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Exhibit 10.12
ELECTRONIC DATA PROCESSING AGREEMENT
This Agreement is made and entered into this 8 day of May 1998 by and between
First Commerce Technologies, Inc., Lincoln, Nebraska, hereinafter referred to as
Processor, and Firs State Bank, Kimball, Nebraska, including a branch located in
Elm Creek, Nebraska, hereinafter referred to as Client, and supercedes any and
all other prior such Agreements upon the following terms and condition:
1. Services.
Processor will provide to Client the electronic data processing
services described in attached Addendum A,
2. Fees And Charges.
Client agrees to pay processor, via the ACII network on the
fifteenth day of each month, processing fees as set forth on
Addendum B for services performed the previous month. Processor,
at its option, may impose a charge of 1 1/2% per month on account
balances not paid by the due date. Charges for services performed
for the Client by the Processor which are not specified in
Addendum B will be at a price and upon the terms and conditions
agreed to by the parties at the time the Client requests such
services.
In order to adjust for the effects of inflation, after the first
twelve months of this Agreement, and semiannually thereafter, all
fees and charges reflected in this Agreement will be increased,
but not decreased, based on changes in the Consumer Price Index
for All Urban Consumers - Other Goods and Services (the "CPI-U")
as published by the U.S. Department of Labor, Bureau of Labor
Statistics. The first adjustment to be made at the beginning of
the thirteenth month will be equal to the percent of change over
the one year period for the twelve consecutive most recent months
of information published. This annual adjustment will not be less
than 3% nor more than 9%. Subsequent semiannual adjustments will
reflect the CPI-U change in each respective six month period and
will not be less than 1 1/2% nor more than 4 1/2% in any one
period.
In addition to the charges described above, Client agrees to pay
for any sales, use, or other tax or charge, levied or assessed
upon or as a result of the performance of any service pursuant to
this Agreement or materials furnished with respect to this
Agreement, except taxes based on Processor's income.
3. Term.
The original term of this Agreement shall be for a period of
three (3) yeas beginning on APRIL 1, 1998,
4. Input Data.
Client will provide Processor input data in a format acceptable
to or designated by Processor. Input data shall be complete and
correct, in a condition suitable for machine processing and
compatible with the data processing equipment and programs of
Processor. If the data submitted by the Client to the Processor
are incorrect, incomplete, or not in the form designated by
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Processor, Client will pay Processor for any additional work
performed to correct or complete the data.
Processor may rely upon any data, information, or instructions
provided by Client. If any error results from incorrect input
supplied by Client, Client shall be responsible for discovering
and reporting such error and supplying the data necessary to
correct such error.
5. Delivery Schedule.
Client will deliver input data to the Processor as established by
Addendum C. This schedule will be subject to mutually agreed upon
changes based upon the need and convenience of the Client and the
Processor. The priority for processing Clients data will be
established by Processor in accordance with a policy of providing
reasonable and efficient delivery of services to all Clients.
6. Contact Representative.
Client will designate a qualified individual who will handle all
relations with the Processor. At the time of the conversion,
Processor will train the contact representative in the use of the
data processing system(s).
7. System Modification.
The Processor will notify the Client of changes in the system
which affect procedures or reports and require Client to take
action with respect to such changes. These notifications shall be
in the form of addenda to the User Manual.
8. Electronic, Transactions.
Client authorizes Processor to facilitate the origination and
receipt of transactions to and from the National Automated
Clearing House Association (ACH). Client shall comply with all
rules, regulations, and operating procedures of the ACH or its
operators as in effect from time-to-time and shall enter into all
agreements required by the ACH or its operators. All entries into
the system shall be under the route transit identification number
of a financial institution to be designated by Client and all
clearing and settlement for such entries shall be conducted
through such financial institution.
9. Laws: Regulations.
Client shall be responsible for determining the applicability of
all state and federal laws and regulations including, but not
limited to, laws and regulations governing interest rates,
charges, penalties, disclosures, timing, applicable law and
conflict of laws, and to adopt standards, policies, practices and
procedures consistent with such laws and regulations. Processor
assumes no responsibility with respect to such determinations and
expressly limits its obligation to processing data supplied to
Client in accordance with this Agreement.
10. IRS Filing.
Client represents to Processor that it has complied with all
laws, regulations, procedures. and requirements in attempting to
secure correct Tax Identification Numbers (TINs) for Client's
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payees and agrees to attest to this compliance by affidavit
provided annually, Client authorizes Processor to act as Clients
agent and sign on Clients behalf any affidavit required by the
Internal Revenue Service with respect to TINs.
Client acknowledges that Processor's execution of IRS Affidavits
on Clients behalf does not relieve Client of responsibility to
provide accurate TINs or liability for any penalties which may be
assessed for failure to comply with TIN requirements.
11. Confidentiality.
Processor shall hold in confidence all information received by it
in the course of rendering services designated herein relating to
the Clients assets, liabilities, or the assets, liabilities,
business or affairs of any of the Clients customers. Processor
may disclose Client information pursuant to (1) any law of the
United States or any state; (2) the order of any court or
governmental agency; (3) the rules and regulations of any
governmental agency; (4) any subpoena; or (5) any rule of
discovery in connection with any civil or criminal action. Upon
termination Processor shall return to Client all information in
its possession in whatever form held.
12. Ownership.
All data, documentation, specifications, tapes and programs
furnished by the Client shall remain the property of the Client.
Files, documentation and records developed by the Processor from
data furnished by the Client shall be the property of the
Processor and shall remain the property of the Processor upon
termination of this Agreement. All specifications, tapes, and
programs used or developed by Processor in connection with this
Agreement (except those furnished by Client) are and shall remain
the sole property of Processor.
13. Risk Of Loss.
Client will deliver and/or transmit the required input to
Processor at Client's expense and pay the cost of delivery and
for transmission back to Client. Client will maintain source data
and other backup media sufficient for file and input data
recreation in order to mitigate against the, possibility of loss
of input data and Client data maintained by Processor.
Processor will bear the risk of loss with respect to items in its
custody, but only to the, extent of the cost to replace or repair
the material on which the items or records arc recorded.
Processor will bear no risk of loss for items that are not
machine-readable, including, but not limited to, mutilated
currency, food coupons, bond coupons, credit card merchant
receipts, and foreign checks.
14. Catastrophic Loss Or Malfunction.
Processor will maintain industry acceptable procedures for
emergency processing in the event of catastrophic hardware loss
or malfunction.
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15. Insurance.
Throughout the term of the agreement, Processor shall maintain
insurance coverage (or shall be self insured) for losses from
fire, disaster, and other causes contributing to interruption of
these services. The proceeds, of such insurance shall be payable
to Processor. Nothing in this agreement shall be construed as to
permit Client to receive any of such proceeds, or to be named as
an additional loss payee under any insurance policy.
16. Disclaimer of Warranties.
PROCESSOR DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN, ORAL,
EXPRESSED, OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
17. Indemnification
Except for losses, liabilities, damages, costs or expenses as
might be incurred or to which Processor may be subjected by
reason of its own negligence or willful misconduct Client agrees
to indemnify and bold the Processor harmless from all loss,
liability, costs, damages and expenses (including reasonable
attorney's fees) to which Processor may be subjected, or which
may be incurred in connection with any claim by third parties
which may arise out of or as a result of this Agreement or the
performance by Processor of services hereunder.
18. Limitation Of Liability.
Processor agrees to perform data processing services herein in a
commercially reasonable manner, which is similar to the services
provided by it to its other Clients, and no other or higher
degree of care. In no event shall the Processor, its employees or
agent be liable for any failure of delay in processing due to
fire, flood, other natural catastrophe, the failure of data
processing or handling equipment, strike or other causes beyond
Processor's reasonable control. PROCESSOR, ITS AGENTS OR
EMPLOYEES WILL IN NO EVENT BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCURRED BY CLIENT
INCLUDING, BUT NOT LIMITED TO, LOSS OF INTEREST, LOSS OF INCOME,
OR LOSS OF BUSINESS OPPORTUNITY REGARDLESS OF WHETHER PROCESSOR
WAS ADVISED OF THE POSSIBLE OCCURRENCE OF SUCH DAMAGES.
19. Information To Third Parties.
Processor will furnish data processing information to such
regulatory authorities, auditors, or examiners or such other
parties as requested by Client in writhing. Client will pay any
fees incurred for producing such information.
20. Financial Information.
Processor shall make available to the Client, upon request, an
annual report on the financial condition of the Processor.
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21. Audit.
Processor shall, upon request, provide Client one (1) copy of the
report resulting from the third party review by Processor's
independent certified public accountants. Processor shall, upon
request, make available for Clients review a current copy of
Processor's Disaster Recovery Plan. Client (or a Representative
of the Client) shall have the right to perform additional audit
procedures on Processor. Client assumes responsibility for all
costs associated with the performance of Client's additional
audit procedures, including expenses incurred by Processor
related to such procedures.
22. Continuation After Term.
This, Agreement shall automatically renew for successive contract
terms equal to the original term, unless written notice is
delivered by either Client or Processor to the other at least
nine (9) months prior to the expiration of the original term
hereof or any renewal or extension thereof.
23. Early Termination.
Client may terminate the Agreement before expiration of the
original term of this Agreement, upon satisfaction of each of the
following conditions: (a) Client shall have been acquired by
another financial institution; (b) within six months after it is
acquired Client shall have notified Processor in writing of its
intention to terminate, with such notice providing for a
termination date not less than one year thereafter; and (c)
Client shall have paid Processor a fee, which shall accompany the
foregoing termination notice, equal to 40% of the scheduled
processing fee which would have been paid from the actual
termination date through the original term of the Agreement. For
any portion of the processing fee which may be volume sensitive
as set forth on Addendum B, the termination charge for such
portion shall be based on the average processing fee assessed for
the three (3) calendar months immediately preceding the month of
notice.
If processor fails to provide or offer services consistent with
Year 2000 requirements, Client may terminate this Agreement by
giving Processor a six (6) month notice of termination and not be
liable for any other termination fee.
24. Default.
If Client is in default of any of its obligations hereunder,
including nonpayment of processing fees, Processor may, at its
option and in addition to all other remedies immediately
terminate the Agreement as to future obligations without further
notice.
25, Disposition of Client Data.
At the expiration of this Agreement, Processor may dispose of any
data left by Client unless written instructions for disposition
are received within ten (10) days of the termination date. Client
shall pay any expense incurred and disposing of or transferring
the data to another processor.
26. User Manual.
Processor agrees to provide Client with one User Manual for each
application. Client agrees to abide by the procedures,
instructions, and conditions set forth in the User's Manual.
Processor
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may periodically amend and/or update the Users Manual, and will
provide Client with documentation regarding such amendments and
updates.
27. Year 2000 Statement
FCT acknowledges the responsibility for assuring that its active
systems effectively handle Year 2000 conditions. As such, FCT is
making the necessary adjustments to appropriate systems to
accommodate the calendar rollover to the Year 2000. In addition,
a significant testing program is being implemented to ensure that
our mission critical applications process Year 2000 dates
correctly.
28, Miscellaneous.
A. Addenda
All addenda and other schedules or exhibits
attached to or referred to in this Agreement shall
be deemed to be a part of this Agreement as if
fully set forth.
B. Notices
All notices required or permitted under this
Agreement shall be given in writing and shall be
deemed given when mailed, first class, postage
prepaid, addressed to the party at the address set
forth in connection with the party's signature or
such other address as any party shall provide to
the other by notice.
C. Use of Services
Client will use the services provided under this
Agreement only for its own internal business
purposes and will not sell or otherwise provide,
directly or indirectly, any such services or any
portion thereof to any third party.
D. Entire Agreement
This Agreement, together with the Addenda hereto,
constitutes, the entire agreement between
Processor and Client with respect to the subject
matter hereof. There are no restrictions,
promises, warranties, covenants, or undertakings
other than those expressly set forth herein. This
Agreement supersedes all prior negotiations,
agreements, and undertakings between the parties
with respect to such subject matter.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first above written and have executed the Agreement on the date
set forth in connection with their respective signatures.
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First Commerce Technologies, Inc. First State Bank
126 North 11th Street, P.O. Box 82414 115 S Walnut Street P.O. Box 730
Lincoln, Nebraska 68501 Kimball, Nebraska 69145
Signature: /s/ J. Michael Tadlock Signature: /s/ Michael J. Nelson
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Print Name: J. Michael Tadlock Print Name: Michael J. Nelson
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Title: Senior Vice President Title: President
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Date: 5/13/98 Date: May 8, 1998
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ADDENDUM A
This is an Addendum to the Electronic Data Processing Agreement dated May 8,
1998. Processor will provide the following services to client as set forth in
the User's Manual.
Standard applications included in the "basic fee" on Addendum B.
Demand Deposit Accounting (DDA) Certificates Of Deposit (CDS)
Individual Retirement Accounting (IRA) Loan Accounting System (LAS)
General Ledger System (GLS) Client Services Information (CSI) Tax
Repotting System (TRS) Funds Transfer System (FES) Card Management
System (CMS) Bond Accounting., System (Bonds)
Additional applications included on Addendum B:
Online System (OLS)
Online input and inquiry transactions
Item Processing Services (Schedule A)
View/Print/Archive Report Software
Call Report Preparation Software
First Commerce Technologies, Inc. First State Bank
126 North 11th Street, P.O. Box 82414 115 S. Walnut Street, P.O. Box 730
Lincoln, Nebraska 68501 Kimball, Nebraska 69145
Signature: /s/ J. Michael Tadlock Signature: /s/ Michael J. Nelson
Print Name: J. Michael Tadlock Print Name: Michael J. Nelson
Title: Senior Vice President Title: President
Date: 5/18/98 Date: May 8, 1998
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ADDENDUM B
This is an Addendum to the Electronic Data Processing Agreement dated May 8,
1998 Processing will be provided as follows:
Data Center Services processing with full on-line input and inquiry
with reports printed in the Processing Center and transported by ground
to Client's facility.
Processing fees will be paid by Client to the Processor for the applications
listed on Addendum A.
BASE FEE
The following base monthly processing fee applies to the standard
applications listed on Addendum A.
Base Monthly Processing Fee; $5,243.00
Up to 8,800 accounts Included in Base Fee
8,801 to 25,000 accounts $0.60 per account
Over 25,000 accounts $0.55 per account
All additional applications listed on Addendum A will be charged based
on fees provided in Schedule A or contracted for separately.
Additional Fees:
1) Monthly ATM Processing Fees: 2 ATMs at $220 Per ATM
The monthly fee for ATM service includes the cost of a modem and
related maintenance and line monitoring, and unlimited transactions and
authorizations.
2) All phone line charges, drops and installation fees. Charges are passed
on to the user bank in relationship to amounts charged by provider, and
may be adjusted periodically.
3) Transportation of data and/or items to and from the dam center. Charges
are passed on to the user bank in relationship to the amounts charged
by provider, and may be adjusted periodically.
4) Equipment purchases and maintenance, leased equipment and repairs are
contracted for separately.
5) Custom forms may be printed on bank premise at bank expense. In an
In-Bank printing environment, user bank is responsible for all paper
and forms printed in bank. Purchasing of supplies, stock paper,
statements, and special forms may be made through FCT to get quantity
pricing.
6) All FRAD'S, modems, modem sharing devices, and converters for telephone
communications are leased and contracted for separately.
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7) FCT's Online System (Online input and inquiry transactions)
8) Item Processing Services (Schedule A)
9) View/Print/Archive Report Software
10) Call Report Preparation Software
11) Microfiche Generation Service
The pricing set forth in this Addendum B will be adjusted for increased volume
as reflected above. If, through acquisitions, mergers or other means, the client
significantly increases the number of accounts, volume of transactions or number
of branches, Processor reserves the right to adjust the monthly processing fee
of this Agreement with mutual agreement of the Client.
First Commerce Technologies, Inc. First State Bank
126 North 11th Street, P.O. Box 82414 115 S. Walnut Street, P.O. Box 730
Lincoln, Nebraska 68501 Kimball, Nebraska 69145
Signature: /s/ J. Michael Tadlock Signature: /s/ Michael J. Nelson
Print Name: J. Michael Tadlock Print Name: Michael J. Nelson
Title: Senior Vice President Title: President
Date: 5/13/98 Date: May 8, 1998
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ADDENDUM C
This is an Addendum to an Electronic Data Processing Agreement dated May 8,
1998.
Delivery schedules as of the date of this Addendum are as follows:
Client shall have available for courier pick up all input data on or
before, 4:00 p.m. on each day Monday through Friday.
Processor shall deliver by courier all output data on or before 8:00
a.m. each day Tuesday through Saturday,
First Commerce Technologies, Inc. First State Bank
126 North 11th Street, P.O. Box 82414 115 S. Walnut Street, P.O. Box 730
Lincoln, Nebraska 68501 Kimball, Nebraska 69145
Signature: /s/ J. Michael Tadlock Signature: /s/ Michael J. Nelson
-------------------------- -------------------------
Print Name: J. Michael Tadlock Print Name: Michael J. Nelson
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Title: Senior Vice President Title: President
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Date: 5/13/98 Date: May 8, 1998
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FIRST COMMERCE TECHNOLOGIES, INC.
Schedule A
ITEM PROCESSING SERVICES
FEE SCHEDULE
Service Description unit Service Fee
ITEM CAPTURE
Inclearing Item Capture Per Item $0.010
Proof of Deposit (POD) Item Capture Per Item $0.015
Bulk File/Fine Sorting of Items Per Item $0.0083
STATEMENT PRINTING
Printed Statement Data Per Page $0.07
First Commerce Technologies, Inc. First State Bank
126 North 11th Street, P.O. Box 82414 115 S. Walnut Street, P.O. Box 730
Lincoln, Nebraska 68501 Kimball, Nebraska 69145
Signature: /s/ J. Michael Tadlock Signature: /s/ Michael J. Nelson
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Print Name: J. Michael Tadlock Print Name: Michael J. Nelson
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Title: Senior Vice President Title: President
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Date: 5/13/98 Date: May 8, 1998
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