EXHIBIT 10.13
DATA CONTRIBUTION AGREEMENT
This Data Contribution Agreement ("Agreement") is made this 1st day of May,
2000, between Direct Checks Unlimited, Inc. ("Check Printer") and eFunds
Corporation ("eFunds").
WHEREAS, eFunds owns and operates a consumer reporting agency as defined by
the federal Fair Credit Reporting Act, as amended 15 U.S.C. Section 1681 et seq.
("Debit Bureau"); and
WHEREAS, Check Printer is a direct marketer of checks; and
WHEREAS, Check Printer has agreed to contribute certain mutually agreed
upon customer account records ("Account Records") to Debit Bureau, subject to
the terms and conditions of this Agreement.
NOW, THEREFORE, for consideration exchanged between the parties, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Data Contribution. Check Printer agrees to make available to Debit
Bureau at mutually agreeable times, but not less often than weekly, and in a
mutually agreeable format, the Account Records. Check Printer shall deliver the
Account Records through Deluxe Financial Services, Inc., as described in that
certain Processor Agreement of even date herewith by and between eFunds and
Deluxe Financial Services, Inc., and pursuant to the terms of a technical
specification document to be agreed upon by Check Printer and eFunds and
attached as an Exhibit hereto. eFunds will provide assistance to Check Printer
in preparing and delivering the Account Records to Debit Bureau at Check
Printer's request.
2. Deletion/Blocking. If an individual requests that his/her Account
Record(s) be deleted and/or blocked by Check Printer or eFunds, (a) eFunds'
right (as described in Section 3 below) to use such Account Records(s) will
immediately terminate upon its receipt of the applicable request for deletion
and/or blocking from Check Printer or the individual, and (b) eFunds will delete
and/or block such Account Record(s) in accordance with a process agreed to by
the parties.
3. Permitted Use. Debit Bureau agrees that it will only use the Account
Records for any purpose that is both (a) consistent with applicable federal,
state and local laws, rules and regulations (including, without limitation, the
Fair Credit Reporting Act, 15 U.S.C. Section 1681 et seq. (the "FCRA")), and (b)
involves the provision of fraud prevention and risk management services either
directly by Debit Bureau or through eFunds or any of its Affiliates (as defined
in the IPO and Distribution Agreement between eFunds and Deluxe Corporation
dated as of March 31, 2000) to financial institutions and others (i.e., to
protect consumers from identity theft as well as reduce losses due to fraud). In
no event shall Debit Bureau release any list or otherwise specifically identify
the Account Records (or the individuals associated with such Account Records) as
being Check Printer's customers. Except as expressly permitted hereunder, Debit
Bureau shall not copy, display, distribute or otherwise use in any manner or
means the Account Records, in whole or in part.
4. Audits. At any time during the term of this Agreement and thereafter,
Check Printer and/or its agent(s) shall have the right to audit and verify Debit
Bureau's use of the Account Records. Any such audit(s) shall be conducted during
normal business hours with at least three (3) days prior written notice. Debit
Bureau shall cooperate and provide Check Printer and/or its agents with
reasonable assistance during any such audit(s).
5. Customer Assistance. eFunds will cooperate and help support Check
Printer in connection with any inquiries from a customer(s) that are received
regarding the validity or correctness of the data for such customer(s) included
in the Account Records.
6. Notice to Furnishers of Information. By signing this Agreement, Check
Printer acknowledges its receipt of the attached "Notice to Furnishers of
Information: Obligations of Furnishers Under the FCRA", as required by the FCRA.
7. Term and Termination. This Agreement shall be in effect until July 1,
2001, unless earlier terminated as provided in this Section 7. In addition, the
term of this Agreement may be extended upon the written agreement of the
parties. This Agreement may be terminated by either party at any time with
written notice to the other party if the other party fails to cure its material
breach hereof within fifteen (15) days after its receipt of such notice. Upon
any termination of this Agreement, Check Printer shall immediately discontinue
the provision of the Account Records to Debit Bureau, and Debit Bureau may, at
its option, continue to use all Account Records delivered prior to termination
as expressly permitted under Section 3 hereof. The following Sections of this
Agreement shall survive any termination hereof: 2, 3, 4, 5, 8, 9, 10, 11 and 12.
8. Expenses. Each party shall bear its own costs and expenses in connection
with the performance of its obligations under this Agreement.
9. Limited Warranty and Warranty Disclaimer.
9.1 Limited Warranty. Check Printer warrants to eFunds that it will
use commercially reasonable efforts to ensure that the Account Records
provided to eFunds hereunder are the same as the version of such Account
Records contained in Check Printer's own files. For any breach of the
foregoing warranty, as Check Printer's exclusive liability and eFunds sole
remedy, Check Printer will provide updates to the Account Records promptly
after it learns of any errors, or is notified of any errors by eFunds, in
such Account Records such that the version delivered to eFunds hereunder is
the same as the version of such Account Records contained in Check
Printer's own files.
9.2 Disclaimer. Except for the limited warranty in Section 9.1, The
Account Records are provided "AS IS" with no warranties of any kind,
express or implied, including, without limitation, the warranties of
performance, merchantability and fitness for a particular purpose.
10. Indemnification. eFunds shall indemnify and hold harmless Check Printer
and its affiliated companies from and against all direct damages suffered and
expenses incurred (including reasonable attorneys' fees) by Check Printer and
its affiliated companies as a result of any third party claim related to any use
by eFunds and its Affiliates of the Account Records delivered to Debit Bureau
hereunder. With respect to any third party claims for which a party seeks
indemnification under this Section 10, the indemnification procedures set forth
in Section 7.01(d)-(f) of the IPO and Distribution Agreement shall apply, and
are hereby incorporated herein and made a part hereof for all purposes as if
fully set forth herein.
11. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY HEREUNDER FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL,
EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL OR OTHER SIMILAR DAMAGES, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. General Provisions.
12.1 Notices. Any notice or other communication required or permitted
to be made or given by either party pursuant to this Agreement will be in
writing, in English, and will be deemed to have been duly given: (a) five
(5) business days after the date of mailing if sent by registered or
certified U.S. mail, postage prepaid, with return receipt requested; (b)
when transmitted if sent by facsimile, provided a confirmation of
transmission is produced by the sending machine and a copy of such
facsimile is promptly sent by another means specified in this Section; or
(c) when delivered if delivered personally or sent by express courier
service. All notices will be sent to the other party at its address as set
forth below or at such other address as such party will have specified in a
notice given in accordance with this Section:
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In the case of Check Printer: With a copy to:
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Direct Checks Unlimited, Inc. Deluxe Corporation
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Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: General Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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In the case of eFUNDS: With a copy to:
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eFunds Corporation eFunds Corporation
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: General Counsel
Attn: Controller Fax: (▇▇▇)▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
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12.2 Reasonableness. Each party will act in good faith in the
performance of its respective responsibilities under this Agreement and
will not unreasonably delay, condition or withhold the giving of any
consent, decision or approval that is either requested or reasonably
required by the other party in order to perform its responsibilities under
this Agreement.
12.3 Assignment. Neither party may assign or otherwise transfer this
Agreement, in whole or in part, without the prior written consent of the
other party. Any purported assignment in violation of the preceding
sentence will be void and of no effect. This Agreement will be binding upon
the parties' respective successors and permitted assigns.
12.4 Complete Agreement; Amendment. This Agreement, including the
Exhibit attached hereto, constitutes the entire agreement between the
parties, and supersedes all other prior or contemporaneous communications
between the parties (whether written or oral) relating to the subject
matter hereof. This Agreement may be modified or amended solely in a
writing signed by both parties.
12.5 Severability. This Agreement shall be deemed severable, and the
unenforceability of any one or more provisions shall not affect the
enforceability of any other provisions. In addition, if any provision of
this Agreement, for any reason, is declared to be unenforceable, the
parties shall substitute an enforceable provision that, to the maximum
extent possible in accordance with applicable law, preserves the original
intentions and economic positions of the parties.
12.6 Waiver. No failure or delay by either party in exercising any
right, power or remedy will operate as a waiver of such right, power or
remedy, and no waiver will be effective unless it is in writing
and signed by the waiving party. If either party waives any right, power or
remedy, such waiver will not waive any successive or other right, power or
remedy the party may have under this Agreement.
12.7 Force Majeure. Neither party shall be liable for any losses
arising out of the delay or interruption of its performance of obligations
under the Agreement due to any act of God, act of governmental authority,
act of public enemy, or due to war, riot, flood, civil commotion,
insurrection, severe weather conditions, or any other cause beyond the
reasonable control of the party delayed.
IN WITNESS WHEREOF, the parties have executed this Agreement through their
duly authorized representatives.
DIRECT CHECKS UNLIMITED, INC. eFUNDS CORPORATION
By: _____________________ By: _______________________
Title: ____________________ Title: ______________________