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EXHIBIT 10.2
Backup Facility Agreement between Xxxxx de Oro Bank, N.A. and M&I
Data Services dated April 10, 1995
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BACKUP FACILITY AGREEMENT
THIS BACKUP FACILITY AGREEMENT is made as of this 10th day of April, 1995,
by and between M&I Data Services, a division of the Xxxxxxxx & Ilsley
Corporation (herein called "M&I") with offices located at 0000 Xxxx Xxxxx Xxxx
Xxxx, Xxxxx Xxxx, Xxxxxxxxx 00000 and Xxxxx de Oro Bank (herein called
"Customer"), a corporation with offices located at 000 Xxxxxxxxxx Xxxx, Xxxxxx
Xxxxxx, Xxxxxxxxxx, 00000.
WHEREAS, Customer is a user of computer equipment in the conduct of its
business operations and desires to have access to and use of backup computer
capability in the event of a Disaster as defined herein; and
WHEREAS, M&I desires to provide Customer with backup computer capability,
as more fully defined herein, in the event of a Disaster;
NOW, THEREFORE, in consideration of the mutual benefits accruing and
expected to accrue hereunder, M&I and Customer agree to be legally bound to the
following terms and conditions:
1. DEFINITIONS
In addition to the words and terms defined in this Agreement, the
following words and terms, as used herein, shall have the following meanings,
and such definitions shall apply to both the singular and plural forms of any
such words and terms:
"BACKUP FACILITY" means the computer facility containing the Equipment
Configuration, as described on Schedule A hereto and any Riders attached
thereto, which is made available to Customer in the event Customer experiences a
Disaster. The procedures and scope of disaster recovery services, are further
described in the Services Continuity Proposal dated March 16, 1995, which is
attached as a Rider to this agreement, has been provided to the Customer, and
may be revised from time to time.
"COMPUTER FACILITY" means the data processing installation utilized by
Customer, located at 000 Xxxxxxxxxx Xxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx, 00000.
"DISASTER" means any unplanned interruption of the operations of or
inaccessibility to the Customer's Computer Facility which is expected to last at
least twenty-four (24) hours.
"DISASTER NOTIFICATION" means the oral and subsequent written notice
which Customer must deliver to M&I upon or immediately following the occurrence
of a Disaster, in which notice a request is made for access to and use of the
Backup Facility.
"DISASTER NOTIFICATION FEE" means the charge imposed by M&I and
payable by Customer on each occasion that Customer delivers a Disaster
Notification requesting access to and use of the Backup Facility.
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"EQUIPMENT CONFIGURATION" means computer equipment listed on the
attached Schedule A, which may be modified from time to time pursuant to Section
9.
"MULTIPLE DISASTER" means one or more Disasters being experienced by
more than one Subscription Holder, entitling them to access to and use of the
Backup Facility described in Schedule A for the same or overlapping periods.
"NORMAL OUTAGE" means ordinary downtime experienced by equipment which
is serviced and maintained in adherence to the manufacturer's recommended
procedures and practices.
"SERVICES" means the disaster backup services requested by customer
and described on Schedule A and any riders attached thereto.
"SHARED UTILIZATION PLAN" is a plan to be implemented when more than
one Subscription Holder experiences a Disaster at the same time.
"SUBSCRIPTION HOLDERS" means computer processing equipment users under
contract to M&I for access to and use of the Backup Facility for Disaster
protection.
"SUBSCRIPTION FEE" means the basic monthly charge imposed by M&I as
set forth on Schedule A hereto and payable by Customer, entitling Customer to
access and use of the Backup Facility in the event Customer experiences a
Disaster.
"USAGE FEE" means the charges imposed by M&I as set forth on Schedule
A and payable by Customer for the period during which Customer makes use of the
Equipment Configuration following delivery of a Disaster Notification.
2. USE OF BACKUP FACILITY
A. In the event of a Disaster to Customer's Computer Facility,
Customer, subject to the provisions of Section 6 (relating to Multiple
Disasters), shall have access to and use of the Backup Facility immediately
after delivery of a Disaster Notification to M&I. If necessary, initial
notification and request for access may be oral, but such oral notice must be
followed by a written Disaster Notification within seventy-two (72) hours after
initial notification. The Disaster Notification shall specify the time period
within which access is desired by Customer.
B. Customer shall continue to have the right of access to and
use of the Backup Facility for up to six (6) consecutive weeks. After the
initial six-week period, Customer shall be entitled to continued access to and
use of the Backup Facility, provided that Customer has made a good faith effort
to remedy the Disaster at its Computer Facility and provided that it continues
to pay all applicable charges hereunder and provided further, however, that if
another Subscription Holder experiences a Disaster during this extended period
of use by Customer, that subsequent Subscription Holder shall be entitled to
priority use of the Backup Facility.
C. At no additional cost, Customer shall have access to and use
of the Backup Facility during each twelve (12) month period of the term of this
Agreement for the number of hours set forth on Schedule A in order to test its
Disaster procedure ("Test Time"). Customer shall consult with M&I in scheduling
Test Time, and the
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parties hereto shall mutually agree upon a designated Test Time. Scheduled Test
Time is cancelable by M&I at its discretion upon receipt of a Disaster
Notification from a Subscription Holder. Attempts will be made by M&I to
reschedule Test Time, but no allowance or credits will be made for Test Time
unused due to scheduling conflicts or cancellation resulting from receipt of
Disaster Notifications.
D. Customer will obtain and maintain, at its sole expense, any
necessary equipment not included in the Backup Facility, programming, and
appropriate telephone service, all to be adaptable to and compatible with the
Backup Facility.
3. TERM
The term of this Agreement shall commence upon acceptance by M&I (the
"Commencement Date") and shall terminate as of the same date as the Data
Processing Services Agreement between the parties ("Initial Term"). At the
expiration of the Initial Term, this Agreement shall automatically renew for
successive month-to-month periods, at the then-current rate being paid by
Customer, unless notice of termination shall have been given by Customer or M&I
at least thirty (30) days prior to the end of the Initial Term.
4. FEES
A. In consideration of the right of access to the Backup Facility,
Customer shall pay the monthly Subscription Fee which shall be due and payable
on the first of each month during the term of this Agreement. If the
Commencement Date shall occur on other than the first of a month, Customer
shall make an initial payment on the Commencement Date in an amount equal to
one-thirtieth of the monthly Subscription Fee for each day from the
Commencement Date (including the Commencement Date) through the last day of
said month. The amount of the monthly Subscription Fee is stated on Schedule A
and any Rider attached thereto.
B. If Customer experiences a Disaster and must make use of the
Backup Facility, the access to the Backup Facility shall be subject to payment
of the Disaster Notification Fee stated on the attached Schedule A. The
Disaster Notification Fee shall be due upon the occurrence of each separate
Disaster which causes Customer to use the Backup Facility.
C. Customer shall pay M&I a Usage Fee in accordance with the
attached Schedule A for the period during which use is made of the Backup
Facility. During such period, Customer shall not be required to pay the
Subscription Fee required by Section 4(A). For purposes of determining the
Usage Fee, the term "day" shall mean each period of twenty-four (24)
consecutive hours commencing upon the hour Customer accesses the Equipment
Configuration.
D. The monthly Subscription Fee specified on the attached Schedule
A and any Riders shall be subject to increases by M&I annually. These increases
will be limited to five percent (5%) per annum. Any increase shall become
effective upon the annual anniversary of the Commencement Date, if on the first
of a month, or, if not, then on the first day of the following month, and shall
be applied at
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each such annual anniversary thereafter to the monthly Subscription Fee
resulting from the effects of any previous adjustments or, in the alternative,
on the annual price charge date M&I may establish.
5. METHOD AND TIME OF PAYMENT
The Disaster Notification Fee shall be payable within twenty-four
(24) hours of the delivery of the formal Disaster Notification. The
Subscription Fee for each calendar month during the term of this Agreement
shall be invoiced to Customer in the preceding month and shall be paid by
Customer within thirty (30) days from the date of invoice. All other fees and
charges (including applicable taxes) incurred by Customer for Backup Facility
in any calendar month will be invoiced by M&I to Customer during the succeeding
calendar month and shall be paid by customer within thirty (30) days from the
date of invoice. Whenever any payment is not made when due hereunder, Customer
shall pay interest at the rate of eighteen percent (18%) per annum or the
maximum allowable rate of interest permitted by law of the state where the
Backup Facility is located, whichever is less.
6. MULTIPLE DISASTERS
In the event of a Disaster, Customer shall have the right of access
to and use of the Backup Facility. However, the Backup Facility provided for
herein is being offered by M&I to other Subscription Holders, and to the extent
it is possible that Multiple Disasters could be experienced by Customer and
other Subscription Holders, none of the terms and conditions contained herein
shall be interpreted or construed as a covenant, promise, or guarantee of any
kind that Customer will have immediate and exclusive access to and use of the
Backup Facility. In order to limit the problem of Multiple Disasters, M&I shall
enter into similar arrangements for the Backup Facility with no more than one
hundred (100) Subscription Holders per Backup Facility.
In the event of a Multiple Disaster, M&I will use its best efforts to
provide (i) coordinating and scheduling of a Shared Utilization Plan and/or
(ii) an alternate Backup Facility. The Shared Utilization Plan and/or (ii) an
alternate Backup Facility. The Shared Utilization Plan will attempt to meet the
needs of all Subscription Holders, whether first or subsequent to another
Subscription Holder experiencing a Disaster. If Subscription Holders become
dissatisfied with the M&I-developed Shared Utilization Plan, they have the
option of unanimously agreeing to a reasonable alternative plan which will be
submitted, in writing, to M&I. If accepted by M&I, the alternative plan will be
implemented by M&I within a reasonable time period.
7. LIABILITY
A. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, M&I MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE BACKUP FACILITY OR THE USE OF THE BACKUP FACILITY.
B. M&I's liability to Customer for any losses or damages, direct or
indirect, arising out of this Agreement shall not in any event exceed the
aggregate amounts paid by Customer during the forty-five (45) day period
preceding the month in which Customer's loss or damage is incurred. Except as
otherwise provided for herein,
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M&I shall not be liable to Customer or any other person for any claim of damage
arising, directly or indirectly, from the furnishing of services or equipment
pursuant to this Agreement or from interruption or loss of use thereof or from
any other cause. Under no circumstances shall M&I be liable for punitive,
special, or exemplary damages, nor shall it be liable for consequential damages
including, but not limited to, loss of anticipated profits or other economic
loss in connection with the services to be rendered hereunder. M&I shall not be
liable for any claim or loss arising from required sharing of the Backup
Facility between Customer and one or more other Subscription Holders in the
event of a Multiple Disaster. In the performance of any other services, M&I
shall not be responsible for any application or the results obtained from the
use of any computer programs or for results (foreseen or unforeseen) obtained
by Customer in the use of such programs. M&I shall not, under any
circumstances, be liable to any person not a party to this Agreement. M&I and
the Customer agree that these damage provisions are reasonable in light of all
present predictable circumstances (including expectable actual damages in that
the fees to be charged by M&I hereunder do not include amounts sufficient to
insure against greater claims). Except as set forth in Section 8, Customer's
obligations to M&I are limited to its payment obligations hereunder.
C. M&I shall not be considered in default hereunder due to any
failure in its performance of this Agreement should such failure arise out of
causes beyond its reasonable control. Such causes shall include, but are not
limited to, Acts of God or a public enemy; acts of any federal, state, or local
government or authority, whether in sovereign, proprietary, or contractual
capacity; fires; floods or other disasters; epidemics; quarantines; strikes;
freight embargoes; degradation of telephone or other means of communication
service; utility outages; equipment or parts unavailability, and unusually
severe weather conditions.
D. M&I shall maintain an operating environment for the Equipment
Configuration and shall adhere to recommended policies and procedures for
proper maintenance of such equipment. If any unscheduled interruption of the
Backup Facility continues for a period of thirty (30) consecutive days, then
all fees due hereunder for the period of interruption shall be waived and the
term of this Agreement shall be deemed extended for a like period. M&I shall,
as needed, reconstruct or repair the Backup Facility as quickly as possible
following any interruption, but M&I shall not be liable for any losses or
damages suffered by Customer because of damage to or interruption of the Backup
Facility or inaccessibility of the Backup Facility due to Normal Outage.
8. MUTUAL INDEMNIFICATION
Within the limitations set forth elsewhere in this Agreement, both
M&I and Customer mutually indemnify and hold each other and their respective
employees harmless from any and all claims, liabilities, loss, damages, and
causes of action relating to personal injury, death, or property damage to the
extent of each party's intentional acts or negligence arising out of this
Agreement, provided that each party shall retain sole defense of any such claim.
9. EQUIPMENT MODIFICATIONS
M&I reserves the right to unilaterally change the Equipment
Configuration. M&I shall give Customer sixty (60) days' prior written notice of
any
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significant changes, and M&I shall permit Customer a reasonable amount of
additional free Test Time after such substantial changes. No such changes shall
be permitted unless the resulting equipment configuration is technically equal
to or better than the Equipment Configuration available prior to the change. If
such change substantially and adversely impacts customer to the extent that
Customer is no longer able to utilize the Backup Facility, Customer shall have
the right, for a period of sixty (60) days after Customer is allowed access to
the new configuration, to terminate this Agreement by written notice without
further obligation except for the payment of fees and any other sums payable up
to the date of termination. Customer shall comply with all procedures and
standards published and provided by M&I relating to performance hereunder.
10. CONFIDENTIALITY
A. M&I's physical security system and access control system are
trade secrets and shall not be used or disclosed to a third party by Customer
for any purpose other than as necessary to perform this Agreement. M&I and
Customer shall each exercise the same standard of care to protect any
proprietary or confidential data of the other, disclosed during negotiation or
performance of this Agreement, as is used to protect its own proprietary or
confidential data from unauthorized disclosures. If Customer has any special
means of protecting such data, it shall in writing so inform M&I who will use
its best efforts to utilize such means to protect said data provided that if
M&I incurs additional costs in so doing, Customer shall pay all such additional
costs. If such material is publicly available, already in the other party's
possession or known to it, or is thereafter rightfully obtained from other
sources, then there shall be no restriction pursuant to this Agreement in the
use of such material.
B. Neither party shall disclose that Customer is utilizing this
service without the consent of Customer, except as may be required by law or
regulation.
11. TERMINATION
A. In addition to the right to terminate set forth in Section 9,
either Customer or M&I may, by written notice, and subject to the provisions of
Subparagraph B below, terminate this Agreement for cause without further
obligation upon the occurrence of a default by the other under the terms of
this Agreement. Said default(s) shall be expressly stated in the notice of
termination.
B. Written notification must be given of an alleged default
under the terms of this Agreement, and except for failure by Customer to make
timely payments pursuant to Sections 4 and 5, the notified party shall have
twenty (20) days to remedy the specific default(s). Customer shall have ten
(10) days from receipt of written notification to pay any delinquent amount.
Failure to cure the specified default(s) within the applicable allotted time,
or recurrence of the same default within thirty (30) days after its initial
cure, will give cause for immediate termination. In the event of termination
due to Customer's default, Customer shall be liable for all amounts then owing
and the monthly fees for all of the remaining months of the Initial Term or any
extension thereof, and the same shall become immediately due and payable.
C. Customer may terminate this Agreement at any time and without
cause and without penalty by giving M&I at least sixty (60) days' prior written
notice.
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D. M&I may terminate this Agreement at any time and without cause
by giving Customer six (6) months' prior written notice.
12. MISCELLANEOUS
A. Neither M&I nor Customer may assign this Agreement or any rights
or obligations hereunder (except M&I may freely assign to any successor
pursuant to a merger, consolidation, or sale of all or substantially all of its
assets) without obtaining prior written consent of the other party, which such
consent shall not be unreasonably withheld.
B. This Agreement shall be governed by the laws of the state of
Wisconsin.
C. No waiver by either party of any breach or default of any of the
covenants or conditions herein contained and performed by the other party shall
be construed as a waiver of any succeeding breach of the same or of any other
covenant or condition.
D. This Agreement supersedes all prior proposals, oral and written,
all previous negotiations, and all other communications or understandings
between M&I and Customer with respect to the subject matter hereof and may not
be modified in any manner except by a writing signed by an authorized
representative of the party being bound thereby.
E. The relationship between M&I and Customer created by this
Agreement shall be that of independent contractors, and nothing contained
herein shall be construed as constituting a partnership, joint venture, or
agency between M&I and Customer.
F. Any notice, request, or other communication to either party by
the party provided for herein shall be given in writing and shall be deemed
received upon earlier of receipt of three days after mailing if mailed postage
prepaid by regular or airmail at the address for such party as set forth above
or such changed address as may be subsequently submitted by written notice of
either party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by an authorized officer in a manner appropriate to each as of the
date above written.
M&I DATA SERVICES, A DIVISION OF
THE XXXXXXXX & ILSLEY CORPORATION VALLEY DE ORO BANK
("M&I") ("CUSTOMER")
By: /s/ XXXXXXX XXXXXXX-XXXXX By: /s/ XXXXXX XXXXXXXXX
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Name: Xxxxxxx Xxxxxxx-Xxxxx Name: Xxxxxx Xxxxxxxxx
Title: Vice President Title: Sr. Vice President/CFO
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SCHEDULE A
BASIC EQUIPMENT CONFIGURATION:
One (1) NCR VIPS 8565 processor
One (1) NCR VIPS 8575 processor
Two (2) NCR 6780 reader/sorters with inline microfilm
Three (3) NCR 647 impact printers
Eight (8) NCR 658 disk drives
Two (2) 6370 NCR tape drives
Two (2) NCR 6540 disc units
One (1) IBM 3800 laser printer
One (1) Kodak Optistart Datawriter fische processor
ONE-TIME FEES
Start-up Fee: $6,400.00
M&I MONTHLY FEE
Subscription Fee: $300.00 per month.
DISASTER NOTIFICATION FEE:
Disaster Notification Fee: $1,500.00
Disaster Notification Fee: $500.00 (Print-back only)
DISASTER PROCESSING FEE:
Usage Fee: Published price in effect at time of utilization of the disaster
backup services for proof encoding, item processing, report printing, and
statement rendering.
TEST TIME:
Test Time: Eight (8) hours per year
OTHER FEES:
Custom Statement Formatter (CSF), as described in the Rider.
All transportation costs.
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