**Exhibit10.29**

 

**MONEYACCESS SERVICE® PROCESSING AGREEMENT**

 

MONEYACCESS SERVICE Processing Agreement (“Agreement”) is dated                   ,2002 by and between MONEY ACCESS SERVICE INC. with offices located at 1100 CarrRoad, Wilmington, Delaware  19809(“MAS”, “we” or “us”) and HERITAGE OAKS BANK with offices located at 545TWELFTH STREET, PASO ROBLES, CALIFORNIA 93446 (“User” or “you”).

 

Background

 

MAS provides Electronic Fund Transfer processing for automated tellermachine, point of banking and point of sale Terminals and accessed by usingcertain plastic cards with magnetically encoded stripes issued by financialinstitutions to their account holders allowing such account holders to performcertain banking, financial and purchase Transactions. Additionally, MAS offersservices for the authorization of Transactions and provides Gateway services tovarious EFT Networks, as well as certain other EFT services (“MAS ProcessingServices”).  User desires to purchaseand use MAS Processing Services.

 

NOW, THEREFORE, in consideration of the mutual premises hereincontained, MAS and User agree to be legally bound by the terms of thisAgreement as hereinafter set forth.

 

1.             DEFINED TERMS.

 

All capitalized terms used in this Agreement and not otherwise definedherein shall have the meanings set forth in Exhibit A attached hereto and madea part hereof.

 

2.             MAS PROCESSING SERVICES.

 

You hereby agree to use MAS as the processor of Transactions conductedby your Cardholders and/or at your Terminals. You understand and agree that MAS may provide the services hereunderthrough any of its affiliates.  Whileyou are a User of MAS Processing Services under this Agreement, you elect tointerface with MAS in one of the following modes:

 

Full Service

Authorization Processor

Cooperative Authorization Processor

Intercept Processor

Independent Sales Organization (ISO)

 

You understand and agree that the mode youelect now for your Interface to MAS will govern you for the duration of thisAgreement.  You may elect to use any orall of the following MAS Processing Services set forth below; however, youagree that during the term of this Agreement we shall be the exclusive providerto you of any of the services described below which you elect:

 

(i)            MASAuthorization Services.  In accordancewith your Cardholder information you will supply to us, we will authorize ordecline Transaction requests received from any Terminals at which yourCardholders have access or any Networks in which you participate by ourcomparison to your Cardholder information which can consist of any of thefollowing:  (a) real time accountrecords, (b) daily account balances or (c) parameter instructions.

 

(ii)           MASTerminal Driving Services.  We willestablish a direct electronic connection between the ATM and/or POB Terminalsyou operate and our switch in order to operate, supervise and monitor suchTerminals for you.

 

(iii)          GatewayServices.  We will provide GatewayServices as agreed to in the attached

 

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addendum,which may be amended from time to time by the parties.

 

(iv)          AdditionalServices.  We also offer an array ofadditional MAS Processing Services from which you may select to complement yourElectronic Fund Transfer products. These Processing Services include telephone banking, bill payment, self servicebanking and Cardholder service charge products.  You shall indicate your selection of additional MAS ProcessingServices on the Specification Forms you complete, and execute an addendum tothis Agreement for each such service you desire.  From time to time we may introduce new Processing Services whichyou may select by executing a further addendum to this Agreement.

 

3.             SUPPORT AND TERMINAL LOCATION

 

(a)           Support Equipment andTerminals. You agree to purchase or lease and install such ATM and POB Terminalsas you desire to operate and you agree to obtain and maintain in good workingorder at your expense the data processing and communications equipment which isnecessary and appropriate to facilitate the provision of MAS ProcessingServices.  You shall independentlydetermine the locations of the Terminals you choose to operate in accordancewith the rules of the Networks you join and subject to any necessary regulatoryapprovals.

 

(b)           Location of Terminals.

 

(1)  United States and itsTerritories.  You agree that subject toSection 3b. (2) of this Agreement, the MAS Processing Services to be providedunder this Agreement shall only occur at Terminals located in the United Statesof America or its territories.

 

(2)  Outside of the UnitedStates or its Territories.  If youdesire to receive MAS Processing Services at any Terminal located outside ofthe United States of America, you agree to first provide MAS with a writtenschedule of any country or countries in which you intend to receive MASProcessing Services.  You may not obtainMAS Processing Services for Terminals located outside of the United States ofAmerica and its territories without MAS’s prior written approval.  If MAS agrees to provide such services toyou, that approval will be, subject to the following conditions and otherconditions to which the parties agree at the time:

 

(i) We can terminate the provision of MAS Processing Services in any countryat any time and without being deemed to be in breach of the MAS ProcessingAgreement if we, in our sole discretion, determine that continued provision ofservice to Terminals located in such country could adversely impact MAS.  If we terminate the provision of MASProcessing Services in a particular country, we will provide you with sixty(60) days’ prior notice of such termination, unless exigent circumstancesexist.

 

(ii) If any provision of the Agreement is declared or found to be illegal,unenforceable or void under the laws of any country (“Voided Provision”), forpurposes of the laws of the specific country in which the provision is void,the Agreement will be construed as if not containing the Voided Provision, andthe rest of the Agreement will remain in full force and effect, and the rightsand obligations of the parties hereto shall be construed and enforcedaccordingly under the laws of that country; provided, however, that the partiesconsent to the enforcement of the entire Agreement, including the VoidedProvision, under the laws of the State of Delaware.

 

(iii)  The parties hereto affirmativelyconsent that interpretation, construction and performance of this Agreement,including the provision of MAS Processing Services in any country outside ofthe United States of America or its territories, shall be governed by andconstrued and enforced in accordance with the laws of the State of Delawarewithout regard to the principle of conflicts of laws.  The parties also consent to the jurisdiction and venue in theDelaware courts with respect to the enforcement of any matter under this Agreement,regardless as to the location of any Terminal receiving MAS

 

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Processing Services.

 

(iv)  You have obtained allnecessary authorizations required under the laws, regulations and codeprovisions of each country in which you seek to receive MAS ProcessingServices.

 

(v)  You are not aware of anyprovision of the law, regulation or code under the laws of each country inwhich you seek to receive MAS Processing Services that would prevent (a) theprovision of the MAS Processing Services to you or (b) the enforcement of thisAgreement in accordance with its terms. During the term of this Agreement, the parties also agree to promptlynotify each other of the enactment or promulgation of any provision of the law,regulation or code under the laws of each country in which you seek to receiveMAS Processing Services that would prevent (a) the provision of the MASProcessing Services or (b) the enforcement of this Agreement in accordance withits terms.

 

4.             USER SPECIFICATIONS.

 

We will perform our processing in accordance with your instructions andinformation provided to us on our Specification Forms and the rules of theNetworks you join.

 

5.             FEES.

 

(a)           Scheduleof Fees.  You agree to pay our fees andcharges set forth on the Schedule of Fees attached hereto as Exhibit B andExhibit C for our MAS Processing Services. Further, you agree to pay all third party charges (including, but notlimited to, our charges related to telecommunications services and transportationexpenses) incurred in connection with our provision of MAS Processing Services,including all fees imposed by any Network to which we provide you GatewayService incurred in connection with your participation in, or processing orsettlement of Transactions in such Network. You agree that if we add new MAS Processing Services or Transactiontypes during the term of this Agreement we may amend the Schedule of Fees toadd charges for such new services or Transaction types at any time. Any serviceperformed by us at your request or as necessitated by your act or failure toact which is beyond the scope of the MAS Processing Services you select on theSpecification Forms shall be billed to you at our standard rates then in effectincluding charges for personnel and computer time, equipment, supplies,out-of-pocket costs and other expenses which you agree to pay us. Commencingupon execution of this Agreement, all applicable fees and charges shall bepayable upon invoice to you.  We willsubmit monthly statements for the fees, charges, supplies and other costspayable by you pursuant to this Agreement. Payment will be made in accordance with Section 6 hereof.  The Schedule of Fees may be modified by MASonce each calendar year upon one hundred twenty (120) days prior writtennotice, provided that any interchange, issuer reimbursement, pass-through orthird party fees may be modified from time to time as set forth in priorwritten notice from MAS.

 

(b)           Taxes.  In addition to the applicable standard feesand charges for MAS Processing Services and any other service we perform foryou, you agree to pay all federal, state and local taxes assessed as well asall other expenses, fees and charges imposed by a governmental entity arisingout of or incidental to your use of MAS Processing Services other than thosetaxes, expenses, fees or charges which are based on the net income or propertyof MAS.

 

6.             CLEARING ACCOUNT.

 

For payment of the fees, charges, expensesand taxes, if any, due and owing to MAS under this Agreement, you willestablish and maintain for the term of this Agreement a clearing account at afinancial institution designated or approved by us.  If you have executed a STAR Member Institution Agreement or a MACNetwork Participation Agreement and already have established a clearing accountpursuant thereto, then for purposes of this Agreement you hereby grant MASauthorization to

 

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effect credits to and debits from suchclearing account for payment of the fees, charges, expenses and taxes due andowing to MAS under this Agreement.  Youagree to execute any documentation required by us or by the designatedsettlement bank to grant authority to us to debit or credit such account.  You agree to maintain at all times in theclearing account a balance sufficient to pay all amounts due and owing to MASunder this Agreement.  User herebygrants and authorizes MAS to exercise a right of set-off against funds payableto User pursuant to this Agreement or any other agreement between MAS and Userand other funds, including any pledge accounts, that User maintains with MAS orany Network.  MAS may apply all suchamounts as payment on User’s obligations in a priority or order of paymentdetermined by MAS in its sole discretion.

 

7.             CONFIDENTIALITY OF INFORMATION.

 

You acknowledge that we have, through the expenditure of a significantamount of time, effort, costs and research, developed and/or secured the rightto use various computer programs, forms, logos, manuals, and related materials,including our operating procedures and technical specifications, whichconstitute property of great value and/or trade secrets, and that disclosure toothers of such materials may result in loss or irreparable damage to us.  Accordingly, you in your use of our MASProcessing Services agree to hold and use any and all such property orinformation in confidence, and not to disclose, reveal, copy, sell, transfer,sub-license, assign or distribute any part or parts of it, in any form, to anyindividual, firm, corporation, or other entity, or permit any of youremployees, agents or representatives to do so, except as expressly permitted inwriting by us.  You further agree thatupon termination of your use of MAS Processing Services for any reason, youwill immediately return all such property to us.

 

We acknowledge that, in your use of our MAS Processing Services, youmay disclose to us certain confidential information relating to yourCardholders (if applicable). Accordingly, we agree to hold and use any and allsuch Cardholder information in confidence, and not to disclose, reveal, copy,sell, transfer, assign or distribute any part or parts of it, in any form, toany person or entity, or permit any of our employees, agents, or representativesto do so, except as expressly permitted in writing by you or as required byapplicable law.

 

8.             MALFUNCTIONS.

 

Each party shall notify the other party immediately upon discovery ofany evidence which might indicate that any of the MAS Processing Services arenot satisfactory.  Upon suchnotification, both parties shall consult and test in a manner that MAS deemsappropriate to solve the problem.  If wedetermine that the problem arises from hardware, software, personnel or otheritems within our control, we shall correct within a reasonable time not toexceed thirty (30) days from the date on which any such errors are brought toour attention.  If we determine that theproblem arises from the equipment, software, personnel procedures,communication or site facilities or other items within your control, you atyour own cost shall correct the problem within a reasonable time not to exceedthirty (30) days from the date on which any such errors are brought to yourattention.

 

9.             FORCE MAJEURE.

 

Neither MAS nor User shall be liable for any loss resulting from adelay or failure in its provision of MAS Processing Services or in theoperation of a Terminal due in whole or in part to any natural disaster,epidemic, fire, act of God, strike, war, riot, civil disturbance, court order,statute, governmental issuance, technological facility outage, shortage of orsignificant fluctuation in power or any other cause beyond its reasonablecontrol.

 

10.           LIMITATION OF LIABILITY

 

(a)  Disclaimer of CertainDamages.  The duties andresponsibilities of MAS under this

 

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Agreementwill be limited to those expressly set forth and undertaken herein.  In no event shall MAS be liable to User for(i) any loss of use, revenue, profit or business opportunities or indirect,incidental, consequential, punitive, special or exemplary damages, even if MASis informed or is otherwise aware or should be aware, of the possibility orlikelihood of such damages and regardless of whether any limited remedyprovided hereunder is determined to fail in its essential purpose, (ii) lossesor damages attributable to or arising from overhead allocations or general andadministrative costs and expenses of User, (iii) losses or damages caused otherthan by MAS’s own gross negligence or intentional misconduct, or (iv) losses ordamages arising out of the fraudulent or criminal acts of third parties.

 

(b)  Damages Cap.  Notwithstanding any provision contained inthis Agreement to the contrary, the aggregate liability of MAS during eachconsecutive twelve (12) month period beginning on the Effective Date for anyand all claims, demands, costs, losses, damages or other potential or actualexpenses which are in any way related, directly or indirectly, to theexecution, performance or subject matter of this Agreement shall not exceed theaverage monthly amount of fees paid by User to MAS during such period,exclusive of interchange and pass-through fees, multiplied by three (3),regardless of the form of action employed, whether in contract, warranty, tort(including negligence) or otherwise.

 

(c)  Risk Allocation.  The parties agree that the limitation ofliability set forth in this Section 10 is a reasonable allocation of risk andthat such limitation shall apply to any remedy ordered by a court, regardlessof whether such court determines that any remedy provided for hereunder failsin its essential purpose.

 

11.           NO WARRANTIES.

 

MAS HEREBY DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, ANYEXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULARPURPOSE.

 

12.           INDEPENDENT ENTITY.

 

We agree to provide MAS Processing Services to you as an independentcontractor only.  None of MAS’sofficers, employees, agents or representatives will be subject to your control.

 

13.           INSURANCE.

 

You agree to obtain all insurance coverage which is required by stateand federal law and regulation and dictated by prudent business practices inconnection with your use of MAS Processing Services.

 

14.           RIGHT OF INSPECTION OF RECORDS.

 

Upon reasonable notice to us and during normal business hours yourrepresentatives, auditors, and/or representatives of your regulatory agenciesmay inspect any file which we maintain regarding the provision of MASProcessing Services to you.

 

15.           ASSIGNMENT AND MERGER.

 

This Agreement may not be assigned by you without our prior writtenconsent.  If you are the subject of or aparticipant in a merger or acquisition by (i) statute, (ii) purchase of assets,(iii) sale or exchange of stock, (iv) consolidation or (v) any other means,such merger or acquisition shall not terminate this Agreement; rather, thisAgreement shall remain in full force and effect after such merger oracquisition as the obligation of the surviving financial institution.

 

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16.           EFFECTIVE DATE AND TERM.

 

This Agreement shall be effective as of the date indicated in theintroductory paragraph hereof provided that it is fully executed by us inoriginal form and the payments required hereunder have been delivered to us.The initial term of the Agreement shall be five (5) years from the date ourservices commence under this Agreement and, thereafter, for successive one (1)year renewal terms unless terminated in accordance with paragraph 17 herein.

 

17.           TERMINATION.

 

This Agreement may be terminated in its entirety by either party at theend of the initial term or any subsequent term upon one hundred eighty (180)days’ prior written notice to the other party. In the event you breach this Agreement causing an early termination orterminate this Agreement prior to the expiration of its term, you agree to payan early termination fee in an amount equal to the product of your averagemonthly fees times the number of months left in your current term.

 

18.           AMENDMENTS.

 

This Agreement may be amended only by a writing duly executed by bothparties.

 

19.           ENTIRE AGREEMENT.

 

This Agreement, including all schedules, addenda and exhibits hereto,constitutes the entire understanding between the parties as to MAS ProcessingServices and supersedes all previous communications, commitments and writings.

 

20.           SEVERABILITY.

 

If any provision of this Agreement is held invalid, illegal, void orunenforceable by reason of any judicial decision, all other provisions of thisAgreement shall nevertheless remain in full force and effect.

 

21.           WAIVERS.

 

No course of dealing or failure to enforce any provision or exerciseany right under this Agreement by either party shall be construed as a waiver ofsuch provision or right, affect the validity of this Agreement or curtail theability of any party to enforce such provision or exercise such right in thefuture.

 

22.           NOTICES.

 

All notices by one party to the other under this Agreement shall be inwriting and shall be considered delivered when actually received or three (3)days after placement in the U.S. Postal Service, whichever is sooner.  Notice shall be sent to each party at theaddresses set forth in the first paragraph of this Agreement.  Either party may change the address fornotices at any time by providing written notice of such change to the otherparty.

 

23.           HEADINGS.

 

The titles and headings which precede the text of this Agreement havebeen inserted solely for convenience of reference and contain no substantivemeaning.

 

24.           APPLICABLE LAW.

 

This Agreement shall be governed by, and construed in accordance with,the laws of the State of Delaware, regardless of the laws that might otherwisegovern under applicable principles of conflicts of laws thereof.

 

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In Witness Whereof, the parties hereto have executed this Agreement bytheir duly authorized representatives on the date first written above.

 

 

MONEY ACCESS SERVICE INC.

 

 

By:

 

 

Name and Title (Printed)

 

HERITAGE OAKS BANK

 

By:

 

 

Name and Title (Printed)

 

 

UserIdentification

 

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