MASTER DATA PROCESSING AGREEMENT
This Data Processing Agreement, dated October 1, 1998 is made between MIDWEST
PAYMENT SYSTEMS, INC., having its principal office at 00 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxx 00000 ("MPS") and HERITAGE OAKS BANK ("Customer"),
having its principal office at 000 Xxxxxxx Xxxxxx, Xxxx Xxxxxx, XX 00000. MPS
and Customer hereby agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms shall have the
meanings set forth below: (a) "Agreement" shall mean this Master Data
Processing Agreement and each addendum attached hereto or referencing this
Agreement, and all documents and other materials incorporated herein by
reference (b) "Addendum" or "Addenda" shall mean the addenda incorporated
herein or referencing this Agreement, which describe some of the terms under
which the data processing services will be provided by MPS to Customer, and
the fees to be charged therefor (c) "Services" shall mean the data processing
services provided by MPS to Customer as described in the Addenda (d) Other
defined terms applicable to this Agreement and each Addendum will be
contained in a "Definitions and General Services Addendum" as may be
published and modified from time to time by MPS and the parties agree that
such Addendum shall be incorporated herein and made part of this Agreement.
This Master Data Processing Agreement contains the general terms and
conditions applicable to each Addendum. Each Addendum describes the specific
Services to be provided by MPS to Customer and supplements the Master Data
Processing Agreement.
2. SERVICES
(a) MPS's Obligations. MPS will perform the Services as set forth in the
Addenda. MPS may make changes in the Services based upon, but not limited to,
technological developments, legislative or regulatory changes, or the
introduction of new services by MPS. MPS will use its reasonable best efforts
to notify Customer of any such changes that will materially affect Customer
at least 30 days prior to the implementation date of any such change. The
parties agree that MPS shall be the exclusive provider of the Services
described in each Addendum to this Agreement.
(b) Customer Service Assistance. At the request of Customer, MPS shall
provide customer service assistance necessary to resolve any errors or
alleged errors involving the Services. Assistance from MPS shall be charged
at MPS's standard rates, provided, however, that customer service assistance,
if any, shall be billed on a monthly basis, but shall be without charge to
Customer up to an amount equal to 10% of Customer's xxxxxxxx for the Services
for the current month. Provided, however, that this monthly customer service
fee allowance shall not apply to a request for assistance concerning a
transaction or transactions where the records have been delivered and the 7
day period set forth in Section 10(f) has expired.
3. TERM
The term of this Agreement shall commence October 1, 1998, and shall continue
thereafter in accordance with the respective Addenda, unless earlier
terminated in accordance with this Agreement or any Addendum. Notwithstanding
any Addendum, MPS may, at any time prior to a renewal period, refuse to
extend the term of any Addendum if Customer is in default of this Agreement,
or has from time to time been in default of this Agreement.
4. FEES AND PAYMENTS
The Customer shall pay to MPS for the Services, the fees and expenses set
forth in this Agreement and the Addenda. All fees shall be paid within 30
days of Customer's receipt of MPS's invoice unless otherwise provided herein.
Alternatively, MPS may, at its option, debit Customer's billing account on or
any time after the first day of each month through ACH. MPS will then provide
Customer with a statement of services rendered and charges therefore.
Customer shall supply MPS with a billing account number for this purpose. MPS
may not increase the fees during the first twelve months of the Initial Term
of any Addendum. Thereafter, MPS may change, at its discretion, any fee upon
notice to Customer; provided, however, that any increase in prices for
existing recurring Services shall not in the aggregate exceed 10% in any
calendar year, excluding any price increase due to increased fees or
assessments imposed by third party providers such as, but not limited to,
telecommunication companies and national or regional network switch
providers. Any increase shall become effective not less than 30 days after
the date MPS sends to Customer, by ordinary mail, notice of such increase.
MPS may charge for any non-specified service it provides and expense it
incurs at the request of or on behalf of Customer and Customer shall pay for
such services and expenses as provided in this Section 4.
Notwithstanding any other provisions of this paragraph, in the event that by
virtue of any law, rule, or regulation now existing or hereinafter enacted,
MPS or Customer becomes obligated to change in any fashion their manner of
doing business in order to comply with such law, rule or regulation and MPS
incurs any increased cost by virtue thereof, MPS
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may reasonably incrase its fees to Customer set forth in the attached Addenda
as necessary to offset such increased costs. Any increased fees hereunder if
any, shall not be taken into account for purposes of any price adjustment.
All fees and charges paid hereunder shall be made without set-off or
deduction. Customer shall pay a late charge of 10% of the delinquent amount
when such amount is paid more than 5 business days after it is due. Any fee
not paid when due shall bear interest at 1 percentage point per month but in
no event more than the highest interest rate permitted by law.
5. TITLE TO THE SERVICES
Customer agrees it is acquiring only a nontransferable, non-exclusive right
to use the Services. MPS shall at all times retain exclusive title to the
Services, including without limitation, any materials delivered to Customer
hereunder and any invention, development, product, trade name, trademark,
service xxxx or software program developed in connection with providing the
Services or during the term of this Agreement.
6. CONFIDENTIAL INFORMATION
(a) Information Supplied by Provider. Customer acknowledges that the
methods, techniques, programs, devices and operations of MPS are of a
confidential nature, and are valuable and unique assets of MPS's business.
During the term of this Agreement and following the expiration or termination
thereof, Customer shall not disclose any such confidential information to any
person or entity (other than to those employees and agents of Customer who
participate directly in the performance of this Agreement and need access to
such information). Upon termination of this Agreement, Customer shall deliver
to MPS all manuals, memoranda and other papers, and all copies thereof,
relating in any way to the Services or to MPS. Customer acknowledges that it
does not have nor can Customer acquire any right in or claim to such
confidential information. Customer shall take all necessary steps, including
having its employees and agents execute such documents as MPS deems
reasonably necessary, to cause them to comply with the terms of this Section
6(a). Evidence of such compliance shall be provided to MPS. Customer
acknowledges that the injury that would be sustained by MPS as a result of
the violation of this provision cannot be compensated solely by money
damages, and therefore agrees that MPS shall be entitled to injunctive relief
and any other remedies as may be available at law or in equity in the event
Customer or its employees or agents violate the provisions contained in this
Section 6(a). The restrictions contained in this Section 6(a) shall not apply
to any information which becomes a matter of public knowledge, other than
through a violation of this Agreement or other agreements to which MPS is a
party.
(b) Confidential Information Furnished by Customer. MPS recognizes that in
order to enable MPS to provide the Services, Customer may disclose to MPS
certain confidential information concerning its accounts and customers. MPS
will not disclose any such confidential information other than to those
employees and agents who participate directly in the performance of this
Agreement. Provided, however, MPS may disclose information it receives as may
be required or permitted by any federal, state or local ordinance, any
regulation or directive of any governmental agency, or any court order or
legal process.
(c) Miscellaneous. Customer acknowledges that MPS shall not be responsible
for the accuracy or adequacy of any information provided by Customer or
others to MPS; nor shall MPS be liable for any damage, loss or liability
whatsoever resulting to Customer or its customers as a result of the
inaccuracy or inadequacy of such information.
7. TERMINATION BY CUSTOMER
(a) Correcting Defects. In the event that any materials furnished by MPS are
inaccurate, incomplete, or incorrect, or in the event MPS temporarily fails
to provide the Services (collectively a "Defect"), MPS may either correct the
Defect, without charge to Customer, or effect an equitable reduction of the
price paid or payable for the Services to which such Defect relates, provided
that MPS has received written notice of the Defect from Customer within 30
days from the date on which Customer became aware of, or should have become
aware of, such Defect; provided, however, MPS will not be liable to Customer
for any Defect that should have been reported to MPS pursuant to Section
10(d), or which Defect first occurred, whether or not discovered by Customer,
more than 30 days prior to MPS's receipt of notice of the Defect.
(b) Substantial Nonperformance. In the event Customer reasonably believes
that MPS has substantially failed to provide the Services, Customer will give
to MPS a written notice specifically describing the nature of such failure
and the approximate date on which MPS failed to so provide the Services. Upon
receipt of such notice, MPS shall have 30 days to cure such failure, unless
such failure cannot be reasonably cured within such period and in such case
MPS shall have such additional time as may be necessary to cure such failure
provided that MPS is proceeding diligently to effect such cure. In the event
MPS fails to cure such failure within such time, and such failure has or will
have a materially adverse effect upon Customer, Customer shall have a right
to terminate this Agreement effective upon not less than 60 days prior notice
to MPS.
Upon such termination, MPS will reimburse Customer the actual monetary
damages Customer incurred as a result of
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MPS's nonperformance; provided, however, in no event shall such damages
exceed the limit of liability set forth in Section 9. The obligations of MPS
under this Section 7 are conditioned upon: (i) MPS receiving a notice of
nonperformance from Customer as required in this Section 7, and (ii) MPS
being reasonably satisfied upon investigation that the nonperformance was not
a result of any negligent, improper or prohibited act or omission of
Customer, or their employees or agents, or any other factor not directly
within the reasonable control of MPS. Customer shall promptly reimburse MPS
for any expenses incurred by MPS in investigating or correcting any problem
experienced by Customer which is not the responsibility of or solely caused
by MPS under this Agreement.
(c) Excused or Delayed Performance. MPS shall not be deemed to be in default
under this Agreement nor liable for any delay or loss in the performance,
failure to perform, or interruption of any services resulting, directly or
indirectly, from errors in data provided by Customer or others, labor
disputes, fire or other casualty, governmental orders or regulations, or any
other cause, whether similar or dissimilar to the foregoing, beyond MPS's
reasonable control. Upon such an occurrence, performance by MPS shall be
excused until the cause for the delay has been removed and MPS has had a
reasonable time to again provide the Services.
8. TERMINATION BY MPS
(a) Default of Customer. Customer shall be in default under this Agreement
upon the occurrence of any of the following events ("Events of Default"):
(i) In the event that Customer becomes subject to any voluntary or
involuntary bankruptcy, insolvency, reorganization or liquidation proceeding,
a receiver is appointed for Customer, or Customer makes an assignment for
benefit of creditors, or admits its inability to pay its debts as they come
due; or
(ii) In the event Customer fails to pay the fees, expenses or charges
referenced in Section 4 when they become due; or
(iii) In the event Customer sells 50% or more of the assets related to the
Services while this Agreement is in full force and effect; or
(iv) In the event that Customer is in default of any terms or conditions
of this Agreement (other than Section 4) or any Addendum whether by reason of
its own action or inaction or that of another, and such default continues for
30 days after receipt of a notice from MPS describing such default or
violation, unless within such 30-day period Customer either corrects the
default or, in the opinion of MPS, initiates appropriate action to correct
such default and thereafter diligently pursues to cure such fault.
(b) Termination. Upon the occurence of an Event of Default, MPS may at any
time thereafter terminate this Agreement effective 60 days after notice of
such termination is given by MPS to Customer. Termination of Customer for any
reason shall not relieve Customer from any liability or obligation to MPS
arising prior to such termination. In the event this Agreement is terminated
by MPS other than at the end of the Initial Term or any renewal period,
Customer shall be liable to MPS for liquidated damages in an amount equal to
the average amount of the monthly revenue payable to MPS (excluding any
credits applied to and/or fees waived for Customer by MPS) as a result of
this Agreement for the 3 calendar months in which Customer's xxxxxxxx were
the highest during the preceding 12 calendar months (or such shorter period
if this Agreement has not been in effect for 12 months), multiplied by the
number of months remaining during the then current term of this Agreement.
Customer and MPS recognize and agree that the liquidated damages are fair and
reasonable because it is not possible to establish the actual increase in
volume and activity by Customer during the term of this Agreement. Customer
shall also reimburse MPS for any damage, loss or expense incurred by MPS as a
result of a breach by Customer, including any damages set forth in any
Addendum. All such amounts shall be due and payable by Customer on the
effective date of termination. In addition to, and not in limitation of the
foregoing, MPS may refuse to provide the Services in the event it has not
been paid for the Services as provided in Section 4.
(c) This Agreement, including any Addendum, may be terminated by MPS for any
reason at any time upon 180 days prior written notice to Customer.
(d) Notwithstanding any other provision in this Agreement, in the event that
Customer fails to comply with any term or provision of any Addendum or this
Agreement, which failure adversely affects MPS, MPS reserves the right to
refuse to perform the Services for Customer unless and until Customer has
corrected its failure to comply.
9. LIMITS ON LIABILITY
EXCEPT THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, MPS DISCLAIMS ALL
WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Without limiting the
foregoing, MPS shall not be liable for lost profits, lost business or any
incidental, special, consequential or punitive damages (whether or not
arising out of circumstances known or foreseeable by MPS) suffered by
Customer, its customers or any third party in connection with the Services
provided by MPS hereunder. MPS's liability hereunder shall in no event exceed
an amount equal to the lesser of (i) actual monetary
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damages incurred by Customer or (ii) fees paid for the particular Services in
question for the calendar month immediately preceding the date on which MPS
received Customer's notice of nonperformance as set forth in Section 7. In no
event shall MPS be liable for any matter beyond its reasonable control, or
for damages or losses wholly or partially caused by the Customer, or its
employees or agents, or for any damages or losses which could have been
avoided or limited by Customer giving notice to MPS as provided in Section 7.
No cause of action, regardless of form, shall be brought by either party more
than 1 year after the cause of action arose, other than one for the
nonpayment of fees and amounts due MPS under this Agreement.
10. CUSTOMER'S REPRESENTATIONS AND COVERANTS
Customer represent and warrants to MPS:
(a) That it will comply, and will cause its employees and agents to comply
with, all the terms of this Agreement and any Addendum, including any
amendments thereto.
(b) That it will comply with all applicable federal, state and local laws and
regulations applicable to its business operations and will acquire all the
rights and licenses deemed necessary by MPS for MPS to interface with
Customer, or vice versa, as contemplated under this Agreement.
(c) That it will solely by responsible for the quality, accuracy, and
adequacy of all information supplied to MPS to be input into MPS's computer
system or otherwise provided to MPS hereunder, and that it will establish and
maintain adequate audit controls to monitor the quality and delivery of such
data. Customer acknowledges that MPS may intercept and settle Customer
transactions directly with other entities processed by MPS.
(d) That it will review all reports prepared by MPS and its agents and
submitted to Customer. Customer's failure to reject any report in writing
within three business days of its receipt shall constitute acceptance of the
report.
(e) Customer shall comply with all time deadlines, equipment and software
maintenance and upgrading requirements which MPS may reasonably impose on
Customer from time to time.
(f) Customer shall solely be responsible for all recordkeeping as may be
required of it under any federal, state or local laws and regulations. MPS
shall not be obligated to retain any records of Services performed hereunder
for a period beyond 7 calendar days after delivery of the records to Customer.
(g) That it will indemnify, defend and hold MPS, and its directors, officers,
employees, affiliates and agents, harmless from all proceedings, claims,
liabilities and expenses whatsoever (including attorneys fees) arising out of
the Services, the business of Customer or its customers, or by reason of any
breach or nonperformance or any provision of this Agreement or any Addendum
on the part of the Customer, or its employees, agents or customers, except,
however, where such is due to the sole negligence of MPS.
(h) Customer agrees not to solicit or hire MPS's of its affiliates' employees
for employment during the period that this Agreement is in force and effect
and for one (1) year after the termination or expiration of this Agreement.
(i) Should Customer give notice of termination to MPS at any time, Customer
warrants that both before entering into any agreement with any third party
for the Services provided to Customer by MPS as specified in this Agreement
(including all exhibits and Addenda hereto and all documents and materials
reference herein) or before taking such processing in-house, MPS shall have
the right of first refusal of entering into agreements with Customer for all
such Services under the same terms and conditions (except for the length of
the term, which shall not be less than the length of the term of the
Agreement for which Customer is giving termination notice to MPS) in lieu of
Customer entering into such agreement with a third party. Also, if Customer
plans to bring such processing in-house, MPS shall have the right of first
refusal of entering into an agreement with Customer for such processing at
fees equal to an overall cost (including but not limited to hardware,
software, personnel, etc.) of product development, conversion and maintaining
such processing in-house.
11. AUDIT PROCEDURES
MPS shall allow Customer's auditors to review the files held and the
procedures followed by MPS. MPS will assist such auditors as may be necessary
for them to complete their audit; provided, however, that MPS reserves the
right to charge Customer for MPS's out-of-pocket expenses and its standard
fees for the time spent by MPS's personnel in providing such assistance to
Customer's auditors, or to any governmental examiners because of those
services MPS is providing to Customer.
12. MISCELLANEOUS
(a) Other Agreements. MPS reserves the right to enter into other agreements
pertaining to the Services with others, including without limitation other
banks, savings and loan associations, credit unions and other financial
institutions.
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(b) Taxes. Any sales, use, excise or other taxes (other than MPS's income
taxes) payable in connection with or attributable to the Services shall be
paid by Customer. MPS may, but shall not have the obligation to pay such
taxes if Customer fails to do so. In the event MPS pays such taxes, Customer
shall immediately reimburse MPS upon demand and at the interest rate
applicable for delinquent amounts as set forth in Section 4 hereof.
(c) Violation of Applicable Laws and Regulations. MPS may cease providing any
Service if such Service, in MPS's opinion, violates any federal, state or
local statute or ordinance or any regulation, order or directive of any
governmental agency or court.
(d) Entire Agreement. This Agreement (including all exhibits and Addenda
hereto and all documents and materials referenced herein) supersedes any and
all other agreements, oral or written, between the parties hereto with
respect to the subject matter hereof, and contains the entire agreement
between such parties with respect to the transactions contemplated hereunder.
If there is a conflict between this Master Data Processing Agreement and the
Addenda, the Addenda shall control.
(e) Amendments. This Agreement and any Addendum shall only be modified or
amended by an instrument in writing signed by each party hereto. Provided,
however, MPS may amend or otherwise modify this Agreement and any Addendum
provided such modification does not create any new obligation on the part of
Customer and does not materially diminish any Service being provided by MPS
hereunder. MPS shall give Customer notice of such changes by ordinary mail.
(f) Successors; Assignment. This Agreement and all of the provisions hereof
shall be binding upon the inure to the benefit of the parties hereto and
their respective successors, transferees and assignees. Neither this
Agreement nor any interest herein may directly and indirectly be transferred
or assigned by Customer, in whole or in part, without the prior written
consent of MPS.
(g) Notices. Except as provided in Section 4 and Section 12(e) all notices,
requests, demands and other communications to be delivered hereunder shall be
writing and shall be delivered by hand or mailed, by registered or certified
mail, postage prepaid, at or to the following addresses:
(i) If to MPS: (ii) If to Customer:
Midwest Payment Systems, Inc.
00 Xxxxxxxx Xxxxxx Xxxxx ---------------------------------
Xxxxxxxxxx, Xxxx 00000
Attention: President ---------------------------------
With a copy to: General ---------------------------------
Counsel of MPS at the
same address Attention:
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or to such other address or to such other person as either party shall have
last designated by written notice to the other party. Notices, etc., so
delivered shall be deemed given upon receipt.
(h) Waiver. If either party waives in writing and unsatisfied condition,
representation, warranty, undertaking or agreement (or portion thereof) set
forth herein, the waiving party shall thereafter be barred from recovering,
and thereafter shall not seek to recover, any damages, claims, losses,
liabilities or expenses, including, without limitation, legal and other
expenses, from the other party in respect of the matter or matters so waived.
Except as otherwise specifically provided for in this Agreement or any
Addendum, the failure of any party to promptly enforce its rights herein
shall not be construed to be a waiver of such rights unless agreed to in
writing. Any rights and remedies specifically provided for in any Addendum
are in addition to those rights and remedies set forth in this Agreement.
(i) Headings. The headings in this Agreement are for convenience of reference
only and shall not be deemed to alter or affect any provision of this
Agreement.
(j) Severability. If any term or provision of this Agreement or any
application thereof shall be invalid or unenforceable the remainder of this
Agreement and any other application of such term or provision shall not be
affected thereby.
(k) No Third Party Beneficiary. This Agreement is for the benefit of, and may
be enforced only by, MPS and Customer and their respective successors and
permitted transferees and assignees, and is not for the benefit of, and may
not be enforced by, any third party.
(l) Applicable Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Ohio. The parties
hereby consent to service of process, personal jurisdiction, and venue in the
courts of general jurisdiction of Cincinnati, Ohio or Xxxxxxxx County, Ohio,
and any federal court with concurrent jurisdiction, with respect to any
action or proceeding brought to enforce any liability or obligation under
this Agreement.
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(m) Authorization. Each of the parties hereto represent and warrants on
behalf of itself that it has full power and authority to enter into this
Agreement; that the execution, delivery and performance of this Agreement has
been duly authorized by all necessary corporate or partnership or other
appropriate authorizing actions; that the execution, delivery and performance
of this Agreement will not contravene any applicable by-law, corporate
charter, partnership or joint venture agreement, law, regulation, order of
judgment; that execution, delivery and performance of this Agreement will not
contravene any provision or constitute a default under any other agreement,
license or contract which such party is bound; and, that this Agreement is
valid and enforceable in accordance with its terms.
(n) Counterparts. This Agreement may be executed and delivered in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(o) Drafting. This Agreement has been drafted by MPS as a matter of
convenience only and shall not be construed in favor of either party on that
account.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their authorized officers as of the dates set forth below.
MIDWEST PAYMENT SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXXXXX
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Name: XXXXX X. XXXXXXXXX
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Title: SENIOR VICE PRESIDENT
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Date: November 30, 1998
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CUSTOMER--HERITAGE OAKS BANK
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
Date:
-------------------------------
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(m) Authorization. Each of the parties hereto represents and warrants on
behalf of itself that it has full power and authority to enter into this
Agreement; that the execution, delivery and performance of this Agreement has
been duly authorized by all necessary corporate or partnership or other
appropriate authorizing actions; that the execution, delivery and performance
of this Agreement will not contravene any applicable by-law, corporate
charter, partnership or joint venture agreement, law, regulation, order or
judgment; that execution, delivery and performance of this Agreement will not
contravene any provision or constitute a default under any other agreement,
license or contract which such party is bound; and, that this Agreement is
valid and enforceable in accordance with its terms.
(n) Counterparts. This Agreement may be executed and delivered in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(o) Drafting. This Agreement has been drafted by MPS as a matter of
convenience only and shall not be construed in favor or either party on that
account.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their authorized officers as of the dates set forth below.
MIDWEST PAYMENT SYSTEMS, INC.
By:
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Name:
-------------------------------
Title:
-------------------------------
Date:
-------------------------------
CUSTOMER--HERITAGE OAKS BANK
By: /s/ XXXXXXXX X. XXXX
-------------------------------
Name: XXXXXXXX X. XXXX
-------------------------------
Title: President
-------------------------------
Date: November 30, 1998
-------------------------------
AMENDMENT NO. 1 TO
THE MASTER DATA PROCESSING AGREEMENT AND CORRESPONDING ADDENDA
This Amendment No. 1 to the Master Data Processing Agreement dated October 1,
1998, and corresponding Addenda, (collectively the "Agreement") is made
between MIDWEST PAYMENT SYSTEMS, INC. ("MPS") and HERITAGE OAKS BANK
("Customer"). The Agreement shall be amended in the following respects.
I. EXECUTION OF NEW AGREEMENT. On or before the execution of this Amendment
No. 1 by Customer, Customer agrees to execute an unaltered original of
MPS' standard Master Data Processing Agreement and corresponding Addenda
BV, CU, FS, FU, KU, NA and TU, to the Master Data Processing Agreement
dated October 1, 1998, where all such Addenda are dated October 1, 1998,
and each having an Initial Term of not less than thirty-nine (39) months
collectively, "New Agreement").
II. CONVERSION. Customer acknowledges and agrees that it shall do everything
necessary to convert to MPS' system for all of the Services in the
Agreement at the earliest possible opportunity but in no event later than
March 1, 1999. MPS will use its best efforts to convert Customer's
existing cardbase on or before March 1, 1999, however, Customer
acknowledges and agrees that MPS' conversion of Customer is based on data
provided by third parties and MPS shall not be in breach of the
Agreement in the event the data provided by such third parties is
incomplete and/or inaccurate (i.e., such data does not contain Customer
cardbase information required by MPS, including, but not limited to,
PIN/PIN Offsets, card numbers, account numbers, name and address
information and CVV algorithms). MPS and Customer acknowledge and agree
that MPS will use its best efforts to support online authorization for
Customer's Cardholders' transactions via MPS connection to the Alltel
Community Banking Data Center in Los Angeles, California, however, in
the event said online connection through Alltel is not available for
reasons beyond the control of MPS, Customer agrees that MPS will use
an extracts/positive file balance environment for support of Customer's
authorizations, until such time as an online authorization environment may
be established in accordance with MPS' standards.
III. WAIVER CREDIT. In consideration of Customer executing more than a
thirty-nine (39) month Agreement with MPS (i.e., a thirty-nine (39) month
term, plus the Waiver Period, as defined below, for Addenda BV, CU, FS, FU,
NA and TU executed by Customer and MPS) and continuing to process with
MPS for all the Services in each executed Addenda for at least such
thirty-nine (39) month term plus the Waiver Period, the net amount of
MPS fees (but not third party fees) assessed by MPS on an MPS Services
Invoice in connection with some or all of the following list of individual
services shall be applied by MPS against a one-time waiver credit amount
equal to the lesser of: (i) the actual costs paid by Customer to convert
from EDS' system or (ii) $15,000.00 ("Waiver Credit") until such Waiver
Credit is reduced to zero; provided that Customer provides MPS written
documentation evidencing the total cost actually paid by Customer to
EDS for Customer's conversion from EDS' system with such documentation
sent to the MPS General Counsel at 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxx 00000, with a copy to the Billing Manager at the same address.
ADDENDUM FS
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- Section C.3.a), Electronic authorization
- Section C.3.c), Remote item posting fee
- Section C.4.a), Plastic debit or credit card
- Section C.4.b), Account file residency
- Section C.4.c), Credit account statement-to-date
- Section C.5, Credit account monthly maintenance
ADDENDUM NA
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- Section C.1), ATM Access Fees
- Section C.3.a), All Transactions
- Section C.3.b), Positive Balance Authorization Surcharge
- Section C.3.c), Stand-in Processing Surcharge
- Section C.4.a), Plastic debit or credit card file
- Section C.4.b), Cluster File Extension Support
- Section C.4.c), Account File Residency (Option Z)
- Section C.4.d), CRT File Updates
- Section C.4.e), Cluster PIN Validation transaction fee surcharge
- Section C.6.a), Stand-in Processing File residency
- Section C.6.b), Stand-in Processing File residency extension
- Section C.6.c), Stand-in Processing CRT file updates
- Section D, Network Access Services, Monthly Access Fee
- Section E.1.a), Online Adjustment System File Residency
- Section E.1.b), Online Adjustment System CRT file updates
- Section E.2.b), Online Deposit System CRT file updates
The Waiver Credit shall be reduced monthly by MPS fees incurred and
payable by Customer on the MPS Services Invoice in the given month for
some or all of the services above until such Waiver Credit is reduced
to zero. The total number of calendar months during which any portion
of the Waiver Credit was applied on an MPS Services Invoice shall be
referred to as the "Waiver Period". At the conclusion of such Waiver
Period, Customer shall be charged the fees specified in the Addendum for
such services, subject to any increases under Section 4 of the Master
Data Processing Agreement, and/or the fees for such services as amended
herein, subject to any increases under Section 4 of the Master Data
Processing Agreement. Notwithstanding any other provision of this
Agreement, Customer expressly acknowledges and agrees that Customer shall
be obligated to unconditionally pay MPS an amount equal to the total
amount of the Waiver Credit applied on any MPS Services Invoices during
any portion of the Waiver Period (which Waiver Credit shall be $15,000.00
if the Waiver Period has expired) in the event of a material Event of
Default by Customer. Customer expressly acknowledges and agrees that
the amount payable by Customer pursuant to the previous sentence shall
be in addition to any other amounts payable by Customer pursuant to this
Agreement, including but in no way limited to the amount payable for
Deconversion Support and the amount payable pursuant to Section 8.(b) of
the Master Data Processing Agreement
IV. MPS and Customer acknowledge and agree that, for purposes of this
Agreement and for determining the length of the Initial Term of each
Addendum to the Agreement, the term "Initial Term Period" shall mean
the period of time equal to thirty-nine (39) months plus the Waiver Period.
1
A. THE MASTER DATA PROCESSING AGREEMENT DATED OCTOBER 1, 1998, SHALL BE
AMENDED AS FOLLOWS:
1. Section 2.(a), MPS's Obligations, shall be amended by deleting the last
sentence of the paragraph beginning in line six (6) with the words "The
parties agree" and substituting the following in lieu thereof:
"The parties agree that MPS shall be the exclusive provider of the Visa
Check Card Services and ATM Card Services. The parties further agree that
MPS shall be the exclusive provider of the Intercept Services and
Processor Services and Gateway Services for each of Customer's existing
and future branch ATMs, which for purposes of this Agreement shall mean
those ATMs located on property where Customer operates a manned banking
facility. At the time of the execution of this Agreement, the parties
acknowledge that, for purposes of this exclusivity clause, Customer has
a total of 7 ATMs at its bank branches, 5633 ATM cards and 2,606 Visa
Check cards."
2. Section 2, Services, shall be amended by adding the following new
provisions as Section 2.(c):
"(c) Year 2000. MPS' proprietary software used in connection with the
Services will be able to accurately process data (including calculating,
comparing, and sequencing) from, into, and between the twentieth
twenty-first centuries when used in accordance with MPS' standards,
provided that all other products, systems and services (e.g., hardware,
ATMs, software, firmware, etc.) used by Customer or other third parties
in combination with the Services properly exchange, in accordance with
MPS' standards, date data and related information with MPS' proprietary
software."
3. Section 4, Fees and Payments, paragraph number one, shall be amended by
deleting the sentences beginning in line two (2) with the words "All
fees shall be paid" and ending in line seven (7) with the words "for
this purpose".
4. Section 4, Fees and Payments, paragraph number one, shall be amended by
deleting the words "exceed 10% in any calendar year" in line ten (10) and
substituting the words "exceed the higher of five percent (5%) per annum,
or the change, expressed as a percentage in the official Consumers Price
Index (CPI) for Wage Earners and Clerical Workers as published by the
U.S. Department of Labor, Bureau of Labor Statistics, (for the most
recent 12 month period for which data is available), in any calendar
year ("5%--CPI Increase")" in lieu thereof.
5. Section 4, Fees and Payments, paragraph number one, shall be further
amended by adding the following sentence to the end of the paragraph:
"MPS and Customer agree that MPS will not debit Customer's account via
ACH to settle the fees payable to MPS pursuant to this Agreement, rather,
MPS will send Customer an invoice for such amounts, and Customer will
remit payment to MPS within fifteen days (15) days of Customer's receipt
of the same."
6. Section 4, Fees and Payments, paragraph number three, shall be amended
by deleting the phrase "1 percentage point" in the last sentence and
replacing it with the phrase "1.5 percentage points".
7. Section 6.(a) shall be amended by inserting the following sentence
after the words "access to information" in line seven (7):
"Provided, however, Customer may disclose information it receives as
may be required by any federal, state or local ordinance, any regulation
or directive of any governmental agency, or any court order or legal
process."
8. Section 6.(b), Confidential Information Furnished by Customer, shall be
amended by adding the following sentence to the end of the paragraph:
"MPS agrees to maintain such Customer confidential information under
the same terms and with the same remedies that Customer is to treat MPS
supplied information as specified in Section 6.(a)., however, Customer
acknowledges that certain Customer Confidential information will be
disclosed to Alltel Information Systems."
9. Section 7.(b), Substantial Nonperformance, paragraph number 1, shall be
amended by deleting the words "such additional time as may be necessary
to cure such failure provided that MPS is proceeding diligently to
effect such cure" beginning in line six (6) and substituting the words
"an additional ninety (90) days to cure such failure" in lieu thereof,
and further amended by deleting the words "upon not less than 60 days
prior notice to MPS" in line ten (10) and substituting the words "upon
Customer's written notice of its intent to terminate" in lieu thereof.
10. Section 8.(a)(ii) Default by Customer, shall be amended by deleting the
", or" at the end of the sentence and adding the following in lieu
thereof, ", unless there is a bona fide dispute concerning the validity
of those fees, expenses or charges; or"
11. Section 8.(a)(iii) Default by Customer, shall be amended by adding the
following to the end of the sentence, ", unless such purchaser(s) of the
assets execute(s) a Master Data Processing Agreement and all Addenda
then currently in place with Customer, covering all the applicable assets
and all Services."
12. Section 8.(b), Termination, shall be amended by adding the words,
"multiplied by 80%" after the words "current term of this Agreement" in
line nine (9).
13. Section 9, Limits on Liability, shall be amended by deleting the words
"calendar month" in line nine and substituting the words "two calendar
months" in lieu thereof; and further amended by deleting the last
sentence of the section beginning in line fifteen (15) with the words
"No cause of action".
14. Section 10.(d) shall be amended by inserting the words "and invoices"
after the word "reports" in line one (1) and further amended by deleting
the words "any report in writing within three business days" in line two
(2) and substituting the words "any settlement oriented report within
seven business days of its receipt or any other report, including but
not limited to invoices, within thirty (30) business days" in lieu
thereof, and further amended by adding the word "and/or invoice" after
the word "report" in line three (3).
15. Section 10.(g) shall be amended by deleting the words "where such is
due to the sole negligence of MPS" beginning in line six (6) and
substituting the words "to the extent caused by MPS' negligence,
willful misconduct or breach of the Agreement" in lieu thereof.
2
16. Section 10.(i) shall be deleted in its entirety.
17. Section 12.(e), Amendments, shall be amended by deleting the last two
sentences of the paragraph beginning in line two (2) with the words
"Provided, however" and ending in line six (6) with the words "by
ordinary mail".
18. Section 12.(f), Successors; Assignment, shall be amended by adding the
following after the words "consent of MPS" in line five (5):
", which consent shall not be unreasonably withheld; provided, however,
that such transferee or assignee executes an amendment to this Agreement
acknowledging such transferee's or assignee's obligations under this
Agreement, including but not limited to its payment of any fees or costs
associated with such transfer or assignment."
19. Section 12.(o), Drafting, shall be deleted in its entirety.
B. ADDENDUM BV DATED OCTOBER 1, 1998, SHALL BE AMENDED AS FOLLOWS:
1. Section B, Term, shall be deleted in its entirety and the following
substituted in lieu thereof:
"The term of this Addendum shall commence on October 1, 1998, and
shall continue for the Initial Term Period from the 1st day of the
calendar month following the above date or the date MPS has received
notice from CIRRUS of its acceptance of Licensee as a Corresponding
Member or the date of Licensee's conversion to MPS for Gateway Services
("Initial Term") whichever event shall later occur. Except as
hereafter provided, unless either party gives notice to the other party
at least 120 days prior to the expiration of any term, the Agreement and
this Addendum shall be automatically extended for additional periods
equal to three (3) years each."
2. Section C.2, Monthly Assessment Fee, shall be amended by MPS crediting
Customer $100/month during the Initial Term to partially offset the
Monthly Assessment Fee, provided Customer's executed Addenda CU, FU,
KU and TU are in full force and effect, and further provided Customer is
assessed such fee by MPS.
3. Section D.10 shall be deleted and replaced with the following:
"Customer agrees to be responsible for all direct costs and third party
fees, including but not limited to those incurred by MPS, at the
termination of the Agreement, and/or related to Customer's conversion
from MPS at any time. However, with respect to Customer's conversion
from MPS upon the termination of the entire Agreement, such direct costs
shall be limited to sixty (60) programming hours plus one (1) programming
hour per ATM, multiplied by the number of Customer's then current number
of ATMs, plus the programming hours for any written special requests made
by Customer to MPS. This limitation shall apply, and shall be the total
maximum direct costs for deconversion, regardless of the number of
Addenda executed by the parties."
4. Section E, Indemnification, shall be amended by deleting the words "MPS
or Licensee, or their agents" in line seventeen (17) and substituting the
words "Licensee or its agents" in lieu thereof, and further amended by
adding the following to the end of the paragraph:
"MPS agrees to indemnify and hold harmless, Customer, its officers,
employees, affiliates and agents, from and against any losses, damages,
fees, fines, penalties and expenses, including reasonable legal and
accounting fees and expenses, that Customer, its officers, employees,
affiliates and agents may incur as a result of MPS' failure to comply
with any provision of the Agreement or this Addendum, whether incurred
by or as a result of the action or failure to act of MPS or its agents,
except for such losses, damages, fees, fines, penalties and expenses,
including reasonable legal and accounting fees and expenses, which are
caused by the negligence of Customer, a third party or CIRRUS. This
indemnification shall survive the termination of the Agreement and/or
this Addendum."
C. ADDENDUM CU DATED OCTOBER 1, 1998, SHALL BE AMENDED AS FOLLOWS:
1. Section B, Term, shall be deleted in its entirety and the following
substituted in lieu thereof:
"The term of this Addendum shall commence on October 1, 1998, and
shall continue for the Initial Term Period from the 1st day of the
calendar month following the above date or the date Bank has received
notice from PSI of its acceptance of Licensee as a Sponsored Member
or the date of Licensee's conversion to MPS for PLUS Gateway Services
("Initial Term") whichever event shall later occur. Except as hereafter
provided, unless either party gives notice to the other party at least
120 days prior to the expiration of any term, the Agreement and this
Addendum shall be automatically extended for additional periods equal
to three (3) years each."
2. Section C.2, Monthly Assessment Fee, shall be amended by MPS crediting
Customer $100/month during the Initial Term to partially offset the
Monthly Assessment Fee, provided Customer's executed Addenda BV, FU, KU
and TU are in full force and effect, and further provided Customer is
assessed such fee by MPS.
3. Section D.10 shall be deleted and replaced with the following:
"Customer agrees to be responsible for all direct costs and third party
fees, including but not limited to those incurred by MPS, at the
termination of the Agreement, and/or related to Customer's conversion
from MPS at any time. However, with respect to Customer's conversion
from MPS upon the termination of the entire Agreement, such direct costs
shall be limited to sixty (60) programming hours plus one (1) programming
hour per ATM, multiplied by the number of Customer's then current number
of ATMs, plus the programming hours for any written special requests made
by Customer to MPS. This limitation shall apply, and shall be the total
maximum direct costs for deconversion, regardless of the number of
Addenda executed by the parties."
4. Section E, Indemnification, shall be amended by deleting the words "MPS
or Licensee, or their agents" in line eighteen (18) and substituting the
words "Licensee or its agents" in lieu thereof, and further amended by
adding the following to the end of the paragraph:
"MPS agrees to indemnify and hold harmless, Customer, its officers,
employees, affiliates and agents, from and against any losses, damages,
fees, fines, penalties and expenses, including reasonable legal and
accounting fees and expenses, that Customer, its officers, employees,
affiliates and agents may incur as a result of MPS' failure to comply
with any provision of the Agreement or this Addendum, whether incurred
by or as a result of the action or failure to act of MPS or its agents,
except for such losses, damages, fees, fines, penalties and expenses,
including reasonable legal and accounting fees and expenses, which are
caused by the negligence of Customer, a third party or PLUS. This
indemnification shall survive the termination of the Agreement and/or
this Addendum."
3
D. ADDENDUM FS DATED OCTOBER 1, 1998, SHALL BE AMENDED AS FOLLOWS:
1. Section B, Term, shall be amended by deleting the first sentence in
its entirety and the following substituted in lieu thereof:
"The term of this addendum shall commence on October 1, 1998 and
shall continue for the Initial Term Period from the 1st day of the
calendar month following the above date or the date MPS has received
notice from VISA of its acceptance of Licensee as a Member or the
date of Licensee's conversion to MPS for Check Card Program Services
("Initial Term") whichever event shall later occur. Except as
hereafter provided, unless either party gives notice to the other
party at least 120 days prior to the expiration of any term, the
Agreement and this Addendum shall be automatically extended for
additional periods equal to three (3) years each."
2. Section D.10 shall be deleted and replaced with the following:
"Customer agrees to be responsible for all direct costs and third
party fees, including but not limited to those incurred by MPS, at
the termination of the Agreement, and/or related to Customer's
conversion from MPS at any time. However, with respect to Customer's
conversion from MPS upon the termination of the entire Agreement, such
direct costs shall be limited to sixty (60) programming hours plus
one (1) programming hour per ATM, multiplied by the number of
Customer's then current number of ATMs, plus the programming hours for
any written special requests made by Customer to MPS. This limitation
shall apply, and shall be the total maximum direct costs for
deconversion, regardless of the number of Addenda executed by the
parties."
3. Section D.12 shall be deleted in its entirety.
4. Section F, Indemnification, shall be amended by deleting the words
"MPS or Licensee, or their agents" beginning in line eight (8) and
substituting the words "Licensee or its agents" in lieu thereof, and
further amended by adding the following to the end of the paragraph:
"MPS agrees to indemnify and hold harmless, Customer, its officers,
employees, affiliates and agents, from and against any losses,
damages, fees, fines, penalties and expenses, including reasonable
legal and accounting fees and expenses, that Customer, its officers,
employees, affiliates and agents may incur as a result of MPS'
failure to comply with any provision of the Agreement or this
Addendum, whether incurred by or as a result of the action or
failure to act of MPS or its agents, except for such losses,
damages, fees, fines, penalties and expenses, including reasonable
legal and accounting fees and expenses which are caused by the
negligence of Customer, a third party or VISA. This indemnification
shall survive the termination of the Agreement and/or this Addendum."
E. ADDENDUM FU DATED OCTOBER 1, 1998, SHALL BE AMENDED AS FOLLOWS:
1. Section B, Term, shall be amended by deleting the first sentence in
its entirety and the following substituted in lieu thereof:
"The term of this Addendum shall commence on October 1, 1998 and
shall continue for the Initial Term Period from the 1st day of the
calendar month following the above date or the date Bank has received
notice from VISA of its acceptance of Licensee as a Member or the
date of Licensee's conversion to MPS for VISA Gateway Services
("Initial Term") whichever event shall later occur. Except as
hereafter provided, unless either party gives notice to the other
party at least 120 days prior to the expiration of any term, the
Agreement and this Addendum shall be automatically extended for
additional periods equal to three (3) years each."
2. Section C.2, Monthly Assessment Fee, shall be amended by MPS
crediting Customer $100/month during the Initial Term to partially
offset the Monthly Assessment Fee, provided Customer's executed
Addenda BV, CU, KU and TU are in full force and effect, and further
provided Customer is assessed such fee by MPS.
3. Section D.10 shall be deleted and replaced with the following:
"Customer agrees to be responsible for all direct costs and third
party fees, including but not limited to those incurred by MPS, at
the termination of the Agreement, and/or related to Customer's
conversion from MPS at any time. However, with respect to Customer's
conversion from MPS upon termination of the entire Agreement, such
direct costs shall be limited to sixty (60) programming hours plus
one (1) programming hour per ATM, multiplied by the number of
Customer's then current number of ATMs, plus the programming hours for
any written special requests made by Customer to MPS. This limitation
shall apply, and shall be the total maximum direct costs for
deconversion, regardless of the number of Addenda executed by the
parties."
4. Section E, Indemnification, shall be amended by deleting the words
"MPS or Licensee, or their agents" in line fifteen (15) and
substituting the words "Licensee or its agents" in lieu thereof, and
further amended by adding the following to the end of the paragraph:
"MPS agrees to indemnify and hold harmless, Customer, its officers,
employees, affiliates and agents, from and against any losses,
damages, fees, fines, penalties and expenses, including reasonable
legal and accounting fees and expenses, that Customer, its officers,
employees, affiliates and agents may incur as a result of MPS'
failure to comply with any provision of the Agreement or this
Addendum, whether incurred by or as a result of the action or
failure to act of MPS or its agents, except for such losses,
damages, fees, fines, penalties and expenses, including reasonable
legal and accounting fees and expenses which are caused by the
negligence of Customer, a third party or VISA. This indemnification
shall survive the termination of the Agreement and/or this addendum."
F. ADDENDUM KU DATED OCTOBER 1, 1998, SHALL BE AMENDED AS FOLLOWS:
1. Section B, Term, shall be amended by deleting the first sentence in
its entirety and the following substituted in lieu thereof:
"The term of this addendum shall commence on October 1, 1998 and
shall continue for the Initial Term Period or until the termination
of the agreement between MPS and DCSI to provide ATM access to
Discover Cards (whichever event shall earlier occur) from the 1st day
of the calendar month following the above date or the date of DCSI's
acceptance of Licensee as a Sponsored Member through MPS as the
Direct Member or the date of Licensee's conversion to MPS for
Discover Gateway Services ("Initial Term") whichever event shall
later occur. Except as hereafter provided, unless either party gives
notice to the other party at least 120 days prior to the expiration
of any term, the Agreement and this Addendum shall be automatically
extended for additional periods equal to three (3) years each."
2. Section C.2, Monthly Assessment Fee, shall be amended by MPS
crediting Customer $100/month during the Initial Term to partially
offset the Monthly Assessment Fee, provided Customer's executed
Addenda BV, CU, FU and TU are in full force and effect, and further
provided Customer is assessed such fee by MPS.
4
3. Section D.12 shall be deleted and replaced with the following:
"Customer agrees to be responsible for all direct costs and third
party fees, including but not limited to those incurred by MPS, at
the termination of the Agreement, and/or related to Customer's
conversion from MPS at any time. However, with respect to Customer's
conversion from MPS upon the termination of the entire Agreement, such
direct costs shall be limited to sixty (60) programming hours plus
one (1) programming hour per ATM, multiplied by the number of
Customer's then current number of ATMs, plus the programming hours for
any written special requests made by Customer to MPS. This limitation
shall apply, and shall be the total maximum direct costs for
deconversion, regardless of the number of Addenda executed by the
parties."
4. Section E, Indemnification, shall be amended by deleting the words
"MPS or Licensee, or their agents" in line thirteen (13) and
substituting the words "Licensee or its agents" in lieu thereof, and
further amended by adding the following to the end of the paragraph:
"MPS agrees to indemnify and hold harmless, Customer, its officers,
employees, affiliates and agents, from and against any losses,
damages, fees, fines, penalties and expenses, including reasonable
legal and accounting fees and expenses, that Customer, its officers,
employees, affiliates and agents may incur as a result of MPS'
failure to comply with any provision of the Agreement or this
Addendum, whether incurred by or as a result of the action or
failure to act of MPS or its agents, except for such losses,
damages, fees, fines, penalties and expenses, including reasonable
legal and accounting fees and expenses which are caused by the
negligence of Customer, a third party or DISCOVER. This indemnification
shall survive the termination of the Agreement and/or this Addendum."
G. ADDENDUM NA TO THE MASTER DATA PROCESSING AGREEMENT DATED OCTOBER 1, 1998,
SHALL BE AMENDED AS FOLLOWS:
1. Section B, Term, shall be amended by deleting the first sentence in
its entirety and the following substituted in lieu thereof:
"The term of this Addendum shall commence October 1, 1998, and
shall continue for the Initial Term Period from the 1st day of the
calendar month following the above date or the date of Customer's
Conversion to MPS for Intercept and Processor Services ("Initial
Term") whichever event shall later occur. Except as hereafter
provided, unless either party gives notice to the other party at
least 120 days prior to the expiration of any term, the Agreement and
this Addendum shall be automatically extended for additional periods
equal to three (3) years each."
2. Section C.1, ATM Access Fees, shall be deleted and the following new
provision shall be substituted in lieu thereof:
"ATM Access Fees
(tiering cumulative)
-0 - 26 ATMS $75/ATM/month
-26 and above ATMs $50/ATM/month"
3. Section C.3.a, All Transactions, shall be deleted and the following new
provision shall be substituted in lieu thereof:
"All Transactions $.05/transaction"
4. Section D., Network Access Services, shall be amended by MPS
crediting Customer $150/month during the Initial Term to partially
offset the STAR Network Monthly Access Fee specified in line nineteen
(19), provided customer is assessed such fee by MPS.
5. Section E.3.a, Communication Controller Access Fees, shall be amended
by MPS crediting Customer $50/port/month during the Initial Term to
partially offset the Remote Authorization Data Center Shared Use Port
fee, provided Customer is assessed such fee by MPS.
6. By MPS crediting Customer $400.00/month against Customer's
telecommunication fees provided Customer is using satellite
connectivity to MPS from at least six (6) different banking locations,
and further provided that Customer is assessed such fee by MPS.
7. Section H.15 shall be deleted and replaced with the following:
"15. Customer agrees to be responsible for all direct costs and third
party fees, including but not limited to those incurred by MPS,
however such direct costs shall be limited to sixty (60) programming
hours plus one (1) programming hour per ATM, multiplied by the number
of Customer's then current number of ATMs, plus the programming hours
for any written special requests made by Customer to MPS, in
connection with and/or related to Customer's conversion from MPS at
the termination of this Addendum and/or related to any conversion by
Customer. This limitation shall apply, and shall be the total maximum
direct costs for deconversion, regardless of the number of Addenda
executed by the parties."
8. Section I, Indemnification, shall be amended by deleting the words
"MPS or Customer, or their agents" in line twelve (12) and
substituting the words "Customer or its agents" in lieu thereof, and
further amended by adding the following to the end of the paragraph:
"MPS agrees to indemnify and hold harmless, Customer, its officers,
employees, affiliates and agents, from and against any losses,
damages, fees, fines, penalties and expenses, including reasonable
legal and accounting fees and expenses, that Customer, its officers,
employees, affiliates and agents may incur as a result of MPS'
failure to comply with any provision of the Documentation, the
Agreement or this Addendum or for any other reason in connection with
the Intercept or Processor Services provided hereunder, whether
incurred by or as a result of the action or failure to act of MPS or
its agents, except for such losses, damages, fees, fines, penalties
and expenses, including reasonable legal and accounting fees and
expenses, which are caused by the negligence of Customer. This
indemnification shall survive the termination of the Agreement
and/or this Addendum."
H. ADDENDUM TU DATED OCTOBER 1, 1998, SHALL BE AMENDED AS FOLLOWS:
1. Section B, Term, shall be amended by deleting the first sentence in
its entirety and the following substituted in lieu thereof:
"The term of this Addendum shall commence on October 1, 1998 and
shall continue for the Initial Term Period or until the termination
of the agreement between MPS and American Express (whichever event
shall earlier occur) from the 1st day of the calendar month following
the above date or the date of American Express' acceptance of
Licensee as a Member or the date of Licensee's conversion to MPS for
American Express Gateway Services ("Initial Term") whichever event
shall later occur. Except as hereafter provided, unless either party
gives
5
notice to the other party at least 120 days prior to the expiration
of any term, the Agreement and this Addendum shall be automatically
extended for additional periods equal to three (3) years each."
2. Section C.2, Monthly Assessment Fee, shall be amended by MPS
crediting Customer $100/month during the Initial Term to partially
offset the Monthly Assessment Fee, provided Customer's executed
Addenda BV, CU, FU and KU are in full force and effect, and further
provided Customer is assessed such fee by MPS.
3. Section D.12 shall be deleted and replaced with the following:
"Customer agrees to be responsible for all direct costs and third
party fees, including but not limited to those incurred by MPS, at
the termination of the Agreement, and/or related to Customer's
conversion from MPS at any time. However, with respect to Customer's
conversion from MPS upon termination of the entire Agreement, such
direct costs shall be limited to sixty (60) programming hours plus
one (1) programming hour per ATM, multiplied by the number of
Customer's then current number of ATMs, plus the programming hours for
any written special requests made by Customer to MPS. This limitation
shall apply, and shall be the total maximum direct costs for
deconversion, regardless of the number of Addenda executed by the
parties."
4. Section E, Indemnification, shall be amended by deleting the words
"MPS or Licensee, or their agents" beginning in line fourteen (14) and
substituting the words "Licensee or its agents" in lieu thereof, and
further amended by adding the following to the end of the paragraph:
"MPS agrees to indemnify and hold harmless, Customer, its officers,
employees, affiliates and agents, from and against any losses,
damages, fees, fines, penalties and expenses, including reasonable
legal and accounting fees and expenses, that Customer, its officers,
employees, affiliates and agents may incur as a result of MPS'
failure to comply with any provision of the Agreement or this
Addendum, whether incurred by or as a result of the action or
failure to act of MPS or its agents, except for such losses, damages,
fees, fines, penalties and expenses, including reasonable legal and
accounting fees and expenses which are caused by the negligence of
Customer, a third party or AMERICAN EXPRESS. This indemnification
shall survive the termination of the Agreement and/or this Addendum."
Except as otherwise provided in this Amendment, the terms of the Agreement
shall remain in full force and effect.
MIDWEST PAYMENT SYSTEMS, INC. CUSTOMER: HERITAGE OAKS BANK
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxxxx X. Xxxx
------------------------------- -------------------------------
Name: XXXXX X. XXXXXXXXX Name: XXXXXXXX X. XXXX
----------------------------- -----------------------------
Title: SENIOR VICE PRESIDENT Title: PRESIDENT
---------------------------- ----------------------------
Date: Nov 30, 1998 Date: 11-30-98
----------------------------- -----------------------------
6
ADDENDUM TO MASTER DATA PROCESSING AGREEMENT
CIRRUS SYSTEM GATEWAY SERVICES -- CORRESPONDING MEMBER
This Agreement shall be an Addendum to the Master Data Processing Agreement
(the "Agreement"), dated October 1, 1998 between HERITAGE OAKS BANK
("Licensee"), having its principal offices at 000 Xxxxxxx Xxxxxx, Xxxx
Xxxxxx, XX 00000, and MIDWEST PAYMENT SYSTEMS, INC. ("MPS").
I. MPS is a Principal Member of CIRRUS System, Incorporated ("CIRRUS"),
in order to provide other depository institutions with access to the CIRRUS
electronic funds transfer network.
II. MPS has the systems, computers and communications necessary to allow
it to interface with the CIRRUS Switch for CIRRUS transactions.
III. Licensee desires to become a corresponding member of CIRRUS
("Corresponding Member") through sponsorship by MPS, and to route CIRRUS
transactions to and from MPS.
NOW, THEREFORE, in consideration of the foregoing recitals and of mutual
promises hereinafter set forth, the parties agree as follows:
A. DEFINITIONS
For the purposes of this Agreement, the following terms shall mean:
BY-LAWS means the By-Laws of CIRRUS as amended from time to time.
CIRRUS DOCUMENTATION means the By-Laws, Operating Rules, Identification
Standards Manual, and other rules, regulations and procedures determined by
MPS to be relevant to and affecting the Gateway Services from time to time.
CIRRUS SWITCH means the computer-based system provided by CIRRUS in
accordance with the CIRRUS Operating Rules.
CORRESPONDING MEMBER CENTER ("CMC") means the processing center directly
connected to MPS, which could be the Licensee's data center, MPS or a third
party processor.
IDENTIFICATION STANDARDS MANUAL means the CIRRUS Identification Standards
Manual as amended from time to time.
MEMBER means a a Principal Member or Corresponding Member of CIRRUS, as those
terms are defined in the By-Laws.
OPERATING RULES means the Operating Rules of CIRRUS as amended from time to
time.
Except for the terms defined above, the capitalized terms herein shall have
the same meanings as ascribed to them in the Agreement or the Definitions and
General Services Addendum. In the event of a conflict between the Agreement
and this Addendum, this Addendum shall control.
B. TERM
The term of this Addendum shall commence on October 1, 1998, and shall
continue for a term of _______ year(s) from the 1st day of the calendar month
following the above date or the date MPS has received notice from CIRRUS of
its acceptance of Licensee as a Corresponding Member or the date of
Licensee's conversion to MPS for Gateway Services ("Initial Term") whichever
event shall later occur. Except as hereafter provided, unless either party
gives notice to the other party at least 120 days prior to the expiration of
any term, the Agreement and this Addendum shall be automatically extended for
additional periods equal to the Initial Term.
C. SERVICES AND FEES
Gateway Services shall mean the data processing systems and procedures
provided by MPS to facilitate ATM sharing between Licensee and/or other
CIRRUS Members. Licensee's CIRRUS transactions received from the CIRRUS
Switch or other MPS facilities are routed to the Licensee's CMC for
authorization or, optionally, are authorized using MPS stand-in processing
facilities. Other Members' transactions initiated at Licensee's terminals
and received by MPS from Licensee's CMC are routed to the CIRRUS Switch or,
at the option of MPS, routed directly to another Member.
MPS is the message processing entity positioned between the Licensee and the
CIRRUS Switch or other Members. The transaction record format between the
Licensee's CMC and MPS will be the MPS version of ANSI X9.2 or such other
format as may be mutually agreed upon between MPS and Licensee.
Licensee agrees to pay the following fees for the Gateway Services set forth
below:
1) Set Up Fee $500
2) Disconnect Fee $500
1-BV
2) Monthly Assessment Fee $150/month plus the current
monthly fee specified by
CIRRUS for a single non
bank holding company
Corresponding Member (as
also referenced in Section
C.6)
3) Adjustment Fee
This fee applies to every CIRRUS
adjustment submitted by or received
by MPS on behalf of Licensee
-- Adjustment fee $5.00/adjustment (plus
current CIRRUS adjustment
fee)
4) Base Licensee Transaction Fee (Paid by
Licensee each time Licensee's cardholder
uses a terminal of a Member for a CIRRUS
transaction) excluding any interchange
surcharge fee charged by CIRRUS which will
be added to this base fee and assessed
accordingly
-- Issuer Transaction Fee (Applicable CIRRUS issuer
interchange fee plus CIRRUS
Switch fee plus $.07)/
transaction
5) Documentation Fees
-- CIRRUS Documentation $75/copy
-- Amendments/Supplements $50/copy
6) CIRRUS Fees All CIRRUS fees,
assessments, and penalties
(excluding the monthly
CIRRUS Corresponding Member
fee, CIRRUS adjustment fees,
CIRRUS Issuer Switch fees
and CIRRUS interchange fees
which are included as part
of the fees charged to
Licensee under Sections C.1
through C.5)
Licensee acknowledges and agrees that CIRRUS will pay MPS interchange fees
for all Licensee's CIRRUS acquirer transactions. MPS will pay Licensee the
applicable CIRRUS acquirer interchanger fee each time a CIRRUS transaction by
a cardholder of another Member is authorized and completed or denied on a
terminal of Licensee provided CIRRUS pays MPS for such transactions.
Licensee agrees to pay MPS $.07 per every Licensee's acquirer transaction
processed by MPS in connection with these Gateway Services. All interchange
fees listed in this paragraph will be reduced by the Plus System, Inc.
acquirer fee as specified by Plus System, Inc. for a transaction processed
through the Plus System, Inc./CIRRUS common interface switch and by any
applicable gateway transaction fee assessed to MPS by CIRRUS in connection
with these CIRRUS acquirer transactions.
D. GENERAL PROVISIONS
1) MPS will sponsor Licensee as a Corresponding Member of CIRRUS in
accordance with the procedures set out in the CIRRUS By-Laws and Operating
Rules.
2) Licensee acknowledges and hereby agrees that MPS may choose the "least
cost method" of routing Licensee's CIRRUS transactions initiated on terminals
of other MPS customers having similar "least cost method" arrangements with
MPS. Conversely, or, if Licensee does not have any CIRRUS cardholders,
Licensee also agrees to accept lesser interchange fees for CIRRUS
transactions initiated on its terminals by cardholders of other MPS
customers which have similar "least cost method" arrangements with MPS. If
MPS chooses to use the "least cost method," MPS will make available the
applicable rates from time to time.
3) Licensee hereby agrees to take all steps as may reasonably be necessary
to settle with MPS for CIRRUS transactions involving its cardholders and its
terminals.
4) MPS will provide Licensee within 30 days of the effective date of this
Addendum a copy of the CIRRUS Documentation in effect on the date of this
Agreement. Licensee also understands that such documentation may be amended
from time to time. Licensee agrees to review the CIRRUS Documentation upon
receipt thereof and to abide by and fully comply with the CIRRUS
Documentation as may be in effect from time to time, and to perform and
fulfill any and all obligations and responsibilities, and discharge any and
all duties and liabilities, relating to MPS, CIRRUS or its Members to which
it may be subject in accordance with such CIRRUS Documentation, or
resolutions adopted by the CIRRUS Board of Directors, or which may arise in
any other manner or from any other source related to the Gateway
2-BV
services.
5) Licensee agrees that, upon request by MPS, it will periodically provide
to MPS certification in writing of its compliance with all CIRRUS Operating
Rules applicable to Licensee, or to MPS as sponsor of Licensee, and with the
CIRRUS Identification Standards Manual. On or before 30 days following the
date of this Addendum, and on or before October 18 of each calendar year,
Licensee shall provide to MPS an audit of its outstanding cards and a
certificate of its card count in accordance with the Operating Rules.
6) Licensee will provide personnel, one of whom shall be a management level
technical interface person, to monitor, oversee and maintain its
participation in CIRRUS. From time to time, MPS will require communication
with Licensee's personnel, and Licensee agrees to provide names, telephone
number(s), and schedules of such personnel throughout the period of the
Licensee's Corresponding Membership in CIRRUS.
7) MPS will make available to Licensee activity files in MPS format of its
CIRRUS transactions, unless similar information is provided by MPS through
other services provided to Licensee.
8) MPS will not provide: (i) routing of activity files received from CIRRUS
to Licensee; (ii) implementation of any of Licensee's BINs at CIRRUS; (iii)
paper based adjustments; or (iv) any other files or reports not specifically
described above.
9) Licensee agrees to allow the auditors of MPS or CIRRUS to review the
files held and procedures followed by Licensee in connection with the Gateway
Services.
10) Licensee agrees to be responsible for all direct and indirect costs
(including but not limited to those incurred by MPS) in connection with
and/or related to Licensee's conversion from MPS at the termination of this
Addendum and/or related to any conversion by Licensee in connection with its
CMC after Licensee's initial conversion to MPS.
E. INDEMNIFICATION
Licensee has or will execute (in addition to this Addendum) the CIRRUS
SYSTEM, INC. Corresponding Membership Application and Agreement among
Licensee, MPS and CIRRUS. Licensee agrees to be bound by all the terms and
conditions of such agreement, as it may be amended from time to time.
Licensee agrees to pay all fees, assessments and penalties as they are
currently in effect or may be changed from time to time, imposed by CIRRUS,
whether billed directly to Licensee by CIRRUS or through MPS except for any
fees specifically excluded in Section C.6, CIRRUS fees. MPS may allocate any
such fees, fines, assessments or penalties in such manner as it deems
advisable in its sole discretion. Licensee agrees to indemnify and hold
harmless, MPS, its officers, employees, affiliates and agents, from and
against any losses, damages, fees, fines, penalties and expenses, including
reasonable legal and accounting fees and expenses, that MPS, its officers,
employees, affiliates and agents may incur as a result of Licensee's failure
to comply with any provision of the CIRRUS Documentation, the Agreement or
this Addendum or far any other reason in connection with the Gateway Services
provided hereunder, whether incurred by or as a result of the action or
failure to act of MPS or Licensee, or their agents. This indemnification
shall survive the termination of the Agreement and/or this Addendum.
F. MODIFICATION
In the event of any changes or modifications to the Operating Rules which
affect the responsibilities of a Principal Member of CIRRUS, MPS may amend
this Agreement upon 30 days prior written notice to Licensee. MPS may change
the fees and charges at any time upon a minimum of 30 days prior written
notice to Licensee. In the event such change in fees is in excess of the
limit set forth in the Agreement, the Licensee shall have the right to
terminate this Addendum by giving written notice thereof within 30 days after
the date of notice of change in fees and charges from MPS. Simultaneously
therewith, Licensee shall give the necessary notice to CIRRUS of termination
of its membership in CIRRUS as a Corresponding Member of MPS. Termination of
this Addendum shall be effective the later of 30 days from receipt by MPS of
notice of termination, or the effective date of termination as set by CIRRUS,
but in no event later than 6 months from the date of Licensee's notice of
termination.
THE PARTIES ACKNOWLEDGE THAT THE MASTER DATA PROCESSING AGREEMENT BETWEEN
THEM, AS SUPPLEMENTED BY THIS AND OTHER ADDENDA, SET FORTH THE COMPLETE AND
EXCLUSIVE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES PROVIDED
AND UNLESS SPECIFICALLY PROVIDED FOR IN THIS ADDENDUM, THE SERVICES DESCRIBED
HEREIN SHALL NOT INCLUDE ANY OF THE SERVICES OUTLINED IN THE DEFINITIONS AND
GENERAL SERVICES ADDENDUM OR OTHER ADDENDA WHICH MAY BE A PREREQUISITE FOR
THE SERVICES DESCRIBED HEREIN.
3-BV
MIDWEST PAYMENT SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
Date: Nov 30 1998
------------------------------
LICENSEE
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxxx X. Xxxx
--------------------------------
Title: President
------------------------------
Date: 11-30-98
-------------------------------
4-BV
ADDENDUM CU TO MASTER DATA PROCESSING AGREEMENT
PLUS SYSTEM GATEWAY SERVICES -- SPONSORED ATM LICENSEE MEMBER
This Agreement shall be an Addendum to the Master Data Processing Agreement
(the "Agreement"), dated October 1, 1998 between HERITAGE OAKS BANK
("Licensee"), having its principal offices at 000 Xxxxxx Xxxxxx, Xxxx Xxxxxx,
XX 00000, and MIDWEST PAYMENT SYSTEMS, INC. ("MPS").
I. The Fifth Third Bank ("Bank") is a Proprietary Member of PLUS System,
Inc. ("PSI"), in order to provide other depository institutions with access
to the PSI electronic funds transfer network.
II. Bank has contracted with MPS for it to provide the systems, computers
and communications necessary to allow it to interface with the PSI Switch for
PSI transactions.
III. Licensee desires to become a sponsored "ATM Category B Licensee Member"
("Sponsored Member"), as such term is defined in the By-laws and Operating
Regulations, of PSI through sponsorship by Bank, and to route PSI
transactions to and from MPS.
NOW, THEREFORE, in consideration of the foregoing recitals and of mutual
promises hereinafter set forth, the parties agree as follows:
A. DEFINITIONS
For the purposes of this Agreement, the following terms shall mean:
BY-LAWS means the By-Laws of PSI as amended from time to time.
PSI DOCUMENTATION means the By-Laws, Operating Regulations, and other rules,
regulations and procedures identified by MPS to be relevant to and affecting
the Gateway Services from time to time.
PSI SWITCH mean the computer-based system provided by PSI in accordance
with the PSI Operating Regulations.
SPONSORED MEMBER CENTER ("SMC") means the processing center directly
connected to MPS, which could be the Licensee's data center, MPS or a third
party processor.
MEMBER means an eligible organization that is a Proprietary Member or
Sponsored Member of PSI, as those terms are defined in the By-Laws.
OPERATING REGULATIONS means the Operating Regulations of PSI as amended from
time to time.
Except for the terms defined above, the capitalized terms herein shall have
the same meanings as ascribed to them in the Agreement or the Definitions and
General Services Addendum. In the event of a conflict between the Agreement
and this Addendum, this Addendum shall control.
B. TERM
The term of this Addendum shall commence on October 1, 1998, and shall
continue for a term of ______year(s) from the 1st day of the calendar month
following the above date or the date Bank has received notice from PSI of its
acceptance of Licensee as a Sponsored Member or the date of Licensee's
conversion to MPS for Gateway Services ("Initial Term") whichever event shall
later occur. Except as hereafter provided, unless either party gives notice
to the other party at least 120 days prior to the expiration of any term, the
Agreement and this Addendum shall be automatically extended for additional
periods equal to the Initial Term.
C. SERVICES AND FEES
Gateway Services shall mean the data processing systems and procedures
provided by MPS to facilitate ATM sharing between Licensee and/or other PSI
Members. Other Members' transactions initiated at Licensee's terminals and
received by MPS from Licensee's SMC are routed to the PSI Switch or, at the
option of MPS, routed directly to another Member or to a gateway link
connected to the PSI switch.
MPS is the message processing entity positioned between the Licensee and the
PSI Switch or other Members. The transaction record format between the
Licensee's SMC and MPS will be the MPS version of ANSI X9.2 or such other
format as may be mutually agreed upon between MPS and Licensee.
1-CU
Licensee agrees to pay the following fees for the Gateway Services set forth
below:
1) Set Up Fee $500
Disconnect Fee $500
2) Monthly Assessment Fee $150/month plus the current monthly fee specified
by PSI for a non affiliate ATM Category B Licensee Member (as also referenced
in Section C.5)
3) Adjustment Fee
This fee applies to every PSI adjustment submitted by or received by MPS
on behalf of Licensee
-- Adjustment fee $5.00/adjustment (plus current PSI adjustment fee)
4) Documentation Fees
-- PSI Documentation $75/copy
-- Amendments/Supplements $50/copy
5) PSI Fees
All PSI fees, assessments, and penalties (excluding the monthly PSI ATM
Category B Licensee Member fee and PSI adjustment fees which are included as
part of the fees charged to Licensee under Sections C.1 through C.4)
Licensee acknowledges and agrees that PSI shall pay Bank interchange fees for
all Licensee's PSI acquirer transactions. MPS will pay Licensee the
applicable PSI ATM member (acquirer) income fee each time a PSI transaction
by a cardholder of another Member is authorized and completed or denied on a
terminal of Licensee provided PSI pays Bank for such transactions. Licensee
agrees to pay MPS $.07 per every Licensee's acquirer transaction processed by
MPS in connection with these Gateway Services. All income (interchange) fees
listed in this paragraph will be reduced by the PSI acquirer fee as specified
by PSI for a transaction processed through the PSI/CIRRUS Systems, Inc.
common interface switch and by any applicable gateway transaction fee
assessed to MPS or Bank by CIRRUS Systems, Inc. in connection with these PSI
acquirer transactions.
D. GENERAL PROVISIONS
1) MPS will sponsor Licensee as a Sponsored Member of PSI in accordance
with the procedures set out in the PSI By-Laws and Operating Regulations.
2) Licensee acknowledges and hereby agrees that MPS may choose the "least
cost method" of routing Licensee's PSI transactions to other MPS customers
having similar "least cost method" arrangements with MPS. Licensee agrees to
accept lesser interchange fees for PSI transactions initiated on its
terminals by cardholders of other MPS customers which have "least cost method"
arrangements with MPS. If MPS chooses to use the "least cost method," MPS
will make available the applicable rates from time to time.
3) Licensee hereby agrees to take all steps as may reasonably be necessary
to settle with MPS for PSI transactions involving its terminals.
4) MPS will provide Licensee within 30 days of the effective date of this
Addendum a copy of the PSI Documentation in effect on the date of this
Agreement. Licensee also understands that such documentation may be amended
from time to time. Licensee agrees to review the PSI Documentation upon
receipt thereof and to abide by and fully comply with the PSI Documentation as
may be in effect from time to time, and to perform and fulfill any and all
obligations and responsibilities, and discharge any and all duties and
liabilities, relating to MPS, PSI or its Members to which it may be subject
in accordance with such PSI Documentation, or resolutions adopted by the PSI
Board of Directors, or which may arise in any other manner or from any other
source related to the Gateway Services.
5) Licensee agrees that, upon request by MPS, it will periodically provide
to MPS certification in writing of its compliance with all PSI Operating
Regulations applicable to Licensee, or to MPS or Bank as sponsor of Licensee.
6) Licensee will provide personnel, one of whom shall be a management level
technical interface person, to monitor, oversee and maintain its
participation in PSI. From time to time, MPS will require communication with
Licensee's personnel, and Licensee agrees to provide names, telephone
number(s), and schedules of such personnel throughout the period of the
Licensee's Sponsored Membership in PSI.
7) MPS will make available to Licensee activity files in a MPS format of its
PSI transactions, unless similar information is provided by MPS through other
services provided to Licensee.
2-CU
8) MPS will not provide: (i) routing of activity files received from PSI
to Licensee; (ii) paper based adjustments; or (iii) any other files or
reports not specifically described above.
9) Licensee agrees to allow the auditors of MPS or PSI to review the files
held and procedures followed by Licensee in connection with the Gateway
Services.
10) Licensee agrees to be responsible for all direct and indirect costs
(including but not limited to those incurred by MPS) in connection with
and/or related to Licensee's conversion from MPS at the termination of this
Addendum and/or related to any conversion by Licensee in connection with its
SMC after Licensee's initial conversion to MPS.
E. INDEMNIFICATION
Licensee has or will execute (in addition to this Addendum) the Category "B"
ATM Licensee Agreement in PLUS System, Inc. among Licensee, Bank and PSI.
Licensee agrees to be bound by all the terms and conditions of such
agreement, as it may be amended from time to time. Licensee agrees to pay
all fees, fines, penalties and assessments as they are currently in effect or
may be changed from time to time, imposed by PSI, whether billed directly to
Licensee by PSI or through MPS or Bank except for any fees specifically
excluded in Section C.5, PSI fees. MPS, on behalf of itself or Bank, may
allocate any such fees, fines, assessments or penalties in such manner as it
deems advisable in its sole discretion. Licensee agrees to indemnify and
hold harmless, MPS, Bank, their respective officers, employees, affiliates
and agents, from and against any losses, damages, fees, fines, penalties and
expenses, including reasonable legal and accounting fees and expenses, that
MPS, Bank, their respective officers, employees, affiliates and agents may
incur as a result of Licensee's failure to comply with any provision of the
PSI Documentation, the Agreement or this Addendum or for any other reason in
connection with the Gateway Services provided hereunder, whether incurred by
or as a result of the action or failure to act of MPS, Bank or Licensee, or
their agents. This indemnification shall survive the termination of the
Agreement and/or this Addendum.
F. MODIFICATION
In the event of any changes or modifications to the Operating Regulations
which affect the responsibilities of a Proprietary Member of PSI, MPS may
amend this Agreement upon 30 days prior written notice to Licensee. MPS may
change the fees and charges at any time upon a minimum of 30 days prior
written notice to Licensee. In the event such change in fees is in excess of
the limit set forth in the Agreement, the Licensee shall have the right to
terminate this Addendum by giving written notice thereof to MPS within 30
days after the date of notice of change in fees and charges from MPS.
Simultaneously therewith, Licensee shall give the necessary notice to PSI of
termination of its membership in PSI as a Sponsored Member of Bank.
Termination of this Addendum shall be effective the later of 30 days from
receipt by MPS of notice of termination, or the effective date of termination
as set by PSI, but in no event later than 6 months from the date of
Licensee's notice of termination.
THE PARTIES ACKNOWLEDGE THAT THE MASTER DATA PROCESSING AGREEMENT BETWEEN
THEM, AS SUPPLEMENTED BY THIS AND OTHER ADDENDA, SET FORTH THE COMPLETE AND
EXCLUSIVE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES PROVIDED
AND UNLESS SPECIFICALLY PROVIDED FOR IN THIS ADDENDUM, THE SERVICES DESCRIBED
HEREIN SHALL NOT INCLUDE ANY OF THE SERVICES OUTLINED IN THE DEFINITIONS AND
GENERAL SERVICES ADDENDUM OR OTHER ADDENDA WHICH MAY BE A PREREQUISITE FOR
THE SERVICES DESCRIBED HEREIN.
MIDWEST PAYMENT SERVICES, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
---------------------------
Title: Senior Vice President
--------------------------
Date: Nov 30 1998
--------------------------
LICENSEE: HERITAGE OAKS BANK
By:/s/ Xxxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxxx X. Xxxx
---------------------------
Title: President
--------------------------
Date: 11-30-98
---------------------------
3-CU
0196-998
ADDENDUM FS TO MASTER DATA PROCESSING AGREEMENT
VISA CHECK CARD PROGRAM SERVICES
This Agreement shall be an Addendum to the Master Data Processing Agreement
("the Agreement"), dated October 1, 1998 between HERITAGE OAKS BANK
("Licensee"), having its principal offices at 000 Xxxxxxx Xxxxxx, Xxxx
Xxxxxx, XX 00000, and MIDWEST PAYMENT SYSTEMS, INC. ("MPS").
I. Fifth Third Bank of Cincinnati, Ohio ("Fifth Third") is a Member of Visa
U.S.A. ("VISA") and provides other depository institutions access to VisaNet
as defined in the Operating Rules.
II. MPS has the systems, computers and communications necessary to allow it
to interface with the VISA Switch for VisaNet transactions.
III. Licensee desires to use the systems, computers, and communication
facilities of MPS to interface with the VISA Switch and other facilities
connected to MPS to provide access (in conjunction with MPS standards) to
VisaNet for certain of its customers' deposit accounts through Licensee's
designated VISA plastics (cards) and to provide special card and account
processing as described under Check Card Program Services.
IV. Licensee warrants that it is a Member of VISA as this term is defined in
the By-Laws.
NOW, THEREFORE, in consideration of the foregoing recitals and of mutual
promises hereinafter set forth, the parties agree as follows:
A. DEFINITIONS
For the purposes of this Agreement, the following terms shall mean:
BY-LAWS means the Visa U.S.A. Inc. By-Laws/Operating Regulations as amended
from time to time.
MEMBER means an organization that is a Member, or other entity as those terms
are defined in the By-Laws and who is authorized to participate in VisaNet.
OPERATING RULES means the Visa U.S.A. Inc. By-Laws/Operating Regulations and
the Visa International Operating Regulations as amended from time to time.
VISA DOCUMENTATION means the sections of the By-Laws, Operating Rules,
Operating Rules, and other rules, regulations and procedures (including MPS
standards) determined by MPS to be relevant to and affecting the Check Card
Program Services from time to time.
VISA SWITCH means the computer-based system provided by VISA in accordance
with the Operating Rules for VisaNet.
Except for the terms defined above, the capitalized terms herein shall have
the same meanings as ascribed to them in the Agreement or the Definitions and
General Services Addendum. In the event of a conflict between the Agreement and
this Addendum, this Addendum shall control.
B. TERM
The term of this Addendum shall commence on October 1, 1998, and shall
continue for a term of ____ year(s) from the 1st day of the calendar month
following the above date or the date MPS has received notice from VISA of its
acceptance of Licensee as a Member or the date of Licensee's conversion to
MPS for Check Card Program Services ("Initial Term") whichever event shall
later occur. Except as hereafter provided, unless either party gives notice
to the other party at least 120 days prior to the expiration of any term, the
Agreement and this Addendum shall be automatically extended for additional
periods equal to the Initial Term.
C. SERVICES AND FEES
CHECK CARD PROGRAM SERVICES shall mean the data processing systems and
procedures provided by MPS to facilitate Licensee's card authorization and
settlement in VisaNet for Licensee's specified VISA cards with the consequent
funds utilized being debited from Licensee's designated customers' deposit
accoujts. Licensee's VISA cards may additionally be processed under other
services contracted through MPS. Licensee's VisaNet transactions received
from the VISA Switch or other MPS facilities or facilities connected to MPS
are authorized using card management and card processing facilities according
to MPS standards. Authorization can occur at VisaNet if the authorization
link between MPS and the VISA Switch is inoperational.
Licensee agrees to pay MPS the following fees for the Check Card Program
Services as set forth below:
1) Set Up Fee $5,000
2) Card Management file conversion (Optional) $2,000
3) Transaction Fees
a) electronic authorization fee $.10/authorization
b) operator assisted authorization fee $.65/authorization
c) remote item posting $.11/item
c) issuer switch/access fee $.026/authorization
4) Card Management (Cluster) Services
a) Plastic debit or credit card fee $.05/cluster/month
1-FS
b) Account file residency (fee assessed for
credit and deposit accounts) $.11/account/month
c) Credit account statement-to-date fee
CRT lookup for statement-to-date
activity of credit account $.09/credit account/month
5) Credit account monthly maintenance fee $.07/credit account/month
6) Credit Card embossing and encoding fees
a) Program Setup $225.00
b) Card Production $0.60/card
Card production includes:
-Complete inventory and control of plastics
-Card embossing, tipping, and encoding
-Card inserting and mailing
-MPS standard forms and envelopes
-Postage expense additional
c) Premailer Inserting/Mailing $0.15/Premailer
-Includes MPS standard forms and envelopes
-Postage expense additional
d) Special Card Handling $5.00/card
Any special card handling outside the normal processing procedures
(i.e., card pulls, rushes, etc.) will incur a special card handling
fee.
e) Graphic Reproduction (Graphix) Quoted
Graphic Reproduction services are available including the
institution's name on the front of the card and ATM logos on the
back. These fees will be provided as necessary.
7) Statement Printing Fee (Optional) $0.15/statement
8) Chargeback/Representment Fee $5.00/chargeback
or representment
9) Draft Retrieval Requests $2.00/request
Each draft retrieval request received by MPS on behalf of the Licensee will
be assessed the draft retrieval request fee.
This fee is in addition to any fee assessed by VISA.
10) Online Adjustment System Fees
a) File residency $100.00/month
b) CRT file updates $.10/update
c) File setup $400
11) Operational Support Standard Hourly Rate
Including any time required by MPS personnel to support Licensee with lost
and stolen processing in connection with Licensee's VISA cards or
Licensee's customers.
Notwithstanding the foregoing, the minimum monthly fee payable to MPS for the
Check Card Program Services set forth in this Addendum shall be $200.00.
12) Other Services Quoted
D. GENERAL PROVISIONS
1) MPS will process Licensee as a Member in accordance with the procedures
set out in the By-Laws and Operating Rules and VISA Documentation and this
Addendum.
2) Licensee assumes all responsibility for collecting funds associated with
all use of Licensee's VISA cards.
3) Licensee hereby agrees to take all steps as may be necessary to settle
with MPS for VisaNet transactions involving its cardholders. As part of this
settlement, Licensee agrees to maintain at Fifth Third a clearing account
which will be a non-interest bearing account. Licensee also agrees to
maintain adequate collected funds in this account to cover daily settlement
(involving the use of Licensee's VISA cards) assessed by MPS.
2-FS
4) Licensee understands that VISA Documentation may be amended from time to
time. Licensee agrees to review the VISA Documentation and to abide by and
fully comply with the VISA Documentation as may be in effect from time to
time, and to perform and fulfill any and all obligations and
responsibilities, and discharge any and all duties and liabilities, relating
to MPS, VISA or its Members to which it may be subject in accordance with
such VISA Documentation, By-Laws, Operating Rules, or resolutions adopted by
the VISA Board of Directors, or which may arise in any other manner or from
any other source related to the Check Card Program Services.
5) Licensee agrees that, upon request by MPS, it will periodically provide
to MPS certification in writing of its compliance with all VISA Operating
Rules applicable to Licensee, or to MPS as processor for Licensee, and with
the VISA Documentation.
6) MPS will make available to Licensee activity files in a MPS format
reflecting customer's card and account processing.
7) MPS will not provide: (i) routing of activity files received from VISA to
Licensee; (ii) any other files or reports not specifically described above.
8) Licensee will maintain a non-interest bearing checking account which can be
debited by MPS to settle funds for Licensee's VISA cards which don't have a
corresponding deposit account.
9) Licensee is solely responsible for its participation; and for any liability
arising from its VISA membership.
10) Licensee agrees to be responsible for all direct and indirect costs
(including but not limited to those incurred by MPS) in connection with and/or
related to Licensee's conversion from MPS at the termination of this Addendum
and/or related to any conversion by Licensee.
11) Licensee shall be responsible for the establishment, maintenance and
written notification to MPS of cardholder authorization limits, and other
terms and conditions applicable to transactions effected in accordance with
Licensee's cardholder agreements.
12) Should Customer give notice of termination to MPS at any time, Customer
warrants that both before entering into any agreement with any third party
fort the Services provided to Customer by MPS as specified in this Agreement
(including all exhibits and Addenda hereto and all documents and materials
referenced herein), MPS shall have the right of first refusal of entering into
agreements with Customer for all such Services under the same terms and
conditions (except for the length of the term, which shall not be less than
the length of the term of the Agreement for which Customer is givng
termination notice to MPS) in lieu of Customer entering into such agreement
with a third party.
E. SERVICES AND EXPENSES NOT PROVIDED BY MPS
Certain services and expenses will be the sole responsibility of Licensee and
include but are not limited to the following:
1) Costs incurred by MPS for contracting Licensee in performing the Services.
2) All postage costs associated with the Services provided herein.
3) All costs associated with the purchase, design, and creation of the cards.
4) Data entry of cardholder and/or account information.
5) All forms and envelopes (minimum postage expense is cost for one ounce of
U.S. first class postage per unit).
6) Communication lines to MPS for remote processing.
7) Communication and hardware costs, individual terminals or modems.
8) All VISA fees relating to Licensee's processing plan and/or connection
with Licensee's participation in VisaNet and with VISA.
9) Settlement costs for interchange. Licensee will provide and pay standard
VISA Interchange fees relative to Licensee's cardholder and merchant
transaction volume.
10) All legal compliance and Operating Rules and By-Laws compliance for
Licensee's cardholders and merchants.
11) Additional exception processing services.
12) External costs for interchange settlement.
13) Physical magnetic tape or disk file output for Licensee's use.
14) Costs associated with RJE.
3-FS
F. INDEMNIFICATION
Licensee agrees to pay all fees, assessments and penalties as they are
currently in effect or may be changed from time to time, imposed by VISA,
whether billed directly to Licensee by VISA or through MPS or Fifth Third.
MPS may allocate any such fees, fines, assessments or penalties in such
manner as it deems advisable in its sole discretion. Licensee agrees to
indemnify and hold harmless, MPS, its officers, employees, affiliates and
agents, from and against any losses, damages, fees, fines, penalties and
expenses, including reasonable legal and accounting fees and expenses, that
MPS, its officers, employees, affiliates and agents may incur as a result of
Licensee's failure to comply with any provision of the VISA Documentation,
the Agreement or this Addendum or for any other reason in connection with the
Check Card Program Services provided hereunder, whether incurred by or as a
result of the action or failure to act of MPS or Licensee, or their agents.
This indemnification shall survive the termination of the Agreement and/or
this addendum.
G. MODIFICATION
In the event of any changes or modifications to the VISA Documentation which
affect the responsibilities of a Member, MPS may amend this Agreement upon 30
days prior written notice to Licensee. MPS may change the fees and charges at
any time upon a minimum of 30 days prior written notice to Licensee. In the
event such change in fees is in excess of the limit set forth in the
Agreement, the Licensee shall have the right to terminate this Addendum by
giving written notice thereof within 30 days after the date of notice of
change in fees and charges from MPS. Simultaneously therewith, Licensee shall
give the necessary notice to VISA of termination or change in sponsorship of
its membership in VISA as a Member. Termination of this Addendum shall be
effective the later of 30 days from receipt by MPS of notice of termination,
or the effective date of termination as set by VISA, but in no event later
than 6 months from the date of Licensee's notice of termination.
THE PARTIES ACKNOWLEDGES THAT THE MASTER DATA PROCESSING AGREEMENT BETWEEN
THEM, AS SUPPLEMENTED BY THIS AND OTHER ADDENDA, SET FORTH THE COMPLETE AND
EXCLUSIVE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES PROVIDED
AND UNLESS SPECIFICALLY PROVIDED FOR IN THIS ADDENDUM, THE SERVICES DESCRIBED
HEREIN SHALL NOT INCLUDE ANY OF THE SERVICES OUTLINED IN THE DEFINITIONS AND
GENERAL SERVICES ADDENDUM OR OTHER ADDENDA WHICH MAY BE A PREREQUISITE FOR
THE SERVICES DESCRIBED HEREIN.
MIDWEST PAYMENT SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
-------------------------------------
Title: Senior Vice President
-------------------------------------
Date: Nov. 30, 1998
-------------------------------------
LICENSEE:
By: /s/ XXXXXXXX X. XXXX
-------------------------------------
Name: Xxxxxxxx X. Xxxx
-------------------------------------
Title: President
-------------------------------------
Date: 11-30-98
-------------------------------------
4-FS
0192-998
ADDENDUM FU TO MASTER DATA PROCESSING AGREEMENT
VISA ATM NETWORK GATEWAY SERVICES - ATM ACQUIRER MEMBER
This Agreement shall be an Addendum to the Master Data Processing Agreement
(the "Agreement"), dated October 1, 1998 between HERITAGE OAKS BANK
("Licensee"), having its principal offices at 000 Xxxxxxx Xxxxxx, Xxxx
Xxxxxx, XX 00000, and MIDWEST PAYMENT SYSTEMS, INC. ("MPS").
I. Fifth Third Bank of Cincinnati, Ohio ("Fifth Third"), is a Member of
Visa U.S.A. Inc. ("VISA") and provides other depository institutions access to
the Visa ATM Network ("VAN").
II. MPS has the systems, computers and communications necessary to allow it
to interface with the VISA Switch for VAN transactions.
III. Licensee desires to use the systems, computers, and communication
facilities of MPS to interface with the VISA Switch to allow the
participation in VAN of its cash disbursement automated teller machines
and/or scrip dispensers and/or other devices (collectively referred to as
"ATM").
IV. Licensee warrants that it has VISA approval to participate in VAN.
NOW, THEREFORE, in consideration of the foregoing recitals and of mutual
promises hereinafter set forth, the parties agree as follows:
A. DEFINITIONS
For the purposes of this Agreement, the following terms shall mean:
BY-LAWS means the Visa U.S.A. Inc. By-Laws/Operating Regulations as amended
from time to time.
CORRESPONDING MEMBER CENTER ("CMC") means the processing center directly
connected to MPS, which should be the Licensee's data center, MPS or a third
party processor.
MEMBER means an organization that is a Member, or other entity as those terms
are defined in the By-Laws and who is authorized to participate in VAN.
OPERATING RULES means the Visa U.S.A. Inc. By-Laws/Operating Regulations and
the Visa International Operating Regulations as amended from time to time.
VISA DOCUMENTATION means the sections of the By-Laws, Operating Rules, and
other rules, regulations and procedures (including MPS standards) determined
by MPS to be relevant to and affecting the Gateway Services from time to time.
VISA SWITCH means the computer-based system provided by VISA in accordance
with the Operating Rules for VAN.
Except for the terms defined above, the capitalized terms herein shall have
the same meanings as ascribed to them in the Agreement or the Definitions and
General Services Addendum. In the event of a conflict between the Agreement
and this Addendum, this Addendum shall control.
B. TERM
The term of this Addendum shall commence on October 1, 1998, and shall
continue for a term of _______ years from the 1st day of the calendar month
following the above date or the date MPS has received notice from VISA of its
acceptance of Licensee as a Member or the date of Licensee's conversion to
MPS for Gateway Services ("Initial Term") whichever event shall later occur.
Except as hereafter provided, unless either party gives notice to the other
party at least 120 days prior to the expiration of any term, the Agreement
and this Addendum shall be automatically extended for additional periods
equal to the Initial Term.
C. SERVICES AND FEES
GATEWAY SERVICES shall mean the data processing systems and procedures
provided by MPS to facilitate ATM sharing in VAN between Licensee and/or
other Members. Other Members' VAN transactions initiated at Licensee's
terminals and received by MPS from Licensee's CMC are routed to the VISA
Switch or, at the option of MPS, routed directly to another Member.
1-FU
MPS is the message processing entity positioned between the Licensee and the
VISA Switch or other Members. The transaction record format between the
Licensee's CMS and MPS will be the MPS version of ANSI X9.2 or such other
format as may be mutually agreed upon between MPS and Licensee.
Licensee agrees to pay the following fees for the Gateway Services set forth
below:
1) Set Up Fee $500
Disconnect Fee $500
2) Monthly Assessment Fee $150/month
3) Documentation Fee
- VISA Documentation $75/copy
- Amendments/Supplements $50/copy
4) Adjustment Fee $5.00/adjustment (plus current VAN adjusted fees)
This fee applies to every VAN adjustment submitted by or received
by MPS on behalf of Member institutions
5) VAN Fees All VAN and/or VISA fees, assessments, and penalties (excluding
VAN adjustment fees which are included as part of the fees charged to
Licensee under Sections C.1 through C.4)
Licensee acknowledges and agrees that VISA will pay interchange ad other fees
to MPS or Fifth Third for all Licensee's VAN acquirer transactions. MPS will
pay Licensee the applicable Van acquirer interchange fee each time a VAN
transaction by a cardholder of another Member is authorized and completed or
denied on a terminal of Licensee provided VISA pays MPS for such
transactions. Licensee agrees to pay MPS $.07 per every Licensee's acquirer
transaction processed by MPS in connection with the Gateway Services. All
interchange fees in this paragraph shall be reduced by any third party switch
or surcharge fee assessed to MPS or Fifth Third.
D. GENERAL PROVISIONS
1) MPS will process Licensee as a Member in accordance with the procedures
set out in the By-Laws and Operating Rules and MPS's standards.
2) Licensee agrees to accept lesser interchange fees for VAN transactions
initiated on its terminals by cardholders of other MPS customers which have
similar "least cost method" arrangements with MPS. If MPS chooses to use the
"least cost method," MPS will make available the applicable rates from time to
time.
3) Licensee hereby agrees to take all steps as may reasonably be necessary
to settle with MPS for VAN transactions involving its terminals.
4) MPS will provide Licensee within 30 days of the effective date of this
Addendum a copy of the VISA Documentation in effect on the date of this
Agreement. Licensee also understands that such documentation may be amended
from time to time. Licensee agrees to review the VISA Documentation upon
receipt thereof and to abide by and fully comply with the VISA Documentation
as may be in effect from time to time, and to perform and fulfill any and all
obligations and responsibilities, and discharge any and all duties and
liabilities, relating to MPS, VISA or its Members to which it may be subject
in accordance with such VISA documentation, By-Laws, Operating Rules, or
resolutions adopted by the VISA Board of Directors, or which may arise in any
other manner or from any other source related to the Gateway Services.
5) Licensee agrees that, upon request of MPS, it will periodically provide
to MPS certification in writing of its compliance with all VISA Operating
Rules applicable to Licensee, or to MPS as processor for Licensee, and with
the VISA Documentation.
6) License will provide personnel, one of whom shall be a management level
technical interface person, to monitor, oversee and maintain its
participation in VAN. Form time to time, MPS will require communication with
Licensee's personnel, and Licensee agrees to provide names, telephone
number(s), and schedules of such personnel throughout the period of the
Licensee's membership in VAN.
7) MPS will make available to Licensee activity files in a MPS format of its
VAN transactions, unless similar information is provided by MPS through other
services provided to Licensee.
2-FU
8) MPS will not provide: (i) routing of activity files received from VISA to
Licensee; (ii) paper based adjustments; or (iii) any other files or reports
not specifically described above.
9) Licensee agrees to allow the auditors of MPS or VISA to review the files
held and procedures followed by Licensee in connection with the Gateway
Services.
10) Licensee agrees to be responsible for all direct and indirect costs
(including but not limited to those incurred by MPS) in connection with
and/or related to Licensee's conversion from MPS at the termination of this
Addendum and/or related to any conversion by Licensee in connection with its
CMC after Licensee's initial conversion to MPS.
E. INDEMNIFICATION
Licensee has or will execute the Visa ATM Acquirer Compliance Form and the
Visa ATM Service Confirmation Form and other required VAN forms which may
change from time to time with VISA. Licensee agrees to pay all fees,
assessments and penalties as they are currently in effect or may be changed
from time to time, imposed by VISA, whether billed directly to Licensee by
VISA or through MPS or Fifth Third. MPS may allocate any such fees, fines,
assessments or penalties in such manner as it deems advisable in its sole
discretion. Licensee agrees to indemnify and hold harmless, MPS, its
officers, employees, affiliates and agents, from and against any losses,
damages, fees, fines, penalties and expenses, including reasonable legal and
accounting fees and expenses, that MPS, its officers, employees, affiliates
and agents may incur as a result of Licensee's failure to comply with any
provision of the VISA Documentation, the Agreement or this Addendum or for
any other reason in connection with the Gateway Services provided hereunder,
whether incurred by or as a result of the action or failure of the act of MPS
or Licensee, or their agents. This indemnification shall survive the
termination of the Agreement and/or to this Addendum.
F. MODIFICATION
In the event of any changes or modifications to the VISA Documentation which
affect the responsibilities of a Member, MPS may amend this Agreement upon 30
days prior written notice to Licensee. MPS may change the fees and charges at
any time upon a minimum of 30 days prior written notice to Licensee. In the
event such change in fees is in excess of the limit set forth in the
Agreement, the Licensee shall have the right to terminate this Addendum by
giving written notice thereof within 30 days after the date of notice of
change in fees and charges from MPS. Simultaneously therewith, Licensee shall
give the necessary notice to VISA of termination of its membership in VISA as
a Member. Termination of this Addendum shall be effective the later of 30
days from receipt by MPS of notice of termination, or the effective date of
termination as set by VISA, but in no event later than 6 months from the date
of Licensee's notice of termination.
THE PARTIES ACKNOWLEDGE THAT THE MASTER DATA PROCESSING AGREEMENT BETWEEN
THEM, AS SUPPLEMENTED BY THIS AND OTHER ADDENDA, SET FORTH THE COMPLETE AND
EXCLUSIVE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES PROVIDED
AND UNLESS SPECIFICALLY PROVIDED FOR IN THIS ADDENDUM, THE SERVICES DESCRIBED
HEREIN SHALL NOT INCLUDE ANY OF THE SERVICES OUTLINED IN THE DEFINITIONS AND
GENERAL SERVICES ADDENDUM OR OTHER ADDENDA WHICH MAY BE A PREREQUISITE FOR
THE SERVICES DESCRIBED HEREIN.
MIDWEST PAYMENT SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXXXXX
-----------------------------------
Name: XXXXX X. XXXXXXXXX
---------------------------------
Title: SENIOR VICE PRESIDENT
--------------------------------
Date: NOV 30, 1998
---------------------------------
LICENSEE: HERITAGE OAKS BANK
By: /s/ XXXXXXXX X. XXXX
-----------------------------------
Name: XXXXXXXX X. XXXX
---------------------------------
Title: PRESIDENT
--------------------------------
Date: 11-30-1998
---------------------------------
3-FU
ADDENDUM KU TO MASTER DATA PROCESSING AGREEMENT
DISCOVER CARD GATEWAY SERVICES -- SPONSORED ATM ACQUIRER MEMBER
This Agreement shall be an Addendum to the Master Data Processing Agreement
(the "Agreement"), dated October 1, 1998 between HERITAGE OAKS BANK
("Licensee"), having its principal offices at 000 Xxxxxxx Xxxxxx, Xxxx
Xxxxxx, XX 00000, and MIDWEST PAYMENT SYSTEMS, INC. ("MPS").
I. MPS has entered into an agreement with Discover Card Services, Inc.
and/or NOVUS Services, Inc. (collectively and individually "DCSI"), where MPS
can make available to DCSI cardholders certain ATMs operated or accessed
through MPS systems, computers, and communications to obtain cash.
II. MPS has the systems, computers and communications necessary to allow it
to interface with the DCSI Switch to accept credit and automated teller
machine access cards issued by DCSI ("Discover Cards").
III. License desires to use the systems, computers, and communication
facilities of MPS to interface with the DCSI Switch to allow Discover Card
transactions at its cash disbursement automated teller machines and/or scrip
dispensers and/or other devices (collectively referred to as "ATMs").
IV. MPS is willing to provide Gateway Services to Licensee, as more fully
described herein, subject to the following terms and conditions.
NOW, THEREFORE, in consideration of the foregoing recitals and of mutual
promises hereinafter set forth, the parties agree as follows:
A. DEFINITIONS
For the purposes of this Agreement, the following terms shall mean:
AGENT PROCESSOR CENTER ("APC") means MPS, which is the processing center
directly connected to the DCSI Switch.
CORRESPONDING MEMBER CENTER ("CMC") means the processing center directly
connected to MPS, which could be the Licensee's data center, MPS or a third
party processor.
DIRECT MEMBER is an institution (including MPS) which has entered into an
agreement with DCSI to accept Discover Card transactions at ATMs owned,
operated, controlled, or gatewayed by it through the APC.
DCSI DOCUMENTATION means the Operating Rules and other rules, regulations and
procedures (including MPS standards) determined by MPS to be relevant to and
affecting the Gateway Services from time to time.
DCSI SWITCH means the computer-based system provided by DCSI to interface
electronically with Members' ATMs or their files for the purpose of
processing Discover Card transactions.
MEMBER is a Direct and/or Sponsored Member.
OPERATING RULES means MPS's regulations and standards determined to be
relevant to and affecting Gateway Services which may change from time to time
and the procedures set out in MPS's agreement with DCSI to allow MPS to
provide ATM access to Discover Cards.
SPONSORED MEMBER is an institution which can accept Discover Card
transactions at ATMs owned, operated, controlled, or gatewayed by it through
the APC because of its sponsorship through a Direct Member and subsequent
authorization by DCSI to be a Participant, as such term is defined in the
agreement between MPS and DCSI to provide ATM access to Discover Cards.
Except for the terms defined above, the capitalized terms herein shall have
the same meanings as ascribed to them in the Agreement or the Definitions and
General Services Addendum. In the event of a conflict between the Agreement
and this Addendum, this Addendum shall control.
B. TERM
The term of this Addendum shall commence on October 1, 1998, and shall
continue for a term of _____ years or until the termination of the agreement
between MPS and DCSI to provide ATM access to Discover Cards (whichever event
shall earlier occur) from the 1st day of the calendar month following the
above date or the date of DCSI's acceptance of Licensee as a Sponsored
Member through MPS as the Direct Member or the date of Licensee's conversion
to MPS for Gateway Services ("Initial Term"), whichever event shall later
occur. Except as hereafter provided, unless either party gives notice to the
other party at least 120 days prior to the expiration of any term, the
Agreement and this Addendum shall be automatically extended for additional
periods equal to the Initial Term.
1-KU
C. SERVICES AND FEES
GATEWAY SERVICES shall mean the data processing systems and procedures provided
by MPS to facilitate ATM sharing between Licensee and Discover Cards.
Discover Card transactions initiated at Licensee's terminals and received by
MPS from Licensee's CMC are routed to the DCSI Switch.
MPS is the message processing entity positioned between the Licensee and the
DCSI Switch or other Members. The transaction record format between the
Licensee's CMC and MPS will be the MPS version of ANSI X9.2 or such other
format as may be mutually agreed upon between MPS and Licensee.
Licensee agrees to pay the following fees for the Gateway Services set forth
below:
1) Set Up Fee $500
Disconnect Fee $500
2) Monthly Assessment Fee $150/month
3) Documentation Fees
-DCSI Documentation $75/copy
-Amendments/Supplements $50/copy
4) Adjustments $5.00/adjustment
This fee applies to every DCSI adjustment submitted by or received by MPS on
behalf of Member Institutions.
Licensee acknowledges and agrees that DCSI will pay interchange and other fees
to MPS for all Discover Card transactions and in turn MPS will pay Licensee
$.65 each time a Discover Card cash withdrawal transaction is authorized and
completed on an ATM of Licensee, $.25 each time a Discover Card inquiry
transaction is authorized and completed on an ATM of Licensee and $.25 each
time a Discover Card transaction is denied on an ATM of Licensee provided
DCSI pays MPS for such transactions. Licensee agrees to pay MPS $.07 per
every DCSI acquirer transaction processed by MPS in connection with the
Gateway Services.
D. GENERAL PROVISIONS
1) MPS will process Licensee as a Sponsored Member in accordance with the
procedures set out in the Operating Rules and its agreement with DCSI.
2) Licensee hereby agrees to take all steps necessary to settle with MPS for
Discover Card transactions involving its terminals.
3) MPS will provide Licensee within 30 days of the effective date of this
Addendum a copy of the DCSI Documentation in effect on the date of this
Agreement. Licensee agrees to abide by and fully comply with the DCSI
Documentation as may be in effect from time to time, and to perform and
fulfill any and all obligations and responsibilities, and discharge any and
all duties and liabilities, relating to MPS, DCSI or Members to which it may
be subject in accordance with such DCSI Documentation, Operating Rules, or
resolutions adopted by the DCSI Board of Directors, or which may arise in any
other manner or from any other source related to the Gateway Services.
4) Licensee agrees that, upon request by MPS, it will periodically provide
to MPS certification in writing of its compliance with all Operating Rules
applicable to Licensee, or to MPS as processor and sponsor for Licensee, and
with DCSI Documentation.
5) Licensee will provide personnel, one of whom shall be a management level
technical interface person, to monitor, oversee and maintain its
participation with DCSI. From time to time, MPS will require communication
with Licensee's personnel, and Licensee agrees to provide names, telephone
number(s), and schedules of such personnel throughout the period of the
Licensee's membership with DCSI.
6) MPS will make available to Licensee activity files in a MPS format of its
DCSI transactions, unless similar information is provided by MPS through
other services provided to Licensee.
7) MPS will not provide: (i) routing of activity files received from DCSI to
Licensee; or (ii) any other files or reports not specifically described above.
8) Licensee agrees to allow the auditors of MPS or DCSI to review the files
held and procedures followed by Licensee in connection with the Gateway
Services.
2-KU
9) Licensee shall be responsible for communicating with and making any
necessary reconciliation or adjustments in accordance with the DCSI
Documentation.
10) Licensee authorizes MPS to notify DCSI in writing of its desire to become
a Sponsored Member through sponsorship by MPS. Licensee also authorizes MPS
to provide DCSI with such information about Licensee as may be required by
DCSI and the Operating Rules.
11) Licensee agrees to display the Discover Card and/or NOVUS Services, Inc.
trademark according to the DCSI documentation except where explicitly
prohibited by national and/or regional networks in which Licensee
participates.
12) Licensee agrees to be responsible for all direct and indirect costs
(including but not limited to those incurred by MPS) in connection with and/or
related to Licensee's conversion from MPS at the termination of this
Addendum and/or related to any conversion by Licensee in connection with its
CMC after Licensee's initial conversion to MPS.
E. INDEMNIFICATION
Licensee agrees to pay all fees, assessments and penalties as they are
currently in effect or may be changed from time to time, imposed by DCSI,
whether billed directly to Licensee by DCSI or through MPS or its agents or
affiliates. MPS may allocate any such fees, fines, assessments or penalties
in such manner as it deems advisable in its sole discretion. Licensee agrees
to indemnify and hold harmless, MPS, its officers, employees, affiliates and
agents, from and against any losses, damages, fees, fines, penalties and
expenses, including reasonable legal and accounting fees and expenses, that
MPS, its officers, employees, affiliates and agents may incur as a result of
Licensee's failure to comply with any provision of the DCSI Documentation,
the agreement between DCSI and MPS, the Agreement or this Addendum or for any
other reason in connection with the Gateway Services provided hereunder,
whether incurred by or as a result of the action or failure to act of MPS or
Licensee, or their agents. This indemnification shall survive the termination
of the Agreement and/or this Addendum.
F. MODIFICATION
In the event of any changes or modifications to the DCSI Documentation which
affect the responsibilities of a Member, MPS may amend this Agreement upon 30
days prior written notice to Licensee. MPS may change the fees and charges at
any time upon a minimum of 30 days prior written notice to Licensee. In the
event such change in fees is in excess of the limit set forth in the
Agreement, the Licensee shall have the right to terminate this Addendum by
giving written notice thereof within 30 days after the date of notice of
change in fees and charges from MPS. Simultaneously therewith, termination of
this Addendum shall be effective the later of 30 days from receipt by MPS of
notice of termination, or the effective date of termination as set by DCSI,
but in no event later than 4 months from the date of Licensee's notice of
termination.
THE PARTIES ACKNOWLEDGE THAT THE MASTER DATA PROCESSING AGREEMENT BETWEEN
THEM, AS SUPPLEMENTED BY THIS AND OTHER ADDENDA, SET FORTH THE COMPLETE AND
EXCLUSIVE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES PROVIDED
AND UNLESS SPECIFICALLY PROVIDED FOR IN THIS ADDENDUM, THE SERVICES DESCRIBED
HEREIN SHALL NOT INCLUDE ANY OF THE SERVICES OUTLINED IN THE DEFINITIONS AND
GENERAL SERVICES ADDENDUM OR OTHER ADDENDA WHICH MAY BE A PREREQUISITE FOR
THE SERVICES DESCRIBED HEREIN.
MIDWEST PAYMENT SYSTEMS, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
---------------------------
Title: Senior Vice President
--------------------------
Date: Nov 30 1998
--------------------------
LICENSEE: HERITAGE OAKS BANK
By:/s/ Xxxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxxx X. Xxxx
---------------------------
Title:
--------------------------
Date:
---------------------------
3-KU
EXHIBIT 99.4
ADDENDUM NA TO MASTER DATA PROCESSING AGREEMENT
INTERCEPT AND PROCESSOR SERVICES
This Agreement shall be an Addendum to the Master Data Processing Agreement
(the "Agreement"), dated October 1, 1998 between HERITAGE OAKS BANK
("Customer"), having its principal offices at 000 Xxxxxxx Xxxxxx, Xxxx
Xxxxxx, XX 00000, and MIDWEST PAYMENT SYSTEMS, INC. ("MPS"). Customer is a
member of the _________________________________________________ ("Network").
1. Customer desires to contract with MPS to provide the systems, computers
and communications necessary to allow it to operate Customer authorized
terminals to acquire transactions for Customer, Member Institutions and
others, and to accept those transactions for processing and authorization.
NOW, THEREFORE, in consideration of the foregoing recitals and of mutual
promises hereinafter set forth, the parties agree as follows:
A. DEFINITIONS
For the purposes of this Agreement, the following terms shall mean:
MEMBER INSTITUTION shall mean any financial institution such as a bank,
thrift or credit union which is authorized by the Network to participate in
the Network.
NETWORK SWITCH shall mean the data processing servicer authorized by the
Network which may be used to route transactions between providers of
intercept services and processor services.
Except for the terms defined herein, the capitalized terms herein shall have
the same meanings as ascribed to them in the Agreement or the Definitions and
General Services Addendum as may be published by MPS from time to time. In
the event of a conflict between the Agreement and this Addendum, this
Addendum shall control.
B. TERM
The term of this Addendum shall commence October 1, 1998, and shall continue
for a term of ___ years from the 1st day of the calendar month following the
above date or the date of Customer's conversion to MPS for Intercept and
Processor Services ("Initial Term") whichever event shall later occur. Except
as hereafter provided, unless either party gives written notice to the other
party at least 120 days prior to the expiration of any term, the Agreement
and this Addendum shall be automatically extended for additional periods
equal to the Initial Term.
C. INTERCEPT AND PROCESSOR SERVICES AND FEES
INTERCEPT SERVICES shall mean the data processing systems and procedures
provided by MPS to operate Customer authorized terminals to acquire
transactions for Customer, Member Institutions, non-Network members, and
others as authorized by Customer or MPS. Transactions performed on Customer's
terminals by Customer's cardholders shall be processed by MPS using Processor
Services. All other acquired transactions shall be routed, at the option of
MPS, to the Network Switch, to Member Institutions, to MPS or to other
servicers.
PROCESSOR SERVICES shall mean the data processing systems and procedures
provided by MPS to accept and authorize EFT transactions including ATM
transactions in accordance with the stand MPS options selected by Customer.
Customer's EFT transactions may be routed to MPS from Customer, the Network
Switch, Member Institutions, non-Network members, MPS and others. Such
routing shall be determined by MPS.
The transaction record format between the Customer and MPS will be the MPS
version of ANSI X9.2 or such other format as may be mutually agreed upon
between MPS and Customer.
Customer agrees to pay the following fees for the Intercept and Processor
Service set forth below:
1. ATM Access Fees
(tiering cumulative)
- 0 - 15 ATMs $125/ATM/month
(subject to a maximum fee of $1,537.50/month)
- 16 - 25 ATMs $75/ATM/month
(subject to a maximum fee of $1,537.50/month
and subject to a maximum fee of $1,600/month)
1-NA
- 26 and above ATMs $50/ATM/month
(subject to a minimum fee of $1,600/month)
2. ATM Site Preparation Fees
a) Off-Site Support and Consulting $500/ATM
- ATM installation consulting
- Sample site configuration
- Power requirements
- Cost effectiveness consulting
- Contractor consulting
- Order communications equipment and lines
- ATM vendor consultation
- Off-site troubleshooting
b) On-site ATM Support $500/ATM/site visit
- Installation of modems plus expenses
- On-site ATM connection
- On-site troubleshooting
3. Transaction Fees
Intercept and Processor transaction fees are assessed to Customer for all
cardholder and ATM transactions. Intercept and Processor transaction fees are in
addition to gateway, surcharge and other transaction fees assessed under this or
other Addenda. Customer can choose one of three available options for each card
type:
Option X - Remote Authorization. MPS receives the transaction, processes the
transaction in a partial fashion and switches the transaction to a remote data
center for account authorization. Local account balances are not resident at
MPS.
Option Y - Limits. MPS receives the transaction and provides independent
authorization based on card limits established by Customer. Account level
balance authorization is not available.
Option Z - Relational Data Base. MPS receives the transaction and provides
authorization services at both the card level and account level. Cross
referencing is provided between the cardholder name, card number and various
cardholder accounts. Local account balances may be updated via CRT or batch EFT
extract updating. The transaction can optionally be switched to a remote data
center for account authorization.
a) All Transactions
(tiering cumulative)
- 0 - 75,000 transactions $.065/transaction
(subject to a maximum fee of $4,400/month)
- 75,001 - 150,000 transactions $.0525/transaction
(subject to a minimum fee of $4,400/month
and subject to a maximum fee of $7,300/month)
- 150,001 and above transactions $.045/transaction
(subject to a minimum fee of $7,300/month)
b) Positive Balance Authorization Surcharge $.035/transaction
(for all cardholder transactions involving Option Z)
c) Stand-in Processing Surcharge
- Stand-in Transaction Fee Surcharge
Assessed in addition to the Transaction Fees for:
1) all cardholder transactions processed under Options
Y and Z, and 2) all cardholder transactions involving
Option X only when stand-in is active for Customer. $.03/transaction
2-NA
4. Card Management (Cluster) Services
a) Plastic debt or credit card file
One Cluster for each plastic or plastics
with the same account number.
- Multiple types of plastics
Network ATM card
Visa
MasterCard
- Multiple account authority
Inquiry
Withdrawal/debit
Deposit/credit
Overdraft
- Multiple accounts per plastic (10 per account type)
Demand Deposit
Savings
Installment Loan
Visa and MasterCard Debit/Credit cards
Certificate of Deposit, including XXX
Mortgage Loan
Revolving Credit account
- External PIN validation (no algorithm)
- Online transaction history
- Authorization limits by Customer or cardholder
- Disk space for cluster file
- Card limits
- Card status
All Cards
(tiering cumulative)
- 0 - 25,000 cards $.05/card cluster/month
(subject to a maximum fee of $1,100/month)
- 25,001 - 50,000 cards $.0375/card cluster/month
(subject to a minimum fee of $1,100/month
and subject to a maximum fee of $1,550/month)
- 50,001 and above cards $.025/card cluster/month
(subject to a minimum fee of $1,500/month)
b) Cluster File Extension Support
- Customer name and address file
- CRT lookup by customer name or card number
- Cross referencing customer name to multiple card files
- Batch updating ability for cluster file
For Option X and Y $.02/cluster/month
For Option Z N/C
c) Account File Residency (Option Z) $.02/account/month
d) CRT File Updates $.05/update
e) Cluster PIN Validation transaction fee surcharge.
Applies to cluster file when PIN is derived from the card
track II data using a software algorithm and, optionally,
a key. All plastics in each card type must use the
same algorithm. $.01/transaction
3-NA
5. Interface and Setup Fees
Setup fees apply whenever a new card or account type is added as well as
when the magnetic stripe track II data account number format or the account
file numbering scheme changes. Setup fees also apply in the Customer
converts among options X, Y and Z.
a) Customer Setup Fee $5,000
At Customer's conversion to MPS, this fee shall include one Remote
Authorization interface as defined in Section C.5.e herein below if
applicable.
b) Card Management file setup fee N/C
c) Card Management file conversion fee
- Cluster (card) file $1,000/card type
- Name and Address file for Options X and Y $1,000/file
- Name and Address file for Option Z N/C
- Account file for Option Z $1,000/file
d) Card Management PIN Validation setup
- Existing algorithm $1,000/BIN
- New algorithm $3,000/BIN
e) Remote authorization interface from MPS
to each account authorization Data Center $5,000/Interface
in standard MPS format.
f) Remote authorization interface from MPS Standard hourly rate/
Processor to each account authorization Interface
Data Center using non-standard MPS format.
6. Stand-in Processing Residency Fees
(applicable when clusters not maintained at MPS)
a. File residency (allowance of a combined $200/file/month
total of 5000 positive, VIP and
negative records included)
b. File residency extension for combined $.05/record/month
total of positive, VIP and negative
records in excess of 5000 per Processor
c. CRT file updates $.05/update
d. File refresh/synchronization
- First run per month N/C
- Additional runs each month $50/run
e. File transmission xxx XXX $150/file
f. File setup $1,000/file
D. NETWORK ACCESS SERVICES
The access service fees for the Network include MPS' initial installation and
recurring maintenance fees associated with Customer's interface to the Network
Switch under current Network's standards. These fees do not include any network
fees assessed to Customer or to MPS as a result of Customer's participation in
the Network.
4-NA
NETWORK SETUP FEE MONTHLY ACCESS FEE
------- --------- ------------------
Alert $3,000 $250/month
Bank Mate $3,000 $250/month
Gulfnet $3,000 $250/month
MAC (East or West) $3,000 $250/month
Magic Line $3,000 $250/month
MOST $3,000 $250/month
Money Station $3,000 $250/month
InfiNet (NYCE) $3,000 $250/month
Presto $3,000 $250/month
Pulse $3,000 $250/month
Rock Valley (EFTI) $3,000 $250/month
STAR $6,000 $300/month
Southeast Switch
(HONOR) $5,000 $250/month
Other Quoted Quoted
E. OTHER SERVICES AND FEES
1. Online Adjustment System Fees $75/month
a) File residency $.10/update
b) CRT file updates $300
c) File setup
2. Online Deposit System (DEPSI) Fees
a) File residency N/C
b) CRT file updates $.10/update
c) File setup N/C
3. Communication Controller Access Fees
a) Remote Authorization Data Center
less than or equal to 9600 Baud
- Private Use Port $250/port/month
- Shared Use Port $125/port/month
b) RJE point-to-point port -
less than or equal to 9600 Baud $150/port/month
c) Private multi-drop (CRT, RJE) line -
less than or equal to 9600 Baud $150/port/month
d) Dial-up devices (CRT, RJE) $35/device/month
e) Other Quoted
4. Telecommunication Setup and Access Fees
a) RJE setup fee
- Standard Electronic Transmission using
IBM Standard Remote Job Entry $1,000/destination
b) RJE access fee
- First destination N/C
- Additional destinations $1,000/destination/month
5-NA
c) CRT access fee
- first two CRTs plus additional CRT up to N/C
the number of Customer ATMs connected to MPS
- Additional CRTs $25/CRT/month
d) ATM definition fee $160/ATM
(subject to a $640 minimum/requests)
5. Other Fees
a) Microfiche reporting $2.20/microfiche page
b) Federal Reserve Settlement $7.00/month
c) ATM monitoring & dispatching $21.00/month/ATM
d) RJE Usage Fees
- Lease Line Usage $.001297/transaction
- Dial-up Usage $.003674/transaction
e) Other Services Quoted
6. MPS Standards
Customer shall be entitled to one copy of the MPS Standards and updates as
published from time to time as it relates to Intercept Services and
Processor Services provided herein.
G. REPORTS AND SETTLEMENT
MPS will provide Customer standard MPS reports for the services provided to
Customer. MPS will debit or credit Customer's accounts to settle monetary
transactions. Reports and settlement procedures are defined in the
Standards.
H. SERVICES AND EXPENSES NOT PROVIDED BY MPS
Certain services and expenses will be the sole responsibility of Customer
and include but are not limited to the following:
1. External costs for interchange settlement.
2. Individual terminals, modems, upgrades, modem sharing devices, etc.
3. Data entry of account balances, maintenance data, etc.
4. Communications lines, equipment, installation and maintenance costs to the
MPS Communications Controller.
5. Costs associated with maintaining and implementing all software and hardware
necessary to interface to MPS in accordance with Network and MPS standards.
This includes communication drop charges, modems and lines to the MPS data
center and for disaster backup capability and any MPS communication
equipment necessary to support Customer's unique operating environment,
including but not limited to protocol converters. MPS is not responsible for
terminal upgrades required to meet Network and MPS standards.
6. Costs incurred by PMS Network Control for contacting Customer, processors,
terminal owners and response teams in performing the Services.
7. Verification of network settlement, proving of deposits and handling of
exception items.
8. Physical magnetic tape or disk file output for Customer use.
9. Postage, printing, and courier costs associated with non-electronically
transmitted reports, and all other postage costs associated with the
services provided herein.
6-NA
10. Communications equipment, lines and drop or communication access charges to
other switches.
11. Costs associated with RJE.
12. Fees assessed by Network Switch or others.
13. All fines, fees, assessments, inquiries, adjustments and other xxxxxxxx
charged to MPS by Network, or charged to Customer as a result of MPS's
actions or inaction, in connection with Customer's participation in the
Network.
14. Costs associated with hardware and/or software changes (including but not
limited to those of MPS) as a result of changes in Network's standards.
15. Customer agrees to be responsible for all direct and indirect costs
(including but not limited to those incurred by MPS) in connection with
and/or related to Customer's conversion from MPS at the termination of this
Addendum and/or related to any conversion by Customer.
I. INDEMNIFICATION
Customer agrees to participate in Network in compliance with Network's by-laws
and operating regulations and MPS's standards and this Addendum. Customer agrees
to pay all fees, assessments and penalties as they are currently in effect or
may be changed from time to time, imposed by Network, whether billed directly to
Customer by Network or through MPS. MPS may allocate any such fees, fines,
assessments or penalties in such manner as it deems advisable in its sole
discretion. Customer agrees to indemnify and hold harmless MPS, its directors,
officers, employees, affiliates and agents, from and against any losses or
damages, fees, fines, penalties and expenses, including reasonable legal and
accounting fees and expenses, incurred by MPS, its directors, officers,
employees, affiliates and agents in connection with the Intercept and Processor
Services provided hereunder, whether incurred by or as a result of the action or
failure to act by MPS or Customer, or their agents. This indemnification shall
survive the termination of the Agreement and/or this Addendum.
J. MODIFICATION
In the event the Network changes its Network standards in any manner, MPS may,
at its option, modify this Addendum, the Intercept Services or the Processor
Services upon 30 days prior written notice to Customer, or terminate this
Addendum upon 60 days prior written notice to Customer.
THE PARTIES ACKNOWLEDGE THAT THE MASTER DATA PROCESSING AGREEMENT BETWEEN THEM,
AS SUPPLEMENTED BY THIS AND OTHER ADDENDA, SET FORTH THE COMPLETE AND EXCLUSIVE
AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES PROVIDED AND UNLESS
SPECIFICALLY PROVIDED FOR IN THIS ADDENDUM, THE SERVICES DESCRIBED HEREIN SHALL
NOT INCLUDE ANY OF THE SERVICES OUTLINED IN THE DEFINITIONS AND GENERAL SERVICES
ADDENDUM OR OTHER ADDENDA WHICH MAY BE A PREREQUISITE FOR THE SERVICES DESCRIBED
HEREIN.
MIDWEST PAYMENT SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------------
Title: Senior Vice President
------------------------------
Date: November 30, 1998
------------------------------
CUSTOMER: HERITAGE OAKS BANK
By: /s/ Xxxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxxx X. Xxxx
------------------------------
Title: President
------------------------------
Date: November 30, 1998
------------------------------
7-NA
0000-000
XXXXXXXX XX TO MASTER DATA PROCESSING AGREEMENT
AMERICAN EXPRESS NETWORK GATEWAY SERVICES - ATM ACQUIRER MEMBER
This Agreement shall be an Addendum to the Master Data Processing Agreement
(the ("Agreement"), dated October 1, 1988 between HERITAGE OAKS BANK
("Licensee"), having its principal offices at 000 Xxxxxxx Xxxxxx, Xxxx Xxxxxx,
XX 00000 and MIDWEST PAYMENT SYSTEMS, INC. ("MPS").
I. MPS has entered into an agreement with American Express Travel Related
Services Company, Inc. ("AE") where MPS can make available to AE cardholders
certain ATMs operated or accessed through MPS systems, computers, and
communications to obtain cash.
II. MPS has the systems, computers and communications necessary to allow it
to interface with the AE Switch for the American Express Express Cash Program
("AEECP").
III. Licensee desires to use the systems, computers, and communication
facilities of MPS to interface with the AE Switch to allow the participation
in AEECP of its cash disbursement automated teller machines and/or scrip
dispensers and/or other devices (collectively referred to as "ATM").
IV. MPS is willing to provide Gateway Services to Licensee, as more fully
described herein, subject to the following terms and conditions.
NOW, THEREFORE, in consideration of the foregoing recitals and of mutual
promises hereinafter set forth, the parties agree as follows:
A. DEFINITIONS
For the purposes of this Agreement, the following terms shall mean:
CORRESPONDING MEMBER CENTER ("CMC") means the processing center directly
connected to MPS, which could be the Licensee's data center, MPS or a third
party processor.
AE DOCUMENTATION means the Operating Rules and other rules, regulations and
procedures (including MPS standards) determined by MPS to be relevant to and
affecting the Gateway Services from time to time.
AE SWITCH means the computer-based system provided by AE in accordance with
the Operating Rules for AEECP.
MEMBER means an organization (including AE) authorized by AE to participate
in AEECP.
OPERATING RULES means the American Express Funds Access Express Cash Program
Operations Guide and American Express Funds Access Express Cash Program
Implementation Guide as amended from time to time.
Except for the terms defined above, the capitalized terms herein shall have
the same meanings as ascribed to them in the Agreement or the Definitions and
General Services Addendum. In the event of a conflict between the Agreement
and this Addendum, this Addendum shall control.
B. TERM
The term of this Addendum shall commence October 1, 1998, and shall continue
for a term of ____ years or until the termination of the agreement between
MPS and AE (whichever event shall earlier occur) from the 1st day of the
calendar month following the above date or the date of AE's acceptance of
Licensee as a Member or the date of Licensee's conversion to MPS for Gateway
Services ("Initial Term") whichever event shall later occur. Except as
hereafter provided, unless either party gives notice to the other party at
least 120 days prior to the expiration of any term, the Agreement and this
Addendum shall be automatically extended for additional periods equal to the
Initial Term.
C. SERVICES AND FEES
GATEWAY SERVICES shall mean the data processing systems and procedures
provided by MPS to facilitate ATM sharing in AEECP between Licensee and/or
other Members. Other Members' AEECP transactions initiated at Licensee's
terminals and received by MPS from Licensee's CMC are routed to the AE Switch
or, at the option of MPS, routed directly to another Member.
1-TU
MPS is the message processing entity positioned between the Licensee and the
AE Switch or other Members. The transaction record format between the
Licensee's CMC and MPS version of ANSI X9.2 or such other format as may be
mutually agreed upon between MPS and Licensee.
Licensee agrees to pay the following fees for the Gateway Services set forth
below:
1) Set Up Fee $500
Disconnect Fee $500
2) Monthly Assessment Fee
$150/month
3) Documentation Fees
- AE Documentation $75/copy
- Amendments/Supplements $50/copy
4) Adjustments
$5.00/adjustment
This fee applies to every AEECP adjustment submitted by or received by
MPS on behalf of Member Institutions.
Licensee acknowledges and agrees that AE will pay interchange and other fees
to MPS for all Licensee's AEECP acquirer transactions and in turn MPS will
pay Licensee $.65 each time a cash withdrawal transaction by an AE cardholder
of another Member is authorized and completed on a terminal of Licensee.
Licensee agrees to pay MPS $.07 per every AEECP acquirer transaction
processed by MPS in connection with Gateway Services.
D. GENERAL PROVISIONS
1) MPS will process License as a Member in accordance with the procedures
set out in the Operating Rules and its agreement with AE.
2) Licensee hereby agrees to take all steps necessary to settle with MPS for
AEECP transactions involving its terminals.
3) MPS will provide Licensee within 30 days of the effective date of this
Addendum a copy of the AE Documentation in effect on the date of this
Agreement. Licensee agrees to abide by and fully comply with the AE
Documentation as may be in effect from time to time, and to perform and
fulfill any and all obligations and responsibilities, and discharge any and
all duties and liabilities, relating to MPS, AE or its Members to which it
may be subject in accordance with such AE Documentation, Operating Rules, or
resolutions adopted by the AE Board of Directors, or which may arise if any
other manner or from any other source related to the Gateway Services.
4) Licensee agrees that, upon request by MPS, it will periodically provide
to MPS certification in writing of its compliance with all AE Operating Rules
applicable to Licensee, or to MPS as processor for Licensee, and with the AE
documentation.
5) Licensee will provide personnel, one of whom shall be a management level
technical interface person, to monitor, oversee and maintain its
participation in AEECP. From time to time, MPS will require communication
with Licensee's personnel, and Licensee agrees to provide names, telephone
number(s), and schedules of such personnel throughout the period of the
Licensee's membership in AEECP.
6) MPS will make available to Licensee activity files in a MPS format of its
AEECP transactions, unless similar information is provided by MPS through
other services provided to Licensee.
7) MPS will not provide: (i) routing activity files received from AE to
Licensee; or (ii) any other files or reports not specifically described above.
8) Licensee agrees to allow the auditors of MPS or AE to review the files
held and procedures followed by Licensee in connection with the Gateway
Services.
9) Licensee shall be responsible for communicating with and making any
necessary reconciliation or adjustments in accordance with the AE
Documentation.
2-TU
10) Licensee authorizes MPS to notify AE in writing of its desire to become a
Member. Licensee also authorizes MPS to provide AE with such information
about Licensee as required according to the agreement between MPS and AE and
the Operating Rules.
11) Licensee agrees to display the AEECP trademark according to the AE
Documentation except when explicitly prohibited by national and/or related
networks in which Licensee participates.
12) Licensee agrees to be responsible for all direct and indirect costs
(including but not limited to those incurred by MPS) in connection with
and/or related to Licensee's conversion from MPS at the termination of this
Addendum and/or related to any conversion by Licensee in connection with its
CMC after Licensee's initial conversion to MPS.
E. INDEMNIFICATION
Licensee agrees to pay all fees, assessments and penalties as they are
currently in effect or may be charged from time to time, imposed by AE,
whether billed directly to Licensee by AE or through MPS or its agents or
affiliates in connection with Licensee's participation in AEECP. MPS may
allocate any such fees, fines, assessments or penalties in such manner as it
deems advisable in its sole discretion. Licensee agrees to indemnify and hold
harmless, MPS, its officers, employees, affiliates and agents, from and
against any losses, damages, fees, fines, penalties and expenses, including
reasonable legal and accounting fees and expenses, that MPS, its officers,
employees, affiliates and agents may incur as a result of Licensee's failure
to comply with any provision of the AE Documentation, the agreement between
AE and MPS, the Agreement or this Addendum or for any other reason in
connection with the Gateway Services provided hereunder, whether incurred by
or as a result of the action or failure to act of MPS or Licensee, or their
agents. This indemnification shall survive the termination of the Agreement
and/or this Addendum.
F. NOTIFICATION
In the event of any changes or modifications to the AE Documentation which
affect the responsibilities of a Member, MPS may amend this Agreement upon 30
days prior written notice to Licensee. MPS may change the fees and charges at
any time upon a minimum of 30 days prior written notice to Licensee. In the
event such change in fees is in excess of the limit set forth in the
Agreement, the Licensee shall have the right to terminate this Addendum by
giving written notice thereof within 30 days after the date of notice of
change in fees and charges from MPS. Simultaneously therewith, Licensee shall
give the necessary notice to AE of termination of its membership in AE as a
Member. Termination of this Addendum shall be effective the later of 30 days
from receipt by MPS of notice of termination, or the effective date of
termination as set by AE, but in no event later than 6 months from the date
of Licensee's notice of termination.
THE PARTIES ACKNOWLEDGE THAT THE MASTER DATA PROCESSING AGREEMENT BETWEEN
THEM, AS SUPPLEMENTED BY THIS AND OTHER ADDENDA, SET FORTH THE COMPLETE AND
EXCLUSIVE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES PROVIDED
AND UNLESS SPECIFICALLY PROVIDED FOR IN THIS ADDENDUM, THE SERVICES DESCRIBED
HEREIN SHALL NOT INCLUDE ANY OF THE SERVICES OUTLINED IN THE DEFINITIONS AND
GENERAL SERVICES ADDENDUM OR OTHER ADDENDA WHICH MAY BE A PREREQUISITE FOR
THE SERVICES DESCRIBED HEREIN.
MIDWEST PAYMENT SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXXXXX
-------------------------------------
Name: XXXXX X. XXXXXXXXX
-----------------------------------
Title: SENIOR VICE PRESIDENT
Date: NOV 30, 1998
-----------------------------------
LICENSEE: HERITAGE OAKS BANK
By: /s/ XXXXXXXX X. XXXX
-------------------------------------
Name: XXXXXXXX X. XXXX
-----------------------------------
Title: PRESIDENT
Date: 11-30-98
-----------------------------------
3-TU
