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EXHIBIT 10.7
XXXX XXXXX AND ASSOCIATES, INC.
DATA PROCESSING SERVICES AGREEMENT
This Agreement, entered into this 1ST day of DECEMBER, 1998 between:
NEW COMMERCE BANK
000 XXXXX XXXX
XXXXXXXXXX, XX 00000
hereafter called "Client" and
XXXX XXXXX AND ASSOCIATES, INC.
000 XXXXXXX 00
XXXXXX, XX 00000
hereafter called "XXX".
XXX is in the business of providing data processing services throughout its
trade area and Client is desirous of securing such services from XXX.
Therefore, on the date hereinafter indicated, the parties do hereby agree as
follows:
1. DESCRIPTION OF SERVICES
Client hereby contracts for and XXX hereby agrees to furnish, on the terms
and conditions hereinafter set forth, the data processing services which
are enumerated on Exhibit "A" attached to and a part of this Agreement.
2. TERM OF AGREEMENT
The original term of this agreement shall be for five (5) years commencing
on the day of conversion to the new system. This Agreement shall be
automatically extended for successive terms of one year from the expiration
date of the original term. Either party may terminate the Agreement at the
end of any contract term provided that written notice to this effect is
given to the other party not less than 90 days prior to the end of any
contract term. It being understood that if proper notification is not
given, the term will automatically be renewed for one year.
In the event that the Client provides timely notice to XXX as aforesaid of
its intention to terminate this Agreement, this Agreement shall terminate
as provided herein. In the event of such termination, the Client shall pay
XXX all direct expenses incurred by XXX in turning over to the Client all
information maintained by XXX and relating to data processing services
performed by XXX for the Client. These expenses shall include, but shall
not be limited to, charges for computer run time and programming
requirements in accordance with XXX published rate schedules in effect at
that time.
In the event that the Client discontinues using XXX for processing prior to
the end of any contract term, the Client will be liable to XXX for a lump
sum settlement to be calculated as the average monthly billing exclusive of
pass through cost including, but not limited to, data lines, postage,
Federal Reserve charges, etc., for the past twelve months multiplied by the
number of months and any portion of a month remaining in the contract term.
In the event that any entity assumes the deposit liabilities of Client,
such entity will automatically assume the obligations and liabilities of
Client hereunder for the remaining contract term.
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Schedule of service fees will remain in effect for the term of the
Agreement. At the end of each twelve (12) month period during the term, XXX
may increase the Schedule of Service Fees then in effect by such an amount
as XXX determines to be appropriate; provided, however, that XXX may not at
that time increase the service fees in effect by a percentage greater than
the percentage increase during the preceding twelve (12) month period in
the "Consumer Price Index Seasonally Adjusted US City Average for All Items
for all Urban Consumers (1982-84 = 100)" published monthly in the "Monthly
Labor Review" of the Bureau of Labor Statistics of the United States
Department of Labor or, should that index cease to be published, the most
comparable index published on a regular basis by the US Government. XXX
will provide a ninety (90) day advance written notice to Client before such
changed fees go into effect.
3. OWNERSHIP AND CONFIDENTIAL NATURE OF COMPUTER PROGRAMS AND MATERIAL
During the term of this Agreement, XXX covenants to furnish and maintain,
on its premises and at its cost, all of the equipment which it deems
necessary to perform the Data Processing Services. XXX retains the right to
move the equipment to any other location provided that such change will not
materially alter the services XXX provides to Client as specified in this
Agreement. During the term of this Agreement, Client covenants to furnish
and maintain, on its premises and at its cost, all of the equipment and
materials specified by XXX as being necessary for Client to receive,
transmit and otherwise utilize the data processing services specified in
Exhibit "A". The Client shall also notify XXX of the anticipated
commencement of on-line services through new or additional terminals or the
opening of new branches at least thirty (30) days in advance of the
commencement of such services so as to enable XXX to arrange for necessary
communication lines and with the understanding that the scheduled
implementation date of such new on-line support may be dependent on the
delivery schedules of third party vendors. The Client agrees to reimburse
XXX when billed for charges, or the Client's portion of charges pro-rated
among those Clients served, for communication lines or devices or
installation of communication lines or devices arranged and paid for by XXX
on behalf of the Client. Any equipment leased by XXX to Client shall be
maintained in accordance with the provisions of a separate lease agreement.
All data processing programs, specifications, documentation (including
manuals, routines, sub-routines, or techniques, herein collectively called
"programs" and original ideas or formulae relating to data processing or
other handling or treatment of data (herein collectively called "ideas"),
are and shall remain the property of XXX. It is agreed that the Client will
not copy related materials or divulge the contents of said programs and
ideas to any third party without permission for such disclosure or use
being granted in writing by XXX.
The Client shall reimburse XXX for any prior agreed upon costs incurred by
XXX in developing customized programs or modifications to programs to
satisfy the requirements of the Client or the Client's independent
auditors, including the cost of the computer time to run said programs. It
is further agreed that such customized programs or modifications will
remain the property of XXX and, as such, XXX has the right to use said
programs or modifications in providing services to other financial
institutions.
4. TRANSPORTATION OF DATA
The parties acknowledge that reliable transportation of Client's input data
and its processed work is necessary for XXX to perform in accordance with
the Agreement. Accordingly, Client may either provide its own
transportation of both the input data and processed work or it may elect to
authorize XXX to contract for an authorized carrier to provide the
transportation services and/or utilize JHA's own or its agent's vehicles to
transport Client's input data and processed work for a fee as shown in
Exhibit "A".
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In the event Client elects to authorize XXX to provide the transportation
services and XXX elects to contract for a carrier to provide the necessary
transportation services, such services will be rendered under the terms and
conditions of a contract between XXX and said carrier or courier which such
contract shall be made a part hereof by reference. XXX reserves the right
to change carrier or couriers from time to time during the term of this
Agreement. Client has the right to obtain from XXX a copy of the contract
which is in effect upon written request to XXX. Client agrees that it is a
third party beneficiary of said contract and any other which XXX may elect
to become a party to during the term of this Agreement. As such, it agrees
to be bound by and subject to all terms and conditions of these courier
contracts, which shall be standard courier contracts, including, but not by
way of limitation, any limitation of liability provisions. It is the intent
of the parties that JHA's liability to Client or third parties for losses
in transit, if any, shall be the same as the liability of the carrier to
XXX under its Agreement.
In the event XXX elects to utilize its own or its agent's vehicles to
render the transportation services necessary for the performance of this
Agreement, then the parties agree to be bound by a Compensation Schedule
for such services, which shall be mutually agreed upon. Accordingly the
same limitation of liability provisions as provided in standard courier
contracts or such additional agreements as may be required by XXX to
perform such courier services shall apply whether any claim is by XXX
and/or Client against the authorized carrier or Client against XXX
utilizing its own or its agent's vehicles.
5. EXAMINATION
The records maintained by XXX for the Client shall be subject to
examination by those Federal or State agencies having jurisdiction over the
Client to the same extent that such records would be subject to examination
were they maintained and produced by the Client on its own premises, and
XXX is authorized to provide the representatives of such agencies access to
such records. Reasonable expenses incurred by XXX on the Client's behalf
during the course of such examination may, at JHA's sole discretion, be
charged to the Client by XXX with itemized accounting of such expenses.
6. RESPONSIBILITY FOR DATA
All records transmitted to XXX by Client shall remain the property of the
Client. XXX shall consider all information transmitted to it by the Client
to be of a confidential nature and XXX shall use its best effort to keep
such information confidential, including the use of reasonable care to
prevent unauthorized access to information transmitted by the Client
pursuant to this Agreement.
XXX will use reasonable care in the processing of the accounts for the
Client and reports to the Client. The Client agrees to promptly check and
verify all of the reports received from XXX to ascertain that all data has
been processed and reported correctly, and to report any discrepancies to
XXX not later than three (3) business days following receipt of such
reports. Business days will be defined to be Monday through Friday, from
8:00 A.M. to 5:00 P.M. EST. Failure to report any discrepancies within the
time prescribed in the previous sentences shall constitute a conclusive
presumption that such reports are correct and accurate.
XXX will provide safeguards determined at its discretion to ensure
protection against destruction of records and programs by fire or other
disasters, loss of data in transit or machine or human error, or
unauthorized manipulation of data or reports insofar as can reasonably be
expected using then current techniques and/or then current accepted
business practices for storage and transfer of magnetic media.
XXX maintains a disaster recovery plan with off-site data files and
communications facilities for the re-establishment of services in the event
of a disaster at XXX and agrees to make such backup processing
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capability available to the Client in the event of a major disaster at XXX.
7. WARRANTIES, EXCLUSIVE REMEDIES AND LIMITATION OF LIABILITY
XXX shall have no duties or responsibilities except those expressly set
forth in this Agreement. XXX warrants to provide the services under this
Agreement in a competent manner consistent with industry standards. The
warranty set forth in this Agreement is in lieu of all other warranties,
express or implied, whether of merchantability, fitness or otherwise.
Should XXX breach such warranty, XXX shall diligently and in good faith
attempt to correct that breach by performing or correcting its services,
provided that nothing herein shall be construed as requiring XXX to provide
any services without compensation. If within a reasonable time XXX is
unable to correct such breach as aforesaid, Client shall be entitled to an
equitable reduction in fees paid to XXX for the defective services. The
remedies herein contained are exclusive.
Not by way of limitation or exclusion, XXX shall not be liable to Client or
to any third party, including, but not limited to, customers of Client, for
errors resulting from defects or malfunctions of the mechanical or
electronic equipment used in performing its services hereunder. In
addition, XXX shall not be liable to Client or to any third party,
including, but not limited to, customers of Client, for any loss, damage,
cost or expense arising from the use of any lost or stolen ATM cards;
failure or delay in making a requested transfer; erroneous transfers;
liability by reason of insufficiency of funds in any account; unauthorized
transfers; and failure to comply with state or federal laws, rules or
regulations. Any liability of XXX to Client resulting from failure to
comply with the terms of this Agreement or wherein XXX shall become legally
obligated to pay for damages resulting from any claim arising from this
Agreement shall be limited to the actual damages suffered by Client.
XXX shall not be liable or responsible to Client or to any third party,
including, but not limited to, customers of Client, for any consequential,
special, indirect, or incidental damages, even if XXX has been advised of
the possibility of such damages, except to the extent such damages result
from the willful misconduct or gross negligence of XXX.
XXX shall not be liable for delays or failures in the performance or
completion of any of its obligations under or with respect to this
Agreement beyond its reasonable control including, but not limited to,
delays caused by acts of civil or military authority, riots, epidemics,
war, governmental regulations, strikes, lockouts, labor difficulties, fire,
hurricanes, flood, insurrection, catastrophes, failures of transportation,
communications or power supply, unavoidable mechanical difficulty with its
computer equipment, acts of God, or other causes beyond its control or due
to third parties.
8. BILLING AND PAYMENT FOR SERVICES
The Client agrees to accept the services and equipment described in this
Agreement and in the attached Exhibit "A" and to pay XXX all amounts due
hereunder in accordance with such Exhibit "A". Following the end of each
billing period, XXX shall xxxx the Client for all amounts due XXX hereunder
for such billing period (including, but not limited to, all standard
repetitive charges, all charges for additional requested services, and
other charges incurred by the Client whether contemplated by this Agreement
or agreed to by independent written contract or verbal contract or
otherwise requested). Payment shall be made by the Client when invoice is
rendered. Payment of all invoice amounts not received by XXX within 30 days
of invoice date shall bear interest at the rate of 1.5% per month until
paid.
9. MAGNETIC INK CHARACTER RECOGNITION
XXX requires that the magnetic ink character recognition (MICR) line
printed on certain Client input documents conform to standards acceptable
to XXX. XXX shall not be liable for failure of its equipment to read the
Client's input documents, nor for any subsequent errors in transmission of
data
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or printed listing if the MICR specifications are not adhered to. Items
returned in error or processed in error due to the inability of XXX
equipment to read unacceptable MICR of any of the Client's input documents
shall be the sole liability of the Client. Upon request, XXX will furnish
the Client with detailed specifications for acceptable MICR standards.
10. SEVERABILITY
If any provision of this Agreement or the application of any provision to
either party or third person should be held invalid by a court of law, the
remainder of this Agreement or the application of such provision to the
parties or third parties other than those to which it is held invalid,
shall not be affected thereby and shall remain in full force and effect.
11. ENTIRE AGREEMENT
This Agreement constitutes the sole and entire Agreement between XXX and
the Client pertaining to the provision of subject Data Processing Services
and supersedes all prior agreements and understandings of the parties in
connection herewith.
XXX makes no representations or warranties, expressed or implied, by
operation of law or otherwise, except expressly stated herein. This
Agreement shall not be modified, amended, rescinded or waived in whole or
in part except by a duly executed written document signed by the parties.
This Agreement and the exhibits and schedules attached hereto shall be
governed by the laws of the State of Missouri, and the rules and
regulations of the appropriate banking regulatory agencies. The parties
hereto bind themselves and their successors and assigns to the faithful
observance and performance of this Agreement and the terms and conditions
hereof; provided that the Client shall not assign its rights hereunder
without the prior written consent of XXX.
All notices required by this Agreement shall be sent via certified or
registered mail, return receipt requested, postage prepaid, addressed to
XXX at:
XXXX XXXXX AND ASSOCIATES, INC.
000 XXXXXXX 00
XXXXXX, XX 00000
ATTENTION: PRESIDENT
and to the Client at:
NEW COMMERCE BANK
000 XXXXX XXXX
XXXXXXXXXX, XX 00000
ATTENTION: PRESIDENT
The notice shall be deemed delivered on the actual date of delivery, that
being the delivered date on said return receipt.
12. AUDIT RESPONSIBILITY
XXX shall cause to be performed, on an annual basis, a third party
operational review of its data processing centers. A copy of the most
recently completed audit for Clients servicing center will be made
available upon written request to the manager of the center. XXX shall,
upon request, schedule a mutually convenient time whereby Client audit
representatives may visit the processing center for further audit needs.
Client should review on a daily basis any audit, maintenance and exception
reports available from XXX.
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13. TIME FRAMES FOR RECEIPT AND DELIVERY OF WORK
XXX shall make available the following:
- Access to on-line files between 7:00 A.M. and 7:00 P.M. daily.
- Access to print spool files for initiating of report printing at
Client location between 6:00 A.M. and 7:00 P.M. daily.
Additional access to on-line and print files may be made available upon
request by Client.
Client shall make data available to XXX for daily processing as follows:
- Maintenance transactions for new and existing Client customers by
7:00 P.M.
- MICR data files for processed items by 7:00 P.M. Later
availability times may be made available on request by Client for
exception conditions.
XXX recognizes that availability of certain data required for processing of
Client's work (such as ATM and ACH transactions) may not be under Client's
direct control. XXX will make reasonable efforts to accommodate the
processing time frames of these other providers.
For Clients utilizing backroom check processing services of XXX a courier
pickup and delivery schedule will be established within 30 days of
acceptance of this Agreement by XXX.
14. NOTIFICATION OF CHANGES
XXX shall notify Client in advance of any changes that would affect Client
procedures, system access or functionality, reports, processing time frames
or related areas.
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate as of
the date first written above.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Type/Print Name: Xxxxx X. Xxxxxxx NEW COMMERCE BANK
---------------------------- 000 XXXXX XXXX
XXXXXXXXXX, XX 00000
Title: President
--------------------------------------
Date: December 1, 1998
---------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Type/Print Name: Xxxxxxx X. Xxxxxxx XXXX XXXXX & ASSOCIATES. INC.
---------------------------- 000 XXXXXXX 00, X.X. XXX 000
XXXXXX, XX 00000
Title: President and Chief Operating Officer
--------------------------------------
Date: December 1, 1998
---------------------------------------
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EXHIBIT "A"
ADDENDUM TO DATA PROCESSING AGREEMENT
Monthly Processing Costs will be as follows:
Base Processing Fee includes the following applications:
- Customer Information File - Account Analysis
- Demand Deposit Accounting - Customer Profitability
- Savings & Club Accounting - Accounts Payable
- Loans (All types) - Overdraft Protection
- Time Deposit Accounting - Home Equity Loans
- Repurchase Agreements - Loan pricing
- Individual Retirement Accounting - Cash Sweep
- General Ledger - ACH Origination
- Safe Deposit Box Accounting - Executive Reminder System
- Stockholder Accounting - Account Reconciliation
- Automatic Funds Transfer System - Audit Confirmations
- Loan Collections
Base Processing Fee for the first two years will be $2,750 per month. After
second year, fixed for the term of the agreement at $3,000 per month for up to
5,000 deposit and loan accounts. Thereafter, standard per account pricing would
apply.
MONTHLY COSTS:
BASE PROCESSING FEE $2,750
(Includes up to 10 devices)
ADDITIONAL 5 DEVICES $ 150
TELEPHONE LINE CHARGES (Estimated) $ 750
ADDITIONAL MONTHLY FEES:
ACH Fed-Line Interface N/C
Inclearing via Fed N/C
Call Reporter Interface N/C
Enhanced Statements $ 90
Mutual Fund Sweep $ 145
XXX Host Based Optical Reports $ 250
Regency Voice Response $ 400
(includes up to 3,750 transactions. Above 3,750 @ $.06 each)
JHA Cash Management (non NetTeller) $ 550
(will also require a Cash Management Server)
XXX Platform (deposits & loans) $ 770
XXX Xxxxxx - Xxxxxx Automation System $ 250
XXX On-Line Integration $ 100
SIGMASTER $ 100
CHECKMASTER $ 100
CTRMASTER $ 100
Store & Forward N/C
ATM On-Line Integration (CommLink) $ 300
ATM Driver Fees $ 300
Debit Card Service Bureau Transaction Authorization $ 105
Check Image Item Processing (see attached "Check Image
Processing Schedule") $1,100
------
$4,660
------
TOTAL MONTHLY COSTS: $8,310
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ONE TIME COSTS
CIF 20/20 CONVERSION-INSTALLATION $ 7,500
EDUCATION
- PARAMETER TRAINING $ 1,200
4.5 days in Charlotte, N.C. for up to 3 people. Parameter and product
plan training to facilitate conversion planning activities. Each additional
person $500
- ON-SITE TRAINING $ 3,700
3.5 days training at bank location. Training bank staff on daily functions
(Bank provides training room and equipment) Each additional day $1,200
PHONE LINE INSTALLATION (Estimated) $ 750
ACH FED-LINE INTERFACE $ -0-
INCLEARING VIA FED $ -0-
CALL REPORTER INTERFACE $ -0-
ENHANCED STATEMENTS $ -0-
MUTUAL FUND SWEEP $ 1,000
XXX HOST BASED OPTICAL $ 7,500
REGENCY VOICE RESPONSE $ 5,000
JHA CASH MANAGEMENT (non-NetTeller) $ 5,000
XXX PLATFORM (deposits & loans) $ 9,500
JHATELLER (includes only the modules listed in the "Monthly Costs" section) $ 5,000
STORE & FORWARD (4 licenses @ $250 each) $ 1,000
ATM ON-LINE INTEGRATION W/DEBIT (CommLink) $ 3,000
ATM DRIVER FEES $ 3,000
DEBIT CARD SERVICE BUREAU TRANSACTION AUTHORIZATION $ 2,500
CHECK IMAGE ONE-TIME INSTALLATION & SETUP $10,250
(see attached "Check Image Processing Schedule") -------
TOTAL INSTALLATION/TRAINING CHARGES $65,900
LESS XXX ALLOWANCE $ 5,000
-------
$60,900
Client will pay additional costs beyond monthly processing charges as follows:
- Telecommunication line charges and installation fees at actual cost
(if different from those indicated).
- Hardware maintenance charges on equipment.
- Any forms and supplies related to Client's printing requirements.
- Costs associated with Credit Bureau Reporting, including a charge of
$75.00 per tape generated.
- Out of pocket expenses of conversion/education personnel traveling to
Client location.
BY: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
NEW COMMERCE BANK
DATE: December 1, 1998
-------------------------------------
BY: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
XXXX XXXXX & ASSOCIATES, INC.
DATE: December 1, 1998
-------------------------------------
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SCHEDULE OF SERVICE FEES
# OF ACCOUNTS PRICE PER ACCOUNT
------------- -----------------
4000 $ 1
5000 0.8500
6000 0.7500
7000 0.6786
8000 0.6250
9000 0.6050
10000 0.6000
11000 0.5950
12000 0.5900
13000 0.5850
14000 0.5800
15000 0.5750
16000 0.5700
17000 0.5650
18000 0.5600
19000 0.5550
20000 0.5500
21000 0.5450
22000 0.5400
23000 0.5350
24000 0.5300
25000 0.5250
26000 0.5200
27000 0.5150
28000 0.5100
29000 0.5050
30000 0.5000
31000 0.4990
32000 0.4980
33000 0.4970
34000 0.4960
35000 0.4950
36000 0.4940
37000 0.4930
38000 0.4920
39000 0.4910
40000 0.4900
41000 0.4890
42000 0.4880
43000 0.4870
44000 0.4860
45000 0.4850
46000 0.4840
47000 0.4830
48000 0.4820
49000 0.4810
50000 0.4800
51000 0.4790
52000 0.4780
53000 0.4770
54000 0.4760
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CHECK IMAGE PROCESSING SCHEDULE
NEW COMMERCE BANK
GREENVILLE, SC
0-XXX-00
Xxxx Xxxxxx Bank will handle item encoding functions, delivering qualified on-us
and transit items to XXX on a schedule to be developed. XXX will capture MICR
and Images, deliver transit items to the Federal Reserve or other designated
clearing house, perform all bulk file, statement sorting, and statement
rendering. XXX will return the actual items to the bank for storage or disposal.
SERVICES PRICE VOLUMES COSTS
-------- ----- ------- -----
Proof Encoding Bank to provide encoded items
Proof Adjustments 2.5000 -- --
TOTAL PROOF SERVICES --
Image Capture 0.0300 -- --
Reject Re-Entry 0.0800 -- --
Cash Letter Processing 50.00 -- --
Exception Item Pulls 200.00 -- --
Special Serial Sorts (per Account) 25.00 -- --
TOTAL ITEM CAPTURE SERVICES --
Image Statement Processing 0.3500 -- --
Non Image Statements w/Checks 3.5000 -- --
Non Image Savings Statements 0.1000 -- --
Statement Inserts 0.0100 -- --
Item Research 2.5000 -- --
Return Item Processing 1.2500 -- --
TOTAL STATEMENT SERVICES --
Courier Expenses 0.0000 -- --
Microfilm Expenses 0.0000 -- --
Postage Expenses 0.0000 -- --
(Above items are billed at costs)
MONTHLY ITEM PROCESSING FEES --
MINIMUM MONTHLY ITEM PROCESSING FEES 1,100.00
TOTAL ONE-TIME INSTALLATION & SETUP 10,250.00
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CONTRACT MODIFICATION
This Contract Modification is entered into on December 1, 1998, by and between
NEW COMMERCE BANK, 000 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000 (Client) and XXXX XXXXX
& ASSOCIATES, INC. (XXX) who mutually contract and agree as follows:
Client and XXX are signing and entering into multiple other written contracts
and agreements dated December 1, 1998. Certain of those contracts and agreements
are changed and modified as follows:
THE "DATA PROCESSING SERVICES AGREEMENT" IS CHANGED AND MODIFIED AS FOLLOWS:
IN SECTION "2. TERM OF AGREEMENT."
FOLLOWING THE ORIGINAL FOURTH SUBPARAGRAPH INSERT A NEW PARAGRAPH AS FOLLOWS:
"Upon the completion of thirty-six (36) months of processing by XXX,
Client may opt to go to in-house processing without penalty, provided
that such in-house processing utilizes the XXX CIF 20/20 Software.
Client will be responsible to XXX for the purchasing of the AS/400
required to run the aforesaid Software in addition to all training and
implementation costs and fees. In the event that Client opts to
exercise this option, the deconversion fees discussed in Section "2.
Term of Agreement." shall be waived."
INSERT A NEW FIRST SUBPARAGRAPH AS FOLLOWS:
"This Agreement is contingent upon the approval of Client's charter
application by the Office of the Comptroller of the Currency. However,
if federal regulatory approval of the Client's applications are not
approved the Client shall be released from all contracts and
agreements and any liability except for a)the restocking charge and
other penalties assessed by IBM for return and restocking of any
machines ordered by or on Client's behalf under the current term of
this Agreement b)any third party connectivity services which have been
entered in to in order to accommodate Client's processing needs c) all
training and other installation services provided to Client which will
be billed at JHA's then current rates for such services"
IN SECTION "6. RESPONSIBILITY FOR DATA.":
STRIKE THE FIRST SUBPARAGRAPH AND REPLACE IT WITH:
"All records, data and other information transferred or transmitted to
XXX by Client (Client Data) shall remain the sole property of Client.
XXX shall consider all Client Data transmitted to it by Client to be
of a confidential nature and XXX shall use its best efforts to keep
such Client Data confidential and prevent unauthorized access to such
Client Data. XXX shall maintain the Client Data under commercially
reasonable storage conditions suitable for such records, data and
other information in a facility which is accessible only to authorized
employees of XXX or to governmental agents as provided for under
Section "5. Examination." above. Except as provided for in this
Agreement including the provisions of Section "5. Examination." XXX
shall not disclose, transfer, make available, or use the Client Data.
XXX shall not disclose the contents of this
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Agreement to any third party except as provided for under "Section 5.
Examination.". If XXX receives a subpoena or other order of a court or
other judicial tribunal pertaining to the disclosure of the release of
the Client Data, XXX shall, if it is legally permissible, immediately
notify Client to allow Client to challenge any such order."
IN THE THIRD SENTENCE OF THE SECOND SUBPARAGRAPH IMMEDIATELY FOLLOWING "EST"
INSERT "EXCLUDING HOLIDAYS RECOGNIZED BY THE FEDERAL RESERVE SYSTEM.".
IN SECTION "7. WARRANTIES, EXCLUSIVE REMEDIES AND LIMITATION OF LIABILITY.":
INSERT A NEW FIRST SUBPARAGRAPH AS FOLLOWS:
"XXX represents and warrants that the Software as more fully described
in and the subject of this Agreement, is designed to be used prior to,
during and after the calendar year 2000 A.D., and that said Software
will operate during each such time period and without error relating
to date data, specifically including any error relating to, or the
product of, date data which represents or references different
centuries or more than one century. Without limiting the generality of
the foregoing, XXX further represents and warrants:
(a) That said Software will not abnormally end or provide invalid or
incorrect results as a result of date data, specifically including
date data which represents or references different centuries or more
than one century;
(b) That said Software has been designed to ensure year 2000
compatibility, including but not limited to date data century
recognition, calculations which accommodate same century and
multi-century formulas and date values, and date data interface values
that reflect the century; and
(c) That said Software includes "year 2000 capabilities." For purposes
of this Addendum and the Agreement, "year 2000 capabilities" means the
Software:
(1) will manage and manipulate data involving dates, including
single century formulas and multi-century formulas, and will not
cause an abnormally ending scenario within the application or
generate incorrect values or invalid results involving such
dates;
(2) provides that all date-related user input functionalities
will use a technique called "windowing" to enter the century of
any date from a time window (i.e., 06/06/02 would be 06/06/2002)
and data fields include the indication of century; and
(3) provides that all date-related data interface functionalities
include the indication of century."
IN THE FIFTH SENTENCE OF THE FIRST SUBPARAGRAPH IMMEDIATELY FOLLOWING
"REASONABLE TIME" INSERT "(AS JUDGED BY THEN CURRENT INDUSTRY STANDARDS)".
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IN SECTION "11. ENTIRE AGREEMENT.":
IMMEDIATELY FOLLOWING THE THIRD SUBPARAGRAPH INSERT A NEW SUBPARAGRAPH AS
FOLLOWS:
"In the event that XXX wishes to assign this Agreement, Client shall permit
such assignment provided that if Client is in good faith unsatisfied with
the new servicer, Client may opt to deconvert from JHA's successor provided
that Client notifies JHA's successor within sixty (60) days following the
date of the assignment. Client has 120 days after such prior written notice
to complete such deconversion."
IN "13. TIME FRAMES FOR RECEIPT AND DELIVERY OF WORK.":
STRIKE ALL SUBPARAGRAPHS AND REPLACE THEM WITH THE FOLLOWING:
"XXX will assign a project manager to Client by January 1, 1999.
XXX shall make available the following:
- Access to on-line files between 7:00 A.M. and 7:00 P.M. daily.
- Access to print spool files for initiating of report printing at
Client location between 6:00 A.M. and 7:00 P.M. daily.
Additional access to on-line and print files may be made available
upon request by Client.
Client shall make data available to XXX for daily processing as
follows:
- Maintenance transactions for new and existing Client customers by
8:00 P.M.
- MICR data files for processed items by 8:00 P.M. Later
availability times may be made available on request by Client
for conditions.
XXX recognizes that availability of certain data required for
processing of Client's work (such as ATM and ACH transactions) may not
be under Client's direct control. XXX will make reasonable efforts to
accommodate the processing time frames of these other providers.
For Clients utilizing backroom check processing services of XXX a
courier pickup and delivery schedule will be established within 30
days of acceptance of this Agreement by XXX. Additionally, within (30)
thirty days following the execution of this Agreement XXX and Client
shall establish mutually acceptable default deadlines for the
installation of the following systems:
- ATM on-line system
- Vertex Teller
- Cash management system
- Voice response system
- Deposit platform system
- Loan platform system"
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In witness whereof, the parties have caused this CONTRACT MODIFICATION to be
executed by their duly authorized representatives.
XXXX XXXXX & ASSOCIATES, INC. NEW COMMERCE BANK
000 Xxxxxxx 00, X. X. Xxx 000 712 North Main
Monett, MO 65708 Xxxxxxxxxx, XX 00000
(XXX) (Client)
BY: /s/ Xxxxxxx X. Xxxxxxx BY: /s/ Xxxxx X. Xxxxxxx
-------------------------- ----------------------------
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx
----------------------------- -------------------------------
Type/Print Name Type/Print Name
TITLE: President and Chief Operating Officer TITLE: President
-------------------------------------- -------------------------
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