COMMERCIAL BANK OF FLORIDA MIAMI, FLORIDA Service Agreement
Fiserv
THE
FINANCIAL DATA SERVICES COMPANY
COMMERCIAL
BANK OF FLORIDA
MIAMI,
FLORIDA
November,
2004
1
Agreement
Number:
AGREEMENT
between
Fiserv
Solutions, Inc.
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and
Commercial
Bank of Florida
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Date:
November 18, 2004
2
AGREEMENT
dated as of November 18, 2004 ("Agreement") between F~Fiserv Solutions, Inc.,
a
Wisconsin corporation ("Fiserv"), and Commercial Bank of Florida, Miami (a
Florida corporation "Client.).
Fiserv
and Client hereby agree as follows:
1.
Term. The initial term of this Agreement shall end 3 years following the
date Fiserv Services (as defined below) are first used by Client and, unless
written notice of non-renewal is provided by either party at least 180 days
prior to expiration of the initial term or any renewal term, this Agreement
shall automatically renew for additional term(s) of 3 years. This Agreement
shall be effective on the day services are first provided" Client by Fiserv
("Effective Date").
2.
Services.
(a)
Services
Generally.
Fiserv,
itself and through its affiliates, agrees to provide Client, and Client agrees
to obtain from Fiserv services ("Services") and products ("Products")
(collectively, "Fiserv Services") described in the attached
Exhibits:
Exhibit
A
-Intentionally Omitted
Exhibit
B
-Item Processing Services
Exhibit
B-1 -Item Processing Description of Services
Exhibit
B-2- Item Processing Services Fees
Exhibit
B-3 -Item Processing Performance Standards
The
Exhibits set forth specific terms and conditions applicable to the Services
and/or Products, and, where applicable, the Fiserv affiliate so performing.
Client may select additional services and products from time to time by
incorporating an appropriate Exhibit to this Agreement.
(b)
Implementation Services. Fiserv will provide services (i) to convert
Client's existing applicable data and/or information to the Fiserv Services;
and/or (ii) to implement the Fiserv Services. These activities are referred
to
as "Implementation Services". Client agrees to cooperate with Fiserv in
connection with Fiserv's provision of Implementation Services and to provide
all
necessary information and assistance to facilitate the conversion and/or
implementation. Client is responsible for an out-of-pocket expenses associated
with Implementation Services. Fiserv will provide Implementation Services as
required in connection with Fiserv Services. In the event Fiserv is unable
or
unwilling to complete the Implementation Services for Item Processing
Services on or before April 10, 2005, and such failure is not due to any
act or omission of Client or any third party, then Client shall be entitled
to
immediately terminate this Agreement as to Item Processing Services upon written
notice to Fiserv without any right to cure. In such event, Fiserv shall promptly
refund all amounts paid by Client to Fiserv for costs and expenses associated
with the Implementation Services for Item Processing Services, and Client
shall not be required to pay any termination fees or liquidated damages pursuant
to Sections 11(d) and (e).
(c)
Training
Services. Fiserv
shall provide training, training aids, user
manuals,
and other documentation for Client's use as Fiserv finds necessary to enable
Client personnel to become familiar with FlServ Services. If requested by
Client, classroom training in the use and operation of Fiserv Services will
be
provided at a training facility designated by Fiserv. All such training aids
and
manuals remain Fiserv's property .
3.
Fees
for Fiserv Services. (a)
General. Client agrees to pay Fiserv:
(i)
estimated
fees for Fiserv Services for the following month as specified in the
Exhibit;
(ii)
out-of-pocket charges for the month payable by Fiserv for the account of Client;
and
(iii)
Taxes (as defined below) thereon (collectively, "Fees").
Fiserv
shall timely reconcile Fees paid by Client for the Fiserv Services for the
month
and the fees and charges actually due Fiserv based on Client's actual use of
Fiserv Services for such month. Fiserv shall either issue a credit to Client
or
provide Client with an invoice for any additional fees or other charges owed.
Fiserv may change the amount of Fees billed to reflect appropriate changes
in
actual use of Fiserv Services. Fees may be increased from time to time as set
forth in the Exhibits. Upon notification to and acceptance by Client, FIServ
may
increase its fees in excess of amounts listed in the Exhibits in the event
that
Fiserv implements major system enhancements to comply with changes in law,
government regulation, or industry practices.
(b)
Additional
Charges. Fees
forout-of-pocket
expenses, such as telephone, microfiche, courier, and other charges incurred
by
FlServ for goods or
services
obtained by Fiserv on Client's behalf shall be billed to Client at cost plus
the
applicable Fiserv administrative fee as
set
forth
in the Exhibits. Such out-of-pocket expenses may be changed from
time
to
time
upon
notification of
a
fee
change from
a
vendor/provider.
The Fees do
not
include,
and Client shall be
responsible
for, furnishing transportation or
transmission
of
information
between Fiserv's service center{s), Client's site{s), and any applicable
clearing house, regulatory agency, or
Federal
Reserve Bank.
(c)
Taxes.
Fiserv
shall add to each invoice any sales, use, excise, value added, and other taxes
and duties however designated that are levied by any taxing
authority
Date:
November 18, 2004
3
relating
to the Fiserv Services ("Taxes").
In
no
event shall "Taxes" include taxes based upon Fiserv's net income.
(d)
Payment
Terms. Fees
are
due and payable monthly upon receipt of invoice. Client shall pay Fiserv through
the Automated Clearing House. In the event any amounts due remain unpaid beyond
the 30th day after payment is due, Client shall pay a late charge of 1.5% per
month. Client agrees that it shall neither make nor assert any right of
deduction or set-off from Fees on invoices submitted by Fiserv for Fiserv
Services.
4.
Access
to Fiserv Services. (a)
Procedures.
Client
agrees to comply with applicable regulatory requirements and procedures for
use
of Services established by Fiserv.
(b)
Changes.
Fiserv
continually reviews and modifies Fiserv systems used in the delivery of Services
(the "Fiserv System") to improve service and comply with government regulations,
if any, applicable to the data and information utilized in providing Services.
Fiserv reserves the right to make changes in Services, including but not limited
to operating procedures, type of equipment or software resident at, and the
location of Fiserv's service center(s), provided that any such change shall
not
materially degrade the Services. Fiserv will notify Client of any material
change that affects Client's normal operating procedures, reporting, or service
costs at least thirty (30) days prior to implementation of such
change.
(c)
Communications
Lines. Fiserv
shall order the installation of appropriate communication lines and equipment
to
facilitate Client's access to Services. Client understands and agrees to pay
charges relating to the installation and use of such fines and equipment as
set
forth in the Exhibits.
(d)
Terminals
and Related Equipment Client
shall obtain necessary and sufficient terminals and other equipment, approved
by
Fiserv and compatible with the Fiserv System, to transmit and receive data
and
information between Client's location(s), Fiserv's service center(s), and/or
other necessary location(s). Fiserv and Client may mutually agree to change
the
type{s) of terminal and equipment used by Client.
5.
Client
Obligations. (a)
Input. Client
shall be
solely
responsible for the input, transmission, or
delivery
to
and
from
Fiserv
of
all
information and data required by Fiserv to
perform
Services unless Client has retained Fiserv to handle such responsibilities,
as
specifically set forth in
the
Exhibits. The information and data shall be
provided
in
a
format
and manner approved by Fiserv .Client will provide at its own
expense
or
procure
from
Fiserv
all equipment computer software, communication lines, and interface devices
required to
access
the Fiserv System. If
Client
has elected to
provide such items itself, Fiserv shall provide Client with a list of compatible
equipment and software; Client agrees to pay Fiserv's standard fee for
recertification of the Fiserv System resulting there from.
(b)
Client
Personnel. Client
shall designate appropriate Client personnel for training in the use of the
Fiserv System, shall supply Fiserv with
reasonable
access to Client's site during normal business hours for Implementation Services
and shall cooperate with Fiserv personnel in their performance of
Services.
(c)
Use
of
Fiserv System. Client
shall (i) comply with any operating instructions on the use of the Fiserv System
provided by Fiserv; (ii) review an reports furnished by Fiserv for accuracy;
and
(iii) work with Fiserv to reconcile any out of balance conditions. Client shall
determine and be responsible for the authenticity and accuracy of all
information and data submitted to Fiserv.
(d)
Client's
Systems. Client
shall be
responsible
for ensuring that its
systems
are Year 2000 compliant and otherwise capable of
passing
and/or accepting data from and/or to
the
Fiserv System;
6.
Ownership
and Confidentiality. (a) Definition.
(i)
Client
Information. "Client
Information" means: (A) confidential plans, customer lists, information,
research, development, trade secrets, business affairs (including that of any
of
Client's customers, suppliers, or affiliates) and other proprietary material
of
Client that is marKed with a restrictive legend, or if not so marked with such
legend or is disclosed orally, is identified as confidential at the time of
disclosure (and written confirmation thereof is promptly provided to Fiserv);
(B) Client's proprietary computer programs and all data, code, techniques,
algorithms, methods, logic, architecture, and designs embodied or incorporated
therein (whether or not any such information is marKed with a restrictive
legend); and (C) any information and data concerning the business and financial
records of Client's customers prepared by or for Fiserv, or used in any way
by
Fiserv in connection with the provision of Fiserv Services (whether or not
any
such information is marked with a restrictive legend).
(ii)
Fiserv
Information. "Fiserv
Information" means: (A} confidential plans, information, research, development,
trade secrets, business affairs (including that of any Fiserv client, supplier,
or affiliate}, and other proprietary material of FISerV that is marked with
a
restrictive legend, or if not so marked with such legend or is disclosed orally,
is identified as confidential at the time of disclosure (and
written
4
confirmation
thereof is promptly provided to Client); and (B) Fiserv's proprietary computer
programs, including custom software modifications. software documentation and
training aids, and all data, code, techniques, algorithms, methods, logic,
architecture, and designs embodied or incorporated therein (whether or not
any
such information is marked with a restrictive legend).
(iii)
Information.
"Information"
means Client Information and Fiserv Information. No obligation of
confidentiality applies to any Information that the receiving party
("Recipient") (A) already possesses without obligation of confidentiality;
(B)
develops independently; or (C) rightfully receives without obligation of
confidentiality from a third party. No obligation of confidentiality applies
to
any Information that is, or becomes, publicly available without breach of this
Agreement.
(b)
Obligations.
Recipient
agrees to hold as confidential all Information it receives from the disclosing
party ("Discloser"). All Information shall remain the property of Discloser
or
its suppliers and licensors. Information will be returned to Discloser at the
termination or expiration of this Agreement Fiserv specifically agrees that
it
will not use any non-public personal information about Client's customers in
any
manner prohibited by Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act Recipient will use
the same care and discretion to avoid disclosure of Information as it uses
with
its own similar information that it does not wish disclosed, but in no event
less than a reasonable standard of care. Recipient may only use Information
in
accordance with the purpose of this Agreement Recipient may disclose Information
to (i) employees and employees of affiliates who have a need to knOW; and (ii)
any other party with Discloser's written consent Before disclosure to any of
the
above parties, Recipient will have a written agreement with such party
sufficient to require that party to treat Information in accordance with this
Agreement Recipient may disclose Information to the extent required by law.
However, Recipient agrees to give Discloser prompt notice so that it may seek
a
protective order. The provisions of this sub-section survive any termination
or
expiration of this Agreement
(c)
Residuals.
Nothing
contained in this Agreement shall restrict Recipient from the use of any ideas,
concepts, know-how, or techniques contained in Information that are related
to
Recipients business activities ("Residuals"), provided that in so doing,
Recipient does not breach its obligations under this Section. However, this
does
not give Recipient the right to disclose the Residuals except as set forth
elsewhere in this Agreement
(d)
Fiserv
sYStem. The
Fiserv System contains information and computer software that are proprietary
and confidential information of Fiserv, its suppliers, and licensors. Client
agrees not to attempt to circumvent the devices employed by Fiserv to prevent
unauthorized access to the Fiserv System, including, but not limited to,
alterations, decompiling, disassembling, modifications, and reverse engineering
thereof.
(e}
Information
Security. Fiserv
shall implement and maintain appropriate measures designed to meet the
objectives of the guidelines establishing standards for safeguarding non-public
Client customer information as adopted by any federal regulatory agencies having
jurisdiction over
Client's
affairs.
(f)
Confidentiality
of
this
Agreement. Fiserv
and Client agree to
keep
confidential the prices, terms and conditions of
this
Agreement~ without disclosure to
third
parties.
7
Regulatory
Agencies. Regulations and Legal Requirement (a)
Client
Files. Records
maintained and produced for Client ("Client Files") may be subject to
examination by such Federal, State, Or other governmental regulatory agencies
as
may have jurisdiction over Client's business to the same extent as such records
would be subject if maintained by Client on its premises. Client agrees
that Fiserv is authorized to give all reports, summaries, or informaton
contained in or derived from the data or information in Fiserv's possession
relating to Client when formally requested to do so by an authorized regulatory
or government agency. Fiserv agrees that Client Files shall remain The property
of Client, and that Fiserv shall not possess any interest, lien or right to
keep
Client Files except as otherwise set forth in this Agreement
(b)
Compliance
with Regulatory Requirements. Client
agrees to comply with applicable regulatory and legal requirements, including
without limitation:
(i)
submitting a copy of this Agreement to the appropriate regulatory agencies
prior
to the date Services commence;
(ii)
providing adequate notice to the appropriate regulatory agencies of the
termination of this Agreement or any material changes in Services;
(iii)
retaining records of its accounts as required by regulatory
authorities;
(iv)
obtaining and maintaining, at its own expense, any Fidelity Bond required by
any
regulatory or governmental agency; and
(v)
maintaining, at its own expense, such casualty and business interruption
insurance coverage for loss of records from fire, disaster, or other causes,
and
taking such precautions regarding the same, as may be required by regulatory
authorities.
5
8.
Warranties.
(a)
Fiserv
Warranties. Fiserv represents
and warrants that:
(i)(A)
Services will conform to the specifications set forth in the Exhibits; (B)
Fiserv will perform Clients work accurately provided that Client supplies
accurate data and information, and follows the procedures described in all
Fiserv documentation, notices, and advices; (C) Fiserv personnel will exercise
due care in provision of Services; (D) the Fiserv System WIll comply in all
material respects with all applicable Federal regulations governing Services;
and (E) the Fiserv System is Year 2000 compliant In the event of an error or
other default caused by Fiserv personnel, systems, or equipment, Fiserv shall
correct the data or information and/or reprocess the affected item or report
at
no additional cost to Client. Client agrees to supply Fiserv with a written
request for correction of the error within 7 days after Clients receipt of
the
work containing the error. Fiserv shall use commercially reasonable efforts
to
correct errors of which Fiserv is notified after such 7-day time period. Work
reprocessed due to errors in data supplied by Client, on Client's behalf by
a
third party, or by Clients failure to follow procedures set forth by Fiserv
shall be billed to Client at Fiserv's then current time and material rates;
and
(ii)
it
owns or has a license to furnish ail equipment or software comprising the FlServ
System. Fiserv shall indemnify Client and hold it harmless against any claim
or
action that alleges that the Fiserv System and/or Clent's use of the Fiserv
System infringes a patent, copyright or other proprietary right of a third
party. Client agrees to notify FlServ promptly of any such claim and grants
Fiserv the sole right to control the defense and disposition of all such claims.
Client shall provide Fiserv with reasonable cooperation and assistance in the
defense of any such claim. Fiserv agrees that if the Fiserv System becomes,
or
in Fiserv's reasonable opinion is likely to become, the subject of a claim
of
infringement, or should use of the Fiserv System be enjoined, Fiserv shall,
in
addition to its indemnification obligations above, at its sole cost and expense:
(i) procure for Client the right to continue using the Fiserv System; or (ii)
modify the Fiserv System to make it non-infringing with no material loss in
functionality or material nonconformance to the applicable specifications.
If
neither of the foregoing are commercially reasonable alternatives, Fiserv may
replace the Fiserv System with a replacement product that has no material loss
in functionality and/or Fiserv may , but is not obligated to, terminate this
Agreement upon written notice to Client, and Client shall not be required to
pay
any termination fees or liquidated damages pursuant to Sections 11(d) and
(e).
THE
WARRANTIES STATED HEREIN ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES
MADE BY FISERV. FISERV DOES NOT MAKE, AND CLIENT HEREBY
EXPRESSLY WAIVES, ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE STATED EXPRESS
WARRANTIES ARE IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF FISERV FOR DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF FISERV
SERVICES.
(b)
Client
Warranties. Client
represents and warrants that (A) no contractual obligations exist that would
prevent Client from entering into this Agreement; (B) it has complied with
all
applicable regulatory requirements; and (C) Client has requisite authority
to
execute, deliver, and perform this Agreement Client shall indemnify and hold
harmless Fiserv, its officers, directors, employees, and affiliates against
any
claims or actions arising out of (X) the use by Client of the Fiserv System
in a
manner other than that provided in this Agreement; and (Y) any and all claims
by
third parties through Client arising out of the performance and non- performance
of Fiserv Services by Fiserv , provided
that
the
indemnity listed in clause (Y) hereof shall not preclude Client's recovery
of
direct damages pursuant to the terms and subject to the limitations of this
Agreement.
9.
Limitation
of Liability. (a)
General. IN NO EVENT SHALL FISERV BE LIABLE FOR LOSS OF GOODWILL, OR FOR
SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM CLIENT'S
USE OF FISERV SERVICES, OR FISERV'S SUPPLY OF EQUIPMENT OR SOFTWARE, REGARDLESS
OF WHETHER SUCH CLAIM ARISES IN TORT OR IN CONTRACT. CLIENT MAY NOT ASSERT
ANY
CLAIM AGAINST FISERV MORE THAN 2 YEARS AFTER SUCH CLAIM ACCRUED. FISERV'S
AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTION RELATING TO THIS AGREEMENT
SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO FISERV FOR THE FISERV
SERVICE RESULTING IN SUCH LIABILITY IN THE 2 MONTH PERIOD PRECEDING THE DATE
THE
CLAIM ACCRUED. FISERV'S AGGREGATE LIABILITY FOR A DEFAULT RELATING TO THIRD
PARTY EQUIPMENT OR SOFTWARE SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT FOR
THE EQUIPMENT OR SOFTWARE. WITH THE EXCEPTION OF CLIENT'S BREACH OF SECTION
6,
MISUSE OF FISERV'S INTELLECTUAL PROPERTY, BREACH OF SECTION 15(k), AND ALL
PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, CLIENT'S AGGREGATE LIABILITY TO FISERV
FOR ANY AND ALL CAUSES OF ACTION UNDER THIS AGREEMENT SHALL BE LIMITED TO
$100,000.00.
6
WHETHER
SUCH CLAIM ARISES IN TORT OR IN CONTRACT. CLIENT MAY NOT ASSERT ANY CLAIM
AGAINST FISERV MORE THAN 2 YEARS AFTER SUCH ClAIM ACCRUED. FISERVS AGGREGATE
LIABILITY FOR ANY AND ALL CAUSES OF ACTION RELATING TO THIS AGREEMENT SHALL
BE
LIMITED TO THE TOTAL FEES PAID BY CLIENT TO FISERV FOR THE FISERV SERVICE
Resulting IN SUCH LIABILITY IN THE 2 MONTH PERIOD PRECEDING THE DATE THE CLAIM
ACCRUED. FISERVS AGGREGATE LIABILITY FOR A DEFAULT RELATING TO THIRD PARTY
EQUIPMENT OR SOFTWARE Shall BE LIMITED TO THE AMOUNT PAID BY CLIENT FOR THE
EQUIPMENT OR SOFTWARE. WITH THE EXCEPTION OF CLIENT'S BREACH OF SECTION 6,
MISUSE OF FISERV'S INTELLECTUAL PROPERTY, BREACH OF SECTION 15(k), AND ALL
PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, CLIENTS AGGREGATE LIABILITY TO FISERV
FOR ANY AND ALL CAUSES OF ACTION UNDER THIS AGREEMENT SHALL BE LIMITED TO
$100,000.00.
(b)
Lost
Records. If
Client's records
or
other
data Submitted for processing are
lost
or damaged as a result
of
any
failure
by
FIserV,
its employees, or
agents
to
exercise reasonable care
to
prevent such
loss
or
damage,
Fiserv's liability on account
of
such
loss
or
damages shall
not
exceed the
reasonable
cost of
reproducingsuch
records or data
from
exact
duplicates
thereof
in Clients' possession.
10.
Disaster
Recovery. (a)
General.
Fiserv
maintains a disaster recovery plan ("Disaster Recovery Plan") for each Service.
A "Disaster" shall mean any unplanned interruption of the operations of or
inaccessibility to Fiserv's service center in which Fiserv, using reasonable
judgment, requires relocation of processing to a recovery location.
Fiservshall notify Client as soon as possible after Fiserv
deems a service outage to be a Disaster. Fiservshall move the processing
of Client's standard services to a recovery location as expeditiously as
possible and shall coordinate the cut-over to back-up telecommunication
facilities with the appropriate carriers. Client shall maintain adequate records
of all transactions during the period of service interruption and shall have
personnel available to assist Fiservin implementing the switchover to the
recovery location. During a Disaster, optional or on-request services shall
be
provided by Fiservonly to the extent adequate capacity exists at the recovery
location and only after stabilizing the provision of base services.
(b)
Communications.
Fiservshall
work
with
Client to establish a
plan
for
alternative communications in the
event
of
a
Disaster.
(c)
Disaster
Recovery Test. Fiservshall
test the
Disaster
Recovery Plan
periodically.
Client agrees to participate in and assist Fiservwith such
test,
if
requested
by
Fiserv.
Upon Client's request, test results will be
made
available
to Client's management, regulators, auditors, and insurance
underwriters.
(d)
Client
Plans. Fiserv agrees
to
release information necessary to allow Client's development of a
disaster recovery plan that operates in concert with the Disaster Recovery
Plan.
(e)
No
Warranty. Client
understands and agrees that the
Disaster
Recovery Plan
is
designed to minimize, but
not
eliminate, risks associated with a
Disaster
affecting Fiserv's service center(s). Fiserv does
not
warrant that Fiserv Services
will be
uninterrupted
or
error
free in
the
event
of
a
Disaster;
no
performance
standards shall be
applicable
for
the
duration
of
a
Disaster,
provided that Fiserv shall
use
commercially
reasonable efforts to meet the
performance
standards while providing Services at
the
recovery
location. Client maintains responsibility for adopting a
disaster
recovery
plan
relating to disasters affecting Client's facilities and
for
securing business interruption insurance or
other
insurance necessary for Client's protection.
11.
Termination.
(a)
Material
Breach. Except
as
provided
elsewhere in this Section 11, either party may
terminate
this Agreement in the
event
of
a
material
breach
by
the
other
party
not
cured
within 90
days
following
written notice stating, with particularity and
in
reasonable detail, the
nature
of
the
claimed
breach.
(b)
Failure
to
pay.
In
the
event
any
invoice remains unpaid by
Client
60
days
after
due, or
Client
deconverts
any
data or information
from
the
Fiserv System
without prior written consent of Fiserv, Fiserv, at its sole option, may
terminate this Agreement and/or Client's access
to
and
use
of
Fiserv Services.
Any invoice Submitted by Fiserv shall
be
deemed
correct
unless Client provides written notice to Fiserv within
60
days
of
the
invoice
date specifying the
nature
of
the disagreement
(c)
Remedies.
Remedies
contained in this Section 11 are cumulative and are in addition to the other
rights and remedies available to either party under this Agreement, by law
or
otherwise.
(d)
Defaults.
If
Client:
0)
Defaults in the
payment
of any sum of
money
due
in
accordance with Section 11(b), which is not cured within 30
days
following written notice of the
claimed
default;
7
(e)
Convenience;
Early Termination. Client
may terminate this Agreement by paying a termination fee based on the remaining
unused term of this Agreement, the amount to be determined by multiplying the
average of Clients monthly invoices for each Fiserv Service received by Client
during the 6-month period preceding the effective date of termination (or if
no
monthly invoice has been received, the sum of the estimated monthly billing
for
each Fiserv Service to be received hereunder) by (i) 70% times the remaining
months of the term during the first 12 months following Client's conversion
to
the FlServ Services; or (ii) 65% limes the remaining months of the term during
the months 13- 24 following client's conversion to the Fiserv Services; or
(iii)
60% times the remaining months of the term during the months 25-36 following
Client's conversion to the FIServ Services, plus any unamortized conversion
fees or third party costs existing on Fiserv's books on the date of termination.
Client understands and agrees that Fiserv losses incurred as a result of early
termination of the Agreement would be difficult or impossible to calculate
as of
the effective date of termination since they will vary based on, among other
things, the number of clients using the Fiserv System on the date the Agreement
terminates. Accordingly, the amount set forth in the first sentence of this
subsection represents Client's agreement to pay and Fiserv's agreement to accept
as liquidated damages (and not as a penalty) such amount for any such Client
termination.
(f)
Return
of Data Files. Upon
expiration or termination of this Agreement, Fiserv shall furnish to Client
such
copies of Client Files as Client may request in a Fiserv standard format along
with such information and assistance as is reasonable and customary to enable
Client to deconvert from the Fiserv System, provided,
however, that
Client consents and agrees and authorizes Fiserv to retain Client Files until
(i) Fiserv is paid in full for (A) all Services provided through the date such
Client Files are returned to Client; and (8) any and all other amounts that
are
due or
will become
due under this Agreement; (ii) Fiserv is paid its then standard rates for the
services necessary to return such Client Files; (iii) if this Agreement is
being
terminated, Fiserv is paid any applicable termination fee pursuant to subsection
(d) or (e) above; and (IV) Client has returned to Fiserv all Fiserv Information.
Unless directed by Client in writing to the contrary, Fiserv shall be permitted
to destroy Client's Files any time after 90 days from the final use of Client
Files for processing.
(g)
Fiserv Bankruptcy. Client
may terminate this Agreement (i) upon sixty (60) days written notice to Fiserv
in the event Fiserv commits an act of bankruptcy or becomes the subject ti
any
proceeding under the Bankruptcy Code and such action or proceeding is not
dismissed by the end of such 60-day period, or (ii) upon written notice in
the
event Fiserv becomes insolvent or if any substantial part of Fiserv's
property becomes subject to any levy, seizure, assignment application, or sale
for or by any creditor or governmental agency.
(h)
Miscellaneous.
Client
understands and agrees that Client is responsible for the deinstallation and
return shipping of any Fiserv-owned equipment located on Client's
premises.
12.
Dispute
Resolution. (a)
General. Except with respect to disputes arising from a misappropriation
or misuse of either party's proprietary rights, any dispute or controversy
arising out of this Agreement or its interpretation, shall be submitted to
and
resolved exclusively by arbitration under the rules then prevailing of the
American Arbitration Association, upon written notice of demand for arbitration
by the party seeking arbitration, setting forth the specifics of the matter
in
controversy or the claim being made. The arbitration shall be heard before
an
arbitrator mutually agreeable to the parties; provided, that if the parties
cannot agree on the choice of arbitrator within 10 days after the first party
seeking arbitration has given written notice, then the arbitration shall be
heard by 3 arbitrators, 1 chosen by each party, and the third chosen by those
2
arbitrators. The arbitrators will be selected from a panel of persons having
experience with and knowledge of information technology and at least 1 of the
arbitrators selected will be an attorney. Discovery shall not be permitted.
A
hearing on the merits of all claims for which arbitration is sought by either
party shall be commenced not later than 60 days from the date demand for
arbitration is made by the first party seeking arbitration. The arbitrator(s)
must render a decision within 10 days after the conclusion of such hearing.
Any
award in such arbitration shall be final and binding upon the parties and the
judgment thereon may be entered in any court of competent
jurisdiction.
(b)
Applicable
Law. The
arbitration shall be
governed
by the United States Arbitration Act, 9
U.S.C.
1-16.
The
arbitrators shall apply the substantive law
ofthe
State
of
New
York,
without reference to
provisions
relating to
conflict
of
laws.
The
arbitrators shall not have the power to
alter,
modify, amend, add to, or
subtract
from any term or provision of
this
Agreement, nor to
rule
upon
or
grant
any
extension, renewal, or continuance of this Agreement. The arbitrators shall
have
the authority togrant
any
legal remedy available had the parties submitted the
dispute
to a
judicial
proceeding.
(c}
Situs. If arbitration is required to resolve any disputes between the
parties, the proceedings to resolve such disputes shall be held in Miami,
Florida.
13.
Insurance.
Fiserv
shall carry the following types of insurance policies during the term of this
Agreement
8
(i}
Comprehensive General Liability in an amount not less than $1 million per
occurrence for claims arising out of bodily injury and property
damage;
(ii)
Commercial Crime covering employee dishonesty in an amount not less than $5
million;
(iii)
All-risk property coverage including Extra Expense and Business Income coverage;
and
(iv}
Workers Compensation as mandated or allowed by the laws of the state in which
Services are being performed, including $1 million coverage for Employer's
Liability.
14.
Audit. Fiserv employs an internal auditor responsible for ensuring the
integrity of its processing environments and internal controls. In addition,
as
may be required by law or regulation, Fiserv provides for periodic independent
audits of its operations. Fiserv shall provide Client with a copy of the audit
of the Fiserv service center providing Services within a reasonable time after
its completion and shall charge each client a fee based on the pro rata cost
of
such audit. Fiserv shall also provide a copy of such audit to the appropriate
regulatory agencies, if any, having jurisdiction over Fiserv's provision of
Services. In the event a material deficiency noted during a Fiserv SAS70 audit
causes client to be unable to complete its internal compliance review for the
applicable period, then Client may perform a limited reviewof
the
applicable deficiency on Fiserv's premises, subject to the following- (a) Fiserv
and Client shall mutually agree on the commencement and completion times for
such review; (b) the review shall be Conducted during Fiserv's normal business
hours, without disruption to Fiserv's business operations; (c) the review shall
be limited solely to the applicable deficiency as described above; (d) Client
shall not have access to Confidential information of any other Fiserv clients;
(e) Client shall be charged Fiserv's then current professional services rates
for the Fiserv personnel involved in the review; and (f) Client shall comply
with all Fiserv facility and security rules and procedures while on Fiserv's
premises.
15.
General. (a) Binding
Agreement This
Agreement is binding upon the parties and their respective successors and
permitted assigns. Neither this Agreement nor any interest may be sold,
assigned, transferred, pledged, or otherwise disposed of by Client, whether
pursuant to change of control or otherwise, without Fiserv's prior written
consent which consent shall not be unreasonably withheld or unduly delayed.
Client agrees that Fiserv may subcontract any Services to be performed
hereunder. Any such subcontractors shall be required to comply with all
applicable terms and conditions.
(b)
Entire
Agreement. This
Agreement including its Exhibits, which are expressly incorporated herein by
reference, constitutes the complete and exclusive statement of the agreement
between the parties as to the subject matter
hereof and supersedes all previous agreements with respect thereto.
Modifications of this Agreement must be in writing and signed by duly authorized
representatives of the parties. Each party hereby acknowledges that it has
not
entered into this Agreement in reliance upon any representation made by the
other party not embodied herein. In the event any of the provisions of any
Exhibit are in conflict with any of the provisions of this Agreement, the terms
and provisions of this Agreement shall control
unless
the Exhibit in question expressly provides that its terms and provisions shall
control.
(c)
Severability.
If
any
provision of this Agreement is
held
to
be
unenforceable
or
invalid,
the other provisions shall continue in full force and effect.
(d)
Governing
law. This
Agreement will be governed by the substantive laws of the State of New York,
without reference to provisions relating to conflict of laws. The United Nations
Convention of Contracts for the International Sale of Goods shall not apply
to
this Agreement.
(e)
Force
Majeure. Neither
party shall be responsible for delays or failures in performance resulting
from
acts reasonably beyond the control of that party. In the event Fiserv is unable
to perform Services for a period of more than thirty (30) days as a result
of
any force majeure event, the parties shall negotiate in good faith an equitable
modification to this Agreement with respect to the Services affected by the
force majeure event
(f)
Notices. Any written notice required or permitted to be given hereunder
shall be given by: (i) Registered or Certified Mail, Return Receipt Requested,
postage prepaid; (ii) confirmed facsimile; or (iii) nationally recognized
courier service to the other party at the addresses listed on the cover page
or
to such other address or person as a party may designate in writing. All such
notices shall be effective upon receipt.
(g)
No
Waiver. The
failure of
either
party toinsist
on
strict
performance of
any
of
the
provisions hereunder shall not be construed as the waiver of
any
subsequent default of
a
similar
nature.
(h)
Financial
Statements.
Fiserv
shall provide Client and the appropriate regulatory agencies so requiring a
copy
of Fiserv, Inc.'s audited consolidated financial statements.
(i)
Prevailing
Party. The
prevailing party in any arbitration, suit, or action brought against the other
party to enforce the terms of this Agreement or any rights or obligations
hereunder, shall be entitled to receive its reasonable costs, expenses, and
attorneys' fees of bringing such arbitration, suit, or action.
9
(e)
Force
Majeure. Neither
party shall be responsible for delays or failures in performance resulting
from
acts reasonably beyond the control of that party. In the event Fiserv is
unable to perform Services for a period of more than thirty (30) days as a
result of any force majeure event, the parties shall negotiate in good faith
an
equitable modification to this Agreement with respect to the Services affected
by the force majeure event.
(f)
Notices. Any
written
notice required or
permitted
to
be
given
hereunder shall be
given
by:
(i) Registered or
Certified
Mail, Return Receipt Requested, postage prepaid; (ii) confirmed facsimile;
or
(iii)
nationally recognized courier Service to the
other
party
at
the
addresses listed
on
the
cover page or to such other
address
or person as a party may designate
in writing. All such
notices
shall be
effective
uponreceipt.
(g)
No
Waiver. The
failure
of
either
party to insist on
strict
performance of any of the
provisions
hereunder shall not be
construed
as
the
waiver of
any
subsequent default of a
similar
nature.
(h)
Financial
Statements. Fiserv
shall provide Client and
the
appropriate
regulatory agencies so
requiring
a
copy of
Fiserv,
Inc.'s audited consolidated financial statements.
(i)
Prevailing
Party. The
prevailing
party in any arbitration, suit, or
action
brought against the
other
party
to
enforce the
terms
of
this Agreement or any
rights or
obligations
hereunder, shall be
entitled
to receive
its
reasonable costs, expenses, and attorneys' fees of bringing such
arbitration,
suit, or
action.
(j)
Survival.
All
rights and
obligations
of
the
parties
under this Agreement that, by
their
nature, donot
terminate with the
expiration
or
termination
of this Agreement shall survive the
expiration
or
termination
of this Agreement.
(k)
Exclusivity.
Client
agrees that Fiserv shall be
the
sole
and
exclusive
provider of the
services
that are the
subject
matter of
this
Agreement During the
term
of
this Agreement, Client agrees not to enter into an agreement with any other
entity to provide these
services
(or similar services) without Fiserv's prior written consent. If Client acquires
another entity, the
exclusivity
provided to Fiserv hereunder shall take effect with respect to such
acquired
entity as
soon
as practicable
after termination of such
acquired
entity's previously existing arrangement for these
services.
If
Client
is
acquired by another entity, the
exclusivity
provided to Fiserv hereunder shall apply
with
respect
to
the
level
or
volume
of
these
services
provided immediately prior to the
signing
of the definitive acquisition agreement relating to such acquisition and shall
continue with
respect to the
level
or
volume
of
these services until any termination or
expiration
of this Agreement.
(l)
Recruitment
of Employees. Client
agrees not to hire Fiserv's employees during the
term
of
this Agreement and
for
a
period
of
6
months
after any termination or
expiration
thereof, except with Fiserv's prior written consent; provided, however, that
Client shall not be
prohibited
from
placing
general employment advertisements or
solicitations
not specifically targeted to Fiserv's employees or
hiring
Fiserv's employees who
respond to
such
advertisements.
(m}
Publicity.
The
parties
shall mutually agree on
a
press release
relating to the
execution
of this Agreement. Each party shall mutually agree with the
other
regarding any media release, public announcement, or
similar
disclosure relating to this Agreement or
its
subject matter and
shall
give the
other
party
a
reasonable
opportunity to review and comment on
the
content
of
such
release,
announcement, or
disclosure
prior to its release. Notwithstanding the
foregoing,
Fiserv shall have the
right
to
make general references to Client and the
type
of
services being provided by
Fiserv
to
Client under this Agreement in Fiserv's oral and visual presentations to Fiserv
clients, prospective
Fiserv
clients, and financial analysts, provided that such references shall
be
consistent
with any such
mutually
agreed press
release
and
Section
6(f).
16.
Performance
Standards. (a)
Remedy.
The
Fiserv standard of performance with respect to any Service provided hereunder
shall be set forth in the applicable Exhibit for the Service being
provided. In the event that Fiserv fails to meet the standards set forth
in the applicable Exhibit or other service commitment standards as may be agreed
upon between Fiserv and Client, and such failure is not the result of Client's
error or omission. In the event that Fiserv fails to achieve any
performance standard, alone or in combination, during any 3 of 6 measurement
periods, Client, may at it's option, notify Fiserv of its intent to terminate
this Agreement. Fiserv, upon receipt of notice, shall advise Client
promptly upon correction of the deficiencies (in no event shall corrective
action exceed sixty (60) days from the notice date) and shall begin an
additional measurement period. Should Fiserv fail to achieve the required
performance standard during the remeasurement period, Client may terminate
this
Agreement without penalty or deconversion fees.
(b)
Location.
If
Fiserv
relocates its Miami IP Center, Fiserv commits
to
maintaining the
same
general level of availability
on
Transit items
that
the
Bank receives from the current
Fiserv location, and
to
paying
the
Bank
any expense differential
that
may
incur
from
additional
courier expenses
to the new location on the same deliveryschedule
being
used
prior
to
the
relocation.
10
Exhibit
B
| For Client: | For Fiserv: | ||
| Commercial Bank of Florida | Fiserv Solutions, Inc | ||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | /s/ ▇▇▇ ▇. Fries | ||
|
|
|
||
| Name:
▇▇▇▇▇▇
▇▇▇▇▇ Title: SVP Date: 12-27-2004 |
Name:
▇▇▇
▇.
Fries Title: PRESIDENT Date: 01/14/05 |
11