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EXHIBIT 10.49
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL
PHOENIX INTERNATIONAL LTD., INC.
COOPERATIVE MARKETING AGREEMENT
Siemens Nixdorf Informationssysteme AG ("SNI")
Date: 28/6/97
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(x) Corporation ( ) Partnership
( ) Limited Partnership ( ) Limited Liability Company
Country/State of Organization: Germany
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Address: Xxxx-Xxxx-Ring 0 - 00000
Xxxxxx
Xxxxxxx
Attention: ***
This COOPERATIVE MARKETING AGREEMENT (this "Agreement") is entered into as of
the date first set forth above (The "Commencement Date") by and between Phoenix
International Ltd., Inc., a Florida corporation ("Phoenix"), and the party first
identified above as SNI. SNI and Phoenix (jointly "the Parties"), intending to
be legally bound, hereby agree as follows:
1. APPOINTMENT. Subject to the terms and conditions of this Agreement, SNI
hereby agrees to enter into a cooperative marketing and software
licensing and distributorship relationship with Phoenix as set forth in
this Agreement and the Addenda attached hereto and listed below (the
"Addenda"):
Knowledge Transfer Addendum
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Software License and Distribution Addendum
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2. DEFINITIONS. As used in this Agreement or Exhibits or Addenda attached
hereto, capitalized terms shall have the following meanings:
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*** Omitted pursuant to a request for confidential treatment and filed
separately with the Comission.
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2.1. Annual Price List means the price list attached hereto as Exhibit
C containing the recommended license fees agreed to by the
Parties, as reviewed and amended by the parties as set forth in
Section 5 below.
2.2. Confidential Information means any business, technical or other
information furnished or disclosed by one Party to the other Party
or discovered by one Party as a result of examination or
inspection of facilities or product prototypes of the other Party.
Confidential Information shall in all cases include all object and
source code, development level documentation, and technical
information regarding the Software, products and all marketing and
product development information provided by one Party to the
other. Information which is disclosed orally will be deemed to be
Confidential Information provided that it is identified as
confidential at the time of disclosure or reduced to writing,
marked as confidential and provided to the other party, within
seven (7) days of disclosure.
2.3. Documentation means the documentation associated with the Software
as produced and provided by Phoenix to SNI with the Software, and
shall include system documentation and user manuals.
2.4. Eligible Prospect means a retail bank organized and doing business
in the Territory.
2.5. End Users means customers of SNI who license the Software under an
End User License Agreement.
2.6. End User License Agreement means the form of agreement or
agreements applicable to the license of the Software as agreed
upon by Phoenix and SNI from time to time. All End User License
Agreements shall be in English and shall be governed by the laws
of the United States, Germany, the United Kingdom, Holland, or
other choice of law acceptable to both Phoenix and SNI. SNI's
standard End User License Agreement is currently attached as
Exhibit D and has not been negotiated between Phoenix and SNI. The
parties shall use their best efforts to agree upon a standard form
of End User License Agreement within a reasonable period of time.
2.7. Intellectual Property Rights means all copyrights and design
rights, whether registered or unregistered, patents, patent
applications, patent registration rights, know-how, trade secrets,
Confidential Information, and other intellectual property related
to or arising in the Software or Documentation, including all
applicable architecture, designs, modules, routines, programming,
command structures, interfaces, and any Modifications thereto.
2.8 Maintenance and Support Agreement means the form of agreement or
agreements applicable to the maintenance and support of the
Software by SNI for End Users as set forth in Exhibit E, or as
otherwise agreed upon by Phoenix and SNI from time to time. SNI's
standard Maintenance and Support Agreement is currently attached
as Exhibit E and has not been negotiated between Phoenix and SNI.
The parties shall use their best efforts to agree upon a standard
form of Maintenance and Support Agreement within a reasonable
period of time.
2.9. Modification means a work which is based upon the Software, such
as a revision, modification, translation, abridgment,
condensation, expansion, or any other form in which such
preexisting works may be recast, transformed, or adapted, and
shall include any work that incorporates or is combined with such
a preexisting work or any portion thereof.
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2.10. Modify means, with respect to any of the Software, to make a
Modification.
2.11. New Release means a release of any of the Software to introduce
changes or additions to the Software for purposes of error
correction or enhancement of functionality, performance, or
features. A New Release is identified by a change in the digit(s)
to the right of the first decimal point in the Software version
number, such as 2.1 following 2.0 or 2.1.1 following 2.1.0.
2.12. Related Expenses mean all reasonable travel, meal, lodging and
other living expenses and all expenses for materials or equipment
incurred by Phoenix in the provision of services or otherwise in
the performance of its duties hereunder. Prior to incurring any
expense, Phoenix shall obtain the approval of SNI.
2.13. Software means the Phoenix software set forth in Exhibit A
attached hereto, as such Exhibit may be amended from time to time
in writing. The Software means the object code of the Software
only, along with all Modifications and New Releases provided to
SNI hereunder.
2.14. Territory means the regions and countries set forth in Exhibit B,
as such regions and countries exist as of the date of this
Agreement. The Territory may be amended from time to time in
writing by agreement of the parties.
2.15. Trademarks means the trademarks, service marks, and trade names
used by Phoenix in connection with its Software, products and
services as listed on Exhibit F.
2.16. SNI shall mean SNI, Siemens AG, and those subsidiaries that are at
least 50% owned by SNI or Siemens AG.
3. LICENSE
3.1. License Grant. Subject to the terms of this Agreement, and only as
appropriate under the attached Addenda, Phoenix hereby grants to
SNI the following rights and licenses to use the Software at its
premises within the Territory:
a. To use the Software as specifically allowed under the terms
of this Agreement and any Addenda;
b. Subject to completion of training, to use the Software for
back up, demonstrations, and evaluations involving Eligible
Prospects; and
c. To use the Trademarks, provided, however, that such use
shall be subject to reasonable advertising and promotion
guidelines which Phoenix may provide from time to time.
Phoenix reserves the right to disallow any use of the
Trademarks which would in any way, in Phoenix's opinion,
harm the validity or value of the Trademarks.
3.2. Restrictions. SNI shall not:
a. Copy or reproduce the Software in any manner whatsoever
except as reasonably necessary for demonstration,
marketing, backup and archival purposes, or as otherwise
permitted in attached Addenda;
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b. Provide the Software to any third party except (i) to an
affiliated corporation as defined in Clause 2.16 or (ii)
within the Territory and pursuant to a fully executed End
User License Agreement;
c. Use the Software in production for the benefit of any third
party, except as otherwise allowed in Addenda attached
hereto or as otherwise provided by written agreement signed
by both Parties; or
d. Use the Software or Documentation or any Confidential
Information that it may acquire in connection with this
Agreement to:
(i) develop, have developed, support or invest in the
development of any product which has entirely or
partially the same material functions as any of the
Software;
(ii) develop, have developed, support or invest in the
development of any product which is competitive with
the Software; or
(iii) sell competing products or services.
4. TERM
4.1. Term and Renewal. This Agreement shall become effective on the
Commencement Date and shall continue for an initial period of
three (3) years. This Agreement shall automatically renew
thereafter for subsequent one year (1) periods, unless and until
terminated by either party, in its discretion, by written notice
at least ninety (90) days prior to the end of the then current
term. Either Party may terminate this Agreement at any time on at
least thirty (30) days' prior written notice if the other Party
materially breaches its obligations hereunder and has not remedied
such breach within fifteen (15) working days of receiving such
notice. Notwithstanding the termination of this Agreement, Phoenix
shall continue to be entitled to any fees earned prior to such
termination.
4.2. Survival. Notwithstanding termination of this Agreement for any
reason, Sections 12 (Title to Intellectual Property), 13
(Confidentiality), 15 (Employees), and 17 (General), and all other
provisions which by their nature or necessary implication ought or
were intended to continue to have effect, shall continue to have
effect in accordance with their terms. End User License Agreements
granted prior to the date of such termination shall continue in
effect , subject to the provisions of Section 4.4 below.
4.3. Actions Upon Termination. Except as otherwise permitted under
Section 4.4, upon termination of this Agreement SNI shall:
a. Promptly cease to, sub-license, market or promote the
Software;
b. Return all copies of the Software in the possession of SNI
to Phoenix and shall cease using the same for any purpose
whatsoever except as otherwise expressly allowed herein or
in Addenda hereto (including to support End Users pursuant
to Section 4.4 below);
c. for a period of six (6) months following termination, refer
to Phoenix all new prospective customers and all inquiries
received by it relating to the Software;
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d. Return and deliver to Phoenix, or cause to be returned and
delivered to Phoenix, or destroy all memoranda, notes, reports,
documents or media relating to or containing Confidential
Information, including any copies or extracts thereof as
appropriate, except for those documents required to be retained
by law or needed for SNI to carry out its rights as set forth in
Section 4.4 below.
e. Certify its compliance with this Section upon the written request
of Phoenix.
4.4. End User Support. Notwithstanding the foregoing, provided that (i) SNI
remains in compliance with the confidentiality, license, intellectual
property rights, and payment terms of this Agreement, (ii) continues to
meet its maintenance and support obligations to End Users in compliance
with Maintenance and Support Agreements in place, and (iii) continues to
pay Phoenix its percentage of all fees received for such services as
provided herein, SNI may:
a. continue to provide support and maintenance to End Users under
Maintenance and Support Agreements entered into prior to
termination of this Agreement,
b. for a period of six (6) months following termination, be entitled
to fulfill its obligations for any quotes or proposals for the
Software that were outstanding at the date of termination of this
Agreement;
In the event that SNI breaches the terms of any such agreement with an
End User regarding the Software, or fails or refuses to provide support
thereunder in accordance with its terms, Phoenix may assume any such
agreement, and SNI shall assign its rights under such agreement to
Phoenix, so that Phoenix may provide, or provide for the provision of,
such services.
5. ANNUAL PRICE LIST.
Attached hereto as Exhibit C is the current Phoenix Annual Price List
which contains the recommended license and maintenance fees for the
Software and Phoenix's professional service fees for the Territory. The
parties shall review and adjust the Annual Price List annually to reflect
changes in expenses, business environment, and other factors as
reasonable or necessary. If the parties cannot reach agreement on changes
to the Annual Price List within 30 days of the anniversary date of this
Agreement, then the Annual Price List review shall be escalated to the
respective managing director of each Party, or to a nominated
representative of the managing director to agree any changes. Once
agreed, the revised Price List will immediately be made part of this
Agreement.
6. OBLIGATIONS OF SNI
6.1. Customer Contacts. During the term of this Agreement, both Parties
shall work exclusively together with respect to any business
opportunity first presented by the other Party for the Software.
Notwithstanding the foregoing, if within a reasonable time
following the issuance of a Request for Information or Proposal or
similar event, Phoenix is requested by a potential customer to
work with another vendor, or if Phoenix is requested by another
vendor to jointly respond to an RFP presented by a potential
customer to such vendor, then Phoenix shall be allowed to work
with such other vendor, provided that Phoenix will also work with
SNI in such a situation if SNI had a working relationship with the
customer and presented the customer to Phoenix before the customer
makes such a request. In such a
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situation, Phoenix will not offer terms for such customer to such
other vendor which are more favorable than the terms which have
been offered to SNI.
6.2. Qualified Resources and Personnel. SNI shall employ suitably
qualified and trained personnel in order to perform its
obligations hereunder, and under any End User License Agreement,
Maintenance and Support Agreement, or other agreement with an End
User related to the Software. SNI shall at its own expense obtain,
license, and maintain the hardware, network, software, database
management systems, and telecommunications resources necessary to
support its contractual obligations hereunder and any support and
maintenance obligations in place with its End Users.
6.3. End User Vendor Selection. SNI will allow each End User to select
the hardware system it will use with the Software, subject only to
its certification of compatibility by Phoenix, and SNI will, if
requested, facilitate the procurement and support of such systems.
If such request is made by an End User, SNI and Phoenix will work
in conjunction with third party hardware vendors selected by such
End User who will provide, as required by the End User, additional
services to the End User, including, without limitation, systems
integration, software development and modification, consulting,
implementation, support and/or maintenance services.
6.4. End User Compliance. SNI shall inform Phoenix of all known
breaches by End Users of their agreements with Phoenix or SNI.
6.5. Notices, Logos, and Marks. SNI shall not alter, erase or obscure
any notices, legends, or Trademarks, or alter any indications of
ownership such as copyright, serial number or any other
designations or security provisions featured on copies of the
Software and Documentation, and shall include all such features on
all copies of the Software and Documentation made by SNI.
6.6. Copies of Materials. Upon written request by Phoenix, SNI shall
send to Phoenix copies of requested advertising, marketing, and
product material related to the Software created or to be used by
SNI.
6.7. Legal Compliance. SNI shall insure compliance with all laws,
including without limitation, tax, import, and export laws
governing the conduct of business in the Territory or in any
country in which SNI operates or markets or sells the Software.
SNI shall indemnify and hold Phoenix harmless from and against any
and all claims, loses or damages arising out of or related to
SNI's failure to comply with such laws. Without limiting the
foregoing, SNI shall:
a. Not ship, export or re-export the Software or Documentation
or any Phoenix product, information or service to any
country or territory without the prior written approval of
Phoenix, which approval will not be unreasonably withheld.
b. Notify its directors, officer, employees and agents that,
with respect to the subject matter of this Agreement, no
person shall make any payment or gift to any employee,
officer, or representative of any governmental agency or
instrumentality or any foreign political party, where such
payment would constitute a kickback, bribe, or illegal
payment.
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7. MAINTENANCE AND SUPPORT OBLIGATIONS
7.1. End User Maintenance and Support Agreements. SNI shall offer
maintenance and support services to End Users and shall use its
best efforts to ensure that each of its End Users signs a
Maintenance and Support Agreement for the Software, each of which
shall take effect no later than one hundred and eighty (180) days
after delivery to the End User of the Software and have a minimum
term of five (5) years.
7.2. Phoenix Support to SNI. In exchange for the Maintenance and
Support Fees and the Maintenance Fee Royalties due from SNI as set
forth in the Software License and Distribution Addendum, Phoenix
shall provide 2nd level support and maintenance to SNI (for itself
and for the benefit of End Users with Maintenance and Support
Agreements) for the then current release of the Software and, for
six (6) months following delivery of a New Release, for the
immediately preceding release of the Software as follows:
a. When SNI becomes aware of an apparent bug, fault, or other
defect in the software (an "error"), it will request
Phoenix to investigate it. SNI shall, upon request, provide
to Phoenix a listing of output and any other data or
information that Phoenix may require in order to reproduce
the error and the operating conditions under which the
error occurred or was discovered. Phoenix shall use all
commercially reasonable efforts to find corrections or
work-arounds for errors of which it is informed by SNI
within a reasonable period from the date of notification.
Fixes for material errors shall be included, to the extent
reasonable possible, in the next New Release of the
Software. If, in the opinion of an End User and SNI, an
error renders an End User unable to perform absolutely
necessary business transactions, Phoenix shall begin
investigation to find a correction or work-round for the
error within four (4) working hours. All support provided
to SNI by Phoenix shall be through telephone conference,
remote diagnostics and error correction at Phoenix's
offices. On-site service, if required, shall not be covered
by the Maintenance and Support Fee, and shall be performed
by Phoenix on a time and materials basis at the rates set
forth in the Annual Price List plus Related Expenses.
b. Upgrades. Phoenix shall provide, to SNI at no additional
cost, a copy of each New Release of the Software as Phoenix
may from time to time issue to its customers generally. SNI
may provide such new releases only to End Users during
their initial Warranty Periods and to End Users for whom
Phoenix has been paid Maintenance Fee Royalties as set
forth in the Software License and Distribution Addendum.
Phoenix shall provide reasonable telephone support to SNI
to assist in the installation and operation of each New
Release. For any particular New Release to operate
properly, all prior New Releases must have been installed.
7.3. SNI Customer Support. Phoenix authorizes SNI to, and SNI shall, under the
terms of the Maintenance and Support Agreements, provide Level 1 Customer
Support to End Users, either directly or through an affiliated company as
defined in Section 2.16 above. Level 1 Support shall include:
a. a contact point - (regional hot-line).
b. resolving questions about configuration and operation of the
Software.
c. determining whether reported problems are faults in the Software
or not.
d. logging and documenting all support calls and collecting initial
diagnostic information.
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e. reporting identified and documented errors to Phoenix via SNI
Competence Centres.
f. delivery of resolutions to the customer, including the dispatch
and, if applicable, the installation, of corrections or corrected
releases for End User.
7.4. Phoenix Support of End Users. Phoenix shall provide Level 2 Support to
SNI or, if problems cannot be resolved by working with SNI, SNI End
Users. Level 2 Support shall consist of the investigation, resolution,
and testing of system-level (i.e. non-user-related) problems which cannot
be resolved by Xxxxx 0 Xxxxxxx. Xxxxx 0 XXX personnel shall escalate such
problems to Level 2 Phoenix personnel and shall support Xxxxx 0 personnel
in the resolution of the problem by gathering required information and
data from the customer. Problems shall be classified and response times
for classifications shall be as follows:
a. Critical - Critical problems prevent a customer from conducting
normal business operations. Phoenix shall respond to Critical
problems within 1 hour. Phoenix will use reasonable efforts to
resolve Critical problems within one business day.
b. High - High problems have a serious impact on operations, but do
not prevent the conduct of business. Phoenix shall respond to High
problems within 4 hours. Phoenix will use reasonable efforts to
resolve High problems within two business days.
c. Medium - Medium problems are inconvenient but do not cause
disruptive problems. Phoenix shall respond to Medium problems
within one business day. Phoenix will use reasonable efforts to
resolve Medium problems within five business days.
d. Low - Low problems are cosmetic but not functional. Phoenix shall
respond to Low problems within one business day. Phoenix will
resolve Low problems as soon as reasonably convenient.
8. SOURCE CODE. Phoenix will remain the point at which all developments
associated with the source code are maintained. Neither SNI, its
subsidiaries nor its End Users shall be entitled to the source code of
the Software, except as otherwise set forth herein. Phoenix shall escrow
the source code for the Software for the benefit of SNI as set forth in
the Escrow Agreement attached hereto as Exhibit H.
9. PHOENIX'S OBLIGATIONS
9.1. Copies of the Software. Phoenix shall provide SNI with a
reasonable number of copies of the Software and Documentation as
necessary for SNI to market the Software and fulfill its
obligations and exercise its rights hereunder. All Software and
Documentation shall be provided in English.
9.2 Delivery. Phoenix shall supply the Software and Documentation to
SNI Competence Centres within thirty (30) days from the
Commencement Date.
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10. WARRANTY
10.1. Phoenix warrants that Phoenix is the owner of all rights, title,
and interest in and to the Software and Documentation or has
appropriate licensing rights therefore, and that there are, to the
best of Phoenix's knowledge, no claims, disputes, or proceedings
pending or anticipated which affect either the rights granted to
SNI hereunder or the warranties and representations made to SNI
hereunder.
10.2. Phoenix agrees to defend, indemnify and hold SNI and its End Users
harmless from any claims, proceedings, cost, expenses, damages,
penalties, and losses (including reasonable attorney fees)
resulting from any breach of the above warranty in this Section
10, provided that SNI:
a. notifies Phoenix of such claim, dispute, or proceeding
within thirty (30) days of SNI's knowledge thereof;
b. provides Phoenix with the sole authority, as far as
legally possible, to defend and settle such claim(s),
dispute(s), or proceeding(s) with counsel of Phoenix's
choice (SNI may participate at its costs with counsel of
its choice); and
c. cooperates as reasonably requested by Phoenix at Phoenix's
expense.
10.3. Independent of the foregoing, in case of justified infringement
claims of a third party, Phoenix shall use its best reasonable
efforts to either,:
a. acquire from such third party a license grant for the
intellectual property rights in question at Phoenix's cost
and procure for SNI the right to continue to use,
distribute and market the Software and Documentation
pursuant to the rights granted herein, or
b. replace or modify such infringing Software and/or
Documentation in a way that they shall not be deemed any
longer to constitute such infringement, or
c. take back such infringing Software and/or Documentation on
SNI's request and reimburse the related license fee to SNI
less a reasonable depreciation for the intermediate
commercial use of the Software based on a five year working
life of such Software and/or Documentation.
10.4. The indemnification shall not apply (i) where the infringement is
caused by modification of the Software made by SNI, or (ii) where
the infringement is caused by any use of the Software in
combination, operation or use with any machine, program or other
material not stated in the Documentation or approved by Phoenix
for use with the Software.
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10.5. This section 10 represents the exclusive remedy for SNI
against Phoenix for infringement of third Party rights to the
Software, Documentation, or any component thereof.
11. WARRANTIES, LIMITATIONS AND LIABILITY
11.1. Phoenix warrants that the Software and Documentation delivered by
Phoenix to SNI will perform substantially in accordance with the
Documentation. SNI's remedy for any breach of such warranty shall
be repair or replacement of the non-conforming software. In the
event any errors or divergence are discovered within one hundred
and eighty days (180) after delivery of Software and Documentation
to SNI ("Warranty Period"), SNI will use its reasonable efforts to
isolate and analyze such errors or divergence during the warranty
period before advising Phoenix of the errors and requiring
Phoenix's technical involvement to correct such errors. Phoenix
agrees to correct such errors at Phoenix's costs and expense
within the timeframe, classification, and error levels as stated
in Exhibit E.
11.2. Phoenix warrants that neither use nor functionality of the
Software will be limited, restricted, or otherwise impaired by the
calendar change due to the beginning of the new century (generally
known as the year 2000 problem).
11.3. Phoenix shall not be responsible under this Section 11 for fixing
any errors of Software caused by or resulting from any
modification of the Software not made or authorized by Phoenix, or
caused by use of the Software with hardware or operating
environments which have not been approved by Phoenix for use with
the Software.
11.4. The foregoing warranties of Phoenix are in lieu of all other
warranties, express or implied, including, without limitation, any
warranty of merchantability or fitness for a particular purpose.
The same applies mutatis mutandis for SNI.
11.5. With the exclusion of willful or gross negligent conduct, Phoenix
and SNI exclude vis-a-vis each other any liability for indirect or
consequential damages including, but not limited to, interruption
of business, loss of profit, loss of data or restoration of data.
11.6. With the exclusion of claims for personal injury or for willful or
grossly negligent acts or for misappropriation or infringement of
Intellectual Property Rights or equivalent claims, Phoenix's
liability to SNI for damages arising hereunder for any cause
whatsoever shall be limited (i) per event to *** for the products
or services out of which such liability arose and (ii) per End
User to ***.
11.7. With the exclusion of claims for personal injury or for willful or
grossly negligent acts or for misappropriation or infringement of
Intellectual Property Rights or equivalent claims, SNI's liability
to Phoenix for damages arising hereunder for any cause whatsoever
shall be limited (i) per event to *** for the products or services
out of which such liability arose and (ii) per End User to ***.
11.8. Phoenix shall indemnify SNI and its distributors and/or End Users
against any liability arising out of personal injury attributable
to Phoenix or its products, unless and insofar as such liability
is based on willful or negligent misconduct of SNI or its
distributors and/or End Users.
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*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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12. TITLE TO INTELLECTUAL PROPERTY
All right title and interest in and to all copies of the Software and
Documentation and all Intellectual Property Rights pertaining thereto
shall vest exclusively with Phoenix, including the Intellectual Property
Rights in all Modifications and other related works created by or for
Phoenix, SNI, or any End User, including their personnel and permitted
agents or contractors. To the extent that such rights do not
automatically vest with Phoenix, SNI agrees to and hereby does assign
such rights to Phoenix, and shall execute such instruments as may be
necessary to effect such assignment. To the extent Modifications are
produced by or under the supervision of SNI with the approval of Phoenix,
Phoenix hereby grants to SNI a non-transferable, and royalty free license
to reproduce, license and distribute such Modifications, but only to the
extent they are marketed and licensed or sold to End Users for use solely
with duly licensed versions of the Software pursuant to End User Licenses
in effect with Phoenix. Output and report formats created by SNI or any
End User shall by owned by SNI or such End User, provided that Phoenix
shall have a royalty free license to reproduce, license, and distribute
such formats in conjunction with the Software. SNI shall assist Phoenix,
at its reasonable request, in perfecting and maintaining Phoenix's rights
in the Software, including trade secrets and copyrights as applicable.
13. CONFIDENTIALITY
13.1. Non-Disclosure. Except as otherwise provided herein or as allowed
by the prior written consent of the parties, for the term of this
Agreement and for a period of three (3) years following the
termination of this Agreement, each Party shall (a) receive all
Confidential Information of the other in strict confidence, (b)
use the same degree of care which it uses to protect its own
confidential information to maintain the confidentiality and
secrecy thereof, (c) disclose the Confidential Information, and
permit the Confidential Information to be disclosed, only to its
employees who need access to the Confidential Information to carry
out the terms and intent of this Agreement, and (d) use the
Confidential Information only in furtherance of its rights and
obligations set forth in this Agreement. Both Parties shall keep
confidential the terms and conditions of this Agreement, but not
its existence, and all other information which is designated in
writing as confidential by one party to the other. Notwithstanding
the foregoing, Phoenix and SNI may make such disclosures as may be
required by order of a court of competent jurisdiction,
administrative agency or other government body, or by law rule or
regulation, provided, however, that to the extent possible, each
Party gives the other Party prior written notice of such
requirement and assists the other party in its efforts to oppose
such requirement. Both Parties may make any disclosure of this
Agreement as may be required by applicable securities laws as
determined by the affected Party with the assistance of counsel.
13.2. Exclusions. Confidential Information shall not include any
information (a) which at the time of disclosure to the receiving
party is in the public domain or thereafter enters the public
domain for reasons not attributable to any act or omission of the
receiving party in breach of its obligations hereunder, (b) which
receiving party can show was in the possession of receiving party
prior to the disclosure thereof to receiving party by the other
party , or (c) which the receiving party can show is acquired by
receiving party from an independent third party who does not
thereby breach an obligation of confidence to the other party and
who discloses it in good faith.
14. EXPORT CONDITIONS AND RESTRICTIONS. Phoenix and SNI shall cooperate to
condition licenses granted within and without the Territory, to require
changes to new End User License Agreements, and to make changes to the
Software and Documentation to the extent that Phoenix, in
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its reasonable judgment, determines that such changes may be necessary or
advisable for the protection of the Software and Documentation and
Phoenix's Intellectual Property Rights therein. SNI may not export the
Software outside of the Territory nor contact any prospective End User
outside of the Territory without Phoenix's prior written approval, which
may be granted or withheld in Phoenix's sole discretion.
15. EMPLOYEES. Barring prior agreement of the other Party, during the term of
this Agreement and for a period of twelve (12) months thereafter, neither
Party will directly or indirectly solicit for employment or employ any
employee of the other directly working with the other Party in fulfilling
obligations under this Agreement without the prior written consent of the
other.
16. ARBITRATION. In the event a claim, controversy or dispute between Phoenix
and SNI arises out of or in connection with this Agreement or the
transactions and business contemplated hereby, including the validity,
construction or enforcement thereof, either party may demand that such
matter be submitted to final and binding arbitration before a single
arbitrator selected by the parties in accordance with the then-existing
rules of the International Chamber of Commerce, Paris. The site of all
arbitration proceedings shall be Zurich, Switzerland , unless Phoenix and
SNI agree in writing to another site. The procedural laws of Zurich shall
apply where the ICC rules are silent. All arbitration proceedings and
records shall be in English. Issuance of an arbitration demand shall
suspend the effect of any default entailed by such claim, controversy or
dispute and any judicial or administrative proceedings instituted in
connection therewith, for the duration of the arbitration proceedings. If
Phoenix and SNI cannot agree on the identity of a single arbitrator
within five (5) days of receipt of the arbitration demand, each of them
shall appoint one (1) arbitrator and the party appointed arbitrators
shall appoint a third arbitrator within five (5) days of their
appointment. The arbitrator or arbitrators shall determine whether a
default has occurred, and shall deliver its or their decision within
sixty (60) days of the date of receipt of the arbitration demand,
specifying such remedy (including money damages) and shall (a) fully
implement the intent and purposes of this Agreement and (b) indemnify and
hold harmless the non-breaching party from all losses, costs and expenses
(including costs of arbitration and reasonable attorneys' fees) resulting
from the default. Limitation of Phoenix's rights in the Software, the
Documentation, or any associated intellectual property rights may not be
awarded under any circumstances. The right to demand arbitration and to
receive damages and obtain other available remedies as provided hereunder
shall be the exclusive remedy in the event an arbitration demand is made.
The arbitrators shall specify the basis for their decision. The
arbitrators shall not award any punitive damages. The decision of the
arbitrators shall be considered as a final and binding resolution of the
dispute, shall not be subject of appeal, and may be entered as a judgment
in any court of competent jurisdiction. Phoenix and SNI hereby consent to
the enforcement in the courts of each country in the Territory and the
United States of any arbitral judgement or award rendered pursuant to
this Section.
17. GENERAL
17.1. No Authority to Bind the Other Party. The parties to this
Agreement are independent contractors and, except as provided in
this Agreement or otherwise in a writing signed by both Parties,
neither Party is authorized to act on behalf of the other or to
bind the other. This Agreement does not establish any relationship
of agency, partnership, or joint venture. Each party shall bear
responsibility for its own employees, including terms of
employment, wages, hours, tax withholding, required insurance, and
daily direction and control. Except as otherwise set forth in an
Addendum, the relationship created hereunder is non-exclusive as
to each party.
12
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17.2. Successors and Assigns. Except to Siemens AG and except as
otherwise provided in this Agreement, neither Party may assign
this Agreement or any rights or obligations hereunder without the
prior written consent of the other Party. Any such attempted
assignment without such prior written consent shall be void and of
no force and effect. This Agreement shall inure to the benefit of
and shall be binding upon the permitted successors and assigns of
the Parties hereto.
17.3. Governing Law; Jurisdiction. The construction and interpretation
of, and the rights and obligations of the Parties pursuant to this
Agreement shall be governed by the laws of the State of Florida,
USA, and the federal laws of the United States.
17.4. Force Majeure. Neither Party shall be liable for any failure of or
delay in the performance of this Agreement for the period that
such failure or delay is due to acts of God, public enemy, civil
war, strikes or labor disputes, or any other cause beyond the
parties' reasonable control. Each Party agrees to notify the other
party promptly of the occurrence of any such cause and to carry
out this Agreement as promptly as practicable after such cause has
terminated.
17.5. Severability. In the event that any part of this Agreement is
declared by any court or other judicial or administrative body to
be null, void or unenforceable, such provision shall survive to
the extent it is not so declared, and all of the other provisions
of this Agreement shall remain in full force and effect.
17.6. Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to
have been duly given: (i) on the date of service if served
personally on the Party to whom notice is to be given; (ii) on the
day of transmission if sent via facsimile transmission to the
facsimile number given below, and telephonic confirmation of
receipt is obtained promptly after completion of transmission;
(iii) on the day of delivery if by FedEx, DHL, or similar courier
service; or (iv) upon receipt if sent otherwise. Notices shall be
addressed to the applicable party as set forth below unless an
alternate address has been provided in writing in conformance with
this provision:
If to Phoenix:
Phoenix International Ltd., Inc.
000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
If to SNI, attention Xx. Xxxxxxx Xxxxxxxxxx the address first set
forth above.
17.7. Amendments; Waivers. This Agreement may be amended or modified,
and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument
executed by the Parties hereto, or in the case of a waiver, by the
party waiving compliance. Any waiver by any Party of a condition,
or of the breach of any provision, term, covenant, representation
or warranty contained in this Agreement, in any one or more
instances, shall not be deemed to be nor construed as furthering
or continuing waiver of any such condition, or of the breach of
any other provision, term, covenant, representation or warranty of
this Agreement.
13
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17.8. Public Announcements. Neither Party shall make any press release
or public announcement concerning this transaction without the
prior written approval of the other Party unless a press release
or public amendment is required by law or by regulations binding
upon any of the Parties of their affiliates, in which case, the
disclosing Party agrees to give the non-disclosing Party prior
notice and an opportunity to comment on the proposed disclosure.
17.9. Entire Agreement. This Agreement contains the entire understanding
between the Parties hereto with respect to the transactions
contemplated hereby and supersedes and replaces all prior and
contemporaneous agreements and understandings, oral or written,
with regard to such transactions. All schedules and addenda hereto
and any documents and instruments delivered pursuant to any
provision hereof and agreed in writing are expressly made a part
of this Agreement as fully as though completely set forth herein.
The rights of the Parties are only as set forth herein, and there
are and shall be no implied rights or obligations whatsoever.
17.10. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but both of which shall
constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the date first
above written.
Phoenix International Ltd., Inc.: Siemens Nixdorf Informationssysteme AG:
By: /s/ Xxxxxx Xxxxxxxxxx By:
------------------------------ ------------------------------
Signature Signature
Xxxxxx Xxxxxxxxxx
--------------------------------- ---------------------------------
Name (Print) Name (Print)
Chairman & CEO
--------------------------------- ---------------------------------
Title Title
/s/ Xxxx X. Xxxxxxxxxx
--------------------------------- ---------------------------------
Witness Witness
14
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KNOWLEDGE TRANSFER ADDENDUM
Date: 28/6/97
----------------
This Addendum provides additional terms defining the relationship between SNI
and Phoenix. The terms and conditions contained herein are in addition to those
contained in the applicable Cooperative Marketing Agreement. If any terms
contained herein are inconsistent with the terms of the Cooperative Marketing
Agreement, this Addendum shall control.
1. Technical Training. Phoenix shall provide technical training in Orlando
to SNI's personnel in the installation, implementation, use, maintenance,
and support of the Software, as more particularly set forth in the
Education Program attached hereto as Exhibit G. Phoenix shall provide ***
technical training days at *** providing the technical training is
completed within *** from the Commencement Date. Thereafter SNI
shall pay Phoenix for all technical training ***. Wherever possible and
practical initial technical training will be performed in conjunction
with End User training days.
2. Sales Training. Phoenix shall provide *** days of sales training in
Europe at ***. Initial sales training shall be provided by ***. SNI shall
however be responsible for the travel and out of pocket expenses incurred
during this initial sales training. SNI to advise location, number of
attendees and date. SNI will be responsible for providing appropriately
configured hardware for the sales training course.
3. Additional License. Once the training has been completed, SNI shall have
the additional right and license to use the Software for the purpose of
providing support to End Users as set forth herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the date first
above written.
Phoenix International Ltd., Inc.: Siemens Nixdorf Informationssysteme AG
By: /s/ Xxxxxx Xxxxxxxxxx By: /s/ S.D. Xxxx
------------------------------ -----------------------------
Signature Signature
X. Xxxxxxxxxx S.D. Xxxx
--------------------------------- ---------------------------------
Name (Print) Name (Print)
Chairman & CEO Director - Strategic Alliances
--------------------------------- ---------------------------------
Title Title
/s/ Xxxx X. Xxxxxxxxxx
--------------------------------- ---------------------------------
Witness Witness
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
15
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SOFTWARE LICENSE AND DISTRIBUTION ADDENDUM
SIEMENS NIXDORF INFORMATIONSSYSTEME AG
Date: 28/6/97
---------------------
This Addendum provides additional terms defining the relationship between SNI
and Phoenix. The terms and conditions contained herein are in addition to those
contained in the applicable Cooperative Marketing Agreement. If any terms
contained herein are inconsistent with the terms of the Agreement, this Addendum
shall control.
1. Marketing. Phoenix hereby grants to SNI the semi-exclusive right and
license, subject to the restrictions set forth herein, to market the
Software to Eligible Prospects within the Territory. SNI shall use its
best efforts to identify and introduce Eligible Prospects to Phoenix and
to demonstrate the Software to such Eligible Prospects. Semi-exclusive
shall means that, in each country in the Territory, Phoenix shall not
authorize more than *** distributors or sales agents in addition to SNI.
2. Distribution License
a. Phoenix hereby grants to SNI the right and license to sub-license
and distribute the Software to End Users for use within the
Territory.
b. SNI shall require each End User to enter into an End User License
Agreement with SNI prior to delivery or distribution of the
Software to such End User. SNI may sub-license the Software to End
Users upon different terms and conditions other than those set
forth in the End User License Agreement, subject to i) Phoenix
written approval of such amended terms and conditions ii) SNI
bearing all the risk and liability arising because such terms go
beyond or below the provisions of the standard End User License
Agreement.
3. Competence Centres. SNI shall set up two Competence Centres for the
Software, one in Europe and the other in the Asia Pacific Region. These
centres will be the focus for daily operational contact with the Phoenix
development team and will support the other SNI subsidiaries. SNI may
seek to extend the number of competence centres on a regional basis. The
SNI Competence Centres will remain the focus points for SNI/Phoenix
Product development, co-operation and support. The license fee set forth
herein is for the use, license and support of the Software at these two
competence centres. Additional locations shall require additional fees.
4. ORDER CYCLE
4.1. Whenever SNI signs an End User License Agreement for the Software
or receives an order for such a license, SNI Competence Centre
shall give written notification to Phoenix of the following
information within ten (10) business days :
(a) the Software modules required.
(b) the number of licenses and branch licenses.
(c) the hardware platform, operating system, third party
products and relevant versions.
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
16
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(d) the required delivery time.
(e) the name of the End User and location of the premises at
which the Software is to be used, including a contact name.
(f) the name of a contact at the SNI Subsidiary.
(g) the base and branch license fees and maintenance fees, if
any, due from such End User.
Phoenix shall acknowledge such order in writing to such SNI
Competence Centre within ten (10) business days. Its
acknowledgment shall include a delivery date.
4.2. After receipt of the written order from SNI Competence Centre,
Phoenix shall produce a license certificate, an installation kit,
and printed copies of the Documentation, and shall ship the
foregoing to the appropriate SNI Competence Centre, which shall be
responsible for shipment to the End User.
4.3. When importing a Product or enhancement hereunder obtained from
Phoenix, SNI shall be responsible for ensuring compliance with any
import laws and regulations in the respective country. Where the
importer cannot obtain the necessary import license then it shall
be excused performance of this Agreement in relation to that
particular country and this Agreement shall continue with that
country removed from the related Territory. Unless otherwise
specified by Phoenix, SNI shall consider that the Software is not
export restricted under US law.
5. Copies of Software and Documentation. SNI shall be responsible for
delivering the requisite number of copies of the Software and
Documentation to each End User as set forth in valid End User License
Agreements.
6. Collection of Fees. SNI shall be responsible for invoicing and collecting
all fees due from End Users within the Territory. Phoenix shall invoice
SNI for all fees due Phoenix and SNI shall pay all such fees within 30
days upon receipt of such invoices.
7. Fees.
7.1. SNI License Fee. SNI shall pay to Phoenix a license fee of *** for
the rights granted hereunder and for delivery of the current
version of the Software, which shall be fully earned and billable
upon execution of this Agreement and paid by SNI within 30 days
following receipt of Phoenix's invoice. Such fee shall be fully
earned by Phoenix and non-refundable upon delivery of the current
version of the Software to both SNI Competence Centres. Additional
locations shall require additional license fees.
7.2. SNI Maintenance and Support Fee. SNI shall pay Phoenix a
Maintenance and Support Fee of *** per annum, payable quarterly,
for each of the first *** years after delivery of the Software to
SNI for remote Maintenance and Support provided to SNI under this
Agreement. On-site support shall be provided by Phoenix to SNI ***
at Phoenix's rates for such services as set forth in the Annual
Price List, plus reimbursement to Phoenix of ***. In the event
that *** licenses are sold within the first year, then the minimum
amount payable by SNI shall be ***. In the event that *** licenses
are sold during ***, then *** shall be *** due for support fees.
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
17
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7.3. End User License Fees.
a. Amount. The Annual Price List shall be used as a
recommendation for calculating End User fees. Fees charged
by SNI to End Users may be set *** of the Annual Price
List.
b. Base and Branch License Fee Royalties. Unless otherwise
agreed between Phoenix and SNI, for each End User, SNI
shall pay to Phoenix the greater of (i) *** of the actual
base and branch license fees due *** or (ii) *** of the
base and branch license fees *** for each End User. Phoenix
shall invoice SNI for the full value of the Software at
time of shipment. SNI shall remit to Phoenix *** within ***
days from receipt of invoice the remaining *** shall be due
and payable within *** days after delivery of the Software
to SNI. Any extension of payment terms offered to End Users
will be discussed with Phoenix and these payment terms may
also be extended for payment of invoice to Phoenix if
mutually agreed in writing. In the event that SNI do not
sell *** licenses within *** from the Commencement Date,
then the license fee split between Phoenix and SNI shall be
changed to *** for the next *** deals or until such time as
a total of *** licenses are sold.
7.4. End User Maintenance Fees.
a. Amount. Subject to a Maintenance and Support Agreement
being executed, SNI shall charge each End User an annual
Maintenance Fee. Maintenance Fees shall be *** of the base
and branch license fees charged to each End User, which may
be *** at the discretion of management.
b. Maintenance Fee Royalties. Unless otherwise agreed between
Phoenix and SNI, for each End User, SNI shall pay to
Phoenix the greater of (i) *** of the actual maintenance
and support fees due *** or (ii) *** of the base and branch
license fees *** for each End User. After *** years
following the Commencement Date or at such time as ***
licenses are sold, whichever is sooner, the foregoing
percentages shall be *** and *** respectively. The
foregoing fee splits are based upon SNI providing all first
level support to End Users. All maintenance fee royalties
shall be paid to Phoenix within 30 days of receiving
invoice from Phoenix.
7.5. Professional Services and Development Fees. Professional
Services and Development work includes installation,
conversion, training, Modification, implementation, and
consulting services. Phoenix shall provide such
Professional Services and Development to SNI and for and on
behalf of End Users as reasonably requested by SNI from
time to time. Fees for such services shall be billed to SNI
at a *** stated in Annual Price List, plus ***. All such
fees and expenses shall be paid by SNI within 30 days after
receipt of invoice from Phoenix. SNI shall be responsible
for billing and collecting such fees and expenses from End
Users.
7.6. Hardware and Network Fees. SNI shall keep *** for hardware
and network services provided to End Users other than as
set forth above. SNI shall consult with Phoenix for
certification of all hardware and network products sold to End
Users for use with the Software.
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
18
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7.7. Taxes. SNI shall pay all sales, use, import, VAT or other
taxes, tariffs, or duties arising out of the transactions
contemplated herein, however designated, based or levied by any
federal, state, municipal or local taxing authority in the
Territory, (exclusive of United States Federal, state or local
taxes based upon the net income of Phoenix) ("Taxes"). SNI shall
indemnify and reimburse Phoenix for all Taxes which Phoenix is
required to pay. Upon request by Phoenix, SNI shall provide
Phoenix satisfactory documentation of taxes paid. SNI may
challenge the applicability of any Tax only after paying the Tax
or giving Phoenix other satisfactory assurances of compliance.
Phoenix may increase its prices to cover any export taxes which
may arise.
Withholding tax regulations may apply within certain
countries within the Territory. SNI will notify Phoenix as soon
as possible of any obligation to deduct a withholding tax from
payments to Phoenix. Phoenix shall have sole responsibility for
applying for any required exemption certificates which SNI cannot
obtain on Phoenix's behalf. If no such tax exemption is obtained
from the local authorities and submitted to SNI, SNI shall be
obligated to withhold respective tax amounts. If Phoenix, after
using reasonable efforts, is unable to obtain an exemption from
any withholding tax, Phoenix shall immediately notify SNI so that
SNI may take appropriate steps to increase the cost to the End
User, and SNI shall insure that Phoenix is reimbursed for
all such taxes withheld from payments to Phoenix.
7.8. Set Off. Notwithstanding the foregoing, SNI shall
be entitled to keep base and branch license fees payable
to Phoenix up to *** from each of the first *** deals, or future
deals until the full amount of *** has been recovered from
Phoenix. Thereafter fees shall be split as set forth herein
8. Complementary Products and Services. SNI may provide to End Users
complementary products and services for provision to End Users with the
Software. SNI may include such products and services in End User License
Agreements.
9. Support. If SNI has completed the requisite training requirements set
forth therein, SNI may provide Support to End Users. Subject to receipt
of its share of the Maintenance Fee Royalties as set forth herein,
Phoenix shall provide that Support required by End Users and not provided
by SNI. If further support, non maintenance, is required by any End User,
Phoenix shall provide such support and SNI shall pay Phoenix the fees set
forth in the Annual Price List for such support, plus Related expenses.
10. Implementation. If SNI has completed the requisite training programs,
then SNI may implement the software sold as a result of SNI's efforts.
All Software not implemented by SNI shall be implemented by or at the
direction of Phoenix. Phoenix shall supply SNI with one copy of the
Software and Documentation on the appropriate electronic media for
implementation for each fully executed End User License Agreement
presented to Phoenix along with Phoenix's percentage of the license fees
for such End User.
11. Personnel. SNI shall assign a minimum of *** sales executives to focus on
sales of the Software in the Territory.
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
19
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12. Source Code. Phoenix shall license source code for the Software to End
Users when required by such End Users. A *** fee shall be charged for
license of the source code equal to the greater of *** or ***, which
amount shall be paid directly to Phoenix in its entirety.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the date first
above written.
Phoenix SNI
By: /s/ Xxxxxx Xxxxxxxxxx By: /s/ S.D. Xxxx
---------------------------- -----------------------------
Signature Signature
X. Xxxxxxxxxx S.D. Xxxx
------------------------------- --------------------------------
Name (Print) Name (Print)
Chairman & CEO Director - Strategic Alliances
------------------------------- --------------------------------
Title Title
/s/ Xxxx X. Xxxxxxxxxx
------------------------------- --------------------------------
Witness Witness
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
20
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EXHIBIT A
SOFTWARE
Means the object code version of the software generally referred to as the
"Phoenix Banking System", and does not include the required database management
system nor any other third party applications or systems software.
Phoenix Banking System version 1.37 and subsequent New Releases including the
following components:
Customer & Product Controls
Administrative Controls
Customer Processing
Deposit Processing
Loan Processing
Teller Processing
Nightly Processing
General Ledger Administration & Maintenance
Executive Information System
Data Dictionary: Deposits
Data Dictionary: Loans
Data Dictionary: Customer Information
Report Dictionary
Budgeting
Multi-Currency Module
21
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EXHIBIT B
TERRITORY
The Territory shall mean the following regions:
ASIA PACIFIC
EUROPE including Mediterranean countries
MIDDLE EAST
AFRICA
The following countries where Phoenix have an existing exclusive distribution
relationship shall not form part of the Territory:
Kenya, Nigeria, Zimbabwe, Ghana, Ethiopia, and Zambia
Kuwait, United Arab Emirates, Saudi Arabia, Lebanon, Egypt, Oman, Bahrain and
Qatar.
22
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EXHIBIT C
CONFIDENTIAL
NOT FOR DISTRIBUTION
===============================================================================
ANNUAL PRICE LIST (US DOLLARS)
PHOENIX RETAIL BANKING SYSTEM
===============================================================================
1. LICENSE FEES
A. Base License (one Server) ***
B. Remote Branch License
Branches
*** ***
*** $ ***
*** $ ***
*** $ ***
*** $ ***
*** $ ***
C. Virtual Branch License (per *** customer accounts) $ ***
2. IMPLEMENTATION FEES (PLUS TRAVEL & LIVING EXPENSES)
A. Requirements Review/Analysis ***
B. Conversion and Installation ***
C. Training ***
D. Enhancements and Modifications ***
3. ANNUAL CUSTOMER AND SOFTWARE SUPPORT FEES: *** of total License
(PLUS TRAVEL & LIVING EXPENSES) Fees per annum.
4. PROFESSIONAL SERVICES PER DAY RATES
Daily Rates ***
Senior/Executive Management *** ***
Project Management *** ***
Trainer *** ***
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
23
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Implementation Professional *** ***
Development Professional *** ***
5. THE COMPONENTS OF THE SOFTWARE AND DOCUMENTATION
Customer & Product Controls
Administrative Controls
Customer Processing
Deposit Processing
Loan Processing
Teller Processing
Nightly Processing
General Ledger Administration & Maintenance
Executive Information System
Data Dictionary: Deposits
Data Dictionary: Loans
Data Dictionary: Customer Information
Report Dictionary
Budgeting
Multi-Currency Module
THE SOFTWARE SPECIFICATIONS ARE LOCATED IN THE LICENSED DOCUMENTATION.
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
24
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EXHIBIT D
End User License Agreement
(to be attached)
25
26
CONFIDENTIAL
INTERNATIONAL SOFTWARE LICENSE AGREEMENT
----------------------------------------- --------------------------------------
Name of Customer: Effective Date (Day/Month/Year):
----------------------------------------- --------------------------------------
Type of entity: Country of formation:
----------------------------------------- --------------------------------------
Mailing Address: Business Address (if different from
mailing address):
----------------------------------------- --------------------------------------
City, State, Country, Postal Code: City, State, Country, Postal Code:
----------------------------------------- --------------------------------------
Phone Number (including country Fax Number (including country
and city code): and city code):
----------------------------------------- --------------------------------------
Whereas SNI is authorized to license and distribute certain retail banking
software developed and owned by Phoenix International Ltd., Inc. which Customer
wishes to license, then in consideration of the obligations of the parties set
forth below, the parties hereby agree as follows:
1 DEFINITIONS
1.1 "Additional Branch" shall mean a Remote Branch not listed in Exhibit D which
is connected to the Customer Network after the Effective Date, whether as a
result of changes in operations, growth, acquisition, or otherwise.
1.2 "Acquired Financial Institution" shall mean any financial institution in
which Customer acquires a greater than 50% interest or which merges with or into
the Customer.
1.3 "Affiliate" shall mean a parent company owning a majority of the Customer,
and majority owned subsidiaries of the Customer.
1.4 "Changes" shall mean corrections, updates, upgrades, translations, additions
and modifications to the Software and Documentation, and any other new or
additional works based in whole or in part on the Software or Documentation.
1.5 "Client Devices" shall mean workstations, personal computers and terminals
connected to the Server through the Customer Network which access and Use the
Software to input, read, interpret, manipulate, or display Customer's data.
1.6 "Confidential Information" shall mean any competitively sensitive or secret
business, marketing, or technical information of Phoenix, SNI, or Customer. In
all cases, Phoenix's Confidential Information shall include the Software and
Documentation, including all Changes. Confidential Information shall not include
information which is (i) generally known to the public or readily ascertainable
from public sources (other than as a result of a breach of confidentiality
hereunder), (ii) independently developed by the receiving party without
reference to or reliance on any Confidential Information of the disclosing
party, as demonstrated by written records of the receiving party, or (iii)
obtained from an independent third party who created or acquired such
information without reference to or reliance on Confidential Information.
1.7 "Customer and Software Support" shall have the meaning set forth in Section
8.
1.8 "Customer Network" shall mean the Server and the Client Devices at the
Remote Branches for which license fees have been paid hereunder.
1.9 "Designated Location" shall mean the street address of the location of the
Server as specified on Exhibit D. Customer shall notify SNI prior to any change
in the location of the Server. Upon such notice, Exhibit D will be deemed
automatically amended to reflect the change.
1.10 "Documentation" shall mean the system and user documentation relating to
the Software provided to Customer by or on behalf of SNI.
1.11 "Effective Date" means the date first set forth above as the date of this
Agreement.
1.12 "Licensed Products" shall mean collectively the Software and Documentation.
27
CONFIDENTIAL
1.13 "Related Expenses" shall mean reasonable travel and other out-of-pocket
expenses incurred by SNI in the performance of its obligations hereunder,
including (without limitation) airfare, travel costs, lodging costs, and meals;
the cost of optional products, services, and hardware requested or authorized by
Customer; shipping charges, courier and delivery charges; tape, cartridge and
diskette costs. To the extent reasonably possible, SNI will obtain the approval
of Customer prior to incurring substantial Related Expenses, and Customer will
not unreasonably withhold such approval.
1.14 "Remote Branches" shall mean the street addresses listed in Exhibit D where
Client Devices reside. The Remote Branches will include Additional Branches only
after the proper license fees for such Additional Branches have been paid to
SNI. At such time, Exhibit D will be deemed automatically amended to include
such Additional Branches.
1.15 "Server" shall mean the network file server serving as the Sybase database
for the Software.
1.16 "Software" shall mean the object code version of the Phoenix software
listed in Exhibit A, along with all Changes provided to Customer or authorized
by SNI hereunder.
1.17 "Term" shall have the meaning set forth in Section 4 below.
1.18 "Territory" shall mean the countries or territories set forth in Exhibit E.
1.19 "Third Party Software" shall mean software required to be used in
conjunction with the Phoenix Software, as more particularly described in Exhibit
C attached hereto.
1.20 "Use" (used as a noun or verb) shall mean the reading into computer memory
of the Software for the purpose of access and/or execution, in whole or in part.
2 LICENSE GRANT
2.1 License. Subject to the restrictions and limitations of this Agreement and
to payment of the fees set forth herein, SNI hereby grants to Customer a
non-exclusive, non-transferable sub-license during the term of this Agreement
and within the Territory to:
(1) Use the Software on the Customer Network;
(2) transfer the Software to a backup machine when the primary Server or
any associated machine elements required for Use of the Software are
temporarily inoperable or unusable, or to another machine for disaster
recovery testing (which may occur concurrent with normal Use of the
Software to process Customer's data on Customer Network), or for actual
disaster recovery and processing in the event the Customer Network is
non-functional due to the occurrence of disaster;
(3) make a reasonable number of additional copies of the Software for
testing, backup, and archival purposes in support of its ordinary Use of
the Software;
(4) use the Documentation in support of Customer's Use of the Software;
(5) may make a reasonable number of additional copies of the Documentation
or portions thereof as required to support the Use of the Software.
2.2 Restrictions. The Software may only be used for Customer's and its
Affiliates' own internal data processing needs. Customer may not, without the
prior written consent of Phoenix and SNI:
(1) translate, reverse engineer, de-compile, interpret or disassemble the
Software;
(2) transfer, distribute, sell, lease, or assign the Licensed Products;
(3) use the Licensed Products to process accounts or records, or to
generate output data, for the direct benefit of, or for purposes of
rendering services to, any business entity or organization other than
Customer and its Affiliates; or
(4) make any Changes to the Software.
2.3 Delivery. SNI will deliver to Customer one copy of the current unmodified
version of the Software (as listed in Exhibit A) in object code form, and one
copy of the current version of the Documentation. The licenses granted to
Customer under Section 2.1 shall become immediately effective, and shall not
delayed or contingent based on installation, operation, or the delivery or
completion of any services.
2.4 Records. Customer agrees to maintain a record of the number and location of
all copies of the Licensed Products in its possession. Customer shall provide
SNI with a copy of such record upon SNI's written request. Following prior
written notice, SNI or its designee shall have the right to enter Customer's
premises during regular business hours in a non-disruptive manner for the
purpose of inspecting the location and use of the Software and Documentation,
the compliance of Customer with the provisions of this Agreement, and the
standard procedures of Customer regarding retention, safekeeping, and disposal
of all media and materials pertaining thereto
3 PAYMENTS AND TERMS.
3.1 Fees. The fees and charges for products and services to be provided under
this Agreement are set forth in Exhibit B. All amounts shall be paid in U.S.
dollars by wire transfer
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to the bank account designated by SNI in accordance with the payment terms set
forth in Exhibit B, or as otherwise agreed between SNI and Customer.
Additionally, Customer shall pay all Related Expenses incurred by SNI.
3.2 Payment Terms. All invoices shall be due and payable on the date specified
in Exhibit A, or, if a date is not specified, not later than 30 days following
the date of invoice. Overdue amounts shall incur interest at the lesser of 1
1/2% per month or the highest rate allowed under applicable law. Time is of the
essence with respect to all payments due from Customer hereunder. Customer may
not suspend or set-off any payment due SNI hereunder on any basis whatsoever.
3.3 Taxes. Customer shall pay on a timely basis all sales, use, import, export,
VAT and other taxes, tariffs, and duties arising out the transactions
contemplated herein, however designated, based or levied by any federal, state,
municipal or local taxing authority of United States or the Territory (but shall
not include United States Federal, state or local taxes based upon the net
income of SNI) ("Taxes"). Customer shall promptly reimburse and shall indemnify
SNI for all Taxes which SNI is required by any taxing authority to pay. Customer
may challenge the applicability of any Tax only after paying the Tax or giving
SNI satisfactory assurance of compliance.
3.4 Fee Adjustments. SNI reserves the right to adjust its prices once per year
subject to 30 days advanced written notice. The Customer and Software Support
Fee shall not be increased by more than 15% per annum.
4 TERM AND TERMINATION
4.1 Term. This Agreement and the license granted herein shall have an initial
term commencing on the Effective Date and continuing for a period of 5 years
from the Effective Date (the "Initial Term"). Thereafter, this Agreement shall
automatically renew for additional 1 year periods unless and until either party
notifies the other in writing of its desire not to renew this Agreement at least
90 days prior to the last day of the Initial Term or any subsequent renewal
period.
4.2 Termination by SNI. SNI shall have the right to terminate this Agreement
upon the occurrence of any of the following events:
(1) Customer's material breach of any provision of this Agreement if such
breach is not cured within 20 days following written notice of such breach
to Customer; or
(2) Customer's failure to obtain and pay for Customer and Software Support;
or
(3) Customer ceases to do business, makes a composition or assignment for
the benefit of its creditors, makes a general arrangement with its
creditors concerning any extension or forgiveness of any of its secured
debt, becomes bankrupt or insolvent, suffers or seeks the appointment of a
receiver to the whole or any material part of its business, takes any
action to liquidate or wind up the whole or any material part of its
business, is found subject to any provisions of any bankruptcy code
concerning involuntary bankruptcy or similar proceeding, or suffers a
material adverse change in its financial position, and any such event
affects or delays payments to SNI hereunder; or
(4) Customer becomes a subsidiary of, or controlled as to its management
policy by, any government instrumentality; or
(5) Customer is required by laws in the Territory to offer or permit the
use or exercise (with or without payment to SNI) of the Software to any
other person or entity.
4.3 Result of Termination by SNI. In the event that this Agreement is terminated
under Section 4.2(1) above, Customer's license to Use the Software shall
immediately cease. In all other cases, Customer may continue to Use the Software
in accordance with this Agreement for up to 180 days following termination,
provided that Customer has paid and continues to pay all amounts due as if this
Agreement were still in effect. Upon expiration of such period (and immediately,
in the event of termination under Section 4.2(1)), Customer shall either return
to SNI or destroy all copies of the Licensed Products. Upon SNI's request,
Customer shall certify that it has completed such action.
4.4 Termination by Customer. Customer may terminate this Agreement upon the
occurrence of any of the following:
(1) SNI's material breach of any provision of this Agreement if SNI has not
initiated adequate steps to cure such breach within 10 days following
written notice of such breach to SNI; or
(2) SNI ceases to do business, makes a composition or assignment for the
benefit of its creditors, makes a general arrangement with its creditors
concerning any extension or forgiveness of any of its secured debt, becomes
bankrupt or insolvent, suffers or seeks the appointment of a receiver to
the whole or any material part of its business, takes any action to
liquidate or wind up the whole or any material part of its business, is
found subject to any provisions of any bankruptcy code concerning
involuntary bankruptcy or similar proceeding, or suffers a material adverse
change in its financial position, and any such event materially affects
SNI's ability to meet its obligations hereunder.
4.5 Result of Termination by Customer. In the event that this Agreement is
terminated by Customer under Section 4.4, or by SNI after the Initial Term,
Customer may
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continue to Use the Software in accordance with this Agreement until the later
of nine months following such termination or the end of the Initial Term. Upon
expiration of such period, Customer shall either return to SNI or destroy all
copies of the Licensed Products. Upon SNI's request, Customer shall certify that
it has completed such action.
4.6 No Refund. No payments shall be refundable upon termination of this
Agreement, whether such termination is by Customer or SNI.
4.7 Survival. All obligations with respect to restrictions on use of the
Licensed Products, confidentiality, payment of fees, ownership, and protection
of intellectual property rights shall survive any termination of this Agreement.
4.8 Non-exclusive Remedy. The rights and remedies of the parties are not
exclusive and are in addition to any other rights and remedies provided by law
or equity.
4.9 De-Conversion. Upon Customer's request, following the termination or
expiration of Customer's right to Use the Software, SNI shall assist Customer
with the conversion of its data from its then current format into a generic
format of Customer's choice. Customer shall pay SNI on a time and materials
basis for such assistance at its then current published rates for the Territory,
plus Related Expenses.
4.10 Source Code. Phoenix has deposited the most current version of the source
code for the Software with an independent escrow agent. In the event that SNI,
Phoenix on SNI's behalf, or either of their successors, shall cease to provide
Customer and Software Support, Customer's license for the use of the Software
hereunder is still in effect, and Customer has paid its Customer and Software
Support Fee and all other fees due hereunder, Customer shall have the right to
obtain, for its own sole and exclusive use for the sole purpose of maintaining
and supporting the Software, with no right of transfer, a single copy of such
source code from the escrow agent, subject to the terms of this Agreement.
5 TITLE
5.1 Ownership. The Software and Documentation are (i) copyrighted works
protected by copyright laws, treaties and conventions of the United States and
the Territory and (ii) contain trade secrets and Confidential Information of
Phoenix protected under applicable law of the United States and the Territory.
Phoenix retains all right, title, and interest in and to the Software,
Documentation, and all copyright, trade secret, patent and other intellectual
property rights contained therein, subject only to the limited license granted
to Customer in Section 2 hereof. Phoenix shall also exclusively own all Changes
to the Licensed Products, whether made by or on behalf of Phoenix, Customer, or
their employees, agents or otherwise. To the extent that Changes, including all
associated intellectual property rights, are not owned in their entirety by
Phoenix immediately upon their creation, Customer agrees to assign (and hereby
automatically assigns) all right, title and interest therein to Phoenix, without
any requirement of consideration or further documentation. Customer agrees to
take such further action and execute such further documentation as Phoenix may
reasonably request to give effect to this Section 5.1.
5.2 Report Formats. All output and report formats (e.g., ad hoc reports, SQL
queries, etc.) created by Customer shall be jointly owned by Phoenix and
Customer, and Phoenix shall have the right to license such output and report
formats to other users of the Software without payment of any fee to Customer.
Likewise, Customer shall have the benefit of output and report formats created
by other end users. To the extent such output reports derive from or contain any
part of the Software or Documentation, the restrictions applicable to the
Software and Documentation shall apply to any use thereof.
5.3 Infringement. Customer shall immediately notify Phoenix in the event that
it discovers any infringement of Phoenix's rights in the Licensed Products
or any violation of the terms of a License Agreement, and shall, at Phoenix's
expense, cooperate with Phoenix and assist in the prosecution of Phoenix's
claim.
6 Installation
SNI shall install the current unmodified version of the Software on the Customer
Network.
7 CUSTOMER OBLIGATIONS
7.1 Customer Contact. Customer shall appoint a Contact Person, listed on
Exhibit D, to serve as the focal point of communication between SNI and
Customer. SNI shall direct all communications concerning Customer to the
Customer Contact. Customer may change the Contact Person at any time upon
written notice to SNI.
7.2 Hardware and Software Requirements. Prior to Installation of the Software,
Customer shall license and obtain (i) the Third Party Software and (ii) the
Customer Network. The Customer Network must be in compliance with the Phoenix
Network and Configuration Standards Guide as provided by SNI to Customer, and
the other requirements set forth in Exhibit C. The Software will not work
properly if the Customer Network is not in compliance with such standards.
Alternative hardware and software configurations will be evaluated for use with
the Software by SNI upon Customer's reasonable request, provided that Customer
pays all of SNI's costs in connection with such evaluation. Customer shall
provide at its cost an on-line telecommunications link with a telephone modem in
order to provide SNI and Phoenix access to the Customer Network. Neither Phoenix
nor SNI shall not use such access for any reason other than to provide Customer
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and Software Support hereunder and to monitor the size, configuration, and
performance of the Customer Network.
7.3 Subsequent Releases. Customer shall install all corrections, enhancements,
and subsequent releases of the Software within 90 days after receipt from SNI.
7.4 Personnel. Customer shall keep its personnel trained in the operation of the
Licensed Products and the Customer Network.
8 CUSTOMER AND SOFTWARE SUPPORT
8.1 Customer and Software Support. Following delivery of the Software to
Customer, and subject to payment by Customer of the Customer and Software
Support Fees set forth in Exhibit A, SNI shall provide Customer with Customer
and Software Support, which shall consist of the following:
(1) SNI shall provide Customer with updates, patches, bug fixes and new
releases of the Software and Documentation which SNI provides to its
customers generally;
(2) SNI will provide remote telephonic support for the Licensed Products
Monday through Friday, 8:00 AM to 5:00 PM eastern standard time and
emergency telephonic support via pager access 24 hours a day, 365 days per
year. Telephone support shall include (i) diagnosing errors or malfunctions
in the Software and malfunctions caused by operator error, (ii) advising
Customer of corrective measures, and (iii) clarifying operating
instructions contained in the Documentation; and
(3) SNI shall insure that the Software operates in conformance with the
Documentation. If the Software fails to operate in conformance with the
Documentation, and the problem cannot be remedied thorough telephonic
support, SNI shall use all reasonable efforts to correct or replace the
Software or portions thereof or provide a temporary work-around for such
problem within a reasonable period of time based upon the impact of the
problem on Customer's ability to operate.
8.2 Customer Obligations. Customer shall promptly notify SNI of all problems
with the Software, and shall, if applicable, provide assistance in identifying
and detecting problems, errors, and malfunctions. As requested by SNI, Customer
shall provide data and information regarding all errors in sufficient detail and
with sufficient supporting documentation to enable SNI to diagnose, and if
necessary, recreate the problem, error, or malfunction. Customer shall install
all subsequent releases of the Software within 30 days of receipt.
8.3 Limitation. Customer and Software Support shall not cover malfunctions and
errors caused by (i) unreported defects, (ii) misuse or abuse of the Software,
(iii) by use of the Software with hardware or software other than that approved
by Phoenix for use with the Software, or (iv) Changes made other than by or with
the express written authority of Phoenix. Customer and Software Support shall
only be provided for the most current release of the Software provided to
Customer, and, for a period of 90 days after delivery of the most current
release, of the previous release of the Software. Support may be provided for
previous releases after such 90 day period at SNI's option at SNI's then current
time and materials rates for such services for the Territory, plus Related
Expenses.
8.4 Fee. Customer shall pay the annual Customer and Software Support Fee for so
long as Customer continues to hold or use the Licensed Products
9 WARRANTIES
9.1 Warranty. SNI warrants that, for a period of 90 days after delivery, the
original unmodified version of the Software shall conform in all material
respects with any program descriptions included in the Documentation. SNI does
not warrant that the Licensed Products will operate without interruption or be
error-free. SNI warrants that the Software will operate in accordance with this
Agreement on dates occurring on and after January 1, 2000, to the same extent
that it operates prior to such date and that the Software will be capable of
properly processing data having dates falling on and after January 1, 2000. In
the event Customer discovers any non-conformance by the Software with the above
warranty (a "defect"), Customer agrees to provide SNI notice of such defect, and
shall, upon SNI's request, provide such data and information regarding the
defect as SNI may require to recreate the defect. SNI agrees, as its exclusive
obligation for any breach of such warranty, to use its best reasonable efforts
to correct reported defects. SNI shall not be responsible for (i) unreported
defects, (ii) defects caused by misuse or abuse of the Software, (iii) defects
caused by use of the Software with hardware or software other than that approved
by SNI for use with the Software, or for (iv) Changes made other than by or with
the express written authority of SNI. Customer shall be limited to the
warranties provided by third-party licensors or manufacturers with respect to
third-party software or equipment that may be provided by SNI.
9.2 DISCLAIMER. EXCEPT AS PROVIDED IN SECTION 6.1 ABOVE, PHOENIX AND SNI
SPECIFICALLY DISCLAIM ANY OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
9.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL PHOENIX OR SNI BE LIABLE FOR ANY
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM
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THE USE, OR INABILITY TO USE, THE LICENSED PRODUCTS OR ARISING OUT OF ANY OTHER
CIRCUMSTANCES ASSOCIATED WITH THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION DAMAGES BASED ON LOSS OF PROFIT, LOSS OR INTERRUPTION OF DATA
OR COMPUTER TIME, ALTERATION OR ERRONEOUS TRANSMISSION OF DATA, EVEN IF PHOENIX
OR SNI IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. Phoenix's and
SNI's total liability to Customer under any provision of this Agreement (other
than indemnification under Section 10) or for any and all claims, losses or
damages relating to the Licensed Products (whether based on tort, contract, or
any other theory), other than claims based upon the gross negligence or willful
misconduct of Phoenix or SNI, shall be limited to the amount actually paid by
Customer to SNI for the Licensed Products giving rise to the liability. The
parties acknowledge that each of them relied upon the inclusion of this
limitation in consideration of entering into this Agreement.
10 PATENT AND COPYRIGHT INDEMNITY
10.1 Infringement Claims. If a third party claims that the Software infringes
any patent, copyright, trade secret, or similar intellectual property right of
any third party, and such claim would impair Customer's right to use the
Software hereunder, Phoenix shall (as long as Customer is not in default under
this Agreement or any other agreement with Phoenix) defend Customer against that
claim at Phoenix's expense and pay all damages awarded by a court in a final
judgment, provided that Customer (i) promptly notifies Phoenix in writing of any
such claim, (ii) allows Phoenix to control the defense and disposition of such
claim, including any related settlement negotiations, and (iii) cooperates with
Phoenix, at Phoenix's expense, in the defense of such claim.
10.2 Remedies. If such a claim is made or appears possible, Phoenix may, at its
option, either (i) secure for Customer the right to continue to use the
Software, (ii) modify or replace the Software so it is non-infringing, or (iii)
refund a pro-rata portion of the license fees paid for the infringing material
based on a five year straight line useful period. Phoenix has no obligation
hereunder for any claim based on a modified version of the Software which has
not been prepared solely by Phoenix, or for any combination, operation or use of
the Software with any hardware or software not approved in writing by Phoenix.
Phoenix also shall have no obligation hereunder for any claim based on theories
of law that are not substantially equivalent to laws, treaties and conventions
applicable to U.S. patents, copyrights, trade secrets, and similar intellectual
property rights. THIS SECTION 10 STATES PHOENIX'S ENTIRE OBLIGATION TO CUSTOMER
WITH RESPECT TO MATTERS OF TITLE OR ANY CLAIM OF INFRINGEMENT THEREOF.
11 CONFIDENTIALITY
11.1 Confidentiality. Each Party agrees at all times to maintain the complete
confidentiality of the Confidential Information of the other. Each Party shall
not permit or authorize access to, or disclosure of, the Confidential
Information of the other to any person or entity other than employees or
advisors who have a "need to know" such information in order to enable the
receiving party to exercise its rights or perform its obligations under this
Agreement. Neither party shall disclose or supply the Confidential Information
of the other to any non-employee third party without the prior written approval
of the other party, which approval shall not be unreasonably withheld, provided
the requesting party can demonstrate a need for such disclosure in order to
comply with its obligations hereunder. Either party may disclose portions of the
Confidential Information of the other to governmental regulatory authorities if
such disclosure is required by applicable laws, provided the party required to
make such disclosure notifies the other party of the applicable legal
requirements before such disclosure occurs and assists the other party to obtain
such protection as may be available to preserve the confidentiality of such
information.
11.2 Disposal. Prior to disposal of any media or materials that contain any part
of the Software, Documentation or other Confidential Information of Phoenix or
SNI, Customer shall obliterate or otherwise destroy all code, instructions,
commentary, or further evidence of Confidential Information, for example, by
erasing, incinerating, or shredding such materials.
12 ARBITRATION
In the event a claim, controversy or dispute between SNI or Phoenix and Customer
arises out of or in connection with this Agreement or the transactions and
business contemplated hereby, including the validity, construction or
enforcement thereof, either party may demand that such matter be submitted to
final and binding arbitration. The situs of all arbitration proceedings shall be
_______________, unless SNI and Customer agree in writing to another situs. All
arbitration proceedings and records shall be in English. Issuance of an
arbitration demand shall suspend the effect of any default entailed by such
claim, controversy or dispute and any judicial or administrative proceedings
instituted in connection therewith, for the duration of the arbitration
proceedings. Arbitration shall be governed by the commercial rules of the
American Arbitration Association (the "AAA"). Arbitration shall be conducted by
one arbitrator who shall be chosen by the AAA within 5 days of receipt of the
arbitration demand. The arbitrator or arbitrators shall determine whether a
default has occurred, and shall
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deliver its or their decision within 45 days of the date of receipt of the
arbitration demand, specifying such remedy (including money damages) as shall
(a) fully implement the intent and purposes of this Agreement and (b) indemnify
and hold harmless the non-breaching party from all losses, costs and expenses
(including costs of arbitration and reasonable attorneys' fees) resulting from
the default. Termination or limitation of Phoenix's rights in the Software, the
Documentation, or any associated intellectual property rights may not be awarded
under any circumstances. The right to demand arbitration and to receive damages
and obtain other available remedies as provided hereunder shall be the exclusive
remedy in the event an arbitration demand is made, except that Phoenix shall be
entitled to obtain equitable relief, such as injunctive relief, from any court
of competent jurisdiction in order to protect its rights in the Software, the
Documentation, or any associated intellectual property rights while such
proceeding is pending or in support of any award made pursuant to such
arbitration. Phoenix and Customer hereby consent to the enforcement in the
courts of each country in the Territory and the United States of any arbitral
judgment or award rendered pursuant to this Section.
13 COMPLIANCE WITH LAWS
13.1 Compliance with Laws. Customer shall, at its own expense, comply with all
laws relating to the licensing and use of the Licensed Products, and shall
procure all licenses and pay all fees and other charges required thereby.
13.2 Export Restrictions. Customer shall not ship or export the Licensed
Products outside of the Territory without the express written consent of SNI.
13.3 Corrupt Practices. Neither Customer nor any of its directors, officers,
employees, or agents will make, offer to make, or accept any payment or gift
directly or indirectly to any employee, officer, or representative of any
governmental entity or instrumentality or to any foreign political party, any
official of a foreign political party, or candidate, where such payment would
constitute a bribe, kickback, or illegal payment under U.S. or applicable
foreign laws.
14 GENERAL
14.1 Notice. Notices shall be deemed given as of four days following deposit
with FedEx, DHL, or other international courier service if properly addressed as
first set forth above, or to such other address as may be requested by written
notice in compliance with this Section.
14.2 Assignment. Customer may not assign, transfer, or delegate its rights or
obligations hereunder without SNI's prior written consent. Subject to the
foregoing, this Agreement shall inure to the benefit of and be binding upon the
parties hereto and their permitted successors and assigns. For purposes of this
Section, the acquisition of more than 50% of the voting stock of Customer, the
acquisition of all or substantially all the business and assets of Customer, or
the merger of Customer with or into another entity shall constitute an
unauthorized assignment, unless all other provisions of this Agreement are duly
honored, the surviving entity signs a new license agreement with SNI containing
terms and conditions reasonably acceptable to SNI, and the surviving entity pays
additional license fees for use of the Licensed Products for the new or
different number of Remote and Additional Branches and/or Acquired Financial
Institutions resulting out of the transaction.
14.3 Waiver. The failure of either party to enforce any term of this Agreement
shall not constitute a waiver of either party's right to enforce every term of
this Agreement.
14.4 Enforcement. If either party brings an action under this Agreement
(including appeal), the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs.
14.5 Should any provision of this Agreement be held by a court of competent
jurisdiction or arbitration authority to be unenforceable, the remaining
provisions of this Agreement shall not be affected or impaired thereby.
14.6 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE
LAWS OF THE UNITED STATES OF AMERICA AND THE STATE OF FLORIDA, EXCLUDING ITS
CONFLICT OF LAWS RULES. IT SHALL NOT BE GOVERNED BY THE UNITED NATIONS
CONVENTION ON THE INTERNATIONAL SALE OF GOODS, THE APPLICATION OF WHICH IS
EXPRESSLY EXCLUDED. WITH RESPECT TO ANY CLAIM OF EITHER PARTY WITH RESPECT TO
OWNERSHIP OF THE LICENSED PRODUCTS, OR THE PROTECTION OF INTELLECTUAL PROPERTY
OR CONFIDENTIAL INFORMATION OF PHOENIX, OR THE PAYMENT OF AMOUNTS DUE SNI
HEREUNDER, CUSTOMER HEREBY CONSENTS TO BE SUBJECT TO THE JURISDICTION OF THE
FEDERAL AND STATE COURTS OF THE STATE OF FLORIDA.
14.7 Force Majeure. Neither party shall be in default by reason of any failure
in the performance of this Agreement (other than a failure to make payment when
due or to comply with restrictions upon the Use of the Licensed Products) if
such failure arises out of any act, event or circumstance beyond the reasonable
control of such party, whether or not otherwise foreseeable. The party so
affected will resume performance as soon as reasonably possible.
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14.8 Headings and Captions. The headings and captions appearing in this
Agreement are inserted only as a matter of convenience and in no way limit the
scope or affect the meaning of any section.
14.9 Employees. Neither party shall hire or solicit for hire any employee of the
other without the express written consent of the other party.
14.10 Prior Agreements, Amendment. This Agreement constitutes the entire
agreement between the parties and supersedes all prior understandings and
agreements between them regarding the Licensed Products, and may not be modified
or amended except in writing signed by authorized representatives of both
parties.
14.11 Phoenix. Phoenix, as the owner of the Software, is intended to be, and is
by this reference, a third party beneficiary of this Agreement, including,
without limitation, the provisions regarding the protection of the Software and
of Phoenix's Confidential Information and intellectual property rights.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
as of the Effective Date.
SIEMENS NIXDORF INFORMATIONSYTEMEAG
-------------------------------- ------------------------------------
Signature Witness
-------------------------------- ------------------------------------
Name (print) Name (print)
-------------------------------- ------------------------------------
Title (print) Witness
(SEAL)
------------------------------------
CUSTOMER: Name (print)
-------------------------------- ------------------------------------
Signature Witness
-------------------------------- ------------------------------------
Name (print) Name (print)
-------------------------------- ------------------------------------
Title (print) Witness
------------------------------------
(SEAL) Name (print)
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EXHIBIT A
SOFTWARE
PHOENIX SOFTWARE:
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EXHIBIT B
FEES
1. INITIAL LICENSE FEES:
A. Initial Financial Institution (one Server) $
-------------
B. Remote Branch Fees
1-2 No Charge
3-5 $ each
--------
6-10 $ each
--------
11-25 $ each
--------
26-50 $ each
--------
51-100 $ each
--------
101 or more $ each
--------
TOTAL INITIAL LICENSE FEES: $
=============
2. ADDITIONAL LICENSE FEES:
A. Acquired Financial Institution Fee $ each
--------
B. Additional Branch Fee $ each
--------
3. INSTALLATION FEES $
-------------
4. ANNUAL CUSTOMER AND SOFTWARE SUPPORT FEES:
A. Initial Financial Institutions $ /year
--------
B. Remote Branches of Initial Financial Institution $ /year
--------
TOTAL INITIAL ANNUAL CUSTOMER AND SOFTWARE
SUPPORT FEES $
=============
5. PAYMENT TERMS
5.1 All License Fees shall be billable *** upon execution of this Agreement
and *** upon delivery of the Software. The License Fees are one-time
initial license fees for the delivery of the current version of the
Software, and are fully earned and non-refundable upon shipment of the
Software to Customer. All modifications and enhancements for the Software
requested by Customer shall be the subject of a separate agreement with
separate consideration and license fees to be paid therefore.
5.2 Customer shall notify SNI immediately in the event it wishes to install
the Software at any location not currently identified on Exhibit D, and
shall pay to SNI Additional Branch Fees or Acquired Financial Institution
Fees, as applicable, for such locations prior to their installation.
5.3 An initial one-time Installation Fee is due upon execution of this
Agreement for SNI's assistance with the Installation of the Software. SNI
shall be entitled to additional Implementation Fees, to be paid in advance,
if Implementation is required when Customer adds an Acquired Financial
Institution or other Additional Branches. Fees for implementation at
Additional Branches and Acquired Financial Institutions shall be at SNI's
then current rates for such services plus Related Expenses.
5.4 The Customer and Software Support Fee is due and billable for Customer
and Software Support on the Installation Date and on each annual
anniversary thereof for so long as the license for the Software is in
effect or Customer continues to use the Software.
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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EXHIBIT B
IMPLEMENTATION
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EXHIBIT C
NETWORK CONFIGURATIONS AND THIRD PARTY SOFTWARE
1. Network Requirements
Customer agrees to provide and maintain a network in accordance with the
standards set forth in the Phoenix Hardware and Network Services Guide,
as provided by Phoenix and amended from time to time.
2. UNIX Server Requirements
Customer agrees to provide and maintain a ___________________ server at
a size recommended by Phoenix, or greater.
3. Sybase Software Requirements
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EXHIBIT D
CUSTOMER CONTACT, DESIGNATED LOCATION AND REMOTE BRANCHES
CUSTOMER CONTACT:
DESIGNATED LOCATION:
REMOTE LOCATIONS:
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EXHIBIT E
TERRITORY
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EXHIBIT E
Maintenance and Support Agreement
(to be attached)
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EXHIBIT F
Trademarks and Trade Names
Phoenix
Phoenix International
The Phoenix International Logo
Phoenix Banking System
Phoenix International Banking System
The World is Banking on Phoenix
TradeWind
Priority Solutions
TradeCentre
TradeMark
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EXHIBIT G
IMPLEMENTATION METHODOLOGY TRAINING
OBJECTIVE: To train SNI on our Implementation Methodology.
PREREQUISITES We will send SNI our standard "welcome package."
They should thoroughly review the information and
be prepared to discuss and review this
information.
ACTION PLAN: SNI should send a project manager and a technical
person to Phoenix for training on our
implementation methodology. This training will
occur *** days prior to the SA training scheduled
for SNI and the bank. We will spend the *** days
reviewing the methodology and preparing them for
the SA training class.
ATTENDEES: Xxxxxxx xxxxx and SNI. The SNI project manager
should be a banker, or someone who has extensive
conversion and implementation experience; the
technician should have skills in *** and ***.
DURATION OF TRAINING: *** days. Recommend that this begin on a *** and
run through ***. The technician should plan to
stay *** to spend time with one of our conversion
programmers. The project manager will stay to
participate in the Implementation Planning Session
and Enhancement Review Session.
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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IMPLEMENTATION PLANNING SESSION/ENHANCEMENT REVIEW SESSION
OBJECTIVE: SNI and the bank will attend a
planning/enhancement review session in Orlando.
The session will take place immediately following
the review of our implementation methodology. The
objective is to conduct a gap analysis and
determine required functionality for the bank.
This is normally done prior to the signing of a
contract with the bank. We will provide the
results of the gap analysis to development so that
an estimate can be prepared. We will also review
our implementation methodology with the bank.
PREREQUISITES The bank must be familiar with the current data
processing system and the functionality required
to operate the bank. They must also be aware of
all regulatory requirements. The bank should bring
copies of current regulatory reports, product
definitions, and file layouts of the current
system's data files.
ACTION PLAN: SNI, the bank, and Phoenix personnel will devote
*** days to reviewing the bank's current
processing environment and reviewing the
implementation methodology. At the end of the ***
days, we will agree on any enhancements that may
be required. If it is necessary to extend the
length of this meeting, we will complete the
enhancement review following the SA training
class.
ATTENDEES: The SNI project manager, the bank's project
manager, "power users" form the bank who have
knowledge of the current loans, deposit, and GL
operations, and Phoenix personnel.
DURATION: *** days. Suggest this session begins immediately
following the Implementation Methodology training
(*** through ***).
NOTE: In our opinion, this session should be provided on
a *** with the cost being paid for by the bank.
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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SA TRAINING
OBJECTIVE: To train SNI and the bank on how to set up the SA.
When the training is complete, the bank will have
an SA that is virtually complete and SNI will have
the training materials and knowledge needed to
begin structuring a training program for use in
training other banks.
PREREQUISITES: Prior to arriving in Orlando, we will have a
conference call with SNI and the bank to explain
the required preparation for the SA class. We will
provide them with an SA profile to discuss the
decisions that need to be made prior to class so
they can establish the SA while they are here.
NOTE: All attendees must have Windows training prior to
attending any of the Phoenix training classes.
ACTION PLAN: Training will include GL, loans, deposits,
bank, RIM, and teller controls (assuming the bank
will be using our teller system). When the
training is complete, we will have an established
SA that the bank can load on their DBS when it is
installed. We will use the SA to begin the
conversion process.
ATTENDEES: The following SNI personnel should attend SA
training:
- the project manager
- the person responsible for implementing
loans
- the person responsible for implementing
deposits
- the person responsible for implementing
the GL chart of accounts and financial
control
- the training manager
The following bank personnel should attend SA
training:
- the project manager
- the person responsible for establishing
and maintaining the general ledger and
analyzing financial data
- the person responsible for establishing
and maintaining deposit products and
deposit processing controls
- the person responsible for establishing
and maintaining loan products and loan
processing controls
- the training manager
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These people will need to be in Orlando
for training on the days when the
material being presented is applicable
to their area of expertise. For example:
the GL people must be present when
setting up the Chart of Accounts, the
Statement of Income, etc. They will not
need to be present for loans or deposits
set up. However, depending on the size
of the bank's GL, the GL person may need
to be in Orlando for as long as a week
in order to complete the GL set up.
Normally, the project manager and the
training manager attend all classes.
DURATION: SNI and the bank will receive
approximately *** of SA training. The
normal schedule is shown below.
SA CLASS SCHEDULE (ORLANDO)
---------------- ------------ ----------- -------------- ---------------
***
---------------- ------------ ----------- -------------- ---------------
Bank / RIM Financial Financial Financial
Controls Controls Controls Controls Teller Controls
---------------- ------------ ----------- -------------- ---------------
***
---------------- ------------ ----------- -------------- ---------------
Deposit Deposit
RIM Controls Controls Controls Loan Controls Loan Controls
---------------- ------------ ----------- -------------- ---------------
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
32
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DATA MAPPING TRAINING
OBJECTIVE: To train SNI on how to complete data mapping for
conversion of the bank's data to Phoenix. When the
training is complete, SNI will have experience
with data mapping and will be able to do the next
conversion with limited assistance from Phoenix.
PREREQUISITES: Prior experience in mapping and data conversion,
as well as a thorough understanding of Rapid SQL
and FoxPro. Must have strong banking background.
ACTION PLAN: The purpose of this training is to provide SNI
with data mapping experience required to convert
the bank's data to the Phoenix system. In
addition to mapping, these conversion
coordinators will be taught how to perform data
audits and submit changes to the conversion
programmers.
ATTENDEES: The following SNI personnel must be available for
this training:
- the project manager
- the person responsible for mapping loans
- the person responsible for mapping deposits
- the person responsible for mapping and
balancing the General Ledger
DURATION: Approximately *** weeks during the ***, then
another *** weeks during the ***.
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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CONVERSION PROGRAMMING TRAINING
OBJECTIVE: To train SNI on how to write conversion programs
and scripts for conversion of the bank's data to
Phoenix. When the training is complete, SNI will
have experience in conversion programming and
testing. They should be able to do the ***
conversion with limited assistance from Phoenix.
PREREQUISITES: The SNI programmers must have at least *** years
of prior programming experience in *** and ***.
ACTION PLAN: SNI conversion programmers will write and test
conversion code under the supervision of Phoenix
conversion programmers. In addition, the
programmers will learn how to run the front-end
and back-end conversion programs, how to load the
converted data into the Phoenix database, and how
to manage change control resulting from data
audits. They will also be trained on how to write
and apply conversion and scripts to be used at
live conversion.
ATTENDEES: The following SNI personnel must be available for
this training:
- ***, or preferably ***, SNI programmers
DURATION: Approximately *** weeks during the *** to ***,
then another *** weeks during the ***; then
another *** weeks during the ***. If they
send *** people, this may be shortened.
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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MOCK CONVERSION TRAINING
OBJECTIVE: To train SNI on how to conduct a mock conversion.
They should be able to do the *** conversion with
support from Phoenix.
PREREQUISITES: The SNI conversion team should have previous
experience with conversions and must have
completed the data mapping (for conversion
coordinators) and programming (for conversion
programmers) training.
ACTION PLAN: Phoenix will conduct a mock conversion in Orlando
to simulate a live conversion at the bank. We will
test as many externals as possible and will
develop a schedule that covers all of the major
tasks that must be accomplished at conversion.
After the mock conversion is finished in Orlando,
the SNI implementation team will travel to the
bank and conduct an on-site mock conversion with
telephone support from Orlando.
ATTENDEES: The entire SNI implementation team should be in
Orlando for this training.
DURATION: Approximately *** to *** days.
NOTE: Depending on the results of the mock conversion,
it may be necessary for the SNI conversion team to
remain in Orlando between the mock and live
conversion. This will be true if major problems
are identified or if interface testing is not
completed during the mock conversion.
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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LIVE CONVERSION TRAINING
OBJECTIVE: To train SNI on how to conduct a live conversion.
They should be able to do the second conversion
with support from Phoenix.
PREREQUISITES: The SNI conversion team should have previous
experience with conversions and must have
completed the data mapping (for conversion
coordinators) and programming (for conversion
programmers) training as well as the mock
conversion training.
ACTION PLAN: Phoenix will develop a detailed schedule for the
live conversion based on the results of the mock
conversion. The SNI conversion team will be
instructed on any final details that may need to
be covered between the mock and the live
conversions. An additional simulated conversion
can be run in Orlando, if deemed necessary.
At live conversion, the SNI implementation team
will travel to the bank and conduct the live
conversion with telephone support from Orlando.
ATTENDEES: If an additional simulated conversion is
necessary, the entire SNI implementation team
should be in Orlando for this training.
DURATION: Approximately *** - *** days.
CONCLUSION:
Our experience has been that personnel must be actively involved in the
implementation in order to learn the process. Watching someone map or watching
someone code is not "hands on" enough to facilitate the exchange of knowledge.
Basically, the people from SNI should plan on sending an implementation team to
Orlando beginning with the data mapping and continuing through the live
conversion. Of course, this does not have to be uninterrupted time, but should
be in segments that are long enough for them to get the work done. We will
provide the training and guide them through the process, but it will be much
more beneficial if they do the actual mapping, coding and converting while
drawing upon our expertise.
The timeline for the actual conversion will be established following the
implementation planning meeting and the enhancement review session.
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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SOFTWARE INSTALLATION TRAINING
OBJECTIVE: To train SNI on how to install hardware and
software at bank site.
PREREQUISITES: Expert-level knowledge of how to configure and
administer Windows NT networks (requires MCSE
certification) and Novell Netware 2.x and 4.x
networks (requires CNE certification).
Expert-level knowledge of Windows 95 and Window NT
Workstation. Working knowledge of Sybase DBMS and
Gupta SQLBase. Basic knowledge of other critical
local and wide area network equipment including
routers, bridge, DSU's, hubs and Ethernet
switches.
ACTION PLAN: Phoenix will provide training to complete:
- Custom configurations Phoenix requires
on database servers at both the
hardware, operating system, and DBMS
layers.
- Customizations that have to be made to
the configurations of all network file
servers.
- Customizations that have to be made to
the configuration of all workstations.
- Scripts and other software processes
that have to be used to finalize
different phases of an installation.
- Many standards and conventions in the
areas of addressing (IP, IPX) and naming
(e.g., domain naming, server resource
identifiers) that absolutely must be
adhered to in order to support remote
dial-in support.
ATTENDEES: Maximum of *** SNI Systems/Telecommunications
trained professionals.
DURATION: *** weeks of tutorial plus on-the-task training.
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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TECHNICAL TRAINING
OBJECTIVE: To train SNI on systems architecture, computer
room operations and level 1 support functions.
PREREQUISITES: This team from SNI should be comprised of
professionals who have experience in computer room
functions and customer support / help desk
activities. Background in retail bank operations
and client/server systems a plus.
------------------------------------- ------------------------------------ ----------------------------------
ACTIVITY DURATION MAXIMUM ATTENDEES
------------------------------------- ------------------------------------ ----------------------------------
I System Architecture *** ***
- Technical Overview
- Client processes and central
server processes
- On-Line and off-line
functions
- Overnight processing
- Interfaces
------------------------------------- ------------------------------------ ----------------------------------
------------------------------------- ------------------------------------ ----------------------------------
II 1st Level Support Training *** ***
------------------------------------- ------------------------------------ ----------------------------------
------------------------------------- ------------------------------------ ----------------------------------
III Managing the system *** ***
(UNIX)
------------------------------------- ------------------------------------ ----------------------------------
------------------------------------- ------------------------------------ ----------------------------------
IV Reporting - Crystal Reports *** ***
------------------------------------- ------------------------------------ ----------------------------------
------------------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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Exhibit H
Escrow Agreement
(to be attached)
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