EXHIBIT 10.13
DATA PROCESSING SERVICES AGREEMENT
THIS DATA PROCESSING SERVICES AGREEMENT is made as of this 22nd day of
March 1996 (the "Agreement") by and between M&I Data Services, a division of the
Xxxxxxxx & Xxxxxx Corporation, a Wisconsin corporation ("M&l") and The Columbia
Bank, a Maryland corporation, together with any subsidiaries and affiliates for
which M&I performs data processing services (collectively referred to as the
"Customer").
RECITALS
WHEREAS, M&I provides data processing services to customers located
across the country; and
WHEREAS, M&I desires to provide data processing services to Customer,
and Customer desires to have M&I provide it with such services.
NOW, THEREFORE, in consideration of the recitals and for the good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Services. M&I shall provide Customer with the data processing
services requested by Customer utilizing the version of the banking system
software made available from time to time by M&I through the M&I Service Bureau
(the "Services"). The functionality of the software and a further description of
the Services is set forth in the User Manuals, copies of which have been
provided to Customer. Customer shall purchase the data processing services
indicated on Exhibit A, from M&I. Unless otherwise agreed in writing between M&I
and Customer, and subject to the other provisions of the Agreement, M&I shall
make the On-line Services available to Customer, subject to commercially
reasonable downtime and maintenance, at times indicated on the M&I On-line
Availability Schedule, as modified from time to time.
2. Fees and Taxes. Customer agrees to pay for the Services
received hereunder as follows:
a. Amount of Fees. Commencing on the Conversion Date (as
defined in Section 3) and on the first day of each month thereafter through the
end of the term of this Agreement, Customer shall pay M&I a fixed monthly fee of
fifteen thousand two hundred ($15,200) per month (the "Fixed Monthly Fee") for
the Services described on Exhibit A. For Services requested by Customer in
addition to those on Exhibit A, Customer shall pay in accordance with M&I's
then-current standard published prices. The Fixed Monthly Fee will be adjusted
in accordance with the provisions of Exhibit B. Customer also agrees to pay all
communication costs, telecommunication charges, printline charges and other
output costs and other reasonable and necessary costs, including but not limited
to start-up fees, passthrough charges, out-of-pocket expenses, conversion
expenses and fees, workshop fees, training fees, as well as late fees or charges
billed as miscellaneous on Customer's invoice (the "Miscellaneous Fees"). The
M&I standard published prices as of the date of this Agreement are set forth on
the fee schedule attached as Exhibit C.
b. Additional Charges. In addition to the charges described
above or set forth in Exhibits B and C, Customer agrees to pay for any
manufacturers, sales, use, excise, personal property, or any other tax or
charge, or duty or assessment levied or assessed by any governmental authority
upon or as a result of the execution or performance of any service pursuant to
this Agreement or materials furnished with respect to the Agreement, except
those taxes based on M&l's net income.
c. Terms of Payment. Customer shall pay the Fixed Monthly Fee
on the first day of the month in which the Services are to be performed. Any
other amounts due hereunder shall be paid within thirty (30) days of invoice,
unless otherwise provided herein. To effect the payment for the Fixed Monthly
Fee only, Customer hereby
authorizes M&I to initiate debit entries from and, if necessary, initiate
credit entries and adjustments to Customer's account at the depository
designated in the ACH Authorization Agreement. Debit entries for the Fixed
Monthly Fee will be made on the first day of each month for which Services will
be rendered under the Agreement. In the event that a payment day is a
nonbusiness day, entries will be made on the first preceding business day.
Customer shall authorize, on the attached ACH Authorization Agreement, debits
from and credits to its account for payment for Services received under the
Agreement. The Customer shall also pay any collection fees and reasonable
attorneys' fees incurred by M&I in collecting payment of the charges and any
other amounts for which Customer is liable under the terms and conditions of
this Agreement.
d. Modification of Terms and Pricing. If Customer is in
default as defined in Section 11 and M&I elects to continue to perform the
Services, Customer agrees to pay M&I all unamortized conversion expenses in
advance of M&I performing any additional Services (using a sixty (60) month
straight-line amortization schedule). As of the date of the Agreement, estimated
unamortized conversion expenses are detailed on Exhibit B. In addition, Customer
agrees that all charges for Services shall be computed using M&I's then-current
standard published prices, paid in advance as determined by M&I. M&I may
terminate the provision of the Services to Customer in the event of Customer's
uncured default after providing Customer at least one hundred twenty (120) days'
prior notice.
3. Term.
a. Initial Term. This Agreement shall be effective upon
execution by both parties, and both parties will promptly undertake the
conversion activities necessary to process Customer's data. M&I currently
anticipates, subject to Customer's timely and satisfactory completion of its
responsibilities described in the M&I Conversion Manual and in the Conversion
Schedule to be established by M&I, and agreed to by Customer, that all
conversion activities will be completed on September 16,1996 (the "Conversion
Date"). The term of this Agreement shall continue for a period of ninety-six
(96) months from the Conversion Date.
b. Renewal Obligations. During any renewal term, or for any
Services provided after the end of the initial term, whether or not the
Agreement is renewed, Customer agrees that the terms of this Agreement shall
continue to apply, except that all charges for Services shall be computed using
M&I's then-current standard published prices paid in advance as determined by
M&I. At M&I's option, such Services shall be provided by M&I on a month-to-month
basis.
4. Affiliates. All processing for Customer and Customer's
subsidiaries and affiliates which M&I does shall be included as part of the
Services provided under this Agreement and shall be done in accordance with
the terms and conditions of this Agreement. Customer agrees that it is
responsible for assuring compliance with the Agreement by its affiliates and
subsidiaries. Customer agrees to be responsible for the submission of its
affiliates' data to M&I for processing and for the transmission to Customer's
affiliates of such data processed by and received from M&I. Customer agrees to
pay any and all fees owed under this Agreement for Services hereunder.
5. Confidentiality and Ownership. Except as permitted under
Section 25(k) herein, both parties will, to the extent and in accordance with
their policies used to protect their own information of similar importance, use
their best efforts to refrain from and prevent the use of or disclosure of
any confidential information (including, but not limited to, financial
information, product lists and descriptions, pricing schedules, customer lists
and methods of doing business) of the other party, disclosed or obtained by
such party while performing its obligations under this Agreement, except when
such use or disclosure is for the purpose of providing the Services. Neither
party will have an obligation of confidentiality with regard to any information
insofar as the same: (1) was known to such party prior to disclosure; (2)
is or becomes publicly available other than as a result of a breach of this
Agreement; or (3) is disclosed to such party by a third party not subject to
an obligation of confidentiality. Nor shall the obligation of confidentiality
occur where disclosure is made pursuant to: (1) any law of the United States
or any state thereof; (2) the order of any court or governmental agency; or (3)
the rules and regulations of any governmental agency.
Customer may reproduce and distribute any or all M&I's
documentation, including User Manuals, solely for its own internal use. Customer
recognizes, however, that such documentation may be copyrighted, trademarked,
patented, or otherwise protected by M&I. Customer will not undertake to
reproduce for distribution or distribute such documentation to any other third
party. Any modifications made to such documentation by Customer for the purpose
of customization are acknowledged to be solely at the risk of Customer, and M&I
shall not be liable to Customer for any inaccuracies arising therefrom. The
distribution of modified documentation is subject to the same
restrictions and shall further contain an acknowledgment of M&I's copyright
and other protected proprietary interests in such documentation.
The obligation of the parties under this Section 5 shall
survive the termination of the Agreement.
6. Programming. M&I reserves the right to determine the
programming (whether hardware or software) utilized with the equipment used
in fulfilling its duties under this Agreement. All programs (including
ideas and know-how and concepts) developed by M&I are and remain its sole
property.
7. Equipment. Customer shall obtain and maintain at its own
expense such data processing and communications equipment as may be necessary or
appropriate to facilitate the proper use and receipt of the Services. M&I and
Customer will mutually determine the equipment and network configuration
required for Customer to utilize the Services. Customer shall pay all
installation, monthly, and other charges relating to the installation and use of
communications lines in connection with the Services. M&I shall not be
responsible for the continued availability of the communications lines used by
Customer in accessing the Services. M&I maintains a network control center with
diagnostic capability to monitor communication line reliability. M&I agrees to
communicate any service deficiencies to vendors of which M&I is, or becomes,
aware. A copy of the proposed network configuration is attached hereto as
Exhibit D.
8. Supplies. Customer shall pay for all supplies used in
connection with the Services. All forms, supplies, or materials used in
processing Customer's items and input data shall meet M&I's specifications
as set forth in the User Manuals and any updates thereto.
9. Systems Modification: Amendment of Services. M&I may modify,
amend, enhance, update, or provide the appropriate replacement for any of the
Services, the software used to provide the Services, or any element of its
systems at any time to: (a) improve the Services or (b) facilitate the continued
economic provisions of the Service. M&I may, at any time, withdraw any of the
Services upon providing one hundred twenty (120) days' prior written notice to
Customer; provided, however, there shall be no material reduction in the
functionality of the core elements of M&I's Integrated Banking System Software
(Deposit System, Loan System, Customer Information System). M&I may also
terminate any of the Services immediately upon any regulatory, legislative, or
judicial determination that providing such Services is inconsistent with
applicable law or regulation or upon imposition by any such authority of
restrictions or conditions which would materially alter the economic or other
benefits to M&I or Customer to any element of the Services.
10. Disaster Recovery. M&I maintains, and shall continue to
maintain throughout the term of this Agreement, off-site disaster recovery
capabilities which permit M&I to recover from a disaster and continue providing
Services to Customers within a commercially reasonable period. An executive
summary of the current disaster recovery plan, which may change from time to
time, is available upon request from M&I at no charge. M&I shall test
the operation and effectiveness of its disaster recovery plan at least
annually. M&I maintains, and shall continue to maintain throughout the term of
this Agreement, a backup power supply system to guard against electrical
outages.
11. Events of Default. It shall be an Event of Default on the
part of the Customer if: (a) Customer is insolvent, or a receiver or conservator
shall be appointed with respect to the Customer; or (b) Customer shall fail to
pay any sum due M&I within the prescribed time; or (c) if the Customer shall
fail to perform any of its other covenants or obligations under this
Agreement where the failure of Customer to perform has a material adverse impact
on M&I. It shall be an Event of Default on the part of M&I if: (a) M&I is
insolvent, or a receiver or conservator shall be appointed with respect to
M&I; or (b) M&I shall fail to perform any of its obligations under this
Agreement where the failure of M&I to perform has a material adverse impact on
Customer and is material to the provision of the Services. The defaulting party
shall have ten (10) days from the date of receipt of notice from the
nondefaulting party of nonpayment or nonperformance to cure such an Event of
Default, before the nondefaulting party may exercise any remedies it may have
as a result of the Event of Default.
12. Remedies Upon Default Limitation of Liabilities. If an
Event of Default occurs on the part of the Customer, and is not cured within
the ten (10) day period prescribed in Section 11, M&I may (a) terminate
this Agreement; (b) terminate access to its central processing unit by
the Customer; and (c) declare all amounts payable under this Agreement to
be immediately due payable and file suit for or otherwise obtain payment from
the Customer of any fees or other sums due it pursuant to this Agreement, plus
any actual damages to its equipment or systems
caused by the Customer's actions, failures to act, equipment, systems, or
communication facilities. If an Event of Default occurs on the part of M&I, and
is not cured within the ten (10) day period prescribed in Section 11, the
Customer may only: (a) terminate this Agreement and (b) file suit or
otherwise obtain payment of an aggregate amount of fees paid by the Customer to
M&I hereunder during the four (4) months immediately preceding the Event
of Default. Either party may also seek equitable remedies, including,
without limitation, specific performance and injunctive relief, for a breach
of Section 5 of this Agreement. M&I and the Customer agree that these damage
provisions are reasonable in light of all present predictable circumstances
(including expectable actual damages in that the fees to be charged by M&I
hereunder do not include amounts sufficient to insure against greater
claims). M&I and Customer expressly waive all claims for additional,
incidental, consequential, compensatory, or punitive damages and agree that
the remedies set forth in this Agreement shall be the sole and exclusive
remedies of the parties. No lawsuit or other action may be brought by either
party hereto or on any claim or controversy based upon or arising in any way
out of this Agreement after one (1) year from the date of the occurrence
allegedly giving rise to the action, except for nonpayment of sums due to M&I
by Customer. M&I agrees that except in the case of an Event of Default
relating to a breach by the Customer of its confidentiality
obligations under Section 5 of this Agreement, M&I will not exercise its
remedy to terminate Customer's access to the M&I central processing unit so
long as: (a) Customer is current in the payment of all amounts due M&I as
reflected on M&I's last invoice to Customer; and (b) only exercise such remedy
after providing Customer with one hundred twenty (120) days' prior written
notice.
13. Termination.
a. End of Initial Term. This Agreement shall automatically be
extended at the end of the initial ninety-six (96) month term for an additional
eighteen (18) month renewal term, unless the Customer gives M&I at least one
hundred eighty (180) days' prior written notice of its intent to terminate,
which notice may be given during the initial term of the Agreement.
b. Renewal Term. During the renewal term, this Agreement shall
be automatically extended for an additional one (1) month on each monthly
anniversary date so that the term shall always be not less than one (1) month
less than eighteen (18) months, unless either party gives written notice to the
other party of intent to terminate, in which event the automatic monthly
renewals will end and the Agreement will terminate at the end of the unexpired
portion of the term in existence on the date notice to terminate is given.
c. Termination Upon Default. This Agreement may
also terminate upon an Event of Default and failure to cure beyond applicable
cure periods at the option of the nondefaulting party as set forth in Section
12 hereof.
d. Termination by Customer. Customer may terminate this
Agreement at any time, and without cause, by giving M&I at least one hundred
eighty (180) days' prior written notice and paying M&I the then-applicable
buyout amount set forth in Section 21.
e. Termination for Change in Control of M&I. In the
event M&I is acquired by any entity not now in control of M&I (by definition
any entity not now in control of M&I who subsequently acquires more than
fifty percent (50%) of the voting power or outstanding capital of M&I) such
acquiring entity may not convert Customer to another processing platform
without Customer's consent. Such conversion without Customer's consent shall
entitle Customer to terminate this Agreement with six (6) months prior notice
and without payment of any buyout amount or deconversion cost. A public offering
of M&I stock shall not be construed as a change in control of M&I.
14. Regulatory Assurances. M&I and Customer acknowledge and agree
that the performance of these Services will be subject to regulation and
examination by Customer's regulatory agencies to the same extent as if such
Services were being performed by Customer. Upon request, M&I agrees to provide
any appropriate assurances to such agency and agrees to subject itself
to any required examination or regulation. Customer agrees to reimburse M&I for
reasonable costs actually incurred due to any such examination or regulation
that is performed solely for the purpose of examining data processing services
used by Customer.
a. Notice Requirements. The Customer shall be
responsible for complying with all regulatory notice provisions to any
applicable governmental agency, which shall include providing timely and
adequate notice to the Chief Examiner of the Federal Home Loan Bank Board, the
Office of Thrift Supervision. the Office of the Comptroller of the Currency,
The Federal Deposit Insurance Corporation, the Federal Reserve Board, or
their
successors, as applicable (collectively, the "Federal Agency"), as of the
effective date of Services under this Agreement, as required, identifying
those records to which this Agreement shall apply and the location at which such
Services are to be performed.
b. Examination of Records. The parties agree that the
records maintained and produced under this Agreement shall, at all times, be
available for examination and audit by governmental agencies having
jurisdiction over the Customer's business, including (without limitation)
the Federal Agency. The Director of Examinations of the Federal Agency or his
designated representative shall have the right to ask for and to receive
directly from M&I any reports, summaries, or information contained in or
derived from data in the possession of M&I related to the Customer. M&I shall
notify Customer as soon as possible of any formal request by an authorized
governmental agency to examine Customer's records maintained by M&I, if M&I
is permitted to make such a disclosure to Customer under applicable law or
regulations. Customer agrees that M&I is authorized to provide all such
described records when formally required to do so by this authorized
governmental agency.
c. Fidelity Bonds. Throughout the term of the
Agreement, M&I shall maintain fidelity bond coverage of not less than one
million dollars ($1,000,000) for M&I and its employees, if required.
d. Notice of Changes. Customer shall give to the
Director of Examinations of the Federal Agency at least thirty (30) days'
notice of the termination of this Agreement or of any material changes in
the Services to be provided hereunder, if required.
e. Insurance. Throughout the term of this Agreement, M&I
shall maintain insurance coverage (or shall be self-insured) for losses from
fire, disaster, and other causes contributing to interruption of the
Services. M&I shall maintain in force at all times during the term of this
Agreement such insurance as will protect it from claims under Worker's
Compensation acts for damages due to bodily injury or death and liability
insurance sufficient to protect it from claims for liability to others for
damages due to bodily injury, death or damage to property or others. Such
insurance shall be written for not less than the following limits:
(1) Worker's Compensation--statutory limits.
(2) Liability Insurance:
(a) Bodily Injury--not less than
$5,000,000 for each occurrence.
(b) Property Damage Liability not less
than $250,000 for any occurrence.
(c) Financial Institution Bond coverage
for not less than $5,000,000 for
each occurrence.
(3) Motor Vehicle Insurance--shall be provided
for not less than $5,000,000 for any
occurrence involving bodily injury and/or
property damage.
(4) In addition, M&I will maintain Umbrella
Coverage of $5,000,000 for any occurrence.
The proceeds of all such insurance shall be payable to M&I. Nothing in
this Agreement shall be construed to permit Customer to receive any of such
proceeds, or to be named as an additional loss payee under any insurance polity.
f. Financial Information. Customer agrees to
provide M&I with a copy of the call report filed with the Federal Agency
simultaneously with its filing with the Federal Agency, and to provide such
additional financial information as to its creditors or others as M&I may
reasonably request.
15. Transportation and/or Transmission of Data. The responsibility
and expense for transportation and/or transmission of and risk of loss of data
and media to and from M&I's datacenters shall be borne by Customer. M&I will
notify Customer of the time by which Customer's data and media must be delivered
to M&I for processing for M&I to provide Customer's processed data within
the time period indicated by M&I.
16. Responsibility.
a. General. M&I agrees to perform the Services
in a commercially reasonable manner, which is similar to the services
provided to other M&I customers, and no other or higher degree of care. Except
as otherwise described herein, M&I assumes no other obligation as to
performance or quality of the Services provided, all other risks of error
being expressly assumed by Customer. M&I shall not be responsible for loss
or damage due to delays in processing or in the delivery of processed data as
a result of any of the causes excused by Section 19 hereof. M&I WILL IN NO
EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
INCURRED BY CUSTOMER INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR BUSINESS
OPERATION LOSS, REGARDLESS OF WHETHER M&I WAS ADVISED OF THE POSSIBLE
OCCURRENCE OF SUCH DAMAGES.
b. Reliance on Data Supplied. M&I will process items
and data and perform those Services described in this Agreement on the
basis of information furnished by Customer. M&I shall be entitled to rely
upon any such data, information, or instructions as provided by Customer. If any
error results from incorrect input supplied by Customer, Customer shall be
responsible for discovering and reporting such error and supplying the data
necessary to correct such error to M&I for processing at the earliest possible
time. Customer will indemnify and hold M&I harmless from any cost, claim,
damage, or liability (including attorneys' fees) whatsoever arising out of such
data, information or instructions, or any inaccuracy or inadequacy therein.
Customer assumes all risk of loss, delay, and miscommunication in the
transportation or transmission by electronic means of data and information from
any terminal or remote unit unless the same is caused by or attributable to
any act or omission on M&I's part, which act or omission does not meet the
standard of care in Section 16(a), or was caused by or attributable to any
gross negligence or willful failure on M&I's part to comply with its
obligations under this Agreement.
c. Data Backup. Customer shall maintain adequate
records including microfilm images of items being transported to M&I for at
least ten (10) business days' backup on magnetic tape or other electronic
media where transactions are being transmitted to M&I, from which
reconstruction of lost or damaged items or data can be made. Customer assumes
all responsibility and liability for any loss or damage resulting from
failure to maintain such records.
d. Audit. M&l shall cause a third-party review of its
data processing systems and Services to be conducted annually by its
independent auditors. M&I shall provide Customer one copy of the report
resulting from such review.
e. Regulatory Compliance. Customer is responsible
for determining that the Services performed in its behalf, any forms which are
used with its customers, and all records it retains comply with all applicable
laws. When used properly by the Customer, M&I software used to provide the
Services will provide the Customer with information required by and in
compliance with Federal law and regulations applicable to the transactions or
accounts processed by M&I, and, to the best of M&I's knowledge,
applicable state laws and regulations. Should Customer determine that other
information from the Services M&I provides is needed in order to comply with
applicable federal or state laws and regulations, Customer's sole remedy, and
M&I's sole obligation shall be for M&I to provide the ability to process
the information requested from the Customer as promptly as is
commercially practicable. M&I agrees that with respect to changes required
as a result of changes in state and Federal law, such changes shall be
undertaken as a priority project based on the regulatory deadline imposed for
compliance.
f. Balancing and Controls. On a daily basis, Customer
shall review all input and output, controls, reports, and documentation, to
ensure the integrity of data processed by M&I. In addition, Customer shall,
on a daily basis, check exception reports to verify that all file maintenance
entries and nondollar transactions were correctly entered. Customer is
responsible for initiating timely remedial action to correct any improperly
processed data which these reviews would disclose.
g. Service Deficiencies. If Customer is aware that a
defect exists in a Service, Customer shall be responsible for making
whatever appropriate adjustments may thereafter be necessary until M&I
corrects the defect and, if requested by Customer, M&I will, at M&I's
expense, assist Customer in making such corrections through the most
cost-effective means, whether manual, by system reruns, or program
modifications. M&I will, where
reasonable, make every effort to correct any known material defect as soon as
commercially reasonable at M&I's expense.
17. Ownership of Data. Customer is the owner of all of its
data supplied by Customer to M&I for processing hereunder, as well as the
resulting processed data. Customer acknowledges that it has no rights in
any of the software, systems documentation, guidelines, procedures, and
similar related materials or any modifications thereof except with respect to
M&I's use of the same during the term of this Agreement to process data. Upon
termination of this Agreement, M&I shall provide Customer with all copies of
Customer's data in a format that is being used by M&I at that time for
processing such data. Prior to the release of the Customer's data: (a) all
amounts owed under this Agreement by Customer to M&I shall be current and paid
in full, and (b) Customer shall pay M&I its "Estimated Deconversion Expenses"
as described below. Customer agrees to pay M&I for M&I's work in providing such
data at M&I's rates then in effect for computer and personnel time, supplies,
and other items as required, and Customer further agrees to pay M&I for any
and all charges associated with the deconversion of Customer's data based
on M&I's then-current charges for such Services. M&I shall make a good faith
estimate of all of such costs, expenses, and charges which shall be paid
by Customer in advance (the "Estimated Deconversion Expenses"). The
difference, if any, between the actual expenses and the prepaid Estimated
Deconversion Expenses shall be promptly paid after determination.
18. Warranties. M&I represents and warrants that:
a. Capability of Computer Systems and Software. M&I's
computer systems (hardware and software) are capable of performing the
Services in accordance with the provisions of this Agreement. The software
used to provide the Services will operate substantially in accordance with the
specifications and documentation for the software as modified from time to time
to incorporate enhancements or modifications of the software to provide the
Services.
b. Quality of Service. The reports and Services
made available to Customer shall be in substantial conformity with the
User Manuals, as amended from time to time, copies of which have been, or
will be, provided to Customer.
c. Property Rights. M&I has the right to provide the
Services hereunder, using all computer software required for that purpose.
d. Organization and Approvals. M&I is a validly
organized corporate entity with valid authority to enter into this
Agreement. This Agreement has been duly authorized by all necessary corporate
action.
e. Disclaimer of Warranties. EXCEPT AS DESCRIBED IN
THIS AGREEMENT, M&I DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL,
EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALlTY OF THE
FOREGOING, ANY WARRANTY OF MERCHANTABILlTY OR FITNESS FOR A PARTICULAR PURPOSE.
19. Force Majeure. M&I shall not be liable to Customer if
M&I's fulfillment or performance of any terms or provisions of this
Agreement is delayed or prevented by revolution or other civil disorders,
wars, acts of enemies, strikes, electrical equipment or availability failure,
labor disputes, fires, floods, acts of God, federal, state, or municipal
action, statute, ordinance or regulation, or, without limiting the foregoing,
any other causes not within its reasonable control, and which by the
exercise of reasonable diligence it is unable to prevent, whether of the
class of causes hereinbefore enumerated or not.
20. IRS Filing. Customer has complied with all laws,
regulations, procedures, and requirements in attempting to secure correct tax
identification numbers (TINs) for Customer's payees and agrees to attest to
this compliance by an affidavit provided annually. Customer authorizes M&I
to act as Customer's agent and sign on Customer's behalf the Affidavit
required by the Internal Revenue Service on Form 4804, or any successor form.
Customer acknowledges that M&I's execution of the Form 4804
Affidavit on Customer's behalf does not relieve Customer of responsibility to
provide accurate TINs or liability for any penalties which may be assessed for
failure to comply with TIN requirements. Customer agrees to hold M&I harmless
from any liabilities, claims, expenses,
penalties, or damages (including attorneys' fees) which may be assessed or
incurred as a result of the failure to comply with TIN requirements.
21. Contract Buyout.
a. Customer may terminate this Agreement at any time by
giving M&I at least one hundred eighty (180) days' prior written notice and
paying M&I a percentage of the total estimated remaining unpaid monthly
processing fees according to the schedule which follows this Section. For the
purpose of this computation, total estimated remaining unpaid monthly
processing fees shall be equal to the mean average of the total monthly fees
paid in the three (3) months preceding the termination notice, multiplied by
the number of months remaining in the Agreement.
If Termination Occurs Buyout
During Months Percentage
1 - 36 60%
37 - 72 40%
73 - and thereafter 30%
b. The contract buyout amount set forth above shall
be paid prior to the deconversion of any affected accounts. Except as
specifically set forth in Section 13(e), the contract buyout amount shall be
paid by Customer regardless of the form by which the termination occurs,
including but not limited to, sale of assets or stock, assumption of
liabilities, merger, consolidation, absorption, liquidation, or termination
as a result of an Event of Default on the part of Customer (as described
in Section 11 of this Agreement).
22. Expense Reimbursements. Customer agrees to reimburse M&I
for all conversion-related and out-of-pocket expenses (travel, lodging,
meals, long distance telephone calls, and printing and copying charges)
reasonably incurred in connection with the conversion of Customer's accounts
to the M&I system as further described on Exhibit B. The reimbursement of
such expenses is in addition to conversion charges which may arise after the
conversion, or with respect to accounts which are not currently customer
accounts which are to be converted to the M&I system. M&I shall estimate such
expenses in advance, and Customer shall pay such expenses in three (3) equal
payments as follows: first, upon execution of this Agreement; second, upon
delivery by M&I of conversion test reports; and final, on the Conversion Date.
M&I shall provide Customer with a summary invoice of actual expenses, and any
adjustments shall be paid upon delivery of the invoice.
23. Conversion Obligations. Both parties agree to make a good
faith effort to convert Customer's data in a timely fashion and to
perform the conversion in accordance with the responsibilities set forth
in the M&I Conversion Manual, the Conversion Schedule, and this Agreement.
Customer agrees to maintain an adequate staff of persons who are knowledgeable
with the systems currently used by Customer to process data. Both parties
further agree to provide such Services and perform such obligations as are
contemplated by the M&I Conversion Manual and the Conversion Schedule, and
as necessary for each party to timely and adequately perform their respective
obligations herein and therein. Customer shall pay or reimburse M&I for all
necessary and reasonable out-of-pocket expenses and on a necessary and
reasonable time-and-material basis for any of its personnel, or any independent
contractors, who perform conversion or related services (including items
identified as Customer Responsibilities in the Conversion Manual) for Customer.
Customer further agrees to cooperate fully with all reasonable requests of M&I
necessary to effect the conversion in a timely and efficient manner. Customer
agrees to reimburse M&I for all conversion charges whether for the initial
conversion, or for the subsequent conversion of additional accounts as they
are incurred or for the conversion of products not identified in the Proposal.
24. Use of the Services. (a) Customer assumes exclusive
responsibility for the consequences of any instructions Customer may give M&I,
for Customer's failure to properly access the Services in the manner prescribed
by M&I, and for Customer's failure to supply accurate input information; (b)
Customer agrees that it will use the Services in accordance with such reasonable
policies as may be established by M&I from time to time as set forth in any
materials furnished by M&I to Customer; (c) Customer agrees that, except as
otherwise permitted by M&I, Customer will use the Services only for its own
internal business purposes and will not sell or otherwise provide, directly
or indirectly, any of the Services or any portion thereof to any third party;
and (d) Customer agrees and represents that (1) this Agreement has been
approved by its board of directors, or that the officer executing this
Agreement has been authorized by Customer's board of directors to execute
agreements of this nature (2) the performance of this Agreement
by the Customer will not affect the safety or soundness of the Customer or any
of its affiliates, and (3) this Agreement, and the obligations evidenced
hereby, will be properly reflected on the books and records of the Customer,
and the Customer will provide evidence of the same to M&I upon request.
25. Miscellaneous.
a. Governing Law. This Agreement shall be construed
and governed by the laws of the state of Wisconsin.
b. Amendment. This Agreement, including the
Schedules hereto, may be amended only by an instrument in writing executed by
the parties or their permitted assignees.
c. Assignment. This Agreement may not be assigned by
either party without the prior written consent of the other party, which such
consent shall not be unreasonably withheld, provided that M&I may freely
assign this Agreement to any company that is directly or indirectly (1) in
control of M&I, (2) under the control of M&I, or (3) under common control with
M&I.
d. Section Headings. Section headings are for
reference purposes only and shall not affect the interpretation or meaning of
this Agreement.
e. Notices. All communications or notices required
or permitted by this Agreement shall be in writing and shall be deemed to have
been given at the earlier of the date when actually delivered to an officer of
a party or when deposited in the United States mail, certified or registered
mail, postage prepaid, return receipt requested, and addressed as set forth
on the signature page, unless and until any of such parties notifies the others.
f. No Waiver of Performance. Failure by either party
at any time to require performance by the other party to claim a breach
of any provision of this Agreement will not be construed as a waiver of
any right accruing under this Agreement, nor affect any subsequent breach, nor
affect the effectiveness of this Agreement or any part hereof, nor prejudice
either party as regards any subsequent action.
g. Entire Agreement: Conflicting Provisions. This
Agreement, together with the Schedules hereto, constitutes the entire agreement
between the Customer and M&I with respect to the subject matter hereof.
There are no restrictions, promises, warranties, covenants, or undertakings
other than those expressly set forth herein and therein. This Agreement
supersedes all prior negotiations, agreements, and undertakings between the
parties with respect to such subject matter. In the event of any conflict
between the terms of the main body of this Agreement and any of the Schedules
hereto, the terms of the main body of this Agreement shall govern.
h. Execution in Counterparts. This Agreement may be
executed simultaneously in any number of counterparts, each of which shall
be deemed an original but all of which shall together constitute one and the
same Agreement.
i. Enforceability. The invalidity or enforceability
of any provision hereof shall not affect or impair any other provisions.
j. Scope of Agreement. If the scope of any of the
provisions of the Agreement is too broad in any respect whatsoever to permit
enforcement to its full extent, then such provisions shall be enforced to the
maximum extent permitted by law and the parties hereto consent and agree that
such scope may be judicially modified accordingly and that the whole of such
provisions of this Agreement shall not thereby fail, but that the scope of such
provisions shall be curtailed only to the extent necessary to conform to law.
k. Confidentiality of Terms. Customer agrees that
neither it, its directors, officers, employees, or agents will disclose
this Agreement, or any of the terms or provisions of this Agreement, to
any competitor of M&I, or any publication or any consultant not retained by
Customer.
l. Combined Deposit Statement. Customer will select
one M&I standard combined customer deposit statement format. M&I will
provide an "enlarged font" alternative on this same selected combined
statement, option at the account level.
m. Loan Billing Statements. M&I has agreed to work
with Customer in designing and will provide a customized customer/account
loan billing statement of ordinary size (i.e. 8 1/2 x 11). Customer will print
this notice at their location.
n. Financial Desktop. M&I will provide the customer the
Financial Desktop license software Version I upgrade to the existing
Salespartner license copies at five hundred dollars ($500) per user station, not
to exceed three thousand dollars ($3,000) per site where multiple copies are
installed. In total, the upgrade cost for existing sites initially installed
shall not exceed one third (1/3) of the original Salespartner Agreement of
$95,600. Any training, maintenance, conversion costs, customizations and
third-party software interfaced or integrated with Financial Desktop will be at
additional cost.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in their names as of the date first above written.
M&l DATA SERVICES, A DIVISION OF THE
XXXXXXXX & XXXXXX CORPORATION
("M&I")
0000 X. Xxxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
By: /S/
-------------------------------------
Name: Xxxxxxx X. Xxx
Title: President, Outsourcing Business
Group
By: /S/
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE COLUMBIA BANK ("Customer")
00000 Xxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
By: /S/
-------------------------------------
Name: Xxxx X. Xxxx, Xx.
Title: President and Chief Executive
Officer
AUTHORIZATION AGREEMENT
The undersigned ("Customer") hereby authorizes M&l Data Services, a
division of the Xxxxxxxx & Xxxxxx Corporation ("M&l") to initiate debit entries
and to initiate, if necessary, credit entries and adjustments for any excess
debit entries or debit entries made in error, to Customer's account indicated
below and the depository named below, to debit and/or credit the same such
account.
This authority is to remain in full force and effect for the period coinciding
with the term (and any renewals thereof) of the Data Processing Services
Agreement made the 22nd day of March 1996, and any addenda thereto (the
"Agreement"), pursuant to the terms and conditions specified in the Agreement.
DEPOSITORY NAME: The Columbia Bank
ADDRESS: 00000 Xxxxxx Xxxxxxxx Xxxxxxx
XxXX/XXXXX/XXX: Xxxxxxxx, XX 00000
TELEPHONE NUMBER: (000) 000-0000
ROUTING TRANSIT NUMBER: 000000000
ACCOUNT NUMBER: 00-000000-00
M&I DATA SERVICES, A DIVISION OF THE
XXXXXXXX & ILSLEY CORPORATION
("M&I")
0000 X. Xxxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
By: /S/
------------------------------------------
Name: Xxxxxxx X. Xxx
Title: President, Outsourcing Business
Group
By: /S/
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE COLUMBIA BANK ("Customer")
00000 Xxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
By: /S/
------------------------------------------
Name: Xxxx X. Xxxx, Xx.
Title: President and Chief Executive
Officer
ATTORNEY-IN-FACT APPOINTMENT
Customer hereby appoints M&I Data Services, a division of the Xxxxxxxx
& Ilsley Corporation ("M&I") as: (1) customer's attorney-in-fact and empowers
M&I to authorize the Internal Revenue Service (IRS) to release information
return documents supplied to the IRS by M&I to states which participate in the
"Combined Federal/State Program"; and (2) Customer's agent to sign on Customer's
behalf the Affidavit required by the Internal Revenue Service on Form 4804, or
any successor form. Customer agrees to hold M&I harmless from any liabilities,
claims, expenses, penalties, or damages (including attorneys' fees) which may be
assessed or incurred as a result of the release of information.
THE COLUMBIA BANK ("Customer")
By: /S/ Xxxx X. Xxxxxxxx, Xx.
--------------------------------------
AFFIDAVIT
STATE OF MARYLAND )
----------
) SS.
--
COUNTY OF BALTIMORE )
---------
I, Xxxx X. Xxxxxxxx, Xx., being first duly sworn, on oath, depose and say:
----------------------
1. I am an employee of The Columbia Bank. I have personal knowledge of
my employer's practices with regard to procuring and reporting tax
identification numbers (TINS) and authority to execute this Affidavit on my
employer's behalf.
2. The Columbia Bank has complied with all laws, regulations,
procedures, and requirements in attempting to secure correct TlNS for its
payees. This compliance has been pursued with due diligence, and any failure to
secure correct TlNs is due to reasonable cause.
/S/ Xxxx X. Xxxxxxxx, Xx.
-----------------------------
Customer's Representative
Subscribed and sworn to before me
this 22nd day of March, 1996
/S/
---------------------------------
Notary Public
My Commission expires: 3/1/98
SCHEDULE
M&I ON-LINE AVAILABILITY
The following is a list of standard hours of availability by each on-line
service. All times are EST/EDT.
Cardholder
(CRT Maintenance)
Monday - Thursday 7:00 a.m. - 8:00 p.m.
Friday 7:00 a.m. - 9:30 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
CIS & Deposit System
(Maintenance and Dollar Transactions)
Monday - Thursday 7:00 a.m. - 8:00 p.m. *
Friday 7:00 a.m. - 9:30 p.m. *
Saturday 7:00 a.m. - 4:30 p.m.
Data Entry
(Account Reconciliation System)
Monday - Friday 7:00 a.m.-11:00 p.m.
Data Entry
(Financial Control)
Monday - Thursday 7:00 a.m. -12:00 Midnight
Friday 7:00 a.m. -12:00 Midnight
Saturday 7:00 a.m. - 4:30 p.m.
Decision Management System
Monday-Thursday 7:00 a.m. - 8:00 p.m.
Friday 7:00 a.m. - 9:30 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
Data Entry
Monday-Friday 7:00 a.m. - 5:00 p.m.
Financial Control On-line
Monday-Friday 7:00 a.m. -10:00 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
Loan System
(CRT Maintenance)
Monday-Thursday 7:00 a.m. - 8:15 p.m.
Friday 7 00 a.m. - 9:30 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
Management Information Service
Monday-Thursday 7:00 a.m. - 8:45 p.m.
Friday 7:00 a.m. - 9:30 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
(Except Money Market Info.)
Teller Terminals
Monday-Thursday 7:00 a.m. - 9:00 p.m.
Friday 7:00 a.m. - 9:30 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
*CIS access to loan data is based on Loan System hours of availability.
Note: Customer may request extension of the above hours in the event of
unusual circumstances. M&I will make reasonable efforts to accommodate such
requests.
EXHIBIT A
The Columbia Bank
Summary of Services
(Included in the Fixed Monthly Fee)
M&I Deposit System (29.700 accounts) Customized Reporting
------------------------------------ --------------------
- All Standard Services - Operational Data Warehouse
o Demand Accounts - ALM & Call Report Download
o Money Market Accounts - InFormatter
o Overdraft Checking Accounts
o NOW Accounts Employee Security Processing
o Savings (Passbook, Statement) ----------------------------
o XXX Accounts
o Certificates of Deposit Custom Deposit Statement Formatter
- Exception Processing ----------------------------------
- Retirement Account Processing - Choice of 1 of 4 Statement Formats
- Transaction Retention (to include enlarged font described
- On-line Dollar in 25(l).
- Kiting Suspect System
- User-defined Notices Custom Loan Billing Statement
- Relationship Service Charging -----------------------------
- As described in 25 (m)
Integrated Funds Management
--------------------------- Teller Services
- Deposit to M&I Applications ---------------
- On-line PCTeller
Loan System (2500 Loans) - Auto Signature Interface
------------------------ - Teller Link
- All Standard Services - Large Currency Transaction Reporting
o Installment Loans
o Commercial Loans Financial Control System (2.500)
o Mortgage Loans --------------------------------
o Investor Processing - Core Services - General Ledger
o Escrow Processing - On-line Account/Report Inquiry
o Escrow Tapes - On-line Transaction History
o Home Equity Loans - Generalized Interface
o Participations
o Dealer Loans IRS Government Reporting
o Revolving Credit ------------------------
o Student Loans
- Credit Bureau Tapes (2 tapes) Safe Deposit (700)
- Fee Processing ------------------
- Coupons
- Charge-off Processing Customer Information System (38,300)
- Non-accrual Processing ------------------------------------
- Note Pad - Combined Statements
- Collateral Processing
On-line Collections
Voice Response -------------------
-------------- - Letter Writer
Interface to Existing InterVoice
Tickler System
--------------
ACH Receiving
-------------
Accounts Payable IPS Upload to GL
---------------------------------
Star On-line Report Viewing
---------------------------
- Optical Archival Storage
(7 years-7 days)
EXHIBIT A-1
THE COLUMBIA BANK
Items not included in the Fixed Monthly Fee, but Customer is required to obtain
them through M&I.
- EFT/ATM Processing
- ACH Origination
- Electronic Data Interface (EDI)
- Cash Management - Treasury Connection
- Microfiche
- Information Desktop - MDW Data Only
- Audit Services
- VISA Debit Card
- Expanded Account Analysis
EXHIBIT B
I. The Fixed Monthly Fee may be adjusted as follows:
A. Commencing March 1, 1997, and on each successive March 1 throughout
the term of the Agreement, the Fixed Monthly Fee shall be increased by the
lesser of (a) the increase over the prior year in the Consumer Price Index (CPI,
all items-U) as published by the United States Department of Labor, or any
successor index; or (b) five percent (5%).
B. Commencing March 1, 1997, for each ten percent (10%) increase in
Account Volume, the Fixed Monthly Fee shall be increased eight percent (8%) as
illustrated by the Schedule which follows this Section. "Account Volume" is
defined as the total aggregate of open Deposit Accounts, Loan Notes, General
Ledger Accounts and CIS Customers (as described in separate documentation).
Starting Account Volume is acknowledged to be 73,000.
Account Volume Fixed Monthly Fee *
---------------- -------------------
0 - 80,000 $15,200
80,001 - 88,000 $16,416
88,801 - 96,800 $17,729
96,801 - 106,480 $19,148
* Subject to the increase in "A" above.
II. Customer will pay M&I the following estimated one-time
conversion-related expenses:
1. Conversion Programming Fees Value $94,338 (Amortized)
2. Conversion Product Support Fees Value $184,679 (Amortized)
a. Enlarged Font on Combined Statement 250 hours @ $105/hr (Amortized)
b. Custom Statement on Loan Account Billing 750 hours @ $105/hr (Amortized)
3. Estimated Conversion Travel $62,111
4. ClS/Match Merge/ISI @ .26/acct. and tape-to-tape (Amortized)
5. EFT/ATM Startup Fee Value $10,700 (Amortized)
6. Other Conversion Startup Fees: (Fixed, not estimated)
o On-line Exception $200
o Large Currency Transaction $550
o EDI-Bank $1,250
o EDI-Three Customer @ $75 $225
o Four Treasury Connection @ $150 $600
o Treasury Connection-Bank $500
o IPS A/P Upload $1,200
o STAR View $500
o IRS Taxpayer Information Service $525
o ACH Receiving Setup $315
Total $5,865
7. Salespartner/PCTeller License Fees (Fixed)(Retail Value $153,535) $95,600
8. Salespartner Customization (estimated 550 hours @ $105 per hour) $57,750
EXHIBIT B (Cont'd)
9. Estimated LAN/WAN Technical--M&I and Customer will
examine and discuss each task to jointly determine which
tasks Customer should perform. $69,500
10. Estimated Communication Installation $28,854
11. Estimated Communication Equipment $88,007
12. IPS Software: A/P, Fixed Assets (Fixed) (price quoted by IPS) $4,000
13. Auto-SIG Interface to PCTeller (Fixed) $4,000
14. Micro-soft Access Reports (estimated 40 hours ~ $105 per hour)(Fixed) $4,200
15. Census Traks Plus (price quote by Bankers System) (Fixed) $2,295
16. Motavator (price quote by Motavator) (Fixed) $8,500
17. Debit card set-up $1,500
18. Deposit and Loan Forms (per direct quote from Bankers System) $2.500
--------
Total $430,893
EXHIBIT C
M&I DATA SERVICES ANNUAL PRODUCT LIST
The M&I Data Services Annual Product Price List is updated annually
and has been omitted.
EXHIBIT D
M&I DATA SERVICES PROPOSED NETWORK CONFIGURATION
The M&I Data Services Proposed Network Configuration has been omitted.
M&I DATA SERVICES
SALESPARTNER AND PCTELLER SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT is entered into this 22nd day of March , 1996, by and
between M&I Data Services, a division of the Xxxxxxxx & llsley Corporation, a
Wisconsin corporation, ("M&I"), located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000 and Columbia Bank located at 0000 Xxxxxxxxx Xxxxxxxx Xxxx,
Xxxxxxxx Xxxx, Xxxxxxxx 00000 (the "Customer").
RECITALS
WHEREAS, M&I has developed branch automation and teller software for
use with personal computers; and
WHEREAS, Customer wishes to obtain a license to use such software for
its own internal purposes.
NOW, THEREFORE, for and in consideration of the mutual agreements
contained herein, M&I hereby grants Customer the right and license to use the
Salespartner and PCTeller Software (as described herein) subject to the ongoing
satisfaction by Customer of the following terms and conditions:
1. Salespartner and PCTeller Software. For purposes of this Agreement,
the term Salespartner and PCTeller Software (together referred to as the
"Software") shall mean branch automation and teller software systems delivered
to the Customer in machine-readable code (object code) only, together with
related user documentation provided by M&I and identified in Exhibit A.
2. Scope of License. Subject to the terms and conditions of this
Agreement, M&I hereby grants to Customer a nonexclusive, nontransferable, and
perpetual license to use the Software for its own internal business purposes and
solely accessible by the locations listed in Exhibit A. Customer acknowledges
and agrees that the Software is licensed for use with the version of the bank
system software made available from time to time by M&I through the M&I Service
Bureau (the "Service Bureau Software"). Customer further acknowledges and agrees
that the interfacing of the Software to other mainframe banking applications and
providing ongoing maintenance for such interface, if any, is outside the scope
of this Agreement. M&I acknowledges and agrees that the license granted herein
shall continue in full force and effect in the event that the Customer no longer
utilizes the Service Bureau Software, provided that Customer complies at all
times with the terms and conditions of this Agreement. Customer understands that
this License does not include the operating system which is necessary to utilize
the Software.
3. License Fee. Customer shall pay to M&I a one-time License Fee as set
forth in Exhibit A. Such fee shall be based upon the number of locations that
are authorized to access the Software, as listed in Exhibit A. The License Fee
shall include Training and Conversion Support as described in Section 5. M&I
agrees that Customer may install and use the Software, under the license granted
hereby, in additional locations or equipment other than those listed in Exhibit
A ("Additional Computers") and authorizes such Additional Computers to access
the Software provided that Customer notifies M&I prior to usage and Customer
pays an additional License Fee(s), based upon increased access computed in
accordance with M&I's then-current price schedule, within thirty (30) days after
Customer's receipt of an invoice from M&I for such fees. Customer agrees that if
it installs or uses the Software at additional locations or equipment, other
than those listed in Exhibit A, without notifying M&I prior to usage and paying
such additional License Fee(s), M&I shall, in addition to any other remedies it
may have, have the right to terminate the license granted herein, or for
increased PCTeller Software access, charge an additional PCTeller License Fee,
or for increased Salespartner Software access, charge an additional Salespartner
License Fee and maintenance fees commencing from Salespartner Delivery Date, as
described in Section 4; such fees to be based upon the increased access computed
in accordance with M&I's then-current price schedule. Customer shall also pay
all applicable taxes, duties, and charges (including, but not limited to, sales,
use, excise, and personal property taxes imposed on Customer) now or hereafter
levied, assessed, or charged against the Software while
licensed to Customer as a consequence of this Agreement, except where such
taxes, duties, or charges are based upon the income of M&I.
4. Delivery.
(a) PCTeller Delivery. M&I shall deliver on magnetic diskette to
Customer, at the time of conversion to PCTeller, one machine-readable copy of
the PCTeller Software. Delivery shall be deemed to have occurred upon Customer's
receipt of the PCTeller Software at the time of conversion ("PCTeller Delivery
Date").
(b) Salespartner Delivery. M&I shall deliver on magnetic diskette to
Customer, at the beginning of Salespartner training session as described in
Section 5, one machine-readable copy of the Salespartner Software. Delivery
shall be deemed to have occurred upon Customer's receipt of the Salespartner
Software at the beginning of the Salespartner training session ("Salespartner
Delivery Date").
5. Training and Conversion Support.
(a) PCTeller Support. M&I shall provide a two-day teller analysis
session to determine teller transaction requirements and a three-day teller
training class for a maximum of two employees of Customer to familiarize the
Customer's trainers with the features and functions of the PCTeller Software.
The sessions shall be held at the M&I Datacenter located in Xxxxx Deer,
Wisconsin, at dates and times established by M&I. M&I shall also be on-site at
the time of conversion as defined in the Data Processing Services Agreement by
and between Customer and M&I (the "Data Processing Services Agreement"), to
assist with the conversion to the PCTeller Software. M&I will also provide to
Customer, in conjunction with its conversion to PCTeller, an upgrade to the
Tellerlink host software. M&l reserves the right to change the content and
duration of the analysis and training sessions and the duration of on-site
support, provided that any changes which materially diminish the duration of the
analysis sessions, training sessions, or on-site support shall require
Customer's consent. Customer shall be responsible for all travel, lodging, and
related costs and expenses incurred by attendees. Customer agrees to reimburse
M&I for reasonable travel and lodging expenses for Training and Conversion
Support rendered to Customer outside of M&I offices, according to the terms of
the Data Processing Services Agreement.
(b) Salespartner Support. M&I shall provide initial services to
Customer to customize Salespartner up to 500 hours to support associated deposit
forms, and loan forms, and associated products defined by Customer and agreed to
by M&I. Such services to include the customization, through Salespartner
maintenance functions, of the screens, form alignment, product information, and
upload parameters; a three-day analysis session to determine product and form
completion requirements; a three-day Customer acceptance test session; and a
three-day training class to familiarize the Customer's trainers with the
run-time feature and functions of the Salespartner Software ("Customization
Services"). The sessions and class shall be held at the Customer's primary
location listed in Exhibit A at dates and times mutually agreed to by Customer
and M&I. M&I shall also provide a five-day class for a maximum of two employees
of Customer to familiarize Customer's employees with the Salespartner
maintenance functions. The class shall be held at the M&I Datacenter, located in
Xxxxx Deer, Wisconsin, at dates and times established by M&I. M&I reserves the
right to change the content and duration of the sessions and classes, provided
that any change which materially diminishes the duration of a session or class
shall require Customer's consent. Customer shall be responsible for all travel,
lodging, and related costs and expenses incurred by attendees. Customer agrees
to reimburse M&I for reasonable travel and lodging expenses for Customization
Services rendered to Customer outside of M&I offices, according to the terms of
the Data Processing Services Agreement.
6. Installation. M&I shall have no obligation to install the Software
on Customer's Personal Computer(s), and Customer agrees to install and maintain
all Software on their Personal Computer(s) unless Customer purchases Bundled
Hardware and Support Services, in which case installation services shall be
defined and attached to this Agreement.
7. Acceptance. This Agreement shall be deemed to have been accepted
by the Customer as of the date when M&I and Customer have both executed
this Agreement. The Software shall be deemed to have been accepted by
Customer upon delivery by M&I.
8. Documentation. Customer shall receive, at no additional charge,
user documentation as defined in Exhibit A, as part of the Software.
Additional sets of documentation requested by the Customer will be billed
to Customer at M&I's then-current price for such documentation.
9. Maintenance and Enhancements for PCTeller.
(a) Maintenance Services and Enhancements. For so long as the Customer
is receiving services under the Data Processing Services Agreement, M&I agrees
to provide to Customer maintenance services and enhancements for the PCTeller
Software as described below ("PCTeller Maintenance Services"). PCTeller
Maintenance Services shall be provided to Customer's primary location only, as
designated in Exhibit A. The PCTeller Maintenance Services are the following:
(i) M&I shall correct all PCTeller Software errors which
cause the PCTeller Software not to be in substantial
compliance with its user documentation and shall use
commercially reasonable efforts to correct all other PCTeller
Software errors upon discovery and proper notification by
the Customer of the existence of any error; proper
notification being deemed given only if the Customer
substantially complies with M&I's error notification
procedures in effect at that time. If, after investigation
of the reported error, it is determined that the
error is beyond M&I's responsibility, including, but not
limited to, errors resulting from modifications made by
the Customer, the Customer agrees to pay for M&I's efforts in
investigating and/or resolving the error at M&I's
then-current rates for such services, plus reasonable expenses
incurred by M&I.
(ii) M&I shall provide phone support with regard to the use and
operation of the PCTeller Software during M&I's regular
business hours and, at all other times, an emergency phone
number to be used at the Customer's discretion to secure
necessary phone support with regard to emergency situations.
(iii) M&I shall use commercially reasonable efforts in
developing future releases and upgrades of the PCTeller
Software and accompanying documentation. M&I shall
deliver to Customer one copy of any future releases and
upgrades (with Customer having the right to make and use
additional copies pursuant to Section 14 of this Agreement)
and shall deliver accompanying documentation, if any, in a
quantity specified in Exhibit A. If M&I does develop future
releases and upgrades which replace or supersede any other
version of the PCTeller Software then in use by Customer,
M&I agrees to provide maintenance services as set forth
above for the new updated version, as well as the next most
previous version.
(b) Maintenance Fee. The fee for PCTeller Maintenance Services shall be
incorporated in the On-Line Teller rates published in the M&I Customer price
list and shall be paid by Customer pursuant to the Data Processing Services
Agreement. Such fees will be included in the Customer's monthly data processing
invoice. On-Line Teller rates may be adjusted by M&I in accordance with the Data
Processing Services Agreement. Customer agrees to reimburse M&I for necessary
and reasonable time-and-material expenses, including reasonable travel and
lodging expenses, for PCTeller Maintenance Services rendered to Customer outside
of M&I's offices at Customer's request when such PCTeller Maintenance Services
could have been performed at M&I's offices, as determined solely by M&I.
(c) Termination of Maintenance. If Customer discontinues receiving
services under the Data Processing Services Agreement, then the PCTeller
Maintenance Services shall also terminate on the date of such discontinuance;
provided, however, Customer shall have the right to continue to use the PCTeller
Software pursuant to the terms and conditions of this Agreement.
10. Maintenance and Enhancements for Salespartner.
(a) Maintenance Services and Enhancements. While maintenance services
are available for Salespartner Software to M&I licensees, M&I agrees to provide
to Customer maintenance services and enhancements for the Salespartner Software
as described below ("Salespartner Maintenance Services"). Salespartner
Maintenance Services shall be provided to Customer's primary location only, as
designated in Exhibit A. Salespartner Maintenance Services are the following:
(i) M&I shall correct all Salespartner Software errors which
cause the Salespartner Software not to be in substantial
compliance with its user documentation and shall use
commercially reasonable efforts to correct all other
Salespartner Software errors upon discovery and proper
notification by the Customer of the existence of any error;
proper notification being deemed given only if the Customer
substantially complies with M&I's error notification
procedures in effect at that time. If, after investigation
of the reported error, it is determined that the
error is beyond M&I's responsibility, including but not
limited to, errors resulting from modifications made by
the Customer, the Customer agrees to pay for M&I's efforts in
investigating and/or resolving the error at M&I's
then-current rates for such services, plus reasonable expenses
incurred by M&I.
(ii) M&I shall provide phone support with regard to the use and
operation of the Salespartner Software during M&I's regular
business hours and, at all other times, an emergency phone
number to be used at the Customer's discretion to secure
necessary phone support with regard to emergency situations.
(iii) M&I shall use its best efforts in developing future
releases and upgrades of the Salespartner Software and
accompanying documentation. M&I shall deliver to Customer
one copy of any future releases and upgrades (with Customer
having the right to make and use additional copies pursuant
to Section 14 of this Agreement) and shall deliver
accompanying documentation, if any, in the quantity
specified in Exhibit A; provided that the Customer has
continuously paid the monthly maintenance fee included on
the Customer's monthly data processing invoice. If M&I does
develop future releases and upgrades which replace or
supersede any other version of the Salespartner Software
then in use by the Customer, M&I agrees to provide
maintenance services as set forth above for the new updated
version, as well as the next most previous version.
(b) Maintenance Fee. Customer shall pay to M&I, beginning ninety (90)
days following the Salespartner Delivery Date, a monthly maintenance fee listed
in Exhibit A for the Salespartner Maintenance Services, such fee to be based
upon the number of locations authorized to access the Salespartner Software (as
listed in Exhibit A) and M&I's then-current price schedule. The Salespartner
monthly maintenance fee will be included on the Customer's monthly data
processing invoice, and Customer agrees to pay the invoice according to the
payment terms of the current Data Processing Services Agreement with M&I. The
Salespartner monthly maintenance fee may be adjusted by M&I in accordance with
the terms of the Data Processing Services Agreement. Customer agrees to
reimburse M&I for time-and-material expenses, including reasonable travel and
lodging expenses, for Salespartner Maintenance Services rendered to Customer
outside of M&I offices at Customer's request when such Salespartner Maintenance
Services could have been performed at M&I's offices, as determined solely by
M&I.
(c) Termination of Maintenance. Salespartner Maintenance Services
shall remain in full force and effect unless terminated in accordance with the
following provisions:
(i) The Customer may terminate Salespartner Maintenance Services
by providing M&I with written notice of Customer's intent to
terminate such services not less than sixty (60) days prior to
the desired date of termination. Salespartner Maintenance
Services shall then terminate at the end of the month in which
the requested date of termination falls.
(ii) The Customer may request reinstatement of Salespartner
Maintenance Services by notifying M&l of the Customer's desire
to reinstate. M&I may consent to reinstatement, which consent
shall not be unreasonably withheld, provided that Customer has
paid to M&I the Salespartner monthly maintenance fee for all
months in the intervening time between the month ending date
of termination and the first of the month of reinstatement, in
which case Salespartner Maintenance Services shall again be
and remain in full force and effect.
(iii) If the Customer fails to pay M&I the Salespartner monthly
maintenance fee for two consecutive months or if Customer no
longer utilizes the Service Bureau Software, M&I may terminate
the Salespartner Maintenance Services. Termination of the
Salespartner Maintenance Services by M&I shall not preclude
any other legal remedy M&I may have against the Customer.
11. Use Rights. Customer represents and warrants that it will use the
Software solely on those computer(s) described in Exhibit A, except as provided
for in Section 14, and that it will only process information and data for
itself, its subsidiaries, parent corporation, and subsidiaries of its parent
corporation, and that it will not directly or indirectly permit any other person
or entity to have access to or use of the Software, and that it will not use the
Software to provide data processing services on a shared resource or service
bureau basis to any other person, company, or financial institutional.
12. Notification of Unauthorized Use. Customer agrees to notify M&I
promptly of any circumstances known to Customer surrounding any unauthorized
possession or use of any part of the Software, or any other information or
documentation made available pursuant to this Agreement to anyone other than
persons properly authorized by Customer to have such possession or use.
13. Ownership and Confidentiality. Customer acknowledges and agrees
that the Software, including all authorized and unauthorized copies, are
proprietary to and valuable trade secrets of M&I, and Customer shall maintain
their confidential nature. Customer agrees that the Software shall be used only
in accordance with this Agreement, and Customer shall not assign (except as
provided for in Section 20), sell, lease, market, transfer, or reproduce (except
as provided in Section 14) the Software or any modification thereto to or for
others. Customer shall limit access to the Software to Customer's employees or
third parties, when such persons (1) are performing services for the Customer,
related to the Customer's authorized use of the Software; and (2) have a valid
need to know or use the Software; provided that Customer shall advise such
persons of the Customer's confidentiality obligations and establish procedures
designed to prevent unauthorized use and access. Customer shall exercise all
reasonable precautions to prevent access to the Software by persons not
authorized by terms of this Agreement. Customer shall store the Software in a
secure place at all times it is not being used. In addition, Customer shall take
reasonable and appropriate measures to prevent copying, distribution, reverse
engineering, and reverse compiling of the Software. Customer recognizes that the
Software may be patented, copyrighted, trademarked, or otherwise protected by
M&I and Customer will not undertake to patent, copyright, trademark, or
otherwise apply for a proprietary grant or right with respect to the Software.
14. Reproduction. Customer shall have the right to install and use the
Software on each personal computer that is included in the License Fee and
appears on Exhibit A, and in case of a disaster rendering the personal computer
workstations or equipment unusable, on an equal number of personal computer
workstations or equipment. Customer shall also have the right from time to time
to install and use additional copies of the Software as required to perform
disaster recovery testing. All additional copies, whether for recovering from a
disaster or performing disaster recovery testing, are subject to the terms and
conditions of this Agreement. Customer may also reproduce the Software for
backup or archival purposes only; provided, however, such reproduction shall (1)
be solely for the use of the Customer, (2) conspicuously display the information
shown in Exhibit B, and (3) be subject to the restrictions set forth in this
Agreement.
15. Modifications. Customer acknowledges and agrees that it shall not
make any modifications to the Software object code. M&I shall not be liable to
the Customer in warranty or otherwise for modifications made to the Software
object code by someone other than M&I. Under no circumstances shall Customer
sell, distribute, or license modifications of the Software. Nothing herein will
prevent M&I from developing and distributing its own modifications to the
Software. Customer shall have the right to modify the Software as described in
the user documentation provided with the Software.
16. Warranty. THE FOLLOWING LIMITED WARRANTIES ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT
LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
(a) M&I warrants that it is the exclusive owner of the copyrights and
all other rights in the Software and that it has all the rights necessary in
order to grant the licenses specified under this Agreement. In the event of any
claim by any third party with respect to any of the Software or documentation
that such Software or documentation violates or infringes any United States
copyright or patent, M&I shall defend Customer against such claim and shall pay
all court awarded damages, losses, liabilities, claims, and expenses (including
reasonable attorneys' fees) incurred by Customer in such actions which are
attributable to such claim; provided however, that notice of a claim by the
Customer under this Section is received by M&I within two (2) years of the
termination of PCTeller Maintenance Services or Salespartner Maintenance
Services, as applicable to such claim, that M&I is notified within ten ( 10)
calendar days in writing of any suit or claim against the Customer, that the
Customer permits M&I to defend said claim of infringement and gives M&I all
reasonable and available information, assistance, and authority to enable M&I to
do so, and provided further that Customer fully observes all the terms and
conditions of this Agreement. M&I shall not be responsible for any compromise
made without its consent. Following notice of a claim or of a threatened claim,
M&I may, without obligation to do so, procure for the Customer the right to
continue to use the Software within the terms of this Agreement, or, without
obligation to do so, may modify the Software in a manner that does not
materially and adversely impact on their functionality so that further use
becomes noninfringing, or, without obligation to do so, pay Customer an amount
equal to the License Fee minus 1/60 of such License Fee times the number of
months the Customer has used the Software under the Agreement. In the event that
the Customer's use of the Software within the terms of this Agreement is held by
a court of last resort to constitute an infringement of a United States patent
or copyright and such further use or distribution is enjoined, M&I shall, at its
option and expense, (i) procure for the Customer the right to continue using the
Software within the terms of this Agreement, or (ii) modify the Software in a
manner that does not materially impact on their functionality so that further
use becomes noninfringing; provided that M&I shall have no obligation to incur
direct costs in connection with exercising either or both of the foregoing
options in excess of the limitation of liability under Section 17 of this
Agreement. Additionally, M&I shall have no obligation with respect to any such
infringement where the infringement would have been avoided but for
modifications made to the Software by the Customer. The foregoing states M&I's
entire obligation, and the Customer's exclusive remedy, with respect to
infringement.
(b) M&I warrants that the Software, when run in the operating
environment specified in the user documentation provided with the Software,
shall operate in substantial compliance with such user documentation. Customer
acknowledges and agrees that its sole remedy under this warranty is for M&I
to correct all PCTeller Software errors which cause the PCTeller
Software not to be in substantial compliance with its related user
documentation and to use its best efforts to correct all other PCTeller
Software errors that are brought to its attention by the Customer during the
term of this Agreement and the Data Processing Agreement and to correct all
SalespartnerSoftware errors which cause the Salespartner Software not to be in
substantial compliance with its related user documentation and to use its best
efforts to correct all other Salespartner Software errors that are brought to
its attention by the Customer during the ninety (90) days following the
Salespartner Delivery Date, and thereafter while Customer subscribes for
Salespartner Maintenance Services as described in Section 10. Customer
hereby acknowledges that, except for those limited warranties specified
in this Section, the Software is provided in an "AS IS" condition and is
without warranty of any kind, either express or implied, written or oral.
17. Limitation of Liability. M&I's liability for damages to Customer
for any cause whatsoever, whether in contract or in tort, including negligence
(but other than pursuant to Section 16 (a) of this Agreement with respect to
court-awarded damages and defense costs and expenses as a result of an
infringement action which shall not be subject to any limit), shall be limited
to the License Fee paid for the Software. In no event shall either party be
liable for damages caused by the other party's failure to perform its
obligations under this Agreement or for any lost profits, lost savings or
incidental or consequential damages, even if the nonperforming party has been
advised of the possibility of such damages.
18. Authorization. Customer agrees and represents that it has obtained
all necessary corporate approvals to enter into this Agreement, that the
performance of this Agreement by the Customer will not affect the safety or
soundness of the Customer or any of its affiliates, and that this Agreement and
the obligations evidenced hereby will be properly reflected on the books and
records of the Customer.
19. Termination. In the event that either party fails in any material
respect, to perform its material obligations under this Agreement and receives
written notice from the other party informing it of the breach and requiring it
to cure such breach; then, should the defaulting party fail to cure its breach
within a 30-day period following the written notice (or such reasonable period
if this breach, by its nature, cannot be cured within 30 days), the other party
shall have the right to terminate this Agreement. Upon termination of this
Agreement, Customer shall (1) immediately cease using the Software; (2) erase
the same from the storage in each computer in which it has been installed; (3)
certify to M&I in writing that Customer has taken the action described in
clauses (1) and (2) above; and (4) at the option of M&I, either return to M&I or
destroy all physical embodiments of the Software and backup copies made thereof.
20. Assignment. Except for the use rights granted in Section 11,
neither party may assign, sublicense, or otherwise transfer any or all of its
rights and obligations under this Agreement without the other party's prior
written consent, which shall not be unreasonably withheld, and any assignment
without such prior written consent shall be void and of no effect.
Notwithstanding the foregoing, either party may assign this Agreement to any
company that is: (1) directly or indirectly in control of such party, (2) under
the control of such party, or (3) under common control with such party.
21. Notices. Notices to be given or submitted by either party to the
other under the terms of this Agreement shall be sufficiently given if made in
writing and hand-delivered or sent by certified or registered mail, postage
prepaid and addressed to the president of the notified party, to the address
shown above or to such other address as the notified party shall so designate in
writing to the other party at least twenty (20) days prior to notification.
22. Entire Agreement. This Agreement, the Exhibits, and the Addendum
(if any) attached hereto supersede all previous agreements and understandings of
any nature whatsoever, verbal or written, and constitute the entire
understanding between the parties with respect to the subject matter hereof. All
oral or written representations, warranties, agreements, and other inducements
relating to this Agreement and its subject matter made prior to the execution
and delivery hereof have been included herein or, to the extent not included
herein, shall be deemed to have been fully performed and discharged or
deliberately omitted. No provision of this Agreement may be waived, modified, or
superseded as against M&I or Customer, except by written instrument signed by an
authorized officer of each party, expressly stating that it is intended to
operate as such.
23. Governing Law. This Agreement shall be governed, interpreted,
construed, and enforced in accordance with the internal laws of the State of
Wisconsin, United States of America.
24. Severability. If any provision, clause, part, or the application
of this Agreement is held invalid, the remainder of this Agreement or the
application of such provision, clause, or part under other circumstances
shall not be affected.
25. Miscellaneous. Time is of the essence. No claim, regardless of
form, arising out of this Agreement may be brought by Customer more than two (2)
years after the events giving rise to the claim for relief occurred. The
obligations of confidentiality and non-use after termination shall survive
termination.
THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ THIS AGREEMENT,
UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS, AS STATED
HEREIN.
IN WITNESS WHEREOF, the parties hereto through their duly authorized
officers and agents have hereby executed this Agreement on the date before
written.
COLUMBIA BANK M&I DATA SERVICES
(CUSTOMER) (M&I)
By: /S/ By: /S/
Name: Xxxx X. Xxxx, Xx. Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: President & CEO Title: Executive Vice President
By: ________________________ By: /S/
Name: ________________________ Name: Xxxxxxx X. Xxxxxxx
Title: ________________________ Title: Vice President
EXHIBIT A
SALESPARTNER AND PCTELLER SOFTWARE LICENSE AGREEMENT
M&I DATA SERVICES
Xxxxxxxxx, Xxxxxxxxx 00000
Customer Name: Columbia Bank
Address: 0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Description and Number of Licensed Computer(s)/Workstation(s)/Equipment
-----------------------------------------------------------------------
PCTeller/Salespartner - Unlimited use of license for up to 12 locations.
Customer's Primary Location Designation:
----------------------------------------
Columbia Bank
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
User Documentation:
-------------------
PCTeller User Guide - 12 copies
PCTeller Training Guide - 5 copies
Salespartner Coordinator Maintenance Manual - 2 copies
Salespartner Branch Administration Manual - 2 copies
Salespartner User Guide - 12 copies
License Fee--First Twelve (12) Locations:
-----------------------------------------
Per mini location license fee ($5,000) $20,000
Unlimited locations license fee ($10,800) 75,600
Sales Tax (5%) 4,780
Customization (Estimated 550 hours at $105 per hour) 57,750
--------
TOTAL $158,130
Total License Fee, including sales tax, due upon execution of this Agreement.
License Fee--Additional Locations:
----------------------------------
Mini location fee, then-current pricing schedule, not to exceed $5,000 Unlimited
location fee, then-current pricing schedule, not to exceed $10,800
Salespartner Maintenance Fee:
-----------------------------
$50 per mini location.
$100 per unlimited location authorized to access Salespartner Software.
EXHIBIT B
SALESPARTNER AND PCTELLER SOFTWARE LICENSE AGREEMENT
M&I DATA SERVICES
Xxxxxxxxx, Xxxxxxxxx 00000
Customer shall prepare labels containing the following information and affix a
label to each diskette copy of the Salespartner Software and PCTeller Software
reproduced by the Customer:
1. Salespartner or PCTeller Software as applicable.
2. Diskette _____ of _____.
3. Licensed material - property of and copyrighted by M&I Data Services
4. This copy was made under M&I Salespartner and PCTeller Software License
Agreement dated March 22, 1996 and may be used only on the computer(s)
listed in that Agreement. It may not be transferred to a third party.
ADDENDUM NO. 1
SALESPARTNER AND PCTELLER SOFTWARE LICENSE AGREEMENT
THIS ADDENDUM NO. I to the Salespartner and PCTeller Software License
Agreement is entered into this 17th day of May, 1996, by and between M&I Data
Services ("M&I"), and Columbia Bank, located at 00000 Xxxxxx Xxxxxxxx Xxxxxxx,
Xxxxxxxx XX 00000 (the "Customer").
RECITALS
WHEREAS, Customer and M&I have entered into a Salespartner and PCTeller
Software License Agreement on an even day herewith, pursuant to which Customer
obtained a right and license to use the Salespartner and PCTeller Software for
its own internal business purposes; and
WHEREAS, Customer wishes to acquire certain computer hardware,
operating software, and installation services to be used in conjunction with
such software systems
NOW, THEREFORE, in consideration of the Recitals, the mutual convenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, M&I and Customer
agree as follows:
1. Hardware. Customer agrees to purchase through M&I the
hardware and software listed in Exhibit A (the "Hardware").
2. Preinstallation Services. All Hardware will be set up and
initial system tested at M&I. This includes, but is not limited to,
configuration of the file servers, gateways and local area network (LAN)
hardware, installation and configuration of memory/adapters, and setup and
configuration of Novell Netware LAN software, LAN menuing software and
utilities, LAN remote support software, LAN tape backup software, and software
packages purchased through M&I.
3. Installation Services. M&I will ship the Hardware
listed in Exhibit A to the Customer's locations, and at the locations
install the Hardware. Installation Services will include training
installs, pre-conversion installations of file servers and at least one
workstation at each location, and final conversion weekend installation.
Customer is responsible for all LAN and electrical wiring.
4. Acceptance. The Hardware and installation services will
be deemed accepted by Customer upon completion of the Installation Services
defined in Section 3 of this Addendum No. 1.
5. Warranty. THE FOLLOWING LIMITED WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT
NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
(a) The hardware warranties are provided by the equipment
manufacturer and are as follows:
Compaq Prolinea 575e CPU Three (3) years on-site
Compaq Deskpro 5100 CPU Three (3) years on-site
Compaq 14" Super VGA Color CRT One (1) year exchange
NCR Model 5021 Printer Ninety (90)days on-site
NCR Model 5223 Printer Ninety (90)days on-site
HP Laserjet 4Plus Printer One (1) year exchange
Practical Peripheral 14400 Modem Five (5) years
APC 1000VA Uninterruptable Power Supply Two (2) years
M&I will secure the warranties for the Customer from the
manufacturer and, depending upon the Customer's current
agreements with the manufacturer, the Customer may be required
to sign a warranty/service agreement from the manufacturer.
Upon Customer's written request, M&I will secure detailed
disclosures of manufacturer's warranties. Customer
acknowledges and agrees that M&I does not itself warrant any
of the hardware or software provided under this Addendum.
(b) M&I warrants that the installed operating environment
(including all Hardware) will allow stable access to the
software installed by M&I and to the M&I Host System, provided
telephone access is available to Customer. Customer
acknowledges and agrees that, during the twelve (12) months
following installation, its sole remedy under this warranty
for the operating environment is for M&I to use its best
efforts to correct deficiencies brought to its attention by
the Customer. Customer hereby acknowledges that M&I is not
liable for Hardware malfunctions.
6. Limitation of Liability. M&I's liability for damages to
Customer for any cause whatsoever, whether in contract or in tort, including
negligence, shall be limited to the fees paid for the installation services
provided by M&l hereunder. In no event shall M&I be liable for damages
caused by Customer's failure to perform its obligations under this Agreement or
for any lost profits, lost savings, and incidental or consequential damages,
even if M&I has been advised of the possibility of such damage.
7. Technical Support. M&I will provide telephone support to
Customer for the twelve (12) months following installation, assistance in
problem determination, problem resolution, and dispatching field engineers
relative to manufacturer's warranties. M&I will remain current on new
releases of the Hardware and assist the Customer in determining the value of
upgrading and, when requested by Customer, negotiate the price of the
upgrade from the vendor. Pricing for assistance with installing any
upgrades will be based upon M&I's then current rates for such services. The
support is provided on the condition that Customer sends at minimum one (1)
person to Novell LAN training and that Customer designates two (2) contact
persons for M&I to interact with on supporting the operating environment.
If on-site support is required or requested the Customer agrees to pay for
M&I's effort at M&I's thencurrent rates for such services, plus reasonable
expenses incurred by M&I. M&I shall provide telephone support with regard to the
operating environment during M&I's regular business hours and, at all other
times, an emergency telephone number to be used at the Customer's discretion to
secure necessary telephone support with regard to emergency situations.
8. Purchase Price. Customer agrees to pay the Hardware and
Installation Services purchased from M&I. The total purchase price, excluding
all applicable taxes, duties, shipping charges, and travel and lodging expenses
will not exceed $270,115.00 for the Hardware in Exhibit A and $15,225.00 for
the Installation Services. The Customer shall pay all applicable taxes,
duties, shipping expenses, and other charges (including, but not limited to,
sales, use, excise, and personal property taxes) now or hereafter levied,
assessed, or charged against the Hardware and services as a consequence of
this Addendum No. 1, except where such taxes, duties, or charges are based
upon the net income of M&I.
9. Payment Terms. Customer agrees to pay for the Hardware
listed in Exhibit A and the Installation Services within ten (10) days of
receipt of invoice. Amounts past due thirty (30) days or more are subject to a
late fee of one and one half percent (1.50%) per month of the past due
amounts. M&I will invoice Customer upon execution of this contract
addendum for fifty percent (50%) of the Installation Services. Hardware
listed in Exhibit A will be invoiced upon shipment to Customer. M&I will
invoice Customer upon completion of the Installation Services for the
remaining fifty percent (50%) of the Installation Services, and all
out-of-pocket charges.
10. Change Orders. Customer agrees to notify M&I of any request
to change the Hardware in Exhibit A of this Addendum No. 1 in writing. M&I
will prepare a change order that will define the scope of the changes to include
the new prices for the Hardware and Installation Services. M&I will send
the change order to Customer for an authorized signature.
11. Restocking Fee. Customer agrees to a restocking fee of two
(2.0%) percent of each item's purchase price plus the shipping costs for
returned items or cancelled items in Exhibit A of this Addendum No. 1. The
restocking fee will apply to all items in Exhibit A of this Addendum No. 1 and
to all or any subsequent change orders to this Addendum No.1.
12. Incorporation of License Agreement. Terms and conditions of
the Salespartner and PCTeller Software License Agreement not in conflict with
those contained herein shall govern this Addendum No. 1 as if specifically
contained in this Addendum No. 1.
THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ THIS XXXXXXXX
XX. 0, XXXXXXXXXXX XX, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS, AS
STATED HEREIN.
IN WITNESS WHEREOF, the parties hereto through their duly authorized
officers and agents have hereby executed this Addendum No. 1 on the date before
written.
COLUMBIA BANK M&I DATA SERVICES
(CUSTOMER) (M&I)
By: /S/ By: /S/
Name: Xxxx X. Xxxxxxxx, Xx. Name: Xxxxx Xxxxxxx
Title: CFO Title: VP
Attest: Attest:
By: /S/ By: /S/
Name: Xxxxxxx Xxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Title: Assistant Vice President
EXHIBIT A
ADDENDUM NO. 1
SALESPARTNER AND PCTELLER SOFTWARE LICENSE AGREEMENT
M&I DATA SERVICES
Xxxxxxxxx, Xxxxxxxxx 00000
BRANCH BRANCH TOTAL
------ ------------
Columbia Town Center $32,059.00
Columbia Town Center - Satellite 6,905.97
Ellicott City 64,344.18
Xxxxxx'x Choice 26,306.50
Oakland Xxxxx 34,896.12
Glenmore 11,233.94
Vantage House 7,018.38
Xxxxxx Park Place 7,018.38
Blakehurst 3,509.19
Cross Keys 30,991.87
Heaver Plaza 42,153.47
Long Gate 18,902.98
AMENDMENT NO. 1 TO SALESPARTNER AND PCTELLER
SOFTWARE LICENSE AGREEMENT
This Amendment No. 1 to Salespartner and PCTeller Software License
Agreement is entered into as of this __________ day of ____________________,
1997, by and between M&I Data Services ("M&I") and The Columbia Bank (the
"Customer").
RECITALS
WHEREAS, M&I and Customer are parties to a Salespartner and PCTeller
Software License Agreement dated March 22, 1996 (the "Agreement"), pursuant to
which the Customer obtained a right and license to use the Salespartner and
PCTeller Software (the "Software") for its own internal business purposes; and,
WHEREAS, the Customer wishes to license additional copies of the
Software.
NOW, THEREFORE, in consideration of the Recitals and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants and agreements set forth herein, M&I
and Customer agree as follows:
1. AMENDMENT TO AGREEMENT. Exhibit A to the Agreement is amended
by, and should be read in conjunction with, Exhibit A attached hereto.
2. CONTINUANCE OF AGREEMENT. Except as amended herein, the
conditions and terms of the Agreement shall remain in full force and effect.
3. BINDING AGREEMENT. Each party executing this Amendment
No. 1 agrees to be bound by all the terms and conditions contained in the
Agreement as modified by this Amendment No. 1.
THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ THIS AMENDMENT
NO. 1, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS AS
STATED HEREIN.
IN WITNESS HEREOF, the parties hereto, through their duly authorized
officers and agents, have hereby executed this Amendment No.1 on the date before
written.
THE COLUMBIA BANK M&I DATA SERVICES
(CUSTOMER) (M&I)
By: /S/ By: /S/
Name: Xxxx X. Xxxxxxxx, Xx. Name: Xxxxx X. Van Sistine
Title: Executive Vice President Title: Vice President
EXHIBIT A TO AMENDMENT NO. 1
SALESPARTNER AND PCTELLER SOFTWARE LICENSE AGREEMENT
M&I DATA SERVICES
Xxxxxxxxx, Xxxxxxxxx 00000
Customer Name: The Columbia Bank
Address: 0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Description and Number of Licensed Computer(s)/Workstation(s)/Equipment:
------------------------------------------------------------------------
Total of Thirteen (13) locations to be defined by the Customer.
Software - Twelve (12) locations licensed under original License
Agreement. One (1) location licensed pursuant to this
Amendment No. 1.
Customer's Primary Location Description:
----------------------------------------
The Columbia Bank
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
User Documentation:
-------------------
PCTeller User Guide - 5 copies
Salespartner Branch Administration Manual - 1 copy
Salespartner User Guide - 3 copies
License Fee:
------------
PREVIOUSLY LICENSED: $ 153,350.00
Due upon execution of this Amendment:
Long Gate Branch Salespartner stations - 3 $ 10,800.00
0000 Xxxx Xxxx Xxxxxxx PCTeller stations - 5
Xxxxxxxx Xxxx, XX 00000
Wilde Lake Branch Salespartner stations - 3 $ 10,800.00
00000 Xxxx Xxxxxx Xxxx Xxxxx 000 PCTeller stations - 6
Xxxxxxxx, XX 00000
Harmony Hall Branch PCTeller stations - 2 @ $795 $ 1,590.00
0000 Xxxxx Xxxx ------------
Xxxxxxxx, XX 00000
Subtotal 23,190.00
SalesTax-(5%) 1,159.50
------------
TOTAL $ 24,349.50
------------
Total License Fee to Date Excluding Tax: $ 164,150.00
============
Software Maintenance Fee:
$50 per mini location.
$100 per month per location authorized to access the Software.