exv10w9






Exhibit 10.9




SERVICES AGREEMENT



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.”




RECITALS



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:





	1.	 	Description of Services.
	 
	 	 	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.
	 
	2.	 	Term; Termination.






	 	2.1	 	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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	 	2.2	 	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:






	 	(a)	 	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
	 
	 	(b)	 	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.
	 
	 	(c)	 	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.
	 
	 	(d)	 	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.






	3.	 	Obligations of PROCESSOR.






	 	3.1	 	PROCESSOR shall perform Transaction Processing on behalf of CUSTOMER.
	 
	 	3.2	 	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.
	 
	 	3.3	 	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:






	 	(a)	 	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)	 	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.
	 
	 	(c)	 	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.






	4.	 	Obligations of Elan.






	 	4.1	 	Elan shall perform Cash Servicing on behalf of CUSTOMER, pursuant to the Cash
Services Agreement.
	 
	 	4.2	 	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.
	 
	 	4.3	 	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.
	 
	 	4.4	 	The following account numbers shall be used for implementing the change of
settlement and adjustment accounts for funding purposes:





	 	 	 	 	 
	Settlement Account:

	 	DDA:
	 	xxxxxxxxxxxxxxxxx
	 

	 	Routing and Transit:
	 	xxxxxxxxx
	 
	 	 	 	 
	Adjustment Account:

	 	DDA:
	 	xxxxxxxxxxxxxxxxx
	 

	 	Routing and Transit:
	 	xxxxxxxxx







	5.	 	Obligations of CUSTOMER.






	 	5.1	 	CUSTOMER agrees that it shall cooperate fully with Elan and PROCESSOR at all
times during the course of this Agreement.
	 
	 	5.2	 	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.
	 
	 	5.3	 	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.






	6.	 	Representations and Limitations on Performance.






	 	6.1	 	Each of the Parties, solely as to itself, provides the following
representations, warranties and covenants set forth below:






	 	(a)	 	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.
	 
	 	(b)	 	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)	 	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.
	 
	 	(d)	 	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.
	 
	 	(e)	 	Compliance with the Law. Each Party represents and warrants
that it complies with all applicable laws.
	 
	 	(f)	 	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.
	 
	 	(g)	 	Binding Obligation. This Agreement constitutes a valid
and legally binding obligation of each Party, enforceable in accordance with
its terms and conditions.






	7.	 	Confidentiality.






	 	7.1	 	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.






	 	(a)	 	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:






	 	i.	 	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;
	 
	 	ii.	 	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);
	 
	 	iii.	 	All business, financial or technical
information of a Party and any of a Party’s vendors;




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	 	iv.	 	A Party’s marketing philosophy and
objectives, promotions, markets, materials, financial results,
technological developments and other similar proprietary information
and materials; and
	 
	 	v.	 	Any and all information of or about client(s)
of a Party, of any nature whatsoever, and specifically including but
not limited to client lists, client financial information, and the
fact of the existence of a relationship amongst the Parties and
client(s) (collectively, “Client Information”).






	 	(b)	 	The Parties agree now and at all times in the future that all
such Confidential Information shall be held in strict confidence and disclosed
only to those employees or agents whose duties reasonably require access to
such information. The Parties shall protect such Confidential Information
using the same degree of care, but no less than a reasonable degree of care, to
prevent the unauthorized use, disclosure or duplication (except as required for
backup systems) of such Confidential Information as each Party uses to protect
its own confidential information.
	 
	 	(c)	 	The Parties agree that any intentional violation of the
obligations of confidentiality, as set forth in this Section, shall be a
material breach of this Agreement and shall entitle the non-breaching Party to
immediately terminate this Agreement, without penalty, upon notice to the other
Parties. Notwithstanding anything to the contrary contained herein, if a Party
or any of its employees, agents, or representatives shall use or disclose any
Confidential Information of another Party in any manner other than in
connection with the performance of its obligations under this Agreement, the
non-breaching Party shall have the right, in addition to such other remedies
which may be available to it hereunder, at law or in equity, to seek immediate
injunctive relief enjoining such use, disclosure, or attempted use or attempted
disclosure, without the requirement of posting bond, it being acknowledged and
agreed that legal remedies are inadequate to protect such non-breaching Party
under such circumstances and that the unavailability of immediate injunctive
relief would subject said Party to irreparable harm.
	 
	 	(d)	 	The Parties shall establish data security policies and
procedures to ensure compliance with this Section and that are designed to:






	 	i.	 	Ensure the security and confidentiality of
Client Information;
	 
	 	ii.	 	Protect against any reasonably anticipated
threats or hazards to the security or integrity of such information;
	 
	 	iii.	 	Protect against unauthorized access to or uses
of such information that could result in substantial harm or
inconvenience to any Client;
	 
	 	iv.	 	Comply with all of the requirements of Title V
of the Gramm-Leach-Bliley Act (“GLB Act”), as the same may be amended
from time to time, and any regulations promulgated thereunder.; and
	 
	 	v.	 	Require each Party to permit the other Parties
to audit its compliance with this Sections 3.2 and 7.1(d) during
regular business hours upon




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	 	 	 	reasonable prior notice and at the auditing Party’s sole expense.
Each Party agrees to provide to the other Parties copies of audits
and system test results related to the systems used to deliver
Services under this Agreement, provided that the providing Party is
not contractually or otherwise legally prohibited from sharing such
information with the other Parties.






	 	(e)	 	If any Party is required by a court or governmental agency
having proper jurisdiction to disclose any Confidential Information, that Party
shall promptly, to the extent allowed to do so by applicable law or regulation,
provide notice of such request to the appropriate Party so that it may seek an
appropriate protection order.
	 
	 	(f)	 	Limited use of Confidential Information and Survival of
Obligations.






	 	i.	 	The Parties may use the Confidential
Information only as necessary for their performance hereunder and for
no other use, but in all cases the use of such Confidential Information
will be done in accordance with the GLB Act and any regulations issued
pursuant thereto. The Parties’ limited right to use the Confidential
Information shall expire when this Agreement is terminated.
	 
	 	ii.	 	The Parties’ obligations of confidentiality and
non-disclosure shall survive beyond the termination or expiration of
this Addendum.
	 
	 	iii.	 	Upon expiration of a Party’s limited right to
use the Confidential Information, the Party shall return all physical
embodiments thereof to the other Parties or, with the other Parties’
permission, may destroy the Confidential Information. The Party
returning or destroying Confidential Information shall provide written
certification to the other Parties that it has returned, or destroyed,
all such Confidential Information in its possession. Notwithstanding
the foregoing, Elan and PROCESSOR may retain one (1) copy of the
Confidential Information for regulatory purposes.






	 	(g)	 	Disclosure to Third Parties. If a Party’s performance
requires or allows disclosure of the Confidential Information to any third
parties, then that Party shall ensure that such third parties will have express
obligations of confidentiality and non-disclosure, with regard to the
Confidential Information, similar to that Party’s obligations hereunder.
Liability for damages due to disclosure of the Confidential Information by any
such third party shall be with the Party that disclosed the Confidential
Information to the third party.
	 
	 	(h)	 	Exceptions. Notwithstanding the foregoing, the term
“Confidential Information” shall not include any portion of such information
that the receiving Party can establish by clear and convincing evidence to have
been: (a) Publicly known without breach of this Agreement; (b) Known by the
receiving Party without any obligation of confidentiality, prior to disclosure
of such Confidential Information; or (c) Received in good faith by the
receiving Party from a third-party source having the right to disclose such
information.




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	 	(i)	 	Ownership of Intellectual Property. All intellectual
property belonging to a Party, including, without limitation, property
protected by patent, copyright or trade secret, shall remain the sole and
exclusive property of the Party disclosing such intellectual property to the
other Parties. No Party shall gain any right, title or interest in or to the
intellectual property of the other Parties by virtue of the disclosure of such
intellectual property by a Party in the performance of this Agreement.
	 
	 	(j)	 	Disclosure of Client(s)’ Information. In the event
that there should occur any actual or suspected theft of, accidental disclosure
of, loss of, or inability to account for (collectively, “Disclosure”) any of
Client Information by PROCESSOR or Elan, the disclosing party will immediately,
upon its discovery of any such Disclosure, notify CLIENT and investigate and
determine if a Disclosure has actually occurred. If, based upon the disclosing
party’s investigation, it determines that there has been an actual Disclosure,
then the disclosing party shall immediately notify CLIENT, and shall thereafter
investigate the scope of the Disclosure, and shall exercise the appropriate
measures to prevent any further Disclosure(s). The disclosing party shall
also, as soon as is reasonably practicable, report to CLIENT the details of the
Disclosure (including Client(s)’s identities, and the nature of the information
that is the subject of the Disclosure, and the measures that the disclosing
party has exercised, and/or plans to exercise, to prevent further
Disclosure(s). The disclosing party shall, in the event of a Disclosure,
cooperate fully with Client to notify the Clients as to the Disclosure.
Additionally, the disclosing party shall cooperate fully with all government
regulatory agencies and/or law enforcement agencies having jurisdiction and
authority over investigating any Disclosure, and/or any known or suspected
criminal activity. Elan and PROCESSOR agree that, subject to the limits set
forth in Section 9 below, the disclosing party will bear all reasonable
expenses directly associated with such a Disclosure, which may include but
shall not be limited to, reasonable attorney fees and expenses.






	8.	 	Indemnification.
	 
	 	 	Each Party shall indemnify and hold the other Parties harmless against all losses, damages,
costs, expenses and liability that may directly result from (i) the gross negligence or
willful act or omission of the indemnifying party, its representatives, successors or
permitted assigns, and (ii) any breach by the indemnifying party of any material provision
of this Agreement that is not cured by such party within sixty (60) days of the breaching
party’s receipt of written notice from the non-breaching party of such breach, except to the
extent that any such losses, damages, costs, expenses and liability is due or attributable
to the gross negligence or willful acts or omissions of the other Parties. Notwithstanding
the foregoing, nothing in this Section 8 shall extend PROCESSOR’S liability beyond that set
forth in the TRM/eFunds Agreement as between PROCESSOR and CUSTOMER.






	9.	 	Liability/Damages Cap.






	 	9.1	 	PROCESSOR shall not be liable under any circumstances to Elan, CUSTOMER or any
third party under this Agreement for losses arising from or related to: (a) Its failure
to timely settle due to the occurrence of events beyond its control; (b) The
malfunction of a CUSTOMER ATM; (c) Errors in currency replenishment; (d) Incorrect
programming or configuration of a CUSTOMER’s ATM; (e) Conversion of a CUSTOMER’s ATM to
another Processor; (f) Incorrect information provided on a CUSTOMER’s ATM profile; (g)
Non-approved software used in a Customer ATM or non-approved ATM type; (h)





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	 	 	 	Fraud or other unlawful manipulation of a CUSTOMER’s ATM that results in inaccurate
or invalid dispensing of cash or the reversal of validly dispensed cash; or (i) any
act or omission of PROCESSOR that does not constitute either gross negligence,
willful misconduct, or a material breach of PROCESSOR’s obligations.. Without
limiting the foregoing, the aggregate liability of PROCESSOR for any and all claims,
demands, costs, losses, damages or other potential or actual expenses which are in
any way related, directly or indirectly, to the execution, performance, obligation,
or subject matter of this Agreement shall not exceed two hundred fifty thousand
dollars U.S. Dollars ($250,000.00), regardless of the form of action employed,
whether in contract, warranty, tort (including negligence) or otherwise. THE
PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE,
OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION
WITH OR ARISING OUT OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, A BREACH OF
THIS AGREEMENT OR THE PROCESSING AGREEMENT.
	 
	 	9.2	 	The aggregate liability of PROCESSOR for any and all claims, demands, costs,
losses, damages or other potential or actual expenses which are in any way related,
directly or indirectly, to the execution, performance, obligation, or subject matter of
this Agreement shall be two hundred fifty thousand U.S. Dollars ($250,000.00) .






	10.	 	Successors and Assigns; Assignability.
	 
	 	 	No Party shall have any rights to assign this Agreement without the prior written consent of
each of the other Parties, and any unauthorized attempted assignment will be null and void.
Notwithstanding the foregoing, Elan and PROCESSOR may assign their respective rights under
this Agreement to their respective parent companies, or another wholly owned subsidiary of
their parent companies, provided that any assignee will take subject to all of the
obligations of the assigning Party. The assigning Party agrees to notify the other Parties
in writing, of any such assignment, within sixty (60) days after the date of the assignment.
This Agreement will inure to the benefit of and will be binding upon the parties and their
respective permitted successors and assigns.
	 
	11.	 	Notice.
	 
	 	 	All notices required and given herewith shall be addressed to each Party at the designated
address as shown below, and shall be effective when personally delivered by courier
(including overnight carriers) or U.S. mail, return receipt requested. The Parties may,
from time to time, designate different persons or addresses to which subsequent
communications will be sent by sending a notice of such designations in accordance with this
Section. The addresses for such notices shall be as follows:




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\









	 	 	 	 	 
	 	 	Original:	 	With Copy To:
	To Elan Financial Services:

	 	Elan Financial Services
	 	U.S. Bank Legal Dept.
	 

	 	ISO ATM Sales Support
	 	Mail Stop BC-MN-H21N
	 

	 	1255 Corporate Drive
	 	800 Nicollet Mall
	 

	 	Irving, TX 75038
	 	Minneapolis, MN 55402
	 
	 	 	 	 
	To Customer:

	 	TRM ATM Corporation	 	 
	 

	 	Attn: Controller	 	 
	 

	 	1101 Kings Highway, Suite G100	 	 
	 

	 	Cherry Hill, NJ 08034	 	 
	 
	 	 	 	 
	To Processor:

	 	eFunds Corporation	 	 
	 

	 	Attn: General Counsel	 	 
	 

	 	Address 601 Riverside Avenue	 	 
	 

	 	Jacksonville, Florida 32204	 	 







	12.	 	Attorneys’ Fees.
	 
	 	 	If any official proceeding holds that a Party has breached this Agreement, then the
non-defaulting Parties will be entitled to recover from the breaching Party or Parties, the
expenses incurred in enforcing the provisions of this Agreement, including reasonable
attorneys’ fees and costs.
	 
	13.	 	Severability.
	 
	 	 	If any provision of this Agreement is illegal, the invalidity of such provision will not
affect any of the remaining provisions, and this Agreement will be construed as if the
illegal provision is not contained in the Agreement. This Agreement will be deemed modified
to the extent necessary to render enforceable the provisions hereunder, and to comply with
the Rules.
	 
	14.	 	No Waiver of Rights.
	 
	 	 	No failure or delay on the part of any Party in exercising any right under this Agreement
will operate as a waiver of that right, nor will any single or partial exercise of any right
preclude any further exercise of that right.
	 
	15.	 	USA PATRIOT Act.
	 
	 	 	In order to comply with the requirements of the USA PATRIOT Act, Elan may require PROCESSOR
and CUSTOMER to provide their legal entity name, street address, taxpayer identification
number and other information that will allow Elan to identify each Party. Elan reserves the
right to require PROCESSOR and CUSTOMER promptly provide to Elan sufficient identification
documents upon request and in connection with USA PATRIOT Act compliance.
	 
	16.	 	Governing Law; Jurisdiction; Venue.
	 
	 	 	This Agreement shall be governed by and construed in accordance with the laws of the State
of Florida without regard to its conflicts of laws principles. Each Party submits to
personal jurisdiction in the State of Florida for the enforcement of the provisions of this
Agreement and irrevocably waives any and all rights to object to such jurisdiction for the
purposes of litigation to enforce or interpret any provision of this Agreement. Each Party
agrees that any action, suit or proceeding initiating or involving any Party to enforce or
interpret this Agreement shall be brought in a state or federal court in the City of
Jacksonville, Duval County, Florida. Each Party hereby irrevocably waives any objection
which it may have to the laying of the venue of any such action, suit or proceeding in any
such court and hereby further irrevocably waives any claim that




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	 	 	any such action, suit or proceeding brought in such a court has been brought in an
inconvenient forum.
	 
	17.	 	Force Majeure.
	 
	 	 	The Parties shall be excused from the performance of any obligation pursuant to the Services
imposed by this Agreement, for any period and to the extent that a Party is prevented from
performing such Services obligation(s), in whole or in part, as a result of delays beyond
the control and without the fault or negligence of any Party, or if such delay is determined
to be caused by the other Party(s) or third parties, an act of God, war, civil disturbance,
court order, or other cause beyond its reasonable control including, without limitation,
failure or fluctuations in electrical power, heat, light, air-conditioning, computer
equipment, telecommunications equipment, or ATM components, and such nonperformance will not
be a default hereunder or a ground for termination hereof.
	 
	18.	 	Relationship of the Parties.
	 
	 	 	No joint venture, partnership, agency, employment relationship or other joint enterprise is
contemplated by this Agreement, or by the Services provided pursuant to this Agreement’s
terms. No employee or representative of one of the Parties shall be considered an employee
of any of the other Parties. In making and performing this Agreement, the Parties shall act
at all times as independent contractors, and at no time shall any Party make any commitments
or incur any charges or expenses for or in the name of the other Party.
	 
	19.	 	Non Exclusive Agreement.
	 
	 	 	This is not an exclusive agreement. Nothing in this Agreement is intended to restrict Elan,
PROCESSOR, or CUSTOMER from entering into similar agreements with any third party.
	 
	20.	 	Survival.
	 
	 	 	All agreements that by their context are intended to survive the termination of this
Agreement, including, but not limited to, the provisions of Sections 6, 7, 8, 9 and 11, will
survive termination of this Agreement.
	 
	21.	 	Counterparts.
	 
	 	 	This Agreement may be executed in multiple counterparts, each of which shall be deemed to be
an original and all of which, when taken together, shall constitute one and the same
Agreement.
	 
	22.	 	Entire Understanding, Amendment.
	 
	 	 	This Agreement, including the exhibits which are incorporated by reference (other than any
separate agreement concerning confidentiality or non-disclosure), sets forth the entire
understanding of the Parties relating to its subject matter, and all other understandings,
written or oral, are superseded. Except as otherwise provided in this Agreement, this
Agreement may not be amended except in a writing executed by all Parties. In the event of a
conflict between this Agreement and the TRM/eFunds Agreement, the TRM/eFunds Agreement shall
control between PROCESSOR and CUSTOMER.




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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the dates set forth below.




	 	 	 	 	 	 	 	 	 
	(“Elan”)	 	eFUNDS CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	Richard T. Cullen
	 	By:	 	Bradley T. Mason	 	 
	Signature:  /s/ Richard T. Cullen 
	 	Signature:  /s/ Bradley T. Mason 
	 	 
	 

	 	Title: Senior Vice President
	 	 	 	Title:  Senior Vice President 
	 	 
	Date:  November 3, 2008

	 	Date:  November 3, 2008	 	 
	 
	 	 	 	 	 	 	 	 
	 
	(“CUSTOMER”)	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	Michael Dolan	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	Signature:  /s/ Michael Dolan 
	 	 	 	 	 	 
	 

	 	Title:  CFO 
	 	 	 	 	 	 
	
Date:  November 3, 2008

	 	 	 	 	 	 







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