TECHNOLOGY OUTSOURCING RENEWAL
AGREEMENT
This Master
Agreement is made as of the 1st day of April, 2006 (the
“Effective Date”), by and between Independent Bank
Corporation , a Michigan Corporation (“Customer”),
and Metavante Corporation , a Wisconsin corporation
(“Metavante”).
Customer desires
Metavante to provide to Customer the services set forth in this
Agreement, and Metavante desires to provide such services to
Customer, all as provided in this Agreement.
THEREFORE, in
consideration of the payments to be made and services to be
performed hereunder, upon the terms and subject to the conditions
set forth in this Agreement and intending to be legally bound, the
parties hereto agree as follows:
Metavante shall
provide to Customer and Customer shall receive from Metavante, all
upon the terms and conditions set forth in this Agreement, the
Services specified in this Agreement. The term of this Agreement
shall commence on the Effective Date and end on the six (6th)
anniversary of the last day of the month in which the Effective
Date occurs (the “Initial Term”).
As of the
Effective Date, the parties acknowledge that this Agreement
includes the following Schedules:
Services and
Charges Schedule
Strategic
Network Solutions Schedule
As of the
Effective Date, the parties acknowledge that Services will be
provided for Customer and the following Affiliates of
Customer:
First Home Financial (General Ledger
only), MSB Investments (General Ledger only),
Independent Bank West Michigan, Independent Bank, Independent Bank
South
Michigan, Independent Bank East Michigan, Independent Bank Corp.
(General Ledger
only), and IBC Services, Inc. (General Ledger only)
By signing below,
the parties agree to the terms and conditions of this Agreement,
and Customer appoints Metavante as: (1) Customer’s
attorney-in-fact to transmit files and information to the Internal
Revenue Service (“IRS”) and to take all appropriate
actions in connection therewith and empowers Metavante to authorize
the IRS to release information return documents supplied to the IRS
by Metavante to states which participate in the “Combined
Federal/State Program”; and (2) Customer’s agent to
sign on Customer’s behalf the Affidavit required by the
Internal Revenue Service on Form 4804, or any successor form.
Customer
acknowledges
that Metavante’s execution of the Form 4804 Affidavit on
Customer’s behalf does not relieve Customer of responsibility
to provide accurate TINs or liability for any penalties which may
be assessed for failure to comply with TIN requirements.
IN WITNESS
WHEREOF, the parties have caused this Agreement to be executed on
their behalf as of the date first above written.
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METAVANTE
CORPORATION
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INDEPENDENT
BANK CORPORATION
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4900 W. Brown
Deer Road
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230 W. Main
Street
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Brown Deer, WI
53223
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Ionia, MI
48846
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/s/ Paul
Danola
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By:
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/s/ Rob
Shuster
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Paul
Danola
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Name:
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Rob
Shuster
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President and
Chief Operating Officer
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Title:
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Executive Vice
President & Chief
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Financial
Solutions Group
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Financial
Officer
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By:
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/s/ Rich
Butler
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Name:
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Rich
Butler
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Title:
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Executive Vice
President
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/s/ James R.
Geschke
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James R.
Geschke
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Executive Vice
President
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Financial
Technology Services
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1.1.
Definitions . Capitalized terms shall have the meaning
ascribed to them in Article 18 of this Agreement.
1.2.
References . In this Agreement, references and mention of
the word “includes” and “including” shall
mean “includes, without limitation” and
“including, without limitation,” as applicable, and the
word “any” shall mean “any or all”.
Headings in this Agreement are for reference purposes only and
shall not affect the interpretation or meaning of this
Agreement.
1.3.
Interpretation . The terms and conditions of this Agreement
and all schedules attached hereto are incorporated herein and
deemed part of this Agreement. In the event of a conflict between
the general terms and conditions and the terms of any schedules or
exhibits attached hereto, the terms of the schedules and exhibits
shall prevail and control the interpretation of the Agreement with
respect to the subject matter of the applicable schedules and/or
exhibits. The schedules and exhibits together with the general
terms and conditions shall be interpreted as a single document.
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all of
which together constitute one and the same agreement.
1.4.
Affiliates . Independent Bank Corporation agrees that it is
responsible for ensuring compliance with this Agreement by those of
its Affiliates that receive Services under this Agreement.
Independent Bank Corporation agrees to be responsible for the
submission of its Affiliates’ data to Metavante for
processing and for the transmission to Independent Bank
Corporation’s Affiliates of such data processed by and
received from Metavante. Independent Bank Corporation agrees to pay
any and all fees owed under this Agreement for Services rendered to
its Affiliates.
2.1.
Duration . Unless this Agreement has been earlier terminated
or unless Customer provides Metavante with written notice of
non-renewal at least nine (9) months prior to the expiration
of the Initial Term, this Agreement shall automatically renew at
the end of the Initial Term on the same terms (including pricing
terms) for one (1) twelve-month period. Upon expiration of
such twelve (12) -month extension, this Agreement shall expire
unless renewed in writing by the parties, provided, however, that
Metavante may, but has no obligation to, continue to provide all or
any portion of the Services thereafter on a month-to-month basis
subject to these Terms and Conditions and Metavante’s
then-current standard fees and charges.
2.2.
Termination Assistance . Following the expiration or early
termination of this Agreement, Metavante shall provide to Customer
the Customer Data in the format in which it exists on
Metavante’s systems, in accordance with Metavante’s
then-current standard prices for the delivery media. In addition,
Metavante agrees to provide to Customer, at Customer’s
expense, all necessary assistance to facilitate the orderly
transition of Services to Customer or its
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designee
(“Termination Assistance”). As part of the Termination
Assistance, Metavante shall assist Customer to develop a plan for
the transition of all Services then being performed by Metavante
under this Agreement, from Metavante to Customer or
Customer’s designee, on a reasonable schedule developed
jointly by Metavante and Customer. Prior to providing any
Termination Assistance, Metavante shall deliver to Customer a
good-faith estimate of all such Expenses and charges, including
charges for custom programming services. Customer understands and
agrees that all Expenses and charges for Termination Assistance
shall be computed in accordance with Metavante’s then-current
standard prices for such products, materials, and services,
notwithstanding the foregoing, programming fees applicable to
Termination Assistance will be as specified in the Services and
Charges Schedule hereto. Customer shall pay for the Customer Data
and any Termination Assistance in advance of Metavante providing
such data or assistance. Nothing contained herein shall obligate
Customer to receive Termination Assistance from
Metavante.
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3.
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CONDITIONS AND
LICENSES
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3.1.
Performance by Subcontractors . Customer understands and
agrees that the actual performance of the Services may be made by
Metavante, one or more Affiliates of Metavante, or subcontractors
of any of the foregoing Entities (collectively, the “Eligible
Providers”). For purposes of this Agreement, performance of
the Services by any Eligible Provider shall be deemed performance
by Metavante itself. Metavante shall remain fully responsible for
the performance or non-performance of the Services by any Eligible
Provider, to the same extent as if Metavante itself performed or
failed to perform such services. Customer agrees to look solely to
Metavante, and not to any Eligible Provider, for satisfaction of
any claims Customer may have arising out of this Agreement or the
performance or nonperformance of Services. However, in the event
that Customer contracts directly with a Third Party for any
products or services, Metavante shall have no liability to Customer
for such Third Party’s products or services, even if such
products or services are necessary for Customer to access or
receive the Services hereunder.
3.2. Customer
Marks . Metavante is authorized to use Customer’s service
marks and trademarks solely if necessary to perform the Services
and solely for the purpose of providing the Services to Customer.
Any use of Customer’s marks by Metavante shall be subject to
Customer’s prior written approval, which shall not be
unreasonably withheld by Customer.
3.3. Software
License . Customer (a) will install and operate copies of
certain Metavante-supplied software, if any, that is identified in
the Services and Charges Schedule as required for Customer to
access or receive certain of the Initial Services, (b) may
access certain software that Metavante will make available on the
internet, and (c) may be provided with copies of software for
demonstration purposes (collectively, the “Incidental
Software”). Metavante hereby grants to Customer a personal,
nonexclusive, and nontransferable license and right, for the
duration of this Agreement, to use the Incidental Software solely
in accordance with the applicable Documentation and for no other
purposes. Customer shall not do any of the following: (i)
distribute, sell, assign, transfer, or sublicense the Incidental
Software, or any part thereof, to any third party; (ii) except
as specifically set forth in this Agreement, adapt, modify,
translate, reverse engineer, decompile, disassemble, or create
derivative works based on the Incidental Software or any part
thereof; (iii) copy the Incidental Software, in whole or in
part,
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without
including appropriate copyright notices; (iv) except for
providing banking services to Customer’s customers, use the
Incidental Software in any manner to provide Service Bureau, time
sharing, or other computer services to Third Parties;
(v) export the Incidental Software outside the United States,
either directly or indirectly; and/or (vi) install the
Incidental Software on a different platform or interface the
Incidental Software to an application written in a different
computer language other than that set forth in the Documentation.
Within 10 days of the Effective Date of Termination, Customer
shall, at its own expense, return the Incidental Software to
Metavante and/or destroy all copies thereof.
4.1. Initial
Services . Metavante agrees to provide Services as set forth in
the Schedules listed on the first page of this Agreement as of the
Effective Date.
4.2
Professional Services . Metavante shall perform the
Professional Services for Customer as set forth in the Services and
Charges Schedule and shall perform additional Professional Services
as mutually agreed upon by the parties from time to time under this
Agreement, provided that either party may require execution of a
separate mutually acceptable professional services agreement prior
to Metavante’s performance of Professional Services other
than those set forth in the Services and Charges
Schedule.
4.3 Service
Levels . Service Levels, if any, relating to a particular
Service shall be as set forth in the Service Level Schedule. The
parties agree that Metavante’s performance of Services at a
level at or above any Service Level shall be satisfactory
performance, provided that this sentence shall not be deemed to
modify or reduce any of Metavante’s other obligations or
warranties pursuant to this Agreement. Metavante shall cure any
failure to achieve a Service Level within the period specified
within the applicable schedule. Remedies, if any, for failure to
achieve a Service Level shall be as set forth in the Service Level
Schedule.
4.4 EFD
Services . The following additional terms shall apply with
respect to the EFD Services. The EFD Services are those Services
provided by Metavante to support Customer’s on-line and
off-line debit and credit card products.
A.
Network Rules and Responsibilities . “Network”
shall mean a shared system, operating under a common name, through
which member financial institutions are able to authorize, route,
process, and settle transactions (e.g., MasterCard and Visa).
Customer acknowledges and agrees that Customer must obtain required
memberships in all applicable Networks and, upon Metavante’s
request, shall provide Metavante with copies of its fully executed
membership agreements. Customer shall comply with the articles,
bylaws, operating regulations, rules, procedures, and policies of
all Networks, as applicable to its operations, and shall be solely
responsible, as between Customer and Metavante, for any claims,
liabilities, lawsuits, and expenses arising out of or caused by
Customer’s failure to comply with the same. Customer
acknowledges and agrees that, because Metavante is Customer’s
processor, Metavante may receive certain services from MasterCard,
Visa, and/or other Networks that Customer could receive directly in
the event Customer performed the processing services for itself.
Customer agrees that Metavante may pass through to Customer any
fees charged to Metavante for such
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services and
that Metavante has no responsibility or liability to Customer for
any such services. Prior to the transfer of the EFD Services to
Customer or its designee upon the Effective Date of Termination,
Customer shall take all actions required by the applicable Network
to effect the transfer. In addition to the charges specified on the
Fee Schedule, Customer shall be responsible for (i) all
interchange and network provider fees; (ii) all dues, fees,
fines, and assessments established by and owed by Customer to any
Network; and (iii) for all costs and fees associated with
changes to ATM protocol caused by Customer’s conversion to
the EFD Services.
B.
Card Production Services . Delivery of cards will be deemed
complete with respect to any order upon Metavante’s delivery
of the supply of cards to either the United States Post Office, a
common carrier or courier, or Customer’s designated employee
or agent. Following delivery of the cards in accordance with the
foregoing, the card production services with respect to such order
shall be completed, and Metavante shall have no further
responsibility whatsoever for any use, abuse, loss, damage,
alteration, or theft of cards following delivery. Metavante shall
be responsible to produce cards in conformance with applicable
network standards and for the proper preparation of mailers (e.g.,
sealing and addressing). Customer shall notify Metavante in writing
of any alleged breach of the foregoing by Metavante.
Metavante’s sole responsibility, and Customer’s sole
remedy, shall be to provide, at Metavante’s expense, a
conforming replacement card to the appropriate
cardholder(s).
C.
Verification and Notice . Customer shall notify Metavante of
any data entry errors, including any unauthorized transactions, new
accounts, new files, or unauthorized amounts, within thirty
(30) days of the date of the applicable Metavante report.
Customer’s failure to notify Metavante of errors or
discrepancies within such thirty (30)-day period shall constitute
Customer’s agreement that it has reviewed and approved the
content of each such report using proper internal control review
procedures. Metavante does not guarantee that the Services will be
one hundred percent (100%) error-free or that the variables and
options selected and approved by Customer will produce a result,
which is problem-free and otherwise meets the expectations of
Customer. The only responsibility Metavante shall have with regard
to (i) data entry errors and other similar human errors which
occur in the usual course of business and (ii) unsatisfactory
data processing results caused by options and variables selected or
approved by Customer is, respectively, to correct such errors as
they are discovered and to assist Customer in revising data
processing options and variables to achieve a satisfactory
result.
D.
Settlement . Customer acknowledges and agrees that, where
Metavante processes a transaction for a stored value card, debit
card, or credit card issued by Customer, Customer is either
obligated to pay the amount of the transaction, or Customer is
entitled to receive the amount of the transaction under applicable
Network rules. Customer authorizes Metavante to receive or pay, as
applicable, any such amounts due to or payable by Customer.
Metavante shall daily determine the “Net Settlement”
for Customer. “Net Settlement” means the net amount
payable to Customer by Metavante, or the net amount payable to
Metavante by Customer, as applicable, for transactions settled for
Customer by Metavante with Networks, and/or other financial
institutions, including Customer’s Affiliates, in accordance
with applicable Network operating rules. Customer shall maintain an
account with a settlement bank for purposes of funding or receiving
Net Settlement, as applicable, and authorizes Metavante to charge
the settlement account via ACH debit or otherwise for any Net
Settlement owed by
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Customer to
Metavante, and to deposit to the settlement account any Net
Settlement owed by Metavante to Customer. Customer shall, upon
Metavante’s demand, pay to Metavante any Net Settlement that
Metavante is unable to collect from the settlement account for any
reason. Metavante will provide Customer with daily settlement and
accounting information, and Customer agrees that Customer is
responsible for the daily maintenance and reconciliation of all
accounting entries. Metavante shall monthly determine the average
monthly Net Settlement payable by Customer to Metavante, if any.
Customer agrees to reimburse Metavante for its cost of funds in the
amount determined by multiplying Customer’s average monthly
Net Settlement payable by the then-published prime rate of M&I
Marshall & Ilsley Bank. For at least 120 days following
the Effective Date of Termination, Customer shall maintain a
settlement account with Metavante or the depository institution
designated by Metavante which Metavante may charge to settle any
trailing activity which accrues prior to the Effective Date of
Termination and which is not known to Metavante until sometime
thereafter (including any chargeback of a transaction which is
authorized prior to the Effective Date of Termination). Customer
shall pay to Metavante fees at Metavante’s then-current
standard rates to settle such trailing activity.
E.
Credit Card Operations .
(i) Customer
is responsible for all risks (including risk of credit losses,
fraud losses, counterfeit losses, and fees and fines for
noncompliance with laws, regulations, or Visa/MasterCard rules) and
funding for the operation of its credit card programs, and for all
operating expenses and charges, whether or not itemized. Metavante
will provide Customer with certain reports (some in paper form,
some in microfiche form, and/or some available on-line or through
some other electronic media), including management reports, but
Customer is responsible to review, monitor, and act upon
information in such reports to minimize and control risks, losses,
fees, and fines. Metavante may assist Customer in establishing such
credit scoring or approval criteria, but Customer is responsible
for establishing and applying credit and other approval criteria in
accordance with all governing laws, rules, and regulations.
Customer shall be responsible to furnish and pay for all forms and
documents used by Customer and shall be solely responsible for the
compliance of such forms, documents, and procedures with the
operating requirements of Metavante, Visa and MasterCard rules and
operating regulations, and applicable federal, state, and local
laws and regulations. Metavante may provide sample forms,
documents, and procedures to Customer for information purposes, but
Metavante makes no warranty or representation as to the legality or
accuracy of such forms, documents, or procedures. Customer is
responsible to retain originals and/or records of any and all
documentation relating to its cardholders and merchants as required
under applicable record retention laws and regulations. All credit
card and/or merchant accounts of Customer now in existence and
those added during the Term are and shall be the sole property of
Customer; however, Customer shall not sell, assign, transfer or
convey any of such accounts, or any rights, proceeds, claims or
collateral thereunder, to any Third Party without either
termination of this Agreement or the prior written consent of
Metavante.
(ii) Customer
authorizes Metavante and grants to Metavante power-of-attorney to
endorse any and all checks payable to Customer which are received
by Metavante in payment of credit card accounts for which Metavante
provides payment processing services.
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(iii) Customer
may request that Metavante make available to Customer’s
credit card cardholders checks or drafts which the cardholders may
use to draw on their credit card account (“Credit Card
Checks”). Any Credit Card Checks made available by Metavante
to one of Customer’s credit card cardholders shall be payable
through such bank (the “Payable Through Bank”) as
Metavante shall designate in its sole discretion. Customer agrees
that neither Metavante nor the Payable Through Bank shall have any
responsibility to review or verify the signature of the drawer of
any Credit Card Check. Customer agrees to indemnify and hold
harmless Metavante and the Payable Through Bank from, defend
Metavante and the Payable Through Bank against, and pay any final
judgment against Metavante or the Payable Through Bank for any and
all claims, damages, costs, expenses (including reasonable
attorney’s fees), and liabilities relating to the Payable
Through Bank’s payment or refusal to pay any Credit Card
Checks, including any liability of the Payable Through Bank as the
payor bank under Regulation CC of the Federal Reserve Board or
under the Uniform Commercial Code.
4.5 Electronic
Banking Services . The following additional terms shall apply
with respect to the Electronic Banking Services. The Electronic
Banking Services are (a) Metavante’s Internet and
telephone banking services that enable Customer’s consumer
and/or commercial depositors and other customers (“End
Users”) to access, receive, collect, concentrate, and/or
report data and/or initiate transactions via a personal computer or
telephone, (b) Metavante’s consumer payment provider
services (“CPP Services”) that enable End Users to
remit payments to payees located within the United States scheduled
up to 364 days in the future, and/or recurring weekly,
bi-weekly, monthly, bi-monthly, semi-monthly, quarterly,
semi-annually, or annually (if and as available), and
(c) Metavante’s consumer service provider services
(“CSP Services”) that enable Customer to provide
Web-based bill consolidation and presentment services via a branded
Website.
A.
Access . Customer shall comply with Metavante’s
requirements for making the Electronic Banking Services operational
and available for Customer’s and/or Customer’s End
Users. Customer agrees that Metavante is under no obligation to
provide any End User with access to the Electronic Banking Services
unless and until Customer has provided Metavante with all
information and documentation required by Metavante for End User
set-up.
B.
End User Agreements . Customer shall be solely responsible
for contracting with, and managing the relationship with, End Users
of the Electronic Banking Services and for obtaining all necessary
End User authorizations and consents. Metavante will not have a
contractual relationship with End Users, and so must rely upon
Customer to manage liability and risk issues. Customer will include
appropriate provisions in its End User agreements regarding, and
shall indemnify Metavante against, defend Metavante against, and
hold Metavante harmless from claims arising from: (a) any End
User’s use of or inability to use the Electronic Banking
Services, specifically including, without limitation, any End
User’s claim for economic loss or damages arising from the
End User’s use of the Internet Banking Services or Bill
Payment Services; (b) transactions effected with a lost, stolen,
counterfeit or misused access code or identification number issued
by Customer to any End User. Customer and its End Users shall be
responsible for selecting and safeguarding their passwords for
using the Electronic Banking Services. As between Customer and
Metavante, any use of the Electronic Banking
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Services
through use of a valid password shall be authorized use, provided
that Metavante will cancel or disable passwords promptly following
notification from Customer.
C.
ACH Services . In providing ACH services for Customer,
Metavante acts as Customer’s third-party service provider and
is not itself an “Originator,” “ODFI,” or
“RDFI” (as defined under NACHA rules). Customer shall
be responsible for compliance with all applicable laws, rules, and
regulations regarding Customer’s use of and/or access to the
ACH services, including applicable rules and regulations of the
National Automated Clearing House Association
(“NACHA”). In particular and as applicable, Customer
will provide its depositors with all disclosures required under
state and federal law, as then required by applicable law or NACHA
rules. Customer shall indemnify Metavante from, defend Metavante
against, and hold Metavante harmless from any and all loss, claim,
or liability to any Third Party from Customer’s breach of the
foregoing obligations. Upon notification from Customer of the
occurrence of an error or omission with respect to an ACH entry,
Metavante shall promptly furnish corrected ACH entry(ies) to the
applicable ACH operator, unless the NACHA rules prohibit the
processing of the correct ACH entry(ies). Metavante’s
liability to Customer for claims arising out of the ACH services
performed by Metavante pursuant to this Agreement shall be limited
to the processing of appropriate corrected ACH
entry(ies).
D.
Bill Payment Services .
(i) Customer
understands that it is fully responsible for the availability of
good funds necessary to settle the payment activities of its End
Users initiated through the use of the Electronic Banking Services.
Metavante shall either initiate debit ACH entries or paper drafts
against each End User’s designated account for bill payment
activities initiated by the End User, or shall charge
Customer’s designated settlement account to fund such
payments. Customer is and shall remain solely and exclusively
responsible to Metavante for the entire amount of any payment
processed for and on behalf of an End User which is not funded due
to insufficient funds in the applicable settlement account or for
any other reason outside Metavante’s control. Customer shall
reimburse Metavante for any amounts that Metavante determines, in
its sole discretion, to be uncollectable from the End User.
Metavante shall not be responsible for losses associated with
payments to, or at the direction of, government agencies,
organizations and institutions, or court directed payments.
Customer shall be exclusively responsible for and, upon
Metavante’s demand, reimburse Metavante for, the amount of
any such payments which Metavante reasonably believes it cannot
collect from the End User for any reason.
(ii) Customer
authorizes and directs Metavante to contact payees and End Users
with respect to payments processed by Metavante. All payee data and
Metavante’s payee database shall be Metavante’s
property which may be used by Metavante without limitation for
purposes of maintaining and providing “pay anyone” bill
payment services for its customers. Metavante shall have the right
to remit, stop, cancel, and manage payments and ACH re-issuance and
returns as deemed most reasonable by Metavante. Metavante may set
an expiration date for payment checks. From time to time, Metavante
may contact End Users to recover payment errors (common sources of
payment errors include: Incorrect recipient (payee), delivered
incorrectly by the postal service, consolidation error directed the
payment to an
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incorrect
party; stop payment request honored and funds re-credited to End
User’s Billable Account, but the check was paid; Metavante
error; or duplicate payment made to payee). In the case of payment
errors, Metavante will always contact the payee first to attempt
direct retrieval of the funds. If Metavante is unable to retrieve
the funds and the End User received benefit of the payment,
Metavante may seek reimbursement from the End User.
E.
Transferred Data . In the event that Customer transfers data
from another service provider to Metavante to convert
Customer’s end users to Metavante’s systems, Metavante
will not be responsible for any errors, delays, or problems in
providing the Services that arise from the quality, reliability, or
currency of the transferred data, including, without limitation,
late fees for payments that are delayed due to the conversion of
inaccurate or outdated payee data. In addition, Customer shall
reimburse Metavante, at Metavante’s then-current rates for
professional services, for any additional work that Metavante must
perform to address claims or support arising from errors or
inadequacies of transferred data.
A.
General . “ACH Services” means Services whereby
Metavante will (i) initiate and/or receive automated clearing
house debit and credit entries, and adjustments to debit entries
and credit entries to Customer’s account, (ii) credit
and/or debit the same to such account. Customer authorizes
Metavante to act as Customer’s third-party processor for
initiating, transmitting, and/or receiving ACH entries. If agreed
to between Customer and Metavante, Metavante shall provide for the
posting of ACH entries to Customer deposit accounts. Metavante
shall provide reports to Customer showing errors and rejections
resulting from ACH entries transmitted on behalf of Customer during
a particular day. It shall be Customer’s responsibility to
review such reports and correct erroneous ACH entries.
B.
Timing . Metavante shall make reasonable efforts to deliver
ACH entries to Customer or to an ACH operator, as appropriate,
prior to any applicable deadline for such delivery. Metavante does
not guarantee timely delivery. Metavante shall have no liability to
Customer as a result of any late delivery, except to the extent
such late delivery is (i) caused by the willful misconduct of
Metavante, and (ii) made more than 24 hours after its
scheduled deadline.
C.
NACHA Rules . In providing ACH Services for Customer,
Metavante acts as Customer’s third-party service provider and
is not itself an “Operator,” “Originator,”
“ODFI,” or “RDFI” (as defined under NACHA
rules). Customer shall be responsible for compliance with all
applicable laws, rules, and regulations regarding Customer’s
use of and/or access to the ACH Services, including applicable
rules and regulations of the National Automated Clearing House
Association (“NACHA”). In particular and as applicable,
(i) Customer will provide its depositors with all disclosures
required under state and federal law and (ii) shall enter into
an agreement with each party that will initiate ACH entries to
accounts (an “Originator”) prior to permitting the
Originator to initiate ACH entries, as then required by law or
applicable NACHA rules. Customer shall indemnify Metavante from,
defend Metavante against, and hold Metavante harmless from any and
all loss, claim, or liability to any Third Party from
Customer’s breach of the foregoing obligations. Upon
notification from Customer of the occurrence of an error
or
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omission with
respect to an ACH entry, Metavante shall promptly furnish corrected
ACH entry(ies) to the applicable ACH operator, unless the NACHA
rules prohibit the processing of the correct ACH entry(ies).
Metavante’s liability to Customer for claims arising out of
the ACH Services performed by Metavante pursuant to this Agreement
shall be limited to the processing of appropriate corrected ACH
entry(ies).
5.1 Fee
Structure . Customer agrees to pay fees for the Initial
Services as set forth in the Services and Charges Schedule. If
Customer elects to receive Services that are not specifically set
forth in the Services and Charges Schedule, Customer agrees to pay
fees as mutually agreed upon for such Services.
5.2 Pricing and
Operational Assumptions . ( Intentionally omitted
)
5.3 Excluded
Costs . The fees set forth in the Services and Charges Schedule
do not include Expenses, late fees or charges, or Taxes, all of
which shall be the responsibility of Customer.
5.4 Disputed
Amounts . If Customer disputes any charge or amount on any
invoice and such dispute cannot be resolved promptly through
good-faith discussions between the parties, Customer shall pay the
amounts due under this Agreement minus the disputed amount, and the
parties shall diligently proceed to resolve such disputed amount.
An amount will be considered disputed in good faith if
(i) Customer delivers a written statement to Metavante, on or
before the due date of the invoice, describing in detail the basis
of the dispute and the amount being withheld by Customer,
(ii) such written statement represents that the amount in
dispute has been determined after due investigation of the facts
and that such disputed amount has been determined in good faith,
and (iii) all other amounts due from Customer that are not in
dispute have been paid in accordance with the terms of this
Agreement. In the event Customer notifies Metavante of a supposed
billing error following payment of an invoice, the parties will
work together in good faith to resolve the error.
5.5 Terms of
Payment . Any and all amounts payable under this Agreement
shall be due thirty (30) days following the date of invoice,
unless otherwise provided in the Services and Charges Schedule.
Undisputed charges not paid by the applicable due date shall be
subject to annual interest at the rate of 12% or the highest rate
permitted by law, whichever is lower. Customer is not required to
pay monthly fees for Services it is not then receiving under the
Agreement. Customer shall also pay any collection fees, court
costs, reasonable attorneys’ fees, and other fees, costs, and
charges incurred by Metavante in collecting payment of the charges
and any other amounts for which Customer is liable under the terms
and conditions of this Agreement. Customer agrees to maintain a
depository account with a financial institution reasonably
acceptable to Metavante for the payment of amounts payable
hereunder and hereby authorizes Metavante to initiate debit entries
to such account for the payment of amounts payable hereunder.
Customer agrees to provide Metavante with any and all information
necessary for Metavante to initiate such debit entries via the
Automated Clearing House (ACH) system.
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5.6
Modification of Terms and Pricing . Provided total revenue
(less pass through fees and one time fees) paid to Metavante for
Services provided in a calendar year increases by a minimum of
seven percent (7%) over the previous calendar year’s revenue
paid to Metavante, Metavante will waive the annual increase for the
applicable year. In the event at least seven percent (7%) growth is
not achieved, charges for all Services shall be subject to annual
adjustments which shall not exceed, in aggregate effect, the lesser
of (i) an annual rate of two percent (2%), or (ii) the
change to the Employment Cost Index over the applicable
period.
6.
PERFORMANCE WARRANTY/DISCLAIMER OF ALL OTHER
WARRANTIES
6.1 Performance
Warranty . Metavante warrants that it will provide all Services
in a commercially reasonable manner in material conformance with
the applicable Documentation (the “Performance
Warranty”). Where the parties have agreed upon Service Levels
for any aspect of Metavante’s performance, such Service
Levels shall apply in lieu of the Performance Warranty. THIS
PERFORMANCE WARRANTY IS SUBJECT TO THE WARRANTY EXCLUSIONS SET
FORTH BELOW IN SECTION 6.2.
6.2 Performance
Warranty Exclusions . Except as may be expressly agreed in
writing by Metavante, Metavante’s Performance Warranty does
not apply to:
A.
defects, problems, or failures caused by the Customer’s
nonperformance of obligations essential to Metavante’s
performance of its obligations; and/or
B.
defects, problems, or failures caused by an event of force
majeure .
6.3 DISCLAIMER
OF ALL OTHER WARRANTIES . THIS PERFORMANCE WARRANTY, AND THE
WARRANTIES IN ARTICLE 6 HEREOF, ARE IN LIEU OF, AND METAVANTE
DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR
REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT
TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT METAVANTE
KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN
FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW,
BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING.
IN ADDITION, METAVANTE DISCLAIMS ANY WARRANTY OR REPRESENTATION TO
ANY PERSON OTHER THAN CUSTOMER WITH RES
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