(LOGO) Logo of FIserv CIR, Inc.
THE FINANCIAL DATA SERVICES COMPANY DATA PROCESSING AGREEMENT
THIS IS AN AGREEMENT, dated as of August 1, 1994 , between FIserv CIR,
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Inc. a Delaware corporation ("FIserv"), and
United Bankshares, Inc.
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500 Virginia Street
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Charleston, WV 25392 (the Client")
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BACKGROUND
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FIserv provides data processing services to a number of its client. The Client
desires to engage FIserv to provide such services to the Client.
WHEREFORE, the parties hereto, in consideration of the mutual covenants
contained herein and intending to be legally bound, hereby agree as follows:
1. EFFECTIVE DATE.
The effective date of this Agreement (the "Effective Date") shall be the date
first written above.
2. THE SERVICES.
The data processing and reporting services that FIserv offers as of the
Effective Date are set forth in Exhibit A, which is attached hereto and hereby
incorporated by reference. The services that FIserv shall provide to the Client
hereunder shall be those data processing and reporting services that FIserv is
offering from time to time that the Client shall request from FIserv from time
to time (collectively, the "Services"). During the Initial Term (as defined in
Section 6 hereof), the Client agrees to use FIserv as its sole and exclusive
data processor at least for each of the Basic Services set forth in Exhibit A.
3. FEES.
3.1(a) Subject to the terms and conditions below, the total monthly fee (the
"Fixed Monthly Fee") to be charged beginning on the Effective Date shall be
Eighty Three Thousand Two Hundred Fifty
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Dollars
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($83,250.00)
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The Fixed Monthly Fee shall include all of those Services identified with a "B"
in the left margin of the Fee Schedule on Exhibit B, which is attached hereto
and hereby incorporated by reference.
3.1(b) Except for potential adjustments as outlined in paragraphs,
3.1(c), 3.1(d), and 3.3 below, the Fixed Monthly Fee shall remain in effect
through December 31, NA. From January 1, NA, through the last day of the term
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of this Agreement (as defined in Section 6 hereof), the Fixed Monthly Fee in any
given calendar year shall not increase by more than the aggregate annual
increase in the previous calendar year's Consumer Price Index, as promulgated
by the United States Department of Labor or any successor agency ("CPI").
3.1(c) Annually throughout the term of this Agreement, in the event that the
Client's then current volume for those categories listed on Exhibit C, which is
attached hereto and hereby incorporated by reference, exceeds the volumes as of
the prior year end by more than five percent (5%), the Fixed Monthly Fee shall
be increased by the defference between the percentage of actual volume growth
and 5%. For this comparison volumes shall be determined by averaging the
actual volumes of the final three (3) months of each respective calendar year,
and the percentage of actual volume growth, if any, shall be determined on an
average percentage difference basis, whereby percentage differences (current
over prior year) for each category on Exhibit C shall be individually
calculated and then averaged.
3.1(d) In the event that the Client (i) acquires other financial institutions or
branches or portfolios of accounts for which FIserv will provide data processing
services under the terms and conditions of this Agreement or (ii) elects to have
FIserv provide data processing services to existing affiliates other than the
aforementioned under the terms and conditions of this Agreement, the Fixed
Monthly Fee shall be increased upon the conversion of each such acquisition or
affiliate. Such increases(s) shall be calculated by applying the rates in
FIserv's then current fee schedule to the incremental accounts and activity
converted by such acquisition(s) or affiliate(s).
3.2 The fees to be charged as of the Effective Date for each of the Services not
includes in the Fixed Monthly Fee defined in paragraph 3.1 above are set forth
in the fee schedule on Exhibit B. FIserv may charge these fees from time to time
by giving the Client prior written notice of such change in fees.
3.3 New or replacement services that may be made available to the Client
subsequent to the Effective Date shall be priced by FIserv at levels FIserv
deems appropriate. However, once the Client begins to receive any such new or
replacement services, increases in the fees to be charged for such new or
replacement services shall be governed by the provisions of this Section 3.
3.4 FIserv shall invoice the Client on a monthly basis for all services rendered
in the prior month. The Client shall pay such invoice within 15 days of its
receipt thereof.
4. EQUIPMENT AND SUPPLIES.
4.1 The Client shall obtain and maintain at its own expense such data processing
and communications equipment as may be necessary or appropriate to facilitate
the proper use and receipt of the Services. Should the Client order equipment
through FIserv during the term of this Agreement, the Hardware Purchase
Agreement in Exhibit E, which is attached hereto and hereby incorporated by
reference, shall apply to such order(s).
4.2 The Client shall be responsible for paying for all supplies to be used in
connection with the Services.
5. SYSTEMS MODIFICATION; AMENDMENT OF SERVICES.
5.1 FIserv may modify, amend, or provide an appropriate replacement for any of
the Services or any element of its systems at any time (i) to improve the
Services or (ii) to facilitate the continued economical provision of the
Services.
5.2 FIserv may, at any time, withdraw any of the Services designated as
"Ancillary Services" in Exhibit A upon prior written notice of at least six (6)
months to the Client.
5.3 Notwithstanding the provisions of Section 5.2 hereof, either party may
terminate any of the Services immediately upon prior written notice to the
other party upon any legislative, regulatory, or judicial disapproval of such
service or any material aspect or portion of such service.
5.4 Notwithstanding the provisions of Section 5.2 hereof, FIserv may terminate
any of the Services upon prior written notice to the Client of ninety (90) days
or a shorter term if so required, upon imposition by any legislative,
regulatory, or judicial authority of restrictions or conditions that would
materially affect the integrity of such service.
6. TERMINATION.
6.1 Subject to the termination provisions set forth herein, the initial term of
this Agreement shall commence on the Effective Date and continue for five (5)
years (the "Initial Term"). Thereafter, this
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(LOGO) Logo of FIserv CIR, Inc.
THE FINANCIAL DATA SERVICES COMPANY DATA PROCESSING AGREEMENT
Agreement shall continue in effect until it is terminated in accordance with
such termination provisions. Either party may terminate this Agreement
immediately at any time upon an Event of Default (as defined in Section 14
hereof) by the other party. Either party may terminate the Agreement without
cause at the end of the Initial Term or at any time thereafter, upon prior
written notice to the other party of at least one (1) year.
6.2 In the event (i) the Client expresses its desire in writing to terminate
this Agreement prior to the end of the Initial Term as a result of the Client
having been acquired, (ii) the Client shall convert at least all of the Basic
Services from FIserv to such acquirer, (iii) the Client has paid to FIserv all
fees due under this Agreement, (iv) FIserv has not committed an Event of Default
hereunder, and (v) the Client provides FIserv with one (1) year's prior written
notice; the parties agree as follows:
(a) The Client shall pay the fees normallly due to FIserv hereunder in each
subsequent month until the Client is deconverted from FIserv's systems. Fees for
services not included in the Fixed Monthly Fee shall be FIserv's then current
standard fees, and notwithstanding any limits upon fee increases or total fees
provided for in this Agreement.
(b) In addition, prior to the Client's deconversion of the first Basic Service
of the first affiliate from FIserv systems, the Client shall pay to FIserv as
liquidated damages an amount equal to seventy-five percent of the Fixed Monthly
Fee in effect prior to the deconversion of such Basic Service multiplied by the
number of remaining months in the Initial Term, or any renewal term, from the
final deconversion, plus, if applicable, (1) any amounts representing
unamortized or undepreciated assets purchased or incurred by FIserv solely on
behalf of the Client, and (2) any shut down expenses associated with a
facilities management arrangement. In the event the Client's final deconversion
date occurs after the projected final deconversion date, FIserv shall credit the
Client's invoice for the liquidated damages amount applicable to such fees for
such month; provided, however, FIserv has been paid the liquidated damages. The
parties agree that these damage provisions are reassonable in light of all
present and predictable circumstances.
7. BACKUPS.
The Client shall maintain backup copies of all programs and systems
documentation provided by FIserv to the Client related to the Client's
responsibilities hereunder. The Client shall maintain files that shall
permit economical regeneration of data stored at its site or transmitted to
FIserv for processing. The Client also shall arrange in advance for access by
it to alternate data processing facilities capable of processing and
transmitting its data to FIserv in the event the Client's hardware and software
is not performing satisfactorily.
8. FISERV SOFTWARE.
The Client acknowledges that it does not have right or title to any of the
software, systems documentation, guidelines, procedures, or related materials
that may be used or provided by FIserv hereunder (collectively, the "Software"),
except to use the Software for the purposes set forth herein during the term of
this Agreement. The Client shall protect the confidentiality of the Software and
shall not disclose any information with respect to the Software to any third
party without FIserv's prior written consent unless required to do so by law.
Upon the termination of this Agreement by either party, the Client shall
immediately return all of the Software to FIserv in whatever form the Software
may then exist.
9. DATA OWNERSHIP CONFIDENTIALITY.
9.1 The Client is the sole owner of all data supplied by it to FIserv for
processing hereunder, regardless of the fact that FIserv may place such data in
a master file or otherwise record such data in various media. Subject to the
provisions of this Agreement, FIserv shall supply such data to the Client upon
the request of the Client and upon termination of this Agreement, on a medium
elected by the Client, provided that the medium selected is being used by FIserv
at the time for the processing of such data. The Client shall pay for FIserv's
work in providing such data at FIserv's rates then in effect for computer and
personnel time, supplies, and other items as required.
9.2 FIserv shall protect the confidentiality of Client's work and data actually
received by it to the same extent as it does its own. FIserv shalll not divulge
such work and data to any third party without the prior written consent of the
Client, except as it may be permissible under this Agreement or by applicable
law.
9.3 Both parties shall respect and protect the confidentiality of this
Agreement.
10. AUDITS; EXAMINATIONS; COMPLIANCE.
10.1 The Client shall be responsible for initiating and performing its own
audits at its own expense. The Client may appoint an independent certified
public accounting firm to conduct any or all audits on its behalf. The
performance of the Services by FIserv for the Client hereunder shall be subject
to examination by regulatory agencies or the Clients auditors to the same extent
as if they were performed by the Client on its own premises. FIserv shall
cooperate with any regulatory agency authorized to examine the Client.
10.2 The Client shall be solely responsible for its compliance with any and all
federal, state, and local statutes, ordinances, regulations, rules, and other
law applicable to the Client and its operations. FIserv shall use good efforts
in helping the Client to comply with such laws and regulations.
11. WARRANTY; DISCLAIMER OF WARRANTIES.
FIserv WARRANTS THAT IT SHALL PROVIDE THE CLIENT WITH SERVICES SIMILAR IN
QUALITY AND FUNCTION TO THE SERVICES FIserv PROVIDES TO ITS OTHER DATA
PROCESSING CLIENTS OF SIMILAR SIZE RECEIVING SIMILAR SERVICES. EXCEPT FOR THE
FOREGOING, FIserv MAKES NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, OF ANY KIND.
FIserv EXPRESSLY DISCLAIMS, AND CLIENT EXPRESSLY WAIVES, ANY AND ALL WARRANTIES,
INCLUDING WITHOUT LIMITATION MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. NO DESCRIPTIONS OR SPECIFICATIONS. WHETHER OR NOT INCORPORATED INTO
THIS AGREEMENT, SHALL CONSTITUTE WARRANTIES OF ANY KIND.
12. INDEMNIFICATION.
The Client agrees to relieve FIserv from any and all liability to the Client in
connection with FIserv's performance of this Agreement, unless FIserv is grossly
negligent or engages in willful misconduct, and as to third parties, to
indemnify FIserv and hold FIserv harmless from any and all liabilities, losses,
or damages, including reasonable attorney's fees, incurred by FIserv as a result
of claims, demands, lawsuit, or judgments arising from or in connection with
FIserv performance of this Agreement.
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(LOGO) Logo of FIserv CIR, Inc.
THE FINANCIAL DATA SERVICES COMPANY DATA PROCESSING AGREEMENT
13. FORCE MAJEURE.
Notwithstanding any other provision of this Agreement, neither party shall be
liable to the other party for any failure, inability to perform, or delay in
performance hereunder, if such failure, inability, or delay be due to acts of
God, war, civil commotion, governmental action, fire, explosion, strikes, other
industrial disturbance, equipment malfunction that is beyond its reasonable
control, or any other cause that is beyond its reasonable control.
14. EVENTS OF DEFAULT.
It shall be an Event of Default if either party commits a material breach of its
covenants or obligations hereunder and the defaulting party has not cured such
breach within a reasonable period of time after receipt of written notice.
15. LIMITATION OF LIABILITY.
15.1 FIserv's aggregate liability to the Client hereunder shall be limited to an
amount equal to the amount of fees paid by the Client to FIserv hereunder during
the six (6) months immediately preceding the event from which such liability
should arise.
15.2 FIserv and the Client expressly waive all claims for any additional
incidental, consequential, compensatory, or punitive damages.
15.3 FIserv and the Client agree that these damage provisions are reasonable in
light of all present and predictable circumstances (including expectable actual
damages and the fact that the fees charged and to be charged by FIserv hereunder
do no include amounts sufficient to insure against greater claims).
16. TAXES.
The Client shall be responsible for paying any and all taxes (other than any
franchise taxes imposed upon FIserv and any taxes based upon FIserv's new
income) arising from or relating to (i) this Agreement, (ii) the Services
provided hereunder, or (iii) the relationship created between the Client and
FIserv under this Agreement. In the event that FIserv should pay any such tax or
taxes, the Client shall promptly reimburse FIserv for any such payment upon
receipt of a bill for such payment.
17. LIMITATION PERIOD.
No lawsuit or other action may be brought by either party hereto on any claim or
controversy based upon or arising in any way out of this Agreement after one (1)
year from the date of the occurrence allegedly giving rise to the action.
18. NOTICES.
All notice permitted or required by this Agreement shall be in writing and shall
be deemed to have been duly given if sent by personal delivery, or mail,
addressed, in the case of notice to FIserv, to:
Ms. Karen M. Lampman
Vice President
FIserv CIR, Inc.
500 Grant Street, Suite 815
Pittsburgh, PA 15219-2502
and in the case of notice to the Client to:
Mr. Kenneth Greear
Vice President
United National Bank
500 Virginia Street
Charleston, WV 25392
or to such other address, or addresses as the party to receive notice may
provide in writing to the other party in accordance with the notice provisions
of this Section 18.
19. GENERAL PROVISIONS.
19.1 This Agreement shall inure to the benefit of and shall be binding upon the
respective successors and assigns/delegates of the parties hereto. Either party
may assign its rights or delegate its duties in this Agreement without the prior
consent of the other party, except if such transfer would be to a direct
competitor of the other party in which case consent would be required.
19.2 This Agreement shall be governed by the laws of the Commonwealth of
Pennsylvania.
19.3 The section headings in this Agreement are intended to be for reference
purposes only and shall not modify or restrict any of the terms hereof.
19.4 To the extent possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable laws,
but if any provision of this Agreement shall be held to be invalid, illegal, or
unenforceable, such provision shall be ineffective only to the extent of such
invalidity, illegality, or unenforceability, without rendering invalid, illegal,
or unenforceable the remainder of such provision or the remaining provisions of
this Agreement,
19.5 This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same Agreement.
19.6 This Agreement contains the entire agreement of the parties relating to the
subject matter hereof and supersedes any prior agreements or representations
relating to such subject matter that are not set forth herein. This Agreement
may be amended only in writing executed by the parties hereto.
IN WITNESS HEREOF, the parties hereto have executed this Agreement, to be
effective as of the date first written above.
FIserv CIR, Inc.
By
Title
Attest:
United Bankshares, Inc.
[Name of Client]
By
Title
Attest
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ADDENDUM made as of even date to FIserv Data Processing Agreement of August 1,
1994 between FIserv CIR, INC., a Delaware corporation, ("FIserv"), and United
Bankshares, Inc. ("Client").
1. INTEGRATION.
The FIserv Data Processing Agreement (the "Contract") to which this Addendum is
attached and this Addendum together constitute a binding agreement (the
"Agreement") between FIserv and Client in accordance with the terms of the
Contract and this Addendum. In the event of a conflict or inconsistency between
the terms of the Contract and the terms of this Addendum, the terms of this
Addendum shall control.
2. AFFILIATES INCLUDED AS OF THE EFFECTIVE DATE.
The following affiliates are included in this Agreement as of the Effective
Date: United National Bank, United National Bank/South and Bank First.
3. ALLOWANCES AND CAPS IN THE FIXED MONTHLY FEE.
3.1 The Fixed Monthly Fee shall include the following Service subject to an
annual noncumulative allowance of: 1 original of the Third Party Audit Review.
3.2 The Fixed Monthly Fee shall include the Data Access Service ("DAS") to the
extent usage charges exceed $4,000 per month. In the event the Client implements
the InformEnt(R) product, the aforementioned DAS cap shall be replaced by a
noncumulative, monthly DAS allowance of $10,000. Such allowance shall last for a
period of one (1) year and thereafter be replaced by a $1,000 allowance.
4. CPI ADJUSTMENT.
4.1 FIserv agrees that it shall not assess the CPI adjustment to the Fixed
Monthly Fee in Contract Section 3.1(b) during the Initial Term of the Agreement.
4.2 Except for third party services. FIserv agrees not to increase fees for
variable services until January 1, 1996 and such increases shall not exceed the
CPI of the prior calendar year.
5. FEE WAIVERS AND CREDITS.
5.1 FIserv agrees to waive the license fee for the FTSS product.
5.2 Flserv agrees to perform a one-time operations consulting service and to
waive the $20,000 fee. The consulting study entails the following areas: (1)
determine the scope of the project: (2) completion of consulting questionnaires:
(3) processing of preliminary staffing models: (4) on-site visitations: and (5)
a final report summarizing findings and recommended solutions. FIserv shall be
available to advise the Client on implementation of the recommendations at
FIserv's then current rates.
5.3 FIserv agrees to credit the Clients invoice $6,667.00 per month effective
January 1, 1995. Such credit shall last for a period of twelve (12) months.
5.4 FIserv agrees to waive the one-time setup fees for the following services:
CL Plus, Retail Loans, On-Line Collections, On-Line GL. Large Currency
Reporting, the overnight investment module and Safe Deposit Box.
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6. SERVICE LEVEL COMMITMENTS.
For purposes of the service level commitment categories set forth below, the
described services shall be deemed to be "available" to the Client if FIserv's
computer system, including all hardware and software necessary to provide the
Client with the Services contemplated by this Agreement, is available to accept
and process all imput contemplated by this Agreement from Client and necessary
to provide the Services in question. All service levels commitments shall be
averaged within each measurement period and national holidays are excluded.
A). RESPONSE TIME. FIserv shall provide response time for the central processor
to receive an Inquiry transaction from the communications controller at
FIserv's data center, process that transaction and return the answer to the
controller of three (3) seconds or less as determined from measurements
taken over a calendar month, ninety-five (95%) percent of the time from
8:00AM to 8:00PM Client Local Time ("CLT"), Monday through Saturday.
B). APPLICATION REPORT AVAILABILITY. FIserv shall make available to the Client
at the FIserv Output Print System or other output distribution medium or
product, critical reports for the Basic Services, no later than 7:00AM CLT
each business day or 10:00AM CLT if such business day falls on the first
calendar day of the month (General Ledger an additional 2 hours in each
case), provided the Client has completed transmission of the data to be used
in generating such reports to FIserv no later that 12:01AM CLT. FIserv shall
provide such reports to the Client in accordance with the above schedule at
least ninety-five percent (95%) of the time measured over a calendar month.
C). TELEPROCESSING AVAILABILITY. FIserv shall make its teleprocessing services
available to the Client at least ninety-five (95%) of the time from 8:00AM
to Midnight CLT, Monday through Saturday, measured over a calendar month.
7. EQUIPMENT SUPPORT COMMITMENTS.
7.1 Unisys V410: FIserv agrees to support this equipment through the Initial
Term of this Agreement. FIserv agrees to provide technical resources at no
charge to modify and support the print reformat program on the Unisys V410
system to move Name and Address information for Statement and Notices to a
common location. Support for the print reformat program shall continue until a
common location capability for name and address information for statements and
notices exists within the deposit and loan systems.
7.2 Xerox Laser Printer: FIserv agrees to support this equipment through the
Initial Term of this Agreement.
7.3 3270 Terminals: FIserv agrees to support this equipment through December 31,
1996. Support is defined as adding required fields and functions to keep systems
functional without screen redesigning.
8. ACQUISITION CONVERSION SUPPORT AND FEES.
FIserv's role in conversions pursuant to Contract Section 3.1(d) shall be one of
limited conversion support. "Limited Conversion Support" shall be defined as
whereby FIserv assists in pre-conversion calls, writes conversion file
specifications, produces conversion edits for review and verification by the
Client, and runs conversion jobs. The fee for such a conversion shall be $15,000
plus out-of-pocket expenses, if any, up to a fee maximum of $100,000. Support by
FIserv beyond those levels described above shall be invoiced separately at a
rate of $280 per person per day plus all out-of-pocket expenses as incurred by
FIserv.
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9. VOLUME INCREASE AND DECREASE CALCULATIONS.
9.1 Monthly Fee Increase Pursuant to Contract Section 3.1(d): The last sentence
in Contract Section 3.1(d) shall be deleted. The fee increase, if any, shall be
due in the month following conversion and shall be calculated in accordance with
Contract Section 3.1(c) taking into account the five percent (5%) growth
allowance and excluding any internal growth. Further, once the average
percentage difference is calculated, it shall be discounted according to the
following table:
If Average Percentage Increase Is It Will Be Discounted By
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Less than or equal to 25% 10%
Between 25% and 50% 15%
Between 50% and 75% 20%
Greater Than 75% 25%
9.2 For the purposes of the annual adjustment pursuant to Contract Section
3.1(c) in a year where a conversion has occurred, the converted volumes shall be
subtracted from the current year end volumes to determine internal volume
growth. The allowance to be applied shall be the amount remaining, if any, after
the calculation in Addendum Section 9.1. The increase, if any, from the annual
review shall be applied to the Fixed Monthly Fee in effect prior to a conversion
increase. The increase calculated in Addendum Section 9.1 shall then be added to
the resulting Fixed Monthly Fee along with any other previous adjustments. An
illustration of this provision is found in Exhibit C.
9.3 The volume increase calculations shall apply equally to volume decreases. In
other words, adjustments to the Fixed Monthly Fee for annual volume decreases
shall begin after the 5% allowance for decreases has been applied to the average
percentage difference by category. The resulting average percentage decrease
shall thereafter be discounted according to the percentages in Addendum Section
9.1. For example, if the average percentage difference was 20%, the 5% allowance
would be applied to arrive at the average percentage decrease of 15% before
discount. The discount would be 10% and the resulting discounted average
percentage decrease of 13.5% (15% less (.15 X .10)). In no event over the life
of the Agreement may the Fixed Monthly Fee be reduced by more than 25% of the
Fixed Monthly Fee as of the Effective Date.
10. TRAINING FEES AND MANUALS.
10.1 FIserv agrees to waive the standard fee for its regularly scheduled
application training classes held in Pittsburgh. The Client is responsible for
all out-of-pocket expense associated with its employees attending such classes.
This waiver is restricted to the first three (3) individuals attending each
application training class.
10.2 In the event the Client subscribes to a new service, FIserv shall not
charge the Client for the first two user manuals for such new service.
11. SALE OF FUSION BY FISERV.
In the event that FIserv, Inc. sells Fusion to a third party, the Client may
terminate this Agreement, without the payment of liquidated damages, by
notifying FIserv of its intent to do so within 90 days following such sale.
FIserv agrees that the Client may elect to be processed on FIserv's platform for
up to one (1) year from such sale.
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12. NOTICE AND LIQUIDATED DAMAGES FOR EARLY TERMINATION.
The notice requirement in Section 6.2 shall begin on the date FIserv receives
written notice of the Client's desire to terminate the Agreement after a
definitive written agreement has been signed between the acquirer and the
Client. The liquidated damages pursuant to Contract Section 6.2 shall be reduced
to $20,000 times the remaining months in the Initial Term or any renewal term.
13. ACQUISITION OF THE CLIENT BY A FISERV, INC, CLIENT.
In the event the Client is acquired by a FIserv, Inc. client and desires to
terminate this Agreement and convert from FIserv's Fusion Group to such other
FIserv, Inc. processing alternative, then the Client may terminate this
Agreement without the payment of liquidated damages; provided, however, that the
timing of the deconversion/conversion and transition costs willl be negotiated
between FIserv and the Client.
14. ACQUISITION OF A FISERV FUSION OR FISERV, INC. CLIENT.
In the event the Client acquires a financial institution whose Basic Services
are being processed by FIserv Fusion or other affiliate of FIserv, Inc., then
the Client may process after regulatory approval (in the case of a FIserv Fusion
client) or convert (in the case of other FIserv client) (collectively process
after regulatory approval and convert shall hereinafter be referred to as
"Transition") such an acquisition as an acquisition under this Agreement by
providing written notice to FIserv. In addition, if such an acquisition
Transition occurs within the last three (3) years of this Agreement, this
Agreement shall be automatically extended from the date of such Transition for
the longer of the length of the contract of the acquired financial institution
or three (3) years unless, in the case of an acquisition of a FIserv Fusion
client only, the Client elects to pay the liquidated damages of the acquired
bank. In the event the acquired financial institution is a FIserv Fusion client
is treated as an acquisition under this Section by the acquiring Client and the
Client elects to extend the Agreement pursuant to this Section, the acquired
financial institution may terminate its FIserv Fusion contract upon acquisition
without the payment of liquidated damages. In the event the acquired financial
institution is a FIserv, Inc. client other than with Fusion, FIserv shall use
good faith efforts to minimize the costs associated with the termination of
their data processing agreement.
15. FUNDS TRANSFER SECURITY SYSTEM.
FIserv agrees to license the Funds Transfer Security System ("FTSS") pursuant to
Exhibit F, which is attached hereto and hereby incorporates by reference. The
license and annual support services fees for FTSS shall be waived for up to 100
wires per day so long as the Client remains a client of FIserv's. In the event
the Client terminates this Agreement prior to the end of the Initial Term, the
Client shall pay to FIserv a license fee for FTSS equal to the unamortized
portion of the $30,000 license fee based on a 60 month amortization schedule
from the date of delivery of FTSS.
16. DISASTER RECOVERY PLAN.
FIserv commits that it has disaster recovery plan and will continue to have such
a plan through the Initial Term of this Agreement. FIserv agrees that it will
execute its plan in the event of a disaster and that it shall use its best
efforts, together with third party efforts, to minimize the impact to its
clients. Further, there shall be no extra charge for FIserv's services during
the disaster.
17. PRODUCT COMMITMENTS.
FIserv agrees to provide the product commitments on Attachment A, which is
attached hereto and hereby incorporated by reference. FIserv agrees to provide
each commitment to the Client by the dates
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indicated in Attachment A. In the event FIserv fails to meet a specific product
commitment encoded with an "A" after a 90 day cure period, FIserv shall credit
the Client $1,000 per month until cured. In the event FIserv fails to meet a
specific product commitment encoded with an "B" after a 90 day cure period,
FIserv shall credit the Client $500 per month until cured.
18. OTHER COMMITMENTS.
18.1 In the event FIserv offers a replacement for a Fusion Basic Service during
the Initial Term of this Agreement, FIserv agrees that it shall not force the
Client to convert to such replacement service.
18.2 FIserv commits that it's responses to the United Request for Proposal dated
January 25, 1994 were to the best of its knowledge truthful. The Client
acknowledges that FIserv's responses were subject to FIserv's interpretation of
the questions.
18.3 The phrase "materially affect the integrity of such service" in Contract
Section 5.4 shall be defined as a condition whereby the economical provision of
the service is substantially affected.
18.4 An additional warranty shall be added to Contract Section 11 as follows:
"FIserv warrants that the services shall substantially perform according to
their documentation."
18.5 Contract Section 12 shall be deleted.
18.6 Contract Section 15.1 shall be modified by striking the word and number
"six (6)" and replacing it with the word and number "twelve (12)".
18.7 Contract Section 17 shall be modified by striking the word and number
"one (1)" and replacing it with the word and number "two (2)".
18.8 The second sentence in Contract Section 19.1 shall be deleted and replaced
by the following: "Neither party may assign its rights or delegate its duties in
this Agreement without the prior written consent of the other party, such
consent not to be unreasonably withheld or delayed. Notwithstanding the
foregoing, a party may freely transfer this Agreement to its affiliate so long
as such affiliate is not a direct competitor of the other party."
19. EARLY TERMINATION FOR REASONS OTHER THAN ACQUISITION.
In the event (i) the Client expresses a desire in writing to terminate this
Agreement prior to the end of the Initial Term, (ii) FIserv has not committed an
Event of Default hereunder, (iii) the Client has paid to FIserv all fees due
under this Agreement, and (v) the Client provides FIserv with one (1) year's
prior written notice; the parties agree as follows:
(a) The Client shall pay the fees normally due to FIserv hereunder in each
subsequent month until the Client is deconverted from FIserv's systems. Fees for
services not included in the Fixed Monthly Fee shall be FIserv's then standard
fees as may be then in effect, and notwithstanding any limits upon fee
increases or total fees provided for in this Agreement.
(b) In addition, prior to the Client's deconversion of the first Basic Service
of the first affiliate from FIserv's systems, the Client shall pay to FIserv as
liquidated damages an amount equal to seventy-five percent of the Fixed Monthly
Fee in effect prior to the deconversion of such Basic Service multiplied by the
number of remaining months in the Initial Term, or any renewal term, from the
final deconversion, plus, if applicable, (1) any amounts representing
unamortized or undepreciated assets purchased or incurred by FIserv solely on
behalf of the Client, and (2) any shut down expenses associated with a
facilities management arrangement. In the event the Client's final deconversion
date occurs after the projected final deconversion date, FIserv shall credit the
Client's invoice for the
-8-
liquidated damages amount applicable to such fees for such month; provided
however, FIserv has been paid such liquidated damages. The parties agree that
these damage provisions are reasonable in light of all present and predictable
circumstances.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, to be
effective as of the first date written above.
FIserv CIR, Inc. United Bankshares, Inc.
By: By:
Title: Title:
-9-
Attachment A
UNITED BANKSHARES, INC. EDP ISSUES
September 1, 1994
CODE SYSTEM ISSUE RESPONSE
B Demand Deposit Moving interest from DD to DD FIserv's strategic direction is to provide two core deposit
systems. There will be a Transaction System (DD and Statement
Savings products) and a Time System (TD and Passbook products). To
accomplish this goal, increased functionality will be added to
both the DD and TD systems. The ability to move interest within
the DD system is a scheduled project with a targeted completion
date of September 1995.
A Demand Deposit Moving Savings into DD As stated above, FIserv's direction is to collapse Statement
Savings products into Demand and Passbook accounts into Time
Deposits. Over the next 18 to 24 months the features needed to
support savings instruments will be incorporated into both
systems. FIserv anticipates that the project will be completed by
December 1995. However, during this time period several additional
features will be made available outlined below.
. DD interest payment frequencies - target date - June 30, 1995
. DD service charge frequencies - target date - June 30, 1995
. DD disbursement capabilities - target date - September 1995
. TD multiple monetary capabilities - target date - June 30, 1995
. TD ACH interface - target date - September 1995
. TD ATM interface - target date - September 1995
A Demand Deposit Reducing the number of inquiry and To provide this capability, the teller cashed check transaction
transactions needed to cash a check. logic must be added at the Administrative terminal level. FIserv
Going from a 2 to 3 inquiry per realizes the importance of this issue to United Bankshares and
transaction to 1. will provide the required enhancement by March 31, 1995.
B Demand Deposit Present DD system cannot pay quarterly The DD system will be enhanced to support flexible interest
interest on SDA or annually for payment frequencies in June 1995. Club processing will also be
Christmas Club. Timing of Savings added to either DD or TD. A final decision regarding the
to DD. residence of this feature will be made in the near term. A target
date of September 1995 has been established for club processing.
Page 1
Attachment A
UNITED BANKSHARES, INC. EDP ISSUES
September 1, 1994
CODE SYSTEM ISSUE RESPONSE
B Demand Deposit/ Same day balance for movement During the fourth quarter of 1994, FIserv will provide United
Savings (sweep) of money from DD/Savings. Bankshares, Inc. with its own posting file. Once this is
accomplished, the DD posting will run after the Savings posting is
complete which will result in same day balances for sweeps.
B Demand Deposit ATM switch on new account input This feature is currently available in the Savings application.
Demand Deposit will add this feature in conjunction with the new
Common Account Screen project which is scheduled to be completed
by the end of the first quarter 1995.
Demand Deposit ATM switch print on closed account Same as above.
(close out ATM on network).
Demand Deposit Zero Balance Report - Service FIserv recognizes the value of this request and will schedule the
Charge number and waiver code. enhancement in a maintenance release during 1995.
All Deposits Time requirement for purging closed FIserv will work with United to develop special file maintenance
accounts. programs on future acquisitions to close accounts in a more rapid
fashion. We believe this procedure will eliminate the need to
modify the current closing process.
B Demand Deposit Maintenance of overdraft history The handling of account maintenance in a more "user friendly"
difficult, time consuming and fashion is being addressed in the Deposit strategic plan. The
inefficient. tentative target date for implementation is late 1995.
B Demand Deposit Advertising Message by Office The Customer Reporting System will include this feature in the
December 1994 release.
B Demand Deposit Modify sweep - Sweep out exact FIserv will provide this enhancement by mid 1995.
amount and overdraft protection
on account.
Demand Deposit DD to DD drafts at different times This project will be activated if the modified sweep enhancement
to include bi-weekly. mentioned above does not satisfy United's needs.
B Demand Deposit 12 month average ledger and FIserv will provide this feature during the first quarter of 1995.
collected balances for credit
inquiry.
B Demand Deposit Expand flag code to six digits FIserv will provide this capability during the fourth quarter of
1995.
Page 2
Attachment A
UNITED BANKSHARES, INC. EDP ISSUES
September 1, 1994
CODE SYSTEM ISSUE RESPONSE
Demand Deposit Enhance DDHIST screen to count and This information is available within DD. It is located on the DD
display number of Unstatemented Regular Items screen. The field names are Debits and Credits
items. CTD. By adding the fields together, it will provide the number of
unstatemented items.
Demand Deposit Number of Service charge routines The regular service fee and EFT routine numbers have been expanded
to four digits within the DD system. This expansion allows United
to establish as many as 9,999 regular and EFT routines.
Demand Deposit Market Pricing Market Pricing capability was incorporated into the DD system in
June.
Demand Deposit Freeze - description for reason for FIserv will provide this feature during the fourth quarter of
Freeze 1995.
B Savings Service charge limitation - System This capability will be provided when Statement Savings is
does not provide the capability to collapsed into Demand Deposits and Passbook Savings is combined
waive a monthly maintenance fee and with Time Deposits. This feature is scheduled to be available in
continue to charge the account for September 1995.
transaction fees.
Time Deposit TD investment type for rate index, As mentioned during the RUG meeting, this request would require
separate to be independent in their massive changes to the Time Deposit system and is not in the
function, more flexibility and strategic direction of this product. FIserv will provide United
market pricing with a document outlining other options, such as utilizing a
regional code within Informent, to produce the necessary cross-
bank application reports This document will be sent to United
prior to September 30, 1994.
B Time Deposit Custom TD notices This feature will be provided within the Custom Reporting System.
It is scheduled to be completed by October 1995.
Time Deposit Sort Report 30 by Office (TD) for This feature is available today. United has two office sorts to
budget choose from: Alpha Key by Office or Account Number by Office. The
change can be made by the TDORF screen.
B All Deposits Suspense on-line batch This feature is included as part of the Deposit strategy to
improve needed integration. FIserv will provide this feature by
year end 1995.
Account Analysis Rolling 12 month history on AA as The rolling 12 month history is available on-line at no additional
part of cost cost. It can be reviewed by accessing the AADHIST screen.
Page 3
Attachment A
UNITED BANKSHARES, INC. EDP ISSUES
September 1, 1994
CODE SYSTEM ISSUE RESPONSE
B Account Analysis AA statement preview to catch This enhancement is in the tactical plan and is scheduled to be
problems and avoid them. completed during the third quarter of 1995.
Time Deposit Way to determine source of outage FIserv will work with Barb Waldon to explore various reporting
when balancing interest expense. options to achieve this objective. A new report unique to United's
needs is under development. The report will be available for
United's review by September 30, 1994.
ACH ACH Balancing - grouping totals so FIserv will develop a special print recap report which will
you don't have to go through extra eliminate the need to print large volumes of reports during the
report. ACH PEP Plus balancing ACH balancing process. Donna Terrell will provide FIserv with the
requires going through a stack of specific report requirements and it is anticipated that the report
reports to retrieve totals needed. will be available prior to December 31, 1994.
ALL Name/Address formatted common FIserv will provide resources to modify the print programs on the
location. Xerox printer to achieve the common Name and Address location
on Statements and most Notices. This is a short term solution.
FIserv's strategic direction is to provide a common name and
address location from the application systems as opposed to
modifying print programs.
BancSource Backdating of rate and indexes. Rate and Indexes can be backdated or future dated. However, loans
that have already gone through a rate change will not recalculate.
This is an architectural limitation of the system.
B BancSource 5 Digit Officer Code Work on this enhancement can not begin until the client migration
project is completed in late 1995 or early 1996. As an
intermediate step, BancSource personnel will work with the
InformEnt team to provide the required reporting through the
utilization of both the Officer Code and Officer 2 fields or the
councilor code.
B BancSource Insurance on Balloon Loans Insurance remittance for Balloon Loans is performed manually. As
per Sandy Carr, United wants to continue this process. The main
concern is the ability to get accurate "payoffs" on loans with
balloon insurance. This concern will be eliminated by creating an
new routine to establish the normal insurance and balloon
insurance at the time of set up. This capability will be available
prior to United's conversion to the BancSource system.
BancSource Interest paid last year on inquiry This information is available on the second display screen and on
screen. the change miscellaneous screen.
Page 4
Attachment A
UNITED BANKSHARES, INC. EDP ISSUES
September 1, 1994
CODE SYSTEM ISSUE RESPONSE
BancSource Same day transfer posting During the fourth quarter of
1994, FIserv will provide
United with its own posting
File. This feature will enable
overdrafts and sweep transactions
to post prior to bringing the
files on line the next morning.
These transactions are posted
after the nightly posting but
prior to bringing the files on
line thereby limiting the risk
of funds being withdrawn prior
to satisfying the overdraft or sweep.
B BancSource Provide necessary FIserv will program Schedule R1
information to into the BancSource system during
complete Schedule R1 the first quarter of 1995.
B BanSource Cannot put on new FIserv will incorporate this
floor plan loan the enhancement into the 95.03
day rate indexes change. release for BancSource which
is scheduled for implementation
next June.
BancSource Multiple Tapes - 2 The BancSource system has the
coupon tapes (week) 2 capability of generating two coupon
insurance tapes (month) tapes per week and two insurance
tapes per month. Additionally,
the fees for the tapes are
included in the fixed monthly fee.
CL Plus Recovery charge off FIserv is a member of the Shaw
processing - interface. advisory board that provides
input into the prioritization
of system enhancements. All
members of this board get one
vote into the prioritization process.
Although overall market need will
determine the priority assigned to this
project, FIserv will give this request the
highest priority when it presents 1995
enhancement requests to Shaw.
CL Plus Insurance not Same as above
available on commercial
loans (pay off)
CL Plus Scots in conversion Scots information will be migrated
/ migration to CL Plus during the migration
process for commercial loan related
information.
CL Plus Guarantors / Endorsers Can be done on CRF. However,
that have no other in order to have financial
relationship with bank. statements produced, there must
be a dummy customer set up on
CL Plus.
B CL Plus Printing of paid The automatic generation of the
history on Commercial activity portion of the paid history
Loans. will be available during early first
quarter 1995. A request will be added
to the project inventory list to provide
static information on the paid history
form during the third quarter of 1995.
CL Plus Cannot future date a CL Plus does have a procedure to satisfy
loan for change on rate this request. However, the process is not
(fixed to variable interest totally automated at this time.
segment)
Attachment A
UNITED BANKSHARES, INC. EDP ISSUES
September 1, 1994
CODE SYSTEM ISSUE RESPONSE
B CL Plus Interest paid last year on inquiry screen CL Plus will add this project to the inventory list. FIserv
anticipates this feature will be available during the first
quarter of 1995.
B CL Plus Tracking of policy exceptions Examination Five credit policy codes are being moved to a 10 position user
Demand (Regulatory) field within CL Plus. These fields are currently being redefined
within DAS to five "2" position codes. DAS will then be able to
accommodate exception reporting similar to the features that was
available in the Classic CL system. The DAS reporting feature will
be available no later than October 31, 1994.
B Mortgage/ Definition on HMDA and CRA Reporting FIserv will utilize a stand alone system to produce BancSource
Regulatory Mortgage Disclosure information that is in compliance with HMDA
regulations. This stand alone system will be available by
December 31, 1994. Additionally, FIserv will commit to using the
On-Line Collection System or an automated down load to a PC
package to facilitate the production of denial letters. FIserv
will evaluate these options over the next few months and will
communicate its approach to the production of denial letters by
December 31, 1994.
B Safe Deposit Late charge on Safe Deposit Box The current Safe Deposit Box product does not include the ability
to assess late charges. During 1994, enhancements are being made
to the system to improve delinquency tracking and reporting.
FIserv will provide late charge capabilities by December 1995.
General Ledger Account number by page on GL on FIserv will provide this enhancement prior to year end 1994.
Transaction Journal
General Ledger Allow modeling of pointers between banks Only modeling of General Ledger lines across banks is possible.
This is a MSA system limitation.
CRF CRF - field to identify who is requesting Current CRF maintenance screens require the operator to enter a
change by employee number requester number (4 digits). This requester number is then
displayed on the CRF Customer File Transaction Report.
Page 6
Attachment A
UNITED BANKSHARES, INC.EDP ISSUES
September 1, 1994
CODE SYSTEM ISSUE RESPONSE
Atchley Large currency transaction reporting Generally, the Large Currency Reporting System is available for
United's use. To facilitate aggregation, an interface between
the Large Currency Transaction System and POD will be delivered
in September of 1994. This service is also included in United's
bundled fees.
Fixed Assets IPS up load and fixed assets. Automated Until XCOM, Fixed Asset General Ledger transactions can be
conversion fixed asset automated. transmitted to FIserv for posting. The transactions are in RJE
format. Automated conversion options are available through IPS
and FIserv.
Inquiry Navigation between applications on Inquiry. FIserv will establish a "Terminal Owning Region" for United
Bankshares in September, 1994. A Terminal Owning Region is
deployed to provide for the automatic routing of transactions
between various on-line sessions thereby improving navigation
between systems. Employees must still sign on to various
systems when the work day is begun to establish security rights.
After initial sign-on, this added feature will eliminate the
need to sign off one system and sign on to another thereby
significantly reducing the time and key strokes required to
perform ones work.
RMDS Allows five versions of select reports on FIserv will accommodate this request immediately. Mary Welsh
RMDS. Approximately 5% of file. will initiate additional retention procedures as soon as she
receives the list of reports form Drew.
Platform Support our present document prep (Bankers FIserv's approved platform vendors (Unisys, Systeme, and
Automation Systems). Culverin) are developing partnerships with Bankers Systems to
provide document printing solutions as part of their total
platform offering (Deposits, Loans, Teller). This "partnership
direction" will enable our clients to have a full array of
platform options regardless of the vendor they choose.
Additionally, because of the Partnership arrangement, FIserv
does not believe there is a market demand to provide a stand
alone interface to Bankers Systems. FIserv recently asked its
customer base to complete a vendor report card. If the report
card shows that several clients would like to have a direct
interface, the development fee for the project could be shared
equally among the clients. The development fee for the FIserv
portion of the interface would be $30,000.00.
Page 7
Attachment A
UNITED BANKSHARES,INC.EDP ISSUES
September 1, 1994
CODE SYSTEM ISSUE RESPONSE
InformEnt Development Flexibility FIserv will work with United to
develop a cross reference
matrix which will match officer
codes for the sales tracking
report
Overnight Provide automated method to FIserv will modify the Overnight
Investments handle Repo's Investment product to accommodate
United's REPO offering. The
necessary screen and processing
changes will be available by
November 30, 1994.
Page 8
EXHIBIT A
---------
1) BASIC SERVICES
--------------
Demand Deposits
Savings
Time Deposits
Retirement Planning
Retail Loans
Commercial Loans
General Ledger
Central Reference File
Descriptions of each of the Basic Services may be found in the Service
Reference Manuals. PURSUANT TO SECTION 11 HEREOF, THESE DESCRIPTIONS SHAll NOT
CONSTITUTE WARRANTIES OF ANY KIND.
2) ANCILLARY SERVICES
------------------
Ancillary Services shall be those services included in Exhibit B that are not
listed in Paragraph 1 above as Basic Services.
EXHIBIT B
---------
Fee Schedule
FIserv/Fusion Fee Schedule
Table of Contents
Account Analysis 1
Account Reconcilement 1
Automated Clearinghouse 1
Application Reference Manuals 1
Application Repost 1
Audit Confirmation Reports 1
Automated Returns 2
Balance File Transmission to Foreign Switch 2
Bank Processing Fee Minimum 2
Bulk Filing 2
Central Marketing File 2
Central Reference File 2
Combined Interest 2
Commercial Loans 2
Cl Plus 2
Consulting Services 3
Consumer Loans 3
Contingency Planning 3
CRISP Interface 3
Custom Services 3
Data Access Service (DAS) 4
Deconversion 4
Demand Deposits 4
Escrow Management 5
General ledger 5
Host/RJE Site Support 5
Hot Site Support 5
Large Currency Reporting 6
Late Payment Interest Charge 6
Maturity Analysis Reporting (MARS) 6
Microfiche 6
Microlink 6
Mortgage Loans 6
On-Line Collections 6
PC Interface Support 6
PC Screens 6
Platform Automation Support 6
Presentment items 6
Printing 6
Reports Distributor 7
Report Regeneration 7
Retail Loans 7
Retirement Planning 7
RMDS 7
Safe Deposit Box Billing 7
Savings 7
Securities/Collateral/Officer Tracking 8
Special Reports 8
Tape Creation 8
Telephone Banking 8
Teller Support 8
Third Party Audit Review 8
Time Deposits 8
Training 8
FISERV/FUSION FEE SCHEDULE
SYSTEM OR SERVICE PRICE DESCRIPTION/COMMENTS
------------------- ----- --------------------
B ACCOUNT ANALYSIS $0.30 Per account/month for first 1,000
$0.10 Per account/month for all accounts over 1,000
$300.00 Minimum/month
ACCOUNT RECONCILEMENT
Type A (Paid Only Listing) $0.0200 Per item/month first 100,000 items
0.0175 Per item/month for next 100,000 Items
0.0150 Per item/month for next 100,000 Items
0.0125 Per item/month for all Items over 300,000
Type B (Consolidated Listing) $0.0250 Per item/month for first 100,000 Items
0.0225 Per item/month for next 100,000 Items
0.0200 Per item/month for next 100,000 Items
0.0175 Per item/month for all items over 300,000
$100.00 Minimum fee/month (Type A plus Type B)
History Retention $100.00 Per month
AUTOMATED CLEARINGHOUSE
B Receiving Transactions $0.07 Per item/month
$50.00 Minimum/month
Origination Transactions $0.07 Per item/month
Company Processing $25.00 Per company/month
Notices $0.0200 Per notice/month
Tape Conversion $750.00 Per conversion
ATM/POS File Processing $100.00 Per bank, (one time charge)
Daily Transmissions (From ATM $100.00 Per month/transmission site
switches and/or Clearing Houses)
Automated Returns $0.50 Per item
Notification of change $0.02 Per item
ACH Direct Line Receiving from $5.00 Per file/day
Fed $400.00 Maximum/month
ACH Direct Line Origination to Fed $7.50 Per file/day/month
Transmission File Maintenance $1,000 Per routine request
APPLICATION REFERENCE MANUAlS
First Two Sets No Charge
Additional Sets $50.00 Per Application Set
APPLICATION REPOST
Combined Interest Demand $2,000.00 Per repost requested / completed
Deposit or Retirement Planning
All Other Applications $1,000.00 Per repost requested / completed
AUDIT CONFIRMATION REPORTS
Set-up Charge $35.00 Per request
More Than 10% Confirmed $0.30 Per positive confirmation
0.25 Per negative confirmation
Less than 10% confirmed $0.02 Per account on file/request
Per request maximum $500.00 Per request/month
FISERV/FUSION FEE SCHEDULE
SYSTEM OR SERVICE PRICE DESCRIPTION/COMMENTS
------------------- ----- --------------------
B AUTOMATED RETURNS
Inquiry only $200.00 Per month
PETS Interface $300.00 Per month/bank
600.00 Maximum/relationship
B BALANCE FILE TRANSMISSION TO $250.00 Per application/month
FOREIGN SWITCH
BANK PROCESSING FEE MINIMUM $5,000.00 Per month
B BULK FILING
Base Fee $175.00 Per month per bank
Per Transaction $0.002 Per DD transaction
CENTRAL MARKETING FILE
B Standard Build $100.00 Monthly or quarterly file build - standard options
(primary holders and open accounts)
Special Options Build $250.00 Per run
Off-Cycle Build $500.00 Per run (other than scheduled cycle)
Peer Group Reporting $220.00 Annual peer group reports
CENTRAL REFERENCE FILE
B CRF Accounts (Alpha-Keys) $.110 Per account/month for first 50,000 accounts
.090 Per account/month for next 50,000 accounts
.075 per account/month for next 100,00 accounts
.060 Per account/month for all accounts over 200,000
Address Labels/ Index Cards:
- Printed Remotely $10.00 Per 1,000 accounts listed
- Printed At FIserv 25.00 Per 1,000 accounts listed
50.00 Per request minimum
B 9-Digit Zip Code (ZIP+4) $7.50 Per 1,000 records/run
CRF Miscellaneous Accounts $.025 Per account/month
(Non-FIserv Applications) 25.00 Minimum/month
500.00 Maximum/month
Alpha-Key Merge $350.00 Per request/bank
COMBINED INTEREST
B Per Account (1099s and 1098s) $0.16 Per account/year
B W-8/W-9 $0.05 Per notice produced
B On-line Corrections $1.50 Per correction/month
B-Notices $300.00 Report produced from tape
$500.00 Data entry module
$1,000.00 Full tape processing
B COMMERCIAL LOANS
Active Accounts $0.77 Per active account/month
275.00 Minimum on active accounts
Inactive Account $0.10 Per inactive account/month
B CL PLUS $2.00 Per note/month
FISERV/FUSION FEE SCHEDULE
SYSTEM OR SERVICE PRICE DESCRIPTION/COMMENTS
------------------- ----- --------------------
CONSULTING SERVICES Fee quoted/request
CONSUMER LOANS
B Open Accounts $0.43 Per account/month for first 10,000 accounts
0.39 Per account/month for next 10,000 accounts
0.35 Per account/month for next 10,000 accounts
0.31 Per loan/month over 30,000
$650.00 Minimum fee/month
B Closed Accounts $0.05 Per closed account/month
B Dealer Reserve Reporting $100.00 Flat fee/month
B Interest Statements $0.10 Per annual statement
100.00 Minimum statement fee
Christmas Extension Notice $150 Base fee/execution
0.05 Per account
Paid-out Inquiry $10.00 0 - 1,500 closed loans/month
15.00 1,501-5,000 closed loans/month
25.00 5,001 - 8,000 closed loans/month
50.00 8,501 - 15,000 closed loans/month
75.00 15,001 - 25,000 closed loans/month
150.00 25,001 -50,000 closed loans/month
250.00 50,001-100,000 closed loans/month
625.00 100,001-250,000 closed loans/month
1250.00 250,001-500,000 closed loans/month
1875.00 500,001-750,000 closed loans/month
Insurance Tape Creation $200.00 Per tape/vendor/application
B Credit Bureau Reporting $50.00 Per credit bureau/month
B CONTINGENCY PLANNING $750.00 Per bank/year for assets $0 to $100 mm
1,500.00 Per bank/year for assets $101 to $200mm
2.250.00 Per bank/year for assets $201 to $300mm
3,000.00 Per bank/year for assets $301 to $400mm
3,750.00 Per bank/year for assets over $400mm
6,000.00 Maximum/relationship/year
CRISP INTERFACE $400.00 Per month for first user bank
300.00 Per month for each additional user bank
CUSTOM INTERFACE
Includes (but not limited to) $85.00 Per hour
custom report and file creation, file 250.00 Minimum per request/day (plus out-of-pocket expense
/ mass maintenance, file fixes,
loan routine requests, personnel 110.00 Per hour for urgent programming requests
assistance
$150.00 Base fee/mass maintenance request
50.00 Per report generated from request
100.00 Incremental for CRF access on report
25.00 Per special report printed by FIserv
FISERV/FUSION FEE SCHEDULE
SYSTEM OR SERVICE PRICE DESCRIPTION/COMMENTS
------------------- ----- --------------------
DATA ACCESS SERVICE (DAS)
Per Record/Report $2.00 Per 1,000 records on reports not requiring CRF
2.50 Per 1,000 records on reports requiring CRF (CRF
available only on weekends)
2.50 label production rate per 1,000 records
1.20 Factor applied to download requests
(Records equal sum of read plus written/printed)
$40.00 Minimum/report
250.00 Maximum/report
Storage $1.00 Per month for each request stored for re-execution
Weekend Discounts 30% Discount applied to first $200 in weekend reports
40% Discount applied to next $300
50% Discount applied to next $500
60% Discount applied to all over $1,000
DECONVERSION $5,000.00 Base fee per bank
200.00 Per tape produced
250.00 For production of wipe-off DD statements
DEMAND DEPOSIT
B Transactions Processed $0.018 Per transaction/month for first 300,000
0.017 Per transaction/month for next 300,000
0.016 Per transaction/month for next 400,000
0.015 Per transaction/month for next 400,000
0.014 Per transaction/month for next 400,000
0.013 Per transaction over 1,800,000
$450.00 Minimum/month
B Account Maintenance $0.075 Per account/month
B Interest Bearing Accounts $0.145 Per open account/month
75.00 Minimum/month
0.05 Per closed account/month
B Draft Items $0.05 Per transaction/month
0.02 Per notice/month
B Automatic Transfers $0.05 Per transaction/month
50.00 Minimum transaction fee/month
0.02 Per notice/month
B Sweep Transactions $0.05 Per transaction/month
50.00 Minimum transaction fee/month
0.02 Per notice/month
B History retention:
Seven Day $100.00 Per month
Extended $100.00 Per month, incremental to seven day fee
B Combined Balance Service Charge $75.00 Per month
Kiting Suspect Report $50.00 Per month
Mutual Funds Sweep $400.00 Per month/bank
800.00 Maximum/holding company
B Statement Zip Code Sort $0.01 Per zip code sorted statement
Service Charge Routine Setup $100.00 Per routine
Service Charge Routine Change $25.00 Per field changed
100.00 Maximum fee per routine changed
FISERV/FUSION FEE SCHEDULE
SYSTEM OR SERVICE PRICE DESCRIPTION/COMMENTS
------------------- ----- --------------------
DEMAND DEPOSIT (CONT.)
Accrual Adjustment Program $200.00 Per request first day plus $50 each additional day after
first day
Account Number Production $25.00 Set-up fee per request
5.00 Per 1,000 account numbers produced
Check Processing Descending $2000.00 Per bank charge
Order 4000.00 Maximum/relationship
ESCROW MANAGEMENT
Set-up $5000.00 Per bank
10000.00 Per relationship maximum
Rent Security 100.00 Per month
Principal / Escrow 75.00 Per month
B IOLA Reporting 50.00 Per month
200.00 Per month for all three modules
GENERAl LEDGER
B Base Fee $400.00 Per month
B Account Centers $0.235 Per account/month for first 1,000 accounts
0.155 Per account/month for next 1,000 accounts
0.105 Per account/month for all accounts over 2,000
B Transactions $0.025 Per transaction/month for first 5,000 accounts
0.014 Per transaction/month for next 5,000 accounts
0.006 Per transaction/month for all accounts over 10,000
B Budget:
Current and Next Year Module $50.00 Per month
Working Year Optional Selection 25.00 Per month
Prior Year Optional Selection 25.00 Per month
B Application Interface $25.00 Per application interfaced/month
B Recurring Entries $10.00 Per batch/month
B Daily Custom Reports $100.00 Per report/month (first report free)
B Transaction Journal $250 Per journal (quarterly frequency)
Interface Custom Reports:
Report Set-up $25.00 Per report set-up requested
Report Generation 100.00 Per report generated/month first report free)
Interface extract $100.00 Per application/month
B On-Line System:
Set-up $1,000.00 One-time for set-up
Monthly Budget 100.00 Per month for current and next year module
25.00 Per month for working year optional selection
25.00 Per month for prior year optional selection
Transaction History $500.00 One-time for set-up (waived If set-up at same time
as on-line set-up)
50.00 Per month for 14 day history
150.00 Per month for 45 day history
B HOST/RJE SITE SUPPORT $100.00 Per month/site
HOT SITE SUPPORT $100.00 Per month/site
FISERV/FUSION FEE SCHEDULE
SYSTEM OR SERVICE PRICE DESCRIPTION/COMMENTS
------------------ ----- --------------------
B LARGE CURRENCY Reporting
Set-up $3,000.00 Per bank
$10,000.00 Per holding company
Support $390.00 Per Bank
LATE PAYMENT INTEREST CHARGE 1% Of outstanding balance aged over 30 days
B MATURITY ANALYSIS REPORTING
(MARS)
Monthly Reporting $350.00 Per month
Quarterly Reporting 400.00 Per quarter
Downline Loading 50.00 Per month or quarter
MARSFlEX Sorting Criteria 50.00 Per report (first report free)
MICROFICHE
$0.95 Per original produced
0.17 Per copy produced
1.00 Hardcopy per frame requested
B MICROLINK
$30.00 Base fee/month
7.50 Per access
B MORTGAGE LOANS
Accounts $0.73 Per account/month
250.00 Minimum/month
Escrow Analysis Statement $0.10 Per statement
Serviced loans $0.10 Per account/month
$150.00 Minimum/month
B ON-LINE COLLECTIONS $0.60 Per active account/month
0.11 Per inactive account/month
PC INTERFACE SUPPORT $100.00 Per month, includes support for PC Services Package,
Simware and/or XCOM
PC SCREENS $300.00 Per software copy if 1 to 10 licensed
290.00 Per software copy if 11 to 201 licensed
280.00 Per software copy if 21 to 30 licensed
270.00 Per software copy if 31 to 40 licensed
260.00 Per software copy if over 40 licensed
Client responsible for 18% annual maintenance fee.
License fees exclude customization and consulting.
PLATFORM AUTOMATION SUPPORT
Bunker/LSC Runtime $50.00 Per month for first 5 controllers
25.00 Per month for next 10 controllers
No charge for controllers in excess of 15
All Other Vendor Systems $100.00 Per month
B PRESENTMENT ITEMS
$0.25 Per account/month for first 1,000 accounts
0.05 Per account/month for accounts over 1,000
200.00 Minimum/month
PRINTING $100.00 Per report available on microfiche or per request
2.50 Per savings account statement printed
FISERV/FUSION FEE SCHEDULE
SYSTEM OR SERVICE PRICE DESCRIPTION/COMMENTS
----------------- ----- --------------------
REPORTS DISTRIBUTOR $25.00 Per designated terminal/month
$500.00 Maximum/month
REPORT REGENERATION $25.00 Per request/month (first two requests free)
RETAIL LOANS
B Open Accounts $0.63 Per account/month for first 5,000 accounts
0.58 Per account/month for next 10,000 accounts
0.53 Per account/month for next 20,000 accounts
0.48 Per account/month for next 25,000 accounts
0.45 Per account/month over 60,000 accounts
B Closed Accounts $1,000.00 Minimum fee/month
B Loan Interest Statements:
Payoff statements $0.10 Per statement/month
Annual statements 0.10 Per statement
100.00 Minimum fee for annual statements
B CREDIT BUREAU REPORTING $50.00 Per Credit Bureau/month
Insurance Tape Creation $200.00 Per tape/vendor/application
Christmas Extension Notice $150 Base fee per execution
0.05 Per account
RETIREMENT PLANNING
B Account Processing/Reporting $0.41 Per account/month
200.00 Minimum/month
B Statements $0.10 Per statement /month (annual or office)
B W-2p, 1099R and 5498 $0.10 Per item/month
File Fix $500.00 Per request necessitated by client not verifying rate
changes
B RMDS $250.00 Monthly for 1 to 5 user IDS
375.00 Monthly for 6 to 10 user lDs
525.00 Monthly for 11 to 20 user IDs
650.00 Monthly for 21 to 40 user IDs
775.00 Monthly for over 40 user IDS
B SAFE DEPOSIT BOX BILLING
$0.05 Per account/month for first 4,000 accounts
0.04 Per account/month for next 4,000 accounts
0.03 Per account/month for all accounts over 8,000
$100.00 Minimum/month
SAVINGS
B Open Accounts $0.150 Per account/month for first 20,000 accounts
0.145 Per account/month for next 20,000 accounts
0.140 Per account/month for next 20,000 accounts
0.135 Per account/month for next 20,000 accounts
0.130 Per account/month for next 20,000 accounts
0.125 Per account/month for all amounts over 100,000
250.00 Minimum/month
B Closed Accounts $0.05 Per account/month
B Draft Items $0.05 Per transaction/month
0.02 Per notice/month
FISERV/FUSION FEE SCHEDULE
SYSTEM OR SERVICE PRICE DESCRIPTION/COMMENTS
----------------- ----- --------------------
SAVINGS (CONT.)
B History Retention $100.00 Per month
B Statement Zip Code Sort $0.01 Per zip code sorted statement
Service Charge Routine Setup $100.00 Per routine
Service Charge Routine Change $25.00 Per field changed
100.00 Maximum fee per routine changed
Accrual Adjustment Program $200.00 Per request first day plus $50 each additional day
after first day
Tape for Coupon Book Production $300.00 Per request ($200 for tape, special report.
$50 for $50 for processing)
B SECURITIES/COLLATERAl/OFFICER
TRACKING
$0.30 Per priced item/month
0.10 Per unpriced item/month
25.00 Minimum/month
SPECIAL REPORTS $50.00 Applies to any report which is not produced in the
normal processing flow but which has previously
been programmed by FIserv. Additional fees
associated with the creation and generation of new
special reports are described under "Custom
Services".
TAPE CREATION $200.00 Per physical tape produced
TELEPHONE BANKING
Bill Payment Accounts $1.00 Per account/month
Non-Bill Payment Accounts 0.05 Per account/month
250.00 Minimum account processing/month
By Line Telephone Banking $400.00 Per month - One (1) port rented
700.00 Per month - Two (2) ports rented
900.00 Per month - Three (3) ports rented
1,100.00 Per month - Four (4) port rented
Fee excludes costs of 800 number
TELLER SUPPORT
Inquiry $225.00 Per month
Datacapture/Truncation 125.00 Per month (additional to inquiry support)
B THIRD PARTY, AUDIT REVIEW $350.00 Per original
$35.00 Per copy
TIME DEPOSITS
B Open Accounts $0.26 Per account/month for first 20,000 accounts
0.24 Per account/month for accounts over 20,000
175.00 Minimum/month
B Closed Accounts $0.05 Per account/month
B History Retention $100.00 Per month
B Statement Zip Code Sort $0.01 Per zip code sorted statement
Check Printing $0.15 Per check printed by FIserv
TRAINING Quoted upon request
EXHIBIT C
---------
Volume Categories: Volumes:
Demand Deposit Transactions
Open Deposit Accounts (Demand, Savings and Time)
Open Loan Accounts (Retail, Commercial)
The First Calculation: Determine Acquisition Increase to the $100 Fixed Monthly
- ---------------------
Fee.
Prior Year End Volumes
Oct Nov Dec Avg Converted Volumes Percentage Increase
DD Trans 300 350 325 325 50 15.4%
Deposit Accts 50 60 55 55 10 18.2%
Loan Accts 10 10 10 10 2 20%
Average Percentage Increase (15.4+18.2+20)/3 = 17.9%
Less Growth Allowance 5%
Increase Percentage (17.9 - 5) = 12.9%
Apply the discount and determine increase (12.9% X .90% X 100) $11.60
The Second Calculation: At year end, determine averages for each period.
- ----------------------
Prior Year End Volumes Current Year End Volumes
Oct Nov Dec Avg Oct Nov Dec Avg
DD Trans 300 350 325 325 400 415 400 405
Deposit Accts 50 60 55 55 70 70 70 70
Loan Accts 10 10 10 10 12 12 12 12
The Third Calculation: Determine internal growth - (remove acquisition volumes).
- ---------------------
Current Year End Avg Converted Volumes Internal Volumes for
Current Year End
DD Trans 405 50 355
Deposit Accts 70 10 60
Loan Accts 12 2 10
The Fourth Calculation: Determine average percentage difference and percentage
- -----------------------
growth after allowance.
Avg Avg Average Percentage Difference
DD Trans 325 355 (355-325)/325 = 9.2%
Deposit Accts 55 60 (60-55)/55 = 9 1%
Loan Accts 10 10 (10-10)/10 = 0%
Average Percentage Growth (9.2+9.1+0)/3 - 6.1%
The Fifth Calculation: Apply percentage growth after allowance to the Fixed
- ---------------------
Monthly Fee and add back increase from conversion.
Allowance remaining 0
Average Percentage Growth after allowance 6.1%
Increase to Fixed monthly Fee From Internal Growth (100 X 1.061) $106
Plus: Converted Volumes Increase to Fixed Monthly Fee 12
New Fixed Monthly Fee $118
EXHIBIT D
---------
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EXHIBIT E
---------
HARDWARE PURCHASE AGREEMENT
FIserv and Client in consideration of the mutual promises set forth herein and
intending to be legally bound hereby, covenant and agree to the terms vendor and
conditions set forth in this Hardware Purchase Agreement (the "HPA") to govern
the purchase and sale of data processing equipment ordered from vendors by
FIserv on behalf of Client.
1. EQUIPMENT
FIserv agrees to sell to Client and Client agrees to purchase,
pursuant to the terms of this HPA, the data processing equipment which shall be
described in Appendix A hereto (the "Equipment"). The first equipment order
shall be integrated into this HPA as Appendix A which shall also contain the
purchase price of the Equipment and the purchase price of any vendor software to
be provided with the Equipment. Other Equipment may be sold by FIserv and
purchased by Client pursuant to the terms and conditions of this HPA by mutual
agreement of the parties as evidenced by signed attachments of additional
Appendices describing such Client harmless from any additional equipment.
2. DELIVERY.
2.1 FIserv shall arrange for shipment of the Equipment to the
Client. FIserv shall not be responsible for delays in shipments due to causes
beyond its control. The delivery schedule for the Equipment shall parts be
provided to Client by the Equipment vendor(s).
2.2 FIserv shall not be responsible for installation of the Equipment, and
FIserv shall not be liable for any losses, damages, or expenses which may result
during installation. The vendor of the Equipment shall define its installation
responsibilities, commitments, and liabilities in a separate agreement between
vendor and Client.
2.3 Client hereby grants FIserv a security interest in the Equipment and any
proceeds (including accounts receivable) thereof as security for under Client's
obligations hereunder. Said security interest shall commence upon the initial
delivery of any part of the Equipment to Client and shall terminate upon
Client's full payment for the Equipment pursuant to Paragraph 5 of this HPA.
Client shall execute at FIserv's request any and all documents and other
instruments necessary to perfect said security interest. If Client defaults in
its payment obligations under this HPA, FIserv may repossess the Equipment by
directing Client in writing to deliver the Equipment to FIserv or to a third
party designated by FIserv. Client shall pay all expenses of any such delivery.
3. INSPECTION AND ACCEPTANCE.
Client shall be responsible for inspecting the Equipment upon its delivery to
Client and for notifying FIserv within thirty (30) days of said delivery if the
Equipment delivered to Client varies, in whole or in part, with the Equipment
set forth in Appendix A hereto. Unless FIserv is notified in writing prior to
the end of said thirty day period that the Equipment does not conform to the
description set forth in Appendix A, Client shall be deemed to have accepted the
Equipment for purposes of this HPA, and shall not be entitled to a refund of any
amounts paid for the Equipment. In the event the Equipment delivered differs
from the Equipment set forth in Appendix A hereto and FIserv is so notified by
Client within thirty (30) days of delivery of the Equipment, Client may return,
at Client's expense, the Equipment to FIserv and all payments pertaining to such
returned Equipment shall be refunded by FIserv to Client.
4. PAYMENT
4.1 Client shall pay the total purchase price of the Equipment set forth in
Appendix A hereto within fifteen (15) days of the date of the invoice for such
Equipment. Client shall also pay the cost of drayage, rigging and delivery of
the Equipment to its installation site, within fifteen (15) days of the date of
the invoice for such charges.
4.2 All amounts owed by Client under this HPA which are past due for more than
thirty (30) days after payment thereof is due shall bear interest at one (l)
percent per month
5. TAXES
Client is responsible for all taxes arising from the sale of the Equipment
pursuant to this HPA and shall pay such taxes when said taxes are due. FIserv
shall remit all sales taxes paid by Client for the purchase of the Equipment to
the pertinent taxing authority
6. NO WARRANTIES
The parties acknowledge that all standard manufacturer and vendor warranties
apply to the Equipment listed in Appendix A hereto. FIserv MAKES NO WARRANTY OR
REPRESENTATION OF ANY KIND EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES AND REPRESENTATIONS CONCERNING THE SELECTION, QUALITY, CONDITION,
MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OPERATION OR
PERFORMANCE OF ANY ITEM OF THE EQUIPMENT OR THE MAINTENANCE THEREOF. EQUIPMENT
COVERED BY THIS HPA IS PROVIDED TO THE CLIENT AS IS.
7. INDEMNIFICATION.
FIserv agrees that, as a condition to the sale of Equipment to Client pursuant
to this HPA, it shall obtain, from each vendor of Equipment, the vendor
agreement to indemnify Client and hold Client harmless from any claim of
infringement a third party's patent or copyright by the vendor's equipment.
8. MAINTENANCE.
Unless the parties agree otherwise, FIserv shall not be responsible for the
prevision of any maintenance or repairs to the Equipment or of any or
replacements for the Equipment.
9. DAMAGES.
FIserv's sole liability for any breach of this HPA of other claim relate to the
Equipment or the subject matter hereof shall be for direct damage arising
therefrom. In no event shall FIserv be liable for any indirect, consequential,
special or punitive damages.
10. SUSPENSION OF PERFORMANCE
In the event that FIserv is unable to perform any of its obligations under this
HPA or to enjoy any of its benefits due to (or if loss of the Equipment is
caused by) hostile or warlike action in time of peace or war, severe weather,
natural disaster, actions or decrees of any governmental bodies or sovereign
power, labor disputes, communication line failure or any other cause beyond its
reasonable control (hereinafter referred to as a "Force Majeure Event"), FIserv
shall give notice of such Force Majeure Event to Client and shall use its best
effort to resume performance of this HPA. Upon receipt of such notice, all
obligations under this HPA shall be immediately suspended. Delays in delivery
due to a Force Majeure Event shall automatically extend the delivery of the
equipment for a period equal to the duration of the Force Majeure Event.
11. ASSIGNMENT
Either party may assign or subcontract its obligation under this HPA whole or in
part to the other party, provided that the party so assigning or subcontracting
shall remain primarily liable for, and the guarantor of, all of its obligations
under the HPA.
12. MISCELLANEOUS.
12.1 This HPA, and all Appendices hereto, shall be governed by the
laws of the Commonwealth of Pennsylvania.
12.2 No term or provision hereof shall be deemed waive and no breach excused
unless such waiver or consent is in writing and signed by the party claimed to
have so waived or consented.
12.3 Any notice given under this HPA shall be in writing and sent by registered,
certified, express or first-class mail or hand-delivery to the party to receive
such notice at the address for such party set forth in this document.
12.4 Any amendment or supplement to this HPA must be in writing
and executed by both parties hereto.
13. ENTIRE AGREEMENT
This HPA and all Appendices hereto, constitutes the entire hardware
purchase agreement between FIserv and Client and supersedes all
proposals, oral and written, or other understandings, agreements or
representations, oral and written, between the parties pertaining to the
equipment. All Appendices to this HPA are hereby incorporated by reference
herein and made a part hereof. The invalidity, in whole or in part, of any
provision of this HPA shall not affect the validity of any other part or
provision of this HPA.
EXHIBIT F
---------
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is between FIserv and the Client.
FIserv and the Client agree that all of the terms and conditions set out
in this License Agreement will apply to any FIserv Licensed
Program(s) materials offered under this License Agreement. FIserv
will (1) furnish Licensed Program(s), as defined in Section 1, to the
Client and (2) provide services as described herein.
1. LICENSED PROGRAM(S)
The term "Licensed Program(s)" in this License Agreement shall mean licensed
data processing program(s) consisting of a series of instructions or statements
in machine-readable form, and any related licensed materials such as, but not
limited to, system documentation, flow charts, logic diagrams, listings and
operating instructions provided for use in connection with the Licensed
Program(s). The Licensed Program(s) is described in Attachment A, attached, and
incorporated by this reference.
2. TERM OF LICENSE AGREEMENT
This License Agreement shall become effective on the Effective Date of the
Agreement and is for a term beginning with the delivery date and shall continue
for the Initial Term of the Agreement. The delivery date shall be the date that
FIserv notifies the Client that the Licensed Program(s) is functional according
to FIserv specifications. FIserv will assist in planning the delivery of the
Licensed Program(s).
3. TITLE
Title to the Licensed Program(s) and related materials shall at all times remain
with FIserv. All alterations, revisions, additions, enhancements and
improvements made to the Licensed Program(s) shall be the property of FIserv.
FIserv grants the Client a non-exclusive and non-transferable license to use the
Licensed Program(s) in accordance with this License Agreement.
4. USE OF SYSTEM.
The Client acknowledges that the Licensed Program(s) and related license
materials are owned by FIserv and constitute a valuable asset and trade secret
of FIserv, and that any information with respect thereto is confidential.
Accordingly, the Client agrees as follows: (a) Client will use the program(s)
only in machine-readable form and only on the appropriate equipment. (b) The
Client will utilize printed related license materials only in support of the
Licensed Program(s). (c) Use of and access to the Licensed Program(s) shall be
permitted only from the location(s) designated herein. This limitation shall not
prohibit the Client from moving the Licensed Program(s) so long as the Client
gives prior written notice to FIserv (except for an emergency relocation). (d)
The Client shall not, without prior written consent from FIserv, sell, lease,
sub-lease, assign, or otherwise transfer its rights in the Licensed Program(s)
or decompile, disassemble or otherwise reverse engineer the Licensed Program(s),
or duplicate, copy or otherwise reproduce the Licensed Program(s) (except as a
part of standard backup procedures). Client further agrees that it shall keep
confidential and shall not disclose the Licensed Program(s) or any part thereof
or any information pertaining thereto, to any person or entity whatsoever (other
than to employees with a need to know, independent certified public accountants
for auditing purposes or for compliance with governmental regulatory authorities
or examiners).
(e) The Client shall make no change or alteration to the Licensed
Program(s) without the prior written consent of FIserv.
5. CLIENT SATISFACTION GUARANTEE.
For a period of six (6) months from the delivery date of the Licensed Program(s)
described herein, FIserv warrants that the program(s) will perform in the manner
described in the System Documentation or FIserv will refund to the Client the
initial license fee paid by the Client. THE EXPRESSED WARRANTIES CONTAINED IN
THIS LICENSE AGREEMENT CONSTITUTE THE ONLY WARRANTIES MADE BY FIserv, EITHER
EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED PROGRAM(S) AND THE SERVICES
PERFORMED BY FIserv HEREUNDER. THERE ARE NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, WHICH EXTEND BEYOND THE FACE HEREOF INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL FIserv BE
LIABLE FOR ANY INCIDENTAL CONSEQUENTIAL DAMAGES.
6. SUPPORT.
FIserv will provide on-going support services as described in Attachment A.
Client agrees it is obligated to maintain support for not less than the Initial
Term of the Agreement and will pay FIserv according to the fees set forth in
Attachment A. While under support, Client agrees to install new release or
version of the Licensed Program(s) as they become available. FIserv agrees to
provide support to Client for the Initial Term of the Agreement, subject to
payment for all support services due FIserv by the Client. Support fees may be
increased after the first year of the term, not to exceed 10% per year. Client
will give FIserv not less than three months written notice of cancellation of
support will be renewed for periods of one (1) year each. Should Client
discontinue support under the term of this License Agreement or not take
delivery within one (1) year from the Effective Date, then FIserv support
obligations under this License Agreement are fully discharged as to that
Licensed Program unless support is reinstate under Section 7.
The policy of FIserv is to provide improvements to maintain competitive
marketability of its products and to assist the Client in its duty with
Federal regulations applicable to the data used in the Licensed
Program(s). FIserv, therefore, reserves the right to make such changes
the Licensed Program(s) as it deems appropriate.
7. REINSTATEMENT OF SUPPORT.
Should Client terminate support or support is terminated for nonpayment of
charges, on written request of Client, accompanied by tender of the
reinstatement charge and charge for support services for not less than one year,
FIserv, at its option, may reinstate support services. Client agrees to install
the most current release or version of the Licensed Program prior to
reinstatement and to pay any additional license fees , if applicable.
8. CHARGES AND PAYMENT TERMS.
(a) The license and support services fees applicable to each Licensed Program
are specified in Attachment A. (b) Reinstatement charges are equal to the
support services charges owned. (c) The Client is responsible for any property,
sales, use and/or excise taxes, which are accessed or payable on account of this
License Agreement.
9. CHARGES FOR CHANGE IN LICENSE.
Client is licensed to operate the Licensed Program(s) for the number of
workstations shown on Attachment A. If the Client adds workstations, the
parties will complete an additional Attachment to reflect the
upgraded license and support service charges.
10. OTHER CLIENT OBLIGATIONS.
Client will designate a responsible person to represent the Client and
help coordinate the Client's personnel during the installation period and
thereafter. Client will (i) provide qualified personnel to attend the
applicable training courses at FIserv headquarters to insure proper
installation, (ii) pay the then prevailing FIserv training fees, and (iii)
make proper use of the Licensed Program(s). If the Client requests on-site
support then FIserv shall quote the terms of such support, including fees.
11. TERMINATION
Upon an event of default as defined in Section 12 below, the
non-defaulting party may terminate this License Agreement. Upon termination
by FIserv, the Client shall deliver the Licensed Program(s)
and all related materials at the Client's expense, to a location designated
by FIserv. The Client agrees to certify to FIserv that the Licensed Program(s)
is no longer in use and after termination, FIserv shall have no further
obligation to the Client.
12. DEFAULT
It shall be an event of default should the Client fail to pay sums due
hereunder, as and when such sums are due and payable. It shall be an event of
default if either party breaches a material obligation or covenant
of this License Agreement and such breach is not cured within thirty (30) days
from the written notice, such notice specifying in detail the nature and
duration of default. Client agrees that, upon the occurrence of any actual or
threatened breach by Client of the restrictions upon the use, sale, transfer, or
disclosure of the Licensed Program(s), FIserv will suffer irreparable harm, that
monetary damages alone shall not be a sufficient remedy, and FIserv shall be
entitled to injunctive or other equitable relief as may be deemed proper or
necessary by a court of competent jurisdiction, in addition to FIserv's other
right herein.
13. LIMITATION OF LIABILITY
Any liability of FIserv to Client for any liability, loss, damage, cost or
agreement, or under-taking arising out of or relating to this License Agreement
shall be limited to actual direct damages incurred by Client, but in no event
shall FIserv's aggregate liability exceed the initial license fee. Neither party
shall be liable to the other party for any consequential, special, indirect, or
incidental damages.
14. GENERAL
(a) FIserv shall have the right to collect from the Client reasonable expenses
incurred in enforcing the collection of fees, taxes, or any other sums payable
hereunder or in connection with the enforcement by FIserv of its right or
remedies hereunder including, but not limited to, any court costs or reasonable
attorney' fees incurred in connection therewith. No failure of FIserv to demand
any sum, when due, shall be deemed a waiver by FIserv of the obligation of
Client to pay such a sum.
(b) FIserv may without Client's consent, assign or transfer this License
Agreement and in such event FIserv assignee or transferee shall have the rights,
powers, privileges, and remedies of FIserv thereunder. Client shall not assign
this License Agreement or any interest hereunder without FIserv's prior written
consent, such consent not to be unreasonably withheld.
(e) FIserv agrees to defend, indemnify and hold harmless the Client from and
against any loss, claim, damage, or cost (including reasonable attorneys' fees)
arising out of any action against the Client asserting a claim that the
Client's use of the License Program(s) infringes any patent of copyright held by
another party, provided, however, Client is operating under the most current
release or version of the Licensed Program(s). Client provides prompt notice to
FIserv of such action, and FIserv may assume the complete defense of such claim.
(d) The Licensed Program(s) will be located at
________________________________________________________________________________
________________________________________________________________________________