This document contains proprietary and confidential information of Fiserv Solutions, Inc. and may not be copied, published, disclosed or distributed without the express
written consent of Fiserv Solutions, Inc. The material in this document, including terms, procedures, fees and other conditions, comprise an agreement to consider which will remain valid for ninety (90) days from July 22, 2003.
AGREEMENT dated as of July 22, 2003 (“Agreement”) between FISERV SOLUTIONS, INC., a Wisconsin corporation
(“Fiserv”), and COMMUNITY NATIONAL BANK, (“Client”).
Fiserv and Client hereby agree as follows:
1. Term. The initial term of this Agreement shall end sixty two (62) Months following the date Fiserv Services (as defined below) are first used by Client and, unless written notice of non-renewal is provided
by either party at least 210 days prior to expiration of the first thirty six (36) months of the initial term or any renewal term or one hundred eighty days (180) during the final twenty six (26) months. This Agreement shall automatically renew for
additional term(s) of five (5) years. This Agreement shall be effective on the day services are first provided to Client by Fiserv (“Effective Date”).
2. Services. (a) Services Generally. Fiserv, itself and through its affiliates, agrees to provide Client, and Client agrees to obtain
from Fiserv services (“Services”) and products (“Products”) (collectively, “Fiserv Services”) described in the attached Exhibits:
Exhibit A – Account Processing Services
Exhibit B – Item Processing Services
Exhibit C – EFT Services
Exhibit D – Mortgage Processing Services
Exhibit E – BankLink Products and Services
Exhibit F – Wire Transfer
Exhibit G – ACH Services
Exhibit H – Development Services
Exhibit I – Implementation Services
Exhibit J – HRIS Services
Exhibit K – Card and Fulfillment Services
Exhibit L – Material Purchased Through Fiserv
Exhibit M – Software Products
Exhibit N – Support Services
Exhibit O – Internet and Remote Banking Services
Exhibit P – Credit Processing Services
Exhibit Q – Professional Services
Exhibit R – Insurance Processing
Exhibit S – Stored Value Transaction Processing Services
Exhibit T – Lease Processing Services
The Exhibits set forth specific terms and conditions applicable to the Services and/or Products, and, where applicable, the Fiserv affiliate so
performing. Client may select additional services and products from time to time by incorporating an appropriate Exhibit to this Agreement.
(b) Implementation Services. Fiserv will provide services (i) to convert Client’s existing applicable data and/or information to the Fiserv
Services; and/or (ii) to implement the Fiserv Services. These activities are referred to as “Implementation Services”. Client agrees to cooperate with Fiserv in connection with Fiserv’s provision of Implementation Services and to
provide all necessary information and assistance to facilitate the conversion. Client is responsible for all out-of-pocket expenses associated with Implementation Services. Fiserv will provide Implementation Services as required in connection with
(c) Training Services. Fiserv shall
provide training, training aids, user manuals, and other documentation for Client’s use as Fiserv finds necessary to enable Client personnel to become familiar with Fiserv Services. If requested by Client, classroom training in the use and
operation of Fiserv Services will be provided at a training facility designated by Fiserv. All such training aids and manuals remain Fiserv’s property.
3. Fees for Fiserv Services. (a) General. Client agrees to pay Fiserv:
(i) Fees for Fiserv Services for the month as specified in the Exhibits;
(ii) out-of-pocket charges for the month payable by Fiserv
for the account of Client; and
(as defined below) thereon (collectively, “Fees”).
timely reconcile Fees paid by Client for the Fiserv Services for the month and the fees and charges actually due Fiserv based on Client’s actual use of Fiserv Services for such month. Fiserv shall either issue a credit to Client or provide
Client with an invoice for any additional fees or other charges owed. Fiserv may change the amount of Fees billed to reflect appropriate changes in actual use of Fiserv Services. Fees may be increased from time to time as set forth in the Exhibits
A(2), and B(3) respectively. Upon 60 days written notification to and acceptance by Client, Fiserv may increase its fees in excess of amounts listed in the Exhibits only in the event that Fiserv is required to implement major system enhancements to
comply with changes in law, government regulation, or industry practices.
(b) Additional Charges. Fees for out-of-pocket expenses, such as telephone, microfiche, courier, and other charges incurred by Fiserv for goods or services obtained by Fiserv on
Client’s behalf shall be billed to Client at cost plus the applicable Fiserv administrative fee as set forth in the
Exhibits. Such out-of-pocket expenses may be changed from time to time upon notification of a fee change from a vendor/provider.
(c) Taxes. Fiserv shall add to each invoice any sales, use, excise, value added, and other taxes and duties however designated that are levied by
any taxing authority relating to the Fiserv Services (“Taxes”). In no event shall “Taxes” include taxes based upon Fiserv’s net income. The Fees do not include, and Client shall be responsible for, furnishing transportation
or transmission of information between Fiserv’s service center(s), Client’s site(s), and any applicable clearing house, regulatory agency, or Federal Reserve Bank.
(d) Payment Terms. Estimated Fees are due and payable monthly upon receipt of invoice. Client shall pay Fiserv
through the Automated Clearing House. In the event any amounts due remain unpaid beyond the 30th day after payment
is due, Client shall pay a late charge of 1.5% per month. Client agrees that it shall neither make nor assert any right of deduction or set-off from Fees on invoices submitted by Fiserv for Fiserv Services.
4. Access to Fiserv Services. (a) Procedures. Client agrees to
comply with applicable regulatory requirements and procedures for use of Services established by Fiserv.
(b) Changes. Fiserv continually reviews and modifies Fiserv systems used in the delivery of Services (the “Fiserv System”) to improve
service and comply with government regulations, if any, applicable to the data and information utilized in providing Services. Fiserv reserves the right to make changes in Services, including but not limited to operating procedures, type of
equipment or software resident at, and the location of Fiserv’s service center(s). Fiserv will notify Client 60 days in advance of any material change that affects Client’s normal operating procedures, reporting, or service costs prior to
implementation of such change. Should Client deem that such change significantly affects its normal operating procedures, reporting or service costs to the extent that Client cannot accept the change, then Client may invoke its right terminate this
Agreement for Convenience in accordance with the termination fee schedule designated in 11(h).
(c) Communications Lines. Fiserv shall order the installation of appropriate communication lines and equipment to facilitate Client’s access to Services. Client understands and agrees to pay charges
relating to the installation and use of such lines and equipment as set forth in the Exhibits.
(d) Terminals and Related Equipment. Client shall obtain necessary and sufficient terminals and other equipment, approved by Fiserv and compatible with the Fiserv System, to transmit and receive data and
information between Client’s location(s), Fiserv’s service center(s), and/or other necessary location(s). Fiserv and Client may mutually agree to change the type(s) of terminal and equipment used by Client.
5. Client Obligations. (a) Input. Client shall be solely
responsible for the input, transmission, or delivery to and from Fiserv of all information and data required by Fiserv to perform Services unless Client has retained Fiserv to handle such responsibilities, as specifically set forth in the Exhibits.
The information and data shall be provided in a format and manner approved by Fiserv. Client will provide at its own expense or procure from Fiserv all equipment, computer software, communication lines, and interface devices required to access the
Fiserv System. If Client has elected to provide such items itself, Fiserv shall provide Client with a list of compatible equipment and software; Client agrees to pay Fiserv’s standard fee for recertification of the Fiserv System resulting
(b) Client Personnel. Client shall
designate appropriate Client personnel for training in the use of the Fiserv System, shall supply Fiserv with reasonable access to Client’s site during normal business hours for Implementation Services and shall cooperate with Fiserv personnel
in their performance of Services.
(c) Use of Fiserv
System. Client shall (i) comply with any operating instructions on the use of the Fiserv System provided by Fiserv; (ii) review all reports furnished by Fiserv for accuracy; and (iii) work with Fiserv to reconcile any out of balance conditions.
Client shall determine and be responsible for the authenticity and accuracy of all information and data submitted to Fiserv.
(d) Client’s Systems. Client shall be responsible for ensuring that its systems are Year 2000 compliant and otherwise capable of passing
and/or accepting data from and/or to the Fiserv System.
Ownership and Confidentiality. (a) Definition.
(i) Client Information. “Client Information” means: (A) confidential plans, customer lists, information, and other proprietary material of Client that is marked with a restrictive legend, or if not so marked with such
legend or is disclosed orally, is identified as confidential at the time of disclosure (and written confirmation thereof is promptly provided to Fiserv); and (B) any information and data concerning the business and financial records of Client’s
customers prepared by or for Fiserv, or used in any way by Fiserv in connection with the provision of Fiserv Services (whether or not any such information is marked with a restrictive legend). Fiserv will be responsible for data and other
information, including equipment or
software on Fiserv premises for the benefit of the client , from the time such is received by Fiserv
until it is, in the case of data, processed and files based thereon are transmitted to Client. With a minimum of fifteen (15) days notice, Client will have access to any and all records at anytime they are in possession of Fiserv.
(ii) Fiserv Information. “Fiserv Information” means: (A)
confidential plans, information, research, development, trade secrets, business affairs (including that of any Fiserv client, supplier, or affiliate), and other proprietary material of Fiserv that is marked with a restrictive legend, or if not so
marked with such legend or is disclosed orally, is identified as confidential at the time of disclosure (and written confirmation thereof is promptly provided to Client); and (B) Fiserv’s proprietary computer programs, including custom software
modifications, software documentation and training aids, and all data, code, techniques, algorithms, methods, logic, architecture, and designs embodied or incorporated therein (whether or not any such information is marked with a restrictive
(iii) Information. “Information”
means Client Information and Fiserv Information. No obligation of confidentiality applies to any Information that the receiving party (“Recipient”) (A) already possesses without obligation of confidentiality; (B) develops independently; or
(C) rightfully receives without obligation of confidentiality from a third party. No obligation of confidentiality applies to any Information that is, or becomes, publicly available without breach of this Agreement.
(b) Information Security: Fiserv shall implement and maintain
appropriate measures designed to meet the objectives of the guidelines establishing standards for safeguarding non-public Client customer information as adopted by any federal regulatory agencies having jurisdiction over Client’s affairs.
Fiserv shall disclose to Customer any breaches in security, which results in unauthorized intrusions to Fiserv’s systems, the effect upon the Customer, and the corrective action Fiserv has taken to respond to the intrusion or breach in
security. Fiserv performs periodic security assessments, including penetration testing, through an independent third party. Fiserv shall provide Client with evidence of its most recent security audit certification upon Client’s request.
(c) Obligations. Recipient agrees to hold as
confidential all Information it receives from the disclosing party (“Discloser”). All Information shall remain the property of Discloser or its suppliers and licensors. Information will be returned to Discloser at the termination or
expiration of this Agreement. Recipient will use the same care and discretion to avoid disclosure of Information as it uses with its own similar information that it does not wish disclosed, but in no event less than a reasonable standard of care.
Recipient may use Information for any purpose that does not violate such obligation of confidentiality. Recipient may disclose Information to (i) employees and employees of affiliates who have a need to know; and (ii) any other party with
Discloser’s written consent. Before disclosure to any of the above parties, Recipient will have a written agreement with such party sufficient to require that party to treat Information in accordance with this Agreement. Recipient may disclose
Information to the extent required by law. However, Recipient agrees to give Discloser prompt notice so that it may seek a protective order. The provisions of this sub-section survive any termination or expiration of this Agreement.
(d) Residuals. Nothing contained in this Agreement shall restrict
Recipient from the use of any ideas, concepts, know-how, or techniques contained in Information that are related to Recipient’s business activities (“Residuals”), provided that in so doing, Recipient does not breach its obligations
under this Section. However, this does not give Recipient the right to disclose the Residuals except as set forth elsewhere in this Agreement.
(e) Fiserv System. The Fiserv System contains information and computer software that are proprietary and confidential information of Fiserv, its
suppliers, and licensors. Client agrees not to attempt to circumvent the devices employed by Fiserv to prevent unauthorized access to the Fiserv System, including, but not limited to, alterations, decompiling, disassembling, modifications, and
reverse engineering thereof.
(f) Confidentiality of this
Agreement. Fiserv and Client agree to keep confidential the prices, terms and conditions of this Agreement, without disclosure to third parties except for Federal, State, or other governmental regulatory agencies as may have jurisdiction over
7. Regulatory Agencies, Regulations
and Legal Requirements. (a) Client Files. Records maintained and produced for Client (“Client Files”) may be subject to examination by such Federal, State, or other governmental regulatory agencies as may have jurisdiction over
Client’s business to the same extent as such records would be subject if maintained by Client on its own premises. Client agrees that Fiserv is authorized to give all reports, summaries, or information contained in or derived from the data or
information in Fiserv’s possession relating to Client when formally requested to do so by an authorized regulatory or government agency.
(b) Compliance with Regulatory Requirements. Client agrees to comply with applicable regulatory
and legal requirements, including without limitation:
submitting a copy of this Agreement to the appropriate regulatory agencies prior to the date Services commence;
(ii) providing adequate notice to the appropriate regulatory agencies of the termination of this Agreement or any material changes in Services;
(iii) retaining records of its accounts as required by
(iv) obtaining and maintaining, at
its own expense, any Fidelity Bond required by any regulatory or governmental agency; and
(v) maintaining, at its own expense, such casualty and business interruption insurance coverage for loss of records from fire, disaster, or other causes, and taking such precautions regarding the same, as may be
required by regulatory authorities.
8. Warranties. (a)
Fiserv Warranties. Fiserv represents and warrants that:
(i)(A) Services will conform to the specifications set forth in the Exhibits; (B) Fiserv will perform Client’s work accurately provided that Client supplies accurate data and information, and follows the procedures described in all
Fiserv documentation, notices, and advices; (C) Fiserv personnel will exercise due care in provision of Services; (D) the Fiserv System will comply in all material respects with all applicable Federal regulations governing Services; and (E) the
Fiserv System is Year 2000 compliant. In the event of an error or other default caused by Fiserv personnel, systems, or equipment, Fiserv shall correct the data or information and/or reprocess the affected item or report at no additional cost to
Client. Client agrees to supply Fiserv with a written request for correction of the error within 7 days after Client’s receipt of the work containing the error. Work reprocessed due to errors in data supplied by Client, on Client’s behalf
by a third party, or by Client’s failure to follow procedures set forth by Fiserv shall be billed to Client at Fiserv’s then current time and material rates; and
(ii) it owns or has a license to furnish all equipment or software comprising the Fiserv System. Fiserv shall indemnify
Client and hold it harmless against any claim or action that alleges that the Fiserv System use infringes a United States patent, copyright, or other proprietary right of a third party. Client agrees to notify Fiserv promptly of any such claim and
grants Fiserv the sole right to control the defense and disposition of all such claims. Client shall provide Fiserv with reasonable cooperation and assistance in the defense of any such claim.
THE WARRANTIES STATED HEREIN ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY
FISERV. FISERV DOES NOT MAKE, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF
FISERV FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF FISERV SERVICES.
(b) Client Warranties. Client represents and warrants that: (A) no contractual obligations exist that would prevent Client from entering into this
Agreement; (B) it has complied with all applicable regulatory requirements; and (C) Client has requisite authority to execute, deliver, and perform this Agreement. Client shall indemnify and hold harmless Fiserv, its officers, directors, employees,
and affiliates against any claims or actions arising out of (X) the use by Client of the Fiserv System in a manner other than that provided in this Agreement; and (Y) any and all claims by third parties through Client arising out of the performance
and non-performance of Fiserv Services by Fiserv, provided that the indemnity listed in clause (Y) hereof shall not preclude Client’s recovery of direct damages pursuant to the terms and subject to the limitations of this Agreement.
9. Limitation of Liability. (a) General. IN NO EVENT SHALL
FISERV BE LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM CLIENT’S USE OF FISERV SERVICES, OR FISERV’S SUPPLY OF EQUIPMENT OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN
TORT OR IN CONTRACT. CLIENT MAY NOT ASSERT ANY CLAIM AGAINST FISERV MORE THAN 2 YEARS AFTER SUCH CLAIM ACCRUED. FISERV’S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTION RELATING TO SERVICES SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT
TO FISERV FOR SERVICES RESULTING IN SUCH LIABILITY IN THE 2 MONTH PERIOD PRECEDING THE DATE THE CLAIM ACCRUED. FISERV’S AGGREGATE LIABILITY FOR A DEFAULT RELATING TO EQUIPMENT OR SOFTWARE SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT FOR THE
EQUIPMENT OR SOFTWARE.
(b) Lost Records. If
Client’s records or other data submitted for processing are lost or damaged as a result of any failure by Fiserv, its employees, or agents to exercise reasonable care to prevent such loss or damage, Fiserv’s liability on account of such
loss or damages shall not exceed the reasonable cost of reproducing such records or data from exact duplicates thereof in Client’s possession.
10. Disaster Recovery. (a) General. Fiserv maintains a disaster recovery plan
(“Disaster Recovery Plan”) for each Service. A “Disaster” shall mean any unplanned interruption of the operations of or inaccessibility to Fiserv’s service center in which Fiserv, using reasonable judgment, requires
relocation of processing to a recovery location. Fiserv shall notify Client as soon as possible after Fiserv deems a service outage to be a Disaster. Fiserv shall move the processing of Client’s Account and Item Processing Services to a
recovery location as expeditiously as possible, not to exceed 48 hours, and shall coordinate the cut-over to back-up telecommunication facilities with the appropriate carriers. Fiserv shall use its best efforts to resume operations.
Client shall maintain adequate records of all transactions during the period of service
interruption and shall have personnel available to assist Fiserv in implementing the switchover to the recovery location. During a Disaster, optional or on-request services shall be provided by Fiserv only to the extent adequate capacity exists at
the recovery location and only after stabilizing the provision of base services.
(b) Communications. Fiserv shall work with Client to establish a plan for alternative communications in the event of a Disaster.
(c) Disaster Recovery Test. Fiserv shall test the Disaster Recovery Plan periodically. Client agrees to participate
in and assist Fiserv with such test, if requested by Fiserv. Upon Client request, test results will be made available to Client’s management, regulators, auditors, and insurance underwriters.
(d) Client Plans. Fiserv agrees to release information necessary to
allow Client’s development of a disaster recovery plan that operates in concert with the Disaster Recovery Plan.
(e) No Warranty. Client understands and agrees that the Disaster Recovery Plan is designed to minimize, but not eliminate, risks associated with a
Disaster affecting Fiserv’s service center(s). Fiserv does not warrant that Fiserv Services will be uninterrupted or error free in the event of a Disaster; no performance standards shall be applicable for the duration of a Disaster. Client
maintains responsibility for adopting a disaster recovery plan relating to disasters affecting Client’s facilities and for securing business interruption insurance or other insurance necessary for Client’s protection.
11. Termination. (a) Material Breach. Except as provided
elsewhere in this Section 11, either party may terminate this Agreement in the event of a material breach by the other party not cured within 90 days following written notice stating, with particularity and in reasonable detail, the nature of the
(a1). Failure by Fiserv to meet a Performance
Standard shall be deemed an “occurrence”. When reasonably possible, Customer must report incidents suspected to be performance Standard Occurrences to Fiserv within seventy- two (72) hours, or immediately becoming aware of the incident
after the seventy-two (72) hour deadline.
(a2). Remedy for
occurrences: In the event that four (4) occurrences take place during any six month period with respect to the same Performance Standard, then for a period of thirty (30) days after receipt by Client of a report from Fiserv reflecting the fourth
occurrence, Client will have the right to terminate this agreement, through delivery of written notice to Fiserv, provided the effective date of termination will not be less than ninety (90) days after receipt by Fiserv of such notice. Upon written
notice received by Fiserv, Fiserv will have a period of ninety (90) days to cure the performance standard.
(a3). Fiserv will provide client with a report reflecting the prior month’s actual performance against the performance standard. This report will be
provided by the 15th of the following month.
(b) Failure to Pay. In the event any invoice remains unpaid by Client 30 days after due, or Client deconverts any
data or information from the Fiserv System without prior written consent of Fiserv, Fiserv, at its sole option, may terminate this Agreement and/or Client’s access to and use of Fiserv Services. Any invoice submitted by Fiserv shall be deemed
correct unless Client provides written notice to Fiserv within 15 days of the invoice date specifying the nature of the disagreement.
(c) Remedies. Remedies contained in this Section 11 are cumulative and are in addition to the other rights and remedies available to Fiserv under
this Agreement, by law or otherwise.
(d) Defaults. If
(i) defaults in the payment of any sum of money due
in Section 11(b);
(ii) breaches this Agreement in any
material respect or otherwise defaults in any material respect in the performance of any of its obligations in Section 11(a); or
(iii) commits an act of bankruptcy or becomes the subject of any proceeding under the Bankruptcy Code or becomes insolvent or if any substantial part of
Client’s property becomes subject to any levy, seizure, assignment, application, or sale for or by any creditor or governmental agency;
then, in any such event, Fiserv may, upon written notice, terminate this Agreement and be entitled to recover from Client as liquidated damages an amount equal to the
present value of all payments remaining to be made hereunder for the
remainder of the initial term or any renewal term of this Agreement. For purposes of the preceding sentence, present
value shall be computed using the “prime” rate (as published in The Wall Street Journal) in effect at the date of termination and “all payments remaining to be made” shall be calculated based on the average bills
for the 3 months immediately preceding the date of termination. Client agrees to reimburse Fiserv for any expenses Fiserv may incur, including reasonable attorneys’ fees, in taking any of the foregoing actions.
(e) Convenience. Client may terminate this Agreement by paying a
termination fee based on the remaining unused term of this Agreement, the amount to be determined by multiplying Client’s largest monthly invoice for each Fiserv Service received by Client during the term (or if no monthly invoice has been
received, the sum of the estimated monthly billing for each Fiserv Service to be received hereunder) by 80% times the remaining months of the term, plus any unamortized conversion fees or third party costs existing on Fiserv’s books on the date
of termination. Client understands and agrees that Fiserv losses incurred as a result of early termination of the Agreement would be difficult or impossible to calculate as of the effective date of termination since they will vary based on, among
other things, the number of clients using the Fiserv System on the date the Agreement terminates. Accordingly, the amount set forth in the first sentence of this subsection represents Client’s agreement to pay and Fiserv’s agreement to
accept as liquidated damages (and not as a penalty) such amount for any such Client termination.
(f) Merger or Acquisition of Fiserv Client. The acquired Fiserv client may terminate their Fiserv agreement without penalty by providing Fiserv 90
days written notice, providing the acquired client remains a Fiserv client under this agreement.
(g) Merger or Acquisition by Fiserv client. Client may terminate this agreement without penalty by providing Fiserv 90 days written notice,
providing client remains a Fiserv client under the acquiring Fiserv client agreement.
(h) Merger or Acquisition by non-Fiserv client. Client may terminate this agreement by providing written notification as required in paragraph (1) of this agreement, and paying Fiserv the following termination
fees plus any unamortized conversion fees, third party costs, or other costs existing on Fiserv’s books on the date of termination. Client understands and agrees that Fiserv losses incurred as a result of early termination of the Agreement
would be difficult or impossible to calculate as of the effective date of termination since they will vary based on, among other things, the number of clients using the Fiserv System on the date the Agreement terminates.
During the first twelve months of this agreement, the fee will be equal to the total of the
AP, and IP invoice amount, less pass through charges times 19, plus the exact amount of credit Fiserv provided client during the first two months of this agreement.
During the second twelve months of the agreement, the fee will be equal to the total of the
AP, and IP invoice amount, less pass through charges times 16.
During the third twelve months of this agreement, the fee will be equal to the total of the
AP, and IP invoice amount, less pass through charges times 12.
During the fourth twelve months of this agreement, the fee will be equal to the total of the
AP, and IP invoice amount, less pass through charges times 9.
During the next eight months of this agreement, the fee will be equal to the total of the AP,
and IP invoice amount, less pass through charges times 6.
During the remaining months of this agreement, the fee will be an amount to be determined by
taking the actual monthly AP, and IP invoice amount, less any pass thru charges at the time of termination, and multiplying it by the number of months remaining on this agreement.
(i) Return of Data Files. Upon expiration or termination of this
Agreement, Fiserv shall furnish to Client such copies of Client Files as Client may request in a Fiserv standard format along with such information and assistance as is reasonable and customary to enable Client to deconvert from the Fiserv System,
provided, however, that Client consents and agrees and authorizes Fiserv to retain Client Files until (i) Fiserv is paid in full for (A) all Services provided through the date such Client Files are returned to Client; and (B) any and
all other amounts that are due or will become due under this Agreement; (ii) Fiserv is paid its then standard rates for the services necessary to return such Client Files; (iii) if this Agreement is being terminated, Fiserv is paid any applicable
termination fee pursuant to subsection (d), (e) or (f) above; and (iv) Client has returned to Fiserv all Fiserv Information. Unless directed by Client in writing to the contrary, Fiserv shall be permitted to destroy Client Files any time after 30
days from the final use of Client Files for processing.
Miscellaneous. Client understands and agrees that Client is responsible for the deinstallation and return shipping of any Fiserv-owned equipment located on Client’s premises.
12. Dispute Resolution. (a) General. Except with respect to disputes arising from a misappropriation or misuse
of either party’s proprietary rights, any dispute or controversy arising out of this Agreement, or its
interpretation, shall be submitted to and resolved exclusively by arbitration under the rules then prevailing of the American Arbitration Association, upon written notice of demand for arbitration by the party seeking arbitration, setting forth the
specifics of the matter in controversy or the claim being made. The arbitration shall be heard before an arbitrator mutually agreeable to the parties; provided, that if the parties cannot agree on the choice of arbitrator within 10 days after the
first party seeking arbitration has given written notice, then the arbitration shall be heard by 3 arbitrators, 1 chosen by each party, and the third chosen by those 2 arbitrators. The arbitrators will be selected from a panel of persons having
experience with and knowledge of information technology and at least 1 of the arbitrators selected will be an attorney. A hearing on the merits of all claims for which arbitration is sought by either party shall be commenced not later than 60 days
from the date demand for arbitration is made by the first party seeking arbitration. The arbitrator(s) must render a decision within 10 days after the conclusion of such hearing. Any award in such arbitration shall be final and binding upon the
parties and the judgment thereon may be entered in any court of competent jurisdiction.
(b) Applicable Law. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. 1-16. The arbitrators shall apply the substantive law of the State of California, without reference to
provisions relating to conflict of laws. The arbitrators shall not have the power to alter, modify, amend, add to, or subtract from any term or provision of this Agreement, nor to rule upon or grant any extension, renewal, or continuance of this
Agreement. The arbitrators shall have the authority to grant any legal remedy available had the parties submitted the dispute to a judicial proceeding.
(c) Situs. If arbitration is required to resolve any disputes between the parties, the proceedings to resolve any such disputes shall be held in
San Diego, California.
13. Insurance. Fiserv carries
the following types of insurance policies:
General Liability in an amount not less than $1 million per occurrence for claims arising out of bodily injury and property damage;
(ii) Commercial Crime covering employee dishonesty in an amount not less than $5 million;
(iii) All-risk property coverage including Extra Expense and Business Income coverage; and
(iv) Workers Compensation as mandated or allowed by the laws of the state in
which Services are being performed, including $1,000,000 coverage for Employer’s Liability.
14. Audit. Fiserv employs an internal auditor responsible for ensuring the integrity of its processing environments and internal controls. In
addition, Fiserv provides for periodic independent audits of its operations. Fiserv shall provide Client with a copy of the audit of the Fiserv service center providing Services within a reasonable time after its completion and shall charge each
client a fee based on the pro rata cost of such audit. Fiserv shall also provide a copy of such audit to the appropriate regulatory agencies, if any, having jurisdiction over Fiserv’s provision of Services.
15. General. (a) Binding Agreement. This Agreement is binding
upon the parties and their respective successors and permitted assigns. Neither this Agreement nor any interest may be sold, assigned, transferred, pledged, or otherwise disposed of by Client, whether pursuant to change of control or otherwise,
without Fiserv’s prior written consent. Client agrees that Fiserv may subcontract any Services to be performed hereunder. Fiserv will notify client at least 60 days prior to the assignment of any services to be performed under this agreement.
Any such subcontractors shall be required to comply with all applicable terms and conditions.
(b) Entire Agreement. This Agreement, including its Exhibits, which are expressly incorporated herein by reference, constitutes the complete and exclusive statement of the agreement between the parties as to
the subject matter hereof and supersedes all previous agreements with respect thereto. Modifications of this Agreement must be in writing and signed by duly authorized representatives of the parties. Each party hereby acknowledges that it has not
entered into this Agreement in reliance upon any representation made by the other party not embodied herein. In the event any of the provisions of any Exhibit are in conflict with any of the provisions of this Agreement, the terms and provisions of
this Agreement shall control unless the Exhibit in question expressly provides that its terms and provisions shall control.
(c) Severability. If any provision of this Agreement is held to be unenforceable or invalid, the other provisions shall continue in full force and
(d) Governing Law. This Agreement will be
governed by the substantive laws of the State of California, without reference to provisions relating to conflict of laws. The United Nations Convention of Contracts for the International Sale of Goods shall not apply to this Agreement.
(e) Force Majeure. Neither party shall be responsible for delays or
failures in performance resulting from acts reasonably beyond the control of that party.
(f) Notices. Any written notice required or permitted to be given hereunder shall be given by: (i) Registered or Certified Mail, Return Receipt Requested, postage prepaid; (ii)
confirmed facsimile; or (iii) nationally recognized courier service to the other party at the addresses listed on the
cover page or to such other address or person as a party may designate in writing. All such notices shall be effective upon receipt.
(g) No Waiver. The failure of either party to insist on strict performance of any of the provisions hereunder shall not be construed as the waiver
of any subsequent default of a similar nature.
Financial Statements. Fiserv shall provide Client and the appropriate regulatory agencies so requiring a copy of Fiserv, Inc.’s audited consolidated financial statements.
(i) Prevailing Party. The prevailing party in any arbitration, suit, or action brought against the other party to
enforce the terms of this Agreement or any rights or obligations hereunder, shall be entitled to receive its reasonable costs, expenses, and attorneys’ fees of bringing such arbitration, suit, or action.
(j) Survival. All rights and obligations of the parties under this
Agreement that, by their nature, do not terminate with the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
(k) Exclusivity. Client agrees that Fiserv shall be the sole and exclusive provider of the services that are the
subject matter of this Agreement. For purposes of the foregoing, the term “Client” shall include Client affiliates. During the term of this Agreement, Client agrees not to enter into an agreement with any other entity to provide specific
services provided to client by Fiserv as identified in Exhibit’s A, and B of this agreement without Fiserv’s prior written consent. If Client acquires another entity, the exclusivity provided to Fiserv hereunder shall take effect with
respect to such acquired entity as soon as practicable after termination of such acquired entity’s previously existing arrangement for these services. If Client is acquired by another entity, the exclusivity provided to Fiserv hereunder shall
apply with respect to the level or volume of these services provided immediately prior to the signing of the definitive acquisition agreement relating to such acquisition and shall continue with respect to the level or volume of these services until
any termination or expiration of this Agreement.
Recruitment of Employees. Client agrees not to hire Fiserv’s employees during the term of this Agreement and for a period of 6 months after any termination or expiration thereof, except with Fiserv’s prior written consent.
(m) Publicity. The parties shall mutually agree on a
press release relating to the execution of this Agreement. Each party shall mutually agree with the other regarding any media release, public announcement, or similar disclosure relating to this Agreement or its subject matter and shall give the
other party a reasonable opportunity to review and comment on the content of such release, announcement, or disclosure prior to its release. Such agreement shall not be unreasonably withheld. Notwithstanding the foregoing, Fiserv shall have the
right to make general references to Client and the type of services being provided by Fiserv to Client under this Agreement in Fiserv’s oral and visual presentations to Fiserv clients, prospective Fiserv clients, and financial analysts,
provided that such references shall be consistent with any such mutually agreed press release.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized
representatives as of the date indicated below.