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EXHIBIT 10.4
Agreement Number: BK98-62IT
AGREEMENT
between
FISERV SOLUTIONS, INC.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
and
Community Shores Bank Corporation
0000 Xxxxxxxx
Xxxxxxxx, XX 00000
Date: 10-7-98
FISERV
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AGREEMENT dated as of 10-7-98 ("Agreement") between FISERV SOLUTIONS, INC., a
Wisconsin corporation ("Fiserv"), and Community Shores Bank ("Client"). The
terms and conditions of this Agreement are contingent on converting the Client
to the Fiserv system the weekend of January 16, 1999 or another mutually
agreeable date.
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Fiserv and Client hereby agree as follows:
1. Term. The initial term of this Agreement shall be three (3) years and,
unless written notice of non-renewal is provided by either party at least 180
days prior to expiration of the initial term or any renewal term, this Agreement
shall automatically renew for a renewal term of one ( 1 ) year. This Agreement
shall commence on the earliest of the day Fiserv Services (as defined below) are
first used by Client.
2. Services. (a) Services Generally. Fiserv, itself and through its
affiliates, agrees to provide Client, and Client agrees to obtain from Fiserv
services ("Services") and products ("Products") (collectively, "Fiserv
Services") described in the attached Exhibits:
Exhibit A - Account Processing Services
Exhibit B - Performance Standards
The Exhibits set forth specific terms and conditions applicable to the
Services and/or Products, and, where applicable, the Fiserv affiliate so
performing. Client may select additional services and products from time to time
by incorporating an appropriate Exhibit to this Agreement.
(b) Conversion Services. Fiserv will convert Client's existing applicable
data and/or information to the Fiserv Services. Those activities designed to
transfer the processing from Client's present servicer to the Fiserv Services
are referred to as "Conversion Services". Client agrees to cooperate with Fiserv
in connection with Fiserv's provision of Conversion Services and to provide all
necessary information and assistance to facilitate the conversion. Client is
responsible for all out-of-pocket expenses associated with the Conversion
Services. Fiserv will provide Conversion Services as required in connection with
Fiserv Services.
(c) Training Services. Fiserv shall provide training, training aids, user
manuals, and other documentation for Client's use as Fiserv finds necessary to
enable Client personnel to become familiar with Fiserv Services. If requested by
Client, classroom training in the use and operation of Fiserv Services will be
provided at a training facility designated by Fiserv. All such training aids and
manuals remain Fiserv's property.
3. Fees for Fiserv Services. (a) General. Client agrees to pay Fiserv:
(i) estimated fees for Fiserv Services for the following month as
specified in the Exhibits;
(ii) estimated out-of-pocket charges for the
following month payable by Fiserv for the account of Client; and
(iii) estimated Taxes (as defined below) thereon (collectively, "Estimated
Fees").
Fiserv shall timely reconcile Estimated Fees paid by Client for the Fiserv
Services for the month and the fees and charges actually due Fiserv based on
Client's actual use of Fiserv Services for such month. Fiserv shall either issue
a credit to Client or provide Client with an invoice for any additional fees or
other charges owed. Fiserv may change the amount of Estimated Fees billed to
reflect appropriate changes in actual use of Fiserv Services. Estimated Fees may
be increased from time to time as set forth in the Exhibits. Upon notification
to and acceptance by Client, Fiserv may increase its fees in excess of amounts
listed in the Exhibits in the event that Fiserv implements major system
enhancements to comply with changes in law, government regulation, or industry
practices.
(b) Additional Charges. Fees for out-of-pocket expenses, such as
telephone, microfiche, courier, and other charges incurred by Fiserv for goods
or services obtained by Fiserv on Client's behalf shall be billed to Client at
cost plus the applicable Fiserv administrative fee which fee will be capped at
ten (10%) percent. Such out-of-pocket expenses may be changed from time to time
upon notification of a fee change from a vendor/provider.
(c) Taxes. Fiserv shall add to each invoice any sales, use, excise, value
added, and other taxes and duties however designated that are levied by any
taxing authority relating to the Fiserv Services ("Taxes"). In no event shall
"Taxes" include taxes based upon the net income of Fiserv.
(d) Exclusions. The Estimated Fees do not include, and Client shall be
responsible for, furnishing transportation or transmission of information
between Fiserv's service center(s), Client's site(s), and any applicable
clearing house, regulatory agency, or Federal Reserve Bank.
(e) Payment Terms. Estimated Fees are due and payable monthly upon receipt
of invoice. Client shall pay Fiserv through the Automated Clearing House. In the
event any amounts due remain unpaid beyond the 30th day after payment is due,
Client shall pay a late charge of 1.0% per month provided that if Client should
dispute any charges on an invoice, that amount may be set aside without being
considered
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in default until resolved with Fiserv in a timely manner. Client agrees that it
shall neither make nor assert any right of deduction or set-off from Estimated
Fees on invoices submitted by Fiserv for Fiserv Services.
4. Access to Fiserv Services. (a) Procedures. Client agrees to comply with
applicable regulatory requirements and reasonable 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. The compatible hardware utilized to access
the Fiserv System consists of systems supplied by Compaq, IBM, NCR and Unisys.
If Client has elected to provide such items itself that is not one of the four
listed vendors; Client agrees to pay Fiserv's standard fee for recertification
of the Fiserv System resulting therefrom.
(b) Client Personnel. Client shall designate appropriate Client personnel
for training in the use of the Fiserv System, shall supply Fiserv with
reasonable access to Client's site during normal business hours for Conversion
Services and shall cooperate with Fiserv personnel in their performance of
Services, including Conversion Services.
(c) Use of Fiserv System. Client shall (i) comply with any operating
instructions on the use of the Fiserv System provided by Fiserv; (ii) review all
reports furnished by Fiserv for accuracy; and (iii) work with Fiserv to
reconcile any out of balance conditions. Client shall determine and be
responsible for the authenticity and accuracy of all information and data
submitted to Fiserv.
(d) Client's Systems. Client shall be responsible for insuring that its
systems are year 2000 compliant and capable of passing and/or accepting date
formats from and/or to the Fiserv systems. Beginning in the fourth quarter of
1998, Fiserv will provide opportunities for Clients to test Fiserv software for
compliance in Client's environment. Should test results identify an error in
handling year 2000 dates, Fiserv will correct its software, but will not be
responsible for third party or other Client products or programs not developed
and maintained by Fiserv. Should Fiserv be unable to correct known material
errors in its software prior to July 30, 1999, the Client may terminate this
Agreement without termination fees provided that the Client has supplied Fiserv
with written notice within sixty (60) days from July 30, 1999.
6. Ownership and Confidentiality. (a) Fiserv Information Client
acknowledges that all computer programs, including software modifications
developed by Fiserv for its proprietary software (subject to rights of Client to
Custom Programming of Client as mutually agreed upon from time to time),
software documentation and training aids, and all data, code, techniques,
algorithms, methods, logic, architecture, and designs, embodied or incorporated
therein, made available by Fiserv as part of the Services are CONFIDENTIAL
INFORMATION belonging exclusively to Fiserv or third parties from whom Fiserv
has secured a right of use. Client shall treat as confidential and will not
disclose or otherwise make available any of the Confidential Information, in any
form, to any person other than employees or authorized representatives of Client
who require such access or disclosure to perform their duties for Client and
have agreed to keep the Confidential Information confidential, consistent with
this Agreement. Client will not use the Confidential Information except in
connection with the Services under this Agreement. The Confidential Information
will be returned to Fiserv upon Fiserv's request or in the event of termination
of this Agreement. The term "Confidential Information" shall not include
information or data which was known to the receiving party prior to delivery by
one to the other, is or becomes publicly available or is disclosed to the other
party by a third party who is not under a duty of confidentiality.
(b) Client Information. Fiserv will treat Client Files as confidential
and will not disclose or otherwise make available Client Files to any person or
entity except as
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described in paragraph 8. Fiserv will also maintain the confidentiality of all
Client's business practices and procedures.
(c) Confidentiality of This Agreement. Fiserv and the Client agree to keep
confidential without disclosure to third parties other than authorized
representatives of Client and governmental representatives to include, but not
limited to, auditors, accountants, attorneys, of the Securities and Exchange
Commission, State Securities Commission, Bond Regulatory Agencies and agencies,
consultants, the prices, terms and conditions set forth in this Agreement.
(d) Securities filing exception. Notwithstanding any other provision of
this Agreement, Fiserv agrees that Client may file this Agreement with the
Securities and Exchange Commission ("SEC") and any state securities agencies,
and may include a brief summary of this Agreement in any registration statement
or report that it files with the SEC or any such agencies.
7. Regulatory Agencies, Regulations and Legal Requirements. (a) Client
Files. Records maintained and produced for Client ("Client Files") may be
subject to examination by such Federal, State, or other governmental regulatory
agencies as may have jurisdiction over Client's business to the same extent as
such records would be subject if maintained by Client on its own premises.
Client agrees that Fiserv is authorized to give all reports, summaries, or
information contained in or derived from the data or information in Fiserv's
possession relating to Client when formally requested to do so by an authorized
regulatory or government agency.
(b) Compliance with Regulatory Requirements. Client agrees to comply with
applicable regulatory and legal requirements, including without limitation:
(i) submitting a copy of this Agreement to the appropriate regulatory
agencies prior to the date Services commence; (ii) providing adequate
notice to the appropriate regulatory agencies of the termination of this
Agreement or any material changes in Services; (iii) retaining records of
its accounts as required by regulatory authorities; (iv) obtaining and
maintaining, at its own expense, any Fidelity Bond required by any
regulatory or governmental agency; and (v) maintaining, at its own
expense, such casualty and business interruption insurance coverage for
loss of records from fire, disaster, or other causes, and taking such
precautions regarding the same, as may be required by regulatory
authorities.
8. Warranties. (a) Fiserv Warranties. Fiserv represents and warrants
that:
(i)(A) Services will conform to the specifications set forth in the
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
and State regulations governing Services; and (E) the Fiserv System is or
will be 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 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 sixty (60) 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 ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES
MADE BY FISERV. FISERV DOES NOT MAKE, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL
OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL LIABILITIES
OR OBLIGATIONS OF FISERV FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE
DELIVERY, USE, OR PERFORMANCE OF FISERV SERVICES.
(b) Client Warranties. Client represents and warrants that: (A) no
contractual obligations exist that would prevent Client from entering into this
Agreement; (B) it has complied with all applicable regulatory requirements; and
(C) Client has requisite authority to execute, deliver, and perform this
Agreement. Client shall indemnify and hold harmless Fiserv, its officers,
directors, employees, and affiliates against any claims or actions arising out
of (X) the use by Client of the Fiserv System in a manner other than that
provided in this Agreement; and (Y) any and all claims by third parties through
Client arising out of the performance and non-performance of Fiserv Services by
Fiserv, provided that the indemnity listed in clause
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(Y) hereof shall not preclude Client's recovery of direct damages pursuant to
the terms and subject to the limitations of this Agreement.
9. Limitation of Liability. (a) General. IN NO EVENT SHALL FISERV BE
LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING FROM CLIENT'S USE OF FISERV SERVICES, OR FISERV'S
SUPPLY OF EQUIPMENT OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT
OR IN CONTRACT. CLIENT MAY NOT ASSERT ANY CLAIM AGAINST FISERV MORE THAN 2 YEARS
AFTER SUCH CLAIM ACCRUED. FISERV'S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF
ACTION RELATING TO SERVICES SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO
FISERV FOR SERVICES RESULTING IN SUCH LIABILITY IN THE 12 MONTH PERIOD PRECEDING
THE DATE THE CLAIM ACCRUED. FISERV'S AGGREGATE LIABILITY FOR A DEFAULT RELATING
TO EQUIPMENT OR SOFTWARE SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT FOR THE
EQUIPMENT OR SOFTWARE.
(b) Lost Records. If Client's records or other data submitted for
processing are lost or damaged as a result of any failure by Fiserv, its
employees, or agents to exercise reasonable care to prevent such loss or damage,
Fiserv's liability on account of such loss or damages shall not exceed the
reasonable cost of reproducing such records or data.
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 request, test results will be made available
to Client's management, regulators, auditors, and insurance underwriters.
(d) Client Plans. Fiserv agrees to release information necessary to allow
Client's development of a disaster recovery plan that operates in concert with
the Disaster Recovery Plan.
(e) 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 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. Should Client dispute any charges on an invoice, that amount may
be set aside without being considered in default until resolved with Fiserv in a
timely manner.
(c) Remedies. Remedies contained in this Section 11 are cumulative and are
in addition to the other rights and remedies available to Fiserv under this
Agreement, by law or otherwise.
(d) Defaults. If Client:
(i) defaults in the payment of any sum of money due;
(ii) breaches this Agreement in any material respect or otherwise defaults
in any material respect in the performance of any of its obligations under
this Agreement;
(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;
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then, in any such event, Fiserv may, upon written notice, terminate this
Agreement and be entitled to recover from Client as liquidated damages an amount
equal to the present value of all payments remaining to be made hereunder for
the remainder of the initial term or any renewal term of this Agreement. For
purposes of the preceding sentence, present value shall be computed using the
"prime" rate (as published in The Wall Street Journal) in effect at the date of
termination and "all payments remaining to be made" shall be calculated based on
the average bills for the 3 months immediately preceding the date of
termination. Client agrees to reimburse Fiserv for any expenses Fiserv may
incur, including reasonable attorneys' fees, in taking any of the foregoing
actions.
(e) Convenience. Client may terminate this Agreement during any term by
paying a termination fee based on the remaining unused term of this Agreement,
the amount to be determined by multiplying Client's largest monthly invoice for
each Fiserv Service received by Client during the term (or if no monthly invoice
has been received, the sum of the estimated monthly billing for each Fiserv
Service to be received hereunder) by 80% times the remaining months of the term,
plus any unamortized conversion fees or third party costs existing on Fiserv's
books on the date of termination. Client understands and agrees that Fiserv
losses incurred as a result of early termination of the Agreement would be
difficult or impossible to calculate as of the effective date of termination
since they will vary based on, among other things, the number of clients using
the Fiserv System on the date the Agreement terminates. Accordingly, the amount
set forth in the first sentence of this subsection represents Client's agreement
to pay and Fiserv's agreement to accept as liquidated damages (and not as a
penalty) such amount for any such Client termination.
(f) Merger. In the event of a merger between Client (or its holding
companies) and another organization in which Client is not the surviving
organization and where the other organization was not previously a user of
Fiserv services similar to the Services, Fiserv will allow an early termination
of this Agreement upon the following terms and conditions:
(i) written notice must be given 3 months in advance, specifying the
termination date;
(ii) Fiserv may specify a deconversion date based on its previous
commitments and work loads; and
(iii) Fiserv may charge a
termination fee in accordance to the following schedule: (A) for the first
and second years, the Client's average monthly invoice excluding third
party charges during that year, for the Fiserv service terminated, times
eighty (80%) percent times twelve (12) months; (B) for the third year, the
Client's average monthly invoice excluding third party costs during the
prior year, for the Fiserv service terminated, times fifty (50%) percent
times twelve (12) months.
(g) Return of Data Files. Upon expiration or termination of this
Agreement, Fiserv shall furnish to Client such copies of Client's data files
("Client Files") as Client may request in Fiserv's standard machine readable
format form along with such information to include applicable reports 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 has been paid in full for all
Services provided hereunder through the date such Client Files are returned to
Client, and has been paid any and all other amounts that are due or will become
due under this Agreement, including, but not limited to, data communication
lease obligations, if any; (ii) Fiserv has been paid its then standard rates as
outlined in Exhibit A - 2 Paragraph 8 for providing the services necessary to
return such Client Files; (iii) if this Agreement is being terminated, Fiserv
has been paid any applicable termination fee pursuant to subsection (c), (d), or
(e) above; and (iv) Client has returned to Fiserv all Fiserv Confidential
Information if requested by Fiserv. Unless directed by Client in writing to the
contrary, Fiserv shall be permitted to destroy Client Files any time after
thirty (30) days from the final use of Client Files for processing.
(h) Miscellaneous. Client understands and agrees that Client is
responsible for the deinstallation and return shipping of any Fiserv-owned
equipment located on Client's premises.
12. Arbitration. (a) General. Except with respect to disputes arising from
a misappropriation or misuse of either party's proprietary rights, any dispute
or controversy arising out of this Agreement, or its interpretation, shall be
submitted to and resolved exclusively by arbitration under the rules then
prevailing of the American Arbitration Association, upon written notice of
demand for arbitration by the party seeking arbitration, setting forth the
specifics of the matter in controversy or the claim being made. The arbitration
shall be heard before an arbitrator mutually agreeable to the parties; provided,
that if the parties cannot agree on the choice of arbitrator within 10 days
after the first party seeking arbitration has given written notice, then the
arbitration shall be heard by three arbitrators, one chosen by each party, and
the third chosen by those two arbitrators. The arbitrators will be selected from
a panel of persons having experience with and knowledge of information
technology and at least one of the arbitrators selected will be an attorney. A
hearing on the merits of all claims for which arbitration is sought by either
party shall be commenced not later than 60 days from the date demand for
arbitration is made by the first party seeking arbitration. The arbitrator(s)
must render a decision within 10 days after the conclusion of such hearing. Any
award in such arbitration shall be final and binding upon the parties and the
judgment thereon may be entered in any court of competent jurisdiction.
(b) Applicable Law. The arbitration shall be governed by the United
States Arbitration Act, 9 U.S.C. 1-16. The arbitrators
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shall apply the substantive law of the State of Wisconsin, without reference to
provisions relating to conflict of laws. The arbitrators shall not have the
power to alter, modify, amend, add to, or subtract from any term or provision of
this Agreement, nor to rule upon or grant any extension, renewal, or continuance
of this Agreement. The arbitrators shall have the authority to grant any legal
remedy available had the parties submitted the dispute to a judicial proceeding.
(c) Situs. If arbitration is required to resolve any disputes between the
parties, the proceedings to resolve the first such dispute shall be held in
Muskegon, Michigan the proceedings to resolve the second such dispute shall be
held in, Milwaukee, Wisconsin, and the proceedings to resolve any subsequent
disputes shall alternate between Muskegon, Michigan and Milwaukee, Wisconsin.
13. Insurance. Fiserv carries the following types of insurance policies:
(i) Comprehensive General Liability in an amount not less than $1 million
per occurrence for claims arising out of bodily injury and property
damage;
(ii) Commercial Crime covering employee dishonesty in an amount not less
than $5 million;
(iii) All-risk property coverage including Extra Expense and Business
Income coverage; and
(iv) Workers Compensation as mandated or allowed by the laws of the state
in which Services are being performed, including $500,000 coverage for
Employer's Liability.
14. Audit. Fiserv employs an internal auditor responsible for ensuring the
integrity of its processing environments and internal controls. In addition,
Fiserv provides for periodic independent audits of its operations. Fiserv shall
provide Client with a copy of the audit of the Fiserv service center providing
Services within a reasonable time after its completion and shall charge each
client a fee based on the pro rata cost of such audit. Fiserv shall also provide
a copy of such audit to the appropriate regulatory agencies, if any, having
jurisdiction over Fiserv's provision of Services.
15. General. (a) Binding Agreement. This Agreement is binding upon the
parties and their respective successors and permitted assigns. Neither this
Agreement nor any interest may be sold, assigned, transferred, pledged, or
otherwise disposed of by Client, whether pursuant to change of control or
otherwise, without Fiserv's prior written consent. Client agrees that Fiserv may
subcontract any Services to be performed hereunder. Any such subcontractors
shall be required to comply with all applicable terms and conditions.
(b) Entire Agreement. This Agreement, including its Exhibits, which are
expressly incorporated herein by reference, constitutes the complete and
exclusive statement of the agreement between the parties as to the subject
matter hereof and supersedes all previous agreements with respect thereto.
Modifications of this Agreement must be in writing and signed by duly authorized
representatives of the parties. Each party hereby acknowledges that it has not
entered into this Agreement in reliance upon any representation made by the
other party not embodied herein. In the event any of the provisions of any
Exhibit are in conflict with any of the provisions of this Agreement, the terms
and provisions of this Agreement shall control unless the Exhibit in question
expressly provides that its terms and provisions shall control.
(c) Severability. If any provision of this Agreement is held to be
unenforceable or invalid, the other provisions shall continue in full force and
effect.
(d) Governing Law. This Agreement will be governed by the substantive laws
of the State of Wisconsin, without reference to provisions relating to conflict
of laws. The United Nations Convention of Contracts for the International Sale
of Goods shall not apply to this Agreement.
(e) Force Majeure. Neither party shall be responsible for delays or
failures in performance resulting from acts reasonably beyond the control of
that party.
(f) Notices. Any written notice required or permitted to be given
hereunder shall be given by: (i) Registered or Certified Mail, Return Receipt
Requested, postage prepaid; (ii) confirmed facsimile; or (iii) nationally
recognized courier service to the other party at the addresses listed on the
cover page or to such other address or person as a party may designate in
writing. All such notices shall be effective upon receipt.
(g) No Waiver. The failure of either party to insist on strict performance
of any of the provisions hereunder shall not be construed as the waiver of any
subsequent default of a similar nature.
(h) Financial Statements. Fiserv shall provide Client and the appropriate
regulatory agencies so requiring a copy of Fiserv, Inc.'s audited consolidated
financial statements.
(i) Prevailing Party. The prevailing party in any arbitration, suit, or
action brought against the other party to enforce the terms of this Agreement or
any rights or obligations hereunder, shall be entitled to receive its reasonable
costs, expenses, and attorneys' fees of bringing such arbitration, suit, or
action.
(j) Survival. All rights and obligations of the parties under this
Agreement that, by their nature, do not terminate with the expiration or
termination of this Agreement shall survive the expiration or termination of
this Agreement.
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(k) Exclusivity. Client agrees that during the term of Agreement Fiserv
shall be the sole and exclusive provider of the core processing services that
are the subject matter of this Agreement. For purposes of the foregoing, the
term "Client" shall include Client banking affiliates. During the term of this
Agreement, Client agrees not to enter into an agreement with any other entity to
provide these services (or similar services) that are to be performed during the
term of this Agreement without Fiserv's prior written consent. If Client is
acquired by another entity, the exclusivity provided to Fiserv hereunder shall
apply with respect to the level or volume of these services provided immediately
prior to the signing of the definitive acquisition agreement relating to such
acquisition and shall continue with respect to the level or volume of these
services until any termination or expiration of this Agreement.
(l) Recruitment of Employees. Client agrees not to hire Fiserv's employees
during the term of this Agreement and for a period of 6 months after any
termination or expiration thereof, except with Fiserv's prior written consent.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date indicated below.
For Client:
Community Shores Bank, a Michigan Banking Corporation
In Formation by Community Shores Bank Corporation
[Name of Client]
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Senior Vice President
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Date: 10-7-98
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For Fiserv:
FISERV SOLUTIONS, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: Senior Vice President
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Date: 10-7-98
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Exhibit A
Account Processing Services
Client agrees with Fiserv as follows:
1. Services. Fiserv will provide Client the Account Processing Services
("Account Processing Services") specified in Exhibit A - 1.
2. Fees. Client shall pay Fiserv fees and other charges for Account
Processing Services specified in Exhibit A - 2.
3. Annual Histories. Fiserv currently maintains annual histories, where
applicable, for its clients. These histories can be used to reconstruct Client
Files in an emergency. However, in order to permit prompt and accurate
reconstruction of accounts, Client agrees to retain at all times and make
available to Fiserv upon request the most recent data printout(s) received from
Fiserv, together with copies or other accurate and retrievable records of all
transactions to be reflected on the next consecutive printout(s).
4. Hours of Operation. Account Processing Services will be available for
use by Client during standard Fiserv business hours, excluding holidays, as
specified in Exhibit A - 3. Account Processing Services may be available during
additional hours, during which time Client may use Services at its option and
subject to additional charges.
5. Protection of Data. (a) For the purpose of compliance with applicable
government regulations, Fiserv has an operations backup center, for which Client
agrees to pay the charges indicated in Exhibit A - 2. Copies of transaction
files are maintained by Fiserv off premises in secured vaults.
(b) Fiserv provides "on-line" security via utilization of leased lines
with poll/select protocol.
(c) Upon Client providing access to Client Files through Client's
customers' personal computers or voice response system, Client agrees to
indemnify and hold harmless Fiserv, its officers, directors, employees, and
affiliates against any claims or actions arising out of such access to Client
Files or any Fiserv files (including the files of other Fiserv clients) or the
Fiserv System or other Fiserv systems.
6. Processing Priority. Fiserv does not subscribe to any processing
priority; all users receive equal processing consideration.
7. Forms and Supplies. Client assumes and will pay the charges for all
customized forms, supplies, and delivery charges.
8. Regulatory Supervision. By entering into this Agreement, Fiserv agrees
that the Office of Thrift Supervision, FDIC, or other regulatory agencies having
authority over Client's operations shall have the authority and responsibility
provided to the regulatory agencies pursuant to the Bank Service Corporation
Act, 12 U.S.C. 1867(C) relating to services performed by contract or otherwise.
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Exhibit A - 1
Account Processing Services
Fiserv will provide Client with the following Account Processing Services:
Fiserv shall provide data processing services for the Client with software
modules selected by the Client from Information Technology, Inc. This package
includes:
Customer Information System
Demand Deposit Accounts
Savings
Club Accounts
Loans - all types
Certificates of Deposit
General Ledger
ACH (receiving) processing
Express Exception Item Module
Online Loans Collection System
Remote Print
Optical Laser Retrieval ** (Report Archive only)
ATM Processing (Depending upon ATM Switch Selected)
Currency Transaction System
Retirement Accounting
Automated Collateral Insurance Module
Automated Credit Reporting
Premier Reference System
Loan Origination Interface
Interactive Deposit Interface
Safe Deposit Accounting (CIS Application)
Smart Reports (ADHOC Reports) (10 per month)
Premier II
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Exhibit A - 2
Account Processing Services Fees
Fiserv will provide Client the following Account Processing Services at the fees
and prices indicated:
Client agrees to pay Fiserv for the services rendered by Fiserv as identified in
Exhibit A-1 pursuant to this agreement and in accordance with the rates outlined
in this Schedule.
1. Charges for Services
A. Monthly Processing Fees are based upon the actual number of open and
closed application accounts.
B. The monthly processing fee for services as described in Exhibit A-1 will
be as follows:
Number of Open and Closed
-------------------------
Loan and Deposit Accounts Cost Per Account
------------------------- ----------------
0 - 4,000 $.85
4,001 - 8,000 $.80
8,001 - 12,000 $.75
C. The minimum monthly fees for services as described in Exhibit A-1 are as
follows:
Month 1 - 6 $1,000
Months 7 - 12 $2,000
Months 13 - 24 $2,500
Months 25 & beyond $3,000
D. ACH Charges - $.05 per transaction (receiving)
- $25.00 per file (originating)
E. ATM Charges - $.05 per Transaction ($500/month minimum)
F. Smart Reports in excess of amount stated in Exhibit A-1 - $50.00 each
G. PCBanc and ExecuBanc require the installation of dedicated
communication servers to provide a secure path to the host system for
your customers. This is not included in the above monthly cost.
H. There will be no price increases for the first two years of service.
Any price increases beyond year two will be limited to 5% or CPI
whichever is less.
I. Third Party Systems
1) Unless specifically provided, for all costs incurred for all third
party services, such as, but not limited to, forms, supplies,
report delivery, interface fees, and PC software and maintenance
fees, shall be in addition to the Monthly Processing Fees and
shall be paid by Client, either directly to respective third party
service provider(s) or via reimbursement to Fiserv for those third
party services billed to Fiserv on Client's behalf.
2) Fiserv has working relationships and existing interfaces with
various third party vendors for Voice Response Systems, Loan
Origination Systems and other systems. Should your bank choose a
third party system, there may be additional charges from the third
party vendor for programming, re-programming, modification,
scripting, installation, training, hardware and other items.
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Exhibit A - 2
2. Charges for Implementation of System
A. Product Definition
Deposits $900/day 5 days $4,500
Loans $900/day 5 days 4,500
General Ledger $900/day 2 day 1,800
Product Specifications
Review/Revision $900/day 5 days 4,500
* Post-opening $900/day 5 days/2 from Fiserv 9,000
onsite
-----------------------------------------------------------------------------------
Total Fiserv Costs $24,300
* Post opening support will be billed on an as used basis.
B. Travel and out-of-pocket expenses of bank employees and Fiserv personnel
will be the responsibility of the Client.
3. Training Charges
A. FIS1 (Required) $350 per person One Week - Fiserv/Atlanta
FIS2 (Optional) $350 per person One Week - Fiserv/Atlanta
Preconversion training/Q&A $3,500 onsite 5 days optional
B. Training for additional bank personnel at Fiserv/Atlanta will be $350.00
per attendee, per week
4. Data Communication Charges
A. CONFIGURATION PROVIDED:
Office Location NPA-NXX LAN PCs
Muskegon, MI 616-739 18
1 Location 18 Workstations
Wide Area Network costs(*1) for this client, based on the above
configuration will be:
FRAME RELAY SERVICE
QTY Description of Service Units $ Monthly One Time
--- ---------------------- ------- ------- --------
1 256K Port - Main Office $290.88 $290.88
0 56K Port - Branch(s) 290.88 0.00
1 128K PVC (Main Office to Fiserv) 20.16 20.16
0 48K PVC (Branch(s) to Main Office WAN) 27.36 0.00
0 32K PVC (Branch(s) to Fiserv) 20.16 0.00
1 Fiserv ISDN Service per Branch 150.00 150.00
1 Local Telco ISDN BRI Service (*3) 30.00 30.00 $250.00
0 Telco Installation 1,025.00 0.00
1 Telco Installation 550.00 550.00
NETWORK SUPPORT SERVICES:
18 Terminal Stations $20.00 $360.00 $2,500.00
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Exhibit A - 2
DISASTER RECOVERY:
1 Main Office (Required) $150.00 $150.00
0 Branch Office (Additional Offices are 100.00 0.00
Optional)
EQUIPMENT:
0 Cisco 2501 Router $2,820.00 $0.00
0 FT100 FT-1 CSU 1,620.00 0.00
0 GDC 500A 56K CSU 750.00 0.00
1 Cisco 1602 Router (includes DSU) 2,995.00 2,995.00
1 Motorola BitSurfer II 295.00 295.00
1 Router Installation 400.00 400.00
0 FT100 Installation 295.00 0.00
1 BitSurfer II Installation 295.00 295.00
0 GDC 500A Installation 200.00 0.00
0 OLF 32 node Gateway (*2) 1,695.00 0.00
SOFTWARE
18 ITI Connect $495.00 $8,910.00
EQUIPMENT MAINTENANCE:
1 #1602 Router $23 $23
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TOTALS $1,024.00 $16,195.00
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NOTES:
1. ISDN will only restore communication to Fiserv not the Branch to
Branch connections.
2. All terminal stations must be LAN connected
3. Cost estimates includes hot site equipment and connections. Does not
include Gateways.
4. LAN Hubs, servers and inside wiring not included.
5. Equipment maintenance 5 x 10 onsite coverage with 4 hour average
response time.
6. Cost quoted for Attachmate open transport software are estimates
A. Software may already be owned by bank.
B. Software may be obtained at a lower cost.
7. All costs quoted above are estimates. A final cost will be
presented after a comprehensive onsite visit has been conducted.
8. Any changes in above configuration may alter cost.
B. Additional Information
1) The addition of any of the four systems listed below may alter the
Data Communication configuration shown in 4A above and therefore
the monthly and/or one time cost.
a. Voice Response
b. Execubanc
c. PCBanc
d. ATM
2) Third Party charges for frame relay service and maintenance are
subject to change.
3) Third Party interfaces may require DCA terminal emulation.
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Exhibit A - 2
5. Depcon Remote Printing System
QTY. DESCRIPTION EACH
---- ----------- ----
1 Depcon Software $ 2,750
0 Xxxxxx Xxxxxxxxxxxx, Xxxxxx Xxxxxxx 0000, Xxxxxxx 166, 1,600
32 MB RAM, 1.2 GB Hard Drive, PCI VGA, Ethernet NIC, 14" Viewsonic
SVGA Monitor, Keyboard, Mouse, Surge Strip
1 PC Anywhere for Windows 157
1 US Robotics 33.6 External Modem including Cables 195
1 Hewlett Packard HP5SI Laser Printer, 24 ppm, 4MB RAM, 4,485
Duplex Accessory, 2000 sheet input tray (one year on-site warranty)
1 On-site Installation, Configuration & One Day User Training 3,400
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Subtotal $12,587
Estimated Total Investment $12,587
Annual Maintenance Estimate
Software:
A. Year One - No Charge
B. Years 2 - 5, 20% per Year
Hardware:
A. 90 Days - No Charge
B. After 90 days, 14% per Year
C.Hardware may be purchased separately from an approved vendor
and must meet the required specifications. Hardware
configuration must be approved by Fiserv prior to purchase.
6. Director - Cold Retrieval System
The Director System is only available through Unisys and Community
Shores Bank agrees to purchase the system from Unisys.
Description Total Price
----------- -----------
Hardware
PC's/Server $12,770
Network Operating Software $ 3,669
LAN Components $ 1,399
Ancilliary Components $ 1,020
Application Software $25,927
Installation Services $ 2,502
Archival Storage Devices $ 1,273
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$48,560
Annual Maintenance Estimate
Software:
A. Year One - No Charge
B. Years 2 - 5, 20% per Year
Hardware:
A. 90 Days - No Charge
B. After 90 days, 14% per Year
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Exhibit A - 2
7. Additional Optional Systems
A. Voice Response System (TeleBanc)
Telebanc Controller/Server (6 telephone lines): $29,900
TCP/IP Interface 4,800
FAX Interface 2,800
33 MB RAM Upgrade 375
Ethernet Adapter 250
On Site Installation 1,500
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TOTAL $39,625
* Note: All prices listed in Item B above are subject to change.
Monthly Processing Fee
$.05 per transaction
$.03 per account, per month ($250 monthly minimum)
* Note: Monthly processing charges listed above will remain
fixed for up to 12 months after the bank opening.
Annual Maintenance Estimate
Hardware:
A. 90 Days - No Charge
B. After 90 days, 14% Annual
Software:
A. Year One - No Charge
B. Years 2 - 5, 20% per Year
B. Execubanc - Corporate Cash Management Systems
1. One Time Charges
8 Line Dedicated Server
(4 Line Server also available) $16,000
EBB Communication Server Interface 1,466
ITI Connect3 Software (server) 195
ITI Connect3 Software (admin workstation) 195
Installation & Training (5 Days @ $900 each) 4,500
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Total One Time Fees $22,356
* Note: All prices listed in Item C above are subject to
change.
2. Monthly Processing Fees
Price - $.02 per open and closed loan and deposit account
(monthly minimum $250)
* Note: Monthly processing fees listed above will remain fixed
for 12 months after the bank opening.
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Exhibit A - 2
3. Annual Maintenance Estimate
Software:
A. Year One - No Charge
B. Years 2 - 5, 20% per Year
Hardware:
A. 90 Days - No Charge
B. After 90 days, 14% per Year
C. Premier Prime - Data Warehouse System (All prices subject to
changes)
1. One Time Charges
Prime Database Server Software
Prime Input Facility (Per Server) $1,466
ITI Connect (Per Server) $ 195
Prime Workstations Software
Impromptu Administrator (at least one per server) $ 895
Impromptu User (per workstation) $ 695
Annual Maintenance Estimate
A. Year One - No Charge
B. Years 2 - 5, 20% per Year
Hardware/Software Requirements
Database server running Microsoft Windows NT, Advanced Server
SQL database software
Workstation(s) running Microsoft Windows
Installation & Training
3 - 5 days on-site @ $900 per day, plus travel expenses
2. Monthly Processing Fees
$.02 per open & closed loan and deposit accounts (monthly
minimum $250)
D. Premier II Teller/Platform System
1. Each Teller Station Must run Windows 95 or NT
2. One NT SQL server must be installed at the Bank for compile
of system releases
3. License Fees: $1,000 per user
Up to 50 Users
4. Script File Object Mover $3,000
5. Signature management $100 additional per user $100 per user
6. ITI Connect Software $195 per user
7. Annual Maintenance
A. Year One - No Charge
B. Year 2 - 5 , 20% of Software License
8. Installation and Training - To be Determined.
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Exhibit A - 2
8. DECONVERSION CHARGES
Fiserv will charge deconversion fees in accordance with the following
schedule.
DECONVERSION TASK COST BASIS
----------------- ----------
TEST FILES .0175/ACCT/$200MIN/PER TAPE
LIVE DECONVERSION FILES .0175/ACCT/$200MIN/PER TAPE
DECONV REPORTS - TEST $300 PER FILE
DECONV REPORTS - LIVE $300 PER FILE
SV MONTH-TO DATE-HISTORY .01/ACCT/$100 MIN.
SV MTD HISTORY COPIES $50 PER COPY
SV ANNUAL HISTORY REPORTS .01/ACCT/$100 MIN.
SV TRIAL BALANCE REPORT .01/ACCT/$100 MIN.
SV TRIAL COPIES $50 PER COPY
SV STATEMENTS 3 HRS. PROG.+.05/ACCT ($75 MIN)
SV NEW ACCOUNT REPORT $75 + $50 PER COPY
SV CLOSED ACCOUNT REPORT $75 + $50 PER COPY
SV DORMANT ACCOUNT REPORT $75 + $50 PER COPY
SV ACCRUALS UPDATED ADS003 (MASS CHANGE) CHARGE OF $400 PER PASS
RRM SUMMARY STATEMENTS .10/ACCT, $100 MIN.
RRM STATEMENTS COPIES $75 + $50 PER COPY
RRM PLAN TRIAL .01/ACCT/$100 MIN.
DDA TRIAL BALANCE REPORT $50 PER COPY
DDA STATEMENTS 3 HRS PROG + .05/ACCT ($75 MIN)
DDA SERVICE CHARGES WAIVED 3 HRS. PROGRAMMING
LAS MONTH TO DATE HISTORY .01/ACCT/$100 MIN.
LAS MTD HISTORY COPIES $50 PER COPY
LAS ANNUAL HISTORY REPORT .01/ACCT/$100 MIN.
LAS ML ANNUAL HISTORY COPIES $50 PER COPY
LAS TRIAL BALANCE REPORT .01/ACCT/$100 MIN.
LAS TRIAL COPIES $50 PER COPY
LAS HISTORY STATEMENTS .15/ACCT/$75 MIN.
LAS STATEMENTS COPIES $50 PER COPY
LAS ESCROW POSTING 6 HRS PROG. + $50/COPY
LAS ACCRUED INTEREST REPORT $75 + $50 PER COPY
INVESTOR CYCLE REPORTS ADS003 CHARGE + $50/COPY
FMS MONTH TO DATE HISTORY $150 CHARGE + $50/COPY
FMS CHART OF ACCOUNTS $50 PER COPY
CIS NAME AND ADDRESS REPORT .01/ACCT/$100 MIN.
RELEASE AND POST WAREHOUSED ACH 4 HRS. PROG. + $100 PER RUN
CLOSE SAV ACCOUNTS 15 HOURS PROGRAMMING
CLOSE RRM ACCOUNTS 15 HOURS PROGRAMMING
PURGE EFT ACCOUNTS 9 HOURS PROGRAMMING
CLOSE DDA ACCOUNTS 15 HOURS PROGRAMMING
CLOS4E LAS ACCOUNTS 15 HOURS PROGRAMMING
PURGE CIS FILES 15 HOURS PROGRAMMING
PURGE FMS ACCOUNTS 15 HOURS PROGRAMMING
DEBIT CARD FILES .01/ACCT/$100 MIN.
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Exhibit A - 2
DEBIT CARD TRIAL BALANCE $50 PER COPY
DATACOMM REMOVED $110/HOUR
PROJECT COORDINATION $110/HOUR
OPERATIONS/CONVERSIONS $110/HOUR
CPU HOUR $200/HOUR
PROGRAMMING PER HOUR $65/HOUR
MAN-HOURS
Test Files 1 hour per file
Live Files 1 hour per file
Cut-off processing 5 hours per application
Close accounts 5 hours per application
Purge Files 5 hours per application
Deconversion jobflows, scheduling Actual operations time to remove
Project Management Actual P.M. time
Datacomm disconnected Actual time to remove datacomm
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Exhibit A - 3
Hours of Operation
The Fiserv Account Processing Center will be in operation for on-line
Account Processing Services in accordance with the following:
Monday 7:00 A.M. - 8:00 P.M.
Tuesday 7:00 A.M. - 8:00 P.M.
Wednesday 7:00 A.M. - 8:00 P.M.
Thursday 7:00 A.M. - 8:00 P.M.
Friday 7:00 A.M. - 8:00 P.M.
Saturday 7:00 A.M. - 5:00 P.M.
All times stated are in accordance with prevailing local times for the
Fiserv Account Processing Center. The Fiserv Account Processing Center will
observe national holidays, and will be closed for on-line operations.
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Exhibit A - 4
Performance Standards
(a) Fiserv's standard for on-line performance ("On-Line Performance") shall be
on-line availability of the computer (exclusive of telecommunications and
terminals) for processing 98% of the time that it is scheduled to be so
available over a three (3) month period (the "Measurement Period"). The
Measurement Period shall be defined as calendar quarters during the term of this
Agreement. Actual on-line performance will be calculated monthly by comparing
(I) the number of hours which the computer, but not the terminals or
telecommunications, was scheduled to be operational on an on-line basis
exclusive of any emergency maintenance other than preventive maintenance and
scheduled maintenance beyond the control of Fiserv, with (ii) the number of
hours, or a portion thereof, it was actually operational on an on-line basis
during the Measurement Period.
(1) Definitions:
(i) "On-line Servicing hours" shall mean the total elapsed "Service
Time" wall clock time in which the computers are available for on-line
service to all clients.
(ii) "Service Time" shall mean:
Monday thru Thursday 7:00 AM thru 8:00 PM CST Time
Friday 7:00 AM thru 8:00 PM CST Time
Saturday 7:00 AM thru 5:00 PM CST Time
Exclusive of: New Year's Day, Labor Day, Memorial Day, Thanksgiving,
Independence Day and Christmas.
(2) Measurements: Fiserv's Data Center will
log and retain a record of downtime maintaining appropriate analytical
reports. Downtime reports will be tabulated monthly and provided at
Client's request. Client agrees to provide written acknowledgment of each
report received.
(3) Exclusions: Downtime due to acts or omissions of Client or third
parties, not subject to control or direction by Fiserv; hardware
malfunction or failure; and failure to meet the standard for performance
for reasons beyond Fiserv's control.
(b) Fiserv's standard performance for Delivery of scheduled Critical Daily
reports shall be that, over a "Measurement Period", 95% of all Critical Daily
Reports shall be delivered on time without significant errors. Performance will
be calculated by comparing (I) the total number of Critical Daily Reports to be
provided by Fiserv with (ii) the number of Critical Daily Reports that were
delivered by Fiserv on time without significant error. Fiserv shall advise
Client of the deadlines by which Client must provide data to Fiserv for
processing and the contents and format of such data. A detailed listing of all
Critical Daily Reports shall be incorporated into the implementation plan.
(1) Definitions:
(i) "Critical Daily Reports" shall mean priority group reports which
Fiserv and Client have mutually agreed in writing during the conversion
planning process and are necessary to properly account for the previous
day's activity and properly notify Client of overdraft, NSF, or return
items.
(ii) "Deliver" and "Delivery" of reports shall mean that,
depending on the method selected by Fiserv, the report is printed in
hard copy where printing is performed in-house by Fiserv; the report
data is ready for remote printing by Fiserv, to the Client site; or the
report data is ready for transmission by Fiserv to Client over the data
lines designated for that purpose.
(iii) "On Time" shall mean 7:00 AM CST time at Client's designated
central print site and is subject to change as may be mutually agreed
upon by both parties.
(iv) "Significant error" is one which impairs Client's ability to
properly account for the previous days activity and/or properly account
for overdraft, NSF or return items.
(2) Measurements: Client shall notify Fiserv on a daily basis of any late
Delivery, non-Delivery and significant errors and shall identify all
claimed errors for review. On a monthly basis, Fiserv and Client shall
compile a written performance analysis, if requested by either party.
(3) Exclusions: Special request of special cycle items; reports that are
Delivered late, not Delivered or contain errors due to acts or omissions of
Client or third parties, not subject to control or direction by Fiserv;
hardware malfunction or failure; and failure to meet the standard for
performance due to reasons beyond Fiserv's control.
(c) Fiserv's standard for response time performance ("Response Time
Performance") shall be the average total time taken for the central processor to
receive a transaction from the Data Center telecommunications controller,
process that transaction, and return the answer to such advice. Such average
total response time, as determined by Fiserv from measurements taken over a
three (3) month period ("the measurement period") shall be two (2) seconds or
less.
(1) Definitions: "Transaction" shall mean basic deposit, withdrawal, and
single application inquiry transactions.
(2) Measurements: Fiserv's Data Center will log and retain a record of
response time maintaining appropriate analytical reports. Response time
reports will be tabulated monthly and provided to Client at Client's
request. Client agrees to provide written acknowledgment of each report
received.
(3) Exclusions: Downtime due to acts of omissions of the Client or third
parties, not subject to control or
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direction by Fiserv; hardware malfunction or failure to meet the standard
performance for reasons beyond Fiserv's control.
(d) Exclusive Remedy
In the event that Fiserv's performance is less than the
percentage/standard specified in "Service Performance Standards" above
and such failure is not the result of a Client error or omission, or
of any other event specified in the applicable "EXCLUSIONS", Client
shall notify Fiserv immediately in writing specifying the Service
Performance Standard(s) not met and the nature of the deficiency.
Within thirty (30) days of receipt of the foregoing notice Fiserv
shall establish an action plan to meet the Performance Standard(s) and
shall communicate same to Client. Upon expiration of the thirty (30)
day period Fiserv shall have a period of sixty (60) days to measure
its performance and to bring its performance to the
percentage/standard specified in the relevant Service Performance
Standard, and Fiserv shall advise Client of its performance at the end
of said period. Should Fiserv's performance be below the Standard at
that time Client may terminate this Agreement by giving Fiserv written
notice of termination. Client may also terminate this Agreement if
Fiserv's performance for the same standard is below that relevant
service performance standard for more than two (2) measurement periods
in any twelve (12) month period or for more than five measurement
periods during the term of this Agreement by giving Fiserv written
notice of termination. Termination shall be without penalty or any
charge to Client other than charges for service fees incurred prior to
the effective date of termination.
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