SOFTWARE LICENSE, DEVELOPMENT AND MAINTENANCE AGREEMENT
This Software License, Development and Maintenance Agreement
("Agreement") is effective as of the 3rd of February by and
between eFunds Corporation ("eFunds"), with an office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and eConnect (''Client')
with an office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇.
In consideration of the mutual promises contained herein and
other consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, eFunds and Client agree as
follows:
Client desires to obtain certain license rights to the eFunds
Products and support services from eFunds in accordance with the
terms and conditions of this Agreement. eFunds is willing to
license to Client the eFunds Products and provide to Client the
services specified in this Agreement, in accordance with and
subject to the terms and conditions of this Agreement.
1. Definitions. In addition to other terms defined elsewhere
in this Agreement, the following terms shall have the following
meanings when used in this Agreement, unless the context clearly
requires otherwise:
A. "Client Customization" means any computer programming code
developed by Client using any Source Code provided by eFunds, and
all related Documentation, or any other Modification, and
includes, without limitation, any and all Modifications created
or developed by Client.
B. "Confidential Information" means (i) a party's proprietary or
confidential information which is designated orally or in writing
as such or that by nature of the circumstances surrounding the
disclosure ought in good faith to be treated as proprietary or
confidential, and (ii) for purposes of Client's obligations under
Section 16 of this Agreement, all eFunds Products, Client
Customizations, and Source Code, including all trade secrets
contained therein.
C. "Customized Programs" means, individually and collectively,
as
the context requires, eFunds Customizations and Client
Customizations.
D. "eFunds Customization" means any computer programming code
developed by eFunds at Client's request; and all related
Documentation, including but not limited to any and all
Modifications created or developed by eFunds at Client's request.
E. "eFunds Products" means all Standard Programs, eFunds
Customizations, and related Documentation licensed to Client
hereunder.
F. "Documentation" means (a) those written manuals and other
officially published written user documentation provided to
Client by eFunds for Standard Programs and eFunds Customizations
licensed by Client, and (b) with respect to Customized Programs,
all user, reference, system, programming and coding documentation
and specifications related thereto, and all updates related to
any of the foregoing.
G. "Enhancement" means any change or addition to computer
programming code, other than Fixes and Maintenance Updates, that
adds new functions, or significantly improves operation, quality,
functional, capability, and/or performance by changes in system
design or coding.
H. "Final Requirements Definition" or "FRD" means (i) the
document
to be created by eFunds pursuant to subsection 3 b) of this
Agreement which provides a detailed definition of the eFunds
Customizations to be developed for Client in order to initially
adapt or tailor the Standard Programs to Client's operating
environment, and/or (ii) any subsequent document created by
eFunds at Client's request pursuant to subsection 3 e) below
which details additional eFunds Customizations to be developed
for Client.
I. "Fix" means a correction to a eFunds Product or Client
Customization developed on an as-needed basis to address a
reproducible error, bug, or malfunction in a eFunds Product or
Client Customization. A Fix may include a temporary by-pass to
correct or lessen the impact of the effect, or a permanent change
to correct the defect.
J. "Foundation Program" means those Standard Programs specified
as
such in Exhibit A to this Agreement or as to Standard Program
ordered by Client after the date of this Agreement, specified as
such by eFunds in writing or in Documentation.
K. "Initial Programs" means the Standard Programs listed in
Exhibit
A as of the date of this Agreement, and/or any eFunds
Customizations developed pursuant to subsection 4 c) below, if
any.
L. "Maintenance Services" shall have the meaning ascribed
thereto in
Section 8 of this Agreement.
M. "Maintenance Update" means a Fix or collection of Fixes, and
may,
in eFunds' sole discretion, include minor improvements in
operational performance, quality and/or functional capability
that do not meet the definition of Enhancement.
N. "Modification" means any revision, modification, adaptation,
compilation, derivative work, enhancement, or other change made
to any Source Code or Documentation, or any other change made to
any eFunds Product or Client Customization, and specifically
includes without limitation, eFunds Customizations and Client
Customizations.
O. "Non-Foundation Program" means those Standard Programs listed
in
Exhibit A or subsequently licensed by Client hereunder and which
are not specified as Foundation Programs.
P. "Preliminary Requirements Assessment" or "PRA" means: (i) the
document created by eFunds based upon information provided by
Client, which provides a high-level assessment of eFunds
Customizations requirements for the Standard Programs in order to
Initially adapt or tailor the standard Programs to Client's
operating environment, and/or (ii) any subsequent document
created by eFunds at Client's request pursuant to Section 3 e)
below for additional eFunds Customization(s) to be developed by
eFunds for Client.
Q. "Product Release" means an accumulation of Fixes and/or
Maintenance Updates.
R. "Professional Services" means any services other than
Maintenance
Services that eFunds may agree to provide from time-to-time
hereunder, including but not limited to requirements reviews,
creating a PRA or FRD, project management, developing eFunds
Customizations, training, software installation, switch
preparation, and conversion services.
S. "Site" means, collectively, the permanent and temporary
Client
data processing centers identified in Section 4 c) below (the
"Permanent Site" and "Temporary Site", respectively), where the
eFunds Products and any Client Customized Programs may be used
pursuant to this Agreement.
T. "Source Code" means the human-readable form of computer
programming code and any related (i) system documentation,
including all comments and procedural code such as job control
language, and (ii) libraries, screen files, data directories,
documentation and other items reasonably necessary to reconstruct
a Standard Program, eFunds Customization or Client Customization.
U. "Standard Programs" means any of the eFunds software programs
then being generally offered for license by eFunds and listed in
Exhibit A to this Agreement, and others that may be licensed
later by Client from eFunds hereunder, and all related
Enhancements, Fixes, Maintenance Updates, Product Releases,
Versions, and Documentation.
V. "Version" means (a) an accumulation of Maintenance Updates,
Product Releases, and/or Enhancements, and/or (b) any Maintenance
Update, Product Release or Enhancement, which changes a Standard
Program to a new system-operating platform.
2. Scope of Agreement. Subject to the terms and conditions of
this Agreement, and for the prices set forth in Exhibit A hereto,
eFunds agrees to provide the following products and services to
Client:
A. Standard Programs. eFunds agrees to license to Client the
Standard Programs listed on Exhibit A hereto in accordance with
the terms of Section 4 of this Agreement Standard Programs
licensed in object code-only form am so listed in Exhibit A;
B. eFunds Customizations. If requested by Client and agreed
upon in writing by eFunds, eFunds agrees to complete a Final
Requirements Definition in accordance with Section 3 b) of this
Agreement and develop eFunds Customizations in accordance
therewith;
C. Maintenance Services. eFunds agrees to provide Maintenance.
Services in accordance with Section 8 of this Agreement;
D. Professional Services. eFunds agrees to provide any
Professional Services identified in this Agreement or on Exhibit
A hereto; and
E. Additional Products and Services. Subject to subsection 19
m) below, eFunds may, in the future upon Client's request, and
upon such terms and conditions and at such prices as the parties
may agree in writing, license such additional Standard Programs,
develop such eFunds Customizations, and/or provide such
Maintenance Services and/or Professional Services as the parties
may agree upon in writing.
F. Obligations of Client. The Client undertakes to:
(i) provide to eFunds promptly any information and
cooperation which eFunds may reasonably require from time to time
to provide warranty services, Maintenance Services, and otherwise
perform its obligations under this Agreement;
(ii) prior to delivery to Client at Client's own expense,
prepare the Site and provide such environmental and operational
conditions as may be specified by eFunds; and
(iii) provide eFunds reasonable access to the Client's
premises and business records for the purpose of verifying that
Client is complying with the terms and conditions of this
Agreement.
3. Requirements Definition. If requested by Client and agreed
upon in writing by eFunds, eFunds shall create a Final
Requirements Definition for Client in accordance with the
following:
A. Preliminary Requirements Assessment. eFunds has already
created
a Preliminary Requirements Assessment based upon information
obtained from Client. The PRA provides a high-level set of eFunds
Customization requirements for the Standard Programs and eFunds'
estimated cost to Client for such eFunds Customizations based
upon such Client information. The PRA, which Client represents
has been reviewed and approved by Client is attached hereto and
incorporated herein by reference as Exhibit B.
B. Final Requirements Definition. Upon execution of this
Agreement,
eFunds shall immediately commence the creation of the FRD for the
fee set forth in Exhibit A. The FRD shall contain a detailed
definition of eFunds Customizations to the Standard Programs and
the actual cost to Client for such eFunds Customizations. eFunds
shall complete the FRD and present the FRD to Client within no
more than sixty (60) days of execution of this Agreement, unless
(i) Client delays the creation of the FRD, or (ii) additional
time is agreed upon by the parties pursuant to subsection 3 d)
below or otherwise. In either such event, the sixty (60) day
period shall be extended by the number of days of Client's delay
or as agreed upon by the parties. Client agrees to provide eFunds
all reasonably required assistance and to make appropriate staff
and resources available to eFunds in a timely manner and as
necessary to complete the FRD.
C. Go/No Go. In the event that the cost to Client of eFunds
Customizations as presented in the FRD, exclusive of changes
agreed upon by the parties pursuant to subsection 3 d) below or
other changes or additions requested by Client that materially
change the PRA, does not exceed the estimated cost set forth in
Exhibit B by more than twenty percent (20%), eFunds shall be
authorized to, and eFunds shall, proceed with development of the
eFunds Customizations in accordance with the FRD. In the event
that: (i) the cost to Client of eFunds Custornizations as
presented in the FRD, exclusive of changes agreed upon by the
parties pursuant to subsection 3 d) below or other changes or
additions requested by Client that materially change the PRA,
exceeds the estimated cost set forth in the PRA by more than
twenty percent (20%), and (ii) within thirty (30) days of
presentment of the FRD to Client by eFunds, either eFunds and
Client cannot work out a mutually acceptable fee for eFunds
Customizations, or in the absence of such agreement eFunds is
unwilling to absorb the difference between the eFunds
Customization fee set forth in the PRA and the FRD; then (iii)
either party may terminate this Agreement in accordance with
subsection 13 a) below.
D. Change Procedures. A change in scope of any PRA or FRD is
any
alteration to the PRA or FRD that affects cost, payments, or
schedule. Any change in the scope of a PRA or a FRD shall become
effective only when a written change request is executed by
authorized representatives of both parties in accordance with
this subsection 3 d). eFunds has overall responsibility for the
change process through its required resolution. Any change
requested by either party will be evaluated, resolved and/or
negotiated with respect to cost, schedule, resource impact and/or
priorities by authorized representatives of eFunds and Client in
accordance with the following:
(i) The parties shall mutually agree upon the form of a "Change
Order Request" to be used hereunder. The change request shall be
described in the Change Order Request form by the party
originating the request The Change Order Request form will then
be submitted to eFunds' project manager for approval;
(ii) eFunds' project manager will estimate the schedule impact
and cost to perform the evaluation, document this on the Change
Order Request form, and return the form to the Client project
manager for approval. If the Client project manager authorizes
the evaluation expenditure in writing, the eFunds project manager
will assign the Change Order Request to the appropriate personnel
to perform the technical evaluation-,
(iii) Following the technical evaluation, the eFunds project
manager will determine the cost to Client of any changes or
additions to eFunds Customizations and the impact on the current
project scheduleto implement the Change Order Request document
this on the Change Order Request form, and return the form to the
Client project manager for an implementation decision, which
shall not be unreasonably withheld or delayed. Upon receipt of
the approved Change Order Request form signed by the Client
project manager, the eFunds project manager will schedule the
change for implementation. Approved Change Order Requests will be
deemed incorporated into and a part of the applicable PRA or FRD;
and
(iv) eFunds shall manage the impact Change Order Requests have
on
project progress and cost, including both the impact of
performing the Change Order Request evaluation and the impact of
Change Order implementation. The eFunds project manager shall
maintain a log to keep track of all changes/issues and the
current status of each.
E. Additional Requirements. In the event that, after
completion of work in accordance with the initial FRD, Client
requests additional eFunds Customizations, eFunds shall create a
PRA and a FRD at the price to be agreed upon by the parties, and
the terms of subsection 3 c) and 3 d) above shall apply thereto.
F. FRD Price. In all cases, the price for any FRD agreed upon
by the ponies in Exhibit A or subsequent to the date hereof shall
be due and payable by Client and shall be non-refundable.
4. License. Subject to the terms and conditions of this
Agreement, eFunds grants Client a perpetual, nonexclusive,
non-transferable license to use the eFunds Products and Client
Customizations (if any) for the sole purpose of providing
electronic funds transfer and card management services for its
financial institution customers, subject to the following
limitations:
A. Scope.
(i) Each license entities Client to use one copy of the
Foundation Programs in a productive mode (and to retain one
reference copy of the Foundation Program in accordance with all
applicable provisions of this Agreement) only at the Permanent
Site identified below, and to use the Documentation provided,
solely for the purpose of providing electronic funds transfer
exclusively to its customers doing business in the Dominican
Republic. Foundation Programs copied for archival, testing,
development, temporary back-up or temporary transfer to the
Temporary Site identified below (not to exceed ninety (90) days)
shall not be considered productive use. A license for any
Non-Foundation Program(s) is concurrent with the license for the
Foundation Program at the Site. The license entitles Client to
the use of multiple copies of the Non-Foundation Program(s)
solely in association with the licensed copy of the Foundation
Program. Client may copy the Documentation. in reasonably
sufficient numbers to support its authorized use of the Standard
Programs, provided that Client reproduces any copyright or other
proprietary notice contained in the Documentation and otherwise
complies with its obligations under Section 16 of this Agreement.
(ii) For any Source Code which eFunds provides to Client, eFunds
hereby grants to Client a limited, non-exclusive and
non-transferable license for the term of this Agreement to use,
copy, execute and display such Source Code solely at the
Permanent Site and solely for the purpose of developing
Modifications to Standard Programs for Client's internal use.
(iii) Any Customized Program shall be deemed a part of the
Foundation Program or Non-Foundation Program from which it was
created or to which it relates, and Client shall have the same
license rights therein, as well as with respect to associated
Documentation, as is granted by eFunds to Client in subsection 4
a) i) above for the related Foundation or Non-Foundation Program.
B. Restrictions on Use.
(i) Client shall not use, copy, translate, print or display any
eFunds Product, Client Customization, or Source Code, in whole or
in part other than as expressly authorized in this Agreement.
(ii) Client agrees not to reverse assemble or decompile any
eFunds Product or portion thereof which eFunds does not provide
in Source Code form.
(iii) In no event shall Client, without eFunds' express prior
written consent, use any eFunds Product or any Client
Customization to provide services to customers outside the
Territory. Client acknowledges that any consent to such
additional use by eFunds will require the payment by Client of
additional license fees. In no event shall client, without
eFunds' prior written consent, use of any eFunds Product or any
Client Customization in any time sharing or service bureau
environment or for shared, regional, or national network or
interchange.
(iv) Client shall maintain appropriate and mutually agreed
processes and systems to assure that all transactions performed
by Client using or relying in any way upon any eFunds Product are
lawful; advise eFunds in writing prior to implementing any
changes to such mutually agreed processes and systems; permit
only lawful transactions to be undertaken using or relying in any
way upon any eFunds Product; and cease immediately performing any
transactions that, in the reasonable opinion of eFunds as set
forth in written notice to Client, are or may be unlawful. This
is a material term of this Agreement.
(v) Client agrees that it shall not use any eFunds Product,
permit the use of any eFunds Product, or represent to any third
party that it does, will, or intend to use any eFunds Product in
connection with any Internet gaming or gambling activities of any
kind without the express written consent of eFunds. Such consent
may be withheld by eFunds in its sole discretion. Client shall
also obtain the advance written approval of eFunds for any public
statements related to Internet gaming or gambling activities that
use, will use, or intend to use any eFunds Product. This is a
material term of this Agreement.
(vi) Any rights not expressly granted to Client in this
Agreement
are reserved by eFunds.
C. Site.
Permanent Site: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Temporary Site: Same as Permanent
5. Term.
A. License. The license granted hereunder is perpetual upon
execution of this Agreement, subject to termination in accordance
with this Agreement.
B. Maintenance.
(i) Initial Term. With respect to Maintenance Services for
Initial Programs, this Agreement will be effective upon the date
first set forth above and will continue for sixty (60) months
following the date of Installation (the "Initial Term").
(ii) Renewal Terms. With respect to Maintenance Services for
Initial Programs, after the Initial Term, this Agreement shall be
automatically renewed for successive two (2) year periods (each,
a "Renewal Term") unless either party terminates the Agreement as
provided for in this Agreement.
(iii) Other Customized Programs. In the event that Client
requests and eFunds agrees to provide maintenance and support
services for additional eFunds Customizations and/or Client
Customizations, such maintenance and support services shall be
coterminous with this Agreement unless eFunds and Client
separately agree in writing on a different term for such
services.
6. eFunds Deliverables.
A. Installation and Testing. eFunds will install and test the
Initial Programs licensed by Client at the Permanent Site. The
installation and testing of the Initial Programs will consist of
the following operations: (i) the current version of the Initial
Programs and related files will be restored to disc from tape-
this consists of the productive code, data files, the input
specification to the operating system, utilities, a test data
base and generating installation files; (ii) this reference copy
of the Initial Programs is "frozen", that is, Modifications shall
not be made once (i) is complete; all future Product
Release/Version deliveries will be based on this reference
Initial Program copy; (iii) eFunds will modify the Initial
Programs as necessary to fit the local disc, operating system and
communications access methods environment; (iv) eFunds will bring
up the Initial Programs and will perform the, standard
installation tests; (v) in each event, the Client host will be
substituted for a simulator if Client has established the host
connection. When the tests have been successfully completed,
installation will be complete ("Installation").
B. Acceptance. After Installation, Client shall have thirty
(30) days to do whatever acceptance testing itchooses to
determine whether the Initial Program(s) function substantially
as described in theDocumentation. Failure to notify eFunds of a
problem in writing, or productive use by Client during such
thirty (30) day period, shall constitute Client acceptance of the
Initial Program(s) ("Acceptance"). In the event Client notifies
eFunds in writing during such period that the Initial Programs
are not functioning substantially as described in the
Documentation, and eFunds and Client agree within fifteen (15)
days of such notice that the Initial Programs are not functioning
substantially as described in the Documentation, then eFunds will
make such corrections as are necessary to put the Initial
Programs in operating order such that the Initial Programs will
function substantially as described in the Documentation and
Acceptance will be deemed to have occurred. In the event eFunds
and Client do not agree within forty-five (45) days of such
notice that the Initial Programs are functioning substantially as
described in the Documentation, then Client will return or
certify destruction of the Initial Programs, eFunds shall refund
all license fees paid, and this Agreement and all licenses
granted hereunder shall terminate.
C. eFunds Customizations. For any eFunds Customization
developed pursuant to subsection 3 d), eFunds and Client shall
agree, in writing, upon mutually acceptable installation and
acceptance criteria. At a minimum, the process/methodology set
forth in subsections 6 a) and 6 b) above shall be followed.
D. Documentation. eFunds will provide Client two (2) copies of
its Documentation for use with Initial Programs and other eFunds
Customizations.
7. Warranties.
A. General Warranty. eFuads warrants for a period of ninety
(90) days following Installation, that the Initial Programs and
other eFunds Customizations will perform substantially in
accordance with the specifications described in eFunds' current
Documentation, if properly used within the specified operating
environment. eFunds makes no warranty that the Initial Programs
or other eFunds Customiztions will run uninterrupted or will be
error free' During the warranty period, eFunds' sole obligation
shall be to correct any material errors or malfunctions necessary
to conform to the warranty at no additional charge to Client.
eFunds shall have no liability under this warranty unless Client
notifies eFunds in sufficient detail of any errors which Client
believes to be caused by a failure of the Initial Programs or
other eFunds Customization to function as warranted and provides
eFunds with any information which eFunds reasonably requests to
identify and correct the error. Notice shall be given by
forwarding a description of the error or malfunction to eFunds by
phone, followed by a written report. Client agrees to allow
eFunds the opportunity to make repeated efforts over a reasonable
period of time (not less than thirty (30) days) to correct any
error or malfunction.
B. Warranty Against Infringement. eFunds will hold harmless
and, at its own expense, defend any action brought against Client
based an a claim that a eFunds Product provided hereunder
infringes a United States copyright or United States patent,
provided that Client notifies eFunds promptly in writing of the
claim and eFunds is provided an opportunity to fully defend the
claim and/or agrees to any settlement of such claim. Should the
eFunds Products become, or in eFunds' opinion be likely to become
the subject of a claim of infringement of a copyright, patent, or
other United States proprietary right, eFunds may procure for
Client the right to continue using the eFunds Products as
contemplated by this Agreement or replace or modify them to make
them non-infringing, at no additional charge to Client. In the
event neither of the above is economically practical, Client may
receive a refund of a portion of the license fee paid, based upon
a five yew straight line depreciation from the date of
Installation. The above obligations as to infringement apply to
eFunds Customizations only if eFunds had actual knowledge of a
potential third party claim and failed to advise Client promptly
of such knowledge. eFunds shall have no obligation under this
provision for any claim based upon (i) the operation, combination
or use of eFunds Products with equipment, data or programs not
furnished by eFunds if such infringement could have been avoided
by the operation, combination or use of other equipment, data or
programs, (ii) any information or specifications supplied or
required by Client; (iii) Client Customization or Client's use of
any Source Code, or (iv) any Modification by any third party. The
foregoing states the entire liability of eFunds with respect to
infringement of any copyrights or patents or other proprietary
right by the eFunds Products or any part thereof.
C. Disclaimer Of Warranties. CLIENT ACKNOWLEDGES THAT IT HAS
INDEPENDENTLY EVALUATED THE INITIAL PROGRAMS AND OTHER EFUNDS
CUSTOMIZATIONS AND APPLICATION THEREOF TO ITS NEEDS, AND THAT,
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES,
EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOP, A
PARTICULAR PURPOSE, NON-INFRINGEMENT, FROM A COURSE OF DEALING OR
USAGE OF TRADE, OR ARISING OTHERWISE BY LAW. CLIENT FURTHER
ACKNOWLEDGES AND AGREES MT SOURCE CODE IS PROVIDED BY EFUNDS "AS
IS" AND THAT EFUNDS MAKES NO WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FROM A COURSE
OF DEALING OR USAGE OF TRADE, NON-INFRINGEMENT, OR OTHERWISE
ARISING BY LAW, WITH RESPECT TO SOURCE CODE, CLIENT
CUSTOMIZATIONS, OR CLIENT'S USE OF ANY OF THE FOREGOING, EFUNDS
ASSUMES NO RESPONSBILITY AND CLIENT EXPRESSLY ASSUMES ALL RISKS
IN ANY WAY RELATED THERETO. EFUNDS MAKES NO WARRANTY, EXPRESS OR
IMPLIED, AS TO THE PERFORMANCE OF ANY CLIENT CUSTOMIZATION OR
THAT ANY CLIENT CUSTOMIZATION WILL FUNCTION WITH EXISTING OR
FUTURE VERSIONS OR RELEASES OF ANY STANDARD PROGRAM AND CLIENT
ASSUMES ALL RESPONSIBILITY THEREFOR AND RISK THEREOF.
8. Maintenance. Subject to the provisions of this Section
8 and the timely and full payment of applicable fees, eFunds will
provide the maintenance and support services detailed in this
Section 8 ("Maintenance Services") for one productive copy of all
Initial Program(s) and those Customized Programs subsequently
agreed to by Client and eFunds for maintenance- Maintenance
Services shall be provided only to the Permanent Site.
A. Maintenance of Initial Programs. Subject to the timely and
full payment of the fees required hereunder and the conditions of
this Agreement, during the term of this Agreement, eFunds will
maintain the Initial Programs in accordance with the General
Warranty set forth in subsection 7 a) above, and as set forth in
this subsection 8 a), provided that Client is using Standard
Programs that are current to within one Product Release or
Version.
(i) Documentation. eFunds will supply applicable Documentation
as released by eFunds.
(ii) Fixes. eFunds will supply Client with all Fixes for
defects
reported by Client or where the Fix will lessen or correct a
serious defect. Fixes which are applicable to any Client are
accumulated and provided with the next Maintenance Update.
(iii) Maintenance Updates. eFunds will offer Client all
Maintenance Updates. The availability of Maintenance Updates is
announced periodically in eFunds technical bulletins, Maintenance
Updates are sent upon request at no additional charge to Client
(iv) Product Releases. eFunds will offer Client all Product
Releases. General availability of Product Releases and the
descriptions of new features and functions are announced
periodically, with an estimated availability announced
approximately three (3) months in advance. Product Releases
include development of a plan to migrate eFunds Products under
maintenance, coordination of plan activities, and testing prior
to delivery. Product Releases are sent upon request after general
availability and will be provided at no additional charge to
Client.
(v) Versions. eFunds will offer Client all Versions. Versions
may, in eFunds sole discretion, require payment of an additional
license fee.
(vi) If, as the result of Client making any changes to the
Source
Code of the eFunds Product(s), any new Release or Version of the
eFunds Products that eFunds supplies to Client am not compatible
with the operational version of the eFunds Products so modified,
eFunds shall have no obligation to provide support or any
Maintenance Service to Client in respect of the new Release or
Version.
B. Maintenance Delivery. All Fixes, Maintenance Updates,
Product Releases, and Versions provided hereunder shall be
delivered on magnetic tape by mail. Client may request additional
levels of delivery, including express mail delivery, delivery
through computer by computer access, or on-line terminal entry,
at eFunds' then current charges for such services.
C. Client Support. eFunds will provide a Client support center
during normal business hours (CST) to provide routine technical
support for eFunds Products under maintenance and a 24-hour,
7-day "hot line" to support significant problems wising outside
of normal business hours. Client agrees that when Client notifies
eFunds of an error or malfunction and eFunds determines that the
problem is due to other than eFunds' failure to maintain the
eFunds Products as required hereunder, any time expended by
eFunds to fix the problem shall be at eFunds' then current time
and materials rate.
(i) Account Managers. Each party shall assign an account
manager to act as a single point of contact to the other party
for all aspects of Maintenance Services. The respective account
manager's duties will include:
(a) acting as primary interface with the other party;
(b) managing service levels;
(c) monitoring Client's level of satisfaction with eFunds'
services and continuously evaluating potential improvements of
service quality; and
(d) coordinating the required modifications and associated
approvals to any changes in this Agreement to which the parties
may agree
(ii) Telephone Support Service. Telephone support service
includes Client having direct telephone access to the eFunds
software support center- The telephone number for such service is
▇-▇▇▇-▇▇▇-▇▇▇▇ or ▇▇▇-▇▇▇-▇▇▇▇, or as advised in writing from
time-to-time by eFunds.
(iii) Problem Resolution. Problems shall be dealt with in
accordance with the level of severitv determined by eFunds, as
further defined in Exhibit B attached hereto and incorporated
herein by reference.
D. Installation. Unless otherwise agreed in writing by the
parties, Client will be responsible for the installation of all
Fixes, Maintenance Updates, Versions, and Product Releases.
Client acknowledges that its failure to instill such items may
eventually make the Initial Programs unusable or nonconforming to
their specifications and Client assumes all risks of such use.
eFunds may provide installation services at Client's request, at
eFunds' then-current time and materials rates.
E. Maintenance of Other Customized Programs.
(i) if Client elects to have eFunds maintain eFunds
Customizations, eFunds will maintain eFunds Customizations so
that they operate in substantial conformity with the
Documentation, provided that Client has installed Standard
Programs that are current to within one Product Release or
Version. eFunds will supply Client with all Fixes as
expeditiously as is reasonably possible. in the event that Client
declines maintenance for eFunds Customizations, Client may
maintain such eFunds Customizations itself, however, Client
acknowledges that eFunds shall have no responsibility therefor
and Client assumes all risks of any consequence of eFunds not
providing maintenance for such eFunds Customizations.
(ii) With respect to Client Customizations, eFunds may, but
shall
have no obligation to, provide Maintenance Services therefor. For
any Client Customization, Client and eFunds must separately agree
in writing as to any maintenance that eFunds will provide with
respect thereto, including aIl terms and conditions thereof and
the annual maintenance fee to be paid by Client for such
services. A condition precedent to any obligation of eFunds to
provide maintenance for Client Customizations shall, be that
Client is using Standard Programs that art current to within one
Product Release or Version.
(iii) Migration of any Customized Program from Product
Release to Product Release or to a new Version will be done at
eFunds' current time and material rates.
(iv) eFunds shall not be required to provide maintenance to
anything other than a Standard Program or Initial Program. If
someone other than eFunds makes any Modification to a Standard
Program or Initial Program without the express written
authorization of eFunds, eFunds will continue to supply
Maintenance Services to the unmodified portion of the Standard
Programs or Initial Programs. Modification by anyone other than
eFunds and release of eFunds' obligations for maintenance shall
not relieve Client from its obligations to pay fees hereunder. At
eFunds' option and at Client's request, eFunds may provide
maintenance for such unauthorized changes at eFunds' then current
time and materials rates or as otherwise agreed upon.
F. Client Responsibilities. Failure by Client to install
Standard Programs that are current to within one Product Release
or Version shall relieve eFunds of its obligation to provide
Maintenance Services hereunder, but shall not relieve Client of
its obligations to pay full Maintenance Services fees hereunder.
G. Exclusions. Notwithstanding any other provision of this
Agreement, eFunds' obligation to provide maintenance and support
services under this Agreement does not cover maintenance
services, repair or replacement caused by (i) failure to provide
a suitable environment prescribed by eFunds; (ii) neglect,
accident disaster (including water, wind and lightening),
transportation or vandalism not attributable to eFunds; (iii)
alterations, applications, additions or Modifications to or for
the eFunds Products or Client Customizations which are not
provided or approved in writing by eFunds; (iv) host computers,
networks, telephone switches and other applications, attachments,
machines, software or accessories, and modification or additions
thereto, not provided by eFunds; (v) failure to use and operate
the eFunds Products in accordance with the Documentation
delivered to Client; (vi) requests for remedial maintenance from
any party other than Client-, or (vii) maintenance or repair not
performed by eFunds.
9. Proprietary Rights. All eFunds Products, Client
Customizations, Source Code, and any Modifications to any of the
foregoing, and all proprietary and intellectual property rights,
title and interest in and to all such eFunds Products, Client
Customizations Source Code and Modifications, is and shall be the
sole and exclusive property of eFunds. Client agrees that it
shall make no use whatsoever of any eFunds Product, Client
Customization, Source Code or Modification except as expressly
authorized in this Agreement.
A. If Client creates or develops any Modification, it shall be
considered a work made for hire by Client for eFunds and Cheat
hereby assigns, and upon creation of any Modification
automatically assigns, to eFunds, its successors and assigns,
ownership of all copyrights, patents, and other intellectual
property rights in and to each and every Modification, whether or
not any such Modification, by operation of law, may be considered
work made for hire by Client for eFunds. All Modifications
created by Client shall be considered Client Customizations for
all purposes of the Agreement. Cheat represents and warrants that
Client shall obtain from any individual making Modifications an
agreement sufficient for Client to comply with the terms and
conditions of Section 16 of this Agreement, and to obtain such
rights as am necessary to vest in eFunds the rights and ownership
in the Modifications as provided in this provision.
B. Client shall (i) ▇▇▇▇ any Modification with such copyright
or other proprietary notices as directed by eFunds, and (ii)
provide to eFunds such assistance as is reasonably necessary to
perfect or protect proprietary and intellectual property rights
to the Modifications.
C. Upon request of eFunds, but no less frequently than
semi-annually (whether or not requested by eFunds), Cheat shall
provide to eFunds at no cost to eFunds and at such location and
on media designated by eFunds all Source Code for any
Modifications made or created by or for Client. This provision
and the delivery by Client to eFunds hereunder does not change or
after eFunds' obligations with respect to Client Customizations
under this Agreement.
10. Cooperation. During the term of this Agreement, Client
shall assign at least one qualified staff member to work with
eFunds and shall make available additional appropriate personnel
as eFunds may reasonably request to answer questions and provide
information concerning Client's facility, operations and
requirements related to the installation, testing and maintenance
of eFunds Products and Client Customizations. Client shall have
the Site ready for installation, and allow eFunds appropriate
physical access to the computer systems and such data bases as
will be in communication with die eFunds Products and Client
Customizations.
11. Destruction of eFunds Property upon Termination.
Within thirty (30) days of termination of any license granted
hereunder or of this Agreement, Client will either certify to
eFunds in writing as to the destruction of the eFunds Products,
Client Customizations, eFunds' Confidential Information, and
Source Code, including all copies thereof or will return to
eFunds the eFunds Products, Client Customizations, eFunds'
Confidential Information, and Source Code, and all copies
thereof.
12. Compliance with Federal, State and Local Law. Except as set
forth in the Documentation, Client assumes all responsibility for
the eFunds Products provided hereunder, and Client
Customizations, being capable of allowing the Client to comply
with federal, state and local laws and regulations.
13. Termination of Agreement. This Agreement may be terminated
by Client or by eFunds only as set forth in this Section
A. Failure to Agree on eFunds Customizations Costs for
Initial Programs. In the event that (i) the cost to Client of
eFunds Customizations as presented in the FRD created by eFunds
pursuant to subsection 3 b) above, exclusive.of changes agreed
upon by the parties pursuant to subsection 3 d) above or other
changes or additions requested by Client that materially change
the PRA, exceeds the estimated cost set forth in Exhibit B by
more than twenty percent (20%), and (ii) either eFunds and Client
cannot work out a mutually acceptable fee for such eFunds
Customizations, or in the absence of such agreement eFunds is
unwilling to absorb the difference between the eFunds
Customization fee set forth in the PRA and the FRD, then either
party may terminate this Agreement upon ten (10) days written
notice to the other party.
B. Non-Acceptance of Initial Programs. In the event that
the Initial Programs are not accepted by Client pursuant to
subsection 6 b) of this Agreement, either party may terminate
this Agreement upon ten (10) days written notice to the other
party.
C. End of Term. With respect to Maintenance Services,
this Agreement may be terminated by either party by giving no
less than one hundred eighty (180) days prior written notice of
termination effective at the end of the Initial Term or any
Renewal Tem.\
D. Default. Either party may terminate this Agreement in its
entirety, including any and all licenses granted hereunder,
effective thirty (30) days after written notice is given upon the
occurrence of a material default by the other party, provided
that such default is not cured within thirty (30) days after
receipt of such notice of such default; except that with respect
to the default of the Client under section 4(b)(iv) or 4(b)(v) of
this Agreement, termination shall be effective ten (10) days
after written notice is given upon the occurrence of a material
default of section 4(b)(iv) or 4(b)(v), provided that such
default is not cured within ten (10) days after receipt of such
notice of default; and provided further that, with respect to the
default of the Client under section 4(b)(iv) or 4(b)(v) of this
Agreement termination may occur upon a second default immediately
upon the receipt of the second notice, without any additional
opportunity to cure.
E. Other Conditions. A party may terminate this Agreement in
its entirety, including any and all licenses granted hereunder,
immediately upon written notice in the event the other party:
(i) has failed to establish reasonable procedures for
protecting the other party's Confidential Information or has
intentionally disclosed the other party's Confidential
Information,
without permission;
(ii) makes a general assignment for the benefit of
creditors;
(iii) applies for the appointment of a trustee, liquidator or
receiver for its business or property, or one is assigned
involuntarily;
(iv) is subject to a proceeding for bankruptcy,
receivership, insolvency, dissolution or liquidation; or
(v) is adjudicated insolvent or bankrupt
14. Client's Remedies. eFunds and Client acknowledge that
circumstances could arise entitling Client to damages or
rescission arising from performance by eFunds of its obligations
hereunder or a failure by eFunds to perform its obligations and
have agreed in all such circumstances that Client's remedies and
eFunds' liabilities will be limited to those set forth in this
Agreement. Fox- material breach or default of this Agreement,
eFunds' sole obligation shall be to remedy the breach, IN ANY
ACTION BY CLIENT AGAINST EFUNDS ARISING FROM THE PERFORMANCE, OR
FAILURE OF PERFORMANCE OF EFUNDS' OBLIGATIONS UNDER - THIS
AGREEMENT, DAMAGES SHALL BE LIMITED SOLELY TO DIRECT MONEY
DAMAGES ACTUALLY INCURRED BY CLIENT AND DIRECTLY ATTRlBUTABLE TO
EFUNDS' PERFORMANCE OR FAILURE TO PERFORM, REGARDLESS OF THE FORM
OF ACTION AND WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR
OTHERWISE; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL SUCH DAMAGES
OR ANY RIGHT OF RECOVERY BY CLIENT EXCEED THE TOTAL MAINTENANCE
FEES PAID BY CLIENT TO EFUNDS UNDER THIS AGREEMENT FOR THE THREE
(3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH CLIENT'S CLAIM
AROSE. IN NO EVENT SHALL EFUNDS BE RES13ONSIBLE OR LIABLE FOR ANY
LOSS OF PROFITS, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT
DAMAGES OF ANY KIND OR NATURE. Client agrees that eFunds shall
have no duty of indemnity or contribution for a third party claim
arising from the use of the Products or eFunds' performance or
non-performance of any Processing Services hereunder.
Client acknowledges and agrees that the damage and liability
limitations set forth in this Section 14 are reasonable in light
of all present and reasonably foreseeable events and the possible
amount of actual damages to Client. The limitations set forth in
this Section 14 shall not apply to personal injury or tangible
property damage to the extent caused by the gross negligence or
willful misconduct of eFunds, or to eFunds' obligations under
Section 7(b) of this Agreement. The limitations set forth in this
Section 14 will survive termination of this Agreement
notwithstanding Customer election to rescind or otherwise be
discharged from this Agreement.
15. Client's Liability For Third Party Claims. Client agrees to
defend, indemnify and hold eFunds harmless from and against any
claim by a third party for any loss, cost damages, or expenses
(including reasonable attorneys' fees), including but not limited
to lost profits, direct incidental, consequential, special,
indirect or punitive damages arising out of or relating to Client
use of the eFunds Products, Client Customizations, or Source
Code. provided eFunds promptly notifies Client of any such claims
of which eFunds is aware and Client is provided an opportunity to
fully participate in the defense or settlement of any such
claims. Such indemnification by Client shall not apply to
personal injury or property damage to the extent caused by the
gross negligence of eFunds, or to eFunds' obligations with
respect to its warranty against infringement. EFunds may require
Client to provide reasonable and adequate security with respect
to any claim or potential third party claim arising out of or
related to in tiny way any unlawful or allegedly unlawful
transactions undertaken using or relying in any way upon any
eFunds Product .
16. Confidentiality Obligations. Each party agrees that (a)
during the course of its performance of this Agreement it may
learn or be exposed to certain of the other party's Confidential
Information; (b) the Confidential Information of the other shall
remain the property of the other, and that such Confidential
Information is made available on a limited use basis solely in
connection with this Agreement; (c) it will advise its employees
and independent contractors to whom the information is disclosed
of their obligations under this Agreement; (d) it will not sell,
disclose or otherwise make available any such Confidential
Information, in whole or in part, to any third party other than
its independent contractors under appropriate written
confidentiality agreements without the prior written consent of
the other party, or use Confidential Information for any purpose
other than as expressly authorized by this Agreement; and (e) it
will utilize the same degree of care it utilizes for its own
Confidential Information, but in no case less than a reasonable
degree of care, to prevent disclosure of such Confidential
Information to any unauthorized person or entity. Upon
termination of this Agreement all copies of Confidential
Information shall be returned. The restrictions under this
Section shall not apply to information which: (i) is or becomes
publicly known through no wrongful act of the party receiving the
Confidential Information; or (ii) becomes known to a party
without confidential or proprietary restriction from a source
other than the disclosing party-, or (iii) a party can show by
written records was in its possession prior to disclosure by the
other party; or (iv) was independently developed by it without
use of or reference to the Confidential Information of the other
party. In the event a party is legally compelled to disclose
Confidential Information of the other party, it will be entitled
to do so provided it gives the other party prompt notice and
assists the other party, at the other party's expense, in
obtaining a protective order.
17. Escrow. In the event eFunds does not provide Source
Code to Client for any Standard Program or eFunds Customization,
upon Client's request and at Client's expense, eFunds will
deposit with a third party software escrow agent in the United
States such Source Code and related materials sufficient to
enable a reasonably skilled programmer or analyst to maintain and
enhance the Program(s) licensed hereunder ("Escrow Deposit"). The
Escrow Deposit will be made available to Client in accordance
with the terms and conditions of a mutually agreed upon escrow
agreement in the event eFunds or a suitable third party (i) no
longer makes available maintenance support for the Escrow Deposit
and the Escrow Deposit is within one Product Release or Version
of eFunds' currently licensed Standard Program; (ii) has become
insolvent or bankrupt or (iii) fails to remedy a material breach
of its obligations as set forth in this Agreement after proper
notice and reasonable opportunity to cure (no less than thirty
(30) days).
18. Year 2000 Compliance Statement. eFunds will ensure that
eFunds Products are Century Compliant for the year 2000. "Century
Compliant" means that the eFunds Products shall be capable of
accounting for all calculations using a century/date sensitive
algorithm for the 201 and 2 1 st century in performing the
functions described in eFunds' current Documentation, if properly
used within the specified operating environment. The eFunds
Products will recognize the rollover to year 2000 and the fact
that the year 2000 is a leap year. eFunds' sole obligation under
Us provision shall be to correct any material errors or
malfunctions necessary to make the eFunds Products Century
Compliant, at no additional charge to Client. eFunds shall not be
required to render Century Compliant any Client unique software,
custom code, or other product that eFunds has identified as being
non-standard. eFunds shall not be required to provide Century
Compliant support to any customer which is not current in all
payments overall to eFunds. Client is responsible for notifying
its vendors and having its vendors' code modified to eFunds'
format. eFunds shall not be required to provide Century Compliant
modifications for (a) software for which Client rightfully has
source code and which is not under maintenance with eFunds; or
(b) software owned by Client or licensed by Client from a third
party. EFunds shall not be liable for any Century Compliant
failure if such failure was caused by Client or third party
hardware, software, or interfaces to the processing software.
This statement is a reflection of eFunds' intention to provide a
cost free customer service to customers under specified terms and
conditions. This statement is not a representation or warranty by
eFunds with respect to any eFunds Products or other software.
19. General Provisions.
A. Notices. All notices provided for by this Agreement shall
be in writing and shall be by registered or certified mail,
addressed to the President at the address set forth in this
Agreement or in accordance with the last written instructions
received from such party concerning the Person and address for
such notices, and shall be effective upon receipt,
B. Assignment. Neither party shall have the right to assign
this Agreement without the prior written consent of the other,
which consent shall not be unreasonably withheld, except that
eFunds may assign this Agreement to Deluxe Corporation, any of
Deluxe Corporation's majority owned or controlled subsidiaries,
or a successor in interest to eFunds, provided that eFunds gives
Customer written notice of such assignment. The covenants and
conditions contained in this Agreement shall apply to and bind
the successors and permitted assigns of the ponies hereto.
C. Severability. If any provision of the Agreement shall be
held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remainder of this Agreement
shall not in any way be affected.
D. Further Assurances. Each party shall upon request provide
such further assurances and undertake such further acts or things
as may be reasonably necessary or appropriate to effectuate the
terms of this Agreement.
E. Force Majeure. Neither party shall be considered in default
in performance of its obligations should their execution be
delayed by any act or cause which is beyond the reasonable
control and without the fault or negligence of the party claiming
the delay. Notwithstanding the foregoing, if Client is prohibited
from making any payments hereunder by any authority having
jurisdiction, eFunds may terminate this Agreement in its entirety
immediately.
F. Waiver. The failure of either parry to enforce at anytime
any provision of this Agreement or to exercise any right herein
provided, shall not in any way be construed to be a waiver of
such provision or right, and shall not in anyway affect the
validity of this Agreement or any part hereof, or limit, prevent
or impair the right of either party to subsequently enforce any
provision or exercise any right hereunder.
G. Survival. Expiration or termination of this Agreement by
either party shall not relieve either party from any obligation
accrued through the date of termination. In addition, the terms
and conditions set forth in this Agreement which by their nature
and sense continue beyond termination of this Agreement including
by way of illustration only and not limitation, Sections 1, 4, 7,
9, 11, 14, 15, 16, and 18 of this Agreement, shall survive any
termination or expiration of this Agreement.
H. Status. Neither party shall be deemed the agent, partner,
or co-venturer of the other by reason of this Agreement or
Client's use of the eFunds Products, Client Customizations, or
Source Code.
I. Governing Law. This Agreement shall be governed by the Jaws
of the State of Wisconsin, without regard to conflicts of law
provisions.
J. Export Restriction. Regardless of any disclosure made by
Client to eFunds of an ultimate destination of any eFunds
Products, Client Customization or Source Code, Client will not
export and/or re-export, either directly or indirectly, any
eFunds Product, Client Customization, Source Code or any other
technology obtained from eFunds without first obtaining, at the
Client's expense, an export/re-export license from the United
States government, as required. In no event shall Client export
or re-export any of the foregoing to any country, individual,
end-user at end-use prohibited under U.S. Department of Commerce
or U.S. Department of Treasury Regulations. Client expressly
acknowledges and agrees that eFunds' obligations under this
Agreement are dependent and contingent upon eFunds' ability to
obtain any required U.S. export or re-export license or other
authorization.
K. Taxes. Any taxes based upon this Agreement or the services
or products provided, except upon income of eFunds, shall be paid
by Client eFunds shall be entitled to receive 100% of payments
due to it hereunder. In the event any taxing authority withholds
or intercepts any amount due to eFunds; hereunder, Client shall
pay to eFunds on demand the Ml amount of such withholding or
intercepted payment.
L. Construction. Unless explicitly stated otherwise, for any
event which calls for either party to exercise its judgment, give
its consent or perform an obligation, a standard of
reasonableness shall apply. This Agreement shall not be
construed more favorably toward either party regardless of which
party is more responsible for drafting it.
M. Changes. Any modifications or additions to this Agreement,
the eFunds Products, or services requested by Client and agreed
to by eFunds: will be documented in writing signed by both
parties and will be governed by this Agreement unless otherwise
specifically agreed.
N. Payments. Client shall pay eFunds such amounts as are
specified in Exhibit A, as well as such amounts as are
subsequently agreed upon by the parties. Unless specified
otherwise, 4 amounts are due when the service has been completed
or eFunds Product provided. Annual fees will be invoiced and paid
in advance. Amounts outstanding after the due date are subject to
an interest charge to date of payment of the lesser of 18% per
annum or the highest legally allowable rate. eFunds may adjust
its fees annually, effective January 1, upon at least sixty (60)
days written notice; provided no such increase, except with
respect to rates for professional services, shall exceed 10%.
O. Dispute Resolution. The parties shall agree upon a
reasonable dispute resolution process and will endeavor in good
faith to resolve any dispute or controversy arising under this
Agreement in a mutually acceptable manner. Any dispute or matter
arising out of or connected with this Agreement that cannot be
resolved by such process way be referred to Arbitration in
Milwaukee, Wisconsin by either party under the rules and
regulations of the American Arbitration Association ("AAA")
applicable to computer and technology disputes before a single
arbitrator. The said arbitrator shall be appointed by agreement
between the parties or, in default of such agreement, by the AAA,
and the arbitrator's final ruling shall be enforceable in any
court having jurisdiction. Notwithstanding the foregoing, in no
event shall any dispute as to ownership or infringement of
Confidential Information or intellectual property rights-be
subject to this provision.
P. Non-Hire Covenant. Each party covenants with the other that
it shall not hire or solicit, for itself or any other person or
entity, directly or indirectly, any person who was employed or
engaged as a consultant of the other within two (2) years of the
date such person terminates his/her employment or consultant
status with the other ▇▇▇▇▇.
Q. Inspection; Audit. Client shall maintain such books and
records as are necessary to demonstrate Client's compliance with
its obligations under this Agreement and to verify that Client
has paid eFunds all license, maintenance and other service fees
in accordance with this Agreement. eFunds or eFunds' auditors
shall, upon reasonable notice have the right to inspect and audit
those books, records, systems and operations of Client as
necessary for eFunds to ascertain the correctness of fees due and
paid/payable to eFunds hereunder, and for eFunds to ascertain
compliance by Client with its obligations under this Agreement.
If any audit reveals underpayment by Client, Client shall
immediately rectify same, subject to subsection 18 n) above. If
any underpayment is five percent (5%) or greater of amounts due,
Client shall bear eFunds' expenses associated with such audit.
R. Entire Agreement. This Agreement constitutes the
entire agreement of the parties with respect to the subject
matter hereof and supersedes all existing agreements and all
other communications, written or oral. This Agreement way not be
released, discharged or modified in any manner except in writing
signed by both parties. No purchase order or other form of the
Client will modify, supersede, add to or in any way vary the
terms of this Agreement. Any acknowledgment by an employee of
eFunds of such a Client form shall be solely for informational
purposes.
ECONNECT EFUNDS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(Please print or type) (Please print or type)
Title: Chairman & CEO Title: Chief Financial
Officer
EXHIBIT A
I. STANDARD PROGRAM LICENSE FEES
CONNEX STANDARD PRODUCTS LICENSE FEES
Foundation $200,000
TCP/IP HCH 20,000
VTAM HCH 10,000
Deluxe 8583 ISO PI 50,000
System Health Monitor 50,000
Connex Notification System 50,000
CrossCheck 45,000
FTI 15,000
Settle Daily Prep 25,000
Settle Daily Report 25,000
Fee Billing 20,000
Binload 15,000
Authorization Services N/C
License Fee $525,000
SOURCE CODE WILL NOT BE PROVIDED FOR THE FOLLOWING
CXBOMD FOUNDATION MODULES:
CXBPMD01, CXBPMD02, CXDPMD03,
CXBPMD04, CXBPMD05, CXBPMD06,
CXBPMD07, CXBPMD08, CXBPMD09,
CXBPMD10, CXBPMD13
II. Professional Services Package $150,840
Professional Services Included in this Agreement
As defined in the PRA dated January 19, 2000
Final Requirements Definition (FRD)
Non refundable fee $75,420
Development of eFunds Customization(s) per FRD
III. Payment Schedule
A. License Fee
$105,000
(20% of List price due upon signing Agreement)
Paid at Signing of Letter of Intent and Nonrefundable
Total Present Value of License Fee
$525,813
Balance of License fee invoiced in 36 monthly installments of
$14,600 with the first installment to be due and payable upon
execution of Agreement.
Third Party Royalty Fee Monthly Transaction Volume*
Fee**
1- 1,000,000
$0.0100
1- 2,000,000
$0.0090
1- 5,000,000
$0.0085
1- 10,000,000
$0.0075
1- 20,000,000
$0.0065
1- 40,000,000
$0.0055
1- 60,000,000
$0.0045
1- 80,000,000
$0.0035
* Drop Through Pricing
** Royalty fees billed monthly in arrears and due net
net thirty (30) days of invoice.
B. Professional Services
50% or $75,420 due upon execution of Agreement. $150,840
balance of $75,420 shall be invoiced in arrears as work is
completed
Quotes are subject to change upon completion of Functional
Requirement Definition (FRD).
Quotes based on the PRA dated January 19, 2000 is guaranteed
within twenty percent (20%) assuming the same scope of the final
quote at the completion of the FRD.
In the event quote exceeds twenty percent (20%) ($30,168 US
Dollars) both parties shall have the option to:
Accept the new price
Negotiate a mutually acceptable new price
Terminate the Agreement
IV. Annual Maintenance Fees
Maintenance shall be invoiced and paid annually in the amount of
$89,250
V. MAINTENANCE FEES
Annual maintenance fees for the Standard Programs/modules listed
above shall be 17% of the eFunds Standard Program license fee
(before any applicable discount is applied), invoiced and payable
monthly along with payment for license fees based on monthly
transactions- For any eFunds Customization maintained by eFunds
for Client; the annual maintenance fee for eFunds
Customization(s)
shall be 20% of The custornization fees charged by eFunds to
Client,
invoiced and payable monthly along with payment for license fees
based on monthly transactions. Maintenance services and
associated
annual fees for any Client Customization must be separately
agreed upon in
writing by eFunds and Client
VI. ADDITIONAL PROFESSIONAL SERVICES/MATERIALS:
Professional Services, including but not limited to Requirements
Review, Project Management Customization, Installation, Switch
Preparation and Conversion:
Hourly rates:
Testing Analyst $160.00
Analyst $170.00
Consultant $195.00
Senior Consultant $225.00
Principal Consultant QUOTE
Terms:
At eFunds offices, hours billed will be only those actual hours
logged to a Client specific task. At Client designated
facilities, hours billed will be the actual hours logged at the
Client designated facilities, plus travel time with a minimum of
four (4) hours per day. Fees are payable 50% of estimated cost on
order, balance an shipment of code or completion of services.
Materials
All materials are charged at cost, payable when invoiced,
Materials include but are not limited to: travel, lodging, meals,
and shipping. eFunds Products are shipped FOB eFunds, Glendale,
Wisconsin.
EXHIBIT B
ISSUE RESOLUTION SEVERITY GUIDELINES
An incident is assessed a severity level of one (high) to five
(low) depending on the impact it has on Client's business.
Magnitude, frequency, and type of incident are considered in
assigning a severity level. The eFunds' Software Support Center
analyst may feel the incident should have either a higher or
lower severity. It is important that Client and the analyst
mutually agree on the assigned severity so the appropriate
resources can be allocated to investigate and resolve the
incident. However, the final decision on the incident's severity
level is made by eFunds.
In general terms the severity levels art defined as follows:
Severity Level I means that a major system segment is
out-of-service, an essential system function has been lost, the
system is experiencing major operational difficulties, or the
financial (or transaction servicing) integrity of the system is
being seriously compromised. When a Severity Level I incident is
reported, eFunds and Client agree to provide immediate and
continuous attention (meaning 24 X 7 work by both parties) to the
incident until it is resolved or the severity level can be
lowered.
Severity Level 2 means that the system has suffered some
significant (but not essential) functional loss, the system is
experiencing significant operational difficulties, or the system
is experiencing occasional financial (or transaction servicing)
integrity problems. When a Severity Level 2 incident is reported,
eFunds agrees to start work on the incident within one (1)
business day of notification of the incident and complete the
work, or lower the severity level of the incident within seven
(7) business days.
Severity Level 3 means that the system is performing normally,
but a functional or operational problem that requires correction
is being experienced. When a Severity Level 3 incident is
reported, eFunds agrees to start work on the incident within
seven (7) business days of notification of the incident and
complete the work, or lower the severity level of the incident
within thirty (30) business days.
Severity Level 4 means that the system is performing normally,
but a functional or operational irritant or inconvenience is
being experience& When a Severity Level 4 incident is reported,
eFunds agrees to start work on the incident within twenty-one (2
1) days of notification of the incident and complete the work, or
lower the severity level of the incident within ninety (90)
business days.
Severity Level 5 means that the system is performing normally,
but either a cosmetic irritant or inconvenience is being
experienced, or a point of information is to be made. When a
Severity Level 5 incident is reported, eFunds agrees to start
work an the incident within ninety (90) days of notification of
the incident and complete the work within one hundred and eighty
(ISO) days.