FMI NCR Connected Payments Update
-Please see below and attached information and recommendations from the Food Marketing Institute on the status of the NCR Connected Payments problem that has been going on since late August. FMI has been working with the National Grocers Association (NGA) and has been in close contact with NCR to resolve this issue as soon as possible and get answers to questions posed by the food industry. Note the suggestions by their hired counsel that retailers should take to protect themselves. We will continue to send you information as received. Please contact the office if you have any questions.
NCR Connected Payments
We are aware that many of our members have had problems with NCR Corporation’s (“NCR”) Connected Payments system. Starting in late August, NCR Connected Payments has gone off-line for periods of time on multiple occasions. The most recent significant incident of which we are aware occurred on September 24th. These repeated failures have resulted in problems at our members’ stores including transactions for which payment has not been received, multiple billing for the same transactions, customers incurring bank fees due to multiple billings, abandoned transactions in the store due to delays, customer complaints, product losses due to customer abandonment, and excessive staff time spent trying to address these issues, among other problems.
The problems with NCR Connected Payments are troubling and unacceptable to us – and we know they are to our members. These problems have been compounded by delayed and inadequate communications from NCR about these issues.
We also are waiting for answers about what NCR will do to help resolve the problems these outages have already caused. Will businesses be reimbursed for their losses? Will customers be reimbursed for duplicate charges and bank fees? When will reimbursement be made? Typically, mistakes made by companies like NCR are rectified quickly, but that has not occurred this time. All of this has raised our level of concern.
Businesses may want to protect themselves by taking steps necessary to pursue NCR for the losses. Contracts between merchants and NCR may specify the steps to take in order to pursue claims against NCR. We urge you to review your contracts and talk to legal counsel about how best to protect your rights.
The example of an NCR contract that we have seen states that businesses should provide “prompt written notice” of any legal claims to NCR. Your contract may or may not include that language, but you should check to see whether it does. You can provide that notice even if you do not know everything about your total losses. Many of you may still be trying to investigate the NCR outages to determine the extent of the problems they have caused. Below we have included a sample notification letter that might be appropriate for you to send to NCR depending upon your individual situation and contract. Note that you should tailor the letter to your situation. And, of course, you should follow the course of action you deem appropriate to protect your rights.
Please note that the sample contract counsel has reviewed requires written notice to be sent to three different places: 1) to your local NCR account representative; 2) to NCR Corporation’s General Counsel; and 3) by e-mail to email@example.com. Please check your contract and ensure you send the notice as it specifies.
Doug Kantor of Steptoe & Johnson LLP has been advising FMI and NGA on this issue. He can also be retained by you if you would like to discuss your individual situation with him at (202) 429-3775 or firstname.lastname@example.org.
We are committed to helping you get the information you need regarding this situation with NCR. We have strongly urged NCR to provide more information and will continue to do so.
[Name and address of local NCR account representative]
RE: Notice of Claims
Dear [NCR local account representative]:
roblems with NCR Connected Payments caused by outages and/or mistakes in processing transactions due directly to failures in NCR’s Connected Payments service.
As a direct and proximate result of NCR’s actions or inactions, the problems with your service, among other things, prevented us from receiving payment on some transactions, led some transactions to be abandoned, led customers to leave our stores due to delays, resulted in multiple billings for customers for the same transaction, resulted in customers being charged bank fees due to multiple billings, required staff time (including overtime) from our personnel to resolve, and seriously harmed our goodwill with our customers, all in violation of your contract with us[DK2] .
We seek reimbursement from you for these losses, the full amount and extent of which we are still determining. Please confirm within X[DK3] days that you will take responsibility for these losses and reimburse us.
Cc: General Counsel/Notices
3097 Satellite Blvd.
Duluth, GA 30096
Via electronic mail - email@example.com
[DK1]Add dates this occurred. We are aware of outages on August 28, 2015 and September 24, 2015 but have heard there may have been additional incidents as well.
[DK2]These are examples. Use only the ones – as well as any not included here – that apply to your situation.
[DK3]You should allow NCR a reasonable time, not less than 7 but not more than 20 days, to respond to your letter.
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