EXHIBIT 10.8
Agreement Number:
AGREEMENT
between
FISERV SOLUTIONS, INC.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
and
XXXXX RIVER COMMUNITY BANK, N.A.
Martinsville, Virginia
Date: September, 1999
FISERV(R)
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AGREEMENT dated as of __________ ("Agreement') between FISERV SOLUTIONS, INC., a
Wisconsin corporation ("Fiserv"), and Xxxxx River Community Bank, a Virginia
Financial Institution ("Client").
Fiserv and Client hereby agree as follows:
1. Term. The initial term of this Agreement shall be 62 months and,
unless written notice of non-renewal is provided by either party at least 180
days prior to expiration of the initial term or any renewal term, this Agreement
shall automatically renew for a renewal term of 5 years. This Agreement shall
commence on the earliest of the day Fiserv Services (as defined below) are first
used by Client or April 1, 2000.
2. Services. (a) Services Generally. Fiserv, itself and through its
affiliates, agrees to provide Client, and Client agrees to obtain from Fiserv
services ("Services") and products ("Products") (collectively, "Fiserv
Services") described in the attached Exhibits:
Exhibit A - Account Processing Services
Exhibit H - Additional Services (Disaster Recovery)
The Exhibits set forth specific terms and conditions applicable to the
Services and/or Products, and, where applicable, the Fiserv affiliate so
performing. Client may select additional services and products from time to time
by incorporating an appropriate Exhibit to this Agreement.
(b) Conversion Services. Fiserv will convert Client's existing
applicable data and/or information to the Fiserv Services. Those activities
designed to transfer the processing from Clients present servicer to the Fiserv
Services are referred to as "Conversion Services". Client agrees to REASONABLY
cooperate with Fiserv in connection with Fiserv's provision of Conversion
Services and to provide all REASONABLY necessary information and assistance to
facilitate the conversion. Client is responsible for all out-of-pocket expenses
associated with the Conversion Services. TOTAL OUT-OF-POCKET EXPENSES SHALL NOT
EXCEED $12,000.00. Fiserv will provide Conversion Services as required in
connection with Fiserv Services.
(c) Training Services. Fiserv shall provide training, training aids,
user manuals, and other documentation for Client's use as Fiserv finds necessary
to enable Client personnel to become familiar with Fiserv Services. If requested
by Client, classroom training in the use and operation of Fiserv Services will
be provided at a training facility designated by Fiserv. All such training aids
and manuals remain Fiserv's property.
3. Fees for Fiserv Services. (a) General. Client agrees to pay Fiserv:
(i) estimated fees for Fiserv Services for the following month as
specified in the Exhibits;
(ii) estimated out-of-pocket charges for the following month payable
by Fiserv for the account of Client; and
(iii) estimated Taxes (as defined below) thereon (collectively,
"Estimated Fees").
Fiserv shall MONTHLY reconcile Estimated Fees paid by Client for the Fiserv
Services for the month and the fees and charges actually due Fiserv based on
Clients actual use of Fiserv Services for such month. Fiserv shall MONTHLY
either issue a credit to Client or provide Client with an invoice for any
additional fees or other charges owed. Fiserv may change the amount of Estimated
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Fees billed to reflect appropriate changes in actual use of Fiserv Services.
Estimated Fees may be increased from time to time as set forth in the Exhibits.
Upon notification to and acceptance by Client, Fiserv may increase its fees in
excess of amounts listed in the Exhibits in the event that Fiserv implements
major system enhancements to comply with changes in law, government regulation,
or industry practices.
(b) Additional Charges. Fees for out-of-pocket expenses, such as
telephone, microfiche, courier, and other charges incurred by Fiserv for goods
or services obtained by Fiserv on Client's behalf shall be billed to Client at
cost plus the applicable Fiserv administrative fee, NOT TO EXCEED 15%. Such
out-of-pocket expenses may be changed from time to time upon notification of a
fee change from a vendor/provider.
(c) Taxes. Fiserv shall add to each invoice any sales, use, excise,
value added, and other taxes and duties however designated that are levied by
any taxing authority relating to the Fiserv Services ("Taxes"). In no event
shall 'Taxes" include taxes based upon the net income OR PAYROLL of Fiserv.
(d) Exclusions. The Estimated Fees do not include, and Client shall be
responsible for, furnishing transportation or transmission of information
between Fiserv's service center(s), Client's site(s), and any applicable
clearing house, regulatory agency, or Federal Reserve Bank.
(e) Payment Terms. Estimated Fees are due and payable monthly upon
receipt of invoice. Client shall pay Fiserv through the Automated Clearing
House. In the event any amounts due remain unpaid beyond the 30th day after
payment is due, Client shall pay a late charge of 1.5% per month. Client agrees
that it shall neither make nor assert any right of deduction or set-off from
Estimated Fees on invoices submitted by Fiserv for Fiserv Services.
4. Access to Fiserv Services. (a) Procedures. Client agrees to comply
with applicable regulatory requirements and procedures for use of Services
established by Fiserv.
(b) Changes. Fiserv continually reviews and modifies Fiserv systems
used in the delivery of Services (the "Fiserv System") to improve service and
comply with government regulations, if any, applicable to the data and
information utilized in providing Services. Fiserv reserves the right to make
changes in Services, including but not limited to operating procedures, type of
equipment or software resident at, and the location of Fiserv's service
center(s). Fiserv will notify Client of any material change that affects Clients
normal operating procedures, reporting, or service costs prior to implementation
of such change.
(c) Communications Lines. Fiserv shall order the installation of
appropriate communication lines and equipment to facilitate Clients access to
Services. Client understands and agrees to pay charges relating to the
installation and use of such lines and equipment as set forth in the Exhibits.
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(d) Terminals and Related Equipment. Client shall obtain necessary and
sufficient terminals and other equipment, approved by Fiserv and compatible with
the Fiserv System, to transmit and receive data and information between Clients
location(s), Fiserv's service center(s), and/or other necessary location(s).
Fiserv and Client may mutually agree to change the type(s) of terminal and
equipment used by Client.
5. Client Obligations. (a) Input. Client shall be solely responsible
for the input, transmission, or delivery to and from Fiserv of all information
and data required by Fiserv to perform Services unless Client has retained
Fiserv to handle such responsibilities, as specifically set forth in the
Exhibits. The information and data shall be provided in a format and manner
approved by Fiserv. Client will provide at its own expense or procure from
Fiserv all equipment, computer software, communication lines, and interface
devices required to access the Fiserv System. If Client has elected to provide
such items itself, Fiserv shall provide Client with a list of compatible
equipment and software.
(b) Client Personnel. Client shall designate appropriate Client
personnel for training in the use of the Fiserv System, shall supply Fiserv with
reasonable access to Client's site during normal business hours for Conversion
Services and shall REASONABLY cooperate with Fiserv personnel in their
performance of Services, including Conversion Services.
(c) Use of Fiserv System. Client shall (i) comply with any operating
instructions on the use of the Fiserv System provided by Fiserv; (ii) review all
reports furnished by Fiserv for accuracy; and (iii) work with Fiserv to
reconcile any out of balance conditions. Client shall determine and be
responsible for the authenticity and accuracy of all information and data
submitted to Fiserv.
(d) Client's Systems. Client shall be responsible for ensuring that its
systems are Year 2000 compliant and capable of passing and/or accepting date
formats from and/or to the Fiserv System.
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6. Ownership and Confidentiality. (a) Definition.
(i) Client Information, "Client Information" means: (A) confidential
plans, customer lists, information (including financial information),
and other proprietary material of Client that is marked with a
restrictive legend, or if not so marked with such legend or is
disclosed orally, is identified as confidential at the time of
disclosure (and written confirmation thereof is promptly provided to
Fiserv); and (B) any information and data concerning the business and
financial records of Client's customers prepared by or for Fiserv, or
used in any way by Fiserv in connection with the provision of Fiserv
Services (whether or not any such information is marked with a
restrictive legend).
(ii) Fiserv Information. 'Fiserv Information" means: (A) confidential
plans, information, research, development, trade secrets, business
affairs (including that of any Fiserv client, supplier, or affiliate),
and other proprietary material of Fiserv that is marked with a
restrictive legend, or if not so marked with such legend or is
disclosed orally, is identified as confidential at the time of
disclosure (and written confirmation thereof is promptly provided to
Client); and (8) Fiserv's proprietary computer programs, including
custom software modifications, software documentation and training
aids, and all data, code, techniques, algorithms, methods, logic,
architecture, and designs embodied or incorporated therein (whether or
not any such information is marked with a restrictive legend).
(iii) Information. "Information" means Client Information and Fiserv
Information. No obligation of confidentiality applies to any
Information that the receiving party ('Recipient') (A) already
possesses without obligation of confidentiality; (B) develops
independently; or (C) rightfully receives without obligation of
confidentiality from a third party. No obligation of confidentiality
applies to any Information that is, or becomes, publicly available
without breach of this Agreement.
(b) Obligations. Recipient agrees to hold as confidential all
Information it receives from the disclosing party ("Disclosee'). All Information
shall remain the property of Discloser or its suppliers and licensors.
Information will be returned to Discloser at the termination or expiration of
this Agreement. Recipient will use the same care and discretion to avoid
disclosure of Information as it uses with its own similar information that it
does not wish disclosed, but in no event less than a reasonable standard of
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care. Recipient may use Information for any purpose that does not violate such
obligation of confidentiality. Recipient may disclose Information to
(i) employees and employees of affiliates who have a need to know; and
(ii) any other party with Discloser's written consent. Before
disclosure to any of the above parties, Recipient will have a written
agreement with such party sufficient to require that party to treat
Information in accordance with this Agreement. Recipient may disclose
Information to the extent required by law. However, Recipient agrees to
give Discloser prompt notice so that it may seek a protective order.
The provisions of this sub-section survive any termination or
expiration of this Agreement.
(c) Residuals. Nothing contained in this Agreement shall restrict
Recipient from the use of any ideas, concepts, know-how, or techniques contained
in Information that are related to Recipients business activities ("Residuals'),
provided that in so doing, Recipient does not breach its obligations under this
Section. However, this does not give Recipient the night to disclose the
Residuals except as set forth elsewhere in this Agreement.
(d) Fiserv System. The Fiserv System contains information and computer
software that are proprietary and confidential information of Fiserv, its
suppliers, and licensors. Client agrees not to attempt to circumvent the devices
employed by Fiserv to prevent unauthorized access to the Fiserv System,
including, but not limited to, alterations, decompiling, disassembling,
modifications, and reverse engineering thereof.
(e) Confidentiality of this Agreement. Fiserv and Client agree to keep
confidential the prices, terms and conditions of this Agreement, without
disclosure to third parties.
7. Regulatory Agencies, Regulations and Legal Requirements. (a) Client
Files. Records maintained and produced for Client ('Client Files') may be
subject to examination by such Federal, State, or other governmental regulatory
agencies as may have jurisdiction over Client's business to the same extent as
such records would be subject if maintained by Client on its own premises.
Client agrees that Fiserv is authorized to give all reports,
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summaries, or information contained in or derived from the data or information
in Fiserv's possession relating to Client when formally requested to do so by an
authorized regulatory or government agency. FISERV WILL PROVIDE CLIENT WRITTEN
NOTIFICATION OF SUCH REQUEST.
(b) Compliance with Regulatory Requirements. Client agrees to comply
with applicable regulatory and legal requirements, including without limitation:
(i) submitting a copy of this Agreement to the appropriate regulatory
agencies prior to the date Services commence;
(ii) providing adequate notice to the appropriate regulatory agencies
of the termination of this Agreement or any material changes in
Services;
(iii) retaining records of its accounts as required by regulatory
authorities;
(iv) obtaining and maintaining, at its own expense, any Fidelity Bond
required by any regulatory or governmental agency; and
(v) maintaining, at its own expense, such casualty and business
interruption insurance coverage for loss of records from fire,
disaster, or other causes, and taking such precautions regarding the
same, as may be required by regulatory authorities.
8. Warranties. (a) Fiserv Warranties. Fiserv represents and warrants
that:
(i)(A) Services will conform to the specifications set forth in the
Exhibits; (B) Fiserv will perform Client's work accurately provided
that Client supplies accurate data and information, and materially
follows the procedures described in all Fiserv documentation, notices,
and advices; (C) Fiserv personnel will exercise due care in provision
of Services; (D) the Fiserv System will comply in all material respects
with all applicable Federal and State regulations governing Services;
and (E) the Fiserv System is Year 2000 compliant. In the event of an
error or other default caused by Fiserv personnel, systems, or
equipment, Fiserv shall correct the data or information and/or
reprocess the affected item or report at no additional cost to Client.
Client agrees to supply Fiserv with a written request for correction of
the error within 7 days after Client's receipt of the work containing
the error. Work reprocessed due to errors in data supplied by Client,
on Client's behalf by a third party, or by Client's failure to
MATERIALLY follow procedures set forth by Fiserv shall be billed to
Client at Fiserv's then current time and material rates; and (ii) it
owns or has a license to furnish all equipment or software comprising
the Fiserv System. Fiserv shall indemnify Client and hold it harmless
against any claim or action that alleges that the Fiserv System use
infringes a United States patent, copyright, or other proprietary right
of a third party. Client agrees to notify Fiserv promptly of any such
claim and grants Fiserv the sole right to control the defense and
disposition of all such claims. Client shall provide Fiserv with
reasonable cooperation and assistance in the defense of any such claim.
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THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES
MADE BY FISERV. FISERV DOES NOT MAKE, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL
OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL LIABILITIES
OR OBLIGATIONS OF FISERV FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE
DELIVERY, USE, OR PERFORMANCE OF FISERV SERVICES.
(b) Client Warranties. Client represents and warrants that: (A) no
contractual obligations exist that would prevent Client from entering into this
Agreement; (B) it has complied with all applicable regulatory requirements; and
(C) Client has requisite authority to execute, deliver, and perform this
Agreement. Client shall indemnify and hold harmless Fiserv, its officers,
directors, employees, and affiliates against any claims or actions arising out
of (X) the use by Client of the Fiserv System in a manner other than that
provided in this Agreement; and (Y) any and all claims by third parties through
Client arising out of the performance and non-performance of Fiserv Services by
Fiserv, provided that the indemnity listed in clause (Y) hereof shall not
preclude Clients recovery of direct damages pursuant to the terms and subject to
the limitations of this Agreement.
9. Limitation of Liability. (a) General. IN NO EVENT SHALL FISERV BE
LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING FROM CLIENT'S USE OF FISERV SERVICES, OR FISERVS
SUPPLY OF EQUIPMENT OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT
OR IN CONTRACT. CLIENT MAY NOT ASSERT ANY CLAIM AGAINST FISERV MORE THAN 2 YEARS
AFTER SUCH CLAIM ACCRUED. FISERVS AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF
ACTION RELATING TO SERVICES SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO
FISERV FOR SERVICES RESULTING IN SUCH LIABILITY IN THE 2 MONTH PERIOD PRECEDING
THE DATE THE CLAIM ACCRUED. FISERVS AGGREGATE LIABILITY FOR A DEFAULT RELATING
TO EQUIPMENT OR SOFTWARE SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT FOR THE
EQUIPMENT OR SOFTWARE.
(b) Lost Records. If Clients records or other data submitted for
processing are lost or damaged as a result of any failure by Fiserv, its
employees, or agents to exercise reasonable care to prevent such loss or damage,
Fiserv's liability on account of such loss or damages shall not exceed the
reasonable cost of reproducing such records or data from exact duplicates
thereof in Clients possession.
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10. Disaster Recovery. (a) General. Fiserv maintains a disaster
recovery plan ("Disaster Recovery Plan") for each Service. A 'Disaster' shall
mean any unplanned interruption of the operations of or inaccessibility to
Fiserv's service center in which Fiserv, using reasonable judgment, requires
relocation of processing to a recovery location. Fiserv shall notify Client as
soon as possible after Fiserv deems a service outage to be a Disaster. Fiserv
shall move the processing of Client's standard services to a recovery location
as expeditiously as possible and shall coordinate the cut-over to back-up
telecommunication facilities with the appropriate carriers. Client shall
maintain adequate records of all transactions during the period of service
interruption and shall have personnel available to assist Fiserv in implementing
the switchover to the recovery location. During a Disaster, optional or
on-request services shall be provided by Fiserv only to the extent adequate
capacity exists at the recovery location and only after stabilizing the
provision of base services.
(b) Communications. Fiserv shall work with Client to establish a plan
for alternative communications in the event of a Disaster.
(c) Disaster Recovery Test. Fiserv shall test the Disaster Recovery
Plan periodically. Client agrees to participate in and REASONABLY assist Fiserv
with such test, if requested by Fiserv. Upon Client request, test results will
be made available to Clients management, regulators, auditors, and insurance
underwriters.
(d) Client Plans. Fiserv agrees to release information necessary to
allow Client's development of a disaster recovery plan that operates in concert
with the Disaster Recovery Plan.
(e) No Warranty. Client understands and agrees that the Disaster
Recovery Plan is designed to minimize, but not eliminate, risks associated with
a Disaster affecting Fiserv's service center(s). Fiserv does not warrant that
Fiserv Services will be uninterrupted or error free in the event of a Disaster;
no performance standards shall be applicable for the duration of a Disaster.
Client maintains responsibility for adopting a disaster recovery plan relating
to disasters affecting Client's facilities and for securing business
interruption insurance or other insurance necessary for Client's protection.
11. Termination. (a) Material Breach. Except as provided elsewhere in
this Section 11, either party may terminate this Agreement in the event of a
material breach by the other party not cured within 90 days following written
notice staffing, with particularity and in reasonable detail, the nature of the
claimed breach.
(b) Failure to Pay. In the event any invoice remains unpaid by Client
30 days after due, or Client deconverts any data or information from the Fiserv
System without prior written consent of Fiserv, Fiserv, at its sole option, may
terminate this Agreement and/or Clients access to and use of Fiserv Services.
Any invoice submitted by Fiserv shall be deemed correct unless Client provides
written notice to Fiserv within 30 days of the invoice date specifying the
nature of the disagreement.
(c) Remedies. Remedies contained in this Section 11 are cumulative and
are in addition to the other rights and remedies available to Fiserv under this
Agreement, by law or otherwise.
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(d) Defaults. If Client:
(i) defaults in the payment of any sum of money due;
(ii) breaches this Agreement in any material respect or otherwise
defaults in any material respect in the performance of any of its
obligations; or
(iii) commits an act of bankruptcy or becomes the subject of any
proceeding under the Bankruptcy Code or becomes insolvent or if any
substantial part of Client's property becomes subject to any levy,
seizure, assignment, application, or sale for or by any creditor or
governmental agency;
then, in any such event, Fiserv may, upon written notice, terminate this
Agreement and be entitled to recover from Client as liquidated damages an amount
equal to the present value of all payments remaining to be made hereunder for
the remainder of the initial term or any renewal term of this Agreement. For
purposes of the preceding sentence, present value shall be computed using the
'prime" rate (as published in THE WALL STREET JOURNAL in effect at the date of
termination and 'all payments remaining to be made' shall be calculated based on
the average bills for the 3 months immediately preceding the date of
termination. Client agrees to reimburse Fiserv for any expenses Fiserv may
incur, including reasonable attorneys' 'fees, in taking any of the foregoing
actions.
IF FISERV:
(i) BREACHES THIS AGREEMENT IN ANY MATERIAL RESPECT OR OTHERWISE
DEFAULTS in ANY MATERIAL RESPECT, in THE PERFORMANCE OF ANY OF ITS
OBLIGATIONS; OR
(ii) COMMITS AN ACT OF BANKRUPTCY OR BECOMES THE SUBJECT OF ANY
PROCEEDING UNDER THE BANKRUPTCY CODE OR BECOMES INSOLVENT OR IF ANY
SUBSTANTIAL PART OF FISERV'S PROPERTY BECOMES SUBJECT TO ANY LEVY,
SEIZURE, ASSIGNMENT, APPLICATION, OR SALE FOR OR BY ANY CREDITOR OR
GOVERNMENTAL AGENCY;
THEN, IN ANY SUCH EVENT, CLIENT MAY, UPON WRITTEN NOTICE, TERMINATE THIS
AGREEMENT, WITHOUT PENALTY OR DECONVERSION FEES.
(e) Convenience. Client may terminate this Agreement during any term by
paying a termination fee based on the remaining unused term of this Agreement,
the amount to be determined by multiplying Clients AVERAGE monthly invoice for
each Fiserv Service received by Client during the term (or if no monthly invoice
has been received, the sum of the estimated monthly billing for each Fiserv
Service to be received hereunder) by 80% times the remaining months of the term,
plus any unamortized conversion fees or third party costs existing on Fiserv's
books on the date of termination. Client understands and agrees that Fiserv
losses incurred as a result of early termination of the Agreement would be
difficult or impossible to calculate as of the effective date of termination
since they will vary based on, among other things, the number of clients using
the Fiserv System on the date the Agreement terminates. Accordingly, the amount
set forth in the first sentence of this subsection represents Client's agreement
to pay and Fiserv's agreement to accept as liquidated damages (and not as a
penalty) such amount for any such Client termination.
(f) Merger. In the event of a merger between Client and another
organization in which Client is not the surviving organization and where the
other organization was not previously a user of Fiserv services similar to the
Services, Fiserv will allow an early termination of this Agreement upon the
following terms and conditions:
(i) written notice must be given 3 months in advance, specifying the
termination date;
(ii) Fiserv may specify a deconversion date based on its previous
commitments and work loads; and
(iii) Fiserv may charge a termination fee in accordance with subsection
(e) above.
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(g) Return of Data Files. Upon expiration or termination of this
Agreement, Fiserv shall furnish to Client such copies of Client Files as Client
may request in Fiserv's standard machine readable format along with such
information and assistance as is reasonable and customary to enable Client to
deconvert from the Fiserv System, provided, however, that Client consents and
agrees and authorizes Fiserv to retain Client Files until (i) Fiserv is paid in
full for (A) all Services provided through the date such Client Files are
returned to Client; and (B) any and all other amounts that are due or will
become due under this Agreement; (ii) Fiserv is paid its then standard rates for
the services necessary to return such Client Files; (iii) if this Agreement is
being terminated, Fiserv is paid any applicable termination fee pursuant to
subsection (d),(e), or (f) above; and (iv) Client has returned to Fiserv all
Fiserv Information. Unless directed by Client in writing to the contrary, Fiserv
shall be permitted to destroy Client Files any time after 30 days from the final
use of Client Files for processing.
(h) Miscellaneous, Client understands and agrees that Client is
responsible for the deinstallation and return shipping of any Fiserv-owned
equipment located on Client's premises.
12. Arbitration. (a) General Except with respect to disputes arising
from a misappropriation or misuse of either party's proprietary rights, any
dispute or controversy arising out of this Agreement, or its interpretation,
shall be submitted to and resolved exclusively by arbitration under the rules
then prevailing of the American Arbitration Association, upon written notice of
demand for arbitration by the party seeking arbitration, setting forth the
specifics of the matter in controversy or the claim being made. The arbitration
shall be heard before an arbitrator mutually agreeable to the parties; provided,
that if the parties cannot agree on the choice of arbitrator within 1 0 days
after the first party seeking arbitration has given written notice, then the
arbitration shall be heard by three arbitrators, one chosen by each party, and
the third chosen by those two arbitrators. The arbitrators will be selected from
a panel of persons having experience with and knowledge of information
technology and at least one of the arbitrators selected will be an attorney. A
hearing on the merits of all claims for which arbitration is sought by either
party shall be commenced not later than 90 days from the date demand for
arbitration is made by the first party seeking arbitration. The arbitrator(s)
must render a decision within 10 days after the conclusion of such heading. Any
award in such arbitration shall be final and binding upon the parties and the
judgment thereon may be entered in any court of competent jurisdiction.
(b) Applicable Law. The arbitration shall be governed by the United
States Arbitration Act, 9 U.S.C. 1-16. The arbitrators shall apply the
substantive law of the State of Wisconsin, without reference to provisions
relating to conflict of laws. The arbitrators shall not have the power to alter,
modify, amend, add to, or subtract from any term or provision of this Agreement,
nor to rule upon or grant any extension, renewal, or continuance of this
Agreement. The arbitrators shall have the authority to grant any legal remedy
available had the parties submitted the dispute to a judicial proceeding.
(c) Situs. If arbitration is required to resolve any disputes between
the parties, the proceedings to resolve the first such dispute shall be held in
Martinsville, Virginia, the proceedings to resolve the second such dispute shall
be held in Atlanta, Georgia, and the proceedings to resolve any subsequent
disputes shall alternate between Atlanta, Georgia and Martinsville, Virginia.
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13. Insurance. Fiserv carries the following types of insurance
policies:
(i) Comprehensive General Liability in an amount not less than $1
million per occurrence for claims arising out of bodily injury and
property damage;
(ii) Commercial Crime covering employee dishonesty in an amount not
less than $5 million;
(iii) All-risk property coverage including Extra Expense and Business
Income coverage; and
(iv) Workers Compensation as mandated or allowed by the laws of the
state in which Services are being performed, including $500,000
coverage for Employer's Liability.
14. Audit. Fiserv employs an internal auditor responsible for ensuring
the integrity of its processing environments and internal controls. In addition,
Fiserv provides for periodic independent audits of its operations. Fiserv shall
provide Client with a copy of the audit of the Fiserv service center providing
Services within a reasonable time after its completion and shall charge each
client a fee based on the pro rata cost of such audit. Fiserv shall also provide
a copy of such audit to the appropriate regulatory agencies, if any, having
jurisdiction over Fiserv's provision of Services.
15. General. (a) Binding Agreement. This Agreement is binding upon the
parties and their respective successors and permitted assigns. Neither this
Agreement nor any interest may be sold, assigned, transferred, pledged, or
otherwise disposed of by Client, whether pursuant to change of control or
otherwise, without Fiserv's prior written consent. Client agrees that Fiserv may
subcontract any Services to be performed hereunder. Any such subcontractors
shall be required to comply with all applicable terms and conditions.
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(b) Entire Agreement. This Agreement, including its Exhibits, which are
expressly incorporated herein by reference, constitutes the complete and
exclusive statement of the agreement between the parties as to the subject
matter hereof and supersedes all previous agreements with respect thereto.
Modifications of this Agreement must be in writing and signed by duly authorized
representatives of the parties. Each party hereby acknowledges that it has not
entered into this Agreement in reliance upon any representation made by the
other party not embodied herein. In the event any of the provisions of any
Exhibit are in conflict with any of the provisions of this Agreement, the terms
and provisions of this Agreement shall control unless the Exhibit in question
expressly provides that its terms and provisions shall control.
(c) Severability. If any provision of this Agreement is held to be
unenforceable or invalid, the other provisions shall continue in full force and
effect.
(d) Governing Law. This Agreement will be governed by the substantive
laws of the State of Wisconsin, without reference to provisions relating to
conflict of laws. The United Nations Convention of Contracts for the
International Sale of Goods shall not apply to this Agreement.
(e) Force Majeure. Neither party shall be responsible for delays or
failures in performance resulting from acts reasonably beyond the control of
that party.
(f) Notices. Any written notice required or permitted to be given
hereunder shall be given by: (i) Registered or Certified Mail, Return Receipt
Requested, postage prepaid; (ii) confirmed facsimile; or (iii) nationally
recognized courier service to the other party at the addresses listed on the
cover page or to such other address or person as a party may designate in
writing. All such notices shall be effective upon receipt.
(g) No Waiver. The failure of either party to insist on strict
performance of any of the provisions hereunder shall not be construed as the
waiver of any subsequent default of a similar nature.
(h) Financial Statements. Fiserv shall provide Client and the
appropriate regulatory agencies so requiring a copy of Fiserv, Inc.'s audited
consolidated financial statements.
(i) Prevailing Party. The prevailing party in any arbitration, suit, or
action brought against the other party to enforce the terms of this Agreement or
any rights or obligations hereunder, shall be entitled to receive its reasonable
costs, expenses, and attorneys" fees of bringing such arbitration, suit, or
action.
(j) Survival. All rights and obligations of the parties under this
Agreement that, by their nature, do not terminate with the expiration or
termination of this Agreement shall survive the expiration or termination of
this Agreement.
(k) Exclusivity. Client agrees that Fiserv shall be the sole and
exclusive provider of the services that are the subject matter of this
Agreement. For purposes of the foregoing, the term "Client" shall include Client
affiliates. During the term of this Agreement, Client agrees not to enter into
an agreement with any other entity to provide these services (or similar
services) without Fiserv's prior written consent. If Client acquires another
entity, the exclusivity provided to Fiserv hereunder shall take effect with
respect to such acquired entity as soon as practicable after termination of such
acquired entity's previously existing arrangement for these services. If Client
is acquired by another entity, the exclusivity provided to Fiserv hereunder
shall apply with respect to the level or volume of these services provided
immediately prior to the signing of the definitive acquisition agreement
relating to such acquisition and shall continue with respect to the level or
volume of these services until any termination or expiration of this Agreement.
13
(1) Recruitment of Employees. Client agrees not to hire Fiserv's
employees during the term of this Agreement and for a period of 6 months after
any termination or expiration thereof, except with Fiserv's prior written
consent. FISERV AGREES NOT TO HIRE CLIENT'S EMPLOYEES DURING THE TERM OF THIS
AGREEMENT AND FOR A PERIOD OF SIX (6) MONTHS AFTER ANY TERMINATION THEREOF,
EXCEPT WITH CLIENT'S PRIOR WRITTEN CONSENT.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date indicated below.
For Client: For Fiserv:
XXXXX RIVER COMMUNITY BANK FISERV SOLUTIONS, INC.
By: ______________________________ By: ____________________________
Name: _______________________________ Name: __________________________
Title: ______________________________ Title: ___________________________
Date: ________________________________ Date: ___________________________
14
AGREEMENT ADDENDUM
1. Fiserv Agreement is executed based upon pending Regulatory approval of Xxxxx
River Community Bank.
2. Fiserv Agreement is executed pending capital funding of Xxxxx River Community
Bank.
ACCEPTED BY:
XXXXX RIVER COMMUNITY BANK FISERV SOLUTIONS, INC.
-------------------------------- --------------------------
Authorized Signature Authorized Signature
Printed Name: Printed Name:
Title: Title:
-------------------------------- --------------------------
Date Date
15
Exhibit A
Account Processing Services
---------------------------
Client agrees with Fiserv as follows:
1 . Services. Fiserv will provide Client the Account Processing
Services ("Account Processing Services") specified in Exhibit A-1.
2. Fees. Client shall pay Fiserv fees and other charges for Account
Processing Services specified in Exhibit A-2.
3. Responsibility for Accounts. Client shall be responsible for
balancing its accounts each business day and notifying Fiserv immediately of any
errors or discrepancies. Provided that Client immediately notifies Fiserv of any
discrepancy in Clients accounts, Fiserv shall, at its expense, promptly
recompute accounts affected by discrepancies solely caused by the Fiserv Systems
or provide for another mutually agreeable resolution. Fiserv will use its
commercially reasonable efforts to correct errors attributable to Client or
Client's other third party servicers. Reconstruction of error conditions
attributable to Client or to third parties acting on Client's behalf will be
done at prevailing rates as set forth in Exhibit A-2.
4. Annual Histories. Fiserv currently maintains annual histories, where
applicable, for its clients. These histories can be used to reconstruct Client
Files in an emergency. However, in order to permit prompt and accurate
reconstruction of accounts, Client agrees to retain at all times and make
available to Fiserv upon request the most recent data printout(s) received from
Fiserv, together with copies or other accurate and retrievable records of all
transactions to be reflected on the next consecutive printout(s).
5. Hours of Operation. Account Processing Services will be available
for use by Client during standard Fiserv business hours, excluding holidays, as
specified in Exhibit A-3. Account Processing Services may be available during
additional hours, during which time Client may use Services at its option and
subject to additional charges.
6. Protection of Data. (a) For the purpose of compliance with
applicable government regulations, Fiserv has an operations backup center, for
which Client agrees to pay the charges indicated in Exhibit A-2. Copies of
transaction files are maintained by Fiserv off premises in secured vaults.
(b) Fiserv provides "on-line" security via utilization of leased lines
with poll/select protocol.
(c) Upon Client providing access to Client Files through Client's
customers' personal computers or voice response system, Client agrees to
indemnify and hold harmless Fiserv, its officers, directors, employees, and
affiliates against any claims or actions arising out of such access to Client
Files or any Fiserv files (including the files of other Fiserv clients) or the
Fiserv System or other Fiserv systems.
7. Processing Priority. Fiserv does not subscribe to any processing
priority; all -users receive equal processing consideration.
8. Forms and Supplies. Client assumes and will pay the charges for all
customized forms, supplies, and delivery charges. Custom forms ordered through
Fiserv will be subject to a 15%
16
administrative fee for warehousing and inventory control. Forms ordered by
Client and warehoused at Fiserv will be subject to the administrative fee set
forth in Exhibit A-2.
9. Regulatory Supervision. By entering into this Agreement, Fiserv
agrees that the Office of Thrift Supervision, FDIC, or other regulatory agencies
having authority over Client's operations shall have the authority and
responsibility provided to the regulatory agencies pursuant to the Bank Service
Corporation Act, 12 U.S.C. 1867(C) relating to services performed by contract or
otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit A to the
Agreement to be executed by their duly authorized representatives as of the date
indicated below.
XXXXX RIVER COMMUNITY BANK FISERV SOLUTIONS, INC.
By: _________________________________ By: _____________________________
Name: _______________________________ Name: __________________________
Title: ________________________________ Title: __________________________
Date: _______________________________ Date: __________________________
17
Exhibit A-1
Account Processing Services
---------------------------
Fiserv will provide Client with the following Account Processing Services:
1. Services and/or functions to be performed by Fiserv:
A. Maintain the necessary computer equipment in order to provide
Client with complete electronic bookkeeping service for
Deposit Accounts, Certificate Accounts, Loan Accounts, Central
Information System, Account Analysis, ACH (Receiving), General
Ledger, and On-Line Documentation five (5) days per week. The
Information Technology, Inc. (ITI) Premier 11 Banking System
will be used for Client's application processing.
B. Provide necessary assistance to Client for the initial set-up
to convert to the Fiserv system. Customer Service is provided
by toll-free telephone as follows:
(1) Full Customer Service specialists for all applications, Monday
through Friday - 8:00 a.m. to 5:00 p.m. (EST)
(2) Limited telephone coverage, Monday through Friday - 5:00 p.m.
to 7:00 p.m. (EST)
(3) Emergency after hours Customer Service, via Beeper - 24
hours/day, 7 day/week
C. Receive transmitted transaction data from Client at Fiserv by
7:00 p.m. (EST) daily or receive transaction input at a Fiserv
center at mutually agreed time. If transaction data is not
received by this appropriate time, assurance cannot be made
for meeting the Client's scheduled needs the following day.
D. Reconcile Client's balancing totals.
E. Exercise reasonable care in handling data submitted to Fiserv
and hold all information received by Fiserv in strictest
confidence.
F. Calculate and provide figures for the daily accrual of
interest earned, late charges due, and service charges.
G. Transmit selected reports to Client's remote print facility or
Fiserv facility for printing.
18
II. Services, functions and requirements to be performed by Client for
participation in this agreement:
A. Purchase/lease all equipment required in the bank to utilize
the services provided by Fiserv.
B. Provide transmitted data to Fiserv's Computer Center daily by
7:00 p.m. EST, or provide input data to a Fiserv center by
mutually agreed times, records containing the necessary
information to process the applications.
C. Provide information on new accounts, change of address,
changes of title and status change through the online data
entry system.
D. Repair and re-enter for reprocessing all rejected items,
handle return items and reconcile controls.
E. Verify signatures and stop payments, cancel and file checks,
microfilm, assemble and mail statements, handle return items
and reconcile controls.
F. Balance work daily to General Ledger Controls, verify new and
re-issued coupon books, and mail notices.
19
Exhibit A-2
Account Processing Services
---------------------------
Fiserv will provide Client with the following Account Processing Services at the
fees and prices indicated:
1. Fees to be paid monthly by Client to Fiserv for performance of the services
---------------------------------------------------------------------------
outlined in Section 1:
----------------------
A. Monthly Processing Fees The Client will be charged a monthly
fee of $ 0.70 per account on file (Deposit, Loan). The Client
will be charged a monthly fee of $ 0.15 per account on file
(General Ledger).
Monthly Core Processing Minimums:
Year 1 $2,500.00
Year 2 $2,500.00
Year 3 $2,800.00
Year 4 $2,800.00
Year 5 $3,000.00
The initial two (2) months core account processing will be provided at
no charge,
B. Loan Coupon Books* $ 2.05 Each (Postage Additional)
-----------------
C. Furnished by Client*
-------------------
Postage/Courier Fees
Telephone Lines
Modems and Annual Modem Maintenance In-Bank Terminal Equipment/Software
In-Bank Equipment/Software Maintenance
D. Conversion/Installation Fees $ 5,000.00
----------------------------
A flat fee of $ 5,000.00 will be charged to convert to Premier 11 plus
travel and related expenses, TRAVEL AND RELATED EXPENSES SHALL NOT
EXCEED $12,000.00.
E. Supplies
--------
All forms necessary to the daily operations of Fiserv's System can be
purchased through Fiserv at prices quoted at the time of purchase.
F. Miscellaneous Services
----------------------
30 Smart Reports will be provided and included in Base Monthly
Processing Fee. Additional services provided per Exhibit A-4.
G. Platform/Teller Interfaces $250.00 Each Per Function (i.e
Deposit/Loan/Teller)
--------------------------
20
Exhibit A-2
H. ATM/EFT Service
---------------
Installation Fees:
One-Time Charge $ 5,000.00
Per ATM Connect Fee 1st ATM Included, Additional $500.00
Per Network 1st Network Included, Additional $500.00
Surcharge Set-Up Included included
Surcharge Set-Up Per ATM 1st ATM Included, Additional $150.00
Communication Install Fee Pass Through
Monthly Charges
Fiserv Support $ 400.00
Network Support per Network $ 100.00
Card Base Record $ 0.06 Per Card
$ 100.00 Minimum
Per ATM Connect Fee $ 150.00 Per Device
Per ATM 7 X 24 Monitoring Fee $ 15.00 Per Device
Communication Line Cost Pass Through
Per Transaction Fees
ON/US Transaction Fees $ 0.10
Foreign Transaction Fees $ 0.10
Surcharge Transaction Fees $ 0.15 In Addition to Above
Transaction Fees
ATM Cards
Plastic Stock Pass Through
New Card Order $ 1.75 Per Card
PIN Mailer $ 0.35 Per Mailer
Postage Pass Through
Non-Atlanta Host Authorization
One-Time Set-Up $ 1,500.00
Monthly Charge $ 500.00 Base Plus $.06 Per Card
Record On File
Positive Balance File (PBF)
One-Time Set-Up $ 1,500.00
Monthly Charge $ 600.00
Communications Charges Pass Through
Visa Debit Processing Per Separate Quote
I. End of Year Processing
----------------------
Per fee schedule published annually.
21
J. On-Line Terminal Support
------------------------
Exhibit A-3
Hours of Operation
------------------
The Fiserv Account Processing Center will be in operation for On-Line Accounting
Processing Services in accordance with the following:
Monday 8:00 A.M. - 7:00 P.M.
Tuesday 8:00 A.M. - 7:00 P.M.
Wednesday 8:00 A.M. - 7:00 P.M.
Thursday 8:00 A.M. - 7:00 P.M.
Friday 8:00 A.M. - 7:00 P.M.
Saturday 8:00 A.M. - 4:00 P.M.
All times stated are in accordance with prevailing local times for the Fiserv
Account Processing Center. The Fiserv Account Processing Center will observe
national holidays, and will be closed for on-line operations.
22
Exhibit A-4
MISCELLANEOUS SERVICES
REQUEST FEE
------- ---
BDS050-SMART Reports & Pull Files $50 Per Report/File
BDS061/BDS062 $50 Per Month
Safe Deposit Box Billing
Safe Deposit Box Trial and Past Due Reports
BDS071 $50 Per Request
Debit Card Reference Journal
BDS072 $50 Per Request
Debit Card Billing
BDS200 $85 Per Request
"On-Demand' Statement Cycles
BDS221 $340 Per Request*
DDA Month End Account Profitability Analysis *One execution of this program is included
with month end processing. Charge would
only apply to requests other than month
end.
BDS 252 $170 Per Request*
DDA Balance Range Report *One execution of this program is included
with month end processing. Charge would
only apply to requests other than month
end.
BDS253 $100 Plus $.35 per Confirmation
Audit Confirmations - DDA
BDS255 $85 Per Request
Account Code/Cycle Distribution Report
BDS258 Standard at month end only. Other
DDA Holds Report requests $85.00
BDS262 $85 Per Request
Report Errors Concerning DDA Stmts.
BDS352 $170 Per Request*
SAV Balance Range Report *One execution of this program is included
with month end processing. Charge would
only apply to requests other than month
end.
BDS353 $100 Plus $.35 per Confirmation
Audit Confirmations - SAV
23
Exhibit A-4
BDS365 $85 Per Request
Account Code/Cycle Distribution Report
BDS358 Standard at month end only. Other
Report of SAV Holds requests $85.
BDS360 Standard at month end only. Other
Automatic Transfers to DDA Report requests $85.
BDS361 Standard at month end only. Other
Savings Balances Subject to Rate Change requests $85.
BDS452 $170 Per Request*
CD Analysis Reports *One execution of this program is
included with month end processing.
Charge would only apply to requests
other than month end.
BDS453 $100 Plus $.35 per Confirmation.
Audit Confirmations - CD
BDS455 $85 Per Request
Account Code/Cycle Distribution Report
BDS458 $85 Per Request
Report of CD Holds
BDS531 Standard at month end only. Other
Loan Status Report - Reports by Product requests $85.
BDS534 Standard at month end only. Other
FHA Title I Home Improvement Loan Reporting requests $85.
BDS544 Standard at month end only. Other
Escrow Addenda Reference Journal requests $85.
BDS545 Standard at month end only. Other
Escrow Review Conversion requests $85.
BDS552 $170 Per Request*
Loan Analysis Report *One execution of this program is
included with month end processing.
Charge would only apply to requests
other than month end.
BDS553 $100 Plus $.35 per Confirmation
Audit Confirmations - Loans
BDS554 Standard at month end only. Other
Dealer, Source or Participated Report requests $85.
24
Exhibit A-4
BDS555 $85 Per Request
Line Transcript Statement Report
BDS556 $85 Per Request
Note Transcript Statement Report
BDS557 $85 Per Request
Note Statement
BDS560 $170 Per Request*
Direct/Indirect Liability Reporting *One execution of this program is
included with month end
processing. Charge would only
apply to requests other than month
end.
BDS564 $85 Per Request
Extracts Source ID Numbers
Updates Market Prices
BDS566 $85 Per Request*
HMDA Reporting Code Analysis Reports *One execution of this program is
included with month-end processing.
BDS652 $25 Per application plus $.15 per
Cross Application Processing SMART account. Weekend processing only.
BDS952 $50 Per Request
Specifications Reports
FMS642 $50 Per Request
Move Projected Budget to Current Budget
ADS003 $100 Per Applications $.0l Per Account on
Mass Maintenance File.
Specification Changes $25 Per Quarter Hour.
Special Programming or Consulting $85 Per Hour.
Computer Time for Special Client Request $85 Per Quarter Hour.
Reshipping of Print Files $20 Per File
$100 Minimum
$500 Maximum per Processing Day
25
Exhibit A-4
PAPERLESS ITEM MODULE (PIM) SERVICES
------------------------------------
Fiserv will provide PIM Services per the fees outlined below:
o ACH Formatted File Input Service
Implementation Fee $85.00 Per Hour
$225.00 Minimum
Per Input Formatted File $.01 Per Transaction
$30.00 Minimum Per File
o ACH Origination Service
Implementation Fee $150.00
Per Monthly Fee $50.00 Plus $.0l Per Transaction
$100.00 Monthly Minimum
Miscellaneous Service Fees subject to change.
26
Exhibit A-5
EF7 100/EF7900/PWTeller $2,500 $250
PLUS $2,500 $250
Sharp 6500 $2,500 $250
Platform Transfer CFI Loan/CFI Deposit/Bankers N/A Included
System Deposit/Bankers System Loan/Formation Technologies Loan
Ancillary Module One-Time Fees and Monthly Fees subject to change.
Implementation travel and related expenses additional.
27
Exhibit A-7-1
VISA Debit Processing Fee Schedule
----------------------------------
BELOW 1,000 CARDS
I. SYSTEM INSTALLATION
Setup Fee $ 5,000.00 Per BIN
II. MONTHLY PROCESSOR FEES
Monthly Base Fee $ 300.00 per BIN/per Month
Authorization Support $ 0.10 per transaction
(each authorized transaction)
Settlement Support
(each settlement transaction) $ 0.10 per transaction
File Residency Support
(each card on file) $ 0.12 per card/per month
Computer/Fiche Reports $ 2.00 per page
----------------------
$ 50.00 per month minimum
File Transmissions $ 400.00 per month
(CMF/OPC/ACH) Support
Lost/Stolen Card Reporting $ 10.00 each
(after hours)
CWB/Negative File Updates $ 1.00 each
-------------------------
Ill. BACK OFFICE SERVICES (WITHOUT NEURAL
ANALYSIS [OPTIONAL] $ 0.25 per card/per month
(Performed by HONOR) $ 200.00 monthly/minimum
IV. CARD PRODUCTION $ 1.75 per card and PIN
(Includes embossing/encoding, card carrier, envelopes,
and PIN reminder/not including postage)
V. PREPARATION OF VISA QUARTERLY $ 150.00 per quarter
REPORTING
(Visa Associate Members Only)
VI. VISA FEES AND OTHER SERVICES
Customer will be responsible for all VISA fees, communication-related
expenses and all other items not specifically identified in this
exhibit. Visa V.I.P. Variable Access Fee will be charged to customer
based on volume processed through the VisaNet Access Point (VAP).
VII. This fee schedule pertains to new programs of less than 1,000 cards.
Once card base exceeds 1,000, the standard fee schedule is applicable
Exhibit A-7
ACCEPTED BY:
Xxxxx River Community Bank Fiserv Solutions, Inc.
------------------------ -----------------------
Authorized Signature Authorized Signature
Printed Name: Printed Name:
Title: Title:
------------------------ ------------------------
Date Date
28
Exhibit H
FISERV ATLANTA DISASTER RECOVERY AGREEMENT
ON-LINE SERVICES
I. A Disaster shall mean any unplanned interruption of the operations of or
inaccessibility to Fiserv's data center which appears in Fiserv's reasonable
judgment to require relocation of processing to a primary recovery location.
Fiserv shall notify Client as soon as possible after it deems a service outage
to be a Disaster. Fiserv shall move the processing of Clients standard on-line
services to a primary recovery location as expeditiously as possible and shall
coordinate the cut-over to back-up data lines with the appropriate carriers.
Client shall maintain adequate records of all transactions during the period of
service interruption and shall have personnel available to assist Fiserv in
implementing the switchover to the primary recovery location. During a Disaster,
optional or on-request services shall be provided by Fiserv only to the extent
that there is adequate capacity at the primary recovery location and only after
stabilizing the provision of base on-line services.
II. Fiserv shall work with Client to establish a plan for alternative data
communications in the event of a Disaster.
III. Fiserv shall test its Disaster Recovery Services Plan BY conducting an
annual test. Client agrees to participate in and assist Fiserv with such
testing. Test results will be made available to Client's management, regulators,
internal and external auditors, and (upon request) to Client's insurance
underwriters.
IV. Client understands and agrees that the Fiserv Disaster Recovery Plan is
designed to minimize but not eliminate risks associated with a Disaster
affecting Fiserv's data center. Fiserv does not warrant that service will be
uninterrupted or error free in the event of a Disaster. Client maintains
responsibility for adopting a disaster recovery plan relating to disasters
affecting Client's facilities and for securing business interruption insurance
or other insurance as necessary to properly protect Client's revenues in the
event of a disaster.
V. Monthly subscription fee $l00.00, plus $.0l per account on file.
ACCEPTED BY:
XXXXX RIVER COMMUNITY BANK FISERV SOLUTIONS, INC.
-------------------------------- -------------------------------
Authorized Signature Authorized Signature
Printed Name: Printed Name: Xxxxxxx X. Xxxxxx
Title: Title:President Fiserv Atlanta
------------------------------- --------------------------------
Date Date
29
