EXHIBIT 10.3
REMOTE DATA PROCESSING AGREEMENT
BANKERS DATA SERVICES, INC.
This REMOTE DATA PROCESSING AGREEMENT made and entered into on by and
between BANKERS DATA SERVICES, INC., (HEREAFTER "BDS"), located at 000 X. 00xx
Xxxxxx, Xxxx, Xxxxxxx 00000, and OCEANSIDE BANK (hereafter "Customer") located
at Xxxxxxxxxxxx Xxxxx, Xxxxxxx 00000.
In consideration of the mutual covenants herein contained and other
good and valuable consideration, the parties hereto agree as follows:
1. TERM. This Agreement is for an initial period of two (2) years
commencing upon installation of the system or the first day BDS receives work to
process for Customer. Thereafter, this Agreement shall automatically renew for
successive terms of one (1) year, unless and until either party shall give the
other six month advance written notice of termination at the conclusion of the
then-current term. This provision is subject to the right of BDS to terminate
for cause under paragraph 14 hereof.
2. SERVICES. BDS shall provide to customer the services described in
the schedule marked "Exhibit A" attached hereto and made a part hereof and shall
provide these services in accordance with the procedures outlined in said
schedule. In addition, BDS and Customer may agree from time to time on
additional data processing services to be performed by BDS and all such
additional services shall be performed by BDS subject to the terms and
conditions of this Agreement. The additional services shall be added hereto by a
written addendum to Exhibit A executed by both parties. BDS may make changes
from time to time in the procedures governing its data processing services, but
no substantial changes will be made in such procedures without giving Customer
written notice thereof and a reasonable opportunity to adapt its operations
procedures to such changes.
3. PROCESSING SCHEDULE. BDS will process work in a timely manner
satisfactory to and agreed upon by both BDS and Customer. BDS understand that
prompt performance of all work is necessary for Customer to meet its schedules
and that time is of the essence and will utilize all reasonable efforts to
process work in accordance with the mutually agreed upon schedule.
4. FEES. For performing data processing services for Customer, BDS will
charge the fees set forth in the attached schedule marked "Exhibit B", and these
fees shall remain firm for the initial two-year term of this Agreement. BDS
reserves the right to change said fees upon three months' prior written notice
to Customer. If Customer does not wish to agree to said increase in fees, it may
terminate this Agreement, notwithstanding the termination provision in Paragraph
1, or discontinue the service for which the fees are being raised by giving BDS
written notice 30 days prior to the date said increased fee goes
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into effect. If notice by Customer is not so given, Customer assents to the new
prices and waives any right of early termination under this paragraph. Any work
processed after the effective date of the price increase shall be subject to the
new prices notwithstanding Customer's notice to terminate this Agreement.
Payments shall be made to BDS 10 days after Customer's receipt of BDS invoices
therefor. Outstanding balances which remain unpaid after 30 days after same are
due and payable shall, I the sole discretion of BDS, bear interest at the lesser
of 1.5% per month, or the highest rate permitted by law.
5. EARLY TERMINATION BY CUSTOMER. If Customer terminates this Agreement
except as in accordance with Paragraph 1 or Paragraph 4 hereof, Customer agrees
to pay BDS for the remaining term of the contract the greater of actual fees
earned during each processing month after notice of intent to terminate or 80%
(eighty percent) of average monthly fees BDS earned during the three months
immediately prior to notice of termination.
6. BACK-UP PROVISIONS. BDS assumes responsibility for having adequate
back-up arrangements and equipment at its disposal in the event of a mechanical
failure. It will be the Customer's responsibility to enter into a maintenance
agreement with the equipment manufacturer or an authorized service
representative of the manufacturer to repair and maintain all data processing
equipment owned or leased by the Customer.
7. PRIORITY. BDS covenants to afford priority to all data processing
provided to bank customers, with all bank data processing which is due to be
completed and delivered before any nonbank data processing in
initiated.
8. OWNERSHIP. All systems, programs, operating instructions and other
documentation prepared by BDS shall remain the property of BDS. All data-source
documents shall remain the property of Customer. Upon termination of this
Agreement, Customer information retained in BDS' masters files shall be made
available to Customer on magnetic tapes furnished by Customer of a type suitable
for use on BDS equipment, and BDS will return to Customer, after Customer's
remittance to BDS of a reasonable fee to cover this final servicing and handling
process and to reimburse BDS for the cost of any unused stock of special forms
prepared for Customer.
9. DELIVERY OF DATA. The Customer will be responsible for its material
while in transit and shall bear all risk of loss damage while material is in
transit to or from BDS. Customers shall prepare its input material in a form
acceptable to BDS. This input and the information necessary for controls will be
delivered to BDS according to a schedule mutually agreeable to both parties.
Customer will be responsible for entering the input data furnished
by Customer into the computer systems and BDS will process all data received
from Customer in a form acceptable to BDS as promptly as practicable after
receipt thereof, but the time for processing such data shall be extended in the
event of the failure of BDS equipment or other situations beyond its control.
BDS may refuse to process and may return to
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Customer and documents, items, records or input data which, in BDS' opinion, are
not of a quality or condition satisfactory for process or which do not comply
with BDS applicable procedures manual or are not in a machine-readable form
acceptable to BDS. The Customer will be responsible for correcting the rejected
data and for submitting corrected material for reentry.
10. DUTY OF CARE; LIMITATION OF LIABILITY; INDEMNIFICATION.
BDS agrees to use the same care in processing Customer's material as it uses in
performing similar services for itself, but recognizing that data processing
involves certain possibilities of errors, omissions, delays, loss or mutilation
of documents and other occurrences which may give rise to loss or damage THE
PARTIES AGREE THAT BDS SHALL NOT BE LIABLE ON ACCOUNT OF SUCH MATTERS UNLESS
CAUSED BY ITS GROSS NEGLIGENCE. CUSTOMER AGREES THAT BDS SHALL BE EXCUSED FROM
PERFORMANCE AND SHALL NOT BE LIABLE FOR ANY DELAY IN DELIVERY OR FOR
NON-DELIVERY, IN WHOLE OR IN PART, CAUSED BY THE OCCURRENCE OF CONTINGENCIES
BEYOND THE CONTROL OF BDS, INCLUDING, BUT NOT LIMITED TO, WAR, SABOTAGE,
JUDICIAL ACTION, LABOR DISPUTE, ACCIDENT, FIRE, EXPLOSION, FLOOD, STORM, OR ANY
ACT OF GOD. CUSTOMER FURTHER AGREES THAT IN NO EVENT WILL BDS BE LIABLE FOR
INDIRECT, SPECIAL, COLLATERAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. CUSTOMER
FURTHER AGREES THAT IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF BDS FOR
ANY DAMAGES ARISING UNDER THIS CONTRACT AND SERVICES PERFORMED HEREUNDER EXCEED
THAT TOTAL AMOUNT PAID BY THE CUSTOMER TO THE BDS DURING THE PRECEDING TWELEVE
MONTH PERIOD (OR, SHOULD THE CONTRACT HAVE BEEN IN EFFECT LESS THAN SUCH PERIOD,
FOR THE TERM OF THE CONTACT).
Customer understands that BDS uses certain computer programs to process
work which are licensed from their owners or distributors. Customer agrees not
to bring any action against any said vendor arising out of, or in any way
related to, the services to be performed by BDS hereunder.
Customer shall adopt such measures as it deems appropriate for its own
interest in respect of such matters, including (without limiting the generality
of the foregoing) provision for the ascertainment and correction of errors and
omissions, replacement of lost or mutilated documents and the reconstruction of
data. In any event, the Customer shall indemnify and hereby agrees to hold BDS
harmless against any and all claims or causes of actions by or on behalf of any
and all third parties whomsoever arising out of, or in any way related to, the
services to be performed by BDS here under.
11. CONFIDENTIAL TREATMENT OF INFORMATION. BDS agrees to receive in
confidence all information relating to the Customer's business and accounts and
represents and warrants to the Customer that this information will not be used
by BDS or any affiliated company for any purpose other than in strict compliance
with this
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Agreement. BDS will not release such information to any of its other departments
or affiliated companies, and such information will not be used to solicit new
business or to any other advantage by BDS. No information hereunder will be
considered confidential if (1) it is or becomes public knowledge through no
fault or negligence of BDS, (2) it is rightfully disclosed by some third party,
or (3) it is already known to BDS prior to this date and has not been obtained
in confidence under this Agreement.
12. AUDITS AND GOVERNMENTAL EXAMINATIONS. BDS agrees to allow
Customer's internal and outside auditors to perform audit procedures within BDS,
but this audit responsibility rests entirely upon the Customer. BDS also agrees
that upon Customer's written request assurances will be given to appropriate
federal and state supervisory agencies that the performance of the services by
BDS for the Customer under this Agreement will be subject to regulation and
examination by such agency to the same extent as if such services were being
performed by the Customer itself on its own premises, provided, however, that
the Customer will bear the full audit responsibility.
13. MODIFICATIONS. The terms of this Agreement may be modified by BDS
by written notice to Customer, except for the terms and conditions which relate
specifically to BDS duty of care as provided for in Paragraph 10 of this
Agreement and BDS' representation and warranty of confidential treatment of the
Customer's items processed as provided for in Paragraph 11 of this Agreement.
The Customer may terminate this Agreement or discontinue any of the services
hereunder affected by such modification upon six-month prior written notice to
BDS; otherwise, such modification shall become effective.
14. DEFAULT. The breach by either party or any obligation hereunder
that is not cured within thirty (30) days of written notice shall constitute a
"default".
Notwithstanding the agreed term of this Agreement, in the event of
default by Customer or BDS, or if either party ceases doing business or ceases n
its own initiative to provide service under this Agreement may be terminated by
the other party to a receivership proceeding, then this Agreement may be
terminated by the other party thereto. Should BDS send Customer written notice
of termination, BDS shall have no further duties or liabilities to Customer
hereunder, except to assemble at Customer's cost, Customer's documents and other
materials and make them available for Customer to pick up.
15. ENTIRE AGREEMENT. This instrument contains the entire Agreement
between the parties and supersedes any and all previous Agreements between the
parties on the subject matter hereof. All exhibits to which reference is made
herein are incorporated in this Agreement. The Agreement may be enlarged,
modified or altered only as provided in Paragraphs 2 and 13 above or in writing
signed by both the parties.
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16. GOVERNING LAW. This Agreement is being executed and delivered and
is intended to be performed in the State of Georgia, and shall be interpreted,
construed and enforced in accordance with the laws of such State.
17. This Agreement shall be binding upon and insure to the benefit of
the respective parties, their heirs, successors and assigns.
18. NOTICES. All notices under this Agreement shall be deemed duly
given upon delivery, if delivery is by hand; or three days after delivery into
the United States Mail if sent by registered mail, return receipt requested to a
party at the address hereinabove set forth or to such other address as a party
may designate by notice pursuant hereto.
19. ACCEPTANCE. This agreement shall be withdrawn if execution by both
parties is not complete within sixty (60) days of agreement date.
IN WITNESS WHEREOF< the parties have executed and sealed this Agreement
the day and year written below.
BDS: CUSTOMER:
BANKERS DATA SERVICES, INC. OCEANSIDE BANK
BY: /S/ Xxxxxx X. Xxxxxxx, BY: /S/ Xxxx Xxxxxxxxxxx
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Xxxxxx Xxxxxx Xxxxxxx Xxxx Xxxxxxxxxxx
Vice President CEO
4-3-97 3-31-97
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Date Date
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OCEANSIDE BANK
JACKSONVILLE, FLORIDA
MARCH 24, 1997
EXHIBIT A
Description of Data Processing Services
In consideration of the Remote Usage Fees contained in Exhibit B, BDS
shall provide the services set forth below and any others not specified below as
they may be described in other areas of this Agreement, of which the Exhibit is
a part.
Daily Activity
Maintain all information input by Customer with respect to the
accounts necessary to operate the System in accordance with
the documentation as provided by SPARAK or in such a manner as
shall be mutually agreed upon by the parties.
Functions
Maintain System availability for inquiry, input, and printing
purposes during Customer's business hours.
Process transactions input into the System by Customer once
nightly on a daily basis as directed by Customer.
At Customer's discretion, schedule all batch jobs necessary
for daily, weekly, monthly, quarterly, and annual system
processing of accounts.
Telephone Support
BDS will provide support to address questions regarding
operation and use of system.
System Description
The System consists of equipment and services supplied by BDS, Premier
Imaging, and application software known as SPARAK 3000 and is designed
to operate on mainframe computer equipment to provide data processing
services for financial institutions.
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OCEANSIDE BANK
JACKSONVILLE, FLORIDA
MARCH 24, 1997
EXHIBIT B
Fees
Monthly fee based on $100.00 per million in assets with a minimum of
$2000.00. Note that the fee will be calculated each anniversary based on the
then current total assets of the bank.
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