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EXHIBIT 10.4
Agreement Number:
AGREEMENT
between
FISERV SOLUTIONS, INC.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
and
MERIT HOLDING CORPORATION
TUCKER, GEORGIA
Date: December 14, 1998
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AGREEMENT dated as of December 14, 1998 ("Agreement") between FISERV SOLUTIONS,
INC., a Wisconsin corporation ("Fiserv"), and MERIT HOLDING CORPORATION, a
Georgia Financial Institution ("Client").
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Fiserv and Client hereby agree as follows:
1. Term. The initial term of this Agreement shall be 5 years and, unless
written notice of non-renewal is provided by either party at least 180 days
prior to expiration of the initial term or any renewal term, this Agreement
shall automatically renew for a renewal term of 5 years. This Agreement shall
commence on the earliest of the day Fiserv Services (as defined below) are first
used by Mountain National Bank, Tucker, Georgia, and be in effect for Merit
Holding Corporation institutions.
2. Services. (a) Services Generally. Fiserv, itself and through its
affiliates, agrees to provide Client, and Client agrees to obtain from Fiserv
services ("Services") and products ("Products") (collectively, "Fiserv
Services") described in the attached Exhibits:
Exhibit A - Account Processing Services
Exhibit H - Additional Services (Disaster Recovery)
The Exhibits set forth specific terms and conditions applicable to the
Services and/or Products, and, where applicable, the Fiserv affiliate so
performing. Client may select additional services and products from time to time
by incorporating an appropriate Exhibit to this Agreement.
(b) Conversion Services. Fiserv will convert Client's existing applicable
data and/or information to the Fiserv Services. Those activities designed to
transfer the processing from Client's present servicer to the Fiserv Services
are referred to as "Conversion Services". Client agrees to cooperate with Fiserv
in connection with Fiserv's provision of Conversion Services and to provide all
necessary information and assistance to facilitate the conversion. Client is
responsible for all out-of-pocket expenses associated with the Conversion
Services. Fiserv will provide Conversion Services as required in connection with
Fiserv Services.
(c) Training Services. Fiserv shall provide training, training aids, user
manuals, and other documentation for Client's use as Fiserv finds necessary to
enable Client personnel to become familiar with Fiserv Services. If requested by
Client, classroom training in the use and operation of Fiserv Services will be
provided at a training facility designated by Fiserv. All such training aids and
manuals remain Fiserv's property.
3. Fees for Fiserv Services. (a) General. Client agrees to pay Fiserv:
(i) estimated fees for Fiserv Services for the following month as
specified in the Exhibits;
(ii) estimated out-of-pocket charges for the following month payable by
Fiserv for the account of Client; and
(iii) estimated Taxes (as defined below) thereon (collectively, "Estimated
Fees").
Fiserv shall timely reconcile Estimated Fees paid by Client for the Fiserv
Services for the month and the fees and charges actually due Fiserv based on
Client's actual use of Fiserv Services for such month. Fiserv shall either issue
a credit to Client or provide Client with
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an invoice for any additional fees or other charges owed. Fiserv may change the
amount of Estimated Fees billed to reflect appropriate changes in actual use of
Fiserv Services. Estimated Fees may be increased from time to time as set forth
in the Exhibits. Upon notification to and acceptance by Client, Fiserv may
increase its fees in excess of amounts listed in the Exhibits in the event that
Fiserv implements major system enhancements to comply with changes in law,
government regulation, or industry practices.
(b) Additional Charges. Fees for out-of-pocket expenses, such as
telephone, microfiche, courier, and other charges incurred by Fiserv for goods
or services obtained by Fiserv on Client's behalf shall be billed to Client at
cost plus the applicable Fiserv administrative fee NOT TO EXCEED 15%. Such
out-of-pocket expenses may be changed from time to time upon notification TO
CLIENT of a fee change from a vendor/provider.
(c) Taxes. Fiserv shall add to each invoice any sales, use, excise, value
added, and other taxes and duties however designated that are levied by any
taxing authority relating to the Fiserv Services ("Taxes"). In no event shall
"Taxes" include taxes based upon the net income of Fiserv.
(d) Exclusions. The Estimated Fees do not include, and Client shall be
responsible for, furnishing transportation or transmission of information
between Fiserv's service center(s), Client's site(s), and any applicable
clearing house, regulatory agency, or Federal Reserve Bank.
(e) Payment Terms. Estimated Fees are due and payable monthly upon receipt
of invoice. Client shall pay Fiserv through the Automated Clearing House OR VIA
CHECK. In the event any amounts due remain unpaid beyond the 30th day after
payment is due, Client shall pay a late charge of 1.5% per month. Client agrees
that it shall neither make nor assert any right of deduction or set-off from
Estimated Fees on invoices submitted by Fiserv for Fiserv Services. SHOULD
FISERV INADVERTENTLY INVOICE CLIENT FOR SERVICES NOT PERFORMED UPON WRITTEN
DISPUTE TO FISERV, CLIENT MAY SET-OFF SUCH FEES FROM INVOICE UNTIL DISPUTE IS
RESOLVED.
4. Access to Fiserv Services. (a) Procedures. Client agrees to comply with
applicable regulatory requirements and procedures for use of Services
established by Fiserv.
(b) Changes. Fiserv continually reviews and modifies Fiserv systems used
in the delivery of Services (the "Fiserv System") to improve service and comply
with government regulations, if any, applicable to the data and information
utilized in providing Services. Fiserv reserves the right to make changes in
Services, including but not limited to operating procedures, type of equipment
or software resident at, and the location of Fiserv's service center(s). Fiserv
will notify Client of any material change that affects Client's normal operating
procedures OR reporting prior to implementation of such change.
(c) Communications Lines. Fiserv shall order the installation of
appropriate communication lines and equipment to facilitate Client's access to
Services. Client understands and agrees to pay charges relating to the
installation and use of such lines and equipment as set forth in the Exhibits.
(d) Terminals and Related Equipment. Client shall obtain necessary and
sufficient terminals and other equipment, approved by Fiserv and compatible with
the Fiserv System, to transmit and receive data and information between Client's
location(s), Fiserv's service center(s), and/or other necessary location(s).
Fiserv and Client may mutually agree to change the type(s) of terminal and
equipment used by Client.
5. Client Obligations. (a) Input. Client shall be solely responsible
for the input, transmission, or delivery to and from Fiserv of all information
and data required by Fiserv to perform Services unless Client has retained
Fiserv to handle such responsibilities, as specifically set forth in the
Exhibits. The information and data shall be provided in a format and manner
approved by Fiserv. Client will provide at its own expense or procure from
Fiserv all equipment, computer software, communication lines, and interface
devices required to access the Fiserv System. If Client has elected to provide
such items itself, Fiserv shall provide Client with a list of compatible
equipment and software; Client agrees to pay Fiserv's standard fee for
recertification of the Fiserv System resulting therefrom.
(b) Client Personnel. Client shall designate appropriate Client personnel
for training in the use of the Fiserv System, shall supply Fiserv with
reasonable access to Client's site during normal business hours for Conversion
Services and shall cooperate with Fiserv personnel in their performance of
Services, including Conversion Services.
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(c) Use of Fiserv System. Client shall (i) comply with any operating
instructions on the use of the Fiserv System provided by Fiserv; (ii) review all
reports furnished by Fiserv for accuracy; and (iii) work with Fiserv to
reconcile any out of balance conditions. Client shall determine and be
responsible for the authenticity and accuracy of all information and data
submitted to Fiserv.
(d) Client's Systems. Client shall be responsible for ensuring that its
systems EXCLUSIVE OF THE FISERV SYSTEM are Year 2000 compliant and capable of
passing and/or accepting date formats from and/or to the Fiserv System.
6. Ownership and Confidentiality. (a) Definition.
(i) Client Information. "Client Information" means: (A) confidential
plans, customer lists, information, and other proprietary material of
Client that is marked with a restrictive legend, or if not so marked with
such legend or is disclosed orally, is identified as confidential at the
time of disclosure (and written confirmation thereof is promptly provided
to Fiserv); and (B) any information and data concerning the business and
financial records of Client's customers prepared by or for Fiserv, or used
in any way by Fiserv in connection with the provision of Fiserv Services
(whether or not any such information is marked with a restrictive legend).
(ii) Fiserv Information. "Fiserv Information" means: (A) confidential
plans, information, research, development, trade secrets, business affairs
(including that of any Fiserv client, supplier, or affiliate), and other
proprietary material of Fiserv that is marked with a restrictive legend,
or if not so marked with such legend or is disclosed orally, is identified
as confidential at the time of disclosure (and written confirmation
thereof is promptly provided to Client); and (B) Fiserv's proprietary
computer programs, including custom software modifications, software
documentation and training aids, and all data, code, techniques,
algorithms, methods, logic, architecture, and designs embodied or
incorporated therein (whether or not any such information is marked with a
restrictive legend).
(iii) Information. "Information" means Client Information and Fiserv
Information. No obligation of confidentiality applies to any Information
that the receiving party ("Recipient") (A) already possesses without
obligation of confidentiality; (B) develops independently; or (C)
rightfully receives without obligation of confidentiality from a third
party. No obligation of confidentiality applies to any Information that
is, or becomes, publicly available without breach of this Agreement.
(b) Obligations. Recipient agrees to hold as confidential all Information
it receives from the disclosing party ("Discloser"). All Information shall
remain the property of Discloser or its suppliers and licensors. Information
will be returned to Discloser at the termination or expiration of this
Agreement. Recipient will use the same care and discretion to avoid disclosure
of Information as it uses with its own similar information that it does not wish
disclosed, but in no event less than a reasonable standard of care. Recipient
may use Information for any purpose that does not violate such obligation of
confidentiality. Recipient may disclose Information to (i) employees and
employees of affiliates who have a need to know; and (ii) any other party with
Discloser's written consent. Before disclosure to any of the above parties,
Recipient will have a written agreement with such party sufficient to require
that party to treat Information in accordance with this Agreement. Recipient may
disclose Information to the extent required by law. However, Recipient agrees to
give Discloser prompt notice so that it may seek a protective order. The
provisions of this sub-section survive any termination or expiration of this
Agreement.
(c) Residuals. Nothing contained in this Agreement shall restrict
Recipient from the use of any ideas, concepts, know-how, or techniques contained
in Information that are related to Recipient's business activities
("Residuals"), provided that in so doing, Recipient does not breach its
obligations under this Section. However, this does not give Recipient the right
to disclose the Residuals except as set forth elsewhere in this Agreement.
(d) Fiserv System. The Fiserv System contains information and computer
software that are proprietary and confidential information of Fiserv, its
suppliers, and licensors. Client agrees not to attempt to circumvent the devices
employed by Fiserv to prevent unauthorized access to the Fiserv System,
including, but not limited to, alterations, decompiling, disassembling,
modifications, and reverse engineering thereof.
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(e) Confidentiality of this Agreement. Fiserv and Client agree to keep
confidential the prices, terms and conditions of this Agreement, without
disclosure to third parties; EXCEPT FOR EACH PARTY'S ACCOUNTANTS, LAWYERS,
FINANCIAL ADVISORS AND REGULATORY AGENCIES.
7. Regulatory Agencies, Regulations and Legal Requirements. (a) Client
Files. Records maintained and produced for Client ("Client Files") may be
subject to examination by such Federal, State, or other governmental regulatory
agencies as may have jurisdiction over Client's business to the same extent as
such records would be subject if maintained by Client on its own premises.
Client agrees that Fiserv is authorized to give all reports, summaries, or
information contained in or derived from the data or information in Fiserv's
possession relating to Client when formally requested to do so by an authorized
regulatory or government agency.
(b) Compliance with Regulatory Requirements. Client agrees to comply with
applicable regulatory and legal requirements, including without limitation:
(i) submitting a copy of this Agreement to the appropriate regulatory
agencies prior to the date Services commence;
(ii) providing adequate notice to the appropriate regulatory agencies of
the termination of this Agreement or any material changes in Services;
(iii) retaining records of its accounts as required by regulatory
authorities;
(iv) obtaining and maintaining, at its own expense, any Fidelity Bond
required by any regulatory or governmental agency; and
(v) maintaining, at its own expense, such casualty and business
interruption insurance coverage for loss of records from fire, disaster,
or other causes, and taking such precautions regarding the same, as may be
required by regulatory authorities.
8. Warranties. (a) Fiserv Warranties. Fiserv represents and warrants that:
(i)(A) Services will conform to the specifications set forth in the SYSTEM
DOCUMENTATION; (B) Fiserv will perform Client's work accurately provided
that Client supplies accurate data and information, and follows the
procedures described in all Fiserv documentation, notices, and advices;
(C) Fiserv personnel will exercise due care in provision of Services; (D)
FISERV WILL MAKE ALL REASONABLE EFFORTS ENSURING THE FISERV SYSTEM WILL
COMPLY WITH ALL APPLICABLE FEDERAL AND STATE REGULATIONS GOVERNING
SERVICES; and (E) the Fiserv System will be Year 2000 compliant by
December 31, 1998. In the event of an error or other default caused by
Fiserv personnel, systems, or equipment, Fiserv shall correct the data or
information and/or reprocess the affected item or report at no additional
cost to Client. Client agrees to supply Fiserv with a written request for
correction of the error within 7 days after Client's receipt of the work
containing the error. Work reprocessed due to errors in data supplied by
Client, on Client's behalf by a third party, or by Client's failure to
follow procedures set forth by Fiserv shall be billed to Client at
Fiserv's then current time and material rates; (ii) it owns or has a
license to furnish all equipment or software comprising the Fiserv System.
Fiserv shall indemnify Client and hold it harmless against any claim or
action that alleges that the Fiserv System use infringes a United States
patent, copyright, or other proprietary right of a third party;
ADDITIONALLY, Client agrees to notify Fiserv promptly of any such claim
and grants Fiserv the sole right to control the defense and disposition of
all such claims. Client shall provide Fiserv with reasonable cooperation
and assistance in the defense of any such claim; and (iii) for purposes of
this Agreement, "Year 2000 compliance" or "Year 2000 compliant" is defined
by reference to the following criteria:
Criterion Description
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General Integrity: No value for current date will cause interruptions
in normal operation
Date Integrity: All manipulations of calendar-related date (dates,
durations, days of Week, etc.) will produce desired
results for all valid date values.
Century Specifications: Either (i) date elements in interfaces and data
storage permit specifying century to eliminate
date ambiguity, or (ii) for any date element represented
without century, the correct century is unambiguous for
all manipulations involving that element.
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THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES
MADE BY FISERV. FISERV DOES NOT MAKE, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL
OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE STATED EXPRESS WARRANTIES, THE WARRANTY IN SECTION 10(E)
BELOW AND THE LIMITATION ON LIABILITY SET FORTH IN SECTION 9 BELOW ARE IN LIEU
OF ALL LIABILITIES OR OBLIGATIONS OF FISERV FOR DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF FISERV SERVICES.
(b) Client Warranties. Client represents and warrants that: (A) no
contractual obligations exist that would prevent Client from entering into this
Agreement; (B) it has complied with all applicable regulatory requirements; and
(C) Client has requisite authority to execute, deliver, and perform this
Agreement. Client shall indemnify and hold harmless Fiserv, its officers,
directors, employees, and affiliates against any claims or actions arising out
of (X) the use by Client of the Fiserv System in a manner other than that
provided in this Agreement; and (Y) any and all claims by third parties through
Client arising out of the performance and non-performance of Fiserv Services by
Fiserv, provided that the indemnity listed in clause (Y) hereof shall not
preclude Client's recovery of direct damages pursuant to the terms and subject
to the limitations of this Agreement.
9. Limitation of Liability. (a) General. IN NO EVENT SHALL FISERV BE
LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING FROM CLIENT'S USE OF FISERV SERVICES, OR FISERV'S
SUPPLY OF EQUIPMENT OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT
OR IN CONTRACT. CLIENT MAY NOT ASSERT ANY CLAIM AGAINST FISERV MORE THAN 2 YEARS
AFTER SUCH CLAIM ACCRUED. FISERV'S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF
ACTION RELATING TO SERVICES SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO
FISERV FOR SERVICES RESULTING IN SUCH LIABILITY IN THE 6 MONTH PERIOD PRECEDING
THE DATE THE CLAIM ACCRUED. FISERV'S AGGREGATE LIABILITY FOR A DEFAULT RELATING
TO EQUIPMENT OR SOFTWARE SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT FOR THE
EQUIPMENT OR SOFTWARE.
(b) Lost Records. If Client's records or other data submitted for
processing are lost or damaged as a result of any failure by Fiserv, its
employees, or agents to exercise reasonable care to prevent such loss or damage,
Fiserv's liability on account of such loss or damages shall not exceed the
reasonable cost of reproducing such records or data from exact duplicates
thereof in Client's possession.
10. Disaster Recovery. (a) General. Fiserv maintains a disaster recovery
plan ("Disaster Recovery Plan") for each Service. A "Disaster" shall mean any
unplanned interruption of the operations of or inaccessibility to Fiserv's
service center in which Fiserv, using reasonable judgment, requires relocation
of processing to a recovery location AND WHICH IS BEYOND REASONABLE CONTROL OF
FISERV. Fiserv shall notify Client as soon as possible after Fiserv deems a
service outage to be a Disaster. Fiserv shall move the processing of Client's
standard services to a recovery location as expeditiously as possible and shall
coordinate the cut-over to back-up telecommunication facilities with the
appropriate carriers. Client shall maintain adequate records of all transactions
during the period of service interruption and shall have personnel available to
assist Fiserv in implementing the switchover to the recovery location. During a
Disaster, optional or on-request services shall be provided by Fiserv only to
the extent adequate capacity exists at the recovery location and only after
stabilizing the provision of base services AS OUTLINED IN EXHIBIT A-2.
(b) Communications. Fiserv shall work with Client to establish a plan for
alternative communications in the event of a Disaster.
(c) Disaster Recovery Test. Fiserv shall test the Disaster Recovery Plan
periodically. Client agrees to participate in and assist Fiserv with such test,
if requested by Fiserv. Upon Client request, test results will be made available
to Client's management, regulators, auditors, and insurance underwriters.
(d) Client Plans. Fiserv agrees to release information necessary to allow
Client's development of a disaster recovery plan that operates in concert with
the Disaster Recovery Plan.
(e) Warranty. Client understands and agrees that the Disaster Recovery
Plan is designed to minimize, but not eliminate, risks associated with a
Disaster affecting Fiserv's service center(s). Fiserv does not warrant that
Fiserv Services will be uninterrupted or error free in the event of a Disaster.
Client maintains responsibility for adopting a disaster recovery plan relating
to disasters affecting Client's facilities and for securing business
interruption insurance or other insurance necessary for Client's protection.
PRECLUDING A
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REGIONAL ACT OF GOD DISASTER, IF THE BANK IS DOWN FOR MORE THAN TWO (2)
CONSECUTIVE BUSINESS DAYS, FISERV WILL CREDIT THE CLIENT ONE HUNDRED PERCENT
(100%) OF AVERAGE DAILY FEES, BEGINNING THE THIRD BUSINESS DAY. AVERAGE DAILY
FEES WILL BE CALCULATED BASED ON THE PRIOR FOUR (4) MONTHS TOTAL INVOICE DIVIDED
BY THE NUMBER OF BUSINESS DAYS IN EACH OF THE MONTHS.
11. Termination. (a) Material Breach. Except as provided elsewhere in this
Section 11, either party may terminate this Agreement in the event of a material
breach by the other party not cured within 60 days following written notice
stating, with particularity and in reasonable detail, the nature of the claimed
breach.
(b) Failure to Pay. In the event any invoice remains unpaid by Client 30
days after due, or Client deconverts any data or information from the Fiserv
System without prior written consent of Fiserv, Fiserv, at its sole option, may
terminate this Agreement and/or Client's access to and use of Fiserv Services.
Any invoice submitted by Fiserv shall be deemed correct unless Client provides
written notice to Fiserv within 60 days of the invoice date specifying the
nature of the disagreement.
(c) Remedies. Remedies contained in this Section 11 are cumulative and are
in addition to the other rights and remedies available to Fiserv under this
Agreement, by law or otherwise.
(d) Defaults. If Client:
(i) defaults in the payment of any sum of money due;
(ii) breaches this Agreement in any material respect or otherwise defaults
in any material respect in the performance of any of its obligations; or
(iii) commits an act of bankruptcy or becomes the subject of any
proceeding under the Bankruptcy Code or becomes insolvent or if any
substantial part of Client's property becomes subject to any levy,
seizure, assignment, application, or sale for or by any creditor or
governmental agency;
then, in any such event, Fiserv may, upon written notice, terminate this
Agreement and be entitled to recover from Client as liquidated damages an amount
equal to the present value of all payments remaining to be made hereunder for
the remainder of the initial term or any renewal term of this Agreement. For
purposes of the preceding sentence, present value shall be computed using the
"prime" rate (as published in The Wall Street Journal) in effect at the date of
termination and "all payments remaining to be made" shall be calculated based on
the average bills for the 3 months immediately preceding the date of
termination. Client agrees to reimburse Fiserv for any expenses Fiserv may
incur, including reasonable attorneys' fees, in taking any of the foregoing
actions.
IF FISERV:
(I)BREACHES THIS AGREEMENT IN ANY MATERIAL RESPECT OR OTHERWISE DEFAULTS
IN ANY MATERIAL RESPECT IN THE PERFORMANCE OF ANY OF ITS OBLIGATIONS; OR
(II)COMMITS AN ACT OF BANKRUPTCY OR BECOMES THE SUBJECT OF ANY PROCEEDING
UNDER THE BANKRUPTCY CODE OR BECOME INSOLVENT OR IF ANY SUBSTANTIAL PART
OF FISERV'S PROPERTY BECOMES SUBJECT TO ANY LEVY, SEIZURE, ASSIGNMENT,
APPLICATION, OR SALE FOR OR BY ANY CREDITOR OR GOVERNMENTAL AGENCY;
THEN, IN ANY SUCH EVENT, CLIENT MAY, UPON WRITTEN NOTICE, TERMINATE THIS
AGREEMENT, WITHOUT PENALTY OR DECONVERSION FEES.
(e) Convenience. Client may terminate this Agreement during any term by
paying a termination fee based on the remaining unused term of this Agreement,
the amount to be determined by multiplying Client's largest monthly invoice for
each Fiserv Service received by Client during the term (or if no monthly invoice
has been received, the sum of the estimated monthly billing for each Fiserv
Service to be received hereunder) BY (I) 80% TIMES THE REMAINING MONTHS OF THE
TERM DURING THE FIRST 36 MONTHS FOLLOWING CLIENT'S CONVERSION TO THE FISERV
SERVICES; OR (II) 70% TIMES THE REMAINING MONTHS OF THE TERM DURING THE MONTHS
37-48 FOLLOWING CLIENT'S CONVERSION TO THE FISERV SERVICES; OR (III) 60% TIMES
THE REMAINING MONTHS OF THE TERM DURING THE MONTHS 49-60 FOLLOWING CLIENT'S
CONVERSION TO THE FISERV SERVICES, PLUS ANY UNAMORTIZED CONVERSION FEES OR THIRD
PARTY COSTS EXISTING ON FISERV'S BOOKS ON THE DATE OF TERMINATION. Client
understands and agrees that Fiserv losses incurred as a result of early
termination of the Agreement would be difficult or impossible to calculate as of
the effective date of termination since they will vary based on, among other
things, the number of clients using the Fiserv System on the date the Agreement
terminates. Accordingly, the amount set forth in the first sentence of this
subsection represents Client's agreement to pay and Fiserv's agreement
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to accept as liquidated damages (and not as a penalty) such amount for any such
Client termination. TERMINATION PRIOR TO THE 36TH MONTH SHALL BE GOVERNED BY THE
SPECIAL ADDENDUM.
(f) Merger. In the event of a merger between Client and another
organization in which Client is not the surviving organization and where the
other organization was not previously a user of Fiserv services similar to the
Services, Fiserv will allow an early termination of this Agreement upon the
following terms and conditions:
(i) written notice must be given 3 months in advance, specifying the
termination date;
(ii) Fiserv may specify a deconversion date based on its previous
commitments and work loads; and
(iii) Fiserv may charge a termination fee in accordance with subsection
(e) above.
(g) Return of Data Files. Upon expiration or termination of this
Agreement, Fiserv shall furnish to Client such copies of Client Files as Client
may request in Fiserv's standard machine readable format along with such
information and assistance as is reasonable and customary to enable Client to
deconvert from the Fiserv System, provided, however, that Client consents and
agrees and authorizes Fiserv to retain Client Files until (i) Fiserv is paid in
full for (A) all Services provided through the date such Client Files are
returned to Client; and (B) any and all other amounts that are due or will
become due under this Agreement; (ii) Fiserv is paid its then standard rates for
the services necessary to return such Client Files; (iii) if this Agreement is
being terminated, Fiserv is paid any applicable termination fee pursuant to
subsection (d), (e), or (f) above; and (iv) Client has returned to Fiserv all
Fiserv Information. Unless directed by Client in writing to the contrary, Fiserv
shall be permitted to destroy Client Files any time after 60 days from the final
use of Client Files for processing.
(h) Miscellaneous. Client understands and agrees that Client is
responsible for the deinstallation and return shipping of any Fiserv-owned
equipment located on Client's premises.
12. Arbitration. (a) General. Except with respect to disputes arising from
a misappropriation or misuse of either party's proprietary rights, any dispute
or controversy arising out of this Agreement, or its interpretation, shall be
submitted to and resolved exclusively by arbitration under the rules then
prevailing of the American Arbitration Association, upon written notice of
demand for arbitration by the party seeking arbitration, setting forth the
specifics of the matter in controversy or the claim being made. The arbitration
shall be heard before an arbitrator mutually agreeable to the parties; provided,
that if the parties cannot agree on the choice of arbitrator within 10 days
after the first party seeking arbitration has given written notice, then the
arbitration shall be heard by three arbitrators, one chosen by each party, and
the third chosen by those two arbitrators. The arbitrators will be selected from
a panel of persons having experience with and knowledge of information
technology and at least one of the arbitrators selected will be an attorney. A
hearing on the merits of all claims for which arbitration is sought by either
party shall be commenced not later than 60 days from the date demand for
arbitration is made by the first party seeking arbitration. The arbitrator(s)
must render a decision within 10 days after the conclusion of such hearing. Any
award in such arbitration shall be final and binding upon the parties and the
judgment thereon may be entered in any court of competent jurisdiction.
(b) Applicable Law. The arbitration shall be governed by the United
States Arbitration Act, 9 U.S.C. 1-16. The arbitrators shall apply the
substantive law of the State of Wisconsin, without reference to provisions
relating to conflict of laws. The arbitrators shall not have the power to alter,
modify, amend, add to, or subtract from any term or provision of this Agreement,
nor to rule upon or grant any extension, renewal, or continuance of this
Agreement. The arbitrators shall have the authority to grant any legal remedy
available had the parties submitted the dispute to a judicial proceeding.
(c) Situs. If arbitration is required to resolve any disputes between the
parties, the proceedings to resolve the first such dispute shall be held in
Atlanta, Georgia, the proceedings to resolve the second such dispute shall be
held in Tucker, Georgia, and the proceedings to resolve any subsequent disputes
shall alternate between Atlanta, Georgia and Tucker, Georgia.
13. Insurance. Fiserv carries the following types of insurance policies:
(i) Comprehensive General Liability in an amount not less than $1 million
per occurrence for claims arising out of bodily injury and property
damage;
(ii) Commercial Crime covering employee dishonesty in an amount not less
than $5 million;
(iii) All-risk property coverage including Extra Expense and Business
Income coverage; and
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(iv) Workers Compensation as mandated or allowed by the laws of the state
in which Services are being performed, including $500,000 coverage for
Employer's Liability.
14. Audit. Fiserv employs an internal auditor responsible for ensuring the
integrity of its processing environments and internal controls. In addition,
Fiserv provides for periodic independent audits of its operations. Fiserv shall
provide Client with a copy of the audit of the Fiserv service center providing
Services within a reasonable time after its completion and shall charge each
client a fee based on the pro rata cost of such audit. Fiserv shall also provide
a copy of such audit to the appropriate regulatory agencies, if any, having
jurisdiction over Fiserv's provision of Services.
15. General. (a) Binding Agreement. This Agreement is binding upon the
parties and their respective successors and permitted assigns. Neither this
Agreement nor any interest may be sold, assigned, transferred, pledged, or
otherwise disposed of by Client, whether pursuant to change of control or
otherwise, without Fiserv's prior written consent. Client agrees that Fiserv may
subcontract any Services to be performed hereunder. Any such subcontractors
shall be required to comply with all applicable terms and conditions.
(b) Entire Agreement. This Agreement, including its Exhibits, which are
expressly incorporated herein by reference, constitutes the complete and
exclusive statement of the agreement between the parties as to the subject
matter hereof and supersedes all previous agreements with respect thereto.
Modifications of this Agreement must be in writing and signed by duly authorized
representatives of the parties. Each party hereby acknowledges that it has not
entered into this Agreement in reliance upon any representation made by the
other party not embodied herein. In the event any of the provisions of any
Exhibit are in conflict with any of the provisions of this Agreement, the terms
and provisions of this Agreement shall control unless the Exhibit in question
expressly provides that its terms and provisions shall control, EXCEPT THAT THE
TERMS AND PROVISIONS OF EXHIBITS X-0, X-0, X-0, X-0, H AND THE SPECIAL ADDENDUM
SHALL CONTROL OVER THIS AGREEMENT.
(c) Severability. If any provision of this Agreement is held to be
unenforceable or invalid, the other provisions shall continue in full force and
effect.
(d) Governing Law. This Agreement will be governed by the substantive laws
of the State of Wisconsin, without reference to provisions relating to conflict
of laws. The United Nations Convention of Contracts for the International Sale
of Goods shall not apply to this Agreement.
(e) Force Majeure. Neither party shall be responsible for delays or
failures in performance resulting from acts reasonably beyond the control of
that party.
(f) Notices. Any written notice required or permitted to be given
hereunder shall be given by: (i) Registered or Certified Mail, Return Receipt
Requested, postage prepaid; (ii) confirmed facsimile; or (iii) nationally
recognized courier service to the other party at the addresses listed on the
cover page or to such other address or person as a party may designate in
writing. All such notices shall be effective upon receipt.
(g) No Waiver. The failure of either party to insist on strict performance
of any of the provisions hereunder shall not be construed as the waiver of any
subsequent default of a similar nature.
(h) Financial Statements. Fiserv shall provide WITHIN A REASONABLE TIME
FRAME AFTER PRODUCTION, Client and the appropriate regulatory agencies so
requiring a copy of Fiserv, Inc.'s audited consolidated financial statements.
(i) Prevailing Party. The prevailing party in any arbitration, suit, or
action brought against the other party to enforce the terms of this Agreement or
any rights or obligations hereunder, shall be entitled to receive its reasonable
costs, expenses, and attorneys' fees of bringing such arbitration, suit, or
action.
(j) Survival. All rights and obligations of the parties under this
Agreement that, by their nature, do not terminate with the expiration or
termination of this Agreement shall survive the expiration or termination of
this Agreement.
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(k) Exclusivity. Client agrees that Fiserv shall be the sole and exclusive
provider of the services that are the subject matter of this Agreement. For
purposes of the foregoing, the term "Client" shall include Client affiliates.
During the term of this Agreement, Client agrees not to enter into an agreement
with any other entity to provide these services (or similar services) without
Fiserv's prior written consent. If Client acquires another entity, the
exclusivity provided to Fiserv hereunder shall take effect with respect to such
acquired entity as soon as practicable after termination of such acquired
entity's previously existing arrangement for these services. If Client is
acquired by another entity, the exclusivity provided to Fiserv hereunder shall
apply with respect to the level or volume of these services provided immediately
prior to the signing of the definitive acquisition agreement relating to such
acquisition and shall continue with respect to the level or volume of these
services until any termination or expiration of this Agreement.
(l) Recruitment of Employees. Client agrees not to hire Fiserv's employees
during the term of this Agreement and for a period of 6 months after any
termination or expiration thereof, except with Fiserv's prior written consent.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date indicated below.
For Client: For Fiserv:
MERIT HOLDING CORPORATION FISERV SOLUTIONS, INC.
By: /s/ J. Xxxxxxx Xxxxxxx By:
---------------------------------- -------------------------------
Name: J. Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
-------------------------------- -----------------------------
Title: Chief Executive Officer Title: President Fiserv Atlanta
------------------------------- ----------------------------
Date: December 17, 1998 Date:
-------------------------------- -----------------------------
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Merit Holding Corporation
Form 10Q
March 31, 1999
Exhibit 10.4 Agreement between Fiserv, Inc. and Merit Holding Corporation
Exhibit Index:
ITEM NUMBER NAME
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Exhibit A Account Processing Services
Exhibit A-1 Account Processing Services
Exhibit A-2 and Special Addendum Account Processing Services
Exhibit A-3 Hours of Operation
Exhibit A-4 Miscellaneous Services
Exhibit A-5 Ancillary Modules
Exhibit H Disaster Recovery Agreement
