RURBANC DATA SERVICES, INC. DATA PROCESSING SERVICES AGREEMENT
This
agreement is entered into effective as of February
16, 2005, by and between Rurbanc Data Services, Inc., a wholly
owned, subsidiary of Rurban Financial Corporation, an Ohio Corporation located
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (there after referred to as “RDSI”),
and
Bank
of Birmingham
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
(hereinafter
referred to as “Bank”).
| I. |
GENERAL
STATEMENT CONCERNING
SERVICES
|
The
Bank
agrees that RDSI may perform for the Bank certain services as described in
the
schedule(s) attached hereto (the “Services”), and RDSI agrees to perform such
Services pursuant to the terms and conditions of this Agreement. The Bank
agrees
to compensate RDSI for the Services in accordance with the term of the
Agreement.
The
Bank
and RDSI agree that, during the term of this Agreement, RDSI shall be the
exclusive provider of all of the Services that are provided
hereunder.
| II. |
TERM
OF THE AGREEMENT
|
The
initial term of the Agreement (the “Initial Term”) shall commence on the first
date on which Services are provided to the Bank hereunder (the “Commencement
Date”) and shall continue for a period of FIVE (5) years. Thereafter, the term
of the Agreement shall automatically continue until it is terminated by the
Bank
or RDSI in accordance with the terms hereof.
In
addition to any other termination rights that exist under other Sections
of this
Agreement, either the Bank or RDSI may terminate the Agreement as of the
end of
Initial Term or at any time thereafter by providing one hundred and eighty
(180)
days prior written notice to the other party.
| III. |
FEES
FOR SERVICES
|
| A. |
For
the Services provided hereunder, the Bank shall initially pay to
RDSI the
fees specified in the Fee Schedule attached hereto as Addendum
A (the “Fee
Schedule”). The bank acknowledges that RDSI may (i) decrease such fees at
anytime, and (ii) by providing thirty (30) days prior written notice
to
the Bank, increase any such fees at any time after the second anniversary
of the Commencement Date and the Bank agrees to pay such increased
or
decreased fees. RDSI and the Bank have agreed that during the first
two
years of the Agreement, rates shall be fixed at such rates as described
in
the attached Addendum A-Fee Schedule. Notwithstanding the foregoing,
RDSI
agrees that it will not increase its fees, in the aggregate, by
more than
five percent (5%) in either the third, fourth and fifth years of
the
Initial Term.
|
| B. |
The
only exceptions to this Pricing Agreement will be those related
to
increased account and transaction volumes of the Bank; new applications
and services not presently utilized by the Bank; increased number
of
terminals or workstations supported; Saturday processing; services
not
presently covered by this Agreement; and tariff revisions for data
communication line service which result in additional expenses
to RDSI
with respect to those data communication lines obtained to provide
data
processing service under this Agreement. Bank agrees to purchase
its own
paper supplies, statements, checks,
etc.
|
| C. |
Bank
acknowledges that the Fee Schedule does not include charges for
ground
transportation/courier services. To the extent utilized by the
Bank, such
transportation charges in addition to those specified in Section
III.A.
above, will be calculated and invoiced by RDSI to Bank based
on allowable
Internal Revenue Service mileage and maintenance guidelines,
plus salary
considerations, and will be subject to change by RDSI. RDSI agrees
to
obtain Bank approval prior to utilizing any ground transportation/courier
services.
|
| D. |
Bank
further acknowledges that the Services provided do not include
Saturday
processing; and that if, in the future, RDSI provides Saturday
processing
to the Bank as part of the Services, RDSI charges for such additional
Services will be in addition to those called for in Section III.A.
above.
|
| IV. |
CONVERSION
|
All
expenses of conversion will be paid by the Bank, and will include conversion
and
training fees, equipment purchases and modifications, communication equipment
and lines, ITI formal training classes, new forms and supplies and other
conversion cost items. The conversion expenses will also include a conversion
fee to RDSI in the amount of
$10,000.00, plus
any out
of pocket expenses incurred by RDSI in direct relation to the conversion
(i.e.,
lodging, meals, mileage, etc.), plus
any
other out of pocket expenses incurred by RDSI in direct relation to the
deconversion of the Bank's existing processing system. The RDSI conversion
fee
will be due upon invoicing. RDSI will provide the Bank with the results of
any
conversion tests that are performed by RDSI. The Bank agrees to notify RDSI
of
any potential problems which it recognizes as a result of its review of such
test results.
| V. |
AUDIT
|
RDSI
employs an internal auditor responsible for ensuring the integrity of its
processing environments and internal controls. In addition, RDSI provides
for
periodic independent audits of its operations. In each instance, RDSI will
provide the Bank with a copy of the independent audit within a reasonable
time
after its completion, and will charge the Bank and each of its other clients
a
fee based on the pro rata cost of the independent audit. RDSI will also provide
a copy of the independent audit to the appropriate regulatory agency having
jurisdiction over RDSI's provision of Services hereunder.
| VI. |
CORRECTION
OF ERRORS
|
All
Services provided by RDSI hereunder shall be deemed acceptable to the Bank
unless the Bank, within 30 days
following
its receipt of the Services, has provided to RDSI a written notice which
reasonably identifies the claimed error together with supporting documentation
which reasonably supports the claim. In each such instance, RDSI promptly
and in
good faith (i) will review such claim and where the claim is meritorious
(ii)
will attempt to reprocess or otherwise remedy the problem at its own cost
and
expense, subject to the limitations set forth in Section VIII below. Work
reprocessed due to error in data supplied by Bank, on Bank's behalf by a
third
party, or by Bank's failure to follow procedures set forth by RDSI will be
billed to the Bank at RDSI's then current rates as additional services
hereunder.
| VII. |
WARRANTIES
|
| A. |
RDSI
represents and warrants that: (i) the Services will conform
to the
specifications, if any, set forth in the schedules attached
to this
Agreement, (ii) RDSI will perform the Bank's work accurately
and in
accordance with the provisions of the Agreement, including
Section XIV
hereof, provided that the Bank supplies accurate data and information
and
follows the procedures described in all of RDSI's documentation,
notices
and advice's; (iii) RDSI personnel will exercise due care in
providing the
Services; (iv) RDSI's performance hereunder will comply in
all material
respects with all Federal and State laws that are in existence
as of the
effective date of this Agreement; (v) RDSI has implemented
appropriate
measures which are designed to meet the objectives of the “Guidelines”
that, as of the effective date of this Agreement, have been
established by
the Bank’s regulators with respect to Section 5.01(b) of the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act [15 U.S.C. 6801(b);and (vi) the Services
will be
capable of supporting Year 2000 functionality and will function
in
accordance with the specifications of a multi-century, multi-millennium
environment. As used in the Section VII.A., "supporting Year
2000
functionality" shall mean that the Services provided hereunder
will
provide fault-free performance in the processing of dates and
date-related
data, including but not limited to calculating, comparing and
sorting
individually and in combination with other RDSI products and
services. As
used in this Section, "fault-free performance" shall mean the
correct
manipulation of data containing dates prior to, through and
beyond January
1, 2000 (including leap year computations), without human intervention.
Any modifications required to conform the Services provided
by RDSI
hereunder to Year 2000 functionality will be made by RDSI at
its own
expense. However, associated costs for assistance and testing
of the data
of Bank, files and equipment that may be required by various
regulatory
authorities will be the responsibility of the
Bank.
|
RURBANC
DATA SERVICES, INC.
PAGE
2
| B. |
THE
WARRANTIES STATED IN SECTION VII.A. ABOVE ARE LIMITED WARRANTIES
AND ARE
THE ONLY WARRANTIES MADE BY RDSI. RDSI DOES NOT MAKE, AND THE BANK
HEREBY
EXPRESSLY WAIVES, ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE STATED
EXPRESS
WARRANTIES ARE IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF RDSI
FOR
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE
OR
PERFORMANCE OF THE SERVICES.
|
| C. |
The
Bank represents and warrants that: (i) no contractual obligations
exist
that would prevent the Bank from entering into the Agreement; (ii)
that
throughout the term of this Agreement, it will comply with all
applicable
regulatory requirements, including without limitation, all applicable
requirements to issue privacy notices to individual consumers and
customers; and (iii) it has requisite authority to execute, deliver
and
perform this Agreement. The Bank shall indemnify and hold harmless
RDSI,
its officers, directors, employees and affiliates against any and
all
claims by third parties arising out of the performance and nonperformance
of the Service by RDSI hereunder; provided, that such indemnity
on the
part of the Bank shall not preclude the Bank from recovering direct
damages from RDSI pursuant to the terms and subject to the limitations
of
the Agreement.
|
| VIII. |
LIMITATION
OF LIABLITY
|
| A. |
Except
as otherwise provided in the penultimate sentence of Section VII.A.
above,
IN NO EVENT SHALL RDSI BE LIABLE FOR LOSS OF GOOD WILL, OR FOR
SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING
FROM THE
BANK'S USE OF THE SERVICES OR RDSI'S SUPPLY OF EQUIPMENT OR SOFTWARE,
REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT OR IN CONTRACT.
RDSI'S
AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTION RELATING TO
THE
SERVICES SHALL BE LIMITED TO THE TOTAL FEES PAID BY THE BANK TO
RDSI
HEREUNDER FOR THE SERVICES RESULTING IN SUCH LIABILITY IN THE TWO-MONTH
PERIOD PRECEEDING THE DATE THE CLAIM ACCRUED; AND RDSI'S AGGREGATE
LIABILITY FOR A DEFAULT RELATING TO EQUIPMENT OR SOFTWARE SHALL
BE LIMITED
TO THE AMOUNT PAID BY THE BANK FOR THE EQUIPMENT OR
SOFTWARE.
|
| B. |
If
the Bank's records or other data submitted for processing are lost
or
damaged as a result of any failure by RDSI, its employees or agents
to
exercise reasonable care to prevent such loss or damages, RDSI's
liability
on account of such loss or damages shall not exceed the reasonable
cost of
reproducing such records or data from exact duplicates thereof
in the
Bank's possession.
|
| IX. |
DISASTER
RECOVERY
|
| A. |
RDSI
maintains a disaster recovery plan (the "Disaster Recovery Plan")
with
respect to each of the Services. For purposes of the Agreement,
a
"Disaster" shall mean any unplanned interruption of the operations
of or
inaccessibility to RDSI's service center in which RDSI, using reasonable
judgement, requires relocation of processing to a recovery location.
RDSI
shall notify the Bank as soon as possible after RDSI deems a service
outage to be a Disaster. RDSI shall move the processing of the
Bank's
standard services to a recovery location as expeditiously as possible
and
shall coordinate the cut-over to back-up telecommunication facilities
with
the appropriate couriers. The Bank shall maintain adequate records
of all
transactions during the period of service interruption and shall
have
personnel available to assist RDSI in implementing the switchover
to the
recovery location. During a Disaster, optional or on-request services
shall be provided by RDSI only to the extent adequate capacity
exists at
the recovery location and only after stabilizing the provision
of base
services.
|
RURBANC
DATA SERVICES, INC.
PAGE
3
| B. |
RDSI
will work with the Bank to establish a plan for alternative communications
in the event of a Disaster.
|
| C. |
RDSI
will test the Disaster Recovery Plan periodically. The Bank agrees
to
participate in and assist RDSI with such test, if requested by
RDSI. Upon
the Bank's request, test results will be made available to the
Bank's
management, regulators, auditors and insurance underwriters. RDSI
will
charge the Bank and each of its clients a fee based on the pro
rata cost
of the Disaster Recovery Plan.
|
| D. |
RDSI
will release to the Bank information necessary to allow the Bank
to
develop, and the Bank agrees to develop with respect to its own
internal
operations and equipment, a disaster recovery plan that operates
in
concert with the Disaster Recovery
Plan.
|
| E. |
The
Bank understands and agrees that the Disaster Recovery Plan is
designed to
minimize, but not eliminate, risks associated with a disaster affecting
RDSI's service center. RDSI does not warrant that the Services
will be
uninterrupted or error free in the event of a Disaster, and no
performance
standards shall be applicable during the pendency of any Disaster.
The
Bank shall be responsible for adopting a disaster recovery plan
relating
to disasters affecting the Bank's facilities and for securing business
interruption insurance or other insurance necessary for the Bank's
protection.
|
| X. |
OWNERSHIP
AND CONFIDENTIALITY
|
| A. |
It
is understood that the Bank is the legal owner of all data and
records
relative to itself which may be in the possession of RDSI and that
such
data and records may be obtained by the Bank via machine readable
form at
a reasonable charge determined by RDSI, as stated in Section XVIII
(Deconversion Considerations) of the Agreement. RDSI is the owner
of all
programs and documentation.
|
| B. |
RDSI
and the Bank each agree that all information including, but not
limited to
business methods, internal operations data and customer records,
communicated to it by the other either before or after the effective
date
of this Agreement, was and shall be received in strict confidence,
shall
be used only for the purposes of this Agreement, and that no such
information shall be disclosed by the recipient party without the
prior
written consent of the other party, and each agrees that each party
will
prevent the disclosure to outside parties of the terms and provisions
hereof, except as may be necessary by reasons of legal, accounting,
or
regulatory requirements beyond the reasonable control of RDSI or
the Bank,
as the case may be.
|
| C. |
This
Agreement absolutely prohibits either party from disclosing confidential
information of the other, except as required by law or court order
or
disclosure of information already in the public domain through
no fault of
either party to the Agreement. Both parties agree to notify the
other of
any breach of confidentiality.
|
| D. |
RDSI
and the Bank agree to indemnify and hold harmless the other from
any
direct loss, damage cost or expense which the other may sustain
or incur
by reason of any wrongful use by RDSI or the Bank, as the case
may be, of
confidential information of the other obtained in the course of
the
performance of this Agreement. In no event, shall such indemnification
extend to claims by or information communicated by third parties
not
subject to the Agreement.
|
| E. |
RDSI
agrees that it will comply with all applicable Federal and State
Banking
regulations governing the use of disclosure of information provided
by the
Bank.
|
RURBANC
DATA SERVICES, INC.
PAGE
4
| F. |
RDSI
shall establish and maintain reasonable safeguards against the
destruction
or loss of the Bank's data in the possession of
RDSI.
|
| G. |
RDSI
will notify the Bank of any system changes that will effect the
Bank's
procedures, reports, etc.
|
| H. |
RDSI
and the Bank each agree that all Bank information, including hard
copy
report media as well as on-line data, and all Bank customer data,
shall be
held in strict confidence, and shall be used only for purposes
of the
Agreement, and that no such information shall be disclosed without
the
prior written consent of the Bank. RDSI and Bank each agrees to
take all
reasonable precautions to prevent the disclosure to outside parties
of the
terms of this Agreement, except as required by
law.
|
| XI. |
PAYMENTS
AND BILLING
|
Each
month, RDSI will invoice the Bank for the fees referenced in Section III
above
and for any other amounts that may be owing from the Bank to RDSI under the
terms of this Agreement. If any invoice is not paid in full within thirty-one
(31) days after the date of the invoice, the unpaid portion will be subject
to,
and the Bank agrees to pay, a service charge of one percent (1%) per month
on
such unpaid portion.
| XII. |
GENERAL
|
| A. |
The
Bank acknowledges that it has not been induced to enter this Agreement
by
any representation or warranty not set forth in this Agreement.
This
Agreement, together with the addenda and schedules attached hereto,
contain the entire agreement of the parties with respect to its
subject
matter hereof, and supersedes all existing agreements and all other
oral,
written or other communications with respect to such matters. This
Agreement may not be modified in any way except by a writing signed
by
both parties. If at any time after the effective date of the Agreement,
RDSI and the Bank agree upon the provision of additional Services
not
originally covered by this Agreement, such additional Services
shall be
dealt with in an Addendum to this Agreement signed by both RDSI
and the
Bank.
|
| B. |
This
Agreement may not be assigned by the Bank, in whole or in part,
without
the prior written consent of RDSI. This Agreement shall be binding
upon
and shall insure to the benefit of RDSI and the Bank and their
respective
successors and permitted assigns.
|
| C. |
If
any provision of the Agreement shall be held to be invalid, illegal
or
unenforceable, the validity, legality or enforceability of the
remainder
of the Agreement shall not in any way be affected or impaired
thereby.
|
| D. |
The
Headings in this Agreement are intended for convenience of reference
and
shall not affect its
interpretation.
|
| E. |
The
individuals executing this Agreement on behalf of RDSI and the
Bank do
each hereby represent and warrant that they are duly authorized
by all
necessary action to execute the Agreement on behalf of their respective
principals.
|
| F. |
This
Agreement shall be governed by and construed in accordance with
the laws
of the State of Ohio.
|
| G. |
Neither
RDSI nor the Bank will be responsible for delays or failures in
performance resulting from acts reasonably beyond the control of
that
party. Such acts will include, but not be limited to (i) mechanical
failures or breakdown of electronic data processing equipment,
(ii)
shortages in supplies or materials, (iii) strikes, lockouts, riots,
civil
disturbance, war or insurrection, (iv) fire, epidemics or other
casualty;
(v) earthquakes, floods, tornadoes, storms or similar acts of God,
(vi)
destruction of data communication lines, or (vii) governmental
regulations
or interference.
|
RURBANC
DATA SERVICES, INC.
PAGE
5
| H. |
RDSI
and the Bank agree that if at anytime documentation or other information
is in transit via ground courier from Bank to RDSI or from RDSI
to Bank,
the party making the shipment will maintain or cause the courier
to
maintain reasonable insurance with respect to such
items.
|
| I. |
If
at any time RDSI is required to incur costs for the express and
limited
purpose of complying with changes in the law that (i) occur after
the
effective date of this Agreement and (ii) relate directly to the
provision
of Services hereunder, RDSI will be entitled to charge the Bank
and each
of its other clients a pro rata fee based upon such compliance
costs
incurred by RDSI.
|
| J. |
The
parties agree that the services to be provided by RDSI under the
Agreement
are not regulated services, public utility services or telecommunications
services. If at any time any court holds or any public agency asserts
that
RDSI is providing regulated services, public utility services or
telecommunications services under this Agreement, the parties agree
to
modify the Agreement to eliminate the provisioning of such activities
by
RDSI.
|
| XIII. |
INTERNAL
REVENUE SERVICE
|
As
part
of the Services, RDSI shall at all times attempt to comply with all applicable
Internal Revenue Service ("IRS") reporting requirements. In that regard,
if at
any time, the IRS assesses a fine or penalty against the Bank based upon
information provided to the IRS by RDSI, and RDSI, in its reasonable judgement,
determines that the fine or penalty did not result from erroneous information
previously provided to RDSI by the Bank, then subject to the liability
limitations contained in Section VIII hereof, RDSI will indemnify and save
the
Bank harmless from such fines and penalties.
| XIV. |
ON-LINE
AVAILABILITY AND OTHER
MATTERS
|
| A. |
RDSI
will make every reasonable effort to have On-Line Inquiry Services
available during the following
hours:
|
|
On-Line
Availability
|
Schedule
|
|
8:00
a.m. - 7:00 p.m.
8:00
a.m. - 7:00 p.m.
8:00
a.m. - 7:00 p.m.
8:00
a.m. - 7:00 p.m.
8:00
a.m. - 7:00 p.m.
8:00
a.m. - 3:00 p.m.
Not
Available Unless Previously Arranged
Not
Available Unless Previously Arranged
|
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Scheduled
Holidays
*Based
on Federal Reserve Holiday
Schedule
|
| B. |
RDSI
will provide system updates nightly for the Bank, Monday through
Friday,
excluding Federal Reserve holidays. Saturday's work will be posted
or
updated during Monday's nightly update. In addition, Friday's
actual
reports typically will not be delivered to the Bank until the
following
Monday morning, with delivery being made by ground courier, via
Director
Report Storage and Retrieval System, the MACROFICHE Report Storage
and
Retrieval System, by the RECALL Optical Disk Systems, or by other
RDSI
supported Report Storage and Retrieval System. Although processing
will
not occur on ▇▇▇▇▇▇▇▇▇, ▇▇▇ on-line system will be available
to the Bank
on Saturday, so that regular business may be
conducted.
|
| C. |
RDSI
assures on-line availability for balance verification and transaction
authorization to the RDSI Enterprise Server (host computer) at
least
ninety-five percent (95%) of the processing time each month (excluding
scheduled down time for normal system maintenance) provided the
Bank's
network and data communication lines are available. The Bank shall
be
notified at least one (1) week in advance of any scheduled Enterprise
Server (host computer) downtime.
|
RURBANC
DATA SERVICES, INC.
PAGE
6
| D. |
On
a monthly basis, RDSI will assure that its on-line computing facilities
are available for the processing of the Bank's on-line transactions
at a
minimum of ninety-five percent (95%) of the time, measured over
a calendar
month at the point of departure from the RDSI Enterprise Server
(host
computer).
|
| E. |
On-line
response time is a direct function of the data communication line
speed
and the Bank's internal network. If requested by the Bank, RDSI,
as an
additional service performed at its standard rates, will assist
the Bank
in analyzing and maintaining an acceptable and satisfactory response
time
and, when necessary, will assist the Bank in attempting to improve
the
response time.
|
| F. |
As
part of its customer service, RDSI will endeavor to respond to
the Bank's
questions within an average response time of two (2) hours after
RDSI is
contacted at its Customer Support
Center.
|
| G. |
RDSI
will notify the Bank of any errors in the RDSI software or operating
system procedures that appear to impact the Bank whenever such
errors are
detected by or reported to RDSI. Such notification shall include
a plan
for correction of the error.
|
| H. |
RDSI
will provide the Bank two (2) weeks notice of any change in routing
operating procedures. Changes falling into this category include
but are
not limited to: (i) persons to notify in the event of a problem;
(ii) form
of communications; (iii) change in processing or contact location;
and
(iv) hours of service, etc.
|
| I. |
RDSI
will notify the Bank, in writing, of any enhancements or new releases
of
the RDSI software not less than one (1) week prior to implementation
of
such changes.
|
| J. |
In
addition to the analysis RDSI will provide to Bank with respect
to on-line
response time of the data line speed pursuant to Section XIV.E.,
it is
understood and agreed by the parties that RDSI has and will continue
to
analyze, negotiate and execute contracts with the telecommunications
carrier providing data line service for the benefit of Bank. The
data
communication service that has been or will be obtained and maintained
by
RDSI includes [dedicated
high speed access service and frame relay service].
RDSI will use its best efforts to enter into a contract with a
term that
is coincident with the term of the Agreement, but may be required
to enter
into a contract with a shorter term. RDSI will provide further
support and
maintenance service to Bank by interfacing with the telecommunications
carrier providing such data lines with respect to any billing and
maintenance issues that may arise during the term of contract with
the
carrier. The fees for analysis, negotiation, maintenance and support
services for the data lines shall be as specified on the Fee Schedule,
as
revised from time to time. Although the data lines may be obtained
in the
name of RDSI, it is understood and agreed that such services are
a
necessary component in providing data processing services to Bank
under
the Agreement and, therefore, are being obtained for the sole purpose
of
providing such services to the
Bank.
|
| XV. |
TERMINATION
|
| A. |
In
the event that any correct invoice submitted by RDSI to the Bank
remains
unpaid thirty-one (31) days after the date of the invoice, RDSI,
at its
option, may terminate this Agreement. For purposes of this Section
XV.A.,
any invoice submitted by RDSI shall be deemed correct unless, within
thirty (30) days of the date of the invoice, the Bank provides
a written
notice to RDSI which states, with reasonable particularity and
detail, the
nature of the claimed error.
|
RURBANC
DATA SERVICES, INC.
PAGE
7
| B. |
RDSI
may terminate this Agreement if the Bank breaches the “exclusive provider”
arrangements provided for in Section I
above.
|
| C. |
Either
RDSI or the Bank may terminate the Agreement in the event that
(i) the
other party becomes the subject of any proceeding under the Bankruptcy
Code, or (ii) if any substantial part of the other party's property
becomes subject to levy, seizure, attachment or sale by creditor
or
governmental agency, whether pursuant to a receivership proceeding
or
otherwise.
|
| D. |
Either
RDSI or the Bank may terminate this Agreement as provided in Section
II
above.
|
| E. |
In
addition to the termination rights previously provided for in this
Section
XV., either RDSI or the Bank may terminate this Agreement in the
event
that any other material breach of this Agreement by the other party
is not
cured within ninety (90) days following written notice stating,
with
reasonable particularity and detail, the nature of the claimed
breach.
|
| F. |
Notwithstanding
any provisions in this Agreement to the contrary, should Bank terminate
this Agreement for any reason prior to the conclusion of the term
of the
Agreement or terminate the use of any data communication line used
to
provide data processing services herein, Bank shall continue to
reimburse
RDSI for costs incurred by RDSI under contract with a telecommunications
carrier for data communication lines obtained by RDSI to provide
data
processing services under this Agreement. Costs to be reimbursed
may
include, but are not limited to, early termination charges which
may be
imposed by the telecommunications carrier. Such reimbursement shall
continue until the contract with the telecommunications carrier
terminates, provided that RDSI must exercise every right available
to
terminate such contract and will work with Bank to negotiate any
early
termination with the telecommunications
carrier.
|
| XVI. |
REMEDIES
|
| A. |
If
at any time during the Initial Term of this Agreement, RDSI terminates
this Agreement pursuant to Section XV.A., Section XV.B. or Section
XV.C or
Section XV.E. above, then, in any such instance, RDSI shall be
entitled to
recover from the Bank - in addition to any amount accrued for Services
performed prior to the date of termination - as liquidated damages
and not
as a penalty, an amount equal to the present value of all payments
remaining to be made hereunder for the remainder of the Initial
Term of
this Agreement. For purposes of the preceding sentence, the present
value
shall be computed using the "prime" rate (as published in The Wall
Street
Journal) in effect at the date of termination and "all payments
remaining
to be made" shall be calculated based on the average of RDSI's
invoices
for the three (3) months in which its ▇▇▇▇▇▇▇▇ to the Bank were
the
highest during the 12-month period immediately preceding the date
of
termination (or such shorter period as is applicable if this Agreement
has
not been in effect for 12 months) multiplied by the number of months
remaining in the Initial Term of the Agreement. RDSI and the Bank
acknowledge and agree that in the event of a termination of the
character
described in this Section XVI.A., RDSI will suffer substantial
damages
that are difficult or impossible to quantify; that the amount calculated
under the terms of this Section XVI.A. is a reasonable estimate
of RDSI's
probable damages; and that such amount shall be payable as liquidated
damages hereunder in the event of any such termination. The Bank
agrees to
reimburse RDSI for any expenses, including reasonable attorney's
fees,
that RDSI incurs in enforcing its remedies under this Section
XVI.A.
|
| XVII. |
ARBITRATION
|
| A. |
Any
dispute or controversy arising out of this Agreement of its interpretation
shall be submitted to and resolved exclusively by arbitration under
the
rules then prevailing of the American Arbitration Association,
upon
written notice of demand for arbitration by the party seeking arbitration,
setting forth the specifics of the matter in controversy or the
claim
being made. The Arbitration shall be heard before an arbitrator
mutually
agreeable to the parties; provided, that if the parties cannot
agree upon
the choice of arbitrator within ten (10) days after the first party
seeking arbitration has given written notice thereof, the arbitration
shall be heard by three arbitrators, one chosen by each party and
the
third chosen by those two arbitrators. The arbitrators will be
selected
from a panel of persons having experience with and knowledge of
information technology. A hearing of the merits of any claim for
which
arbitration is sought by either party shall be commenced not later
than
ninety (90) days from the date demand for arbitration is made by
the first
party seeking arbitration. Any award by the arbitrator(s) in any
such
arbitration proceeding shall be final and binding upon the parties
and a
judgement thereon may be entered in any court of competent
jurisdiction.
|
RURBANC
DATA SERVICES, INC.
PAGE
8
| B. |
Any
arbitration proceedings shall be governed by the United States
Arbitration
Act. The arbitrators shall apply the substantive law of the State
of Ohio,
without reference to provision related to conflict of laws. The
arbitrators shall not have the power to alter, modify, amend, add
to or
subtract from any term or provision of the Agreement. The arbitrators
shall have the authority to grant any legal remedy that would have
been
available had the parties submitted the dispute to a judicial
proceeding.
|
| C. |
If
arbitration is required to resolve any disputes between the parties,
such
proceeding shall be held in Columbus, Ohio or in such other location
that
is mutually agreed upon by the
parties.
|
| XVIII. |
DECONVERSION
CONSIDERATIONS
|
| A. |
Upon
termination of this Agreement, the Bank may obtain from RDSI relevant
data
files and records for the purposes of deconverison to an alternative
data
processing system via machine readable media under the following
pricing
arrangement:
|
| B. |
| 1. |
File
Delivery Fee- i.e.: magnetic, pull file, internet, email, CD Rom
etc. -
$500.00 per file delivered.
|
| 2. |
Bank
agrees to purchase from RDSI, at RDSI’s cost, all used special form
inventory previously purchased at RDSI’s
expense.
|
| 3. |
All
data processing line charges yet to be invoiced, calculated to
the
estimated date of deconversion and actual line disconnect
order.
|
| 4. |
Programming
and Software Deconversion Charges -
$5,000.00
|
| 5. |
Additional
charges, if any, directly relating to the Deconversion, as assessed
by
Information Technology, Inc. (ITI), Lincoln, Nebraska. These charges,
if
any, as determined by ITI will be passed through directly to the
Bank.
|
| 6. |
RDSI
Special Report Handling of reports, trials, listings, report writing
etc.
- $50.00 per report.
|
| C. |
The
deconversion activities contemplated by this Section XVIII, shall
constitute additional services hereunder and the amounts payable
to RDSI
therefore (i) shall be in addition to the fees called for in the
Fee
Schedule referenced in Section III above, and (ii) shall be due
prior to
RDSI’s release of the information in
question.
|
| D. |
The
Bank shall not be required to pay any of the deconverison fees
or charges
provided for in this Section XVIII. in the event this Agreement
is
terminated by the Bank pursuant to either Section XV.C. or Section
XV.E.
above.
|
| XIX. |
NONSOLICITATION
OF EMPLOYEES
|
During
the term of this Agreement and for a period of twelve (12) months thereafter,
without prior written consent of the other, neither RDSI nor the Bank will
offer
employment to or otherwise employ any person employed by the other if the
person
was involved with the Services provided under this Agreement.
| XX. |
PATENT
INDEMNITY
|
Each
of
RDSI and the Bank shall indemnify, defend and hold harmless the other from
any
and all claims, actions, damages, liabilities, costs and expenses, including
without limitation reasonable attorney’s fees and expenses, arising out of any
claims of infringement of any United States letters patent, any trade secret,
or
any copyright, trademark, service ▇▇▇▇, trade name or similar proprietary
rights
conferred by common law or by any law of the United States or any state alleged
to have occurred because of systems provided or work performed. However,
this
indemnity will not apply unless the party seeking indemnity informs the party
from whom indemnification is sought promptly concerning the matter in question
and gives such party full opportunity to control the defense thereof, including
without limitation any agreement relating to settlement.
| XXI. |
NOTICES
|
All
notices and other communications hereunder shall be in writing and will be
deemed to have been given when delivered by hand or deposited in the United
States mail, first class (or in the case of a breach, registered or certified,
return receipt requested with proper postage, registration and certification
fees prepaid), addressed to the party for whom intended at the respective
addresses set forth below, or such other address as may be designated pursuant
hereto:
|
If
to RDSI:
|
If
to the Bank:
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇.
|
|
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
Attention:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
Attention:
▇▇▇▇ ▇▇▇▇▇▇
|
IN
WITNESS WHEREOF, RDSI and the Bank have caused the Agreement to be executed
and
delivered by their duly authorized representatives effective as of the date
first above written.
Commencement
Date: ____________________
RURBANC
DATA SERVICES, INC.
By:
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Executive Vice President
Bank
of
Birmingham
By:
/s/ ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇
Title:
Chief Financial Officer
RURBANC
DATA SERVICES, INC.
PAGE
9