Exhibit 10.6
CARD PRODUCTION SERVICE AGREEMENT
EFT Source, Inc. of Nashville, Tennessee (Company) and Merchant Processing
International, Inc., 18500 Von Karman Suite 530, Irvine, CA 92612 (client)
hereby enter into this Agreement in which EFT Source will provide certain
services for said Client in return for compensation as outlined herein and with
attachments.
1. PRODUCTION PROGRAMMING:As directed by Client, EFT Source will computer
program a card production process for a fee of $295.00 per card type. This fee
includes the computer programming actions necessary to produce a valid card
program on the EFT Source production system. EFT Source will submit card
production specifications to the CLIENT for review and will not complete the
card production services until it receives written approval from CLIENT. The
EFT Source client service representative is responsible for coordinating the
implementation of the client's card program, which will include the production
of client's test cards. CLIENT recognizes and understands testing and approval
of CLIENT's card program is the CLIENT's responsibility. CLIENT also
understands that production delays may occur without CLIENT's written test
approval of the card program.
2. PRODUCTION SERVICES AND PRICES: The EFT Source client service representative
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will review with the CLIENT all services which will be performed by EFT Source.
Attachment A defines all prices for services available to CLIENT. Attachment A
will be reviewed on a quarterly basis to review quantities and pricing.
3. EFT SOURCE PERFORMANCE OBLIGATIONS
3.1 ACCEPTANCE OF CONFORMING CARD ORDERS: CLIENT acknowledges that each and
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every card production order must pass EFT Source computer automated card
production edits which are the exact production specifications tested and
approved by CLIENT. CLIENT acknowledges card orders, which fail production
edits, may result in delays in production fulfillment. Conforming card orders
for new and replacement card issues will be received via electronic file
transmission or by other mediums (e.g., diskette, tape) as mutually agreed by
the parties involved in the card production process.
3.2 TWO BUSINESS DAY FULFILLMENT: EFT Source will fulfill conforming card
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production orders (including card processing and mailing) within 48 hours or two
business days from the date it receives such orders prior to 12:00 PM Central
Time on the ordering date. Notwithstanding the foregoing, "48 hour" and "two
business day" service will not be provided on EFT Source holidays or weekends;
and "48 hour" and "two business day" service does not apply to renewal issues,
which will be sent separate from new and replacement issues. Finally, "48 hour"
and "two business day" service does not apply in instances of CLIENT submitting
non-conforming card processing orders. CLIENT will be notified in the most
expedient manner of a non-conforming transmission, and once the problem is
rectified, EFT Source will then fulfill its "two business day" obligation as
written above.
3.3 CONFIDENTIAL INFORMATION:EFT Source will consider as confidential and will
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not disclose to third parties confidential information, data or plans of CLIENT
or its affiliates that is disclosed to EFT Source in the performance of the
Agreement and identified by CLIENT as confidential, unless the information so
classified is already known to EFT Source or its agents, employees or
representatives,
or to others not bound by a duty of confidentiality; such information becomes
publicly available through no fault of EFT Source; or the use of such
information is necessary in connection with legal proceedings. EFT Source will
take reasonable action to prevent its agents, employees, or representatives from
disclosing Confidential Information.
4. PAYMENT TERMS
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4.1 MONTHLY INVOICES: Payments are due from CLIENT net 30 days from the date of
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the invoice. Payments not received within 30 days of the due date of invoice
are subject to a late fee of 3% (three percent) of the net invoice amount.
Payments not received within 45 days of the date of invoice are subject to
interest of 1.5% (one and one half percent) per month for each month (or partial
month) that the payment is not received (provided, however, that in no event
shall the interest rate exceed the maximum rate allowed by applicable law.)
Acceptance by EFT Source of partial payment of the total amount due does not
relieve CLIENT of its obligation to pay any remaining amounts due, including
without limitation late fees or interest (billed or unbilled).
4.2 OPTIONAL PROVISION OF KEY COPIES: For an additional fee, EFT Source will
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provide CLIENT with copies of the Card Verification Value ("CVV") and Card
Verification Code ("CVC") keys (each pair of such keys, a "Key Copy"). If
CLIENT initials the Automatic Key Copy Option on Attachment A, EFT Source will
automatically provide CLIENT with a Key Copy each time it first uses a new key
to encode cards for CLIENT. In exchange for this service, CLIENT will pay EFT
Source $300.00 per Key Copy upon receipt of EFT Source's invoice. If CLIENT
fails to initial the Automatic Key Copy Option on Attachment A or if CLIENT
requests EFT Source to provide additional Key Copies, EFT Source will provide
Key Copies to CLIENT at a price of $2,500.00 per Key Copy or EFT Source's then
prevailing rate, whichever is higher.
5. EFT REGULATIONS DISCLOSURE: Federal and State laws regarding electronic
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funds transfer may affect various aspects of the CLIENT'S intended program and
should be carefully reviewed by the CLIENT'S legal counsel. EFT Source is not
responsible (and will not be held accountable) for non-compliance with the
Federal EFT Act, Regulation E, or other Federal or State laws or regulations.
6. REMEDIES
6.1 REMEDIES AVAILABLE TO EITHER PARTY The following remedies shall be
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available to either party:
(a) Either party may terminate this Agreement, upon written notice to the
other party, if such other party breaches this Agreement and fails to cure such
breach within twenty (20) days of being notified thereof in writing.
(b) Either party may immediately terminate this Agreement without notice (or
at the earliest time permitted by applicable law) if (i) any involuntary
proceeding in bankruptcy or under any similar law is filed against the other
party (the "Bankrupt Party") or its property which is not dismissed within 60
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days after filing; (ii) any voluntary proceeding in bankruptcy or under any
similar law is filed by the Bankrupt Party; (iii) The Bankrupt Party is
dissolved or liquidated: (v) a receiver or trustee is appointed by the Bankrupt
Party or its property; (v) The Bankrupt Party makes an assignment for the
benefit of creditors; (vi) or the Bankrupt Party becomes insolvent or is
generally unable to pay its debts as they become due.
6.2 REMEDIES AVAILABLE TO EFT SOURCE The following remedies shall be available
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to EFT Source:
(a) Failure by CLIENT to pay in full all amounts due in owing, when due and
owing, shall be a default hereunder, and EFT Source shall have all the rights of
a contracting party under the laws of the State of Tennessee in the event of
such a default plus attorney fees and costs incurred in connection with the
enforcement of such rights.
(b) EFT Source shall be fully indemnified by CLIENT in respect of all liability
arising out of or in connection with laws governing or related to electronic
funds transfers, as set forth in Section 5 hereof.
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6.3 REMEDIES AVAILABLE TO CLIENT The following remedies shall be available to
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CLIENT:
(a) Faulty Production: If parties mutually determine that a card sent to
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CLIENT'S customer has been improperly produced, EFT Source shall replace such
card at no cost to CLIENT.
(b) Failure To Fulfill Two-Day Card Service If EFT Source fails to comply
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with the obligation described herein to provide the two-day card processing
service, pursuant to the terms and conditions of and subject to the limitations
of Section 3, CLIENT may be provided a per card credit to its monthly invoice.
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(using the monthly "per card fee" schedule in Appendix A hereof ).
(c) Disclosure of Confidential Information In the event that EFT Source
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breaches its duty to CLIENT, as described in Section 3 hereof, to maintain the
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confidentiality of the Confidential Information, CLIENT may seek injunctive
relief and respect to such a breach.
(d) LIMITATION OF DAMAGES Notwithstanding any other provision herein, EFT
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Source's liability to CLIENT is limited to an amount not greater than the amount
paid by CLIENT pursuant to this Agreement.
6.4 NO SPECIAL OR CONSEQUENTIAL DAMAGE In no event shall either party be liable
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to the other party for special or consequential damages hereunder or in
connection herewith.
6.5 DISPUTE RESOLUTION The parties may, by mutual consent, at any time seek to
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resolve any and all disputes by the use of mediation and/or binding or
non-binding arbitration. Unless the parties agree otherwise in writing, neither
party waives its right to seek the remedies otherwise available to it hereunder
by pursuing alternative dispute resolution such as mediation or arbitration.
7. TERM/TERMINATION OF AGREEMENT: The term of this Agreement is three years
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from the date of this Agreement. Thereafter the parties, upon mutual written
agreement, may renew this Agreement for additional one-year periods. Client or
Company may terminate this agreement prematurely by providing ninety (90) days
written notice of intent to terminate.
8. DISCLAIMER OF WARRANTY: EFT SOURCE WARRANTS ONLY THAT THE SERVICES PERFORMED
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UNDER THIS AGREEMENT WILL BE PERFORMED IN ACCORDANCE WITH THE CRITERIA STATED IN
SECTIONS 1 AND 3 HEREOF. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM A
COURSE OF DEALING OR USAGE OF TRADE, ACCURACY OF INFORMATION OR TITLE.
9. RELATIONSHIP OF THE PARTIES: No employment, partnership, or agency
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relationship or joint venture is created by reason of this Agreement. Neither
party is authorized to bind the other to any agreement or contract with any
third party.
10. RECOGNITION BY PARTIES OF ADEQUACY OF TERMS OF AGREEMENT: The parties agree
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that their negotiations have led each of them to an understanding of the
business needs and requirements of the other party in connection with the
services to be provided under this Agreement. Each of the parties acknowledges
that the terms of this Agreement adequately define and provide for its business
needs and requirements in connection with the services to be provided hereunder.
11. ASSIGNMENT; AGREEMENT FOR BENEFIT OF PARTIES ONLY: This Agreement will be
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binding upon and will inure to the benefit of the parties hereto and their
successors and permitted assigns. Notwithstanding the above, neither party may
assign this Agreement without the prior written consent of the other party. This
Agreement and all of its provisions and conditions are for the sole and
exclusive benefit of the parties to this Agreement and their successors and
permitted assigns.
12. COMPLETE AGREEMENT; AMENDMENT; WAIVER: Each of the parties acknowledges
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that it has reviewed this Agreement and understands its terms and conditions.
This Agreement represents the complete understanding of the parties with respect
to the matters set forth herein and supersedes any and all previous
representations, statements, or promises, whether verbal or in writing. The
parties specifically affirm the limitations in respect of warranties and
remedies set forth herein and agree that no other warranties or promises have
been made except the express warranties made herein. This Agreement may not be
modified, altered, amended, or changed except by mutual agreement in writing. No
failure by either party to insist upon strict performance of any term of this
Agreement will act as a waiver of such party's right to insist upon strict
performance of such term at a later time or to insist upon strict performance of
any other term of this Agreement.
13. GOVERNING LAW; JURISDICTION; VENUE : This Agreement shall be governed by
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and construed in accordance with the substantive laws of the State of
StateTennessee as if it were negotiated, executed and performed entirely within
the State of StateplaceTennessee. In the event of any dispute involving this
Agreement, the parties hereto consent to the exclusive jurisdiction of the
courts in the State of Tennessee located in Nashville, Davidson County,
Tennessee, or, if it has or can acquire jurisdiction, in the United States
District Court for the Middle District of Tennessee, and each of the parties
waives any objection to venue laid therein. The provisions of this Section
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13shall survive any termination of this Agreement.
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14. COUNTERPARTS: This Agreement may be executed in any number of counterparts
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(by facsimile transmission or otherwise), and each shall be deemed an original
but all such counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written below.
MERCHANT PROCESSING INTERNATIONAL, INC. EFT SOURCE, INC.
Name: Name:
Signature: Signature:
Title: Title:
Date: Date:
REVIEWED BY:
Initials Date
EFT Source Production Manager: ______ _______
EFT Source Client Service Representative: ______ _______
EFT Source Accounting Manager: ______ _______
ATTACHMENT A
EFT SOURCE, INC.
CARD PERSONALIZATION SERVICE PRICES FOR MERCHANT PROCESSING INTERNATIONAL, INC.
[Confidential Price Information]
ATTACHMENT B
EFT SOURCE PORTAL ACCESS
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BACKGROUND
A. EFT Source and Client are parties to that certain Card Production Service
Agreement (the "Card Production Service Agreement") pursuant to which EFT
Source is providing Client with certain card production services.
B. Effective January 1st 2003, EFT Source will maintain a secure,
Internet-based service located at the URL [Confidential] (including
any upgraded versions, successors or replacements, "Internet Site") to
facilitate the Client's review of its account relating to such card production
services, including without limitation, Client's tracking of card production
orders.
Now, Therefore, in consideration of the terms and conditions set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ACCESS TO AND USE OF INTERNET SITE. CLIENT'S ACCESS TO AND USE OF THE
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INTERNET SITE IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
(a) EFT Source may, at any time and in its sole discretion, modify,
revise or otherwise change the Internet Site (including without limitation
adding or discontinuing any or all services or transactions offered through the
Internet Site), in whole or in part, without notice or liability to Client. All
of the provisions of the Card and Service Production Agreement are incorporated
herein.
(b) Subject to the terms and conditions of this Agreement, Client is
granted a limited, revocable, nonexclusive and nontransferable license, without
the right to sublicense, to access and use the Internet Site only for (i)
displaying the Internet Site on Client's Internet browser so Client can access
and review its account information; and (ii) printing or copying portions of the
Internet Site relating to Client's account information. Client's access and use
of the Internet Site is further limited to internal purposes only and Client
shall not, directly or indirectly allow any third party other than an authorized
user to access or use the Internet Site or use the Internet Site in the
operation of a service bureau, application service provider or similar business.
(c) Except as permitted in the limited license set forth in paragraph
(a), above, Client shall not copy, reproduce, distribute, display, perform,
sell, lease, transmit or create derivative works from the Internet Site (in
whole or in part) or translate, modify, reverse-engineer, disassemble, or
decompile the Internet Site.
(d) Client may not upload to, or distribute or otherwise publish
through the Internet Site any content, information, or other material that (i)
violates or infringes the rights of any persons, including without limitation,
rights in copyrights, patents, trademarks, service marks, trade secrets, and
other
proprietary rights; (ii) is libelous, threatening, defamatory, obscene,
indecent, pornographic, or could give rise to any civil or criminal liability
under U.S. or international law; or (iii) includes any bugs, viruses, worms,
trap doors, Trojan horses or other harmful code or properties.
(e) EFT Source shall not be liable to Client for any interruptions
or failures relating to Client's access to and/or use of the Internet Site
relating to any circumstances that are beyond EFT Source's control, including
without limitation, war, insurrection, sabotage, terrorist acts, embargo, fire,
flood, strike or other labor disturbance, governmental acts, interruption of or
delay in transportation, unavailability of or interruption or delay in
telecommunications or third party services, failure of third party software or
inability to obtain power used in or equipment needed for provision of Internet
services.
(f) Although EFT Source has taken reasonable steps to prevent the
unauthorized access to its computer systems by third parties, Client
acknowledges that use of the Internet and related resources involves potential
computer security risks and Client agrees that EFT Source cannot and does not
guarantee against the risk that its computer systems will be free from
unauthorized access. Client further agrees that EFT Source shall not be liable
to Client for any unauthorized access to and/or misuse of EFT Source's computer
systems, or for Client's inability to access or use the Internet Site due to any
reason beyond EFT Source's control.
(g) All information and data that is part of the Internet Site,
including without limitation, text, graphics, photos, illustrations, images,
video and audio clips (collectively, "Content") and all trademarks, service
marks, trade dress, logos and tag lines displayed on this Site (collectively,
the "Marks") are the sole and exclusive property of EFT Source or their
respective owners. Client is not granted any right or license, either express or
implied, in any Marks, patents, trade secrets, rights of publicity or other
intellectual or proprietary rights of EFT Source or any of the goodwill
associated with any of the foregoing. Client shall not remove any copyright,
trademark, or other proprietary legends or notices that appear on, in or as part
of the Internet Site.
(h) Client may be assigned a password and ID to access and use the
Internet Site. If Client requires more than one password and ID, Client shall
appoint a password coordinator to administer the distribution of passwords and
IDs to individual users. Each individual user who uses any of such passwords and
IDs shall be deemed to be authorized to access and use the Internet Site and EFT
Source shall not have any obligation to investigate the authorization or source
of any such access or use. Client is solely responsible for protecting the
security and confidentiality of all password(s) and ID(s). Client acknowledges
and agrees that it will be solely responsible for all access and use of the
Internet site by individual users and any other third party who uses the
password(s) and ID(s) whether or not such access and use is actually authorized
by client, including without limitation, all financial obligations that may
result from such access or use.
(i) All content, services and transactions offered as part of the
Internet site are provided on an "as-is" and "as available" basis. The Internet
site may include inaccuracies, mistakes or typographical errors. EFT Source
does not warrant that the content will be uninterrupted or error free. EFT
Source disclaims any and all representations and warranties, express or implied,
including without limitation, the implied warranties of merchantability, fitness
for a particular purpose, noninfringement, title, quiet enjoyment, data accuracy
and system integration.
(j) To the maximum extent permitted by applicable law, in no event
shall EFT Source or any of its officers, directors, employees or agents be
liable for punitive, consequential, incidental, exemplary, indirect or special
damages (including without limitation damages resulting from lost revenues,
business, use, data or other intangibles), regardless of legal theory (including
without limitation, negligence), whether or not such damages were foreseeable
and even if EFT Source had been advised of the possibility or likelihood of such
damages.
(k) Without limiting the foregoing, EFT Source's maximum cumulative
liability to client shall not exceed the amount of fees received by EFT Source
by client for the card production services.
GENERAL. THIS ATTACHMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
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WITH THE LAWS OF THE STATE OF _TENNESSEE WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES. THIS ATTACHMENT MAY BE SIGNED IN ONE OR MORE COUNTERPARTS, ALL OF
WHICH, TAKEN TOGETHER, SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Attachment as of the
Effective Date by each of their undersigned duly authorized representatives.
MERCHANT PROCESSING INTERNATIONAL, INC. EFT SOURCE, INC.
Name:____________________________ Name:___________________________
Signature:_________________________ Signature:________________________
Title:_____________________________ Title:____________________________
Date:_____________________________ Date:____________________________