Sample Business Contracts

Merchant Services Agreement - Global Payments Direct Inc. and Online Data Corp.

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                           MERCHANT SERVICES AGREEMENT

This Agreement made as of the 27th day of April 2002 between Global Payments
Direct, Inc. (hereinafter referred to as "Global") with principal offices
located at Four Corporate Square, Atlanta, GA 30329-2009 and Online Data Corp.
(hereinafter referred to as "ISO") with principal offices located at 2 Westbrook
Corporate Center, Suite 200, Westchester, Illinois, 60154.

In consideration of the mutual promises hereinafter set forth, the parties
hereby agree as follows:


      ISO will market Global's merchant processing services to merchants. Global
      will provide ISO with the Global credit policies and ISO agrees to use its
      best efforts not to accept any merchant application which does not meet
      Global's credit criteria ISO will prescreen all potential merchants and
      submit to Global a complete application package containing the findings in
      the pre-screening process. Global will use reasonable efforts to accept or
      decline any such merchant within two business days of receipt of a
      completed application by Global's credit department. Global may refuse to
      accept any such merchant and such decision shall be at the sole discretion
      of Global. A referred merchant shall be considered accepted when (1) it
      has been approved by Global, and (2) it has a fully executed merchant
      agreement (the "Merchant Agreement") between the merchant, Global, and a
      member of MasterCard and Visa (if required by the applicable card
      association network). Any such accepted merchant shall hereinafter be
      referred to as a Merchant.


      1.    Credit Review. Global will provide on-going credit review for all
            Merchants. Upon request from Global, ISO will reasonably assist
            Global in obtaining and providing updated financial information from
            any Merchant.

      2.    Collections. Global will make reasonable attempts at collecting any
            amount owed by a Merchant under its Merchant Agreement but ISO will
            reasonably assist Global, as requested, in such collection efforts.
            Subsequent to Global's receipt of payment from ISO, as set forth
            herein, of any amount due to Global from a Merchant under a Merchant
            Agreement, Global will promptly assign to ISO the account receivable
            resulting from the unpaid obligation of the Merchant, allowing ISO
            to assume the collection efforts associated with the unpaid Merchant


      3.    (a) Chargebacks and Credit Losses. Global agrees to use reasonable
            efforts to process retrieval requests and chargebacks relating to
            Merchants in an expeditious manner. ISO shall bear any and all
            losses, costs, or expenses, including reasonable outside attorney's
            fees, arising from or related to all chargebacks and credit losses
            in respect of any Merchant Agreement, including the principal amount
            of all chargebacks and credit losses. An amount equal to ISO's
            liability for the chargebacks, credit losses, costs and expenses
            referenced above will be deducted by Global each month from the
            Reserve Account identified below in Section 3(b), and/or from ISO's
            monthly payment due from Global hereunder and defined as
            Compensation in Section D below. If the ISO's liability for such
            losses cannot be satisfied each month through deductions from the
            Reserve Account and/or from ISO's Compensation due from Global
            hereunder, ISO will promptly pay the entire amount or any balance
            due for the applicable month to Global within ten (10) business days
            of Global's request for such payment. This Section shall survive
            termination of this Agreement.

            (b) Reserve Account & Compensation Deductions/Security Interests.
            (i) Global shall establish a deposit account (the "Reserve Account")
            to secure the performance of ISO hereunder. The Reserve Account
            shall be funded in the following manner: ISO shall fund the Reserve
            Account in the amount of $30,000 upon execution of this Agreement.
            In addition, at such time that ISO's gross monthly bankcard volume
            processed hereunder equals or exceeds $60,000,000, then, commencing
            in the month that the referenced volume is met and each month
            thereafter, Global shall debit from the Compensation payable to ISO
            hereunder and deposit into the Reserve Account that amount necessary
            to maintain the Reserve Account in an amount which is equal to
            $30,000 plus five (5) basis points of the gross dollar volume of the
            aggregate Merchant transactions processed during the two (2) months
            preceding the date of the monthly debit. The formula set forth in
            this section for calculation of the Reserve Account will be reviewed
            by Global at the end of each six (6) month period during the term of
            the Agreement, and Global may modify the formula for calculating the
            Reserve Account after each such review as it deems necessary to
            insure that the Reserve Account is proportionate to the then current
            measure of credit losses, chargebacks and related expenses
            hereunder. Global will provide ISO with notice of modifications to
            the Reserve Account formula which shall be effective for the next
            subsequent six (6) month period of the Agreement.

            (ii) Promptly after each debit by Global for Reserve Account
            purposes, but not later than seven (7) days after the date of such
            debit, Global shall submit to ISO a statement detailing the


            used to determine the amount debited for Reserve Account purposes
            for the subject month, and stating the then current balance of the
            Reserve Account.

            (iii) ISO hereby grants to Global and member bank a security
            interest in the Reserve Account and in all of its rights, title and
            interest in the Compensation amounts due to ISO and hereby
            authorizes Global to deduct from the Reserve Account and the
            Compensation any amounts due to Global or the member bank from ISO
            hereunder. ISO will not grant to any third party a security interest
            in the Reserve Account or in its rights, title and interest in the
            Compensation, nor will it pledge, assign, or permit any lien to
            attach to the Reserve Account or to its rights, title and interest
            in the Compensation. ISO agrees to execute any documents and to take
            any other actions as requested by Global to perfect the security
            interests granted herein. Global shall refund to ISO any Reserve
            Account balance which exists on the date which is one hundred and
            eighty (180) days after the effective date of the termination of
            this Agreement.

      4.    Personal Guaranty. In addition to the foregoing, a principal of ISO
            or other third party-acceptable to Global shall execute the personal
            guaranty attached hereto as Appendix C thereby guaranty the
            performance of the ISO hereunder.

      5.    Merchant Enrollment and Accounting Data. Global will provide
            Merchant accounting services through a vendor of its choice. Global
            will designate an account representative to ISO to assist them with
            questions, account changes, deletions, etc. ISO shall be responsible
            to enter the Merchant data into and to maintain such data in the
            master file. ISO shall be responsible for and shall indemnify Global
            with regard to any liability arising from ISO's failure to properly
            maintain the Merchant data in the master file. If ISO requests
            additional reports, microfiche, or customized requirements, Global
            shall use reasonable efforts to accommodate such requests upon
            mutually agreeable pricing.

      6.    Customer Service. ISO will provide POS terminal deployment and
            support. ISO will provide other primary Merchant customer services,
            including services related to Merchant deposit inquiries and
            Merchant disputes. Global will provide services related to
            chargebacks and retrievals as set forth in Section 3 above.
            Financial adjustments must be provided to Global for posting to
            Merchant accounts. Any notifications regarding processing terms,
            pricing, or issues provided to the Merchants by ISO applicable to
            services provided by Global or contemplated hereunder must be
            reviewed and approved by Global in advance of distribution of such



      ISO agrees not to directly, knowingly, or actively solicit any merchant
      business currently processing or utilizing Global's services; provided,
      however, that the foregoing restriction shall not apply in the event ISO
      discovers for the first time that Global is processing for a merchant
      during the course of ISO's actual and inadvertent solicitation. The
      individuals signing this Agreement at the end do so bind themselves as ISO
      and personally to the provisions of this Section C.


      Global agrees to pay or cause its successors or assigns to pay ISO as full
      consideration and compensation for all of ISO's duties and obligations
      hereunder, the fees set forth in Appendix A, payable on the 15th day of
      the month following the month during which they are earned (the
      "Compensation"). Global shall have the right to change any fees or charges
      on Appendix A upon sixty (60) days written notice to ISO unless such
      changes are the result of pass-throughs in which event Global shall
      provide ISO with sixty (60) days written notice or such lesser notice as
      reasonably practicable under the circumstances. Notwithstanding the
      foregoing, in the event that any increase in the fees and charges on
      Appendix A (excluding increases for pass-throughs) exceeds five (5%)
      percent of the then current fees and charges, ISO may terminate this
      Agreement upon sixty (60) days written notice to Global, unless Global
      agrees to reduce the increase so that it is equal to or less than the five
      (5%) percent measure. In any event, ISO shall have the right to direct
      Global to pass through to the Merchants such increase so that the
      Compensation paid to ISO shall be equal to that received prior to the
      change. This Section shall survive termination of this Agreement for as
      long as Global or its successors and assigns continually processes for
      such Merchant and ISO continues to comply with Sections B, C, E, F, G, H,
      and I of this Agreement.

      ISO agrees to pay to Global all card association and network organization
      registration, association, and other fees incurred as a result of this
      Agreement or the processing contemplated hereunder.


      ISO shall provide to Global, concurrently with the execution hereof, a
      full and complete schedule of all fees and charges, including equipment
      sales or lease charges, assessed or charged by ISO to any merchant who
      makes application for a merchant agreement with Global. ISO agrees not to
      alter, change or amend any fee or charge reflected on this ISO schedule on
      file with Global without notifying Global and further agrees that no
      charges shall be made or



      assessed against any merchant applicant in excess of the charges reflected
      on the ISO schedule.


      1.    Merchant Notification. ISO must provide Global with copies of
            notifications affecting processing, pricing and issues thirty (30)
            days prior to receipt of such notification by Merchants if such
            notification relates to services provided by Global or its
            affiliates hereunder.

      2.    Right To Terminate Merchant Agreements. Global shall have the right,
            in its sole discretion, to terminate, suspend or otherwise close any
            Merchant. Global will use its best judgment to determine the method
            used to close a Merchant, with the understanding by both parties
            that continuing to process for an account (while suspending payment)
            may occasionally be more prudent than immediate termination of
            services. Global agrees to notify ISO of such terminations,
            suspensions or closures within five (5) business days of the end of
            the month during which these events occur.

      3.    Other products and services. Except as otherwise set forth in
            Section C hereunder or otherwise under this Agreement, Global
            recognizes ISO's rights to solicit and service other products and
            services to Merchants, including, but not limited to, equipment
            leasing services.

      4.    Assignment of Merchant Agreements. Notwithstanding the solicitation
            restrictions set forth in Section C above, subject to Global's
            rights under Section 0.2 below, and assuming ISO's full compliance
            with all of the terms of this Agreement, at any time during the term
            of this Agreement, ISO may instruct Global upon written notice, and
            Global hereby agrees, to assign all of its rights and obligations in
            all or an identified segment of the Merchant Agreements to another
            transaction processor designated by ISO, and will coordinate with
            the member bank for the purpose of requesting its assignment of its
            rights and obligations under the subject Merchant Agreements to
            another member bank designated by ISO, conditioned upon the
            execution of novation(s) by all interested parties to effect a full
            and final release of Global and the member bank from each assigned
            Merchant Agreement, such novation(s) and release(s) to become
            effective on the effective date of the assignments, and subject to
            any other requirements of the member bank. In the event of an
            assignment of the Merchant Agreements as set forth above during the
            initial term of the Agreement, ISO shall pay to Global a fee (the
            "Exit Fee") equal to the product of (a) Global's average monthly
            revenue received hereunder (such monthly average not to be less than
            eighty (80%) percent of the highest monthly revenue received during
            the twelve (12)


            month period, or such lesser number of months that the Agreement has
            been in effect, immediately preceding the date of the written notice
            described above) and (b) fifteen (15), which product shall equal the
            Exit Fee, which Exit Fee shall be payable to Global by ISO prior to
            its assignment of its rights and obligations under the Merchant
            Agreements. Any and all reasonable costs of Global and the member
            bank associated with the assignment of the Merchant Agreements shall
            be paid by ISO and/or reimbursed to Global and the member bank by
            ISO within thirty (30) days of the date of Global's invoice for
            reimbursement of such costs.


      The parties agree that the terms of this Agreement, as well as all
      information of a business nature relating to the business operations of
      the parties and customer information, which are disclosed in connection
      with this agreement are confidential. The parties shall not, without the
      express prior written consent of the other party, use (except as
      contemplated by this Agreement) disclose or permit access to any such
      confidential information during the term of this Agreement or for a period
      of two (2) years thereafter. Each party agrees to cause its employees and
      agents to take such action as shall be reasonably necessary to preserve
      and protect the confidentiality of such information.

      The obligations imposed upon either party herein shall not apply to

      1.    which becomes available to the public through no wrongful act of the
            receiving party; or

      2.    which may be published prior to the date hereof, of

      3.    which is already in the possession of the receiving party and not
            subject to an existing agreement of confidence between the parties;

      4.    which is received from a third party without restriction and without
            breach of this Agreement or any other agreement of confidence; or

      5.    which is independently developed by the receiving party (without use
            of information provided hereunder); or

      6.    which is disclosed pursuant to a requirement or request of a
            government agency or a court of competent jurisdiction.



      Upon seven days notice, ISO agrees to furnish Global such financial
      statements and information concerning ISO, its principals, partners,
      proprietors, or its affiliates as Global may from time to time reasonably
      request. Global, or its duly authorized representatives, shall have the
      right to review the books, records, and operations of ISO upon request
      during normal business hours. ISO and each of the parties whose signatures
      appear below authorizes Global to order a consumer credit report or any
      other background report of ISO, such individuals, or any officer,
      shareholder, managing agent, principal, partner, proprietor, or affiliate
      of ISO. Subsequent reports may be ordered in connection with updating,
      renewing, or continuing this Agreement. Upon the written request of any
      individual who is the subject of a consumer credit report, Global will
      provide the name and address of the consumer credit reporting agency
      furnishing such report.


      ISO acknowledges the proprietary interest of Global Payments Inc. in and
      to all trademarks, logos and trade names and any goodwill attaching
      thereto. ISO further agrees not to use the name, logo, or marks of Global
      Payments Inc., Global Payments Direct, Inc., Global Direct, Global,
      National Data Payment Systems, Inc., NDPS, CNET Card Acceptance Services,
      CNET, National Data Corporation, NDC, Pulse, CASH STATION, American
      Express, HONOR, YANKEE 24, NYCE, MAC, MOST, STAR/EXPLORE, Interlink,
      Maestro, Diners Club, Discover, or JCB except as approved by Global and
      acknowledges no rights in these names, logos and marks by virtue of this
      use. Nothing herein shall affect any rights ISO may have with respect to
      any such trademarks, logos, and tradenames under any other agreement.

      The use of the name, logo, or marks of National Data Payment Systems, Inc.
      or Global Payments Direct, Inc. may be utilized only when expressly agreed
      to in writing by Global and only under the specifics stated in the written
      agreement. Global must approve any reproduction of its name, logo, or
      marks in writing.


      This Agreement shall have an initial term of three (3) years from the date
      both parties execute this Agreement and shall thereafter automatically
      renew for successive twelve (12) month periods. Either party may terminate
      this Agreement by notifying the other party in writing at least sixty (60)
      days prior to the expiration of the initial or any renewal term.

      If either party defaults in the performance of any obligation under this
      Agreement (which shall not include a breach of the performance standards)


      and fails to remedy such default within thirty (30) calendar days after
      receipt of written notice of the default, the other party may terminate
      this Agreement upon written notice.


      Any notices permitted or required hereunder shall be deemed given when
      deposited in the United States mail with postage prepaid and addressed as

            If to Global:       Global Payments Direct, Inc.
                                Four Corporate Square
                                Atlanta, GA 30329-2009
                                Attention: Corporate Secretary

            If to ISO:          Online Data Corp.
                                2 Westbrook Corporate Center, Suite 200
                                Westchester, Illinois 60154
                                Attention: John Rante


      ISO agrees to defend, indemnify and hold Global, its parent, affiliates,
      employees, officers and directors harmless from any claims, actions,
      threatened actions, or legal proceeding arising from ISO's negligence or
      breach of any obligation under this Agreement, and against any and all
      expenses including judgments, fines, amounts paid in settlement, and any
      losses or damages resulting therefrom. This indemnification includes
      attorneys' fees and expenses and shall survive termination of this

      Global agrees to defend, indemnify and hold ISO harmless from any claims,
      actions, threatened actions, or legal proceeding arising from Global's
      negligence or breach of any obligation under this Agreement, and against
      any and all expenses including judgments, fines, amounts paid in
      settlement, and any losses or damages resulting therefrom. This
      indemnification includes attorneys' fees and expenses and shall survive
      termination of this Agreement.

      Except for a breach of Section C, G or 1, in no event shall either party
      be liable to the other party for any special, consequential, or indirect
      damages in connection with this Agreement.


      Neither party shall be liable for failure to fulfill its obligations under
      this Agreement if such failure is due to any cause or condition beyond
      such party's reasonable control, such as: natural disaster, acts of God,
      strikes, fire, floods,


      war, riot, electrical power failure, decrees of government bodies or
      communications failure.


      This Agreement shall be governed by and shall be construed in accordance
      with the laws of the State of Georgia, without regard to its conflicts of
      law provisions. If any provisions of this Agreement shall be held to be
      invalid, illegal, or unenforceable, the validity, legality and
      enforceability of the remaining provisions shall not in any way be
      affected or impaired thereby.


      (1)   This Agreement contains the full understanding of the parties with
            respect to the subject matter hereof, and no waiver, alteration or
            modification of any of the provisions hereof shall be binding unless
            in writing and signed by both parties. Failure to enforce any
            provision of this Agreement shall not constitute a waiver of
            provision by the party failing to enforce.

      (2)   Neither party to this Agreement may assign its rights or obligations
            under this Agreement without the express prior written consent of
            the other party, such consent not be unreasonably withheld or
            delayed, except that the obligations of either party under this
            Agreement may be provided or fulfilled by any parent, subsidiary,
            affiliate, successor corporation or subcontractor of such party so
            long as such party assumes full responsibility for such obligations.

            In the event ISO decides to assign any rights it may have hereunder
            in connection with the Merchant Agreements or to exercise its rights
            under Section F.4, Global shall have a right of first refusal and an
            opportunity to match any offer in connection therewith.

      (3)   Each party represents that the individual executing this Agreement
            on its behalf has the requisite power and authority to do so and
            that this Agreement constitutes a valid and binding obligation.

      (4)   Each party agrees to comply with all applicable federal, state, and
            local laws, regulations, ordinances and codes, including those
            related to payment of income and Social Security taxes, and those
            relating to equal opportunity and nondiscrimination in employment.

      (5)   If any part of this Agreement is held invalid, such invalidity shall
            not affect the remainder of the Agreement which shall be interpreted
            according to its original intent.


      (6)   Nothing herein contained shall be construed as constituting a
            partnership, joint venture, or agency between Global and ISO.
            Nothing in this Agreement shall give either ISO or Global authority,
            whether express or implied, to create any duty or obligation on
            behalf of the other. ISO has no authority to accept any business on
            behalf of Global. Business referred by ISO shall be considered an
            offer from a prospective customer, subject to Global's acceptance or
            rejection. ISO agrees not to represent itself as an affiliate, agent
            or employee of, or partner, joint venturer, co-principal or
            co-employer with Global, or any of Global's affiliates or parent
            corporation by reason of this Agreement.

      (7)   Each party agrees to become and remain at all times during the term
            hereof a registered Member Service Provider and Independent Sales
            Organization, as applicable, with Visa and MasterCard in accordance
            with, and if required by, applicable regulations as the same may be
            in effect from time to time.

      (8)   ISO agrees to immediately notify Global in writing of any change in
            the identity of its principal owners or officers.

      (9)   Each party agrees to fully comply with all existing and future rules
            and operating regulations issued by MasterCard or Visa applicable to
            merchant accounts or agreements, the use of cards or the
            transactions contemplated by this Agreement, all of which rules and
            operating regulations are expressly incorporated herein. Each party
            further agrees to fully comply with all rules and regulations of any
            other card association, network organization, or any other entity
            which governs any processing service provided to a Merchant
            hereunder, of whatever nature.

      (10)  All paragraph headings contained herein are for descriptive purposes
            only and the language of such paragraph shall control.

      (11)  The parties each agree to use commercially reasonable efforts to
            comply with the applicable performance standards set forth in
            Appendix B hereto.

Global Payments Direct, Inc.                Online Data Corp.

By:                                         By:    /s/ John Rante
   ---------------------------------               ----------------------------
Name:                                       Name:  John Rante
   ---------------------------------               ----------------------------
Title:                                      Title: President, CEO
   ---------------------------------               ----------------------------
Date:                                       Date:  4/27/02
   ---------------------------------               ----------------------------