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EXHIBIT 10.3
Agreement Number: BK97-19IT
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AGREEMENT
between
FISERV SOLUTIONS, INC.
d/b/a FISERV Brookfield
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
and
Mercantile Bank of West Michigan
0000 Xxxxxxx Xxxxxx X.X.
Xxxxx Xxxxxx, Xxxxxxxx 00000
Date: September 10, 1997
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[FISERV LOGO]
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AGREEMENT dated as of September 10, 1997 (the "Agreement") between
FISERV SOLUTIONS, INC., a Wisconsin corporation d/b/a Fiserv Brookfield
("Fiserv"), and Mercantile Bank of West Michigan ("Client").
Fiserv and Client hereby agree as follows:
1. Term. The initial term of this Agreement shall be three ( 3 )
years and, unless written notice of non-renewal is provided by either party at
least 180 days prior to expiration of the initial term or any renewal term,
this Agreement shall automatically renew for a renewal term of one ( 1 )
year. This Agreement shall commence on the earliest of the day the Fiserv
Services (as hereinafter defined) are first used by Client or December 31,
1997.
2. Services. (a) Services Generally. Fiserv, itself and through its
affiliates, agrees to provide Client, and Client agrees to obtain from Fiserv
the services (the "Services") and products (the "Products") (collectively the
"Fiserv Services") described in the attached Exhibits:
Exhibit A - Account Processing Services
Exhibit B - Performance Standards
The Exhibits set forth specific terms and conditions applicable to the
Services and/or Products, and where applicable, the Fiserv affiliate performing
the Services and/or Products. Client may also select additional services (the
"Additional Services") and products (the "Additional Products") (collectively
the "Fiserv Additional Services") from time to time by incorporating an
appropriate Exhibit H to this Agreement.
(b) Conversion Services. Fiserv will convert existing applicable Client
data files to the Fiserv Services. Those activities designed to transfer the
processing of Client's data from its present servicer to the Fiserv Services
are referred to as "Conversion Services". Client agrees to cooperate with
Fiserv in connection with Fiserv's provision of Conversion Services and to
provide all necessary information and assistance in order to convert the Client
data files. Client is responsible for all out-of-pocket expenses associated
with the Conversion Services. Fiserv will provide Conversion Services as
required in connection with Fiserv Services.
(c) Training Services. Fiserv shall provide training, training aids, user
manuals, and other documentation for Client's use to enable Client personnel to
become familiar with the Fiserv Services. If requested by Client, classroom
training in the use and operation of the Fiserv Services will be provided at a
training facility designated by Fiserv. All such training aids and manuals
remain the property of Fiserv.
(d) Network Support Services. At Client's request, Fiserv shall provide
Network Support Services (the "Network Support Services") consisting of
communication line monitoring and diagnostic equipment and support personnel to
discover, diagnose, repair, or report line problems to the appropriate
telephone company.
3. Communication Lines, Computer Terminals, and Related Equipment. (a)
Communications Lines and Related Equipment. Fiserv shall order, on Client's
behalf, the installation of appropriate data communication lines and
communications equipment at Fiserv's data center to facilitate Client's access
to the Fiserv Services. Client understands and agrees to pay such charges
relating to the installation and use of data communications lines and
communications equipment as set forth in the Exhibits. Except to the extent
Fiserv shall provide Network Support Services to Client, Fiserv shall not be
responsible for the reliability or continued availability of the telephone
lines and/or communications equipment used to access the Fiserv Services.
(b) Computer Terminals and Related Equipment. Client shall obtain for its
locations sufficient computer terminals and other equipment, approved by Fiserv
and compatible with the Fiserv Services, to transmit and receive data between
Client's locations and Fiserv's data center. Fiserv and Client may mutually
agree to change the type of computer terminal and equipment used by Client.
4. Fees for Fiserv Services. (a) General. Client agrees to pay Fiserv
the fees for the Fiserv Services specified in the Exhibits. Fees for Fiserv
Services may be increased from time to time as set forth in the applicable
Exhibit. Upon notification to and acceptance by Client, Fiserv may increase
its fees in excess of amounts listed in the Exhibits in the event that Fiserv
implements major system enhancements to comply with changes in law, government
regulation, or industry practices.
(b) Additional Charges. Fees for passthrough expenses, such as telephone,
microfiche, courier, and other charges incurred by Fiserv for goods or services
obtained by Fiserv on Client's behalf shall be billed to Client at cost plus
the applicable Fiserv service fee. Such passthrough expenses may be changed
from time to time upon notification of a fee change from a vendor/provider.
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(c) Taxes. Fiserv shall add to each invoice, and Client shall pay, any
sales, use, excise, value added, and other taxes and duties however designated
that are levied by any taxing authority relating to the Fiserv Services. In no
event shall Client be responsible for taxes based upon the net income of
Fiserv.
(d) Exclusions. The charges and fees set forth in the Exhibits do not
include, and Client shall be responsible for, furnishing transportation or
transmission of information between the Fiserv data center, Client's site or
sites, and any applicable clearing house, regulatory agency, or Federal Reserve
Bank.
(e) Network Support Services. Network Support Services shall be rendered
from Fiserv premises. Off-premise support will be provided upon Client's
request on an as available basis at the then-current Fiserv time and materials
rates, plus reasonable travel and living expenses.
(f) Payment Terms. Fees for Fiserv Services are due and payable monthly
upon receipt of invoice. Such invoice will contain:
(i) estimated fees for the following month applicable to each
Service and/or Product;
(ii) estimated out-of-pocket charges for the following month payable
by Fiserv for the account of Client; and
(iii) estimated sales or other taxes thereon (collectively the
"Estimated Fees").
Fiserv shall timely reconcile the Estimated Fees paid by Client for the
Fiserv Services for the month and the fees and charges actually due Fiserv
based on Client's actual use of Fiserv Services for such month and notify
Client of any difference. Fiserv shall either issue a credit to Client or
provide Client with an invoice for any additional fees or other charges owed.
Fiserv may change the amount of Estimated Fees billed at any time to reflect
appropriate changes in actual use of Fiserv Services. In the event any amounts
due remain unpaid beyond the 30th day after payment is due, Client shall pay a
late charge of 1.0% per month. Client agrees that it shall neither make nor
assert any right of deduction or set-off from invoices submitted by Fiserv for
Fiserv Services; provided that if Client should dispute any charges on an
invoice, that amount may be set aside without being considered in default until
resolved with Fiserv in a timely manner.
Client agrees to the Automated Clearing House ("ACH") method of payment of
invoices by the twenty-fifth (25th) of the month of the month of invoice.
5. Procedures for Use of Services. (a) Procedures. Client agrees to
comply with any applicable regulatory requirements and with reasonable
operating and access procedures for use of the Services established by Fiserv
and furnished from time to time to Client.
(b) Changes. Fiserv continually reviews and modifies the Fiserv systems
used in the delivery of the Services (the "Fiserv System") to improve service
and to comply with government regulations, if any, applicable to the data
utilized in providing the Services. Fiserv reserves the right to make changes
in the Services, including but not limited to operating procedures, the type of
equipment or software resident at, and the location of the Fiserv data center.
Fiserv will notify Client of any material change that affects Client's normal
operating procedures, reporting, or service costs prior to implementation of
such change.
6. Client Obligations. (a) Input. Client shall be solely responsible
for the input, transmission, or delivery to and from Fiserv of all information
and data required by Fiserv to perform the Services unless Client has retained
Fiserv to handle such responsibilities. The data shall be provided in a format
and manner approved by Fiserv. Client will provide at its own expense or
procure from Fiserv all equipment, computer software, communication lines, and
interface devices required to access the Fiserv System. If Client has elected
to provide such items itself, Fiserv shall provide Client with a list of
compatible equipment and software; Fiserv reserves the right to charge Client
its standard fee for recertification of the Fiserv System resulting from such
election for changes for equipment not on the certified list.
(b) Client Personnel. Client shall designate appropriate Client personnel
for training in the use of the Fiserv System, shall supply Fiserv with
reasonable access to Client's site during normal business hours for Conversion
Services and shall cooperate with Fiserv personnel in their performance of
Services, including Conversion Services.
(c) Use of Fiserv System. Client shall comply with any operating
instructions on the use of the Fiserv System provided by Fiserv, shall review
all reports furnished by Fiserv for accuracy, and shall work with Fiserv to
reconcile any out of balance conditions. Client shall determine and be
responsible for the authenticity and accuracy of all information and data
submitted to Fiserv.
(d) Forms, Supplies, Etc. Client shall furnish, or, if Fiserv agrees to
so furnish, reimburse Fiserv for, any special forms, supplies, microfiche, or
courier services applicable to the provision of Services.
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7. Ownership and Confidentiality. (a) Fiserv Information Client
acknowledges that all computer programs, including software modifications
developed by Fiserv for its proprietary software (subject to rights of Client
to Custom Programming of Client as mutually agreed upon from time to time),
software documentation and training aids, and all data, code, techniques,
algorithms, methods, logic, architecture, and designs, embodied or incorporated
therein, made available by Fiserv as part of the Services are CONFIDENTIAL
INFORMATION belonging exclusively to Fiserv or third parties from whom Fiserv
has secured a right of use. Client shall treat as confidential and will not
disclose or otherwise make available any of the Confidential Information, in
any form, to any person other than employees or authorized representatives of
Client who require such access or disclosure to perform their duties for Client
and have agreed to keep the Confidential Information confidential, consistent
with this Agreement. Client will not use the Confidential Information except
in connection with the Services under this Agreement. The Confidential
Information will be returned to Fiserv upon Fiserv's request or in the event of
termination of this Agreement. The term "Confidential Information" shall not
include information or data which was known to the receiving party prior to
delivery by one to the other, is or becomes publicly available or is disclosed
to the other party by a third party who is not under a duty of confidentiality.
(b) Client Information. Fiserv will treat Client Files as confidential
and will not disclose or otherwise make available Client Files to any person or
entity except as described in paragraph 8. Fiserv will also maintain the
confidentiality of all Client's business practices and procedures.
(c) Confidentiality of This Agreement. Fiserv and the Client agree to
keep confidential without disclosure to third parties other than authorized
representatives of Client to include, but not limited to, auditors,
accountants, attorneys, representations of the Security Exchange Commissions
and consultants, the prices, terms and conditions set forth in this Agreement.
(d) Securities filing exception. Notwithstanding any other provision of
this Agreement, Fiserv agrees that Client may file this Agreement with the
Securities and Exchange Commission ("SEC") and any state securities agencies,
and may include a brief summary of this Agreement in any registration statement
or report that it files with the SEC or any such agencies.
8. Regulatory Agencies, Regulations and Legal Requirements. (a) Client
Files. The records maintained and produced for Client in the performance of
this Agreement (the "Client Files") may be subject to examination by such
Federal, State, or other governmental regulatory agencies as may have
jurisdiction over the Client's business to the same extent as such records
would be subject if they were maintained by Client on its own premises. Client
agrees that Fiserv is authorized to give all reports, summaries, or information
contained in or derived from the data in the possession of Fiserv relating to
Client when formally requested to do so by an authorized regulatory or
government agency.
(b) Compliance with Regulatory Requirements. Client agrees to comply
with, and shall be responsible for complying with, applicable regulatory and
legal requirements, if applicable, including without limitation:
(i) submitting a copy of this Agreement to the appropriate
regulatory agencies prior to the date Services commence;
(ii) providing adequate notice to the appropriate regulatory
agencies of the termination of this Agreement or any material changes in
Services;
(iii) retaining records of its accounts as required by regulatory
authorities;
(iv) obtaining and maintaining, at its own expense, any Fidelity
Bond required by any regulatory or governmental agency; and
(v) maintaining, at its own expense, such casualty and business
interruption insurance coverage for loss of records from fire, disaster,
or other causes, and taking such precautions regarding the same, as may
be required by regulatory authorities.
9. Warranties. (a) Fiserv Warranties. Fiserv represents and warrants
that:
(i)(A) the Services will conform to the specifications as referenced
in the Information Technology, Inc. documentation for those modules set
forth in the Exhibit A - 1 copies of which will have been delivered to
Client as referenced in Section 2(c); (B) Fiserv will perform Client's
work accurately provided that Client supplies accurate data and follows
the procedures described in all Fiserv documentation, notices, and
advices; (C) Fiserv personnel will exercise due care in the provision of
Services; (D) the Fiserv System will comply in all material respects with
all applicable Federal and State regulations governing the Services; and
(E) the Fiserv System is or will be Year 2000 compliant.
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In the event of an error or other default caused by any Fiserv personnel,
systems, or equipment, Fiserv shall correct the data and/or correctly
reprocess the affected report at no additional cost to Client.
Notwithstanding any other provision of this Agreement, Client's exclusive
remedy pertaining to this Agreement and the Services rendered shall be
recomputation of affected accounts or items. Client agrees to supply
Fiserv with a written request for correction of the error within ninety
(90) days after Client's receipt of the work containing the error. Work
reprocessed due to errors in data supplied by Client, on Client's behalf
by a third party, or by Client's failure to follow reasonable procedures
set forth by Fiserv shall be billed to Client at the then current Fiserv
time and material rates.
(ii) it owns or has a license to furnish all equipment or software
comprising the Fiserv System. Fiserv shall indemnify Client and hold it
harmless against any claim or action that alleges that the use of the
Fiserv System infringes a United States patent, copyright, or other
proprietary right of a third party. Client agrees to notify Fiserv
promptly of any such claim provided that Fiserv acknowledges that such
claim is entitled to the indemnity and grants to Fiserv the sole right to
control the defense and disposition of all such claims. Client shall
provide Fiserv with reasonable cooperation and assistance in the defense
of any such claim.
THE WARRANTY STATED ABOVE IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE
BY FISERV. FISERV DOES NOT MAKE, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL OTHER
WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES
OR OBLIGATIONS OF FISERV FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE
DELIVERY, USE, OR PERFORMANCE OF FISERV SERVICES.
(b) Client Warranties. Client represents and warrants that: (A) no
contractual obligations exist that would prevent Client from entering into this
Agreement; (B) it has complied with all applicable regulatory requirements; and
(C) Client has requisite authority to execute, deliver, and perform this
Agreement. Client will indemnify and hold harmless Fiserv, its officers,
directors, employees, and affiliates against any claims or actions arising out
of (x) the use by Client of the Fiserv System in a manner other than that
provided in this Agreement or in the operating instructions supplied by Fiserv
to Client and (y) any and all claims by third parties through Client arising
out of the performance and non-performance of services by Fiserv, provided that
the indemnity listed in clause (y) hereof shall not preclude Client's recovery
of direct damages pursuant to the terms and subject to the limitations of this
Agreement.
10. Limitation of Liability. (a) General. IN NO EVENT SHALL FISERV BE
LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING FROM CLIENT'S USE OF FISERV'S SERVICES, OR
FISERV'S SUPPLY OF EQUIPMENT OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM
ARISES IN TORT OR IN CONTRACT. CLIENT MAY NOT ASSERT ANY CLAIM AGAINST FISERV
MORE THAN TWO (2) YEARS AFTER SUCH CLAIM ACCRUED. FISERV'S AGGREGATE LIABILITY
FOR ANY AND ALL CAUSES OF ACTION RELATING TO SERVICES SHALL BE LIMITED TO THE
TOTAL FEES PAID BY CLIENT TO FISERV FOR THE SERVICES RESULTING IN SUCH
LIABILITY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM ACCRUED.
FISERV'S AGGREGATE LIABILITY FOR A DEFAULT RELATING TO EQUIPMENT OR SOFTWARE
SHALL BE LIMITED TO THE AMOUNT PAID FOR THE EQUIPMENT OR SOFTWARE.
(b) Lost Records. If Client's records or other data submitted for
processing are lost or damaged as a result of any failure by Fiserv, its
employees, or agents to exercise reasonable care to prevent such loss or
damage, the liability of Fiserv on account of such loss or damages shall not
exceed the reasonable cost of reproducing such records or data.
11. Disaster Recovery. (a) General. Fiserv maintains a disaster
recovery service plan (the "Disaster Recovery Service Plan") for each Service
provided by Fiserv. A "Disaster" shall mean any unplanned interruption of the
operations of or inaccessibility to the Fiserv data center in which Fiserv,
using reasonable judgment, requires relocation of processing to a primary
recovery location. Fiserv shall notify Client as soon as possible after it
deems a service outage to be a Disaster. Fiserv shall move the processing of
Client's standard on-line services to a primary recovery location as
expeditiously as possible and shall coordinate the cut-over to back-up
telecommunication facilities with the appropriate carriers. Client shall
maintain adequate records of all transactions during the period of service
interruption and shall have personnel available to assist Fiserv in
implementing the switchover to the primary recovery location. During a
Disaster, optional or on-request services shall be provided by Fiserv only to
the extent adequate capacity exists at the primary recovery
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location and only after stabilizing the provision of base on-line
services.
(b) Data Communications. Fiserv shall work with Client to establish a
plan for alternative data communications in the event of a Disaster.
(c) Annual Test. Fiserv shall test its Disaster Recovery Service Plan
annually. Client agrees to participate in and assist Fiserv with such test, if
requested by Fiserv. Test results will be made available to Client's
management, regulators, internal and external auditors, and Client's insurance
underwriters, upon request.
(d) Client Plans. Fiserv agrees to release the information necessary to
allow Client to develop a disaster contingency plan that operates in concert
with the Disaster Recovery Service Plan.
(e) No Warranty. Client understands and agrees that the Disaster Recovery
Service Plan is designed to minimize, but not eliminate, risks associated with
a Disaster affecting the Fiserv data center supplying the Services. Fiserv
does not warrant that service will be uninterrupted or error free in the event
of a Disaster. Client maintains responsibility for adopting a disaster
recovery plan relating to disasters affecting Client's facilities and for
securing business interruption insurance or other insurance as necessary for
Client's protection.
12. Termination. (a) Material Breach. Either party may terminate this
Agreement in the event of a material breach by the other party not cured
within ninety (90) days following written notice stating, with particularity
and in reasonable detail, the nature of the claimed breach.
(b) Failure to Pay. In the event any invoice remains unpaid by Client
thirty (30) days after its due date, or Client has deconverted any of its data
from the Fiserv System without prior written consent from Fiserv, Fiserv, at
its sole option, may terminate this Agreement and/or Client's access to and use
of the Fiserv Services. Any invoice submitted by Fiserv shall be deemed
correct unless Client provides written notice to Fiserv within fifteen (15)
days of the invoice date specifying the nature of the disagreement. Should
Client dispute any charges on an invoice, that amount may be set aside without
being considered in default until resolved with Fiserv in a timely manner.
Remedies contained in this Section 12 are cumulative and are in addition to the
other rights and remedies available to Fiserv under this Agreement or
otherwise.
(c) Defaults. If Client:
(i) defaults in the payment of any sum of money due hereunder;
(ii) breaches this Agreement in any material respect or otherwise
defaults in any material respect in the performance of any of its
obligations under this Agreement; or
(iii) commits an act of bankruptcy or becomes the subject of any
proceeding under the Bankruptcy Act or becomes insolvent or if any
substantial part of Client's property becomes subject to any levy,
seizure, assignment, application, or sale for or by any creditor or
governmental agency;
then, in any such event, Fiserv may, at its sole option, upon written notice,
terminate this Agreement and be entitled to recover from Client as liquidated
damages an amount equal to the present value of all payments remaining to be
made hereunder for the remaining term of the Initial Term or any renewal term
of this Agreement. For purposes of the preceding sentence, present value shall
be computed using the "prime" rate (as published in the Wall Street Journal) in
effect at the date of termination and "all payments remaining to be made" shall
be calculated based on the average bills for the three (3) months immediately
preceding the date of termination. Client agrees to reimburse Fiserv for any
expenses Fiserv may incur, including reasonable attorneys' fees, in taking any
of the foregoing actions. The remedies contained in this subsection are
cumulative and in addition to all other rights and remedies available to Fiserv
under this Agreement, by law or otherwise.
(d) Convenience. Client may terminate this Agreement during any term by
paying a termination fee based on the remaining unused term of this Agreement,
the amount to be determined by multiplying the Client's largest monthly invoice
for each of the Fiserv Services received by Client during the term by eighty
(80) percent times the remaining months of the term, plus any unamortized
conversion fees or third party costs existing on Fiserv's books on the date of
termination. Client understands and agrees that Fiserv losses incurred as a
result of early termination of the Agreement would be difficult or impossible
to calculate as of the effective date of termination since they will vary based
on, among other things, the number of clients using the Fiserv System on the
date the Agreement terminates. Accordingly, the amount set forth in the first
sentence of this subsection represents Client's agreement to pay and Fiserv's
agreement to accept as liquidated damages (and not as a penalty) such amount
for any such Client termination for convenience.
(e) Merger. In the event of a merger or reorganization between Client and
another organization in which Client is not the surviving organization and
where the
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other organization was not previously a user of Fiserv services similar to the
Services being provided hereunder, Fiserv will allow an early termination of
this Agreement upon the following terms and conditions:
(i) Written notice must be given three (3) months in advance,
specifying the termination date;
(ii) Fiserv may specify a deconversion date (not more than thirty
(30) days after the requested termination date), based on its previous
commitments and work loads; and
(iii) Fiserv may charge a termination fee in accordance to the
following schedule: (A) for the first and second years, the Client's
average monthly invoice excluding third party charges during that year,
for the Fiserv service terminated, times eighty (80%) percent times
twelve (12) months; (B) for the third year, the Client's average monthly
invoice excluding third party costs during the prior year, for the Fiserv
service terminated, times fifty (50%) percent times twelve (12) months.
(f) Return of Data Files. Upon expiration or termination of this
Agreement, Fiserv shall furnish to Client such copies of Client's data files
("Client Files") as Client may request in Fiserv's standard machine readable
format form along with such information to include applicable reports and
assistance as is reasonable and customary to enable Client to deconvert from
the Fiserv System, provided, however, that Client consents and agrees and
authorizes Fiserv to retain Client Files until (i) Fiserv has been paid in full
for all Services provided hereunder through the date such Client Files are
returned to Client, and has been paid any and all other amounts that are due or
will become due under this Agreement, including, but not limited to, data
communication lease obligations, if any; (ii) Fiserv has been paid its then
standard rates as outlined in Exhibit A - 2 - Paragraph 5 for providing the
services necessary to return such Client Files; (iii) if this Agreement is
being terminated, Fiserv has been paid any applicable termination fee pursuant
to subsection (c), (d), or (e) above; and (iv) Client has returned to Fiserv
all Fiserv Confidential Information if requested by Fiserv. Unless directed by
Client in writing to the contrary, Fiserv shall be permitted to destroy Client
Files any time after thirty (30) days from the final use of Client Files for
processing.
(g) Miscellaneous. Client understands and agrees that Client is
responsible for the deinstallation and return shipping of any Fiserv-owned
equipment located on Client's premises. Prior to termination of this
Agreement, Client shall promptly reimburse Fiserv for the cost of any
preprinted statements, checks, or any other forms that Fiserv has prepared
specifically for the Client and has on hand at the termination of this
Agreement.
13. Arbitration. (a) General. Except with respect to disputes arising
from a misappropriation or misuse of either party's proprietary rights, any
dispute or controversy arising out of this Agreement, or its interpretation,
shall be submitted to and resolved exclusively by arbitration under the rules
then prevailing of the American Arbitration Association, upon written notice of
demand for arbitration by the party seeking arbitration, setting forth the
specifics of the matter in controversy or the claim being made. The
arbitration shall be heard before an arbitrator mutually agreeable to Client
and Fiserv; provided, that if Client and Fiserv cannot agree on the choice of
an arbitrator within ten (10) days after the first party to seek arbitration
has given written notice, then the arbitration shall be heard by three
arbitrators, one to be chosen by Client, one to be chosen by Fiserv, and the
third to be chosen by those two arbitrators. A hearing on the merits of all
claims for which arbitration is sought by either party shall be commenced not
later than sixty (60) days from the date demand for arbitration is made by the
first party seeking arbitration. The arbitrator(s) must render a decision
within ten (10) days after the conclusion of such hearing. Any award in such
arbitration shall be final and binding upon the parties, and the judgment
thereon may be entered in any court of competent jurisdiction.
(b) Applicable Law. The arbitration shall be governed by the United
States Arbitration Act, 9 U.S.C. 1-16. The arbitrators shall apply the
substantive law of the State of Wisconsin, without reference to provisions
relating to conflict of laws. The arbitrators shall not have the power to
alter, modify, amend, add to, or subtract from any term or provision of this
Agreement, nor to rule upon or grant any extension, renewal, or continuance of
this Agreement. The arbitrators shall have the authority to grant any legal
remedy available had the parties submitted the dispute to a judicial
proceeding.
(c) Situs. If arbitration is required to resolve any disputes between the
parties, the proceedings to resolve the first such dispute shall be held in
Grand Rapids, Michigan, the proceedings to resolve the second such dispute
shall be held in Milwaukee, Wisconsin, and the proceedings to resolve any
subsequent disputes shall alternate between Milwaukee, Wisconsin and GRAND
RAPIDS, MICHIGAN.
14. Insurance. Fiserv carries the following types of insurance policies
written by a carrier or carriers rated "A" or above by Best:
(i) Comprehensive General Liability in an amount not less than $1
million per occurrence for
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claims arising out of bodily injury and property damage;
(ii) Commercial Crime covering employee dishonesty in an amount not
less than $5 million;
(iii) All-risk property coverage including Extra Expense and
Business Income coverage; and
(iv) Workers Compensation as mandated or allowed by the laws of the
state in which the services are being performed, including $500,000
coverage for Employer's Liability.
15. Audit. Fiserv employs an internal auditor responsible for ensuring
the integrity of its data processing environments and internal controls. In
addition, Fiserv provides for periodic independent audits of its operations.
Fiserv shall provide Client with a copy of the audit of the Fiserv data center
serving Client within a reasonable time after its completion and shall charge
each client a fee based on the pro rata cost of such audit. Fiserv shall also
provide a copy of such audit to the appropriate regulatory agencies, if any,
having jurisdiction over Fiserv's provision of Services hereunder.
16. General. (a) Binding Agreement. This Agreement is binding upon the
parties and their respective successors and permitted assigns. Neither this
Agreement nor any interest may be sold, assigned, transferred, pledged or
otherwise disposed of by Client, without the prior written consent of Fiserv.
Client agrees that Fiserv may subcontract any of the Services to be performed
under this Agreement. Any such subcontractors shall be required to comply with
all of the applicable terms and conditions of this Agreement.
(b) Entire Agreement. This Agreement, including its Exhibits, which are
expressly incorporated herein by reference, constitutes the complete and
exclusive statement of the agreement between the parties as to the subject
matter hereof and supersedes all previous agreements with respect thereto.
Modifications of this Agreement must be in writing and signed by duly
authorized representatives of the parties. Each party hereby acknowledges that
it has not entered into this Agreement in reliance upon any representation made
by the other party not embodied herein. In the event any of the provisions of
any Exhibit or Schedule hereto are in conflict with any of the provisions of
this Agreement, the terms and provisions of this Agreement shall control unless
the Exhibit or Schedule in question expressly provides that its terms and
provisions shall control.
(c) Severability. If any provision of this Agreement is held to be
unenforceable or invalid, the other provisions shall continue in full force
and effect.
(d) Governing Law. This Agreement will be governed by the substantive
laws of the State of Wisconsin, without reference to provisions relating to
conflict of laws.
By entering into this Agreement, Fiserv agrees that the Office of Thrift
Supervision, FDIC, or other regulatory agencies having authority over Client's
operations shall have the authority and responsibility provided to the
regulatory agencies pursuant to the Bank Service Corporation Act, 12 U.S.C.
1867(C) relating to services performed by contract or otherwise.
(e) Force Majeure. Neither party shall be responsible for delays or
failures in performance resulting from acts reasonably beyond the control of
that party.
(f) Notices. Any written notice required or permitted to be given
hereunder shall be given by: (i) Registered or Certified Mail, Return Receipt
Requested, postage prepaid; (ii) by confirmed facsimile; or (iii) by nationally
recognized courier service to the other party at the addresses listed on the
cover page of this Agreement or to such other address or person as a party may
designate in writing.
(g) No Waiver. The failure of either party to insist on strict
performance of any of the provisions hereunder shall not be construed as the
waiver of any subsequent default of a similar nature.
(h) Financial Statements. Fiserv shall provide Client and the appropriate
regulatory agencies who so require a copy of Fiserv, Inc.'s audited
consolidated financial statements.
(i) Prevailing Party. The prevailing party in any arbitration, suit, or
action brought against the other party to enforce the terms of this Agreement
or any rights or obligations hereunder, shall be entitled to receive its
reasonable costs, expenses, and attorneys' fees of bringing such arbitration,
suit, or action.
(j) Survival. All rights and obligations of the parties under this
Agreement that, by their nature, do not terminate with the expiration or
termination of this Agreement shall survive the expiration or termination of
this Agreement.
8
9
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date indicated below.
For Client: For Fiserv
Mercantile Bank of West Michigan FISERV SOLUTIONS, INC.
---------------------------------------------------------
a Michigan Banking Corporation in Formation by d/b/a FISERV Brookfield
--------------------------------------------------------- -------------------------
Mercantile Bank Corporation
---------------------------------------------------------
By: /s/ Xxxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxxx X. Serti
----------------------------------------------------- -------------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx. Name: Xxxxx X. Serti
--------------------------------------------------- -----------------------------------------------------
Title: Senior Vice President Title: Senior Vice President
-------------------------------------------------- ----------------------------------------------------
Date: 9/11/97 Date: 9/15/97
--------------------------------------------------- -----------------------------------------------------
9
10
Exhibit A
Account Processing Services
Client agrees with Fiserv as follows:
1. Services. Fiserv will provide Client the Account Processing Services
(the "Account Processing Services") specified in Exhibit A - 1 hereto.
2. Fees. Client shall pay Fiserv the fees and other charges for the
Account Processing Services specified in Exhibit A - 2 hereto.
3. Reconstruction of Error Conditions. Reconstruction of error
conditions attributable to Client or to third parties acting on Client's behalf
will be done at prevailing rates as set forth in Exhibit A - 2.
4. Annual Histories. Fiserv currently maintains annual histories, where
applicable, for each of its Clients. These histories can be used to
reconstruct Client files in an emergency. However, in order to permit prompt
and accurate reconstruction of accounts, Client agrees to retain at all times
and make available to Fiserv upon request, the most recent data printout(s)
received from Fiserv, together with copies or other accurate and retrievable
records of all transactions to be reflected on the next consecutive
printout(s).
5. Hours of Operation. The Account Processing Services will be available
for use by Client during standard Fiserv business hours, excluding company
holidays, as specified in Exhibit A - 3 hereto. The Account Processing
Services may be available during additional hours, during which time Client may
use the Services at its option and subject to additional charges.
6. Software Modifications. (a) Custom Programming. Fiserv will develop
a preliminary estimate of the anticipated man hours and costs plus or minus
fifty (50) percent associated with the implementation of said change. This
estimate will be returned to Client within four (4) weeks. Written acceptance
by Client to proceed with the project will be required prior to beginning the
final specifications. Fiserv will assign a projected completion date to the
project, provided no additional changes or modifications to the original
specifications occur once the project is in development.
(b) Regulatory Software Changes. Software changes required by government
bodies will be quoted in accordance with subsection (a) above and such costs
will be distributed to all data center clients on an equitable basis.
(c) Major Software Enhancements. All major software enhancements will be
subject to additional charges for processing and development in accordance with
Exhibit A - 2 hereto. Fiserv is under no obligation to upgrade its software
during the term of this Agreement.
7. Protection of Data. For the purpose of compliance with applicable
government regulations, Fiserv has developed an operations backup center, for
which Client has agreed to pay the charges indicated in Exhibit A - 2. Fiserv
tests the procedure periodically to ensure the data center's compliance.
Copies of transaction files are maintained by Fiserv off premises in secured
vaults.
8. Processing Priority. Fiserv does not subscribe to any processing
priority; all users receive equal processing consideration.
9. On-Line Security. Fiserv provides "on-line" security via utilization
of leased lines with poll/select protocol.
10. Forms and Supplies. Client assumes and will pay the charges for all
customized forms, supplies, and delivery charges.
1
11
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit A to the
Agreement to be executed by their duly authorized representatives as of the
date indicated below.
For Client: For Fiserv
Mercantile Bank of West Michigan FISERV SOLUTIONS, INC.
---------------------------------------------------------
a Michigan Banking Corporation in Formation by d/b/a FISERV Brookfield
--------------------------------------------------------- -------------------------
Mercantile Bank Corporation
---------------------------------------------------------
By: /s/ Xxxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxxx X. Serti
----------------------------------------------------- -------------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx. Name: Xxxxx X. Serti
--------------------------------------------------- -----------------------------------------------------
Title: Senior Vice President Title: Senior Vice President
-------------------------------------------------- ----------------------------------------------------
Date: 9/11/97 Date: 9/15/97
--------------------------------------------------- -----------------------------------------------------
2
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EXHIBIT A - 1
Account Processing Services
Fiserv will provide Client with the following Account Processing Services:
Fiserv shall provide data processing services for the Client with software
modules selected by the Client from Information Technology, Inc. This package
includes:
Customer Information System
Demand Deposit Accounts
Savings
Club Accounts
Loans - all types
Certificates of Deposit
General Ledger
ACH (receiving) processing
Express Exception Item Module
Online Loans Collection System
Remote Print
Optical Laser Retrieval ** (Report Archive only)
ATM Processing (Depending upon ATM Switch Selected)
Federal Call reporting
Currency Transaction System
Retirement Accounting
Automated Collateral Insurance Module
Automated Credit Reporting
Premier Reference System
Loan Origination Interface
Interactive Deposit Interface
Loan Custodial
ALM II
Safe Deposit Accounting (CIS Application)
Smart Reports (ADHOC Reports) (5 per month)
Premier II
3
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EXHIBIT A - 2
Account Processing Services Fees
Fiserv will provide Client the following Account Processing Services at the
fees and prices indicated:
Client agrees to pay Fiserv for the services rendered by Fiserv as identified
in Exhibit A-1 pursuant to this agreement and in accordance with the rates
outlined in this Schedule.
1. Charges for Services
A. Monthly Processing Fees are based upon the actual number of open and
closed application accounts.
B. The monthly processing fee for services as described in Exhibit A-1
will be as follows:
Number of Open and Closed Cost Per
Loan and Deposit Accounts Account
------------------------- --------
0 - 4,000 $.85
4,000 - 8,000 $.80
8,000 - 12,000 $.70
12,000 and over $.65
C. The minimum monthly fees for services as described in Exhibit A-1 are as
follows:
Month 1 - 6 $ 750
Months 7 - 12 $1,500
Months 13 - 24 $2,000
Months 25 & beyond $2,500
D. ACH Charges - $.05 per transaction
E. ATM Charges - $.05 per Transaction ($500/month minimum)
F. Smart Reports in excess of amount stated in Exhibit A-1 - $50.00 each
G. PCBanc and ExecuBanc require the installation of dedicated communication
servers to provide a secure path to the host system for your customers.
This is not included in the above monthly cost.
H. There will be no price increases for the first two years of service.
Any price increases beyond year two will be limited to CPI.
I. Unless specifically provided for all costs incurred for all third
party services, such as, but not limited to, forms, supplies, report
delivery, interface fees, and PC software and maintenance fees, shall
be in addition to the Monthly Processing Fees and shall be paid by
Client, either directly to respective third party service provider(s)
or via reimbursement to Fiserv for those third party services billed to
Fiserv on Client's behalf.
4
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EXHIBIT A - 2
2. Charges for Implementation of System
A. Product Definition
Deposits $700/day 5 days $ 3,500
Loans $700/day 4 days 2,800
General Ledger $700/day 1 day 700
Product Specifications
Review/Revision $700/day 4 days 2,800
Post-opening $700/day 5 days/2 from Fiserv onsite 7,000
------------------------------------------------------------------------------
Total Fiserv Costs $16,800
B. Payment of the above charges can be spread over the initial term of
the data processing agreement (5 years) with 50% paid at conversion.
C. Travel and out-of-pocket expenses of bank employees and Fiserv
personnel will be the responsibility of the Client.
3. Training Charges
A. FIS1 $1,000 (up to 4 people) One Week - Fiserv/Atlanta
FIS2 $1,000 (up to 4 people) One Week - Fiserv/Atlanta
ITI preconversion training/Q&A $3,500 onsite 5 days optional
B. Training for additional bank personnel at Fiserv/Atlanta will be $350.00
per attendee, per week
4. Data Communication Charges
A. Fiserv will provide data communication for $600 per month based upon 6
online devices connected to local area network.
Monthly cost includes:
Frame Relay Service: Unit $ Monthly
-------------------- ------ -------
AT&T Frame Relay Access $282
Telco Installation
Network Support Services:
-------------------------
19 Terminals $22 418
Equipment:
----------
Router Maintenance $30 30
-------
TOTAL: $730
------
5
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EXHIBIT A - 2
B. One time cost for circuit installation, data communication equipment
and equipment installation will be $6,270.
One time charges include:
Frame Relay Service: Unit $ One Time
-------------------- ------ --------
AT&T Frame Relay Access $ 525
Telco Installation
Network Support Services:
-------------------------
19 Terminals 2,500
Equipment:
----------
1 CISCO 1602 Router $2,995 2,995
includes CSU
Router Installation $ 250 250
--------
TOTAL: $6,270
------
C. Included in A & B above are:
Main Office Link
56 KB Port
32 KB PVC to Data Center
Frame Relay TCP/IP (ITI System)
D. Not included in A & B above are:
LAN Hubs
Inside LAN Wiring
E. Additional software to be purchased by Client:
DCA Open Transport systems and TCP/IP Software
F. Additional Information
1) The addition of any of the four systems listed below may
alter the Data Communication configuration shown in A & B above and
therefore the monthly and/or one time cost.
a. Voice Response
b. ExecuBanc
c. PCBanc
d. ATM
2) Any changes in the data communication configuration as shown
in A & B above could alter the monthly and/or one time costs.
3) Third Party charges for frame relay service and maintenance
are subject to change.
4) Third Party interfaces may require DCA terminal emulation.
6
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EXHIBIT A - 2
4. Remote Printing System (Estimated Cost)
QTY. DESCRIPTION EACH
---- ----------- ------
1 Depcon Software $ 1,500
1 Remote Print PC; DTK Pentium 100, 1GB HD, 16 MBRam, 1.44 Floppy 1,868
Drive, PCI VGA, Keyboard, Mouse Kit, DOS, Windows Workgroup, 14"
SVGA Monitor, Surge Strip, Ethernet NIC
1 Infoconnect with Open Transport Module 595
1 HP Laser Xxx 0 XX, 00 XXX, 000 XXX, 00 XX Xxx, (0 Xx. Onsite 3,510
Warranty)
1 Duplex Accessory 525
1 2000 Sheet Input Tray for HP Laser Jet 5 SI 1,134
1 2000 Sheet Output Tray and Paper Hander 1,867
1 Depcon Onsite Installation, Configuration, Testing, Training 5,000
-------
TOTAL $15,999
Note: Annual Maintenance 12-14% of List
5. DECONVERSION CHARGES
Fiserv will charge deconversion fees in accordance with the following
schedule.
DECONVERSION TASK COST BASIS
----------------- ----------
TEST FILES .0175/ACCT/$200MIN/PER TAPE
LIVE DECONVERSION FILES .0175/ACCT/$200MIN/PER TAPE
DECONV REPORTS - TEST $300 PER FILE
DECONV REPORTS - LIVE $300 PER FILE
SV MONTH-TO DATE-HISTORY .01/ACCT/$100 MIN.
SV MTD HISTORY COPIES $50 PER COPY
SV ANNUAL HISTORY REPORTS .01/ACCT/$100 MIN.
SV TRIAL BALANCE REPORT .01/ACCT/$100 MIN.
SV TRIAL COPIES $50 PER COPY
SV STATEMENTS 3 HRS. PROG.+.05/ACCT ($75 MIN)
SV NEW ACCOUNT REPORT $75 + $50 PER COPY
SV CLOSED ACCOUNT REPORT $75 + $50 PER COPY
SV DORMANT ACCOUNT REPORT $75 + $50 PER COPY
SV ACCRUALS UPDATED ADS003 (MASS CHANGE) CHARGE OF $400 PER PASS
RRM SUMMARY STATEMENTS .10/ACCT, $100 MIN.
RRM STATEMENTS COPIES $75 + $50 PER COPY
RRM PLAN TRIAL .01/ACCT/$100 MIN.
DDA TRIAL BALANCE REPORT $50 PER COPY
DDA STATEMENTS 3 HRS PROG + .05/ACCT ($75 MIN)
DDA SERVICE CHARGES WAIVED 3 HRS. PROGRAMMING
LAS MONTH TO DATE HISTORY .01/ACCT/$100 MIN.
LAS MTD HISTORY COPIES $50 PER COPY
LAS ANNUAL HISTORY REPORT .01/ACCT/$100 MIN.
7
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EXHIBIT A-2
LAS ML ANNUAL HISTORY COPIES $50 PER COPY
LAS TRIAL BALANCE REPORT .01/ACCT/$100 MIN.
LAS TRIAL COPIES $50 PER COPY
LAS HISTORY STATEMENTS .15/ACCT/$75 MIN.
LAS STATEMENTS COPIES $50 PER COPY
LAS ESCROW POSTING 6 HRS PROG. + $50/COPY
LAS ACCRUED INTEREST REPORT $75 + $50 PER COPY
INVESTOR CYCLE REPORTS ADS003 CHARGE + $50/COPY
FMS MONTH TO DATE HISTORY $150 CHARGE + $50/COPY
FMS CHART OF ACCOUNTS $50 PER COPY
CIS NAME AND ADDRESS REPORT .01/ACCT/$100 MIN.
RELEASE AND POST WAREHOUSED ACH 4 HRS. PROG. + $100 PER RUN
CLOSE SAV ACCOUNTS 15 HOURS PROGRAMMING
CLOSE RRM ACCOUNTS 15 HOURS PROGRAMMING
PURGE EFT ACCOUNTS 9 HOURS PROGRAMMING
CLOSE DDA ACCOUNTS 15 HOURS PROGRAMMING
CLOS4E LAS ACCOUNTS 15 HOURS PROGRAMMING
PURGE CIS FILES 15 HOURS PROGRAMMING
PURGE FMS ACCOUNTS 15 HOURS PROGRAMMING
DEBIT CARD FILES .01/ACCT/$100 MIN.
DEBIT CARD TRIAL BALANCE $50 PER COPY
DATACOMM REMOVED $110/HOUR
PROJECT COORDINATION $110/HOUR
OPERATIONS/CONVERSIONS $110/HOUR
CPU HOUR $200/HOUR
PROGRAMMING PER HOUR $65/HOUR
MAN-HOURS
---------
Test Files 1 hour per file
Live Files 1 hour per file
Cut-off processing 5 hours per application
Close accounts 5 hours per application
Purge Files 5 hours per application
Deconversion jobflows, scheduling Actual operations time to remove
Project Management Actual P.M. time
Datacomm disconnected Actual time to remove datacomm
8
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EXHIBIT A - 3
Hours of Operation
The Fiserv Data Center will be in operation for On-Line Accounting Applications
(as defined in Exhibit A - 1) in accordance with the following schedule central
time zone:
Monday 7:00 A.M. - 8:00 P.M.
Tuesday 7:00 A.M. - 8:00 P.M.
Wednesday 7:00 A.M. - 8:00 P.M.
Thursday 7:00 A.M. - 8:00 P.M.
Friday 7:00 A.M. - 8:00 P.M.
Saturday 7:00 A.M. - 5:00 P.M.
The Fiserv Data Center will observe national holidays, and will be closed for
on-line operations.
9
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EXHIBIT B
Performance Standards
(a) Fiserv's standard for on-line performance ("On-Line Performance") shall be
on-line availability of the computer (exclusive of telecommunications and
terminals) for processing 98% of the time that it is scheduled to be so
available over a three (3) month period (the "Measurement Period"). The
Measurement Period shall be defined as calendar quarters during the term of
this Agreement. Actual on-line performance will be calculated monthly by
comparing (i) the number of hours which the computer, but not the terminals or
telecommunications, was scheduled to be operational on an on-line basis
exclusive of any emergency maintenance other than preventive maintenance and
scheduled maintenance beyond the control of Fiserv, with (ii) the number of
hours, or a portion thereof, it was actually operational on an on-line basis
during the Measurement Period.
(1) Definitions:
(i) "On-line Servicing hours" shall mean the total elapsed "Service
Time" wall clock time in which the computers are available for
on-line service to all clients.
(ii) "Service Time" shall mean:
Monday thru Thursday 7:00 AM thru 8:00 PM CST Time
Friday 7:00 AM thru 8:00 PM CST Time
Saturday 7:00 AM thru 5:00 PM CST Time
Exclusive of: New Year's Day, Labor Day, Memorial Day, Thanksgiving,
Independence Day and Christmas.
(2) Measurements: Fiserv's Data Center will log and retain a record of
downtime maintaining appropriate analytical reports. Downtime reports will
be tabulated monthly and provided at Client's request. Client agrees to
provide written acknowledgment of each report received.
(3) Exclusions: Downtime due to acts or omissions of Client or third
parties, not subject to control or direction by Fiserv; hardware malfunction
or failure; and failure to meet the standard for performance for reasons
beyond Fiserv's control.
(b) Fiserv's standard performance for Delivery of scheduled Critical Daily
reports shall be that, over a "Measurement Period", 95% of all Critical Daily
Reports shall be delivered on time without significant errors. Performance
will be calculated by comparing (i) the total number of Critical Daily Reports
to be provided by Fiserv with (ii) the number of Critical Daily Reports that
were delivered by Fiserv on time without significant error. Fiserv shall
advise Client of the deadlines by which Client must provide data to Fiserv for
processing and the contents and format of such data. A detailed listing of all
Critical Daily Reports shall be incorporated into the implementation plan.
(1) Definitions:
(i) "Critical Daily Reports" shall mean priority group reports which
Fiserv and Client have mutually agreed in writing during the conversion
planning process and are necessary to properly account for the previous
day's activity and properly notify Client of overdraft, NSF, or return
items.
(ii) "Deliver" and "Delivery" of reports shall mean that, depending on
the method selected by Fiserv, the report is printed in hard copy where
printing is performed in-house by Fiserv; the report data is ready for
remote printing by Fiserv, to the Client site; or the report data is
ready for transmission by Fiserv to Client over the data lines designated
for that purpose.
(iii) "On Time" shall mean 7:00 AM CST time at Client's designated
central print site and is subject to change as may be mutually agreed
upon by both parties.
(iv) "Significant error" is one which impairs Client's ability to
properly account for the previous days activity and/or properly account
for overdraft, NSF or return items.
(2) Measurements: Client shall notify Fiserv on a daily basis of any late
Delivery, non-Delivery and significant errors and shall identify all claimed
errors for review. On a monthly basis, Fiserv and Client shall compile a
written performance analysis, if requested by either party.
(3) Exclusions: Special request of special cycle items; reports that are
Delivered late, not Delivered or contain errors due to acts or omissions of
Client or third parties, not subject to control or direction by Fiserv;
hardware malfunction or failure; and failure to meet the standard for
performance due to reasons beyond Fiserv's control.
(c) Fiserv's standard for response time performance ("Response Time
Performance") shall be the average total time taken for the central processor
to receive a transaction from the Data Center telecommunications controller,
process that transaction, and return the answer to such advice. Such average
total response time, as determined by Fiserv from measurements taken over a
1
20
EXHIBIT B
three (3) month period ("the measurement period") shall be two (2) seconds
or less.
(1) Definitions: "Transaction" shall mean basic deposit, withdrawal, and
single application inquiry transactions.
(2) Measurements: Fiserv's Data Center will log and retain a record of
response time maintaining appropriate analytical reports. Response time
reports will be tabulated monthly and provided to Client at Client's
request. Client agrees to provide written acknowledgment of each report
received.
(3) Exclusions: Downtime due to acts of omissions of the Client or third
parties, not subject to control or direction by Fiserv; hardware malfunction
or failure to meet the standard performance for reasons beyond Fiserv's
control.
(d) Exclusive Remedy
In the event that Fiserv's performance is less than the
percentage/standard specified in "Service Performance Standards" above
and such failure is not the result of a Client error or omission, or of
any other event specified in the applicable "EXCLUSIONS", Client shall
notify Fiserv immediately in writing specifying the Service Performance
Standard(s) not met and the nature of the deficiency. Within thirty (30)
days of receipt of the foregoing notice Fiserv shall establish an action
plan to meet the Performance Standard(s) and shall communicate same to
Client. Upon expiration of the thirty (30) day period Fiserv shall have
a period of sixty (60) days to measure its performance and to bring its
performance to the percentage/standard specified in the relevant Service
Performance Standard, and Fiserv shall advise Client of its performance
at the end of said period. Should Fiserv's performance be below the
Standard at that time Client may terminate this Agreement by giving
Fiserv written notice of termination. Client may also terminate this
Agreement if Fiserv's performance for the same standard is below that
relevant service performance standard for more than two (2) measurement
periods in any twelve (12) month period or for more than five measurement
periods during the term of this Agreement by giving Fiserv written notice
of termination. Termination shall be without penalty or any charge to
Client other than charges for service fees incurred prior to the
effective date of termination.
2
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EXHIBIT B
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit B to the
Agreement to be executed by their duly authorized representatives as of the
date indicated below.
For Client: For Fiserv
Mercantile Bank of West Michigan FISERV SOLUTIONS, INC.
---------------------------------------------------------
a Michigan Banking Corporation in Formation by d/b/a FISERV Brookfield
--------------------------------------------------------- -------------------------
Mercantile Bank Corporation
---------------------------------------------------------
By: /s/ Xxxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxxx X. Serti
----------------------------------------------------- -------------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx. Name: Xxxxx X. Serti
--------------------------------------------------- -----------------------------------------------------
Title: Senior Vice President Title: Senior Vice President
-------------------------------------------------- ----------------------------------------------------
Date: 9/11/97 Date: 9/15/97
--------------------------------------------------- -----------------------------------------------------
