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GLOBAL CASH CARD
PAYROLL CARD SERVICES AGREEMENT
This AGREEMENT made this ("Agreement") ' is —72-1 of ilL 2010 by and
between GLOBAL CASH CARD, with its principal place of business at 7 Corporate Park, Suite 130,
Irvine, CA 92606 and City of Fort Collins, a municipal corporation, (the "Client").
RECITALS
Global Cash Card operates the Global Cash Card Payroll Card Service (the "Service") to provide an
electronic fund transfer service that: (i) facilitates the transfer of funds between a company, like the
Client, and any employee or other persons who receive a Global Cash Card (the "Card"); (ii) such
employees and other persons (the "Cardholders") will have full access to the funds located within
the designated ,FDIC insured bank account that corresponds to the issued Card; and (iii) those
Cardholders will be provided electronic access to their funds, individual card information, and other
transaction services as set forth in the Cardholder Agreement defined below.
Global Cash Card makes the Service available to the Client through a program (the "Program"),
tailored to the Client's specific needs.
The Service is affected under the Program through the following arrangement between Global Cash
Card, the Client and its Cardholders:
(i) Global Cash Card will issue a Card to any employee or other persons who participate
in the Service and, if necessary have agreed to the terms and conditions of the
Global Cash Card Cardholder Agreement and Disclosure Statement (the "Cardholder
Agreement");
Global Cash Card will make available to the Cardholders:
1. Automated Teller Machine ("ATM") Services. Cardholders may use Cards
at any ATM that bears the network logo that appears on the back of the
Card to make cash withdrawals or to inquire about the amount of funds
available to them.
2. Merchant Point -of -Sale ("POS") Services. Cardholders may use Cards to
purchase goods and services at any retail or other establishment that
displays the network logo that appears on the back of the Card.
3. Funds Transfer Services. Cardholders may use the provided electronic
access services to transfer funds
PAYROLL CARD SERVICES AGREEMENT 03/03/2009
11.4. Notices. All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or mailed
by registered mail, postage prepaid, to:
(a) in the case of Global Cash Card: (b) in the case of the Client:
7 Corporate Park
Suite 130
Irvine, CA 92606
Attention: Business Services
Facsimile: 949-833-7999
_City of Fort Collins
PO Box 580
_Fort Collins, CO 80522
Attention: _Linda Brown, Payroll and
Accounts Payable Supervisor
With Copy to: Purchasing
Facsimile: 970-221-6782
11.5. Severability of Provisions. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be held invalid for any reason
whatsoever, then such covenants, agreements, provisions, or terms shall be
deemed severable from the remaining covenant, agreements, provisions, or
terms of this Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Agreement.
11.6. Waivers. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced. Any failure to insist
upon strict compliance with any of the terms or conditions of this Agreement shall
not be deemed a waiver of such terms or condition, nor shall any waiver or
relinquishment of any right or power hereunder at any time or times be deemed a
subsequent waiver or relinquishment of such right or power.
11.7. Counterparts. This Agreement may be executed in one or more counterparts
and by the different parties hereto on separate counterparts, each of which when
so executed, shall be deemed to be an original, and all such counterparts shall
constitute one and the same agreement. An executed facsimile copy of this
Agreement is sufficient to evidence this Agreement and the effectiveness hereof.
11.8. Schedules and Exhibits. The Schedules and Exhibits to this Agreement, as
amended and in effect from the time of such amendment until subsequent
amendment thereto, if any, are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
11.9. Entire Agreement. This Agreement, including the Exhibits and Schedules
hereto, constitutes the entire agreement between the parties with respect to the
subject matter hereof, and supersedes all prior to contemporaneous agreements
and understandings regarding the subject matter hereof, whether written or
verbal. This Agreement may be modified or amended only in writing signed by
the parties hereto.
11.10. Effect of Headings and Recitals. The Section and paragraph headings herein,
as well as the recitals and preamble that precede the material provisions of this
Agreement, are for convenience only and shall not affect the construction hereof.
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PAYROLL CARD SERVICES AGREEMENT 03/03/2009
11.11. No Third -Party Beneficiaries. This Agreement is not intended, and shall not be
construed to, confer any rights upon any shareholder, creditor, partner or joint
venturer of Global Cash Card or any other person or entity, whether as third party
beneficiaries or otherwise, against any party hereto or their respective
directors, officers, agents, employees, representatives, affiliates or controlling
persons.
11.12. Non -Exclusivity. The Client understands and agrees that Global Cash Card's
relationship with the Client under this Agreement is non-exclusive, and that
Global Cash Card may at any time establish similar relationships with one or
more other parties for similar or any other purposes.
11.13. Amendment. This Agreement may be amended from time to time only in writing
signed by Global Cash Card and the Client.
11.14. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their successors and permitted assigns.
Client shall not transfer or assign this Agreement without the prior written consent
of Global Cash Card, such consent not to be unreasonably withheld, Global Cash
Card shall be entitled to assign its rights to its parent, affiliate, subsidiary or any
third party.
IN WITNESS WHEREOF, Global Cash Card and the Client have caused this Agreement to be
duly executed the date and year first above by their duly authorized representative.
CLIENT GLOBAL CASH CARD
By: y By
Name: James B. O'Neill II, FNIGP, CPPO Name:
Title: _Director of Purchasing and Risk Mgt.
Date:
Appr s To Form:
., t ttorney
ChY Clerk
Title:
Date:
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PAYROLL CARD SERVICES AGREEMENT 03/03/2009
EXHIBIT A
FEESCHEDULE
CLIENT FEE'S
SET-UP
WEB INTERFACE/API
MERCHANT INTERFACE
IMPLEMENTATION, TRAINING & FOLLOW-UP
IVR MESSAGING FEATURE*
CARD COST / ATM DEBIT CARD
CARD COST/MASTERCARD DEBIT CARD
LOAD FEE
PAYSTUB POSTING
W2 POSTING
SECURITY AUTHENTICATOR (3 FREE)
NOTIFICATIONS:
• EMAIL
• TEXT MESSAGE
FREE
FREE
FREE
FREE
FREE
FREE
FREE
FREE
FREE
FREE
FREE
FREE
FREE
CARDHOLDER FEE'S
ENROLLMENT FEE
ANNUAL FEE
MONTHLY FEE
CASH REWARDS PROGRAM / ENROLLMENT
CASH REWARDS PROGRAM / MONTHLY
INACTIVITY FEE / MONTHLY
(AFTER NINETY (90) DAYS OF INACTIVITY)
FIRST TRANSACTION PER PAY PERIOD
FREE
FREE
FREE
FREE
FREE
$3.00 * CALL TO DEACTIVATE
AFTER ASSIGNMENT
FREE
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PAYROLL CARD SERVICES AGREEMENT 03/03/2009
ATM - UNITED STATES
WITHDRAWAL (SURCHARGE FREE/ALLPOINT) $1.50
OTHER TRANSACTIONS $1.00
ATM - OUTSIDE UNITED STATES
WITHDRAWAL $3.50
OTHER TRANSACTIONS 1$3.25
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PAYROLL CARD SERVICES AGREEMENT 03/03/2009
1
POINT OF SALE - UNITED STATES
SIGNATURE PURCHASE FREE
PIN PURCHASE $0.50
DECLINE, INQUIRY $0.45
RETURN $0.80
POINT OF SALE - OUTSIDE UNITED STATES
SIGNATURE PURCHASE FREE
PIN PURCHASE $1.75
DECLINE INQUIRY $1.25
RETURN $1.50
MONEY TRANSFER WORLDWIDE (CARD TO CARD)
$1 -
$100
$2.00
$101 -
$250
$3.00
$251 -
$500
$4.00
$501 -
$750
$5.00
$751 -
$1000
$6.00
$1001-
$1500
$7.00
$1501-
$2500
$8.00
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PAYROLL CARD SERVICES AGREEMENT 03/03/2009
TRANSFER TO CHECKING ACCOUNT (ACH)
$1.00
PIN CHANGE
FREE
AUTOMATED TELEPHONE (U.S.)
FREE
OPERATOR ASSISTED (U.S.)
FREE
AUTOMATED TELEPHONE (OUTSIDE U.S.)
FREE
OPERATOR ASSISTED (OUTSIDE U.S.)
FREE
WEBSITE LOG IN
FREE
PERIODIC STATEMENT (MAILED - IF REQUESTED)
$1.50
GLOBAL CASH CARD CONVENIENCE CHECK
$1.50
CASH ADVANCE
2%
OVER LIMIT FEE ATM CARD
$5.00
OVER LIMIT FEE DEBIT MASTERCARD@
$15.00
BALANCE INQUIRY
• ONLINE
FREE
• IVR
FREE
• LIVE CUSTOMER SERVICE
FREE
CARDHOLDER NOTIFICATIONS
• TELECOM
$0.10
• EMAIL
FREE
• TEXT MESSAGE
FREE
BILL PAY
• CARDHOLDER DIRECT TO MERCHANT
FREE
• ONLINE
$0.99
• TELEPHONE
$0.99
LOAD CARD
DIRECT DEPOSIT
FREE
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PAYROLL CARD SERVICES AGREEMENT 03/03/2009
MONEYGRAM (CASH ONLY - U.S. ONLY) $5.95
*THESE ORGANIZATIONS MAY HAVE ADDITIONAL FEES.
PAYROLL CARD SERVICES AGREEMENT 03/03/2009
from the bank account, corresponding to their Card, to a specified account
at a financial institution.
4. Other Services available to Cardholders as outlined in disclosure
materials from time to time.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
1.1. Representations and Warranties of Global Cash Card. Global Cash Card
represents and warrants to, and covenants with, the Client that, as of the date hereof,
and throughout the term of this Agreement, that:
1.1.1. Global Cash Card is duly organized, validly existing and qualified to
transact business in each jurisdiction where it is required to be qualified,
except where such qualification is not required or where the failure to be
so qualified or remain in good standing would not have a material adverse
effect upon Global Cash Card or the ability of Global Cash Card to
perform its obligations hereunder.
1.1.2. Global Cash Card has the full power and authority to execute, deliver and
perform this Agreement and to enter into and consummate all transactions
contemplated by this Agreement, and assuming the due authorization,
execution and delivery by the other parties hereto, this Agreement
constitutes a legal, valid and binding obligation of Global Cash Card,
enforceable against it in accordance with its terms, except as
enforceability may be limited by bankruptcy, conservatorship,
receivership, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity, regardless of whether such enforcement is considered in
proceeding in equity or at law.
1.1.3. The transactions contemplated by this Agreement and the performance of
Global Cash Card of its obligations hereunder are in the ordinary course
of Global Cash Card's business, and the execution, delivery and the
performance of this Agreement and transactions contemplated herein
have been duly approved by resolutions of the Board of Directors of
Global Cash Card or an appropriate and duly authorized committee
thereof, and such resolutions and this Agreement shall be maintained
continuously as official records of Global Cash Card.
1.1.4. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor the fulfillment
of or compliance with the terms and conditions of this Agreement, will
conflict with or result in a breach of any of the terms, conditions or
provisions of Global Cash Card's articles of incorporation or by-laws or
any indenture, agreement or instrument to which Global Cash Card is now
a party or by which it is bound, or constitute a default (whether with notice,
the lapse of time, or both) or result in an acceleration under any of the
foregoing, or result in the violation of any law to which Global Cash Card
is subject.
1.1.5. There is no litigation or other proceedings
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PAYROLL CARD SERVICES AGREEMENT 03/03/2009
pending or, to Global Cash Card's knowledge, threatened, which seeks to
enjoin or prohibit the execution, delivery, or enforceability of this
Agreement, or which questions the ability of Global Cash Card to perform
its duties and obligations in accordance with the terms hereof, or which is
likely to have a material adverse effect on the financial condition of Global
Cash Card.
1.1.6. No consent, approval, authorization or order of any governmental or
regulatory authority is required for the execution, delivery and
performance by Global Cash Card of or compliance by Global Cash Card
with this Agreement or the consummation of the transactions
contemplated by this Agreement.
1.2. Representations and Warranties of the Client. The Client represents and
warrants to, and covenants with, Global Cash Card that, as of the date hereof, and
throughout the term of this Agreement, that:
1.2.1. The Client is duly organized, validly existing and in good standing as a
home rule municipal corporation recognized under the law of the State of
Colorado.
1.2.2. The Client has the full corporate power and authority to execute, deliver
and perform this Agreement and to enter into and consummate all
transactions contemplated by this Agreement, and assuming the due
authorization, execution and delivery by the other parties hereto, this
Agreement constitutes a legal, valid and binding obligation of the Client,
enforceable against it in accordance with its terms, except as
enforceability may be limited by bankruptcy, conservatorship,
receivership, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
1.2.3. The transactions contemplated by this Agreement and the performance by
the client of its obligations hereunder are in the ordinary course of the
Client's business, and the execution, delivery and performance of this
Agreement and the transactions contemplated herein are duly authorized
and this Agreement shall be maintained continuously as official records of
the Client.
1.2.4. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor the fulfillment
of or compliance with the terms and conditions of this Agreement, will
conflict with or result in a breach of any of the terms, conditions or
provisions of the Client's charter or any indenture, agreement or
instrument to which the Client is now a party or by which it is bound, or
constitute a default (whether with notice, the lapse of time, or both) or
result in an acceleration under any of the foregoing, or result in the
violation of any law to which the Client is subject, except to the extent any
of the events described in this paragraph 1.2.4 would not be expected to
have a material, adverse effect on Client's financial condition.
1.2.5. There is no litigation or other proceedings
PAYROLL CARD SERVICES AGREEMENT 03/03/2009
pending or, to the Client's knowledge, threatened, which seeks to enjoin
or prohibit the execution, delivery or enforceability of this Agreement, or
which questions the ability of the Client to perform its duties and
obligations in accordance with the terms hereof, or which is likely to have
a material adverse effect on the financial condition of Client; and
1.2.6. No consent, approval, authorization or order of any governmental or
regulatory authority, other than the Client's internal approvals, is required
for the execution, delivery and performance by the Client of, or
compliance by the Client with, this Agreement or the consummation of the
transactions contemplated by this Agreement.
2. FEES AND PAYMENTS
2.1. Fees. The fees ("Fees") related to the Service are set forth in the Fee Schedule
(the "Fee Schedule") attached as Exhibit "A", consisting of 5 pages, to this
agreement.
2.2. Payment Terms Cardholders. Global Cash Card will deduct transaction fees,
as set forth in the Fee Schedule and as stated in the Cardholder Agreement, from
the Cardholder Account upon the execution of the corresponding transaction.
Global Cash Card shall not increase Fees charged to Cardholders as set forth in
the Fee Schedule during the term of this Agreement, however, Global Cash Card
will be entitled to increase the Fees with thirty -days (30) notice to Client to offset
any direct cost increases passed through to Global Cash Card by changes in
operating rules imposed by networks, banks, processors or federal, state or local
authorities.
2.3. Payment Terms Client. Client shall pay to Global Cash Card on a monthly
basis, net 10 days, any charges owed by Client for the previous month, as set
forth in the Fee Schedule. Global Cash Card shall not increase Fees charged to
Client during the term of this Agreement, however, Global Cash Card shall be
entitled to increase fees and charges with thirty -days (30) notice to Client to offset
any direct cost increases passed through to Global Cash Card by changes in
operating rules imposed by networks, banks, processors, federal, state or local
authority.
3. ENROLLMENT
3.1. Availability of Services to Cardholders. Client shall notify all of its
Cardholders, as well as any other persons to whom the Client may from time to
time desire to offer participation in the Service (collectively, the "Prospective
Cardholders"), of the Client's participation in the Service. The Client shall make
available to all of the Prospective Cardholders the opportunity to enroll and
participate in the Service under one or more Programs.
3.2. Distribution of Enrollment Materials. The Client shall, if applicable, deliver to
each Prospective Cardholder who enrolls in the Program materials describing the
Program. The materials may include, without limitation, the Cardholder
Agreement, which includes the Cardholder Services Fee Schedule (as defined
below), a Card, A direct Deposit Authorization Form and other materials as
required.
PAYROLL CARD SERVICES AGREEMENT 03/03/2009
3.3. Client will cooperate, to the extent consistent with Client's policies and
procedures, with Global Cash Card in implementation, orientation and follow-up
strategies in the effort to maximize participation in the Payroll Card Program.
4. DEPOSIT TO THE ACCOUNT.
4.1. Regular Deposits. The Client shall promptly deposit in the designated Bank
Trust Account (the "Bank Trust Account"), by irrevocable wire transfer, ACH
transfer or other means, the Cardholder funds to be included in the Program,
which may include, without limitation, wages, salaries, bonuses, reimbursements,
incentives, promotional funds and estimated Client paid fees. With respect to
each transfer of funds by the Client to the Bank Trust Account, Client shall deliver
to Global Cash Card in the format specified in the Program Schedule attached as
Exhibit "T', data identifying the amount of such funds attributable to each
Cardholder (the "Disbursement Detail). Client acknowledges that the Program is
solely funded by the funds held in the Bank Trust Account. Global Cash Card
shall be liable to Cardholders only to the extent that Client funds for such
Cardholders have been advanced to the Bank Trust Account and Client has
provided Disbursement Detail to Global Cash Card. Global Cash Card shall have
no obligation to provide the Service, or to make any funds available, to
Cardholders with respect to whom inadequate funds are held in the Client
Account or for whom Disbursement Detail is not delivered by Client.
4.2. Maintenance of Sub -Account Entries for Each Cardholder. The Bank Trust
Account shall be controlled by the designated bank exclusively, on behalf of all
Cardholders, and Global Cash Card shall maintain individual entries in its system
reconciled to amounts in the Bank Trust Account for each Cardholder (a "Sub -
Account"). It is the responsibility of the Client to provide Cardholder information,
such as Cardholder name and other individual Sub -Account information needed
for these records.. Each such Sub -Account entry shall accurately reflect the
amount of funds in the Account that are attributable to, and held on behalf of,
each particular Cardholder.
4.3. Employee Payroll and Other Matters. The Client shall be solely responsible for
compliance with all applicable federal, state and local laws, rules and regulations
relating to payroll compensation and employment matters, including, without
limitation (i) proper withholding and timely remittance of, any and all taxes related
thereto, and
(ii) the timely delivery of payment stubs and similar payroll information to
Cardholders setting forth all required information.
5. TRANSACTION DATA PRIVACY
5.1. Ownership of Certain Property. The Service, Programs, Cards, Card numbers,
PINs, and the intellectual property related to the operation and functionality of
such items and processes, as well as their relationship to, and interaction with,
the Services, are the sole property of Global Cash Card. The Client shall not use,
divulge, or grant any third party access to any of the foregoing intellectual and
other property, except: (i) as permitted under the Client Privacy Policy Statement
(as defined below, (ii) as may be necessary to conduct its internal business, (iii)
as may be required by law, or (iv) with the prior express written consent of Global
PAYROLL CARD SERVICES AGREEMENT 03/03/2009
Cash Card.
The Cardholders transaction information, including, without limitation, the
information presented in the statements, is the property -of the respective
Cardholders. Neither Global Cash Card nor the Client shall use, divulge, or grant
any third party access to, any such information, except: (i) as permitted under the
Global Cash Card Privacy Policy Statement (asdefined below) or the Client
Privacy Statement, respectively, or (ii) as may be required by law.
5.2. Global Cash Card Privacy Policy Statement. Global Cash Card has approved
and adopted a privacy policy statement, which is maintained and documented on
the Global Cash Card Web Site (which may . be accessed at
http://www,globalcashcard.com) (the "Global Cash Card Privacy Policy
Statement"), and, in the course of performing its obligations under this
Agreement, Global Cash Card shall at all times comply with the Global Cash Card
Privacy Policy Statement.
6. CONFIDENTIALITY; NON -COMPETITION.
6.1. Confidentiality. Global Cash Card and the Client shall not, during the
performance of this Agreement, or at any time after the termination or expiration
hereof, sell or disclose to any third party, other than as may be required in the
performance of their duties and obligations hereunder or as may be required by
law, the terms of this Agreement or any of the procedures, practices or
confidential dealings of and between each other.
6.3. Survival. The covenants and agreements set forth shall survive the
consummation of the transactions contemplated by this Agreement.
7. TERMS AND TERMINATION
7.1. Term. The initial term of this Agreement will be for one year commencing on the
date first set forth above (the Effective Date"). Thereafter, this Agreement shall
automatically renew, unless and until either party hereto. provides the other party
written notice of non -renewal ninety -days (90) before the annual renewal date, for
consecutive, one year terms until the fifth anniversary of the Effective Date, at
which time this Agreement will terminate. .
7.2. Termination. This Agreement may be terminated in any of the following
manners:
7.2.1. Mutual Termination. This Agreement may be terminated at any time by
either party upon ninety (90) days written notice.
7.2.2. Termination by Non -Renewal. This Agreement may be terminated by
either party by written notice of non -renewal in accordance with the
provisions of 7.1 hereof.
7.2.3. Other
If at any time GLOBAL CASH Card's membership in, participation in or
access to a network is terminated without
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PAYROLL CARD SERVICES AGREEMENT 03/03/2009
notice, GLOBAL CASH CARD may terminate this Agreement with respect
to that network without notice.
• If at any time GLOBAL CASH CARD's issuing bank or banks terminates
its relationship and or sponsorship, GLOBAL CASH CARD may terminate
this Agreement upon written notice.
7.2.4. Event of Default. If any one or more of the following events (each, an
"Event of Default") shall occur and be continuing:
• The failure of a party to remit any payment required by this Agreement, for
longer than ten (10) business days after written formal notification;
• The failure of a party to observe or perform, in any material respect any
other of the covenants, obligations or agreements set forth in this
Agreement, which failure is not cured within thirty (30) days after the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given;
A decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a trustee, conservator, receiver, or
liquidator in any insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings, or for the winding -up or liquidation of
its affairs, shall have been entered against party hereto and such decree
or order shall have remained in force, un-discharged or un-stayed for a
period of sixty -days (60);
• The consent by a party to the appointment of a conservator or receiver or
liquidator in any insolvency readjustment of debt marshaling of assets and
liabilities or similar proceedings relating to all or substantially all of such
party's property; or
• A party admits in writing its inability to pay its debts as they become due,
file a petition to take advantage of any applicable insolvency or
reorganization or statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations.
Then, and in each and every such case, so long as an Event of Default shall
not have been remedied, the non -defaulting party, by notice in writing to the
party in default, may, in addition to whatever rights the non -defaulting party
may have at law or equity to damages, including injunctive relief and specific
performance, terminate this Agreement.
8. Unwinding Relationship. Upon termination of this Agreement, the parties shall
cooperate with each other to facilitate the termination of their relationship under this
Agreement. Without limiting the generality of the foregoing, the parties shall cooperate to
notify the Cardholders and any other third parties concerning which the parties hereto
may mutually agree, In the event that this Agreement is terminated pursuant to an Event
of Default, then the party in default shall bear the cost of any conversion or other
expenses related to such termination.
PAYROLL CARD SERVICES AGREEMENT 03/03/2009
9. DISPUTES
9.1. Duty to Notify. In the event of any dispute, controversy, or claim arising out of or
relating to this Agreement or the construction, interpretation, performance,
breach, termination, enforceability or validity thereof (hereinafter, a "Dispute"), the
party raising such Dispute shall notify the other within thirty -days (30) from the
date of its discovery of the Dispute.
9.2. Cooperation to Resolve Disputes. The parties shall cooperate and attempt in
good faith to resolve any Dispute promptly by negotiating between persons who
have authority to settle the Dispute and who are at a higher level of management
than the persons with direct responsibility for administration and performance of
the provisions or obligations of this Agreement that are the subject of the Dispute.
9.3. Arbitration. Any Dispute which cannot otherwise be resolved as provided in 9.2
shall be resolved by arbitration conducted in accordance with the commercial
arbitration rules of the American Arbitration Association ("AAA") and judgment
upon the award rendered by the arbitration tribunal may be entered in any court
having jurisdiction thereof. The arbitration tribunal shall consist of a single
arbitrator mutually agreed by the parties, or in the absence of such agreement
within thirty -days (30) from the first referral of the dispute to the AAA, designated
by the AAA. The place of arbitration shall be Fort Collins, Colorado, unless the
parties shall have agreed to another location within fifteen -days (15) from the first
referral of the dispute to the AAA. The arbitration award shall be final and
binding. The parties waive any right to appeal the arbitration award; to the extent
a right to appeal may be lawfully waived. Each party retains the right to seek
judicial assistance: (i) to compel arbitration; (ii) to obtain interim measures of
protection prior to or pending arbitrations; (iii) to seek injunctive relief in the courts
of any jurisdiction as may be necessary and appropriate to protect the
unauthorized disclosure of its proprietary or confidential information, and (iv) to
enforce any decision of the arbitrator, including the final award.
9.4. Confidentiality. The arbitration proceedings contemplated by this Section shall
be as confidential and private as permitted by law. To that end, the parties shall
not disclose the existence, content or results of any proceedings conducted in
accordance with this Section, and materials submitted in connection with such
proceedings shall not be admissible in any other proceeding, provided, however,
that this confidentiality provision shall not prevent a petition to vacate or enforce
an arbitral award, and shall not bar disclosures required by any laws or
regulations.
10. LIMITATION OF LIABILITY; INDEMNIFICATION
10.2. Indemnifications. Global Cash Card shall indemnify and hold harmless Client,
its directors, officers, and employees against any loss, liability or expense
incurred in connection with any actions, proceedings or investigations (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ) arising out
PAYROLL CARD SERVICES AGREEMENT 03/03/2009
of the indemnifying party's failure to perform its obligations under this Agreement,
other than any loss, liability or expense incurred, in part or in whole, by reason of
the indemnified party's willful misfeasance, bad faith or gross negligence in the
performance of its duties hereunder or by reason of the indemnified party's
reckless disregard of its obligations or duties hereunder. Notwithstanding the
foregoing, neither party shall be responsible under this indemnification for
consequential, incidental, special or punitive damages, even if the indemnifying
party had prior knowledge of the possibility of the same.
11. MISCELLANEOUS
Warranties; Limitation on Liability. GLOBAL CASH CARD MAKES NO
WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES,
PRODUCTS OR EQUIPMENT PROVIDED HEREUNDER, INCLUDING, AND WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. GLOBAL CASH CARD'S SOLE RESPONSIBILITY TO THE CLIENT AND THE
CARDHOLDERS SHALL BE TO MAKE THE SERVICE AVAILABLE IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT AND THE CARDHOLDER AGREEMENT. IN NO EVENT
SHALL GLOBAL CASH CARD BE LIABLE TO THE CLIENT, FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF GLOBAL CASH CARD HAD PRIOR
KNOWLEDGE OF THE POSSIBILITY OF SAME.
11.2. Force Majeure. Neither party hereto shall be liable for any failure to perform its
obligations under this Agreement due to: (i) acts of God, such as fires, floods,
electrical storms, unusually severe weather and natural catastrophes; (ii) civil
disturbances such as strikes and riots; (iii) acts of aggression, direct or
consequential, such as explosions, wars, and terrorism; (iv) failure of any third
party service providers to adequately provide such services, including, without
limitation ATM network services, the Bank's services, telecommunication
services, and merchant POS services; (v) failures or fluctuations in electric power,
heat, light, air conditioning, computer or telecommunications services or
equipment; and (vi) acts of government, including, without limitation, the actions
of regulatory bodies which significantly inhibit or prohibit either party from
performing their obligations under this Agreement (each, a "Force Majeure"). In
such event, the performance of such party's obligations shall be suspended
during the period of existence of such force Majeure and the period reasonably
required thereafter resuming the performance of the obligation. The parties shall
use their best reasonable efforts to minimize the consequences of the Force
Majeure.
11.3. Governing Law. This Agreement shall be construed in accordance with the laws
of the State of Colorado and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws without regard to
conflicts of law or choice of law principles.
PAYROLL CARD SERVICES AGREEMENT 03/03/2009