EXHIBIT 10.4
ADDENDUM TO DATA PROCESSING SERVICES AGREEMENT
WHEREAS, XXXX XXXXX & ASSOCIATES, INC., 000 Xxxx Xxxxxxx 00, Xxxxxx, XX 00000
("XXX") and MISSION BANK, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 ("Client")
entered into a DATA PROCESSING SERVICES AGREEMENT dated December 12, 2001
(Agreement"): and
WHEREAS, Client hereby requests XXX to furnish and install the following
Additional Services:
INSTALL MONTHLY
ADDITIONAL SERVICES FEE SERVICE FEE
NetTeller Online Banking(tm) $ 3,750 $ 1,775
Less NetTeller Allowance: ($178)
NetTeller Online Banking $ 425
Cash Management Module $ 5,000
Less Cash Management
Allowance: ($43)
Total NetTeller & Cash
Management: $ 8,750 $ 1,979
NOW THEREFORE, it is mutually agreed as follows:
1. XXX will furnish said Additional Services, which will be installed on
JHA's Service Bureau computer for Client's use.
2. Client covenants to XXX that said Additional Services will be used only
to process its own data, and for no other use or purpose.
3. Said Agreement is adopted, ratified and incorporated herein by reference,
and shall also govern the use of said Additional Services.
4. Client guarantees payment of all the above fees to XXX, together with
reimbursement of sales/use taxes (if and, and all XXX actual out-of-pocket
expenses including but not limited to travel, lodging, meals, telephone,
postage, and shipping costs.
5. Client will be required to purchase from XXX the hardware required to install
and run NetTeller-) software and any Additional Services.
A3/OM/I/S-NET-SB-10-01
6. This document and said Agreement shall be governed by the laws of
Missouri, and contain the entire agreement between the parties with respect to
the transactions contained herein, and they may be modified or changed only by a
written instrument signed by all parties hereto
7. The Monthly Charge for the NETTELLER ONLINE BANKING(tm) starts when the
NETTELLER ONLINE BANKING(tm) is fully installed. The initial Monthly Charge will
be prorated from the start date through the end of the month of installation.
8. The initial term of this Addendum shall be coterminous with the Data
Processing Service Agreement until terminated pursuant to the TERMINATION
section of said Agreement.
IN WITNESS WHEREOF, the parties thereto cause this Addendum to be duly executed
on this 17" day of December 2002.
XXX: CLIENT:
XXXX XXXXX & ASSOCIATES, INC. MISSION BANK
By: By: /s/ Xxxxx X. Xxxxxxx
Print/Type Name Print/Type Name Xxxxx X. Xxxxxxx
Title: Title: VP - CFO
Date: Date: 12-24-02
ABA #
A3/OM/I/S-NET-SB-10-01M Page 2
ADDENDUM TO DATA PROCESSING SERVICES AGREEMENT
WHEREAS, XXXX XXXXX & ASSOCIATES, INC., 000 Xxxx Xxxxxxx 00, Xxxxxx, XX 00000
("XXX") and MISSION BANK, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 ("Client")
entered into a DATA PROCESSING SERVICES AGREEMENT dated December 12, 2001
("Agreement"); and
WHEREAS, Client hereby requests XXX to furnish and install the following
Additional Services:
Additional Services Monthly Service Fee One Time Installation Fee
PowerPay(tm) $200 $6,500
NOW THEREFORE, it is mutually agreed as follows:
1. XXX will furnish said Additional Services, which will be installed on
JHA's Service Bureau computer for Client's use.
2. Client covenants to XXX that said Additional Services will be used only
to process its own data, and for no other use or purpose.
3. Said Agreement is adopted, ratified and incorporated herein by reference, and
shall also govern the use of said Additional Services. However, in regard to the
Additional Services the terms and conditions contained herein on Schedules A, B,
and C shall apply and shall prevail over any conflicting or contradictory terms
in the Agreement.
4. Client guarantees payment of all the above fees to XXX, together with
reimbursement of sales/use taxes (if any), and all XXX actual out-of-pocket
expenses including, but not limited to travel, lodging, meals, telephone,
postage, and shipping costs. In addition to the Monthly Service Fee listed above
Client will be required to pay the various charges associated with the
Additional Services as described on Schedule A attached. hereto.
AS/SB/POWERPAY 11-01 Page 1
5. Client will be required to purchase from XXX the hardware (if applicable)
required to install and run PowerPay software and any Additional Services. In
order to make use of the Additional Services Client will need to receive
processing using the XXX NetTeller software which shall be addressed in a
separate agreement.
6. This document and said Agreement shall be governed by the laws of
Missouri, and contain the entire agreement between the parties with respect to
the transactions contained herein, and they may be modified or changed only by a
written instrument signed by all parties hereto.
7. The Monthly Charge for the Additional Services starts when the Additional
Services are fully installed. The initial Monthly Charge will be prorated from
the start date through the end of the month of installation.
8. The initial term of this Addendum shall be coterminous with the Data
Processing Service Agreement until terminated pursuant to the TERMINATION
section of said Agreement. IN WITNESS WHEREOF, the parties thereto cause this
Addendum to be duly executed on this 17th day of December, 2002.
XXX: CLIENT:
XXXX XXXXX & ASSOCIATES. INC. MISSION BANK
By: By:
Print/Type Name Print/Type Name
Title: Title:
Date: Date:
AS/SB/POWERPAY 12-02 Page 2
SCHEDULE A - POWER-PAY SERVICES
PRICING PER BANK
MONTHLY RECURRING FEES
Monthly Per User Account Fee $1.25
Monthly Processing Fee $135.00
Per Transaction Fees
Monthly Transaction Volume $/Transaction
First 0 - 40,000 $0.34
Next 40,001 - 100,000 $0.33
Next 100,001 - 200,000 $0.32
Next 200,001 - 500.000 $0.31
Over 500,001 + $0.30
OTHER FEES
Each additional administration login to the Third Party Customer
Service Interface (One login included) $25.00 per month
These additional fees may be assessed by third parties:
Delete Electronic Payment $ 5.00
Re-credit Electronic Payment $ 1.00
XXX reserves the right to increase the above fees no more than once in any 12
month period. XXX will provide Client 30 days advance written notice of any fee
increase. XXX further reserves the right to terminate the Services provided to
Client and its Customers hereunder if Client is in breach of this or any other
agreement which Client has with XXX.
AS/SB/POWERPAY 12-02 Page 3
Schedule B
PowerPay Services Terms and Conditions
1. OPERATIONS.
PowerPay is intended to permit its Clients with whom it contracts to offer a
service to Client's customers ("User") to pay bills generated by billers and
merchants ("Billers") by use of computerized instructions to an on-line
information network. Each such xxxx payment shall be deemed a ("Transaction").
This system is comprised of proprietary software, computer programs and
computerized equipment, which i) creates electronic remittances to certain large
Billers with whom XXX or its third party vendor has contractual relations and
who are capable of receiving such remittances; and ii)comprised of proprietary
computer software and computerized check printing equipment for the generation
of laser-produced checks for the payment of remittances to Billers unable or
unavailable to receive electronic remittances; both which shall be jointly and
severally referred to as ("Services")
PowerPay service will process electronically initiated payment orders to third
parties pursuant to the preceding paragraph for Client's customers on any
"Business Day". Business Day as used throughout this Addendum is defined as
prior to 12:00 p.m. (noon) on any day that the Federal Reserve System is not
closed.
2. PAYMENT DEADLINES.
To allow for proper and timely posting to the payee's account XXX requires that
for check payments the account User must provide payment instructions at least
five (5) business days prior to the payee's due date and for electronic payments
the account User must provide funding and payment instructions for transactions
at least three (3) business days prior to the due date for the electronic
payments.
3. TERM and TERMINATION.
The original term of the Services to be provided herein shall be concurrent with
the then current term of the Agreement and shall thereafter renew pursuant to
the terms of the Agreement. Either party may terminate this agreement at the end
of any contract term provided that written notice to this effect is given to the
other party not less than ninety (90) days prior to the end of any contract term
It is understood that if proper notification is not given, the term will
automatically be renewed pursuant to the terms of the Agreement.
In the event that the Client provides timely notice to XXX as aforesaid of its
intention to terminate this agreement, this agreement shall terminate as
provided hereafter. In the event of such termination, the Client shall pay XXX
all direct expenses incurred by XXX in turning over to the Client all
information maintained by XXX and relating to data processing Services performed
by XXX for the Client. These expenses shall include, but shall not be limited
to, charges for computer run time and programming requirements in accordance
with XXX published rate schedules in effect at that tine. In the event that the
Client discontinues using XXX for the Services prior to the end of any contract
term, the Client will be liable to XXX for a lump sum early termination fee to
be calculated as the average monthly billing exclusive of pass through cost
including but not limited to, data lines, postage, Federal Reserve charges,
etc., for the past twelve months multiplied by the number of months and any
portion of a month remaining in the Services contract term. In the event that
any entity assumes the deposit liabilities of Client, such entity will
automatically assume the obligations and liabilities of Client hereunder for the
remaining contract term
AS/SB/POWERPAY 12-02 Page 4
Upon receipt of notice of Client's intention to deconvert from JHA's Services
the agreement termination and deconversion fees listed above shall become
immediately due and payable. Under no circumstances shall Client render payment
of these fees later than thirty(30) days after XXX has billed Client for them.
XXX reserves the right to cease providing ALL Services to Client if any amount
due to XXX under this Agreement or any other amount due XXX is not paid in a
timely fashion.
During the term of the Agreement and this agreement, Client shall not engage any
third party processor other than JH.A to provide the Services and shall not
perform the Services itself provided that XXX agrees to provide Services for the
geographic area and volume sizes that Client requires.
4. SECURITY and CONTROLS.
XXX will establish and maintain procedures and safeguards designed to protect
Client's information in JHA's possession equivalent to that used to protect
JHA's own information. XXX is not responsible for information while in transit
or in possession of non-XXX parties.
5. CONFIDENTIALITY.
JI-LA will not sell, disclose, nor permit access to information provided by its
financial institution customers for any purposes other than those specifically
required to fulfill JHA's contractual obligations with its financial institution
customers.
In the event any court or regulatory agency seeks to compel disclosure of said
information XXX will, if legally permissible, promptly notify its financial
institution customer of said attempt and will cooperate so that its financial
institution customer may at its expense seek to legally prevent this disclosure
of information.
6. AUDIT.
XXX shall cause a third party review of PowerPay System operations and related
controls, to be conducted annually by its independent auditors in accordance
with applicable regulatory and/or generally accepted, accounting procedures,
e.g. SAS 70, then in effect. XXX shall, upon receipt of written request.,
provide to Client one copy., at the actual reasonable out of pocket expense, of
the audit report resulting from said review.
7. CONTINGENCY PLANS.
XXX will provide safeguards determined at its discretion based upon applicable
FFIEC rules and regulations to ensure protection against destruction of records
and Software within its control by fire or other disasters, loss of data in
transit or machine or human error, or unauthorized manipulation of data or
reports insofar as can reasonably be expected using then current techniques
and/or then current accepted business practices for storage and transfer of
magnetic media. XXX maintains a disaster recovery plan with off-site data files
and communications facilities for the re-establishment of Services in the event
of a disaster at XXX.
8. THIRD PARTY PROVIDERS AND SUBCONTRACTING.
Client understands and agrees that XXX will use third party products and
services in connection with providing the Services. Some providers have certain
additional terms and service levels, found in Schedule C which Client agrees to
by virtue of signing this Addendum. Client agrees that XXX shall not have
financial or legal liability in connection with the performance or
non-performance of said third party products and services.
AS/SB/POWERPAY 12-02 Page 5
9. WARRANTIES; EXCLUSIVE REMEDIES AND LIMITATION OF LIABILITY.
XXX shall have no duties or responsibilities in regard to the Services except
those expressly set forth in Schedules A, B and C. The liability of XXX for any
and all damages and all actual loss caused by XXX for the Services shall not
exceed an aggregate total greater than the fees paid to XXX for the Services
during the previous twelve months of this Agreement less the various expenses
and pass through costs. Client shall provide XXX with all documentation
necessary to demonstrate any claimed loss by Client. XXX shall not be liable for
any loss which is settled or compromised by Client without prior written consent
of XXX. At the request of XXX, Client shall transfer and assign to XXX all
rights and remedies of Client with respect to any claim which is ultimately paid
by XXX.
The warranties contained herein shall be divided into the following categories:
Equipment:
XXX shall use its own Software and current equipment (or the software and/or
hardware of other third party providers as necessary) such as is indicated by
JHA's specific needs and Industry standards. All equipment shall be maintained
in a reasonable fashion which shall be compliant with industry standards. XXX
shall not be liable to Client or to any third party, including, but not limited
to, customers of Client, for errors resulting from defects or malfunctions of
the mechanical or electronic equipment used in performing its Services
hereunder.
Processing:
XXX warrants to provide the Services under this Agreement in a competent manner
consistent with industry standards. In the event that the Services provided by
XXX shall fail to meet the foregoing standard XXX shall diligently and in good
faith attempt to correct the Services without additional cost to Client. During
the period that XXX is so correcting its Services, Client shall not expect XXX
to provide any Services without compensation. If within a reasonable time XXX is
unable to correct the Services, Client shall be entitled to an equitable
reduction in fees paid to XXX for the defective Services. The remedies herein
contained are exclusive.
Security:
XXX shall use commercially reasonable efforts to insure the integrity of the
data of Client and its customers in regard to the Services considered herein.
However XXX hereby places Client on notice that the Services do involve the use
of the internet which is beyond JHA's reasonable control. Due to this fact the
data of Client and its customers will be transmitted across the internet and may
be susceptible to interception by sufficiently skilled parties. In order to
minimize this concern XXX will use then current industry standard methods to
assist in protecting the data of Client and User(s) in regard to the Services.
In the event that the data of Client or User(s) is intercepted and used, viewed,
modified, or retained by any third party in spite of these precautions then XXX
shall use its best efforts to assist Client in addressing this matter.
XXX shall not be liable or responsible to Client or to any third party;
including, but not limited to, customers of Client, for any consequential,
special, indirect, or incidental damages, even if XXX has been advised of the
possibility of such damages, except to the extent such damages result solely
from the willful misconduct. or gross negligence of XXX. Any liability of XXX to
Client resulting from failure to comply with the terms of this Agreement wherein
XXX shall become legally obligated to pay for damages resulting from any claim
arising from this Agreement shall be limited to the actual damages suffered by
Client and under no circumstances shall the total aggregate liability of XXX
under this Agreement exceed the fees paid by Client to XXX during the previous
twelve months of this Agreement
AS/SB/POWERPAY 12-02 Page 6
less the various expenses and pass through costs. The foregoing warranties set
forth in this Agreement are in lieu of all other warranties, express or implied,
whether of merchantability, fitness or otherwise.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
OR ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL XXX BE LIABLE FOR INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES.
10. LIMITATIONS of LIABILITY.
Neither XXX or Client is liable for a failure to perform or any loss arising out
of an event or condition beyond the reasonable control of said party or for a
failure to fulfill its obligation hereunder due to an event of "force majeure"
(herein defined as acts of God, public disaster, fire, flood, not, war, labor
strikes/disputes, judicial orders/decrees, government laws/regulations, or
interruptions of communications, ACH or other payment networks, transportation
or electricity). Any liability of XXX or any third party Provider contemplated
herein for any loss, damage, or cost hereunder shall be limited to actual direct
damages incurred by Client, but in no event shall the total aggregate liability
of XXX or any third party provider exceed the total fees paid by Client to XXX
under this Agreement and attributable to said party (either XXX or any third
party Provider) during the most recent twelve month period prior to the accrual
of the action, nor shall any amount of the liability include any indirect,
consequential, punitive or special damages incurred by Client. XXX is not liable
for any late charge assessed by any third party against customer of Client.
Client shall be responsible for, and indemnify XXX against, all claims by User
relating to the authorization of XXX to provide Services on behalf of User as
well as the attendant results from the provision of said Services including but
not limited to insufficient funds, repudiation of authorization for payment, and
late fees. XXX reserves the right to change the terms and conditions contained
within Schedule B and Schedule C by providing Client thirty (30) days advance
written notice, with the exception of Section 3. Term and Termination.
11. LEVELS of SERVICE and XXX RESPONSIBILITIES.
Paper Remittances.
Provided XXX receives good, valid, and complete payment data specifying a pay to
party which is not included in the third party provider's electronic pay to
party database as a valid pay to party who accepts electronic remittances, XXX
shall by the next Business Day deposit a check into the United States Mail,
first class postage prepaid, addressed to such pay to party (or its duly
authorized processor) imprinted with data required for such pay to party to post
payment on behalf of the consumer named in the payment data. Each such paper
check created by XXX shall meet or exceed the standards set by the American
Banker's Association for check instruments and MICR encoding requirements. XXX
makes no representations or warranties with respect to the handling and posting
of the paper payments by the addressee. In addition, XXX shall not be
responsible for making payments until it has received good and available funding
for such payments from Client.
Electronic Remittances.
Provided XXX receives fully funded, good, valid, and complete payment data
specifying a pay to party which is included in the third party provider's
electronic pay to party database, XXX shall by the next Business Day pass all
attendant payment data and funding to the third party provider for processing.
Said third party provider processing shall follow the procedures defined in
Schedule C.
12. CLIENTS RESPONSIBILITES
Enrollment of Users . Client will obtain from each individual who desires to
access the Services or any
AS/SB/POWERPAY 12-02 Page 7
portion thereof, an agreement or authorization, in such form as is developed by
Client, to access the Services (the "User Agreement"). The User Agreement will
include, without limitation, the User's authorization to allow Client, and third
parties on Client's behalf, to provide the Services to User and, if applicable,
authorization for Client or its subcontractor to initiate ACH debits to the
Users DDA Account. Client agrees to cooperate with XXX and provide XXX with all
necessary information and assistance required for XXX to successfully make the
Services operational and available to Client. Client agrees that XXX is under no
obligation to provide any User with access to the Services unless and until
Client has provided XXX with all information and documentation required by XXX
for User set-up.
Disclosures.
Client will provide User(s) with all disclosures required under all applicable
federal, state and local laws. rules and regulations ("Applicable Law")
necessary to have access to the XXX Services, specifically including, without
limitation, the initial disclosures required under Regulation E of the Federal
Reserve Board (the "Initial Disclosures"). Client shall include in the initial
Disclosures the appropriate telephone number or email address (which may be a
telephone number or e-mail address maintained by Client or a telephone number
maintained by XXX) for User(s) to contact with questions about the Services, and
a statement that Client may require written confirmation of any oral notice of
billing errors.
Compliance with Laws.
Client shall be responsible for compliance with all applicable laws and
regulations including, without limitation, compliance with error and dispute
resolution procedures specified under the Electronic Funds Transfer Act of 1978
and the regulations and interpretations promulgated there under (including
without limitation, Regulation E of the Federal Reserve Board) relating to
Client's use of the Services.
AS/SB/POWERPAY 12-02 Page 8
Schedule C
Third Party Provider Service Level Compliance Agreement
I. REMITTANCE PROCESSING
A) Electronic Remittances Through the Provider System
The third party providing the PowerPay electronic settlement shall henceforth be
called "Provider" and the customer of Client who initiates a payment using the
PowerPay System shall henceforth be called "Payor". Payor is synonymous with
User as described and used elsewhere herein. Within two (2) Business Days after
receipt of each fully funded, good, valid, and complete payment data, Provider
shall accurately post remittance data to the Payor's account at a "Provider
Xxxxxx" (a Xxxxxx who has been established by Provider, at Provider's sole
option, of being capable of receiving remittance data through the Provider
System). The form and substance of such remittance data shall be determined by
Provider in its sole discretion so long as such remittances are of form and
substance adequate fu provider to achieve compliance with the foregoing.
Provider shall not be responsible for making electronic payments until it
receives good and available funding for such payments from Financial
Institution. in an amount matching the total amount of payment data. The funds
for payments made electronically shall be distributed to Provider Billers in
accordance with the requirements of the Provider Billers.
B) Electronic Remittances Outside the Provider System
If Provider decides to electronically transmit remittance data to a "Xxxxxx" who
is not a Provider Xxxxxx it shall deliver and transmit such remittance data.
through another payment network to the designated Xxxxxx within the next
Business Day after the date that accurate and complete payment data is received
from XXX and funds in an amount matching the total amount of such payment data
are received from the Financial Institution.
II. CUSTOMER SERVICE/RESEARCH
Provider understands that hit quality service results in a lover volume of
inquiries by Payors or XXX or Clients. Therefore, Provider shall operate and
provide Provider Services at a level that results in a percentage of inquiries
compared to the number of Transactions during each month of less than 2%.
Provider will accept payment research investigations as early as five (5)
Business Days from the date the payment is remitted by Provider (A Payment
Processing Date) for Electronic Payments.
Of the inquiries:
- 100% shall be acknowledged within 24 hours
- 90% shall be resolved within 2 Business Days
- 95% shall be resolved within 3 Business Days
- 98% shall be resolved within 4 Business Days
All remaining inquiries shall be addressed or an individual basis, and resolved
as quickly as is reasonably possible.
AS/SB/POWERPAY 12-02 Page 9
Resolving payment inquiries frequently requires that research be performed by
the payee involved. Provider will work with the payee to resolve the inquiry
promptly before it refers XXX or Financial Institution back to the payee.
Proactive follow up will consist. of the following: (i) where Provider is able,
Provider will provide the payee with copies of checks or ACH transmittal
confirmations as necessary for the payee to complete its research and post the
payment correctly, and (ii) Provider will notify XXX or Financial Institution
regarding the status of the inquiry.
III. SYSTEMS PERFORMANCE
Provider shall maintain the Provider System, including but not limited to
computers, communications equipment, and other equipment necessary to provide
the Provider Services and to support the Provider System so that it is fully
operational at least 99% or better of the hours Provider Services are to be
provided, as designated hereinafter (not including scheduled downtime mutually
agreed upon by Provider and JI-LA or Client). Provider will notify XXX or Client
at least four (4) hours prior to any anticipated maintenance or scheduled
downtime, subject to the hours of operation specified below. If a problem with
the Provider System occurs that cannot: be resolved promptly, Provider will
notify XXX or Client of the problem and diligently pursue a permanent solution
to correct the problem and restore the Provider System to full operational
status and will continue such efforts until the problem is satisfactorily
corrected.
Provider will provide for Remote Customer Service Database Up Time 7 days per
week, 52 weeks per year. Up Time will be the 20 hours between 6:00 a.m. and 2:00
a.m. ET. This standard will be met at least 95% of the time, excluding regularly
scheduled maintenance. Regularly scheduled system maintenance downtime occurs on
the first Sunday of every month from 12:01 AM to 8 AM, Eastern Time.
IV. SYSTEMS CAPACITY PLANNING AND CAPABILITY
Provider shall maintain the Provider System, including but not limited to
computers, communications equipment, and other equipment necessary to provide
the Provider Services and to support the Provider System so that when the number
of transactions submitted by XXX on each Business Day peaks, the Provider System
will be fully operational at no more than 80% of peak capacity. If wide area
network connectivity is required by XXX or Client, XXX or Client must be the
initiator of the order and must be responsible for the maintenance and upkeep of
the communication link.
V. HOURS OF OPERATION
Provider shall fully operate its Provider System and provide Customer Services
as defined in Schedule B continuously from 6 AM ET Sunday through midnight
Saturday (i.e., no files will be processed from 12:01 AM ET Sunday through 6 AM
ET Sunday).
AS/SB/POWERPAY 12-02 Page 10
XXXX XXXXX AND ASSOCIATES, INC.,
DATA PROCESSING SERVICES AGREEMENT
This Agreement, entered into this 12th day of December, 2001, between:
MISSION BANK 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx, XX 00000
hereafter called "Client" and
Xxxx Xxxxx and Associates, Inc. 000 Xxxxxxx 00 Xxxxxx, XX 00000
hereafter called "XXX".
XXX is in the business of providing data processing services throughout its
trade area and Client is desirous of .securing such services from XXX.
Therefore, on the date first noted above, the parties do hereby agree as
follows:
1. Description of Services
Client hereby contracts for and XXX hereby agrees to furnish, on the terms and
conditions hereinafter set forth, the data processing services ("SERVICES")
which are enumerated on Exhibit "A" attached to and a part of this Agreement.
Upon the completed execution of this Agreement Client and XXX shall mutually
proceed in good faith i) to promptly develop a detailed plan for the conversion
of Client to the Services ii) to define a mutually acceptable schedule for the
training of Client's personnel with respect to the conversion to and the
implementation of the Services.
2. Term of Agreement
The original term of this agreement shall be for five (5) years with a
commencement date of either the day of conversion to the new XXX system, or 240
days after the date of this Agreement, which ever occurs first. This Agreement
shall be automatically extended for successive terms of one year from the
expiration date of the original term. Either party may terminate the Agreement
at the end of any contract term provided that written notice to this effect is
given to the other party not less than 90 days prior to the end of any contract
term. It being understood that if proper notification is not given, the term
will automatically be renewed for one year
In the event that the Client provides timely notice to XXX as aforesaid of its
intention to terminate this Agreement, this Agreement shall terminate as
provided herein. In the event of such termination, the Client shall pay XXX all
direct expenses incurred by XXX in turning over to the Client all information
maintained by XXX and relating to data processing Services performed by XXX for
the Client. These expenses shall include, but shall not be limited to, charges
for computer run time and programming requirements in accordance with XXX
published rate schedules in effect at that time.
In the event that the Client discontinues using XXX for processing prior to the
end of any contract term, the Client will be liable to XXX for a lump sum early
termination fee to be calculated as the average monthly billing exclusive of
pass through cost including, but not limited to, data lines, postage, Federal
Reserve charges, etc., for the past twelve months multiplied by the number of
months and any portion of a month remaining in the contract term. In the event
that any entity assumes the deposit liabilities of Client, such entity will
automatically assume the obligations and liabilities of Client hereunder for the
remaining contract term.
SBJHA-10-01 Page 1 of 12
Upon receipt of notice of Client's intention to deconvert from JHA's service
bureau the agreement termination and deconversion fees listed above shall become
immediately due and payable. Under no circumstances shall Client render payment
of these fees later than thirty days after XXX has billed Client for them. XXX
reserves the right to cease providing ALL Services to Client if any amount due
to XXX under this Agreement or any other amount due XXX is not paid in a timely
fashion.
Subject to revisions as provided for hereafter, the Schedule of Service Fees
will remain in effect for the term of the Agreement. At the end of each twelve
(12) month period during the term, XXX may increase the Schedule of Service Fees
then in effect by such an amount as XXX determines to be appropriate; provided,
however, that XXX may not at that time increase the service fees in effect by a
percentage greater than the percentage increase during the preceding twelve (12)
month period in the "Consumer Price Index - Seasonally Adjusted US City Average
for All Items for all Urban Consumers (1982-84 = 100)" published monthly in the
"Monthly Labor Review" of the Bureau of Labor Statistics of the United States
Department of Labor or, should that index cease to be published, the most
comparable index published on a regular basis by the US Government. XXX will
provide a ninety (90) day advance written notice to Client before such changed
fees go into effect.
During the term of this Agreement, Client shall not engage any third party
processor other than XXX to provide the Services and shall not perform the
Services itself provided that XXX agrees to provide Services for the geographic
area and volume sizes that Client requires.
3. Ownership and Confidential Nature of Computer Software and Material
During the term of this Agreement, XXX covenants to furnish and maintain, on its
premises and at its cost, all of the equipment which it deems necessary to
perform the Data Processing Services. XXX retains the right to move the
equipment to any other location provided that such change will not materially
alter the Services XXX provides to Client as specified in this Agreement. During
the term of this Agreement, Client covenants to furnish and maintain, on its
premises and at its cost, all of the equipment and materials specified by XXX as
being necessary for Client to receive, transmit and otherwise utilize the data
processing Services specified in Exhibit "A". The Client shall also notify XXX
of the anticipated commencement of on-line Services through new or additional
terminals or the opening of new branches at least thirty (30) days in advance of
the commencement of such Services so as to enable XXX to arrange for necessary
communication lines and with the understanding that the, scheduled
implementation date of such new on-line support may be dependent on the delivery
schedules of third party vendors. The Client agrees to reimburse XXX when billed
for charges, or the Client's portion of charges pro-rated among those Clients
served, for communication lines or devices or installation of communication
lines or devices arranged and paid for by XXX on behalf of the Client. Any
equipment leased by XXX to Client shall be maintained in accordance with the
provisions of a separate lease agreement.
All data processing Software, specifications, documentation (including manuals,
routines, sub-routines, or techniques, herein collectively called "Software")
and original ideas or formulae relating to data processing or other handling or
treatment of data (herein collectively called "Ideas''), are and shall remain
the sole, confidential, trade secret property of XXX. It is agreed that the
Client will not copy related materials or divulge the contents of said Software
and Ideas to any third party without permission for such disclosure or use being
granted in writing by XXX.
The Client shall reimburse XXX for any prior agreed upon costs incurred by XXX
in developing customized Software or modifications to Software to satisfy the
requirements of the Client or the Client's independent auditors, including the
cost of the computer time to run said Software. During the term of this
Agreement XXX shall as necessary install the then most current copy of the
Software and any program temporary fixes "PTFs". The installation of these
Software and PTFs is necessary to enable XXX to continue processing Client's
data in an accurate and timely fashion. As a result of these Software updates
and PTFs it may be necessary for XXX to retrofit Client's customized code, if
any, in order to guarantee its compatibility with the then current version of
the Software. Client shall reimburse XXX for such retrofitting of Client's
customized code at JHA's then current rates for such Services. It is further
agreed that such customized Software or modifications will remain the property
of XXX and, as such, XXX has the right to use said Software or modifications in
providing Services to other financial institutions.
SBJHA-10-01 Page 2 of 12
4. Transportation of Data
In the event that Client desires that XXX provide Proof of Deposit Services,
Image Capture Services or MICR recognition Services the following section shall
apply regarding the transportation of the items to be so serviced.
The parties acknowledge that reliable transportation of Client's input data and
its processed work is necessary for XXX to perform in accordance with the
Agreement. Accordingly; Client may either provide its own transportation of both
the input data and processed work or it may elect to authorize XXX to contract
for an authorized carrier to provide the transportation services and/or utilize
JHA's own or its agent's vehicles to transport Client's input data and processed
work for a fee as shown in Exhibit "A".
In the event Client elects to authorize XXX to provide the transportation
services and XXX elects to contract for a carrier to provide the necessary
transportation services, such services will be rendered under the terms and
conditions of a contract between XXX and said carrier or courier which such
contract shall be made a part hereof by reference. XXX reserves the right to
change carrier or couriers from time to time during the term of this Agreement.
Client has the right to obtain from XXX a copy of the contract which is in
effect upon written request to XXX. Client agrees that it is a third party
beneficiary of said contract and any other which XXX may elect to become a party
to during the term of this Agreement. As such, it agrees to be bound by and
subject to all terms and conditions of these courier contracts, which shall be
standard courier contracts, including, but not by way of limitation, any
limitation of liability provisions. It is the intent of the parties that JHA's
liability to Client or third parties for losses in transit, if any, shall be the
same as the liability of the carrier to XXX under its Agreement.
In the event XXX elects to utilize its own or its agent's vehicles to render the
transportation services necessary for the performance of this Agreement, then
the parties agree to be bound by a Compensation Schedule for such services,
which shall be mutually agreed upon. Accordingly the same limitation of
liability provisions as provided in standard courier contracts or such
additional agreements as may be required by XXX to perform such courier services
shall apply whether any claim is by XXX and/or Client against the authorized
carrier or Client against XXX utilizing its own or its agent's vehicles.
5. Examination
The records maintained by XXX for the Client shall be subject to examination by
those Federal or State agencies having jurisdiction over the Client to the same
extent that such records would be subject to examination were they maintained
and produced by the Client on its own premises, and XXX is authorized to provide
the representatives of such agencies access to such records. Reasonable expenses
incurred by XXX on the Client's behalf during the course of such examination
may, at JHA's sole discretion, be charged to the Client by XXX with itemized
accounting of such expenses.
6. Responsibility for Data
All records transmitted to XXX by Client shall remain the property of the
Client. In order to meet the requirements of the Xxxxx-Xxxxx-Xxxxxx Financial
Modernization Act, XXX and Client each agree that all information communicated
to it by the other, including the terms and conditions of this Agreement;
whether before the effective date or during the term of this Agreement, shall be
received in strict confidence, shall be used only for the purposes of this
Agreement, and that no such information shall be disclosed by the recipient
party, its agents or employees without prior written consent of the other party,
unless such information is publicly available from other than a breach of this
provision. Each party agrees to take all reasonable precautions to prevent the
disclosure to outside parties of such information, including without limitation,
the terms of this Agreement except as may be necessary by reason of legal,
accounting or regulatory requirements beyond the reasonable control of XXX or
Client, as the case may be.
SBJHA-10-01 Page 3 of 12
XXX will use reasonable care in the processing of the accounts for the Client
and reports to the Client. The Client agrees to promptly check and verify all of
the reports received from XXX to ascertain that all data has been processed and
reported correctly, and to report any discrepancies to XXX not later than three
(3) business days following receipt of such reports. Business days will be
defined to be Monday through Friday, from 8:00 A.M. to 5:00 P.M. EST. Failure to
report any discrepancies within the time prescribed in the previous sentences
shall constitute a conclusive presumption that such reports are correct and
accurate.
XXX will provide safeguards determined at its discretion to ensure protection
against destruction of records and Software by fire or other disasters, loss of
data in transit or machine or human error, or unauthorized manipulation of data
or reports insofar as can reasonably be expected using then current techniques
and/or then current accepted business practices for storage and transfer of
magnetic media.
XXX maintains a disaster recovery plan with off-site data files and
communications facilities for the reestablishment of Services in the event of a
disaster at XXX and agrees to make such backup processing capability available
to the Client in the event of a major disaster at XXX.
7. Warranties, Exclusive Remedies and Limitation of Liability
XXX shall have no duties or responsibilities except those expressly set forth in
this Agreement. The liability of XXX for any and all damages and actual loss
caused by XXX under this Agreement shall not exceed an aggregate total greater
than the fees paid to XXX during the previous twelve months of this Agreement
less the various expenses and pass through costs defined on Exhibit A. Client
shall provide XXX with all documentation necessary to demonstrate any claimed
loss by Client. XXX shall not be liable for any loss which is settled or
compromised by Client without prior written consent of XXX. At the request of
XXX, Client shall transfer and assign to XXX all rights and remedies of Client
with respect to any claim which is ultimately paid by XXX.
The warranties contained herein shall be divided into the following categories:
Equipment:
XXX shall use its own Software and current equipment such as is indicated by
JHA's specific needs and Industry standards. All equipment shall be maintained
in a reasonable fashion which shall be compliant with industry standards. XXX
shall not be liable to Client or to any third party, including, but not limited
to, customers of Client, for errors resulting from defects or malfunctions of
the mechanical or electronic equipment used in performing its Services
hereunder.
Processing:
XXX warrants to provide the Services under this Agreement in a competent manner
consistent with industry standards. In the event that the Services provided by
XXX shall fail to meet the foregoing standard XXX shall diligently and in good
faith attempt to correct the Services without additional cost to Client. During
the period that XXX is so correcting its Services, Client shall not expect XXX
to provide any Services without compensation. If within a reasonable time XXX is
unable to correct the Services, Client shall be entitled to an equitable
reduction in fees paid to XXX for the defective Services. The remedies herein
contained are exclusive.
ATM Services:
XXX shall not be liable to Client or to any third party, including, but not
limited to, customers of Client, for any loss, damage, cost or expense arising
from the use of any lost or stolen ATM cards; failure or delay in making a
requested transfer; erroneous transfers; liability by reason of insufficiency of
funds in any account; unauthorized transfers; and failure to comply with state
or federal laws, rules or regulations.
XXX shall not be liable for delays or failures in the performance or completion
of any of its obligations under or with respect to this Agreement beyond its
reasonable control including, but not limited to, delays caused in whole or in
part by acts of civil or military authority, riots, epidemics, war, governmental
regulations, strikes, lockouts, labor difficulties, fire, hurricanes, flood,
insurrection, catastrophes, failures of transportation, communications or power
supply, unavoidable mechanical difficulty with its computer equipment, acts of
God, or other causes beyond its control or due to third parties.
SBJHA-10-01 Page 4 of 12
XXX shall not be liable or responsible to Client or to any third party,
including, but not limited to, customers of Client, for any consequential,
special, indirect, or incidental damages, even if XXX has been advised of the
possibility of such damages, except to the extent such damages result solely
from the willful misconduct or gross negligence of XXX. Any liability of XXX to
Client resulting from failure to comply with the terms of this Agreement wherein
XXX shall become legally obligated to pay for damages resulting from any claim
arising from this Agreement shall be limited to the actual damages suffered by
Client and under no circumstances shall the total aggregate liability of XXX
under this Agreement exceed the fees paid by Client to XXX during the previous
twelve months of this Agreement less the various expenses and pass through costs
defined on Exhibit A. The forgoing warranties set forth in this Agreement are in
lieu of all other warranties, express or implied, whether of merchantability,
fitness or otherwise.
8. Billing and Payment for Services
The Client agrees to accept the Services and equipment described in this
Agreement and in the attached Exhibit "A" and Exhibit "B"(If applicable) and to
pay XXX all amounts due hereunder in accordance with such Exhibits. Following
the end of each billing period, XXX shall xxxx the Client for all amounts due
XXX hereunder for such billing period (including, but not limited to, all
standard repetitive charges, all charges for additional requested Services, and
other charges incurred by the Client whether contemplated by this Agreement or
agreed to by independent written contract or verbal contract or otherwise
requested). Payment shall be made by the Client when invoice is rendered.
Payment of all invoice amounts not received by XXX within 30 days of invoice
date shall bear interest at the rate of 1.5% per month (18% per year) until
paid.
9. Magnetic Ink Character Recognition
XXX requires that the magnetic ink character recognition (MICR) line printed on
certain Client input documents conform to standards acceptable to XXX. XXX shall
not be liable for failure of its equipment to read the Client's input documents,
nor for any subsequent errors in transmission of data or printed listing if the
MICR specifications are not adhered to. Items returned in error or processed in
error due to the inability of XXX equipment to read unacceptable MICR of any of
the Client's input documents shall be the sole liability of the Client. Upon
request, XXX will furnish the Client with detailed specifications for acceptable
MICR standards.
10. Severability
If any provision of this Agreement or the application of any provision to either
party or third person should be held invalid by a court of law, the remainder of
this Agreement or the application of such provision to the parties or third
parties other than those to which it is held invalid, shall not be affected
thereby and shall remain in full force and effect.
11. Entire Agreement
This Agreement including Exhibit A attached and Exhibit B (Exhibit B is attached
in the sole instance that Client will receive Item Processing Services from XXX)
constitutes the sole and entire Agreement between XXX and the Client pertaining
to the provision of subject Data Processing Services and supersedes all prior
agreements and understandings of the parties in connection therewith.
XXX makes no representations or warranties, expressed or implied, by operation
of law or otherwise, except those expressly stated herein. This Agreement shall
not be modified, amended, rescinded or waived in whole or in part except by a
duly executed written document signed by the parties.
This Agreement and the exhibits and schedules attached hereto shall be governed
by the laws of the State of Missouri, and the rules and regulations of the
appropriate financial institution regulatory agencies. The parties hereto bind
themselves and their successors and assigns to the faithful observance and
performance of this Agreement and the terms and conditions hereof, provided that
the Client shall not assign its rights hereunder without the prior written
consent of XXX.
SBJHA-10-01 Page 5 of 12
All notices required by this Agreement shall be sent via certified or registered
mail, return receipt requested, postage prepaid, addressed to XXX at:
Xxxx Xxxxx and Associates, Inc. 000 Xxxxxxx 00 Xxxxxx, XX 00000 Attention:
President
and to the Client at:
MISSION BANK 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx, XX 00000 Attention: President
The notice shall be deemed delivered on the earlier of the actual date of
delivery or four days after mailing.
12. Audit Responsibility
XXX shall cause to be performed, on an annual basis, a third party operational
review of its data processing centers. A copy of the most recently completed
audit for Client's servicing center will be made available upon written request
to the manager of the center. XXX shall, upon request, schedule a mutually
convenient time whereby Client audit representatives may visit the processing
center for - further audit needs.
Client should review on a daily basis any audit, maintenance and exception
reports available from XXX.
13. Time frames for Receipt and Delivery of Work XXX shall make available the
following:
Access to on-line files between 7:00 A.M. and 7:00 P.M. daily.
Access to print spool files for initiating of report printing at Client location
between 6:00 A.M. and 7:00 P.M. daily.
Additional access to on-line and print files may be made available upon request
by Client.
Client shall make data available to XXX for daily processing as follows:
Maintenance transactions for new and existing Client customers by 7:00 P.M.
MICR data file transmissions for items processed and captured by Client or a
third party processor by 7:00 PM. Later availability times may be made available
on written request by Client for exception conditions. Late delivery of these
items will result in the assessment of additional fees by XXX.
XXX recognizes that availability of certain data required for processing of
Client's work (such as ATM and ACH transactions) may not be under Client's
direct control. XXX will make reasonable efforts to accommodate the processing
time frames of these other providers.
For Clients utilizing backroom check processing services of XXX, a courier
pickup and delivery schedule will be developed prior to implementation to allow
for adequate check clearing time frames.
If the installation requires XXX to have access to another vendors Software
being used by Client, Client will obtain any required permission for JHA's
access; and Client will pay any charges or fees made by said vendor. In this
connection XXX will agree to treat said vendor's software as confidential and
proprietary to said vendor.
SBJHA-10-01 Page 6 of 12
14. Notification of Changes
XXX shall notify Client in advance of any changes that would affect Client
procedures, system access or functionality, reports, processing time frames or
related areas.
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate as of
the date first written above.
By: /s/ Xxxx Xxxxx MISSION BANK
0000 Xxxxxxx Xxxxxx
Title: VP & CFO Xxxxxxxxxxx, XX 00000
Date: 2/19/02
By: /S/ Xxxx Xxxx XXXX XXXXX & ASSOCIATES, INC.
000 Xxx. 00
Title: Chief Operating Officer Xxxxxx, XX 00000
Date: 2/23/02
SBJHA-10-01 Page 7 of 12
EXHIBIT "A"
ADDENDUM TO DATA PROCESSING A GREEMENT
Monthly Processing Costs will be as follows:
Base Processing Fee includes the following applications:
Customer Information File Account Analysis
Demand Deposit Accounting Customer Profitability
Savings & Club Accounting Accounts Payable
Loans (All types) Overdraft Protection
Time Deposit Accounting Home Equity Loans
Repurchase Agreements Loan pricing
Individual Retirement Accounting Cash Sweep
General Ledger ACH Origination
Safe Deposit Box Accounting Executive Reminder System
Stockholder Accounting Account Reconciliation
Automatic Funds Transfer System Audit Confirmations
Loan Collections
Base Processing Fee will remain fixed for the term of the Agreement for up to a
total of 3,107 Deposit and Loan accounts (regardless of account status or
activity).
MONTHLY COSTS:
Base Processing Fee $2,390
Includes up to 10 devices)
Additional 10 Devices $300
Telephone Line Charges (Estimated) Actual
Additional Monthly Fees:
ACH Fed-Line Interface N/C
Inclearing via Fed N/C
Call Reporter Interface N/C
Enhanced Statements $100
ATM Positive Balance File including Debit Card Transactions $200
Streamline Platform Automation (Deposits Only) $450
On-Line XXX Integration $100
XXX Xxxxxx-Host Based Teller Automation System (10 workstations) $250
SIGMASTER $100
CTRMASTER $100
BONDMASTER $100
CHECKMASTER $100
ISOSCELES $100
(Additional workstations may be added at a cost of $75 per workstation
per month assuming only above listed modules are licensed.)
PinPoint Report Retrieval $350
Item Processing per attached detail $2,086
TOTAL MONTHLY COSTS: $6,726
SBJHA-10-01 Page 8 of 12
ONE TIME COSTS
CIF 20/20 Conversion-Installation $0
Education
- Parameter Training
4.5 days in Charlotte, N.C. for up to 3 people. Parameter and product
plan training to facilitate conversion planning activities. Each additional
person $500.
- On-Site Training
3.5 days training at financial institution location. Training financial
institution staff on daily functions. (Financial institution provides training
room and equipment) Each additional day 51,200.
- Network Connectivity Training
Includes 2-days on-site to train financial institution staff or network
vendor on XXX connectivity standards, device naming conventions, IP addressing,
terminal emulation and GUI configuration, printer
setup and other information as needed. Additional installation assistance
available for $175.00 per hour.
Phone Line Installation (Estimated) $ 0
ACH Fed-Line Interface $ 0
Inclearing via Fed $ 0
Call Reporter Interface $ 0
Enhanced Statements $ 0
ATM Positive Balance File including Debit Card Transactions $ 0
Streamline Platform Automation (Deposits Only) $ 3,000
XXX Xxxxxx-Host Based Teller Automation System $ 6,500
(Includes only modules listed in monthly cost section)
PinPoint Report Retrieval $ 2,000
Item Processing per attached detail $ 0
SUBTOTAL: $11,500
LESS XXX ALLOWANCE (PINPOINT): $(2,000)
TOTAL INSTALLATION/TRAINING CHARGES $ 9,500
Client will pay additional costs beyond monthly processing charges as follows:
- All telecommunication line costs, charges, expenses and installation fees
at actual cost (if different from those indicated).
- All costs, expenses and charges attributable to i) the sorting, mailing
and/or transmission of reports or other output to Client or its designees, and
ii) the transportation, transmission or delivery of such reports and other
materials between the facilities of XXX at which the Services are provided and
the delivery points of Client (other than routine courier services to the extent
that they may be covered in Section "4. Transportation of Data".
- All costs, expenses and charges incurred by XXX at Client's request
including costs, expenses and charges attributable to travel, photocopy and data
and record storage and retrieval, to the extent that such charges and expenses
are billed by XXX.
- All costs expenses and charges attributable to the supplies and postage
used, purchased or incurred in the preparation and mailing of periodic
statements to customers of Client, including paper stock, envelopes, and other
related charges which are billed by XXX.
- All Federal Reserve Bank, clearing house, regulatory agency other third
party clearing charges and all costs expenses and charges attributable to
such charges.
SBJHA-8-01 Page 9 of 12
- Hardware maintenance charges onsite at Client's location equipment.
- Any forms and supplies related to Client's printing requirements.
- All charges associated with the costs, charges and expenses for software
licensing and customization, hardware and other equipment.
- A monthly minimum fee equal to 70% of the monthly fees shown on Exhibit
"A" and Exhibit "B" (if applicable). This minimum fee shall be subject to offset
to the extent that Client's actual processing fees exceed it and shall begin as
of the earlier of the date the Client begins using XXX Services under this
Agreement or 240 days from the date of this Agreement.
- Costs associated with external reporting via magnetic media, such as
Credit Bureau Reporting, including a cost of $75.00 per tape generated.
- Travel and out of pocket expenses of conversion/education personnel
traveling to Client location.
By: /s/ Xxxx Xxxxx MISSION BANK
0000 Xxxxxxx Xxxxxx
Title: VP & CFO Xxxxxxxxxxx, XX 00000
Date: 2/19/02
By: /S/ Xxxx Xxxx XXXX XXXXX & ASSOCIATES, INC.
000 Xxx. 00
Title: Chief Operating Officer Xxxxxx, XX 00000
Date: 2/23/02
SBJHA-8-01 Page 10 of 12
SCHEDULE OF SERVICE FEES
# OF ACCOUNTS PRICE PER ACCOUNT
4000 $ 1
5000 0.8500
6000 0.7500
7000 0.6786
8000 0.6250
9000 0.6050
10000 0.6000
11000 0.5950
12000 0.5900
13000 0.5850
14000 0.5800
15000 0.5750
16000 0.5700
17000 0.5650
18000 0.5600
19000 0.5550
20000 0.5500
21000 0.5450
22000 0.5400
23000 0.5350
24000 0.5300
25000 0.5250
26000 0.5200
27000 0.5150
28000 0.5100
29000 0.5050
30000 0.5000
31000 0.4990
32000 0.4980
33000 0.4970
34000 0.4960
35000 0.4950
36000 0.4940
37000 0.4930
38000 0.4920
39000 0.4910
40000 0.4900
41000 0.4890
42000 0.4880
43000 0.4870
44000 0.4860
45000 0.4850
46000 0.4840
47000 0.4830
48000 0.4820
49000 0.4810
50000 0.4800
51000 0.4790
52000 0.4780
53000 0.4770
54000 0.4760
SBJHA-8-01 Page 11 of 12
EXHIBIT "B"
Check Image Processing Proposal
MISSION BANK
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
XXX and Bank will develop an item delivery schedule to allow for acceptable
processing and clearing. XXX will provide item encoding functions, capture MICR
and Images, deliver transit items to the Federal Reserve, perform all sorting
and statement rendering functions. We will return the items to the bank daily
for retention and subsequent destruction. Bank agrees to separate single
item deposits into a separate Special Handling envelope and include an adding
machine listing of items to be used as a balancing total.
Services Price Volumes Costs
Proof Encoding 0.0250 16,091 402.28
Proof Adjustments 2.5000
Total Proof Services 402.28
Image Capture 0.0300 29,785 893.55
Reject Re-Entry 0.0800 414 33.12
Cash Letter Processing 50.00 1 50.00
Exception Item Pulls 200.00 1 200.00
Special Serial Sorts
(per Account) 25.00 - -
Total Item Capture Services 1,176.67
Image Statement Processing 0.3500 711 248.85
Non Image Statements w/Checks 3.5000 24 84.00
Non Image Savings Statements 0.1000 215 21.50
Statement Printing, per page,
Single Sided 0.0500 3,057 152.87
Statement Printing, per page,
Double Sided 0.1000 - -
Statement Inserts 0.0100 - -
Item Research 2.5000 - -
Return Item Processing 1.2500 - -
Total Statement Services 507.22
Courier Expenses* 0.0000 - -
Microfilm Expenses* 0.0000 - -
Postage Expenses* 0.0000 - -
SBJHA-8-01 Page 12 of 12
CONTRACT MODIFICATION
WHEREAS, XXXX XXXXX & ASSOCIATES, INC. (XXX) entered into a Data Processing
Services Agreement (Agreement) dated December 12, 2001 with MISSION BANK, 0000
Xxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 (Client).
NOW THEREFORE, XXX and Client mutually contract and agree that said Agreement is
modified as follows:
1. The "DATA PROCESSING SERVICES AGREEMENT" is changed and modified as follows:
l. In Section "2. Term of Agreement":
A. Following the second subparagraph insert the following new subparagraph:
"In the event that Client deconverts from the XXX Data Processing Service, XXX
will provide Client with one set of test tapes with appropriate file layouts,
and one set of final deconversion tapes. Each set will consist of up to five (5)
tapes at no cost with an additional charge of $75.00 per tape for each
additional tape. All tapes will be provided in standard format. In no event
shall the charges for the preceding services exceed an amount of $7,500.00 for
these deconversion services. All other services and/or programming will be
performed and billed at JHA's then current published standard rate as it is
provided to all customers. Upon the finalization of the Deconversion XXX shall
within thirty (30) days submit a final xxxx to Client which will itemize all
fees, costs and other amounts due XXX. Client shall remit payment for said
billing on a net (30) basis."
B. To the end of the Section add the following new subparagraph and language as
follows:
"In the event that either party has materially breached this Agreement and fails
to correct said breach fully within ninety days of its receipt of written notice
of such breach or if either party files for bankruptcy then the other party may
terminate this agreement at their sole discretion. In the sole event of a breach
by XXX which is not remedied as provided for herein Client shall not be
obligated to pay the minimum amounts shown elsewhere herein."
XX0XX-0-00
Xxxxxxxx Xxxxxxxxxxxx
Xxxxxxxxxxx, XX
Page 2
2. In Section "13. Time frames for Receipt and Delivery of Work." following
the last subparagraph insert the following new language:
"(A) Data Processing Services - Customer shall notify XXX of any performance
issues/problems and XXX shall have the 30-day period to correct any problems. If
XXX has not corrected the problem as outlined in the service level agreements
below it will be considered a breach after three consecutive 30 day periods and
then the client shall have the right to terminate this agreement.
(B) On-Line Availability - JHA's standard of performance shall be on-line
availability of the XXX core processing system 98% of the time that it is
scheduled to be available over a 3 month period ("Measurement Period"). Actual
online performance will be calculated monthly by comparing the number of hours
that the XXX system was scheduled to be operational on an on-line basis
exclusive of preventive maintenance and scheduled maintenance with the number of
hours, or a portion thereof, it was actually operational on an on-line basis.
Preventative maintenance will not be scheduled during normal online processing
hours. Preventative maintenance will be performed on only mission critical
equipment during on-line processing hours. Downtime caused by reasons beyond
JHA's control will not be considered in the statistics.
(C) Report Availability - JHA's standard of performance for report availability
shall be that, over a Measurement Period, 95% of all Critical Daily Information
shall be available for remote printing or dispatch to the courier on time
without significant errors. Critical Daily Information shall mean priority group
reports that XXX and Client mutually agree in writing are necessary to account
properly for the previous day's activities and properly notify Client of
overdraft, NSF, or return items. The agreed upon Critical Daily Information
shall be listed on an exhibit attached to the final conversion plan. A
significant error is one that impacts Client's ability to account properly for
the previous day's activity and/or account properly for overdraft, NSF or Return
Items. Actual performance will be calculated monthly by comparing the total
number of reports scheduled to be available from XXX for that month, to the
number of reports that were available on time and without error. Failing to meet
the 95% goal for a particular month shall be regarded as a single occurrence.
SERVICE GOAL: 95%
REMEDY: Client will notify XXX of non-performance in writing through the
normal predefined procedures. XXX will have 30 days to cure.
BREACH: 3 occurrences in 90 day period.
XX0XX-0-00
Xxxxxxxx Xxxxxxxxxxxx
Xxxxxxxxxxx, XX
Page 3
(D) Response Time - JHA's standard of performance for response time shall be
the average total time for the receipt of a response at the Client workstation
following the entry of the last required data element by Client. Within sixty
(60) days of the implementation of this contract XXX and Client will develop and
implement a test script consisting of a variety of inquiry transactions to
determine the average response time of the software at a workstation level. If
the thereby obtained response time is greater than five (5) seconds on average
XXX will take steps to remedy the problem following written notification of the
problem by Client. However, if the slow response time is not solely the fault of
XXX, Client hereby acknowledges that it is willing to change various aspects of
Client's hardware and/or telecommunications configuration provided that XXX
reasonably believes that such areas are the cause of the slowed response time.
Response time measurements are specific to transactions accessing host software
files and do not include Complementary Products such as NetTellerTM, PassPortTM,
or InTouch that involve non-host equipment or external communications links.
SERVICE GOAL: 95%
REMEDY: Client will notify XXX of non-performance in writing through the
normal predefined procedures. XXX will have 30 days to cure.
BREACH: 3 occurrences in 90 day period.
(E) Problem Resolution - XXX will use reasonable efforts to resolve at least
90% of all problems reported to XXX within 24 hours from the time the problem is
first reported to XXX. XXX and Client agree to cooperate fully in promptly
reporting and analyzing the reasons for failure, if any, to meet the goals and
objectives contained in this Exhibit. XXX agrees to assist Client in dealing
with any third party that may be responsible therefore, and further agrees to
make appropriate recommendations to Client for correcting such failures, without
regard for whether or not the failure was attributable to XXX. XXX will present
to Client a written plan for corrective action for those failures directly under
JHA's control. Client inquires will be acknowledged by XXX within 2 hours of
request. A plan for resolution of the inquiry will be completed by XXX within 24
hours of the time inquiry unless XXX and Client accept a mutually agreeable
time.
SERVICE GOAL: 90%
REMEDY: Client will notify XXX of non-performance in writing through the
normal predefined procedures. XXX will have 30 days to cure.
BREACH: 3 occurrences in 90 day period.
XX0XX-0-00
Xxxxxxxx Xxxxxxxxxxxx
Xxxxxxxxxxx, XX
Page 4
(F) Service Fee Credits and Bonuses - In the event JHA's standard of
performance falls below the prescribed level of performance for critical
performance standards as outlined over the prescribed Measurement Period
resulting in a direct cost incurred by the bank, XXX shall provide credit
against Client's next invoice for Account Processing Services compensating the
bank for those costs incurred.
(G) Image Item Processing Services
Performance Standards:
XXX will perform the Item Processing Services in accordance with the performance
standards specified below. Customer shall notify XXX of any performance
issues/problems and XXX shall have the 30-day period to correct any problems. If
XXX has not corrected the problem as outlined in the service level agreements
below it will be considered a breach after three consecutive 30 day periods and
then the client shall have the right to terminate this agreement.
Delivery of Work:
Client agrees to deliver un-encoded work to the XXX Item processing center at
least three (3) hours in advance of the time that cash letters need to leave the
center in order to meet the deadlines that the client wishes XXX to meet. If the
work is preencoded, the work must be delivered at least two hours in advance of
the time that cash letters need to leave the center in order to meet the
deadlines that the client wishes XXX to meet.
Proof and Encoding:
Client will prepare and present proof work in accordance with XXX' s standards
and work preparation guidelines. XXX will comply with Client's instructions for
customer corrections, suspense entries, and exception items.
XXX proof of deposit and balancing of work received from Client for processing:
DESCRIPTION:
- All (100%) batches are balanced without errors
- Dollar encoding errors to meet service goals of 1 in 5,000 items
- Corrections made with accepted medium
- All Customer Corrections are legible and complete
- All Customer Corrections have the correct reason listed
- Items are endorsed with the proper bank stamp in proper Regulation CC.
position and legible
- All transaction Corrections using G/L debits and credits contain the correct
information
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- Suspense documentation is legible and complete
SERVICE GOAL: 99.980%
REMEDY:
- Client will notify XXX of specific non-performance issues in writing
through the normal predefined procedures.
- XXX will have 30 days to cure.
MEASUREMENT: Percent of Volume
BREACH: 3 non-performance occurrences in 90-day period
Cash Letter Preparation:
XXX preparation of transit cash letters:
DESCRIPTION:
- Cash Letters are sent out with correct total(s)
- Cash Letters are sent with complete bundle count(s)
- Cash Letter differences are explained
- Cash Letters for proper bank are used
- Cash Letters for the correct correspondent are used
- Cash Letters are sent out in a timely manner to meet deadlines.
- Notification of cash letters (transit deposits) not sent out as specified
above on the following day.
SERVICE GOAL: Not to exceed one error per month REMEDY:
- Client will notify XXX of specific non-performance issues in writing
through the normal predefined procedures.
- XXX will pay Client the interest lost from missed investment opportunity
at the current Fed Funds Rate as published daily in the Wall Street Journal due
to a missed transit deposit deadline that was a direct result of a XXX error.
XXX will not pay for missed cash letters due to late delivery of work.
- XXX will have 30 days to cure.
MEASUREMENT: Record of Occurrence
BREACH: 3 non-performance occurrences in 90-day period
Statement Preparation and Check Filing:
XXX preparation of statements and check filing requirements: A statement error
is a statement that:
DESCRIPTION
- Includes a page from a statement of another customers, or - Is missing
a page, or
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- Includes items of another customer, or
- Is missing items and a missing item notice is not included in the
statement
- Labeled "Hold Statements" being mailed out
- a statement labeled with a "hold Code" for special handling being mailed
out
- A statement that is mailed later than the 3r business day following the
date of statement.
- Cripple statements will receive an additional two (2) days to resolve.
Resolution for statements with physical items that cannot be located will
include the image in lieu of physical document.
SERVICE GOALS
Statement errors will not exceed .01 % of the statements rendered in any one
cycle.
REMEDY:
- Client will notify XXX of specific non-performance issues in writing
through the normal predefined procedures.
- XXX will have 30 days to cure.
MEASUREMENT: Percent of Volume
BREACH: Performance goals not met 3 times in 90-day periods
Research:
XXX research of items, photocopy production: DESCRIPTION:
- The turn around time for a research request will be 48 hours from the time
of receipt (unless otherwise notified)
- Best effort will be made to produce quality photocopies
- A completion commitment will be provided when Client requests subpoena
research
SERVICE GOAL: 99.0% REMEDY:
- Client will notify XXX of specific non-performance issues in writing
through the normal predefined procedures.
- XXX will have 30 days to cure.
MEASUREMENT: Percent of Volume of the total copies/images requested. BREACH:
3 non-performance occurrences in 90-day period
Inclearings Processing:
Inclearings processing:
DESCRIPTION:
- Log totals by bank
- Balance checks against Cash Letters
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- Will not modify the account, but will put into suspense for client
decision and Record differences
- Prepare Cash Letter Adjustments
- Process checks by transmission deadline
SERVICE GOAL: 99.5%
MEASUREMENT: Percent of Volume"
3. Add the following new Section and language:
"15. Xxxx Xxxxx & Associates, Inc.'s Policy on Privacy of Consumer Financial
Information.
In order to assist Client in meeting the requirements of the Xxxxx-Xxxxx-Xxxxxx
Financial Modernization Act, Xxxx Xxxxx & Associates sets out in writing its
long standing policy and practices regarding the privacy of information provided
by our customers and their clients:
Xxxx Xxxxx & Associates (XXX) will not sell, disclose, nor permit access to
information provided by Client for any purposes other than those specifically
required to fulfill JHA's contractual obligations with Client.
In the event any court or regulatory agency seeks to compel disclosure of said
information XXX will, if legally permissible, promptly notify Client of said
attempt and will cooperate so that Client may at its expense seek to legally
prevent this disclosure of information.' "
In witness whereof, the parties have caused this CONTRACT MODIFICATION to be
executed by their duly authorized representatives.
XXXX XXXXX & ASSOCIATES, INC. 000 Xxxxxxx 00, X. X. Xxx 000 Xxxxxx, XX 00000
(XXX)
By: /s/ Xxxx Xxxx
Type/Print Name Xxxx Xxxx
TITLE: Chief Operating Officer
MISSION BANK 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx, XX 00000 (CLIENT)
By: /s/ Xxxx Xxxxx
Type/Print Name Xxxx Xxxxx
TITLE: VP & CFO
CM1SB-4-97
