EXHIBIT (10.28)
SERVICE BUREAU PROCESSING AGREEMENT
BY AND BETWEEN
ALLTEL INFORMATION SERVICES, INC.
AND
HERITAGE OAKS BANK
AUGUST 1, 1999
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This is a Service Bureau Agreement (the "Agreement"), dated as of the 1st day of
August, 1999, (the "Effective Date"), by and between ALLTEL INFORMATION
SERVICES, INC., an Arkansas corporation having its principal place of business
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("ALLTEL
Information"), and HERITAGE OAKS BANK, a (State of California) corporation,
having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("Client").
WHEREAS, ALLTEL Information provides data processing services to
multiple clients, and Client desires to obtain such data processing services
from ALLTEL Information;
NOW, THEREFORE, in consideration of the payments to be made and
services to be performed hereunder, the parties agree as follows:
1. SERVICES. ALLTEL Information shall provide the data processing software and
services ("Services") outlined throughout this Agreement, and such additional
services as may be added by the parties from time to time pursuant to a written
amendment to this Agreement. Services shall be provided in accordance with
applicable ALLTEL Information user and operation manuals, bulletins, guidelines,
procedures, policies and similar materials, as established and revised from time
to time. ALLTEL will provide the software maintenance required to cause the
HORIZON BANKING SYSTEM software to operate according to ALLTEL's most current
documentation. ALLTEL Information shall process MICR Data, Statistical Data,
records, and all other input furnished to ALLTEL Information (collectively,
"Data") and shall prepare and make available for pick-up by Client, in
accordance with such procedures and schedules established by ALLTEL Information
documents, reports, customer statements and other output (collectively,
"Output"). The method of delivery of reports is specified in Exhibit A, and a
request from Client to change such method must be received by ALLTEL Information
at least sixty (60) days prior to the requested change date. Any fees or charges
resulting from such change shall be in accordance with ALLTEL Information's then
prevailing fee schedule.
For purposes of this Agreement, it is understood that any times that are listed
are for Pacific Standard Time (PST).
2. DATA.
2.1 FORM. Data shall be delivered by messenger or electronic
transmission to ALLTEL Information at its facility as designated by ALLTEL
Information, or such other agreed delivery location, at the times and in the
form prescribed by ALLTEL Information. ALLTEL Information shall not be liable
for the accuracy, completeness and authenticity of Data furnished to ALLTEL
Information by Client, a Federal Reserve Bank, an Automated Clearing House, or
any other third party, and shall have no obligation or responsibility to audit,
check or verify the
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Data. Client shall be solely responsible for determining the correctness of
magnetic ink encoding on items submitted for Client's payment, including but
not limited to checks and drafts ("Items"); for verifying dates, signatures,
amounts, endorsements, authorizations, payment notices, collection times,
fees and charges to Client's customers and all other similar matters on Data
submitted for processing, including Items; and for placing stop payments and
holds on accounts.
2.2 MICR DATA. MICR Data as used in this Agreement refers to the
magnetically encoded information on Items, or if Client captures its own MICR
Data, to the Data submitted to ALLTEL Information from Client which is derived
from magnetically encoded information on Items. If Client captures its own MICR
Data, Client shall electronically transmit MICR Data to ALLTEL Information, and
shall identify MICR Data as to description and amounts with verification as to
the total of all amounts set forth. In the event of an emergency, ALLTEL
Information may, in its sole discretion, accept MICR Data on magnetic tape. MICR
Data shall be delivered to ALLTEL Information each ALLTEL Information business
day. The method of delivery of MICR Data to ALLTEL Information is specified in
Exhibit A. If the method of delivery is one of Electronic Data Transmission
(EDT), then Exhibit D (Electronic Data Transmission Addendum) shall be
applicable.
MICR Data delivered by messenger must be received by ALLTEL
Information at its facility, or other agreed delivery location, no later than
8:00 p.m. on Mondays through Thursdays and 10:00 p.m. on Fridays; MICR Data
transmitted electronically must be received by ALLTEL Information at its
facility no later than 10:00 p.m. on Mondays through Thursdays and 11:00 p.m. on
Fridays. Client's request to change the method of delivery of MICR Data must be
received by ALLTEL Information at least sixty (60) days prior to the requested
change date. Any fees or charges due to such request shall be in accordance with
ALLTEL Information's then prevailing fee schedule.
2.3 STATISTICAL DATA. All Statistical Data, including but not limited
to changes to customer accounts, shall be transmitted electronically from
Client's administrative terminal to ALLTEL Information's facility. All
Statistical Data must be received by ALLTEL Information at its facility no later
than 6:00 p.m. on Mondays through Thursdays and 7:00 p.m. on Fridays.
2.4 EFT DATA. EFT Data as used in this Agreement refers to any Data
(input or output) that goes through the Automated Clearing House (ACH). All EFT
Data must be received by ALLTEL Information at its facility no later than 6:00
p.m. on Mondays through Thursdays and 7:00 p.m. on Fridays. If EFT Data is one
of the inputs/outputs used by the Client then Exhibit E (Electronic Funds
Transfer Addendum) shall be applicable.
3. PROCESSING. ALLTEL Information shall follow such procedures and time
schedules as it may deem appropriate in processing Data and posting entries on
behalf of Client. ALLTEL Information is authorized to create and process such
entries, including but not limited to adjusting or correcting entries, as it
deems necessary or appropriate to process the Data. It shall be Client's sole
responsibility to effect a timely return of any Item, or to pursue any claim or
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right of action in a timely manner against any third party arising from such
Item. If Data is received by ALLTEL Information prior to the time limits
required by this Agreement, ALLTEL Information may process such Data
immediately. If ALLTEL Information receives Data after the time limits
required by this Agreement, or Data is delivered by any method other than
that indicated in this Agreement or agreed to in writing by the parties,
ALLTEL Information may delay the processing of such Data. However, if ALLTEL
Information does process such Data, Client shall pay any additional fees and
charges required by ALLTEL Information.
4. CONVERSION AND COMMENCEMENT. ALLTEL Information shall provide reasonable
assistance to Client during its conversion to ALLTEL Information's electronic
data processing system used in connection with the Services. Initial training of
Client's Trainers as well as one set of Manuals for the Services will be
provided to Client at no additional charge. Any additional training or Manuals
requested by Client will be charged at ALLTEL Information's then prevailing
rates. The Commencement Date for Services is the earliest date that conversion
to ALLTEL Information's electronic data processing system is completed for any
one of the Services.
4.1 TRAVEL AND EXPENSES. Client shall reimburse ALLTEL Information for
all reasonable travel and expenses related to the performance of any conversion
or special project requested by the Client. This would include the initial
conversion to the ALLTEL Information's electronic data processing system as well
as any other special project that would result in extra travel and expenses
being incurred.
5. FEES
5.1 FEES TO ALLTEL Client shall pay to ALLTEL Information for the
Services provided hereunder, and for any additional services which are added to
this Agreement, the fees specified on the Schedules of Fees For Contracted
Services which are designated in Attachment 1. Method of payment is specified in
Exhibit A. Any amount not received within fifteen (15) days after the payment
due date by ALLTEL Information shall bear interest at the rate of eighteen
percent (18%) per annum until paid. However, if any amount is not paid when due,
ALLTEL Information may, at its option, immediately suspend performance hereunder
until payment is made, in addition to any other rights or remedies provided to
ALLTEL Information by this Agreement or applicable law.
5.2 ADJUSTMENT OF FEES. The fees payable each year shall be adjusted
annually during the month in which the anniversary of the Commencement Date for
Services ("Adjustment Date") falls, as follows. Fees shall be increased, but not
decreased, by the amount of the increase in the Consumer Price Index for All
Urban Consumers Other Goods and Services (the "CPI-U") as published by the U.S.
Department of Labor, Bureau of Labor Statistics for the month of December
preceding the Adjustment Date over the Index for the month of December in the
immediately preceding year. If additional Services are added to the Agreement,
the fees shall be adjusted on such Adjustment Date in accordance with this
Section. In no event shall the adjusted fee for any Service be less than the fee
for that Service before
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such adjustment. In the event the Index is unavailable in time to allow the
adjustment to be made on the Adjustment Date, Client shall continue to pay
the then current fees for the Services until the Index is made public, at
which time the adjustment shall be calculated retroactively to the Adjustment
Date, and Client shall immediately pay to ALLTEL Information any difference
between the fees actually paid and adjusted fees. The adjustments shall be
compounded and cumulative. In the event the CPI-U is discontinued or revised
during the term of this Agreement and any extensions hereof, ALLTEL
Information shall select another governmental index or computation as a
substitute CPI-U in order to obtain substantially the same result as if the
Index had not been discontinued or revised.
5.3 PAYMENT OF ONE-TIME FEES. Client shall pay to ALLTEL Information
any one-time fees specified on the Schedules of Fees For Contracted Services
which are designated in Attachment 1 of this Agreement, and for any additional
services which are added to this Agreement. Method of payment is specified in
Exhibit A. The one-time fees shall be due in the following manner. Fifty percent
(50%) due upon signing of this Agreement. The remaining fifty percent (50%) will
be due upon implementation of the initial conversion or the completion of the
contracted service.
6. TAXES. Client shall pay to ALLTEL Information an amount equal to any
applicable taxes or other governmental charges of any kind, however designated,
levied or based upon or relating to the transactions contemplated by this
Agreement, including any taxes that may be imposed on the use of any hardware,
software, programs, supplies or operating systems utilized under this Agreement,
except taxes based on ALLTEL Information's net income.
7. REPROCESSING. If any Data submitted to ALLTEL Information is incorrect,
incomplete or not in the format required, ALLTEL Information, may require Client
to resubmit the Data or ALLTEL Information may correct and complete the Data
itself, and Client agrees to pay additional fees and charges for any additional
work incurred by ALLTEL Information in connection therewith. In addition, any
reprocessing required because of incorrect or incomplete Data shall be at
Client's expense, in accordance with the fee for such Service then in effect.
ALLTEL Information shall attempt to notify Client prior to incurring any
expenses for which Client would be liable under this Article.
8. RISK OF LOSS DURING TRANSIT OR TRANSMISSION
8.1 ELECTRONIC TRANSMISSION. Client shall obtain, maintain and operate
at its own expense, all necessary devices, software and services required for
the electronic transmission of Data and, if applicable, the electronic reception
of Output, including but not limited to hardware, software, installation,
maintenance and telephone lines. Notwithstanding the foregoing, any
communication devices (modems) must meet the requirements of ALLTEL Information.
Exhibit D (Electronic Data Transmission Addendum) shall apply to all aspects of
electronic transmissions.
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8.2 MESSENGER. Client shall be solely responsible for and shall bear
all costs associated with having a messenger service transport Data, Output or
any other information relating to Client or the Services to or from ALLTEL
Information's facility or other delivery location. The messenger of all such
material shall be deemed to be the agent of Client. For purposes of this
Agreement, unless noted otherwise, the delivery location will be ALLTEL
Information Services, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
8.3 LIMITATION. ALLTEL INFORMATION SHALL NOT BE LIABLE OR RESPONSIBLE
FOR ANY LOSS OR DELAY OF DATA, OUTPUT OR ANY OTHER INFORMATION WHICH PERTAINS TO
CLIENT OR THE SERVICES DURING ANY PERIOD OF TRANSIT OR ELECTRONIC TRANSMISSION
TO OR FROM ALLTEL INFORMATION'S FACILITY OR OTHER AGREED DELIVERY LOCATION,
REGARDLESS OF THE CAUSE OF SUCH DELAY OR LOSS.
9. PRINTING. Client shall be responsible to receive electronically all output
for print. ALLTEL Information will provide such output in a hard copy, micro
fiche, or optical form for the then current fees associated with such services.
Client will furnish, at its own expense, all forms/paper for printing.
10. CLIENT REVIEW. It shall be Client's responsibility to review, verify
and make a final audit of all Output.
11. TERM, TERMINATION AND RENEWAL.
11.1 TERM. This Agreement shall commence on the effective date
hereof and shall expire four (4) years after the Commencement Date for
Services ("Term"), unless terminated pursuant to Paragraph 11.2. The
Commencement Date for Services for a renewal Term shall be the day
immediately following the last day of the preceding Term. Not less than two
hundred seventy (270) days prior to the expiration of the then current Term,
ALLTEL Information may provide to Client a renewal agreement for the
continuation of processing services hereunder and, if such renewal agreement
is provided by ALLTEL Information, Client will promptly review such agreement
and commence negotiations with ALLTEL Information, if necessary, and accept
or reject the agreement within one hundred eighty (180) days prior to
expiration of the then current Term.
11.2 TERMINATION. Either party may terminate this Agreement at any time
during the Term or any renewal Term upon one hundred eighty (180) days prior
written notice. If this Agreement is terminated by Client effective prior to the
then current Term, Client shall pay to ALLTEL Information, in addition to any
accrued fees and charges, a termination fee which is equal to fifty percent
(50%) of the remaining contract value. Contract value being calculated as
follows: Average monthly amount of last six (6) months of service multiplied by
the number of months remaining in the Term of this Agreement. The parties
acknowledge and agree that such fee is reasonable in light of the harm caused by
such termination; that the loss suffered by ALLTEL Information would be
difficult to prove; and that it would be inconvenient or
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unfeasible for ALLTEL Information to obtain an adequate remedy otherwise.
This termination fee is due and payable within sixty (60) days of notice of
termination. The described termination fee is exclusive of any fees
associated with deconversion activities. The deconversion fees are outlined
in Exhibit C of this Agreement.
11.3 EXTENDED SERVICES. Any Services that are provided to Client after
the expiration or termination of this Agreement, for which a written agreement
has not been entered into by the parties, shall be provided on a month-to-month
basis, and are subject to the terms and conditions of this Agreement, except
that the fees for such Services shall be one hundred twenty five percent (125%)
of the current prevailing ALLTEL Information fee schedule.
12. RETENTION OF DATA. With respect to any other Data, unless directed by Client
to the contrary, ALLTEL Information may destroy the Data and other materials of
Client at any time after the final use by ALLTEL Information of such Data and
materials for processing. Pursuant to Client's written request, which must be
received by ALLTEL Information within thirty (30) days after the termination or
expiration of this Agreement, ALLTEL Information will furnish to Client, at
ALLTEL's then current charges, copies of Client's data files and layouts as may
be maintained by ALLTEL Information from time to time. In the absence of such
notice by Client, ALLTEL Information may dispose of or destroy such material at
ALLTEL Information's discretion. However, notwithstanding any other provision in
this Agreement, ALLTEL Information may retain any materials of Client, including
but not limited to Data, Reports and data files, until all fees, interest and
other charges payable hereunder have been paid in full.
13. FORCE MAJEURE AND LIMITATION OF LIABILITY.
13.1 FORCE MAJEURE. ALLTEL Information shall not be liable for any
loss, expense, error or delay, including but not limited to delays in processing
of Data or delivery of Output or Items to Client, or any inability to provide
Services hereunder, caused by accidents, strikes, fire, electrical or mechanical
failures, non-ALLTEL software defects, acts or omissions of third parties
(including but not limited to acts or omissions of any third party service
provider or equipment vendor, messenger service or telephone carrier), acts of
God or any other causes or conditions which are beyond ALLTEL Information's
reasonable control.
13.2 LIMITATION OF LIABILITY. As a condition precedent to any liability
of ALLTEL Information, Client must notify ALLTEL Information in writing of any
alleged negligence or breach of this Agreement as promptly as reasonably
possible, but in no event later than five (5) business days following the day on
which such alleged negligence or breach was, or could reasonably have been,
discovered by Client. ALLTEL INFORMATION'S LIABILITY, IF ANY, ARISING OUT OF OR
IN ANY WAY RELATED TO ITS PERFORMANCE UNDER THIS AGREEMENT INCLUDING BUT NOT
LIMITED TO LIABILITY FOR PROCESSING ERRORS OR NEGLIGENCE, SHALL NOT EXCEED ITS
CHARGES DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE ALLEGED NEGLIGENCE
OR BREACH FOR THE PARTICULAR SERVICE TO WHICH CLIENT'S CLAIM PERTAINS. SUCH
MONEY DAMAGES SHALL BE CLIENT'S EXCLUSIVE REMEDY, AND IN NO
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EVENT MAY SPECIAL, GENERAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES BE
RECOVERED, EVEN IF ALLTEL INFORMATION HAS BEEN ADVISED OF THE POSSIBILITY
THEREOF. This Paragraph also limits the liability of any agent, employee or
affiliate of ALLTEL Information.
14. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
ALLTEL INFORMATION MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
15. INDEMNIFICATION. Client agrees to indemnify ALLTEL Information and hold it
harmless from and against any and all losses, liability, damages, claims,
demands, expenses, and attorney's fees (including an allocable share of the cost
of in-house counsel) which may be directly or indirectly caused by Client's
determination to pay or return any Item; (ii) Client's failure to return any
unpaid Items, or to provide notification thereof, to the Federal Reserve Bank
and/or other sources, in the manner and within the time limits specified by
applicable law; (iii) Client's failure to comply with any provision of this
Agreement; (iv) any error or omission in any data, information or instruction
furnished by Client; (v) ALLTEL Information's delay in providing, or failure to
provide, any Services hereunder if due to causes or conditions beyond ALLTEL
Information's reasonable control; or (vi) any unauthorized person gaining access
to, or any improper use of, information pertaining to Client or its customers,
including but not limited to account and loan data, which is made available to
Client or its customers pursuant to the Services, except if such unauthorized
access or improper use is caused solely by ALLTEL Information's negligence or
breach of its obligations hereunder.
16. CONTINGENCY PLAN. ALLTEL Information shall maintain contingency plans to be
used in the event ALLTEL Information's equipment or software used for the
Services is partially or completely disabled. Such plans include recovery
procedures and backup arrangements for equipment as determined solely by ALLTEL
Information. In any necessary recovery efforts, the Services shall receive the
same degree of priority as similar services performed for ALLTEL Information's
own operations. Client, however, shall remain solely responsible for its
contingency plan and maintaining adequate duplicate records of Data should file
reconstruction become necessary.
17. CONFIDENTIAL INFORMATION
17.1 OWNERSHIP. Subject to Article 12 of this Agreement, all Data,
Items, and Output are and shall remain the sole property of Client. All
Specifications, manuals, tapes, programs, user documentation and other materials
("Materials") developed by ALLTEL Information and furnished to Client by ALLTEL
Information in connection with this Agreement are and shall remain the sole
property of ALLTEL Information, unless agreed to otherwise in writing by the
parties.
17.2 CONFIDENTIALITY. ALLTEL Information acknowledges that the Data and
Output are the confidential information of Client, and Client acknowledges that
the Materials are the
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confidential information of ALLTEL Information. Each party agrees to use the
same standard of care for the other's confidential information that it would
use for its own similar confidential information, and Client agrees to use
the materials only for the functions and in the manner authorized by ALLTEL
Information. Confidential information shall not include information that is
in the public domain at the time of disclosure or is lawfully obtained from a
third party.
17.3 NON-DISCLOSURE OF TERMS OF CONTRACT. Client agrees to treat all
terms of this Agreement, including but not limited to all pricing terms, as
strictly confidential and shall not disclose or describe the terms hereof to any
other person or entity including but not limited to independent contractors and
agents of Client.
17.4 REMEDIES. Client agrees that the remedy at law for the breach of
any provision of this Article 17 may be inadequate and that ALLTEL Information
shall be entitled to injunctive relief without bond, in addition to any rights
or remedies which ALLTEL Information may have for such breach. The obligations
of Client and the rights of ALLTEL Information under any provision of this
Article 17 shall survive any termination of this Agreement.
18. AUDIT RECORDS Client shall be responsible for maintaining all necessary
audit records required by law or any regulatory authority having jurisdiction
over Client.
19. REGULATORY COMPLIANCE. To comply with the requests of applicable regulatory
authorities, ALLTEL Information agrees that Client's processing will have
priority over processing of ALLTEL Information's non-financial customers, if
any. ALLTEL Information will provide, at the prescribed times, all required
letters of assurance to the appropriate regulatory authorities. During the term
of this Agreement, ALLTEL Information agrees that ALLTEL Information's programs
will comply with the mandatory federal data processing output requirements
specified by the federal authorities applicable to Client. Client will make
ALLTEL aware of any applicable local or state regulatory requirements which have
requirements different than those of federal regulatory authorities. Any changes
required by such state or local requirements which ALLTEL Information agrees to
make shall be paid for by Client, and to the extent possible, ALLTEL Information
shall endeavor to obtain consents to share the costs of such charges required by
such state and local requirements among the ALLTEL Information clients affected.
20. MODIFICATIONS TO SYSTEM. ALLTEL Information may, from time to time, modify
any system utilized in providing the Services, with accompanying changes to the
applicable Documentation, to the extent deemed necessary by ALLTEL Information.
ALLTEL Information shall notify Client within a reasonable time (Not less than
30 days prior) of any such modification that affects Client's use of the
Services.
21. INSURANCE. A schedule of ALLTEL Information's current insurance
coverage has been furnished in Exhibit B.
22. AUDITOR'S REVIEW. A certified public accounting firm shall perform an
annual
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review of ALLTEL Information's computer facility. Client agrees that such
firm shall have sole authority and responsibility for such review. ALLTEL
Information will provide Client with a copy of the report for the fee set
forth in Attachment 1.
23. SECURITY. Client shall implement all necessary security procedures,
including but not limited to any security procedures required by ALLTEL
Information, with regards to the Services. Client acknowledges that Client is
fully responsible for security at its facilities, and that ALLTEL Information
has NO control over the security of the terminals located at Client's facilities
or those individuals accessing information through those terminals. Client
assumes full responsibility for any unauthorized persons utilizing such
terminals or for the unauthorized use of any information obtained therefrom.
Client hereby expressly waives any claim against ALLTEL Information arising out
of a breach of those terminals.
24. GOVERNMENTAL EXAMINATIONS. If required by a regulatory authority, agency or
commission, ALLTEL Information is hereby authorized to furnish Data and/or
Output thereto at Client's expense. Client authorizes ALLTEL Information to
comply with all applicable provisions of any statute, law, regulation or
ordinance of any governmental authority having jurisdiction, including but not
limited to any laws pertaining to governmental regulation and examination of
services.
25. SUBCONTRACTING. Client agrees that ALLTEL Information may, in its sole
discretion, subcontract all or any part of its obligations hereunder to one or
more subcontractors, but in no event shall Client be required, without prior
written consent, to look to any such subcontractor directly for performance of
any such obligation or to make any payment directly to any subcontractor.
26. GENERAL.
26.1 NOTICES. All notices required by this Agreement shall be in
writing; shall be mailed or personally delivered to the other party at the
address set forth below, or such other address as subsequently shall be given by
either party to the other in writing; and shall be deemed effective upon
personal delivery to the other party or three (3) days after mailing if mailed
with sufficient postage and properly addressed.
26.2 HEADINGS AND CONSTRUCTION. The headings used in this Agreement are
for convenience only and shall not be used in constructing the provisions
hereof. All reference herein to ALLTEL Information shall be deemed to include
ALLTEL Information.
26.3 SURVIVAL OF PARAGRAPHS. Articles 12, 14, 15, 17 and 25,
and Paragraphs 13.1 and 13.2, herein shall survive the termination or
expiration of this Agreement.
26.4 ENTIRE AGREEMENT AND AMENDMENTS. This Agreement contains the
entire agreement of the parties hereto. No other agreement, statement or promise
made by any party hereto or by any employee, officer, or agent of any party
hereto that is not in writing and signed by the parties is binding; except that
ALLTEL Information may amend from time to time the
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terms and conditions of this Agreement, any Exhibits or any other Addenda
upon written notice to Client. Notwithstanding the foregoing, ALLTEL
Information shall not discontinue any Services hereunder without providing at
least 180 days prior written notice to Client. Such notice will contain a
reasonable alternative to the Services being discontinued. If this
discontinuance of Services causes the Client any one-time financial impact
ALLTEL Information agrees to reimburse Client for those one-time expenses on
an actual costs basis. It will be assumed that the referenced notice will be
considered delivered on the date the notice is post marked for delivery,
faxed or couriered to the Client.
26.5 ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their successors and assigns. No assignment
hereof may be made by Client without the prior written consent of ALLTEL
Information. Nothing in this Agreement is to be construed to limit or restrict
the right of ALLTEL Information to effect any assignment of this Agreement by
merger, reorganization, sale of corporate assets or other corporate change as
long as the Services outlined in this Agreement continue.
26.6 GOVERNING LAW. This Agreement is governed by the laws of the State
of California. Both parties agree that any action brought as a result, directly
or indirectly, of this Agreement shall be brought in a court of appropriate
jurisdiction in Los Angeles, California. The successful party in any such action
shall be entitled to recover from the unsuccessful party, in addition to any
other relief to which it may be entitled, reasonable attorney's fees (including
an allocable share of the cost of in house counsel) and costs incurred by it in
prosecuting or defending such action.
THIS AGREEMENT IS EFFECTIVE AUGUST 1, 1999 AND HAS BEEN EXECUTED BY THE DULY
AUTHORIZED OFFICERS OF THE PARTIES HERETO.
ALLTEL Information Client
ALLTEL Information Services, Inc. Heritage Oaks Bank
HORIZON Technology Center - West ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Signature: _____________________________ Signature: ____________________
Date: _____________________________ Date: __________________
Print Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Print Name: ____________________________
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Title: SVP AND GENERAL MANAGER Title: ________________
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