Merchant Credit Card Agreement - First USA Merchant Services Inc. and First Virtual Holdings Inc.
FIRST USA MERCHANT SERVICES, INC.
MERCHANT CREDIT CARD AGREEMENT
THIS MERCHANT CREDIT CARD AGREEMENT (this "Agreement") is entered into
by and between FIRST USA MERCHANT SERVICES, INC., a Nevada corporation
("Company"), and FIRST VIRTUAL HOLDINGS INCORPORATED, a Wyoming corporation
("Merchant"). Under the terms of this Agreement, Merchant will honor certain
valid credit cards ("Cards") when presented as payment for goods or services,
and Company will provide certain credit card processing services to Merchant.
1.
MERCHANT SALES AND LEASES
A. HONORING CARDS. Merchant will honor without discrimination
valid Cards properly tendered for use in accordance with this Agreement and the
bylaws, rules and regulations, as they exist from time to time, of VISA,
MasterCard and other applicable credit card associations (the "Rules") and any
instructions regarding credit card processing procedures prepared by Company,
VISA, MasterCard, or other applicable credit card associations, together with
any amendments thereto (the "Operating Procedures"). Both parties acknowledge
that they believe the transactions contemplated hereunder will be in
compliance with the Rules. Company will use its reasonable efforts to assist
Merchant in maintaining compliance with the Rules.
B. AUTHORIZATIONS. Merchant agrees as follows: (i) Merchant shall
obtain authorization for all Card transactions, by contacting the approval
center designated by Company; (ii) no Sales Data (as defined below) deposited
with Company shall be effective unless a proper approval code or authorization
number is clearly marked thereon; and (iii) Sales Data shall be deposited with
Company on or before the business day immediately following the day that
such Sales Data is originated, unless Company's depository facilities are
closed on such day, in which event such Sales Data shall be deposited by 10:00
a.m. on Company's next business day.
C. EXCLUSIVITY. Merchant agrees that throughout the term of this
Agreement it will not use the services of any bank, corporation, entity or
person other than Company (i) for presentation of Sales Data (as defined below)
or other Card items into the interbank clearing systems operated by MasterCard,
Visa and other credit card associations for which Company provides processing
services, or (ii) for obtaining Card transaction authorizations. This provision
does not prohibit Merchant, during the term hereof, from entering into
agreements with other entities for comparable or competitive services which may
be utilized effective upon the expiration or termination of this Agreement.
2.
SALES DATA
A. SALES DATA. Merchant shall evidence all sales and leases made
through the use of Electronic Data Capture ("EDC") services involving the
honoring of Cards (all such resulting sales data or electronic records being
collectively referred to herein as "Sales Data").
B. ACCOUNT. Merchant shall maintain an account (the "Account") at
a bank designated by Merchant. Merchant may not close the Account without
providing Company at least five days' prior written notice of such closure and
substitution of another account. Merchant will be solely liable for all fees
and costs associated with the Account and for all overdrafts. Company may at
any time initiate credit and debit entries to correct errors or make
appropriate adjustments to the Account via ACH or otherwise, in accordance with
the terms of this Agreement. Notwithstanding the above, the Company
acknowledges that Merchant has entered into an agreement executed on or about
the date hereof with Electronic Data Systems Corporation (the "EDS Agreement")
and that the services contemplated by such agreement are outside the scope of
this exclusivity clause.
C. SETTLEMENT. Merchant's electronic transmission of Sales Data
shall be made pursuant to formats, rules and procedures established by Company
for EDC services. Merchant will be solely responsible for all communication
expenses required to accomplish the transmission of Sales Data, provided,
however, that so long as
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Merchant is using EDS, then there should be no communication expenses. Upon
receipt by Company of Sales Data in accordance with the formats, rules and
procedures of Company and the terms of this Agreement, Company will process the
Sales Data in the applicable interbank clearing systems. All credits for Sales
Data shall be held by the Company for ninety (90) days after Company's receipt
thereof. The Company shall pay interest based on interest then paid on 90-day
U.S. Treasury bills each month on the weighted average amount of Net Settlement
(as defined below) held by Company each month starting promptly with the first
month of processing hereunder. After ninety (90) days after the Company's
initial receipt of credit for Sales Data, Company will credit the Account via
ACH with an amount (the "Net Settlement") equal to credits which have been held
by the Company for over ninety (90) days, less all fees, charges and discounts
set forth in Schedule A attached hereto, as well as adjustments and
chargebacks, equipment charges (installation or purchase), Cardholder credits,
and any fees, charges, fines, assessments, penalties, or other liabilities that
may be imposed from time to time by applicable credit card associations. All
such amounts shall be due and payable at the time the related services are
rendered to Merchant or the related chargebacks or other adjustments accrue,
and Company shall decrease credits or, alternatively, debit the Account for
such amounts at such time. Company is authorized to make debits to the Account
without respect to the source of any funds to the Account. After six months
from the date Company first begins receiving credit for Sales Data and every
six (6) months thereafter, Company agrees to reconsider in good faith reducing
the Net Settlement amount and holding time thereof as described above or as
otherwise agreed.
D. DELINQUENCY. Merchant shall be responsible to Company for any
and all overdrafts that may result from the debiting of the Account by Company.
To the extent Company has not received sufficient credits from Sales Data or
the Net Settlement amount held by Company or the Account does not have a
sufficient balance to pay amounts due, then Company shall have the right to
pursue one or more of the following: (i) demand and receive immediate payment
from Merchant for such amounts, (ii) terminate this Agreement, (iii) retain any
credits received relative to Sales Data, and (iv) pursue any remedies Company
may have at law or in equity. Company shall have the right to receive and
setoff against all amounts paid by Card issuing banks in respect of Sales Data
submitted by Merchant, in satisfaction of Merchant's obligations hereunder.
At any time and from time to time, Company may notify Merchant of the
aggregate amount of debits or Merchant obligations that Company reasonably
anticipates (based on historical chargeback rates) pursuant to this Agreement
and withhold from credits to Merchant funds equal to such amount.
E. ALL SALES DATA TO BE ORIGINATED BY MERCHANT. ALL SALES DATA
DELIVERED TO COMPANY BY MERCHANT FOR PROCESSING AND CREDIT SHALL HAVE BEEN
ORIGINATED BY MERCHANT IN A BONA FIDE TRANSACTION IN WHICH MERCHANT HAS
PROVIDED SERVICES FACILITATING THE PURCHASE OF INFORMATION, GOODS OR SERVICES
FROM THIRD PARTIES OR ITS OWN BEHALF BY CUSTOMERS PRESENTING THEIR CARDS FOR
USE IN PAYMENT THEREFOR. MERCHANT SHALL NOT DELIVER OR SEEK TO OBTAIN CREDIT
FOR ANY SALES DATA THAT WERE ORIGINATED, DRAWN OR CREATED BY ANY PERSON OR
ENTITY OTHER THAN FOR THE SERVICES PROVIDED BY MERCHANT OR THE INFORMATION,
GOODS OR SERVICES PURCHASED, AS DESCRIBED ABOVE.
F. CHARGEBACKS. If any Sales Data for which Company has arranged
for credit to the Account (i) fails in any manner to comply with the applicable
terms and conditions of this Agreement or with the Rules, or (ii) any such
Sales Data is the subject of a chargeback to Company by the bank or other
financial institution issuing the Card on which the Sales Data is drawn, or
(iii) there is any dispute, claim, counterclaim, defense or setoff asserted by
a Cardholder against Merchant respecting any goods or services purchased or
leased by use of a Card, whether or not said assertion is valid, Company may
deduct from credits to Merchant or debit the Net Settlement amount held by
Company or the Account in an amount equal to 100% of the amount previously
credited for the subject Sales Data. As an alternative after Merchant has
received the settlement amount, Company may demand (in writing) that Merchant
pay to Company 100% of the amount that was previously credited for the subject
Sales Data, and Merchant shall make such payment within one (1) business day.
After merchant has received notice from Company of a chargeback, and
has deposited funds with Company in the amount previously credited for the
subject Sales Data, Merchant may resubmit such Sales Data to
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Company for a second presentation into the appropriate interbank clearing
system, provided that such resubmission is in compliance with the Rules.
If in any one month, (1) the number of Merchant's chargebacks over
exceeds 1% of Merchant's aggregate number of monthly credit card transactions
processed hereunder or (2) the amount of Merchant's chargebacks ever exceeds 3%
of the aggregate amount of monthly credit card sales represented by aggregate
Sales Data, then Company may take one or more of the following actions: (1)
withhold from settlements to Merchant an amount reasonably determined by
Company to be sufficient to cover anticipated chargebacks, (2) terminate this
Agreement, or (3) request and receive from Merchant a deposit to be maintained
in an amount reasonably determined by Company to be sufficient to cover
anticipated chargebacks. The above percentages are subject to change in
accordance with the Rules.
G. ENDORSEMENT OF SALES DATA. Merchant's delivery of any Sales
Data to Company shall be deemed an endorsement thereof by Merchant to Company,
and Company is hereby authorized to place Merchant's endorsement thereon at any
time, in order to obtain credit therefor.
H. REPRESENTATIONS AND WARRANTIES. Merchant represents that all of
the disclosures in its application to Company are true, accurate and complete
and do not omit any information necessary to make such disclosures not
misleading to Company. As to all Sales Data delivered to Company, and as to each
transaction evidenced thereby, Merchant represents and warrants to Company that
(i) the Sales Data represents a bona fide sale as described in paragraph E
above, originated by merchant in compliance with this Agreement and the Rules,
(ii) all Sales Data are free from any alteration not authorized by the
Cardholder, (iii) the transaction is in compliance with all applicable laws,
ordinances, and regulations and all rules imposed by Internet, (iv) the
indebtedness represented by the Sales Data has not been pledged as collateral
for payment of any indebtedness or obligation of Merchant, and (v) Merchant has
no knowledge or notice of information that would lead it to believe that the
enforceability or collectibility of the subject Sales Data is in any manner
impaired.
I. INDEMNITY. Merchant agrees to and hereby does indemnify and
hold Company, its affiliates, MasterCard and Visa and other applicable credit
card associations, harmless from and against any and all losses, liabilities,
claims by Cardholders or other third parties, and damages of any and every kind
(including without limitation reasonable attorneys' fees) to which such parties
may be subjected arising out of or attributed, directly or indirectly, to: (i)
any non-compliance by Merchant with this Agreement, the Rules or with the rules
imposed by Internet; (ii) any return of goods, price adjustment or other
dispute with or claim by a Cardholder (whether or not such Cardholder's claims
or demand is valid), or any credit memorandum, or any Sales Data submitted to
Company differing from the original; (iii) any chargeback that arises from the
transactions that are subject to this Agreement; and (iv) any services properly
provided by MasterCard, VISA or any other applicable credit card association in
accordance with this Agreement and the Rules.
J. DISCLAIMER; LIMITED LIABILITY. COMPANY HEREBY DISCLAIMS ALL
WARRANTIES WITH RESPECT TO THE SERVICES AND PRODUCTS PROVIDED HEREUNDER,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE.
Company will, at its own expense, correct any data in which (and to the extent
that) errors have been caused by Company's personnel, or by malfunctions of
software of machines controlled by Company. However, the expense to Company of
correcting such data shall constitute Company's only responsibility in
connection with such errors or in connection with any other performance or
nonperformance by Company under this Agreement. Under no circumstances shall
the financial responsibility of Company for any failure of performance by
Company under this Agreement exceed the fees or charges paid to Company for the
transaction or activity that is or was the subject of the alleged failure of
performance. In no event shall Company, its employees or affiliates, be liable
for special, incidental or consequential damages or claims by Merchant or any
third party relative to the transactions hereunder. If Company does not perform
its obligations in any material manner in accordance with this Agreement,
Merchant in its sole discretion shall have the right to terminate this
Agreement without liability or cost provided that Merchant has given Company at
least 60 days prior written notice of Company's nonperformance and Company has
not cured such nonperformance during such time period.
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3.
FEES, CHARGES AND DISCOUNTS
A. PRICING. Merchant shall pay Company for the services set forth
in Schedule A attached hereto in accordance with the pricing schedule set forth
therein. See also Exhibit B.
B. PRICE CHANGES. Company may change its fees, charges and
discounts from time to time resulting from increases in the fees and charges
imposed by any credit card association or third party vendors other than EDS
(which are providing a service that is an integral component of the services
provided by Company hereunder) by giving notice of the change to Merchant. All
such increases or decreases shall be passed through on a pro-rata basis. Any
price change imposed by Company that is caused by changes in the published fees
of any credit card association shall be applicable to Merchant as of the
effective date established by any credit card association. As to any price
change not thus caused by credit card association increases, Company shall
provide Merchant with at least thirty (30) days' notice of the effective date
of the price change and Merchant shall have the right to accept such increases
or both Merchant and Company agree that this Agreement shall terminate.
4.
MISCELLANEOUS PROVISIONS
A. RULES AND PROCEDURES. Merchant agrees to observe and comply
with all Rules and Operating Procedures, as may be in effect from time to time,
and with such other reasonable procedures as Company may from time to time
prescribe for sales, Sales Data, credit memoranda or deposits, and for the
services to be performed under this Agreement. Company may reasonably modify
and supplement the Operating Procedures at its discretion. Company may
terminate this Agreement upon at least thirty (30) days' prior written notice
to Merchant if Merchant fails to fully comply with this Agreement, the Rules or
the Operating Procedures.
B. RECORDS. Merchant shall store all original data evidencing
Sales Data for at least six (6) months from the date of the transaction, and
shall retain computer data or a microfilm or microfiche copy of all such data
for at least three (3) years from the date of the transaction. Merchant shall
not charge any fee for the creation or storage of such copies. If Company
receives any request for retrieval of data, Company shall promptly transmit
such request to Merchant, and Merchant shall promptly provide to Company (or to
the Card issuing financial institution if Company so directs) a copy of the
requested data, all in compliance with the applicable Rules. In addition to the
indemnity set forth herein, Merchant agrees to and hereby does indemnify and
hold Company harmless from and against any and all losses, liabilities and
chargebacks arising out of Merchant's failure to comply with a request for
retrieval of data.
C. NO DISCLOSURE OF CARDHOLDER INFORMATION. Other than in
connection with the EDS Agreement or other comparable service provider,
Merchant shall not sell, provide, exchange, or otherwise disclose to third
parties (other than to Merchant's agents and contractors for the purpose of
assisting Merchant in completing a transaction, or to the applicable credit
card association, or as specifically required by law) any Cardholder's account
number information or any other financial information about the Cardholder's
account, without obtaining the prior written consent of the Cardholder on a
document other than the Sales Data. These prohibitions shall be applicable to
any and all forms, documents and media in which such account numbers or other
information may be set forth or stored (including as examples, but without
limitation, Sales Data, carbon copies and photocopies), and Merchant shall
utilize storage and disposal procedures that will prevent any improper
disclosure of such account numbers and other information.
D. INFORMATION ABOUT MERCHANT'S BUSINESS. Merchant agrees to
furnish to Company upon five (5) days' notice such financial statements and
information concerning Merchant or its parent or subsidiary entities as Company
may from time to time request. Without prior notice given to Merchant (but
during Merchant's normal business hours), Company or its duly authorized
representatives may examine that part of the books and records (wherever
located) of Merchant that pertain to Merchant's sales and/or leases made by
honoring Cards or to
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Merchant's practices regarding Card related sales and leases, including without
limitation Merchant's books and records concerning all Sales Data previously
presented to Company for credit. Unless and until Merchant notifies Company to
the contrary, the Merchant's books and records will be located at the EDS
location in Westlake, Ohio. Merchant agrees to provide Company at least thirty
(30) days' prior written notice of any intended change to the basic nature of
Merchant's business. Merchant shall also give Company prompt notice of any
possible material adverse change to Merchant's business. Merchant agrees to
provide Company with prompt written notice if Merchant or any of its parent,
subsidiary or affiliated entities is the subject of any voluntary or
involuntary bankruptcy or insolvency petition or proceeding.
E. Entire Agreement. The Rules, Operating Procedures and all
schedules and addenda attached to this Agreement are hereby made a part hereof
for all purposes. This Agreement represents the entire understanding between
Merchant and Company with respect to the matters contained herein. This
Agreement shall prevail over the terms of the agreement governing the Account.
F. Term; Termination. The original term of this Agreement shall
commence with Company's acceptance hereof (as evidenced by an authorized
signature hereon), and it shall continue for a period of three (3) years after
the date on which Merchant's first Sales Data is presented to Company. Such
term shall automatically renew for successive three-year periods at the end of
the original and each renewal term, until terminated by either party by giving
written notice of non-renewal to the other party at least sixty (60) days and
no more than ninety (90) days before the expiration of the then current term.
In the event Merchant submits Sales Data to Company after the date of
termination for which Merchant has given notice, at the discretion of Company
this Agreement will remain effective for the renewal term.
Upon any lawful termination of the EDS Agreement, Merchant may
terminate this Agreement prior to the expiration of the term hereof upon at
least 60 days prior written notice and payment to Company of an amount equal to
$40,000. In addition to its other rights hereunder, Company may terminate this
Agreement at any time upon notice to Merchant as a result of any of the
following events: (i) any noncompliance by Merchant with this Agreement, the
Rules or the Operating Procedures which, provided there is no fraud involved, is
not cured within thirty (30) days, (ii) any voluntary or involuntary bankruptcy
or insolvency proceeding involving Merchant, its parent or an affiliated
entity, (iii) Company deems Merchant to be financially insecure, or (iv)
Merchant or any person owning or controlling Merchant's business is or becomes
listed in the Combined Terminated Merchant File maintained by VISA and
MasterCard.
Upon any termination of this Agreement, the obligations, warranties,
and liabilities of Merchant pertaining to Sales Data or credit memoranda
presented (including without limitation Merchant's obligations as to subsequent
chargebacks of such Sales Data, whether or not the amount of such subsequent
chargebacks is liquidated as of the date of termination) shall survive such
termination and shall continue in full force and effect as if such termination
had not occurred. Upon notice of any termination of this Agreement, Company
shall notify merchant of the estimated aggregate dollar amount of Merchant's
chargebacks and other obligations and liabilities that Company reasonably
anticipates subsequent to termination, and Merchant shall immediately deposit
such amount with or provide a letter of credit to Company or Company may
withhold such amounts from credits to Merchant. Company is authorized to hold
such funds for a reasonable period not to exceed ten months after termination
of this Agreement. Merchant shall have no rights to such funds until all of its
obligations under this Agreement are satisfied and Company may receive out of
such funds those amounts which are or become due to Company pursuant to this
Agreement.
G. Parties. This Agreement shall be binding on and inure to the
benefit of the parties hereto. In providing services to Merchant, Company shall
not be acting in the capacity of Merchant's agent, partner, or joint venturer,
and shall act as an independent contractor. Merchant shall not assign this
Agreement without Company's prior written consent, which consent shall not be
unreasonably withheld.
H. Governing Law; Fees. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas. The non-prevailing
party shall be liable for and indemnify the prevailing party for
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attorneys fees and expenses incurred by the prevailing party in the enforcement
of the non-prevailing party's obligations hereunder.
I. NOTICES. Unless otherwise expressly stated in this Agreement,
all notices, reports, and other documents provided for in this Agreement shall
be deemed to have been given or made when delivered in hand and a receipt
granted or after being sent by United States mail, return receipt requested or
certified mail, and addressed to such party at the address appearing herein
below, or as changed through written notice to the other party.
J. FORCE MAJEURE. Neither party shall be liable for delays in
processing or other nonperformance caused by such events as fires,
telecommunications or utility or power failures, equipment failures, labor
strife, riots, war, nonperformance of Company vendors or suppliers, acts of God,
or other causes over which the applicable party has no reasonable control.
K. EFFECTIVENESS. This agreement shall not be effective until
executed by both parties hereto.
EXECUTED this 12th day of September, 1994.
FIRST VIRTUAL HOLDINGS INCORPORATED FIRST USA MERCHANT SERVICES, INC.
First Virtual Holdings Incorporated
By: /s/ Lee Stein By: /s/ Dennis Kraft
--------------------------------------- -----------------------------
Name: Lee Stein Name: Dennis Kraft
------------------------------------- ---------------------------
Title: President Title: SVP
------------------------------------ --------------------------
ADDRESS: ADDRESS:
c/o William Bagley, Esq. 2001 Bryan Tower, 10th Floor
Boyd Building Dallas, Texas 75201
1720 Carey Avenue
P.O. Box 1436
Cheyenne, Wyoming 82003-1436
with a copy to:
Robert L. Kahan
Stein, Kahan & Rosenberg
1299 Ocean Avenue, 4th Floor
Santa Monica, California 90401
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Domestic Interchange Rates
NEW
4/1/94
INTERCHANGE MASTERCARD VISA
LEVEL
---------------------------------------------------------------
STANDARD 2.18% + $.10 2.00% + $.11
---------------------------------------------------------------
MERIT 1/TIIF I 1.60% + $.09 1.55% + $.05
(3 Days)
---------------------------------------------------------------
MERIT 2/TIFF II 1.35% + $.09 1.35% + $.05
(3 Days)
---------------------------------------------------------------
MERIT 3/PS 2000 1.30% Credit 1.25%
(2 Days) Debit 1.05% + $.03
---------------------------------------------------------------
ASSESSMENTS .09% .069% (.084% after 4/1/94)
** All rates are subject to change from Visa and Mastercard.
<PAGE> 8
FIRST VIRTUAL
SCHEDULE "A" TO MERCHANGE AGREEMENT
Assumptions and Fees
Assumptions
-----------
1. Average Transaction Size $6.00
2. Merit 3/PS2000 Qualification % 0%
3. Chargeback % .3%
4. Voice Authorization % 0%
Fees
----
1. Initiation and Service Fees
Entrance Fee -0-
Monthly Service Fee -0-
2. Transaction and Processing Fee
Per Item Fee $.07
Chargeback Fee
(if Chargeback exceeds
.3% of Total Volume) $4.50/per Chargeback
3. Authorization Fees
Voice N/A
"950" Service N/A
Long Distance/WATS N/A
4. Interchange and Assessments Pass-through Per Schedule
5. T&E Transactions
Discover N/A
American Express N/A
Other Non First USA Settled Transactions N/A
6. Additional Reporting Quoted Individually
7. Merchange Help Desk N/A
8. Terminal Support N/A
FIRST USA FIRST VIRTUAL
/s/ LS 10/17/94 /s/ Illegible 10-12-94
------ -------- ------------- --------
INT DATE INT DATE
<PAGE> 9
AMENDMENT TO MERCHANT
CREDIT CARD AGREEMENT
This Amendment to Merchant Credit Card Agreement ("Amendment") is
effective as of September 19, 1995, between First USA Merchant Services, Inc.
("Company") and First Virtual Holdings Incorporated ("Merchant") and amends that
certain Merchant Credit Card Agreement dated September 12, 1994 (the
"Agreement"), between Company and Merchant. Capitalized terms herein not
otherwise defined shall have the meaning set forth in the Agreement.
NOW, THEREFORE, the Merchant and Company agree as follows:
A. Notwithstanding paragraph 2C of the Agreement, Company shall not hold
for ninety (90) days credits for Sales Data relating to the entities listed on
Exhibit A hereto, provided that such entities shall have delivered to Company
duly authorized and executed, valid and enforceable guarantees from each of
such entities in the form of the Corporate Guaranty and Bank Debit Authorization
form attached herein. Company will credit the Account via ACH with the Net
Settlement derived from such Sales Data within three (3) business days after
Company's initial receipt of credit for the Sales Data.
B. Company upon receipt of written approval from President of Merchant
may, from time to time, add to the list of entities set forth on Exhibit A by
providing written notice duly executed by a senior vice president or
higher-level officer of Company to the Merchant. In the event any of the
entities on Exhibit A experience a material adverse change to their business,
assets or prospects, then Company may remove such entity from Exhibit A and
require that the Sales Data relative to such entity be held in accordance with
the terms of the original Agreement.
C. Any chargebacks relating to the Sales Data of the entities listed on
Exhibit A shall be paid first by Company's initiating a debit to the bank
account of the entity listed on Exhibit A to which the chargeback refers. If
such a debit is returned unpaid by the entity's bank, First USA then shall
decrease Merchant's credit for Sales Data to obtain other payment from
Merchant, as provided in the Agreement.
D. Checking account information from each entity seeking to be listed
in Schedule A and the appropriate documentation to permit as ACH withdrawal
from such checking accounts shall be provided by the entity seeking to be
listed in Schedule A on the Corporate Guaranty and Bank Debit Authorization
form or by such other form reasonably acceptable by Company.
E. Except as amended above, the Agreement shall continue in full force
and effect in accordance with the provisions thereof of the date hereof.
Specifically, but without limiting the foregoing, nothing in this Amendment
shall be construed to limit Company's ability to hold the funds of Merchant or
of the entities on Exhibit A or otherwise set out in the Agreement or construed
to limit or alter Merchant's primary liability for payment of chargebacks and
other liabilities under the Agreement.
F. The "Corporate Guaranty and Bank Debit Authorization" form attached
hereto shall not be modified without the prior written consent of First Virtual
Holdings Incorporated.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
duly executed by their respective officers.
FIRST VIRTUAL HOLDINGS INCORPORATED FIRST USA MERCHANT SERVICES, INC.
By: /s/ Lee H. Stein By: /s/ Elena Anderson
--------------------------- ----------------------------
Title: President Title: SVP
<PAGE> 10
SECOND AMENDMENT TO MERCHANT
CREDIT CARD AGREEMENT
WHEREAS, First USA Merchant Services, Inc. ("Company") and First
Virtual Holdings Incorporated ("Merchant") are parties to that certain Merchant
Credit Card Agreement dated September 12, 1994 (the "Agreement"), as previously
amended; and
WHEREAS, the parties desire to amend certain of the terms of the
Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and conditions contained herein, the receipt, adequacy and
sufficiency of which are hereby acknowledged, Merchant and Company agree,
effective as of August 31, 1996, as follows:
1. The following paragraph, which constitutes Section 1.C. of the
Agreement, is hereby deleted in its entirety:
"Merchant agrees that throughout the term of this Agreement it
will not use the services of any bank, corporation, entity or person
other than Company (i) for presentation of Sales Data (as defined below)
or other Card items into the interbank clearing systems operated by
MasterCard, Visa and other credit card associations for which Company
provides processing services or (ii) for obtaining Card transaction
authorizations. This provision does not prohibit Merchant, during the
term hereof, from entering into agreements with other entities for
comparable or competitive services which may be utilized effective upon
the expiration or termination of this Agreement."
2. The following sentence in Section 2.B. of the Agreement is
hereby deleted in its entirety:
"Notwithstanding the above, the Company acknowledges that
Merchant has entered into an agreement executed on or about the date
hereof with Electronic Data Systems Corporation (the "EDS Agreement")
and the services contemplated by such agreement are outside the scope of
this exclusive clause."
3. The second sentence of Section 2.C. of the Agreement is hereby
deleted and replaced with the following:
"Merchant will be solely responsible for all communication
expenses required to accomplish the transmission of Sales Data."
4. The following phrase in Section 4.C. of the Agreement is
deleted:
"Other than in connection with the EDS Agreement or other
comparable service provider,"
5. The first sentence of the first paragraph of Section 4.F. of
the Agreement is hereby deleted and replaced with the following:
"The original term of this Agreement shall commence with
Company's acceptance hereof (as evidenced by an authorized signature
hereon) and it shall continue through December 31, 1999."
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6. The following sentence in the second paragraph of Section 4.F. of
the Agreement is hereby deleted in its entirety:
"Upon any unlawful termination of the EDS Agreement, Merchant
may terminate this Agreement prior to the expiration of the term hereof
upon at least 60 days prior written notice and payment to Company of an
amount equal to $40,000."
7. SCHEDULE A and EXHIBIT B to the original Agreement are hereby
deleted in their entirety. In the event that Merchant processes 500,000 or more
credit card transactions through Company in any 12 month period and the average
transaction size equals or exceeds $2.00, then the pricing set forth on
SCHEDULE B hereto shall apply to such transactions. If the above two minimum
requirements are not met, then Merchant shall be subject to the pricing set
forth in SCHEDULE A hereto. The Company shall charge the Merchant based on
SCHEDULE B. Twelve months after the Company first begins processing
transactions through Company, Company shall audit the credit card transactions
processed by the Merchant and if the audit determines that the Merchant has not
satisfied the two minimum requirements stated in this section, the Merchant
shall pay the Company the difference between what it paid under SCHEDULE B and
what it should have paid under SCHEDULE A within thirty days of receiving such
audit report in writing. There shall be no Interest on said underpayment.
Unless agreed otherwise in writing, the same procedure shall be used in each
subsequent twelve month period.
8. Except as modified hereby, the terms and conditions of the Agreement
shall continue in full force and effect; provided, however, that if any term or
condition herein conflicts with or is inconsistent with any term or condition
of the Agreement, such term or condition herein shall prevail.
9. Capitalized terms used herein and not otherwise defined shall have
their respective meanings set forth in the Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
duly executed by their respective officers.
FIRST VIRTUAL HOLDINGS INCORPORATED FIRST USA MERCHANT SERVICES, INC.
By: /s/ Lee H. Stein By: /s/ Phil Taken
--------------------------- ----------------------------
Title: President Title: Senior VP & Gen. Counsel
<PAGE> 12
FIRST USA MERCHANT SERVICES,INC.
CREDIT CARD PROCESSING SERVICES AGREEMENT
SCHEDULE A - PHASE I PRICING
MERCHANT NAME: First Virtual Holdings, Inc.
MERCHANT AGREEMENT CONTRACT NUMBER: 707133
PROCESSING FEES
---------------
Per electronic authorization directly through Company $ .10
Per electronic settlement directly through Company
(fee applies separately to each sale and each credit) .10
Per Voice Authorization .65
Per Voice AVS (Address Verification Service) Authorization .90
Per Audio Response Unit Authorization .50
Per JCB CHARGEBACK Processed/Represented 7.50
Per ACH (Automated Clearing House) Funds Transfer 2.50
Monthly Maintenance - Dedicated Data Communication Link via T-1
line between Dallas and Salem, in lieu of Leased Line $500.00/month
Special Reporting Per then current
price list available
Postage, Supplies, Equipment & Other Services Charged as used
Other Communication Services Quoted as Requested
JCB CARD FEEs 2.00%
VISA and MasterCard Interchange, assessments
and other fees Pass-through at cost
Per VISA or MasterCard chargeback received
and represented $5.00
If on any business day, MERCHANT's NET PROCEEDS are negative, any such
amounts shall be collected from MERCHANT's designed bank account via ACH.
NEGATIVE BALANCE
----------------
MERCHANT shall be charged a fee against NET PROCEEDS after the number of
Negative Balances for a calendar month has exceeded two occurrences based
on the following schedule.
NEGATIVE BALANCE Amount FEE PER OCCURRENCE
----------------------- ------------------
$0 - $300.00 $25.00
$301.00 - $700.00 $50.00
$701.00 - $1,000.00 $75.00
$1,001.00 - $5,000.00 $100.00
$5,001.00 - $10,000.00 $200.00
$10,001.00 + $300.00
<PAGE> 13
FIRST USA MERCHANT SERVICES, INC.
CREDIT CARD PROCESSING SERVICES AGREEMENT
SCHEDULE B--PHASE II PRICING
MERCHANT NAME: First Virtual Holdings, Inc.
MERCHANT AGREEMENT CONTRACT NUMBER: 707133
PROCESSING FEES
---------------
VISA, MasterCard and American Express
Per electronic authorization directly through Company $ .04
Per electronic settlement direct through Company (fee applies
separately to each sale and each credit) .06
Per other (i.e.: Diners, Discover, JCB, etc.) electronic authorization directly
through Company .10
Per other (i.e.: Diners, Discover, JCB, etc.) electronic settlement directly
through Company .10
Per Voice Authorization .65
Per Voice AVS (Address Verification Service) Authorization .90
Per Audio Response Unit Authorization .50
Per JCB CHARGEBACK Processed/Represented 7.50
Per ACH (Automated Clearing House) Funds Transfer 2.50
Monthly Maintenance--Dedicated Data Communication Link via T-1 line
between Dallas and Salem, in lieu of Leased Line $500.00/month
Special Reporting Per then current price list available
Postage, Supplies, Equipment & Other Services Charged as used
Other Communication Services Quoted as Requested
JCB CARD FEEs 2.00%
VISA and MasterCard Interchange, assessments and other fees Pass-through at cost
Per VISA or MasterCard chargeback received and represented $5.00
If on any business day, MERCHANT's NET PROCEEDS are negative, any such
amounts shall be collected from MERCHANT's designated bank account via
ACH.
NEGATIVE BALANCE
----------------
MERCHANT shall be charged a fee against NET PROCEEDS after the number of
Negative Balances for a calendar month has exceeded two occurrences based
on the following schedule.
NEGATIVE BALANCE AMOUNT FEE PER OCCURRENCE
$0 - $300.00 $25.00
$301.00 - $700.00 $50.00
$701.00 - $1,000.00 $75.00
$1,001.00 - $5,000.00 $100.00
$5,001.00 - $10,000.00 $200.00
$10,001.00 + $300.00
<PAGE> 14
EXHIBIT B
First USA, Inc. Dennis P. Kraft
Post Office Box 650370 Senior Vice President
Dallas, TX 5265-0370 Agent Bank/Direct Merchant Sales
Tel (214) 746-8365
FIRST USA
October 11, 1994
Lee H. Stein
Chief Executive Officer
First Virtual Holdings, Inc.
Facsimile No. (619) 759-0501
Dear Lee,
I wanted to respond to your request for written confirmation of the First USA
proposal as it relates to interchange and assessments from Visa and MasterCard.
As you know, it is our proposal to pass through these expenses directly to First
Virtual at the rates outlined in the attachment to the contract.
It is our understanding that the Visa/MasterCard transactions generated by First
Virtual and EDS will generally qualify for TIIF 1 and Merit I, respectively, as
the rules for interchange exist today. It is important to note that each
transaction needs to qualify on its own merit based on the requirements of the
associations as to message content and timing. These requirements as well as the
rules from Visa and MasterCard are subject to change.
Lee, I will be in contact soon to confirm receipt of this letter. Please let me
know if there are any other questions or if you need any further clarification.
Sincerely,
/s/ Dennis Kraft
Dennis Kraft
Senior Vice President