Exhibit 10(1)
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AGREEMENT FOR
INFORMATION TECHNOLOGY SERVICES
BETWEEN
XXXX COMMUNITY BANK, sb
AND
AURUM TECHNOLOGY INC.
TABLE OF CONTENTS
I. DEFINITIONS
II. TERM
III. SERVICES
IV. CUSTOMER RESPONSIBILITIES
V. PAYMENTS TO AURUM
VI. SYSTEMS, DATA, AND CONFIDENTIALITY
VII. DISPUTE AVOIDANCE AND DISPUTE RESOLUTION
VIII. TERMINATION AND RELATED MATTERS
IX. LIABILITY AND INDEMNITY
X. MISCELLANEOUS
SCHEDULES
SCHEDULE A: SERVICES
SCHEDULE B: TRAINING, CONVERSION, AND IMPLEMENTATION SERVICES
SCHEDULE C: FEE SCHEDULE
SCHEDULE D: PROCESSING SCHEDULE
SCHEDULE E: PERFORMANCE STANDARDS
SCHEDULE F: NETWORK MANAGEMENT SERVICES
SCHEDULE G: VERIFICATION OF CONTRACT DATES
SCHEDULE H: CUSTOMER SYSTEMS
AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES
This AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES ("Agreement") is
between Aurum Technology Inc. (hereinafter "Aurum" or "Company"), a Delaware
corporation with an address at 0000 X. Xxxxx Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxx
00000-0000, and Xxxx Community Bank, sb (hereinafter "Customer"), a financial
institution with an address at 000 X. Xxxxxx Xxxxxx, Xxxxxxx, XX 00000.
WHEREAS, Customer desires to purchase certain information technology
services from Aurum; and
WHEREAS, Aurum desires to provide certain information technology services
to Customer under the terms hereof:
NOW THEREFORE, Customer and Aurum hereby agree as follows:
ARTICLE I - DEFINITIONS
1.1 Definitions. In this Agreement:
(a) "Additional Services" are the services described in Section
3.1(f).
(b) "Additional Services Fees" are the fees charged Customer for
Additional Services.
(c) "Aurum Equipment" means equipment located on Aurum premises.
(d) "Aurum Systems" are all Systems, except for Customer Systems, used
by Aurum to provide Services, including any improvements,
modifications, or enhancements thereto.
(e) "Business Day" is each weekday, Monday through Friday, which is
not a holiday of the Federal Reserve Bank for the Federal Reserve
District in which Customer's principle office is located.
(f) "Conversion and Implementation Services" are the services
described in Section 3.1(c).
(g) "Customer Equipment" means equipment at Customer's site(s)
including all telecommunications lines and telecommunications
processing equipment required by Aurum for Customer to access the
Aurum Systems, transmit data to Aurum, and receive reports and
other output from Aurum.
(h) "Customer Systems" are the Systems listed in Schedule II, owned by
Customer or licensed by Customer directly from a third party,
which Customer has asked Aurum to install on Aurum Equipment for
use in conjunction with Aurum Systems. Customer Systems do not
include Licensed Software as defined herein.
(i) "Data Center" is the space at one or more locations where Aurum
performs Services, excluding Customer locations.
(j) "Base Monthly Services" are the services described in Section
3.1(a).
(k) "Base Monthly Services Fees" are the fees charged Customer for
Base Monthly Services.
(l) "ECI" shall mean the Employment Cost Index for Total Compensation
(not seasonally adjusted), Private Industry Workers, White-collar
occupations excluding sales, June 1989 = 100, as published by the
Bureau of Labor Statistics of the United States Department of
Labor.
(m) "ECI Base Index" shall mean the ECI Current Index from the last
anniversary of the Effective Date on which the Adjustable Charges
were increased, or, if the Adjustable Charges have never been
increased, the ECI most recently published as of the Effective
Date.
(n) "ECI Current Index" shall mean the most recently published ECI as
of any anniversary of the Effective Date.
(o) "Effective Date" is the date that this Agreement is executed by
Aurum in accordance with Section 10.11 hereof.
(p) "Equipment" means Customer Equipment and Aurum Equipment.
(q) "Initial Term" is defined in Section 2.1.
(r) "Licensed Software" means, if applicable, the software
applications for which Customer is granted a license under the
terms of a license agreement which is part of this Agreement or a
license agreement Aurum arranges for Customer to execute directly
with a third party licensor. Such Licensed Software applications
are listed in Schedule A.
(s) "Operational Date" is the later of (i) the Effective Date, or (ii)
the day in which any Conversion Services are completed and
Customer has the capability to input transactions or data for
processing by Aurum.
(t) "Operational Services" are the services described in Section
3.1(b).
(u) "Renewal Term(s)" is defined in Section 2.2.
(v) "Service" or "Services" are all of the services to be provided by
Aurum under this Agreement, which include the Base Monthly
Services, Operational Services, and Training, Conversion and
Implementation Services.
(w) "System" or "Systems" are (i) computer programs, including
software, firmware, application programs, operating systems,
files, and utilities; and (ii) supporting documentation for such
computer programs, including input and output formats, program
listings, narrative descriptions, operating instructions and
procedures, user and training documentation, special forms, and
source code.
Other terms are defined elsewhere in this Agreement.
1.2 References. In this Agreement and the Schedules in all instances except
those when the context requires otherwise:
(a) The Schedules to this Agreement shall be incorporated in and
deemed part of this Agreement. All references to and mentions of
this Agreement shall include the Schedules to this Agreement;
(b) References to and mentions of the word "including" in this
Agreement shall mean "including, without limitation".
1.3 Headings. The article and section headings are for reference and convenience
only and shall not be considered in the interpretation of this Agreement.
ARTICLE II - TERM
2.1 Initial Term. This Agreement will begin on the Effective Date and, unless
terminated earlier as provided in this Agreement, will continue for a
period of five (5) years from the Operational Date (the "Initial Term").
2.2 Renewal Term. Thereafter, this Agreement will automatically renew for
successive terms of five (5) years each (the "Renewal Term") unless
either party gives the other party written notice at least twelve (12)
months prior to the expiration date of the Initial Term or the Renewal
Term then in effect that the Agreement will not be renewed beyond such
term.
ARTICLE III - SERVICES
3.1 Services Provided. Aurum or its subcontractors will provide Customer with
the following Services:
(a) Base Monthly Services. Base Monthly Services are those services
Aurum will provide on a regular basis during the Initial Term or
any Renewal Term. The Base Monthly Services are listed on Schedule
A. Customer agrees that Aurum shall be the sole and exclusive
provider of the Services.
(b) Operational Services. Operational Services are those services
listed in Schedule C, Section II, which are not part of the Base
Monthly Services but which are available for Customer each month.
The Operational Services are charged on a transaction or
occurrence basis.
(c) Conversion and Implementation Services. Conversion and
Implementation Services are those services described in Schedule
B.
(d) Training Services. Aurum shall provide those Training Services
listed in Schedule B.
(e) Interface Development Services. Aurum may agree to provide
services for development of Customer-requested interfaces to third
party software. Interfaces which Aurum agrees to develop are
listed in Schedule B.
(f) Additional Services. Customer from time to time may request that
Aurum perform services that are outside the scope of the Services
but that are related to Customer's information technology needs.
Such services are herein referred to as Additional Services
("Additional Services"). Aurum shall notify Customer within a
reasonable time after receipt of Customer's request, as to whether
Aurum desires to perform such Additional Services. If Aurum
desires to perform such Additional Services, Aurum shall promptly
provide Customer with an Additional Services proposal containing a
description of the scope and functionality of such Additional
Services and an estimate, as may be applicable, of the computing,
communications, human resources, and capacity requirements
necessary to develop and implement such Additional Services, and
the Additional Services Fees associated therewith. In the event
Customer elects to have Aurum perform the Additional Services,
Aurum shall do so on such written terms as shall be mutually
agreed by Aurum and Customer.
3.2 General Terms Relating to Services. Aurum will:
(a) Beginning on the Operational Date, operate the Aurum Systems at
the Data Center, and accept data and other input from Customer.
Aurum will make daily, monthly, and other reports and output,
including specially requested reports, available for transmission
to Customer, subject to Customer's timely delivery or transmission
of data and other input to the Data Center for processing. Aurum
will provide the Services in accordance with Schedule D,
Processing Schedule, which may be amended by Aurum and Customer
from time to time. Aurum will not be responsible for the loss of
any input or output during transit.
(b) Except as otherwise agreed between the parties, provide all
Customer Equipment at Customer's expense, including related
shipping, installation, and maintenance charges, and advise
Customer on the compatibility of Customer's Equipment with the
Aurum Systems. Customer may elect, with Aurum's approval, to
provide certain Customer Equipment at Customer's expense, subject
to charges for Additional Services required for Aurum Systems
access or configuration.
(c) Provide for Customer's use one copy of Aurum's standard user
documentation and one copy of any revisions describing the
preparation of input for and use of output from the Aurum Systems.
Such documentation will address the reports provided under this
Agreement. Upon Customer's request, Aurum will provide additional
copies of such documentation at Aurum's then standard charges.
(d) Correct any errors in Customer files that result in errors in
reports or other output where such errors (i) are due solely to
either malfunctions of Aurum's Equipment or the Aurum Systems or
errors of Aurum's operators, programmers, or other personnel, and
(ii) are called to Aurum's attention within the time frames
specified in Section 4.3. Aurum will, to the extent reasonably
practicable, correct any other errors as an Additional Service.
(e) Provide standard Aurum forms for use at the Data Center.
(f) Establish, modify, or substitute from time to time any Aurum
Equipment, processing priorities, programs, or procedures used in
the operation of the Aurum Systems or the provision of the
Services that Aurum reasonably deems necessary, and notify
Customer of any such changes that will affect Customer's
operations.
3.3 Audits. No more than one per year, and upon no less than twenty-four (24)
hours prior written notice from Customer, Aurum will provide auditors and
inspectors that Customer designates in writing with access to the Data
Center during business hours for the limited purpose of performing audits
or inspections of Customer's business. Aurum will provide to such
auditors and inspectors assistance as Aurum deems reasonable. Customer
shall bear all expenses associated with such audit or inspection and
shall also compensate Aurum for any Additional Services provided in
connection with the audit or inspection. Customer shall insure that any
audit or inspection requested by Customer shall be conducted without
undue disruption to Aurum's business or operations. Aurum will not be
required 1) to provide access to data of other Aurum customers, or 2)
permit access to the Data Center during such times as Aurum deems that
such access would be likely to create undue disruption to its operations
(i.e., when other auditors and inspectors are present).
3.4 Regulatory Compliance. Aurum will endeavor to maintain the Aurum Systems
so that they will not be disapproved by any federal regulatory authority
with jurisdiction over Customer's business. If Customer believes that any
modifications to the Aurum Systems are required under any laws, rules, or
regulations, Customer will promptly so inform Aurum. Aurum will perform
any modifications to the Aurum Systems or recommend changes to operating
procedures of Customer that Aurum determines are necessary or desirable;
provided, that if any such changes or modifications result in a
significant increase in Aurum's cost of providing Services, Aurum will be
entitled to increase the charges under this Agreement by an amount that
reflects a pro rata allocation of Aurum's increased cost among the
applicable Aurum customers. New or enhanced Aurum System features,
functions, reports, or other Services that may result from such
modifications or recommendations may be provided as an Additional
Service. Notwithstanding the foregoing, Customer acknowledges that the
Aurum Systems may, from time to time, consist in part of System(s)
licensed by Aurum from third-party vendor(s) and, therefore, Aurum shall
have no duty or responsibility to modify any such third-party System
under this Section, except to the extent that the vendor thereof has such
a duty or responsibility to modify such System pursuant to the applicable
license agreement between Aurum and such vendor.
3.5 Financial Statements and EDP Audit. Upon request, Aurum will provide at
no charge one copy of Aurum's most recent audited financial statements to
Customer. Upon request, Aurum will also provide to Customer one copy of
Aurum's most recent independent Data Center EDP audit at Aurum's then
standard charge for such copy.
3.6 Licensed Software. Aurum will either (i) license to Customer or (ii)
arrange with the appropriate third party vendor for a direct license, or
a sublicense through Aurum, to Customer of the Licensed Software.
Customer will execute any such license or sublicense that may be required
by such vendor and will be responsible for compliance with all terms and
conditions thereof. Customer shall also be responsible for purchasing and
maintaining in force the appropriate maintenance and support services.
ARTICLE IV - CUSTOMER RESPONSIBILITIES
4.1 Maintenance of Equipment. Customer will maintain or arrange to have
maintained all Customer Equipment owned or leased by Customer in good
working order in accordance with manufacturer's specifications. Aurum
will maintain or arrange to have maintained all Aurum Equipment.
4.2 Provision of Customized Forms. Unless otherwise agreed in writing,
Customer will provide or pay for all customized forms required by
Customer. Those forms will conform to Aurum's reasonable specifications.
Customer will also provide all forms produced or printed at Customer's
premises and required for the performance of Services, or will pay
mutually agreed charges to Aurum for such forms if provided by Aurum at
Customer's request.
4.3 Correction of Reports and Output. Customer will balance reports to verify
master file information and will inspect and review all reports and other
output (whether printed, microfiche or electronically transmitted)
created from data provided by Customer to Aurum. Customer will reject all
incorrect reports or output (i) within two Business Days after receipt of
daily reports or output, (ii) within five Business Days after receipt of
annual, quarterly, or monthly reports or output, and (iii) within three
Business Days after receipt of all other reports or output.
4.4 Provision of Data. Customer will be responsible for the quality and
accuracy of all data and other input provided to Aurum. Aurum may, at its
option, return to Customer for correction before processing any data
submitted by Customer that is incorrect, illegible, or not in proper
form. If Customer does not provide its data to Aurum in accordance with
Aurum's specified format and schedule, Aurum will use reasonable efforts
to reschedule and process the data as promptly as possible. Customer
agrees to pay Aurum for any additional expenses Aurum incurs in assisting
Customer as provided in this Section 4.4.
4.5 Use of System, Procedures. Customer will comply with all operating
instructions for the Aurum Systems that are issued by Aurum from time to
time. Except as otherwise provided in this Agreement, Customer will be
responsible for the supervision, management, and control of its use of
the Aurum Systems, including (i) implementing sufficient procedures to
satisfy its requirements for the security and accuracy of the data and
other input Customer provides, (ii) implementing reasonable procedures to
verify reports and other output from Aurum within the time frames
specified in Section 4.3, and (iii) specifying the methods of processing
(for example, accrual calculations) to be used by Aurum in providing the
Services from the options available in the Aurum Systems.
4.6 Customer Systems. Customer will provide, at Customer's expense, the
Customer Systems. Customer will be responsible for any license or
maintenance fees related to providing the Customer Systems for use by
Aurum in connection with the Services. Customer will, at Customer's
expense, ensure that the Customer Systems are at all times compatible
with the Aurum Systems and Aurum will have no liability hereunder for any
delay or failure to perform Services which arises as a result of the
failure of Customer to maintain any Customer System so that it is
compatible with the Aurum Systems. Customer warrants that Customer
Systems do not and will not infringe upon the proprietary rights of any
third party and that Customer has the right to provide such Customer
Systems to Aurum for use as contemplated under this Agreement. Customer,
at its own expense, shall defend, indemnify, and hold harmless Aurum from
any claim, demand, cause of action, debt or liability (including
attorneys' fees and costs) to the extent it is based upon a claim that
any of the Customer Systems infringes or violates the patent, copyright,
license or other proprietary right of a third party or any claim that
Aurum's use of the Customer Systems hereunder is not permitted.
4.7 Network Security. Customer shall inform Aurum prior to creating any
connection to an Internet Service Provider (ISP) or other computer
services company if such connection is made from any point on Customer's
computer network that is connected to Aurum. In the event that such a
connection to the Internet is to be made, Customer must first obtain the
firewall and Internet security policy document of Aurum. Customer hereby
agrees to abide by the rules contained in such document. This document
shall be provided to Customer at Customer's request. This document may be
revised from time to time to keep current with technology and Customer
shall be solely responsible for ensuring its compliance with the most
current requirements.
ARTICLE V - PAYMENTS TO AURUM
5.1 Service Fees. Customer will pay Aurum for the Services as follows:
(a) For Base Monthly Services, which are comprised of the Account
Processing Fees and the Application Processing Fees, the monthly
charges listed in Section I of Schedule C.
(b) For Operational Services, the monthly charges listed in Section II
of Schedule C.
(c) For Conversion and Implementation Services, the Conversion and
Implementation charges listed in Section IV of Schedule C.
(d) For Training Services, the Training charges listed in Section V of
Schedule C.
(e) For Interface Development, the Interface Development charges
listed in Section VI of Schedule C.
(f) For Additional Services, or for additional Conversion and
Implementation, Training, and Interface Development services,
Aurum's then standard charges for such services agreed to in
advance and in writing, or, if Aurum then has no standard charges
for such services, upon whatever other basis that the parties
agree.
5.2 Additional Charges. Customer will also pay Aurum the following, if
applicable:
(a) All costs incurred by Aurum (i) in mailing reports or other output
to Customer, its customers, or third parties, and (ii) in
transporting, shipping, or delivering reports, output, or input
between the Data Center and Customer's locations.
(b) All actual, out-of-pocket costs and expenses, including travel and
travel-related expenses, which are incurred by Aurum or on behalf
of Aurum and its personnel in providing Services when incurred at
Customer's request or when required to be provided at Customer's
facility or any other location.
(c) Any other charges expressly provided in this Agreement.
(d) All taxes, however designated or levied, based upon any charges
under this Agreement, or upon this Agreement or the Systems,
Services, or materials provided hereunder, or their use, including
state and local privilege or excise taxes based on gross revenue,
sales and use taxes, and any taxes or amounts in lieu thereof paid
or payable by Aurum in respect of the foregoing, exclusive,
however, of franchise taxes and taxes based on the net income of
Aurum.
5.3 Time of Payment. Except as otherwise provided herein or in a Schedule,
Aurum will invoice Customer at the end of each month for the Services
provided during that month. All charges under this Agreement will be due
and payable within ten days of invoice date. Any charges not paid within
thirty days of invoice date will bear interest until paid at a rate equal
to the lesser of 1.5% per month or the maximum interest rate allowed by
applicable law. Training, Conversion and Implementation, and Interface
Development Fees are due and payable as provided in Schedule C.
5.4 Annual Adjustment to Charges.
(a) If, on any anniversary of the Effective Date, the ECI Current
Index is higher than the ECI Based Index, then, effective as of
such anniversary, the Adjustable Charges will be increased by the
percentage that the ECI Current Index increased from the ECI Base
Index. For purposes of this Section 5.4, "Adjustable Charges"
shall mean the Base Monthly Services Fees and Operational Services
Fee.
(b) In the event that the Bureau of Labor Statistics ceases to publish
the ECI or substantially changes its content, format, or
calculation methodology, Customer and Aurum shall substitute
therefor another comparable measure published by an agreed-upon
source; provided, however, that if such change is to redefine the
base period for the ECI from one period to some other period, the
parties shall continue to use the index but shall, if necessary,
convert either the ECI Base Index or the ECI Current Index to the
same basis as the other by multiplying such index by the
appropriate conversion factor.
5.5 Disputed Amounts. If Customer in good faith disputes any amounts invoiced
hereunder, Customer agrees to provide written notification of such
dispute to Aurum, setting forth the reason for the dispute. Such notice
shall be given prior to the date that the disputed payment is due to
Aurum. Customer may elect to withhold payment of any validly disputed
amount due (subject to the limitation set forth in Section 5.6 below)
until the dispute is resolved by the parties, or unless Customer is
otherwise required to pay the disputed amount to an escrow agent or to
Aurum in accordance with the dispute resolution process set forth in this
Agreement. If the dispute involves only a portion of such invoice,
Customer agrees to withhold only the disputed amount (subject to the
limitation set forth in Section 5.6 below), and to timely pay the
undisputed portion of the amount invoic3ed. The parties agree to
immediately negotiate in good faith to resolve the dispute. If the
dispute cannot be resolved prior to the date when the amounts would be
otherwise due hereunder, then Aurum may, at is option, require that the
amount withheld in dispute be paid over to an escrow agent mutually
agreed upon by Aurum and Customer, pending the resolution of such
dispute. If the parties are unsuccessful in resolving such dispute within
thirty (30) days of the date of the written notice of dispute from
Customer to Aurum, then either party may initiate the dispute resolution
processes provided for in this Agreement.
5.6 Termination of Services for Reason of Non-Payment. Aurum agrees that for
so long as it is being paid for its Services hereunder, or for so long as
the dispute resolution provisions of this Agreement are being complied
with (provided however that Aurum must have timely received at least
eighty-five percent (85%) of the amounts due hereunder regardless of
whether such amount may be disputed by Customer), Aurum will not
terminate provision of Services hereunder as a result of such non-payment
of disputed amounts; provided, however, that if Aurum has not been timely
paid all non-disputed amounts due or at least eighty-five percent (85%)
of the amounts due hereunder if a disputed amount has not been paid over
to Aurum in compliance with the dispute resolution procedures set forth
in this Agreement, or if Aurum, using reasonable judgment, determines
that Customer is withholding amounts due without reasonable cause, then
Aurum may, after having provided Customer with ten (10) days advance
written notice, discontinue provision of Services to Customer hereunder
until all required payments due to Aurum are received. The provisions of
this Section 5.6 shall not operate as a waiver of any other remedies as
to either party.
ARTICLE VI - SYSTEMS, DATA, AND CONFIDENTIALITY
6.1 Aurum Systems. All Aurum Systems are and shall remain the exclusive
property of Aurum or licensors of such Aurum Systems, as applicable, and,
except as expressly provided in this Agreement, Customer shall have no
ownership interest or other rights in any Aurum System. Customer
acknowledges that the Aurum Systems include Aurum proprietary information
and agrees to keep the Aurum Systems confidential at all times. upon the
expiration or termination of this Agreement, Customer will return all
copies of all items relating to the Aurum Systems which are in the
possession of Customer and certify to Aurum in writing that Customer has
retained no material relating to the Aurum Systems.
6.2 Customer's Information. Information relating to Customer or its customers
contained in Customer's data files is the exclusive property of Customer.
Aurum agrees to hold in confidence all proprietary information of
Customer and its customers provided to Aurum in accordance with Section
6.3. However, upon the request of any appropriate federal or state
regulatory authority with jurisdiction over Customer's business and after
Aurum has, when reasonably possible, notified Customer of such request,
Aurum will allow such authority access to all records and other
information of Customer and its customers in the possession of Aurum and
provide as an Additional Service any related assistance that is required.
Promptly after the termination or expiration of this Agreement and the
payment. to Aurum of all sums due and owing, including any amounts due
under Sections 8.5 or 8.6, Aurum will, at Customer's request and expense,
return to Customer all of Customer's information, data, and files in
Aurum's then standard machine-readable format and media.
6.3 Confidentiality. Except as otherwise provided in this Agreement, Aurum
and Customer each agree that all information communicated to one by the
other or the other's affiliates, whether before or after the Effective
Date, will be received in strict confidence, will be used only for
purposes of this Agreement, and except for the requirements of Section
6.2 will not be disclosed by the recipient party, its agents,
subcontractors, or employees without the prior written consent of the
other party. Each party agrees to take all reasonable precautions to
prevent the disclosure to outside parties of such information, including
the terms of this Agreement, except as required by legal, accounting, or
regulatory requirements beyond the reasonable control of the recipient
party. If Customer is required to disclose any proprietary information of
Aurum in accordance with any such legal, accounting, or regulatory
requirements, then Customer will promptly notify Aurum of such
requirement and will corporate with Aurum (at Aurum's expense) in Aurum's
efforts, if any, to avoid or limit such disclosure (including obtaining
an injunction or an appropriate redaction of the proprietary information
in question). The provisions of this Section will survive the expiration
or termination of this Agreement for any reason.
6.4 Safeguarding Data Integrity. Aurum will maintain internal computer data
integrity safeguards (such as access codes and passwords) to protect
against the accidental or unauthorized deletion or alteration of
Customer's data in the possession of Aurum. Aurum will provide additional
internal computer data integrity safeguards that Customer reasonably
requests as an Additional Service. Aurum will also employ and maintain
controlled access systems in the Data Center.
6.5 Contingency Planning. The parties will perform the following regarding
contingency planning:
(a) Aurum will develop, maintain and, as necessary in the event of a
disaster, execute a business resumption plan (the "Aurum Plan")
for the Data Center and will provide to Customer and its auditors
and inspectors such access to the Aurum Plan as Customer may
reasonably request from time to time. Aurum will not be required
to provide access to information of other Aurum customers.
(b) Customer will develop, maintain and, as necessary in the event of
a disaster, execute a business resumption plan (the "Customer
Plan") for all Customer locations and the telecommunications links
between Customer locations and the Data Center and will provide to
Aurum such access to the Customer Plan as Aurum may reasonably
request from time to time.
(c) Aurum will provide to Customer such information as may be
reasonably required for Customer to assure that the Customer Plan
is compatible with the Aurum Plan.
(d) Each party will be responsible for the training of its own
personnel as required in connection with fill applicable
contingency planning activities.
(e) Each party's contingency planning activities will comply, as
appropriate, with such of the following regulatory policies as may
be applicable to Customer's business, as the same may be amended
or replaced from time to time: (i) Federal Deposit Insurance
Corporation, Financial Institution Letter FIL-68-97, dated July
14, 1997; (ii) Federal Reserve System Supervision and Regulation,
Number SR 97-15, dated May 2, 1997; and (iii) Office of the
Comptroller of the Currency, OCC 97-23, dated May 16, 1997; (iv)
Office of Thrift Supervision, CEO Ltr 72, dated July 23, 1997; and
(v) National Credit Union Administration, Letter to Credit Unions
NO. 97-CU-3, dated April 7, 1997. It. compliance with any
amendments or replacements of the policies listed above would
significantly increase Aurum's cost of providing Services, Aurum
will be entitled to increase the charges under this Agreement by
an amount that reflects a pro rata allocation of Aurum's increased
cost among the applicable Aurum customers.
ARTICLE VII - DISPUTE AVOIDANCE AND DISPUTE RESOLUTION
7.1 Appointment of Liaison Officer. Within ten (10) days after execution of
this Agreement, each party agrees to appoint a Liaison Officer who shall
have the direct responsibility for communicating with the other party
under this Agreement. Each party shall promptly notify the other party of
the Liaison Officer selected.
7.2 Avoidance of Disputes. To attempt to ensure that there will not be
disputes arising under this Agreement, the parties agree that, during the
term of this Agreement, their respective Liaison Officers and/or their
designees shall communicate regularly (as often as mutually agreed) in
order to review performance, discuss problem areas and provide input,
guidance, and priority assistance to Aurum and Customer to help provide
maximum benefit to Customer from the Services provided hereunder. Both
parties agree to promptly respond to performance problems and issues, and
will timely respond to the other party's reasonable requests for
information regarding such problems and issues. This requirement for
communication between the Liaison Officers shall not prevent exchange of
information and ongoing routine dialogue between members of the Aurum's
data center staff and Customer's employees.
7.3 Alternate Dispute Resolution. In the event that Aurum and Customer have a
dispute over any matter relating to this Agreement which has not been
resolved in the normal course of business or through communication
between the respective Liaison Officers, then Aurum's and Customer's
designated representatives, along with Aurum's and Customer's respective
Liaison Officers shall be required to meet within five (5) days of a
written request for a meeting by either party delivered to the other
party in accordance with the notice provisions of this Agreement. Such
meeting shall take place at a mutually agreeable site, and shall occur at
a mutually agreeable time. Each party's representatives shall be granted
the authority by their respective organization to resolve the dispute and
commit and bind their respective organization to any agreement reached at
the meeting. The representatives of the parties shall attend such meeting
or meetings accompanied by any other person or persons they believe are
necessary to reach a resolution of the dispute. The designated
representatives shall continue to meet as often as the parties reasonably
deem necessary in order to gather and furnish to the other all
information with respect to the matter in issue which the parties believe
to be appropriate and germane in connection with resolution of the issue.
The parties will discuss the problem and negotiate in good faith in an
effort to resolve the dispute or renegotiate the applicable section or
provision without the necessity of any formal proceeding relating
thereto. During the course of such negotiation, all reasonable requests
made by one party to the other for information will be honored in order
that each of the parties may be fully advised as to the matters under
discussion. The specific format for such discussions will be left to the
discretion of the representatives meeting, but may include the
preparation of agreed upon statements of fact or written statements of
position furnished to the other party. There shall be written minutes of
the meeting taken and distributed to all parties in attendance. If the
dispute cannot be resolved within thirty (30) days after good faith
negotiations under this Alternative Dispute Resolution Procedure, either
party may then submit the dispute for arbitration as provided for below.
It shall be a condition precedent submitting a dispute to arbitration
that the parties shall have complied with this Alternative Dispute
Resolution procedure, and the parties conclude in good faith that
amicable resolution through continued negotiation of the matter in issue
does not appear likely.
7.4 Arbitration. This Section 7.4 applies to any controversy, claim or
dispute which shall arise with regard to the performance or
interpretation of the terms and conditions of this Agreement (hereinafter
referred to as a "Controversy"), which the parties have not resolved
after good faith compliance with the Alternative Dispute Resolution
provisions set forth above. All Controversies shall be submitted to a
board of arbitrators consisting of a representative appointed by
Customer, a representative appointed by Aurum, and a third individual
chosen by the above two representatives who shall be unrelated to either
of the said parties (alternatively, the parties may, by mutual agreement,
elect to submit the matter for arbitration by a single arbitrator). Such
arbitration proceeding shall be held in accordance with the then current
commercial rules of the American Arbitration Association and shall be
held in Orlando, Florida. It is agreed that if any party shall desire
relief of any nature whatsoever from the other party as a result of any
Controversy, it will institute such arbitration proceedings within a
reasonable time, but in no event (a) prior to complying with the
Alternative Dispute Resolution Procedure set forth above, or (b) later
than six (6) months after the termination of this Agreement. The failure
of a party to institute proceedings within such period shall be deemed a
full waiver of any claim for any such relief. The arbitrators shall
render a decision on the matter as soon as practicable, but no later than
forty-five (45) days from the date on which the selection of the
arbitration panel is complete, and they shall refrain from addressing or
commenting on matters other than the Controversy before them. All costs
of said arbitration, including the arbitrators' fees, if any, shall be
borne equally by the parties involved. The parties agree that the
decision and award of the arbitration shall be final and conclusive upon
the parties, in lieu of all other legal, equitable or judicial
proceedings between them, and that no appeal or judicial review of the
arbitrators' award shall be taken, but that any such award may be entered
as a judgment and enforced in any court having jurisdiction over the
party against whom enforcement is sought.
7.5 Subject to the provisions of Section 5.6 of this Agreement, during the
resolution of disputes including formal proceedings the parties hereto
will continue, to the extent possible, to perform each of their
responsibilities and obligations under this Agreement.
ARTICLE VIII - TERMINATION
AND RELATED MATTERS
8.1 Termination Due to Acquisition. If fifty percent or more of the stock or
assets of Customer are acquired by another person or entity, whether by
merger, reorganization, sale, transfer, or other similar transaction,
then Aurum and Customer will negotiate in good faith the terms and
conditions upon which this Agreement may be modified to accommodate such
transaction. If the parties are unable to agree upon such modification,
either parry upon written notice to the other may terminate this
Agreement upon the consummation of such acquisition or on a mutually
agreeable date thereafter.
8.2 Termination for Non-Payment. If Customer defaults in the payment of any
charges or other amounts due under this Agreement and fails to cure such
default within ten days after receiving written notice specifying such
default, then Aurum may, by giving Customer at least thirty days prior
written notice thereof, terminate this Agreement as of a date specified
in such notice.
8.3 Termination for Cause. If either party materially defaults in its
performance under this Agreement, except for nonpayment of amounts due to
Aurum, and fails to either substantially cure such default within ninety
days after receiving written notice specifying the default or, for those
defaults which cannot reasonably be cured within ninety days, promptly
commence curing such default and thereafter proceed with all due
diligence to substantially cure the default, then the party not in
default may, by giving the defaulting party at least thirty days prior
written notice thereof, terminate this Agreement as of a date specified
in such notice.
8.4 Termination for Insolvency. If either party becomes or is declared
insolvent or bankrupt, is the subject of any proceedings relating to its
liquidation or insolvency or for the appointment of a receiver,
conservator, or similar officer, or makes an assignment for the benefit
of all or substantially all of its creditors or enters into any agreement
for the composition, extension, or readjustment of all or substantially
all of its obligations, then the other party may, by giving prior written
notice thereof to the non-terminating party, terminate this Agreement as
of a date specified in such notice.
8.5 Payment Upon Termination. The parties acknowledge that upon termination
of this Agreement for any reason, Aurum will incur damages resulting from
such termination that will be difficult or impossible to ascertain.
Therefore, prior to such termination, except termination by Customer
pursuant to Section 8.3 or 10,5, and in addition to all other amounts
then due and owing to Aurum, Customer will pay to Aurum as reasonable
liquidated damages the sum of the amounts calculated in subsections (a)
and (b) below. In the case of termination by Customer pursuant to Section
8.3 or 10.5, Customer will pay to Aurum the amounts calculated in
subsection (a) below.
(a) All costs reasonably incurred by Aurum in connection with such
termination, including telecommunication line disengagement
expenses and costs of terminating leases on or shipping or storing
any Equipment provided to Customer by or through Aurum under this
Agreement, plus a twenty-five percent management fee on such
costs, plus Aurum's charges for any Additional Services reasonably
requested by Customer for deconversion assistance and Aurum's then
standard charges for the resources utilized to prepare any test or
conversion tapes (together, the "Termination Costs"). Aurum may,
at its option, invoice Customer for the greater of (i) Aurum's
good faith estimate of the Termination Costs, or (ii) the
aggregate of the charges payable to Aurum pursuant to Article V
for the two calendar months preceding the month in which notice of
termination is given. If the actual Termination Costs are greater
or less than the amount of Aurum's invoice that is paid by
Customer under the immediately preceding sentence, then Customer
will pay Aurum, or Aurum will refund to Customer, as the case may
be, the difference between the actual Termination Costs and the
amount paid.
(b) Eighty percent of the total compensation which would have been
paid or reimbursed to Aurum under this Agreement during the
remainder of its term.. The amount of total compensation will be
computed by multiplying the total number of months remaining in
the Initial Term or the Renewal Term then in effect from the
effective date of the termination by the average monthly charge to
Customer for Services under this Agreement during the twelve
calendar months immediately preceding the calendar month in which
notice of termination was given, and multiplying that number by
eighty percent. This is expressed mathematically as follows:
(Number of months remaining in term) x (average monthly charge for
Services during the twelve months preceding notice of termination)
x 0.80
If this Agreement has been in effect less than twelve calendar
months prior to the giving of the notice of term nation, then the
parties will compute the amount due under this subsection (b)
using the average monthly charge for Services made during such
lesser number of calendar months. If termination of this Agreement
occurs prior to the Operational Date, then the parties will
compute the amount due under this subsection (b) assuming that the
Operational Date had occurred when scheduled by Aurum and using
the average monthly charges reasonably estimated to be paid by
Customer.
All amounts payable under this Section 8,5 will be invoiced and paid
prior to the effective date of such termination and prior to the release
of any test tapes or other data of Customer.
8.6 Payment Upon Nonrenewal. If Customer gives or receives notice not to
renew this Agreement pursuant to Section 2.2, or Customer terminates this
Agreement under Section 10.5, Customer will pay to Aurum an amount equal
to all amounts then due and payable to Aurum, plus (a) Aurum's charges
for any Additional Services reasonably requested by Customer for
deconversion assistance, (b) Aurum's then standard charges for the
resources utilized to prepare any test or conversion tapes, and (c) all
other costs reasonably incurred by Aurum in connection with such election
not to renew or termination that are described in Section 8.5(a) and that
relate to obligations that Customer approved, which extend beyond the
then current term of this Agreement or earlier termination date under
Section 10.5. All amounts payable under this Section 8.6 will be invoiced
and paid prior to the expiration date and prior to the release of any
test tapes or other data of Customer.
ARTICLE IX - LIABILITY AND INDEMNITY
9.1 Limitation of Liability. Section 3.2 (d) sets forth Customer's exclusive
remedies for errors in reports or other output provided by Aurum under
this Agreement. If Aurum becomes liable to Customer under this Agreement
for any other reason, whether arising by negligence, willful misconduct
or otherwise, then (a) the damages recoverable against Aurum for all
events, acts, delays, or omissions will not exceed in time aggregate the
compensation payable to Aurum pursuant to Section 5.1 of this Agreement
for the lesser of the months that have elapsed since the Operational Date
or the three months ending with the latest month in which occurred the
events, acts, delays, or omissions for which damages are claimed, and (b)
the measure of damages will not include any amounts for indirect,
consequential, or punitive damages of any party, including third parties,
or damages which could have been avoided had the output provided by Aurum
been verified before use. Customer may not assert any cause of action
against Aurum of which Customer knew or should have known more than two
years prior to such assertion. In connection with the conduct of any
litigation with third parties relating to any liability of Aurum to
Customer or to such third parties, Aurum will have all rights which are
appropriate to its potential responsibilities or liabilities. Aurum will
have the right to participate in all such litigation and to settle or
compromise its liability to third parties.
9.2 Warranty. Aurum will provide the Services in a professional and
workmanlike manner. EXCEPT AS EXCLUSIVELY PROVIDED IN THIS SECTION 9.2,
AURUM DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY
OPERATION 0F LAW OR OTHERWISE CONTAINED IN OR DERIVED FROM THIS
AGREEMENT, ANY OF THE SCHEDULES ATTACHED HERETO, ANY OTHER DOCUMENTS
REFERENCED HEREIN, OR IN ANY OTHER MATERIALS, PRESENTATIONS OR OTHER
DOCUMENTS OR COMMUNICATIONS WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT
LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
9.3 Force Majeure. Each party will be excused from performance under this
Agreement, except for any payment obligations, for any period and to the
extent that it is prevented from performing, in whole or in part, as a
result of delays caused by the other party or any act of God, war, civil
disturbance, court order, labor dispute, third party nonperformance, or
other cause beyond its reasonable control, including failures,
fluctuations or nonavailability of electrical power, heat, light, air
conditioning, or telecommunications equipment. Such nonperformance will
not be a default or a ground for termination as long as reasonable means
are taken to expeditiously remedy the problem causing such
nonperformance.
9.4 Reliance on Instructions. Aurum is entitled to rely upon and act in
accordance with any instructions, guidelines or information provided to
Aurum by Customer, which are given by persons having actual or apparent
authority to provide such instructions, guidelines, or information, and
will incur no liability in doing so. Customer will indemnify, defend, and
hold harmless Aurum from any and all claims, actions, damages,
liabilities, costs, and expenses, including reasonable attorneys' fees
and expenses, arising out of or resulting from Aurum acting in accordance
with this Agreement.
ARTICLE X - MISCELLANEOUS
10.1 Binding Nature and Assignment. This Agreement will be binding on the
parties and their respective successors and permitted assigns. Neither
party may assign this Agreement unless it obtains the prior written
comment of the other party (except that Aurum will have the right to
perform the Services itself and through various of its subsidiaries and
to subcontract to unaffiliated third parties portions of the Services, so
long as Aurum remains responsible for the obligations performed by any of
its subsidiaries and subcontractors to the same extent as if such
obligations were performed by Aurum employees), which consent will not be
unreasonably withheld. The following transactions relating to either
party will not require approval of the other party under this Section:
any merger (including a reincorporation merger), consolidation,
reorganization, stock exchange, sale of stock or substantially all of the
assets, or other similar or related transaction in which such party is
the surviving entity or, if such party is not the surviving entity, time
surviving entity continues to conduct the business conducted by such
party prior to consummation of the transaction.
10.2 Hiring of Employees. During the term of this Agreement and for a period
of twelve months thereafter, neither party will, without the prior
written consent of the other, offer employment to or employ any person
employed then or within the preceding twelve months by the other party,
if the person was involved in providing or receiving Services.
10.3 Notices. Any notice under this Agreement will be deemed to be given when
(i) delivered by hand or overnight delivery service, or three (3)
business days after having been mailed by registered United States mail,
return receipt requested, and (ii) addressed to the recipient party at
its address set forth in the first paragraph of this Agreement and to the
attention of its President, in the case of Customer, or to the attention
of President, in the case of Aurum. Either party may from time to time
change its address for notification purposes, by giving the other prior
written notice of the new address and the date upon which it will become
effective.
10.4 Relationship of Parties. Aurum, in providing Services, is acting as an
independent contractor and does not undertake by this Agreement or
otherwise to perform any regulatory or contractual obligation of
Customer. Aurum has the sole right and obligation to supervise, manage,
contract, direct, procure, perform or cause to be performed all work to
be performed by Aurum under this Agreement.
10.5 Modification. Aurum may from time to time modify any of the provisions of
this Agreement to be effective at any time on or after the expiration of
the Initial Term by giving Customer at least six months prior written
notice describing the modification and the date upon which it will be
effective (the "Modification Date"). If Aurum gives Customer notice of a
modification pursuant to this Section, Customer may, by giving Aurum
written notice at least three months prior to the Modification Date,
terminate this Agreement as of such Modification Date or at a specified
later date. Unless Customer provides such notice, the modification will
be effective for any period after the Modification Date.
10.6 Waiver. A waiver by either of the parties of any of the covenants,
conditions, or agreements to be performed by the other or any breach
thereof will not be construed to be a waiver of any succeeding breach or
of any other covenant, condition, or agreement contained in this
Agreement.
10.7 Media Releases. All media releases, public announcements, and public
disclosures by Customer or Customer's employees or agents relating to
this Agreement or the subject matter of this Agreement, including
promotional or marketing material, but excluding any announcement
intended solely for internal distribution by Customer or any disclosure
required by legal, accounting, or regulatory requirements beyond the
reasonable control of Customer, will be coordinated with and approved by
Aurum prior to release.
10.8 Entire Agreement. This Agreement and all attached Schedules constitute
the entire agreement between Aurum and Customer with respect to the
subject matter of this Agreement. There are no understandings or
agreements relative to this Agreement which are not fully expressed
herein and no change, waiver, or discharge of this Agreement will be
valid unless in writing and executed by the party against whom such
change, waiver, or discharge is sought lo be enforced. This Agreement may
he amended only by an amendment in writing, signed by the parties.
10.9 Time Zones. Unless otherwise provided herein, all processing times are
deemed to be the time zone within which Customer's principal office is
located.
10.10 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas.
10.11 Execution of Agreement. Three original copies of this Agreement will be
executed and submitted to Aurum by Customer. This Agreement will become
effective when Aurum executes this Agreement. Aurum will return one of
the executed copies to Customer. By executing this Agreement, Customer
represents and warrants that (a) this Agreement has been duly authorized;
(b) such execution does not, and will not, cause a breach by Customer of
any other contract, agreement, or understanding to which Customer is a
party; and (c) this Agreement constitutes a valid, fully enforceable, and
legally binding obligation of Customer. Customer will maintain this
Agreement as an official record of Customer continuously from the time of
its execution.
IN WITNESS WHEREOF, Customer and Aurum have caused this Agreement to be
signed and delivered by their respective duly authorized representatives.
Customer: Accepted by:
XXXX COMMUNITY BANK, sb AURUM TECHNOLOGY INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxx
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Authorized Signature Authorized Signature
Xxxx X. Xxxxx President Xxxxxx X. Xxxx SVP
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Type or Print Name and Title Type and Print Name and Title
12-5-01 12-5-01
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Date Date
