Exhibit 10.12
[LOGO]
Direct Card Services, LLC. Approved Sales Program Agreement
THIS AGREEMENT dated January 5, 2004 ("Effective Date") is made by and
between Optimum Pay, Inc., a Delaware corporation, whose address is 00000 Xxx
Xxxxxx Xxxxxx, Xxxxxx, XX 00000 ("Service Provider" or "Service Provider"), and
Direct Card Services, LLC, ("Program Originator" or "Originator") a Limited
Liability Company corporation whose address is 00000 X. Xxxxxx Xx. Xxxxx 000,
Xxxxxxxx Xxxxxxx, XX 00000. Service Provider and Program Originator are herein
collectively referred to as the "Parties".
WHERAS, the Parties have entered into a Master Services Agreement dated
as of October 23, 2003 (the "Master Services Agreement") whereby Service
Provider has agreed to provide certain services, as set forth in the Master
Services Agreement (the "Services"), relating to the processing and settlement
of Stored Value Card ("SVC") transactions; and
WHEREAS, the Program Originator is also an Independent Sales
Organization ("ISO"), of the Service Provider; and
WHEREAS, the Program Originator wishes to market the Services to
prospective SVC cardholders and customers in a manner which targets Program
Originator's specific markets, customer needs, and solutions (the "Custom
Program"); and
WHEREAS, the Program Originator wishes to conduct such marketing of the
Custom Program by and through Independent Sales Agents or Independent Sales
Representatives (collectively "Marketers") in accordance with an Approved Sales
Program ("ASP") which is set forth on Attachment A hereto.
NOW, THEREFORE, in consideration of the foregoing, the terms, covenants
and conditions herein and other valuable considerations; the Service Provider
and Program Originator agree as follows:
1.) Definitions. Terms not defined herein shall have the same meaning as set
forth in the Master Services Agreement.
"Bankcard Processing Provider" means the entity which handles
the processing of all SVC transactions.
"Customer" means an entity which enters into an agreement with
the Program Originator for the Custom Program.
"Issuing Bank" means the bank which issues the SVC.
2.) Intellectual Property.
The SVC, and any and all intellectual property or proprietary information
related thereto, is and shall be, owned by the Service Provider and/or its
service sub-contractors for the term of this Agreement and thereafter.
Program Originator is the owner of the Custom Program and has the
authority to seek compensation from Marketers of the Service Provider for
the use of the ASP.
3.) Term and Termination.
a.) The term of this Agreement shall commence as of the date
hereof and shall continue until terminated as set forth
herein. Either party may terminate this Agreement at any time
upon ninety (90) days prior written notice to the other party.
b.) The relationship between the parties and any existing
Customers or Cardholders shall be governed by the terms and
conditions of the Cardholder Agreement and/or any other
agreement that exists with a Customer or Cardholder. Any
termination of this Agreement shall not effect the rights of
any existing Customers or Cardholders and the Parties hereto
agree to continue to perform their obligations hereunder with
respect to Customers or Cardholders existing at the time of
termination. This obligation shall continue until the Custom
Program is terminated unless otherwise agreed to in writing by
the Parties.
4.) Approved Sales Program.
Program Originator shall set forth on Attachment A, which is attached
hereto and incorporated herein, its sales and marketing methodology for
executing the Custom Program and the sales process which shall be followed
when executing the ASP. The ASP shall detail Program Originator's
responsibilities in marketing and implementing the Custom Program and
shall set forth the following, which list is not meant to be exclusive:
a.) The ideal or target market for the Custom Program.
b.) The process through which Program Originator or an ISA shall
compile Cardholder information and transfer such information
to the Service Provider for the issuance of the SVCs.
c.) The process which will ensure that the rights, privacy, and
other personal information of the Cardholders are preserved.
d.) The standards for customer support and identify who is
responsible for maintaining appropriate levels of Tier 1,
customer support for the Custom Program.
e.) The manner in which and when a Marketer, for the purpose of
making a sale, may identify the Service Provider, Program
Originator, Bankcard Processing Provider, or the Issuing Bank.
f.) The process that Marketers shall follow when obtaining binding
commitments from Customers enrolling in the Custom Program and
for how those commitments are recorded and verified by Program
Originator and/or Service Provider.
g.) Provide copies of the marketing materials (telephone scripts,
brochures, web sites, etc.) that will be provided to Marketers
for their use in selling the Custom Program for approval by
the Issuing Bank and the Bankcard Processing Provider.
h.) Provide a complete copy of the Cardholder Agreement,
containing the Terms and Conditions that a Cardholder must
consent to before activating his or her SVC, and copies of all
other documents provided to a Cardholder for approval by the
Issuing Bank and the Bankcard Processing Provider.
i.) A schedule of the pricing and the fees of the Custom Program,
which shall match those set forth in the Cardholder Agreement,
that identifies which parties shall be responsible for the
collection and distribution of those fees.
j.) Provide a direct deposit account at a designated bank for the
settlement of fees due to the Program Originator and the
Program Originator's portion of refunds due the cardholder.
5.) Fees.
(a) Implementation Fee. Program Originator shall pay to
Service Provider an implementation fee of $10,000. For each additional
ASP, the implementation fee will be negotiated. Program Originator
shall remit payment to Service Provider upon execution of this ASP
Agreement.
(b) Issuance Fees. The initial issuance fee charged by the
Marketer, as set forth in the ASP, shall be non-refundable except when (i)
it is determined that the individual who applied to be a Cardholder is not
the correct person or entity represented as the Cardholder; or (ii) the
jurisdiction in which the Cardholder resides requires a different refund
policy or requirement.
(c) Other Fees. All other fees that are to be charged under
the Custom Program are set forth in the ASP and shall be collected and
distributed according to the schedule therein. The monthly maintenance fee
as set forth in the ASP, Attachment "A" is charged per card/per month
after the card is active and or funded. Service reserves the right to
increase fees, upon 30 days notice.
6.) Initial Order. Program Originator shall have a minimum of [5000] funded
and active cards in its initial order under the Program, which must be
placed within 10 (ten) days of the completed program (completed program
meaning that Cards can be shipped and activated for cardholder usage).
Service Provider will invoice Program Originator for 5000 cards at an
issuance price of $5.40 per card to be paid within 10 business days
from Invoice Date.
7.) Pre-Payment. Program Originator shall pre-pay in advance U.S.
$15,000.00 dollars on future revenue transaction minimum based on
$5,000 minimum transaction revenue per month for 3 (three) months. In
the event that Program Originator has less than [$5,000] minimum
transaction revenue for a particular month with the first 3 months,
Program Originator shall pay Service Provider the difference from the
advance pre-payment. Service Provider will issue an Invoice for the
Pre-payment upon completing the program and payment will be due within
30 days from Invoice Date. Once this requirement is met, Program
Originator may add cardholders in any quantity. At the end of the six
(6) months any remaining Pre-Payment reserve shall be refunded to
Program Originator within ten (10) days from the Service Provider.
8.) Solicitation of Services.
During the term of this Agreement, Service Provider shall not market or
sell any other services to any Customer or Cardholder without Program
Originator's written consent and Program Originator shall not market or
sell any other services to any Customer or Cardholder without the
written consent of the Service Provider and of the Marketer responsible
for the particular Customer or Cardholder.
9.) Program Monitoring.
Service Provider, or its representatives, at Service Provider's sole
cost and expense, shall have the right, at any time, to monitor Program
Originator's and/or any Marketer's sales and marketing methodology in
the implementation of the ASP.
In the event that Service Provider determines, or has reason to
believe, that Program Originator or any Marketer has committed any
fraudulent acts with respect to any Cardholder and/or the operation of
the SVC, Service Provider shall have the right to review past records
of any and all SVC transactions to determine if any Cardholder is due a
refund. Each Party hereto and any Marketer shall be responsible for the
reimbursement of any fees that it collected as a result of the
fraudulent act.
10.) Service Provider Responsibilities.
(a) Approvals. The Service Provider, in cooperation with
Program Originator, shall use commercially reasonable efforts to obtain
approval of the ASP from the Issuing Bank and the Bankcard Processing
Provider and to obtain the qualification of each Cardholder from the
Issuing Bank. If the Issuing Bank does not approve the ASP, Service
Provider shall use commercially reasonable efforts to work with Program
Originator and the Issuing Bank and the Bankcard Processing Provider to
amend the ASP to obtain the Issuing Bank's approval, provided however,
that in the event that the Issuing Bank should ultimately decide to not
approve the ASP this Agreement shall terminate immediately. In no event
shall Service Provider be held liable if the Issuing Bank does not
approve the ASP.
(b) ASP. Service Provider shall be responsible for those items
set forth in the ASP.
11.) Representations and Warranties.
(a) Program Originator represents and warrants that (i) it is
a [corporation] duly organized, validly existing, and in good standing
under the laws of the state of its [incorporation] and it has all
requisite power and authority to carry on its business as now being
conducted and is duly qualified and in good standing to do business in
all jurisdictions in which it conducts business; (ii) the execution and
delivery of this Agreement and the consummation of this Agreement has
been duly authorized by all necessary action on the part of Program
Originator, and further this Agreement has been duly executed and
delivered by Program Originator, and constitutes the legal, valid and
binding obligation of Program Originator enforceable against it in
accordance with its terms, (iii) it has the full right and power to
enter into this Agreement and to carry out its obligations hereunder;
and (iv) it is presently in compliance with all laws, rules and
regulations applicable thereto, and is not presently subject to any
sanctions, claims or legal actions.
(b) Service Provider represents and warrants that (i) it is a
corporation duly organized, validly existing, and in good standing
under the laws of the state of its incorporation and it has all
requisite power and authority to carry on its business as now being
conducted and is duly qualified and in good standing to do business in
all jurisdictions in which it conducts business; (ii) the execution and
delivery of this Agreement and the consummation of this Agreement has
been duly authorized by all necessary action on the part of Service
Provider, and further this Agreement has been duly executed and
delivered by Service Provider, and constitutes the legal, valid and
binding obligation of Service Provider enforceable against it in
accordance with its terms, (iii) it has the full right and power to
enter into this Agreement and to carry out its obligations hereunder;
and (iv) it is presently in compliance with all laws, rules and
regulations applicable thereto, and is not presently subject to any
sanctions, claims or legal actions.
12.) Communications.
Neither Program Originator nor any Marketer shall not contact the
Issuing Bank or the Bankcard Processing Provider or any of their
affiliates or related entities without Service Provider's prior written
consent. A breach of this covenant shall be deemed a material breach of
the Agreement and may, at Service Provider's sole discretion, result in
the immediate termination of this Agreement.
13.) Non-exclusive.
This shall not be an exclusive Agreement to Program Originator, and
Service Provider shall have the right and ability to enter into similar
or substantially similar card offers with other entities for the
distribution of Service Provider SVC services.
14.) Relationship of Parties.
This Agreement does not create a relation of principal and agent nor is
either party to be considered to be the agent or legal representative
of the other. Program Originator is not authorized to make any warranty
or representation on behalf of the Service Provider. It is expressly
understood that Program Originator and the Service Provider are in all
respects independent parties to a contract. Program Originator agrees
that it will not represent to any person that it is the agent of the
Service Provider, nor will it fail to correct any misunderstanding as
to status.
15.) Indemnification/Damages.
(a) By Program Originator. Program Originator shall indemnify,
defend and hold harmless Service Provider and each officer, director,
employee, insurer, successor, and assign thereof against any and all
losses, claims, damages, liabilities, costs and expenses (including
costs of defense of every kind whatsoever and the aggregate amount in
reasonable settlement of any action, suit, proceeding or claim) which
Service Provider may incur or for which Service Provider may become
liable on account of any claim, action or proceeding brought against
Service Provider claiming damages under any law, common law or
otherwise, to the extent that such claims, actions or proceedings,
whether in whole or in part, arise or are alleged to arise out of or by
reason of or in connection with, directly or indirectly, any action or
failure to act on the part of Program Originator, its employees or
agents.
(b) By Service Provider. Service Provider shall indemnify,
defend and hold harmless Program Originator and each officer, director,
employee, insurer, successor, and assign thereof against any and all
losses, claims, damages, liabilities, costs and expenses (including
costs of defense of every kind whatsoever and the aggregate amount in
reasonable settlement of any action, suit, proceeding or claim) which
Program Originator may incur or for which Program Originator may become
liable on account of any claim, action or proceeding brought against
Program Originator claiming damages under any law, common law or
otherwise, to the extent that such claims, actions or proceedings,
whether in whole or in part, arise or are alleged to arise out of or by
reason of or in connection with, directly or indirectly, any action or
failure to act on the part of Service Provider, its employees or
agents.
16.) Master Services Agreement.
All of the terms, conditions and covenants of the Master Services
Agreement are hereby incorporated by reference and in the event of any
conflict between the specific terms and conditions of this Agreement
and the terms and conditions of the Master Services Agreement, the
specific terms and conditions of this Agreement shall control.
17.) Governing Law.
This Agreement shall be interpreted, construed and enforced in all
respects in accordance with the laws of the State of California
(without regard to any principles of conflicts of laws thereof).
Jurisdiction and venue for any claim or cause of action arising under
this Agreement shall be exclusively in an appropriate state or federal
court located in the State of California.
IN WITNESS WHEREOF, the parties hereto have set their hands and seal the day and
year first above written.
Direct Card Services, LLC Optimum Pay, Inc.
by_____________________________________ by__________________________
Name:
Date _____________ Date_____________
ATTACHMENT A
1) Program Overview......................................................................................................8
A) ASSIGNING ISO "PROGRAM ORIGINATOR" INFORMATION.....................................................................8
B) ASSIGNED SUB-AGENT "MARKETER" INFORMATION..........................................................................8
C) PROGRAM INFO.......................................................................................................8
D) SALES PROCESS OVERVIEW.............................................................................................9
2) Marketing Methodology.................................................................................................9
A) MARKETING PLAN..........................................................................ERROR! BOOKMARK NOT DEFINED.
B) WRITTEN MATERIALS..................................................................................................9
C) WEB SITE CONTENT........................................................................ERROR! BOOKMARK NOT DEFINED.
3) Customer Service Documentation.......................................................................................11
A) CUSTOMER SERVICE PLAN.............................................................................................11
Customer Self Service (Tier 0 Support).....................................................Error! Bookmark not defined.
Tier 1 Support.......................................................................................................11
Tier 2 Support.......................................................................................................11
Tier 3 Support.......................................................................................................11
B) IVR SCRIPTS.......................................................................................................11
4) Card Issuance Documentation..........................................................................................11
A) TYPE OF CARD......................................................................................................11
B) CARD VOLUME AND DISTRIBUTION INFORMATION..........................................................................11
Initial Card Printing................................................................................................12
Weekly Volume........................................................................................................12
Card Distribution Method.............................................................................................12
Planned Program Ending.....................................................................Error! Bookmark not defined.
C) CARDHOLDER IDENTIFICATION PLAN....................................................................................12
D) PATRIOT ACT COMPLIANCE PROCEDURES.................................................................................12
E) APPROVED MATERIALS................................................................................................12
Card Carrier.........................................................................................................12
PIN Carrier..........................................................................................................12
Customer Terms and Conditions........................................................................................12
Card Art.............................................................................................................12
Customer Privacy Statement...........................................................................................13
Customer Pricing Schedule..................................................................Error! Bookmark not defined.
5) Settlement Process Documentation.....................................................................................13
A) BANK STRUCTURE / ACCOUNTS.........................................................................................13
Universal Card, Inc. Account.........................................................................................13
Universal Card, Inc. Accounts........................................................................................13
B) ACCOUNT FUNDING REQUIREMENT.............................................................ERROR! BOOKMARK NOT DEFINED.
C) PROGRAM SPECIFIC CARD FUNDING PROCEDURES................................................ERROR! BOOKMARK NOT DEFINED.
D) DIVISION OF FEES..................................................................................................14
1) Program Overview
Assigning ISO "Program Originator" Information
Company: Direct Card Services LLC
Address: 00000 X. Xxxxxx Xx.
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
E-mail: Xxxxx@xxxxxxxxxxxxxxxxxx.xxx
Assigned Sub-Agent "Marketer" Information
Legal Name of Co: Same as Above
Legal Owner or Parent Organization of Company:
Trade or Business Name ("DBA"):
Address:
Website:
Contact Name at Company:
Type of Business (manufacturing, service, etc.):
How long has organization existed?
Program Info
Card Name: DCS - Personal Advantage Media Card
Name Significance: Media Radio Card
Primary card recipients and relationship to Direct Card Services.: Co-brand
marketer of the Personal Advantage Media Card program
Mission / Goal: Provide 21st Century eFinance and eCommerce solutions for
clients. Committed to delivering its clients the best in new technology
solutions to increase its clients profits. Offer a simple and easy to use stored
value card to individuals through a marketing partnership with various radio
stations. Cardholders would be eligible to receive special offers and discounts
from the radio stations and their advertisers. By loading the card and making
purchases at the radio stations' advertisers, cardholders would receive the
discounts offered by those merchants.
Distribution Method / Process:
Sales Process Overview
Customers will be listening to the radio from either home, car, or work.
Customers will be invited to apply for the card by calling an 800 number. The
operator will take the customers' pertinent/required information and transmit it
to Optimum Pay for fulfillment.
Additionally:
Customers will be invited to apply for the card by filling out a form on a
secure website.
Customers will be able to apply for the card by filling out a form that includes
a pre-paid business reply envelope. The application will be mailed to
____________ for fulfillment.
2) Marketing Methodology
Marketing Plan
Cardholders will be individuals who listen to various radio stations. These
cardholders will match the demographics of the stations' audience profiles.
These radio stations' audiences tend to be younger (18 to 34) will most likely
have a high concentration of Latinos.
The primary marketing channel will be on-air announcements on various radio
stations. These announcements will ask listeners to call an 800 number to apply
for the card.
The radio station will pre-load a small number of cards and give them away to
listeners who call the station when invited to do so.
Listeners will also have the opportunity to apply for the card at a secure
website that is linked to the stations home website.
The radio station will send an email to their existing (opt-in) listener
database inviting listeners to apply for the card. The stations will also send a
direct mail solicitation to their listeners that includes an application
Written Materials
Radio Script(s): 1 - Pre-paid MasterCard Giveaway Script
Here's your chance to win your very own Pre-paid MasterCard from (station).
Pre-loaded with ($_____ It's the card you've been hearing about. The card
that can change your life. No more cash to carry around. No cash to pay
your bills. Buy gas or get groceries. Shop on-line. Get cash from an ATM
machine when you need it. Plus, discounts at your favorite stores. And this
special Pre-paid MasterCard with give you front of line privileges at clubs
and concerts and on-air prize giveaways.
Just be the tenth caller at (station phone #) and we'll send you out your very
own Pre-paid MasterCard from (station) pre-loaded with ($_________. Call now.
Radio Script(s): 2 - MasterCard Pre-paid Debit Card Promo
Here's an important announcement from (station). You no longer need
cash or purchases!
Now you can get your very own MasterCard... the Pre-Paid Cash Card from
MasterCard and from your friends at (station) No more cash to carry around.
No more cash to buy gas or groceries. Rent a car. Shop on-line. No more
money orders to pay your bills. And you can use your Pre-Paid MasterCard to
get cash at any participating ATM machine whenever you need it. . Plus,
your Pre-Paid MasterCard gives you many special privileges from
(station)...save money at stores where you like to shop...be first in line
to get concert tickets or win prizes. Special access to the best seats, win
prizes on-air and no more waiting in long lines at selected clubs.
Imagine... YOUR very own MasterCard....No hassles, no credit checks and all
the privileges and security of a MasterCard. It doesn't just look like a
MasterCard. It is a MasterCard
Your MasterCard works just like a pre-paid phone card. Cash your pay check
at a participating merchant or check cashing store, load it with as much
cash as you want and you're ready to go. No worries of added debt. Just
load the card with only the amount you want to put on it. When the card is
empty, just re-load it. Its so simple.
Sign up is easy too. To get your Pre-Paid MasterCard from (station), just
call 1-800-_______, that's 1-800-________ or visit the (station website).
You will receive your card in a matter of days. Imagine, no more bulky
cash. No more hassles with money orders. Special access to clubs, concerts
and on-air contests. Cash from an ATM machine when you need it. And all the
confidence and convenience of a MasterCard. Just call 1-800-_________ or
vist the (station website) to sign up today
In just days you can have real purchasing power, security, an ATM card and
special listener access to prizes, concerts and clubs...all from your
friends at (station ) and MasterCard. Call 1-800-_______ to sign up today.
That's 1-800-_________. 1-800-________.
800# Script -
THANKS FOR CALLING - NAME OF STATION OR PROGRAM MAY I HAVE YOUR NAME AND
ADDRESS?
MAY I HAVE YOUR SSN?
MAY I HAVE YOUR DATE OF BIRTH (MONTH, DAY, YEAR)?
MAY I HAVE YOUR TELEPHONE NUMBER (HOME AND OFFICE)?
MAY I HAVE YOUR E-MAIL ADDRESS? (OPTIONAL)
YOUR ORDER NUMBER IS - YOU SHOULD RECEIVE YOUR XX-XXXX MasterCard STORED
VALUE CARD IN THE MAIL IN 10 DAYS. CAN I HELP YOU WITH ANYTHING ELSE?
UPSELL PITCH - IF ANY
THANKS FOR CALLING!
(REFERENCE TO MASTERCARD IS OPTIONAL BUT SUGGESTED
Website Content
To be submitted by Direct Card Services, LLC, prior to approval process.
3) Customer Service Documentation
Customer Service Plan
Tier 1 Support
Accepting incoming call from Cardholders. This will be the only point of contact
with the Cardholder. Tier-1 will be operated by or outsourced by Service
Provider to provide support to Cardholders. Hours of operation will 24X7,
English and Spanish.
IVR Scripts
4) Card Issuance Documentation
Type of Card - Master Card Pin Based Debit Stored Value Card
Card Volume and Distribution Information -
====================================== ===============================
Projections # Active Cards
====================================== ===============================
Year 1 20,000
-------------------------------------- -------------------------------
Year 2 100,000
-------------------------------------- -------------------------------
Year 3 500,000
-------------------------------------- -------------------------------
Initial Card Printing - 5000 cards
Weekly Volume - 500 cards
Card Distribution Method - Customers will receive their cards via USPS within 5
to 7 business days after the acceptance of their application. From our embossing
facility contracted with either Personix or EFT source. The card will be sent
separately, and the PIN will be sent 3 to 5 days after the Card..
Planned Program Ending
Number of Cards - 500,000
Date - 2005
Cardholder Identification Plan
First and Last Name, U.S. Address (street, city, state, and zip), Social
Security #, DOB, telephone #. We will capture the information in XML format from
an FTP site, and conduct an ID verification with OFAC screening by third party
certified ID verifier (eg. Equifax).
Patriot Act Compliance Procedures
We will capture their First, and Last Name, Street Address, Social Security # or
Government I.D., Date of Birth, and home telephone #. Once the information is
captured, it will be screened for OFAC standards through a third party ID
verifier organization.
Approved Materials
Card Carrier
To be attached Direct Card Services, LLC MasterCard Card Carrier
PIN Carrier
To be attached Direct Card Services, LLC. MasterCard PIN Carrier Letter
Customer Terms and Conditions
To be attached Direct Card Services, LLC MasterCard Customer Terms and
Conditions
Card Art
For the initial issuance the stock MasterMoney Maestro will be used with
additional printing as shown here:
[CARD] [CARD]
Customer Privacy Statement
The following Privacy statement will appear on the self-service web site
associated with the card.
5) Settlement Process Documentation
Bank Structure / Accounts
Direct Card Services, LLC. Account
Depository Account: ONLY OPTIMUM PAY WILL HAVE ACCESS TO THE ACCOUNT : Program
Originator will be required to maintain an account with Xxxxx Fargo Bank to
provide the ability for immediate financial adjustments or transactions with
Service Provider as they relate to the program.
Direct Card Services, LLC. Accounts
Reserve Account: Service Provider will maintain an account for Program
Originator to cover the reserve required by the Issuing Bank for the cards
issued as a part of the program. This account must maintain a balance equal to a
minimum of 10 % of the total value outstanding on balance of SVCs that are a
part of the program. Should immediate funding of an SVC be needed as a feature
of the Custom Program, this account must also contain the amount of funds needed
to cover that immediate funding. Service Provider recommends a static balance
equal to 3 days of transactions. Service Provider will review the funding level
of this account as needed and will notify Program Originator of any additional
funding requirements for this account.
