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EXHIBIT 10.9
CONFIDENTIAL TREATMENT*
* CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO THE
RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION.
BRACKETS AND "+" HAVE BEEN USED TO IDENTIFY INFORMATION WHICH IS THE
SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST.
MARKETING AGREEMENT
THIS MARKETING AGREEMENT (the "Agreement") is made this 22nd day of
July 1997 by and between NFRONT, Inc. ("nFront"), a Georgia corporation having
its principal offices at 0000 Xxxxxxxx Xxxx Xxxx, Xxxxx 000X, Xxxxxx, Xxxxxxx
00000 and SPARAK ("Reseller"), a North Dakota corporation having its principal
offices at 0000 Xxxxxxx Xxxxx, Xxxxx, Xxxxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, nFront is in the business of providing home banking and xxxx
payment services through the Internet to customers of banks and other financial
institutions;
WHEREAS, Reseller is in the business of providing transaction
processing and other administrative and computer processing services to banks
and financial institutions;
WHEREAS, Reseller desires to offer to its Customer Base (as hereinafter
defined) and potential customers Internet home banking capabilities;
WHEREAS, nFront desires Reseller to offer nFront's proprietary Internet
home banking system as more fully described in Exhibit A attached hereto (the
"nHome System") to Reseller's Customer Base and to potential Bank customers of
Reseller.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
As used in this Agreement, each of the following terms has the meaning
set forth thereafter, such meaning to be equally applicable both to the singular
and plural forms of the terms herein defined:
(a) "Agreement" means this agreement, together with all exhibits and
schedules hereto now or hereafter signed by Reseller and nFront (all of which
are herein incorporated by reference), as the same may be modified, amended or
supplemented from time to time.
(b) "Bank" means banks and other financial institutions that offer
banking services to the general public.
(c) "Customer Base" means those customers listed on Exhibit B attached
hereto and any other Banks who become customers of Reseller during the Term.
(d) "Documentation" means that portion of the nHome System that
provides installation and operating instructions for use of the nHome System.
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(e) "End-User" means the ultimate user of the nHome System.
(f) "Generic Hardware" means computer equipment and configurations
thereof that meets the specifications provided by nFront for use with the nHome
System.
(g) "nHome System" shall have the meaning set forth in the fourth
recital hereof and shall also include all future improvements, enhancements and
modifications thereof, and all releases and upgrades related thereto.
(h) The terms "sale" and "resale" and any grammatical variant thereof
shall include, without limitation, sales, contracts for sale, conditional sales,
installment sales, rentals, leases or licenses of software to Banks, and any
other arrangement whereby the nHome System is placed at the disposal of the
Banks.
(j) "Software" means that portion of the nHome System that is comprised
of computer applications programs intended to be processed on the central
processing unit of Generic Hardware.
(k) "Term" shall have the meaning set forth in Section 8.1 hereof.
ARTICLE II
Reseller Appointment
2.1 Appointment. During the Term, nFront hereby grants to Reseller (a)
the exclusive right to market the nHome System to its Customer Base and (b) the
non-exclusive right to market the nHome System to potential Bank customers of
Reseller, and Reseller hereby accepts such appointment. There are no geographic
restrictions on where Reseller may market the nHome System. Reseller
understands, acknowledges and agrees that this appointment is non-exclusive as
to both the nHome System and geographic area and that nFront may appoint more
than one reseller in any given geographic area to sell and market the same nHome
System as any other reseller. nFront expressly reserves the right to sell and
deliver the nHome System to any other entity, including Banks. Notwithstanding
the immediately preceding sentence, for so long as Reseller is actively
marketing the nHome System to its Customer Base, nFront agrees that it will not
contact those Banks that are included in the Customer Base as of the date
hereof. nFront reserves the right to review the status of Reseller's marketing
efforts to the Customer Base on a quarterly basis, and if it determines, in the
exercise of its reasonable discretion, that Reseller is not making reasonable
efforts to market the nHome System to the Customer Base, the restrictions set
forth in the immediately preceding sentence shall no longer apply. Unless
otherwise set forth on Exhibit C attached hereto or hereafter as consented to in
writing by nFront, Reseller shall sell the nHome System only to Banks, and shall
not sell the nHome System to other parties providing core processing services to
Banks, or to Bank service bureaus, software providers, other resellers of
automated bank services or to any other buyer who intends, directly or
indirectly, to resell the nHome System. Reseller has no authority to appoint any
associate resellers or subdealers of the nHome System without nFront's consent.
2.2 Relationship between nFront and Reseller. Reseller shall conduct
its business in the purchase and resale of nHome System as a principal for its
own account and at its own expense and risk. This Agreement does not in any way
create the relationship of principal and agent, or any similar relationship
between nFront and Reseller, including, but not limited to that of joint
ventures, partners or associates. Reseller is granted no right or authority
hereunder to assume or create any obligation or responsibility for or on behalf
of nFront or otherwise to bind or to use nFront's name other than as may be
expressly authorized by nFront.
ARTICLE III
Sales, Service, and Training and Related Obligations
3.1 Selling and Promotion. Reseller shall use its best efforts to sell
and promote the sale of the nHome System within the territory, which best
efforts shall include, but not be limited to, promotion of the nHome System to
the Customer Base and prompt performance of all of its obligations under this
Agreement.
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3.2 Staffing and Training. Reseller shall appoint its technically
suitable employees to sell the nHome System, and provide Bank and End-User
support. Reseller shall, at its sole cost and expense, send the appropriate
sales, technical and training personnel to such training programs and other
refresher and upgrade training as nFront may, at reasonable intervals, require.
nFront shall provide periodic routine consultation and advice to Reseller in
connection with Reseller's sales and service hereunder and shall provide (a)
technical, specification and sales advice, (b) assistance and advice concerning
promotional and training programs, and (c) suggestions for new applications for
the nHome System at Reseller's cost. nFront shall furnish Reseller with a
reasonable supply of price lists, sales literature, catalogues, specifications
for Generic Hardware, Documentation and advisory assistance with respect to
installing the nHome System. All proprietary demonstration equipment, manuals,
instruction books, contract forms, sales and promotional materials,
Documentation and similar material furnished to Reseller by nFront, whether
furnished free of charge or not, shall remain the property of nFront and upon
request shall be returned to nFront by Reseller.
3.3 Installation and Training. Reseller acknowledges, understands and
agrees that the nHome System that it shall provide to Banks shall remain
resident on nFront's servers, and that such Banks shall, through Reseller, gain
access to the nHome System upon purchase. nFront shall be responsible for
systems maintenance of the nHome System resident on its servers. Reseller hereby
agrees that it shall provide installation, training, maintenance and Bank and
End-User support services to Banks and shall provide such services in respect of
the nHome System as used by any such Banks who purchase access to the nHome
System from Reseller. Reseller may charge any such Bank a reasonable fee for
providing such services. Installation and training services shall include, but
not be limited to, setting up and installing nHome System access on the Bank's
Generic Hardware, providing Documentation as appropriate to Bank personnel,
giving operating and maintenance instructions to the Bank's technical support
staff, training the Bank's professional staff in the use of the nHome System,
and making necessary adjustments at the time of delivery and installation and at
such subsequent times as may be necessary to ensure proper and efficient
operation of the nHome System on the Bank's Generic Hardware. Reseller shall
employ personnel who have received all necessary and appropriate training to
provide installation and Bank training services. Reseller shall use its best
efforts to handle satisfactorily all matters related to the installation and
initial training of Bank personnel in the use of the nHome System, and shall
report promptly to nFront each complaint received by Reseller relating to nHome
System which the Reseller cannot remedy. If the Reseller's installation and
training obligations hereunder are not discharged properly by Reseller, nFront,
in its sole discretion, may discharge such obligations directly or through
third-parties, and Reseller agrees to reimburse nFront upon demand for all
reasonable costs and expense incurred by nFront in connection therewith.
3.4 Reseller Promotional Activity. nFront shall not share in the
expense of any advertising or promotional activities by Reseller or other sales
promotion projects except by express agreement in writing. All materials
prepared by Reseller that promote the nHome System, including, but not limited
to, any materials that include any trademark or trade name (or any xxxx or name
closely resembling the same) now or hereafter owned or licensed by nFront or any
of its affiliates shall be approved in writing by nFront prior to use.
3.5 Reseller Recordkeeping. Reseller shall keep records of its
business relating to the nHome System as may be reasonably required by nFront.
nFront or its authorized representative may, from time to time during regular
business hours, examine such records and Resellers accounts relating to the sale
and servicing of the nHome System. Within a reasonable period after the close of
each of the parties' fiscal years, Reseller and nFront shall submit to each
other a copy of its representative financial statements for such fiscal year.
ARTICLE IV
Conditions of Sale
4.1 Pricing and Payment. The price for access to the nHome System to
the Banks and the processing fees for transactions thereunder shall be as set
forth in Exhibit D attached hereto. As compensation for its sales, marketing,
installation, training and support services provided hereunder, Reseller shall
be entitled to retain the percentage of such fees as set forth in Exhibit D
attached hereto. For any such sales as to which nFront does not require
prepayment, payment of nFront's portion of the initial access fee shall be due
net fifteen (15) days from the date of Reseller's invoice to the Bank, subject
to credit approval, payable to nFront at its principal place of business.
Payment
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of nFront's portion of any processing fees shall be paid within ten (10) days
following the end of each calendar month. A late payment charge equal to one and
one-half percent (1 1/2%) of the unpaid amount for each succeeding thirty (30)
day period or portion thereof in which fees remain unpaid.
4.2 Force Majeure. nFront shall not be liable for loss or damage due
to interruption of service or access to the nHome System resulting from any
cause beyond its reasonable control, including, but not limited to, Internet
systems or network failure, capacity limitations, compliance with regulations,
orders or instructions of any federal, state or municipal government or any
department or agent thereof, acts of God, acts or omissions of Reseller, acts of
civil or military authority, fires, strikes, facilities shutdowns or
alterations, embargoes, war, riot, delays in transportation, or inability to
obtain necessary labor, facilities or materials from usual sources. IN NO EVENT
SHALL NFRONT BE LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES DUE TO ANY SUCH
CAUSE.
4.3 Price and System Changes. nFront shall have the right to change
the nHome System without notice to Reseller, and shall have the right at any
time to discontinue the sale of any version of the nHome System, to make changes
in method of access or delivery, including interface procedures, and to add
improvements, all without incurring any liability whatever, including any
obligation to install or modify the same on the nHome System previously accessed
by the Customer Base. nFront may change its prices to Reseller for the nHome
System upon thirty (30) days' written notice to Reseller. Any contract between
Reseller and a Bank which includes the nHome System executed prior to the date
of any such notice with a scheduled delivery date after the effective date of
such price increase shall be sold to Reseller at the revised price for the nHome
System. Any nHome System scheduled for delivery to a Bank prior to the effective
date of any such price increase but delayed due to the fault of nFront or for
reasons beyond nFront's control shall be sold to Reseller at the price as in
effect on the date Reseller ordered the nHome System. The price protection
provisions contained in this Section 4.3 shall apply only to the initial access
fees listed on Exhibit D attached hereto, and shall not apply to any increase in
processing fees, which increase shall be effective as of the thirtieth day
following written notice of such increase to Reseller.
4.4 Taxes and Other Fees. Reseller shall pay all license fees, sales,
use, service use, occupation, personal property and excise taxes and any other
fees, assessments or taxes which may be assessed or levied by any federal, state
or local government and any departments and subdivisions thereof, against any of
the nHome System ordered by Reseller or under Reseller's direct or indirect
control.
ARTICLE V
Warranties
5.1 nFront's Warranty. THE NHOME SYSTEM IS PROVIDED "AS-IS",
"WHERE-IS". NFRONT SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE AS TO THE NHOME SYSTEM PROVIDED UNDER THIS AGREEMENT.
ARTICLE VI
Special Agreements Regarding Software and Other Intellectual Property
6.1 Limited License. In the performance of Reseller's obligations
hereunder, it shall be necessary for Reseller to demonstrate the nHome System.
Accordingly, subject to the terms and conditions contained herein, nFront hereby
grants to Reseller, and Reseller hereby accepts from nFront, a non-exclusive
license (the "License") of the Software solely for the purpose of demonstrating
the nHome System in operation to potential Bank customers of Reseller.
6.2 Software Covenants. Reseller agrees to comply with each of the
following requirements:
(a) Reseller shall not copy, alter, modify, translate, decompile,
disassemble, reverse engineer or otherwise attempt to derive source code, or
create derivative works of the Software, or any part thereof, or knowingly
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allow others to do so, during or after the Term.
(b) Except as otherwise specifically provided in this Agreement,
Reseller shall not loan, rent, lease, give, sub-license, or otherwise transfer,
nor communicate or otherwise disclose, the Software, including any part or any
copy thereof, in whole or in part, to any person. Reseller agrees that except
for copies of the Software provided to Reseller pursuant to Section 6.1 hereof,
all such software provided to Reseller hereunder shall remain in its sealed
package, as provided by nFront to Reseller, until delivered to a Bank customer
of Reseller.
(c) Except with respect to providing access to the nHome System to
Bank customers as authorized and specifically provided in this Agreement,
Reseller shall not electronically transfer the Software, or any part thereof,
from one computer to another over a network, irrespective of how linked.
(d) The Software, including all parts thereof, and any copies,
in whole or in part, and any and all copyrights thereto, are and remain the
property of nFront, irrespective of the ownership of the media on which such
Software and any parts or copies thereof are contained.
(e) Each copy of the Software sold to Banks shall include a
license agreement, the form of which shall be as set forth in the Exhibit E,
which license shall be incorporated into any Reseller license given to Banks,
provided, however, that nFront shall approve in advance the form of any such
license. In addition to the license to be provided to Banks upon delivery of
access to the nHome System, Reseller shall include in each invoice for use with
such software a statement specifically referring to such license agreement and
stating that acceptance and/or any use constitutes an assent to all of the terms
and conditions of such license agreement, as limited by terms and conditions
included therein. To enable nFront to verify compliance herewith, Reseller shall
provide nFront with any form agreements and invoices which Reseller plans to use
in connection herewith at least thirty (30) days prior to such use.
(f) Reseller acknowledges that the laws and regulations of the
United States restrict the export and re-export of commodities and technical
data of United States origin, including the nHome System. Reseller agrees that
it shall not export or re-export such Software in any form without nFront's
consent, which consent shall, among other things be conditioned upon Reseller
receiving the appropriate United States and foreign government licenses and
approvals.
(g) Reseller shall not, by any act or omission, impair or
prejudice the copyright or any other right of whatever nature of nFront in and
to the nHome System or any part thereof, and shall not deal with the same in any
manner which may allow any third party to obtain any rights in the same which
are inconsistent or which conflict with the rights of nFront.
6.3 Notices; Markings; Trademarks; Tradenames. Reseller agrees to
comply with the following:
(a) Reseller shall not delete any trademarks, tradename or
copyright notice present in, on or displayed by the nHome System, or any part
thereof.
(b) Reseller shall not add to any notice present in, on or
displayed by the nHome System its own copyright, trademark or other proprietary
notices unless such notices have been previously approved in writing by nFront.
(c) Except as already present in, on or displayed by the nHome
System software and/or accompanying packaging or Documentation provided by
nFront, Reseller shall not use any trademarks and/or tradenames of nFront
without prior written approval of nFront.
6.4 Documentation. Each nHome System sold by Reseller to a Bank shall
include one (1) set of accompanying Documentation. Reseller shall only
distribute complete and separate copies of the Documentation to Banks and shall
not reproduce, in whole or in part, or transfer in any manner to a third party
other than a Bank, such Documentation. Any and all copyrights to such
Documentation are and shall remain the property of nFront.
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ARTICLE VII
Confidentiality and Non-Disclosure
7.1 Reseller Obligations.
(a) Reseller recognizes, acknowledges and agrees that during the Term,
nFront may furnish to Reseller certain technical and commercial information,
including but not limited to, designs, procedures, formulas, discoveries,
inventions, improvements, innovations, concepts and ideas, lists of customers,
computer programs, business methods, and plans for future developments
("nFront's Confidential Information") which is the confidential, proprietary
property of nFront. Reseller recognizes, acknowledges and agrees that nFront's
Confidential Information was not previously known to the Reseller and is to be
maintained in secrecy and confidence by Reseller and Reseller's employees,
agents or representatives to whom Reseller discloses any of nFront's
Confidential Information. Reseller agrees for itself and for each of its
employees, agents or representatives to whom Reseller discloses any of nFront's
Confidential Information that such information shall be used only in accordance
with the terms, covenants, conditions and limitations of this Agreement, and not
for the benefit of or for, directly or indirectly, Reseller or any of its
employees, agents or representatives. Information made available to the general
public by nFront and information obtained from third parties not associated with
nFront shall not be considered to be nFront's Confidential Information, except
for information received from third parties that Reseller knows or should have
known was obtained illegally or in violation of this Agreement. In the event
Reseller or a representative of Reseller is requested by law, order of court or
any agency to disclose any of nFront's Confidential Information, Reseller shall
give nFront prompt notice of such request so that nFront may seek an appropriate
protective order. If, in the absence of a protective order, Reseller or a
representative of Reseller is nonetheless compelled by law to disclose any of
nFront's Confidential Information, Reseller or a representative of Reseller, as
the case may be, may disclose such information in such proceeding without
liability hereunder; provided, however, that Reseller gives nFront written
notice of the information to be disclosed within twenty-four (24) hours after
receipt of such order by Reseller and, upon nFront's request and at its expense,
Reseller shall use its best efforts to obtain assurances that confidential
treatment shall be accorded to such information.
(b) In the event this Agreement is terminated for any reason, the
Reseller agrees to return promptly nFront's Confidential Information, including
all copies thereof, to nFront, or to deliver all such information promptly to
such party as may be designated by nFront. Reseller further agrees thereafter
not to use or disclose nFront's Confidential Information in any manner
whatsoever without the prior written approval of nFront unless and until such
information shall lawfully become generally known in the public domain through
no fault of the Reseller or breach by the Reseller of the covenants contained
herein.
(c) Reseller shall disclose nFront's Confidential Information to Banks
only to the extent necessary to enable such customers to use the nHome System,
and only after any such Bank executes an agreement in form and substance
acceptable to nFront, acknowledging the confidential nature of such information
and setting forth the appropriate treatment of such information.
7.2 nFront's Obligations.
(a) nFront recognizes and agrees that, except as otherwise provided
herein, certain business information provided by the Reseller to nFront, not
related to nFront's ongoing business ("Reseller's Confidential Information"), is
the proprietary property of Reseller, is not previously known to nFront and is
to be maintained in secrecy and confidence, except as provided herein, and used
only in accordance with the terms, covenants, conditions and limitations of this
Agreement. Information made available to the general public and information
obtained from third parties not associated with Reseller shall not be considered
to be Reseller's Confidential Information, except for information received from
third parties that nFront knows or has reason to know was obtained illegally or
in violation of this Agreement. In the event nFront or a representative of
nFront is requested by law, order of court or any agency to disclose any of
Reseller's Confidential Information, nFront shall give Reseller prompt notice of
such request so that Reseller may seek an appropriate protective order. If, in
the absence of a protective order, nFront or a representative of nFront is
nonetheless compelled by law to disclose any of Reseller's Confidential
Information, nFront or a representative of nFront, as the case may be, may
disclose such information in such proceeding without liability
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hereunder; provided, however, that nFront gives Reseller written notice of the
information to be disclosed within twenty-four (24) hours after receipt of such
order by nFront and, upon Reseller's request and at its expense, nFront shall
use its best efforts to obtain assurances that confidential treatment shall be
accorded to such information.
(b) In the event this Agreement is terminated for any reason, nFront
agrees to return promptly Reseller's Confidential Information, including all
copies thereof, to Reseller or to deliver all such information promptly to such
party as may be designated by Reseller. nFront further agrees thereafter not to
use or disclose Reseller's Confidential Information in any manner whatsoever
without the prior written approval of Reseller unless and until such information
shall lawfully become generally known in the public domain through no fault of
nFront or breach by nFront of the covenants contained herein.
ARTICLE VIII
Term and Termination
8.1 Term. This Agreement shall commence as of the date hereof and shall
remain in effect (unless sooner terminated pursuant to Section 8.2 hereof) for
five (5) years (the "Term"). It shall be renewed automatically without
interruption for successive five-year terms, unless, not less than sixty (60)
days before the end of any Term, either nFront or Reseller notifies the other
party in writing of its election (at its sole option, for any reason or for no
reason) not to renew. Any such renewal periods shall be considered an extension
of and part of the Term.
8.2 Right to Terminate. Notwithstanding any other provision hereof,
this Agreement may be terminated either (i) by mutual agreement of the parties
hereto; (ii) by either party at any time if the other party has materially
breached any of the provisions hereof and, if the breach is curable, has failed
to cure such alleged breach within thirty (30) days after written notice thereof
in the case of failure to pay when due amounts owing to such party, and within
sixty (60) days in case of all other alleged curable breaches; (iii) by either
party immediately and without the giving of notice, in the event that either
party shall become insolvent, or shall ask its creditors for a moratorium, or
shall file a voluntary petition in bankruptcy, or shall be adjudicated as a
bankrupt pursuant to an involuntary petition, or shall suffer appointment of a
temporary or permanent receiver, trustee, or custodian for all or a substantial
part of its assets which shall not be discharged within thirty (30) days; and
(iv) by Reseller if, in the exercise of its reasonable discretion, it determines
that the nHome System is not being maintained by nFront in accordance with
industry standards for Internet home banking systems and, after due notice to
nFront of such deficiencies, nFront has not cured, or commenced to cure, such
deficiencies within a reasonable period after the giving of such notice. In the
event either party materially breaches any of the provisions hereof, and such
breach is not curable, this Agreement shall be immediately terminable by the
non-breaching party. Without limiting the foregoing, any violation of Articles
VI and VII hereof shall constitute a noncurable breach and if either party
commits such a breach, this Agreement shall be terminable immediately by the
non-breaching party.
8.3 Effect of Termination.
(a) Any termination of this Agreement shall not release Reseller from
paying any amount which may then be owing to nFront. In the event of any
termination of this Agreement, all obligations owed by Reseller to nFront shall
become immediately due and payable on the effective date of termination whether
otherwise then due or not (without presentation, demand, protest or notice of
any kind, all of which are hereby waived by Reseller); and nFront may offset and
deduct from any or all amounts owed to Reseller, if any, any or all amounts owed
by Reseller to nFront, rendering to Reseller the excess, if any.
(b) In the event of termination of this Agreement by either party or
automatically as provided herein, nFront shall be automatically relieved from
any obligation to provide further access to Reseller's Customer Base. nFront
shall have no obligation to provide or liability to Reseller or its Customer
Base as of the date of termination in connection with any such termination to
provide further access to Reseller's Customer Base. If nFront continues to
provide access to all or any part of Reseller's Customer Base after termination
of this Agreement, such continuation shall not be construed as a renewal of this
Agreement for any further term nor as a waiver of such termination.
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(c) Upon termination of this Agreement, Reseller shall return to
nFront, promptly and without charge to nFront, all Documentation, price lists,
maintenance and policy manuals, sales aids and other publications of nFront
relating to the nHome System which Reseller has on hand. Reseller shall
thereupon immediately cease using any trademarks, tradenames, service marks or
other identifying marks on any of its materials.
(e) Reseller shall be solely responsible for all commitments incurred
or assumed by it during the Term or thereafter, and nFront shall not be held
responsible in any manner therefor, irrespective of any suggestion or
recommendation with respect thereto by nFront or any of its employees or
representatives unless nFront has expressly agreed in writing to assume the
responsibility.
ARTICLE IX
Indemnification; Other Relief
9.1 Indemnification by Reseller. Reseller shall indemnify, defend and
hold harmless nFront, its officers, directors, shareholders, employees, agents
and affiliates from and against any claims, losses, damages, liabilities or
expenses (including, without limitation, reasonable attorneys' fees and
expenses) (collectively, "Claims") resulting from or arising out of Reseller's
use or misuse of the nHome System or any part thereof by Reseller or any Bank
included in the Customer Base, any misrepresentations made by Reseller with
respect to the nHome System or a breach of any of the provisions of this
Agreement, provided, however, that in respect of any Claims hereunder against
Reseller that arise out of or result from any alleged use or misuse of the nHome
System or any part thereof by Reseller or any Bank included in the Customer Base
or any alleged misrepresentation made by Reseller with respect to the nHome
System, Reseller shall be notified promptly of such Claim in writing and shall
be given authority, control and full and proper information and assistance in
the defense and settlement of such Claim. Notwithstanding the foregoing,
Reseller shall not have the authority to settle or compromise any Claim in a
manner that indicates that nFront contributed to or was responsible for the
cause of any such Claim unless nFront consents in writing to such settlement.
9.2 Indemnification by nFront. Subject to the limitations set forth in
Section 9.5 hereof, nFront shall indemnify, defend and hold harmless Reseller,
its officers, directors, shareholders, employees, agents and affiliates from and
against any claim, suit or proceeding based upon an allegation that the nHome
System (or any portion thereof) infringe upon or misappropriate any copyright,
patent, trademark or trade secret of any third party, provided that nFront is
notified promptly of such claim, suit or proceeding in writing and is given
authority, control and full and proper information and assistance in the defense
and settlement of such claim, suit or proceeding. If the nHome System is finally
determined by a court of competent jurisdiction to constitute an infringement of
any patent, copyright, trademark or other trade secret of a third party and its
use is enjoined, nFront shall either:
(a) procure the right for Reseller to continue to use the nHome
System under this Agreement; or
(b) replace or modify the nHome System with a version of the nHome
System that is not so infringing and that satisfies this provision of this
Agreement.
9.3 Arbitration. The parties to this Agreement agree that any
controversies or claims arising out of or relating to this Agreement (including,
without limitation, any alleged breach thereof or the termination or non-renewal
thereof) shall be settled by arbitration pursuant to the Federal Arbitration
Act, 9 U.S.C. ss. 1 et seq., in accordance with the Commercial Arbitration Rules
of the American Arbitration Association. The parties hereto further agree that
the arbitrators in any such arbitration shall not be authorized to award any
punitive damages in connection with any controversy or a claim settled by
arbitration hereunder. The decision of the arbitrator in any such arbitration
shall be final and binding upon the parties and judgment upon the award may be
entered in any court having jurisdiction thereof. Any arbitration shall take
place in Atlanta, Georgia, and the expenses of the arbitrators shall be
allocated by such arbitrators. The arbitration shall be conducted before a panel
of three (3) arbitrators, one selected by Reseller, one selected by nFront, and
one selected by mutual agreement of the arbitrators selected by Reseller and
nFront.
9.4 Injunctive Relief. Notwithstanding the provisions of Section 9.3
hereof, the parties acknowledge and agree that any breach of the provisions of
Articles VI or VII of this Agreement shall result in irreparable harm to nFront
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for which no adequate remedy at law exists. Accordingly, upon any such breach,
nFront shall be entitled to injunctive or other appropriate extraordinary
relief, such relief being in addition to, and not in lieu of, any other rights
and remedies, including the award of damages, available at law or in equity.
Reseller acknowledges and agrees that no serious harm to it shall result from
the entry of any such equitable relief against it, and therefore any bond
required of nFront in connection with such relief shall be set in an amount not
in excess of One Thousand Dollars ($1,000.00). Any violation of the restraints
set forth herein shall automatically extend the period of such restraints for
the amount of time such violation continues, provided nFront seeks enforcement
promptly after discovery of such violation. nFront shall not be required to
prove money damages to enforce any provision of this Agreement.
9.5 LIMITATION OF LIABILITY. IN NO EVENT SHALL NFRONT BE LIABLE FOR ANY
LOSS OF PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF
ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE NHOME SYSTEM OR
NON-DELIVERY OF NHOME SYSTEM EVEN IF NFRONT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. SUBJECT TO THE MAXIMUM LIABILITY SET FORTH IN THIS PARAGRAPH,
IN NO EVENT SHALL NFRONT'S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT
EXCEED THE AMOUNT PAID TO NFRONT BY RESELLER UNDER THIS AGREEMENT WITHIN THE
THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF SUCH CLAIM. IN NO
EVENT SHALL NFRONT'S MAXIMUM, CUMULATIVE LIABILITY FOR ALL CLAIMS UNDER THIS
AGREEMENT EXCEED $25,000 OR ALL AMOUNTS PAID BY RESELLER TO NFRONT HEREUNDER,
WHICHEVER IS LESS. NO CLAIM MAY BE BROUGHT BY RESELLER UNDER THIS AGREEMENT MORE
THAN TWO (2) YEARS AFTER ACCRUAL OF SUCH CLAIM.
ARTICLE X
Miscellaneous Provisions
10.1 Waiver. Any failure of a party to comply with any obligation,
covenant, agreement or condition herein may be expressly waived in writing by
the other party, but such waiver or failure to insist upon strict compliance
with such obligation, covenant, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure.
10.2 Entire Agreement. This Agreement, the exhibits and schedules hereto
constitutes the entire understanding of the parties with respect to the subject
matter of this Agreement and are intended to supersede all prior understandings,
whether written or oral, between the parties with respect thereto.
10.3 No Third Party Beneficiary Rights. No provision of this Agreement
is intended or shall be construed to provide or create any third party
beneficiary right or any other right of any kind in any Bank or any client,
customer, affiliate, insurer, lender, shareholder, partner, officer, director,
employee or agent of any party hereto, or in any other person.
10.4 Amendment; Binding Effect; Assignment. No amendment, modification
or alteration of the terms of this Agreement shall be binding unless in writing
and executed by the parties hereto. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, heirs, executors and administrators. Reseller
may not assign this Agreement, in whole or in part, or any of its rights or
obligations hereunder without the prior written consent of nFront, which shall
not be unreasonably withheld, and any such attempted assignment shall be void.
10.5 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Georgia, without giving
effect to the conflict-of-laws principles thereof.
10.6 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the Term, such provision shall be fully severable. This Agreement shall be
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construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part of this Agreement, and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement.
10.7 Counterparts. This Agreement may be executed simultaneously or in
two or more counterparts, each of which together shall constitute one and the
same instrument and shall be deemed an original hereof.
10.8 Notices. All notices required or permitted under this Agreement
shall be made in writing and shall be deemed to have been duly given if
delivered personally or sent by registered or certified mail (return receipt
requested), U.S. mail or facsimile. All notices shall be addressed to the
parties at the respective addresses indicated above.
10.9 Survival. The provisions of Articles V, VI, VII, VIII, IX, X and XI
shall survive any termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
NFRONT, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------
Its: President
Date: 7/22/97
RESELLER
By: /s/ Xxxxx Xxxxxxxx
------------------------
Its: Sec/Treas
Date: 7/22/97
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ADDENDUM TO MARKETING AGREEMENT
11.1 Back-up System. (a) Within a reasonable period after execution of
this Agreement, nFront shall deliver to Reseller, the nHome System on
appropriate media, which Reseller shall store in a secure location (the "Back-up
System"). During the Term and until the Password Release Date, nFront shall
update the Back-up System no less frequently than twice annually. Concurrently
with the execution of this Agreement, nFront and Reseller shall enter into a
Password Escrow Agreement in respect of the Back-up System in the form attached
hereto as Exhibit F. If, pursuant to such agreement the Password (as defined in
such agreement) is released to Reseller (the "Password Release Date"), Reseller
may use the Password solely to continue to provide services to its Customer Base
as in effect as of the Password Release Date for a period ending on the earlier
of (i) the date that Reseller secures the services of an alternate provider of
Internet home banking services or (ii) three (3) years from the date of such
release (the "Password Termination Date"). On the Password Termination Date,
Reseller shall deliver to nFront (or its successor-in-interest to the Password
and Back-up System) the nHome System and all copies thereof then in Reseller's
custody or control. Reseller's obligations under Articles VI and VII of the
Agreement shall apply to the Back-up System.
(b) Prior to the Password Release Date, Reseller shall not access, or
attempt to access, the Back-up System. If, prior to the Password Release Date,
Reseller breaches the provisions of this Section 11.1(b), in addition to any
other remedies than nFront may have in law or in equity, nFront may, without
notice to Reseller, terminate this Agreement forthwith.
(c) Reseller shall pay all costs and expenses associated with the
generation, maintenance and storage of the Back-up System.
(d) Upon the Password Release Date, nFront shall be available to assist
the Reseller to implement the System in accordance with a project plan and cost
structure to be mutually agreed upon by the parties.
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EXHIBIT A
Referred to the first column of Exhibit D
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
Price Royalty(1)
Asset Based(2) 50%
----------- --------
1) NHOME SYSTEM
a) Products and Services
i) Five Secure Product Applications (Select from the following)
(1) Checking
(2) Savings
(3) CD
(4) Mortgage
(5) Consumer Loan
(6) Overdraft Protection
(7) Equity Line
ii) Additional Secure Applications
(1) Quiz
(2) Survey
(3) Guest Book
(4) Xxxx Payment
iii) Secure Database Retrieval
b) Hot Product Link
c) Online Banking
i) View Account Balances and Histories
ii) Checking
iii) Savings
iv) CDs/XXX
v) Loans
vi) Transfer Between Checking and Savings Account
d) Online Banking Demo
e) Frequently Asked Questions
f) Marketing Section
g) What's New
h) Bank Information
i) Interactive Calculators
i) Loans (Payment and total Interest)
ii) Maximum Loan (Payment and total Interest)
iii) College Planning (Excess or deficiency, plus savings tips)
iv) Mortgage (Calculates principal and interest mortgages)
v) Retirement (Future value calculations)
j) Contact Us
k) Search Engine
l) Email
m) Xxxx Payment Interface
n) Administrative Site
o) Featured Banks Spotlight
2) SYSTEM SUPPORT (MONTHLY) $[+++] 0%
3) CUSTOMER FEES
a) Xxxx Payment Customer Set-up (per customer) $[+++] 0%
b) On-line Banking Customer Set-up (per customer) $[+++] 50%
c) Application (per application) $[+++] 50%
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4) CUSTOMER SERVICE FEES ($0.00 MONTHLY MINIMUM)
a) Online Banking Customer Maintenance $[+++] 50%
b) Xxxx Payment Maintenance (up to 20, thereafter .32 cents) $[+++] 0%
5) NHOME OPTIONS
a) nForm (10 Frames) $[++++] 25%
b) Site Map Construction $[++++] 25%
c) Management Reporting $[++++] 25%
d) Bank Specific Branding (Annually) $[++++] 25%
e) Web TV Site Quote 25%
f) Telephone Xxxx Statement Quote 0%
1) The royalty percentage is based upon the actual sales dollars
contracted by Reseller to Customer. Example: If Reseller charges
$[++++] for initial setup then nFront would receive $[++++] and
Reseller would receive $[++++]. The prices listed in Exhibit 4 are
nFront's minimum price level. All contracted sales dollars, on any 0%
royalty items, above nFront's minimum price will be due to Reseller in
its entirety.
2) Asset Pricing
ASSET SIZE (IN MILLIONS) NHOME LICENSE SPARAK INTERFACE TOTAL PRICE
----------------------- ------------- ---------------- -----------
0-20 $[++++] $[++++] $[++++]
21-50 $[++++] $[++++] $[++++]
51-100 $[++++] $[++++] $[++++]
101+ $[++++] $[++++] $[++++]
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ADDENDUM TO PRICE AGREEMENT
1. In addition to the items described in Exhibit D, Microsoft Money and
Quicken will be added at no extra charge for a period not to exceed
January 1, 1998. Thereafter, one of the following fee schedules will be
implemented:
a) Purchase each module separately for a one-time fee and pay an annual maintenance.
Microsoft Money (one time fee) $[++++]
Quicken (one time fee) $[++++]
Annual Maintenance $[++++]*
b) Purchase each module separately as a monthly fee.
Microsoft Money $[++++]/mo.*
Quicken $[++++]/mo.*
*These fees will apply for the duration of the contract period.
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EXHIBIT E
LICENSE AND MAINTENANCE AGREEMENT
BETWEEN
NFRONT, INC.
("VENDOR")
A GEORGIA CORPORATION
HAVING ITS PRINCIPAL PLACE OF BUSINESS AT:
0000 XXXXXXXX XXXX XXXX, XXXXX 000X
XXXXXX, XXXXXXX 00000
AND
SPARAK
("VENDOR")
A NORTH DAKOTA CORPORATION
HAVING ITS PRINCIPAL PLACE OF BUSINESS AT:
0000 XXXXXXX XXXXX
XXXXX, XXXXX XXXXXX 00000
AND
BANK NAME
("CUSTOMER")
HAVING ITS PRINCIPAL PLACE OF BUSINESS AT:
BANK ADDRESS
BANK CITY, STATE, ZIP
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1. AGREEMENT
This agreement ("Agreement") provides for the grant of a non-exclusive
license of Software ("Software") and the provision of Software
maintenance services by Vendor to Customer.
2. INITIAL TERM
The initial term (the "Initial Term") of this Agreement shall begin
upon signing (the "Effective Date"), and shall remain in effect,
subject to the renewal provisions contained within Section 3 hereof,
and subject to earlier termination as provided for in Section 13 or
Section 15 hereof, for a period of five (5) years following the
Effective Date.
3. AUTOMATIC RENEWAL AND SUBSEQUENT TERM
Upon expiration of the Initial Term, this Agreement shall be
automatically extended for an indeterminate number of successive five
(5) year periods (each a "Subsequent Term"), unless Customer notifies
Vendor of its election not to renew at least ninety (90) days prior to
the end of the Initial Term of any Subsequent Term.
4. SOFTWARE RIGHTS
This Agreement grants Customer non-exclusive license rights to Vendor
Software. For all purposes of this Agreement, the term "Software" shall
mean all those software products described in the Software Applications
attached hereto as Exhibit 1 ("Software Applications"). Customer may,
by addendum to this Agreement agreed to in writing by Vendor, or by
separate written agreement with Vendor, license other software products
provided by Vendor. Unless Customer otherwise notifies Vendor, all
subsequently licensed and installed Software shall be automatically
added to this Agreement.
5. FEES, INSTALLATION CHARGES AND TAXES
(a) Fees
Customer has been granted hereunder a non-exclusive license
for the Software for the duration of this Agreement. The
initial and annual Software fees for this license are set
forth in the Customer Software Fees attached hereto as Exhibit
2 ("Software Fees and Deliverables").
(b) Installation and Special Charges
Customer shall pay for Software installation, modification,
and non-covered maintenance of Software at Vendor's then
prevailing professional service fees. A list of Vendor's
current prevailing professional service fees is attached
hereto as Exhibit 3 ("Professional Service Fees"). Expenses
for travel and all related expenses for Software installation,
modification, and covered and non-covered maintenance shall be
reimbursed by Customer to Vendor upon invoice.
(c) Taxes
Customer is additionally responsible for all applicable
federal, state, or local taxes (exclusive of income taxes
properly payable by Vendor) and other governmental fees or
assessments incurred as a result of this License, use of the
Software by Customer, and services provided by Vendor
hereunder.
6. PAYMENT
(a) Payment of Fees and charges hereunder will be due as follows:
(1) One hundred percent (100%) of the Initial Software
Fees is due at the time Customer signs this
Agreement.
(2) All other fees are billed monthly. All monthly
minimum fees begin on the software acceptance date.
(3) Non-covered maintenance and travel and related
charges are due upon invoice by Vendor.
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(b) In the event payment is not made as specified herein, or
within thirty (30) days following invoice by Vendor, as
applicable, Customer shall pay interest at the rate of one and
one half percent (1.5%) per month (or the highest applicable
legal rate, whichever is lower) on the outstanding overdue
balance for each month or part thereof that such sum is
overdue. Customer agrees to pay all costs of collection of
overdue amounts, including reasonable attorneys' fees and
court costs.
7. SOFTWARE LICENSE
(a) Vendor and/or its suppliers have designed, developed, and made
available proprietary computer Software containing trade
secrets of Vendor and/or its suppliers. Use of this Software
is strictly governed by this Agreement. No title or ownership
in the Software is transferred to Customer. Customer shall not
copy or in any way duplicate the Software, except for
reasonable backup procedures approved by Vendor. The Software
may not be assigned, sublicensed, or otherwise transferred or
used by Customer for the benefit of a third party.
(b) Customer shall hold the Software, together with all materials
and knowledge related thereto obtained by Customer, in
confidence, and shall use reasonable controls to protect the
confidential nature of the Software and such related materials
and knowledge.
(c) Customer agrees to execute any documents reasonably requested
by Vendor with respect to the Software of any third party
licensed or sublicensed by Vendor to Customer hereunder.
8. BASIC MAINTENANCE PERIOD
The Basic Maintenance Period commences on Monday and continues through
Friday of each week (8:00 a.m. to 5:00 p.m. Customer Local Time),
except on any day on which banking institutions in Athens, Georgia, are
authorized by law or executive order to close ("Holidays").
9. EXTENDED MAINTENANCE PERIOD (ONLY APPLICABLE TO IN-HOUSE CUSTOMERS)
The Extended Maintenance Period (all Customer local times):
Initial all that apply:
Surcharge
---------
______ Monday through Friday* 8:00 a.m. to 8:00 p.m. 4%
______ Monday through Friday* 8:00 a.m. to 12:00 midnight 8%
______ Monday through Friday* 24 hours starting 8:00 a.m. 16%
______ Saturday* 8:00 a.m. to 5:00 p.m. 9%
______ Saturday* 8:00 a.m. to 8:00 p.m. 10%
______ Saturday* 8:00 a.m. to 12:00 midnight 12%
______ Saturday* 24 hours starting 8:00 a.m. 14%
______ Sunday or Holiday 8:00 a.m. to 5:00 p.m. 16%
______ Sunday or Holiday 8:00 a.m. to 8:00 p.m. 19%
______ Sunday or Holiday 8:00 a.m. to 12:00 p.m. 22%
______ Sunday or Holiday 24 hours starting 8:00 a.m. 27%
*Except Holidays
10. COVERED MAINTENANCE
(a) General
Vendor will provide the maintenance required to assure that
the Software operates according to Vendor's standard
specifications. Such maintenance will be performed during the
Basic Maintenance Period, and, if Section 9 of this Agreement
applies, during the time periods specified therein.
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(b) Software Maintenance
Software Maintenance includes:
(i) New software releases of existing licensed
products/modules
(ii) Application updates
(iii) Mandatory federal regulatory compliance
(iv) Malfunction remedies ("Bug Fixes")
(v) Documentation maintenance
(vi) Remote diagnostics
(vii) Service desk and dispatch
(viii) Non-chargeable user error remedies
It is the policy of Vendor to provide improvements to the
Software and to assist the Customer in its duty to comply with
mandatory federal governmental regulations applicable to the
data utilized in the Software. Vendor reserves the right to
discontinue support of previous versions of Software one
hundred eighty (180) days after the availability of a new
release. Failure of the Customer to install Software releases
or any other correction or improvement provided by Vendor
shall relieve Vendor of responsibility for the improper
operation or any malfunction of the Software as modified by
any subsequent correction or improvement, but in no such event
shall any fees paid (or to be paid) by Customer be returned to
Customer, and Vendor shall be released thereafter from its
obligation to support the Software as provided herein.
(c) Non-Covered Maintenance
Covered maintenance does not include the following: (i)
maintenance outside the agreed Basic Maintenance Period unless
and to the extent indicated in Section 9 of this agreement;
(ii) maintenance required by: (a) operator error or improper
operation of the Software, (b) modifications or additions to
Software performed by other than Vendor personnel or by their
designees, (c) modifications or additions by Customer to
equipment such that the Software requires modifications in
order to operate according to Vendor documentation, (d) damage
to Software by Customer's employees or third parties, (e)
causes beyond the reasonable control of Vendor including, but
not limited to, acts of God or public enemies, labor disputes,
supplier or materials shortages, embargoes, rationing, acts of
government authorities, utility or communication failures,
epidemics, riots, strikes, or war, or (f) electrical
disturbances, outages or brownouts; (iii) Vendor's requested
involvement in determining or solving a problem on Software
not covered by this Agreement; (iv) Software modification or
customization requested by Customer.
11. SOFTWARE ACCEPTANCE DATE
The Software Acceptance Date shall be the date the Software is first
used for daily operations by Customer.
12. DISCLAIMER
EXCEPT TO THE EXTENT OTHERWISE SPECIFICALLY STATED IN THIS AGREEMENT,
VENDOR DISCLAIMS ALL WARRANTIES ON THE SOFTWARE AND SERVICES FURNISHED
HEREUNDER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL
VENDOR'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID TO
VENDOR UNDER THIS AGREEMENT DURING ANY PERIOD OF TWELVE (12)
CONSECUTIVE MONTHS. VENDOR SHALL NOT BE LIABLE IN ANY EVENT FOR DAMAGES
RESULTING FROM LOSS OF DATA, LOSS OF PROFITS, USE OF PRODUCT, OR FOR
ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF VENDOR'S LIABILITY
SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR
TORT, INCLUDING NEGLIGENCE. ANY ACTION AGAINST VENDOR MUST BE BROUGHT
WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
13. TERMINATION
Vendor may, at its option, terminate this Agreement upon notice to
Customer if Customer fails to comply with any of the terms and
conditions hereof, including, without limitation, payment terms,
applicable to Customer. Upon notice of termination of this Agreement
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under this Section 13, or upon any other termination or expiration of
this Agreement, Customer agrees to discontinue all use of the Software
and return to Vendor all copies of the Software and related
documentation in Customer's control or possession, together with a
written certification that it has done so. No termination of this
Agreement by Vendor shall constitute a waiver of any rights available
to Vendor as a result of any breach of this Agreement by Customer.
14. EXCUSABLE DELAYS
Vendor shall not be liable for delays in delivery, failure to deliver,
or otherwise to perform any obligation hereunder when such delay or
failure arises beyond the reasonable control and without the fault or
negligence of Vendor, including, without limitation, such causes as
acts of God or public enemies, labor disputes, supplier or material
shortages, embargoes, rationing, acts of local, state, or national
governments or public agencies, utility or communication failures,
fire, flood, epidemics, riots, strikes, or war. The time for
performance of any obligation delayed by such events will be postponed
for a period equal to the delay, unless Customer and Vendor agree to
the contrary in writing.
15. INTELLECTUAL PROPERTY RIGHTS.
Vendor shall indemnify Customer from any and all damages and costs
finally awarded for infringement of any valid United States patent,
trademark, or copyright in any suit based upon the license by Vendor or
the proper use by Customer of the Software hereunder, where Vendor is
the infringer with respect thereto, and from reasonable expenses
incurred in defense of such suit if Vendor does not undertake the
defense thereof, provided that Vendor is promptly notified of any such
suit, and, at its option, is given full and exclusive authority for the
control and defense of the same and all negotiations for its settlement
or compromise, and, further provided that this indemnity shall not
extend to infringement resulting from: (i) Vendor's compliance with
Customer's designs, processes, or formulas; (ii) a combination with or
an addition to the Software of any software not supplied by Vendor
hereunder; or, (iii) a modification of the Software by any person other
than Vendor. If any claim has occurred, or in Vendor's opinion is
likely to occur, Customer shall permit Vendor, at Vendor's option and
expense, either to procure for Customer the right to continue using the
Software or to replace or modify the same so that it becomes
non-infringing. If neither of the foregoing alternatives is acceptable
to Vendor, Customer shall return the Software on written request by
Vendor and this Agreement shall terminate with no continuing obligation
or liability of Vendor to Customer. THE FOREGOING STATES THE SOLE AND
EXCLUSIVE LIABILITY OF VENDOR FOR INFRINGEMENT AND IS IN LIEU OF ALL
WARRANTIES, EXPRESSED OR IMPLIED, IN REGARD THERETO.
16. NOTICES
Whenever any party hereto desires or is required to give any notice,
demand, consent, approval, satisfaction, or request with respect to
this Agreement, each such communication shall be in writing and shall
be effective only if it is delivered by personal service (which shall
include delivery by delivery service, over-night delivery service,
telecopy, or telefax) or mailed, by United States certified mail,
postage prepaid, and addressed as follows:
If to nFront: nFront, Inc.
0000 Xxxxxxxx Xxxx Xxxx, Xxxxx 000X
Xxxxxx, Xxxxxxx 00000
Attn.: President
Facsimile: (000) 000-0000
If to Sparak: Sparak
0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxx Xxxxxx 00000
Attn.: President
Facsimile: (000) 000-0000
If to Customer: Customer's Address as specified on the signature
page hereof
Facsimile: (xxx) xxx-xxxx
Such communications, when personally delivered, shall be effective upon
receipt, but, if sent by certified mail in the manner set forth above,
shall be effective three (3) business days following deposit in the
United States mail. Any party may change its address for such
communications by giving notice thereof to the other party in
accordance with the requirements of this section.
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17. MISCELLANEOUS
Except as otherwise provided herein, this Agreement, including any
attachments hereto, constitutes the entire agreement between Customer
and Vendor, and there are no other agreements, representations, or
warranties, expressed or implied, written or oral. The validity,
enforcement, interpretation, and construction of this Agreement shall
be determined in accordance with the laws of the State of Georgia. Each
party consents to the exclusive personal jurisdiction and venue of the
state and federal courts with jurisdiction in Xxxxxx County, Georgia
for a resolution of all disputes arising hereunder. If any provision of
this Agreement shall, for any reason, be held unenforceable in any
respect, such unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed to limit the application
of such unenforceable provision to the minimum extent necessary to
render the same enforceable, and, if such a limiting construction is
not possible, such unenforceable provision shall be deleted as if never
contained herein. Special provisions to this Agreement, if any, shall
be attached as exhibits or addenda hereto, and shall be binding only
when executed or initiated by authorized representatives of Customer
and Vendor. Any such special provisions shall control any conflict with
the provisions hereof Customer may not assign its rights hereunder or
delegate its duties hereunder, whether voluntarily, involuntarily, by
operation of law or otherwise, without the prior written consent of
Vendor, which consent may be withheld in the sole discretion of Vendor.
The headings and sub-headings used in this Agreement are for
convenience only and do not limit or amplify the terms hereof. The
authorization, following the execution of this Agreement, of additional
workstations or items of software shall be deemed an amendment to this
Agreement binding upon the parties during the entire term hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
indicated below. This Agreement shall be effective, following execution by
Customer, upon acceptance by Vendor at its principal place of business indicated
herein.
ACCEPTED:
Customer: VENDOR:
--------------------------- --------------------------------
Signature Signature
--------------------------- --------------------------------
Name Name
--------------------------- --------------------------------
Title Title
--------------------------- --------------------------------
Date Date
BILLING ADDRESS:
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EXHIBIT F
PASSWORD ESCROW AGREEMENT
THIS PASSWORD ESCROW AGREEMENT, made and entered into this 22nd day of
July, 1997, by and among nFront, Inc., (hereinafter "Licensor"), a Georgia
corporation with principal offices at 0000 Xxxxxxxx Xxxx Xxxx, Xxxxx 000X,
Xxxxxx, Xxxxxxx 00000, Sparak (hereinafter "Licensee"), a North Dakota
corporation with principal offices at 0000 Xxxxxxx Xxxxx, Xxxxx, Xxxxx Xxxxxx
00000 and _____________________ (hereinafter "Escrow Agent"), a Georgia trust
company with principal offices at _______________.
W I T N E S S E T H:
WHEREAS, Licensor and Licensee entered into that certain Marketing
Agreement of even date herewith (the "Marketing Agreement"), pursuant to which
Licensor has agreed to provide to Licensee the Back-up System (as defined in the
Marketing Agreement); and
WHEREAS, the Marketing Agreement provides for the delivery by Licensor
to License of the Password (as hereinafter defined) for the Back-up System under
certain circumstances.
NOW, THEREFORE, in consideration of the premises, as well as the
obligations herein made and undertaken. the parties hereto do hereby covenant
and agree as follows:
SECTION I.
DEFINITIONS
For the purposes of this Agreement, in addition to definitions set
forth elsewhere in this Agreement, the definitions set forth in this Section
shall apply to the respective capitalized terms immediately preceding each
definition.
1.1 "AGREEMENT." This Password Escrow Agreement, including any
exhibits, addenda, amendments, and modifications hereto.
1.2 "PASSWORD." A series of letter, numbers or symbols which,
will grant Licensee access to the Back-up System.
SECTION II.
REPRESENTATIONS AND WARRANTIES OF LICENSOR
2.1 OWNERSHIP OF PASSWORD. Licensor warrants and represents to
Licensee that it is the owner of and holder of all rights in the Password and
that the Password embodies highly valuable trade secret information, and that
Licensor has and will have the right to grant to Licensee the right to the
Password pursuant to the Marketing Agreement and to deposit the Password with
Escrow Agent pursuant to the terms hereof.
2.2 BACK-UP SYSTEM CORRESPOND WITH PASSWORD. Licensor warrants
and represents to Licensee that the Password to be deposited with Escrow Agent
will provide Access to the Back-up System.
SECTION III.
PURPOSE OF AGREEMENT; DEPOSIT OF PASSWORD
3.1 DEPOSIT OF PASSWORD. The deposit of the Password and the
release thereof to Licensee pursuant to the Marketing Agreement is intended to
provide assurance to Licensee of access and right of use of the Back-up
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System in the event of the occurrence of certain events as set forth in Section
5.
SECTION IV.
TITLE TO PASSWORD
4.1 Title to the Password shall remain in Licensor, but title to
the copy thereof to be deposited in escrow hereunder shall, in the event the
Password shall be delivered to Licensee pursuant hereto, pass to and vest in
Licensee. Notwithstanding its ownership of a copy of the Password in such event,
Licensee shall remain subject to the terms of the license granted pursuant to
the License Agreement with respect to the use thereof.
SECTION V.
RELEASE OF PASSWORD TO LICENSEE
5.1 RELEASE OF PASSWORD. The copy of the Password to be deposited
in escrow pursuant to this Agreement shall be released to Licensee only in
accordance with the terms of this Agreement.
5.2 Licensee shall be entitled to the Password under the Marketing
Agreement and under this Agreement should any of the following events occur: (a)
Licensee shall reasonably believe that the Licensor shall have become insolvent;
(b) Licensor shall invoke as a debtor any law relating to relief of debtors' or
creditors' rights, or have any such law invoked against it; (c) Licensor shall
have become involved in any liquidation or termination of business; (d) Licensor
shall be adjudicated as bankrupt; (e) Licensor shall be involved in any
assignment for the benefit of its creditors; or (f) if (i) more than fifty
percent (50%) of the equity or (ii) all of substantially all of the assets, of
Licensor shall have been acquired by an entity that conducts, either directly or
through a subsidiary or affiliated entity, a business that provides core
processing services for banks and other financial institutions that is
substantially similar to the business of Licensee as conducted on the date
hereof. In any such event, Licensee may thereupon so notify Escrow Agent in
writing and provide evidence of the same. Escrow Agent shall in such event
promptly release and deliver the Password to Licensee pursuant to the terms
hereof.
5.3 Right to unrestricted possession of the Password shall vest
in Licensee immediately upon a cause of release from escrow, and Licensee may
use the Password as specified in the Marketing Agreement.
SECTION VI.
DISPUTES
6.1 If a dispute arises out of or relates to this Agreement, or
its breach, and the parties have not been successful in resolving the dispute
through direct negotiation, the parties shall attempt to resolve the dispute
through non-binding mediation by submitting the dispute to a sole mediator
selected by the parties or, at any time at the option of a party, to mediation
by the American Arbitration Association ("AAA") in Atlanta, Georgia. If not thus
resolved, it shall be referred to a sole arbitrator selected by the parties
within days after the unsuccessful mediation or, in the absence of such
selection, to final and binding arbitration by a sole arbitrator under the AAA
Arbitration Rules ("Rules") in effect on the date of this Agreement. The
arbitrator may not limit, expand or otherwise modify the terms of this Agreement
or award exemplary or punitive damages or attorney's fees. The arbitrator shall
be knowledgeable in the law and technology aspects of the Agreement and shall
apply the substantive (not the conflicts) law of the state specified in Section
13.4 of this Agreement. Judgment upon the award rendered in the arbitration
shall be made within four (4) months of the appointment of the arbitrator and
may be entered in any court having jurisdiction thereof. Defenses based on the
passage of time are suspended upon submitting the dispute to the mediator or the
arbitrator and during the mediation or the arbitration. The time period during
the mediation or arbitration shall be disregarded in calculating such defenses.
Nothing in this clause shall be construed to preclude any party from seeking
injunctive relief in order to protect its rights during mediation or
arbitration. A request by a party to a court for the injunctive relief shall not
be deemed a waiver of the obligation to mediate or arbitrate. Each party shall
bear its own expenses and an equal share of the expenses of the mediator and
arbitrator and the fees of
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the AAA. The parties, their representatives, other participants and the mediator
and arbitrator shall hold the existence, content and result of the mediation and
arbitration in confidence.
SECTION VII.
FEES OF ESCROW AGENT
7.1 Licensee shall pay to Escrow Agent, annually in advance
during the terms hereof, the fees of the Escrow Agent at the rate prescribed on
the attached Exhibit A for its performance of services hereunder.
SECTION VIII.
LIMITATION ON OBLIGATION OF ESCROW AGENT
8.1 Escrow Agent shall not be required to inquire into the truth
of any statements or representations contained in any notices, certificates, or
other documents required or otherwise provided hereunder, and it shall be
entitled to assume that the signatures on such documents are genuine, that the
persons signing on behalf of any party thereto are duly authorized to execute
the same, and that all actions necessary to render any such documents binding on
the party purporting to be executing the same have been duly undertaken.
SECTION IX.
RELEASE AND INDEMNIFICATION OF ESCROW AGENT
9.1 Licensor and Licensee, severally, hereby do release Escrow
Agent from any and all liability for losses, damages, and expenses (including
attorney fees) that may be incurred on account of any action by Escrow Agent in
good faith pursuant to this Agreement, and such parties do hereby severally
indemnify Escrow Agent and undertake to hold harmless Escrow Agent from and
against any and all claims, demands, or actions arising out of or resulting from
such performance by Escrow Agent under this Agreement. The obligations of this
Section 9 shall survive the termination of this Agreement for any reason.
SECTION X.
CONFIDENTIALITY AND USE OF PASSWORD
10.1 CONFIDENTIALITY UNDERTAKING. The Password released to
Licensee pursuant to this Agreement shall be used by Licensee solely for the
purposes permitted by the Marketing Agreement. Licensee shall treat and preserve
the Password as a trade secret of Licensor in accordance with the same practices
employed by Licensee to safeguard its own trade secrets against unauthorized use
and disclosure, and in accordance with Article VII of the Marketing Agreement.
10.2 SURVIVAL OF OBLIGATIONS. The obligations of this Section 10
shall survive the termination of this Agreement for any reason and shall
continue for as long as the Password continues to embody trade secrets of
Licensor.
SECTION XI.
INDEPENDENT CONTRACTOR STATUS
11.1 The parties are and shall be independent contractors under
this Agreement, and nothing herein shall be construed to create a partnership,
joint venture, or agency relationship between the parties hereto. No party shall
have the authority to enter into agreements of any kind on behalf of the other
parties in any manner.
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SECTION XII.
TERM OF AGREEMENT
12.1 The term of this Agreement shall commence on the effective
date hereof and shall continue until the Password shall be transferred to
Licensee pursuant to the terms hereof, or, if such transfer shall not have so
occurred, the Agreement shall terminate and the Password shall be returned to
Licensor upon expiration or termination of the Marketing Agreement.
SECTION XIII.
MISCELLANEOUS
13.1 COMPLIANCE WITH LAWS. The parties hereto agree that they shall
comply with all applicable laws and regulations of governmental bodies or
agencies in their respective performance of obligations under this Agreement.
13.2 NO UNDISCLOSED AGENCY; NO ASSIGNMENT. Each party represents
that it is acting on its own behalf and is not acting as an agent for or on
behalf of any third party and agrees that it may not assign its rights or
obligations under this Agreement without the prior written consent of the other
parties hereto.
13.3 NOTICES. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
addressed to the respective party at the address noted above, unless by such
notice a different address shall have been designated.
13.4 GOVERNING LAW. All questions concerning the validity,
operation, interpretation, and construction of this Agreement shall be governed
by and determined in accordance with the laws of the State of Georgia.
13.5 NO WAIVER. No party shall, by mere lapse of time, without
giving notice or taking other action hereunder, be deemed to have waived any
breach by the other party (parties) of any of the provisions of this Agreement.
Further, the waiver by any party of a particular breach of this Agreement by any
other party shall not be construed as or constitute a continuing waiver of such
breach or of other breaches of the same or other provisions of this Agreement.
13.6 FORCE MAJEURE. No party shall be in default if failure to
perform any obligation hereunder is caused solely by supervening conditions
beyond such party's control, including acts of God, civil commotion, strikes,
labor disputes, or governmental demands or requirements.
13.7 PARTIAL INVALIDITY. If any part, term, or provision of this
Agreement shall be held illegal, unenforceable, or in conflict with any law of a
federal, state, or local government having jurisdiction over this Agreement, the
validity of the remaining portions or provisions hereof shall not be affected
thereby.
13.8 COMPLETE STATEMENT OF AGREEMENT. Each of the parties hereto
acknowledges that it has read this Agreement, understands it, and agrees to be
bound by its terms. The parties further agree that this Agreement is the
complete and exclusive state of agreement and supersedes all proposals (oral or
written), understandings, representations, conditions, warranties, covenants,
and all other communications between the parties relating hereto.
13.9 AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
13.10 RESIGNATION OF ESCROW AGENT. The Escrow Agent may resign its
duties and obligations hereunder by giving not less than sixty (60) days' prior
written notice thereof to Licensor and Licensee at their respective addresses as
set forth hereinabove or such other address as Licensor or Licensee may provide
in writing
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to the Escrow Agent.
13.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized representatives as set forth below:
"LICENSOR"
NFRONT, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
"LICENSEE"
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
"ESCROW AGENT"
By:
----------------------------------------
Title:
-------------------------------------
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NFRONT
UNIVERSAL NON-DISCLOSURE AGREEMENT
THIS UNIVERSAL NON-DISCLOSURE AGREEMENT (the "Agreement"), is made June 30,
1997, by and between nFRONT, with offices at 0000 Xxxxxxxx Xxxx Xxxx, Xxxxx
000X, Xxxxxx, Xxxxxxx 00000 ("nFront"), and Xxxxx Xxxxxxxx, of Sparak Financial
Systems, Inc. (the "Counterparty").
WITNESSETH:
This Agreement is made and entered into under the following circumstances:
(i) nFront and Counterparty each desire to exchange certain
documentation, trade secrets, and other information which may,
in whole or in part, constitute proprietary and confidential
information of the disclosing party for the purpose of
exploring mutual future potential business relationships.
(ii) Each party hereto is willing to disclose its respective
proprietary and confidential information to the other only
upon receipt of the assurances contained within this
Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
(1) Definitions.
For all purposes of this Agreement, the following terms shall have the
meanings assigned to them in this section 1:
(a) Owner - shall mean and include the party hereto, and any
affiliate thereof, disclosing Proprietary information to the
Recipients.
(b) Recipients - shall mean and include the party hereto, and any
affiliate thereof, disclosing Proprietary information from an
Owner.
(c) Proprietary Information - shall mean and include all
information, whether written or oral, and whether in the form
of documentation, correspondence, memoranda, reports, notes
computer retained information, software, computer programs,
technical and engineering specifications, source codes,
customer and supplier lists, patents, copyrights, trade names,
trade secrets, or otherwise (collectively, "Information"),
disclosed by an Owner to a Recipient, together with all
information derived, in whole or in part, by any person or
entity from any information; provided, however, that
Information shall not be deemed to be Proprietary information
hereunder to the extent, and only to the extent, that such
Information:
(i) is within the public domain prior to the time of
disclosure by an Owner to a Recipient, or thereafter comes
within the public domain other than as a result of unpermitted
disclosure by a Recipient; or,
(ii) was, prior to the date of disclosure to a Recipient, in
the lawful possession of such Recipient; or,
(iii) is independently acquired by a Recipient from a third
person or entity not under an obligation of confidentiality to
an Owner.
(2) Non-Disclosure and Non-Use of Proprietary Information.
Each Recipient shall, at all times, keep strictly confidential, and
shall not disclose or permit the disclosure to any third person or
entity, of any or all Proprietary Information received from an Owner,
and shall not, in any manner or at any time, use or permit the use of
any such Proprietary Information, for the benefit of
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itself or others except: (i) as contemplated in this Agreement; or,
(ii) upon the prior written consent of the Owner given in each specific
instance. Each party hereto shall cause its officers, employees, and
agents (collectively, "Employees") who may gain access to any
Proprietary Information of an Owner in connection with this Agreement,
prior to any disclosure to any such Employee, to execute and deliver to
the Owner a Confidentiality Statement in the form attached hereto as
Exhibit 1.
(3) Return of Proprietary Information.
Upon termination of this Agreement, each party hereto shall return or
cause to be returned to each Owner, respectively, all Proprietary
Information in tangible form received by it or any affiliate thereof
from such Owner, together with all copies thereof.
(4) Termination.
This agreement shall terminate twenty-four (24) months from the date
hereof, unless extended by mutual written agreement of the parties.
Termination of this Agreement shall not release either party of any of
its respective obligations hereunder.
(5) Specific Performance.
Each party hereto specifically acknowledges that the Proprietary
Information to be received hereunder is proprietary, unique, and
confidential information, and that a violation of the covenants
contained in section 2 or section 3 of this Agreement will cause
continuing and irreparable harm to a respective Owner thereof.
Therefore, each party hereto, and any Owner or other person or entity
with rights to enforce the restriction contained within such section 2
or section 3 shall, in addition to any other rights or remedies
available to it, at law or in equity, have the right to apply to a
court of competent jurisdiction for an injunction to restrain the
violation or continuing violation of such covenants.
(6) No Proprietary Rights.
Nothing contained in this Agreement shall be construed as granting or
conferring any rights, by license or otherwise, expressly, or by
implication, for any invention, discovery, or improvement made,
conceived, or acquired prior to or following the date of this
Agreement.
(7) Severability.
If any provision of this Agreement is deemed invalid or unenforceable,
such provision shall be deemed limited by construction in scope and
effect the minimum extent necessary to render the same valid and
enforceable, and, in the event no such limiting construction is
possible, such invalid or unenforceable provision shall be deemed
severed from this Agreement without affecting the validity of any other
term or provision hereof.
(8) Assignment; Third Party Beneficiaries.
Each party hereto may assign its rights hereunder (but not delegate its
duties hereunder), only upon the assignment by such party of all of its
rights in the corresponding Proprietary Information to the same
assignee. Each Owner shall be deemed to be a third party beneficiary of
this Agreement, entitled to enforce the provisions hereof, to the
extent of its ownership of any Proprietary Information.
(9) Governing law; Jurisdiction.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Georgia, without giving effect to the
principles of the conflicts of laws thereof. Each party hereby effect
to the principles of the conflicts of law thereof. Each party hereby
consents and agrees to the exclusive in personam jurisdiction and venue
of the state and federal trial courts located in Oconee County,
Georgia, for resolution of all disputes arising out of or in connection
with the interpretation or enforcement of the Agreement.
(10) Cost of Enforcement.
In the event any party hereto initiates legal action (including both
trial and appellate proceedings, at law in equity, or otherwise) to
enforce its rights hereunder, the prevailing party in any such action
shall recover
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from the nonprevailing party its reasonable litigational expenses
(including, but not limited to, reasonable attorney's fees and court
costs) of all such proceedings.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date
first written above.
Signed in the presence of: nFRONT
By: /s/ Xxxxx Xxxxxxx
-------------------------------- ------------------------------------
Its: President
-------------------------------- ------------------------------------
Signed in the presence of: SPARAK FINANCIAL SYSTEMS
By: /s/ Xxxxx Xxxxxxxx
-------------------------------- ------------------------------------
Its: Sec/Treas.
-------------------------------- ------------------------------------
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EXHIBIT 1
CONFIDENTIALITY STATEMENT
This Confidentiality Statement is given in accordance with the
requirements of a certain Universal Non-Disclosure Agreement, dated June 30,
1997 (the "Agreement"), by and between nFront and Xxxxx Xxxxxxxx. All
capitalized terms used herein shall have the same meaning as are assigned
thereto in the Agreement.
The undersigned, an officer, employee, or agent of a Recipient,
recognizes that the undersigned will, in connection with duties to be performed
on behalf of the Recipient or others by the undersigned, be granted access to
certain Proprietary Information of an Owner. In consideration of such Owner's
release of such Proprietary Information to the undersigned's Recipient, the
undersigned hereby recognizes, agrees, covenants, represents, and warrants to
Owner that:
(a) the undersigned will abide by all of the terms and provisions
of the Agreement binding upon the Recipient, including,
without limitation, those terms and provisions regarding the
non-disclosure and non-use of Proprietary Information of the
Owner, as if the undersigned were an additional party to the
Agreement; and,
(b) any Owner shall be entitled, as against the undersigned, to
those rights and remedies, including, without limitation,
injunctive relief, as are permitted to Owner against Recipient
pursuant to section 5 of the Agreement for any breach of the
Confidentiality Statement by the undersigned.
Signed in the presence of:
/s/ Xxxxx Xxxxxxxx
-------------------------------- -----------------------------------------
(Signature)
Xxxxx Xxxxxxxx, Sparak Financial Systems
-------------------------------- -----------------------------------------
Please Print Name
Name of Owner:
Dated: 7/1/97
-------------------------------- ------------------------------------
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