CORILLIAN CORPORATION
VOYAGER LICENSE AGREEMENT
Effective Date: December 21, 1999
Wachovia Operational Services Corillian Corporation ("Corillian")
Corporation ("Client") 0000 XX Xxxxxx Xxxx., Xxxxx 000
000 X. 0-0/0 Xxxxxx Xxxxxxxxx, Xxxxxx 00000
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000 (503) 627-0729
FAX (000) 000-0000
On the terms and subject to the conditions set forth below Corillian and Client
(each a "Party" and collectively the "Parties") hereby enter into this License
Agreement (the "Agreement").
TERMS AND CONDITIONS
1. GRANT OF LICENSE
1.1 Corillian hereby grants to Client a non-exclusive, non-transferable,
perpetual license to use, as more particularly described in this
Section 1 and in Section 2 hereof, production copies of certain
computer software programs and associated documentation (the
"Products"), as more particularly described in the Voyager Product
Schedule (the "Product Schedule") executed contemporaneously and made a
part of this Agreement, for the benefit of itself and its Affiliates
(as defined in Paragraph 1.2 below).
1.2 Clients license to use the Products (including any third party software
sublicensed through Corillian ("Third Party Software")) under this
Agreement may not be assigned, sublicensed or otherwise transferred,
whether by operation of law or otherwise, without Corillian's prior
written consent which may be granted or withheld in Corillian's sole
discretion; provided, however, that Client may assign its rights under
this Agreement (without amendment or alteration of such rights) to an
Affiliate of Client provided that Client gives Corillian written notice
of such assignment and that such Affiliate agrees in writing to be
bound by the terms of this Agreement and to assume Client's obligations
hereunder. For purposes of this Agreement, the term "Affiliate" means
an entity directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with an entity. For
purposes of this definition, "control" shall mean the right to vote or
direct the voting of at least fifty percent (50%) of the common stock
or other ownership interest in the entity. An "Affiliate" shall also
include any entity by or for which the Products had been used while
such Affiliate was controlling, controlled by or under common control
with Client, which, by reason of a spin-off, public offering, or the
like, ceases to be controlling, controlled by or under common control
with Client, provided, however, that such Affiliate shall cease to be
an Affiliate in the event that an entity which is not an Affiliate
subsequently acquires all of the common stock of such Affiliate. An
affiliate shall not include an entity that acquires all of the common
stock of Client, or an entity that acquires all of the common stock of
the entity that owns all of the common stock of Client, unless such
entity was an Affiliate of Client prior to such acquisition. In the
event of such an acquisition, if the acquiring entity so desires, the
parties agree to negotiate in good faith a license agreement for the
Products, under which the acquiring entity would receive a credit for
all license and other fees paid pursuant to Section 11 of the Product
Schedule.
PAGE 1
1.3 No later than December 30, 1999, the parties, along with a mutually
agreed upon escrow agent, agree to execute a Source Code Escrow
Agreement (the "Escrow Agreement") substantially in the form attached
as Exhibit A to this Agreement, and agree to maintain the same in
effect for the term of the Agreement. The Escrow Agreement shall
provide for the ongoing escrow of (i) the source code version of all
Products in such form that will allow Client, upon release, to build
and compile useable object code (ii) the similar source code version of
any and all updates, modifications, revisions and enhancements to be
delivered pursuant to this Agreement, as well as any other Products
provided pursuant to the Product Schedule, Support Services Schedule,
or otherwise pursuant to any agreement with the Client, and (iii) any
and all documentation developed by Corillian or in its possession
relating to the applicable source code (the "Source Code"). The Escrow
Agreement shall provide for the release of the Source Code for any
reason at any time upon written request by Client, in which event
certain obligations to pay an exit fee may come into effect as more
particularly described herein. In addition, the Escrow Agreement shall
provide for the provision by Corillian of certain knowledge transfer
and training services upon release of the Source Code from escrow and
for the continuous updating of the Source Code so that the Source Code
in escrow corresponds to the Products in use by Client. Upon any
release of the Source Code from Escrow, Client shall be granted a
license to the Source Code pursuant to the terms of the Escrow
Agreement, and the Source Code shall become part of the Products for
all purposes of this Agreement. After such release, Corillian will
provide Client directly with new versions of the Source Code
incorporating any Product modification, upgrades or enhancements or
other change to the Products made by Corillian pursuant to the Product
Schedule, Support Services Schedule or otherwise pursuant to any other
agreement with Client within thirty (30) days of acceptance by Client
of such modifications, upgrades or enhancements or other changes. In
the event the parties are unable, by December 30, 1999, to execute such
an Escrow Agreement, Client shall have the right to terminate this
Agreement and shall receive a full refund of all fees (including, but
not limited to, license, implementation and custom engineering) paid
pursuant to Section 11 of the Product Schedule, and any other fees paid
hereunder.
1.4 The license grant provided under this Agreement is an enterprise
license. Client may utilize any number of copies of the Products in
test, stress, development, production and business continuity
environments at any facility of the Client or its Affiliates as the
Client may elect. There shall be no license limitation on the number of
customers accessing or utilizing the Products licensed herein to
Client.
2. SCOPE OF USE
2.1 The Products may be used only for, by, or on behalf of, Client and its
Affiliates by employees of Client or its Affiliates or agents, vendors,
contractors and consultants (including third party hosts) of Client or
its Affiliates ("Consultants") at any facility of the Client or its
Affiliates to: (i) process Client's or its Affiliates' own data in a
production environment, including a backup mirrored system, (ii) to
maintain, support, modify, enhance or upgrade the Products (iii) to
otherwise perform testing and stress testing and development and (iv)
to establish, test and operate a business continuity or off-site
disaster recovery system. Client may not make any other use of the
Products without the prior written consent of Corillian which may be
granted or withheld in Corillian's sole discretion.
2.2 The parties agree that Client may, at its election, engage a Consultant
or Consultants to use and operate or host the Products on behalf of
Client or its Affiliates consistent with the terms and conditions as
set forth herein, and that in such case the Products may be used at a
facility owned or controlled by such Consultant or Consultants.
PAGE 2
2.3 Corillian and Client agree to negotiate in good faith the terms and
conditions for a Private Label or Servicing Agreement under which
Client would have the right to sublicense the Products to certain
designated institutions, and under which Client would have the right to
use the Products to process data and provide other services to third
parties in a service bureau environment.
2.4 Except as set forth in Section 1.1, 1.2 and 4.1 hereof, and except as
may be provided in any Private Label or Servicing Agreement as set
forth in Section 2.3 hereof, Client will not sublicense, sell, rent,
lease, give, transfer, assign, convey or otherwise dispose of any
portion of the Products, including any Third-Party Software, including,
but not limited to, any enhancement or modification thereto.
3. FEES AND EXPENSES
3.1 Client shall pay Corillian the fees and expenses set forth in Section
11 of the Product Schedule, in accordance with the schedule of payments
set forth in such Product Schedule.
3.2 Any federal, state, excise, and local government fees, assessments,
charges, and taxes connected with Client's license and use of the
Products, other than taxes based upon the net income of Corillian,
shall be the responsibility of Client.
4. PROPRIETARY RIGHTS
4.1 Corillian retains and reserves title and all ownership rights to the
Products. All general modifications, enhancements and releases provided
to Client pursuant to the Support Services Schedule between Corillian
and Client as well as modifications and enhancements made specifically
for Client and modifications and enhancements made by Client shall be
considered as part of the Products and owned by Corillian; provided,
however, that in the event that Client terminates support pursuant to
Section 13 of the Support Services Schedule, or pursuant to Section
6.2, 11.2, 11.3 or 15 hereof, or pursuant to Section 7 or 8 of the
Product Schedule, or in the event Corillian terminates support pursuant
to Section 12.2 of the Support Services Schedule, all modifications and
enhancements made thereafter specifically by or on behalf of Client
shall be owned solely by Client, but such ownership shall only
encompass the specific code modification or enhancement and does not
include any of the underlying code to the Products The parties agree to
negotiate in good faith the ownership of any modifications or
enhancements which in the future may be developed by Corillian for
Client pursuant to any engagement for additional custom engineering
services. All physical documents and media containing Products sent to
Client shall be deemed to be leased and not sold and their use
licensed. Client acknowledges that this Agreement conveys a limited
license, as expressed in this Agreement, and does not convey title or
any ownership rights to the Products. Excepting the foregoing and all
other work or services performed by Corillian pursuant to the
Agreements, including any subsequent Change Orders, Amendments or
Addenda thereto or related Work Orders, the parties acknowledge and
agree that Client is and will be developing or will be having developed
for it certain applications and interfaces that are complimentary to or
are used in conjunction with the Products as a part of an integrated
suite of financial and other services more broadly known as the "Prism
Project." The parties acknowledge and agree that such applications,
interfaces, discoveries, developments, concepts and other intellectual
property associated with the Prism Project shall be the sole property
of Client.
4.2 Client will not delete or in any manner alter the notices of
intellectual property rights of Corillian (or of the vendor of any
Third-Party Software licensed through Corillian) appearing on or
resulting from use of the Products delivered to Client. As a condition
of the license
PAGE 3
rights granted to Client in this Agreement, Client will reproduce and
display such notices on each copy it makes of any Product.
5. CONFIDENTIAL INFORMATION
5.1 Corillian and Client acknowledge that in order to perform the services
called for in this Agreement, it shall be necessary for each party to
disclose to the other certain Confidential Information, as defined in
Section 5.2 hereof. For purposes of this Section, a party disclosing
Confidential Information shall be referred to as the "disclosing party"
and a party receiving Confidential Information shall be referred to as
a "receiving party". The receiving party recognizes, acknowledges and
agrees that the Confidential Information of the disclosing party is a
special, valuable and unique asset of the disclosing party, its
affiliate(s) and its Consultant(s) which is considered secret and is
disclosed to the receiving party in confidence. The receiving party
agrees to take all reasonable precautions to prevent any portion of
disclosing party's Confidential Information, in any form or medium,
from being disclosed or made available by the receiving party or by any
of the receiving party's employees to any other person, firm, or
corporation except as is expressly permitted herein. In no event shall
the receiving party take precautions any less stringent than those
employed to protect its own trade secrets and proprietary information.
The receiving party will use the disclosing party's Confidential
Information only for the purposes set forth in this Agreement. The
receiving party agrees that it shall not disclose, transfer, use, copy
or allow access to any such Confidential Information of the disclosing
party to any employees or any third parties, including Consultants,
except for those who have a need to know such Confidential Information
in order to accomplish the requirements of this Agreement and who are
otherwise legally bound by obligations of confidentiality and
limitation of use sufficient to give effect to this Section 5, except
as otherwise permitted in this Agreement. The receiving party will
.promptly return or certify the destruction of the Confidential
Information of the disclosing party and all copies or extractions
thereof to the disclosing party within five days of the termination of
this Agreement. The receiving party shall promptly advise the other in
writing of any misappropriation or misuse of the Confidential
Information of the disclosing party by any person which may come to a
receiving party's attention, and shall cooperate with the disclosing
party in any action relating thereto.
5.2 As used herein, the term "Confidential Information" shall mean any
information about a disclosing party's (or its affiliates' or
Consultants') customers, data, operations, products, plans, processes,
programs (including software and data processing programs), procedures,
formulas, or other information that is confidential and proprietary to
a disclosing party (or its affiliates or Consultants). Confidential
Information shall not include any information which (i) is or becomes
generally available to the public other than as a result of disclosure
by the receiving party, its employees or agents; (ii) was within the
receiving party's possession on a non-confidential basis prior to its
disclosure by the disclosing party to the receiving party pursuant
hereto; (iii) is lawfully obtained by the receiving party from a third
party without any obligation of by the receiving party to maintain the
information as confidential or proprietary and without a known breach
of an obligation of confidentiality; (iv) is independently developed by
the receiving party without reference to the Confidential Information
of the disclosing party; or (v) receiving party is required to disclose
by law, regulation or judicial or regulatory order, provided that the
receiving party shall promptly notify the disclosing party of such
requirement so that the disclosing party may have such opportunity as
may be available to seek an appropriate protective order or otherwise
seek to protect the confidentiality of such Confidential Information.
The parties may also disclose each other's Confidential Information to
its internal and external auditors, accountants and attorneys, and to
its regulators. Without limiting the generality of the foregoing,
Corillian acknowledges and agrees that the terms of confidentiality
under this Agreement shall not be construed to limit Client's right to
PAGE 4
independently develop or acquire, or have developed for it, products
concepts, systems or techniques without use of the Confidential
Information that are similar to or compete with the products, concepts,
systems or techniques contemplated by or embodied in the Confidential
Information.
5.3 The parties hereto acknowledge that (i) the restrictions contained in
this Agreement are necessary to protect each of the parties'
proprietary interest in its Confidential Information, (ii) remedies at
law will be inadequate and any violation of these restrictions will
cause irreparable harm or damage to a disclosing party not compensable
in monetary damages and accordingly (iii) a disclosing party shall be
entitled to injunctive relief against any violation by the receiving
party
5.4 The obligations set forth in this Section 5 as they pertain to
Confidential Information shall survive the termination of this
Agreement and shall continue for so long as the relevant information
remains confidential.
6. WARRANTY, REMEDY AND LIMITATION OF LIABILITY
6.1 Corillian represents and warrants as follows:
6.1.1 That the Products are compatible with Client's data processing
system.
6.1.2 That at the time each Component of Products is accepted (as
defined in Section 7 of the Product Schedule) and for a period
of ninety (90) days thereafter, the such Component of the
Products will perform all the functions described in Exhibit 1
to the Product Schedule. Corillian does not warrant that the
Products will operate uninterrupted or error-free.
6.1.3 That Corillian has the right to license the Products to Client
as provided herein and that the Products, as used within the
scope of this Agreement, do not infringe copyright, patent,
trademark or other proprietary rights of a third party.
6.1.4 That the Products provided pursuant to this Agreement and used
by Client and its customers prior to, during or after the
calendar year 2000 include or shall include, at no additional
cost to Client, design and performance capabilities so that
Client shall not experience abnormally ending and/or invalid
and/or incorrect results from their use in the operation of
the business of Client. Furthermore, Corillian represents and
warrants that the Products will under normal use and service,
record, store, process and present calendar dates failing on
or after January 1, 2000, in the same manner, and with the
same functionality, data integrity and performance, as the
Products record, store, process and present calendar dates on
or before December 31, 1999. Corillian warrants that the
Products will lose no functionality with respect to the
introduction of records containing dates falling on or after
January 1, 2000.
The warranty set forth above applies only to the Products.
Corillian cannot, and does not, warrant that any hardware or
software with which the Products interact or to which the
Products are connected will be Year 2000 compliant. If the
Products do not operate, execute or otherwise function
properly as a result of flaws, errors, problems or defects in
hardware or software not provided or supplied by Corillian,
then Corillian shall have no obligations under this warranty.
6.1.5 The warranties provided in Sections 6.1.1, 6.1.2, 6.1.3 and
6.1.4 shall not apply if (i) the Products are used other than
in a manner contemplated by the parties,
PAGE 5
consistent with the features and functions defined in the
Product Schedule and in accordance with Corillian's
instructions, (ii) the Products are altered or modified by
Client without the written approval of Corillian, (iii) if the
Products do not perform because data communication is
interrupted by the action or inaction of Client or a third
party; or (iv) any other cause within the reasonable control
of Client shall cause the alleged breach.
6.1.6 OTHER THAN AS EXPRESSLY STATED IN THIS AGREEMENT, CORILLIAN
MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PRODUCTS OR ANY SERVICES PROVIDED IN CONNECTION
WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
6.1.7 The vendors of Third-Party Software make no warranties,
express or implied, to Client.
6.2 Client's remedies are as follows:
6.2.1 In all situations involving performance or non-performance of
the Products, Corillian's liability and Client's remedy shall
be limited to having Corillian supply as soon as practicable
code corrections as required to enable the Products to perform
the functions described in the Product Schedule. If after
sixty (60) days, Corillian is unable to make the Products
operate as warranted, Client may, at its option, (i)
regardless of whether Client shall have previously received
the Source Code pursuant to the Escrow Agreement, discontinue
use of the Products, terminate this Agreement, and the license
granted hereunder and receive a refund of the fees paid for
such license, less the reasonable value of use, calculated
using a three year straight line depreciation (if occurring
during the warranty period, there shall be no deduction for
reasonable use), and cancel all obligations with respect to
payment of custom engineering and implementation fees not
previously incurred prior to notice of termination and
terminate the Support Services Schedule without payment of an
exit fee thereunder and receive a pro-rata refund of fees paid
thereunder; (ii) Client may continue to use the Products with
reductions in the License Fee or Support Services Fee as the
parties may mutually agree shall be fair and equitable or
(iii) continue to use the Products, terminate the Support
Services Schedule, receive a pro-rata refund of the Support
Fees paid thereunder, pay Corillian an exit fee of $[ * ], or
the amount owing under Section 13.2 of the Support Services
Schedule, whichever is less and shall receive the Source Code
pursuant to the Escrow Agreement, including the knowledge
transfer obligation specified in Section 11 of the Support
Services Schedule and thereunder. In the event that Client has
previously exercised its election to receive the Source Code
pursuant to the Escrow Agreement, Client shall have the same
three remedies available to it. With respect to option (i),
Client shall return to Corillian or certify to Corillian
destruction of all copies of the Source Code thereof within 30
days of notice of termination and with respect to option
(iii), regardless of whether Client shall have previously
exercised its election to receive the Source Code, Corillian
shall complete the knowledge transfer obligation specified
-----------------------
* Portion has been omitted pursuant to a request for confidential
treatment and filed separately with the Commission.
PAGE 6
in Section 11 of the Support Services Schedule and under the
Escrow Agreement, if it has not already done so, and until
such completion shall continue to provide problem resolution
services on a time and materials basis, and Client shall pay
the exit fee upon completion of knowledge transfer.
6.2.2 For personal injury caused by Corillian's fault or negligence,
Client's remedies shall be provided as under applicable law
subject to the limitation contained in section 6.3 below.
6.3 EXCEPT AS SET FORTH IN SECTION 7.1 HEREOF, UNDER NO CIRCUMSTANCES SHALL
EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE PRODUCTS
OR ANY SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
ASPECT OF THIS AGREEMENT, INCLUDING LOST REVENUES OR PROFITS, LOSS OF
BUSINESS, OR LOSS OF DATA, REGARDLESS OF WHETHER A CLAIM IS BASED ON
CONTRACT, TORT, OR OTHERWISE, EVEN IF SUCH PARTY WAS ADVISED OR HAD
REASON TO KNOW OF THE POSSIBILITY THEREOF.
6.4 THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN THIS SECTION
SIX WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS
AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
7. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; INDEMNIFICATION
7.1 Corillian agrees to defend, indemnify and hold harmless Client and its
Affiliates against any third-party claims, liabilities, losses,
damages, costs and expenses (including reasonable attorneys' fees)
arising from or in connection with any claim that the Products, as used
within the scope of this Agreement, infringe or otherwise violate or
misappropriate any copyright, patent, trademark or other proprietary
rights of a third party. Notwithstanding the foregoing, Corillian shall
have no obligation to indemnify Client or its Affiliates if any such
third-party claim is caused by a modification or customization of the
Products made by Client or its Affiliates without the written consent
of Corillian, and Corillian shall also have no obligation to indemnify
Client or its Affiliates to the extent such a claim arises out of the
negligence or willful misconduct of Client or its Affiliates.
7.2 In the case of any claim arising under this Section 7 or under Section
8 hereof, (i) the indemnified party shall notify the indemnifying party
in writing within a reasonable time of receipt of written notice of any
such claim, (ii) the indemnifying party shall have control of the
defense and all related negotiations, including settlement
negotiations, provided, however that the indemnifying party shall not
impose any obligations upon the party seeking indemnification in the
absence of such party's written consent, and (iii) the indemnified
party shall provide the indemnifying party with reasonable assistance,
information and authority necessary to perform the above obligations.
Reasonable out-of-pocket expenses incurred by the indemnified party in
providing such assistance will be reimbursed as promptly as practicable
by the indemnifying party.
7.3 If Client's use of any Products under the terms of this Agreement is,
or in Corillian's opinion is likely to be, enjoined due to
infringement, violation or misappropriation claims, then Corillian may,
at its sole option and expense, either: (i) procure for Client the
right to continue using such Products under the terms of this
Agreement; (ii) replace or modify such Products so that they are
non-infringing, violating or misappropriating and substantially
equivalent in function; or (iii) if options (i) or (ii) above cannot be
accomplished despite the reasonable efforts of Corillian, then
Corillian may both:
PAGE 7
7.3.1 Terminate Client's rights and Corillian's obligations under
this Agreement with respect to such Products, and
7.3.2 Refund to Client the unamortized portion of the license fees
paid by Client to Corillian. Amortization is to be calculated
using a five-year straight line depreciation method.
7.4 THE FOREGOING ARE CORILLIAN'S SOLE AND EXCLUSIVE OBLIGATIONS, AND
CLIENT'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT,
VIOLATION OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
7.5 Corillian shall have no obligations under this section 7 with respect
to infringement or misappropriation arising from (i) modifications to
the Products that were not authorized by Corillian, (ii) Product
specifications requested by Client, unless approved by Corillian or
(iii) the use of the Products in combination with products not
provided, recommended or otherwise contemplated by Corillian, unless
Corillian has been given prior written notice of such use and has
approved it in writing, which approval may be granted or withheld in
Corillian's sole discretion.
7.6 The provisions of this Section 7 shall survive the termination of this
Agreement.
8. INDEMNIFICATION BY CLIENT
Client agrees to defend, indemnify and hold harmless Corillian against
any third-party claims, liabilities, losses, damages, costs and
expenses (including reasonable attorneys' fees) arising out of any acts
or omissions of Client in breach of its obligations under this
Agreement.
9. EXPORT RESTRICTIONS
This Agreement is expressly made subject to all laws, regulations, and
orders relating to or other restrictions on, the export of the Products
from the United States of America, which may be imposed from time to
time. Client may not export or re-export the Products, including
Third-Party Software, or Confidential Information of Corillian. The
foregoing restrictions shall not prevent a Client customer located
outside of the United States from accessing the Products to perform
account transactions supported by the Products.
10. MUTUAL RESTRICTION ON EMPLOYEE SOLICITATION
So long as Corillian is performing services under any Support Services
Schedule, neither Client nor Corillian shall either directly or
indirectly, through any person with direct knowledge of the terms of
this Agreement, solicit or offer employment to any of such other
Party's employees, with whom such hiring Party has had contact in the
course of performance of services under such Support Services Schedule
either for its own business or for the business of a third party,
except with the prior written approval of the other. The foregoing
restriction shall not apply to Client in the event Corillian fails to
provide any knowledge transfer or training services required pursuant
to the Support Services Schedule or the Escrow Agreement.
11. TERM AND TERMINATION
11.1 The term of this Agreement and the license granted pursuant to this
Agreement shall commence upon the effective date specified above, or if
not specified, then upon execution of this Agreement by Corillian and
Client. The license granted hereunder is a perpetual license. Corillian
may, in its sole discretion, sooner terminate this Agreement and the
license granted
PAGE 8
hereunder (i) immediately if Client materially violates or permits the
material violation of any of the provisions of section 5 of this
Agreement provided that such violation relates to a disclosure
concerning Corillian's intellectual property rights in the Products, or
(ii) thirty (30) days after Corillian notifies Client in writing of any
other breach by Client, provided such breach remains uncorrected thirty
(30) days following receipt by Client of written notification of such
breach, unless such breach is not capable of being cured within such
thirty (30) day period, in which case such cure period shall be
reasonably extended by Corillian. In either event, Client shall receive
no refund of any license fee or other charges paid hereunder.
11.2 If Corillian (i) is the subject of an order for relief under Chapter 7
or Chapter 11 of the Bankruptcy Code; (ii) is operated by a receiver,
custodian, trustee or liquidator or as debtor in possession; (iii)
makes an assignment for the benefit of creditors; or (iv) terminates
substantially all of its ongoing business operations relating to the
Products or is liquidated, Client may upon thirty (30) days prior
written notice (a) sooner terminate this Agreement, the Support
Services Schedule and discontinue use of the Products or (b) terminate
the Support Services Schedule, elect to obtain Source Code pursuant to
the Source Code Escrow Agreement, including knowledge transfer
thereunder and pursuant to the Support Services Schedule, and
thereafter continue to utilize the Products and the Source Code without
payment of an exit fee. The parties agree that, in the event any of the
contingencies set forth in this paragraph shall occur, or in the event
Corillian files a voluntary petition for bankruptcy relief or an
involuntary bankruptcy petition is filed against Corillian and an order
for relief is entered, Client shall have all the rights and obligations
provided to it under 11 U.S.C. Section 365(n).
11.3 In addition, except as otherwise expressly set forth herein, if
Corillian commits a material breach of this Agreement, and such breach
remains uncured thirty (30) days after Client has provided written
notice thereof to Corillian, unless such breach is not capable of being
cured within such thirty (30) day period, in which case such cure
period shall be reasonably extended by Client, Client may, at its
option (i) regardless of whether Client shall have previously received
the Source Code pursuant to the Escrow Agreement, discontinue use of
the Products, terminate this Agreement and cancel all obligations with
respect to payment of custom engineering and implementation fees not
previously incurred prior to notice of termination, and receive a
refund of any license fees for applications not previously accepted and
terminate the Support Services Schedule without payment of an exit fee
and receive a pro-rata refund of fees paid thereunder; (ii) continue to
use the Products with reductions in the License Fee and Support
Services Fee as the parties may mutually agree shall be fair and
equitable, or (iii) continue to use the Products, terminate the Support
Services Schedule, receive a pro-rata refund of the Support Fees paid
thereunder, pay Corillian an exit fee of $[ * ], or the amount owing
under Section 13.2 of the Support Services Schedule, whichever is less
and shall receive the Source Code pursuant to the Escrow Agreement,
including the knowledge transfer obligation specified in Section 11 of
the Support Services Schedule and thereunder. In the event that Client
has previously exercised its election to receive the Source Code
pursuant to the Escrow Agreement, Client shall have the same three
remedies available to it. With respect to option (i), Client shall
return to Corillian all copies of the Source Code or certify the
destruction thereof within 30 days of notice of termination and with
regard to option (iii), regardless of whether Client shall have
previously exercised its election to receive the Source Code, Corillian
shall complete the knowledge transfer obligation
---------------------
* Portion has been omitted pursuant to a request for confidential
treatment and filed separately with the Commission.
PAGE 9
specified in Section 11 of the Support Services Schedule and under the
Escrow Agreement, if it has not already done so, and until such
completion shall continue to provide problem resolution services on a
time and materials basis and Client shall pay the exit fee upon
completion of knowledge transfer.
11.4 Notwithstanding the termination of this Agreement pursuant to Sections
11.2 or 11.3, Client may not, under any circumstances, sell, disclose,
assign, transfer in any way or dispose of the Products, any part or
portion thereof, or the associated documentation, except as expressly
permitted herein.
12. AUTHORITY; COMPLIANCE WITH LAW
Each Party represents and warrants that (i) it has the power and
authority to enter into this Agreement and has taken all necessary
corporate action to authorize its performance under this Agreement,
(ii) this Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of each such Party, enforceable in
accordance with its terms, (iii) no consent or authorization of, filing
with, or notice to any governmental authority is required in connection
with its performance under this Agreement, and (iv) its entering into
this Agreement or performance by it hereunder will not violate any
federal, state or local licensing or other statute, rule or regulation,
or any contractual obligation of such Party. Each Party agrees to
comply in all material respects with all applicable laws, rules and
regulations in connection with its activities under this Agreement.
Without limiting the generality of the foregoing, Corillian represents
and warrants that the Products, when implemented, will comply, or shall
contain the functionality to permit Client to comply with all federal,
state and local laws and regulations then applicable to the
functionality of and services to be performed by the Products.
13. ESSENTIAL PERSONNEL
The Parties agree that the services of the following Corillian
employees (individually, an "Essential Party" and collectively
"Essential Parties") are essential to the satisfactory performance by
Corillian of the services called for in the Product Schedule: Xxxxxxx
Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxx Xxxxxx and Xxxx Xxxxxxxx. The Parties
further agree that if any Essential Party leaves the employ of
Corillian prior to Client acceptance of all of the Products, as defined
in the Product Schedule, for any reason or is unavailable to continue
to support the performance of services called for herein, in the
Product Schedule or Support Services Schedule, and if substitute
individuals acceptable to Client are not available to continue within
thirty (30) days, Client shall have the rights set forth in Section
11.3 hereof.
14. ARBITRATION
14.1 All disputes and controversies arising out of or in any way related to
this Agreement, the Product Schedule and the Support Services Schedule
shall be submitted to arbitration proceedings, which proceedings shall
be conducted under the commercial rules then prevailing of the American
Arbitration Association by a panel of three arbitrators. Corillian and
Client shall modify the time schedules provided under such rules and
shall use their best efforts to meet deadlines such that the
arbitration is concluded within ninety (90) days following its
initiation, or such other reasonable time as may be agreed by the
parties. The decisions of the arbitrators shall be final and binding
for all purposes on Corillian and Client and may be entered and
enforced in any court of competent jurisdiction.
14.2 Both Corillian and Client acknowledge that important issues are at
stake related to Corillian and Client's rights under this Agreement,
the Product Schedule, the Escrow Agreement and
PAGE 10
the Support Services Schedule. Therefore, both Corillian and Client
shall be entitled, at their discretion, to seek interim court relief,
including, but not limited to, preliminary injunctive, emergency,
specific performance, and other equitable relief without proof of
monetary damages, by application to a court of competent jurisdiction.
Corillian's and Client's agreement immediately above to submit to
arbitration shall not preclude Corillian or Client from seeking such
relief pending the outcome of arbitration.
15. FORCE MAJEURE
Neither Party shall be held liable for failure to fulfill its
obligations hereunder if such failure is due to a natural calamity, act
of government, or similar cause beyond the control of such Party.
Notwithstanding the foregoing, unless agreed to in writing by the
non-defaulting Party, any delay exceeding ninety (90) days shall be
grounds for termination by the non-defaulting Party if such delay is
not cured after thirty (30) days written notice of a Party's intent to
terminate. Client's termination rights shall be governed by Section
11.3 hereof.
16. SEVERABILITY
If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, that provision will be
enforced to the maximum extent permissible and the remaining provisions
of this Agreement will remain in full force and effect.
17. NOTICES
All notices, reports, instructions, requests, and other communications
given under this Agreement shall be in writing and shall be deemed to
have been given or made (i) if by mail, when received by certified
mail, postage prepaid, return receipt requested; or (ii) if by
facsimile, when sent by facsimile to the facsimile number set forth
below with evidence of receipt by sender or (iii) if by courier, when
received; provided, however, that either party may change its address
or facsimile number for notices by providing notice to the other party
of such change in the manner provided herein. Notices shall be directed
to the following addresses or facsimile numbers:
To Corillian: Corillian Corporation
0000 X.X. Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
To Client: Wachovia Operational Services
Corporation ("Client")
c/o Wachovia Bank, N.A.
000 X. Xxxxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Digital Platform Manager
(Xxxxxx Xxxxxxxx)
18. GENERAL GOVERNING LAW
This Agreement shall be interpreted, construed and enforced under the
laws of the State of New York without reference to its choice of law
rules.
PAGE 11
19. PRESS RELEASES
Upon acceptance of the Products in accordance with this Agreement, or
at such earlier time as may be mutually agreed by the parties in
writing, the parties may issue a mutually agreed to joint press release
describing the Agreement and the provision of Products and services
under the Product Schedule and Support Services Schedule. Neither party
shall issue any other public statement or press release regarding this
Agreement or the relationship of the parties without the prior written
approval of the other. The terms of this Agreement shall in all
respects be considered to be Confidential Information. In the event
that either party is required by law to make any public statement or to
otherwise disclose the terms of this Agreement, that party agrees to
provide reasonable notice of such disclosure and to provide a copy of
the content of such disclosure a reasonable time prior to the time such
disclosure shall be made.
20. GENERAL
20.1 The failure at any time by either Party to enforce, or to exercise any
election under, any provision of this Agreement will not be construed
as a waiver of such provision or election, or in any way as affecting
the validity of this Agreement or any part thereof, or the right of
such Party thereafter to enforce, or to exercise any election under,
each and every provision of this Agreement.
20.2 This Agreement shall inure to the benefit of, and be binding upon, the
Parties hereto and their permitted successors and assigns.
Corillian and Client acknowledge and agree that all rights and benefits
of and duties owing to Client under this Agreement shall also be deemed
to be rights and benefits of and duties owing to Client Affiliates,
provided that such Affiliates have agreed in writing to be bound by the
terms of this Agreement.
20.3 No amendment of this Agreement shall be binding unless it is in writing
and signed by both Parties.
20.4 This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which shall together constitute one and
the same agreement.
20.5 This Agreement does not create, and shall not be construed to create,
any joint venture or partnership between the Parties. No officer,
employee, agent, servant or independent contractor of either Party
shall be at any time be deemed to be an employee, servant, agent or
contractor of the other Party for any purpose. The Parties are
independent contractors, not employees, agents or representatives of
each other. Neither Party has the right to bind the other to any
agreement except as may be specifically provided herein.
20.6 Except to the extent such remedies are expressly stated to be
exclusive, no remedy conferred by any of the specific provisions of
this Agreement is intended to be exclusive of any other remedy. The
election of any one remedy by a Party shall not be deemed to constitute
a waiver of the right to pursue other available remedies.
20.7 In the event of any dispute arising out of the subject matter of this
Agreement, the prevailing Party shall recover, in addition to any other
damages assessed, its reasonable attorneys' fees and court costs
incurred in arbitrating or litigating such dispute.
PAGE 12
20.8 This Agreement, the Product Schedule, the Escrow Agreement and the
Support Services Schedule constitute the entire agreement between the
Parties with respect to the subject matter hereof and supersede all
prior discussions, negotiations, communications and agreements, oral or
written, relating to the subject matter hereof.
Each Party represents that it has read this Agreement, understands its
terms and conditions and agrees to be bound by the Agreement, and that
the person signing on behalf of each such Party is duly authorized to
sign the Agreement on behalf of the Party for which s/he signs and to
bind that Party to the terms and conditions of the Agreement.
Wachovia Operational Services Corporation Corillian Corporation
("Client")
Date: 12/22/99 Date: 12/23/99
------------------------------------ ----------------------
By: /s/ By: /s/ Xxxx Xxxxxx
-------------------------------------- ------------------------
Xxxx Xxxxxx, President
PAGE 13
CORILLIAN CORPORATION
VOYAGER PRODUCT SCHEDULE
Effective Date: December 21, 1999
Wachovia Operational Services Corillian Corporation ("Corillian")
Corporation ("Client") 0000 XX Xxxxxx Xxxx., Xxxxx 000
000 X. 00/0 Xxxxxx. Xxxxxxxxx, Xxxxxx 00000
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000 (503) 627-0729
FAX (000) 000-0000
Corillian Corporation ("Corillian"), an Oregon corporation, and Client agree
that this Voyager Product Schedule (the "Product Schedule") shall be
incorporated into and made subject to the provisions of the Corillian Voyager
License Agreement (the "Agreement") as of the effective date set forth above.
1. PRODUCTS
The following products, as modified for Client's use, have been licensed to
Client pursuant to the Agreement:
Voyager 2.4 Transaction Processing System/Control Center
1.0.2 OFX Banking & Xxxx Payment
V-Xxxx Presentment 2.6
Small Business 1.0
Target Marketing 1.0
Each of the foregoing is referred to as a "Component". The foregoing Components
together with any applications, custom engineering items or deliverables,
scripts, templates or other software created by Corillian in the course of
performing implementation or other professional services for Client as well as
all product documentation, if any, in electronic or hard copy formats, all
related technical information, and all updates and enhancements thereto are
collectively referred to as the "Products." In addition, the term "Products"
shall include the Source Code, as defined in the Agreement.
2. FEATURES AND FUNCTIONS
The Products shall have the features and functions and be installed in
accordance with the Project Deliverables Schedule, attached hereto as Exhibit 1.
With regard to any Phase 2 or later Component of the Products, unless otherwise
agreed, the features and functions set forth on Exhibit 1 shall be minimum
features and functions. Such Components shall have at least the features and
functions set forth on Exhibit 1, and the features and functions of the previous
version of such Component, unless otherwise agreed by the parties, and shall
have such other or additional features and functions as may be mutually agreed
by the parties.
3. XXXX PAYMENT PROCESSING
The Voyager system, and any related or later custom engineering deliverables,
will acquire xxxx payment instructions from Client's customers and forward the
electronic payment instructions to Client's xxxx pay system for processing and
payment. Client shall provide all appropriate infrastructure and support
agreements for xxxx payment. Xxxx Payment functionality is included in this
agreement based on Client's selection of a standard implementation to CheckFree
for xxxx pay processing.
1
4. OFX SPECIFICATION AND CERTIFICATION
Corillian's Voyager OFX product has been designed to meet OFX specification
version 1.0.2 as distributed by the Open Financial Exchange committee. Corillian
is not responsible for any changes to the OFX specification and transaction set.
Corillian will make its best effort to accommodate changes to the OFX
specifications, including adoption of IFX, XML or other data specifications,
that may be distributed by the OFX standards committee, Corillian will support
subsequent versions of OFX, or versions of IFX or XML, which are required to
support banking and xxxx pay transactions in subsequent commercial releases of
Microsoft Money-Registered Trademark- and Quicken-Registered Trademark-.
Corillian shall not be held responsible for any delays caused by any change
to such specifications unless Corillian does not exercise due diligence to
accommodate such changes.
A third party certification company shall be authorized to perform OFX
certifications by the OFX alliance companies (CheckFree, Intuit and Microsoft.)
Corillian shall not be held responsible for any delays or missed delivery dates
by a third party unless and to the extent Corillian has contributed to such
delays or missed delivery dates.
5. INSTALLATION AND CONFIGURATION
5.1 The Products shall be installed and configured by Wachovia,
with the assistance or supervision of Corillian, or its
agents.
5.2 Client shall make available computer equipment and software
configurations approved by Corillian as adequate to facilitate
the installation and implementation of the Products.
5.3 Installation of Product Components shall be in accordance with
the Project Deliverables Schedule, which is attached hereto as
Exhibit 1, and according to such time frames as may be
mutually agreed by the parties.
5.4 Client agrees to install, with Corillian's assistance, all
product updates, which support the features and functions
described in Exhibit 1.
6. TRAINING SERVICES
Corillian shall provide the following training services at Client's location as
a part of the total project cost:
- One-day, instructor-led training, in the use of Control Center for customer
service supervisors and one-half day for customer service and call center
employees.
- One-day, instructor-led training in the use of Marketing Center for
individuals who will be responsible for planning and executing targeted
marketing campaigns delivered to electronic banking customers.
- One-day, instructor-led training, for individuals who will be responsible
for establishing, monitoring, and troubleshooting daily xxxx pay processing
runs.
- One-half day, instructor-led training, for individuals will be responsible
for post-run xxxx pay reconciliation.
- One day classroom presentation of the system architecture of all Voyager
components, their functions and configuration, tuning and debug parameters.
The training will identify how each type of customer (Client internal
(i.e., Call Center), external web-based / PFM) executes all the various
transaction types through the system. This training will cover the
troubleshooting tools and methodologies that will be used to support the
Voyager components.
2
7. ACCEPTANCE CRITERIA
7.1 The Parties contemplate that the installation of different
Components and custom engineering deliverables will be
completed at different times. The following are the conditions
that must be fulfilled prior to acceptance by Client of a
Component of the Products or a custom engineering deliverable:
7.1.1 Installation evidenced by host connectivity and
access to account data.
7.1.2 The Component or custom engineering deliverable
contains the features and successfully performs the
functions described in Exhibit 1; provided however
that any function not enabled due to the inability
of client to provide in a timely fashion support,
equipment, software, infrastructure or third-party
authorization necessary for Corillian to implement
such function shall be considered implemented for
purposes of acceptance hereunder. Notwithstanding
any such acceptance, Corillian agrees to complete
the implementation as provided in the Agreements,
based on a delivery schedule to be mutually agreed
upon by the parties, once Client provides the
necessary support, equipment, software,
infrastructure or third-party authorization.
7.1.3 Completion of User Acceptance Testing, the procedures
and time frames for which shall be as mutually agreed
by the parties.
7.1.4 Delivery of a clean installation program and a clean
installation.
7.1.5 Delivery of acceptable hardware configuration and
product support documentation sufficient to allow
Client to operate the Products on a day to day basis.
7.2 Acceptance of a Component or custom engineering deliverable
shall be evidenced by (a) Client executing a document
substantially in the form of Exhibit 2 attached hereto, or (b)
commercial release of any feature or function described in
Exhibit 1 for use by Client's customers, whichever is earlier.
7.3 In the event that all of the Phase 1 Core Components or custom
engineering deliverables are not accepted, Client may, upon
fifteen (15) days notice to Corillian terminate this
Agreement, the License Agreement and the Support Services
Schedule without payment of any exit fee thereunder and
receive a refund of all fees paid pursuant to Section 11
hereof, excluding expenses and fees for implementation and
custom engineering work incurred prior to such notice, and of
the Support Fees paid pursuant to Section 2 of the Support
Services Schedule.
7.4 In the event that all of the Phase 2 Components or Phase 2 or
Phase 3 custom engineering deliverables are not accepted,
Client may, at its option (i) regardless of whether Client
shall have previously received Source Code pursuant to the
Escrow Agreement, discontinue use of the Products, terminate
this Agreement and cancel all obligations with respect to
payment of custom engineering and implementation fees not
previously incurred prior to notice of termination, and
receive a refund of any license fees for applications not
previously accepted and terminate the Support Services
Schedule without payment of an exit fee and receive a pro-rata
refund of fees paid thereunder; (ii) Client may continue to
use the Products with reductions in the License Fee and
Support Services Fee as the parties may mutually agree shall
be fair and equitable, or (iii) continue to use the Products,
terminate the Support Services Schedule, receive a pro-rata
refund of the Support Fees paid thereunder, pay Corillian an
exit fee of $[ * ], or the
------------------------
* Portion has been omitted pursuant to a request for confidential treatment and
filed separately with the Commission.
3
amount owing under Section 13.2 of the Support Services
Schedule, whichever is less, and shall receive the Source Code
pursuant to the Escrow Agreement, including the knowledge
transfer obligation specified in Section 11 of the Support
Services Schedule and thereunder. In the event that Client has
previously exercised its election to receive the Source Code
pursuant to the Escrow Agreement, Client shall have the same
three remedies available to it. With respect to option (i),
Client shall return to Corillian all copies of the Source Code
or certify the destruction thereof within 30 days of notice of
termination and with regard to option (iii), Corillian shall
complete the knowledge transfer obligation specified in
Section 11 of the Support Services Schedule and under the
Escrow Agreement, if it has not already done so, and until
such completion shall continue to provide problem resolution
services on a time and materials basis and Client shall pay
the exit fee upon completion of knowledge transfer.
8. DELAYS IN PROJECT DELIVERABLE SCHEDULE
8.1 In the event that Corillian shall solely cause any of the
following events to be delayed by more than thirty (30) days
from the date agreed to as set forth in Section 8.1.1 below,
Client may, upon fifteen (15) days notice to Corillian
terminate this Agreement, the License Agreement and the
Support Services Schedule without payment of any exit fee
thereunder and receive a refund of all fees paid pursuant to
Section 11 hereof, excluding expenses and fees for
implementation and custom engineering work incurred prior to
such notice , and the Support Fees paid pursuant to Section 2
of the Support Services Schedule:
(a) Completion of User Acceptance Testing for Phase 1
Core Components or custom engineering deliverables
(b) Commencement of Employee Pilot for Phase 1 Core
Components or custom engineering deliverables
(c) Production Release of the Phase 1 Core Components and
custom engineering deliverables for Use by Client
Customers
8.1.1 For purposes of determining the application of
remedies in paragraph 8.1, the parties will develop
a mutually agreed to Project Plan for Phase 1 Core
Component Deliverables and custom engineering
deliverables, which shall be made an addendum to the
Product Schedule. Any delay in the Project Plan for
Phase 1 Core Components and custom engineering
deliverables which is attributable to or results from
(i) changes to the Phase 1 Core Components or custom
engineering deliverables requirements made by Client
that the parties agree in advance will have the
effect of extending the project schedule, (ii) the
acts or omissions of Client, Client's customers,
employees, consultants, contractors, or other third-
party vendors, (iii) are mutually agreed to by the
parties, or (iv) are not otherwise within the
reasonable control of Corillian shall not be
considered to be solely caused by Corillian.
8.1.2 Specifically with respect to the OFX Component, the
application of remedies in Section 8,1 shall only
apply to a delay solely caused by Corillian in the
date for submission of the Component to Microsoft and
Intuit for OFX certification and testing, as provided
in the Project Plan.
8.2 Corillian agrees to use its best efforts to implement all
Phase 2 Components and Phase 2 and Phase 3 custom engineering
deliverables. In the event that Corillian shall solely cause
the production release of the Phase 2 Components or Phase 2
or Phase 3 custom engineering deliverables to be delayed for
more than thirty (30) days beyond the end of the [ * ],
Corillian agrees to pay Client a penalty of $[ * ] for every
additional month of delay up to a maximum
4
penalty of $[ * ]. In the event that Corillian is unable to implement
all Phase 2 Components and Phase 2 and Phase 3 custom engineering
deliverables by the end of the [ * ] despite its best efforts, then
Client may, at its option (i) regardless of whether Client shall have
previously received the Source Code pursuant to the Escrow Agreement,
discontinue use of the Products, terminate this Agreement and receive a
refund of all custom engineering and implementation fees not previously
incurred prior to notice of termination, together with refund of any
license fees for applications not previously accepted and terminate the
Support Services Schedule without payment of an exit fee and receive a
pro-rata refund of fees paid thereunder; (ii) Client may continue to
use the Products with reductions in the License Fee and Support
Services Fee as the parties may mutually agree shall be fair and
equitable, or (iii) continue to use the Products, terminate the Support
Services Schedule, receive a pro-rata refund of the Support Fees paid
thereunder, pay Corillian an exit fee of $[ * ], or the amount owing
under Section 13.2 of the Support Services Schedule, whichever is less
and shall receive the Source Code pursuant to the Escrow Agreement,
including the knowledge transfer obligation specified in Section 11 of
the Support Services Schedule and thereunder. In the event that Client
has previously exercised its election to receive the Source Code
pursuant to the Escrow Agreement, Client shall have the same three
remedies available to it. With respect to option (i), Client shall
return to Corillian all copies of the Source Code or certify the
destruction thereof within 30 days of notice of termination and with
regard to option (iii), Corillian shall complete the knowledge transfer
obligation specified in Section 11 of the Support Services Schedule and
under the Escrow Agreement, if it has not already done so, and until
such completion shall continue to provide problem resolution services
on a time and materials basis and Client shall pay the exit fee upon
completion of knowledge transfer.
8.2.1 Any delay in the production release of Phase 2 or
Phase 3 Components which is attributable to or
results from (i) changes to the Phase 2 or Phase 3
requirements made by Client that the parties agree in
advance shall have the effect of extending the
project schedule, (ii) the acts or omissions of
Client, Client's customers, employees, consultants,
contractors, or other third-party vendors, (iii) are
mutually agreed to by the parties, or (iv) are not
otherwise within the reasonable control of Corillian
shall not be considered to be solely caused by
Corillian.
9. CANCELLATION OF PHASE 2 AND PHASE 3
Up to thirty (30) days after acceptance of all Phase 1 Components and custom
engineering deliverables, Client may cancel Phase 2 and/or Phase 3 without
cause. Cancellation relieves both Corillian and Client of their respective
obligations to one another for Phase 2 and Phase 3 deliverables but does not in
any way effect the parties' rights and continued obligations with respect to
Phase 1 deliverables as provided herein, in the Voyager License Agreement and
Support Services Schedule.
10. SOFTWARE MAINTENANCE AND SUPPORT SERVICES
Software maintenance and support services for the Products shall be provided in
accordance with the Voyager Support Services Schedule attached hereto which is
incorporated into, and subject to the terms, of the Agreement.
-----------------------
* Portion has been omitted pursuant to a request for confidential treatment and
filed separately with the Commission.
5
11 FEES AND EXPENSES
11.1 INITIAL LICENSE AND IMPLEMENTATION FEES AND EXPENSES. The
following are the license and implementation fees for the
products and services described herein:
1. Voyager 2.4/Control Center License $[ * ]
2. OFX License $[ * ]
3. Implementation Services $[ * ]
4. Custom Engineering $[ * ]*
Total
11.2 Phase 2 License, Custom Engineering and Implementation Fees
1. V-Xxxx Presentment Application License $[ * ]
2. Small Business Application License $[ * ]
3. Direct Marketing Application License $[ * ]
4. Implementation Services $[ * ]
5. Custom Engineering $[ * ]*
Total
11.3 Phase 3 Custom Engineering Fees
1. Custom Engineering $[ * ]*
Total $[ * ]*
*The custom engineering items are an estimate only based on a time and
material basis at $1,500/day, but shall not exceed the quoted estimate
unless the provision of services covering such work as described within
Exhibit 1 shall change by mutual agreement of the parties.
In addition to the fees described above, Client shall pay
Corillian its reasonable out-of-pocket expenses incurred in connection with
implementation and training including, but not limited to, air travel, local
transportation, hotel rooms, meal expenses and communication costs, provided,
however, that all Corillian travel shall be first approved by a designated
Wachovia Project Manager and that all other expenses conform to mutually
acceptable guidelines to be developed by the parties.
Any amounts previously paid by Client pursuant to a Proof of Concept
Agreement or a Professional Services Agreement shall be credited toward the
Phase 1 payment set forth above.
11.4 PAYMENT OF LICENSE, CUSTOM ENGINEERING AND IMPLEMENTATION FEES
AND EXPENSES.
11.4.1 Phase 1: One-hundred percent (100%) of the license
fee associated with Voyager 2.4 l shall be paid upon
execution of this Agreement, one-hundred percent
(100%) of the OFX license fees shall be paid upon
acceptance by Client or commercial release for use by
Client's customers of the same. Fees associated with
custom engineering, implementation, as well as
Corillian's expenses, shall be paid on an as incurred
monthly basis.
11.4.2 Phase 2: , One-hundred percent (100%) of the V-Xxxx
Presentment, Small Business and Direct Marketing
application license fees shall be paid upon
----------------------
* Portion has been omitted pursuant to a request for confidential treatment and
filed separately with the Commission.
6
acceptance by Client or commercial release for use by
Client's customers of the same. Phase 2 Product
Components Fees associated with custom engineering,
implementation, as well as Corillian's expenses,
shall be paid on an as incurred monthly basis.
11.4.3 Phase 3: Fees associated with custom engineering,
implementation, as well as Corillian's expenses,
shall be paid on an as incurred monthly basis.,
11.4.4 Client agrees to pay Corillian all fees due within 30
days of receipt of invoice.
11.5 RECURRING FEES. Client shall pay the following recurring fees: An annual
maintenance as set forth in the Voyager Support Services Schedule beginning
January 1, 2001, as more particularly set forth therein.
Each party represents that it has read this Product Schedule, understands its
provisions and that the Product Schedule is a part of the Agreement, and that
the person signing the Product Schedule on behalf of each party is authorized to
do so.
Wachovia Operational Services Corillian Corporation
Corporation
DATE: DATE:
12/22/99 12/23/99
----------------------------------- -----------------------------------
BY: BY:
/s/ /s/ Xxxx Xxxxxx
----------------------------------- -----------------------------------
Xxxx Xxxxxx, President
7
PRISM
Phase One Solution Overview
Version 2.01 12/13/1999
--------------------------------------------------------------------------------
PHASE ONE - SOLUTION OVERVIEW
The Prism Phase One/"Day 1" release will consist of RETAIL/CONSUMER BANKING,
XXXX PAY (via CheckFree) and OFX/PFM DOWNLOAD functionality.
SIGN-ON/AUTHENTICATION and ENROLLMENT will be based on Prism's chosen Directory
Services infrastructure (design details yet to be determined by Prism; current
understanding is that Prism's single sign-on solution will redirect to our
server extension for Voyager sign-on and assumes Prism's solution for handling
ID of "customer" and "bank" will seamlessly integrate with current Voyager
customer relationship/association design).
Prism's INET SERVICES team is developing an in-house solution for MAINFRAME
CONNECTIVITY.
HTML SIGN-ON & ENROLLMENT
- Corillian to deliver client layer/HTML to be integrated with Prism Directory
Services solution.
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
HTML SIGN-ON & ENROLLMENT CORE OR CUSTOM CUSTOM ENG
FUNCTIONALITY/DELIVERABLE CUSTOM OWNER DAYS DEFINITION AND/OR NOTES
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
A. [ * ] Custom Xxxx Xxxxx 7 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
B. [ * ] Custom Xxxx Xxxxx 6 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
C. [ * ] Custom Xxxx Xxxxx 6 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
D. [ * ] Custom Xxxx Xxxxx 6 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
E. [ * ] Custom Xxxx Xxxxx 7 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
HTML BANKING
-Designed for / supports browsers of version 4.0 or higher (IE, Netscape, AOL),
128 bit encryption with scripting enabled.
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
HTML BANKING CORE OR CUSTOM CUSTOM ENG
FUNCTIONALITY/DELIVERABLE CUSTOM OWNER DAYS DEFINITION AND/OR NOTES
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
A. [ * ] Custom Xxxx Xxxxx 7 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
-----------------------------
*Portion has been omitted pursuant to a request for confidential treatment and
fled separately with the Commission.
--------------------------------------------------------------------------------
1
-copyright- 1999 Corillian Corporation Prism Project Confidential
PRISM
Phase One Solution Overview
Version 2.01 12/13/1999
--------------------------------------------------------------------------------
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
HTML BANKING CORE OR CUSTOM CUSTOM ENG
FUNCTIONALITY/DELIVERABLE CUSTOM OWNER DAYS DEFINITION AND/OR NOTES
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
B. ACCOUNT BALANCES /SUMMARY Core N/A - DDA (Checking, Savings, Money Market), TDA
(CDs), Brokerage, Line Of Credit, Installment
Loans, Credit Cards
Custom Xxxx Xxxxx 11 -[ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
C. ACCOUNT DETAIL / HISTORY Core N/A N/A -For all Accounts listed within "Account
Balances" except Brokerage, Installment Loans
and CDs
Custom Xxxx Xxxxx 11 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
D. [ * ] Custom Xxxx Xxxxx 5 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
E. [ * ] Custom Xxxx Xxxxx 7 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
F. FUNDS TRANSFER Core N/A -Will provide ability for cust. to transfer
funds within any account within their profile
within the same bank (intra-profile); single,
recurring, same day (assumes day is bank
processing day), future dated
Custom Xxxx Xxxxx 7 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
G. [ * ] Custom Xxxx Xxxxx 10 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
H. FUNDS TRANSFER - MODIFY Core Xxxx Xxxxx 9 -View pending, modify "from," "to," "date",
PENDING "amount,"
Custom [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
I. FREQUENTLY ASKED QUESTIONS Core N/A N/A Prism DFS to provide content
(FAQS) PAGE
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
J. TERMS & CONDITIONS PAGE Core N/A N/A Prism Legal, Compliance & Marketing to provide
content
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
K. SECURITY INFORMATION PAGE Core N/A N/A Prism DFS to provide content
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
L. CUSTOMER SERVICE CENTER Core N/A N/A [ * ]
Custom Xxxx Xxxxx
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
HTML XXXX PAY
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
HTML XXXX PAY CORE OR CUSTOM CUSTOM ENG
FUNCTIONALITY/DELIVERABLE CUSTOM OWNER DAYS DEFINITION AND/OR NOTES
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
A. [ * ] Custom Xxxx 250 -[ * ]
Madison
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
B. [ * ] Custom Xxxx Xxxxx 8 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
------------------------
*Portion has been omitted pursuant to a request for confidentail treatment and
filed separately with the Cimmission.
--------------------------------------------------------------------------------
2
-copyright- 1999 Corillian Corporation Prism Project Confidential
PRISM
Phase One Solution Overview
Version 2.01 12/13/1999
--------------------------------------------------------------------------------
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
C. PAYEE & PAYMENT MANAGEMENT Core N/A N/A -Add, delete, activate, archive payees
[ * ]
Custom Xxxx 15
Madison
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
D. PAYEE & PAYMENT HISTORY Core N/A N/A With table sorting
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
E. [ * ] Custom Xxxx Xxxxx 4 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
F. CANCEL XXXX PAY Core N/A N/A
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
G. [ * ] Custom Xxxx 21 [ * ]
Madison &
Xxxxxx
Xxxxxx
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
H. [ * ] Custom Xxxx 25 [ * ]
Madison
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
OFX
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
OFX CORE OR CUSTOM CUSTOM ENG
FUNCTIONALITY/DELIVERABLE CUSTOM OWNER DAYS DEFINITION AND/OR NOTES
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
A. [ * ] Custom Xxxx Xxxxx 11 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
B. FINANCIAL INSTITUTION PROFILE Core N/A N/A
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
C. ACCOUNT INFO. REQUEST Core N/A N/A -Same as HTML Balances/Summary
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
D. STATEMENT REQUEST Core N/A -Same as HTML Detail/History
[ * ]
Custom Xxxx Xxxxx 11
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
E. FUNDS TRANSFER Core N/A Will provide ability for customer to transfer
funds within any account within their profile
within the same bank (intra-profile)
Custom Xxxx Xxxxx 11 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
F. XXXX PAYEE & PAYMENT Core N/A N/A
MANAGEMENT
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
---------------------------
*Portion has been ommitted to a request for confidential treatment and filed
separately with the Commission.
--------------------------------------------------------------------------------
3
-copyright- 1999 Corillian Corporation Prism Project Confidential
PRISM
Phase One Solution Overview
Version 2.01 12/13/1999
--------------------------------------------------------------------------------
CONTROL CENTER BACK-OFFICE TRACKING & REPORTING
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
CONTROL CENTER CORE OR CUSTOM CUSTOM ENG
FUNCTIONALITY/DELIVERABLE CUSTOM OWNER DAYS DEFINITION AND/OR NOTES
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
A. REPORT CENTER Core N/A N/A i Xxxx Pay Reports
ii Unfunded Payments
iii Paid Payments
iv New Customers
v Total Customers
vi Total Sessions
vii New vs. Total
viii Session Statistics
ix Total Transactions
x Transactions by Group
xi Unsuccessful Transactions
xii Report Groups
xiii Summary Status
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
B. RELATIONSHIP CENTER Core N/A N/A i Customer Support Screens
ii Agent Support Cases
iii Agent Alert
iv Monitored Transactions
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
C. WORKFLOW Core N/A N/A i Agent Management
ii Case Management
iii Case Detail Report
iv Xxxx Pay Fees
v Message Types
vi Case Statuses
vii Case Dispositions
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
D. SYSTEM SET UP Custom Xxxx XxXxxx I [ * ]
N/A ii Edit System Users
Core iii Add System User
iv Delete System Users
v View User Permissions
vi View Users by Permissions
vii Modify Permission Definitions
viii Add Permission Definition
ix User Monitor
x Audit Log
xi Scheduled Tasks
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
E. [ * ] Custom Xxxx XxXxxx 20 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
-----------------
*Portion has been ommitted pursuant to a request for confidential treatment and
filed separately with the Commission.
--------------------------------------------------------------------------------
4
-copyright- 1999 Corillian Corporation Prisim Project Confidential
PRISM
Phase One Solution Overview
Version 2.01 12/13/1999
--------------------------------------------------------------------------------
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
CONTROL CENTER CORE OR CUSTOM CUSTOM ENG
FUNCTIONALITY/DELIVERABLE CUSTOM OWNER DAYS DEFINITION AND/OR NOTES
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
F. [ * ] Custom Xxxx XxXxxx 20 [ * ]
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
G. [ * ] Custom Xxxx XxXxxx
--------------------------------------- ------------- ------------ -------------- ------------------------------------------------
[ * ] DATABASE CONVERSION/MIGRATION (CUSTOM) XXXX XXXXXX; XXX ENG. DAYS
To convert from Prism's current online banking and xxxx pay system [ * ] to the
Corillian Voyager Internet banking platform (SIS), Corillian will:
|X| [ * ]
|X| [ * ]
|X| [ * ]
-------------------
*Portion has been ommitted pursuant to a request for confidential treatment and
filed separately with the Commission.
--------------------------------------------------------------------------------
5
-copyright- 1999 Corillian Corporation Prisim Project Confidential
PRISM
Phase One Solution Overview
Version 2.01 12/13/1999
--------------------------------------------------------------------------------
VOYAGER PLATFORM
PRISM VOYAGER GENERAL
VERSION AVAILABILITY KEY FEATURE ADDS
DATE
--------------- ------------ ------------------- ----------------------------------------------
DAY 1 2.4* [ * ] - Cluster support for the TRB
- TP & TRB counters
- SNMP support
- Scheduled transfers
- CheckFree SIS compatibility
- Batch payments
*Release of SIS will be on the current database schema. An upgrade to the new
database schema will occur at a later date.
------------------------
* Portion has been ommitted to a request for confidential treatmnt and filed
sepatately with the Commission.
--------------------------------------------------------------------------------
6
-copyright- 1999 Corilllian Corporation Prism Project Confidential
PRISM
Phase Two - Future/Planned Enhancements
Version 1.9 12/13/1999
--------------------------------------------------------------------------------
PHASE TWO - FUTURE/PLANNED ENHANCEMENTS
REQUIREMENT CORE OR OWNER ENG DAYS TIMEFRAME CUSTOMER CORILLIAN DESIGN APPROACH PRISM TECHNICAL IMPACT &
CUSTOM EXPERIENCE & CONSIDERATIONS CONSIDERATIONS
---------------- --------- --------- --------------- ----------- ------------ -------------------------- -------------------------
[ * ] Custom Milind 3 person months [ * ] [ * ] [ * ] [ * ]
Pandit for proto-type
in-house
solution
---------------- --------- --------- --------------- ----------- ------------ -------------------------- -------------------------
TARGETED Core N/A N/A [ * ] [ * ] [ * ] [ * ]
MARKETING
Custom Milind 3 person
Pandit months of
custom work
---------------- --------- --------- --------------- ----------- ------------ -------------------------- -------------------------
SMALL BUSINESS Core N/A N/A [ * ] [ * ] [ * ]
Custom Xxxx 50
XxXxxx
---------------- --------- --------- --------------- ----------- ------------ -------------------------- -------------------------
[ * ] Custom Xxxx 4 [ * ] [ * ] [ * ]
Xxxxx
Xxxxxx If integrated
Pandit w/ Marketing
Center, 2
weeks of
custom work
---------------- --------- --------- --------------- ----------- ------------ -------------------------- -------------------------
[ * ] Custom Xxxx 6 [ * ] [ * ] [ * ]
Xxxxx
Xxxxxx If integrated
Pandit w/ Marketing
Center, 2
weeks of
custom work
---------------- --------- --------- --------------- ----------- ------------ -------------------------- -------------------------
--------------------------
* Portion has been omitted pursuant to a request for confidential treatment and
filed separately with the Commission.
--------------------------------------------------------------------------------
1
-copyright- 1999 Corillian Corporation Prism Project Confidential
PRISM
Phase Two - Future/Planned Enhancements
Version 1.9 12/13/1999
--------------------------------------------------------------------------------
PHASE TWO - FUTURE/PLANNED ENCHACEMENTS
REQUIREMENT CORE OR OWNER ENG DAYS TIMEFRAME CUSTOMER CORILLIAN DESIGN APPROACH PRISM TECHNICAL IMPACT &
CUSTOM EXPERIENCE & CONSIDERATIONS CONSIDERATIONS
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
[ * ] Either Milind 2 person [ * ] [ * ] [ * ] [ * ]
Core Pandit weeks of
or custom work
Custom
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
[ * ] Custom Xxxx 12 [ * ] [ * ] [ * ]
Xxxxx
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
[ * ] Custom Xxxx 30 [ * ] [ * ] [ * ]
Xxxxx
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
[ * ] Custom Xxxx 27 XXX XXX, Related to above. TBD
Xxxxx
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
[ * ] Custom Xxxx 27 TBD Same as above. TBD
Xxxxx
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
[ * ] Custom Xxxx 15 [ * ] [ * ] None
Xxxxx
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
--------------------------
* Portion has been omitted to a request for confidential treatment and filed
separately with the Commission.
--------------------------------------------------------------------------------
2
-copyright- 1999 Corillian Corporation Prism Project Confidential
PRISM
Phase Two - Future/Planned Enhancements
Version 1.9 12/13/1999
--------------------------------------------------------------------------------
PHASE TWO - FUTURE/PLANNED ENCHACEMENTS
REQUIREMENT CORE OR OWNER ENG DAYS TIMEFRAME CUSTOMER CORILLIAN DESIGN APPROACH PRISM TECHNICAL IMPACT &
CUSTOM EXPERIENCE & CONSIDERATIONS CONSIDERATIONS
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
[ * ] Core N/A 0-40 days: [ * ] [ * ] [ * ]
Custom Xxxx Using
Madison standard
matching
algorithm
and existing
file format
= 0
Custom
matching
algorithm =
10
Custom file
format = 15
Additional
requirement
for response
file
processing =
15
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
[ * ] Custom Xxxx 30 TBD [ * ] [ * ]
Xxxxx
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
[ * ] Custom Xxxx 12 [ * ] [ * ] [ * ]
Xxxxx
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
XXXX Core N/A N/A To be negotiated, pending
PRESENTMENT Wachovia requirements.
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
[ * ] Custom Xxxxx ? To be negotiated, pending
Ishida Wachovia requirements.
------------ --------- --------- -------------- ----------- ------------ -------------------------- ------------------------------
--------------------------
* Portion has been omitted to a request for confidential treatment and filed
separately with the Commission.
--------------------------------------------------------------------------------
3
-copyright- 1999 Corillian Corporation Prism Project Confidential
PHASE 3 CUSTOM ENGINEERING
FEATURE LIST
The nature of the Phase 3 project is to co-design and develop a new version of
the Voyager transaction processor to support [ * ]. Such new version is expected
to be generally released by Corillian as its 3.0 version of Voyager. At this
stage, the detailed feature list is still under development. Currently, the
parties have agreed that the new version is expected to have the same basis
features functionality as Voyager 2.4, as well as the following high-level
features. Corillian will use its best efforts to implement all of the Priority 1
items listed below. Priority 2 and Priority 3 items will be implemented if or
when appropriate, as agreed upon by both Client and Corillian. Additional
features will be mutually agreed to by the parties. The feature set is also
conditional upon technical feasibility, which will be determined during the
design phase.
Wachovia prioritization is based on:
1 = Highest priority requirement
2 = Dependency on industry availability
3 = Corillian directed feature enhancement
-------------------------------------------------------------------------------------------------------------
Wachovia Priority Feature
-------------------------- ----------------------------------------------------------------------------------
1 [ * ]
-------------------------- ----------------------------------------------------------------------------------
1 [ * ]
-------------------------- ----------------------------------------------------------------------------------
1 [ * ]
-------------------------- ----------------------------------------------------------------------------------
1 [ * ]
-------------------------- ----------------------------------------------------------------------------------
1 [ * ]
-------------------------- ----------------------------------------------------------------------------------
1 [ * ]
-------------------------- ----------------------------------------------------------------------------------
1 [ * ]
-------------------------- ----------------------------------------------------------------------------------
1 [ * ]
-------------------------- ----------------------------------------------------------------------------------
2 [ * ]
-------------------------- ----------------------------------------------------------------------------------
2 [ * ]
-------------------------- ----------------------------------------------------------------------------------
2 [ * ]
-------------------------- ----------------------------------------------------------------------------------
2 [ * ]
-------------------------- ----------------------------------------------------------------------------------
2 [ * ]
-------------------------- ----------------------------------------------------------------------------------
3 [ * ]
-------------------------- ----------------------------------------------------------------------------------
3 [ * ]
------------------------ ----------------------------------------------------------------------------------
3 [ * ]
-------------------------- ----------------------------------------------------------------------------------
3 [ * ]
-------------------------- ----------------------------------------------------------------------------------
3 [ * ]
-------------------------- ----------------------------------------------------------------------------------
3 [ * ]
-------------------------- ----------------------------------------------------------------------------------
3 [ * ]
------------------------- ----------------------------------------------------------------------------------
--------------------
* Portion has been omitted pursuant to a request for confidential treatment and
filed separately with the Commission.
CORILLIAN CORPORATION
VOYAGER SUPPORT SERVICES SCHEDULE
Effective Date: December 21, 1999
Wachovia Operational Services Corillian Corporation ("Corillian")
Corporation ("Client") 0000 XX Xxxxxx Xxxx., Xxxxx 000
000 X. 0-0/0 Xxxxxx Xxxxxxxxx, Xxxxxx 00000
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000 (503) 627-0729
FAX (000) 000-0000
Corillian, an Oregon corporation, and Client agree that this Voyager Support
Services Schedule (the "Support Schedule") shall be incorporated into and
subject to the provisions of the Corillian Voyager License Agreement (the
"Agreement") as of the effective date identified above.
1. VOYAGER PRODUCT SUPPORT TERMS
This Support Schedule outlines the software support program provided for the
Voyager Products licensed to Client pursuant to the Agreement, as defined in the
Product Schedule (collectively the "Products"). Corillian provides support to
Client, and Client is responsible for first tier support to its customers.
Support commences on the date that any function described in Exhibit 1 of the
Product Schedule is released for commercial use by Client's customers. The
support program provided herein is for an initial term commencing as above and
ending on December 31, 2003, and shall be automatically renewed for successive
one-year terms unless terminated as set forth in Section 12 or 13 hereof. In the
event of termination of the Agreement, Corillian agrees to provide Client with
reasonable assistance in migration to a new system. Client agrees to pay
Corillian for its services in this regard on a time and materials basis at
Corillian's then prevailing rates.
Support is only available for the current release or the immediately previous
major release of the Products and only for those Products located in the region
for which Client has purchased software support. In the event Corillian elects
to terminate support for a release, Corillian agrees to provide Client with one
hundred eighty (180) days prior notice. Unless specified otherwise by Corillian
and agreed to by Client, the region is the United States of America.
Client may reinstate lapsed support by paying all support fees in arrears, a
reinstatement fee of $[ * ], and all costs invoiced by Corillian on a time and
materials basis for updating the Products to the current release. Corillian
retains the right to modify its support programs so long as such modifications
do not in any way decrease support provided to Client pursuant to the Agreement.
Corillian shall have no obligation to support: Products altered or damaged by
Client; Products modified by Client without authorization by Corillian; Products
installed on any computer hardware or operating system not supported by
Corillian; Products that are not the most current release or the immediately
previous major release; Product problems caused by Client's negligence or abuse;
use of
---------------------
* Portion has been omitted pursuant to a request for confidential
treatment and filed separately with the Commission.
PAGE 1
Products other than as specified in the Product documentation; or other causes
beyond the control of Corillian, provided however that a Year 2000 compliance
failure shall not constitute a cause beyond the control of Corillian.
2. FEES AND EXPENSES
The fees for support services provided pursuant to this Agreement ("Support
Fee") will be in accordance with the following schedule:
Commencement date through 15% of the license fees for Voyager and all
December 31, 2001 other applications, to be prorated as to
Components not delivered until after
January 1, 2001.
Thereafter, the annual base fee for support services shall be 15% of the license
fee for Voyager plus 15% of the fee for any Component (other than custom
engineering deliverables) delivered after January 1, 2001, plus 15% of the fee
for any additional product applications than those Products licensed under the
Agreement. In the event Client engages Corillian for additional custom
engineering services, and the Products so created are unique to Client, Client
shall pay an additional 15% of the fee for such additional custom engineering
services as an additional Support Fee. In the event Client engages Corillian for
additional custom engineering services, and Corillian and Client anticipate that
the Products so created will be incorporated into future Updates or New
Revisions of the Products, Client shall not pay any such additional Support Fee.
In addition to the base fee, Corillian reserves the right to increase the
support service fees on an annual basis by up to ten percent (10%). In the event
of any such increase, Corillian shall provide Client with notice of such
increase at least ninety days (90) prior to the expiration of the then current
term.
Support Fees shall be paid annually. The initial Support Fee shall be paid
effective January 1, 2001 within 30 days of receipt of invoice. Subsequent
annual payments shall be invoiced on or about January 1 and made within thirty
(30) days after receipt of invoice.
Corillian shall not provide on-site support services except to the extent that
on-site support services are required for resolution of a Priority 1 problem,
which shall be provided at no additional cost to Client. If on-site support
services are provided for other than Priority 1 problems, they will be provided
on-site only with Client's prior consent and will be billed to Client at
Corillian's then-current published rate plus reasonable expenses, including, but
not limited to, air travel, local transportation, hotel rooms and meal expenses.
3. DEFINITION OF PRIORITIES
When reporting a problem, Client shall indicate its priority according to the
following definitions:
PRIORITY 1: Critical: 1) The issue prevents an installed Product from
immediate production operation; or 2) The installed Product
repeatedly crashes or loses data; or 3) The installed Product
does not reliably complete transactions; or 4) The Product
cannot be installed at Client's site; 5) The Product does not
recover from errors properly; 6) The Product performance is
too slow to support the specific number of transactions; or 7)
The issue prevents a Product from performing as needed by the
Client or Client's customer.
PRIORITY 2: Medium: 1) The Product does not behave as documented; 2)
The documentation is in error, is unclear, or should be
expanded; 3) The required
PAGE 2
documentation is missing; or 4) The issue should be addressed,
but does not have significant impact on the Client or Client's
customer.
PRIORITY 3: Low: 1) Cosmetic changes and subjective preferences; 2) A
new feature will improve the Product's functionality,
usability, reliability, performance, or supportability; or
3) Functionality not related to the intent of the Product.
Client is responsible for ensuring that the priority it assigns to a problem
adheres to the foregoing definitions. Corillian reserves the right to
re-prioritize a problem report that is not reasonably consistent with these
definitions. If Corillian does so, Corillian shall so advise Client in writing
and shall cooperate with Client to come to an agreement on level of priority.
4. RESPONSE PROCEDURES AND SUPPORT LEVELS
Corillian's response is provided at multiple levels to best match the need of
the issues. Corillian will use the appropriate support level to focus attention
on the most critical issues first, and will cooperate with Client in coming to
agreement on which is the appropriate level of support for a given issue. The
following are the four levels of support:
LEVEL A: Onsite support for escalated issues that cannot be resolved
remotely.
LEVEL B: Seven (7) days a week, twenty four (24) hours per day
telephone support for Critical / Site Down issues. Response
time: 30 minutes.
LEVEL C: Standard telephone support hours 8:00 a.m. to 5:00 p.m.
Eastern Time, Monday through Friday for technical problems.
Response time: 4 business hours.
LEVEL D: E-mail support for general questions. Response time: 1
business day, although development of new features or
functions will be in Corillian's sole discretion.
Priority 1 problems shall be assigned to Levels A or B,
Priority 2 problems shall be assigned to Levels C or D,
Priority 3 problems shall be assigned to Level D.
5. REPORTING PROBLEMS AND SUPPORT CONTACTS
Corillian requires that Client designate a primary and secondary contact who
will be authorized to place support contacts.
To report a problem, the Client contact shall send a problem report via
electronic mail to the email address of xxxxxxx@xxxxxxxxx.xxx or, for Priority 1
or 2 problems, place a call to Corillian Support Services at 000-000-0000.
Client's report should contain Client's company name and the phone number and
email address of the person reporting the call; the priority level (in
accordance with the definitions provided above); the Product for which Client is
reporting a problem; and the platform on which the Product is installed. In the
event the Support Services telephone number is not manned 24 hours a day, seven
days a week, Corillian will provide Client with a phone number or pager number
for reporting Priority 1 problems 24 hours a day, seven days a week.
PAGE 3
6. SUPPORT HOURS
Corillian's standard telephone support and other support services are available
Monday through Friday, 8:00 AM to 5:00 PM Eastern Time, exclusive of Corillian
holidays. Additionally, Corillian will provide 24x7 support for Priority 1 and 2
level problems. Upon execution hereof, Corillian will provide Client with a
schedule of holidays and will notify Client in writing of subsequent changes in
such schedule, provided, however, that, at a minimum, Corillian will provide
such standard telephone support on all weekdays except Client holidays. The
standard telephone support, as well as all other support provided hereunder,
begins upon production release to Client's customers of any of the product
Components and entitles Client to product support seven days a week, twenty four
hours a day. Standard telephone support and all other support to which Client is
entitled shall also be provided during the ninety (90) day warranty period
described in section 6.1.2 of the Agreement, and performance standards set forth
in Section 9.2 hereof shall also apply during such period, as well as
thereafter. Telephone support services are limited to Corillian products and
Third Party Software. Corillian reserves the right to assess a fee of two
hundred fifty dollars ($250) per hour (with a one hour minimum) for Client's
requests for support for non-Corillian products.
7. EVENING, WEEKEND AND HOLIDAY SUPPORT SERVICES
If Client contacts the Corillian support services personnel outside of the
standard support hours (Monday through Friday, 8:00 AM to 5:00 PM ET) for other
than a Priority 1 or Priority 2 problem condition, Client agrees to pay
Corillian two hundred and fifty dollars ($250) per hour (with a one hour
minimum.)
8. ACTION PLANNING AND COMMUNICATION
In reference to any Priority 1 problem reports, Corillian will immediately use
its best efforts to restore the system to proper operation (if necessary) and,
within five (5) days of escalation, provide an action plan for a long term fix
for the issue. The action plan will include details on the nature of the fix and
the time frame of resolution. Corillian and Client acknowledge that under some
circumstances it may be most expedient for Corillian's support personnel to dial
in and directly access Client's computer facilities. Additionally, for problems
other than Priority 1 problems, for which such services are provided at no cost
pursuant to Section 2 above, Corillian may under some circumstances make support
personnel available for on-site work at Client's location (with Client's
approval), at an additional then-current cost as outlined in section 2 above.
Daily review of status throughout the entire process will be available to Client
through Corillian's normal technical support personnel.
9. CONTENT OF SUPPORT AND PRODUCT UPGRADES
9.1 In addition to the obligations set forth in Sections 1 through 8
hereof, in all situations involving a Priority 1 problem involving a
system outage, Corillian shall endeavor to restore the Product to
reliable production within four (4) hours after such problem is
reported to Corillian. Furthermore, in all situations involving
performance or non-performance of the Products, Corillian shall
endeavor to supply as soon as practicable code corrections as required
to enable the Products to perform the functions described in Exhibit 1
attached to the Product Schedule, including participation in the action
planning and communication activities set forth in Section 8 above. In
the event that Corillian is unable to make the Products operate as set
forth in Exhibit 1 within 60 days of notification of a problem, that
Client may exercise termination rights pursuant to Section 13.4 below,
provided, however, that the foregoing shall not apply to problems
attributable to or which Corillian is prevented from remedying as
required above because of (i) the acts or omissions of Client, Client's
customers, employees, consultants, contractors, or other third-party
vendors; (ii) interruption in data communication
PAGE 4
resulting from the acts or omissions of Client or a third party; (iii)
hardware or third-party software failures; or (iv) other causes beyond
the control of Corillian.
9.2 Corillian warrants that within 24 hours of notice of a Priority 1
problem that causes total systems unavailability of the Products,
Corillian shall restore systems availability of the Products. For the
first breach of this warranty during a support term, Corillian agrees
to provide Client with a rebate of $[ * ] to be applied against
prospective Support Fees. For any subsequent breach of this warranty
during a support term, Client may exercise termination rights pursuant
to Section 13.4 below. The foregoing warranty shall not apply to
Priority 1 problems attributable to or which Corillian is prevented
from restoring systems availability as required above because of (i)
the acts or omissions of Client, Client's customers, employees,
consultants, contractors, or other third-party vendors; (ii)
interruption in data communication resulting from the acts or omissions
of Client or a third party; (iii) hardware or third-party software
failures; or (iv) other causes beyond the control of Corillian.
9.3 During the term of this Agreement, Corillian shall provide Client with
any upgrades to any Product or custom engineering deliverable licensed
pursuant to the Agreements or any subsequent agreements between the
parties, at no additional charge excepting only reasonable charges for
media shipping, handling, and, if required, installation services.
Upgrades shall be furnished to the Client within thirty (30) calendar
days of their being made generally available. Client shall not be
required to install any upgrades which Corillian deems unnecessary to
Client's continued use of a Product or which shall not perform their
documented functionality. The term "upgrades" shall mean any and all
changes to a Product that (a) improve the operating performance but do
not materially alter the functions of the Product; (b) incorporate all
fixes or bypasses of known system errors; (c) that are required to
allow Client to continue to implement Xxxx Payment Processing in
accordance with Checkfree SIS specification; (d) are required to
support subsequent versions of OFX, or versions of IFX or XML, which
are required to support banking and xxxx pay transactions in subsequent
commercial releases of Microsoft Money-Registered Trademark- and
Quicken-Registered Trademark-. The term "upgrades" does not include
improvements in a Product that are other than the items set forth in
subsections (a) through (d) above and (i) add to or materially alter
the basic functions of the Product; or (ii) that may be offered to
Corillian's other customers for payment of additional or higher license
fees because of improvements to the Product. In the event Client has
licensed any custom engineering deliverable which is substantially
similar to a product generally released to and supported for
Corillian's other customers, and Corillian has provided an upgrade
with regard to such product, a similar upgrade will be provided to
Client hereunder.
9.4 During the term of this Agreement, upon written notice from Client,
Corillian shall provide Client with modifications to any of the
Products that are required to maintain the compliance of the Products
with or to allow the Products to contain the functionality to permit
Client to comply with all federal, state and local laws and regulations
applicable to the functionality of and services to be performed by the
Products. In the event that Corillian is required to make such
modifications for any other customer and offers such modifications to
the customer for no additional fee, then Corillian will provide such
modifications to Client for no additional fee. In all other cases,
Corillian agrees to provide Client with such
----------------------
* Portion has been omitted pursuant to a request for confidential
treatment and filed separately with the Commission.
PAGE 5
modifications in a timely manner so that Client may be in compliance
in accordance with the effective date of any new laws and regulations.
10. PRODUCT ADVISORY BOARD
Two representatives of Client will be invited to participate in quarterly
Product Advisory Board meetings at Corillian to discuss strategic product
development, upcoming product releases and co-marketing opportunities.
11. KNOWLEDGE TRANSFER AND TRAINING
In the event Client elects to receive Source Code pursuant to the Escrow
Agreement, Corillian will provide Client immediately upon release of the Source
Code from escrow in accordance with a mutually agreed to training program
knowledge transfer and training of the Source Code of the licensed Products to
include architecture overview, source code configuration review and major
component review. Client shall be entitled to the equivalent of four man weeks a
year of knowledge transfer and training for as long as Client receives support
services pursuant to this Support Schedule. In the event that Client terminates
this Support Services Schedule in connection with a request for release of the
Source Code from escrow, Corillian shall be obligated to provide only the
equivalent of four man weeks of knowledge transfer and training to be provided
immediately upon release of the Source Code from escrow. For any such on-site
training, Client agrees to pay Corillian's reasonable expenses, including, but
not limited to, air travel, local transportation, hotel rooms and meal expenses.
12. AVAILABILITY OF SUPPORT
12.1 Corillian agrees, either directly or through a subcontractor, to offer
support services hereunder, until at least December 31, 2006. Corillian
may assign or subcontract the services provided to Client pursuant to
this Support Schedule. Corillian shall provide Client with at least one
hundred eighty days notice of such proposed assignment or
subcontracting, so that Client may, in its sole discretion, determine
whether to exercise its right to receive Source Code and knowledge
transfer pursuant to Section 11 hereof and pursuant to the Escrow
Agreement. However, if Corillian, its successors or assignees fails,
for any reason whatsoever, to provide to Client, directly or through an
any third party contractor, the Product maintenance and support
services required to be provided by Corillian, or if such support
services are provided in such a manner that, by virtue of such failure,
Client is unable to make commercially reasonable beneficial use of the
Products, then Client may exercise termination rights pursuant to
Section 13.5 below.
12.2 Subject to its obligation to offer support services at least through
December 31, 2006, Corillian may terminate this Support Services
Schedule by providing Client with at least one hundred eighty (180)
days notice prior to the expiration of the then current term.
13. TERMINATION
13.1 In the event Client has not received Source Code pursuant to the terms
of the Escrow Agreement, Client may terminate this Support Services
Schedule by providing Corillian at least sixty (60) days notice prior
to the expiration of the then current term.
13.2 In the event Client has received Source Code pursuant to the terms of
the Escrow Agreement, and Client is not terminating pursuant to the
provisions of Section 13.3, 13.4 or 13.5 below, Client may terminate
this Support Services Schedule at any time by providing notice to
Corillian and paying an exit fee in accordance with the following
schedule:
PAGE 6
13.2.1 From the effective date above and for 18 months thereafter:
(a) If Client no longer utilizes the Products in any way,
then the exit fee shall equal $[ * ]
(b) If Client continues to utilize the Products, then the
exit fee shall equal $[ * ].
13.2.2 19 months--3 years from the effective date:
The exit fee shall equal $[ * ]
13.2.3 4 years--6 years from the effective date:
The exit fee shall equal the unamortized portion of the $[ * ].
Amortization begins in year 4 and is calculated using a three-year
straight line depreciation method.
13.2.4 After 6 years from the effective date above, Client may
terminate the Support Schedule prior to the end of the then
current term, continue to utilize the Products and pay no exit
fee..
13.3 In addition, regardless of whether Client has received the Source Code
pursuant to the terms of the Escrow Agreement, Client may terminate
this Support Services Schedule in accordance with the terms of Section
7 or 8 of the Product Schedule or Section 6.2.1, 11.2 or 11.3 or 15 of
the Agreement.
13.4 In addition, regardless of whether Client has received the Source Code
pursuant to the terms of the Escrow Agreement, Client may terminate
this Support Services Schedule at any time pursuant to the provisions
of Section of 9.1 or 9.2 hereof. In such case, Client may at its option
(i) discontinue use of the Products, terminate the License Agreement,
and cancel all obligations with respect to payment of custom
engineering and implementation fees not previously incurred prior to
notice of termination, together with refund of any license fees for
applications not previously accepted, terminate the Support Services
Schedule without payment of an exit fee and receive a pro-rata refund
of the Support Fees paid hereunder; (ii) continue to use the Products
with a reduction in the License Fee or Support Services Fee as the
parties mutually agree shall be fair and equitable or (iii) continue to
use the Products, terminate the Support Services Schedule, receive a
pro-rata refund of the Support Fees paid hereunder and pay Corillian an
exit fee of $[ * ] or the amount owing under Section 13.2 of the
Support Services Schedule, whichever is less and shall receive the
Source Code pursuant to the Escrow Agreement, including the knowledge
transfer obligation specified in Section 11 hereunder and thereunder.
In the event that Client has previously exercised its election to
receive the Source Code pursuant to the Escrow Agreement, Client shall
have the same three remedies available to it. With respect to option
(i), Client shall return to Corillian or certify the destruction of all
copies of the Source Code thereof within 30 days of notice of
termination and with regard to option (iii), regardless of whether
Client shall have previously exercised its election to receive the
Source Code, Corillian shall complete the knowledge transfer obligation
specified in Section 11 hereof and under the Escrow Agreement, if it
has not already done so, and until such completion shall continue to
provide problem resolution
---------------------
* Portion has been omitted pursuant to a request for confidential
treatment and filed separately with the Commission.
PAGE 7
services on a time and materials basis, and Client shall pay the exit
fee upon completion of knowledge transfer.
13.5 In addition, regardless of whether Client has received the Source Code
pursuant to the terms of the Escrow Agreement, Client may terminate
this Support Services Schedule at any time pursuant to Section 13.1
hereof. In such case, Client may, at its option,(i) discontinue use of
the Products, terminate the License Agreement, and cancel all
obligations with respect to payment of custom engineering and
implementation fees not previously incurred prior to notice of
termination,, together with refund of any license fees for applications
not previously accepted, and terminate the Support Services Schedule
without payment of an exit fee and receive a pro-rata refund of fees
paid hereunder; (ii) continue to use the Products with reductions in
the License Fee and Support Services Fee as the parties mutually agree
shall be fair and equitable, or (iii) continue to use the Products,
terminate the Support Services Schedule receive a pro-rata refund of
the Support Fees paid hereunder, receive the Source Code pursuant to
the Escrow Agreement, including knowledge transfer specified in Section
11 hereunder and thereunder. In the event that Client has previously
exercised its election to receive the Source Code pursuant to the
Escrow Agreement, Client shall have the same three remedies available
to it. With respect to option (i), Client shall return to Corillian or
certify the destruction of all copies of the Source Code thereof within
30 days of notice of termination and option (iii), regardless of
whether Client shall have previously exercised its election to receive
the Source Code, Corillian shall complete the knowledge transfer
obligation specified in Section 11 hereof, if it has not already done
so, and shall continue to provide problem resolution services on a time
and materials basis.
13.6 Notwithstanding Client's election to terminate the Support Services
Schedule and obtain Source Code pursuant to the provisions of the
Support Services Schedule and Source Code Escrow Agreements, Client may
use the Source Code so provided solely to maintain and support the
Products, modify, enhance, and upgrade the Products for license it has
purchased from Corillian in accordance with the terms of such license
so as to enable Client to make the use of the Products intended by the
Agreement. Client may not, under any circumstances, sell, disclose,
assign, transfer or convey in any manner, or dispose of the Source Code
or any portion thereof, except as otherwise provided in the Agreements.
Termination of support pursuant to this Section 13 does not in any way
affect Client's license rights to the Products as provided in the
Agreement.
Each Party represents that it has read this Support Services Schedule and
understands its provisions and that the person signing this Support Services
Schedule on behalf of such Party is authorized to do so.
Wachovia Operational Services Corporation Corillian Corporation
DATE: 12/22/99 DATE: 12/23/99
--------------------------------------- ----------------------
BY: /s/ BY: /s/ Xxxx Xxxxxx
----------------------------------------- ------------------------
Xxxx Xxxxxx, President
PAGE 8
EXHIBIT A
CORILLIAN CORPORATION
VOYAGER SOURCE CODE ESCROW AGREEMENT
Effective Date: December ____, 1999 Corillian Corporation
Wachovia Operational Services Corillian Corporation ("Corillian")
Corporation ("Client") 0000 XX Xxxxxx Xxxx., Xxxxx 000
000 X. 0-0/0 Xxxxxx Xxxxxxxxx, Xxxxxx 00000
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000 (503) 627-0729
FAX (000) 000-0000
Corillian, by its signature indicating acceptance hereof, grants to Client a
Voyager Source Code Escrow Account ("Account") with Datasafe, Inc. ("Escrow
Agent") as agreed to herein. Corillian and Client have entered into a Voyager
License Agreement (the "License Agreement") pursuant to which Corillian will
grant to Client during the term of said Agreement a non-exclusive,
non-transferable License to use a production copy of the products named on the
Voyager Product Schedule(s) as defined therein (such products collectively
referred to herein as the "Products.")
STANDARD TERMS AND CONDITIONS
1. ESCROW MATERIAL
The term "Escrow Material" as used in this Agreement means (i) the source code
of all of the Products, in such form that will allow Client to build and compile
usable object code, (ii) the similar source code version of any and all updates,
modifications, revisions, and enhancements to be delivered pursuant to the
Voyager License Agreement, as well as any other Products provided pursuant to
the Product Schedule of Support Services Schedule or otherwise pursuant to an
agreement with Client and (iii) any and all documentation developed by Corillian
or in its possession pertaining to the applicable source code. Without limiting
the generality of the foregoing, the "Escrow Material" shall include any
pertinent commentary or explanation that may be necessary to render the source
code understandable and useable by a trained computer-programming professional
who is generally familiar with C++/COM systems, although not necessarily those
incorporating the Products. The Escrow Material shall include system
documentation, statements of principles of operation, and schematics, all as
necessary or useful for the effective understanding and use of the source code.
Insofar as the "development environment" employed by Corillian for the
development, maintenance, and implementation of the source code includes any
device, programming or documentation not commercially available to the Client on
reasonable terms through readily known sources other than Corillian, the Escrow
Materials shall include all such devices, programming, or documentation. The
foregoing reference to the "development environment" is intended to apply to any
programs, including compilers, "workbenches", tools and higher-level (or
"proprietary") languages, used by Corillian for the development, maintenance and
implementation of the source code.
2. ADDITIONS TO ESCROW MATERIAL
If Corillian develops updates, modifications, revisions or enhancements of the
Products which are to be delivered by Corillian to Client pursuant to the
Voyager License Agreement or otherwise pursuant to an agreement with Client,
then the related source code shall constitute additional Escrow Material. Within
ten (10) business days after the release of such additional Escrow Material,
Corillian shall give written notice thereof to Client, describing in detail such
additional Escrow Material. Such additional
PAGE 1
Escrow Material shall be deposited with Escrow Agent as provided in Section 4
below. It is the intention of the parties that the Source Code deposited
hereunder shall correspond to the Products in use by Client.
3. INSPECTION
Client may appoint either (a) an independent firm of certified public
accountants of national reputation or (b) an independent, professional
computer-programming consultant mutually agreeable to Corillian and Client to
inspect, compile, test and review the source code (subject to appropriate
undertakings of confidentiality and restrictions on subsequent use and
disclosure) at any time, and Escrow Agent shall permit such inspections and
testing promptly upon request. Except as otherwise authorized by Corillian
(which authorization will not be unreasonably withheld), such inspections and
testing shall be conducted at the offices of the Escrow Agent designated in
Section 14..
4. DEPOSIT
Within ten (10) days after the release of any applicable Product, or whenever an
obligation shall arise under Section 2, Corillian shall deposit the relevant
Escrow Material with Escrow Agent. Escrow Agent shall issue to Corillian (with a
copy to Client) a receipt for the Escrow Material upon its delivery to Escrow
Agent.
5. STORAGE
Escrow Agent will accept the deposit of Escrow Material and will preserve and
protect the Escrow Material at Escrow Agent's offices designated in Section 14.
Escrow Agent shall prohibit any person (including employees of Corillian) from
gaining access to the Escrow Material except (a) as provided by the terms of
this Agreement, or (b) as otherwise directed by court order.
6. RESPONSIBILITIES
In performing its duties under this Agreement, Escrow Agent is authorized to
conclusively rely upon any statement, consent, agreement, or other instrument
not only as to its due execution, its validity, and the effectiveness of its
provisions, but also as to the truth and accuracy of any information contained
therein, which Escrow Agent shall in good faith believe to be genuine or to have
been presented or signed by a proper person or persons. Escrow Agent shall not
be responsible or liable for any promise, representation, agreement, condition,
or stipulation not set forth in this Agreement; for the sufficiency,
correctness, genuineness, or validity of any instruments or documents deposited
with Escrow Agent; for the form of execution thereof or the identity, authority,
or rights of any person executing the same; for the performance of or compliance
with the terms or conditions of any such instruments; for the maintenance of any
property covered by this Agreement (other than to provide reasonable care to
protect and safeguard the Escrow Materials), including, but not limited to,
payment of taxes, assessments, upkeep charges, or repair bills; for the
sufficiency or priority of any security or the value or title of any property;
for any loss which may occur by reason of forgeries, false representations, or
the exercise of Escrow Agent's judgment in any particular manner; or for any
other reason except Escrow Agent's negligence or intentional misconduct.
7. USEABILITY OF SOURCE CODE
Corillian represents and warrants that the Escrow Materials are and shall be
understandable and useable by a trained computer-programming professional who is
generally familiar with C++/COM systems, though not necessarily those
incorporating the Products. Corillian further represents and warrants that the
Products do not involve any proprietary languages or programming components that
such a professional could not reasonably be expected to understand, except to
the extent the Escrow
PAGE 2
Materials contains sufficient commentary to enable such professional to
understand and use such languages or components. Corillian further represents
and warrants that the Escrow Materials contain all of the devices, programming,
and documentation necessary for the maintenance of the Products by the Client
upon release of the Escrow Materials pursuant to this Agreement, except for
devices, programming and documentation commercially available to the Client on
reasonable terms through readily known sources other than the Licensor.
8. RIGHT TO ESCROW MATERIAL; USE OF ESCROW MATERIAL
Client shall be entitled to receive the Escrow Material upon
Client providing Escrow Agent and Corillian with written notice of its election
to obtain Escrow Materials. Escrow Agent shall deliver the Escrow Material to
Client within ten (10) business days following the date of its receipt of
Client's request.
9. USE
Upon release of the Escrow Materials hereunder, Client is granted, without any
further action, authorization or instrument, a non-exclusive, non-transferrable,
perpetual license in the Escrow Materials. Client may use the Escrow Material
provided under this Agreement to maintain and support the Products, and to
modify, enhance, and upgrade the Products and otherwise in accordance with the
terms of the License Agreement so as to enable Client to make the use of the
Products intended by the License Agreement. Client will not, under any
circumstances, sell, disclose, assign, transfer or convey in any manner, or
dispose of the Escrow Material or any portion of the Escrow Material, except as
may be permitted in the License Agreement. The parties intend and agree that
this Agreement is an "agreement supplementary to" the License Agreement as
provided in Section 365(n) of Title 11 U.S.C. (the "Bankruptcy Code") for all
purposes. Upon release of the Escrow Materials, the Escrow Materials shall be
considered to be "Products" for all purposes of the License Agreement.
10. KNOWLEDGE TRANSFER
Promptly upon any release of the Escrow Materials to Client by the Escrow Agent
for any reason hereunder, Corillian will provide Client with knowledge transfer
and training of the Escrow Materials of the Products, to include architecture
overview, source code configuration review and major component review. Client
shall be entitled to such knowledge transfer in accordance with the terms set
forth in the Support Services Schedule.
11. RELIANCE
Escrow Agent may conclusively rely upon and shall be protected, indemnified, and
held harmless by Client and Corillian, jointly and severally, in acting upon the
written (which shall include instructions given by telecopier or other
telecommunications device) instructions of any officer of either Corillian or
Client or of counsel to either of them with respect to any matter relating to
its actions as Escrow Agent under this Agreement, provided, however, that in the
event this Agreement requires instructions from both of the parties, Escrow
Agent shall be required to obtain such instructions from both parties. The
Escrow Agent shall comply with any such instructions, notwithstanding any demand
or notice to the contrary from any person, and is relieved from liability for
doing so.
12. INDEMNIFICATION
Client and Corillian, jointly and severally, covenant and agree to indemnify
Escrow Agent and hold it harmless (without prejudice to a determination between
Client and Corillian as to which party shall
PAGE 3
bear the ultimate responsibility) against any loss, liability, or expense
arising out of or in connection with its performance of its duties under this
Agreement, including, but not limited to, legal and other fees and expenses and
including specifically, but without limitation, any legal or other expenses with
respect to any action for interpleader by Escrow Agent, except that Escrow Agent
shall not be indemnified against any such loss, liability, or expense arising
out of its negligence or intentional misconduct. Escrow Agent shall be under no
obligation to institute or defend any action, suit, or legal proceeding in
connection with this Agreement, unless first indemnified and held harmless to
its satisfaction in accordance with the foregoing.
13. TERM OF AGREEMENT; TERMINATION
The term of this Agreement and the Account granted hereunder shall commence upon
acceptance of this Agreement by Corillian from the Effective Date above and
shall continue in effect until Corillian and Client shall both notify Escrow
Agent by notarized certificate, signed by an officer of both Corillian and
Client, that Corillian no longer has any obligations to Client requiring the
deposit of the Escrow Material in escrow, whereupon Escrow Agent shall destroy
the Escrow Material and provide acknowledgment thereof to Corillian.
14. NOTICES
All notices, reports, instructions, requests, and other communications given
under this Agreement shall be in writing and shall be deemed to have been given
or made (i) if by mail, when received by certified mail, postage prepaid, return
receipt requested; or (ii) if by facsimile, when sent by facsimile to the
facsimile number set forth below with evidence of receipt by sender or (iii) if
by courier, when received; provided, however, that either party may change its
address or facsimile number for notices by providing notice to the other party
or such change in the manner provided herein. Notices shall be directed to the
following addresses or facsimile numbers:
To Escrow Agent: Datasafe, Inc.
X.X. Xxx 00000
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Corillian: Corillian Corporation
0000 X.X. Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
To Client: Wachovia Operational Services Corporation
c/o Wachovia Bank, N.A.
000 X. Xxxxxx Xxxxxx
Xxxxxxx-Xxxxx, XX 00000
Attention: Digital Platform Manager
(Xxxxxx Xxxxxxxx)
15. DUTIES OF ESCROW AGENT
Escrow Agent shall have no duties or obligations except those expressly set
forth in this Agreement, and no implied duties or obligations shall be read into
this Agreement against Escrow Agent. Escrow Agent shall have no responsibilities
or liability to any of the parties or their successors for any action
PAGE 4
taken by it in good faith upon receipt of any instrument or other writing
believed by it to be genuine and to be properly signed or presented. In case any
property deposited under this Agreement shall be attached, garnished, or levied
upon pursuant to an order of court or other authority having jurisdiction, or
the delivery thereof shall be stayed or enjoined by an order of court, or any
other order, judgment, or decree shall be made or entered by any court affecting
such property or any part thereof (unless such order, judgment, or decree has
been stayed, pending appeal), Escrow Agent shall obey and comply with all final
writs, orders, judgments, or decrees so entered or issued by any court, without
the necessity of inquiry whether such court had jurisdiction. Upon receipt of
notice of an order, writ, judgment, or decree, Escrow Agent will transmit copies
of said writ and other process or pleading received to all parties, and shall
not comply with any writ, order, judgment, or decree until seven (7) days
following delivery of such copies to all parties if permitted under such
document.
16. EXPENSES
Corillian and Client shall each pay one-half of the fees and expenses to Escrow
Agent directly in accordance with Escrow Agent's fee schedule. The Escrow
Agent's fees and expenses will be paid annually in advance. Any costs incurred
by the Escrow Agent will be billed at the end of the month in which they are
incurred.
17. TAXES
Corillian and Client shall each be responsible for one-half of any federal,
state, excise, and local government fees, assessments, charges, and taxes
connected with this Agreement.
18. WITHDRAWAL OF ESCROW AGENT
Escrow Agent may resign on sixty (60) days written notice to each of the
parties. Thereafter, upon payment of all fees and costs earned or incurred by
Escrow Agent in connection with this Agreement, Escrow Agent shall deliver the
Escrow Material to a successor escrow agent named by Corillian and Client or, if
none, to the party named in written instructions from Corillian and Client. If a
successor escrow agent has not been appointed and has not accepted appointment
by the end of such sixty (60) day period, Corillian or Client may apply to a
court of competent jurisdiction for the appointment of a successor escrow agent
and the reasonable costs, expenses, and attorneys' fees of Escrow Agent that are
incurred in connection with such a proceeding shall be paid equally by Corillian
and Client.
19. SEVERABILITY
If any of the terms, conditions, or provisions of this Agreement shall be held
invalid, illegal, or unenforceable, then, notwithstanding, this Agreement shall
remain in full force and effect and the legality, validity, and enforceability
of the remaining terms, conditions, or provisions shall not be affected.
20. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of, and shall be binding upon, the
permitted successors and assigns of the parties.
21. HEADINGS
The headings of the sections and paragraphs of this Agreement are solely for
convenience of reference and are not part of and are not intended to define,
govern, limit, or aid in the construction of this Agreement.
PAGE 5
22. WAIVER
No failure or delay on the part of any party in exercising any right, power, or
remedy under this Agreement may be, or may be deemed to be, a waiver thereof;
nor may any single or partial exercise of any right, power, or remedy preclude
any other further exercise of any right, power or remedy.
23. ATTORNEYS' FEES
In the event of any dispute arising out of the subject matter of this Agreement,
the prevailing party shall recover, in addition to any other damages assessed,
its reasonable attorneys' fees and court costs incurred in arbitrating,
litigating, or otherwise settling or resolving such dispute.
24. GOVERNING LAW
The validity, construction and performance of this Agreement shall be governed
by the laws of the State of New York without reference to its choice of law
rules, except to the extent the same are preempted by the laws of the United
States of America.
25. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties on the subject
matter of this Agreement and no amendment, modification, or addition hereto
shall have effect or be binding unless in writing and executed by all of the
parties. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be one and the same instrument.
UNDERSTOOD AND ACCEPTED:
Client: Corillian:
Wachovia Operational Services Corporation CORILLIAN CORPORATION
DATE: 12/22/99 DATE: 12/23/99
------------------------------------ ---------------------
BY: /s/ BY: /s/ Xxxx Xxxxxx
-------------------------------------- -----------------------
Xxxx Xxxxxx, President
Escrow Agent:
DATASAFE, INC.
DATE:
------------------------------------
BY:
-----------------------------------------
Authorized Signature
-----------------------------------------
Printed Name and Title
PAGE 6
