STORED VALUE CARD PROCESSING AGREEMENT
Exhibit
10.5
This
Stored Value Card Processing Agreement is made as of the 14th
day of
June, 2006 (the “Effective Date”), by and between Xxxxxx
Beaumont, Inc.,
a
Florida corporation ("Customer"), and Metavante
Corporation,
a
Wisconsin corporation ("Metavante").
Customer
desires Metavante to provide to Customer the services set forth in this
Agreement and Metavante desires to provide such services to Customer, all
as
provided in this Agreement.
THEREFORE,
in consideration of the payments to be made and services to be performed
hereunder, upon the terms and subject to the conditions set forth in this
Agreement and intending to be legally bound, the parties hereto agree as
follows:
Metavante
shall provide to Customer and Customer shall receive from Metavante, all
upon
the terms and conditions set forth in this Agreement, the Services specified
in
this Agreement. The term of this Agreement shall commence on the Effective
Date
and end on the
thirty-sixth (36th)
month
anniversary of the last day of the month in which the Commencement Date occurs
(the “Initial Term”). The parties also agree to use their best efforts to
perform the Implementation(s) such that the Commencement Date occurs on or
before August 7, 2006.
As
of the
Effective Date, the parties acknowledge that this Agreement includes the
following Schedules:
|
Termination
Fee Schedule
|
|
|
Services
and Charges Schedule
|
|
As
of the
Effective Date, the parties acknowledge that this Agreement includes Exhibit
A
attached hereto.
As
of the
Effective Date, the parties acknowledge that Services will be provided for
Customer and the following Affiliates of Customer: ___none__.
The
general terms and conditions and all schedules and exhibits attached hereto
are
incorporated herein and deemed part of this Agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed on
their
behalf as of the date first above written.
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METAVANTE
CORPORATION
0000
X. Xxxxx Xxxx Xxxx
Xxxxx
Xxxx, XX 00000
By: /s/
Xxxxx
X. X’Xxxxxx
Name: Xxxxx
X. X’Xxxxxx
Title: President
and Chief Operating Officer
Payment
Solutions Group
By: /s/
Xxxxxxx X. Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Senior
Vice President, Issuing Solutions
|
XXXXXX
BEAUMONT, INC.
0000
00xx
Xxxxxx Xxxx
Xxxxxxxxx,
XX 00000
By: /s/
Xxxx Xxxxxx
Name: Xxxx
Xxxxxx
Title: President
By:
Name:
Title:
|
TERMS
AND CONDITIONS
| 1. |
CONSTRUCTION
|
1.1. Definitions.
Capitalized terms shall have the meaning ascribed to them in Section 18 of
this
Agreement.
1.2. References.
In this
Agreement, references and mention of the word "includes" and "including"
shall
mean "includes, without limitation" and "including, without limitation,"
as
applicable, and the word “any” shall mean “any or all”. Headings in this
Agreement are for reference purposes only and shall not affect the
interpretation or meaning of this Agreement.
1.3. Interpretation.
In the
event of a conflict between the general terms and conditions 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 with
respect to the subject matter of the applicable schedules and/or exhibits.
The
exhibits and schedules together with the general terms and conditions shall
be
interpreted as a single document. 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.
| 2. |
TERM
|
Unless
this Agreement has been earlier terminated as provided herein, this Agreement
shall continue for the Initial Term and shall be automatically renewed for
additional twelve-month periods (each, a "Renewal Term") unless either party
shall provide the other party with written notice of termination at least
ninety
(90) days prior to the expiration date for the Initial Term or Renewal Term,
as
applicable. Unless otherwise provided in the Services and Charges Schedules
hereto, or as otherwise agreed in writing by the parties, the charges for
Services provided by Metavante to Customer during any such Renewal Term shall
be
calculated in accordance with Metavante's then-current rates.
| 3. |
IMPLEMENTATION
|
3.1. Development
of Implementation Plan.
Metavante, in consultation with Customer, will develop a detailed, customized
plan for the Implementation (the "Implementation Plan"). The Implementation
Plan
will include: (i) a description of the tasks to be performed for the
Implementation; (ii) allocation of responsibility for each of such tasks;
and
(iii) the schedule on which each task is to be performed. The Implementation
project leaders for each party shall regularly communicate on the progress
of
the Implementation, the feasibility of the Implementation Dates specified
in the
Implementation Plan, and such other matters which may affect the smooth
transition of the Services. Customer agrees to maintain an adequate staff
of
persons who are knowledgeable about the banking, data processing and information
technology systems currently used by Customer. Customer further agrees to
provide such services and to perform such obligations as are specified as
Customer's responsibility in the Implementation Plan and as necessary for
Customer to timely and adequately meet the scheduled dates set forth therein.
Each party shall cooperate fully with all reasonable requests of the other
party
made necessary to effect the Implementation in a timely and efficient manner.
The Implementation Plan may be amended by mutual agreement of the parties.
3.2. Implementation
Resources.
Metavante and Customer will provide a team of qualified individuals to assist
in
the Implementation effort. The anticipated team and description of their
responsibilities is set forth in the Implementation Plan.
| 4. |
SERVICES
|
A. General.
Subject
to the terms of this Agreement, Metavante agrees to provide the services
set
forth in the Services and Charges Schedule attached hereto (the “Services”) for
Customer, provided that (a) Customer contracts with a financial institution(s)
approved by Metavante to serve as the issuer of Customer’s Stored Value Cards
(each, an “Issuer”), and (b) the Issuer executes the Agreement attached hereto
as Exhibit A.
B. Card
Production Services.
Delivery of cards will be deemed complete with respect to any order upon
Metavante’s delivery of the supply of cards to either the United States Post
Office, a common carrier or courier, or Customer’s designated employee or agent.
Following delivery of the cards in accordance with the foregoing, the card
production services with respect to such order shall be completed, and Metavante
shall have no further responsibility whatsoever for any use, abuse, loss,
damage, alteration, or theft of cards following delivery. Metavante shall
be
responsible to produce cards in conformance with applicable network standards
and for the proper preparation of mailers (e.g., sealing and addressing).
Customer shall notify Metavante in writing of any alleged breach of the
foregoing by Metavante. Metavante’s sole responsibility, and Customer’s sole
remedy, shall be to provide, at Metavante’s expense, a conforming replacement
card to the appropriate cardholder(s).
C. Verification
and Notice.
Customer shall notify Metavante of any data entry errors, including any
unauthorized transactions, new accounts, new files, or unauthorized amounts,
within thirty (30) days of the date of the applicable Metavante report.
Customer’s failure to notify Metavante of errors or discrepancies within such
thirty (30) -day period shall constitute Customer’s agreement that it has
reviewed and approved the content of each such report using proper internal
control review procedures. Metavante does not guarantee that the Services
will
be one hundred percent (100%) error-free or that the variables and options
selected and approved by Customer will produce a result, which is problem-free
and otherwise meets the expectations of Customer. The only responsibility
Metavante shall have with regard to (i) data entry errors and other similar
human errors which occur in the usual course of business and (ii) unsatisfactory
data processing results caused by options and variables selected or approved
by
Customer is, respectively, to correct such errors as they are discovered
and to
assist Customer in revising data processing options and variables to achieve
a
satisfactory result.
D. Settlement.
Metavante will settle all Stored Value Card transactions directly with the
Issuer. Notwithstanding that Metavante will settle all Stored Value Card
transactions with the Issuer, Customer shall be responsible to Metavante
for the
full amount of any Stored Value Card transactions processed by Metavante
and
shall, upon Metavante’s invoice therefore, reimburse Metavante for such amounts
in the event that Metavante is unable to settle the transactions with the
Issuer
for any reason.
E.
Visa/MasterCard/Discover/Network
Requirements.
(i)
Customer shall comply with the articles, bylaws, operating regulations, rules,
procedures and policies of Visa, MasterCard, Discover Network and/or other
Networks, as applicable, and shall be solely responsible, as between Customer
and Metavante, for any claims, liabilities, lawsuits and expenses arising
out of
or caused by Customer’s failure to comply with the same.
(ii)
Customer acknowledges and agrees that, because Metavante is Customer's
processor, Metavante may receive certain services from MasterCard, Visa,
Discover Network and/or other Networks that Customer could receive directly
in
the event Customer performed the processing services for itself. Customer
agrees
that Metavante may pass-through to Customer any fees charged to Metavante
for
such services, and that Metavante has no responsibility or liability to Customer
for any such services.
(iii)
Prior to the transfer of the Services to Customer or its designee upon the
Effective Date of Termination, Customer shall take all actions required by
the
applicable Network to effect the transfer. In addition to the charges specified
on the Services and Charges Schedule, Customer shall be responsible for all
interchange and network provider fees; and all dues, fees, fines, and
assessments established by and owed by Customer to any Network.
| 5. |
FEES
|
5.1. Services
and Charges Schedule.
The fees
for the Initial Services are set forth in the attached Services and Charges
Schedule. Customer agrees to pay Metavante the fees specified in the Services
and Charges Schedule for such services. Fees for New Services shall be as
set
forth in Metavante's then current standard pricing or, if applicable, the
fees
mutually agreed upon by the parties.
5.2. Implementation.
Customer agrees to pay Metavante the fees relating to the Implementation
on the
terms and conditions set forth on the Services and Charges Schedule. In
addition, Customer agrees to reimburse Metavante (i) for all Expenses reasonably
incurred in connection with the Implementation; (ii) for Implementation of
accounts or products not identified in the Implementation Plan as of the
Effective Date; and (iii) for Metavante personnel or any independent contractors
who perform services which are identified as the responsibility of the Customer
in the Implementation Plan; and (iv) for Implementation related charges which
may arise after the Implementation.
5.3. Excluded
Costs.
The
fees set forth in the Services and Charges Schedule do not include Expenses,
late fees or charges, or Taxes, all of which shall be the responsibility
of
Customer. In addition to the charges specified on the Services and Charges
Schedule, Customer shall be responsible for all interchange and network provider
fees.
5.4. Disputed
Amounts.
If
Customer disputes any charge or amount on any invoice and such dispute cannot
be
resolved promptly through good faith discussions between the parties, Customer
shall pay the amounts due under this Agreement less the disputed amount,
and the
parties shall diligently proceed to resolve such disputed amount. An amount
will
be considered disputed in good faith if (i) Customer delivers a written
statement to Metavante on or before the due date of the invoice, describing
in
detail the basis of the dispute and the amount being withheld by Customer,
(ii)
such written statement represents that the amount in dispute has been determined
after due investigation of the facts and that such disputed amount has been
determined in good faith, and (iii) all other amounts due from Customer that
are
not in dispute have been paid in accordance with the terms of this
Agreement.
5.5. Terms
of Payment.
Any and
all amounts payable under this Agreement shall be due thirty (30) days following
the date of invoice, unless otherwise provided in the Services and Charges
Schedule. Undisputed charges not paid by the applicable 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, reasonable attorneys’ fees, and other fees, costs, and charges 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.
Customer agrees to maintain a depository account with a financial institution
reasonably acceptable to Metavante for the payment of amounts payable hereunder,
and hereby authorizes Metavante to initiate debit entries to such account
for
the payment of amounts payable hereunder. Customer agrees to provide Metavante
with any and all information necessary for Metavante to initiate such debit
entries via the Automated Clearing House (ACH) system.
5.6. Modification
of Terms and Pricing.
Charges
for all Services shall be subject to adjustments which shall not exceed,
in
aggregate effect, the greater of (i) an annual rate of five percent (5%),
or
(ii) the change to the Employment Cost Index over the applicable
period.
5.7. Training
and Education.
A. Metavante
shall provide training in accordance with the training schedule developed
pursuant to the Implementation Plan. The sessions shall be held at a Metavante
datacenter location to be determined by Metavante. Customer shall be responsible
for all Expenses incurred by the participants and Metavante's trainers in
connection with such education and training.
B. Metavante
will provide to Customer, at no charge, one set of each of the Documentation.
When the Documentation is updated, Metavante will provide the updates to
Customer at no additional charge. Additional sets of the Documentation may
be
purchased by Customer at Metavante's then current price list. Customer may
not
modify, reproduce, or distribute the Documentation without the express consent
of Metavante.
| 6. |
PERFORMANCE
WARRANTY/EXCLUSIVE REMEDY/DISCLAIMER OF ALL OTHER
WARRANTIES
|
6.1. Performance
Warranty.
Metavante warrants that it will provide the Services in a commercially
reasonable manner in substantial conformity with the Documentation (the
“Performance Warranty”). THIS PERFORMANCE WARRANTY IS SUBJECT TO THE
WARRANTY EXCLUSIONS SET FORTH BELOW IN SECTION 6.2.
6.2. 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 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.
|
6.3. DISCLAIMER
OF ALL OTHER WARRANTIES.
THIS
PERFORMANCE WARRANTY, AND THE WARRANTIES IN ARTICLE 12
HEREOF,
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 CUSTOMER WITH RESPECT TO THE SERVICES PROVIDED UNDER
THIS
AGREEMENT.
| 7. |
MODIFICATION
OR PARTIAL TERMINATION
|
7.1. Modifications
to Services.
Metavante may relocate, modify, amend, enhance, 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 or withdraw, modify or amend
any
function of the Services, provided that the functionality of the Services
is not
materially adversely affected.
7.2. Partial
Termination by Metavante.
Except
as may be provided in any Schedule, Metavante may, at any time, withdraw
any of
the Services upon providing ninety (90) days' prior written notice to Customer,
provided that Metavante withdraws such Service(s) from its entire customer
base.
Metavante may also terminate any function or any Services immediately upon
any
final regulatory, legislative, or judicial determination that providing such
function or Services is inconsistent with applicable law or regulation or
the
rights of any Third Party. If Metavante terminates any Service, Metavante
agrees
to assist Customer, without additional charge, in identifying an alternate
provider of such terminated Service.
7.3. Partial
Termination by Customer.
Customer
agrees that, during the Term, Customer shall obtain exclusively from Metavante
all of its requirements covered by the Services. If Customer breaches the
foregoing covenant, the same shall constitute a partial termination of this
Agreement and Customer shall pay Metavante the Termination Fee for the affected
Service, as liquidated damages and not as a penalty.
| 8. |
TERMINATION/DEFAULT
|
8.1. Early
Termination.
The
terms and conditions set forth on the Termination Fee Schedule of the Agreement
shall govern the early termination of this Agreement (or any
Service).
8.2. For
Cause. If
either
party fails to perform any of its material obligations under this Agreement
(a
“Default”) and does not cure such Default in accordance with this Section, 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, and/or recover Damages. A party may
terminate the Agreement in accordance with the foregoing if such party provides
written notice to the defaulting party and either (a) the defaulting party
does
not cure the Default within thirty (30) days of the defaulting party’s receipt
of notice of the Default, if the Default is capable of cure within thirty
(30)
days, or (b) if the Default is not capable of cure within thirty (30) days,
the
defaulting party does not both (i) implement a plan to cure the Default within
thirty (30) days of receipt of notice of the Default, and (ii) diligently
carry-out the plan in accordance with its terms. The parties acknowledge
and
agree that a failure to pay any amount when due hereunder shall be a Default
that is capable of being cured within thirty (30) days. The parties acknowledge
and agree that any error in processing data, preparation or filing of a report,
form, or file, or the failure to perform Services as required hereunder shall
be
satisfactorily cured upon the completion of accurate re-processing, the
preparation or filing of the accurate report, form, or file, or the
re-performance of the Services in accordance with applicable requirements,
respectively.
8.3. For
Insolvency.
In
addition to the termination rights set forth in Sections 8.1
and
8.2,
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. |
POST
TERMINATION RIGHTS AND
RESPONSIBILITIES
|
9.1. Termination
Assistance.
Following the expiration or early termination of this Schedule, 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 Schedule, 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.
9.2. Continuation
of Services.
Unless
Metavante terminates this Schedule for Customer's default, 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.
9.3. Trailing
Activity.
For at
least 120 days following the Effective Date of Termination, Customer shall
maintain a settlement account with Metavante or the depository institution
designated by Metavante which Metavante may charge to settle any trailing
activity which accrues prior to the Effective Date of Termination, and which
is
not known to Metavante until sometime thereafter (including any Chargeback
of a
Transaction which is authorized prior to the Effective Date of Termination).
Customer shall pay to Metavante fees at Metavante’s then current standard rates
to settle such trailing activity. Any form of termination notwithstanding,
to
protect the reputations of Customer and Metavante, the reasons for termination
shall remain absolutely confidential outside of Customer’s and Metavante’s
internal personnel, except for reporting that may be required under federal
law.
| 10. |
LIMITATION
OF LIABILITY/MAXIMUM DAMAGES ALLOWED
|
10.1. Equitable
Relief.
Either
party may seek equitable remedies, including injunctive relief, for a breach
of
the other party’s obligations under Article 13 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) 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, REGARDLESS OF WHETHER THE
PARTY
LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT
KNEW OF THE POSSIBILITY THEREOF.
10.3. Maximum
Damages Allowed.
Notwithstanding any other provision of this Agreement, and for any reason,
including breach of any duty imposed by this Agreement or independent of
this
Agreement, and regardless of any claim in contract, tort (including negligence)
or otherwise, Metavante's total, aggregate liability under this Agreement
shall
in no circumstance exceed payments made to Metavante by Customer for the
Service
to which the claim relates during the three (3) months prior to the act or
event
giving rise to such claim.
10.4. 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 Metavante under this
Agreement.
10.5. Tort
Claim 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. 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.
10.6. 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.
10.7. Essential
Elements.
Customer
and Metavante 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.
| 11. |
INSURANCE
AND INDEMNITY
|
11.1. Insurance.
Metavante shall maintain for its own protection fidelity bond coverage for
its
personnel; insurance coverage for loss from fire, disaster or other 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 Services due to physical loss of
equipment.
11.2. Indemnity.
Customer
shall indemnify Metavante from, defend Metavante against, and pay any final
judgments awarded against Metavante, resulting from any claim brought by
a Third
Party against Metavante based on Metavante’s performance of the Services in
compliance with Customer’s specifications or instructions, or Metavante’s use of
trademarks or data supplied by Customer to perform the Services.
| 12. |
AUTHORITY
|
12.1. Metavante.
Metavante warrants that:
A.
Metavante
has the right to provide the Services hereunder, using all computer software
required for that purpose.
B.
Metavante
is a corporation validly existing and in active status under the laws of
the
State of Wisconsin. 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 have 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.
12.2. Customer.
Customer
warrants that:
A. Customer
has all required licenses and approvals necessary to use the Services in
the
operation of its business.
B. Customer
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 have 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 is required to be obtained or made
by
Customer in order for Customer to enter into and perform its obligations
under
this Agreement.
| 13. |
CONFIDENTIALITY
AND OWNERSHIP
|
13.1. Customer
Data.
Customer
shall remain the sole and exclusive owner of all Customer Data and its
Confidential Information (as defined in Section 13.3), 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.
13.2. Metavante
Systems.
Customer
acknowledges that it has no rights in any software, systems, documentation,
guidelines, procedures and similar related materials or any modifications
thereof provided by Metavante, except with respect to Customer's use of the
same
during the Term to process its data.
13.3. 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, with respect to Customer, all Customer Data. Confidential Information
shall not include: (i) information which is or becomes publicly available
(other
than by the party 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.
13.4. Obligations
of the Parties. Except
as
permitted under this Section 13.4 and applicable law, 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 party. Each party 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, to the extent that Confidential Information
of Customer may be subject to the Privacy Regulations, as permitted by the
Privacy Regulations, 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 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 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. 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. A party may disclose Confidential Information of the
other
party if required to do so by subpoena, court or regulatory order, or other
legal process, provided the party notifies the other party of its receipt
of any
such process, and reasonably cooperates, at the other party’s expense, with
efforts of the disclosing party to prevent or limit disclosure in response
to
such process.
13.5. Information
Security.
Metavante shall be responsible for establishing and maintaining an information
security program that is designed to (i) ensure the security and confidentiality
of Customer Data, (ii) protect against any anticipated threats or hazards
to the
security or integrity of Customer Data, and (iii) protect against unauthorized
access to or use of Customer Data that could result in substantial harm or
inconvenience to Customer or any of its customers. Customer
shall be responsible for maintaining security for its own systems, servers,
and
communications links as necessary to (i) protect the security and integrity
of
Metavante's systems and servers on which Customer Data is stored, and (ii)
protect against unauthorized access to or use of Metavante's systems and
servers
on which Customer Data is stored.
13.6. Ownership
and Proprietary Rights.
Metavante reserves the right to determine the hardware, software and tools
to be
used by Metavante in performing the Services. Metavante shall retain title
and
all other ownership and proprietary rights in and to the Metavante Proprietary
Materials and Information, and any and all derivative works based thereon.
Such
ownership and proprietary rights shall include any and all rights in and
to
patents, trademarks, copyrights, and trade secret rights. Customer agrees
that
the 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.
13.7. The
Privacy Regulations.
In the
event that Customer requests Metavante to disclose to any Third Party or
to use
any of Customer’s Confidential Information, and such Confidential Information is
or may be subject to the Privacy Regulations, Metavante reserves the right,
prior to such disclosure or use, (i) to review any initial, annual, opt-out,
or
other privacy notice that Customer issued with respect to such Confidential
Information pursuant to the Privacy Regulations, and if requested by Metavante,
Customer shall promptly provide Metavante with any such notice, and (ii)
to
decline to disclose to such Third Party or to use such Confidential Information
if Metavante, in Metavante’s sole discretion, believes that such disclosure or
use is or may be prohibited by the Privacy Regulations or by any such
notice.
13.8. Publicity.
Neither
party shall 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 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. 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. Customer agrees that such
press release shall be deemed approved by Customer in the event that, within
five (5) Business Days of receiving Metavante’s proposed press release, Customer
does not provide written notice to Metavante describing in reasonable detail
Customer’s objections to the press release. 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 five (5) Business Days of receiving same.
| 14. |
DISASTER
RECOVERY
|
14.1. Services
Continuity Plan.
Metavante shall maintain throughout the Term of the Agreement a Services
Continuity Plan (the "Plan") in compliance with applicable regulatory
requirements. 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.
14.2. 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. "Disaster"
shall
have the meaning set forth in the Plan.
14.3. 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.
14.4. 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.
| 15. |
GENERAL
TERMS AND CONDITIONS
|
15.1. Data
Backup.
Customer shall maintain adequate records for at least ten (10) Business Days
including 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.
15.2. Transmission
of Data.
If the
Services require transportation or transmission of data between Metavante
and
Customer, 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 receipt,
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.
15.3. Reliance
on Data.
Metavante will perform the Services described in this Agreement on the basis
of
information 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.
In
providing the Services, Metavante shall rely on the instructions and directions
of Customer, and shall not be responsible for any liability arising from
Metavante’s proper performance of the Services in accordance with Customer’s
instructions.
15.4. 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
bona
fide customers and clients and will not sell or otherwise provide, directly
or
indirectly, any of the Services or any portion thereof to any Third
Party.
15.5. Solicitation.
Neither
party shall solicit the employees of the other party for employment during
the
Term of this Agreement, for any reason. The foregoing shall not preclude
either
party from employing any such employee (i) who seeks employment with the
other
party in response to any general advertisement or solicitation that is not
specifically directed towards employees of such party or (ii) who contacts
the
other party on his or her own initiative without any direct or indirect
solicitation by such party.
15.6. Performance
by Subcontractors.
Customer
understands and agrees that the actual performance of the Services may be
made
by Metavante, one or more Affiliates of Metavante, or subcontractors of any
of
the foregoing Entities (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 the Services by any Eligible Provider,
to the same extent as if Metavante itself performed or failed to perform
such
services.
Customer
agrees to look solely to Metavante, and not to any Eligible Provider, for
satisfaction of any claims Customer may have arising out of this Agreement
or
the performance or nonperformance of Services. However, in the event that
Customer contracts directly with a Third Party for any products or services,
Metavante shall have no liability to Customer for such Third Party’s products or
services, even if such products or services are necessary for Customer to
access
or receive the Services hereunder.
15.7. Proper
Instructions.
"Proper
Instructions" shall mean those 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.
| 16. |
MISCELLANEOUS
PROVISIONS
|
16.1. 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 Wisconsin, excluding its principles of conflict of laws.
16.2. 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.
16.3. 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.
16.4. 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.
16.5. 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.
16.6. 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 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.
16.7. 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.
|
In
the case of Customer:
|
Xxxxxx
Beaumont, Inc.
0000
00xx
Xxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attn:
Xxxx Xxxxxx
|
|
For
Billing Purposes:
|
Same
as above
|
|
In
the case of Metavante:
Copy
to:
|
Metavante
Corporation
0000
Xxxx Xxxxx Xxxx Xxxx
Xxxxxxxxx
XX 00000
Attn: Xxxxx
X. X’Xxxxxx, President & COO
Payment
Solutions Group
Risk
Management and Legal Division
|
16.8. 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.
16.9. 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. Articles 7, 10, 13 and 16
shall
survive the expiration or earlier termination of this Agreement for any
reason.
16.10. Attorneys’
Fees and Costs.
If any
legal action is commenced in 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.
16.11. 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.
16.12. 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.
16.13. Negotiated
Agreement.
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.
16.14. 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, contract or tort, including negligence.
| 17. |
DEFINITIONS
|
A. “Affiliate”
shall mean, with respect to a party, any Entity at any time Controlling,
Controlled by or under common Control with, such party.
B. “Agreement”
shall mean this agreement and all schedules and exhibits attached hereto,
which
are expressly incorporated, any future amendments thereto, and any future
schedules and exhibits added hereto by mutual agreement.
C. "Business
Days" shall be Mondays through Fridays except holidays recognized by the
Federal
Reserve Board of Chicago.
D. “Change
in Control” shall mean any event or series of events by which (i) any person or
entity or group of persons or entities shall acquire Control of another person
or entity or (ii) in the case of a corporation, during any period of 12
consecutive months commencing before or after the date hereof, individuals
who
at the beginning of such 12-month period were directors of such corporation
shall cease for any reason to constitute a majority of the board of directors
of
such corporation.
E. “Commencement
Date” shall mean the date on which Metavante first provides the Initial Services
to Customer.
F. “Confidential
Information” shall have the meaning set forth in Section 14.3
above.
G. “Contract
Year” shall mean successive periods of twelve months, the first of which (being
slightly longer than twelve (12) months) shall commence on the Commencement
Date
and terminate on the last day of the month in which the first anniversary
of the
Commencement Date occurs.
H. “Control”
shall mean the direct or indirect ownership of over 50% of the capital stock
(or
other ownership interest, if not a corporation) of any Entity or the possession,
directly or indirectly, of the power to direct the management and policies
of
such Entity by ownership of voting securities, by contract or otherwise.
“Controlling” shall mean having Control of any Entity and “Controlled” shall
mean being the subject of Control by another Entity.
I. "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, necessary
for Metavante to provide the Services.
J. “Damages”
shall mean actual and verifiable monetary obligations incurred, or costs
paid
(except overhead costs, attorneys’ fees, and court costs) which (a) would not
have been incurred or paid but for a party’s action or failure to act in breach
of this Agreement, and (b) are directly and solely attributable to such breach,
but excluding any and all consequential, incidental, punitive and exemplary
damages.
K. “Discover
Network” shall mean Discover Financial Services
L. "Documentation"
shall mean Metavante's standard user instructions relating to the Services,
including tutorials, on-screen help, and operating procedures, as provided
to
Customer in written or electronic form.
M. "EFD
Services" shall mean the Services described in the attached Services and
Charges
Schedule.
N. “Effective
Date” shall mean the date so defined on the signature page of this Agreement,
or, if blank, the date executed by Metavante, as reflected in Metavante’s
records.
O. “Effective
Date of Termination” shall mean the last day on which Metavante provides the
Services to Customer (excluding any services relating to termination
assistance).
P. "EFT
Services" shall mean the electronic funds transfer services set forth in
the
attached Services and Charges Schedule.
Q. “Eligible
Provider” shall have the meaning as set forth in Section 16.10
above.
R. "Employment
Cost Index" shall mean the Employment Cost Index (not seasonally adjusted)
as
promulgated by the United States Department of Labor's Bureau of Labor
Statistics (or any successor index).
S. “Entity”
means an individual or a corporation, partnership, sole proprietorship, limited
liability company, joint venture or other form of organization, and includes
the
parties hereto.
T. “Estimated
Remaining Value” shall mean the number of calendar months remaining between the
Effective Date of Termination and the last day of the contracted-for Term,
multiplied by the average of the three (3) highest monthly fees (but in any
event no less than the Monthly Base Fee or other monthly minimums specified
in
the Services and Charges Schedule(s)) payable by Customer during the twelve
(12)
month period prior to the event giving rise to termination rights under this
Agreement. In the event the Effective Date of Termination occurs prior to
expiration of the First Contract Year, the monthly fees used in calculating
the
Estimated Remaining Value shall be the greater of (i) the estimated monthly
fees
set forth in the Services and Charges Schedule(s) and (ii) the average monthly
fees described in the preceding sentence.
U. “Expenses”
shall mean any and all reasonable and direct expenses paid by Metavante to
Third
Parties in connection with the Services provided to or on behalf of Customer
under this Agreement, including any postage, supplies, materials, travel
and
lodging and telecommunication fees, but not payments to Eligible
Providers.
V. "Implementation"
shall mean the transfer of Customer's electronic funds transfer and/or card
processing services to the Metavante system and integration thereof such
that
Customer is able to receive the EFD Services in a live operating environment.
W. "Implementation
Date" shall mean the date on which Implementation for Customer or a particular
Affiliate has been completed.
X. "Implementation
Period" shall mean that portion of the Term beginning on the Effective Date
and
ending on the Implementation Date.
Y. "Initial
Services" shall mean all Services requested by Customer from Metavante under
this Agreement prior to the Commencement Date. The Initial Services requested
as
of the Effective Date are set forth in the schedules attached hereto, which
shall be modified to include any additional services requested by Customer
prior
to the Commencement Date.
Z. “Initial
Term” shall mean the period set forth on the first page of this
Agreement.
AA. "Legal
Requirements" shall mean the federal and state laws, rules and regulations
pertaining to Customer's business.
BB. "MasterCard"
shall mean MasterCard International, Inc.
CC. “Metavante
Proprietary Materials and Information” shall mean the Metavante Software and all
source code, object code, documentation (whether electronic, printed, written
or
otherwise), working papers, non-customer data, programs, diagrams, models,
drawings, flow charts and research (whether in tangible or intangible form
or in
written or machine readable form), and all techniques, processes, inventions,
knowledge, know-how, trade secrets (whether in tangible or intangible form
or in
written or machine readable form), developed by Metavante prior to or during
the
Term of this Agreement, and such other information relating to Metavante
or the
Metavante Software that Metavante identifies to Customer as proprietary or
confidential at the time of disclosure.
DD. “Metavante
Software” shall mean the software owned by Metavante and used to provide the
Services.
EE. "Network"
shall mean a shared system operating under a common name through which member
financial institutions are able to authorize, route, process and settle
Transactions (e.g., MasterCard, Visa and Discover Network).
FF. “New
Services” shall mean any services not included in the Initial Services. Upon
mutual agreement of the parties, New Services shall be included in the term
“Services.”
GG. “Plan”
shall have the meaning set forth in Section 15.1 above.
HH. “POS"
means point of sale.
II. “Privacy
Regulations” shall mean the regulations promulgated under Section 504 of the
Xxxxx-Xxxxx-Xxxxxx Act, Pub. L. 106-102, as such regulations may be amended
from time to time.
JJ. "Professional
Services" shall mean services provided by Metavante for Implementation,
training, consulting or to review or implement New Services or enhancements
to
existing Services.
KK. “Proper
Instructions” shall mean those instructions sent to Metavante in accordance with
Section 16.11 above.
LL. “Services”
shall mean the services, functions and responsibilities described in this
Agreement to be performed by Metavante during the Term and shall include
New
Services which are agreed to by the parties in writing.
MM. “Stored
Value Card” means a debit card for which Metavante provides Services
hereunder.
NN. “Taxes”
shall mean any manufacturers, sales, use, gross receipts, excise, personal
property or similar tax or duty assessed by any governmental or
quasi-governmental authority upon or as a result of the execution or performance
of any service pursuant to this Agreement or materials furnished with respect
to
this Agreement, except any income, franchise, privilege or like tax on or
measured by Metavante’s net income, capital stock or net worth.
OO. “Term”
shall mean the Initial Term and any extension thereof, unless this Agreement
is
earlier terminated in accordance with its provisions.
PP. “Termination
Fee” shall have the meaning set forth on the Termination Fee Schedule of the
Agreement.
QQ. “Third
Party” shall mean any Entity other than the parties or any Affiliates of the
parties.
RR. "TSYS"
shall mean Total Systems Services, Inc., a Third Party provider of some of
the
Services hereunder.
SS. "Visa"
shall mean VISA U.S.A., Inc.
