Agreement Number: ____________
AGREEMENT
Between
FISERV SOLUTIONS, INC.
D/b/a FISERV DES MOINES
Regency West 7
0000 Xxxxxxx Xxxxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000-0000
And
West Des Moines State Bank
0000 00xx Xxxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000
Date: March 14, 1997
AGREEMENT dated as of March 14, 1997 (the "Agreement") between FISERV SOLUTIONS,
INC., a Wisconsin corporation d/b/a Firserv Des Moines ("Fiserv"), and West Des
Moines State Bank, West Des Moines, Iowa ("Client").
Fiserv and Client hereby agree as follows:
1. Term. The initial term of this Agreement shall be six years (6) years and,
unless written notice of non-renewal is provided by either party at least
180 days prior to expiration of the initial term or any renewal term, this
Agreement shall automatically renew for a renewal term of six years (6)
years. This Agreement shall commence on August 1, 1997.
2. Services.
(a) Services Generally.
Firserv, itself and through its affiliates, agrees to provide Client,
and Client agrees to obtain from Fiserv the services (the "Services")
and products (the "Products") (collectively the "Fiserv Services")
described in the attached Exhibits (check if applicable):
Exhibit A - Account Processing Services
Exhibit B - Item Processing Services
Exhibit C - EFT Services
Exhibit H - Additional Fiserv Services
The Exhibits set forth specific terms and conditions applicable to the
Services and/or Products, and where applicable, the Fiserv affiliate
performing the Services and/or Products. Client may also select
additional services (the "Additional Services") and products (the
"Additional Products") (collectively the "Fiserv Additional Services")
from time to time by incorporating an appropriate Exhibit H to this
Agreement.
(b) Conversion Services. Fiserv will convert existing applicable Client
data files to the Fiserv Services. Those activities designed to
transfer the processing of Client's data from its present servicer to
the Fiserv Services are referred to as a "Conversion Services". Client
agrees to cooperate with Fiserv in connection with Fiserv's provision
of Conversion Services and to provide all necessary information and
assistance in order to convert the Client data files. Client is
responsible for all out-of-pocket expenses associated with the
Conversion Services. Fiserv will provide Conversion Services as
required in connection with Fiserv Services. Firserv will provide
conversion services at no charge to client.
(c) Training Services. Firserv shall provide training, training, aids,
user manuals, and other documentation for Client's use of Fiserv, in
its sole discretion, deems necessary to enable Client personnel to
become familiar with the Fiserv Services. If requested by Client,
Classroom training in the use and operation of the Fiserv Services
will be provided at a training facility designated by Fiserv. All such
training aids and manuals remain the property of Fiserv. Training
provided by Fiserv Des Moines will be at no charge to Client.
(d) Network Support Services. At Client's request, Firserv shall provide
Network Support Services (the "Network Support Services") consisting
of communication line monitoring and diagnostic equipment and support
personnel to discover, diagnose, repair, or report line problems to
the appropriate telephone company. Network Support Services are
included in our line fees.
3. Communication Lines, Computer Terminals, and Related Equipment.
(a) Communications Lines and Related Equipment. Fiserv shall order, on
Client's behalf, the installation of appropriate data communication
lines and communications equipment at Fiserv's data center to
facilitate Client's access to the Fiserv Services. Client understands
and agrees to pay such charges relating to the installation and use of
data communications lines and communications equipment as set forth in
the Exhibits. Except to the extent Fiserv shall provide Network
Support Services to Client, Fiserv shall not be responsible for the
reliability or continued availability of the telephone lines and/or
communications equipment used to access the Firserv Services.
(b) Computer Terminals and Related Equipment. Client shall obtain for its
locations sufficient computer terminals and other equipment, approved
by Fiserv and compatible with the Firserv Services, to transmit and
receive data between Client's locations and Fiserv's data center.
Fiserv and Client may mutually agree to change the type of computer
terminal and equipment used by Client.
4. Fees for Firserv Services.
(a) General. Client agrees to pay Fiserv the Firserv Services specified in
the Exhibits. Fees for Fiserv Services may be increased from time to
time as set forth in the applicable Exhibit. Upon notification to and
acceptance by Client, Fiserv may increase its fees in excess of
amounts listed in the Exhibits in the event that Fiserv implements
major system enhancements to comply with changes in law, government
regulation, or industry practices.
(b) Taxes. Fiserv shall add to each invoice, and Client shall pay, any
sales, use, excise, value added, and other taxes and duties however
designated that are levied by any taxing authority relating to the
Fiserv Services. In no event shall Client be responsible for taxes
based upon the net income of Fiserv.
(c) Exclusions. The charges and fees set forth in the Exhibits do not
include, and Client shall be responsible for, furnishing
transportation or transmission of information between the Fiserv data
center, Client's site or sites, and any applicable clearing house,
regulatory agency, or Federal Reserve Bank.
(d) Network Support Services. Network Support Services shall be rendered
from Fiserv premises. Off-premise support will be provided upon
Client's request on an as available basis at the then-current Fiserv
time and materials rates, plus reasonable travel and living expenses.
See Exhibit H.
(e) Payments Terms. Fees for Fiserv Services are due and payable monthly
upon receive of invoice. In the event any amounts due remain unpaid
beyond the 30th day after payment is due, Client shall pay a late
charge of 1.5 % per month. Client agrees that it shall neither make
nor assert any right of deduction or set-off from invoices submitted
by Fiserv for Fiserv Services.
5. Procedures for Use of Services.
(a) Procedures. Client agrees to comply with any applicable regulatory
requirements and with reasonable operating and access procedures for
use of the Services established by Fiserv and furnished from time to
time to Client.
(b) Changes. Fiserv continually reviews and modifies the Fiserv systems
used in the delivery of the Services (the "Fiserv System") to improve
service and comply with government regulations, if any, applicable to
the data utilized in providing the Services. Firserv reserves the
right to make changes in the Services, including but not limited to
operating procedures, the type of equipment or software resident at,
and the location of the Fiserv data center. Fiserv will notify Client
of any material change that affects Client's normal operating
procedures, reporting, or service costs prior to implementation of
such change.
6. Client Obligations.
(a) Input. Client shall be solely responsible for the input, transmission,
or delivery to and from Fiserv of all information and data required by
Fiserv to perform the Services except where Client has retained Fiserv
to handle such responsibilities on its behalf. The data shall be
provided in a format and manner approved by Fiserv. Client will
provide at its own expense or procure from Fiserv all equipment,
computer software, communication lines, and interface devices required
to access the Firserv System. If Client has elected to provide such
items itself, Fiserv shall provide Client with a list of compatible
equipment and software; Fiserv reserves the right to charge Client its
standard fee for recertification of the Fiserv System resulting from
such election.
(b) Client Personnel. Client shall designate appropriate Client personnel
for training in the use of the Fiserv System, shall supply Fiserv with
reasonable access to Client's site during normal business hours for
Conversion Services and shall cooperate with Fiserv personnel in their
performance of Services, including Conversion Services.
(c) Use of Fiserv System. Client shall comply with any operating
instructions on the use of Fiserv System provided by Fiserv, shall
review all reports furnished by Fiserv for accuracy, and shall work
with Fiserv to reconcile any out of balance conditions. Client shall
determine and be responsible for the authenticity and accuracy of all
information and data submitted to Firserv.
7. Ownership and Confidentiality.
(a) Client Information. Fiserv agrees to hold as confidential plans,
customer lists, information, and other proprietary material ("Client
Confidential Information") received from Client by Fiserv. All such
Client Confidential Information should be marked with a restrictive
legend. If such Client Confidential Information is not marked with
such legend or is disclosed orally, then the Client Confidential
Information must be identified as confidential at the time of
disclosure and written confirmation thereof must be promptly provided.
"Client Confidential Information" shall also include information and
data concerning the business and financial records of Client's
customers prepared by or for Fiserv, or used in any way by Fiserv in
connection with the provision of Fiserv Services. All Client
Confidential Information shall remain the property of the Client,
including master and transaction data files. Client Confidential
Information will be returned to Client at the termination or
expiration of this Agreement.
Firserv will use the same care and discretion to avoid disclosure of
Client Confidential Information as it uses with its own similar
information that it does not wish disclosed, but in no event less than
a reasonable standard of care. Fiserv may use Client Confidential
Information for any purpose that does not violate such obligation of
confidentiality. Fiserv may disclose Client Confidential Information
to (i) its employees and employees of its affiliates who have a need
to know; and (ii) any other party with Client's written consent.
Before disclosure to any of the above parties, Fiserv will have a
written agreement with such party sufficient to require that party to
treat Client Confidential Information in accordance with this
Agreement. Fiserv may disclose Client Confidential Information to the
extent required by law. However, Fiserv agrees to give Client prompt
notice and make a reasonable effort to obtain a protective order.
Client Confidential Information continues to be subject to this
Agreement for two (2) years following the date of disclosure.
No obligation of confidentiality applies to any Client Confidential
Information that Fiserv (i) already possesses without obligation of
confidentiality; (ii) develops independently; (iii) rightfully
receives without obligation of confidentiality from a third party. No
obligation of confidentiality applies to any Client Confidential
Information that is, or becomes, publicly available without breach of
this Agreement. In addition, no obligation of confidentiality applies
to any ideas, concepts, know-how, or techniques contained in Client
Confidential Information that are related to Client's business
activities ("Client Business Knowledge"). However, this does not give
Fiserv the right to disclose, except as set forth elsewhere in this
Agreement (i) the source of the Client Business Knowledge; (ii) any
financial, statistical, or personnel data; or (iii) the business plans
of the Client.
(b) Fiserv Information. Client agrees to hold as confidential all plans
information, research, development, trade secrets, and business
affairs (including that any Fiserv client, supplier, or affiliate) and
other proprietary material ("Fiserv Confidential Information")
received by Client from Fiserv. All such Fiserv Confidential
Information should be marked with a restrictive legend. If such Fiserv
Confidential Information is not marked with such legend or its
disclosed orally, then the Fiserv Confidential Information must be
identified as confidential at the time of disclosure and written
confirmation thereof must be promptly provided. Fiserv Confidential
Information" shall also include Fiserv's proprietary computer
programs, including custom software modifications, software
documentation and training aids, and all data, code, techniques,
algorithms, methods, logic, architecture, and designs embodied or
incorporated therein. All Fiserv Confidential Information shall remain
the property of Fiserv. Fiserv Confidential Information shall be
returned to Fiserv at the expiration or termination of this Agreement.
Client will use the same care and discretion to avoid disclosure of
Fiserv Confidential Information as it uses with its own similar
information that it does not wish disclosed, but in no event less than
a reasonable standard of care. Client will not use Fiserv Confidential
Information except in connection with Fiserv Services under this
Agreement. Client may disclose Fiserv Confidential Information to (i)
its employees who have a need to know; and (ii) any other party with
Fiserv's written consent. Before disclosure to any of the above
parties, Client will have a written agreement with such party
sufficient to require that party to treat Fiserv Confidential
Information in accordance with this Agreement. Client may disclose
Fiserv Confidential Information to the extent required by law.
However, Client agrees to give Fiserv prompt notice and make a
reasonable effort to obtain a protective order. The provisions of this
paragraph survive any termination or expiration of this Agreement.
No obligation of confidentiality applies to any Fiserv Confidential
Information that Client (i) already possesses without obligation of
confidentiality; (ii) develops independently; (iii) rightfully
receives without obligation of confidentiality from a third party. No
obligation of confidentiality applies to any Fiserv Confidential
Information that is, or becomes, publicly available without breach of
this Agreement. In addition, no obligation of confidentiality applies
to any ideas, concepts, know-how, or techniques contained in Fiserv
Confidential Information that are related to Fiserv's business
activities ("Fiserv Business Knowledge"). However, this does not give
Client the right to disclose, except as set forth elsewhere in this
Agreement (i) the source of the Fiserv Business Knowledge; (ii) any
financial, statistical, or personnel data; or (iii) the business plans
of Fiserv.
(c) Fiserv System. The Fiserv System contains information and computer
software that are proprietary and confidential information of Fiserv,
its suppliers, and licensors. Client agrees not to attempt to
circumvent the devices employed by Fiserv to prevent unauthorized
access to the Fiserv System, including, but not limited to,
alterations, decompiling, disassembling, modifications, and reserve
engineering thereof.
(d) Confidentiality of this Agreement. Fiserv and Client agree to keep
confidential the prices, terms and conditions of this Agreement,
without disclosure to third parties.
8. Regulatory Agencies, Regulations and Legal Requirements.
(a) Client Files. The records maintained and produced for client in the
performance of this Agreement (the "Client Files") may be subject to
examination by such Federal, State, or other governmental regulatory
agencies as may have jurisdiction over the Client's business to the
same extent as such records would be subject if they were maintained
by Client on its own premises. Client agrees that Fiserv is authorized
to give all reports, summaries, or information contained in or derived
from the data in the possession of Fiserv relating to Client when
formally requested to do so by an authorized regulatory or government
agency.
(b) Compliance with Regulatory Requirements. Client agrees to comply with,
and shall be responsible for complying with, applicable regulatory and
legal requirements, if applicable, including with limitation:
(i) submitting a copy of this Agreement to the appropriate regulatory
agencies prior to the date Services commence;
(ii) providing adequate notice to the appropriate regulatory agencies
of the termination of this Agreement or any material changes in
Services;
(iii)retaining records of its accounts as required by regulatory
authorities;
(iv) obtaining and maintaining, at its own expense, any Fidelity Bond
required by any regulatory or governmental agency; and (v)
maintaining, at its own expense, such casualty and business
interruption insurance coverage for loss of records from fire,
disaster, or other causes, and taking such precautions regarding
the same, as may be required by regulatory authorities.
9. Warranties.
(a) Fiserv Warranties. Fiserv represents and warrants that:
(i)(A)the Services will conform to the specifications set forth in
the Exhibits; (B) Fiserv will perform Client's work accurately
provided that Client supplies accurate data and follows the
procedures described in all Fiserv documentation, notices, and
advices; (C) Fiserv personnel will exercise due care in the
provision of Services; and (D) the Fiserv System will comply in
all material respects with all applicable Federal and State
regulations governing the Services. In the event of an error or
other default caused by any Fiserv personnel, systems, or
equipment, Fiserv shall correct the data and/or reprocess the
affected report at no additional cost to Client. Notwithstanding
any other provision of this Agreement, Client's exclusive remedy
pertaining to this Agreement and the Services rendered shall be
recomputation of affected accounts or items. Client agrees to
supply Fiserv with a written request for correction of the error
within seven (7) days after Client's receipt of the work
containing the error. Work reprocessed due to errors in data
supplied by Client, on Client's behalf by a third party, or by
Client's failure to follow procedures set forth by Fiserv shall
be billed to Client at the then current Fiserv time and material
rates.
(ii) it owns or has a license to furnish all equipment or software
comprising the Fiserv System. Fiserv shall indemnify Client and
hold it harmless against any claim or action that alleges that
the use of the Fiserv System infringes a United States patent,
copyright, or other proprietary right of a third party. Client
agrees to notify Fiserv promptly of any such claim and grants to
Fiserv the sole right to control the defense and disposition of
all such claims. Client shall provide Fiserv with reasonable
cooperation and assistance in the defense of any such claim.
THE WARRANTY STATED ABOVE IS A LIMITED WARRANTY AND IS THE ONLY
WARRANTY MADE BY FISERV. FISERV DOES NOT MAKE, AND CLIENT HEREBY
EXPRESSLY WAIVES, ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE STATED
EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF
FISERV FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE
DELIVERY, USE, OR PERFORMANCE OF FISERV SERVICES.
(b) Client Warranties. Client represents and warrants that: (A) no
contractual obligations exist that would prevent Client from entering
into this Agreement; (B) it has complied with all applicable
regulatory requirements; and (C) Client has requisite authority to
execute, deliver, and perform this Agreement. Client will indemnify
and hold harmless Fiserv, its officers, directors, employees, and
affiliates against any claims or actions arising out of (x) the use by
Client of the Fiserv System in a manner other than that provided in
this Agreement or in the operating instructions supplied by Fiserv to
Client and (y) any and all claims by third parties through Client
arising out of the performance and non-performance of services by
Fiserv, provided that the indemnity listed in clause (y) hereof shall
not preclude Client's recovery of direct damages pursuant to the terms
and subject to the limitations of this Agreement.
10. Limitations of Liability; Indemnification.
(a) General. IN NO EVENT SHALL FISERV BE LIABLE FOR LOSS OF GOODWILL, OR
FOR SPECIAL, INDIRECT, INCIDENTIAL, OR CONSEQUENTIAL DAMAGES ARISING
FROM CLIENT'S USE OF FISERVE'S SERVICES, OF FISERVE'S SUPPLY OF
EQUIPMENT OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT
OR IN CONTRACT. CLIENT MAY NOT ASSERT ANY CLAIM AGAINST FISERV MORE
THAN TWO (2) YEARS AFTER SUCH CLAIM ACCRUED. FISERV'S AGGREGATE
LIABLITY FOR ANY AND ALL CAUSES OF ACTION RELATING TO SERVICES SHALL
BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO FISERV FOR THE SERVICES
RESULTING IN SUCH LIABILITY IN THE TWO (2) MONTH PERIOD PRECEDING THE
DATE THE CLAIM ACCRUED. FISERV'S AGGREGATE LIABLITY FOR A DEFAULT
RELATING TO EQUIPMENT OF SOFTWARE SHALL BE LIMITED TO THE AMOUNT PAID
FOR THE EQUIPMENT OR SOFTWARE.
(b) Lost Records. If Client's records of other data submitted for
processing are lost or damaged as a result of any failure by Fiserv,
its employees, or agents to exercise reasonable care to prevent such
loss of damage, the liability of Fiserv on account of such loss or
damages shall not exceed the reasonable cost of reproducing such
records or data from exact duplicates thereof in Client's possession.
11. This section intentionally left blank.
12. Disaster Recovery.
(a) General. Fiserv maintains a disaster recovery service plan (the
"Disaster Recovery Service Plan") for each Service provided by Fiserv.
A "Disaster" shall mean any unplanned interruption of the operations
of or inaccessibility to the Fiserv data center in which Fiserv, using
reasonable judgment, requires relocation of processing to a primary
recovery location. Fiserv shall notify Client as soon as possible
after it deems a service outage to be a Disaster. Fiserv shall move
the processing of Client's standard on-line services to a primary
recovery location as expeditiously as possible and shall coordinate
the cut-over to back-up telecommunication facilities with the
appropriate carriers. Client shall maintain adequate records of all
transactions during the period of service interruption and shall have
personnel available to assist Fiserv in implementing the switchover to
the primary recovery location. During a Disaster, optional or
on-request services shall be provided by Fiserv only to the extent
adequate capacity exists at the primary recovery location and only
after stabilizing the provision of base on-line services.
(b) Data Communications. Fiserv shall work with Client to establish a plan
for alternative data communications in the event of a Disaster.
(c) Annual Test. Fiserv shall test its Disaster Recovery Service Plan
annually. Client agrees to participate in and assist Fiserv with such
test, if requested by Fiserv. Test results will be made available to
Client's management, regulators, internal and external auditors, and
Client's insurance underwriters, upon request.
(d) Client Plans. Fiserv agrees to release the information necessary to
allow Client to develop a disaster contingency plan that operates in
concert with the Disaster Recovery Service Plan.
(e) No Warranty. Client understands and agrees that the Disaster Recovery
Service Plan is designed to minimize, but not eliminate, risks
associated with a Disaster affecting the Fiserv data center supplying
the Services. Fiserv does not warrant that service will be
uninterrupted or error free in the event of a Disaster; no performance
standards shall be applicable for the duration of a Disaster. Client
maintains responsibility for adopting a disaster recovery plan
relating to disasters affecting Client's facilities and for securing
business interruption insurance or other insurance as necessary for
Client's protection.
13. Termination.
(a) Material Breach. Expect as provided elsewhere in this Section 13,
either party may terminate this Agreement in the event of a material
breach by the other party not cured within ninety (90) days following
written notice stating, with particularity and in a reasonable detail,
the nature of the claimed breach.
(b) Failure to Pay. In the event any invoice remains unpaid by Client
thirty (30) days after its due date, or Client has deconverted any of
its data from the Fiserv System without prior written consent from
Fiserv, Fiserv, at its sole option, may terminate this Agreement
and/or Client's access to use of the Fiserv Services. Any invoice
submitted by Fiserv shall be deemed correct unless Client provides
written notice to Fiserv within fifteen (15) days of the invoice date
specifying the nature of the disagreement. Remedies contained in this
Section 13 are cumulative and are in addition to other rights and
remedies available to Fiserv under this Agreement or otherwise.
(c) Defaults. If Client:
(ii) defaults in the payment of any sum of money due hereunder;
(iii) breaches this Agreement in any material respect or otherwise
defaults in any material respect in the performance of any of
its obligations under this Agreement; or
(iv) commits an act of bankruptcy or becomes the subject of any
proceeding under the Bankruptcy Act or becomes insolvent or if
any substantial part of Client's property becomes subject to any
levy, seizure, assignment, application, or sale for or by any
creditor or governmental agency;
then, in any such event, Fiserv may, at its sole option, upon written
notice, terminate this Agreement and be entitled to recover from Client
as liquidated damages an amount equal to the present value of all
payments remaining to be made hereunder for the remaining term of the
Initial Term or any renewal term of this Agreement. For purposes of the
preceding sentence, present value shall be computed using the "prime"
rate (as published in the Wall Street Journal) in effect at the date of
termination and "all payments remaining to be made" shall be calculated
based on the average bills for the three (3) months immediately
preceding the date of termination. Client agrees to reimburse Fiserv
for any expenses Fiserv may incur, including reasonable attorneys'
fees, in taking any of the foregoing actions. The remedies contained in
this subsection are cumulative and in addition to all other rights and
remedies available to Firserv under this Agreement, by law or
otherwise.
(d) Convenience. Client may terminate this Agreement during any term by
paying a termination fee based on the remaining unused term of this
Agreement, the amount to be determined by multiplying the Client's
largest monthly invoice for each of the Fiserv Services received by
the Client during the term of eighty (80) percent times the remaining
months of the term, plus any unamortized conversion fees of third
party costs existing on Fiserv's books on the date of termination.
Client understands and agrees that Fiserv losses incurred as a result
of early termination of the Agreement would be difficult or impossible
to calculate as of the effective date of termination since they will
vary based on, among other things, the number of clients using the
Fiserv System on the date the Agreement terminates. Accordingly, the
amount set forth in the fist sentence of this subsection represents
Client's agreement to pay and Fiserv's agreement to accept as
liquidated damages (and not as a penalty) such amount for any such
Client termination for convenience.
(e) Merger. In the event of a merger between Client and another
organization in which Client is not the surviving organization and
where the other organization was not previously a user of Fiserv
services similar to the Services being provided hereunder, Fiserv will
allow an early termination of this Agreement upon the following terms
and conditions;
(i) Written notice must be given three (3) months in advance,
specifying the termination date;
(ii) Fiserv may specify a deconversion date (not more than thirty
(30) days after the requested termination date), based on its
previous commitments and work loads; and
(iii) Fiserv may charge a termination fee the first 36 months of this
contract and may not charge a termination fee after the 36th
month of this contract in accordance with subsection (d) above
if client is required or merges with another institution.
(f) Return of Data Files. Upon expiration or termination of this
Agreement, Fiserv shall furnish to Client such copies of Client's data
files ("Client Files") as Client may request in Fiserv's standard
machine readable format form along with such information and
assistance as is reasonable and customary to enable Client to
deconvert from the Fiserv System, provided, however, that Client
consents and agrees and authorizes Fiserv to retain Client Files until
(i) Fiserv has been paid in full for all Services provided hereunder
through the date such Client Files are returned to Client, and has
been paid any and all other amounts that are due or will become due
under this Agreement, including, but not limited to, data
communication lease obligations, if any; (ii) Fiserv has been paid its
then standard rates for providing the services necessary to return
such Client Files; (iii) if this Agreement is being terminated, Fiserv
has been paid any applicable termination fee pursuant to subsection
(c), (d), or (e) above; and (iv) Client has returned to Fiserv all
Fiserv Confidential Information if requested by Fiserv. Unless
directed by Client in writing to the contrary, Fiserv shall be
permitted to destroy Client Files any time after thirty (30) days from
the final use of Client Files for processing.
(g) Miscellaneous. Client understands and agrees that Client is
responsible for the deinstallation and return shipping of any Fiserv
owned equipment located on Client's premises.
14. Arbitration.
(a) General. Except with respect to disputes arising from a
misappropriation or misuse of either party's propriety rights, any
dispute of controversy arising out of this Agreement, or its
interpretation, shall be submitted to and resolved exclusively by
arbitration under the rules then prevailing of the American
Arbitration Association, upon written notice of demand for arbitration
by the party seeking arbitration, setting forth the specifics of the
matter in controversy or the claim being made. The arbitration shall
be heard before any arbitrator mutually agreeable to Client and
Fiserv; provided, that if Client and Fiserv cannot agree on the choice
of an arbitrator within ten (10) days after the first party to seek
arbitration has given written notice, then the arbitration shall be
heard by three arbitrators, one to be chosen by Client one to be
chosen by Fiserv, and the third to be chosen by those two arbitrators.
A hearing on the merits of all claims for which arbitration is sought
by either party shall be commenced not later than sixty (60) days from
the date demand for arbitration is made by the fist party seeking
arbitration. The arbitrator(s) must render a decision within ten (10)
days after the conclusion of such hearing. Any award in such
arbitration shall be final and binding upon the parties and the
judgment thereon may be entered in any court of competent
jurisdiction.
(b) Applicable Law. The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C. 1-16. The arbitrators shall apply the
substantive law of the State of Wisconsin, without reference to
provisions relating to conflict of laws. The arbitrators shall not
have the power to alter, modify, amend, add to, or subtract from any
term or provision of this Agreement, nor to rule upon or grant any
extension, renewal, or continuance of this Agreement. The arbitrators
shall have the authority to grant any legal remedy available had the
parties submitted this dispute to a judicial proceeding.
(c) Situs. If arbitration is required to resolve any disputes between the
parties, the proceedings to resolve the first such dispute shall be
held in Milwaukee, Wisconsin, the proceedings to resolve the second
such dispute shall be held in Des Moines, Iowa, and the proceedings to
resolve any subsequent disputes shall alternate between Milwaukee,
Wisconsin, and Des Moines, Iowa.
15. Insurance. Fiserv carries the following types of insurance policies written
by a carrier or carriers rated "A" or above by Best:
(i) Comprehensive General Liability in amount not less than $1 million per
occurrence for claims arising out of bodily injury and property
damage;
(ii) Commercial Crime covering employee dishonesty in an amount not less
than $5 million;
(iii)All-risk property coverage including Extra Expense and Business
Income coverage; and
(iv) Workers Compensation as mandated or allowed by the laws of the state
in which the services are being performed, including $500,000 coverage
for Employer's Liability.
16. Audit. Fiserv employs an internal audit responsible for ensuring the
integrity of its data processing environments and internal controls. In
addition, Fiserv provides for periodic independent audits of its
operations. Fiserv shall provide client with a copy of the audit of the
Fiserv data center serving Client within a reasonable time after its
completion and shall charge each client a fee based on the pro rata cost of
such audit. Fiserv shall also provide a copy of such audit to the
appropriate regulatory agencies, if any, having jurisdiction over Fiserv's
provision of Services hereunder.
17. General.
(a) Binding Agreement. This Agreement is binding under the parties and
their respective successors and permitted assigns. Neither this
Agreement nor any interest may be sold, assigned, transferred, pledged
or otherwise disposed of by Client, whether pursuant to change of
control or otherwise, without the prior written consent of Fiserv.
Client agrees that Fiserv may subcontract any of the Services to be
performed under this Agreement. Any such subcontractors shall be
required to comply with all of the applicable terms and conditions of
this Agreement.
(b) Entire Agreement. This Agreement includes its Exhibits, which were
expressly incorporated herein by reference, constitutes the complete
and exclusive statement of the agreement between the parties as to the
subject matter hereof and supersedes all previous agreements with
respect thereto. Modifications of this Agreement must be in writing
and signed by duly authorized representatives of the parties. Each
party hereby acknowledges that is has not entered into this Agreement
in reliance upon any representation made by the other party not
embodied herein. In the event of any of the provisions of any Exhibit
or Schedule hereto are in conflict with any of the provisions of this
Agreement, the terms and provisions of this Agreement shall control
unless the Exhibit or Schedule in question expressly provides that its
terms and provisions shall control.
(c) Severability. If any provision of this Agreement is held to be
unenforceable or invalid, the other provisions shall continue in full
force and effect.
(d) Governing Law. This Agreement will be governed by the substantive laws
of the State of Wisconsin, without reference to provisions relating to
conflicts of laws. By entering into this Agreement, Fiserv agrees that
the Office of Thrift Supervision, FDIC, or other regulatory agencies
having authority over Client's operations shall have the authority and
responsibility provided to the regulatory agencies pursuant to the
Bank Service Corporation Act, 12 U.S.C., 1867(C) relating to service
performed by contract or otherwise.
(e) Force Majeure. Neither party shall be responsible for delays or
failures in performance resulting from acts reasonably beyond the
control of that party. (f) Notices. Any written notice required or
permitted to be given hereunder shall be given by; (i) Registered or
Certified Mail, Return Receipt Requested, postage prepaid; (ii) by
confirmed facsimile; or (iii) by nationally recognized courier service
to the other party at the addresses listed on the cover page of this
Agreement or to such other address or person as a party may designate
in writing.
(g) No Waiver. The failure of either party to insist on strict performance
of any of the provisions hereunder shall not be construed as the
waiver of any subsequent default of a similar nature.
(h) Financial Statements. Fiserv shall provide Client and the appropriate
regulatory agencies who so require a copy of Fiserv, Inc.'s audited
consolidated financial statements.
(i) Prevailing Party. The prevailing party in any arbitration, suit, or
action brought against the other party to enforce the terms of this
Agreement or any rights or obligations hereunder, shall be entitled to
receive its reasonable costs, expenses, and attorney's fees of bring
such arbitration, suit, or action.
(j) Survival. All rights and obligations of the parties under this
Agreement that, by their nature, do not terminate with the expiration
or termination of this Agreement shall survive the expiration or
termination of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date indicated below.
For Client: For Fiserv:
FISERV SOLUTIONS, INC.
West Des Moines State Bank d/b/a FISERV
0000 00xx Xxxxxx Regency West 0
Xxxx Xxx Xxxxxx, Xxxx 00000 0000 Xxxxxxxx Xxxxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000
By: ______________________________ By: _______________________________
Name: ____________________________ Name: Xxxxx X. Xxxxxx
-----------------------------
Title: ___________________________ Title: President
----------------------------
Date: _____________________________ Date: _____________________________
Account Processing Services
Client agrees with Fiserv0 as follows:
1. Services. Fiserv will provide Client the Account Processing Services (the
"Account Processing Services") specified in Exhibit A - 1 hereto.
2. Fees. Client shall pay Fiserv the fees and other charges for the Account
Processing Services specified in Exhibit A - 2 hereto.
3. Responsibility for Accounts. Client shall be responsible for balancing its
accounts each business day and notifying Fiserv immediately of any errors
or discrepancies. Provided that Client immediately notifies Fiserv of any
discrepancy in Client's accounts, Fiserv shall, at its expense, promptly
recompute accounts affected by discrepancies solely caused by Fiserv
computer of software systems or provide for another mutually agreeable
resolution. Fiserv will use its commercially reasonable efforts to correct
errors attributable to Client or other third party servicers to Client.
4. Reconstruction of Error Conditions. Reconstruction of error conditions
attributable to Client or to third parties acting on Client's behalf will
be done at prevailing rates.
5. Annual Histories. Fiserv currently maintains annual histories, where
applicable, for each of its Clients. These histories can be used to
reconstruct Client files in an emergency. However, in order to permit
prompt and accurate reconstruction of accounts, Client agrees to retain at
all times and make available to Fiserv upon request, the most recent data
printout(s) received from Fiserv, together with copies or other accurate
and retrievable records of all transactions to be reflected on the next
consecutive printout(s).
6. Hours of Operation. The Account Processing Services will be available for
use by Client during standard Fiserv business hours, excluding company
holidays, as specified in Exhibit A -3 hereto. The Account Processing
Services may be available during additional hours, during which time Client
may use the Services at its option and subject to additional charges.
7. This section intentionally left blank.
8. This section intentionally left blank.
9. Protection of Data. For the purpose of compliance with applicable
government regulations, Fiserv has developed an operations backup center,
for which Client has agreed to pay the charges indicated in Exhibit A - 2.
Fiserv tests the procedure periodically to ensure the data center's
compliance. Copies of transactions files are maintained by Fiserv off
premises in secured vaults.
10. Processing Priority. Fiserv does not subscribe to any processing priority;
all users received equal processing consideration.
11. On-Line Security. Fiserv provides "on-line" security via utilization of
leased lines with various protocol.
12. Forms and Supplies. Client assumes and will pay the charges for all
customized forms, supplies, and delivery charges.
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit A to the
Agreement to be executed by their duly authorized representatives as of the date
indicated below.
For Client: For Fiserv:
FISERV SOLUTIONS, INC.
West Des Moines State Bank d/b/a FISERV
0000 00xx Xxxxxx Regency West 0
Xxxx Xxx Xxxxxx, Xxxx 00000 0000 Xxxxxxx Xxxxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000
By: ______________________________ By: _______________________________
Name: ____________________________ Name: Xxxxx X. Xxxxxx
-----------------------------
Title: _____________________________ Title: President
----------------------------
Date: _____________________________ Date: _____________________________
Exhibit A - 1
Account Processing Services
Fiserv will provide Client with the following Account Processing Services:
FIS Applications
Central Information System
Demand Deposit Account System
Savings Account System
Certificate of Deposit Accounting System
Loan Accounting System
Smart Reports
Premier II
FMS General Ledger
FMS Smart Reports
Standard Core Processing Modules
Exception Item Processing Module
Item Entry System
Currency Transaction System
Retirement Reporting Module
Automated Credit Reporting Insurance Reporting Module
Safe Deposit Accounting (CIS Application)
Bulk Filing Module
ATM File Transfer Module
ATM File Transfer Interface
Exhibit A - 2
Account Processing Services
Fiserv will provide Client with the following Account Processing Services:
Total accounts is calculated by adding total DDA, Savings, CODs and Loan
accounts. The $.52 per account includes processing the following ITI
applications:
FIS Applications
Central Information System
Demand Deposit Account System
Savings Account System
Certificate of Deposit Accounting System
Loan Accounting System
Smart Reports (20 per month)
Premier II
FMS General Ledger
FMS Smart Reports (5 per month)
Standard Core Processing Modules
Exception Item Processing Module
Item Entry System
Current Transaction System
Retirement Reporting Module
Automated Credit Reporting Insurance Reporting Module
Safe Deposit Accounting (CIS Application)
Bulk Filing Module
ATM File Transfer Module
ATM File Transfer Interface
Exhibit A - 3
Hours of Operation
The Fiserv Data Center will be in operation for On-Line Accounting Applications
(as defined in Exhibit A - 1) in accordance with the following:
Monday 7:00 A.M. - 6:00 P.M. 6:00 P.M. - 10:00 P.M. (Inquiry Only)
Tuesday 7:00 A.M. - 6:00 P.M. 6:00 P.M. - 10:00 P.M. (Inquiry Only)
Wednesday 7:00 A.M. - 6:00 P.M. 6:00 P.M. - 10:00 P.M. (Inquiry Only)
Thursday 7:00 A.M. - 6:00 P.M. 6:00 P.M. - 10:00 P.M. (Inquiry Only)
Friday 7:00 A.M. - 6:00 P.M. 6:00 P.M. - 10:00 P.M. (Inquiry Only)
Saturday 7:00 A.M. - 1:00 P.M.
Saturday 1:00 P.M. - 8:00 P.M. (Inquiry Only) $100.00 per month
Sunday 10:00 A.M. - 6:00 P.M. (Inquiry Only) for Saturday P.M. and Sunday
The Fiserv Data Center will be in operation to accept remote data capture files
from 7:00 a.m. to 10:00 p.m. Monday through Friday and 8:00 a.m.- 1:00 p.m.
Saturdays.
All times stated are in accordance with prevailing local times for the Fiserv
Data Center. The Fiserv Data Center will observe national holidays, and will be
closed for on-line operations.
Exhibit B
Item Processing Services
Client agrees with Fiserv as follows:
1. Services. Fiserv will provide Client the Item Processing Services (the
"Item Processing Services") specified in Exhibit B - 1 hereto. Client
agrees that Fiserv shall be the sole provider of Item Processing or similar
services. Client shall not contract with another vendor or attempt to
provide in-house any such Item Processing Services or similar services
without the written consent of Fiserv.
2. Fees. Client shall pay Fiserv the fees and other charges for the Item
Processing Services specified in Exhibit B-2 hereto. Fiserv agrees to give
at least thirty (30) days' notice to Client of any changes in the rules and
procedures established for processing items in the Exhibit of costs, fees,
and charges, unless such changes are caused by changes made the Federal
Reserve System or otherwise beyond the control of Fiserv, not permitting
Fiserv to give such advance notice. Fiserv reserves the right to make such
changes without notice to the Exhibits as may be necessary to cover any
increases in the costs and charges of the Federal Reserve System or in
other costs and charges beyond the control of Fiserv, including changes
required by applicable law or regulatory activity.
3. Performance Standards. Fiserv will perform the Item Processing Services in
accordance with the performance standards specified in Exhibit B - 3
hereto.
4. Reconciliation of Debit and Credit Errors in Statements or Accounts. Client
shall be responsible for balancing its accounts each business day and
notifying Fiserv immediately of an errors or discrepancies. If Fiserv
discovers an error or defect in any statement at any time(s) (it being
understood that Fiserv shall be under no duty to discover any such error or
defect), Fiserv is authorized, in its sole discretion, to correct any such
error or defect and to make any adjustments to such statement in order to
correct any such error or defect.
5. No Fiduciary Relationship. Fiserv shall perform such Item Processing
Services for which Client shall subscribe as agent of Client, and Fiserv
shall not have by reason to this Agreement a fiduciary relationship with
respect to Client.
6. Lost, Destroyed and Misplaced Items. Fiserv assumes no liability for any
item lost, destroyed, or misplaced while in transit before the item
physically arrives at the premises of Fiserv and is received by Fiserv. In
the event any items are lost, destroyed, or misplaced, and such event is
not due to gross negligence or international misconduct by Fiserv, Client
shall be solely responsible for the costs and expenses incurred by Fiserv
in reconstructing any such items and for any damages or other losses that
may be incurred by Fiserv due to the collection of such items. In the event
Fiserv negligently loses, destroys, or misplaces deposited items after
acceptance of said deposit, Fiserv shall be liable only for the reasonable
reconstruction costs of the deposit. Reasonable reconstruction costs shall
be only those costs which arise from the reconstruction of a microfilmed
deposit. Fiserv shall not be liable for the reconstruction costs associated
with a deposit for which Client can provide a microfilmed record of such
item(s) contained in the deposit. In no event shall Fiserv be liable for
the face value of any lost or missing deposit item(s).
7. Governmental Regulation. This Agreement shall be governed by and is subject
to: the applicable laws, regulations, rules, terms and conditions, as
presently in effect or hereafter amended or adopted, of the United States
of America, the State of Wisconsin, the Federal Reserve Board, the Federal
Reserve Banks, the Federal Housing Finance Board, and any other
governmental agency or instrumentality having jurisdiction over the subject
matter of this Agreement. Client agrees to abide by such requirements and
to execute and deliver such agreements, documents, or other forms as may be
necessary to comply with the provisions hereof, including, without
limitation, agreements to establish Fiserv as Agent of the Client for
purposes of delivery of items processed hereunder from or to the Federal
Reserve Banks. Any such agreements shall be made a part of this Agreement
and are incorporated herein. A change or termination of such laws,
regulations, rules, terms, conditions, and agreements shall constitute,
respectively, a change or termination as to this Agreement.
8. Regulatory Authority. Client data and records shall be subject to
regulation and examination by government supervisory agencies to the same
extent as if such information were on Client's premises.
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit B to be executed
by their duly authorized representatives as of the date indicated below.
For Client: For Fiserv:
FISERV SOLUTIONS, INC.
West Des Moines State Bank d/b/a FISERV
0000 00xx Xxxxxx Regency West 0
Xxxx Xxx Xxxxxx, Xxxx 00000 0000 Xxxxxxxx Xxxxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000
By: ______________________________ By: _______________________________
Name: ____________________________ Name: Xxxxx X. Xxxxxx
-----------------------------
Title: _____________________________ Title: President
----------------------------
Date: _____________________________ Date: _____________________________
Exhibit B - 1
Item Processing Services
Fiserv will provide Client with the following Item Processing Services:
Over-the-Counter
Inclearings
NON-IMAGE STATEMENTS
Back Office Services:*
Qualified Returns
Large Dollar Returns
Photocopies
Facsimile
Item Destruction
Research
Exceptions
Postage
Encoding
Statement Rendering
Statement Inserts
IMAGE STATEMENTS
Scan
Reject Item Correction
Off-lien Archive for Cycle
Non-Month End Cycle
Month End Cycle
Additional Sides Printed
CHECK IMAGE OPTIONS
Advertising Inserts
Insert Scanned Marketing Image
Check Storage & Destruction
Special Cuts
IMAGE ARCHIVE
Scan
Reject Item Correction
Archive (5 sec. + Response)
Archive (15 sec. + Response)
Archive (3 min. + Response)
Archive (Next Day Response)
Dial-Up Connect Time
On-Line Image Inquiry
Image Library Software
IMAGE DISTRIBUTION
Scan
Reject Item Correction
CD ROM
Image Library Software
* Bank Office Services are considered as a single processing service and must
be used as a package. Individual line items cannot be selected.
Exhibit B - 2
Item Processing Services Fees
Fiserv will provide Client with the following Item Processing Services for the
fees and prices indicated:
Over-the-Counter .014 per item
Inclearings .012 per item
NON-IMAGE STATEMENTS
Back Office Services:*
Qualified Returns 1.50 per return
Large Dollar Returns 2.50 per return
Photocopies 1.25 per page
Facsimile .35 per item
Research 25.00 per hour
Item Destruction pass through
Exceptions 0.05 per exception
Postage pass through as discounted rates
Statement Rendering .06 per account
Statement Inserts .006 per insert
IMAGE STATEMENTS
Scan Per Item - Front and Rear $0.00800 0 to 1,000,000 per item
$0.00700 1,000,001 to 3,000,000
per item
$0.00600 3,000,001 + per item
Reject Item Correction $0.10000 per item
Off-line Archive for Cycle $0.00100 per item
Non-Month End Cycle $0.60000 per account (5 sides)
Month End Cycle $1.25000 per account (9 sides)
Additional Sides Printed $0.08 per side
CHECK IMAGE OPTIONS
Advertising Inserts $0.015 per insert
Insert Scanned Marketing Image $0.005 per insert
Check Storage & Destruction $0.01 per item
Special Cuts $10.00 per account
IMAGE ARCHIVE
Scan Per Item - Front and Rear $0.00800 0 to 1,000,000 per item
$0.00700 1,000,001 to 3,000,000
per item
$0.00600 3,000,001 + per item
Reject Item Correction $0.10000 per item
Archive (5 sec. + Response) $0.00400 per item
Archive (15 sec. + Response) $0.00050 per item
Archive (3 min. + Response) $0.00025 per item
Archive (Next Day Response) $0.00010 per item
Dial-Up Connect Time $4.50 per hour
On-Line Image Inquiry $.90 per inquiry
Image Library Software $500.00 per station (one time)
IMAGE DISTRIBUTION
Scan Per Item - Front and Rear $0.0080 0 to 1,000,000 per item
$0.00700 1,000,001 to 3,000,000
per item
$0.00600 3,000,001+ per item
Reject Item Correction $0.10000 per item
CD ROM $10.000 per ROM
Image Library Software $500.000 per station (one time)
* Back Office Services are considered as a single processing service and must
be used as a package. Individual line items cannot be selected.
Exhibit C
Adjustment of Fees
The fees set forth for each of the respective types of Services set forth in
Exhibit A, B and H shall not subject to adjustment by Fiserv for the term of the
contract, except to the extent that an adjustment is required by any
governmental, judicial or administrative authority to which Client or Fiserv is
subject.
Exhibit H
Monthly Fees
Optional Products:
Teller Systems Interface
PLUS-Commercial Bank .02 per account
PLUS-Commercial Bank
Database (Transaction Set)
Platform Systems Interface .02 per account
Platform Transfer Module
Batch Loan Interface
Asset Liability Management System 625.00 per month
Bond Accounting System 425.00 per month
Fixed Asset System 135.00 per month
Stockholder Accounting System 100.00 per month
Accounts Payable System 170.00 per month
Holding Company Reporting Module 200.00 per month
Federal Call Reporting Module 190.00 per month
On-Line Loan Collections Module 275.00 per month
Interactive Loan Interface .02 per account
Image Statement/Archive Module 400.00 per month
Year End Tax Statement .25 each
(Includes printing at Fiserv)
Audit Verification .30 each
Audit Verifications per application 50.00 minimum
Smart Reports 25.00 each
ATM Processing .02 per transaction
ExecuBanc (Requires EBBM) 1,150.00
PCBanc (Requires EBBM and hardware quote) 900.00
.03/transaction
425.00
Xxxx Payment Module .03/transaction
On-Line Teller Machine 300.00
Electronic Banking Base Module 130.00
Paperless Item Module (ACH) .03/transaction
Automated Returns 1.00/return
Voice Response Transaction .02/transaction
Voice Response Line Fee (4 lines) 160.00
Voice Response Usage Fee 652.00
Exhibit H
Monthly Fees
Optical Disk
Monthly File Transfer Fee .03/account
Dial Up Telephone Fee pass through
Microfiche 2.50/original
Microfiche copies .30/copy
Line Cost (7 locations) 700.00 per month
Third Party Review
The cost of this service is calculated for all Fiserv information processing
clients based on a pro-rata percentage of assets as reported at December 31 of
the year preceding the review.
Total assets of each client are divided by the total assets of all clients. This
percentage is multiple by total expenses incurred by Fiserv in conducting the
review to determine the individual client's fee.
Each client receives a copy of the review for use in complying with regulatory
and auditor's requirements.
Deconversion Services
Per Application $1,500.00 each
PLUS Programming at quoted rates and out-of-pocket expenses
AMENDMENT TO THE AGREEMENT
BETWEEN
Fiserv Solutions, Inc.
D/b/a Fiserv-Des Moines
0000 Xxxxxxx Xxxxxxx
Regency West 0
Xxxx Xxx Xxxxxx, XX 00000-0000
AND
West Des Moines State Bank
0000 00xx Xxxxxx
Xxxx Xxx Xxxxxx, XX 00000
Data Processing Services Agreement is amended to include the following:
Section (6) Client Obligation
Subsection (d) Client shall be responsible for ensuring that its systems are or
will be Year 2000 compliance and capable of passing and/or accepting date
formats from and/or to the Fiserv System.
Section (9) Warranties
Subsection (a)(iii) the Fiserv system is or will be Year 2000 compliance.
All other terms and conditions remain the same.
West Des Moines State Bank Fiserv Solutions, Inc.
D/b/a Fiserv-Des Moines
By: By:
Name: Name:
Title: Title:
Date: Date:
