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JS 44C/SDNY
REV. 4/2014

CIVIL COVER SHEET

The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of

pleadings or other papers asrequired by law, except asprovided by local rules of court. This form, approved by the

Judicial Conference of the United States in September 1974, is required for Mgof thajprk of Courtfor the purpose of

initiating the civil docket sheet.

B t-^

ffY f j

JL J;

DEFENDANTS

V . *"/

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"'-'.

VIZANT TECHNOLOGIES, LLC

FOOT LOCKER CORPORATE SERVICES, INC., &FOOT LOCKER


RETAIL INC.

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER

ATTORNEYS (IF KNOWN)

Eric Praaer, J. Michael Keyes, &Sarah Kenney

Edward Kang

K&L Gates LLP 599 Lexington Avenue, New York, NY 10022

Kang Haggerty &Fetbroyt LLC, 123 S. Broad Street, Suite 1220, Philadelphia,

212.536.3901

PA19109

?1S.B?5.SHS0

*"

CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE) ... f

(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)


JAN ''-17 U.S.C. 501 (copyright infringement); 15 U.S.C. 1114 &1125 (service mark infringement &false designation of origin)

Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? NeHresQjudge Previously Assigned
If yes, was this case Vol. [J Invol.

Dismissed. No

IS THIS AN INTERNATIONAL ARBITRATION CASE?

No [JO

Yes

If yes, give date

Yes
NATURE OF SUIT

(PLACE AN [x]IN ONE BOX ONL Y)

ACTIONS UNDER STATUTES

TORTS

PERSONAL INJURY

[ 1110
[ ]120
[ ]130
[]140

I 1150

[ ] 151
[ 1152

INSURANCE
MARINE

MILLER ACT
NEGOTIABLE

INSTRUMENT
RECOVERY OF
OVERPAYMENT &
ENFORCEMENT
OF JUDGMENT
MEDICARE ACT
RECOVERY OF
DEFAULTED
STUDENT LOANS

[ ] 310 AIRPLANE
[ ]315 AIRPLANE PRODUCT
LIABILITY

[ ]320 ASSAULT, LIBEL&


SLANDER

[ ] 330 FEDERAL
EMPLOYERS'
LIABILITY

[ ) 340 MARINE
[ ]345 MARINEPRODUCT
LIABILITY

[ ]350 MOTOR VEHICLE


[ ] 355 MOTORVEHICLE

( 1153

11160
[ MM
[ ]195

(1196

RECOVERY OF
OVERPAYMENT
OF VETERAN'S
BENEFITS
STOCKHOLDERS
SUITS
OTHER
CONTRACT
CONTRACT
PRODUCT
LIABILITY
FRANCHISE

( ] 360 OTHER PERSONAL


INJURY

I 1 362 PERSONAL INJURY MED MALPRACTICE

[ ]240
[1245
[ ]290

[ J365 PERSONAL INJURY


PRODUCT LIABILITY

21 USC 881
. , Bg0OTHER

LAND

CONDEMNATION
FORECLOSURE
RENT LEASE &
EJECTMENT
TORTS TO LAND
TORT PRODUCT
LIABILITY
ALL OTHER
REAL PROPERTY

ACCOMMODATIONS

[ ]445 AMERICANS WITH


DISABILITIES EMPLOYMENT

28 USC 157

PROPERTY RIGHTS

[ 1370 OTHER FRAUD


[ ] 371 TRUTH IN LENDING

SOCIAL SECURITY

[ ] 380 OTHER PERSONAL

LABOR

PROPERTY DAMAGE

[ ] 710 FAIR LABOR

[ ] 385 PROPERTY DAMAGE

STANDARDS ACT

[
[
[
[
[

]861 HIA(1395ff)
1862 BLACK LUNG (923)
J 863 DIWC/DIWW(405(g))
] 864 SSID TITLE XVI
] 865 RSI (405(g))

( ]740 RAILWAYLABORACT
[ ] 751 FAMILY MEDICAL

VACATE SENTENCE
28 USC 2255

LEAVE ACT (FMLA)

[ ] 530 HABEAS CORPUS


[ ] 535 DEATHPENALTY
[ ) 540 MANDAMUS &OTHER

[ ]790 OTHER LABOR


LITIGATION

( ]791 EMPL RET INC


SECURITY ACT
IMMIGRATION

PRISONER CIVIL RIGHTS

[ ]462 NATURALIZATION
APPLICATION

[ ] 550 CIVILRIGHTS
[ l 555 PRISON CONDITION
[ ] 560 CIVIL DETAINEE

[ ] 465 OTHER IMMIGRATION

(
(
[
[
[

] 410 ANTITRUST
] 430 BANKS & BANKING
]450 COMMERCE
]460 DEPORTATION
J470 RACKETEER INFLU
ENCED & CORRUPT
ORGANIZATION ACT

(RICO)

[ ]480 CONSUMER CREDIT


( ) 490 CABLE/SATELLITETV
[ ]850 SECURITIES/
COMMODITIES/
EXCHANGE

( ) 890 OTHER STATUTORY


ACTIONS

RELATIONS

(Non-Prisoner)

[ ] 441 VOTING
I J442 EMPLOYMENT
[ ) 443 HOUSING/

[ ] 423 WITHDRAWAL

[yj 820 COPYRIGHTS


[ ] 830 PATENT
[ ) 840 TRADEMARK

PERSONAL PROPERTY

REAPPORTIONMENT

28 USC 158

INJURY PRODUCT
LIABILITY

[ J463 ALIEN DETAINEE


[ J510 MOTIONSTO

CIVIL RIGHTS

OTHER STATUTES

((400 STATE

[ ]368 ASBESTOS PERSONAL l '

[ ]720 LABOR/MGMT

ACTIONS UNDER STATUTES

BANKRUPTCY

[ ] 422 APPEAL

I 1 375 FALSE CLAIMS

PRISONER PETITIONS

[ ]440 OTHER CIVIL RIGHTS

( ]220
( J 230

FORFEITURE/PENALTY

PHARMACEUTICAL PERSONAL ( j 625 DRUG RELATED


INJURY/PRODUCT LIABILITY
SBZURE 0F PROPERTY

PRODUCT LIABILITY

REAL PROPERTY

t 1210

PERSONALINJURY

[ ] 367 HEALTHCARE/

PRODUCT LIABILITY

(EXCLVETERANS)

& Case No.

[ ) 891 AGRICULTURAL ACTS


FEDERAL TAX SUITS

[ ] 870 TAXES (U.S. Plaintiffor

[ 1893 ENVIRONMENTAL
MATTERS

Defendant)

( 1871 IRS-THIRD PARTY

[ ] 895 FREEDOM OF
INFORMATION ACT

26 USC 7609

[ ] 896 ARBITRATION
[ ] 899 ADMINISTRATIVE
PROCEDURE ACT/REVIEW OR
APPEAL OF AGENCY DECISION

[ ]950 CONSTITUTIONALITY OF
STATE STATUTES

ACTIONS

CONDITIONS OF CONFINEMENT

[ ]446 AMERICANSWITH
DISABILITIES -OTHER

[ ) 448 EDUCATION

Checkif demanded in complaint:

CHECK IF THIS IS ACLASS ACTION


UNDER F.R.C.P. 23

DEMAND $_

OTHER

Check YES onlyifdemanded incomplaint

JURY DEMAND: SYES OjO

MTHISCASE IS RELATED TO A CIVIL CASE NOWPENDING IN S.D.N.Y.?

fFSO?sW
JUDGE

DOCKET NUMBER

NOTE: You must alsosubmit at the time offiling the Statement ofRelatedness form (Form IH-32).

(PLACEAN x INONEBOXONLY)

Hi Original

ORIGIN

2 Removed from

Proceeding

Lj 3 Remanded Lj 4 Reinstated or

StateCourt

'

a. iip.rti.tr.pr.t.nt.d

LJ 5 Transferred from Q 6 Multidistrict

Reopened

from

(Specify District)

fj 7 Appeal to District
Judge from

Litigation

Magistrate Judge

Appellate

Judgment

Court

I I b. Atleast on*
party Is pro se.

(PLACEAN x INONEBOXONLY)

1 U.S. PLAINTIFF

BASIS OF JURISDICTION

Q2 U.S. DEFENDANT S 3 FEDERAL QUESTION

IF DIVERSITY, INDICATE

Q4 DIVERSITY

CITIZENSHIP BELOW.

(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)


(Place an [X] in one box for Plaintiff and one box for Defendant)
CITIZEN OF THIS STATE

CITIZEN OF ANOTHER STATE

PTF

DEF

[]1

[]1

[ ]2

[ ]2

PTF DEF

CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY

[]3[]3

INCORPORATED or PRINCIPALPLACE

[ ]4 [ ]4

INCORPORATED and PRINCIPALPLACE

PTF

DEF

[ ]5

[ ]5

[]6

[]6

OF BUSINESS IN ANOTHER STATE


FOREIGN NATION

OF BUSINESS IN THIS STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

Foot Locker Corporate Services, Inc. and Foot Locker Retail, Inc.
112 West 34th Street

New York, NY 10120

New York County

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

Vizant Technologies, LLC


Brandywine Two Building, Suite 202
5 Christy Drive
Chadds Ford, PA 19317

Delaware County
DEFENDANT(S) ADDRESS UNKNOWN
REPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN
RE9IBENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Check one:

THIS ACTION SHOULD BE ASSIGNED TO:

Q WHITE PLAINS

\x\ MANHATTAN

(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTS
COMPLAINT.)

DATE 1/15/2015

SIGNATURE OF AJTORNEX/O'f/RECORD

ADMITTED TO PRACTICE IN THIS DISTRICT


[ 1 NO

RECEIPT #

4^"^ IJ

Hi YES (DATE ADMITTED Mo.April


Attorney Bar Code #EP-0964

Magistrate Judge is to be designated by the Clerk of the Court.


Magistrate Judge.

Ruby J. Krajick, Clerk of Court by.

MAG.,

tt

. Deputy Clerk, DATED.

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

is so Designated.

Yr. 1994

i'-'i.ii l.4iJ

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK

FOOT LOCKER CORPORATE SERVICES,


INC. and FOOT LOCKER RETAIL, INC.,

i'-^sj

Civil Action No.

Plaintiffs,

against

JURY TRIAL DEMANDED

VIZANT TECHNOLOGIES, LLC,


Defendant.

o'';

COMPLAINT
CO

Plaintiffs Foot Locker Corporate Services, Inc. ("Foot Locker Corporate Services") a|td
Foot Locker Retail, Inc. ("Foot Locker Retail"), collectively "Plaintiffs," by and through their

undersigned counsel, K&L Gates LLP, for their Complaint against Vizant Technologies, LLC
("Vizant") allege as follows:
NATURE OF THE ACTION

1.

This is an action for knowing, willful, and intentional violations of several federal and

state intellectual property laws and for breach of contract. As further detailed herein, Vizant,

without authorization, license, or permission - and in direct contravention of a written agreement

- infringed the copyright in the iconic "Foot Locker Striper," a well-known graphical work that
is a registered work of authorship with the U.S. Copyright Office.

Additionally, and in

contravention of the aforementioned written agreement, Vizant improperly reproduced and used
in commerce various federally registered service marks owned by Foot Locker Retail. Vizant's
commercial use of the registered service marks violates Sections 32 and 43(a) of the Lanham

Act, and New York's unfair competition law. Finally, Vizant breached its written agreement

with Foot Locker Corporate Services by engaging in the aforementioned acts of infringement,

and asserting objectively baseless claims for amounts due and owing under the agreement.
Plaintiffs seek damages, injunctive relief, and recovery of attorneys' fees and costs due to
Vizant's wanton, egregious, and oppressive conduct.
PARTIES. JURISDICTION. AND VENUE

2.

Plaintiff Foot Locker Corporate Services is a corporation organized and existing under

the laws of the State of Delaware, having its principal place of business in New York, New York
with an office in Camp Hill, Pennsylvania.
3.

Plaintiff Foot Locker Retail is a corporation organized and existing under the laws of the

State of New York, having its principal place of business in New York, New York.

4.

Vizant is a limited liability company organized and existing under the laws of the State of

Delaware. Upon information and belief, members of Vizant are citizens of at least Pennsylvania
and New York.

5.

This Court has subject matter jurisdiction over the copyright infringement claim and the

Lanham Act claims pursuant to 28 U.S.C. 1331 and 1338(a). This Court has supplemental

jurisdiction over the state law claims for unfair competition and breach of contract pursuant to 28
U.S.C. 1367.

6.

This Court has personal jurisdiction over Vizant because it has continuous and systematic

contacts with the State of New York and regularly transacts business in this State. Further,

Vizant has knowingly engaged in the acts of infringement, unfair competition, and breach of
contract described herein in this State, knowing those acts would cause harm in this State to one,
or both, of the Plaintiffs.

7.

Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b).

FACTS SUPPORTING CAUSES OF ACTION

Plaintiffs' Valuable Business and Intellectual Property

8.

Plaintiffs are wholly owned subsidiaries of Foot Locker, Inc., the world's leading retailer

of athletic footwear and apparel, operating approximately 3,600 athletic retail stores in 21
countries in North America, Europe and Australia under the brand names, including without

limitation, "Foot Locker," "Footaction," "Lady Foot Locker," "Kids Foot Locker," and "Champs
Sports."

9.

Foot Locker Corporate Services owns a valid, enforceable, and registered copyright in the

iconic Foot Locker Striper graphic design:

Striper.

, hereinafter referred to as the Foot Locker

A true and correct copy of a screenshot from the Copyright Office's website,

www.copyright.gov, showing registration of the Foot Locker Striper is attached hereto as


Exhibit A.

10.

For decades, Foot Locker Corporate Services and its related entities have used this

copyrighted work in promotional and advertising campaigns to promote the Foot Locker goods
and services.

11.

Additionally, Foot Locker Retail owns an incontestable federal service mark registration

for the Foot Locker Striper design, U.S. Registration No. 1,591,435. Foot Locker Retail also

owns an incontestable federal service mark registration for the stylized design of the "Foot

Locker" word mark, U.S. Registration No. 1,032,592. These marks are collectively referred to
hereafter as the "Foot Locker Marks." True and correct copies of the U.S. Registrations for the
Foot Locker Marks are attached as Exhibit B.

12.

Plaintiffs have invested an enormous amount of time, money, and resources to promote

and develop the goodwill associated with the Foot Locker Marks. The Foot Locker Marks have
3

become widely recognized and associated as source identifiers for the goods and services offered
by Plaintiffs and their related entities.

In addition to the thousands of "brick and mortar"

locations where Plaintiffs' goods and services are offered, the Foot Locker Marks are

prominently promoted online. Plaintiffs are also actively engaged in promoting the Foot Locker
Marks via social media websites, such as Facebook and Twitter. The official Foot Locker

Facebook page has over 6 million likes, and the Foot Locker Twitter page has 1.08 million
followers.

Vizant's Conduct Giving Rise to the Claims in this Lawsuit

13.

On May 31, 2013, Vizant (then known as P.E. Systems) and Foot Locker Corporate

Services entered into a written "Consulting Agreement." The parties also entered into a Mutual

Confidentiality Agreement.

A true and correct copy of the Consulting Agreement and the

Mutual Confidentiality Agreement are attached hereto as Exhibit C. On information and belief,
in 2013, P.E. Systems changed its name to Vizant Technologies, LLC. This name change did
not alter any of the legal obligations owed by P.E. Systems, LLC to Foot Locker Corporate
Services.

14.

The Consulting Agreement was for services related to merchant processing fees paid by

Foot Locker Corporate Services and its affiliates when consumers use charge cards to pay for
merchandise at Plaintiffs' retail locations.

15.

The Consulting Agreement provides as follows: "Use of Trademarks, Logos and the

Like. [Vizant] agrees and acknowledges that [Vizant] shall not and is not authorized to utilize
[Foot Locker's] logos, trademarks or identity in any manner including without limitation, in

[Vizant's] Sales Presentation and [Foot Locker's] name in [Vizant's] regular listing of clients."

16.

Foot Locker Corporate Services became aware that Vizant breached the above portion of

the Consulting Agreement by prominently placing the Foot Locker Marks, including the Foot
Locker Striper work, on the top center portion of Vizant's "Our Clients" section of the Vizant

webpage. A true and correct copy of this portion of the Vizant.com website on July 31, 2014 is
attached as Exhibit D.

17.

Vizant also breached the "Use of Trademarks, Logos and the Like" provision of the

Consulting Agreement by listing Foot Locker, Kids Foot Locker, and Lady Foot Locker in
Vizant's "Retail Stores & Online Retail" client listing portion of the Vizant website. A true and
correct copy of this portion of the Vizant.com website on July 31, 2014 is attached as Exhibit E.

18.

As such, Vizant has used the Foot Locker Marks, or marks that are strikingly similar to

the Foot Locker Marks, including the Foot Locker Striper, as advertisements on its website,

Vizant.com. Vizant displayed the Foot Locker Marks on its website to purposefully advertise
that Plaintiffs endorse and sponsor Vizant's services.
19.

At no time was Vizant authorized to display the Foot Locker Marks or advertise that

Plaintiffs endorse or sponsor Vizant's services.


20.

Despite never having authority to use the Foot Locker Marks, Vizant used the Foot

Locker Marks to advertise a false designation of origin between Plaintiffs and Vizant.

21.

By utilizing the Foot Locker Marks on its website to advertise a false designation of

origin between Plaintiffs and Vizant, Vizant's use is likely to cause confusion, or to cause
mistake, or to deceive consumers.

22.

In addition to the aforementioned conduct, Vizant has made objectively baseless claims

for payment of monies due and owing under the Consulting Agreement. By way of example
only, Vizant issued Invoice No. FLCS-REF2 to Foot Locker Corporate Services for a

"Professional Services Fee" in the amount of $851,726.59. A true and correct copy of this
invoice is attached hereto as Exhibit F. Vizant had no reasonable basis for issuing this invoice

and even Vizant CEO Joseph Bizzarro has admitted the invoice was issued simply to "get Foot
Locker's attention."

23.

After continued harassment and unprofessional conduct by Vizant, Foot Locker

terminated the Consulting Agreement on July 31, 2014. A true and correct copy of this July 31,
2014 termination letter is attached hereto as Exhibit G. Shockingly, Vizant's concocted claims

for payment of monies did not stop, even after termination of the parties' agreement. Instead, on
August 31, 2014, Vizant issued Invoice No. FL-SC 9-12 to Foot Locker Corporate Services for

purported "Professional Services" provided by Vizant for an additional amount due and owing of
$503,863.85. A true and correct copy of this invoice is attached hereto as Exhibit H.
COUNT I

COPYRIGHT INFRINGEMENT

24.

Plaintiffs re-allege the allegations set forth in Paragraphs 1 through 23 above, as if fully

set forth here.

25.

Foot Locker Corporate Services is the author and owner of theFoot Locker Striper.

26.

The Foot Locker Striper is an original work of authorship and is copyrightable subject

matter under applicable law immediately upon creation.

27.

The Foot Locker Striper is registered with the United States Copyright Office under Reg.

No. VA0001936780, which is a valid registration.

28.

Unbeknownst to Foot Locker Corporate Services, Vizant reproduced a copy of the Foot

Locker Striper and displayed that copy on Vizant's website, Vizant.com.

29.
501.

These acts constitute copyright infringement in violation of the Copyright Act, 17 U.S.C.

30.

Vizant was never authorized to reproduce or display the Foot LockerStriper.

31.

By reason of the foregoing, Plaintiff Foot Locker Corporate Services has been and will

continue to be irreparably harmed and damaged. Plaintiff Foot Locker Corporate Services'
remedies at law are inadequate to compensate for this harm and damage.
COUNT II

SERVICE MARK INFRINGEMENT (15 U.S.C. 1114)

32.

Plaintiffs re-allege the allegations set forth in Paragraphs 1 through 31 above, as if fully

set forth here.

33.

Foot Locker Retail owns valid and incontestable service mark rights in the Foot Locker

Marks, as registered with the United States Patent and Trademark Office under Registration
Numbers 1,591,435 and 1,032,592.
34.

Vizant has used the Foot Locker Marks in commerce in connection with its online

advertisement of services.

35.

Vizant's use of the Foot Locker Marks is likely to cause confusion, or to cause mistake,

or to deceive consumers, in violation of the Lanham Act, 15 U.S.C. 1114.

36.

Vizant has not been licensed or otherwise authorized to use the Foot Locker Marks, and

in fact Vizant was contractually prohibited from doing so.


37.

By reason of the foregoing, Plaintiff Foot Locker Retail has been and will continue to be

irreparably harmed and damaged. Plaintiff Foot Locker Retail's remedies at law are inadequate
to compensate for this harm and damage.
COUNT III

FALSE DESIGNATION OF ORIGIN (15 U.S.C. 1125)

38.

Plaintiffs re-allege the allegations set forth in Paragraphs 1 through 37 above, as if fully

set forth here.

39.

Plaintiff Foot Locker Retail owns valid service mark rights in the Foot Locker Marks,

and both Plaintiffs Foot Locker Retail and FootLocker Corporate Services have a right to use the
Foot Locker Marks and have a beneficial interest therein.

40.

Vizant has used the Foot Locker Marks in commerce in connection with Vizant's online

advertisement of services, as described above.

41.

Vizant's use of the Foot Locker Marks in its online advertisement creates a false

designation of origin between Vizant and Plaintiffs in violation of the Lanham Act, 15 U.S.C.
1125(a).

42.

Vizant has not been licensed or otherwise authorized to use the Foot Locker Marks, and

in fact Vizant was contractually prohibited from doing so.

43.

By reason of the foregoing, Plaintiffs have been and will continue to be irreparably

harmed anddamaged. Plaintiffs' remedies at law are inadequate to compensate for this harm and
damage.
COUNT IV

UNFAIR COMPETITION (NEW YORK COMMON LAW)

44.

Plaintiffs re-allege the allegations setforth in Paragraphs 1 through 43 above, as if fully

set forth here.

45.

Plaintiff Foot Locker Retail owns valid service mark rights in the Foot Locker Marks,

and both Plaintiffs Foot Locker Retail andFoot Locker Corporate Services have a right to use the
Foot Locker Marks and have a beneficial interest therein.

46.

Vizant has used the Foot Locker Marks in commerce in connection with its online

advertisement of services, as described above.

47.

Vizant's use of the Foot Locker Marks in its online advertisement is likely to cause

confusion or mistake in the mind of the public.


8

48.

Vizant's use of the Foot Locker Marks constitutes bad faith because Vizant used the Foot

Locker Marks in spite of its contractual obligation prohibiting such use.


49.

Vizant had actual knowledge that it was prohibited from using the Foot Locker Marks but

used those marks anyway.

50.

Thus, Vizant's actions constitute unfair competition in violation of New York common

law.

51.

By reason of the foregoing, Plaintiffs have been and will continue to be irreparably

harmed and damaged. Plaintiffs' remedies at law are inadequate to compensate for this harm and
damage.
COUNT V

BREACH OF CONTRACT (WASHINGTON LAW)

52.

Plaintiffs re-allege the allegations set forth in Paragraphs 1 through 51 above, as if fully

set forth here.

53.

Plaintiff Foot Locker Corporate Services and P.E. Systems LLC, now Vizant, entered

into a valid contract referred to herein as the Consulting Agreement.

54.

P.E. Systems changed its name to Vizant Technologies, LLC in 2013. This name change

did not alter any of the legal obligations owed by P.E. Systems, LLC to Foot Locker Corporate
Services.

55.

The Consulting Agreement provides that all provisions of the agreement will be governed

by the laws of the State of Washington.

56.

The Consulting Agreement provides that "[Vizant] agrees and acknowledges that

[Vizant] shall not and is not authorized to utilize [Foot Locker's] logos, trademarks or identity in
any manner including without limitation, in [Vizant's] Sales Presentation and [Foot Locker's]
name in [Vizant's] regular listing of clients."

57.

Vizant materially breached the Consulting Agreement when it prominently placed the

Foot Locker Marks, including the Foot Locker Striper work, on the top center portion of Vizant's
"Our Clients" section of the Vizant webpage.
58.

Vizant also breached the Consulting Agreement when it listed Foot Locker, Kids Foot

Locker, and Lady Foot Locker in Vizant's "Retail Stores & Online Retail" client listing portion
of the Vizant website.

59.

Vizant also breached its implied covenant of good faith and fair dealing by making

objectively baseless claims for payment of monies due and owing under the Consulting
Agreement as described herein. By making these baseless claims for payment, Vizant did not

cooperate with Foot Locker Corporate Services so that Foot Locker Corporate Services could
obtain the full benefit of performance from Vizant.

60.

Plaintiff Foot Locker Corporate Services performed its obligations under the Consulting

Agreement.

61.

Plaintiff Foot Locker Corporate Services suffered damages as a result of Vizant's

breaches of contract, including but not limited to loss of licensing fees and damage to Plaintiff
Foot Locker Corporate Service's goodwill and reputation.
PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that this Court enter judgment in their favor on each and

every claim for relief set forth above and award them relief including, but not limited to, the
following:

A.

That Vizant be permanently enjoined from infringing the Foot Locker Striper

copyright;

10

B.

That Vizant be permanently enjoined from infringing the Foot Locker Marks,

creating a false designation of origin between Plaintiffs and Vizant, and unfairly
competing with Plaintiffs;

C.

That Vizant be ordered to pay damages, including but not limited to Vizant's

profits and Plaintiffs' actual damages for Vizant's copyright and service mark

infringement, creation of a false designation of origin, and unfair competition;


D.

That the damages for Vizant's violation of the Lanham Act be trebled under 15

U.S.C. 1117;

E.

That Vizant be ordered to pay damages for its breaches of contract against Foot

Locker Corporate Services;

F.

That Vizant be ordered to pay Plaintiffs' costs and attorneys' fees in this action

pursuant to 15 U.S.C. 1117; and

G.

Awarding such other relief as the Court may deemjust and proper.
JURY DEMAND

Plaintiffs hereby demand a trial by jury of all issues so triable.


Dated: New York, New York

January 15, 2015

K&L GATES

Eric A. Prager
Sarah P. Kenney
599 Lexington Avenue
New York, New York 10022
Tel: (212) 536 3900
Fax:(212)536-3901

eric.prager@klgates.com
sarah.kenney@klgates.com
11

12

J. Michael Keyes (pro hac vice

application to be filed)

618 West Rivers ide Avenue

Suite 300

Spokane, WA 99201-5102

Tel: 509.624.2100

Fax: 509.456.0146

mike.keyes@klgates.com

Counselfor Plaintiffs Foot Locker


Retail, Inc. & Foot Locker Corporate

Services, Inc.

f
i

Int. CI.: 42

Prior U.S. CL: 101

T .

Reg. No. 1,591,435

United States Patent and Trademark Office Registered Apr. io, 1990
SERVICE MARK
PRINCIPAL REGISTER

KINNEY SHOE CORPORATION (NEW YORK

CORPORATION)

FIRST USE 1-0-1988, FIRST USED IN AN-

OTHER FORM ON FEBRUARY 1985; IN COM-

233 BROADWAY
NEW YORK, NY 10279

MERCE 1-0-1988.

SER. NO. 73-800,151, FILED 5-15-1989.


FOR:

RETAIL

SPORTS

APPAREL

AND

FOOTWEAR STORE SERVICES, IN CLASS 42


(U.S. CL. 101).

KELLEY WELLS, EXAMINING ATTORNEY

Int. CI.: 42

Prior U.S. CI.: 101

Reg. No. 1,032,592

United States Patent Office

Registered Feb. 3, 1976

SERVICE MARK
Principal Register

Kinney Shoe Corporation (New York corporation)


233 Broadway
New York, N.Y.

10007

For: RETAIL SPORTS APPAREL AND FOOT


WEAR STORE SERVICES, in CLASS42 (U.S. CL. 101).

First use on or about Sept. 12, 1974; in commerce Feb.


14, 1975.

Ser. No. 50,452, filed Apr. 24,1975.


L. STRICKMAN, Examiner

eetn*"M"*mwT?ff"*

!^^f.*^^f,*W^^*,w*B,,,^i*mid,',,, entered into, efeftral bdste executed Mtow, by and between P.E. Systems. UC rPEST, aDelaware
Umted UabUty Company, fecatad at 2S Wart Mah Avenue, Suite 400, Spokane, WafMngton 9noMHU and Foot loekar Corporate Services. Inc ratam,
faceted at9S*3 Smote* ftmryfW.Camp ,** 17011. PCS aryiaiar*{omtyfrfMtdto.sdM-pitttas-indlndMdutlyK-Priy'
WHERfM.PBtjerie^mtltobilneofpr^^

WHEREAS, clientdestouto have PES perform Consulting Services for atom's PaynsarrtProcasdngCosts,

NOW, IHERfPOW, for (ood ind valuable coraidaratkia. the receipt and sufficiency ofwhich Is hereby sckravdedged. the Parties attending tobe lege* baiaid

hereby., agrae at fallows:

a. tentshalloadenedesaci*ren*rylstf^^

assigns, parent companies, oMsIoik oraHlnatoa thatproms payments.


b. prmemi*iabo^ij

jayiaamier|e>aefceideer^

t^fictlMpmMtfefa^fae*ariai

AipwtrftolntBri^r^AnafyjisimdftaajwxlatailBMjaBd

easts, PBsNlaia^yaOat,*Oabltc>rdttalata*oMa^

bwcOon,|MritiaMtetrOurbtaftt!lar^

^^

c Caw^:*,if** be
MlysfeidBiana^

incurradfcyCHeirt ovaipayBWrtvartot^omtofc^a^ cmpllaf<awn^ Ca^< peyrao* procanlng contract*


d. BbMshdlieeaAiedvb^CoitRaducaonKHo.

CaatP^iwtlonititosfaaba defined aa95Kof Payment P^

f. Payment PMeaataaj Coct Reducttor*ihatl be defined as the difference batmen CeemTs Historical Payment Praoesiing Coats and Oram** currant Payment
Processing Casta during theTerm of theAgreement Such eaatewMbaadsusaai from tain to taittto acou^
prooaulag organtlatlons (La. Van, MasterCard, AnwrtanEiraieis,etanfcestnjitwe.

B MtcalOBl Payrnent rVaoeiaMg Carts shatIn daflii^


taicHw mwttta eimedbtaJy pracodlrajthe daterf
K RcbiuatslMH be aWitnedl asrepaynwnts, oadltt,oroth

Those refines obtained byClient hitheordinary course oftheir debit and credit card business*at are not directly attributable toPB ConsMMni Santas
srwRnrtbacaloilabKllrrtoPSConsuMniFa*
I. Term srtrt be difimedasU rewrite r ^

PCS fr# Payment ftocaaIrQDltlteduecajn


mrngn when PES dsewmtoes Burt some pcrtcn of te
actual cost reduction.

' Htlliri til IHlllanallllll nml didl|


till f I Iaillli
AeuiremeopyeftrajIrijymemBvces
Cost* wfthln30 days(ramexaartson of thisAgreement;
tiCopiesrfahnmrainoetivcamUmonektrf

t Ceite cOeiift onaxifr Payment Process


thnMamsshaB be providedwfthlnKi daysoftttt

dentwarrantothatitshall a** PES aH Information niatonablyflexaMaryaorPStoparlbfinarania^


^ITYieTlltataT>%nrtr Af^recatptrtc^^

patatrtad software ardawrftet^fira proprietary da


wlb^lssuajfepertCllai*bSetisspBeme^
wanansMsrfaenfttifttcthatPiy^^

* MjjMffl PBIflaallal CM ItlHnHltBflfc After PES provides CMnt wIM PIS' confldiMlal report, ft Is within Olenfscola dUcrecrkw whether Client elects to
anplement the presented Payment Processing Cost Reduction recommendations (Inducing regulated and non-ragutatad debit card quaMcatlorts) In PSS's

C0^J*"i,,d,0" Pn**m- 0>tni " afaet out to Implement PSS's Payment Processing Cost Reduction ramrnmendatloni based on Various factors which
include but are notlimited to: Imphanentation hesibility, coatbusiness disruption and origination ofsuggested Payment ProcessingCott Reduction. In the

event, Client electa not tomove forward and Implement PES's Payment ftrassiiaj Cost lta<ajctlorcHh<r party m
tflb Agreement PBwfJ also cflwifeongobvmonths

W* Payment fVpcasslia] Cost Reduction reconmwdetlofll, CUM! Ml be oBRfattd to pay PR It, Qmi*tin Fee for Payment Prgcnting Cost Matfon*

Uandned and recommended hi pes'* cost induction Pragnnuub|ett toorigination of lugaested Payment Processkif Cost Reduction, /egardbss ofwho

achievesthe Payment Processing CoatRadudfonson behalfof Client.

5.QMHjHngfgaji Subject toortgmatlon ofsuggested Payment ProcasdngCost Reducflcn, aientshall pay PES aConcurring Fee for any Payment ProcasdngCost
Reductions In PrysCortFUKlucdwProt7amllurt are Implemented arrf actually M
Should Payment Processing
Coat Reductions occur asa result ofCSant obtaliMng a refundPB snail l entMad to aCarwIHiv ^
mamh m vmlch the reftind b infirnied and rece^ ev Ola^

Rate. In aetarmlntag theCost Reduction Ran, PES thaiutlliethe Historical Payment Processing Cost method thatmost accurately captures Cllanfs Payment
Processingcost Reductions.
toPoran Pawwtnt Cost Raowttons
Current Per Item

Current Number of

Cost Reduction

Ml

Transactions Applicable

Rite

CaruuJtfngfoe

$0.20

$0.10

] [

40,000

35*

$1,400.00

6.BunutnoOL Payment Iryaitaitshell bedinet*etym

^^^a^mS^

' ^^l,towrfttlftoa^h7^m8M,^^w^^*ffaefflert^lwrvto

a^e?*S^l^
'
y wirWaWWU, baiPatTniifm Hty. H ayee*and**t*irt*4*Jia*P^

ST2C#n7i!iK

t^,,,,* wunn

Sf* **"**"****. ***Security wtthn^n, tax. tranyettar MM* state

oifbSiJt^^

11^!"^u"J*"""**e*ae.tos PES shall aotKV Client wtthrn SOd^asidredleclauetocW*trM

'veantont.Should PES ceasatt provide such services, Cadrtira*he*emerjhttotermliitot^^

!* vfrVMMajiga/,The provisionsofthis Agreementshall begovernedto all respectsbythe laws ofthe StateofWashington.


U-llata*UB4aBaUaatTrwijnoteabmed Ito

**watoiem;iwrt*e^thgama,,^

written commuelcednraeroral discussions; statement*, representationw agreements.


ILAHandjeajfctaTheenhYetyef

l^MQtfrnaWaaTaaTMs Agreement maynotbe altered, amendedor modified eacept byawrWag signed try an authorisedrepresenariveofeach party.
16toalWWTPfeShouldarw provision oft^Agrtemert
'Hienfbrccabllltyc^iteclhcrprr^skHiss^llnotbeafnKttd
"snvTi-Yslftrtfr Failure byoHr^
t enforcesuchpaovtslon.

lajriramtrirtiri j. Each partyIwapaructpated (nrwgothtlnganddrafc^thlsAgreerrierrt. sprlan ernblt^oraquesbtanoreitentarlmerpMattanartai,


this. Agreementsle* btconstrued as Ifth<parties hado^ed It Jdntfy, asopposedtobelngconstr^

19.nrafil.cMMertir

. Thar*arttviB*Apermm*c^cor|a^

&Tltowc^>riy"nd>art*fsNwtec^

at0Blt1TtCaJ*<^^

aw one c* which may be Introduced In evidence) or used for any other purpose without fj production ofIt* duplicate counterpart Moreover,
rKab-rWu*Kfln^at a^ ofme m^

Sf^^Tf

"*>* <"* Ml*mminstrument te*dj| ialofthe sanies hereto, facsimile transmission and/or validated electronic

Wnsmisskwto ij partyof a m-ciwrfa i*^^

(Signature page and Mutual bnflrJairtalltyAtreerrerrt Fe4ow)

fowl lecfcar tartrate aaaraice* Inc.

tfa*** .

-3frA**

Agrthorb^Sgrnture: _

d~

Wiws

OMiaiTA

mnuKLommoomAimnsKmAaa

rohnrt 1^ZZ?JL*ZZV *l2SSr *-&! ' " * "- * Operate Services, toe.

. a^p
WIEA5,tlto Parte*tave entered irrto tr^

e^'esWlow?6 *" *"' ""*W,U,h" <0n*',rtio,, *"*t " * " which ere herebyedrowledged, the rartfes
i^d^nte^ae^^""^ ""' '*"'**' *" """ M,pec0^ . Pkjrto dtaclosh., or receKto, aspec* Rem of
L~*J!a!!!V!!!2 ""^J"?'0" *" mMn aaaildansbH noe-pubnc Information whether In oral, written,"
graphic,
electronic or
^ Baren**r

othej-fcrmaiidwhecherrelBtexltoaWrlyeTltoperarti
a]

aw*tr frt&matfcM
*h*Mic,|ff*i^lo

Inducing, but not limited to, store address a>


safes dW. tostx, fees and charges, operating expanses, margins, productplennkw

te^Mftto, martattog nrmgtrt, cutestprea** aatesettimatea, beatne plans, and internal performance
fwulto reladngte pest preaent or f^^

and suppress;

^J^TULS!!^^ *W* *"^*w, report*. arawytit, wmpttatiemv vd. *

*{atrwsii, computer software, aottrce coda, object code, flow charts, databases, ImnftTtoax. Information.

oftheterms, condlttow orfacts wftfa respect theietowltoouttheprtorwrlttencoaserftcd^

t^JFEU*!!!!? '"* ** "*"***** * ftbat l *^. atoja* aafti ** reason*** peg** f caret to
re-taeS2^
''""^"J** ** ""a** **** Ae?awMW byeither Party, the non-breaching Party she* bay* aft rarnadte J*and/or
<*W*veJlaWtolfcli^^
A
Wtom orde^ eiwreWr^ ii^rbjl^
t**dwtteraerfpT*toear*o^

*"

""

TteobeWMsofconAderr^
a)

b)

el
c|

dj

was Inthepublk: domain at Hm timeofdhxlosura;

becomespartofthe public dwnitoaftedUclimrethroughrw^loftrMi rMplent;

was acquired bytheRecfplemtadepaitdentiy, after olsdoturerreraurKler.trCffletnwpertywItnoutbreacrioftkjs

Agreement or violationof applicable law:

the Redolent can demonstrate through prior written records that itwas in Its possession prior tothe time of
disclosure end was not acquired directly or Indirectly from the Otsdostng Party or any parson, firm orcorporation

acting on its behalf; or

the neclplem can demonstrate: was independently developed by Recipient wRhout mm of Confldentlsf
Information,

lavnnapaaji srihln at

Page4 OfS

Lr.*wiL" HlMH^l[H'HSrt 'T*!!, T wquir,d " ' """* * J"**1 wri"'*rV proceeding to disclose any

Pto^prde?

"

W<to,,n ""* "* I"0',,PI n** ,h**"" ** '** mey seek i

Ls-ea-ll!!ll^^^

^ taxationte

ItlTJrZJr^^!!^^

toJs^lp^
*

JWsA^emwtutltoermreegrMraertbrf

reapewtotltosui^tmatterhereof. TNsAgntamentmay

ha amended onlybymeans ofawittean Instrument vacated onbehalfofboth Parties.

i5Lu..-H!S-^T^,t sH-nS^*'!^* 1*e *>** *w- eMisfttotlcar* *f Rtsst Oaissfiljlrs As^MmetnC tesr tKtesf f m (2} yej.^
ofbadesecretsoTsctosedhareunder. IHts^aaaaaMiNBteMpjpn^

IX

Nafther thitAgraement northe dhdosure by either Party ofthe Confidential Information or other Information to the other

J2^T-^*^!10!ir,**,2L^.pu^,^ "ny woduc *v"e " the. oeber or to reaqulrei Itteajr Partt eo dlsckssei amy partaaihar

inflation to the other. Mc*iijtotresAgreerrHrtstaHto


as matingeither Partythe agentofthe other.

o*V>aihlngunraaetodlhgrts<anf^

U.

"""'"*

This Agreementshall not be assbjaedwRhoutthe pdorwrfttoii oanse.it ofthe other Party.

MWnilESS WHEREOF, sheParties neveaiccuted cntaAgreemerrte* oftro^ceRntwmen above.


FOOT LOCKER

Pago 5 of5

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The Striper.
Type of Work: Visual Material
Registration Number / Date: VA0001936780 / 2015-01-05
Application Title: The Striper.
Title: The Striper.
Description: Electronic file (eService)
Copyright Claimant: Foot Locker Corporate Services, Inc. Address: 112 West 34th Street, New
York, NY, 10120, United States.
Date of Creation: 1987
Date of Publication: 1988-01-31

Nation of First Publication: United States

Authorship on Application: Foot Locker Corporate Services, Inc., employer for hire; Domicile: United
States. Authorship: 2-D artwork.
Rights and Permissions: Amy Gaven, Kelley Drye & Warren, LLP, 101 Park Avenue, New York, NY,
10178, (212) 808-7800, agaven@kelleydrye.com
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Retail Stores & Online Retail - Vizanl Technologies

Payments Biog

in

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'ddritactUs

Vizant is a financial consulting and advisory firm with a specialty focus in the area of financial payments We work with organizations to maximize the
efficiency of their payments environment and to attain the lowest possible cost to accept all types of financial payments. We are unlike any other
professional services firm, as we operate with a 100% results based performance pricing model,

What We Deliver

What We Do

Who We Are

wpsscaiPis- ^^
m
^fflfe QllCM

ijti

What We Think

Clients

jojuv-v ray

Hurnonci

Habitat

i*-.Jj^-.,...r..]i!.^

Mga

la Retail Stores &Online Retail

Retail Stores & Online Retail

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iZone Group

17th Street Photo

Jared Lang

5th Ave Textbook

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Jeffers

A&H Pharmaceutical Services

Jelly Belly Retail Stores

ABC Appliance

Jeromes Furniture Warehouse

Acor Orthopaedic

Jetson TV & Appliance Centers

Adams Fairacre Farms

Jordans Furniture Inc

Adoh Kiefer & Associates

Junonia

Advantage Plus Medical Supplies

Just Me Apparel Inc

Agaci

Justin Brands

Agri Co Op

K&L Wine Merchants

Alibris

K2 Corporation

Altex Electronics

Kentec

Alyce Designs Inc

Kids Foot Locker

AmeriMark Direct

Kiefer Swim Shops

Amoeba Music

King Par Corporation

Angel View Thrift Mart

Kinney Drugs Stores

Aqua Superstore Online Superstores

KMA Sunbelt Trading Corporation

Armstrong Garden Center

Kregel Parable Christian Stores

Armstrong Garden Centers

Kuhl Alfwear

Ashers Chocolates

La Porte Pharmacy

AuburnARTcom

Lady Foot Locker

Augusta Cooperative Farm Bureau

Lane Southern Orchards

Aztec Shops

LAT Sportswear

Bachmans

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Badcock Furniture West Palm Beach

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LeeBrant Jewelers

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Barnes & Noble

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Leo Ingwer

Baseball Express

Lews Smoke Shop

Bayway World of Liquors

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Bel Air Camera

LJ Thalmann Company

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Luis Martinez Cigar Company

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Lydias Professional Uniforms

Better Body Fitness of Montana

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Bike Line

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Marc Ecko Enterprises

Blyth

Masin's Fine Furnishings & Interior Design

Blythes Sport Shop Inc

MC Sales LLC

Bobs Stores Corporation

McChord Express Supply

Bodybuilding com

McGregors Furniture

Bon Ton Department Stores

Mell & Company

Boone Drugs

MFA

Bosselman

Miles Kimball Company

Boston Green Goods

Millennium Shoes Inc

BoutiqueFive

Mobile Systems Wireless

Bronners

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Bulbscom

Modern Display

Burberry Limited US

Money Clamp

BuyOnlineNow.com

Money Mizer Pawn & Jewelers

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CarolWright Gifts com

North Fort Lewis Express Supply

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Cassidys Hallmark Care Pharmacy

Ocean State Jobbers Inc

Chalet Nursery

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One Step Ahead

Chavis Furniture LLC

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Chelsea & Scott

Orrefors Kosta Boda

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Orscheln Farm and Home

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OSC Sports

Colfax Financial LLC

Oshoes

Columbia Beauty Supply

Otterbein University

Comp U Plus

Overstockcom

Cookieskids com

Oxyfresh Worldwide

Cooper & Company

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Copshoes com

Paoli Bike & Sport

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Cord Camera

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Cost Plus

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Pendleton Woolen Mills

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Countryside Cooperative

Perham Co Op Creamery

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Peter Glenn Ski & Sports

Cracker Barrel Convenience Stores

PGA Tour Stop

Customer One Co Op

Pike Nurseries Acquisition

CWDKidscom

Pink Crab

D&BSupply Company

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Dallas Gold & Silver Exchange

Pioneer Pool Products

Delias

Pitusa Tiendas por Departamentos

Design Toscano

Point Loma Express Supply

Dexclusive.com

Portland Nursery Company

Diplomatic Duty Free Shops of New York Inc

Powells Books

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PR Retail Stores

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Premier Garage Systems

DL Zimco Inc

Prime Resources

Docs Drugs

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Dr Leonards Healthcare Corp

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Dress For Success Houston TX

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Drugstore com

RC Wiliey Home Furnishings

Duane Reade

Ready Reading Glasses

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E Masin Furniture Company Inc

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Eakes

Riddles Jewelry

Ebuys

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eCommerce outdoors

Right Source

Elkhart Co Op Equity Exchange

Rivers Edge Products

Ellie

Robb & Stucky Limited

European California Furniture

Rocking P Incorporated

Events

Rogers Jewelry

Everfast

Ron Herman

ExpressTools.com

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Eye Mart Express

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Royal Copenhagen

Family Center

Rugs USA

Family Christian Stores

Rulands Used Office Furniture

Farm King

S&S Worldwide

Farmers Co Operative of El Campo

Sally Beauty Company

Farmers Cooperative

Sam Flax Stores

Fertilizer Company of Arizona

San Diego State University Bookstore

Fey Industries

San Francisco State University Bookstore

Flanners Home Entertainment

Schneidermans Furniture

Fleet Feet Sports & Chicago Running

Schuylkill Valley Sports

Fleet Wholesale Supply Company

SDE Crystal Springs Books

Floor & Decor Outlets of America Inc

Service Systems Associates Inc

Foot Locker

Servmart Express Supply

Foot Locker Corporate Services Inc

Sheplers Inc.

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Footaction

Shoe Roads Productions

Fort Lewis Express Supply

Shoe Sensation Inc

Four Season General Merchandise

ShoppersChoice com

Franklin Feed & Pet

Shurman Fine Papers

Fruit Company

Silpada Designs

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SKECHERS USA

Gardens Alive

Skinnycorp LLC

Gear Running Store

SM Ruland Corporation

General Store

Smokin Joes

George Jensen

Sport Shack

GM Gold & Diamonds

Sports Center

Goods Store

Stacks and Stacks

Goodwill Akron OH

Stampin Up

Goodwill Bakersfield CA

Standard TV and Appliance

Goodwill Buffalo NY

Star Furniture

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Stephen L La France Holdings SLLF

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Steve Regan Company

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Strategic Distribution LP

Goodwill Fredericksburg VA

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Goodwill Hagerstown MD

Swanson Health Products

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T4D UK Ltd

Goodwill Industries of Central Indiana

Tackle Direct

Goodwill Industries of Central Virginia Inc

Talbots Inc

Goodwill Industries of Denver

Tanger Factory Outlets Centers

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Tap Enterprises

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Taylor Gifts Get Organized

Goodwill Industries of Lower South Carolina

TD Associates

Goodwill Industries of Northwest Ohio Inc

TEquipment

Goodwill Industries of San Joaquin Valley

Texas EZPAWN

Goodwill Industnes of Upstate Midlands SC

Threadless

Goodwill Long Beach CA

Thrifty Drug Stores

Goodwill Maple Shade NJ

Time 4 Diamonds

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TIS Muncie College Book Store

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Tom James Company

Goodwill St Paul MN

Toolbarn com

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Tourneau

Govberg Jewelers

TROSA Furniture & Frame

Gracious Home

TROSA Tree Lots

Grange Co Op

Tweeter OPCO

Granite Furniture Company

Twister Group

Grass Pad

Ulta Salon Cosmetics & Fragrance

Greenway Cooperative

Uncommon Goods

Hamilton Farm Bureau Cooperative

United Farmers Cooperative

Hancock Fabrics

University Book & Supply

Hanna Andersson Corporation

University Book Store

Hardwater Clothing USA

University of Connecticut Co-op Bookstore

Harmony Computers

Upper Deck

Haynes Furniture Company

Vanity Shop of Grand Forks

Heartland Country Co Op

Vantage Apparel

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Helzbergs Diamond Shops

Vision Care Holdings

Herb Philipsons

Vitamin Shoppe Industries

Hibbett Sporting Goods

Walsh Bros

Holts Cigar Holdings

Wayland Baptist University Store

Home & Garden Party

Week

Home Town Pharmacy

Weirs Furniture Village

Hudson Trail Outfitters

Wheel & Sprocket

Hudsons Bay Company

White Flower Farm

Hudsons Furniture

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Contact the Financial Payments Expert Today!

http://vizanl.corn/clients/all-clients/by-category/retail-stores-online-retail[7/31/2014 4:37:31 PM]

t0OrttaCtiJS .:'

INVOICE

^kVlzant

Vizant - The Financial Payments Expert

Client

Name

Foot Locker Corporate Services, Inc.

Invoice No.

Address

3S43 Simpson Ferry Rd


Camp Hill, PA 17011

Date

City
Attention

Mr. Tate Fenner

FLCS-REF2

5/9/2014

Professional

Description

Cost Reduction

Rate

Services Fee

448,727.72
402,998.87

1,282,079.20 DurbinAnalysis - Qualification Errors IdentifiedInOct 2013 Report

35%

1,151,425.34

35%

Durbin Analysis - Qualification Errors for Jul 2013 - Mar 2014

TOTAL DUE $

Payment Terms

851,726.59

Payment due on receipt of invoice.


Unpaid balances willaccrue interest per agreement terms.

P.O. Box 1841

Remit To

Blue Bell, PA 19422

With the ever increasing cost of financial payment acceptance, many organizations are Implementing strategies to recoup and recover
their cost of acceptance.
Vizant has Implemented strategies to recoup acceptance costs for many of its existing clients including Fortune 100 companies, small

localand regional businesses, online retailers, universities, physician practices, medicaldevice companies, nan-profit institutions, and
travel and entertainment companies. Vizant would like to present your organization with customized solutions specific to your industry
and marketplace while maintaining compliance with regulations and alignment with organizational profit goals.

For more Information goto http^/vlzantcom/payment-blog/


Vizant - The Financial Payments Expert

Pennsylvania S lO.'iSB.XOOi

Washington 509.755.0621

nlarir 41fi.S<!4,l bf.ti

Date Ran=e

Cost Reduction Detail

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Total tfraftfkatton Errors for Jul 2013 - March2014

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Total Data FtYTO

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Debit Qualification Errors


Total tarfuctlonUaaPAVP $

muxam s

PAVD - Partial Refund

Invoice Cost Reduction Reconciliations

JJMiJtmjO
1JU8JB$9B .

Errors Less PAVD

WzantTediix*)*^ Confidential-5/9/2014

Debit Qualitication

K&L GATES LLP


618 WEST RIVERSIDEAVENUE
SUITE 300

K&L GATES

SPOKANE, WA 99201-5102
T +1 509 624 2100 F +1 509 456 0146 klgates.com

BY FIRST CLASS MAIL and EMAIL

SUBJECT TO FRE 408-ALL RIGHTS RESERVED

Edward T. Kang

J' Michael Keyes

123 S. Broad Street, Suite 1220

T +1 509 241 1527

Philadelphia, PA 19109

F +1 509 444 7863

Kang Haggerty &Fetbroyt LLC

mike.keyes@klgates.com

ekang@LawKHF.com

July 31,2014

Re: Foot Locker Corporate Services, Inc.


Amount Due Vizant Technologies, LLC
Your Letter dated July 22, 2014
Dear Mr. Kang:

We are litigation counsel to Foot Locker Corporate Services, Inc. ("Foot Locker"). We
are in receipt of your letter dated July 22, 2014, sent on behalf of Vizant Technologies, LLC
("Vizant"). Your client's demand for $944,456.40 has no basis in reality and showcases a
fundamental misunderstanding of the Consulting Agreement entered into by the parties on

May 31, 2013 ("Agreement"). Foot Locker has attempted in good faith to resolve its differences
with Vizant only to be subjected to concocted claims for consulting fees, unprofessional behavior
by the Vizant Management Team, and willful breaches of the Agreement. Your letter of July 22
is simply the last straw. Accordingly, pursuant to Section 8 of the Agreement, Foot Locker
hereby terminates the Agreement, effective immediately. Further, pursuant to Section 7 of the
Mutual Confidentiality Agreement dated May 31, 2013 ("Confidentiality Agreement") and
attached as Exhibit A to the Agreement, please promptly return all documents reflecting
Confidential Information, and all electronic or hard copies of such Confidential Information.

Finally, Vizant has intentionally and wilfully breached the Agreement and is engaging in
unfair competition and trademark infringement in violation of Sections 32 and 43(a) of the
Federal Lanham Act, 15 U.S.C. 1114, 1125(a). We hereby demand that Vizant immediately
remove from vizant.com and any other marketing collateral all references to Foot Locker, Foot
Locker Corporate Services, Inc. or the Foot Locker stylized logo, all of which Vizant was
expressly prohibited from using under Section 9 of the Agreement in the first instance. If we do
not receive written confirmation by August 4, 2014 at 5:00 p.m. (EDT), that you have removed
Foot Locker, Foot Locker Corporate Services, Inc. and the Foot Locker logo from vizant.com
and all associated marketing material, we will be left with no choice other than to pursue all legal
and equitable relief to which Foot Locker is entitled.
As for the claims set forth in your letter, we address each in turn.

klgates.com

K&L GATES

vKang u
Hld^T^Tr
Haggerty
& Fetbroyt LLC
Page 2
July 31, 2014

The "PAVD" Claim for S92.729.81

Vizant is not owed $92,729.81 as you assert in your letter.

The purported "cost

reductions" (upon which this fee is allegedly based) are not "directly attributable to PES's
Consulting Services" as required under the Agreement. See Section 1(h). As Vizant well knows,
in July 2013, Elavon migrated its PIN debit processing from Elan to Interlink. As a result ofthat
migration, the new processing system was calibrated so that Foot Locker was charged at the
lower rate beginning in July 2013 and on a going forward basis thereafter. Vizant notified Foot
Locker that there had been a $420,601.80 overcharge to Foot Locker, and was paid its 35%

consulting fee on April 15, 2014, after the refund was paid to Foot Locker by Elavon. Because
Elavon had already corrected its internal error prior to Vizant's review, though, Foot Locker is
not obligated to pay any further consulting fees related to this issue. For your consideration, we
attach as Exhibit A an email dated May 6, 2014, from Mr. Larry Hock, VP of Global Account

Management at Elavon. As Mr. Hock states, the issue with the PAVD overcharges was
"automatically corrected" when Elavon migrated from Elan to Interlink. We trust that this
explanation and email from Mr. Hock clarifies any misunderstanding on your client's part. We
consider this issue fully and finally resolved.
The "Unpaid Refunds" Claim for $851.726.59

Your client's May 9, 2014 Invoice No. FLCS-REF2 for consulting fees in the amount of
$851,726.59 is specious. In fact, after your client sent this invoice, Mr. Bizzaro admitted in a
follow-up telephone conversation that it was sent to Foot Locker "just to get its attention."
Further, Ms. Angie Grunte stated in her email of June 5, 2014 that "Vizant will issue a credit
memo for Invoice #FLCS-REF2 in the amount of $851,726.59" and that "Vizant will invoice
Foot Locker once it is identified that Foot Locker has benefited from any rebates or refunds

stemming from the debit card qualifications discrepancies" (emphasis ours). We attach as
Exhibit B Ms. Grunte's email, which you must not have reviewed in light of the allegations in
your letter of July 22. By your client's express admissions, Invoice No. FLCS-REF2 is
meaningless and carries no legal significance whatsoever.

Regardless of your client's admissions, the Invoice is also invalid in light of the express
terms of the Agreement. Section l(i) of the Agreement provides that "invoicing shall commence
when PES determines that some portion of its cost reduction recommendations have been

implemented on behalf of the Client and resulted in actual cost reduction." Section l(i)
(emphasis supplied). The Agreement further provides that "Client shall pay PES a Consulting
Fee for any Payment Processing Cost Reductions in PES's Cost Reduction Program that are
implemented and actually realized by Client during the Term of this Agreement" Agreement,
Section 5 (emphasis supplied). These provisions make it unambiguously clear that Vizant is not
owed any Consulting Fee until Foot Locker actually receives an economic benefit in the form of
either a refund or credit. The results of Vizant's "Durbin Analysis" has not been implemented,

and Foot Locker certainly has not realized any cost reductions or received any refunds from Visa,
MasterCard, or Elavon.

K&L GATES

F
H *J^
Kang Haggerty & Fetbroyt LLC
Page 3
July 31, 2014

Instead, here is what occurred to date with respect to this issue: On October 31, 2013,

Vizant presented Foot Locker with the so-called "Durbin Analysis" indicating that there were
possible overcharges totaling $1.6 million regarding regulated vs. non-regulated BIN ranges for
debit card processing (approximately $420,000 of those possible overcharges related to the
PAVD issue discussed above). Due to the size of the data set, Vizant, Elavon, and Foot Locker

all agreed that the data for one month-June 2013--would be examined by Elavon. After Elavon's
review, it validated the BIN Tables received from Visa and MasterCard and determined that there
were no overcharges to Foot Locker. There is no obligation for Foot Locker to do any further

investigation or due diligence with respect to this issue. We also consider this issue fully and
finally resolved.
The Alleged "Failure" To provide Payment Processing Cost Information

Contrary to the allegations in your letter, Foot Locker provided all of the information
required of it under the Agreement. Due to American Express and Discover making up a tiny
fraction of Foot Locker's total credit and debit card purchases (approximately 6% total), the

parties agreed that this data set would be sent to Vizant after Vizant completed its review of the
Visa, Mastercard and debitcard charges. Given that Foot Locker has nowterminated the contract
with Vizant, no such data will be provided.

As for your client's demand that it be given information regarding the Visa incentive
program, Foot Locker was not in a position to disclose information related to that program. As
Foot Locker previously explained, the documents provided to Foot Locker by Visa were
designated "confidential" and were provided to Foot Locker on the condition that the information
would not be shared with third parties. After inquiring whether Visa would allow Foot Locker to
share these incentive materials with Vizant, Foot Locker was informed that Visa would not waive

the confidentiality designations with respect to those documents. Vizant's continued demands
(including another improper one in your July 22 letter) are simply attempts to have Foot Locker
breach its agreement with Visa. As previously informed, Foot Locker was not~and is notwilling to breach that confidence.
Vizant's Breach of the Agreement and Confidentiality Agreement

It is Vizant~not Foot Locker-that has breached the Agreement and Confidentiality

Agreement. The Agreement prohibits Vizant from using "Client's logos, trademark, oridentity in
any manner including without limitation, in PES's Sales Presentation and Client's name in PES's
regular listing of clients." Agreement, Section 9. This provision was specifically negotiated by
Foot Locker and was an important, material part of the Agreement. Further, the Agreement

incorporates the Confidentiality Agreement. See Agreement, Section 7. The Confidentiality


Agreement provides that "neither Party shall disclose to any third party either the fact of the
Consulting Agreement between the Parties or any of the terms, conditions or facts with respect
thereto without the prior written consent of the other party." Regrettably, Vizant has violated
these provisions. The Foot Locker stylized logo is prominently displayed on your client's home
page, vizant.com. Foot Locker is also mentioned as a client elsewhere on your site. Enclosed as

K&L GATES

v H

'fvtT^Tr

Kang Haggerty & Fetbroyt LLC


Page 4
July 31,2014

Exhibit C are printouts from vizant.com where Foot Locker is referenced in violation of the

Agreements. Foot Locker is entitled to injunctive relief for these breaches. See Consulting
Agreement, Section 4.

The unauthorized use of the name Foot Locker Corporate Services, Inc., the Foot

Locker word trademark, and the Foot Locker stylized logo also constitutes unfair competition
and trademark infringement under the Lanham Act, 15 U.S.C. 1051 et seq. We hereby demand

that your client immediately cease and desist from any further use of the name Foot Locker
Corporate Services, Inc., the federally-registered trademark Foot Locker as depicted in U.S.
Trademark Registration No.3,810,824, and the stylized version of the Foot Locker logo as
depicted in U.S. Trademark Registration Nos. 85,832,195, 85,800,132, and 85,452,377. All
references to Foot Locker Corporate Services, Inc., Foot Locker, the stylized Foot Locker logo,
and any other trademarks or logos of Foot Locker must be immediately removed from any
website and marketing collateral by no later than August 4. 2014, with written confirmation of
your client's compliance received by Foot Locker by that date as well.
Conclusion

In sum, Foot Locker has no intention of paying your client fees for services never

provided and for refunds and credits never realized by Foot Locker. Foot Locker has no interest
in continuing to do business with Vizant, which has proven to be unprofessional, and
intentionally engaging in wilful breaches of the parties' Agreements. The Consulting Agreement
and Mutual Confidentiality Agreements are hereby terminated, effective immediately. We look
forward to receiving confirmation that Vizant has removed all references to Foot Locker and the
Foot Locker stylized logo from vizant.com and any other medium.

In sending this letter, Foot Locker expressly reserves all rights and does not waive any
claims or defenses it may otherwise assert against Vizant.
Very tru

JMK/nkt
Enclosures

cc: Client

EXHIBIT A

From: "Hock, Larry" <Larry.Hock@elavon.com>

To:

"Thompson, Linda" <Linda.Thompson@elavon.com>, "Fenner, Tate"

<tfenner@footlocker.com>
Date: 05/06/2014 05:10 PM

Subject:PADD clarification

Tate,

Per our conversation just wanted to clarify. Elavon did not make programming changes to correct the
issue we discovered during the Vizant review. The issue was automatically corrected when we migrated
Interlink pin debit processing from Elan to Interlink direct. Elavon did not realize there was an issue at
the time, but once the error was uncovered we confirmed it was corrected with the migration. The
correction took place during July of 2013 before the Vizant review ever began.
I hope this helps clarify the issue and the correction.
Please let me know if you would like to discuss.

Regards,

Larry Hock
VP - Global Account Management
Elavon

(513) 254-7363

The information contained in this e-mail and in any attachments is intended only for the person or entity
to which it is addressed and may contain confidential and/or privileged material. Any review,
retransmission, dissemination or other use of, or taking of any action in reliance upon, this information
by persons or entities other than the intended recipient is prohibited. This message has been scanned
for known computer viruses.

The information in this e-mail, and any attachment therein, is confidential and for use by the addressee
only. If you are not the intended recipient, please return the e-mail to the sender and delete it from
your computer.

Although the Company attempts to sweep e-mail and attachments for viruses, it does not guarantee
that either are virus-free and accepts no liability
for any damage sustained as a result of viruses.

EXHIBIT B

From: Angie Grunte <agrunte@vizant.com>


To:
"tfenner@footlocker.com" <tfenner@footlocker.com>,
"acollins@footlocker.com" <acollins@footlocker.com>,

Cc:

Joseph Bizzarro <jbizzarro@vizant.com>, Kimberly Dallin


<kdallin@vizant.com>

Date:

06/05/2014 06:50 PM

Subject:Vizant & Foot Locker: Next Steps

Tate and Ann Marie,

Thank you again for your time this morning. Joe, Kim and Iappreciated you sharing your concerns and
felt the conversation was productive. We are committed to our partnership with Foot Locker and look
forward to continuing with our efforts on your behalf. In orderto proceed, we have prepared an
amendment to the existing agreement which will serve to clearly establish the expectations for both
Vizant and Foot Locker as we continue addressing the cost reduction and cost recovery opportunities
identified for your organization.

Specifically, this amendment incorporates the following topics from this morning's discussion:

I
Vizant will issue a credit memofor Invoice #FLCS-REF2 in

the amount of$851,726.59


o Vizant will invoice Foot Locker once it is identified that
Foot Locker has benefited from any rebates or refunds stemming
from the debit card qualifications discrepancies

The Billing Term will be extended foran additional 12

I
|

I
f

months enabling Vizant and Foot Locker towork together toimplement


therecommended strategies and solutions outlined in Vizant's

|
|

Financial Payments Analysis and Recommendations Report and Durbin

Analysis &Qualification Project Report

In exchange, Foot Locker will agree to pay all outstanding


PAVD invoices and continueto compensate Vizant for all PAVD related

{
{

cost reductions realized during the Billing Term

Foot Locker will also provideVizant with the financial and

key business terms of all of its payment acceptance related

agreements as well as documentation relating to any financial


incentives Foot Locker has received or will receive from its partners

f
|

(Visa, MasterCard, American Express, Discover, Elavon or any of their

successors)

by permitting Vizant to engage directly with its partners, Visa,

Foot Locker agrees to enable and support Vizant's efforts

MasterCard, Discover, American Express and Elavon, as we address the

Card Brand and Debit Qualificaiton iniatitives

Using this as ourfoundation, we are confident that together Vizant and Foot Locker will move quickly to
capture the available opportunities and generate substantial value for both organizations. Please review

j
S

the enclosed amendment and do not hesitate to contact me with questions. Joe, Kim and Ilook forward

to discussing the amendment and nextsteps in this process with your Tuesday, June 10th at 3 pm EST.

Best regards,
Angie Grunte
Senior Vice President

Vizant Technologies | www.vizant.com


Mobile | 509.954.6432
agru nte@ viza nt.com

The information contained in this email is proprietary in nature. It is the product of intellectual property
owned by Vizant Technologies LLC.
Pursuant to our Professional Services Agreement, if the strategies and solutions set forth herein result
in cost reductions, cost eliminations or cost recapturing realized by Client, no matter whether Vizant or
Client effected said reduction, elimination or recapturing, then Vizantwill invoice in accordance with
said Agreement.(See attached file:
FootLocker_Amendment_060514.doc)
The information in this e-mail, and any attachment therein, is confidential and for use by the addressee
only. Ifyou are not the intended recipient, please return the e-mail to the sender and delete it from
your computer.

Although the Companyattempts to sweep e-mail and attachments for viruses, it does not guarantee
that either are virus-free and accepts no liability
for any damage sustained as a result of viruses.

EXHIBIT C

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Sheplers Inc.

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Retail Stores & Online Retail - Vizant Technologies


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Shurman Fine Papers

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Skinnycorp LLC

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George Jensen

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Swanson Health Products

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Retail Stores & Online Retail - Vizant Technologies


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Contact the Financial Payments Expert Today!

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?06iitacrus:

Retail Stores & Online Retail - Vizant Technologies

Locations

Brandywine
5 Chnstv Dn
Spokane WA
P: 610.358.1003

P: 509.755.0621

F: 866.526.5001

F: 866.464.4869

120 Adelaide St West


Suite 2500

Lonaon.

Toronto ON M5H 1T1

Umtea Kingdom

SE1 ?RI~

P: 0203.283.4412
P: 416.644.1566

F: 866.438.7813

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INVOICE

^Vizant

Vizant- The Financial Payments Expert

Foot Locker

Name

Foot LockerCorporate Services, Inc.

Invoice No.

Address

Date

City

3543 Simpson Ferry Rd


Camp Hill, PA17011

Attention

Tate Fenner

FLCS: 9 -12

8/31/2014

Professional
Cost Reduction

S
S
S

127,841.98
511,744.59
453,788.40
346,236.00

Description

Rate

PAVD Qualification Errors far Apr -Jul 2014

35%

Durbin Analysis-Qualification Errors forApr-Jul 2014


Card Network Interchange Incentives forApr -Jul 2014
Visa FANFIncentivesforApr-Jul 2014

3596
3594
3596

Sendees Fee

$
$
$
$

TOTAL DUE $
Payment Terms

44,744.69
179,110.61
158,825.94
121,182.60

503,863.85

Paymentdue on receiptofinvoice.
Unpaid balances will accrue interest per agreement terms.

Remit To

5 Christy Drive, Suite 202


BrandywIneTwo
Chadds Ford, PA 19317

With theever increasing costoffinancial payment acceptance, many organizations areimplementing strategies to recoup and
recover their cost of acceptance.

Vizant has implemented strategies to recoup acceptance costs formany ofits existing clients including Fortune 100 companies,
small local and regional businesses, online retailers, universities, physician practices, medical device companies, non-profit
institutions, andtraveland entertainment companies. Vizant would like to presentyour organization with customized solutions

specific to your industry and marketplace while maintaining compliance with regulations andalignment with organizational
profit goals.

For more Information go to http://vlzant.com/payment-blog/


Vizant - The FinancialPayments Expert
Pennsylvania 610.333.1003

Washington 509.755.0621

Ontario 416,644.1566