EXHIBIT 10.8
WIRE TRANSFER SERVICE AGREEMENT
THIS WIRE TRANSFER SERVICE AGREEMENT (this
"Agreement") is made and entered into
as of this 26th day of June, 2002 by and between BRIDGE BANK OF
SILICON VALLEY,
N.A. ("Client"), and BServ, Inc., a Nevada
corporation ("BankServ").
RECITALS
A. Client is a
[commercial bank], and accordingly, is permitted to initiate
and receive wire transfer transactions using the Federal Reserve Bank wire
transfer system.
B. BankServ has developed and licenses a software,
communications
and
electronic data base system (the "BankServ
System") for initiating and receiving
wire transfer transactions ("Wire Transfer
Transactions") as more
particularly
described in Exhibit A (the
"Services").
C. Client and
BankServ desire that Client utilize BankServ and the BankServ
System to process all of Client's Wire
Transfer Transactions.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as
follows:
1. APPOINTMENT
OF BANKSERV. Client
hereby appoints BankServ to utilize the
BankServ System as Client's exclusive
provider of wire transfer origination and
wire transfer receiving services;
provided, however, that Client shall retain
its own FedLine terminal as a backup
system. Client shall
be solely responsible
for BankServ's charges for the Services.
The specifications of the Services
shall be as set forth on Exhibit A.
2. CHARGES.
Client shall pay BankServ the prices set forth on Exhibit B per
transaction multiplied by the quantity of
such services performed by BankServ as
recorded by BankServ's computer system which shall be presumed to be
correct
absent demonstrable error. Client shall pay monthly all amounts payable by
automatic electronic transfer to BankServ initiated by
Client on or before the
thirtieth (30th) day of each calendar month for all services performed by
BankServ during the immediately preceding
calendar month, and thereafter default
interest shall accrue at the rate of 1-1/2%
per month, compounded monthly. Bills
shall be submitted by mail after the end of each calendar month, detailing
volumes and corresponding transaction
pricing. Client shall also pay BankServ an
amount equal to any taxes paid or payable
by BankServ
(other than taxes
based
upon BankServ's net income)
however designated, levied or based on the fees,
services, products or technical information provided by BankServ pursuant to
this Agreement. At the end of the Initial
Term as defined below, and any Renewal
Term(s), BankServ may revise its per
transaction charges by notifying the Client
in writing at least one hundred twenty (120) days prior to the change
taking
effect. BankServ may increase its per
transaction
charges based on any
direct
pass through cost increases it incurs in providing such services to Client;
provided however, that any such increase shall
permit Client to terminate this
Agreement upon sixty (60) days notice if
made within sixty (60) days after such
increase. Additionally, if a price revision
is made in addition to pass through
costs and results in an increase to the per
item cost, such increase shall occur
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only one time annually and the percentage
increase shall not exceed the Consumer
Price Index for the twelve (12) month period immediately prior to the
price/charge revision.
3. TERM AND TERMINATION. This Agreement shall have an initial term
("Initial Term") of five (5) years
from the date that the
BankServ System is
operational with respect to Client
("Commencement
Date"), which term shall be
automatically extended for ten (10) successive one (1) year terms (each a
"Renewal Term"); provided, however, that either party may terminate this
Agreement at any time after the Initial
Term without cause and without breach of
this Agreement upon one hundred twenty (120) days prior written notice and
further provided that either party may
terminate this Agreement upon thirty (30)
business days' notice at any time if the other party is in breach of this
Agreement and, provided such breach is
susceptible to cure
within thirty (30)
business days, has not cured such breach
within thirty (30) business days after
written notice with respect thereto specifying such breach is sent to the
breaching party. [REMOVED AS BSERV IS REQUIRED TO
COMPLY WITH FRB REGS AND ANY
OTHER BREACH WOULD FALL UNDER BREACH
SCENARIO SPECIFIED ABOVE]. Notwithstanding
anything to the contrary contained herein,
BankServ may terminate this Agreement
on thirty (30) business days' notice to
Client if Client is delinquent in making
any payment due hereunder and has not cured
such payment default within five (5)
business days after BankServ's written notice with respect
thereto. The
Client
may also terminate this agreement upon thirty (30) days
notice without cause,
provided that if such termination occurs prior to the end of the
Initial Term,
Client shall pay to BankServ an amount equal to the Termination Payment
Structure set forth in Exhibit B.
4. CONTINGENT UPON
REGULATORY APPROVAL.
The parties hereto acknowledge and
agree that this Agreement is contingent upon any required governmental
regulatory approval. Each party agrees to make
reasonable efforts to secure all
necessary governmental and regulatory approvals. In the event all necessary
regulatory approvals are not obtained,
this Agreement shall
terminate and be of
no further force or effect. If at any time during the Initial Term or any
Renewal Term, governmental and regulatory
authorities withdraw
their approval,
and their approval cannot be regained in a
reasonable time, then
this Agreement
shall terminate and be of no further force
and effect.
5. HARDWARE AND
COMMUNICATIONS SERVICES. Client shall be solely responsible
for (I) its own data processing and
transmission equipment
(see Requirements in
Exhibit 0) and (ii) establishing and maintaining its
data communication
lines
and equipment necessary to transport data between Client's equipment and
BankServ's equipment.
6. IDENTIFICATION NUMBERS AND
PASSWORDS. Access to
BankServ from Client's
remote terminals shall be available only through the use of one or more
identification numbers and passwords
assigned and validated by BankServ prior to
the Commencement Date and Client's use of
the Services. Once such identification
number(s) and password(s) have been
assigned and validated by BankServ, the use
and confidentiality of such numbers and passwords by Client shall be the
sole
responsibility of Client in additional to the mutually agreed upon security
procedures of each party as set forth in
Section 7 below. BankServ may refuse to
process any data that in BankServ's opinion is not of a quality
suitable for
processing or does not comply with BankServ's applicable standards and
procedures. BankServ shall use its best efforts to contact Client when data
input by Client does not comply with input
requirements of the
BankServ system,
although BankServ shall expressly not be
responsible therefore.
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7. SECURITY
PROCEDURES. Client shall properly use such security procedures
that are reasonably sufficient to ensure that all
transmissions of data
to the
BankServ System are authorized and to
protect its business records and data from
any improper access. BankServ does not
assume any responsibility to discover any
possible breach of Client's security; provided, however, that if BankServ
discovers any such breach, it shall promptly notify Client. Client shall
immediately notify BankServ if it discovers any breach of security of the
BankServ System. Client shall indemnify and hold
BankServ harmless
against any
liability, loss, damage, cost or expense
(including reasonable attorneys' fees)
resulting from (i) Client's or any of
Client's employees,
Client's agents or
representatives' breach of security for the
BankServ System and (ii) any and all
of such parties' unauthorized uses of the BankServ System. BankServ shall be
responsible for any liability, loss or damage resulting from intentional
breaches of security by BankServ and its
employees.
8. CLIENT OBLIGATIONS. Client represents, warrants and covenants to
BankServ that it shall:
(a) FRAUD PREVENTION. Take commercially reasonable measures to prevent
fraud by Client, its employees, agents and customers;
(b) DATA VERIFICATION. Be responsible
for inputting all data and verifying
the accuracy of all data so entered;
(c) DATA FORMAT. Provide at a
reasonable time and in such format as may be
reasonably requested
by BankServ all other data or information
reasonably required by BankServ to perform the Services
hereunder;
(d) CONFIDENTIALITY. Preserve the confidentiality of any identification
numbers and passwords assigned and validated by BankServ;
(e) NOTIFICATION OF SECURITY BREACH. Notify BankServ if it discovers a
breach of BankServ's security;
(f) COMPLIANCE WITH LAWS AND
REGULATIONS.
Comply with
applicable
laws,
regulations and rules, including without limitation, the rules of the
Federal Reserve Bank; and
(g) COMPLY WITH BANKSERV RULES. Comply with BankServ's rules and
regulations for uses
of the services, as
BankServ may establish from
time to time.
9. EXCLUSIVITY.
BankServ's pricing is
based upon Client's exclusive use of
BankServ for all Services; accordingly,
Client agrees to use and hereby appoints
BankServ as the exclusive provider of
Services to Client during the Initial Term
and any Renewal Term hereof.
10. CUSTOMER
SERVICE. BankServ
shall during the hours set forth on Exhibit
A maintain and staff a Continental
United States
toll-free telephone
line from
which BankServ shall use its best efforts to answer the questions of Client
employees, agents and representatives who
intend to utilize the Services.
11. TITLE TO
PROPERTY, KNOW-HOW AND INTELLECTUAL PROPERTY; NONDISCLOSURE OF
TRADE SECRETS; CONFIDENTIALITY.
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a. Title. All systems,
programs, operating instructions,
documentation
and know how utilized in or by the BankServ System shall be and
remain
the exclusive
proprietary
property of
BankServ. All information,
customer data,
and other proprietary information of Client shall
remain the exclusive proprietary property of Client
b. Each party will keep
strictly confidential
all information
regarding
the other party's business, customers, affairs, technology, systems,
programs, operating instructions, documentation, and know how
utilized
in or by the BankServ System learned in connection with this
Agreement
or the transactions contemplated by it (the TMConfidential
Information").
Each party
shall use the other's Confidential
Information only in
the performance
of its obligations under this
Agreement, shall
disclose such
Confidential
Information within
its
organization only to
those employees
who need to know it to
perform
its obligations and shall not disclose such Confidential Information
to any third party.
Each party shall take all measures (by agreement,
instruction or
otherwise)
reasonably
necessary
to protect the
confidentiality of such Confidential Information and limit use of
and
access to such
Confidential
Information to conform
to the express
terms of this Agreement, including, without limitation, each party
shall take the same care in handling the Confidential Information
from
the other party as it would in the handling of its own data, but in
no
even shall such
party use less than a
reasonable
degree of care in
instructing its
employees regarding its obligations under this
Agreement. To the extent that BankServ has access to, and Licensee
may
provide BankServ
with information and/or documentation about
Licensee's customers,
(`Customer Information"), BankServ agrees that
all such Customer
Information shall be
held in strict confidence and
disclosed only to those employees, agents or service providers whose
duties reasonably require access to such information. BankServ may
use
such Customer
Information
only in connection
with its performance
under the Agreement, or as expressly permitted in the Agreement.
Upon
expiration or termination of this Agreement, each party shall, at its
own expense,
immediately return to the other party or destroy if such
party so requests, all confidential information of the other in
written or recorded form, and shall certify such return or
destruction
in a writing signed by one of its officers. If BankServ or any of its
employees or
agents shall attempt to use or dispose of any such
Customer Information
in a manner other than
as expressly
permitted
hereunder, Client
shall have the right,
in addition to such other
remedies to
injunctive
relief enjoining such use, disposition,
attempted use or attempted disposition, it being acknowledged that
legal remedies are inadequate to protect Client. Notwithstanding the
foregoing, no
obligation of
confidentiality
shall attached to any
information
which is (a) generally known to the public, (b)
independently
developed by either party without reliance on the trade
secrets and/or confidential information provided by the other party
or
(C) independently
acquired from sources who have no
obligation
of
confidentiality.
c. If either of the parties are
legally compelled
(whether deposition,
interrogatory, request
for documents,
subpoena, civil investigation,
demand or similar process) to disclose any of the Confidential
Information (including
the fact that
discussions or negotiations are
taking place with
respect to the
Transaction) the
compelled party
shall
immediately
notify the
other party in writing of such
requirements so that
the noncompelled
party may seek a protective
order or other
appropriate remedy
and/or waive
compliance with
the
provisions hereof. The compelled party will use all reasonable
efforts
at the non-compelled party's expense, to obtain or assist the
non-compelled party in
obtaining any such protective order. Failing
the entry of a protective order or the
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receipt of a waiver
hereunder,
the compelled party may disclose,
without liability
hereunder, that
portion (and only that portion) of
the Confidential Information that the compelled party has been
advised
by opinion of counsel reasonably acceptable to the other party that
it
is legally compelled
to disclose; provided
that the compelled
party
agrees to use all reasonable efforts to obtain assurance that
confidential treatment will be accorded such Confidential
Information
by the person to whom it was disclosed.
12. WARRANTY; LIMITATION ON LIABILITY.
BankServ shall
maintain a back-up
server to its primary server to reduce the risk of delays as a result of
equipment malfunction. BankServ agrees to employ due care
and attention in the
preparation and maintenance of its programs
and in performing the Services, but
BankServ is a service bureau, not an
insurer. Accordingly,
Client
acknowledges
that data processing entails the risk of human and
machine errors,
omissions,
delays and losses, including inadvertent loss or
misstatement of data which may
give rise to loss or damage. Accordingly,
Client agrees that except as otherwise
specified in Exhibit A attached
hereto_[[ls
there anything on Exhibit A about
this is OUR REFERENCE TO EX. A RELATES TO THE
FACT THAT WE WARRANT OUR SOFTWARE
TO PROVIDE THE SERVICES IN THE MANNER
DESCRIBED THERE. Ex A should state that
BankServ is required to correct errors and
omissions in processing transfers]],
BANKSERV SHALL NOT BE LIABLE FOR ANY
ERRORS, OMISSIONS,
DELAYS OR LOSSES UNLESS
CAUSED BY BANKSERV'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
IN NO EVENT SHALL
BANKSERV BE LIABLE FOR DIRECT, INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES. IN NO
EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF BANKSERVTO THE CLIENT
FOR ANY AND
ALL CLAIMS, LOSSES OR DAMAGES ARISING UNDER
THIS AGREEMENT OR SERVICES PERFORMED
HEREUNDER FOR ANY CLIENT CUSTOMER EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO
BANKSERV DURING THE PRECEDING MONTH, EVEN IF BANKSERV HAS BEEN ADVISED
OF THE
POSSIBILITY OF SUCH POTENTIAL CLAIM, LOSS
OR DAMAGE. THE foregoing limitation of
liability and exclusion of certain damages
shall apply regardless of the success
or effectiveness of other remedies.
Notwithstanding
Section 13, below, BankServ
shall not be responsible for delays in receipt of Client
information,
or for
delays in processing of Client information because of causes beyond its
reasonable control, including, without limitation, equipment malfunction,
limitations on the availability of
telephone or other
transmission
facilities,
failures of communications equipment, or
Client's failure to properly format and
transmit information. BankServ shall also not be
responsible for errors in data
entry or other services, programs, hardware, data files, or
output provided to,
or maintained for, Client resulting from errors in Client's
input data or from
Client's failure to comply with the terms
and conditions of this Agreement. in
the event that the Licensed Software as described in Section 15, fails to
perform pursuant to specifications, as Client's sole and exclusive remedy,
BankServ will, at its option, either (i) provide software support services
necessary to correct material errors reported to BankServ in
writing by Client
and which BankServ is able to reproduce, or (ii) terminate this Service
Agreement and the sublicense granted hereunder (unless Client waives its
remedies with respect to such defect).
THE FOREGOING
WARRANTY OF THE
LICENSED
SOFTWARE IS IN LIEU OF ALL OTHER WARRANTIES
AND CONDITIONS,
EXPRESS OR IMPLIED.
BANKSERV SPECIFICALLY DISCLAIMS ALL OTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES RELATING TO QUALITY, PERFORMANCE,
INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
USE RELATED TO THE
LICENSED SOFTWARE AND DOCUMENTATION.
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13. FAILURE TO MEET SPECIFICATION. In the event that for any
particular
calendar date BankServ does not meet or
exceed the
specification for timeliness
of Wire Transfer Transactions set forth in Exhibit A, which are under its
control-as described:-in .Section 16(k), BankServ shall waive all of its
fees
otherwise payable by Client to BankServ for
the Services performed
by BankServ
during such calendar day,
14.
INDEMNIFICATION. Client shall defend and indemnify BankServ and
hold ii
harmless against any and all liability, loss, damages, costs or expenses
(including court costs and reasonable attorneys fees) arising as a result of
Client's breach of its warranties, representations, covenants or obligations
under this Agreement or the activities of any of Client's customers in
connection with the receipt of the Services, including without limitation,
unauthorized disclosure of BankServ
Information,
unauthorized use or disclosure
by any person having authorized access to the information and data related
to
the Licensed Software or Documentation as described in Section 15 below,
any
fraud committed by Client or its customers,
employees, agents or representatives
or any credit failure of Client or any act
of third parties under the control or
direction of BankServ and any failure of Client to obtain a requested
authorization executed by Client's customer authorizing a Wire Transfer
Transaction; PROVIDED, HOWEVER, BankServ shall indemnify
Client and shall hold
it harmless from any loss or damage
arising as a result of
BankServ's
gross
negligence or willful misconduct in connection
herewith. Accordingly, Client
agrees that (i) in the event of breach or
attempted or threatened breach of the
Software License grant by Client or a
sublicensee, BankServ
may terminate this
Agreement immediately, and (ii) in the event a court of
competent jurisdiction
determines that Client and/or sublicensee has breached or attempted or
threatened to breach any of the terms of this Agreement or the Sublicense
Agreement attached hereto as EXHIBIT C,
Licensee will consent to the entry of an
injunction against it without the need for BankServ to make a showing of
irreparable harm. This obligation imposed on the Client and BankServ
and the
rights conferred upon BankServ and the Client by this
section shall not be
extinguished upon termination of this Agreement or
the license hereby granted,
but shall be and remain continuing
obligations of Client.
15. SOFTWARE
LICENSE. BankServ grants to Client as Licensee,
during the
term of this Agreement, a nonexclusive,
royalty-free,
non-transferable
license
to use all portions of BankServ's
proprietary
computer software (the
"Licensed
Software") and user documentation
supplied by BankServ
including any subsequent
versions thereof (the "Documentation") on
such computer central processing units
owned or controlled by Licensee for
Licensee's own internal operations, solely
in conjunction with the services provided by BankServ. Licensee may copy the
Licensed Software solely for use on the
computer central
processing units owned
and controlled by Licensee and for backup
purposes. All copies
shall remain the
exclusive property of BankServ and Licensee shall have no right, title or
interest therein except as expressly set
forth in this Agreement. Duplication of
Documentation is prohibited. Licensee is prohibited from using the Licensed
Software in a service bureau, timesharing or outsourcing
capacity. In addition,
BankServ grants to Licensee, during the
term of this Agreement, a non-exclusive,
nontransferable license to copy and sublicense
the terminal
components of the
Licensed Software ("Terminal Software") to its merchant
customers in connection
with Licensee's facilitation of BankServ
providing wire
transfer services
for
such merchant customers. Licensee may
sublicense the Terminal Software only upon
Licensee obtaining an original,
fully executed
Sublicense Agreement in the form
of Exhibit C as may be modified from time
to time (or in
substantially
similar
form, subject to BankServ's prior written approval) and delivering a copy of
same to BankServ. Upon the expiration of such
sublicense, Licensee
shall cause
all
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sublicensees of such software to immediately cease all use and return to
Licensee any and all copies of such
software and
documentation
thereto in any
form whatsoever in any merchant
customer's
possession or control
( upon which
Licensee shall forthwith return same to
BankServ).
(a) INTELLECTUAL PROPERTY RIGHTS OF
SOFTWARE AND DOCUMENTATION. CLIENT as
Licensee acknowledges that the Licensed Software and Documentation
are
works on which BankServ and/or BankServ's licensors hold the sole and
exclusive copyright.
Licensee shall maintain BankServ's copyright
notice on the Licensed Software and Documentation, and shall
reproduce
such notice on all
copies of the Licensed Software, and upon all
tangible media,
such as diskettes, upon which copies are stored.
Further,
Licensee
acknowledges that
the Licensed Software and
Documentation licensed
hereunder contain valuable trade secrets
and
confidential
information that are the unrestricted proprietary rights
of BankServ. Licensee
agrees that it will not use this information in
any way not allowed by this Agreement, that it will not disclose this
information to anyone other than its own employees who require
access,
that it will protect and maintain the confidentiality of this
information, and
that it will take all commercially reasonable
precautions (no less
stringent than those
the Client uses to protect
its own proprietary
information) to prevent any unauthorized use or
disclosure of this
information. Licensee
further agrees that it will
not decompile,
disassemble,
or in any manner attempt to reverse
engineer the Licensed Software or direct or authorize others to do
so.
16.
MISC0ILANN.JC PROVISION.
(a) ENTIRE AGREEMENT. This Agreement and any Exhibits
hereto, constitute
the final and entire
understanding and
agreement between the parties
with respect to the
subject matter
hereof and shall
supersede all
prior negotiations,
understandings,
representations
and agreements
between the parties
relating to the subject matter hereof. No party
shall be liable or bound to any other in any manner by any
representations,
warranties, covenants
and agreements except as
specifically set forth
herein. The parties agree that no extrinsic
evidence whatsoever may be introduced in any judicial,
administrative,
arbitration or other proceeding involving this Agreement.
Nothing in
this Agreement is
intended to confer upon any person, other than the
parties hereto and their respective successors, permitted assigns,
heirs, legatees,
executors and administrators, any rights, remedies,
obligations or
liabilities
under or by
reason of this Agreement,
except as expressly provided herein.
(b) COMPLIANCE WITH LAWS AND REGULATIONS. THE parties hereto agree to
comply with all applicable laws and regulations with respect to the
Services.
(c) FURTHER ASSURANCES. Subject to the terms and
conditions expressly set
forth herein,
the parties
hereto shall use their
best efforts to do
and perform or cause to be done and performed all further acts and
shall execute
and deliver all other agreements, certificates,
instruments or documents as any other party may reasonably
request in
order to promote
the intent and
purpose of this
Agreement and the
consummation of the transactions contemplated hereby. No party shall
voluntarily undertake
any course of action inconsistent with the
performance or satisfaction of the requirements applicable to it set
forth in this
Agreement, and each
party shall
promptly do all
such
acts and take all such measures as may be appropriate to enable it to
perform as early as practicable the obligations herein required to be
performed by it.
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(d) ESTABLISHING RULES. Clien
