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Exhibit 10.4
OUTSOURCING AGREEMENT
BY AND BETWEEN
THE JACKSONVILLE BANK
and
XXXXXXXX & XXXXXX CORPORATION
acting through its division
M&I DATA SERVICES
DATED AS OF
May 13, 1998
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TABLE OF CONTENTS
Page
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1. DEFINITIONS...........................................................................................1
1.1 Background........................................................................................1
1.2 Definitions.......................................................................................1
1.3 References........................................................................................5
1.4 Interpretation....................................................................................5
2. TERM..................................................................................................5
2.1 Initial Term......................................................................................5
2.2 Extensions........................................................................................5
3. APPOINTMENT...........................................................................................6
3.1 Performance by M&I Affiliates.....................................................................6
3.2 Third Party Products/Services.....................................................................6
3.3 Proper Instructions...............................................................................6
4. CONVERSION............................................................................................6
4.1 Banking Applications..............................................................................6
4.2 Development of Conversion Plan....................................................................6
4.3 Conversion Resources..............................................................................7
4.4 Conversion Milestones.............................................................................7
5. TRUST SERVICES........................................................................................8
6. BANKING APPLICATIONS..................................................................................8
6.1 Services to be Rendered...........................................................................8
6.2 New Services......................................................................................8
6.3 Automated Clearing House Services.................................................................8
6.4 Home Banking and Internet Services...............................................................12
6.5 Branch Systems...................................................................................15
6.6 Visa Check/MasterMoney Card Services.............................................................15
6.7 EFT Services.....................................................................................16
7. FACILITIES MANAGEMENT................................................................................16
8. FEES.................................................................................................16
8.1 Fee Structure....................................................................................16
8.2 Conversion.......................................................................................17
8.3 Pricing and Operational Assumptions..............................................................17
8.4 Bankcard and EFT Services........................................................................17
8.5 Training and Education...........................................................................18
8.6 Excluded Costs...................................................................................18
8.7 Disputed Amounts.................................................................................18
8.8 Terms of Payment.................................................................................18
8.9 Modification of Terms and Pricing................................................................19
9. PERFORMANCE STANDARDS................................................................................19
9.1 General..........................................................................................19
9.2 Exclusive Remedy.................................................................................19
9.3 Incentive Credits................................................................................20
10. MODIFICATION OR PARTIAL TERMINATION............................,.....................................20
10.1 Modifications to Services.......................................................................20
10.2 Partial Termination by M&I......................................................................20
10.3 Partial Termination by Customer.................................................................21
10.4 Development of Custom Software..................................................................21
10.5 Millennium Compliance...........................................................................21
11. TERMINATION...................................................,......................................22
11.1 For Convenience or Default By Customer..........................................................22
11.2 For Cause.......................................................................................22
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11.3 For Insolvency..................................................................................22
12. SERVICES FOLLOWING TERMINATION.......................................................................23
12.1 Termination Assistance..........................................................................23
12.2 Continuation of Services........................................................................23
13. DAMAGES..............................................................................................23
13.1 Direct Damages..................................................................................23
13.2 No Consequential Damages........................................................................23
13.3 Equitable Relief................................................................................23
13.4 Limitation of Liability.........................................................................24
13.5 Liquidated Damages..............................................................................24
14. INSURANCE AND INDEMNITY..............................................................................24
14.1 Insurance.......................................................................................24
14.2 Indemnity.......................................................................................25
14.3 Indemnification Procedures......................................................................25
15. DISPUTE RESOLUTION...................................................................................26
15.1 Representatives of Parties......................................................................26
15.2 Continuity of Performance.......................................................................27
16. REPRESENTATIONS AND WARRANTIES.......................................................................27
16.1 By M&I..........................................................................................27
16.2 By Customer.....................................................................................28
17. CONFIDENTIALITY AND OWNERSHIP........................................................................28
17.1 Customer Data...................................................................................28
17.2 M&I Systems.....................................................................................28
17.3 Confidential Information........................................................................28
17.4 Obligations of the Parties......................................................................29
17.5 Security........................................................................................29
18. MANAGEMENT OF PROJECT................................................................................30
18.1 Account Representatives.........................................................................30
18.2 Reporting and Meetings..........................................................................30
18.3 Development Projects and Technical Support......................................................30
19. REGULATORY COMPLIANCE................................................................................30
20. DISASTER RECOVERY....................................................................................32
20.1 Services Continuity Plan........................................................................32
20.2 Relocation......................................................................................32
20.3 Resumption of Services..........................................................................32
20.4 Annual Test.....................................................................................32
21. GENERAL TERMS AND CONDITIONS.........................................................................32
21.1 Transmission of Data............................................................................32
21.2 Equipment and Network...........................................................................33
21.3 Reliance on Data................................................................................33
21.4 Data Backup.....................................................................................33
21.5 Balancing and Controls..........................................................................33
21.6 Use of Services.................................................................................34
21.7 Regulatory Assurances...........................................................................34
21.8 IRS Filing......................................................................................35
21.9 Affiliates......................................................................................35
21.10 Future Acquisitions............................................................................35
22. MISCELLANEOUS PROVISIONS.............................................................................36
22.1 Governing Law...................................................................................36
22.2 Venue and Jurisdiction..........................................................................36
22.3 Entire Agreement; Amendments....................................................................37
22.4 Assignment......................................................................................37
22.5 Relationship of Parties.........................................................................37
22.6 Notices.........................................................................................37
22.7 Headings........................................................................................38
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22.8 Counterparts....................................................................................38
22.9 Waiver..........................................................................................38
22.10 Severability...................................................................................38
22.11 Attorneys' Fees and Costs......................................................................39
22.12 Financial Statements...........................................................................39
22.13 Publicity......................................................................................39
22.14 Solicitation...................................................................................39
22.15 No Third Party Beneficiaries...................................................................39
22.16 Construction...................................................................................39
22.17 Force Majeure..................................................................................40
23. SOURCE CODE.........................................................................................40
23.1 Escrow..........................................................................................40
23.2 Copy of Source Code.............................................................................40
23.3 Cost of Escrow..................................................................................40
23.4 Customer's Right to Obtain the Source Code......................................................40
23.5 Use of Source Code..............................................................................41
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Schedules
1.2 Customer Affiliates
4.3 Conversion Plan
6.1 Services Schedule
6.4A Home Banking Schedule
8.1 Fee Schedule
9.1 Performance Standards
Exhibits
A ACH Authorization Agreement
B Attorney-in-Fact Appointment
C Affidavit
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OUTSOURCING AGREEMENT
This Outsourcing Agreement ("Agreement") is made as of the 13th day of
May, 1998, by and between The Jacksonville Bank, a Florida corporation
("Customer") and Xxxxxxxx & Ilsley Corporation, a Wisconsin corporation, acting
through its division, M&I Data Services ("M&I"). "Customer" shall include all
Affiliates receiving Services under this Agreement from M&I.
In consideration of the payments to be made and services to be
performed hereunder, the parties agree as follows:
1. DEFINITIONS
1.1 Background.
This Agreement is being made and entered into with reference to the
following facts:
A. Customer provides systems development and operations, data
processing, telecommunications and other information technology services for
itself, and on behalf of its customers.
B. M&I is a provider of data processing, systems development
and operations, corporate support and item processing, home banking, internet
banking, retail delivery services, trust data processing, and other services.
M&I desires to perform for Customer the outsourcing services described in this
Agreement.
C. In reliance on its own independent analysis, and after
careful evaluation of M&I's proposal and other alternatives, Customer has
selected M&I to provide the Services (as defined in Section 1.2) to Customer.
This Agreement documents the terms and conditions under which Customer agrees
to purchase and M&I agrees to provide the Services.
1.2 Definitions.
The following terms shall have the meaning ascribed to them in this
Section 1.2:
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A. "Account Representative" shall have the meaning set
forth in Section 18.1.
B. "ADP Services" shall mean the Accounts Data Processing
Services set forth in attached Schedule 6.
C. "Additional Term" shall mean any period of extension or
renewal of this Agreement established after the Initial Term pursuant to
Section 2.2 of this Agreement.
D. "Affiliate" shall mean, with respect to a party, any
entity at any time Controlling, Controlled by or under common Control with,
such party. Schedule 1.2 attached hereto identifies those Affiliates of
Customer for whom M&I shall provide Services under this Agreement, as of the
Effective Date.
E. "Change in Control" shall mean any event or series of
events by which (i) any person or entity or group of persons or entities shall
acquire Control of another person or entity or (ii) in the case of a
corporation, during any period of 12 consecutive months commencing before or
after the date hereof, individuals who at the beginning of such 12-month period
were directors of such corporation shall cease for any reason to constitute a
majority of the board of directors of such corporation.
F. "Commencement Date" shall mean the date on which
Conversion for Customer and all Affiliates identified on Schedule 1.2 has been
completed.
G. "Confidential Information" shall have the meaning set forth
in Section 17.3 of this Agreement.
H. "Contract Year" shall mean a period commencing on the
first day of the month in which the Commencement Date occurs (and each
anniversary thereof) and terminating on the last date of the preceding month
occurring one (1) year thereafter.
I. "Control" shall mean the direct or indirect ownership of
over 50% of the capital stock (or other ownership interest, if not a
corporation) of any entity or the possession, directly or indirectly, of the
power to direct the management and policies of such entity by
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ownership of voting securities, by contract or otherwise. "Controlling" shall
mean having Control of any entity and "Controlled" shall mean being the subject
of Control by another entity.
J. "Conversion" shall mean (i) the transfer of Customer's
data processing and other information technology services to the M&I system;
(ii) completion of upgrades, enhancements and software modifications as set
forth in this Agreement; and (iii) completion of all interfaces set forth in
this Agreement and full integration thereof such that Customer is able to
receive the Services in a live operating environment.
K. "Conversion Date" shall mean the date on which Conversion
for Customer or a particular Affiliate has been completed. Schedule 1.2
identifies the Conversion Date for Customer and each Affiliate identified
therein.
L. "Conversion Period" shall mean that portion of the Term
beginning on the Effective Date and ending on the Conversion Date.
M. "Core Services" shall mean services provided by M&I's
Deposit System, Loan System and Customer Information System.
N. "Customer Data" shall have the meaning set forth in
Section 17.1 of this Agreement.
O. "Damages" shall mean all direct, actual and verifiable
losses, liabilities, damages and claims and related costs and expenses
(including reasonable attorneys' fees and court costs, costs of investigation,
litigation, settlement, judgment, interest and penalties) but excluding any and
all consequential, incidental, punitive and exemplary damages.
P. "Effective Date" shall mean the date first set
forth above.
Q. "Effective Date of Termination" shall mean the last day on
which M&I provides the Services to Customer (excluding any Termination
Assistance) following delivery of a notice of termination.
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R. "Entity" means a corporation, partnership, sole
proprietorship, limited liability company, joint venture or other form of
organization, and includes the parties hereto.
S. "Estimated Remaining Value" shall mean the number of
calendar months remaining between the Effective Date of Termination and the
last day of the Term, multiplied by the average monthly Fees (but in any event
no less than the Monthly Base Fee) payable by Customer during the three-month
period prior to the event giving rise to termination rights under this
Agreement.
T. "Expenses" shall mean any and all direct, pass through
expenses incurred by M&I for any postage, supplies, materials, travel and
lodging provided to or on behalf of Customer under this Agreement.
U. "Initial Services" shall mean those Services requested by
Customer from M&I under this Agreement as of the Effective Date as set forth in
the Services Schedule.
V. "Millennium Compliant" shall mean the compliance of the
Services with the guidelines established by the Federal Financial Institutions
Examination Council ("FFIEC") in connection with the identification and
renovation of issues relating to the data processing of the year 2000.
W. "Monthly Base Fee" shall mean the minimum fees payable
monthly by Customer to M&I for those Services identified in the Services
Schedule or the Fee Schedule as being included in the Monthly Base Fee.
X. "New Services" shall mean any services which are
identified in M&I's standard price list but not included in the Initial
Services, as well as any future services developed by M&I. Upon Customer's
election to receive the same, New Services shall be included in the term
"Services."
Y. "Operations Center" shall mean the datacenter used by M&I
to provide the Services under this Agreement.
Z. "Performance Standards" shall mean those service levels
set forth in Schedule 9.
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AA. "Proper Instructions" shall mean those instructions sent
to M&I in accordance with Section 3.3 below.
BB. "RDS Agreement" shall mean the Retail Delivery
Systems Agreement of even date herewith between M&I and Customer relating to
the license and implementation of M&I's proprietary branch automation software.
CC. "Services" shall mean the services, functions and
responsibilities described in this Agreement to be performed by M&I during the
Term.
DD. "Taxes" shall mean any manufacturers, sales, use, gross
receipts, excise, personal property or similar tax or duty assessed by any
governmental or quasi-governmental authority upon or as a result of the
execution or performance of any service pursuant to this Agreement or materials
furnished with respect to this Agreement, except any income, franchise,
privilege or like tax on or measured by M&I's net income, capital stock or net
worth.
EE. "Term" shall mean the Initial Term and any extension
thereof, unless this Agreement is earlier terminated in accordance with its
provisions.
FF. "Third Party" shall mean any Entity other than the
parties or any Affiliates of the parties.
GG. "User Manuals" shall mean the documentation provided by
M&I to Customer which describes the features and functionalities of each of the
ADP Services (defined in Section 6.1 below), as modified and updated by the
customer bulletins distributed by M&I from time to time.
1.3 References. In this Agreement and the schedules and exhibits
attached hereto, which are hereby incorporated and deemed a part of this
Agreement, references and mention of the word "include" and "including" shall
mean "includes, without limitation" and "including, without limitation", as
applicable.
1.4 Interpretation. In the event of a conflict between this Agreement
and the terms of any exhibits and schedules attached hereto, the terms of the
schedules and exhibits shall prevail and control the interpretation of the
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Agreement. The exhibits and schedules together with the Agreement shall be
interpreted as a single document.
2. TERM
2.1 Initial Term. This Agreement shall commence on the Effective Date
and end on the seventh (7th) anniversary of the Conversion Date ("Initial
Term").
2.2 Extensions. Unless this Agreement has been earlier terminated, at
least one (1) year prior to the expiration of the Initial Term, M&I shall
submit to Customer a written proposal for renewal of this Agreement. Customer
will respond to such proposal within three (3) months following receipt and
inform M&I in writing whether or not Customer desires to renew this Agreement.
If M&I and Customer are unable to agree upon the terms for renewal of this
Agreement at least six (6) months prior to the expiration of the Initial Term,
then Customer may, at its option, renew this Agreement for one (1) twelve-month
period at the then-current terms and conditions of this Agreement. Customer
shall exercise its option, if at all, by delivering written notice to M&I at
least five (5) months prior to expiration of the Initial Term.
3. APPOINTMENT
3.1 Performance by M&I Affiliates. Customer understands and agrees
that Xxxxxxxx & Xxxxxx Corporation is a bank holding company and that the
actual performance of the Services may be made by the divisions, subsidiaries
and/or Affiliates of Xxxxxxxx & Ilsley Corporation. For purposes of this
Agreement, performance of the Services by any division, subsidiary or Affiliate
of Xxxxxxxx & Xxxxxx Corporation shall be deemed performance by Xxxxxxxx &
Ilsley Corporation itself.
3.2 Third Party Products/Services. The parties acknowledge that
certain services and products necessary for the performance of the Services are
being, and in the future may be, provided by Third Parties who will contract
directly with Customer. M&I shall have no liability to Customer for information
and products supplied by, or services performed by, such Third Parties in
conjunction with the Services.
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3.3 Proper Instructions. "Proper Instructions shall mean those
instructions sent to M&I by letter, memorandum, telegram, cable, telex,
telecopy facsimile, computer terminal, e-mail or other "on line" system or
similar means of communication or given orally over the telephone or given in
person by one or more of the person(s) whose name(s) and signature(s) are
listed on the most recent certificate delivered by Customer to M&I which lists
those persons authorized to give orders, corrections and instructions in the
name of and on behalf of Customer. Proper Instructions shall specify the action
requested to be taken or omitted.
4. CONVERSION
4.1 Banking Applications. The parties agree to use their best efforts
to perform the Conversion(s) such that the Commencement Date occurs on or
before August 3, 1998.
4.2 Development of Conversion Plan. M&I has, in consultation with
Customer, developed a detailed, customized plan for the Conversion (the
"Conversion Plan"). The Conversion Plan includes (i) a description of the tasks
to be performed for the Conversion; (ii) allocation of responsibility for each
of such tasks; and (iii) the schedule on which each task is to be performed.
The Conversion project leaders for each party shall regularly communicate on
the progress of the Conversion, the feasibility of the Conversion Dates
specified in the Conversion Plan, and such other matters which may affect the
smooth transition of the Services. Customer agrees to maintain an adequate
staff of persons who are knowledgeable about the banking, data processing and
information technology systems currently used by Customer. Customer further
agrees to provide such services and to perform such obligations as are
specified as Customer's responsibility in the Conversion Plan and as necessary
for Customer to timely and adequately meet the scheduled dates set forth
therein. Each party shall cooperate fully with all reasonable requests of the
other party made necessary to effect the Conversion in a timely and efficient
manner. The Conversion Plan is attached hereto as Schedule 4.2 and may be
amended by mutual agreement of the parties.
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4.3 Conversion Resources. M&I and Customer will provide a team of
qualified individuals to assist in the Conversion effort. The anticipated team
and description of their responsibilities is set forth in the Conversion Plan.
4.4 Conversion Milestones. During each Conversion process, M&I will
analyze Customer's products, the setup of bank control, analyze and verify
Customer's test data, analyze Customer's training needs and perform workflow
analysis. During the next phase, Customer shall verify the converted test data
and identify any changes to the Conversion programs. A review ("Readiness
Review") will then be performed as a dress rehearsal to ensure that M&I and
Customer are prepared to proceed with the Conversion. M&I and Customer shall
mutually agree to and sign off on the Readiness Review assuring that each
Entity is prepared to proceed with the Conversion. The stabilization phase
takes place approximately three (3) to four (4) weeks prior to Conversion,
during which time software programs, bank control and interface tables are
completed and stabilized. Changes, if any, are managed and require approval of
both M&I and Customer. Finally, the Conversion phase includes the Conversion
weekend and Conversion week support. The M&I project team manages the
Conversion weekend, working with Customer's existing processors to meet
targeted deadlines. During the Conversion week, M&I will provide support on
site for Customer. On a daily basis, M&I and Customer will have status update
meetings to understand levels of self sufficiency and areas requiring
attention.
5. TRUST SERVICES INTENTIONALLY OMITTED
6. BANKING APPLICATIONS
6.1 Services to be Rendered. M&I agrees to provide Customer with the
ADP Services set forth on Schedule 6.1 ("Services Schedule") in accordance with
the applicable User Manuals.
6.2 New Services. If Customer wishes to receive any New Service which
is identified on M&I's then-current standard price list, Customer shall notify
M&I and the parties shall implement the same in accordance with a mutually
acceptable schedule. If the New Service is not
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identified on M&I's then-current standard price list, Customer shall submit a
written request to M&I in accordance with Section 18.3 of this Agreement.
Nothing contained herein shall obligate M&I to develop a New Service for
Customer.
6.3 Automated Clearing House Services. The following terms, and
conditions shall apply only to the provision of automated clearing house
services ("ACH Services") set forth in the Services Schedule:
A. Definitions. The following terms, as referenced from the
NACHA Rules, shall have the following meanings for the purposes of the
Agreement:
1. "Applicable Law" means the NACHA Rules, the rules of
local ACH Associations, the rules of any and all ACH Operators, and other
applicable law.
2. "Automated Clearing House Operator" or "ACH
Operator" means the central clearing facility, operated by a Federal Reserve
Bank ("FRB") or a private organization, which receives entries from the ODFI or
the Third Party processor acting as an agent for the ODFI, and distributes
entries to the appropriate RDFI or the Third Party processor acting as an agent
for the RDFI, and performs the settlement functions for the affected financial
institutions.
3. "Originating Depository Financial Institution" or
"ODFI" means the institution that receives the payment instructions from the
Originators and forwards the entries to the ACH Operator.
4. "Originator" means a person that has authorized an
ODFI to transmit a credit or debit entry to the deposit account of an RDFI.
5. "Receiving Depository Financial Institution" or "RDFI"
means the institution that receives ACH entries from the ACH Operator and posts
them to the accounts of its depositors.
B. General. Customer hereby authorizes M&I to initiate and
receive automated clearing house debit and credit entries, adjustments to debit
entries and credit entries to Customer's account to be set up during the
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Conversion Period, to credit and/or debit the same to such account, and to
provide various ACH services, as described below, to Customer pursuant to the
terms and conditions specified in this Section 6.3. The ACH entries covered
shall hereinafter be referred to as the "ACH Entries." Except as otherwise
provided herein, the terms used in this Section 6.3 shall have the same
meanings as ascribed to such terms in the Operating Rules of the National
Automated Clearing House Association, as in effect from time to time (the
"NACHA Rules").
C. ACH Services.
1. M&I shall act as Customer's agent for
initiating and transmitting ACH Entries to the appropriate ACH Operator. In
addition, M&I shall act as Customer's agent for receiving ACH Entries from an
ACH Operator. For all ACH Entries initiated by M&I pursuant to this Agreement,
Customer, and not M&I, shall be the ODFI when M&I receives payment instructions
directed to Customer's routing number from an Originator, or the RDFI when M&I
receives ACH Entries directed to Customer's routing number from an ACH
Operator.
2. M&I shall transmit ACH Entries in accordance with
the format requirements of the NACHA Rules to an ACH Operator using Customer's
Routing Number. M&I shall receive ACH Entries on behalf of Customer that are
transmitted to M&I by an ACH Operator. M&I shall provide reports to Customer,
as described in the ACH User Manual. If agreed to between Customer and M&I, M&I
shall provide for the posting of ACH Entries to Customer deposit accounts.
3. All warranties of an ODFI or RDFI prescribed
under Applicable Law shall be in effect and applicable to Customer, and not
M&I, with respect to all ACH Entries.
4. M&I may provide additional ACH Services as
requested by Customer and agreed to by M&I in writing.
D. M&I PC ACH Services. Customer may provide its business
depositors with personal computer access to M&I's ACH Services in accordance
with the ACH User Manual (the "PC ACH Service"). Customer shall be responsible
for informing M&I prior to permitting a new depositor to begin
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using the PC ACH Service. Customer also shall inform M&I whether any credit
limit shall apply to the ACH Entries of a depositor utilizing the PC ACH
Service.
E. Customer Depositor Inquiries; Erroneous or Rejected
ACH Entries.
1. Customer shall be responsible for handling all
inquiries of its depositors regarding ACH Entries, including inquiries
regarding credits or debits to a depositor's account resulting from an ACH
Entry. M&I agrees to reasonably assist Customer in responding to such inquiries
by providing information to Customer concerning ACH Entries.
2. As described in the ACH User Manual, M&I shall
provide reports to Customer showing errors and rejections resulting from ACH
Entries transmitted on behalf of Customer during a particular day. It shall be
Customer's responsibility to research and correct such ACH Entries.
F. Credit Limits.
1. Customer may from time to time establish
one or more credit limits applicable to ACH Entries involving a particular
depositor or all depositors of Customer. Such credit limits shall be
established by written notice from Customer and shall be implemented by M&I as
soon as reasonably practicable.
2. In the event that an ACH Entry exceeds a credit
limit communicated to M&I by Customer, M&I shall promptly give oral or written
notice to Customer. Customer may either approve the ACH Entry as an exception
to the credit limit, request that it be held over to the next day, or reject
such ACH Entry provided, however, that any exception to the credit limit must
be approved in writing by Customer.
G. User Manuals.
1. M&I shall provide Customer with a copy of the
ACH User Manual and any updates to such manual. Customer agrees to comply with
the requirements of such manual.
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2. It shall be Customer's responsibility, and
Customer is authorized, to forward a copy of the applicable portion of the ACH
User Manual, and any updates thereto, to Customer's depositors that utilize the
PC ACH Service.
H. NACHA Rules. Prior to providing ACH origination services,
Customer shall enter into an agreement with the Originator in compliance with
the NACHA Rules, including but not limited to the requirement of the NACHA
Rules that such agreement include a provision whereby the Originator agrees to
be bound by the NACHA Rules. M&I shall have no responsibility for ensuring that
the Originators have entered into such agreements.
I. Limitation On Liability.
1. M&I is acting solely in its capacity as agent for
Customer in connection with the initiation, transmission and receipt of ACH
Entries on behalf of Customer. As agent, M&I shall be under no obligation to
provide funds to any party to settle for any ACH Entry received or initiated by
M&I. Upon notification from Customer of the occurrence of an error or omission
with respect to an ACH Entry, M&I shall promptly furnish corrected ACH
Entry(ies) to an ACH Operator, unless the NACHA Rules prohibit the processing
of the correct ACH Entry(ies). Notwithstanding any provision in the Agreement
to the contrary, M&I's liability to Customer for claims arising out of the ACH
Services performed by M&I pursuant to this Section 6.3 shall be limited to the
extent of errors and omissions which are caused by M&I's gross negligence or
willful misconduct and which cannot be remedied through the processing of
appropriate corrected ACH Entry(ies).
2. M&I shall make reasonable efforts to deliver ACH
Entries to Customer or to an ACH Operator, as appropriate, prior to any
applicable deadline for such delivery. M&I does not guarantee timely delivery.
M&I shall have no liability to Customer as a result of any late delivery,
except to the extent such late delivery is (i) caused by the gross negligence
or willful misconduct of M&I and (ii) made more than 24 hours after its
scheduled deadline.
6.4 Home Banking and Internet Services.
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A. Home Banking Services. M&I shall act as Customer's agent
in providing the xxxx payment and PC banking services ("Home Banking Services")
set forth in this Section. Customer acknowledges and agrees that M&I may
subcontract the Home Banking Services to a Third Party, provided that M&I
remains liable to Customer for the performance of the Third Party
subcontractor.
1. M&I shall provide to Customer the Home
Banking Services described in attached Schedule 6.4(A) (the "Home Banking
Schedule"). Customer agrees to pay M&I for the Home Banking Services in
accordance with the Fee Schedule.
2. Customer shall enter into a written agreement
directly with its users to whom Home Banking Services are to be provided.
3. Customer shall ensure that all appropriate
disclosures have been made in accordance with applicable law and/or regulations
prior to participation by its users.
4. Customer shall ensure that xxxx payments are
funded from its users' funding accounts with Customer and in accordance with
applicable law.
5. Customer shall be responsible for limiting its
users' access to those accounts for which the user has legal authority to use
for the purpose of funding xxxx payments and other transactions.
6. Customer shall be responsible for all
arrangements relating to closed customer accounts, to assure payment and other
handling and clearance of outstanding items relating to such accounts.
7. The credit risks as between Customer and M&I are
set forth in the Home Banking Schedule.
B. Internet Services. Customer and M&I agree that M&I shall
make available to Customer on-line Internet services which may include certain
information, software and other services, subject to the terms and conditions
set forth below.
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1. Licenses.
a. M&I or its licensors retain all
ownership rights in all Software, including any interfaces to M&I applications,
regardless of physical form. "Software" shall specifically exclude the design
of Customer's Home Page, Customer's Home Page graphics and the HTML,
(collectively, the "Modular Applications") in which the Customer retains all
ownership rights. M&I grants Customer a non-exclusive, non-transferable license
("License") to use the information and Software, during the Term, in its
business subject to the limitations contained in this Section.
b. Updates of Software, which incorporate
solutions to reported problems with the Software or which make the Software
operate more easily or efficiently and which are issued during the initial Term
or during any extension period, are provided to Customer without additional
charge. Revisions of Software which substantially extend functionality and
updates of information, if available, are available only upon payment of an
additional fee.
c. Upon termination of the License or upon
receipt of a new edition of information or Software, Customer shall immediately
return, delete or destroy all originals and copies of the information or
Software, except for archival copies made in accordance with subparagraph 3(d)
below. M&I in its sole discretion may require that Customer return originals
and copies or may require that Customer provide a certification that originals
and copies have been deleted or destroyed.
2. Restrictions on Xxx.Xxxxxxxx are provided
for Customer's internal use and permitted End Users only. Customer agrees to
obtain from each user of the services ("End User") an executed copy of the End
User disclosures on the Home Banking Schedule.
3. Copying.
a. Customer shall not download, upload, or
in any other way reproduce information or Software except as provided in
subparagraphs (b), (c) and
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(d) below or unless Customer obtains M&I's prior written consent.
b. Customer may create for internal use
on-line and off-line printouts of materials received in electronic form.
c. During the Term and subject to the
restrictions of this paragraph 3, Customer may: (i) copy information into any
other medium for internal use; (ii) make photocopies of information for
internal use only; and (iii) download and store information in machine-readable
form.
d. Customer may make one copy of
information and the Software for archival purposes.
4. Domain Names. Customer shall select its domain
name and M&I shall assist Customer in registering the name with InterNIC (or
any successor entity). Customer represents and warrants to M&I that it has the
right to use such name and that the domain name does not infringe a trademark
or tradename belonging to a Third Party.
5. Third-Party Services and Products. Customer
understands and agrees that M&I may use the services and products of
Third-Party providers in connection with the Internet Services offered by M&I.
These Third-Party services and products may include the creation of Customer's
Modular Applications, fire wall security, web server software and encryption
software.
6. Fees. Customer agrees to pay M&I for the Internet
Services in accordance with the Fee Schedule.
7. Compliance with Law.
a. Customer shall not use any information,
Software, Modular Applications or other service to engage in any unfair or
deceptive practices.
b. Customer agrees to comply with any
applicable requirements imposed by U.S. or foreign law, or, if unable to comply
with foreign law, to refuse the information, Software, Modular Applications or
other service subject to the foreign law.
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c. Customer agrees that it will not permit
the Internet Services to be used for illegal purposes, or to interfere with or
disrupt other network users, network services or network equipment. Disruptions
include distribution of unsolicited advertising or chain letters, propagation
of computer worms and viruses, and using the network to make unauthorized entry
to any other machine accessible via the network.
8. Copyrights and Other Proprietary Rights.
a. Customer acknowledges that
information and software are proprietary to M&I and comprise: (a) works of
original authorship; and (b) confidential and trade secret information.
Customer shall not commit or permit any act or omission that would impair M&I's
proprietary and intellectual property rights in the information and software.
Customer shall reproduce M&I's copyright notice and proprietary rights legend
on all copies of such information and software.
b. Customer shall not use any
trademark, service xxxx or trade name of M&I or any of its Affiliates.
9. Indemnity. The following matters are
included in Customer's indemnities set forth in Section 14.2(A) below:
a. Customer's selection of its domain
name;
b. Content and information included in
Customer's Modular Applications;
c. Except to the extent caused by
M&I's gross negligence or willful midconduct;
(i) Tortious acts or
omissions of End Users in connection with Customers Modular Applications;
(ii) Any breach of the fire
wall, or any unauthorized access to information contained in Customer's
Modular Applications;
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(iii) Any unauthorized or
fraudulent transactions conducted using Customer's Modular Applications; and
(iv) Any breach of security
of any End User transaction on the Internet resulting in damages to M&I.
6.5 Branch Systems. M&I agrees to provide the licenses, products,
interfaces and network management services associated with the branch
automation software, in accordance with the RDS Agreement.
6.6 Visa Check/MasterMoney Card Services. M&I agrees to provide the
Visa Check card and/or MasterCard MasterMoney card ("Bankcard Services") as
part of the ADP Services. Customer agrees to use M&I exclusively for all data
processing in connection with Customer's Bankcard Services.
A. Customer shall execute applications for membership
in Visa U.S.A. Inc. and/or MasterCard International. M&I agrees to assist
Customer in obtaining sponsorship by an appropriate bank, if necessary.
Customer shall provide M&I with copies of its fully executed Visa U.S.A. Inc.
and/or MasterCard International membership agreements promptly after receipt by
Customer.
B. Customer shall comply with the articles, bylaws, operating
regulations, rules, procedures and policies of Visa U.S.A. Inc. and/or
MasterCard International and shall be solely responsible, as between Customer
and M&I, for any claims, liabilities, lawsuits and expenses arising out of or
caused by Customer's failure to comply with the same. Customer agrees to
maintain an account with a bank approved by M&I and Customer hereby authorizes
M&I to charge any amounts due to M&I, for Bankcard Services, against any
credits due to Customer to Customer's account whether or not such charges
create overdrafts.
6.7 EFT Services. M&I agrees to provide the EFT services as part of
the ADP Services. Customer understands and agrees that M&I may terminate EFT
services immediately in the event M&I's access to any shared electronic funds
transfer system is terminated by the network provider.
7. FACILITIES MANAGEMENT INTENTIONALLY OMITTED
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8. FEES
8.1 Fee Structure. Schedule 8.1 attached hereto (the "Fee Schedule")
sets forth the costs and charges to be paid by Customer for the Services.
Customer agrees to pay M&I the fees specified in the Fee Schedule for the
Services to be rendered by M&I. These costs and charges are included in one or
more of the following categories:
(i) one-time fees associated with the Conversion;
(ii) the Monthly Base Fee, a minimum monthly fee, for
certain bundled data processing Services based on
data processing volume; increases in actual volumes
shall result in additional charges as further
described in the Fee Schedule;
(iii) an hourly or daily fee for programming, training and
related Services requested by Customer; and
(vi) optional fees based on M&I's then current published
price list for New Services not included in the
foregoing categories.
8.2 Conversion. Customer agrees to pay M&I the fees relating to the
Conversion on the terms and conditions set forth on the Fee Schedule
("Conversion Fees"). In addition to the Conversion Fees, Customer agrees to
reimburse M&I (i) for all Expenses reasonably incurred in connection with the
Conversion; (ii) for all Conversion charges of accounts or products not
identified by Customer in the Conversion Plan as of the Effective Date; (iii)
for M&I personnel or any independent contractors who perform Conversion or
related services which are identified as the responsibility of the Customer in
the Conversion Plan; and (iv) for Conversion related charges which may arise
after the Conversion.
8.3 Pricing and Operational Assumptions. The Fee Schedule sets forth
the operational and pricing assumptions made by M&I following completion of its
preliminary due diligence of Customer's requirements and its evaluation of
information provided by Customer. If the parties determine that one or more of
the pricing or operational assumptions
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listed in the Fee Schedule is inaccurate or incomplete in any material respect,
the parties will negotiate in good faith regarding an equitable adjustment to
any materially and adversely impacted provisions of this Agreement.
8.4 Bankcard and EFT Services. Notwithstanding any provision to
the contrary in the Agreement, or any general discount specified in the Fee
Schedule, the fees for Bankcard Services and the EFT Services shall not be
subject to any discounts. In addition to the charges specified on the Fee
Schedule, Customer shall be responsible for all interchange and network provider
fees and all dues, fees and assessments established by and owed to Visa U.S.A.
Inc. and/or MasterCard International for the processing of Customer's
transactions.
8.5 Training and Education.
A. M&I shall provide training in accordance with the training
schedule developed pursuant to the Conversion Plan. The sessions shall be held
at an M&I datacenter location to be determined by M&I. Customer shall be
responsible for all Expenses incurred by the participants and M&I's trainers in
connection with such education and training.
B. M&I will provide, at no charge, one hard copy or one copy
on CD-ROM of each of the User Manuals to Customer, at Customer's option. When
said manuals are updated, M&I will provide replacement or additional pages or a
replacement CD-ROM, based on Customer's earlier selection. Additional copies of
the User Manuals may be purchased by Customer at M&I's then current published
price list.
8.6 Excluded Costs. The fees set forth in the Fee Schedule do not
include courier costs, telecommunication charges, Expenses, Third Party
pass-through charges, workshop fees, training fees, late fees or charges and
Taxes.
8.7 Disputed Amounts. If Customer disputes any charge or amount
on any invoice and such dispute cannot be resolved promptly through good faith
discussions between the parties, Customer shall pay the amounts due under this
Agreement less the disputed amount, and the parties shall diligently proceed to
resolve such disputed amount. An
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amount will be considered disputed in good faith if (i) Customer delivers a
written statement to M&I on or before the due date of the invoice, describing
in detail the basis of the dispute and the amount being withheld by Customer,
(ii) such written statement represents that the amount in dispute has been
determined after due investigation of the facts and that such disputed amount
has been determined in good faith, (iii) such dispute has been submitted by
Customer for resolution, and (iv) all other amounts due from Customer that are
not in dispute have been paid in accordance with the terms of this Agreement.
8.8 Terms of Payment. All "one-time" fees shall be paid to M&I as set
forth in the Fee Schedule. Customer shall pay the Monthly Base Fee in advance
on the first day of the calendar month in which the Services are to be
performed. To effect payment, Customer hereby authorizes M&I to initiate debit
entries from and, if necessary, initiate credit entries and adjustments to
Customer's account at the depository institution designated in the ACH
Authorization Agreement attached hereto as Exhibit A, which shall be executed
by Customer contemporaneously with the execution of this Agreement. All other
amounts due hereunder shall be paid within thirty (30) days of invoice, unless
otherwise provided in the Fee Schedule. Customer shall also pay any collection
fees and Damages incurred by M&I in collecting payment of the charges and any
other amounts for which Customer is liable under the terms and conditions of
this Agreement.
8.9 Modification of Terms and Pricing.
A. Following any Event of Default by Customer and pending
completion of the dispute resolution procedures set forth in Article 15,
Customer agrees that all charges for Services shall be computed using M&I's
then-current standard published prices, paid in advance. Upon Customer's cure
of all such Event(s) of Default, the pricing terms shall revert to that which
were in place prior to the Event(s) of Default.
B. All charges for Services shall be subject to the annual
adjustments set forth in the Fee Schedule.
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C. Customer shall be entitled to receive discounts on certain
Services as may be specifically set forth in the Fee Schedule.
9. PERFORMANCE STANDARDS
9.1 General. Except as otherwise specified in this Agreement, M&I
agrees to perform the Services in accordance with the Performance Standards
and, where there are no Performance Standards, in a commercially reasonable
manner and with no other or higher degree of care. Subject to the nonoccurrence
of an event of force majeure and the performance of Customer's obligations
essential to M&I's performance of its obligations, M&I agrees that during the
Term, the ADP Services will be provided in accordance with the Performance
Standards set forth on attached Schedule 9.1.
9.2 Exclusive Remedy. Customer will notify M&I in writing if the
Performance Standards are not achieved, and M&I shall have ninety (90) days to
meet the Performance Standards. If after ninety (90) days the Performance
Standards still have not been met, the Customer may terminate the Agreement
without penalty or payment of any buyout amount upon giving M&I written notice
after the expiration of the ninety (90) day cure period. [Without limiting
M&I's obligation to perform in accordance with Section 9.1 of this Agreement,
if M&I fails to meet any of the Performance Standards set forth above for any
calendar month, M&I shall provide Customer a credit equal to three percent (3%)
of the Monthly Base Fee for the second consecutive calendar month in which the
same Performance Standard is not met; provided however, that if the same
Performance Standard is not met for a third consecutive month, the credit shall
be five percent (5%) and for the fourth consecutive month and each consecutive
month thereafter the credit shall be ten percent (10%). The credits available
to Customer under this Section 9.2 shall not exceed twelve percent (12%) of the
Monthly Base Fee in any given month, under any circumstances.]
9.3 Incentive Credits. As an incentive, Customer agrees to pay M&I
twenty-five thousand dollars ($25,000), ("Incentive Bonus") for each twelve
(12) month period during the Term of the Agreement during which M&I meets or
exceeds
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all of the Performance Standards set forth above. After payment of an Incentive
Bonus, a new twelve (12) month period shall commence for purposes of computing
the next, if any, Incentive Bonus.
10. MODIFICATION OR PARTIAL TERMINATION
10.1 Modifications to Services. M&I may modify, amend, enhance,
update, or provide an appropriate replacement for the software used to provide
the Services, or any element of its systems at any time to: (i) improve the
Services or (ii) facilitate the continued economic provision of the Services to
Customer or M&I, provided that the functionality of the Services is not
materially adversely affected.
10.2 Partial Termination by M&I. M&I may, at any time, withdraw any of
the Services (other than the Core Services) upon providing ninety (90) days'
prior written notice to Customer. M&I may also terminate any of the Services
immediately upon any final regulatory, legislative, or judicial determination
that providing such Services is inconsistent with applicable law or regulation
or upon imposition by any such authority of restrictions or conditions which
would detract from the economic or other benefits to M&I or Customer to any
element of the Services. In the event a Service provided as part of the Monthly
Base Fee is terminated by M&I, the parties agree to negotiate in good faith an
appropriate reduction in the Monthly Base Fee. If M&I terminates any Service
which is part of the Initial Services, M&I agrees to assist Customer in
identifying an alternate provider of such terminated Service and to provide
reasonable assistance to Customer in the smooth transition to an alternate
provider during such six (6) month period or such other reasonable amount of
time, at no additional charge to Customer.
10.3 Partial Termination by Customer.
A. Customer agrees that, during the Term, Customer shall
obtain from M&I all of its data processing requirements covered by the Initial
Services.
B. For all New Services, Customer may terminate the same
upon ninety (90) days prior written notice to M&I, without payment of any
buyout fees or charges, except that
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in the event of termination of all Services under the Agreement, the provisions
of Article 11 shall apply.
10.4 Development of Custom Software. M&I reserves the right to
determine the programming (whether hardware or software) utilized by M&I with
the equipment used in fulfilling its duties under this Agreement. All programs
(including ideas and know-how and concepts) developed by M&I are and shall
remain M&I's sole property. Any writing or work of authorship created by M&I in
the course of performing the Services under this Agreement, even if paid for by
Customer, shall be the property of M&I ("Developed Software"). M&I may make
such Developed Software available to any of its other customers; provided,
however, if Customer has paid for such Developed Software and M&I offers, as
part of M&I's standard price list, a separate service resulting exclusively
from such Developed Software, M&I will refund, or credit, to Customer a portion
of any amounts paid for such Developed Software on terms and conditions agreed
to by the parties prior to commencement of work on the Developed Software.
10.5 Millennium Compliance. The Services, including any software
interfaces and enhancements created by M&I, shall be modified to be Millennium
Compliant on or before December 31, 1998. Any modification to make the Services
Millennium Compliant shall be made by M&I at no additional charge.
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11. TERMINATION
11.1 For Convenience or Default By Customer. (a) M&I may terminate
this Agreement pursuant to Section 11.2, or (b) Customer may terminate this
Agreement for convenience upon at least six (6) months' prior written notice to
M&I; provided that Customer pays M&I an early termination fee ("Termination
Fee") in an amount equal to sixty percent (60%) of the Estimated Remaining
Value. Customer shall not deliver notice of termination for convenience to M&I
prior to expiration of the first Contract Year. The Termination Fee shall apply
to any early termination of this Agreement other than termination of this
Agreement by Customer pursuant to Sections 11.2 or 11.3 below. Fifty percent of
the Termination Fee shall be paid to M&I within thirty (30) days following the
date of Customer's notice and the remaining 50% shall be paid to M&I within
thirty (30) days prior to the Effective Date of Termination. In addition to the
foregoing, Customer shall pay to M&I any unamortized fees and all reasonable
Expenses in connection with the disposition of equipment, facilities and
contracts related to M&I's performance of the Services on behalf of Customer.
The Termination Fee shall not be subject to the limitations set forth in
Section 13.4.
11.2 For Cause. If either party fails to perform any of its material
obligations under this Agreement and does not cure such failure within thirty
(30) days after being given notice specifying the nature of the failure, then
the non-defaulting party may, by giving notice to the other party, terminate
this Agreement as of the date specified in such notice of termination.
11.3 For Insolvency. In addition to the termination rights set forth
in Sections 11.1 and 11.2, subject to the provisions of Xxxxx 00, Xxxxxx Xxxxxx
Code, if either party becomes or is declared insolvent or bankrupt, is the
subject to any proceedings relating to its liquidation, insolvency or for the
appointment of a receiver or similar officer for it, makes an assignment for
the benefit of all or substantially all of its creditors, or enters into an
agreement for the composition, extension, or readjustment of all or
substantially all of its obligations, then the other party, by giving written
notice to such party, may terminate this Agreement as of a date specified in
such notice of termination.
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12. SERVICES FOLLOWING TERMINATION
12.1 Termination Assistance. Commencing six (6) months prior to the
expiration of the Term of this Agreement, or upon any termination of this
Agreement for any reason, M&I shall provide Customer, at Customer's expense,
all necessary assistance to facilitate the orderly transition of Services to
Customer or its designee ("Termination Assistance"). As part of the Termination
Assistance, M&I shall assist Customer to develop a plan for the transition of
all data processing services from M&I to Customer or its designee on a
reasonable schedule developed by Customer. Prior to providing any Termination
Assistance, M&I shall deliver to Customer a good faith estimate of all such
Expenses and charges including, without limitation, charges for custom
programming services. Customer understands and agrees that all Expenses and
charges for Termination Assistance shall be computed in accordance with M&I's
then-current rates for such products, materials and services. Nothing contained
herein shall obligate Customer to receive Termination Assistance from M&I.
12.2 Continuation of Services. Upon at least ninety (90) days' prior
written request of Customer, M&I shall continue to provide Customer all
Services at the rates set forth in this Agreement, for a maximum period of six
(6) months following the Effective Date of Termination.
13. DAMAGES
13.1 Direct Damages. Each party shall be liable to the other party
solely for Damages arising out of or relating to their respective performance
or failure to perform under this Agreement.
13.2 No Consequential Damages. Neither Customer nor M&I shall be
liable for, nor will the measure of any damages in any event include, any
indirect, incidental, punitive, special or consequential damages or amounts for
loss of income, profits or savings arising out of or relating to performance or
failure to perform under this Agreement, even if such party has been advised of
the possibility of such losses or damages.
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13.3 Equitable Relief. Either party may seek equitable remedies,
including specific performance and injunctive relief, for a breach of the other
party's obligations under this Agreement, prior to commencing the dispute
resolution procedure set forth in Section 15.1 below.
13.4 Limitation of Liability. Notwithstanding any provision in this
Agreement, M&I's total liability under this Agreement shall not exceed payments
made to M&I by Customer under this Agreement during the three (3) months prior
to the event. No lawsuit or other action may be brought by either party hereto,
or on any claim or controversy based upon or arising in any way out of this
Agreement be brought, after one (1) year from the date on which the cause of
action arose; provided, however, the foregoing limitation shall not apply to
the collection of any amounts due under this Agreement.
13.5 Liquidated Damages. Customer acknowledges that M&I shall suffer a
material adverse impact on its business if this Agreement is terminated
pursuant to Sections 11.1 or 11.2(A) and that the resulting damages may not be
susceptible of precise determination. Customer acknowledges that the
Termination Fee is a reasonable approximation of such damages and shall be
deemed to be liquidated damages and not a penalty.
14. INSURANCE AND INDEMNITY
14.1 Insurance.
A. Throughout the Term of this Agreement, M&I shall
maintain at all times at its own cost and expense:
1. Commercial General Liability Insurance covering
its premises, including bodily injury, property damage, broad form contractual
liability and independent contractors, with primary limits of not less than two
million dollars ($2,000,000).
2. Fidelity Insurance covering employee dishonesty
with respect to all aspects of the Services, in an amount not less than ten
million dollars ($10,000,000).
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3. Workers' Compensation Insurance as mandated or
allowed by the state in which the Services are being performed, including at
least five hundred thousand dollars ($500,000) coverage for Employer's
Liability.
4. All Risk Property Insurance in an amount adequate
to cover the cost of replacement of all equipment, improvements, and
betterments at M&I locations in the event of loss or damage.
B. All policies of such insurance shall be written by a
carrier or carriers rated "A" or above by Best.
14.2 Indemnity. The following obligations shall apply to claims made
by Third Parties arising out of the events described in this Section 14.2:
A. By Customer. Customer shall indemnify M&I from, defend M&I
against, and pay any final judgments awarded against M&I, in connection with
(i) the inaccuracy or untruthfulness of any representation or warranty made by
Customer to M&I, (ii) Customer's violation of Federal, state, or other laws or
regulations, (iii) work-related injury or death caused by Customer or its
employees or agents, (iv) tangible personal or real property damage or
financial or monetary loss incurred by M&I resulting from Customer's acts or
omissions, or those of its employees or agents, (v) the data, information
and/or instructions furnished by Customer and any inaccuracy or inadequacy
therein as set forth in Section 21.3, (vi) Customers failure to maintain
adequate records as set forth in Section 21.4, (vii) Customer's failure to
comply with TIN requirements under Section 21.8, and (viii) those matters
included in Section 6.4(B) above. Customer shall be responsible for any costs
and Expenses incurred by M&I in connection with the enforcement of this
Paragraph A.
B. By M&I. M&I shall indemnify Customer from, defend Customer
against, and pay any final judgment awarded against Customer, in connection
with: (i) any claim by a Third Party that the Services or M&I's software
infringe upon any patent, copyright or trademark of a Third Party under the
laws of the United States; (ii) the inaccuracy or untruthfulness of any
representation or warranty made by M&I to Customer; (iii) M&I's violation of
Federal, state, or other laws or regulations; (iv) work-related injury or death
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caused by M&I, its employees, or agents; and (v) tangible personal or real
property damage resulting from M&I's acts or omissions. M&I shall be
responsible for any costs and Expenses incurred by Customer in connection with
the enforcement of this Paragraph B.
14.3 Indemnification Procedures. If any Third Party makes a claim
covered by this Section against an indemnitee with respect to which such
indemnitee intends to seek indemnification under this Section, such indemnitee
shall give notice of such claim to the indemnifying party, including a brief
description of the amount and basis therefor, if known. Upon giving such
notice, the indemnifying party shall be obligated to defend such indemnitee
against such claim, and shall be entitled to assume control of the defense of
the claim with counsel chosen by the indemnifying party, reasonably
satisfactory to the indemnitee. Indemnitee shall cooperate fully with, and
assist, the indemnifying party in its defense against such claim in all
reasonable respects. The indemnifying party shall keep the indemnitee fully
apprised at all times as to the status of the defense. Notwithstanding the
foregoing, the indemnitee shall have the right to employ its own separate
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnitee. Neither the indemnifying party nor any
indemnitee shall be liable for any settlement of action or claim effected
without its consent. Notwithstanding the foregoing, the indemnitee shall
retain, assume, or reassume sole control over all expenses relating to every
aspect of the defense that it believes is not the subject of the
indemnification provided for in this section. Until both (a) the indemnitee
receives notice from indemnifying party that it will defend, and (b) the
indemnifying party assumes such defense, the indemnitee may, at any time after
ten (10) days from the date notice of claim is given to the indemnifying party
by the indemnitee, resist or otherwise defend the claim or, after consultation
with and consent of the indemnifying party, settle or otherwise compromise or
pay the claim. The indemnifying party shall pay all costs of indemnity arising
out of or relating to that defense and any such settlement, compromise, or
payment. The indemnitee shall keep the indemnifying party fully apprised at all
times as to the status of the defense. Following indemnification as provided in
this Section, the indemnifying party shall be subrogated to all rights of the
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indemnitee with respect to the matters for which indemnification has been made.
15. DISPUTE RESOLUTION
15.1 Representatives of Parties. All disputes arising under or in
connection with this Agreement shall initially be referred to the Account
Representatives. If the Account Representatives are unable to resolve the
dispute within five (5) business days after referral of the matter to them, the
managers of the Account Representatives shall attempt to resolve the dispute.
If, after five (5) days they are unable to resolve the dispute, senior
executives of the parties shall attempt to resolve the dispute. If, after five
(5) days they are unable to resolve the dispute, the parties shall submit the
dispute to the chief executive officers of the parties for resolution. Neither
party shall commence legal proceedings with regard to a dispute until
completion of the dispute resolution procedures set forth in this Section 15.1,
except to the extent necessary to preserve its rights or maintain a superior
position.
15.2 Continuity of Performance. During the pendency of the dispute
resolution proceedings described in this Article 15, M&I shall continue to
provide the Services so long as Customer shall continue to pay all undisputed
amounts to M&I in a timely manner.
16. REPRESENTATIONS AND WARRANTIES
16.1 By M&I. M&I represents and warrants that:
A. Capability of Computer Systems and Software. M&I's
computer systems (hardware and software) are capable of performing the Services
in accordance with the provisions of this Agreement.
B. User Manuals. The reports made available to Customer shall
be in substantial conformity with the User Manuals, as amended from time to
time, copies of which have been, or will be, provided to Customer.
C. Rights. M&I has the right to provide the Services
hereunder, using all computer software required for that purpose.
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D. Organization and Approvals. M&I is a validly organized
corporate entity with valid authority to enter into this Agreement. This
Agreement has been duly authorized by all necessary corporate action.
E. Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH
IN THIS SECTION 16.1, M&I DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN,
ORAL, EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
16.2 By Customer. Customer represents and warrants that:
A. Organization. It is a corporation validly existing and in
good standing under the laws of the state of its incorporation;
B. Authority. It has all the requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement,
the execution, delivery and performance of this Agreement has been duly
authorized by Customer and this Agreement is enforceable in accordance with its
terms against Customer; and
C. Approvals. No approval, authorization or consent of any
governmental or regulatory authorities required to be obtained or made by
Customer in order for Customer to enter into and perform its obligations under
this Agreement.
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17. CONFIDENTIALITY AND OWNERSHIP
17.1 Customer Data. Customer shall remain the sole and exclusive owner
of all Customer Data and other Confidential Information (as hereinafter
defined), regardless of whether such data is maintained on magnetic tape,
magnetic disk, or any other storage or processing device. All such Customer
Data and other Confidential Information shall, however, be subject to
regulation and examination by the appropriate auditors and regulatory agencies
to the same extent as if such information were on Customer's premises.
"Customer Data" means any and all data and information of any kind or nature
submitted to M&I by Customer, or received by M&I on behalf of Customer, in
connection with the Services.
17.2 M&I Systems. Customer acknowledges that it has no rights in any
software, systems, documentation, guidelines, procedures and similar related
materials or any modifications thereof provided by M&I, except with respect to
Customer's use of the same during the Term to process its data.
17.3 Confidential Information. "Confidential Information" of a party
shall mean all confidential or proprietary information and documentation of
such party, whether or not marked as such, including without limitation with
respect to Customer, all Customer Data. Confidential Information shall not
include: (i) information which is or becomes publicly available (other than by
the person or entity having the obligation of confidentiality) without breach
of this Agreement; (ii) information independently developed by the receiving
party; (iii) information received from a third party not under a
confidentiality obligation to the disclosing party; or (iv) information already
in the possession of the receiving party without obligation of confidence at
the time first disclosed by the disclosing party. The parties acknowledge and
agree that the substance of the negotiations of this Agreement, and the terms
of this Agreement are considered Confidential Information subject to the
restrictions contained herein. Neither party shall use, copy, sell, transfer,
publish, disclose, display, or otherwise make any of the other party's
Confidential Information available to any third party without the prior written
consent of the other.
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17.4 Obligations of the Parties. M&I and Customer shall hold the
Confidential Information of the other party in confidence and shall not
disclose or use such Confidential Information other than for the purposes
contemplated by this Agreement, and shall instruct their employees, agents, and
contractors to use the same care and discretion with respect to the
Confidential Information of the other party or of any third party utilized
hereunder that M&I and Customer each require with respect to their own most
confidential information, but in no event less than a reasonable standard of
care, including but not limited to, the utilization of security devices or
procedures designed to prevent unauthorized access to such materials. Each
party shall instruct its employees, agents, and contractors of its
confidentiality obligations hereunder and not to attempt to circumvent any such
security procedures and devices. Each party's obligation under the preceding
sentence may be satisfied by the use of its standard form of confidentiality
agreement, if the same reasonably accomplishes the purposes here intended. All
such Confidential Information shall be distributed only to persons having a
need to know such information to perform their duties in conjunction with this
Agreement.
17.5 Security. M&I shall be responsible for, and shall establish and
maintain safeguards against, a disaster, loss or alteration of the Customer
Data in the possession of M&I. Such safeguard shall be no less rigorous than
that M&I uses to protect its own data of a similar nature.
18. MANAGEMENT OF PROJECT
18.1 Account Representatives. Each party shall cause an individual to
be assigned to the position of Account Representative to devote time and effort
to management of the Services under this Agreement. Neither party shall
reassign or replace its Account Representative during the first year of his or
her assignment without the consent of the other party, except if such
individual voluntarily resigns, is dismissed for cause, or is unable to work
due to his or her death or disability.
18.2 Reporting and Meetings. Within sixty (60) days after the
Effective Date, the parties shall mutually agree upon an appropriate set of
periodic reports to be issued by M&I to Customer during the Conversion Period
and during the
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remainder of the Term. Within sixty (60) days after the Effective Date, the
parties will mutually agree on an appropriate set of periodic meetings to be
held between the Account Representatives during the Conversion Period and the
remainder of the Term. Meetings shall be held to review performance, changes,
resource utilization and such other matter as appropriate.
18.3 Development Projects and Technical Support. Upon Customer's
written request, M&I will develop and provide to Customer a good faith estimate
of any additional charges which Customer may incur in connection with the
operation of any new software, major modification or enhancements developed by
M&I or the acquisition of Third Party software. Customer agrees that M&I will
have the opportunity to bid on and be considered for all software development,
maintenance and other technology projects related to the Services that Customer
wishes to implement. Nothing contained herein shall obligate M&I to develop
enhancements requested by Customer.
19. REGULATORY COMPLIANCE Customer is solely responsible for monitoring and
interpreting (and for complying with, to the extent such compliance requires no
action by M&I) the federal and state laws, rules and regulations pertaining to
Customer's business (the "Legal Requirements"). Customer is responsible for
selecting the processing parameter settings, features and options within M&I's
system that will apply to Customer and for determining that such selections are
consistent with the Legal Requirements and with the terms and conditions of any
agreements between Customer and its clients. In making such determinations,
Customer may rely upon the written descriptions of such settings, features and
options contained in the User Manuals. M&I shall perform system processing in
accordance with the processing parameter settings, features and options
selected by the Customer.
Subject to the foregoing, M&I shall perform an on-going review of federal
regulations. M&I shall maintain the features and functions set forth in the
User Manuals for each of the Services in accordance with all changes in federal
laws and regulations applicable to such features and functions, in a non-custom
environment. For any new federal laws and regulations, M&I will perform a
business review, with input from M&I's customers and user groups. If M&I
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elects to support a new federal law or regulation through changes to M&I's
service bureau software, M&I shall develop and implement modifications to the
Services to enable Customer to comply with such new federal laws and
regulations. In all other circumstances relating to regulatory compliance of
the Services, including state laws and regulations, the provisions of Section
6.2 above (New Services) shall apply.
In any event, M&I shall work with Customer in developing and
implementing a suitable procedure or direction to enable Customer to comply
with federal and state laws and regulations applicable to the Services being
provided by M&I to Customer, including in those instances when it is not
commercially practicable for M&I to modify its service bureau software prior to
the regulatory deadline for compliance.
20. DISASTER RECOVERY
20.1 Services Continuity Plan. M&I shall maintain throughout the Term
of the Agreement a Services Continuity Plan (the "Plan") in compliance with all
regulatory requirements. "Disaster" shall have the meaning set forth in the
Plan. Review and acceptance of Plan as may be required by any applicable
regulatory agency shall be the responsibility of Customer. M&I shall cooperate
with Customer in conducting such reviews as such regulatory agency may from
time to time reasonably request. A detailed Executive Summary of the Services
Continuity Plan has been provided to Customer. Updates to the Plan shall be
provided to Customer without charge.
20.2 Relocation. If appropriate, M&I shall relocate all affected
Services to an alternate disaster recovery site as expeditiously as possible
after declaration of a Disaster, and shall coordinate with Customer all
requisite telecommunications modifications necessary to achieve full
connectivity to the disaster recovery site, in material compliance with all
regulatory requirements.
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20.3 Resumption of Services. The Plan provides that, in the event of a
Disaster, M&I will be able to resume the Services in accordance therewith
within the time periods specified in the Plan. In the event M&I is unable to
resume the Services to Customer within the time periods specified in the Plan,
Customer shall have the right to terminate this Agreement without penalty upon
written notice to M&I delivered within forty-five (45) days after declaration
of such Disaster.
20.4 Annual Test. M&I shall test its Plan by conducting one (1) test
annually and shall provide Customer with a description of the test results in
accordance with applicable laws and regulations.
21. GENERAL TERMS AND CONDITIONS
21.1 Transmission of Data. The responsibility and expense for
transportation and transmission of, and the risk of loss for, data and media
transmitted between M&I and Customer shall be borne by Customer. Data lost by
M&I following processing, including loss of data transmission, shall either be
restored by M&I from its backup media or shall be reprocessed from Customer's
backup media at no charge.
21.2 Equipment and Network. Customer shall obtain and maintain at its
own expense its own data processing and communications equipment as may be
necessary or appropriate to facilitate the proper use and receipt of the
Services. Customer shall pay all installation, monthly, and other charges
relating to the installation and use of communications lines in connection with
the Services. M&I maintains and will continue to maintain a network control
center with diagnostic capability to monitor communication line reliability and
availability. M&I shall not be responsible for the continued availability or
reliability of the communications lines used by Customer in accessing the
Services. M&I agrees to perform reasonable diagnostic services and communicate
to vendors any deficiencies of which M&I is, or becomes, aware.
21.3 Reliance on Data. M&I will perform the Services described in this
Agreement on the basis of information furnished by Customer. M&I shall be
entitled to rely upon
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any such data, information, or instructions as provided by Customer. If any
error results from incorrect input supplied by Customer, Customer shall be
responsible for discovering and reporting such error and supplying the data
necessary to correct such error to M&I for processing at the earliest possible
time.
21.4 Data Backup. Customer shall maintain adequate records for at
least ten (10) business days including (i) microfilm images of items being
transported to M&I or (ii) backup on magnetic tape or other electronic media
where transactions are being transmitted to M&I, from which reconstruction of
lost or damaged items or data can be made. Customer assumes all responsibility
and liability for any loss or damage resulting from failure to maintain such
records.
21.5 Balancing and Controls. Customer shall (a) on a daily basis,
review all input and output, controls, reports, and documentation, to ensure
the integrity of data processed by M&I; and (b) on a daily basis, check
exception reports to verify that all file maintenance entries and nondollar
transactions were correctly entered. Customer shall be responsible for
initiating timely remedial action to correct any improperly processed data
which these reviews disclose.
21.6 Use of Services. Customer assumes exclusive responsibility for
the consequences of any Proper Instructions Customer may give M&I, for
Customer's failure to properly access the Services in the manner prescribed by
M&I, and for Customer's failure to supply accurate input information; Customer
agrees that, except as otherwise permitted in this Agreement or in writing by
M&I, Customer will use the Services only for its own internal business purposes
to service its banking customers and clients and will not sell or otherwise
provide, directly or indirectly, any of the Services or any portion thereof to
any Third Party.
21.7 Regulatory Assurances. M&I and Customer acknowledge and agree
that the performance of these Services will be subject to regulation and
examination by Customer's regulatory agencies to the same extent as if such
Services were being performed by Customer. Upon request, M&I agrees to provide
any appropriate assurances to such agency and agrees to subject itself to any
required examination or
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regulation. Customer agrees to reimburse M&I for reasonable costs actually
incurred due to any such examination or regulation that is performed solely for
the purpose of examining Services used by Customer.
A. Notice Requirements. The Customer shall be responsible for
complying with all regulatory notice provisions to any applicable governmental
agency, which shall include providing timely and adequate notice to the Chief
Examiner of the Federal Home Loan Bank Board, the Office of Thrift Supervision,
the Office of the Comptroller of the Currency, The Federal Deposit Insurance
Corporation, the Federal Reserve Board, or their successors, as applicable
(collectively, the "Federal Regulators"), as of the Effective Date of this
Agreement, identifying those records to which this Agreement shall apply and
the location at which such Services are to be performed.
B. Examination of Records. The parties agree that the records
maintained and produced under this Agreement shall, at all times, be available
for examination and audit by governmental agencies having jurisdiction over the
Customer's business, including any Federal Regulator. The Director of
Examinations of any Federal Regulator or his or her designated representative
shall have the right to ask for and to receive directly from M&I any reports,
summaries, or information contained in or derived from data in the possession
of M&I related to the Customer. M&I shall notify Customer as soon as reasonably
possible of any formal request by any authorized governmental agency to examine
Customer's records maintained by M&I, if M&I is permitted to make such a
disclosure to Customer under applicable law or regulations. Customer agrees
that M&I is authorized to provide all such described records when formally
required to do so by a Federal Regulator.
C. Audits. M&I shall cause a Third Party review of the
Operations Center and related internal controls, to be conducted annually by
its independent auditors. M&I shall provide to Customer, upon written request,
one copy of the audit report resulting from such review.
21.8 IRS Filing. Customer represents it has complied with all laws,
regulations, procedures, and requirements in attempting to secure correct tax
identification numbers (TINs) for Customer's payees and customers and agrees to
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attest to this compliance by an affidavit provided annually. Customer
authorizes M&I to act as Customer's agent and sign on Customer's behalf the
Affidavit required by the Internal Revenue Service on Form 4804, or any
successor form. Exhibit B (Attorney-in-Fact Appointment) and Exhibit C
(Affidavit) shall be executed by Customer contemporaneously with the execution
of this Agreement. Customer acknowledges that M&I's execution of the Form 4804
Affidavit on Customer's behalf does not relieve Customer of responsibility to
provide accurate TINs or liability for any penalties which may be assessed for
failure to comply with TIN requirements.
21.9 Affiliates. All processing for Customer and Customer's Affiliates
which M&I does at Customer's request shall be included as part of the Services
provided under this Agreement and shall be done in accordance with the terms
and conditions of this Agreement. Customer agrees that it is responsible for
assuring compliance with the Agreement by its Affiliates. Customer agrees to be
responsible for the submission of its Affiliates' data to M&I for processing
and for the transmission to Customer's Affiliates of such data processed by and
received from M&I. Customer agrees to pay any and all fees owed under this
Agreement for Services rendered to it and its Affiliates.
21.10 Future Acquisitions. Customer acknowledges that M&I has
established the Fee Schedule and enters into this Agreement on the basis of
M&I's understanding of the Customer's current need for Services and Customer's
anticipated future need for Services as a result of internally generated
expansion of its customer base. If the Customer expands its operations by
acquiring Control of additional financial institutions or the Customer
experiences a Change in Control (as hereinafter defined), the following
provisions shall apply:
A. Acquisition of Additional Entities. If Customer acquires
Control after the date hereof of one or more bank holding companies, banks,
savings and loan associations or other financial institutions that are not
currently Affiliates, M&I agrees to provide Services for such new Affiliates at
Customer's request and such Affiliates shall automatically be included in the
definition of "Customer"; provided that (a) the Conversion of each new
Affiliate must be scheduled at a mutually agreeable time
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(taking into account, among other things, the availability of M&I Conversion
resources) and must be completed before M&I has any obligation to provide
Services to such new Affiliate; (b) the Customer will be liable for any and all
Expenses in connection with the Conversion of such new Affiliate; and (c)
Customer shall pay Conversion Fees in an amount to be mutually agreed upon with
respect to each new Affiliate.
B. Change in Control of Customer. If a Change in Control
occurs with respect to Customer, M&I agrees to continue to provide Services
under this Agreement; provided that (a) M&I's obligation to provide Services
shall be limited to the entities comprising the Customer prior to such Change
in Control and (b) M&I's obligation to provide Services shall be limited in any
and all circumstances to the number of accounts and items processed in the
3-month period prior to such Change in Control occurring plus 25%.
22. MISCELLANEOUS PROVISIONS
22.1 Governing Law. The validity, construction and interpretation of
this Agreement and the rights and duties of the parties hereto shall be
governed by the internal laws of the State of Wisconsin, excluding its
principles of conflict of laws.
22.2 Venue and Jurisdiction. In the event of litigation to enforce the
terms of this Agreement, the parties consent to venue in an exclusive
jurisdiction of the courts of Milwaukee County, Wisconsin and the Federal
District Court for the Eastern District of Wisconsin. The parties further
consent to the jurisdiction of any federal or state court located within a
district which encompasses assets of a party against which a judgment has been
rendered, either through arbitration or litigation, for the enforcement of such
judgment or award against such party or the assets of such party.
22.3 Entire Agreement; Amendments. This Agreement, together with the
exhibits and schedules hereto, constitutes the entire agreement between M&I and
the Customer with respect to the subject matter hereof. There are no
restrictions, promises, warranties, covenants or undertakings other than those
expressly set forth herein and
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therein. This Agreement supersedes all prior negotiations, agreements, and
undertakings between the parties with respect to such matter. This Agreement,
including the exhibits and schedules hereto, may be amended only by an
instrument in writing executed by the parties or their permitted assignees.
22.4 Assignment. This Agreement may not be assigned by either party,
by operation of law or otherwise, without the prior written consent of the
other party, which consent shall not be unreasonably withheld, provided that
(a) M&I's consent need not be obtained in connection with the assignment of
this Agreement pursuant to a merger in which Customer is a party and as a
result of which the surviving Entity becomes an Affiliate of another bank
holding company, bank, savings and loan association or other financial
institution having a capital and surplus of at least $100,000,000, so long as
the provisions of Section 21.10 are complied with; and (b) M&I may freely
assign this Agreement (i) in connection with a merger, corporate reorganization
or sale of all or substantially all of its assets, stock or securities, or (ii)
to any entity which is a successor to the assets or the business of the M&I
Data Services division of M&I.
22.5 Relationship of Parties. The performance by M&I of its duties and
obligations under this Agreement shall be that of an independent contractor and
nothing contained in this Agreement shall create or imply an agency's
relationship between Customer and M&I, nor shall this Agreement be deemed to
constitute a joint venture or partnership between Customer and M&I.
22.6 Notices. Except as otherwise specified in the Agreement, all
notices, requests, approvals, consents and other communications required or
permitted under this Agreement shall be in writing and shall be personally
delivered or sent by (i) first class U.S. mail, registered or certified, return
receipt requested, postage pre-paid; or (ii) U.S. express mail, or other,
similar overnight courier service to the address specified below. Notices shall
be deemed given on the day actually received by the party to whom the notice is
addressed.
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In the case of Customer: The Jacksonville Bank
0000 Xxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx XX 00000
Attn: Xx. Xxxxxx X. Xxxxxx
President and Chief
Executive Officer
For Billing Purposes: ---------------------------
---------------------------
---------------------------
---------------------------
In the case of M&I: M&I Data Services
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxx Xxxx XX 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Vice President
Sales & Marketing
Xxxxxx X. Xxxxxx, Esq.
Vice President and
General Counsel
22.7 Headings. Headings in this Agreement are for reference purposes
only and shall not effect the interpretation or meaning of this Agreement.
22.8 Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original but all
of which together constitute one and the same agreement.
22.9 Waiver. No delay or omission by either party to exercise any
right or power it has under this Agreement shall impair or be construed as a
waiver of such right or power. A waiver by any party of any breach or covenant
shall not be construed to be a waiver of any succeeding breach or any other
covenant. All waivers must be in writing and signed by the party waiving its
rights.
22.10 Severability. If any provision of this Agreement is held by court
or arbitrator of competent jurisdiction to be contrary to law, then the
remaining provisions of this Agreement will remain in full force and effect.
Articles 11, 13 and 17 shall survive the expiration or earlier termination of
this Agreement for any reason.
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22.11 Attorneys' Fees and Costs. If any legal action is commenced in
connection with the enforcement of this Agreement or any instrument or
agreement required under this Agreement, the prevailing party shall be entitled
to costs, attorneys' fees actually incurred, and necessary disbursements
incurred in connection with such action, as determined by the court.
22.12 Financial Statements. M&I agrees to furnish to the Customer
copies of the then-current annual report for the Xxxxxxxx & Xxxxxx Corporation,
within 45 days after such document is made publicly available.
22.13 Publicity. Neither party shall use the other parties' name or
trademark or refer to the other party directly or indirectly in any media
release, public announcement or public disclosure relating to this Agreement or
its subject matter, in any promotional or marketing materials, lists or
business presentations, without consent from the other party for each such use
or release. Customer agrees that neither it, its directors, officers, employees
or agents shall disclose this Agreement or any of the terms or provisions of
this Agreement to any other party.
22.14 Solicitation. Neither party shall solicit the employees of the
other party during the Term of this Agreement, for any reason.
22.15 No Third Party Beneficiaries. Each party intends that this
Agreement shall not benefit, or create any right or cause of action in or on
behalf of, any person or entity other than the Customer and M&I.
22.16 Construction. M&I and Customer each acknowledge that the
limitations and exclusions contained in this Agreement have been the subject of
active and complete negotiation between the parties and represent the parties'
agreement based upon the level of risk to Customer and M&I associated with
their respective obligations under this Agreement and the payments to be made
to M&I and the charges to be incurred by M&I pursuant to this Agreement. The
parties agree that the terms and conditions of this Agreement shall not be
construed in favor of or against any party by reason of the extent to which any
party or its
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professional advisors participated in the preparation of this document.
22.17 Force Majeure. Notwithstanding any provision contained in this
Agreement, neither party shall be liable to the other to the extent fulfillment
or performance if any terms or provisions of this Agreement is delayed or
prevented by revolution or other civil disorders; wars; acts of enemies;
strikes; lack of available resources from persons other than parties to this
Agreement; labor disputes; electrical equipment or availability failure; fires;
floods; acts of God; federal, state or municipal action; statute; ordinance or
regulation; or, without limiting the foregoing, any other causes not within its
control, and which by the exercise of reasonable diligence it is unable to
prevent, whether of the class of causes hereinbefore enumerated or not. This
clause shall not apply to the payment of any sums due under this Agreement by
either party to the other.
23. SOURCE CODE
23.1 Escrow. M&I has entered into a Master Preferred Escrow Agreement
("Escrow Agreement") with Data Securities International, Inc. ("DSI"), Account
no. 0000000-0001, pursuant to which M&I has deposited with DSI the source code
for the IBS Licensed Software (the "IBS Software").
23.2 Copy of Source Code. M&I agrees that Customer shall have the
right to obtain a copy of the source code for the IBS Software pursuant to the
terms and conditions of this Article 23. M&I may change the escrow agent and
shall promptly notify Customer of such change.
23.3 Cost of Escrow. Customer shall be responsible for the cost of
establishing, maintaining and updating the source code escrow including any
fees to be paid to the escrow agent.
23.4 Customer's Right to Obtain the Source Code. M&I hereby grants to
Customer a non-exclusive, non-transferable license, through the end of the
Term, to use the source code (including the right to make modifications
thereto) on the terms and conditions set forth in this Article 23, upon
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payment of the then-current license fees and the occurrence of the following
events:
1. M&I ceases to do business or refuses to provide the
Services to Customer; or
2. A voluntary or involuntary petition is commenced by or
against M&I under any federal or state bankruptcy law, or a trustee in
bankruptcy fails to timely assume this Agreement as an executory contract, or a
substantial part of M&I's property or assets become subject to levy or seizure
by any creditor and, in the case of an involuntary petition, the same is not
dismissed within sixty (60) days after filing.
23.5 Use of Source Code. In the event Customer obtains a copy of the
source code pursuant to Section 23.4 above, Customer (or its designee) shall
use the source code during the term of the license granted herein solely for
Customer's own internal processing and computing needs and to process the
Customer Data, but shall not (1) distribute, sell, transfer, assign or
sublicense the source code or any parts thereof to any Third Party, (2) use the
source code in any manner to provide service bureau, time sharing or other
computer services to Third Parties, or (3) use any portion of the source code
to process data under any application or functionality other than those
applications or functionalities which were being provided by M&I to Customer at
the time Customer became entitled to receive a copy of the source code.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in their names as of the date first above written.
XXXXXXXX & XXXXXX CORPORATION ("M&I")
0000 X. Xxxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
By: ________________________
Name: Xxxxxxx X. Xxx
Title: President, Outsourcing Business
Group
By: ________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Sales & Marketing
THE JACKSONVILLE BANK ("CUSTOMER")
0000 Xxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx XX 00000
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President and
Chief Executive Officer
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EXHIBIT A
AUTHORIZATION AGREEMENT
The undersigned ("Customer") hereby authorizes M&I Data Services, a
division of the Xxxxxxxx & Xxxxxx Corporation, ("M&I") to initiate debit
entries and to initiate, if necessary, credit entries and adjustments for any
excess debit entries or debit entries made in error, to Customer's account
indicated below and the depository named below, to debit and/or credit the same
such account.
This authority is to remain in full force and effect for the period coinciding
with the term (and any renewals thereof) of the Outsourcing Agreement made the
13th day of May 1998, and any addenda thereto (the "Agreement"), pursuant to the
terms and conditions specified in the Agreement.
DEPOSITORY NAME: ________________________________
ADDRESS: ________________________________
CITY/STATE/ZIP:
________________________________
TELEPHONE NUMBER:
________________________________
ROUTING TRANSIT NUMBER:
________________________________
ACCOUNT NUMBER:
________________________________
THE JACKSONVILLE BANK
("CUSTOMER")
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
and Chief Executive Officer
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EXHIBIT B
ATTORNEY-IN-FACT APPOINTMENT
Customer hereby appoints M&I Data Services, a division of the
Xxxxxxxx & Ilsley Corporation ("M&I") as: (1) customer's attorney-in-fact
and empowers M&I to authorize the Internal Revenue Service (IRS) to release
information return documents supplied to the IRS by M&I to states which
participate in the "Combined Federal/State Program"; and (2) CustomerOs
agent to sign on CustomerOs behalf the Affidavit required by the Internal
Revenue Service on Form 4804, or any successor form.
THE JACKSONVILLE BANK
("CUSTOMER")
By: /s/ Xxxxxx X. Xxxxxx
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EXHIBIT C
AFFIDAVIT
STATE OF --------------------)
) SS.
COUNTY OF --------------------)
I, ___________________________________________, being first duly sworn, on oath,
depose
and say:
1. I am an employee of The Jacksonville Bank. I have personal
knowledge of my employer's practices with regard to procuring and reporting tax
identification numbers (TINs) and authority to execute this Affidavit on my
employer's behalf.
2. The Jacksonville Bank has complied with all laws, regulations,
procedures, and requirements in attempting to secure correct TINs for its
payees. This compliance has been pursued with due diligence, and any failure to
secure correct TINs is due to reasonable cause.
/s/ Xxxxxx X. Xxxxxx
Customer's Representative
Subscribed and sworn to before me
this 13th day of May, 1998.
---------------------------------
Xxxxxxx X. Xxxxxx Notary Public
My Commission expires:____________
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