AGREEMENT NUMBER 010199
MICR FORMS AGREEMENT
BETWEEN
TRAVELERS EXPRESS COMPANY, INC.
AND
NORTHSTAR COMPUTER FORMS, INC.
This Agreement is entered into as of the 1ST day of JANUARY 1999, by and
between Travelers Express Company, Inc. (Buyer or TECI) and Northstar Computer
Forms, Inc. (Seller OR NORTHSTAR).
The parties agree to the following terms for the purchase by Buyer of items
listed in attached EXHIBIT A from Seller:
I. SCOPE
In consideration of Buyer's first purchase order under this Agreement,
Seller agrees to sell to Buyer, and hereby extends to Buyer, a Purchase
Agreement to purchase MICR forms as listed in EXHIBIT A at the stated
prices; and (ii) to accept purchase orders as may be released by Buyer
which comply with this Agreement. MICR forms are: money orders, gift
certificates, official checks, process control documents, LASER CUT SHEETS,
AND OTHER CUSTOM MICR DOCUMENTS. It is further understood and agreed that
Seller will accept such complying purchase orders from Buyer at the
specified prices for the period commencing with the date first above
written and ending DECEMBER 31, 2002, (Agreement period) provided, however,
that orders placed within this period may call for delivery through APRIL
30, 2003 (DELIVERY PERIOD).
II. PRICING
2.1 All prices stated in EXHIBIT A are F.O.B. manufacturing plant.
Title of the documents passes to Buyer upon the earlier event of
shipment or passage to Seller's warehouse for inventory purposes.
2.2 In addition to the invoice terms and conditions, Seller agrees that:
(1) No material will be invoiced against this Agreement number as it
is intended for use by Buyer as a control number only; (2) all
charges with respect to purchase orders issued hereunder shall be
invoiced weekly in summary billing format; and (3) payment terms
shall be 2% ten days, net thirty (30) days (2/10N30) after receipt
of invoice. Any amount owed under this Agreement by one party to
the other which is not paid on or before the 15th day after the due
date of the invoice will require the invoicing party to provide
copies of the original invoice to the owing party for payment. All
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amounts due after 90 days of the original due date, unless and
except there is a bona fide dispute or a mutually agreed extension,
shall bear interest until paid at the rate of 18% per annum (1.5%
per month), but in no event exceed the maximum lawful rate of
interest permitted by applicable law.
2.3 All unbilled balances on existing orders which are not subject to
other purchase agreements as of the date first written above shall
receive the benefit of the pricing as set forth in EXHIBIT A.
2.4. If at any time during the Agreement period Seller shall:
(i) Offer for sale any of the items to be purchased hereunder at
a lower price for similar or lesser quantities; or
(ii) if seller shall offer for sale at a lower price for similar
or lesser quantities items designed to basically the same
specifications, but with a price differential which is
greater than that which would reasonably be warranted by the
difference in cost of manufacture (based upon the difference
in specifications);
then, commencing with the effective date of the price referenced in
(i) or (ii) above, this Agreement and its stated prices shall be
considered amended to reflect such lower prices for similar or
lesser quantities (or the excess over said warranted price
differential). The amended price shall not apply to units required
by Buyer's purchase orders to be delivered prior to its effective
date. Seller shall promptly notify buyer of any such price
reduction which would serve to reduce the price payable by Buyer
under this Agreement. Section 2.4 will be specifically covered
twice each year (Section 7.4) during the term of this Agreement.
2.5 Pricing will remain firm in the absence of materials cost
fluctuations. If material costs increase, Seller may increase prices
by the amount of the materials cost increase, but no more than six
percent (6%) of the cost per year per 1000 documents before the
increase. If material costs decrease, the reduction will be passed
through to Buyer upon Seller receiving said price reduction. Prices
will be reviewed at the business review meetings provided for in
SECTION 7.4. Buyer requires suitable justification (ie. Mill
invoices, PPI indexes, etc.) and 30 day prior written notice of
change in bid price.
2.6 In exchange for Buyer's promise to purchase ninety percent (90%) of
its MICR forms requirements of the types listed in EXHIBIT A from
Seller, Seller agrees to pay cash rebates (see EXHIBIT E) to Buyer
based on
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billing levels for all forms (money orders and other forms) as
provided in EXHIBIT A. Estimated annual Money Order volumes for
1999 are 284,000,000 items. Estimated annual Official Check volumes
for 1999 are 36, 000,000 items. Rebates will be effective on
purchases beginning January 1, 1999.
2.7 Seller shall provide ongoing consultation to Buyer regarding how to
reduce costs. This consultation shall include, but is not limited
to, product mix, and composition, applicable "best practices" used
with other customers, continuous process and production efficiency
improvements, etc. This consultation is intended to help Buyer
reduce Official Check per unit costs to less than $.08 per item, and
shall be formally documented at each semi-annual review (section
7.4).
III. QUANTITIES
3.1 Buyer agrees to purchase ninety percent (90%) of its MICR forms
annual dollar requirements from Seller pursuant to this Agreement.
Nothing in this Agreement shall preclude Buyer from procuring like
or comparable items from other sources.
IV. LEAD TIMES
4.1 ALL PROOFS: Buyer will receive a first proof ON NEW ORDERS within
48 hours of the time the completed purchase order is received by
Seller. Buyer will receive any subsequent proof within 24 hours
after receipt by Seller. All appropriate logo's, artwork, drawing,
disks, and specifications will be provided with orders. Proof under
SECTION 4.1 refers to standard base items (e.g. common formats and
sizes). Complex design, process colors, backgrounds, and intricate
logos may take an additional 24 hours.
4.2 MONEY ORDER FORMS: All custom logo standard size manual money order
forms of exact repeat or returned proof approval received by the 1st
of each month will be printed on the 15th of each month or received
by the 15th of each month will be printed on the 30th of each month.
All generic standard size manual money order forms will be scheduled
with a minimum of twenty to thirty days prior to agreed upon
inventory replenishment dates.
All generic or custom logo automated money order forms will be
scheduled with a minimum of twenty to thirty days prior to agreed
upon inventory replenishment dates.
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Delivery requirements less than stated above must have pre-authorized
approval and will be subject to print upcharges. Buyer reserves the
right to prioritize the sequence of the Buyer's orders for print
production.
4.3 OFFICIAL CHECKS: Seller is required to transmit proofs
electronically. All orders printed four color or less on standard
white official check stock with quantities up to 20,000 to ship with
10 working days after proof approval or electronic entry of exact
repeats. Buyer reserves the right to prioritize the sequence of
Buyer's orders.
All orders printed for four color or less on standard white official
check stock with quantities over 20,000 but less than 50,000 will
ship within 15 working days after proof approval or electronic entry
of exact repeats. Buyer reserves the right to prioritize the
sequence of Buyer's orders for print production.
All orders printed for four colors or less on standard white
official check stock with quantities over 50,000 and/or extra wide
forms in OC-7 classification may require additional lead times not
exceed longer than 20 working days.
All orders printed process color, more than four color, or non
standard papers may require additional lead times, not to exceed
longer than 20 working days.
Delivery requirements of less than 10 working days must have
pre-authorization approval and will be subject to print upcharges.
Both new and repeat orders will be transmitted to Seller via an
electronic order entry system supplied by Buyer's automated systems.
V. QUALIFICATION TESTING
5.1. Without in any way limiting its warranty or incoming inspection
testing rights under this Agreement, Buyer, from time to time,
intends to subject samples of the purchased items to qualification
tests. The tests will be sufficient to assure that the items meet
all the specification requirements described in EXHIBIT C if any, as
well as applicable drawings, samples and other descriptions. Buyer
shall notify Seller of any deficiencies indicated by the testing.
Seller shall at its own expense replace, alter, or modify the
remaining to-be-delivered items so that they will pass subsequent
qualification tests, unless Buyer elects, in writing, to waive a
deficiency.
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5.2. Should Seller fail to satisfactorily correct, at its own expense,
any and all deficiencies discovered in Buyer's qualification testing
within a reasonable time period after receiving Buyer's notice, then
Buyer, at its sole option, shall have the right (i) to cancel all or
any portion of the outstanding item orders without charge, and
receive full credit at Seller's risk and expense all items which
Seller previously delivered to Buyer.
5.4. Seller agrees that with respect to present or future items subject
to this Agreement, it will make available to Buyer at no charge,
results of Seller's internal qualification tests, whether or not
dealing with testing against Buyer's specifications.
VI. SPECIFICATIONS AND PRODUCTION PROCESS CHANGES
6.1 Seller agrees that all items to be delivered under this Agreement
shall meet the specifications described in EXHIBIT C, if any, as
well as applicable drawings, Buyer approved samples, and other
documented descriptions. Seller further agrees that in addition to
and not limiting the foregoing requirement, it will not make any
change in a item to be delivered hereunder which would effect the
item's form, fit, function, appearance or performance without first
having received Buyer's prior written consent.
VII. REPORTING
7.1 MONEY ORDERS: Seller will supply Buyer with monthly statements
itemizing quantities ordered by Buyer during the term of this
Agreement. This report shall be in an Buyer defined PC format and
shall include, but not be limited to, (1) monthly volume by Money
Orders type, (2) monthly invoice by Money Orders type and for
non-standard Money Orders as a whole, (3) average turn around time,
and (4) total dollars committed to date.
7.2 OFFICIAL CHECKS: Seller will provide accurate and timely reporting.
Reports of the official check program are required to be in Buyer
defined PC format. Required reports include, but are not limited
to, the following:
- Monthly summary analysis
- Order analysis report
- Official check breakdown report
- Prices vs. quantity report
- Status reports on all orders to date and pricing
- Daily report of rush orders and their status
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- Historical reports by type, quantity and date produced
- Service level reports as requested by Buyer
7.3 OTHER PRODUCTS: Such reports as Buyer may request (e.g. Gift
Certificates)
7.4 Seller and Buyer will mutually agree to set a schedule for business
reviews in which at least two meetings will be scheduled at the
beginning of January and July of each contract year.
VIII. ADDITIONAL ITEMS
8.1 During the term of this Agreement, Buyer may have a need for items
being commercially produced by Seller, which although not then
listed in EXHIBIT A are in the same general product line as items
listed in Exhibit "A". In such a circumstance, Buyer shall have a
right, upon ten (10) days prior written notice to Seller, to have
the unlisted items added to this Agreement. These added items can
then be purchased under this Agreement, at Seller's then prevailing
prices for these items, at the same quantity levels at which the
items listed in EXHIBIT A are priced; however, the pricing shall at
all times reflect Seller's extending its "most favored customer"
status to Buyer for comparable specifications.
IX. RESCHEDULING AND CANCELLATION
9.1. Buyer may at its own election and convenience, before Seller
delivers the applicable units under one or more of its purchase
orders, (i) cancel this Agreement in whole as provided in ARTICLE
XII, or (ii) cancel particular purchase orders, or any portion
thereof, provided that:
(a) Buyer shall give notice to Seller of such cancellation
indicating its scope and extent.
(b) Such notice is received by Seller at least thirty (30) days
in advance in the case of SECTION (i) above or five (5)
days depending on "agreed to" lead time in SECTION (ii)
before the scheduled delivery date.
(c) Buyer is responsible for all costs incurred as it relates to
Buyer's orders in production including all material as it
relates to Buyer's orders in production.
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X. OTHER TERMS AND CONDITIONS
10.1 It is understood and agreed that the terms and conditions contained
in this Agreement in addition to the Standard Purchase Order Terms
and Conditions contained on the reverse side of Buyer's purchase
orders, a copy of which is hereto attached as EXHIBIT D, shall be
the sole terms and conditions governing this Agreement and each and
every order issued under it. Any conflicts which might exist
between this Agreement and said Standard Purchase Order Terms and
Conditions which are not specifically resolved in this Agreement
shall be resolved in favor of this Agreement.
10.2 If Seller, upon receipt per ARTICLE IV of this Agreement and Buyer's
purchase order, including but limited to the stated in-house
delivery date, cannot subsequently meet the mutually agreed to ship
date, will ship via overnight air freight F.O.B. origin, freight
prepaid. If delay is caused by Seller after missing the mutually
agreed ship date, enough product will be shipped next-day air to
prevent stock-outs and paid by Seller. The remainder of the order
will be shipped under normal terms.
10.3 Seller, upon receipt of Buyer's purchase order, will acknowledge
such purchase order as to correct quantity, in-house date, and
price, and return a copy to Buyer with the proper authorization.
10.4 Seller is to provide a cost reduction program/schedule each year by
JULY 15.
10.5 Money Orders: Seller and Buyer are to mutually agree on a test
procedure and in the event that Seller ships defective product and
such product is verified as defective at Buyer's test inspection,
Buyer will be entitled to a $.05/item credit from Seller for each
item found defective, as well as $250 per order charge. The credit
will only apply to defective items over 1000 (minimum) items and
limited to 30,000 (maximum) items per order. Defective product as
described above is defined as product which has failed criteria
found in ARTICLE V and in EXHIBIT C as described in the mutually
agreed test procedure.
Official Checks: Seller and Buyer are to mutually agree on a test
procedure and in the event that Seller ships defective product and
such product is verified as defective at Buyer's test inspection,
Buyer will be entitled to a $.05/item credit from Seller for each
item found defective, as well as $50 per order charge. The credit
will only apply to defective items
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over 3000 (minimum) items and limited to 20,000 (maximum) items per
order. In the event the Seller ships defective product, and in doing
so causes a TECI customer a break in service, Seller will have 3 days
from the date Seller receives notification to replace the defective
product. For any order delayed longer than the 3 day time period,
the Seller will credit the Buyer $250.00 per day for each day the
customer is delayed. Defective products described above is defined
as product which has failed criteria found in Section V and in
Exhibit "C" as described in the mutually agreed test procedure.
10.6 Seller agrees to employ a full time MICR Quality Assurance person
for each program (money orders and official checks). These people
will have had training in Statistical Process Control (SPC), Total
Quality Management (TQM) and forty hours or more in Total Quality
Improvement (TQI). These people will report directly to the Seller's
VP of Operations OR OPERATIONS MANAGER.
10.7 Seller will provide Buyer with an informed contact person for each
program (money orders and other MICR forms) at each plant and
warehouse who will be available via pager throughout the full
business day (7:00 AM to 5:00 PM). Seller will provide a list of
contact persons, locations and telephone numbers as EXHIBIT F to
this Agreement and will keep the list current.
10.8 NON-STANDARD MICR FORMS: Non-standard MICR forms will be priced
separately and subject to the same MICR forms specifications as
standard MICR forms, unless otherwise stated on the purchase order.
10.9 OUTSOURCED MICR FORMS: MICR forms that Seller elects to outsource
to another Seller will conform to the same specifications and price
constraints as in-house non-standard MICR forms. Pricing on
outsourced MICR forms will be quoted within 48 hours of receipt of
the purchase order, which at that time Buyer can proceed or cancel
said order. Notwithstanding any outsourcing, Seller remains
responsible to Buyer for the performance of this Agreement.
10.10 PURCHASE OF PAPER: Buyer reserves the right to purchase its own
paper to produce the MICR forms upon sixty (60) days written notice
to the Seller. Paper specifications and quality must meet Seller's
requirements based on Seller's past practices.
10.11 FREIGHT COSTS:
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Seller will deliver the Money Order forms directly to Buyer's
designated warehouse using the most economical transportation given
the delivery requirements. All discounts, or rebates, received by
Seller will be passed on to the Buyer. Buyer reserves the right to
select shipper for its products if discounts and/or rebates are more
advantageous to Buyer.
Seller will deliver the Official Check forms directly to the Buyer's
designated warehouse using the most economical transportation given
the delivery requirements. Seller and Buyer agree that the 1st year
of the Agreement Buyer shall receive a discount of 16% of freight
costs. After the first year, Buyer will receive a guaranteed
minimum rate of 16% discount. In the event the Seller's discounts
are less than 16%, Buyer will receive 100% of the freight discount.
Buyer reserves the right to select shipper for its products if
discounts are more advantageous to Buyer.
Rebate (discount) on freight does not include money orders/pick pack
products for which Norhtstar does not receive a discount.
Discounts will be discussed and adjusted at the annual reviews of
the program.
10.12 GOVERNING LAW: This Agreement is governed by and construed in
accordance with Minnesota law and it is the entire Agreement between
the parties. This Agreement may be amended or assigned only by the
written Agreement of both parties.
10.13 OWNERSHIP: All proofs, prints, negatives, separations,
enhancements, disks, electronic files, digital information, etc.,
that are provided by Buyer or developed or created by Seller in
connection with this Agreement, both the physical medium and the
intellectual property rights, are the exclusive property of Buyer
and must be returned to Buyer upon request or within ten (10) days
of the termination of this contract in a form used by Seller or
available to Seller without additional expense. Note that Seller
files digital information on an Amgraf Mecca System.
10.14 PRODUCT SPECIFICATIONS: Seller agrees to manufacture all products
in specification with ANSI standards in regards to size, MICR and
paper. EXHIBIT "C" lists automated MICR forms specifications. All
MICR forms should be created to these specifications unless the
Purchase Order specifically states otherwise. Exceptions will be
signed by both parties at authorized levels
10.15 CONFORMANCE REQUIREMENTS: Conformance requirements for MICR forms
is addressed in EXHIBIT C.
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10.16 SECURITY REQUIREMENTS: Seller agrees to install and maintain
security requirements found in EXHIBIT B for the duration of this
Agreement and any extensions. Buyer shall also have the right to
inspect the records, wherever maintained, upon reasonable notice,
during regular business hours.
XI. AMENDMENTS
11.1 This Agreement shall not be deemed or construed to have been
modified, amended, rescinded, canceled or waived in whole or in
part, except by written instruments signed by the parties hereto;
further, it is expressly agreed that matters affecting this
Agreement in general must be signed by both parties.
XII. RIGHT OF TERMINATION
12.1 If either Buyer or Seller fails to perform any of its covenants or
obligations under this Agreement (other than as expressly set forth
in SECTION 12.3), and such failure is, or in the aggregate such
failures are, material, then the party not in default under this
agreement may provide written notice of its intent to terminate this
Agreement and if such default is not cured within ten (10) business
days from the date of written notice to the defaulting party or, if
such default cannot reasonably be cured within such ten (10)
business day period, if cure is not commenced within such period and
thereafter diligently pursued, then the nondefaulting party may
terminate this Agreement immediately.
12.2. If the party not in default under this Agreement elects to terminate
this Agreement pursuant to SECTION 12.1., then, in addition to such
termination and subject to the terms of this Agreement, the party
not in default shall be entitled to any and all other remedies
provided by law or equity for the other party's failure to fulfill
its obligations under this Agreement.
12.3. If either Buyer or Seller becomes or is declared insolvent or
bankrupt, then this Agreement shall be immediately terminated,
without the requirement of any notice to the insolvent or bankrupt
party. A party shall be deemed insolvent or bankrupt for purposes
of this section in the event that:
(a) A receiver, liquidator or trustee of a party is appointed by
court order and such order remains in effect for more than
thirty (30) days; or a case is commenced or a petition is
filed against a party
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under any applicable liquidation, conservatorship,
bankruptcy, moratorium insolvency, reorganization or similar
laws for the relief of debtors from time to time in effect
and generally affecting the rights of creditors (a "Debtor
Relief Law"); or
(b) A party voluntarily seeks, consents to, or acquiesces in the
benefit or benefits of any provision of any Debtor Relief
Law; consents to the filing of any assignment for the
benefit of its creditors; admits in writing its inability to
pay its debts generally as they become due; or consents to
the appointment of a receiver, trustee, liquidator or
conservator for it or any part of its property.
12.4. If Seller fails to deliver to Buyer the CFO report as required by
SECTION 21.1, or if the report is not reasonably satisfactory to
Buyer because of declining financial condition, the Buyer shall have
the right to terminate this Agreement upon sixty (60) days prior
written notice to Seller.
12.5 CHANGE OF OWNERSHIP OR CONTROL: Seller agrees that a change in its
ownership or control during the term of this Agreement shall have no
effect on the Agreement with the exception that Buyer may terminate
the Agreement upon written notice to Seller. For purposes of this
Agreement, a change in ownership or control occurs when thirty
percent (30%) or more of Seller's shares or assets are transferred.
Seller will provide Buyer necessary information at the earliest
opportunity. Change of ownership does not include Seller's buyback
of its own stock.
12.6 Termination Transition: Buyer agrees to transition volume in six
month intervals at the conclusion of this agreement so as to effect
a smooth transition for both parties. Money Orders will form one
product group, official checks will form a second product group and
all other items will form the remaining product group.
12.7 Dispute Resolution Procedure:
a. Notice and Cure. Except as otherwise specified in this
Agreement, in the event of a breach of the Agreement the
nonbreaching party shall give the breaching party written notice
of the breach and thirty (30) days to cure it.
b. Negotiation. The parties agree to use their best efforts to
negotiate a resolution of the problem within the thirty (30) day
cure period.
c. Executive Representatives. If the parties are unable to resolve
the problem as provided above, they will each promptly designate
in writing one executive representative from each Party. The
executive
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representatives will use their best efforts to negotiate a
resolution of the problem within thirty (30) days.
d. Mediation. If the parties are unable to resolve the dispute as
provided above, they will submit the dispute to nonbinding
mediation with a neutral mediator in Minneapolis, Minnesota.
Each Party will pay its own expenses, and the parties will share
equally the fees and expenses of the mediator.
e. Arbitration. If mediation fails to resolve the dispute within
ninety (90) days from the date of submission, the parties shall
submit the dispute to binding arbitration in Minneapolis,
Minnesota.
f. Termination and Other Remedies. Nothing in this dispute
resolution procedure prevents a Party from terminating this
Agreement according to its provisions or instituting formal
proceedings at any time to avoid the expiration of any applicable
limitations period, or to preserve those rights regarding
confidentiality, or where a Party in good faith otherwise
determines that a breach of this Agreement by the other Party may
cause irreparable harm and relief in the form of a restraining
order, injunctive order or other equitable remedy is the only
adequate remedy.
XIII. INSURANCE COVERAGE
13.1. MINIMUM INSURANCE COVERAGE. Throughout the Term, Seller will
maintain insurance COVERAGE reasonably satisfactory to Buyer.
(a) Comprehensive General Liability, legal liability coverage,
covering the liability assumed under this Agreement, subject
to a minimum combined single limit of $2,000,000.00 for
bodily injury and property damage per any one occurrence.
The foregoing can be fulfilled by an umbrella insurance
policy.
(b) Comprehensive Automobile Liability Insurance, including
liability covering vehicles hired by the insured, and
vehicles owned by the insured's employees and agents and
used in the insured's business, as well as those owned by
the insured (sometimes known as owned, combined single limit
of $2,000,000.00 for bodily injury and property damage per
any one occurrence. The foregoing can be fulfilled by an
umbrella insurance policy.
(c) Workmen's Compensation Insurance to the full extent required
by applicable state law.
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(d) Crime and Premises Insurance, including, but not limited to,
coverage for employee dishonesty and agent dishonesty
covering for negotiable securities of others with a minimum
limit of $1,000,000.00
13.2. ADDITIONAL INSURED. Seller further agrees to name Buyer as an
additional insured, with respect to this Agreement as it relates to
Buyer's employees, agents, directors and affiliates on the
Comprehensive General Liability and Comprehensive Automobile
Liability policies referred to in the above SECTION 13.1. Seller
will provide Buyer with a copy of coverage's with Buyer named as an
additional insured on the comprehensive General Liability and
Comprehensive Automobile Liability policies within ten (10) days of
the date this Agreement is fully executed by the parties hereto.
13.3. CERTIFICATES OF INSURANCE. Before commencing Services hereunder,
Seller shall deliver to Buyer certificates of insurance evidencing
the foregoing coverage's issued by the acceptable insurance
carrier(s), providing that not less than thirty (30) days written
notice shall be given to Buyer prior to any change in the terms and
conditions of any such insurance coverage or the cancellation,
termination or expiration of any such insurance coverage.
XIV. INDEMNIFICATION BY THIRD PARTY CLAIMS AND LIMITATION OF LIABILITY.
14.1 Seller agrees to indemnify and hold harmless Buyer, its directors,
officers, agents and employees from and against all losses, damages,
claims, liabilities and causes of action of every kind, including
claims for the payment of negotiable instruments (as well as costs
and expenses incident thereto, including attorneys' fees) caused by
the fault or negligence of Seller or its employees arising out of
this Agreement or related to the inventory entrusted to Seller,
except any losses to the extent caused by the fault or negligence of
Buyer or its employees. Seller shall give the Buyer prompt and
reasonable notice of any such claims or actions, and Buyer shall
have the right to investigate, compromise and defend the same to the
extent of its own interests.
14.2 Buyer agrees to indemnify and hold harmless Seller, its directors,
officers, agents and employees from and against all losses, damages,
claims, liabilities and causes of action of every kind, including
claims for the payment of negotiable instruments (as well as costs
and expenses incident thereto, including attorneys' fees) caused by
the fault or negligence of Buyer or its employees arising out of
this Agreement,
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except any losses to the extent caused by the fault or negligence
of Seller or its employees. Buyer shall give Seller prompt and
reasonable notice of any such claims or actions, and Seller shall
have the right to investigate, compromise and defend the same to
the extent of its own interests.
14.3. REMEDIES CUMULATIVE; DAMAGES. All remedies are cumulative. Failure
to exercise a right or remedy is not a waiver. Except when due to a
claim or action pursuant to SECTION 14.1. (c), neither party is
liable to the other party for any indirect, special, incidental,
consequential or punitive damages.
14.4. SURVIVAL. This ARTICLE XIV shall survive the expiration or
termination of this Agreement.
XV. RELATIONSHIP OF PARTIES.
15.1 In connection with this Agreement, each party is an independent
contractor, and neither party has any authority to bind or commit
the other. Nothing herein shall be deemed or construed to create a
joint venture, partnership or agency relationship between the
parties for any purpose.
XVI. SEVERABILITY
16.1 If any term or provision of this Agreement shall be found by a court
of competent jurisdiction to be invalid, illegal or otherwise
unenforceable, the same shall not affect the other terms or
provisions hereof or the whole of this Agreement, but such term or
provision shall be deemed modified to the extent necessary in the
court's opinion to render such term or provision enforceable, and
the rights and obligations of the parties shall be construed and
enforced accordingly, preserving to the fullest permissible extent
the intent and agreements of the parties herein set forth.
IX. NOTICE
17.1 Any notice provided for in, or permitted under, this Agreement shall
be made in writing and may be given or served by (a) delivering the
same in person or by prepaid messenger service to the party to be
notified, (b) depositing the same in the mail, postage prepaid,
registered or certified with return receipt requested, and addressed
to the party to be notified at the address herein specified, or (c)
telex, telegraph, facsimile, or other written telecommunication
medium. If notice is deposited in the United
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States mail pursuant to clause (b) of this SECTION 17.1, it will be
effective from and after three (3) days following the date that it is
so deposited. Notice given in any other manner shall be effective
only in and when received at the address of the party to be notified.
For the purpose of notice, the addresses and facsimile numbers are as
follows:
If to Seller:
Northstar Computer Forms, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxx 00000
ATTN: PRESIDENT
Facsimile: 612/535-5671
If to Buyer:
Travelers Express Company, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xx. Xxxxx Xxxx, Xxxxxxxxx 00000
Attn: Director of Corporate Services
Facsimile: 612/591-3121
With a copy to (except for communications required for the daily performance of
Services):
Travelers Express Company, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xx. Xxxxx Xxxx, Xxxxxxxxx 00000
Attn: Legal Department
Facsimile: 612/591-3859
XVIII. FORCE MAJEURE.
18.1 Neither party shall be liable for any delays or failures in
performance due to fire or to labor or material shortages, or to
strikes, walkouts, public enemy, Acts of God or to causes beyond the
party's control that are not due to its negligence, gross negligence
or willful misconduct. The party whose performance is to be excused
as provided in the previous
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sentence must advise the other party of such delay or failure in
performance as soon as such party has, or should have, knowledge
that an event has occurred which will cause same. Within five
days, the party must confirm the advice by written notice and
furnish as much detail as is reasonable available. If any
interruption of performance continues longer than thirty days, the
other party may terminate this Agreement by written notice to the
party whose performance is interrupted unless a course of
corrective action is approved by both parties.
XIX. ENVIRONMENTAL LIABILITY.
19.1 Seller and Buyer acknowledge to each other that each recognizes that
certain federal, state and local laws and regulations impose
liability upon multiple parties considered responsible for any
hazardous, toxic, radioactive, pollutant, or irritant condition
("Condition") under the doctrine of joint and several liability, or
strict liability. Buyer and Seller each acknowledge and agree that
it is not the purpose of this Agreement that either shall be
exposed to any liability arising out of any Condition at the other's
facilities, or the activities of the other. Accordingly, each party
hereto (an "Indemnifying Party") does waive any and all claims, and
agrees to indemnify, defend, and save harmless the other party, its
agents, employees, and subcontractors (individually and
collectively, an "Indemnified Party"), for, from and against any
suits, judgments or expenses, and reasonable attorneys fees, by
reason of any injury to persons, death, damage to property, or
violation of any law, or regulation arising in connection with any
Condition at the Indemnifying Party's facilities, or any Condition
arising in connection with the Indemnifying Party's activities in
the manufacturing, warehousing and deployment of the instruments and
other Buyer property. The obligation set forth herein shall continue
in full force and effect, whether or not this Agreement is
terminated for any reason whatsoever.
XX. RIGHT TO INSPECT AND MAINTENANCE OF BOOKS AND RECORDS.
20.1 Buyer, after giving reasonable notice to Seller, shall have the
right at reasonable intervals to have its employees, agents or
representatives inspect the Facilities during regular business hours
for the sole purpose of confirming adherence to the terms and
conditions of this Agreement. Such right of inspection shall not
interfere with the normal conduct of Seller's business or the
operations of its facilities.
20.2 All supplies and services provided hereunder by Seller shall be
subject to final inspection and approval by Buyer. It is expressly
understood and agreed that the mere fact that Buyer made payment for
same does not
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constitute final acceptance or a waiver of any rights.
20.3 Throughout the Term, Seller shall maintain reasonably full and
accurate accounts, records, books, journals, ledgers, and data
(collectively, "Records") regarding the Services rendered hereunder,
all in accordance with generally accepted accounting principles.
Upon two (2) days advance notice, Buyer, its employees, agents or
representatives shall have the right at reasonable intervals during
normal business hours to inspect the Records, and such other records
as may be reasonably necessary, for the sole purpose of verifying
performance by Seller of the Services and to confirm the Service
Fees. Seller shall maintain all Records related to invoices,
Services and backup documentation associated therewith for a
period of at least three (3) years after the termination or
expiration of this Agreement. Seller shall also make the Records
available to Buyer, its employees, agents or representatives within
the Minneapolis, Minnesota, metropolitan area within ten (10) days
after receipt of a reasonable request for such Records from Buyer.
Further, Buyer shall have the right to inspect the Records at
reasonable intervals wherever maintained, upon reasonable notice,
during regular business hours.
XXI. FINANCIAL STATEMENTS AND REPORTS.
21.1 During the Term, upon Buyer's request, Seller will furnish or cause
to be furnished to Buyer, as soon as the same are available, and in
any event within one hundred twenty (120) days of the end of each
fiscal year a copy of Seller's Chief Financial Officer's Report of
Key Financial Information ("CFO Report"). The CFO Report is an
annual audited compilation of Seller's income statement, balance
sheet and statement of cash flows. Buyer shall sign the
confidentiality agreement which shall accompany the CFO Report,
provided that such agreement contains language materially consistent
with the Buyer's Mutual Confidentiality Agreement.
XXII. PUBLICITY.
22.1 Without the prior written approval of Buyer, Seller is prohibited
from any media releases, public announcements and public disclosures
relating to this Agreement or the subject matter of this Agreement,
including, without limitation, promotional or marketing materials,
but not including any announcement intended solely for internal
distribution or any disclosure required by legal, accounting or
regulatory requirements.
XXIII. THIRD PARTY BENEFICIARIES.
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23.1 Buyer and Seller agree that this Agreement is for their benefit and
is not intended to confer any rights or benefits on any third
parties, including without limitation, any employees of Buyer or
Seller.
XXIV. CAPTIONS.
24.1 Captions appearing in this Agreement are for convenience only and
shall not be deemed to explain, limit or amplify the provisions
hereof.
XXV. ASSIGNMENT OR DELEGATION OF DUTIES.
25.1 Except as provided in SECTION 10.9 of this Agreement, Seller shall
not assign, subcontract, or otherwise convey or delegate its rights
or duties hereunder to any other party without the prior written
consent of Buyer, which shall not be unreasonably withheld or
delayed and which consent, if given, shall provide that it is
subject to all the terms and conditions of this Agreement.
XXVI. DISASTER RECOVERY. Seller agrees to maintain a disaster recovery
plan satisfactory to Buyer and to provide Buyer with a description
of the plan as EXHIBIT G to this Agreement. The description
provided as Exhibit G is a brief summary. The plan is available in
its entirety at Seller's corporate offices.
XXVII. YEAR 2000 READINESS. Seller warrants that in performing this
contract it will accurately process date/time data from, into, and
between the twentieth and twenty-first centuries, the years 1999 and
2000, and leap year calculations.
Buyer warrants that in performing this contract if will accurately
process date/time data from, into and between the twentieth and
twenty-first centuries, the years 1999 and 2000, and leap year
calculations.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
day and year first above written.
Seller: Buyer:
Northstar Computer Forms, Inc., Travelers Express Company, Inc.,
a MINNESOTA corporation a Minnesota corporation
By: By:
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Name: Xxxxxxx X. Xxxxxxxxxx Name: Xxxx Xxxxxxx
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Title: President Title: Sr. Vice President
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Date: January 25, 1999 Date: February 16, 1999
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