EXHIBIT 10.11
ACCESS SERVICES, INC.
TRANSACTION PROCESSING SERVICES AGREEMENT
This Agreement ("Agreement") is made effective as of the 1st day of
August 1998, ("Effective Date") by and between Access Services, Inc., a Georgia
corporation with its principal place of business at 1111 Alderman Drive, Suite
490, Alpharetta, Georgia 30005 ("ASI"), and Equifax Card Services, Inc., a
Florida corporation with its principal place of business at 11601 Roosevelt
Boulevard, St. Petersburg, Florida 33716 Equifax
BACKGROUND INFORMATION
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ASI owns and operates a computer system for the processing of various
types of transaction data, including, but not limited to, transaction data
originating from credit, debit and check payment methods (the "ASI System").
Equifax provides transaction related products and services to banks, other
financial institutions and their merchant customers (individually, a "Merchant"
or collectively, "Merchants"). Equifax desires to utilize the ASI System for its
own use and use by Merchants, and the parties desire to set forth the terms and
conditions whereby ASI will provide such services. Accordingly, for and in
consideration of the promises and mutual covenants hereinafter set forth and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
OPERATIVE PROVISIONS
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1. SERVICES PROVIDED.
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1.1 ASI will make available to Equifax and the Merchants the services
of the ASI System for the online and batch processing of transactions
originating from Visa, MasterCard, American Express, Diners Club, Novus, JCB,
Carte Blanche, Fleet, proprietary credit cards, debit cards and checks from
merchants who subscribe to authorization services from Equifax Check Services,
Inc. (ASI shall adapt the ASI System to accommodate the check authorization
applications developed by Equifax Check Services, Inc., within 90 days of the
Effective Date). The foregoing services will include authorization, draft
capture, electronic transmission of the data for settlement and provision of
summary transaction reports to Equifax. ASI will not make available, or offer to
promote. any services to Merchants that are competitive to the Merchant Services
offered by Equifax, including any services provided by or available from Equifax
Check Services, Inc. From time to time, during the term of this Agreement, the
parties may add to the services provided on the ASI System and made available to
Merchants. ASI grants Equifax the authority to provide Merchants with the
necessary information so that Merchants may access and use the ASI System,
including granting Equifax a perpetual, world-wide, royalty-free license to
distribute and sublicense ASI's point-of-sale terminal applications to
Merchants. The fees for utilization of the services of the ASI System are set
forth in section 2.
1.2 ASI will make available to Equifax additional goods and transaction
processing services as requested by Equifax and agreed to by ASI. Upon receipt
notice of Equifax's request for such services, ASI will respond within thirty
(30) days to Equifax with either: (i) a proposal detailing the terms by which
ASI will incorporate such services into the ASI System for the use and benefit
of Equifax, including the fees related thereto, or (ii) a statement by ASI
declining Equifax's request. If ASI and Equifax agree upon a proposal for
additional services, such services will be provided to Equifax according to the
terms agreed upon, and unless specifically agreed to the contrary, according to
the terms of this Agreement.
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1:3 ASI will provide to Equifax the services necessary for the
researching, retrieval and archiving of he data associated with the transactions
processed on behalf of Equifax and of the Merchants through the ASI System. ASI
will make such services available in the same manner and in accordance with the
same policies finder which ASI makes such services available to all of its
clients, and in no event shall such services fail to meet industry accepted
standards or fail to comply with all applicable by-laws, rules, regulations or
laws, including =hose promulgated by Visa, MasterCard, American Express, Diners
Club, Novus, JCB, and Carte Blanche. The fees for such services will be the fees
set forth in the attached ASI Pricing Schedule.
2. FEES.
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2.1 Equifax will pay ASI the fees and charges set forth in the ASI
Pricing Schedule, attached, for its use of ASI services and the ASI System. If
any Merchant previously authorized by Equifax to use the services of the ASI
System is no longer so authorized by Equifax, Equifax will give ASI at least ten
(10) days prior written notice, and Equifax will be responsible for all fees
associated with Merchant transactions that occur prior to the expiration of the
ten (10) day notice period.
2.2 Equifax will pay ASI a minimum of $10,000.00 a month in total fees
commencing one (1) year after the Effective Date.
2.3 All fees and charges are stated exclusive of any applicable taxes
or assessments, and Equifax will pay an additional amount equal to any
applicable taxes or assessments which may be levied or assessed by any
governmental or taxing authority, for the services provided hereunder, and the
supplies furnished by ASI in rendering the services, except such taxes as may be
based solely on ASI's net income. In the event ASI pays any such tax or
assessment, Equifax will reimburse ASI within thirty (30) days' notice of such
payment.
2.4 ASI reserves the right to increase the fees and charges set forth
in this Agreement as of the following period by giving at least sixty (60) days
advance written notice prior to the end of the then-current period.
3. PAYMENT.
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3:1 ASI will electronically draft Equifax's primary merchant clearing
account or such other account specified in writing to ASI, at Equifax's
financial institution, for payment of the invoices sent to Equifax. The
electronic draft will occur on the twentieth (20th) day of the month following
the month services are provided and will be accomplished via the Automated
Clearing House (ACH).
4. PROTOCOLS AND NETWORK CONFIGURATION.
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4.1 Equifax and the Merchants will access directly the ASI System
utilizing data communication protocols, transaction formats and point-of-sale
devices approved by ASI for use with and on the ASI System.
4.2 ASI will provide, upon request, installation, servicing and
maintenance of point-of-sale devices and related equipment, in the Merchants'
facilities, and the connection of those devices to the ASI System in compliance
with the ASI requirements as attached.
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4.3 ASI reserves the right to change all or part of the protocols and
the network configuration used by ASI in providing the services of the ASI
System, provided that if any change in the network configuration would require
the Merchants to change data communication protocols or communication networks,
ASI will provide Equifax with sixty (60) days prior written notice.
4.4 ASI will provide and maintain various network services for the use
of Merchants and ASI's other clients. Equifax will pay for the use of these
network services on a per transaction fee basis or as provided under the
communication fees section of the ASI Pricing Schedule, section 13.
5. AUDIT PROCEDURE.
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ASI agrees that the performance of its services for Equifax hereunder is subject
to examination by the authorized representatives of Equifax, Equifax's auditors,
federal bank examiners, and/or representatives of other federal and state
regulatory agencies. Upon notice at least ten (10) days in advance of any audit
or examination request, ASI will allow such auditors and/or examiners access to
ASI's place of business during normal business hours and furnish such auditors
and/or examiners with information, data and reports as are reasonably requested
by them. If the request for an audit or examination concerning Equifax's
business does not originate from Equifax, ASI will notify Equifax in writing of
such request. If ASI is provided a written request concerning such audit or
examination, ASI will likewise provide a copy to Equifax. Notwithstanding
anything in this section 5 to the contrary, ASI will not be responsible to
furnish or provide access to any information which is not directly related to
Equifax's business or provision of transaction processing by ASI for Equifax.
6. CONFIDENTIAL INFORMATION.
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6.1 Both parties. shall treat all information designated by the
providing party as proprietary ("Confidential Information"), as a trade secret
and strictly confidential, including, without limitation, as to ASI, the System
and information relating to the System and, as to Equifax, all Merchant
information. Both parties certify that they shall utilize Confidential
Information only as provided in this Agreement. Both parties shall restrict
disclosure of Confidential Information to their employees and agents solely on a
"need to know" basis; advise their own employees and agents of their own
obligations to maintain the confidentiality of Confidential Information; and use
all means necessary to comply with the confidentiality obligations of this
Agreement. Notwithstanding anything in this Agreement to the contrary, both
parties shall not be obligated to preserve the confidential nature of any
Confidential Information which: (i) was previously known; (ii) is or becomes
available to any member of the public by other than unauthorized disclosure;
(iii) was or is independently developed; (iv) is released for disclosure with
written consent; or (v) is received from a third party to whom the information
was disclosed without restriction. Disclosure of Confidential Information shall
not be precluded if the disclosure is: (i) required by law; (ii) is in response
to a valid order of a court or other governmental body of the United States,
provided, however, that the receiving party shall first have given written
notice to the providing party and made a reasonable effort to obtain a
protective order requiring the information so disclosed be used only for the
purpose set forth in the original order.
6.2 Each party expressly acknowledges and agrees that its failure to
comply with the provisions of section 6.1 herein will cause irreparable harm and
damage to the disclosing party for which the disclosing party will have no
adequate remedy at law. Each party further agrees that it shall not raise the
reparability of harm or the adequacy of remedy as a defense to any action
brought by the other party to enjoin use of the Confidential Information or to
obtain other equitable or legal relief.
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6.3 ASI shall disclose promptly to Equifax, any and all discoveries,
improvements, copyrights, systems or computer programs based, in whole or in
part, on Equifax's Confidential Information that it may create solely or jointly
during the term of this Agreement (collectively and individually, "Derivative
Works"). The exclusive right of ownership, relating to the Derivative Works, is
and shall remain the exclusive property of Equifax. ASI shall, upon request,
sign all documents necessary to vest title in Equifax to any copyright
application prepared by Equifax and covering the Derivative Works.
7. WARRANTIES AND LIMITATION OF LIABILITY.
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7.1 ASI warrants and represents to Equifax that:
(i) It is duly organized and in good standing under applicable
law.
(ii) The execution and performance of this Agreement is within
its corporate powers.
(iii) During the term of this Agreement, it will comply with all
federal, state and local laws Ad regulations applicable to
the duties to be performed by it under this Agreement.
(iv) There is no action, suit or proceeding pending or, to its
knowledge, threatened that might impair its ability to
perform its obligations under this Agreement.
(v) By transmitting an authorization request to Equifax through
the Internet, if applicable, it has authenticated: (a) the
electronic message or transaction which formed the basis for
the authorization request; (b) the identification of the
cardholder; (c) the identification of the issuer; (d) the
data contained in the electronic transaction which
precipitated the authorization request; and (e) the
identification of the Merchant who is selling the goods or
services to the Cardholder.
(vi) Any information transmitted to Equifax by ASI is free from
mistakes, omissions, errors, viruses, or other defects which
could cause delays in the operation of, transmission from,
or otherwise damage any records, programs or services of
Equifax;
(vii) It will promptly notify Equifax if it discovers any
mistakes, omissions, errors, viruses, or other defects
described above and further inform Equifax .of: (a) the date
it was discovered; (b) the method of transmission or
causation; and (c) the corrective action taken by ASI.
(viii)It will use its best efforts to provide prompt and efficient
services and have the ASI System operating on a 24 hour per
day, 7 day per week basis;
(ix) It will, at its expense, use best efforts to correct any
errors which are due to malfunction of ASI's computers,
operating systems, programs, or the ASI System, or errors by
ASI's employees or agents within 2 hours after the error is
discovered. (Equifax reserves the right to suspend its
performance and/or terminate this Agreement without penalty
if ASI cannot correct the error within 48 hours of notice);
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(x) The Software, hardware and equipment utilized by ASI to
perform services under this Agreement and the ASI System
include, or shall include, at no additional cost to Equifax,
design and performance capabilities so that prior to,
during, and after the calendar year 2000, they will not
produce invalid or incorrect results or an abnormal ending
to transactions because of the year 2000 date change;
(xi) Its services are in compliance with the highest industry
standards; and
(xii) Its services and the ASI System will be available for use by
Merchants 99 % of the time.
7.2 ASI shall not be liable for failure to provide services if such
failure is due to any cause or condition beyond its reasonable control. Such
causes or conditions shall include, but shall not be limited to, acts of God or
of the public enemy, acts of the Government in either its sovereign or
contractual capacity, fires, floods, epidemics, quarantine restrictions,
strikes, mass shortages of labor or materials, freight embargoes, unusually
severe weather, electrical power failures, or other similar causes beyond ASI's
control and ASI shall have no liability for losses, expenses or damages,
ordinary, special or consequential resulting directly or indirectly form such
causes. If ASI's failure to provide the services under this Agreement is caused
by the default of a subcontractor, and if such default arises out of causes
beyond the control of both ASI and the subcontractor, ASI shall not be liable
unless the supplies or services under this Agreement to be furnished by the
subcontractor were obtainable from other sources in sufficient time to permit
ASI to fulfill its obligations hereunder and at a cost substantially the same as
ASI was obligated to pay such subcontractor.
7.3 UNDER NO CIRCUMSTANCES SHALL ASI BE LIABLE FOR ERRORS OR FAILURES
CAUSED BY EQUIFAX'S SOFTWARE OR OPERATIONAL SYSTEMS. THE WARRANTIES IN THIS
SECTION ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, AND EQUIFAX
HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING, BUT
NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE FOR A
PARTICULAR PURPOSE.
7.4 Neither party shall require the other party to take any action in
performing its obligations under this Agreement which would result in the other
party's being in violation of any applicable law or regulation promulgated by
any governmental or quasi governmental body.
7.5 Each party shall indemnify and hold harmless the other party from
and against any and all claims, actions, demands, losses, costs, expenses,
liabilities and other amounts including, without limitation, legal fees, costs
and expenses (including such fees, costs and expenses of appeals), whether or
not litigation is commenced, imposed upon, incurred by or asserted against the
indemnified party, arising out of this Agreement. NOTWITHSTANDING THE FOREGOING,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT OR
CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF THE
PARTIES HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGE.
7.6 Notwithstanding anything to the contrary in this Agreement, if
notified of any action brought against Equifax or any Merchant based on a claim
that services provided by ASI pursuant to this Agreement or the ASI System
infringe a patent or copyright, ASI will defend such action at its expense and
will promptly pay any and all fees, costs or damages that may be awarded in such
action or resulting settlement, and, in addition, will promptly pay all
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attorneys' fees, investigation fees and costs incurred by Equifax or Merchants
as a result of the action brought against Equifax and/or Merchant. In the event
that a final injunction is obtained against Equifax or a Merchant prohibiting
use of ASI services, the ASI System or of any part thereof by reason of
infringement of a patent or copyright, ASI will at its option either: (i) at its
expense, procure the right for Equifax or the Merchant to continue using the ASI
services or the ASI System; or (ii) procure and implement, at its expense,
alternative. services which furnish the same or substantially the same
functionality.
8. COMPLIANCE WITH OPERATING RULES AND REGULATIONS.
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8.1 ASI and Equifax will each be responsible to know and conform in
their respective capacities to the bylaws, rules, regulations and other
requirements as established by Visa, MasterCard, Discover, American Express,
Diners Club, Carte Blanche, JCB, various debit networks and any other like
entity necessary for the provision of services of the ASI System.
8.2 ASI will not be responsible for failure of Equifax, or Equifax's
employees and subcontractors, or the Merchants, their employees and
subcontractors, to comply with any of the rules or regulations stipulated in
section 8.1. Equifax will not be responsible for failure of ASI, ASI's employees
and subcontractors or the Merchants, their employees and subcontractors to
comply with any of the rules and regulations stipulated in section 8.1. Either
party suffering damages, costs, fines or penalties due to the fault of the other
relating to the rules or regulations stipulated in section 8.1 shall be
indemnified by the other in accordance with section 7.3 herein.
8.3 For the purposes of compliance with the VISA operating
regulations, Equifax appoints ASI as its agent to use the VISA data process and
communication system, and agrees to register ASI, as its agent, with VISA
pursuant to such regulations. To the extent any other credit card association
- -or credit card issuing company, now or in the future requires a similar agent
designation and registration, Equifax will so designate and register ASI.
9. INTEREST AND ATTORNEYS FEES.
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All amounts unpaid when due under this Agreement shall bear interest at
the rate of one and one-half percent (1 1/2%) per month (but in no event more
than the highest rate of interest legally allowable) on such delinquent amount
from its due date until the date of payment. If an attorney is employed to
enforce the terms of this Agreement, the prevailing party in any litigation
shall be entitled to recover its reasonable attorney's fees and court costs from
the other party.
10. DEFAULT.
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Either party shall be deemed to be in default under this Agreement if
it fails to perform any of its material obligations hereunder and such failure
is not cured within thirty (30) days after notice from the other party.
11. TERM AND TERMINATION.
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11.1 The initial period of this Agreement shall be three (3) years.
Thereafter, this Agreement shall automatically renew for successive one (1) year
periods unless earlier terminated as set forth herein.
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11.2 Either party hereto may terminate this Agreement in its entirety
upon written notice thereof if the other party files a voluntary petition for a
reorganization under the Bankruptcy Code or a petition shall he filed by any
third party for a reorganization and such proceeding is not dismissed in ninety
(90) days, or if any substantial part of such party's property becomes subject
to any levy, seizure, assignment, application or sale for or by any creditor or
governmental agency.
11.3 In addition to any other remedies at law or in equity to which it
is entitled, Equifax reserves the right to suspend its performance or
immediately terminate all or any part of this Agreement, without notice, if ASI:
(i) is in breach of this Agreement for more than ten (10) business days: (ii) is
the subject of a dissolution or bankruptcy action; (iii) suffers the appointment
of a receiver or trustee; (iv) transfers all, or substantially all, of its
assets; or (v) commits any act with the intent to defraud Equifax. Due to the
likelihood of irreparable injury, Equifax shall also be entitled to an
injunction prohibiting any breach of section 6 or subsection 7.5.
11.4 If ASI terminates this Agreement due to Equifax's default, ASI
will nevertheless be entitled to receive any sums due and owing to ASI for
services previously rendered. The termination of this Agreement will not effect
any rights or remedies accruing to either party prior to termination.
11.5 Equifax's and ASI's respective rights and obligations under
sections 5, 6, 7, 10, 11.4 and 11.8 will survive the termination of this
Agreement.
12. GENERAL PROVISIONS.
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12.1 Governing Law; Jurisdiction. The parties submit to the
jurisdiction of, and this Agreement shall be governed by the laws of, the state
of Florida. Venue for any action arising out of this Agreement shall be in a
state court of competent jurisdiction in Pinellas County, Florida. The
prevailing party in any such action shall be entitled to the recovery of its
reasonable attorney's fees, costs and expenses.
12.2 Assignment. Neither party will assign this Agreement without the
prior written consent of the other; except that upon a merger, reorganization or
sale of all or substantially all the assets of the assigning party, no prior
written consent is required.
12.3 Modification Non-Waiver. No modification to this Agreement, nor
any waiver of any rights, will be effective unless consented to in writing by
the party to be charged and the waiver of any breach or default will not
constitute a waiver of any other right hereunder or any subsequent breach or
default.
12.4 Notices. Any required notices hereunder shall be given in writing
by either party by depositing such notice at the address of the other party set
forth in the preamble to this Agreement, or to such other address as either
party may substitute by written notice to the other in the manner contemplated
herein, in the United States mail, postage prepaid, and shall be deemed served
when mailed. Notice or demand may also be given in writing delivered by courier,
telecopier, or similar method, and such notice or demand shall be deemed to have
been given when the telex, cablegram, writing, or other form of notice or demand
is personally delivered to the party. Notwithstanding the foregoing, notice of
intent to terminate this Agreement and notice of default shall be sent by
certified or registered mail, return receipt requested.
12.5 Compliance with Laws. Equifax and ASI will comply with all laws
and regulations of any governmental agency in the conduct of their respective
businesses and furtherance of their performance under this Agreement. If there
is a conflict between a part of this Agreement and any present or future law or
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regulation, the part of this Agreement that is affected shall be curtailed only
to the extent necessary to bring it within the requirements of the law or
regulation.
12.6 Entire Agreement. This Agreement and the attachment hereto
constitute the entire Agreement between the parties hereto with respect to the
subject matter hereof and shall supersede, cancel, and replace any prior
understandings and agreements pertaining to the subject matter hereof.
12.7 Binding Nature. This Agreement will be binding on the parties,
their successors and assigns (if any).
12.8 Relationship of Parties. This Agreement does not constitute the
parties as partners, joint venturers or agents of each other, and neither party
shall so represent itself.
12.9 Severability. If there is a conflict between a part of this
Agreement and any present or future law, the part of this Agreement that is
affected shall be curtailed only to the extent necessary to bring it within tine
requirement of that law.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the day and year first above written.
EQUIFAX CARD SERVICES, INC. ACCESS SERVICES, INC.
By: /s/ signature illegible By: /s/ signature illegible
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Title: SVP & General Manager Title: President
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Date: 9-18-98 Date: 8-1-98
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