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CONFIDENTIAL TREATMENT* EXHIBIT 10.3
* CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO THE
RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION.
BRACKETS AND "+" HAVE BEEN USED TO IDENTIFY INFORMATION WHICH IS THE
SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST.
MARKETING AGREEMENT
This Marketing Agreement (the "Agreement") is made by and between
NFRONT, INC. ("nFront"), a Georgia corporation having its principal offices at
000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 and "BANCTEC, USA, INC."
("BancTec"), a Delaware corporation having its principal offices at 0000 XXX
Xxxxxxx, Xxxxxx, Xxxxx 00000, the Agreement to be effective the 19th day of
January, 1999 (the "Effective Date").
W I T N E S S E T H:
WHEREAS, nFront is in the business of providing home banking and xxxx
payment services through the Internet to customers of banks and other financial
institutions;
WHEREAS, BancTec is in the business of providing transaction processing
and other administrative and computer processing services to banks and financial
institutions; and
WHEREAS, BancTec desires to offer to its Customer Base (as hereinafter
defined) and potential customers Internet home banking capabilities; and
WHEREAS, nFront desires BancTec to offer nFront's proprietary Internet
home banking system as more fully described in Exhibit A attached hereto (the
"System") to BancTec's Customer Base and to potential Bank customers of BancTec;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
1.1 As used in this Agreement, each of the following terms has the meaning
set forth thereafter, such meaning to be equally applicable both to the singular
and plural forms of the terms herein defined:
(a) "Agreement" means this Marketing Agreement, together with all
exhibits and schedules hereto now or hereafter signed by BancTec and nFront (all
of which are herein incorporated by reference), as the same may be modified,
amended or supplemented from time to time.
(b) "Bank" means a financial institution that offers banking services
to the general public.
(c) "Customer Base" means those customers listed on Exhibit B attached
hereto and any other Banks who become customers of BancTec during the Term of
this Agreement.
(d) "Documentation" means that portion of the System that provides
installation and operating instructions for use of the System.
(e) "End-User" means the ultimate user of the System.
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(f) "Generic Hardware" means computer equipment (and configurations
thereof) that meets the specifications provided by nFront for use with the
System.
(g) "System" means nFront's proprietary Internet home and/or business
banking system described on Exhibit A of this Agreement, including all future
improvements, enhancements and modifications thereof, and all releases and
upgrades related thereto.
(h) "Sale" and "Resale" and any grammatical variant thereof shall mean
and include, without limitation, sales, contracts for sale, conditional sales,
installment sales, rentals, leases or licenses of software to Banks, and any
other arrangement whereby the System is placed at the disposal of the Banks.
(j) "Software" means that portion of the System that is comprised of
computer applications programs intended to be processed in nFront's Internet
Banking Center.
(k) "Term" shall have the meaning set forth in Section 8.1 of this
Agreement.
ARTICLE II
BancTec Appointment
2.1 Appointment. During the Term of this Agreement, nFront hereby grants to
BancTec the non-exclusive right to market and promote the System to its Customer
Base and potential Bank customers of BancTec, and BancTec hereby accepts such
appointment. BancTec may market and promote the System anywhere in the
continental United States but shall have no right to market or promote the
system outside the United States. BancTec understands, acknowledges and agrees
that this appointment is non-exclusive as to both the System and the geographic
area and that nFront may appoint itself or through other resellers or agents,
resell or market the System in any geographic area. nFront expressly reserves
the right to sell and deliver the System to any other entity, including Banks.
BancTec shall market or promote the System only to Banks, and shall not market
and promote the System to other parties providing core processing services to
Banks, or to Bank service bureaus, software providers, other marketers of
automated bank services or to any other buyer who intends, directly or
indirectly, to resell or license the System. BancTec has no authority to appoint
any associate marketers or subdealers of the System without nFront's consent.
BancTec, in its sole discretion, will determine the manner in which BancTec
markets and promotes the System to its Customer Base and the potential Bank
customers of BancTec. Any Banks that desire to purchase the System will enter
into and sign an agreement directly with nFront. nFront will be solely
responsible for invoicing the purchasers, collecting payment, and providing all
installation, maintenance and support services to the purchasers.
2.2 Relationship between nFront and BancTec. BancTec shall perform its
obligations under this Agreement to market and promote the System as a principal
for its own account and at its own expense and risk. This Agreement does not in
any way create the relationship of principal and agent, or any similar
relationship between nFront and BancTec, including, but not limited to that of
joint ventures, partners or associates. BancTec is granted no right or authority
hereunder to assume or create any obligation or responsibility for or on behalf
of nFront or otherwise to bind or to use nFront's name other than as may be
expressly authorized by nFront.
ARTICLE III
Promotion of Sales, Service and Training and Related Obligations
3.1 Marketing and Promotion. BancTec shall use its commercially reasonable
efforts to market and promote the sale of the System by nFront, which
commercially reasonable efforts shall include, but not be limited to, promotion
of the System to the Customer Base and prompt performance of all of its
obligations under this Agreement.
3.2 Staffing and Training. BancTec shall appoint its technically suitable
employees to market and promote the System, and provide Bank and End User Sales
support. BancTec shall, at its sole cost and expense, send the
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appropriate sales personnel to such training programs and other refresher and
upgrade training as nFront may, at reasonable intervals, require. At BancTec's
request, nFront shall provide periodic routine consultation and advice to
BancTec in connection with BancTec's sales and service hereunder and shall
provide at BancTec's cost: (a) technical, specification and sales advice, (b)
assistance and advice concerning promotional and training programs, and (c)
suggestions for new applications for the System at BancTec's cost. nFront shall
furnish BancTec with a supply of price lists, sales literature, catalogues,
specifications for Generic Hardware, Documentation and advisory assistance with
respect to the System. All proprietary demonstration equipment, manuals,
instruction books, contract forms, sales and promotional materials,
Documentation and similar material furnished to BancTec by nFront, whether
furnished free of charge or not, shall remain the property of nFront and upon
request shall be returned to nFront by BancTec.
3.3 nFront to Maintain the System. BancTec acknowledges, understands and
agrees that the System that it shall market and promote to Banks shall remain on
nFront's servers, and that such Banks shall, through BancTec, gain access to the
System only upon execution of a contract with nFront. nFront shall be
responsible for systems maintenance of the System resident on its servers.
3.4 BancTec Promotional Activity. nFront shall not share in the expense of
any advertising or promotional activities by BancTec or other sales promotion
projects except by express agreement in writing. All materials prepared by
BancTec that market and promote the System, including, but not limited to, any
materials that include any trademark or trade name (or any xxxx or name closely
resembling the same) now or hereafter owned or licensed by nFront or any of its
affiliates shall be approved in writing by nFront prior to use.
3.5 nFront Recordkeeping. nFront shall keep records of its business
relating to the System as may be reasonably required by BancTec. BancTec or its
authorized representative may, from time to time during regular business hours,
examine such records and nFront's accounts relating to the sale and servicing of
the System.
ARTICLE IV
Conditions of Sale
4.1 Fees. The fees for accessing the System by a Bank and/or an End User
and the processing fees for services thereunder shall be as set forth in Exhibit
D ("Fees") attached hereto.
4.2 Invoicing. nFront shall invoice the Banks and/or the End Users for all
Fees associated with the System.
4.3 Marketing Commissions. As compensation for the performance of BancTec's
obligations under this Agreement, BancTec shall be entitled to receive the
percentage of fees actually received by nFront ("Marketing Commissions") as set
forth in Exhibit D attached hereto. nFront shall pay to BancTec the Marketing
Commissions within ten (10) days of the end of the month that nFront receives
receipt of payment by a Bank and/or an End User. BancTec shall receive Marketing
Commissions for each Bank that is (i) registered by BancTec as an active nFront
lead, and (ii) a member of BancTec's Customer Base (either as of the Effective
Date or during the Term of this Agreement) when that Bank buys the System from
nFront; provided, however, that BancTec shall not receive Marketing Commissions
for any Bank that has purchased the System from nFront before that Bank becomes
a member of BancTec's Customer Base.
4.4 Force Majeure. Neither party shall be liable for loss or damage due to
interruption of service or access to the System resulting from any cause beyond
its reasonable control, including, but not limited to, Internet systems or
network failure, capacity limitations, compliance with regulations, orders or
instructions of any federal, state or municipal government or any department or
agent thereof, acts of God, acts or omissions of the other party, acts of civil
or military authority, fires, strikes, facilities shutdowns or alterations,
embargoes, war, riot, delays in transportation, or inability to obtain necessary
labor, facilities or materials from usual sources. IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES DUE TO ANY SUCH CAUSE.
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4.5 Fee and System Changes. nFront shall have the right to change the
System without notice to BancTec, and shall have the right at any time to
discontinue the sale of any version of the System, to make changes in method of
access or delivery, including interface procedures, and to add improvements, all
without incurring any liability whatever. nFront may change its fees to End
Users for the System upon thirty (30) days' written notice to End Users.
4.6 Taxes and Other Fees. nFront shall pay all license fees, sales, use,
service use, occupation, personal property and excise taxes and any other fees,
assessments or taxes which may be assessed or levied by any federal, state or
local government and any departments and subdivisions thereof, against any of
the Systems ordered by an End User or under BancTec's direct or indirect
control.
ARTICLE V
Warranties
5.1 nFront's Warranty. nFront represents and warrants that the Software is
Year 2000 Compliant. For the purposes of this Agreement, "Year 2000 Compliant"
shall mean that the Software will: (i) report and display all dates, including
dates occurring before and after the year 2000, with a four-digit date; and (ii)
handle all leap years, including but not limited to the Year 2000 leap year,
correctly; provided, however, that nFront shall not be responsible or liable for
any date errors caused or contributed to by any third party software, any
operating systems, or any hardware. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION
5.1 THE SYSTEM IS PROVIDED "AS-IS", "WHERE-IS". NFRONT SPECIFICALLY DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS TO THE
NHOME SYSTEM PROVIDED UNDER THIS AGREEMENT.
ARTICLE VI
Special Agreements Regarding Software and Other Intellectual Property
6.1 Limited License. In the performance of BancTec's obligations hereunder,
it shall be necessary for BancTec to demonstrate the System. Accordingly,
subject to the terms and conditions contained herein, nFront hereby grants to
BancTec, and BancTec hereby accepts from nFront, a non-exclusive license (the
"License") of the Software solely for the purpose of demonstrating the System in
operation to potential Bank customers of BancTec.
6.2 Software Covenants. BancTec agrees to comply with each of the following
requirements:
(a) BancTec shall not copy, alter, modify, translate, decompile,
disassemble, reverse engineer or otherwise attempt to derive source code, or
create derivative works of the Software, or any part thereof, or knowingly allow
others to do so, during or after the Term.
(b) Except as otherwise specifically provided in this Agreement,
BancTec shall not loan, rent, lease, give, sub-license, or otherwise transfer,
nor communicate or otherwise disclose, the Software, including any part or any
copy thereof, in whole or in part, to any person.
(c) The Software, including all parts thereof, and any copies, in whole
or in part, and any and all copyrights thereto, are and remain the property of
nFront, irrespective of the ownership of the media on which such Software and
any parts or copies thereof are contained.
(d) Each copy of the Software sold to Banks by nFront shall include a
license agreement, the form of which shall be as set forth in the Exhibit E.
(e) BancTec acknowledges that the laws and regulations of the United
States restrict the export and re-export of commodities and technical data of
United States origin, including the System. BancTec agrees that it shall not
export or re-export such Software in any form without nFront's consent, which
consent shall, among other things be conditioned upon BancTec receiving the
appropriate United States and foreign government licenses and approvals.
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(f) BancTec shall not, by any act or omission, impair or prejudice the
copyright or any other right of whatever nature of nFront in and to the System
or any part thereof, and shall not deal with the same in any manner which may
allow any third party to obtain any rights in the same which are inconsistent or
which conflict with the rights of nFront.
6.3 Notices; Markings; Trademarks; Tradenames. BancTec agrees to comply
with the following:
(a) BancTec shall not delete any trademarks, tradename or copyright
notice present in, on or displayed by the System, or any part thereof.
(b) BancTec shall not add to any notice present in, on or displayed by
the System its own copyright, trademark or other proprietary notices unless such
notices have been previously approved in writing by nFront.
(c) Except as already present in, on or displayed by the System
software and/or accompanying packaging or Documentation provided by nFront,
BancTec shall not use any trademarks and/or tradenames of nFront without prior
written approval of nFront.
6.4 Documentation. Each System sold by nFront to a Bank shall include one
(1) set of accompanying Documentation. nFront shall only distribute complete and
separate copies of the Documentation to Banks and shall not reproduce, in whole
or in part, or transfer in any manner to a third party other than a Bank, such
Documentation. Any and all copyrights to such Documentation are and shall remain
the property of nFront.
ARTICLE VII
Confidentiality and Non-Disclosure
7.1 BancTec Obligations.
(a) BancTec recognizes, acknowledges and agrees that during the Term of
this Agreement, nFront may furnish to BancTec certain technical and commercial
information that is proprietary and of value to nFront and that is generally not
known to nFront's competitors or the general public, which information includes,
but is not limited to, designs, procedures, formulas, discoveries, inventions,
improvements, innovations, concepts and ideas, lists of customers, computer
programs, business methods, and plans for future developments ("nFront's
Confidential Information"). BancTec recognizes, acknowledges and agrees that
nFront's Confidential Information is to be maintained in secrecy and confidence
by BancTec and BancTec's employees, agents or representatives to whom BancTec
discloses any of nFront's Confidential Information. BancTec agrees for itself
and for each of its employees, agents or representatives to whom BancTec
discloses any of nFront's Confidential Information that such information shall
be used only in accordance with the terms, covenants, conditions and limitations
of this Agreement, and not for the benefit of or for, directly or indirectly,
BancTec or any of its employees, agents or representatives. Information made
available to the general public by nFront and information obtained from third
parties not associated with nFront shall not be considered to be nFront's
Confidential Information, except for information received from third parties
that BancTec knows or should have known was obtained illegally or in violation
of this Agreement. Information disclosed to BancTec by nFront that was
previously known to BancTec (and that can be proven to have been previously
known to BancTec) shall not be considered to be nFront's Confidential
Information. In the event BancTec or a representative of BancTec is requested by
law, order of court or any agency to disclose any of nFront's Confidential
Information, BancTec shall give nFront prompt notice of such request so that
nFront may seek an appropriate protective order. If, in the absence of a
protective order, BancTec or a representative of BancTec is nonetheless
compelled by law to disclose any of nFront's Confidential Information, BancTec
or a representative of BancTec, as the case may be, may disclose such
information in such proceeding without liability hereunder; provided, however,
that BancTec gives nFront written notice of the information to be disclosed
within five (5) business days after receipt of such order by BancTec and, upon
nFront's request and at its expense, BancTec shall use its best efforts to
obtain assurances that confidential treatment shall be accorded to such
information.
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(b) In the event this Agreement is terminated for any reason, upon
receipt of nFront's written request, BancTec agrees to return promptly nFront's
Confidential Information, including all copies thereof, to nFront, or to deliver
all such information promptly to such party as may be designated by nFront.
BancTec further agrees thereafter not to use or disclose nFront's Confidential
Information in any manner whatsoever without the prior written approval of
nFront unless and until such information shall lawfully become generally known
in the public domain through no fault of the BancTec or breach by the BancTec of
the covenants contained herein.
(c) BancTec shall disclose nFront's Confidential Information to Banks
without nFront's written permission.
7.2 nFront's Obligations.
(a) nFront recognizes, acknowledges and agrees that during the Term of
this Agreement, BancTec may furnish to nFront certain technical and commercial
information that is proprietary and of value to BancTec and that is not
generally known to BancTec's competitors or the general public, which
information includes, but is not limited to designs, procedures, formulas,
discoveries, inventions, improvements, innovations, concepts and ideas, lists of
customers, computer programs, business methods, and plans for future
developments ("BancTec's Confidential Information"). nFront recognizes and
agrees that, except as otherwise provided herein, BancTec's Confidential
Information is to be maintained in secrecy and confidence, except as provided
herein, and used only in accordance with the terms, covenants, conditions and
limitations of this Agreement. Information made available to the general public
and information obtained from third parties not associated with BancTec shall
not be considered to be BancTec's Confidential Information, except for
information received from third parties that nFront knows or has reason to know
was obtained illegally or in violation of this Agreement. Information disclosed
to nFront by BancTec that was previously known to nFront (and that can be proven
to have been previously known to nFront) shall not be considered to be BancTec's
Confidential Information. In the event nFront or a representative of nFront is
requested by law, order of court or any agency to disclose any of BancTec's
Confidential Information, nFront shall give BancTec prompt notice of such
request so that BancTec may seek an appropriate protective order. If, in the
absence of a protective order, nFront or a representative of nFront is
nonetheless compelled by law to disclose any of BancTec's Confidential
Information, nFront or a representative of nFront, as the case may be, may
disclose such information in such proceeding without liability hereunder;
provided, however, that nFront gives BancTec written notice of the information
to be disclosed within five (5) business days after receipt of such order by
nFront and, upon BancTec's request and at its expense, nFront shall use its best
efforts to obtain assurances that confidential treatment shall be accorded to
such information.
(b) In the event this Agreement is terminated for any reason, upon
receipt of BancTec's written request, nFront agrees to return promptly BancTec's
Confidential Information, including all copies thereof, to BancTec or to deliver
all such information promptly to such party as may be designated by BancTec.
nFront further agrees thereafter not to use or disclose BancTec's Confidential
Information in any manner whatsoever without the prior written approval of
BancTec unless and until such information shall lawfully become generally known
in the public domain through no fault of nFront or breach by nFront of the
covenants contained herein.
ARTICLE VIII
Term and Termination
8.1 Term. This Agreement shall commence as of the Effective Date hereof and
shall remain in effect (unless sooner terminated pursuant to Section 8.2 hereof)
for five (5) years (the "Term"). It shall be renewed automatically without
interruption for successive five-year terms, unless, not less than sixty (60)
days before the end of any Term, either nFront or BancTec notifies the other
party in writing of its election (at its sole option, for any reason or for no
reason) not to renew. Any such renewal periods shall be considered an extension
of and part of the Term of this Agreement.
8.2 Right to Terminate. Notwithstanding any other provision hereof, this
Agreement may be terminated either (i) by mutual agreement of the parties
hereto; (ii) by either party at any time if the other party has materially
breached any of the provisions hereof and, has failed to cure such alleged
breach within thirty (30) days after written notice thereof in
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the case of failure to pay when due amounts owing to such party, and within
sixty (60) days in case of all other alleged curable breaches; or (iii) by
either party immediately and without the giving of notice, in the event that
either party shall become insolvent, or shall ask its creditors for a
moratorium, or shall file a voluntary petition in bankruptcy, or shall be
adjudicated as a bankrupt pursuant to an involuntary petition, or shall suffer
appointment of a temporary or permanent receiver, trustee, or custodian for all
or a substantial part of its assets which shall not be discharged within sixty
(60) days. Notwithstanding the foregoing, any violation of Articles VI or VII
hereof, this Agreement shall be immediately terminable by the non-breaching
party.
8.3 Effect of Termination.
(a) Any termination of this Agreement shall not release either party
from paying any amount which may then be owing to the other party. Either party
may offset and deduct from any or all amounts owed to the other party, if any,
any or all amounts owed by the other party, rendering to the other party the
excess, if any.
(b) In the event of termination of this Agreement by either party or
automatically as provided herein, it is understood that nFront shall not have
any obligation to provide further access to BancTec's Customer Base beyond
nFront's obligations contained in nFront's agreements with Banks that were
entered into prior to termination of this Agreement, however if nFront continues
to provide access to all or any part of BancTec's Customer Base after
termination of this Agreement, such continuation shall not be construed as a
renewal of this Agreement for any further term nor as a waiver of such
termination.
(c) Upon termination of this Agreement, upon receipt of nFront's
written request, BancTec shall return to nFront, promptly and without charge to
nFront, all Documentation, price lists, maintenance and policy manuals, sales
aids and other publications of nFront relating to the System that BancTec has on
hand. BancTec shall thereupon promptly cease using any trademarks, tradenames,
service marks or other identifying marks owned or controlled by nFront on any of
its materials.
(d) BancTec shall be solely responsible for all commitments incurred or
assumed by BancTec during the Term of this Agreement or thereafter to BancTec's
Customer Base, and nFront shall not be held responsible in any manner therefor,
irrespective of any suggestion or recommendation with respect thereto by nFront
or any of its employees or representatives unless nFront has expressly agreed in
writing to assume the responsibility.
ARTICLE IX
Exclusivity Provision
9.1 Exclusivity Provision. If during the Term of the Agreement, BancTec
directly or indirectly, individually, on behalf of any other person or legal
entity, or for or on behalf of any person, corporation, partnership, company,
trade association, agent, agency or other entity, engages in the business of
selling or distributing any Internet Banking solution for BancTec's data center
business other than the System, then nFront shall have the right to terminate
this Agreement by giving BancTec ninety (90) days prior written notice. BancTec
is not precluded from providing interfaces to other Internet banking solutions
upon Customer's request, however, nFront retains such termination rights if
BancTec receives revenue from any outside Internet banking vendor other than
nFront for such interface or processing. Notwithstanding the above, should
BancTec acquire (or be acquired by) a transaction processing business who has a
substantially similar agreement with an alternate Internet banking provider,
this Agreement will not limit BancTec's rights to generate revenue from the
acquired (or acquiring) base.
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ARTICLE X
Indemnification; Other Relief
10.1 Indemnification by BancTec. Subject to the limitations set forth in
Section 10.5 of this Agreement, BancTec shall indemnify, defend and hold
harmless nFront, its officers, directors, shareholders, employees, agents and
affiliates from and against any claims, losses, damages, liabilities or expenses
(including, without limitation, reasonable attorneys' fees and expenses)
(collectively, "Claims") resulting from or arising out of BancTec's gross
negligence and willful misconduct with respect to the System or any part thereof
or any misrepresentations with respect to the System, provided, however, that in
respect of any Claims hereunder against BancTec that arise out of or result from
any alleged gross negligence and/or willful misconduct of BancTec or any alleged
misrepresentation made by BancTec with respect to the System, BancTec shall be
notified promptly of such Claim in writing and shall be given authority, control
and full and proper information and assistance in the defense and settlement of
such Claim. Notwithstanding the foregoing, BancTec shall not have the authority
to settle or compromise any Claim in a manner that indicates that nFront
contributed to or was responsible for the cause of any such Claim unless nFront
consents in writing to such settlement.
10.2 Indemnification by nFront.
(a) Subject to the limitations set forth in Section 10.5 of this
Agreement, nFront shall indemnify, defend and hold harmless BancTec, its
officers, directors, shareholders, employees, agents and affiliates from and
against claims, losses, damages, liabilities or expenses (including, without
limitation, reasonable attorneys' fees and expenses) resulting from or arising
out of nFront's gross negligence and/or willful misconduct with respect to the
System or any part thereof or any misrepresentations made by nFront with respect
to the System, provided, however, that in respect of any claim, suit or
proceeding hereunder against nFront that arise out of or result from any alleged
gross negligence and/or willful misconduct of nFront or any alleged
misrepresentation made by nFront with respect to the System, nFront shall be
notified promptly of such claim, suit or proceeding in writing and is given
authority, control and full and proper information and assistance in the defense
and settlement of such claim, suit or proceeding. Notwithstanding the foregoing,
nFront shall not have the authority to settle or compromise any Claim in a
manner that indicates that BancTec contributed to or was responsible for the
cause of any such Claim unless BancTec consents in writing to such settlement.
(b) Subject to the limitations set forth in Section 10.5 hereof, nFront
shall indemnify, defend and hold harmless BancTec, its officers, directors,
shareholders, employees, agents and affiliates from and against any claim, suit
or proceeding based upon an allegation that the System (or any portion thereof)
infringes upon or misappropriate any copyright, patent, trademark or trade
secret of any third party, provided that nFront is notified promptly of such
claim, suit or proceeding in writing and is given authority, control and full
and proper information and assistance in the defense and settlement of such
claim, suit or proceeding. If the System is finally determined by a court of
competent jurisdiction to constitute an infringement of any patent, copyright,
trademark or other trade secret of a third party and its use is enjoined, nFront
shall either:
(i) procure the right for End Users to continue to use
the System; or
(ii) replace or modify the System with an equivalent
version of the System that is not so infringing.
10.3 Arbitration. The parties to this Agreement agree that any controversies
or claims arising out of or relating to this Agreement (including, without
limitation, any alleged breach thereof or the termination or non-renewal
thereof) shall be settled by arbitration pursuant to the Federal Arbitration
Act, 9 U.S.C. ss. 1 et. seq., in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. The parties hereto further agree
that the arbitrators in any such arbitration shall not be authorized to award
any punitive damages in connection with any controversy or a claim settled by
arbitration hereunder. The decision of the arbitrator in any such arbitration
shall be final and binding upon the parties and judgment upon the award may be
entered in any court having jurisdiction thereof. Any arbitration shall take
place in Atlanta, Georgia if the arbitration is initiated by BancTec and in
Dallas, Texas if the arbitration is initiated by nFront, and the expenses of the
arbitrators shall be allocated by such arbitrators.
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The arbitration shall be conducted before a panel of three (3) arbitrators, one
selected by BancTec, one selected by nFront, and one selected by mutual
agreement of the arbitrators selected by BancTec and nFront.
10.4 Injunctive Relief. Notwithstanding the provisions of Section 10.3
hereof, the parties acknowledge and agree that any breach of the provisions of
Articles VI or VII of this Agreement shall result in irreparable harm to a party
for which no adequate remedy at law exists. Accordingly, upon any such breach, a
party shall be entitled to seek injunctive or other appropriate extraordinary
relief, such relief being in addition to, and not in lieu of, any other rights
and remedies, including the award of damages, available at law or in equity. Any
violation of the restraints set forth herein shall automatically extend the
period of such restraints for the amount of time such violation continues,
provided that a party seeks enforcement promptly after discovery of such
violation. nFront shall not be required to prove money damages to seek
injunctive relief under this Agreement.
10.5 LIMITATION OF LIABILITY. (a) IN NO EVENT SHALL NFRONT BE LIABLE FOR ANY
LOSS OF PROFIT OR ANY OTHER INDIRECT COMMERCIAL DAMAGE, INCLUDING BUT NOT
LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER
ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE NHOME
SYSTEM OR NON-DELIVERY OF NHOME SYSTEM EVEN IF NFRONT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR NFRONT'S OBLIGATION TO INDEMNIFY BANCTEC
UNDER SECTION 10.2 ABOVE, IN NO EVENT SHALL NFRONT'S LIABILITY TO BANCTEC FOR
ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE GREATER OF (i) THE AMOUNT OF
MARKETING COMMISSIONS DUE AND OWING TO BANCTEC, OR (ii) $25,000.
(b) IN NO EVENT SHALL BANCTEC BE LIABLE FOR ANY LOSS OF PROFIT OR ANY
OTHER INDIRECT COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF ACTION
ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE SYSTEM OR NON-DELIVERY EVEN IF
BANCTEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR
BANCTEC'S OBLIGATION TO INDEMNIFY NFRONT UNDER SECTION 10.1 ABOVE, IN NO EVENT
SHALL BANCTEC'S LIABILITY TO NFRONT FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT
EXCEED THE GREATER OF (i) THE AMOUNT OF MARKETING COMMISSIONS PAID TO BANCTEC
WITHIN THE THREE (3) MONTH PERIOD PRIOR TO THE ACCRUAL OF THE CLAIM, OR (ii)
$25,000.
ARTICLE XI
Miscellaneous Provisions
11.1 Waiver. Any failure of a party to comply with any obligation, covenant,
agreement or condition herein may be expressly waived in writing by the other
party, but such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
11.2 Entire Agreement. This Agreement, the exhibits and schedules hereto
constitutes the entire understanding of the parties with respect to the subject
matter of this Agreement and are intended to supersede all prior understandings,
whether written or oral, between the parties with respect thereto.
11.3 No Third Party Beneficiary Rights. No provision of this Agreement is
intended or shall be construed to provide or create any third party beneficiary
right or any other right of any kind in any Bank or any client, customer,
affiliate, insurer, lender, shareholder, partner, officer, director, employee or
agent of any party hereto, or in any other person.
11.4 Amendment; Binding Effect; Assignment. No amendment, modification or
alteration of the terms of this Agreement shall be binding unless in writing and
executed by the parties hereto. This Agreement shall be binding upon
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and inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, heirs, executors and administrators. Neither
party may assign this Agreement, in whole or in part, or any of its rights or
obligations hereunder without the prior written consent of nFront, and any such
attempted assignment shall be void. Notwithstanding the foregoing, nFront may
freely and without the consent of BancTec assign this agreement in connection
with the sale of all or substantially all of its assets or a merger or similar
amalgamation.
11.5 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Georgia, without giving
effect to the conflict of laws principles thereof.
11.6 Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the Term
of this Agreement, such provision shall be fully severable. This Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part of this Agreement, and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement.
11.7 Counterparts. This Agreement may be executed simultaneously or in two
or more counterparts, each of which together shall constitute one and the same
instrument and shall be deemed an original hereof.
11.8 Notices. All notices required or permitted under this Agreement shall
be made in writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail (return receipt requested),
U.S. mail or facsimile. All notices shall be addressed to the parties at the
respective addresses indicated above.
11.9 Survival. The provisions of Articles VI, VII, VIII, X and XI shall
survive any termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
NFRONT, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------
Its: Chairman/CEO
Date: 1/19/99
BANCTEC USA, INC.
By: /s/ XX Xxxxx
--------------------------
Its: VP
Date: 1/20/99
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EXHIBIT D - FEES
nHome nBusiness nHome and BancTec
*thru 5/31/99 nBusiness Commission
--------- ------------- --------- ----------
IMPLEMENTATION FEE - NEW CUSTOMERS
Assets $0 - $50 M $ [++++] $ [++++] $ [++++] 40% footnote
Assets $50M - $100M $ [++++] $ [++++] $ [++++] 40% footnote
Assets $100M - $300M $ [++++] $ [++++] $ [++++] 40%
Assets $300M - $500M $ [++++] $ [++++] $ [++++] 40%
Assets $500M - $1B $ [++++] $ [++++] $ [++++] 40%
Assets $1B - $2B $ [++++] $ [++++] $ [++++] 40% footnote
Assets $2B & Up $ [++++] $ [++++] $ [++++] 40%
MONTHLY MAINTENANCE FEE
From 11/1/98 to 1/31/99 $ [++++] $ [++++] $ [++++] 20%
From 2/1/99 to 4/30/99 $ [++++] $ [++++] $ [++++] 20%
After 5/1/99 $ [++++] $ [++++] $ [++++] 20%
PER CUSTOMER FEES
Customer Monthly Fee $ [++++] $ [++++] 20%
New Customer Setup - One Time $ [++++] $ [++++] 20%
TRANSACTION FEES
nBranch Product and Service Fees $ [++++] $ [++++] n/a
ACH Draft $ [++++] n/a
ACH Disbursement $ [++++] n/a
Direct Deposit $ [++++] n/a
Book Transfer $ [++++] n/a
Wire Transfer $ [++++] n/a
Stop Pay $ [++++] n/a
EFTPS - same day request $ [++++] n/a
EFTPS - pass through ACH $ [++++] n/a
Controlled Disbursement (per day) $ [++++] n/a
Cash Concentration $ [++++] n/a
XXXX PAYMENT
Monthly Fee/Account $ [++++] Included n/a
Per Payment (Internet or Phone) $ [++++] $ [++++] n/a
Customer Setup $ [++++] included n/a
Canceled Check Copy $ [++++] $ [++++] n/a
NSF Fee $ [++++] $ [++++] n/a
Stop Pay Fee $ [++++] $ [++++] n/a
Additional User Kits $ [++++] $ [++++] n/a
Telephone Xxxx Payment Setup Fee (One Time) $ [++++] $ [++++] $ [++++] n/a
Telephone Xxxx Payment Monthly Maint. Fee $ [++++] $ [++++] $ [++++] n/a
Telephone Xxxx Payment Communications Quote Quote
CHECK IMAGING
DSI Setup Fee Quote Quote n/a
Greenway Setup Fee Quote Quote n/a
Per Check Image Fee Quote Quote n/a
Check Imaging Communications Charges Quote Quote n/a
OPTIONS
nReach Data Mining Reports (Per Report) $ [++++] $ [++++] n/a
nForm Multimedia Presentation (10 Frames) $ [++++] $ [++++] 40%
Site Map Construction $ [++++] $ [++++] $ [++++] 40%
Management Reporting (Per Month) $ [++++] $ [++++] 20%
Internet TV Site Quote n/a
Employee Training Program $ [++++] n/a
Jump Start Marketing And Promotion Program $ [++++] n/a
Footnote: commissions on Implementation Fees are paid net of 3rd party expenses
to Xxxx Payment provider
PRICES EFFECTIVE 1/19/99 CONFIDENTIAL - DO NOT REPRODUCE
