Fill and Sign the Authorization Agreement for Electronic Funds Transfer Form

-1- § 10.17 Form: Emergency Backup Services AgreementAGREEMENT made as of _____, by and between Emergency Backup Services Company ("Company"), a New Jersey corporation, with its principal place of business at ______________________ and User, a New York corporation, with its principal place of business at ________________. WHEREAS, Company desires to provide emergency backup facilities for funds transfer services to financial institutions in the New York Metropolitan Area who wish to engage such service for a fee as provided herein; and WHEREAS, User is a financial institution in the New York Metropolitan Area who wishes to protect itself in case of an emergency by utilizing the Company Backup Facility for emergency funds transfer services. NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1. Definitions 1.1 Backup Facility "Backup Facility" shall refer to the computer equipment configuration at the Company computer facility located at the Company principal place of business as specified in Schedule "A." 1.2 Backup Facility Test "Backup Facility Test" shall refer to the procedure undertaken by the User to test the usability of the Backup Facility. 1.3 Backup Facility Usage "Backup Facility Usage" shall refer to the period of time during which User makes use of the Backup Facility. 1.4 User Computer Facility "User Computer Facility" shall refer to the computer equipment located at User's computer facility dedicated to paying and receiving as set forth in Schedule "B." 1.5 Disaster "Disaster" shall refer to an unplanned interruption of the operation of, or the inaccessibility to the User Computer Facility which prevents the User from performing its paying and receiving operations. Any interruption of the User Computer Facility resulting from peripheral -2- upgrades, maintenance, a peripheral device malfunction, or the utilization of the User Computer Facility for other than paying and receiving shall not be deemed a Disaster.1.6 Transfer Software "Transfer Software" shall refer to the standard, unmodified, current version of the paying and receiving computer software utilized by the User. 1.7 Multiple Disasters "Multiple Disasters" shall refer to simultaneous Disasters being experienced by more than one Subscription Holder. 1.8 Retainer Fee "Retainer Fee" shall refer to the monthly charge imposed by Company and payable by User as set forth in Schedule "C." 1.9 Sources Provided "Sources Provided" shall refer to banking funds transfer software that the User elects to use from the Backup Facility as set forth in Schedule "B." 1.10 Subscription Holder "Subscription Holder" shall refer to a client under an Emergency Funds Transfer Backup Services Agreement with Company. 1.11 Usage Fee "Usage Fee" shall refer to the charge imposed by Company and payable by User for Backup Facility Usage as set forth in Schedule "C." 2. The Service 2.1 Backup Service In the event of a Disaster at User Computer Facility, Company, upon sixty (60) minutes prior notice, shall provide User with: a. access to the Backup Facility to be used for paying and receiving funds transfer services for the Sources Provided; and b. a licensed version of the Transfer Software. The User may provide a tailored version of the Transfer Software pursuant to Section 2.7 of this Agreement. -3- 2.2 Configuration Change In the event of any Backup Facility computer equipment changes, Company shall give User at least thirty (30) days prior written notice of the change of the computer equipment configuration, and no such change shall be made unless the resulting equipment configuration provides at least the same level of functionality as originally provided. 2.3 Availability The Backup Facility shall be operational and available for use beginning thirty (30) minutes before scheduled banking funds transfer operations and shall remain available in operation until two (2) hours after the close of banking funds transfer operations. The Backup Facility shall follow the banking funds transfer holiday schedule. The User's usage of the Backup Facility shall be limited to thirty (30) consecutive days per incident. Additional availability may be permitted by Company at its option pursuant to Section 2.7 of this Agreement. 2.4 Backup Facility Testing Company shall provide User access to the Backup Facility during each calendar quarter (90 days) for one (1) day of eight (8) hours duration to complete a Backup Facility Test. Additional testing time may be made available by Company, at its option pursuant to Section 2.7 of this Agreement. 2.5 Operational Support Company shall provide reasonable operational support for both Backup Facility Tests and Backup Facility Usage. Company has subcontracted with Transfer Software's developer to provide operational support including but not limited to: booting the system, loading files and software, monitoring communications, and printing. No support shall be provided for the loading of tailored or custom software, or Transfer Software with custom changes or modifications unless provided for pursuant to Section 2.7 of this Agreement. 2.6 Multiple Disasters In the event of Multiple Disasters, Company shall use its best efforts to provide a coordinated and scheduled shared utilization of the Backup Facility. Company shall use its best efforts to partition the Backup Facility equally among the Subscription Holders experiencing a Disaster and to assure the confidentiality of the information of each Subscription Holder. If the Backup Facility is unable to accommodate all Subscription Holders experiencing a Disaster, the Backup Facility -4- shall be allocated to the Subscription Holders in the order that Company was notified of the Disaster by each Subscription Holder.2.7 Optional Services Company may, for an additional fee, provide User with nonstandard services, including but not limited to additional Backup Facility Tests, support for nonstandard or tailored Transfer Software, consulting services, computer tapes, and other supplies. 2.8 Access to External Auditors Upon reasonable notice and request, Company shall make available any required information and access to the Backup Facility to the external certified public accountants of User. The User shall pay for any associated costs in accordance with the Company standard fee schedule. 2.9 Backup Software and Data User, at its option and in conjunction with the Backup Service provided herein, may periodically deposit two (2) identical tapes of backup software and data with Company at Company's principal place of business. The two identical backup tapes shall be delivered by the User to the Company computer room, or as otherwise directed by Company. After delivery, Company will deposit one of the backup tapes in a locked cabinet at the Company computer facility, and will deposit the second backup tape in a vault at the Company principal place of business. The vault is being provided by Company as an additional backup feature; as such, the vault will not be open twenty- four hours per day and the User will not have access to the vault. The User, at its option, may include software as well as data on the backup tapes. 3. User Responsibilities 3.1 Backup Facility Testing User shall schedule a Backup Facility Test at least ten (10) business days in advance of the date on which the test is to occur. Company reserves the right to reschedule the Backup Facility Test in the event that Company is experiencing equipment problems or if another Subscription Holder is utilizing the Backup Facility. The initial test shall occur within sixty (60) days of the execution of this Agreement. 3.2 Paying and Receiving Personnel -5- User is responsible to provide any personnel necessary for data entry, operations over and above the Company provided operator, printing, and any other personnel necessary for User's funds transfer operations. 3.3 Supplies User shall provide any and all needed supplies including but not limited to computer tapes, paper and printed notices or advices, and any custom or tailored Transfer Software, if provided for pursuant to Section 2.7 of this Agreement. 3.4 License of Transfer Software User hereby agrees to maintain in full force and effect a license of the Transfer Software for the term of this Agreement. If for any reason, User does not maintain a license for the Transfer Software then this Agreement may be terminated by Company, at its option. A copy of User's current Transfer Software License Agreement shall be attached hereto as Schedule "D." 3.5 Multiple Disasters In the event of a Multiple Disaster, User shall use its best efforts to cooperate with the coordination and scheduling of Subscription Holders for the use of the Backup Facility. 3.6 Confidentiality of Data User agrees not to seek or obtain access to files, programs or data which may be considered proprietary to Company, Transfer Software's developer, other Subscription Holders, or other users of the Backup Facility. If such access is accidentally or otherwise obtained, User agrees to inform Company and comply with any reasonable instructions that Company gives with respect thereto. 3.7 Insurance User shall maintain insurance in full force and effect with respect to itself and to each and any of its personnel, agents, or subcontractors who may be on any premises or property of Company in connection with this Agreement, including without limitation: a. Insurance to cover Worker's Compensation in the statutory amount required under the laws of the State of New York; b. Blanket fidelity bond coverage in an amount equal to that amount which User normally carries for its paying and receiving funds transfer employees; -6- c. Computer crime coverage including funds transfer activities, to the extent that the User normally carries such coverage; and d. Property and broad form comprehensive general liability insurance and such other insurance as it customarily has maintained with respect to its general business activities. 3.8 Supervision User acknowledges that it does not have any authority or power to supervise or otherwise regulate the employees or operations of Company. 4. Notice 4.1 Notice of Disaster Notification of a Disaster may be provided to Company orally, but such notification must be followed by a written notification delivered to Company by messenger within two (2) hours of oral notification. Both types of notification require specification of a time period within which access to the Backup Facility is desired by User. 4.2 Notice of Backup Facility Service Discontinuation A User utilizing the Company Backup Facility shall provide Company with two (2) hours written notice of its desire to discontinue Backup Facility usage. 4.3 Delivery of Notice Any notice under this Agreement is required to be in writing, unless specified otherwise, except ordinary operational notices, and shall be sent by Registered or Certified Mail, Return Receipt Requested, to the officers signing this Agreement at the principal offices. 5. Payment 5.1 Fee Structure The charges imposed by Company and payable by User are as set forth in Schedule "C" and shall be based upon the number and size of the central processing units used in the User Computer Facility and the number of Sources Provided. 5.2 Retainer Fee The Retainer Fee is due and payable on the first day of the month for that month. -7- 5.3 Other Fees Usage Fees and any other fees pursuant to Section 2.7 are due and payable within ten (10) days of the date of the invoice. 5.4 Fee Changes Upon thirty (30) days prior written notice to the User, Company may change its fees or alter its fee structure. 5.5 Taxes User shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement. Without limiting the foregoing, User shall promptly pay to the Company an amount equal to any such items actually paid, or required to be collected or paid by Company. 6. Warranty Limitation and Liability6.1 Warranty Company warrants that the Backup Facility services provided hereunder shall conform in all material respects to those services set forth in Section 2 herein. 6.2 No Other Warranty THE WARRANTY STATED ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY COMPANY. COMPANY DOES NOT MAKE AND THE USER SPECIFICALLY WAIVES ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. SPECIFICALLY EXCLUDED ARE ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOSS OF BUSINESS OR PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES, OR FOR THE CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF COMPANY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. -8- 6.3 Limitation of Liability In no event shall Company aggregate liability for damages to the User or any third party for any cause whatsoever, regardless of the form of action, whether in contract or in tort, including negligence, exceed the prior three (3) months' retainer fee. In no event shall Company be liable for damages caused by (i) delay in setup or use of tailored or customer versions of Transfer Software, (ii) delay in setup of the User data, (iii) failure of the primary or secondary Backup Facility, or (iv) insufficient setup time. 6.4 Indemnification User agrees to indemnify and hold harmless Company and its subsidiaries or affiliates under its control, and their directors, officers, employees and agents, against any and all losses, liabilities, awards and costs (including legal fees and expenses) arising out of or related to any third party claim resulting from User's use of the Backup Facility or User's use of the services provided hereunder. User shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing, provided that Company gives the User prompt notice of any such claim of which it learns. In all events, Company shall have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing. 6.5 Force Majeure The parties hereto shall not be responsible for any failure or delay in the performance of any obligation hereunder caused by acts of God, flood, fire, war or the public enemy. 6.6 Confidentiality The parties agree that this Agreement is a confidential agreement between Company and the User. This Agreement or a copy thereof may not be furnished to any third party by either Company or User without the prior written consent of the other party except as may be necessary by reason of legal, accounting or regulatory requirements beyond the reasonable control of Company or User, in which event Company and User agree to exercise diligence in limiting such disclosures to the minimum necessary under the particular circumstances. 7. Term and Termination7.1 Term -9- The term of this Agreement shall begin on the date first stated above and shall end one (1) year thereafter. This Agreement shall be automatically renewed for periods of one (1) year unless terminated by either party. 7.2 Termination This Agreement may be terminated by either party upon one hundred fifty (150) days prior written notice to the other party. 8. General 8.1 Independent Contractors The relationship between Company and User created by this Agreement shall be that of independent contractors. Nothing contained in this Agreement shall be construed as constituting a partnership or agency between Company and User. 8.2 Employees and Agents User shall be solely responsible for all physical injuries or deaths to its agents, servants or employees or to any other person or damage to any property sustained during its operation and work at the Backup Facility, resulting from any negligent or willful tort of any of its employees, agents, or independent contractors. User shall hold harmless and indemnify Company from liability upon any and all damages on account of such injuries or deaths to any such person or damage to property on account of negligence or willful tort of its employees, agents, or independent contractors. User shall be solely responsible for the safety and protection of all its employees. 8.3 New York Law This Agreement shall be deemed to be executed in the City of New York, State of New York regardless of the domicile of User and shall be governed by and construed in accordance with the laws of the State of New York. Both parties agree that any claims asserted by or against Company arising under this Agreement or related thereto shall be heard and determined exclusively either in the Courts of the United States located in New York City or in the Courts of the State of New York located in the County of New York. 8.4 Entire Agreement Each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and further agrees -10- that it is the complete and exclusive statement of the agreement between the parties, that supersedes and merges all prior proposals, understandings, and all other agreements, oral and handwritten, between the parties relating to the subject matter of this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.8.5 Enforceability If any provision of this Agreement shall be held to be invalid, illegal, or otherwise unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted and the validity, legality and enforceability of the remaining provisions shall in no way be effected or impaired thereby. 8.6 No Waiver The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any right hereunder. 8.7 Assignment This Agreement and the rights and duties hereunder shall not be assignable by the parties hereto except upon the prior written consent of the other. User understands and accepts Transfer Software's developer as a subcontractor for Company to provide for and operationally service the Backup Facility. IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the date first written above by their duly authorized representative. USER EMERGENCY BACKUP SERVICES COMPANY By:______________________ By:______________________