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[RDSI LOGO]
EXHIBIT 10.2
RURBANC DATA SERVICES
DATA PROCESSING AGREEMENT
This Agreement dated October 01, 1998 is entered between Rurbanc Data Services,
Inc., a wholly owned subsidiary of Rurban Financial Corporation, an Ohio
Corporation located at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (thereafter
referred to as "RDSI"), and
TOWER FINANCIAL CORPORATION
TOWER BANK & TRUST
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
XXXX XXXXX, XXXXXXX 00000
(hereinafter referred to as "Bank".)
This Agreement sets forth the basic contractual terms for providing an
electronic data processing service in accordance with the stipulations and rates
hereinafter set forth, and provided by RDSI to the Bank.
I. PURPOSE OF THE AGREEMENT
The Bank agrees that RDSI may perform certain services for the Bank in
the schedule(s) attached hereto, and RDSI agrees to performing such services
pursuant to the terms and conditions of this Agreement. RDSI shall receive data
from the Bank via data communication lines or ground courier for processing, and
shall process such data, producing reports and/or journals daily for the Bank.
It is agreed that if source documents are ever in transit, via ground courier,
between the Bank and RDSI, the responsible party should maintain adequate
insurance coverage and/or accept financial responsibility. The Bank agrees to
compensate RDSI for its services herein in accordance with the attached fee
schedules.
II. TERM OF THE AGREEMENT
This Agreement shall become effective February 01, 1999 and shall extend
for a period of Five (5) Years, continuous, day-to-day, which is the term of
this Agreement. However, at the request of the Bank, the term does not commence
until the "core" applications, (Demand Deposits, Savings, Certificates of
Deposit, Loans and Financial General Ledger Management Systems), have been
successfully converted and operational.
This Agreement shall automatically continue after the initial Term unless
terminated by either party upon at least 180 days prior written notice to the
other. The Bank's and RDSI's continuing obligations under the Agreement
including, without limitation, those relating to Ownership and Confidentiality
shall survive the termination of this Agreement. RDSI reserves the right to
reduce charges at any time, however, any increase will not become effective
until thirty (30) days after prior written notice has been given to the Bank.
RDSI and the Bank have agreed that during the first TWO (2) Years of this
Agreement, rates shall be fixed at such rate(s) as described in the attached fee
schedule(s).
III. RETURN OF BANK'S WORK
RDSI will process the Bank's items in connection with any service agreed
upon and will assure transmission or delivery to the Bank by 9:00 a.m. on the
next business day. The only exceptions granted for non-delivery on time, will be
those due to abnormal climatic conditions, equipment and software failures, or
other unforeseen contingencies not due to negligence. The Bank agrees to have
arrangements for disaster backup facilities and systems relating to the Bank's
own internal operation and equipment in effect throughout the period covered by
this Agreement.
IV. CONVERSION
Expenses of the conversion will be paid by the Bank, such as quoted
conversion and training fees, equipment purchases and modifications,
communication equipment and lines, ITI formal training classes, new forms and
supplies and other conversion cost items as detailed in the attached RDSI
proposal. The RDSI conversion charge has been established at $7,000.00 plus any
out of pocket expenses incurred by RDSI in direct relation to the conversion
(ie: lodging, meals, mileage, etc.) plus any expenses incurred due to
deconversion from the Bank's existing processing system, to be paid directly to
RDSI upon completion of the first application converted. RDSI assures the Bank
that conversion of the "core" application systems will be completed no later
than thirty (30) days after commencement of the first application. The Bank will
receive a 25% discount applied against the first three (3) months' processing
invoice from RDSI for each month the conversion is delayed by RDSI, with an
additional 25% discount for each additional month the conversion is delayed
thereafter. No discount penalty will be applied if the Bank delays the
conversion at the Bank's own request. Test conversion procedures will be
performed and provided prior to the actual conversion and will require the
Bank's approval to proceed.
V. COMPLIANCE WITH SECTION 5 OF THE BANK SERVICE CORPORATION ACT
RDSI hereby agrees it will be subject to regulations and examinations,
including auditing, to the same extent as if the services being provided by RDSI
were being performed by the Bank itself on its own premises.
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DATA PROCESSING AGREEMENT - TOWER FINANCIAL CORPORATION - PAGE TWO
VI. EXAMINATION OF RIGHTS
Each year RDSI will contract an outside accounting firm for the purposes
of performing a third party review. If the Bank wishes to participate in the
third party audit and review, cost will be divided equally among all RDSI bank
customers being processed according to asset size. The Bank still has the right
to perform an examination of RDSI independently at the Bank's own expense.
VII. CORRECTION OF ERRORS
RDSI shall have the right to reprocess the Bank's materials to correct
any errors for which RDSI may be responsible in full satisfaction of all Bank's
claims, provided the Bank has notified RDSI in writing of any claimed error
within thirty (30) days after receipt of service results and furnished
supporting documentation of such claim. All services furnished hereunder are
deemed acceptable to the Bank unless proper notice and proof of claim have been
made within the thirty (30) day period.
VIII. LIMITATION OF LIABILITY
A. RDSI shall be liable for loss, destruction or damage of Bank
supplied materials only if due to the negligence of RDSI, and then
only to the extent of restoring the loss, destroyed or damaged
materials; provided such restoration can be reasonably performed
by RDSI and the Bank furnishes RDSI with all source data necessary
for such restoration.
B. RDSI shall continue to maintain during the duration of this
Agreement an errors and omissions policy of insurance, in the
amount as set forth an contained in Section XII. Hereto.
C. RDSI shall not be liable for any incidental, special or
consequential damages of any nature whatsoever, such as, but not
limited to, loss of anticipated profits or other economic loss in
connection with, or arising out of the existence or services
provided for in this Agreement, or for specific performance.
D. RDSI shall not be liable for failure to provide, or delays in
providing, services hereunder, if due to any cause beyond RDSI's
reasonable control, including but not limited to the following:
(1) mechanical failures or breakdowns of electronic data
processing equipment due to power failures due to a declared
disaster; (2) shortages in supplies or materials from RDSI's
supplier, due to strike, riots, civil disturbances, flood, fire,
snow storms, acts of God, or any other act of occurrences not
under the controls of RDSI; (3) strikes, riots, civil
disturbances, war, law suits, or lockouts; (4) fire, epidemics or
other casualties; (5) windstorms, earthquakes, tornadoes, floods,
weather, or other acts of God; (6) unusual delay in transportation
beyond the control of RDSI; (7) destruction of data communication
lines; (8) governmental regulations or interference, except to the
extent agreed to herein.
E. RDSI's total liability arising out of or any way connected to its
performance under this Agreement, including malfunction of RDSI's
equipment, failure or negligent of RDSI's employees and agents,
and defective programs, shall be limited to the coverage as set
forth under RDSI's errors and omissions insurance policy. However,
RDSI may remedy future claims, with the Bank's agreement, in the
case where repetitive processing services are being provided, to
general money damages in the amount not excess of the total amount
paid by the Bank for services for services performed by RDSI under
this Agreement during the period of ninety (90) days immediately
preceding the occurrence giving rise to any claims by the Bank;
claims exceeding this remedy may be submitted to errors and
omissions insurance coverage. In the case where non-repetitive
processing services are being supplied, RDSI's total liability
shall be limited to the general money damages not to exceed the
total amount paid for such services by the Bank.
F. RDSI warrants that the services provided under this Agreement
comply with all existing applicable Federal, State and Local laws,
regulations and guidelines. If after the date hereof, any
modifications to those services shall be required by law or by any
governmental regulatory authority having authority over the Bank's
business, RDSI shall, upon ninety (90) days advance written notice
to the Bank and to RDSI, conform the services to be in compliance
with such modified laws or governmental regulations. Except as
otherwise provided in this Agreement, RDSI shall not be liable for
any other express or implied warranty, including any warranty of
merchantability or fitness.
G. RDSI agrees to (1) monitor for and detect service deficiencies,
(2) take prompt action to determine the cause of and to correct
the deficiencies, (3) shoulder the costs of correcting the
deficiencies and (4) provide substitute services until such time
as the deficiencies are corrected. Moreover, the fees due RDSI
under this Agreement may be adjusted for so long as the specific
deficiencies exist so that RDSI will have an economic incentive to
correct deficiencies promptly and to prevent deficiencies in the
first instance. The adjustment in fees due RDSI will be adjusted
for such deficiencies in accordance with Section VIII.
Limitation of Liability.
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DATA PROCESSING AGREEMENT - TOWER FINANCIAL CORPORATION - PAGE THREE
IX. OWNERSHIP AND CONFIDENTIALITY
A. It is understood that the Bank is the legal owner of all data and
records relative to itself, which may be in the possession of RDSI
and may be obtained by the Bank via machine readable form at a
reasonable charge determined by RDSI, as stated in Section XVII.
Deconversion Considerations, of this Agreement. RDSI is the owner
of all programs and documentation.
B. RDSI and the Bank each agree that all information including, but
not limited to business methods, internal operation data and
customer records, communicated to it by the other either before or
after the effective date of this Agreement, was and shall be
received in strict confidence, shall be used only for the purposes
of this Agreement, and that no such information shall be disclosed
by the recipient party without the prior written consent of the
other party, and each agrees that each party will prevent the
disclosure to outside parties of the terms and provisions hereof,
except as may be necessary by reasons of legal, accounting, or
regulatory requirements beyond the reasonable control of RDSI or
the Bank, as the case may be.
C. This Agreement absolutely prohibits either party from disclosing
confidential information of the other, with the usual exceptions
of disclosure required by law or court order or disclosure of
information already in the public domain through no fault of
either party to the Agreement. Both parties agree to notify the
other of any breach of confidentiality.
D. RDSI and the Bank agree to indemnify and hold harmless the other
from any direct loss, damage cost or expense which the other may
sustain or incur by reason of any wrongful use by RDSI or the
Bank, as the case may be, or confidential information of the other
obtained in the course of the performance of this Agreement. In no
event, shall such indemnification extend to claims by or
information communicated by third parties not subject to this
Agreement.
E. RDSI agrees that it will comply with all applicable Federal, State
and Local laws and regulations governing the use of disclosure of
information provided by the Bank.
F. RDSI shall establish and maintain reasonable safeguards against
the destruction or loss of the Bank's data in the possession of
RDSI.
G. RDSI will notify the Bank of any system changes that will effect
the Bank's procedures, reports, etc.
H. RDSI and the Bank each agree that all Bank information, including
hard copy report media as well as on-line data, and all Bank
customer data, shall be held in strict confidence, and shall be
used only for purposes of this Agreement, and that no such
information shall be disclosed by the recipient party without the
prior written consent of the Bank, and each agrees to take all
reasonable precautions to prevent the disclosure to outside
parties of the terms of this Agreement. However, disclosure
required by law may be excepted from the general prohibition
against disclosure and the Bank, the Bank's parent company and the
Bank's counsel may decide whether the Agreement or its terms must
be disclosed.
I. Upon the occurrence of any default under this Agreement, remedies
upon default as outlined in Section XI. Of this Agreement will
apply.
X. PAYMENTS AND BILLING
The Bank agrees to pay RDSI for services performed hereunder in
accordance with the charges set forth in this Agreement. RDSI shall invoice
during the first ten (10) days of each month for services performed during the
prior month. Payment by the Bank shall be net ten (10) days from the invoice
date. Any invoice aged thirty-one (31) days from the date is subject to a
service charge of one percent (1%) of the unpaid balance. No late charge will be
imposed by RDSI to the Bank in the case of amounts past due that are reasonably
in dispute.
XI. DEFAULT: REMEDIES UPON DEFAULT AND ARBITRATION
A. Any of the following events will constitute a default under this
Agreement: (1) nonpayment of any amounts due RDSI by the Bank; (2)
nonperformance of any of the Bank's or RDSI's other material
obligations; (3) if any representation or warranty of the Bank or
RDSI proves to be false in any material respect; (4) if the Bank
or RDSI commits an act of bankruptcy or becomes insolvent or the
subject of any proceeding under the Bankruptcy Act; (5) if any
substantial part of the Bank's property becomes subject to any
levy, seizure, assignment, application or sale for or by any
creditor or government agency; or (6) failure of the RDSI backup
disaster recovery contingency plan to be implemented as a result
of a service disrupting disaster, causing the inability of RDSI,
in accordance to this Agreement, to perform data processing
services for the Bank for an unreasonable length of time, in
excess of twenty-four (24) to forty-eight (48) hours.
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DATA PROCESSING AGREEMENT - TOWER FINANCIAL CORPORATION - PAGE FOUR
B. Upon the occurrence of any default under this Agreement, RDSI and
the Bank, at its option provided at least thirty (30) days (or
such longer period as may be required by the applicable regulatory
authorities) prior written notice has been given to the other and
such default has not been cured within such period, may terminate
this Agreement. In addition, RDSI or the Bank shall have all other
rights and remedies available to it under this Agreement or by
operation of law or otherwise.
C. Upon the occurrence of default under this Agreement as stated in
paragraph A. (6), of this section, if service provided by RDSI to
the Bank is disrupted for an extended period of time, exceeding
forty-eight (48) hours, resulting from the failure of the RDSI
disaster recovery contingency plan, being implemented in response
to an actual disaster, the Bank may terminate this Agreement and
take action to protect itself by seeking alternative data
processing services.
D. RDSI believes its systems and equipment to be Year 2000 compliant
and will make every effort to test all RDSI systems and equipment
to assure functionality. Failure of RDSI to be Year 2000 compliant
would be in violation of bank regulations and would constitute
immediate default under this Agreement, allowing the Bank to
exercise immediate departure from this agreement without the
thirty (30) day written notification period.
E. ARBITRATION. Any dispute, controversy or claim arising out of,
connected with, or relating to this Agreement, or the breach,
termination, validity or enforceability of any provision of this
Agreement, will be resolved by final and binding arbitration by a
panel of three arbitrators in accordance with and subject to the
Commercial Arbitration Rules of the American Arbitration
Association ("AAA") then in effect. Following notice of a party's
election to require arbitration, each party will within thirty
(30) days select one (1) arbitrator, and those two arbitrators
will within thirty (30) days thereafter select a third arbitrator.
If the two arbitrators are unable to agree on a third arbitrator
within thirty (30) days, the AAA will within thirty (30) days
thereafter select such arbitrator. Discovery as permitted by the
Federal Rules of Civil Procedure then in effect will be allowed in
connection with arbitration to the extent consistent with the
purpose of the arbitration and as allowed by the arbitrators.
Judgment upon the award rendered in any arbitration may be entered
in any court of competent jurisdiction, or application may be made
to such court for judicial acceptance of the award and an
enforcement, as the law of the state having jurisdiction may
require or allow. During any arbitration proceedings, RDSI shall
continue to provide services under this Agreement and the Bank
shall continue to make payments hereunder. The fact that
arbitration is or may be allowed will not impair the exercise of
any termination right under this Agreement.
F. This Agreement provides that RDSI and the Bank will use their best
efforts to resolve disputes expeditiously.
G. If material deficiencies are found in RDSI's operations by third
party audit review or by bank regulatory examination reports; or
if RDSI's external auditors issue a qualified going concern
opinion on the financial statements of RDSI; or if RDSI should be
declared insolvent, and RDSI has not taken action to remedy, these
should also be considered events of default.
XII. ERRORS AND OMISSIONS INSURANCE
RDSI will carry Errors and Omissions Insurance Coverage as follows:
Electronic Data Processing Errors and Omissions Declared Coverage:
Limit of Liability $1,000,000.00
Deductible of $1,000.00 per claim
Errors and Omissions Insurance Coverage is carried with:
Royal Insurance Company
0000 Xxxxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
RDSI agrees to provide the Bank notification in the event of a change in
insurance carriers or cancellation of the policy by the insurance carrier. RDSI
will provide the Bank with a fiscal year-end financial statement each year,
which is December 31st.
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DATA PROCESSING AGREEMENT - TOWER FINANCIAL CORPORATION - PAGE FIVE
XIII. GENERAL
A. Bank acknowledges that it has not been induced to enter this
Agreement by any representation or warranty not set forth in this
Agreement. The capabilities, functions and operational
requirements are described in the RDSI Proposal, dated August 18,
1998, supplied to the Bank by RDSI and contained in Appendix A,
which Appendix A is incorporated in the Agreement by reference
hereof. The services shall include, in addition to the description
contained in Appendix A, any improvements, additions or
modifications of the services which RDSI provides to the Bank and
materials related thereto and all materials, documentation and
technical information provided to the Bank in written form and
identified in Appendix A for use in connection with the services.
This Agreement contains the entire agreement of the parties with
respect to its subject matter and supersedes all existing
agreements and all other oral, written or other communications
between them concerning this matter. This Agreement shall not be
modified in any way except by a writing signed by both parties.
Any and all additional services not previously mentioned and made
part of this Agreement that shall be provided, shall become part
of this Agreement by an Addendum signed by both parties attached
hereto.
B. This Agreement may not be assigned by the Bank, in whole or in
part, without the prior written consent of RDSI. This Agreement
shall be binding upon and shall inure to the benefit of RDSI and
the Bank and their respective successors and permitted assigns.
C. If any provisions of the Agreement (or any portion thereof) shall
be held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remainder of this Agreement
shall not in any way be affected or impaired thereby.
D. The Headings in this Agreement are intended for convenience of
reference and shall not affect its interpretation.
E. The individuals executing this Agreement on behalf of RDSI and the
Bank do each hereby represent and warrant that they are duly
authorized by all necessary action to execute this Agreement on
behalf of their respective principals.
F. In addition, it is agreed that an RDSI Customer Service
Representative shall be designated as the Bank's client relations
representative, and shall visit the Bank once every six weeks.
G. This Agreement shall be governed and construed in accordance with
the laws of the State of Ohio.
H. If either party commences an action against the other to enforce
any of the terms of this Agreement, the action must be brought in
the State of Ohio in a court of competent jurisdiction.
I. This Agreement provides that the Bank may request changes in
services, software and equipment as the Bank deems necessary, the
costs of which would presumably be borne by the Bank.
XIV. FILE BACK-UP AND DISASTER RECOVERY CONTINGENCY PLAN
A. This section of this Agreement is provided in summary form and
provides an attempt and best effort to inform the Bank of the main
points of RDSI's Disaster Recovery Contingency System and Plan.
RDSI's Disaster Recovery Contingency System and Plan is an ever
changing and growing plan and does not lend itself to inclusion
within this Agreement. RDSI will provide the Bank with periodic
updates and modifications to the plan as they occur and are
included within the plan and effect this Agreement. The Bank is
encouraged to review the RDSI Disaster Recovery Plan in detail and
at length at any time as deemed necessary.
B. RDSI agrees to provide MASTER and TRANSACTION FILE BACK-UP and
Disaster Recovery Contingency Plan, in order to secure and limit
any disruption to the Bank's data processing services as provided
by this Agreement.
C. All Master and Transaction Files (daily activity) are backed up on
a daily basis. The Transaction Files are backed up after the day
shift and after the nightly update. One copy of the Transaction
File is taken off-site, while a second copy is maintained in an
on-site vault. Master Files are backed up each Wednesday and taken
to off-site storage each Friday. Since RDSI processes the
Information Technology, Inc. (ITI) Premier II Software, source
code is no longer maintained at RDSI. All on-site files are stored
in the computer room in locked fireproof cabinets. There is a
manual operator log and the Tape Librarian is responsible for
logging, storing and pulling tapes. Computer operators then mount
and scratch tape files prior to the beginning of the nightly
operations.
D. A summary of the back-up tapes and files maintained in off-site
vault storage are as follows:
- UNISYS OPERATING SOFTWARE and UTILITIES
Backed up when changes occur - copy
maintained off-site.
- TRANSACTION FILE TAPES
Backed up daily - taken off-site daily.
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DATA PROCESSING AGREEMENT - TOWER FINANCIAL CORPORATION - PAGE SIX
- MASTER FILES
Backed up weekly - taken off-site weekly.
- SOURCE CODE PROGRAMS
Maintained by ITI, Lincoln, Nebraska
E. RDSI and its management have secured a Disaster Recovery Hotesite
contractual arrangement with SunGard Recovery Services, Inc. ,
0000 Xxxxxxxx Xxxx, Xxxxx, XX 00000, 1-610/341-8700 or
1-800/247-7832. RDSI is licensed at the Warminster, PA Mega
Center. Complete testing at the Warminster Center facility,
including all applications, as well as capture testing is
conducted by RDSI personnel on an annual basis.
F. In addition, RDSI has developed and maintains a written
comprehensive Disaster Recovery Contingency Plan encompassing
RDSI's data processing operations, as well as communications and
imaging capture center and its service to the Bank. In the event
of a declared disaster emergency, the Bank's transaction items may
be picked up by RDSI personnel and ground courier or transmitted
directly to Warminster Mega Center where processing will be
completed.
G. Hard copy reports may be delivered to the Bank by ground courier
or transmitted via dial-up communications or dedicated data line
communications. This process would continue until service is
restored at the RDSI Data Processing Center or RDSI's Cold Site in
Okaloma, Ohio or Alternative Center or location. The actual RDSI
Disaster Recovery Contingency Plan may be reviewed in its
entirety, by Bank personnel or examiners, but the Plan must be
reviewed in RDSI's secured facilities. RDSI maintains power surge
protection and an Uninterrupted Power Supply (UPS) system on its
Enterprise Servers and computer equipment. If RDSI and the SunGard
Recovery System Plan fails for any reason, RDSI will provide the
Bank copies of necessary files in order to assure the Bank
alternative servicing options.
H. The Bank agrees to have arrangements for back-up facilities
relating to the Bank's own internal operation and equipment, in
effect throughout the period covered by this Agreement failure of
said equipment is not the responsibility of RDSI.
I. RDSI maintains insurance coverage intended to cover data
processing equipment and media, extra expenses for emergency
processing, data reconstruction and emergency daily usage of the
Hotsite.
J. SunGard invoices RDSI monthly for the cost of the RDSI and SunGard
Recovery Contingency Plan, Hotsite membership and testing
resources and time. RDSI passes this cost directly onto its
customers, including the Bank via monthly data processing invoice.
The Bank's portion of this cost is determined by asset size and
actual number of accounts processed, and is subject to change in
direct relation to the contractual agreement between RDSI and
SunGard. These terms may override the Line Item "Disaster Recovery
Contingency Plan Services" found on Addendum A - Fee Schedule of
this Agreement.
K. Declaration of Disaster. If RDSI center or equipment will be
operable within 48 hours of a loss, outage, disaster or emergency,
notification of the SunGard Recovery Center is not required,
however, RDSI reserves the right to declare a disaster if center
recovery is unsure. If outage or loss of equipment is expected to
last beyond twenty-four (24) to forty-eight (48) hours, the RDSI
Management Team will notify the SunGard Recovery Center and begin
recovery procedures in Warminster, PA.
L. RDSI assures the Bank that any individual service interruption
duration's be limited to a period of twenty-four (24) to
forty-eight (48) hours. Failure to comply by RDSI would constitute
default under the terms of this Agreement.
XV. INTERNAL REVENUE SERVICE
A. RDSI will process and provide, according to the Terms of this
Agreement, the required Internal Revenue Service magnetic media or
transmission reporting, as specified by the Internal Revenue
Service.
B. RDSI will make every reasonable effort to satisfy magnetic media
or transmission reporting requirements set forth by the Internal
Revenue Service and this Agreement. In an effort to satisfy and
verify all Internal Revenue Service requirements RDSI will produce
a magnetic media or transmission reporting test, to be forwarded
to the Internal Revenue Service in December of each year for
advance testing and verification by the Internal Revenue Service.
C. In addition, if the Bank is levied a penalty by the Internal
Revenue Service, based upon information provided the IRS by
magnetic media as filed by RDSI, and it is determined that the
penalty levied was not a result of erroneous input by the Bank,
but from a magnetic media of transmission reporting error, the
Bank shall be held harmless, and RDSI will assume responsibility
to resolve the penalty with the Internal Revenue Service. If the
penalty stands, Section VII. Limitation of Liability, shall be
applied.
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DATA PROCESSING AGREEMENT - TOWER FINANCIAL CORPORATION - PAGE SEVEN
XVI. ON-LINE AVAILABILITY
A. RDSI will make every reasonable effort to have the On-Line Inquiry
Services available during the hours as indicated in this Agreement
as follows:
On-Line Availability Schedule
-------------------- --------
8:00 am - 7:00 pm Monday
8:00 am - 7:00 pm Tuesday
8:00 am - 7:00 pm Wednesday
8:00 am - 7:00 pm Thursday
8:00 am - 7:00 pm Friday
8:00 am - 3:00 pm Saturday
Not Available Unless Previously Arranged Sunday
Not Available Unless Previously Arranged Scheduled Holidays
(Based on Federal Reserve Holiday Schedule)
B. RDSI will provide system updates nightly for the Bank. Monday
through Friday, based on the Federal Reserve Schedule. Saturday's
work will be posted or updated during Monday's nightly update. In
addition, Friday's actual reports should not be expected to be
delivered to the Bank until the following Monday morning, delivery
either by ground courier or via the MACROFICHE Report Storage and
Retrieval System or the RECALL Optical Disk System. However, the
on-line system will be available to the Bank on Saturday, so that
regular business may be conducted.
C. RDSI assures on-line availability for balance verification and
transaction authorization to the RDSI Enterprise Server (host
computer) at least ninety-five (95%) of the processing time each
month (excluding scheduled down time for normal system
maintenance) provided the Bank's network and data communication
lines are available. The Bank shall be notified at least one week
in advance of any scheduled Enterprise Server (host computer)
downtime.
D. On a monthly basis, RDSI will ensure that its on-line computing
facilities are available for the processing of the Bank's on-line
transactions at a minimum of ninety-five (95%) of the time, as
prescribed by the Bank, measured over a calendar month at the
point of departure from the RDSI Enterprise Server (host
computer).
E. On-line response time is a direct function of the data
communication line speed and the Bank's internal network. RDSI
will assist the Bank in analyzing and maintaining an acceptable
and satisfactory response time and will assist the Bank in
improving the response time when necessary.
F. Customer Service is perceived as a significant benefit from RDSI.
RDSI will provide Bank responses to questions as follows: (1)
average response within two (2) hours of calling the RDSI Customer
Support Center; and (2) a resolution on average of forty-eight
(48) hours.
G. In the event of human error on the part of RDSI which could be
expected to create an impact on the Bank or the Bank's customers,
RDSI agrees to: (1) notify the Bank of the error within four (4)
hours during normal business hours; (2) develop and implement a
plan of action to be shared with the Bank within eight (8) hours
during normal business hours; (3) resolve the error to limit the
impact to the Bank, as soon as commercially reasonable.
H. RDSI shall notify the Bank of any errors in the RDSI software or
operating system procedures when detected by or reported to RDSI,
that appear to impact the Bank. Such notification shall include a
plan for correction of the error.
I. RDSI will provide the Bank two (2) weeks notice of any change in
routine operating procedures. Changes falling into this category
include but are not limited to: (1) persons to notify in the event
of a problem; (2) form of communications; (3) change in processing
or contact location; and (4) hours of service; etc.
J. RDSI will notify the Bank, in writing, of any enhancements or new
releases of the RDSI software not less than one (1) week prior to
implementation of such changes. RDSI shall make available to the
Bank, in accordance with the published curriculum, training
adequate on all such changes not less than one (1) week prior to
implementation. Training usually is only required should the
changes be system releases and upgrades requiring additional
training or should the Bank elect to use the new functionality.
RDSI will determine if training is necessary and notify the Bank
of the scheduling.
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DATA PROCESSING AGREEMENT - TOWER FINANCIAL CORPORATION - PAGE EIGHT
XVII. DECONVERSION CONSIDERATIONS
A. Upon termination of this Agreement, the Bank may obtain data files
and records relative to itself for the purposes of deconversion to
an alternative data processing solution via machine readable media
based on the following Pricing Agreement Schedule:
1. Magnetic Machine Readable Media - $ 150.00 per tape.
2. Bank agrees to purchase from RDSI all used
special form inventory previously purchased at
RDSI's expense, at cost.
3. All data processing line charges yet to be
invoiced, calculated to the estimated date of
deconversion and actual line disconnect order.
4. Programming and Software Deconversion Charges -
$ 1,500.00.
5. Additional charges, if any, directly relating to
the deconversion, as assessed by Information
Technology, Inc. (ITI), Lincoln, Nebraska. These
charges, if any, as determined by ITI will be
passed through directly to the Bank.
6. Reports, trials, listings, etc. - $ 50.00 per report.
B. All deconversion charges as stated above should be paid by the
Bank to RDSI prior to the release of the final deconversion
magnetic readable media, however, RDSI will waive lien rights in
relationship to the Bank's data and good will.
C. RDSI agrees to waive the deconversion fees as previously stated to
the Bank in the event the Bank terminates the Agreement due to
RDSI's inability to restore service following a declared disaster.
XVIII. PRICING POLICIES
A. As previously stated within the Agreement, RDSI reserves the right
to reduce charges at any time, however, any increase will not
become effective until thirty (30) days, after prior written
notice has been given to the Bank. RDSI and the Bank have agreed
that during the first (1st) two (2) years of this Agreement, rates
shall be fixed at such rates as described in the attached Addendum
A - Fee Schedule. Most favored nation provision exists and
provides that the Bank's fee schedule are no less favorable than
those to any client.
B. It is also agreed that RDSI will not increase its fee schedules in
excess of FIVE percent (5%) per year, in years three, four and
five of this Agreement.
C. The only exceptions to this Pricing Agreement will be those
related to increased account and transaction volumes of the Bank;
new applications and services not presently utilized by the Bank;
increased number of terminals or workstations supported; Saturday
processing; and services not presently covered by this Agreement.
The Bank agrees to buy its own paper supplies: ex: report paper,
statements, checks, notice paper, etc.
D. In addition, ground transportation (Courier Services) charges if
needed, are not covered in the pricing schedule and Terms of
Agreement contained within this Agreement. Transportation charges
will be calculated and invoiced based on allowable IRS mileage and
maintenance guidelines, plus salary considerations, and are
subject to change by RDSI. If ground transportation ever becomes
necessary RDSI will advise the Bank, and obtain the Bank's
approval before ground transportation is utilized.
E. Future price increases relating to Saturday Processing may
supersede the price ceilings as previously stated. However, if the
Bank does not utilize Saturday Processing, price ceilings referred
to in this Agreement shall govern the pricing policy. RDSI will
provide nightly updates for the Bank, Monday through Friday, based
on the Federal Reserve Schedule. However, On-Line Services will be
available to the Bank on Saturdays, based on the schedule as
outlined in Section XVI. Of this Agreement.
XIX. YEAR 0000 XXXXXXXXXXXXX
XXXX represents and warrants that the services provided are, or will by
September 30, 1999, be, capable of supporting Year 2000 functionality and will
function in accordance with the specifications in a multi-century,
multi-millennium environment. For purposes of this section, "supporting Year
2000 functionality" shall mean that the services provided hereunder must provide
fault-free performance in the processing of dates and date-related data,
including but not limited to calculating, comparing and sorting individually and
in combination with other RDSI products and services. "Fault-free performance"
shall mean the correct manipulation of data containing dates prior to, through
and beyond January 1, 2000 (including leap year computations) without human
intervention. Any modifications required to conform the data processing services
provided by RDSI to Year 2000 functionality will be made by RDSI at their own
expense. However, associated cost for assistance and
9
DATA PROCESSING AGREEMENT - TOWER FINANCIAL CORPORATION - PAGE NINE
testing of the Bank's own data and files and equipment that may be required by
the various regulatory authorities will be the responsibility of the Bank. Any
such charges will be reviewed and authorized by the Bank with prior written
notice.
XX. NONSOLICITATION OF EMPLOYEES
HIRING OF EMPLOYEES. During the term of this Agreement and for a period of
twelve (12) months thereafter, RDSI and the Bank will not, without prior written
consent of the other, offer employment to or employ any person employed by the
other if the person was involved in providing or receiving services under this
Agreement.
XXI. PATENT INDEMNITY
Each of RDSI and the Bank shall indemnify, defend and hold harmless the other
from any and all claims, actions, damages, liabilities, costs and expenses,
including without limitation reasonable attorney's fees and expenses, arising
out of any claims of infringement of any United States letters patent, any trade
secret, or any copyright, trademark, service xxxx, trade name or similar
proprietary rights conferred by common law or by any law of the United States or
any state alleged to have occurred because of systems provided or work
performed. However, this indemnity will not apply unless the party seeking
indemnity informs the party from whom indemnification is sought full opportunity
to control the defense thereof, including without limitation any agreement
relating to settlement.
XXII. ENTIRE AGREEMENT AND NOTICES
A. This Agreement, together with all addendum's, appendices or other
attachments referenced herein, is complete and exclusive statement
of the Agreement between the parties, the Bank and RDSI.
B. NOTICES. All notices and other communications hereunder will be in
writing and will be deemed to have been validly given or delivered
by hand or in the United States mail, first class (or in the case
of a breach, registered or certified, return receipt requested
with proper postage, registration and certification fees prepaid),
addressed to the party for whom intended at the respective
addresses set forth below, or such other address as may be
designated, pursuant hereto:
If to RDSI: If to the Bank:
000 Xxxxxxx Xxxxxx 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxx X. Xxxxxxxxx Attention: Xxxxxx X. Xxxxxxxx
Senior Vice President President & Chief Executive Officer
Dated: October 1, 1998 RURBANC DATA SERVICES, Inc.
-----------------------
By: /s/ Xxx X. Xxxxxxxxx
--------------------------------------
Title: Senior Vice President
-----------------------------------
TOWER FINANCIAL CORPORATION
TOWER BANK & TRUST
FORT XXXXX, INDIANA
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: President
-----------------------------------
10
DATA PROCESSING AGREEMENT - TOWER FINANCIAL CORPORATION - PAGE TEN
ADDENDUM A - FEE SCHEDULE
PREMIER II SYSTEM
DDA - $ .35/account per month ($100.00 monthly minimum) - All open
accounts on file
DDA - $ .20/account per month - All closed accounts on file
DDA - $ .05/account - statement printing @ RDSI
Savings - $ .18/account per month ($100.00 monthly minimum) - All open
accounts on file
Savings - $ .10/account per month - All closed accounts on file
Certificates of Deposits - $ .18/account per month ($100.00 monthly
minimum) - All open accounts on file
Certificates of Deposits - $ .10/account per month - All closed accounts
on file
Loans - $ .35/account per month ($100.00 monthly minimum) - All open
loans/accounts on file
Loans - $ .15/account per month - All closed loans/accounts on file
Central Information System - $.10/portfolio per month ($100.00 monthly
minimum)
Financial General Ledger Management System -
1 - 500 accounts 1.20/account per month
501 - 1000 accounts .50/account per month
1001 accounts and over .25/account per month
Addenda's - $ .05/addenda per month
Credit Bureau Reporting - $ 15.00/tape per credit bureau - reporting period
Automated Clearing House (ACH) - included
Recall Software Maintenance - $ 30.00/month - pass through from Data Works
- subject to change
Macrofiche Annual Maintenance - $ 2,700.00 per year invoiced annually
ATM Network Support - $.05/atm/debit card account per month ($150.00
monthly minimum)
Communication Device Support - (includes PC's, CRT's, Proof Machines,
Recall, Macrofiche, etc.)
1 - 20 Fee Per Device with Premier II 30.00/device per month
21 and over Fee per Device with Premier II 20.00/device per month
Teller Terminal System Interface & Support - $ .02/total number of
accounts (Deposits & Loans)($100.00 monthly minimum)
Year End Processing, reporting & IRS Forms - $.15/total number of accounts
- annually
Confirmations - $ .10/form - ON REQUEST ONLY
Report Printing @ RDSI - $ .01/total number of accounts - ON REQUEST ONLY
Mailing Labels - $ .10/label - ON REQUEST ONLY
Pull Files - $ .004/total number of accounts pulled ($50.00 pull file
minimum)
Disaster Recovery Contingency Plan Services:
RDSI passes monthly membership cost from Hotsite provider (SunGard)
directly onto its customers via monthly processing invoice. The
Bank's portion of this cost is determined by asset size and actual
number of accounts processed, and is subject to change in direct
relation to the contractual agreement between RDSI and the Hotsite
provider. RDSI carries insurance to cover actual use of the Hotsite
during an actual declared disaster.
Minimum Monthly Fee $70.00/month
Communications Equipment and Line Support and Maintenance - $75.00/data
line per month
Third Party Audit Review - RDSI passes cost of the review onto its customer
base. The Bank's portion is determined by asset size and actual
number of accounts processed, and is subject to change in direct
relation to the actual cost of the examination.
Documentation (Manuals) - RDSI provides On-Line Documentation System. All
manuals and related documentation are maintained through the on-line
system.
Dated: October 1, 1998 RURBANC DATA SERVICES, Inc.
-----------------------
By: /s/ Xxx X. Xxxxxxxxx
-------------------------------------
Title: Senior Vice President
----------------------------------
TOWER FINANCIAL CORPORATION
TOWER BANK & TRUST
FORT XXXXX, INDIANA
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Title: President
----------------------------------
11
DATA PROCESSING AGREEMENT - TOWER FINANCIAL CORPORATION
ADDENDUM E - FEDERAL CALL REPORTING SYSTEM
THE FEDERAL CALL REPORTING SYSTEM GENERATES CALL REPORTS QUICKLY, SIMPLY AND
COMPLETELY. ONE PRIMARY CHARACTERISTIC THAT DISTINGUISHES THE RDSI FEDERAL CALL
REPORT SYSTEM IS ITS ABILITY TO GATHER AND EXTRACT INFORMATION FROM DEPOSIT,
LOAN, GENERAL LEDGER AND BOND APPLICATION DATE BASES.
RDSI Installation fee (one time charge) $ 250.00
RDSI Monthly Fee $ 50.00
RDSI Monthly Minimum $ 50.00
EARLY TERMINATION AGREEMENT:
This Addendum for the Federal Call Report System has been licensed from ITI,
based on a Three (3) Year Term. This directly determines the price as quoted in
this Addendum. In the event that the Bank terminates this Addendum Agreement
prior to the expiration date of this Addendum Agreement (calculated from 36
months from the date of this Addendum Agreement found at the bottom of this
page), the following formula will be used to calculate the early termination
charge to be assessed to the Bank.
The Early Termination Charge will be determined by taking the Average Total
Accounts (Loans and Deposits) calculated over the previous three (3) processing
months, multiplied times the per account Monthly Fee, multiplied times the
Remaining Months of this Addendum Agreement. ACCEPTED________ DATE________/
WAIVED______ DATE_____________
Dated: October 1, 1998 RURBANC DATA SERVICES, Inc.
-------------------------------------
By: /s/ Xxx X. Xxxxxxxxx
---------------------------
Title: Senior Vice President
------------------------
Date Installed:
--------------------- TOWER FINANCIAL CORPORATION
FORT XXXXX, INDIANA
Date Invoiced:
----------------------
Date Installation Fee Invoiced: By: /s/ Xxxxxx X. Xxxxxxxx
------------ ----------------------------
Title: President
-------------------------
12
DATA PROCESSING AGREEMENT-TOWER FINANCIAL CORPORATION
ADDENDUM M - ON-LINE TELLER INTERFACE SYSTEM
ON-LINE TELLER INTERFACE SYSTEM
RDSI Monthly Processing Fee $.02/Total Number of Accounts
(Deposits and Loans)
RDSI Monthly Minimum $100.00
Dated: October 1, 1998 RURBANC DATA SERVICES, Inc.
-------------------------------------
(Addendum Agreement Date)
By: /s/ Xxx X. Xxxxxxxxx
----------------------------
Title: Senior Vice President
-------------------------
Date Installed:
-----------------
TOWER FINANCIAL CORPORATION
Date Invoiced: FORT XXXXX, INDIANA
------------------
Date Installation Fee Invoiced: By: /s/ Xxxxxx X. Xxxxxxxx
----------- ----------------------------
Title: President
-------------------------
