Exhibit 10.11
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________________________________________________________________________________
OUTSOURCING AGREEMENT
BY AND BETWEEN
XXXXXXXX & XXXXXX CORPORATION
acting on behalf of its Subsidiaries and Affiliates
and
METAVANTE CORPORATION
DATED AS OF
July 1, 2000
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TABLE OF CONTENTS
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Page
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1. DEFINITIONS............................................................................ 1
1.1 Definitions........................................................................ 1
1.2 References......................................................................... 1
1.3 Interpretation..................................................................... 1
2. TERM................................................................................... 1
2.1 Initial Term....................................................................... 1
2.2 Extensions......................................................................... 1
3. APPOINTMENT............................................................................ 1
3.1 Performance by Metavante Affiliates or Subcontractors.............................. 1
3.2 Third Party Products/Services...................................................... 1
3.3 Proper Instructions................................................................ 1
4. INTENTIONALLY OMITTED.................................................................. 1
5. SERVICES............................................................................... 1
5.1 Banking Application Services....................................................... 1
5.2 e-Pathway and Retail Delivery Services............................................. 2
5.3 Electronic Funds Delivery.......................................................... 2
5.4 New Services....................................................................... 2
5.5 Trust Services..................................................................... 2
6. FEES................................................................................... 2
6.1 Fee Structure...................................................................... 2
6.2 Pricing and Operational Assumptions................................................ 2
6.3 EFD Services....................................................................... 2
6.4 Training and Education............................................................. 2
6.5 Excluded Costs..................................................................... 2
6.6 Disputed Amounts................................................................... 3
6.7 Terms of Payment................................................................... 3
6.8 Modification of Terms and Pricing.................................................. 3
7. PERFORMANCE WARRANTY/EXCLUSIVE REMEDY/DISCLAIMER OF ALL OTHER WARRANTIES............... 3
7.1 Performance Warranty............................................................... 3
7.2 Performance Standards.............................................................. 3
7.3 Performance Warranty Exclusions.................................................... 3
7.4 Notice of and Correction of Defects................................................ 3
7.4 Backup Remedy...................................................................... 3
7.5 DISCLAIMER OF ALL OTHER WARRANTIES................................................. 3
8. MODIFICATION OR PARTIAL TERMINATION.................................................... 3
8.1 Modifications to Services.......................................................... 3
8.2 PARTIAL TERMINATION BY............................................................. 3
8.3 Partial Termination by Customer.................................................... 4
8.4 Ownership and Proprietary Rights................................................... 4
9. TERMINATION............................................................................ 4
9.1 Early Termination.................................................................. 4
9.2 For Cause.......................................................................... 4
9.3 For Insolvency..................................................................... 4
9.4 For Force Majeure.................................................................. 4
9.5 For Assignment..................................................................... 4
10. SERVICES FOLLOWING TERMINATION......................................................... 4
10.1 Termination Assistance............................................................. 4
10.2 Continuation of Services........................................................... 4
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11. LIMITATION OF LIABILITY/MAXIMUM DAMAGES ALLOWED........................................ 4
11.1 Equitable Relief.................................................................... 4
11.2 Exclusion of Incidental and Consequential Damages................................... 4
11.3 Maximum Damages Allowed............................................................. 5
11.4 Statute of Limitations.............................................................. 5
11.5 Economic Loss Waiver................................................................ 5
11.6 Liquidated Damages.................................................................. 5
11.7 Essential Elements.................................................................. 5
12. INSURANCE AND INDEMNITY................................................................ 5
12.1 Insurance........................................................................... 5
12.2 Indemnity........................................................................... 5
12.3 Indemnification Procedures.......................................................... 5
13. DISPUTE RESOLUTION..................................................................... 5
13.1 Representatives of Parties.......................................................... 6
13.2 Arbitration......................................................................... 6
13.3 Continuity of Performance........................................................... 6
14. AUTHORITY.............................................................................. 6
14.1 By.................................................................................. 6
14.2 By Customer......................................................................... 6
15. CONFIDENTIALITY AND OWNERSHIP.......................................................... 6
15.1 Customer Data....................................................................... 6
15.2 Metavante Systems................................................................... 6
15.3 Confidential Information............................................................ 6
15.4 Obligations of the Parties.......................................................... 6
15.5 Security............................................................................ 6
16. MANAGEMENT OF PROJECT.................................................................. 7
16.1 Account Representatives............................................................. 7
16.2 Development Projects and Technical Support.......................................... 7
17. REGULATORY COMPLIANCE.................................................................. 7
18. DISASTER RECOVERY...................................................................... 8
18.1 Services Continuity Plan............................................................ 8
18.2 Relocation.......................................................................... 8
18.3 Resumption of Services.............................................................. 8
18.4 Annual Test......................................................................... 8
19. GENERAL TERMS AND CONDITIONS........................................................... 8
19.1 Transmission of Data................................................................ 8
19.2 Equipment and Network............................................................... 8
19.3 Reliance on Data.................................................................... 8
19.4 Data Backup......................................................................... 8
19.5 Balancing and Controls.............................................................. 8
19.6 Use of Services..................................................................... 8
19.7 Regulatory Assurances............................................................... 8
19.8 IRS Filing.......................................................................... 9
19.9 Affiliates.......................................................................... 9
19.10 Future Acquisitions............................................................... 9
20. MISCELLANEOUS PROVISIONS............................................................... 9
20.1 Governing Law....................................................................... 9
20.2 Venue and Jurisdiction.............................................................. 9
20.3 Entire Agreement; Amendments........................................................ 9
20.4 Assignment.......................................................................... 9
20.5 Relationship of Parties............................................................. 10
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20.6 Notices............................................................................. 10
20.7 Headings............................................................................ 10
20.8 Counterparts........................................................................ 10
20.9 Waiver.............................................................................. 10
20.10 Severability........................................................................ 10
20.11 Attorneys' Fees and Costs........................................................... 10
20.12 Publicity........................................................................... 10
20.13 No Third Party Beneficiaries........................................................ 10
20.14 Force Majeure....................................................................... 11
20.15 Construction........................................................................ 11
20.16 Waiver of Jury Trial................................................................ 11
20.17 Nonsolicitation..................................................................... 11
Schedules
1.1 Definitions
1.2 Customer Affiliates
5.1A Core Services
5.1B Loan Origination Services
5.1C Connectware
5.1D ACH Services
5.1E Data Warehouse Services
5.1F Credit Services
5.2A DirectPC Services
5.2B Consumer Internet Banking Services
5.2D Business E-Banking Services
5.2E Cash Express Services
5.2F Payment Processing Services
5.3A Card Services
5.3B EFD Services
5.3C Merchant E-Commerce Services
5.5 Trust Services
6.1 Fee Schedule
7.1 Performance Standards
9.1 Termination Fee
Exhibits
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A Attorney-in-Fact Appointment
B Affidavit
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OUTSOURCING AGREEMENT
This Outsourcing Agreement ("Agreement") is made as of the 1st day of July,
2000, by and between Xxxxxxxx & Ilsley Corporation, a Wisconsin corporation
("Customer") and Metavante Corporation, a Wisconsin corporation ("Metavante").
In consideration of the payments to be made and services to be performed
hereunder, the parties agree as follows:
1. DEFINITIONS
1.1. Definitions. The defined terms of this Agreement shall have the
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meaning ascribed to them on attached Schedule 1.1.
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1.2. References. In this Agreement and the schedules and exhibits
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attached hereto, which are hereby incorporated and deemed a part of this
Agreement, references and mention of the word "include" and "including" shall
mean "includes, without limitation" and "including, without limitation," as
applicable.
1.3. Interpretation. In the event of a conflict between this Agreement
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and the terms of any exhibits and schedules attached hereto, the terms of the
schedules and exhibits shall prevail and control the interpretation of the
Agreement. The exhibits and schedules together with the Agreement shall be
interpreted as a single document.
2. TERM
2.1. Initial Term. This Agreement shall commence on the Effective Date
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and end on the seventh (7/th/) anniversary of the last day of the month in which
the Effective Date occurs ("Initial Term") provided that, during the ninety (90)
day period commencing on the fifth (5/th/) anniversary of the last day of the
month in which the Effective Date occurs, Customer may terminate this entire
Agreement or terminate any of the Services then received by Customer without
payment of a Termination Fee upon providing one hundred eighty (180) days
written notice to Metavante. Failure to provide timely notice during said ninety
(90) day period shall void Customer's option specified above.
2.2. Extensions. Unless this Agreement has been earlier terminated, at
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least one (1) year prior to the expiration of the Initial Term, Metavante shall
submit to Customer a written proposal for renewal of this Agreement. Customer
will respond to such proposal within three (3) months following receipt and
inform Metavante in writing whether or not Customer desires to renew this
Agreement. If Metavante and Customer are unable to agree upon the terms for
renewal of this Agreement at least six (6) months prior to the expiration of the
Initial Term, then this Agreement shall be automatically renewed for one (1)
twelve-month period under the same terms and conditions, including price.
Thereafter, this Agreement shall expire unless further renewed in writing by the
parties.
3. APPOINTMENT
3.1. Performance by Metavante Affiliates or Subcontractors. Customer
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understands and agrees that the actual performance of the Services may be made
by, and/or software used by Metavante to provide the Services may be licensed
from Affiliates of Metavante, or subcontractors of Metavante or its Affiliates
(collectively, the "Eligible Providers"). For purposes of this Agreement,
performance of the 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. Customer agrees to look solely to Metavante, and not to any Eligible
Providers, for satisfaction of any claims Customer may have arising out of or in
connection with this Agreement or the performance or non-performance of
Services.
3.2. Third Party Products/Services. The parties acknowledge that certain
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services and products necessary for the performance of the Services are being,
and in the future may be, provided by Third Parties who will contract directly
with Customer,. Metavante shall have no liability to Customer for information
and products supplied by, or services performed by, such Third Parties in
conjunction with the Services.
3.3. Proper Instructions. "Proper Instructions" shall mean those
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instructions sent to Metavante by letter, memorandum, telegram, cable, telex,
telecopy facsimile, computer terminal, e-mail or other "on line" system or
similar means of communication or given orally over the telephone or given in
person by one or more of the person(s) whose name(s) and signature(s) are listed
on the most recent certificate delivered by Customer to Metavante which lists
those persons authorized to give orders, corrections and instructions in the
name of and on behalf of Customer. Proper Instructions shall specify the action
requested to be taken or omitted.
4. INTENTIONALLY OMITTED
5. SERVICES Metavante agrees to provide Customer with the Services in
accordance with the applicable User Manuals and this Agreement.
5.1. Banking Application Services
A Core Services. Metavante agrees to provide Customer with
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the Core Services in accordance with the applicable Core Services User Manuals
and this Agreement.
B Loan Origination Services. Metavante agrees to provide
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Customer with the Loan Origination Services in accordance with the applicable
User Manuals, this Agreement and Schedule 5.1B.
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C Connectware. Metavante agrees to provide Customer with the
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Connectware services in accordance with the Connectware services manuals, this
Agreement and Schedule 5.1C.
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D Automated Clearing House Services. Metavante agrees to
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provide Customer the automated clearinghouse services ("ACH Services") subject
to the terms and conditions set forth on attached Schedule 5.1D.
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E Data Warehouse Services. Metavante agrees to provide
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Customer the data warehouse services ("Data Warehouse Services") subject to the
terms and conditions set forth on attached Schedule 5.1E.
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F Credit Services. Metavante agrees to provide Customer the
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credit services ("Credit Services") subject to the terms and conditions set
forth on attached Schedule 5.1F.
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5.2. e-Pathway and Retail Delivery Services
A DirectPC Services. The consumer account accessibility, fund
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transfer, account balance inquiry, xxxx payment and other remote access banking
services to be provided by Metavante, via telephone or personal computer
("DirectPC Services") shall be subject to the terms and conditions set forth on
attached Schedule 5.2A.
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B Consumer Internet Banking Services. The consumer account
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accessibility, fund transfer, account balance inquiry, xxxx payment and other
remote access banking services to be provided by Metavante, via the Internet
("Internet Banking Services") shall be subject to the terms and conditions set
forth on attached Schedule 5.2B
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C Branch Automation Systems. Metavante agrees to provide the
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licenses, products, interfaces and network management associated with the
automation of Customer's branch offices, in accordance with the Branch
Automation Agreement.
D Business E-Banking Services. The business account
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accessibility, fund transfer, account balance inquiry, xxxx payment, and other
remote accessibility services to be provided by Metavante, via personal computer
software or the Internet ("Business E-Banking") shall be subject to the terms
and conditions set forth on attached Schedule 5.2D.
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E Cash Express Services. The business customer account
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reconciliation, cash concentration, data interchange and related services to be
provided by Metavante ("Cash Express Services") shall be subject to the terms of
Schedule 5.2E.
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F Payment Processing Services. The payment processing services to
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be provided by Metavante ("Payment Processing Services") shall be subject to the
terms of Schedule 5.2F.
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5.3. Electronic Funds Delivery
A Card and Merchant Accounts. The card and merchant account
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services ("Card Services") to be provided by Metavante shall be subject to the
terms and conditions set forth on attached Schedule 5.3A
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B EFD Services. The electronic funds delivery services ("EFD
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Services") to be provided by Metavante shall be subject to the terms and
conditions set forth on attached Schedule 5.3B
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C Merchant E-Commerce Services. The credit card merchant e-
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commerce website development and hosting services ("Merchant E-Commerce
Services") to be provided by Metavante shall be subject to the terms of Schedule
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5.3C.
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5.4. New Services. If Customer wishes to receive any New Service which
is included in Metavante's then-current product offerings, Customer shall notify
Metavante and the parties shall implement the same in accordance with a mutually
acceptable schedule. If the New ServiceCustomer desires for Metavante to develop
a New Service which is not included in Metavante's then-current product
offerings, Customer shall submit a written request to Metavante in accordance
with Section 16.2A of this Agreement. Nothing contained herein shall obligate
Customer to obtain any New Service from Metavante. Metavante agrees to
reasonably cooperate with Customer or any Third Party designated by Customer for
the purpose of developing interfaces to the Metavante System. Such cooperation
may include, without limitation, licensing Customer or such Third Party to use
Metavante' application program interface specifications or interface software at
Metavante' then-current standard rate. Metavante may require any Third Party to
execute a confidentiality agreement prior to sharing information regarding the
Metavante System.
5.5. Trust Services. Metavante agrees to provide Customer the Trust
Services in accordance with attached Schedule 5.5.
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6. FEES
6.1. Fee Structure. Schedule 6.1 attached hereto (the "Fee Schedule") sets
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forth the costs and charges for the Services and Customer agrees to pay
Metavante the fees specified in the Fee Schedule for the Services rendered by
Metavante. These costs and charges are included in one or more of the following
categories:
A a minimum monthly fee for certain recurring, aggregated data
processing services based on stated volumes (the "Monthly Base Fee"); actual
volumes in excess of stated volumes shall result in additional charges as
further described in the Fee Schedule; and
B an hourly or daily fee for programming, training and related
Services not included in the Monthly Base Fee requested by Customer.
6.2. Pricing and Operational Assumptions. The Fee Schedule sets forth the
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operational and pricing assumptions made by Metavante. If the parties determine
that one or more of the pricing or operational assumptions listed in the Fee
Schedule is inaccurate or incomplete in any material respect, the parties will
negotiate in good faith regarding an equitable adjustment to any materially and
adversely impacted provisions of this Agreement.
6.3. EFD Services. In addition to the charges specified on the Fee
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Schedule, Customer shall be responsible for all interchange and network provider
fees and all dues, fees and assessments established by and owed to Visa and/or
MasterCard for the processing of Customer's transactions, and for all costs and
fees associated with changes to ATM (as defined in Schedule 5.3B ) protocol
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caused by Customer's use of the EFD Services.
6.4. Training and Education. Metavante will provide to Customer, at no
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charge, one set of each of the User Manuals in electronic format, or if not
available, two (2) hard copies. When the User Manuals are updated, Metavante
will provide the updates to Customer at no additional charge. Customer may make
additional copies of such User Documentation for its internal use only.
6.5. Excluded Costs. The fees set forth in the Fee Schedule do not include
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shipping and courier costs, telecommunication charges, LU charges, Expenses,
Third Party pass-through charges, workshop fees, training fees, late fees or
charges and Taxes, which shall be the responsibility of Customer.
6.6. Disputed Amounts. If Customer disputes any charge or amount on any
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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
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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.
6.7. Terms of Payment. All "one-time" fees shall be paid to Metavante as
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set forth in the Fee Schedule. All other amounts due hereunder shall be paid
within ten (10) days of invoice, unless otherwise provided in the Fee Schedule.
Undisputed charges not paid by the due date shall be subject to annual interest
at the rate of 12% or the highest rate permitted by law, whichever is lower.
Customer shall also pay any collection fees, court costs and reasonable
attorneys' fees 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.
6.8. Modification of Terms and Pricing. Commencing following the second
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anniversary of the Effective Date, all charges for Services shall be subject to
the annual adjustments (including CPI adjustments) set forth in the Fee
Schedule.
7. PERFORMANCE WARRANTY/EXCLUSIVE REMEDY/DISCLAIMER OF ALL OTHER WARRANTIES
7.1. Performance Warranty. Metavante does not warrant that the Services
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will be uninterrupted or error-free, but warrants that it will provide the
Services covered by this Agreement in a commercially reasonable manner in
substantial conformity with the applicable User Manuals (the "Performance
Warranty"). THIS PERFORMANCE WARRANTY IS SUBJECT TO THE WARRANTY EXCLUSIONS SET
FORTH BELOW IN SECTION 7.3 AND THE REMEDY LIMITATIONS SET FORTH BELOW IN SECTION
7.4.
7.2. Performance Standards
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A Metavante warrants that a portion of the Services covered by this
Agreement shall be provided in accordance with the Performance Standards set
forth in Schedule 7.1.
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B Within six (6) months after the Commencement Date, and annually
thereafter during the Term, Metavante and Customer shall review the Performance
Standards and make any mutually agreed upon adjustments to them as appropriate
to reflect improved performance capabilities associated with advances in
technology, processes and methods which are used by Metavante to perform the
Services. As new technologies and processes are introduced, Metavante and
Customer also will meet to discuss, and if mutually agreed, adopt additional
Performance Standards to reflect the impact of such technologies and processes
on the Services.
7.3. Performance Warranty Exclusions. Except as may be expressly agreed in
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writing by Metavante, Metavante's Performance Warranty does not apply to:
A defects, problems, or failures caused by the 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.
7.4. Notice of and Correction of Defects. Customer shall notify Metavante
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in writing of any alleged breach of this Performance Warranty. If the breach
consists of Metavante's failure to achieve a Performance Standard, Metavante
shall cause its performance to conform to the applicable Performance Standard
within ninety (90) days of Customer's Notice. If the breach consists of a
failure by Metavante to perform in accordance with the Performance Warranty,
Metavante shall have thirty (30) days to correct the alleged breach. During this
time period, Metavante shall use reasonable efforts, at its own expense, to
remedy the breach. Customer shall be responsible for making whatever appropriate
adjustments may be necessary to mitigate adverse effects on Customer until
Metavante remedies the breach. Metavante will, at Metavante's expense, assist
Customer in making such corrections through the most cost-effective means,
whether manual, by system reruns or program modifications.
7.5. Backup Remedy. If Metavante fails to remedy the breach in the time
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periods specified in Section 7.4 above, Customer may file a claim for Damages
pursuant to the dispute resolution procedure set forth in Section 13.1 below
and, in addition, terminate the Agreement for cause pursuant to Section 9.2
below. THE BACKUP REMEDY SET FORTH IN THIS SECTION 7.5 IS CUSTOMER'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.
7.6. DISCLAIMER OF ALL OTHER WARRANTIES. THIS PERFORMANCE WARRANTY, AND THE
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REPRESENTATIONS IN ARTICLE 14, 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 THE CUSTOMER WITH RESPECT TO THE
SERVICES PROVIDED UNDER THIS AGREEMENT.
8. MODIFICATION OR PARTIAL TERMINATION
8.1. Modifications to Services. Metavante may modify, amend, enhance,
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update, or provide an appropriate replacement for the software used to provide
the Services, or any element of its systems or processes at any time to: (i)
improve the Services or (ii) facilitate the continued economic provision of the
Services to Customer or Metavante, provided that neither the functionality of
the Services nor any applicable Performance Standards are materially adversely
affected. Metavante shall provide reasonable advance notice to Customer of
material modifications, enhancements, or replacements to the software used to
provide the Services.
8.2. Partial Termination by Metavante. Metavante may, at any time, withdraw
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any of the Services (other than the Initial Services) upon providing one hundred
eighty (180) days' prior written notice to Customer. Metavante may also
terminate any of the Services immediately upon any final regulatory,
legislative, or judicial determination that providing such Services is
inconsistent with applicable law or regulation. If Metavante terminates any
Service, Metavante agrees to assist Customer, without additional charge, in
identifying an alternate provider of such terminated Service. Metavante
represents that, as of the Effective Date, it has no knowledge of any final
regulatory, legislative or judicial determination that the provision of any of
the Initial Services is inconsistent with applicable law or regulation. In the
event a Service provided as part of the Monthly Base Fee is terminated by
Metavante, the parties agree to negotiate in good faith an appropriate reduction
in the Monthly Base Fee prior to termination of
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such Service(s).
8.3. Partial Termination by Customer.
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A Customer agrees that, during the Term, Customer shall obtain
exclusively from Metavante all of its requirements covered by the Initial
Services. If Customer breaches the foregoing covenant, Customer shall pay
Metavante a Termination Fee for the discontinued Service, as liquidated damages
and not as a penalty, provided that it shall not be a breach of the foregoing
covenants if Customer shall obtain a New Service from Metavante to replace an
existing Service. Notwithstanding the foregoing, Customer may terminate any
Services identified in Schedule 5.1A as being subject to termination without
penalty, without payment of any Termination Fee under Section 9 of this
Agreement, and the foregoing shall thereupon no longer apply to Customer with
respect to such Services.
B Unless otherwise agreed to by the parties in writing, Customer may
terminate any New Service upon one hundred eighty (180) days prior written
notice to Metavante. Termination of New Services shall not be subject to any
Termination Fee, unless the entire Agreement is terminated in a manner which
would entitle Metavante to receive a Termination Fee.
8.4. Ownership and Proprietary Rights. Metavante reserves the right to
--------------------------------
determine the hardware, software and tools to be used by Metavante in fulfilling
its duties under this Agreement. Metavante and Customer intend and agree that
Metavante shall retain title and all other ownership and proprietary rights in
and to the Metavante Proprietary Materials and information. Such ownership and
proprietary rights shall include any and all rights in and to patents,
trademarks, copyrights, and trade secret rights. Metavante and Customer agree
that Metavante Proprietary Materials and Information are not "work made for
hire" within the meaning of U.S. Copyright Act 17 U.S.C. Section 101.
9. TERMINATION
9.1. Early Termination. The terms and conditions set forth in attached
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Schedule 9.1 shall govern the early termination of this Agreement (or any
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Service which is part of the Initial Services).
9.2. For Cause. If either party fails to perform any of its material
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obligations under this Agreement and (i) does not cure such failure within
thirty (30) days (or any other cure period specifically set forth in the
Agreement) after being given notice specifying the nature of the failure, or
(ii) if the failure is not one that can reasonably be cured within thirty (30)
days, does not develop a plan to cure the failure and diligently proceed
according to the plan until the failure has been cured (provided that a failure
to make any payment when due shall not in any case be deemed a failure that
cannot reasonably be cured within thirty (30) days) then the non-defaulting
party may, by giving notice to the other party, terminate this Agreement as of
the date specified in such notice of termination, or such later date agreed to
by the parties, without prejudice to the non-defaulting party's right to collect
Damages (if the non-defaulting party is the Customer) or the Termination Fee (if
the non-defaulting party is Metavante).
9.3. For Insolvency. In addition to the termination rights set forth in
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Sections 9.1 and 9.2, subject to the provisions of Xxxxx 00, Xxxxxx Xxxxxx Code,
if either party becomes or is declared insolvent or bankrupt, is the subject to
any proceedings relating to its liquidation, insolvency or for the appointment
of a receiver or similar officer for it, makes an assignment for the benefit of
all or substantially all of its creditors, or enters into an agreement for the
composition, extension, or readjustment of all or substantially all of its
obligations, or is subject to regulatory sanction by any Federal Regulator, then
the other party may, by giving written notice to such party, may terminate this
Agreement as of a date specified in such notice of termination; provided that
the foregoing shall not apply with respect to any involuntary petition in
bankruptcy filed against a party unless such petition is not dismissed within
sixty (60) days of such filing.
9.4. For Force Majeure. In the event that Metavante fails to provide the
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Services in accordance with this Agreement for a period of forty-five (45) days
due to an event of force majeure (as described in Section 20.14 hereof),
Customer may terminate this Agreement upon written notice to Metavante delivered
within thirty (30) days thereafter, without payment of any Termination Fee.
9.5. For Assignment Customer may terminate this Agreement without payment
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of any Termination Fee upon written notice in the event that (a) Metavante
assigns this Agreement without Customer's consent in violation of Section 20.4,
or (b) Metavante is subject to a Change in Control which will result in a
transfer of Customer's Core Services to a new data processing platform.
10. SERVICES FOLLOWING TERMINATION
10.1. Termination Assistance. Following the expiration or early termination
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of this Agreement, Metavante shall provide Customer, at Customer's expense, all
necessary assistance to facilitate the orderly transition of Services to
Customer or its designee ("Termination Assistance"). As part of the Termination
Assistance, Metavante shall assist Customer to develop a plan for the transition
of all Services then being performed by Metavante under this Agreement, from
Metavante to Customer or its designee, on a reasonable schedule developed
jointly by Metavante and Customer. Prior to providing any Termination
Assistance, Metavante shall deliver to Customer a good faith estimate of all
such Expenses and charges including charges for custom programming services.
Customer understands and agrees that all Expenses and charges for Termination
Assistance shall be computed in accordance with Metavante's then-current
standard prices for such products, materials and services. Nothing contained
herein shall obligate Customer to receive Termination Assistance from Metavante.
10.2. Continuation of Services. Unless Metavante terminates this Agreement
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pursuant to Section 9.2 above, upon at least ninety (90) days' prior written
request by Customer, Metavante shall continue to provide Customer all Services
and the Effective Date of Termination shall be extended for a maximum period of
twelve (12) months. If Customer elects to receive the Services for such period,
Metavante's then-current standard pricing shall continue to apply to the
provision and receipt of such Services.
11. LIMITATION OF LIABILITY/MAXIMUM DAMAGES ALLOWED
11.1. Equitable Relief. Either party may seek equitable remedies, including
----------------
injunctive relief, for a breach of the other party's obligations under Article
15 of this Agreement, prior to commencing the dispute resolution procedures set
forth in Section 13.1 below.
11.2. Exclusion of Incidental and Consequential Damages. Independent of,
-------------------------------------------------
severable from, and to be enforced independently of any other provision of this
Agreement, NEITHER PARTY (INCLUDING WITH RESPECT TO CLAIMS BY CUSTOMER, ANY
ELIGIBLE PROVIDER) WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING
RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) IN CONTRACT, TORT, (INCLUDING
NEGLIGENCE) OR OTHERWISE, FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR
EXEMPLARY DAMAGES OF ANY KIND--including lost profits, loss of business, or
other economic damage, 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,
4
REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD
OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
11.3. 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 (including negligence) or otherwise, the total, aggregate
liability under this Agreement of Metavante and/or any Eligible Provider shall
in no circumstance exceed twenty-five million dollars ($25,000,000), provided,
however, that the foregoing shall not limit M&I'sMetavante' liability for
willful misconduct.
11.4. Statute of Limitations. No lawsuit or other action may be brought by
----------------------
either party hereto, or on any claim or controversy based upon or arising in any
way out of this Agreement, after one (1) year 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 (including negligence) or otherwise; provided, however, the
foregoing limitation shall not apply to the collection of any amounts due under
this Agreement.
11.5. Economic Loss Waiver. In addition to and not in limitation of any
--------------------
other provision of this Article 11, each party hereby knowingly, voluntarily,
and intentionally waives any right to recover from the other party, and Customer
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 or any Eligible Provider. 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 tangible 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.
11.6. Liquidated Damages. Customer acknowledges that Metavante shall suffer
------------------
a material adverse impact on its business if this Agreement is terminated prior
to expiration of the Term, and that the resulting damages may not be susceptible
of precise determination. Customer acknowledges that the Termination Fee is a
reasonable approximation of such damages and shall be deemed to be liquidated
damages and not a penalty.
11.7. Essential Elements. Customer and Metavante acknowledge and agree that
------------------
the limitations contained in this Article 11 are essential to this Agreement,
and that Metavante has expressly relied upon the inclusion of each and every
provision of this Article 11 as a condition to executing this Agreement.
12. INSURANCE AND INDEMNITY
12.1. Insurance. Metavante shall maintain for its own protection fidelity
---------
bond coverage for the 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 Operation
Center's activities due to physical loss of equipment.
12.2. Indemnity.
---------
A. By Customer. Customer shall indemnify Metavante from, and
defend Metavante against, any liability or expenses arising out of or relating
to (i) the inaccuracy or untruthfulness of any representation or warranty made
by Customer to Metavante, (ii) a violation of Federal, state, or other laws or
regulations for the protection of persons or members of a protected class or
category of persons by Customer or its employees or agents, (iii) sexual
discrimination or harassment by Customer or its employees or agents, (iv) work-
related injury or death caused by Customer or its employees or agents, (v)
tangible personal or real property damage resulting from Customer's acts or
omissions, or those of its employees or agents, and (vi) arising out of
Metavante' reliance on any data, instruction or information provided by Customer
pursuant to Proper Instructions. Customer shall be responsible for any costs and
Expenses incurred by Metavante in connection with the enforcement of this
Paragraph A.
B. By Metavante. Metavante shall indemnify Customer from, and
defend Customer against, any liability or expenses arising out of or relating to
(i) any claim by a third party that the Services or Metavante' software infringe
upon any United States patent, copyright or trademark of a third party, (ii) any
claim by a third party in connection with or arising from the Services, (iii)
the inaccuracy or untruthfulness of any representation or warranty made by
Metavante to Customer, (iv) a violation of Federal, state, or other laws or
regulations for the protection of persons or members of a protected class or
category of persons by Metavante or its employees or agents, (v) sexual
discrimination or harassment by Metavante, its employees, or agents, (vi) work-
related injury or death caused by Metavante, its employees, or agents, (vii)
tangible personal or real property damage resulting from Metavante' acts or
omissions, and (viii) Metavante' failure to perform the Services in accordance
with this Agreement. Metavante shall be responsible for any costs and expenses
incurred by Customer in connection with the enforcement of this Paragraph B.
12.3. 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.
13. DISPUTE RESOLUTION
5
13.1. Representatives of Parties. All disputes arising under or in
--------------------------
connection with this Agreement shall initially be referred to the Account
Representatives. If the Account Representatives are unable to resolve the
dispute within five (5) business days after referral of the matter to them, the
managers of the Account Representatives shall attempt to resolve the dispute.
If, after five (5) days they are unable to resolve the dispute, senior
executives of the parties shall attempt to resolve the dispute. If, after five
(5) days they are unable to resolve the dispute, the parties shall submit the
dispute to the chief executive officers of the parties for resolution. Neither
party shall commence legal proceedings with regard to a dispute until completion
of the dispute resolution procedures set forth in this Section 13.1, except to
the extent necessary to preserve its rights or maintain a superior position.
13.2. Arbitration. If the procedures in Section 13.1 above do not result in
-----------
resolution of the dispute within ten (10) business days after the chief
executive officers have received the necessary information, the dispute shall be
submitted to binding arbitration in Milwaukee, Wisconsin, conducted in
accordance with the Center for Public Resources ("CPR") Rules For Non-
Administered Arbitration of Business Disputes. Any controversy or dispute shall
be arbitrated by a single arbitrator either mutually agreed upon by the parties
or, absent agreement, appointed in accordance with the aforesaid CPR Rules. The
arbitration shall be governed by the United States Arbitration Act, 9 USC 1-16,
and judgment upon the award may be entered by any Court having jurisdiction
thereof. The arbitrators shall have case management authority and shall resolve
the controversy in a final award within 180 days from the commencement of the
arbitration action. All questions of arbitration shall be resolved by the
arbitrator appointed pursuant to this clause. In the event that the CPR no
longer promulgates rules as set forth above, then the arbitration shall be
administered under the rules of the American Arbitration Association or such
other recognized rules for resolution of disputes as the parties may mutually
agree upon.
13.3. Continuity of Performance. During the pendency of the dispute
-------------------------
resolution proceedings described in this Article 13, Metavante shall continue to
provide the Services so long as Customer shall continue to pay all undisputed
amounts to Metavante in a timely manner.
14. AUTHORITY
14.1. Metavante. Metavante warrants that:
---------
A Metavante has the right to provide the Services hereunder, using
all computer software required for that purpose. Metavante 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.
14.2. Customer. Customer warrants that it is a corporation validly
--------
existing and in good standing under the laws of the state of its incorporation.
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 Customer and this
Agreement is enforceable in accordance with its terms against Customer. No
approval, authorization or consent of any governmental or regulatory authorities
required to be obtained or made by Customer in order for Customer to enter into
and perform its obligations under this Agreement.
15. CONFIDENTIALITY AND OWNERSHIP
15.1. Customer Data. Customer shall remain the sole and exclusive owner of
-------------
all Customer Data and other Confidential Information (as hereinafter defined) of
Customer, regardless of whether such data is maintained on magnetic tape,
magnetic disk, or any other storage or processing device. All such Customer Data
and other Confidential Information 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 Customer's premises. "Customer Data" means
any and all data and information of any kind or nature submitted to Metavante by
Customer, or received by Metavante on behalf of Customer, in connection with the
Services.
15.2. Metavante Systems. Customer acknowledges that it has no rights in
-----------------
any software, systems, documentation, guidelines, procedures and similar related
materials or any modifications thereof and/or provided by Metavante, except with
respect to Customer's use of the same during the Term to process its data.
15.3. 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 with respect
to Customer, all Customer Data and including, with respect to Metavante, the
Metavante Software. 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 without reference to
the Confidential Information of the other 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.
15.4. Obligations of the Parties. Metavante and Customer shall hold the
--------------------------
Confidential Information of the other party in confidence and shall not disclose
or use such Confidential Information other than for the purposes contemplated by
this Agreement, and shall instruct their employees, agents, and contractors to
use the same care and discretion with respect to the Confidential Information of
the other party, an Eligible Provider, or of any Third Party utilized hereunder
that Metavante and Customer each require with respect to their 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 (including, in the case of
Metavante, Eligible Providers) of its confidentiality obligations hereunder and
not to attempt to circumvent any such security procedures and devices. Each
party's obligation under the preceding sentence may be satisfied by the use of
its standard form of confidentiality agreement, if the same reasonably
accomplishes the purposes here intended. 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, which shall include Eligible
Providers. Customer shall treat the confidential or proprietary information and
documentation of Eligible Providers as Metavante Confidential Information.
15.5. Security. Metavante shall be responsible for establishing and
maintaining safeguards against any disaster, loss or alteration of the Customer
Data in the possession of Metavante. Such safeguards shall be no less rigorous
than that Metavante uses to protect its own data of a
6
similar nature.
16. MANAGEMENT OF PROJECT
16.1. Account Representatives. Each party shall cause an individual to be
-----------------------
assigned ("Account Representative") to devote time and effort to management of
the Services under this Agreement.
16.2. Development Projects and Technical Support.
------------------------------------------
A. Upon Customer's written request, Metavante will develop and
provide to Customer a good faith estimate of any additional charges which
Customer may incur in connection with the operation of any new software, major
modification or enhancements developed by Metavante or the acquisition of Third
Party software. Subject to such development schedule as is mutually agreed upon
by the parties, Metavante shall develop enhancements or modifications to the
Metavante Software requested by Customer provided that (a) the enhancements or
modifications do not adversely affect the architectural integrity or performance
of Metavante Software as operated in Metavante' non-custom service bureau
environment; (b) the enhancements or modifications do not increase Metavante'
unit cost to provide Services for its other service bureau customers; and (c)
Customer shall pay all fees and costs related to such development project as
mutually agreed by the parties. In the event that Customer requests programming
enhancements from Metavante, Metavante agrees to provide an estimate of the
hours of programming services necessary to complete such enhancements within
fifteen (15) business days after receipt of detailed information necessary to
complete the estimation process. Metavante further agrees that, subject to
availability of qualified resources, Metavante shall commence development
efforts on such enhancements within forty-five (45) days after Metavante
receives approval from Customer to commence such development.
B. Competitive Advantage Enhancements. Customer understands and
agrees that Metavante provides the Services hereunder using Metavante Software
in a shared service bureau environment, and that it may not be commercially
practicable or technically feasible for Metavante to isolate or dedicate a
modification or enhancement to Customer's use. Customer may request, prior to
the initiation of any development project, that certain enhancements to
Metavante Software paid for by Customer and exceeding 2,000 hours of
professional services to develop ("Competitive Advantage Enhancements") be
isolated within Metavante' processing environment and dedicated to Customer's
exclusive use for a period of time. In the event that Customer so requests,
Metavante shall inform Customer of whether or not it is commercially practicable
and technically feasible for Metavante to dedicate the Competitive Advantage
Enhancement to Customer's exclusive use. If it is commercially practicable and
technically feasible to so dedicate the Competitive Advantage Enhancement, then,
notwithstanding any provision to the contrary in this Agreement, Metavante
agrees as follows:
(i) The features and functions of the Competitive Advantage
Enhancements shall not be made available to any other
Metavante service bureau customers without
Customer's consent for a period of six (6) months after
implementation of such Competitive Advantage
Enhancement. During such six (6) month period, all
information provided to Metavante by Customer
related to the relevant Competitive Advantage
Enhancement, and all specifically developed plans,
designs or specifications relating thereto, shall be
deemed Confidential Information for the purposes of
this Agreement. Nothing contained herein shall prohibit
Metavante from developing similar enhancements for
other customers if Metavante does not use the source
code or any documentation of the Competitive Advantage
Enhancements for such purpose. Notwithstanding this
Section 16.2B(i), Metavante reserves the right at any
time to revoke Customer's right to exclusive use of the
Competitive Advantage Enhancement in the event that
maintaining such Competitive Advantage Enhancement in a
dedicated environment shall become commercially
impracticable.
(ii) If, following expiration of the six (6) month period
set forth in subparagraph (i) above, Metavante offers
the Competitive Advantage Enhancement as a separately
priced service to other Metavante service bureau
customers, Metavante shall credit to Customer an amount
determined by multiplying the economic value to
Metavante for a new Metavante service bureau customer
who receives such new separately priced service by (a)
twenty-five percent (25%) for the first such new
customer and (b) ten percent (10%) for each new
additional customer, up to an aggregate maximum of one
hundred percent (100%) of fees paid by Customer to
develop the Competitive Advantage Enhancement,
provided, however, that, as a condition to receiving
such credits, (1) Customer shall be obligated to pay
for such service, and (2) Customer shall agree to serve
as a reference regarding such new service.
17. REGULATORY COMPLIANCE
A. Customer shall be solely responsible for monitoring and interpreting
(and for complying with, to the extent such compliance requires no action by
Metavante) the federal and state laws, rules and regulations pertaining to
Customer's business (the "Legal Requirements"). Based on Customer's Proper
Instructions, Metavante shall select the processing parameter settings, features
and options (collectively, the "Parameters") within Metavante's system that will
apply to Customer. Customer shall be responsible for determining that such
selections are consistent with the Legal Requirements and with the terms and
conditions of any agreements between Customer and its clients. In making such
determinations, Customer may rely upon the written descriptions of such
Parameters contained in the User Manuals. Metavante shall perform system
processing in accordance with the Parameters.
B. Subject to the foregoing, Metavante shall perform an on-going review
of federal laws, rules and regulations, including regulations promulgated by the
Federal Regulators and the Internal Revenue Service related to the Services (a
"Federal Requirement"). Metavante shall maintain the features and functions for
each of the Services to be in material compliance with all applicable Federal
Requirements, provided that for any new Federal Requirement arising after the
date of this Agreement Metavante will support such Federal Requirement through
changes to the Metavante Software or suitable procedures not involving changes
to the Metavante Software, without additional charge to Customer, to enable
Customer to comply with such Federal Requirement. In all other circumstances
relating to regulatory compliance of the Services, including state laws, rules
and regulations, the provisions of Section 5.4 above (New Services) shall apply.
7
C. In any event, Metavante shall work with Customer in developing and
implementing a suitable procedure or direction to enable Customer to comply with
federal and state laws, rules and regulations applicable to the Services being
provided by Metavante to Customer, including in those instances when Metavante
has elected to, but it is not commercially practicable to, modify the Metavante
Software prior to the regulatory deadline for compliance.
18. DISASTER RECOVERY
18.1. Services Continuity Plan. Metavante shall maintain throughout the
------------------------
Term of the Agreement a Services Continuity Plan (the "Plan") in compliance with
applicable regulatory requirements. "Disaster" shall have the meaning set forth
in the Plan. Review and acceptance of the Plan as may be required by any
applicable regulatory agency shall be the responsibility of Customer. Metavante
shall cooperate with Customer in conducting such reviews as such regulatory
agency may from time to time reasonably request. A detailed Executive Summary of
the Plan has been provided to Customer. Updates to the Plan shall be provided to
Customer without charge.
18.2. Relocation. If appropriate, Metavante shall relocate all affected
----------
Services to an alternate disaster recovery site as expeditiously as possible
after declaration of a Disaster, and shall coordinate with Customer all
requisite telecommunications modifications necessary to achieve full
connectivity to the disaster recovery site, in material compliance with all
regulatory requirements.
18.3. Resumption of Services. The Plan provides that, in the event of a
----------------------
Disaster, Metavante will be able to resume the Services in accordance therewith
within the time periods specified in the Plan. In the event Metavante is unable
to resume the Services to Customer within the time periods specified in the
Plan, Customer shall have the right to terminate this Agreement without payment
of the Termination Fee upon written notice to Metavante delivered within forty-
five (45) days after declaration of such Disaster.
18.4. Annual Test. Metavante shall test its Plan by conducting one (1)
-----------
test annually and shall provide Customer with a description of the test results
in accordance with applicable laws and regulations.
19. GENERAL TERMS AND CONDITIONS
19.1. Transmission of Data. The responsibility and expense for
--------------------
transportation and transmission of, and the risk of loss for, data and media
transmitted between Metavante and Customer shall be borne by Customer. Data
lost by Metavante following processing, including loss of data transmission,
shall either be restored by Metavante from its backup media or shall be
reprocessed from Customer's backup media at no additional charge to Customer.
19.2. Equipment and Network. Customer shall obtain and maintain at its
---------------------
own expense its own data processing and communications equipment as may be
necessary or appropriate to facilitate the proper use and receipt of the
Services. Customer shall pay all installation, monthly, and other charges
relating to the installation and use of communications lines between Customer's
datacenter and the Operations Center. Metavante maintains and will continue to
maintain a network control center with diagnostic capability to monitor
reliability and availability of the communication lines, but Metavante shall not
be responsible for the continued availability or reliability of such
communications lines.
19.3. Reliance on Data. Metavante will perform the Services described in
----------------
this Agreement on the basis of information furnished by Customer or, with
respect to Support Services, on the basis of information and Proper
Instructions, furnished by Customer. Metavante shall be entitled to rely upon
any such data, information, or instructions as provided by Customer. If any
error results from incorrect input supplied by Customer, Customer shall be
responsible for discovering and reporting such error and supplying the data
necessary to correct such error to Metavante for processing at the earliest
possible time.
19.4. Data Backup. Customer shall maintain adequate records for at least
-----------
ten (10) business days including (i) microfilm images of items being transported
to Metavante or (ii) backup on magnetic tape or other electronic media where
transactions are being transmitted to Metavante, from which reconstruction of
lost or damaged items or data can be made. Customer assumes all responsibility
and liability for any loss or damage resulting from failure to maintain such
records.
19.5. Balancing and Controls. Customer shall (a) on a daily basis, review
----------------------
all input and output, controls, reports, and documentation, to ensure the
integrity of data processed by Metavante; and (b) on a daily basis, check
exception reports to verify that all file maintenance entries and nondollar
transactions were correctly entered. Customer shall be responsible for
initiating timely remedial action to correct any improperly processed data.
19.6. Use of Services. Customer assumes exclusive responsibility for the
---------------
consequences of any Proper Instructions Customer may give Metavante, for
Customer's failure to properly access the Services in the manner prescribed by
Metavante, and for Customer's failure to supply accurate input information.
Customer agrees that, except as otherwise permitted in this Agreement or in
writing by Metavante, Customer will use the Services only for its own internal
business purposes to service its banking customers and clients and/or Customer's
Affiliates and will not sell or otherwise provide, directly or indirectly, any
of the Services or any portion thereof to any other Third Party. Notwithstanding
the foregoing, M&I Bank F.S.B. and/or Customer's other Affiliates may use the
Services to provide wholesale banking services to Third Parties and Customer's
Affiliates may use the Trust Services to provide trust support to
correspondents.
19.7. Regulatory Assurances. Metavante and Customer acknowledge and agree
---------------------
that the performance of these Services will be subject to regulation and
examination by Customer's regulatory agencies to the same extent as if such
Services were being performed by Customer. Upon request, Metavante agrees to
provide any appropriate assurances to such agency and agrees to subject itself
to any required examination or regulation. Customer agrees to reimburse
Metavante for reasonable costs actually incurred due to any such examination or
regulation that is performed primarily for the purpose of examining Services
used by Customer.
A. Notice Requirements. Customer shall be responsible for
complying with all regulatory notice provisions to any applicable governmental
agency, which shall include providing timely and adequate notice to the Chief
Examiner of the Federal Home Loan Bank Board, the Office of Thrift Supervision,
the Office of the Comptroller of the Currency, The Federal Deposit Insurance
Corporation, the Federal Reserve Board, or their successors, as applicable
(collectively, the "Federal Regulators"), as of the Effective Date of this
Agreement, identifying those records to which this Agreement shall apply and the
location at which such Services are to be performed.
B. Examination of Records. The parties agree that the records
maintained and produced under this Agreement shall, at all times, be available
at the Operations Center for examination and audit by governmental agencies
having jurisdiction over the Customer's
8
business, including any Federal Regulator. The Director of Examinations of any
Federal Regulator or his or her designated representative shall have the right
to ask for and to receive directly from Metavante any reports, summaries, or
information contained in or derived from data in the possession of Metavante
related to the Customer. Metavante shall notify Customer as soon as reasonably
possible of any formal request by any authorized governmental agency to examine
Customer's records maintained by Metavante, if Metavante is permitted to make
such a disclosure to Customer under applicable law or regulations. Customer
agrees that Metavante is authorized to provide all such described records when
formally required to do so by a Federal Regulator.
C. Audits. Metavante shall cause a Third Party review of the
Operations Center and related internal controls, to be conducted annually by its
independent auditors. Metavante shall provide to Customer, upon written request,
one copy of the audit report resulting from such review. Remote datacenters used
by Metavante in providing some of the Services shall be reviewed by Metavante's
internal auditors in accordance with procedures and on a schedule satisfactory
to the Federal Regulator responsible for supervision of Metavante. The audit
shall be prepared in accordance with applicable accounting industry standards
(e.g., SAS 70).
19.8. IRS Filing. Customer represents it has complied with all laws,
----------
regulations, procedures, and requirements in attempting to secure correct tax
identification numbers (TINs) for Customer's payees and customers and agrees to
attest to this compliance by an affidavit provided annually. Customer
authorizes Metavante to act as Customer's agent and sign on Customer's behalf
the Affidavit required by the Internal Revenue Service on Form 4804, or any
successor form. Exhibit A (Attorney-in-Fact Appointment) and Exhibit B
--------- ---------
(Affidavit) shall be executed by Customer contemporaneously with the execution
of this Agreement. Customer acknowledges that Metavante's execution of the Form
4804 Affidavit on Customer's behalf does not relieve Customer of responsibility
to provide accurate TINs or liability for any penalties which may be assessed
for failure to comply with TIN requirements.
19.9. Affiliates. Customer agrees that it is responsible for assuring
----------
compliance with this Agreement by those Affiliates receiving Services under this
Agreement. Customer agrees to be responsible for the submission of its
Affiliates' data to Metavante for processing and for the transmission to
Customer's Affiliates of such data processed by and received from Metavante.
Customer agrees to pay any and all fees owed under this Agreement for Services
rendered to its Affiliates.
19.10. Future Acquisitions. Customer acknowledges that Metavante has
-------------------
established the Fee Schedule and enters into this Agreement on the basis of
Metavante's understanding of the Customer's current need for Services and
Customer's anticipated future need for Services as a result of internally
generated expansion of its customer base. If the Customer expands its
operations by acquiring Control of additional financial institutions or the
Customer experiences a Change in Control (as hereinafter defined), the following
provisions shall apply:
A. Acquisition of Additional Entities. If Customer acquires
Control after the date hereof of one or more bank holding companies, financial
holding companies, banks, savings and loan associations, other financial
institutions or non-banking companies that are not currently Affiliates, then,
upon Customer's request, Metavante shall provide Services for such new
Affiliates and such Affiliates shall automatically be included in the definition
of "Customer"; provided that (a) the Conversion of each new Affiliate must be
scheduled at a mutually agreeable time (taking into account, among other things,
the availability of Metavante Conversion resources) and must be completed before
Metavante has any obligation to provide Services to such new Affiliate, and (b)
Customer shall pay conversion fees and expenses to Metavante in such amounts as
are mutually agreed upon by Customer and Metavante with respect to each new
Affiliate.
B. Change in Control of Customer. If a Change in Control
occurs with respect to Customer, Metavante agrees to continue to provide
Services under this Agreement; provided that (a) Metavante's obligation to
provide Services shall be limited to the entities comprising the Customer prior
to such Change in Control and (b) Metavante's obligation to provide Services
shall be limited in any and all circumstances to the number of accounts
processed in the 3-month period prior to such Change in Control occurring plus
50%.
C. Customer may acquire Control after the date hereof of one or
more bank holding companies, banks, savings and loan associations or other
financial institutions that are not currently Affiliates and which are, at the
time of such acquisition of Control by Customer, subject to an existing
agreement with Metavante for data processing services which requires such
institution to pay Metavante a termination fee in the event the agreement is
terminated prior to expiration of its then current term. If Customer elects to
have Metavante provide Services to such institution pursuant to Section 19.10A
hereof and to terminate the institution's existing agreement with Metavante,
Metavante shall adjust such institution's termination fee to reflect the
economic loss to Metavante from the early termination of such agreement, which
shall be calculated by first determining the difference between the Estimated
Remaining Value of the acquired institution's agreement and the expected revenue
to Metavante over the remaining Term of this Agreement from the acquired
institution's use of the Services hereunder (the "Economic Loss"), then
determining the present value of the Economic Loss over the remaining Term using
a discount rate of four percent (4%) annually (the "Present Value Economic
Loss"). Customer agrees to pay Metavante the Present Value Economic Loss in lieu
of any termination fee to which Metavante would have been entitled under its
agreement with the acquired institution.
20. MISCELLANEOUS PROVISIONS
20.1. Governing Law. The validity, construction and interpretation of
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this Agreement and the rights and duties of the parties hereto shall be governed
by the internal laws of the State of Wisconsin, excluding its principles of
conflict of laws.
20.2. Venue and Jurisdiction. In the event of litigation to enforce the
----------------------
terms of this Agreement, the parties consent to venue in an exclusive
jurisdiction of the courts of Milwaukee County, Wisconsin and the Federal
District Court for the Eastern District of Wisconsin. The parties further
consent to the jurisdiction of any federal or state court located within a
district which encompasses assets of a party against which a judgment has been
rendered, either through arbitration or litigation, for the enforcement of such
judgment or award against such party or the assets of such party.
20.3. Entire Agreement; Amendments. This Agreement, together with the
----------------------------
exhibits and schedules hereto, constitutes the entire agreement between
Metavante and the Customer 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 exhibits and schedules
hereto, may be amended only by an instrument in writing executed by the parties
or their permitted assignees.
20.4. 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 (a)
Metavante's consent need not be obtained in connection with the assignment of
this Agreement pursuant to a merger in which Customer is a party and as a result
of which the surviving Entity
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becomes an Affiliate of another bank holding company, bank, savings and loan
association or other financial institution, so long as the provisions of Section
19.10 are complied with; and (b) Metavante 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 the assets or the business of Metavante.
20.5. Relationship of Parties. The performance by Metavante of its duties
-----------------------
and obligations under this Agreement shall be that of an independent contractor
and nothing contained in this Agreement shall create or imply an agency
relationship between Customer and Metavante, nor shall this Agreement be deemed
to constitute a joint venture or partnership between Customer and Metavante.
20.6. Notices. Except as otherwise specified in the Agreement, all
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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.
In the case of Customer: Xxxxxxxx & Xxxxxx Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
For Billing Purposes: Xxxxxxxx & Xxxxxx Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx XX 00000
Attn: Xxxxxxxx Xxxxxxxxxx
In the case of Metavante: Metavante Corporation
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxx Xxxx XX 00000
Attn: Xxxx X. Xxxxxxxx
Senior Vice President, Sales & Marketing
Xxxxxx X. Xxxxxx
Senior Vice President and General Counsel
20.7. Headings. Headings in this Agreement are for reference purposes
--------
only and shall not affect the interpretation or meaning of this Agreement.
20.8. 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.
20.9. Waiver. No delay or omission by either party to exercise any right
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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.
20.10. Severability. The provisions of this Agreement shall be deemed
------------
severable, and the unenforceability of any one or more provisions will not
affect the enforceability of any other provisions. In addition, if any provision
of this Agreement, for any reason, is held by court or arbitrator of competent
jurisdiction to be unenforceable, the parties will substitute an enforceable
provision that, to the maximum extent possible in accordance with applicable
law, preserves the original intentions and economic positions of the parties.
Articles 10, 11 and 15 and Sections 20.1, 20.2, and 20.16 shall survive the
expiration or earlier termination of this Agreement for any reason.
20.11. Attorneys' Fees and Costs. If any legal action is commenced in
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connection with the enforcement of this Agreement or any instrument or agreement
required under this Agreement, the prevailing party shall be entitled to costs,
attorneys' fees actually incurred, and necessary disbursements incurred in
connection with such action, as determined by the court.
20.12. Publicity. Neither party shall use the other party's names or
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trademarks (Customer agrees that Metavante's names and trademarks include those
of Eligible Providers) or refer to such names or trademarks directly or
indirectly in any media release, public announcement or public disclosure
relating to this Agreement or its subject matter, or 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 Customer's name in Metavante's customer list
and may identify Customer as its customer in its sales presentations and
marketing materials without obtaining Customer's prior consent. Customer 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 Customer 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. Such approval
shall be deemed to be given if a party does not object to a proposed Disclosure
within ten (10) business days of receiving same. Disputes regarding the
reasonableness of objections to the joint press release or any Disclosures shall
be subject to the Dispute Resolution Procedures of Section 13.1.
20.13. 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 Customer and Metavante, provided
that applicable provisions of this Agreement shall inure to the benefit of
Eligible Providers.
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20.14. 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 or their agents, subcontractors, or suppliers; 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.
20.15. Construction. Metavante and Customer 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 Customer and Metavante
associated with their respective obligations under this Agreement and the
payments to be made to Metavante and the charges to be incurred by Metavante
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.
20.16. Waiver of Jury Trial. Each of Customer and Metavante hereby
--------------------
knowingly, voluntarily and intentionally waives any and all rights it may have
to a trial by jury in respect of any litigation based on, or arising out of,
under, or in connection with, this Agreement or any course of conduct, course of
dealing, statements (whether verbal or written), or actions of Metavante or
Customer, regardless of the nature of the claim or form of action, whether
contract or tort, including negligence.
20.17. Nonsolicitation. During the term of this Agreement, neither party
---------------
shall actively solicit for hire any employees of the other party, provided,
however, that nothing in this Section 20.17 shall be deemed or construed to
prevent solicitation, recruitment or hiring of any employee of the other party
who first initiates contact with the soliciting, recruiting or hiring party, so
long as such party did not engage in any activity intended specifically to
encourage the other party's employees to initiate such contact. General
advertisements shall not be deemed violative of this restriction.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
in their names as of the date first above written.
METAVANTE CORPORATION ("Metavante")
By: _______________________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: President and Chief Executive Officer
XXXXXXXX & ILSLEY CORPORATION ("Customer")
By: _______________________________________
Name: Xxxxx X. Xxxxxxx
Title: Chairman and CEO
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Index to Schedules and Exhibits
Schedules
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1.1 Definitions
1.2 Customer Affiliates
5.1A Core Services
5.1B Loan Origination Services
5.1C Connectware
5.1D ACH Services
5.1E Data Warehouse Services
5.1F Credit Services
5.2A DirectPC Services
5.2B Consumer Internet Banking Services
5.2D Business E-Banking Services
5.2E Cash Express Services
5.2F Payment Processing Services
5.3A Card Services
5.3B EFD Services
5.3C Merchant E-Commerce Services
5.5 Trust Services
6.1 Fee Schedule
7.2 Performance Standards
9.1 Termination Fee
Exhibits
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A Attorney-in-Fact Appointment
B Affidavit
The above schedules and exhibits have been omitted. These schedules and
exhibits will be furnished supplementally to the Securities and Exchange
Commission upon request.
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