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Exhibit 10.3
[The InterCept(sm) Group Letterhead] Data Processing
Agreement
This DATA PROCESSING AGREEMENT is made and entered into as of June 28, 1999, by
and between, Greenville First (In Organization), located at 1805 Laurens Road,
Greenville, SC 29607 and its successors (herein referred to as the
"Participating Bank"), and The InterCept Group, located at 3150 Holcomb Bridge
Rd. Suite 200, Norcross, Georgia 30071 (herein referred to as the "Computer
Center").
In consideration of the mutual promises and covenants contained herein, the
parties hereto agree as follows:
1. DATA PROCESSING SERVICES. Computer Center agrees to render to
Participating Bank the data processing services described on Exhibit "A"
(the "Services") for the term of this Agreement, and Participating Bank
agrees to purchase the Services. This Agreement describes the general
nature of the Services and the terms under which the Computer Center is to
provide or make the Services available to the Participating Bank. In the
event of any conflict between the language of this Agreement and any
brochures, verbal representations, or other materials describing the
Services, the language of this Agreement shall control.
YEAR 2000 COMPLIANCE. Computer Center warrants and represents to
Participating Bank that all hardware, software and firmware delivered
under this Agreement shall be able to accurately process date related data
(including, but not limited to calculating, comparing and sequencing
before, on and after January 1, 2000, including leap year calculations,
when used in accordance with the product documentation delivered under
this Agreement.
2. CONVERSION OF PARTICIPATING BANK'S INFORMATION.
a) Within a reasonable time following execution of this Agreement,
Computer Center will undertake the programming required to convert
Participating Bank's information files into a format compatible with
the Computer Center systems. Participating Bank agrees to cooperate
with Computer Center in this endeavor and to provide all information
and assistance required for Computer Center to successfully convert
Participating Bank's information files to a form compatible with
Computer Center's systems and equipment so that Computer Center can
provide the Services. Among other things, Participating Bank shall
deliver conversion input information, in its entirety, in a mutually
acceptable medium, as and when the parties agree.
b) Computer Center shall determine, in accordance with its normal
acceptance procedures, when Participating Bank's information files
have been successfully converted and when the Services to be provided
by Computer Center to Participating Bank are operational and
available for Participating Bank's use. Participating Bank agrees to
review and check the information converted by Computer Center within
ten (10) days after notice to Participating Bank of Computer Center's
completion of conversion. Computer Center reserves the right to
postpone conversion of Participating Bank's information files if
Participating Bank is late in delivering its conversion input
information or if any other circumstances arise that might jeopardize
the successful completion of Participating Bank's information
conversion or the processing of the Participating Bank's following
day's transactions for any other customers of Computer Center.
c) In the event the conversion process is stopped, cancelled, or
suspended by Participating Bank, Participating Bank agrees to pay
Computer Center all labor costs, expenses, and charges incurred by
Computer Center in preparing to perform under this Agreement.
Computer Center shall submit to Participating Bank an itemized
statement of all
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such charges and Participating Bank agrees to pay said statement
prior to the return to Participating Bank of any conversion input
information or data provided to Computer Center and, in any event,
within thirty (30) days after receipt.
d) Computer Center shall provide to Participating Bank training so that
Participating Bank may fully utilize the Services provided by
Computer Center at the time of conversion of Participating Bank's
information.
3. INPUT AND OUTPUT DATA. Participating Bank shall be responsible for
providing to Computer Center all input data and other information
necessary for Computer Center to perform the Services. The input data
shall be transmitted by Participating Bank to Computer Center in a format
acceptable to Computer Center via an approved telecommunication method and
system. Participating Bank is solely responsible for the accuracy and
delivery of all information to be provided to Computer Center for
processing. Computer Center agrees to provide Participating Bank with
Reports, provided, however, that in any event Computer Center shall have a
reasonable amount of time after receipt of the input data from
Participating Bank to process such data. All Reports shall be delivered by
Computer Center to Participating Bank by telecommunications to a remote
printer designated by Participating Bank. The design and format of any
Reports or forms to be prepared by Computer Center must be approved by
Computer Center.
4. TERM. This Agreement shall begin on the date hereof and shall remain in
effect for a period of Five (5) years (the "Term") following the first
full calendar month subsequent to the date hereof in which any Services
commonly known as processing services are provided by Computer Center to
Participating Bank, as evidenced by the billing records of Computer
Center. This Agreement shall automatically renew for the same Term unless
written notice of termination is delivered by either party to the other at
least one hundred eighty (180) days prior to the original expiration date
or subsequent renewal expiration dates of the Agreement.
5. ASSISTANCE FROM PARTICIPATING BANK. In addition to the input data to be
delivered by Participating Bank pursuant to paragraph 3 above, Computer
Center's performance of the Services may, from time to time, require data,
documents, descriptions or acts to be furnished by, or to be qualified or
processed in part by, the Participating Bank or its personnel. Computer
Center agrees to give prompt notice of such requirements to Participating
Bank, and Participating Bank agrees to furnish such data, documents,
descriptions or acts and to make such personnel, records and facilities
available within such time or times after its receipt of such notice and
in such manner as shall be reasonably necessary to enable the Computer
Center to perform the Services.
6. COMMUNICATIONS. Participating Bank shall bear all risk of loss or damage
to items, records, other input data, or Reports and other output data
during communication or delivery of such data between the Participating
Bank's office and the Computer Center. Participating Bank shall be
responsible for and shall pay all charges related to communications
between Participating Bank and Computer Center.
7. EQUIPMENT.
a) Participating Bank agrees that it is responsible for all
communications between Participating Bank and Computer Center. When
communicating with, or transferring data to, or receiving data from,
Computer Center, Participating Bank shall, at its own cost and
expense, use and maintain only such terminals, modems and other
hardware, firmware and software (hereinafter collectively referred to
as the "Equipment") as may be compatible with the systems and
communications networks of Computer Center. The Participating Bank's
Equipment must be completely compatible with the systems and
communications networks of Computer Center and, if requested by
Computer Center, Participating Bank shall be responsible for
providing sufficient information about the Equipment to Computer
Center and for performing adequate tests to demonstrate that the
Equipment is in good working order and completely compatible with the
systems and communications networks of Computer Center. In the event
Computer Center believes it is in its and its clients' best interest
to upgrade Computer Center's systems to more efficient and capable
equipment or to keep Computer Center competitive, Participating Bank
agrees to acquire any Equipment necessary to keep Participating Bank
and Computer Center fully compatible.
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b) Unless otherwise agreed by the parties, Computer Center shall schedule
and arrange for the communications services, including communications
equipment installation, with the communication provider. Participating
Bank shall be responsible for paying all charges imposed by the
provider of the communications equipment, such as the telephone
company, for the Equipment installation, as well as for any charges
for additional connections or changes to locations or future services.
Computer Center shall not be responsible for the reliability or
continued availability of the telephone lines, communications
facilities, or electrical power used by Participating Bank in
utilizing the Services provided by Computer Center hereunder. Computer
Center will cooperate with communications vendors as appropriate so
that communications between Participating Bank and Computer Center
facilities function properly.
8. LIMITATION OF LIABILITY.
a) Computer shall not be responsible for any failure in providing the
Services, any delays in processing, or any failure or delay in the
delivery of any Reports that may be caused, in whole or in part, by
strikes, lockouts, riots, epidemics, governmental actions or
regulations, natural disaster, fire, inclement weather, acts of God,
computer breakdown or failure, communications failure, interruptions
in telephone or electrical service, courier's failure to timely
deliver, or any other causes beyond its reasonable control. In the
event such delays exist without interruption for a period of more than
thirty (30) days, Participating Bank or Computer Center may elect to
terminate this Agreement without breach. Participating Bank is under
no duty to make any payments to Computer Center for any period
exceeding five (5) consecutive business days in which the Services are
not performed by Computer Center as a result of a natural disaster or
other phenomenon mentioned above.
b) Computer Center's obligation to Participating Bank hereunder in
performing the Services is to exercise the same degree of care and
diligence used in processing information and compiling reports for its
own use. Computer Center's sole responsibility to Participating Bank
or any third party for any claims, notwithstanding the form of such
claims (e.g., contract, negligence or otherwise), arising out of
errors or omissions in the Services or Reports provided or to be
provided hereunder and caused by Computer Center (provided that
Participating Bank shall have promptly notified Computer Center of any
such errors or omissions), shall be to furnish at Computer Center's
costs the correct Services or Report and/or to correct the applicable
Participating Bank files.
c) Computer Center will make every reasonable effort to be available to
provide Services during the hours referred to in paragraph 20 below.
Accordingly, Computer Center's liability to Participating Bank or any
third party for claims, notwithstanding the form of such claims (e.g.,
contract, negligence or otherwise) arising out of the unavailability
or inaccessibility of Computer Center's system, or the interruption in
or delay of Services provided or to be provided by Computer Center
hereunder, shall be to use reasonable efforts to resume the Services
as promptly as practicable, provided, however, that Computer Center
shall not be responsible for communication failures caused, in whole
or in part, by the incompatibility or failure of Participating Bank's
Equipment or by third party telecommunication or electric lines or
equipment.
d) Computer Center shall not be liable to Participating Bank for errors
resulting from defects in, or malfunctions of, the mechanical or
electronic equipment used by Participating Bank or Computer Center in
performing the duties and obligations contemplated in and covered by
this Agreement.
e) Computer Center shall not be liable for damages arising under this
Agreement, regardless of the claim, unless such damages result from
gross negligence or willful misconduct on the part of Computer
Center's officers or employees, in which case Computer Center's
liability will be limited to actual damages directly resulting from
such gross negligence or willful misconduct. In any event, any damages
for which Computer Center may be liable shall be limited to the
service charges received by Computer Center from Participating Bank
for Services during the twelve (12) months prior to the alleged
damage. If Participating Bank desires to obtain insurance protection
against any such losses, or to cover fidelity losses through an
endorsement to its own blanket bond coverage, Computer Center agrees
to cooperate with Participating Bank in obtaining such insurance. In
the event Participating Bank recovers insurance proceeds pursuant to
such insurance, such proceeds shall constitute a setoff against actual
damages claimed by Participating Bank that directly result from gross
negligence or willful misconduct of Computer Center. It is understood
that all costs and expenses of such insurance shall be paid by
Participating Bank. Computer Center agrees to maintain, with coverage
amounts determined by Computer Center, fidelity bondcoverage with
respect to any dishonest acts which may be committed by Computer
Center personnel, and insurance in policy amounts and
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types determined by Computer Center, with respect to hazards,
including losses by Computer Center from fire, disaster, and other
events which may interrupt normal service.
(f) IN NO EVENT WILL COMPUTER CENTER BE RESPONSIBLE FOR SPECIAL,
RELIANCE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT
OF ANY ACT OR OMISSION BY COMPUTER CENTER IN CONNECTION WITH THIS
AGREEMENT, EVEN IF COMPUTER CENTER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH DAMAGES ARISE IN AN ACTION
AT LAW OR IN EQUITY, FOR BREACH OF CONTRACT, BREACH OF WARRANTY,
PRODUCT LIABILITY, BREACH OF UCC PROVISIONS, NEGLIGENCE OR
INTENTIONAL TORT. FURTHERMORE, COMPUTER CENTER SHALL NOT BE LIABLE
FOR PARTICIPATING BANK'S LOST PROFITS, LOSS OF BUSINESS
OPPORTUNITIES, OR FOR EXEMPLARY DAMAGES. THE PROVISIONS HEREOF ARE IN
LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED, WHETHER OF
MERCHANTABILITY, FITNESS OR OTHERWISE.
9. COMPLIANCE WITH FEDERAL REGULATIONS. Computer Center warrants that it
maintains a formal agreement with a suitable processing center to provide
backup facilities capable of processing Participating Bank's data and
satisfying all requirements of this Agreement. Further, Computer Center
shall comply with all federal rules and regulations applicable to it
relating to the conduct of its business. Computer Center also insures that
the services provided under this agreement shall properly process
Participating Bank's data into and beyond the year 2000.
10. REVIEW OF REPORTS. It will be the responsibility of Participating Bank to
maintain audit controls and/or procedures which may be required by
supervisory authorities under regulations to which the Participating Bank
is subject. Balancing of input totals to computer generated output totals
will be the responsibility of Participating Bank, and Computer Center
accepts no responsibility for the correctness of these totals. Computer
Center will exercise reasonable care and diligence in maintaining controls
over the Services rendered Pursuant to this Agreement.
11. THIRD PARTY AUDIT. Computer Center shall provide to Participating Bank a
copy of the most recent third party service audit of the records of
Computer Center upon request by Participating Bank and payment by
Participating Bank of a reasonable and customary charge. If requested,
Computer Center shall also provide to Participating Bank annual audited
financial information regarding Computer Center at no charge.
12. FEES. In consideration of the Services provided by Computer Center,
Participating Bank shall pay to Computer Center each month, in advance
based upon the prior month's activity, those fees described on attached
Exhibit "B." The fees set forth on Exhibit "B" are exclusive of any
applicable taxes or assessments, however designated, which may be levied
or assessed by any government or other taxing authority having
jurisdiction to levy such tax upon the Services. Participating Bank agrees
to pay Computer Center the amount of such taxes or assessments, whenever
requested by Computer Center. The fees described on Exhibit "B" may be
changed from time to time by Computer Center upon thirty (30) days prior
notice to Participating Bank, provided, however, that the maximum annual
increase in any fee described in Exhibit "B" shall not exceed six percent
(6%).
In the event the Participating Bank acquires another financial institution
or branch of a financial institution, the Computer Center reserves the
right to review volume growth (assets and account volume) and make
necessary adjustments in pricing as may more accurately reflect the
Computer Center's standard account pricing as described in Exhibit "B".
13. OTHER FEES. In the event Participating Bank requests that Computer Center
procure forms that are to be supplied by, Participating Bank shall pay to
Computer Center the cost of such forms plus Computer Center's reasonable
and customary markup when billed. If overtime and/or special handling is
requested by Participating Bank or is required because of delays not the
fault of Computer Center, Participating Bank agrees to pay Computer Center
at the established rates then in effect for overtime and/or special
handling for production operations and for any other out-of-pocket expense
related thereto. If it is necessary for Computer Center to return the
finished products to Participating Bank by special carrier or special
messenger, Computer Center shall notify Participating Bank by telephone
and Participating Bank shall be charged with out-of-pocket expenses
incurred by Computer Center as a result of such special handling, unless
Participating Bank objects to such special handling at the time it
receives such notice. In the event Computer Center agrees to develop any
special programs for or in behalf of Participating Bank, Participating
Bank agrees to pay Computer Center development costs plus a reasonable
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markup. In addition, Participating Bank may be required to pay a license
fee as agreed by the parties for such special software.
14. CONFIDENTIALITY.
a) Computer Center agrees to hold in confidence all information relating
to the assets, liabilities or other business affairs of Participating
Bank, or any customers of Participating Bank, which are received by
Computer Center pursuant to this Agreement or in the course of
rendering the Services. It is expressly agreed and understood,
however, that performance of the Services will be subject to
examination by regulatory authorities, including, but not limited to,
(i) the Comptroller of Currency, (ii) the Board of Governors of the
Federal Reserve System, (iii) the Board of Directors of the Federal
Deposit Insurance Corporation, and (iv) the State Banking Department,
and that as part of the performance of Services hereunder, Computer
Center shall submit or furnish to the regulatory agencies reports,
information, assurances or other data as may be required under
applicable laws and regulations to which either party is subject.
b) Participating Bank acknowledges and agrees that all computer
programs, codes, and information regarding Computer Center's business
operations, pricing, the terms and conditions of this Agreement, the
Computer Center pricing manual and any other contract documents, the
Computer Center systems, and related matters (hereinafter
collectively referred to as "Proprietary Information"), are the
exclusive and confidential property of Computer Center, or the third
parties from whom Computer Center has secured the right to use
computer programs. Participating Bank understands that the harm that
could be caused to Computer Center should the Proprietary Information
be disclosed to its competitors and others having no need to know of
the Proprietary Information. Therefore, Participating Bank agrees to
hold all such Proprietary Information in strictest confidence.
Participating Bank will instruct its employees who have access to or
who use the Proprietary Information to keep same confidential by
using no less than the same degree of care and discretion that
Participating Bank uses with respect to its own confidential and
proprietary information. On termination of this Agreement,
Participating Bank shall return all Proprietary Information to
Computer Center and shall cease to use the same for any purpose
whatsoever. This paragraph shall not apply to any information
furnished by Computer Center which is already in the public domain at
the time of disclosure to Participating Bank or to any information
independently developed by Participating Bank outside this
Agreement. This provision shall survive termination of this
Agreement, regardless of cause, for a period of five (5) years from
date of termination.
15. DECONVERSION.
a) Upon termination of this Agreement, Computer Center will dispose of
all Participating Bank files still in the Computer Center's system in
such manner deemed appropriate by Computer Center unless
Participating Bank, prior to the date of termination, furnishes to
Computer Center written instructions for the disposal of
Participating Bank files, which instructions Computer Center will,
if reasonable and feasible, comply with at Participating Bank's
expense. Participating Bank's master file data will be maintained by
Computer Center for a period of thirty (30) days subsequent to
termination, after which time it may, at the option of Computer
Center, be destroyed.
b) Deconversion information or data shall not be made available to
Participating Bank until Participating Bank has first paid, in a form
acceptable to Computer Center, all sums due Computer Center,
including all monthly charges that might be due if deconversion
occurs prior to normal expiration of this Agreement, all accrued and
unpaid information processing and other charges, and all deconversion
charges. Participating Bank understands that it will be billed and
agrees to pay such bills for any additional services or reports
provided by Computer Center after deconversion at the request of
Participating Bank for audit verification or other purposes, at
Computer Center's normal rates for such services or reports.
Participating Bank agrees that Computer Center shall have a lien on
Participating Bank's information and data until all sums due are
paid in full. Release of said lien by surrender of possession by
Computer Center shall not affect any claim Computer Center might
have for payments due it from Participating Bank.
16. INSPECTION. Computer Center agrees that all records relating to
Participating Bank at all times shall be subject to inspection and
review by Participating Bank or its auditors, designees, accountants and
appropriate examiners from the applicable state and federal bank
regulatory agencies, upon reasonable notice to Computer Center. Computer
Center further agrees to prepare such reports, grant computer usage and
permit programming examination as may be necessary to meet the audit
requirements of Participating Bank. Reasonable charges shall be made to
and be payable by Participating Bank for all
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special programming and other computer usage in excess of any programming
or usage to which Participating Bank may be entitled pursuant to Exhibit
"B."
17. TITLE TO SOFTWARE. All right, title and interest in and to any and all
computer programs, and the source codes therefor, used by Computer Center
in the performance of Services, including any special programs written
specifically for Participating Bank, shall be and remain the property of
Computer Center.
18. PRIORITY. Computer Center shall advise Participating Bank by letter of
any system changes that would affect procedures or Reports. Computer
Center also agrees that Participating Bank's data shall have priority for
processing over any data of entities, other than banks, savings and loans,
credit unions and other financial institutions.
19. BINDING EFFECT AND ASSIGNMENT. This Agreement and all the provisions
hereof shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and permitted assigns. Neither this
Agreement nor any of the rights or obligations of either party hereunder
shall be assigned or delegated by such party to any other person without
Prior written consent of the other party hereto, except that Computer
Center (or any successor to Computer Center) may, at any time during the
Term hereof, assign its rights and delegate its obligations hereunder to
any subsidiary or division of Computer Center or any other entity which
controls, is controlled by, or is under common control with Computer
Center.
20. AVAILABILITY OF SERVICES. Computer Center's system will be available for
communication between Participating Bank and Computer Center from 8:00 AM
to 5:00 PM (5 days per week). Participating Bank's daily cut off time for
items capture, file maintenance and data transmissions will be no later
than 6:30 PM each day.
21. TERMINATION BY PARTICIPATING BANK. The parties further agree and
acknowledge that there may be certain circumstances in which Participating
Bank desires to discontinue Computer Center's provision of one or more of
the Services prior to the expiration date of this Agreement. In such
event, Computer Center will suffer substantial loss or injury that is
difficult or impossible to accurately estimate. Accordingly, in an effort
to liquidate in advance the sum that should represent the loss or damages
which would be actually sustained by Computer Center as a result of such
early termination by Participating Bank of any Services provided
hereunder, the parties have agreed on the amount specified below as a
reasonable pre-estimate of Computer Center's probable loss. If
Participating Bank desires to discontinue any Services hereunder,
Participating Bank shall give Computer Center one hundred eighty (180)
days advance written notice and shall pay Computer Center an amount equal
to 75% of the "estimated remaining service fees" with respect to the
Services being discontinued or the monthly "minimum charge," whichever is
greater, for the remainder of the Term beginning on the effective date of
termination. The "estimated remaining service fees" for the Services being
discontinued shall be calculated by multiplying the average monthly
service fees billed for the Services being discontinued for the six (6)
months immediately preceding notice of early termination by the number of
months remaining under the Term of this Agreement. The "minimum charge"
will be determined by Exhibit "B" of this Agreement. This amount is due
per the provisions of paragraph 15(b).
22. TERMINATION BY COMPUTER CENTER. In the event that Computer Center desires
to cancel this Agreement or discontinue Services hereunder, it shall give
Participating Bank one hundred eighty (180) days advance written notice
and this Agreement or any Service hereunder shall be cancelled in full.
23. ENTIRE AGREEMENT. This instrument, along with the appendices and schedules
incorporated herein by reference, constitutes the entire agreement and
understanding between the parties with respect to the subject matter
hereof. Representations and agreement not expressly contained or
incorporated by reference herein shall not be binding upon either party as
warranties or otherwise. Modifications of this Agreement must be in
writing and signed by duly authorized representative of the parties.
24. SEVERABILITY. In the event that one or more of the provisions of this
Agreement is for any reason held to be invalid or unenforceable, such
holdings shall not affect the remaining provisions of this Agreement.
25. APPLICABLE LAW. This Agreement is made and entered into in Norcross,
Georgia, and shall be governed by the laws of the State of Georgia.
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COMPUTER CENTER PARTICIPATING BANK:
THE INTERCEPT GROUP GREENVILLE FIRST (IN ORGANIZATION)
By: By: /s/ R. Arthur Seaver Jr.
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(Signature) (Signature)
Name: Name: R. Arthur Seaver Jr.
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(Please Print or Type) (Please Print or Type)
Title: Title: President/CEO
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Date: Date: 7-9-99
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