Exhibit 10.9
CONFIDENTIAL
AGREEMENT
between
Fiserv Solutions, Inc.
255 Fiserv Drive
Brookfield, WI 53045-5815
and
Westsound Bank
190 Pacific Avenue
Bremerton, WA 98337
Date: ***
(FISERV LOGO)
(C) Copyright 2000 by Fiserv Solutions, Inc.
All Rights Reserved
This document contains proprietary and confidential information of Fiserv
Solutions, Inc. and may not be copied, published, disclosed or distributed
without the express written consent of Fiserv Solutions, Inc. The material in
this document, including terms, procedures, fees and other conditions, comprise
an agreement to consider which will remain valid for ninety (90) days from ***.
AGREEMENT dated as of August 11, 2006 ("Agreement") between FISERV SOLUTIONS,
INC., a Wisconsin corporation ("Fiserv"), and Westsound Bank ("Client").
Fiserv and Client hereby agree as follows:
1. Term. The initial term of this Agreement shall end *** from *** 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 additional term(s) of ***. This Agreement shall
be effective on ***.
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 B - Item Processing Services
Exhibit C - EFT Services
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
***
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) Implementation Services. Fiserv will provide services (i) to convert
Client's existing applicable data and/or information to the Fiserv Services;
and/or (ii) to implement the Fiserv Services. These activities are referred to
as "Implementation Services". Client agrees to cooperate with Fiserv in
connection with Fiserv's provision of Implementation Services and to provide all
necessary information and assistance to facilitate the conversion and/or
implementation. Client is responsible for all out-of-pocket expenses associated
with Implementation Services. Fiserv will provide Implementation 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) Fees for Fiserv Services for the month as specified in the Exhibits;
(ii) out-of-pocket charges for the month payable by Fiserv for the account
of Client; and
(iii) Taxes (as defined below) thereon (collectively "Fees").
Fiserv shall timely reconcile Fees paid by Client for the Fiserv Services for
the month and the fees and charges actually due Fiserv based on Client's actual
use of Fiserv Services for such month. Fiserv shall 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 Fees billed to reflect appropriate
changes in actual use of Fiserv Services. 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 as set forth in the Exhibits. Such
out-of-pocket expenses may be changed from time to time upon notification of a
fee change from a vendor/provider. The Fees do not include, and Client shall be
responsible for, furnishing
WESTSOUND BANK AUGUST 11, 2006 2 (FISERV LOGO)
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.
(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 Fiserv's net income.
(d) 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 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 Client's 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 Client's 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.
(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 Client's
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; Client agrees to pay Fiserv's standard fee for recertification of
the Fiserv System resulting therefrom.
(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 Clients site during normal business hours for
Implementation Services and shall cooperate with Fiserv personnel in their
performance of 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 or discrepancies. 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 otherwise capable of passing and/or
accepting data from and/or to the Fiserv System.
6. Ownership and Confidentiality. (a) Definition.
(i) Client Information. "Client Information" means: (A) confidential plans,
customer lists, 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 (B) 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
WESTSOUND BANK AUGUST 11, 2006 3 (FISERV LOGO)
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 ("Discloser"). 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. Fiserv specifically agrees that it will not use any non-public
personal information about Client's customers in any manner prohibited by Title
V of the Gramm-Leach-Bliley Act. 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 care. Recipient may only use information in accordance with the purpose of
this Agreement. 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 Recipient's business activities ("Residuals"),
provided that in so doing, Recipient does not breach Its obligations under this
Section. However, this does not give Recipient the right 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 thereto, including, but not
limited to, alterations, decompiling, disassembling, modifications, and reverse
engineering thereof.
(e) Information Security. Fiserv has Implemented and shall maintain
appropriate measures designed to meet the objectives of the guidelines
establishing information security standards as adopted by any federal regulatory
agencies having Jurisdiction over Client's affairs. These measures include
appropriate disposal of consumer information as required, and taking appropriate
actions to address incidents of unauthorized access to Client's sensitive
customer information, including notification to Client as soon as possible of
any such incident.
(f) 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, 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.
(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 follows the procedures
described in
WESTSOUND BANK AUGUST 11, 2006 4 (FISERV LOGO)
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 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 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.
THE WARRANTIES STATED HEREIN 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: (i) no
contractual obligations exist that would prevent Client from entering into this
Agreement; (ii) it has complied with all applicable regulatory requirements; and
(iii) it 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 (iv) the use by Client of the Fiserv System in a manner other than that
provided in this Agreement; and (v) 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 (v) hereof shall not
preclude Client's 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 FISERV'S 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. FISERV'S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF
ACTION RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY
CLIENT TO FISERV FOR THE FISERV SERVICE RESULTING IN SUCH LIABILITY IN THE ***
PERIOD PRECEDING THE DATE THE CLAIM ACCRUEL. FISERV'S AGGREGATE LIABILITY FOR A
DEFAULT RELATING TO THIRD PARTY EQUIPMENT OR SOFTWARE SHALL BE LIMITED TO THE
AMOUNT PAID BY CLIENT FOR THE EQUIPMENT OR SOFTWARE.
(b) Lost Records. If Client's 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 Client's possession.
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 Clients 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 assist Fiserv with such test,
if requested by Fiserv. Upon Client's request, test results will be made
available to Client's management, regulators, auditors, and insurance
underwriters.
WESTSOUND BANK AUGUST 11, 2006 5 (FISERV LOGO)
(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
stating, 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 Client's access to and use of Fiserv Services.
Any invoice submitted by Fiserv shall be deemed correct unless Client provides
written notice to Fiserv within 15 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.
(d) Defaults. If Client:
(i) defaults in the payment of any sum of money due and fails to remedy
such breech as set forth in Section 11(b);
(ii) breaches this Agreement in any material respect or otherwise defaults
in any material respect in the performance of any of its obligations in
Section 11(a); 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.
(e) Convenience. Client may terminate this Agreement by paying termination
fee based on the remaining unused term of this Agreement, the amount to be
determined by multiplying Client's largest 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) 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 a Fiserv standard 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) or (e) 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.
(g) 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. Dispute Resolution. (a) General. Except with respect to disputes
arising from a misappropriation or misuse of either party's proprietary rights,
any dispute or controversy
WESTSOUND BANK AUGUST 11, 2006 6 (FISERV LOGO)
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 10 days after the first party
seeking arbitration has given written notice, then the arbitration shall be
heard by 3 arbitrators, 1 chosen by each party, and the third chosen by those 2
arbitrators. The arbitrators will be selected from a panel of persons having
experience with and knowledge of information technology and at least 1 of the
arbitrators selected will be an attorney. Discovery shall not be permitted. A
hearing on the merits of all claims for which arbitration is sought by either
party shall be commenced not later than 60 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 hearing. 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 and the Federal Rules of Evidence. The
arbitrators shall apply the substantive law of the State of Washington, 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
Milwaukee, Wisconsin, the proceedings to resolve the second such dispute shall
be held in Kitsap County, Washington, and the proceedings to resolve any
subsequent disputes shall alternate between Milwaukee, Wisconsin and Kitsap
County, Washington.
13. Insurance. Fiserv carries the following types of insurance policies:
(i) Commercial 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 $1 million 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, as
may be required by law or regulation, Fiserv provides for periodic independent
audits of it 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.
(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 Washington, 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
WESTSOUND BANK AUGUST 11, 2006 7 (FISERV LOGO)
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.
(l) 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.
(m) Publicity. Client and Fiserv shall have the right to make general
references about each other publicly and the type of services being provided
hereunder to third parties, such as auditors, regulators, financial analysts,
and prospective customers and clients. The parties shall mutually agree on a
press release relating to the execution of this Agreement. In conjunction with
this, the party initiating such release shall give the other party a reasonable
opportunity to review and comment on the content thereof prior to its release.
(n) Independent Contractors. Client and Fiserv expressly agree they are
acting as independent contractors and under no circumstances shall any of the
employees of one party be deemed the employees of the other for any purpose.
This Agreement shall not be construed as authority for either party to act for
the other party in any agency or other capacity, or to make commitments of any
kind for the account of or on behalf of the other except as expressly authorized
herein.
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:
Westsound Bank Fiserv Solutions, Inc.
By: /s/ Mark Freeman By:
--------------------------------- ------------------------------------
Name: Mark Freeman Name: Sam Langham
Title: Senior Vice President, Title: President, Western Region
Chief Financial Officer
Date: *** Date:
----------------------------------
WESTSOUND BANK AUGUST 11, 2006 8 (FISERV LOGO)
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 the fees and other charges for the Account
Processing Services specified in Exhibit A-1. The fees listed in Exhibit A-2 are
valid for the account processing services Client contracts for as of the date of
the Agreement. If Client seeks additional services from Fiserv during the term
of the Agreement, Fiserv's fees therefor will be quoted to Client upon request.
Fiserv agrees to give at least 30 days notice to Client of any changes in the
rules and procedures established for processing, unless such changes are caused
by changes made by the Federal Reserve System or otherwise beyond the control of
Fiserv, not permitting Fiserv to give such advance notice. Fiserv reserves the
right to make such changes to the Exhibits without notice as may be necessary to
cover any increases in Federal Reserve System costs and charges or in other
costs and charges beyond Fiserv's control, including changes required by
applicable law or regulatory activity. The fees listed in Exhibit A-2 may be
changed annually effective each January 1 beginning in the year 2007 upon 30
days notice to Client. Each change shall be limited to the change in the U.S.
Department of Labor, Consumer Price Index for All Urban Households - Pacific
Northwest, published by the United States Department of Labor, Bureau of Labor
Statistics ("CPI") for the 12-month period preceding each January 1 not to
exceed 3% unless the CPI exceeds 6%. Any percent or fraction thereof above 6%
will be added to the 3%. Fiserv will deliver to Client the notification of the
fee change
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 Client's accounts, Fiserv shall, at its expense, promptly
re-compute 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 providers. 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
additional hours, during which time Client may use Services at its option and
subject to additional charges.
6. Performance Standards. The Fiserv performance standards for the Account
Processing Services ("Performance Standards") are set forth in Exhibit A-4. In
no event shall Fiserv be liable to Client for damages of any nature arising
solely from failure by Fiserv to meet Performance Standards.
7. 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 systems security utilizing commercially reasonable
standards to protect Client Files from unauthorized access in compliance with
applicable governmental regulations.
(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.
8. Processing Priority. Fiserv does not subscribe to any processing
priority; all users receive equal processing consideration.
9. 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% 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.
10. Regulatory Supervision. By entering into this Agreement, Fiserv agrees
that 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.
WESTSOUND BANK AUGUST 11, 2006 9 (FISERV LOGO)
ACCOUNT PROCESSING SERVICES
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:
Westsound Bank Fiserv Solutions, Inc.
By: /s/ Mark Freeman By:
--------------------------------- ------------------------------------
Name: Mark Freeman Name: Sam Langham
Title: Senior Vice President, Title: President, Western Region
Chief Financial Officer
Date: *** Date:
----------------------------------
WESTSOUND BANK AUGUST 11, 2006 10 (FISERV LOGO)
EXHIBIT A-1
ACCOUNT PROCESSING SERVICES
Client and Fiserv agree as follows:
1. Fiserv Responsibilities. Fiserv will provide Client with the following ITI
Software Account Processing Services for the fees and charges out lined in
Exhibit A-2:
a. Base Services:
- Account Analysis
- ACH Processing - Item Entry System (IES)
- ATM Processing/Batch Interface
- Automatic Account Transfers
- Bulk File Processing
- Certificates of Deposits
- Commercial Loans
- Combined Statements
- Consumer Loans
- Standard Statement Formats
- Customer Information File (CIF)
- Demand Deposit Accounting
- Financial Management System (G/L)
- Host Disaster Recovery Back Up (FM clients not Included)
- Investor Reporting, Standard Core
- Lines of Credit
- Loan Account Processing
- Loan Investor Reporting
- Mortgage Loans
- On-line NSF/OD Return Processing (EIM)
- Product Release Installation Management
- Savings Account Processing
- Sweep Accounting
- Tape - (NCP Format) Fiserv Forms & Graphics or Deluxe Generation
for Coupon Books (Weekly) - 1 included
- Tape (TRW) Format Generation for Credit Bureau (Monthly) - 1
included
- Transaction Management System (TMS)
b. Interfaces:
- ATM Positive Balance File
- Premier Deposit Platform
- Premier Teller
- Fiserv Item Processing
c. Network Support Services:
- Data Communication line between Fiserv's account processing
center and Client's primary banking location.
- Staffing and maintenance to undertake investigations, inquiries,
and problem resolution associated with the Network Support
Services software.
- Applications support personnel will be available to assist and
support Client's support services staff.
- Account Management Staff to call on Client.
d. Training:
- Refresher training available (at then current fees)
e. Help Desk Services:
- Staffing and maintenance to undertake investigations, inquiries,
and problem resolution associated with the Application Processing
Services software.
- Applications support personnel will be available to assist and
support Client's support services staff.
WESTSOUND BANK AUGUST 11, 2006 11 (FISERV LOGO)
ACCOUNT PROCESSING SERVICES
- Account Management Staff to call on Client.
2. Client Responsibilities. Client will be responsible for the following
activities:
a. Personnel:
- Project Manager
- Staff necessary to assist in Implementation Services
b. Third Party Software:
- Evaluation, selection, licensing, and procurement of maintenance
for third party application software as mutually agreed by Fiserv
and Client.
- Obtain any necessary consents to utilize third party software
licensed to Client as of the Effective Date, which consents shall
be provided to Fiserv (the obtaining of such consents shall be a
condition precedent to performance by Fiserv of its obligations).
- Advising Fiserv of any connections, upgrades, or
enhancements that become available from third party vendors so
that they may be installed on a mutually agreeable schedule and
in accordance with the third party vendor's recommended time
schedule.
- Providing Fiserv with a complete copy of all license and
maintenance agreements related to third party software.
WESTSOUND BANK AUGUST 11, 2006 12 (FISERV LOGO)
EXHIBIT A-2
ACCOUNT PROCESSING SERVICE FEES
Fiserv will provide Client the following Account Processing Services at the fees
and prices indicated:
1. ACCOUNT CHARGES (Per Month, Per Account)
Account Range Tiers
*** ...................................................................... $***
*** ...................................................................... $***
*** ...................................................................... $***
*** ...................................................................... $***
Transaction charges ...................................................... $***
Open and closed accounts of the following types are included in the monthly
per account totals for billing purposes: Demand Deposit, Savings,
Certificates of Deposit, Loan Notes and General Ledger Accounts.
2. OTHER MONTHLY CHARGES
Monthly
Rate Charge
---- -------
Data Communications Line Charges *** $***
Courier (where applicable) *** $***
Fiserv Local Print (per page) *** $***
SMART Reports ($*** per run) $***
(NOTE: PRIME DEPLOYED TO REPLACE SMART REPORTS)
** Monthly charge is calculated on applicable volumes.
3. OPTIONAL MODULES & SERVICES
Monthly
Service Fee
-----------
ATM Interface - Standing Behind the Switch (Fiserv EFT) $***
Accounts Payable $***
Bulkfile Module (transmission only) $***
Transaction Management System (TMS) $***
Delinquent Child Support Module - State (quarterly run & charge) $***
DEPCON: Branch Communications $***
Data Communications File Transfer $***
Express Exception Item Module $***
Fixed Assets $***
Loan Custodial Module $***
MoneyGram Interface $***
OFAC-Quarterly Reports $***
OFAC Online Module $***
Paperless Item Module (ACH Origination) $***
Paperless Item Module (per file) $***
Platform Transfer Module $***
Retirement Account Reporting Module $***
Safe Deposit Accounting System $***
Stockholder Accounting System $***
Test Bank $***
4. ONE-TIME COSTS
Test Bank Set-up Fee ............... $***
MoneyGram Interface Installation ... $***
WESTSOUND BANK AUGUST 11, 2006 13 (FISERV LOGO)
ACCOUNT PROCESSING SERVICE FEES
DIRECTOR SERVICED
Monthly Fees
------------
Director Seat Licenses *** Named & *** Concurrent) $***
Enterprise License with *** interface less than *** accts $***
Workstations - Blocks of *** $***
Access to Atlanta Archive for Check Images $***
Monthly per Account Fees $***
- - Open & Closed Accounts DDA, SAV, COD, LAS
* SQL additional
** Plus applicable tax & Annual Maintenance fees
All charges are will be subject to the same terms and conditions currently
existing within the contract.
PREMIER II TELLER
Monthly Fees
------------
Premier II Teller Enterprise License less than 24,000 accls $***
Maintenance Fees for Premier II Teller (2 yrs.) $***
Above based on ***
PREMIER PLATFORM
Monthly Fees
------------
Premier II Platform 10 Seats $***
Additional Seats - per seat $***
Maintenance Fees for Premier Platform (2 yrs.) $***
Above based on ***
PREMIER PRIME
Monthly Fees
------------
Premier Prime Data Warehousing & Reports $*** Monthly
- - Monthly Extract
Cognos / Impromptu License (1 License) Included
PREMIER ECOM
Monthly Fees
------------
Premier eCom Internet Banking Solution $*** Monthly
- - Per Transaction Fee $*** Monthly
- - IPay Interface $*** Monthly
PREMIER ECORP
Monthly Fees
------------
Premier eCorp Internet Banking Solution $*** Monthly
- - Per Transaction Fee $*** Monthly
WESTSOUND BANK AUGUST 11, 2006 14 (FISERV LOGO)
EXHIBIT A-3
ACCOUNT PROCESSING HOURS OF OPERATION
The Fiserv Los Angeles Data Center will be in operation for on-line Account
Processing Services in accordance with the following:
Monday 7:00 a.m. - 7:00 p.m.
Tuesday 7:00 a.m. - 7:00 p.m.
Wednesday 7:00 a.m. - 7:00 p.m.
Thursday 7:00 a.m. - 7:00 p.m.
Friday 7:00 a.m. - 7:00 p.m.
Saturday 8:00 a.m. - 2:00 p.m.
Sunday Not on-line
All times stated are in accordance with prevalling local times for the Fiserv
Los Angeles Data Center. The Fiserv Los Angeles Data Center observes national
holidays, and will be closed for on-line operations.
WESTSOUND BANK AUGUST 11, 2006 15 (FISERV LOGO)
EXHIBIT A-4
ACCOUNT PROCESSING PERFORMANCE STANDARDS
Client and Fiserv agree as follows:
1. One-Line Availability - Fiserv's standard of performance shall be on-line
availability of the Fiserv System (exclusive of telecommunications and
terminals) *** of the time that it is scheduled to be so available over a ***
period ("Measurement Period"). Actual on-line performance will be calculated
monthly by comparing the number of hours that the Fiserv 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. Preventive maintenance will not be
scheduled during normal online processing hours. Preventive maintenance will be
performed on only mission critical equipment during on-line processing hours.
Downtime caused by reasons beyond Fiserv's control will not be considered in the
statistics.
2. Report Availability - Fiserv's standard of performance for report
availability shall be that, over a Measurement Period *** 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 Fiserv and Client have mutually agreed in writing are
necessary to properly account for the previous day's activity 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.
On time delivery for Critical Daily Information shall be 7:00 a.m. If delivered
to Client's remote print facility and 8:30 a.m. If delivered to Client by
courier. A significant error is one that impact's Client's ability to properly
account for the previous days activity and/or properly account for overdraft,
NSF, or Return items. Actual performance will be calculated monthly by comparing
the total number of reports scheduled to be available from Fiserv to the number
of reports that were available on time and without error.
3. Response Time - Fiserv's response time performance standard for *** of
transactions shall be *** for a teller transaction or *** seconds for a terminal
transaction on average as determined from measurements taken over a Measurement
Period. A transaction shall mean a basic deposit, withdrawal, or monetary
transaction. The measurement shall begin when the host computer receives the
data transmitted from the central processor and shall end when the first data
element has been received at the controller. Fiserv will log and retain a record
of response time maintaining appropriate analytical reports. Fiserv will work
with Client and third party vendors to ensure commercially reasonable response
time.
4. Client Inquiries - All Client Inquiries will be acknowledged by Fiserv within
*** of request. A plan for resolution of the inquiry will be completed by Fiserv
within 24 hours of the inquiry unless a mutually agreeable time is accepted by
Fiserv and Client.
WESTSOUND BANK AUGUST 11, 2006 16 (FISERV LOGO)
EXHIBIT B
ITEM PROCESSING SERVICES
Client agrees with Fiserv as follows:
1. Services. Fiserv will provide Client the Item Processing Services ("Item
Processing Services") specified in Exhibit B-1 and, if applicable, Exhibit B-5.
2. Due Diligence. All necessary information concerning Client's
requirements for Item Processing Services shall be set forth in a business
assumptions list (the "IP Business Assumptions List"), which Client shall
complete prior to Fiserv rendering Item Processing Services hereunder. Client
acknowledges that Fiserv has relied on the information contained in the IP
Business Assumptions List in determining pricing and performance levels for the
Item Processing Services. In the event of material change(s) in the actual
volumes, types of items, and delivery times for work received from Client, as
compared to the IP Business Assumptions List, Fiserv shall have the right to
adjust its fees and/or performance standards accordingly upon 30 days' notice to
Client. Any increase in fees resulting form this due diligence process shall not
be subject to the CPI limitations as set forth in Section 3 below.
3. Fees. Client shall pay Fiserv the fees and other charges for Item
Processing Services as specified in Exhibit B-2 and if applicable, Exhibit B -
5. Fees listed in Exhibits B-2 and B-5 are valid for item Processing Services
and locations that Client contracts for as of the Effective Date. If Client
wishes to obtain additional services and/or use additional locations from Fiserv
during the term of the Agreement, Fiserv fees for available services will be
quoted to Client upon request. Fiserv agrees to give at least 30 days' notice to
Client of any changes in the rules and procedures established for processing
items, unless such changes are caused by changes made by the Federal Reserve
System or otherwise beyond Fiserv's control, not permitting Fiserv to give such
advance notice. Fiserv reserves the right to make such changes to the Exhibits
without notices as may be necessary to cover any increases in Federal Reserve
System costs and charges or in other costs and charges beyond Fiserv's control,
including changes required by applicable law or regulatory activity. The fees
listed in Exhibit B-2 and B-5 may be changed annually effective each January 1
beginning in the year 2007 upon 30 days notice to Client. Each change shall be
limited to the change in the U.S. Department of Labor, Consumer Price Index for
All Urban Households - Pacific Northwest, published by the United States
Department of Labor, Bureau of Labour Statistics ("CPI") for the 12-month period
preceding each January 1 not to exceed 3% unless the CPI exceed 6%. Any percent
or fraction thereof above 6% will be added to the 3%. Fiserv will deliver to
Client the notification of the fee change.
4. Performance Standards. Fiserv will perform the Item Processing Services
in accordance with the performance standards specified in Exhibit B-3 and, if
applicable, Exhibit B-5 (the "Performance Standards"), subject to Client meeting
its performance obligations as set forth in Exhibits B-1, B-3, and B-5. Fiserv
shall not be liable for any damages or losses to Client for errors occurring
within the limits of the Performance Standards. For each month during the term
of this Exhibit B, Fiserv will calculate and prepare a performance standard
report within 45 days following the month to which such report relates. Client
will have 15 days to review such report and provide written notice to Fiserv of
any discrepancies relating to such report. If Client provides such notice and
the discrepancies have been resolved between Fiserv and Client, or in the
alternative if Client fails to give notice of any discrepancies within the
required time frame, the report will be final.
5. No Fiduciary Relationship. Fiserv shall perform such Item Processing
Services for which Fiserv shall subscribe as agent of Client, and Fiserv shall
not have by reason of this Agreement a fiduciary relationship with respect to
Client.
6. Lost, Destroyed, and Misplaced Items. Fiserv assumes no liability for
any item lost, destroyed, or misplaced while in transit before the item
physically arrives at the premises of Fiserv and is received by Fiserv. In the
event any items are lost, destroyed, or misplaced, and such event is not due to
gross negligence or intentional misconduct by Fiserv, Client shall be solely
responsible for the costs and expenses incurred by Fiserv in reconstructing any
such items and for any damages or other losses that may be incurred by Fiserv
due to the collection of such items. In the event Fiserv loses, destroys, or
misplaces deposited items as a result of gross negligence or intentional
misconduct after acceptance of said deposit, Fiserv shall be liable only for
reasonable reconstruction costs of the deposit. Reasonable reconstruction costs
shall be only those costs that arise from reconstruction of a microfilmed
deposit. Fiserv shall not be liable for reconstruction costs associated with a
deposit for which Client cannot provide a microfilmed record of such item(s)
contained in the deposit. In no even shall Fiserv be liable for the face value
of any lost or missing item(s).
7. Governmental Regulation. This Exhibit shall be governed by and is
subject to: the applicable laws, regulations, rules, terms and conditions, as
presently in effect or hereafter amended or adopted, of the United States of
America, Federal Reserve Board, Federal Reserve Banks, Federal Housing Finance
Board, and any other governmental agency or instrumentality having jurisdiction
over the subject matter of this Exhibit. Client agrees to abide by such
requirements and to execute and deliver such agreements, documents, or other
WESTSOUND BANK 1 (FISERV LOGO)
forms as may be necessary to comply with the provisions hereof, including,
without limitation, agreements to establish Fiserv as Client's Agent for
purposes of delivery of items processed hereunder from or to the Federal Reserve
Banks. Any such agreements shall be made a part of this Agreement and are
incorporated herein. A change or termination of such laws, regulations, rules,
terms, conditions, and agreements shall constitute, respectively, a change or
termination as to this Exhibit. Client data and records shall be subject to
regulation and examination by government supervisory agencies to the same extent
as if such information were on Client's premises.
8. Client Responsibilities. Client shall submit all items to Fiserv and
otherwise comply with all Client obligations in accordance with the requirements
set forth in Exhibits B-1 and B-5. Client shall maintain adequate supporting
materials (i.e. exact copies of items, records, and other data supplied to
Fiserv) in connection with the provision of Item Processing Services. Client
shall provide written notice of confirmation and/or verification of any
instructions given by Client, its agents, employees, officers, or directors to
Fiserv in connection with Fiserv's provision of Item Processing Services. Client
shall be responsible for balancing its accounts each business day and notifying
Fiserv, within 7 business days, of any errors or discrepancies. In the event
Fiserv discovers an error or defect (Client understands that Fiserv shall be
under no duty to discover any such error or defect), Fiserv is authorized, in
its sole discretion, to correct any such error or defect and to make any
adjustments in order to correct such error or defect.
9. Definition of Item. An item is defined as all checks and other documents
presented to Fiserv for processing, transactional entries generated by Client,
such as teiler cash tickets, general ledger entries, loan entries and all
control documents such as batch tickets.
10. Check 21 Items: When Fiserv prepares "Substitute Checks" (as that term
is defined in the Check Clearing for the 21st Century Act, known as Check 21 and
implemented through Regulation CC) to facilitate the deposit and collection of
items as required by Client, Client understands and agrees that it is the
Reconverting and Truncating Bank and is responsible for all warranties or
indemnifications as defined in Check 21. Fiserv shall have no obligation to
screen items for legal compliance. Client agrees that Fiserv shall not be
liable for any damages or otherwise for any claims, obligations, or causes of
action regarding any such Substitute Checks, including without limitation any
liability arising out of Fiserv's keying errors on reject items, (collectively,
"Substitute Check Claims"), and Client further agrees to defend, indemnify, and
hold Fiserv harmless from and against all liability, damage and loss arising out
of any Substitute Check Claims.
11. Holdover. Upon any termination or expiration of this Exhibit B, Item
Processing Services provided subsequent to the termination or expiration date
will be charged at then-current fees being charged to Client, plus a holdover
premium of 25%. In the event Client terminates this Exhibit B pursuant to
Section 11(e) of the Agreement, Client shall specify a final processing date. If
this date is changed at Client's request less than 90 days prior to the final
processing date, the holdover premium of 25% will be applied to the then-current
fees being charged to Client for Item Processing Services pursuant to this
Exhibit B, for all Item Processing Services provided after the
originally-schedule final processing date.
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit B to the
Agreement to be executed by their duly authorized representatives as of the date
indicated below.
For Client: For Fiserv:
Westsound Bank Fiserv Solutions, Inc.
By: /s/ Mark Freeman By: /s/ Jeff Thares
--------------------------------- ------------------------------------
Name: Mark Freeman Name: Jeff Thares
Title: EVP & CFO Title: President, Western Region IP
Operations
Date: *** Date: ***
WESTSOUND BANK 2 (FISERV LOGO)
EXHIBIT B-1
ITEM PROCESSING DESCRIPTION OF SERVICES
1. Proof: On each business day (excluding Saturdays, Sundays, and holidays),
Client will deliver to the Fiserv center(s) providing Item Processing
Services under this Exhibit (each, a "Fiserv Center"), checks and other
items deposited to accounts with Client. Client will provide extra
deliveries in support of proof operations for peak day processing. Peak day
processing is defined as any day when Client's volume is expected to exceed
the previous month's daily average volume by 20% (previous month's average
determined by dividing the total volume the number of business days in the
previous month.)
a. Client will contract with and pay for a courier, to pick up and
deliver all work between Client and Fiserv. Both parties will mutually
agree upon the times of pick-up and delivery. If Fiserv has not
received the items from Client locations by the agreed upon delivery
times, Fiserv may, in its sole discretion and without liability, delay
the processing of such items until the next business day. Fiserv will
contact Client's after-hours contact and apprise said contact of the
situation. Client agrees to provide an after-hours contact and update
that contact should there be any change in client personnel.
b. Client agrees to MICR encode documents to meet Fiserv requirements
(ABA and Account Numbers and Tran-codes)
c. Client is responsible for microfilming or imaging all items submitted
to Fiserv.
d. Client agrees that all transactional entries, involving tellers' cash
tickets, general ledger entries, or loan entries shall be in balance,
and that Fiserv may return to Client, unprocessed, any transactional
entries that are not in balance.
e. Client agrees to segregate all over-the-counter items into batches not
to exceed 3" in depth and to identify each such batch with an
appropriate batch header, which batch header shall meet written
requirements provided by Fiserv. Client further agrees to segregate
all items by type (i.e., single deposit items will be batched
separately from multiple deposit items), and to provide a total for
each single batch.
f. Client agrees to include a batch manifest for each bag of work
submitted to Fiserv.
g. From the items submitted to Fiserv, Fiserv shall retrieve such "on-us"
information as may be necessary for the proper accounting of the items
and shall transmit this information, through telephone lines or by
such other means as Fiserv may, from time to time, deem appropriate to
Client's data processor for data processing.
h. Client authorizes Fiserv to create ledger holdover entries, deposit
corrections, or such other entries to balance transactions, except for
those transactions outlined in subsection 1.d. above, as may be
necessary to the efficient processing of the items.
i. After Fiserv has completed the process of retrieving and transmitting
to Client's data processor the information necessary for data
processing, all over-the-counter items not drawn against Client shall
be forwarded for collection to such correspondent banks as Client may
designate from time to time in writing to Fiserv.
j. All items drawn against Client and those items internally generated
shall be returned to Client or held by Fiserv in accordance with
Client's written instructions.
2. Encoding: Fiserv will encode the dollar amount on all items needing
encoding and presented to Fiserv as part of the Proof function described
above. Fiserv may encode additional fields, such as account numbers,
deposit ticket totals, or other items as specified by Client. Any such
encoding will be according to terms agreed to by Fiserv. In no event will
Fiserv be liable for losses to Client due to encoding errors if Client has
not satisfied all of its obligations set forth in Section 1 above. Should
Fiserv's encoding services fail to meet the performance standard for proof
of deposit set forth in Exhibit B-3, and Client incurs a potential loss due
to an encoding error, Client shall use its best efforts to collect the
amount in question from its customer (including without limitation,
commencing legal action against the customer, obtaining a judgment, and
attempting collection efforts based on said judgment) prior to submitting a
claim for damages to Fiserv.
3. Exception Item Processing: Fiserv will either reject or pay items listed on
the appropriate report, in accordance with written instructions, by
Client's authorized officer or employee. The name of Client's officer or
employee giving such instruction shall be noted on the item or on such
other record as Fiserv may establish, together with the nature of the
instruction. If Client has not instructed Fiserv regarding the disposition
of any exception item drawn against Client by the agreed upon time each
day, then Fiserv shall return it through the presentment chain to the
depository bank or institution. Instructions to Fiserv on disposition of
items that are received after the agreed upon deadline or are changed can
result in a late charge. Should Fiserv's exception item processing fail to
meet the performance standard for exception item processing set forth in
Exhibit B-3, and Client incurs a potential loss due to an error, Client
shall use its best efforts to collect the amount in
WESTSOUND BANK 3 (FISERV LOGO)
question from its customer (including without limitation, commencing legal
action against the customer, obtaining a judgment, and attempting collection
efforts based on said judgment) prior to submitting a claim for damages to
Fiserv.
4. Statement Services: All checks, drafts, and other orders for the payment of
money drawn against accounts at Client that are to be stored by Fiserv,
will be retained by Fiserv until the end of each Client's checking account
cycle. The items will be sorted and filed or composed with the monthly
statement, and mailed to the depositor. Client agrees to have statements
printed according to predefined cycles and print classes. Statement
enclosure counts will be accurately and clearly reported in the top fold of
the statement. If required, Client agrees to expedite the return of any
paid exception items to Fiserv in order to facilitate timely statement
processing. Fiserv will apply proper postage, which will pre-paid monthly
(or as agreed upon by Client and Fiserv) on an estimated basis by Client.
Automated Statements must contain bar coding compatible to the equipment
being used. The bar coding must reflect the number of enclosures and page
identification. The enclosure count must accurately reflect the number of
expected items excluding stuffers. Bar coding must reflect if the statement
is a "Special Pull" or a "Hold" statement. The checks to be rendered must
have "stop document dividers" between accounts. Maximum number of items and
statement stuffers (as defined by Fiserv Center) must not be exceeded. The
envelopes must meet size criteria, defined by Fiserv and must be a "wet
seal" not "self seal". Truncated accounts must be separated from accounts
receiving checks.
5. Inclearings: Client authorizes Fiserv to receive its inclearing items daily
from the Federal Reserve Bank. Fiserv will balance the inclearing items to
their cash letters, capture the items on magnetic media or image scan and
transmit the account information to Client's data processor. Fiserv will
also pull out for further handling the appropriate items for exception
handling or scrutinizing, and deliver the items to bulk file storage or to
Client for further processing.
6. Courier Service: The parties hereto acknowledge that it will be necessary
to make arrangement for the transport of items, records, and other data
from Client to Fiserv and from the Federal Reserve or Correspondent bank to
Fiserv. After Fiserv has provided the Item Processing Services, selected
items, record, and data must be transported from Fiserv to Client and the
Federal Reserve. The parties further acknowledge that the cost of such
transportation shall be Clients's sole responsibility.
a. Client has the right to make provision for its own courier service to
provide the needed transportation as set forth in subsection 1.a.
above. Should Client not make provision for such courier service, or
should Client request that Fiserv make arrangements for such courier
service, then Fiserv, for Client benefit, shall make arrangements for
such a courier service. Client must notify Fiserv to provide such
courier service no less than 30 days prior to the date that Fiserv is
to begin providing Item Processing Services.
b. Client shall pay Fiserv for any and all charges, expenses, or costs
incurred by Fiserv in contracting for said courier service.
c. Client understands and agrees that Fiserv shall not have or assume any
liability or responsibility for such items, records, or data until
they reach Fiserv premises and that Fiserv shall have no further
responsibility or liability for them after they leave Fiserv premises.
d. The courier service shall at all times be deemed Client's independent
contractor, and shall not, at any time or under any circumstances, be
deemed Fiserv's agent or employee, regardless of whether said courier
service, at any pertinent time herein, is affiliated with or employed
by Fiserv.
e. Fiserv will monitor and track deliveries for Client. Should a delivery
be missing, Fiserv will notify Client through appropriate channels.
Should there be a dispute as to the proper delivery of any records,
Fiserv's records of delivery will be accepted as the undisputed record
of delivery.
7. Conversion Services: Fiserv will provide conversion services based on the
information provided by Client during the due diligence process. Following
Client's initial conversion to Item Processing Services, any additional
requests will be submitted to Fiserv at least 90 days prior to the required
implementation date. An estimate for the additional conversion services
will be provided. The implementation time for the conversion will be
delayed if Client requires more than 3 days to approve or decline the
conversion estimate. Client also acknowledges that Fiserv must approve any
changes to the MICR line and/or Account Number structure for Client prior
to proceeding with a conversion. Fiserv will make every reasonable attempt
to convert new MICR line and/or Account Number structures. Client agrees to
eliminate any non-standard MICR line and/or Account number structure as
identified during the due diligence process from its daily capture service
within 120 days after the initial conversion date. Client acknowledges that
Fiserv may elect to charge a fee such as the Special Statements Fee listed
in Exhibit B-2, for all non-standard items processed in the service. Client
acknowledges that Fiserv may not be able to achieve the stated performance
standards on accounts, transactions, or services involving non-standard
WESTSOUND BANK 4 (FISERV LOGO)
MICR lines and/or Account Number structures. In the event that the Account
Number appearing on the statement does not equal the Account Number on the
MICR line, Fiserv will not be responsible for any performance standards
relating to statement preparation and rendition.
Initial Client conversion is based on the IP Business Assumptions List
obtained during the due diligence process. This work includes an
inclearings, POD and bulk file sort pattern. In addition, it includes a
single extraction program to support the transmission of a daily
inclearings and POD file to a host site for processing. Sort specifications
will be developed in support of statement rendition services. Standard
reporting will be provided to Client to include a daily transaction report
sorted in transaction and account order, recaps of transmissions and cash
letters, and a daily cash report if required.
8. Research Services: Fiserv will provide research and photocopy services upon
request by Client or third party request through legal process such as
subpoena or search warrant. Client agrees to pay Fiserv for all such
research work, regardless of whether it is requested by Client or a third
party. Upon receipt of a request for subpoena work or other significant or
voluminous research work, Fiserv will attempt to provide Client with an
estimate of the time required and corresponding cost to complete the
request prior to commencing the research services. Client must have
selected an archival storage service with Fiserv in order to provide
Research Services.
9. Data Transmission: Client and Fiserv acknowledge and agree that if the
Client has contracted with a data processor other than Fiserv to provide
data processing services for client, Fiserv shall have no responsibility
for the timeliness or quality of the service provided by Client's data
processor. client's data processor shall deliver directly to Client all
reports generated from the data transmitted by Fiserv. If a data processor
other than Fiserv is used, then Fiserv shall have no responsibility for the
timeliness of such delivery or for the adequacy or accuracy of the reports
supplied by Client's data processor, except for errors caused by Fiserv
failure to transmit information.
10. Image Stream Archive Services: Fiserv will provide image item archiving
services to Client, as requested by Client Items may be maintained in a
migrated storage media technology. Services include:
a. Seven Year on-line storage of images.
b. Import and export of images through a Fiserv approved format.
c. Viewing access of images through an approved Fiserv Viewer and/or
approved API (Application Program Interface).
d. Creation of a disk containing retrievable images of processed items in
a format compatible with an approved Fiserv Viewer.
11. Fraud Guard Services:
a. Digital Signature Verification. All designated on-us items drawn
against accounts at Client, which are to be captured by Fiserv, will
be processed through the Digital Signature Verification Technology
("DSV") to provide Client with a scoring of the presented item
signature as compared to the reference signatures. It is Client's
responsibility to maintain correct reference signatures and account
rules on DSV. Client acknowledges that Fiserv only provides a scoring
service and does not accept any responsibility for forged or
counterfeit items improperly paid through Client's use of DSV. Client
is responsible for designating the items for return with the
appropriate return reason each business day by 2:00 p.m. local time.
b. Secure Seal Positive Pay. All designated DDA items drawn against
accounts at Client, which are to be captured by Fiserv will be
processed through the FraudGuard Positive Pay Plus and Secure Seal
Technology to provide Client with a scoring and matching of the
presented items as compared to the data that is decoded in the Secure
Seal. The comparison process and the identification of exceptions will
follow the account rules setup according to the Client's
specifications. It is the Client's responsibility to maintain
relationship with their customer to support the Secure Seal encoding,
account rules on the technology and check stock. Client acknowledges
that Fiserv only provides a scoring and matching service and does not
accept any responsibilities for forged, altered or counterfeit items
improperly paid by either Client or technology. Client is responsible
for designating the times for return with the appropriate return
reason each business day by 2:00 p.m. local time.
WESTSOUND BANK 5 (FISERV LOGO)
12. Image Stream Remote Capture Services:
a. Image Stream Branch Capture Services: Fiserv will provide remote
capture services to facilitate the capture of items from Client's
Image caputre platform. Client agrees to purchase and configure
equipment and software according to Fiserv's standards. Client is
responsible for providing telecom services that connect to the Fiserv
System as required by Fiserv. Client is also responsible for periodic
scanning of items throughout the day to insure time delivery of images
to Fiserv for subsequent processing. Fiserv will also proof and
balance any items/transactions captured through Fiserv's remote
caputre service. All items captured will be used the Fiserv to provide
image services to Client. Client is responsible for having adequate
equipment, telecom and plans to facilitate its contingency planning
requirement for this service. Client is also responsible to ensure
that items processed through the remote capture service meet the ANSI
X9.37 standards for image quality. Client may be required to
interrogate items for Fiserv to facilitate the processing of items for
balancing of transactions, or such times will be placed in suspense
for Client's investigation. Client's use of the Bank Office
Workstation Software and/or Teller Workstation Software listed on
Exhibit B-2 (collectively, "Branch Capture Software") is subject to
the additional terms and conditions set forth in Exhibit B-6.
b. Image Stream Merchant Capture Services: Client elects to use Fiserv's
Merchant Capture end-to-end solution ("Merchant Capture Solution").
Fiserv will provide a browser-based user interface and scanner
(pursuant to Exhibit L) to Client for use by Client's corporate
customer ("Customer"). This solution will be used by Customer to scan
checks to be deposited at the Client. At the point of scan Fiserv
agrees to perform an image quality assessment of the item. Items
falling the quality assessment will not be included in the electronic
deposit. A CAR/LAR read of the item will be performed at point of
scan. Images of the check items will be converted into IRDs and
processed with other POD work. Use of the Merchant Capture Solution is
subject to the following additional terms:
(i) Client shall ensure that Customer uses the Merchant Capture
Solution only for Customer's own internal business use in
accordance with the terms of this Agreement. Without limiting the
generality of the foregoing, Customer shall agree not to make the
Merchant Capture solution available or allow use of it in a
computer bureau service business, timesharing, or otherwise
disclose or allow use of the Merchant Capture Solution by or for
the benefit of any third party.
(ii) Customer's access to and use of the Merchant Capture Solution
shall be pursuant to a Customer agreement, sufficient to enable
Client to comply with its obligations herein. Upon Fiserv's
request, client shall provide Fiserv with a copy of each such
Customer agreement.
(iii) Fiserv shall have the right to each Customer's performance and
observance of the obligations and limitations set forth in the
agreements between client and Customers. Fiserv shall be a third
party beneficiary of each agreement between Client and Customers.
(iv) Client agrees that in its dealings with Customers, Client will
not make any representation or warranties in the name of Fiserv
concerning the Merchant Capture Solution.
c. Image Stream IRD Print Services: Client elects to use IRD Print
Services for the purpose of converting original checks to "Substitute
Checks" for deposit. This service consists of an image quality
assessment of the image file, routing of the Image file to the print
destination, printing of Substitute Checks including all consumables
such as toner and paper, and printing and verification of the detail
list(s) and cash letter. To achieve required integrated services, IRDs
may then be processed into the Client's POD Capture Services.
d. Maintenance Services: Maintenance Services for Branch Capture Software
and the Merchant Capture Solution (collectively, "Products") shall
consist of the services set forth in this paragraph. Fiserv shall
provide Client with upgrades and changes to the Products designed or
developed by Fiserv or its licensors and released generally to its
other customers that pay for such maintenance services. Fiserv
reserves the right to make changes in operating procedures, program
language, file structures, access techniques, general purpose
programs, data storage requirements, input and output formats, report
formats, types of hardware supported, throughput, and other related
programming and documentation improvements required to maintain the
currency of the Product. As part of these services, Fiserv will
provide Client the changes with written instructions concerning
implementation. It is understood and agreed that Fiserv's provision of
upgrades and changes under this paragraph does not include providing
new product to Client which may result from rewriting the Product.
Fiserv along shall determine whether work product related to the
Product constitutes new product as a result of a complete rewrite
(which is not provided to Client hereunder) or an improvement or
enhancement of the Product which is included as part of maintenance
services.
WESTSOUND BANK 6 (FISERV LOGO)
Exhibit B-2
ITEM PROCESSING SERVICES FEES
Fiserv will provide Client with the Item Processing Services for the fees and
prices set forth in this Exhibit B-2.
Fiserv Administrative Fee (excluding postage): *** as provided in Section 3(b)
of the Agreement.
Fee is "per item" or "each" unless otherwise indicated. Services marked with an
asterisk (*) are not available in all locations.
CAPTURE SERVICES Description FEE
---------------- ---------------------------------- ---------------
In-Clearing Image MICR capture and balancing with $***
Capture Image scan of Items. Reject
re-entry less than ***
POD Image Capture MICR Capture and balancing. Out $***
sorting of On-Us Items with Image
scan of items. Reject Re-Entry
less than *** includes One Cash
Letter per day.
Transit Only Image MICR capture and balancing. Image $***
Capture scan of Items. Reject Re-Entry
less than *** Includes One Cash
Letter per day.
Reject Re-Entry)*** Correcting of MICR data via $***
on-line terminals over***
Cash Letter Preparation Charge for preparing every $***
outgoing Cash Letter (over ***
day)
Daily Fed Notification Notification of Daily Cash Letter $***month
Deposited at the FRB.
PROOF ENCODING
*** window (minimum) MICR encoding of all items $***
received by Fiserv from Client.
Transactions are balanced. Windows
are based on first deadline -
(cash letter or transmission).
Return Services
Exception Item Pass Single pass of On-Us items for the $***
purpose of pulling items for
review/return to Client. Statement
Cycles are also pulled at this
time. (When the Client chooses
Return Items - IRD and is fully
truncated for statement services,
this service will be billed at the
unit fee for each item in the file
up to $210.00 per month to support
the handling of the image return
file.)
Returns Items-Qualified Automated pulling of return items $***
(EIP) with timely return decision
by Client. Fiserv strips or
inserts item into a document
carrier, encodes the special Fed
character, dollar amount and
Routing Number of Bank of first
deposit. Fiserv balances the
items, stamps the return reason,
prepares the Return Cash Letter
advice and delivers to the FRB.
Manual -same description as above
without automated Exception Item
Pull.
Return Items - IRD Automated processing of return $***
items as received in the EIP File
with timely return decision by
Client. Fiserv will prepare
"Substitute Checks" qualified for
return items to include the
special Fed character, dollar
amount and routing number of Bank
of First Deposit. Fiserv balances
the items, applies the return
reason, prepares the return cash
letter advice and delivers to the
FRB or correspondent for
collection.
Late Return Items Return item processing that ***
exceeds the normal 24-hour FRB
window for regular returns or is
past the established deadline for
the return decision. Late Returns
are subject to collection rules
and procedures.
Large Dollar Notification Client notifies Fiserv of the $***
large items to be returned. Fiserv
notifies the bank of first deposit
of the return. (Excluding the cost
of the return.)
RESEARCH/ADJUSTMENTS
Photocopy On request, Fiserv creates a copy $***
of an Item *** Expedited Photocopy
Request (Turn around less than
***)
Research/Subpoena Work Any Client-requested research $***
other than a Fiserv Center created
error, and/or research requested
by subpoena, search warrant, or
other legal request. Billed in 1/2
hour increments plus $***
Photocopy fee. Upon request, bid
provided. Client agrees to pay
Fiserv's then-current charges for
all subpoena requests, research,
and copying services provided by
Fiserv following termination or
expiration of this Exhibit B.
Fed or Correspondent $***
Adjustments-Research of outages.
(Plus Research Fee if over ***)
Deposit Corrections Corrections of Client $***
deposit/teller errors. Photocopy
charges are *** extra.
Original item Retrieval Upon Client request, Fiserv pulls $***
an original item for forwarding
via fax, mail or both to the
Client or FRB.
Statement Services End of Month (EOM) = last
processing day of month (with ***
day turnaround)
IMAGE
Image statement Non-End of Month Image statement $***
rendition/composition.
End of Month Image Statement $***
rendition/composition.
Statement Items Inserted Statement stuffers conforming to $***
standards are matched to
corresponding Statements and
prepared for mailing.
Scan Marketing Image Scanning of a promotional $***
marketing insert to be printed on
the Image Statements.
WESTSOUND BANK 7 (FISERV LOGO)
*** Conventional
Statement Rendering Non-End of Month Automated $*** acct
(machine) rendering of statement,
Statement format much adhere to
specification for automated
equipment as outlined in paragraph
4 of Exhibit B-1.*
End of Month Automated (machine $*** acct
rendering of statements. Statement
format must adhere to
specification for automated
equipment as outlined in paragraph
4 of Exhibit B-1.*
Non-End of Month manual rendering $*** acct
of statements.
End of Month manual rendering of $*** acct
statements.
Statement Items Inserted Checks posted to account are $***
matched to corresponding
Statements and prepared for
mailing. Statement stuffers
conforming to standards.
Fine Sorting Automated sorting of statement $***
enclosure items into account
number order. Or high speed
sorting of non check items into
account number order. (GL, Saving,
Loans, On-Us, and Daily Fine
Sort).
Truncated Non-Enclosure Non End of Month $***
Automated-Statements that do not
contain enclosure such as
Truncated, Saving, CD, Loan and
Analysis, Statement format must
adhere to specification for
automated equipment as outlined in
paragraph 4 of Exhibit B-1.*
End of Month Automated-Statements $***
that do not contain enclosure such
as Truncated, Saving, CD, Loan and
Analysis, Statement format must
adhere to specification for
automated equipment as outlined in
paragraph 4 of Exhibit B-1.*
Non-End of Month Manual-Statements $***
not containing enclosures such as
Truncated, Saving, CD, Loan and
Analysis.
End of Month Manual-Statements not $***
containing enclosures such as
Truncated, Saving, CD, Loan and
Analysis.
OTHER STATEMENT SERVICES
Custom Statement Services Creation of reformatted print file $***
upon receipt of an acceptable
statement file.*
Statement Print Printing charge for each side of $***
composed statement text and/or
images.*
Special and Hold All Statements that do not conform $***
Statements to general bulk file procedure -
daily, weekly, BI-weekly
cycles, conversion cycles,
one-time requests, differences in
enclosure counts.
Bulk File Storage Bulk filed items stored in Fiserv $***
facility pending statement
processing.
Item Destruction Truncated/Imaged Items stored in $***
Fiserv facility pending destruction
after 60 days.
Items housed in Fiserv facility $***Item/month
over the *** storage.
Inventory Management Inventory of Statement forms and $***Inventory
envelopes based on monthly usage
of forms and envelopes.
Special Services Non-conforming stuffers, selected Bid provied
field insert, promotional items,
and other mailing. Account number
reformat. Multiple R/T and Data
Entry.
IMAGE ARCHIVE / ON-LINE RETRIEVAL SERVICES
Seven Year Image Storage Storage of image for seven years $***
and Retrieval - First *** using the Fiserv migrated media
storage capability and the
retrieval of up to the first *** of
Tier 1 items based on items
captured for archive each month
during the first *** months of
storage.
Under 18 Months & over Over *** of monthly adjusted $***
*** (Tier 1) volume.
Over 18 months-7 Years Between *** months an *** of $***
(Tier 2) storage.
Seven Year Image Storage Each additional *** of image $***
and Retrieval Additional retrievals for Tier 1.
***
CLIENT WORKSTATION (CWS) IMAGE APPLICATIONS
CWS.NET Image Viewer Browser-based image viewer to
Browser-based retrieve from the Fiserv archive
application: via the internet. Viewer includes
access to Clients all-items index
maintained within the Fiserv
archive, a research tool, and
Day-2 access to image.
Single Logon ID -1 One logon $***month
Logon 6-Pack - 1 6-Pack allows for up to 6 Logon $***month
Assignments
Logon 6-Packs, 2-5 Discount applies to all 6-Packs $***/Month/Pack
used by Client
Logon 6-Packs, 6-10 Discount applies to all 6-Packs $***/Month/Pack
used by Client
Installation greater than Bid provided for large-scale Bid provided
60 Logos enterprise wide installations
CWS CD, and DVD. CD ROM Creation for Statements $***
plus postage/handling.
Scheduled Production of CD ROM $***
containing requested image a
self-contained viewer image plus
postage/handling.
DVD Creation for image plus $*** DVD + $***
postage/handling.*
WESTSOUND BANK 8 (FISERV LOGO)
***CWS Ad One-time special request CD ROM $*** minimum
Hoc CD ROM Request: containing requested images and a $*** plus
self-contained viewer. The Fiserv postage
Subpoena-Buster CD.
*** SERVICES
Same Day Settlement Fee assessed to accept Same Day $***
Settlement or Clearinghouse Cash
Letters on behalf of Client. This is
in addition to the per item fee
charged as a part of the inclearings.
Fax Requests Faxing as requested. $*** Item/side
Non-Cash Collection Fiserv forwarding of envelope via the ***
next scheduled courier delivery to
the FRB.
Transmission Transmitting of MICR data to a Client ***
application processor (non-Fiserv
host). Also for the receipt of
Exception Item Files/Statement
File/Print File.
Charge back Forwarding Fiserv forwarding of charge backs via $*** month
the next scheduled courier delivery
to Client or re-deposit to the Fed.
Deposit Bag/Envelope Receipt and manifesting of any direct $***
Handling deposit from Client's customer to
Fiserv Center or special handling.
$*** monthly minimum and $*** per
occurrence for cash handling fee.
Serial Sorting High-speed sorting of items into $***
check number order per Client
request.
Reject Repair Client required stripping and $***
requalification of items.
Image Item Export Creation of a multl-tif image file $***
for captured items that are made
available to Cleint via FTP server
for daily download to a Fiserv AP
application.
Creation of Multi-tif or other $***
approved format for capture items
that are made avaliable to Client via
FTP server for daily download to a
non-Fiserv AP application
Image Item Import Import of Images from a non-Fiserv $***
Image System to Fiserv's Archive
Services
Image Item Re-Scan Scanning of items for clients that do $***
not use other Item Processing
Services
IMAGE STREAM/REMOTE CAPTURE SERVICES
IMAGE STREAM/BRANCH CAPTURE SERVICES PROVIDED TO A FISERV CERTIFIED PLATFORM FOR
THE CAPTURE OF ITEMS ON THE FISERV IP NETWORK
Branch Capture Balancing of transactions done by $***
Balancing Fiserv
Branch Capture Item Item Image Field Entry for fields not $***
Image Field Entry captured by CAR/LAR and/or MICR
recognition
Branch Capture Hosting Centralized capture of images scanned $***
by the Client with CAR/LAR capability
deployed to support amount
recognition of qualified items.
Fiserv will provide application host
services, importing images for
archival services and provide Branch
Capture Call Center Support.
IMAGE STREAM/BRANCH CAPTURE SERVICES-SOFTWARE LICENSES
Back Office Software license to support the $***
Workstation Software operation of back office workstations Workstation
License with a certified scanner rated at ***
documents per minute.
Software license to support the $***
operation of back office workstations Workstation
with a certified scanner rated at ***
documents per minute.
Teller Workstation Software license to support the $***
Software License - operation of teller workstations with Workstation
first 50 copies* a certified scanner.
Teller Workstation Software license to support the $***
Software License - operation of teller workstations with Workstation
over 50 copies* a certified scanner.
IMAGE STREAM/MERCHANT CAPTURE SERVICES PROVIDED TO A FISERY CERTIFIED PLATFORM
FOR THE CAPTURE OF ITEMS ON THE FISERV IP NETWORK
Merchant Hosting Fiserv will host the merchant $***
Service application in a secure ASP service Workstation
utilizing a browser-deployed
application.
Merchant Item Capture This fee includes Image Quality $***
Assessment, movement of images
through the Fiserv Decision Gateway,
and X9.37 file management on behalf
of Client.
Corporate Client Optional - If Client elects for $*** per
Training Fiserv personnel to perform the Web - session
training of Client's corporate
customers.
IMAGE STREAM/MERCHANT CAPTURE SERVICES - SOFTWARE ACCESS
Merchant Capture - $*** million in assets $***
Client Enterprise
Browser-Based Software
Access
$*** million in assets $***
Over *** in assets $***
Merchant Software One time fee to acquire a workstation $*** Merchant
Access, including CAR license for a merchant. Workstation
/LAR Module
Merchant Capture - This fee is to customize the Merchant $***
Bank Branding Fee Capture system interface to include
Client's bank logo and branding
information. This fee applies each
time Client chooses to update the
branding of its Merchant Capture
System
WESTSOUND BANK 9 (FISERV LOGO)
IMAGE STREAM/REMOTE CAPTURE SERVICES - OTHER SERVICES
Scanners Scanners must be acquired through the Bid provided
Fiserv Purchase program to ensure
compllant equipment to the serivce,
Client and Fiserv will execute
Exhibit L for Client's purchase of
scanner(s).
Software Maintenance Monthly software maintenance fee *** of original
applicable to Branch Capture Software Software
(back office and teller) and Merchant License &
Capture Software Access. Access Fees
Remote Capture - IRD Fiserv will print Substitute Checks $***
Print in accordance with Check 21
requirements for all qualifying
transit items and will prepare the
items for cash letter presentment in
accordance with Client's
instructions. If this service is
covered by a comparable service from
the Fiserv Clearing Network Services,
this fee will not apply.
FRAUD GUARD SERVICES
Fraud Guard Decision Support Access: Monthly Access fee based on Client's asset
size. DSV & CSV or Secure Positive Pay, Monthly access charge for the viewing and
decision-making Digital Signature Verification Suspects or Secure Seal positive
pay exceptions through browser application. Unlimited users per month. May
require VPN Internet Connectivity
Decision Support *** million in assets $ *** month
Access. 1 Fraud Filter
*** million in assets $ *** month
*** million in assets $ *** month
*** in assets $ *** month
Over *** assets $ *** month
Monthly access charge for the viewing and decision-making Digital Signature
Verfication Suspects and Secure Seal positive pay exceptions through browser
application. Unlimited users per month.
Decision Support *** million in assets $ *** month
Access. 2 Fraud
Filters
*** million in assets $ *** month
*** million in assets $ *** month
*** in assets $ *** month
Over *** assets $ *** month
Client Internet Access Fee based on Client's compliance with $***
set up Fee Fiserv's VPN connectivity standards
(additional monthly fee of ***
allowing Client access to Fiserv's
Internet- Virtual Private Network,
if it is a new connection for Client).
*** GUARD SERVICES-DIGITAL SIGNATURE VERIFICATION (DSV) AND CHECK STOCK
VERIFICATION (CSV)
Digital Signature Compare signature of designated items $***
Verification to Client's reference signature
database
Check Stock Compare check stock of any DSV item $***
Verification to Client's reference check stock
database
FRAUD GUARD SERVICES-SECURE SEAL POSITIVE PAY
Conversion/ For new FraudGuard clients only. If $***
Implementation Client uses FraudGuard, no bank setup
is required.
Account Implementaion This fee is for every account that $***
Fee Client brings on to Secure Seal. This
includes template management, account
setup and testing. Client is
required to license Secure Seal Check
printing software from a certified
provider.
Account Maintenance Account Maintenance fee per account $***
per month. This fee allows Fiserv to
support the accounts that use Secure
Seal.
Digital Interrogation For every item that is digitally $***
interrogated. Decodes the Secure Seal
and compares it to the verification
points on the check.
CONVERSION/SPECIAL SERVICES
Processing Minimum Per Item Processing Services per Fiser $***month
Month Center. Pass-through and one-time
charges are excluded from minimum.
Training Bid provided.
Initial Conversions/ Service includes the installation of $***hour
Implementation Set Up an inclearing and POD sort pattern
Fee with file extractions to any AP
Service along with statement,
exception and image archival set up.
Bid provided for any additional
services requested. $*** minimum
per Fiserv Center.
Professional Services Upon Request, Fiserv will provide $***hour
and Changes to Service Client with an estimate of services
required. Professional Services and
related changes to service are
availabe for any services not
currently utilized by Client. Bid
provided unless the Set-up fee has
already been provided in this fee
schedule.
Internet Banking Installation and testing with Bid provided
Interface Set-up non-Fiserv Internet Service Provider
to establish interface to Client's
image database.
WESTSOUND BANK 10 (FISERV LOGO)
Internet Banking Monthly support of the Interface and $***
Interface data communications that enable a
non-Fiserv *** Service Provider to
access and retrive images from the
Fiserv National Image Archive on
behalf of the Client.
VPN Internet Client access to Fiserv's Internet - $***
Connectivity Virtual Private Network
*** Internet Fee based on Client's compliance with $***
Connectivity Set-up Fiserv's VPN connectivity standards.
*** Net Set-up Bid Provided.
WESTSOUND BANK 11 (FISERV LOGO)
EXHIBIT B-3
ITEM PROCESSING PERFORMANCE STANDARDS
PERFORMANCE PERFORMANCE
CRITERIA STANDARD MEASUREMENT MEASUREMENT CRITERIA
- ----------- ----------- ----------- --------------------
1). CLIENT PREPARATION AND PRESENTATION OF WORK TO FISERV.
Fiserv will notify Client of non-performance issues as required for the following:
A). Presentation Monthly Customer deposit is the first credit.
of Work
All credits come before debits
Bank Documents debits come before checks.
Items are encoded with route/transit number account
number and proper trancode.
If multiple amounts, correct amount is circled.
(Currency not to be included).
All work for proof and forward correspondence is in
clear plastic bag.
Clear plastic bag is in the Fiserv bag.
Other correspondence in the Fiserv bag.
Work should be free of all staples, tape, paper
clips, and all items should be facing the same
direction.
If Fiserv is not performing prime pass capture
services, items must be delivered with proper
endorsement.
Client's documents must meet industry standards
(ANSI X9) for MICR documents.
B). Categories Monthly Single items (one-on-ones) batched separately.
of Work
Multiple item transactions batched separately.
C). Batches and Monthly Bundles are limited *** ***, whichever limit is
Control Tickets reached first. Single item deposits have headers
preceding them and tape listings.
D). Delivery of Monthly All work should be delivered *** prior to outgoing
Work transit deadline, or Transmission deadline,
whichever is earliest.
Client will notify Fiserv of specific non-performance issues by submitting a service incident report in the form approved by Fiserv
with accompanying documentation to Fiserv Client Services for the following:
2). FISERV PROOF AND BALANCING OF WORK RECEIVED FROM CLIENT FOR PROCESSING.
Proof of *** % Percent of Proof Encoding Dollar encoding errors to meet service goals.
Deposit for Volume
dollar amount Corrections made with accepted medium.
encoding.
*** field Customer corrections are legible and complete.
*** SLA
will be Customer corrections have the correct reason listed.
mutually agreed
upon between All customer corrections are documented with
Client and accompanying copies as required.
Fiserv)
Items are endorsed with the proper bank stamp in
proper Regulation CC position.
Transaction corrections using G/L debits and credits
contain the correct information
Suspense documentation is legible and complete.
Items placed into holdovers by Fiserv will be
documented. Differences of under $10.00 will be
charged to a General Ledger account.
3). FISERV MODIFICATION OF MICR REJECTS.
Based on Client *** % Percent of Volume (Based on Modified MICR reject errors to meet service goals.
documents total rejects) Transaction corrections using G/L debits and credits
meeting contain the correct information.
industry
standards for Suspense documentation is legible and complete.
MICR documents
that do not Items placed into suspense by Fiserv will be
generate documented. Differences of under *** for inclearings
excessive will be charged to a General Ledger account.
relects beyond
*** of total
volume.
4). FISERV PREPARATION OF OUTGOING TRANSIT ITEMS.
Transit Cash Not to exceed one missed Record of Occurrence based on Cash Letters are sent out with correct total(s) and
Letter outgoing delivery deadline total number of cash letters complete bundle count(s).
Processing. per month per and point. sent each month.
Cash Letter differences are explained.
Cash Letters for proper bank and the correct
correspondent are used.
Low speed cash letters will be sent out within 24
hours of stated deadlines.
On-us items will not be sent out in transit cash
letters.
Late outgoing cash letters will be considered missed
only when Client has complied with the peak day
processing guidelines, as specified in paragraph 1
("Proof") of Exhibit B-1.
WESTSOUND BANK 12 (FISERV LOGO)
EXHIBIT 10.9
PERFORMANCE PERFORMANCE
CRITERIA STANDARD MEASUREMENT MEASUREMENT CRITERIA
- ----------- ----------- ----------- --------------------
5). FISERV CAPTURE AND TRANSMISSION OF WORK FROM PROOF DEPARTMENT.
Second Shift Transmission errors or Record of Occurrences. All transmissions are sent in the approved Fiserv
Transmissions. delays are not exceed *** format.
that are within Fiserv's
control. All transmissions are sent from Fiserv in such time
to insure that posting can be completed timely.
Transmission deadlines will not be earlier than
11:00 p.m. Mon. - Thurs. or 12:00 a.m. Friday, or as
mutually agreed upon between Fiserv and Client. Late
transmission deadlines will be considered missed
only when Client has complied with the peak day
processing guidelines as specified in paragraph 1
("Proof") of Exhibit B-1, or if transmission time
resulted in late availability for Client online
access.
6). CLIENT STATEMENT RESPONSIBILITIES
A). MCF/PCF Each cycle drop Client and/or Client's agent will transmit MCF/PCF
File Delivery files by 8:00 a.m. EST the morning after cycle drop
for any image statement cycles.
B). Delivery Of Each cycle drop
Work Client and/or Client's agent will deliver printed
statements, OTC items, and any paid exception items
to Fiserv Center.
Client to insure that enclosure count accurately
reflects total needed to render statements properly.
Zip codes and addresses will be removed from all
hold accounts.
Client will submit statement stuffers to center with
appropriate instructions noted on the stuffer
instruction form. Stuffers must arrive a minimum of
*** business days prior to cycle drop, to insure
proper handling.
7). FISERV STATEMENT PREPARATION RESPONSIBILITIES
Statement *** Quality Service Goal *** Percent of Total Statements End of the month statements are postmarked no later
statements) Rendered than the *** business day.
Timeliness Service Goal: *** Non-end of the month statements are postmarked no
statements) later than the *** business day.
Special account statements are postmarked out no
later than the *** business day.
Exception statements will be mailed out within two
additional business days.
Truncated Statements Non-EOM will be postmarked no
later than the *** business day.
Truncated Statements EOM will be postmarked no later
than the *** business day
There will be only one statement per envelope.
The correct customer's checks will accompany the
statement.
Hold statements that are properly labeled will be
sent to Client for handling.
The correct number of statement pages are in the
envelope. The correct statement stuffer(s) will be
included in the statement. (No more than ***)
Notice of missing item(s) will be included in the
statement in the statement is missing *** fewer
enclosures.
Fiserv will monitor and report delays for receipt of
statement print to Client within *** hours of the
expected time of receipt.
Correct envelopes will be used for Client.
All envelopes will be sealed prior to leaving Fiserv
Center.
All timeframes related to the rendering process
start based on the time received of all items noted
in the Client Statement Responsibilities section.
8). FISERV IMAGE STREAM RETRIEVAL AND ARCHIVE
Image Services *** uptime with the Based on the total minutes Fiserv will provide Client with remote research
exception of scheduled down/the total minutes availability or exception item decision support via
maintenance periods available in a week (7x24) their workstation from 12:01 AM Eastern Time to
less scheduled maintenance 12:00 AM Eastern Time Monday through Saturday,
periods excluding holidays. On Sunday and holidays from
12:01 AM Eastern Time to 4:00 PM Eastern Time.
Monitored by Fiserv and
published results monthly. Archive service response times for single item
requests are:
*** day to *** average response time is 4 seconds
from receipt of the request by the Archive.
*** next day.
Image Ingestion [***] Number of missing items vs. Images of all captured items will be exported and
into Archive total items exported reside on Fiserv's national archive.
WESTSOUND BANK 13 (FISERV LOGO)
PERFORMANCE
CRITERIA PERFORMANCE STANDARD MEASUREMENT MEASUREMENT CRITERIA
- ----------- -------------------- ----------- --------------------
9). FISERV PROCESSING OF EXCEPTION ITEMS (OUTGOING RETURN ITEMS) WHEN CLIENT HAS SUBMITTED FINAL RETURN DECISIONS BY 12:30 P.M.
Qualified *** Return items) Percent of Total Qualified The correct items will be returned.
Returned Items Return Items
All returned Items are identified with the correct
return reason.
The items Client wants returned are returned on the
day they are listed as exceptions.
The return cash letter balances to the daily return
total.
G/L entries made for all check reversals.
Rejected debit totals balance.
Large items notified through EARNS, or direct call
method.
Items are returned within specified Regulation CC.
time requirements.
Items are presented using correct account number and
trancode.
10). FISERV RESEARCH OF ITEMS, PHOTOCOPY PRODUCTION
Research *** Percent of Total Research The turn-around time for a research request will be
Request and Photocopies *** business days from the time of receipt (unless
Serviced Fiserv otherwise notifies Client, as in the case of
subpoena research or other significant or voluminous
research requests). For subpoena research or other
significant or voluminous research requests. Fiserv
will provide a completion commitment estimate to
Client within *** of receipt commercially reasonable
efforts will be made to produce quality photocopies,
Trace reports will be delivered to Client within ***
business days.
11). CD/DVD PRODUCTION AND DELIVERY
Image CD's Weekly and daily CD's will be dispatched next
business day. End of month CD's will be dispatched
within *** business days. All CD's will be property
labeled.
12). FISERV QUALIFICATION OF RETURN ITEMS
Qualification *** Percent of Total Return Items Property encode the return within Bank of First
of Outgoing Qualified Deposit routing number.
Return Items
Note: If Bank of First Deposit is not legible,
Fiserv will return item raw Property Encode the
return with a *** position *** of the MICR line
based on the type of return service selected.
13). FISERV OPERATION OF DIGITAL SIGNATURE VERIFICATION SERVICES
*** Scoring of Delays in with having the Number of delays per month All property designated DDA items will be scored
items *** items scored 8:30 a.m. against references signatures in the signature
Clients ***. local time will not exceed database and account rules; global and account
one per month that are specified.
within Fiserv's control.
All items to be returned are communicated to Fiserv
through existing or agreed upon procedures.
All scored items will be made available to the
Client daily for review by 8:30 a.m. local time.
Client will complete the selection of return items
daily by 2:00 p.m. local time. Client will
coordinate only one return decision when the item
has multiple exception types.
14). FISERV'S OPERATION OF SECURE SEAL POSITIVE PAY SERVICES
Secure Seal Delays in with having the Number of delays per month All property designated DDA items with designated
performing items interrogated and verification fields will be scored against the data
matching matched by 8:30 a.m. local decoded in the Secure Seal and the account rules;
process of time will not exceed one global and account specified.
Secure Seal per month that are within
data and Fiserv's control All items to be returne are communicated to Fiserv
verification through existing or agreed upon procedures
fields
according to All Scored items will be made available to the
the Clients Client daily for review by 8:30 a.m. local time.
criteria
Client will complete the selection of return items
daily by 2:00 p.m. local tune. Client will
coordinate only one return decision when the item
has multiple exception types.
15). CLIENT'S MERCHANT CAPTURE OF ITEMS
Fiserv will notify Client of non-performance issues as required for the following:
Capture of Monthly
Items
The images shall be carefully and accurately scanned
to meet the criteria of Fiserv's Image Quality
Assessment (IQA) tests.
Client (or Client's agent) will be available to
rescan or otherwise present original checks for
those items that fall the Fiserv IQA tests.
Client (or Client's agent) will retain original
items for a sufficient period of time in order to
satisfy Check 21 related inquiries and to meet its
indemnity obligations with respect to Check 21 and
Reg CC.
The Merchant capture process shall be completed by
Client's agent 4 hours or more prior to the
distribution deadline.
WESTSOUND BANK 14 (FISERV LOGO)
Client will notify Fiserv of specific non-performance issues by submitting a service incident report in the form approved by Fiserv
with accompanying documentation to Client Services for the following:
16). IMAGE STREAM MERCHANT CAPTURE SYSTEM AVAILABILITY
Merchant *** time with the exception Based on the total minutes Fiserv will provide Client with a system available
Capture Server of scheduled maintenance down/the total minutes for access by the merchant and Client in delivery of
Uptime periods available in a week (7x24) merchant services. The system will be available to
less scheduled maintenance capture deposits, view work in process and view
periods history.
Monitored by Fiserv and
published results monthly.
17). IMAGE STREAM SUBSTITUTE CHECK PRINTING
Quality of *** items printed Number of Improperly printed Fiserv will print and compose Substitute
Check/Deposit items Checks/Deposit for qualifying items, which were
Printing processed through Fiserv's ImageStream Merchant
Capture System for subsequent capture into the
Client's POD Image Capture Services. A "Services
Failure" is defined as an error that has been caused
by print quality, which caused an expedited recredit
claim to occur from the receiving bank due to the
quality of the printed item.
WESTSOUND BANK 15 (FISERV LOGO)
EXHIBIT B-4
DESIGNATION OF PAYMENT
FOR ITEM PROCESSING SERVICES
Client shall pay for monthly item processing services by ACH transaction, as per
Agreement sub-paragraph 3(e).
Complete the Authorization Agreement below for ACH Debit.
AUTHORIZATION AGREEMENT FOR AUTOMATIC PAYMENTS
FOR ITEM PROCESSING SERVICES
Fiserv is hereby authorized to initiate debit entries on Client's account at the
depository institution indicated below, hereinafter called DEPOSITORY, for
payment of item processing services. (All Information must be provided)
DEPOSITORY NAME ________________________________________________________________
CITY ________________________________ STATE __________________ ZIP _____________
TRANSIT/ABA NO. _______________________ MASTER ACCOUNT NO. _____________________
ACCOUNT NAME ___________________________________________________________________
This authority is to remain in effect until Fiserv and DEPOSITORY have received
written notification from Client of termination in such time to afford Fiserv
and DEPOSITORY a reasonable opportunity to act on it. Client agrees to direct
such notification to the Corporate Finance and Accounting Department of Fiserv
at: 2 TOWNSITE PLAZA, TOPEKA, KANSAS 66603. Client has the right to stop payment
of a debit by notifying DEPOSITORY in time to allow DEPOSITORY a reasonable
opportunity to act prior to charging the account listed above.
CLIENT NAME: ___________________________________________________________________
ADDRESS: _______________________________________________________________________
CITY ___________________________________ STATE _________________ ZIP ___________
AUTHORIZED SIGNATURE ___________________________________________________________
(Signature must be identical to that now on file with DEPOSITORY.)
TITLE __________________________________________________________________________
DATE ________________________________
WESTSOUND BANK 16 (FISERV LOGO)
EXHIBIT B-5
ADDITIONAL ITEM PROCESSING SERVICES, FEES AND PERFORMANCE STANDARDS
COMMERCIAL DEPOSIT PROCESSING AND CASH VAULT SERVICES:
A. Description of Commercial Deposit Processing and Cash Vault Services:
Fiserv will provide Client with access to Cash Vault Services for the
purpose of receiving commerical deposits and servicing of brach/ATM cash at
the designated Cash Vault for same day processing of deposits with check
and cash upon timely delivery of the deposit. Client will be responsible
for the courier cost for delivery of the deposit and will pay a prorated
share of courier expenses from the vault to the nearest Fiserv Center for
Client to process the deposit. Cash Vault Services may be subcontracted
through a designated Fiserv Alliance partner.
B. Commercial Deposit Processing and Cash Vault Services Fees:
COMMERCIAL DEPOSIT
PROCESSING DESCRIPTION FEE
- ---------------------- ------------------------------------- ---------------
Deposit Processing Preparation Of Deposit items per $***/deposit
deposit plus currency or coin
processing fees.
Deposit Adjustments Out of balance currency or coin $***/adjustment
deposits requiring an adjustment
ticket
Currency in Deposits Preparation of Deposited Coin and $*** $*** of currency received
Currency
Coin Processing- Sorting and/or counting mixed coin $***/bag
Unwrapped
Coin Processing- Receipt of standard FRB bag of coin $***/bag
Unwrapped / Single unwrapped for processing by weight.
Denomination
Coin Processing - Breaking of Wrapped Coin (single or $***/bag
Wrapped mixed denomination) for counting and
sorting.
Return of Validated Validation and return of duplicate $***/deposit slip
Deposit Slip deposit slip via armored courier to
bank branch plus postage and handling
if mailed to customer.
Scanning of Deposit Scanning of all deposit items prior $***/Item
items to release to Fiserv, using Fiserv
provided scanning equipment
COMMERCIAL CHANGE
ORDERS
Change Orders Processing request for change orders $***/order
either electronically or by automated $*** ordered or fraction thereof
phone request.
Coin Wrapping Fee Wrapping fee for any coin shipped to $***/wrap
Client.
BANK BRANCH & ATM
PROCESSING
Currency Received from Excess currency shipped from bank $***/shipment
bank Branch branch to Loomis cash vault. Must be
full strap by denomination and will
be strap verified only.
Currency prepared for Preparation of currency shipped to $***/shipment
shipment To bank bank branch. Must be in full straps
branch by denomination.
ATM currency shipment Preparation of currency to be shipped $***/shipment
to bank ATM. Must be ordered in full
straps by denomination
Return ATM currency Residual ATM currency being returned $***/shipment
to Loomis cash vault. To be fine
counted
Branch coin services Same rates as
commercial
(above)
FEDERAL RESERVE BANK
PROCESSING
Currency received from Currency received from Fed for bank $***/shipment
Fed and to be placed in bank inventory at
Loomis. Strap verified only.
Currency prepared Preparation of excess currency held $***/shipment
for shipment to Fed. for bank at Loomis cash vault to be
shipped to fed.
SPECIAL HANDLING
Monthly Account Change assessed per bank and per $*** month/vault
Maintenance vault location for currency and coin
inventoried by Loomis.
(Fee may be waived if total monthly
billing for the account exceeds ***
Set Up of Electronic Set up of CTR Reports or ACH file Bid Provided
files Transfers
Daily Cash File Daily transmission of files as Bid Provided
Transmissions required
WESTSOUND BANK 17 (FISERV LOGO)
C. Commercial Deposit Processing and Cash Vault Services Performance Standards:
Performance Standards: Client preparation and presentation of work for Cash
Vault
Deliveries to Vault must be provided by a certified armored
carrier by agreed upon deadline
Deposit must be contained in a secured (Properly sealed), single
use, lamper-evident, opaque, plastic numbered bag (Bar Coded
Serial Numbers are preferred)
The deposit bag must be clearly labeled, Identifying the Client's
customer name, the deposit preparation date, the reported Deposit
Amount and "(Bank Name) @ LF&C CMS" as the delivery location.
The deposit must be organized as follows: First, the Client's
customer deposit slip followed by checks, Travelers Checks
and then currency all secured with a rubber band.
Currency, Coin and Checks totals must be listed separately on the
deposit slip also showing a deposit total.
Client requesting the return of a validated deposit slip must
include a Duplicated Deposit (NCR/Carbon Copy) slip in each
deposit.
Currency in Deposit must be:
Organized by denomination
Strapped by denomination in straps not to exceed 100 notes
Must not contain rubber bands, paperclips, staples or
bindings other than currency straps. One large rubber band
can be placed around all currency.
All currency must then be secured together with a rubber
band
Presentation Coin Contained in the deposit:
and Delivery
of Work Must be loose or rolled in standard coin roll amounts
Must not be bent, drilled or otherwise mutilated
Large Coin Deposits in amounts of more than $*** must be in
a separate, approved coin bag.
Large Coin Deposits must list the number and value of bags
by denomination and must have the total reported amount of
the deposit listed in the appropriate space of the deposit
slip.
Bags of coin must not weigh more than 50 lbs.
Denominated Bags of coin must not contain more than:
$50.00 in Pennies
$200.00 in Nickels
$1000.00 in Dimes
$1000.00 in Quarters
$1000.00 in Halves
$2000.00 in Dollars
All bags of coin must be labeled with the following information
Name of the customer making the deposit
Denomination of coins in the bag
Reported Value of the bag
"Bag 1 of" type numbering i.e., 1 of 3, 2 of 3, etc.
FISERV CASH VAULT DEPOSIT PROCESSING
Fiserv Preparation of *** Percent of Fiserv will prepare necessary G/L entries to
General Ledger Entries Volume settle Client cash inventories
for Cash Inventory
Fiserv will ship cash inventories at agreed
upon release amounts to FRB as required
Cash-in Tickets are properly prepared and
replace any cash received in deposit(s)
Cash Orders placed by Client's customer will
be prepared and released for shipment timely
Deposit(s) delivered prior to established
deadline will be processed for same day
deposit.
Fiserv will transmit a CTR (Large Currency
Reposts) electronically to Client as required.
Fiserv will scan any deposits upon receipt to
Vault as required for proof of delivery/ prior
to shipment to the Fiserv Center.
WESTSOUND BANK 18 (FISERV LOGO)
MAGESTREAM eSTATEMENTS:
A. Description of Imagestream eStatements: Fiserv item Processing will receive
a statement file on behalf of Client, generated from Client's account
processing system. Fiserv item Processing will use this statement file to
create a set of eStatements for Client's end customers. These eStatements
will be delivered to the end customer via access to a secure Internet site.
The end customers will be notifed that eStatements are available via an
email containing a link to the secure site. Client is responsible for
enrolling the end customers for eStatements via the CWS administrative
tool.
B. Fiserv e-Sign Act Responsibilities: Within *** hours of the time when an
account is successfully enrolled, Fiserv will send an email to the email
address that was entered for that account. The email will include a
hyperlink to the Enrollment Confirmation website that Fiserv maintains for
Client.
1. After the customer clicks the link in the email and reaches the
welcome page of the Enrollment Confirmation site, the customer
enters his or her User ID and Password and submits the data in
order to login.
2. Fiserv will validate the customer's User ID and Password against
the enrollment data contained in Fiserv's eStatement Database,
and Fiserv's Enrollment Confirmation website will present to the
customer Client's eStatement disclosure statement.
3. After the customer checks a box to indicate acceptance of the
disclosure and clicks a button to submit the information,
Fiserv's Enrollment Confirmation website will present a screen
containing a button to open a PDF document that will display a
randomly generated confirmation code number.
4. After the customer opens the PDF document, enters the displayed
confirmation code in another field on the screen, and submits the
data, Fiserv will validate the number submitted against the
number that was presented in the PDF.
5. The Fiserv Enrollment Confirmation website will present the
customer with a screen confirming that the process in complete.
6. If and only if the Enrollment Confirmation process outlined above
is successfully completed. Fiserv will change the status of the
customer's account in the eStatement Enrollment Database so that
the customer will begin to receive eStatements.
C. ImageStream eStatement Fees:
ESTATEMENT SERVICES Web-Hosting and Maintenance. Monthly $*** Month
fee for Web-Hosting and Maintenance.
Fee for each statement side ingested Minimum
for eStatement delivery $*** month
eStatement Development Development and Setup Fee. This one $***
& Programming Fees time implementation Fee includes the
setup of one statement type and the
website development.
Development and Setup Bid provided
of Additional
Statement Types
D. ImageStream eStatement Performance Standards:
PERFORMANCE
PERFORMANCE CRITERIA STANDARD MEASUREMENT MEASUREMENT CRITERIA
- ---------------------- ----------- ----------- -------------------------------------
FISERV ESTATEMENT PREPARATION RESPONSIBILITIES
Client Each cycle Client and/or Client's agent will
Responsibilities drop transmit the required statement files
Statement File by 8:00 a.m. EST the morning after
Delivery the cycle drop.
Client will maintain the account
level enrollment for each eStatement
customer.
Client will determine and communicate
to Fiserv the number of days, after
which an eStatement must be printed
and mailed if an account holder does
not retrieve their eStatement.
Fiserv Quality Percent of eStatements are available no later
Responsibilities Service Total than the *** business day
eStatement Preparation Goal: *** Statements
and Delivery statements Emailed Exception statements will be made
available within two additional
Timeliness business days.
Service
Goal: *** The correct statement will be made
statements) available to Client's customer.
The correct number of statement pages
will be displayed.
All timeframes related to the
rendering process start based upon
the time of receipt of all items
noted in the Client Statement
Responsibilities section.
WESTSOUND BANK 19 (FISERV LOGO)
EXHIBIT B-6
BRANCH CAPTURE SOFTWARE ADDITIONAL TERMS & CONDITIONS
1. Fiserv grants Client a non-exclusive, nontransferable license to use the
Branch Capture Software solely to process Client's items that are to be
sent to Fiserv for processing. This license expressly excludes any right to
use in a service bureau or timesharing environment.
2. Client shall not copy, disassemble, decompile, or otherwise reverse
engineer the Branch Capture Software.
3. Branch Capture Software and any operations manuals, instructions, and other
documents or written materials provided to Client as Instruction in the use
of the Branch Capture Software (the "Documentation") are acknowledged by
Client to be and contain Fiserv's and its licensors proprietary information
and trade secrets. Title and all ownership rights to the Branch Capture
Software, the Documentation, and any modifications thereto remain with
Fiserv. Branch Capture Software and Documentation constitute Fiserv's
Confidential Information. Client shall retain or affix such evidences of
ownership and proprietary notices as Fiserv may request.
4. Fiserv shall be entitled at all reasonable times and without prior notice
to Client to audit Client's compliance with the limitations set forth
herein in any manner which does not unreasonably disrupt Client's business
operations, including but not limited to, onsite or remote access audits.
5. Client rights under this license may not be assigned, licensed,
sublicensed, pledged, or otherwise transferred voluntarily, by operation of
law or otherwise, without Fiserv's prior written consent, and any such
prohibited assignment shall be null and void.
6. Client acknowledges and agrees that it is exclusively responsible for the
operation, supervision, management and control of the Branch Capture
Software, including, but not limited to, providing adequate training for
its personnel, instituting appropriate security procedures, and
implementing reasonable procedures to examine and verify all output before
use. Fiserv shall have no responsibility or liability for Client's
selection or use of the Branch Capture Software or any associated
equipment.
7. In order to maintain the continuing integrity and proper operation of the
Branch Capture Software, Client agrees to implement, in the manner
instructed by Fiserv, each error correction and each enhancement and
improvement provided to Client by Fiserv. Client's failure to do so shall
relieve Fiserv of any responsibility or liability whatsoever for any
failure or malfunction of the software as modified by a subsequent
correction or improvement, but in no such event shall Client be relieved of
the responsibility for payment of fees and charges otherwise properly
invoiced during the term hereof, if requested by Fiserv, Client agrees to
provide written documentation and details to Fiserv to substantiate
problems and to assist Fiserv in the identification and detection of
problems, errors and malfunctions; and Client agrees that Fiserv shall have
no obligation or liability for said problems until it has received such
documentation and details from Client.
8. Client agrees to notify Fiserv immediately of the unauthorized possession
or use of the Branch Capture Software or Documentation by any person or
organization not authorized to have such possession or use. Client will
thereafter fully cooperate with Fiserv in the protection and redress of
Fiserv's proprietary rights.
9. If Client attempts to use, copy, license, sublicense, sell or otherwise
convey or to disclose the Branch Capture Software or Documentation, in any
manner contrary to the terms of this Agreement or in derogation of Fiserv's
proprietary rights, Fiserv shall have, in addition to any other remedies
available to it, the right to injunctive relief enjoining such actions,
Client hereby acknowledging that other remedies are inadequate.
WESTSOUND BANK 20 (FISERV LOGO)
10. The Branch Capture Software licensed hereunder may include software
developed and owned by third party licensors. Fiserv's sole warranty with
respect to such third party software is that Fiserv possesses the legal
right and authority to re-license such third party software to Client.
Specific warranties regarding performance of such third party software
shall be limited to the warranties, if any, provided by such third party
licensors. In exchange for Client's agreement not to assert any claim for
breach of such third party licensor's warranties against Fiserv, Fiserv
hereby assigns to Client such right, if any, as Fiserv may possess to
assert a claim for breach of warranty against the third party licensor.
11. The termination or expiration of the Agreement, Exhibit B or of the Image
Stream Branch Capture Services set forth in Exhibit B, shall automatically,
and without further action by Fiserv, terminate and extinguish the license,
and all rights in and to the Branch Capture Software shall automatically
revert irrevocably to Fiserv. Upon such termination, Client shall
immediately cease use of the Branch Capture Software and Documentation and
return all copies to Fiserv.
WESTSOUND BANK 21 (FISERV LOGO)
EXHIBIT C
EFT SERVICES
Fiserv Solutions, Inc., a Wisconsin corporation ("Fiserv") and WESTSOUND BANK
("Client") are executing this Exhibit C with the intention that it shall form
part of the Agreement between Fiserv and Client dated *** as amended through the
date hereof (collectively, the "Agreement").
Client agrees with Fiserv as follows:
1. Services. Fiserv will provide Client the EFT Services (the "EFT
Services") specified in Exhibit C-1 hereto.
2. Network Support Services. Fiserv will provide Network Support
Services (monitoring, service, and maintenance for equipment) in accordance with
instructions supplied by the Client. If any or all of the communication network
should fail, Fiserv or its designated agents will locate the problem and correct
any malfunction not associated with equipment or circuits provided by common
carriers. If the problem is located in the equipment or circuits of the common
carriers, Fiserv will contact the common carriers and request that the problem
be corrected. Maintenance fees incurred by Fiserv for repairs caused by faulty
electrical power, inadequate physical facilities, physical abuse, or other
Client-supplied or controlled factors will be reimbursed by Client.
3. Fees. Client shall pay Fiserv the fees and other charges for the
Account Processing Services specified in Exhibit C-2. The fees listed in Exhibit
C-2 are valid for the account processing services Client contracts for as of the
date of the Agreement. If Client seeks additional services from Fiserv during
the term of the Agreement, Fiserv's fees therefor will be quoted to Client upon
request. Fiserv agrees to give at least 30 days notice to Client of any changes
in the rules and procedures established for processing, unless such changes are
caused by changes made by the Federal Reserve System or otherwise beyond the
control of Fiserv, not permitting Fiserv to give such advance notice. Fiserv
reserves the right to make such changes to the Exhibits without notice as may be
necessary to cover any increases in Federal Reserve System costs and charges or
in other costs and charges beyond Fiserv's control, including changes required
by applicable law or regulatory activity. The fees listed in Exhibit C-2 may be
changed annually effective each January 1 beginning in the year 2007 upon 30
days notice to Client. Each change shall be limited to the change in the U.S.
Department of Labor, Consumer Price Index for All Urban Households - Pacific
Northwest, published by the United States Department of Labor, Bureau of Labor
Statistics ("CPI") for the 12-month period preceding each January 1 not to
exceed 3% unless the CPI exceeds 6%. Any percent or fraction thereof above 6%
will be added to the 3%. Fiserv will deliver to Client the notification of the
fee change Notwithstanding the foregoing limitations, Fiserv EFT shall have the
right to bill the Client the full amount of any increases in third-party
telecommunications costs, Network pass-through fees or other out-of-pocket
expenses incurred on behalf of Client as of the same effective date such
increases are billed to Fiserv EFT.
4. 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 Client's Accounts, Fiserv shall, at its own expense, promptly
recompute accounts affected by discrepancies solely caused by Fiserv computer or
software systems or provide for another mutually agreeable resolution. Fiserv
will use its commercially reasonable efforts to correct errors attributable to
Client or other third party services of Client.
5. Reports. Fiserv will provide output reports to Client for daily,
weekly, monthly, and annual transactions.
6. Backup Records. Fiserv currently retains historical files at a
location separate from the data center sufficient to recreate files for the most
recent week and month-end. A daily transaction log of all Client transactions
for the most recent ten business days will also be maintained at this location.
7. Hours of Operation. The EFT Services will be available for use by
Client during standard Fiserv business hours, excluding company holidays, as
specified in Exhibit C-3 hereto.
8. Performance Standards. The EFT Services shall be performed in
accordance with the standards specified in Exhibit C-4 hereto.
9. Software Modifications (a) Custom Programming. Fiserv will develop
a preliminary estimate of the anticipated man hours and costs plus or minus
fifty (50) percent associated with the Implementation of said change. This
estimate will be returned to Client within four weeks. Written acceptance by
Client to proceed with the project will be required prior to beginning the final
specifications. Fiserv will assign a projected completion date to the project,
provided no additional changes or modifications to the original specifications
occur once the project is in development.
(b) Regulatory Software Changes. Software changes required by
government bodies will be quoted in accordance with subsection (a) above and
such costs will be distributed to all clients on an equitable basis.
(c) Major Software Enhancements. All major software enhancements will
be subject to additional charges for processing and development in accordance
with Exhibit C-1 hereto. Fiserv is under no obligation to upgrade its software
during the term of this Agreement.
10. Hardware. (a) Client will obtain written approval from Fiserv
prior to connecting any equipment to the data communication equipment provided
by Fiserv. Equipment, if any connected to the Fiserv System must be configured
in a manner acceptable to Fiserv. Client agrees to pay Fiserv for the testing
and acceptance of such equipment by Fiserv at its then current rates.
(b) Client shall at all reasonable times permit the authorized
personnel of Fiserv and the equipment manufacturers to have access to any Fiserv
owned or leased equipment provided under this Agreement, and shall permit
removal of such equipment upon termination of this Agreement.
11. Protection of Data. Fiserv has developed an operations backup
center for which Client has agreed to pay the charges indicated in Exhibit C-2.
Fiserv tests the procedure periodically to ensure compliance. Copies of
transactions files are maintained by Fiserv off premises in secured vaults.
12. Regulatory Compliance. (a) Client is solely responsible for
ascertaining that its use of EFT Services complies with all applicable state and
federal statutory and regulatory requirements. Fiserv agrees, however, to
monitor such applicable requirements, and to make changes in the EFT Services as
Fiserv believes is necessary to bring the EFT Services into compliance.
(b) Upon the written request of Client or a governmental regulatory
authority, Fiserv shall make output available to such regulatory authority for
purposes of audits and supervisory examinations of Client. The Client shall pay
Fiserv its then current rate for any time devoted to such examination, audit,
consulting, or other similar related effort.
(c) On an annual basis, Fiserv shall engage a qualified, independent
auditing firm to review and evaluate its internal control environment, in
accordance with relevant AICPA audit standards (a "SAS-70 Type II* Audit). Upon
completion of the engagement, a copy of the service auditor's report shall be
made available to Client at Fiserv's then current rate.
13. On-Line Security. Fiserv will provide access to the Client, after
the execution of appropriate "on-line" security measures, to allow the Client to
perform Cardholder maintenance on Client's data files in the Fiserv system.
14. Network Agreement. Fiserv provides access to electronic fund
transfer networks for the purpose of participating in the exchange of
transactions on an inter-network basis. Client may participate in such networks
subject to the following terms and conditions:
(a) Client will enter into an agreement with each such network in
which Client elects to participate, and will operate within and abide by the
operating rules established by each such network, and pay any associated fees
imposed by each such network; and
(b) The clearing of transactions and reconciliation of payments will
be in accordance with settlement procedures established between Fiserv and each
such network.
15. Exclusivity. Client agrees that Fiserv shall be the exclusive
provider of electronic transaction services (i.e. ATM driving, ATM Cards, VISA
Check or MasterCard debit cards) that are the subject of this Exhibit. During
the term of this Agreement, Client agrees not to enter into any agreement with
any other entity to provide EFT Services (or similar services) provided
hereunder without the prior written consent of Fiserv.
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit C to
the Agreement to be executed by their duly authorized representative as of the
date indicated below.
FOR CLIENT: FOR FISERV:
WESTSOUND BANK FISERV SOLUTIONS, INC.
DBA FISERV EFT
By: /s/ Mark D. Freeman By: /s/ Martin N. Singer
--------------------------------- ------------------------------------
Name Name Martin N. Singer
-------------------------------- Title Senior Vice President
Title Date
------------------------------- -----------------------------------
Date ***
AMENDMENT TO THE AGREEMENT BETWEEN
WESTSOUND BANK
AND
FISERV SOLUTIONS, INC.
This Amendment to the Agreement referenced above is made as of this ***.
The parties agree that this Amendment (the Amendment) and the Agreement (the
Master Agreement) constitute the entire Agreement between the parties. In the
event of any Inconsistency among the documents comprising the Agreement, the
following order of precedence shall apply:
a. This Amendment
b. The Master Agreement
The Agreement is hereby amended by adding the following additional services and
terms and conditions related thereto:
1. The following Exhibit(s) are added to the Agreement:
EXHIBIT C EFT SERVICES
a. The following new Section is added to the Exhibit C:
16. Term The Initial term of this Agreement shall commence on the date of
this Agreement and shall be co-terminus with the current Fiserv L.A.
ITI Agreement that begins on *** and expires on *** unless earlier
terminated in accordance with the terms of this Agreement. Unless
written notices of non-renewal is provided by either party at least
*** days prior to expiration of the initial term or any renewal term,
this Exhibit shall be co-terminus with the Fiserv Master Agreement
renewal term(s). Notwithstanding the termination or expiration of
other Fiserv Services, the terms and conditions of the Agreement shall
continue for the duration of the term of this Exhibit C.
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:
WESTSOUND BANK FISERV SOLUTIONS, INC.
By: /s/ Mark D. Freeman By: /s/ Martin N. Singer
--------------------------------- ------------------------------------
Name: Name: Martin N. Singer
------------------------------- Title: Senior Vice President
Title: Date:
------------------------------ ----------------------------------
Date: ***
EXHIBIT C-1
EXECUTIVE OVERVIEW
Fiserv will provide Client with the following EFT Services:
1. On-Line Host Interface. The operational environment that allows an
electronic transaction to the processed against a cardholder's account.
2. ATM Driving/Monitoring. The process of providing an ATM with the on-line
instructions necessary to process transactions and verifying equipment and
telephone operability.
3. Networks. Those regional or national ATM associations who provide
electronic access to financial transactions for cardholders of member
financial institutions. Networks are as set forth in Exhibit C-2.
4. Web Connectivity. Links Client's IBM compatible PC to the Fiserv System,
allowing Client to retrieve reports, retrieve transaction history, and
perform network adjustments.
5. Card Management. An automated system for plastic card ordering, pin
ordering, card re-issue tracking and "Hot Carding", accessible to Client
via On-Line Terminal Dial-Up PC or Batch Processing.
6. Transmissions. Transactions reports and settlement information transmitted
to Client's host data processing system.
7. Business Continuity. Fiserv's disaster recovery program.
8. Telecommunications and Equipment. ATM phone line and modems relevant to
driving and monitoring Client's ATMs.
9. Conversion Date. On mutually agreed upon date by Client and Fiserv.
EXHIBIT C-2
ESTIMATE OF MONTHLY CHARGES
WESTSOUND BANK
QUANTITY AMOUNT TOTAL
-------- ------ -----
ON-LINE AUTHORIZATION
On-Line Interface Maintenance Fee *** $*** $***
FILE STORAGE
Monthly File Storage Fee *** $*** $***
CAF File Data Base Storage Fee *** $*** $***
TRANSACTIONS
Stand-In Transactions *** $*** $***
Transaction Fees (ls,Ou)++ *** $*** $***
DEBIT CARD TRANSACTIONS
Visa Check Transaction Authorizations *** $*** $***
Visa Check Transactions Posted *** $*** $***
DEBIT CARD BACK OFFICE SUPPORT
Visa Check Back Office - Per Card Fee *** $*** $***
Visa Check Back Office - Chargebacks *** $***
Visa Check B/O - Representments $***
Visa Check Back Office - Retrieval Request *** $*** $***
Visa Check Back Office - Hot Card Service *** $*** $***
Visa Check International Hot Card $*** $***
Visa Check Back Office Monthly Charge *** $*** $***
Charges for Arbitration, etc. *** $*** $***
DEBIT CARD ACTIVATION
Card Activation Monthly Fee *** $*** $***
Card Activation Transactions *** $*** $***
NETWORKS
Exchange Monthly Membership Fee *** $*** $***
ICBA Plus Membership Fee *** $*** $***
ICBA Sponsorship Fee *** $*** $***
ICBA-Plus Pass-through Card Fee *** $*** $***
CONNECTIVITY
Web Connect Maint Fee *** $*** $***
Web Connect Port Access Fee *** $*** $***
Web Connect Per Security Token Maint Fee *** $*** $***
Web Connect Token Replacement Fee $***
File Maintenance
***er PC input Record Maintenance *** $*** $***
CARD MANAGEMENT *** $*** $***
Per Card Record Storage Fee *** $*** $***
BUSINESS CONTINUITY *** $*** $***
Monthly Business Continuity Fee *** $*** $***
SUB-TOTAL ESTIMATE OF MONTHLY CHARGES $***
GRAND TOTAL ESTIMATE OF MONTHLY CHARGES $***
Client is subject to Network Operating Rules, Fees and Settlement Funding
Requirements.
THIS DOCUMENT PREPARED ON: ***
EXHIBIT C-3
HOURS OF OPERATION
Fiserv will provide access to its EFT Services 24 hours a day, 365 days per
year, except for planned downtime that shall be reserved for scheduled
maintenance. The Client will be notified in advance of such downtime.
Client support assistance will be available during normal business hours, Monday
through Friday, with the exception of the following holidays: New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
When a holiday falls on Saturday, Fiserv will observe the preceding Friday, when
a holiday falls on Sunday, Fiserv will observe the following Monday.
EXHIBIT C-4
PERFORMANCE STANDARDS
If the EFT System Availability is less than *** percent for any full calendar
month (exclusive of planned downtime) as a result of an error or omission by
Fiserv, Fiserv shall credit the monthly fee payable by Client for that month by
$*** if availability is less than *** percent, Fiserv shall credit the monthly
fee by an additional sum of $*** or each additional percentage point that
availability is less than $***. The maximum credit provided to Client under this
standard shall not exceed the full amount of Fiserv's monthly invoice. Client
and Fiserv agree that these reductions in fees constitute a reasonable and fair
estimation of the damages arising to the Client from such non-availability of
EFT Services during such time. This credit is in addition to remedies available
to Client in the Agreement. Fiserv shall not be responsible for any delays or
interruptions in the EFT Services that may be caused by common carriers, or by
other causes beyond Fiserv's Control.
ICBA BANCARD - FISERV EFT PROGRAM
NETWORK SPONSORSHIP AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the ____ day of _______, 200__
(the "Effective Date"), between ICBA Bancard, Inc., a Delaware corporation
("Bancard") and WESTSOUND BANK, a _____________ chartered financial institution
("Program Member").
WITNESSETH:
WHEREAS, Program Member is a member of the Independent Community Bankers of
America ("ICBA") and has entered into a services agreement with Fiserv
Solutions, Inc. ("Fiserv") for participation in Independent Community Banker EFT
Services (the "Program"); and
WHEREAS, as part of the Program, Program Member desires to be sponsored by
Bancard for participation in one or more of several card associations' debit
card networks (the "Network" or "Networks"); and
WHEREAS, Program Member may elect to participate in the ICBA Bancard Fraud
Loss Protection Plan.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby mutually
agreed by and between the parties as follows:
1.0 APPOINTMENT OF BANCARD
1.1 Program Member hereby appoints Bancard its agent and authorizes
Bancard, its officers, directors, employees and agents, to take such action as
agent on its behalf, and to exercise such powers as are necessary, together with
such powers as are reasonably incidental thereto, to include Program Member in
the Program and to sponsor Program Member for membership (the "Sponsorship
Services") in one or more of the following Networks: Visa; MasterCard; Plus;
Interlink; Cirrus; Maestro.
1.2 Program Member hereby authorizes Fiserv to provide certain Confidential
Information to Bancard including, but not limited to, Program Member's
transaction data related to its participation in the Network(s) into which
Bancard is providing sponsorship (the "Selected Networks(s)"); provided,
however, that Bancard shall not have access to any non-public information
relating to any specific consumer or cardholder customer of Program Member.
1.3 Program Member hereby authorizes Fiserv to include, as part of Fiserv's
billing to Program Member, all fees owed by Program Member to Bancard under the
Program and authorizes Fiserv to remit to Bancard Program Member's payments to
Fiserv for the Sponsorship Services.
2.0 THE SPONSORSHIP SERVICES
2.1 Bancard agrees to sponsor Program Member for membership in the Selected
Network(s).
2.2 Program Member has completed the attached Correspondent Membership
Application for the Selected Networks. The completed Application is hereby
incorporated as if fully set forth herein.
2.3 Program Member agrees to pay Bancard the fees assessed by the Selected
Network(s) for Sponsored Members and any other fees, penalties and charges
assessed by the Selected Network(s) and listed on the attached Sponsorship Fee
Schedule, and as it may be amended from time to time.
2.4 Program Member agrees to provide prior written notice to Bancard of
change of name, charter, or main office.
2.5 Membership in the Selected Network(s) is not assignable or transferable
without the prior written consent of Bancard.
3.0 LEGAL COMPLIANCE
3.1 Program Member agrees to comply with all applicable rules, regulations,
operating procedures and membership duties, obligations and responsibilities
imposed by the Selected Network(s), Fiserv and Bancard. [Program Member agrees
to provide Fiserv with all data required by Fiserv or Bancard to prepare
Bancard's Quarterly Report of debit cards issued for the selected Network.
3.2 Upon receipt of verbal or written instructions from either Bancard or
the Selected Network(s), Fiserv may immediately cease to provide Program Member
access to the Selected Network(s). Fiserv shall use its best efforts to promptly
notify the program Member of any such interruption in service. Program Member
agrees to indemnify and hold Fiserv and Bancard harmless from any claims,
liabilities, losses and expenses, of any kind or nature, including attorneys'
fees, resulting from Fiserv's compliance with such instructions.
4.0 FRAUD LOSS PROTECTION PLAN
4.1 Bancard makes available a fraud loss protection plan (the "Fraud Loss
Plan" or "Plan") to Program Members issuing credit and debit cards through the
Bancard Program.
4.2 [ ] Program member ELECTS to join the ICBA BANCARD FRAUD LOSS
PROTECTION PLAN.
(a) Program Member has read and understands the Terms and Conditions
of the Fraud Loss Plan, a copy of which is attached hereto and incorporated
herein as if fully set forth.
(b) Bancard hereby agrees to assume responsibility for certain debit
card fraud losses of Program Member pursuant to the terms and conditions of the
Fraud Loss Plan upon payment by Program Member of the required service fees.
(c) Program Member agrees to utilize the Card Activation Services for
all Visa and MasterCard debit cards.
(d) Program Member agrees to utilize the back office support services
for chargeback provided by Fiserv.
4.3 [ ] Program Member DECLINES to join the ICBA BANCARD FRAUD LOSS
PROTECTION PLAN.
5.0 TERM
5.1 The term of this Agreement shall be concurrent with the attached Fiserv
Services Agreement.
5.2 Program Member agrees to provide one hundred eighty (180) days' prior
written notice of its intent to terminate the Fiserv Services Agreement.
6.0 TERMINATION
6.1 This Agreement shall terminate immediately if a petition in any
bankruptcy, reorganization, composition, extension, arrangement or insolvency
proceedings is filed by or against Program Member or if Program Member makes a
general assignment for the benefit of creditors, or if Program Member makes
application for or acquiesces in the appointment of a trustee or receiver for
all or substantially all of its property or if Program Member ceases to do
business for any reason.
6.2 This Agreement shall terminate on thirty (30) days' prior written
notice by one party of the non-performance by the other party of any of its
obligations under this Agreement or the breach thereof of any of the terms,
conditions, representations or agreements contained herein, if such
non-performance or breach is not cured prior to the expiration of such notice
period.
6.3 Bancard or Program Member may terminate this Agreement at any time for
any reason or for no reason upon one hundred eighty (180) days' prior written
notice.
7.0 INDEMNIFICATION
7.1 Program Member agrees to indemnify and hold Bancard, its subsidiaries,
affiliates, successors and assigns, and their shareholders, directors, officers,
employees and agents, harmless from and against all liabilities, claims,
damages, losses, expenses, including reasonable attorneys' fees, which arise out
of, or in connection with, directly or indirectly, Program Member's membership
and/or participation in the Selected Network(s) including, but not limited to,
any failure of Program Member to comply with laws, rules and regulations
applicable to the Program, which indemnity shall be effective regardless of
whether Program Member uses any forms or other materials supplied by Bancard or
Fiserv; provided, however, that Program Member shall have no liability for
willful or negligent acts or omissions by Bancard.
8.0 CONFIDENTIALITY
8.1 Bancard agrees that Program Member's Confidential Information shall
remain the property of Program Member and that Bancard shall not use
Confidential Information except as may be required in connection with the
services provided by Bancard under this Agreement. The Confidential Information
is made available on a limited use basis solely in connection with this
Agreement, and Bancard will not disclose or otherwise make available the
Confidential Information, in whole or in part; provided, however, that Bancard
shall bear no responsibility for the disclosure, inadvertent or otherwise, of
information that is established to be in the public domain; is in Bancard's
possession prior to receipt of the same from Program Member; is rightfully
obtained from a third party; or is disclosed pursuant to judicial or
governmental process. Upon termination of this Agreement, all copies of the
Confidential Information provided to Bancard by Program Member shall be returned
to Program Member. Bancard agrees that it will not use any nonpublic personal
information about Program Member's customers in any manner prohibited by Title V
of the Gramm-Leach-Bliley Act. To the extent necessary and if required to do so,
Bancard shall implement and maintain appropriate measures designed to meet the
objectives of the guidelines establishing standards for safeguarding non-public
customer information as adopted by any federal regulatory agencies having
jurisdiction over Program Member's affairs. These measures will include taking
appropriate actions to address incidents of unauthorized access to Program
Member's sensitive customer information, including notification to Program
Member as soon as possible of any such incident.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed as of the Effective Date.
BANCARD
ICBA BANCARD, INC.
BY:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
PROGRAM MEMBER
WESTSOUND BANK
BY: /s/ Mark D. Freeman
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Date: ***
-------------------------------
ICBA BANCARD, INC.
CORRESPONDENT MEMBERSHIP APPLICATION AND AGREEMENT.
In consideration of the mutual covenants set forth herein and the mutual
benefits heretofore set forth in the VISA, PLUS, and INTERLINK Application for
Membership and/or the MASTERCARD International Application for Membership and
License to Use Service Marks, Corresponding Member ("Bank") and Principal Member
Sponsor ("ICBA Bankcard") hereby agree as follows:
1. Existing Visa & MasterCard Members (Indicate all each that applies):
[ ] VISA USA BID NO.: _____________________
PRINCIPAL MEMBER? YES/NO (Circle)
[ ] MASTERCARD INTERNATIONAL ROUTING & TRANSIT NO.: _______
PRINCIPAL MEMBER? YES/NO (Circle)
2. ICBA Bancard will sponsor Bank into the below selected Network(s).
3. Bank's duties and obligations under this Agreement shall be those arising
in connection with the services marked below.
[ ] INITIAL ICBA BANCARD NETWORK SPONSORSHIP (Indicate requested
sponsorship below & complete appropriate licensing)
[ ] CHANGE OF CURRENT SPONSORSHIP (Indicate changes below & complete
appropriate licensing)
[ ] NO CHANGES (indicate current sponsorship below)
[ ] SPONSORSHIP NOT REQUESTED (Complete Correspondent Member section
below)
Select all of the following which apply:
[ ] Debit Card Issuer (one in each block):
[ ] VISA
OR
[ ] MASTERCARD
[ ] PLUS
OR
[ ] CIRRUS
[ ] INTERLINK
OR
[ ] MAESTRO
[ ]
[ ] Acquirer (ATM Owner): [ ] PLUS and/or [ ] CIRRUS
4. Bank agrees to pay the fees listed in the PLUS / CIRRUS / INTERLINK
/MAESTRO Operating Regulations, in addition to the following ICBA Bankcard
Sponsorship Fees:
$*** IMPLEMENTATION FEE (If initial ICBA Bancard Network Sponsorship)
$*** MONTHLY SPONSORSHIP FEE
$*** MONTHLY MEMBERSHIP FEE PER NETWORK (As stated in Operating
Regulations)
$*** MONTHLY CARD ROYALTY/CARDBASE MEMBERSHIP FEE, PER CARD & PER ISSUER
NETWORK
(REPLACES THE ANNUAL CARD ROYALTY FEE IN OPERATING REGULATIONS)
Accepted and Approved:
(ICBA BANCARD & TCM BANK LOGO)
CBA BANCARD, INC. CORRESPONDENT MEMBER
2107 WILSON BLVD., SUITE 400 WESTSOUND BANK
ARLINGTON, VA 22201 190 PACIFIC AVE.
Principal Sponsoring Member BREMERTON, WA 98337
Signature: Signature: /s/ Mark D. Freeman
-------------------------- -----------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date: ***
------------------------------- ----------------------------------
FRAUD LOSS PROTECTION PLAN AGREEMENT
TERMS AND CONDITIONS
PURPOSE
In consideration of the payment of your month Plan fee, ICBA Bancard agrees
to relieve you as a participating bank in ICBA's Fraud Loss Protection Plan of
responsibility for losses arising from the FRAUDULENT USE of credit or debit
cards (cards) you have issued through the ICBA Bancard program.
ICBA'S FRAUD LOSS PROTECTION PLAN COVERS THE FOLLOWING CARD FRAUD
CATEGORIES:
Lost Cards
Stolen Card
Cards Not Received in the mail (NRI)
Counterfeit (including skimmed counterfeit cards)
Account Takeover card loss
ICBA'S FRAUD LOSS PROTECTION PLAN COVERAGE DOES NOT INCLUDE:
Fraudulent Application
Credit Loss
Bankruptcy
ICBA's Fraud Loss Protection Plan Coverage applies to the FRAUDULENT USE of
cards to obtain:
Currency;
Coins;
Bank notes;
Travelers checks;
Money orders; and
Similar written promises to pay money for the purchase or lease of goods or
services except when:
1. The participant can legally obtain reimbursement from cardholders,
cardholder family members, merchants, financial institutions, card
associations or clearing houses representing you;
2. The loss resulted from a card issued without an application other than
the replacement of a card previously issued by you;
3. The loss resulted from uncollected interest or discounts;
4. The loss resulted from the use of the card to guarantee the cashing of
a check or draft;
5. The loss resulted from the fraudulent, dishonest or criminal acts of
one or more of your officers, directors or employees;
6. The loss arose from the use of a genuine card issued by you by an
authorized person using his or her genuine signature with intent to
defraud;
7. The loss arose from the use of a card by a family member or relative
of a cardholder;
8. The loss is of a consequential nature including but not limited to
interruption of business, delay or loss of market or cost of replacing
or reissuing such cards;
9. The loss resulted from the complete or partial non-payment of, or
default upon, any loan or transaction in the nature of, or amounting
to, a loan made by or obtained from you; and/or
10. The loss was not discovered within 60 days of cancellation of this
agreement or the fraudulent use occurred prior to the term of the
agreement or after cancellation of this agreement.
11. Losses resulting from the issuing of cards without CVV or CVC coding,
or losses resulting from authorized transactions in which CVV or CVC
was not verified.
12. Losses which exceed the limits of coverage noted below or fall within
the deductibles noted below.
13. Losses arising from a participating bank that had not enrolled in an
available CARD ACTIVATION PROGRAM prior to the date the fraud loss
occurred.
TERM OF AGREEMENT
This Agreement will begin with the *** you make your service charge payment
and continue until ***.
LIMITS OF COVERAGE
Your responsibility for covered losses is waived as long as they do not
exceed:
Per Account Limit
$*** account;
Annual Limits
$*** bank
$*** participating banks
Annual limits are based on all paid fraud losses that occurred in a
twelve-month calendar period.
DEDUCTIBLE AMOUNTS
Non-business card eligible losses are subject to *** per account deductible
plus a co-payment *** for all losses in excess of *** up to ***.
Business card eligible losses are subject to a $*** per account deductible
plus a co-payment of *** for all losses in excess of $*** up to the per account
limit of $***.
Deductibles and co-payments are considered part of the $*** per account
limit.
YOUR COST
The cost to you for this Protection Plan consists of an initiation fee of
$*** which is waived if you accept the Plan when you first join ICBA Bancard),
plus $ *** per CREDIT CARD account on file with ICBA Bancard, or $ *** per debit
card on file for DEBIT PROGRAM, at the end of each month of coverage.
PROTECTION PLAN CONDITIONS AND OBLIGATIONS
1. LOSS RECOVERY - each participating bank must do all it can to preserve
any right of recovery available. If ICBA Bancard makes a payment under
this Agreement, that right of recovery will belong to Bancard. If
Bancard recovers more than it has paid, the excess will belong to the
bank which had the loss after Bancard deducts its expenses in
obtaining the recovery.
2. CARD ACTIVATION SYSTEM - you are required to enroll in the CARD
ACTIVATION PROGRAM.
3. CLAIM REPORTING OBLIGATIONS - You must report card losses to Certegy
Card Services or Fiserv EFT no later than *** days after discovery.
You must complete an ICBA Bancard Member Loss Reporting Data Sheet
(copy attached) as soon as possible, but no later than *** days after
receiving the CLOSE-OUT PACKET from your processor. All claims must be
received within *** months from the date the fraud occurred, inclusive
of all required documentation. You agree to supply Bankcard with
requested documentation which may include the following:
- Signed affidavits
- Detailed written description of the loss including period over
which losses occurred, number of cards involved in the loss, and
other information pertaining to the nature of the loss
- Police reports
- Transcript or tape representing drafts pertaining to the loss
- Documentation of all parties notified regarding the loss
- Cardholder(s) credit limit(s)
- Cardholder data that can be easily validated by phone.
- Other reasonable request for documentation not list above
4. ICBA Bancard will pay covered losses within *** days from receipt of a
completed claim packet.
5. Cancellation or Termination - You may cancel this plan by written
notice to ICBA Bancard. ICBA Bancard has the right to cancel this
participation agreement within *** days written notification.
DEFINITIONS
ACCOUNT TAKEOVER: The result of an unknown or unauthorized person impersonating
a legitimate card owner with the intent of taking over the account.
BUSINESS CARD: A card issued in the name of a business.
BANKRUPTCY:
CARD ACTIVATION PROGRAM: Program which requires legitimate Card owners to call a
toll-free, 24-hour staffed telephone number to validate their cards prior to
first use.
CARD NOT RECEIVED (NRI): A new Card or reissued card that the legitimate card
owner claims not to have received.
CARD VERIFICATION VALUE (CVV)/CARD VERIFICATION CODE (CVC): A unique check value
encoded on the Magnetic Stripe of a Card used to validate Card information
during the Authorization process.
CARD VERIFICATION VALUE2 (CVV2)/CARD VERIFICATION CODE2 (CVC2): A unique 3-digit
check value generated using a secure cryptographic process that is
indent-printed on the back of the Card.
CLOSE-OUT PACKET: Documentation gathered and sent by Equifax Card Solutions
Fraud Department in connection with a fraud loss. This packet is required when
submitting a loss claim.
COUNTERFEIT CARD: A Card or convenience check that have been fraudulently
printed, embossed, or encoded to appear as a genuine Visa or MasterCard card.
CREDIT CARD: A card, with a credit limit used to purchase goods and services, or
obtain cash advances on credit.
CREDIT LOSS: The amount lost as a result of a cardholder's non-payment of the
amount owed on the account.
DEBIT CARD: A card, used to purchase goods and services and to obtain cash,
which debits the cardholder's personal deposit account.
FRAUDULENT APPLICATION: An application containing false information for the
purpose of obtaining a card.
FRAUDULENT USE: Unauthorized use of any lost card, stolen card; INCLUDING NOT
RECEIVED ISSUED (NRI), account takeover and counterfeit cards issued by a
participant bank which results in an unpaid debit.
MEMBER LOSS REPORTING FORM: The form required for completion by the Bank, which
is used when submitting by fraudulent claim loss to ICBA Bancard.
PROCESSOR: A member, or Visa, or a Visa-approved non-member acting as the agent
of a Member, that provides Authorization, Clearing, or Settlement services for
Members and Merchants, (i.e. Equifax Card Solutions and Fiserv EFT)
SKIMMED COUNTERFEIT: occurs when thieves acquire a valid card number and
expiration date by running the card through a "skimming" device that pulls
the data from the cards magnetic strip
ICBA PROGRAM MEMBER EXHIBIT
WHEREAS, Client is a member of the Independent Community Bankers of America
("ICBA") and has entered into an agreement with ICBA Bancard, Inc. ("Bancard"),
a subsidiary of ICBA, for participation in the Bancard EFT Program ("Bancard
Program") as a participating member ("Program Member"); and
WHEREAS, Client as a Program Member is being sponsored by Bancard for
participation in either (a) the Plus / Visa or (b) the Cirrus / MasterCard card
associations' debit card networks. Additionally, Client as a Program Member may
also be participating in the ICBA Bancard Fraud Loss Protection Plan as part of
the Bancard Program; and
WHEREAS, Fiserv and Client have entered into a data processing services
agreement ("Fiserv Agreement") whereby Fiserv provides to Client certain
electronic funds transfer processing services; and
NOW THEREFOR, Fiserv and Client wish to amend and supplement the Fiserv
Agreement to facilitate Client's participation in the Bancard Program as
follows:
1. APPOINTMENT OF BANCARD.
A. Client has appointed Bancard its agent and has authorized Bancard, its
officers, directors, employees and agents, to take such action as agent on its
behalf, and to exercise such powers as are necessary, together with such powers
as are reasonably incidental thereto, to include Client as a Program Member in
the Bancard Program. Client hereby authorizes Fiserv to provide certain
Confidential Information to Bancard, including but not limited to Client's
transaction data related to its participation in any debit network to which
Bancard is providing Sponsorship, provided, however, that Bancard shall not have
access to any non-public information relating to any specific consumer or
cardholder customer of Client.
B. Client agrees that Fiserv may include, as part of Fiserv's billings to
Client, any and all charges owed by Client to Bancard under the Bancard Program
and authorizes Fiserv to remit to Bancard Client's payments to Fiserv for
Bancard Program services. Fiserv shall only remit to Bancard those Bancard fees
and charges actually paid by Client to Fiserv.
2. LEGAL COMPLIANCE.
Client shall be solely responsible for its compliance with the applicable rules,
regulations, bylaws, operating manuals, operating letters, operating
regulations, procedures and policies of Bancard, as now or hereafter in effect
and as from time to time amended, restated or supplemented.
3. TERMINATION.
A. Client shall promptly notify Fiserv in the event of Client's termination for
any reason of participation, whether in whole or in part, in the Bancard
Program.
B. Fiserv may notify Bancard in the event of Client's termination, for any
reason of this Agreement.
4. REPRESENTATIONS OF CLIENT.
Program Member represents and warrants to Fiserv that on and as of the date
hereof and on a continuing basis (i) Client is a Program member and (ii) the
consummation of the transactions involving Client as a Program Member
contemplated hereby have been duly and validly authorized by the Board of
Directors of Client.
5. INDEMNIFICATION
Client as a Program Member agrees to indemnify and hold Bancard and Fiserv,
their subsidiaries, affiliates, successors and assigns, and their shareholders,
directors, officers, employees and agents, harmless from and against all
liabilities, claims, damages, losses, expenses including reasonable attorneys'
fees, which arise out of, or in connection with, any failure of Client to comply
with laws, rules and regulations applicable to the Bancard Program and its use
of Program Services, which indemnity shall be effective regardless of whether
Client uses any forms or other materials supplied by Bancard or Fiserv;
provided, however, that Program Member shall have no liability for willful or
negligent acts or omissions by Bancard or Fiserv, their employees, agents or
representatives.
6. CONFLICT.
It is the intent of the parties that this ICBA Program Member Exhibit be
supplemental to the Fiserv Agreement. However, in the event of a conflict in
terms between this Exhibit and the Fiserv Agreement, the terms of this Exhibit
shall control.
FOR CLIENT: FOR FISERV:
WESTSOUND BANK FISERV SOLUTIONS, INC.
By: /s/ Mark D. Freeman By: /s/ Martin N. Singer
--------------------------------- ------------------------------------
Name: Name: Martin N. Singer
-------------------------------
Title: Title: Senior Vice President
------------------------------
Date: *** Date:
----------------------------------