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EXHIBIT 10.14
SERVICE AGREEMENT
BETWEEN
FIRST COMMERCIAL BANK AND FIRSTSERV, INC.
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ATTACHMENT 1
TERMS AND CONDITIONS
I. SERVICES
(A) FirstServ, Inc. agrees to furnish First Commercial Bank data processing
and item processing services selected by First Commercial Bank from the
Product and Price Schedule (Attachment 2). Additional services may be
selected upon prior written notice to FirstServ, Inc. at FirstServ,
Inc.'s then current list price by executing an amended Summary Page.
(B) FirstServ, Inc. will provide conversion and training services for the
fees specified from the Product and Price Schedule (Attachment 2).
Classroom training in the use and operation of the system for the
number of First Commercial Bank personnel mutually agreed upon in the
conversion planning process will be provided at a training facility
mutually agreed upon. Conversion services are those activities designed
to transfer the processing of First Commercial Bank's data from it's
present processing company to FirstServ, Inc..
(C) FirstServ, Inc. will also provide Network Support Service consisting of
communication line monitoring and diagnostic equipment and support
personnel to discover, diagnose, repair or report line problems to the
appropriate telephone company. The fee for this service is also listed
from the Product and Price Schedule (Attachment 2).
(D) FirstServ, Inc. shall upon request act as First Commercial Bank's
designated representative to arrange for the purchase, and installation
of data lines necessary to access the FirstServ, Inc. system. Where
requested, additional dial-up lines and equipment to be utilized as a
backup to the regular data lines may also be ordered. FirstServ, Inc.
shall xxxx First Commercial Bank for the actual charges incurred for
the data lines and for the maintenance of the modems and other
interface devices.
II. TERM
The term of this Agreement shall be twelve (12) months commencing on
December 8, 1995. Upon expiration, the Agreement will automatically renew
for successive terms of twelve (12) months unless either party shall have
provided written notice to the other at least one-hundred eighty (180) days
prior to expiration, of the then current term, of its intent not to renew.
XXX.XXXXXXXX/FIRMWARE
Unmodified third party software or firmware ("Software") may be supplied as
part of the Agreement. All such Software shall be provided subject to
Software License Agreements.
IV. PRICE AND PAYMENT
(A) Fees for FirstServ, Inc.'s services are set forth from the Product and
Price Schedule (Attachment 2), including where applicable minimum
monthly charges and payment schedules for onetime fees.
(B) Standard Fees shall be invoiced no later than the fifteenth (15th) of
each month for the then current month.
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(C) The Base Service Charge listed from the Product and Price Schedule
(Attachment 2) shall not change more than once a year and then only
upon six (6) months' prior written notice.
(D) This above limitation shall not apply to Pass-thru expenses. A
Pass-thru Expense is a charge for goods or services by FirstServ, Inc.
on First Commercial Bank's behalf which are to be billed to First
Commercial Bank without xxxx-up.
(E) The fees listed from the Product and Price Schedule (Attachment 2) do
not include and First Commercial Bank is responsible for furnishing
transportation or transmission of information between FirstServ, Inc.'s
data center, First Commercial Bank's site and any applicable clearing
house, regulatory agency or Federal Reserve Bank. Where First
Commercial Bank has elected to have FirstServ, Inc. provide
Telecommunication Services, the price for the Services will be provided
and billed as a Pass-thru expense.
(F) Network Support Service Fees and Local Network Fees are based upon
services rendered from FirstServ, Inc.'s premises. Off-premise support
will be provided upon First Commercial Bank's request on an as
available basis at FirstServ, Inc. then current charges for time and
materials, plus reasonable travel and living expenses.
V. CLIENT OBLIGATIONS
(A) First Commercial Bank shall be solely responsible for the input,
transmission or delivery of all information and data required by
FirstServ, Inc. to perform the services except where First Commercial
Bank has retained FirstServ, Inc. to handle such responsibilities on
its behalf. The data shall be provided in a format and manner approved
by FirstServ, Inc.. First Commercial Bank will provide at its own
expense or procure from FirstServ, Inc. all equipment, computer
software, communication lines and interface devices required to access
the FirstServ, Inc. System. If First Commercial Bank has elected to
provide such items itself, FirstServ, Inc. shall provide First
Commercial Bank with a list of compatible equipment and software.
(B) First Commercial Bank shall designate appropriate First Commercial Bank
personnel for training in the use of the FirstServ, Inc. System, shall
allow FirstServ, Inc. access to First Commercial Bank's site during
normal business hours for conversion and shall cooperate with
FirstServ, Inc. personnel in the conversion and implementation of the
services.
(C) First Commercial Bank shall comply with any operating instructions on
the use of the FirstServ, Inc. system provided by FirstServ, Inc.,
shall review all reports furnished by FirstServ, Inc. for accuracy and
shall work with FirstServ, Inc. to reconcile any out of balance
conditions. First Commercial Bank shall determine and be responsible
for the authenticity and accuracy of all information and data submitted
to FirstServ, Inc.
V. CLIENT OBLIGATIONS - CONTINUED
(D) First Commercial Bank shall furnish, or if FirstServ, Inc. agrees to so
furnish, reimburse FirstServ, Inc. for courier services applicable to
the services requested.
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VI. GENERAL ADMINISTRATION
FirstServ, Inc. is continually reviewing and modifying the FirstServ, Inc.
system to improve service and to comply with federal government regulations
applicable to the data utilized in providing services to First Commercial
Bank. FirstServ, Inc. reserves the right to make changes in the service,
including, but not limited to operating procedures, security procedures, the
type of equipment resident at and the location of FirstServ, Inc.'s data
center. FirstServ, Inc. will provide First Commercial Bank under this
contract as follows: at least sixty (60) days prior written notice of
changes in procedures or reporting and at least six (6) months prior written
notice of changes in service costs.
VII.CLIENT CONFIDENTIAL INFORMATION
(A) FirstServ, Inc. shall treat all information and data relat- ing to
First Commercial Bank business provided to FirstServ, Inc. by First
Commercial Bank, or information relating to First Commercial Bank's
Customers, as confidential and shall safe-guard First Commercial Bank's
information with the same degree of care used to protect FirstServ,
Inc.'s confidential information. FirstServ, Inc. and First Commercial
Bank agree that master and transaction data files are owned by and
constitute property of First Commercial Bank. First Commercial Bank
data and records shall be subject to regulation and examination by
State and Federal supervisory agencies to the same extent as if such
information were on First Commercial Bank's premises. FirstServ, Inc.
obligations under this Section VII shall survive the termination or
expiration of this Agreement.
(B) FirstServ, Inc. shall maintain adequate backup procedures including
storage of duplicate record files as necessary to reproduce First
Commercial Bank's records and data. In the event of a service
disruption due to reasons beyond FirstServ, Inc.'s control, FirstServ,
Inc. shall use diligent efforts to mitigate the effects of such an
occurrence.
VIII.FIRSTSERV, INC. CONFIDENTIAL INFORMATION
(A) First Commercial Bank shall not use or disclose to any third persons
any confidential information concerning FirstServ, Inc.. FirstServ,
Inc. confidential information is that which relates to FirstServ,
Inc.'s software, research, development, trade secrets or business
affairs including, but not limited to, the terms and conditions of this
Agreement but does not include information in the public domain through
no fault of First Commercial Bank. First Commercial Bank obligations
under this Section VIII shall survive the termination or expiration of
this Agreement.
(B) FirstServ, Inc.'s system contains information and computer software
which is proprietary and confidential information of FirstServ, Inc.,
its suppliers and licensers. First Commercial Bank agrees not to
attempt to circumvent the devices employed by FirstServ, Inc. to
prevent unauthorized access to the FirstServ, Inc.'s System.
IX. WARRANTIES
FirstServ, Inc. will accurately process First Commercial Bank's work
provided that First Commercial Bank supplies accurate data and follows the
procedures described in FirstServ, Inc.'s User Manuals, notices and advises.
FirstServ, Inc. personnel will exercise due care in the
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processing of First Commercial Bank's work. In the event of an error caused
by FirstServ, Inc.'s personnel, programs or equipment, FirstServ, Inc. shall
correct the data and/or reprocess the affected report at no additional cost
to First Commercial Bank.
X. LIMITATION OF LIABILITY
IN NO EVENT SHALL FIRSTSERV, INC. BE LIABLE FOR LOSS OF GOODWILL, OR FOR
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM First
Commercial Bank's USE OF FIRSTSERV, INC.'S SERVICES, OR FIRSTSERV, INC.'S
SUPPLY OF EQUIPMENT OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN
TORT OR IN CONTRACT. FIRSTSERV, INC.'S AGGREGATE LIABILITY FOR ANY AND ALL
CAUSES OF ACTION RELATING TO SERVICES SHALL BE LIMITED TO THE TOTAL FEES
PAID BY First Commercial Bank TO FIRSTSERV, INC. IN THE THREE (3) MONTH
PERIOD PRECEDING THE DATE THE CLAIM ACCRUED. FIRSTSERV, INC.'S AGGREGATE
LIABILITY FOR A DEFAULT RELATING TO EQUIPMENT OR SOFTWARE SHALL BE LIMITED
TO THE AMOUNT PAID FOR THE EQUIPMENT OR SOFTWARE.
XI. PERFORMANCE STANDARDS
(A) ON-LINE AVAILABILITY - FirstServ, Inc.'s standard of performance shall
be on-line availability of the system 98% of the time that it is
scheduled to be so available over a three month period (the
"Measurement Period"). Actual on-line performance will be cal- culated
monthly by comparing the number of hours which the system was scheduled
to be operational on an on-line basis with the number of hours, or a
portion thereof, it was actually operational on an on-line basis.
Downtime may be caused by operator error, hardware malfunction or
failure, or environmental failures such as loss of power or air
conditioning. Downtime caused by reasons beyond FirstServ, Inc.'s
control should not be considered in the statistics.
(B) REPORT AVAILABILITY - FirstServ, Inc.'s standard of performance for
report availability shall be that, over a three (3) month period,
ninety-five percent (95%) of all Critical Daily Reports shall be
available for remote printing on time without significant errors. A
Critical Daily Report shall mean priority group reports which
FirstServ, Inc. and First Commercial Bank have mutually agreed in
writing are necessary to properly account for the previous day's
activity and properly notify First Commercial Bank of overdraft, NSF or
return items. A Significant error is one which impairs First Commercial
Bank's ability to properly account for the previous days activity
and/or properly account for overdraft, NSF or return items. Actual
performance will be calculated monthly by comparing the total number of
First Commercial Bank reports scheduled to be available from FirstServ,
Inc. to the number of reports which were available on time and without
error.
(C) EXCLUSIVE REMEDY - In the event that FirstServ, Inc.'s perfor- xxxxx
fails to meet the standards listed above and such failure is not the
result of a First Commercial Bank error or omission, First Commercial
Bank's sole and exclusive remedy for such default shall be the right to
terminate this Agreement in accordance with the provisions of this
paragraph. In the event that FirstServ, Inc. fails to achieve any
Performance Standards, alone or in combination, for the prescribed
measurement period, First Commercial Bank shall notify FirstServ, Inc.
of its intent to terminate this agreement if FirstServ, Inc. fails to
restore performance to the committed levels. FirstServ, Inc. shall
advise First Commercial Bank promptly upon correction of the system
deficiencies (in no event shall corrective action exceed sixty (60)
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days from the notice date) and shall begin an additional measurement
period. Should FirstServ, Inc. fail to achieve the required Performance
Standards during the remeasurement period, First Commercial Bank may
terminate this Agreement and FirstServ, Inc. shall cooperate with First
Commercial Bank to achieve an orderly transition to First Commercial
Bank's replacement processing system. First Commercial Bank may also
terminate this Agreement if FirstServ, Inc.'s performance for the same
standard is below the relevant performance standard for more than two
(2) measurement periods in any consecutive twelve (12) months or for
more than five (5) measurement periods during the term of this
agreement. During the period of transition, First Commercial Bank shall
pay only such charges as are incurred for monthly fees until the date
of deconversion. FirstServ, Inc. shall not charge First Commercial Bank
for services relating to First Commercial Bank's deconversion.
XII.DISASTER RECOVERY
(A) A Disaster shall mean any unplanned interruption of the operations of
or inaccessibility to the FirstServ, Inc. data center which appears in
FirstServ, Inc.'s reasonable judgement to require relocation of
processing to an alternative site. FirstServ, Inc. shall notify First
Commercial Bank as soon as possible after it deems a service outage to
be a Disaster. FirstServ, Inc. shall move the processing of First
Commercial Bank's standard on-line services to an alternative
processing center as expeditiously as possible. First Commercial Bank
shall maintain adequate records of all transactions during the period
of service interruption and shall have personnel available to assist
First Serv, Inc in implementing the switchover to the alternative
processing site. During a Disaster, optional or on-request services
shall be provided by FirstServ, Inc. only to the extent that there is
adequate capacity at the alternate center and only after stabilizing
the provision of base on-line services.
(B) FirstServ, Inc. shall work with First Commercial Bank to establish a
plan for alternative date communications in the event of a Disaster.
First Commercial Bank shall be responsible for furnishing any
additional communications equipment and data lines required under the
adopted plan.
(C) FirstServ, Inc shall test its Disaster Recovery Services Plan by
conducting one annual test. First Commercial Bank agrees to participate
in and assist FirstServ, Inc. with such testing. Test results will be
made available to First Commercial Bank's regulators, internal and
external auditors, and (upon request) to First Commercial Bank's
insurance underwriters.
(D) First Commercial Bank understands and agrees that the FirstServ, Inc.
Disaster Recovery Plan is designed to minimize but not eliminate risks
associated with a Disaster affecting FirstServ, Inc.'s data center.
FirstServ, Inc. does not warrant that service will be uninterrupted or
error free in the event of a Disaster. First Commercial Bank maintains
responsibility for adopting a disaster recovery plan relating to
disasters affecting First Commercial Bank's facilities and for securing
business interruption insurance or other insurance as necessary to
properly protect First Commercial Bank's revenues in the event of a
disaster.
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XIII.TERMINATION OR EXPIRATION
(A) In the event that First Commercial Bank is thirty (30) days in arrears
in making any payment required, or in the event of any other material
default by either FirstServ, Inc. or First Commercial Bank in the
performance of their obligations, the affected party shall have the
right to give written notice to the other of the default and its intent
to terminate this Agreement stating with reasonable particularity the
nature of the claimed default. This Agreement shall terminate if the
default has not been cured within a reasonable time with a minimum
being thirty (30) days from the effective date of the notice.
(B) Upon the expiration of this Agreement, or its termination due to
FirstServ, Inc.'s business termination, FirstServ, Inc. shall furnish
to First Commercial Bank such copies of First Commercial Bank's data
files as First Commercial Bank may request in machine readable format
form along with such other information and assistance as or is
reasonable and customary to enable First Commercial Bank to deconvert
from the FirstServ, Inc. system. First Commercial Bank shall reimburse
FirstServ, Inc. for the production of data records and other services
at FirstServ, Inc.'s current fees for such services.
XXX.XXXXXXXXX
FirstServ, Inc. carries Comprehensive General Liability insurance with
primary limits of two million dollars, Commercial Crime insurance
covering Employee Dishonesty in the amount of fifteen million dollars,
all-risk replacement cost coverage on all equip- ment used at
FirstServ, Inc.'s data center and Workers Compensa- tion coverage on
FirstServ, Inc. employees wherever located in the United States.
XV. GENERAL
(A) This Agreement is binding upon the parties and their respective
successors and permitted assigns. Neither party may assign this
Agreement in whole or in part without the consent of First Commercial
Bank and/or FirstServ, Inc., and provided further that FirstServ, Inc.
may subcontract any or all of the services to be performed under this
Agreement. Any such subcontractors shall be required to comply with all
of the applicable terms and conditions of this Agreement.
(B) The parties agree that, in connection with the performance of their
obligations hereunder, they will comply with all applicable Federal,
State, and local laws including the laws and regulations regarding
Equal Employment Opportunities.
(C) FirstServ, Inc. agrees that the office of Thrift Supervision, FDIC, or
other authority will have the authority and responsibility provided to
the other regulatory agencies pursuant to the Bank Service Corporation
Act, 12 U.S.C. 1867 (C) relating to service performed by contract or
otherwise. First Serv, Inc also agrees that its services shall be
subject to oversight by the O.C.C., FDIC or state banking departments
as may be applicable under laws and regulations pertaining to First
Commercial Bank's charter.
(D) Neither party shall be liable for any errors, delays or non-performance
due to events beyond its reasonable control including, but not limited
to, acts of God, failure or delay of power or
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communications, changes in law or regulation or other acts of
governmental authority, strike, weather conditions or transportation.
(E) All written notices required to be given under this Agreement shall be
sent by Registered or Certified Mail, Return Receipt Requested, postage
prepaid, or by confirmed facsimile to the persons and at the addresses
listed below or to such other address or person as a party shall have
designated in writing.
(F) The failure of either party to exercise in any respect any right
provided for herein shall not be deemed a waiver of any rights.
(G) Each party acknowledges that is has read this Agreement, understands
it, and agrees that it is the complete and exclusive statement of the
Agreement between the parties and supersedes and merges any prior or
simultaneous proposals, understandings and all other agreements with
respect to the subject matter. This Agreement may not be modified or
altered except by a written instrument duly executed by both parties.
First Commercial Bank FIRSTSERV, INC.
000 Xxxx Xxxxxx One First Missouri Center
Xxxxxxxxxx, Xxxxxxxxxx 00000 Xx. Xxxxx, Xxxxxxxx 00000
BY: /s/ Xxxxx X. Xxxxxxxx BY: /s/ Xxxxxx X. Xxxxxxx
--------------------- ---------------------
Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxx
President President
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ATTACHMENT 2
PRODUCT AND PRICE SCHEDULE
MONTHLY
VOLUME PRICE FEES
------ ----- ----
BASE SERVICES: $28,000.00
Deposit and Loan Accounts 20,000 Base
.35 (Above Base)
Transactions 415,000 Base
.01 (Above Base)
Network Management 100 Base
(Per Device) 10.00 (Above Base)
POD and Transmission 240,000 Base
.02 (Above Base)
Inclearing and Transmission 165,000 Base
.01 (Above Base)
Statements (Per Account)
DDA 8,200 Base
.25 (Above Base)
Savings 3,000 Base
.05 (Above Base)
Time 6,300 Base
.02 (Above Base)
Loan 2,000 Base
.10 (Above Base)
Deposit Support 17,500 Base
.25 (Above Base)
General Ledger Base
Network Pass-thru
Telecommunications Pass-thru
ATM's Pass-thru
TOTAL BASE SERVICES FEES: $28,000.00
CONVERSION AND TRAINING FEE (ONE TIME FEE) $30,000.00
(Does not include travel and related expenses)
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SERVICES
* ACCOUNT ANALYSIS * SAVINGS
* ACH PROCESSING * SERVICE CHARGE MODELING
* ACCOUNT RECONCILIATION * SWEEP ACCOUNTING
* AUDIT CONFIRMATIONS * TAPE GENERATION FOR COUPON BOOKS
* CERTIFICATES OF DEPOSITS * TAPE GENERATION FOR CREDIT BUREAU
* COMMERCIAL LOANS * TELECOMMUNICATIONS (Fee Applicable)
* COMBINED STATEMENTS * ATM SERVICES (Fee Applicable)
* CONSUMER LOANS * AUDIT SYSTEM
* CUSTOM STATEMENT FORMATS * TELLER
* CUSTOMER INFORMATION FILE (CIF) * CORPORATE CASH MANAGEMENT
* DEMAND DEPOSIT ACCOUNTING * LOAN COLLECTION SYSTEM
* FINANCIAL MANAGEMENT SYSTEM (G/L) * LOAN DOCUMENT PREPARATION SYSTEM
* HOST DISASTER RECOVERY BACK-UP * MARKETING CIF (MCIF)
* LINES OF CREDIT * OPTICAL STORAGE & RETRIEVAL SYSTEM
* MORTGAGE LOANS * QUERY REPORT WRITER
* NETWORK SUPPORT (Fee Applicable) * REGULATORY COMPLIANCE MONITORING
SYSTEM
* ON-LINE NSF/OD RETURN PROCESSING
* REPORT DISTRIBUTION SYSTEM * SAFE DEPOSIT BOX SYSTEM
* RETIREMENT PROCESSING * SENDERO ASSET/LIABILITY MANAGEMENT
SYSTEM
* INCLEARING PROCESSING * VOICE RESPONSE SYSTEM
* PROOF/CAPTURE
* STATEMENT RENDERING
* BULK FILE CYCLE SORT
