RESELLER SOFTWARE LICENSE AND SUPPORT AGREEMENT
RESELLER
This Reseller Software License and
Support Agreement (“Agreement”) is made
and entered into as of April 25, 2009 (the “Effective Date”) by
and between Rurbanc Data Services, Inc., an Ohio Corporation having a mailing
address of 0000 Xxxxx Xxxxx 00X, Xxxxxxxx, Xxxx 00000 (“RDSI”), and New Core
Holdings, Inc., a Florida corporation having a mailing address of 000 Xxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxxxx 00000 (“NCHI”) (each a “Party” and
collectively the “Parties”).
WHEREAS, NCHI is in the
business of developing, marketing and selling core software programs and
products related to the financial industry, including the software called Single
Source described in Schedule A, attached hereto (“Software”);
and
WHEREAS, NCHI has developed
the Software to operate in single and multiple customer environments, as
described herein; and
WHEREAS, NCHI has developed
and established additional product offerings related to the Software and may
develop more product offerings in the future; and
WHEREAS, RDSI is a banking
data and item processing service provider which owns computer hardware,
networking equipment and owns or licenses associated system software;
and
WHEREAS, NCHI and RDSI wish to
enter into an agreement pursuant to which NCHI shall license to RDSI the right
to sub-license and install or host and run the Software and additional products
for the purposes of servicing Customers; and
WHEREAS, NCHI owns and/or has
the right to grant the rights and licenses to RDSI described herein for the use,
resale and sub-licensing of the Software and the Additional
Products;
WHEREAS, NCHI and RDSI are
contemplating a business structure that is intended to ultimately combine the
two companies.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Parties, NCHI and RDSI hereby agree as follows:
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5
General
Liability
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$5
million per occurrence
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Errors
and Omissions Liability
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$5
million per occurrence
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Automobile
Liability
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$2
million per occurrence
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Workers'
Compensation
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Statutory
coverage
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8.1.1.
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In
the event of any claims or allegations regarding NCHI’s breach of its
confidentiality obligations, then NCHI shall, at its expense, indemnify,
defend, and hold RDSI harmless from and against any loss, cost, damage,
liability or expense (including attorneys’ fees) arising out of or related
to the same; provided that the foregoing indemnification is predicated
upon (a) RDSI notifying NCHI of such claim or action, (b) NCHI having the
sole and exclusive authority to defend and/or settle any such claim or
action (provided that RDSI may participate in any such defense at its
expense) and (c) RDSI reasonably cooperating with NCHI in connection
therewith.
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8.1.2.
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NCHI
will, at its own expense, defend any claims or suit that may be asserted
or instituted by Person against RDSI or Customers for alleged
misappropriation of Trade Secrets or infringement of any patent or
copyright enforceable in the United States relating to the Software, if
such alleged misappropriation or infringement is based on the use of the
Software in RDSI’s or Customers’ business. NCHI will pay all
such expenses (including but not limited to reasonable attorney’s fees),
together with damages and costs awarded by the court which finally
determines the case, or are incurred in the settlement thereof, provided
RDSI or Customers: (i) shall have made all payment then due NCHI
hereunder; (ii) gives prompt written notice to NCHI after RDSI becomes aware of such
claim (provided that the failure to so notify shall not affect RDSI’s
rights to indemnification hereunder unless, and then only to the extent
that, NCHI has been actually prejudiced thereby); (iii) gives NCHI
sole control of the defense and settlement of the claim (provided that the
NCHI may not agree to any settlement that involves injunctive or equitable
relief affecting the RDSI or Customer or admission of liability by RDSI or
Customer without obtaining the RDSI’s and Customer’s prior written
consent); (iv) provides to NCHI, at NCHI’s expense, all
available information and assistance; and (v) has not compromised or
settled such claim without NCHI’s
consent.
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8.1.3.
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If
the Software is found in and of itself to misappropriate a Trade Secret or
infringe any copyright or patent enforceable in the United States, NCHI
will: (a) pay any final award or damages in such suit or are incurred in
the settlement thereof which are attributable to such
misappropriation or infringement, and (b) if in such suit the use of the
Software by RDSI or Customers is permanently enjoined by reason of such
misappropriation or infringement, NCHI shall, at its own expertise and at
its sole option, either (i) procure for RDSI or Customers the right to
continue using the Software, (ii) modify the Software to render it
non-infringing, or (iii) replace the Software with non-infringing
software.
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8.1.4.
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NCHI
has no obligation under this Section 8.1 for any claim which results from:
(i) use of the Software in combination with any non-NCHI-provided
software; (ii) any modification of the Software other than at NCHI’s
direction; or (iii) use of an allegedly infringing version of the
Software, if the alleged infringement could be avoided by the use of a
different version made available to RDSI or
Customers.
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UNDER NO
CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE
DAMAGES, OR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST
PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE, BASED ON BREACH OF
WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING OUT OF OR RELATED TO
THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY PROVIDED HEREIN. Notwithstanding the foregoing, the
limitations of liability under this Section 9 shall not apply in the following
circumstances: intentional torts or breaches of a Party’s confidentiality
obligations hereunder.
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If
to NCHI:
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If
to RDSI:
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New
Core Holdings, Inc.
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Rurbanc
Data Systems, Inc.
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000
Xxxxxxxxx Xxxxx
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0000
Xxxxx Xxxxx 00 X
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Xxxxxx,
Xxxxxxxxxxxx 00000
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Defiance,
Ohio 43512
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Fax:
(000) 000-0000
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Fax:
(000) 000-0000
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Attention:
Xxxx Xxxxxxxxx, President
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Attention:
Xxxxxxx X. Xxxxx, Chief Executive
Officer
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14.8. Governing Law,
Venue. This Agreement will be governed by and interpreted in
accordance with the laws of the State of Ohio, excluding its conflict of law
principles. The Parties hereby consent and agree that jurisdiction
and venue for any claim or cause of action arising under or related to this
Agreement shall be properly and exclusively in the state or federal courts
located in Franklin County, Ohio. NCHI and RDSI hereby elect to
exclude the United Nations Convention on Contracts for the International Sale of
Goods from application to this Agreement and any transaction between them that
may be implemented in connection with this Agreement.
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IN WITNESS WHEREOF, NCHI and
RDSI cause this Reseller Software License and Support Agreement to be executed
as of the Effective date by their duly authorized representatives identified
below.
Rurbanc
Data Services, Inc.
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(“NCHI”)
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(“RDSI”)
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By:
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/s/
Xxxx X. Xxxxxxxxx
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By:
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/s/
Xxxxxxx X. Xxxxx
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Name:
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Xxxx
X. Xxxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxx
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Title:
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President
and CEO
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Title:
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Chairman
and
CEO
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Signature
Page to Reseller Software License and Support Agreement
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SCHEDULE
A
DESCRIPTION
OF NCHI SINGLE SOURCE SOFTWARE
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SCHEDULE
B
SOFTWARE
SUPPORT
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SCHEDULE
C
CUSTOMER
LICENSE AND SUBSCRIPTION FEES
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