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: ________________
AGREEMENT
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:
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.
(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.
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(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.
(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.
(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.
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(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.
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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.
(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.
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For Client: | For Fiserv: | |||||||
Franklin Bank, S.S.B. | Fiserv Solutions, Inc. | |||||||
[Name of Client] | ||||||||
By:
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By: | |||||||
Name:
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Name: | |||||||
Title:
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Title: | |||||||
Date:
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10/16/2006 | Date: | 10/18/2006 |
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