Exhibit 4.4
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "Agreement") is between First National Bank of
Omaha (hereinafter "Bank") and First National Credit Card Center, Inc.
(hereinafter "FNCCC") who agree as follows:
1. SERVICES. FNCCC agrees to provide services as described in schedules as
mutually agreed and attached from time to time (hereinafter "Services").
FNCCC shall: (i) comply with all applicable association, local, state, and
federal laws, ordinances, rules, regulations and codes ("Requirements of
Law") in the performance of the Services; (ii) obtain any applicable
federal, state, local or association licenses required to provide Services;
(iii) comply with all policies and procedures of Bank relating to the
operation of Bank's credit card business, including, without limitation,
the policies and procedures for determining the creditworthiness of credit
card customers, the extension of credit to credit card customers, debt
deferral and cancellation programs, and relating to the maintenance of
credit card accounts and the collection of credit card receivables, as such
policies and procedures may be amended from time to time; and (iv) provide
Services in a manner that will comply with the cardmember agreements and
other disclosures provided in connection with the credit card accounts
serviced hereunder. FNCCC is solely responsible for its own costs and
expenses of performance hereunder except as otherwise set forth. FNCCC
shall be solely responsible for the acts and omissions of its employees and
shall have sole responsibility for their supervision, direction and
control. Bank shall provide FNCCC with access to such books, records,
systems and information as may be necessary to enable FNCCC to provide the
Services. Any such books, records, systems and information shall constitute
Bank's confidential information and shall be subject to Section 4. All such
books, records, systems and information shall be returned to Bank
immediately upon request or termination of this Agreement, whichever occurs
first.
2. COMPENSATION. Bank shall compensate FNCCC for Services rendered in
accordance with any attached schedules or as otherwise mutually agreed from
time to time. In addition to such compensation, Bank acknowledges and
agrees that it will be responsible for payment of all Direct-Billed
Expenses. "Direct-Billed Expenses" are expenses: (i) incurred by FNCCC to
vendors and services providers for products and services which are
reasonably identified as having been provided for the direct benefit of
Bank (e.g., mailing costs which are identified as having been provided for
a mailing of Bank's solicitations); and (ii) in excess of a de minimis
dollar threshold established by FNCCC from time to time. In the event that
expenses are incurred that do not qualify as Direct-Billed Expenses, Bank
agrees that such expenses may be allocated to Bank based on the Allocation
on the attached schedule which is relevant to the functional service area
for which the expense was incurred. Direct-Billed Expenses shall be
documented in invoices from the vendor or service provider which are
rendered to the Bank or FNCCC and made available to Bank. FNCCC shall be
responsible for satisfying such invoice approval requirements as Bank may
establish from time to time for Direct-Billed Expenses. Direct-Billed
expenses will be paid by Bank directly to the relevant vendor or service
provider.
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3. TERMINATION. This Agreement shall be effective from the date set forth
below until terminated by either party. Either party may terminate this
Agreement with or without cause on thirty (30) days notice; provided,
however, that this Agreement may be terminated effective upon actual
receipt of notice in the event of a material breach by the other party.
Notwithstanding any such notice of termination, this Agreement shall, to
the extent required by Bank, remain in effect for a reasonable time to
allow an orderly transition to a successor servicer. FNCCC shall provide
such transitional or conversion services as Bank may reasonably request in
connection with any such transition.
4. PRIVACY.
(a) Each party shall hold in confidence all confidential information of the
other that it may obtain during the term of this Agreement. Each party
agrees to use the confidential information of the other only for the
purposes of providing or receiving Services pursuant to this Agreement, and
each party agrees that it will not disclose such confidential information
to any other person without prior written consent, except that such
confidential information may be disclosed: (x) to employees, auditors,
regulators, affiliates and professional advisors who have a need to know
such information; and (y) as necessary to perform the Services.
Confidential information shall not include information that: (i) was
already in the possession of the recipient prior to disclosure by the
disclosing party; (ii) is or subsequently becomes a part of the public
domain through no fault of the recipient; (iii) is subsequently disclosed
to the recipient by a third party not under any confidentiality obligation
to the disclosing party; or (iv) is independently developed by the
recipient. None of the foregoing shall be deemed to prohibit any
disclosures required by applicable laws, rules, regulations, court orders
or subpoenas.
(b) For purposes of this subsection (b), the following definitions apply:
"Consumer" means an individual who has obtained or applied for a product or
service from a party for personal, family or household purposes ("Consumer"
includes an individual's legal representatives); "Nonpublic Personal
Information" means any information from or about Consumers that: (i)
relates to any Consumer; (ii) relates to, or derives from, any transaction
between a party and any Consumer; or (iii) is a list, description or other
grouping of Consumers (Nonpublic Personal Information includes, but is not
limited to, application, account and transaction information, Consumer
names and addresses, consumer report information or information derived
therefrom, and the mere fact that an individual is or was a customer). To
the extent a party receives Nonpublic Personal Information, it: (1) shall
use Nonpublic Personal Information solely for the purpose of providing
Services under the Agreement; (2) shall not sell, rent, lease or otherwise
directly or indirectly disclose Nonpublic Personal Information to any third
party except as required by applicable law or regulation (including, but
not limited to, disclosures to regulators in connection with examinations);
(3) shall take all reasonable steps to protect the confidentiality of
Nonpublic Personal Information; and (4) shall give access to Nonpublic
Personal Information only to those employees, officers or agents who have a
need to know in connection with
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the performance of its obligations under the Agreement. The recipient
agrees to implement a comprehensive written information security program
that includes appropriate administrative, technical and physical safeguards
to: (A) ensure the safety and confidentiality of Nonpublic Personal
Information; (B) protect against unauthorized access to and use of
Nonpublic Personal Information; (C) protect against anticipated threats or
hazards to the security or integrity of Nonpublic Personal Information; and
(D) properly dispose of Nonpublic Personal Information. FNCCC's information
security program shall be at least as protective as Bank's. The recipient
further agrees to cooperate in the discloser's monitoring of the
recipient's compliance with the foregoing obligations as reasonably
requested from time to time. The recipient agrees to notify the discloser
of any unauthorized disclosure of Confidential Information, or any breach,
or attempted breach, of its security related to areas, locations or
computer systems which contain any Nonpublic Personal Information.
(c) To the extent applicable, FNCCC agrees to comply with any rules and
regulations of VISA, MasterCard and other relevant card associations
related to protecting any information concerning Consumers, including, but
not limited to, the Payment Card Industry Data Security Standard. FNCCC and
its relevant agents and subcontractors must obtain and maintain all
required registrations with, and successfully complete all compliance
audits and assessments required by VISA, MasterCard and other relevant card
associations.
(d) The terms of this Section 4 shall survive the termination of this
Agreement.
5. RELATIONSHIP OF PARTIES. The relationship of the parties hereunder shall be
that of independent contractors. Except as provided in Section 8 or any
Schedule, neither party shall be deemed an employee, agent, joint venturer,
or partner of the other and neither party shall have the power or authority
to bind or obligate the other.
6. AUDIT. Bank, its designees and its regulators shall have reasonable access
to and the right to audit, inspect and copy the books and records of FNCCC
(including, but not limited to, audits, test results, reports and similar
materials that FNCCC might prepare or have prepared for itself from time to
time) and the right to make such inquiries of FNCCC's personnel and to
visit FNCCC's facilities as Bank may reasonably require from time to time
in order to comply with legal requirements, to handle litigation, disputes
and customer inquiries, to confirm that appropriate security, internal
control and business continuity programs are in place, and to verify
FNCCC's compliance with the Agreement. Bank shall also have those rights to
monitor the performance of FNCCC as may be reasonably required to confirm
FNCCC's compliance with the Agreement. To the extent that FNCCC
subcontracts any part of its responsibilities under the Agreement, FNCCC
shall assure that Bank has the rights set forth in this paragraph with
respect to such agents and subcontractors. FNCCC agrees to cooperate as
reasonably requested by Bank in facilitating any monitoring or audit
required by this paragraph.
7. MISCELLANEOUS. This Agreement: (a) shall be governed by and construed in
accordance with the laws of the state of Nebraska; (b) may be amended only
in writing signed by
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both parties; (c) shall be binding upon and inure to the benefit of the
parties' successors and permitted assigns; and (d) is the complete and
exclusive statement of the agreement between the parties relating to the
subject matter hereof, which supersedes and merges all prior proposals,
understandings, and agreements, oral or written, between the parties
relating to the subject matter hereof. No waiver or modification of the
terms hereof shall be binding unless in writing signed by the waiving
party. No waiver of any provision hereof at any time shall operate as a
waiver of any other provision or as a waiver of any subsequent breach of
the same provision. The invalidity or unenforceability of any provision
hereof shall not affect the validity or enforceability of the remaining
provisions, all of which shall continue in full force and effect.
8. CONSUMER REPORTS. The parties agree that when Bank requests FNCCC to be
involved in a decision that gives rise to a permissible purpose to obtain
consumer reports, as defined under the Fair Credit Reporting Act, Services
provided by FNCCC may include assistance in obtaining those consumer
reports (including, but not limited to, prescreening results).
Notwithstanding anything to the contrary elsewhere in this Agreement, the
parties agree that FNCCC will be acting solely as the agent of Bank in
receiving such consumer reports.
9. PROPRIETARY RIGHTS. Nothing herein shall be deemed to grant any party any
right, title, license, leasehold right or other interest in or to the
books, records, systems, information. hardware, software, intellectual
property, documentation, processes, facilities or services provided to it
by the other in connection with this Agreement, including, without
limitation, any special programs, functionalities, systems, interfaces or
floor space or other resources that are made available hereunder or used to
provide or receive Services or work product hereunder. The terms of this
Section 9 shall survive the termination of this Agreement.
10. SOFTWARE. Any software and its associated documentation that is made
available by one party to the other in connection with this Agreement
(referred to collectively as "Software") is provided under the following
terms. Software is provided solely for non-exclusive, non-transferable,
internal use during the term hereof and solely for the purpose of
facilitating the provision or receipt of Services under this Agreement.
Neither party shall copy, decompile, reverse engineer or modify the
Software and each party shall return the same (and all copies) to the other
on termination. Title and all proprietary and other rights in the Software
and any modifications or copies thereof shall at all times remain with the
owner. The Software may contain trade secrets and each party agrees to
maintain the confidentiality thereof and not to disclose or otherwise make
the Software available to any third party without the owner's prior written
consent. Software provided under a separate license agreement shall be
subject to and governed by such agreement, and the recipient agrees to
comply therewith.
11. INTELLECTUAL PROPERTY. Each party shall be the sole and exclusive owner of
all copyrights, patents, trade secrets, or other intellectual property
rights associated with any ideas, works of authorship, including, but not
limited to, computer software and documentation, and other work product
developed or created by it or its personnel during the course hereof
(collectively, the "Work Product"). Such Work Product shall not be
considered a work made for hire within the meaning of Title 17 of the
United States Code. Each party and its personnel shall now and in the
future be free to use and employ
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its and their general skills, know-how, and expertise, and to use, disclose
and employ any generalized ideas and concepts learned during the course of
any assignment, so long as it or they acquire and employ such information
without disclosure of any confidential or proprietary information of the
other.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement intending it to be
effective as of January 1, 2007.
FIRST NATIONAL BANK OF OMAHA
BY:
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TITLE:
---------------------------------
DATE:
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FIRST NATIONAL CREDIT CARD CENTER, INC.
BY:
------------------------------------
TITLE:
---------------------------------
DATE:
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SCHEDULE A TO SERVICES AGREEMENT
FNCCC shall provide Services within the following functional areas as required
by Bank. FNCCC shall not provide Services to any third party other than
InfiBank, N.A. and First National Bank of Omaha. Services shall be comprehensive
within each functional area, it being intended that FNCCC will, to the extent
required by Bank, provide all Services necessary for the operation of Bank's:
(i) credit card issuing business as currently conducted and as hereinafter
modified by Bank (including, but not limited to, proprietary and co-branded card
activities, Services necessary to permit Bank to fulfill its agent bank,
alliance and custom partner agreement responsibilities, and Services necessary
to permit Bank to fulfill Bank's responsibilities under various account owner,
successor servicer and backup servicer commitments); and (ii) debit, ATM, and
prepaid card business, but only to the extent services are requested in selected
areas such as fraud monitoring and embossing; and (iii) retail and online
banking business, but only to the extent services are requested in selected
areas such as customer service and ARU. All Services shall include the provision
of standard and ad hoc reports as Bank may require from time to time, as well as
relevant management and supervisory oversight, consultative support, planning,
product development, risk management, and business-level compliance activities
that are necessary or appropriate within each functional area. Services do not
include the activities that may only be conducted by a bank or other services
that Bank elects to perform for itself. Nothing herein shall be deemed to
constitute an assignment and assumption of Bank's rights or responsibilities
under any separate agreement.
SERVICE COST PER UNIT
------- ---- --------
ADMINISTRATION
Provision of executive and managerial resources $0.53 Per Live Account
for credit card issuing activities, finance
services (including, but not limited to,
financial reporting and analysis), and legal
services.
MARKETING
Acquisition campaign development and $4.03 (Consumer) Per App
implementation, partnership acquisition and Processed
partner relationship management, marketing
analytics and retention and activation campaign $10.27 (Comm'l) Per App
management Processed
Retention and activation campaign development, $0.18 Per Billed
yield management, fee income program management, Account
rewards program management and product research
and development
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SERVICE COST PER UNIT
------- ---- --------
CREDIT
Application processing and decisioning in $3.00 (Consumer) Per App
accordance with Bank's credit policies and Processed
procedures relevant to credit card issuing.
Exceptions will be allowed solely in accordance $5.25 (Commercial) Per App
with written guidelines approved by Bank. Processed
Credit Maintenance (in accordance with Bank's $0.19 (Consumer) Per Live Account
credit policies and procedures relevant to credit
card issuing; exceptions will be allowed solely $0.43 (Commercial) Per Live Account
in accordance with written guidelines approved by
Bank), Credit DSS, Risk Management, and Risk
Policy
COLLECTIONS
All services necessary to collect receivables $4.56 (1+ Cycle) Per Delinquent
generated on Bank's credit card accounts. Account
Waivers and modifications will be allowed solely
in accordance with written guidelines approved by $33.69 (3+ Cycle) Per Delinquent
Bank. Notwithstanding anything to the contrary Account
in Section 5 of the Agreement, FNCCC may, if
necessary, represent to a debtor that it has
authority to grant any waiver or exception
offered to a debtor in a collection settlement,
provided such waiver or exception is in
compliance with Bank's written guidelines.
Except as otherwise directed by Bank,
post-charge-off collections will generally be
handled by a separate collection agency rather
than by FNCCC.
General Collections Management and Fraud $0.12 Per Live Account
Investigations
Post-charge-off recovery management $0.11 Per Charged-Off
Account in
Inventory
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SERVICE COST PER UNIT
------- ---- --------
Fraud monitoring $0.02 (Credit Card) Per Gross
Transaction
$0.03 (Debit Card) Per Open Account
Collections support for 'liquidation business' $94,000 Per Month
(for dedicated centers;
work outside dedicated
centers at cost)
OPERATIONS
Embossing $0.72 Per Card Issued
Dispute and Chargeback Processing $0.035 Per Gross
Transaction
Other operational support necessary to $0.16 Per Billed
administer, maintain and process Bank's credit Account
card accounts, including the provision of notices
and disclosures approved by Bank, the
implementation of changes in terms as approved by
Bank from time to time, accounting, settlement,
payment exception processing, electronic payment
processing, and records management
TBS letter generation $0.05 Per Billed
Account
Operational support for 'liquidation business' $66,000 Per Month
(for dedicated centers;
work outside dedicated
centers at cost)
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SERVICE COST PER UNIT
------- ---- --------
CONTACT CENTERS
Customer service and ARU $5.63 Per Rep-Handled
Call
Telemarketing $35.00 Per Hour
CUSTOM PARTNER SOLUTIONS
Marketing support and management for custom $23,000 Per Month
partners
(based on the
current
estimate of
FNBO's % of the
total FNCCC
time and
expenses
incurred in
this area)
TECHNOLOGY
Services as requested from technology personnel $0.00 Per Month
resident in FNCCC's Atlanta office, including
systems development and DSS support. (based on the
current
estimate of
FNBO's % of the
total FNCCC
time and
expenses
incurred in
this area)
PROGRAMMING AND TECHNICAL SUPPORT FOR AREAS OTHER $80.00 Per Hour
THAN CREDIT CARD AS REQUESTED.
Services provided by FNCCC shall be provided at its actual cost, without markup.
Payment shall be due upon invoicing. FNCCC's actual cost shall include all
expenses incurred by FNCCC in order to operate its business and provide the
Services to Bank, including, but not limited to, intercompany charges for
services that are provided to FNCCC by its affiliates. Costs Per Unit referenced
above will be used for initial monthly invoicing by FNCCC. In the event that
FNCCC's actual costs are greater or less than the estimates upon which the above
Costs Per Unit were based, FNCCC may periodically:
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(1) issue a lump sum invoice to apply an incremental adjustment reflecting
difference between actual costs and invoiced costs for units previously
billed; and/or
(2) apply revised Costs Per Unit in future invoices, to the extent necessary to
reflect actual costs.
Per Unit Definitions:
STATISTIC DEFINITION
--------- ----------
1+ Cycle Delinquent Includes accounts 5-179 days delinquent as of their cycle date.
Includes pending charge off accounts.
3+ Cycle Delinquent See definition above. These are 60-179 days delinquent as of
cycle date.
Card Issued Includes cards embossed and sent to customer for any reason
including new accounts, normal reissue, miscellaneous replacement.
Live Account Includes credit card accounts managed by the Issuer at month end.
Includes accounts that are closed to new changes but which are
revolving a balance. Excludes charged-off and closed accounts.
Rep-Handled Call Includes calls handled by a rep regardless of whether the caller
opted out of the VRU first or not.
Billed Account Includes accounts that either had a beginning balance, an ending
balance or a transaction (purchase, cash advance, payment) except
if the beginning or ending balance is between ($.99) and a +$.99
and the account had no transaction. Excludes accounts charged off
in prior months but not in current month.
App Processed Includes applications for new accounts whether auto or manually
decisioned or withdrawn. Includes approved and declined
applications decisioned in-
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STATISTIC DEFINITION
--------- ----------
house and by outside vendors. Excludes add on accounts for
existing commercial card customers.
Gross Transaction Includes purchase, cash advance, and balance transfer
transactions. It is not net of Purchase Returns.
Charged-Off Account in Inventory Includes all charged off accounts (for any reason, including, but
not limited to bad debt, fraud and bankruptcy) in the recovery
system platform.
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