Exhibit 10.25(a)
--------------------------------------------------------------------------------
MASTER XXXX PAYMENT SERVICES AGREEMENT
THIS AGREEMENT is made this 18th day of August, 2000, (the "Effective Date") by
and between Spectrum EBP, L.L.C., a limited liability company chartered under
the laws of the State of Delaware, ("Spectrum") and Metavante Corporation, a
corporation chartered under the laws of the State of Wisconsin.
RECITALS:
WHEREAS, Spectrum provides electronic xxxx presentment services to The Chase
Manhattan Bank, Xxxxx Fargo Bank, N.A., and First Union National Bank and their
Affiliates (the "Founding Members"), and other federal and state chartered
financial institutions which execute a participant agreement with Spectrum
("Participants") through combined hardware, software, security and
telecommunications arrangements which facilitate the exchange of data and
settlement among Participants (the "Spectrum Switch"); and
WHEREAS, Metavante by itself or through its subcontractor(s), offers a system
which enables consumer customers of financial institutions to initiate xxxx
payments from a personal computer or other internet access device (the "Xxxx
Payment Services") and seeks to provide the Xxxx Payment Services to Founding
Members and other Participants according to the terms of this Agreement; and
WHEREAS, Metavante and Spectrum seek to establish a strategic partnership for
Metavante to provide the Xxxx Payment Services to the Founding Members and
Participants;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, the parties, intending legally to be bound,
mutually agree as follows:
1. DEFINITIONS. As used in this Agreement, the defined terms shall have the
respective meanings as set forth on Schedule 1.
2. BUSINESS RELATIONSHIP.
2.1. Initial Term. This Agreement shall commence on the Effective Date and
end on the fifth (5th) anniversary of the "Commencement Date" which is defined
as the sooner of April 1, 2001, or the date the first Founding Member converts
(converts is defined as providing Metavante with xxxx payment transaction
instructions) greater than 10 percent of its current xxxx payment volume to
Metavante (the "Initial Term"). This Agreement shall annually renew for
additional Terms of one (1) year unless written notice of termination is
provided by a party to the other party within one hundred eighty (180) days
prior to the expiration of any Term.
2.2. General.
A. Founding Members. Contemporaneous with the execution of this
Agreement, and as a condition precedent to Metavante's obligations hereunder,
Spectrum shall cause each Founding Member to execute the Founding Member
Agreement attached hereto as Exhibit A. Contemporaneous with the execution of
this Agreement and as a condition precedent to Spectrum's obligations hereunder,
Metavante agrees to execute the Founding Member Agreement with each of the
Founding Members. Spectrum may add additional Founding Members to this
Agreement upon providing written notice thereof to Metavante., Any such
additional Founding Member shall sign the Founding Member Agreement and
Metavante shall execute such Founding Member Agreement with such Founding
Member.
B. Pay Anyone Solution. Metavante and Spectrum shall mutually develop a
standard integrated solution by which Metavante's Xxxx Payment Services shall
be offered by Spectrum to Participants.
2.3. Metavante's Responsibilities.
A. Operation of the Xxxx Payment System. Metavante shall provide the
Xxxx Payment Services as described in, and subject to the terms of, Schedule 2
hereto for the Founding Members and Participants which execute a Xxxx Payment
Agreement with Spectrum (collectively, such Founding Members and Participants
shall be referred to herein as "Xxxx Payment Customers"). Metavante shall
provide through Spectrum the Xxxx Payment Services to Xxxx Payment Customers for
the fees set forth in Schedule 4 and in accordance with the Service Levels set
forth in Schedule 5.
B. Performance By Metavante Subcontractors. The actual performance
of the Xxxx Payment Services may be made by the divisions or subsidiaries of
Metavante or subcontractors of any of the foregoing Entities (collectively, the
"Eligible Providers"). For purposes of this Agreement, performance of the Xxxx
Payment Services by any Eligible Provider shall be deemed performance by
Metavante itself. Metavante shall remain fully responsible for the performance
or non-performance of each Eligible Provider under this Agreement, to the same
extent if Metavante itself performed or failed to perform such services.
Spectrum, Founding Members, and other Xxxx Payment Customers shall look solely
to Metavante, and not to any Eligible Provider, for satisfaction of any claims
arising out of this Agreement or the performance or nonperformance of the Xxxx
Payment Services.
C. Right to Perform Services in Most Efficient Manner. In providing
Xxxx Payment Services hereunder, Metavante may use the most effective or
efficient means deemed reasonable or necessary by Metavante in its sole
discretion. This includes, for example, the right to consolidate and remit all
payments for a particular payee to that payee's central payment processing
center rather than remitting any User's payment to a different address of the
payee designated by the User. Metavante agrees to use commercially reasonable
efforts to maximize the number of xxxx payment transactions processed completely
through electronic means.
1
D. Responsibility for Xxxx Payments. Pursuant to Spectrum's written
instructions, Metavante shall provide the Xxxx Payment Services to Xxxx Payment
Customers under either the Good Funds Model or the Risk Model. As between
Metavante and Spectrum, responsibility for the Credit Risk for xxxx payment
transactions shall depend upon whether the Xxxx Payment Services are provided
under the Good Funds Model or the Risk Model in accordance with Schedule 6
hereto. Spectrum shall be responsible to Metavante for the responsibilities of
the Xxxx Payment Customer under Schedule 6. Metavante shall charge the
Settlement Account, as defined in Schedule 6, for all xxxx payment transactions
initiated by Users.
2.4. Spectrum's Responsibilities
A. Exclusive Marketing. Throughout the term of this Agreement,
Spectrum agrees to exclusively promote and market Metavante's Xxxx Payment
Services to its Participants, and shall not directly or indirectly endorse,
promote, offer, market, or distribute "pay anyone" services other than
Metavante's Xxxx Payment Services.
B. Spectrum Switch. Throughout the term of this Agreement, Spectrum
shall operate the Spectrum Switch for the Founding Members and Participants.
C. Xxxx Payment Agreements. Spectrum shall obtain executed, written
Xxxx Payment Agreements from each Xxxx Payment Customer prior to requesting
Metavante to provide Xxxx Payment Services for such Xxxx Payment Customer. Each
such Xxxx Payment Agreement shall (i) include the terms and conditions set forth
in Schedule 3 hereto; (ii) make the Xxxx Payment Customer responsible for the
Credit Risk for xxxx payment transactions depending upon whether the Xxxx
Payment Services are provided under the Good Funds Model or the Risk Model in
accordance with Schedule 6 hereto; (iii) make the Xxxx Payment Customer
responsible for government payments in accordance with Schedule 6 hereto; (iv)
require that the Xxxx Payment Customer maintain the confidentiality of
Metavante's proprietary information substantially in conformance with Section 4
hereof; and (v) include enforceable contractual terms which prohibit the Xxxx
Payment Customer from raising and/or litigating tort claims against Metavante
based upon the Xxxx Payment Services, provided that, for those Participants,
other than the Founding Members, which have executed a participant agreement
with Spectrum prior to the Effective Date, Spectrum shall incorporate the
provisions of this subsection (v) into the applicable written agreement when
next such agreement is renewed, amended, or otherwise modified. Spectrum shall
diligently enforce against each Xxxx Payment Customer the terms of the Xxxx
Payment Agreement required under subsections (i), (ii), (iii), (iv), and (v)
above.
2.5. Fees and Charges.
A. Accrual. Beginning on the Effective Date and monthly thereafter,
Spectrum shall pay fees and charges to Metavante for Xxxx Payment Services
provided by Metavante to the Xxxx Payment Customers, without offset, in
accordance with the Fee Schedule set forth on Schedule 4, including, without
limitation, the Minimum Annual Transaction Charge. In the event that fees and
charges paid by Spectrum to Metavante during any calendar year for Xxxx Payment
Services provided to Xxxx Payment Customers are less than the Minimum Annual
Transaction Charge, Metavante shall invoice Spectrum for the difference in the
following calendar year. Usage of the Xxxx Payment Services shall be recorded
by the Xxxx Payment System or by any other means used by Metavante to determine
usage of the Xxxx Payment Services. Metavante agrees that fees and charges
payable by Spectrum shall be reduced by accrued Service Level Credits as
described in Schedule 5 hereto.
B. Competitive Pricing. The parties acknowledge and agree that, as of
the date hereof, the fees and charges set forth in Schedule 4 are competitive
with, in all material respects when considered as a whole, fees and charges now
actually commercially available from other reputable, adequately capitalized and
well established providers of comparable services for a comparable customer,
with such comparison based on (a) the volume of transactions to be processed
monthly by Metavante for Spectrum hereunder, and (b) the length of the Initial
Term of this Agreement (the "Market Price"). Metavante agrees to continue to
provide Spectrum, during the term of this Agreement and any renewal thereof,
competitive pricing as described below.
(1) Following the Effective Date and throughout the Term of this
Agreement, Metavante agrees not to offer to provide the Xxxx Payment
Services to any third party for fees and charges lower than those then
charged Spectrum hereunder for comparable services (with such
comparison based on (a) the volume of transactions to be processed
monthly by Metavante for the party, and (b) the length of the Initial
Term of this Agreement) to those provided to Spectrum under this
Agreement. In the event Metavante, following the Effective Date,
agrees to provide the Xxxx Payment Services to any third party for
fees and charges lower than those set forth in Schedule 4 herein for
comparable services (with such comparison based on (a) the volume of
transactions to be processed monthly by Metavante for the party, and
(b) the length of the Initial Term of this Agreement) to those
provided to Spectrum under this Agreement, Metavante agrees to
immediately lower fees and charges to Spectrum and to notify Spectrum
in writing of such change. Spectrum understands and agrees that
Spectrum shall not have any right to review or audit Metavante's
contracts with third parties or to require Metavante to disclose terms
of its contracts with third parties in order to assess Metavante's
compliance with the foregoing. Instead, Spectrum shall have the right,
from time to time (but no more than once during any twelve month
period), at Spectrum's request and Spectrum's expense, to require
Metavante to commission an audit of Metavante's contracts by
Metavante's independent third party auditor to verify Metavante's
compliance with the foregoing. Metavante shall provide to Spectrum a
copy of the third party report produced pursuant to such audit.
(2) From time to time, at Spectrum's request and Spectrum's expense,
Metavante agrees to participate in benchmarking surveys conducted by a
third party mutually agreeable to Spectrum and Metavante to assess the
Market Price then available for the Xxxx Payment Services, provided
that any such survey must include Metavante and at least three (3)
other providers, and provided further that (i) the first such survey
shall not be conducted any sooner than one (1) year following the
Commencement Date, and (ii) such surveys shall not be conducted more
frequently than once during any twelve month period. In the event any
such survey shall indicate that the fees and charges then being paid
by Spectrum and Participants to Metavante for the Xxxx Payment
Services exceed the Market Price then available by more than eight
percent (8%) on an annual basis (the "Market Range"), Metavante shall
either (a) make such adjustments to its fees and charges for the Xxxx
Payment Services as reasonably can be expected to
2
reduce Spectrum's and Participants' annual payments to Metavante for
the Xxxx Payment Services to fall within the Market Range, provided
that Metavante shall not in any event be required to set its fees and
charges at a level below Metavante's cost to provide the Xxxx Payment
Services, or (b) permit Spectrum to terminate this Agreement without
penalty.
C. Payment. Metavante shall monthly xxxx Spectrum for all fees and
charges payable for the preceding month. All amounts payable hereunder shall be
paid within thirty (30) days of the applicable invoice, unless otherwise
expressly provided in Schedule 4. Spectrum shall pay interest at the rate of
one percent (1%) per month on any amounts not paid in full on or before their
due date. Spectrum shall also pay any collection costs (including reasonable
attorneys' fees) incurred by Metavante in collecting any amounts payable
hereunder. To effect payment of amounts due hereunder, Spectrum hereby
authorizes Metavante to initiate debit entries from and, if necessary, initiate
credit entries and adjustments to Spectrum's account at the depository
institution designated in the ACH Authorization Agreement attached hereto as
Exhibit B, which shall be executed by Spectrum contemporaneously with the
execution of this Agreement.
D. Taxes. Spectrum shall be responsible for any and all taxes which
by statute or regulation are imposed by any taxing authority on Spectrum without
regard to who is required to collect such tax as a result of or in connection
with the Xxxx Payment Services hereunder (for example, sales taxes even though
collected by or through Metavante), except for those taxes that are based on the
net income or assets of Metavante. On Customer's request, Metavante shall
reasonably cooperate with Spectrum in contesting the validity or imposition of
any such taxes which are the responsibility of Spectrum hereunder with the
appropriate taxing authority, at Spectrum's sole cost and expense.
E. Marketing Referral Fees. Throughout the Initial Term, Metavante
shall annually pay Spectrum referral fees in the amount of three percent (3%) of
annual transaction revenues received by Metavante from Spectrum for Xxxx Payment
Services provided under a Xxxx Payment Agreement between Spectrum and a
Participant (excluding any Founding Member) which is included on the list of the
Top 50 Financial Companies set forth in Schedule 8 hereto, but excluding
institutions to which Metavante submitted a proposal at or prior to the
Effective Date of this Agreement or for which Metavante provides Xxxx Payment
Services or data processing services for core deposit and loan functions,
provided further that such referral fees shall be subject to a maximum limit of
three million dollars ($3,000,000) per year. Referral fees shall be paid by
Metavante to Spectrum annually on or before January 31 of the year following the
year in which they are earned.
3. AUTHORITY.
3.1. Metavante warrants to Spectrum as follows:
A. Authority. It is validly existing and in active status under the
laws under which it is incorporated or chartered. It has all the requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement, the execution, delivery and performance of this Agreement
has been duly authorized by Metavante and this Agreement is enforceable in
accordance with its terms against Metavante. No approval, authorization or
consent of any governmental or regulatory authorities is required to be obtained
or made by Metavante in order for Metavante to enter into and perform its
obligations under this Agreement.
B. Ownership. Metavante has the right to offer the Xxxx Payment
Services to Spectrum as provided herein; the Metavante Software does not violate
any patent, copyright, trademark or other proprietary right or interest of any
Third Party under United States law. Metavante has all right and authority to
use any and all trademarks, tradenames, service marks, domain names, logos or
other marks which Metavante provides to Spectrum and separately authorizes
Spectrum to use in connection with the Xxxx Payment Services.
3.2. Spectrum warrants to Metavante as follows: It is validly existing and
in good standing under the laws under which it is formed. It has all the
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement, the execution, delivery and performance of
this Agreement has been duly authorized by Spectrum and this Agreement is
enforceable in accordance with its terms against Spectrum. No approval,
authorization or consent of any governmental or regulatory authorities is
required to be obtained or made by Spectrum in order for Spectrum to enter into
and perform its obligations under this Agreement. Spectrum has all right and
authority to use any and all trademarks, tradenames, service marks, domain
names, logos or other marks provided to Metavante for use in connection with the
Xxxx Payment Services.
4. Confidentiality and Security.
4.1. User Data. Each Xxxx Payment Customer shall remain the sole and
exclusive owner of its User Data. All such User Data and other Confidential
Information of a Xxxx Payment Customer shall, however, be subject to regulation
and examination by the appropriate auditors and regulatory agencies to the same
extent as if such information were on such Xxxx Payment Customer's premises.
4.2. Metavante Systems. Neither Spectrum nor any Xxxx Payment Customer
shall have any rights in any software, systems, documentation, guidelines,
procedures and similar related materials or any modifications thereof provided
or used by Metavante.
4.3. Confidential Information. "Confidential Information" of a party shall
mean all confidential or proprietary information and documentation of such
party, whether or not marked as such, including without limitation, all User
Data. Confidential Information shall not include: (i) information which is or
becomes publicly available (other than by the person or entity having the
obligation of confidentiality) without breach of this Agreement; (ii)
information independently developed by the receiving party; (iii) information
received from a third party not under a confidentiality obligation to the
disclosing party; or (iv) information already in the possession of the receiving
party without obligation of confidence at the time first disclosed by the
disclosing party. The parties acknowledge and agree that the substance of the
negotiations of this Agreement, and the terms of this Agreement are considered
Confidential Information subject to the restrictions contained herein. Neither
party shall use, copy, sell, transfer, publish, disclose, display, or otherwise
make any of the other party's Confidential Information available to any Third
Party without the prior written consent of the other. Notwithstanding the
foregoing, either party may disclose Confidential Information to its agents or
contractors as may be necessary to fulfill its obligations or exercise its
rights under this Agreement, or pursuant to a request or order of any
governmental agency having competent jurisdiction, or upon the order or subpoena
of any court.
3
4.4. Obligations of the Parties. Each party shall hold the Confidential
Information of the other party and of Xxxx Payment Customers in confidence and
shall not disclose or use such Confidential Information other than for the
purposes contemplated by this Agreement, and shall instruct its employees,
agents, and contractors to use the same care and discretion with respect to the
Confidential Information of the other party, of any Xxxx Payment Customer, or of
any third party utilized hereunder that the party requires with respect to its
own most confidential information, but in no event less than a reasonable
standard of care, including but not limited to, the utilization of security
devices or procedures designed to prevent unauthorized access to such materials.
Each party shall instruct its employees, agents, and contractors of its
confidentiality obligations hereunder and not to attempt to circumvent any such
security procedures and devices. All such Confidential Information shall be
distributed only to persons having a need to know such information to perform
their duties in conjunction with this Agreement.
4.5. Security. Metavante shall be responsible for establishing and
maintaining safeguards against a disaster, loss or alteration of the User Data
in the possession of Metavante. Such safeguards shall be no less rigorous than
that Metavante uses to protect its own data of a similar nature.
4.6. Services Continuity Plan. Metavante shall provide Spectrum and/or
the Xxxx Payment Customer with a summary of its current disaster recovery plan
for the Operations Center. Updates to the plan shall be provided to Spectrum
from time to time without charge. Metavante agrees to comply with all
regulations of federal regulatory agencies that apply to the security and backup
and disaster recovery obligations of persons that provide services on an
outsourced basis to financial institutions.
5. PERFORMANCE WARRANTY/EXCLUSIVE REMEDY/DISCLAIMER OF ALL OTHER WARRANTIES
5.1. Performance Warranty. Metavante warrants that it will provide the Xxxx
Payment Services in accordance with the Service Level Agreements and where such
Service Level Agreements are not applicable, in a commercially reasonable manner
(the "Performance Warranty"). THIS PERFORMANCE WARRANTY IS SUBJECT TO THE
WARRANTY EXCLUSIONS SET FORTH BELOW IN SECTION 5.2 AND THE REMEDY LIMITATIONS
SET FORTH BELOW IN SECTION 5.4.
5.2. Performance Warranty Exclusions. Except as may be expressly agreed in
writing by Metavante, Metavante's Performance Warranty does not apply to:
A. defects, problems, or failures caused by Spectrum's or any Xxxx
Payment Customer's nonperformance of obligations essential to Metavante's
performance of its obligations; and/or
B. defects, problems, or failures caused by an event of force
majeure.
5.3. Notice of and Correction of Defects. Spectrum or the applicable Xxxx
Payment Customer shall notify Metavante in writing of any alleged breach of this
Performance Warranty. If the breach relates to a Service Level, Metavante shall
have ninety (90) days to correct the alleged breach; for all other breaches of
the Performance Warranty, Metavante shall have thirty (30) days to correct the
alleged breach. During this time period, Metavante shall use commercially
reasonable efforts, at its own expense, to remedy the breach. Spectrum and Xxxx
Payment Customers shall be responsible for making whatever appropriate
commercially reasonable adjustments may be necessary to mitigate adverse effects
on them until Metavante remedies the breach. Metavante will, at Metavante's
expense, assist Spectrum and Xxxx Payment Customers in making such corrections
through the most cost-effective means, whether manual, by system reruns or
program modifications.
5.4. Backup Remedy. If Metavante fails to remedy the breach in the time
periods specified in Section 5.3 above, Spectrum may terminate this Agreement
for cause pursuant to Section 9.2 below, and/or the Xxxx Payment Customer may
terminate its agreement with Metavante, and Spectrum or the Xxxx Payment
Customer may seek Damages as allowed under Article 10 hereof. THE BACKUP REMEDY
SET FORTH IN THIS SECTION 5.4 IS SPECTRUM'S SOLE AND EXCLUSIVE REMEDY FOR
METAVANTE's BREACH OF THE PERFORMANCE WARRANTY, TO THE EXCLUSION OF ALL OTHER
REMEDIES, IN CONTRACT, TORT, OR OTHERWISE.
5.5. DISCLAIMER OF ALL OTHER WARRANTIES. THIS PERFORMANCE WARRANTY, AND
WARRANTIES IN ARTICLE 3, ARE IN LIEU OF, AND METAVANTE DISCLAIMS ANY AND ALL
OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR
WRITTEN) WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT METAVANTE KNOWS, HAS REASON TO
KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE),
WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR
BY COURSE OF DEALING. IN ADDITION, METAVANTE DISCLAIMS ANY WARRANTY OR
REPRESENTATION TO ANY PERSON OTHER THAN SPECTRUM WITH RESPECT TO THE SERVICES
PROVIDED UNDER THIS AGREEMENT.
6. INSURANCE; INDEMNIFICATION.
6.1. Metavante.
A. Metavante shall maintain for its own protection fidelity bond
coverage for the Metavante Operations Center personnel; insurance coverage for
loss from fire, disaster or the causes contributing to interruption of normal
services, reconstruction of data file media and related processing costs;
additional expenses incurred to continue operations; and business interruption
to reimburse Metavante for losses resulting from suspension of the Metavante
Operation Center's activities due to physical loss of equipment. Metavante will
also maintain for its own protection General Liability coverage to protect
against third party bodily injury, property damage and personal injury claims,
and Errors and
4
Omissions coverage for claims arising from wrongful acts, errors or omissions in
the performance of its professional services in amounts, with coverages and
deductibles consistent with the amounts, coverages and deductibles maintained by
well run data processing companies of comparable size.
B. Metavante shall indemnify Spectrum from, defend Spectrum against,
and pay any final judgment awarded against Spectrum, in favor of a Third Party
resulting from: (a) any claim by a Third Party that the Metavante Software or
Xxxx Payment System infringes any patent, copyright, trademark or other third
party intellectual property right under United States law; (b) personal injury,
death or damage to property arising out of the fault or negligence of Metavante
or its employees; and (c) breach of any material term of this Agreement by
Metavante.
6.2. Spectrum. Spectrum shall indemnify Metavante from, defend Metavante
against and pay any final judgment awarded against Metavante in favor of a Third
Party (including Xxxx Payment Customers and Users) resulting from: (a) personal
injury, death, or damage to property arising from the fault or negligence of
Spectrum or its employees or agents; (b) breach of any material term of this
Agreement by Spectrum (specifically including, without limitation, Spectrum's
obligations under Section 2.4D); (c) instructions or data provided by Spectrum
or any Xxxx Payment Customer to Metavante, and any inaccuracy or inadequacy
thereof. Not in limitation of the foregoing, Spectrum agrees to provide
reasonable assistance to Metavante in the event that Metavante is sued by a Xxxx
Payment Customer or User based upon the Xxxx Payment Services.
6.3. Indemnification Procedures. If any Third Party makes a claim covered
by this Section against an indemnitee with respect to which such indemnitee
intends to seek indemnification under this Section, such indemnitee shall give
notice of such claim to the indemnifying party, including a brief description of
the amount and basis therefor, if known. Upon giving such notice, the
indemnifying party shall be obligated to defend such indemnitee against such
claim, and shall be entitled to assume control of the defense of the claim with
counsel chosen by the indemnifying party, reasonably satisfactory to the
indemnitee. Indemnitee shall cooperate fully with, and assist, the indemnifying
party in its defense against such claim in all reasonable respects. The
indemnifying party shall keep the indemnitee fully apprised at all times as to
the status of the defense. Notwithstanding the foregoing, the indemnitee shall
have the right to employ its own separate counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of such indemnitee.
Neither the indemnifying party nor any indemnitee shall be liable for any
settlement of action or claim effected without its consent. Notwithstanding the
foregoing, the indemnitee shall retain, assume, or reassume sole control over
all expenses relating to every aspect of the defense that it believes is not the
subject of the indemnification provided for in this section. Until both (a) the
indemnitee receives notice from indemnifying party that it will defend, and (b)
the indemnifying party assumes such defense, the indemnitee may, at any time
after ten (10) days from the date notice of claim is given to the indemnifying
party by the indemnitee, resist or otherwise defend the claim or, after
consultation with and consent of the indemnifying party, settle or otherwise
compromise or pay the claim. The indemnifying party shall pay all costs of
indemnity arising out of or relating to that defense and any such settlement,
compromise, or payment. The indemnitee shall keep the indemnifying party fully
apprised at all times as to the status of the defense. Following indemnification
as provided in this Section, the indemnifying party shall be subrogated to all
rights of the indemnitee with respect to the matters for which indemnification
has been made.
7. THIRD PARTY PRODUCTS. Metavante may use Third Party software and other
Third Party products in connection with the Xxxx Payment Services offered
hereunder. Metavante shall not have financial responsibility or legal liability
to Spectrum or any Xxxx Payment Customer in connection with the performance or
non-performance of any Third Party software or other Third Party products. The
foregoing limitation shall not affect Metavante's obligation to perform the Xxxx
Payment Services in accordance with the Performance Warranty under this
Agreement and shall not affect Metavante's responsibility for User Data security
under Section 4.5 hereof.
8. RECORDS AND AUDITS.
8.1. Third Party Audits. Metavante shall cause a Third Party review of the
Metavante Operations Center and related internal controls, to be conducted
annually by its independent auditors in accordance with SAS 70 or applicable
successor regulatory and/or generally accepted accounting standards then in
effect. Metavante shall provide to Spectrum, upon written request, one copy of
the audit report resulting from such review.
8.2. Records. Upon reasonable notice from Spectrum, Metavante shall
provide Spectrum with copies of such financial records and supporting
documentation as may be reasonably requested by Spectrum such that Spectrum may
audit the fees charged to Spectrum to determine that such fees are accurate and
in accordance with this Agreement. If, as a result of such audit, Spectrum
determines that Metavante has overcharged Spectrum, Spectrum shall notify
Metavante of the amount of such overcharge and Metavante shall promptly pay to
Spectrum the amount of the overcharge. During the Term and for a period of one
(1) year after termination or expiration of this Agreement Metavante agrees to
retain all records and supporting documentation sufficient to document the fees
paid or payable by Spectrum under this Agreement and to provide in a timely
manner (but no later than ten (10) days following Spectrum's request) copies of
the same to Spectrum following reasonable written request from Spectrum.
9. DEFAULT
9.1. Spectrum Default. Should Spectrum (i) default in the payment of any
sum of money hereunder and fail to cure such default within thirty (30) days
following notice thereof from Metavante, (ii) default in the performance of any
of its other material obligations under this Agreement and fail to cure such
failure within thirty (30) days after being given notice specifying the nature
of the failure, or (iii) become or be declared insolvent or bankrupt, or be the
subject of any proceedings related to its liquidation, insolvency or for the
appointment of a receiver or similar officer for it, make an assignment for the
benefit of creditors, or enter into an agreement for the composition, extension,
or readjustment of all or substantially all of its obligations, then, in any
such event, Metavante, at its option, may exercise any and all rights and
remedies available to Metavante at law or in equity for Spectrum's default,
specifically including, without limitation, the right to immediately terminate
this Agreement and declare all amounts due, or to become due (including Minimum
Annual Transaction Charges for the remainder of the applicable Term),
immediately due and payable upon providing written notice thereof to Spectrum,
and, in addition, in the event of any failure by Spectrum to
5
enforce any terms of any Xxxx Payment Agreement, Spectrum shall, upon
Metavante's request, assign to Metavante the right to enforce such terms
directly against the Xxxx Payment Customer.
9.2. Metavante Default. Should Metavante (i) become or be declared
insolvent or bankrupt, or be the subject of any proceedings related to its
liquidation, insolvency or for the appointment of a receiver or similar officer
for it, make an assignment for the benefit of creditors, or enter into an
agreement for the composition, extension, or readjustment of all or
substantially all of its obligations, or (ii) default in the performance of any
of its other material obligations under this Agreement and fail to cure such
failure within thirty (30) days after being given notice specifying the nature
of the failure (or within such other time period as may be provided hereunder),
then, in any such event, Spectrum, at its option, may exercise any and all
rights and remedies available to Spectrum at law or in equity for Metavante's
default, specifically including, without limitation, the right to immediately
terminate this Agreement upon providing written notice thereof to Metavante.
Metavante understands and agrees that Metavante's material failure to perform
its obligations under Sections 1.1 and 1.2 of Schedule 2 hereof shall constitute
a default subject to the thirty (30) day cure period provided under subsection
(ii) above notwithstanding that such failure may also constitute a failure by
Metavante to achieve a Service Level Agreement.
10. DAMAGES.
10.1. Equitable Relief. Either party or a Xxxx Payment Customer may seek
equitable remedies, including injunctive relief, for a breach of the other
party's obligations set forth in Article 4 of this Agreement.
10.2. Exclusion of Incidental and Consequential Damages. Independent of,
severable from, and to be enforced independently of any other provision of this
Agreement, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON
CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS), AND METAVANTE WILL NOT
BE LIABLE TO ANY MEMBER, PARTICIPANT, OR XXXX PAYMENT CUSTOMER, IN CONTRACT,
TORT, NEGLIGENCE OR OTHERWISE, FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE,
OR EXEMPLARY DAMAGES OF ANY KIND--including lost profits, loss of business, or
other economic damage (for example, late charges, interest, or penalties imposed
by Third Parties), and further including injury to property, AS A RESULT OF
BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT, INCLUDING ANY FAILURE OF
PERFORMANCE, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS
ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
The foregoing shall not be deemed to limit Metavante's liability to the Founding
Members for the amount of late charges actually paid by Users as set forth in
Attachment 3 of the Founding Member Agreement or for Service Level Credits which
accrue to Spectrum under Schedule 5 hereof.
10.3. Maximum Damages Allowed. Notwithstanding any other provision of this
Agreement, and for any reason, including breach of any duty imposed by this
contract or independent of this contract, and regardless of any claim in
contract, tort, negligence or otherwise, Metavante's total, aggregate liability
under this Agreement shall in no circumstance exceed ten million dollars
($10,000,000), provided that Service Level Credits paid to Spectrum under
Schedule 5 hereof shall not be applied to such ten million dollar limitation.
10.4. Statute of Limitations. No lawsuit or other action may be brought on
any claim or controversy based upon or arising in any way out of this Agreement,
after three (3) years from the date on which the cause of action arose
regardless of the nature of the claim or form of action, whether in contract,
tort, negligence or otherwise; provided, however, the foregoing limitation shall
not apply to the collection of any amounts due under this Agreement.
10.5. Economic Loss Waiver. In addition to and not in limitation of any
other provision of this Article 10, each party hereby knowingly, voluntarily,
and intentionally waives any right to recover from the other party, and Spectrum
waives any right to recover from any Eligible Provider, any economic losses or
damages in any action brought under tort theories, including, misrepresentation,
negligence and/or strict liability and/or relating to the quality or performance
of any products or services provided by Metavante. For purposes of this waiver,
economic losses and damages include monetary losses or damages caused by a
defective product or service except personal injury or damage to other property.
Even if remedies provided under this Agreement shall be deemed to have failed of
their essential purpose, neither party shall have any liability to the other
party under tort theories for economic losses or damages.
10.6. Essential Elements. The parties acknowledge and agree that the
limitations contained in this Article 10 are essential to this Agreement, and
that Metavante has expressly relied upon the inclusion of each and every
provision of this Article 10 as a condition to executing this Agreement.
10.7. Data Security and Delivery. Payments delivered over an automated
clearing house system (ACH) are governed by the rules and performance standards
of the network. Metavante shall not be responsible for the loss, delay,
confidentiality or security of data or other payment information while in
transmission over communication lines, in the postal system, or in an ACH or
other network.
11. TERMINATION.
11.1. Early Termination. This Agreement shall be in effect during the Term,
as set forth in Section 2.1.
11.2. Rights Following Termination. Following expiration of the Term or
termination of this Agreement or the applicable Xxxx Payment Agreement for any
reason and upon a Xxxx Payment Customer's request, Metavante shall provide to
the Xxxx Payment Customer professional services, at Metavante's then current
standard rates, to prepare for the Xxxx Payment Customer, the following
information with respect to Users, in machine readable format: User name and
address, payee names and addresses (the payee address shall be the one set up by
the User for payments), recurring payment model detail, future dated payment
detail, payment history, User contact history, and annual payment activity
statement history (if applicable). All transactions in progress prior to
expiration or the notice of early termination shall be completed by Metavante
and Spectrum shall remain liable for the fees and charges associated with such
transactions. Future dated and recurring payments that are not in process as of
the date of termination shall not be processed by Metavante.
6
12. MISCELLANEOUS.
12.1. Governing Law. The validity, construction and interpretation of this
Agreement and the rights and duties of the parties hereto shall be governed by
the internal laws of the State of New York, excluding its principles of conflict
of laws.
12.2. Entire Agreement; Amendments. This Agreement, together with the
schedules hereto, constitutes the entire agreement between the parties with
respect to the subject matter hereof. There are no restrictions, promises,
warranties, covenants or undertakings other than those expressly set forth
herein and therein. This Agreement supersedes all prior negotiations,
agreements, and undertakings between the parties with respect to such matter.
This Agreement, including the schedules hereto, may be amended only by an
instrument in writing executed by the parties or their permitted assignees.
12.3. Assignment. This Agreement may not be assigned by either party, by
operation of law or otherwise, without the prior written consent of the other
party, which consent shall not be unreasonably withheld, provided that either
party may freely assign this Agreement (i) in connection with a merger,
corporate reorganization or sale of all or substantially all of its assets,
stock or securities, or (ii) to any Entity which is a successor to substantially
all of the assets or the business of the party, provided that Spectrum may not
assign this Agreement to Fiserv, Inc., CheckFree Corporation, Princeton Ecom
Corporation, MasterCard, Inc., or ALLTEL Corporation, or any of their
Affiliates, or to any other competitor of Metavante within the xxxx presentment
and payment industry or its Affiliate, without Metavante's prior written
consent.
12.4. Relationship of Parties. The relationship of Metavante to Spectrum,
Founding Members, Participants, and Xxxx Payment Customers under this Agreement
shall be that of an independent contractor and nothing contained in this
Agreement shall create or imply an agency relationship between such parties and
Metavante, nor shall this Agreement be deemed to constitute a joint venture or
partnership between any such parties and Metavante.
12.5. Notices. Except as otherwise specified in the Agreement, all
notices, requests, approvals, consents and other communications required or
permitted under this Agreement shall be in writing and shall be personally
delivered or sent by (i) first class U.S. mail, registered or certified, return
receipt requested, postage pre-paid; or (ii) U.S. express mail, or other,
similar overnight courier service to the address specified below. Notices shall
be deemed given on the day actually received by the party to whom the notice is
addressed, or shall be deemed received (i) two (2) days after mailing, if sent
by first class U.S. mail; or (ii) next day if by U.S. express mail or other,
similar overnight courier service.
In the case of Spectrum: Spectrum EBP, L.L.C.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XX 00000
Attn Chief Executive Officer
Fax: (000) 000-0000
With a copy to:
In the case of Metavante: Metavante Corporation
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxx Xxxx XX 00000
Attn: Xx. Xxxxx Xxxxxx
Fax: 000-000-0000
With a copy to: Metavante Corporation
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxx Xxxx XX 00000
Attn: Xx. Xxxxxx Daroga
Fax: 000-000-0000
12.6. Headings. Headings in this Agreement are for reference purposes only
and shall not effect the interpretation or meaning of this Agreement.
12.7. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all of
which together constitute one and the same agreement.
12.8. Waiver. No delay or omission by either party to exercise any right
or power it has under this Agreement shall impair or be construed as a waiver of
such right or power. A waiver by any party of any breach or covenant shall not
be construed to be a waiver of any succeeding breach or any other covenant. All
waivers must be in writing and signed by the party waiving its rights.
12.9. Severability. If any provision of this Agreement is held by court or
arbitrator of competent jurisdiction to be contrary to law, then the remaining
provisions of this Agreement will remain in full force and effect. The
obligations of the parties to pay amounts accrued prior to termination under
Section 2.5 hereunder, and all rights and obligations of the parties under
Articles 4, 6 (with respect to claims that arise prior to termination), 10 and
12, shall survive the expiration or early termination of this Agreement for any
reason.
12.10. Publicity. Neither party shall use the other party's name or
trademark or refer to the other party directly or indirectly in any media
release, public announcement or public disclosure relating to this Agreement or
its subject matter, in any promotional or marketing materials, lists or business
presentations, without consent from the other party for each such use or release
in accordance with this Section, provided that Metavante may include Spectrum's
name in Metavante's customer list and may identify Spectrum as its customer in
its sales
7
presentations and marketing materials without obtaining Spectrum's prior consent
unless and until Spectrum notifies Metavante to the contrary, in writing.
Spectrum agrees that neither it, its directors, officers, employees or agents
shall disclose this Agreement or any of the terms or provisions of this
Agreement to any other party. Notwithstanding the foregoing, at Metavante's
request Spectrum agrees to issue a joint press release prepared by Metavante to
announce the relationship established by the parties hereunder. All other media
releases, public announcements, and public disclosures by either party relating
to this Agreement or the subject matter of this Agreement (each, a
"Disclosure"), including promotional or marketing material, but not including
(i) announcements intended solely for internal distribution, or (ii) disclosures
to the extent required to meet legal or regulatory requirements beyond the
reasonable control of the disclosing party, shall be subject to review and
approval, which approval shall not be unreasonably withheld, by the other party
prior to release.
12.11. Solicitation. Neither party shall solicit the employees of the
other party involved in the performance of this Agreement for purposes of
employment during the Term of this Agreement.
12.12. No Third Party Beneficiaries. Each party intends that this
Agreement shall not benefit, or create any right or cause of action in or on
behalf of, any person or entity other than the parties hereto.
12.13. Construction. The parties each acknowledge that the limitations and
exclusions contained in this Agreement have been the subject of active and
complete negotiation between the parties and represent the parties' voluntary
agreement based upon the level of risk to the parties associated with their
respective obligations under this Agreement and the payments to be made to
Metavante and the charges to be incurred by Spectrum pursuant to this Agreement.
The parties agree that the terms and conditions of this Agreement shall not be
construed in favor of or against any party by reason of the extent to which any
party or its professional advisors participated in the preparation of this
document.
12.14. Force Majeure. Notwithstanding any provision contained in this
Agreement, neither party shall be liable to the other to the extent fulfillment
or performance if any terms or provisions of this Agreement is delayed or
prevented by revolution or other civil disorders; wars; acts of enemies;
strikes; lack of available resources from persons other than parties to this
Agreement; labor disputes; electrical equipment or availability failure; fires;
floods; acts of God; federal, state or municipal action; statute; ordinance or
regulation; or, without limiting the foregoing, any other causes not within its
control, and which by the exercise of reasonable diligence it is unable to
prevent, whether of the class of causes hereinbefore enumerated or not. This
clause shall not apply to the payment of any sums due under this Agreement by
either party to the other.
12.15. Jury Trial Waiver. Each party hereby knowingly, voluntarily, and
intentionally waives any and all rights it may have to a trial by jury based on,
or arising out of, under, or in connection with, this Agreement or any course of
conduct, course of dealing, statements (whether oral or written), or actions of
either party, regardless of the nature of the claim or form of action, whether
contract or tort, including negligence.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers as of the date first above written.
Metavante Corporation ("Metavante") Spectrum EBP, L.L.C. ("Spectrum")
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------------ --------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: President, Electronic Commerce Group Title: Chairman
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President, Electronic Xxxx Presentment and Payment
8
Exhibit 10.25
SCHEDULES
Schedule 1 Definitions
Schedule 2 Xxxx Payment Services
Schedule 3 Xxxx Payment Agreements
Schedule 4 Fees
Schedule 5 Service Levels
Schedule 6 Responsibility for Xxxx Payments
Schedule 8 Top 50 Financial Companies
The above schedules to this exhibit have been omitted. The schedules will be
furnished supplementally to the Securities and Exchange Commission upon request.
Exhibit 10.25
(continued)
EXHIBITS
Exhibit A Founding Member Agreement
Exhibit B ACH Authorization Agreement
The above exhibits to this document have been omitted. The exhibits will be
furnished supplementally to the Securities and Exchange Commission upon request.
