Major Merchant Agreement - First National Bank of Omaha and Select Comfort Corp.
MAJOR MERCHANT AGREEMENT
THIS Agreement ("AGREEMENT"), by and between FIRST NATIONAL BANK OF OMAHA
("FNBO"), a national banking association with principal offices at One First
National Center, Omaha, Nebraska, and SELECT COMFORT CORPORATION with its
subsidiaries SELECT COMFORT SO. CAROLINA CORPORATION, SELECT COMFORT RETAIL
CORPORATION, and SELECT COMFORT DIRECT CORPORATION ("MERCHANT") a Minnesota
corporation with offices at 6105 Trenton Lane North, Minneapolis, Minnesota
55442-3240, shall become effective on the date executed by a duly authorized
representative of FNBO. FNBO and MERCHANT shall be collectively known hereafter
as the "PARTIES."
A WHEREAS FNBO is a Member of VISA U.S.A., Inc. ("VISA") and MasterCard
International, Inc. ("MASTERCARD") and provides transaction processing and other
services ("SERVlCES") in relation to financial services cards ("CARDS") issued
by VISA, MASTERCARD and other financial service card organizations. VISA,
MASTERCARD, and the other financial service card organizations shall be
collectively known as "ASSOCIATIONS";
B. WHEREAS MERCHANT, in furtherance of its business operations, wishes to
accept CARDS issued by the members of the ASSOCIATIONS and have FNBO process the
resulting transactions ("SALES") pursuant to the terms and conditions set out
below;
C. WHEREAS ASSOCIATIONS and FNBO each have adopted rules and regulations
relating to all aspects of SALES processing. Such rules and regulations, as
amended from time to time, are incorporated by this reference herein and shall
be referred to as the "RULES";
D. WHEREAS MERCHANT understands that this is an agreement for transaction
processing and that the fees for the services herein are calculated based on the
term of this AGREEMENT, the number of transactions processed, and the method of
processing.
NOW THEREFORE, in consideration of the mutual promises made herein and other
valuable consideration, receipt and sufficiency of which are hereby
acknowledged, the PARTIES do hereby agree as follows:
1. GENERAL:
1.1 The CARDS designated herein will be processed under the terms and
conditions of AGREEMENT as long as FNBO is contractually permitted to
offer such SERVICES by the respective ASSOCIATIONS. At the time of this
contract, FNBO is not aware of any condition, issue or circumstance that
would prevent FNBO providing services.
1.2 MERCHANT agrees to submit all SALES from CARDS accepted in MERCHANT's
business as defined in SCHEDULE A ("BUSINESS"), to FNBO in accordance
with the RULES and pursuant to the terms of this AGREEMENT.
1.3 MERCHANT agrees that this AGREEMENT is confidential and will not disclose
it to any third party without the prior written consent of FNBO.
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1.4 MERCHANT and FNBO agree to abide by the RULES. FNBO and ASSOCIATIONS may
from time to time amend the RULES or operating procedures related to
SALES and SERVICES to be effective upon thirty (30) days written notice
to MERCHANT.
1.5 MERCHANT has been supplied with the RULES and by signing AGREEMENT,
acknowledges that it has received and understands them.
1.6 Submission by MERCHANT of SALES at any time after thirty (30) days from
the date of receipt by MERCHANT of amended RULES to MERCHANT's address
via certified mail for processing statements, shall be evidence that
MERCHANT has received the amended RULES and has agreed to abide by them.
2. SPECIFIC OPERATING PROCEDURES:
2.1 MERCHANT agrees that it will comply with all CARD Acceptance Procedures
in RULES for each SALE, including, but not limited to the following:
2.1.1 MERCHANT agrees that it will obtain and record a valid positive
authorization for all SALES in accordance with the RULES before
submitting them to FNBO for processing; and
2.1.2 MERCHANT must be able to prove, by evidence of a terminal capture of a
magnetic stripe or signed sales draft showing imprint of the CARD, that
the CARD was present at the time of SALE, unless specifically set up for
Mail Order and Telephone Order ("MO/TO") transactions.
3. PAYMENT OF SUMS DUE:
3.1 MERCHANT agrees to pay FNBO the fees as set out in SCHEDULE B and other
sums owed to FNBO, (collectively "FEES") for SERVICES as set forth in
this AGREEMENT as amended from time to time.
3.2 As set out in the SCHEDULE B, discount ("DISCOUNT") is calculated as a
per item charge based on gross items (SALES and credits) processed per
month by FNBO for MERCHANT and generally includes "Processing,"
"Authorizations," "Assessments," and "Interchange." Assessments and
Interchange are the standard fees that the ASSOCIATIONS charge for the
clearing of SALES transactions and are subject to change by the
ASSOCIATIONS; FNBO has no direct control over these fees. Any adjustment
in Interchange and Assessments by the ASSOCIATIONS may result in an
adjustment in the DISCOUNT charged to MERCHANT. FNBO will notify
MERCHANT of any change in FEES caused by action of ASSOCIATIONS, in
writing, prior to any such change becoming effective. Notice to MERCHANT
of any change in FEES caused by ASSOCIATIONS may be less than thirty (30)
days.
3.3 DISCOUNT is quoted by FNBO based on the information supplied by MERCHANT
("ASSUMPTIONS"). MERCHANT agrees that the FEES are based on the term of
this AGREEMENT, the ASSUMPTIONS, and the method of processing. MERCHANT
agrees that the ASSUMPTIONS are material facts in the calculation of the
DISCOUNT
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and other FEES. MERCHANT agrees that if the ASSUMPTIONS are
shown to be materially incorrect, FNBO may amend FEES as set out herein
to reflect such change. MERCHANT agrees to pay such amended FEES.
3.4 Unless provided otherwise herein, FNBO may amend the PASS THROUGH FEES or
ASSOCIATION FEES on thirty (30) days written notice to MERCHANT.
3.5 MERCHANT is obligated to pay FNBO for all CHARGEBACKS. "CHARGEBACKS" are
SALES submitted for credit in favor of the Issuing Bank or cardholder as
a result of an Issuing Bank or cardholder dispute. MERCHANT understands
that FNBO is in no way financially responsible for CHARGEBACKS. Failure
to comply with the RULES will increase MERCHANT's exposure to
CHARGEBACKS. MERCHANT's obligation to pay chargebacks shall survive the
termination or expiration of AGREEMENT.
3.6 In the event that ASSOCIATIONS should levy a fine or penalty or assess a
charge to FNBO as a result of MERCHANT's SALES or CHARGEBACK activity
that is inconsistent with the RULES, MERCHANT agrees to pay such fines,
penalties, or charges, and any administrative fees associated with such
fines, penalties, or charges.
3.7 MERCHANT shall establish a designated account ("DESIGNATED ACCOUNT") for
the credit and debit of sums between the PARTIES. MERCHANT agrees to
maintain a positive balance in the DESIGNATED ACCOUNT. If AGREEMENT is
terminated for any reason, the DESIGNATED ACCOUNT shall be maintained for
a period of one hundred twenty (120) days in order to secure the
obligations of MERCHANT hereunder unless otherwise agreed in writing by
the PARTIES hereto.
3.8 FNBO agrees to pay MERCHANT for SALES less CHARGEBACKS and FEES owed to
FNBO by MERCHANT. FNBO shall deduct CHARGEBACKS and FEES from incoming
transactions or debit the same from MERCHANT's DESIGNATED ACCOUNT.
3.9 In the event that FNBO invoices MERCHANT for any FEES and MERCHANT does
not pay such sums within thirty (30) days from date of receipt of
invoice, FNBO will charge, and MERCHANT agrees to pay, a late fee of one
and one-half percent (1.5%) on the balance outstanding on the unpaid
invoices accruing on a monthly basis.
3.10 If MERCHANT breaches AGREEMENT or if FNBO identifies suspicious or
irregular activity related to SALES, FNBO may refuse to process SALES
and/or may hold funds pending the cure of such breach or resolution of
such activity.
3.11 Voice Assisted Calls are considered to be any call to the Voice
Authorization Center for any reason other than a Voice Authorization.
3.12 In the event AGREEMENT is terminated early for any reason other than set
out in Section 5.1, 5.2.1, 5.2.2, or 5.2.4, MERCHANT agrees to pay FNBO a
liquidated damages sum ("LIQUIDATED DAMAGES"). The LIQUIDATED DAMAGES
amount shall be determined by computing the number of months remaining
from the effective date of termination to the end of the INITIAL TERM and
multiplying that number by
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two-thousand dollars ($2,000.00). MERCHANT and FNBO agree that
the damages suffered by FNBO as a result of such early
termination would be extremely difficult to calculate with
precision. For that reason, the PARTIES agree that the LIQUIDATED
DAMAGES should be computed as set forth above.
3.13 MERCHANT agrees that LIQUIDATED DAMAGES shall also be due to FNBO if
MERCHANT discontinues submitting SALES for processing during the term of
AGREEMENT.
3.14 In the event either PARTY takes any action against the other PARTY to
collect any FEES or monies due, and judgment is obtained, the indebted
PARTY agrees to pay all costs of collection, including but not limited
to, attorney's fees, to the extent allowed by law.
4. TERM OF AGREEMENT:
4.1 The initial term of this AGREEMENT shall be for the term of three (3)
years (the "INITIAL TERM") commencing on the date this AGREEMENT is
executed by authorized agents of FNBO and MERCHANT. The INITIAL TERM
shall expire in the year 2000 on the last day of same month in which this
AGREEMENT was executed.
At the expiration of the INITIAL TERM, this AGREEMENT will automatically renew
for successive one (1) year periods ("RENEWAL TERM") unless terminated as set
out below.
5. TERMINATION OF AGREEMENT:
5.1 This AGREEMENT, except for any included terminal rental agreement, may be
terminated by FNBO at any time effective upon ninety (90) days written
notice.
5.2 This AGREEMENT may be terminated by MERCHANT as follows:
5.2.1 Upon FNBO's default of any material obligation to MERCHANT
hereunder and the failure of FNBO to cure such default within
thirty (30) days after written notice of such default; or
5.2.2 Upon written notice of non-renewal at least thirty (30) days
prior to the commencement of any RENEWAL TERM; or
5.2.3 On ninety (90) days written notice of termination accompanied
by payment to FNBO of the LIQUIDATED DAMAGES due at that time.
5.2.4 On ninety (90) days written notice of termination in the event
that FNBO fails to comply with Section 1.3 in SCHEDULE B.
5.3 In order to protect the ASSOCIATIONS and FNBO, FNBO may terminate this
AGREEMENT effective immediately for any of the following reasons:
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5.3.1 MERCHANT's default of any material obligation to FNBO hereunder
and the failure of MERCHANT to cure such default within thirty
(30) days after written notice by FNBO of such default;
5.3.2 In the event of insolvency, receivership or voluntary or
involuntary bankruptcy; or in the event of an assignment of any
of MERCHANT's assets for the benefit of MERCHANT's property
creditors, or in the event that any part of MERCHANT's property
is or becomes subject to any levy, seizure, assignment or sale
for or by any creditor or governmental agency without being
released within thirty (30) days thereafter; or
5.3.3 If MERCHANT fails to pay any FEES when due within ten (10) days
of written notification of delinquent payment, delivered to
MERCHANT's address via certified mail; or
5.3.4 If MERCHANT has misrepresented or omitted any material
information provided to FNBO; or
5.3.5 If MERCHANT is in breach of the RULES and has not taken
corrective action within thirty (30) days of notification of a
breach of the RULES or such period as mandated by the
ASSOCIATIONS; or
5.3.6 If MERCHANT, after FNBO's request, fails to send copies of
SALES drafts to FNBO; or
5.3.7 If MERCHANT submits for processing SALES that were not
originated as a result of a direct SALE transaction between a
cardholder and MERCHANT in the normal course of business
("LAUNDERING"); or
5.3.8 If the number of CHARGEBACKS received by MERCHANT in any one
month exceed one percent (1%) of SALES for that month in dollar
amount or transaction amount; or
5.3.9 If the number of RETURNS received by MERCHANT in any one month
exceed twenty percent (20%) of SALES for that month in dollar
amount or transaction amount
5.3.10 In the event of a material change of BUSINESS; or
5.3.11 In the event that MERCHANT, its principal, or associated
parties, is identified by the ASSOCIATIONS under any program
designed to monitor merchants; or
5.3.12 If MERCHANT fails to maintain an Accrued Return Cost in
accordance with Generally Accepted Accounting Principles
("GAAP").
5.4 Termination of the AGREEMENT shall be effective the last business day of
the month following the appropriate notice period, regardless of which
day of the month notice is given.
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5.5 Upon the notice of termination with cause or expiration of the AGREEMENT,
FNBO is entitled to retain sufficient funds to cover anticipated FEES on
a maximum of three (3) months sales. In the event that there is not
enough money retained to cover the anticipated FEES, FNBO may require
MERCHANT to deposit sufficient funds. This sum will be retained by FNBO
for a period of one hundred twenty (120) days from the date of the last
SALE processed by MERCHANT under AGREEMENT. FEES due to FNBO received
during this period will be debited from this sum. At the end of the
period defined above FNBO will release to MERCHANT the balance of the
sums retained, plus accrued interest of 1.5% per month, net of any FEES
that are then being processed or disputed.
5.6 Upon the notice of termination or expiration of the AGREEMENT, FNBO is
entitled to retain funds equal to four (4) times the monthly incoming
CHARGEBACK volume (as calculated from VISA and MASTERCARD system reports
for MERCHANT) averaged over the prior four (4) calendar months to cover
anticipated CHARGEBACKS. In the event that there is not enough money
retained to cover the anticipated CHARGEBACKS, FNBO may require MERCHANT
to deposit sufficient funds. This sum will be retained by FNBO for a
period of one hundred twenty (120) days from the date of the last SALE
processed by MERCHANT under AGREEMENT. CHARGEBACKS received during this
period will be debited from this sum. At the end of the period defined
above FNBO will release to MERCHANT the balance of the sums retained,
plus accrued interest of 1.5% per month, net of any CHARGEBACKS that are
then being processed or disputed.
6. BANKRUPTCY:
6.1 It is not the intention of the PARTIES that FNBO remain obligated to
continue processing SALES in the event of a Bankruptcy filing by
MERCHANT. Upon filing voluntary or involuntary bankruptcy proceedings by
or against MERCHANT, MERCHANT must notify FNBO in writing within five (5)
days. Notification must be sent by certified mail to FNBO at the address
for NOTICES set out herein.
6.2 Credits to MERCHANT's DESIGNATED ACCOUNT and other payments to MERCHANT
are provisional and the PARTIES agree that AGREEMENT is a contract
whereby FNBO is extending financial accommodations to MERCHANT within the
meaning of Section 365 of the Bankruptcy Code as amended from time to
time. The right of MERCHANT to receive any amounts due or to become due
from FNBO is expressly subject and subordinate to the CHARGEBACKS,
setoff, lien, and security interest rights of FNBO under this AGREEMENT
without regard to whether such CHARGEBACKS, setoff, lien, and/or security
interest rights are being applied to claims that are liquidated,
unliquidated, fixed, contingent, matured, or unmatured.
7. INFORMATION AND DOCUMENTATION:
7.1 MERCHANT shall furnish FNBO with such financial reports and statements as
FNBO may reasonably require which may include, but not be limited to the
following: (i) MERCHANT will
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provide to FNBO a copy of its Form 10K and Annual Report within one
hundred twenty (120) days of the close of its fiscal year; and (ii)
MERCHANT will provide to FNBO copies of its Form 10Q within sixty
(60) days of the close of the first three (3) fiscal quarters.
7.2 If in the opinion of FNBO, information received or discovered about
MERCHANT reflects a materially adverse change in status, or in the event
that any reasonable information requested by FNBO is not received, FNBO
may withhold the payment for SALES or require a reserve of funds be
deposited in an account at FNBO with the deposit established to cover
MERCHANT's obligations under AGREEMENT.
7.3 MERCHANT is supplied with monthly reports by FNBO regarding MERCHANT's
SALES activity. It is MERCHANT's sole responsibility to report any error
or discrepancies detected by MERCHANT in writing to FNBO within ninety
(90) days following MERCHANT's receipt of the monthly report. After such
period, MERCHANT will be deemed to have accepted the monthly reports as
delivered.
8. PROCESSING RESTRICTIONS:
8.1 MERCHANT understands that FNBO is not responsible for and is not able to
provide customer service for the POS devices installed by and/or operated
by any Third Party with which MERCHANT has contracted. MERCHANT should
contact the Third Party for service in respect of this equipment.
MERCHANT shall not allow any Third Party to install, remove, or modify
any terminal software application at MERCHANT's location without the
express written consent of FNBO. MERCHANT understands and agrees that
FNBO can only process SALES that are received by FNBO, and that any Third
Party is responsible for ensuring that the SALES are formatted and
transmitted to FNBO in accordance with the then current FNBO and
ASSOCIATIONS' requirements. MERCHANT also understands and agrees that in
the event that a Third Party presents SALES transactions that are not in
accordance with the then current ASSOCIATIONS' requirements that the FEES
charged to MERCHANT by FNBO may increase.
8.2 MERCHANT agrees that it will not materially change its BUSINESS or the
method in which it markets or sells the goods and services of BUSINESS
without informing FNBO. FNBO may only process SALES from BUSINESS as
defined in the AGREEMENT.
9. WARRANTIES AND INDEMNITIES:
9.1 MERCHANT understands that FNBO merely provides processing services for
SALES and is neither a partner in MERCHANT's business operations nor a
guarantor of the receipt by MERCHANT of the proceeds of SALES.
Furthermore, FNBO does not guarantee that SALES will not be subject to
CHARGEBACKS. However, this Section does not eliminate FNBO's legal
obligation to remit proceeds of SALES to MERCHANT nor limit MERCHANT's
ability to pursue payment of SALES proceeds submitted to FNBO in
accordance with the terms of this AGREEMENT.
9.2 MERCHANT warrants that it has not been terminated from depositing SALES
with any other member of the ASSOCIATIONS.
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9.3 MERCHANT warrants that at the time of depositing SALES for processing (i)
it has the right to assign such SALES to FNBO and does by this reference
assign all its rights, title, and interest to payment for such SALES to
FNBO so that FNBO may process SALES under AGREEMENT; (ii) it has no
knowledge of any fact that would impair the collectability of the SALES;
and (iii) that the SALES represent a valid obligation of the cardholder
in the amount indicated for merchandise sold and delivered or services
rendered to the cardholder by the MERCHANT only and does not involve any
element of credit for any other purpose.
9.4 Each PARTY agrees to indemnify and hold harmless the other PARTY from and
against any claims, demands, or judgments, made or recovered against it
and arising out of any breach by either PARTY of the terms of this
AGREEMENT or arising from any act or omission by either PARTY which
violates any applicable federal, state, or local laws, regulations, or
the RULES. The PARTY seeking indemnification (the "INDEMNIFIED PARTY")
shall promptly notify the PARTY from whom indemnification is sought (the
"INDEMNIFYING PARTY") of the claim and, when known, all of the facts
constituting the basis for such claim. The INDEMNIFYING PARTY shall be
entitled to control the defense thereof with counsel reasonably
satisfactory to the INDEMNIFIED PARTY and, after notices from
INDEMNIFYING PARTY to the INDEMNIFIED PARTY of its election so to control
the defense thereof, the INDEMNIFYING PARTY shall not be liable to the
INDEMNIFIED PARTY under this Section for any fees of other counsel or any
other expenses with respect to the defense of such proceeding, in each
case subsequently incurred by INDEMNIFIED PARTY in connection with the
defense thereof, other than reasonable costs of investigation. If an
INDEMNIFYING PARTY controls the defense of such a proceeding, no
compromise or settlement thereof may be effected by the INDEMNIFYING
PARTY without the INDEMNIFIED PARTY's consent.
9.5 MERCHANT shall be solely responsible for losses and CHARGEBACKS, incurred
as a result of, or arising out of any fraud including LAUNDERING,
negligence, or willful misconduct on the part of MERCHANT, or one or more
of MERCHANT's employees or agents.
9.6 MERCHANT covenants and warrants that it shall maintain a positive net
worth during the term of this AGREEMENT. If MERCHANT fails to maintain a
positive net worth during the term of this AGREEMENT, FNBO may, at its
option, immediately terminate this AGREEMENT.
9.7 FNBO hereby represents that the entering into of this AGREEMENT has been
duly authorized by FNBO and that this AGREEMENT constitutes a legal,
valid and binding obligation of FNBO, and is enforceable against FNBO in
accordance with its terms.
9.8 FNBO hereby represents that it has the full legal power and authority to
enter into performance obligations under this AGREEMENT.
10. NOTICES:
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10.1 All notices required under this AGREEMENT shall be written notices
effective, unless otherwise stated in AGREEMENT, upon the earlier of
actual receipt thereof or the third (3rd) business day following such
notices being deposited postage prepaid in the United States Postal
System. Additionally, notices may be delivered via Telecopy and will be
deemed received on the date such notices are sent.
10.2 All notices shall be sent to the following addresses:
IF TO FNBO:
First National Bank of Omaha.
One First National Center
16th & Dodge Street
Box 2196
Omaha, NE 68103-0196
Attention: Merchant Legal and Compliance
10.3 If to MERCHANT: At the address set out in SCHEDULE A hereto or such
alternative address as designated in writing by MERCHANT.
10.4 Either PARTY may designate alternate addresses by giving the other
fourteen (14) days written notice of the change in address.
11. MISCELLANEOUS:
11.1 FNBO, may from time to time, delegate duties under AGREEMENT without
giving notice to MERCHANT, provided, however, that FNBO will remain
liable to MERCHANT for any obligations existing under AGREEMENT. Except
as expressly provided in AGREEMENT, MERCHANT may not assign its rights or
delegate its responsibilities under this AGREEMENT without the prior
written consent of FNBO, which reasonable consent will not be withheld.
11.2 This AGREEMENT shall be governed by and construed in accordance with the
laws of the State of Nebraska. The PARTIES also agree that in the event
of any dispute regarding this AGREEMENT, the courts of the State of
Nebraska shall have and be vested with personal jurisdiction over the
PARTIES.
11.3 No delay or failure by either PARTY to exercise any right under
AGREEMENT, and no partial or single exercise of that right, shall
constitute a waiver of that right or any other right, unless expressly
provided for in AGREEMENT.
11.4 Neither PARTY is liable nor responsible for any failure or delay in
performance caused by any Act of God, strikes, flood, fire, war, public
enemy, electrical or equipment failure, failures by third parties, or
other events beyond their control.
11.5 The obligations of all PARTIES incurred prior to the effective date of
termination of AGREEMENT will survive the termination of AGREEMENT. In
the event that any portion of AGREEMENT is held invalid or unenforceable
for any reason, it is agreed that any invalidity or unenforceability will
not affect the remainder of the same and the
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remaining provisions will remain in full force and effect. The PARTIES
agree that any Court of competent jurisdiction may modify any
objectionable provision of the AGREEMENT so as to render it valid,
reasonable and enforceable. 11.6 This AGREEMENT may be amended or
modified by mutual consent of the PARTIES.
11.7 By signing the AGREEMENT, MERCHANT represents that it has the full legal
power and authority to enter into performance obligations under
AGREEMENT. MERCHANT also represents that the entering into of this
AGREEMENT has been duly authorized by MERCHANT, that the signer is a duly
authorized signatory for the MERCHANT and that this AGREEMENT constitutes
a legal, valid, and binding obligation of MERCHANT and is enforceable
against MERCHANT in accordance with its terms.
11.8 FNBO agrees not to use any information supplied by MERCHANT in the
Purchasing Card Information which is required for acceptance of
purchasing cards, in its decision as to whether to accept MERCHANT for
processing. MERCHANT agrees to hold FNBO harmless from any and all
claims relating to the collection, processing, dissemination, and use or
misuse of the information contained in the Purchasing Card Information.
MERCHANT acknowledges that the information from the Purchasing Card
Information will be sent to MERCHANT's corporate customers who pay with a
purchasing card. MERCHANT agrees that FNBO is not responsible for any
actions or omissions of others regarding this information.
11.9 With respect to Sections 2.5 and 18.2 of the RULES, FNBO acknowledges
that MERCHANT submits SALES for processing prior to shipping of products.
11.10 This AGREEMENT constitutes the entire understandings of the PARTIES and
supersedes all prior contracts, agreements, and negotiations between the
PARTIES whether verbal or written, as to the matter contained herein.
IN WITNESS WHEREOF, the PARTIES hereto have caused this AGREEMENT to be executed
by their duly authorized officers, effective as of the date executed by FNBO.
First National Bank of Omaha Select Comfort, Inc.
By: /s/ Nick Baxter By: /s/ D.J. McAthie
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Print Name: Nick Baxter Print Name: D.J. McAthie
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Title: Vice President Title: EVP - CFO & CAO
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Date: 12/19/97
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