EXHIBIT 10.26
FORM OF
AUTOMATED TELLER MACHINE
CASH AGREEMENT
THIS AGREEMENT is made this __th day of _____, ____, by and between
________________________, a _________ corporation, with an office at
_______________________________________ ("Company"), and DELUXE ELECTRONIC
PAYMENT SYSTEMS, INC., with an office at 000 Xxxx Xxxxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000 ("Deluxe").
RECITALS
A. Company intends to deploy ATMs in ___________________________
locations _________________, which ATMs are or will be owned by
Company or others and connected to various credit card and debit card
networks (collectively, the "Systems").
B. Company desires to have Deluxe provide Cash Services required to
operate certain of the ATMs located on _________________________, and
other _______________ site(s) as hereinafter or heretofore designated
by Company or such other locations as mutually agreed upon by the
parties, and Deluxe is willing to provide Cash Services to Company
upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the promises set forth
below, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1. Definitions. Except as otherwise specifically indicated, the
following terms shall have the following meanings in this Agreement (such
meanings to be applicable equally to both the singular and plural forms of the
terms defined):
Automated Teller Machine or ATM means a device which satisfies all
Systems requirements and technical specifications applicable thereto
located at _________________________________ and at which a Cardholder may
initiate and perform an entire set of ATM Transactions.
Card means a credit card, charge card, bank card or debit card that is
issued by a member of any Systems Issuer with the prior express written
approval of a financial institution.
Cardholder means the person who (i) maintains or is authorized to
access an account with an Issuer (and if such account is maintained with an
Issuer in the name of, or may be accessed by, more than one person, all of
such persons), and (ii) uses a Card to originate a Transaction.
Cash Services means the services furnished by Deluxe in supplying the
cash for one or more of the Company's or Merchant's ATMs.
Change in Control shall mean (i) any merger, consolidation or share
exchange of the Company with another entity under circumstances such that,
immediately after such transaction, the shareholders of the Company
immediately before the transaction own less than a majority of the voting
power of the surviving or acquiring entity except that there shall be no
change of control in the event the Company becomes public and its shares
are traded on any local or national market unless such shareholders own
less than 20% of the voting power; (ii) individuals who either (a) are
members of the Board of Directors of the
Company on the date of this Agreement, or (b) are subsequently appointed as
directors of the Company by, or on the recommendation of, a majority of the
directors of the Company referred to in the foregoing clause (a), cease to
constitute a majority of such Board; or (iii) any sale of all or a majority
of the value of the property, assets, business, income or
revenue-generating capacity, or goodwill of the Company.
Deposit Account means the account or accounts established by Deluxe
into which all credits for cash withdrawn from the ATMs for which Deluxe
provided cash are deposited, and from which no sums may be withdrawn
without the authorization of Deluxe.
Designated Bank means any and all bank(s) listed in Section 2.3 of
this Agreement or as otherwise notified to Company by Deluxe from
time-to-time hereunder and at which Deluxe will deposit cash in accordance
with Section 2.3 of this Agreement.
Issuer means a Systems member that issues Cards to Cardholders for use
in performing Transactions.
Item means the electronic messages which communicate and effect a
Transaction between an Issuer and its Cardholder through the use of a
Terminal.
Member means a member of a System.
Merchant means an individual or entity which owns or leases an ATM and
which contracts with Company for some or all of its services, including
processing and Cash Services.
Network Sponsor means an entity that is a member of the correspondent
network that permits Company to utilize the System.
Participant means an Issuer, Acquirer, Processor, ISO, Cardholder or
Deluxe.
Network means any automatic transaction machine or cash dispensing
machine network in which a Network Sponsor participates and which transmits
through the System.
Processing Services means those services which are necessary to
operate an ATM in accordance with the requirements of the Systems,
including without limitation transaction processing, Settlement, fees,
Systems access, Cardholder deposit resolution, ATM support, Transaction
reporting to Systems, electronic authorization, links to Networks,
transaction switching, and other support services accessed by using certain
plastic cards with magnetically encoded stripes issued by financial
institutions to their account holders allowing such account holders to
perform certain banking, financial and purchase Transactions.
Processor means a company which contracts with Company to provide
Processing Services. The company providing such Processing Services, for
all Terminals subject to this Agreement is Deluxe Electronic Payments
Systems, Inc.
Regulatory Authority means, as the context requires, any Systems, the
State of Minnesota Banking Department, the Office of Thrift Supervision,
the Federal Deposit Insurance Corporation, the Federal Reserve Board, and
any other federal or state agency having jurisdiction over Deluxe or
Company.
Rules means the Operating Rules and Procedures of any Systems or
Regulatory Authority as the same may be amended or supplemented from time
to time.
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Settlement means the movement of funds between Participants in
accordance with the Rules.
Settlement Bank means a financial institution designated by Deluxe
from time to time as the depository agent for Settlement.
System means the credit card and debit card networks system of
transmitting Items and other electronic messages and Settlement of
Transactions between Participants.
Terminal means an Automated Teller Machine or ATM.
Transaction means an ATM Transaction which is initiated at a Terminal
through the use of a Card and a Cardholder's personal identification number
("PIN") and is routed through a System.
ARTICLE II
DUTIES AND WARRANTIES OF THE PARTIES
Section 2.1. Deployment of ATMs. Company intends, from time to time, to
install for its own account or for Merchants, ATMs in _______________ and to
provide Cash Services for such ATMs, all in accordance with a separate written
agreement(s) between Company and ________________. Company shall use its best
efforts to give Deluxe a thirty (30) day prior notice of each new ATM location
for which Company requests that Deluxe provide Cash Services hereunder. Company
shall at all times provide Deluxe with accurate up-to-date information
concerning the location, identity and owner of each ATM for which Company
requests that Deluxe provide Cash Services. Deluxe shall not be required to
provide Cash Services for an ATM until Company has provided such information
concerning the ATM to Deluxe and until the expiration of such 30 day period.
For each ATM for which Company requests that Deluxe provide Cash Services,
Deluxe shall be the exclusive provider of Cash Services to such ATM. Company
warrants and covenants that, in connection with the Cash Services provided by
Deluxe hereunder, the cash provided by Deluxe shall not in any manner be
commingled with the cash of any other party.
Section 2.2. Conditions Precedent. As conditions to providing Cash Services
as provided for in this Agreement, and for the purpose of protecting Deluxe's
ownership of the cash provided by it, Deluxe will require, in its sole
discretion, that it be a party to or a beneficiary of Company's agreements with
its armored car carrier(s), for the purpose of assuring that funds or charges
due hereunder will be properly transferred to Deluxe's Deposit Account and that
cash supplied by Deluxe will be properly routed. Deluxe shall also be named as a
loss payee on any insurance policy maintained by the armored car carrier for the
benefit of Company.
Section 2.3. Cash Services. Deluxe shall provide Cash Services under this
Agreement to Company in accordance with and subject to the terms and conditions
of this Agreement, including but not limited to this Section 2 and with Section
3 of this Agreement below.
a) For the purposes of this Agreement, "Designated Bank" shall mean: (i)
for the States of ___________________________________________________
___________________; (ii) for the States of __________________________
___________________________; (iii) for all other States, any such
bank as is designated in writing to Company by Deluxe; and (iv) any
bank that Deluxe may in the future by written notice to Company
substitute in lieu of any bank named above for any specific State(s),
or name as an additional bank for purposes of this provision for any
specific State(s).
b) All funding supply requests by Company (each, a "Cash Order") shall be
sent via telecopier to Deluxe at 000-000-0000, Attention: Xxx Xxxxxxx,
or sent via electronic mail, or sent to such other contact as Deluxe
may notify Company in the future in writing. All Cash Orders must be
made in writing and must (i) specify the amount of cash
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requested, and the date and Designated Bank location of pick up; and
(ii) be made in accordance with written procedures to be provided by
Deluxe to Company within thirty (30) days of execution of this
Agreement ("Cash Order Procedures"). The Cash Order Procedures shall
be deemed a part of and incorporated into this Agreement and may be
modified from time-to-time by Deluxe upon written notice to Company.
c) Deluxe shall transfer funds as needed hereunder to meet requests for
Cash Services as permitted hereunder to Designated Bank(s). For each
Cash Order, Deluxe shall notify the Designated Bank(s) of the date of
pick up, dollar amount and courier location number in accordance with
Designated Bank procedures. Company shall notify its courier of the
Designated Bank location, pick up date and dollar amount to be picked
up for each Cash Order and shall arrange for such funds to be
retrieved from the respective Designated Bank(s) by couriers
reasonably satisfactory to Deluxe and stocked in the appropriate ATMs.
Company covenants that all such couriers shall be bonded and insured
against loss, theft or destruction of such funds.
Section 2.4. Authority of Company. The authority of Company shall extend no
further than is expressly stated in this Agreement. It is the intent and purpose
of this Agreement that Company shall be and at all times remain only an
independent contractor as that term is legally understood and construed, and
nothing herein contained shall be construed or inferred to create the
relationship of employer and employee, partnership, joint venture partner,
agency, consultant or any other relationship between Deluxe and Company.
Section 2.5. Company's Warranties, Representations and Disclosures. Company
warrants and represents to Deluxe as follows:
a) This Agreement is valid, binding and enforceable against Company in
accordance with its terms.
b) Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the state of its incorporation and
authorized to do business in each state in which the nature of
Company's activities make such authorization necessary or required.
c) Company has the full power and authority to execute and deliver this
Agreement and perform all of its obligations hereunder. The provisions
of this Agreement and the performance of Company of its obligations
hereunder are not in conflict with Company's Articles of
Incorporation, By-Laws, or any agreement, contract, lease or
obligations to which Company is a party or by which it is bound.
d) There is not now pending or threatened against Company, any litigation
or proceeding, judicial, tax or administrative, the outcome of which
might materially adversely affect the continuing operations of
Company.
Section 2.6. Deluxe's Warranties, Representations and Disclosures. Deluxe
warrants and represents to Company as follows:
a) That it has sufficient cash to deploy for the Cash Services
contemplated and agreed to pursuant to this Agreement, and is able to
deliver such cash within the time for which it has contracted
hereunder.
b) This Agreement is valid, binding and enforceable against Deluxe in
accordance with its terms.
c) Deluxe is a corporation duly incorporated, validly existing and in
good standing under the laws of the state of its incorporation and
authorized to do business in each state in which the nature of
Deluxe's activities make such authorization necessary or required.
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d) Deluxe has the full power and authority to execute and deliver this
Agreement and perform all of its obligations hereunder. The provisions
of this Agreement and the performance of Deluxe of its obligations
hereunder are not in conflict with Deluxe's Articles of Incorporation,
By-Laws, or any agreement, contract, lease or obligations to which
Deluxe is a party or by which it is bound.
Section 2.7. Company's Additional Covenants. Company covenants and agrees
with Deluxe as follows:
a) It will comply with its agreement with the Member(s) and all rules and
regulations promulgated by Systems and all other Rules and Regulatory
Authorities which govern Company's actions or the specific market
where Terminals are located. Company shall be responsible for all
costs, damages, penalties or fines arising out of or relating to a
failure of Company to promptly comply with any of the foregoing.
b) Company shall be responsible for all fees and expenses incurred in
connection with the actions or operations of Company and all fees and
expenses payable to third parties in connection with the Cash Services
and Settlement, including wire fees; fees, expenses and service
charges charged by any Designated Bank, any correspondent bank, or any
Federal Reserve Bank; Settlement charges; Processor charges; and fees
or charges due to any armored car carrier. Nothing herein shall be
construed to make Deluxe liable for any compensation, fees or expenses
due to or which are the responsibility of Company.
c) It will cooperate with Deluxe to reconcile all accounting relating to
the Cash Services and the payment of compensation fees and expenses,
and will, as reasonably requested by Deluxe, provide an accounting for
all disbursements or deployments of cash. Additional Company
responsibilities in this regard are set forth in Exhibit A. Company
shall maintain separate and distinct accounting of Cash Services
provided under this Agreement and Cash Services provided by Deluxe to
Company under the Prior Agreement.
d) The Company shall not use, and shall not permit the use of, cash
supplied by Deluxe pursuant to this Agreement for any purpose other
than stocking of Terminals which are owned or operated by American
Stores and/or such other terminals to which Deluxe has agreed in
writing to supply cash.
e) The Company shall not intentionally permit any cash supplied by Deluxe
pursuant to this Agreement to be subject to any liens, claims and
encumbrances of which the Company is, or should be, aware.
f) The disclosure of proprietary and/or non-public information pertaining
to Deluxe and/or its customers could have a detrimental effect on the
business of Deluxe. The Company will hold all such information that it
receives in the strictest confidence and will not disclose the same to
any person or entity outside the Company and will not disclose the
same to any person within the Company except on an "as needed" basis
and except to the extent that (i) Deluxe authorizes the Company in
writing to disclose such information; (ii) Deluxe releases such
information to the public; (iii) a court or governmental agency
lawfully orders the Company to disclose such information, and the
Company has given Deluxe notice of the order in time for Deluxe to
contest it; (iv) such information becomes generally available to the
public other than as a result of disclosure by the Company; (v) the
Company already knew such information or independently developed it
from sources other than Deluxe; or (vi) such information becomes
available to the Company on a non-confidential basis from a source
other than Deluxe which is entitled to disclose it. Nothing contained
in the foregoing shall be deemed to permit the Company to disclose any
confidential information that it received from Deluxe prior to the
date of this Agreement. Nothing herein, however, shall restrict the
ability of the Company to disclose
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information to a Regulatory Authority to the extent required by the
Rules or to the Company's auditors, accountants or legal counsel
provided that such recipients are made aware of, and agree to be bound
by, the confidentiality restrictions set forth herein.
Section 2.8. Deluxe's Covenants. Deluxe covenants and agrees with Company
as follows:
a) It will cooperate with Company to reconcile all accounting relating to
the Cash Services and the payment of compensation fees and expenses,
and will, as reasonably requested by Company, provide an accounting
for all disbursements or deployments of cash. Additional Deluxe
responsibilities in this regard are set forth in Exhibit A. Deluxe
shall maintain separate and distinct accounting of Cash Services
provided under this Agreement and Cash Services provided to Company
under the Prior Agreement.
b) It will deliver the cash that is requested by Company in accordance
with Section 2.3 on the projected date at which the cash is needed.
c) It will comply with all applicable laws, rules and regulations
applicable to it in providing the Cash Services and other obligations
herein.
d) The disclosure of proprietary and/or non-public information pertaining
to Company including, but not limited to, margins, payments, fees,
volume of cash, and location of customers or Merchants to others could
have a detrimental effect on the business of Company. Deluxe shall
hold all such information that it receives in the strictest confidence
and will not disclose the same to any person or entity outside Deluxe
and will not disclose the same to any person or entity within Deluxe
except on an "as needed" basis and except to the extent that (i)
Company authorizes Deluxe in writing to disclose such information;
(ii) Company releases such information to the public; (iii) a court or
governmental agency lawfully orders Deluxe to disclose such
information, and Deluxe has given Company notice of the order in time
for Company to contest it; or (iv) such information becomes generally
available to the public other than as a result of a disclosure by
Deluxe; or (v) Deluxe already knew such information or independently
developed such information from sources other than Company or as a
result of this Agreement; or (vi) such information becomes available
to Deluxe on a nonconfidential basis from a source other than Company
which is entitled to disclose it. Nothing contained in the foregoing
shall be deemed to permit Deluxe to disclose any confidential
information that it received from Company prior to the date of this
Agreement. Nothing herein, however, shall restrict the ability of
Deluxe to disclose information to a Regulatory Authority to the extent
required by the Rules or to Deluxe's auditors, accountants or legal
counsel, provided that such recipients are made aware of, and agree to
be bound by, the confidentiality restrictions set forth herein.
ARTICLE III
CASH SERVICES
Section 3.1. Deluxe Cash Services. Deluxe shall provide Cash Services to
Company, and Company shall compensate Deluxe for such services in accordance
with the provisions of Exhibit "A" attached hereto.
Section 3.2. Ownership of Cash. Company acknowledges that all cash provided
by Deluxe under this Agreement for the ATMs is the sole and separate property of
Deluxe and that Company has no right to or any interest in such cash except as
provided in this Agreement. Company covenants and agrees that, without the prior
express written authorization of an officer of Deluxe, it will not directly or
indirectly access, attempt to access or remove any cash from any ATMs which are
subject to this agreement, except through the use of a Card.
Section 3.3. Cash Requirements.
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a) During the Initial Term and any successive Term in accordance with the
provisions of this Agreement, Deluxe shall be required to provide cash
for the ATMs in an aggregate amount not to exceed _________________
dollars ($_____________). If Company's cash requirements exceed in the
aggregate the foregoing stated amount, Deluxe will consider any
written request from Company to increase such aggregate amount but
shall have no obligation to approve any such request.
b) Deluxe shall supply Company with the amount of cash within the time
set forth in the Cash Order Procedures. Deluxe acknowledges that such
cash must be provided timely so that the ATMs can be in operation, but
in no event shall Deluxe be liable or responsible for interruptions or
delays in the delivery of cash beyond its reasonable control or
resulting from the actions or negligence of any third party.
c) Nothing herein shall require Deluxe to supply any cash for use in ATMs
to any location other than ______________________________________ or
as otherwise agreed upon by the parties.
Section 3.4. Protection of Cash.
a) Company specifically covenants, understands and agrees that it will
not under any circumstances:
(i) Place, permit, or cause to be placed, any cash in any ATM for
which Cash Services are being provided by Deluxe, except the cash
provided by Deluxe.
(ii) Alter or change, or permit to be altered or changed, any approved
Settlement arrangements which might result in Deluxe not
receiving credit for any cash withdrawn from the ATMs for which
Deluxe is providing Cash Services.
b) Company shall carry and maintain insurance against the loss or theft
of cash in such amounts as Deluxe shall reasonably require (and in any
event, with coverage limits no greater than the full amount of cash
provided by Deluxe which may be outstanding at any time between
initial deposit by Deluxe in the relevant Designated Bank and
settlement into the Deluxe controlled account), naming Deluxe as loss
payee and providing that it cannot be materially altered or canceled
without the issuer of such policy giving Deluxe at least thirty (30)
days prior notice. Evidence of the existence of the required insurance
coverage shall be provided to Deluxe. Company covenants that each ATM
for which Company requests that Deluxe provide Cash Services shall be
insured against the loss of any cash therein with such insurance
limits and coverages as Deluxe may reasonably request and naming
Deluxe as an additional loss payee. Evidence of the existence of such
required insurance coverage concerning ATM cash shall also be provided
to Deluxe. Nothing herein shall relieve Company of its obligation to
indemnify Deluxe for any loss of Deluxe's cash, including any loss
below the deductible amount of any applicable insurance coverage.
c) Company hereby assigns to Deluxe all of its rights against any armored
car carrier utilized by Company to transport the cash provided by
Deluxe to the ATMs, including its right as loss payee under any
insurance coverage provided by the armored car carrier, and in the
event of a loss (however caused) of any of Deluxe's cash, Company
hereby authorizes Deluxe to collect directly from the armored car
carrier, or its insurance carrier, the amount of its loss. This
assignment shall not relieve Company from any liability it may have to
Deluxe for any loss, stolen or misappropriated cash belonging to
Deluxe.
d) Prior to permitting any armored car carrier to carry cash owned by
Deluxe to one or more of the ATMs, Company shall determine whether
Deluxe has any objection to the
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utilization of such armored car carrier. If Deluxe objects to such
armored car carrier, Company shall utilize a bonded carrier approved
by Deluxe, which approval shall not be unreasonably withheld. Nothing
in this section 3.4 shall relieve Company from its obligation to
indemnify and save Deluxe harmless as provided in section 5.1.a) of
this Agreement.
e) The Company shall execute and permit to be filed, notice filings on
Forms UCC-1 or such comparable forms as are commonly accepted for
filing for such purposes in the jurisdictions in which (i) the
principal places of business of _________________________________, and
such vault and/or courier service providers, as the parties may
select, respectively, are located, and/or (ii) any ATMs for which Cash
Services are provided are located. The notice filings shall be for the
sole purpose of giving notice that the cash provided by Deluxe and
deployed and deposited in designated ATMs which are set forth in the
notice is owned by Deluxe and not by others. In the event the Company
fails, for any reason, to execute and deliver any such notice filing
forms within ten (10) days of a written request from Deluxe, the
Company hereby designates and appoints any officer of Deluxe as the
true and lawful attorney in fact of the Company for the purpose of
executing and delivering such forms for filing. Such designation and
appointment is irrevocable during the term of this Agreement and is
coupled with an interest.
Section 3.5. Payment of Fees. Deluxe will xxxx (via FAX) Company monthly,
in arrears, for Cash Services. The xxxx is due upon receipt.
ARTICLE IV
TERM OF AGREEMENT; TERMINATION
Section 4.1. Initial Term. The Initial Term of this Agreement shall be for
a period of ______________________, commencing on _____________, and shall
continue for successive 12-month periods, unless prior to the expiration of each
Term, either Deluxe or Company gives the other not less than ninety (90) days
prior written notice of its election not to renew or extend this Agreement.
Section 4.2. Termination.
a) Either party shall have the right to terminate this Agreement at any
time, subject to compliance with section 4.2.(b) below upon occurrence
of one or more of the following events:
(i) Failure of either party to observe or perform that party's
obligations to the other hereunder as long as the failure or
non-performance is not due to the actions of the terminating
party; or
(ii) In the event any representation, warranty, statement or
certificate furnished to any party by the other in connection
with this Agreement, or any separate statement or document
delivered or to be delivered hereunder by any party to the other,
is materially adverse to the terminating party and intentionally
untrue as of the date made or delivered.
b) In the event any party wishes to terminate this Agreement pursuant to
subparagraphs a)(i) or a)(ii) of this Section, before this Agreement
may be terminated on such basis, the non-performance must first
continue for a period of thirty (30) days following notice in writing
to the other party; specifying the default and requesting that it be
cured or corrected fully within such time.
c) If Company fails to pay Deluxe its compensation in accordance with the
terms set forth on Exhibit "A" or otherwise fails to make payment of
any sum due hereunder to Deluxe,
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Deluxe may provide written notice of such monetary default to Company,
and if Company fails to fully cure such monetary default within seven
(7) days following delivery of such notice, Deluxe may at any time
thereafter terminate this Agreement.
d) Notwithstanding any provision in this Agreement to the contrary,
either party may terminate this Agreement at any time by giving
written notice to the other if any Regulatory Authority determines (i)
that it is inappropriate or contrary to then existing laws or
regulations for Deluxe to continue to provide Cash Services and
Company is given not less than sixty (60) days notice of such
regulatory determination (or such shorter period of time as Deluxe may
require in order to comply with the requirements of any Regulatory
Authority); or (ii) that it is inappropriate or contrary to then
existing laws or regulations for Company to continue to provide
processing and other ATM services, or its permits or licenses to
provide such services are terminated or suspended as to any ATM, and
in such case, this Agreement shall not apply to such ATMs but shall
continue with respect to others covered hereunder. In addition, Deluxe
may at any time terminate this Agreement by giving thirty (30) days
advance written notice to Company if Deluxe at any time incurs
material losses in connection with Deluxe's cash or Deluxe reasonably
determines that the continued provision of Cash Services may adversely
affect Deluxe's safety and soundness.
e) Either party may terminate the Agreement, effective immediately, upon
written notice to the other party if the other party (i) becomes
insolvent or declares bankruptcy, (ii) becomes the subject of any
proceedings seeking relief, reorganization, or rearrangement under any
laws relating to insolvency, (iii) makes an assignment for the benefit
of creditors, or (iv) begins the liquidation, dissolution, or winding
up of its business.
f) Deluxe may terminate this Agreement upon thirty (30) days written
notice to Company in the event of a Change in Control.
g) Company may, at its sole election, terminate this Agreement at any
time upon thirty (30) days written notice to Deluxe.
h) In the event of termination, the cash owed Deluxe by Company is the
Balance on the day of termination. Such Balance is due Deluxe within
five (5) business days and shall be deposited in Deluxe's designated
account.
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ARTICLE V
GENERAL PROVISIONS
Section 5.1. Indemnification.
a) Company covenants and agrees to indemnify and hold harmless Deluxe,
its parent or affiliates, and its or their respective officers,
directors, employees and permitted assigns, from and against any and
all direct or contingent liabilities, claims, damages, losses or
expenses, including reasonable attorneys' fees, arising from any
claim, demand or suit against Deluxe as a result of any material
misrepresentation, breach of material warranty or non-fulfillment of
any covenant of this Agreement by Company, unless such liabilities,
claims, damages, losses and expenses therefrom are a result of the
gross negligence or willful acts of Deluxe. In addition, Company shall
indemnify and hold Deluxe harmless against any actions or omissions of
a Merchant, claims of a Cardholder or shortages in or loss of Deluxe's
cash while it is in the custody or care of a party other than Deluxe.
b) Deluxe covenants and agrees to indemnify and hold harmless Company and
its parent or affiliates, and its or their respective officers,
directors, employees and permitted assigns, from and against any and
all direct or contingent liabilities, claims, damages, losses or
expenses, including reasonable attorneys' fees, arising from any
claim, demand or suit against Company as a result of any material
misrepresentation, breach of material representation, warranty,
covenant or agreement made by Deluxe under this Agreement, unless such
liabilities, claims, damages, losses and expenses therefrom are a
result of the gross negligence or willful acts of Company. It is
expressly agreed and understood that Deluxe's duty is limited to
delivering cash to the Designated Bank Account pursuant to Section 2.3
of this Agreement, and that Company has the sole responsibility for
delivery of the cash from any such Designated Bank to the ATMs through
a courier service (which courier service shall be subject to Deluxe's
approval as provided for herein).
c) Each party shall promptly notify the other of any claim, demand, suit,
or threat of suit of which that party becomes aware (except with
respect to a threat of suit one party might institute against the
other) which may give rise to a right of indemnification pursuant to
this Agreement.
d) The parties acknowledge that their respective liability to one another
under this Agreement generally and pursuant to this Section 5.1 shall
be limited to such direct damages as and to the extent the respective
party may show it has sustained and is entitled to recovery pursuant
to this Agreement. In no event shall either party be liable to the
other for any incidental, consequential or other extraordinary damages
such as lost profits or any other indirect damages.
Section 5.2. Compliance with Laws, Rules and Regulations. Deluxe and
Company each represent and warrant to the other that each is familiar with the
requirements of all applicable consumer protection laws and regulations, and
covenants and agrees that each of them will comply in all material respects with
all such laws and regulations, as well as all other applicable laws, rules and
regulations, now and in the future to the extent applicable to the respective
parties and the transactions contemplated by this Agreement.
Section 5.3. Governing Law. This Agreement shall be governed by and
interpreted and construed, and the rights and obligations of the parties hereto
determined in accordance with the internal laws of the State of Wisconsin.
Section 5.4. Severability. In the event that any part of this Agreement is
ruled by the final, non-appealable order or directive of any court or Regulatory
Authority to be invalid or unenforceable, then this Agreement shall be
automatically modified to eliminate that part which is affected thereby. The
remainder of this Agreement shall remain in full force and effect.
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Section 5.5. Survival. All representations, warranties, indemnifications,
and accrued obligations shall survive any expiration, renewal or earlier
termination of this Agreement.
Section 5.6. Acknowledgment of Regulatory and Other Constraints. The
parties hereto acknowledge that Deluxe and Company are subject to the rules,
regulations, orders and requirements which may be imposed by any Regulatory
Authority and Deluxe's Board of Directors. In the event of any requirements
imposed by those entities or agencies, the parties agree that this Agreement
shall be deemed modified to conform to such requirements.
Section 5.7. Arbitration. In the event of any dispute between Deluxe and
Company relating to this Agreement, or their performances hereunder, Deluxe and
Company agree that such dispute shall be resolved by means of arbitration in
Milwaukee, Wisconsin, in accordance with the commercial arbitration rules of the
American Arbitration Association ("AAA"), and judgment upon the award rendered
by the arbitrator(s) may be entered in any court of competent jurisdiction. The
arbitration shall be heard by a panel of one arbitrator, appointed by the AAA.
The arbitration decision shall be binding upon Deluxe and Company. Either party
will forfeit the dispute if this clause is not adhered to by such party.
Depositions may be taken and other discovery obtained during such arbitration
proceedings to the same extent as authorized in civil judicial proceedings in
the State of Wisconsin. The arbitrator(s) shall be limited to awarding
compensatory damages and shall have no authority to award punitive, exemplary or
similar type damages. The prevailing party in the arbitration proceeding shall
be entitled to recover its expenses, including the costs of the arbitration
proceeding and reasonable attorneys' fees.
Section 5.8. Binding Effect. This Agreement and the rights and obligations
created thereunder shall be binding upon and inure solely to the benefit of the
parties hereto and their respective successors and permitted assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. Nothing herein expressed or implied is intended or shall be construed
to confer upon or give any rights or remedies as a third party beneficiary, or
otherwise, under or by reason of this Agreement to any persons, firm or
corporation.
Section 5.9. Notices. All notices, requests, demands and other
communications hereunder (i) shall be in writing; (ii) shall be addressed to the
parties as indicated below unless notified in writing of a change in address;
and (iii) shall be deemed to have been given either when personally delivered or
when sent by regular United States mail, in which event it shall be sent postage
prepaid upon delivery thereof, or, if sent by telegram, telex or facsimile
transmission, upon delivery thereof, as follows:
To Deluxe: Deluxe Electronic Payment Systems, Inc.
000 Xxxx Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Fax No. 414/000-0000
Attention: President
To Company:
Section 5.10. Amendments. This is the only Agreement between the parties
regarding the subject matter hereof and may be amended only in writing signed by
all parties, and dated subsequent to the execution of this Agreement.
Section 5.11. Counterparts. This Agreement may be executed and delivered by
the parties hereto in any number of counterparts, and by different parties on
separate counterparts, each of which counterparts, taken together, shall
constitute but one and the same instrument.
Section 5.12. Complete Agreement. This Agreement contains and reflects the
entire agreement between the parties with respect to the subject matter hereof,
and supersedes any prior understandings, agreements or representations by or
between the parties, written or oral, which may have related to the subject
matter hereof in any
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way. The Prior Agreement shall remain in full force and
effect in accordance with its terms and is a separate and distinct agreement
from this Agreement. The parties may at some point amend this Agreement to
supercede and replace the Prior Agreement and shall cooperate with one another
in all reasonable ways to accomplish same.
Section 5.13. Assignment. This Agreement and the respective rights of the
parties hereunder may not be assigned by either party hereto without the prior
written consent of the other except that Deluxe may assign this Agreement to any
other directly or indirectly wholly-owned subsidiary of Deluxe Corporation and
that any business combination, merger, consolidation or share exchange which is
not a Change in Control shall not be considered an assignment by Company.
IN WITNESS WHEREOF, this Agreement is executed by the parties as of the
date and year first above written.
DELUXE ELECTRONIC PAYMENT SYSTEMS, INC.
By________________________________________ By__________________________________
Its_______________________________________ Its_________________________________
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