Merchant Program Management Agreement [Amendment No. 1] - iPayment Inc. and Humboldt Bank
FIRST AMENDMENT TO THE
MERCHANT PROGRAM MANAGEMENT AGREEMENT BETWEEN
IPAYMENT, INC.
AND
IPAYMENT TECHNOLOGIES, INC.
AND
HUMBOLDT BANK
This First Amendment (the "Amendment") to the Merchant Program Management
Agreement between iPayment, Inc. and iPayment Technologies, Inc. and Humboldt
Bank dated September 1, 2001 (the "Agreement") is entered into as of this the
21st day of March, 2002.
RECITALS
WHEREAS, the parties entered into the Agreement in order to govern the
relationship of the parties with respect to credit card settlement transactions
and sponsorship; and
WHEREAS, the parties wish to clarify the definition of "Customer,"
"Merchant," "Merchant Account," and "Merchant Agreement" (as defined in the
Agreement); and
WHEREAS, the parties wish that the remaining terms of the Agreement
remain the same.
NOW THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties agree to amend the Agreement as
follows:
1. Article I, the definition of "Customer" shall be amended in its
entirety to read as follows:
"CUSTOMER" means an entity which is serviced or solicited by
iPayment (or any of iPayment's agents or independent contractors who
have entered into a tri-party agreement with iPayment and Bank) to join
the Merchant Program, thereby becoming a Merchant.
2. Article I, the definition of "Merchant" shall be amended in its
entirety to read as follows:
"MERCHANT" means any Customer who enters into a Merchant
Agreement with iPayment and Bank, (or with Bank through an agent or
independent contractor of iPayment who has entered into a tri-party
agreement with iPayment and Bank for the purpose of soliciting
merchants for credit card processing, and such Customer's application
is submitted to Bank by iPayment) for the purpose of participating in
the Merchant Program, or whose contract for Charge Card processing
services with another Acquiring Member and iPayment has been assigned
to Bank and/or iPayment, as applicable, or whose Transactions are
otherwise processed pursuant to this Agreement. It is intended by the
parties that "Merchant" also includes any merchant which has (i) been
solicited by iPayment or whose paperwork has been submitted to the Bank
by iPayment or by any of its agents or independent contractors who have
entered into a tri-party agreement with iPayment and Bank for the
purpose of soliciting merchants for credit card processing, (ii)
executed First Bank of Beverly Hills' Merchant Credit Card Processing
Agreement forms, and (iii) been accepted by Humboldt pursuant to that
certain Agreement between Bank, First Bank of Beverly Hills and
iPayment entered into in August, 2001 entitled CONSENT TO USE AGREEMENT
FORMS AND ASSIGNMENT OF RIGHTS.
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3. Article I, the definition of "Merchant Account" shall be amended in
its entirety to read as follows:
"MERCHANT ACCOUNT" means the written contractual relationship
between a Merchant, on the one hand, and Bank and/or iPayment
(including but not limited to, any of iPayment's agents or independent
contractors who have entered into a tri-party agreement with iPayment
and Bank for the purpose of soliciting merchants for credit card
processing) on the other for the acquisition and processing of
Transactions.
4. Article I, the definition of "Merchant Agreement" shall be amended
in its entirety to read as follows:
"MERCHANT AGREEMENT" means the written contractual agreement
between the Merchant and Bank and/or iPayment (including but not
limited to, any of iPayment's agents or independent contractors who
have entered into a tri-party agreement with iPayment and Bank for the
purpose of soliciting merchants for credit card processing), pursuant
to which iPayment provides processing services and allows the Merchant
to participate in the Merchant Program. The Merchant Agreement includes
the Merchant Program description, and the Merchant Program Procedures.
The initial forms of the Merchant Agreement is shown in Exhibit A (as
between Merchant, Bank and iPayment) and in Exhibit B (as between
Merchant and Bank), which forms (with respect to prospective Merchant
Agreements) is subject to change from time to time per agreement
between iPayment and Bank. Merchant Agreements include those between
another Acquiring Member and a Merchant for which iPayment has the
right to provide Charge Card processing services and which have been
assigned to Bank.
5. As hereby amended and supplemented, the Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
the Agreement as of the Effective Date above:
HUMBOLDT BANK By: /s/ Ken Musante
______________________________
Its: SVP
______________________________
Date: ______________________________
IPAYMENT, INC. By: /s/ Gregory S. Daily
______________________________
Its: ______________________________
Date: ______________________________
IPAYMENT TECHNOLOGIES, INC. By: /s/ Gregory S. Daily
______________________________
Its: ______________________________
Date: ______________________________