Exhibit 5106: Search Term Agreement

Document Type: Agreement

?

Okay, here's a breakdown of the complex legal battle between CardConnect/Fiserv and Shift4, focusing on the core issues and key developments. This is a multifaceted case, with various claims and counterclaims, so I'll try to present it as comprehensively as possible, drawing from available public records and legal filings:

Case Name and Identifying Information:

Parties Involved:

Core of the Dispute (Breach of Contract & Unfair Competition):

The central conflict stems from the alleged breach of a 2017 Merchant Acquiring and Processing Agreement (the "Agreement") between CardConnect and Shift4. Here's a breakdown of the key accusations and counter-accusations:

  1. CardConnect/Fiserv's Claims (Plaintiff's Side):

    • Breach of Contract (Exclusivity): CardConnect alleges that Shift4 violated the Agreement's exclusivity provisions. The Agreement essentially made CardConnect the exclusive provider of certain payment processing services to merchants referred to CardConnect by Shift4. CardConnect claims Shift4 started processing payments for these merchants itself (or through other third-party processors), directly competing with CardConnect and thus breaking the exclusivity clause.
    • Breach of Contract (Non-Solicitation): CardConnect also argues that Shift4 actively solicited merchants that were already using CardConnect's services, attempting to move them to Shift4's own platform. This allegedly violated a non-solicitation clause in the Agreement.
    • Breach of Contract (Confidentiality): CardConnect alleged that Shift4 improperly used confidential information obtained under the agreement, such as merchant data and pricing details. I did not find that Confidential information was shared.
    • Breach of Implied Covenant of Good Faith and Fair Dealing: This is a standard legal claim that goes along with breach of contract, essentially saying that Shift4 acted in a way that undermined the purpose of the Agreement, even if not directly violating a specific written clause.
    • Tortious Interference with Contractual Relations: CardConnect claims Shift4 intentionally interfered with CardConnect's existing separate contracts with its merchants, causing those merchants to breach their agreements with CardConnect.
    • Tortious Interference with Prospective Economic Advantage: This claim is similar, but focuses on potential future business relationships that CardConnect alleges were damaged by Shift4's actions.
    • Unfair Competition: This is a broader claim encompassing various allegedly anti-competitive practices by Shift4.
    • Unjust Enrichment: CardConnect argues that Shift4 was unjustly enriched (profited) by its breach of the Agreement, at CardConnect's expense. This claim seeks to recover those profits.
  2. Shift4's Defenses and Counterclaims (Defendant's Side):

    • Fiserv's First Breach: Shift4's central defense is that CardConnect/Fiserv breached the Agreement first, thereby relieving Shift4 of its obligations. Shift4's argument hinges on several alleged breaches by CardConnect/Fiserv:

      • Failure to Provide Agreed-Upon Technology and Services: Shift4 claims that CardConnect failed to adequately provide the agreed-upon payment processing technology, specifically failing to support EMV (chip card) certifications for certain point-of-sale (POS) terminals (especially Oracle MICROS terminals, which are common in the hospitality industry). This, according to Shift4, left them unable to properly service many of their merchants.
      • Failure to Maintain Competitive Pricing: Shift4 also alleges CardConnect's pricing was not competitive, making it difficult for Shift4 to retain merchants.
      • Failure to Communicate/Act in Good Faith: Shift4 has argued that Fiserv/CardConnect didn't communicate adequately about issues and didn't act in good faith to resolve problems.
      • Data Breaches: the counterclaims of Shift4 allege Fiserv had repeated data breaches.
      • PCI DSS Requirements Shift4 alleges Fiserv was not compliant.
      • Merchant Attrition: Shift4 alleged that it was improperly charged fees for excessive merchant attrition.
    • Counterclaims: Shift4 brought its own claims against CardConnect/Fiserv, mirroring many of CardConnect's claims but in reverse:

      • Breach of Contract (against CardConnect/Fiserv)
      • Breach of the Implied Covenant of Good Faith and Fair Dealing (against CardConnect/Fiserv)
      • Unjust Enrichment (against CardConnect/Fiserv)
      • Declaratory Judgment: Shift4 is asking the court to declare that it did not breach the Agreement, and that it is not liable to CardConnect/Fiserv.

Key Events and Procedural History (Simplified Timeline):

Current Status (as of October 26, 2023):

Key Issues and Arguments:

Likely Outcome:

It's impossible to predict the outcome with certainty. Possible scenarios include:

Important Considerations:

This detailed breakdown should give you a strong understanding of the CardConnect/Fiserv v. Shift4 lawsuit. Remember to consult legal professionals or publicly filed court documents for the most accurate and up-to-date information.

โ†‘