EXHIBIT 10.25
LICENSE, SERVICES, AND PURCHASE AGREEMENT
BETWEEN
ASSOCIATED SOFTWARE CONSULTANTS, INC.
AND
Pan American Bank, FSB
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a(n) California Corporation ("Customer")
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VARIABLE TERMS OF THE AGREEMENT:
1. Notice Information:
If intended for ASC, to: If intended for Customer, to:
ASSOCIATED SOFTWARE CONSULTANTS, INC. PAN AMERICAN BANK, FSB
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0000 XXXXX XXXX, XXXXX 000 1300 SOUTH EL CAMINO REAL, SUITE 320
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XXXXXXXXXX XXXXXXX, XX 00000 XXX XXXXX, XX 00000-0000
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CONTACT: XXXX XXXXXXX, PRESIDENT CONTACT: XX. XXXXXX X. XXXXXX
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TELEPHONE: (000) 000-0000 TELEPHONE: (000) 000-0000
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2. Applicable Attached Parts:
ASC INITIALS: CUSTOMER INITIALS:
N/A N/A
__________ Part B Beta Test Software (with Exhibit B) ________
N/A N/A
__________ Part C Custom Software (with Exhibit C, Exhibit P) ________
__________ Part L Software License (with Exhibit L) ________
__________ Part E System Support (with Exhibit A, Exhibit E) ________
__________ Part S Service (with Exhibit S, Exhibit P) ________
__________ Part H Hardware Purchase (with Exhibit H) ________
__________ Part G General Terms and Conditions ________
3. Number of Pages in this Agreement including attached Exhibits: *twenty-six*
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BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE READ AND FULLY UNDERSTAND THIS AGREEMENT
AND HEREBY AGREE TO THE TERMS HEREOF. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT NO
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE
REGARDING THE GOODS AND SERVICES TO BE PROVIDED HEREUNDER, AND THAT CUSTOMER HAS
NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT HEREIN.
SIGNED for and on behalf of ASC: SIGNED for and on behalf of Customer:
By: /s/ XXXXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
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Print Name: Xxxxxxx X. Xxxxxx Print Name: Xxxxxx Xxxxxx
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Title: Vice President Title: EVP
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Date: 12/30/96 Date: 12/20/96
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Part L -- SOFTWARE LICENSE
1. DEFINITIONS
1.1 "Licensed Software." Computer programs in machine executable form
only and related documentation and data files, as described in the Software
License Order attached hereto as Exhibit L, together with any additional
software modules that may be licensed in the future under Section 2.2 below.
1.2 "Licensee Premises." The office space and other facilities occupied
by Customer at the location shown on the attached Software License Order.
1.3 "Computer System." The combination of a single central processing
unit ("CPU") and its monitor, input device(s), output device(s), and auxiliary
storage device(s).
1.4 "LAN." A limited-distance distributed processing network that
comprises the CPUs, monitors, input devices, output devices, storage devices,
communications facilities, and other components thereof, and which is situated
wholly within Licensee Premises."
1.5 "Authorized Operating System(s)." The operating system(s) specified
on the attached Software License Order.
1.6 "Authorized Use." Use of the Licensed Software on a single Computer
System or LAN, on no more than the maximum number of workstations on the
Authorized Operating System(s) specified on the Software License Order, only for
purposes of processing Customer's own internal data (and not on a timeshared or
service bureau basis), only by Customer personnel, and only on Customer premises
or on computer hardware owned by Customer. Authorized Use shall include the
generation and preparation of reports for Customer and its affiliates, provided
that such activities are in strict compliance with the foregoing.
1.7 "Proprietary Rights." All rights in and to copyrights, rights to
register copyrights, trade secrets, inventions, patents, patent rights,
trademarks, trademark rights, confidential and proprietary information protected
under contract or otherwise under law, and other similar rights or interests in
intellectual or industrial property.
1.8 "Effective Date." The date specified on the attached Software License
Order.
2. GRANT OF LICENSE
2.1 Licensed Software. Customer recognizes that the license fee paid
hereunder for the Licensed Software does not fully reimburse ASC for ASC's total
expense in developing the Licensed Software. Accordingly, as of the Effective
Date and subject to the terms and conditions hereof, ASC hereby grants to the
Customer, and Customer hereby accepts, a non-exclusive license to use the
Licensed Software and the Proprietary Rights embodied therein, only for purposes
of the Authorized Use. Customer shall not have the right to relicense or sell
the Licensed Software or to transfer or assign the Licensed Software, except as
expressly provided herein.
2.2 Additional Authorized Use. Licensee may increase the scope of the
Authorized Use by purchasing additional license rights from ASC for additional
Computer Systems, additional LANs, or additional workstations on a licensed
Computer System or LAN, and such additional Authorized Use shall be governed by
the terms and conditions hereof. Customer agrees that, absent ASC's express
written acceptance thereof, the terms and conditions contained in any purchase
order or other document issued by Customer to ASC for the purchase of rights for
additional Authorized Use shall not be binding on ASC to the extent that such
terms and conditions are in addition to, or inconsistent with, the terms and
conditions contained in this Agreement.
2.3 Substitutions and Modifications By ASC. ASC reserves the right to
make substitutions and/or modifications to the Licensed Software, providing that
such substitutions or modifications will not materially affect the performance
thereof.
2.4 Requests for Modifications By Customer. ASC will consider requests
from Customer for modifications to the Licensed Software, but ASC is under no
obligation to develop any such modifications. ASC reserves the right to charge
additional license fees and/or development fees for any modification to the
Licensed
Software. Such modifications shall automatically become a part of the Licensed
Software and subject to the terms and conditions of this Agreement.
2.5 Installation and Acceptance. ASC shall install the Licensed Software
at Customer's premises at a mutually agreed-upon time, which date shall be
considered the "date of software acceptance" for the purposes of this Agreement.
ASC shall demonstrate that the Licensed Software conforms to ASC's accompanying
documentation, whereupon Customer shall be deemed to have accepted the Licensed
Software.
2.6 Payment. Software license fees for the Licensed Software shall be
paid by Customer as follows:
2.6.1 One-Time License Fees. The total software license fee for the
Licensed Software requires the payment of one-time license fees, as shown in the
attached Software License Order. A non-refundable deposit of twenty percent
(20%) of the one-time software license fees for the Licensed Software is due
immediately upon the signing of this Agreement by Customer, and the deposit will
be credited to the total one-time license fee for the Licensed Software. The
final payment of one-time license fees for the Licensed Software shall be due
and payable on the date of software acceptance pursuant to Section 2.5 hereof.
2.6.2 Ongoing License Fees. In addition to the one-time license fees
indicated above, and only if indicated in the attached Software License Order,
the total software license fee for the Licensed Software also includes ongoing
license fees, which shall be paid by Customer to ASC according to the payment
schedule shown therein.
2.7 Ownership. Customer shall not acquire title to the Licensed Software.
Customer's only interest in the Licensed Software is that of a licensee under
this Agreement. Except for certain portions of the Licensed Software that are
owned by third parties and which are sublicensed herein, title to the
Proprietary Rights embodied in the Licensed Software shall remain in and be the
sole and exclusive property of ASC.
2.8 Copying. Customer is authorized to make no more than three (3) back-
up copies of the computer programs and data files that comprise the Licensed
Software. Except for such back-up copies, Customer shall not copy, duplicate,
or print the Licensed Software including the accompanying documentation, in
whole or in part, without the prior written consent of ASC.
2.9 Modification; Disassembly. Customer shall not modify, disassemble, or
decompile the Licensed Software for any purpose.
2.10 Proprietary Notices. Customer shall not alter, change or remove any
proprietary notices or confidentiality legends placed on or contained within the
Licensed Software. Customer shall include such notices and legends in all
copies of any part of the Licensed Software made pursuant to this Agreement.
2.11 Right of Access by ASC. Customer shall provide the necessary
passwords and protocols to permit ASC to access the Licensed Software by modem
for purposes of providing technical support services and/or for determining
whether the Licensed Software is being used in accordance with the terms and
conditions hereof.
2.12 Notice of Infringement; Misappropriation. In the event either party
becomes aware of any action that may infringe or misappropriate the Proprietary
Rights of the other party, such party shall promptly notify the other party of
such action.
2.13 No Encumbrances. Customer shall keep the Licensed Software free and
clear of all claims, liens, and encumbrances.
2.14 Reserved Rights. All rights not expressly granted to Customer herein
are expressly reserved by ASC.
3. TERM AND TERMINATION
3.1 License Term. The license for the Licensed Software shall commence
upon the Effective Date, and continue in perpetuity unless terminated as
provided herein.
3.2 Termination for Convenience. Customer may terminate the license for
the Licensed Software by giving thirty (30) days written notice to ASC.
3.3 Obligations Upon Expiration or Termination. Upon the termination
hereof, Customer shall immediately cease all use of the Licensed Software and
otherwise cease exercise of all other rights granted herein. Customer shall
within ten (10) days of termination, return all existing copies of the Licensed
Software to ASC and certify to ASC that all copies or partial copies of same
have been returned or destroyed.
4. CONFIDENTIALITY
4.1 Licensed Software. Customer acknowledges ASC's claim that the
Licensed Software embodies valuable trade secrets proprietary to ASC. Customer
shall use the Licensed Software only for purposes authorized herein. Customer
shall safeguard the confidentiality of the Licensed Software, using at least
reasonable care. Such care shall include, but not be limited to, taking
reasonable precautions to ensure that (i) the Licensed Software is made
available only to Customer's employees, and (ii) Customer and its employees do
not make unauthorized use, disclosure, or transfer of the Licensed Software.
4.2 Customer Information. All Customer information submitted to ASC or
prepared for or in connection with the performance of this Agreement that is
marked "confidential" or "proprietary" shall be held in confidence by ASC and
shall not, without the prior written consent of Customer, be disclosed or be
used for any purposes other than the performance of this Agreement. ASC shall
safeguard the confidentiality of such Customer information, using at least
reasonable care.
5. WARRANTIES AND LIMITATION OF LIABILITY
5.1 Limited Warranty for the Licensed Software. For a period commencing
with the date of software acceptance and continuing for a period of ninety (90)
days, ASC warrants that the Licensed Software (i) will conform to all material
operational features and performance characteristics of the accompanying
documentation supplied by ASC, and (ii) will be free of errors and defects that
materially affect the performance of such features; provided, however, that (i)
the Licensed Software is implemented and operated in accordance with all written
instructions supplied by ASC, (ii) Customer notifies ASC in writing of such
nonconformity, error, or defect within ten (10) days of the appearance thereof,
and (iii) Customer has promptly and properly installed all corrections and
updates made available by ASC to Customer. If Customer notifies ASC in writing
in a timely manner of any such nonconformity, error, or defect, ASC shall at its
sole and exclusive option repair or replace the Licensed Software. THE REMEDIES
SET OUT IN THIS SECTION 5.1 ARE THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF
THE WARRANTY PROVIDED. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND
CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. ASC DOES
NOT WARRANT THAT THE LICENSED SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS, THAT
THE LICENSED SOFTWARE WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT
FOR USE, THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR
ERROR-FREE, OR THAT ALL LICENSED SOFTWARE ERRORS WILL BE CORRECTED.
5.2 Warranty Exclusions. Notwithstanding any other provisions of this
Agreement to the contrary, the limited warranty provided in Section 5.1 shall
not apply to nonconformities, errors, or defects due to any of the following:
(i) misuse of the Licensed Software, (ii) modification of the Licensed Software
by Customer, (iii) failure by Customer to utilize compatible computer and
networking hardware and software, (iv) interaction with software or firmware not
provided by ASC, or (v) any change in applicable operating system software.
5.3 Warranty Disclaimer for Licensed Software. EXCEPT FOR THE LIMITED
WARRANTY PROVIDED ABOVE, TO THE EXTENT ALLOWED BY LAW, ASC HEREBY DISCLAIMS ALL
WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES RESPECTING
MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO
NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT
APPLY TO CUSTOMER.
5.4 Proprietary Rights Warranty and Indemnification. ASC represents and
warrants that ASC has the authority to license the rights to the Licensed
Software that are granted herein. ASC shall defend, indemnify, and hold
Customer harmless from any final award of costs and damages against Customer for
any action based on (i) the lack of right or authority to license the Licensed
Software, or (ii) infringement of any U.S. copyright, trade secret, or patent
known to ASC as a result of the use of a current copy of the Licensed Software,
unmodified by Customer; provided, however, that ASC is promptly notified in
writing of any such suit or claim, and further provided
that Customer permits ASC to defend, compromise, or settle same, and provides
all available information and reasonable assistance to enable ASC to do so. The
foregoing is exclusive and states the entire liability of ASC with respect to
infringements or misappropriation of any Proprietary Rights by the Licensed
Software.
5.5 Limitation of Damages. ASC'S ENTIRE LIABILITY FOR MONEY DAMAGES
ARISING OUT OF THIS AGREEMENT AND/OR THE LICENSING OF THE LICENSED SOFTWARE
SHALL BE LIMITED TO LICENSE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT, AND IF
SUCH DAMAGES ARISE OUT OF CUSTOMER'S USE OF THE LICENSED SOFTWARE OR SERVICES
PROVIDED HEREUNDER SUCH LIABILITY SHALL BE LIMITED TO THE FEES PAID FOR THE
RELEVANT PORTION OF THE LICENSED SOFTWARE OR SERVICES GIVING RISE TO THE
LIABILITY PRORATED OVER A FIVE (5) YEAR TERM FROM THE EFFECTIVE DATE OF THIS
AGREEMENT.
5.6 Disclaimer of Incidental and Consequential Damages. IN NO EVENT SHALL
ASC BE LIABLE TO CUSTOMER UNDER ANY THEORY INCLUDING CONTRACT AND TORT
(INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) FOR ANY INDIRECT, SPECIAL OR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, DAMAGES FOR LOSS OF DATA, LOSS OF
USE OF COMPUTER HARDWARE, DOWNTIME, LOSS OF GOODWILL, LOSS OF BUSINESS OR
COMPUTER HARDWARE MALFUNCTION, EVEN IF ASC HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY
NOT APPLY TO CUSTOMER.
5.7 Limitation on Actions. No action, regardless of form, arising out of
or relating to this Agreement may be brought by either party more than one (1)
year after the cause of action has occurred.
5.8 Allocation of Risks. This Agreement allocates fairly between ASC and
Customer the risks of defects in, or failure of, the Licensed Software. This
allocation is the result of negotiation between the parties, is accepted by both
parties, and is reflected in the pricing for the Licensed Software, other fees
payable, the limited warranties provided, the limited remedies provided, the
disclaimer of liability for certain damages including without limitation,
incidental and consequential damages, the limitation of liability, and the
limitation on actions. The parties hereby stipulate that in any proceeding
regarding any dispute under this Agreement, all of these provisions should be
recognized and enforced.
Part E -- SYSTEM SUPPORT
1. DEFINITIONS
1.1 "Supported Software." Computer programs in machine executable form
only and related documentation and data files, as described in the System
Support Order which is attached hereto as Exhibit E.
2. SERVICES RENDERED
ASC will support the Supported Software shown in the System Support Order,
subject to the terms and conditions of the System Support Agreement, which is
attached hereto as Exhibit A.
3. SERVICES EXCLUDED
Services which are not provided by way of this Part E of this Agreement
include, but are not limited to, those services shown in the attached System
Support Agreement.
4. TERM
ASC will provide system support for one (1) "contract" year beginning on
the date of software acceptance (per Section 2.5 of Part L) for the Supported
Software. Unless Customer provides written notice thirty (30) or more days
prior to the expiration of the then current contract year, system support shall
be automatically renewed at the then current fee. ASC must provide Customer
written notice sixty (60) or more days prior to the expiration of the then
current contract year in order to terminate system support, or in order to
change system support fees.
5. FEE PAYMENT TERMS
Payment for system support shall be due and payable four times each year,
in advance, as shown in the System Support Order. The first payment shall be an
amount prorated from the date of software acceptance to the end of the same
calendar quarter, so that all subsequent payments will coincide with calendar
quarters. System support fees are in addition to any software license fees
required by ASC to authorize Customer use of Supported Software.
Part S -- SERVICE
1. SERVICES
Customer shall receive the services of ASC in areas Customer shall
designate and in which ASC has expertise, including those items shown in the
Service Order which is attached hereto as Exhibit S. ASC shall extend its best
professional effort in the performance of same.
2. PRICE
Customer shall pay ASC, as compensation for services performed and expenses
incurred, according to its then current Professional Rate Schedule, a current
copy of which is shown in Exhibit P of this Agreement. All charges, rate
classifications and minimum hours are subject to change by ASC upon thirty (30)
days notice to Customer. Customer will be invoiced from time to time by ASC for
services rendered and expenses incurred to date, at which time such payment is
considered due and payable.
3. DEPOSIT
If applicable, a one-time service deposit in the amount shown in the
attached Service Order shall be due and payable upon the execution of this
Agreement, and will be credited to the billing for services rendered and
expenses incurred upon the completion of said services or expenses.
4. REPORTING
ASC shall provide Customer with a written summary of the findings gathered
and/or the services rendered during the term of this Agreement. Complete
payment for services rendered shall be due and payable upon tender of such
summary to Customer.
5. USE
ASC retains all ownership and marketing rights to all programs, data files,
technical information, specifications, reports, drawings, models, and other
software developed hereunder. By this Agreement, Customer obtains only the non-
exclusive right to use the software developed hereunder. Customer hereby agrees
not to make copies of this information without the express written consent of an
authorized officer of ASC, unless said copies are for backup purposes only. It
is further specifically agreed that Customer may not sell, lease, transfer,
sublicense and/or license any programs, data files, technical information,
specifications, reports, drawings, models, and/or the like to any third party
without prior written consent from an officer of ASC.
Part H -- HARDWARE PURCHASE
1. DEFINITIONS
"Hardware." The computer hardware and/or third-party (non-ASC) software as
described in the Hardware Purchase Order which is attached hereto as Exhibit H.
2. PRICE
The purchase price for the Hardware shall be as specified in the attached
Hardware Purchase Order.
3. TERMS OF SHIPMENT
All Hardware will be shipped F.O.B. ASC's loading dock, with shipping
charges and transit insurance to be paid by Customer. ASC reserves the right to
make partial shipments, in which case each shipment shall be a separate
transaction and payment will be made accordingly. Settlement of all claims will
be made on the basis of repair or replacement at ASC's option.
4. HARDWARE INSTALLATION AND ACCEPTANCE
The date on which the Hardware is shipped by ASC to Customer shall be
considered the "date of Hardware acceptance" for the purposes of this Agreement.
Customer shall be responsible for the installation of each item of Hardware in
the Customer specified location.
5. PAYMENT
A deposit of twenty percent (20%) of the Hardware purchase price is due and
payable immediately upon the signing of this Agreement by Customer, and will be
credited to the purchase price of the Hardware. In the event Customer cancels
any unshipped Hardware, ASC shall retain the Hardware deposit as liquidated
damages. Final payment for the Hardware shall be due and payable on the date of
Hardware acceptance.
6. SECURITY INTEREST
Customer hereby grants to ASC a security interest in all Hardware to secure
all Customer Hardware and other payment obligations hereunder. Upon demand by
ASC, Customer agrees to immediately execute any security agreement, financing
statement, applications for registration and/or other documents evidencing such
security interest in a form satisfactory for filing with the appropriate
government authorities. Customer agrees to take any other action deemed
necessary by ASC in order to perfect ASC's security interest hereunder. ASC
agrees to terminate its security interest in the Hardware when all Customer
payments required hereunder have been made.
7. WARRANTIES AND LIMITATION OF LIABILITY
7.1 No Warranty. THE HARDWARE IS PROVIDED "AS-IS," AND WITHOUT ANY
WARRANTY OF ANY KIND FROM ASC. ALL WARRANTIES BOTH EXPRESS AND IMPLIED, ARE
HEREBY DISCLAIMED INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.2 Limitation of Liability. ASC ASSUMES NO LIABILITY REGARDING THE
HARDWARE. CUSTOMER AGREES TO LOOK SOLELY TO THE MANUFACTURER(S) OF THE HARDWARE
FOR SATISFACTION REGARDING THE HARDWARE. ASC SHALL PASS-THROUGH ANY WARRANTIES
REGARDING THE HARDWARE THAT ARE PROVIDED BY HARDWARE MANUFACTURER(S).
7.3 Disclaimer of Incidental and Consequential Damages. IN NO EVENT SHALL
ASC BE LIABLE TO CUSTOMER UNDER ANY THEORY INCLUDING CONTRACT AND TORT
(INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) FOR ANY INDIRECT, SPECIAL OR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, DAMAGES FOR LOSS OF DATA, LOSS OF
USE OF COMPUTER HARDWARE, DOWNTIME, LOSS OF GOODWILL, LOSS OF BUSINESS OR
COMPUTER HARDWARE MALFUNCTION, EVEN IF ASC HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY
NOT APPLY TO CUSTOMER.
8. HARDWARE MAINTENANCE
Each manufacturer reserves the right to determine whether or not
maintenance will be provided to each installation. Customer is solely
responsible for securing maintenance services for Hardware.
Part G -- GENERAL TERMS AND CONDITIONS
1. ASC EXPENSES
Unless otherwise specifically stated in this Agreement, charges for all
products delivered and services rendered are exclusive of any incidental
expenses which may be incurred by ASC. Customer shall reimburse ASC for all
usual and ordinary expenses, including but not limited to travel, hotel
accommodations, meals, tips, telephone, local transportation, parking, supplies,
data media, shipping charges, insurance and the like, incurred by ASC in the
course of performance of its duties under the terms of this Agreement. All
expenses shall be justified as actually and necessarily expended in connection
with products and/or services acquired by Customer under the terms of this
Agreement, and evidenced by receipts or other documentation upon request by
Customer.
2. ACCESS TO CUSTOMER
Customer agrees to designate one person satisfactory to ASC to represent
Customer and to coordinate materials and personnel during the term of this
Agreement. Customer shall allow ASC access to sufficient competent source
personnel and any source materials necessary to carry out its obligations, which
source materials shall remain the property of Customer. ASC shall regard any
Customer source data it receives as confidential, and will not make Customer
source materials available to third parties without the prior written consent of
Customer.
3. ACCESS TO CUSTOMER PREMISES
Customer agrees to provide ASC sufficient space at Customer premises during
normal working hours so that ASC may carry out its obligations under the terms
and conditions of this Agreement. Customer also agrees that ASC personnel may
enter Customer premises periodically with prior notice to Customer to inspect
the Licensed Software and the hardware on which the Licensed Software is
installed, for the purposes of testing, modifying, updating, monitoring
confidentiality and the like. Further, Customer agrees to allow ASC to
demonstrate the Licensed Software installed on Customer computer at Customer
premises from time to time, provided that ASC shall provide reasonable prior
notice to Customer, and that said demonstration shall take place at times which
will not unreasonably interfere with Customer use of ASC products and services.
4. ACCESS TO ASC
ASC agrees to designate one person satisfactory to Customer to represent
ASC and to help coordinate materials and personnel during the term of this
Agreement. ASC shall assign its personnel to fulfill its obligations under the
terms of this Agreement consistent with the best interest of Customer and with
the then current availability of ASC and/or subcontractor personnel. ASC shall
endeavor at all times to perform in a timely manner. However, ASC shall not be
liable for non-performance or delays due to fire, strike, lockout, governmental
order or regulation, delay in transportation, delay by manufacturer, or any
other cause which is beyond the reasonable control of ASC.
5. TAXES
All charges are exclusive of all federal, state, municipal, or other
political subdivision, excise, sales, use, property, occupational, or like taxes
now in force or enacted in the future, and are therefore subject to an increase
equal in the amount of any such tax ASC may be required to collect or pay upon
the sale or delivery of the products or service purchased or licensed hereunder.
If a certificate of exemption or similar document or proceeding is to be made in
order to exempt the transaction from any tax liability, Customer will provide
ASC such certificate or document or initiate such proceeding. Customer shall
not be responsible for payment of taxes based on ASC net income.
6. PAYMENT TERMS
Unless otherwise notified by ASC, Customer will make all payments directly
to ASC. If Customer fails to pay any charge within thirty (30) days of when
said charge becomes due and payable, it agrees that ASC will have the right to
invoice and Customer will pay a late payment charge of the lesser of (i) one and
one-half percent (1.5%) of the outstanding balance per month, or (ii) the
maximum interest rate allowed at law. If delivery of any ASC product or service
is delayed by Customer, payment shall become due and payable from the date when
ASC is prepared to make delivery. In the event of such delay, ASC shall be free
to invoice Customer, and Customer agrees to pay for any additional expenses
incurred by ASC, including but not limited to increased costs of labor,
materials, equipment, and the like. Products held for Customer because of such
delay by Customer shall be at the risk and expense of Customer. Customer shall
reimburse ASC for all costs and expenses, including reasonable attorney's fees
incurred by ASC to enforce collection of any monies due from Customer. Payments
may be made by a third party leasing company with written permission of ASC,
whose permission will not be unreasonably withheld.
7. TERMINATION
This Agreement shall terminate immediately and automatically upon the
occurrence of any one of the following: (i) Customer assigns this Agreement or
any of its rights hereunder without the prior written consent of ASC, or (ii) if
any assignment is made of Customer business for the benefit of creditors, or if
a receiver, trustee in bankruptcy or similar officer is appointed to take charge
of all or part of Customer property, or if Customer is adjudicated a bankrupt.
Further, ASC shall have the right to terminate this Agreement if Customer shall
neglect or fail to perform any of its obligations to ASC, including but not
limited to the timely payment of license fees and any other sums due ASC, and
said Customer breach remains uncured for thirty (30) days after written notice
from ASC of said breach. The obligations and remedies of the parties regarding
proprietary rights and confidentiality which are set forth in this Agreement
shall survive termination or expiration of this Agreement.
8. MERGER
This Agreement, and any specified attachment, or exhibits attached,
constitute the entire agreement between ASC and Customer. All promises,
representations, understandings, and agreements with respect to the subject
matter hereof, and inducements to the making of this Agreement relied upon by
either party, have been expressed herein, and may be altered, amended, modified
only in writing executed by the parties hereto.
9. JURISDICTION
This Agreement shall be interpreted and enforced pursuant to the laws of
the State of Ohio. In the event any party retains legal counsel to enforce any
of the provisions of this Agreement, the party against whom judgment is made
agrees to pay all reasonable costs and attorney's fees and expenses, including
but not limited to costs, fees, and expenses of collecting such judgment.
10. ARBITRATION
Any dispute or question arising hereunder which the parties are unable to
settle between themselves shall be submitted to binding arbitration according to
the rules of the American Arbitration Association as then established and
practiced in Cleveland, Ohio. Judgment upon any award made in such arbitration
may be entered and enforced in any court of competent jurisdiction.
11. SEVERABILITY
If any term, covenant, condition or provision, or portion thereof, of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions of this Agreement shall be in full force
and effect and shall in no way be affected, impaired or invalidated.
12. ASSIGNMENT
This Agreement shall inure to the benefit of, and be binding upon, any
successor to all, or substantially all, of the business and assets of such
party, whether by merger, sale of assets, or other agreements or operation of
law. Except as provided herein, neither party shall assign this Agreement or
any right or interest under this Agreement, nor delegate any work or obligation
to be performed under this Agreement, without the other party's prior written
consent. Any attempted assignment or delegation in contravention of this
Section shall be void and ineffective.
13. NO IMPLIED WAIVERS
The failure of either party to enforce at any time any of the provisions
hereof shall not be a waiver of such provision, or any other provision, or of
the right of such party thereafter to enforce any provision hereof.
14. FORCE MAJEURE
Neither party shall be liable for damages for any delay or failure of
delivery arising out of causes beyond their reasonable control and without their
fault or negligence, including, but not limited to, Acts of God, acts of civil
or military authority, fires, riots, wars, or embargoes.
ADDENDUM
This Addendum, entered into on this 20th day of December, 1996, amends the
License, Services, and Purchase Agreement ("the Agreement") of even date
herewith made by and between Pan American Bank, FSB ("Customer"), and Associated
Software Consultants, Inc. ("ASC"). All terms of the Agreement remain in full
force and effect and this Addendum serves to modify the Agreement only as shown
herein. Where the terms of this Addendum conflict with the terms of the
Agreement, the terms of this Addendum supersede the terms of the Agreement.
Part L -- Software License
A) Delete "ninety (90) days" from Section 5.l and replace it with the
following:
"one (1) year"
B) Delete "not provided by ASC" from Section 5.2 and replace it with the
following:
"not provided or approved by ASC"
C) Delete Section 5.4 in its entirety and replace it with the following:
"5.4 Proprietary Rights Warranty and Indemnification. ASC represents and
warrants that ASC has the authority to license the rights to the Licensed
Software that are granted herein. ASC shall defend, indemnify, and hold
Customer harmless from any final award of costs and damages against
Customer for any action based on (i) the lack of right or authority to
license the Licensed Software, or (ii) infringement of any copyright, trade
secret, or patent as a result of the use of a current copy of the Licensed
Software, unmodified by Customer (however Customer may use the Licensed
Software to modify the contents of associated data files). ASC's
performance of the above shall be at ASC's expense. The foregoing is
provided that ASC is promptly notified in writing of any such suit or
claim, and further provided that Customer permits ASC to defend,
compromise, or settle same, and provides all available information and
reasonable assistance to enable ASC to do so. The foregoing is exclusive
and states the entire liability of ASC with respect to infringements or
misappropriation of any Proprietary Rights by the Licensed Software."
D) Delete Section 5.5 in its entirety and replace it with the following:
"5.5 Limitation of Damages. ASC'S ENTIRE LIABILITY FOR MONEY DAMAGES
ARISING OUT OF THIS AGREEMENT AND/OR THE LICENSING OF THE LICENSED SOFTWARE
SHALL BE LIMITED TO THE LICENSE AND OTHER FEES PAID BY CUSTOMER UNDER THIS
AGREEMENT."
(cont'd on next page)
(Addendum, Page Two of Two)
Part G -- General Terms and Conditions
A) Delete the last sentence of Section 3 and replace it with the following:
"Further, ASC desires to demonstrate the Licensed Software installed on
Customer computer at Customer premises from time to time. Customer is
solely authorized to permit such demos, but will not unreasonably withhold
its permission. Further, Such demonstrations shall take place at times
which will not unreasonably interfere with Customer use of ASC products and
services."
B) Delete the first sentence of Section 7 and replace it with the following:
"This Agreement shall terminate immediately and automatically if any
assignment is made of Customer business for the benefit of Creditors, or if
a receiver, trustee in bankruptcy or similar officer is appointed to take
charge of all or part of Customer property, or if Customer is adjudicated a
bankrupt."
ALL PARTIES ACKNOWLEDGE THAT THEY HAVE READ AND FULLY UNDERSTAND THIS ADDENDUM
AND HEREBY AGREE TO THE TERMS HEREOF.
for Customer: for ASC:
Pan American Bank, FSB Associated Software Consultants, Inc.
/s/ XXXXXX XXXXXX /s/ XXXXXXX X. XXXXXX
________________________________ ___________________________________
Xxxxxxx X. Xxxxxx, Vice President
Xxxxxx Xxxxxx/EVP
________________________________
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