OUTSOURCING AGREEMENT
(renewal)
BY AND BETWEEN
COLUMBIA STATE BANK
and
METAVANTE CORPORATION
DATED AS OF
JANUARY 1,200l
TABLE OF CONTENTS
1. BACKGROUND ................................................................ 1
1.1 Definitions ............................................................ 1
1.2 References ............................................................. 1
1.3 Interpretation ......................................................... 1
2. TERM ...................................................................... 1
2.1 Initial Term ........................................................... l
2.2 Extensions.............................................................. 1
3. APPOINTMENT ............................................................... l
3.1 Performance by Metavante Affiliates or Subcontractors .................. 1
3.2 Third Party Products/Services .......................................... 1
3.3 Proper Instructions .................................................... 1
4. CONVERSION ................................................................ 1
5. BANKING APPLICATION SERVICES .............................................. 1
5.1 ADP Services ........................................................... l
5.2 New Services ........................................................... 1
5.3 Automated Clearing House Services ...................................... 1
5.4 Data Warehouse Services ................................................ 2
5.5 Connectware Services ................................................... 2
6. HOME BANKING AND RETAIL DELIVERY SERVICES ................................. 2
6.1 DirectPC Services intentionally omitted ................................ 2
6.2 Internet Banking Services intentionally omitted ........................ 2
6.3 Business Express Services intentionally omitted ........................ 2
7. ELECTRONIC FUNDS DELIVERY ................................................. 2
7.1 Cardholder and Merchant Accounts intentionally omitted ................. 2
7.2 EFT Services ........................................................... 2
8. FEES ...................................................................... 2
8.1 Fee Structure .......................................................... 2
8.2 Pricing and Operational Assumptions .................................... 2
8.3 EFT Services ........................................................... 2
8.4 Training and Education ................................................. 2
8.5 Excluded Costs ......................................................... 2
8.6 Disputed Amounts ....................................................... 2
8.7 Terms of Payment ....................................................... 2
8.8 Modification of Terms and Pricing ...................................... 3
9. PERFORMANCE WARRANTY/EXCLUSIVE REMEDY/DISCLAIMER OF ALL OTHER WARRANTIES .. 3
9.1 Performance Warranty ................................................... 3
9.2 Performance Warranty Exclusions ........................................ 3
9.3 Notice of and Correction of Defects .................................... 3
9.4 Backup Remedy .......................................................... 3
9.5 DISCLAIMER OF ALL OTHER WARRANTIES ..................................... 3
10. MODIFICATION OR PARTIAL TERMINATION ...................................... 3
10.1 Modifications to Services ............................................. 3
10.2 Partial Termination by Metavante ...................................... 3
10.3 Partial Termination by Customer ....................................... 3
10.4 Ownership and Proprietary Rights ...................................... 3
11. TERMINATION .............................................................. 4
11.1 Early Termination ..................................................... 4
11.2 For Cause ............................................................. 4
11.3 For Insolvency ........................................................ 4
11.4 For Force Majeure ..................................................... 4
12. SERVICES FOLLOWING TERMINATION ........................................... 4
-i-
12.1 Termination Assistance ................................................ 4
12.2 Continuation of Services .............................................. 4
13. LIMITATION OF LIABILITY/MAXIMUM DAMAGES ALLOWED .......................... 4
13.1 Equitable Relief ...................................................... 4
13.2 Exclusion of Incidental and Consequential Damages ..................... 4
13.3 Maximum Damages Allowed ............................................... 4
13.4 Statute of Limitations ................................................ 4
13.5 Economic Loss Waiver .................................................. 5
13.6 Liquidated Damages .................................................... 5
13.7 Essential Elements .................................................... 5
14. INSURANCE AND INDEMNITY .................................................. 5
14.1 Insurance ............................................................. 5
14.2 Indemnity ............................................................. 5
14.3 Indemnification Procedures ............................................ 5
15. DISPUTE RESOLUTION ....................................................... 5
15.1 Representatives of Parties ............................................ 5
15.2 Continuity of Performance ............................................. 5
16. AUTHORITY ................................................................ 6
16.1 By Metavante .......................................................... 6
16.2 By Customer ........................................................... 6
17. CONFIDENTIALITY AND OWNERSHIP ............................................ 6
17.1 Customer Data ......................................................... 6
17.2 Metavante Systems ..................................................... 6
17.3 Confidential Information .............................................. 6
17.4 Obligations of the Parties ............................................ 6
17.5 Security .............................................................. 6
18. MANAGEMENT OF PROJECT .................................................... 6
18.1 Account Representatives ............................................... 6
18.3 Development Projects and Technical Support ............................ 6
19. REGULATORY COMPLIANCE .................................................... 6
20. DISASTER RECOVERY ........................................................ 7
20.1 Services Continuity Plan .............................................. 7
20.2 Relocation ............................................................ 7
20.3 Resumption of Services ................................................ 7
20.4 Annual Test ........................................................... 7
21. GENERAL TERMS AND CONDITIONS ............................................. 7
21.l Transmission of Data .................................................. 7
21.2 Equipment and Network ................................................. 7
21.3 Reliance on Data ...................................................... 7
21.4 Data Backup ........................................................... 7
21.5 Balancing and Controls ................................................ 7
21.6 Use of Services ....................................................... 7
21.7 Regulatory Assurances ................................................. 8
21.8 IRS Filing ............................................................ 8
21.9 Affiliates ............................................................ 8
21.10 Future Acquisitions .................................................. 8
22. MISCELLANEOUS PROVISIONS ................................................. 9
22.1 Governing Law ......................................................... 9
22.2 Venue and Jurisdiction ................................................ 9
22.3 Entire Agreement; Amendments .......................................... 9
22.4 Assignment ............................................................ 9
22.5 Relationship of Parties ............................................... 9
22.6 Notices ............................................................... 9
22.7 Headings .............................................................. 9
22.8 Counterparts .......................................................... 9
-ii-
22.9 Waiver ................................................................ 9
22.10 Severability ........................................................ l0
22.11 Attorneys' Fees and Costs ........................................... 10
22.12 Financial Statements ................................................ 10
22.13 Publicity ........................................................... 10
22.14 Solicitation ........................................................ l0
22.15 No Third Party Beneficiaries ........................................ 1O
22.16 Force Majeure ....................................................... l0
22.17 Construction ........................................................ 10
22.18 Waiver of Jury Trial ................................................ 10
Schedules
- ---------
1.1 Definitions
1.2 Customer Affiliates
5.1 ADP Services
5.3 ACH Services
5.4 Data Warehouse Services
5.5 Connectware
5.6 7.2 EFT Services
8.1 Fee Schedule
9.1 ADP Performance Standards
11.1 Termination Fee
Exhibits
- --------
A ACH Authorization Agreement
B Attorney-in-Fact Appointment
C Affidavit
-iii-
OUTSOURCING AGREEMENT
Outsourcing Agreement ("Agreement") is made as of the 1st day of January 1,
2001, by and between Columbia State Bank, a Washington corporation ("Customer")
and Metavante Corporation, a Wisconsin corporation.
Metavante and Customer entered into a Data Processing Services Agreement
("DP Agreement") for the provision of certain data processing services.
Metavante and Customer wish to continue the business relationship, in accordance
with the terms and conditions of this Agreement.
In consideration of the payments to be made and services to be performed
hereunder, the parties agree as follows:
1. BACKGROUND
1.l. DEFINITIONS. The defined terms of this Agreement shall have the
meaning ascribed to them on attached Schedule 1 .I.
1.2. As of the Effective Date (as defined in Schedule 1.11, the DP
Agreement is hereby terminated and of no further force and effect. Such
termination is effective without any penalty or payment due from Customer to
Metavante for early termination,
1.3. REFERENCES. In this Agreement and the schedules and exhibits
attached hereto, which are hereby incorporated and deemed a part of this
Agreement, references and mention of the word "include" and "including" shall
mean "includes, without limitation" and "including, without limitation," as
applicable.
1.4. INTERPRETATION. In the event of a conflict between this Agreement
and the terms of any exhibits and schedules attached hereto, the terms of the
schedules and exhibits shall prevail and control the interpretation of the
Agreement. The exhibits and schedules together with the Agreement shall be
interpreted as a single document.
2. TERM
2.1. INITIAL TERM. This Agreement shall commence on the Effective Date
and end on the fifth (5lh) anniversary of the last day of the month in which the
Effective Date occurs ("Initial Term").
2.2. EXTENSIONS. Unless this Agreement has been earlier terminated, at
least one (1) year prior to the expiration of the Initial Term, Metavante shall
submit to Customer a written proposal for renewal of this Agreement. Customer
will respond to such proposal within three (3) months following receipt and
inform Metavante in writing whether or not Customer desires to renew this
Agreement. If Metavante and Customer are unable to agree upon the terms for
renewal of this Agreement at least six (6) months prior to the expiration of the
Initial Term, then this Agreement shall be automatically renewed on a
month-to-month basis at Metavante's then-current standard prices, until either
party gives the other six (6) months notice of intent to terminate.
3. APPOINTMENT
3.1. PERFORMANCE BY METAVANTE AFFILIATES OR SUBCONTRACTORS. Customer
understands and agrees that the actual performance of the Services may be made
by the divisions or subsidiaries of Marshall & Ilsley Corporation, Affiliates
Controlled by Marshall & Ilsley Corporation, or subcontractors of any of the
foregoing Entities (collectively, the "Eligible Providers"). For purposes of
this Agreement, performance of the Services by any Eligible Provider shall be
deemed performance by Metavante Corporation itself. Metavante shall remain fully
responsible for the performance or non-performance of each Eligible Provider
under this Agreement, to the same extent if Metavante itself performed or failed
to perform such services. Customer agrees to look solely to Metavante, and not
to any Eligible Provider, for satisfaction of any claims Customer may have
arising out of this Agreement or the performance or nonperformance of Services.
3.2. THIRD PARTY PRODUCTS/SERVICES. The parties acknowledge that
certain services and products necessary for the performance of the Services are
being, and in the future may be, provided by Third Parties who will contract
directly with Customer. Metavante shall have no liability to Customer for
information and products supplied by, or services performed by, such Third
Parties in conjunction with the Services.
3.3. PROPER INSTRUCTIONS. "Proper Instructions" shall mean those
instructions sent to Metavante by letter, memorandum, telegram, cable, telex,
telecopy facsimile, computer terminal, e-mail or other "on line" system or
similar means of communication or given orally over the telephone or given in
person by one or more of the person(s) whose name(s) and signature(s) are listed
on the most recent certificate delivered by Customer to Metavante which lists
those persons authorized to give orders, corrections and instructions in the
name of and on behalf of Customer. Proper Instructions shall specify the action
requested to be taken or omitted.
4. CONVERSION Intentionally Omitted
5. BANKING APPLICATION SERVICES
5.1. ADP SERVICES. Metavante agrees to provide Customer with the ADP
Services set forth on Schedule 5.1.
5.2. NEW SERVICES. If Customer wishes to receive any New Service which
is identified on Metavante's then-current standard price list, Customer shall
notify Metavante and the parties shall implement the same in accordance with a
mutually acceptable schedule. If the New Service is not identified on
Metavante's then-current standard price list, Customer shall submit a written
request to Metavante in accordance with Section 18.2 of this Agreement. Nothing
contained herein shall obligate Metavante to develop a New Service for Customer.
5.3. AUTOMATED CLEARING HOUSE SERVICES. The automated clearing house
services ("ACH Services") to be provided by Metavante shall be subject to the
terms and conditions set forth on attached Schedule 5.3.
-1-
5.4. DATA WAREHOUSE SERVICES. The data warehouse services ("Data
Warehouse Services") to be provided by Metavante shall be subject to the terms
and conditions set forth on attached Schedule 5.4.
5.5. CONNECTWARE SERVICES. The Connectware Services to be provided by
Metavante shall be subject to the terms and conditions
set forth on attached Schedule 5.5.
6. HOME BANKING AND RETAIL DELIVERY SERVICES
6.1. DIRECTPC SERVICES. intentionally omitted
6.2. INTERNET BANKING SERVICES. intentionally omitted
6.3. BUSINESS EXPRESS SERVICES. intentionally omitted
7. ELECTRONIC FUNDS DELIVERY
7.1. CARDHOLDER AND MERCHANT ACCOUNTS. Intentionally omitted
7.2. EFT SERVICES. The electronic funds transfer services ("EFT
Services") to be provided by Metavante shall be subject to the terms and
conditions set forth on attached Schedule 7.2.
8. FEES
8.1. FEE STRUCTURE. Schedule 8.1 attached hereto (the "Fee Schedule")
sets forth the costs and charges for the Services and Customer agrees to pay
Metavante the fees specified in the Fee Schedule for the Services rendered by
Metavante. These costs and charges are included in one or more of the following
categories:
A. one-time fees associated with any conversion;
B. a minimum monthly fee for certain recurring, aggregated data
processing services based on stated volumes; actual volumes in excess of stated
volumes shall result in additional charges as further described in the Fee
Schedule;
C. an hourly or daily fee for programming, training and related
Services requested by Customer; and
D. fees based on Metavante's then current price list for New
Services not included in the foregoing categories.
8.2. PRICING AND OPERATIONAL ASSUMPTIONS. The Fee Schedule sets forth
the operational and pricing assumptions made by Metavante. If the parties
determine that one or more of the pricing or operational assumptions listed in
the Fee Schedule is inaccurate or incomplete in any material respect, the
parties will negotiate in good faith regarding an equitable adjustment to any
materially and adversely impacted provisions of this Agreement.
8.3. EFT SERVICES. In addition to the charges specified on the Fee
Schedule, Customer shall be responsible for all interchange and network provider
fees and all dues, fees and assessments established by and owed to Visa and/or
Mastercard for the processing of Customers transactions, and for all costs and
fees associated with changes to ATM (as defined in Schedule 7.2) protocol caused
by Customer's use of the EFT Services.
8.4. TRAINING AND EDUCATION.
A. Metavante shall provide training as requested by Customer and
agreed to by Metavante. The sessions shall be held at a location mutually agreed
upon by the parties. Customer shall be responsible for all Expenses incurred by
the participants and Metavante's trainers in connection with such education and
training. If Customer requests that training be conducted at a non-Metavante
facility, Customer shall be responsible for additional fees as quoted by
Metavante.
B. Metavante will provide to Customer, at no charge, one set of
each of the User Manuals. When the User Manuals are updated, Metavante will
provide the updates to Customer at no additional charge. Additional sets of the
User Manuals may be purchased by Customer at Metavante's then current price
list.
8.5. EXCLUDED COSTS. The fees set forth in the Fee Schedule do not
include shipping and courier costs, telecommunication charges, LU charges,
Expenses, Third Party pass-through charges, workshop fees, training fees, late
fees or charges and Taxes.
8.6. DISPUTED AMOUNTS. If Customer disputes any charge or amount on any
invoice and such dispute cannot be resolved promptly through good faith
discussions between the parties, Customer shall pay the amounts due under this
Agreement less the disputed amount, and the parties shall diligently proceed to
resolve such disputed amount. An amount will be considered disputed in good
faith if(i) Customer delivers a written statement to Metavante on or before the
due date of the invoice, describing in detail the basis of the dispute and the
amount being withheld by Customer, (ii) such written statement represents that
the amount in dispute has been determined after due investigation of the facts
and that such disputed amount has been determined in good faith, and (iii) all
other amounts due from Customer that are not in dispute have been paid in
accordance with the terms of this Agreement.
8.7. TERMS OF PAYMENT. Any "one-time" fees shall be paid to Metavante
as set forth in the Fee Schedule. Customer shall pay the Monthly Base Fee in
advance on the first day of the calendar month in which the Services are to be
performed. To effect payment, Customer hereby authorizes Metavante to initiate
debit entries from and, if necessary, initiate credit entries and adjustments to
Customers account at the depository institution designated in the ACH
Authorization Agreement attached hereto as Exhibit A, which shall be executed by
Customer contemporaneously with the execution of this Agreement. All other
amounts due hereunder shall be paid within thirty (30) days of invoice, unless
otherwise provided in the Fee Schedule. Undisputed charges not paid by the due
date shall be subject to annual interest
-2-
at the rate of 12% or the highest rate permitted by law, whichever is lower.
Customer shall also pay any collection fees and Damages incurred by Metavante in
collecting payment of the charges and any other amounts for which Customer is
liable under the terms and conditions of this Agreement.
8.8. MODIFICATION OF TERMS AND PRICING. All charges for Services shall
be subject to the annual adjustments (including CPI adjustments) set forth in
the Fee Schedule.
9. PERFORMANCE WARRANTY/EXCLUSIVE REMEDY/DISCLAIMER OF ALL OTHER WARRANTIES
9.1. PERFORMANCE WARRANTY. Metavante warrants that it will provide the
ADP Services covered by this Agreement in accordance with the Performance
Standards and where such Performance Standards are not applicable, in a
commercially reasonable manner in substantial conformity with the applicable
User Manuals (the "Performance Warranty"). THIS PERFORMANCE WARRANTY IS SUBJECT
TO THE WARRANTY EXCLUSIONS SET FORTH BELOW IN SECTION 9.2 AND THE REMEDY
LIMITATIONS SET FORTH BELOW IN SECTION 9.3.
9.2. PERFORMANCE WARRANTY EXCLUSIONS. Except as may be expressly agreed
in writing by Metavante, Metavante's Performance Warranty does not apply to:
A. defects, problems, or failures caused by the Customer's
nonperformance of obligations essential to Metavante's performance of its
obligations; and/or
B. defects, problems, or failures caused by an event of force
majeure.
9.3. NOTICE OF AND CORRECTION OF DEFECTS. Customer shall notify
Metavante in writing of any alleged breach of this Performance Warranty. If the
breach relates to a Performance Standard, Metavante shall have ninety (90) days
to correct the alleged breach; for all other breaches of the Performance
Warranty, Metavante shall have thirty (30) days to correct the alleged breach.
During this time period, Metavante shall use reasonable efforts, at its own
expense, to remedy the breach. Customer shall be responsible for making whatever
appropriate adjustments may be necessary to mitigate adverse effects on Customer
until Metavante remedies the breach. Metavante will, at Metavante's expense,
assist Customer in making such corrections through the most cost-effective
means, whether manual, by system reruns or program modifications.
9.4. BACKUP REMEDY. If Metavante fails to remedy the breach in the time
periods specified in Section 9.3 above, Customer may file a claim for Damages
pursuant to the dispute resolution procedure set forth in Section 15.1 below
and, in addition, terminate the Agreement for cause pursuant to Section 11.2
below. THE BACKUP REMEDY SET FORTH IN THIS SECTION 9.4 IS CUSTOMERS SOLE AND
EXCLUSIVE REMEDY FOR Metavante's BREACH OF THE PERFORMANCE WARRANTY, TO THE
EXCLUSION OF ALL OTHER REMEDIES, IN CONTRACT, TORT, OR OTHERWISE.
9.5. DISCLAIMER OF ALL OTHER WARRANTIES. THIS PERFORMANCE WARRANTY, AND
THE REPRESENTATIONS IN ARTICLE 16. ARE IN LIEU OF. AND Metavante DISCLAIMS ANY
AND ALL OTHER WARRANTIES. CONDITIONS. OR REPRESENTATIONS (EXPRESS OR IMPLIED,
ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT Metavante KNOWS, HAS
REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH
PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE
TRADE, OR BY COURSE OF DEALING. IN ADDITION, Metavante DISCLAIMS ANY WARRANTY OR
REPRESENTATION TO ANY PERSON OTHER THAN THE CUSTOMER WITH RESPECT TO THE
SERVICES PROVIDED UNDER THIS AGREEMENT.
10. MODIFICATION OR PARTIAL TERMINATION
10.1. MODIFICATIONS TO SERVICES. Metavante may modify, amend, enhance,
update, or provide an appropriate replacement for the software used to provide
the Services, or any element of its systems or processes at any time to: (i)
improve the Services or (ii) facilitate the continued economic provision of the
Services to Customer or Metavante, provided that neither the functionality of
the Services nor any applicable Performance Standards are materially adversely
affected.
10.2. PARTIAL TERMINATION BY METAVANTE. Metavante may, at any time,
withdraw any of the Services (other than the Core Services) upon providing
ninety (90) days' prior written notice to Customer. Metavante may also terminate
any of the Services immediately upon any final regulatory, legislative, or
judicial determination that providing such Services is inconsistent with
applicable law or regulation. If Metavante terminates any Service, Metavante
agrees to assist Customer, without additional charge, in identifying an
alternate provider of such terminated Service.
10.3. PARTIAL TERMINATION BY CUSTOMER.
A. Customer agrees that, during the Term, Customer shall obtain
exclusively from Metavante all of its requirements covered by the Initial
Services. If Customer breaches the foregoing covenant, Customer shall pay
Metavante a Termination Fee for the discontinued Service, as liquidated damages
and not as a penalty. StarView product without payment of any Termination Fee.
Notwithstanding the foregoing, Customer may terminate the receipt of the
B. Unless otherwise agreed to by the parties in writing, Customer
may terminate any New Service upon one hundred eighty (180) days prior written
notice to Metavante. Termination of New Services shall not be subject to any
Termination Fee, unless the entire Agreement is terminated in a manner which
would entitle Metavante to receive a Termination Fee.
10.4. OWNERSHIP AND PROPRIETARY RIGHTS. Metavante reserves the right to
determine the hardware, software and tools to be used by Metavante in fulfilling
its duties under this Agreement. Metavante and Customer intend and agree that
Metavante shall retain title and all
-3-
other ownership and proprietary rights in and to the Metavante Proprietary
Materials and information. Such ownership and proprietary rights shall include
any and all rights in and to patents, trademarks, copyrights, and trade secret
rights. Metavante and Customer agree that Metavante Proprietary Materials and
Information are not "work made for hire" within the meaning of U.S. Copyright
Act 17 U.S.C. Section 101.
11. TERMINATION
11.1. EARLY TERMINATION. The terms and conditions set forth in attached
Schedule 11.1 shall govern the early termination of this Agreement (or any
Service which is part of the Initial Services).
11.2. FOR CAUSE. If either party fails to perform any of its material
obligations under this Agreement and does not cure such failure within thirty
(30) days (or any other cure period specifically set forth in the Agreement)
after being given notice specifying the nature of the failure, then the
non-defaulting party may, by giving notice to the other party, terminate this
Agreement as of the date specified in such notice of termination, or such later
date agreed to by the parties, without prejudice to the non-defaulting party's
right to collect Damages (if the non-defaulting party is the Customer) or the
Termination Fee (if the nondefaulting party is Metavante).
11.3. FOR INSOLVENCY. In addition to the termination rights set forth
in Sections 11 .I and 11.2, subject to the provisions of Title 11, United States
Code, if either party becomes or is declared insolvent or bankrupt, is the
subject to any proceedings relating to its liquidation, insolvency or for the
appointment of a receiver or similar officer for it, makes an assignment for the
benefit of all or substantially all of its creditors, or enters into an
agreement for the composition, extension, or readjustment of all or
substantially all of its obligations, or is subject to regulatory sanction by
any Federal Regulator, then the other party may, by giving written notice to
such party, may terminate this Agreement as of a date specified in such notice
of termination; provided that the foregoing shall not apply with respect to any
involuntary petition in bankruptcy filed against a party unless such petition is
not dismissed within sixty (60) days of such filing.
11.4. FOR FORCE MAJEURE. In the event that Metavante fails to provide
the Services in accordance with this Agreement for a period of forty-five (45)
days due to an event of force majeure (as described in Section 22.16 hereof),
Customer may terminate this Agreement upon written notice to Metavante delivered
within thirty (30) days thereafter, without payment of any Termination Fee.
12. SERVICES FOLLOWING TERMINATION
12.1. TERMINATION ASSISTANCE. Following the expiration or early
termination of this Agreement, Metavante shall provide Customer, at Customers
expense, Customer's data and all necessary assistance to facilitate the orderly
transition of Services to Customer or its designee ("Termination Assistance").
As part of the Termination Assistance, Metavante shall assist Customer to
develop a plan for the transition of all Services then being performed by
Metavante under this Agreement, from Metavante to Customer or its designee, on a
reasonable schedule developed jointly by Metavante and Customer. Prior to
providing any Termination Assistance, Metavante shall deliver to Customer a good
faith estimate of all such Expenses and charges including charges for custom
programming services. Customer understands and agrees that all Expenses and
charges for Termination Assistance shall be computed in accordance with
Metavante's then- current standard prices for such products, materials and
services. Provided Customer does not request any custom programming or other
special services, based on the way Metavante performs Termination Assistance as
of the date of this Agreement, the charges for Termination Assistance would
consist of per tape charges only. Nothing contained herein shall obligate
Customer to receive Termination Assistance from Metavante.
12.2. CONTINUATION OF SERVICES. Unless Metavante terminates this
Agreement pursuant to Section 11.2 above, upon at least ninety (90) days' prior
written request by Customer, Metavante shall continue to provide Customer all
Services and the Effective Date of Termination shall be extended for a maximum
period of twelve (12) months. If Customer elects to receive the Services for
such period, Metavante's then-current standard pricing shall continue to apply
to the provision and receipt of such Services,
13. LIMITATION OF LIABILITY/MAXIMUM DAMAGES ALLOWED
13.1. EQUITABLE RELIEF. Either party may seek equitable remedies,
including injunctive relief, for a breach of the other party's obligations under
Article 17 of this Agreement, prior to commencing the dispute resolution
procedures set forth in Section 15.1 below.
13.2. EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. Independent
of, severable from, and to be enforced independently of any other provision of
this Agreement, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY
PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) IN CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL,
PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND--including lost profits, loss of
business, or other economic damage, and further including injury to property, AS
A RESULT OF BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT, INCLUDING
ANY FAILURE OF PERFORMANCE, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY
LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY
THEREOF.
13.3. MAXIMUM DAMAGES ALLOWED. Notwithstanding any other provision of
this Agreement, and for any reason, including breach of any duty imposed by this
contract or independent of this contract, and regardless of any claim in
contract, tort (including negligence) or otherwise, Metavante's total, aggregate
liability under this Agreement shall in no circumstance exceed payments made to
Metavante by Customer under this Agreement during the three (3) months prior to
the act or event giving rise to such claim. No such limitation shall apply with
respect to Metavante's willful misconduct or intentional failure to perform.
13.4. STATUTE OF LIMITATIONS. No lawsuit or other action may be brought
by either party hereto, or on any claim or controversy based upon or arising in
any way out of this Agreement, after one (1) year from the date on which the
cause of action arose regardless of the nature of the claim or form of action,
whether in contract, tort (including negligence) or otherwise; provided,
however, the foregoing limitation shall not apply to the collection of any
amounts due under this Agreement.
-4-
13.5. ECONOMIC LOSS WAIVER. In addition to and not in limitation of any
other provision of this Article 13, each party hereby knowingly, voluntarily,
and intentionally waives any right to recover from the other party, and Customer
waives any right to recover from any Eligible Provider, any economic losses or
damages in any action brought under tort theories, including, misrepresentation,
negligence and/or strict liability and/or relating to the quality or performance
of any products or services provided by Metavante. For purposes of this waiver,
economic losses and damages include monetary losses or damages caused by a
defective product or service except personal injury or damage to other tangible
property. Even if remedies provided under this Agreement shall be deemed to have
failed of their essential purpose, neither party shall have any liability to the
other party under tort theories for economic losses or damages.
13.6. LIQUIDATED DAMAGES. Customer acknowledges that Metavante shall
suffer a material adverse impact on its business if this Agreement is terminated
prior to expiration of the Term, and that the resulting Damages may not be
susceptible of precise determination. Customer acknowledges that the Termination
Fee is a reasonable approximation of such Damages and shall be deemed to be
liquidated Damages and not a penalty.
13.7. ESSENTIAL ELEMENTS. Customer and Metavante acknowledge and agree
that the limitations contained in this Article 13 are essential to this
Agreement, and that Metavante has expressly relied upon the inclusion of each
and every provision of this Article 13 as a condition to executing this
Agreement.
14. INSURANCE AND INDEMNITY
14.1. INSURANCE. Metavante shall maintain for its own protection
fidelity bond coverage for the Operations Center personnel; insurance coverage
for loss from fire, disaster or the causes contributing to interruption of
normal services, reconstruction of data file media and related processing costs;
additional expenses incurred to continue operations; and business interruption
to reimburse Metavante for losses resulting from suspension of the Operation
Center's activities due to physical loss of equipment.
14.2. INDEMNITY.
A. By Customer. Customer shall indemnify Metavante from, defend
Metavante against, and pay any final judgments awarded against Metavante,
resulting from: (i) any breach of this Agreement by Customer (ii) the operation
of Customer's business; (iii) breach by Customer of its obligations under
Section I7 of this Agreement; (iv) work-related injury or death caused by
Customer or its employees or agents; (v) tangible personal or real property
damage resulting from Customer's acts or omissions; and (vi) the data,
information and/or instructions furnished by Customer and any inaccuracy or
inadequacy therein.
B. By Metavante. Metavante shall indemnify Customer from, defend
Customer against, and pay any final judgment awarded against Customer, resulting
from: (i) any claim by a Third Party that the Services or the Metavante Software
infringe upon any patent, copyright or trademark of a Third Party under the laws
of the United States; (ii) any breach of this Agreement by Metavante; (iii)
breach by Metavante of its obligations under Section I7 of this Agreement; (iv)
the operation of Metavante's business; (v) work-related injury or death caused
by Metavante, its employees, or agents; and (vi) tangible personal or real
property damage resulting from Metavante's acts or omissions.
14.3. INDEMNIFICATION PROCEDURES. If any Third Party makes a claim
covered by this Section against an indemnitee with respect to which such
indemnitee intends to seek indemnification under this Section, such indemnitee
shall give notice of such claim to the indemnifying party, including a brief
description of the amount and basis therefor, if known. Upon giving such notice,
the indemnifying party shall be obligated to defend such indemnitee against such
claim, and shall be entitled to assume control of the defense of the claim with
counsel chosen by the indemnifying party, reasonably satisfactory to the
indemnitee. Indemnitee shall cooperate fully with, and assist, the indemnifying
party in its defense against such claim in all reasonable respects. The
indemnifying party shall keep the indemnitee fully apprised at all times as to
the status of the defense. Notwithstanding the foregoing, the indemnitee shall
have the right to employ its own separate counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of such indemnitee.
Neither the indemnifying party nor any indemnitee shall be liable for any
settlement of action or claim effected without its consent. Notwithstanding the
foregoing, the indemnitee shall retain, assume, or reassume sole control over
all expenses relating to every aspect of the defense that it believes is not the
subject of the indemnification provided for in this Section. Until both (a) the
indemnitee receives notice from indemnifying party that it will defend, and (b)
the indemnifying party assumes such defense, the indemnitee may, at any time
after ten (10) days from the date notice of claim is given to the indemnifying
party by the indemnitee, resist or otherwise defend the claim or, after
consultation with and consent of the indemnifying party, settle or otherwise
compromise or pay the claim. The indemnifying party shall pay all costs of
indemnity arising out of or relating to that defense and any such settlement,
compromise, or payment. The indemnitee shall keep the indemnifying party fully
apprised at all times as to the status of the defense. Following indemnification
as provided in this Section, the indemnifying party shall be subrogated to all
tights of the indemnitee with respect to the matters for which indemnification
has been made.
15. DISPUTE RESOLUTION
15.1. REPRESENTATIVES OF PARTIES. All disputes arising under or in
connection with this Agreement shall initially be referred to the Account
Representatives. If the Account Representatives are unable to resolve the
dispute within five (5) business days after referral of the matter to them, the
managers of the Account Representatives shall attempt to resolve the dispute.
resolve the dispute, senior executives of the parties shall attempt to resolve
the dispute. If, after five (5) days they are unable to If, after five (5) days
they are unable to resolve the dispute, the parties shall submit the dispute to
the chief executive officers of the parties for resolution. Neither party shall
commence legal proceedings with regard to a dispute until completion of the
dispute resolution procedures set forth in this Section 15.1, except to the
extent necessary to preserve its rights or maintain a superior position.
15.2. CONTINUITY OF PERFORMANCE. During the pendency of the dispute
resolution proceedings described in this Article 15, Metavante shall continue to
provide the Services so long as Customer shall continue to pay all undisputed
amounts to Metavante in a timely manner.
-5-
16. AUTHORITY
16.1. Metavante represents and warrants that:
A. Metavante has the right to provide the Services hereunder,
using all computer software required for that purpose.
B. Metavante is a corporation validly existing and in active
status under the laws of the State of Wisconsin. It has all the requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement. The execution, delivery and performance of this Agreement
has been duly authorized by Metavante and this Agreement is enforceable in
accordance with its terms against Metavante. No approval, authorization or
consent of any governmental or regulatory authorities is required to be obtained
or made by Metavante in order for Metavante to enter into and perform its
obligations under this Agreement.
16.2. Customer represents and warrants that It is a corporation validly
existing and in good standing under the laws of the state of its incorporation.
It has all the requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. The execution, delivery and
performance of this Agreement has been duly authorized by Customer and this
Agreement is enforceable in accordance with its terms against Customer. No
approval, authorization or consent of any governmental or regulatory authorities
required to be obtained or made by Customer in order for Customer to enter into
and perform its obligations under this Agreement.
17. CONFIDENTIALITY AND OWNERSHIP
17.1. CUSTOMER DATA. Customer shall remain the sole and exclusive owner
of all Customer Data and other Confidential Information (as hereinafter
defined), regardless of whether such data is maintained on magnetic tape,
magnetic disk, or any other storage or processing device. All such Customer Data
and other Confidential Information shall, however, be subject to regulation and
examination by the appropriate auditors and regulatory agencies to the same
extent as if such information were on Customers premises. "Customer Data" means
any and all data and information of any kind or nature submitted to Metavante by
Customer, or received by Metavante on behalf of Customer, in connection with the
Services.
17.2. METAVANTE SYSTEMS. Customer acknowledges that it has no rights in
any software, systems, documentation, guidelines, procedures and similar related
materials or any modifications thereof provided by Metavante, except with
respect to Customers use of the same during the Term to process its data.
17.3. CONFIDENTIAL INFORMATION. "Confidential Information" of a party
shall mean all confidential or proprietary information and documentation of such
party, whether or not marked as such, including without limitation with respect
to Customer, all Customer Data. Confidential Information shall not include: (i)
information which is or becomes publicly available (other than by the person or
entity having the obligation of confidentiality) without breach of this
Agreement; (ii) information independently developed by the receiving party;
(iii) information received from a third party not under a confidentiality
obligation to the disclosing party; or (iv) information already in the
possession of the receiving party without obligation of confidence at the time
first disclosed by the disclosing party. The parties acknowledge and agree that
the substance of the negotiations of this Agreement, and the terms of this
Agreement are considered Confidential Information subject to the restrictions
contained herein. Neither party shall use, copy, sell, transfer, publish,
disclose, display, or otherwise make any of the other party's Confidential
Information available to any Third Party without the prior written consent of
the other.
17.4. OBLIGATIONS OF THE PARTIES. Metavante and Customer shall hold the
Confidential Information of the other party in confidence and shall not disclose
or use such Confidential Information other than for the purposes contemplated by
this Agreement, and shall instruct their employees, agents, and contractors to
use the same care and discretion with respect to the Confidential Information of
the other party or of any Third Party utilized hereunder that Metavante and
Customer each require with respect to their own most confidential information,
but in no event less than a reasonable standard of care, including but not
limited to, the utilization of security devices or procedures designed to
prevent unauthorized access to such materials. Each party shall instruct its
employees, agents, and contractors of its confidentiality obligations hereunder
and not to attempt to circumvent any such security procedures and devices. Each
party's obligation under the preceding sentence may be satisfied by the use of
its standard form of confidentiality agreement, if the same reasonably
accomplishes the purposes here intended. All such Confidential Information shall
be distributed only to persons having a need to know such information to perform
their duties in conjunction with this Agreement.
17.5. SECURITY. Metavante shall be responsible for, and shall establish
and maintain safeguards against, any disaster, loss or alteration of the
Customer Data in the possession of Metavante. Such safeguards shall be no less
rigorous than that Metavante uses to protect its own data of a similar nature.
18. MANAGEMENT OF PROJECT
18.1. ACCOUNT REPRESENTATIVES. Each party shall cause an individual to
be assigned ("Account Representative") to devote time and effort to management
of the Services under this Agreement.
18.2. DEVELOPMENT PROJECTS AND TECHNICAL SUPPORT. Upon Customers
written request, Metavante will develop and provide to Customer a good faith
estimate of any additional charges which Customer may incur in connection with
the operation of any new software, major modification or enhancements developed
by Metavante or the acquisition of Third Party software, Nothing contained
herein shall obligate Metavante to develop enhancements requested by Customer.
19. REGULATORY COMPLIANCE
A. Customer shall be solely responsible for monitoring and
interpreting (and for complying with, to the extent such compliance requires no
action by Metavante) the federal and state laws, rules and regulations
pertaining to Customers business (the "Legal Requirements"). Based on Customers
Proper Instructions, Metavante shall select the processing parameter settings,
features and options
-6-
(collectively, the "Parameters") within Metavante's system that will apply to
Customer. Customer shall be responsible for determining that such selections are
consistent with the Legal Requirements and with the terms and conditions of any
agreements between Customer and its clients. In making such determinations,
Customer may rely upon the written descriptions of such Parameters contained in
the User Manuals. Metavante shall perform system processing in accordance with
the Parameters.
B. Subject to the foregoing, Metavante shall perform an on-going
review of federal laws, rules and regulations. Metavante shall maintain the
features and functions set forth in the User Manuals for each of the Services in
accordance with all changes in federal laws, rules and regulations applicable to
such features and functions, in a non-custom environment at no additional charge
to Customer. For any new federal laws, rules and regulations, Metavante will
perform a business review, with input from Metavante's customers and user
groups. If Metavante elects to support a new federal law, rule or regulation
through changes to the Metavante Software, Metavante shall develop and implement
modifications to the Services to enable Customer to comply with such new federal
laws, rules and regulations. In all other circumstances relating to regulatory
compliance of the Services, including state laws, rules and regulations, the
provisions of Section 5.2 above (New Services) shall apply.
C. In any event, Metavante shall work with Customer in developing
and implementing a suitable procedure or direction to enable Customer to comply
with federal and state laws, rules and regulations applicable to the Services
being provided by Metavante to Customer, including in those instances when
Metavante has elected to, but it is not commercially practicable to, modify the
Metavante Software prior to the regulatory deadline for compliance.
20. DISASTER RECOVERY
20.1. SERVICES CONTINUITY PLAN. Metavante shall maintain throughout the
Term of the Agreement a Services Continuity Plan (the "Plan") in compliance with
applicable regulatory requirements. "Disaster" shall have the meaning set forth
in the Plan. Review and acceptance of the Plan as may be required by any
applicable regulatory agency shall be the responsibility of Customer. Metavante
shall cooperate with Customer in conducting such reviews as such regulatory
agency may from time to time reasonably request. A detailed Executive Summary of
the Plan has been provided to Customer. Updates to the Plan shall be provided to
Customer without charge.
20.2. RELOCATION. If appropriate, Metavante shall relocate all affected
Services to an alternate disaster recovery site as expeditiously as possible
after declaration of a Disaster, and shall coordinate with Customer all
requisite telecommunications modifications necessary to achieve full
connectivity to the disaster recovery site, in material compliance with all
regulatory requirements.
20.3. RESUMPTION OF SERVICES. The Plan provides that, in the event of a
Disaster, Metavante will be able to resume the Services in accordance therewith
within the time periods specified in the Plan. In the event Metavante is unable
to resume the Services to Customer within the time periods specified in the
Plan, Customer shall have the right to terminate this Agreement without payment
of the Termination Fee upon written notice to Metavante delivered within
forty-five (45) days after declaration of such Disaster.
20.4. ANNUAL TEST. Metavante shall test its Plan by conducting one (1)
test annually and shall provide Customer with a description of the test results
in accordance with applicable laws and regulations.
21. GENERAL TERMS AND CONDITIONS
21.1. TRANSMISSION OF DATA. The responsibility and expense for
transportation and transmission of, and the risk of loss for, data and media
transmitted between Metavante and Customer shall be borne by Customer. Data lost
by Metavante following processing, including loss of data transmission, shall
either be restored by Metavante from its backup media or shall be reprocessed
from Customers backup media at no additional charge to Customer.
21.2. EQUIPMENT AND NETWORK. Customer shall obtain and maintain at its
own expense its own data processing and communications equipment as may be
necessary or appropriate to facilitate the proper use and receipt of the
Services. Customer shall pay all installation, monthly, and other charges
relating to the installation and use of communications lines between Customers
datacenter and the Operations Center. Metavante maintains and will continue to
maintain a network control center with diagnostic capability to monitor
reliability and availability of the communication lines used to access the
Services, but Metavante shall not be responsible for the continued availability
or reliability of such communications lines. Metavante agrees to provide
services to install, configure, and support the wide-area network to
interconnect Customer to the Operations Center.
21.3. RELIANCE ON DATA. Metavante will perform the Services described
in this Agreement on the basis of information furnished by Customer. Metavante
shall be entitled to rely upon any such data, information, or instructions as
provided by Customer. If any error results from incorrect input supplied by
Customer, Customer shall be responsible for discovering and reporting such error
and supplying the data necessary to correct such error to Metavante for
processing at the earliest possible time.
21.4. DATA BACKUP. Customer shall maintain adequate records for at
least ten (10) business days including (i) microfilm images of items being
transported to Metavante or (ii) backup on magnetic tape or other electronic
media where transactions are being transmitted to Metavante, from which
reconstruction of lost or damaged items or data can be made. Customer assumes
all responsibility and liability for any loss or damage resulting from failure
to maintain such records.
21.5. BALANCING AND CONTROLS. Customer shall (a) on a daily basis,
review all input and output, controls, reports, and documentation, to ensure the
integrity of data processed by Metavante; and (b) on a daily basis, check
exception reports to verity that all file maintenance entries and nondollar
transactions were correctly entered. Customer shall be responsible for
initiating timely remedial action to correct any improperly processed data which
these reviews disclose and Metavante will promptly reprocess such data.
21.6. USE OF SERVICES. Customer assumes exclusive responsibility for
the consequences of any Proper Instructions Customer may give Metavante, for
Customer's failure to properly access the Services in the manner prescribed by
Metavante, and for Customer's
-7-
failure to supply accurate input information. Customer agrees that, except as
otherwise permitted in this Agreement or in writing by Metavante, Customer will
use the Services only for its own internal business purposes to service its
banking customers and clients and will not sell or otherwise provide, directly
or indirectly, any of the Services or any portion thereof to any Third Party.
21.7. REGULATORY ASSURANCES. Metavante and Customer acknowledge and
agree that the performance of these Services will be subject to regulation and
examination by Customer's regulatory agencies to the same extent as if such
Services were being performed by Customer. Upon request, Metavante agrees to
provide any appropriate assurances to such agency and agrees to subject itself
to any required examination or regulation. Customer agrees to reimburse
Metavante for reasonable costs actually incurred due to any such examination or
regulation that is performed primarily for the purpose of examining Services
used by Customer.
A. Notice Requirements. Customer shall be responsible for
complying with all regulatory notice provisions to any applicable governmental
agency, which shall include providing timely and adequate notice to the Office
of Thrift Supervision, the Office of the Comptroller of the Currency, The
Federal Deposit Insurance Corporation, the Federal Reserve Board, or their
successors, as applicable (collectively, the "Federal Regulators"), as of the
Effective Date of this Agreement, identifying those records to which this
Agreement shall apply and the location at which such Services are to be
performed.
B. Examination of Records. The parties agree that the records
maintained and produced under this Agreement shall, at all times, be available
at the Operations Center for examination and audit by governmental agencies
having jurisdiction over the Customer's business, including any Federal
Regulator. The Director of Examinations of any Federal Regulator or his or her
designated representative shall have the right to ask for and to receive
directly from Metavante any reports, summaries, or information contained in or
derived from data in the possession of Metavante related to the Customer.
Metavante shall notify Customer as soon as reasonably possible of any formal
request by any authorized governmental agency to examine Customer's records
maintained by Metavante, if Metavante is permitted to make such a disclosure to
Customer under applicable law or regulations. Customer agrees that Metavante is
authorized to provide all such described records when formally required to do so
by a Federal Regulator.
C. Audits. Metavante shall cause a Third Party review of the
Operations Center and related internal controls, to be conducted annually by its
independent auditors. Metavante shall provide to Customer, upon written request,
one copy of the audit report resulting from such review. Remote datacenters used
by Metavante in providing some of the Services shall be reviewed by Metavante's
internal auditors in accordance with procedures and on a schedule satisfactory
to the Federal Regulator responsible for supervision of Metavante.
21.8. IRS FILING. Customer represents it has complied with all laws,
regulations, procedures, and requirements in attempting to secure correct tax
identification numbers (TINS) for Customer's payees and customers and agrees to
attest to this compliance by an affidavit provided annually. Customer authorizes
Metavante to act as Customers agent and sign on Customers behalf the Affidavit
required by the Internal Revenue Service on Form 4804, or any successor form.
Exhibit B (Attorney-in-Fact Appointment) and Exhibit C (Affidavit) shall be
executed by Customer contemporaneously with the execution of this Agreement.
Customer acknowledges that Metavante's execution of the Form 4804 Affidavit on
Customer's behalf does not relieve Customer of responsibility to provide
accurate TINS or liability for any penalties which may be assessed for failure
to comply with TIN requirements.
21.9. AFFILIATES. Customer agrees that it is responsible for assuring
compliance with this Agreement by those Affiliates receiving Services under this
Agreement. Customer agrees to be responsible for the submission of its
Affiliates' data to Metavante for processing and for the transmission to
Customer's Affiliates of such data processed by and received from Metavante.
Customer agrees to pay any and all fees owed under this Agreement for Services
rendered to its Affiliates.
21.10. FUTURE ACQUISITIONS. Customer acknowledges that Metavante has
established the Fee Schedule and enters into this Agreement on the basis of
Metavante's understanding of the Customers current need for Services and
Customers anticipated future need for Services as a result of internally
generated expansion of its customer base. If the Customer expands its operations
by acquiring Control of additional financial institutions or the Customer
experiences a Change in Control (as hereinafter defined), the following
provisions shall apply:
A. Acquisition of Additional Entities. If Customer acquires
Control after the date hereof of one or more bank holding companies, banks,
savings and loan associations or other financial institutions that are not
currently Affiliates, if requested by Customer, Metavante agrees to provide
Services for such new Affiliates and such Affiliates shall automatically be
included in the definition of "Customer"; provided that (a) the Conversion of
each new Affiliate must be scheduled at a mutually agreeable time (taking into
account, among other things, the availability of Metavante Conversion resources)
and must be completed before Metavante has any obligation to provide Services to
such new Affiliate; (b) the Customer will be liable for any and all Expenses in
connection with the Conversion of such new Affiliate; and (c) Customer shall pay
Conversion Fees in an amount to be mutually agreed upon with respect to each new
Affiliate. In no event shall Customer be required to convert any portion of such
acquired financial institution's data processing services to Metavante's systems
or pay any fee in lieu of Conversion.
B. Change in Control of Customer. If a Change in Control occurs
with respect to Customer, Metavante agrees to continue to provide Services under
this Agreement; provided that (a) Metavante's obligation to provide Services
shall be limited to the entities comprising the Customer prior to such Change in
Control and (b) Metavante's obligation to provide Services shall be limited in
any and all circumstances to the number of accounts and items processed in the
3-month period prior to such Change in Control occurring plus 25%.
C. If Customer acquires another financial institution that is not
currently an affiliate, and the new affiliate is converted to Customers system
in accordance with subparagraph A above, and the new affiliate, prior to such
acquisition, has been operating under an outsourcing agreement with Metavante,
Customer shall be required to pay normal processing fees in accordance with
Customers contract plus the lesser of (a) the new affiliate's termination fees
or (b) the difference of the Estimated Remaining Value of the new affiliate's
contract
-8-
less the increase in revenue from processing of the new affiliate under
Customers contract. If Customer chooses (b), payment will be spread over the
shorter of the remaining terms on Customers contract or the new affiliate's
contract.
22. MISCELLANEOUS PROVISIONS
22.1. GOVERNING LAW. The validity, construction and interpretation of
this Agreement and the rights and duties of the parties hereto shall be governed
by the internal laws of the State of Wisconsin, excluding its principles of
conflict of laws.
22.2. VENUE AND JURISDICTION. In the event of litigation to enforce the
terms of this Agreement, the parties consent to venue in an exclusive
jurisdiction of the courts of Milwaukee County, Wisconsin and the Federal
District Court for the Eastern District of Wisconsin. The parties further
consent to the jurisdiction of any federal or state court located within a
district which encompasses assets of a party against which a judgment has been
rendered, either through arbitration or litigation, for the enforcement of such
judgment or award against such party or the assets of such party.
22.3. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, together with the
exhibits and schedules hereto, constitutes the entire agreement between
Metavante and the Customer with respect to the subject matter hereof. There are
no restrictions, promises, warranties, covenants or undertakings other than
those expressly set forth herein and therein. This Agreement supersedes all
prior negotiations, agreements, and undertakings between the parties with
respect to such matter. This Agreement, including the exhibits and schedules
hereto, may be amended only by an instrument in writing executed by the parties
or their permitted assignees.
22.4. ASSIGNMENT. This Agreement may not be assigned by either party,
by operation of law or otherwise, without the prior written consent of the other
party, which consent shall not be unreasonably withheld, provided that (a)
Metavante's consent need not be obtained in connection with the assignment of
this Agreement pursuant to a merger in which Customer is a party and as a result
of which the surviving Entity becomes an Affiliate of another bank holding
company, bank, savings and loan association or other financial institution, so
long as the provisions of Section 21 .lO are complied with; and (b) Metavante
may freely assign this Agreement (i) in connection with a merger, corporate
reorganization or sale of all or substantially all of its assets, stock or
securities, or (ii) to any Entity which is a successor to the assets or the
business of the Metavante Corporation, provided that any such successor entity
shall, at the time of transfer, possess a capacity to perform under the terms of
this Agreement at least equal to the capacity then possessed by Metavante.
22.5. RELATIONSHIP OF PARTIES. The performance by Metavante of its
duties and obligations under this Agreement shall be that of an independent
contractor and nothing contained in this Agreement shall create or imply an
agency's relationship between Customer and Metavante, nor shall this Agreement
be deemed to constitute a joint venture or partnership between Customer and
Metavante.
22.6. NOTICES. Except as otherwise specified in the Agreement, all
notices, requests, approvals, consents and other communications required or
permitted under this Agreement shall be in writing and shall be personally
delivered or sent by (i) first class U.S. mail, registered or certified, return
receipt requested, postage pre-paid; or (ii) U.S. express mail, or other,
similar overnight courier service to the address specified below. Notices shall
be deemed given on the day actually received by the party to whom the notice is
addressed.
In the case of Customer: Columbia State Bank
1102 Broadway
Tacoma WA
Attn: Melanie Dressel, President
For Billing Purposes: Columbia Bank
Attn: Cyndi Smith
5210 74th Street West, Suite B
Lakewood, WA 98499
In the case of Metavante: Metavante Corporation
4900 West Brown Deer Road
Brown Deer WI 53223
Attn: Thomas J. McBride
Senior Vice President, Client Services
Division
Nonie J. Daroga
Senior Vice President and General Counsel
22.7. HEADINGS. Headings in this Agreement are for reference purposes
only and shall not effect the interpretation or meaning of this Agreement.
22.6. COUNTERPARTS. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original but all of
which together constitute one and the same agreement.
22.9. WAIVER. No delay or omission by either party to exercise any
right or power it has under this Agreement shall impair or be construed as a
waiver of such right or power. A waiver by any party of any breach or covenant
shall not be construed to be a waiver of any succeeding breach or any other
covenant. All waivers must be in writing and signed by the party waiving its
rights.
-9-
22.10. SEVERABILITY. If any provision of this Agreement is held by
court or arbitrator of competent jurisdiction to be contrary to law,
Severability. then the remaining provisions of this Agreement will remain in
full force and effect. Articles 11,13, and 17 and Sections 22.1,22.2 and 22.18
shall survive the expiration or earlier termination of this Agreement for any
reason.
22.11. ATTORNEYS' FEES AND COSTS. If any legal action is commenced in
connection with the enforcement of this Agreement or any instrument or agreement
required under this Agreement, the prevailing party shall be entitled to costs,
attorneys' fees actually incurred, and necessary disbursements incurred in
connection with such action, as determined by the court.
22.12. FINANCIAL STATEMENTS. Metavante agrees to furnish to the
Customer copies of the then-current annual report for the Metavante Corporation,
within 45 days after such document is made publicly available.
22.13. PUBLICITY. Neither party shall use the other party's name or
trademark or refer to the other party directly or indirectly in any Public&v.
media release, public announcement or public disclosure relating to this
Agreement or its subject matter, in any promotional or marketing materials,
lists or business presentations, without consent from the other party for each
such use or release in accordance with this Section, provided that Metavante may
include Customer's name in Metavante's customer list and may identify Customer
as its customer in its sales presentations and marketing materials without
obtaining Customers prior consent. Customer agrees that neither it, its
directors, officers, employees or agents shall disclose this Agreement or any of
the terms or provisions of this Agreement to any other party. Notwithstanding
the foregoing, at Metavante's request Customer agrees to issue a joint press
release prepared by Metavante to announce the relationship established by the
parties hereunder. Customer agrees that such press release shall be deemed
approved by Customer in the event that, within ten (10) business days of
receiving Metavante's proposed press release, Customer does not provide written
notice to Metavante describing in reasonable detail Customers objections to the
press release. All other media releases, public announcements, and public
disclosures by either party relating to this Agreement or the subject matter of
this Agreement (each, a "Disclosure"), including promotional or marketing
material, but not including (i) announcements intended solely for internal
distribution, or (ii) disclosures to the extent required to meet legal or
regulatory requirements beyond the reasonable control of the disclosing party,
shall be subject to review and approval, which approval shall not be
unreasonably withheld, by the other party prior to release. Such approval shall
be deemed to be given if a party does not object to a proposed Disclosure within
ten (10) business days of receiving same. Disputes regarding the reasonableness
of objections to the joint press release or any Disclosures shall be subject to
the Dispute Resolution Procedures of Section 15.1.
22.14. SOLICITATION. Neither party shall solicit the employees of the
other party during the Term of this Agreement, for any reason,
22.15. NO THIRD PARTY BENEFICIARIES. Each party intends that this
Agreement shall not benefit, or create any right or cause of action in or on
behalf of, any person or entity other than the Customer and Metavante.
22.16. FORCE MAJEURE. Notwithstanding any provision contained in this
Agreement, neither party shall be liable to the other to the extent fulfillment
or performance if any terms or provisions of this Agreement is delayed or
prevented by revolution or other civil disorders; wars; acts of enemies;
strikes: lack of available resources from persons other than parties to this
Agreement; labor disputes; electrical equipment or availability failure; fires;
floods; acts of God; federal, state or municipal action; statute; ordinance or
regulation; or, without limiting the foregoing, any other causes not within its
control, and which by the exercise of reasonable diligence it is unable to
prevent, whether of the class of causes hereinbefore enumerated or not. This
clause shall not apply to the payment of any sums due under this Agreement by
either party to the other.
22.17. CONSTRUCTION. Metavante and Customer each acknowledge that the
limitations and exclusions contained in this Agreement have been the subject of
active and complete negotiation between the parties and represent the parties'
voluntary agreement based upon the level of risk to Customer and Metavante
associated with their respective obligations under this Agreement and the
payments to be made to Metavante and the charges to be incurred by Metavante
pursuant to this Agreement. The parties agree that the terms and conditions of
this Agreement shall not be construed in favor of or against any party by reason
of the extent to which any party or its professional advisors participated in
the preparation of this document.
22.18. WAIVER OF JURY TRIAL. Each of Customer and Metavante hereby
knowingly, voluntarily and intentionally waives any and all rights it may have
to a trial by jury in respect of any litigation based on, or arising out of,
under, or in connection with, this Agreement or any course of conduct, course of
dealing, statements (whether verbal or written), or actions of Metavante or
Customer, regardless of the nature of the claim or form of action, written
contract or tort, including negligence.
-10-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
their names as of the date first above written.
METAVANTE CORPORATION ("Metavante")
By: Michael E. Touhey
Name: Michael E. Touhey
Title: President, Market Solutions and Products
By: Owen J. Sullivan
Name: Owen J. Sullivan
Title: President, Client Development and Services
COLUMBIA STATE BANK ("Customer")
By: Melanie Dressel
Name: Melanie Dressel
Title: President
-11-
EXHIBIT A
AUTHORIZATION AGREEMENT
The undersigned ("Customer") hereby authorizes Metavante Corporation,
("Metavante") to initiate debit entries and to initiate, if necessary, credit
entries and adjustments for any excess debit entries or debit entries made in
error, to Customer's account indicated below and the depository named below, to
debit and/or credit the same such account.
This authority is to remain in full force and effect for the period
coinciding with the term (and any renewals thereof) of the Outsourcing Agreement
made the 1st day of January, 2001, and any addenda thereto (the "Agreement'),
pursuant to the terms and conditions specified in the Agreement.
DEPOSITORY NAME: Columbia State Bank
----------------------------------------
ADDRESS: 1102 Broadway Plaza
----------------------------------------
CITY/STATE/ZIP: Tacoma, WA 98402
----------------------------------------
TELEPHONE NUMBER: 253-305-1900
----------------------------------------
ROUTING TRANSIT NUMBER: 125108272
----------------------------------------
ACCOUNT NUMBER: 9000000100
----------------------------------------
COLUMBIA STATE BANK
("CUSTOMER")
By: Melanie Dressel
Name: Melanie Dressel
Title: President
-12-
EXHIBIT B
ATTORNEY-IN-FACT APPOINTMENT
Customer hereby appoints Metavante Corporation ("Metavante") as: (1)
customer's attorney-in-fact and empowers Metavante to authorize the Internal
Revenue Service (IRS) to release information return documents supplied to the
IRS by Metavante to states which participate in the "Combined Federal/State
Program"; and (2) Customers agent to sign on Customer's behalf the Affidavit
required by the Internal Revenue Service on Form 4884, or any successor form.
COLUMBIA STATE BANK
("CUSTOMER")
By: Melanie Dressel
Name: Melanie Dressel
Title: President
-13-
EXHIBIT C
AFFIDAVIT
STATE OF WASHINGTON
COUNTY OF PIERCE
I, Melanie J. Dressel, being first duly sworn, on oath, depose and say:
1. I am an employee of Columbia State Bank, I have personal knowledge
of my employer's practices with regard to procuring and reporting tax
identification numbers (TINS) and authority to execute this Affidavit on my
employer's behalf,
2.Columbia State Bank has complied with all laws, regulations,
procedures, and requirements in attempting to secure correct TINS for its
payees. This compliance has been pursued with due diligence, and any failure to
secure correct TINS is due to reasonable cause.
COLUMBIA STATE BANK
("Customer")
By: Melanie J. Dressel
Name: Melanie J. Dressel
Title: President & CEO
Subscribed and sworn to before me
this 30th day of January, 2000.
Leslie R. Burton, Notary Public
My Commission expires: 8-29-01
-14-