This Services
Agreement (the “Agreement”) is entered into and shall
be effective as of the last date evidencing full execution of the
Agreement (the “Effective Date”) by and among U.S.
Bank National Association doing business as Elan Financial
Services (“Elan”), with offices located at 800
Nicollet Mall, Minneapolis, MN 55402, TRM ATM Corporation
with its principal office located at 1101 Kings Highway,
Suite G100, Cherry Hill, NJ 08034 (“CUSTOMER”),
and eFunds Corporation , with its principal office located
at 601 Riverside Ave., Jacksonville, FL 32204
(“PROCESSOR”), each referred to herein as a
“Party” and collectively referred to herein as
“Parties.”
WHEREAS , Elan provides currency, through a third Party
carrier, to CUSTOMER for use in the operation of CUSTOMER’S
Automated Teller Machines (“ATMs”); and
WHEREAS , the transactions for those ATMs are processed
by way of a separate agreement between CUSTOMER and PROCESSOR;
and
WHEREAS , in order for Elan to provide the currency, and
other currency-related services pursuant to its contractual
obligation to CUSTOMER (the “Services”), it must
receive certain data from PROCESSOR relative to those processed ATM
transactions; and
WHEREAS , the Parties desire to provide and to receive
the Services set forth in this Agreement; and
NOW
THEREFORE , in
consideration of the promises and mutual covenants contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto do
hereby agree as follows:
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1.
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Description of
Services.
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PROCESSOR and CUSTOMER hereby
acknowledge that, pursuant to that certain Processing Services
Agreement between PROCESSOR and CUSTOMER, dated April 1, 2008
(“the “TRM/eFunds Agreement”), PROCESSOR provides
the transaction processing for CUSTOMER’s ATM transactions
(“Transaction Processing”). Elan and CUSTOMER hereby
acknowledge that pursuant to a separate contractual agreement, Elan
provides currency to CUSTOMER’s ATMs (“Cash
Servicing”), and Elan and PROCESSOR and CUSTOMER agree that
these services, Transaction Processing and Cash Servicing,
performed on behalf of CUSTOMER, require that PROCESSOR and Elan
share certain information, each with the other Party, regarding the
Parties’ provision of their respective services to CUSTOMER.
For the purposes of this Agreement, the services (hereinafter
“Services”) shall be the exchange of necessary data
between PROCESSOR and Elan, pursuant to the Transaction Processing
performed by PROCESSOR and the Cash Servicing provided by Elan. The
provision of the Services shall at all times be with the
acknowledgement and agreement of CUSTOMER.
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2.
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Term; Termination
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2.1
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This Agreement will become effective
on the Effective Date, and will remain in effect until such time as
a Party provides the other Parties not less than ninety (90) days
advance written notice of its intent to terminate the Agreement, or
unless the Agreement is otherwise terminated, as provided below
(“Term”).
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Page 1
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2.2
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Termination for Cause
. A Party may terminate
this Agreement by written notice upon the occurrence of an event of
default (“Event of Default”). Each of the following
occurrences shall constitute an Event of Default under this
Agreement:
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(a)
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Financial Instability; Material
Changes . A
Party: (i) files for bankruptcy, receivership, insolvency,
reorganization, dissolution, liquidation or any similar proceeding;
(ii) has a proceeding instituted against it and such
proceeding is not dismissed within sixty (60) days;
(iii) makes an assignment for the benefit of its creditors or
an offer of settlement, extension or composition to its creditors
generally; (iv) a trustee, conservator, receiver or similar
fiduciary is appointed for that Party or substantially all of such
Party’s assets; or (v) the occurrence of any material
adverse change in the nature or conduct of any Party’s
business as it exists on the Effective Date
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(b)
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False Representation
. Any representation or
warranty made by a Party or any of its employees, officers, or
directors proves to have been false or misleading in any material
respect as of the date made, or becomes false or misleading at any
time.
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(c)
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Breach . A Party fails to observe any
material obligation specified in this Agreement, and such failure
is not cured within thirty (30) days of receipt of written
notice thereof from the non-breaching Party. Notwithstanding the
previous sentence, the third such breach automatically will be
deemed an Event of Default without the opportunity to
cure.
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(d)
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Elevated Risk
. A Party:
(i) knowingly engages in activities which violate applicable
State law or governmental regulations; (ii) operates in a manner
which by its nature may present exposure to one or both of the
remaining Parties, in either or both of the remaining
Parties’ reasonable business discretion, to increased
financial or other economic risk, or which result in undue economic
hardship and/or damage to the business operations of either or both
of the remaining Parties.
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3.
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Obligations of
PROCESSOR.
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3.1
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PROCESSOR shall perform Transaction
Processing on behalf of CUSTOMER.
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3.2
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PROCESSOR agrees that during the
conversion of CUSTOMER’s ATM terminals, PROCESSOR shall
effect a change of the then-current settlement and adjustment
banking account from a non-Elan account to an approved Elan banking
account provided to PROCESSOR by Elan. Notwithstanding anything to
the contrary in this Agreement, the Processing Agreement, or
otherwise, at such time as the Elan account is active/in-use,
PROCESSOR shall not authorize any request by CUSTOMER to settle
Elan vault cash (terminal funding) to an account other than the
aforementioned Elan account, without Elan’s written
consent.
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3.3
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PROCESSOR agrees that its provision
of the Services pursuant to this Agreement, resulting from
PROCESSOR’s performance of the Transaction Processing shall
be in accordance with the following service schedule:
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(a)
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PROCESSOR shall provide to Elan, a
daily file (“File”) containing electronic data relative
to the Transaction Processing for each day such Transaction
Processing is performed. Each File delivered to Elan shall contain
data from the previous day’s Transaction Processing, unless
otherwise agreed upon by Elan and PROCESSOR.
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(b)
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PROCESSOR shall substantiate any
Transaction Processing activity, as may be requested from time to
time by Elan, in order for Elan to properly perform the Cash
Servicing, as well as the Services pursuant to this
Agreement.
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(c)
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PROCESSOR shall maintain an ongoing
obligation to provide the Files to Elan, pursuant to this
Agreement, and unless otherwise provided for within the terms of
this Agreement, shall do so for the duration of this
Agreement’s Term.
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4.1
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Elan shall perform Cash Servicing on
behalf of CUSTOMER, pursuant to the Cash Services
Agreement.
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4.2
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Elan shall utilize the data received
from the Files provided to Elan by PROCESSOR, for its performance
of the Cash Servicing, which shall include, but not limited to,
details for cash forecasting, support functions, and reconciliation
of cash for CUSTOMER’s ATM terminals.
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4.3
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Elan shall coordinate a schedule of
conversion with CUSTOMER and PROCESSOR, whereby CUSTOMER’s
ATM terminals are converted to Elan vault cash, for the
facilitation of the Cash Servicing.
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4.4
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The
following account numbers shall be used for implementing the change
of settlement and adjustment accounts for funding
purposes:
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DDA:
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xxxxxxxxxxxxxxxxx
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Routing and
Transit:
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xxxxxxxxx
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DDA:
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xxxxxxxxxxxxxxxxx
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Routing and
Transit:
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xxxxxxxxx
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5.
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Obligations of
CUSTOMER.
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5.1
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CUSTOMER agrees that it shall
cooperate fully with Elan and PROCESSOR at all times during the
course of this Agreement.
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5.2
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CUSTOMER shall notify Elan and
PROCESSOR of any event for which CUSTOMER has knowledge CUSTOMER,
which shall or may impact the provision of the Services pursuant to
this Agreement.
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5.3
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CUSTOMER shall make available to
Elan and PROCESSOR information, data, or other materials, as may
reasonably be determined by Elan or PROCESSOR to be necessary to
the performance of the Services, at any time during the Term of
this Agreement.
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6.
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Representations and Limitations on
Performance.
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6.1
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Each of the Parties, solely as to
itself, provides the following representations, warranties and
covenants set forth below:
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(a)
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Organization.
Each Party is duly
organized, validly existing and in good standing pursuant to
applicable state and/or federal laws under which it is organized,
and is qualified to do business in all jurisdictions as may be
required for the conduct of its business activities
hereunder.
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(b)
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Power and Authority
. Each Party has full
power and lawful authority to (i) own and operate its assets,
properties and business; (ii) carry on its business as
presently conducted and (iii) enter into and perform this
Agreement. The persons executing this Agreement have full authority
to bind such Party to the terms and conditions hereof.
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(c)
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Authorizations; No
Violations .
Each Party’s execution and delivery of this Agreement, and
performance hereof: (i) are within its organizational powers;
(ii) have been duly authorized by all necessary organizational
action, if required by its governing organizational documents;
(iii) does not and will not conflict with or constitute a
breach or violation of its governing organizational documents, and
(iv) does not and will not conflict with or constitute a
breach or violation of any material agreement, indenture, deed of
trust, lease, mortgage, loan agreement or any other material
instrument or undertaking to which such Party is a
party.
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(d)
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Authorizations; No
Violations .
Each Party’s execution and delivery of this Agreement, and
performance hereof: (i) are within its organizational powers;
(ii) have been duly authorized by all necessary organizational
action, if required by its governing organizational documents;
(iii) does not and will not conflict with or constitute a
breach or violation of its governing organizational documents, and
(iv) does not and will not conflict with or constitute a
breach or violation of any material agreement, indenture, deed of
trust, lease, mortgage, loan agreement or any other material
instrument or undertaking to which such Party is a
party.
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(e)
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Compliance with the Law. Each Party
represents and warrants that it complies with all applicable
laws.
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(f)
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Warranty Disclaimer.
Except as expressly
set forth in this Agreement, Elan and PROCESSOR disclaim any and
all warranties concerning any products or services provided under
the Agreement, whether express or implied, including (without
limitations) any implied warranty of merchantability or fitness for
a particular purpose.
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(g)
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Binding Obligation.
This Agreement
constitutes a valid and legally binding obligation of each Party,
enforceable in accordance with its terms and conditions.
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7.1
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The
Parties acknowledge that in performing their obligations hereunder,
they may have access to, or may provide information and/or
documentation of a Confidential and/or Proprietary nature to the
other Parties.
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(a)
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Definition of Confidential
Information . “ Confidential
Information ” includes both information of a commercial
nature and information related to a Party’s Clients or
consumers. Confidential Information includes, but is not limited
to, the following, whether now in existence or hereafter
created:
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i.
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All
information marked as “confidential” or with similar
designation; or information which a Party should, in the exercise
of reasonable judgment, recognize to be confidential;
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ii.
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All
information protected by rights embodied in copyrights, whether
registered or unregistered, patents or pending patent applications,
, trade secrets, and any other intellectual property rights of the
other Parties (including all derivative works);
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iii.
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All
business, financial or technical information of a Party and any of
a Party’s vendors;
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