DATA PROCESSING SERVICES AGREEMENT
THIS AGREEMENT, made on this _____ day of __________, 1999
(the "Effective Date"), by and between XXXxxxx.XXX INC., doing
business as ("SLM") and Colonial National Bank (Customer).
WHEREAS, Customer desires to retain the data processing
services of SLM and SLM is willing to provide data processing
services to Customer on certain terms and conditions.
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter set forth, the parties hereto agree as
follows:
1. Services. SLM shall: provide Customer at SLM's place
or places of business and at Customer's place or places of
business, as set forth below, all services as set forth in the
attached Schedules, incorporated herein by reference (the
"Services"); train the Customer and its employees in the use and
interpretation of all input, output and reports produced by SLM
for Customer's use; furnish to Customer special reports and
other additional services upon such terms, at such times and for
such fees as shall from time to time hereafter be agreed upon by
SLM and Customer, and provide at Customer's expense, such
information concerning the services rendered under this
Agreement as Customer's auditors may request upon the Customer's
written authorization.
2. Term. The initial term of this Agreement shall be for
a period of sixty (60) months and shall commence on the date of
conversion, evidenced by an executed copy of the Conversion
Completion Signoff Sheet ("Conversion Date"). Thereafter, this
Agreement shall be automatically extended for a period of six
(60) months at the then current fees unless either party
notifies the other party in writing at least six (6) months
prior to the end of the initial term or any extension thereof.
3. Fees.
a. Customer hereby agrees to pay SLM the fees and
charges set forth in the attached Schedules, incorporated herein
by reference. Full payment shall be due within ten (10) days of
the date of the invoice provided to the Customer. In addition,
the parties hereto agree that at any time subsequent to the
expiration of the twelve (12) month period following the date of
execution of this Agreement, SLM may, upon ninety (90) days
notice to Customer (which notice may be given within the initial
twelve (12) month period), increase the fees and charges set
forth in the Schedules and the Pricing Schedule as amended from
time to time.
b. In addition to the fees set forth in paragraph 3a
above, Customer hereby agrees to reimburse SLM for any special
or unusual expense incurred by SLM at Customer's request,
including services relating to Customer's audit requirements.
c. In the event that Customer fails to pay any or all
amounts due SLM within thirty (30) days of the date of an
invoice, Customer agrees to pay SLM monthly interest at the rate
equal to the lesser of one and three quarters percent (1 3/4%)
or the highest rate permitted by applicable law, on all amounts
outstanding, together with reasonable lawyer's fees and costs
incurred in the collection thereof.
d. In the event that SLM so requests in writing,
Customer agrees to post a security deposit in an amount equal to
one (1) month's processing fee as estimated by SLM.
4. Duties and Representations of Customer.
a. Customer shall furnish data to SLM in a form
acceptable to SLM at the time provided in the attached
Schedules.
b. Customer shall extend the time requirements to
allow for any rescheduling of Customer's work caused by
Customer's failure to furnish its data in accordance with the
attached Schedules, or on incomplete or incorrect forms, and to
pay all expenses of such rescheduling.
c. Customer shall reject in writing any incorrect
report within three (3) business days after receipt of same and
that failure to so reject shall constitute Customer's acceptance
of the report.
d. Customer shall pay SLM for any tax, except income,
real estate or occupation tax, which shall, at any time, become
payable in respect of this Agreement or for the Services
provided hereunder.
e. Customer shall permit SLM to retain Customer's
data except as otherwise provided herein, whenever Customer is
in default with regard to any payment required hereunder and
Customer hereby grants SLM a security interest in such data.
f. Customer shall be responsible for and safeguard
documents in transit, unless otherwise provided in the attached
Schedules.
g. Customer hereby indemnifies and holds SLM harmless
from liability, and shall not seek to hold SLM responsible for
delay in providing or failing to provide Services if due to
causes or conditions beyond SLM's reasonable control, or for any
inaccuracy, inadequacy, or omission in any data, information or
instructions furnished by the Customer.
h. Customer hereby indemnifies and holds SLM harmless
from any and all liability, including reasonable lawyer's fees
arising from a claim asserted with respect to this Agreement or
the Services provided hereunder, by any employee of Customer or
any other third party, none of whom shall have any rights or
claims against SLM by virtue of this Agreement
i. Customer agrees that in the event this Agreement
is terminated early by either party for any reason, Customer
shall purchase at cost from SLM all Customer forms custom made
for the Customer in the SLM inventory, at the time of early
termination and to pay SLM the average of the last three months
of full production billing multiplied by the number of months
remaining on the Agreement.
j. Customer warrants and represents that it will be
free, as of the Conversion Date, of any contractual obligation
that would prevent the Customer from entering into this
Agreement, and that SLM's offer to provide Services in no way
caused or induced the Customer to breach any contractual
obligation.
k. Customer shall conduct a regular review of system
access by its employees, review of authorized users and notify
SLM in writing, of any errors, breaches of security or
unauthorized access to the system on a timely basis.
l. SLM shall permit Customer's duly authorized
representative to examine procedures, internal controls and
accounting related functions as they apply to Services provided
SLM under this Agreement. Properly executed written
authorization shall be submitted to SLM by Customer.
m. Customer shall be responsible for confirmation
that adequate liability coverage is in place to protect Customer
and SLM from Customer's employee dishonesty while processing
Customer's data. Customer shall furnish proof of such coverage
upon signing of this Agreement
n. Customer agrees that in the event Customer
requests programming changes to the system for Customer's
specific benefit, Customer shall submit such request in writing,
defining such changes requested and duly authorize such changes
to be made. The cost for such changes shall be charged to
Customer at SLM's then current time and materials rates.
5. Warranties of SLM. SLM hereby warrants and represents
that it will exercise ordinary care in processing the Customer's
work and that it will hold in confidence all information
relating to the assets, liabilities, business and affairs of the
Customer received by SLM in rendering the Services under this
Agreement, except to the extent that disclosure is authorized by
the Customer or compelled by governmental regulation or legal
process.
6. Limitation of Liability. SLM's liability hereunder for
damages, regardless of the form of action, shall not exceed the
total amount paid for Services for one month under the attached
Schedules or in the authorization for the particular service if
not pursuant to a Schedule. This shall be Customer's exclusive
remedy. Furthermore, SLM shall not be liable for any lost
profits, consequential damages or for any claim or demand
asserted against Customer by any other party. No action,
regardless of form, arising out of the Services under this
Agreement may be brought by either party more than two years
after the cause of action has accrued, except that an action for
nonpayment must be brought within one year of the date of last
payment. There are no warranties other than those described in
this Agreement.
7. Miscellaneous.
a. All specifications, tapes, programs, concepts,
expertise and procedures developed or utilized by SLM for
Customer, except as provided by Customer, are and remain the
sole property of SLM unless otherwise specifically provided
herein.
b. All master files shall remain the property of
Customer unless provided otherwise in the attached Schedules.
Master files will be provided at SLM's then current standard
rate to the Customer in such machine-readable form as SLM
produces in its ordinary course of business, if requested by the
Customer in the event of termination.
c. This Agreement, together with all Schedules,
appendices or other attachments referenced herein, constitutes
the entire agreement between the parties hereto and supersedes
all proposals, oral and written, between the parties on this
subject.
d. This Agreement shall be governed by the laws of
the State of Kansas as set forth herein. Any action to enforce
any provision of this Agreement may be filed in the Xxxxxxx
County, Kansas District Court or other court of competent
jurisdiction located in Kansas.
e. Any invalidity, in whole or in part, of any
provision of this Agreement shall not affect the validity of any
other of its provisions.
f. Any notice or other communication hereunder shall
be in writing.
g. All times referred to in the Schedule are Eastern
Standard Time.
h. No term or provision hereof shall be deemed waived
and no breach excused unless such waiver or consent shall be in
writing and signed by the party claimed to have waived or
consented.
i. The Data Processing Services Agreement and
Schedules attached are part of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed and each warrants and represents that the person
whose signature appears below has been and is on the date of
this Agreement duly authorized by necessary and appropriate
corporate action to execute this Agreement.
XXXxxxx.xxx INC. COLONIAL NATIONAL BANK
By:________________________ By:________________________
XXXxxxx.xxx
Processing Proposal for
Colonial National Bank
Haddonfield, New Jersey
11/15/1999 (Revised: 12/99)
ESTIMATED MONTHLY CORE PROCESSING FEES Schedule Units Rate Cost
-------------------------------------- -------- ----- ---- ----
CENTRAL INFORMATION FILE A 1 $ 600 $ 600
DEMAND DEPOSIT ACCOUNTING B
Per Account 0.19 -
Per Item 0.03 -
SAVINGS ACCOUNTING C
Per Open Account 0.15 -
Per Closed Account 0.08 -
CERTIFICATES OF DEPOSIT D
Per Open Account 0.30 -
Per Closed Account 0.14 -
CONSOLIDATED LOANS F
Per Open Account 0.75 -
Per Closed Account 0.17 -
MORTGAGE LOANS N
Per Open Account 0.75 -
Per Closed Account 0.17 -
SAFE DEPOSIT BOX K
Per Account 0.17
MISCELLANEOUS PROCESSING
General Ledger, fully integrated H 1 200.00 200
Credit Bureau Tape 1 30.00 30
Class Optical Report Imaging
(1-10 terminals/location) AC 1 350.00 350
Workstation Communications Ports 14 27.00 378
MicroSOLV workstations AS 10 10.00 100
ATM on-line interface AU 1 100.00 100
Debit Card on-line interface AU 1 200.00 200
Disaster Recovery $50 + $1/mil U 7 1.00 57
Account Analysis (per account, $125 min) AA 1 125.00 125
Voice Response System -
Regency Real-Time Interface AR 1 30.00 30
ACH Origination (per run per company) AJ 1 15.00 15
Asset/Liability Repricing Report G 1 125.00 125
Laser Pro Loan Interface AO 1 75.00 75
Deposit Platform (1-4 terminals) AG 1 200.00 200
Relationship Profitability AI 1 75.00 75
ODBC Dictionaries AL 1 125.00 125
ODBC Dictionaries (Per Concurrent User/Month) AL 1 25.00 25
Express Teller AD 4 20.00 80
Credit Reserve 0 N/C
Account Reconciliation (internal accounts) AB 1 45.00 45
E-Mail (per user) AM 2 15.00 30
Call Reporter II or III interface AN 1 50.00 50
Accounts Payable AP 1 125.00 125
Stockholder Management 1 25.00 25
Loan Origination System (1-4 users) W 1 500.00 500
Internet Banking AX 1 1,500.00 1,500
Audit Confirmation (.10/notice) 1 25.00 25
Total Estimated Monthly Processing Fees $ 5,190
ESTIMATED ONE-TIME FEES
-----------------------
Training and Implementation Fees $30,000
Web Page Design (Basic) AX $ 5,000
Impromtu Administrators License $ 1,295
Impromtu User Licenses 1 695 $ 695
Computer Hardware TBD
Express Teller Hardware, Software &
Installation TBD
Document Management 1 7,500 $ 7,500
Automated Voice Response, Regency/Real Time AR 1 5,000 $ 5,000
Deposit Platform Interface & License AG 1 5,000 $ 5,000
Bankers Systems, Deposit/Loan License AO 1 5,000 $ 5,000
Loan Origination System W 1 2,500 $ 2,500
Signature Capture AE 1 2,000 $ 2,000
Account Reconciliation AB 1 2,000 $ 2,000
ATM Online Interface AU 1 2,500 $ 2,500
Debit Card Online Interface AU 1 2,500 $ 2,500
Subtotal Estimated One-Time Fees $70,990
TELECOMMUNICATIONS & EQUIPMENT
------------------------------
Telecommunications Equipment (Cabling &
Frame Relay) TBD
Telecommunications installation fees TBD
Telecommunications first years maintenance TBD
Subtotal Telecommunications and Equipment $ -
Total Estimated One-time Fees & Telecommunications $70,990
=======
Five Year Monthly Amortization TBD
=======
ITEM PROCESSING
---------------
Example
Image Capture all Inclearings I 26,146 0.0300 $ 784.38
Exception Pull 26,146 0.0075 $ 196.10
Statement Print per Page 4,556 0.0200 $ 91.12
Archive 26,146 0.0150 $ 392.19
Statement Preparation 26,146 0.0100 $ 261.46
Laser Forms 4,556 0.0200 $ 91.12
Envelopes 2,731 0.0300 $ 81.93
Statement Mail 2,731 0.0600 $ 163.86
Return Processing & Qualifications 84 2.4500 $ 205.80
Remote Archive Access 1 100.00 $ 100.00
TOTAL $2,367.96
Conversion & Training One Time Fee $ 7,500
Additional Charges:
------------------
Statement inserts $.0125 per insert per statement
Off-line research $1.50 per item
Custom printed forms & statements
at 10% over cost
Postage
Transportation fees
Communications & Line costs
Other Services
--------------
Non-Image Intercept $0.0225
POD (Proof of Deposit) $0.05
CD-ROMs $12.50
*Postage, Delivery, Courier & applicable taxes are the customer responsibility
Proposal Summary
Estimated Monthly Core Processing $ 5,190
Estimated Monthly Item Processing $ 2,368
TOTAL MONTHLY PROCESSING FEES $ 7,558
Estimated One Time Core Processing Fees $70,990
does not include hardware and
cabling cost at this time
Estimated One Time Item Processing Fees $ 7,500
TOTAL ONE TIME FEES $78,490
NOTES:
All fees are subject to applicable sales and use taxes.
Bank pays for custom forms and courier expenses.
Bank pays for data communications costs, including installation.
Bank pays for all travel, lodging, and per diem.
TBD - To Be Determined
Prices Quoted are valid for 30 days from the date of this
proposal.
SCHEDULE Z TO DATA
PROCESSING SERVICES AGREEMENT
THIS SCHEDULE Z is incorporated by reference in and made a
part of the Data
Processing Services Agreement (the "Agreement")
between Colonial National Bank and XXXxxxx.xxx Inc. ("SLM"). All
capitalized terms used herein shall have the meaning given to
them in the Agreement. The provisions of this Schedule Z
supersedes and replaces the terms of the Agreement, and in the
case of any conflict between the terms of the Agreement and this
Schedule, the terms of this Schedule shall prevail.
1. Section 2 of the Agreement shall be amended and
restated to read in full as follows:
"Term. The initial term of this Agreement shall be
for a period of thirty-six (36) months and shall
commence on the Effective Date. Thereafter, this
Agreement shall be automatically extended for a
period of twelve (12) months at the then current
fees unless either party notifies the other party
in writing at least six (6) months prior to the
end of the initial term or any extension thereof,
except as set forth below."
2. Section 3(a) of the Agreement shall be amended and
restated to read in full as follows:
"Customer hereby agrees to pay SLM the fees and
charges set forth in the attached Schedules,
incorporated herein by reference. Full payment
shall be due within thirty (30) days of the
date of the invoice provided to the Customer.
In addition, the parties hereto agree that at
any time subsequent to the expiration of the
twenty-four (24) month period following the
date of execution of this Agreement, SLM may,
upon ninety (90) days notice to Customer
(which notice may be given within the initial
twenty-four (24) month period), increase the
fees and charges set forth in the Schedules and
the Pricing Schedule as amended from time to time;
provided, however, that at any time within ninety
(90) days after receipt of such notice, Customer
may terminate this Agreement on ninety (90)days
notice to SLM."
3. Section 3(c) shall be amended to change the monthly
interest rate to one percent (1%).
4. Section 3(d) shall be deleted in its entirety.
5. Section 4(a) shall be amended to insert the word
"reasonably" immediately before the word "acceptable."
6. Section 4(e) shall be deleted in its entirety.
7. Section 4(f) shall be amended to insert the word
"Customer's" immediately before the word "documents."
8. Section 4(g) shall be amended to add the phrase "and to
the extent" after the word "if' and before the word "due," and
to insert the following phrase immediately after the words "from
liability,":
"except for any liability resulting from the
actions of SLM or its vendors, subcontractors
and agents,"
9. Section 4(h) shall be amended and restated to read in
full as follows
"No employee of Customer or any other third party
shall have any rights or claims against SLM by
virtue of this Agreement."
10. Section 4(i) shall be amended to delete the phrase "of
the last three months of' and insert the word "monthly" in its
place; to add the phrase "over the three months prior to
termination" after the word "billing"; and to delete the phrase
"the number of months remaining in the Agreement" and insert in
its place "twelve, except if such early termination is (i) due
to the breach of this Agreement by SLM or (ii) pursuant to
Section 3(a) of the Agreement.
11. Section 40) shall be amended to add "and SLM each"
after the word "Customer" and before the word "warrant," and to
thereafter substitute the word "it" for the words "the
Customer."
12. Section 4(k) shall be amended to add the phrase "and
SLM each" immediately after the word "Customer," and to delete
"SLM" and to substitute in its place the phrase "the other
party."
13. Section 4(l) shall be amended to add the phrase "and
any regulatory agency's" after the word "Customer's" and before
the word "duly."
14. Section 4(m) shall be amended and restated to read in
full as follows:
"Customer and SLM shall each be responsible to
the other for confirmation that each has adequate
liability coverage in place to protect Customer
and SLM from their respective employees' dishonesty
while processing Customer's data. Both parties shall
furnish proof of such coverage prior to the date the
Customer opens for business."
15. Section 5 shall be amended to substitute the word
"due" for the word "ordinary," and to add the phrase "the
provision of the services and in" after the words "care in" and
before the word "processing."
16. The Agreement is amended to add the following as
Section 6:
Duties of SLM
(a) SLM shall provide training, training aides, user
manuals, and other documentation for Customer's use as SLM finds
reasonably necessary to enable Customer personnel to become
familiar with the Services. All such training and manuals remain
SLM's property.
(b) SLM and the Services will operate in all material
respects in accordance with the specifications provided to the
Customer. Notwithstanding the foregoing, SLM shall be
responsible for all losses and damages suffered by Customer
(subject to the limitations of liability as set forth in
Section 7 below) caused by SLM or anyone acting by, through or
on behalf of SLM regardless of whether this materiality standard
has been breached.
(c) SLM has evaluated its system's capacity requirements
as they relate to the Customer's anticipated processing volumes,
and warrants that it has adequate capacity to accommodate
Customer's current and anticipated future account and
transaction volumes. SLM agrees to maintain and manage the
capacity of its system to accommodate Customer's anticipated
account and transaction volumes. Customer shall have the right
to appoint an independent outside consultant to verify the SLM
system capacity relative to Customer's anticipated requirements,
and in the event such consultant determines that SLM does not
possess adequate capacity, Customer shall notify SLM in writing,
of such finding, and SLM shall have ninety (90) days to provide
such additional capacity. In the event SLM does not provide such
additional capacity within the above time period, in addition to
any other fights or remedies that Customer may have, Customer
may terminate this Agreement.
(d) SLM represents and warrants that it owns or has a
license to furnish all equipment and/or software comprising its
system and to perform the Services. SLM shall, at its sole cost
and expense, indemnify the Customer and hold it harmless against
any claim or action that alleges that SLM's system use infringes
a United States patent, copyright, or other proprietary right of
a third party.
(e) Each party (the "Indemnitor")shall indemnify, defend
and hold harmless the other from and against and with respect to
any claim, liability, obligation, loss, damage, deficiency,
assessment, encumbrance, judgment, cost, expense (including
without limitation reasonable attorneys' fees and costs and
expenses incurred in preparation and defending against or
prosecuting any litigation, claim, action, suit, proceeding, or
demand) of any kind or character, arising out of or in any
manner incident, relating, or attributable to any inaccuracy,
breach, or failure by the Indemnitor to perform or observe the
representations, warranties and covenants contained herein.
(f) In the event of a processing or computational error
or other default caused by SLM personnel, systems or equipment,
SLM shall correct the data or information and/or reprocess the
affected item or report at no additional cost to Customer as
promptly as possible.
(g) SLM maintains a Disaster Recovery Plan for each
Service and shall continue to maintain such Disaster Recovery
Plan for each Service at all times during the term of this
Agreement. Customer shall have access to a current copy of all
such Disaster Recovery Plans at all times during the term of
this Agreement. SLM shall test each Disaster Recovery Plan
periodically, but not less often then once every eighteen (18)
months. SLM warrants that will it comply in all material
respects with the terms of each Disaster Recovery Plan.
17. Section 6 shall be renumbered Section 7 and Section 7
shall be renumbered Section 8.
18. The first sentence of Section 7 shall be amended to
delete the phrase "one month" and to add the following:
"six months (or if six months of Services have
not been rendered by SLM to Customer, the amount
paid for the most recent month multiplied by six)."
19. The second sentence of Section 8(d) shall be amended to
add the phrase "federal or state" after the word "other" and
before the word "court," and to add the phrase "or New Jersey"
immediately after the words "located in
Kansas."
IN WITNESS WHEREOF, the parties hereto have caused this
Schedule to the Agreement to be executed by their undersigned
duly authorized officers as of the Effective Date.
COLONIAL NATIONAL BANK
(IN ORGANIZATION).
By:_______________________________
Xxxxxx X. Xxxxxxxxx, President
and Chief Executive Officer
XXXXXXX.XXX INC.
By:_______________________________
Name:
Title:
