Exhibit 10.37
AURUM TECHNOLOGY INC.
INFORMATION TECHNOLOGY SERVICES AGREEMENT
THIS INFORMATION TECHNOLOGY SERVICES AGREEMENT by and between Aurum Technology
Inc., a Delaware corporation with its principal place of business located in
Plano, Texas ("Aurum"), and Customer, as identified below, (each of Aurum and
Customer, a "party," and collectively, the "parties") is made as of the later of
the dates on which the parties sign below.
Aurum provides information technology products and services to the financial
services industry, including eBusiness services, image-based item processing and
core systems and services.
Customer and Aurum want to establish a business relationship pursuant to which
Aurum will now, and as Customer may decide in the future, provide information
technology solutions to Customer.
The parties agree to the terms and conditions set forth on this page and in the
following attachments that are incorporated into the agreements of the parties
and made a part of them by this reference. Each schedule, and the terms and
conditions on this page and in the General Terms & Conditions, constitutes a
separate and independent legal agreement.
|X| General Terms & Conditions (v. 200 )
|_| Core Data Processing Schedule (v. 200 )
|_| Image/Item Processing Schedule (v. 200 )
|_| ATM and/or Debit Card Services Schedule (v. 200 )
|_| Telephone Banking System Schedule (v. 200 )
|_| Professional Services Schedule (v. 200 )
|X| Software Schedule (v. 2003.1-BSI Town Bank of Westfield 8.20.03)
|_| Addendum to (v. 200 )
THE AUTHORIZED OFFICER OR REPRESENTATIVE OF EACH PARTY has signed this
Information Technology Services Agreement as a legally binding obligation of
such party.
AURUM TECHNOLOGY INC. The Town Bank of Westfield
("CUSTOMER")
By: /s/ ▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------------- -------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------------- -------------------------------------
Name Name
SVP President & Chief Executive Officer
-------------------------------------- -------------------------------------
Title Title
9-2-2003 September 2, 2003
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Date Date
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------- -------------------------------------
(Street Address) (Street Address)
Suite 600
-------------------------------------- -------------------------------------
(Suite No. or Other) (Suite No. or Other)
1
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------- -------------------------------------
(City, State & Zip Code) (City, State & Zip Code)
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------- -------------------------------------
(Facsimile Number) (Facsimile Number)
General.Counsel@Aurum ▇▇▇▇▇▇▇▇▇.▇▇▇
-------------------------------------- -------------------------------------
(Email) (Email)
General Counsel
-------------------------------------- -------------------------------------
(Person to Whom Notices Should (Person to Whom Notices Should
be Addressed) be Addressed)
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AURUM TECHNOLOGY INC.
---------------------
SOFTWARE SCHEDULE
-----------------
BSI FORMS LICENSE
-----------------
1.) Customer will license the electronic forms products ("Products") listed
below, and further identified in the License/Support-Line Agreement to be
executed by and between Customer and Bankers Systems, Inc., a copy of
which is attached hereto and is incorporated herein by reference, under
the terms and conditions contained in the License/Support-Line Agreement.
Upon the effective date of the License/Support-Line Agreement, the
following Products will be available for use by Customer:
Bankers Systems Inc. eForms Deposit Application
Bankers Systems Inc. eForms ▇▇▇ Application
2.) Customer will pay to Aurum the following amounts for the applicable
license(s) to use the Products:
$1,500.00 for eForms Deposit Application Due Upon execution of this schedule
$750.00 for eForms ▇▇▇ Application Due Upon execution of this schedule
Following execution of this schedule, Aurum will invoice and Customer will
pay the appropriate annual usage/maintenance fee(s) stated on the
applicable exhibits to the License/Support/Line Agreement for the Products
identified in item 1 above.
3.) EXCEPT AS SET FORTH HEREIN, AURUM MAKES NO WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
PRODUCTS.
4.) This schedule is expressly conditioned upon acceptance of the
License/Support-Line Agreement by Bankers Systems, Inc.
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AURUM TECHNOLOGY INC.
INFORMATION TECHNOLOGY SERVICES AGREEMENT
THIS INFORMATION TECHNOLOGY SERVICES AGREEMENT by and between Aurum Technology
Inc., a Delaware corporation with its principal place of business located in
Plano, Texas ("Aurum"), and Customer, as identified below, (each of Aurum and
Customer, a "party," and collectively, the "parties") is made as of the later of
the dates on which the parties sign below.
Aurum provides information technology products and services to the financial
services industry, including eBusiness services, image-based item processing and
core systems and services.
Customer and Aurum want to establish a business relationship pursuant to which
Aurum will now, and as Customer may decide in the future, provide information
technology solutions to Customer.
The parties agree to the terms and conditions set forth on this page and in the
following attachments that are incorporated into the agreements of the parties
and made a part of them by this reference. Each schedule, and the terms and
conditions on this page and in the General Terms & Conditions, constitutes a
separate and independent legal agreement.
|X| General Terms & Conditions (v. 2003.2)
|X| Core Data Processing Schedule (v. 2003.1)
|X| Image/Item Processing Schedule (v. 2003.1)
|_| Professional Services Schedule (v. 200 )
|_| Network Services Schedule for Providing ATM and/or Debit Card
Services (v. 200 )
|_| Hardware Purchase Schedule (v. 200 )
|X| Addendum to General Terms & Conditions (v. 2003.1)
THE AUTHORIZED OFFICER OR REPRESENTATIVE OF EACH PARTY has signed this
Information Technology Services Agreement as a legally binding obligation of
such party.
AURUM TECHNOLOGY INC. The Town Bank of Westfield
("CUSTOMER")
By: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------- ------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------- ------------------------------------------
Name Name
President & Chief Executive Officer
----------------------------------- ------------------------------------------
Title Title
June 10, 2003
----------------------------------- ------------------------------------------
Date Date
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- ------------------------------------------
(Street Address) (Street Address)
Suite 600
----------------------------------- ------------------------------------------
(Suite No. or Other) (Suite No. or Other)
4
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- ------------------------------------------
(City, State & Zip Code) (City, State & Zip Code)
▇▇▇-▇▇▇-▇▇▇▇ 908-301-XXXX 0894
----------------------------------- ------------------------------------------
(Facsimile Number) (Facsimile Number)
General.Counsel@Aurum ▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
----------------------------------- ------------------------------------------
(Email) (Email)
General Counsel ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., Executive V.P.
----------------------------------- ------------------------------------------
(Person to Whom Notices Should (Person to Whom Notices Should
be Addressed) be Addressed)
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AURUM TECHNOLOGY INC.
INFORMATION TECHNOLOGY SERVICES AGREEMENT
GENERAL TERMS & CONDITIONS
PRODUCTS & SERVICES
1. Aurum will provide Customer the products or services that are described in
a schedule.
2. Aurum will be Customer's sole provider of recurring services described in
a schedule for the term set forth in that schedule.
3. If Customer requests Aurum to provide any product or service not
specifically addressed in a schedule, then Aurum may, but is not obligated
to, provide such additional product or service upon mutually agreeable
terms and conditions.
TERM & RENEWALS
4. An agreement is effective and binding upon both parties as of the date
made.
5. Aurum will deliver a product or begin to provide a service on the date set
forth in the schedule applicable to that product or service. In the case
of recurring services (as set forth in a schedule), Aurum will continue to
provide such services from the date that they begin through the initial
term set forth in the applicable schedule.
6. Unless either party gives the other written notice of its decision not to
renew a recurring service under a schedule at least 180 days prior to the
end of the initial term for that service, or of any renewal term for such
service, the term for that recurring service will automatically renew for
the renewal term set forth in the applicable schedule.
PAYMENTS
7. Customer will maintain a demand deposit account with an FDIC-insured
depository institution that has been identified to Aurum at least 10 days
prior to that date on which the first of any product or service is to be
first provided or delivered to Customer. Unless Customer has otherwise
paid such invoice by means acceptable to Aurum, Customer authorizes Aurum
to draft electronically by debit to Customer's designated account, no
earlier than 10 days after the date of the invoice, the monthly invoice
amount from the account. Customer agrees to execute and forward to Aurum
any other documents or agreements that Customer's depository institution
requires to authorize Aurum's drafting from the account. Customer will
maintain on deposit in the account enough funds to pay Aurum's draft.
8. Customer's account with Aurum will be delinquent if the debit transaction
is dishonored. Aurum will apply each month to the delinquent account
balance a late fee equal to the lesser of 2% of the outstanding and
delinquent account balance or the maximum lawful late fee.
9. If Customer in good faith disputes any invoiced amounts, Customer will
provide written notification of such dispute to Aurum, setting forth in
reasonable detail the amount and reason for the dispute. Such notice will
be given prior to the date that the disputed payment is due to Aurum. The
parties will immediately negotiate in good faith to resolve the dispute.
If the parties cannot resolve the dispute prior to the date when the
disputed amount would be due, then Aurum may, at its sole discretion,
require that the disputed amount be paid in full and without offset
against any other funds or obligations owing to Aurum pending the
resolution of such dispute.
10. Regardless of any earmarking or other designation by Customer, Aurum will
apply any payments received from or on behalf of Customer under any
schedule (a) first, to late fees due under any schedule, (b) next, to
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any outstanding and delinquent account balances (beginning with the oldest
charges) under any schedule and (c) finally, to any remaining invoiced
account balances.
11. Aurum may, with 60 days' prior written notice to Customer, increase the
fees and charges listed in a schedule for recurring services once in each
year of the initial or a renewal term after the first year of such term;
but Aurum may not in any year increase them more than the percentage
increase in the Employment Cost Index for Total Compensation (not
seasonally adjusted), Private Industry Workers, White Collar Occupations
Excluding Sales, June 1989=100, published monthly by the Bureau of Labor
Statistics, U.S. Department of Labor, for the 12-month period preceding
the increase. In calculating the percentage increase, Aurum will use the
most recently available ECI, as of a date that is no more than 30 and no
less than 10 days prior to the date for the required written notice, and
the ECI that preceded it by 12 months. If the ECI is no longer published
or is replaced by another or an adjusted index, Aurum may use a comparable
index in calculating increases.
12. Customer is responsible for paying any sales, use, excise, value-added,
personal property or other tax or duty, regardless of what it is called,
that any taxing authority levies on the products and services purchased
under a schedule; but Customer is not responsible for any tax based upon
Aurum's net income. Aurum will charge Customer the tax or duty that is its
responsibility.
13. If Customer gives or receives notice not to renew an agreement, Customer
will pay to Aurum an amount equal to the sum of (a) all amounts then due
and payable to Aurum under such agreement, (b) Aurum's then standard
charges for any additional services requested by Customer for deconversion
assistance (including charges for the resources utilized to prepare any
test or deconversion tapes) and (c) all other costs reasonably incurred by
Aurum in connection with such election not to renew (including
telecommunication line disengagement expenses and costs of terminating
leases on or shipping or storing any equipment provided to Customer by or
through Aurum under an agreement and the management fee on such costs set
forth in the applicable schedule) that relate to obligations which
Customer approved and which extend beyond the then current term of the
agreement. Aurum will invoice and Customer must pay all such amounts prior
to the earlier of the expiration date or the release of any test tapes or
other data or information of Customer.
DATA OWNERSHIP & PRIVACY
14. All information of Customer (including that of its customers) provided to
Aurum by Customer and contained in Aurum's data files, is the exclusive
property of Customer, and Aurum is only the custodian of that information.
Except as may be otherwise provided in a schedule, both Aurum and Customer
(and, as to both parties, their employees, agents and independent
contractors) will receive and hold all information communicated to one by
the other or the other's affiliates, whether before or after the date of
an agreement, in strict confidence, will use such information only for
purposes of an agreement and will not disclose such information without
the prior written consent of the other party. Each party will take all
commercially reasonable precautions to prevent the disclosure to outside
parties of such information including, but not limited to, the terms of an
agreement, except as required by legal, accounting or regulatory
requirements (including requirements of a Federal or state regulatory
authority with jurisdiction over Customer or Customer's business). If a
party is required to disclose any information of the other party in
accordance with any such legal, accounting or regulatory requirements,
then such party will, unless otherwise prohibited by law, promptly notify
the other party of such requirement and will cooperate with such other
party (at their expense) in their efforts, if any, to avoid or limit such
disclosure (including, without limitation, obtaining an injunction or an
appropriate redaction of the information in question). The provisions of
this section will survive the expiration or termination of an agreement.
15. Promptly after the termination of, or the expiration of the term
applicable to, an agreement and the payment to Aurum of all fees and
charges due under such agreement, Aurum will, at Customer's request and
expense, return to Customer all of Customer's information with respect to
such terminated or expired agreement in Aurum's then standard
machine-readable format and media. The provisions of this section will
survive the expiration or termination of an agreement.
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16. Aurum will use commercially reasonable efforts to (a) ensure the security
and confidentiality of Customer information (including that of its
customers), (b) protect against any anticipated threats or hazards to the
security or integrity of such information and (c) protect against
unauthorized access to or use of such information that could result in
substantial harm or inconvenience to any Customer. Aurum will employ and
maintain controlled access to systems in its data centers and other
facilities where such information is located.
17. Customer will inform Aurum prior to creating any connection to the
Internet or to any third-party computer network if such connection is made
from any point on Customer's computer network that is connected to Aurum's
network. Customer will, prior to making such a connection, first obtain
(and Aurum will, at Customer's request, provide a copy of) the firewall
and Internet security policy of Aurum and will abide by the rules
contained in it as the same may be amended from time to time to keep
current with technology. Customer will be solely responsible for complying
with the most current requirements of such policy.
BUSINESS CONTINUITY
18. Aurum will maintain for its own protection, with carriers that it deems in
its sole discretion appropriate and in amounts that it determines in its
sole discretion to be adequate, errors and omissions and employee
dishonesty coverage for its personnel and insurance coverage for loss from
fire, disaster or other causes contributing to interruption of normal
services, reconstruction of data file media and related processing costs,
additional expenses incurred to continue operations and business
interruption to reimburse Aurum for losses resulting from suspension of
services due to physical loss of equipment.
19. Each party will develop, maintain and, as necessary in the event of
business interruption, execute a business resumption plan and will provide
to the other party, its auditors and regulators access to the plan and to
plan test results as such other party may reasonably request from time to
time, including such information that may be reasonably required to ensure
that the plans are compatible. Aurum will not provide access to
information of other Aurum customers.
20. Each party will be responsible for training its own personnel as required
in connection with all applicable contingency planning activities.
21. Each party's contingency planning activities will comply with such of the
following regulatory policies as may be applicable to Customer's business,
as the same may be amended or replaced from time to time: (a) Federal
Deposit Insurance Corporation, Financial Institution Letter FIL-68-97,
dated July 14, 1997; (b) Federal Reserve System Supervision and
Regulation, Number SR 97-15, dated May 2, 1997; (c) Office of the
Comptroller of the Currency, OCC 97-23, dated May 16, 1997; (d) Office of
Thrift Supervision, CEO Ltr 72, dated July 23, 1997; and (e) National
Credit Union Administration, Letter to Credit Unions No. 97-CU-3, dated
April 7, 1997. If compliance with any amendments or replacements of these
policies would significantly increase Aurum's cost of providing products
or services, Aurum will be entitled to increase the fees and charges under
an agreement by an amount that reflects a pro rata allocation of Aurum's
increased cost among the Aurum customers affected by the change.
EXAMINATIONS & AUDITS
22. Aurum will provide auditors and inspectors that Customer designates in
writing with reasonable access to its facilities during business hours for
the limited purpose of performing audits or inspections of Customer's
business. Aurum will provide the assistance to such auditors and
inspectors as Aurum deems reasonable. Customer will bear all expenses
associated with such audit or inspection and will also compensate Aurum
for any services provided in connection with the audit or inspection.
Customer will insure that any audit or inspection requested by Customer
will be conducted without undue disruption to Aurum's business or
operations. Aurum will not (a) provide access to information of other
Aurum customers or (b) permit access to its facilities during such times
as Aurum deems that such access would be likely to create undue disruption
to its operations.
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23. Each year during the term of an agreement, Aurum will provide to Customer,
at Customer's request and at no additional charge, one copy of Aurum's
most recent audited financial statements.
24. Aurum will provide to Customer at Aurum's then standard charge, one copy
of Aurum's most recent service auditor's report, performed pursuant to
nationally recognized auditing standards for service organizations,
applicable to the services provided by Aurum to Customer.
WARRANTIES
25. Aurum will use due care in providing the services set forth in an
agreement.
26. Aurum represents and warrants that its providing the products and services
described in an agreement will not infringe on any United States letters
patent, any trade secret, or any copyright, trademark, service ▇▇▇▇, trade
name or similar proprietary right conferred by common law or by any law of
the United States or any state and that it has no knowledge of any
existing adverse claim against its right to provide such products and
services.
27. Aurum will use commercially reasonable efforts to provide its services in
a manner that will allow Customer to comply with Federal laws, rules and
regulations as the same may be amended or replaced from time to time. If
Customer believes that a modification to Aurum's services is required
under any law, rule or regulation, Customer will promptly so inform Aurum.
Aurum will perform any modifications to the manner in which it provides
its services that Aurum determines are necessary or desirable; provided,
if any such changes or modifications result in an increase in Aurum's cost
of providing such services, Aurum will be entitled to increase the charges
under an agreement by an amount that reflects a pro rata allocation of
Aurum's increased cost among the Aurum customers using such services.
Customer acknowledges that Aurum has no duty or responsibility to modify
any third-party product, except to the extent that the vendor thereof has
such a duty or responsibility to modify such product pursuant to the
applicable license agreement between Aurum and such vendor. New or
enhanced features, functions, reports or other services that may result
from such modifications may be provided to Customer at an additional cost.
28. Aurum represents and warrants that, in providing the products and services
described in an agreement, it will comply in all material respects with
all applicable laws, rules and regulations.
29. EXCEPT AS EXPRESSLY SET FORTH IN AN AGREEMENT (INCLUDING THESE TERMS AND
CONDITIONS), AURUM DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, WITH
RESPECT TO ANY PRODUCT OR SERVICE PROVIDED UNDER SUCH AGREEMENT, ABOUT ITS
PERFORMANCE OR LEGAL OR REGULATORY COMPLIANCE, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, ACCURACY OF INFORMATIONAL CONTENT OR SYSTEM INTEGRATION.
LIABILITY; INDEMNIFICATION
30. Customer will balance reports to verify master file information and will
inspect and review all reports and other output (whether printed,
microfiche or electronically transmitted) created from data provided by
Customer to Aurum. Customer will reject all incorrect reports or output
(a) within 2 business days after receipt of daily reports or output, (b)
within 5 business days after receipt of annual, quarterly or monthly
reports or output and (c) within 3 business days after receipt of all
other reports or output. Aurum will correct any errors in Customer's files
that result in errors in reports or other output where such errors are
solely because of either malfunctions of Aurum's equipment or its systems
or errors of Aurum's operators, programmers or other personnel and are
called to Aurum's attention within the time frames specified for balancing
and rejecting reports. Aurum will, to the extent reasonably practicable,
correct any other errors for an additional charge. The foregoing will be
Customer's exclusive remedies for errors in reports or other output
provided by Aurum older an agreement.
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31. Aurum will be responsible for data and other information (including
personal property) of Customer from the time that such is received by
Aurum at its facilities until it is, in the case of data, processed and
files based thereon are transmitted to Customer and, in the case of other
information (including personal property), released for pickup at Aurum's
facility to a courier or other representative designated by Customer,
provided, Aurum's liability for the destruction or disappearance of data
or other information (including personal property) will be limited to
cases where the destruction or disappearance is due entirely to the
negligence or willful misconduct of Aurum and, if so, Aurum's sole
obligation is to reconstruct the data or other information (including
personal property) from back-up files that Aurum is obligated by an
agreement to create and maintain or from files created and maintained by
Customer.
32. If either party has a claim against the other based on an agreement
including, but not limited to, its formation or a breach of it, such party
must bring that claim, by filing with the other party a request for
mediation, within 2 years of the occurrence that is the basis for the
claim.
33. Aurum's liability with respect to any claim based on a service provided
under an agreement is limited to the total fees and charges actually paid
to Aurum for that service in the 3-month period before that occurrence. In
the case of product purchases, Aurum's liability is limited to the
purchase price actually paid to Aurum for the product. The foregoing
limitations do not apply to infringement claims made under an agreement.
34. Regardless of anything else in an agreement and to the greatest extent
permitted by law, no court, tribunal, arbitrator or presiding officer of
any administrative or other proceeding may award to Customer any special,
indirect, consequential, speculative or incidental damages (including,
without limitation, lost profits or goodwill) or punitive damages in any
dispute (including, without limitation, any dispute based on alleged
fraudulent, willful or dishonest conduct) against Aurum, and Customer
expressly, completely and irrevocably waives any right to obtain such
damages in connection with any such proceeding. Customer acknowledges
that, prior to agreeing to the foregoing provision, it has consulted, or
waived the right to consult, legal counsel as to the consequences of this
provision. The foregoing limitations do not apply to infringement claims
made under an agreement.
35. Neither party will be liable for any default or delay in the performance
of its obligations under an agreement (except for the payment of money) if
and to the extent such default or delay is caused, directly or indirectly,
by acts of God, governmental acts, accidents, wars (declared or
undeclared), terrorism, threats of terrorism, acts of a public enemy,
epidemics or quarantines, riots or civil unrest, labor disputes, fires,
storms, earthquakes, floods or elements of nature, Federal, state or
municipal actions or regulations, failure or refusal by any regulatory or
other agency to act upon or grant permits or licenses, or any other cause
beyond the reasonable control of such party, provided such default or
delay could not have been prevented by commercially reasonable precautions
and cannot reasonably be circumvented by the non-performing party through
the use of commercially reasonable alternative sources, workaround plans
or other means.
36. Aurum and Customer each will indemnify, defend and hold harmless the other
from any and all claims, actions, damages, liabilities, costs and
expenses, including without limitation, reasonable attorneys' fees and
other costs, arising out of any claims of infringement of any United
States letters patent, any trade secret, or any copyright, trademark,
service ▇▇▇▇, trade name or similar proprietary right conferred by common
law or by any law of the United States or any state alleged to have
occurred because of the products or services provided by the indemnitor.
This indemnity will not apply unless the indemnitee informs the indemnitor
as soon as practicable, but in no event more than 30 days, of any claim or
action alleging such infringement and has given the indemnitor full
opportunity to control the response thereto and the defense thereof,
including, without limitation, any agreement relating to settlement.
37. Customer will indemnify, defend and hold harmless Aurum against any claim
made by any person that is based on Aurum's providing the products or
services described in an agreement, but this indemnity, defense and hold
harmless will not apply if the claim arises from Aurum's gross negligence
or willful misconduct.
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TERMINATION
38. If Customer defaults in the payment of any charges, fees or other amounts
due under any agreement with Aurum and fails to cure such default within
10 calendar days after having received written notice of such default,
then Aurum, by giving Customer at least 30 days prior written notice, may
(but is not obligated to) terminate any one or all agreements that it has
with Customer as of the date specified in such notice.
39. If either party materially defaults in its performance under an agreement
(except for non-payment of amounts due to Aurum), after receiving written
notice of such default the defaulting party will promptly commence curing
the default and thereafter will proceed with commercially reasonable
efforts to substantially cure the default. If the defaulting party fails
to substantially cure such default as quickly as practicable (but in no
event beyond the date that is 90 days after receiving written notice of
the default or, for those defaults which cannot reasonably be cured within
90 days, the date that is within the period of time which is commercially
reasonable to cure the default), then the party not in default may, by
giving the defaulting party at least 30 days' prior written notice,
terminate such agreement (but no other agreement) as of the date specified
in such notice.
40. If (a) either party (i) becomes or is declared insolvent or bankrupt, is
the subject of any proceedings relating to its liquidation or insolvency
or for the appointment of a receiver, conservator or similar officer, or
makes an assignment for the benefit of all or substantially all of its
creditors or enters into any agreement for the composition, extension or
readjustment of all or substantially all of its obligations or (ii) fails
to perform its obligations under an agreement to prevent or circumvent a
default or delay in the performance of its obligations under an agreement
that is caused by an event beyond such party's reasonable control and (b)
there is, as a result of that event or failure, a material adverse effect
upon the non-terminating party's performance under an agreement, then the
other party may, by giving prior written notice thereof to the
non-terminating party, terminate such agreement (but no other agreement)
as of the date specified in such notice.
41. Subject to payment of the liquidated damages provided for in the
applicable schedule, Customer may for any reason (including acquisition of
50% or more of the stock or assets of Customer by another person or
entity, whether by merger, reorganization, sale, transfer or other similar
transaction) terminate an agreement by giving Aurum prior written notice
of such termination and specifying the date of termination in such notice,
which date will be not less than 60 days after the date of the notice and
which date must be reasonably acceptable to Aurum.
42. During any period prior to termination of an agreement (including
specified notice periods), Aurum will provide the products and services
under such agreement and will charge Customer for such products and
services, and Aurum will reasonably cooperate with Customer in its
transition to a new service provider.
MISCELLANEOUS
43. Each schedule, and these terms and conditions that are by reference a part
of it, constitutes a separate and independent legal agreement. The parties
may agree to one or more additional schedule(s); and, if so, the
agreement(s) established will be evidenced by signing an Information
Technology Services Agreement that will incorporate these terms and
conditions and those set forth in such schedule(s).
44. Each agreement is the entire agreement of the parties and supersedes all
other prior agreements and understandings, whether written or verbal, with
respect to products and services described in that agreement. Each
agreement may not be amended except in a writing signed on behalf of both
parties, and no waiver of any provision of or right under an agreement
will be effective against a party unless that waiver is in a writing
signed on behalf of the party against whom the waiver is asserted.
45. Each agreement is binding on the parties and their respective successors
and permitted assigns. Neither party may assign an agreement unless it
obtains the prior written consent of the other party, which consent will
not be unreasonably withheld. The following transactions relating to
either party will not require
11
approval of the other party under this section: an initial public offering
of stock, a sale of stock, any merger (including a reincorporation
merger), consolidation, reorganization or stock exchange or a sale of all
or substantially all of the assets of a party or of an entire line of
business of a party or other similar or related transaction in which such
party is the surviving entity or, if such party is not the surviving
entity, the surviving or succeeding entity continues to conduct the
business conducted by such party prior to consummation of the transaction.
46. If a dispute arises out of or relates to an agreement, including but not
limited to its formation or a breach of it, and if the dispute cannot be
settled through negotiation, the parties agree first to try in good faith
to settle the dispute by mediation conducted under the Commercial
Mediation Rules of the American Arbitration Association (except for those
changes specifically set forth in these terms and conditions), or such
other rules and procedures to which the parties and the mediator may
agree, before resorting to litigation or some other dispute resolution
procedure. Mediation will commence when a party sends a written request
for mediation of a dispute to the other party, and the parties will select
a single mediator to serve. The parties will each pay their own expenses
in connection with the mediation (including attorneys' fees and other
costs), and they will share equally in paying the mediator (including any
fees and other costs).
47. All notices, claims, demands and other communications between the parties
must be in writing and will be deemed given (a) in the case of a facsimile
transmission or email, when the sender has received an electronic
confirmation of transmission by the transmitting equipment (provided that
such transmission is completed prior to 5:00 p.m., local time at the
location of the recipient, on a business day; otherwise, such transmission
will be deemed to have been received on the next business day); (b) in the
case of delivery by a standard overnight carrier, upon the date of
delivery indicated in the records of such carrier; or (c) in the case of
delivery by hand, when delivered by hand addressed to the person at the
address set forth on the signature page of an agreement (or to another
address provided by notice under this section).
48. The laws of the State of Texas, excluding its choice of law principles,
will govern the relationship between the parties and disputes,
differences, controversies or claims directly or indirectly based on an
agreement, including those relating to the formation, validity,
interpretation, construction, performance, breach, enforceability or
termination of an agreement and duties based on tort, contract or
statutory concepts.
49. THE PARTIES HEREBY IRREVOCABLY AGREE THAT JURISDICTION AND VENUE IN ANY
ACTION BROUGHT BY ANY PARTY PURSUANT TO AN AGREEMENT WILL EXCLUSIVELY LIE
IN ANY FEDERAL OR STATE COURT LOCATED IN DALLAS COUNTY, TEXAS. BY
EXECUTION AND DELIVERY OF AN AGREEMENT, EACH PARTY, ON BEHALF OF ITSELF
AND ITS PERMITTED SUCCESSORS AND ASSIGNS, IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT OVER ITSELF AND ITS PROPERTY WITH RESPECT
TO ANY SUCH ACTION. THE PARTIES IRREVOCABLY AGREE THAT VENUE WOULD BE
PROPER IN SUCH COURT, AND HEREBY WAIVE ANY OBJECTION THAT SUCH COURT IS AN
IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF SUCH ACTION. THE
PARTIES FURTHER AGREE THAT THE MAILING BY CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED, OF ANY PROCESS REQUIRED BY ANY SUCH COURT WILL
CONSTITUTE VALID AND LAWFUL SERVICE OF PROCESS AGAINST THEM, WITHOUT
NECESSITY FOR SERVICE BY ANY OTHER MEANS PROVIDED BY STATUTE OR RULE OF
COURT.
50. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING BASED ON AN AGREEMENT.
51. Except as expressly provided for with respect to mediation, the prevailing
party in any action brought by a party pursuant to an agreement is
entitled to recover reasonable attorneys' fees and other costs incurred in
connection with such action including, but not limited to, expenses and
costs of investigation, witness fees and travel, in addition to any other
relief to which the prevailing party may be entitled.
12
52. The parties understand that an agreement is a legally binding agreement
that may affect their rights. Each party represents to the other that they
have received legal advice from counsel of their choice regarding the
meaning and legal significance of an agreement and that they are satisfied
with their legal counsel and the advice received from their legal counsel
or that they have waived their right to do so.
53. If any provision of an agreement requires judicial or administrative
interpretation or interpretation by an arbitrator, mediator or similar
person, such person interpreting that agreement will not apply a
presumption that its terms will be more strictly construed against the
person who itself or through its agent prepared that document.
54. The invalidity or unenforceability of any provision of an agreement will
not affect the validity or enforceability of the other provisions of that
agreement and such other provisions will remain in full force and effect.
If any provision of an agreement is deemed to be unenforceable by reason
of its extent, duration, scope or otherwise, then the parties contemplate
that the person making that determination will reduce such extent,
duration, scope or other provision and will enforce it in its reduced form
for all purposes contemplated by that agreement. Nothing in an agreement,
express or implied, is intended to confer upon any person not a party to
that agreement any rights or remedies of any nature whatsoever under or by
reason of that agreement.
55. In the event of a conflict between these terms and conditions and any
provision in a schedule, these terms and conditions will govern the
interpretation of an agreement.
56. During the term of an agreement and for a period of 12 months thereafter,
neither party will, without the prior written consent of the other, offer
employment to or employ any person employed then or within the preceding
12 months by the other party, if the person was involved in providing or
receiving the products or services covered by that agreement.
57. Termination of an agreement will not affect the rights or obligations of
the parties that arose prior to, or that are expressly intended by their
terms to continue beyond, any such termination, and such rights or
obligations, and the dispute resolution procedures set forth in these
terms and conditions, will survive any such termination.
13
ADDENDUM TO
AURUM TECHNOLOGY INC.
INFORMATION TECHNOLOGY SERVICES AGREEMENT
GENERAL TERMS & CONDITIONS
Each of the provisions of this addendum is incorporated into the General Terms &
Conditions and expressly supersedes such terms and conditions to the extent they
are inconsistent with them.
1.) Paragraph 9 is hereby deleted in its entirety and replaced by the
following:
"If Customer in good faith disputes any invoiced amounts, Customer
will provide written notification of such dispute to Aurum, setting
forth in reasonable detail the amount and reason for the dispute.
Such notice will be given prior to the date that the disputed
payment is due to Aurum. The parties will immediately negotiate in
good faith to resolve the dispute. If the parties cannot resolve the
dispute prior to the date when the disputed amount would be due,
then Customer may withhold the disputed amount or 5% of the total
invoice amount for the invoice containing the disputed amount,
whichever is less. Customer shall have no further right to off set
against any other funds or obligations owing to Aurum, pending the
resolution of such dispute."
2.) Paragraph 21 is hereby deleted in its entirety and replaced by the
following:
"Each party's contingency planning activities will comply with such
of the following regulatory policies as may be applicable to
Customer's business, as the same may be amended or replaced from
time to time: (a) Federal Deposit Insurance Corporation, Financial
Institution Letter FIL-68-97, dated July 14, 1997; (b) Federal
Reserve System Supervision and Regulation, Number SR 97-15, dated
May 2, 1997; (c) Office of the Comptroller of the Currency, OCC
97-23, dated May 16, 1997; (d) Office of Thrift Supervision, CEO Ltr
72, dated July 23, 1997; and (e) National Credit Union
Administration, Letter to Credit Unions No. 97-CU-3, dated April 7,
1997. If compliance with any amendments or replacements of these
policies would significantly increase Aurum's cost of providing
products or services, Aurum will be entitled to increase the fees
and charges under an agreement by an amount that reflects a pro rata
allocation of Aurum's increased cost among the Aurum customers
affected by the change. However, any increase in the fees and
charges under an agreement under this provision will not exceed 20%
of the total monthly invoice amount paid by Customer to Aurum for
all services Customer is receiving as of the effective date of such
increase. For purposes of this provision only, the total monthly
invoice amount will be based on the average of the fees paid to
Aurum by Customer for all services received by Customer from Aurum
during the 12 months preceding the effective date of such increase,
recalculated based on the account volume, number of users or other
applicable measure as of the effective date of such increase."
3.) For the agreement formed by Customer's Core Processing Schedule only
Paragraph 30 is hereby deleted in its entirety and replaced by the
following:
"Customer will balance reports to verify master file information and
will inspect and review all reports and other output (whether
printed, microfiche or electronically transmitted) created from data
provided by Customer to Aurum. Customer will reject all incorrect
reports or output (a) within 3 business days after receipt of daily
reports or output, (b) within 7 business days after receipt of
annual, quarterly or monthly reports or output and (c) within 4
business days after receipt of all other reports or output. Aurum
will correct any errors in Customer's files that result in errors in
reports or other output where such errors are solely because of
either malfunctions of Aurum's equipment or its systems or errors of
Aurum's operators, programmers or other personnel and are called to
Aurum's attention within the time frames specified for balancing and
rejecting reports. Aurum will, to the extent reasonably practicable,
correct any other errors for an additional charge. The foregoing
will be Customer's exclusive remedies for errors in reports or other
output provided by Aurum under an agreement."
14
4.) Paragraph 31 is hereby deleted in its entirety and replaced by the
following:
"Aurum will be responsible for data and other information (including
personal property) of Customer from the time that such is received
by Aurum at its facilities until it is, in the case of data,
processed and files based thereon are transmitted to Customer and,
in the case of other information (including personal property),
released for pickup at Aurum's facility to a courier or other
representative designated by Customer, provided, Aurum's liability
for the destruction or disappearance of data or other information
(including personal property) will be limited to cases where the
destruction or disappearance is due to the negligence or willful
misconduct of Aurum while such information is in the control and/or
custody of Aurum and such information, in the case of data, was not
in any way damaged or lost in transmission to Aurum or due to time
bombs, Trojan horses, other viruses or other destructive code that
was included in such information prior to its receipt by Aurum, or
in the case of other information (including personal property), was
not in any way damaged or incomplete prior to its receipt by Aurum,
and if so, Aurum's sole obligation is to reconstruct the data or
other information (including personal property) from back-up files
that Aurum is obligated by an agreement to create and maintain or
from files created and maintained by Customer."
5.) Paragraph 33 is hereby deleted in its entirety and replaced by the
following:
"Aurum's liability with respect to any claim based on a service
provided under an agreement is limited to the total fees and charges
actually paid to Aurum for that service in the 6-month period before
that occurrence. In the case of product purchases, Aurum's liability
is limited to the purchase price actually paid to Aurum for the
product. The foregoing limitations do not apply to infringement
claims made under an agreement."
IN WITNESS WHEREOF, the parties have duly executed this addendum by the duly
authorized signatures below as of June 10, 2003.
AURUM TECHNOLOGY INC. TOWN BANK OF WESTFIELD
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------- --------------------------------
Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------- ------------------------------
Title: Vice President Title: President & CEO
------------------------------- -----------------------------
Date: 6/18/2003 Date: June 10, 2003
-------------------------------- ------------------------------
15
AURUM TECHNOLOGY INC.
---------------------
CORE PROCESSING SCHEDULE
------------------------
INITIAL TERM
Five (5) years
RENEWAL TERM
Two (2) years
BEGINNING DATE FOR SERVICES
September 19, 2003 or a mutually agreed upon date not later than
October 5, 2003.
I. Definitions:
The following definitions apply to the Services described in this Schedule and
are provided as a supplement to definitions included in the Terms & Conditions.
(a) "Additional Services" are any Service which is not a Basic Service,
an Optional Service, or a Conversion Service, requested of AURUM to
perform by Customer.
(b) "AURUM Systems" are all Systems, except for Systems provided by
Customer, used by AURUM to provide Services, including without
limitation any improvements, modifications, or enhancements made by
AURUM to any System and provided to Customer under the Terms &
Conditions.
(c) "Basic Services" are the Services listed in Exhibit A.
(d) "Business Day" is each weekday, Monday through Friday, which is not
a holiday of Customer.
(e) "Conversion Services" are those services and listed in Exhibit C and
instructions reasonably required for Customer to convert to and use
the AURUM Systems that are performed by AURUM on a mutually
agreeable schedule. Customer will cooperate in the conversion effort
and timely provide whatever information, data, clerical and office
support, management decisions, approvals, and signoffs that AURUM
reasonably requires. According to a plan to be developed by Customer
and AURUM, AURUM will train a mutually designated group of
Customer's personnel in the proper use of the AURUM Systems to
enable such personnel to train Customer`s user personnel in the use
of the AURUM Systems. Customer will cooperate with AURUM in
scheduling training in conjunction with Customer's conversion to the
AURUM Systems.
(f) "Customer Systems" are the Systems listed in Exhibit D to be
provided by Customer for use in conjunction with AURUM Systems.
(g) "Data Center" is the space at one or more locations where AURUM
performs Services, excluding Customer locations.
(h) "Equipment" is all telecommunications lines, modems, and other
equipment, including without limitation terminals, control units,
ports, logical units, and all related data transmission services
required by AURUM for Customer to access the AURUM Systems, transmit
data to AURUM, and receive reports and other output from AURUM.
(i) Operational Date" is the later of (i) the Beginning Date for
Services, or (ii) the first day of the calendar month in which any
Conversion Services are completed and Customer has the capability to
input transactions or data for processing by AURUM.
(j) "Optional Services" are the Services listed in Exhibit B.
16
(k) "PC Software" means, if applicable, the PC-based software
applications to be utilized by Customer in connection with the
Services, as such software applications are described in Exhibit A.
(l) "Service" or "Services" are all of the services to be provided by
AURUM under the Terms & Conditions, which include the Basic
Services, Optional Services, Conversion Services, and Additional
Services.
(m) "System" or "Systems" are (i) computer programs, including without
limitation software, firmware, application programs, operating
systems, files, and utilities; (ii) supporting documentation for
such computer programs, including without limitation input and
output formats, program listings, narrative descriptions, operating
instructions and procedures, user and training documentation,
special forms, and source code; and (iii) the tangible media upon
which such programs are recorded, including without limitation
chips, tapes, disks, and diskettes.
II. Core Processing Services
AURUM will:
(a) Beginning on the Operational Date, operate the AURUM Systems at the
Data Center, and accept data and other input from Customer. AURUM
will make daily, monthly, and other reports and output, including
specially requested reports, available to Customer at the Data
Center for delivery or transmit them to Customer, subject to
Customer's timely delivery or transmission of data and other input
to the Data Center for processing. AURUM will provide the Services
in accordance with the schedule provided to Customer by AURUM upon
commencement of the Services, which may be updated by AURUM from
time to time. AURUM will not be responsible for the loss of any
input or output during transit.
(b) Require Customer to comply with all operating instructions for the
AURUM Systems that are issued by AURUM from time to time. Except as
otherwise provided in the Terms & Conditions, Customer will be
responsible for the supervision, management, and control of its use
of the AURUM Systems, including without limitation (i) implementing
sufficient procedures to satisfy its requirements for the security
and accuracy of the data and other input Customer provides, (ii)
implementing reasonable procedures to verify reports and other
output from AURUM within the time frames specified in Paragraph 30
of Terms & Conditions, and (iii) specifying the methods of accrual
calculation to be used by AURUM in providing the Services from the
options available in the AURUM Systems.
(c) Provide all Equipment at Customer's expense, including related
shipping, installation, and maintenance Fees, and advise Customer on
the compatibility of its Equipment with the AURUM Systems. Customer
may elect, with AURUM's approval, to provide such Equipment at
Customer's expense, subject to Fees for Additional Services required
for AURUM Systems access or configuration. Customer will maintain
all Equipment owned or leased by Customer in good working order in
accordance with manufacturer's specifications.
(d) Provide for Customer's use one copy of AURUM's standard user
documentation and one copy of any revisions describing the
preparation of input for and use of output from the AURUM Systems.
Such documentation will address the reports provided under the Terms
& Conditions. Upon Customer's request, AURUM will provide additional
copies of such documentation at AURUM's then standard Fees.
(e) Correct any errors or omissions in customer files that result in
errors or omissions in reports or other output where such errors or
omissions (i) are due solely to either malfunctions of AURUM's
equipment or the AURUM Systems or errors of AURUM's operators,
programmers, or other personnel, and (ii) are called to AURUM's
attention within the time frames specified in Paragraph
17
30 of Terms & Conditions. AURUM will, to the extent reasonably
practicable, correct any other errors as an Additional Service.
(f) Provide standard AURUM forms for use at the Data Center. Unless
otherwise agreed in writing, Customer will provide or pay for all
customized forms required by Customer. These forms will conform to
AURUM's reasonable specifications. Customer will also provide all
forms produced or printed at Customer's premises and required for
the performance of Services, or will pay mutually agreed Fees to
AURUM for such forms if provided by AURUM at Customer's request.
(g) Establish, modify, or substitute from time to time any Equipment,
processing priorities, programs, or procedures used in the operation
of the AURUM Systems or the provision of the Services that AURUM
reasonably deems necessary, and notify Customer of any such changes
that will affect Customer's operations.
III. Liquidated Damages
The parties acknowledge that upon termination of the Agreement of which this
schedule is a part for any reason, Aurum will incur damages resulting from such
termination that will be difficult or impossible to ascertain.
Prior to such termination, except termination by Customer for a material default
or for insolvency, bankruptcy or the like, and in addition to all other amounts
then due to Aurum, Customer will pay to Aurum as reasonable liquidated damages
(and not as a penalty) the sum of (a) all costs reasonably incurred by Aurum in
connection with such termination, including telecommunication line disengagement
expenses and costs of terminating leases on or shipping or storing any equipment
provided to Customer by or through Aurum under the Agreement of which this
schedule is a part, a 25% management fee on such costs, Aurum's Fees for any
additional services requested by Customer for de-conversion assistance and
Aurum's then standard Fees for any test or de-conversion tapes and (b) the
product of (1) the average monthly Fee to Customer for services under the
Agreement of which this schedule is a part during the 12 calendar months
immediately preceding the calendar month in which notice of termination was
given, (2) the total number of months remaining in either the term then in
effect from the effective date of the termination and (3) 80% for termination on
or before the end of the second year following the Beginning Date for Services,
70% for termination after the end of second year following the Beginning Date
for Services but before the end of the third year following the Beginning Date
for Services, 60% for termination after the end of the third year following the
Beginning Date for Services but before the end of the fourth year following the
Beginning Date for Services and 50% for termination after the end of the fourth
year following the Beginning Date for Services. If the Agreement of which this
schedule is a part has been in effect less than 12 calendar months prior to the
giving of the notice of termination, then the parties will compute the amount
due under subsection (b) above using the average monthly Fee for services made
during such lesser number of calendar months. If termination of the Agreement of
which this schedule is a part occurs prior to the providing of any services,
then the parties will compute the amount due under subsection (b) above assuming
an estimated monthly Fee that Aurum would have reasonably expected.
In the case of termination by Customer for a material default or for insolvency,
bankruptcy or the like, Customer will pay to Aurum only the amounts set forth in
subsection (a) of the preceding paragraph.
Aurum may, at its option, invoice Customer for the greater of (a) Aurum's good
faith estimate of the termination costs or (b) the aggregate of the Fees payable
to Aurum for the 2 calendar months preceding the month in which notice of
termination is given. If the actual termination costs are greater or less than
the amount of Aurum's invoice that is paid by Customer under the immediately
preceding sentence, then Customer will pay Aurum, or Aurum will refund to
Customer, as the case may be, the difference between the actual termination
costs and the amount paid.
Aurum will invoice and Customer will pay all amounts payable under this section
prior to the earlier of (a) the effective date of such termination or (b) the
release to Customer of any test tapes or other data or information of Customer.
18
IV. Service Fees
Customer will pay AURUM for the Services as follows:
(a) For Basic Services, the Fees listed in Exhibit A.
(b) Months 1-3 Customer will be invoiced at the lowest tier rate of $.70
and starting the fourth month, at the volume based rates in Exhibit
A.
(b) For Optional Services, AURUM's then standard Fees for such Services
listed in Exhibit B.
(c) For Conversion Services, the applicable conversion Fee listed in
Exhibit C.
(d) For Additional Services, AURUM's then standard Fees for such
Services, or, if AURUM then has no standard Fees for such Services,
upon whatever other basis that the parties agree.
(e) All costs incurred by AURUM (i) in mailing reports or other output
to Customer, its customers, or third parties, and (ii) in
transporting, shipping, or delivering reports, output, or input
between the Data Center and Customer's locations.
(f) All actual, out-of-pocket costs and expenses, including, without
limitation, travel and travel-related expenses, which are incurred
by AURUM in providing Services when incurred at Customer's request.
(g) Any other Fees expressly provided in the Terms and Conditions
19
Exhibit A
---------
Basic Services
--------------
Core Account Processing - Monthly Rate
-----------------------------------------------------------------------------------------------------------
Service Description Unit of Monthly Fee Monthly Fee Monthly Fee
Measure First 2,500 2,501-7,500 7,501 >
-----------------------------------------------------------------------------------------------------------
A. Combined Deposit Services
-----------------------------------------------------------------------------------------------------------
Non -Interest Bearing Account Fee Account $1.00 $.85 $.70
-----------------------------------------------------------------------------------------------------------
Upgrades Upgrade N/C N/C N/C
-----------------------------------------------------------------------------------------------------------
B. Combined Lending Services
-----------------------------------------------------------------------------------------------------------
Account Fee Account $1.00 $.85 $.70
-----------------------------------------------------------------------------------------------------------
Upgrades Upgrade N/C N/C N/C
-----------------------------------------------------------------------------------------------------------
C. Safe Deposit Services
-----------------------------------------------------------------------------------------------------------
Account Fee Account $1.00 $.85 $.70
-----------------------------------------------------------------------------------------------------------
Upgrades Upgrade N/C N/C N/C
-----------------------------------------------------------------------------------------------------------
D. Shareholder Services
-----------------------------------------------------------------------------------------------------------
Account Fee Account $1.00 $.85 $.70
-----------------------------------------------------------------------------------------------------------
Upgrades Upgrade N/C N/C N/C
-----------------------------------------------------------------------------------------------------------
E. General Ledger Services
-----------------------------------------------------------------------------------------------------------
Account Fee Account $1.00 $.85 $.70
-----------------------------------------------------------------------------------------------------------
Upgrades Upgrade N/C N/C N/C
-----------------------------------------------------------------------------------------------------------
These per account fees also include the following services.
Single Integrated System Integrated Accounts Payable Accounting
Integrated CIF Integrated Regulatory Reporting
Integrated Platform - Deposits Integrated Profitability Analysis
Integrated Platform - Loans Parameter Driven
Integrated Teller Advanced Security
Integrated CRM Shared Tables for Rates, Service Fees, etc.
Integrated ODBC Report Writer Customer/Account Level Messaging
Integrated Windows Presentation Option or On line Help and Documentation
Integrated Browser Presentation Option Unlimited History Retention All Except DDA - 60 Days
Integrated OFAC Reporting OFAC
Integrated Safe Deposit Box Accounting Elan' Real Time Interface
Integrated Shareholder Accounting
Integrated General Ledger
20
Exhibit B
---------
Optional Services
-----------------
Optional Services are not included in the Basic Services One-time Fee, Monthly
Fee, or Other Fees. Prices are as of the Effective Start Date, are subject to
change by AURUM at any time , and may be discontinued by AURUM with notice.
-------------------------------------------------------------------------------------------------------------------
Unit of One-time Monthly Annual
Service Description Measure Fee Fee Fee
-------------------------------------------------------------------------------------------------------------------
A. Deposit Services
-------------------------------------------------------------------------------------------------------------------
On-line NSF Exception Processing Module N/C
-------------------------------------------------------------------------------------------------------------------
RIP System (Return item Processing) Module N/C
-------------------------------------------------------------------------------------------------------------------
12 Month Demand Deposit Rolling History Module $100
-------------------------------------------------------------------------------------------------------------------
NSF Notices Notice N/C
-------------------------------------------------------------------------------------------------------------------
Customer Notices Notice N/C
-------------------------------------------------------------------------------------------------------------------
▇▇▇ Statement Statement N/C
-------------------------------------------------------------------------------------------------------------------
Account Reconciliation Services (ARP)
-------------------------------------------------------------------------------------------------------------------
Account $5
-------------------------------------------------------------------------------------------------------------------
Transaction $0.045
-------------------------------------------------------------------------------------------------------------------
B. Lending Services
-------------------------------------------------------------------------------------------------------------------
Insurance Reporting Tape $40
-------------------------------------------------------------------------------------------------------------------
Credit Reporting Tape $40
-------------------------------------------------------------------------------------------------------------------
Coupon Tape Tape $40
-------------------------------------------------------------------------------------------------------------------
Notices Notice N/C
-------------------------------------------------------------------------------------------------------------------
Loan Amortization Schedule $1.00
-------------------------------------------------------------------------------------------------------------------
C. Automated Clearing House (ACH)
-------------------------------------------------------------------------------------------------------------------
Base Fee Month N/C
-------------------------------------------------------------------------------------------------------------------
Transaction Fee Transaction $0.07
-------------------------------------------------------------------------------------------------------------------
D. Over-the-Counter Reporting
-------------------------------------------------------------------------------------------------------------------
Fee (Bonds, etc.) Per Item $0.50
-------------------------------------------------------------------------------------------------------------------
Forms (1099, 1098, 5498, etc.) Item Quote
-------------------------------------------------------------------------------------------------------------------
E. COLD Storage System
-------------------------------------------------------------------------------------------------------------------
OMSE Software (10 Concurrent Users) License $7,000 N/C
-------------------------------------------------------------------------------------------------------------------
OMSE Processing Month $470
-------------------------------------------------------------------------------------------------------------------
OMSE Software Additional License (10 License $3,000 $75
Users)
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
F. Other Services
-------------------------------------------------------------------------------------------------------------------
Auditor Report (SAS70) Report $800
-------------------------------------------------------------------------------------------------------------------
Hardware Maintenance Quote
-------------------------------------------------------------------------------------------------------------------
Programming Changes Quote
-------------------------------------------------------------------------------------------------------------------
Special Training Quote
------------------------------------------------------------------------------------------------------------------
Special Reports Quote
-------------------------------------------------------------------------------------------------------------------
Year-End Processing Forms (Not GR Form) Quote
-------------------------------------------------------------------------------------------------------------------
PC Based Products Quote
-------------------------------------------------------------------------------------------------------------------
On-line Check Ordering Quote
-------------------------------------------------------------------------------------------------------------------
G. Graphical User Interface (GUI)
-------------------------------------------------------------------------------------------------------------------
ABS GUI Seats 1-18 N/C N/C N/C
-------------------------------------------------------------------------------------------------------------------
ABS GUI Seats > 18 $100 N/C N/C
-------------------------------------------------------------------------------------------------------------------
H. Browser User Interface (Browser)
-------------------------------------------------------------------------------------------------------------------
ABS Browser Seat $100 N/C N/C
-------------------------------------------------------------------------------------------------------------------
I. ABS Deposit Platform
--------------------------------------------------------------------------------------------------------------------
License Workstation N/C
--------------------------------------------------------------------------------------------------------------------
Maintenance Deposit Account N/C
--------------------------------------------------------------------------------------------------------------------
Training Additional Day Quote
--------------------------------------------------------------------------------------------------------------------
21
-------------------------------------------------------------------------------------------------------------------
Unit of One-time Monthly Annual
Service Description Measure Fee Fee Fee
-------------------------------------------------------------------------------------------------------------------
J. ABS Loan Platform
-------------------------------------------------------------------------------------------------------------------
License Workstation N/C
-------------------------------------------------------------------------------------------------------------------
Maintenance Loan Account N/C
-------------------------------------------------------------------------------------------------------------------
Training Additional Day Quote
-------------------------------------------------------------------------------------------------------------------
K. ABS Teller Platform
-------------------------------------------------------------------------------------------------------------------
License Workstation N/C
-------------------------------------------------------------------------------------------------------------------
Maintenance Deposit Account N/C
-------------------------------------------------------------------------------------------------------------------
Training Additional Day Quote
-------------------------------------------------------------------------------------------------------------------
L. ABS Interface
-------------------------------------------------------------------------------------------------------------------
Asset/Liability Forecasting
-------------------------------------------------------------------------------------------------------------------
Aurum Supplied interface N/A
-------------------------------------------------------------------------------------------------------------------
3rd Party Supplied Interface Quote
-------------------------------------------------------------------------------------------------------------------
ATM - On-line
-------------------------------------------------------------------------------------------------------------------
Aurum Supplied interface $3,500 $60
-------------------------------------------------------------------------------------------------------------------
3rd Party Supplied interface $8,000 $1,600
-------------------------------------------------------------------------------------------------------------------
ATM - Batch
-------------------------------------------------------------------------------------------------------------------
Aurum Supplied Interface N/C N/C
-------------------------------------------------------------------------------------------------------------------
3rd Party Supplied $5,000 $1,000
-------------------------------------------------------------------------------------------------------------------
Aurum Supplied Test $450 $90
-------------------------------------------------------------------------------------------------------------------
3rd Party Supplied Test $450 $90
-------------------------------------------------------------------------------------------------------------------
Call Report Download
-------------------------------------------------------------------------------------------------------------------
Aurum Supplied Interface $1,400 $25
-------------------------------------------------------------------------------------------------------------------
3rd Party Supplied Interface $2,500 $450
-------------------------------------------------------------------------------------------------------------------
Check image 3rd Party
-------------------------------------------------------------------------------------------------------------------
Aurum Supplied Interface N/C N/C
-------------------------------------------------------------------------------------------------------------------
Party Supplied Interface $10,000 $2,000
-------------------------------------------------------------------------------------------------------------------
Child Support
-------------------------------------------------------------------------------------------------------------------
Aurum Supplied Interface N/C
-------------------------------------------------------------------------------------------------------------------
3rd Party Supplied Interface
-------------------------------------------------------------------------------------------------------------------
Deposit Platform
-------------------------------------------------------------------------------------------------------------------
Aurum Platform Interface N/C N/C
-------------------------------------------------------------------------------------------------------------------
3rd Party Supplied Interface $4,500 $900
-------------------------------------------------------------------------------------------------------------------
Loan Platform
-------------------------------------------------------------------------------------------------------------------
Aurum Supplied Interface N/C N/C
-------------------------------------------------------------------------------------------------------------------
3rd Party Supplied Interface $5,500 $92
-------------------------------------------------------------------------------------------------------------------
On-line Teller Interface
-------------------------------------------------------------------------------------------------------------------
Aurum Supplied Interface N/C N/C
-------------------------------------------------------------------------------------------------------------------
3rd Party Supplied Seat $500 $100
-------------------------------------------------------------------------------------------------------------------
Voice Response Unit - On-line
-------------------------------------------------------------------------------------------------------------------
Aurum Supplied Interface $6,000 $500
-------------------------------------------------------------------------------------------------------------------
Calls Per transaction $0.07
-------------------------------------------------------------------------------------------------------------------
Time per Call Per minute $0.07
-------------------------------------------------------------------------------------------------------------------
22
Exhibit C
Conversion Services
--------------------------------------------------------------------------------------------------------------------
Service Description Unit of One-time Monthly Other Fee
Measure Fee Fee
--------------------------------------------------------------------------------------------------------------------
A. Conversion Service
--------------------------------------------------------------------------------------------------------------------
Core Data Conversion Account $1.00
--------------------------------------------------------------------------------------------------------------------
Application Training @ Aurum Center Conversion $4,000
--------------------------------------------------------------------------------------------------------------------
Implementation Services Conversion $5,000
--------------------------------------------------------------------------------------------------------------------
Out of pocket travel expenses Actual As incurred
--------------------------------------------------------------------------------------------------------------------
Out of pocket Customer conference call expense Actual As incurred
--------------------------------------------------------------------------------------------------------------------
Note: Excludes Customer ancillary systems such as COLD, Excel, or other
server-based systems.
23
Exhibit D
Customer Systems
Customer will provide, at Customer's expense, the Customer Systems. Customer
will be responsible for any license or maintenance fees related to providing the
Customer Systems for use by AURUM in connection with the Services. Customer
will, at Customer's expense, ensure that the Customer Systems are at all times
compatible with the AURUM Systems and AURUM will have no liability hereunder for
any delay or failure to perform Services which arises as a result of the failure
of Customer to maintain any Customer System so that it is compatible with the
AURUM Systems.
For all Customer Systems PC Software.
(a) Notwithstanding II.(c) of this schedule, Customer will, at Customers
expense, provide and be responsible for all Equipment required for
Customer to use the AURUM PC Software ("PC Software Equipment").
(b) Without AURUM's prior written consent, Customer will not (i) install
any System other than the AURUM PC Software on the applicable PC
Software Equipment (ii) sell, assign, lease, transfer, or disclose
to any third party the AURUM PC Software, (iii) use the AURUM PC
Software for the commercial benefit of any third party; (iv) copy or
reproduce the AURUM PC Software; or (v) reverse assemble, reverse
compile, or otherwise recreate the AURUM PC Software. Customer may
transfer its use of the AURUM PC Software to a backup or replacement
system to the PC Software Equipment on a temporary or permanent
basis provided Customer gives prior written notice to AURUM and
discontinues use of the AURUM PC Software on the applicable PC
Software Equipment.
List of Customer Systems:
1. Customer owned Desktop Systems and Applications Software
24
AURUM TECHNOLOGY INC.
---------------------
ITEM PROCESSING SCHEDULE
------------------------
INITIAL TERM
Five (5) years
RENEWAL TERM
One (1) year
BEGINNING DATE FOR SERVICES
September 19, 2003 or a mutually agreed upon date not later than
October 5, 2003.
All Item Processing Services shall be performed pursuant to Customer's
reasonable specifications, subject to the capabilities of Aurum's hardware and
software utilized to deliver said Item Processing Services. All times indicated
in this Schedule refer to the time zone in which the Transaction Center is
located.
I. DEFINITIONS
The following definitions apply to the Basic Services described in this schedule
and are provided as a supplement to definitions included in the Agreement:
(a) "Account" shall mean a demand deposit, negotiable order of
withdrawal, other checking type of account, money market deposit
account, or other savings type account offered by Customer to its
end-customer(s).
(b) "Aurum Business Hours" are each Business Day from 07:00 to 18:00
local time.
(c) "Aurum Image Archive" shall mean the electronic storage of the
bitonal front and back item images at an Aurum designated facility.
(d) "Business Day" is each weekday, Monday through Friday, which is not
a holiday of the Federal Reserve Bank for the Federal Reserve
District in which Customer's principle office is located.
(e) "Conversion Services" shall mean a mutually agreeable schedule that
Aurum will provide services and instructions reasonably required for
Customer to convert to and use the Item Processing Services.
(f) "Crippled Statement" shall mean an end-customer statement whose
number of Items to be enclosed is greater than or less than the
enclosure count for that statement or as the result of missing
Images.
(g) "Customers Data Processing Services Provider" is the customer itself
or vendor appointed by Customer to perform Customer's core data
processing services.
(h) "Effective Date" is the date that this Agreement is executed by
Aurum.
(i) "Exception Item" shall mean an Item, the automated processing of
which is interrupted because of a condition defined by Customer,
such definitions which may be changed from time to time.
(j) "Exception Item File" shall mean the file of Exception Items that
Customer's Data Processing Services Provider or Customer's end
customer creates and transmits to Aurum.
(k) "Home Banking Archive Interface Product" is the Aurum home banking
archive interface described in this schedule.
25
(I) "Implementation Date" shall mean the date the service begins for the
Home Banking Archive Interface Product in a production environment.
(m) "Inclearing Item" shall mean a Customer Item that Aurum receives
from the Federal Reserve Bank or other financial institution with an
incoming cash letter for the purpose of performing Item Processing
Services.
(n) "Initial Term" is defined at the beginning of this Schedule.
(o) "Item Image" is a digitized black and white image of the front and
back of each item.
(p) "Item" is a document or other segment of media on which is recorded
information evidencing a withdrawal from or draft against (i) a
demand deposit, negotiable order of withdrawal, or other checking
account offered by Customer to its customers, or (ii) an internal
Customer general ledger account, deposit ticket, loan coupon or cash
ticket.
(q) "Item Posting File" shall mean a file that Aurum creates from
captured Items for transmission to Customer's Data Processing
Services Provider.
(r) "Item Processing Services" are the Services Aurum will provide to
Customer, and Customer will purchase from Aurum, for their total
requirements for Item Processing Services and are also referred to
herein as "Basic Services".
(s) "MICR" is the magnetic ink character recognition information that is
encoded on Items for processing.
(t) "MICR Rejects" shall mean Items captured during prime pass that are
rejected due to the inability to properly interpret the MICR
encoding. The inability to interpret the MICR encoding may be caused
by a variety of reasons, including but not limited to: (a) or MICR
encoding; (b) missing MICR encoding; (c) physical document damage.
Aurum will electronically repair and may physically repair the MICR
Rejects.
(u) "Monthly Fee" is the monthly amount paid to Aurum based upon charges
defined in Exhibit A.
(v) "On-Us Item" shall mean an Item that is drawn on the Customer or
Customer's end-customer.
(w) "Original Item Retrieval" shall mean occasionally removing Items
from the check vault upon Customer's request.
(x) "Operational Date" shall mean the first day the Customer is
functionally processed with images captured to the archive, transit
work released for delivery, and posting files delivered to
Customer's Data Processing Services Provider.
(y) "Over-the-Counter" shall mean Items submitted by Customer branch
offices, departments, or Customer's end-customers for the purpose of
performing Item Processing Services.
(z) "Pre-encoded Item" shall mean an Item received by Aurum that has
required MICR line fields encoded, which Aurum will capture.
(aa) "Renewal Terms" are defined in the Terms and Renewals section.
(bb) "Return Item" shall mean an Item that Customer instructs Aurum to
return. Customer will provide Aurum with a reason for the return of
Return Items.
26
(cc) "Serial Fine Sort" shall mean the sorting of check Items into
account, amount, and or check number order.
(dd) "Service" or "Services" are all of the services to be provided by
Aurum under this Agreement, which include Image Item Processing and
Conversion Services.
(ee) "Special Programming" shall mean the provision of programming
resources to support Customer's request for new or modified products
or services.
(ff) "Statement Cycle Date" shall mean the ending cycle date printed on
end-customer's Account statement.
(gg) "Statement Rendering" shall mean the insertion of an end-customer
statement and required Items and inserts into an envelope, sealing
the envelope in preparation for mailing to the end-customer. Aurum
may apply postage, which will be recovered by the Customer.
(hh) "System" or "Systems" are (i) computer programs, including without
limitation software, firmware, application programs, operating
systems, files, and utilities; (ii) supporting documentation for
such computer programs, including without limitation input and
output formats, program listings, narrative descriptions, operating
instructions and procedures, user and training documentation,
special forms, and source code; and (iii) the tangible media upon
which such programs are recorded, including without limitation
chips, tapes, disks, diskettes, and any other storage media.
(ii) "Transaction Center" is the space at one or more locations where
Aurum performs Item Processing Services.
(jj) "Transit Item" is an encoded or unencoded Item drawn on another
financial institution that Aurum will capture for the purpose of
creating an outgoing cash letter.
(kk) "Unencoded Item" shall mean a document received by Aurum where the
dollar amount or any other required data field is not encoded.
II. ITEM PROCESSING SERVICES
Aurum shall provide the following Basic Services to Customer:
(a) Back Office Services
--------------------
(i) Image Item Capture - POD/Proof and Transit
------------------------------------------
Aurum will digitize and capture the black and white images of the
front and back of each Pre-encoded Item and each Over-the-Counter
Item and assign a batch and sequence number to each Item.
Outgoing cash letters will be prepared in accordance with Customer's
cash letter requirements, which may change from time to time. As an
Additional Service, Items for cash letter endpoints greater than
twelve (12) will be re-passed and prepared in accordance with
Customer's cash letter requirements, which may change from time to
time.
Aurum will complete the transmission of an Item Posting File
containing all Over-the-Counter Items to Customer's Data Processing
Services Provider by the timeframe documented in Section VII,
Processing Times.
27
(ii) Image Item Capture - Inclearings
--------------------------------
Aurum will receive Customer's Inclearing cash letter from the
Federal Reserve Bank or other financial institution and balance the
Items to the cash letter amount. Aurum will digitize and capture
black and white images of the front and back of each Item and assign
a sequential trace number, which becomes a part of the Inclearing
transaction. Items rejected from the capture will be corrected and
re-entered. When all Inclearing Items are captured and balanced an
Item Posting File containing all Inclearing Items will be created
for transmission to Customer's Data Processing Services Provider.
When required, Aurum will capture and outsort Inclearing Items
creating cash letters for financial institutions who are
end-customers of Customer or end-customers who utilize payable
through draft processing.
Aurum will complete the transmission of an Item Posting File
containing all Inclearing Items to Customer's Data Processing
Services Provider no later than timeframe detailed on Section VII,
Processing Times.
The daily incoming cash letter will be reconciled to the dollar
amount charged by the Federal Reserve Bank or other financial
institution. All cash letter differences, missing items, extra
items, etc., will be reconciled and the proper balancing reports
and/or entries will be prepared.
All errors detected during the incoming cash letter process are to
be adjusted the same Business Day. Aurum will notify Customer of all
same day settlement adjustments prior to 14:30 on the Business Day
of presentment. Aurum will provide Customer with copies of all
adjusting entries that are prepared and the supporting documentation
substantiating the adjustment. This documentation will be packaged
and made available for pickup by Customer or Customer's courier
prior to 18:00 the Business Day of presentment.
(iii) Image Item Capture - Low Speed Repair
-------------------------------------
Aurum will electronically repair and may physically repair the MICR
Rejects.
(iv) Conventional Encoding
---------------------
Aurum will receive unencoded and pre-encoded proof work processed at
Customer's and Customer's end customer locations in accordance with
mutually agreed upon delivery time. Aurum will proof and endorse
each transaction, and encode the dollar amount of each unencoded
Transit Item and full field encode Customer defined on-us Items.
Proof corrections detected by Aurum will be available for pickup by
Customer or Customer's courier by the timeframe documented in
Section VII, Processing Times.
Teller balancing tapes and tapes accompanying deposits will be
included in the daily work sent to Aurum by Customer, and Aurum will
make said balancing tapes and item processing Exception Items such
as debits or credit Items without offsets or Items from unbalanced
transactions remaining at the end of each Business Day's processing
available for pickup by Customer or Customer's courier by the
timeframe documented in Section VII, Processing Times.
All Unencoded Items delivered to Aurum by the required delivery
deadline will be processed to meet Customer's outgoing correspondent
cash letter deadline; provided, however, that Aurum shall have at
least three (3) hours to process unencoded work and three (3) hours
to process pre-encoded work. Aurum will make best reasonable efforts
to handle Customer's work received after the required deadline.
28
(v) Deposit Corrections - Write off
-------------------------------
Any deposit adjustment of $1.00 or less (said dollar amount may
reasonably be adjusted over time, based on Customer requirements)
will be charged to a Customer specified sundry general ledger
account, using a system generated entry. All errors detected during
the Over-the-Counter process are to be adjusted the same day.
Original copies of adjustments will be processed with the proof
transactions; and the offsetting side of the adjustment entry will
be sent to the Customer for processing.
(vi) Deposit Corrections - Documented
--------------------------------
Any deposit adjustment of more than $1.00 (said dollar amount may
reasonably be adjusted over time, based on current industry standard
practices) will be charged to Customer's end-customer or Customer's
designated general ledger account using forms. All errors detected
during the Over-the-Counter process are to be adjusted the same day.
Original copies of adjustments will be processed with the proof
transactions; and the offsetting side of the adjustment entry will
be sent to the Customer for processing.
Aurum will prepare proof corrections to Customer's end-customer on
forms for reasons including but not limited to:
a) Error(s) found in addition or subtraction
b) Check Item was listed for the wrong amount
c) Tape total was listed incorrectly
d) Check Item listed was not enclosed
e) Check item enclosed, not listed
f) Cash not included in deposit total
g) Tape total not listed in deposit
h) Collections not included in deposit
i) Non-Negotiable Item in deposit
j) Items drawn on foreign institutions
Aurum will prepare proof corrections to Customer's designated
general ledger account on forms for reasons including but not
limited to:
a) Cash ticket missing
b) Cash ticket for wrong amount
c) Wrong cash ticket used
d) Currency included in work
e) Cashed check Item missing
f) Cashed check Item enclosed was not listed
g) Cashed check Item for wrong amount
h) Other miscellaneous correction
i) Items drawn on foreign institutions
(vii) Notice Print
------------
Aurum will receive a notice print file in a mutually accepted format
from Customer's Data Processing Services Provider no later than the
timeframe detailed on Section VII, Processing Times. The notices
will be printed in a mutually accepted format for the Customer and
made available by the timeframe detailed on Section VII, Processing
Times.
29
(viii) Statement Print - Laser
-----------------------
Aurum will receive a statement print text file(s) and a statement
reconciliation file(s) in a format mutually agreed to from
Customer's Data Processing Service Provider according to the
timeline detailed in Section VII, Processing Times. The file will
contain the following segregation categories: (a) Image statements,
(b) with Item enclosures less than fifty (50), (c) with Item
enclosures fifty (50) or greater; (d) zero Item enclosure; and (e)
special request statements. Aurum will print statement text and Item
images for Image statements in simplex or duplex mode, as is
mutually agreed to by Customer and Aurum, in preparation for
statement rendering. The print quality will be consistent with that
required by automated ZIP code sorting equipment and acceptable to
Customer, Aurum and Customer's ZIP code sort vendor.
(ix) Statement Rendering - Manual Zero Enclosures
--------------------------------------------
Aurum will manually render conventional statements that do not
qualify for automated rendering due to excessive physical page count
(greater than nine (9)). Aurum will insert the statement and inserts
into a Customer provided envelope that is acceptable to Customer and
Aurum, seal the envelope, and release the envelope to the ZIP code
sort vendor according to the timeline detailed in Section VII,
Processing Times.
(x) Statement Rendering - Manual Handling with Enclosures
-----------------------------------------------------
Aurum will manually render conventional statements that do not
qualify for automated rendering due to excessive physical page count
(greater than nine (9)) or excessive item count (fifty (50) or
more)) will count all Items and match this count against the number
of enclosures indicated on the statement. If the count matches,
Aurum will insert the statement, Items and any inserts into a
Customer provided envelope that is acceptable to Customer and Aurum,
seal the envelope, and release the envelope to the ZIP code sort
vendor according to the timeline detailed in Section VII, Processing
Times.
Aurum will review fine sort reject Items and where possible resolve
Item count discrepancies prior to categorizing a statement as a
Crippled Statement. If any Item count discrepancy cannot be
resolved, Aurum will follow Customer's written instructions for
statement handling; such instructions to be mutually agreed to in
advance for statement handling. Aurum will process as exceptions any
statements that are not to be mailed to the end-customer via
pre-sort first class mail. These exception statements will be
identified by unique intelligent insertion marks or bar code, which
will be mutually agreed upon by Aurum and Customer. From information
printed on the statement or provided separately by Customer, Aurum
will forward the statement to the appropriate location as
designated.
Aurum will process, as a Manual Handling, all statements that are
deemed crippled and forward to the appropriate location as
designated. These could be made available for pickup by Customer or
Customer's courier according to the timeline detailed in Section
VII, Processing Times, following determination of the Crippled
Statement condition.
(xi) Statement Inserts - Manual
--------------------------
Aurum will manually insert up to three (3) statement inserts into
Customer statements. The statement inserts will be of a size, format
and quality that is acceptable to Aurum. The proposed statement
inserts will be submitted to Aurum at least ten (10) Business Days
in advance of the Statement Cycle Date.
30
(xii) Fine Sort, Serial Sort and Miscellaneous Sort
---------------------------------------------
Aurum will Serial Fine Sort Items for accounts designated by
Customer. Accounts requiring Serial Fine Sort will be maintained in
a separate Statement Cycle on the Customer's core data processing
system or designated as Serial Fine Sort accounts in a manner that
is acceptable to Customer and Aurum
At Statement cycle time, the Items scheduled for return to
Customer's end-customer will be fine sorted into statement order,
which is generally account number within one or more levels of
groups, in preparation for statement rendition. Rejects from the
fine sort process will be manually filed.
On a daily basis, Aurum may fine sort internal Customer documents,
including but not limited to: loan items, general ledger Items and
savings Items into amount or Account number order. Daily fine sorted
Items will be available for pickup by Customer or Customer's courier
by the timeframe documented in Section VII, Processing Times.
(xiii) Cycle Sort/Exception Item Pull
------------------------------
According to the documented timeframe in Section VII, Processing
Times, the transmission of Customer's complete Account Exception
Item File from Customer's Data Processing Services Provider to Aurum
will be completed. Aurum will make Exception Items available for
Customer review and available for pickup by Customer or Customer's
courier by the timeframe documented in Section VII, Processing
Times; provided, however, that Aurum shall have at least four (4)
hours to process the Exception Items file from Customer's Data
Processing Service Provider.
(xiv) Warehousinq
-----------
Aurum will store Items by cycle and date according to Customer's
Statement Cycle definitions in a secure environment.
For Items not returned in Customer's end-customer statements for two
(2) calendar months, Aurum will then return the Items to the
Customer or make the Items available for pickup by the Customer or a
Customer designated agent. Aurum may destroy the Items at Customer
expense.
(xv) FAX Copies
----------
At Customer's request, Aurum will FAX Items from the archive.
(xvi) Photocopies
-----------
At Customer's request, Aurum will create a photocopy of an Item from
the archive and make them available for pick-up.
(xvii) Return Items (Outgoing)
-----------------------
Items designated by the Customer as Return Items will be returned by
Aurum to the Federal Reserve Bank the same Business Day; provided
Customer has met the applicable Aurum Return Item deadline. Items to
be returned by Aurum will be marked in accordance with Federal
Reserve regulations.
After Customer has reviewed its exception item reports and made the
necessary pay/no-pay decisions, Customer's Data Processing Services
Provider will complete transmission of a file in a format mutually
agreed to by the parties containing all Return Item requests with
reason for return by the timeframe in Section VII, Processing Times,
for Items captured the previous Business Day.
31
Aurum will out sort, balance to Customer provided control total and
properly stamp each Item to be returned with the Customer's
designated reason, and prepare the Return Item cash letter to be
picked up by the Customer or Customer's courier for delivery to the
Federal Reserve Bank by 23:59 each Business Day. Such Items to be
returned will be contained in a file transmitted by Customer's Data
Processing Service Provider. One cash letter copy is to be retained
by Aurum and one copy will be forwarded to Customer.
Aurum will qualify each Return Item in accordance with Regulation
"J" specifications; provided that the applicable return Item
deadline has been met by Customer.
(xix) Incoming Return Deposited Items
-------------------------------
Aurum will receive from the Federal Reserve Bank the Customer's
return deposit Items for review and processing. Aurum will create a
debit transaction for the account; Incoming deposited return items
will be packaged and made available for pick up by Customer's
courier.
(xx) EARNS
-----
Aurum will, as designated by the Customer, begin to notify the
financial institution of first deposit of all dishonored checks for
$2,500.00 or more, or other amount to remain in compliance with
Regulation CC and J and any other applicable federal laws and
regulations. By 23:59 of each Business Day, Aurum will have
completed transmission of large item notifications for those items
requiring them that were presented the previous Business Day. By
08:00 of the Business Day following dispatch of the return item cash
letter and transmission of the large item notification, Aurum will
make a report of all large item notices processed on the previous
Business Day available for pickup by Customer or Customer's courier.
Aurum requires a 10-business day written notification to commence
this service. Customer must notify EARNS and establish a contract
for this service. A fee from EARNS will be directly billed to the
Customer.
(xxi) Item Retrieval
--------------
At Customer's request, Aurum will manually retrieve an Item.
(xxii) Research
--------
Aurum will provide Customer with assistance to resolve
out-of-balance conditions in particular, inbound or outbound check
processing operations.
(b) Archive Services
(i) CD Statement Software License
-----------------------------
Customer can purchase from Aurum, software that will enable their
customers to retrieve their Item Images from a CD-ROM or DVD-ROM.
The software can be licensed for the Customer's customers as
described in Section VI, Service Charges.
(ii) End-Customer CD-ROM Statement
-----------------------------
For end-customers who receive an image statement, Aurum will
retrieve check images from the Aurum-controlled online archive;
merging those check images with the corresponding periodic statement
text; and write that data to a CD-ROM for delivery to and use by the
end-customer.
32
(iii) On-Line Archive License
-----------------------
Aurum will grant a license to Customer to use the applicable
computer software to retrieve Item Images by utilizing Customer's
equipment and telecommunications circuitry to access the item Image
archive located at the Aurum Transaction Center. Aurum will license
access to Item Images by concurrent sessions installed on Customer
workstations at a price detailed in Section VI, Service Charges.
Additionally, there is a one-time charge for software installation
that does not include telecommunications network design,
telecommunications line installation and testing, data
communications equipment at Customer and Aurum Transaction Center
location, or travel-related expenses.
(iv) On-Line Image Archive Access
----------------------------
Aurum agrees to provide Customer with on-line access to Item Images
for ninety (90) days after the Item Images have been created. At the
end of the ninety (90) day period, Aurum will create two (2) CD's or
DVD's, one of which shall be delivered by Aurum to Customer, the
other of which may be used in a jukebox for near-line storage. Aurum
shall have no further storage or archive obligations with respect to
Customer's Item Images, including the back-up of CD's/DVD's in the
jukebox. Customer acknowledges that the CD's/DVD's delivered by
Aurum to Customer are Customer's source of archived data for
regulatory compliance and future conversion purposes and should be
retained by Customer for these and all other purposes. In the event
Customer requests Aurum to provide CD's/DVD's of Item Images
previously provided to Customer on CD/DVD, Aurum will provide such
Item Images to Customer, if available to Aurum, and Customer agrees
to pay Aurum for such services at Aurum's then in effect hourly
rate.
(v) Near-Line Archive License
-------------------------
Aurum will grant a license to Customer to use the applicable
computer software to retrieve Item Images by utilizing Customer's
equipment and telecommunications circuitry to access the Item Image
archive located at the Aurum Transaction Center. Aurum will license
access to Item Images by concurrent sessions installed on Customer
workstations at a price detailed in Section VI, Service Charges.
Additionally, there is a one-time charge for software installation
that does not include telecommunications network design,
telecommunications line installation and testing, data
communications equipment at Customer and Aurum Transaction Center
location, or travel-related expenses.
(vi) Near-Line Archive Access and Storage
------------------------------------
Aurum shall assume responsibility for maintaining customer access to
Item Images for a period not to exceed seven (7) years, so long as
Item Images are maintained on equipment controlled by Aurum. Fees
are based upon tiers according to the Customer's monthly prime pass
volume and documented in Section VI, Service Charges. In addition to
the monthly fee, there is a one-time charge for installation. The
one-time fee for installation is payable in full on the Effective
Date.
(c) Other Services
--------------
(i) Item Posting File Transmission Contingency
------------------------------------------
In the event that Aurum is unable to successfully transmit any Item
Posting File to Customer, Aurum will burn a CD-ROM or DVD containing
the data and make it available for pickup by Customer or Customer's
courier, or, arrange for courier delivery to Customer's Data
Processing Services Provider.
33
(ii) Image Processing System Reports
-------------------------------
Aurum will provide standard reports - All Items Listing, Cash Letter
Detail, Cash Letter Summary, Change Log, and the Item Balancing
Sheet - in a mutually acceptable format each Business Day and make
the file available for pickup by Customer using a TCP/IP transfer
utility or physically available by the timeframe documented in
Section VII, Processing Times.
(d) Miscellaneous
(i) Programming Support
-------------------
Aurum will provide Special Programming at Customer's request for new
or modified products or services at the current programming hourly
rate.
(ii) On-site Consulting
------------------
Aurum will provide item processing consulting services at Customer's
request for new or modified products or services at the current
hourly rate.
(iii) Courier Services
----------------
Customer will be responsible for the selection, expense and overall
management of the couriers that are used for the transportation of
all Items, records, and other data between Customer offices and the
Transaction Center, the Inclearing Items from the Federal Reserve
Bank to the Transaction Center, and for the transportation of
Transit Items to the Federal Reserve Bank or other upstream
correspondent banks. The parties agree that such courier service may
be either an existing courier service shared by other Aurum
customers or, if Customer in its sole discretion determines that it
is not feasible or desirable to utilize such existing courier
service, such other courier service as is designated by Customer.
III. HOME BANKING ARCHIVE INTERFACE
(a) Statement of Services
---------------------
This Home Banking Archive Interface Product is designed and usage is
intended to enable the access, retrieval, and transfer of a single
item image from the Aurum Image Archive to the Customer's home
banking application utilized by account holders of Customer for
presentation of a single item image per each account holder's
request. Use of the Home Banking Archive Interface Product for all
other purposes is expressly prohibited without the written approval
of Aurum. This Schedule authorizes use of the Home Banking Archive
Interface Product to interface with the following home banking
application (check one box only):
|X| Aurum eBanking
|_| Digital Insight
|_| Fundtech
|_| Q-Up
|_| PremiercCom or PremiereCorp
|_| S1
Aurum or its designees will perform all modifications or
customizations to the Home Banking Archive Interface Product
requested by Customer under an approved written professional
services agreement between the parties.
34
(b) Payment for Services
--------------------
In consideration for the provision set forth above, Customer will
pay Aurum the amounts set forth in Exhibit A attached hereto after
the Implementation Date of the Home Banking Archive Interface
Product. Monthly fees are for management and operation of the Home
Banking Archive Interface Product as defined and exclude all other
charges, specifically necessary telecommunication connectivity
requirements.
(c) Customer Responsibilities
-------------------------
Customer will (i) provide all telecommunications components
necessary for connectivity between the Home Banking Archive
Interface Product and Customer's home banking application; (ii)
provide Aurum specifications necessary for the implementation and
testing of the Home Banking Archive Interface Product; (iii) grant
Aurum access to data generated by the Home Banking Archive Interface
Product for support purposes; (iv) contract with AURUM for Aurum
Image Archive services; and (v) perform all commercially reasonable
user authentication, data encryption, "firewall protection", and
security management related to connecting and using the Home Banking
Archive Interface Product and accessing the Aurum Image Archive that
is accordance with: (a) generally accepted industry standards, (b)
industry regulatory requirements, and (c) Aurum published network
connectivity standards.
(d) Performance Standards
---------------------
The Home Banking Archive Interface Product will be available seven
days per week except for time periods designated by Aurum to perform
system maintenance, repair, and component upgrades or replacement.
Images captured by Aurum will be available to the Home Banking
Archive Interface Product by 08:00 a.m. local time the following
Business Day. Images will remain available to the Home Banking
Archive Interface Product for a period less than ninety (90) days.
Aurum's failure to achieve this performance standard will not be
conclusive evidence of a material breach by Aurum of this agreement.
Customer may, however, if the facts and circumstances of such
failure so warrant, declare a material breach of this agreement.
(e) Home Banking Archive Interface Product Warranty
-----------------------------------------------
CUSTOMER'S SOLE WARRANTY WITH RESPECT TO COMPUTER HARDWARE AND
SOFTWARE SUPPLIED BY THIRD PARTIES AND USED BY AURUM IN PROVIDING
THE SERVICE UNDER THIS SCHEDULE, IS THE WARRANTY PROVIDED BY SUCH
THIRD PARTY AS IT MAY BE AVAILABLE TO CUSTOMER. AURUM HEREBY
DISCLAIMES ANY REPRESENTATION OR WARRANTY WHATSOEVER ABOUT THE
PERFORMANCE OR LEGAL OR REGULATORY COMPLIANCE, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF
ANY COMPUTER HARDWARE AND SOFTWARE SUPPLIED BY THIRD PARTIES.
Customer acknowledges that Aurum has no duty or responsibility to
modify any such third-party product, except to the extent that the
vendor thereof has such a duty or responsibility to modify such
product pursuant to the applicable license agreement between Aurum
and such vendor.
IV. CONVERSION SERVICES
Aurum shall provide Conversion Services required to implement the Services
detailed above. Customer and Aurum will develop a mutually agreeable
business design and implementation plan detailing responsibilities,
accountabilities, tasks and timelines. The implementation timeline will
commence at contract execution and culminate with the implementation of
contracted Services at the conclusion of a four
35
(4) to six (6) month period. Aurum and Customer agree to provide each
other with reasonable access to personnel required to develop and
implement the image Services solution as defined in the implementation
project plan.
Customer and Aurum will mutually agree upon the Conversion Date. Customer
and Aurum will mutually agree to any modifications to the implementation
plan or date.
V. CUSTOMER RESPONSIBILITIES
Customer will do the following:
1. Deliver to Aurum all Items, in a condition and form consistent
with the generally accepted requirements of a high-speed item
processing operation. Customer assumes full responsibility for
the accuracy, completeness, and authenticity of all Items
furnished to Aurum, and Aurum shall thus be entitled to rely
thereon and will have no obligation or responsibility to
audit, check, or verify the Items. Without limiting the
generality of the foregoing, Customer shall have sole
responsibility for (a) verifying dates, signatures, amounts,
authorizations, endorsements, payment notices, collection
times, fees and charges imposed by Customer on its customers
and other similar matters on all Items delivered to Aurum; (b)
placing stop payments and holds on accounts; and (c)
determining the correctness of all magnetic ink inscribed or
appearing on Items, regardless of by whom or when inscribed.
If any Items submitted to Aurum are incorrect, or in a
condition inconsistent with the generally accepted
requirements of a high speed item processing operation, Aurum
may, in its sole discretion, either (i) require Customer to
resubmit completed and corrected Items, or (ii) correct and
complete the Items itself and Customer will pay Aurum the
charges for any Additional Services provided by Aurum to
correct or complete such Items or otherwise prepare such Items
for processing.
2. Provide Inclearing, Unencoded and Preencoded Items to Aurum
each Business Day according to the schedule contained in
Section VII, Processing Times.
3. Provide to Aurum by mutually agreeable means, current
information reasonably required by Aurum concerning the
accounts offered by Customer to its end-customers and internal
Customer general ledger accounts.
4. Ensure that all Items and other documents or media which Aurum
may be required to process under this Agreement are in a
format acceptable to Aurum and contain, in machine readable
form, the data and information required by Aurum.
5. Ensure appropriate personnel of Customer are properly trained
to utilize the Item Processing Services.
6. In a manner prescribed by Aurum, Customer will balance
non-business account statement cycles for monthly periodic
statements so that approximately the same number of statements
are to be prepared on each of the no more than twenty (20)
Business Days during the month. The Monthly Statement print
files will be transmitted, in a format acceptable to Aurum,
including intelligent insertion marks or bar coding indicating
the number of Items to be enclosed with each statement.
7. Cooperate with Aurum in the performance of Item Processing
Services and provide to Aurum such data and information,
management decisions, regulatory interpretations and policy
guidelines as Aurum reasonably requires.
36
8. Provide Aurum with contact list and escalation procedures to
insure that production problems and other issues requiring
Customer attention are addressed on a timely basis by the
appropriate individual(s).
9. Be responsible for the transportation of all Items, records,
and other data between Customer offices and the Transaction
Center and the related costs.
10. Appoint Aurum as its agent for purposes of receiving Items
from and returning Items to clearing organizations. Customer
will notify all appropriate third parties of such appointment
and pay or reimburse Aurum for any charges payable to such
clearing organizations for, or required as a condition to, so
receiving or returning Items.
11. Forward directly to Aurum any On-Us items or other Items that
are posted by or on behalf of Customer without being entered
into the clearing process.
12. Networking and communication devices provided by Customer must
be approved by Aurum to insure compatibility with the Aurum
System.
13. Provide adequate space for the installation of telephone
drop(s) necessary to connect Customer's terminals with the
telephone lines that communicate with the Aurum Systems. Aurum
agrees to schedule with the telephone company the technical
aspects of said installation of the data communications
telephone lines. Charges made by the telephone company for the
initial installation and ongoing costs of the data
communications telephone lines along with any additional drops
or changes to the drop locations in the future will be the
responsibility of the Customer.
IV. SERVICE CHARGES
(a) Basic Services
--------------
The monthly service fee for Basic Services is based on the volume of
the described services multiplied by the unit cost/charge for that
service.
(i) Item Processing Services Unit Cost
Image Item Capture - POD/Proof and Transit 0.0220 Per item
Image Item Capture - Inclearing 0.0220 Per Item
Image Item Capture - Low Speed Repair 0.1470 Per Item
Conventional Encoding - POD 0.0290 Per Field
Deposit Corrections (write off) 0.5280 Per Item
Deposit Corrections (documented) 2.8420 Per Item
Notice Print 0.0820 Per Notice
Statement Print (Laser) 0.0460 Per Impression
Notice and Statement Rendering - Manual
Without Items 0.3170 Per Statement
Statement Rendering - Manual With Items 0.5280 Per Statement
Statement Inserts - Manual 0.0250 Per Insert
Fine Sort, Serial Sort and Miscellaneous Sort 0.0120 Per Item
Cycle Sort/Exception Item Pull 0.0050 Per Item
Warehousing 0.0020 Per Item
Fax Copies 1.6240 Per Item
Photocopies 1.0960 Per Item
Outbound Returns 1.6240 Per Item
Incoming Returns 0.6090 Per Item
Large Item Notification (EARNS) 2.4360 Per Item
Manual Item Retrieval 3.2480 Per Item
Adjustment Research 17.8600 Per Hour
37
Client Archive CD-ROM 16.5000 Per Media
Client Archive DVD-ROM 81.0000 Per Media
End-Customer CD-ROM Statement 10.50 Per Media
On-Line Image Archive Access 0.0040 Per Prime Pass Item
Near-Line Access (7 year storage) Tiers Per Month
0 -- 50,000 prime pass items per month 350.00
0 - 150,000 prime pass items per month 600.00
Aurum Monthly Discount tier:
$5,000 increments to the average base service
charge ($5,242) in any processing month (750.00) Per Month
(ii) Other Expense
Description Charge
----------- ------
Telecommunication Charges Customer Expense
EARNS Fees Customer shall pay EARNS
Invoices. Aurum shall not
have any responsibility
for EARNS charges for
Customer.
Postage Customer Expense
Zip Sorting Customer Expense; Direct ▇▇▇▇ by Zip Sort
Vendor
Federal Reserve Courier Customer Managed; Customer Direct
Expense
Other Courier Customer Managed; Customer Direct
Expense
Mailing Supplies Customer Expense
Forms and Paper Customer Expense and
Customer Provided,
including but not limited
to statement form,
envelopes, general ledger
tickets, custom control
tickets
Document destruction Customer Expense
Technical Support Current Rate
(iii) Minimum Monthly Charge. If the aggregate charges for Item
Processing Services are less than $4,455.00 per calendar
month, Customer will be billed the minimum contract amount
of $4,455.00.
(b) One-time License Fees
---------------------
Customer will be levied the following one-time charges for requested
licenses:
CD Statement Software License 1 - 24 copies $225 each
(Price Based on the number of 25 - 49 copies $200 each
bundled copies purchased at any 50 - 99 copies $150 each
one time) 100+ copies $125 each Per License
On-Line Archive License Per Concurrent Session;
first two (2) licenses at no
1,350.00 charge
Near-Line Archive License Per Bank; WAIVED for
6,500.00 the initial time
(c) Conversion
----------
38
Customer will be levied a one-time charge of $20,000.00 for the
conversion of Item Image processing. The one-time charge does not
include supplies, forms, telecommunications network design,
telecommunications line installation and testing, data
communications equipment at Customer and Aurum Transaction Center
locations, or travel-related expenses. The one time fee is payable
on the Effective Date. Aurum will quote charges for additional or
future conversions separately.
Item Image Processing Conversion $20,000.00 WAIVED
VII. PROCESSING TIMES
(a) Customer Delivery Requirements
------------------------------
--------------------------------------------------------------------
Over-the-counter Items Business Day --- Monday through
Friday
50% by 16:00
100% by 18:00
--------------------------------------------------------------------
Inclearing Items Business Day - Monday through
Friday
RCPC by 09:30
City by 13:30
--------------------------------------------------------------------
(b) File Transmission Requirements
------------------------------
--------------------------------------------------------------------
Over-the-Counter Transmission by Business Day - Monday through
Aurum Friday
24:00
--------------------------------------------------------------------
Inclearing Transmission by Business Day - Monday through
Aurum Friday
18:00
--------------------------------------------------------------------
Notice Print Text File Business Day - Monday through
Transmission by Customer Friday
by Customer 04:00
--------------------------------------------------------------------
Statement Print Text File First Business Day following
Transmission(s) Completed by Statement Cycle Date
Customer 04:00
--------------------------------------------------------------------
Statement Reconciliation File First Business Day following
Transmission(s) Completed by Statement Cycle Date
Customer - Image Statement Only 06:00
--------------------------------------------------------------------
Exception Item File Transmission Next Calendar Day
Completed by Customer 02:30
--------------------------------------------------------------------
Return Item File Transmission by Business Day - Monday through
Customer Friday
14:30
--------------------------------------------------------------------
(c) Image Archive Available by Aurum
--------------------------------
--------------------------------------------------------------------
Image Archive Available by Next Calendar Day
Aurum
--------------------------------------------------------------------
(d) Exception Items or Cripple Statements Available for Pickup by
-------------------------------------------------------------
Customer
--------
--------------------------------------------------------------------
Exception Items Available for Next Business Day Monday through
Pickup by Customer Friday
07:30
--------------------------------------------------------------------
39
(e) Notice Print Available for Pickup by Customer
---------------------------------------------
--------------------------------------------------------------------
Check and Notice Print Next Business Day Monday through
Available for Pickup by Friday
Customer 07:30
--------------------------------------------------------------------
(f) Zip Code Sort Vendor Release Time
---------------------------------
--------------------------------------------------------------------
Zip code Sort Vendor Release Monday through Friday End of Day
Time
--------------------------------------------------------------------
VIII. SERVICE LEVEL STANDARDS
Beginning on the first day of the calendar month immediately following the
expiration of one hundred and twenty (120) days after the Operational
Date, Aurum shall perform Services in such a manner so as to meet or
exceed the following performance standards. Compliance with the
Performance Standards will be determined on a monthly basis. Customer will
report incidents of non-compliance to Aurum and Aurum will keep accurate
records relating to such compliance. A failure by Aurum to meet a
Performance Standard shall be deemed to be an "Occurrence". When
reasonably possible, Customer must report incidents suspected to be
Performance Standard Occurrences to Aurum within seventy-two (72) hours,
or immediately upon becoming aware of the incident after the seventy-two
(72) hour deadline.
(a) Performance Standards
---------------------
1. Inclearing Capture and Posting File Transmission
--------------------------------------------------------------------------------------------------
Service See Section II, Item Processing Services
Description
--------------------------------------------------------------------------------------------------
Prerequisites Inclearing Items are presented in the industry standard format of:
- not greater than 250-300 items per batch and
- listing for each bundle and
- Item order matching listing and
- one cash letter summary listing per sending endpoint.
Inclearings Items are delivered to Aurum according to the
schedule shown in Section VII, Processing Times.
The MICR reject rate will not exceed 1%.
--------------------------------------------------------------------------------------------------
Performance Aurum will initiate the transmission of the Inclearing Item
Standard Posting File to Customer's Data Processing Services Provider
according to Section VII, Processing Times, eighty-nine percent
(89%) of each month's Business Days on a rolling three (3) month
average. Failure to initiate the Inclearings Item Posting File
transmission by the applicable deadline is not considered to be a
Performance Standard Occurrence unless Customer's Data Processing
Services Provider is unable to post the Inclearing Item Posting
File in a timely manner.
--------------------------------------------------------------------------------------------------
Measurement Aurum daily transmission report.
Monthly Inclearing Item volume.
Late transmissions reported by Customer to Aurum for review,
validation and tracking.
--------------------------------------------------------------------------------------------------
40
2. Over-the-Counter Item Processing and Posting File
Transmission.
--------------------------------------------------------------------------------------------------
Service See Section II, Item Processing Services
Description
--------------------------------------------------------------------------------------------------
Prerequisites Proofs of Deposit Items are presented in a clean and
orderly fashion.
Pre-encoded Items are presented in the industry standard
format of:
-not greater than 250-300 items per batch and
-listing for each bundle and Item order matching listing
All items oriented in the same direction Single in separate
bundles
Proof of Deposit and Pre-encoded Items are delivered to
Aurum according to the schedule shown in Section VII,
Processing Times.
The Pre-encoded Items MICR reject rate will not exceed 1%.
--------------------------------------------------------------------------------------------------
Performance Aurum will initiate the transmission of the Over the Counter Item
Standard Posting File to Customer's Data Processing Services Provider
according to Section VII, Processing Times, eighty-nine percent
(89%) of each month's Business Days on a rolling three (3) month
average. Failure to initiate the Over the Counter Item Posting
File transmission by the applicable deadline is not considered to
be a Performance Standard Occurrence unless Customer's Data
Processing Services Provider is unable to post the Over the
Counter Item Posting File in a timely manner.
--------------------------------------------------------------------------------------------------
Measurement Aurum daily transmission report. Late transmissions
reported by Customer to Aurum for review, validation and
tracking.
--------------------------------------------------------------------------------------------------
3. Statement Rendering
--------------------------------------------------------------------------------------------------
Service See Section II, Item Processing Services
Description
--------------------------------------------------------------------------------------------------
Prerequisites Delivery of printed statements, image match file and
statement fine sort file according to the schedule
contained in Section VII, Processing Times.
Marketing inserts are available ten (10) Business Days
prior to insertion; must be of a size, format and quality
acceptable to Aurum.
--------------------------------------------------------------------------------------------------
Performance 95% of non-Crippled Statements that can be machine-rendered will
Standard be rendered and bear a postmark date not exceeding three
(3) Business Days after the Business Day upon which Aurum
receives the printed statements from Customer for non-month
end statements and four (4) Business Days for month-end
statements eighty-nine percent (89%) of each month's
Business Days on a rolling three (3) month average.
--------------------------------------------------------------------------------------------------
Measurement Monthly statement volume.
--------------------------------------------------------------------------------------------------
Monthly report of statement activity maintained by Aurum.
--------------------------------------------------------------------------------------------------
41
4. Outgoing Return Item Processing and Large Item Notification
--------------------------------------------------------------------------------------------------
Service See Section II, Item Processing Services
Description
--------------------------------------------------------------------------------------------------
Prerequisites Complete Return Item data file transmission from Customers'
Data Processing Services Provider has been received by the
time specified in Section VII, Processing Times.
--------------------------------------------------------------------------------------------------
Performance 1. On-time release of Return Item cash letter within time frames
Standard required by applicable law ninety-five percent (95%) of each
month's Business Days on a rolling three (3) month average.
2. On-time electronic notification of dishonored Items of
$2,500.00 or more within time frames required by law
ninety-five percent (95%) of each month's Business Days on
a rolling three (3) month average.
--------------------------------------------------------------------------------------------------
Measurement Aurum daily transmission log.
Monthly Return Item volume.
Monthly large item notification volume.
Customer maintained log of late Return Items volume.
Customer maintained log of late large item notifications
volume.
Late Return Items reported to Aurum for review, validation
and tracking.
Late large Item notifications reported to Aurum for review,
validation and tracking.
--------------------------------------------------------------------------------------------------
5. Image Item Storage and Archive
--------------------------------------------------------------------------------------------------
Service See Section II, Item Processing Services
Description
--------------------------------------------------------------------------------------------------
Prerequisites The Inclearing Items MICR reject rate will not exceed 1%.
The Pre-encoded Items MICR reject rate will not exceed 1%.
Proof of Deposit Items are presented in a clean and orderly
fashion.
Pre-encoded Items are presented in the industry standard
format of:
- not greater than 250-300 items per batch and
- listing for each bundle and Item order matching listing
All items oriented in the same direction
Inclearings, Proof of Deposit and Pre-encoded Items are
delivered to Aurum according to the schedule shown in
Section VII, Processing Times.
--------------------------------------------------------------------------------------------------
42
--------------------------------------------------------------------------------------------------
Performance Availability each Business Day by the time specified in Section
Standard VII, Processing Times of archived image Items eighty-nine
percent (89%) of each month's Business Days on a rolling
three (3) month average.
--------------------------------------------------------------------------------------------------
Measurement Aurum daily on-line reports.
Customer reported instances where archived image Item access was
late
--------------------------------------------------------------------------------------------------
(b) Certain Exceptions
Notwithstanding anything contrary in this Agreement or the Sections,
Aurum will not be responsible for, and may exclude from the
calculation of compliance with the Performance Standard, any failure
to meet a Performance Standard if, during, and to the extent that
such failure is related to or caused by (i) any matter constituting
force majeure, (ii) Customer's failure to perform its obligations
under this Agreement where such failure was the proximate use of the
failure to meet the Performance Standard, (iii) special production
jobs, testing procedures or other services which are given priority
at the request of the Customer, (iv) any significant increase in
processing volumes or business resulting from the acquisition,
directly or indirectly, of assets or stock of a financial
institution by Customer, whether by merger or otherwise, (in each
case during a reasonable transition period to be agreed upon by
Aurum and Customer in good faith), (v) significant unforeseen
increases in processing volumes or business or any significant
change in the nature or scope of Services provided under this
Agreement (in each case during a reasonable transition period to be
agreed upon by Aurum and Customer in good faith), (vi) any
significant change in the manner in which Customer conducts its
business (in each case during a reasonable transition period to be
agreed upon by Aurum and Customer in good faith). Multiple
Occurrences on consecutive Business Days for the same Performance
Standard which result from the same or proximate use will be
considered a single Occurrence. An incident which results in missing
multiple Performance Standards will be considered a single
Performance Standard Occurrence which will be categorized (for
tracking purposes) based on how Customer reports the failure to
Aurum.
(c) Remedy for Occurrences
----------------------
In the event that four (4) Occurrences take place during any six (6)
month period with respect to the same Performance Standard, then,
for a period of thirty (30) days after receipt by Customer of a
report from Aurum reflecting the fourth Occurrence, Customer will
have the right to terminate this Agreement, through delivery of
written notice to Aurum; provided the effective date of such
termination will not be less than ninety (90) days after receipt by
Aurum of such notice.
Customer's right to terminate this Agreement pursuant to the
provisions of this Section will constitute Customer's sole remedy
with respect to any data processing Occurrences.
(d) Review of Performance Standards
-------------------------------
Aurum and Customer acknowledge that changing requirements may from
time to time require modification to Performance Standards.
Accordingly, Aurum and Customer agree to review Performance
Standards from time to time and shall negotiate in good faith to
arrive at mutually agreeable revisions to the Performance Standards.
IX. LIQUIDATED DAMAGES
The parties acknowledge that upon termination of this agreement for any
reason, Aurum will incur damages resulting from such termination that will
be difficult or impossible to ascertain.
43
Prior to such termination, except termination by Customer for a material
default, under "Remedy for Occurrences" under Article V111(c) or for
insolvency, bankruptcy or the like, and in addition to all other amounts
then due to Aurum, Customer will pay to Aurum as reasonable liquidated
damages (and not as a penalty) the sum of (a) all costs reasonably
incurred by Aurum in connection with such termination, including
telecommunication line disengagement expenses and costs of terminating
leases on or shipping or storing any equipment provided to Customer by or
through Aurum under this agreement, a 25% management fee on such costs,
Aurum's charges for any additional services requested by Customer for
de-conversion assistance and Aurum's then standard charges for any test or
de-conversion tapes and (b) the product of (1) the average monthly charge
to Customer for services under this agreement during the 12 calendar
months immediately preceding the calendar month in which notice of
termination was given, (2) the total number of months remaining in either
the term then in effect from the effective date of the termination and (3)
80% for termination on or before the end of the second year following the
Beginning Date for Services, 70% for termination after the end of second
year following the Beginning Date for Services but before the end of the
third year following the Beginning Date for Services, 60% for termination
after the end of the third year following the Beginning Date for Services
but before the end of the fourth year following the Beginning Date for
Services and 50% for termination after the end of the fourth year
following the Beginning Date for Services. If this agreement has been in
effect less than 12 calendar months prior to the giving of the notice of
termination, then the parties will compute the amount due under subsection
(b) above using the average monthly charge for services made during such
lesser number of calendar months. If termination of this agreement occurs
prior to the providing of any services, then the parties will compute the
amount due under subsection (b) above assuming an estimated monthly charge
that Aurum would have reasonably expected.
In the case of termination by Customer under "Remedy for Occurrences"
under Article VIII(c) or for a material default or for insolvency,
bankruptcy or the like, Customer will pay to Aurum only the amounts set
forth in subsection (a) of the preceding paragraph.
Aurum may, at its option, invoice Customer for the greater of (a) Aurum's
good faith estimate of the termination costs or (b) the aggregate of the
charges payable to Aurum for the 2 calendar months preceding the month in
which notice of termination is given. If the actual termination costs are
greater or less than the amount of Aurum's invoice that is paid by
Customer under the immediately preceding sentence, then Customer will pay
Aurum, or Aurum will refund to Customer, as the case may be, the
difference between the actual termination costs and the amount paid.
Aurum will invoice and Customer will pay all amounts payable under this
section prior to the earlier of (a) the effective date of such termination
or (b) the release to Customer of any test tapes or other data or
information of Customer.
44
Home Banking Archive Interface
Exhibit A
Home Banking Archive Interface Product Fees
--------------------------------------------------------------------------------
Service Unit Unit Price
--------------------------------------------------------------------------------
Conversion (One-Time) Fee is based upon the
following schedule as applied against the
Customer's asset volume. Bank
--------------------------------------------------------------------------------
$0 - $100,999,999 $5,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The Monthly Fee is based upon the following
schedule as applied against the Customer's asset
volume.
--------------------------------------------------------------------------------
$0 - $100,999,999 $150.00
--------------------------------------------------------------------------------
$101,000,000 - $300,999,999 $200.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Other terms:
o The Monthly Fee is based on the asset size of the institution on the December
31 call report, and will be reviewed on April 1st of each year
45