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Electronic Commerce Service Agreement

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Exhibit 10.4



This Electronic Commerce Service Agreement (" Agreement" ) is made by and between CheckFree Services Corporation (" CheckFree" ), a Delaware corporation, with its principal office at 4411 East Jones Bridge Road, Norcross, Georgia 30092, and Digital Insight Corporation (" Reseller" ), with its principal office at 26025 Mureau Road, Calabasas, California 91302, and is as follows:

1. Scope of Agreement.

The purpose of this Agreement is to enable Reseller to resell CheckFree' s Services in connection with other services offered by Reseller to its Client base in the United States. The " Service" or " Services" are CheckFree' s bill payment services (that represent a nationwide system for consolidating bill payments into the appropriate remittance data, both paper and electronic, for merchants/billers) and bill delivery services (that represent a nationwide electronic bill delivery system for the delivery of consumer bills via the Internet) as further described in Schedule A. A " Client" is a financial institution or other entity that utilizes the services offered by Reseller for the initiation of electronic banking transactions and/or electronic bill payments by the Client' s Users, and that has entered into a contract with Reseller pursuant to which the Client will receive Services through Reseller. A " User" is the depositary customer of Client, normally, but not always, a consumer account holder of the Client, who has completed an application, been approved and been activated to receive the Services through CheckFree, and generates electronic bill payments through Reseller. While a Client is under contract with Reseller for certain Services pursuant to this Agreement, CheckFree will have no direct contractual relationship for such Services with such individual Client. This Agreement represents a master agreement between Reseller and CheckFree for Services, and Reseller will establish and manage the relationships with its Clients and Users.

2. Term of Agreement.

2.1 This Agreement shall be effective as of September 8, 2004 (" Effective Date" ) and shall remain in force for a period of three (3) years (" Initial Term" ); and shall automatically renew and extend for successive one (1) year terms, commencing at the conclusion of the Initial Term or any renewal term, unless contrary notice in writing is given by Reseller or CheckFree at least one hundred eighty (180) days prior to termination of the then current term. The Initial Term and all renewal terms shall be referred to herein as the " Term." Upon termination, the obligations of a continuing nature shall continue to be binding and in full force and effect, including, without limitation, those reflected in: section 5, " Trade Secrets and Confidentiality" ; paragraph 12.7; paragraph 13.2; section 16, " Warranty and Limitation of Liability" ; section 17, " Indemnification" ; and, section 18, " Default; Remedies Upon Default" . If, upon the natural expiration of the Term under this section 2, Reseller has chosen to continue to offer a like service without CheckFree as the provider, CheckFree shall assist in converting the Services to the new provider so long as Reseller pays all mutually agreed upon fees and reasonable out-of-pocket expenses to be incurred by CheckFree to make the conversion on a time and materials basis using the Resource Time rates specified in Schedule B attached hereto.

2.2 The parties agree that the certain First Amended and Restated Electronic Commerce Service Agreement, as amended, between CheckFree Services Corporation and Digital Insight Corporation with an effective date of March 12, 2001, is hereby extended through the Effective Date of this Agreement and will be terminated in its entirety as of the Effective Date of this Agreement. * 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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3. Forms.

All forms and other documents required for the proper utilization of the Services shall be provided by Reseller and/or Client at its expense. All such forms and documents shall not be inconsistent with those that CheckFree customarily uses in providing such Services to its other clients, provided that Reseller and/or Client is given actual notice thereof and afforded reasonable time to implement any appropriate changes to such forms or documents. Upon reasonable notice, CheckFree shall have the right to review and approve for technical accuracy all sections relevant to the Services in such forms and documents prior to their use, provided that such review and approval shall not be unreasonably delayed or withheld by CheckFree. At Reseller' s written request, CheckFree shall assist Reseller in the preparation thereof. CheckFree shall be reimbursed by Reseller for the reasonable and Reseller-pre-approved cost of time and materials for any such assistance that shall be calculated in accordance with the Resource Time rates specified in Schedule B attached hereto, payable thirty (30) days after receipt of the invoice therefor.

4. Charges.

4.1 Reseller is free to set the price for access by its Clients to the CheckFree Services. Reseller is responsible for billing, invoicing and collecting fees from its Clients. Reseller is responsible for making payments due CheckFree directly to CheckFree, and bears all risk of billing and collections from Clients. CheckFree shall deliver the Billing Data File in accordance with Schedule C. CheckFree shall use commercially reasonable efforts so that CheckFree' s invoice for the preceding month matches the information in the Billing Data file. For the Services utilized, Reseller shall pay to CheckFree monthly within thirty (30) days of receipt of the invoice at its principal office in Norcross, Georgia (or such other place designated by CheckFree) the total of the applicable undisputed charges incurred during the preceding month in accordance with Schedule B.

4.2 Except as provided in Schedule B attached hereto, charges for the Services shall not be changed by CheckFree during the Initial Term. Thereafter, however, such charges may be changed at any renewal term with at least one hundred twenty (120) days prior written notice to Client. Reseller and/or Client shall furnish to Users at its expense all appropriate notices of changes in service and/or charges that may be required by law.

4.3 There shall be added to all invoices for the Services amounts equal to any applicable sales or other taxes levied, based on, arising from or directly connected with the furnishing of the Services to Reseller, Clients or Users hereunder, exclusive of taxes based on CheckFree' s net income. There shall be deducted from all invoices for the Services amounts equal to any applicable credits arising during the corresponding invoice period, including without limitation those associated with service level failures for the prior period.

4.4 All invoices for the Services rendered hereunder shall be due and payable thirty (30) days after receipt of the invoice. Unless Reseller has provided notice of (i) default to CheckFree under section 18 or (ii) a bona fide dispute of invoiced charge(s) which explains with specificity the disputed amount and remits timely payment of the undisputed amount, if Reseller fails to pay any such amounts when due, CheckFree may, at its option, and after giving at least ten (10) days prior written notice, discontinue furnishing the Services unless and until all such arrearages are paid in full, all without impairment of any other remedy that may be available to CheckFree. Reseller and/or Client shall furnish to Users at its expense all notices of such termination that may be required by law.

4.5 Notwithstanding any provision to the contrary in this Agreement, in the event that the United States Postal Service raises its postage rates, CheckFree may, with prior notice to Reseller, increase its fees relating to Paper Transactions, provided that, for purposes of the calculation of any such increase, Paper Transactions will not exceed twenty-seven percent (27%) of total transaction volume. Such increase in postal charges shall become effective coincident with the effective date of the United States Postal Service increase in such charges.

4.6 During the Term and for a period of one (1) year thereafter, either party shall have the right, once annually and upon reasonable advance notice and during normal business hours, to inspect and review the books and records of the other specifically regarding charges and payments pursuant to this Agreement. Each party may conduct any such audit individually or through an independent accounting firm, at its sole cost and expense (unless the audit reveals an under- or over-payment of greater than five percent (5%), in which case the party being audited shall reimburse the auditing party for the actual cost of that audit). If the audit reveals an under- or over-payment, the amount of such under- or over-payment is due within thirty (30) days after the audited party receives notice thereof. All information reviewed and obtained during any such audit hereunder shall be treated as Confidential Information pursuant to section 5 below. Audit requests must not be made more than once per year.

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5. Trade Secrets and Confidentiality.

5.1 Reseller acknowledges that all computer programs, data file content and organization, techniques, methods, rules, procedures, protocols, forms, instructions, Trade Secrets, as defined in the California Uniform Trade Secrets Act, Calif. Civil Code a7 3426.1, as amended from time to time (" Trade Secrets" ), as well as copyrights and any other proprietary rights of CheckFree or third parties used in connection with or in any way relating to the Services are the exclusive property of CheckFree or parties from whom CheckFree has secured such. Reseller further acknowledges that all CheckFree computer programs, data file content and organization, techniques, methods, rules procedures, protocols, forms, instructions, Trade Secrets and other information of CheckFree or third parties used in connection with or in any way relating to the Services, shall constitute CheckFree' s confidential information (collectively " CheckFree Information" ). Reseller and its subsidiary or affiliated corporations shall treat the CheckFree Information as confidential and will not disclose or otherwise make available the same in any form to any person other than employees, agents, contractors or affiliates of Reseller or its data processor who need to know such information for rendition of the Services. Reseller will instruct such employees, agents, contractors, affiliates and data processors to keep the same confidential using the same care and discretion that Reseller would use with respect to its own confidential property and Trade Secrets. Upon termination of this Agreement for any reason, Reseller shall return to CheckFree any and all CheckFree Information in its possession or under its control and shall cease using them in any way.

5.2 CheckFree shall treat as confidential and shall not disclose or otherwise make available to any person, other than employees, agents, contractors or affiliates of CheckFree or Reseller who need to know such information for rendition of the Services (i) any Trade Secrets and other proprietary rights of Reseller or third parties used in connection with the Reseller' s business or services and other information or materials of Reseller or third parties used in connection with the Reseller' s business or services, which are of value to Reseller or third parties and which CheckFree knows or has reason to know is treated as confidential; (ii) files or other information or materials provided by or on behalf of Reseller to CheckFree for the purpose of enabling the Services (items (i), and (ii) are referred to as " Reseller Data" ); or (iii) the Users' personal account information or other data received by CheckFree from Client or Users (" Users' Data" ). Reseller Data and Users' Data shall be referred to herein together as " Reseller Information." CheckFree will provide reasonable security measures to ensure that unauthorized third parties do not have access to Reseller Information. CheckFree agrees, and will cause its employees and other personnel having access to the Reseller Information, to agree in writing to hold such information in strictest confidence, not directly or indirectly, copy, use, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the same for any purpose whatsoever other than as expressly provided in this Agreement for rendition of the Services, and keep the same confidential by using the same care and discretion that CheckFree uses with respect to its own confidential information and Trade Secrets. CheckFree acknowledges that Reseller Information includes nonpublic personal information (hereinafter, " NP Information" ) as defined by the provisions of the Gramm-Leach-Bliley Act (15 U.S.C. a76809) and regulations promulgated thereunder. Without limiting anything in this paragraph 5.2 and for purposes of amplification, CheckFree further acknowledges and agrees not to use or disclose any NP Information for any purpose other than to carry out the purposes for which such NP Information is disclosed to CheckFree.

5.3 In the event that either party is requested or required to disclose Reseller Information or CheckFree Information (together " Confidential Information" ) of the other party pursuant to, but not limited to, interrogatories, requests for information, subpoenas or similar process, the party subject to the request or requirement shall provide the other with written notice of any such request or requirement promptly, but in any case prior to disclosure. Neither party shall disclose the terms of this Agreement except (a) as required by applicable law or regulation, (b) to its employees and agents with a need to know such terms, or (c) in connection with a potential merger or sale of all or substantially all of its assets; provided that the receiving party agrees in writing to be bound by the confidentiality restrictions of this Agreement. However, the mere existence of this Agreement between the parties does not constitute the Confidential Information of either party.

5.4 The parties acknowledge that (a) any use or threatened use of Users' Data or of either party' s Confidential Information in a manner inconsistent with this Agreement, or (b) any other misuse of the

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proprietary information of either party will cause immediate irreparable harm to the non-breaching party for which there is no adequate remedy at law. The parties hereby waive the defense that the non-breaching party has or will have an adequate remedy at law for any such breach or threatened breach. The parties agree and stipulate that the non-breaching party shall be entitled to seek injunctive relief without first arbitrating the issue and without the posting of a bond or other security; provided, however, that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in the amount of $1,000 shall be sufficient. Nothing contained in this paragraph 5.4 shall limit either party' s right to any remedies at law or in equity, including the recovery of damages from the other party for breach of this Agreement or an application to a court of competent jurisdiction for any appropriate provisional remedy such as attachments, temporary protective orders, writs of possession, receivers, preliminary injunctions and temporary restraining orders. The prevailing party in any action pursuant to this paragraph 5.4 shall be entitled to collect from the other party its attorneys' fees and full costs of such action.

6. Reliance on Information Provided.

CheckFree shall rely on the accuracy of all information provided to CheckFree by Reseller. Reseller shall promptly inform CheckFree if the data or information provided to CheckFree materially differs from those provided by the Client or User (" Incorrect Data" ), bear the cost of correction and pay any damages arising from Reseller' s delivery of Incorrect Data to CheckFree.

7. Availability of the Services.

Subject to the Service Level Agreement in Schedule C, CheckFree will maintain and operate the Services seven (7) days per week, twenty-four (24) hours per day, except for scheduled or emergency maintenance requirements.

8. Use of the Services.

Reseller, Clients and Users shall use the Services in accordance with CheckFree' s then-current terms and conditions. Such terms and conditions shall be set forth in documentation materials furnished by CheckFree to Reseller. CheckFree agrees to give Reseller at least thirty (30) days advance written notice of any material change in the terms and conditions; provided that any change, other than a change required by applicable law or governmental regulation, that materially impairs the quality of the Services or materially deviates in form and substance from the terms and conditions then in effect shall require ninety (90) days written notice from CheckFree, and CheckFree and Reseller shall discuss in good faith any anticipated negative impacts, if any, to Clients or Users.

9. Modifications in the Services.

9.1 If any modification to the Services shall be required by law or by governmental regulation, CheckFree and Reseller shall discuss in good faith ways in which to address the compliance issue and use their best efforts to comply. If either party determines that compliance is technically unfeasible, that party may elect to terminate the Agreement without penalty, by furnishing the other with forty-five (45) days prior written notice. Pursuant to section 13.1, CheckFree, at its sole expense, shall promptly make all modifications necessary for the Services to be in compliance with all applicable federal law and regulation. In all other cases, including but not limited to modifications required by state or local law, regulation or ordinance, Reseller shall pay for any increase in CheckFree' s costs and charges therefor, but if it affects any other client of CheckFree, such costs and charges shall be shared, on a reasonably equitable basis, by and among (i) Reseller and all affected CheckFree clients on the one hand on a pro rata basis, and (ii) CheckFree on the other hand to the extent the modification is a benefit to future clients. If the cost to Reseller for compliance is unreasonable as determined by Reseller in its sole discretion, then Reseller will be entitled to terminate this Agreement without penalty by furnishing forty-five (45) days prior written notice.

9.2 Subject to the provisions of paragraph 9.1 hereinabove, without prior notice to Reseller, CheckFree at its expense may make any modifications, changes, adjustments or enhancements to the Services that it reasonably considers to be suitable, so long as such modification, change, adjustment or enhancement does not require any action, preparation or participation on the part of Reseller, Client or Users and further provided that such modification does not materially impair the quality of the Services at the time such action is contemplated.

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10. Use of Service Marks.

10.1 Neither party shall have any right to use any copyrighted material, logos, trade names, trademarks or service marks (" Marks" ) of the other in connection with the Services, unless consented to by the party that owns such Marks.

10.2 Each party shall submit to the other all advertising and promotional materials used in connection with the operation of the Services that contain the other party' s Marks for technical review and prior approval. A response shall be given in a timely manner and approval shall not be unreasonably withheld. All requests shall be deemed approved if no response is given within five (5) business days of the request, provided that such requests contain a reference to such timeframe obligation. Each party shall be permitted to repeat or re-use any advertising and promotional materials, including any part thereof, that were previously approved by the other party, unless and until the other party revokes such approval in writing.

10.3 It is agreed that Reseller may develop and use its own trade names, trademarks, logos or service marks with respect to the Services and CheckFree shall have no proprietary interest therein.

11. Communications Lines and Equipment.

11.1 CheckFree may order, on Reseller' s behalf and after receiving Reseller' s specific written approval, the installation of appropriate telephone lines and communications equipment to enable Reseller to access the Services. Reseller shall pay for all costs of installation and use of telephone lines and communications equipment used solely by Reseller in connection with the Services.

11.2 CheckFree shall not be responsible for the reliability or continued availability of telephone lines and other communications equipment used by Reseller, Clients or Users in accessing the Services.

12. File Security, Retention and Transfer at Time of Termination.

12.1 CheckFree shall provide reasonable security measures to ensure that access to Reseller' s computerized files and records is available only to CheckFree and CheckFree' s agents, contractors or affiliates, and to Reseller, Clients and Users. CheckFree reserves the right to issue and change procedures from time-to-time to improve or protect file security.

12.2 CheckFree shall take reasonable precautions to prevent the loss or alteration of Reseller' s computerized files and records accessed or retained by CheckFree, but CheckFree cannot and does not guarantee or indemnify against any such loss or alteration. Accordingly, Reseller shall, at its expense, keep copies of the source documents of the information delivered to CheckFree and shall maintain a backup procedure for reconstruction of lost or altered Reseller computerized files and records to the extent deemed necessary by Reseller.

12.3 The parties shall work together to ensure adequate security standards, and CheckFree shall comply with CheckFree' s then-current Security Policy. For the infrastructure supporting access to the CheckFree Services, CheckFree shall review the security of that infrastructure annually, and to have its security certified periodically by an independent recognized vendor. CheckFree shall, at its sole cost and expense, have conducted each year a SAS 70 Type II audit of its operations. Each such audit shall include a Level Two review of CheckFree' s operations and procedures to confirm that CheckFree is in compliance with objectives relating to the CheckFree Services. At Reseller' s request, CheckFree shall provide Reseller with a confidential copy of the then current SAS 70 Type II audit report, within thirty (30) calendar days after receipt of Reseller' s request. CheckFree shall further supply Reseller with the full findings report and a certificate evidencing its SAS 70 compliance that can be provided to Reseller' s Clients, auditors, examiners, and other appropriate third parties. Upon ten (10) days written notice, CheckFree shall provide Reseller, or its designee, with reasonable access, during normal business hours and no more than once annually, to examine the records and procedures relating to activity performed on behalf of Reseller, such that Reseller can reasonably determine whether CheckFree is complying with its obligations to use appropriate security with respect to Users' Data, risk management, ACH operations and data center infrastructure; the time, place, scope and duration of any such examination shall be mutually agreed upon by the parties in advance. The parties may change the SAS 70 audit standard to another mutually agreeable standard in the future, as the industry evolves.

12.4 CheckFree acknowledges that security incidents are potentially serious, with the capacity to permanently damage Reseller and its Clients. Therefore, CheckFree agrees, in the event of a security incident that impacts Reseller and/or its Clients, to adhere to the Escalation Procedures. Security incidents are events that impact CheckFree or Reseller in the form of (a) viruses or other malicious software; (b) a network-based denial of service; (c) theft or destruction of either party' s property or Confidential

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Information; (d) network intrusions; and (e) other deliberate misrepresentations with intent to circumvent security. In the event that a security incident occurs within CheckFree' s operations which threatens or potentially threatens the availability of the CheckFree Services or Reseller Information (as that term is defined in section 5), CheckFree agrees to the following procedures (together, the " Escalation Procedures" ):

12.4.1 Notification of Reseller immediately or no later than twenty-four (24) hours following discovery of a security incident; 12.4.2 Periodic and regular updates to Reseller during the security incident so that Reseller may establish appropriate communication with Clients; 12.4.3 Provision of logs or other pertinent records of the security incident to Reseller for its or its Clients' use in reporting activity that appears to violate any applicable law; and

12.4.4 Convening a post mortem meeting with Reseller following the security incident to discuss, and, as necessary, adjust existing response procedures or to implement additional and/or revised protective measures.

12.5 In connection with providing the CheckFree Services, CheckFree may collect Users' Data. That Users' Data is subject to CheckFree' s privacy policy which was provided to Reseller and which may be updated by CheckFree. CheckFree shall comply with that privacy policy with respect to Users' Data and shall use such Users' Data solely for its risk management procedures and for the performance of services within the scope of this Agreement. In no event shall CheckFree' s privacy policy fall below the requirements set forth in paragraph 5.2 and under any applicable law or regulation. Each Party acknowledges and agrees that each User owns his/her own User' s Data. CheckFree and Reseller each shall use such Users' Data only as permitted under the scope of this Agreement and in accordance with all applicable law and regulation.

12.6 For the Term of the Agreement, CheckFree shall make reasonable efforts to remain certified under and in compliance with Verisign or CheckFree' s then-current vendor.

12.7 At the time this Agreement is terminated, Reseller shall be entitled to receive from CheckFree records or lists equivalent in content to CheckFree' s standard Authorized Vendor/Payee List for each User on CheckFree' s file. All such records and lists shall be in a form agreeable to both CheckFree and Reseller. Reseller shall bear the cost of all programming and processing that may be necessary to render the information usable to Reseller.

13. Government Regulation.

13.1 CheckFree shall, during the Term of this Agreement, be in compliance with federal and/or state rules and regulations as they relate to the provision of the Services and to CheckFree. Each party shall, as the case may be: (i) be responsible for compliance with all applicable laws, rules, and regulations (including, without limitation, Regulation E of the Board of Governors of the Federal Reserve System (" Regulation E" ), the Electronic Fund Transfer Act and the rules of any applicable national or regional Automated Clearinghouse Association; (ii) establish, maintain, and be responsible for applicable error resolution procedures required by Regulation E and the Electronic Fund Transfer Act; and, (iii) be responsible for delivering to the Users any applicable required disclosures and/or any provisional credits in connection with the error resolution procedure that may be required by Regulation E and the Electronic Fund Transfer Act. The parties will cooperate with one another in the investigation and resolution of any alleged errors.

13.2 Reseller and/or Client shall provide all required notices and disclosures to the appropriate regulatory authorities and to affected Users concerning the initiation or termination of this Agreement or of Services, or of any substantial changes in the Services being provided to Reseller, Clients or Users. CheckFree agrees that any and all Users' Data maintained by it for Reseller, and the related calculation and payment of amounts owed by Reseller to CheckFree hereunder, shall
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