EXHIBIT 10.11
O N E(R) APPLICATION DEVELOPMENT AND SUPPORT AGREEMENT
This O N E Application Development and Support Agreement ("Agreement") is
dated as of January 1, 2000, (the "Effective Date") by and between DELUXE
Financial Services, Inc. ("Deluxe"), a Minnesota corporation having a place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and eFUNDS
Corporation ("eFunds"), a Delaware corporation having its principal place of
business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1.0 PURPOSE.
This Agreement sets forth the terms and conditions under which Deluxe will
provide and support its proprietary O N E (On-line Network Exchange) System
for eFunds, such that eFunds products are made available to its financial
services customers through any available O N E product configuration.
2.0 DEFINITIONS. Capitalized terms used in this Agreement shall have the
meaning given below:
"Confidential Information" means all proprietary information of a party
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that such party treats as confidential, including, without limitation,
specifications, diagrams, information, data, materials, markets, customers,
suppliers, inventions, products, procedures, designs, research and
development, business plans, financial projections, organizations,
employees or consultants or any other similar aspects of the present or
future business of either party. The Confidential Information of Deluxe
shall include, without limitation, the O N E System and all information
relating thereto.
"Comm Specs" means the communications specifications for the eFunds
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Systems.
"Customers" means the financial services customers of eFunds.
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"Delivery and Operations Support" means the provision of professional
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services for the O N E System related to installations for Customers and
product training, and support of its operations (including first level
support) to be provided to eFunds and its Customers. Delivery and
Operations Support is described more fully in Exhibit A attached hereto.
"Development Support" means the provision of professional services to
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develop O N E System Enhancements requested by eFunds as described in a
particular Service Request. Development Support is described more fully in
Exhibit B attached hereto.
"eFunds Data" means any data or other information submitted by eFunds or
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its Customers to the O N E System, or created by eFunds or its Customers as
a result of its or their use of the O N E System for the purposes intended
by this Agreement.
"eFunds Interface" means the interface(s) between the eFunds Systems and
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the Presentation Layer of the O N E System. The eFunds Interface will be
defined by and based on the Comm Specs. The particular components of the
eFunds Interface are described more fully on Exhibit C attached hereto.
"eFunds Systems" means the back-end system proprietary to eFunds which
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interfaces with the O N E Presentation Layer and any customer specific
presentation layer. The particular components of the eFunds Interface are
described more fully on Exhibit C attached hereto.
"Enhancements" means any enhancements, improvements, other modifications to
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and/or derivative works of the O N E System.
"Professional Services Agreement" means the Professional Services Agreement
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by and between Deluxe Corporation and eFunds, effective as of April 1,
2000, including all amendments thereto.
"O N E System" means Deluxe's proprietary system known as O N E, including
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the Presentation Layer and all Enhancements, and any other modifications,
improvements and/or derivative works thereof.
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"Presentation Layer" means that portion of the O N E System that is used by
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a Customer(s) in order for such Customer to access and use all or any
portion of the O N E System. A more detailed description of the currently
available forms of the Presentation Layer is contained in Appendix D of
Exhibit B (which describes Development Support).
"Reimbursable Expenses" means costs and expenses reasonably incurred by
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Deluxe in performing the Delivery and Operations Support and Development
Support under this Agreement.
"Services" means the services provided by Deluxe hereunder in order to
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provide Delivery and Operations Support and Development Support.
"Service Request" means a document substantially in the form attached as
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Exhibit D and signed by an authorized representative of both parties, under
which Deluxe agrees to perform or have performed for eFunds the specific
additional Services described in such Service Request. The fees for a
particular Service Request will be agreed to by the parties and stated in
such Service Request.
3.0 SCOPE OF WORK.
3.1 Authorization to Perform Services.
The Services will be authorized and provided in accordance with the terms
of this Agreement, including the Exhibits attached hereto. Also, from time
to time during the term of this Agreement the parties may agree to a
Service Request(s) for specific additional Services to be provided
hereunder.
3.2 Subcontracting.
Deluxe may hire subcontractors to perform Services under this Agreement,
provided that Deluxe shall remain responsible for the performance of each
such subcontractor. Notwithstanding anything to the contrary in this
Agreement, eFunds acknowledges and agrees that some of the Development
Support it requests hereunder will not be provided directly or indirectly
by Deluxe, but rather may be provided by eFunds or its Affiliates (as
defined in the IPO and Distribution Agreement between eFunds and Deluxe
Corporation dated as of March 31, 2000) and its or their subcontractors
pursuant to the Professional Services Agreement, and that Deluxe shall have
no liability hereunder for any such Development Services actually provided
by eFunds or its Affiliates or its or their subcontractors.
4.0 MANAGEMENT AND CHANGE CONTROL.
4.1 Committees.
Deluxe and eFunds shall establish and maintain the Committees set forth
below throughout the term of this Agreement.
4.1.1 Operations Committee.
The Operations Committee shall consist of the Product Managers and Service
Managers of Deluxe and eFunds, and it will be responsible for the parties'
day-to-day performance under this Agreement and the continued operation,
support, enhancement and maintenance of the O N E System pursuant to this
Agreement. In particular, the Operations Committee will be responsible for:
a. Establish processes for implementing and communicating any
changes to the Services, whether eFunds or Deluxe initiated
through a Service Request;
b. Coordinating all proposed changes to the Services and all
proposed changes to eFunds Systems (including the Comm Specs)
and/or eFunds Interface that may affect the O N E System or the
Presentation Layer, which will be implemented and communicated
using the change management procedures approved by the
Operations Committee.
c. Reviewing all Enhancements and other changes to the O N E
System that directly impact the eFunds Systems and/or eFunds
Interface, such as product enhancements, and/or internal
technical upgrades or modifications;
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d. Documentation of any formal agreement upon changes or
Enhancements that directly impact the eFunds Systems and/or
eFunds Interface through sign-off procedures established by the
committee;
e. Sign off by the parties for the implementation of business
requirements and/or specifications for Enhancements contained
in a Service Request, communication of priority and changes to
priority of Service Requests;
f. Shared testing and quality assurance procedures and sign off
for Enhancements and other changes to the O N E System that
directly impact the eFunds Systems and/or eFunds Interface;
g. Participation from eFunds on the approval of each individual
Presentation Layer (i.e., the O N E for Windows needs may
differ from the mainframe needs) that directly impact the
eFunds Systems and/or eFunds Interface;
h. Establishment of notification process for enhancements to the
products offered by eFunds through the O N E System;
i. Other key responsibilities as outlined in the various Exhibits
to this Agreement;
j. If the Operations Committee does not reach agreement on a
particular issue, such issue will be escalated to the
Management Committee for decision;
k. Review of price changes and/or other amendments to the
Agreement.
Notwithstanding any other provision of this Agreement, eFunds shall not
implement any change to the eFunds System or the eFunds Interface or initiate
any new product or service that will use the O N E System or the Presentation
Layer without first notifying Deluxe and securing Deluxe's agreement thereto,
which agreement shall not be unreasonably withheld or delayed. Presentation of
such requests shall be made in the first instance to the Operations Committee.
Further, the provisions of the Exhibits shall be read in a manner consistent
with the provisions of this Section 4.1.1, so that, for instance, Deluxe may
make modifications to the O N E System or the Presentation Layer or Enhancements
that do not directly impact the eFunds Systems and/or eFunds Interface without
observing the procedures prescribed therein or other provisions thereof.
4.1.2 Management Committee.
The Management Committee shall consist of advisory members from each party
as deemed appropriate. The responsibilities of the Management Committee
include the following: 1) ensure sufficient and continued communications
between Deluxe and eFunds under this Agreement, 2) attempt to resolve
disputes by mutual agreement, with escalation to the Executive Committee as
necessary, 3) review and revise Deluxe and eFunds responsibilities, 4)
review and act upon performance reports, including service level reports,
5) review and analyze workload trends and variances from plans, and 6)
undertake such other responsibilities as Deluxe and eFunds agree upon from
time to time.
4.1.3 Executive Committee.
The Executive Committee shall consist of senior-level executives of Deluxe
and eFunds with advisory members from each company as deemed appropriate.
The responsibilities of the Executive Committee include the following: 1)
perform an semi-annual review of eFunds business planning initiatives and
expected changes as they relate to the services provided by Deluxe, 2)
perform an semi-annual review of Deluxe plans to support the O N E System,
3) review semi-annual performance evaluation reports, 4) attempt to resolve
by mutual agreement any disputes escalated by the Management Committee, and
5) undertake such other responsibilities as Deluxe and eFunds agree upon
from time to time.
4.2 Reporting
Deluxe will provide eFunds with such documentation and other information as
may be reasonably requested by eFunds from time to time in order to verify
that Deluxe's performance of Services is in compliance with the terms and
conditions of this Agreement. The content and format of these reports will
be recommended by the Management Committee and approved by the Executive
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Committee, and will be consistent with the service level requirements
documented in Exhibits A and B.
4.3 Meetings
The Operations Committee will meet on a monthly basis, or as required, to
review Deluxe's performance in the prior month regarding, but not limited
to, service level goals and attainment, eFunds satisfaction, workload and
work effort, and billing. These meetings shall be conducted within fifteen
(15) business days following the close of the prior month, unless both
parties agree to a different schedule. The Management Committee will meet
on a quarterly basis, or as required, to review Deluxe's performance in the
prior quarter regarding, but not limited to, service level goals and
attainment, eFunds' satisfaction, workload and work effort, and billing.
These meetings shall be conducted within twenty (20) business days
following the close of the prior quarter, unless both parties agree to a
different schedule. The Executive Committee will meet on a semi-annual
basis, or as required, to review Deluxe's performance in the prior six
months regarding, but not limited to, service level goals and attainment,
eFunds' satisfaction, workload and work effort, and billing. These meetings
shall be conducted within thirty (30) business days following the close of
the prior half-year, unless both parties agree to a different schedule.
5.0 COMPENSATION.
5.1 Services Fees.
As compensation for all Services provided to eFunds hereunder, eFunds will
pay the amounts set forth in the applicable Exhibit.
5.2 Payment Terms.
Deluxe shall invoice eFunds for all Services provided in on a quarterly
basis in arrears within 30 days of the end of the applicable quarter. In
the event eFunds disputes an item billed, eFunds shall, within 60 days of
receipt of Deluxe's invoice, notify Deluxe of the item in dispute,
specifying eFunds' complaint. eFunds may withhold payment of items in
dispute without interest until the dispute is resolved. Each party shall be
entitled to offset amounts owing under this Agreement against amounts owing
under the Professional Services Agreement, Transition Services Agreement or
Processor Agreement by notice to the other party. Payments of amounts owing
pursuant to this Agreement, which are not offset against amounts owed by
eFunds, as set forth in the preceding sentence, shall be made twice per
year on the 30th day of June and 31st day of December.
5.3 Taxes.
a. General. Deluxe shall pay all taxes, including any charges,
fees, duties, levies, imposts, rates or other assessments imposed by any
federal, state, local or foreign taxing authority, including, but not
limited to, income, profits, gross receipts, excise, property, license,
capital stock, franchise, transfer, sales, use, payroll, withholding,
social security, value added or other taxes, and any interest, penalties or
additions attributable thereto assessed or levied against Deluxe and its
Affiliates (as defined in the IPO and Distribution Agreement) and its or
their subcontractors (other than with respect to services performed by
eFunds and its Affiliates and its or their subcontractors in connection
with the Services) and in respect of the Services performed under this
Agreement.
b. Sales and Use Taxes. All applicable sales or use taxes assessed
on the provision of Services shall be paid by eFunds.
6.0 CLIENT RESPONSIBILITIES
6.1 Access to Systems, Resources and Personnel.
eFunds will provide Deluxe with timely access to appropriate eFunds
personnel and will arrange for Deluxe personnel to have suitable and safe
access to Customers' facilities and systems, solely
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as needed in order for Deluxe to perform its obligations hereunder. Each
party agrees to provide the other party's personnel reasonable access to
its systems and facilities solely in order for the parties' to perform
their obligations hereunder.
The parties will agree upon the personnel, products and other items, if
any, which eFunds will provide or make available to Deluxe in order for
Deluxe to provide the Services hereunder. eFunds will assign such personnel
and furnish such products and other items to Deluxe and in a timely manner.
eFunds will be responsible for the availability and performance of such
personnel, products and other items.
6.2 Approvals and Information.
eFunds will respond promptly to any Deluxe request to provide direction,
information, approvals, authorizations or decisions that are reasonably
necessary for Deluxe to perform Services in accordance with the
requirements of this Agreement.
7.0 PERFORMANCE STANDARDS
7.1 Service Level Requirements.
During the term of this Agreement the Services (which shall not include any
Development Support requested by eFunds that is actually provided by eFunds
pursuant to the Professional Services Agreement) shall be provided by
Deluxe in compliance with the performance standards set forth in the
applicable Exhibit. Throughout the term, Deluxe shall use such necessary
measurements and available monitoring tools and procedures as may
reasonably be required to measure and report Deluxe's performance of such
Services against the applicable performance standards. Deluxe shall provide
eFunds and eFunds' auditors with information and access to all such tools
and procedures upon request for purposes of verification.
8.0 OWNERSHIP AND LICENSES
8.1 Data.
All eFunds Data shall be and remain the property of eFunds, and Deluxe
shall have the non-exclusive right and license to use, copy, display and
distribute such eFunds Data as needed in order to provide the Services
hereunder.
8.2 O N E System.
DELUXE shall be the sole and exclusive owner of the O N E System and all
other software, hardware equipment, data and other materials (including,
without limitation, the Presentation Layer and all software, hardware,
equipment and other materials, data and information (excluding the eFunds
Data) that constitute or are included in the O N E System), except that
eFunds will own the eFunds Systems and the eFunds Interface. Subject to the
foregoing, eFunds hereby assigns and transfers to Deluxe all right, title
and interest (including without limitation, all present and future
copyrights) that eFunds has or may have in the O N E System (including all
Enhancements thereto). eFunds is hereby granted a non-exclusive,
non-transferable, limited license to use the O N E System solely as
necessary to use, test, provide quality assurance and otherwise test and
assist in the preparation of Enhancements to the O N E System, or as is
otherwise necessary in order to enable delivery of eFunds products through
the ONE System to Customers. Except as otherwise requested or approved by
Deluxe, eFunds and its Customers shall cease all use of the O N E System
upon any expiration or termination of this Agreement.
8.3 Customer License.
Deluxe shall license Customers the use of the necessary portions of the
Presentation Layer of the O N E System pursuant to the terms of a license
agreement substantially in the form attached hereto as Exhibit D, solely in
order for such Customers to access and use the eFunds Systems. Deluxe shall
have the option to modify the term of Exhibit D as needed in order to
protect its proprietary rights in and to the O N E System. eFunds shall
have no right or license hereunder to distribute, sublicense or other
provide the O N E System directly to any Customers.
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8.4 Trademark License.
Deluxe hereby grants to eFunds a non-exclusive, non-transferable,
royalty-free limited license to use the trademark "O N E", U.S. Reg. No.
1,796,150 (the "▇▇▇▇"), solely in the advertising and promotion of eFunds'
products that utilize the O N E System. All use of the ▇▇▇▇ by eFunds shall
be subject to the prior written approval of Deluxe, and in accordance with
the trademark usage standards, specifications and instructions of Deluxe,
but in no event beyond the term of this Agreement. Deluxe may inspect and
monitor the activities of eFunds to ensure that such use of the ▇▇▇▇ is in
accordance with such standards, specifications and instructions. eFunds
shall acquire no right, title or interest in the ▇▇▇▇ other than the
foregoing limited license and eFunds shall not use the ▇▇▇▇ as part of any
eFunds' trade name or permit any third party to do so. eFunds shall not
adopt, use or register any words, phrases or symbols which are identical to
or confusingly similar to the ▇▇▇▇. Upon termination of this Agreement,
eFunds shall cease and desist from use of the ▇▇▇▇ in any manner. Deluxe
shall be solely responsible for the registration and enforcement of the
▇▇▇▇, and eFunds shall cooperate with Deluxe's reasonable requests for
assistance in any such registration or enforcement proceeding, at Deluxe's
expense.
9.0 CONFIDENTIALITY
9.1 General.
All Confidential Information shall be deemed confidential and proprietary
to the party disclosing such information hereunder. Each party may use the
Confidential Information of the other party during the term of this
Agreement only as permitted or required for the receiving party's
performance hereunder. The receiving party shall not disclose or provide
any Confidential Information to any third party other than its agents,
contractors and consultants performing services in connection with the
Services and shall take reasonable measures to prevent any unauthorized
disclosure by its employees, agents, contractors or consultants during the
term hereof including appropriate individual nondisclosure agreements. The
foregoing duty shall survive any termination or expiration of this
Agreement.
9.2 Exclusions.
The following shall not be considered Confidential Information for purposes
of this Section 9: (a) Information which is or becomes in the public domain
through no fault or act of the receiving party; (b) Information which was
independently developed by the receiving party without the use of or
reliance on the disclosing party's Confidential Information; (c)
Information which was provided to receiving party by a third party under no
duty of confidentiality to the disclosing party; or (d) Information which
is required to be disclosed by law with no further obligation of
confidentiality, provided, however, prompt prior notice thereof shall be
given to the party whose Confidential Information is involved.
10.0 WARRANTIES
10.1 Limited Warranties. Deluxe warrants that all Services its performs
under this Agreement shall be performed in accordance with the provisions
of Section 7.1 as applicable and in a professional and workmanlike manner
in accordance with accepted standard practice by members of the same
profession. Deluxe also warrants to eFunds that the Services to be rendered
hereunder by Deluxe will be performed by qualified personnel and that such
Services will include reasonable diligent efforts to ensure that no defects
occur as a result of such Services. eFunds shall give reasonable
notification of any Services which eFunds believes to be deficient. If such
Services are found to be defective by Deluxe, then Deluxe's sole obligation
and eFunds' sole remedy under this warranty is for Deluxe to use reasonable
commercial efforts to remedy such defect. If Deluxe is unable to remedy
such defect within a reasonable time period, then eFunds' exclusive remedy
and Deluxe's entire liability in contract, tort or otherwise shall be a
refund of the amounts paid by eFunds' hereunder for the defective Services.
Notwithstanding the
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foregoing, Deluxe shall have no liability under this Section 10.1 for any
Services requested by eFunds that are actually performed by eFunds pursuant
to the Professional Services Agreement.
10.2 Disclaimer.
EXCEPT FOR THE LIMITED WARRANTIES IN SECTION 10.1 ABOVE, DELUXE MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
THE SERVICES OR THE O N E SYSTEM.
11.0 INDEMNIFICATION
11.1 Indemnity by eFUNDS
eFunds shall fully protect, indemnify and hold harmless and defend Deluxe,
its subsidiaries, parent, affiliates, directors, officers, agents and
employees from and against any and all loss, costs (including reasonable
attorney's fees) damages, injury, liability, claims, demands, or causes of
action arising out of, incident to, or in connection with any act or
omission, negligent or otherwise, of eFunds or its officers, agents or
employees in performance of this Agreement, related to (a) claims for
personal injury, including death, or property damage, (b) third party
claims of infringement of such third party's proprietary rights, including,
but not limited to, patent, copyrights or trademarks, or (c) third party
claims related to eFunds provision of its products and services (including
the eFunds Systems) to Customers and other third parties; provided,
however, that eFunds shall have no liability under this Section 11.1 to the
extent such loss, cost, damage, injury, liability, claim, demand or action
is due to the negligence of Deluxe or Deluxe is obligated to indemnify
eFunds pursuant to Section 11.2.
11.2 Indemnity by Deluxe
Deluxe shall fully protect, indemnify and hold harmless and defend eFunds
for all costs, expenses and damages, including reasonable attorney's fees,
associated with any claims and/or suits alleging infringement or
misappropriation (together "infringement") of any patent, trademark,
copyright, trade secret or violation of any other intellectual property or
proprietary rights by reason of the use of the O N E System by eFunds as
permitted hereunder. If the use of the O N E System becomes the subject of
a claim or threatened action with respect to any such alleged infringement,
as Deluxe's sole obligation and eFunds' sole remedy, Deluxe will, at its at
sole election and expense, replace the alleged infringing technology or
system with a substitute free of the infringement, or shall procure for
eFunds' benefit a license or other right to use the same; or shall remove
the allegedly infringing technology or system or portion thereof.
11.3 Indemnification Procedures
With respect to any third party claims for which a party seeks
indemnification under this Section 11, the indemnification procedures set
forth in Section 7.01(d)-(f) of the IPO and Distribution Agreement between
eFunds and Deluxe Corporation dated as of March 31, 2000 shall apply, and
are hereby incorporated herein and made a part hereof for all purposes as
if fully set forth herein. With respect to any claims for indemnification
which do not involve a claim by a third party, the procedures set forth in
Section 14 hereof shall govern the parties' rights and obligations with
respect thereto.
12.0 TERM AND TERMINATION
12.1 Term.
This Agreement will commence as of the Effective Date, and will terminate
as of December 31, 2001.
12.2 Termination for Cause.
If either party believes that the other party has failed in any material
respect to perform its obligations under this Agreement (including any
Exhibit hereto), then that party may provide
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written notice to the other party's members of the Management Committee
describing the alleged failure in reasonable detail. If the alleged failure
relates to a failure to pay any sum due and owing under this Agreement, the
breaching party shall have three business days after notice of such failure
to cure. With respect to all other defaults, if the breaching party does
not, within thirty (30) calendar days after receiving such written notice,
either (a) cure the material failure or (b) if the breach is not one that
can reasonably be cured within thirty (30) calendar days, develop a
mutually agreed to plan to cure the failure and diligently proceed
according to the plan until the material failure has been cured, then the
non-breaching party may terminate this Agreement or the affected Exhibit,
in whole or in part, for cause by written notice to the members of the
Management Committee of the breaching party. Prior to any termination of
this Agreement or a Service Request for cause, the party receiving the
initial notice under the preceding sentence will be afforded an opportunity
to meet with the Management Committee representatives of the non-breaching
party to explain its position.
12.3 Termination for Bankruptcy.
Either party shall have the immediate right to terminate this Agreement
upon written notice in the event that (a) the other party becomes
insolvent, enters into receivership, is the subject of a voluntary or
involuntary bankruptcy proceeding, or makes an assignment for the benefit
of creditors; or (b) a substantial part of the other party's property is or
becomes subject to any levy, seizure, assignment or sale for or by any
creditor or governmental agency.
12.4 Termination Assistance.
It is the intent of the parties that at the expiration or termination of
the scope of Services (other than as a result of termination resulting from
a failure to pay any sum due and owing under this Agreement), Deluxe will
cooperate with eFunds to assist with the orderly transfer of the Services
provided by Deluxe hereunder to eFunds itself or another services provider.
Prior to expiration or such termination of the scope of Services, eFunds
may request through a Service Request that Deluxe perform and, if so
requested, Deluxe shall perform (except in the event of a termination due
to a failure by eFunds to pay any amounts due and payable under this
Agreement when due) services in connection with migrating the work of
eFunds to eFunds itself or another services provider. The parties shall
develop a mutually acceptable Services transition plan, and Deluxe shall
provide Services hereunder as provided in such plan.
12.5 Other Rights and Obligations on Termination.
Upon termination of this Agreement for any reason, the parties shall have
the following rights and obligations:
(a) Termination of this Agreement shall not release either party from
the obligation to make payment of all amounts then or thereafter due and
payable; and
(b) The parties' respective rights and obligation under Sections 5, 7,
8, 9, 10, 11, 12.4, 12.5, 13, 14 and 15 hereof shall survive such
termination of this Agreement.
(c) The parties agree that, subject to the above provisions of Section
12.5(a), and without prejudice to any other remedies at law or in equity
that either party may have in respect of any breach of this Agreement,
neither party shall be entitled to or claim that it is entitled to any
compensation or like payment as a result of or arising out of any
termination in accordance with this Section 12, whether claimed as loss of
good will, lost profits, lost investments, or otherwise.
13.0 LIMITATION OF LIABILITY
In no event will either party be liable to the other party any lost
profits, loss of business, loss of use, lost savings or other
consequential, special, incidental, indirect, exemplary, punitive or other
similar damages, even if such party has been advised of the possibility of
such damages.
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14.0 LAW AND DISPUTES
14.1 Governing Law.
This Agreement will be governed by the laws of the State of Minnesota,
without regard to its choice of law provisions.
14.2 Guiding Principals On Dispute Handling
eFunds and Deluxe agree to utilize all reasonable efforts to resolve any
dispute, whether arising during the term of the Agreement or at any time
after the expiration or termination of this Agreement, which touches upon
the validity, construction, meaning, performance or effect of this
Agreement or the rights and liabilities of the parties, promptly and in an
amiable manner by negotiations between the parties.
14.3 Problem Escalation Procedures
Either party may refer any dispute to the Management Committee. The
Management Committee shall meet as soon as is reasonably possible after a
dispute is referred to it, giving due regard to the nature and impact of
the issue under consideration.
If a dispute cannot be resolved by the Management Committee within a time
period that is satisfactory to the party raising the issue under
consideration, the Management Committee may refer the dispute to the
Executive Committee. The Executive Committee shall meet as soon as is
reasonably possible after a dispute is referred to it, giving due regard to
the nature and impact of the issue under consideration.
If a dispute cannot be resolved by the Executive Committee within a time
period that is satisfactory to the party raising the issue under
consideration, the Executive Committee may refer the dispute to the Chief
Executive Officer of Deluxe and the Chief Executive Officer of eFunds. The
Chief Executive Officers shall meet as soon as is reasonably possible after
a dispute is referred to it, giving due regard to the nature and impact of
the issue under consideration.
If a dispute cannot be resolved by the Chief Executive Officers within a
time period that is satisfactory to the party raising the issue under
consideration, the Chief Executive Officers may submit the dispute for
arbitration as provided in Section 14.4.
14.4 Arbitration
The parties stipulate and agree that if they are unable to resolve any
controversy arising under this Agreement then such controversy shall be
submitted at the election of either party to mandatory and binding
arbitration in lieu of litigation and judgment upon the award rendered by
the arbitrator may be entered in any court of competent jurisdiction in the
State of Minnesota. Such arbitration shall be held in Minneapolis,
Minnesota and shall be conducted in accordance with the Commercial Rules of
the American Arbitration Association ("AAA"). Every matter in the
controversy shall be settled by a single arbitrator reasonably acceptable
to the parties, unless the parties agree upon a panel of three arbitrators.
If the parties are unable to agree upon the single arbitrator within 30
days of the commencement of the arbitration with the AAA, the AAA may
designate an arbitrator to hear the dispute. If a panel of three
arbitrators is agreed upon by the parties, each party shall select O N E
arbitrator and the third to be agreed upon jointly. However, if the parties
are unable to agree upon the third arbitrator within five (5) days after
request of arbitration, either party may request the appointment of an
arbitrator by the AAA. In the event court action is required to enforce
this Agreement to arbitrate, the parties hereby consent to the exclusive
jurisdiction of the courts of Minnesota. This Section shall be interpreted,
construed and governed by and in accordance with the rules of the AAA.
Both parties shall continue performing their respective obligations and
responsibilities under this Agreement while any dispute is being resolved
in accordance with this Section 14.4, unless and
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until such obligations are terminated or expire in accordance with the
provisions of this Agreement.
14.5 Limitation of Actions.
No proceeding, regardless of form, arising out of or related to this
Agreement may be brought by either party more than two (2) years after the
accrual of the cause of action, except that (a) proceedings related to
violation of a party's proprietary rights or any duty to protect
Confidential Information may be brought at any time within the applicable
statute of limitations, and (b) proceedings for non-payment may be brought
up to two (2) years after the date the last payment was due.
15.0 General
15.1 Notices.
Any notice or other communication required or permitted to be made or given
by either party pursuant to the Contract Documents will be in writing, in
English, and will be deemed to have been duly given: (i) five (5) business
days after the date of mailing if sent by registered or certified U.S.
mail, postage prepaid, with return receipt requested; (ii) 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 (iii) 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 DELUXE: With a copy to:
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Deluxe Financial Services, Inc. Deluxe Financial Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇ Attn: Legal Department
Fax: (▇▇▇)▇▇▇-▇▇▇▇ Fax: (▇▇▇)▇▇▇-▇▇▇▇
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In the case of eFUNDS: With a copy to:
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eFunds Corporation EFunds Corporation
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ F ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: Legal Department
Fax: (▇▇▇)▇▇▇-▇▇▇▇ Fax: (▇▇▇)▇▇▇-▇▇▇▇
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15.2 Reasonable Behavior.
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.
15.3 Assignment.
Neither party may assign or otherwise transfer this Agreement or any of the
rights that they grant 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.
15.4 Integration.
This Agreement (including all Exhibits attached hereto which are
incorporated herein by reference) constitutes the entire agreement between
the parties, and supersede all other prior or contemporaneous
communications between the parties (whether written or oral) relating to
the subject matter of this Agreement. This Agreement (including all
Exhibits attached hereto) may be
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modified or amended solely in a writing signed by both parties. Any terms
and conditions varying from this Agreement on any purchase order or other
written notification from either party are void.
15.5 Severability.
The provisions of this Agreement shall be deemed severable, and the
unenforceability of any O N E 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.
15.6 Order Of Precedence.
In the event of any conflict between or among the provisions contained in
this Agreement, the following order of precedence will govern: (a) Service
Requests, (b) Exhibits to the Agreement other than Service Requests; (c)
this Agreement, exclusive of its Exhibits.
15.7 No 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.
15.8 Force Majeure.
Neither party shall be liable for any losses arising out of the delay or
interruption of its performance of obligations (other than payment
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 (a "Force Majeure
Event"). Upon the occurrence of a Force Majeure Event, the non-performing
party shall be excused from any further performance or observance of the
affected obligation(s) for so long as such circumstances prevail and such
party uses commercially reasonable efforts to recommence performance or
observance whenever and to whatever extent possible without delay. Any
party so delayed in its performance will immediately notify the other by
telephone or by the most timely means otherwise available (to be confirmed
in writing within two (2) business days of the inception of such delay) and
describe in reasonable detail the circumstances causing such delay.
Each party has caused its authorized representative to execute this Agreement as
of the Effective Date.
eFunds Corporation Deluxe Financial Services, Inc.
By:________________________________ By:______________________________
Name: _____________________________ Name: ___________________________
Title: ____________________________ Title: __________________________
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