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Exhibit 10.17
BANK INFORMATION PROCESSING
SYSTEM AGREEMENT
BY AND BETWEEN
OPEN SOLUTIONS INC.
AND
[________________________]
AGREEMENT [____]
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BANK INFORMATION PROCESSING SYSTEM AGREEMENT
1. PARTIES
This BANK INFORMATION PROCESSING SYSTEM AGREEMENT (the "Agreement") is made by
and between Open Solutions, Inc., a Delaware corporation (OSI), and
[___________________________________] (the "Licensee"), as of the date of the
last signature below (the "Effective Date").
2. COMPONENTS
This Agreement incorporates the following attachments with the same Agreement
Number as specified below, each individually, an "Attachment" and collectively,
the "Attachments":
a) Initial Product Order,
b) End-User Software License,
c) Support Services Terms and Conditions,
d) Maintenance and Support Services Fee Schedule, which shall be
updated from time to time,
e) Implementation Terms and Conditions,
f) Training Schedule,
g) Escrow Terms and Conditions,
h) Conversion Acceptance.
This Agreement may also incorporate Additional Product Orders and Service Orders
with the same Agreement Number as specified below, provided that:
a) OSI has provided the Additional Product Order or Service Order
form to Licensee,
b) OSI and the Licensee both execute such Additional Product Order
or Service Order, and
c) attachments to an Additional Product Order apply only to that
Additional Product Order and attachments to a Service Order only
apply to that Service Order. Such attachments shall have no force
or effect on any other purchase order, confirmation or similar
form, whether pre-existing or subsequently entered into, even if
signed by the parties after the date hereof.
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3. DEFINITIONS
For purposes of the Agreement, capitalized terms wherever defined and used shall
have the same meaning throughout the Agreement, unless otherwise specifically
limited in an Attachment.
4. ENTIRETY OF AGREEMENT
Each party's acceptance of this Agreement (as indicated by execution hereof) was
and is limited to and expressly conditional upon the other's acceptance of the
terms contained in the Agreement to the exclusion of all other terms.
Accordingly, both parties agree that this Agreement is the complete and
exclusive statement of the mutual understanding of the parties and supersedes
and cancels all previous written and oral agreements and communications relating
to the subject matter of this Agreement.
5. CONVEYANCE AND SERVICES
Subject to all of the terms and conditions of this Agreement, OSI will provide
Licensee with the following:
a) OSI's Licensed Software as indicated on the Initial Product
Order,
b) a limited license to use the Licensed Software, subject to the
limitations, restrictions and other terms and conditions set
forth in the END-USER SOFTWARE LICENSE.
c) the initial review, on-site survey and software installation, as
set forth in the IMPLEMENTATION TERMS AND CONDITIONS, and
training services as set forth in the TRAINING SCHEDULE, subject
to the terms and conditions therein.
d) the maintenance and support services set forth in the SUPPORT
SERVICES TERMS AND CONDITIONS on the terms and conditions set
forth therein and subject to the MAINTENANCE AND SUPPORT FEE
SERVICES SCHEDULE.
e) a full and current version and previous version of the
Proprietary Software in escrow, pursuant to the ESCROW TERMS AND
CONDITIONS.
6. PRICING OPTIONS
In addition to the Initial License Fee indicated in the Initial Product Order,
Licensee shall be permitted to exercise the following special pricing option,
subject to the conditions herein provided.
a) The Licensee executes this Agreement prior to [_______________]
and
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If Licensee meets the aforementioned conditions, then Licensee shall:
a) pay as an Initial License Fee the discounted Fee of [ ] for
the Base System and
b) receive [ ] discount from OSI list price on any new
optional module of OSI Proprietary Software ordered during a
period of [ ] following Conversion.
7. TERM
Subject to termination by OSI or Licensee as herein provided the initial term of
the License with respect to the OSI Licensed Documentation and Licensed Software
hereunder shall be five (5) years. The License shall be automatically renewed,
after five (5) years and every subsequent five (5) years, without payment by the
Licensee if the Licensee has not grown in Asset Size or Number of Accounts
beyond the next level as listed in the "License Fee Schedule ." If the Licensee
has grown to the next level or beyond they will pay to OSI the differential
between their original list price and the next level or levels of the then
current "License Fee Schedule" or the present "License Fee Schedule," whichever
is lower.
8. TERMINATION
Licensee may terminate this License by giving OSI a sixty (60) day prior written
notice of termination. OSI, or Licensee, may terminate the License as provided
in the "End User Software License" the "Implementation Terms & Conditions", and
the "Support Services Terms & Conditions". However, except for the License and
except as otherwise expressly provided herein, the terms, conditions and
obligations of this Agreement shall survive Termination. Termination shall not
be an exclusive remedy and all other remedies shall be available whether or not
the License or the Agreement is terminated.
9. STATE LAWS
This Agreement shall be deemed to have been made in, and be construed pursuant
to the laws of the State of Connecticut and the United States without regard to
conflicts of laws provisions thereof.
10. WARRANTIES AND REPRESENTATIONS
THE AGREEMENT CONTAINS, AMONG OTHER THINGS, WARRANTY DISCLAIMERS, LIABILITY
LIMITATIONS AND USE LIMITATIONS.
Each individual signing this on behalf of an identified party below represents
that he or she has the authority and power to execute the Agreement on behalf
of the party so identified.
11. AMENDMENTS
This Agreement may only be changed or modified by a written agreement duly
signed by authorized representatives of both parties. Any waiver of any
provision of this Agreement shall be effective only if made in writing and
signed by a duly authorized representative of the waiving party.
12. ACCEPTANCE
By executing below through their duly authorized representatives, the parties
accept and enter into this Agreement and agree to be bound by its terms and
conditions. The undersigned individuals represent that each is duly authorized
to execute this Agreement on behalf of the respective organization.
Licensee:
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Signature: Date:
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Name: Title:
---------------------------------------------------- --------------
Address:
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City: State: Zip:
------------------------------- -------------- ----------------
Licensor: Open Solutions Inc.
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Signature: Date:
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Name: Title:
---------------------------------------------------- --------------
City: Glastonbury State: CT Zip: 06033
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INITIAL PRODUCT ORDER
OSI PROPRIETARY SOFTWARE - BASE SYSTEM
--------------------------------------------------------------------------------------------------------------------
UNIT
DESCRIPTION QTY PRICE TOTAL
--------------------------------------------------------------------------------------------------------------------
The Complete Banking Solution
CUSTOMER SERVICE REPRESENTATIVE
TELLER
LOAN CUSTOMER SERVICE REPRESENTATIVE
LOAN MONETARY
GL MANAGER
BRANCH OPERATIONS
BANK OPERATIONS
SYSTEM OPERATIONS
EXTERNAL MANAGER
PRODUCT MANAGER
BATCH SERVER
EXECUTIVE INFORMATION SYSTEM
MARKETING CIF
IRS/YEAR-END REPORTING MANAGER
AUTOMATED FORMS MODULE
FEDERAL AND STATE REGULATORY COMPLIANCE
DISASTER RECOVERY PLANNING
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TOTAL
DISCOUNT
NET
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For payment terms see the END USER SOFTWARE LICENSE section 4.1 Initial License
Fees
For pricing terms see the BANK INFORMATION PROCESSING SYSTEM AGREEMENT section
6 Pricing Options
OSI/ALLIANCE PARTNERS PROPRIETARY SOFTWARE - OPTIONAL MODULES
---------------------------------------------------------------------------------------------------------------------
UNIT
DESCRIPTION QTY PRICE TOTAL
---------------------------------------------------------------------------------------------------------------------
SECONDARY MARKET MANAGEMENT
COLLECTION MANAGEMENT SYSTEM
OSI ATM HANDLER TO INCL. ONE INTERFACE PC
DOCUMENT IMAGING
FTI ACCOUNTING SYSTEMS (LISTED BELOW)
THIRD PARTY INTERFACES:
IPS G/L interface
Voice Response interface
ATM Management System interface
ATM PBF (Positive Balance File) interface
Greatland Corp. Loan Origination Station interface
Fed Wire & ACH
Xxxxxxx AEO--Create Outgoing file for check orders
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Total
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Scheduled delivery dates are subject to change.
*Pricing of the Collection System is per workstation
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THIRD PARTY SOFTWARE LICENSED FROM THIRD PARTY
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UNIT
DESCRIPTION VENDOR VERSION QTY PRICE TOTAL
--------------------------------------------------------------------------------------------------------------------------
DATA PROCESSING SOFTWARE
NT Server Microsoft 3.51 4
Data Replication Software Octopus 2
SQR Development System MITI 2.5 1
Tape Backup NT (Administrative Server) Arcada 034098TD 1
SQL Server (Network Server) Microsoft 4.21 1
System Management Server (Network Server) Microsoft 1 1
Powerchute (All Servers) APC NT 4
Anti-Virus Software InocLan Cheyene 150060TD 1
BRANCH OPERATIONS SOFTWARE
Nt Server Microsoft 3.5 2
Powerchute S/W (All Servers) 2
DOS Microsoft MS-DOS 6.22 16
MS Windows for Workgroups Microsoft 3.11 16
MS Office Microsoft 4 0
Windows NT Client License (20 User) Microsoft 0 1
System Management Server (Network Server) Microsoft 1 1
SMS Client License (20 User) Microsoft 1 1
Microsoft Office 20 User Client License Microsoft 0 0
Tape Backup NT (Br. Admin. Servers) Arcada Backup Exec. 1
Anti-Virus Software InocuLan (Br. File Servers) Cheyene 2.5 1
SQR Report Generator MITI 2.5.7 1
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Software configuration is based on a pre-sales marketing survey and is subject
to change following an on-site survey.
THIRD PARTY SOFTWARE LICENSED FROM OSI
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UNIT
DESCRIPTION VENDOR MODEL QTY PRICE TOTAL
----------------------------------------------------------------------------------------------------------------------------
Oracle RDBMS NT (7 Concurrent Users) Oracle 7
Forest & Trees Platinum EIS Rept
Data Replication Software Octopus 0
SQR Development System MITI 2.5
DWA Ptr. Manager DWA
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TOTAL
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Third Party Software pricing is subject to change via the respective vendors
pricing policies.
LICENSEE'S DESIGNATED COMPUTER HARDWARE
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DESCRIPTION UNIT
VENDOR MODEL QTY PRICE TOTAL
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DATA PROCESSING HARDWARE
DB Server Pent. Pro/200, (1) Proc., 256MB RAM, (4) Unisys AQUANTA 1
2GB Drives plus Raid 5 & hot swap drives, CD ROM,
dual power supplies & fans, DAT Backup, expandable to 4 proc.
DB Remote Site Backup Server, Pent. Pro/200, 190MB UNISYS AQUANTA 1
RAM, (4) 2GB DR., CD ROM, DAT Backup
----------------------------------------------------------------
WS Pentium Pro/200, 256K Cache, 40M RAM, 1GB SCSI UNISYS AQUANTA 1
DR., NIC PCI, EVGA Color, 4GB DAT,
CD ROM, System Admin. & Batch Workstation
----------------------------------------------------------------
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WS Pentium/100, 256K Cache, 72M RAM, 1GB Unisys AQUANTA 1
SCSI DR., NIC PCI, EVGA Color, CD ROM
----------------------------------------------------------------
Primary Network Management Server
UPS Unisys UP 909 1
UPS Unisys UP 970 3
Optical Storage/Retr. Worm Drive (From Microsoft) Panasonic 212209936 1
High Output Ptr. 16PPM Unisys AP9516 1
----------------------------------------------------------------
BRANCH OPERATIONS HARDWARE
Br. File Server Pent./100, 40m RAM, CD ROM, Unisys AQUANTA 0
NIC PCI, EVGA COLOR, (2) 2.1GB Dr.
UPGRADE TO CURRENT BR. FILE SERVER Azatar MISC. 0
XXXX Xx., XXXX XXX, 00" SVGA Monitor,
Branch Admin. & NTWK Management
WS Pent./100, 256K CACHE, 40M RAM, 1GB SCSI Unisys AQUANTA 1
DR., 4GB DAT, NIC PCI, EVGA Color, Branch
Admin. Workstation & Secondary Network Manager.
DWA PTR. SVR., PENT./75, 256K CACHE, 16M RAM, Unisys AQUANTA 0
1GB IDE DR., NIC PCI, EVGA COLOR
UPS Unisys UP 970 1
Remote Access Modem 28.8KBPS AT&T V.34 1
Equipment Racks 1
CSU DSU Includes Cable (56KB to Seneca Falls) Codex 3512 2
Router (56KB to Seneca Falls) Cisco 2501 2
Intelligent Ethernet Hub Baystack 24 PORT 0
Expansion Hub Baystack EXP 24 PORT 0
WS Pent./75, 256K Cache, 16M RAM, 1GB Unisys***** AQUANTA 0
IDE DR., NIC PCI, EVGA Color, User Workstations
OR UPGRADE OLD PC'S to Pentium 75 MHZ/16MB)
UPS (OPTIONAL) Unisys UP 970 0
Flatbed B&W Scanner HP 4P 1
Passbook Ptr. Unisys EF 4600 0
Validation & Receipt Ptr. Unisys EF 4272 0
MICR PTR., 12PPM, 5 Drawers, Network Card SourceTech 4049-12R 1
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Hardware configuration is based on a pre-sales marketing survey and is subject
to change following an on-site survey.
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THIRD PARTY SOFTWARE LICENSE FEES FOR SOFTWARE LICENSED FROM OSI
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DESCRIPTION VENDOR ANNUAL MAINTENANCE
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RDBMS Oracle
Forest & Trees Platinum
SQR Development System MITI
Data Replication Software Octopus
DWA Ptr. Manager DWA
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Maintenance rates are based on third party vendors present pricing and subject
to change.
LICENSEE ASSET SIZE/NUMBER OF ACCOUNTS
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ASSET SIZE
NUMBER OF ACCOUNTS
DDA
Other Deposits
Loans
-------------------------------------------------------------------------------
PRICING FOR SERVICES
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DESCRIPTION PRICE
-------------------------------------------------------------------------------------------------
Implementation Service Fee for Licensed Software and contracted interfaces
Additional Services per diem
Annual License Fee is 15% of current software list price
--------------------------------------------------------------------------------
Annual License Fee commences ninety (90) days following conversion to production
use.
SCHEDULED LIVE PRODUCTION DATE: _________________________________ 9-June-9
Tax Location: Sales Rep:
Xxxx to: Ship to:
SAME
-------------------------------------------- ------------------
SAME
-------------------------------------------- ------------------
SAME
-------------------------------------------- ------------------
Phone: Phone: ( )_____________SAME
Billing contact: SVP _____ Phone: ( )_____________SAME
Technical Support Contact: __________________ SAME
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LICENSE FEE SCHEDULE
OSI shall provide Licensee with Support Services for the Licensed Software on
the terms and conditions set forth in the Support Services Terms and Conditions.
Annual support services fees (the Annual License Fee) for such services shall be
calculated on the basis of the Licensee's then current asset and account size,
the then current price schedule for The Complete Banking Solution and the then
current Annual License Fee Rate.
THE COMPLETE BANKING SOLUTION 1996 PRICING SCHEDULE
(Prices based on the higher of assets or accounts)
ASSET SIZE OR NUMBER OF ACCOUNTS COST OF SYSTEM
[ ] [ ]
ANNUAL LICENSE FEE RATE
For purposes of determining the Licensee's annual support service fees, OSI's
pricing schedule for The Complete Banking Solution and the Annual License Fee
Rate are subject to change as provided in this Agreement.
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END USER SOFTWARE LICENSE
This End User Software License (the "License") is part of the Agreement
identified by the Agreement Number specified below. Such Agreement includes the
Initial Product Order and any other Additional Product Order(s) that reference
the same Agreement Number (collectively "Product Order(s)"). Capitalized terms
not defined herein have the same meaning as defined elsewhere in the Agreement.
1. GRANT OF LICENSE
1.1 SOFTWARE
"Software" means collectively, the version(s) of OSI's Proprietary
Software, and Third Party Software ordered through OSI, as set forth
in the Product Orders, in object code format or database code format,
together with the Documentation (as hereinafter defined) provided to
Licensee by OSI, including updates, modifications or new releases of
such software programs and documentation that may be provided by OSI
to the Licensee from time to time. "OSI's Proprietary Software" means,
collectively, the version(s) of software owned by OSI and OSI's
Database Model. "OSI's Database Model means the version(s) of the
model owned and developed by OSI and incorporated into OSI's
Proprietary Software. "Third Party Software" means, collectively, the
version(s) of:
a) Software owned by third parties and integrated by OSI into OSI's
Proprietary Software and provided and sub-licensed to Licensee by
OSI ("Third Party Software Licensed from OSI"), and
b) Software owned by third parties under which, or with which, OSI's
Proprietary Software operates and which is provided and licensed
to Licensee by third party providers ("Third Party Software
Licensed from Third Party").
"Licensed Software" means, collectively, the versions of OSI's
Proprietary Software and Third Party Software Licensed from OSI being
licensed under this Agreement to Licensee by OSI.
1.2 DOCUMENTATION
"Documentation" means all technical materials and documents, whether
in hard copy or magnetic media or machine readable form, regarding the
capabilities, operation, installation and use of the Licensed
Software.
1.3 SPECIFICATIONS
"Specifications" means the specifications set forth in:
a) the Documentation,
b) the Agreement,
c) the Report (as defined in the Implementation Terms and
Conditions)
and
c) all other functional and technical specifications applicable
to the Licensed Software.
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In the event of a conflict or ambiguity among any of the
documents constituting the Specifications, such conflict
shall be resolved first in favor of this Agreement, secondly
in favor of the Report, thirdly in favor of the
Documentation and lastly in favor of the other functional,
technical and design specifications, which have been
provided to Licensee, and are applicable to the Licensed
Software.
1.4 DESIGNATED COMPUTER HARDWARE
Designated Computer Hardware means the computer and network
equipment listed on the Initial Product Order which OSI
states is compatible, and such other computer and network
equipment which OSI agrees is compatible with the Licensed
Software.
1.5 LICENSE
Subject to the terms and conditions set forth in this
Agreement, OSI grants Licensee and only Licensee, a
restricted right (the "License") to use the Licensed
Software for its own internal banking operations and
operations of Licensee's subsidiaries during the Term of
this Agreement. This right does not apply to acquired
institutions without payment of incremental License Fees per
the then current "Support Services Fee Schedule."
2. OWNERSHIP OF SOFTWARE
As between the parties, OSI retains title to and ownership of and all
proprietary rights with respect to the Licensed Software and all copies and
portions thereof, whether or not incorporated into or with other software. The
License does not constitute a sale of the Licensed Software or any portion or
copy of it.
3. RESTRICTIONS TO LICENSE
The License is a non-sub-licensable, non-exclusive, non-transferable,
non-assignable right to use the Proprietary Software during the Term of this
Agreement for Licensee's and subsidiaries of Licensee's own internal operations,
and is subject to the further restrictions and limitations provided in this
Agreement. The License also is a non-sub-licensable, non-exclusive,
non-transferable, non-assignable right to use the Third Party Software licensed
from OSI during the Term of this Agreement for Licensee's and Licensee's
subsidiaries own internal operations (to exclude mergers and acquisitions of
Independent Financial Institutions) and is subject to the further restrictions
and limitations provided in this Agreement and OSI's master licensing agreements
with such third parties. Except as otherwise provided in the Escrow Terms and
Conditions, Licensee has no right to receive, use or examine any Source Code (as
defined in the Escrow Terms and Conditions) or design documentation relating to
the Licensed Software. Licensee shall have the right to make such copies of the
Licensed Software and Documentation as are reasonably necessary for Licensee's
use of the Licensed Software and Documentation as contemplated hereunder and for
back up and archival purposes. In exercising this right, Licensee shall
reproduce and include the copyright notice and any other notices that appear on
the original Licensed Software and Documentation on any copies and any media
therefor. Licensee shall not, and shall not allow any third party, to, without
OSI's prior written consent:
a) decompile, disassemble, or otherwise reverse engineer or attempt to
reconstruct or discover any source code, algorithms or underlying
ideas,
b) remove any product identification, copyright or other notices,
c) provide, lease, lend, use for timesharing or service bureau purposes
or allow others to use the Licensed Software to or for the benefit of
third parties,
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d) except as specified in the Specifications or Documentation provided by
OSI, modify, incorporate into other software or create a derivative
work of any part of the Licensed Software,
e) load or use any portion of the Licensed Software (whether or not
modified or incorporated into or with other software) on or with any
machine or system other than Licensee's Designated Computer Hardware,
f) except if, as and to the extent expressly authorized in the applicable
user Documentation provided by OSI, transmit or use the Software over
a network. This does not prohibit interfacing to external systems or
networks.
g) disseminate performance information or analysis (including, without
limitation, benchmarks) to any source relating to the Licensed
Software, nor
h) sell applications developed by Licensee against OSI's Database Model.
The restrictions set forth in this paragraph shall not restrict Licensee from
developing a program, application or database that is functionally similar to
the Licensed Software, provided that such development is demonstrably
independent of any OSI confidential information and does not violate OSI's
copyrights.
4. LICENSE FEES
License fees consist of an initial License Fee and Annual License Fees. All fees
are exclusive of shipping, taxes, ______ and the like, which shall be paid by
Licensee. Late payments shall bear interest at the rate of 1.5% per month to
cover OSI's costs of collections as well as interest, or, if lower, the maximum
rate allowed by law.
4.1 INITIAL LICENSE FEES
The Initial License Fees for OSI Proprietary Software and Third Party
Software Licensed From OSI are set forth in the Initial Product Order
and subsequent Product Order(s) and are based on the Licensee's
Designated Computer Hardware and Asset and Account size. Additions to
or changes in the Licensee's Designated Computer Hardware subsequent
to Conversion and Installation may result in additional Initial
License Fees for Third Party Software Licensed From OSI. Initial
License fees for OSI Proprietary Software are due and payable
according to the following schedule:
EVENT % PAYMENT
Sign Contract
Conversion Acceptance & Live Production
License Fees for Third Party Software Licensed From OSI are due and
payable thirty (30) days following installation of such software.
4.2 ANNUAL LICENSE FEES
Annual License Fees for Licensed Software are set forth in the Support
Services Terms and Conditions and are based on the Licensee's
Designated Computer Hardware and Asset and Account size. Annual
License Fees for Proprietary Software are also based on OSI's License
Fee Schedule in effect during the License Year. Increases in
Licensee's Asset or Account size may result in increases in Annual
License Fees for OSI Proprietary Software. Additions to or changes in
the Licensee's Designated
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Computer Hardware subsequent to Conversion and Installation may result
in additional License Fees for Third Party Software Licensed From OSI.
Annual maintenance for Third Party Software Licensed from OSI
commences at conversion to Live Production use. Annual maintenance for
OSI Proprietary Software commences ninety (90) days after conversion
to Live Production use. Annual License Fees are due and payable thirty
(30) days after receipt by Licensee of OSI's invoice.
4.3 NOTIFICATION
Licensee shall notify OSI prior to changes to or installation of
additional equipment for the Designated Computer Hardware. Licensee
also shall provide a written report to OSI on or prior to each
anniversary of Installation and Conversion of its Asset and Account
size.
5. DELIVERY AND INSTALLATION
Delivery and installation of the Licensed Software shall be made in
accordance with the Implementation Terms and Conditions.
6. SOFTWARE ACCEPTANCE
6.1 Within fifteen (15) days after the Licensed Software is installed and
the Licensee's data is converted to run under the Software, the
Licensee shall perform acceptance testing (the "Acceptance Tests").
The Acceptance Tests shall be conducted on Licensee's Designated
Computer Hardware at Licensee's site and shall consist of the Licensee
entering a series of transactions warranted to be representative of
its workload and balancing them through periodic reports to determine
whether the Licensed Software functions with Licensee's products and
performs substantially in accordance with the Specifications and the
Documentation. The tests shall be completed in a one-week period. If
during this testing period the Licensed Software does not function and
perform substantially in accordance with the Documentation and the
Specifications, Licensee shall notify OSI of the non-conformance and
OSI shall have thirty (30) days thereafter within which to correct the
errors in the Licensed Software and to provide such corrections for
Licensee's further testing. Licensee shall have five (5) days after
delivery of corrections to re-conduct the Acceptance Tests. Failure of
the Licensed Software to function and perform in accordance with such
Documentation and Specifications upon the second Licensee's Acceptance
Test shall, at the option of Licensee, be grounds for termination of
this Agreement by Licensee.
6.2 Licensee may accept the Licensed Software on a provisional basis,
subject to OSI's prompt correction of specified non-conformances or
omissions from full and complete delivery of the Licensed Software. A
provisional acceptance can be revoked by Licensee in the event of
non-performance by OSI in completing the required correction or
delivery, and such non-performance shall be grounds for termination of
this Agreement. Upon successful completion of the Acceptance Tests,
Licensee shall notify OSI in writing of its acceptance of the Software
("Conversion Acceptance"). In the event that Licensee fails to conduct
the Acceptance Test within thirty (30) days of installation of the
Software, usage of the Licensed Software in Live Production for thirty
(30) calendar days shall be considered as Conversion Acceptance by the
Licensee.
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As used herein, "Live Production" means the time when Licensee uses
the Licensed Software or portions thereof to produce reports or
retrieve information from the OSI Database Model on a regular or
routine basis in a production, non-test environment.
7. MAINTENANCE AND SUPPORT SERVICES
Maintenance and Support Services shall be provided under the terms and
conditions set forth in the Support Services Terms and Conditions, which forms
part of and is incorporated into this Agreement. OSI has no other obligations to
provide support or maintenance or updates, enhancements, modifications or new
releases under this Agreement. No obligation of OSI under the Support Services
Terms and Conditions shall survive termination of the License granted hereunder.
8. TERMINATION OF LICENSE
8.1 During the term of this Agreement, the License is effective until
terminated. In addition to automatic termination at the end of the
term, termination can be effected as provided in subsections 6.1 and
6.2 above, subsections 8.2, 8.4 below, section 4 "Term & Termination"
of the "Implementation Terms and Conditions ." OSI's sole and
exclusive remedies in the event of a breach by Licensee shall be an
action for damages and, in the event of a material breach of the
provisions of Section 3 (relating to restrictions) or Section 13
(relating to confidentiality) hereof, equitable relief to enjoin the
activity of Licensee constituting the breach; provided, however, that
as a condition to either such remedies, to the extent that Section 9
below requires written notice of such breach prior to commencement of
a suit or legal action, OSI shall have given Licensee such notice.
8.2 In addition to the other remedies, in law or equity, available to OSI
hereunder, in the event of a breach by Licensee of the provisions of
subsection (a) of Section 3 (relating to reverse engineering) or
Section 13 (relating to confidentiality) which breach:
a) threatens to have a material adverse impact on the value of the
Software Confidential Information (as hereinafter defined), and
b) can be corrected by reasonable corrective steps available to the
Licensee,
OSI may terminate the License so long as it complies fully with
the provisions of this Section 8.2, as follows:
a) OSI must notify Licensee in writing specifying the actions
constituting the alleged breach and the reasonable steps
which it believes can and must be taken by Licensee to
correct such breach.
b) If Licensee, within thirty (30) days following the date of
such notice, implements the steps specified by OSI for
correcting the breach, or other similar reasonable steps
calculated to correct such breach, OSI may not terminate the
License regardless of the efficacy of such steps.
c) If Licensee fails or refuses, within thirty (30) days
following receipt of such notice, to commence taking such
steps to correct the breach and OSI wishes to terminate the
License, OSI must provide further written notice of its
intention to terminate the License effective no less than
thirty (30) days after the date of this second notice.
d) Such termination shall only take effect if:
i) the thirty (30) day notice period expires without the
Licensee having undertaken reasonable corrective steps
which have
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either been concluded or are being pursued with
reasonable diligence, and
ii) the tolling period in effect as provided in Section 8.3
below, if any, has expired.
8.3 Any dispute which arises between the parties concerning the
interpretation and application of Section 8.2 or the performance of
the obligations thereof, which dispute cannot be promptly resolved by
the parties, may be submitted by either party to binding arbitration
before the American Arbitration Association in Hartford, Connecticut,
with the loser paying the costs and attorneys fees thereof. The
termination of the License shall be tolled pending the completion and
results of such arbitration.
8.4 Licensee may terminate the License by giving OSI a sixty (60) day
prior written notice of termination. Such termination shall not result
in any refunds of License Fees, except as otherwise provided for in
Paragraph 6 hereof, and the "Implementation Terms and Conditions"
subsection 4.3 and the "Support Services Terms and Conditions"
subsection 5.4 "Response, Problem Resolution Standards and Error
Priority Levels."
8.5 Unless otherwise agreed to in writing by OSI, upon termination of the
License, Licensee shall immediately cease all use of the Licensed
Software and all portions thereof (whether or not modified or
incorporated with or into other software), return or destroy all
copies of the Licensed Software and all portions thereof to OSI, and
so certify to OSI.
8.6 Unless the Agreement has expired, except for the License and except as
otherwise expressly provided herein, the terms of this Agreement shall
survive termination of the License.
9. NOTICE OF DEFAULT
Except as to a breach of the obligations contained in Section 13 (relating to
confidentiality for which no notice is required prior to commencement of a suit
or other legal action), neither party may commence a suit or legal action on
account of a default by the other party in the performance of any of its
obligations under this Agreement, unless the party seeking to bring such suit or
action shall first give the defaulting party written notice of the default,
specifying the nature and circumstances thereof. Such notice shall be given at
least the following number of days prior to the commencement of the suit or
legal action:
a) three (3) business days in the case of defaults under Section 1 and
Section 3;
b) ten (10) days in the case of non-payment; and
c) thirty (30) days in all other cases.
10. LIMITED WARRANTY AND DISCLAIMER
10.1 OSI represents and warrants that for a period of ninety (90) days
after the date of Live Production Use (the "Warranty Period") the
Licensed Software shall:
a. Function and perform substantially in accordance with the
Documentation and Specifications.
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b. Operate on the Licensee's Designated Computer Hardware or other
hardware generally recommended by OSI for use in connection with
the Licensed Software consistent with the Specifications and
Documentation.
c. Process Licensee's banking data in accordance with the minimum
data processing standards promulgated by state or federal banking
agencies which regulate Licensee, provided that Licensee provides
OSI prior written notice of such state agencies and if Licensee's
charter and/or regulator is changing.
d. Provide commercially reasonable response times.
If Licensee discovers that the Licensed Software does not meet the
warranty criteria set forth above, Licensee shall notify OSI and OSI
shall promptly take all commercially reasonable steps necessary to
bring the Software into compliance with the warranty criteria set
forth above. During the Warranty Period, OSI will respond in the
manner set forth in the Support Services Terms and Conditions at no
charge to Licensee.
10.2 OSI represents, warrants and covenants that the media on which
Licensed Software is recorded and delivered to Licensee hereunder is
free from defects in material and workmanship under normal use and
service for a period of ninety (90) days from the date of Live
Production use. OSI agrees to replace any defective media upon return
to OSI.
10.3 OSI represents and warrants that it has taken all steps necessary to
test the Proprietary Software for Disabling Code (as defined herein)
and to eliminate Disabling Code from the Proprietary Software. OSI
warrants that the Proprietary Software will be free of Disabling Code
as of the date of delivery by OSI to Licensee. OSI will continue to
take such steps with respect to future modifications and enhancements
to keep the same and the Proprietary Software free of Disabling Code.
Disabling Code shall mean computer instructions that:
a. Alter, destroy or inhibit the Proprietary Software or Licensee's
processing environment, including without limitation, other
programs, data storage, computer libraries, and computer and
communications equipment;
b. without functional purpose, self-replicate without manual
intervention; or
c. purport to perform a meaningful function but which actually
perform either a destructive or harmful function, or perform no
meaningful function.
OSI agrees that it will maintain a master copy of the Proprietary
Software and all modifications and enhancements made by OSI thereto,
and will take such steps as are necessary to keep the same free of
Disabling Code.
10.4 THESE EXPRESS WARRANTIES TAKE THE PLACE OF AND SUPERSEDE ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED AND WHETHER OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR OTHERWISE. EXCEPT AS EXPRESSLY PROVIDED
HEREIN, OSI DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS
REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE LICENSED SOFTWARE
OR DOCUMENTATION.
THE LICENSEE UNDERSTANDS THAT OSI IS NOT RESPONSIBLE FOR AND WILL HAVE
NO LIABILITY FOR AND DOES NOT WARRANT HARDWARE, SOFTWARE, OR OTHER
ITEMS OR SERVICES PROVIDED BY ANY PERSONS OTHER THAN OSI.
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10.5 EXCEPT FOR OSI'S INDEMNITY OBLIGATIONS UNDER PARAGRAPH 12 (RELATING TO
INTELLECTUAL PROPERTY INFRINGEMENTS), A BREACH OF ITS CONFIDENTIALITY
OBLIGATIONS UNDER PARAGRAPH 13 AND ANY LIABILITY OSI MAY HAVE FOR
PERSONAL INJURY OR DAMAGE OR DESTRUCTION OF REAL OR TANGIBLE PERSONAL
PROPERTY, OSI'S LIABILITY TO LICENSEE FOR ANY CAUSE WHATSOEVER AND
REGARDLESS OF THE FORM OF ACTION AND WHETHER IN CONTRACT OR TORT, OR
AT LAW OR EQUITY, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO OSI BY
LICENSEE HEREUNDER.
10.6 EXCEPT FOR OSI'S INDEMNITY OBLIGATIONS UNDER PARAGRAPH 12 (RELATING TO
INTELLECTUAL PROPERTY INFRINGEMENTS), A BREACH OF ITS CONFIDENTIALITY
OBLIGATIONS UNDER PARAGRAPH 13 AND ANY LIABILITY OSI MAY HAVE FOR
PERSONAL INJURY OR DAMAGE OR DESTRUCTION OF REAL OR TANGIBLE PERSONAL
PROPERTY, OSI SHALL NOT BE LIABLE TO LICENSEE FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR
IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF OSI KNOWS, SHOULD HAVE
KNOWN, OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.7 EXCEPT FOR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER PARAGRAPH
13 AND ANY LIABILITY LICENSEE MAY HAVE FOR PERSONAL INJURY OR DAMAGE
OR DESTRUCTION TO REAL OR TANGIBLE PERSONAL PROPERTY, LICENSEE SHALL
NOT BE LIABLE TO OSI OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN ANY WAY RELATED TO, THIS
AGREEMENT EVEN IF LICENSEE KNOWS, SHOULD HAVE KNOWN OR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.8 THE PROVISIONS OF THIS SECTION 10 SHALL SURVIVE TERMINATION OR
EXPIRATION OF THE LICENSE AND/OR THIS AGREEMENT OR ANY REASON
WHATSOEVER.
11. FORCE MAJEURE
Neither party shall be deemed to have breached this Agreement by reason of any
delay or failure in its performance arising from events beyond its reasonable
control, including, but not limited to, acts of God, acts of war, riot,
epidemic, fire, flood or other disasters.
12. INFRINGEMENT
12.1 OSI represents and warrants that it has the sole ownership of and/or
the right to license and sub-license the Licensed Software as
contemplated by this Agreement and has the full power to grant the
rights granted herein without the consent of any other person or
entity.
12.2 OSI shall defend, indemnify and hold Licensee and its officers,
directors, agents and employees harmless from and against any and all
claims, suits, damages, liabilities, costs and expenses (including
reasonable attorneys' fees) arising out of or resulting from any claim
that Licensee's use of the OSI Proprietary Software infringes a United
States patent or copyright, or trademark or misappropriates a trade
secret of any third party, provided OSI is:
a) promptly notified of any and all threats, claims and proceedings
related thereto,
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b) given reasonable assistance (at OSI's sole cost and expense), and
c) given the opportunity to assume sole control over the defense and
all negotiations for settlement or compromise.
OSI shall not, however, enter into any settlement without Licensee's
prior written consent, which shall not be unreasonably withheld, if
such settlement impairs any material right of Licensee under the
Agreement. Notwithstanding anything to the contrary contained herein,
Licensee shall have the right to defend and settle, at OSI's expense,
against any such infringement or misappropriation claim in the event
that OSI fails to assume or reasonably pursue such defense or
reasonably protect the rights of the Licensed Software, provided such
rights conform with the provisions of this Agreement.
12.3 In the event that the Licensed Software, or any portion thereof,
becomes the subject of a claim of infringement of misappropriation,
OSI may, at its expense, take on any of the following steps so that
Licensee's use is not subject to any claim of infringement or
misappropriation and Licensee is provided with functionally equivalent
software to the reasonable satisfaction of Licensee, provided that
Licensee's use of the Licensed Software conforms with the provisions
of the Agreement:
a) procure for Licensee the right to continue using the Licensed
Software or
b) replace or modify the infringing portion of the Licensed
Software.
12.4 The foregoing obligations of OSI do not apply with respect to software
and any other products or portions or components thereof
a) which are not the latest available release supplied by OSI to
Licensee,
b) which are modified by Licensee after shipment by OSI, if the
alleged infringement relates to such modification, unless OSI has
consented to the modification in writing or such modifications is
otherwise authorized, permitted or provided for under the
Specifications, Documentation or this Agreement, or
c) which are combined with other products, processes or materials
where the alleged infringement relates to such combination,
unless OSI has consented in writing to such combination or such
combination is otherwise authorized, permitted or provided for
under the Specifications, Documentation or this Agreement.
12.5 THE FOREGOING STATES THE ENTIRE LIABILITY OF OSI WITH RESPECT TO
INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADEMARKS OR
MISAPPROPRIATION OF TRADE SECRETS BY THE OSI PROPRIETARY SOFTWARE OR
ANY PARTS THEREOF. NO COSTS OR EXPENSES SHALL BE INCURRED FOR THE
ACCOUNT OF OSI BY LICENSEE OR ITS AGENTS WITHOUT THE PRIOR WRITTEN
CONSENT OF OSI.
12.6 The provisions of Sections 12.2 do not apply to any Third Party
Software.
13. CONFIDENTIALITY
13.1 Licensee acknowledges that, in the course of using the Licensed
Software it may receive information relating to the Licensed Software
which is confidential and of value to OSI's business (the "Software
Confidential Information"). Such Software Confidential Information
shall belong solely to OSI and includes, but is not limited to, the
Licensed Software's mode of operation, trade secrets, know-how,
inventions
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(whether or not patentable), techniques, processes, programs, ideas,
algorithms, schematics, testing procedures, software design and
architecture, computer code and database model, internal
documentation, design and function specifications, product
requirements, problem reports, analysis and performance information,
user documentation and other technical information, plans and data.
Licensee agrees that it will not use or disclose any Software
Confidential Information without OSI's prior written consent, except
as expressly allowed by this End User Software License.
13.2 As part of the arrangements contemplated by this Agreement, each party
acknowledges that it will receive valuable business, marketing,
financial and other information, plans and data from the other party
which is the confidential property of the disclosing party. All
information and data which is marked "Confidential" or, in the case of
orally conveyed information, which is confirmed in writing within
thirty (30) days of conveyance to be confidential (the "General
Confidential Information" of the disclosing party) shall be treated as
confidential thereafter. The following types of information shall
always be considered confidential information (whether or not marked
as "Confidential"); financial information, marketing and business
plans, software products and systems and customer lists. Each of the
parties agrees that it shall not copy, use or disclose any General
Confidential Information of the other party without its prior written
consent, except as expressly allowed by this End User Software
License.
13.3 OSI acknowledges and agrees that Licensee's confidential information
includes personal, private and financial information of Licensee's
customers, depositors, debtors and employees used or gained by OSI
during the performance of services under this Agreement or in any
other manner ("Bank Privacy Information"). OSI's obligations with
respect to the Bank Privacy Information are not subject to the
exclusions set forth in Section 13.5 and are not limited in any way.
OSI agrees that it shall not copy, use or disclose any Bank Privacy
Information without Licensee's prior written consent, except as
expressly allowed in this Agreement. OSI further agrees that it shall
not copy, disclose or use any Bank Privacy Information or any other
information in violation of applicable federal and state privacy laws
or regulations. OSI agrees to defend Licensee from any claim by any
third party relating to the disclosure or use by OSI, its employees,
agents and consultants of the Bank Privacy Information which is
protected under privacy statutes or other privacy laws, rules or
regulations (including applicable case law) and will indemnify and
hold harmless Licensee without limitation against any and all loss,
damage or expense arising from any such claim, including reasonable
attorneys' fees.
13.4 Each party agrees in respect of General Confidential Information which
it receives from the other party, OSI agrees in respect of the Bank
Privacy Information and Licensee agrees in respect of the Software
Confidential Information that it shall:
a) take all reasonable measures to maintain such information in
confidence,
b) disclose such information only to those of its employees, agents
and consultants who have a "need to know," and only after such
employees and consultants have agreed in writing to be bound by
all of the confidentiality provisions of this Agreement,
c) not use such information for any purpose other than the purposes
expressly provided herein and
d) not copy such information except as expressly provided herein.
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Except as provided herein, Licensee shall not, without the prior
written consent of OSI, disclose or otherwise make available the
Licensed Software or copies thereof to any third party. The
foregoing provisions shall not preclude Licensee from operating
the Licensed Software in the ordinary course of Licensee's
business for its intended purpose and for the use licensed
hereunder in the presence of third parties or from providing
copies of the output and reports of the Licensed Software to such
third parties.
13.5 The confidentiality obligations set forth in this End User Software
License shall not apply with respect to information (except Bank
Privacy Information) which
a) is or has become readily publicly available without restriction
through no fault of the receiving party or its employees or
agents,
b) is received without restriction from a third party lawfully in
possession of such information and lawfully empowered to disclose
such information,
c) was rightfully in the possession of the receiving party without
restriction prior to its disclosure by the other party, or
d) is independently developed by employees, consultants or agents of
the receiving party without access to the Software Confidential
Information or the disclosing party's General Confidential
Information.
13.6 The parties recognize and agree that there is no adequate remedy at
law for a breach of Section 13, that such a breach would irreparably
harm the non disclosing party and that the non disclosing party is
entitled to equitable relief (including, without limitation,
injunctions) with respect to any such breach or potential breach in
addition to any other remedies available to it at law or in equity.
13.7 The provisions of this Section 13 shall survive termination or
expiration of the License and/or this Agreement for any reason
whatsoever.
14. GOVERNMENT MATTERS
Licensee will not remove or export from the United States or re-export from
anywhere any part of the Licensed Software or any direct product thereof to
Afghanistan, the Peoples' Republic of China or any Group Q, S, W, Y or Z country
(as specified in Supplement No. 1 to Section 770 of the US Export Administration
Regulations, or a successor thereto) or otherwise except in compliance with and
with all licenses and approvals required under applicable export laws and
regulations, including without limitation, those of the US Department of
Commerce.
15. MISCELLANEOUS
15.1 This Section 15 applies to the entire Agreement of which this End User
Software License is a part.
15.2 The License and this Agreement are not assignable or transferable by
Licensee without the prior written consent of OSI; which shall not be
unreasonably withheld or delayed, and any attempt to do so shall be
void.
15.3 Any notice, report, approval or consent required or permitted
hereunder shall be delivered in writing, or mailed by registered or
certified US mail, postage prepaid or reputable overnight carrier
(e.g. Federal Express) to the address set forth in the Initial Product
Order for notices (or such other address as a party may designate by
ten (10)
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days written notice delivered in accordance with this Section 15.3)
and shall be deemed given upon receipt.
15.4 No failure to exercise, and no delay in exercising, on the part of
either party, any privilege, any power or any rights hereunder will
operate as a waiver thereof, nor will any single or partial exercise
of any right or power hereunder preclude future exercise of any other
right or power hereunder. If any provision of this Agreement shall be
adjudged by any court of competent jurisdiction to be unenforceable or
invalid, that provision shall be limited or eliminated to the minimum
extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
15.5 The prevailing party in any action to enforce this Agreement shall be
entitled to recover costs and expenses including, without limitation,
reasonable attorneys' fees.
15.6 The price and terms of this Agreement are confidential and no press
release or other written or oral disclosure of any nature regarding
the price terms of this Agreement shall be made by either party
without the other party's prior written approval; however, approval
for such disclosure shall be deemed given to the extent such
disclosure is required to comply with governmental laws, orders, rules
or regulations.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND
LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL
BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN
INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE
GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH
PARTY TO ENTER INTO THIS AGREEMENT.
ADDITIONAL ATTACHMENTS FOLLOW
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IMPLEMENTATION TERMS AND CONDITIONS
Thsi attachment relates to and is incorporated into the Agreement identified by
the Agreement number specified below. Capitalized terms not defined herein have
the same meaning as defined elsewhere in the Agreement.
1. IMPLEMENTATION
OSI and Licensee hereby agree that the following implementation activities and
processes (collectively "Implementation") need to take place in order to install
and operate the Software which the Licensee has ordered, as indicated on the
Initial Product Order.
a. OSI and Licensee shall make available representatives to meet and
to review required Implementation tasks, set dates for such
tasks, and establish a project plan (Installation Project Plan)
mutually agreeable to both parties in accordance with OSI's then
current guidelines for installation and implementation of the
Licensed Software (the "Initial Review");
b. OSI shall provide an initial equipment requirements specification
applicable to Licensee's bank information processing system to
Licensee's selected hardware and network installation providers,
and review with Licensee and the installation providers the
necessary preparations for the Licensee's business, technical,
security and equipment requirements for its bank data processing
system;
c. Licensee's hardware and network providers shall perform a survey
of Licensee's business, technical, security and equipment
requirements for its bank information processing system, per
OSI's recommended equipment configuration, (the "On-Site
Survey"), and shall prepare a report to Licensee as to the
actions which Licensee must take to make the necessary
preparations for its bank information processing system,
including but not limited to, reporting as to the specifications
for the hardware, network and software required by Licensee (the
"Report");
d. If applicable, Licensee shall obtain from its current data
processing provider the necessary information in such media and
at such time as OSI requests to permit OSI to perform the
Pre-Conversion.
e. OSI shall provide Licensee with (the "Installation project Plan")
sixteen weeks prior to the Live Production Date, which Licensee
shall review, approve and assign personnel resources accordingly.
f. Licensee shall cause its hardware installation provider to duly
install the Designated Computer Hardware and applicable Third
Party Software Licensed From Third Party Software Vendors in
accordance with the requirements of the Report no later than the
Scheduled Equipment Date specified in the Installation Plan;
g. Licensee shall cause its network installation provider to duly
install all required network components of the Designated
Computer Hardware and applicable Third Party Software Licensed
From Third Party Vendors in accordance with the requirements of
the Report no later than the Scheduled Equipment Date specified
in the Installation Plan; (the "Network Installation");
h. OSI shall install the Licensed Software on Licensee's Designated
Computer Hardware no later than the Scheduled Licensed Software
Installation Date specified in the Installation Plan ("Licensed
Software Installation");
i. If applicable, Licensee shall obtain from its current data
processing provider the necessary information in such media as
OSI requires to permit OSI to perform the Conversion.
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j. OSI shall perform the conversion programming services required to
convert Licensee's existing core data to support the information
processing requirements of the Licensed Software ("Conversion")
per the Scheduled Conversion Dates specified in the Installation
Plan;
k. OSI shall provide personnel to train Licensee's designated
personnel in the use of the Licensed Software, as specified in
and subject to the terms and conditions of the Training Schedule;
and
l. Licensee shall perform the requisite Acceptance Test and the
Conversion Acceptance of the completed Implementation by
Licensee, in accordance with the acceptance procedures set forth
in the End User Software License.
2. IMPLEMENTATION SERVICES
2.1 SUBJECT TO THE TERMS HEREOF, THE PARTIES AGREE THAT AS PART OF
IMPLEMENTATION, OSI WILL PROVIDE THE FOLLOWING SERVICES TO LICENSEE
(COLLECTIVELY, THE "IMPLEMENTATION SERVICES"):
a. Participate in the Initial Review,
b. Provide and Review the Installation Project Plan, review the
On-Site Survey and the Report,
c. Perform the Licensed Software Installation,
d. Perform the Pre-Conversion and Conversion, if required, and
e. Perform the Training set forth in the Training Schedule.
2.2 LICENSEE SHALL BE SOLELY RESPONSIBLE FOR EQUIPMENT, NETWORK AND THIRD
PARTY SOFTWARE LICENSED FROM THIRD PARTY PROVIDERS. AS PART OF THE
INSTALLATION, LICENSEE SHALL ACQUIRE SUCH ADDITIONAL HARDWARE, NETWORK
COMPONENTS AND SYSTEMS SOFTWARE AS MUTUALLY AGREED TO AND AS INDICATED
IN A REVISED INITIAL PRODUCT ORDER FOLLOWING THE ON-SITE SURVEY.
LICENSEE SHALL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO TIMELY
COMPLETE SAID INSTALLATIONS ON OR BEFORE THE RESPECTIVE SCHEDULED DATE
SPECIFIED ON THE INITIAL PRODUCT ORDER.
2.3 OSI SHALL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO COMPLETE THE
LICENSED SOFTWARE INSTALLATION ON OR BEFORE THE SCHEDULED LIVE
PRODUCTION DATE SPECIFIED IN THE INITIAL PRODUCT ORDER.
OSI's completion of the Licensed Software Installation by the
Scheduled Date, is conditioned upon the Licensee completing those
Implementation tasks not identified as OSI's Implementation Services
and, therefore, identified as responsibilities of the Licensee,
including without limitation, Equipment Installation and Network
Installation. All Licensee and OSI tasks will be per The Installation
Project Plan, the "Initial Review" which OSI will prepare for
Licensee, and upon Licensee's acceptance will be the schedule of tasks
and responsibilities necessary to achieve Live Production by the
Scheduled Date.
3. FEES AND PAYMENT
3.1 LICENSEE SHALL PAY OSI THE IMPLEMENTATION SERVICE FEE SPECIFIED IN THE
INITIAL PRODUCT ORDER, WHICH SHALL ENTITLE LICENSEE TO A TURNKEY
INSTALLATION TO INCLUDE TRAINING PER THE AGREED UPON INSTALLATION
PLAN. THE IMPLEMENTATION SERVICE FEE SHALL BE BILLED BY OSI UPON THE
LIVE PRODUCTION DATE. PAYMENT SHALL BE DUE IN ACCORDANCE WITH SECTION
3.4 BELOW.
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3.2 IF, AS A RESULT OF THE ON-SITE SURVEY AND THE REPORT, LICENSEE
DETERMINES THAT IT DESIRES OSI TO PERFORM ADDITIONAL SERVICES NOT
INCLUDED IN THE INSTALLATION PROJECT PLAN, ADDITIONAL SERVICES SHALL
BE DOCUMENTED IN AN AMENDED INSTALLATION PROJECT PLAN. OSI RESERVES
THE RIGHT TO CHARGE LICENSEE FOR ANY SUCH SERVICES PERFORMED ON BEHALF
OF LICENSEE, AT THE RATES SPECIFIED IN THE INITIAL PRODUCT ORDER.
3.3 IN THE EVENT THAT IT IS NECESSARY FOR OSI TO PERFORM ADDITIONAL
SERVICES PURSUANT TO THE AMENDED INSTALLATION PROJECT PLAN, OSI AND
LICENSEE SHALL ENTER INTO GOOD FAITH NEGOTIATIONS IN ORDER TO
DETERMINE THE AMOUNT OF ADDITIONAL DAYS OF IMPLEMENTATION SERVICES
THAT WILL BE REQUIRED TO COMPLETE IMPLEMENTATION (THE "ADDITIONAL
IMPLEMENTATION SERVICE DAYS") AND THE RATE OF SUCH DAYS.
The Additional Implementation Service Days and applicable rates agreed
upon shall be documented by execution of an OSI Service Work Order
Form. Licensee shall pay for such Additional Implementation Service
Days at such rates as are evidenced in the OSI Service Work Order
Form.
3.4 LICENSEE SHALL BE RESPONSIBLE FOR ALL TAXES ASSOCIATED WITH
IMPLEMENTATION SERVICES OTHER THAN TAXES BASED ON OSI'S NET INCOME AND
FRANCHISE TAXES. LICENSEE'S PAYMENT SHALL BE MADE WITHIN THIRTY (30)
DAYS OF RECEIPT OF OSI'S INVOICE.
3.5 LICENSEE AGREES TO REIMBURSE OSI FOR ALL REASONABLE TRAVEL AND LIVING
EXPENSES INCURRED (BEYOND FORTY (40) MILES FROM OSI'S ADDRESS AS
SPECIFIED IN THIS AGREEMENT) BY OR ON BEHALF OF OSI AND ITS PERSONNEL
IN FURNISHING THE IMPLEMENTATION SERVICES TO LICENSEE AT LICENSEE'S
FACILITY OR AT ANY OTHER LOCATION OTHER THAN OSI'S OWN FACILITIES. OSI
AGREES TO PROVIDE TO LICENSEE UPON REQUEST A GOOD FAITH ESTIMATE OF
SUCH REIMBURSABLE EXPENSES. ANY SUCH TRAVEL AND LIVING EXPENSES SHALL
BE BILLED BY OSI TO LICENSEE ON A MONTHLY BASIS.
4. TERM AND TERMINATION
4.1 IMPLEMENTATION SERVICES SHALL BE PROVIDED UNTIL COMPLETION OF
IMPLEMENTATION AS CONTEMPLATED HEREUNDER.
4.2 LICENSEE MAY TERMINATE THE IMPLEMENTATION SERVICES IF OSI FAILS TO
COMPLY WITH ANY MATERIAL PROVISION OF THESE IMPLEMENTATION TERMS AND
CONDITIONS AND OSI MAY TERMINATE THE IMPLEMENTATION SERVICES IF
LICENSEE FAILS TO REASONABLY COOPERATE WITH OSI'S PERFORMANCE OF THE
IMPLEMENTATION SERVICES OR FAILS TO COMPLY WITH ANY MATERIAL PROVISION
OF THESE IMPLEMENTATION TERMS AND CONDITIONS; PROVIDED, HOWEVER, IN
EACH CASE, THAT:
a. the non-defaulting party must first provide the defaulting party
with written notice of the default and give the defaulting party
a period of thirty (30) days in which to cure such default, and
b. in the event that the default is of such a nature that it cannot
be cured within thirty (30) days, the defaulting party shall be
given a reasonable period of additional time to cure such
default, further provided that the defaulting party promptly
commences work to cure such default and makes diligent efforts to
cure such default as soon as practicable.
4.3 ANY TERMINATION OF THE IMPLEMENTATION SERVICES SHALL ALSO BE DEEMED A
TERMINATION OF THE LICENSE AND THE AGREEMENT.
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In the event of termination of the Implementation Services or the
License for any reason other than a material default by OSI prior to
the Live Production Date, Licensee shall pay to OSI the full amount of
the Implementation Services Fee and twenty-five percent (25%) of the
Initial Software License Fee.
In the event of termination of the License by Licensee for any reason
after completion of the Conversion and a successful Acceptance Test,
Licensee shall pay to OSI the full Implementation Fee, the full
Software License Fee and any other amounts that have accrued and are
payable by Licensee pursuant to the terms of this Agreement.
5. CONFIDENTIALITY
All information provided by either party to the other pursuant to these terms
and conditions shall be subject to the confidentiality obligations set forth in
the End User Software License.
6. EXCLUSIONS
OSI shall have no obligation to conduct Implementation Services in relation to
any software other than that specified in a Product Order and shall only be
obligated to conduct Licensed Software Installation, Pre-Conversion, if
applicable, Conversion, if applicable, and Training Services once Licensee has
completed Equipment and Network Installations in accordance with the terms and
conditions of this Agreement.
7. LIMITATION OF LIABILITY
7.1 OSI REPRESENTS AND WARRANTS THAT ALL IMPLEMENTATION SERVICES WILL BE
PERFORMED BY DULY QUALIFIED PERSONNEL IN A PROFESSIONAL XXXXXXX-LIKE
MANNER AND TO STANDARDS GENERALLY ACCEPTED IN THE INDUSTRY.
7.2 EXCEPT FOR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5
OR ANY LIABILITY OSI MAY HAVE FOR PERSONAL INJURY OR DAMAGE OR
DESTRUCTION OF REAL OR TANGIBLE PERSONAL PROPERTY, OSI'S LIABILITY FOR
DAMAGES FOR ANY CAUSE OF ACTION WHATSOEVER RELATING TO OSI'S AGREEMENT
TO PROVIDE IMPLEMENTATION SERVICES SHALL BE LIMITED TO THE AMOUNT PAID
BY LICENSEE FOR THE IMPLEMENTATION SERVICES. OSI'S LIABILITY SHALL BE
FURTHER LIMITED AS PROVIDED IN THE END USER SOFTWARE LICENSE.
7.3 THESE TERMS AND CONDITIONS CONSTITUTE A SERVICE CONTRACT AND NOT A
PRODUCT WARRANTY. THE SOFTWARE AND ALL MATERIALS RELATED TO THE
LICENSED SOFTWARE ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH
IN THE END USER SOFTWARE LICENSE.
7.4 THE PROVISIONS OF THIS SECTION 7 SHALL SURVIVE TERMINATION OR
EXPIRATION OF IMPLEMENTATION SERVICES AND/OR THE AGREEMENT FOR ANY
REASON WHATSOEVER.
ADDITIONAL ATTACHMENTS FOLLOW
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TRAINING SCHEDULE
TRAINING ON THE LICENSED SOFTWARE SHALL BE PROVIDED BY OSI TO INDIVIDUALS
DESIGNATED BY THE LICENSEE ON A "TRAIN-THE-TRAINER" BASIS, ACCORDING TO THE
FOLLOWING PLAN. OSI RECOGNIZES THAT THE TRAINING NEEDS OF INDIVIDUALS WILL VARY
AND ARE DEPENDENT UPON DIFFERENT SKILL LEVELS. CONSEQUENTLY, SOME ASPECTS OF THE
TRAINING SCHEDULE WILL BE BASIC TO SOME WHILE NECESSARY FOR OTHERS. THE SCHEDULE
SHALL BE AS FOLLOWS:
CONCEPTS AND FACILITIES 2 DAYS
O INTRODUCTION TO THE COMPLETE BANKING SOLUTION
O OVERVIEW OF THE SYSTEMS TRULY RELATIONAL DATABASE CONCEPT
(PERSONS, ADDRESSES, ACCOUNTS, RELATIONSHIPS, ETC.)
O TRUE CLIENT/SERVER ARCHITECTURE
O APPLICATION COMPONENT OVERVIEW
O APPLICATION AND DATA SECURITY
O ON-LINE HELP AND DOCUMENTATION
APPLICATION TRAINING 15 DAYS
O DEPOSIT PRODUCT SET-UP AND MAINTENANCE
O LOAN PRODUCT SET-UP AND MAINTENANCE
O SECURITY
O TELLER
O SYSTEM ADMINISTRATION
O CUSTOMER SERVICE REPRESENTATIVE
O BATCH MANAGER
O BATCH SERVER
O LOAN MONETARY
O LOAN CSR
O GENERAL LEDGER INTERFACE
O BANK OPERATIONS
O INTERFACE PROCESSING
O BRANCH OPERATIONS
DATABASE TRAINING 1 DAY
O DATABASE SERVER BACKUP/RECOVERY
O DATABASE ROLE SETUP/USER SETUP
O SYNONYM CREATION
O ARCHIVING MODE
OPERATIONS TRAINING 1 DAY
O GENERAL OPERATION - BANK
O GENERAL OPERATION - BRANCH/DEPARTMENT LEVEL
O INTERFACES (ACH, ATM, ETC.)
O SECURITY
O TECHNICAL SUPPORT
SYSTEM MANAGEMENT 2 DAYS
O NETWORK
O OPERATING SYSTEM
O REMOTE SUPPORT
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ADDITIONAL ATTACHMENTS FOLLOW
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SUPPORT SERVICES TERMS AND CONDITIONS
THIS ATTACHMENT RELATES TO AND IS HEREBY INCORPORATED INTO THE BELOW-REFERENCED
AGREEMENT. CAPITALIZED TERMS NOT DEFINED IN SECTION 8 BELOW HAVE THE SAME
MEANING AS DEFINED ELSEWHERE IN THIS AGREEMENT.
1. COVERAGE
SUBJECT TO THE TERMS HEREOF, OSI SHALL PROVIDE SUPPORT SERVICES TO LICENSEE FOR
THE LICENSED SOFTWARE INDICATED ON THE INITIAL PRODUCT ORDER. OSI SHALL PROVIDE
SUPPORT SERVICES HEREUNDER FOR EACH ADDITIONAL INSTALLATION OF LICENSED
SOFTWARE, PROVIDED LICENSEE PAYS TO OSI INITIAL AND ANNUAL LICENSE FEES FOR SUCH
ADDITIONAL INSTALLATIONS AS SPECIFIED IN SUBSEQUENT PRODUCT ORDERS. SUPPORT
SERVICES MUST BE OBTAINED SEPARATELY FOR EACH INSTALLATION OF LICENSED SOFTWARE.
2. SUPPORT SERVICES
SUPPORT SERVICES CONSIST OF:
a) ERROR CORRECTION AND TELEPHONE SUPPORT PROVIDED TO THE TECHNICAL
SUPPORT CONTACT CONCERNING THE INSTALLATION AND USE OF THE THEN
CURRENT RELEASE OF THE LICENSED SOFTWARE AND PREVIOUS SEQUENTIAL
RELEASE,
b) PRODUCT UPDATES, AS DEFINED HEREIN, OF THE LICENSED SOFTWARE THAT OSI
IN ITS DISCRETION MAKES GENERALLY AVAILABLE.
"PRODUCT UPGRADES" MEANS NEW RELEASES OF THE LICENSED SOFTWARE WHICH
SUPPORT NEW REGULATIONS AND PROVIDE PRODUCT ENHANCEMENTS AND FIXES.
PRODUCT UPDATES CONSIST OF ONE COPY OF PUBLISHED REVISIONS TO THE
PRINTED DOCUMENTATION AND ONE COPY OF REVISIONS THE MACHINE READABLE
LICENSED SOFTWARE. SUPPORT SERVICES DO NOT INCLUDE THE PHYSICAL
INSTALLATION OF PRODUCT UPDATES; ALL SUCH INSTALLATIONS MAY BE
PERFORMED BY OSI UPON LICENSEE'S WRITTEN REQUEST AND SHALL BE BILLABLE
TO LICENSEE AT OSI'S THEN CURRENT APPLICABLE RATE.
AS PART OF THE SUPPORT SERVICES PROVIDED HEREUNDER, OSI AGREES TO
PROVIDE PRODUCT UPDATES ON A TIMELY BASIS IN ORDER TO ENABLE LICENSEE
TO COMPLY WITH STATE AND FEDERAL BANKING LAWS AND REGULATIONS
PERTAINING TO THE SUBJECT MATTER OF THE LICENSED SOFTWARE. AS PROVIDED
IN THE EXCLUSIONS SECTION OF THIS DOCUMENT, A CONDITION PRECEDENT TO
CONTINUED SUPPORT SERVICES, PRODUCT UPDATES AND ANY WARRANTY RELATING
TO THE SOFTWARE, LICENSEE AGREES TO PROMPTLY IMPLEMENT SUCH
MODIFICATIONS, UPDATES AND ENHANCEMENTS TO THE LICENSED SOFTWARE (IN
THE FORM OF PRODUCT UPDATES) AND TO THIRD PARTY SOFTWARE LICENSED FROM
THIRD PARTY AS OSI SHALL REQUIRE FROM TIME TO TIME IN ITS SOLE
DISCRETION.
3. TERM AND TERMINATION
3.1 SUPPORT SERVICES SHALL BE PROVIDED FOR THE DURATION OF THE END-USER
SOFTWARE LICENSE, UNLESS TERMINATED BY EITHER PARTY AS PROVIDED IN
THIS AGREEMENT HEREIN.
3.2 OSI MAY SUSPEND OR CANCEL SUPPORT SERVICES IF LICENSEE FAILS TO MAKE
PAYMENTS PURSUANT TO THE SECTION TITLED "FEES AND PAYMENT," OTHER THAN
PAYMENTS BEING DISPUTED IN GOOD FAITH, WITHIN TEN (10) DAYS AFTER
LICENSEE RECEIVES NOTICE OF NONPAYMENT.
3.3 OSI MAY SUSPEND OR CANCEL SUPPORT SERVICES IF LICENSEE FAILS IN A
REASONABLY PROMPT MANNER TO IMPLEMENT SUCH MODIFICATIONS, UPDATES AND
ENHANCEMENTS TO THE LICENSED SOFTWARE (IN THE FORM OF PRODUCT UPDATES)
AND TO THIRD PARTY SOFTWARE
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LICENSED FROM THIRD PARTY AS OSI SHALL REQUIRE FROM TIME TO TIME IN
ITS SOLE DISCRETION.
3.4 LICENSEE MAY TERMINATE SUPPORT SERVICES AND ITS PAYMENT OBLIGATIONS
HEREUNDER BY GIVING OSI A THIRTY (30) DAYS PRIOR WRITTEN NOTICE OF
TERMINATION. SUCH TERMINATION SHALL BE EFFECTIVE ONLY UPON THE
EXPIRATION OF THE SUPPORT PERIOD COVERED BY LICENSEE'S LAST PAID
ANNUAL LICENSE FEE.
3.5 OSI MAY TERMINATE IN ITS SOLE DISCRETION THE SUPPORT SERVICES RELATED
TO A SPECIFIC SOFTWARE VERSION, DESIGNATED COMPUTER HARDWARE, HARDWARE
CONFIGURATION OR NETWORK STRUCTURE OF THE SOFTWARE UPON A PRIOR THREE
(3) YEAR WRITTEN NOTICE OF SUPPORT SERVICE DISCONTINUANCE.
4. FEES AND PAYMENT
4.1 LICENSEE SHALL PAY OSI AN ANNUAL LICENSE FEE FOR THE LICENSED
SOFTWARE, WHICH SHALL BE COMPUTED IN ACCORDANCE WITH THE LICENSE FEE
SCHEDULE. THE ANNUAL LICENSE FEE COMMENCES NINETY (90) DAYS FOLLOWING
THE LIVE PRODUCTION DATE.
THE ANNUAL LICENSE FEE SHALL BE BILLED ON AN ANNUAL BASIS, PAYABLE IN
ADVANCE OF OSI'S PROVIDING ANNUAL SUPPORT SERVICES. LICENSEE'S PAYMENT
SHALL BE DUE WITHIN THIRTY (30) DAYS OF RECEIPT OF OSI INVOICE.
LICENSEE SHALL BE RESPONSIBLE FOR ALL TAXES ASSOCIATED WITH SUPPORT
SERVICES OTHER THAN US TAXES BASED ON OSI'S NET INCOME AND FRANCHISE
TAXES. IN THE EVENT LICENSEE FAILS TO PAY OSI BY THE DUE DATE, THEN TO
REINSTATE OR RENEW SUPPORT SERVICES, LICENSEE SHALL FIRST PAY OSI ALL
UNPAID PRIOR ANNUAL LICENSE FEES, PLUS A LATE CHARGE OF 1.5% PER MONTH
OVERDUE, AND THE THEN CURRENT ANNUAL LICENSE FEE, IF ANY, AS COMPUTED
IN ACCORDANCE WITH THIS AGREEMENT.
4.2 OSI INTENDS TO PROVIDE CERTAIN SUPPORT SERVICES VIA A REMOTE ON-LINE
CONNECTION TO LICENSEE'S DESIGNATED COMPUTER HARDWARE. LICENSEE HEREBY
AGREES TO ASSIST OSI IN THE CREATION OF SUCH A REMOTE ON-LINE
CONNECTION AS PART OF THE IMPLEMENTATION OF THE SOFTWARE AND AGREES TO
MAINTAIN AND ALLOW OSI ACCESS TO ITS DESIGNATE COMPUTER HARDWARE AND
THE SOFTWARE THROUGH SUCH REMOTE ON-LINE CONNECTION. IN THE EVENT THAT
THE REMOTE ON-LINE CONNECTION IS NOT AVAILABLE TO OSI NECESSITATING
THAT OSI'S PERSONNEL HAVE TO ATTEND LICENSEE'S FACILITY TO PERFORM
SUPPORT SERVICES THAT WOULD OTHERWISE HAVE BEEN PROVIDED VIA THE
REMOTE ON-LINE CONNECTION ("ADDITIONAL SUPPORT SERVICES"), LICENSEE
AGREES, IN ADDITION TO THE ANNUAL LICENSE FEE:
a) TO PAY A PER DIEM CHARGE FOR ALL ADDITIONAL SUPPORT SERVICES AT
OSI'S THEN STANDARD RATES FOR SUCH SERVICES AND
b) TO REIMBURSE OSI FOR ALL REASONABLE TRAVEL AND LIVING EXPENSES
INCURRED BY OR ON BEHALF OF OSI AND ITS PERSONNEL IN PROVIDING
THE ADDITIONAL SUPPORT SERVICES TO LICENSEE AT LICENSEE'S
FACILITY, WHICH SHALL HAVE BEEN PRE- APPROVED BY LICENSEE IN
WRITING.
ANY SUCH CHARGES FOR ADDITIONAL SUPPORT SERVICES AND REIMBURSEMENT FOR
TRAVEL AND LIVING EXPENSES SHALL BE BILLED BY OSI TO LICENSEE ON A
MONTHLY BASIS.
5. RESPONSE, PROBLEM RESOLUTION STANDARDS AND ERROR PRIORITY LEVELS
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5.1 ALL REASONABLE EFFORTS SHALL BE MADE TO RESOLVE PROBLEMS PROMPTLY.
UPON LICENSEE'S NOTIFICATION TO OSI OF A PROBLEM, OSI WILL INVESTIGATE
SUCH PROBLEM TO DETERMINE THE NATURE AND ORIGIN OF SUCH PROBLEM AND
UPON COMPLETION OF SUCH INVESTIGATION OUTLINE TO LICENSEE THE
PROCEDURES TO BE FOLLOWED IN REACHING RESOLUTION TO SUCH PROBLEM.
INITIAL CALL-BACK RESPONSE SHALL BE PROVIDED WITHIN ONE-HALF (1/2)
HOUR. OSI SHALL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO CORRECT
ANY ERROR OR NON- CONFORMANCE REPORTED BY LICENSEE IN THE SOFTWARE,
WITH THE FOLLOWING PRIORITY LEVELS REASONABLY ASSIGNED TO SUCH ERROR
BY OSI IN ITS SOLE DISCRETION:
a) PRIORITY A ERRORS - OSI SHALL PROMPTLY COMMENCE THE FOLLOWING
PROCEDURES:
i) ASSIGN OSI PERSONNEL TO CORRECT THE ERROR;
ii) NOTIFY OSI MANAGEMENT THAT SUCH ERRORS HAVE BEEN REPORTED
AND OF STEPS BEING TAKEN TO CORRECT SUCH ERROR(S);
iii) PROVIDE LICENSEE WITH PERIODIC REPORTS ON THE STATUS OF THE
CORRECTIONS; AND
iv) INITIATE, WITHIN ONE (1) HOUR OF THE TIME THAT THE ERROR IS
REPORTED TO OSI, WORK TO PROMPTLY PROVIDE LICENSEE WITH A
WORK-AROUND OR FIX AND DILIGENTLY PURSUE A RESOLUTION OF THE
ERROR. IN THE EVENT OSI ADDRESSES ANY PRIORITY A ERROR BY
MEANS OF A TEMPORARY WORK- AROUND, OSI SHALL EXERCISE
COMMERCIALLY REASONABLE EFFORTS TO EFFECT A FINAL RESOLUTION
OF THE ERROR AS SOON AS POSSIBLE THEREAFTER.
v) WITH RESPECT TO PRIORITY A ERRORS THAT OSI BECOMES AWARE OF,
OSI SHALL PROMPTLY NOTIFY LICENSEE AND PROCEED TOWARDS
RESOLUTION.
b) PRIORITY B ERRORS - OSI SHALL EXERCISE COMMERCIALLY REASONABLE
EFFORTS TO INCLUDE THE FIX FOR THE ERROR IN THE NEXT REGULAR
PRODUCT UPDATE.
c) PRIORITY C ERRORS - OSI MAY INCLUDE THE FIX FOR THE ERROR IN THE
NEXT PRODUCT UPDATE.
5.2 IF OSI BELIEVES REASONABLY AND IN GOOD FAITH THAT A PROBLEM REPORTED
BY LICENSEE MAY NOT BE DUE TO AN ERROR IN THE LICENSED SOFTWARE OR DUE
TO AN ERROR IN THIRD PARTY SOFTWARE LICENSED THROUGH OSI, BUT MAY BE
DUE TO ANOTHER CAUSE (AS ILLUSTRATED HEREIN), OSI WILL SO NOTIFY
LICENSEE. SUCH OTHER CAUSE MAY INCLUDE BUT NOT BE LIMITED TO THE
FAILURE BY LICENSEE TO INSTALL OSI RECOMMENDED UPDATES TO THIRD PARTY
SOFTWARE LICENSED FROM THIRD PARTY, THE INSTALLATION BY LICENSEE OF
SOFTWARE, OR OF A RELEASE OR VERSION OF THIRD PARTY SOFTWARE, WHICH
HAS NOT BEEN CERTIFIED AND APPROVED BY OSI, OR LICENSEE'S INSTALLATION
OF HARDWARE OR NETWORK COMPONENTS WHICH HAVE NOT BEEN CERTIFIED AND
APPROVED BY OSI. AT THAT TIME, LICENSEE MAY
a) INSTRUCT OSI TO PROCEED WITH PROBLEM DETERMINATION AT LICENSEE'S
POSSIBLE EXPENSE AS SET FORTH BELOW, OR
b) INSTRUCT OSI THAT LICENSEE DOES NOT WISH THE PROBLEM PURSUED AT
LICENSEE'S POSSIBLE EXPENSE.
IF LICENSEE REQUESTS THAT OSI PROCEED WITH PROBLEM DETERMINATION
AT ITS POSSIBLE EXPENSE AND OSI DETERMINES THAT THE ERROR WAS NOT
DUE TO AN ERROR IN THE LICENSED SOFTWARE, LICENSEE SHALL PAY OSI,
AT OSI'S THEN CURRENT AND STANDARD CONSULTING RATES, FOR ALL WORK
PERFORMED IN CONNECTION WITH SUCH DETERMINATION, PLUS REASONABLE
RELATED EXPENSES INCURRED THEREWITH.
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LICENSEE SHALL NOT BE LIABLE FOR:
a) PROBLEM DETERMINATION OR REPAIR TO THE EXTENT PROBLEMS ARE DUE TO
ERRORS IN THE LICENSED SOFTWARE OR TO ERRORS IN THIRD PARTY
SOFTWARE LICENSED THROUGH OSI,
b) WORK PERFORMED UNDER THIS PARAGRAPH IN EXCESS OF ITS
INSTRUCTIONS, OR
c) WORK PERFORMED AFTER LICENSEE HAS NOTIFIED OSI THAT IT NO LONGER
WISHES WORK ON THE PROBLEM DETERMINATION TO BE CONTINUED AT ITS
POSSIBLE EXPENSE (SUCH NOTICE SHALL BE DEEMED GIVEN WHEN ACTUALLY
RECEIVED IN WRITING BY OSI).
IF LICENSEE INSTRUCTS OSI THAT IT DOES NOT WISH THE PROBLEM PURSUED AT
ITS POSSIBLE EXPENSE OR IF SUCH DETERMINATION REQUIRES EFFORT IN
EXCESS OF LICENSEE'S INSTRUCTIONS, OSI MAY, AT ITS SOLE DISCRETION,
ELECT NOT TO INVESTIGATE THE ERROR WITH NO LIABILITY THEREFOR. IN ALL
CASES WHERE THE PROBLEMS ARE DUE TO LICENSED SOFTWARE OR TO ERRORS IN
THIRD PARTY SOFTWARE LICENSED THROUGH OSI, OSI SHALL BE RESPONSIBLE
FOR CORRECTING SAME.
5.3 IN THE EVENT THAT OSI FAILS TO RESOLVE A PROBLEM OR CORRECT AN ERROR
WITHIN A REASONABLE TIME FRAME, THE PROBLEM SHALL BE ESCALATED TO OSI
SENIOR MANAGEMENT AND ADDITIONAL TECHNICAL SUPPORT RESOURCES OF A
LEVEL APPROPRIATE FOR RESOLUTION SHALL BE ASSIGNED TO THE PROBLEM ON A
PRIORITY BASIS. IN THE CASE OF A PRIORITY A ERROR, FOUR (4) HOURS FROM
THE TIME THE ERROR IS REPORTED SHALL BE DEEMED A REASONABLE TIME FRAME
TO ESCALATE OSI'S EFFORTS.
5.4 IN THE EVENT THAT OSI IS UNABLE TO RESOLVE OR CORRECT A PRIORITY A
ERROR IN OSI'S PROPRIETARY SOFTWARE WITHIN A COMMERCIALLY REASONABLE
PERIOD OF TIME, LICENSEE SHALL BE ENTITLED TO TERMINATE THE LICENSE AS
PROVIDED IN SECTION 8.4 OF THE END USER SOFTWARE LICENSE AND RETURN
THE LICENSED SOFTWARE WITH A PRO-RATED INITIAL LICENSE FEE REFUND
BASED ON AN UNEXPIRED TERM AMORTIZED USAGE SCHEDULE.
6. CONFIDENTIALITY
ALL INFORMATION PROVIDED BY EITHER PARTY TO THE OTHER PURSUANT TO THESE TERMS
AND CONDITIONS SHALL BE SUBJECT TO THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN
THE END USER SOFTWARE LICENSE.
7. EXCLUSIONS
7.1 A CONDITION PRECEDENT TO OSI'S OBLIGATION TO PERFORM SUPPORT SERVICES
SHALL BE THAT THE SOFTWARE PROBLEMS SHALL NOT BE SOLELY THE RESULT OF
a) LICENSEE'S NEGLIGENCE, ABUSE OR MISAPPLICATION OF THE SOFTWARE,
b) USE OF THE SOFTWARE OTHER THAN AS SPECIFIED IN THE DOCUMENTATION,
c) USE OF THE SOFTWARE IN CONJUNCTION WITH HARDWARE IDENTIFIED BY
OSI AS INCOMPATIBLE WITH THE SOFTWARE,
d) LICENSEE'S FAILURE TO PROMPTLY IMPLEMENT SUCH MODIFICATIONS,
UPDATES AND ENHANCEMENTS TO THE LICENSED SOFTWARE (IN THE FORM OF
PRODUCT UPDATES) AND TO THIRD PARTY SOFTWARE LICENSED FROM THIRD
PARTY AS OSI SHALL REQUIRE FROM TO TIME IN ITS SOLE DISCRETION,
OR
e) OTHER CAUSES BEYOND THE REASONABLE CONTROL OF OSI.
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7.2 OSI SHALL HAVE NO OBLIGATION TO SUPPORT:
a) ALTERED, DAMAGED OR MODIFIED LICENSED SOFTWARE (UNLESS SUCH
MODIFICATIONS ARE CONSENTED TO IN WRITING BY OSI OR OTHERWISE
AUTHORIZED, PERMITTED OR PROVIDED FOR UNDER THE DOCUMENTATION,
SPECIFICATIONS OR THIS AGREEMENT) OR ANY PORTION OF THE LICENSED
SOFTWARE INCORPORATED WITH OR INTO OTHER SOFTWARE;
b) LICENSED SOFTWARE THAT IS NOT THE THEN CURRENT RELEASE OR
IMMEDIATELY PREVIOUS SEQUENTIAL RELEASE.
7.3 UPON LICENSEE'S REQUEST, OSI SHALL PROVIDE SUPPORT SERVICES FOR THE
LICENSED SOFTWARE WHICH HAS MALFUNCTIONED AS A RESULT OF ANY OF THE
CAUSES DESCRIBED IN THIS SECTION 7 AT ITS THEN CURRENT AND STANDARD
RATES FOR MATERIAL AND LABOR.
7.4 SUPPORT SERVICES DO NOT INCLUDE PHYSICAL INSTALLATION OF PRODUCT
UPDATES.
8. LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 OR ANY
LIABILITY OSI MAY HAVE FOR PERSONAL INJURY OR DAMAGE OR DESTRUCTION OF REAL OR
TANGIBLE PERSONAL PROPERTY, OSI'S LIABILITY FOR DAMAGES FROM ANY CAUSE OF ACTION
WHATSOEVER RELATING TO OSI'S AGREEMENT TO PROVIDE SUPPORT SERVICES SHALL BE
LIMITED TO THE AMOUNT PAID BY LICENSEE AS ANNUAL LICENSE FEE FOR THE APPLICABLE
YEAR.
OSI AGREES THAT IT WILL NOT WRONGFULLY DISABLE OR OTHERWISE RENDER INOPERABLE
THE SOFTWARE OR ANY OTHER HARDWARE OR SOFTWARE ON LICENSEE'S COMPUTER SYSTEM FOR
ANY REASON. ANY LIMITATION OF LIABILITIES SET OUT IN THIS SECTION AND WITH
RESPECT TO OSI WILL BE NULL AND VOID IF OSI BREACHES ITS AGREEMENT SET FORTH IN
THE IMMEDIATELY PRECEDING SENTENCE.
9. DEFINITIONS
UNLESS DEFINED OTHERWISE HEREIN, CAPITALIZED TERMS USED IN THESE SUPPORT
SERVICES TERMS AND CONDITIONS SHALL HAVE THE SAME MEANING AS SET FORTH IN THE
AGREEMENT.
"ACCOUNTS" MEANS COMBINED TOTALS OF LICENSEE'S LIABILITY AND ASSET ACCOUNTS
PROCESSED ON THE SOFTWARE.
"ASSET SIZE" MEANS TOTAL ASSETS AS DESCRIBED IN THE LICENSEE'S MOST RECENT
QUARTERLY REPORT OF CONDITION ("CALL REPORT") FILED WITH THE PRIMARY REGULATOR.
"ERROR" MEANS THE NON-CONFORMANCE OR ERROR IN LICENSED SOFTWARE, OR THE
APPLICABLE PORTION THEREOF, WHICH CAUSES THE OSI PROPRIETARY SOFTWARE TO FAIL TO
CONSISTENTLY, ACCURATELY AND RELIABLY OPERATE AND PERFORM THE FEATURES AND
FUNCTIONS DESCRIBED IN AND IN ACCORDANCE WITH THE SPECIFICATIONS AND THE
DOCUMENTATION.
"ERROR CORRECTION" MEANS THE USE OF COMMERCIALLY REASONABLE EFFORTS TO CORRECT
ERRORS IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED IN THIS ATTACHMENT.
"FIX" MEANS THE REPAIR OR REPLACEMENT OF OBJECT OR EXECUTABLE CODE VERSIONS OF
LICENSED SOFTWARE TO REMEDY AN ERROR.
"PREVIOUS SEQUENTIAL RELEASE" MEANS THE RELEASE OF LICENSED SOFTWARE WHICH HAS
BEEN REPLACED BY A SUBSEQUENT RELEASE OF THE SAME LICENSED SOFTWARE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, A PREVIOUS SEQUENTIAL
RELEASE WILL BE SUPPORTED BY OSI FOR A PERIOD OF NOT LESS THAN SIX (6) MONTHS
AFTER RELEASE OF THE SUBSEQUENT RELEASE.
"PRIORITY A ERROR" MEANS AN ERROR WHICH RENDERS OSI PROPRIETARY SOFTWARE
INOPERATIVE, CAUSES MATERIAL INACCURACIES IN THE DATA PROCESSED BY THE OSI
PROPRIETARY SOFTWARE, OR MATERIALLY RESTRICTS LICENSEE'S USE OF THE OSI
PROPRIETARY SOFTWARE.
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"PRIORITY B ERROR" MEANS AN ERROR WHICH DEGRADES THE FUNCTIONS AND FEATURES OF
THE OSI PROPRIETARY SOFTWARE OR RESTRICTS THE LICENSEE'S USE OF THE OSI
PROPRIETARY SOFTWARE.
"PRIORITY C ERROR" MEANS AN ERROR WHICH IS COSMETIC OR TRIVIAL IN NATURE AND
WHICH CAUSES ONLY A MINOR IMPACT ON THE LICENSEE'S USE OF THE OSI PROPRIETARY
SOFTWARE.
"SUPPORT SERVICES" MEANS OSI SUPPORT SERVICES AS DESCRIBED IN SECTION 2.
"TELEPHONE SUPPORT" MEANS TECHNICAL SUPPORT TELEPHONE ASSISTANCE PROVIDED BY OSI
TO THE TECHNICAL SUPPORT CONTACT CONCERNING PROBLEM RESOLUTION AND THE USE OF
THE THEN CURRENT RELEASE OF LICENSED SOFTWARE AND THE PREVIOUS SEQUENTIAL
RELEASE. CALLS WILL BE ACCEPTED DURING OSI'S NORMAL BUSINESS HOURS, EXCEPT THAT
IN THE EVENT OF AN EMERGENCY, OSI WILL ACCEPT ALL CALLS MADE TO THE EMERGENCY
OFF-HOURS TELEPHONE NUMBERS WHICH OSI SHALL SUPPLY TO LICENSEE AND ALWAYS
PROMPTLY UPDATE AS THEY CHANGE, 24 HOURS PER DAY, 7 DAYS PER WEEK, 365 DAYS PER
YEAR.
"WORK AROUND" MEANS A MODIFICATION OF THE LICENSED SOFTWARE AND/OR A CHANGE IN
THE PROCEDURES FOLLOWED OR DATA SUPPLIED BY LICENSEE TO AVOID AN ERROR WITHOUT
SUBSTANTIALLY IMPAIRING LICENSEE'S USE OF LICENSED SOFTWARE.
THESE TERMS AND CONDITIONS CONSTITUTE A SERVICE CONTRACT AND NOT A PRODUCT
WARRANTY. THE LICENSED SOFTWARE AND ALL MATERIALS RELATED TO THE LICENSED
SOFTWARE ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE END-USER
SOFTWARE LICENSE. THIS ATTACHMENT IS AN ADDITIONAL PART OF THE AGREEMENT AND
DOES NOT CHANGE OR SUPERSEDE ANY TERM OF THE AGREEMENT EXCEPT TO THE EXTENT
UNAMBIGUOUSLY CONTRARY THERETO.
ADDITIONAL ATTACHMENTS FOLLOW
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ESCROW TERMS AND CONDITIONS
THIS ATTACHMENT RELATES TO AND IS INCORPORATED INTO THE BELOW-REFERENCED
AGREEMENT. CAPITALIZED TERMS NOT DEFINED HEREIN HAVE THE SAME MEANING AS DEFINED
ELSEWHERE IN THE AGREEMENT.
1. SOURCE CODE AGREEMENT
UPON EXECUTION OF THIS AGREEMENT, OSI AGREES TO IMMEDIATELY PLACE AND THEREAFTER
MAINTAIN THE SOURCE CODE (AS HEREINAFTER DEFINED) FROM THE MOST CURRENT RELEASE
OF THE PROPRIETARY SOFTWARE AND THE LAST RELEASE OF THE PROPRIETARY SOFTWARE IN
ESCROW WITH AN AGENT PURSUANT TO AN ESCROW AGREEMENT REASONABLY ACCEPTABLE TO
LICENSEE, WHICH OSI SHALL PROVIDE TO LICENSEE FOR REVIEW PRIOR TO EXECUTION. THE
SOURCE CODE SHALL BE UPDATED PER EACH NEW RELEASE. THE AGREEMENT BETWEEN THE
ESCROW AGENT AND OSI SHALL PROVIDE THAT IN THE EVENT OSI CEASES TO DO BUSINESS
IN THE NORMAL COURSE, DISCONTINUES OFFERING TO PROVIDE SUPPORT, IS IN DEFAULT OF
ITS OBLIGATIONS AS SET OUT IN THE SUPPORT SERVICES TERMS AND CONDITIONS, OR IN
THE EVENT OF INSOLVENCY, BANKRUPTCY, OR ASSIGNMENT FOR THE BENEFITS OF CREDITORS
OF OSI, LICENSEE SHALL HAVE THE RIGHT TO SECURE THE SOURCE CODE FROM SAID ESCROW
AGENT.
THE ESCROW AGENT SHALL BE AUTHORIZED TO RELEASE THE SOURCE CODE TO LICENSEE IN
ACCORDANCE WITH THESE ESCROW TERMS AND CONDITIONS. LICENSEE IS (AND SAID SOURCE
CODE AGREEMENT BETWEEN OSI AND ESCROW AGENT SHALL STATE THAT LICENSEE IS) AN
INTENDED THIRD PARTY BENEFICIARY AND HAS A DIRECT RIGHT OF ACTION TO ENFORCE THE
PROVISIONS OF SAID SOURCE CODE AGREEMENT BETWEEN OSI AND ESCROW AGENT.
2. LICENSE
IN THE EVENT THAT LICENSEE OBTAINS THE SOURCE CODE PURSUANT TO THESE ESCROW
TERMS AND CONDITIONS, THE SOURCE CODE SHALL BE DEEMED TO BE LICENSED TO THE SAME
EXTENT AS THE PROPRIETARY SOFTWARE IS LICENSED TO LICENSEE PURSUANT TO THE END
USER SOFTWARE LICENSE, EXCEPT THAT
a) LICENSEE SHALL USE THE SOURCE CODE SOLELY TO MAINTAIN AND SUPPORT, AND
FOR THESE PURPOSES TO MODIFY, UPDATE AND UPGRADE THE PROPRIETARY
SOFTWARE AND
b) LICENSEE SHALL HAVE THE RIGHT TO MAKE SUCH COPIES OF THE LICENSED
SOFTWARE AND DOCUMENTATION AS ARE REASONABLY NECESSARY FOR LICENSEE'S
USE OF THE LICENSED SOFTWARE AND DOCUMENTATION AS CONTEMPLATED
HEREUNDER AND FOR BACK UP AND ARCHIVAL PURPOSES. IN EXERCISING THIS
RIGHT, LICENSEE SHALL REPRODUCE AND INCLUDE THE COPYRIGHT NOTICE AND
ANY OTHER NOTICES THAT APPEAR ON THE ORIGINAL LICENSED SOFTWARE AND
DOCUMENTATION ON ANY COPIES AND ANY MEDIA THEREFOR.
3. DEFINITIONS
FOR PURPOSES OF THE AGREEMENT, "SOURCE CODE" SHALL MEAN BOTH MACHINE READABLE
AND HUMAN READABLE COPIES OF THE PROPRIETARY SOFTWARE CONSISTING OF INSTRUCTIONS
TO BE EXECUTED UPON A COMPUTER IN THE LANGUAGE USED BY ITS PROGRAMMERS (I.E.
PRIOR TO COMPILATION OR ASSEMBLY) IN A FORM IN WHICH THE PROGRAM LOGIC OF THE
PROPRIETARY SOFTWARE IS DEDUCIBLE BY A HUMAN BEING, FULLY COMMENTED, AND
INCLUDING ALL AVAILABLE RELATED FLOW DIAGRAMS AND ALL OTHER DOCUMENTATION AND
MANUALS WHICH WOULD ALLOW PERSONS WHO ARE EXPERIENCED COMPUTER PROGRAMMERS BUT
WHO ARE UNFAMILIAR WITH THE PROPRIETARY SOFTWARE TO PROPERLY EFFECT
MODIFICATIONS AND SUPPORT FOR THE PROPRIETARY SOFTWARE.
ADDITIONAL ATTACHMENTS TO FOLLOW
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CONVERSION ACCEPTANCE AGREEMENT
THIS AGREEMENT BETWEEN OSI AND LICENSEE SERVES TO DOCUMENT THE LICENSEE'S FINAL
ACCEPTANCE OF THE CONVERSION EFFORT. ANY PERSON REPRESENTING THE LICENSEE IN
THIS MATTER MUST BE VESTED WITH THE AUTHORITY TO DO SO. THIS AGREEMENT SIGNIFIES
THAT THE LICENSEE HAS REVIEWED THE FUNCTIONALITY OF THE LICENSEE'S INSTALLATION
AND IS SATISFIED THAT:
_THE LICENSED SOFTWARE IS INSTALLED CORRECTLY AND THAT ALL FUNCTIONALITY
PROMISED IS PRESENT AND AVAILABLE.
_ALL DEPARTMENTS WITHIN LICENSEE HAVE DEMONSTRATED THEIR ABILITY TO FUNCTION
SATISFACTORILY WITH THE SYSTEM.
_ALL COMMITMENTS MADE BY OSI HAVE BEEN FULFILLED AND NO ISSUES REMAIN. BY
SIGNING THIS DOCUMENT, THE LICENSEE ACKNOWLEDGES SUCCESSFUL INSTALLATION OF THE
LICENSED SOFTWARE AND AGREES TO RELEASE ANY MONEYS THAT ARE CURRENTLY UNPAID OR
HELD IN ESCROW.
LICENSEE: _____________________________________________________________________
SIGNATURE: _________________________________________________ DATE: ____________
NAME: ________________________________________________ TITLE: _________________
LICENSOR: OPEN SOLUTIONS INC.
----------------------------------------------------------------------
SIGNATURE: _________________________________________________ DATE: ____________
NAME: ________________________________________________ TITLE: _________________
ADDITIONAL ATTACHMENTS FOLLOW
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