[***] — Indicates
confidential information. Confidential treatment requested.
Portion omitted filed separately with the Securities and Exchange
Commission.
AMENDMENT
to
PROFESSIONAL SERVICES AGREEMENT,
AMENDED AND RESTATED SOFTWARE LICENSE AGREEMENT,
and
TRANSENDING SERVICES AGREEMENT
This Amendment (“ Amendment
”) is by and between Global Cash Access, Inc., a Delaware
corporation (“ GCA ”); Infonox on the Web, a
California corporation (“ Infonox ”) and TSYS
Acquiring Solutions, L.L.C., a Delaware limited liability company
(“ TSYS ”), is executed by the parties as of the
date of the last signature in the signature block below and made
effective as of July 1, 2009 (the “ Effective
Date ”).
WHEREAS, GCA and Infonox are parties to that
certain Professional Services Agreement effective as of
March 10, 2004, as amended (the “ Services
Agreement ”);
WHEREAS, GCA and Infonox are also parties to
that certain Amended and Restated Software License Agreement dated
as of March 10, 2004, as amended (the “ License
Agreement ”);
WHEREAS, GCA and Infonox entered into that
certain TranSending Services Agreement dated June 16, 2008 (the
“ TranSending Agreement ”, and together with the
Services Agreement and License Agreement, the “ Infonox
Agreements ”);
WHEREAS, Infonox was acquired by TSYS and
continues to operate as a wholly owned subsidiary of TSYS;
and
WHEREAS, GCA and TSYS have entered into a
Processing Services Agreement of even date herewith (the “
Processing Agreement ”), pursuant to which TSYS will
provide certain transaction processing services to GCA;
NOW THEREFORE, in consideration of the mutual
promises and covenants set forth herein, the parties hereby agree
to amend the Infonox Agreements as follows:
1.
Revised
Pricing. The fees
and other amounts charged by Infonox are hereby revised as
follows:
1.1 International Gateway/iPass Fees:
Infonox shall no longer charge any
fees or amounts with respect to any [***] previously charged by
Infonox for [***] services under invoice designation
“[***]”.
1.2 [***] Fees: The [***] fees currently
charged by Infonox under invoice designations “[***]”
and “[***]”, as well as the [***]fee of [***], are
hereby eliminated.
1.3 Data Center Fees/Charges.
[***]. With respect to
Infonox’s provision of data center space and related services
for GCA owned equipment ([***]), beginning from the Effective Date
of this Amendment, Infonox may charge GCA a total of [***] per
month per data center location. Currently, GCA utilizes [***] per
data center location. In the event the parties determine
GCA’s needs have materially changed, the parties shall agree
in writing to a corresponding, reasonable adjustment in service and
associated fees.
1.4 TranSending Per Transaction Fee.
The fee of [***] per new transaction
record currently priced by Infonox pursuant to Exhibit A,
Section II, of the TranSending Agreement titled “Fee
during the Operations Phase”, is hereby changed to
[***].
For the avoidance of doubt, the foregoing
revised pricing shall be effective as of the Effective Date and,
accordingly, the charges applicable to the month and year in which
the Effective Date occurs shall be pro-rated on a daily basis to
incorporate and reflect such revised pricing.
2.1 SAS70 Type II and TG-3 Audits.
No later than December 31,
2009, and at least once per calendar year thereafter, Infonox shall
(i) have a nationally-recognized accounting firm conduct a
“SAS70 Type II” audit in accordance with the Statement
of Auditing Standards developed by the American Institute of
Certified Public Accountants, and have such accounting firm issue a
Service Auditor’s Report Type II (or substantially similar
report in the event the SAS70 Type II auditing standard and/or a
Service Auditors Report Type II are no longer an industry standard)
which shall cover, at a minimum, security policies and procedures
and controls, including without limitation, system security and
physical security and (ii) have a nationally-recognized and
certified auditor conduct a Technical Guideline #3, or TG-3, audit.
Infonox shall provide GCA and its independent auditors with a copy
of the SAS70 TYPE II and TG-3 audit reports promptly upon the
completion thereof. Unless otherwise agreed by the parties, each
audit shall be designed and conducted to facilitate periodic
compliance reporting by GCA under the Sarbanes-Oxley Act of 2002
(and related regulations) and comparable laws in other
jurisdictions.
2.2 Remediation. If either the SAS70 TYPE II or TG-3 audit
reports identify any issues or non-compliance, including without
limitation, risks to Infonox’ computer systems and/or
physical facilities which could result in the unauthorized
destruction, loss, alteration of, or access to GCA’s
confidential information or customer data or any Infonox services
being provided to GCA hereunder being materially affected, then a
senior technology executive of Infonox shall promptly meet with a
representative of GCA to discuss the matter and Infonox shall
promptly take action to address the matter raised by the report to
reduce the risk to GCA’s confidential information and
customer data and otherwise cure such issue or
non-compliance.
3.
Integrated DR/BC
Plan.
3.1 General. Infonox has created and shall maintain and
comply with, at its own expense, a comprehensive disaster recovery
plan (“ Disaster Recovery Plan ”) and
comprehensive business continuity plan (the “ Business
Continuity Plan ” and, together with the Disaster
Recovery Plan, the “ DR/BC Plans ”) through
which it shall be able to perform its obligations under the Infonox
Agreements with minimal disruptions or delays. Infonox represents
and warrants that the Disaster Recover Plan (i) includes
processes and procedures to fully restore the Business Critical
Services (as defined on Exhibit B of the TranSending
Agreement) provided by Infonox and GCA data within ten
(10) minutes of an outage (regardless of whether the event
causing the outage is on a local or national level) and
(ii) requires Infonox to maintain fully redundant processing
centers at a minimum of two (2) separate locations and an
additional/third secured data storage facility with full backups of
all data relating to its services that is geographically distant
from the processing centers. Infonox shall: (a) provide a
reasonably detailed summary of its DR/BC Plans, backup capabilities
and redundant processing facilities to GCA within fifteen
(15) days of the Effective Date and again each time a material
change is made; (b) provide GCA with access, at
Infonox’s facilities from time to time upon written request,
to a complete copy of its DR/BC Plans and proof of backup
capabilities and redundant processing facilities for review by GCA
on premises only and GCA may not copy any portion nor remove such
materials from Infonox’s premises; and (c) by
December 31, 2009, revise the DR/BC Plans into consolidated
plans covering both the its services and services provided to GCA
by TSYS under the Processing Agreement.
3.2 Testing. Infonox shall fully and successfully exercise
all aspects of the DR/BC Plans at least semi-annually in a live
production environment. Any deficiencies found in the applicable
plan or its execution will be identified to Company and remediated
within thirty (30) days at Infonox’s expense.
3.3 Changes. Infonox will revise the DR/BC Plans to reflect
changes in its environment and infrastructure and as necessary to
meet or exceed regulatory agency contingency planning requirements.
Infonox shall notify GCA of any material change that it wishes to
make to a DR/BC Plan. No change shall degrade the quality of the
DR/BC Plans or have a material impact on Infonox’s
services.
3.4 Notification of Event.
Infonox shall notify GCA as soon as
possible under the circumstances after the occurrence of any event
that materially effects or could materially affect Infonox’
provision of its services or that otherwise warrants execution of
either DR/BC Plan (a “ Plan Event ”) and shall
execute the DR/BC Plans at no cost to GCA. Infonox will provide GCA
with regular updates during a Plan Event and the recovery process
and (ii) a means of communication whereby GCA can receive
regular updates and monitor progress as information becomes
available.
4.
Cooperation.
Insofar as the setup, implementation
and/or performance of services under the Processing Agreement by
TSYS requires data, documents, information, or materials of any
nature to be furnished, in whole or in part, by Infonox or
Infonox’s employees, agents, or other representatives, or
requires other services or assistance to be provided by
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