This Partner/Customer Master Services Agreement (“Agreement”) is entered into by and between Partner, a on behalf of itself and its’ Affiliates (“Partner”) and Customer, on behalf itself and its’ Affiliates (“Customer”) (individually, a “Party” and collectively, the “Parties”) and is hereby incorporated by reference into the prepaid debit card agreement between the Parties.
1. Reserved.
2. Definitions.
2.1 Applicable Law: means with respect to any party, any U.S. federal, state, or local law, rule or regulation, ordinance, statute, treaty, judgment, or any official interpretation by a relevant government agency or court of competent jurisdiction relating to the Cards or the Program, the Parties, or the subject matter of this Agreement.
2.2 Affiliate: means with respect to a Party, any entity that is Controlling, Controlled by, or under common Control with such Party.
2.3 Association Marks: means the “Visa”, “Mastercard” and “Discover” service marks along with all other logos, trademarks and service marks owned by an Association.
2.4 Balance: means the dollar amount available in each Cardholder Account.
2.5 Card: means a prepaid product owned and issued by Bank, bearing Bank and Association marks and subject to Terms and Conditions.
2.6 Card Fee: means the Card fees described in the Terms and Conditions.
2.7 Card Collateral: means the Terms and Conditions, and any other documents, disclosures, and/or notices provided by PARTNER or Bank to Customer.
2.8 Cardholder: means a Person who receives a Card under the Program.
2.9 Cardholder Account: means a segregated pool of funds held at Bank accessible to Cardholder by using a Card as permitted by this Agreement and the Terms and Conditions.
2.10 Customer Funding Account: means a centralized pool of funds under the control of Bank funded through periodic deposits with Bank by to be used for funding Cardholder Accounts. The Funding Account is to be used at the option of
2.11 Customer Marks: means the Customer’s name, as well as any other logo, trademark, or service mark owned by Customer.
2.12 Confidential Information: means this Agreement’s terms, proprietary information belonging to a Party, including but not limited to, its marketing philosophies and objectives, promotional materials and efforts, financial results, technological developments, customer names, addresses, and other identification information, prepaid card account numbers, account information, and other similar confidential or proprietary information and materials.
2.13 Control: means the possession, directly or indirectly, of 50% or more of the voting power for the election of directors of any entity, or the power to direct or cause the direction of the management and policies of that entity, whether through ownership of voting rights, by contract, or otherwise.
2.14 Force Majeure Event: means any cause or event of any nature whatsoever beyond the reasonable control of a Party, including strikes, riots, earthquakes, epidemics, pandemics, terrorist actions, wars, fires, floods, weather, power failure, telecommunications outage, acts of God or other failures, interruptions or errors not directly caused by that Party.
2.15 Person: means any corporation, company, group, partnership, other entity, or individual.
2.16 Program Marks: means the registered and common law trademarks and service marks of Bank and PARTNER including their agents and subcontractors.
2.17 Subsidiary: means any corporation or other entity under the Control of a Party, either directly or through one or more of its Subsidiaries.
2.18 Term: means the Initial Term and each Renewal Term.
2.19 Terms and Conditions: the written agreement between Bank and the Cardholder that describes the Card features and terms of use, as may be modified by the Bank from time to time.
3. Term and Minimums
3.1 Term. This Agreement shall commence on the Effective Date and expires at the end of two years (“Initial Term”) unless earlier terminated in accordance with this Agreement. After the Initial Term, this Agreement will automatically renew for successive one-years terms (each a “Renewal Term”) unless cancelled by either Party in writing no less than 60 days before the end of the then-current term or otherwise terminated in accordance with this Agreement.
3.2 Customer Exclusivity: During the Term and, subject to the limitations of Applicable Law, PARTNER shall be the exclusive provider of the type of prepaid cards provided to Customer as contemplated in each applicable Program. Customer shall further ensure that each Subsidiary or Affiliate of Customer complies with this section 3.2.
4. Confidentiality
4.1 Each Party agrees that it will have no right to use any Confidential Information received from the other Party, and will not disclose Confidential Information to any third parties without the prior written consent of the disclosing Party, except as may be reasonably necessary for it to perform its obligations or exercise its rights under this Agreement, provided that any such third party to whom such information is provided is subject to a confidentiality agreement that is at least as restrictive as this Section 4. Without limitation, during the Term of this Agreement and thereafter, Confidential Information, along with any information provided to Customer pursuant to this Agreement relating to a Program, may be considered Confidential Information belonging to PARTNER.
4.2 Any Confidential Information received by a Party shall be subject to this Section 4. Notwithstanding the foregoing, each Party may use or disclose Confidential Information received from the other Party:
4.2.1 to report, transmit, investigate and prevent incidences of fraud, misrepresentation or crime;
4.2.2 as required by any court or other governmental body, including any regulatory authority having jurisdiction over it;
4.2.3 to legal counsel of such Party;
4.2.4 in confidence, to accountants, banks and financing sources and their respective advisors;
4.2.5 if necessary, in connection with the enforcement of this Agreement or rights under this Agreement;
4.2.6 in confidence, in connection with an actual or proposed merger, acquisition or similar transaction; or to otherwise comply with Applicable Law. Each Party further agrees that it will use commercially reasonable efforts to maintain the confidentiality of any Confidential Information disclosed by the other Party under this Agreement. The Parties’ obligations under this Section will survive the expiration or termination of this Agreement. The foregoing obligations with respect to confidentiality will also apply to any Confidential Information of Bank which may be disclosed to Customer.
4.3 Confidential Information related to Cardholders or data produced during to or in connection with a Program will be disclosed only to provide the services or in accordance with Applicable Law, court order, or subpoena; provided the disclosing Party will use reasonable efforts to notify the other Party prior to disclosure, and if requested, will reasonably cooperate with the other Party’s efforts to obtain a protective order or other protection.
4.4 Each Party’s rights and obligations under this Section 4 with respect to the other Party’s Confidential Information will survive expiration or termination of this Agreement.
5. Intellectual Property and Ownership
5.1 PARTNER grants to Customer a limited, non-exclusive, royalty-free, non-assignable, non-transferable limited license to use Program Marks during the Term, in the form and manner that PARTNER expressly authorizes to be used solely in connection with the Program. During, and following the termination of this Agreement, Customer grants to PARTNER, a non-exclusive, non-transferable limited license to use any Customer Marks in connection with the Program, for PARTNER’s promotional materials, or similar matters. Notwithstanding anything to the contrary in this Agreement, Customer has no right, title or interest in, nor will Customer use any Association Mark without specific prior written consent of the owner of the mark.
5.2 Each Party’s rights and obligations under this Section 4 with respect to the other Party’s Confidential Information will survive expiration or termination of this Agreement.
5.3 As between the Parties, PARTNER will at all times own all right, title and interest in and to all Confidential Information related to Cardholders and information obtained during or in connection with a Program. Upon termination of this Agreement, PARTNER shall retain all right, title and interest in all such information.
5.4 Customer shall be solely responsible for obtaining the required consent of each Cardholder for the use of Confidential Information necessary to permit such Cardholder’s participation in the Program. Without limiting the foregoing, Customer acknowledges that PARTNER shall at all times be authorized and permitted to communicate directly with a Cardholder.
6. Customer Funding
Customer may fund Cardholder Account directly using a good funds method of settlement via Automated Clearing House “ACH” or as otherwise agreed to between Parties. Funding velocities and limits may be subject to thresholds as stated in the Terms and Conditions.
7. Representations and Warranties
7.1 Representations and Warranties. As of the date of this Agreement, each Party hereby represents and warrants to the other party as follows:
(a) It has the full right, power and authority to enter into and perform this Agreement in accordance with all the terms and provisions herein, and that the execution of this Agreement has been duly authorized and the individuals signing are duly authorized to execute this Agreement;
(b) There are no material actions, suits or proceedings pending or threatened against it or its Affiliates or Subsidiaries which would adversely affect its ability to perform this Agreement;
(c) this Agreement’s execution, delivery and performance will not conflict with, violate, or cause a breach or default under, the terms of any other agreement to which it is a party or commitment by which it is bound; and
(d) represents, warrants, and covenants that all information provided is true and accurate as of the date of this Agreement. The Parties are duly registered and legally authorized to do business in the States where residing and shall remain in good standing throughout the term of this Agreement.
7.2 Legal Compliance. PARTNER and Customer will each comply with Applicable Law governing its obligations under this Agreement and corresponding Program (including any Applicable Law brought to one Party’s attention by the other).
7.3 PARTNER reserves the right to deny participation by any Cardholder or prospective Cardholder in the Program.
7.4 Customer will notify PARTNER within three business days if Customer receives a communication from a regulatory authority concerning the Program.
7.5 To comply with regulatory requirements, PARTNER will conduct a due diligence review of Customer, and Customer must complete and provide the Customer due diligence information. Customer acknowledges that the launch of the Program is contingent on due diligence verification to the sole satisfaction of PARTNER and Bank and further understands additional information may be requested in order for PARTNER to launch the Program(s).
8. Security Safeguards
8.1 PARTNER and Customer will each maintain a commercially reasonable data security program: (1) for the Confidential Information collected under the Program; and (2) satisfying the Interagency Guidelines Establishing Information Security Standards and Applicable Law, regulating Confidential Information ownership, processing, and storage.
8.2 PARTNER is not responsible for, and Customer bears all risk of loss and associated liability for any data breach, data misuse, data corruption, data security, internal fraud of any kind, or related incidents that are part of Customer’s applications, processes, employees, infrastructure, network, security, and related components that make up Customer’s infrastructure and environment and processes related to Customer’s obligations under this Agreement. Customer is responsible for implementing and managing information security policies and procedures that protect the creation, collection, storage, use, transmission, and disposal of sensitive information, including the protection of hardware and infrastructure used to store and transmit such information.
9. Loss Prevention and Security
9.1 If Customer receives Cards from PARTNER, Customer will implement and abide by commercially reasonable inventory controls for Cards and Program materials to ensure the safekeep of Card stock. Customer shall present all Card Collateral as prescribed by PARTNER and/or Bank. Customer bears all risk of loss and any associated liability for Cards stolen, lost, or fraudulently used while under Customer’s control.
9.2 Customer will provide prompt notice to PARTNER if Customer knows or suspects that:
(a) any Card is lost, stolen, issued in error, or otherwise compromised or potentially compromised; or
(b) security for access to the inventory of any Cards in its possession has been compromised.
10. Audit and Inspection
PARTNER or Bank (with at least 10 days’ prior notice), or any regulatory authorities that have jurisdiction over PARTNER or Bank, will have the right to audit, inspect, and obtain copies of Customer’s records related to the Program, as needed to maintain and demonstrate Customer’s, PARTNER’s, or Bank’s compliance with Applicable Law.
11. Account Suspension, Cancellation, or Termination
Bank or PARTNER may suspend, cancel, decline to issue, or terminate, without notice any Card Account, Account Agreement, Card or a Cardholder’s right to use the Program if:
(a) If applicable, Cardholder or Customer has not provided complete and accurate Cardholder information as required by this Agreement, the Program, or Applicable Law;
(b) fraud occurs involving Customer or Cardholder use;
(c) prospective Cardholder fails to pass PARTNER and/or Bank’s verification procedures;
(d) PARTNER makes multiple reimbursements to a Cardholder for claims of unauthorized use of a Card;
(e) the Card Account has not received a deposit or the Card has not been used for longer than 60 days;
(f) if money laundering, or high risk activity occurs or is suspected; or
(g) permitted under the Terms and Conditions or Applicable Law.
12. Fees and Payment
12.1 Customer will pay to Partner the applicable fees and charges as communicated by Partner to Customer (“Customer Fees”).
12.2 Cardholder Fees. PARTNER will deduct from each Cardholder’s Account Balance the fees and service charges as provided in the Terms and Conditions.
13. Modification and Termination
13.1 Customer Termination for Convenience. Customer may terminate this Agreement, without cause, upon thirty (30) days written notice to PARTNER.
13.2 Termination for Cause. This Agreement may be terminated immediately by either Party if: (i) the Associations prohibit the Program; (ii) Bank ceases to provide services to PARTNER necessary for the continuation of the Program; (iii) the other Party files a voluntary petition for bankruptcy or a petition seeking any reorganization, liquidation, dissolution, or similar relief for debtors; (iv) there is an entry by a court of competent jurisdiction of an order, judgment, or decree approving a petition filed against the other Party seeking any reorganization, liquidation, dissolution, or similar relief; (v) there is any breach or default by the other Party that remains uncured thirty days after notice thereof; or (vi) in the reasonable judgment of a Party, applicable laws, rules, or regulations prohibit the Program or materially increase the regulatory burden of continuing the Program. Notwithstanding the above, either Party may immediately terminate this Agreement in the event that it reasonably suspects that the other Party has engaged in any illegal, fraudulent, or unauthorized use of Program cards or any other fraudulent or illegal activity.
13.3 PARTNER Termination for Risk. PARTNER may terminate this Agreement or curtail or restrict its operations under this Agreement (including the termination of a Program in particular jurisdictions) at any time with notice to Customer without liability, upon PARTNER and/or Bank’s sole determination, that continuation of any service contemplated under this Agreement may subject PARTNER to undue financial, legal, regulatory, or reputational risk.
13.4 Accrued Obligations. Termination of this Agreement shall not release the Parties from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement to survive termination. Notwithstanding the foregoing, the Party terminating this Agreement as permitted by any provision in this Article shall incur no additional liability merely by virtue of such termination.
13.5 Cumulative Remedies. Termination of this Agreement, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the Parties and shall be without liability for any loss or damage occasioned thereby. Except as otherwise expressly stated in this Agreement, all remedies specified in this Agreement are cumulative with any other remedies that may be available at law or in equity.
13.6 Effect of Termination. Upon termination of this Agreement, and unless required to continue to perform obligations related to this Agreement, each Party shall (i) immediately discontinue all use of the other Party’s Confidential Information; (ii) delete the other Party’s Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries; (iii) return to the other Party or, at the other Party’s option, destroy, all copies of such other Party’s Confidential Information then in its possession; and (iv) pay all amounts due and remaining payable hereunder. The Cardholder Account will continue to be maintained by PARTNER and the funds will continue to be held for the benefit of the Cardholder, if owned by the Cardholder.
13.7 Wind-Down of Program. The Parties agree to cooperate in good faith to wind down the Program in a commercially reasonable manner.
14. Indemnification
14.1 Obligations. Subject to Section 15 and except to the extent the Losses (as defined below) result from the gross negligence or willful misconduct of the other Party or its agents or employees, each party (the “Indemnifying Party”) shall defend the other party (the “Indemnified Party”), from any claim asserted by a third party (“Third Party Claim”) against the Indemnified Party, and shall indemnify and hold the Indemnified Party harmless against any and all losses, liabilities, damages, costs or expenses, including attorneys’ fees (“Losses”), awarded against the Indemnified Party by a final judgement or an agreement settling such claim in accordance with section 14.2. For purposes of this Agreement, a Third Party Claim means any claim by a third party related or attributable to the Indemnifying Party’s (a) violation of any Applicable Law; (b) breach of this Agreement; and (c) willful misconduct or fraudulent activity on the part of its agent or employee.
14.2 Procedures. The Indemnified Party will notify the Indemnifying Party in a reasonably prompt manner of any claim that is asserted for which the Indemnified Party is seeking indemnification pursuant to this section 14. The Indemnifying Party may thereafter assume control of such claim, provided, that the Indemnified Party will have the right to participate in the defense or settlement of such claim. The Indemnified Party will provide the Indemnifying Party with a reasonable amount of assistance in connection with defending or settling any such claim. Neither the Indemnifying Party nor the Indemnified Party may settle such claim or consent to any judgement related thereto without the consent of the other party (which such consent may not be unreasonably withheld or delayed).
15. Limitation of Liability; Exclusion of Damages
15.1 The cumulative aggregate liability of PARTNER over the life of this Agreement for damages from all claims, Losses, damages, liabilities, reasonable attorneys’ fees, costs and other out of pocket expenses, regardless of the form of action or legal theory shall not exceed $50,000.
15.2 NO EVENT SHALL EITHER PARTY BE LIABLE TO OTHER PARTY, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, FOR INDIRECT, CONSEQUENTIAL, ADDITIONAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR ANY OTHER PERSON ARISING OUT OF PERFORMANCE OR NONPERFORMANCE UNDER, OR OTHERWISE ARISING IN CONNECTION WITH, THIS AGREEMENT OR ITS INDEMNIFICATION PROVISIONS, EVEN IF EITHER PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
15.3 Neither PARTNER nor Bank will be liable for any loss or damage, or be deemed in breach of this Agreement, for the acts or omissions, or the insolvency of, any Association or NACHA, any Federal Reserve Bank or its branches, or other ACH system participants.
16. Disclaimer of Warranties
This is a service agreement. Except as expressly provided in this Agreement, PARTNER disclaims all representations or warranties of any kind (statutory, express or implied), including any warranties regarding quality, suitability, merchantability, fitness for a particular purpose and non-infringement (irrespective of any course of dealing, custom, or usage of trade).
17. Third Party Beneficiaries
This Agreement is entered into solely for PARTNER and Customer’s benefit and will not confer any rights upon any other persons not expressly a Party to this Agreement including Cardholders.
18. Subcontractors
PARTNER may use one or more subcontractors to perform its obligations under this Agreement. To the extent PARTNER engages a subcontractor, PARTNER shall remain solely responsible for the performance of the work of that subcontractor as if the work were performed by PARTNER. Customer shall have no recourse, nor assert any claim against any subcontractor.
19. Force Majeure
Except for Customer’s obligation to pay Customer Fees, neither Party will be liable for any delay or failure to perform its obligations under this Agreement to the extent caused by a Force Majeure Event or the other Party’s failure to comply with its obligations under this Agreement.
20. Notices
Unless otherwise agreed by the Parties, notices given under this Agreement must be in writing and shall be delivered (a) by certified mail, postage prepaid, return receipt requested, or (b) by an express courier with confirmation. Each Party may change notice information by giving the other notice of the change as described in this Section 20.
21. Additional Provisions
21.1 Customer may not assign this Agreement or any of its rights, interests, and duties to another party without PARTNER’s prior written consent.
21.2 This Agreement will be governed by New York law without reference to choice of law rules. Any controversy or claim arising out of or relating to this Agreement, including any breach of the Agreement, shall be settled by binding arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. PARTNER and Customer expressly consent to venue and arbitration in Jefferson County, AL. The decision of the arbitrator is final, and there shall be no right of appeal. Any award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The fees and costs of the arbitrator shall be shared equally by PARTNER and Customer. The prevailing party shall be entitled to recover its reasonable attorney fees and costs.
21.3 To the extent permitted by Applicable Law, each party hereby knowingly, willingly, and voluntarily waives its right to trial by jury in any action or proceeding arising out of, connected with, related to, or incidental to this Agreement.
21.4 Upon PARTNER’s request, Customer will execute and deliver any additional documents, forms, or instruments and perform any additional acts that may be reasonably necessary or appropriate to participate in the Program. Any information and/or materials related to the Program shall not be used by Customer without prior written approval by PARTNER and/or Bank.
21.5 This Agreement is the entire agreement between the Parties, and it supersedes and merges all prior proposals and all other agreements, whether oral or written, by the Parties relating to this Agreement’s subject matter. Except as described elsewhere in this Agreement, no change, modification, or waiver of any term or condition of this Agreement will be valid unless it is in writing and signed by each Party. If there is any conflict or inconsistency between the provisions of this Agreement and Applicable Law, this Agreement will be deemed modified to the extent necessary to comply with Applicable Law.
21.6 The obligations and remedies of the parties set forth in Sections 4, 5, 14, 15, 16, 17, and 21 shall survive termination of this Agreement.
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