EXHIBIT 10.6
LICENSE AGREEMENT # 1196-0001
LICENSE AGREEMENT
THIS AGREEMENT made and executed this 5th day of September, 1997 between
XXXX XXXXX & ASSOCIATES, INC. ("XXX") X.X. Xxx 000, 000 Xxxxxxx 00, Xxxxxx,
XX 00000 and SPECTRUM BANC SERVICE CORPORATION ("LICENSEE") having its
principal office at 00 Xxxxx Xxxxxx XX, Xxxxxxxxx, Xxxxx Xxxxxx 00000.
WITNESSETH:
WHEREAS, XXX is engaged in the business of providing various services
relating to the design of computer software programming for use by financial
institutions; and
WHEREAS, Licensee is a financial institution engaged in providing
various financial services; and
WHEREAS, Licensee agrees to obtain from XXX, and XXX by its execution of
this Agreement, agrees to furnish to Licensee on the terms and conditions
contained herein, all of the computer software and services detailed in
Exhibit A which is specifically made part of this Agreement;
NOW, THEREFORE, in consideration of the premises and in further
consideration of the performance of the terms and provisions herein
contained, XXX and Licensee do hereby contract and agree as follows:
1. SOFTWARE DEFINITION. In this Agreement Software shall mean only
the computer application programs, manuals, specifications, other
documentation or services itemized in Exhibit A, together with all fixture
releases, modifications and customization furnished or performed by XXX; in
any printed, machine readable or other form including but not limited to
listings, manuals, and magnetic media.
2. FEES. Licensee agrees to pay to XXX the fees, payments and
expenses set out in attached Exhibit A, for the licensed use of computer
Software programs and services described in said Exhibit A.
In addition to fees and payments provided for in this Agreement,
Licensee will promptly reimburse XXX for all actual, out-of-pocket expenses
including but not limited to travel, lodging, meals, telephone, postage and
shipping costs; together with any taxes related to this Agreement that might
be levied by any governmental body against XXX, other than personal property
taxes or income taxes.
Licensee will pay XXX one and one-half percent (1 1/2%) interest per
month (18% annual), plus all attorney fees and expenses actually incurred by
XXX in collecting any delinquent or past due fees, payments or reimbursements
of any kind due XXX by Licensee.
3. LICENSE. XXX hereby grants and Licensee accepts a non-transferable
and non-exclusive license (the "License") to use the Software described in
Exhibit A for the original term and all renewals of this Agreement.
The License granted herein is restricted as follows:
The Software will be used only to process data of those financial
institutions listed in Exhibit B hereto, on IBM AS/400 equipment operated
only by Licensee employees or the employees of such financial institutions.
Additional license fees for processing data for additional financial
institutions, other than those listed on Exhibit B, and for processing
acquisitions by any of the financial institutions listed on Exhibit B, on XXX
Software as described in Exhibit A, will be determined by an addendum to this
Agreement.
The License and the Software may not be assigned, sublicensed, or
otherwise transferred or copied in any manner by Licensee without prior
written consent from XXX.
Licensee agrees not to remove or alter proprietary notices of XXX on any
of the materials associated with the Software.
Licensee shall use the Software only at the site locations of Licensee
or the financial institutions that are described in Exhibit B hereto. However
off-site testing and/or disaster processing is permitted provided the
owner/operator of the off-site facility has signed JHA's Confidentiality
Agreement, and XXX is promptly notified by Licensee.
Licensee also covenants and warrants to XXX that all other financial
institutions being processed and off-site test/disaster facilities will
conform to, abide by and be governed and bound by this License Agreement the
same as though they were a signing Licensee. Licensee accepts full
responsibility and liability to XXX for any violation or breach of this
License Agreement by any other financial institution being processed by
Licensee and an off-site test/disaster facility used by Licensee. If
Licensee or any other financial institution being processed by Licensee or
off-site test/disaster facility violates or breaches this or any other
written Agreement it has with XXX or any of its subsidiaries, and such
violation or breach is not corrected within thirty days after Licensee
receives written notice thereof from XXX, then XXX may terminate Licensee's
license to use the Software, and Licensee will cease using the Software and
will return all of same to JRA. Licensee further covenants and warrants to
XXX that neither Licensee, nor any of its affiliated companies, nor any
financial institutions processed by Licensee, will employ, in any capacity,
any personnel of XXX or any of its
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affiliated companies within one year of their employment termination from XXX
or any of its affiliated companies, unless XXX consents in writing.
4. WARRANTIES. XXX warrants that unmodified Software will operate in
accordance with the then current documentation provided by XXX. This warranty
is valid for sixty (60) days from the date of last initial installation of
all of said Software. Under this warranty, XXX will correct any program
errors in the unmodified Software at no extra charge to Licensee. THIS
WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES. EXPRESS OR IMPLIED, OR
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL XXX BE LIABLE FOR INDIRECT, CONSEQUENTIAL, PUNITIVE OR
SPECIAL DAMAGES.
5. PROPRIETARY PRODUCT. All Software, customization, modification,
releases and optional modules furnished now or hereafter by JIHA to Licensee,
shall be and remain the property of XXX, subject to the rights of the
Licensee as defined in this Agreement.
6. TERM. This Agreement grants the Licensee a non-exclusive, paid-up
license to use the Software described in Exhibit A, in the manner provided in
paragraph 3 above, for twenty-five (25) years immediately subsequent to the
date of this Agreement, except as modified by conditions described in
paragraph 9 of this Agreement.
7. TRADE SECRET. Licensee hereby acknowledges that the Software
provided by XXX under this Agreement is a trade secret of XXX, and as such is
protected by civil and criminal law, is very valuable to XXX, and that its
use must be carefully and continuously controlled. In accordance with the
aforesaid, Licensee agrees to use the highest standard of diligence to ensure
the confidentiality of the Software, and will, prohibit the unauthorized
access to, use or duplication of any of the Software. Licensee agrees to
keep all machine-readable Software in a secure place which is as secure as
Licensee provides for its most confidential-materials. Licensee will not
cause, permit nor allow the Software or materials provided by XXX to be
copied, duplicated, transcribed, reverse engineered, sold to, revealed to, or
used by any other person, firm or company without prior written consent of
XXX. Licensee agrees to notify XXX immediately of the unauthorized
possession, use or knowledge of any item supplied under this Agreement by any
person or organization not authorized by this Agreement to have such
possession, use or knowledge. Licensee will promptly furnish XXX full
details of such possession, use or knowledge, and will cooperate fully within
any litigation against third parties deemed necessary by XXX to protect its
proprietary rights. Licensee's compliance with the above shall not be
construed in any way as a waiver of JHA's right to recover damages or obtain
other relief against Licensee for its negligent or intentional harm to JHA's
proprietary rights or for breach of contractual rights. If Licensee attempts
or allows others to attempt to use, copy, duplicate, transcribe or convey the
items supplied by XXX pursuant to this Agreement, in a manner contrary to the
terms of this Agreement or in derogation of JHA's proprietary rights, whether
these
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rights are explicitly herein stated, determined by law, or otherwise, XXX
shall have, in addition to any other remedies available to it at law or
equity, the right to injunctive relief enjoining such actions, Licensee
hereby acknowledging that irreparable harm will occur to XXX and that other
remedies are inadequate. This paragraph will survive expiration or
termination of this Agreement.
8. COMPLIANCE WITH LAWS. Licensee assumes all responsibility in
assuring compliance with all regulations relating to Licensee's use of the
Software.
9. BUSINESS TERMINATION. At JHA's option, all of Licensee's rights
under this Agreement shall terminate, and the Software shall be returned to
XXX if the ownership or management of Licensee or any of its subsidiaries
changes by reason of voluntary or involuntary bankruptcy, receivership,
conservatorship, custodianship, assignment for benefit of creditors, seizure
of assets, liquidation, dissolution, ceasing to do business, or action by
FDIC, RTC or other State or Federal authorities which would divest control
from present ownership and management of Licensee.
In the event XXX ceases to do business, the successor to JHA's assets
will be bound by this Agreement the same as XXX, and Licensee may continue to
use the Software under all the terms and conditions of this Agreement. If
there is no successor to JHA's assets, then the Software shall become the
non-exclusive proprietary product of Licensee subject to all of the
confidentiality restrictions described in paragraph 7 above; except that
Licensee may reveal Software and/or materials to third parties for the sole
purpose of maintenance and customization of the Software for the sole use of
Licensee, provided said third parties have signed similar written
confidentiality restrictions.
10. CONFIDENTIALITY. XXX and Licensee each agree that all information
communicated to it by the other, including the terms and conditions of this
Agreement, whether before the effective date or during the term of this
Agreement, shall be received in strict confidence, shall be used only for the
purposes of this Agreement, and that no such information shall be disclosed
by the recipient party, its agents or employees without prior written consent
of the other party, unless such information is publicly available from other
than a breach of this provision. Each party agrees to take all reasonable
precautions to prevent the disclosure to outside panics of such information,
including without limitation, the terms of this Agreement except as may be
necessary by reason of legal, accounting or regulatory requirements beyond
the reasonable control of XXX or Licensee, as the case may be.
11. DELIVERY. Delivery of said Software shall be at a time mutually
agreed upon by XXX and Licensee, but in no instance shall such date be longer
than ninety (90) days following the execution of this Agreement.
12. MODIFICATION. Licensee may modify source code or procedures, but
shall notify XXX in writing of any modifications so made.
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13. STATUTE OF LIMITATIONS. No action arising out of this Agreement
may be brought by Licensee or XXX more than two years after the cause of
action has accrued, and the injured party has actual knowledge of the accrual.
14. COMPLETE AGREEMENT. This document contains the entire agreement
between the parties with respect to the transactions contained herein, and it
may be modified or altered only by a written instrument signed by all parties
hereto. Attached Exhibits A and B are part of this Agreement.
15. HEADINGS. The headings of each paragraph contained herein are
provided only for convenience and shall not be deemed controlling.
16. BINDING. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective assigns and successors.
17. ASSIGNABILITY. This Agreement shall not be transferable or
assignable by Licensee without prior written consent by XXX. However,
Licensee may assign its rights and obligations under this Agreement by
written document, to which XXX is a signing party, to any holding company
which becomes a majority stockholder or parent company of Licensee by
voluntary action and with the written approval of Licensee and its
stockholders. In this event, both Licensee and the assignee shall be
responsible and liable to XXX for the performance of the obligations and
duties of Licensee pursuant to this Agreement.
18. GOVERNING LAW. This Agreement shall be governed by, construed and
enforced under, and subject to, the laws of the State of Missouri. If any of
the provisions of this Agreement are invalid under any applicable statute or
rule of law, they are, to that extent, deemed omitted. Such omission does
not change the intent or binding nature of any or all of the rest of this
Agreement.
19. SERVICES. At Licensee's request XXX will provide the following
services:
(a) Software customization and/or modification, to the extent
possible with Licensee's equipment and the Software. Licensee accepts
responsibility for any requested customization and modification.
(b) Training and education for Licensee's employees concerning the
operation and use of the Software.
(c) Consultation concerning Licensee's electronic data processing
needs, problems and solutions.
(d) Licensee will promptly pay XXX its then current fees for services
performed per (a), (b) and (c) above plus all associated out-of-pocket
expenses. As of the date of this Agreement the current fees for items (a),
(b) and (c) above are listed in attached Exhibit A.
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20. INSTALLATION. XXX will install said unmodified Software at
Licensee's principal office so it will properly operate on Licensee's IBM
computer, as specified on Exhibit A and will assist Licensee in converting
the financial institutions listed in Exhibit B to the Software system.
Licensee will furnish data needed and requested by XXX, and will co-operate
with and assist XXX personnel in the installation and conversion of said
Software. For the installation and conversion of said Software, Licensee
agrees to pay JHA's current fees as described in Exhibit A attached hereto.
No hourly charge will be made for XXX personnel for travel or transportation
time. All installation and conversion charges and out-of-pocket expenses
will be billed monthly and promptly paid by Licensee. JHA's current billing
terms are payable upon receipt. A one and one-half percent (1 1/2%) interest
charge per month (18% per annum) will be added to delinquent accounts.
21. LIMITATION OF LIABILITY. XXX shall not be liable to Licensee or
any other person, firm or company, for failure to fulfill its obligation
hereunder due to an event of "force majeure" (herein defined as acts of God,
public disaster, fire, flood, riot, war, labor strikes/disputes, judicial
orders/decrees, government laws/regulations, or interruptions of
communications, transportation or electricity). Any liability of XXX for any
loss, damage, or cost hereunder shall be limited to actual direct damages
incurred by Licensee, but in no event shall the aggregate of liability exceed
the total license fees paid by Licensee to XXX under paragraph 2 above, nor
shall any amount of the liability include any indirect, consequential,
punitive or special damages incurred by Licensee.
22. SUPERSEDES. This Agreement supersedes all prior agreements, if
any, for the licensed use of or the support/maintenance of other XXX software
or products.
23. NOTICE. Any notices under this Agreement shall be written and
shall be deemed delivered when actually received, or three days after they
are deposited with the United States Postal Service, certified-mail return
receipt requested when addressed to the other party at its above address,
which may be changed by written notice.
24. COUNTERPARTS. Two (2) duplicate originals of this Agreement are
executed with each party retaining one (1) copy.
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IN WITNESS WIEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
(Seal) XXXX XXXXX & ASSOCIATES, INC.
ATTEST: 000 Xxxxxxx 00 - X.X. Xxx 000
Xxxxxx, XX 00000
(XXX)
By: By:
------------------------------- -------------------------------
----------------------------------
Print/Type Name
Title:
-------------------------------
Date:
-------------------------------
(Seal) SPECTRUM BANC SERVICE
ATTEST: CORPORATION
00 Xxxxx Xxxxxx XX
Xxxxxxxxx, Xxxxx Xxxxxx 00000
(LICENSEE)
By: By:
------------------------------- -------------------------------
Secretary
----------------------------------
Print/Type Name
Title:
-------------------------------
Date:
-------------------------------
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PEFORMANCE GUARANTEE
For valuable consideration, receipt of which is hereby acknowledged, we the
undersigned five banks, being all of the shareholders of the aforementioned
Licensee, do hereby individually and collectively guarantee the performance
of this License Agreement by Licensee.
(Seal) F & M BANK
ATTEST: 00 Xxxxx Xxxxxx, XX
Xxxxxxxxx, Xxxxx Xxxxxx 00000
By: By:
------------------------------- -------------------------------
----------------------------------
Print/Type Name
Title:
-------------------------------
Date:
-------------------------------
(Seal) RUSHMORE BANK & TRUST
ATTEST: 00 Xxxxx Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxx Xxxxxx 00000
By: By:
------------------------------- -------------------------------
Secretary
----------------------------------
Print/Type Name
Title:
-------------------------------
Date:
-------------------------------
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(Seal) CITIZENS BANK
ATTEST: 000 Xxxx Xxxxxxxxx
Xxxxxxx, Xxxx 00000
By: By:
------------------------------- -------------------------------
Secretary
----------------------------------
Print/Type Name
Title:
-------------------------------
Date:
-------------------------------
(Seal) CITIZENS BANK
ATTEST: 000 Xxxxx Xxxx
Xxxx, Xxxx 00000
By: By:
------------------------------- -------------------------------
Secretary
----------------------------------
Print/Type Name
Title:
-------------------------------
Date:
-------------------------------
(Seal) CITIZENS BANK OF PRINCETON
ATTEST: XX Xxxxxxx 00 & 000
Xxxxxxxxx, Xxxxxxxx 00000
By: By:
------------------------------- -------------------------------
Secretary
----------------------------------
Print/Type Name
Title:
-------------------------------
Date:
-------------------------------
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EXHIBIT 10.6 (CONTINUED)
LICENSE AGREEMENT # 1196-0001
CONTRACT MODIFICATION
This Contract Modification is entered into on September 5,1997, by and
between SPECTRUM BANC SERVICE CORPORATION (Licensee") and XXXX XXXXX &
ASSOCIATES, INC. ("XXX") who mutually contract and agree as follows:
Licensee and XXX are signing and entering into multiple other written
contracts and agreements dated September 5, 1997. Certain of those contracts
and agreements are changed and modified as follows:
1. The "LICENSE AGREEMENT" is changed and modified as follows:
A. Change "4. WARRANTIES." to read:
4. WARRANTIES. XXX warrants as follows:
(a) The Software furnished hereunder are free and clear of all
liens and encumbrances, and Licensor has full power and
authority to grant the rights granted to Licensee with
respect to the Software without the consent of any other
person or such consent has been obtained; the Software
furnished hereunder will not infringe or violate any
copyright, trade secret, trademark, patent or other
intellectual property rights of any third party; and there
is no litigation pending against Licensor which would limit,
restrict or prevent Licensee's use of the Software.
Licensor shall defend, indemnify and hold harmless Licensee,
its directors, officers, members, employees and agents and
its successors and assigns from and against any and all
claims, demands, actions, liabilities, losses, damages and
expenses, including, without limitation, settlement costs
and reasonable attorneys' fees, arising out of or relating
to any actual or alleged infringement or violation of any
third party's trade secrets, trademark, copyright, patent or
other intellectual property rights (the "Intellectual
Property Rights") in connection with the use of the
Software. Licensor' s obligation pursuant to the
immediately-preceding sentence is subject to the following
conditions: (i) Licensee shall give Licensor prompt written
notice of all actions, claims or threats against Licensee of
infringement of any Intellectual Property Rights; (ii)
Licensee shall permit Licensor to elect to assume complete
control of such claims at its sole discretion and expense;
and (iii) Licensee shall cooperate with Licensor in
defending against claims, including making known or
available to Licensor all records and
documents pertaining to claims upon reimbursement of all
costs associated with provision or reproduction thereof
(but not salary or wages of Licensee's Software is
prohibited by either judicial action or Licensor's
agreement, Licensor, at its own expense, shall elect to
either (i) procure for Licensee the right to continue using
the Software; or (ii) replace as soon as practicable the
Software with a noninfringing product which has
substantially similar functional capability; or (iii) modify
the Software so that they become noninfringing without any
material loss of functionality; or (iv) remove the Software
and any interdependent product whose function is
significantly impaired by the removal of the infringing
Software and refund Licensee an amount equal to the license
fee paid to Licensor for the Softwares as depreciated and
accept the return. Such depreciation shall be calculated as
an equal amount per year for five years.
(b) The Software do not and shall not contain any lock, clock,
timer, counter, copy protection feature, replication devices
or defect ("virus" or "worm" as such terms are commonly used
in the computer industry), CPU serial number reference, or
other device which; (i) might lock, disable or erase the
Software; (ii) prevent Licensee from fully utiIizing the
Software; or (iii) require action or intervention by
Licensor or other persons or entities to allow Licensee to
utilize the Software.
(c) The occurrence in or use by the Software of dates on or
after January 1, 2000, ("Millennial Dates') will not
adversely affect its performance with respect to date-
dependent data, computations, output, or other functions
(including, without limitation, calculating, comparing and
sequencing) and that the Software will create, store,
process and output information related to or including
Millennial Dates without error or omissions and at no
additional cost to Licensee. At Licensee's request,
Licensor will provide evidence sufficient to demonstrate
adequate testing of the Software to meet the foregoing
requirements.
(d) During the applicability of the foregoing warranties,
Licensor shall promptly provide corrections to the Software
where Licensee notifies Licensor in writing of any failure
of the Software to perform in accordance with JHA's
Documentation. Licensee shall assist Licensor in
identifying the circumstances on which such failure is
discovered and, if requested by Licensor, shall document the
circumstances. The Licensor shall furnish to Licensee
revised or updated documentation reflecting
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corrections made to the Software pursuant hereto. If in
Licensor's reasonable judgement, repair or replacement is
not possible or practicable, Licensor shall refund to
Licensee an amount equal to the license fee paid to Licensor
for the Software as depreciated; which shall be calculated
as an equal amount per year for five years.
(e) The services provided hereunder, including without
limitation, installation services, will be performed in a
good and workmanlike manner.
(f) At the time of delivery the unmodified Software will operate
in accordance with the then current documentation provided
by XXX. Under this warranty, XXX will correct any program
errors in the unmodified Software at no extra charge to
Licensee.
(g) At the time of delivery the Software will be in compliance
with Federal Laws."
THE ABOVE WARRANTIES ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL XXX BE LIABLE FOR INDIRECT,
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES."
B. In paragraphs "2. FEES", "19. SERVICES. (d)", "20. INSTALLATION.",
and "EXHIBIT A - SERVICES PROVIDED: 4" change "expenses" to
"reasonable expenses".
C. In paragraph "2. FEES." to the second subparagraph add
"Notwithstanding the above, expenses reimbursable to XXX for meals and
lodging will not exceed $125.00 per day/per person."
D. In the second subparagraph of "2. FEES," change "other than personal
property taxes or income taxes" to "other than personal property
taxes, income taxes, or franchise taxes levied by Missouri."
E. In "3. LICENSE.":
a. To the third subparagraph add "No additional license fee will be
charged for an Exhibit B Bank operating a branch bank under the
same name and charter of the Exhibit B Bank"
b. To the fourth subparagraph add "In the future, newly acquired 85%
owned and controlled banks may be added to Exhibit B and
processed by Licensee for an additional license fee paid to XXX
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equal to the then current license fee for each added bank less
75% discount."
F. Add the following to paragraph "20. INSTALLATION.":
"Installation of said Software will be in accordance with
attached Exhibit C which is incorporated herein."
G. Change the payment schedule on "EXHIBIT A" (page 12) to read:
-------------------------------------------------------------------------------
"Deposit at execution of Agreement (25%) $ 84,437.50
Due upon delivery of Software (35%) 118,212.50
Due at Final Conversion Date of first bank install (15%) 50,662.50
Due at Final Conversion Date of third bank install (15%) 50,662.50
Due at Final Conversion Date of fifth and final bank install (10%) 33,775.00"
H. In "EXHIBIT A - APPLICABLE TAXES:" change "exclusive ... net income."
to read "exclusive of property taxes, taxes based on net income and
franchise taxes levied by Missouri."
I. To "6. Term." add "If during the term of this license, Licensee
elects to deconvert off the XXX Software, XXX, will provide Licensee
assistance with the deconversion at JHA's then current fees and
expenses, provided JHA's Deconversion Agreement is fully signed, and
provided Licensee is not then in breach or default on any contract or
agreement with XXX."
2. The "COMPUTER SOFTWARE MAINTENANCE AGREEMENT" is changed and modified as
follows:
A. In "1. MAINTENANCE AND SUPPORT. (a)" change "within a reasonable
time" to "in a timely manner"; and add "However, XXX will use due
diligence to see that its Software is kept in compliance with Federal
and State banking laws."
B. To "1. MAINTENANCE AND SUPPORT" add new subparagraph (f) as follows:
"(f) All XXX program interfaces licensed by XXX to Licensee are
covered by this Agreement the same as the unmodified initial
Software licensed by XXX to Licensee."
C. To "1. MAINTENANCE AND SUPPORT." add new subparagraph (g) as follows:
"(g) XXX shall maintain a 24-hour day, 7-day a week telephone support
line, which shall be continuously manned by qualified XXX
personnel in order that Licensee shall have access to assistance
by telephone 365 days a year, toll free except for
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data line support."
D. To "1. MAINTENANCE AND SUPPORT" add new subparagraph (h) as follows:
"(h) XXX will keep the unmodified Software licensed to Licensee
working and functioning in accordance with JHA's Documentation on
same.
E. To "1. MAINTENANCE AND SUPPORT." add new subparagraph (I) as follows:
"(I) XXX will provide Licensee Support/Maintenance for JHA's Software
for a period not less than five (5) years by written agreement,
provided Licensee is not delinquent with payments to XXX and is
not in default or breach of any agreement between Licensee and
XXX."
F. To "3. MAINTENANCE FEES. (b)" add:
"The annual advance fee stated is for all five banks, which will be
apportioned-for each bank as its assets relate to the total assets of
all five banks. The initial fee for each bank will be prorated from
its install date to next July 1. After all five banks are installed,
the annual advance fee will be payable each July 1."
G. In "3. MAINTENANCE FEES. (d)" change "(if any)" to "(if any, but not
personal property taxes, income taxes, or franchise taxes levied by
Missouri)"; and change "expenses" to "reasonable expenses".
H. To 4. TERM AND AUTOMATIC RENEWAL." add:
"Prior to July 1, 2003, XXX will not increase the percentage rate used
to set the annual maintenance fee on the initial Software more than
the percentage increase in the Consumer Price Index for each year,
cumulative from the original fee or the last fee increase; provided
however, this limitation will not apply to additional fees based on
increases in Licensee's total assets being processed, or use of
additional customization or Software programs.
If this Agreement is lawfully terminated in the middle of a term,
then:
(a) if the reason for termination is JHA's refusal or inability to
provide Support/Maintenance, provided for herein to Licensee,
then XXX will refund the unused portion of the prepaid annual fee
to Licensee, and
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(b) if the reason for termination is the sale, acquisition or merger
of Licensee, no refund will be due from XXX to Licensee.''
3. The "Agreement for Purchase of Machines" is changed and modified as follows:
A. Change the third subparagraph to read:
"The Customer-agrees to purchase and accept the Machines under the
terms and conditions of this Agreement. The Customer further agrees,
with respect to the Machines and programming, to accept responsibility
for (I) their use, and (2) the results obtained therefrom. The
Customer also has the responsibility for the use of and results
obtained from, any other equipment, programs (other than XXX
Software), or services used with the Machines and programming."
B. Add the following new subparagraph to "GENERAL":
"Any contractual conflict between this Agreement and a later signed
Supplement will be resolved in accordance with the Supplement."
In witness whereof, the parties have caused this CONTRACT MODIFICATION to be
executed by their duly authorized representatives.
XXXX XXXXX & ASSOCIATES, INC. SPECTRUM BANC SERVICE
000 Xxxxxxx 00, X.X. Xxx 000 XXXXXXXXXXX
Xxxxxx, XX 00000 00 Xxxxx Xxxxxx XX
Xxxxxxxxx, Xxxxx Xxxxxx 00000
(LICENSEE)
BY: BY:
------------------------------- -------------------------------
---------------------------------- ----------------------------------
Type/Print Name Type/Print Name
TITLE: TITLE:
----------------------------- -----------------------------
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