EXHIBIT 10(j)
ACH OPERATIONS AGREEMENT
In consideration of the mutual promises and obligations sot forth herein,
CHECKFREE CORPORATION ("CheckFree") and KEYBANK NATIONAL ASSOCIATION ("KeyBank")
hereby agree to be bound by the terms and conditions set forth in this ACH
Operations Agreement ("Agreement") as follows:
1. SERVICES, FEES, CHARGES, AND VOLUME.
(a) KeyBank will assign to CheckFree the Federal Reserve transit routing
numbers ("Transit Number") as defined in Exhibit B for automated clearing house
("ACH") settlement or clearing originations. Such Transit Numbers will be used
by CheckFree only for ACH originations in accordance with the terms of this
Agreement. KeyBank will notify the Federal Reserve Bank of Cleveland ("Federal
Reserve Bank") to accept the Transmissions (defined under Section 2(a))
submitted by CheckFree using such Transit Numbers. "Services" hereunder shall
mean the provision by KeyBank to CheckFree of the use of the Transit Numbers and
of access with respect to the Transmissions to the ACH processing, clearing, and
settlement capability offered by the Federal Reserve Bank to KeyBank through
KeyBank's account at the Federal Reserve Bank. "Services" shall also include any
other services defined as "Services" in any schedule to this Agreement signed by
the parties and expressly referencing this Agreement and the inclusion of such
services as part of the Services.
(b) CheckFree shall pay to KeyBank for the Services such fees ("Fees") as
are specified in Exhibit A. CheckFree shall also pay to KeyBank any charges
assessed by the Federal Reserve Bank for or in connection with the Services.
KeyBank may increase the Fees effective as of each succeeding anniversary date
following April 1, 1999, by an amount not to exceed the percentage increase in
the Consumer Price Index during the one-year period immediately prior to the
applicable anniversary date.
2. ACH MAGNETIC TAPE/TRANSMISSION.
(a) CheckFree shall format daily a transmission ("Transmission") consisting
of ACH debit and credit entries in a form prescribed by the Operating Rules of
the National Automated Clearing House Association ("NACHA Rules") using thereon
the Transit Numbers as set forth in Section 1(a) and forward it directly to the
Federal Reserve Bank or its regional processing center. CheckFree shall forward
a duplicate of the Transmission to KeyBank at the same time that it sends the
Transmission to the Federal Reserve Bank which KeyBank may use for internal
monitoring purposes. In connection with the Transmissions, CheckFree shall use
an encrypted communications line with access controls acceptable to KeyBank and
will employ those security procedures identified as "Level One Security
Procedures" offered by the Federal Reserve Bank for the purpose of verifying the
authenticity of the source of the Transmission. In such and in all other
respects, CheckFree agrees to abide by the terms of Operating Letter No. 13 of
the Federal Reserve Bank entitled "Automated Clearing House Items" and its
appendices, as amended from time to time, or any successor operating letter
covering ACH transactions, and shall notify the Federal Reserve Bank of such
facts in the manner prescribed by it. The preparation and transfer of
Transmission to the Federal Reserve Bank, the processing of the Transmissions by
the Federal Reserve Bank or by CheckFree, including any processing involving the
forwarding, correcting, reversal, or rejection of a Transmission or any debit or
credit entry contained therein or any part thereof, and any conduct in
connection with or in relation to such preparation, transfer, and processing,
shall be defined hereunder as the "Operations".
(b) KeyBank has the right at any time to require, CheckFree to immediately
provide sufficient funds in the amount of each ACH credit entry contained in any
Transmission sent to the Federal Reserve Bank. Failure to provide sufficient
funds by 5:00 p.m. EST on settlement date, will result in the immediate
termination of this Agreement.
3. COMPLIANCE.
KeyBank and CheckFree understand, acknowledge, and agree that this
Agreement is subject to the ongoing approval of the Office of the Comptroller of
the Currency, the Federal Reserve Bank, and the Federal Reserve
Board, including but not limited to the ability of KeyBank to retain multiple
routing and transit numbers. Should the Federal Reserve Bank or any other
regulatory agency direct KeyBank to cease and desist such operations, refuse to
continue to permit KeyBank to provide the Services to CheckFree, or change the
method of operations involving the CheckFree Service, or should KeyBank's
provision of the Services or any part hereof be or become in violation of any
law, regulation, circular, or official interpretation or letter of a regulatory
agency, then KeyBank will not be, required to continue providing the affected
Service but will promptly notify CheckFree and that the services contemplated
herein will be terminated. However, KeyBank will use reasonable efforts to
attempt to assist CheckFree in determining alternative processing scenarios
provided that KeyBank reserves the right to negotiate the price with respect to
any such alternative servicing arrangements. CheckFree agrees that it willfully
comply with all applicable state and federal laws, regulations, and Federal
Reserve Bank operating letters, including but not limited to Federal Reserve
Board Regulation E, Federal Reserve Bank Operating Letter No. 13 or other
successor operating letter, and with the NACHA Rules as such laws, regulations,
operating letters, and NACHA Rules are amended from time to time and CheckFree
acknowledges that such amendments may necessitate a change in KeyBank's pricing.
Insofar as KeyBank's cooperation is necessary to enable CheckFree to comply with
the foregoing, KeyBank will reasonably cooperate with CheckFree. In addition,
KeyBank and CheckFree agree that if the NACHA Rules require any change in
operations involving the processing of Transmissions, CheckFree will cooperate
to comply with same. Notwithstanding any provision of this Agreement the terms
of this Agreement shall supersede any conflicting NACHA Rules.
4. TERM OF AGREEMENT.
(a) This Agreement will become effective on the Effective Date and will
continue for a three-year period (the "Initial Term") unless renewed for one, or
more additional two-year terms (each a "Renewal Term") and any one or more
additional ,successive biennial anniversary dates thereof (each a "Renewal
Date") pursuant to Section 4(b) and (c) below. The renewal period shall commence
on the expiration date of the Initial Term in accordance with the terms and
conditions of this agreement and at fees to be agreed upon at such time of
renewal.
(b) If either party does not wish to renew this Agreement for a Renewal
Term, it must give written notice to the other party of such intent by no later
that 120 days prior to the next Renewal Date and the Agreement will thereupon
terminate upon such Renewal Date. If such notice is not given by either party,
this Agreement will renew automatically for a Renewal Term upon such Renewal
Date. If either party intends to renew this Agreement with modifications for a
Renewal Term, it shall submit to the other party by no later than 120 days prior
to the next succeeding Renewal Date modified Agreement containing proposed terms
and conditions.
(c) Where a modified Agreement is submitted to a party pursuant to Section
4(b), such party will notify the submitter in writing of its selection, not
later than ninety (90) days prior to the next succeeding Renewal Date of one of
the following alternatives:
(i) The modified Agreement is acceptable and it wilt be signed at
least sixty (60) days prior to the applicable Renewal Date.
or
(ii) Such party requests renegotiation of certain terms and conditions
of the modified Agreement. Such requests will identify the
provisions to be negotiated and suggest modifications acceptable
to such party. In the event such party elects this alternative,
both parties reserve the right to not renew the Agreement in its
original form or with modifications proposed by either party and
the Agreement will terminate automatically on the Renewal Date
unless anew agreement in writing is executed by both parties.
or
(iii) Such party intends to terminate the Agreement, in which case the
Agreement will terminate automatically on the applicable Renewal
Date.
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(d) In the event that either party has submitted a modified Agreement and
the receiving party fails to notify the submitting party of a selection under
Section 4(c), the receiving party shall be conclusively presumed to have
accepted this modified Agreement, and the receiving party will execute the same
no less than (60) days prior to the Renewal Date.
5. AGREEMENT TERMINATION.
In addition to the termination procedure set forth in Section 4:
(a) Either KeyBank or CheckFree may terminate this Agreement upon material
breach of any provision hereof by the other party hereto, which shall expressly
include the failure of CheckFree to pay any fee or charge when due, upon giving
such other party (30) days prior written notice of its intention to terminate
and its reason therefor. Either KeyBank or CheckFree will, with any such notice,
to the other party, indicate that such other party has thirty (30) days within
which to remedy the breach and if it is remedied by such other party within such
period, this Agreement will continue as though no such notice had been sent.
(b) Either KeyBank or CheckFree may terminate this Agreement, upon giving
the other party hereto one hundred twenty (120) days prior written notice of its
intention to terminate, on or after acquisition, directly or indirectly, whether
through ownership of stock or through any other means whatsoever, of effective
or working control of the other party hereof, or its operations or policies, by
any corporation, trust association or similar corporation if following such
acquisition, failure to terminate this Agreement would, in the opinion of
counsel acceptable to the other party, give rise to a violation of one or more
provisions of the Sherman Act (15 U.S.C. ss.1 et seq.) or the Clayton Act (15
U.S.C. ss.18 et seq.)
(c) Either KeyBank or CheckFree may terminate this Agreement immediately by
giving the other party written notice if such other party becomes insolvent, is
unable to generally pay its debts as they become due, files or has filed against
it or its assets a petition or proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law affecting creditors rights, whether in a United States Bankruptcy
Court or other court, or a petition is presented for the winding up or
liquidation of a party, or a receiver, trustee, conservator, administrator,
custodian, or other similar official is appointed for its assets pursuant to a
state or federal court proceeding.
(d) Either KeyBank or CheckFree may terminate this Agreement upon written
notice to the other party in the event either party is required to discontinue
its participation in the Services based upon (i) a change in the rules,
regulations, or letters of any regulatory body, including the Federal Reserve
Bank or other reserve bank, the NACHA Rules, or any laws governing or applicable
to the Services that makes either party unable to continue to make Transmissions
or render Services hereunder, or (ii) an order of a state or federal court or
regulatory body having jurisdiction to require either CheckFree or KeyBank to
terminate Transmissions or Services hereunder.
(e) KeyBank may terminate the agreement immediately if CheckFree does not
provide sufficient funds as indicated in section 2(b).
6. CONTINUED PROCESSING.
In the event of termination of this Agreement, KeyBank may continue, if it
so elects, to perform the Service for CheckFree, KeyBank will establish charges
and costs for such continuing processing and will notify CheckFree, of the
amount thereof prior to performing the Services.
7. CONTINUED PROCESSING.
All obligations of either party incurred or existing under this Agreement
as of the time of any termination hereof will survive such termination.
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8. ASSIGNMENT.
The rights, duties, and obligations of KeyBank and CheckFree pursuant to
this Agreement shall not be assigned or otherwise transferred in any way without
the prior written consent of the other party, provided that neither party will
unreasonably withhold such consent.
9. REGULATION AND EXAMINATION.
KeyBank and CheckFree understand and agree that the performance of
obligations under this Agreement is subject, without notice, to the regulation
and examination of the Comptroller of the Currency, the Federal Reserve Board,
or such other governmental agency as shall have jurisdiction over the subject
matter hereof.
10. CONFIDENTIALITY.
(a) KeyBank will safeguard, and hold confidential from disclosure to
unauthorized persons, all data of CheckFree to which KeyBank or one of its
affiliates obtains access pursuant to this Agreement to the same extent that
KeyBank safeguards data relating to its own business, unless such data are
otherwise available to the public or are already in KeyBank's possession and
were rightfully obtained by it from others, or unless such disclosure is
required by law or regulation. In such case, KeyBank will bear no responsibility
for disclosures thereof or with respect thereto, whether inadvertent or
otherwise. KeyBank's obligations herein shall be perpetual and shall survive and
continue after termination.
(b) CheckFree will safeguard, and hold confidential from disclosure, to
unauthorized persons, all data owned or licensed by KeyBank or one of its
affiliates to which CheckFree obtains access pursuant to this Agreement to the
same extent that CheckFree safeguards data relating to its own business, unless
such data are otherwise available to the public or are already in CheckFree's
possession and were rightfully obtained by it from others, or unless required by
law or regulation. CheckFree's obligations herein shall be perpetual and shall
survive and continue after termination.
11. DUE CARE.
(a) KeyBank and CheckFree will exercise due care in performing their
respective obligations hereunder and each party will, in the, event of an error
or omission attributable to the malfunction of equipment which it owns or leases
or to the acts, negligence, or the failure of operators, programmers, or other
personnel or programs employed by them, which error or omission impedes the
performance of such party's obligations hereunder, use reasonable efforts to
correct such error or omission, and provide prompt notice of the error or
omission to the other party.
(b) Neither party shall be liable to the other for any nonperformance if it
is prevented from performing any task hereunder in whole or in part as a result
of an act of God, war, civil disturbance, labor dispute, or other cause beyond
its reasonable control, provided, that is has taken reasonable steps and
precautions to minimize the delay caused by such event and its commences
performance as soon as reasonably possible after the occurrence.
12. INDEMNIFICATION.
(a) CheckFree will at all times indemnify, protect, and hold harmless
KeyBank and its officer, employees, affiliates, and assigns (each an
"Indemnified Party") from and against any and all loss, liability, claims,
demands, or disputes, together with all costs, charges, and expenses, including
counsel fees and litigation expenses, imposed upon or on any manner accruing
against KeyBank or its assigns, arising out of or in any way related to the
Services or Operations or KeyBank's performance of its obligations under this
Agreement.
(b) CheckFree will, at its own expense and if KeyBank so requests, defend
any action or preceding brought against an Indemnified Party, in connection with
any such liability, claim, demand, or dispute.
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(c) These provisions will not be applicable in the case of such liability,
claim, demand, or dispute arising solely out of KeyBank's negligence or breach
of its obligations to CheckFree under this Agreement.
13. WARRANTIES.
Each delivery of a Transmission, and each communication of instructions to
KeyBank or the Federal Reserve Bank in connection with the Services, Operations,
or performance of this Agreement by CheckFree, shall constitute a warranty by
CheckFree to KeyBank:
(a) that the Transmission and all ACH entries therein (i) are in the
correct form and contain correction information, (ii) are timely under the terms
and provisions of Operating Letter 13 and this Agreement, (iii) with respect to
ACH debit entries, are for sums due and owing from accounts debited, and (iv)
with respect to ACH credit entries are for sums appropriately due to accounts
credited; and
(b) that the creation and processing of each ACH entry and error
correction, and the action of KeyBank or the Federal Reserve Bank in accordance
with any instruction from CheckFree, is fully authorized by CheckFree, the party
to whom such ACH entry relates, and any other party whose authorization is
required.
14. INSPECTION AND AUDIT.
CheckFree shall permit KeyBank or KeyBank's designee at any reasonable
time, with prior notice and at KeyBank's expense, to conduct an inspection or
audit of CheckFree's records and materials relative to the Services, Operations,
and of CheckFree's accounting or auditing procedures regarding the Services and
Operations. In addition, CheckFree will furnish to KeyBank on a quarterly basis,
a financial statement of CheckFree which has been completed based upon generally
accepted accounting principles. If KeyBank as a result of such inspection, audit
or review, reasonably concludes that it is exposed to undue financial risk or
exposure based on the internal controls and security procedures of CheckFree,
KeyBank shall notify CheckFree in writing of such finding and CheckFree shall
remedy such condition within a time frame agreed upon by the parties or, if the
parties cannot agree, within such time as is reasonable considering the risk or
exposure and the cost of controls.
15. INSURANCE.
KeyBank and CheckFree shall at all times during the term of this Agreement
maintain data media insurance to cover the replacement of lost or damaged
storage media and business interruption insurance to cover the expense of
reconstruction of lost data or files.
16. LIMITATION ON DAMAGES.
In any action by one of the parties against the other arising from
performance, or the failure of performance, of the provisions of this Agreement,
damages will be limited to general money damages in an amount not to exceed the
actual damages of the party, and reasonable attorneys' fees and other expenses
of litigation. In no case will a party be responsible for special, incidental,
consequential, or exemplary damages, except for willful breach of this Agreement
or where such damages are part of a claim for indemnification from liability
under Section 12 as damages sought or recovered by a third party.
17. NOTICE PROCEDURE.
Notice, when required hereunder, will be sent by certified, or registered
U.S. Mail, postage prepaid, Federal Express, Airborne Express or a comparable
over-night service, to the respective parties as set forth below.
As to KeyBank Lynda Umbreit
Vice President - Cash Management Sales
KeyBank National Association
5
88 East Broad Street
Columbus, Ohio 43215
As to CheckFree William C. Buckham
Vice President and Assistant General Counsel
CheckFree Corporation
6000 Perimeter Drive
Dublin, OH 43017
18. EXCLUSIVE AGREEMENT.
The terms set forth in this Agreement represent the entire understanding
and agreement of the parties with respect to the subject matter hereof. No
representations, warranties, or promises are made other than as expressly set
forth herein. No services other than the Services will be implied to be an
obligation of KeyBank under this Agreement, and any monitoring of Transmissions
which KeyBank may undertake, if any, shall not be considered a Service or other
obligation owed to CheckFree.
19. RIGHT TO CONTRACT.
Each of the parties warrants that neither its execution and delivery of
this Agreement nor its performance of the provisions hereof is, or will
constitute, a violation on its part of any contract, indenture, or other
agreement or relationship to which it is a party or by which it is bound, and
hereby agrees that is will indemnify and save harmless the other party from and
against any loss, costs, liability, damages, or expense by reason of any claim
which may be asserted to the contrary by any third party.
20. SOFTWARE OWNERSHIP.
All specifications, tapes, and programs utilized or developed by KeyBank in
connection with the Services, Operations, or otherwise in connection with the
performance of this Agreement are and will remain the absolute property of
KeyBank. All specifications, tapes, and programs utilized or developed by
CheckFree in connection with the Services, Operations, or otherwise in
connection with the performance of this Agreement are and will remain the
absolute property of CheckFree.
21. TAXES.
In the event that the relationship crated between KeyBank and CheckFree
under this Agreement, or as a result of the performance of the Service or
Operations or of any other aspect of the relationship gives rise to any tax
responsibility, exclusive of income and similar taxes, payable to the State of
Ohio, any other state or political subdivision thereof or to the Internal
Revenue Service, or any other subdivision of the federal government, such
obligation, regardless of whether or not assessed against CheckFree, will be the
responsibility of CheckFree. In the event that KeyBank should be required to pay
any such tax obligation, CheckFree will reimburse KeyBank upon demand thereof.
22. RELATIONSHIP.
The parties agree that the parties hereto are acting hereunder as
independent contractors and nothing in this Agreement is intended nor shall be
construed to create a joint venture, partnership or similar business
arrangement.
23. CONSTRUCTION; APPLICABLE LAW.
This Agreement shall be governed and construed in accordance with the laws
of the State of Ohio. Paragraph headings herein are for convenience only and
shall not influence the construction or interpretation of this Agreement.
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Executed effective as of the 1st day of April, 1999 (the "Effective Date").
CHECKFREE CORPORATION
By: /s/ John Limbert
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Title: Executive Vice President
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KEYBANK NATIONAL ASSOCIATION
By: /s/ Sue E. Zazon
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Title: Senior Vice President
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