EXHIBIT 10.4
CANADIAN IMPERIAL BANK OF COMMERCE
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NATIONAL DATA PAYMENT SYSTEMS, INC.
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GLOBAL PAYMENTS INC.
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GLOBAL PAYMENTS CANADA INC.
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TRANSITION AGREEMENT
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TABLE OF CONTENTS
Page
ARTICLE 1 INTERPRETATION..................................................1
1.1 Definitions.....................................................1
1.2 Headings and References.........................................3
1.3 Number and Gender...............................................3
1.4 Business Days...................................................3
1.5 Currency and Payment Obligations................................3
1.6 Statute References..............................................3
1.7 Section and Schedule References.................................4
1.8 Parties.........................................................4
ARTICLE 2 SERVICES........................................................4
2.1 Scope of Services...............................................4
2.2 Billing Services................................................4
2.3 Performance of Services.........................................4
2.4 Compliance with Directions......................................5
2.5 Subcontracting of Transition Services...........................5
2.6 Use of Software.................................................5
2.7 Changes to Procedures...........................................6
2.8 Changes in Law, etc.............................................6
2.9 Problem Notification............................................6
2.10 Root-Cause Analysis and Resolution..............................6
ARTICLE 3 PAYMENT FOR SERVICES............................................7
3.1 Fees for Services...............................................7
3.2 Reimbursement of Fees and Expenses..............................7
3.3 Credit for Aggregate Employee Retention Award...................7
3.4 Invoices........................................................7
3.5 Payment.........................................................7
3.6 Applicable Taxes................................................7
3.7 Withholding Taxes...............................................8
3.8 Disputed Fees...................................................8
ARTICLE 4 RELATIONSHIP BETWEEN THE PARTIES................................8
4.1 Transition Representatives......................................8
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TABLE OF CONTENTS
(continued)
Page
4.2 Communications..................................................8
4.3 Bank Reports....................................................8
4.4 Confidentiality and Ownership of Data...........................9
4.5 Bank Service Locations..........................................9
ARTICLE 5 TRANSITION......................................................9
5.1 Transition......................................................9
5.2 Transition Plan.................................................9
ARTICLE 6 EMPLOYEES.......................................................9
6.1 Supervision of Employees........................................9
6.2 Terms of Employment of Transition Employees....................10
ARTICLE 7 DISCLAIMER OF WARRANTY.........................................10
7.1 No Warranty....................................................10
ARTICLE 8 LIMITATION OF LIABILITY AND INDEMNIFICATION....................10
8.1 Limitation of Liability........................................10
8.2 Force Majeure..................................................10
8.3 Indemnification................................................11
8.4 Recovery.......................................................11
8.5 Reimbursement for Unrecovered Chargebacks and Credit Losses....11
ARTICLE 9 TERM AND TERMINATION...........................................13
9.1 Term of Agreement..............................................13
9.2 Termination of a Transition Service............................13
9.3 Business Recovery Plan.........................................13
9.4 Bank Default...................................................13
9.5 NDPS/GPI Canada Default........................................14
9.6 Notice of Default..............................................14
9.7 Remedies of NDPS and GPI Canada................................14
9.8 Remedies of the Bank...........................................15
9.9 Non-Exclusive Remedies.........................................15
9.10 Equitable Remedies.............................................15
9.11 Assignment of Three Party Agreements...........................15
9.12 Consequences of Failure to Implement Transition Plan...........16
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TABLE OF CONTENTS
(continued)
Page
ARTICLE 10 SOFTWARE RIGHTS ON TERMINATION.................................16
10.1 Software.......................................................16
ARTICLE 11 GENERAL........................................................17
11.1 PeriPheron Thermal Printers....................................17
11.2 Dispute Resolution.............................................17
11.3 Contracts and Invoicing........................................17
11.4 Independent Contractor.........................................17
11.5 Entire Agreement; Amendment....................................18
11.6 Severability...................................................18
11.7 Further Assurances.............................................18
11.8 Successors and Assigns.........................................18
11.9 Modification and Waiver........................................18
11.10 Notices........................................................19
11.11 Governing Law; Interpretation..................................20
11.12 Consent to Jurisdiction........................................20
11.13 Third-Party Beneficiaries......................................21
11.14 Time of Essence................................................21
11.15 Counterparts...................................................21
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TRANSITION AGREEMENT
This TRANSITION AGREEMENT, dated as of the 20 day of March,
2001, between CANADIAN IMPERIAL BANK OF COMMERCE, a bank chartered under the
laws of Canada (the "BANK"), NATIONAL DATA PAYMENT SYSTEMS, INC., a New York
corporation ("NDPS"), GLOBAL PAYMENTS CANADA INC., an Ontario corporation ("GPI
CANADA") and GLOBAL PAYMENTS INC. ("GLOBAL PAYMENTS") as the guarantor of the
obligations of NDPS and GPI Canada hereunder, as described on the last page of
this Agreement.
WHEREAS the Bank and NDPS (and National Data Corporation and
Global Payments as guarantors of NDPS' obligations) entered into an asset
purchase agreement dated November 9, 2000 (the "ASSET PURCHASE Agreement"),
pursuant to which the Bank agreed to sell to NDPS, or an Affiliate of NDPS, the
Assets Sold (as defined in the Asset Purchase Agreement);
AND WHEREAS the Bank, GPI Canada and NDPS (and Global Payments
as the guarantor of the obligations of GPI Canada and NDPS) have entered into a
marketing alliance agreement dated the date hereof (the "MARKETING ALLIANCE
AGREEMENT") which sets out their respective rights and obligations in connection
with the Merchant Business (as defined in the Asset Purchase Agreement) from and
after the Closing Date;
AND WHEREAS, prior to the Closing Date, the Bank provided
various support services to the Merchant Business, which the Bank intends to
provide to NDPS and GPI Canada on a transitional basis pursuant to the terms of
this Agreement to assist NDPS and GPI Canada in performing the NDPS Services
which include certain services to be provided by the Bank to Merchants;
AND WHEREAS the execution and delivery of this Transition
Agreement by the Bank and NDPS is a condition precedent to the completion of the
transactions contemplated in the Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the closing of the
transactions contemplated by the Asset Purchase Agreement and the mutual
covenants and agreements set forth herein, the Bank, GPI Canada and NDPS agree
as follows:
ARTICLE I
INTERPRETATION
1.1 DEFINITIONS. In this Agreement and in any Schedules hereto,
unless the context otherwise requires, the following terms shall have the
meanings set forth below. Capitalized terms used in this Agreement without
definition shall have the meaning ascribed thereto in the Marketing Alliance
Agreement.
"ADDITIONAL COSTS" has the meaning set forth in Section 3.3;
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"AGREEMENT" means this agreement and the schedules attached
hereto as it or they may be amended or supplemented from time to time, and the
expressions "hereof", "herein", "hereto", "hereunder", or "hereby" and similar
expressions refer to this Agreement and not to any particular section or other
portion of this Agreement;
"ASSET PURCHASE AGREEMENT" has the meaning set forth in the
recitals;
"ASSETS SOLD" has the meaning set forth in the Asset Purchase
Agreement;
"BANK DEFAULT" has the meaning set forth in Section 9.4;
"BUSINESS RECOVERY PLAN" has the meaning set forth in Section
9.3;
"CLIENT RELATIONS REPRESENTATIVE" has the meaning set forth in
Section 4.1;
"CLOSING" has the meaning set forth in the Asset Purchase
Agreement;
"CLOSING DATE" has the meaning set forth in the Asset Purchase
Agreement;
"DIRECTION" means a direction by NDPS and/or GPI Canada to the
Bank with respect to the manner in which a Transition Service is performed;
"EFFECTIVE TIME" has the meaning set forth in the Asset
Purchase Agreement;
"EMPLOYEE NOTICE" has the meaning set forth in Section 9.2;
"EMPLOYMENT-RELATED CLAIMS" has the meaning set forth in
Section 6.3;
"INTRIA TRANSITION SERVICES" has the meaning set forth in
Schedule 2.1;
"LEGAL CHANGE" has the meaning set forth is Section 2.8;
"NDPS DEFAULT" has the meaning set forth in Section 9.5;
"NDPS DESIGNATE" has the meaning set forth in Section 9.11;
"OSFI" has the meaning set forth in Section 9.3;
"PAYROLL SERVICES" has the meaning set forth in Section 6.3;
"PERIPHERON" has the meaning set forth in Section 11.1;
"PRIME RATE" means the commercial lending rate of interest
which the Canadian Imperial Bank of Commerce quotes in Toronto as the reference
rate of interest (commonly known as "prime") for purposes of determining the
rate of interest that it charges to its commercial customers for loans in
Canadian funds;
"SERVICE LEVELS" has the meaning set forth in Section 2.3;
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"STANDARD OF CARE" has the meaning set forth in Section 2.3;
"TERM" means, in respect of a Transition Service, the
twenty-four (24) month period commencing on the Closing Date and ending on the
second anniversary of the Closing Date;
"TERMINATION NOTICE" has the meaning set forth in Section 9.2;
"THREE PARTY AGREEMENTS" has the meaning set forth in the
Asset Purchase Agreement;
"TRANSFERRED EMPLOYEES" has the meaning set forth in the Asset
Purchase Agreement;
"TRANSITION DATE" means, in respect of a Transition Service,
the date on which such Transition Service is terminated in accordance with this
Agreement;
"TRANSITION EMPLOYEES" has the meaning set forth in the Asset
Purchase Agreement;
"TRANSITION PERIOD" has the meaning set forth in Section 2.1;
"TRANSITION PLAN" has the meaning set forth in Section 5.2;
"TRANSITION SERVICE" and "TRANSITION SERVICES" have the
meanings set forth in Section 2.1; and
"TRANSITION SUPPORT SERVICE" and "TRANSITION SUPPORT SERVICES"
have the meanings set forth in Schedule 3.1.
1.2 HEADINGS AND REFERENCES. The division of this Agreement into
Articles and Sections, the insertion of headings, and the provision of any table
of contents are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
1.3 NUMBER AND GENDER. Unless the context requires otherwise,
words importing the singular include the plural and vice versa and words
importing gender include all genders.
1.4 BUSINESS DAYS. If any payment is required to be made or other
action is required to be taken pursuant to this Agreement on a day which is not
a Business Day, then such payment or action shall be made or taken on the next
Business Day.
1.5 CURRENCY AND PAYMENT OBLIGATIONS. Except as otherwise
expressly provided in this Agreement, all statements of or references to dollar
amounts in this Agreement are to lawful money of Canada.
1.6 STATUTE REFERENCES. Any reference in this Agreement to any
statute or any section thereof shall, unless otherwise expressly stated, be
deemed to be a reference to such statute or section as amended, restated or
re-enacted from time to time.
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1.7 SECTION AND SCHEDULE REFERENCES. Unless the context requires
otherwise, references in this Agreement to Sections or Schedules are to
Sections, or Schedules of this Agreement. The Schedules to this Agreement form
part of this Agreement and are as follows:
SCHEDULES
Schedule 2.1 - Transition Services
Schedule 2.2 - Service Levels
Schedule 3.1 - Fees
Schedule 4.1 - Client Relations Representatives
Schedule 9.11 - Three Party Agreements
1.8 PARTIES. GPI Canada is a party to this Agreement for the
purposes of exercising such rights and fulfilling such obligations that relate
to the performance of the business of acquiring and leasing point-of-sale
terminals to Merchants and acting as an independent sales organization to the
extent that such activities relate to the conduct of the Merchant Business, and
all references to "NDPS and/or GPI Canada" herein shall be interpreted to mean
the relevant party as the context requires, provided that NDPS guarantees the
obligations of GPI Canada in accordance with the provisions of the last page of
this Agreement.
ARTICLE 2
SERVICES
2.1 SCOPE OF SERVICES. Upon the terms and subject to the
conditions of this Agreement, the Bank, to the extent requested by NDPS and/or
GPI Canada, shall provide to NDPS and/or GPI Canada the services relating to the
Merchant Business described in SCHEDULE 2.1 hereto (each, individually, a
"TRANSITION SERVICE" and collectively, the "TRANSITION SERVICES"), each such
Transition Service to be provided during the Term for such Transition Service,
unless the Term for such Transition Service is otherwise terminated in
accordance with Article 9. For greater certainty, without limiting the
foregoing, in no circumstances shall the Term during which the Bank is to
provide a Transition Service under this Agreement extend for a period longer
than twenty-four (24) months following the Closing Date (the "TRANSITION
PERIOD"), except as otherwise agreed in writing by the Bank, NDPS and/or GPI
Canada.
2.2 BILLING SERVICES. NDPS and GPI Canada hereby direct the Bank
to act as its billing intermediary and issue invoices directly to Merchants in
respect of the supply of services by NDPS and GPI Canada pursuant to the
Merchant Agreements. All amounts payable under any invoices issued to Merchants
under this Section 2.2, including all applicable taxes, shall be paid by the
Merchants directly to NDPS and NDPS and/or GPI Canada shall remit all applicable
taxes to the appropriate taxing authority.
2.3 PERFORMANCE OF SERVICES. The Bank agrees to: (a) provide the
Transition Services in a prompt, and efficient manner; (b) use due care in
performing all Transition Services hereunder in the ordinary course of the
Merchant Business and in accordance with good business practices and management
techniques; and (c) use Commercially Reasonable Efforts to comply
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with the service levels set forth on SCHEDULE 2.3 (the "SERVICE Levels"), as
applicable ((a), (b) and (c) collectively, the "STANDARD OF CARE"). NDPS and GPI
Canada agree that the Bank shall be deemed to have provided the Transition
Services in accordance with the Standard of Care if the Bank performs such
Transition Services in substantially the same manner as such services were
performed during the twelve (12) month period immediately preceding the Closing
Date. Within 60 days of the Closing Date, the Bank shall, with input and
assistance from NDPS and/or GPI Canada, provide NDPS and/or GPI Canada with a
schedule of the primary service levels achieved by the Bank during the twelve
(12) month period immediately preceding the Closing Date, such service levels
shall serve as the basis for the deemed performance in accordance with the
Standard of Care as described in the preceding sentence. The Bank agrees to: (a)
comply with all applicable Laws, Association Rules and Clearing System Rules,
including, but not limited to, those concerning the processing of Chargebacks
and Credit Losses, dispute resolution and arbitration; and (b) use Commercially
Reasonable Efforts to ensure that Transferred Employees have access to e-mail.
2.4 COMPLIANCE WITH DIRECTIONS. The Bank acknowledges that NDPS
and GPI Canada have an interest in the manner in which the Bank performs the
Transition Services and operates the division responsible for performing such
Transition Services as such performance and operations has a direct impact on
the profitability of the Merchant Business. The Bank agrees that it shall in
good faith give due and timely consideration to all Directions that are provided
to the Bank by the Client Relations Representative of NDPS and GPI Canada, or a
designate of such Person, and to meet regularly with such Client Relations
Representative to discuss such Directions. In the event that the Bank follows a
Direction and, as a result of following such Direction, fails to perform the
Transition Services in substantially the same manner as such services were
performed during the twelve (12) month period immediately preceding the Closing
Date, NDPS and GPI Canada acknowledge and agree that such failure to meet the
Standard of Care shall not be considered a Bank Default, notwithstanding
anything to the contrary in this Agreement.
2.5 SUBCONTRACTING OF TRANSITION SERVICES. The Bank shall have the
right to subcontract any of the Transition Services that, prior to the Closing
Date, were performed by Intria-HP Corporation and Intria Items Inc. The Bank
acknowledges and agrees that it shall not subcontract any other Transition
Services without the prior written approval of NDPS and/or GPI Canada, such
approval not to be unreasonably withheld. NDPS and GPI Canada acknowledge and
agree that they shall not have a direct contractual relationship with any of the
subcontractors hired by the Bank to perform the Transition Services. The Bank
shall use Commercially Reasonable Efforts to give NDPS and/or GPI Canada the
benefit of any cost reductions or savings the Bank receives from any
subcontractors, including Intria-HP Corporation and Intria Items Inc.
2.6 USE OF SOFTWARE. Each of NDPS and GPI Canada, as the owners of
any and all software included in the Assets Sold, consents to the execution,
use, access and copying of such software by the Bank and its Affiliates,
provided that any such execution, use, access or copying by the Bank or its
Affiliates is done solely for the purposes, and in accordance with the terms, of
this Agreement.
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2.7 CHANGES TO PROCEDURES. The Bank shall have the right to change
the procedures it uses in performing the Transition Services from time to time
upon the mutual agreement of the parties.
2.8 CHANGES IN LAW, ETC. The Bank shall, with the co-operation and
assistance of NDPS and/or GPI Canada, identify and assess the impact on the
Transition Services of a change in applicable Laws, Association Rules or
Clearing System Rules that relate to the Transition Services (a "LEGAL CHANGE").
If NDPS, GPI Canada or the Bank becomes aware of an impending or actual Legal
Change, it shall notify the other parties of such Legal Change and provide an
assessment of its impact. The parties shall in good faith attempt to agree upon
any required modifications to the Transition Services required as a result of a
Legal Change. While the Bank is making any agreed upon modifications resulting
from a Legal Change, the Bank shall use Commercially Reasonable Efforts to
continue to provide the Transition Services at the specified Service Levels. If,
however, such Legal Change prevents the Bank from meeting the Service Levels,
the Bank shall use its Commercially Reasonable Efforts to arrange a reasonable
solution that gives effect to the intent of this Agreement as closely as
practicable and that delivers the Transition Services in the most commercially
reasonable manner in the circumstances. If such Legal Change materially affects
the Bank's cost of providing the Transition Services, the Bank, NDPS and/or GPI
Canada shall in good faith negotiate an adjustment of the applicable Service
Levels.
2.9 PROBLEM NOTIFICATION. The Bank shall notify NDPS and GPI
Canada in the event that the Bank becomes aware of an event, occurrence, error,
defect or malfunction materially affecting the ability of the Bank to perform
the Transition Services. NDPS and/or GPI Canada shall notify the Bank in the
event that either GPI Canada or NDPS, as the case may be, becomes aware of an
event, occurrence, error, defect or malfunction materially affecting the ability
of the Bank to perform the Transition Services. Failure by NDPS or GPI Canada to
give any notice pursuant to this Section 2.9 relating to a problem affecting the
Bank shall not relieve the Bank of any liability hereunder. If more than one
problem arises or occurs at one time, the parties shall mutually agree upon the
order of priority in which the problems are to be addressed and resolved.
2.10 ROOT-CAUSE ANALYSIS AND RESOLUTION. The Bank shall, promptly
after:
(a) any material failure of the Bank to provide any of the
Transition Services in accordance with this Agreement;
or
(b) the Bank's repeated failure to provide any of the
Transition Services in accordance with this Agreement,
and in any event within three (3) days of receipt of a notice from NDPS and/or
GPI Canada in respect thereof, commence an analysis to identify the cause of
such failure; and as soon as commercially reasonable thereafter provide a report
detailing the cause of, and procedure for correcting, such failure. In addition,
the Bank shall deliver to NDPS and/or GPI Canada within a commercially
reasonable time a corrective action plan that addresses actions to be taken in
an effort to try to avoid a recurrence of such failure.
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ARTICLE 3
PAYMENT FOR SERVICES
3.1 FEES FOR SERVICES. NDPS and/or GPI Canada shall pay to the
Bank the amounts set forth and calculated in accordance with Schedule 3.1 in
consideration for the Transition Services.
3.2 REIMBURSEMENT OF FEES AND EXPENSES. The parties hereto
acknowledge and agree that in connection with the provision of the Transition
Services in accordance with the terms of this Agreement, the Bank may incur
costs in modifying the physical facilities (for example, new locks and doors)
and technology infrastructure (for example, network security and isolating the
e-mail environment) used by the Merchant Business and setting up adequate
systems and protections (the "ADDITIONAL COSTS"). NDPS and/or GPI Canada agree
that they shall, in addition to their other payment obligations pursuant to this
Article 3, reimburse the Bank for fifty percent (50%) of the Additional Costs
reasonably incurred by the Bank, provided that the Bank has provided NDPS and/or
GPI Canada with 60 days' notice of its need to incur such Additional Costs, such
notice to include an estimate of the Additional Costs to the extent practicable.
For greater certainty, such Additional Costs shall not include any costs
relating to the migration of the technology platform for the Merchant Business
by NDPS and/or GPI Canada.
3.3 CREDIT FOR AGGREGATE EMPLOYEE RETENTION AWARD. The amount
payable to the Bank by NDPS and/or GPI Canada as compensation for the Transition
Services shall be reduced by a one-time credit of $17,183.00.
3.4 INVOICES. The Bank shall deliver, within twenty-one days after
the end of each calendar month, an invoice to NDPS for all amounts payable by
NDPS and/or GPI Canada to the Bank as compensation for Transition Services
performed in the preceding calendar month and any Additional Costs incurred in
the preceding calendar month.
3.5 PAYMENT. Payment of the amounts specified on an invoice
delivered in accordance with Section 3.4 shall be due on the 60th day after the
end of the calendar month to which the invoice relates. The Bank reserves the
right to charge interest on all amounts not paid when due at the Prime Rate or
the maximum rate allowed by law, if less. If amounts specified on an invoice are
disputed and withheld by NDPS and/or GPI Canada, and it is later determined that
such amounts were accurately charged, NDPS and/or GPI Canada will pay such
amount together with the interest thereon determined in accordance with this
Section 3.5 from the date on which payment under such invoice was otherwise due.
3.6 APPLICABLE TAXES. The parties understand that the Transition
Services are not subject to tax under Part IX of the Excise Tax Act (Canada) and
the Act Respecting the Quebec Sales Tax (Quebec) pursuant to Schedule VI, Part
V, Section 7 to the Excise Tax Act (Canada). The parties covenant and agree
that, in any event, they shall cooperate to contest any assessment of goods and
services taxes and to minimize the amount of goods and services tax payable. In
the event that goods and services taxes, or any other taxes, are payable in
connection with the Transition Services and this Agreement, NDPS and/or GPI
Canada shall pay to the Bank all
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applicable sales, value added, use and other taxes (other than income and any
withholding taxes) required under applicable Laws to be paid to the Bank in
respect of the fees payable for Transition Services, including, without
limitation, provincial sales taxes and goods and services taxes.
3.7 WITHHOLDING TAXES. In the event that NDPS does not obtain a
waiver from the Canadian Customs and Revenue Authority ("CCRA") or such other
applicable taxing authority of both: (a) the requirement for the Bank to
withhold and remit applicable withholding tax under Regulation 105 of the Income
Tax Act (Canada); and (b) if applicable, the equivalent requirement under
applicable Quebec tax legislation with respect to any amounts to be transferred
by the Bank to NDPS and/or GPI Canada in connection with the Transition
Services, the Bank shall make such withholdings and remit such amounts to the
CCRA or such other applicable taxing authority as are required under the
legislative requirements that the CCRA or such other applicable taxing authority
has not so waived.
3.8 DISPUTED FEES. NDPS and/or GPI Canada shall notify the Bank
within 120 days of receipt of an invoice of any disputed amounts or the Bank,
and, subject to any adjustments described in Schedule 3.1, NDPS and GPI Canada
shall be deemed to have agreed with the invoice. In the event of any dispute
with respect to the matters set forth in this Article 3, the parties agree that
such dispute shall be settled in accordance with the dispute resolution
mechanism set out in Section 22 of the Marketing Alliance Agreement.
ARTICLE 4
RELATIONSHIP BETWEEN THE PARTIES
4.1 TRANSITION REPRESENTATIVES. Each of the Bank, individually,
and NDPS and GPI Canada, collectively, shall designate, from time to time, a
representative responsible for implementing the provisions of this Agreement and
all communications with the other parties relating to the subject matter of this
Agreement. Until such time as the Bank, or NDPS and GPI Canada, may change their
Client Relations Representative by written notice, the initial Client Relations
Representatives for the Bank, individually, and NDPS and GPI Canada,
collectively, are those individuals set forth in SCHEDULE 4.1.
4.2 COMMUNICATIONS. NDPS, GPI Canada and the Bank agree to provide
all reasonable technical or other information required by the other parties in
connection with the performance of the Transition Services, and the assumption
of responsibility for the performance of the Transition Services by NDPS and/or
GPI Canada and their designated third party providers. The Client Relations
Representatives, or their designates, shall communicate on a regular basis with
respect to the performance of the Transition Services and the implementation of
the Transition Plan and shall act as a liaison between the parties hereto. The
Client Relations Representative of each party hereto, or their designates, shall
be responsible for answering or addressing inquiries or concerns of the other
parties, such inquiries or concerns to be addressed within a reasonable period
of time.
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4.3 BANK REPORTS. The Bank shall provide to NDPS and/or GPI Canada
such reports as the parties shall mutually agree upon from time to time. The
reasonable costs of such reporting shall be borne by NDPS and/or GPI Canada,
except for the costs associated with any reports that are generated in the
Ordinary Course of the Bank's business without additional cost or undue burden
to the Bank.
4.4 CONFIDENTIALITY AND OWNERSHIP OF DATA. The parties agree that
the terms and conditions of the Marketing Alliance Agreement relating to NDPS
Data, Bank Data and Confidentiality, including but not limited to, Sections
10.4, 10.5, 10.7, 11 and 23.11, shall apply to any NDPS Data or Bank Data
obtained or accessed by another party during the Transition Period.
4.5 BANK SERVICE LOCATIONS. The parties acknowledge and agree that
terms and conditions of the Marketing Alliance Agreement relating to Bank
Service Locations, including, but not limited to, Sections 10.6 and 10.8, shall
apply during the Transition Period and NDPS and/or GPI Canada shall be entitled
to exercise of the rights granted thereunder.
ARTICLE 5
TRANSITION
5.1 TRANSITION. NDPS, GPI Canada and the Bank agree to use their
Commercially Reasonable Efforts to effect an orderly operation or transition of
the relevant functions of the Merchant Business during the Transition Period.
The Bank agrees to offer NDPS and GPI Canada reasonable conversion assistance
and consultation in effecting this transition.
5.2 TRANSITION PLAN. NDPS and/or GPI Canada shall develop a
tentative plan (the "TRANSITION PLAN") and shall use Commercially Reasonable
Efforts to deliver to the Bank a copy of such Transition Plan, by the date that
is 120 days following the Closing Date, such Transition Plan to provide for an
orderly method under which NDPS and/or GPI Canada or a third party provider
shall assume responsibility for the performance of the Transition Services. The
Bank shall provide information and assistance to NDPS and/or GPI Canada in the
formulation of the Transition Plan, to the extent reasonably requested by NDPS
and/or GPI Canada. NDPS and GPI Canada shall use Commercially Reasonable Efforts
to implement the Transition Plan and to ensure that such implementation does not
adversely affect the Bank or its ability to provide any of the Transition
Services. In the event that NDPS and/or GPI Canada make any changes to the
Transition Plan, NDPS and/or GPI Canada agree to notify the Bank in writing of
such changes.
ARTICLE 6
EMPLOYEES
6.1 SUPERVISION OF EMPLOYEES. The Bank, NDPS and/or GPI Canada
agree to work together, in good faith, to develop reporting, supervision and
communication arrangements between the employees of the Bank who are responsible
for performing the Transition Services and NDPS and/or GPI Canada to facilitate
the performance of the obligations of the parties under this Agreement and the
Marketing Alliance Agreement.
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6.2 TERMS OF EMPLOYMENT OF TRANSITION EMPLOYEES. The parties
acknowledge that the terms and conditions relating to offers of employment to,
and terms of employment of, Transition Employees and the obligations of GPI
Canada in respect thereof are set out in Section 4.3 of the Asset Purchase
Agreement.
ARTICLE 7
DISCLAIMER OF WARRANTY
7.1 NO WARRANTY. Other than those expressly provided in this
Agreement, there are no representations, warranties or conditions express,
implied or statutory, including but not limited to, any implied warranties or
conditions of merchantable quality or fitness for a particular purpose, made by
the Bank with respect to any and all services, equipment, goods or items,
including without limitation software, provided in the course of performing its
obligations and the Transition Services.
ARTICLE 8
LIMITATION OF LIABILITY AND INDEMNIFICATION
8.1 LIMITATION OF LIABILITY. Should there be any failure in
performance or errors or omissions, the Bank shall use Commercially Reasonable
Efforts to correct such failure in performance or errors or omissions. Except as
the result of a third party claim subject to Section 8.3, in no event shall a
party hereto be liable to another party or any third parties for any special,
indirect or consequential damages, even if such party has been advised of the
possibility of such damage. The Bank shall not be responsible in any manner for
errors or failures of any Person other than those of the Bank, any Affiliate of
the Bank, Intria-HP Corporation, and Intria Items Inc. NDPS and/or GPI Canada
shall not be responsible in any manner for errors or failures of any Person
other than those of NDPS, and/or GPI Canada or any Affiliate of NDPS and/or GPI
Canada or any Merchant Accounting Processor or Independent Sales Organization
designated by NDPS.
8.2 FORCE MAJEURE. None of the parties hereto shall be liable for
a failure or delay in the performance of their obligations under the terms of
this Agreement, including, but not limited to, a failure or delay in providing
the Transition Services, if such failure is due to any Force Majeure Event
affecting the party not performing its obligations, or affecting one of its
subcontractors, provided that such party uses Commercially Reasonable Efforts to
resume performing its obligations hereunder as soon as practicable. If a Force
Majeure Event occurs, the party affected by such Force Majeure Event shall
promptly notify such party by telephone (to be confirmed in writing within 5
days of the inception of such delay) of the occurrence of a Force Majeure Event
and describe in reasonable detail in such notice the circumstances causing the
Force Majeure Event. The parties hereto shall not have any liability for losses,
expenses or damages, ordinary, special or consequential resulting directly or
indirectly from such causes or conditions.
-11-
8.3 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE BANK. Subject to the terms of
this Agreement, the Bank shall indemnify each of NDPS
and GPI Canada and hold each of NDPS and GPI Canada
harmless from any liability, loss, cost or expense,
including reasonable attorneys' fees and expenses
("LOSSES") suffered it or its Affiliates that shall
result from or arise out of (i) the breach by the
Bank of this Agreement; (ii) the Bank's violation of
applicable Laws, Association Rules and Clearing
System Rules; or (iii) the negligence or intentional
wrongdoing of the Bank; provided that if the Bank and
NDPS and/or GPI Canada are jointly sued by a third
party and they are deemed to be liable as joint
tortfeasors, then the allocation of loss between NDPS
and GPI Canada, on the one hand, and the Bank, on the
other hand, shall be determined by the court.
(b) INDEMNIFICATION BY NDPS AND GPI CANADA. Subject to
the terms of this Agreement, each of NDPS and GPI
Canada shall indemnify the Bank and hold the Bank
harmless from any Losses suffered by it or its
Affiliates that shall result from or arise out of (i)
the breach by NDPS or GPI Canada of this Agreement;
(ii) NDPS's or GPI Canada's violation of applicable
Laws, Association Rules and Clearing System Rules; or
(iii) the negligence or intentional wrongdoing of
NDPS or GPI Canada; provided that if the Bank and
NDPS and/or GPI Canada are jointly sued by a third
party and they are deemed to be liable as joint
tortfeasors, then the allocation of loss between NDPS
and/or GPI Canada, on the one hand, and the Bank, on
the other, shall be determined by the court.
(c) PROCEDURES. NDPS, GPI Canada and the Bank agree that
the procedure for making a claim under the indemnity
provisions of this Section 8.3 shall be governed by,
and conducted in accordance with, Section 20 of the
Marketing Alliance Agreement.
8.4 RECOVERY. If, at any time, either the Bank, on the
one hand, or NDPS and/or GPI Canada, on the other, has received damages from the
other and recovers funds, payments, or costs from a third party relating to the
liability in respect of which such damages were paid, the amounts so recovered
(less the costs of recovery and amounts previously paid to the other party in
respect of the Loss) shall be remitted to such other party up to the amounts
previously paid by such party.
8.5 REIMBURSEMENT FOR UNRECOVERED CHARGEBACKS AND CREDIT
LOSSES.
(a) The Bank shall reimburse NDPS within 60 days for the
amount of any unrecovered Chargebacks and Credit
Losses (calculated on an aggregate basis for the
entire portfolio of Merchants that are parties to
Existing Merchant Agreements, and not on a
Merchant-by-Merchant basis) that: (i) are incurred by
NDPS and/or GPI Canada in respect of Merchants that
are
-12-
parties to Existing Merchant Agreements; (ii) arise
out of sales transactions which occur between the
Effective Time and the date on which this Agreement
is terminated in accordance with Article 9 hereof;
and (iii) are in excess of twice the aggregate amount
of unrecovered Chargebacks and Credit Losses
(calculated on an aggregate basis for the entire
portfolio of Merchants that are parties to Existing
Merchant Agreements, and not on a
Merchant-by-Merchant basis) that the Bank incurred in
respect of sales transactions which occurred during
the period of time immediately preceding the
Effective Time that is equal in duration to the
period of time during which the Bank performed the
Transition Services under this Agreement;
(b) From time to time, NDPS and/or GPI Canada shall
deliver an invoice to the Bank for amounts payable by
the Bank to NDPS and/or GPI Canada under the terms
and conditions of paragraph (a). Payment of the
amounts specified on an invoice delivered in
accordance with this paragraph (b) shall be due on
the 60th day after the date of the invoice. NDPS
and/or GPI Canada reserve the right to charge
interest on all amounts not paid when due at the
Prime Rate or the maximum rate allowed by law, if
less;
(c) Upon request, NDPS and/or GPI Canada shall provide
reasonable supporting information for any invoice
submitted under this Section 8.5. The Bank shall have
the right to conduct a review of the books and
records of NDPS and GPI Canada relating solely to the
unrecovered Chargebacks and Credit Losses described
in paragraph (a) upon written notice to NDPS at a
mutually agreeable time and place. Upon receipt of a
review notice, NDPS and GPI Canada will make
available for the Bank's inspection (including
inspection by any agent, representative, or
professional advisor of the Bank) all relevant
records and books related to the unrecovered
Chargebacks and Credit Losses described in paragraph
(a). Any such review shall be at the expense of the
Bank, unless such review reveals that NDPS and/or GPI
Canada has overcharged the Bank, in which case, the
Bank shall be reimbursed for the costs and expenses
it incurred in connection with such review; and
(d) The Bank shall notify NDPS within 120 days of receipt
of an invoice delivered under this Section 8.5 of any
disputed amounts or the Bank, NDPS and GPI Canada
shall be deemed to have agreed with the invoice. In
the event of any dispute with respect to the matters
set forth in this Section 8.5, the parties agree that
such dispute shall be settled in accordance with the
dispute resolution mechanism set out in Section 22 of
the Marketing Alliance Agreement.
-13-
ARTICLE 9
TERM AND TERMINATION
9.1 TERM OF AGREEMENT. This Agreement shall remain in full force
and effect from the Closing Date to the earliest of: (a) the date that is the
second anniversary of the Closing Date; (b) the date on which this Agreement is
terminated in accordance with Sections 9.7 or 9.8; and (c) the date on which the
Bank is no longer obligated to perform any of the Transition Services under the
terms of this Agreement.
9.2 TERMINATION OF A TRANSITION SERVICE. The obligation of the
Bank to provide a particular Transition Service may be terminated by NDPS and/or
GPI Canada at the end of any calendar month prior to end of the Term for which
such Transition Service was to be provided, upon 120 days' prior written notice
(the "TERMINATION NOTICE") to the Bank. NDPS and GPI Canada agree that each of
the Transition Services shall be terminated in an orderly manner in accordance
with the Transition Plan. Notwithstanding that the Bank shall receive 120 days'
prior written notice of the intention of NDPS and GPI Canada to terminate the
Bank's obligation to provide a Transition Service, the Bank agrees that it shall
not provide its employees that are responsible for performing such Transition
Service with more than 60 days' prior written notice (the "EMPLOYEE NOTICE") of
NDPS's and GPI Canada's intention to terminate such Transition Service. Prior to
the delivery of the Employee Notice, NDPS and/or GPI Canada shall have the right
to cancel the Termination Notice, in which event the Bank shall continue to
provide the applicable Transition Service in accordance with the terms and
conditions of this Agreement. After the Employee Notice has been delivered, the
Bank is not obligated to: (a) extend the period during which it is obligated to
perform the Transition Service beyond the date specified in the Termination
Notice for termination of such Transition Service; or (b) resume performing such
Transition Service at a later date during the Transition Period.
9.3 BUSINESS RECOVERY PLAN. Notwithstanding anything to the
contrary in this Agreement, NDPS and GPI Canada shall not be entitled to
terminate the Bank's obligation to provide all or any part of the authorization
and draft capture services until such time as the operator of the platform has
in place a business recovery plan (the "BUSINESS RECOVERY PLAN") that is in
compliance with any conditions imposed by the Office of the Superintendent of
Financial Institutions ("OSFI") and is acceptable to the Bank, such acceptance
not to be unreasonably withheld. Despite the foregoing and subject to compliance
with any conditions imposed by OSFI, the Bank agrees that the Business Recovery
Plan of Intria-HP Corporation and Intria Items Inc. existing on the date hereof
is acceptable to the Bank.
9.4 BANK DEFAULT. The occurrence of any one of more of the
following events shall constitute a default by the Bank under the terms of this
Agreement (a "BANK DEFAULT"):
(1) If the Bank defaults in the performance of any of the
Transition Services in accordance with Section 2.3 for two
consecutive months under this Agreement and a corrective
action plan has not been developed during the 30-day period
after written notice and demand for cure has been given by
NDPS and/or GPI Canada to the Bank (except that such period
shall be extended to the extent there shall be in effect any
event which shall be deemed a Force Majeure Event); or
-14-
(2) The Bank is adjudged or declared bankrupt or insolvent or
makes an assignment for the benefit of its creditors, or
petitions or applies to any tribunal for the appointment of a
receiver, custodian, trustee, or similar officer for it or for
any part of its property, or commences any proceedings
relating to it under any reorganization, arrangement,
readjustment of debt, dissolution or liquidation Law or
statute of any jurisdiction whether now or hereafter in
effect, or by any act indicates its consent to, approval of,
or acquiescence in, any such proceeding for it or for any part
of its property, or a receiver, liquidator, assignee,
custodian, trustee or similar official is appointed for the
party, or any of the party's property.
9.5 NDPS/GPI CANADA DEFAULT. The occurrence of any one or more of
the following events shall constitute a default by NDPS or GPI Canada under the
terms of this Agreement (an "NDPS DEFAULT"):
(1) If NDPS or GPI Canada defaults in the payment of any amounts
due and owing to the Bank under this Agreement and such
default is not cured for sixty (60) days after written notice
and demand for cure has been given by the Bank to NDPS and GPI
Canada;
(2) If NDPS or GPI Canada is adjudged or declared bankrupt or
insolvent or makes an assignment for the benefit of its
creditors, or petitions or applies to any tribunal for the
appointment of a receiver, custodian, trustee, or similar
officer for it or for any part of its property, or commences
any proceedings relating to it under any reorganization,
arrangement, readjustment of debt, dissolution or liquidation
Law or statute of any jurisdiction whether now or hereafter in
effect, or by any act indicates its consent to, approval of,
or acquiescence in, any such proceeding for it or for any part
of its property, or a receiver, liquidator, assignee,
custodian, trustee or similar official is appointed for the
party, or any of the party's property.
9.6 NOTICE OF DEFAULT. Each party to this Agreement shall promptly
notify the other parties if a Default or Event of Default with respect to it has
occurred hereunder.
9.7 REMEDIES OF NDPS AND GPI CANADA. Upon the occurrence of a Bank
Default, after attempting to resolve the matter pursuant to the dispute
resolution provisions set out in the Marketing Alliance Agreement, NDPS and/or
GPI Canada may do any or all of the following as NDPS and/or GPI Canada, in
their sole and absolute discretion, shall determine:
(1) terminate this Agreement in accordance with the provisions
hereof;
(2) bring any proceedings in the nature of specific performance,
injunction, or other equitable remedy in any instance, it
being acknowledged that damages at Law may be an inadequate
remedy for a Bank Default under this Agreement;
(3) bring any action at Law as may be necessary or advisable in
order to recover damages and costs; and/or
-15-
(4) exercise any of its other rights and remedies provided for
hereunder or otherwise available to it, including a waiver of
any Bank Default.
9.8 REMEDIES OF THE BANK. Upon the occurrence of an NDPS Default,
after attempting to resolve the matter pursuant to the dispute resolution
provisions set out in the Marketing Alliance Agreement, the Bank may do any or
all of the following as the Bank, in its sole and absolute discretion, shall
determine:
(1) terminate this Agreement in accordance with the provisions
hereof;
(2) bring any proceedings in the nature of specific performance,
injunction, or other equitable remedy in any instance, it
being acknowledged that damages at Law may be an inadequate
remedy for an NDPS Default under this Agreement;
(3) bring any action at Law as may be necessary or advisable in
order to recover damages and costs; and/or
(4) exercise any of its other rights and remedies provided for
hereunder or otherwise available to it, including a waiver of
any NDPS Default.
9.9 NON-EXCLUSIVE REMEDIES. The non-defaulting party may, in its
sole discretion, exercise any right or recourse and/or proceed by any action,
suit, remedy or proceeding against the defaulting party authorized hereunder or
permitted by Law and may proceed to exercise any and all rights hereunder and no
remedy for the enforcement of the rights of the non-defaulting party shall be
exclusive of any other rights or remedies provided hereunder or at Law or in
equity or be dependent upon any such right or remedy and any one or more of such
rights or remedies may from time to time be exercised independently or in
combination. All such rights shall be subject to the limitation of liability
contained herein.
9.10 EQUITABLE REMEDIES. The defaulting party agrees that the
non-defaulting party's entitlement to seek equitable relief includes such
injunction or injunctions as may be required to prevent breaches or further
breaches of any of the provisions hereof, and specific enforcement of such
provisions by an action instituted in any court having jurisdiction.
9.11 ASSIGNMENT OF THREE PARTY AGREEMENTS. As contemplated in and
pursuant to the Asset Purchase Agreement, upon termination of the Bank's
obligation to perform a Transition Service, the Bank agrees to assign to NDPS or
GPI Canada or such Affiliate of NDPS or GPI Canada as NDPS or GPI Canada shall
designate (the "NDPS DESIGNATE") and NDPS and GPI Canada agree to accept, or
cause their NDPS Designate to accept, from the Bank all right, title and
interest of the Bank in and to any Three Party Agreements set forth in SCHEDULE
9.10 that enabled the Bank to perform to such Transition Service and NDPS and
GPI Canada agree to assume, or cause their NDPS Designate to assume, any and all
of the Bank's obligations under such Three Party Agreements. The parties hereto
acknowledge that such Three Party Agreements are agreements that are to be
assigned to NDPS under the terms of the Asset Purchase Agreement and that the
Bank needed to retain the right to receive some or all of the rights or services
provided thereunder solely for purposes of providing the Transition Services to
NDPS and/or GPI Canada. Upon termination of the Bank's obligation to perform a
Transition
-16-
Service in accordance with Section 9.2, the Bank shall no longer require the
rights or services provided under any Three Party Agreements applicable to such
Transition Service and as contemplated, and in return for the consideration
provided, under the Asset Purchase Agreement the assignment of such Three Party
Agreements shall be effective.
9.12 CONSEQUENCES OF FAILURE TO IMPLEMENT TRANSITION PLAN. In the
event that NDPS, GPI Canada or a third party service provider has not assumed
responsibility for the performance of all of the Transition Services by the end
of the Transition Period, the Bank shall have the option to continue performing
the Transition Services in return for compensation equivalent to the market
rates charged by independent service providers for substantially similar
services, such option to be exercised in the sole and absolute discretion of the
Bank and subject to any regulatory approvals required and all applicable laws.
ARTICLE 10
SOFTWARE RIGHTS ON TERMINATION
10.1 SOFTWARE. The parties agree that if, during the term of this
Agreement, it is determined that NDPS, GPI Canada or any of their Affiliates
shall need access to certain software to conduct the Merchant Business (the
"SOFTWARE") following the Transition Period, and such Software is:
(a) owned by the Bank or an Affiliate of the Bank and
will be used by the Bank following the Transition
Period, at NDPS' or GPI Canada's option, the Bank
shall, or shall cause its Affiliate to, enter into,
on commercially reasonable terms, a non-exclusive,
non-assignable, royalty-free, fully paid-up licence
with NDPS, GPI Canada or their NDPS Designate in
respect of any such Software;
(b) owned by the Bank or an Affiliate of the Bank and
will not be used by the Bank following the Transition
Period, at NDPS' or GPI Canada's option, the Bank
shall, or shall cause its Affiliate to, transfer such
software to NDPS, GPI Canada or their NDPS Designate;
(c) licensed by the Bank or an Affiliate of the Bank and
will be used by the Bank following the Transition
Period, at NDPS' or GPI Canada's option, the Bank
shall, or shall cause its Affiliate to, use
Commercially Reasonable Efforts to: (i) negotiate an
arrangement with NDPS, GPI Canada or their NDPS
Designate and the licensor of such Software whereby
both NDPS, GPI Canada or their NDPS Designate, and
the Bank, or its Affiliate, as applicable, could
continue using such Software under the same licence;
or (ii) obtain a separate licence for NDPS, GPI
Canada or their NDPS Designate; or
(d) licensed by the Bank or an Affiliate of the Bank and
will not be used by the Bank following the Transition
Period, at NDPS' or GPI Canada's option, the Bank
shall, or shall cause its Affiliate to use
Commercially
-17-
Reasonable Efforts to, assign its licence to NDPS,
GPI Canada, or their NDPS Designate.
Notwithstanding anything to the contrary, any additional licenses resulting from
the foregoing are considered, as between the Bank, NDPS and GPI Canada, to be a
part of, a result of, and in return for, the consideration provided under the
Asset Purchase Agreement
ARTICLE 11
GENERAL
11.1 PERIPHERON THERMAL PRINTERS The Bank shall reimburse NDPS for
the cost incurred by NDPS and/or GPI Canada for shipping the RM2000 Thermal
Printers manufactured by PeriPheron Technologies Ltd. ("PERIPHERON") to
PeriPheron's facilities at #148-1538 Cliveden Avenue, Delta, British Columbia in
connection with the "TCO Upgrade Project" (as described in the letters from
PeriPheron to CIBC dated January 22, 2001 and February 19, 2001 included in the
Assets Sold) to be implemented by PeriPheron, NDPS and/or GPI Canada after the
Closing Date, provided that the maximum amount payable by the Bank for such
shipping costs shall be $100,000. NDPS and GPI Canada shall use Commercially
Reasonable Efforts to cause the TCO Upgrade Project to be completed as soon as
practicable and, if possible, within a eighteen (18) month period.
11.2 DISPUTE RESOLUTION. NDPS, GPI Canada and the Bank acknowledge
and agree that any and all disputes that arise from, or relate in any way to,
the Transition Services, the Transition Plan, or any other matter set forth in
this Agreement, shall be settled in accordance with the dispute resolution
provisions set out in the Marketing Alliance Agreement.
11.3 CONTRACTS AND INVOICING. Upon request, the Bank shall provide
reasonable supporting information for any invoice submitted hereunder. NDPS
and/or GPI Canada shall have the right to conduct a review of the books and
records of the Bank relating solely to the Transition Services to be provided
hereunder upon written notice to the Bank at a mutually agreeable time and
place. Upon receipt of a review notice, the Bank will make available for NDPS'
or GPI Canada's inspection (including inspection by any agent, representative,
or professional advisor of NDPS or GPI Canada) all relevant records and books
related solely to the Transition Services provided hereunder. Any such review
shall be at the expense of NDPS and/or GPI Canada, unless such review reveals
that the Bank has overcharged NDPS or GPI Canada, in which case, NDPS and/or GPI
Canada shall be reimbursed for the costs and expenses they incurred in
connection with such review.
11.4 INDEPENDENT CONTRACTOR. Each party to this Agreement intends
that the Bank shall operate as, and be considered, an independent contractor in
providing the Transition Services. All personnel performing Transition Services
for or on behalf of the Bank shall be agents or employees of the Bank, and shall
not for any purpose be considered agents or employees of NDPS or GPI Canada and
shall not be entitled to any benefit or payment directly from NDPS or GPI Canada
on account of such Transition Service. Nothing contained in this Agreement shall
be construed as constituting a partnership or joint venture between NDPS, GPI
-18-
Canada and the Bank and each party hereto specifically disclaims any liability
for the conduct, performance of services or failure to act of the other parties
hereto. None of the parties to this Agreement shall represent or hold itself out
as a partner, joint venturer, or agent of another party hereto for any purpose
whatsoever and nor shall any party to this Agreement have the right to bind
another party hereto to any agreement with a third party or to incur any
obligation or liability on behalf of another party.
11.5 ENTIRE AGREEMENT; AMENDMENT. This Agreement including the
Schedules hereto, contains the entire agreement among the parties to this
Agreement pertaining to the matters contemplated in this Agreement and there are
no further or other agreements or understandings, written or oral, in effect
between the parties relating to the subject matter of this Agreement, except as
may be specifically provided in one of the Operative Documents. No amendment,
modification or alteration of the terms or provisions of this Agreement shall be
binding unless the same shall be in writing and duly executed by the authorized
representatives of each of the parties hereto.
11.6 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. In such an event, the parties shall use good faith efforts to
re-negotiate any such provision in an effort to retain the spirit and intent of
the original provision.
11.7 FURTHER ASSURANCES. The parties hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as the other parties to this Agreement may reasonably request in order
to carry out the intent and accomplish the purposes of this Agreement.
11.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall enure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement and all rights, privileges,
duties and obligations of the parties hereto may not be assigned by any party
without the prior written consent of the other parties; provided, however, that
no such consent shall be required (i) for the assignment by any party of its
rights and privileges hereunder to an Affiliate of a party, or (ii) for the
assignment by any party of its rights, privileges, duties and obligations
hereunder to any Person into or with which the assigning party shall merge or
consolidate or to which the assigning party shall sell all or substantially all
of its assets. The consent of a party to an assignment by the other parties
shall not (i) relieve that party of any of its obligations under this Agreement;
or (ii) constitute the other parties' consent to further assignment.
11.9 MODIFICATION AND WAIVER. No failure by the Bank, GPI Canada or
NDPS to exercise, and no delay in exercising any right under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right under this Agreement preclude any other or further exercise thereof or
the exercise of any other right. No waiver of any provision of
-19-
this Agreement, and no consent to any departure by the Bank, GPI Canada or
NDPS herefrom, shall be effective unless the same shall be in writing and signed
by each party to this Agreement sought to be bound thereby, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which it was given.
11.10 NOTICES. Any notice, request, instruction or other document to
be given hereunder by any party to this Agreement to any other party hereto
shall be in writing and delivered to the following names and addresses:
if to the Bank, to:
Canadian Imperial Bank of Commerce
c/o CIBC World Markets Inc.
161 Bay Street
BCE Place, 7th Floor
Toronto, Ontario M5J 2J8
Attention: Executive Vice President,
Card Products, Collections and Merchant Card
Services
Facsimile No.: (416) 784-6868
with a copy to:
Canadian Imperial Bank of Commerce
Legal and Compliance Division
199 Bay Street, 15th Floor
Commerce Court West
Toronto, Ontario M5L 1A2
Attention: General Counsel
Facsimile No.: (416) 304-2860
and to:
Blake, Cassels & Graydon LLP
199 Bay Street, 28th Floor
Commerce Court West
Toronto, Ontario M5L 1A9
Attention: Managing Partner
Facsimile No: (416) 863-2653
If to NDPS, Global Payments or GPI Canada, to:
Global Payments Inc.
Four Corporate Square
-20-
Atlanta, Georgia 30329-2010
Attention: Office of the Corporate Secretary
The persons or addresses to which mailings or deliveries shall be made may be
changed from time to time by notice given pursuant to the provisions of this
Section 11.10. Any notice, demand or other communication given pursuant to the
provisions of this Section 11.10 shall be deemed to have been duly given on the
date actually delivered or five days following the date deposited in the mail,
properly addressed, postage prepaid, as the case may be.
11.11 GOVERNING LAW; INTERPRETATION.
(1) This Agreement shall be governed by, and construed in
accordance with, the laws of the Province of Ontario and the
laws of Canada applicable therein without giving effect to the
principles of conflicts of law thereof.
(2) Each party hereto represents that, in the negotiation and
drafting of this Agreement, such party has been represented by
and relied upon the advice of counsel of such party's choice.
Each such party affirms that such party's counsel has had a
substantial role in the drafting and negotiation of this
Agreement. Therefore, each such party agrees that the rule of
construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in
the interpretation of this Agreement or any related document.
11.12 CONSENT TO JURISDICTION. Except as otherwise specifically
provided in this Agreement:
(1) Each of the parties hereto hereby submits to the exclusive
jurisdiction of the courts of the Province of Ontario and the
federal courts of Canada, in the case of any action, suit or
proceeding commenced with respect to a dispute by any of them
or any Affiliate or shareholder of any of them. Waiving the
right to any other jurisdiction by reason of their present or
future domicile.
(2) The parties hereto agree that, after any dispute is before a
court as specified in paragraph (1) of this Section 11.12 and
during the pendency of such dispute before such court, all
actions, suits or proceedings with respect to such dispute or
any other dispute, including without limitation, any
counterclaim, cross-claim or interpleader, shall be subject to
the exclusive jurisdiction of such court.
(3) Each of the parties hereto hereby waives, and agrees not to
assert, as a defense in any action, suit or proceeding
referred to in paragraph (1) or (2) of this Section 11.12,
that it is not subject thereto or that such action, suit or
proceeding may not be brought or is no maintainable in such
court (for lack of personal jurisdiction or otherwise) or that
its property is exempt or immune from execution, that the
action, suit or proceeding is brought in an inconvenient forum
or that the venue of the action, suit or proceeding is
improper. Each of the parties hereto agrees that service of
process in any such action, suit or proceeding shall be deemed
in every
-21-
respect effective service of process upon it if personally
served upon the applicable party at the address for notice
purposes designated pursuant to Section 11.10.
11.13 THIRD-PARTY BENEFICIARIES. None of the parties to this
Agreement intends this Agreement to benefit or create any right or cause of
action in or on behalf of any Person other than the Bank, GPI Canada and NDPS
and permitted successors and assigns.
11.14 TIME OF ESSENCE. Time shall be of the essence in this
Agreement in all respects.
11.15 COUNTERPARTS. This Agreement may be executed by the parties
hereto in any number of counterparts, each of which, when executed, shall be
deemed to be an original and all of which together shall constitute one and the
same document.
-22-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered on the day and year first above
written.
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Christine Croucher
--------------------------------------
Name: Christine Croucher
Title:
By: /s/ David A. Caldwell
--------------------------------------
Name: David A. Caldwell
Title:
National Data Payment Systems, Inc. hereby executes this Agreement as a party
hereto and hereby guarantees the obligations of Global Payments Canada Inc.
hereunder.
NATIONAL DATA PAYMENT SYSTEMS, INC.
By: /s/ Suellyn P. Tornay
--------------------------------------
Name: Suellyn P. Tornay
Title: General Counsel
GLOBAL PAYMENTS CANADA INC.
By: /s/ Suellyn P. Tornay
--------------------------------------
Name: Suellyn P. Tornay
Title: General Counsel
-23-
The obligations of National Data Payment Systems, Inc. and/or Global Payments
Canada Inc. hereunder are hereby guaranteed by GLOBAL PAYMENTS INC.
GLOBAL PAYMENTS INC.
By: /s/ Paul R. Garcia
-------------------------------------
Name: Paul R. Garcia
Title: Chief Executive Officer
SCHEDULE 2.1
TRANSITION SERVICES
TRANSITION SERVICE
1. Merchant Loss Prevention
2. Dispatch Services
3. Help Desk Services
4. Merchant Debit Operations
5. Management Information Systems
6. Point of Sale System Support
7. Project Installation
8. Merchant Training
9. Operations Administration
10. MOPD
11. PERC
12. Voice Authorization Services
13. Chargebacks/Retrievals
14. Settlement Accounting
15. INTENTIONALLY DELETED
16. INTENTIONALLY DELETED
17. Support for AS400
18. Such services ("INTRIA TRANSITION SERVICES") as are provided to the Bank
immediately prior to Closing by Intria-HP Corporation and Intria Items Inc. in
connection with the Merchant Business.
SCHEDULE 2.2
SERVICE LEVELS
See attached.
* ALL PERFORMANCE STANDARDS SHALL BE MEASURED ON A MONTHLY AVERAGE.
- ---------------------------------------------------------------------------------------------------------------------
FUNCTIONAL RESPONSIBILITY FUNCTION PEACH RESPONSIBILITY
AREA
- ---------------------------------------------------------------------------------------------------------------------
PARTY PERFORMANCE GOAL COMMENTS/ PARTY
CONDITIONS
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
Settlement NDPS Demand Deposit N/A CIBC
Account Set-Up
- ---------------------------------------------------------------------------------------------------------------------
Settlement NDPS Deposit Account CIBC
Rejects
- ---------------------------------------------------------------------------------------------------------------------
Settlement NDPS Merchant Deposits a) Post on-us transactions CIBC
next day 95% of time
- ---------------------------------------------------------------------------------------------------------------------
Settlement NDPS Merchant Deposits b) Present foregoing DDA CIBC
deposits to CPA for
clearing on day of receipt
95% of time
- ---------------------------------------------------------------------------------------------------------------------
Settlement NDPS Returned Items (NSF) N/A CIBC
- ---------------------------------------------------------------------------------------------------------------------
Settlement NDPS Settlement Account N/A CIBC
Statement Copies
- ---------------------------------------------------------------------------------------------------------------------
Settlement NDPS Unposted deposit N/A CIBC
transactions
- ---------------------------------------------------------------------------------------------------------------------
Settlement NDPS DDA Debits N/A CIBC
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Account Processing New applications including Requires complete CIBC
credit review completed and correct
within 3 business days of application
receipt on average packages
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Chargebacks NDPS will resolve 96% of CIBC
chargebacks within time
limits determined by card
associations
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Chargebacks Fax server items indexed CIBC
within 48 hours
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Chargebacks CB's resolved within 35 days CIBC
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Chargebacks Rebuttals resolved within CIBC
10 days
* ALL PERFORMANCE STANDARDS SHALL BE MEASURED ON A MONTHLY AVERAGE.
- --------------------------------------------------------------------------
FUNCTIONAL MCS
AREA
- --------------------------------------------------------------------------
PERFORMANCE GOAL COMMENTS/CONDITIONS
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
Settlement Merchant deals directly with CIBC branch CIBC to set-up
within 48 hours 90% of time
- --------------------------------------------------------------------------
Settlement VISA centre to notify MCS or NDPS within 2 business days
95% of time
- --------------------------------------------------------------------------
Settlement a) Post on-us transactions next day 95% of time
- --------------------------------------------------------------------------
Settlement b) Present foregoing DDA All merchant deposits to
deposits to CPA for clearing on CIBC DDA's same day /
day of receipt 95% of time Push Funds to other FI's
next day.
- --------------------------------------------------------------------------
Settlement VISA centre to notify MCS or NDPS within 2 business days
95% of time
- --------------------------------------------------------------------------
Settlement CIBC Branch function with 95% of rejects sent to MCS or
NDPS within 5 business days
- --------------------------------------------------------------------------
Settlement VISA centre to notify MCS or NDPS within 2 business days
95% of time
- --------------------------------------------------------------------------
Settlement Support documentation will be Proof and verification
sent to merchant by 3rd required on Letter
business day of debit to DDA Adjustments
account to be performed by CIBC
- --------------------------------------------------------------------------
Operations New applications including Requires complete and
credit review completed within correct application
3 business days of receipt on packages
average
- --------------------------------------------------------------------------
Operations CIBC will resolve 96% of chargebacks within time limits
determined by card associations
- --------------------------------------------------------------------------
Operations Fax server items indexed within 48 hours
- --------------------------------------------------------------------------
Operations CB's resolved within 35 days
- --------------------------------------------------------------------------
Operations Rebuttals resolved within 10 days
-2-
* ALL PERFORMANCE STANDARDS SHALL BE MEASURED ON A MONTHLY AVERAGE.
- ---------------------------------------------------------------------------------------------------------------------
FUNCTIONAL RESPONSIBILITY FUNCTION PEACH RESPONSIBILITY
AREA
- ---------------------------------------------------------------------------------------------------------------------
PARTY PERFORMANCE GOAL COMMENTS/ PARTY
CONDITIONS
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Chargebacks 95% Escalated calls CIBC
returned within 48 hours
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Contact Centres Telephone Service Factor CIBC
(Technical / (TSF) 80%
Customer service)**
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Contact Centres Average Speed of Answer CIBC
(Technical / (ASA) 25 seconds
Customer service)**
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Contact Centres Abandonment Rate - 5% CIBC
(Technical /
Customer service)**
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Contact Centres Telephone Blockage - less CIBC
(Technical/Customer than 1%
service)**
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Decline Letters Will be mailed to designee CIBC
at Bank within 3 business
days of credit decision.
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Direct Payment 95% Double Debits corrected CIBC
within 48 hours
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS Direct Payment 95% 'Reversals posted CIBC
within 48 hours
- ---------------------------------------------------------------------------------------------------------------------
Operations NDSP & GPI 90% of merchants to be Assumes
Canada setup on Masterfile and availability of
kits mailed within 7 POS hardware from
business days of credit vendors
decision
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS and GPI Merchant Statement Mailed within 8 business CIBC
Canada days after month-end
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS and GPI Merchant Supplies 95% sent within 1 business CIBC
Canada day of receipt of request
- ---------------------------------------------------------------------------------------------------------------------
Operations NDPS and GPI Merchant Training New merchants contacted CIBC
Canada within 48 hours for
scheduled training after
kit mailed.
* ALL PERFORMANCE STANDARDS SHALL BE MEASURED ON A MONTHLY AVERAGE.
- ------------------------------------------------------------------------------
FUNCTIONAL MCS
AREA
- ------------------------------------------------------------------------------
PERFORMANCE GOAL COMMENTS/CONDITIONS
- ------------------------------------------------------------------------------
Operations 95% Escalated calls returned This is for All Departments
within 48 hours
- ------------------------------------------------------------------------------
Operations Telephone Service Factor (TSF) This is the current CIBC
80% target (Rolling 12 month
actual to be provided)
- ------------------------------------------------------------------------------
Operations Average Speed of Answer (ASA) This is the current CIBC
25 seconds target (Rolling 12 month
actual to be provided)
- ------------------------------------------------------------------------------
Operations Abandonment Rate - 5% This is the current CIBC
target (Rolling 12 month
actual to be provided)
- ------------------------------------------------------------------------------
Operations Telephone Blockage - less than This is the current CIBC
1% target (rolling 12 month
actual to be provided)
- ------------------------------------------------------------------------------
Operations Will be mailed to designee at Bank Branch or MCS
Representative within 3 business days of credit decision.
- ------------------------------------------------------------------------------
Operations 95% Double Debits corrected within 48 hours
- ------------------------------------------------------------------------------
Operations 95% 'Reversals posted within 48 hours
- ------------------------------------------------------------------------------
Operations 90% of merchants to be set up Assumes availability of
on Masterfile and kits mailed POS hardware from vendors
within 4 business days of
credit decision
- ------------------------------------------------------------------------------
Operations Mailed 4th business day after Schedule can be provided.
month end.
- ------------------------------------------------------------------------------
Operations 95% sent within 1 business day of receipt of request
- ------------------------------------------------------------------------------
Operations New merchants contacted within 48 hours for scheduled
training after kit mailed.
- ------------------------------------------------------------------------------
-3-
* ALL PERFORMANCE STANDARDS SHALL BE MEASURED ON A MONTHLY AVERAGE.
- ---------------------------------------------------------------------------------------------------------------------
FUNCTIONAL RESPONSIBILITY FUNCTION PEACH RESPONSIBILITY
AREA
- --------------------------------------------------------------------------------------------------------------------
PARTY PERFORMANCE GOAL COMMENTS/ PARTY
CONDITIONS
- --------------------------------------------------------------------------------------------------------------------
Operations GPI Canada Replacement POS Various response levels (Is CIBC
Terminals this the same as "EQUIPMENT
REPLACEMENT".
- --------------------------------------------------------------------------------------------------------------------
Operations NDPS Research Initial response, but not CIBC
necessarily resolution,
completed 95% within 7
business days or per agreed
upon completion date
- --------------------------------------------------------------------------------------------------------------------
Operations NDPS Retrieval Processing a) Copy requests will be CIBC
mailed to merchants within
5 days of receipt
- --------------------------------------------------------------------------------------------------------------------
Operations NDPS Retrieval Processing b) Retrievals fulfilled by CIBC
merchants will be forwarded
to card issuers within 3
business days of receipt
- --------------------------------------------------------------------------------------------------------------------
Operations NDPS Voice Telephone Service Factor CIBC
Authorizations** (TSF) 80%
- --------------------------------------------------------------------------------------------------------------------
Operations NDPS Voice Average Speed of Answer CIBC
Authorizations** (ASA) 18 seconds
- --------------------------------------------------------------------------------------------------------------------
Operations NDPS Voice Abandonment Rate - 4.5% CIBC
Authorizations**
- --------------------------------------------------------------------------------------------------------------------
Sales NDPS Referrals Attempt to contact merchant CIBC
will be within 48 hours of
NDPS notification
- --------------------------------------------------------------------------------------------------------------------
* ALL PERFORMANCE STANDARDS SHALL BE MEASURED ON A MONTHLY AVERAGE.
- ------------------------------------------------------------------------------
FUNCTIONAL MCS
AREA
- ------------------------------------------------------------------------------
PERFORMANCE GOAL COMMENTS/CONDITIONS
- ------------------------------------------------------------------------------
Operations Various response levels (Is Various zones are
this the same as "EQUIPMENT available dependent on
REPLACEMENT". location and relationship.
- ------------------------------------------------------------------------------
Operations Initial response, but not necessarily resolution,
completed 95% within 7 business days or per agreed upon
completion date
- ------------------------------------------------------------------------------
Operations a) Copy requests will be mailed to merchants within 5
days of receipt
- ------------------------------------------------------------------------------
Operations b) Retrievals fulfilled by merchants will be forwarded to
card issuers within 3 business days of receipt
- ------------------------------------------------------------------------------
Operations Telephone Service Factor (TSF) This is the current CIBC
80% target. The dept. is
working towards 90 / 10.
(Rolling 12 month actual
to be provided)
- ------------------------------------------------------------------------------
Operations Average Speed of Answer (ASA) This is the current CIBC
20 seconds target. The dept. is
working towards 90 / 10.
(Rolling 12 month actual
to be provided)
- ------------------------------------------------------------------------------
Operations Abandonment Rate - 5% This is the current CIBC
target. The dept. is
working towards 90 / 10.
(Rolling 12 month actual
to be provided)
- ------------------------------------------------------------------------------
Sales Attempt to contact merchant will be within 48 hours of
CIBC or MCA notification
- ------------------------------------------------------------------------------
-4-
* ALL PERFORMANCE STANDARDS SHALL BE MEASURED ON A MONTHLY AVERAGE.
- ---------------------------------------------------------------------------------------------------------------------
FUNCTIONAL RESPONSIBILITY FUNCTION PEACH RESPONSIBILITY
AREA
- ---------------------------------------------------------------------------------------------------------------------
PARTY PERFORMANCE GOAL COMMENTS/ PARTY
CONDITIONS
- ---------------------------------------------------------------------------------------------------------------------
Technology/ NDPS EDC 100% availability on the Excludes funding CIBC
Intria 2nd business day delays caused by
third parties.
- ---------------------------------------------------------------------------------------------------------------------
Technology/ NDPS Network Services Circuits with dial back 92.50% CIBC
Intria capabilities should be
restored within 5 minutes
- ---------------------------------------------------------------------------------------------------------------------
Technology/ NDPS Network Services Circuits without dial back 92.50% CIBC
Intria up should be restored
within four hours
- ---------------------------------------------------------------------------------------------------------------------
Technology/ NDPS Network Services Dial 950 92.50% CIBC
Intria
- ---------------------------------------------------------------------------------------------------------------------
Technology/ NDPS Network Services Lease (private) 99.20% CIBC
Intria
- ---------------------------------------------------------------------------------------------------------------------
Settlement NDPS Account Processing N/A Excludes funding CIBC
delays caused by
third parties.
- ---------------------------------------------------------------------------------------------------------------------
Technology / NDPS Tandem / Unisys / 98.8% availability (this Excludes downtime CIBC
Intria Stratus includes scheduled at card
maintenance associations
- ---------------------------------------------------------------------------------------------------------------------
Various departments at NDPS Reports For standard monthly CIBC
reports, NDPS will provide
to Bank within ten (15)
days of the date such
reports are issued by
NDPS. With respect to
non-standard reports which
NDPS has agreed to provide,
then NDPS will provide such
report on the mutually
agreed upon date
- ---------------------------------------------------------------------------------------------------------------------
Various departments at NDPS Research Completed research 90% of CIBC
time within 7 days; 99.8%
within 20 days
- ---------------------------------------------------------------------------------------------------------------------
* ALL PERFORMANCE STANDARDS SHALL BE MEASURED ON A MONTHLY AVERAGE.
- ------------------------------------------------------------------------------
FUNCTIONAL MCS
AREA
- ------------------------------------------------------------------------------
PERFORMANCE GOAL COMMENTS/CONDITIONS
- ------------------------------------------------------------------------------
Technology/ Same day value Funds are deposited next
Intria day and back dated to
same day value
- -------------------------------------------------------------------------------
Technology/ Local hunt groups are
Intria forwarded to 800 service
- -------------------------------------------------------------------------------
Technology/ Not Applicable
Intria
- -------------------------------------------------------------------------------
Technology/ Not Applicable
Intria
- -------------------------------------------------------------------------------
Technology/ 25.00%
Intria
- -------------------------------------------------------------------------------
Settlement 100% availability day of Bank Funds are available upon
receipt deposit.
- -------------------------------------------------------------------------------
Technology / 98.8% availability (this Excludes downtime of card
Intria includes scheduled maintenance associations.
- -------------------------------------------------------------------------------
Various For standard monthly reports, THIS SHOULD BE CONFIRMED
departments at CIBC will provide to NDPS AS OTHER DEPARTMENTS MAY
NDPS within 15 days of the date such BE INCLUDED (FINANCE ETC.)
reports are issued by CIBC.
With respect to non-standard
reports which CIBC has agreed
to provide, then CIBC will
provide such report on the
mutually agreed upon date
- -------------------------------------------------------------------------------
Various Completed research 90% of time within 7 days; 99.8% within
departments at 20 days
NDPS
- -------------------------------------------------------------------------------
-5-
* ALL PERFORMANCE STANDARDS SHALL BE MEASURED ON A MONTHLY AVERAGE.
- --------------------------------------------------------------------------------------------------------------------
FUNCTIONAL RESPONSIBILITY FUNCTION PEACH RESPONSIBILITY
AREA
- --------------------------------------------------------------------------------------------------------------------
PARTY PERFORMANCE GOAL COMMENTS/ PARTY
CONDITIONS
- --------------------------------------------------------------------------------------------------------------------
Various departments at NDPS Standard Monthly Twelve days from date of CIBC
Reports issue by NDPS
- --------------------------------------------------------------------------------------------------------------------
DEPOSIT & SETTLEMENT PROCESS Note: Should the CIBC
platform or billing
systems change then
the process will
need to be adjusted
accordingly to
enhance these time
requirements are met.
- --------------------------------------------------------------------------------------------------------------------
NDPS Credit NDPS shall accept Credit (Day 1) Before CIBC
Card Transactions from 12am local / 11pm
Merchants in electronic B.C.
form and shall transmit to
the bank summary
information of the amounts
to be posted to merchant
depository accounts.
- --------------------------------------------------------------------------------------------------------------------
NDPS Credit CIBC
- --------------------------------------------------------------------------------------------------------------------
NDPS Debit NDPS shall accept Debit (Day 1) Before CIBC
Card Transactions from 12am local / 11pm
Merchants in electronic B.C.
form and shall transmit to
the bank summary
information of the amounts
to be posted to merchant
depository accounts.
- --------------------------------------------------------------------------------------------------------------------
NDPS Debit CIBC
- --------------------------------------------------------------------------------------------------------------------
* ALL PERFORMANCE STANDARDS SHALL BE MEASURED ON A MONTHLY AVERAGE.
- -------------------------------------------------------------------------------------------------
FUNCTIONAL MCS
AREA
- -------------------------------------------------------------------------------------------------
PERFORMANCE GOAL COMMENTS/CONDITIONS
- -------------------------------------------------------------------------------------------------
Various departments at NDPS Twelve days from date of issue THIS SHOULD BE CONFIRMED
by CIBC AS OTHER DEPARTMENTS MAY
BE INCLUDED (FINANCE ETC.)
- -------------------------------------------------------------------------------------------------
DEPOSIT & SETTLEMENT PROCESS THIS IS A HIGH LEVEL ACCOUNT OF THE DEPOSIT & SETTLEMENT
TIMELINES. THERE IS CONSIDERABLY MORE DETAIL INVOLVED IN
THE ACTUAL PROCESS TO ACHIEVE THESE TIMELINES.
- -------------------------------------------------------------------------------------------------
NDPS The Bank agrees to credit the (Day 2) Deposited by 7am
Merchant Depository Accounts following business day
maintained with it.
- -------------------------------------------------------------------------------------------------
NDPS Upon receipt of information the (Day 3) VISA Base 2
bank shall originate and settlement 23:30 Monday -
transmit to the applicable Friday (business day)
Association Clearing System
- -------------------------------------------------------------------------------------------------
NDPS The Bank agrees to credit the (Day 2) Deposited by 7am
Merchant Depository Accounts following business day
maintained with it.
- -------------------------------------------------------------------------------------------------
-6-
* ALL PERFORMANCE STANDARDS SHALL BE MEASURED ON A MONTHLY AVERAGE.
- --------------------------------------------------------------------------------------------------------------------
FUNCTIONAL RESPONSIBILITY FUNCTION PEACH RESPONSIBILITY
AREA
- --------------------------------------------------------------------------------------------------------------------
PARTY PERFORMANCE GOAL COMMENTS/ PARTY
CONDITIONS
- --------------------------------------------------------------------------------------------------------------------
NDPS Debit CIBC
- --------------------------------------------------------------------------------------------------------------------
Merchant's EDGE NDPS shall accept Credit (Day 1) Before CIBC
Card Transactions from 12am local/
Merchants in electronic 11 pm B.C.
form and shall transmit to
the bank summary
information of the amounts
to be posted to merchant
depository accounts.
- --------------------------------------------------------------------------------------------------------------------
Merchant's EDGE CIBC
- --------------------------------------------------------------------------------------------------------------------
* ALL PERFORMANCE STANDARDS SHALL BE MEASURED ON A MONTHLY AVERAGE.
- -----------------------------------------------------------------------------------------------------
FUNCTIONAL MCS
AREA
- -----------------------------------------------------------------------------------------------------
PERFORMANCE GOAL COMMENTS/CONDITIONS
- -----------------------------------------------------------------------------------------------------
Upon receipt of information (Day 2) Association cut-
the bank shall originate and off for transactions - 9:30
transmit to the applicable pm Eastern Monday - Friday
Association Clearing System Association settlement -
12:00am (via ACSS)
Monday - Friday
- -----------------------------------------------------------------------------------------------------
The Bank agrees to credit the (Day 2) Deposited by
Merchant Depository Accounts 7am following business
maintained with it. day.
- -----------------------------------------------------------------------------------------------------
Upon receipt of information the (Day 2) Files are
bank shall originate and forwarded by 10:00am
to the appropriate EDGE
partner for settlement.
- -----------------------------------------------------------------------------------------------------
OTHER ITEMS:
1) CIBC STAFFS ALL CALL CENTRES TO MEET CANADIAN LANGUAGE REQUIREMENTS - ENGLISH
/ FRENCH & CANTONESE (CANTONESE LESS CRITICAL). OPERATIONS CALL CENTRE AND VOICE
AUTHORIZATIONS TARGETS ARE ESTABLISHED AS PUBLISHED ABOVE FOR BOTH FRENCH AND
ENGLISH.
2) BUSINESS RECOVERY
3) NATIONAL COVERAGE OF CIBC BRANCH NETWORK OR SERVICE AREA
SCHEDULE 3.1
FEES
The parties agree that the Transition Services shall be
calculated and paid for on a service-by-service basis, in accordance with the
terms and conditions of this Schedule. In addition, certain other charges and
expenses payable by NDPS shall be calculated and paid in accordance with this
Schedule. The parties acknowledge that the provisions of Article 3 of the
Transition Agreement shall apply to all amounts payable by NDPS pursuant to this
Schedule and that the rights of NDPS under section 11.3 of the Transition
Agreement extend to the calculation of all such amounts. Notwithstanding
anything to the contrary, the parties acknowledge and agree that, other than in
respect of the Intria Transition Services, the Bank shall not pass through any
depreciation charges to NDPS.
1, 2 MERCHANT LOSS PREVENTION, DISPATCH, DEBIT OPERATIONS,
AND MANAGEMENT INFORMATION SYSTEMS, POS SYSTEM SUPPORT, PROJECT
4-10 INSTALLATION, MERCHANT TRAINING, OPERATIONS ADMINISTRATION AND
MOPD SERVICES.
(a) For each month that the Bank provides Merchant Loss
Prevention services, Dispatch services, Debit
Operations services, Management Information Systems
services, POS System Support services, Project
Installation services, Merchant Training services,
Operations Administration services or MOPD services
(collectively, the "TRANSITION SUPPORT SERVICES" and
individually, a "TRANSITION SUPPORT SERVICE") to
NDPS, the Bank shall calculate the actual expenses
incurred and subtract such amount from the "cap" for
such month, If:
(i) the difference is positive,
(1) the amount payable by NDPS shall be
the actual expenses for such month,
and
(2) the cap for the immediately
following month shall be increased
by the amount of the difference;
(ii) if the difference is zero, the amount
payable by NDPS shall be actual expenses for
such month; and
(iii) if the difference is negative, the amount
payable by NDPS shall, subject to paragraph
(c), be the cap for such month and the
absolute amount of the difference shall be
added to the actual expenses incurred in the
immediately following month.
(b) For purposes of this section,
(i) references to the "cap" for any month shall
be to the aggregate of the caps for such
month for each Transition Support Service
that the Bank provided to NDPS during such
month as specified in Schedules 3.1(1),
3.1(2), 3.1(4), 3.1(5), 3.1(6), 3.1(7),
3.1(8), 3.1(9) and 3.1(10), as the same may
be adjusted in accordance with this section,
and
(ii) references to the actual expenses incurred
in a month shall be to the actual expenses
incurred by the Bank in providing the
Transition Support Services in such month
determined and charged in accordance with
past practice of the Bank, as the same may
be adjusted in accordance with this section.
(c) Despite clause (a)(iii), any of the following third
party costs shall be paid by NDPS and/or GPI Canada:
(i) computer costs resulting from agreements
with third parties in existence immediately
prior to the commencement of the Transition
Period (other than additional costs that,
but for the entering into of the Marketing
Alliance Agreement and the Transition
Agreement, would not have been incurred) and
any computer costs arising under any other
agreements the execution of which has been
approved by NDPS and/or GPI Canada;
(ii) telephone charges that are incurred directly
by the Bank in the performance of the
Transition Support Services; and
(iii) "outside services" resulting from agreements
with third parties in existence immediately
prior to the commencement of the Transition
Period (other than additional costs that,
but for the entering into of the Marketing
Alliance Agreement and the Transition
Agreement, would not have been incurred) and
from any other agreements the execution of
which has been approved by NDPS and/or GPI
Canada.
(d) Upon termination of the provision of the last
remaining Transition Support Service at the end of
any month, the amount payable for such month shall be
calculated in the same manner as for any other month
and no further adjustment or payment shall be made or
payable for the amount, if any, by which the actual
expenses for such month exceed the cap for such
month.
(e) Within 60 days of the end of each fiscal year of the
Bank, the total amount payable under paragraph (a) in
such year shall be adjusted to reflect any year-end
changes to the general expense allocations charged to
the Transition Support Services and paid by NDPS in
such year, such
adjustment to also incorporate appropriate changes to
reflect the termination of any Transition Support
Services in such year.
3. HELP DESK. In each month, NDPS shall pay an amount for Help
Desk services calculated as follows:
Amount payable = $50,345 x THTx2 + C
-------
7.5 x B
where
THT = AHT x total number calls answered in the
---- month
3600
B = the number of days in the month
AHT = the average "handle time" (duration) of a call
in the month, calculated in accordance with past
practice of the Bank.
C = The aggregate of the following expenses
incurred by the Bank in providing the Help Desk
Services:
(i) computer costs resulting from agreements
with third parties in existence immediately
prior to the commencement of the Transition
Period (other than additional costs that,
but for the entering into of the Marketing
Alliance Agreement and the Transition
Agreement, would not have been incurred) and
any computer costs arising under any other
agreements the execution of which has been
approved by NDPS and/or GPI Canada;
(ii) telephone charges that are incurred directly
by the Bank in the performance of the Help
Desk Services; and
(iii) "outside services" resulting from agreements
with third parties in existence immediately
prior to the commencement of the Transition
Period (other than additional costs that,
but for the entering into of the Marketing
Alliance Agreement and the Transition
Agreement, would not have been incurred) and
from any other agreements the execution of
which has been approved by NDPS and/or GPI
Canada.
11. PERC.
(a) In each month, NDPS shall pay an amount for "PERC"
services provided to NDPS equal to the cost to the
Bank of the full-time employees of the Bank dedicated
to the provision of such services.
(b) The Bank shall use Commercially Reasonable Efforts to
ensure the PERC services provided are commensurate
with the requirements of the Merchant Business. In
the event the Bank believes it is necessary to
increase the number of employees dedicated to PERC
services as a result of any request by an employee of
NDPS for services and that such increase will in turn
result in higher PERC Service costs to NDPS, the Bank
shall so notify the Client Representative of NDPS and
shall not increase the number of employees dedicated
to PERC services or have any obligation to provide
the requested services until such time as the Client
Representative of NDPS, or his or her designate, has
provided the Bank with written instructions to do so.
(c) The Bank agrees to follow Directions relating to the
number of PERC employees that are dedicated to
developing products that are not in existence as of
the date hereof or described in the annual plan of
the Merchant Business, and increase or decrease the
number of such employees accordingly.
(d) NDPS (including its agents, representatives, or
professional advisors) shall have the right to
conduct a review on a monthly basis of the books and
records of the Bank relating to the PERC expense
allocation. In the event that NDPS believes that the
PERC expense allocation is inaccurate, CIBC shall
have an obligation to substantiate the PERC expense
allocation for the relevant month(s).
12. VOICE AUTHORIZATION. In each month, NDPS shall pay an amount
for Voice Authorization services calculated as follows:
Amount payable = $44,600 x THTx2
-------
7.5 x B
where
THT = AHT x total number calls answered in
---- the month
3600
B = the number of days in the month
AHT = the average "handle time" (duration) of a call
in the month, calculated in accordance with past
practices of the Bank
13. CHARGEBACK AND RETRIEVALS. In each month NDPS shall pay an
amount for Chargeback and Retrieval services provided to NDPS
equal to the cost to the Bank of the full-time employees of
the Bank dedicated to the provision of such services, provided
that for purposes of this section, NDPS agrees that it has
issued
a Direction to the Bank within the meaning of section 2.4 of
the Transition Agreement that the number of employees may not
exceed 28 without the prior approval of NDPS.
14. SETTLEMENT ACCOUNTING. In each month NDPS shall pay an amount
for Settlement Accounting services provided to NDPS equal to
the cost to the Bank of the full-time employees of the Bank
dedicated to the provision of such services, provided that for
purposes of this section, NDPS agrees that it has issued a
Direction to the Bank within the meaning of section 2.4 of the
Transition Agreement that the number of employees may not
exceed four without the prior approval of NDPS.
15. DC RENT
(a) In each month NDPS shall pay an amount to compensate
the Bank for the occupancy costs for the space used
by the Transition Employees at 750 Lawrence Avenue
not to exceed the monthly costs allocated to the
Merchant Card Services division for such space in the
fiscal year ended October 31, 2000.
(b) If a Transition Service is terminated in accordance
with the terms of the Transition Agreement, the
amount payable under paragraph (a) shall be reduced
in the same proportion that the number of full-time
Transition Employees employed in providing the
terminated service in the immediately preceding month
is of the total number of full-time Transition
Employees in such month.
16. DIRECT OVERHEAD.
(a) Subject to paragraph (b), the Bank shall deliver an
invoice to NDPS for the amounts payable by NDPS to
the Bank in each month as compensation for Direct
Overhead Charges incurred in providing the Transition
Services equal to 1/12 of the annual amount set forth
in paragraph (b)(i);
(b) Within 60 days of the end of each fiscal year of the
Bank, the total amount payable under paragraph (a) in
such year shall be determined and adjusted to reflect
any adjustments to the amounts allocated to the
Transition Services and paid by NDPS in such year,
provided that:
(i) in no event shall the total amount payable
by NDPS for Direct Overhead charges exceed
$2.2 million on an annualized basis, and
(ii) appropriate adjustments shall be made to
reflect the termination of any Transition
Services in such year, such adjustments to
be effected in a manner consistent with the
past practice of the Bank.
17. SUPPORT FOR AS400.
(a) Subject to paragraph (b), the Bank shall deliver an
invoice to NDPS for the amounts payable by NDPS to
the Bank in each month as compensation for AS400
Support services equal to 1/12 of the annual amount
set forth in paragraph (b);
(b) The total amount payable by NDPS for AS400 Support
services under paragraph (a) shall not exceed
$165,000 in each 12-month period; provided that if
this service is terminated prior to the end of a
complete 12-month period, the $165,000 cap shall be
adjusted downward in the same proportion that the
period such service is provided is of 12 months, and
the parties shall make any required adjustments
within two months of the date of termination.
18. INTRIA SERVICES.
The costs incurred and the amounts allocated in respect of the
following Intria Transition Services shall be calculated in accordance
with past practice of the Bank:
(a) Systems Processing Variable Charges. In each month,
NDPS shall pay an amount to compensate the Bank for
the variable systems processing charges incurred in
providing the Intria Transition Services equal to the
costs actually incurred by the Bank.
(b) Flat Charges
(i) Subject to clause (ii), in each month NDPS
shall pay an amount for the "flat charges"
incurred by the Bank in providing the Intria
Transition Services (including charges for
circuits, land boards and routers) equal to
the amounts charged to the Bank by Intria.
(ii) The monthly amount payable under clause (i)
shall not exceed $37,855 unless the costs
resulting in such excess have been approved
in advance by NDPS.
(c) Tandem
(i) Subject to clause (ii), in each month, NDPS
shall pay an amount for the Tandem-related
costs incurred by the Bank in providing the
Intria Transition Services equal to the sum
of the variable third party costs for the
support of, and services associated with,
the Tandem computers, including, but not
limited to, hardware maintenance, software
support and utilities, that are incurred by
the Bank in such month plus the costs
associated with hardware usage that are
incurred by the Bank in such month.
(ii) In the event that the Tandem-related costs
incurred by the Bank exceed $11.7 million on
an annualized basis, the Bank shall provide
NDPS with supporting evidence that such
excess is as a result of an increase in the
variable third party costs.
(d) Letter Shop. In each month, NDPS shall pay an amount
for Letter Shop services equal to the costs incurred
by the Bank in providing such services.
(e) Sales Drafts. In each month, NDPS shall pay an amount
for Sales Draft services equal to the costs incurred
by the Bank in providing such services.
(f) Host Testing & Other. In each month, NDPS shall pay
an amount for Host Testing & Other services equal to
the costs incurred by the Bank in providing such
services.
(g) Direct Overhead
(i) Subject to clause (ii), the Bank shall
deliver an invoice to NDPS for the amounts
payable by NDPS to the Bank in each month as
compensation for Direct Overhead Charges
incurred in providing the Intria Transition
Services equal to 1/12 of the annual amount
set forth in paragraph (g)(ii)(1);
(ii) Within 60 days of the end of each fiscal
year of the Bank, the total amount payable
under clause (i) in such year shall be
determined and adjusted to reflect any
adjustments to the amounts allocated to the
Transition Services and paid by NDPS in such
year, provided that
(1) in no event shall the total amount
payable by NDPS for Direct Overhead
charges exceed $1.2 million on an
annualized basis, and
(2) appropriate adjustments shall be
made to reflect the termination of
any Transition Services in such
year, such adjustments to be
effected in a manner consistent with
the past practice of the Bank.
SCHEDULE 4.1
CLIENT RELATIONS REPRESENTATIVES
Client Relations Representative of the Bank: Donna Price
Client Relations Representative of NDPS and GPI Canada: Jim Kelly
SCHEDULE 9.11
NEW THREE PARTY AGREEMENTS
1. Agreement between First Data Merchant Services, Canadian Imperial Bank
of Commerce and the Purchaser regarding the processing of certain key
accounts.
2. Agreement between Discover Financial Services, Inc., Canadian Imperial
Bank of Commerce and the Purchaser in respect of terminal sharing
services provided to mutual clients of Discover Financial Services,
Inc., Canadian Imperial Bank of Commerce and the Purchaser.
3. Agreement between JCB International Co., Ltd., Canadian Imperial Bank
of Commerce and the Purchaser in respect of terminal sharing,
authorization and draft capture services provided to mutual clients of
JCB International Co., Ltd., Canadian Imperial Bank of Commerce and the
Purchaser.
4. Agreement between Eigen Development Limited, Canadian Imperial Bank of
Commerce and the Purchaser regarding the provision of customized
merchant processing solutions to certain Merchants.
5. Agreement between Canadian Imperial Bank of Commerce, Nobil IT Canada
Corp. and the Purchaser regarding the provision of payment gateway and
data processing services to Merchants.
6. Agreement between BCE Emergis Inc., Canadian Imperial Bank of Commerce
and the Purchaser regarding the provision of processing services for
certain credit cards, non-bank cards and other transactions to
Merchants.
7. Agreement between NCR Canada Ltd., Canadian Imperial Bank of Commerce
and the Purchaser regarding the provision of credit authorization,
draft capture and other processing services to certain Merchants.
8. Agreement between First Tennessee Bank National Association, Canadian
Imperial Bank of Commerce and the Purchaser regarding the provision of
customized merchant processing solutions to certain Merchants.
9. Agreement between Global Payment Systems Inc., National Data
Corporation, Canadian Imperial Bank of Commerce and the Purchaser
regarding the provision of customized merchant processing solutions to
certain Merchants.
10. All oral agreements with secondary acquirors to exchange information
and to accept and switch the following cards or services for selected
Merchants:
- --------------------------------------------------------------------------------
CARD NAME/SERVICES NAME PAN BIN
- --------------------------------------------------------------------------------
Province of Nova Scotia 10 001100
- --------------------------------------------------------------------------------
New Brunswick Power 10 001390
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CARD NAME/SERVICES NAME PAN BIN
- --------------------------------------------------------------------------------
Quebec Government 10 001400
- --------------------------------------------------------------------------------
Ontario Government 10 001500
- --------------------------------------------------------------------------------
Natural Resources 10 001504
- --------------------------------------------------------------------------------
Soquip 10 005400
- --------------------------------------------------------------------------------
Husky Oil 14 200000
- --------------------------------------------------------------------------------
Husky Oil 14 210710
- --------------------------------------------------------------------------------
Husky Oil 14 271760
- --------------------------------------------------------------------------------
Husky Oil 14 280370
- --------------------------------------------------------------------------------
Husky Oil 14 294340
- --------------------------------------------------------------------------------
Nova Scotia Government 10 300749
- --------------------------------------------------------------------------------
Canadian National 16 308138
- --------------------------------------------------------------------------------
Carte Capitale (Fleet Card) 16 600502
- --------------------------------------------------------------------------------
Corp Rate (Fleet Card) 16 600504
- --------------------------------------------------------------------------------
Hamilton Discount (Sunys Fuels) 18 600525110
- --------------------------------------------------------------------------------
Hamilton Discount (Wilson Fuels) 18 600525135
- --------------------------------------------------------------------------------
Province of Nova Scotia 16 600749
- --------------------------------------------------------------------------------
Triton Construction 16 600801
- --------------------------------------------------------------------------------
Alberta Government 16 600837
- --------------------------------------------------------------------------------
Saskatchewan Power 16 600934
- --------------------------------------------------------------------------------
Quebec Government 16 600938
- --------------------------------------------------------------------------------
Ontario Hydro 16 600946
- --------------------------------------------------------------------------------
Ontario Government (Issued by ARI) 16 601021
- --------------------------------------------------------------------------------
BC Hydro 16 601051
- --------------------------------------------------------------------------------
Manitoba Fleet 16 601310
- --------------------------------------------------------------------------------
Manitoba Hydro 16 601491
- --------------------------------------------------------------------------------
ARI RCMP (Issued by ARI) 16 601548
- --------------------------------------------------------------------------------
CAA 17 601655
- --------------------------------------------------------------------------------
Government of the Yukon 16 603183
- --------------------------------------------------------------------------------
Federal Government (Issued by ARI) 16 608000
- --------------------------------------------------------------------------------
CAA 16 620272
- --------------------------------------------------------------------------------
CAA 16 620273
- --------------------------------------------------------------------------------
CAA 16 620275
- --------------------------------------------------------------------------------
CAA 16 620277
- --------------------------------------------------------------------------------
CAA 16 620279
- --------------------------------------------------------------------------------
CAA 16 620282
- --------------------------------------------------------------------------------
CAA 16 620285
- --------------------------------------------------------------------------------
CAA 16 620286
- --------------------------------------------------------------------------------
CAA 16 620287
- --------------------------------------------------------------------------------
CAA 16 620288
- --------------------------------------------------------------------------------
CAA 16 620299
- --------------------------------------------------------------------------------
Province of New Brunswick 16 636017
- --------------------------------------------------------------------------------
GE Capital 16 690000
- --------------------------------------------------------------------------------
Ultracar (Ultramar) 16 701880
- --------------------------------------------------------------------------------
Ultramar Commercial 16 70716733
- --------------------------------------------------------------------------------
Mohawk (Husky Oil) 14 707610
- --------------------------------------------------------------------------------
BML (Associate Fleet Card) 16 707859
- --------------------------------------------------------------------------------
GE Capital 16 707876
- --------------------------------------------------------------------------------
Triathalon 16 707901
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CARD NAME/SERVICES NAME PAN BIN
- --------------------------------------------------------------------------------
Transportation 16 708008
- --------------------------------------------------------------------------------
Ultracar 16 708010
- --------------------------------------------------------------------------------
ARI (Fleet Company) 16 708020
- --------------------------------------------------------------------------------
Nova 16 708030
- --------------------------------------------------------------------------------
Canadian Fracmaster 16 708035
- --------------------------------------------------------------------------------
Cgear 16 708145
- --------------------------------------------------------------------------------
Haliburton Energy Services 16 708149
- --------------------------------------------------------------------------------
Flint Canada 16 708150
- --------------------------------------------------------------------------------
Beta Well Service 16 708180
- --------------------------------------------------------------------------------
CVA 16 708196
- --------------------------------------------------------------------------------
Schlumberger of Canada 16 708201
- --------------------------------------------------------------------------------
Akita Drilling Ltd. 16 708202
- --------------------------------------------------------------------------------
Opsco '92 16 708208
- --------------------------------------------------------------------------------
Cactus Drilling 16 708209
- --------------------------------------------------------------------------------
Superior Propane 14 708213
- --------------------------------------------------------------------------------
UPI 16 708219
- --------------------------------------------------------------------------------
McGinnis Rathole Drilling Co. 16 708232
- --------------------------------------------------------------------------------
Highland/Conrad 16 708244
- --------------------------------------------------------------------------------
Smith International 16 708255
- --------------------------------------------------------------------------------
Premium Oil 16 708295
- --------------------------------------------------------------------------------
Essor 17 708359
- --------------------------------------------------------------------------------
AT&T 16 708545
- --------------------------------------------------------------------------------
Foss Fleet 16 709200
- --------------------------------------------------------------------------------
Province of British Columbia 16 721357
- --------------------------------------------------------------------------------
Peterson Howell & Heather 16 744003
- --------------------------------------------------------------------------------
Telebec 16 891007
- --------------------------------------------------------------------------------
BC Tel Advantage 16 891228
- --------------------------------------------------------------------------------
Telus 16 891258
- --------------------------------------------------------------------------------
Bell Canada-Quebec 16 891369
- --------------------------------------------------------------------------------
Manitoba Telephone System 16 891687
- --------------------------------------------------------------------------------
Sask Tel 16 891727
- --------------------------------------------------------------------------------
Bell Canada-Ontario 16 891789
- --------------------------------------------------------------------------------
Northwest Telephone 16 891930
- --------------------------------------------------------------------------------
Diners Club
- --------------------------------------------------------------------------------
Danier Leather
- --------------------------------------------------------------------------------
Discover Card
- --------------------------------------------------------------------------------
Hamilton Discount
- --------------------------------------------------------------------------------
JCB
- --------------------------------------------------------------------------------
Rona
- --------------------------------------------------------------------------------
Sears
- --------------------------------------------------------------------------------
Sir Gas
- --------------------------------------------------------------------------------
Sunnys
- --------------------------------------------------------------------------------
Zellers
- --------------------------------------------------------------------------------
Tele-Cheque
- --------------------------------------------------------------------------------
Tele-credit
- --------------------------------------------------------------------------------
Veri-cheque
- --------------------------------------------------------------------------------
NPC
- --------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CARD NAME/SERVICES NAME PAN BIN
- -------------------------------------------------------------------------------
SECONDARY ACQUIRORS
- -------------------------------------------------------------------------------
Bank of Montreal (MasterCard)
- -------------------------------------------------------------------------------
National Bank (MasterCard)
- -------------------------------------------------------------------------------
Canada Trust (MasterCard) -portfolio
acquired by First Data
- -------------------------------------------------------------------------------
Alberta Treasury Branches (MasterCard)
- -------------------------------------------------------------------------------
Credit Union Electronic Transaction Services
- -------------------------------------------------------------------------------
American Express
- -------------------------------------------------------------------------------
FTD
- -------------------------------------------------------------------------------
SNS (now known as BCE Emergis)
- -------------------------------------------------------------------------------
Global Payment Systems
- -------------------------------------------------------------------------------
NCR
- -------------------------------------------------------------------------------
Nabanco (now First Data)
- -------------------------------------------------------------------------------