EXHIBIT 10.24
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
ORIGINATION SERVICES AGREEMENT
by and between
V-TEK SYSTEMS CORPORATION
and
THE FIRST MARBLEHEAD CORPORATION
This Origination Services Agreement ("Agreement") is entered into this 1st
day of July, 2003 (the "Effective Date"), by and between V-Tek Systems
Corporation, a California corporation with its principal place of business
located at 0000 Xxxxxx Xxxxx Xxxxx, Xxxxxxx Xxx, Xxxxxxxxxx 00000 ("V-Tek") and
The First Marblehead Corporation, a Delaware corporation with its principal
place of business located at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
("FMC").
WHEREAS, V-Tek has substantial experience and expertise as a systems and
service provider in the student loan origination industry;
WHEREAS, FMC is engaged in structuring and assisting lenders in
implementing alternative student loan programs;
WHEREAS, V-Tek currently serves as a data translation and data exchange
service bureau for FMC in connection with the GATE Student loan program;
WHEREAS, FMC desires to retain V-Tek to perform certain services on its
behalf with respect to a new GATE Universal student loan program, and V-Tek
desires to perform such services;
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1: DEFINITIONS
"AES" shall mean American Education Services, a division of the
Pennsylvania Higher Education Assistance Agency.
"Authorized Users" shall mean employees of FMC, Lender, Servicer and the
Schools who are authorized to access and use the GATE Systems. Authorized Users
also includes Borrowers.
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"Borrower" means an applicant (and any co-applicant or co-xxxxxx) for a
loan under one of the GATE student loan programs.
"Error" means a programming defect, or, with respect to equipment in
V-Tek's possession or under its control, equipment malfunction or other
deficiency or problem which results in failure of the GATE Systems to perform in
conformance with the Specifications.
"GATE Student Services" means the existing services being performed by
V-Tek as set forth in Exhibit B attached hereto, as same may be amended from
time to time by mutual agreement of the parties in writing.
"GATE Student System" means the web claiming and enrollment software
systems (including computer databases) supporting delivery of the GATE Student
Services.
"GATE Systems" means the GATE Student System and the GATE Universal System.
"GATE Universal Services" means the new services to be performed by V-Tek
under this Agreement as set forth in Exhibit A attached hereto, as same may be
amended from time to time by mutual agreement of the parties in writing.
"GATE Universal System" means the student loan origination software system
(including computer databases) supporting delivery of the GATE Universal
Services, which is more fully described in the Specifications attached hereto as
Exhibit E.
"Lender" shall mean Bank of America, N. A., a national banking association
organized under the laws of the United States and having a place of business
located 000 Xxxxxxxx Xxxx., 0xx Xxxxx, Xxx Xxxxxxx, XX 00000.
"Lender Origination Services Agreement" means the Origination Services
Agreement entered into by and between Lender and FMC, effective July 1, 2003.
"Performance Standards" means the time response standards set forth in
Section 3 ("Support Services") for correction of errors in the GATE Systems and
the minimum service level requirements set forth in Exhibit D, as same may be
amended from time to time by mutual agreement of the parties in writing.
"PHEAA" shall mean the Pennsylvania Higher Education Assistance Agency, a
public corporation and government instrumentality organized under the laws of
the Commonwealth of Pennsylvania, and having an address at 0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000.
"School" means a post secondary school participating in one of the GATE
student loan programs.
"Servicer" shall mean and refer to PHEAA and AES or such other servicer as
may be approved by FMC and Lender.
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"Services" means the services to be performed by V-Tek as set forth in this
Agreement, including the hosting, operating and maintaining of the GATE Systems,
the GATE Universal Services, GATE Student Services, and such other services as
may be mutually agreed upon by the parties in writing.
"Specifications" means the functionality and performance requirements for
the GATE Universal System set forth in Exhibit E and the description of GATE
Student Services set forth in Exhibit B, as each may be amended from time to
time by mutual agreement of the parties in writing.
SECTION 2: SERVICES
a. V-Tek will be solely responsible for performing the Services, subject
to the terms and conditions of this Agreement. V-Tek will operate the GATE
Systems in conformity with the Specifications.
b. V-Tek will designate one of its employees to serve as project manager
for this engagement. Said project manager shall have familiarity with the GATE
Systems and shall have authority to make decisions on behalf of V-Tek. V-Tek
will replace said project manager upon the reasonable request of FMC, and
reassignment of the project manager shall be subject to FMC's approval, which
shall not be unreasonably withheld. V-Tek shall provide sufficient qualified
personnel as reasonably necessary to provide the Services in a timely manner.
c. V-Tek will provide Authorized Users with access to an on-line, secure
(as specified in Section 11 hereunder) hosting environment ("Hosting
Environment") through which they will be able to access the GATE Systems. V-Tek,
at its sole expense, (i) will provide such server hardware, operating systems,
software, telecommunications and other network communications equipment linking
the Hosting Environment to the World Wide Web and Internet to provide Authorized
Users with access to the GATE Systems; and (ii) will be responsible for
providing such third party software and hardware, including but not limited to,
operating systems and database software, necessary to host, operate and maintain
the GATE Systems in accordance with the Specifications. FMC will pay for
additional costs incurred by V-Tek due to changes in the scope of services
hereunder (including changes to the functionality of the GATE Systems) made or
approved by FMC after the Effective Date, provided that V-Tek notifies FMC in
writing of any such additional costs prior to implementation of such changes.
SECTION 3: SUPPORT SERVICES
a. V-Tek shall be solely responsible for supporting and maintaining the
GATE Systems. Said support shall include providing (i) telephone support and
correcting Errors and making repairs and bug fixes in accordance with the terms
set forth in this Section 3 to ensure that the GATE Systems continue to operate
in conformity with the Specifications; and (ii) updates to source code of the
GATE Systems as a result of correcting Errors and making such repairs or bug
fixes. Further, V-Tek will monitor the Hosting Environment and the GATE Systems
in order to note any on-line system outages or failures.
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b. V-Tek shall provide to FMC, and keep current on a monthly basis, a
list of persons and telephone and pager numbers ("Calling List") for FMC to
contact, 24 hours per day, 7 days per week, to whom to ask questions concerning
FMC's and its Authorized Users' use of the Services or from whom to request
assistance in solving problems encountered in FMC's and its Authorized Users'
use of the Services. Such Calling List shall include: (1) the first person to
contact in the event of such question or problem, and (2) the persons in
successively more responsible or qualified positions to respond to the question
or request for assistance.
c. If FMC desires assistance or detects any Error in the Services, FMC
shall contact V-Tek's designated telephone number. V-Tek shall make reasonable
efforts to respond to FMC's initial telephone call within 1 hour of FMC's first
call for answers or assistance. If V-Tek fails to respond within 1 hour after
contact by FMC at the designated telephone number or if the designated person is
not available when FMC makes contact with V-Tek, then FMC shall attempt to
contact the next more responsible or qualified person on the Calling List until
contact is made and a designated person responds to the call.
d. After FMC notifies V-Tek of a suspected Error, FMC shall consult with
V-Tek to determine the severity of the Error, and V-Tek shall make all
reasonable attempts to provide an immediate workaround, and a correction of the
Error at the earliest reasonable time. FMC shall submit to V-Tek any and all
data and/or output that V-Tek may reasonably request in order to reproduce
operating conditions similar to those present when FMC detected the Error. FMC
shall also notify V-Tek in writing or via e-mail whether the Error is, in FMC's
reasonable determination, a Class 1, Class 2 or Class 3 Error.
e. CLASS 1 ERRORS. Class 1 Errors are defined as any system failure,
other than failures due to force majeure events or failures due to unauthorized
acts or omissions of FMC or its employees or agents or any third party beyond
V-Tek's reasonable control, that prevents loan applications and/or data from
reaching their processing destination or that causes incorrect or inaccurate
processing of loan applications and/or data. For Class 1 Errors, if a correction
has not been implemented within twenty-four (24) hours after initial
notification, V-Tek shall take all reasonable steps, without regard to cost, to
implement a correction. These steps shall include, but are not limited to,
assigning fully qualified technicians to work without interruption (i.e.,
twenty- four (24) hours per day), at no additional cost to FMC, until V-Tek
implements a correction.
f. CLASS 2 ERRORS. Class 2 Errors are defined as any system failure,
other than failures due to force majeure events or failures due to unauthorized
acts or omissions of FMC or its employees or agents or any third party beyond
V-Tek's reasonable control, that causes disruption to one or more of the
material functions of the GATE Systems or significant degradation to the
Services, including without limitation, the speed within which data is processed
or transmitted. For Class 2 Errors, if a workaround satisfactory in FMC's
reasonable judgment is not available within twenty-four (24) hours, or if a
correction has not been implemented within two (2) business days after initial
notification, V-Tek shall take all reasonable steps without regard to cost, to
provide a workaround satisfactory in FMC's reasonable judgment, or to implement
a correction. These steps shall include assigning fully qualified technicians to
work without interruption (i.e., twenty- four (24) hours per day), at no
additional cost to FMC, until V-Tek implements a correction.
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g. CLASS 3 ERRORS. Class 3 Errors are defined as all remaining system
failures, other than failures due to force majeure events or failures due to
unauthorized acts or omissions of FMC or its employees or agents or any third
party beyond V-Tek's reasonable control, not categorized as a Class 1 or 2
Error. For Class 3 Errors, excluding documentation errors, if a workaround
satisfactory in FMC's reasonable judgment is not available within two (2)
business days, or if a correction has not been implemented within two (2)
business days after initial notification, V-Tek shall take all reasonable steps
identified by FMC to provide a workaround or to implement a correction. These
steps shall include assigning fully qualified technicians to work, at no
additional cost to FMC, until V-Tek implements a correction. For documentation
Errors, V-Tek shall provide fully corrected and updated documentation at the
time of V-Tek's next scheduled release of such documentation.
h. V-Tek shall notify FMC of any on-line system outage, on-line
limitation, on-line failure or on-line discrepancy within fifteen (15) minutes
of the time that V-Tek has knowledge of the occurrence thereof, which
notification shall include a prognosis for restoration of the affected Services
that complies with the requirements of the preceding subsection.
i. V-Tek shall provide FMC prior written notice of any scheduled
maintenance that is likely to affect V-Tek's provision of any of the Services on
the date on which V-Tek determines when such maintenance shall be performed, but
in no case later than fourteen (14) days prior to the date on which such
maintenance shall occur, and shall schedule such maintenance so as to minimize
the impact of any related outage on the Services.
SECTION 4: PERFORMANCE STANDARDS; ACCESS TO RECORDS
a. V-Tek shall perform the Services in conformance with the terms of this
Agreement, including without limitation, the Performance Standards. In the event
that V-Tek fails to do so, and if V-Tek fails to correct such non performance in
accordance with the cure period procedure set forth in subsection (c) herein
after written notice explaining with reasonable detail such non performance, FMC
shall be entitled to terminate for breach consistent with Section 18.
b. V-Tek will permit the Lender and FMC, or each of them individually,
and any duly designated representative of the Lender and FMC, or each of them
individually, or any regulatory body having jurisdiction over Lender (subject to
written notice being provided to V-Tek by the Lender, identifying the requesting
party and date of the review), to examine and audit V-Tek's books and records,
systems, telephone logs, databases, controls, processes and procedures related
to its performance of Services, at any time during V-Tek's regular business
hours upon reasonable advance notice. Regulatory agencies can have access to
V-Tek's books and records, systems, telephone logs, databases, controls,
processes and procedures related to its performance of Services when they deem
necessary without prior notice but only to the extent authorized by law or
published regulations. Further, V-Tek will provide the Lender and FMC with a
summary report of its financial condition within thirty (30) days of the end of
its fiscal year.
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c. Lender and FMC, or each of them individually, and any duly designated
representative of the Lender and FMC, or each of them individually, will notify
V-Tek of any deficiencies found during such examination and audit, and V-Tek
shall have the opportunity to cure such deficiencies in accordance with the
procedure in this subsection. A "deficiency" or "deficiencies" shall mean
failure of V-Tek to perform in conformance with the terms of this Agreement,
including, without limitation, the Performance Standards, or failure of the GATE
Systems to operate (other than due to an unauthorized act or omission of FMC or
a third party) in conformance with the Specifications. In the event V-Tek
receives notice of a deficiency, it shall (i) cure such deficiency immediately,
but in no event later than such seven (7) days after receipt of written notice
explaining in reasonable detail the deficiency, or such longer period as is
reasonably necessary to correct such deficiency provided V-Tek commences and
diligently pursues such cure within such seven (7) day period and completes said
cure within thirty (30) days of such notice, unless an extension of the cure
period beyond such seven (7) days is approved in writing by the Lender and FMC;
and (ii) suspend services hereunder immediately, if requested to do so by the
Lender and FMC, until the deficiency has been cured. Nothing herein shall
affect, alter or relieve V-Tek of its obligations to correct Errors in the GATE
Systems in accordance with the time response standards set forth in Section 3
hereunder. In all cases, V-Tek shall (i) cooperate with Lender and FMC in
implementing a cure for any deficiencies; and (ii) take all reasonable steps,
including allocating additional resources if necessary, to cure a deficiency as
promptly as practicable. Upon failure of V-Tek to cure a deficiency within the
cure period set forth herein or such longer cure period as otherwise approved by
the Lender and FMC, Lender and/or FMC shall be entitled to terminate this
Agreement in accordance with the provisions of Section 18.
d. During the term of this Agreement, V-Tek agrees to adhere to its
information security program as described in Section 11 hereunder.
Notwithstanding any other provision of this Agreement, V-Tek shall permit the
Lender and FMC, or each of them individually, and any duly designated
representative of the Lender and FMC, or each of them individually, to audit its
operations relating to the Services for compliance with such information
security program, upon reasonable notice from the Lender and/or FMC.
e. During the term of this Agreement, FMC shall, on a daily basis during
the initial 30 days of the Term and thereafter on a regular basis, review the
accuracy of the content of the reports and all other output generated by the
Gate Universal System and immediately notify V-Tek if there are any inaccuracies
in such output and reports and an explanation as to why the output or report is
inaccurate.
SECTION 5: FEES; NOTICES
a. In consideration of the Services rendered by V-Tek under this
Agreement, FMC will pay V-Tek the fees set forth in Exhibit C. All billed fees
will be paid within thirty (30) days of the FMC's receipt of V-Tek's invoice,
except the portion of fees subject to good faith dispute. Any nondisputed
amounts unpaid after thirty (30) days will be subject to a late fee of 1.5% per
month until paid in full.
b. All notices given by any party to the others under this Agreement
shall be in writing delivered: (a) personally, (b) by facsimile transmission,
(c) by overnight courier, prepaid,
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or (d) by depositing the same in the United States mail, certified, return
receipt requested, with postage prepaid, addressed to the party at the address
set forth below. Any party may change the address to which notices are to be
sent by notice of such change to each other party given as provided herein. Such
notices shall be effective on the date received.
The First Marblehead Corporation
00 Xx. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
and
V-Tek Systems Corporation
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
and
Bank of America, N.A.
000 Xxxxxxxx Xxxx., 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx
d. V-Tek may raise its fee, including without limitation, any and all
maintenance fees as described in Exhibit B, upon six months' notice to FMC,
effective at any time or times after the initial two-year period of this
Agreement but not more often than once in any twelve-month period; provided,
however, any such fee increase shall be limited to the average increase in the
Consumer Price Index measured over the six-month period immediately preceding
the effective date of such increase or 5%, whichever is greater. If the new fee
structure is unacceptable, FMC may cancel this Agreement, effective as of the
effective date of the fee increase, by written notice to V-Tek within sixty (60)
days of receipt of the new fee schedule.
e. Notice for the above or any other purpose of this Agreement may be
given by any means requiring receipt signature or by facsimile transmission
confirmed by first class mail to the addresses listed in subsections b. and c.
above.
SECTION 6: INSURANCE
V-Tek shall maintain insurance coverage of the types and in the amounts as
set forth in Exhibit F.
SECTION 7: REPORTS
a. V-Tek will prepare and forward to FMC on a regular basis the reports
set forth in Exhibit G.
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b. Other than those reports reflected in Exhibit G, all of which V-Tek
will routinely provide without imposition of an additional or special fee, V-Tek
will cooperate as reasonably practicable to provide, for a reasonable fee, such
additional reports as requested by the Lender and FMC, with the fee and delivery
schedule to be agreed upon at the time of the request.
SECTION 8: WARRANTIES AND REPRESENTATIONS
a. V-Tek and the FMC each represents and warrants to the other that:
(i) It is duly organized and existing in good standing under the
laws of its state of incorporation and has, in all material
respects, full power and authority to own its properties and
conduct its business as presently owned or conducted, and to
execute, deliver and perform its obligations in connection with
this Agreement.
(ii) It is duly qualified to do business and is in good standing (or
is exempt from any requirements to so qualify) and has obtained
all necessary licenses and approvals from any government
authority within any jurisdiction that requires such
qualification, license or approval, except where the failure to
qualify or obtain licenses or approvals would not have a
material adverse effect on its ability to perform its
obligations under this Agreement.
(iii) The execution, delivery and performance of this Agreement and
the consummation of the transactions provided for in this
Agreement have been duly approved and authorized by all
necessary organizational action. Each party acknowledges that
this Agreement constitutes a legal, valid and binding
obligation, that is enforceable in accordance with its terms,
except that enforcement thereof may be limited by receivership,
conservatorship, bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability relating to
or affecting creditors' rights or general equity principles
(regardless of whether such matters are considered a proceeding
in equity or at law) and the availability of equitable remedies.
(iv) The execution and delivery of this Agreement, the performance of
the transactions contemplated by this Agreement, and the
fulfillment of the terms of this Agreement will not conflict
with, violate or result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time or both) a default under, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which
it is a party or by which it or any other properties are bound
which would have a material adverse effect on it's ability to
exercise its rights or performance obligations hereunder.
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(v) As of the date hereof, there are no proceedings or
investigations pending, or to the best of the knowledge of the
party, threatened against it before any governmental authority:
(A) asserting the invalidity of this Agreement; (B) seeking to
prevent the consummation of any of the transactions contemplated
by this Agreement; (C) seeking any determination or ruling that,
in reasonable judgment, would both materially and adversely
affect the exercise by the party of its rights or performance of
its obligations under this Agreement; or (D) seeking any
determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement.
(vi) It will at all times comply with all applicable federal and
state laws and regulations relating to the privacy and
protection of consumer data, the reporting of breach of computer
security by employees or third parties and the handling of
consumer data. The foregoing notwithstanding, V-Tek will have no
obligation to comply with the laws of any state other than
California and those states whose laws and regulations duplicate
federal laws and regulations, provided that if V-Tek is asked by
FMC and/or the Lender to adopt any particular form, method or
procedure provided to V-Tek by FMC and/or the Lender for
carrying out its duties hereunder, in order to comply with the
laws of any other jurisdiction, and V-Tek agrees, at FMC's
costs, to adopt such form, method or procedure, V-Tek will be
obligated hereunder for failure to comply with such laws insofar
as such failure arises from V-Tek's failure to implement, in the
particular case, such form, method or procedure.
b. V-Tek represents and warrants that, except for flawed data input into
the GATE Systems by FMC or its employees or agents or any third party, the GATE
Systems will (a) operate continuously without errors relating to date
information; (b) continue to function and will not generate invalid or incorrect
results as a result of date information, including any date information
representing dates from different centuries or more than one century; and (c)
has been designed to be and in fact is, Year 2000 compatible such that (i) all
data created or stored by the software will be correct, regardless of the date
information contained therein or the date the data is created or stored; (ii)
all calculations performed will be correct regardless of the date information
used or the date the calculations are performed; (iii) all date-related user
interface functions and data fields include a century indication; and (iv) all
reports generated will include a century indication.
c. V-Tek further warrants and represents that (i) neither the Services
nor any elements thereof infringe any patent, copyright or other intellectual
property right of any third party, and (ii) V-Tek possesses all rights, title
and interests in and to the Services necessary to enter into this Agreement and
to grant the rights granted to FMC hereunder free and clear of all liens,
encumbrances, claims or restrictions. The warranty and representation of the
preceding sentence shall not apply, however, with respect to any infringement
claims that would not have arisen but for (or to the extent of) materials,
requirements, concepts, and all other items provided
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by FMC or Lender or a third party with respect to Third Party Materials to the
extent same cause or contribute to such infringement or are incorporated in the
Services or any elements thereof.
SECTION 9: PROPRIETARY RIGHTS
a. V-Tek acknowledges and agrees that the GATE Systems, and all
documentation and other materials provided to V-Tek under this Agreement by FMC,
are and shall remain the sole and exclusive property of FMC, subject to the
terms of that certain Assignment Agreement of even date entered into by and
between V-Tek and FMC, and subject to the terms of that certain Software
Development Agreement of even date entered into by and between V-Tek and FMC,
both of which agreements are hereby incorporated herein by reference and made a
part hereof. The GATE Systems and all such documentation and materials shall be
returned to FMC within ten (10) days of termination of this Agreement, except as
otherwise expressly provided in this Agreement.
b. V-Tek acknowledges and agrees that, as between V-Tek and FMC, all data
disclosed or furnished by FMC or its Authorized Users to V-Tek pursuant to this
Agreement, all data processed through V-Tek or the GATE Systems, all data
maintained in a database for use by FMC, and any results of processing such data
or derived in any way from such data are and shall at all times remain the sole
and exclusive property of FMC, either individually or in its capacity as agent
for Lender. At FMC's cost (based on V-Tek's then current time and materials
rates) to the extent such requests are in excess of two times per calendar year,
upon FMC's request, V-Tek shall provide to FMC and/or Lender a magnetic tape
copy of all such data then stored or held by V-Tek, along with a data dictionary
and file definitions for all information provided to FMC and/or Lender.
c. Any work, deliverables, materials, software (object and source code),
improvements, flow charts, specifications, designs, processes, programs, and the
tangible embodiments of same, made or conceived by V-Tek during the term of this
Agreement in connection with providing Services and related to the GATE Systems,
other than Developer's Tools, (collectively, the "Work Product"), shall be and
remain the sole and exclusive property of FMC.
d. To the extent any such Work Product is protectable under U.S.
copyright laws, such Work Product shall be considered as a "work made for hire"
as that phrase is defined by such laws and shall be owned solely and exclusively
by and for the express benefit of FMC. In the event such Work Product does not
constitute a "work made for hire", V-Tek hereby irrevocably and exclusively
sells, assigns and transfers to FMC its entire right, title and interest in and
to such Work Product (other than "Developer's Tools" defined below), including,
without limitation, all Intellectual Property Rights therein or relating
thereto. V-Tek agrees to waive all of its moral rights, if any, relating to the
Work Product, including any rights of identification of authorship and any and
all rights of approval, restriction or limitation on use thereof or subsequent
modifications thereto.
e. Both during the term of this Agreement and thereafter, V-Tek shall, at
no cost to V-Tek, (i) reasonably cooperate with FMC in the protection and
enforcement of any Intellectual
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Property Rights that derive from the Work Product; and (ii) provide all
reasonable assistance and execute, acknowledge and deliver all documents
reasonably requested by FMC in the establishment, publication, preservation,
protection and enforcement of its rights in said Work Product.
f. Subject to any third party license rights under Third Party Materials,
V-Tek agrees and acknowledges that FMC shall have the right in its sole
discretion and without further consideration to V-Tek to make any use of the
Work Product as it may desire, including without limitation, creating and
implementing software or other derivative works based thereon, and/or using,
selling, licensing or otherwise exploiting the Work Product or software or other
derivative works based thereon, either itself of through third parties;
provided, however, that nothing herein shall obligate FMC to further develop,
use or exploit the Work Product.
g. "Developer's Tools" shall mean V-Tek's pre-existing, proprietary
reusable software code (including derivatives thereof) that is installed or
incorporated in or as part of the Work Product. "Developer's Tools" also include
the enhanced general knowledge, skills and experience developed by V-Tek as a
result of V-Tek's performance of services under this Agreement. V-Tek hereby
grants to FMC and its Affiliate a non-exclusive, fully paid-up, perpetual right
and license to use, copy, modify, display, and make derivative works from the
Developer's Tools for the purposes of using, operating, supporting and/or
maintaining the Work Product. Nothing herein, however, shall be deemed a
transfer of ownership of the Developer's Tools to FMC.
h. "Intellectual Property Rights" shall mean all patents and patent
applications, trade marks (whether registered or unregistered and including any
goodwill acquired in such trade marks), service marks, trade names, business
names, internet domain names, e-mail address names, copyrights (including rights
in computer software), computer source code, computer object code, moral rights,
database rights, design rights, rights in know-how, rights in confidential
information, rights in inventions (whether patentable or not), trade secrets and
all other proprietary rights therein or relating thereto (whether registered or
unregistered and including any form of application for any of the foregoing, and
including all extensions and renewals thereof, together with all copyright
registrations obtained therefor, and any renewals or extensions of such
copyright registrations, and together with all rights to xxx and recover for any
past infringements of any of the copyrights), and all other equivalent or
similar rights which may subsist anywhere in the world.
i. If V-Tek intends to include within the Work Product any software or
other intellectual property of a third party ("Third Party Materials"), or if in
order to use the Work Product FMC will be required to use any Third Party
Materials, V-Tek will so notify FMC and arrange for FMC to obtain, at FMC's sole
cost but subject to FMC's approval, such approval not to be unreasonably
withheld or delayed, a perpetual, royalty-free, non-exclusive right and license
to use the Third Party Materials in connection with FMC's or an Affiliates' use
of the Work Product.
j. Nothing in this Agreement shall preclude or limit either party from
independently acquiring or developing competitive products or services for
itself or its customers, or from
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providing competitive products or services to its customers, so long as such
party does not breach the obligations it has assumed under this Agreement or
otherwise violate the rights of the other party. Further, nothing in this
Agreement will be construed to restrict either party from using intangible
residual know-how or general knowledge or concepts retained in the mind of such
party's employees and consultants in developing products or performing services
provided that such party or its employees and consultants do not reference,
incorporate or use any Confidential Information or otherwise infringe on the
Intellectual Property Rights of the other party. Further, each party
acknowledges that the other may currently or in the future be developing
information internally, or receiving information from other parties, that is
similar to the GATE Systems. Accordingly, nothing in this Agreement will be
construed as a representation or agreement that V-Tek will not develop or have
developed for it products, concepts, systems or techniques that are similar to
or compete with the products, concepts, systems or techniques contemplated by or
embodied in the GATE Systems, provided that V-Tek does not violate any of its
obligations under this Agreement or otherwise infringe the Intellectual Property
Rights of FMC. Notwithstanding any term in this Agreement to the contrary, and
for purposes of clarification, the parties agree that (1) FMC makes no claim to
exclusive ownership of the concepts and processes incorporated in the GATE
Universal System which are generally known in the industry; and (2) except for
the tier pricing and specific content (namely, the data, criteria, variables,
formulas and relationships between each of the data points) embodied in the GATE
Universal System, V-Tek may use such concepts and processes incorporated in the
GATE Systems in developing similar loan origination systems for itself or
others, so long as V-Tek does not breach its confidentiality obligations under
this Agreement or violate the copyrights or trade secret rights of FMC.
SECTION 10: CONFIDENTIALITY
a. The term "Confidential Information" shall mean this Agreement and all
proprietary information, data, trade secrets, business information and other
information of any kind whatsoever which (a) a Party ("Discloser") discloses, in
writing, orally, visually, or in any other medium to the other Party
("Recipient") or to which Recipient obtains access in connection with the
negotiation and performance of this Agreement, and which (b) relates to (i) the
Discloser, (ii) in the case of V-Tek, Lender and FMC and their customers, or
(iii) third-party suppliers or licensors who have made confidential or
proprietary information available to Lender and/or FMC. Confidential Information
shall include (1) the tier pricing and specific content (namely, the data,
criteria, variables, formulas and relationships between each of the data points)
embodied in the GATE Universal System; and (2) Customer Information, as
described below.
b. V-Tek acknowledges that Lender and FMC have a responsibility to their
customers to keep information about their customers and their accounts
("Customer Information") strictly confidential. In addition to the other
requirements set forth in this Section regarding Confidential Information,
Customer Information shall also be subject to the additional restrictions set
forth in this Subsection. V-Tek shall not disclose or use Customer Information
other than to carry out the purposes for which Lender (or one of its affiliates)
and FMC disclosed such Customer Information to V-Tek. V-Tek shall not disclose
any Customer Information other than on a "need to know" basis or as required by
law, and then only to: (a) affiliates of Lender and/or FMC; (b) V-Tek's
employees or officers; (c) affiliates of V-Tek provided that such
12
affiliates shall be restricted in use and redisclosure of the Customer
Information to the same extent as V-Tek; (d) to carefully selected
subcontractors provided that such subcontractors shall have entered into a
confidentiality agreement no less restrictive than the terms hereof; (e) to
independent contractors, agents, and consultants designate by Lender and/or FMC;
or (f) pursuant to the exceptions set forth in 15 USC 6802(e) and accompanying
regulations which disclosures are made in the ordinary course of business. The
restrictions set forth herein shall apply during the term and after the
termination of this Agreement.
c. Each of the Parties, as Recipient, hereby agrees on behalf of itself
and its employees, officers, affiliates and subcontractors that Confidential
Information will not be disclosed or made available to any person for any reason
whatsoever, other than other than on a "need to know basis" and then only to:
(a) its employees and officers; (b) subcontractors and other third-parties
specifically permitted under this Agreement, provided that all such persons are
subject to a confidentiality agreement which shall be no less restrictive than
the provisions of this Section; (c) independent contractors, agents, and
consultants designated by Lender and/or FMC; and (d) as required by law or as
otherwise permitted by this Agreement, either during the term of this Agreement
or after the termination of this Agreement. Prior to any disclosure of
Confidential Information as required by law, the Recipient shall (i) notify the
Discloser of any, actual or known threatened legal compulsion of disclosure, and
any actual legal obligation of disclosure immediately upon becoming so
obligated, and (ii) cooperate, at Discloser's expense including reasonable legal
fees incurred by Recipient, with the Discloser's reasonable, lawful efforts to
resist, limit or delay disclosure. Nothing in this Section 10 shall require any
notice or other action by Lender and/or FMC in connection with request or
demands for Confidential Information with request by bank examiners or other
regulators to the extent permitted by law.
d. If any Services furnished by V-Tek (or plan, design or specification
for producing the same) have been specifically designed, developed or modified
by V-Tek for Lender and/or FMC at its request and expense, then no such
Services, plan, design or specification shall be duplicated or furnished to
others by V-Tek without Lender and/or FMC's prior written consent. V-Tek shall
return all copies of existing documentation for such Services, including
original (or plan, design or specification for producing the same) upon Lender
and/or FMC's request or upon termination or expiration of this Agreement.
e. Upon the termination or expiration of this Agreement, or at any time
upon the request of Lender and/or FMC, V-Tek shall return all Confidential
Information, including Customer Information, in the possession of V-Tek or in
the possession of any third party over which V-Tek has or may exercise control.
f. The obligations of confidentiality in this Section shall not apply to
any information which a Party rightfully has in its possession when disclosed to
it by the other Party, information which a Party independently develops,
information which is or becomes known to the public other than by breach of this
Section or information rightfully received by a Party from a third party without
the obligation of confidentiality.
g. All media releases, public announcements and public disclosures by
either Party, or their representatives, employees or agents, relating to this
Agreement or the name or logo of
13
Lender and/or FMC, any Lender and/or FMC affiliate or V-Tek, including, without
limitation, promotional or marketing material, but not including any disclosure
required by legal, accounting or regulatory requirements beyond the reasonable
control of the releasing Party, shall be coordinated with and approved by the
other Party in writing prior to the release thereof.
SECTION 11: INFORMATION SECURITY PROGRAM
a. V-Tek acknowledges that Lender is required to comply with the
information security standards required by the Xxxxx-Xxxxx-Xxxxxx Act (15 U.S.C.
6801, 6805(b)(1)) and the regulations issued thereunder (12 C.F.R. Part 40) and
with other statutory and regulatory requirements as well as Lender's internal
information security program for information protection. At FMC's expense, V-Tek
shall make reasonable efforts to assist Lender to comply with such statutory and
regulatory requirements. At V-Tek's expense, V-Tek shall make reasonable efforts
to conform with V-Tek's own policies for information protection.
b. Within 30 days after the date first written above, V-Tek shall deliver
to FMC and to Lender's information protection department a copy of its written
information security program. The program shall be designed to make reasonable
efforts to achieve the following objectives:
(i) Ensure the security, integrity and confidentiality of
Confidential Information;
(ii) Protect against any anticipated threats or hazards to the
security or integrity of such information; and
(iii) Protect against unauthorized access to or use of such
information that could result in substantial harm or inconvenience to
the person that is the subject of such information.
c. Reporting and Audits.
(i) V-Tek regularly and on special request (after reasonable advance
written notice in the case of a special request) will provide to
Lender and FMC (A) reasonable reports on implementation of its
information security program and its information security plan for
Lender and FMC; (B) copies of its internal audits and test results
related to its security program; and (C) to the extent available, any
external audit reports or test results related to V-Tek's security
program, including but not limited to Reports on the Processing of
Transactions by Service Organizations prepared in accordance with the
American Institute of Certified Public Accounts Statements of Auditing
Standards No. 70.
(ii) V-Tek acknowledges and agrees that federal banking regulatory
agencies may audit V-Tek's performance at any time during normal
business hours. The audit may include both methods and results under
this Agreement.
d. V-Tek shall cause all independent contractors and other persons and
entities whose services are part of the Services V-Tek delivers to FMC hereunder
or who hold Confidential Information and Customer Information to implement an
information security
14
program and plan substantially equivalent to V-Tek's. V-Tek shall include or
cause its agents and contractors to include in a written agreement with such
persons substantially the provisions of this Section and shall cause its agents
and contractors to permit FMC and/or Lender to review the information security
program of such persons.
SECTION 12: INDEMNIFICATION
a. FMC will indemnify and hold harmless V-Tek from and against any loss,
cost, damage or expense which V-Tek may incur, including reasonable attorneys
fees and costs, as a result of any breach of FMC's obligations, representations
and warranties under this Agreement.
b. V-Tek will indemnify and hold harmless FMC from and against any loss,
cost, damage or expense which FMC may incur, including reasonable attorneys fees
and costs, as a result of any breach of V-Tek's obligations, representations and
warranties under this Agreement.
SECTION 13. LIMITATION OF LIABILITY
a. EXCEPT FOR (1) CLAIMS ARISING UNDER SECTION 10 (CONFIDENTIALITY) AND
SECTION 8.c. (NON-INFRINGEMENT) AND (2) COSTS OF REMEDIES REQUIRED BY ANY STATE
OR FEDERAL REGULATOR HAVING JURISDICTION OVER LENDER THAT ARE IMPOSED ON ACCOUNT
OF V-TEK'S DEFAULT HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY
(OR TO ANY PERSON OR ENTITY CLAIMING THROUGH THE OTHER PARTY) FOR LOST PROFITS
OR FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING
OUT OF OR IN ANY MANNER CONNECTED WITH THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH PARTY HAS BEEN
INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH
DAMAGES.
b. Except for claims arising under Section 10 (Confidentiality) and
Section 8.c (Non-Infringement), notwithstanding any term in this Agreement to
the contrary, V-Tek's aggregate liability under this Agreement shall not exceed
the greater of: (a) the total cumulative amount of fees paid to V-Tek hereunder,
or (b) if insurance coverage is available and in force for such claims, the
total amount of actual insurance coverage.
c. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, THERE ARE NO
REPRESENTATIONS OR WARRANTIES RESPECTING THE CUSTOMIZATIONS OR SERVICES PROVIDED
HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY
OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF V-TEK
HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF V-TEK IS AUTHORIZED TO ALTER OR
EXCEED THE WARRANTY OBLIGTATIONS OF V-TEK AS SET FORTH HEREIN.
15
SECTION 14: DATA STORAGE
a. V-Tek will take reasonable precautions to prevent the loss,
destruction or alteration of FMC's and/or Lender's files, data, programs and
other information received and held by V-Tek. V-Tek shall maintain back-up files
(including off-site back-up copies) of those files, data, programs and other
information and resultant output to facilitate their reconstruction in the case
of such loss, destruction or alteration, in order to minimize interruption of
Services. V-Tek will take reasonable steps and actions to protect the GATE
Systems from viruses.
b. V-Tek shall retain all data, data records and files relating to its
performance hereunder for a period of five (5) years after termination of this
Agreement, or longer if required by applicable law or regulation.
c. Upon the expiration or termination of this Agreement, FMC shall notify
V-Tek in writing of FMC's instructions for the disposition of all data and
materials provided to V-Tek by FMC or prepared by V-Tek at FMC's request. At
FMC's expense, V-Tek shall comply with such instructions or, in the absence of
such notification, shall return all such data and materials to FMC within thirty
(30) days of termination.
SECTION 15: PROGRAMMING SERVICES
FMC may request that V-Tek make certain enhancements or customizations to
the GATE Systems ("Customizations") that are not included as part of support and
maintenance services under Section 3. V-Tek shall provide to FMC programming
resources that are qualified and experienced in the programming of the GATE
Systems for these purposes; provided however, FMC shall pay for the use of the
such programming resources for Customizations at V-Tek's then current hourly
rates plus actual out of pocket costs for materials incurred by V-Tek as well as
reimbursement of travel expenses incurred. V-Tek shall make such Customizations
and perform such additional services as reasonably requested by FMC subject to
the terms and conditions of this Agreement, unless otherwise mutually agreed
upon by the parties in writing. Such Customizations and additional services
provided by V-Tek hereunder shall be set forth in separate statements of work or
specifications in accordance with the terms herein and such other terms as
agreed to by V-Tek and FMC, which statements of work or specifications shall
become part of and incorporated in this Agreement by reference.
SECTION 16: INDEPENDENT CONTRACTOR STATUS
FMC is contracting with V-Tek for the specific services described herein.
Nothing in this Agreement shall be construed to create a relationship between
the parties other than that of an independent contractor. Nothing in this
Agreement is intended to, or shall be deemed to, constitute a partnership or
joint venture between the parties. Neither party has the authority to bind the
other to any third person or otherwise to act in any way as the representative
of the other, unless otherwise expressly agreed to in writing signed by both
parties. V-Tek agrees to be responsible for all taxes and insurance applicable
under existing laws, other than any income tax or other taxes or fees that are
owed by FMC in conjunction with the loans, and will make all necessary payments
when due and will indemnify FMC against any claims or liabilities resulting
16
from a breach of this Section.
SECTION 17: DISASTER RECOVERY PLAN/FORCE MAJEURE
a. V-Tek will timely implement and maintain a reasonable disaster
recovery plan (the "Plan"), which Plan shall include provision for transfer of
operations to a "hot site" in the event of a disaster. Throughout the term of
this Agreement, V-Tek shall maintain a Plan and the capacity to execute such
Plan, which Plan, at a minimum, shall provide protection to FMC that is equal to
or better than that provided by the Plan currently in place. A copy of the
executive summary of V-Tek's Plan will be provided to FMC upon execution of this
Agreement. V-Tek will conduct a test of its Plan at least once every year. On an
annual basis and upon request by FMC, V-Tek shall provide FMC with an executive
summary of V-Tek's most current Plan and a detailed description of the Plan's
test results. Upon the occurrence of any disaster requiring use of V-Tek's Plan,
V-Tek shall promptly notify FMC of same, and V-Tek shall provide to FMC equal
access, to the extent reasonably practicable, as V-Tek's other customers in the
provision of the services contemplated by this Agreement. If FMC reasonably
determines that V-Tek has not or cannot put its Plan into effect quickly enough
to meet FMC's needs and the time frames set forth in the Plan or is otherwise
unable to provide equal access to such services, V-Tek shall promptly assist and
support FMC, at FMC's sole expense, in seeking such services from an alternative
source.
b. Subject to the foregoing, no party hereto shall be responsible for, or
in breach of this Agreement if it is unable to perform as a result of delays or
failures due to any cause beyond its control, howsoever arising.
SECTION 18: TERM AND TERMINATION
a. The initial term of this Agreement shall commence on July 1, 2003 and
shall continue until May 31, 2005, unless earlier terminated in accordance with
the provisions of this Section 18. Following the initial term, this Agreement
shall automatically renew for successive one-year terms unless either party
provides written notice of non-renewal and termination not less than ninety (90)
days prior to the end of the then-current term.
b. FMC may terminate this Agreement upon thirty (30) days written notice
if the Lender Origination Services Agreement terminates for any reason.
c. If either party is in breach hereof, the other may terminate this
Agreement upon written notice, unless the breach is cured within thirty days
after receipt of written notice specifying the breach in reasonable detail.
Notwithstanding the foregoing, FMC shall have the right to terminate this
Agreement immediately in the event V-Tek fails to cure a deficiency identified
as a result of an audit within the time frame set forth in Section 4 c. If the
breach or failure to perform is governed by Section 17 above ("Disaster Recovery
Plan/Force Majeure"), the thirty (30) day cure period will be extended
day-for-day by the number of days, not to exceed sixty (60), that the party is
prevented from performing by circumstances beyond its reasonable control,
provided that no such extension will apply to a breach of V-Tek's obligations
under the last sentence of Section 17(a).
17
d. Subject to applicable bankruptcy and similar laws, if either party
enters into bankruptcy, receivership, assignment for the benefit of its
creditors or other similar proceedings affecting the rights of its creditors
generally, this Agreement will be deemed automatically terminated without the
need of any notice from the other party, unless the other party is given
assurances it considers both acceptable and satisfactory that the orderly
operation of this Agreement and payment of the fees required hereunder will not
be adversely affected.
e. Upon termination of this Agreement, all copies of the GATE Systems and
related user documentation, books and records in V-Tek's possession relating to
the Services performed under this Agreement will promptly be turned over to FMC,
provided that V-Tek may keep copies as it deems advisable for archival purpose
or as required by applicable law.
f. If either party terminates this Agreement for cause, V-Tek shall
support FMC in making an orderly transition to a successor service provider for
all or any part of the Services. In the event FMC terminates for cause, FMC
shall compensate V-Tek for such support according to V-Tek's actual
out-of-pocket cost of personnel and material for such services. In the event
V-Tek terminates for cause, FMC shall pay V-Tek for use of V-Tek personnel for
such transition services at V-Tek's then current hourly rates that it charges
for its programmers plus actual out of pocket costs for materials and
reimbursable travel expenses incurred by V-Tek for such transition services. If,
at the expiration of the Initial Term of this Agreement or at the end of the
then current term of the Agreement, either party decides not to renew this
Agreement or enter into a new agreement, V-Tek shall support FMC in making an
orderly transition to a successor service provider for the Services and FMC
shall compensate V- Tek for such support according to V-Tek's then current
hourly rates for its personnel plus actual out of pocket costs including
materials for such services. From the date on which this Agreement expires or is
terminated until the date on which all accounts of FMC for which V-Tek has
provided the Services have been converted to another service provider, V-Tek
shall provide the Services according to the terms and conditions set forth in
this Agreement; provided, however, FMC shall continue to pay V-Tek all of the
fees provided for in this Agreement while V-Tek continues to provide Services to
FMC, and in addition, FMC agrees to pay V-Tek for transition services as
provided for in this Agreement. All payments to V-Tek for transition services
and costs under this Section shall be paid by FMC on a monthly basis and within
30 days of submission of invoices.
g. The provisions of Sections 4 b. ("Access to Records"), 8 ("Warranties
and Representations"), 9 ("Proprietary Rights"), 10 ("Confidentiality"), 12
("Indemnification"), 13 ("Limitation of Liability"), 14 ("Data Storage"), and 19
("Miscellaneous") will survive any termination of this Agreement.
SECTION 19: MISCELLANEOUS
a. This Agreement contains the entire understanding of the parties
relating to this subject matter. It will be binding on and inure to the benefit
of the parties' respective successors and assigns, provided that it may not be
assigned by V-Tek without FMC's prior written consent, which consent shall not
be unreasonably withheld.
18
b. Each party's respective rights, remedies, powers, privileges, and
discretions ("Rights and Remedies") will be cumulative and not exclusive. No
delay or omission by either party in exercising or enforcing any of its Rights
and Remedies will operate as or constitute a waiver of them. No waiver by a
party of any default under this Agreement will operate as a waiver of any
subsequent or other default under this Agreement. No single or partial exercise
by a party of any of its Rights and Remedies will preclude the other of further
exercise of such Rights and Remedies. No waiver or modification by a party of
the Rights and Remedies on any one occasion will be deemed a continuing waiver.
A party may exercise its various Rights and Remedies at such time or times and
in such order of preference as it in its sole discretion may determine.
c. This Agreement will be governed by California law, without regard to
the conflict of laws provisions thereof.
d. This Agreement may be modified only by written agreement of the
parties hereto, except as may otherwise be set forth herein.
e. Any determination that any provision of this Agreement is invalid,
illegal, or unenforceable in any respect shall not affect the validity,
legality, or enforceability of such provision in any other instance and shall
not affect the validity, legality, or enforceability of any other provision of
this Agreement.
f. The parties acknowledge that Lender is a third party beneficiary of
all Sections herein to which it is referenced, with the right to enforce such
provisions against the applicable party. Reference to "third party" in this
Agreement includes, without limitation, the Lender and its employees and agents.
g. V-Tek shall not use any trade name, trademark, service xxxx, or any
other information which identifies FMC in V-Tek's sales, marketing, publicity
activities, including but not limited to, interview with representatives of any
written publication, television station or network, or radio station or network,
without the prior written consent of FMC.
i. This Agreement may be executed in counterparts, all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties under seal hereunto affix their signatures
by their duly authorized officers as of the day and year indicated above.
V-TEK SYSTEMS CORPORATION THE FIRST MARBLEHEAD CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxx
----------------------------- -----------------------------
Title: President/CEO Title: President and COO
-------------------------- ----------------------------
19
TABLE OF EXHIBITS
EXHIBIT A: GATE UNIVERSAL
EXHIBIT B GATE STUDENT
EXHIBIT C FEE SCHEDULE
EXHIBIT D: PERFORMANCE STANDARDS
EXHIBIT E: GATE UNIVERSAL SYSTEM SPECIFICATIONS
EXHIBIT F: INSURANCE COVERAGE
EXHIBIT G: REPORTS
20
EXHIBIT A
GATE UNIVERSAL SERVICES
There are two types of School participation in the GATE Universal loan program;
Web School or Data File School.
GATE UNIVERSAL WEB SCHOOL:
A School that participates in the Gate Universal System as a Web School will not
provide application data electronically. Applications will be initiated by the
Borrower through the Gate Universal System. The System will send all completed
applications to Bank of America for credit score, accept back credit results,
assign the correct Tier based on the approved Tier range, create an Application
Send File and send to AES for origination processing. The School will complete
the certification request online via AES One Link Certification System.
Implementation of a Web School will include the following:
- [**]
- [**]
- [**]
Service for a Web School will include the following:
- [**]
- [**]
- [**]
- [**]
- [**]
- [**]
- [**]
- [**]
- [**]
21
GATE UNIVERSAL DATA FILE SCHOOL:
A School that participate in Gate universal System as a Data File School will
provide their applications electronically within a data file. The data file can
be a proprietary or Common Line format (excluding CommonLine version 5).
Implementation of a Data File School will include the following:
- [**]
- [**]
- [**]
- [**]
- [**]
- [**]
Service for Data File School will include the following:
- [**]
- [**]
- [**]
- [**]
- [**]
- [**]
- [**]
- [**]
22
EXHIBIT B
GATE STUDENT SERVICES
There are two types of School participation in the GATE Student loan program:
Web School or Data File School.
GATE STUDENT WEB SCHOOL :
A School that participates in the Gate Student loan program as a Web School will
not provide application data electronically. Applications will be initiated by
the Borrower through FMC's existing GATE Student System. Then, a paper
certification request will be emailed to the School. The School will complete
the certification request and forward to AES for AES system entry.
Implementation of a Web School will include the following:
- [**]
- [**]
- [**]
Service for a Web School will include the following
- [**]
- [**]
GATE STUDENT DATA FILE SCHOOL:
A School that participates in GATE Student loan program as a Data File School
will provide their applications electronically within a data file. The data file
can be a proprietary or CommonLine format (excluding CommonLine version 5).
Implementation of a Data File School will include the following:
- [**]
- [**]
- [**]
- [**]
- [**]
- [**]
23
Service for a Data File School will include the following:
- [**]
- [**]
- [**]
- [**]
- [**]
- [**]
24
EXHIBIT C
FEE SCHEDULE
A. Fees for GATE Universal Services
The pricing for the GATE Universal Services is based on the School tier
structure and type of participation in the Gate Universal System.
(Per School; One time charge only)
School Implementation Fees $[**].
Web Enrollment School $[**].
Data File School * $[**].
Conerter Services/Web Claiming $[**].
Data File School ** $[**].
There will be additional development hours required to create school specific
information web page. These hours will be charged separately at an hourly rate
of $[**].
* If a school requires any data file mapping, the additional development hours
will be charged separately at an hourly rate of $[**].
** These schools have already been implemented in the Converter Services program
or Web Claiming system and will not require any data file mapping or testing of
inbound and outbound files.
Monthly Service/Support Fee
Web Tier 1 $[**]. [**] Loan Records
Web Tier 2 $[**]. [**] Loan Records
Web Tier 3 $[**]. [**] Loan Records
Data File Tier 1 $[**]. [**] Loan Records
Data File Tier 2 $[**]. [**] Loan Records
Data File Tier 3 $[**]. [**] Loan Records
The annual fee for support and maintenance of the GATE Universal System is
[**]% of the total aggregate fees paid to V-Tek for development and
Customizations related to the GATE Universal System. Such fee is adjusted
monthly based on all customizations work completed to date, and is payable in
monthly installments.
DELIVERY
FMC will notify V-Tek of School implementation with all necessary information in
writing. V-Tek will require a minimum of 3 weeks to implement a School. If a
School requires data mapping, the implementation schedule and time period will
be determined at the time of the request.
25
TERMS
Implementation fee is paid on completing of the implementation tasks. Monthly
fees will start when School begins to use the GATE Universal System
(production date).
B. FEES FOR GATE STUDENT SERVICES
The pricing for the GATE Student Services is based on the type of
participation in the GATE Student System.
School Implementation Fees (Per school; One time charge only)
Web Enrollment School $[**].
Data File School * $[**].
Conerter Services/Web Claiming $[**].
Data File School ** $[**].
There will be additional development hours required to create school specific
information web page. These hours will be charged separately at an hourly rate
of $[**].
* If a school requires any data file mapping, the additional development hours
will be charged separately at an hourly rate of $[**].
** These schools have already been implemented in the Converter Services program
or Web Claiming system and will not require any data file mapping or testing of
inbound and outbound files.
Monthly Service/Support Fee
Web Enrollment School $[**].
Data File School * ([**]) $[**].
Data File School ([**]) $[**].
Conerter Services/Web Claiming $[**].
DATA FILE SCHOOL
* The first [**] schools are billed at $ [**] per school per month. School
number [**] on will be billed at [**] per month.
The annual fee for support and maintenance of the GATE Universal System is
[**]% of the total aggregate fees paid to V-Tek for development and
Customizations related to the GATE Student System. Such fee is adjusted
monthly based on all customizations work completed to date and is payable in
monthly installments.
DELIVERY
FMC will notify V-Tek of School implementation with all necessary information in
writing. V-Tek will require a minimum of 3 weeks to implement a School. If a
School requires data mapping, the implementation schedule and time period will
be determined at the time of the request.
TERMS
26
EXHIBIT D
PERFORMANCE STANDARDS
1. SERVICE LEVEL REQUIREMENTS
FMC requires that all components of the GATE Systems are available [**] at a
service level of [**]%, excluding scheduled maintenance and excluding periods
during which V-Tek's Internet Service Provider is unable to provide normal
service. All network/application configurations should be designed to have
full redundancy.
2. PROACTIVE NOTIFICATION; RESPONSE ESCALATION HIERARCHY
- V-Tek will notify FMC of any unscheduled outages within [**] minutes of
detection.
- Notifications shall include customer impact; estimated customer base
affected, and expected duration.
- V-Tek will also provide notification at the end of any unscheduled outages.
- V-Tek Outage Escalation Hierarchy (in order of contact)
V-Tek Name Phone Email and/or Pager
---------------------------------------------------------------------------
Primary On-call Tech Support on-call 000-000-0000
contact pager
Secondary/
Backup Xxx Xxxxxx xxxxxxx@x-xxx.xxx
If these fail to yield results as quickly as required, work down this list:
FMC Name Phone Email and/or Pager
----------------------------------------------------------------------------------
Primary On-call Xxxx Xxxxxx Xxxxxxx@xxxxxxxx.xxx
contact
Secondary/
Backup Xxx Xxxxx Xxxxxx@xxxxxxxxxxxxxxx.xxx
3. KEY PERFORMANCE INDICATORS:
[**]
[**]
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EXHIBIT E
GATE UNIVERSAL SYSTEM SPECIFICATIONS
See attached Business/Functional Requirement Documents for the following Tasks
and Processes:
Task #1233 - AES School Inquiry
Task #1150 - Outbound File Process
Task #1151 - Email Generation
Task #1153 - Credit Results
Xxxx #0000 - Credit Analysis
Xxxx #0000 - Reporting Process
Task #1156 - Borrower Application Enrollment (Web)
Task #1157 - Borrower Web Claiming
Task #1158 - Cosigner Information Entry (Web)
Task #1160 - Borrower Acceptance Entry (Web)
Task #1161 - Borrower Requests New Cosigner Entry (Web)
Task #1180 - File Reconciliation and Mapping
Task #1231 - AES Login and Function Menu
Task #1232 - AES Cosigner Inquiry
Task #1149 - Validation and Inbound File Process
Task #1234 AES Password Inquiry
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EXHIBIT F
INSURANCE COVERAGE
During the term of the Agreement V-Tek will provide, pay for and maintain in
full force and effect the insurance outlined herein for coverages at not less
than the prescribed minimum limits of liability, covering V-Tek activities,
those of any and all subcontractors, or anyone directly or indirectly employed
by any of them, or anyone for whose acts any of them may be liable.
1. Commercial General Liability Insurance (Primary and Umbrella/Excess)
with limits of not less than Two Million Dollars ($2,000,000) per
occurrence and in the aggregate for bodily injury, personal injury and
property damage. Coverages must include the following: Blanket
Contractual liability, products and completed operations, independent
contractors, and severability of interest and waiver of subrogation
against all parties described as additional insureds. FMC and its
affiliates are to be named as Additional Insureds.
2. Workers' Compensation Insurance in compliance with statutory limits
and Employer's Liability Insurance with limits of not less than One
Million Dollars ($1,000,000).
3. Fidelity Bond or Crime Insurance covering any loss caused by the
dishonesty of V-Tek's or its subcontractor's employees in limits of
not less than One Million Dollars ($1,000,000), said insurance to name
FMC, its parent and affiliates as Loss Payees on any Proof of Loss
claim filed in connection with services provided under this Agreement.
This insurance shall be maintained during the term of this Agreement
and for at least two years thereafter.
5. Errors and Omissions coverage in limits of not less than One Million
Dollars ($1,000,000) per occurrence.
All insurance shall be written through companies having an A.M. Best's rating of
at least A VII or with such other companies as may reasonably be approved by
FMC. All such liability insurance maintained by V-Tek or any subcontractor shall
include the condition that it is primary and that any such insurance maintained
by FMC or any other additional insured is excess and non-contributory.
Certificates of Insurance evidencing such coverages shall be furnished FMC prior
to commencement of this Agreement and at each subsequent policy renewal date.
The Certificates shall provide for not less than thirty (30) days written notice
to FMC prior to policy cancellation, non-renewal or material change.
The required coverages referred to and set forth in this Section shall in no way
affect, nor are they intended as a limitation of, V-Tek's liability with respect
to the performance of its obligations under this Agreement. To the extent
permitted by the applicable insurance company, V-Tek further releases, assigns
and waives any and all rights of recovery against FMC and its affiliates,
employees, successors and permitted assigns which V-Tek may otherwise have or
acquire in or from, or which are in any way connected with any loss covered by,
policies of insurance maintained or required to be maintained by V-Tek pursuant
to this Agreement.
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EXHIBIT G
REPORTS
Statistical report of system uptime and availability on a weekly basis
In addition, the Gate Universal system will generate the following plain text
reports:
1. BofA / FMC Credit Pending Report (Daily AM). - This report contains all loans
that are pending a credit decision from BofA.
2. School Weekly Status Report (Weekly Monday AM) - This report contains all
loans that have yet to be extracted to PHEAA for processing.
3. BofA 3rd party denial report - This report contains all loans that received
credit approval but did not meet the school minimum tier setup.
4. BofA Credit Request report - This report contains all loans that need a
credit decision from BofA.
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