AGREEMENT between Fiserv Solutions, Inc. 255 Fiserv Drive Brookfield, WI 53045-5815 and Franklin Bank,SSB 9800 Richmond Ste.680 Houston, Texas 77042 Date: 7/1/2006
Exhibit 10.32
Agreement Number: ________________
between
Fiserv Solutions, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
and
Franklin Bank,SSB
0000 Xxxxxxxx Xxx.000
Xxxxxxx, Xxxxx 00000
0000 Xxxxxxxx Xxx.000
Xxxxxxx, Xxxxx 00000
Date: 7/1/2006
AGREEMENT dated as of July 1, 2006 (“Agreement”) between Fiserv
Solutions, Inc., a Wisconsin corporation (“Fiserv”), and Franklin Bank,SSB, a State
Savings Bank (“Client”).
Fiserv and Client hereby agree as follows:
1. Term. The initial term of this Agreement shall end 3 years following the date
Fiserv Services (as defined below) are first used by Client 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 additional term(s) of 3 years.
This Agreement shall be effective on the earlier of the date it is signed by the parties and the
day services are first provided to Client by Fiserv (“Effective Date”). Client will have a one time
option to reevaluate all services after 24 months. At that time client may elect to change, or
eliminate any sevices that are currently being provided. Client will notify Fiserv within 30 days
following the 24th month of the term of this agreement, of any changes they wish to make
in their existing service offering. Client may implement Fiserv’s branch capture offering at any
time during the term of this agreement.
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 B — Item Processing Services
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) Implementation Services. Fiserv will provide services (i) to convert Client’s
existing applicable data and/or information to the Fiserv Services; and/or (ii) to implement the
Fiserv Services. These activities are referred to as “Implementation Services”. Client agrees to
cooperate with Fiserv in connection with Fiserv’s provision of Implementation Services and to
provide all necessary information and assistance to facilitate the conversion and/or
implementation. Client is responsible for all out-of-pocket expenses associated with
Implementation Services. Fiserv will provide Implementation 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) | out-of-pocket and other additional charges for the month pursuant to Section 3(b) below; and | ||
| (iii) | Taxes (as defined below) thereon (collectively, “Fees”). |
Fiserv shall timely reconcile 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 an invoice for any
additional fees or other charges owed. Fiserv may change the amount of Fees billed to reflect
appropriate changes in actual use of Fiserv Services. 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
as set forth in the Exhibits. Such out-of-pocket expenses may be changed from time to time upon
notification of a fee change from a vendor/provider. The 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 clearinghouse, regulatory agency, or Federal
Reserve Bank. Client agrees to pay Fiserv’s then-current deconversion charges in connection with
Client’s deconversion from the Fiserv System (as defined in Section 4(b) below).
(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 Fiserv’s net income.
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(d) Payment Terms. Fees are due and payable monthly upon receipt of invoice. Client
shall pay Fiserv through the Automated Clearing House. 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
Fees on invoices submitted by Fiserv for Fiserv Services.
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,
reporting, or service costs 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 from Client’s use of non-compatible equipment or
software.
(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 Implementation Services and shall cooperate with Fiserv
personnel in their performance of Services.
(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 or discrepancies.
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 are
Year 2000 compliant and otherwise capable of passing and/or accepting data 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)
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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. Fiserv specifically agrees that it will not use any non-public
personal information about Client’s customers in any manner prohibited by Title V of the
Xxxxx-Xxxxx-Xxxxxx Act. 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 only use Information in accordance
with the purpose of this Agreement. 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
thereto, including, but not limited to, alterations, decompiling, disassembling, modifications, and
reverse engineering thereof.
(e) Information Security. Fiserv shall implement and maintain appropriate measures
designed to meet the objectives of the guidelines establishing information security standards as
adopted by any federal regulatory agencies having jurisdiction over Client’s affairs. These
measures will include taking appropriate actions to address incidents of unauthorized access to
Client’s sensitive customer information, including notification to Client as soon as possible of
any such incident.
(f) Confidentiality of this Agreement. Fiserv and Client agree to keep confidential
the prices, terms and conditions of this Agreement, without disclosure to third parties.
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 Exhibits; (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) the Fiserv System will
comply in all material respects with all applicable Federal regulations governing Services; and
(E) the Fiserv System is Year 2000 compliant. 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
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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; and
(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. 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.
THE WARRANTIES STATED HEREIN 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
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: (i) no contractual
obligations exist that would prevent Client from entering into this Agreement; (ii) it has complied
with all applicable regulatory requirements; and (iii) it 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 (iv)
the use by Client of the Fiserv System in a manner other than that provided in this Agreement; and
(v) 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
(v) 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 CLAIMS OR
OBLIGATIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO FISERV
FOR THE FISERV SERVICE RESULTING IN SUCH LIABILITY IN THE 2 MONTH PERIOD PRECEDING THE DATE THE
CLAIM ACCRUED. FISERV’S AGGREGATE LIABILITY FOR A DEFAULT RELATING TO THIRD PARTY 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. 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.
(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’s 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.
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(e) No 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; no performance standards shall be applicable for the duration of a
Disaster. Client maintains responsibility for adopting a disaster recovery plan relating to
disasters affecting Client’s facilities and for securing business interruption insurance or other
insurance necessary for Client’s protection.
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 90 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 15 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 as set forth in Section 11(b);
(ii) breaches this Agreement in any material respect or otherwise defaults in any material
respect in the performance of any of its obligations and fails to cure such breach as set forth
in Section 11(a); 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 remaining unused 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.
(e) Convenience; Early Termination. Client may terminate this Agreement during the
initial term, by paying a termination fee based on the remaining unused term of this Agreement, the
amount to be determined by multiplying the average of Client’s monthly invoices for each Fiserv
Service received by Client during the three (3) month period preceding the effective date of
termination (i) by 100% times the remaining months of the term if terminated in year 1, (ii) by
80% times the remaining months of the term if terminated in year 2, and (iii) by 40% times the
remaining months of the term if terminated in year 3, plus any applicable third party costs
existing on Fiserv’s books on the date of termination. Client may terminate this Agreement during
any renewal term by paying a termination fee based on the remaining unused term of any renewal term
the amount to be determined by multiplying the average of Client’s monthly invoices for each Fiserv
Services received by 30% times the remaining months. 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 to accept as liquidated damages (and not as a penalty) such
amount for any such Client termination. If during the term of this agreement the Client acquires
another institution that has a contract with Fiserv for item processing services, Fiserv will
waive any termination fees that the acquired Client may have stated in their existing agreement, as
long as the item processing services for the acquired institution remains with Fiserv. This client
my be incorporated into Client’s existing process, or remain processed as a stand alone client.
(f) 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 a Fiserv standard
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
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termination fee pursuant to subsection (d) or (e) 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 30 days from the final use of Client Files for
processing.
(g) Miscellaneous. Client understands and agrees that Client is responsible for the
deinstallation and return shipping of any Fiserv-owned equipment located on Client’s premises.
12. Dispute Resolution. (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 3 arbitrators, 1
chosen by each party, and the third chosen by those 2 arbitrators. The arbitrators will be
selected from a panel of persons having experience with and knowledge of information technology and
at least 1 of the arbitrators selected will be an attorney. Discovery shall not be permitted. 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 and the Federal Rules of Evidence. The arbitrators shall apply
the substantive law of the State of New York, 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 Milwaukee, Wisconsin, the
proceedings to resolve the second such dispute shall be held in ___, ___, and the
proceedings to resolve any subsequent disputes shall alternate between Milwaukee, Wisconsin and
___, ___.
13. Insurance. Fiserv carries the following types of insurance policies:
(i) Commercial General Liability in an amount of $1 million per occurrence for claims arising
out of bodily injury and property damage;
(ii) Commercial Crime covering employee dishonesty in an amount of $5 million;
(iii) All-risk property coverage including Extra Expense and Business Income coverage; and
(iv) Workers Compensation as mandated or allowed by the laws of the state in which Services are
being performed, including $1 million 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, as may be required by law or
regulation, Fiserv provides for periodic independent audits of its operations. Fiserv shall
provide Client with a copy of the independent 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.
(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.
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(d) Governing Law. This Agreement will be governed by the substantive laws of the
State of New York, without reference to provisions relating to conflict of laws. The United
Nations Convention on 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. Upon request, Fiserv shall provide 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.
(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. Client agrees not to enter into an agreement with
any other entity to provide these services (or similar services) during the term of this Agreement
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.
(m) Publicity. Client and Fiserv shall have the right to make general references
about each other publicly and the type of services being provided hereunder to third parties, such
as auditors, regulators, financial analysts, and prospective customers and clients. The parties
shall mutually agree on a press release relating to the execution of this Agreement. In
conjunction with this, the party initiating such release shall give the other party a reasonable
opportunity to review and comment on the content thereof prior to its release.
(n) Independent Contractors. Client and Fiserv expressly agree they are acting as
independent contractors and under no circumstances shall any of the employees of one party be
deemed the employees of the other for any purpose. This Agreement shall not be construed as
authority for either party to act for the other party in any agency or other capacity, or to make
commitments of any kind for the account of or on behalf of the other except as expressly authorized
herein.
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: | |||||||
| Franklin Bank, S.S.B. | Fiserv Solutions, Inc. | |||||||
| [Name of Client] | ||||||||
By:
|
By: | |||||||
Name:
|
Name: | |||||||
Title:
|
Title: | |||||||
Date:
|
10/16/2006 | Date: | 10/18/2006 | |||||
| Master 2005 | 8 | |
