Exhibit 10.11
Data Processing Agreement dated December 1, 1991 by and between ALLTEL
Financial Information Services, Inc., (formerly Systematics, Inc.) and
▇▇▇▇▇▇▇ Bank (formerly ▇▇▇▇▇▇▇ Information Systems, Inc.
55
DATA PROCESSING AGREEMENT
by and between
SYSTEMATICS FINANCIAL SERVICES, INC.
and
▇▇▇▇▇▇▇ INFORMATION SYSTEMS, INC.
December 1, 1991
TABLE OF CONTENTS
1. Services 1
2. Term 1
3. Responsibilities of the Parties 1
3.1 Computer Equipment 2
3.2 Terminals/Communications Cost 2
3.3 Processing Schedule 2
3.4 Client Approval of Program Changes 2
3.5 Confidentiality of Client Data 2
3.6 Delivery 2
3.7 Supplies and Forms 2
3.8 Client's Input Data 3
4. Data Processing Premises and Security 3
4.1 Data Processing Premises 3
4.2 Security Standards 3
5. Software 3
5.1 Additional Licensed Programs 4
5.2 Software Warranty 4
5.3 User Manuals 4
5.4 Third Party Software 4
5.5 Installation of New Systems and Subsystems 5
5.6 Modifications Requested by Client 5
5.7 Regulatory Reporting Requirements 5
6. Education 5
7. Staffing; Computer Use 6
7.1 Resident Technical Staff 6
7.2 Special Computer Use 7
8. Time of Performance 7
9. Performance Standards and Penalties 8
9.1 Performance Benchmarks 8
9.2 On-Time Delivery - Output to Client 8
9.3 On-Time Delivery - Input from Client 8
9.4 On-Line Uptime 8
9.5 On-Line Response Time 8
9.6 Remedies 9
9.7 Force Majeure 9
9.8 Exclusive Remedy 9
10. Termination 10
10.1 Right to Terminate 10
10.2 Method of Termination 10
10.3 Data, Systems and Programs 10
10.4 Early Termination 10
11. Transitional Cooperation 11
11.1 Offer of Employment 11
11.2 Transition 11
11.3 Equipment 11
11.4 Additional Support 11
12. Backup Files, Storage and Programs 11
12.1 Files and Programs 11
12.2 Storage 12
12.3 Disaster Recovery 12
12.4 Emergency Backup 12
13. Service Bureau Customers 13
13.1 Client's Service Bureau Customers 13
13.2 SI's Service Bureau Customers 13
14. Effective Planning and Communication 13
14.1 Steering Committee 13
14.2 Audit Conference 13
14.3 Annual Executive Review 14
15. Payment and Billing 14
16. No Interference with Contractual Relationship 15
17. No Waiver of ▇▇▇▇▇▇▇ ▇▇
▇▇. Processing Priorities 15
19. Mergers and Acquisitions 15
20. Entire Agreement 15
21. Assignment 16
22. Confidential Agreement 16
23. Taxes 16
24. Independent Contractor 16
24.1 Client Supervisory Powers 17
24.2 SI's Employees 17
24.3 SI as an Agent 17
24.4 Workers Compensation 17
25. Client and SI Employees 17
26. Previous Liabilities 17
27. Notices 18
28. Covenant of Good Faith 18
29. Limitation of Liability 18
30. Insurance 18
31. Section Titles 18
32. Counterparts 18
33. Financial Statements 19
34. Governing Law 19
EXHIBITS
A. Systems Installation Schedule
B. Reports
C. Charges
D. Reporting Schedule
E. Equipment
F. Client-Furnished Equipment and Software
G. Software License Agreement
H. Disaster Recovery Agreement
I. Insurance Coverage
DATA PROCESSING AGREEMENT
This is an Agreement, dated as of the 1st day of December, 1991
(hereinafter the "Effective Date"), by and between SYSTEMATICS FINANCIAL
SERVICES, INC., an Arkansas corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter "SI") and
▇▇▇▇▇▇▇ INFORMATION SYSTEMS, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(hereinafter "Client").
In consideration of the payments to be made and services to be performed
hereunder, the parties agree as follows:
1. Services.
SI will provide to Client the data processing services and products
described in this Agreement and its exhibits. Such services and products
include, but are not limited to, the general management of Client's data
processing, installation and enhancement of SI-developed software systems,
operation of software systems developed by SI and third parties,
programming services, furnishing and operating computer equipment,
providing information in various media forms, and a license to use SI
software systems. The specific services provided and the applicable fees
therefor are described in more detail in this Agreement and its Exhibits.
2. Term.
The term of this Agreement is five (5) years, beginning on the Effective
Date reflected above. The end of such term shall be the "Expiration Date".
At least nine (9) months prior to the Expiration Date, SI will submit to
Client a written proposal for renewal of this Agreement. Client will
respond to such proposal within ninety (90) days following receipt thereof.
3. Responsibilities of the Parties.
SI and Client agree to be responsible for the following matters:
3.1 Computer Equipment. Except as otherwise provided in this
Agreement (see Exhibit F and Section 2 of Exhibit C), SI will supply all
CPUs, communications controllers, DASD equipment, tape/cartridge equipment,
printers and related peripheral equipment which may be required for its
operation of the Data Center as defined in Section 4.1.
3.2 Terminals/Communications Cost. Client will pay all costs of
installing and utilizing communication or telephone lines, data sets,
modems, ATMs, terminals, and terminal control units, as required for
Client's on-line operations, testing and training. SI will provide the
terminals and personal computers used by its personnel. Client will
provide all personal computers used by its personnel.
3.3 Processing Schedule. SI will process and update Client's data in
accordance with Exhibit D.
3.4 Client Approval of Program Changes. All changes to programs used
to process Client's data affecting input, output, control, audit, or
accounting procedures of Client shall be made only with the approval of
Client.
3.5 Confidentiality of Client Data. All information concerning
Client, its business or customers submitted to SI pursuant to this
Agreement shall be held in confidence by SI and shall not be disclosed. No
person or entity shall be permitted to have access to Client's data without
the written authorization of Client. All of Client's data shall be
available for examination by Client, at any time during regular business
hours, without notice. If SI receives any legal process requiring it to
produce Client's data or that of any of its customers, SI shall notify
Client promptly, and deliver copies of such orders to Client, immediately
and prior to compliance with such process.
SI recognizes Client's absolute ownership of Client information and hereby
releases, in advance, any claim, lien, or encumbrance with respect thereto.
SI agrees that it shall not, in any event, retain or attempt to retain any
Client information in an attempt to secure performance by Client of any of
the terms or conditions of this Agreement.
3.6 Delivery. Client, or its designee, is responsible for delivery
of all input and output data to and from the Data Center (see Section 4.1).
Subject to Client's responsibility for microfilming MICR
documents prior to delivery to SI, SI is responsible for safekeeping
Client's documents while in SI's possession in the Data Center.
3.7 Supplies and Forms. SI will provide all magnetic tapes, tape
cartridges and impact printer ribbons required to perform SI's processing
responsibilities during the term of this Agreement. Client will provide
all input and output forms, balance control forms, stock paper, and any
forms necessary for SI to meet the processing requirements of Client, as
well as adequate storage therefor.
3.8 Client's Input Data. All magnetic tapes and input data furnished
by Client to SI shall be in machine readable condition, accompanied by
control totals. Client assumes all risk of loss and expenses of
reconstruction of input data, except for loss caused by SI's negligence.
4. Data Processing Premises and Security.
4.1 Data Processing Premises. Client agrees to provide SI with
adequate premises, in good repair, to perform its responsibilities under
this Agreement (hereinafter the "Data Center") and to provide data
processing facilities to Bankers Trust, Inc. and its correspondents (up to
1350 square feet for programmers and CSR's). Without limiting the
generality of the foregoing, Client agrees to supply water, sewer, heat,
lights, telephone lines and equipment, air conditioning, electricity
(including, if desired by Client, an uninterruptable power system, battery
backup and backup generator capacity) and daily janitorial services. SI is
not responsible for any injury or damage to property or persons which
occurs in or around the data center unless it is caused by the negligent or
willful misconduct of SI. Client will provide telephone instruments and
telephone service for SI to communicate with the employees of Client,
Client's service bureau customers, if any, and as required by SI to operate
the Data Center. These instruments and service may be part of a Client
system used by Client personnel.
4.2 Security Standards. SI will adhere to such security standards
with respect to Client's data as may reasonably be imposed by Client,
including prehiring personnel investigative procedures and discharge of
personnel. Client will pay the costs for any modifications or additions to
the data center which are required by such security standards. Client will
reimburse SI for actual costs incurred if adherence to security standards
requested or required by Client increases SI's costs of operation.
5. Software.
Effective on the Expiration Date (or the earlier Termination Date if this
Agreement is terminated by Client pursuant to the provisions of
Section 9.2), SI will grant and convey to Client and Client will accept a
license to use SI's proprietary application systems ("Software") listed in
Exhibit A, under the terms and conditions set forth in Exhibit G. However,
such software license shall be effective for only that Software delivered
to Client during the term of this Agreement. Client shall be entitled to
obtain other SI-developed software programs upon the execution of a
mutually acceptable license agreement.
5.1 Additional Licensed Programs. The license contemplated by this
Section 5 shall also apply to all SI-developed program modifications,
enhancements, new systems or major subsystems installed for Client's
benefit pursuant to this Agreement. SI will furnish Client, upon request,
a current list of all Software systems and subsystems developed and made
available by SI. SI will give Client ninety (90) days' notice prior to
eliminating updates for a particular system version of any SI-developed
program.
5.2 Software Warranty. Each of the warranties set forth in
Exhibit G, as well as the patent and trademark indemnity provisions of
Exhibit G, shall apply to the Software, and all enhancements, modifications
or changes thereto, furnished or used pursuant to this Agreement.
5.3 User Manuals. Prior to the installation of each Software system,
SI will deliver to Client two copies of the applicable User Manuals, and
thereafter, two copies of standard updates thereto. Client is responsible
for the initial personalization and for the maintenance, reproduction and
distribution of User Manuals. SI hereby consents to the reproduction of
User Manuals by Client solely for the internal use of Client in accordance
with this Agreement.
5.4 Third Party Software. SI will use all computer programs acquired
by Client from third parties or developed by Client without the assistance
of SI exclusively to process Client's data. Additional use of such
programs by SI shall require the written approval of Client. SI reserves
the right to review and/or test such programs, in advance of processing, to
assure compatibility with SI equipment and consistency with SI's processing
techniques. The Resident Staff (see Section 7.1) will provide support and
maintenance services with respect to such programs. Client may purchase
maintenance contracts
for such programs in its discretion. Client will indemnify SI and hold SI
harmless from any loss, claim, damage or expense, including reasonable
attorneys' fees, resulting from any action brought or claim made by any
third party claiming superior title or right to protection of proprietary
information in respect of any such programs. SI shall observe and abide by
all provisions relating to confidentiality and proprietary information
contained in the License Agreement covering third party software being used
by SI pursuant to this Section.
5.5 Installation of New Systems and Subsystems. SI will install
regulatory changes, updates, new systems and subsystems using the Resident
Staff. SI will present to Client the features of and estimated hours
required to install such systems or subsystems. Client, at its option, may
elect to install the new system or subsystem or to continue use of the then
installed SI-developed system. Client will make every reasonable effort to
install new releases of SI-developed systems as soon as possible after the
new releases are made available to the data center.
5.6 Modifications Requested by Client. If requested by Client, SI
agrees to modify the SI-developed programs installed for Client by SI.
Implementation of such Client-authorized modifications will be performed by
the Resident Staff. Client understands that modifications may require an
increase in the time of performance and/or the Resident Staff to
subsequently install SI-developed updates, new systems or subsystems.
Client will endeavor to minimize the need for such modifications by
standardizing functions within holding company banks and making more
effective use of standard software functions.
5.7 Regulatory Reporting Requirements. During the term of this
Agreement, SI agrees to modify those SI-developed programs installed for
Client so that such programs will comply with the mandatory data processing
output requirements specified by federal regulatory authorities applicable
to Client. Program modifications necessary to meet state and local
regulatory requirements will be provided at Client's request by the
Resident Staff. Client agrees to make SI aware of any local or state
regulatory requirements not included in the requirements established by
federal regulatory authorities.
6. Education.
SI will make available to Client personnel, its standard application
software training courses, which are generally held in Little Rock,
Arkansas, in
accordance with SI's Education and Training Department schedule, a current
copy of which will be provided to Client upon request. Client personnel
may attend such courses, and any other standard courses generally offered
by SI to its other customers, upon payment of SI's then current published
course fee, subject to normal space availability requirements and
compliance with SI's standard registration and enrollment deadlines and
procedures. Client will pay all of its travel and lodging expenses while
attending SI courses, whether included in Exhibit A or not.
7. Staffing; Computer Use.
7.1 Resident Technical Staff. SI will provide, the staffing level of
technical and analyst personnel set forth in Section 5 of Exhibit C (the
"Resident Staff"). Subject to a reasonable time for replacements in the
event of resignations or terminations, SI will maintain such staffing
levels throughout the term of this Agreement. Duties of the Resident Staff
shall include, but are not limited to, maintaining the systems reflected in
Exhibit A, installing program updates, installing new systems and
subsystems, programming resulting from regulatory changes, user interface,
communication and customer service, systems programming, attending
education classes, Client meetings and research meetings, as well as
Client-requested program modifications and general programming duties.
(a) Project Control - The Resident Staff will use a project management
system for Client projects, and SI will provide Client with output from
such system as frequently as weekly.
(b) Priorities - Client shall have the right to establish all programming
and project priorities. Changes in priorities, however, which require
reassignment of SI Resident Staff to other responsibilities may result in
an enlargement of SI's time to complete certain tasks hereunder.
(c) Resource Change Procedure - At Client's written request, SI will
increase or decrease the Resident Staff, as long as the staffing level is
not less than the minimum number set forth in Exhibit C. SI will promptly
respond to Client's request with a proposed fee schedule adjustment which
shall be reasonable in light of the related costs of salaries, recruiting,
relocation, severance (up to 90 days), and employee benefits which are
affected thereby, subject to provisions of Exhibit C, Section 5.2.
Quotations for increases or decreases in the Resident Staff will be in
minimum increments of one person for a minimum term
of one year. SI will have up to 120 days to implement agreed changes in
the Resident Staff. If a Resident Staff position is vacated for any reason
other than a Client request as described in this Section 7.1(c) and remains
vacant for more than 120 days, SI shall give Client credit for the salary
and benefits (up to 19% of salary) beginning in the fourth month of the
vacancy. Such credit shall continue until the position is no longer
vacant.
(d) Temporary Non-Resident Personnel - If Client does not wish to re-order
priorities to permit the Resident Staff to perform additional services, or
to direct SI to increase the Resident Staff, Client may request SI to
provide additional non-resident personnel on temporary basis and SI will
provide such non-resident personnel on an as-available basis. SI will
promptly respond with a quotation for such non-resident personnel in
accordance with Section 6 of Exhibit C. If Client wishes to utilize the SI
personnel services quoted, Client will notify SI in writing, authorizing SI
to provide such services.
7.2 Special Computer Use. Client may use any SI computer time which
is available in the Data Center, without additional charge, for the
exclusive purpose of the performance of non-repetitive services requested
by Client or for use with regard to audit functions, provided that Client's
requests for SI to provide such non-repetitive services do not interfere
with SI's responsibilities under this Agreement. In conjunction with such
non-repetitive computer usage, SI will provide a computer operator and
Client will pay SI for related overtime, if any, incurred by such computer
operator.
8. Time of Performance.
The parties agree that timely and accurate submission of input and output
is essential to satisfactory performance under this Agreement. SI's time
of performance shall be enlarged, if and to the extent reasonably
necessary, in the event that: (a) Client fails to submit input data in the
prescribed form or in accordance with the schedules set forth in Exhibit D,
(b) an act of God, malfunction of any equipment which has been properly
maintained and serviced or other cause beyond the control of SI prevents
timely data processing hereunder, (c) special requests by Client or any
governmental agency authorized to regulate or supervise Client impact SI's
normal processing schedule; or (d) if Client fails to provide any
equipment, software, premises or performance called for by this Agreement,
and the same is necessary for SI's performance hereunder. SI agrees to
propose for evaluation and selection by Client a method by which it can
most effectively comply with any such request. SI will notify Client of
the estimated impact on its processing schedule, if any. In the event of
an error in processing Client's data, SI promptly will correct such error.
Such correction of error shall be without charge to Client unless caused
by the nature of the data submitted by Client or caused by software
provided to SI by Client, and only if additional costs are incurred by SI.
Client carefully will review and inspect all reports prepared by SI, to
balance promptly to the appropriate control totals and within a reasonable
time after any error or out-of-balance control totals should be detectable,
Client agrees to promptly notify SI of any erroneous processing. If Client
fails to so notify SI, it shall be deemed to have waived its rights in
respect of such error and to have assumed all risks in respect thereof.
9. Performance Standards and Penalties.
9.1 Performance Benchmarks. The parties agree that timely and
accurate submission of input and output is essential to satisfactory
performance under this Agreement. The parties acknowledge that the
following is a list of acceptable time performance benchmarks. In the
event any performance is suspected or deemed unacceptable, Client or SI
shall mutually endeavor to research the cause of and initiate action for
correction as soon as practical.
9.2 On-Time Delivery - Output to Client. SI agrees to exercise
diligence to maintain a monthly average of 97.5% on-time delivery of
Client's output reports. SI agrees to submit a written report to Client on
monthly basis with the results of the previous month's performance.
9.3 On-Time Delivery - Input from Client. Client agrees to exercise
diligence to maintain a monthly average of 97% on-time delivery Client's
input data. SI agrees to submit a written report to Client on a monthly
basis with the results of the previous month's performance.
9.4 On-Line Uptime. SI agrees to exercise diligence to maintain a
monthly average of 98.5% on-line uptime, exclusive of scheduled
preventative maintenance, as measured at the SI host computer using SI's
on-line software. SI agrees to submit a written report to Client on a
montly basis with the results of the previous month's performance.
9.5 On-Line Response Time. SI and Client acknowledge the high relative
importance of maintaining mutually acceptable on-line response time
for users of Client's on-line terminals. SI and Client agree that such on-
line response time (herein defined as the elapsed time between the time
inquiries and "entered" at the terminal and the time a related response is
"received" by the terminal) can be detrimentally affected by factors or
circumstances beyond the control of either SI or Client, and that Client
retains responsibility for final decisions regarding the use of line
speeds, modems, terminal control units, third party on-line software, and
other factors which may materially affect response times. SI will endeavor
to maintain an average on-line response time not to exceed five (5) seconds
per on-line inquiry and 99% of the responses not to exceed ten (10)
seconds. Average response time will be measured at the terminal location
by Client, or by SI at the request of the Client. ▇▇▇▇ or other ad hoc
file transfers are not subject to this response time benchmark. Down time
shall not be considered in measuring on-line response time.
In addition to the following, SI agrees to monitor the "host turn-around"
time (defined herein as the elapsed time between the time an inquiry is
received at the host computer and the time a related response is sent by
the host computer), and will endeavor to maintain a monthly average "host
turn-around time" of less than one (1) second. Such measurement will be
reported to Client monthly.
In the event that either "on-line response time" or "host turn-around time"
is suspected or deemed to be unacceptable to either Client or SI, then
Client and SI shall mutually endeavor to research the cause for such
deficiency, including the securing of assitance from Client's
communications carriers and communications equipment vendors.
9.6 Remedies. In the event that SI fails to meet the performance
benchmarks of 98.5% for on-line up-time set out in Section 9.4 and 97.5%
for on-time delivery of output reports as set out in Section 9.1 in any
three (3) consecutive months, Client shall have the option to give written
notice to SI specifying such failure, within thirty (30) days after the end
of the third month. If, after receipt of such notice, SI then fails to
meet the standards described above for any three months in the next twelve
(12) months after receipt of such notice, then Client shall have the option
to terminate this Agreement upon ninety (90) days written notice.
9.7 Force Majeure. All performance benchmarks calculated hereunder
shall be adjusted as appropriate if such benchmarks are not met because of
causes beyone the control of SI.
9.8 Exclusive Remedy. The parties agree that remedies provided in
this Section are the exclusive remedies for failure to meet performance
standards established herein.
10. Termination.
In addition to the right to terminate under Section 9.6 above, this
Agreement may be terminated prior to the Expiration Date, as follows:
10.1 Right to Terminate. In addition to any other rights which
either party may have in law or equity, either SI or Client may terminate
this Agreement if the defaulting party fails to cure any default hereunder
within thirty (30) days of written notice from the other party, specifying
the nature and extent of any such default. Termination of this Agreement
shall not relieve either party of any liability for any breach of this
Agreement prior to the Effective Date of such termination.
10.2 Method of Termination. Exercise of the right to terminate under
this Section must be accomplished by specifying in such written notice to
the defaulting party, the nature and extent of such default and fixing a
date, on the last day of a month, not less than 180 days following the date
of receipt of such notice, for cessation of services hereunder (the
"Termination Date").
10.3 Data, Systems and Programs. If this Agreement expires, or if
Client terminates by virtue of SI's default, all licensed systems in
machine readable form and their related program source and object listings,
documentation, instructions or manuals used to process data for Client,
shall remain subject to Exhibit G. In addition, upon Client's request, SI
agrees to provide to Client copies of Client's data files, records and
programs on magnetic media.
10.4 Early Termination. Client may terminate the Agreement, effective
on or after two years from the Effective Date of the Agreement, upon
satisfaction of each of the following conditions: (a) Client shall have
been acquired (as defined herein); (b) within six months after it is
acquired Client shall have notified SI in writing of its intention to
terminate with such notice providing for a Termination Date not less than
twelve (12) months thereafter; and (c) Client shall have paid SI a fee,
which shall accompany the foregoing termination notice, equal to twenty
percent (20%) of the sum of the fees payable pursuant to this Agreement in
respect of the period following the early Termination Date reflected in the
foregoing notice, through and
including the Expiration Date, with such amount discounted to present value
using a discount rate of eight percent (8%) per annum. This fee shall also
include termination of the Disaster Recovery Agreement (see Exhibit H).
Client and SI agree that this fee may be subject to negotiation if special
circumstances exist at the time of termination.
11. Transitional Cooperation.
After notice of termination and prior to the Termination Date, or for six
months prior to the Expiration Date, SI agrees that:
11.1 Offer of Employment. Client may offer employment to SI's data
center employees, except for the account manager.
11.2 Transition. SI will give full cooperation and support to Client
to assure an orderly and efficient transition to whatever method of
computer processing it may select.
11.3 Equipment. If Client wishes to utilize equipment owned or leased
by SI and installed in the data center, SI will not withdraw any such
equipment without first offering to Client, on a right of first refusal
basis, the right to purchase, or sublease such equipment. With respect to
equipment leased by SI, SI will allow (if and to the extent permitted by
the underlying lease) Client to sublease such equipment from SI at the
exact terms, conditions and costs of the lease then in effect. In
addition, Client may purchase at the Expiration Date or Termination Date,
as applicable, all but not less than all of the equipment owned by SI and
used in the data center, at a price equal to the sum of its net book value
or fair market value, whichever is the greater. Such offer will be made by
SI at least ninety (90) days and accepted or rejected at least sixty (60)
days prior to the Termination Date. Client may, at its option, negotiate
directly with any of the owners of leased equipment, to establish its
direct contractual relationship for equipment, and Client agrees to act
promptly in this regard.
11.4 Additional Support. Client shall have the option, exercisable
within ninety (90) days of delivery of a termination notice by either
party, to request up to 90 days of additional technical support from SI
subsequent to the Termination Date. Client will pay for such services at
SI's then current Hourly Rates.
12. Backup, Storage, Files and Programs.
12.1 Files and Programs. SI agrees to provide and maintain adequate
backup files on magnetic media of Client data and all programs utilized to
process Client's data.
12.2 Storage. Client agrees to provide off-site storage for backup
data files and programs. Client agrees to pick up the backup data files
and programs from the data center, deliver them to its off-site storage
location, store them, and return them to the data center pursuant to
mutually agreed upon procedures and schedules. If requested by Client, SI
shall provide Client with a quarterly listing of the names of data files
and programs for verification of the items in storage. Client is solely
responsible for the physical security of such files and programs while not
in SI's possession.
12.3 Disaster Recovery. SI's fees expressed herein include Disaster
Recovery services (see Exhibit H) at no additional charge. Such
arrangements are designed to deal with circumstances which are expected to
cause any substantial portion of the capabilities of the data center to be
unavailable for a consecutive period exceeding 72 hours. Emergency backup,
as referred to below, is designed only for difficulties of a shorter
duration.
12.4 Emergency Backup. SI will establish and maintain arrangements
for emergency backup data processing for SI's processing commitments to the
Client under this Agreement. SI's policies and procedures concerning
backup are reflected in SI's Operations Guide. SI does not warrant such
backup will be available at the desired time, in sufficient quantities, or
in a nearby location. SI will work diligently with Client in an emergency
to restore on-line communications, including but not limited to vendor and
supplier contact and identification of alternate sites in which emergency
computing equipment could be installed. Client will pay all expenses
incurred, if any, in connection with emergency processing backup needs.
Client will define in writing from time to time the procedures it wishes SI
to follow regarding the use of emergency backup, and Client shall have the
right, to be exercised in its discretion, to direct SI to utilize such
backup capability, provided Client's processing is behind schedule.
Notwithstanding the foregoing, SI shall not be liable for any failure,
delay or interruption in data processing services pursuant to this
Agreement, in whole or in part, due to acts of God, strikes, or threats
thereof or force majeure or due to causes beyond the control of SI. Upon
written notice from Client, SI agrees to conduct
appropriate tests of emergency backup arrangements and Client agrees to pay
for all travel, personnel and equipment expenses incurred in connection
with such testing. There shall be no additional personnel charge, however,
for participation in the testing of such backup arrangements by members of
the Resident Staff. Client acknowledges that emergency backup arrangements
hereunder do not constitute disaster recovery capabilities (see
Section 11.3).
13. Service Bureau Customers.
13.1 Client's Service Bureau Customers. Client may continue to
contract with its present service bureau customers, if any, both for
existing and new applications.
13.2 SI's Service Bureau Customers. SI may not process data for any
third parties, other than Bankers Trust and its correspondents, at the Data
Center without written permission from the Client. Such permission, if
granted, will be on an individual customer basis and will be valid for the
remainder of the contract term, for that customer. If SI processes any SI
service bureau customers in the Data Center other than Bankers Trust and
its correspondents, SI shall pay Client five percent (5%) of the additional
revenue received from such service bureau processing, effective for each
such customer with the first month following completion of the related
conversions.
14. Effective Planning and Communication.
14.1 Steering Committee. SI and Client agree that effective planning
and communication are necessary to provide overall direction for Client's
data processing, and that each will work to promote a free and open
exchange of information between SI personnel, Client senior management and
Client user departments. Members of SI's Data Center management and the
Resident Staff may participate actively with Client's management and users
in making and implementing day-to-day plans for Client's data processing.
In addition, a joint data processing steering committee will be established
to facilitate such planning and to encourage a periodic review of
priorities and long-term objectives. SI's account manager and programming
manager shall be non-voting members of such committee. In addition, if
requested by Client, SI's account manager will serve as chairman of the
data processing steering committee, and will solicit input from the other
members for appropriate agenda items. SI will maintain and distribute
copies of minutes of meetings of the data processing steering committee.
Client personnel who shall be members of such
committee shall include such senior management personnel as Client deems
appropriate from time to time. The data processing steering committee
shall meet regularly (initially, once per month).
14.2 Audit Conference. SI will cooperate fully with Client or its
designee in connection with Client's audit functions or with regard to
examinations by regulatory authorities. Client acknowledges that SI is not
responsible for providing audit services or for auditing Client's records
or data. Following any audit or examination, Client will conduct (in the
case of an internal audit), or instruct its external auditors or examiners
to conduct an exit conference with SI and, at such time, and as soon as
available thereafter, to provide SI with a copy of the applicable portions
of each report regarding SI or SI's services (whether draft or final)
prepared as a result of such audit or examination. Client also agrees to
provide and to instruct its external auditors to provide SI, a copy of the
portions of each written report containing comments concerning SI or the
services performed by SI pursuant to this Agreement.
14.3 Annual Executive Review. At least once during each contract year
of this Agreement, the parties will engage in an Executive Review. Such
Executive Review shall be held between the Chief Executive Officers or
Presidents of each party and other senior management personnel of each
party as designated by the respective Chief Executive Officers or
Presidents. Such Executive Review shall be held at a site which is
mutually agreeable or may be conducted telephonically, by teleconference or
by any means which is mutually agreeable. Each party will bear all its own
costs associated with such Executive Review. The parties shall exchange
agenda items for such review and each item shall be thoroughly discussed.
Such agenda items shall include, but not necessarily be limited to,
performance of the parties during the current year, plans and directions of
the parties during the upcoming year, technological and other changes which
may impact the banking or data processing industries or other forces within
the respective industries which will affect the performance of the
Agreement by either party.
15. Payment and Billing.
Client agrees to pay SI for the services performed hereunder in accordance
with the fees set forth in this Agreement, pursuant to invoices prepared
and delivered to Client. All processing fees shall be payable on the first
day of each month, for services to be rendered during that month except for
Additional Volume Fees specified in Section 3.2 of Exhibit C,
which shall be reflected in the first monthly invoice after the relevant
usage data is available and payable by Client promptly following receipt
thereof.
16. No Interference with Contractual Relationship.
Client warrants that, as of the date hereof, it is not subject to any
contractual obligation that would prevent Client from entering into this
Agreement, and that SI's offer to provide such services in no way caused or
induced Client to breach any contractual obligation.
17. No Waiver of Default.
The failure of either party to exercise any right of termination hereunder
shall not constitute a waiver of the rights granted herein with respect to
any subsequent default.
18. Processing Priorities.
To comply with the requests of applicable bank regulatory authorities, SI
agrees that Client's processing will have priority over all other
processing in the Data Center. SI agrees that processing for financial
institutions shall have priority over processing for non-financial
institutions, if any. In addition, if any emergency requires a change in
the processing schedule set forth in Exhibit D, SI and Client agree to
negotiate in good faith to adjust the processing schedule and related
priorities in light of then prevailing circumstances.
19. Mergers and Acquisitions.
Upon written request by Client, SI will process additional data resulting
from any merger or acquisition involving either Client or any of its
service bureau customers; subject to Client's payment of additional volume
fees reflected in Section 3 of Exhibit C, and subject to agreement on the
fees, if any, applicable to related conversion and testing services.
Client will notify SI of any such proposed merger or acquisition as soon as
reasonably practicable.
20. Entire Agreement.
This Agreement and the exhibits hereto contain the entire agreement of the
parties and supersedes all prior agreements whether written or oral with
respect to the subject matter hereof. Expiration or termination of any
part of this Agreement shall terminate the entire Agreement except
for any portion hereof which expressly remains in force and in effect
notwithstanding such termination or expiration. Modification or amendment
of this Agreement or any part thereof may be made only by written
instrument executed by both parties.
21. Assignment.
Neither party hereto shall assign, subcontract, or otherwise convey or
delegate its rights or duties hereunder to any other party without the
prior written consent of the other party to this Agreement, which consent
shall provide that it is subject to all the terms and conditions of this
Agreement. Subject to the provisions of Exhibit G, no such consent shall
be required in the event of a merger, consolidation, sale of substantially
all of the assets, or any other change of control of either party hereto,
in which event, this Agreement shall apply to, inure to the benefit of, and
be binding upon the parties hereto and upon their respective successors in
interest.
22. Confidential Agreement.
This Agreement is a confidential agreement between SI and Client. In no
event may this Agreement be reproduced or copies shown to any third parties
by either Client or SI without the prior written consent of the other
party, except as may be necessary by reason of legal, accounting or
regulatory requirements beyond the reasonable control of SI or Client, as
the case may be, in which event SI and Client agree to exercise diligence
in limiting such disclosure to the minimum necessary under the particular
circumstances.
23. Taxes.
Client will pay directly or reimburse SI for all sales, use or excise
taxes, however designated, levied or based, on amounts payable pursuant to
this Agreement, including state and local privilege or excise taxes based
on gross revenues under this Agreement or taxes on services rendered or
personal property taxes on the systems licensed hereunder. Client shall
not be responsible for any taxes levied on the personal property or net
income of SI. Notwithstanding the foregoing, if taxes not currently in
effect are imposed upon Client which would not have been applicable to
Client in the absence of this Agreement, the foregoing provision shall not
be deemed to supersede Client's right, if any, to rescind the Agreement on
the basis that it has thereby become so economically burdensome as to alter
the essential nature of the Agreement.
24. Independent Contractor.
It is agreed that SI is an independent contractor and that:
24.1 Client Supervisory Powers. Client has no power to supervise,
give directions or otherwise regulate SI's operations or its employees,
except as herein provided for security of Client's data and detection of
errors in processing.
24.2 SI's Employees. Persons who process Client's data are employees
of SI and SI shall be solely responsible for payment of compensation to
such personnel and for any injury to them in the course of their
employment. SI shall assume full responsibility for payment of all
federal, state and local taxes or contributions imposed or required under
unemployment insurance, social security and income tax laws with respect to
such persons.
24.3 SI as an Agent. SI is not an agent of Client and has no
authority to represent Client as to any matters, except as authorized
herein.
24.4 Workers Compensation. Without limiting the generality of the
foregoing, SI agrees to maintain, throughout the term of this Agreement,
applicable statutory Workers' Compensation insurance with an insurance
company authorized to write such insurance in Iowa covering each employee
who shall perform any service hereunder. SI shall also require that any
sub-contractor engaged by SI to provide services hereunder (a "Sub-
contractor") shall also provide applicable statutory Workers' Compensation
insurance for its employees. SI also agrees to maintain, throughout the
term of this Agreement, employer's liability insurance with a limit of
$100,000, with an insurance company authorized to write such insurance in
Iowa, and SI shall require each Sub-contractor to maintain such insurance
on its employees.
25. Client and SI Employees.
Except as specifically set forth in Section 10, above, both Client and SI
agree not to offer employment to any employee of the other without the
prior written consent of the other.
26. Previous Liabilities.
The parties hereto agree to indemnify the other and hold the other harmless
against any loss (including attorney's fees and expenses) arising
out of any claims or lawsuits filed or subsequently filed as a result of
the acts of the other party which occurred prior to the Effective Date of
this Agreement.
27. Notices.
All notices, requests and demands, other than routine operational
communications under this Agreement, shall be in writing and shall be
deemed to have been duly given when deposited in the United States mail,
registered or certified postage prepaid, and addressed to the other party
at the address first shown above and to the attention of the president of
said party. Notice of changes of address, if any, shall be given in like
manner.
28. Covenant of Good Faith.
SI and Client agree that, in their respective dealings arising out of or
related to this Agreement, they shall act fairly and in good faith.
29. Limitation of Liability.
If either party shall breach any covenant, agreement or undertaking
required of it by this Agreement, the parties agree that the liability of
the breaching party shall be limited to direct damages caused by said
breach, and shall not include any special, indirect or consequential
damages.
30. Insurance.
A schedule of SI's current insurance coverage has been furnished to Client
prior to the Effective Date of this Agreement and is attached hereto as
Exhibit I.
31. Section Titles.
Section titles as to the subject matter of particular sections herein are
for convenience only and are in no way to be construed as part of this
Agreement or as a limitation of the scope of the particular sections to
which they refer.
32. Counterparts.
This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original, but all of which shall constitute one and the
same instrument.
33. Audited Financial Statements.
Annually, SI will provide to Client a copy of SI's annual financial
statements which may be on a consolidated basis.
34. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Iowa.
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned
officers, thereunto duly authorized, on the 2nd day of January, 1992.
SYSTEMATICS FINANCIAL ▇▇▇▇▇▇▇ INFORMATION
SERVICES, INC. SYSTEMS, INC.
By: /s/ By: /s/
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name:-▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice Title:-SVP/Marketing & Technology
President
Date: 1/2/92 Date: 1/2/92
Client: ▇▇▇▇▇▇▇ Information Systems, Inc.
Effective Date: December 1, 1991
EXHIBIT "A"
APPLICATION SYSTEMS
1. The following systems currently are installed at the Data Center and
are being used to process Client's data:
1.1 SYSTEMATICS
IMPACS
Savings/Time
Financial Management System
Accounts Payable
Real Estate Loans
Commercial Loans
Installment Credit
Central Information File
Item Reconciliation
▇▇▇▇
Transaction System
Tax System
Warehouse Window Transactions
On-Line Collections
Inter-System Transfer
1.2 NON-SYSTEMATICS
Voice Response (Syntellect)
E-Mail (▇▇▇▇▇▇▇▇▇)
Platform Automation (Branch Banker)
Atragen
Safe Deposit Boxes
Optical Disk (Pro-Access)
▇▇▇▇▇▇▇ Systems Compliance (Comply/CTR) System
2. Client may use any SI-developed application system to process Client
data. Additional cost may be involved in the installation and/ or use of
these applications. Client will not pay additional license fees to use
such software.
Client: ▇▇▇▇▇▇▇ Information Systems, Inc.
Effective Date: December 1, 1991
EXHIBIT "B"
REPORTS
1. Current Reports.
The reports or output from Client's present systems will be produced by SI
during the term of this Agreement, unless such system(s) are replaced in
accordance with the terms of this Agreement or by mutual agreement between
the parties.
2. SI Reports.
Client may select from among the reports available for each of the
application systems listed in Exhibit A, as set forth in the standard SI
user documentation thereof.
3. Additional Reports.
SI will add or delete from either the SI or current reports at Client's
request, or to change the frequency of their preparation. If the
cumulative effect of changes in requested reports requires personnel and/or
computer equipment in excess of that required without such changes, SI
agrees to notify Client and prepare a price quotation, based upon the costs
of such additional computer equipment. Upon receipt of authorization from
Client in writing, SI will immediately proceed to acquire such additional
personnel and/or equipment and prepare and deliver all such reports.
Client: ▇▇▇▇▇▇▇ Information Systems, Inc.
Effective Date: December 1, 1991
EXHIBIT "C"
CHARGES
1. Fee Schedule.
Client will pay SI, a minimum fee of $10,650,300.00 payable in monthly
installments as set forth in the following table:
Applicable Period Amount of Monthly Payment
Months 1 - 12 $181,091
Months 13 - 24 $179,280
Months 25 - 36 $177,487
Months 37 - 48 $175,712
Months 49 - 60 $173,955
2. Additional Responsibilities of the Parties.
Except as otherwise provided, Client and/or its service bureau customer(s)
are responsible for the operation of any of its data processing facilities
other than the Data Center. Such facilities are hereinafter termed
"remote". Client and SI agree to provide or perform their respective
responsibilities as indicated in Section 2.1 through 2.4 below and
responsibilities of Client's service bureau customer(s) shall be indicated
as responsibilities of Client.
*This information is considered confidential and has been separately filed
with the Commission
RESPONSIBILITY
FUNCTION CLIENT SI
2.1 Input Processing.
Key entry of input (other than MICR) X ___
Key entry Equipment and maintenance X ___
(other than MICR)
Key entry of MICR rejects X ___
Key entry equipment and maintenance X ___
for MICR rejects
MICR entry computer operation X ___
MICR reader/sorter operation X ___
MICR entry reconciliation X ___
MICR reject reconciliation X ___
MICR "junk letter" key entry X ___
Key entry or encoding of MICR input X ___
Equipment and maintenance for key entry X ___
or encoding of MICR input
Microfilming MICR input X ___
Equipment and maintenance for X ___
microfilming MICR input
Supplies and development costs for X ___
microfilming MICR input
MICR reader/sorter equipment and maintenance X ___
MICR sorter vendor usage fees X ___
Personal computers used by other than SI X ___
Remote MICR capture/printer operations X ___
Remote MICR capture/printer equipment and X ___
maintenance
In-line microfilm equipment and operation X ___
2.2 Output Processing.
MICR transit item end point separation X ___
MICR transit cash letter preparation X ___
MICR "on us" fine sort by account number X ___
Bursting ___ X
Bursting equipment and maintenance ___ X
Decollation ___ X
Decollation equipment and maintenance ___ X
Check signing X ___
Check signing equipment and maintenance X ___
RESPONSIBILITY
FUNCTION CLIENT SI
Reports separation by bank ___ X
Delivery to courier ___ X
Remote printing equipment and maintenance X ___
Tracking inventories of paper stock and forms ___ X
2.3 Non-Mainframe Software.
Except as specifically set forth herein, Client will provide and maintain
all non-mainframe software. Where SI provides any such software, it is
listed above in Exhibit A and the following provisions shall apply:
Payment of related license fees X ___
Payment of maintenance and enhancement fees X ___
Modifications necessary for interface with X ___
SI software
2.4 Telecommunications Network Control. SI agrees to: (a) accept reports
of network problems and coorindate with all parties involved (including
vendors) to obtain a resolution to network problems; (b) work with and
coordinate between Client personnel and other data center personnel toward
operation of the on-line network to meet reasonable Client needs; and
(c) work with and coordinate between Client personnel and other data center
personnel in establishing additions and/or making changes to the network.
If Client elects to acquire any equipment or software for on-line network
monitoring or problem resolution,Client agrees to pay the costs thereof.
SI will, from time to time, recommend to Client equipment and software for
network monitoring.
3. Additional Volume Fees.
The fees expressed in Section 1 of Exhibit C are for processing the
applications and base volumes set forth below. Client will pay SI for
additional volumes of work processed in accordance with this Section 3.
Increased volume may result from internal growth, mergers or acquisitions
or a combination thereof.
3.1 Definitions.
As used herein, the term "Core Accounts" shall mean the number of accounts
on the master file at month-end with respect to the applications marked
with an asterisk (*) in Section 3.2 of this Exhibit C.
3.2 Applications Processed and Core Accounts.
The following applications will be processed by SI for the fees set forth
in this Exhibit C:
Core Applications
* IMPACS
* Demand deposit accounting
* Overdraft checking
* SAVINGS/TIME DEPOSIT
*Savings - Regular
*Savings - Golden
*Christmas Club
*Certificates of deposit
*▇▇▇
* INSTALLMENT CREDIT
* COMMERCIAL LOANS (notes)
* COMMERCIAL LOAN (Customers)
* REAL ESTATE (mortgage loan notes)
* FMS (general ledger)
Other Applications
Tax System
Warehouse System
On-Line Collections
Item Reconciliation
Inter-System Transfer
CIF
▇▇▇▇
Transaction System (TS)
Voice Response
▇▇▇▇▇▇▇ Systems Compliance (Comply/CTR) Systems
SMART
Profitability
3.3 Base Volumes and Additional Volume Charges.
Client has advised SI that the volume of Core Accounts for Client and its
service bureau customers, if any, at November 1, 1991, was 266,097 Core
Accounts (the "Base Volume of Core Accounts").
If the sum of the Core Accounts for Client and its service bureau customers
exceeds 125% of the Base Volume of Core Accounts, Client will pay SI a
monthly amount equal to the product of the number of Core Accounts in
excess of 359,230, multiplied by $.21 per accounts.
Actual volumes of Core Accounts will be measured on the last day of each
month. If actual volume is less than base volume, no additional volume
charge will apply; no shortfall shall be cumulative; nor shall any credit
apply to any other charge under this Agreement.
Client may request SI to quote the incremental cost of processing
additional volumes from acquisitions and may, at its option, pay either the
incremental cost or .21 per account. Should an acquisition occur that
causes Core Accounts to increase more than fifty percent (50%), (i.e., more
than 399,146), SI and Client will promptly negotiate in good faith to
establish a revised Additional Volume Charge not to exceed $.21 per
account.
Additional volume charges do not cover fees or expenses, if any, which may
be applicable to conversions resulting from acquisitions by Client or its
service bureau customers. SI will provide conversion assistance related to
such acquisitions pursuant to Section 7 of the Agreement.
Volume reductions by Client shall not result in a reduction of fees below
the monthly fees set out in Section 1 of this Exhibit C; however, if
volumes are reduced to a level less than seventy-five percent (75%) of the
Base Volume of Core Accounts, SI and Client will negotiate in good faith to
establish a new base monthly fee.
In addition, Client-requested changes in the output schedule, in third-
party software or in copies made (laser printer, fiche, etc.) may require
personnel and/or equipment additions. If any such Client-requested change
is expected to have such an impact, SI
will advise Client in writing, and the parties will negotiate in good faith
a mutually agreeable additional charge.
4. DASD Capacity.
If Client wishes to make a material change in the length of data records or
in the amount or kinds of data available in on-line data files, SI will
provide a written quotation of the cost to Client of additional DASD
capacity to support such change(s). If approved by Client, SI will acquire
the additional DASD capacity and the appropriate adjustment will be made to
the fees reflected in Section 1 of this Exhibit C.
5. Resident Staff.
5.1 SI agrees to provide the following Resident Staff during the term
of this Agreement:
Resident Minimum
Programming
Dedicated to New Releases* 3.5 FTE 3.0 FTE
Discretionary** 2.5 FTE 0 FTE
Client Services 3 2
PC Support 2 0
* These resources will keep the SI application systems current to within
one release of the latest release.
** These resources will work on projects as directed by Client.
SI will also provide one additional programmer to Client at no cost to
Client until March 31, 1992.
5.2 Client shall receive a monthly billing credit of at least $11,618
if it elects to eliminate all PC support positions from the Resident Staff.
6. SI Hourly Rates.
The following hourly rates are currently in effect. The SI hourly rates
may be changed by SI upon written notice to Client not more often
than once during each twelve month period following the Effective Date.
SI's Hourly Rates for programming include all related computer time
required for program testing. Overtime rates are only applicable, if and
to the extent, SI will incur overtime expense. SI fees are computed by
multiplying the actual personnel hours extended on Client's project(s)
including any travel time to and from Client location(s). In addition,
Client agrees to reimburse SI for the actual expense of reasonable travel
and lodging expense, if any, related to hourly rate based services
requested by Client. SI will inform Client, in advance, if overtime or
travel and lodging expense is anticipated to be incurred.
Regular Overtime Minimum
Hourly Rate Hourly Rate Billable
Per Person Per Person Increment
Per Person
Programmer $90.00 N/A 4 Hours
Computer Operators $15.00 $22.50 N/A
In addition, Client will pay all reasonable travel and subsistence costs
incurred by SI's employees in performance of any such additional services.
7. Price Adjustment.
The parties acknowledge that SI's cost of providing services pursuant to
this Agreement are likely to increase, particularly in the areas of data
processing salaries and operating system maintenance. The fees and charges
reflected in this Agreement will be increased, but not decreased, based on
the effect of inflation. Effective with the monthly billing for the
thirteenth month and again annually thereafter, such fees will be adjusted
using a combination of the Consumer Price Index for All Urban Consumers -
Other Goods and Services (the "CPI") and the Employment Cost Index for
White Collar Workers (the "ECI"), both as published by the U.S. Department
of Labor, Bureau of Labor Statistics. The percentage increase in such fees
shall be equal to the sum of:
(a) 0.7 multiplied by the percentage increase in the ECI; and
(b) 0.3 multiplied by the percentage increase in the CPI.
The percentage increases in the ECI and in the CPI used in computing the
fees that are to become effective with the thirteenth month shall be the
respective percentage increases in those indices over the one-year period
ended July 30, 1992. The percentage increases in those indices used in
computing the fees that are to become effective in the subsequent annual
periods shall be the respective percentage increases in the indices over
the subsequent twelve month periods commencing with the ninth, twenty-
first, etc. contract months.
Method of Calculation of Increase in Monthly Fee
1. ECI Actual - ECI Base x 0.7 = ECI Percentage Increase
2. CPI Actual - CPI Base x 0.3 = CPI Percentage Increase
3. CPI Percentage Increase + ECI Percentage Increase =
Total Blended Increase (not less than zero)
4. (SI Montly Fees x. Total Blended Increase) + SI's Monthly
Fees = Adjusted Fee
Where:
ECI Actual = The ECI Index in effect on the date used to calculate the
increase (i.e., the ninth, twenty-first, twenty-seventh and each succeeding
12th month during the term of this Agreement)
ECI Base = The ECI Index in effect on December 1, 1991
CPI Actual and Base = See ECI definition above
SI's Monthly Fees = All fees payable hereunder
Adjusted Fees = SI's Monthly Fees to be paid during applicable twelve (12)
month period.
8. Non-Systematics Software.
8.1 At Client's request, SI will provide for use at the Data Center,
the ▇▇▇▇▇▇▇ Systems Compliance (Comply/CTR) Software System ("CTR").
Beginning at such time as the CTR System is provided, in addition to all
other fees and charges payable under the Agreement, Client shall pay to SI
a monthly maintenance fee
of $550.00 for providing and maintaining the CTR System. This monthly
maintenance fee of $550.00 will be divided equally among all institutions
subscribing to use the CTR System. For example, if five (5) institutions
are subscribing to use the CTR System, each institution would pay $110.00
monthly. If one institution subscribes to use the CTR System such
institution would pay $550.00 monthly. In addition, a monthly $135.00
usage fee will be due for each individual institution utilizing the CTR
System, regardless of the number of such institutions. Such monthly fee
shall be in addition to all other fees payable under the Agreement, shall
be reduced by one percent (1%) on the annual anniversary date of the
Agreement, and shall be adjusted in accordance with Section 7 of Exhibit C
of the Agreement.
8.2 SI shall provide and maintain the 24-line Infobot/▇▇▇▇▇▇
Syntellect Voice Response System and Turnkey Voice Response Applications
("Voice Response System"). Client shall provide all necessary telephone
lines, modems or other defined communications devices to support the
operation of the Voice Response System. Client shall pay, in addition to
all other fees payable under this Agreement, a monthly fee of $2,348.00.
Such monthly fee shall in addition to all other fees payable under this
Agreement, shall be reduced by one percent (1%) on the annual anniversary
date of the Agreement and to $1,305 in month 61, and shall be adjusted in
accordance with Section 7 of Exhibit C to the Agreement. Upon the
expiration or termination of this Agreement, Client may purchase this
equipment subject to the provisions of Section 11.3 of the Agreement.
8.3 SI shall replace Client's existing microfiche archival system with
the INFO-SEARCH Report Storage and Information Retrieval System ("INFO-
SEARCH System") described below. Beginning the month after microfiche is
no longer produced by SI for the Client, SI shall credit Client's base
monthly fee payable under Section 1.1 of Exhibit C in the amount of
$6,311.00.
In consideration for providing, installing and maintaining the INFO-SEARCH
System, Client shall pay to SI a monthly fee of $7,377.00 payable
beginning the month after the installation of the INFO-SEARCH System. Such
monthly fee shall be in addition to all other fees payable under the
Agreement, reduced one percent (1%) on the annual anniversary date of the
Agreement, and shall be adjusted in accordance with Section 7 of Exhibit C
of the Agreement.
Client shall provide all necessary telephone lines, modems or other defined
communications devices to support the INFO-SEARCH System.
Upon expiration or termination of this Agreement, Client may purchase this
equipment subject to the provisions of Section 11.3 of the Agreement.
8.4 SI shall provide for use at the Data Center the Mobius-Infopac
software system. Beginning at such time as Infopac is provided, in
addition to all other fees and charges payable under the Agreement, Client
shall pay to SI a monthly fee of $1,350.00 for providing the software.
This fee will be reduced in month 61 to the then-applicable software
maintenance fee. Such monthly fee shall be in addition to all other fees
payable under the Agreement, shall be reduced by one percent (1%) on the
annual anniversary date of the Agreement, and shall be adjusted in
accordance with Section 7 of Exhibit C of the Agreement.
INFO-SEARCH System Configuration
Description Quantity
Gateway 2000 Personal Computer Two (2)
80386 Processor/33 Megahertz
4MB Memory
Math Coprocessor
300 Megabyte Disk Drive
1.2 Megabyte 5.25" Floppy Drive and/or
1.44 Megabyte 3.5" Floppy Drive
VGA Video Card w/132 Column Capability
VGA Monitor
MSDOS 3.3 Operating System w/Manuals
Formatted w/Disk Manager
Dot Matrix Printer Two (2)
M4 Tape Drive/6250 BPI/16 Bit Board One (1)
Fax Board - AT Compatible
(Internal 4800 Baud Modem) Two (2)
Optical Disk Drive (AT Bus/MCA PC)
(2 each stand-alone/LAN) Four (4)
FAX Board - MCA Compatible (LAN) Two (2)
Pro-Access Software License
(Stand-alone) Two (2)
Pro-Access Software License - LAN One (1)
PC Anywhere Remote Diagnostics Two (2)
Map Assist Optical Redirector One (1)
Client: ▇▇▇▇▇▇▇ Information Systems, Inc.
Effective Date: December 1, 1991
EXHIBIT "D"
REPORTING SCHEDULE
This Exhibit D will be completed prior to the Effective Date of this
Agreement. The delivery schedules for input and output in effect on the
execution date of this Agreement are set forth herein. This Exhibit D may
be changed from time to time, by mutual agreement of Client and SI.
1. Client Delivery Schedules
1.1 Client Input to SI.
Time Available
for SI Processing
Daily (Monday through Saturday)
Monetary Input
Inclearings 1:00 to 2:00 p.m. 100%
POD transmission completed by FHLB 11:30 p.m. 100%
Transmission completed from Originator
ACH Tape(s) 8:00 a.m., 3:00 p.m.
Non-Monetary Input
Payroll (Automated Transmission
from CDC/ADP) 5:00 p.m.
BCR Build/Update Entry 3:00 p.m.
ARM Entry 1:00 p.m.
CAPS Input 4:00 p.m.
1.2 SI Output to Client.
Daily (Monday through Friday) Time Available
for Client Pick-Up
All Application Reports 5:30 a.m. following business
day
Fine Sort, Cycle and Exception Files
(available to FHLB)
Transmission commences 3:00 a.m.
DDA Statements Noon following day
ACH Tape(s) 12:01 a.m. following day
Optical Support 8:00 a.m. - 5:00 p.m.
Weekly (Sat., Sun., Business Day of Week)
ITS Reports Tues. 5:00 a.m. following day
Monthly (EOM Business Day of Month)
Accounts Payable 1st business day following
Billing 1st business day following
Account Analysis 3rd business day following
DDA Statements 1:00 p.m. - 5:00 p.m. following business
day
Savings Statements 5:00 p.m. following business day
Office Reporting 2nd following business day
IL & RE EOM Jobs 2nd following business day
EFT End of Month 2nd following business day
Quarterly (EOQ Business Day of Quarter)
Savings Statements 5:00 p.m. following business day
Year-End
1099 - Int. Processing
(tape output) 2nd business day following EOY
Interest Registers/Notice 2nd business day following
EOY
General Ledger closing - by request
▇▇▇ Statements (2nd business day following EOY)
1.3 Client On-Line Availability.
Mon.-Fri. Saturdays Sundays Holidays
From To From To From To From To
Administrative* 7:30 6:30 7:30 3:30 11:00 4:00 7:30 6:30
a.m. p.m. a.m. p.m. a.m. p.m. a.m. p.m.
except New
Years
Teller Terminal
ATM 5:30 5:00 5:30 5:00 24 hours 5:30 5:00
a.m. a.m. a.m. a.m. a.m. a.m.
FMS Reports 9:30 6:30 9:30 3:30
a.m. p.m. a.m. p.m.
All other
reports 7:30 6:30 7:30 3:30
a.m. p.m. a.m. p.m.
1.4 Additional Schedules - Client.
*Available for Inquiries
Monday, Thursday until 8:00 p.m.
Tuesday, Wednesday until 7:00 p.m.
Friday until 7:30 p.m.
1.5 Batch Processing Update Frequency.
SI will do a batch update of Client's file five (5) times weekly, Monday
through Friday.
Client: ▇▇▇▇▇▇▇ Information Systems, Inc.
Effective Date: December 1, 1991
EXHIBIT "E"
EQUIPMENT LEASE
To be used only if SI leases equipment to Client
Client: ▇▇▇▇▇▇▇ Information Systems, Inc.
Effective Date: December 1, 1991
EXHIBIT "F"
CLIENT-FURNISHED EQUIPMENT AND SOFTWARE
Client will furnish to SI the equipment and software ("Equipment" and
"Software") described below under the following terms and conditions:
1. Term of Agreement.
The term of this Exhibit F is the same as the term of this Agreement.
2. Taxes.
Client will pay all taxes, however designated or levied or based on the
Equipment or Software or their use.
3. Risk of Loss; Replacement.
Except for loss or damage caused by the negligence or intentional
misconduct of SI, SI shall not be responsible for any loss or damage to the
Equipment or Software.
If any Equipment or Software furnished hereunder is damaged, destroyed or
malfunctions to the extent that the same cannot be repaired, or Client
elects not to so repair then, provided such damage or malfunction was not
caused by SI as set forth above, Client agrees to acquire and install, as
soon as reasonably practicable, comparable replacement Equipment or
Software.
4. Charges.
No charge shall be payable by SI for its use of the Equipment or Software.
Services provided under the Agreement by SI are acknowledged by Client to
be adequate consideration of Client's agreement to provide such Equipment
and Software.
5. Insurance.
Client is responsible for the cost of all fire, extended coverage and theft
insurance in an amount covering the Equipment.
6. Maintenance.
Client agrees to enter into and to keep in force during the term hereof, at
Client's sole cost and expense, standard maintenance agreements to keep the
Equipment in good working order, to make all necessary adjustments and
repairs thereto, and to pay all maintenance costs relative to the use of
the Equipment. Client also agrees to purchase software maintenance
agreements from the vendors of each item of Software listed below.
SOFTWARE SCHEDULE
The following is a list of the Software to be provided by Client to SI
pursuant to the Agreement and this Exhibit F. The Termination Date, if
any, represents the date after which Client is no longer obligated to
provide the same to SI.
Equipment
None
Software
Name and Description of Name of Software Termination Date
Software Owner
Paperless Entry
Processing Stockholder Systems 11/30/1996
Corporate Automated
Payment Stockholder Systems 11/30/1996
ListCat Plus ▇▇▇▇▇▇▇▇▇ Systems 11/30/1996
Source Program Compare ▇▇▇▇▇▇▇▇▇ Systems 11/30/1996
Client: ▇▇▇▇▇▇▇ Information Systems, Inc.
Effective Date: December 1, 1991
EXHIBIT "G"
SOFTWARE LICENSE AGREEMENT
1. Provision of Software.
1.1 SI agrees to license and furnish to Client the SI application
systems listed in Exhibit A to the Agreement if such systems are delivered
prior to the expiration or termination of the Agreement. Such application
systems are hereinafter referred to as the "Software".
2. Documentation.
2.1 For each item of Software, SI shall also deliver to Client a
complete set of standard operational instructions and documentation,
including, but not limited to, the Software source code in machine readable
form; a copy of SI's standard associated control statements used for
operation, development, maintenance and use of the source code, and any
other documentation which is provided by SI to its other similar customers.
Such documentation and other materials are hereinafter referred to as
"Documentation."
2.2 Subject to the provision of Section 4, below, SI agrees to deliver
to Client copies of any revisions, improvements, enhancements,
modifications and updates to the Documentation which are produced by SI.
2.3 Client may copy the Documentation provided hereunder in order to
satisfy its own internal requirements. If Client requests, SI agrees to
furnish additional copies to Client at SI's then standard fee for such
copies.
3. Term and Use Restrictions.
3.1 This is a perpetual license. Client acknowledges that the
licensed Software and all related Documentation constitute valuable assets
and trade secrets of SI and that all information with respect thereto is
confidential. The Software is licensed to Client only for use by Client
for itself, its subsidiaries and affiliates.
3.2 Client agrees to safeguard the licensed Software with at least the
same degree of care that it exercises with respect to its own confidential
and proprietary information, and shall take all reasonable precautions to
assure that its employees and representatives do not sell, lease, assign,
or otherwise transfer, disclose or make available, in whole or in part, the
licensed Software or Documentation thereof to any third party for any
reason (except for employees of Client, for auditing purposes by
independent certified public accountants, for complying with applicable
governmental laws, regulations or court orders or for the limited
disclosure to customers of Client of user manuals and similar information
which must be disclosed in connection with providing data processing
services by Client). With prior approval of SI, Client may make licensed
Software or Documentation available to any third party that has a valid
license to the same version of the Software, as provided by this Software
License Agreement. SI shall not arbitrarily deny such approval provided
Client has complied with all other provisions of this Software License
Agreement. In no event, however, shall any competitor of SI be furnished
with any information, directly or indirectly, concerning the Software or
the Documentation.
3.3 The licensed Software and all related Documentation and materials
may be used by Client and maintained at one location, only as set forth
below (the "Installation Site") and may not be used by Client or any other
person at any other location or facility; provided, however, that Client
may change the location where it uses the licensed Software upon prior
written notice to SI and delivery of a written certificate that all use of
the licensed Software shall be limited to such new location. The
Installation Site shall be as follows:
▇▇▇▇▇▇▇ Information Systems, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
3.4 All modifications to the licensed Software developed as a result
of joint efforts by SI and Client shall become the exclusive property
of SI, subject to all of the terms and conditions of this License
Agreement, including the right of Client to use such modifications in
accordance herewith and including the foregoing agreements of Client with
respect to disclosure of and/or access to such modifications.
Modifications to the licensed Software developed solely by Client without
the participation of SI shall be considered to be part of the Software for
purposes of determining Client's obligations under this Section 3;
provided, however, that Client shall have the exclusive right to use any
such modifications it may develop, and SI shall have no right to market
such modifications without Client's express written consent.
3.5 Client further acknowledges and agrees that, in the event of a
breach or threatened breach by Client of any provision of this Section 3,
SI will have no adequate remedy in money or damages and, accordingly, shall
be entitled to appropriate injunctive relief. However, no specification in
this License Agreement of a specific legal or equitable remedy shall be
construed as a waiver or prohibition against any other legal or equitable
remedies in the event of a breach of any provision of this Agreement.
3.6 SI retains title to the Software provided hereunder and does not
convey any rights or proprietary interest therein to Client, other than the
license as specified herein.
3.7 Upon the termination by SI of this License Agreement or any
licenses granted to Client hereunder, Client agrees to promptly cease using
and return to SI all software involved and Documentation related thereto
and all copies thereof. Such return shall also be accompanied by a written
certificate, signed by an appropriate executive officer of Client, to the
effect that all such Software, related Documentation and copies thereof
have been so returned to SI.
3.8 SI hereby acknowledges and agrees that Client shall have the right
to modify any of the Software provided to Client hereunder and may use and
combine such with other programs and/or material to form an updated work.
Such modifications to the licensed Software, either alone or in
combination, shall become part of the licensed Software and shall be
subject to all of the terms and conditions of this License Agreement,
including the right of Client to use such modifications in accordance
herewith and including the agreement of Client to limit the use of, the
disclosure of and/or access to, such modifications.
3.9 Client acknowledges that all PC-based Software ("Micro Software")
is released in object code only. The following additional provisions shall
be applicable to Micro Software:
(a) Client may copy the Micro Software and use it on multiple
microprocessors solely for the benefit of Client and Client's affiliates
including, but not limited to, Client's parent holding company, its
subsidiaries and affiliates. The documentation for the Micro Software may
be similarly copied and utilized. At Client's option, additional copies
may be made either by Client or by ordering the same from SI at SI's
standard rates.
(b) All other restrictions on use, copying or disclosure of the Software
licensed hereunder shall also apply to the Micro Software and its
documentation. In addition, Client may not provide data processing
services using the Micro Software to any person, firm, or corporation
(other than Client's affiliates and subsidiaries) without the prior written
consent of SI and the payment to SI of additional license fees.
(c) In consideration of the right to make and use the additional copies
granted in Section (a) above, Client agrees and acknowledges that all
support for end-users of the Micro Software will be supplied by Client's
personnel, and that SI is not responsible for providing any Micro Software
support services to end-users.
4. Enhancements.
Within ninety (90) days of its delivery of a termination notice, as
provided in the Agreement, or within ninety (90) days preceding the
Expiration Date, as set forth in the Agreement, Client may elect to
purchase program maintenance from SI for the licensed Software. All
updates, modifications and enhancements (the "Updates") to the Software, if
any, (once incorporated into any Software hereunder) shall be deemed to be
part of the license Software for all purposes hereunder. In the absence of
Client's purchase of program maintenance thereafter, SI shall not be
obligated to deliver Updates or related Documentation to Client. If Client
exercises this option, SI agrees to provide such maintenance and Client
agrees to pay SI its current software maintenance rate(s) then in effect
for such system(s).
5. Warranties.
5.1 SI warrants to Client that: (i) SI has the right to furnish the
Software, Documentation and other materials provided to Client hereunder
free of all liens, claims, encumbrances and other restrictions; (ii) Client
shall quietly and peacefully possess the Software, Documentation and other
materials provided to Client hereunder, subject to and in accordance with
the provisions of this License Agreement; and (iii) Client's use and
possession of the Software, Documentation and other materials provided to
Client hereunder will not be interrupted or otherwise disturbed by any
entity asserting a claim under or through SI.
5.2 SI warrants and represents that the licensed Software will
perform, on an appropriately configured IBM computer system, in the manner
described in the Documentation thereof.
5.3 EXCEPT AS PROVIDED HEREIN, ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.
6. General.
6.1 Taxes. Client agrees to pay all taxes levied by a duly
constituted taxing authority against or upon Client's use of the Software
or arising out of this License Agreement; exclusive, however, of taxes
based on SI's income, which taxes shall be paid by SI. Client agrees to
pay any tax for which it is responsible hereunder, which may be levied on
or assessed against Client directly, and, if any such tax is paid by SI, to
reimburse SI therefor, upon receipt by Client of proof of payment
reasonably acceptable to Client.
6.2 Patent and Copyright Infringement. SI agrees to defend and/or
handle, at its own expense, any claim or action brought by any third party
against Client for actual or alleged infringement of any patent, copyright
or similar property right (including, but not limited to, misappropriation
of trade secrets) based upon the Software or Documentation furnished
hereunder by SI. SI further agrees to indemnify and hold Client harmless
from and against any and all liabilities, losses, costs, damages, and
expenses (including reasonable attorneys' fees) associated with any such
claim or action incurred by Client.
(a) SI shall have the sole right to conduct the defense of any such claim
or action and all negotiations for its settlement or compromise, unless
otherwise mutually agreed to in writing between the parties hereto.
(b) SI agrees to give Client prompt written notice of any written threat,
warning or notice of any such claim or action against SI or any other use
or any supplier or components of the Software covered hereunder, which
could have an adverse impact on Client's use of same, provided SI knows of
such claim or action.
6.3 Limitation of Liability. If either party shall breach any
covenant, agreement or undertaking required of it by this Agreement, the
parties agree that the liability of the breaching party shall be limited to
direct damages caused by said breach, and shall not include any special,
indirect or consequential damages.
6.4 Material Breach. In the event of any material breach of the
Agreement or of this License Agreement by Client, SI may (reserving
cumulatively all other remedies and rights under this License Agreement in
law or in equity) terminate this License Agreement, in whole or in part, by
giving ninety (90) days' prior written notice thereof; provided, however,
that this License Agreement shall not terminate at the end of said ninety
day notice period if Client has substantially cured the breach of which it
has been notified prior to the expiration of said ninety (90) days. In the
event of such a termination by SI pursuant to this Section 6.4, Client will
promptly discontinue its use of the licensed Software and related
Documentation and shall return to SI all copies thereof in its possession
or control. Such return shall also be accompanied by a written
certificate, signed by an appropriate executive officer of Client, to the
effect that all such Software, related Documentation and copies thereof has
been so returned to SI. In addition, Client agrees that monetary damages
will not be sufficient to compensate SI in the event of any actual or
threatened breach by Client of any restriction on Client's use of the
licensed Software or Documentation provided in this License Agreement and
that, in such event, SI shall be entitled to injunctive and other equitable
relief which may be deemed necessary or appropriate by any court of
competent jurisdiction.
6.5 Notices. Any notices or other communications required or
permitted to be given or delivered under this License Agreement
shall be in writing (unless otherwise specifically provided herein) and
shall be sufficiently given if delivered personally or mailed by first-
class mail, postage prepaid,
If to Client: ▇▇▇▇▇▇▇ Information Systems, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to SI: Systematics Financial Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
or to such other address as either party may from time to time designate to
the other by written notice. Any such notice or other communication shall
be deemed to be given as of the date it is personally delivered or when
placed in the mails in the manner specified.
6.6 Advertising or Publicity. Neither party shall use the name of the
other in advertising or publicity releases without securing the prior
written consent of the other.
6.7 Assignment. This License Agreement shall be binding upon the
parties and their respective permitted successors and assigns. Neither
party may sell, assign, convey or transfer, by operation of law or
otherwise, any of its rights or obligations hereunder without the prior
written consent of the other party and any such attempted transfer shall be
void.
6.8 Governing Law; Jurisdiction and Venue. The validity of this
License Agreement, the construction and enforcement of its terms, and the
interpretation of the rights and duties of the parties shall be governed by
the laws of the State of Iowa. Client and SI hereby consent and agree that
jurisdiction and venue for any claim or cause of action arising under this
Agreement with respect to the validity, construction or enforcement hereof
shall be properly and exclusively in the state or federal courts located in
Des Moines, Iowa, and expressly waive any and all rights they may have or
which may hereafter arise to contest the propriety of such choice of
jurisdiction and venue.
6.9 Modification, Amendment, Supplement and Waiver. No modification,
amendment, supplement to or waiver of this License
Agreement or any of its provisions shall be binding upon the parties hereto
unless made in writing and duly signed by both parties or the party to be
charged, as appropriate under the circumstances. A failure or delay of
either party to this License Agreement to enforce at any time any of the
provisions hereof, or to exercise any option which is herein provided, or
to require at any time performance of any of the provisions hereof, shall
in no way be construed to be a waiver of such provision of this License
Agreement.
6.10 Severability. In the event any one or more of the provisions of
this License Agreement shall for any reason be held to be invalid, illegal
or unenforceable, the remaining provisions of this License Agreement shall
be unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a mutually acceptable provision, which being valid, legal and
enforceable, comes closest to the intention of the parties underlying the
invalid, illegal or unenforceable provision.
6.11 Headings. The headings in this License Agreement are for
purposes of reference only and shall not in any way limit or affect the
meaning or interpretation of any of the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this License Agreement
as of the day, month and year first above written, by the undersigned
officers thereunto duly authorized.
SYSTEMATICS FINANCIAL ▇▇▇▇▇▇▇ INFORMATION
SERVICES, INC. SYSTEMS, INC.
By: /s/ By: /s/
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name:-▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice Title:-SVP/Marketing & Technology
President
Date: 1/2/92 Date: 1/2/92
EXHIBIT H
DISASTER RECOVERY AGREEMENT
This is a Disaster Recovery Agreement (the "Agreement") made and entered
into contemporaneously with the Data Processing Agreement (the "FM
Agreement"), dated as of December 1, 1991, between Systematics Financial
Services, Inc., an Arkansas corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ (hereinafter "SI") and
▇▇▇▇▇▇▇ INFORMATION SYSTEMS, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(hereinafter "CLIENT").
WHEREAS, SI maintains a computer disaster recovery facility for use by
Subscribing Clients in the event of a Disaster (see definitions, below);
and
WHEREAS, CLIENT wishes to have access to such computer disaster recovery
facility in the event of a Disaster;
NOW THEREFORE, in consideration of the payments to be made and services to
be performed hereunder, the parties agree as follows:
1. Definitions. The terms and phrases listed below shall have the
indicated special meanings when used in this Agreement:
"Disaster Recovery Facility" - The Computer Equipment described in
Attachment 2 and located at SI corporate headquarters.
"Data Center" - CLIENT's IBM-based computer facility located at:
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
"Disaster" - Any interruption in the availability or accessibility of the
Data Center, resulting from causes beyond CLIENT's control and reasonably
expected to last more than seventy-two (72) continuous hours.
"Multiple Disaster" - Disasters experienced by two or more Subscribing
Clients at times when such Subscribing Clients would be entitled to use the
Disaster Recovery Facility at the same time.
"Shell Facility" - Preconditioned space suitable for the installation of
CLIENT's computer equipment, located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇.
"Subscribing Client" - Any person, firm or corporation which has entered
into a Disaster Recovery Agreement with SI for use of the Disaster Recovery
Facility.
2. Term.
The term of this Agreement shall begin on December 1, 1991 (the "Effective
Date") and shall be coterminous with the FM Agreement.
3. Disaster Recovery Facility.
3.10 Access. Upon declaration of a Disaster, CLIENT may use the
Disaster Recovery Facility under the appropriate class of service, upon at
least six hours' notice to SI, for a period of up to six (6) consecutive
weeks (the "Recovery Period"). Thereafter, continued use of the Disaster
Recovery Facility, may be permitted except that another Subscribing Client
who experiences a Disaster after CLIENT's Recovery Period shall be granted
priority access to and use of the facility.
3.20 SI Computer Equipment. SI will purchase and maintain in force
maintenance agreements for the equipment described in Attachment 2.
3.30 SI Computer Equipment Change. SI may change or relocate its IBM
compatible computer equipment configuration at any time upon sixty (60)
days prior written notice to CLIENT; provided, however, that no such notice
shall be required if any such change does not adversely affect the
usefulness to CLIENT of the changed configuration as a Disaster Recovery
Facility. If such a change results in the Disaster Recovery Facility
becoming materially unusable to CLIENT for disaster recovery, CLIENT may
terminate this Agreement in accordance with Paragraph 10 herein.
3.40 Multiple Disasters. In order to reduce the possibility of a
Multiple Disaster, SI will exercise due care and discretion in contracting
with new clients to avoid geographic concentrations that would unduly
increase exposure. When a new contract is contemplated that would result
in a perceived exposure due to a geographic concentration and/or client
size, SI will perform an analysis of said exposure for review by SI
management prior to execution of the proposed contract. In addition, no
agreement will be signed with a prospective client who is currently
experiencing a Disaster.
If a Multiple Disaster occurs, more than one Subscribing Client may be
granted access to the Disaster Recovery Facility. SI will exercise its
best efforts to coordinate the activities of these Subscribing Clients.
3.50 Computer Equipment Compatibility Assurance. CLIENT will appoint
a Disaster Recovery Coordinator who will maintain records of CLIENT
computer equipment sufficient to identify any differences which could
affect successful processing, and will promptly notify SI of any change
which may do so. The Disaster Recovery Coordinator will maintain
documentation for resolution of such differences in the event of a
Disaster. SI will provide CLIENT with one (1) copy of the SI Disaster
Recovery Services Users Guide to assist CLIENT in the understanding and use
of the services provided herein.
CLIENT agrees to conduct a test annually in the Disaster Recovery Facility.
Each test should be an analysis of compatibility consisting of CLIENT's
operating system, applications, and communications software sufficient to
achieve the pre-established mutually agreeable objectives. The test should
be planned for completion within the test time allocation specified in
Attachment 2, although extra time may be authorized by SI if unforeseen
problems occur and there is a reasonable expectation of solution within the
time extension. CLIENT will submit the request for an annual test to SI
using forms and procedures established. SI will schedule the test on a
mutually agreeable date. Data Center personnel will conduct the test with
the assistance of SYSTEMATICS staff, as necessary.
3.60 Non-Disaster Use. The Disaster Recovery Facility will be used by
SI for development and internal accounting, and for testing of other
Subscribing Clients. During any Recovery Period, a Subscribing Client who
has declared a Disaster shall take priority over all such use and may
preempt CLIENTs' test and use of associated services.
4. Disaster Recovery Plan.
CLIENT agrees to develop or acquire, and to maintain, a specific, written
plan for dealing with its data processing needs during a Disaster (the
"Disaster Recovery Plan"). A current copy of the Disaster Recovery Plan
shall be maintained by CLIENT at its operating facility, at an offsite
backup location, at the Data Center, and at SI's Disaster Recovery
Facility.
5. SI and CLIENT Relationship.
5.10 CLIENT Personnel. CLIENT agrees that trained personnel, with
appropriate levels of authority shall be temporarily located at the
Disaster Recovery Facility during all Recovery Period processing to perform
all CLIENT operations functions. In addition, to the extent that CLIENT
has responsibility under the FM Agreement, CLIENT agrees to provide the
necessary supplies and personnel (at the Disaster Recovery Facility or at
CLIENT's facility, as required) to perform said functions.
5.20 Travel and Living Expenses. CLIENT will pay all travel and
living expenses incurred by either CLIENT or SI for temporary relocation of
personnel as a result of a Disaster and/or testing.
5.30 Additional SI Personnel. CLIENT agrees to pay the amounts
normally charged to other similarly-situated clients of SI for all services
performed by SI that are not otherwise provided for in the FM Agreement or
in this Agreement.
5.40 Processing Frequency. This Agreement does not guarantee that all
applications will be processed as frequently during the Recovery Period as
they are processed under the FM Agreement. The applications processed will
be consistent with the priorities set forth in the Disaster Recovery Plan.
5.50 Time of Performance. SI will use diligence to provide the data
processing services set forth in the FM Agreement at the times required
therein. CLIENT acknowledges, however, that the circumstances of a
Disaster are likely to adversely impact SI's time of performance and that
the provisions of the Time of Performance section of the FM Agreement shall
continue to be applicable during the Recovery Period.
6. Service Levels.
6.10 Basic Coverage. The basic coverage under this Agreement provides
for access to the Disaster Recovery Facility under the Class of Service
indicated in Attachment 1.
6.20 Planning Service. Planning services, to assist CLIENT in
fulfilling the requirement for a Disaster Recovery Plan under Section 4 of
this Agreement, are provided under the terms and conditions of Attachment
3.
6.30 Shell Facility. Access to and use of the Shell Facility are
provided under the terms and conditions of Attachment 4.
6.40 Online. Availability of local terminals at the Disaster Recovery
Facility is provided as shown in Attachment 2. Backup of CLIENT's online
circuits, if any, is provided under the terms and conditions of the
Addendum for Dialup Analog Kits, or the Addendum for Multiplexer Service,
or the Addendum for Switched T1 Service.
6.50 Remote Terminal Cluster. Availability of a remote terminal
cluster, if any, is provided under the terms and conditions of the Addendum
For Remote Terminal Cluster.
6.60 Reader-Sorter Equipment. Backup of CLIENT reader-sorter
equipment, if any, is provided under the terms and conditions of the
Addendum For Reader-Sorter Support.
6.70 Proof Backup. Backup for CLIENT single-pocket proof equipment,
if any, is provided under the terms and conditions of the Addendum For
Proof Backup.
7. Fees
7.10 Participation Fee. CLIENT will pay the applicable monthly
participation fees for the Class of Service indicated in Attachment 1.
7.20 CLIENT Computer Equipment Change. Upon the installation or
deinstallation of any computer equipment at CLIENT's data center which
changes CLIENT's Class of Service, CLIENT agrees to pay the participation
fees (whether higher or lower) at the new Class of Service rate. If
CLIENT's requirements exceed the capacity of or are incompatible with the
subscribed Class of Service, CLIENT will notify SI. SI and CLIENT will
then have ninety (90) day in which to resolve the capacity or
incompatibility situation, which solution may include an agreement with
third party. If, after ninety
(90) days from CLIENT's notice to SI, SI and CLIENT have not agreed upon a
mutually satisfactory solution, either party may terminate this Agreeement.
7.30 Facility Access Fee. CLIENT agrees to notify SI verbally and in
writing of its declaration of a Disaster, and such notice shall require
payment of the Disaster Declaration Fee set forth in Attachment 1.
7.40 Facility Usage Fee. During the Recovery Period, CLIENT will also
pay the hourly Facility Usage Fee described in Attachment 1.
7.50 Miscellaneous Fees. CLIENT will pay for miscellaneous SI
services used during the Recovery Period at the rates then charged to other
similarly-situated SI clients.
7.60 Escalation of Fees. SI may periodically adjust its fees for
Disaster Recovery to reflect the various fluctuations in the cost of
supplying services. Such adjustments will occur under the same terms and
conditions as those described in Exhibit C of the FM Agreement.
8. Payment and Billing.
CLIENT agrees to pay the Participation Fee monthly in advance. Other
applicable fees will be invoiced at least monthly. CLIENT agrees to pay
all such fees within thirty days of the respective dates of such invoices.
9. Location Change.
CLIENT may change the location of the Data Center upon prior written notice
to SI.
10. CLIENT Termination.
CLIENT may terminate this Agreement if any change in the SI Computer
Equipment results in the Disaster Recovery Facility becoming materially
unusable to CLIENT for disaster recovery purposes. CLIENT must notify SI
in writing within thirty (30) days of SI's announcement of the equipment
change. Termination is subject to the actual installation of such
equipment and effective as of such equipment change installation date.
11. Security and Confidentiality.
CLIENT agrees to observe SI's security procedures while using the Disaster
Recovery Facility. SI and CLIENT each agree to take such steps and
exercise such precautions to protect the proprietary or confidential
information of the other as each exercises
in protecting its own most valuable proprietary or confidential
information. SI and CLIENT each agree to indemnify the other and hold the
other harmless from and against any loss, claim, damage or expense
(including attorneys' fees) resulting from or arising out of any
unauthorized use or disclosure of the confidential or proprietary
information of the other.
12. Shared Use.
CLIENT acknowledges that SI is not liable for any loss, claim, damage or
expense directly or indirectly resulting from the shared use of the
Disaster Recovery Facility and related services in the event of a Multiple
Disaster, except to the extent that such loss, claim, damage or expense was
caused by SI's negligence or willful misconduct.
13. Disclaimer of Merchantability.
ALL REPRESENTATIONS AND WARRANTIES OF SI ARE EXPRESSLY SET FORTH HEREIN.
ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED,
INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, WITH RESPECT TO THE DISASTER RECOVERY FACILITY AND RELATED
SERVICES OR THEIR USE, ARE HEREBY DISCLAIMED.
14. Forces Beyond SI Control.
SI shall use reasonable and diligent efforts to make the Disaster Recovery
Facility and related services available and operational at all times, and
in so doing shall take reasonable steps to safeguard against events which
could adversely impact the use thereof.
SI is not liable to CLIENT or any other person for claims or damages which
result from any failure beyond SI's control including but not limited to,
acts of God, the public enemy, acts of any federal, state or local
government, fires, floods, tornados, earthquakes or other weather related
disasters, war, strikes, unavailability of computer equipment replacement
parts, disruption of communication service and utility outages.
15. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Iowa.
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned,
hereunto duly authorized, on the date(s) set forth below.
SYSTEMATICS FINANCIAL ▇▇▇▇▇▇▇ INFORMATION
SERVICES, INC. SYSTEMS, INC.
By: /s/ By: /s/
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name:-▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice Title:-SVP/Marketing & Technology
President
Date: 1/2/92 Date: 1/2/92
ATTACHMENT 1
FEE SCHEDULE
CLIENT's CLASS OF SERVICE is determined by the CPU size (in MIPS) in the
Data Center. The services provided hereunder are indicated below under
Class of Service. Total Monthly Participation Fees are computed below and
are included in the monthly fees shown in Exhibit C.
CLASS OF SERVICE
"Standard" "A" "AA" "AAA"
0-2.0 2.1-4.0 4.1-8.0 8.1-11.0
MIPS MIPS MIPS MIPS
I. Participation Fees:
Basic Service includes: _____ _____ 2,200 _____
Planning Service
Shell Facility
On-Line Processing:
Multiplexer Service _____ _____ 500 _____
Additional SW56KB/DSU _____ _____ 150 _____
TOTAL MONTHLY
PARTICIPATION FEE $_____ $_____ $2,850 $_____
II. Facility Access Fee:$10,000 $10,000 $15,000 $25,000
III. Facility Usage Fee:
Disaster Recovery
Facility (Clock Hour) $200.00 $250.00 $300.00 $500.00
Shell Facility
(SqFt/Day) $ .15 $ .15 $ .15 $ .15
ATTACHMENT 2
COMPUTER EQUIPMENT LIST
CLASS OF SERVICE "AA" 4381-P13
Quantity IBM Type-Model Description
1 4381-P13 Processor (or Equivalent)
12 3178-C30 Terminals (Local)
16 Volumes 3380 Single Density Disk Drives
(or equivalent)
2 Drives ▇▇▇▇-▇ ▇▇▇▇ ▇▇▇▇▇▇ (1600/6250 BPI)
3 Drives 3480 Tape Cartridges
1 3725 Communications Controller
2 4245-20 Printer (2000 LPM)
10 Hours Test Time Ten Wall-Clock Hours
(Non-comulative)
ATTACHMENT 3
PLANNING SERVICES
Attachement to the Disaster Recovery Agreement between Systematics
Financial Services, Inc. ("SI) and the CLIENT whose name appears on page
H-1 hereof.
1. SI Responsibilities.
SI agrees to provide CLIENT with one (1) copy of SI's Recovery Reference
Manual, four (4) copies of the hardcopy version of SI's Recovery
Procedures Manual (the "Plan"), as well as the version on IBM PC-
compatible diskettes, along with the required software for the
WordPerfect word processing package necessary to utilize the diskette-
based Plan. SI also agrees to provide CLIENT with updates to the Plan
as they are developed. SI will offer a Disaster Recovery Planning
Workshop (the "Workshop") on a regular basis, to assist CLIENT planners
in contingency planning techniques. CLIENT may send no more than four
(4) people to the Workshop. SI will publish a list, at the beginning of
each calendar year, of projected dates for the proposed Workshops, but
reserves the right to cancel or reschedule workshops as appropriate.
2. CLIENT Responsibilities.
CLIENT agrees to customize the Plan to fulfill CLIENT's own requirements
and to incorporate appropriate updates that SI may supply from time to
time. CLIENT also agrees to exercise its best effort in taking
advantage of planning Workshops and other planning aids as appropriate
to CLIENT's requirements. CLIENT acknowledges that familiarity with the
WordPerfect word processing package is required to enhance CLIENT's
productivity in the Workshop and agrees that at least one of CLIENT's
prospective attendees will have acquired satisfactory expertise prior to
the Workshop. CLIENT furthermore acknowledges that the Plan is
confidential and proprietary material and will be returned to SI upon
expiration of this contract.
3. Fees.
Fees for the services provided by SI under this Attachment are included
in the Monthly Participation Fees set out in Attachment 1.
*WORDPERFECT is a registered trademark of WordPerfect Corporation.
ATTACHMENT 4
SHELL FACILITY
Attachment to the Disaster Recovery Agreement between Systematics
Financial Services, Inc. ("SI") and the CLIENT whose name appears on
page H-1 hereof.
1. SI Disaster Recovery Shell Facility.
1.10 Access and Utilization. Upon declaration of a Disaster,
CLIENT will have access to the Shell Facility for a period of up to nine
(9) months (the "Extended Recovery Period"). In the event of a Multiple
Disaster, more than one Subscribing Client may be granted access to the
Shell Facility pursuant to Section 3.40 of the Agreement. SI may
utilize the facility if a Disaster occurs in any of its own data
centers.
1.20 Computer Equipment. No computer equipment will be installed
prior to the Recovery Period. The party who owned the equipment in the
Data Center will be responsible for procurement, shipment and
installation of all required equipment following the declaration of a
Disaster.
1.30 Specifications. The Shell Facility consists of 17,500 sq. ft.
of space, including 4,500 sq. ft. of raised floor area. Air
conditioning capacity is 600,000 BTU/HR, electrical capacity is 160KVA.
There are 200 telephone pairs into the building, with 20 pairs active.
The remaining non-raised floor area consists of office and storage
space for CLIENT use. CLIENT will pay the fee prescribed in Attachment
1, for the amount of space actually used by CLIENT during the Extended
Recovery Period.
2. CLIENT Personnel.
CLIENT agrees that trained personnel of CLIENT, with appropriate levels
of authority shall be temporarily located at the Shell Facility during
the Extended Recovery Period to perform all CLIENT operations functions.
An SI representative will be present while CLIENT personnel are
occupying the Shell Facility. To the extent that they are available,
qualified SI personnel may be assigned to augment CLIENT's staff at the
rates referenced in Section 5.30 of the Agreement.
3. Termination.
SI may terminate this Attachment, without the termination of the
Agreement and other attachments, addenda or schedules, upon ninety (90)
days prior written notice to CLIENT. Should this service be supplanted
by another form of service which is useful to CLIENT, CLIENT will be
afforded priority to subscribe to the new service.
ADDENDUM
FOR
MULTIPLEXER SERVICE
Addendum to the Disaster Recovery Agreement between Sytematics Financial
Services, Inc. ("SI") and the CLIENT whose name appears on page H-1
hereof.
1. CLIENT Responsibility.
CLIENT will provide a location for the installation of an Altenate
Control Point (ACP) for each multi-point circuit that CLIENT desires to
back up, and arrange for installation of an appropriate telephone
company interface, business telephone lines, and appropriate jacks for
each designated circuit.
2. SI Responsibilities.
SI will provide an Infotron muliplexer kit for up to ten (10) circuits,
along with access to one (1) AT&T Accunet 56kb Switched Digital circuit
and DSU ("Multipler Service"), and an additional AT&T 56kb Switched
Digital access and DSU ("Additional SW56KB/DSU"), at the Disaster
Recovery Facility. SI will also provide a matching multiplexer kit for
CLIENT's designated ACP location, and will ship the required kit to
CLIENT as soon as possible after CLIENT has notified SI of a Disaster
declaration. CLIENT agrees to pay the then current prices to purchase
all such equipment and to provide all othe hardware, including modems
compatible with CLIENT circuits, communications links, and any required
software.
3. Testing.
SI will allow CLIENT the use of a multiplexer kit for a period not to
exceed one week per year, and an additional two (2) hours of non-
chargeable test time, for the purpose of on-line testing in comjunction
with other CLIENT tests. SI agrees to air-ship the required kit to
CLIENT during the week prior to the test, and CLIENT will return air-
ship the kit on the first working day following the test. Additional
test time will be chargeable at the rates shown in Attachment 1.
4. Fees.
CLIENT agrees to pay all expenses for the transportation, installation
and utilization of said equipment in annual tests and/or in an actual
Disaster, and to pay the fee prescribed in Attachment 1 monthly in
advance.
Revised 12-20-91
EXHIBIT I
INSURANCE
The following is a schedule of insurance coverage referred to in
the Agreement.
Type of Insurance
Coverage Limit Company Remarks
1.Commercial $1,000,000 The Chubb Bodily injury
each occurrence Group and property
damage; combined
limit. $10,000
premises medical
each person
General
Liability $2,000,000 The Chubb Bodily injury/
general aggregate Group property
Contents Variable The Chubb Blanket Coverage
Group $5,000
deductible.
2.Errors and
Omissions $2,000,000 The Chubb $2,000,000 each
Group occurrence and
aggregate.
$250,000
deductible.
(Additional
coverage to the
extent of
$23,000,000 as
set out in 7
below.)
▇.▇▇▇▇▇▇▇▇▇ Blanket Coverage The Chubb An all risks
Coverage Group policy covering
owned and leased
equipment for
replacement cost
at each location
w/$25,000
deductible for
all losses from
any one event,
and $10,000
deductible to
breakdown
coverage from
one event.
$500,000 in
transit or
temporary
location. Data
Processing Media
coverage
included.
4.Automobile $1,000,000 The Chubb Scheduled
each occurrence Group vehicles-some
locations.
Hired/non-owned
vehicles Comp.
deductible/$250
Collision
deductible/$250.
5.Worker's Comp.$500,000 The Statutory Limit
Cincinnati required by
Insurance various state
Company laws.
▇.▇▇▇▇▇▇▇▇
Coverage $10,000,000 The Chubb Employee
Blanket Bond Group Dishonesty
$100,000
deductible.
7.Umbrella $25,000,000 The Chubb Fiduciary
Group Liability and
aircraft
coverage
specifically
excluded. Errors
and Omissions
covered to the
extent of
$23,000,000
additional to
amount set out
in 2 above.
*Effective June 1, 1991.