Exhibit 10.12
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PROFESSIONAL SERVICES AGREEMENT
This Agreement is entered into as of this 1st day of July, 2000199__, by
and between Metavante Corporation ("Metavante") and Xxxxxxxx & Xxxxxx
Corporation, its subsidiaries and affiliates ("Customer").
In consideration of the mutual covenants described herein and other good
and valuable consideration, the receipt and sufficiency of which are expressly
acknowledged, the parties agree as follows:
1. Services. Metavante agrees to provide to Customer the consulting and
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professional services described on the Statements of Work ("SOWs") executed by
both parties. The exact description of the specific services to be rendered by
Metavante from time to time shall be as specified on the SOWs, as defined below.
The SOWs shall incorporate, and shall be specifically bound by, the terms and
conditions of this Agreement.
2. Statement of Work. Each SOW will be generated by Metavante and shall
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detail the specific services to be supplied by Metavante for any given
transaction. Each SOW shall contain a detailed explanation of the project, the
service to be performed, deliverable specifications, personnel requirements and
any additional pertinent information. Customer shall be deemed to have accepted
the deliverable upon demonstration by Metavante that the deliverable performs in
substantial compliance with the specifications set forth in the applicable SOW.
3. Term. This Agreement shall remain in full force and effect until June
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30, 2005. Notwithstanding the foregoing, either party may terminate this
Agreement following a material breach by the other party that remains uncured
after ten (10) days' written notice from the non-defaulting party.
4. Fees and Payment.
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4.1 Customer agrees to pay Metavante for services provided and
expenses incurred on the basis and at the rate specified in each SOW, provided
that Metavante agrees to perform services at discounts to Metavante's then
current standard rates as described in Exhibit A hereto. Payment shall be due
within thirty (30) days after the date of Metavante's invoice. If Customer fails
to make timely payment, Metavante shall have the right to cease all work on such
SOW, without terminating the Agreement, until Metavante has received all past
due payments.
4.2 Disputed Amounts. If Customer disputes any charge or amount on
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any invoice and such dispute cannot be resolved promptly through good faith
discussions between the parties, Customer shall pay the amounts due under this
Agreement less the disputed amount, and the parties shall diligently proceed to
resolve such disputed amount. An amount will be considered disputed in good
faith if (i) Customer delivers a written statement to Metavante on or before the
due date of the invoice, describing in detail the basis of the dispute and the
amount being withheld by Customer, (ii) such written statement represents that
the amount in dispute has been determined after due investigation of the facts
and that such disputed amount has been determined in good faith, and (iii) all
other amounts due from Customer that are not in dispute have been paid in
accordance with the terms of this Agreement.
4.3 Terms of Payment. Metavante shall present Customer with an
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invoice for all recurring fees and for all one-time fees in the month following
the month in which such services are performed, no later than the twentieth
(20th) day of each calendar month. Customer shall pay the amount of such invoice
within five (5) business days following receipt of Metavante's invoice. To
effect payment, Customer hereby authorizes M&I to initiate debit entries from
and, if necessary, initiate credit entries and adjustments to Customer"s account
at the depository institution designated in the ACH Authorization Agreement
attached hereto as Exhibit B, which shall be executed by Customer
contemporaneously with the execution of this Agreement. Customer shall also pay
any collection fees and damages incurred by Metavante in collecting payment of
the charges and any other amounts for which Customer is liable under the terms
and conditions of this Agreement.
5. Independent Contractor. Metavante and Customer are independent
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contractors. Neither party or any of its employees, agents or contractors shall
be deemed for any purpose to be an employee or agent or contractor of the other
party. Each party shall at all times act independently and at no time shall
either party make any commitment or incur any charges or expenses for or on
behalf of the other party, except in accordance with the terms of this
Agreement.
6. Taxes. Customer shall be solely and exclusively responsible for the
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payment of required federal, state and local taxes arising from or relating to
the services rendered hereunder, except for taxes related to the net income of
Metavante and any taxes or obligations imposed upon Metavante under federal,
state and local wage laws. Notwithstanding the foregoing, if Metavante is
required to keep an employee on assignment at Customer's location for twelve
(12) consecutive months or more, Customer shall reimburse Metavante for the
estimated costs associated with grossing up such employee's income to compensate
for all tax consequences associated with such twelve (12) month or more
assignment.
7. Confidentiality and Ownership.
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7.1. Metavante and Customer agree to preserve the confidentiality of
any and all materials and information (collectively, "Materials") furnished by
either party in connection with this Agreement. Such Materials shall include,
without limitation, studies, fees and terms of this Agreement, plans, reports,
surveys, analyses, and/or projections. The provisions of this Section 77.1 shall
not apply to any information which: (a) is independently developed by the
receiving party, provided the receiving party can satisfactorily demonstrate
such independent development with appropriate documentation; (b) is known to the
receiving party prior to disclosure by the disclosing party; (c) is lawfully
disclosed to the receiving party by a third party not under a separate duty of
confidentiality with respect thereto to the disclosing party; or (d) otherwise
is publicly available through no fault or breach by the receiving party.
7.2. Metavante and Customer intend and agree that Metavante shall
retain title and all other ownership and proprietary rights in and to any
computer code, computer programs, programming or processing procedures or
techniques, methods, ideas, concepts, or know-how ("Metavante Proprietary
Information") developed by Metavante in connection with its performance of
services to Customer under this Agreement. Such ownership and proprietary
rights shall include, without limitation, any and all rights in and to patents,
trademarks, copyrights, and trade secret rights. Metavante and Customer agree
that Metavante Proprietary Information is not "work for hire" within the meaning
of U.S. Copyright Act 17 U.S.C. Section 101.
8. Disclaimer of Warranty; Limitation on Liability.
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8.1. Metavante warrants that all Services provided to Customer herein
shall be performed in a workmanlike manner by qualified, trained personnel.
Metavante MAKES NO OTHER WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE
SERVICES PROVIDED UNDER THIS AGREEMENT. Metavante HEREBY EXPRESSLY DISCLAIMS THE
EXISTENCE OF ANY OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
8.2. Metavante's total liability under this Agreement, whether arising
out of or relating to the services provided by it pursuant to the same, shall
not exceed the total amount of the fees paid by Customer for the relevant SOW.
This limitation of liability shall apply regardless of the cause or form of
action, including without limitation, claims under breach of contract or tort.
Under no circumstances shall either party be liable to the other party for lost
profits or business opportunities, or any other special, indirect,
consequential, punitive or incidental damages arising out of or relating to the
first party's performance, or failures in the performance, of its obligations
hereunder.
9. Miscellaneous.
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9.1 Notices. Any notices provided for in this Agreement shall be
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given in writing and transmitted by personal delivery of prepaid first-class
U.S. mail or by facsimile, addressed as follows:
Metavante: Metavante Corporation Xxxxxxxx & Ilsley Corporation
0000 Xxxx Xxxxx Xxxx Xxxx 000 Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxx XX 00000 Xxxxxxxxx XX 00000
Attention:_______________________ Attention: _______________________
Fax No:__________________________ Fax No: __________________________
cc: Xxxxxx X. Xxxxxx
Senior Vice President and General Counsel
9.2 Assignment. Metavante and Customer may not assign this Agreement,
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or any of their rights or obligations hereunder, without the prior written
consent of the other party, which consent shall not be unreasonably withheld.
9.3. Force Majeure. Except for payment of sums due under this
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Agreement, neither party shall be deemed to be in default of any provisions of
this Agreement or for any failure in performance, resulting from acts or events
beyond the reasonable control of such party. Moreover, Metavante shall not be
responsible for any failures or delays in its provision of Services hereunder to
the extent caused by Customer's failure to fulfill one or more of its
responsibilities as set forth in any SOW attached to this Agreement.
9.4. Governing Law. This Agreement shall be governed, interpreted,
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construed, and enforced in accordance with the internal laws of the State of
Wisconsin, United States of America
9.5. Severability. If any provision, clause, or party, or the
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application of this Agreement is held illegal or otherwise unenforceable, the
remainder of this Agreement or the application of such provision, clause, or
part under other circumstances shall remain unaffected.
9.6. Legal Expenses. If any legal action is brought be by either party
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to this Agreement against the other party regarding the subject matter hereof,
the prevailing party shall be entitled, in addition to any other rights and
remedies it may have, to reimbursement for its expenses, including court costs
and reasonable consultants', experts' and attorneys' fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
METAVANTE CORPORATION XXXXXXXX & ILSLEY CORPORATION
By: ______________________________________ By: _________________________________________
Name: Xxxxxx X. Xxxxxxxxxx Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer Title: Chairman and CEO
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Index to Exhibits
Exhibit A Discounts to Metavante's Current Standard Rates
The above exhibit has been omitted. This exhibit will be furnished
supplementally to the Securities and Exchange Commission upon request.
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