EXHIBIT 10.8
WIRE TRANSFER SERVICE AGREEMENT
THIS WIRE TRANSFER SERVICE AGREEMENT (this "Agreement") is made and entered into
as of this 26th day of June, 2002 by and between BRIDGE BANK OF SILICON VALLEY,
N.A. ("Client"), and BServ, Inc., a Nevada corporation ("BankServ").
RECITALS
A. Client is a [commercial bank], and accordingly, is permitted to initiate
and receive wire transfer transactions using the Federal Reserve Bank wire
transfer system.
B. BankServ has developed and licenses a software, communications and
electronic data base system (the "BankServ System") for initiating and receiving
wire transfer transactions ("Wire Transfer Transactions") as more particularly
described in Exhibit A (the "Services").
C. Client and BankServ desire that Client utilize BankServ and the BankServ
System to process all of Client's Wire Transfer Transactions.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. APPOINTMENT OF BANKSERV. Client hereby appoints BankServ to utilize the
BankServ System as Client's exclusive provider of wire transfer origination and
wire transfer receiving services; provided, however, that Client shall retain
its own FedLine terminal as a backup system. Client shall be solely responsible
for BankServ's charges for the Services. The specifications of the Services
shall be as set forth on Exhibit A.
2. CHARGES. Client shall pay BankServ the prices set forth on Exhibit B per
transaction multiplied by the quantity of such services performed by BankServ as
recorded by BankServ's computer system which shall be presumed to be correct
absent demonstrable error. Client shall pay monthly all amounts payable by
automatic electronic transfer to BankServ initiated by Client on or before the
thirtieth (30th) day of each calendar month for all services performed by
BankServ during the immediately preceding calendar month, and thereafter default
interest shall accrue at the rate of 1-1/2% per month, compounded monthly. Bills
shall be submitted by mail after the end of each calendar month, detailing
volumes and corresponding transaction pricing. Client shall also pay BankServ an
amount equal to any taxes paid or payable by BankServ (other than taxes based
upon BankServ's net income) however designated, levied or based on the fees,
services, products or technical information provided by BankServ pursuant to
this Agreement. At the end of the Initial Term as defined below, and any Renewal
Term(s), BankServ may revise its per transaction charges by notifying the Client
in writing at least one hundred twenty (120) days prior to the change taking
effect. BankServ may increase its per transaction charges based on any direct
pass through cost increases it incurs in providing such services to Client;
provided however, that any such increase shall permit Client to terminate this
Agreement upon sixty (60) days notice if made within sixty (60) days after such
increase. Additionally, if a price revision is made in addition to pass through
costs and results in an increase to the per item cost, such increase shall occur
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only one time annually and the percentage increase shall not exceed the Consumer
Price Index for the twelve (12) month period immediately prior to the
price/charge revision.
3. TERM AND TERMINATION. This Agreement shall have an initial term
("Initial Term") of five (5) years from the date that the BankServ System is
operational with respect to Client ("Commencement Date"), which term shall be
automatically extended for ten (10) successive one (1) year terms (each a
"Renewal Term"); provided, however, that either party may terminate this
Agreement at any time after the Initial Term without cause and without breach of
this Agreement upon one hundred twenty (120) days prior written notice and
further provided that either party may terminate this Agreement upon thirty (30)
business days' notice at any time if the other party is in breach of this
Agreement and, provided such breach is susceptible to cure within thirty (30)
business days, has not cured such breach within thirty (30) business days after
written notice with respect thereto specifying such breach is sent to the
breaching party. [REMOVED AS BSERV IS REQUIRED TO COMPLY WITH FRB REGS AND ANY
OTHER BREACH WOULD FALL UNDER BREACH SCENARIO SPECIFIED ABOVE]. Notwithstanding
anything to the contrary contained herein, BankServ may terminate this Agreement
on thirty (30) business days' notice to Client if Client is delinquent in making
any payment due hereunder and has not cured such payment default within five (5)
business days after BankServ's written notice with respect thereto. The Client
may also terminate this agreement upon thirty (30) days notice without cause,
provided that if such termination occurs prior to the end of the Initial Term,
Client shall pay to BankServ an amount equal to the Termination Payment
Structure set forth in Exhibit B.
4. CONTINGENT UPON REGULATORY APPROVAL. The parties hereto acknowledge and
agree that this Agreement is contingent upon any required governmental
regulatory approval. Each party agrees to make reasonable efforts to secure all
necessary governmental and regulatory approvals. In the event all necessary
regulatory approvals are not obtained, this Agreement shall terminate and be of
no further force or effect. If at any time during the Initial Term or any
Renewal Term, governmental and regulatory authorities withdraw their approval,
and their approval cannot be regained in a reasonable time, then this Agreement
shall terminate and be of no further force and effect.
5. HARDWARE AND COMMUNICATIONS SERVICES. Client shall be solely responsible
for (I) its own data processing and transmission equipment (see Requirements in
Exhibit 0) and (ii) establishing and maintaining its data communication lines
and equipment necessary to transport data between Client's equipment and
BankServ's equipment.
6. IDENTIFICATION NUMBERS AND PASSWORDS. Access to BankServ from Client's
remote terminals shall be available only through the use of one or more
identification numbers and passwords assigned and validated by BankServ prior to
the Commencement Date and Client's use of the Services. Once such identification
number(s) and password(s) have been assigned and validated by BankServ, the use
and confidentiality of such numbers and passwords by Client shall be the sole
responsibility of Client in additional to the mutually agreed upon security
procedures of each party as set forth in Section 7 below. BankServ may refuse to
process any data that in BankServ's opinion is not of a quality suitable for
processing or does not comply with BankServ's applicable standards and
procedures. BankServ shall use its best efforts to contact Client when data
input by Client does not comply with input requirements of the BankServ system,
although BankServ shall expressly not be responsible therefore.
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7. SECURITY PROCEDURES. Client shall properly use such security procedures
that are reasonably sufficient to ensure that all transmissions of data to the
BankServ System are authorized and to protect its business records and data from
any improper access. BankServ does not assume any responsibility to discover any
possible breach of Client's security; provided, however, that if BankServ
discovers any such breach, it shall promptly notify Client. Client shall
immediately notify BankServ if it discovers any breach of security of the
BankServ System. Client shall indemnify and hold BankServ harmless against any
liability, loss, damage, cost or expense (including reasonable attorneys' fees)
resulting from (i) Client's or any of Client's employees, Client's agents or
representatives' breach of security for the BankServ System and (ii) any and all
of such parties' unauthorized uses of the BankServ System. BankServ shall be
responsible for any liability, loss or damage resulting from intentional
breaches of security by BankServ and its employees.
8. CLIENT OBLIGATIONS. Client represents, warrants and covenants to
BankServ that it shall:
(a) FRAUD PREVENTION. Take commercially reasonable measures to prevent
fraud by Client, its employees, agents and customers;
(b) DATA VERIFICATION. Be responsible for inputting all data and verifying
the accuracy of all data so entered;
(c) DATA FORMAT. Provide at a reasonable time and in such format as may be
reasonably requested by BankServ all other data or information
reasonably required by BankServ to perform the Services hereunder;
(d) CONFIDENTIALITY. Preserve the confidentiality of any identification
numbers and passwords assigned and validated by BankServ;
(e) NOTIFICATION OF SECURITY BREACH. Notify BankServ if it discovers a
breach of BankServ's security;
(f) COMPLIANCE WITH LAWS AND REGULATIONS. Comply with applicable laws,
regulations and rules, including without limitation, the rules of the
Federal Reserve Bank; and
(g) COMPLY WITH BANKSERV RULES. Comply with BankServ's rules and
regulations for uses of the services, as BankServ may establish from
time to time.
9. EXCLUSIVITY. BankServ's pricing is based upon Client's exclusive use of
BankServ for all Services; accordingly, Client agrees to use and hereby appoints
BankServ as the exclusive provider of Services to Client during the Initial Term
and any Renewal Term hereof.
10. CUSTOMER SERVICE. BankServ shall during the hours set forth on Exhibit
A maintain and staff a Continental United States toll-free telephone line from
which BankServ shall use its best efforts to answer the questions of Client
employees, agents and representatives who intend to utilize the Services.
11. TITLE TO PROPERTY, KNOW-HOW AND INTELLECTUAL PROPERTY; NONDISCLOSURE OF
TRADE SECRETS; CONFIDENTIALITY.
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a. Title. All systems, programs, operating instructions, documentation
and know how utilized in or by the BankServ System shall be and remain
the exclusive proprietary property of BankServ. All information,
customer data, and other proprietary information of Client shall
remain the exclusive proprietary property of Xxxxxx
x. Each party will keep strictly confidential all information regarding
the other party's business, customers, affairs, technology, systems,
programs, operating instructions, documentation, and know how utilized
in or by the BankServ System learned in connection with this Agreement
or the transactions contemplated by it (the TMConfidential
Information"). Each party shall use the other's Confidential
Information only in the performance of its obligations under this
Agreement, shall disclose such Confidential Information within its
organization only to those employees who need to know it to perform
its obligations and shall not disclose such Confidential Information
to any third party. Each party shall take all measures (by agreement,
instruction or otherwise) reasonably necessary to protect the
confidentiality of such Confidential Information and limit use of and
access to such Confidential Information to conform to the express
terms of this Agreement, including, without limitation, each party
shall take the same care in handling the Confidential Information from
the other party as it would in the handling of its own data, but in no
even shall such party use less than a reasonable degree of care in
instructing its employees regarding its obligations under this
Agreement. To the extent that BankServ has access to, and Licensee may
provide BankServ with information and/or documentation about
Licensee's customers, (`Customer Information"), BankServ agrees that
all such Customer Information shall be held in strict confidence and
disclosed only to those employees, agents or service providers whose
duties reasonably require access to such information. BankServ may use
such Customer Information only in connection with its performance
under the Agreement, or as expressly permitted in the Agreement. Upon
expiration or termination of this Agreement, each party shall, at its
own expense, immediately return to the other party or destroy if such
party so requests, all confidential information of the other in
written or recorded form, and shall certify such return or destruction
in a writing signed by one of its officers. If BankServ or any of its
employees or agents shall attempt to use or dispose of any such
Customer Information in a manner other than as expressly permitted
hereunder, Client shall have the right, in addition to such other
remedies to injunctive relief enjoining such use, disposition,
attempted use or attempted disposition, it being acknowledged that
legal remedies are inadequate to protect Client. Notwithstanding the
foregoing, no obligation of confidentiality shall attached to any
information which is (a) generally known to the public, (b)
independently developed by either party without reliance on the trade
secrets and/or confidential information provided by the other party or
(C) independently acquired from sources who have no obligation of
confidentiality.
c. If either of the parties are legally compelled (whether deposition,
interrogatory, request for documents, subpoena, civil investigation,
demand or similar process) to disclose any of the Confidential
Information (including the fact that discussions or negotiations are
taking place with respect to the Transaction) the compelled party
shall immediately notify the other party in writing of such
requirements so that the noncompelled party may seek a protective
order or other appropriate remedy and/or waive compliance with the
provisions hereof. The compelled party will use all reasonable efforts
at the non-compelled party's expense, to obtain or assist the
non-compelled party in obtaining any such protective order. Failing
the entry of a protective order or the
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receipt of a waiver hereunder, the compelled party may disclose,
without liability hereunder, that portion (and only that portion) of
the Confidential Information that the compelled party has been advised
by opinion of counsel reasonably acceptable to the other party that it
is legally compelled to disclose; provided that the compelled party
agrees to use all reasonable efforts to obtain assurance that
confidential treatment will be accorded such Confidential Information
by the person to whom it was disclosed.
12. WARRANTY; LIMITATION ON LIABILITY. BankServ shall maintain a back-up
server to its primary server to reduce the risk of delays as a result of
equipment malfunction. BankServ agrees to employ due care and attention in the
preparation and maintenance of its programs and in performing the Services, but
BankServ is a service bureau, not an insurer. Accordingly, Client acknowledges
that data processing entails the risk of human and machine errors, omissions,
delays and losses, including inadvertent loss or misstatement of data which may
give rise to loss or damage. Accordingly, Client agrees that except as otherwise
specified in Exhibit A attached hereto_[[ls there anything on Exhibit A about
this is OUR REFERENCE TO EX. A RELATES TO THE FACT THAT WE WARRANT OUR SOFTWARE
TO PROVIDE THE SERVICES IN THE MANNER DESCRIBED THERE. Ex A should state that
BankServ is required to correct errors and omissions in processing transfers]],
BANKSERV SHALL NOT BE LIABLE FOR ANY ERRORS, OMISSIONS, DELAYS OR LOSSES UNLESS
CAUSED BY BANKSERV'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO EVENT SHALL
BANKSERV BE LIABLE FOR DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES. IN NO
EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF BANKSERVTO THE CLIENT FOR ANY AND
ALL CLAIMS, LOSSES OR DAMAGES ARISING UNDER THIS AGREEMENT OR SERVICES PERFORMED
HEREUNDER FOR ANY CLIENT CUSTOMER EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO
BANKSERV DURING THE PRECEDING MONTH, EVEN IF BANKSERV HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH POTENTIAL CLAIM, LOSS OR DAMAGE. THE foregoing limitation of
liability and exclusion of certain damages shall apply regardless of the success
or effectiveness of other remedies. Notwithstanding Section 13, below, BankServ
shall not be responsible for delays in receipt of Client information, or for
delays in processing of Client information because of causes beyond its
reasonable control, including, without limitation, equipment malfunction,
limitations on the availability of telephone or other transmission facilities,
failures of communications equipment, or Client's failure to properly format and
transmit information. BankServ shall also not be responsible for errors in data
entry or other services, programs, hardware, data files, or output provided to,
or maintained for, Client resulting from errors in Client's input data or from
Client's failure to comply with the terms and conditions of this Agreement. in
the event that the Licensed Software as described in Section 15, fails to
perform pursuant to specifications, as Client's sole and exclusive remedy,
BankServ will, at its option, either (i) provide software support services
necessary to correct material errors reported to BankServ in writing by Client
and which BankServ is able to reproduce, or (ii) terminate this Service
Agreement and the sublicense granted hereunder (unless Client waives its
remedies with respect to such defect). THE FOREGOING WARRANTY OF THE LICENSED
SOFTWARE IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED.
BANKSERV SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES RELATING TO QUALITY, PERFORMANCE,
INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE RELATED TO THE
LICENSED SOFTWARE AND DOCUMENTATION.
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13. FAILURE TO MEET SPECIFICATION. In the event that for any particular
calendar date BankServ does not meet or exceed the specification for timeliness
of Wire Transfer Transactions set forth in Exhibit A, which are under its
control-as described:-in .Section 16(k), BankServ shall waive all of its fees
otherwise payable by Client to BankServ for the Services performed by BankServ
during such calendar day,
14. INDEMNIFICATION. Client shall defend and indemnify BankServ and hold ii
harmless against any and all liability, loss, damages, costs or expenses
(including court costs and reasonable attorneys fees) arising as a result of
Client's breach of its warranties, representations, covenants or obligations
under this Agreement or the activities of any of Client's customers in
connection with the receipt of the Services, including without limitation,
unauthorized disclosure of BankServ Information, unauthorized use or disclosure
by any person having authorized access to the information and data related to
the Licensed Software or Documentation as described in Section 15 below, any
fraud committed by Client or its customers, employees, agents or representatives
or any credit failure of Client or any act of third parties under the control or
direction of BankServ and any failure of Client to obtain a requested
authorization executed by Client's customer authorizing a Wire Transfer
Transaction; PROVIDED, HOWEVER, BankServ shall indemnify Client and shall hold
it harmless from any loss or damage arising as a result of BankServ's gross
negligence or willful misconduct in connection herewith. Accordingly, Client
agrees that (i) in the event of breach or attempted or threatened breach of the
Software License grant by Client or a sublicensee, BankServ may terminate this
Agreement immediately, and (ii) in the event a court of competent jurisdiction
determines that Client and/or sublicensee has breached or attempted or
threatened to breach any of the terms of this Agreement or the Sublicense
Agreement attached hereto as EXHIBIT C, Licensee will consent to the entry of an
injunction against it without the need for BankServ to make a showing of
irreparable harm. This obligation imposed on the Client and BankServ and the
rights conferred upon BankServ and the Client by this section shall not be
extinguished upon termination of this Agreement or the license hereby granted,
but shall be and remain continuing obligations of Client.
15. SOFTWARE LICENSE. BankServ grants to Client as Licensee, during the
term of this Agreement, a nonexclusive, royalty-free, non-transferable license
to use all portions of BankServ's proprietary computer software (the "Licensed
Software") and user documentation supplied by BankServ including any subsequent
versions thereof (the "Documentation") on such computer central processing units
owned or controlled by Licensee for Licensee's own internal operations, solely
in conjunction with the services provided by BankServ. Licensee may copy the
Licensed Software solely for use on the computer central processing units owned
and controlled by Licensee and for backup purposes. All copies shall remain the
exclusive property of BankServ and Licensee shall have no right, title or
interest therein except as expressly set forth in this Agreement. Duplication of
Documentation is prohibited. Licensee is prohibited from using the Licensed
Software in a service bureau, timesharing or outsourcing capacity. In addition,
BankServ grants to Licensee, during the term of this Agreement, a non-exclusive,
nontransferable license to copy and sublicense the terminal components of the
Licensed Software ("Terminal Software") to its merchant customers in connection
with Licensee's facilitation of BankServ providing wire transfer services for
such merchant customers. Licensee may sublicense the Terminal Software only upon
Licensee obtaining an original, fully executed Sublicense Agreement in the form
of Exhibit C as may be modified from time to time (or in substantially similar
form, subject to BankServ's prior written approval) and delivering a copy of
same to BankServ. Upon the expiration of such sublicense, Licensee shall cause
all
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sublicensees of such software to immediately cease all use and return to
Licensee any and all copies of such software and documentation thereto in any
form whatsoever in any merchant customer's possession or control ( upon which
Licensee shall forthwith return same to BankServ).
(a) INTELLECTUAL PROPERTY RIGHTS OF SOFTWARE AND DOCUMENTATION. CLIENT as
Licensee acknowledges that the Licensed Software and Documentation are
works on which BankServ and/or BankServ's licensors hold the sole and
exclusive copyright. Licensee shall maintain BankServ's copyright
notice on the Licensed Software and Documentation, and shall reproduce
such notice on all copies of the Licensed Software, and upon all
tangible media, such as diskettes, upon which copies are stored.
Further, Licensee acknowledges that the Licensed Software and
Documentation licensed hereunder contain valuable trade secrets and
confidential information that are the unrestricted proprietary rights
of BankServ. Licensee agrees that it will not use this information in
any way not allowed by this Agreement, that it will not disclose this
information to anyone other than its own employees who require access,
that it will protect and maintain the confidentiality of this
information, and that it will take all commercially reasonable
precautions (no less stringent than those the Client uses to protect
its own proprietary information) to prevent any unauthorized use or
disclosure of this information. Licensee further agrees that it will
not decompile, disassemble, or in any manner attempt to reverse
engineer the Licensed Software or direct or authorize others to do so.
16. MISC0ILANN.JC PROVISION.
(a) ENTIRE AGREEMENT. This Agreement and any Exhibits hereto, constitute
the final and entire understanding and agreement between the parties
with respect to the subject matter hereof and shall supersede all
prior negotiations, understandings, representations and agreements
between the parties relating to the subject matter hereof. No party
shall be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as
specifically set forth herein. The parties agree that no extrinsic
evidence whatsoever may be introduced in any judicial, administrative,
arbitration or other proceeding involving this Agreement. Nothing in
this Agreement is intended to confer upon any person, other than the
parties hereto and their respective successors, permitted assigns,
heirs, legatees, executors and administrators, any rights, remedies,
obligations or liabilities under or by reason of this Agreement,
except as expressly provided herein.
(b) COMPLIANCE WITH LAWS AND REGULATIONS. THE parties hereto agree to
comply with all applicable laws and regulations with respect to the
Services.
(c) FURTHER ASSURANCES. Subject to the terms and conditions expressly set
forth herein, the parties hereto shall use their best efforts to do
and perform or cause to be done and performed all further acts and
shall execute and deliver all other agreements, certificates,
instruments or documents as any other party may reasonably request in
order to promote the intent and purpose of this Agreement and the
consummation of the transactions contemplated hereby. No party shall
voluntarily undertake any course of action inconsistent with the
performance or satisfaction of the requirements applicable to it set
forth in this Agreement, and each party shall promptly do all such
acts and take all such measures as may be appropriate to enable it to
perform as early as practicable the obligations herein required to be
performed by it.
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(d) ESTABLISHING RULES. Client hereby acknowledges that BankServ may from
to time establish reasonable rules, regulations and operational
guidelines with respect to use of the Service by BankServ's customers
and that such rules, regulations and guidelines shall be binding upon
Client fifteen (15) days after delivery thereof to Client.
(e) AUTHORITY TO EXECUTE. The parties executing this Agreement hereby
warrant and represent that they are properly authorized to execute
this Agreement and bind the parties on behalf of whom they execute
this Agreement to all of the terms, covenants, and conditions of this
Agreement as they relate to the respective parties hereto.
(f) AMENDMENTS. No modification, amendment or waiver of any provision of
this Agreement shall be effective unless approved in writing by all
parties.
(g) SEVERABILITY. If one or more provisions of this Agreement are held to
be invalid, illegal or unenforceable under applicable law, portions of
such provisions, or such provisions in their entirety, to the extent
necessary, shall be severed from this Agreement, and the balance of
this Agreement shall be enforceable in accordance with its terms
unless by such severance the respective rights of the parties are
materially altered, in which case the party whose rights are so
altered shall have the right (exercisable within thirty (30) days
after the determination of unenforceability) to rescind this
Agreement.
(h) GENERAL CONSTRUCTION. The underlined headings contained in this
Agreement are for convenience only and shall not be deemed to explain,
modify or aid in the interpretation or construction of the provisions
of this Agreement. Each party hereto, and counsel for each party
hereto, has reviewed and revised this Agreement, and the normal rule
of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation
or construction of this Agreement. As used in this Agreement,
"includes" and "including" are not limiting; "or" is not exclusive.
(i) DELAYS OR OMISSIONS; CUMULATIVE RIGHTS. NO delay or omission to
exercise any right, power or remedy accruing upon any breach, default
or noncompliance under this Agreement shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any such
breach, default or noncompliance, or any acquiescence thereof or of
any similar breach, default or noncompliance thereafter occurring. It
is further agreed that any waiver, permit, consent, or approval of any
kind or character of any breach, default or noncompliance under this
Agreement, or any waiver of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the
extent specifically set forth in such writing. All rights and
remedies, either under this Agreement, by law, in equity or otherwise,
shall be cumulative and not alternative, and the exercise of any right
or remedy shall be without prejudice to the enforcement of any other
right or remedy.
(j) TIME. Time is of the essence with respect to this Agreement.
(k) FAILURE OR DELAY IN PERFORMANCE. Notwithstanding anything to the
contrary herein (including Section 14, above), no party shall be
liable for or shall waive its fees because of failure or delay in
performing its obligations hereunder if such failure or delay is due
to circumstances beyond the party's reasonable control, including
without limitation, acts of any governmental body, war, insurrection,
sabotage, embargo, fire, earthquake, flood, strike or other labor
disturbance, interruption of or delay in transportation, or inability
to obtain raw materials, supplies, or power used in or equipment
needed for the performance of the Services;
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the failure of timely or adequate performance of the Federal Reserve
Bank, the Federal Reserve wire transfer system or other third parties
upon whom BankServ shall rely in providing the Services; provided,
however, that lack of credit, funds or financing to a party hereto
shall not be considered a matter beyond the reasonable control of the
party. Each party (a) shall promptly notify the other in writing of
any such delay or failure in performance, the expected duration
thereof, and its anticipated effect on the party expected to perform,
and (b) shall use its best efforts to remedy such delay, except that
no party shall be under any obligation to settle a labor dispute.
Notwithstanding the above, the other party shall have the right to
terminate this Agreement if the excused failure or delay continues for
ninety (90) days from the date that performance was first delayed.
(l) SUCCESSORS AND ASSIGNS. Any party upon the written consent of the
other party, which consent shall not be unreasonably withheld, may
sell, assign, subcontract, delegate or transfer this Agreement in
whole or in part with all or part of its right, title, and interest
therein to any person, corporation, or entity, at any time during the
term of this Agreement, and any such assignee shall acquire all of the
rights and shall assume all of the obligations of the assigning party
under this Agreement. Any purported assignment, transfer, or
delegation in violation of this Section shall be null and void. The
merger of any party with or into any other corporation, the sale by
any party of all or substantially all of its property or assets, a
purchase by any party of a controlling interest in capital stock (or
any other action) or a change in control of a party shall not
constitute an assignment of rights in violation of this Section.
Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, legatees, executors and administrators of the parties
hereto.
(m) STATUS OF THE PARTIES. Nothing herein shall be construed to create a
partnership, joint venture, franchise, employer-employee relationship.
No party shall have the authority to commit or bind any other party
without such party's prior written consent.
(n) NOTICES. Except as expressly provided herein, all notices and other
communications required or permitted hereunder shall be given in
writing and shall be given in person, or by telecopier, or by
overnight courier, and shall be deemed to have been delivered upon
receipted personal delivery to the respective addresses set forth
below:
If to BankServ: BServ, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, President & CEO
FAX: 000.000.0000
IF to CLIENT: BRIDGE BANK OF SILICON VALLEY
2120 El Camino Real
Santa Xxxxx
FAX: 000-000-0000
Any party may change its address for notice by providing notice to all
other parties as provided herein.
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(o) PRONOUNS. All pronouns used in this Agreement shall be deemed to
include masculine, feminine and neuter forms, and the plural as well
as singular forms, as the context requires.
(p) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument.
(q) GOVERNING LAW/VENUE. This Agreement shall be governed in all respects
by the laws of the State of California as it applies to contracts,
between California residents, which are made and to be performed in
California. The exclusive venue for any action commenced by BankServ
pursuant to or arising out of this Agreement shall be limited to the
state or federal courts located in the State of Client's principal
place of business, and BankServ and Client hereby submit to such
jurisdiction. The exclusive venue for any action commenced by Client
pursuant to or arising out of this Agreement shall be limited to the
state or federal courts located in the State of California, and
BankServ and Client hereby submit to such jurisdiction.
(r) ATTORNEYS' FEES. If any action (whether legal or equitable and whether
litigation or arbitration or some other proceeding), including an
action for declaratory relief, is brought under this Agreement, the
prevailing party (as shall be determined by the court or other
adjudicator) shall be entitled to recover its reasonable attorneys'
fees and costs of suit from the other party in addition to such other
relief as may be granted. The prevailing party shall be determined
based upon an assessment of which party's major arguments made or
positions taken in the proceedings fairly could be said to have
prevailed over the other party's major arguments or positions on major
disputed issues in the decision. Each party to this Agreement was
represented by an attorney in the negotiation, drafting and execution
of this Agreement.
(s) PUBLICITY. Either party hereto may publicize the existence of this
Agreement in general but any and all information related to the
specific terms and conditions (including but not limited to pricing)
of this Agreement shall remain confidential.
(t) INSPECTION AND AUDIT RIGHTS. SUBJECT TO SECTION 11, Client hereby
grants to BankServ(R) the right of access, from time to time, to
Client's computer system on which the licensed software has been
installed (online or on-premises) solely for the purposes of auditing
the number of transactions that have been processed by the licensed
software and to verify the number of computers that use the licensed
software.
(u) ACCEPTANCE. This Agreement shall become the binding obligation of
BankServ only if executed by BankServ whose execution shall depend on
BankServ's acceptance of Client as an authorized user of the Services.
Such authorization shall be in BankServ's sole discretion and shall
depend in part on BankServ's verification of Client's financial
wherewithal and Client supplying BankServ such other information as
BankServ may require.
17 SOURCE CODE ESCROW. BankServ(R) agrees to maintain the Client's current
copy of its source code of the Software the source code for the Software,
including all relevant commentary, explanations and other documentation, as well
as instructions to compile the source code, plus all revisions to the Software
source code encompassing all corrections, changes, modifications and
enhancements made to the Software providing the Services as
10
described herein in escrow with Data Securities International, Inc., 0000 Xxx
Xxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 (the "Escrow Holder"). All costs of
escrow shall be paid by Client including any costs for additional beneficiaries
as mutually agreed upon. A copy of the source code in escrow shall be released
to Client upon Client's request within ten (10) days only upon BankServ's
failure to provide the Services and the occurrence of any one or more of the
following events: (i) BankServ(R)or any successor to BankServ(R) ceases doing
business; and (ii) at any time during any proceedings under any provision of the
Federal Bankruptcy Act in which BankServ(R)or its successors or representatives
rejects or terminates this Agreement. In the event that the source code is
delivered to Client as provided above, BankServ(R) hereby grants to Client a
non-exclusive, non-transferable license to modify or have others modify the
source code of the Software in connection with Client's use of the Services,
subject to the terms and conditions of this Agreement. Notwithstanding anything
to the contrary herein, Client is prohibited at all times from distribution,
public display or public performance of the Software, in source code or object
code form, and from using the Software in a service bureau, time-sharing or
out-sourcing capacity.
In Witness Whereof, the parties have entered into this Agreement as of the
date set forth above.
BRIDGE BANK OF SILICON VALLEY BServ, Inc., a Nevada corporation
By: XXX SA
____________________________
Xxx Sa
Its: Chief Financial Officer
Exhibits:
Exhibit A Specifications
Exhibit B Fee Schedule
Exhibit C Software License Agreement
Exhibit D Client Hardware and Software Requirements
Exhibit E GFX Client Application Support
11
EXHIBIT A-SPECIFICATIONS
DESCRIPTION OF SERVICES
TYPES OF SERVICES:
BankServ will provide the Client a PC based front-end wire transfer processing
software interface to the Federal Reserve Bank's (FRB) FEDWIRE system.
The system is domiciled on a server located in a secured area at BankServ`s Las
Vegas data center with a fully emulated backup installation at a similar site in
San Francisco.
Communication links between the Client and BankServ and BankServ and the FRB are
via fully encrypted lines that meet or exceed FRB security standards.
The system will be used in lieu of the Client's current FRB FEDLINE
arrangements, and will perform/provide the following:
Daily interface with Client's data processing system (INSERT NAME) for
update, inquiry, posting and related accounting transactions pertaining to
wire transfer functions. These will be done at times and in formats agreed
upon by the Client, BankServ and the data processing host. The efficacy of
the interface is guaranteed upon installation and only at the commencement
of "live" processing, after successful completion of a mutually agreed upon
testing period. Since (INSERT NAME)'s activities are beyond BankServ's
control, BankServ limits its warranty to the successful installation and
commencement of live processing. Any processing activities subsequent to
the initial service shall remain as described in section 12 of this
agreement.
Subsequent to the commencement of "live" processing, BankServ shall adhere
to the Customer Application Support described in Exhibit E attached hereto.
Actions directed by the appropriate function buttons at the Client's
location(s) will be completed no longer than 3-5 seconds from the time the
Client acts on the execution button(s) (e.g.OKlsave)
Automated Office of Foreign Asset Control (OFAC) verification via an
on-line interface with a regularly updated OFAC database.
Automated Bank Secrecy Act (BSA) archiving and retrieval through on-line
access to the last 6 months' data with the remaining mandated information
available via inquiry on external media provided to the Client.
Automated generation of notifications for the Client's customers via mail
or fax. (Specific hardware requirements may apply)
The capability to create formats for repetitive wires, operator access
arrangements, internal security levels, and other similar operationally
related elements.
The capability to offer remote (customer) initiation of wire transactions.
FEDWIRE ENVIRONMENT MANAGEMENT:
Maintain hardware and software encompassing full FEDWIRE, BSA and OFAC
processing capabilities including FRB mandated regulatory changes and processing
changes.
Maintain a full disaster recovery capability including twice yearly certifiable
tests proving said capability.
FEDWIRE TRANSACTION MANAGEMENT:
Manage the receipt and origination of all the Client's inbound and outbound
FEDWIRE transactions per FRB wire processing deadlines.
Manage the interfaces to OFAC and 3' party service bureaus per agreed upon
processing timeframes and specifications.
Manage the fallback to the disaster recovery site in the event of BankServ or
the Client's business interruption.
Provide BSA archive data and record retention for the Client's inquiries.
FEDWIRE NETWORK MANAGEMENT:
Client workstation network access management to the FEDWIRE server.
Client authentication network security access management to the FEDWIRE server.
Communications interface to the FRB including their mandated security controls
and dial backup capability to the FRB's disaster recovery site.
OPERATIONS MANAGEMENT:
Maintain Network Control Operations and Customer Service groups to perform the
services and support required to manage the Client's wire transfer business and
interact directly with their wire transfer operations personnel.
HOURS OF OPERATION:
Wire Transfer Network (system) Control - 5:00 AM - 5:30 PM PST
Monday - Friday
Wire Transfer Customer Service - 5:00 AM - 5:30 PM PST
Monday -- Friday
PROJECT MANAGEMENT:
Manage the conversion of existing Client wire transfer processing to the
BankServ wire transfer system, consisting of:
o Project management.
o Operations review and Client conversion tasks.
o Operations training.
o System hardware, software, and telecommunications access setup.
o Programming changes to interface with the Client's systems.
13
EXHIBIT B
FEE SCHEDULE
BANKSERV PROPRIETARY AND CONFIDENTIAL EXHIBIT B
GFXN PRICE LIST (GOOD FROM BRIDGE BANK
5/1/02 TO 5/31/02 FOR A CONTRACT
SIGNED BY 5/31/02)
ASP LICENSE FEES
GFXN Packaged License (Due on $55,000.00 Provides for the use of BankServ's GFXN Wire
signing) Transfer Product on an ASP basis.
GFXN real time interface: Included Customization will be at standard professional
Xxxxxxxx, FiServ ITI, FiServ CBS, services rates. Interfaces to applications not
AllTel Horizon, OSI, Metavante, covered in this list will be developed at standard
AllTel IMPACS professional services hourly rates.
GFXN batch End of Day (EOD) or Included Customization will be at standard professional
Beginning of Day (BOD) interface services rates
GFXN CashManagement Interface: $10,000.00 each Customization will be at standard professional
Magnet, BankLink, Fundtech, services rates. Interfaces to applications not
Xxxxxxxx & Xxxxxxxx, Q-UP, covered in this list will be developed at standard
BankonIT professional services hourly rates.
Secure ID card $250.00 each Includes the establishment of an IP address on the
BankServ firewall
Implementation/Training Implementation plus 6 days of Implementation charges include consulting
training are included assistance in the use of the program,
certification of communications conectivity, and
onsite training. Rates for consulting/training are
listed below. Customization of development of new
functionality is charged at custom programming
rates, and an estimate will be provided in a
Statement of Work. Estimate includes 6 days of
training. Airfare, lodging and reasonable living
and miscellaneous expenses will be submitted for
reimbursement.
TRANSACTION FEES
MONTHLY TRANSACTION VOLUME
<2,100 2,101- 4,201 For comparative purposes the tiers are equal to
4,200 8,400 8,401+ less than 100 wires per day, 101 to 200, 201 to
400 and greater than 400
Fedwires, Book Transfers, and
NBES $2.95 $2.70 $2.45 $2.20 Pricing is by volume tiers which represent thres-
holds. Once a customer reaches the next threshold
all wires processed that month will be at that
threshold price.
Message wires non payment related N/C
Fax Advice $0.50
15
Email Advice $0.40
On Line history $0.01 per wire Based on the number of wires held in history on
the last day of the month Charge is capped at $250
per month.
Packaged transaction fee $5,500.00 Covers all wires up to the highest volume for that
tier. Wires in excess of the highest volume will
be charged at the per wire price in the next
appropriate tier. For example 2,105 wires would be
priced at $5,500 plus 5 wires at $2.70. In the
event of an early termination of the contract, the
Packaged Transaction Fee, being used at the time
of termination, for the remaining term of the
contract shall become due and payable.
OPTIONAL MODULES - BASE MONTHLY
CHARGES
Monthly maintenance charge for Included
each real time interface
Monthly maintenance charge for Included
each batch EOD or BOD interface
Monthly maintenance charge for Included
each Cash Management System
interface
Monthly Base Charge per Secure ID $5.00
card issued
Transmitted Reports Included
PROFESSIONAL SERVICES OTHER
Professional Services-Project $175.00 per hour All hourly and per day rates to not include any
Management travel expenses. If travel is necessary; airfare,
lodging and reasonable living and miscellaneous
expenses will be submitted for reimbursement
Professional Services-Training $1,200.00 per day All hourly and per day rates to not include any
travel expenses. If travel is necessary; airfare,
lodging and reasonable living and miscellaneous
expenses will be submitted for reimbursement
Professional Services-Custom $225.00 per hour All hourly and per day rates to not include any
Programming travel expenses. If travel is necessary; airfare,
lodging and reasonable living and miscellaneous
expenses will be submitted for reimbursement
Telecommunications costs from Client will be billed directly by BankServ's
client to BankServ telecommunications carrier
Client specific hardware/software Client responsibility
Hardware/Software maintenance Client responsibility
NOTES:
1. This pricing requires either a 4 or 5 year agreement.
2. CPI Increases - On January 1 of each year each price will be subject to an increase equal to the increase in the CPI. If year 1
of the agreement is a partial calendar year, the increase will be prorated.
16
EXHIBIT C
SOFTWARE SUBLICENSE AGREEMENT
This Software Sublicense Agreement (this "Sublicense Agreement") is made as of
this __ day of _______, 200_, by and between [Sublicensor), a __________________
("Sublicensor") and the undersigned sublicensee ("Sublicensee").
Sublicensor and Sublicensee hereby agree to the terms, person or entity, whether
voluntarily, involuntarily or by conditions and covenants of this Sublicense
Agreement as of operation of law.
date of entering into the ________________________Agreement.
1. DEFINITION OF TERMS:
(a) "Documentation" shall mean the standard user documentation supplied by
Sublicensor with the Software.
(b) "Software" shall mean the proprietary computer software entitled
_____________."
(c) "Use" shall mean copying of any portion of the Software into a machine,
transmitting it to a machine, viewing the instructions, or processing the
machine instructions, statements or data contained in such materials.
2. GRANT OF SUBLICENSE. Sublicensor grants to Sublicensee, during the term of
this Sublicense Agreement, a royalty-free, non-exclusive, non-transferable
Sublicense to use the Software and Documentation on such computer central
processing units owned or controlled by Sublicensee for Sublicensee's own
internal operations, solely in conjunction with _________________provided by
Sublicensor and/or BServ, Inc., a Nevada corporation ("BankServ") subject to the
terms and conditions of this Sublicense Agreement. Sublicensee is prohibited
from using the Software in a service bureau, time-sharing or out-sourcing
capacity.
3. TERM. Unless earlier terminated, the term of this Sublicense Agreement and
the Sublicense granted hereby shall be concurrent with the term of the master
license agreement of the Software from BankServ to Sublicensor. This Sublicense
Agreement and the sublicense granted hereby shall immediately terminate upon the
expiration or earlier termination of the master license. Upon the termination of
this Sublicense Agreement, Sublicensee shall immediately cease all use and
return to Sublicensor all copies of the Software and the Documentation in any
form In Sublicensee's possession or control, and all copies of other
confidential or proprietary information of BankServ.
4. COPIES. Sublicensee may copy the Software solely for use on computer central
processing units owned or controlled by Licensee and for backup purposes.
Sublicensee may copy the Documentation for internal purposes only in connection
with Sublicensee's use of the Software. All copies of the Software and the
Documentation shall remain the exclusive property of BankServ, and Sublicensee
shall have no right, title or interest therein. Sublicensee may not assign,
sublicense, or otherwise transfer this sublicense to any other person or entity,
whether voluntarily, involuntarily or by operation of law.
5. INTELLECTUAL PROPERTY RIGHTS.
(a) Copyright. Sublicensee agrees that the Software and Documentation are works
on which BankServ holds the sole and exclusive copyright. Sublicensee shall
maintain all copyright notices on the Software and Documentation, and shall
reproduce such notices on all copies of the Software, and upon all tangible
medium, such as diskettes, upon which copies are stored.
(b) Trade Secrets. Sublicensee agrees that the Software and Documentation
contain valuable trade secrets and confidential information which are the
unrestricted proprietary rights of BankServ. Sublicensee agrees that it will not
use this information in any way not allowed by this Sublicense Agreement, that
it will not disclose this information to anyone other than its own employees who
require access, that it will protect and maintain the confidentiality of this
information, and that it will take all precautions to prevent any unauthorized
use or disclosure of this information. Sublicensee further agrees that It will
not decompile, disassemble, or reverse engineer the Software or permit others to
do so.
(c) Sublicensee Obligations. Sublicensee shall be responsible and liable to
Sublicensor and BankServ for all loss and damage suffered Sublicensor arising
from any breach of this Section 5, and all such loss and damage arising as a
consequence of any unauthorized use or disclosure by any person having access to
the said information and data while in the possession or under the control of
Sublicensee. Sublicensee agrees that any breach or attempted or threatened
breach of this Section 5, will cause irreparable harm to Sublicensor and
BankServ. Accordingly. Sublicensee agrees that (i) in the event of breach or
attempted or threatened breach of this Sublicense Agreement, Sublicensor may
terminate this Sublicense immediately, and (ii) if a court of competent
jurisdiction determines that Sublicensee has breached or attempted or threatened
to breach of this Section 5, then Sublicensee will consent to the entry of an
injunction against it without the need for Sublicensor to make a showing of
Irreparable harm. The obligations imposed on the Sublicensee and BankServ and
the rights conferred upon Sublicensor by this Section 5 shall not be
extinguished upon termination of this Sublicense Agreement or the sublicense
hereby granted, but shall remain continuing obligations of Sublicensee.
17
6. DISCLAIMER OF WARRANTY.
(a) No Warranty. Except for the efficacy of the software upon installation and
only at the commencement of its use, Sublicensor does not warrant, that the
Software will operate uninterrupted of or error free, operate In combination
with other software or meet the Sublicensee's requirements. Sublicensee is
solely responsible for verifying the correctness and accuracy of all data and
calculations.
(b) Exclusive Remedy. Sublicensee agrees that the Software is of such complexity
that It may have defects. Therefore, Sublicensee agrees that if the Software
fails to perform as warranted, then as Sublicensee's exclusive remedy,
Sublicensor will, at its option, either (i) provide software support services
necessary to correct material errors reported to Sublicensor in writing by
Sublicensee and which Sublicensor is able to reproduce, or (ii) terminate this
Sublicense Agreement and the sublicense granted hereunder.
(c) EXCLUSIVE WARRANTY. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED. SUBLICENSOR AND BANKSERV
SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO WARRANTIES RELATING TO QUALITY, PERFORMANCE, INFRINGEMENT,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE.
7. THIRD PARTY BENEFICIARY. The parties agree that BankServ is a third-party
beneficiary to this Agreement and may enforce this Agreement as if it were a
party hereto.
8. GOVERNING LAW: ATTORNEYS' FEES. This Sublicense Agreement shall be governed
by the laws of the State of California, except for provisions related to
conflicts of laws. In any action to enforce this Sublicense Agreement or remedy
any breach hereof, the prevailing party shall be entitled to recover its
attorneys' fees.
9. AMENDMENT WAIVER. No amendment or modification of this Sublicense Agreement
will be effective unless it is in writing and signed by the parties hereto. No
party shall by mere lapse of time, without giving notice or taking other action
hereunder, be deemed to have waived any breach by the other party of any of the
provisions of this Sublicense Agreement. Further, the waiver of any provision of
this Sublicense Agreement shall not constitute a continuing waiver of such
breach or of other breaches of the same or other provisions of this Sublicense
Agreement.
IN WITNESS WHEREOF, the parties have executed this Sublicense Agreement as of
the date first above written.
SUBLICENSOR:
___________________________, a _______________ ________________
By: _______________________
Its: _________________________________________
SUBLICENSEE:
___________________________, a _______________ ________________
By: _______________________
Its: _________________________________________
18
EXHIBIT D
CLIENT HARDWARE, SOFTWARE AND TELECOMMUNICATIONS REQUIREMENTS
SOFTWARE:
GFX CLIENT SOFTWARE VERSION __________ can run on any Windows platform including
Windows 95 (Version B), WINDOWS 98, AND Windows NT Workstation of Windows NT.
HARDWARE:
GFX CLIENT software requires an IBM compatible 486 processor with 8mb of RAM and
20mb of hard drive space.
The software would be "loaded onto the Client's WAN or LAN for internal users
and appear on those PC workstations designated by the Client. External users
(customers) can be given access to the system at the Client's option. They would
be connected through either the Client's cash management system or directly
through frame relay or dial-up telecommunications links at the Client's option.
Daily wire volume is the primary determinant of which telecommunications option
the Client will use. We recommend that Clients with more than 50 wires per day
consider the frame relay option but there is no required volume. The Client can
also use a mixture of both types of telecommunications links for various
locations, again as volumes warrant.
Frame-relay communications links require a router and related peripheral
equipment (the recommended configuration is shown below):
QTY PART # DESCRIPTION
2 CISCO 1720 lO/lOOBaseT Modular Router w/2 WAN slots, 8M Flash/32M DRAM
1 WIC-1DSU-56K4 1-Port 4-Wire 56Kbps DSU/CSU WAN Interface Card
1 WIC- lB-U 1-Port ISDN with NT-i WAN Interface Card dial and
leasedline
2 WIC-1ENET Single-Port Ethernet WAN Interface Card
1 ? 2' Ethernet Crossover Cable
The equipment listed above may be ordered by BankServ for actual
purchase/payment by Client, at the Client's option. Prices and availability are
subject to the supplier.
Dial-up communications links only require a modem.
TELECOMMUNICATIONS COSTS:
These are billed as a "pass-through" as provided by our carrier, AT&T. Charges
vary with either the frame-relay or dial-up options.
While a specific quote can be provided upon request, average monthly charges for
the frame-relay option are about $500, these are applied as a monthly flat rate
with NO additional activity charges. This fee includes links to both BankServ's
primary and backup sites and also provides an additional ISDN fallback
capability. The frame-relay lines access a local AT&T site (usually within the
same Area Code as the Client's
19
primary 1caticn) so that toll charges are minimized.
Dial-up lines are billed at $3.50 per hour (calculated by the minute for actual
connect time). These also use a local Area Code to avoid long distance charges.
Users may migrate from dial-up to frame-relay access at any time, conversion
takes about 30 days.
20
EXHIBIT E
GFXN CLIENT APPLICATION SUPPORT
OVERVIEW:
BankServ(R) Client Application Support will respond to and work on all Client
support requests with respect to the most recent version of the software
delivered to the Client with additional charge at Time and Material rates during
the term of the Software License and Support Agreement (hereinafter System
Support Services"). The support will include:
o Accepting and fielding Client requests and escalations.
o Troubleshooting Client issues.
o Working with BankServ(R) Development on an action plan for Client issues.
o Escalating Client requests for changes in severity level to BankServ(R)
Development and/or management when necessary.
o Communicating status of Incident Tickets on a timely basis.
o Handling response, resolution and closure within the stated time limits.
o Closing Incident Tickets with the Client's approval.
o Supplying the Client with all technical bulletins, updated user guides and any
other updated documentation.
o Supplying the Client with all interim and maintenance releases of the
software that are released or made available by BankServ(R) from time to
time
SUPPORT TIER DEFINITIONS:
FIRST LEVEL SUPPORT:
Support for Client's customers (i.e. questions on status of wires)
Second level Support:
Support of Clients internal non-GFX related events (i.e. network card
malfunction)
Third level 3 Support:
Support or GFX related issues
SEVERITY LEVEL DEFINITIONS:
SEVERITY 1:
A CRITICAL PROBLEM that requires immediate attention and circumvention is not
available: e.g. The production system is down and cannot be brought up.
SEVERITY 2:
21
A LIMITED CRITICAL PROBLEM that restricts functionality: e.g. the product
operates but is severely restricted; or the production system is regularly
disrupted (i.e. 2 or 3 times a week).
SEVERITY 3:
A LIMITED NON-CRITICAL PROBLEM that is occurring with the production system but
the majority of functions are still usable: e.g. the production system is
occasionally impacted (less than once per week); or a problem occurs when a
specific facility or function is invoked.
SEVERITY 4:
A MINIMAL IMPACT PROBLEM or question which does not affect product function:
e.g. An infrequently used utility occasionally gives misleading results; or a
problem has occurred once but has not yet reoccurred and cannot be reproduced;
or a problem occurs once but can be circumvented without undue difficulty; or a
non-reproducible problem impacts the consumer community.
ROLES AND RESPONSIBILITIES:
o The Client is responsible for providing First and Second level support for
the hosted application and escalating Third level support requests to
BankServ(R) Client Application Support.
o A dedicated resource from the Client for the period covering "Initial
Contact with Client" through "Issue Diagnosis" for seventy I and severity 2
incident tickets will be necessary to ensure quality and timely resolution
of those incident tickets. This resource will be the Client's
escalation1ath to BankServ(R) Client Application Support and should
initiate the contact to BankServ Client Application Support.
o BankServ(R) Client Application Support will provide Third level support to
the Client's support requests. Third level support will provided on a Time
and Materials basis at BankServ's published standard rates. 7 x 24 support
package is available for $25,000 per year or business hour support (5 a.m.
Pacific Time to 5:30 p.m. Pacific Time) is available for $12,500 per year.
THIRD LEVEL SUPPORT ON SEVERITY 3 AND SEVERITY 4 RESPONSE METRICS:
Initial Contact with Client within 4 hours of contact
Issue Diagnosis by end of next business day after
Client contact
Client Status Updates (requires development) as needed before software release
22
FOLLOW UP CALLS:
BankServ(R) Client Application Support will be responsible for following up
with the Client on all support requests. Follow up calls will occur when any of
the following conditions are met:
o Incident ticket requires additional information from the Client.
o Incident ticket is ready to be closed and needs Client approval.
o Client requires additional information on the incident ticket.
o Incident ticket has been escalated.
o Incident ticket has changed severity levels.
o BankServ(R) Client Application Support is conducting a Client satisfaction
survey.
CALL CLOSURE:
An incident ticket will be closed when any of the following conditions have been
met:
o The Client requests closure of the incident ticket since resolution has
occurred.
o The Client requests closure of the incident ticket without further
investigation into the matter.
o The incident ticket has been determined to have a diagnosis of No Trouble
Found.
o The incident ticket has been open more than 5 business days without any
response from the Client to information requests from BankServ(R) Client
Application Support.
SOFTWARE UPDATES:
BankServ(R) Client Application Support may provide software updates to the
Client. The updates will address issues that BankServ(R) deems necessary to
ensure the proper operation of the software provided to the Client. Technical
support related to installation of upgrades is available on a Time and Materials
basis.
23
BRIDGE BANK
*** FACSIMILE COVER ***
DATE: JUNE 26, 2002 # PAGES: 2, (including cover page)
TO: Xxxx Xxxxxxxx FROM: Xxx Sa
COMPANY: BankServe SENDER'S PHONE: 000.000.0000
FAX: 00.0.000.0000 SENDER'S E-MAIL: xxx.xx@xxxxxxxxxx.xxx
PHONE NO.:
RE: BRIDGE BANK AGREEMENT
oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo
Xxxx,
As requested by Xxxx Xxxxx, following please find the signature page of the
Bridge Bank agreement executed by me today. I am forwarding the original to you
via FedEx.
I look forward to moving ahead with Bankserve.
Regards.
Xxx
The information contained in this message is privileged and is intended only for
the individual or entity in this transmission sheet. If the reader of this
message is not the intended recipient, or employee or agent responsible for
delivering it to the intended recipient, you are hereby notified that
dissemination, distributing or copying of this communication is strictly
prohibited. If you have received this transmission in error, please immediately
notify us by telephone and return the original message to us at the address
below via the U.S. Postal Service. Upon request we will reimburse you for any
cost of the return.
0000 XX XXXXXX XXXX
XXXXX XXXXX, XX 00000
TEL. 408423.8500
FAX: 408 423.8520
XXX.XXXXXXXXXXXX.XXX
