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EXHIBIT 10.4
CSI DATA PROCESSING AGREEMENT
This is a Data Processing Agreement made and entered into as of the 6th
day of June, 1998, by and between COMPUTER SERVICES, INC., a Kentucky
corporation, which has its principal place of business at 0000 Xxxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000-0000 ("CSI"), and PREMIER BANK, which has its principal
place of business at Jefferson City, Missouri (the "Customer").
RECITALS
A. CSI is engaged in the business of providing data processing services
to, and operating data processing systems for, depository financial
institutions.
B. The Customer is a depository financial institution which desires that
CSI provide data processing services to it and operate a data processing system
for it.
In consideration of the mutual promises exchanged, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 "Agreement" unless the context otherwise requires, means this Data
Processing Agreement and all Supplemental Agreements relating to data processing
entered into between CSI and the Customer from time to time.
1.2 "CRC" means CSI's Customer Resource Center described in section 2.6 of
this Agreement.
1.3 "CRT" means a cathode ray tube display computer terminal connected
through a telecommunications network with CSI's data processing system.
1.4 "Customer" unless the context otherwise requires, means the party other
than CSI executing this Agreement and also includes the Customer's officers,
employees, agents, representatives, or other persons or companies who are in any
manner employed by or affiliated with the Customer.
1.5 "Customer Service Representative" means a full-time employee of CSI to
whom CSI assigns the responsibilities described in section 2.7 of this
Agreement.
1.6 "DP Coordinator" means one or more full-time employee(s) of the
Customer to whom the Customer assigns the responsibilities described in section
2.7 of this Agreement.
1.7 "Supplemental Agreements" means any and all of a series of Supplemental
Data Processing Agreements so denominated entered into between the parties, from
time to time, which govern
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particular aspects of the relationship between CSI and the Customer in regard to
data processing and related services.
1.8 "Transaction Data" means that data which is necessary and incidental to
the services which CSI agrees to provide as more particularly set forth in
specific Supplemental Agreements.
1.9 "Validate," "validated," "validating" and "validation" shall mean the
process by which the Customer confirms the validity of, to test and prove, and
to indicate the Customer's satisfaction with: (i) the sufficiency of selected
data processing option parameters and modifications thereof; and (ii) each day's
processing including without limitation all calculations.
ARTICLE II
DATA PROCESSING SERVICES
2.1 SERVICES. CSI agrees to provide the data processing services to the
Customer which are specially described in, and subject to, the terms and
conditions of the Supplemental Agreements.
2.2 EQUIPMENT. CSI will acquire and utilize the computer hardware,
software, systems and procedures, including appropriate backup protection,
necessary to provide tot he Customer the data processing services.
2.3 SYSTEM CONVERSION. The Customer will fully cooperate with CSI in
converting the Customer's data processing applications as described in the
Supplemental Agreements. The Customer agrees to use its best efforts to enable
CSI to complete conversion of all applications as soon as is reasonably
practicable.
2.4 TRAINING. CSI will provide to the Customer CSI's standard training
program for the purpose of training the Customer's personnel in the proper use
of CSI's procedures, systems and reports. The Customer will provide competent
personnel for the training and will cooperate with CSI in scheduling the
training in conjunction with the Customer's conversion to CSI's data processing
system. If requested by the Customer, any training in addition to that provided
by CSI's standard training program will be provided at CSI's standard rates for
additional training then in effect.
2.5 CUSTOMER SELECTED OPTIONS. CSI will make available to the Customer a
selection of option parameters relating to bank control records. The Customer
acknowledges that some of these options can be modified through a CRT from the
Customer's location by the Customer and other options can only be modified by
CSI in the CRC. The Customer is responsible for making the selection among the
available option parameters or modifications thereof. The Customer is
responsible for designating the Customer's personnel authorized to select the
options or make modifications thereof. When option modifications are made, the
Customer is responsible for validating, on the earlier of the first processing
day or fist processing cycle in which the selected modification is able to be
validated, that the options or modifications thereof perform as desired.
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2.6 CUSTOMER RESOURCE CENTER. CSI will provide a Customer Resource Center
staffed by CSI's personnel to provide service assistance to the Customer. As of
the date of this Agreement, the CRC operates from 7:00 a.m. to 5:00 p.m. Central
Time, Monday through Friday, and from 8:00 a.m. until 11:30 a.m. Central Time on
Saturday. CSI reserves the right to change the CRC schedule from time to time,
but will give prompt notice to the Customer of any change. The CRC can be
accessed by the Customer via the use of CSI's electronic mail system through
CRTs or by telephone. Electronic mail service is available as of the date of
this Agreement until 5:00 p.m. Central Time, Monday through Friday, and the
regular operating hours on Saturday. This schedule is also subject to change.
2.7 ACCOUNT PLANNING RELATIONSHIP. CSI will designate a Customer Service
Representative who will be responsible for coordinating planning of the service
usage by the Customer; coordinating training of the Customer's personnel;
periodic review of contacts with the CRC; and the overall responsibility for
satisfaction and efficiency of use of CSI's services by the Customer. The
Customer will designate a DP Coordinator who shall have the same
responsibilities as outlined above for CSI's Customer Service Representative on
behalf of the Customer. The DP Coordinator shall also be responsible for
ensuring the timely validation of results of processing and coordinating the
Customer's activities which involve contact with the CRC.
ARTICLE III
TERM
3.1 ORIGINAL TERM. This Agreement shall be effective as of the date first
above written, but any reference in this Agreement tot he term during which
actual data processing services (in contradiction to services in connection with
system(s) conversion) are to be provided hereunder shall mean a term of seven
(7) years commencing (i) for a new Customer, on the first day of the calendar
month immediately following the month in which the Customer's demand deposit
system in actually converted to CSI's data processing system; or (ii) if the
Customer's demand deposit system has already been converted to CSI's data
processing system, on the date first above written.
3.2 RENEWAL TERM. The term of this Agreement shall be automatically
renewed, without notice, for a new period of the same length in time as the
original period specified in section 3.1 following the expiration of each
preceding term, and shall continue to be renewed automatically until this
Agreement is terminated as provided in this paragraph. By written notice to the
other party at its address stated above, given at least one hundred eighty (180)
days prior to the last day of the ten existing term, either party may terminate
this Agreement at the expiration of the original term or any renewal term, as
the case may be. If proper written notice of termination is given, this
Agreement shall then terminate on the last day of the ten existing term.
3.3 EXTENDED TIME. If the Customer gives the notice contemplated in section
3.2, but nonetheless requests that CSI continue to provide data processing
services, CSI will continue to provide such services on a month-to-month basis.
The month-to-month agreement for continuing service may be terminated by either
party upon thirty (30) days' advance written notice. During the month-to-month
agreement period, the data processing services will be provided subject to the
terms
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and provisions of this Agreement, including the Supplemental Agreements, except
for charges for services, which may be changed by CSI from time to time and
which shall be at CSI's then current prices in effect plus a fifteen percent
(15%) price adjustment on processing services.
ARTICLE IV
CHARGES FOR SERVICES
4.1 SERVICE CHARGE. The Customer agrees to pay to CSI the charges as
specified in the Supplemental Agreement(s) attached hereto, less a ten percent
(10%) discount on processing services for the term of this Agreement (does not
include non-processing services or products such as phone line charges,
supplies, equipment, software for operation on customer's equipment, consulting
services separately agreed to, etc.) The charges for the data processing
services shall remain in effect for the first year of this Agreement.
Thereafter, CSI shall have the right to increase charges once each year. CSI
agrees that such increase(s) will not exceed the increases in the Consumer Price
Index (CPI). As used herein, the term Consumer Price Index means the Consumer
Price Index published by the United States Department of Labor, Bureau of Labor
Statistics, urban consumers, all cities average, 1982 - 1984 = 100. These
adjustments may be cumulative. In any event, prices will not be raised greater
than the CSI then currently standard prices applicable to all CSI customers. CSI
has the right to implement any such increase upon thirty (30) day's advance
written notice to the Customer.
4.2 OTHER CHARGES. There shall be added, at the option of CSI, to the
charges under this Agreement amounts equal to any taxes, however designated,
levied, or based, on such charges, or on this Agreement, including state and
local sales, privilege or excise taxes based on gross revenue, and any taxes or
amount in lieu thereof paid or payable by CSI in respect of the foregoing,
exclusive, however, of taxes based on CSI's net income. Additionally, any
services performed by CSI for the Customer which are not specifically
established by this Agreement, including any Supplemental Agreement, shall be
billed to the Customer at CSI's standard time and materials rates as may be in
effect at the time the services are performed.
4.3 LATE CHARGES. The Customer shall pay all undisputed charges to CSI
within ten (10) days from the date of CSI's invoice. Any charges not paid within
ten (10) days of the invoice will bear interest at the rate of one and one-half
percent (1 1/2%) per month (or fraction thereof).
ARTICLE V
CUSTOMER'S INPUT-DELIVERY
5.1 TRANSACTION DATA-QUALITY. The Customer agrees to timely prepare and
transmit or deliver Transaction Data to CSI in accordance with the terms and
provisions of this Agreement. The Transaction Data will be in accordance with
the uniform format and procedures specified from time to time by CSI. The
Customer understands, acknowledges and agrees that the quality of processing
services received is affected by the quality of the Transaction Data, and
therefore, further understands, acknowledges and agrees that the responsibility
for the quality of the Transaction Data
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submitted by the Customer to CSI or received by CSI from a third party,
including but not limited to Federal Reserve or automated clearinghouse
transactions, rests with the Customer. The Customer will maintain edit,
verification and procedural check points sufficient to determine the accuracy of
all Transaction Data transmitted or delivered.
5.2 DATA BACKUP. The Customer will be solely responsible for providing and
maintaining adequate source Transaction Data backup and/or retention to allow
subsequent reconstruction of Transaction Data. The backup will be retained by
the Customer until the Customer is satisfied the source Transaction Data would
no longer be useful in the reconstruction of Transaction Data.
5.3 DELIVERY. The Customer is responsible for the cost to deliver
Transaction Data (by common carrier, courier service, electronic transmission,
or otherwise) from the Customer's office to CSI and to deliver the data and
results from CSI to the Customer's office or other location designated by the
Customer. Unless expressly governed by a Supplemental Agreement, all risk of
loss or damage to the Transaction Data of the Customer or data and results from
CSI during delivery shall be at the exclusive risk of the Customer; provided,
however, that any courier service delivery initiated by CSI's personnel shall be
at the risk of CSI unless expressly governed by a Supplemental Agreement.
ARTICLE VI
CONFIDENTIALITY-SYSTEM OWNERSHIP
6.1 PROTECTION OF MATERIALS OF CSI-OWNERSHIP. The Customer understands,
acknowledges and agrees that the computer programs, system and design
specifications, documentation, forms and other system materials used by CSI to
provide the services are trade secrets of CSI and any disclosure thereof to
third parties will result in substantial monetary loss and irreparable damage to
CSI. The Customer agrees not to disclose such trade secrets to any third party,
nor to make any use of them not contemplated by this Agreement, and to treat the
same confidentially and to safeguard them. All user manuals, computer tapes,
disks, programs, specifications and enhancements developed in connection with
the services are and shall remain at all time during and after the term of this
Agreement the exclusive property of CSI.
6.2 PROTECTION OF CUSTOMER DATA. CSI agrees not to disclose Transaction
Data to any third party, nor to make any use of them not contemplated by this
Agreement, and to treat the same confidentially and to safeguard them. (All
Transaction Data utilized in connection with the services are and shall remain
at all times during and after the term of this Agreement the exclusive property
of Customer.)
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ARTICLE VII
SOLICITATION OF EMPLOYEES
The parties agree that neither party, nor any affiliated person or entity of
either party, shall, without the written consent of the other party, solicit for
employment, or employ, any person who was an employee of the other party during
the term of this Agreement. This restriction shall apply during the term, and
for a period of one hundred eighty (180) days after the termination, of this
Agreement.
ARTICLE VIII
AUDITS AND DISCLOSURE
8.1 REGULATION AND EXAMINATION BY GOVERNMENT. If the services performed
pursuant to this Agreement by CSI are subject to the regulations and
examinations of any governmental agencies having supervisory jurisdiction over
the Customer, CSI acknowledges and agrees to be so subject to the same extent as
if such services and functions were being performed solely by the Customer on
its own premises.
8.2 THIRD PARTY AUDITOR'S REVIEW. CSI will cause to be performed on an
annual basis a "Third Party Auditor's Review" by a firm of independent certified
public accountants. This Third Party Auditor's Review and the report thereon
shall include as a minimum the following items: a description of backup and
record protection procedures; a summary of processing priorities; and a summary
of insurance coverage including errors and omissions. A copy of the auditor's
report shall be furnished to the Customer and/or any auditor designated by the
Customer. After examination of the report, if the Customer or its auditors have
need of additional information or desire to perform any additional auditing
procedure, CSI will permit, within a reasonable time, reasonable access to CSI's
data upon written authorization by the Customer to release this information to a
specified auditor. CSI will charge, and the Customer agrees to pay, for the
costs of any services provided or materials used by CSI in supplying the audit
assistance.
8.3 NOTIFICATION OF CHANGES. CSI will notify the Customer within a
reasonable time period prior to any material changes in any program or
application that would affect procedures, reports and the like.
8.4 ANNUAL REPORT. CSI will furnish annually to the Customer a copy of
CSI's annual report which includes audited financial statements and an opinion
of the certified public accountants who performed the audit as to the fairness
of presentation of the financial statements.
ARTICLE IX
STANDARD OF CARE-LIMITATION OF LIABILITY
9.1 DUE CARE. CSI agrees that it will use due care in providing the data
processing services to the Customer. CSI will have no obligation to determine or
be responsible for the accuracy or
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validity of any item, data, or information furnished by or for the Customer, all
of which are the Customer's obligation.
9.2 CUSTOMER'S VALIDATION. The Customer is responsible for reviewing and
validating each day's processing and advising CSI as soon as possible of any
abnormal data contained on any report. The Customer will validate, at least
monthly, all calculations including without limitation earnings on loans,
interest calculations on interest bearing accounts, service charges, payroll
taxes and the like. CSI will in no event be liable in any manner to the Customer
for any loss or damage sustained by the Customer by reason of the Customer's
failure to review and validate in accordance with this paragraph.
9.3 LIMITATION OF LIABILITY. CSI's liability to the Customer is limited to
the cost of correcting any errors which are due solely to CSI's lack of due
care. IN NO EVENT WILL CSI BE OBLIGATED TO CORRECT, AND THE CUSTOMER WILL HOLD
CSI HARMLESS, FOR ALL ERRORS AND ALL OMISSIONS AND THE COST OF CORRECTION
THEREOF IF THE CUSTOMER DOES NOT GIVE WRITTEN NOTICE TO CSI OF AN ALLEGED ERROR
OR OMISSION WITHIN SEVEN (7) DAYS FOLLOWING THE FIRST REASONABLE OPPORTUNITY TO
DISCOVERY SUCH ALLEGED ERROR OR OMISSION. The parties, knowingly and voluntarily
allocating the risks between them, expressly agree and understand that CSI will
not be responsible in any manner or liable for the following:
(a) Any errors, omissions or delays in processing or in the
transmission or delivery of processed data caused by strike, lockout, war, riot,
insurrection, acts of God, governmental acts or regulations, or other causes
beyond its reasonable control;
(b) Any errors, omissions or delays that might be caused by
erroneous, untimely or incomplete deliveries or transmissions of Transaction
Data which are the fault, in whole or in part, of the Customer or any agent or
third party acting on behalf of the Customer;
(c) Any errors, omissions or delays which are the result in whole
or in part, of any acts or omissions of the Customer, or the unauthorized use of
a terminal at the Customer's place of business;
(d) Any errors, omissions or delays which are caused, in whole or
in part, by the Customer's failure to verify or to monitor the accuracy of
reports and statistics through the maintenance of accepted accounting controls
and procedural check points; and
(e) Any and all loss or damage incurred by the Customer, including
but not limited to all consequential and incidental damages.
Any correction which CSI is required to make shall include complete reruns
and/or restoration of programs and/or data files; provided that if CSI is
unable, for any reason, to complete the reruns and/or restoration, then the
Customer may elect to receive the equivalent value based upon the cost
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of the original services that were in error as described by the appropriate
Supplemental Agreements. The parties agree that the remedies specified in this
Article are the exclusive remedies of the Customer and CSI shall in no event be
liable for any other remedy.
9.4 LIABILITY TO THIRD PARTIES. The Customer will indemnify and hold CSI
harmless from and against any and all claims, actions, and demands, and from all
liability, damages and losses relating thereto, brought by any third party
against CSI which arise, either directly or indirectly, out of this Agreement or
CSI's performance hereunder except in the case of CSI's gross negligence or
willful misconduct in providing the data processing services to the Customer. In
addition, the Customer agrees to pay to CSI any attorneys' fees and other costs
and expenses incurred by CSI in regard to the same.
9.5 DISCLAIMER OF WARRANTIES. CSI warrants that it has the right to perform
the data processing services described in the Supplemental Agreements. THIS
WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICES,
WHETHER EXPRESSED OR IMPLIED. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT CSI
EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND ANY OTHER WARRANTIES OF ANY KIND WHATSOEVER.
9.6 YEAR 2000 COMPLIANCE. In addition to its other duties in this Article
IX, CSI expressly acknowledges its duty to provide accurate processing (i.e.,
the calculating, comparing and sequencing of dates and date-related data) in
regard to the manipulation of dates both before and after January 1, 2000, and
in the transition of date-related data between the years 1999 and 2000. The
parties acknowledge and agree that any processing by CSI that is not accurate
with respect to the matter addressed in this section 9.6 shall be subject to the
remedial and other provisions of this Article IX as if the inaccuracy were any
other error due solely to CSI's lack of due care.
9.7 SERVICE QUALITY: In addition to procedures outlined in this Article IX,
the parties agree that, in a service contract such as this, from time to time
difficulties may arise that necessitate pre- agreement as to the method of their
resolution and the parties have agreed to an action plan as follows:
(a) If service performance is not at a level that would be
generally accepted as standard in the industry or among CSI's customers,
whichever is the greater level of service, a management representative of
Customer will outline the issues of concern in writing and provide notice to CSI
of the areas of concern.
(b) If input quality or user interaction with the computer are not
of a standard that would be generally accepted in banks in dealing with their
data processing departments, then CSI also agrees to outline these items of
concern in writing and provide to Customer.
(c) The parties respectively agree that upon any notification
outlined in (a) or (b) above to diligently review all aspects of the issues
present and develop a plan of action for correction of
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the problem. When either party feels it is appropriate both parties will agree
to a face-to-face meeting to insure their understanding of the problems and
provide an opportunity for participation in the development of the action plan.
(d) An agreement can be made in step (c) above for a reasonable
time for correction of the deficiencies identified.
(e) If after the reasonably agreed time, corrections have not been
made then the parties agree that economic settlements can be made, however, the
economic settlements must be limited by the cost of the services for the period
of difficulty.
(f) Either party may invoke the arbitration provisions of section
10.5 of this Agreement as to any correction not made within the reasonably
agreed time specified pursuant to (d), above, or if either party fails to
participate in the process outlined in this section 9.7.
ARTICLE X
TERMINATION
10.1 NOTICE OF DEFAULT. In the event of any default or breach by a party of
any term, obligation, covenant, representation or warranty contained in this
Agreement, the other party shall give written notice thereof to the breaching or
defaulting party, and the breaching or defaulting party shall have a period of
thirty (30) days within which to cure or correct such breach or default, except
in the case of a breach or default in the payment of money, in which case such
period shall be ten (10) days. The defaulting party shall utilize its best
efforts to cure the default as soon as reasonably possible. If the default
(excepting default in the payment of money) cannot be cured within thirty (30)
days from date of receipt of the notice thereof, the defaulting party shall have
additional reasonable time to cure such default. This additional time shall not
exceed ninety (90) days without the written consent of the nondefaulting party,
which consent shall not be unreasonably withheld. The nondefaulting party shall
have the right to terminate this Agreement if the defaulting party fails to cure
the default within the time periods as provided herein. In the event of
termination due to the Customer's default, all payments due CSI, including but
not limited to the liquidated damages as defined in section 10.4, shall be due
and payable to CSI at the time of termination.
10.2 TERMINATION UPON INSOLVENCY. If the Customer is declared insolvent by
any state or federal regulatory agency, this Agreement shall automatically
terminate upon the declaration of insolvency and CSI shall become immediately
entitled to all payments due it, including but not limited to the liquidated
damages as define din section 10.4. Notwithstanding the foregoing, if the
Customer is declared insolvent but is not liquidated, CSI will, only as an
accommodation, make its services available for thirty (30) days following the
date of insolvency and the use of its services thereafter by any new owner or
successor in interest shall be deemed acceptance and assumption of this
Agreement on the full terms and conditions contained herein.
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10.3 UNAUTHORIZED TERMINATION BY THE CUSTOMER. If the Customer terminates
this Agreement prior to the commencement date of the original term, or prior to
the expiration date of the applicable term, or at an expiration date without one
hundred eighty (180) days' advance written notice, and the termination is for
any reason other than a default by CSI which CSI has not cured within the time
permitted by section 10.1, all payments due CSI, including but not limited to
the liquidated damages as defined in section 10.4, shall be due and payable to
CSI at the time of termination.
10.4 LIQUIDATED DAMAGES. In the event of CSI's termination of this Agreement
for reason of the Customer's default, or in the event of an unauthorized
termination by the Customer, the Customer shall pay to CSI as liquidated damages
a sum equal to sixty percent (60%) of the following amount: the product of one
(1) month's average billing based upon the last three (3) full months' billing
immediately preceding the effective date of termination multiplied by the number
of months and fractions thereof remaining from and after the effective date of
termination to the expiration date of the then applicable term of this
Agreement. If the effective date of termination occurs prior to the receipt by
CSI of three (3) full months' billing following full and final conversion of all
systems described in the Supplemental Agreements, the one (1)month's average
billing shall be the reasonably anticipated one (1) months's average billing
based upon the greater of either (i) the Customer's account and transaction
volumes as set forth in CSI's final proposal to the Customer, or (ii) the
Customer's account and transaction volumes as of the effective date of this
Agreement. If the Customer terminates this Agreement prior to the commencement
date of the original term, the full term specified in section 3.1 of this
Agreement shall apply. If the Customer terminates this Agreement at the
expiration date of the then applicable term without the one hundred eighty (180)
days' advance written notice, the next full term specified in section 3.1 of
this Agreement shall apply. The damages or losses which would be sustained by
CSI by reason of the termination are uncertain and difficult to ascertain, the
amount determined hereunder represents a reasonable method of estimating such
damages or loss, the amount determined hereunder is a reasonable estimate of the
damages or losses which would be sustained by CSI by reason of the termination,
the amount determined hereunder is reasonably proportionate to the damages or
losses that would be sustained by CSI, and the amount determined hereunder is in
the nature of liquidated damages and is not nor at any time should it be deemed
or construed a penalty.
10.5 ARBITRATION.
(a) Both parties agree, upon the request of either party, to
submit to binding arbitration any dispute arising under this Agreement or any
other agreement referenced in section 10.1 above. Except in the event one of the
parties invokes paragraph (d) of this section 10.5, within fifteen (15) business
days following the receipt of the request, the receiving party will select, and
notify the other party of the selection of, a representative of a present
customer of CSI other than Customer to act as arbitrator. If the requesting
party does not agree to arbitration by the other customer representative so
selected, within fifteen (15) business days of receipt of notice of such
selection, the requesting party shall also select, and notify the other party of
the selection of, a representative of still another customer of CSI to act as
arbitrator. The agreed upon customer representative or a
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customer representative selected by the other two, if the parties do not agree,
shall act as the sole arbitrator of the dispute.
(b) Both parties will then submit to the arbitrator within fifteen
(15) days after the selection of the arbitrator a complete written statement of
its view of the dispute and its recommended solution. Not later than fifteen
(15) days following the receipt of both written submissions (or the expiration
of the fifteen (15) day period if no submission is made) the arbitrator will
render a decision to resolve the dispute and the arbitrator's decision shall be
binding upon both parties. The arbitrator shall be limited to the terms of this
Agreement and general practices within the banking industry in rendering its
decision, and shall give fair consideration to the recommended solutions of the
parties, but shall not be limited to such recommended solutions in rendering its
decision. Each party shall pay one-half of the expenses of the arbitrator
incurred in connection with the arbitration.
(c) Failure of a party to perform an act required by the
arbitrator's decision to be performed by such party shall constitute, for
purposes of this Article X, a default or breach subject to the procedures of
section 10.1. An uncured default or breach shall give rise to the right to
terminate this Agreement by the nondefaulting party upon expiration of the
applicable grace periods specified in the first sentence of section 10.1 and
with the same effect.
(d) In lieu of arbitration in accordance with paragraphs (a), (b)
and (c) of this section 10.5, either party may elect to have any dispute arising
under this Agreement or any other agreement referenced in section 10.1 above, or
the breach thereof, to be settled by arbitration in St. Louis, Missouri
administered by the American Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may
be entered in any court having jurisdiction thereof.
10.6 FILES AND OTHER MATERIALS. CSI will have the absolute right to retain
in its exclusive possession the Customer's test data and data files until such
time as the Customer has paid and satisfied all payments due CSI, including but
not limited to payment of liquidated damages as defined in section 10.4, as
prescribed in this Agreement, including the Supplemental Agreements. Upon full
payment to CSI, CSI shall provide to the Customer its data files in CSI's
standard machine readable format at the time and material rates in effect at the
time such services are performed. At time of termination, the Customer shall
return to CSI all of CSI's operational manuals and materials. All
specifications, storage media and programs utilized or developed by CSI in
connection with this Agreement, excepting those furnished by the Customer, are
and shall remain the sole property of CSI.
10.7 DEPOSIT AND ACTION. If, following termination of this Agreement in
accordance with this Article X, CSI has retained the Customer's test data and
data files because CSI believes the Customer has not satisfied all payments due
CSI, as provided in section 10.4, the Customer may elect to deposit the disputed
amount into a federally insured financial institution in St. Louis, Missouri.
The deposit shall be subject to the Customer's obligation to commence an action
against
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CSI before a state court of competent jurisdiction located in the State of
Missouri to determine the extent to which CSI is entitled to be paid, or the
Customer is entitled to have returned to it, all or portions of the disputed
funds. Once the disputed amount is so deposited as provided in this section
10.7, CSI's right to retain the Customer's test data and data files pursuant to
section 10.6, shall be terminated and CSI shall promptly release the test data
and data files to the Customer.
ARTICLE XI
GENERAL PROVISIONS
11.1 GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be governed
by and construed in accordance with the laws of the State of Missouri, both as
to interpretation and performance. Any legal action brought to enforce any
provision of this Agreement shall be brought before a state court of competent
jurisdiction located in the State of Missouri, and the parties agree to submit
themselves to the jurisdiction of such court.
11.2 SEVERABILITY PROVISION. If any provision of this Agreement is
determined to be invalid, the offending provision shall be deemed severed from
this Agreement and the determination shall not affect the validity of any other
clause or provision of this Agreement, which shall remain in full force and
effect, or constitute any cause of action in favor of either party against the
other.
11.3 SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and assigns, but no assignment shall
relieve the parties of their respective obligations hereunder.
11.4 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement, including the
Supplemental Agreements, contains all the terms and conditions agreed upon by
the parties, and supersedes all prior and contemporaneous negotiations,
representations, understandings and other agreements, oral or otherwise that may
have been entered into by the parties. All other statements, conditions,
covenants, representations and warranties are merged herein. Any modifications
of this Agreement shall be in writing and duly executed by the parties.
11.5 NO IMPLIED WAIVER. Any delay or failure of either party at any time to
require performance by the other party of any provision of this Agreement shall
not in any way affect the right of such party to require performance. Any waiver
by either party of any breach of any provision of this Agreement shall not be
construed to be a waiver of any subsequent breach of or any other right under
this Agreement.
11.6 NOTICES. Any notice, request, instruction or documents required or
permitted hereunder shall be in writing and shall be deemed given if delivered
personally or by courier service or sent by telex, telecopy or other
telecommunication device capable of creating a written record (and promptly
confirmed by hard copy delivery) to a party at the address set forth in the
first paragraph of this Agreement.
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The Customer and CSI have entered into this Agreement as of the date
first above written, but have manually executed this Agreement on the dates
entered below.
COMPUTER SERVICE, INC. PREMIER BANK
By: /s/ Xxxxx Pawles By: /s/ Xxxxx X. Xxxxx
-------------------------------- ---------------------------------
Title: President & COO Title: President and CEO
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Place: Paducah, Kentucky Place: Jefferson City, Missouri
----------------------------- ------------------------------
Date: 7/20/99 Date:
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