ex10-1.htm


    


    

     

    MASTER
AGREEMENT

    


    MASTER
AGREEMENT ("Agreement”) dated as
of November 7,
2008 ("Effective
Date") between Fiserv Solutions, Inc., a Wisconsin corporation with
offices located at 600 Colonial Center Parkway, Lake Mary, Florida 32746, on
behalf of itself and its Affiliates, ("Fiserv"), and
Commerce Bank Harrisburg, NA, a Pennsylvania corporation with offices located at
3801 Paxton Street, Harrisburg, PA 17111 ("Client").

    Fiserv
and Client hereby agree as follows:

    


    1. Services.  (a)
Fiserv, itself and through its affiliates, agrees to provide Client, and Client
agrees to obtain from Fiserv the services (collectively "Services") and
products ("Products")
(collectively, "Fiserv
Services") described in the attached Exhibits. In consideration of Fiserv
providing the Services, Client shall pay to Fiserv the fees in accordance with
this Agreement. Except as set forth in this Agreement or as provided for
pursuant to the Change Control Process, there shall be no additional charge or
fees payable by Client in respect of Fiserv's performance of its obligations
pursuant to this Agreement. "Affiliate" shall mean an entity controlling,
controlled by or under common control with a party to this Agreement during the
Term hereof where control means the ownership or control, directly or
indirectly, of more than fifty percent (50%) of all of the voting power of the
shares (or other securities or rights) entitled to vote for the election of
directors or other governing authority.

    


    (b) The
Exhibits set forth specific terms and conditions applicable to the Services
and/or Products. The parties may add services and products to this Agreement by
signing an appropriate Exhibit to this Agreement subject to the Change Control
Process outlined in Appendix 3.

    


    (c) In
the event Client incurs actual and sustained volumes recognized by both parties
as being significantly in excess of Client's 20% year on year growth
projections, or in the event of a contemplated acquisition by Client that the
parties agree will significantly increase Client's use of Fiserv Services
(excluding EFT Services), then Fiserv and Client shall meet to discuss in good
faith any appropriate changes in pricing.

    


    (d)
Notwithstanding the foregoing, the parties acknowledge that the EFT Services
pricing in the market may change over the Term, and Client expects year on year
growth of 20%, therefore, specific to the EFT Services as described in Exhibit C
of the Agreement, the parties agree to conduct a competitive price analysis of
like services, like volumes, like growth, and like terms to such EFT Services
for comparable financial institution ("Like Services") within 90 days following
the end of years 3 and 5 of the Term from first production use of EFT Services
where such competitive analysis shall include Fiserv's then current competitive
pricing for such Like Services, If as a result of such analysis the then current
market competitive pricing for Like Services is materially different from the
pricing currently being invoiced to Client for such EFT Services, then the
parties agree to meet to negotiate in good faith any appropriate adjustment to
the fees for such EFT Services given current market rates for Like Services and
Client's actual growth achievement. Should the parties be unable to agree on an
appropriate adjustment, the matter shall be escalated to the second level of
informal effort under Section 10 (a) of this Agreement and ultimately resolved
through the Dispute Resolution process pursuant to Section 10 of this
Agreement.

     

    2. Fees for Fiserv
Services. (a) General. Client
agrees to pay Fiserv all of the following (collectively, "Fees"):

     

    (i)
Monthly Fees - Actual fees (unless otherwise set forth in the Exhibits) due and
payable for the Fiserv Services made available in the previous month as
specified in the Exhibits beginning when each applicable Fiserv Service is made
available to Client. For the avoidance of doubt, the Monthly Fees include
Project Services fees.

     

    (ii)
Other Fees - License fees, Maintenance fees, and other fees are due as set forth
in the Exhibits.

     

    (iii)
Out-of-pocket and other additional charges for the month pursuant to Section
2(b).

     

    (iv)
Taxes as defined in Section 2(c).

    Fees
payable pursuant to this Agreement, including each exhibit hereto, including
fees due with respect to Fiserv Services added subsequent to the Effective Date
of this Agreement shall be increased annually by the percentage increase in the
CPI [where "CPI" is the Consumer Price Index for the Urban Wage Earners for
clerical workers, All Cities (1982 - 100)] for the 12 month period preceding the
date of such increase ("Annual Increase"). Fee may also be increased for
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    provided
by Fiserv as identified in the Exhibits. Fiserv may increase its Fees in excess
of amounts otherwise payable hereunder or under any exhibit in the event that
Fiserv implements major system enhancements (i.e. new functionality) to comply
with changes in law, government regulation, or industry practices. Fiserv shall
use commercially reasonable efforts to minimize any Fee increases resulting from
such changes. For the avoidance of doubt, Client may choose to license
enhancements that Fiserv develops for the Software that are not required by
Federal regulatory requirements as an option in consideration for payment by
Client to Fiserv of the applicable license and maintenance fees for such
Enhancement. In addition to the foregoing, Fiserv shall have the right to bill
Client the full amount of any increases in third party telecommunication costs,
network pass-through fees or other out of pocket expenses incurred on behalf of
Client as of the same effective date such increases are billed to Fiserv. Any
services in addition to the Services provided under this Agreement shall be
added by mutual written agreement between the parties by following the Change
Control Process outlined in Appendix 3.

    


    (b) Additional Charges.
Fees for out-of-pocket expenses, such as telephone, courier, and other charges
reasonably incurred by Fiserv for goods or services obtained by Fiserv on
Client's request and behalf shall be billed to Client at cost plus the
applicable Fiserv administrative fee of 15% ("Admin Fee"). Such out-of pocket
expenses may be changed from time to time upon notification of a fee change from
a vendor/provider. Fiserv will obtain Client's approval prior to incurring such
out-of pocket expenses on Client's behalf.

    


    Fiserv
shall bill and Client shall pay for travel and related expenses incurred in
relation to the Services in this Agreement, and, as applicable, such expenses
shall be incurred in accordance with Fiserv's then-current corporate travel and
expense policy. Fiserv has provided to Client Fiserv's current corporate travel
and expense policy as of July 2008. Upon Client's request or at least annually,
Fiserv shall provide Client a copy of Fiserv's then current corporate travel and
expense policy. All expenses shall be itemized on invoices submitted by Fiserv
monthly as incurred and shall be due and payable upon presentation of each
invoice as provided herein. Client may directly arrange and pay for travel or
related expenses for Fiserv staff through Client favorable relationships
provided such travel and related arrangements are coordinated with Fiserv
staff.

    


    (c) Taxes. Fiserv shall
add to each invoice any sales, use, excise, value added, and other taxes and
duties however designated that are levied by any taxing authority relating to
the Fiserv Services ("Taxes"). Taxes shall
be detailed and noted separately on each applicable invoice. In no event shall
"Taxes" include taxes based upon Fiserv's net income.

    


    (d) Payment Terms. Fees
are due and payable monthly upon receipt of invoice. Client shall pay Fiserv
through the Automated Clearing House in accordance with the ACH designation form
attached as Appendix I to this Agreement unless otherwise set forth in the
Exhibits. In the event any invoiced amounts remain unpaid 30 days after payment
is due, Client shall pay a monthly late charge of the lesser of 1.5% or the
highest amount allowed by law. Client shall neither make nor assert any right of
deduction or set-off from Fees invoiced for Fiserv Services provided except as
set forth in this Section 2 (d). If Fiserv and Client mutually agree in writing
that a credit is due to Client and Fiserv has not issued such credit within 10
days Client may set-off or deduct the amount of such agreed credit from the next
amount due. If Client disputes any invoice item, Client shall provide written
notice to Fiserv within 30 days of the invoice date specifying in detail the
nature of the disagreement. Client and Fiserv shall work in good faith to
resolve such dispute within 15 days of receiving such detail or within such
other time period as is mutually agreed in writing between the parties. If such
dispute is not resolved within such time period, the parties shall escalate the
dispute through the dispute resolution process in Section 10 of this Agreement.
During the dispute resolution process, Client shall have the right to withhold
payment of such disputed item or fee and Fiserv shall not have the right to
terminate for such withheld payment.

    


    3. Confidentiality and
Ownership. (a) Definitions.

    


    (i)
"Client
Information" means the Client information provided to or accessed by
Fiserv in connection with this Agreement, whether or not any such information is
marked with a restrictive legend, including: (A) confidential plans,
information, and other proprietary material of Client; (B) customer lists and
any information and data concerning the business and financial records of
Client's customers prepared by or for Fiserv, or to which Fiserv has access, or
used in any way by Fiserv in connection with the provision of Fiserv Services;
and (C) any information and data received by Fiserv from Client.

    


    (ii)
"Fiserv
Information" means Fiserv information provided to or accessed by Client
in connection with this Agreement whether or not any such information is marked
with a restrictive legend, including: (A) pricing and all other provisions as
set forth in this Agreement, confidential plans, information, research,
development, trade secrets, business affairs (including that of any Fiserv
Client, supplier, or affiliate), and other proprietary material of Fiserv; (B)


     

    
      
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    Fiserv's
information security plans, business continuity plans, proprietary computer
programs (including custom software modifications, software documentation,
databases, and training aids, and all data, code, techniques, algorithms,
methods, logic, architecture, and designs embodied or incorporated therein), all
copyrights, patent rights, trademark rights and other proprietary rights which
form part of the Fiserv Services, and the terms and conditions of this
Agreement; (C) The Software System (as defined in Exhibit M) and all
modifications, enhancements, additions, upgrades, manuals, instructions,
documents, or other works based thereon or related thereto, and all patents,
copyrights, or other proprietary rights related to each of the foregoing, (all
of which are acknowledged by Client to be and contain Fiserv's and its licensors
proprietary information and trade secrets and are the sole and exclusive
property of Fiserv or its suppliers, whether made by Fiserv, Client, or any of
their employees or agents); (D) all information, reports, studies, object or
source code, flow charts, diagrams, and other tangible or intangible material of
any nature whatsoever produced by or as a result of any of the Services
performed pursuant to this Agreement or through its Exhibits, including Project
Services as set forth in Exhibit N, by Fiserv or jointly with Client, (all of
which shall be the sole and exclusive property of Fiserv or its corporate
parent); and (E) any other information and data received by Client from Fiserv.
Client shall be entitled to Use any work product provided by Fiserv in
accordance with the terms and conditions of this Agreement and its Exhibits.
Nothing in this Agreement or its Exhibits shall convey to Client any title to or
any rights in the Software licensed pursuant to Exhibit M, including but not
limited to all proprietary rights or ownership of any modifications or
derivatives. Client's sole right in relation to Software or any modifications
provided by Fiserv is Use of the same in accordance with the terms and
conditions of Exhibit M and related Exhibits M - n.

    


    Client
agrees that all materials made by Client, its employees or agents pursuant to
Sections 3(a)(ii) C and D shall be deemed to be "works made for hire" of which
Fiserv shall be deemed the author; provided that to the extent such works are
determined not to constitute "works made for hire" as a matter of law, Client
hereby irrevocably assigns and transfers to Fiserv all rights, title, and
interest in such works, including but not limited to copyrights, patent rights,
trade secrets, industrial property rights, and moral rights and shall execute
all documents reasonably requested by Fiserv for the purpose of registering such
rights.

    


    (iii)
"Information"
means Client Information and Fiserv Information. No obligation of
confidentiality applies to any Information that the receiving party ("Recipient") (A)
already possesses without obligation of confidentiality; (B) develops
independently without use of or reference to the Information; or (C) rightfully
receives without obligation of confidentiality from a third party. No obligation
of confidentiality applies to any Information that is, or becomes, publicly
available without breach of this Agreement.

    


    (b) Obligations.
Recipient agrees to hold as confidential all Information it receives from the
disclosing party ("Discloser"). All
Information shall remain the property of Discloser or its suppliers and
licensors. Recipient will use the same care and discretion to avoid disclosure
of Information as it uses with its own similar information that it does not wish
disclosed, but in no event less than a reasonable standard of care. Recipient
may only use Information in accordance with the purpose of this Agreement.
Fiserv specifically agrees that it will not use or disclose any non-public
personal information about Client's customers in any manner prohibited by Title
V of the Gramm-Leach-Bliley Act or the regulations issued thereunder ("GLB").
Recipient may disclose Information to: (i) its employees and employees of
permitted subcontractors and affiliates who have a need to know; and (ii) any
other party with Discloser's prior written consent. Before disclosure to any of
the above parties, Recipient will have a written agreement with such party
sufficient to require that party to treat Information in accordance with this
Agreement. In the event Client requires a third party to interface to Fiserv's
CBS core system, Client shall comply with the obligations of this Section for
non-disclosure, ensure such third party complies with applicable provisions of
this Agreement, and license the applicable Communicator message service in
accordance with Exhibit M to this Agreement. Client's third party shall write to
such Communicator message service. Any professional services required from
Fiserv by Client to assist Client's third party shall be provided at Client's
expense at Fiserv's professional service rates, as mutually agreed in writing,
and provided in accordance with Exhibit N. Recipient may disclose Information to
the extent required by law. However, Recipient agrees to give Discloser prompt
notice, if legally permissible, so that Discloser may seek a protective order.
At Recipient's option, Information will be returned to Discloser or destroyed
(except as may be contained in back-up files created in the ordinary course of
business that are recycled in the ordinary course of business over a 30- to
90-day period or such longer period as required by applicable law) at the
termination or expiration of this Agreement and, upon Discloser's request,
Recipient will certify to Discloser in writing that it has complied with the
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    provisions
of this sub-section survive any termination or expiration of this
Agreement.

    


    (c) Residuals. Nothing
contained in this Agreement shall restrict Recipient from the use in its
business of any ideas, concepts, know-how, or techniques contained in
Information that are related to Recipient's business activities and retained in
the unaided memory of Recipient's employees.

    


    (d) Fiserv System and Client
Systems. Fiserv systems used in the delivery of Services (the "Fiserv System") and
Client's networks and computer systems ("Client Systems")
contain information and computer software that are proprietary and confidential
information of the respective parties, their suppliers, and licensors, Each
party agrees not to attempt to circumvent the devices employed by the other
party to prevent unauthorized access thereto, including, but not limited to,
alterations, decompiling, disassembling, modifications, and reverse engineering
thereof.

    


    (e) Ownership. With the
exception of Client Information, all information, reports, studies, object or
source code, flow charts, diagrams, and other tangible or intangible material of
any nature whatsoever produced by Fiserv or jointly with Client or by any of
Fiserv's or Client's employees or agents, through or as a result of or related
to any of the Services performed, including Project Services as set forth in
Exhibits N and related N - n - n, or Products provided hereunder including
Software provided as set forth in Exhibit M and related M - n - n, shall be the
sole and exclusive property of Fiserv or its corporate parent. Client shall
execute documents reasonably required by Fiserv, and shall ensure that its
employees are subject to legally binding agreements or other written commitments
requiring them to execute documents reasonably required by Fiserv, to perfect
such rights, Client shall be entitled to use all such work product in accordance
with the terms and conditions of this Agreement.

    


    (f) Exception to
Ownership. In the event Client presents to Fiserv an original idea
regarding a technology or functionality development not previously considered or
known to Fiserv or the industry, Client and Fiserv may mutually agree to an
alternative ownership structure or to a period of exclusive use of such
development by Client. This shall not preclude Fiserv from accepting an
engagement for development of the same or a substantially similar development
for another Fiserv client, provided no use of Client Information is made by
Fiserv. Any provision of this Agreement to the contrary notwithstanding, Fiserv
shall not own the interface that Client or Client's third party contractor
creates to the Fiserv communicator application. Such interface shall be owned by
Client.

    


    (g) Restrictions. Without
limiting any other obligation set forth in this Section 3, Client shall not use,
transfer, distribute, interface, integrate, or dispose of any information or
content contained in the Fiserv Services in any manner that could compete with
the business of Fiserv. Client shall not: (i) use the Fiserv Services to provide
services to third parties; or (ii) reproduce, republish or offer any part of the
Fiserv Services (or compilations based on any part of the Fiserv Services) for
sale or distribution in any form, over or through any medium, without the prior
written consent of Fiserv. For the avoidance of doubt, the restrictions in this
subsection 3(g) shall not apply to Client Affiliates or other Client personnel
acting in the ordinary course of business, provided that any such Client
Affiliate is not a competitor of Fiserv and provided further that any such
Client Affiliate and Client personnel agree to comply with the terms and
conditions of this Agreement.

    


    4. Information
Security.  (a) General. Fiserv has
implemented and shall maintain appropriate measures designed to meet the
objectives of the applicable guidelines establishing information security
standards as adopted by any federal regulatory agencies having jurisdiction over
Client's affairs ("Guidelines"). These
measures will consist of appropriate disposal of consumer information as
required, and taking appropriate actions to address incidents of unauthorized
access to Client's sensitive customer information, including notification to
Client as soon as possible of any such incident. Without limiting the foregoing,
Fiserv's information security program is designed to: (i) ensure the security
and confidentiality of customer information; (ii) protect against any
anticipated threats or hazards to the security or integrity of such information;
and (iii) protect against unauthorized access to or use of such information that
could result in substantial harm or inconvenience to any customer. Upon Client's
written request or as mutually agreed between Client's information security
officer or designee and Fiserv's relationship manager, Fiserv shall provide
Client with copies of any associated audit reports, summaries of test results or
equivalent measures taken by Fiserv to ensure that its information security
program meets the objectives of the Guidelines.

    


    (b) Client Requirements.
As mutually agreed and at Client's expense, Fiserv shall make commercially
reasonable modifications to its information security program to conform to
Client's information security requirements, as they exist from time to
time.

    


    (c) Fiserv Plan. Within
30 days of Client's written request, Fiserv shall provide to Client a summary
copy of Fiserv's written information security plan, and thereafter upon Client's
written request will provide updates on the status of its information security
plan.

    


    
      
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    (d) Security Testing.
Fiserv uses a third party to provide monitoring, penetration and intrusion
testing with respect to certain Services, Upon Client's written request or as
mutually agreed between Client's information security officer or designee and
Fiserv's relationship manager, Fiserv agrees to provide Client with (i) a copy
of its most recent security certification, if any, for the applicable Fiserv
service center providing such Services and/or (ii) a letter from Fiserv's third
party provider validating the certification.

    


    (e) Notification. Each
party agrees that it shall notify the other party as soon as possible upon
becoming aware of any incident of attempted or actual unauthorized access to any
Information or the Fiserv System.

    


    (f) Data Encryption.
Client agrees to comply with Fiserv's then-current data encryption policies and
controls regarding transmission to and from Fiserv of tapes, images, Client
Files as defined in Section 6 (a), or other data in connection with the Fiserv
Services (collectively, "Data"). Upon a
requirement of Client to send Data to Fiserv, upon request by Client, or as
mutually agreed between Client's information security officer or designee and
Fiserv's relationship manager. Fiserv shall provide to Client a copy of Fiserv's
then-current data encryption policies and controls. If Client requests or
requires Fiserv to send, transmit, or otherwise deliver Data to Client or any
third party in any manner not in compliance with such policies and controls,
then, notwithstanding any other provision of this Agreement: (i) Client
understands and accepts all risk of transmitting Data in an unencrypted or
otherwise noncompliant format; (ii) Client releases and discharges Fiserv and
its employees, officers, directors, agents, and affiliates from any and all
liability, damage, or other loss under this Agreement or otherwise
(collectively, "Loss") suffered by or through Client arising out of the
transmission, destruction, or loss of such Data, including without limitation
any information security or privacy breach related to such Data; and (iii)
Client shall indemnify and hold harmless Fiserv and its employees, officers,
directors, agents, and affiliates from any Loss suffered by any of them arising
out of the transmission, destruction, or loss of such Data, including without
limitation any information security or privacy breach related to such
Data.

    


    5. Hiring and
Employment. (a) Background Checks.
Fiserv shall not knowingly permit any Fiserv employee to have access to the
premises, records or data of Client when such employee: (i) uses drugs
illegally; or (ii) has been convicted of a crime in connection with a dishonest
act or a breach of trust, as set forth in Section 19 of the Federal Deposit
Insurance Act, 12 U.S.C. 1829 (a). Consistent with Fiserv's employment
practices, newly hired Fiserv employees: (x) as from 1996, are required to pass
a pre-employment criminal background check; and (y) as from 1993, are required
to pass a pre-employment drug screening. Upon Client's reasonable written
request and at its expense, Fiserv agrees to perform additional reasonable
background checks on those of Fiserv's employees who will have access to Client
facilities or Client Systems located at Client or Fiserv facilities. The results
of all such background checks shall be retained solely by Fiserv.

    


    (b) Equal Employment.
Each party agrees that it shall not discriminate against any employee or
applicant for employment because of race, creed, color, age, sex, national
origin, marital status, liability for service in the armed forces, disability
due to veteran status, status as veteran of the Vietnam era, or the handicapped,
and it shall comply with all applicable requirements of the Equal Opportunity
Clause set forth in Executive Order 11246, as amended, and its implementing
instructions, as well as the Rehabilitation Act of 1973 and the Vietnam Era
Veterans' Readjustment Assistance Act of 1974.

    


    6. Regulatory Agencies,
Regulations and Legal Requirements. (a) Client Files. Records
maintained and produced for Client ("Client Files") may be
subject to examination by such Federal, State, or other governmental regulatory
agencies as may have jurisdiction over Client's business to the same extent as
such records would be subject if maintained by Client on its own premises.
Client agrees that Fiserv is authorized to give all reports, summaries, or
information contained in or derived from the data or information in Fiserv's
possession relating to Client when formally requested to do so by an authorized
regulatory or government agency in accordance with Section 3 (b) of this
Agreement. Client agrees to pay Fiserv its then-current rates as set forth in
Exhibit 1 for all research work resulting from regulatory requests,
government agency requests, and legal process requests such as subpoena or
search warrant, whether issued during or after the term of this
Agreement.

    


    (b) Compliance with Regulatory
Requirements. Client agrees to comply with regulatory and legal
requirements applicable to Client's receipt of Fiserv Services, which may
include without limitation:

    


    (i)
submitting a copy of this Agreement to the appropriate regulatory agencies prior
to the date Services commence;

    (ii)
providing adequate notice to the appropriate regulatory agencies of the
termination of this Agreement or any material changes in Services;

    (iii)
retaining records of its accounts as required by regulatory
authorities;

    (iv)
obtaining and maintaining, at its own expense, any Fidelity Bond required by any
regulatory or governmental agency; and

    (v)
maintaining, at its own expense, such casualty and business interruption
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    of
records from fire, disaster, or other causes, and taking such precautions
regarding the same, as may be required by regulatory authorities.

    


    7. Warranties and
Indemnification. (a) By
Fiserv.

    


    (i) Warranty. Fiserv
represents and warrants that: (A) no contractual obligations exist that would
prevent Fiserv from entering into this Agreement; (B) Fiserv has the requisite
authority to execute, deliver, and perform Fiserv's obligations under this
Agreement; (C) Services will conform to the specifications set forth in the
Exhibits; (D) Fiserv will perform Client's work accurately provided that Client
supplies accurate data and information, and follows the procedures described in
all Fiserv provided documentation and notices; (E) Fiserv personnel will
exercise due care in provision of Services; (F) functionality provided by the
Fiserv System will enable Client to comply in all material respects with Federal
regulations generally applicable to Fiserv's Clients in the industry in which
the functionality is intended to be used; and (G) Fiserv will comply with
Federal regulations applicable to Fiserv's performance of its obligations under
this Agreement.

    


    (ii)
Indemnity.
Fiserv shall defend and indemnify Client and hold it harmless against any and
all amounts payable by Client under any judgment, verdict, court order or
settlement entered or agreed in any third party claim or action that alleges
that the Fiserv System infringes a United States patent, copyright, or other
proprietary right of such third party ("Infringement Claim"). Client agrees to
notify Fiserv promptly of any Infringement Claim and grants Fiserv the sole
right to control the defense and disposition of all Infringement Claims. Client
shall provide Fiserv with reasonable cooperation and assistance in the defense
of any Infringement Claim. The obligations set forth in this paragraph are
Fiserv's entire liability and Client's sole and exclusive remedy for any
Infringement Claim.

    


    (iii)
Software
Indemnity.

    


    
      	
               
      

            	
              A.

            	
              Fiserv
      shall defend and indemnify Client and hold it harmless against any Third
      Party claim or action alleging Use of Software infringes a patent,
      copyright, or other proprietary right of such Third Party enforceable in
      the region or country of the location of Software Use. Client agrees to
      notify Fiserv promptly in writing of any such claim and grants Fiserv sole
      right to control the defense and disposition of such claim at Fiserv's
      expense. Client will provide support to Fiserv as requested to assist in
      such defense.

            


    

    


    
      	
               
      

            	
              B.

            	
              If,
      as a result of such claim, Fiserv or Client is permanently enjoined from
      using Software by a final, non-appealable decree or, in Fiserv's judgment,
      is likely to be so enjoined, Fiserv, at its sole option and expense, may
      (i) procure for Client the right to continue to use Software or (ii)
      provide a replacement or modification for Software, that is non-infringing
      and continues to function in accordance with the Documentation, so as to
      settle such claim. If neither Software replacement or modification nor
      procurement of the right of continued use is reasonably practical in
      Fiserv's sole opinion, Fiserv shall discontinue and terminate the License
      for the infringing Software or Software component upon written notice to
      Client and shall refund to Client the Total License Fees paid for such
      Software or Software component to Fiserv. In making this determination,
      Fiserv will give due consideration to all factors, including financial
      expense. In no event shall Fiserv settle any such Third Party claim by
      making an agreement which would cause Client to lose any right under this
      Agreement without Client's prior written consent. In the event that such
      terminated License relates to a component of Software which is deployed in
      providing a dependent Service Client shall have the right to terminate
      such Service without a termination fee being
  due.

            


    

    


    
      	
               
      

            	
              C.

            	
              The
      foregoing subsection 7(a)(iii)B states Fiserv's entire liability and
      Client's sole and exclusive remedy for the infringement of any copyrights,
      patents, or other proprietary rights by Software or any part thereof, and
      Client hereby expressly waives any other liabilities on the part of Fiserv
      arising therefrom.

            


    

    


    
      	
               
      

            	
              D.

            	
              Fiserv
      shall have no liability for any claim based
  upon:

            


    

    


    
      	
               
      

            	
              (a)

            	
              Use
      of any part of Software in combination with materials or software not
      provided or not specifically approved in writing by Fiserv;
    or

            


    

    
      	
               
      

            	
              (b)

            	
              modifications
      made by Client or any Third Party.

            


    

    


    THE
WARRANTIES STATED ABOVE AND IN THE EXHIBITS, IF ANY, ARE LIMITED WARRANTIES AND
ARE THE ONLY WARRANTIES MADE BY FISERV. CLIENT ACKNOWLEDGES THAT IT HAS
INDEPENDENTLY EVALUATED THE FISERV SERVICES AND THEIR APPLICATION TO CLIENT'S
NEEDS. FISERV DOES NOT MAKE, AND CLIENT HEREBY 

     

    
      
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    EXPRESSLY
WAIVES, ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND FROM A COURSE OF DEALING OR USAGE
OR TRADE.

    


    (b) By
Client.

    


    (i)
Client represents and warrants that: (A) no contractual obligations exist that
would prevent Client from entering into this Agreement; (B) it has complied with
all applicable regulatory requirements; and (C) it has requisite authority to
execute, deliver, and perform this Agreement.

    


    (ii)
Client shall indemnify and hold harmless Fiserv, its officers, directors,
employees, and affiliates against: (A) any claims or actions arising out of the
use by Client of the Fiserv System and/or Software in a manner other than that
provided in this Agreement; (B) claims arising out of Client's instructions to
Fiserv to perform the Fiserv Services properly followed by Fiserv; and (C) any
and all claims by third parties through Client arising out of the performance
and non-performance of the Software and/or Fiserv Services by Fiserv, provided
that the indemnity listed in clause (C) hereof shall not preclude Client's
recovery of damages from Fiserv pursuant to the terms and subject to the
limitations of this Agreement.

    


    (iii)
Client shall use Fiserv Services only in conjunction with lawful purposes.
Client agrees not to use the Fiserv Services for any activities in violation of
any laws or regulations including but not limited to wrongful transmission of
copyrighted material, sending of threatening or obscene materials, or
misappropriation of exportation of trade or national secrets. Client is solely
responsible for ensuring that Client's use of Fiserv Services complies with all
applicable state and federal statutory and regulatory requirements.

    


    (iv) As
relates to eLending Services, notwithstanding anything else contained in Exhibit
E or the Agreement, in no event shall Fiserv be held liable for Client's
business processes and procedures that include the Fiserv eLending
Services.

    


    (v) Trademark
and Intuit Services Content Indemnity Client will indemnify and
hold harmless Fiserv, its officers, directors, employees, designated supplier,
and affiliates against any claims or actions arising out of Fiserv' use of Marks
and/or Intuit Services Content as defined in Exhibit I of this Agreement and as
authorized by the terms of this Agreement.

    


    (v) Client Warranties.
Client represents and warrants that Intuit Services Content provided to Fiserv
is either original or that Client has the legal right to provide such Intuit
Services Content; and (b) Intuit Services Content doesn't impair or violate any
intellectual property or other rights of Fiserv or any third party. Client will
indemnify and hold harmless Fiserv, its officers, directors, employees,
designated supplier, and affiliates against any claims or actions arising out of
any breaches of the foregoing; or any improper use of information gathered
through any co-branded site as part of Fiserv Services.

    


    (vi)
Client acknowledges that access to the Web Services and WireXchange Services
shall be across public and private lines and that Fiserv has no control over
such lines or the information available from nonFiserv sources.

    


    (vii)
Client shall protect, indemnify and hold Fiserv harmless from and against all
costs, damages, expenses, claims, judgments, reasonable attorney's fees or other
liabilities arising out of Client's trademark use other than as provided for in
this Agreement.

    


    8. Limitation of
Liability.

    


    (a) IN NO
EVENT SHALL FISERV BE LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, OR TORT DAMAGES ARISING OUT OF OR RELATING TO THIS
AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT OR IN
CONTRACT.

    


    (b)
EXCEPT FOR CLAIMS RELATED TO PROPRIETARY RIGHTS OR PAYMENT OBLIGATIONS, NEITHER
PARTY MAY ASSERT ANY CLAIM AGAINST THE OTHER RELATED TO THIS AGREEMENT MORE THAN
3 YEARS AFTER SUCH CLAIM ACCRUED.

    


    (c)
FISERV'S AGGREGATE LIABILITY TO CLIENT FOR ANY AND ALL CLAIMS OR OBLIGATIONS
RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF 12 MONTHS SERVICES
FEES OR $3.5 MILLION (THE "CAP"). NOTWITHSTANDING THE FOREGOING, THE CAP SOLELY
WITH RESPECT TO CLAIMS ARISING FROM FISERV'S BREACH OF ITS CONFIDENTIALITY
OBLIGATIONS UNDER SECTION 3 SHALL BE $8 MILLION.

    


    (d)
FISERV'S LIABILITY FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO
INFRINGEMENT ACTIONS UNDER SECTION 7(a)(iii) SHALL NOT BE LIMITED BY THIS
SECTION 8.3.

    


    (e)
FISERV'S AGGREGATE LIABILITY FOR A DEFAULT RELATING TO THIRD PARTY EQUIPMENT OR
SOFTWARE PROVIDED UNDER THIS AGREEMENT OR 

     

    
      
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    ITS
EXHIBITS SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT FOR SUCH EQUIPMENT OR
SOFTWARE..

    


    (f) If in
the sole judgment of Fiserv the total fees due or to become due to Fiserv under
this Agreement as contemplated an the Effective Date decreases by 15% or more at
any time during the term of this Agreement, the amount of the foregoing Caps
shall be decreased ratably upon 30 days' prior written notice from Fiserv to
Client. In no event shall the Cap applicable to claims, generally, be reduced
below $2 million and in no event shall the Cap applicable to Fiserv breach of
the Section 3 confidentiality obligations be reduced below $6.5
million.

    


    9. Term and Termination.
(a) Term. The initial term of this Agreement shall end 7 years following the
date Fiserv Services are first used by Client in live production. Unless written
notice of non-renewal is provided by either party at least 180 days prior to
expiration of the initial term or any renewal term, this Agreement shall
automatically renew for additional term(s) of 2 years. Fiserv shall initiate
renewal discussions with Client 18 months prior to the expiration of this
Agreement's initial Term or any renewal term. This Agreement shall be effective
on the earlier of the Effective Date or the day services are first provided to
Client by Fiserv.

    


    (b) Material Breach; Failure to
Pay.

    


    (i)
Either party may terminate in part, the Fiserv Service and any or all portions
of the Exhibits to which the Fiserv Service relates in the event of a material
breach by the other party of its obligations with respect to such Fiserv Service
or under the related Exhibit, in each case, if such breach is not cured
following written notice stating, with particularity and in reasonable detail,
the nature of the claimed breach within the following applicable period (x) 60
days solely with respect to Exhibit I to this Agreement, (y) 90 days for other
material breaches, or (z) such other period as may be specified in this
Agreement with regard to a specific Exhibit or material breach. For the
avoidance of doubt, the termination rights with respect to Client's failure to
pay is set forth in subsection (iii) below.

    


    (ii)
Either party may terminate in whole this Agreement in the event of a material
breach by the other party with regard to the other party's Information or other
intellectual property, or any other material breach which is also a material
breach of the entire Agreement or relationship between the parties; in each
case, if such breach is not cured following written notice stating, with
particularity and in reasonable detail, the nature of the claimed breach within
the following applicable period (x) 60 days solely with respect to Exhibit I to
this Agreement, (y) 90 days for other material breaches, or (z) such other
period as may be specified in this Agreement with regard to a specific Exhibit
or material breach. For the avoidance of doubt, the termination rights with
respect to Client's failure to pay is set forth in subsection (iii)
below.

    


    (iii) In
the event any invoice not going through the dispute process described in Section
2 (d) remains unpaid by Client 15 days after Fiserv provided written notice of
Client's failure to pay, Fiserv may terminate in whole or in part (a) the Fiserv
Service and any or all portions of the Exhibits to which the Fiserv Service
relates and/or Client's access to and use of such Fiserv Services if such
failure to pay relates to a particular Fiserv Service or related Fiserv
Services, or (b) this Agreement and/or Client's access to and use of Fiserv
Services, including applicable licenses as described in subsection 9 (j) if such
failure to pay relates to the Agreement in its entirety.

    


    (c) Remedies. Remedies
contained in this Section 9 are cumulative and are in addition to the other
rights and remedies available to Fiserv under this Agreement, by law or
otherwise.

    


    (d) Defaults. If
Client:

    


    (i) fails
to cure its material breach, or falls to pay amounts due, each as set forth in
Section 9(b);

    


    (ii)
deconverts any data or information from the Fiserv System either without
Fiserv's prior written consent or in violation of this Agreement; or (iii)
commits an act of bankruptcy or becomes the subject of any proceeding under the
Bankruptcy Code or becomes insolvent or if any substantial part of Client's
property becomes subject to any levy, seizure, assignment, application, or sale
for or by any creditor or governmental agency;

    


    (iii)
violates any of the License, or Use provisions of Exhibit M or related Exhibits
M - n or Non Assignment or confidentiality provisions of this Agreement as
relates to Software licensed pursuant to Exhibit M, and fails to remedy any such
breach within 5 days of notice thereof from Fiserv;

    


    then, in
any such event, Fiserv may, upon written notice, terminate this Agreement, or
the applicable Fiserv Service as described in Section 9 (b) above, and be
entitled to recover from Client as liquidated damages an amount equal to the
Termination Fees as set forth herein:

    


    
      
        
        

      

      
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    Termination
Fee Table:

    


    
      	
              Event
      of Termination of the Agreement in whole.

            	
              Termination
      fee for termination in any of years 1 through 5

            	
              Termination
      Fee for termination in any of years 6 or 7

            
	
              Termination
      pursuant to Section 9 (b) herein

            	
              $5,000,000

            	
              $4,000,000

            
	
              Termination
      pursuant to Section 9 (e) herein where such termination is to move
      Services to a competitor of Fiserv's

            	
              $7,500,000

            	
              $6,000,000

            
	
              Termination
      pursuant to Section 9 (e) herein generally, or where such termination is
      due to merger with or acquisition of Client

            	
              $5,000,000

            	
              $4,000,000

            


    

    


    The
Termination Fee for termination of a particular Fiserv Service or Exhibit shall
be calculated by taking as the prorata share of the average Monthly Services
Fees for the Fiserv Service being terminated for the 6-month period preceding
the effective date of termination divided by the average Total Monthly Services
Fees for the Fiserv Services for the 6-month period preceding the effective date
of termination times the Termination Fee amount in the table herein, Monthly
Services Fees shall mean the Monthly Fees specific to the Fiserv Services
provided in Exhibit 1 to this Agreement and excluding pass-through charges.
Client agrees to reimburse Fiserv for any expenses Fiserv may incur, including
reasonable attorneys' fees, in taking any of the foregoing actions.

    


    (e) Convenience; Early
Termination. Client may at its option terminate the Account Processing
Services set forth Exhibits A and related A - n beginning in June, 2012 with no
Termination Fee and move such processing to Client's data center or other Client
designated data center, provided such data center is not a managed facility of a
Fiserv Competitor as set forth in Appendix 4 to this Agreement and subject to
the Client remaining current in its license and maintenance obligations as set
forth in Exhibits M and related M - n. If Client terminates this Agreement or
reduces or terminates Fiserv Services for any reason other than pursuant to
Section 9 (b)(i), Client shall pay a termination fee based on the Termination
Fee Table in this Section 9. For the avoidance of doubt, the Termination Fee
shall not apply to a normal attrition of volumes for which Services are
provided, provided that such attrition of volumes does not also constitute a
breach of Section 12(l) of the Agreement.

    


    (f) Liquidated Damages.
Client understands and agrees that Fiserv losses incurred as a result of early
termination of the Agreement would be difficult or impossible to calculate as of
the effective date of termination since they will vary based on, among other
things, the number of Clients using the Fiserv System on

    the date
the Agreement terminates. Accordingly, the amounts set forth in Sections 9 (d)
and (e) represent Client's agreement to pay and Fiserv's agreement to accept as
liquidated damages (and not as a penalty) such amount for any such
termination.

    


    (g) Duty to Mitigate.
Each party shall use commercially reasonable efforts, and will cooperate with
the other party, to minimize any damages or other costs resulting from
termination hereunder.

    


    (h) Termination Assistance
Services. Promptly following Client giving or receiving any notice of
termination under this Agreement, Client, if it desires Fiserv's assistance in
affecting an orderly transition from Fiserv Services to the services of itself
or a third party during the termination assistance service period ("Transition
Services"), shall request such Transition Services. The scope of Transition
Services shall be mutually agreed in writing between the parties. Client shall
pay Fiserv at its then current contracted services rates, as set forth in
Exhibit 1, for the in scope Transition Services. Client shall pay Fiserv at its
then current published rates for those Transition Services that are not in scope
of or contemplated in this Agreement. Client shall also pay to Fiserv all then
due outstanding Fees, including, if any, Termination Fees, Services Fees due,
owing, or becoming due as part of Termination. Fiserv shall not be obligated to
perform any Transition Services prior to receipt of all outstanding Fees from
Client. In the event of termination by Fiserv for Client's failure of Client to
pay Fees, Client shall pay all Fees associated with the Transition Services as
well as the applicable Fiserv Services to be provided through the projected date
of termination, (hereinafter "End Date"), in advance of Fiserv's provision of
any such Services. In all other cases Client payments for Fees shall continue in
accordance with the Agreement. On the End Date, Client shall make payment of all
remaining Fees prior to Fiserv providing Client's final customer data
files.

    


    (i) Deconversion Charges.
Client agrees to pay Fiserv's then-current deconversion charges in connection
with Client's deconversion from the Fiserv System. Upon termination or
cancellation of the Card Services set forth in Exhibit G, the Fiserv fee for
deconversion is $2,500.00 and Client shall pay for destruction or shipping of
any plastic card stock and related materials owned by Client in Fiserv's
possession.

    


    (j) For
the avoidance of doubt, the provisions of the Agreement and its Exhibits remain
in full force and effect through and including the End Date. The quality and
level of performance through and including the End Date shall not be degraded.
After End Date, Fiserv shall, at Client's expense (1) answer questions from
Client regarding the terminated Services on an "as needed' basis and
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    deliver
to Client or destroy any remaining Client-owned reports, data and documentation
relating to the terminated Services still in Fiserv's possession. Any
programming required to provide such information to Client will be billed as per
Section 9(h) above.

    


    (k) The
termination of the Agreement or Exhibit M shall automatically, and without
further action by Fiserv, terminate and extinguish the license granted under
Exhibit M, and all rights in and to the Software System shall automatically
revert irrevocably to Fiserv. Fiserv shall have the right to require Client
cease use of the Software and Fiserv shall have the right to take immediate
possession of the Software System and all copies thereof wherever located
without further notice or demand.

    


    (1) Upon
any termination or expiration of Exhibit D, Client understands and agrees that
all rights of Customers with respect to the Products, BANKLINK Software, and
Fiserv trademarks related to such shall automatically cease and
terminate.

    


    (m)
Fiserv reserves the right, without any liability to Client or its Customers, to
terminate the telecommunication component of Exhibit D at any time upon prior
written notice to Client in the event the relationship between Fiserv and
applicable third party suppliers of services or products terminates, which
termination would adversely affect Fiserv's ability to perform this Exhibit. In
such event, Fiserv shall use commercially reasonable efforts to replace such
third party supply of telecommunication component to avoid adverse impact on
Fiserv's provision of the Services.

    


    (n) Service
Modifications. In connection with Fiserv' provision of WireXchange
Services, either party may terminate WireXchange Services, or any part thereof,
without Termination Fee, immediately upon notice to the other party of any
legislative, regulatory, or judicial (i) impairment of the provision thereof;
and/or (ii) restrictions or conditions that would materially affect the
integrity thereof.

    


    (o)
Project Service Termination. At Client's sole option, Client may terminate any
Work Order, Implementation Project, or Development Project upon 30 days prior
written notice to Fiserv, provided that Client agrees to pay Fiserv for any
Project Services Fees due, owing or becoming due for the Project Services
rendered prior to the effective date of termination. In no event shall Fiserv be
liable for refund of any Development Fees already paid by Client. However, with
regard to Implementation Fees, any applicable pre-paid and unearned fees shall
be returned to Client

    


    (p)
Holdover. Upon any termination or expiration of Exhibit B, Item Processing
Services provided subsequent to the initial End Date will be charged at
then-current fees being charged to Client, plus a holdover premium of 25% for
all Item Processing Services provided after the originally-scheduled End
Date.

    


    10. Dispute Resolution.
(a) Informal. Before initiating
arbitration or other legal action against the other relating to a dispute
herein, the parties agree to work in good faith to resolve disputes and claims
arising out of this Agreement. To this end, either party may request in writing
that within two business days of receipt of a notice from either Party
specifying the nature of the dispute each party will designate an officer or
other management employee with authority to bind such party to meet to resolve
the dispute or claim. If the dispute is not resolved within 15 days of the
commencement of informal efforts under this paragraph, either party may request
in writing that within two business days of receipt of a notice from either
Party specifying the nature of the dispute escalate the issue to a higher level
of management employee within each party to work in good faith to resolve the
dispute or claim. If the dispute is not resolved within 10 days of the
commencement of this second level of informal effort under this subsection 10
(a), either party may pursue formal dispute resolution. This paragraph will not
apply if. (i) expiration of the applicable time for bringing an action is
imminent; or (ii) injunctive or other equitable relief is necessary to protect a
party's proprietary rights.

     

    (b) Arbitration. Except
with respect to disputes arising from a misappropriation or misuse of either
party's proprietary rights, any dispute or controversy arising out of this
Agreement or its interpretation that is not resolved under Section 10(a), may be
submitted to and resolved by arbitration under the then prevailing rules of
Judicial Arbitration and Mediation Services, Inc. (JAMS). A party seeking
arbitration shall submit written notice of its request for arbitration to the
other party, setting forth the specifics of the claim being made. If the parties
agree to arbitrate such dispute, a formal demand for arbitration shall be
submitted to JAMS by such requesting party. The arbitration shall be heard
before an arbitrator mutually agreeable to the parties; provided, that if the
parties cannot agree on the choice of arbitrator within 10 days after the
parties agree to arbitrate, then the arbitration shall be heard by 3
arbitrators, 1 chosen by each party, and the third chosen by those 2
arbitrators. The arbitrators will be selected from a panel of persons having
experience with and knowledge of information technology and at least 1 of the
arbitrators selected will be an attorney. Discovery shall not be permitted. A
hearing on the merits of all claims for which arbitration is sought by either
party shall be commenced not later than 60 days from the date demand for
arbitration is submitted to JAMS. The arbitrator(s) must render a decision
within 10 days after the conclusion of such hearing. Any award in such
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    and
binding upon the parties and the judgment thereon may be entered in any court of
competent jurisdiction.

    


    (c) Applicable Law. The
arbitration shall be governed by the United States Arbitration Act, 9 U.S.C.
§§1-16 and the Federal Rules of Evidence. The arbitrators shall apply the
substantive law of the State of Pennsylvania, without reference to provisions
relating 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 this Agreement,
nor to grant any extension, renewal, or continuance of this Agreement. The
arbitrators shall have the authority to grant any legal remedy available had the
parties submitted the dispute to a judicial proceeding.

    


    (d) Situs. If arbitration
is used to resolve any disputes between the parties, the proceedings to resolve
any such dispute shall be held in Harrisburg, Pennsylvania.

    


    11. Audit. (a) General. Fiserv
employs an internal auditor responsible for ensuring the integrity of its
processing environments and internal controls. In addition, Fiserv provides for
periodic independent audits of its operations, which shall include an annual
SAS-70 Type II audit to the extent required by law or regulation. Fiserv shall
provide Client with a copy of such independent audit report of the Fiserv
service center providing Services within a reasonable time after its completion,
where such time shall not exceed [ 30 days ]. Fiserv will meet with Client
within a reasonable period of time after receipt of Client's written request to
review deficiencies, if any, noted in such audit report. Fiserv will develop and
implement an action plan to address and resolve any material deficiencies within
a commercially reasonable time at Fiserv's expense.

    


    (b) Regulatory. As
specifically permitted by law and regulation, Fiserv acknowledges and agrees
that regulators shall be permitted to audit Fiserv's performance under this
Agreement at any time during Fiserv's normal business hours.

    


    (c) Billing Records. Upon
Client's reasonable request in writing, Fiserv shall provide Client with
documentation supporting the amounts invoiced by Fiserv hereunder for the
12-month period preceding such Client request. If such documentation reveals the
amounts paid to Fiserv exceed the amounts to which Fiserv is entitled and such
amounts are independently verified, Fiserv shall promptly remit the amount of
such overpayment.

    


    (d) Regulatory Reported
Issue. In the event Client's regulator identifies an area of deficiency
in Client's business operations that is directly provided by Fiserv through
Fiserv Services and requires Client to obtain an independent audit of such
function or service, or if such regulator issues a criticism or directive that
Client reasonably believes requires an independent audit of such function or
service, Client shall have the right to request that Fiserv have such deficiency
included in Fiserv's next SAS70 type II audit if such audit is to begin
within [ 90 ] days of Client's and Fiserv's mutual written agreement of the
scope, or Fiserv shall initiate a targeted audit of such function or service for
the specific issue(s) raised by the regulator within [ 90 ] days of Client's and
Fiserv's mutual written agreement of the scope at Client's expense. In such
event, Client and Fiserv shall mutually agree upon the scope of such audit,
ensuring that such scope is consistent with the direction of the regulator.
Fiserv shall review the results of such audit with Client for the purpose of
addressing Client's regulator's claim of deficiency. Fiserv will develop and
implement an action plan to address and resolve any material deficiencies within
a commercially reasonable time at Fiserv's expense.

    


    12. Services
Terms.  (a) General. This Section
12 shall apply to the following Services, and any other processing Services, to
the extent any such Services are added as Exhibits to this
Agreement:

    
      	
               
      

            	
              •

            	
              Account
      Processing Services

            


    

    
      	
               
      

            	
              •

            	
              Item
      Processing Services

            


    

    
      	
               
      

            	
              •

            	
              Item
      Processing Disaster Recovery
Services

            


    

    
      	
               
      

            	
              •

            	
              EFT
      Services

            


    

    
      	
               
      

            	
              •

            	
              iLINK
      Products and Services

            


    

    
      	
               
      

            	
              •

            	
              eLending
      Services

            


    

    
      	
               
      

            	
              •

            	
              WireXchange
      Services

            


    

    
      	
               
      

            	
              •

            	
              Card
      and Fulfillment Services

            


    

    
      	
               
      

            	
              •

            	
              Web
      Hosting Services

            


    

    
      	
               
      

            	
              •

            	
              E-Commerce
      Services

            


    

    
      	
               
      

            	
              •

            	
              Consumer
      Advantage Services

            


    

    


    (b) Additional
Services.

    


    (i) Implementation
Services. For the fees, if any, set forth in the Exhibits, Fiserv will
provide Implementation Services to the extent applicable to the Services. "Implementation
Services" means services: (A) to convert Client's existing applicable
data and/or information to the Services, and/or (B) to implement the Services.
Client agrees to provide all necessary cooperation, information and assistance
in connection with Implementation Services to facilitate conversion and/or
implementation. Client is responsible for all pre approved out-of-pocket
expenses reasonably incurred by Fiserv in connection with Implementation
Services.

    


    (ii)
Training
Services. To the extent applicable to the Fiserv Services, Fiserv shall
provide training, training aids, user manuals, and other documentation for
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    Client
personnel to become familiar with Fiserv Services, for the fees, if any, set
forth in the Exhibits. If requested by Client, classroom training in the use and
operation of Fiserv Services will be provided at a training facility as mutually
agreed between the parties.

    


    (c) Fiserv
Obligations.

    


    (i) Client Policies.
While assigned to provide Services at a Client location or otherwise visiting
Client's facilities, Fiserv employees will: (A) comply with Client's reasonable
safety and security procedures and other reasonable Client rules applicable to
Client personnel at those facilities to the extent all such procedures and rules
are provided to Fiserv in writing and in advance, (B) comply with all reasonable
requests of Client personnel, as applicable, pertaining to personal and
professional conduct, and (C) otherwise conduct themselves in a professional and
businesslike manner.

    


    (ii)
Changes. Fiserv
may make changes in its methods of delivering the Services, including but not
limited to operating procedures, type of equipment or software resident at, and
the location of Fiserv's service center(s). Fiserv will notify Client prior to
implementing any material change that affects Client's normal operating
procedures, reporting, or internal service costs. For clarity, Fiserv is
obligated by this Agreement to perform the Services in accordance with the
Exhibits. Fiserv will use commercially reasonable efforts to minimize any impact
of such changes upon its Clients generally, including the conduct of reasonable
investigation to determine the likely impact of the changes. Client will
participate in applicable testing upon Fiserv's prior written request and based
on a scope mutually agreed in writing between the parties.

    


    (iii)
Client Systems
Access. If Fiserv accesses Client Systems, Fiserv will: (A) use this
access only to provide Fiserv Services to Client; and/or (B) ensure that the
Fiserv System includes up-to-date anti-viral software designed to prevent
viruses from reaching Client Systems through the Fiserv System.

    


    (iv)
Fiserv shall provide procedures and operating instructions for use of Services
and the Fiserv System.

    


    (d) Client
Obligations.

    


    (i) Procedures. Client
agrees to comply with Fiserv's procedures and operating instructions for use of
Services and the Fiserv System.

    


    (ii)
Client caused
errors. Client agrees that Client shall be solely responsible for Service
problems caused by Client's alterations or modifications to the Services,
misapplication or misuse of Services, use of the Services other than as
specified in Section 13 (d) (i) above or by Client's failure to perform
responsibilities listed under the Client Responsibilities section of the
Exhibits as applicable.

    


    (iii)
Communication Lines,
Terminals, Equipment Software. Client will provide or procure from Fiserv
at Client's expense all communication lines, terminals, equipment, computer
software, and interface devices (collectively, "Client Equipment") required
to access the Fiserv System and to transmit and receive data and information
between Client's location(s), Fiserv's service center(s), and/or other necessary
location(s). All Client Equipment is subject to approval by Fiserv and shall be
compatible with the Fiserv System. If Client has elected to provide such items
itself, Fiserv shall provide Client with a list of compatible equipment and
software. Client agrees to pay Fiserv's standard fee for recertification of the
Fiserv System resulting from Client's use of non-compatible Client Equipment. If
Fiserv provides such items, Client agrees to pay charges relating to the
installation and use of Client Equipment as set forth in the Exhibits or, if not
set forth in the Exhibits, as is reasonably agreed to between the
parties.

    


    (iv)
Input. Client
shall be solely responsible for the input, transmission, or delivery to and from
Fiserv (whether delivered to or from Client site(s) or any applicable
clearinghouse, regulatory agency, or Federal Reserve Bank) of all information
and data required by Fiserv to perform Services unless Client has retained
Fiserv to handle such responsibilities, as specifically set forth in the
Exhibits. The information and data shall be provided in a format and manner
approved by Fiserv. Client shall determine and be responsible for the
authenticity and accuracy of all information and data submitted to
Fiserv.

    


    (v) Client Personnel.
Client shall designate appropriate Client personnel for training in the use of
the Services, shall supply Fiserv with reasonable access to Client's site during
normal business hours for Implementation Services, and shall
cooperate  with Fiserv personnel in their performance of
Services.

    


    (vi)
Client Review.
Client shall review all reports furnished by Fiserv for accuracy, and shall work
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    Fiserv to
reconcile any out of balance conditions or discrepancies.

    


    (vii)
Client Systems.
Client shall ensure that Client Systems: (A) are capable of passing
and/or  accepting data from and/or to the Fiserv System, and (B)
include up-to-date anti-viral software designed to prevent viruses from reaching
the Fiserv System through Client Systems.

    


    (viii)
Client shall provide advance written notice to Fiserv of Client's reasonable
safety and security procedures and other reasonable Client rules applicable to
Fiserv personnel while at Client facilities.

    


    (ix) With
respect to each exhibit pursuant to which Client provides access to Fiserv
Services to Customers, Client shall be responsible for the performance or
non-performance by each Customer of all Customer obligations under the
agreements between Client and such Customer, and shall be primarily liable to
Fiserv for all actions and omissions of each such Customer.

    


    (e) Disaster
Recovery.

    


    (i) General. Fiserv
maintains a disaster recovery plan ("Disaster Recovery
Plan") for each Service. A "Disaster" shall mean
any unplanned interruption of the operations of or inaccessibility to Fiserv's
service center in which Fiserv, using reasonable judgment, requires relocation
of processing to a recovery location. Fiserv shall notify Client as soon as
possible after the occurrence of a Disaster and shall comply with the Disaster
Recovery Plan. Fiserv shall move the processing of Client's standard services to
the extent such Services are affected by such Disaster, to a recovery location
as expeditiously as possible and shall coordinate the cut-over to back-up
telecommunication facilities with the appropriate carriers. Client shall
maintain adequate records of all transactions during the period of service
interruption and shall have personnel available to assist Fiserv, with any
actions required of Client provided such actions can be performed at Clients
location, in implementing the switch-over to the recovery location. During a
Disaster, optional or on-request services shall be provided by Fiserv only to
the extent adequate capacity exists at the recovery location and only after
stabilizing the provision of base services.

    


    (ii)
Communications.
Fiserv shall work with Client to establish a plan for alternative communications
in the event of a Disaster.

    


    (iii)
Disaster Recovery
Test. Fiserv shall test the Disaster Recovery Plan annually. Client
agrees to participate in and assist Fiserv with such test, if requested by
Fiserv. Upon Client's written request or as mutually agreed between Client's
information security officer or designee and Fiserv's relationship manager, test
results will be made available to Client's management, regulators, auditors, and
insurance underwriters.

    


    (iv)
Client
Plans.  Fiserv agrees to release information necessary to allow
Client's development of a disaster recovery plan that operates in concert with
the Disaster Recovery Plan.

    


    (v) No Warranty. Client
understands and agrees that the Disaster Recovery Plan is designed to minimize,
but not eliminate, risks associated with a Disaster affecting Fiserv's service
center(s). No performance measures, standards, or service level agreements shall
be applicable for the duration of a Disaster. However, in the performance of any
Services at a recovery site during any period of disaster recovery, Fiserv will
employ commercially reasonable efforts to perform such Services correctly.
Client maintains responsibility for adopting a disaster recovery plan relating
to disasters affecting Client's facilities and for securing business
interruption insurance or other insurance necessary for Client's
protection.

    


    (f) Lost Records. If
Client's records or other data submitted for processing are lost or damaged as a
result of any failure by Fiserv, its employees, or agents to exercise reasonable
care to prevent such loss or damage, Fiserv'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 Client's possession.

    


    (g) Termination.

    


    (i) Return of Client Files. Upon
expiration or termination of this Agreement or any Exhibit, Fiserv shall furnish
to Client such copies of Client Files as Client may request in an industry
standard format supported by Fiserv, and shall provide such information and
assistance as is reasonable and customary to enable Client to deconvert from the
Fiserv System; provided, however, that Client consents and agrees and authorizes
Fiserv to retain Client Files until: (A) Fiserv is paid in full for all amounts
due and all Fiserv Services provided through the date such final Client Files
are returned to Client; (B) Fiserv is paid in accordance with section 9 h
Termination Assistance for the services necessary to return such Client Files;
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    Agreement
or applicable Exhibit is being terminated, Fiserv is paid any applicable
termination fee pursuant to Section 9(d) or (e); and (D) Client has returned or
destroyed all Fiserv Information in accordance with Section 3(b). Unless
directed by Client in writing to the contrary, Fiserv shall be permitted to
destroy Client Files any time after 30 days from the final use of Client Files
for processing.

    


    (ii)
Miscellaneous.  Client
is responsible for the deinstallation and return shipping of any Fiserv-owned
equipment located on Client's premises

    


    13. General.

    


    (a) Non-assignment. In
the event of the sale of 50% or more of Client's common stock, or the sale of
all or substantially all of Client's assets, or in the event of any merger in
which Client is not the surviving organization, Client may transfer this
Agreement with any of its Exhibits upon (a) Fiserv's prior written consent
(which consent Fiserv shall not unreasonably withhold, provided such acquirer is
not a competitor of Fiserv set forth in Appendix 4 and provided Client has
executed an assignment and assumption agreement of the type and form attached as
Appendix 5) and (b) payment of additional license fees for such transfer, if
applicable, at the rates set forth herein or if not so stated at Fiserv's
then-current rates.

    


    (b) Binding
Agreement; Assignment. This Agreement is
binding upon the parties and their respective successors and permitted assigns.
Except as otherwise provided herein, neither this Agreement, the licenses
provided pursuant to Exhibit M, nor any interest may be sold, assigned,
transferred, pledged, or otherwise disposed of by Client, whether pursuant to
change of control, by operation of law or otherwise, without Fiserv's prior
written consent which shall not be unreasonably withheld or unduly delayed.
Client agrees that Fiserv may subcontract any Services to be performed
hereunder; provided that any such subcontractors shall be required to comply
with all applicable terms and conditions of this Agreement, such
subcontractor(s) shall be on-shore unless Fiserv and Client mutually agree
otherwise, and Fiserv shall remain primarily liable for the performance of any
such subcontractors.

    


    (c) Entire Agreement;
Amendments. This Agreement, including its Exhibits and Appendices (if
any), which are expressly incorporated herein by reference, constitutes the
complete and exclusive statement of the agreement between the parties as to the
subject matter hereof and supersedes the Letter of Engagement dated July 23,
2008 and its extension and the Confidentiality and Non-disclosure Agreement
dated April 1, 2008 each executed between the parties, and all other previous
agreements with respect thereto. Each party hereby acknowledges that it has not
entered into this Agreement in reliance upon any representation made by the
other party not embodied herein. Modifications of this Agreement must be in a
writing which follows the Change Control Policy of this Agreement and signed by
duly authorized representatives of the parties. In the event the provisions of
any Exhibit conflict with the provisions of this Agreement, this Agreement shall
control unless the applicable Exhibit expressly provides that its provisions
control.

    


    (e) Severability. If any
provision of this Agreement is held to be unenforceable or invalid, the other
provisions shall continue in full force and effect.

    


    (f) Governing Law; Jury Trial
Waiver. This Agreement will be governed by the substantive laws of the
State of Pennsylvania without reference to provisions relating to conflict of
laws. The United Nations Convention on Contracts for the International Sale of
Goods shall not apply to this Agreement. Both parties agree to waive any right
to have a jury participate in the resolution of any dispute or claim between the
parties or any of their respective affiliates arising under this
Agreement.

    


    (g) Force Majeure.
Neither party shall be responsible for delays or failures in performance
resulting from acts of God, acts of civil or military authority, fire, food,
strikes, war, epidemics, pandemics, shortage of power, or other acts or causes
reasonably beyond the control of that party. For clarity, failure of either
party's subcontractors to perform shall not be considered a Force Majeure event.
Each party shall take commercially reasonable steps to mitigate the impact of a
Force Majeure event. The party experiencing the force majeure event agrees to
give the other party notice promptly following the occurrence of a force majeure
event, and to use diligent efforts to recommence performance as promptly as
commercially practicable. In the event that Fiserv is unable to resume the
affected Service in 30 days, Client may, at its option treat such failure as a
breach entitling Client to terminate the affected Service in a manner provided
in Section 9 (b) without payment of termination fees pursuant to Section 9 of
this Agreement.

    


    (h) Notices. Any written
notice required or permitted to be given hereunder shall be given
to:

    


    
      	 
      	
              For
      Fiserv:

            	
              President
      CBS WW

            
	 
      	 
      	
              600
      Colonial Center Parkway

            
	 
      	 
      	
              Lake
      Mary, FL 32746

            
	 
      	 
      	 
      
	 
      	
              With
      copy to

            	
              Fiserv
      General Counsel

            
	 
      	 
      	
              255
      Fiserv Drive

            
	 
      	 
      	
              Brookfield,
      WI 53045

            
	 
      	 
      	 
      
	 
      	
              For
      Client:

            	
              Chairman/President/CEO

            


    

     

    
      
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              3801
      Paxton Street

            
	 
      	 
      	
              Harrisburg,
      PA 17111

            
	 
      	 
      	 
      
	 
      	
              With
      copy to:

            	
              Chief
      Operating Officer

            
	 
      	 
      	
              3801
      Paxton Street

            
	 
      	 
      	
              Harrisburg,
      PA 17111

            


    

    


    by: (i)
Registered or Certified Mail, Return Receipt Requested, postage prepaid; (ii)
confirmed facsimile; or (iii) nationally recognized overnight courier service to
the other party at the addresses listed on the cover page or to such other
address or person as a party may designate in writing. All such notices shall be
effective upon receipt.

    


    (i) No Waiver. The
failure of either party to insist on strict performance of any of the provisions
hereunder shall not be construed as the waiver of any subsequent default of a
similar nature.

    


    (j) Prevailing Party. The
prevailing party in any arbitration, suit, or action brought against the other
party to enforce the terms of this Agreement or any rights or obligations
hereunder, shall be entitled to receive its reasonable costs, expenses, and
reasonable attorneys' fees of bringing such arbitration, suit, or
action.

    


    (k) Survival. All rights
and obligations of the parties under this Agreement that, by their nature, do
not terminate with the expiration or termination of this Agreement shall survive
the expiration or termination of this Agreement, including but not limited to
the rights and obligations of the parties described in Sections 3(b); 4(a); 8;
9(h); 10; 12(g).

    


    (1) Exclusivity. Client
agrees that Fiserv shall be the sole and exclusive provider of the services that
are the subject matter of this Agreement. For purposes of the foregoing, the
term "Client" shall include Client affiliates. Client agrees not to enter into
an agreement with any other entity to provide these services (or similar
services), and not to perform these services (or similar services) for itself,
during the term of this Agreement (i) without Fiserv's prior written consent or
(ii) unless terminated under the provisions of the Agreement. If Client acquires
another entity, the exclusivity provided to Fiserv hereunder shall apply with
respect to the level or volume of services being provided by Fiserv immediately
prior to the signing of the definitive acquisition agreement relating to such
acquisition and shall take effect with respect to such acquired entity as soon
as practicable after expiration or Client's choice for earlier termination of
such acquired entity's previously existing arrangement for these services. For
clarity, this does not require Client to terminate such existing arrangement
early. If Client is acquired by another entity, the exclusivity provided to
Fiserv hereunder shall apply with respect to the level or volume of services
provided immediately prior to the signing of the definitive acquisition
agreement relating to such acquisition and shall continue with respect to the
level or volume of such services until any termination or expiration of this
Agreement.

    


    (m) Recruitment of
Employees. Neither party shall, without the other party's prior written
consent, directly or indirectly, solicit for employment or hire any Restricted
Employee (as defined herein) within the 12-month period starting on the earlier
of. (i) termination of such Restricted Employee's employment, or (ii)
termination or expiration of this Agreement. "Restricted Employee" means any
former or current employee of a party of whom the other party became aware or
came into contact with during Fiserv's provision of Services under this
Agreement. This restriction shall not preclude either party from hiring
Restricted Employees of the other party who respond to a public advertisement
not targeted at such Restricted Employees.

    


    (n) Publicity. Client and
Fiserv shall have the right to make general references about each other and the
type of services being provided hereunder to third parties, such as auditors,
regulators, financial analysts, and prospective customers and Clients, provided
that in so doing Client or Fiserv does not breach Section 3 of this Agreement.
The parties may mutually agree on a press release relating to the execution of
this Agreement. In conjunction with this, the party initiating such release
shall give the other party a reasonable opportunity to review and approve the
content thereof prior to its release.

    


    (o)
Client agrees in using Fiserv's trademarks to adhere to the rules and
regulations for trademark use and to abide by any graphic standards provided by
Fiserv to Client. All packages, labels, designs, descriptive material, user
manuals and advertising of every type developed by Client that includes any such
trademarks, shall be subject, at Fiserv's request, to Fiserv's prior approval.
Advertising and other materials developed and distributed by Fiserv may be used
by Client without Fiserv's prior approval. Client shall not use such trademarks
with or without any word or words, as part of its corporate name, or any similar
name that might, when either written or spoken, be confused with such
trademarks. Fiserv expressly reserves all rights related to such trademark use,
including without limitation, all good will associated therewith.

    


    (p)
Fiserv agrees in using Client's trademarks to adhere to the rules and
regulations for trademark use and to abide by any graphic standards provided by
Client to Fiserv. All packages, labels, designs, descriptive material, user
manuals and advertising of every type developed by Fiserv that includes any such
trademarks, shall be subject, at Client's request, to Client's prior approval.
Advertising and other materials developed and distributed by Client


     

    
      
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    may be
used by Fiserv without Client's prior approval. Fiserv shall not use such
trademarks with or without any word or words, as part of its corporate name, or
any similar name that might, when either written or spoken, be confused with
such trademarks. Client expressly reserves all rights related to such trademark
use, including without limitation, all good will associated
therewith.

    


    (q) Independent
Contractors. Client and Fiserv expressly agree they are acting as
independent contractors and under no circumstances shall any of the employees of
one party be deemed the employees of the other for any purpose. This Agreement
shall not be construed as authority for either party to act for the other party
in any agency or other capacity, or to make commitments of any kind for the
account of or on behalf of the other except as expressly authorized
herein.

    


    (r) No Third Party
Beneficiaries. No third party shall be deemed to be an intended or
unintended third party beneficiary of this Agreement.

    


    (s) Ongoing Relationship
Management. Client and Fiserv shall designate a relationship manager for
the term of the Agreement. Such designated Fiserv and Client relationship
managers will review, either in person or via telephone, information regarding
the performance under this Agreement, including the Monthly Reports as defined
in Exhibit 2. The date, time, and location of the reviews shall be by mutual
agreement between the parties.

    


    (t) Insurance. During
term of this Agreement, Fiserv will, at its own expense, carry and maintain the
insurance coverage specified below (all monetary values are in United States
Dollars) with insurance companies rated A-VIII or higher by A. M. Best Company,
or if no longer available, a similar rating company:

    


    
      	
               
      

            	
              i.

            	
              Workers
      Compensation in compliance with statutory
  limits.

            


    

    
      	
               
      

            	
              ii.

            	
              Employers
      Liability ("EL")
      with limits of $1,000,000/$1,000,000, $1,000,000.

            	
               

            


    

    
      	
               
      

            	
              iii.

            	
              Commercial
      General Liability ("CGL") with limits of $1,000,000 per occurrence and
      $2,000,000 general aggregate for bodily injury, personal injury and
      property damage. Coverage shall include contractual liability, products
      and completed operations, independent
  contractors.

            


    

    
      	
               
      

            	
              iv.

            	
              Automobile
      Liability ("AL") covering liability arising out of any auto (owned, hired
      and non owned) if used in connection with Services to be performed under
      this Agreement with combined single limits for bodily injury and property
      damage of $1,000,000 per
occurrence.

            


    

    
      	
               
      

            	
              v.

            	
              Umbrella
      Liability excess of CGL, EL and AL on an occurrence form with limits of
      $5,000,000 per occurrence and
aggregate.

            


    

    
      	
               
      

            	
              vi.

            	
              Commercial
      Crime insurance providing employee theft coverage for financial loss
      sustained by Client caused by the dishonesty of Vendor's employees in the
      servicing of this Agreement with limits of $5,000,000 per
      occurrence.

            


    

    


    Upon
request, Fiserv will cause to have furnished to Client certificate(s) of
insurance that evidence that all insurance required under this Agreement is in
force, such certificate to stipulate that the insurance will not be canceled or
materially changed while this Agreement is in effect without thirty (30) days
prior written notice to COMMERCE.

    
       

      
        
          

        

      

    

    


    IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized representatives as of the Effective Date.

    


    
      	
              For
      Client:

            	
              For
      Fiserv:

            
	 
      	 
      
	
              Commerce
      Bank Harrisburg, N.A.

            	
              Fiserv
      Solutions, Inc.

            
	
              By:
      /s/ Gary L.
      Nalbandian

            	
              By:
      /s/ Tony
      Catalfano

            
	
              Name:
      Gary L. Nalbandian

            	
              Name:
      Tony Catalfano

            
	
              Title:
      Chairman/President/CEO

            	
              Title:
      President

            
	 	 
	 	 
	 	 
	 	 
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