Bill Payment Services Reseller Agreement - Digital Insight Corp. and Metavante Corp.
BILL PAYMENT SERVICES RESELLER AGREEMENT***
THIS AGREEMENT is made this 28th day of February, 2001, (the "Effective Date")
by and between Digital Insight Corporation ("Reseller" or "Digital Insight")
and Metavante Corporation ("Metavante").
RECITALS:
WHEREAS, Metavante by itself or through its subcontractor(s), offers a system
which enables consumers and small business customers of financial institutions
to initiate bill payment services from a telephone, personal computer, internet
enabled television, or other access device (the "Bill Payment Services"); and
WHEREAS, Reseller provides internet banking support services to financial
institutions and desires to offer the Bill Payment Services to financial
institutions which contract with Reseller for such internet banking services.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, the parties, intending legally to be bound,
mutually agree as follows:
1. DEFINITIONS. As used in this Agreement, the defined terms shall have the
respective meanings as set forth on Schedule 1.
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2. BUSINESS RELATIONSHIP.
2.1. Initial Term. This Agreement shall commence on the Effective Date
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and end on the fourth (4th) anniversary of the last day of the month in which
the Effective Date occurs (the "Initial Term"). This Agreement shall annually
renew for additional Terms of one (1) year unless written notice of termination
is provided to the other party within ninety (90) days of the expiration of any
Term.
2.2. Performance of Bill Payment Services.
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A. By Metavante Affiliates or Subcontractors. Reseller understands
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and agrees that the actual performance of the Bill Payment Services may be made
by the divisions or subsidiaries of Metavante Corporation, Affiliates of
Metavante Corporation, or subcontractors of any of the foregoing Entities
(collectively, the "Eligible Providers"). For purposes of this Agreement,
performance of the Bill Payment Services by any Eligible Provider shall be
deemed performance by Metavante Corporation itself. Metavante shall remain fully
responsible for the performance or non-performance of each Eligible Provider
under this Agreement, to the same extent if Metavante itself performed or failed
to perform such services. Reseller agrees to look solely to Metavante, and not
to any Eligible Provider, for satisfaction of any claims Reseller may have
arising out of this Agreement or the performance or nonperformance of Services.
B. Right to Perform Services in Most Efficient Manner. Reseller
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understands and agrees that, in providing Bill Payment Services for Reseller
hereunder, Metavante may use the most effective or efficient means deemed
reasonable or necessary by Metavante in its sole discretion, provided that the
foregoing shall not affect Metavante's obligation to provide the Bill Payment
Services in accordance with the Performance Warranty or other terms of this
Agreement. For example, Metavante has the right to consolidate and remit all
payments for a particular payee to that payee's central payment processing
center rather than remitting any User's payment to a different address of the
payee designated by the User.
C. Payee Contacts. Reseller authorizes and directs Metavante to
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contact payees with respect to disputes or issues regarding payments processed
by or for Reseller or Users through the Bill Payment System.
2.3. General. Beginning on the Effective Date and continuing for as long
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as this Agreement remains in effect, Metavante grants to Reseller and its
Affiliates a non-exclusive, non-assignable, non-transferable right to market the
Bill Payment Services directly to Customers, and Reseller agrees to offer the
Bill Payment Services to Customers. Reseller agrees that it is responsible for
assuring compliance with this Agreement by those Affiliates reselling Bill
Payment Services under this Agreement, and the term "Customer" shall be deemed
to include financial institutions signing agreements with Reseller's Affiliates
for the Bill Payment Services. Reseller agrees to pay any and all fees owed
under this Agreement for Bill Payment Services rendered for its Affiliates.
2.4. Metavante's Responsibilities.
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A. Metavante shall maintain and operate the Bill Payment Services and
the Bill Payment System as described in Schedule 3 hereto. Metavante
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will limit its communications with Customers and Users to those
necessary and appropriate for delivery of the Bill Payment Services.
2.5. Reseller's Responsibilities
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A. Customer Agreements. Reseller shall enter into agreements with
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Customers using such form of agreement as is developed by Reseller in its sole
discretion including such terms and pricing as Reseller shall establish in its
sole discretion. Reseller acknowledges that
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*** CONFIDENTIAL TREATMENT REQUESTED. Portions of this Exhibit have been omitted
based on a request for confidential treatment. These portions have been filed
separately with the Commission.
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Metavante has provided Reseller with a list of Customer obligations in Exhibit A
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hereto and that Reseller shall be directly responsible to Metavante for each
Customer's performance of, or failure to perform, such obligations. Reseller
shall be solely responsible to each Customer and User for the Bill Payment
Services.
B. Fees and Charges. Prior to July 1, 2001, Reseller shall pay fees
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to Metavante as set forth in that agreement between Reseller and MoneyLine
Express, Inc., predecessor in interest to Metavante, which fees are hereby
incorporated herein by reference. Beginning on July 1, 2001, and monthly
thereafter, Reseller shall pay fees and charges to Metavante for the Bill
Payment Services, without offset other than as expressly permitted herein, in
accordance with the Fee Schedule set forth on Schedule 4. Usage of the Bill
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Payment Services shall be recorded by the Bill Payment System or by any other
means used by Metavante to determine Reseller's usage of the Bill Payment
Services. Monthly fees based upon Reseller's Billable Accounts shall be assessed
regardless of whether a Billable Account was used to initiate payments through
the Bill Payment System that month. Each Contract Year, Reseller agrees to pay
Metavante total User Fees at least equal to the Minimum Annual Commitment set
forth in Schedule 4, and shall pay Metavante any shortfall within thirty (30)
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days of Metavante's invoice. New functionalities shall be utilized at Reseller's
option and shall be priced as and when such functionalities become available.
Reseller understands and agrees that Metavante may increase the fees and charges
as described in Schedule 4. If Reseller disputes any charge or amount on any
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invoice and such dispute cannot be resolved promptly through good faith
discussions between the parties, Reseller shall pay the amounts due under this
Agreement less the disputed amount, and the parties shall diligently proceed to
resolve such disputed amount. An amount will be considered disputed in good
faith if (i) Reseller delivers a written statement to Metavante on or before the
due date of the invoice, describing in detail the basis of the dispute and the
amount being withheld by Reseller, (ii) such written statement represents that
the amount in dispute has been determined after due investigation of the facts
and that such disputed amount has been determined in good faith, and (iii) all
other amounts due from Customer that are not in dispute have been paid in
accordance with the terms of this Agreement.
C. Taxes. As between Reseller and Metavante, Reseller shall be
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responsible for any and all taxes payable as a result of or in connection with
providing the Bill Payment Services for Reseller or Users, except for those
taxes based on the net income of Metavante. On Reseller's request, Metavante
shall reasonably cooperate with Reseller in contesting the validity or
imposition of any such taxes which are the responsibility of Reseller hereunder
with the appropriate taxing authority, at Reseller's sole cost and expense.
D. Terms of Payment.
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(1) All "one time" start up fees shown on Schedule 4 shall be
paid by Reseller directly to Metavante .
(2) Metavante will monthly invoice Reseller for fees shown on
Schedule 4 that were incurred during the preceding month.
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(3) Subject to Metavante's compliance of Section 2.5D(4) below,
to effect payment of any and all amounts due and payable by
Reseller to Metavante hereunder, Reseller hereby authorizes
Metavante, upon Reseller's failure to pay in full any
undisputed amount within thirty (30) days of Metavante's
invoice therefor, to initiate debit entries from, and, if
necessary, initiate credit entries to, Reseller's account at
the depository institution designated in the ACH
Authorization Agreement attached hereto as Schedule 2, which
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shall be executed by Reseller contemporaneously with the
execution of this Agreement. Reseller shall also pay any
collection fees (including reasonable attorneys' fees)
incurred by Metavante in collecting payment of the charges
and any other amounts for which Reseller is liable under
this Agreement. If Reseller fails to pay any amounts due
under this Agreement, Reseller shall, upon demand, pay
interest at the rate of 1.5% per month (but in no event
higher than the highest interest rate permitted by law) on
such delinquent amounts from their due date until the date
of payment.
(4) In addition to any other reports required hereunder,
Metavante shall provide to Reseller a report with each
monthly invoice containing information regarding usage of
the Bill Payment Services by Users during the preceding
month as shall be mutually agreed by the parties. To the
extent reasonably practical, such reports shall be provided
to Reseller in an electronic form that may be decoded in an
automated manner for import into Reseller's statistical
database.
E. No Warranties. Reseller is expressly prohibited from extending
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any warranty or warranties on behalf of Metavante or its subcontractors to any
party.
F. Front End Software. Reseller will develop applications and
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server software, as necessary and in accordance with Metavante's specifications,
to interface with the Electronic Bill Payment System and transmit End Users'
bill payment instructions to Metavante. The front end applications of Reseller
must be tested and certified satisfactory by Metavante before being used by
Reseller to interface with the Bill Payment System. In the event that Reseller
makes modifications to the interface between Reseller's applications and
Metavante's Bill Payment System, Reseller must re-test and re-certify the
applications with Metavante. Metavante shall provide Reseller with notice of any
material changes to specifications for interfacing with Metavante's Bill Payment
System. Reseller shall modify its interface as necessary to comply with such
specifications and shall re-test and re-certify the modified interface with
Metavante. Metavante shall not be responsible for any nonperformance of the Bill
Payment Services or failure of the Bill Payment System in the event that
Reseller shall fail to obtain Metavante's certification of Reseller's front end
applications or any modifications thereto. Metavante will provide Reseller with
up to one-hundred (100) hours of technical support during each one (1) year
period following the Effective Date, including technical consulting and other
assistance as may be reasonably requested by Reseller for development, testing,
certification, operation, maintenance, improvement and expansion of the
Reseller's interface to the Metavante System. Any Technical Support in excess of
such annual amount shall be provided at Metavante's then standard rates for such
services. As part of its technical support, Metavante shall (i) provide Reseller
with a test environment (including, without limitation,
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any hardware or software) as necessary for the testing of the Reseller's
interface to the Metavante System and (ii) provide certification of the Digital
Insight interface following each testing or upon the reasonable request of
Reseller.
G. Customer Communications. Reseller shall not issue any
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statements, correspondence or communications to Customers which reference
Metavante or Metavante's performance of the Bill Payment Services without
Metavante's prior written approval. Metavante shall not issue any statements,
correspondence or communications to Customers which reference Reseller or
Reseller's performance of its services without Reseller's prior written
approval. Notwithstanding the foregoing, neither party shall be prohibited from
repeating or re-using statements, correspondence, or communications which were
previously approved in writing by the other party, or from using or distributing
materials prepared or approved by the other party, unless and until such other
party shall revoke such approval in writing.
2.6. Responsibility for Bill Payments.
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Metavante shall initiate a charge against the Settlement Account
for bill payment activities initiated by Users as described in Schedule 6
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hereto. Reseller and/or Metavante's respective responsibility for bill payments
initiated by Users will be as described in Schedule 6 hereto.
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3. AUTHORITY.
3.1. Metavante warrants to Reseller as follows:
A. Reseller Service Marks and Trademarks. Metavante shall not
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use any of Reseller's or any Customer's service marks and trademarks except for
the purpose of identifying the Bill Payment Services to Users.
B. Ownership. Metavante has the right to offer the Bill Payment
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Services to Reseller as provided herein; the Metavante Software does not violate
any patent, copyright, trademark or other proprietary right or interest of any
Third Party under United States law
C. Compliance. Metavante shall conduct the operation of its
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business in accordance with all applicable federal and state laws and
regulations.
3.2. Reseller warrants to Metavante as follows: It is a corporation
validly existing and in good standing under the laws of the state of its
incorporation. It has all the requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement, the
execution, delivery and performance of this Agreement has been duly authorized
by Reseller and this Agreement is enforceable in accordance with its terms
against Reseller. No approval, authorization or consent of any governmental or
regulatory authorities is required to be obtained or made by Reseller in order
for Reseller to enter into and perform its obligations under this Agreement.
Reseller has all right and authority to use any and all trademarks, trade names,
service marks, domain names, logos or other marks provided to Metavante for use
in connection with the Bill Payment Services. Reseller shall conduct the
operation of its business in accordance with all applicable federal and state
laws and regulations.
4. Confidentiality and Security.
4.1. User Data. Customers shall remain the sole and exclusive owner of
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all User Data, regardless of whether such data is maintained on magnetic tape,
magnetic disk, or any other storage or processing device.
4.2. Systems. It is the intent and the desire of the parties to
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maintain separate technologies. Reseller acknowledges that it has no rights in
any software, systems, documentation, guidelines, procedures and similar related
materials or any modifications thereof provided or used by Metavante, except
with respect to Reseller's use of the same during the Term pursuant to this
Agreement. Metavante acknowledges that it has no rights in any software,
systems, documentation, guidelines, procedures and similar related materials or
any modifications thereof provided or used by Reseller, except with respect to
the Bill Payment System and other software, systems, documentation, guidelines,
procedures and similar related materials or any modifications thereof provided
by Metavante to Reseller during the Term of this Agreement.
4.3. Confidential Information. "Confidential Information" of a party
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shall mean all confidential or proprietary information and documentation of such
party, whether or not marked as such including, with respect to Customers, all
User Data. Confidential Information shall not include: (i) information which is
or becomes publicly available (other than by the party having the obligation of
confidentiality) without breach of this Agreement; (ii) information
independently developed by the receiving party; (iii) information received from
a Third Party not under a confidentiality obligation to the disclosing party; or
(iv) information already in the possession of the receiving party without
obligation of confidence at the time first disclosed by the disclosing party.
The parties acknowledge and agree that the substance of the negotiations of this
Agreement, and the terms of this Agreement are considered Confidential
Information subject to the restrictions contained herein.
4.4. Obligations of the Parties. Neither party shall use, copy, sell,
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transfer, publish, disclose, display, or otherwise make any of the other party's
Confidential Information available to any Third Party without the prior written
consent of the other party. Each party shall hold the Confidential Information
of the other party in confidence and shall not disclose or use such Confidential
Information other than for the purposes contemplated by this Agreement and, to
the extent that Confidential Information of Reseller may be subject to the
Privacy Regulations, as permitted by the Privacy Regulations, and shall instruct
their employees, agents, and contractors to use the same care and discretion
with respect to the Confidential Information of the other party or of any Third
Party utilized hereunder that Metavante and Reseller each require with respect
to their own most confidential information, but in no event less than a
reasonable standard of care, including the utilization of security devices or
procedures designed to prevent unauthorized access to such materials. Each
party shall instruct its employees, agents, and contractors of its
confidentiality obligations hereunder and not to attempt to circumvent any such
security procedures and devices. Each party's obligation under the preceding
sentence may be satisfied by the use of its standard form of confidentiality
agreement, if the same reasonably
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accomplishes the purposes here intended. All such Confidential Information shall
be distributed only to persons having a need to know such information to perform
their duties in conjunction with this Agreement.
4.5. Information Security. Metavante shall be responsible for
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establishing and maintaining an information security program that is designed to
(i) ensure the security and confidentiality of User Data, (ii) protect against
any anticipated threats or hazards to the security or integrity of User Data,
and (iii) protect against unauthorized access to or use of User Data that could
result in substantial harm or inconvenience to Reseller, Customers or any of
their Users.
4.6. The Privacy Regulations. In the event that Reseller requests
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Metavante to disclose to any Third Party or to use any of Reseller's or any
Customer's Confidential Information, and such Confidential Information is or may
be subject to the Privacy Regulations, Metavante reserves the right, prior to
such disclosure or use, (i) to review any initial, annual, opt-out, or other
privacy notice that Reseller or the Customer issued with respect to such
Confidential Information pursuant to the Privacy Regulations, and if requested
by Metavante, Reseller shall promptly provide Metavante with any such notice,
and (ii) to decline to disclose to such Third Party or to use such Confidential
Information if Metavante, in Metavante's sole discretion, believes that such
disclosure or use is or may be prohibited by the Privacy Regulations or by any
such notice.
5. PERFORMANCE WARRANTY/EXCLUSIVE REMEDY/DISCLAIMER OF ALL OTHER WARRANTIES
5.1. Performance Warranty. Metavante warrants that it will provide the
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Bill Payment Services covered by this Agreement in accordance with the Service
Level Agreements and, where such Service Level Agreements are not applicable, in
a commercially reasonable manner (the "Performance Warranty"). Metavante shall
use commercially reasonable efforts to achieve the Service Level Objectives, but
failure to meet such Service Level Objectives shall not constitute breach of the
Performance Warranty. THIS PERFORMANCE WARRANTY IS SUBJECT TO THE WARRANTY
EXCLUSIONS SET FORTH BELOW IN SECTION 5.2 AND THE REMEDY LIMITATIONS SET FORTH
BELOW IN SECTION 5.3.
5.2. Performance Warranty Exclusions. Except as may be expressly agreed
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in writing by Metavante, Metavante's Performance Warranty does not apply to:
A. defects, problems, or failures caused by the Reseller's
nonperformance of obligations essential to Metavante's performance of its
obligations; and/or
B. defects, problems, or failures caused by an event of Force
Majeure.
5.3. Notice of and Correction of Defects. Reseller shall notify
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Metavante in writing of any alleged breach of this Performance Warranty. If the
breach relates to a Service Level Agreement, Metavante shall have ninety (90)
days to correct the alleged breach and shall provide Service Level Credits to
Reseller in accordance with Schedule 5 hereof, as liquidated damages and not as
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a penalty. For all other breaches of the Performance Warranty, Metavante shall
have thirty (30) days to correct the alleged breach. During this time period,
Metavante shall use efforts commercially reasonable in relation to the severity
of the breach, at its own expense, to remedy the breach. Reseller shall be
responsible for making whatever appropriate adjustments may be necessary to
mitigate adverse effects on Reseller until Metavante remedies the breach;
provided that Metavante shall reimburse additional costs incurred by Reseller as
a result of such mitigation efforts to the extent such costs are approved in
advance by Metavante in writing. Metavante will, at Metavante's expense, assist
Reseller in making such corrections through the most cost-effective means,
whether manual, by system reruns or program modifications.
5.4. Backup Remedy. If Metavante fails to remedy the breach in the time
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periods specified in Section 5.3 above, Reseller may terminate the Agreement for
cause pursuant to Section 9.2 below. . THE REMEDIES SET FORTH IN SECTION 5.3
AND THIS SECTION 5.4 ARE RESELLER'S SOLE AND EXCLUSIVE REMEDIES FOR Metavante's
BREACH OF THE PERFORMANCE WARRANTY, TO THE EXCLUSION OF ALL OTHER REMEDIES, IN
CONTRACT, TORT, OR OTHERWISE.
5.5. DISCLAIMER OF ALL OTHER WARRANTIES. THIS PERFORMANCE WARRANTY, AND
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WARRANTIES IN ARTICLE 3, ARE IN LIEU OF, AND Metavante DISCLAIMS ANY AND ALL
OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR
WRITTEN) WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT Metavante KNOWS, HAS REASON TO
KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE),
WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR
BY COURSE OF DEALING. IN ADDITION, Metavante DISCLAIMS ANY WARRANTY OR
REPRESENTATION TO ANY PERSON OTHER THAN THE RESELLER WITH RESPECT TO THE
SERVICES PROVIDED UNDER THIS AGREEMENT.
6. Insurance; Indemnification.
6.1. Metavante.
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A. Metavante shall maintain for its own protection fidelity bond
coverage for the Metavante Operations Center personnel; insurance coverage for
loss from fire, disaster or the causes contributing to interruption of normal
services, reconstruction of data file media and related processing costs;
additional expenses incurred to continue operations; and business interruption
to reimburse Metavante for losses resulting from suspension of the Metavante
Operation Center's activities due to physical loss of equipment.
B. Metavante shall indemnify Reseller from, defend Reseller
against, and pay any final judgment awarded against Reseller, resulting from:
(a) any claim by a Third Party that the Metavante Software or Bill Payment
System infringes any patent, copyright, trademark or other third party
intellectual property right under United States law; and (b) personal injury,
death or damage to property arising out of the fault or negligence of Metavante
or its employees.
6.2. Reseller. Reseller shall indemnify Metavante from, defend
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Metavante against and pay any final judgment awarded against
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Metavante resulting from: (a) any claim by a Customer or User arising from such
party's use of the Bill Payment Services unless and except to the extent cause
by Metavante's intentional misconduct; (b) the information, instructions or data
provided by Reseller, any Customer, or any User to Metavante; (c) any
transactions initiated by Users; (d) transactions effected with a lost, stolen,
counterfeit or misused PIN issued to any User; (e) content or information
prepared or distributed by Reseller or any Customer regarding or relating to the
Bill Payment Services unless and except to the extent approved in advance by
Metavante; (f) any Customer's failure to perform the obligations described in
Exhibit A hereto, (g) any claim by a Third Party that any tradenames,
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trademarks, service marks, logos, or other marks provide by Reseller or any
Customer to Metavante for use in identifying the Bill Payment Services to Users
infringes any trademark or other third party intellectual property right under
United States law; (h) insufficient funds in the Settlement Account to cover
bill payments initiated by a User; and (i) personal injury, death, or damage to
property arising from the fault or negligence of Reseller, a Customer, or
employees or agents of either.
6.3. Indemnification Procedures. If any Third Party makes a claim covered
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by this Section against an indemnitee with respect to which such indemnitee
intends to seek indemnification under this Section, such indemnitee shall give
notice of such claim to the indemnifying party, including a brief description of
the amount and basis therefor, if known. Upon giving such notice, the
indemnifying party shall be obligated to defend such indemnitee against such
claim, and shall be entitled to assume control of the defense of the claim with
counsel chosen by the indemnifying party, reasonably satisfactory to the
indemnitee. Indemnitee shall cooperate fully with, and assist, the indemnifying
party in its defense against such claim in all reasonable respects. The
indemnifying party shall keep the indemnitee fully apprised at all times as to
the status of the defense. Notwithstanding the foregoing, the indemnitee shall
have the right to employ its own separate counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of such indemnitee.
Neither the indemnifying party nor any indemnitee shall be liable for any
settlement of action or claim effected without its consent. Notwithstanding the
foregoing, the indemnitee shall retain, assume, or reassume sole control over
all expenses relating to every aspect of the defense that it believes is not the
subject of the indemnification provided for in this section. Until both (a) the
indemnitee receives notice from indemnifying party that it will defend, and (b)
the indemnifying party assumes such defense, the indemnitee may, at any time
after ten (10) days from the date notice of claim is given to the indemnifying
party by the indemnitee, resist or otherwise defend the claim or, after
consultation with and consent of the indemnifying party, settle or otherwise
compromise or pay the claim. The indemnifying party shall pay all costs of
indemnity arising out of or relating to that defense and any such settlement,
compromise, or payment. The indemnitee shall keep the indemnifying party fully
apprised at all times as to the status of the defense. Following indemnification
as provided in this Section, the indemnifying party shall be subrogated to all
rights of the indemnitee with respect to the matters for which indemnification
has been made.
7. THIRD PARTY PRODUCTS. Reseller understands and agrees that Metavante may
use Third Party products in connection with the Bill Payment Services offered
hereunder. These products may include firewall security, web server software and
encryption software. Metavante makes no representation or warranty regarding the
performance of such Third Party software, specifically including any warranty
that performance will be uninterrupted or error-free.
8. RECORDS AND AUDITS; DISPUTE RESOLUTION.
8.1. Third Party Audits. Metavante shall cause a Third Party review of the
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Metavante Operations Center and related internal controls, to be conducted
annually by its independent auditors in accordance with applicable regulatory
and/or generally accepted accounting standards (e.g., SAS 70) then in effect.
Metavante shall provide to Reseller, upon written request, one copy of the audit
report resulting from such review.
8.2. Reseller Audits. Upon reasonable notice from Reseller, Metavante
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shall provide Reseller with copies of such financial records and supporting
documentation as may be reasonably requested by Reseller such that Reseller may
audit the fees charged to Reseller to determine that such fees are accurate and
in accordance with this Agreement. If, as a result of such audit, Reseller
determines that Metavante has overcharged Reseller, Reseller shall notify
Metavante of the amount of such overcharge and Metavante shall promptly pay to
Reseller the amount of the overcharge plus interest at the rate of 1.5% per
month (but in no event higher than the highest interest rate permitted by law),
provided that disputes shall be subject to the Dispute Resolution procedures
below. During the Term and for a period of one (1) year after termination or
expiration of this Agreement Metavante agrees to retain all records and
supporting documentation sufficient to document the fees paid or payable by
Reseller under this Agreement and to provide in a timely manner copies of the
same to Reseller following reasonable written request from Reseller.
8.3. Representatives of Parties. All disputes arising under or in
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connection with this Agreement shall initially be referred to the
representatives of each party who customarily manages the relationship between
the parties. If such representatives are unable to resolve the dispute within
five (5) Business Days after referral of the matter to them, the managers of the
representatives shall attempt to resolve the dispute. If, after five (5)
Business Days they are unable to resolve the dispute, senior executives of the
parties shall attempt to resolve the dispute. If, after five (5) Business Days
they are unable to resolve the dispute, the parties shall submit the dispute to
the chief executive officers of the parties for resolution. Neither party shall
commence legal proceedings with regard to a dispute until completion of the
dispute resolution procedures set forth in this Section 8.3, except to the
extent necessary to preserve its rights or maintain a superior position against
other creditors or claimants.
8.4. Continuity of Performance. During the pendency of the dispute
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resolution proceedings described in this Article 8, Metavante shall continue to
provide the Bill Payment Services so long as Reseller shall continue to pay all
undisputed amounts to Metavante in a timely manner.
9. Default; Termination
9.1. Reseller Default. Should Reseller (i) default in the payment of any
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sum of money hereunder and fail to cure such default within thirty (30) days
following notice thereof from Metavante, (ii) default in the performance of any
of its other material obligations under this Agreement and fail to cure such
failure within thirty (30) days after being given notice specifying the nature
of the failure, or (iii) become or be declared insolvent or bankrupt, or be the
subject of any proceedings related to its liquidation, insolvency or for the
appointment of a receiver or similar officer for it, make an assignment for the
benefit of creditors, or enter into an agreement for the composition, extension,
or readjustment of all or substantially all of its obligations, then, in any
such event, Metavante, at its option, may exercise any and all rights and
remedies available
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to Metavante at law or in equity for Reseller's default, specifically including,
without limitation, the right to immediately terminate this Agreement and
declare all amounts due, or to become due, immediately due and payable upon
providing written notice thereof to Reseller.
9.2. Metavante Default. In the event that (i) Metavante becomes or is
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declared insolvent or bankrupt, or is the subject of any proceedings related to
its liquidation, insolvency or for the appointment of a receiver or similar
officer for it, makes an assignment for the benefit of creditors, or enters into
an agreement for the composition, extension, or readjustment of all or
substantially all of its obligations, or (ii) Metavante has materially failed to
provide the Bill Payment Services and does not cure such default within thirty
(30) days following receipt of Reseller's written notice explaining Metavante's
failure in reasonable detail, or (iii) Metavante is unable to cause its
performance of any service listed in Schedule 5 to conform to the applicable
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Service Level within ninety (90) days of receiving Reseller's written notice
explaining the performance failure, then Reseller may terminate this Agreement
without penalty and without obligation to pay any Early Termination Fee upon
providing thirty (30) days prior written notice to Metavante.
10. DAMAGES.
10.1. Equitable Relief. Either party may seek equitable remedies,
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including injunctive relief, for a breach of the other party's obligations set
forth in Article 4 of this Agreement.
10.2. Exclusion of Incidental and Consequential Damages. Independent of,
-------------------------------------------------
severable from, and to be enforced independently of any other provision of this
Agreement, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON
CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) IN CONTRACT, TORT,
NEGLIGENCE OR OTHERWISE, FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR
EXEMPLARY DAMAGES OF ANY KIND--including lost profits, loss of business, or
other economic damage, and further including injury to property, AS A RESULT OF
BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT, INCLUDING ANY FAILURE OF
PERFORMANCE, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS
ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
10.3. Maximum Damages Allowed. Notwithstanding any other provision of
-----------------------
this Agreement, and for any reason, including breach of any duty imposed by this
contract or independent of this contract, and regardless of any claim in
contract, tort, negligence or otherwise, Metavante's total, aggregate liability
under this Agreement shall in no circumstance exceed payments made to Metavante
by Reseller under this Agreement during the *** prior to the act or event giving
rise to such claim, provided, however, that the foregoing shall not limit
Metavante's obligation to indemnify Reseller against Third Party claims under
Section 6.1B(i) hereof, subject to Reseller's compliance of Section 6.3 hereof.
10.4. Statute of Limitations. No lawsuit or other action may be brought
----------------------
by either party hereto, or on any claim or controversy based upon or arising in
any way out of this Agreement, after one (1) year from the date on which the
cause of action arose regardless of the nature of the claim or form of action,
whether in contract, tort, negligence or otherwise; provided, however, the
foregoing limitation shall not apply to the collection of any amounts due under
this Agreement.
10.5. Economic Loss Waiver. In addition to and not in limitation of any
--------------------
other provision of this Article 10, each party hereby knowingly, voluntarily,
and intentionally waives any right to recover from the other party, and Reseller
waives any right to recover from any Eligible Provider, any economic losses or
damages in any action brought under tort theories, including, misrepresentation,
negligence and/or strict liability and/or relating to the quality or performance
of any products or services provided by Metavante. For purposes of this waiver,
economic losses and damages include monetary losses or damages caused by a
defective product or service except personal injury or damage to other property.
Even if remedies provided under this Agreement shall be deemed to have failed of
their essential purpose, neither party shall have any liability to the other
party under tort theories for economic losses or damages.
10.6. Liquidated Damages. Reseller acknowledges that Metavante shall
------------------
suffer a material adverse impact on its business if this Agreement is terminated
prior to expiration of the Term, and that the resulting damages may not be
susceptible of precise determination. Reseller acknowledges that the Termination
Fee is a reasonable approximation of such damages and shall be deemed to be
liquidated damages and not a penalty.
10.7. Essential Elements. Reseller and Metavante acknowledge and agree
------------------
that the limitations contained in this Article 10 are essential to this
Agreement, and that Metavante has expressly relied upon the inclusion of each
and every provision of this Article 10 as a condition to executing this
Agreement.
10.8. Data Security and Delivery. Payments delivered over an automated
--------------------------
clearing house system (ACH) are governed by the rules and performance standards
of the network. Metavante shall not be responsible for the loss, delay,
confidentiality or security of data or other payment information while in
transmission over communication lines, in the postal system, or in an ACH or
other network.
11. Term.
11.1. Initial Term. This Agreement shall be in effect during the Term, as
------------
set forth in Schedule 1. If this Agreement is terminated by Reseller prior to
----------
expiration of any Term for any reason whatsoever other than pursuant to Section
9.2, then Reseller shall pay to Metavante, as liquidated damages and not as a
penalty, a termination fee ("Termination Fee") in an amount equal to Reseller's
total Minimum Annual Commitment obligations over the remainder of the Term as
scheduled. The Termination Fee shall be payable to Metavante at least thirty
(30) days prior to the date of early termination of this Agreement and, in any
event, prior to Metavante returning the User Data to Reseller. The Termination
Fee shall be subject to rebate as described in Schedule 8 hereto.
----------
11.2. Rights Following Termination. Following expiration of the Term or
----------------------------
termination of this Agreement for any reason and upon Reseller's request,
Metavante shall provide to Reseller professional services, at the hourly rate
set forth in Schedule 4, to prepare for Reseller an
----------
---------
*** Omitted pursuant to a confidential treatment request and filed separately
with the Commission.
6
<PAGE>
electronic list of names and addresses of Users and User payees. All
transactions in progress prior to expiration or the notice of early termination
shall be completed by Metavante and Reseller shall remain liable for the fees
and charges associated with such transactions.
12. SERVICE CONTINUITY PLAN.
12.1. Services Continuity Plan. Metavante shall maintain throughout the
-------------------------
Term of the Agreement a Services Continuity Plan (the "Plan") in compliance with
applicable regulatory requirements. A detailed Executive Summary of the Plan has
been provided to Reseller. Updates to the Plan shall be provided to Reseller
without charge.
12.2. Relocation. If appropriate, Metavante shall relocate all affected
-----------
Bill Payment Services to an alternate disaster recovery site as expeditiously as
possible after declaration of a Disaster, and shall coordinate with Reseller all
requisite telecommunications modifications necessary to achieve full
connectivity to the disaster recovery site, in material compliance with all
regulatory requirements. "Disaster" shall have the meaning set forth in the
Plan.
12.3. Resumption of Services. The Plan provides that, in the event of a
-----------------------
Disaster, Metavante will be able to resume the Bill Payment Services in
accordance therewith within the time periods specified in the Plan. In the
event Metavante is unable to resume the Bill Payment Services to Reseller within
the time periods specified in the Plan, Reseller shall have the right to
terminate this Agreement without payment of the Termination Fee upon written
notice to Metavante delivered within forty-five (45) days after declaration of
such Disaster.
12.4. Annual Test. Metavante shall test its Plan by conducting one (1)
------------
test annually and shall provide Reseller with a description of the test results
in accordance with applicable laws and regulations.
13. MISCELLANEOUS.
13.1. Governing Law. The validity, construction and interpretation of
-------------
this Agreement and the rights and duties of the parties hereto shall be governed
by the internal laws of the State of Wisconsin, excluding its principles of
conflict of laws.
13.2. Venue and Jurisdiction. In the event of litigation to enforce the
----------------------
terms of this Agreement, the parties consent to venue in an exclusive
jurisdiction of the courts of Milwaukee County, Wisconsin and the Federal
District Court for the Eastern District of Wisconsin. The parties further
consent to the jurisdiction of any federal or state court located within a
district which encompasses assets of a party against which a judgment has been
rendered, either through arbitration or litigation, for the enforcement of such
judgment or award against such party or the assets of such party.
13.3. Entire Agreement; Amendments. This Agreement, together with the
----------------------------
schedules hereto, constitutes the entire agreement between Metavante and
Reseller with respect to the subject matter hereof. There are no restrictions,
promises, warranties, covenants or undertakings other than those expressly set
forth herein and therein. This Agreement supersedes all prior negotiations,
agreements, and undertakings between the parties with respect to such matter.
This Agreement, including the schedules hereto, may be amended only by an
instrument in writing executed by the parties or their permitted assignees.
13.4. Assignment. This Agreement may not be assigned by either party, by
----------
operation of law or otherwise, without the prior written consent of the other
party, which consent shall not be unreasonably withheld, provided that (a)
Metavante's consent need not be obtained in connection with the assignment of
this Agreement pursuant to a merger in which Reseller is a party unless the
other party to the merger is CheckFree Corporation, Fiserv, Inc or Alltel
Corporation, or any Affiliate or successor of any of them; and as a result of
which the surviving Entity becomes an Affiliate of another bank holding company,
bank, savings and loan association or other financial services provider; and (b)
Metavante may freely assign this Agreement (i) in connection with a merger,
corporate reorganization or sale of all or substantially all of its assets,
stock or securities, unless the other party is S1 Corporation, Corillian
Corporation, or Brokat AG, or any Affiliate or successor of any of them, or (ii)
to any Entity which is a successor to the assets or the business of Metavante.
13.5. Relationship of Parties. The relationship of Metavante to Reseller
-----------------------
under this Agreement shall be that of an independent contractor and nothing
contained in this Agreement shall create or imply an agency relationship between
Reseller and Metavante, nor shall this Agreement be deemed to constitute a joint
venture or partnership between Reseller and Metavante.
13.6. Notices. Except as otherwise specified in the Agreement, all
-------
notices, requests, approvals, consents and other communications required or
permitted under this Agreement shall be in writing and shall be personally
delivered or sent by (i) first class U.S. mail, registered or certified, return
receipt requested, postage pre-paid; or (ii) U.S. express mail, or other,
similar overnight courier service to the address specified below. Notices shall
be deemed given on the day actually received by the party to whom the notice is
addressed.
In the case of Reseller: Digital Insight Corporation
26025 Mureau Road
Calabasas, CA 91302
Attn: Chief Operating Officer
Fax: (818) 821-0833
With a copy to: General Counsel
In the case of Metavante: Metavante Corporation
4900 West Brown Deer Road
Brown Deer WI 53223
Attn: Ms. Nancy Langer
Fax: 414-577-9205
7
<PAGE>
13.7. Headings. Headings in this Agreement are for reference purposes
--------
only and shall not effect the interpretation or meaning of this Agreement.
13.8. Counterparts. This Agreement may be executed simultaneously in any
------------
number of counterparts, each of which shall be deemed an original, but all of
which together constitute one and the same agreement.
13.9. Waiver. No delay or omission by either party to exercise any right
------
or power it has under this Agreement shall impair or be construed as a waiver of
such right or power. A waiver by any party of any breach or covenant shall not
be construed to be a waiver of any succeeding breach or any other covenant. All
waivers must be in writing and signed by the party waiving its rights.
13.10. Severability. If any provision of this Agreement is held by court
------------
or arbitrator of competent jurisdiction to be contrary to law, then the
remaining provisions of this Agreement will remain in full force and effect. The
rights and obligations of the parties under Articles 4, 10 and 13, and Section
2.5A. shall survive the expiration or early termination of this Agreement for
any reason.
13.11. Attorneys' Fees and Costs. If any legal action is commenced in
-------------------------
connection with the enforcement of this Agreement or any instrument or agreement
required under this Agreement, the prevailing party shall be entitled to costs,
attorneys' fees actually incurred, and necessary disbursements incurred in
connection with such action, as determined by the court.
13.12. Publicity. Neither party shall use the other party's name or
---------
trademark or refer to the other party directly or indirectly in any media
release, public announcement or public disclosure relating to this Agreement or
its subject matter, in any promotional or marketing materials, lists or business
presentations, without consent from the other party for each such use or release
in accordance with this Section, provided that Metavante may include Reseller's
name in Metavante's Reseller list and may identify Reseller as its Reseller in
its sales presentations and marketing materials without obtaining Reseller's
prior consent. Each party agrees that neither it, its respective directors,
officers, employees or agents shall disclose this Agreement or any of the terms
or provisions of this Agreement to any other party. Notwithstanding the
foregoing, at Metavante's request Reseller agrees to issue a joint press release
prepared by Metavante to announce the relationship established by the parties
hereunder. Reseller agrees that such press release shall be deemed approved by
Reseller in the event that, within ten (10) business days of receiving
Metavante's proposed press release, Reseller does not provide written notice to
Metavante describing in reasonable detail Reseller's objections to the press
release. All other media releases, public announcements, and public disclosures
by either party relating to this Agreement or the subject matter of this
Agreement (each, a "Disclosure"), including promotional or marketing material,
but not including (i) announcements intended solely for internal distribution,
or (ii) disclosures to the extent required to meet legal or regulatory
requirements beyond the reasonable control of the disclosing party, shall be
subject to review and approval, which approval shall not be unreasonably
withheld, by the other party prior to release. Such approval shall be deemed to
be given if a party does not object to a proposed Disclosure within ten (10)
business days of receiving same.
13.13. Solicitation. Neither party shall solicit the employees of the
------------
other party during the Term of this Agreement, for any reason.
13.14. No Third Party Beneficiaries. Each party intends that this
----------------------------
Agreement shall not benefit, or create any right or cause of action in or on
behalf of, any person or entity other than the Reseller and Metavante.
13.15. Construction. Metavante and Reseller each acknowledge that the
------------
limitations and exclusions contained in this Agreement have been the subject of
active and complete negotiation between the parties and represent the parties'
voluntary agreement based upon the level of risk to Reseller and Metavante
associated with their respective obligations under this Agreement and the
payments to be made to Metavante and the charges to be incurred by Metavante
pursuant to this Agreement. The parties agree that the terms and conditions of
this Agreement shall not be construed in favor of or against any party by reason
of the extent to which any party or its professional advisors participated in
the preparation of this document.
13.16. Force Majeure. Notwithstanding any provision contained in this
-------------
Agreement, neither party shall be liable to the other to the extent fulfillment
or performance if any terms or provisions of this Agreement is delayed or
prevented by revolution or other civil disorders; wars; acts of enemies;
strikes; lack of available resources from persons other than parties to this
Agreement; labor disputes; electrical equipment or availability failure; fires;
floods; acts of God; federal, state or municipal action; statute; ordinance or
regulation; or, without limiting the foregoing, any other causes not within its
control, and which by the exercise of reasonable diligence it is unable to
prevent, whether of the class of causes hereinbefore enumerated or not;
provided, however, that in no event shall a failure of any Eligible Provider to
perform be deemed a force majeure under this Section 13.16 (unless such failure
is due to an event which itself qualifies as a force majuere). If any force
majeure event occurs, the affected party will give prompt written notice to the
other party and will use commercially reasonable efforts to minimize the impact
of such event (in the case of Metavante, in a manner consistent with the Plan).
This clause shall not apply to the payment of any sums due under this Agreement
---
by either party to the other.
13.17. Jury Trial Waiver. Each of Reseller and Metavante hereby
------------------
knowingly, voluntarily, and intentionally waives any and all rights it may have
to a trial by jury based on, or arising out of, under, or in connection with,
this Agreement or any course of conduct, course of dealing, statements (whether
oral or written), or actions of Metavante or Reseller, regardless of the nature
of the claim or form of action, whether contract or tort, including negligence.
8
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers as of the date first above written.
Metavante Corporation Digital Insight Corporation "Reseller"
By: /s/ Nancy Langer By: /s/ Kevin McDonnell
Name: Nancy Langer Name: Kevin McDonnell
Title: President--Electronic Payment & Presentment Title: CFO
By: /s/ Owen J. Sullivan 4/4/01
Name: Owen J. Sullivan Approved
Title: President, Client Development & Services Div. As to Form
By Legal
6E
9
<PAGE>
SCHEDULE 1
----------
DEFINITIONS
A. "ACH" shall mean automated clearing house services.
B. "Active Bill Payment User" or "Active User" shall mean an enrolled "User"
that has initiated a payment, paid a bill, contacted customer service or
has an outstanding bill payment claim within the prior 90 days.
C. "Affiliate" shall mean, with respect to a party, any entity at any time
controlling, controlled by or under common control with, such party.
D. "Agreement" shall mean this Agreement and all Schedules attached hereto.
E. "Bill Payment System" shall mean the procedures, systems, and software
Metavante has developed to provide the Bill Payment Services.
F. "Billable Account" shall mean that deposit account or other consumer asset
account of a User which, at the request of the User, has been activated
and enabled to pay bills on the Bill Payment System, whether or not the
account is actually used to pay bills.
G. "Business Day" shall mean Monday through Friday, excluding Federal banking
holidays.
H. "Contract Year" shall mean successive periods of twelve months, the first
of which shall commence on the Effective Date and terminate on the last
day of the month in which the first anniversary of the Effective Date
occurs.
I. "CPI" shall mean the Consumer Price Index - All Items Urban less food and
energy as promulgated by the United States Department of Labor (or any
successor index).
J. "Credit Risk" shall have the meaning defined in Schedule 6.
-----------
K. "Customer" shall mean a financial institution which executes an agreement
with Reseller to receive the Bill Payment Services.
L. "Damages" shall mean actual and verifiable monetary obligations incurred,
or costs paid (except internal costs, attorneys' fees, and court costs)
which (a) would not have been incurred or paid but for a party's action
or failure to act in breach of this Agreement, and (b) are directly and
solely attributable to such breach, but excluding any and all
consequential, incidental, punitive and exemplary damages.
M. "Depositor" shall mean any individual or small business maintaining a
deposit relationship with a Customer.
N. "DDA Account" shall mean a demand deposit account or other transaction
account maintained by a User with a Customer.
O. "Eligible Provider" shall have the meaning as set forth in Section 2.1A of
this Agreement.
P. "Entity" means an individual or a corporation, partnership, sole
proprietorship, limited liability company, joint venture or other form of
organization, and includes the parties hereto.
Q. "Estimated Remaining Value" shall mean the number of calendar months
remaining between the Effective Date of Termination and the last day of
the contracted-for Term, multiplied by the average of the three (3)
highest monthly Fees (but in any event no less than the Monthly Base Fee)
payable by Reseller during the twelve (12) month period prior to the
event giving rise to termination rights under this Agreement. In the
event the Effective Date of Termination occurs prior to expiration of the
First Contract Year, the Monthly Fees used in calculating the Estimated
Remaining Value shall be the greater of (i) the estimated monthly fees
set forth in the Fee Schedule, if any, and (ii) the average monthly fees
described in the preceding sentence for the period during which this
Agreement has been in effect.
R. "Inactive User" shall mean any User who is not an Active Bill Payment User
S. "Initial Term" shall have the meaning set forth in Section 2.1 of this
Agreement.
T. "Metavante Operations Center" shall mean the data center used by Metavante
to provide the Services under this Agreement.
U. "Metavante Software" shall mean the Metavante proprietary software residing
and operating on Metavante's computers which are part of the Bill Payment
System.
V. "Minimum Annual Commitment" shall mean the amounts set forth in Schedule 4
----------
hereto, which represents the minimum annual payment of User Fees which
Reseller shall make to Metavante under this Agreement.
W. "PIN" shall mean the personal identification number assigned to each User
to enable such User to access and receive the Bill Payment Services.
X. "Privacy Regulations" shall mean the regulations promulgated under Section
504 of the Gramm-Leach-Bliley Act, Pub. L. 106-102, as such regulations
may be amended from time to time.
Y. "Settlement Account" means each User's Billable Account, as specified in
Schedule 6 to this Agreement, which Metavante will charge for payments
----------
initiated by Users.
Z. "Term" shall mean the Initial Term, and any extensions or renewals thereof.
AA. "Service Level Agreement" shall mean those standards identified as Service
Level Agreements in Schedule 5 to this Agreement.
----------
10
<PAGE>
BB. "Service Level Credits" shall mean those credits applies to Reseller's
monthly invoice as described in Schedule 5 to this Agreement.
----------
CC. "Service Level Objective" shall mean those goals identified as Service
Level Objectives in Schedule 5 to this Agreement.
----------
DD. "Third Party" shall mean any person or entity other than the parties or
any Affiliates of the parties.
EE. "User" shall mean a Depositor who has completed an application, been
approved and been activated to receive Bill Payment Services through
the Bill Payment System.
FF. "User Data" means information regarding a Depositor or User submitted to
or learned by Metavante in connection with providing the Bill Payment
Services for Reseller, but not including information submitted to or
learned by Metavante regarding any payees.
GG. "User Fees" shall mean those fees and charges listed on Schedule 4 which
----------
are assessed based on the activation and maintenance of a User and/or
the User's use of the Bill Payment Services.
11
<PAGE>
EXHIBIT A
---------
CUSTOMER RESPONSIBILITIES
-------------------------
A. Front End Software. Customer shall utilize Reseller's front end
------------------
applications to interface with the Metavante Bill Payment System.
B. Enrollment of Users. Customer will obtain from each Depositor who desires
-------------------
to access the Bill Payment Services, or any portion thereof, an agreement or
authorization, in such form as is developed by Customer, to access the Bill
Payment Services (the "User Agreement"). The User Agreement will include,
without limitation, the User's authorization to allow Customer to provide
the Bill Payment Services to Users and, if applicable, authorization for
Customer or its subcontractor to initiate ACH debits to the User's DDA
Account. Customer agrees to cooperate with Metavante and provide Metavante
with all necessary information and assistance required for Metavante to
successfully make the Bill Payment Services operational and available to
Customer. Customer agrees that Metavante is under no obligation to provide
any User with access to the Bill Payment Services unless and until Customer
has provided Metavante with all information and documentation required by
Metavante for User set-up.
C. Disclosures. Customer will provide Users with all disclosures required
-----------
under all applicable federal, state and local laws, rules and regulations
("Applicable Law") necessary to have access to the Metavante Bill Payment
Services, specifically including, without limitation, the initial
disclosures required under Regulation E of the Federal Reserve Board (the
"Initial Disclosures"). Customer shall include in the Initial Disclosures
the appropriate telephone number or e-mail address (which may be a telephone
number or e-mail address maintained by Customer or a telephone number
maintained by Metavante) for Users to contact with questions about the Bill
Payment Services, and a statement that Customer may require written
confirmation of any oral notice of billing errors.
D. Compliance with Laws. Customer shall be responsible for compliance with all
--------------------
applicable laws and regulations including, without limitation, compliance
with error and dispute resolution procedures specified under the Electronic
Funds Transfer Act of 1978 and the regulations and interpretations
promulgated thereunder (including, without limitation, Regulation E of the
Federal Reserve Board) relating to each Customer's use of the Bill Payment
Services. While Metavante shall not have any responsibility for compliance
with such procedures or otherwise resolving disputes between Customer and
its Users, Metavante agrees to follow the procedures and to provide Customer
Service and Research services described in Schedule 5 hereto in accordance
----------
with the Service Levels. In addition, Metavante has instituted and will use
commercially reasonable efforts to maintain procedures to log, monitor, and
investigate User inquiries which are classified by Metavante, in its
reasonable discretion, as "billing error notices" under Federal Regulation
E, and to report results to Customer within time limits established under
Federal Regulation E. Metavante's current Statement of Procedures Regarding
Billing Error Notices is attached as Schedule 7 hereto, and is subject to
----------
change from time to time.
E. Confidential Information of Metavante. "Confidential Information" of
-------------------------------------
Metavante shall mean all confidential or proprietary information and
documentation of Metavante, whether or not marked as such. Confidential
Information shall not include: (i) information which is or becomes publicly
available (other than by the person or entity having the obligation of
confidentiality) without breach of this Agreement; (ii) information
independently developed by the receiving party; (iii) information received
from a third party not under a confidentiality obligation to the disclosing
party; or (iv) information already in the possession of the receiving party
without obligation of confidence at the time first disclosed by the
disclosing party. Customer shall not use, copy, sell, transfer, publish,
disclose, display, or otherwise make any of Metavante's Confidential
Information available to any Third Party without the prior written consent
of Metavante. Notwithstanding the foregoing, Customer may disclose
Confidential Information to its agents or contractors as may be necessary to
fulfill its obligations or exercise its rights under , or pursuant to a
request or order of any governmental agency having competent jurisdiction,
or upon the order or subpoena of any court.
F. Obligations. Customer shall hold the Confidential Information of Metavante
-----------
in confidence and shall not disclose or use such Confidential Information
other than for the purpose of using the Bill Payment Services, and shall
instruct its employees, agents, and contractors to use the same care and
discretion with respect to the Confidential Information of Metavante that
Customer requires with respect to its own most confidential information, but
in no event less than a reasonable standard of care, including but not
limited to, the utilization of security devices or procedures designed to
prevent unauthorized access to such materials. Customer shall instruct its
employees, agents, and contractors of its confidentiality obligations
hereunder and not to attempt to circumvent any such security procedures and
devices. All such Confidential Information shall be distributed only to
persons having a need to know such information to perform their duties in
conjunction with Customer's use of the Bill Payment Services.
12
<PAGE>
SCHEDULE 2
----------
AUTHORIZATION AGREEMENT
The undersigned ("Reseller") hereby authorizes Metavante Corporation,
("Metavante") to initiate debit entries and to initiate, if necessary, credit
entries and adjustments for any excess debit entries or debit entries made in
error, to Reseller's account indicated below and the depository named below, to
debit and/or credit the same such account.
This authority is to remain in full force and effect for the period coinciding
with the term (and any renewals thereof) of the Bill Payment Services Reseller
Agreement made the _____ day of ___________________ 2000, and any addenda
thereto (the "Agreement"), pursuant to the terms and conditions specified in the
Agreement.
DEPOSITORY NAME: -----------------------------------
ADDRESS: -----------------------------------
CITY/STATE/ZIP: -----------------------------------
TELEPHONE NUMBER: -----------------------------------
ROUTING TRANSIT NUMBER: -----------------------------------
ACCOUNT NUMBER: -----------------------------------
Digital Insight Corporation
("Reseller")
By: -------------------------
Name: -------------------------
Title: -------------------------
13
<PAGE>
SCHEDULE 3
----------
DESCRIPTION OF METAVANTE BILL PAYMENT SERVICES
1. Metavante Bill Payment Services
1.1. Payment Initiation. Metavante will provide the Bill Payment Services
on behalf of Reseller to Users who enroll for the Bill Payment Services.
Depending upon the Bill Payment Services selected by Reseller, Users will be
able to initiate payments, subject to any maximum payment limit established by
Metavante, by telephone or through a personal computer or other access device to
any payee in the United States except for government or court directed payments.
. Users shall be able to schedule payments up to 364 days in the
future (provided that Users in existence as of the Effective Date
hereof shall not be subject to such restriction).
. Users shall be able to schedule bill payments to occur on a
regular basis: weekly, bi-weekly, monthly, bi-monthly, semi-
monthly, quarterly, semi-annually or annually.
. Users shall be able to review, change, and cancel scheduled future
or recurring payments
1.2. Back-End Processing. Each business day, Metavante will consolidate
all of the payments made throughout the Bill Payment System. Several editing
functions check that payment information is correct before remittance is made to
the appropriate payees on behalf of the Users. Metavante then remits the proper
funds ("Credits") to all appropriate payees either electronically or by check if
the payee is not able to accept electronic remittances. All checks will be
mailed using the U. S. Postal Service, first class mail.
1.3. Debit to User Account
. Current Payment: Metavante will submit a debit request via the ACH
to the Settlement Account within 2 Business Days after the User
submits the request for payment, or otherwise as required under
the rules of the National Automated Clearing House Association.
. Future and Recurring Payments: Metavante will submit a debit
request via the ACH to the Settlement Account within 2 Business
Days after the payment date entered.
1.4. Credit Remission. Metavante will remit credit to vendor (payee) the
next Business Day after the User submits request for payment (as stated above
for current, future and recurring). Average length of time from User payment
request and receipt of payment by payee will be five (5) Business Days for check
payments (subject to U.S. Postal Services) and three (3) business days for
electronic payments (subject to the rules and performance of the electronic
transmission service provider).
1.5. User Kits. If Metavante is providing Fulfillment Services for
Reseller, Metavante will send User Kits no later than 5 Business Days after
Metavante receives User authorization information. Reseller's Server will be
updated with User information by the day the User Kit is mailed.
2. Fulfillment Services
If requested by Reseller and reasonably necessary, Metavante will perform
fulfillment services for Reseller. These services may include:
2.1. Collating and packaging all User Kit materials
2.2. Mailing User Kit packages (postage paid for by Metavante and
reimbursed by Reseller)
2.3. Creating and mailing secure passwords to Users
2.4. Mailing additional material, such as new payee lists, passwords, or
replacement user kits if required, and information updates requested by Users or
deemed appropriate by Reseller, or by Metavante with Reseller's reasonable
approval subject to pricing by Metavante.
2.5. Metavante's performance of the fulfillment services is subject to
Reseller providing all required User information to Metavante.
3. Stop Payments. Stops and reissues for check payments will be accepted by
Metavante beginning 5 business days after the date the User's payment processing
began on the system to the payee. In situations where it is apparent that the
payment is going or has gone to the wrong address, wrong payee, etc., Metavante
will accept stops and reissues immediately. Electronic payments cannot be
stopped. The Stop Payment Fee will be applied whenever any bill payment is
stopped by Metavante at Reseller's or the User's request, because the payee
address was incorrectly submitted by the User, or because the User requests a
refund on a check payment that has not yet cleared. The Stop Payment Fee will
not be assessed by Metavante if the payment is stopped by Metavante due to an
Metavante error, the payment was not posted by the payee even though the payee
address was correctly submitted by the User, or if the payment check was lost in
the mail.
4. Rejected Payments. If a payment is rejected for any reason, Metavante will
attempt to contact the User for resolution if necessary. If information is not
provided from the User within five (5) business days, Metavante will cancel the
payment.
14
<PAGE>
5. Stale Check Expiration. Metavante may set an expiration date for payment
checks at least ninety (90) days following the date of the payment check. If
a check has not been presented to Metavante for payment on or before the
expiration date, Metavante may choose to cancel the check, refund the amount
of the check to the User's DDA Account, and notify the User that the payment
did not post.
6. File Transfers. Metavante will initiate transaction polling at least once
per Business Day, or in the case of a holiday, the evening of the holiday if
the holiday falls before a Business Day, to the designated sites specified
by Reseller or its subcontractor. Metavante will notify Reseller or its
subcontractor of a problem with a file transfer via the method agreed upon
by the parties (i.e. via page, e-mail, or telephone call).
7. ACH Returns.
. A block will automatically (systematically) be placed by Metavante on all
accounts that have an ACH debit returned to Metavante Bill Payment
Services. No additional bill payments will be processed until the account
is properly funded and the return(s) cleared. If a payment request is
received while the account is blocked, a letter will be sent notifying
the User that the payment(s) will not be processed. A copy will be sent
to Reseller.
. Upon the first return, Metavante will automatically resend all ACH
returns under $100.00 (individually and cumulatively). Exception: debits
for payments in which the credit portion was sent electronically will be
resent regardless of the dollar amount without Reseller verification.
. Metavante will contact Reseller to verify all returns exceeding $100.00
(individually and cumulatively). If funds are available, Metavante will
resent the return(s). If funds are unavailable and if the payment was
made by check, a stop payment will be placed on the outbound payment.
8. Billing Timeline. Metavante begins the monthly billing cycle on the third
(3/rd/) business day of the month. By the fourth (4/th/) Business Day if
reasonably possible, but no later than the sixth (6/th/) business day,
advices are sent by regular mail to arrive in advance of the actual ACH
debit or credit which takes place on the fifteenth (15/th/) business day.
15
<PAGE>
SCHEDULE 4
----------
FEE SCHEDULE
Sponsor Implementation Fee
--------------------------
Internet Bill Payment - one time implementation fee per Customer* ***
* This Implementation Fee assumes (a) no data conversion which will be quoted
on a per situation basis, and (b) that the Customer is not a current user of
Metavante's Bill Payment Services through another reseller. If the Customer is
an existing user of Metavante's Bill Payment Services through another reseller,
the implementation fee will be (a) if the Customer uses Metavante's payment
warehouse, the fee will be $***; or (b) if the Customer does not use Metavante's
payment warehouse, the fee will be quoted on a per situation basis.
User Fees
---------
Enrollment Fee $*** per New Account (if manual enrollment required of
Metavante)
Inactive User Archival Fee $*** per Inactive User per Month
Transaction Fees*
Monthly Transactions Guaranteed Funds Non-Guaranteed Funds
----------------------------------------------------------------------------------------------------------------
*** $*** $***
----------------------------------------------------------------------------------------------------------------
*** $*** $***
----------------------------------------------------------------------------------------------------------------
*** $*** $***
----------------------------------------------------------------------------------------------------------------
*** $*** $***
----------------------------------------------------------------------------------------------------------------
*** $*** $***
----------------------------------------------------------------------------------------------------------------
*Transaction Fees reflect a blending of electronic and manual payments to
payees.
Consumers can pay any Payee and the fee schedule is based on an Open Payee
List.
Minimum Annual Commitment
Contract Year 1 $***
Contract Year 2 $***
Contract Year 3 $***
Contract Year 4 $***
Miscellaneous Fees
------------------
NSF $*** per NSF
Stop Payment $*** per stop payment
Check Photocopy $*** per check
Additional User Guides $*** per guide (when applicable)
E-Mail Handling Fee
-------------------
Metavante will receive and process Users' e-mail requests to change their
password or make other changes to their bill payment account without charge
until August 1, 2001 in anticipation of Reseller's development of an automated
system to receive and transmit such User requests to Metavante. In the event
that Reseller does not complete development of this system on or before such
date, Metavante and Reseller shall mutually agree upon the fees for Metavante to
continue to provide this service.
Customer Service
----------------
---------
*** Omitted pursuant to a confidential treatment request and filed separately
with the Commission.
16
<PAGE>
Claims Handling Only $*** per Active Bill Payment User per month
Full Customer Service
Monthly Transactions Fee Per Active Bill Payment User Per Month
---------------------------------------------------------------------------------------------
*** $***
---------------------------------------------------------------------------------------------
*** $***
---------------------------------------------------------------------------------------------
*** $***
---------------------------------------------------------------------------------------------
* Metavante will provide Complete Customer Service Support (Metavante
will initially respond to telephone inquiries from Users as well as
provide any subsequent back up support. Metavante takes the initial
call from Users on bill payment related issues. Metavante then, as
necessary, contacts the payees on the User's behalf and provides
follow up)
Dedicated 800 Customer Service Number
Service is provided 24x7 (excluding Christmas Day, New Year's day,
Easter Sunday, Memorial Day, Independence Day, Labor Day, and Thanksgiving
Day, and other federal legal holidays of which Metavante notifies Reseller
in advance, when the Call Center will close as of 11:00 p.m. the day before
the holiday and reopen on 11:00 p.m. on the day of the holiday)
Monthly Reporting
Custom Greeting Service Pricing
One time set up fee per dedicated 800 number $***
Monthly service charge per dedicated 800 number
with custom greeting* $***
*Example of a customized greeting: ("Thank you for calling Digital
Insight's Bill Payment Support line, how may I help you?)
Warm Transfer Option Service Pricing and Requirements
Sponsor Specific Call during DI Business Hours: Metavante Customer Care
Representative (CCR) will call Digital Insight Customer Service Analyst
(CSA) directly to perform a warm transfer. Once the call is picked up
(maximum one minute response time), the CCR making the call will perform an
introduction to CS identifying the following:
. CCR Name
. Customer Name
. Sponsor (Financial Institution)
. Issue Reported
Once the introduction has been completed, the CCR will drop off the phone
line (maximum one minute response time).
Digital Insight Requirements
. DI will set up a new 800 number (for Metavante Customer Care only)
. DI will be responsible for the expense of this 800 number
. DI will create a special priority queue in their phone system that would
link to this 800 number
. DI will be responsible for any telecom-related expenses including all
out-of-pocket fees of $*** per transferred caller and any ongoing
telephone expenses associated with transferred calls.
Metavante Requirements
. Metavante will set up a transfer connect feature to DI's new 800 number
(for Metavante Customer Care Only)
. Metavante will incur the AT&T transfer connect set up fee of $*** and
the programming costs estimated at about $***
---------
*** Omitted pursuant to a confidential treatment request and filed separately
with the Commission.
17
<PAGE>
Remote Customer Service Fees* *** (Customer is responsible for Sponsor
training)
Metavante will provide Partial Customer Service Support (Sponsor will
initially respond to telephone inquiries from Users and Metavante's
obligations are limited to providing research support. Sponsor is
responsible to take the initial call from Users on bill payment related
issues. Thereafter, if necessary, Metavante contacts the payees on the
User's behalf, providing follow up and support for resolution of the
customer service inquiry).
* Internet Service Provider Fees and compatible Browser (Netscape 4.0 or
higher or Microsoft 4.0 or higher) are the responsibility of the Sponsor
** For planning purposes, Reseller agrees to provide to Reseller's
Metavante Alliance Manager, no less frequently than Quarterly, a report
forecasting the number of new financial institution potentially using
the RCS Service as well as an estimate of the number of users.
Misrouted Calls
In the event that the Metavante Call Center receives misrouted calls from
Users in excess of ***% of Resellers total monthly volume routed to Metavante,
Metavante will assess a fee in the amount of $*** per misrouted call. Metavante
shall notify Reseller monthly if misrouted calls exceed ***% of Reseller's prior
month volume.
***
These prices are subject to periodic adjustments, taking into account such
factors as cost, market conditions, and inflation, among others.
---------
*** Omitted pursuant to a confidential treatment request and filed separately
with the Commission.
18
<PAGE>
SCHEDULE 5
----------
SERVICE LEVELS
19
<PAGE>
***
---------
*** Omitted pursuant to a confidential treatment request and filed separately
with the Commission.
20
<PAGE>
***
---------
*** Omitted pursuant to a confidential treatment request and filed separately
with the Commission.
21
<PAGE>
***
---------
*** Omitted pursuant to a confidential treatment request and filed separately
with the Commission.
22
<PAGE>
***
---------
*** Omitted pursuant to a confidential treatment request and filed separately
with the Commission.
23
<PAGE>
***
---------
*** Omitted pursuant to a confidential treatment request and filed separately
with the Commission.
24
<PAGE>
***
---------
*** Omitted pursuant to a confidential treatment request and filed separately
with the Commission.
25
<PAGE>
SCHEDULE 6
----------
A. NON-GUARANTEED FUNDS MODEL
1. Settlement Account. The Settlement Account will be the Billable Account of
the User who initiates a payment instruction.
2. Consumer Accounts. If the User is a natural person initiating payments for
his/her own personal, family, or household purposes (a "Consumer"), then, as
between Reseller and Metavante, Metavante bears the risk that the Settlement
Account will contain sufficient funds to settle payments transmitted by
Metavante pursuant to the Consumer's payment instruction on the date that
Metavante initiates the Debit to the Settlement Account (the "Credit Risk").
3. Business Accounts. If the User is not a Consumer (a "Business"), then, as
between Reseller and Metavante, Metavante bears the Credit Risk with respect
to that User, provided that Metavante's total exposure for the entire time
this Agreement is in effect is limited to a maximum loss of:
$1,000.00 per Business that has been enrolled for Bill Payment Services for
less than one year and
$2,500.00 per Business that has been enrolled for Bill Payment Services for
one year or longer.
4. Payment Cap. As of the Effective Date, each payment is capped at $9,999.00.
Metavante may change this cap from time to time without notice to Customer
or Reseller. Customer may choose to modify the payment cap for Consumers,
Businesses, or other Users upon providing written notification to Metavante.
In the event Customer increases the payment cap for any User above the
maximum then established by Metavante, Customer will bear the Credit Risk
for the full amount of any and all payments initiated by that User in excess
of Metavante's maximum payment cap.
5. ACH Return Items. Metavante shall be responsible to collect return items,
provided that Reseller is responsible to make Customers provide such
assistance as Metavante may reasonably request to recover funds, subject to
applicable law. Reseller shall require Customers to review applicants for
the Bill Payment Services to minimize risks to Metavante associated with
such person's use of the Bill Payment Services using the same degree of care
as the Customer uses when reviewing and approving applicants for a DDA
Account, which in no event shall be less than a commercially reasonable
standard of care. When returning ACH debit items initiated by Metavante for
a User's bill payment activities, Reseller shall be responsible to ensure
that the correct code is applied by Customers to the return item. If an
incorrect code is applied, the User's access to the Bill Payment Services
may be terminated.
6. Termination of Services. Metavante may terminate access to the services for
any User upon providing notice to the User and Reseller in the event
Metavante determines the User to present an unacceptable credit risk.
7. Risk Reduction Measures. Metavante may at its option implement features to
reduce credit risks. These may include but are not limited to pre-authorized
drafts, verifying funds through an ATM/EFT network, and separating debits
from credits so that payments are not sent until after good funds are
received.
B. GUARANTEED FUNDS MODEL
1. Settlement Account. The Settlement Account will be an account maintained by
the Reseller at a depository institution acceptable to Metavante. The
Reseller shall at all times maintain a sufficient balance in the Settlement
Account to satisfy payments initiated by Users.
2. Transfer of Funds. Metavante will initiate the ACH debit to transfer the
funds from the Settlement Account to Metavante's corporate account in
settlement of payment instructions transmitted by Users, and will promptly
notify Reseller of any discrepancies or errors associated with a
transaction. Settlement is not final until Metavante has good funds. In the
event that funds maintained by Reseller in the Settlement Account shall be
insufficient to fully satisfy Metavante's ACH debit, Reseller will,
immediately upon Metavante's demand, cause sufficient funds to be deposited
in the Settlement Account to satisfy Metavante's debit, or pay such amount
to Metavante directly.
3. Cooperation. Reseller and Metavante will cooperate with one another in any
research or reconciliation of any daily settlement transaction.
4. Daily Limit. Metavante will not set a daily or per payment limit on Users'
payments.
5. Validation. It is Reseller's responsibility to validate incoming ACH detail
files from Metavante for accuracy and completeness, notify Metavante of any
discrepancies, and provide appropriate resources for reconciliation.
6. Post-Termination Responsibilities. Reseller is responsible to fund bill
payments initiated by a User before this Agreement expires or is terminated
to take effect after expiration or termination, and Metavante is responsible
to complete the bill payment.
7. Termination of Services. Metavante shall terminate any User's access to the
Bill Payment Services upon receipt of Reseller's written request.
26
<PAGE>
SCHEDULE 7
----------
Metavante Statement of Procedures Regarding Billing Error Notices
Research Items and Regulation E
-------------------------------
Federal Regulation E establishes the basic rights, liabilities and
responsibilities of consumers who use electronic funds transfer services and
those of "financial institutions." It is designed to protect consumers from
liability for unauthorized transfers and other billing errors by requiring
"financial institutions" to follow specific procedures whenever they receive a
billing error notice from a consumer.
In the context of automated bill payment services, a Regulation E billing error
occurs, for example, when a payment is not, in fact, authorized by the consumer
or is processed incorrectly. When a "financial institution" receives a notice
of such a billing error, it must research and resolve the matter within the time
periods established by Regulation E . A "financial institution" must also
research and respond within specific time periods when a consumer requests
documentation of a bill payment transaction.
It is recommended that financial institutions review Regulation E for a complete
understanding of their responsibilities under the regulation. Regulation E
applies to "financial institutions," which is defined under the Regulation as a
"bank, savings association, credit union, or any other person that directly or
indirectly holds an account belonging to a consumer, or that issues an access
device and agrees with a consumer to provide electronic funds transfer services"
---
(12 CFR 202.2(i), as effective 1/1/99). Since Metavante Bill Payment Services
does not directly or indirectly hold accounts, or enter into agreements with
consumers to provide them electronic funds transfer services, it is Metavante
Bill Payment Services position that it is not a "financial institution" as that
term is defined under Regulation E. Therefore, although Metavante Bill Payment
Services will follow procedures and provide services to handle Reseller
inquiries related to automated bill payments in a timely manner pursuant to
Metavante Bill Payment Services agreement with its Reseller, ultimate
responsibility for Regulation E compliance remains with Metavante Bill Payment
Services Reseller, the financial institution.
Metavante Bill payment Services does not and will not provide legal advice or
opinions to financial institutions regarding Regulation E matters. However, the
following is Metavante Bill Payment Services internal summary of Regulation E
requirements, which is used by Metavante Bill Payment Services as a guide in
developing procedures for responding to Reseller inquiries that constitute
billing error notices under Regulation E, and the procedures that Metavante Bill
Payment Services has developed based on the Regulation E requirements. The
following is provided for informational purposes only. Metavante Bill Payment
Services makes no warranties or representations about the accuracy or
completeness of this information, and Metavante Bill Payment Services will not
be responsible for any actions or decisions by any financial institution based
on this information.
1. REGULATION E SUMMARY
a. Types of Billing Error Notices
Generally, a billing error notice is any written or oral notice from a consumer
that an automated payment is unauthorized, incorrect or erroneous and which
notice (i) enables the financial institution to identify the consumer's name and
account number, (ii) indicates why the financial institution believes that an
error exists, and (iii) includes, to the extent possible, the date, type, and
amount of the error. A billing error notice also includes a request for
documentation for a payment transaction.
Notwithstanding whether or not an inquiry would satisfy the Regulation E
definition of a billing error notice, it need not be handled in accordance with
Regulation E billing error resolution procedures unless the notice is received
by the financial institution within 60 days of sending the first statement on
which the billing error is reflected.
The Official Staff Commentary to Regulation E (as of 1/1/99) provides that "a
financial institution may require the consumer to give notice only at the
telephone number or address provided by the institution, provided the
institution maintains reasonable procedures to refer the consumer to the
specified telephone number and address if the consumer attempts to give notice
to the financial institution in a different manner."
b. Procedures and Timeframes for Resolving Regulation E Inquiries:
Regulation E provides the following time frames for responding to billing error
notices.
Ten (10) business days from receipt of the billing error notice to investigate
and resolve the matter;
One (1) business day after determining that an actual error occurred to resolve
the error by crediting the consumer's account;
Three (3) business days after making a determination to communicate the results
back to the user.
27
<PAGE>
c. Extensions:
If a billing error cannot be completely investigated and resolved to conclusion
within ten business days, a financial institution may obtain additional time to
investigate the matter under Regulation E under two circumstances:
Written Confirmation
--------------------
A financial institution has up to forty five (45) calendar days from the date of
receiving an oral billing error notice if the institution has requested that the
consumer confirm the notice in writing and the consumer has failed to do so.
Provisional Credit
------------------
If the financial institution provisionally credits the disputed funds to the
consumer's account within ten (10) business days of receiving the billing error
notice, Regulation E allows the financial institution until the end of forty-
five calendar days from the original receipt of the billing error notice to
research and resolve the problem. The financial institution must inform the
consumer of the amount and date of the provisional credit within two business
days of provisionally crediting the consumer's account and allow the consumer to
have full use of the provisionally credited funds throughout the investigation
period.
d. Resolution/Response
If the financial institution determines that no error occurred, the financial
institution must, within the three business day time period required under
Regulation E, report the results of its investigation to the consumer in a
writing explaining its findings and noting the consumer's right to receive
copies of documentation relied upon by the institution in making its
determination. The financial institution may reverse any provisional credit
previously made to the consumer's account, provided that the financial
institution must notify the consumer of the reversal and notify the consumer
that the financial institution will honor checks, drafts, similar items, and
preauthorized transfers for 5 business days following the notice as if the
provisional credit had not been reversed.
If a billing error is found to have occurred or cannot be resolved within the
time allowed by Regulation E, the error must be corrected within the one
business day period required under Regulation E, and the results must be
communicated within the three business day period - including, if applicable,
notice to the consumer that the provisional credit to the consumer's account has
been made final.
2. Metavante Bill Payment Services Procedures for the handling of electronic
bill payment research requests that fall within the framework of Regulation E.
In recognition of the requirements of Regulation summarized above, Metavante
Bill Payment Services has instituted the following procedures for handling
research requests.
The following are examples of the research requests that Metavante Bill Payment
Services will handle as billing error notices under Regulation E, provided the
request meets the timing and content requirements of Regulation E:
1) a user states that he/she did not schedule an electronic payment that was
debited to his/her account;
2) a user states that an electronic payment was remitted to a payee other than
the payee designated by the user;
3) a user states that an electronic payment was debited on a date that was not
on or about the date designated by the user ;
4) a user states that an electronic payment was debited for an amount that was
not the amount authorized by the user ;
5) a user states that an electronic payment was debited more times than the
user instructed;
6) a user states that an electronic payment was debited after the user
successfully canceled the payment in accordance with the applicable terms
and conditions;
7) a user states that a fixed recurring payment was electronically debited
after the ending date of the payment series instructed by the user.
Metavante Bill Payment Services receives each such research request and logs the
item on-line. It is important for financial institutions to recognize that
Metavante Bill Payment Services will log the request and begin to monitor
response times only when the request is received by Metavante Bill Payment
Services, not when it is received by the financial institution. In order to
ensure that Metavante Bill Payment Services will process the item within
Regulation E timeframes, a financial institution should, as permitted under the
Official Staff Commentary to Regulation E, identify the telephone number and
address specified by Metavante Bill Payment Services for billing error notices
in the initial disclosure statement the financial institution provides to
Resellers. The financial institution should also maintain procedures to refer
Resellers to this Metavante Bill Payment Services number or address if the
Reseller contacts the financial institution directly in order to ensure that the
item will be processed in a manner that will enable the financial institution to
satisfy Regulation E requirements.
Metavante Bill Payment Services Research team will evaluate every payment
research request it receives to determine if the payment was processed in error
(unauthorized or processed incorrectly), or the user is specifically alleging
that the payment was processed in error (incorrectly).
28
<PAGE>
If Metavante Bill Payment Services determines that the research item is a
billing error notice under Regulation E:
We will attempt to resolve the issue as quickly as possible. If we cannot
resolve the error within eight business days of the original notification
date and we have received written confirmation of the consumer's error
notice (if requested), the financial institution will be notified via
telephone by the research team, of the pending research inquiry and advised
that a provisional credit should be made to the user's account. By
notifying the financial institution within the eight business days we are
allowing for sufficient time for the F.I. to provisionally credit the
account prior to the expiration of ten business days, as required under
Regulation E.
The financial institution will be responsible for provisionally crediting
the consumer's account and notifying the consumer that a provisional credit
has been made to the consumer's account in accordance with Regulation E
requirements.
Metavante Bill Payment Services will continue to work the research request
to resolve it as quickly as possible. Metavante will notify the financial
institution of the disposition of any research issue not resolved within
the forty-five (45) extended calendar period. Where the alleged billing
error is an unauthorized payment, Metavante Bill Payment Services will
report to the financial institution its findings, but it will be the
responsibility of the financial institution to decide whether or not the
payment was, in fact, unauthorized based on these findings. A log will be
maintained of Metavante Bill Payment Services notification to the financial
institution.
The financial institution will be responsible for crediting the consumer's
account for errors, and notifying the Reseller in accordance with
Regulation E requirements of the final conclusions of the investigation. In
the event Metavante Bill Payment Services findings indicate that no error
occurred, the financial institution will be responsible for notifying the
consumer of the results of the investigation, reversing the provisional
credit (if any), and notifying the consumer of the reversal, all in
accordance with Regulation E requirements.
29
<PAGE>
SCHEDULE 8
----------
REBATE OF TERMINATION FEE
-------------------------
1. Rebate of Termination Fee. Subject to Metavante's rights under Section 2
-------------------------
below, Reseller shall receive a rebate of a portion of any Termination Fee
paid by Reseller hereunder in the event that Reseller shall enter into a
new exclusive agreement with Metavante to receive the Initial Services
within thirty-six (36) months following the Effective Date of Termination.
Such rebate shall be determined according to the following schedule:
Number of Months Following Termination Rebate
-------------------------------------- ------
0-3 100%
4-6 11/12
7-9 10/12
10-12 9/12
13-15 8/12
16-18 7/12
19-21 6/12
22-24 5/12
25-27 4/12
28-30 3/12
31-33 2/12
34-36 1/12
2. Payment of Rebate. The applicable rebate of the Termination Fee shall
-----------------
become payable to Reseller upon execution of a new agreement for reselling
Bill Payment Services by and between Reseller and Metavante within thirty-
six (36) months following the Effective Date of Termination (the "New
Agreement"). The terms of such New Agreement shall be as mutually agreed
by the parties and nothing herein shall obligate Metavante or Reseller to
accept any terms or conditions, whether or not previously acceptable to
either of them. The rebate may be paid to Reseller by Metavante, in its
sole discretion, in the form of a discount to fees payable by Reseller
under the New Agreement or as a credit against implementation, conversion,
training, or professional services fees payable by Reseller, or in such
other manner as Metavante shall decide. Reseller's right to receive the
rebate of the Termination Fee as provided under Section 5 above may not be
cancelled or revoked except by a written instrument signed by Metavante
expressly revoking Reseller's right to receive such rebate delivered prior
to execution of the New Agreement.
30
<PAGE>
ADDENDUM NO. 1 TO BILL PAYMENT SERVICES AGREEMENT
-------------------------------------------------
This Addendum No. 1 to that Bill Payment Services Agreement (the "Agreement")
dated ___________________ (the "Effective Date"), by and between Metavante
Corporation ("Metavante") and Digital Insight Corporation ("Reseller"). Unless
otherwise defined herein, all capitalized terms used in this Addendum shall have
the meanings defined for them under the Agreement.
For good and valuable consideration, receipt of which is hereby acknowledged,
Metavante and Reseller agree as follows:
Notwithstanding anything to the contrary in the Agreement, Metavante and
Reseller agree ***
***
***
Except as expressly amended hereby, all terms of the Agreement shall remain and
stand unchanged in full force and effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Addendum on their behalf as of the date first
set forth above.
--------------------------------------------------------------------------------------------------------------------------------
Metavante Corporation Digital Insight Corporation "Reseller"
--------------------------------------------------------------------------------------------------------------------------------
By: ______________________________________________ By: ________________________________________________
Name: ______________________________________________ Name: ________________________________________________
Title: ______________________________________________ Title: ________________________________________________
--------------------------------------------------------------------------------------------------------------------------------
---------
*** Omitted pursuant to a confidential treatment request and filed separately
with the Commission.
31