[S1 LOGO]
S1, INC ENTERPRISE LICENSE AND SERVICES AGREEMENT
PREPARED FOR: 1ST COLONIAL NATIONAL BANK
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$ 109mm TOTAL ASSETS
Contract #
This S1, Inc. Enterprise License and Services Agreement including the
incorporated Schedules ("Agreement") is effective the 16th day of October, 2003
("Effective Date"), and is made by and between S1, Inc. (including its
subsidiaries and affiliates), a Kentucky corporation, having a place of business
at 0000 Xxxxx Xxxx X.X., Xxxxx 000, Xxxxxxx, XX 00000 XXX, ("Licensor"), and 1st
Colonial National Bank, a federally chartered financial institution with
offices at 0000 Xxxxxx Xxx., Xxxxxxxxxxxx, XX 00000 ("Licensee") , on behalf of
itself and its affiliates ("Affiliates") listed in Schedule C ("Licensee" or
"Client"). In consideration of the mutual covenants made and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, Licensor and Licensee hereby agree to the terms hereof.
The Agreement includes the following Schedules:
Schedule A: S1 License and Services Terms
Schedule B: Licensed Products, Professional Services, Maintenance/Support, and Fees
Schedule C: Licensee Affiliates, Designated Locations
Schedule D: Intentionally Omitted
Schedule E: Intentionally Omitted
Schedule F: Customer Center Terms and Conditions
NOTICES: All legal notices under this Agreement shall be deemed sufficiently
given if delivered in person or when sent via internationally recognized air
courier, fees pre-paid by sender, with a copy via facsimile, to the addresses
below. Notices shall be deemed given at presentment, if in person, and three (3)
business days after deposited with the courier.
FOR S1: FOR LICENSEE:
S1, Inc. 1st Colonial National Bank
0000 Xxxxx Xxxx, Xxxxx 000 0000 Xxxxxx Xxx.,
Xxxxxxx, Xxxxxxx 00000 XXX Xxxxxxxxxxxx, XX 00000
Attn: General Counsel Attn: Xxxxx Xxxxx
cc: Legal Department cc:
BILLING ADDRESS:
1st Colonial National Bank
0000 Xxxxxx Xxx.,
Xxxxxxxxxxxx, XX 00000
Attn:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
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SCHEDULE A - LICENSE AND SERVICE TERMS
S1, INC. LICENSEE
By: /s/ Jace Day By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------- -----------------------------
Name: Jace Day Name: Xxxxx X. Xxxxxxxxxx
Title: General Manager Title: Executive Vice President
Date: November 26, 2003 Date: November 26, 2003
THIS LICENSE AND SERVICES AGREEMENT CONSTITUTES AN OFFER BY LICENSEE UNTIL
EXECUTED BY AN AUTHORIZED S1 REPRESENTATIVE
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SCHEDULE A - LICENSE AND SERVICE TERMS
GENERALLY. The Licensee has, in executing the Agreement, agreed to "License and
Service Terms" (Schedule A); obtain certain "Hosting Services (Schedule A-1) and
"Professional Services (Schedule A-2); Fees Schedule (Schedule B); Licensee
Affiliates and Designated Locations (Schedule C) Customer Center Terms and
Conditions (Schedule "F"). Together, these Schedules (together with referenced
sub-schedules and Work Orders) constitute a single, integrated Agreement.
1. DEFINITIONS
1.1 CUSTOMER. A party to whom Licensee provides products and services.
1.2 DELIVERABLES. Work product developed for Licensee hereunder and owned
by Licensor. Unless agreed in writing otherwise by the parties,
Licensee's use of any Deliverable is subject to the license
restrictions set forth in Section 2 of this Agreement.
1.3 DESIGNATED LOCATION(S). Installation site(s) set forth on SCHEDULE C
where Licensee uses the Licensed Products. If the Designated Location
is owned or controlled by a third party, Licensee shall ensure that the
third party is bound by the terms of this Agreement, uses the Licensed
Products only for the benefit of the Licensee as authorized under this
Agreement, and assumes full responsibility for any violations of the
terms and conditions of this Agreement committed or caused by such
third party. Further, in such event, Licensee releases Licensor from
liability for any failure of Licensor to perform its obligations
hereunder that is caused by any act or failure to act of such third
party.
1.4 LICENSED PRODUCTS. Licensed Products include Licensed Programs, Third
Party Software, and Documentation (including documentation for
Education Services). "Licensed Programs" include Licensor's software
modules including Updates, but exclude Third Party Software.
"Documentation" refers to the on-line and printed materials provided to
Licensee by Licensor related to the Licensed Products and Third Party
Services and may be identified as User Documentation and/or Reference
Documentation. "Third Party Software" includes software programs and
related documentation owned or developed by a third party that Licensor
has the right and authority to sublicense and are sublicensed to
Licensee as described herein solely for Licensee's internal use in
connection with the Licensed Programs, and subject to the applicable
additional terms and conditions, if any, as set forth in SCHEDULE D.
The terms and conditions of SCHEDULE D shall supersede and control any
conflicting provisions elsewhere in this Agreement.
1.5 UPDATES. Licensed Product releases that Licensor provides generally to
its licensees that have paid the applicable support fees for the
relevant period. Updates exclude software programs Licensor designates
as new products. A "Major Release" has substantial architectural
changes and/or significant new functionality. A "Minor Release" has
minimal architectural changes and/or minimal new functionality.
1.6 SERVICES. Subject to payment of the applicable fees, Services that may
be provided by Licensor, or by a third party designated by Licensor,
include: 1) Professional Services, i.e. standard implementation
services and/or non-standard professional services related to enabling
the operation of the Licensed Programs or Deliverables, provided at
Licensor's then current rates and as may be outlined in a written work
order executed by the parties ("Work Order"), 2) Education Services as
set forth herein or otherwise agreed upon by the parties and as may be
outlined in a Work Order, 3) Support Services as described in Section 7
below, and 4) Hosting Services, if applicable, as described in SCHEDULE
A-1. Additional terms and conditions applicable to Licensor's
performance of the Services described above are set forth in SCHEDULE
A-2.
2. GRANT OF LICENSE
2.1 SCOPE OF LICENSE. (A) If Licensee has paid a License Fee for the
Licensed Products and subject to the terms and conditions of this
Agreement, Licensor grants Licensee for itself and on behalf of its
Affiliates, a non-exclusive, non-transferable (except as otherwise
provided in this Agreement) license (in object code or executable code
form only) to use, publicly perform and display the Licensed Products
and listed on SCHEDULE B, solely for Licensee's internal use at the
Designated Location(s). Licensee may change Designated Location(s),
subject to Licensor's prior approval, which shall not be unreasonably
withheld.
(B) Notwithstanding anything to the contrary in this Section 2, for
those Licensed Products listed on SCHEDULE B which are hosted in the
Licensor's data center and for which Licensee has not paid a License
Fee, subject to the terms and conditions of this Agreement, Licensor
grants to Licensee for itself and on behalf of its Affiliates a
non-transferable, non-exclusive license to access and use (and to
permit Customers to access and use) the Licensed Products solely as
hosted in the Licensor's data center and solely for Licensee's internal
use (and Customers' personal use). Licensee shall have no right to
obtain a copy of the software code for the Licensed Products in any
form.
(C) Licensee may distribute relevant non-confidential portions of
the User Documentation to Customers. Upon addition of software programs
by written amendment to this Agreement, such new products shall be
deemed Licensed Products. If Licensee or an Affiliate acquires another
entity, such entity's use of Licensed Products and any Deliverable is
subject to written amendment of this Agreement and payment of
applicable Fees. Licensee will reproduce and include, without
alteration, any proprietary notices that shall be linked with
customized screens as required by Licensor, including those displayed
in an "About" page or the equivalent thereof. Licensee acknowledges
that the branding of the Licensed Program screens does not create in
Licensee any right, title or interest in or to such screens. Licensor
reserves all rights in the Licensed Products not expressly granted to
Licensee in this Agreement.
2.2 PROHIBITED ACTIONS. Licensee will not, and will not permit any third
party to: (i) distribute, license or otherwise transfer the Licensed
Products; (ii) use, rent or lease the Licensed Products to provide or
allow the provision of services for third parties who are not
Customers; (iii) modify or create derivative works of the Licensed
Products. Licensee will not export or re-export the Licensed Products
outside the country of initial installation except as authorized by
this Agreement and applicable regulations.
2.3 LICENSED PROGRAMS DATA INTERFACE(S). Licensor will provide a standard
interface ("Interface") between the Licensed Programs and Licensee's
related third party data processing system(s) ("Licensee System(s)") in
accordance with this Section 2.3. All Interfaces licensed hereunder are
identified on SCHEDULE B. Licensee is responsible, at Licensee's sole
expense, for providing to Licensor all Licensee System technical
specifications and documentation, subject to third party
confidentiality requirements, necessary to enable Licensor to develop
and support the Interfaces. Subject to Licensee's payment of the
applicable support fees, in the event that Licensee is required by a
Licensee System vendor to upgrade a Licensee System to the vendor's
most recent commercially available release, Licensor shall, upon
written notification from Licensee, determine in Licensor's sole
discretion, whether such upgrade to the Licensee System materially
affects the performance of the Licensed Programs and the timeline for
implementation of any modifications to the Interface. Any other changes
to the Interface(s) or custom interface development requested by
Licensee are at Licensor's sole option and subject to a Work Order and
any applicable services, license, support or other fees set forth
therein. Licensee must provide commercially reasonable notice, but in
no event less than thirty (30) days, to Licensor of any requested
changes to the Interface.
2.4 CUSTOMIZATION. Licensor may, in its sole discretion, provide
customization to the Licensed Programs, at the request of Licensee.
Customization to the Licensed Programs will be outlined in a Work Order
and will be subject to applicable license and support fees.
3. PROPRIETARY RIGHTS
3.1 INTELLECTUAL PROPERTY RIGHTS. The Licensed Products include patents,
copyrights, software rights and database rights and trade secrets of
Licensor and its suppliers. The license granted does not give Licensee
any right, title or interest therein other than the license expressly
granted. Except as authorized by law, Licensee shall not, and shall not
permit any third party to, disassemble, decompile or reverse engineer
the Licensed Products. Licensee shall not remove, obliterate, and/or
alter (via any means) the content or presentation of any proprietary
notice except as authorized by this Agreement. Licensor will retain
ownership of its proprietary information and data.
3.2 INFRINGEMENT. Licensee will promptly notify Licensor if Licensee learns
of a violation of any Licensor intellectual property right. Licensor
may, but will not be obligated to, prosecute such violation at its
expense and to retain the full amount of any sums recovered as damages.
Licensee will provide Licensor with reasonable cooperation in any such
action at Licensor's expense.
4. IMPLEMENTATION SERVICES. If applicable, implementation services shall
be provided by Licensor or Licensor's designee and outlined in a Work
Order. In that event, Licensee shall designate one or more technical
representatives to be available during implementation of the Licensed
Products.
5. EDUCATION SERVICES. Licensor shall provide Licensor's standard
Education Services for the Licensed Programs, as further described in
SCHEDULE B, subject to payment of the applicable fees as set forth in
SCHEDULE B. The standard Educational Services are provided via WebEx
and will include ten hours of training. Any non-standard Education
Services, including on-site visits by Licensor personnel, shall be
subject to additional fees and agreed to by the parties and outlined
in a Work Order, Schedule or amendment hereto.
6. THIRD PARTY SERVICES. Subject to Licensee's payment of the applicable
fees, Licensee may use the Licensed Programs in combination with the
"Third Party Services" purchased by Licensee on a pass-through basis
through Licensor as
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described herein. If Licensee opts to purchase Third Party Services,
such fees shall be set forth in SCHEDULE B and Licensor may pass
through to Licensee any increases, additions to or modifications in the
fees charged to Licensor for such services. Licensee shall be
responsible for all telecommunication line charges related to
Licensee's use of the Third Party Services. All Third Party Services
provided by S1 hereunder shall be provided in substantial conformance
in all material respects with the applicable Documentation and
applicable state and federal regulation. Licensee may use the Licensed
Products for the purpose of supporting internet-based xxxx payment
services and/or xxxx presentment services in conjunction with
third-party providers with whom Licensor has a current Interface.
Internet-based Account Aggregation Services are available subject to
the additional terms set forth in SCHEDULE E.
7. SUPPORT SERVICES. Subject to Licensee's payment of the applicable
Annual Support Fees, Licensor shall provide Support Services in
accordance with this Section 7. Licensor's support obligations are
further described in the Support Guide, as amended by Licensor from
time to time. If Licensor amends its Support Guide in such a manner as
to render the Support Services commercially useless, Licensee will
provide written notice to Licensor detailing how the amendment to the
Support Guide has rendered the Support Services commercially useless.
In order for the Support Services to be deemed commercially useless,
Licensor will have to have received similar notices from a majority of
its licensees receiving Support Services that such Support Services
have been rendered commercially useless as a result of the amendment to
the Support Services Guide. If Licensor has also received similar
notices from licensees concerning the commercial uselessness of its
Support Services that resulted from an amendment of the Support Guide,
Licensee may terminate the Support Services upon ninety (90) days
written notice. If Licensee provides such notice of termination as set
forth in the preceding sentence, Licensee understands such termination
will be ineffective if Licensor has not received similar notices
concerning the uselessness of its Support Services from a majority of
its licensees using such Support Services, and Licensor will provide
Licensee notice that its termination is ineffective. Licensor shall use
reasonable diligence to correct verifiable and reproducible failures of
the Licensed Programs to substantially conform in all material respects
to the applicable documentation ("Errors"). Licensor has no obligation
for Errors resulting from Licensee's misuse, damage, or combination of
the Licensed Programs with any hardware or software not supplied or
expressly identified as compatible by Licensor. Licensor's Support
Services with regard to any Third Party Software are further described
in the applicable Documentation. Licensee shall also be eligible to
receive Updates as they are released by Licensor generally to its other
licensees. Licensee must maintain a "Current Version" of the Licensed
Programs and be current in its payments of applicable support fees to
be eligible for Support Services. A Current Version is defined as the
most current generally available release of the Licensed Program and
the immediately preceding release. If the current release is a Major
Release, Licensor will provide Support Services for the immediately
preceding release for twelve (12) months from the date the current
release is generally available. If the current release is a Minor
Release, Licensor will provide Support Services for the immediately
preceding release for (six) 6 months from the date the current release
is generally available. Subject to the payment of applicable support
fees, for the S1 IBS, Cash Management System and S1 Voice Banking
System, Major and Minor Releases will not require Licensee to pay
additional license fees; however, such Major and Minor Releases may
require Licensee to pay additional implementation fees.
8. SOURCE CODE ESCROW. Licensor has entered into a software source code
escrow agreement whereby Licensor is obligated to provide the escrow
agent with a copy of the current version of the source code for the
Licensed Programs (the "Source Code"). Upon the occurrence of certain
events as described in such escrow agreement, Licensee may request the
escrow agent to release to Licensee a copy of the Source Code. Licensee
shall have upon such delivery without the necessity of further action a
paid-up, non-exclusive, non-transferable license to use the Source Code
solely for the purpose of maintaining the Licensed Programs'
functionality as of the time Licensee receives such Source Code.
Licensee's license to the Source Code shall be governed by the terms of
this Agreement. The Source Code is Confidential Information as defined
in Section 15 in this Agreement.
9. PAYMENTS. Invoices are due and payable upon receipt. License fees and
other related fees are outlined in SCHEDULE B and are non-refundable.
Licensee will pay all Service fees, and related travel and other
reasonable out-of-pocket expenses incurred by Licensor; provided,
however, that upon Licensee's written request, Licensor shall
substantiate all such expenses by providing receipts for such expenses.
Travel and other reasonable out-of-pocket expenses is not intended to
include travel and related expenses to Licensor's site. Fees for
products and services not listed in SCHEDULE B are at S1's standard
rates or as otherwise set forth in an applicable Schedule or Work
Order. Fees and expenses are exclusive of Federal, state or local,
import, usage, value-added, withholding or other governmental taxes,
duties, fees, excises or tariffs ("taxes"). Licensee is responsible for
and will reimburse Licensor for all such taxes. Amounts not paid within
30 days of receipt are subject to an additional fee of 1.5% per month
or the maximum allowed under applicable law. All invoices are
designated and payment is due in US Dollars.
10. RECORD KEEPING AND AUDIT RIGHTS. During the term of the Agreement and
for three years after any termination, Licensee's business records
relating strictly to Licensee's use of the Licensed Products which will
be used to calculate fees due Licensor may be examined on reasonable
notice during normal business hours by Licensor. Licensee will
immediately reimburse Licensor for any delinquent fees and late fees.
If Licensee's payments are less than 95% of the fees due as determined
by the audit, the cost of the audit shall be borne by Licensee. Such
examinations shall not be conducted more than once in any calendar
year.
11. INTELLECTUAL PROPERTY CLAIMS
11.1 Licensor will defend Licensee against a claim that the Licensed
Products infringe a patent or copyright enforceable in the United
States and owned by an unaffiliated third party, and pay any judgment
or settlement relating to such claim. Licensor shall have no obligation
to Licensee to the extent such claim is caused by Licensee's (i)
modification of the Licensed Products, (ii) failure to use the Current
Version or other corrections or enhancements made available to
Licensee, (iii) use of the Licensed Products in combination with any
product or information not supplied by Licensor if such infringement
would have been avoided by using the Licensed Products alone or (iv)
requirements for modification or customization of the Licensed Products
as implemented by Licensor.
11.2 If an injunction is issued against the use of the Licensed Product by
Licensee due to a covered infringement, or if in Licensor's judgment
any Licensed Product is likely to become the subject of a successful
claim of infringement, Licensor may at its option and expense: (i)
procure for Licensee the right to use the Licensed Product as provided
in this Agreement, (ii) replace or modify the Licensed Product so it
becomes non-infringing, or if options (i) and (ii) are not available
despite Licensor's commercially reasonable efforts, (iii) terminate the
licenses granted hereunder, accept the return of all copies of the
Licensed Product in Licensee's possession and refund to Licensee an
amount equal to the depreciated License Fee paid by Licensee calculated
over a three year life. The remedies under this Section 11 are
Licensee's sole and exclusive remedy in the event of any infringement
of third party rights by the Licensed Product or other materials or
services furnished by Licensor or the use thereof by Licensee or
Customers.
11.3 The foregoing obligations are subject to Licensee (i) giving Licensor
prompt written notice of any claim for which defense is sought; (ii)
giving Licensor sole control and conduct of the defense of the claim;
and (iii) fully cooperating in the defense or settlement of any such
claim.
12. TERMINATION
12.1 TERMINATION FOR CAUSE. Upon written notice, either party may terminate
this Agreement or a Schedule if the other party materially breaches
this Agreement or the Schedule and has not cured that breach within 30
days after receipt of notice thereof. In the event that the Licensed
Products are completely non-operational for a period of seven (7)
consecutive days and such malfunction is solely due to Licensor's
fault, Licensee may terminate this Agreement upon five (5) business
day's notice. In the event of termination pursuant to this section, all
payments for Services rendered shall become immediately due and
payable.
12.2 GENERAL OBLIGATIONS. On Agreement termination, Licensee shall
discontinue use of the Licensed Products and return all Licensed
Products and any and all other Confidential Information to Licensor,
or, at Licensor's option, destroy such materials, including all copies
or partial copies thereof.
12.3 TERMINATION OF SUPPORT. Either party may terminate support services
after the initial support term listed in SCHEDULE B by providing
written notice ninety (90) days prior to an anniversary date of the
support term.
13. WARRANTIES AND DISCLAIMER
13.1 Licensor warrants the Licensed Products to Licensee for period of
ninety (90) days from: (i) the date of installation as determined by
Licensor and as further explained in the Statement of Work or Project
Milestones set forth in applicable Work Orders for Licensed Products
that have a related Work Order; (ii) delivery when there is no
applicable Work Order related to the Licensed Products; and (iii) the
date the revised production build is made available to Licensee for
Customer Center, the Licensed Products will perform in substantial
conformance in all material respects with the applicable Documentation.
Licensee's remedies in the event of a warranty claim, are that Licensor
will: 1) use reasonable commercial efforts to repair or replace the
affected portion of the Licensed Products, 2) provide a work around
solution that is substantially similar in all material functional
respects to the Licensed Products or 3) provide replacement Licensed
Products.
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13.2 Licensee represents and warrants that it has the corporate power and
authority to bind each Affiliate to the terms and conditions of this
Agreement. Licensee shall be jointly and severally liable for the
liabilities of any Affiliate arising under or related to this
Agreement.
13.3 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION
13, LICENSOR EXPRESSLY DISCLAIMS, AND LICENSEE WAIVES, ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS. LICENSOR DOES NOT WARRANT THAT THE LICENSED
PRODUCTS WILL MEET LICENSEE OR CUSTOMER REQUIREMENTS, THAT USE THEREOF
WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL PROGRAM ERRORS WILL BE
CORRECTED.
14. LIMITATION OF LIABILITY
14.1 LIMITATIONS AND EXCLUSIONS. NEITHER LICENSOR NOR ITS THIRD PARTY
SUPPLIERS WILL BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR ANY
INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY
DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS, LOSS OF
BUSINESS OR LOSS OF DATA OR ITS USE), WHETHER IN CONTRACT, TORT OR
OTHERWISE, AND REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. In addition, neither Licensor nor its
third party suppliers will be liable for (i) any damages or expenses
incurred by Licensee to the extent caused by Licensee's negligence or
willful act or omission, or (ii) processing or other errors or delays
due to inaccurate or incomplete information provided to Licensor or
Licensor's suppliers.
14.2 MAXIMUM LIABILITY. EXCEPT FOR DIRECT DAMAGES ARISING OUT CLAIMS OF
LICENSOR'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BREACH OF
CONFIDENTIALITY, PERSONAL INJURY OR DEATH, OR DAMAGE TO REAL OR
TANGIBLE PERSONAL PROPERTY, LICENSOR'S TOTAL LIABILITY, WHETHER IN
CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES ACTUALLY
PAID TO LICENSOR UNDER THIS AGREEMENT WITH RESPECT TO THE COMPONENT OR
SERVICE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD
PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
15. CONFIDENTIALITY
15.1 Each party may gain access to confidential information belonging to the
other party, its Affiliates and Customers, including but not limited
to, (i) the Licensed Products, and (ii) business, financial and
technological information (collectively, "Confidential Information"),
which Confidential Information constitutes and shall constitute
valuable assets and trade secrets. When a party ("Receiving Party")
receives Confidential Information from the other party ("Owning Party")
the Receiving Party shall, both during and after the term of this
Agreement, (i) not disclose Confidential Information received except to
the Receiving Party's employees and Affiliates on a need-to-know basis,
and as authorized under this Agreement, and (ii) not make use of any
Confidential Information received for its own purposes or for the
benefit of any third party except as authorized by this Agreement. The
parties' duty regarding Confidential Information shall not apply when
disclosure is made pursuant to any law or regulation, or the order or
request of a court or agency, provided in the event of a "request" for
such Confidential Information by a court or agency, the Disclosing
Party has obtained the written consent of the court or agency to
maintain the confidentiality of such Confidential Information.
15.2 IDENTIFICATION AND NONDISCLOSURE. Confidential Information will be
properly identified on reproductions to third parties, and shall be
safeguarded and used only in accordance with this Agreement. Each party
covenants not to divulge Confidential Information without obtaining a
nondisclosure agreement from any recipient, wherein such party
undertakes to handle Confidential Information pursuant to terms and
conditions of the scope specified in Section 15.1 of this Agreement.
15.3 EXCEPTIONS. These Section 15 obligations will not apply to information
that (i) is in the public domain, (ii) comes into the public domain
through no fault of the Receiving Party; (iii) is already known without
restriction by the Receiving Party at the time of receipt; (iv) is
available to the Receiving Party from a third party not under an
obligation of confidence with respect to such information; (v) is known
or developed independently of the disclosure by the Owning Party; or
(vi) is required to be disclosed by a government agency, by court
order, or by law.
15.4 RETURN OF PROPRIETARY INFORMATION; SURVIVAL UPON TERMINATION. On
Agreement termination, or on Owning Party's demand, Receiving Party
will promptly return all Owning Party Confidential Information, or
certify to Owning Party that all such Confidential Information has been
destroyed. The obligations of confidentiality set forth in this Section
15 shall survive Agreement termination.
15.5 XXXXX-XXXXX XXXXXX ACT. The applicable provisions of the Xxxxx-Xxxxx
Bliley Act (15 USC Sections 6801-6810) will apply to the use and
disclosure of information hereunder.The applicable provisions of the
Xxxxx-Xxxxx Xxxxxx Act and its implementing regulations will apply to
the access, use and safeguard of Nonpublic Personal Information and
other Confidential Information."
16. GOVERNMENTAL EXAMINATIONS
16.1 COOPERATION. The parties are subject to examination and audit by
government and quasi-government agencies. Licensee acknowledges that
certain federal and state agencies may require access to facilities of
Licensee to audit the performance of the services by Licensee through
use of the Licensed Products pursuant to this Agreement or the nature
of certain transactions conducted by Licensee, and Licensee will
cooperate with respect to all such governmental audits. Unless
prohibited by valid order, each party will promptly notify the other of
any formal request by a governmental agency to examine records
pertaining to the other party or its customers. Each party authorizes
the other to fully cooperate with any such examination, and such
cooperation will not be a breach of this Agreement.
16.2 BANK SERVICE CORPORATION ACT. Licensor is subject to periodic
examination by the United States Federal Banking Regulators pursuant to
Section 1867(c)(1) of the . Bank Service Company Act
17. NON-SOLICITATION. During the existence of this Agreement, and for six
(6) months thereafter, Licensee shall refrain from directly soliciting
for employment any of the employees or contractors of Licensor.
18. DISPUTE RESOLUTION. Except as provided below, no civil action with
respect to any dispute, controversy or claim arising out of or relating
to this Agreement may be commenced until the parties have attempted and
failed to resolve the dispute in accordance with the following
procedures. A party raising a dispute will provide the other party
written notification describing the factual basis for the dispute. The
parties shall attempt in good faith to resolve the dispute by
negotiations between senior executives who have authority to settle the
matter. All negotiations are confidential and shall be treated as
compromise and settlement negotiations under the United States Federal
Rules of Evidence. If the parties have failed to resolve the dispute
within 30 days after the date of notification, the parties shall
jointly select a qualified and impartial mediator and attempt in good
faith to resolve the matter through mediation within 60 days after the
date of notification. Nothing in the foregoing shall limit either party
from applying to a court of competent jurisdiction for interim measures
including injunctions, attachments and conservation orders in
appropriate circumstances, which measures the parties agree may be
immediately enforced by court order, and the parties agree that seeking
and obtaining such measures shall not waive the right to negotiation
and MEDIATION.
19. MISCELLANEOUS. No amendment or modification of this Agreement shall be
valid unless in writing and duly executed by both parties. Neither this
Agreement nor any rights hereunder are assignable by Licensee, whether
by merger, acquisition, sale of assets, operation of law, or otherwise,
without the prior written consent of Licensor, which consent shall not
be unreasonably withheld. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement will be governed by
the laws of Delaware, exclusive of any choice of law rules. Any action
hereunder shall be brought exclusively in the Georgia state or Federal
Courts of the Northern District of Georgia, Atlanta Division. The UN
Convention on the International Sale of Goods shall not apply. The
parties acknowledge that each has participated equally in the
negotiation and drafting of this Agreement. The parties are independent
contractors and nothing herein shall be deemed to create a partnership
or joint venture. This Agreement, including all Schedules, is the
entire agreement between the parties, supersedes all prior
representations and communications and may only be modified by a signed
written instrument. To the extent that provision set forth in any other
Schedule conflicts with a provision of this SCHEDULE A, the conflicting
provision of the other Schedule shall supersede and control. Neither
party shall be liable to the other for any loss or damage due to delay
or failure to perform due to any event outside of the respective
party's reasonable control. This Agreement is entered into for the sole
benefit of the parties hereto, and no other person or entity shall have
any right of action hereon, right to claim any right or benefit from
the terms contained herein or be deemed a third party beneficiary
hereunder. No delay or failure in exercising any right or privilege
will be construed as a waiver of any default. No waiver shall be valid
against a party unless written and signed by the party against whom
enforcement is sought. This Agreement is expressly declared to be
severable. Those provisions, which by their terms and sense are
intended to survive the termination of this Agreement, shall so
survive.
Page 5 of 16
SCHEDULE A - 1
HOSTING SERVICES
1. GENERAL
1.1 HOSTING SERVICES. Subject to Licensee's payment of the applicable fees
set forth in SCHEDULE B ("DATA PROCESSING FEES"), Licensor will provide
Licensee, on a non-exclusive basis, the Hosting Services through which Licensee
and Licensee's Customers shall use the Licensed Programs as hosted in the
Licensor Data Center, subject to the terms of this SCHEDULE A-1.
1.2 SERVICE DESCRIPTION. Hosting Services include the following:
(a) Operations. Licensor will operate and provide on a day-to-day
basis and in accordance with standard industry practices, hosting of the
Licensed Programs, and management of the hardware and equipment included in the
Data Center for Licensee's non-exclusive use during the term of this Schedule.
Licensor will provide facilities management services of the Data Center
including power, HVAC, asset control, physical security, and emergency power, as
well as "Batch Processing," "Data Backup," "Data Network Management," "Capacity
Management," "Security Monitoring" and disaster recovery services as hereinafter
described
(b) Batch Processing. Production batch processing jobs of
Licensee's properly formatted batch files, including, e.g. data base extract,
file send, file receive, and data base update jobs, in accordance with mutually
agreed batch schedule transfers. Batch processing is limited to 1 job cycle per
day governed by federal bank holidays. Real-Time processing is available if
Licensee has licensed and paid for the appropriate Real-Time Interface from
Licensor.
(c) Data Backup. Maintaining, updating and executing commercially
reasonable data file back-up procedures.
(d) Data Network Management, Planning and Monitoring. Data network
(from point of Licensee's telecommunication connection at the S1 Data Center)
management, planning, and monitoring, including (i) maintaining network control,
monitoring, and reporting; and (ii) managing and coordinating third party
vendors that provide network services.
(e) Capacity Management. Capacity management services, including
server resources, disk and data network.
(f) Performance Management. Daily monitoring and monthly reporting
to Licensee of performance statistics for availability, response time, and batch
cycle duration.
(g) Upgrades. Licensor will apply commercially available upgrades
and patches to the Data Center equipment subject to prior notification of
Licensee and accordance with Licensor's Change Management Policy, as such policy
is amended from time to time.
(h) Security Monitoring. Monitoring and reporting to Licensee of
attempted unauthorized access. In the event that Licensor reasonably believes
that any Licensee Customer data has been disclosed to an unauthorized person as
a result of a penetration or other compromise of Data Center security, Licensor
will use commercially reasonable efforts to immediately notify Licensee, in
accordance with Licensor's then-current Information Security Policy, of the
existence and extent (if known) of such disclosure; however Licensor may delay
such notification to the extent notification may impede any related criminal
investigation. In addition, Licensor will generally inform Licensee of the
efforts made to address such disclosure, provided that Licensor shall not be
required to inform Licensee of any such efforts to the extent that doing so
would, in Licensor's reasonable judgment, compromise the security of the Data
Center. Licensee has sole responsibility for reporting any notifications
received hereunder to Licensee's Customers in accordance with applicable law.
1.3 COMMUNICATION LINK-UPS AND FRAME RELAY SERVICES. Licensor will obtain
the communications equipment and lines necessary to use the Hosting Services by
Licensee and its Customers. Licensee is responsible for all actual costs
associated with the purchase, installation and maintenance of such communication
equipment and lines used in conjunction with the Hosting Services.
1.4 SECURITY ARCHITECTURE. Licensor is responsible for security of the Data
Center including, but not limited to, servers, routers, firewalls, switches,
circuits, and related software, and has deployed various types of defense
against unauthorized access to the Data Center. Licensee-owned equipment that is
connected to any Licensor-maintained device (e.g., border router, firewall) must
comply with current Licensor requirements and standards, the current version of
which are available upon request. Licensor will provide reasonable notice to
Licensee of any change to the requirements or standards. Any anticipated changes
to Licensee's environment that may affect the Hosting Services must be submitted
in writing to Licensor for Licensor's review and approval at least one week
prior to Licensee's scheduled implementation. If Licensee modifies its equipment
or software configurations that result in any interruption of the Hosting
Services, all diagnostic and repair time conducted by Licensor to restore
connectivity will be billed to Licensee at Licensor's then-current rates. Upon
Licensee's written request, Licensor will provide Licensee with a copy of the
most recent independent security audit report (SAS 70) of Licensor's operations,
provided that such SAS 70 report shall be treated as Licensor's Proprietary
Information.
1.5 LIMITATION ON USE OF HOSTING SERVICES. Licensee acknowledges and agrees
that Licensee may use the Hosting Services only for its internal operations and
for providing services to its Customers. Licensee shall not offer or utilize the
Hosting Services for any third party, including, but not limited to, any
downstream correspondents, except as permitted by this Agreement. Licensee shall
not have the right to use the Hosting Services to provide services to third
parties. This Section 1.5 of this Agreement is not intended to prohibit
potential customers from only browsing the website, provided however; that
Licensee agrees that potential customers shall not have any right to make any
use whatsoever of the Hosting Services either directly or indirectly.
2. OWNERSHIP OF DATA AND OPERATING SYSTEM. As between Licensor and
Licensee, Licensee owns all data transmitted to Licensor under this Agreement by
Licensee or its Customers. Licensor may keep records of such data to comply with
applicable laws and regulations and for its business records, subject to its
duties regarding Confidential Information. All production systems, programs,
operating instructions, and other documentation prepared and/or provided by
Licensor to Licensee shall be and remain Licensor's property.
3. LICENSEE REQUIREMENTS. Prior to implementation of the Licensed Products
in the Data Center, Licensee must provide at its sole cost and have ready (fully
assembled, functional and available) the hardware, software and equipment as
described in the applicable Documentation, and Licensee shall ensure that at
least two Licensee employees have received the applicable training with respect
to the Licensed Products, if any, set forth in the Documentation. Failure to
comply with the preceding pre-installation requirements may cause Licensee to
lose Licensee's scheduled installation date such that rescheduling of Licensee's
installation shall be at the sole discretion of Licensor: Throughout the term of
this Agreement Licensee shall ensure that at all times two Licensee employees
have completed the training as set forth in the applicable Documentation with
respect to the Licensed Products, if any. Any Services provided by Licensor to
Licensee as a result of Licensee's failure to meet these Licensee Requirements
are chargeable by Licensor at Licensor's standard applicable time and materials
rates.
4. DISASTER RECOVERY PLAN. Licensor will maintain off-site disaster
recovery capabilities designed to enable Licensor's Data Center to recover
substantial operational functionality from a designated disaster within
seventy-two (72) hours, including maintaining either an alternate mirrored site
or daily backups, as appropriate. Licensor will at all times maintain a disaster
recovery plan with respect to post-disaster recovery of (i) the Data Center and
(ii) other Licensor operations which Licensor considers critical to Licensee's
continued use of the Licensed Programs. Licensor shall test its disaster
recovery capabilities no less frequently than annually and, upon Licensee's
request, will provide Licensee with a summary of such disaster recovery plan
and/or the results of the most recent testing pursuant to such plan. If the
Licensee's banking regulator requests a copy of Licensor's disaster recovery
plan, Licensor will provide directly to Licensee's banking regulator a copy of
such plan pursuant to confidential treatment by the regulator. Additional
Disaster Recovery Services are available from Licensor pursuant to a Work Order
and Licensee's payment of the applicable fees set forth therein.
5. TERM. This Hosting Services Schedule shall have an initial term of
three (3) years from the Effective Date of the Agreement ("Initial Term") and
shall automatically renew thereafter for successive one-year terms ("Renewal
Term") unless either party provides the other written notification of its
intention not to renew this Schedule at least ninety (90) days prior to any
renewal date. Licensee may terminate this Schedule at any time without cause on
ninety (90) days' prior written notice to Licensor, provided that if Licensee
elects to so terminate this Schedule during the Initial Term, Licensee shall pay
Licensor an early termination fee equal to one-half of the total remaining
Hosting Fees payable to Licensor throughout the entire Initial Term, calculated
by averaging the fees paid to Licensor hereunder over the three complete
calendar months preceding the effective date of such termination. After the
Initial Term, and subject to Section 1.3 of Schedule A of this Agreement and
Licensor's written approval, Licensee may change the Designated Location in
Schedule C of this Agreement.
Page 6 of 16
SCHEDULE A-2
PROFESSIONAL SERVICES TERMS AND CONDITIONS
1. SERVICES
Subject to the terms and conditions of this Agreement, Licensor will provide to
Licensee the services described in any Work Order executed by the parties and
attached hereto (collectively, the "Services"). During the Term of this SCHEDULE
A-2, Licensee may obtain additional services from Licensor by entering into
subsequent Work Orders with Licensor, each of which shall be attached hereto and
incorporated herein for all purposes. Every Work Order shall be in writing,
signed by both parties, and shall describe, at a minimum, the scope of the
services to be provided by Licensor, any Deliverables (including the responsible
party and time constraints), project assumptions, specific Licensee obligations,
and the amounts payable by Licensee. To the extent that any applicable project
assumptions are not met or turn out to be inaccurate, the cost and delivery
schedule of the services will be impacted, and the parties shall negotiate in
good faith to mutually develop a work-around plan, revised schedule and revised
fees. Services fees are subject to an increase in the event of: (a) the
provision of Work Product and/or performance of services beyond those described
in any Work Order or Statement of Work; or (b) delays or additional costs
incurred by Licensor as a result of Licensee's failure to perform Licensee's
obligations (collectively, the "Out of Scope Services"). If the Service fees are
going to materially increase as a result of an event described in the preceding
sentence, Licensor will advise Licensee of the increase in fees in writing (the
parties agree that an email will suffice as a writing in this instance). All Out
of Scope Services shall be chargeable to and paid by Licensee on a time and
materials basis at Licensor's then-current rates for such services. To allow
Licensor to be able to manage Licensor's participation in the project most
effectively, Licensor reserves the right to determine the personnel (including
subcontractors) to perform the Services although Licensor will attempt to honor
Licensee's requests for specific individuals.
2. LICENSEE AND LICENSOR RESPONSIBILITIES
2.1 Licensor and Licensee will comply at all times with all applicable laws and
regulations with respect to the Services and Deliverables and with respect to
Licensee's use thereof.
2.2 Licensee will not use the Services in connection with any (A) infringement
or misappropriation of any intellectual property rights; or (B) any other
illegal conduct.
2.3 Licensee agrees to use commercially reasonable efforts to manage and support
the completion of the Services, and to provide such other materials, information
or services as may be necessary to accomplish the same including, without
limitation, any materials, information or services specifically set forth in the
applicable Work Order. Licensee understands that Licensor's performance is
dependent on Licensee's timely and effective satisfaction of Licensee
Responsibilities hereunder and Licensee's timely decisions and approvals.
Licensor shall be entitled to rely on Licensee's decisions and approvals in
connection with the Services. Further, Licensee understands that Licensor is
relying upon the information that Licensee provides and Licensee represents that
such information is true, accurate and complete. Because of the importance of
such information to this project, Licensee agrees to release Licensor and its
personnel from any liability and costs relating to the Services attributable to
any false, inaccurate or incomplete information provided by Licensee.
2.4 Licensee will provide Licensor written instructions for any shipments of
hardware and/or equipment required in the course of performing the Services.
Licensee will pay all shipping, freight and insurance charges incurred
hereunder. Title, risk of loss and/or damage to any software, hardware or
equipment, and responsibility for filing claims with the carrier, pass to
Licensee on delivery to such carrier. Licensor will pack all shipments in
accordance with normal commercial standards.
3. CHANGE ORDERS
Additions or modifications to any Work Order may be accomplished through the use
of a "Change Order". The party requesting the change shall submit a written
request to the other party specifying the desired additions or modifications to
the Work Order (the "Change Notice"), and the party receiving such Change Notice
shall submit a proposal to the party submitting such Change Notice. Licensor
will include, either on the Change Notice if it is the party submitting the
Change Notice, or on the proposal, if it is the party responding to the Change
Notice, a statement of any estimated additional hours and associated fees and
any changes to the Services as a result of such requested change. Upon both
parties' signatures to the proposal it shall become the Change Order. All
additional services performed under a Change Order shall be performed on a time
and materials basis with billing reflecting actual hours worked.
4. OWNERSHIP
Except as may be expressly agreed otherwise in writing by Licensor and Licensee,
including Section 5 of Schedule F of this Agreement, or set forth in any Work
Order, Licensor shall own all rights with respect to any work product generated
as a result of the Services (the "Work Product"), and Licensee hereby assigns to
Licensor, its successors and assigns, all right, title and interest in and to
the Work Product, including without limitation, all rights in and to any
inventions, ideas, designs, techniques or improvements embodied in the Work
Product or developed in the course of Licensor's performance of the Services,
any trade secrets, copyrights and "moral rights," and any renewal or extensions
of such rights.
5. WARRANTY
Services are deemed accepted on delivery unless stated otherwise in a Work
Order. Notwithstanding the foregoing, Licensor warrants that the Services will
be performed in a professional and workmanlike manner in accordance with
applicable professional standards. However, Licensor does not warrant, nor will
Licensor be responsible for, the performance of any third party products.
Licensee's sole and exclusive rights and remedies with respect to any third
party product, including rights and remedies in the event a third party product
gives rise to an infringement claim, will be against the third party vendor and
not against Licensor. Licensor shall assign to Licensee any assignable
warranties Licensor may receive from any such third party vendor.
THE PRECEDING IS LICENSOR'S ONLY WARRANTY CONCERNING THE SERVICES AND ANY WORK
PRODUCT OR DELIVERABLE, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES
AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE.
6. INDEMNIFICATION
6.1 Licensor will defend Licensee against any damage or expense relating to
bodily injury or death of any person or damage to real and/or tangible personal
property incurred during the course of performing the Services and to the extent
caused by the negligent or willful acts or omissions of Licensor personnel or
agents in performing the Services.
6.2 Licensor will indemnify Licensee against any damage or expense finally
awarded against Licensee relating to any claim that the Work Product infringes a
presently existing United States patent, copyright or trade secret. This
provision will not apply to the extent the alleged infringement is caused by or
based on (i) Licensee's misuse of the Work Product; (ii) Licensee's failure to
use corrections or enhancements made available by Licensor; (iii) Licensee's use
of the Work Product in combination with any product or information not owned,
developed or provided by Licensor; (iv) Licensee's use of the Work Product for
other than Licensee's internal purposes; or (v) information, directions or
materials provided by Licensee or any third party.
6.3 Licensee will indemnify Licensor against any damage or expense that may
result from any third party claim relating to the Services or any use by
Licensee of any Work Product, and Licensee will reimburse Licensor for all
expenses (including counsel fees) as incurred by Licensor in connection with any
such claim, except to the extent such claim (i) is finally determined to have
resulted from Licensor's gross negligence or willful misconduct or (ii) is
covered by any of the preceding indemnities.
6.4 To receive any of the foregoing indemnities, the party seeking
indemnification must notify the other promptly that a suit has been brought,
must provide reasonable cooperation (at the indemnifying party's expense) and
full authority to defend or settle the claim or suit. Neither party will be
required to indemnify the other under any settlement made without its consent.
This Section 6 shall survive termination of this Agreement.
7. DEFAULT
Either party may, upon giving thirty (30) days written notice identifying
specifically the basis for such notice, terminate any Work Order individually
for breach of a material term or condition of the Work Order, provided the
breaching party shall not have cured such breach within the thirty (30) day
period. In the event of such termination, Licensor shall deliver to Licensee any
applicable Work Product produced prior to the effective date of termination,
subject to Licensee's payment to Licensor for all Services rendered and expenses
incurred by Licensor prior to the effective date of termination
8. TERM
This SCHEDULE A-2 shall have a term of three years from the Effective Date of
this Agreement, and shall renew automatically for additional one-year terms
unless either party provides written notice to the other party of its intention
not to renew this SCHEDULE A-2 no less than ninety (90) days prior to the
expiration of any term. The provisions of any Work Order executed by the parties
and attached hereto relating to a specific term for the Services described in
such Work Order shall supersede this Section 8 only with respect to such Work
Order.
Page 7 of 16
SCHEDULE A-2.1
SCOPE OF SERVICES: The "Services" are the implementation of S1 IBS Retail and/or
S1 IBS Cash Management and any applicable optional modules, as licensed and paid
for by Licensee (the "Licensed Programs"), into the S1 Data Center as described
herein. This Work Order describes concurrent implementation of one production
instance of the Licensed Program(s); additional implementation projects (for
affiliated financial institutions or a separate implementation of one or some of
the Licensed Program(s)) are subject to additional fees.
PRE-IMPLEMENTATION LICENSEE REQUIREMENTS: Licensee shall designate one or more
technical representatives to be available throughout the installation project.
Licensee shall provide at its own cost and have ready (fully assembled,
functional and available) prior to the day implementation begins the hardware,
software and equipment set forth in the Implementation Readiness Handbook and as
set forth herein. Licensee is responsible for providing all necessary data file
extracts from Licensee's third party processing system vendors in conformance
with S1 Licensed Program file formats. S1 will obtain and maintain the
communications equipment and lines necessary to connect from Licensee's point of
demarcation to the S1 Data Center, however Licensee is responsible for all costs
associated with the purchase, installation and maintenance of such communication
equipment and lines. Licensee should have both a production environment and a
test environment (including test accounts and data) suitable for testing all
aspects of the Licensed Programs ready to be used during the implementation
project. If Licensee opts to forego creating a suitable test environment and
requires Testing to be performed in Licensee's production environment, Licensee
expressly assumes all responsibility and liability for any resulting errors,
damages or claims. Licensee shall provide a minimum of 4 test accounts,
including passwords, to Licensor for Licensor's use in completing the Services
and to be eligible to receive Support Services following completion of the
Services. Failure to comply with any of these pre-implementation requirements
may cause Licensee to lose Licensee's scheduled implementation slot such that
rescheduling of Licensee's implementation shall be at the sole discretion of
Licensor, and Licensee shall be responsible for Licensor's costs related to
re-starting and-or rescheduling the Services.
CHANGE ORDERS: Additions or modifications to this Work Order may be accomplished
through the use of a "Change Order". The party requesting the change shall
submit a written request to the other party specifying the desired additions or
modifications to the Work Order (the "Change Notice"), and the party receiving
such Change Notice shall submit a proposal to the party submitting such Change
Notice. S1 will include, either on the Change Notice if it is the party
submitting the Change Notice, or on the proposal, if it is the party responding
to the Change Notice, a statement of any estimated additional hours and
associated fees and any changes to the Project Milestones or Deliverables as a
result of such requested change. Upon both parties' signatures to the proposal
it shall become the Change Order. All additional services performed under a
Change Order shall be performed on a time and materials basis with billing
reflecting actual hours worked and any associated travel and expenses.
LIMITATIONS: Unless such modules have been included as Licensed Programs
licensed by Licensee, this implementation statement of work does not apply to
the implementation of optional modules for IBS, including but not limited to:
- Xxxx Payment services and interfaces
- Check Imaging modules or interfaces
- Check Ordering services or interfaces
- Text Statement modules or interfaces
- Credit Card modules or interfaces
- Real-time Host access module
- Migration/transfer of data from an existing system, either S1
or alternate provider
- Any customization not expressly described and agreed to herein
- Other S1 products and services not included with the license
for IBS Retail or IBS Cash Management.
The availability of any standard Licensed Program feature is expressly subject
to the availability of support for such feature within Licensee's applicable
third party processing systems (e.g. host processing, online xxxx payment, check
imaging, etc.) as well as a standard interface enabling such feature between the
Licensed Program and the applicable third party processing system. If a standard
Licensed Program feature that was previously unavailable due to reasons
described above subsequently becomes available within Licensee's environment for
any reason, Licensee may purchase implementation of such additional feature at
S1's standard rates.
STATEMENT OF WORK: The Statement of Work detailing the general Services tasks
(the "Tasks") is outlined below. Licensee's performance of Licensee's
obligations under the Tasks is a material condition to S1's performance
hereunder. Licensee shall be responsible for any costs incurred by S1 as a
result of Licensee's non-performance of any Licensee Tasks or the
Pre-implementation Licensee Requirements described above. The Task descriptions
include definitions of services to be provided by S1 hereunder. Any additional
services beyond such definitions may be provided by Licensor in Licensor's sole
discretion, and are subject to (i) Licensee's agreement to pay the applicable
additional fees calculated on an hourly basis at S1's standard rate for such
services, and (ii) scheduling of the additional services at the sole discretion
of S1.
Page 8 of 16
STATEMENT OF WORK
SERVICE TASK RESPONSIBLE PARTY
-------------------------------------------------------------------------------------------------------
S1 conducts Kickoff Meeting with Licensee wherein S1 provides S1/Licensee
INSTALLATION Licensee with project milestone activities, scope and
objectives, and the S1 Web Editor for System Settings (WESS)
-------------------------------------------------------------------------------------
Licensee fills out WESS online. Up to ten (10) hours of Licensee
consulting from S1 is available to assist Licensee with
completing WESS.
-------------------------------------------------------------------------------------
S1 conducts the Implementation Workshop with the Licensee S1/Licensee
where the completed WESS requirements are reviewed.
-------------------------------------------------------------------------------------
Licensee signs off on the WESS requirements for the Licensee
implementation; any deviations from the approved requirements
will result in a Change Order and additional fees.
-------------------------------------------------------------------------------------
S1 provides Licensee the final implementation project plan. S1
-------------------------------------------------------------------------------------
Setup & configuration of the Administration PC is completed S1/Licensee
via PC Anywhere.
-------------------------------------------------------------------------------------------------------
S1 provides the education services as purchased and paid for by S1
Licensee. Unless agreed otherwise in writing, all training is
provided remotely via WebEx.
TRAINING -------------------------------------------------------------------------------------
Licensee shall cause Licensee's designated contacts (minimum 2) Licensee
and project team members to attend the education services prior
to initiation of any Friends & Family testing.
-------------------------------------------------------------------------------------------------------
BRANDING/ Licensee completes Licensee-specific Branding and configuration Licensee
CONFIGURATION of the Licensed Programs via WESS; any additional branding or
configuration provided outside of WESS is subject to custom
programming fees at S1's standard rates and scheduled at
S1's sole discretion. "Branding" means one brand of bank
look and feel.
-------------------------------------------------------------------------------------------------------
S1 provides the Licensee with a Test Approach document that can S1
TESTING be utilized by the Licensee during Licensee's Friends & Family
Testing
-------------------------------------------------------------------------------------
S1 confirms download/exchange of data from host system to the S1
Licensed Program(s)
-------------------------------------------------------------------------------------
Licensee performs Friends & Family Testing for a maximum of 45 Licensee
calendar days or one month-end cycle; any additional testing
will impact the project milestones and is subject to additional
fees. Licensee must use S1's Case Management Tool to enter and
track all queries and functional irregularities with the
Licensed Programs. S1 will provide fifteen (15) hours of
Consulting Services during Friends & Family testing to a weekly
checkpoint meeting and address Licensee functionality
questions. (Consulting Services excludes defect analysis and
resolution).
-------------------------------------------------------------------------------------------------------
Page 9 of 16
SCHEDULE A.2.2
IMPLEMENTATION SERVICES FOR MEMO POST
SCOPE OF SERVICES: S1 shall implement the Internet Banking System ("IBS") module
for Memo Post as integrated with one implementation of the S1 IBS application
licensed from S1 by Client as described herein (the "Services"). The Services
are estimated to require 5 to 10 days and shall be complete upon S1's
confirmation of availability of the Memo Post through the IBS system. The
Services do not include professional services with regard to future upgrades,
data conversion or migration services, or development or migration of any
customized code not made generally commercially available by S1. All Services
will be performed remotely.
CLIENT REQUIREMENTS: Client shall designate a Technical Contact to be available
throughout the Services who has sufficient technical expertise and corporate
authority to make all necessary decisions and take all necessary actions on
behalf of Client. Client will obtain and maintain the communications equipment
and lines necessary for performance of the Services, including providing S1
access to Client's implementation of IBS via pcAnywhere if Client's
implementation of IBS is on-site on the Client premises. Client must have both a
production environment and a test environment (including test accounts and data)
suitable for testing all aspects of the Memo Post IBS module. If Client opts to
forego creating a suitable test environment and requires testing to be performed
in Client's production environment, Client expressly assumes all responsibility
and liability for any resulting errors, damages or claims. Failure to comply
with any of these Client Requirements may cause Client to lose Client's
scheduled date for performance of the Services such that rescheduling shall be
at S1's discretion.
CHANGE ORDERS: Additions or modifications to this Work Order may be accomplished
through the use of a "Change Order". The party requesting the change shall
submit a written request to the other party specifying the desired additions or
modifications to the Work Order (the "Change Notice"), and the party receiving
such Change Notice shall submit a proposal to the party submitting such Change
Notice. S1 will include, either on the Change Notice if it is the party
submitting the Change Notice, or on the proposal, if it is the party responding
to the Change Notice, a statement of any estimated additional fees and any
changes to the Project Milestones or Deliverables as a result of such requested
change. Upon both parties' signatures to the proposal it shall become the Change
Order. Except as expressly provided herein, a Change Order is required for any
additions or modifications to the implementation project plan following approval
of such plan by Client.
STATEMENT OF WORK: The Statement of Work detailing the general milestones for
performance of the Services is outlined below. Client's conformance to the
milestones is a material condition to S1's performance hereunder. Client shall
be responsible for any costs incurred by S1 as a result of Client's
non-conformance to the milestones or the Client Requirements described above.
The milestone descriptions include defined levels of services to be provided by
S1 hereunder. Any additional services requested by Client beyond such defined
levels are available subject to (i) Client's payment of the applicable
additional fees calculated on an hourly basis at S1's standard rate for such
services, and (ii) scheduling of the additional services at the sole discretion
of S1.
SERVICE MILESTONE RESPONSIBLE PARTY
---------------------------------------------------------------------------------------------------------
INSTALLATION S1 conducts Kickoff Meeting with Client wherein S1/Client
S1 provides Client with project milestone activities,
scope and objectives. S1 will provide product/add-on
current capability. S1 will also provide the Memo Post file
specifications.
---------------------------------------------------------------------------------------
Client designates Client's Technical Contact for the Services. Client
---------------------------------------------------------------------------------------
Client provides a Memo Post batch file for mapping and Client
testing. S1 will provide up to one (1) hour of
consulting services on the file layout and mapping. Any
further time will be charged at standard S1 time and
material rates
---------------------------------------------------------------------------------------
S1 provides Client the final implementation project plan S1/Client
and Client approves; any deviations from the approved
project plan will require a Change Order and additional
fees, if applicable.
---------------------------------------------------------------------------------------
Client will provide pcAnywhere access to system. If Client
consulting time is required for setup of the pcAnywhere
session, standard time and material charges from S1 will
apply. If Client is on premise, then remote access is via
TCP/IP or VPN.
---------------------------------------------------------------------------------------------------------
TESTING S1 confirms availability of the Memo Post through the IBS system S1
---------------------------------------------------------------------------------------
Client confirms Memo Post balance information is Client
available and correct when viewed on the Internet.
S1 will provide up to one (1) hour of consulting services
during testing.
---------------------------------------------------------------------------------------------------------
COMPENSATION:
Memo Post Module Implementation Services: SEE SCHEDULE B OF THIS AGREEMENT.
Total due upon execution of this Work Order:
OTHER TERMS:
S1's ability to meet specific milestones or to perform the Professional
Consulting Services as described in this Work Order may be dependent upon
delivery to S1 of certain information, media, equipment, references, and other
support. S1 shall not be held responsible for Services dependent upon such
support or refunds of prepayment towards such Services if Client, Client's
representatives, or any other of Client's vendors or associates fail to deliver
that support in a timely manner. The pricing shown above is valid for thirty
(30) days after the Work Order Date shown above, and is subject to change
thereafter unless accepted as shown by Client's authorized signature below
within such thirty (30) day period.
This Work Order is effective upon the later date shown following the signatures
of the parties, below (the "Effective Date"), and supersedes all prior
agreements, whether oral or in writing, regarding the subject matter addressed
herein. This Work Order may only be modified by a written agreement signed by
the parties. The parties have each indicated their acceptance of the terms and
conditions set forth herein by signature of their duly authorized representative
in the space provided below.
Page 10 of 16
SCHEDULE A-2.3 - WORK ORDER
CUSTOMER CENTER DEVELOPMENT SERVICES
SCOPE OF SERVICES: The "Development Services" are the development and deployment
of a Licensee-branded, custom web site in HTML that Licensor will integrate with
the Customer Center and/or any applicable optional modules, as licensed and paid
for by Licensee hereunder. The Development Services are estimated to require 45
to 55 business days and are complete upon completion of the final Milestone
listed below. This Work Order describes the standard implementation of one
production instance of the Customer Center Web Site; additional services are
subject to additional fees. The major phases of the Development Services are set
forth below. The features and/or functionality of the Customer Center may change
during the Initial Term and any Renewal Term, provided that at all times the
Customer Center will substantially conform in all material respects with the
then-current version of the user documentation.
LICENSEE RESPONSIBILITIES: Subject to Section of Schedule A-2, prior to
commencement of the Development Services, Licensee shall designate one or more
representatives to be available throughout the project. Such representative
shall act as Licensee's project manager and shall have sufficient authority and
be responsible for preparing and delivering all Licensee communications and
deliverables to S1. Licensee shall provide the following deliverables no less
than one week before the scheduled commencement of the Development Services.
- Answers to the Online Questionnaire.
- An electronic copy of Licensee's Logo. Preferred format is JPG.
- A site map outlining the titles of all of the web site pages to be
created, appropriately sized and proportioned for the number of pages
of content as set forth below.
- The Licensee Content or text that will appear on each of the pages
listed in the Site Map. An MS Word document is preferred.
Failure to comply with any of these responsibilities may cause Licensee to lose
Licensee's scheduled project date such that rescheduling of Licensee's
implementation shall be at the sole discretion of Licensor.
CHANGE ORDERS: Additions or modifications to this Work Order may be accomplished
through the use of a "Change Order". The party requesting the change shall
submit a written request to the other party specifying the desired additions or
modifications to the Work Order (the "Change Notice"), and the party receiving
such Change Notice shall submit a proposal to the party submitting such Change
Notice. Licensor will include, either on the Change Notice if it is the party
submitting the Change Notice, or on the proposal, if it is the party responding
to the Change Notice, a statement of any estimated additional fees and any
changes to the Milestones or any deliverables as a result of such requested
change. Upon both parties' signatures to the proposal it shall become the Change
Order. A Change Order is required for any additions or modifications to the
Development Services project plan following approval of such plan by Licensee as
described below during the first phase of the Development Services.
PROJECT ASSUMPTIONS: The scope of this engagement is limited by the following
assumptions. Requirements over and above these limitations will be defined in a
mutually agreeable Change Order and may be subject to additional charges.
1) The Licensee Web Site shall consist of no more than 15 pages. A page
consists of a single HTML Page or Frameset that contains no more that
10,000 characters of text, and operates as the final destination of a
hyperlink on the Client Web Site.
2) This Work Order does not include the integration of optional modules
for Customer Center, including but not limited to: Electronic Forms,
Image Statement modules or interfaces, stand-alone products such as
Forms Manager, or additional services such as DNS transfer unless such
optional modules and/or services have been specifically licensed and
paid for by Licensee.
3) Custom-developed graphics such as logos and animations are outside the
scope of this Agreement and available by Change Order only.
4) S1 must have two weeks notice prior to publishing a Client Web Site on
the World Wide Web. S1 is not responsible for the actions of outside
domain name or Internet service providers.
STATEMENT OF WORK: The Statement of Work detailing the project Milestones is
outlined below. Licensee's conformance to the Milestones is a material condition
to S1's performance hereunder. Licensee shall be responsible for any costs
incurred by S1 as a result of Licensee's non-conformance to the Milestones or
the Licensee Requirements described above. These costs are calculated on an
hourly basis at S1's standard rate for web site development and Customer Center
integration. The Milestone descriptions include defined levels of services to be
provided by S1 hereunder. Any additional services requested by Licensee beyond
such defined levels are available subject to (i) Licensee's payment of the
applicable additional fees calculated on an hourly basis at S1's standard rate
for such services, and (ii) scheduling of the additional services at the sole
discretion of S1.
DEVELOPMENT RESPONSIBLE
PHASE SERVICE MILESTONE PARTY
--------------------------------------------------------------------------------------------------------------
Kick-off meeting with Licensee wherein project milestones
and Licensee preferences for web site look and feel are
discussed.
INCEPTION & PROJECT ------------------------------------------------------------- S1
ELABORATION MANAGEMENT Delivery of Project Plan based
upon Pre-implementation
Deliverable dates and development
slot for approval by Licensee.
--------------------------------------------------------------------------------------------------------------
Graphic compositions for Licensee Web Site. These are
static representations of a home page and an interior S1
page. They provide a representation of the general
CONSTRUCTION GRAPHIC appearance of the web site.
COMPOSITION -------------------------------------------------------------------------
Licensee selects composition and provides any final Licensee
feedback on revisions to look and feel
--------------------------------------------------------------------------------------------------------------
Page 11 of 16
Revised Composition made available to Licensee S1
-------------------------------------------------------------------------
Signed approval of Graphic Composition from Licensee Licensee
----------------------------------------------------------------------------------------
FUNCTIONAL S1 Development team creates functional home and interior S1
PROTOTYPE page from Graphic Composition
-------------------------------------------------------------------------
Licensee provides feedback on functional prototype Licensee
-------------------------------------------------------------------------
Revised Functional Prototype made available to Licensee S1
-------------------------------------------------------------------------
Signed approval of Functional Prototype from Licensee Licensee
--------------------------------------------------------------------------------------------------------------
Creation of remaining functional parts of web site from
Functional Prototype. Entry and formatting of Licensee S1
Content into web site
-------------------------------------------------------------------------
Licensee provides feedback on Production Build Licensee
-------------------------------------------------------------------------
TRANSITION PRODUCTION Revised Production Build made available to Licensee S1
BUILD OUT -------------------------------------------------------------------------
Declaration that Web Site is complete and ready for
Quality Assurance Phase from Licensee Licensee
-------------------------------------------------------------------------
Thorough examination of entire Licensee web site for
functionality, graphic quality standards compliance,
browser and computing platform compliance S1
--------------------------------------------------------------------------------------------------------------
OPERATION QUALITY Implementation of changes required by QA testing results S1
ASSURANCE -------------------------------------------------------------------------
Notification of Web Site Completion and provision of S1
Customer Center access.
--------------------------------------------------------------------------------------------------------------
Page 12 of 16
SCHEDULE B - FEE SCHEDULE
[Intentionally Omitted from SEC Filing]
Page 13 of 16
SCHEDULE C - LICENSEE AFFILIATES, DESIGNATED LOCATIONS
LICENSEE AFFILIATES
NONE
DESIGNATED LOCATIONS
Internet Banking System: S1 Data Center
Voice Banking System: 1st Colonial National Bank
0000 Xxxxxx Xxx.,
Xxxxxxxxxxxx, XX 00000
Page 14 of 16
SCHEDULE F -- CUSTOMER CENTER TERMS AND CONDITIONS
1. DEFINITIONS
1.1 LICENSEE WEB SITE. A custom web site developed by Licensor in HTML in
accordance with Licensee's written specifications subject to the terms and
conditions of this Agreement. The Licensee Web Site does not include any
Integration Code or Third Party Products.
1.2 CUSTOMER CENTER. Licensor's proprietary dynamic, database-driven
software application accessible over the Internet.
1.3 INTEGRATION CODE. Software code developed by Licensor to
functionally integrate any Licensee-owned web site with the Customer Center.
1.4 PROJECT COORDINATOR. Licensor will assign a Project Coordinator who
shall be Licensee's primary contact for all communications regarding the
Development Services, including Change Orders and Hold Status
1.5 MILESTONES. The project milestones described in detail by deliverable,
responsible party, and allotted time in the applicable Work Order.
1.6 TECHNICAL CONTACT. Licensee's designated technically qualified employee
who shall be responsible for all communications to Licensor related to
Licensor's performance of the Services hereunder.
1.7 WORK PRODUCT. The Licensee Web Site and Integration Code, collectively.
2. SERVICES PROVIDED
2.1 DEVELOPMENT SERVICES. Subject to Licensee's payment of the applicable
fees, Licensor will perform such design, development, programming and other
services as are described in the Statement of Work set forth in the applicable
Work Order attached to this Agreement (the "Development Services").
2.2 HOSTING SERVICES. The Customer Center is hosted on servers owned or
operated by Licensor or by a third party for the benefit of Licensor. Subject to
Licensee's payment of the applicable fees, Licensor will also host any Licensee
web site such that Licensee's Customers may access and use the Customer Center
via the Licensee web site subject to the following: (i) Licensor may, in its
sole discretion, require that any non-Licensor created Licensee web site source
code meet Licensor's requirements for security and level of functionality; and
(ii) Licensor's then-current server configuration is compatible with all
components of the Licensee web site. Subject to Licensee's payment of the
applicable fees, Licensee will receive: (a) 15 MB of hard drive space; (b) 3 GB
of data transfer a month; and (c) Domain Name Server ("DNS") hosting. Any use of
more than the above-stated hard drive space, data transfer volume and/or
additional DNS hosting of domain names post-installation will result in
additional fees at Licensor's then-current rates. For use of DNS hosting
Licensee must identify Licensor as the Technical Contact on the DNS entry.
Licensor will assist Licensee in establishing or transferring, as applicable,
the DNS for any Licensor-hosted web site to Licensor, and Licensee shall pay
Licensor the related DNS establishment or transfer fee. Licensee shall pay
Licensor its then-current rates for the time Licensor spends reviewing the
source code of the Licensee web site as described above, regardless of whether
Licensor approves such code.
3. LICENSES GRANTED
3.1 TO LICENSEE. Subject to the terms and conditions of this Agreement,
Licensor grants to Licensee a non-transferable, non-exclusive license to access
and use (and to permit Licensee's Customers to access and use) the Customer
Center solely as integrated with the Licensee Web Site and solely for Licensee's
internal use (and Licensee's Customers' personal use) in accordance with the
terms of this Agreement. Licensee shall have no right to modify the Customer
Center except through Licensee's use, in accordance with the applicable
documentation, of any web-based administration graphical user interface software
tool provided by Licensor. Subject to the terms and conditions of this
Agreement, Licensor grants to Licensee a non-transferable, non-exclusive license
to use the Integration Code solely for the purpose of accessing the
functionality of the Customer Center through Licensee's web site. Licensee shall
have no right to obtain a copy of the software code, either in object or source
code form, for either the Customer Center or the Integration Code for any reason
at any time. This Section 3.1 of this Agreement is not intended to prohibit
potential customers from only browsing the website, provided however; that
Licensee agrees that potential customers shall not have any right to make any
use whatsoever of the Hosting Services either directly or indirectly.
3.2 TO LICENSOR. Licensee grants to Licensor a non-exclusive, royalty-free,
worldwide license to use Licensee's trademarks, service marks, trade names, and
logos, (collectively, "Marks") solely for the purpose of performing the
Services. Licensee grants to Licensor a non-exclusive, royalty-free, worldwide
license to the Licensee Content, as defined below, and the Licensee Web Site, to
reproduce, modify, create derivative works, publicly perform and display the
Licensee Content and the Licensee Web Site solely for the purpose of performing
the Services. Licensee grants to Licensor a non-exclusive, fully paid-up,
perpetual license worldwide to use, copy, modify, distribute, and create
derivative works of the Licensee Web Site, provided that all of Licensee's
Confidential Information and any Marks are removed before any such use. Solely
for Licensor's marketing purposes, Licensee grants to Licensor a license to use,
copy, and distribute hard-copy and live, soft-copy screenshots of only the
homepage of the Licensee Web Site.
3.3 THIRD-PARTY PRODUCTS. Except as otherwise provided herein, Licensor
grants to Licensee a limited, non-exclusive, non-transferable license to use the
software, data, files, tools and all other materials owned and/or distributed by
third parties and delivered to Licensee by Licensor in conjunction with the
Customer Center in accordance with the terms and conditions of this Agreement
(collectively, the "Third-Party Products") for the sole purpose of using the
Work Product consistent with the terms of this Agreement. Licensee agrees to the
terms and conditions with regard to Licensee's use of any Third Party Products
as set forth in EXHIBIT A to this SCHEDULE F, which is incorporated herein by
reference as if set forth in full. The terms of EXHIBIT A are governed by
Licensor's agreement with its current content provider, and are subject to
change upon written notice by Licensor to Licensee. To the extent that the terms
of EXHIBIT A conflict with any other terms of this Agreement, the terms of
EXHIBIT A shall control.
3.4 OTHER RIGHTS. As between the parties, all rights not expressly granted
herein are reserved to Licensor including, without limitation, all rights with
respect to the design, layout, user interface, look and feel, graphics (except
as to graphics of Marks owned by and provided by Licensee), or other nonliteral
elements or characteristics developed by or with the assistance of Licensor and
incorporated into the Work Product.
4. LICENSEE RESPONSIBILITIES
4.1 COOPERATION. Licensee shall make reasonable efforts to provide Licensor
such information and access to Licensee's personnel, facilities, equipment,
databases, software and other resources as are reasonably required with respect
to Licensor's performance of the Services, or as Licensor may reasonably
request.
4.2 DESIGNATION OF TECHNICAL CONTACT. Licensee shall provide the name of
and contact information for Licensee's Technical Contact to Licensor promptly
upon execution of this Agreement by Licensee.
4.3 LICENSOR DISCLAIMER LANGUAGE. Licensee must maintain on the Licensee
Web Site any disclaimer or similar language as Licensor provides to Licensee,
provided that such language is required either by law or by any third party and
under such terms as Licensor may specify in its reasonable discretion.
4.4 USE OF CUSTOMER CENTER BY LICENSEE'S CUSTOMERS, EMPLOYEES AND
SUBCONTRACTORS. As between the parties, Licensee shall be solely responsible for
any misuse of the Customer Center by Licensee's Customers, employees and
subcontractors in violation of this Agreement.
5. OWNERSHIP
5.1 OWNERSHIP BY LICENSEE. As between Licensor and Licensee, all documents,
text, trademarks, servicemarks, logos, photographs, video, pictures, animation,
sound recordings, software, computer code and all other works of authorship
provided by the Licensee (collectively, the "Licensee Content") shall at all
times remain the sole property of the Licensee to the extent Licensee represents
that it owns such content. Licensee is solely responsible for the accuracy of
all Licensee Content. Licensee shall also own the Licensee Web Site produced by
Licensor under this Agreement and for which S1 has been paid.
5.2 OWNERSHIP BY LICENSOR. As between Licensor and Licensee, other than the
Licensee Content and Licensee Web Site, all documents, text, photographs, video,
pictures, animation, sound recordings, software (including the Customer Center),
computer code, and all other works of authorship provided by Licensor
(collectively the "Licensor Content") shall at all times remain the sole
property of Licensor.
5.3 THIRD-PARTY PRODUCTS. Except as otherwise described in Section 3.3,
nothing herein shall cause or imply any sale, license, or other transfer of
proprietary rights of or in any Third Party Products from one party to this
Agreement to the other party.
5.4 PROHIBITED ACTIONS. Except as expressly authorized herein, Licensee
shall not (and shall not permit any third party to): (i) copy, modify, create
derivative works, reverse engineer, disassemble, distribute, license or
otherwise transfer the Licensor Content; or (ii) use, rent or lease the Licensor
Content to provide or allow the provision of services for third parties who are
not Customers of Licensee.
6. TERM AND RENEWAL; SURVIVAL OF PROVISIONS. The initial Term of this
SCHEDULE F is three (3) year from the Effective Date. Thereafter, this Schedule
renews automatically for additional one-year terms, unless either party notifies
the other in writing of the desire to discontinue this Schedule at least sixty
(60) days prior to any renewal date. The provisions of this Schedule, which, by
their nature, are intended to survive termination or expiration hereof, shall so
survive, including but not limited to Section 5.
Page 16 of 16
EXHIBIT A
1. License. SI hereby grants to Licensee the nonexclusive right and
license solely in connection with the provision of Licensee's services,
to use and view, and allow Licensee's end users to use and view, the
Third-Party Data, for the purpose of making such available to
Licensee's Users as part of the Web Site.
2. Ownership and Restrictions. Licensee expressly acknowledges and agrees
that (a) the Third-Party Data is proprietary, third party provider
thereof (the "Content Provider"), currently Inlumen, Inc., is the
licensor of some of the Third-Party Data, and all Third-Party Data is
subject to S1's agreements with its Content Provider and Content
Provider's agreement with its Data providers ("Data Providers"); (b) S1
and/or its Data Providers retain all proprietary right, title and
interest, including all intellectual property rights, in all
Third-Party Data and in any materials provided to Licensee pursuant to
this Agreement; (c) under no circumstances, is Licensee permitted to
copy, license, sell, transfer, make available or otherwise redistribute
the Third-party Data to any entity or person without the prior written
permission of S1 and its Data Provider(s); and (d) Licensee and the end
users of the Web Site are specifically restricted from reusing,
modifying, distributing, transmitting, digitizing, encoding, databasing
and/or archiving any Third-Party Data. Licensee shall use its best
efforts to stop any such copying or redistribution immediately after
such impermissible use becomes known, and shall immediately notify S1
of such misuse of the Third-Party Data or other violation of the
restrictions set out in this Exhibit A. Licensee agrees to abide by any
applicable use and/or presentation restrictions in connection with the
Third-Party Data as set forth in its agreement with S1 and its Data
Providers, including the reproduction and/or display of all Content
Provider legal and copyright notices. Licensee also agrees to cooperate
reasonably with S1 and Content Provider, so that Content Provider may
provide the Third-Party Data in accordance with this Agreement.
3. Data Modification. In the event that a Data Provider agreement
terminates or is amended for any reason, a Data Provider ceases to
provide Third-Party Data for any reason, or Data Provider implements
any other changes in the Third-Party Data, or the format, medium or
form of delivery of the Third-Party Data, S1 reserves the right, in its
sole discretion, to either (a) cease providing such Data Provider's
Third-Party Data to Licensee; (b) alter the nature of the Third-Party
Data of such Data Provider in accordance with any such amendment or
change; and/or (c) provide to Licensee a reasonably equivalent
substitute for the terminated Third-Party Data.
4. No Warranty. S1, CONTENT PROVIDER AND ITS DATA PROVIDERS DISCLAIM ANY
AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THIS
AGREEMENT, THE THIRD-PARTY DATA AND ALL PERFORMANCE HEREUNDER,
INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, NONINFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. S1, CONTENT
PROVIDER AND ITS DATA PROVIDERS MAKE NO WARRANTIES REGARDING THE
COMPLETENESS, ACCURACY OR AVAILABILITY OF THE THIRD-PARTY DATA.
5. Limitation of Liability. EXCEPT AS PROVIDED UNDER THE INDEMNITY
PROVISION HEREUNDER, IN NO EVENT SHALL S1, CONTENT PROVIDER OR ITS DATA
PROVIDERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY
DIRECT, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
(INCLUDING LOSS OF REVENUES OR PROFITS OR DAMAGES ARISING FROM LOST
DATA), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER
THEORY, ARISING OUT OF, OR RELATING IN ANY WAY TO THIS AGREEMENT OR
FROM PERFORMANCE HEREUNDER, WHETHER OR NOT ANY SUCH PARTY HAD ANY
KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT SUCH DAMAGES COULD BE INCURRED.
6. Indemnification. Licensee shall indemnify and hold harmless S1, Content
Provider and its Data Providers against any claim, damages, loss,
liability or expense, including attorneys fees, arising out of
Licensee's use of the Third-Party Data in any way contrary to this
Agreement.
Page 17 of 16
