EXHIBIT 10.10
PRIORITY CUSTOMER SUPPORT PLAN AGREEMENT
This Priority Customer Support Plan Agreement ("Agreement") is made and entered
into this 15th day of January, 1996 by and between Dynatek, Inc. ("Dynatek"), a
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Michigan corporation with principal offices at 00000 X. Xxxxxx Xxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, and Virtual Mortgage Network, Inc. (hereinafter
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"Customer"), a California corporation with principal offices at 4590 MacArthur
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Xxxxxxxxx, Xxxxx 000 Xxxxxxx Xxxxx XX 00000.
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WITNESSETH:
WHEREAS, Dynatek ("Licensor") and Customer entered into that certain End-User
Agreement dated January 15, 1996 (the "License Agreement") under which Customer
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obtained a non-transferable exclusive license to use certain computer software
in Object code form and related user documentation (the "Licensed Program")
within the terms and conditions listed below;
WHEREAS, Dynatek as the author of the Licensed Program has the source code and
other support documentation for the Licensed Program and desires to make and
offer to Customer the maintenance modifications, enhancements, and new releases
provided for herein; and
WHEREAS, Dynatek desires to offer Customer certain services with respect to the
Licensed Program on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises hereof, and the mutual
obligations herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1
DEFINITIONS
For the purposes of this Agreement, the following definitions shall apply to the
respective capitalized terms:
1.1 "LICENSED PROGRAM." The computer software described in the Exhibit hereto,
including any programming extracts from such software, derivative works
of the Licensed Program or collective works constituting such software
(such as subsequent Releases) to the extent offered to Customer under this
Agreement or the Licensed Agreement.
1.2 "AGREEMENT TERM." An initial period of one (1) year, commencing on the
first day following the date of this agreement. Thereafter, the Agreement
Term shall automatically renew for successive periods of one year each
unless and until terminated pursuant to Section 6 hereof. In no event,
however, shall the Agreement Term extend beyond the prescribed term of the
License Agreement.
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1.3 "ERROR." Any failure of the Licensed Program to conform in all material
respects to the functional specifications for the Licensed Program
published from time to time by Licensor, the current version of which has
been delivered to the Customer. However, any nonconformity resulting from
Customer's misuse or improper use of the Licensed Program or combining or
merging the Licensed Program with any hardware or software not approved by
Dynatek, or not authorized to be so combined or merged by Dynatek, shall
not be considered an Error. Dynatek shall provide written documentation
describing the recommended and approved hardware and software operating
environment.
1.4 "ERROR CORRECTION." Either a software modification or addition that, when
made or added to the Licensed Program, establishes material conformity of
the Licensed Program to the functional specifications, or a procedure or
routine that, when observed in the regular operation of the Licensed
Program, eliminates the practical adverse effect on Customer of such
nonconformity.
1.5 "ENHANCEMENT." Any modification or addition that, when made or added to the
Licensed Program, materially changes its utility, efficiency, functional
capability, or application, but that does not constitute solely an Error
Correction. Enhancements may be designated by Dynatek as minor or major,
depending on Dynatek's assessment of their value and of the function added
to the preexisting Licensed Program.
1.6 "NORMAL WORKING HOURS." The hours between 8 A.M. and 6 P.M. Eastern Time on
the days Monday through Friday, excluding regularly scheduled holidays of
Dynatek.
1.7 "RELEASES." New versions of the Licensed Program, which new versions may
include both Error Corrections and Enhancements.
SECTION 2
SCOPE OF SERVICES
2.1 During the Agreement Term, Dynatek shall render the following services in
support of the Licensed Program, during Normal Working Hours, subject to
the compensation fixed for each type of service in Dynatek's rate schedule
set forth in the Exhibit hereto.
a. Dynatek shall maintain a telephone hot-line that allows Customer to
report system problems and seek assistance in use of the Licensed Program.
The hot-line shall be in operation during Normal Working Hours. An
emergency hot-line shall be provided to report critical system problems
outside of Normal Working Hours. A response shall be given to all hot-line
requests within two (2) working hours. Problem reporting procedures are
listed in the Exhibit hereto.
b. Dynatek shall maintain a trained staff capable of rendering the
services set forth in this Agreement.
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C. Dynatek shall, as required by standard USA mortgage industry
regulations and standards, make maintenance adjustments and modifications
to the Licensed Program and deliver them to the Customer in the form of an
update. It shall be the responsibility of the Customer to verify the
accuracy of the update and to distribute it to the Customer's end users.
Dynatek shall provide reasonable assistance to help Customer install and
operate each new update. Customer, as an active mortgage originator, shall
assist Dynatek in the interpretation of industry regulations and keep
Dynatek informed of new and upcoming changes that will affect the Licensed
Program.
d. Dynatek shall be responsible for using all reasonable diligence in
correcting verifiable and reproducible Errors when reported to Dynatek in
accordance with Dynatek's standard reporting procedures. These procedures
are listed in the Exhibit hereto. Dynatek shall, within two (2) hours of
verifying that such an Error is present, initiate work in a diligent
manner toward development of an Error Correction. Following completion of
the Error Correction, Dynatek shall provide the Error Correction through a
"temporary fix" consisting of sufficient programming and operating
instructions to implement the Error Correction, and Dynatek shall include
the Error Correction in all subsequent Releases of the Licensed Program.
Dynatek shall not be responsible for correcting Errors in any version of
the Licensed Program other than the most recent Version of the Licensed
Program, provided that Dynatek shall continue to support prior Versions
superseded by recent Versions for a reasonable period sufficient to allow
Customer to implement the newest Versions not to exceed ninety (90) days.
e. Dynatek shall, from time to time, issue new Releases of the Licensed
Program to its customers generally, containing Error Corrections and minor
Enhancements. Dynatek shall provide Customer with one copy of each new
Release, without additional charge. Dynatek shall provide reasonable
assistance to help Customer install and operate each new Release.
f. Dynatek will provide an automated computer dial-up bulletin board
system (BBS) and a remote computer diagnostic support facility. The BBS
will serve to provide 24-hour access to Dynatek support files which include
updates, fixes, tips, minor enhancements, forms (laser documents), and
other critical support items. The remote diagnostic facility is a telephone
modem connection that attaches the Dynatek support group computer to the
Customer's computer. This allows the support personnel to view the actual
Customer programs and data causing the reported error. The error detection
and resolution can be performed immediately on-line. Remote diagnostic
assistance is available during normal working hours.
g. Dynatek may provide assistance at Customer's facility for any of the
support services included in this Agreement. This on-site support must be
pre-authorized by the Customer, and shall be subject to the charges set
forth in the Exhibit hereto. If Customer requests on-site assistance for
critical operational problem resolution, Dynatek will make every reasonable
effort to have a person on-site within forty eight (48) hours.
h. Dynatek will perform up to thirty (30) hours per year of minor custom
programming to the Licensed Program. This programming will be limited to
modifying the current release of the installed Licensed Program. Included
in this programming will be interface programming to third party software
such as loan servicing, credit reporting agencies and appraisal companies.
Other examples of minor custom programming are projects that are
adjustments to current features in the Licensed Program such as tailoring
reports or fine tuning a communication procedure.
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i. Dynatek will provide major custom project work with special
consideration given to pricing and scheduling. Requests will be given a
higher priority over projects from a customer who does not have a preferred
maintenance plan. Pricing will be based on a most favored customer basis.
j. Dynatek publishes a newsletter designed to keep its customers generally
informed about the use and operation of the Licensed Program, features on
new Releases and Enhancements, and current additional support offerings.
Dynatek shall provide Customer with one copy of the newsletter without
charge and make additional copies available for a reasonable charge.
k. Dynatek shall consider and evaluate the development of Enhancements for
the specific use of Customer and shall respond to Customer's requests for
additional services pertaining to the Licensed Program (including, without
limitation, data conversion, operating environment, new feature
programming, etc.), provided that such projects, if agreed to be provided,
shall be subject to supplemental charges mutually agreed to by Dynatek and
Customer.
SECTION 3
FEES AND CHARGES
3.1 Customer shall pay Dynatek its fees and charges based on the rate schedule
set forth in the Exhibit hereto. Dynatek reserves the right to change its
rate schedule from time to time, provided that no such change will be
effective until at least thirty (30) days after Dynatek has given Customer
written notice of such change. Such written notice may not occur within an
Agreement Term (one year). The Agreement fee shall not be increased more
than fifteen (15) percent of the previous year fee, provided that no
significant changes have occurred in the Licensed Program covered by this
Agreement.
3.2 Customer shall reimburse Dynatek for all travel expenses (i.e.
transportation, lodging, and meals) incurred by Dynatek in rendering
services to Customer. Dynatek shall conform to Customer's standard and
reasonable expense and reimbursement policy as amended from time to time.
All travel must be approved by Customer.
3.3 Dynatek shall invoice Customer at the beginning of each calendar month for
all fees and charges accrued, and all reimbursable expenses incurred,
during the previous month, and Customer shall pay the invoiced amount
immediately upon receipt of such invoice. Any amount not paid within forty
five (45) days after the invoice date shall bear interest at the lesser of
1.5 percent per month or the highest rate allowed by applicable law.
3.4 Customer shall be responsible for procuring, installing, and maintaining
all equipment, telephone lines, communications interfaces, and other
hardware (other than the hardware constituting the program control center
maintained at Dynatek's facilities) necessary to operate the Licensed
Software and to obtain from Dynatek the services called for by this
Agreement.
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SECTION 4
PROPRIETARY RIGHTS
4.1 To the extent that Dynatek may provide Customer with any Error Corrections
or Enhancements or any other software, including any new software programs
or components, or any compilations or derivative works prepared by Dynatek
(collectively, "Licensed Programs"), Customer may (i) install the Licensed
Programs, in the most current form provided by Dynatek, in Customer's own
facility; (2) use such software in connection with the Licensed Programs,
and in a manner consistent with the requirements of the License Agreement,
for purposes of serving Customer's internal business needs; and (3) make
copies of the Licensed Programs in machine-readable form for nonproductive
backup purposes only. Notwithstanding Section 6 hereof, Customer's rights
under this Section 4.1 shall remain in effect for so long as Customer is
authorized to use the Licensed Programs. Upon termination of such License
Agreement, Customer shall return or destroy the Licensed Programs, and
returning the Licensed Programs in the manner required by the License
Agreement shall be sufficient for such purpose.
4.2 The Licensed Programs are and shall remain the sole property of Dynatek,
regardless of whether Customer, its employees, or contractors may have
contributed to the conception of such work, joined in the effort of its
development, or paid Dynatek for the use of the work product. Customer
shall from time to time take any further action and execute and deliver any
further instrument, including documents of assignment or acknowledgment,
that Dynatek may reasonably request in order to establish and perfect its
exclusive ownership rights in such works. Customer shall not assert any
right, title, or interest in such works, except for the non-exclusive right
of use granted to Customer at the time of its delivery or on-site
development.
SECTION 5
DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
5.1 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, DYNATEK EXPRESSLY
DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE LICENSED PROGRAM OR THE
SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING
(WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
5.2 In no event shall Dynatek's cumulative liability for any claim arising in
connection with its Agreement exceed the lesser of the total fees and
charges paid to Dynatek by Customer within the last twelve (12) months or
the sum or $25,000.00. In no event shall Dynatek be liable for any
indirect, consequential, special, exemplary, or incidental damages of
whatever kind and however caused, even if Dynatek knew or should have known
of the possibility of such damages.
5.3 No action, whether based on contract, strict liability, or tort, including
any action based on negligence, arising out of the performance of services
under this Agreement, may be brought by either party more than five (5)
years after such cause of action accrued, except that an action for
nonpayment may be brought within two (2) years of the date of last payment.
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SECTION 6
TERMINATION
6.1 This Agreement may be terminated as follows:
a. This Agreement shall be immediately terminated upon the termination of
the License Agreement; or
b. This Agreement may be terminated by either party upon the expiration of
the then-current term of this Agreement, provided that at least sixty (60)
days' prior written notice is given to the other party; or
c. This Agreement may be terminated by either party upon thirty (30) days'
prior written notice if the other party has materially breached the
provisions of this Agreement and has not cured such breach within such
notice period.
6.2 Following termination of this Agreement, Dynatek shall immediately invoice
Customer for all accrued fees and charges and all reimbursable expenses,
and Customer shall pay the invoiced amount immediately upon receipt of such
invoice. Customer may continue to use any work supplied to Customer by
Dynatek for the remaining term of the License Agreement. Any amount not
paid within thirty (30) days after the invoice date shall bear interest at
the lesser of 1.5 percent per month or the highest rate allowed by
applicable law.
SECTION 7
MISCELLANEOUS
7.1 Each party acknowledges that it has read this Agreement, understands it,
and agrees to be bound by its terms. The parties further agree that this is
the complete and exclusive statement of the agreement of the parties with
respect to the subject matter hereof. This Agreement may not be modified
except by a written instrument duly executed by the parties hereto.
7.2 This Agreement and the parties' obligations hereunder shall be governed,
construed, and enforced in accordance with the laws of the State of
Michigan.
7.3 In the event that any provision of this Agreement is held invalid, illegal,
or unenforceable, the remaining provisions shall be enforced to the maximum
extent permitted by applicable law.
7.4 Neither party may assign its rights or duties under this Agreement without
the prior written consent of the other party, except to a successor of all
or substantially all of it business and properties.
7.5 The waiver by either party of any term or condition of this Agreement shall
not be deemed to constitute a continuing waiver thereof nor of any further
or additional right that such party may hold under this Agreement.
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IN WITNESS WHEREOF, the parties have ceased this Agreement to be executed by
their duly authorized representatives as set forth below.
Dynatek, Inc. End User: Virtual Mortgage Network, Inc.
00000 X. Xxxxxx Xxxx Xxxxx 0000 XxxXxxxxx Xxxxxxxxx
Xxxxx 000 Xxxxx 000
Xxxxxxx XX 00000 Xxxxxxx Xxxxx XX 00000
Signature: /s/ XXXX X. XXXXXXXX Signature: /s/ XXXXXXX X. XXXXXX
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Name: Xxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxx
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Title: President Title: CEO
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Date: 4/24/96 Date: 5/7/96
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EXHIBIT
This Exhibit is attached and made a part of the Preferred Customer Support
Plan Agreement dated January 15, 1996.
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1. LICENSED PROGRAM. Software as itemized in the Software License Agreement;
2. RATE SCHEDULE.
a. Agreement Fee - $25,000.00 per one year term./Payable in equal
monthly installments
b. Hourly Rates -
Programming $ 125.00
Forms coding 65.00
c. On-site Support -
Customer Request $650/day in the USA
3. EXPENSES. Actual and reasonable expenses incurred by Dynatek personnel
in the course of delivering the services contained in this Agreement.
4. TRAINING CLASS TUITION.
a. Daily Fee - $1,000 per student
5. ERROR REPORTING PROCEDURES.
a. Non-critical Errors.
1. Customer provides written description of error using
Dynatek problem reporting form. Form is faxed or mailed
to Dynatek.
2. Dynatek receives error report and logs it into automated
support call tracking system. Call is classified as
"Normal Priority".
3. Next available support person is assigned to call.
4. Error is resolved and correction is sent to Customer via
diskette or BBS.
5. Satisfactory resolution of problem is recorded.
b. Critical Errors.
1. Customer provides written description of error using
Dynatek problem reporting form. Form is faxed or
communicated verbally to Dynatek support staff.
2. Dynatek receives error report and logs it into automated
support call tracking system. Call is classified as
"High Priority".
3. Support person is immediately assigned to call.
4. Management is alerted to call with "High Priority"
status.
5. Error is resolved and correction is sent to Customer via
BBS or remote diagnostic facility.
6. Satisfactory resolution of problem is recorded.
c. Emergency Off-hours
Twenty-four hour voice beeper answering service will be
provided. This service is used with Customer's support
supervisor authority to avoid unauthorized access. The voice
beeper service is only available to Priority Support
customers.
Dynatek, Inc. End User: Virtual Mortgage Network, Inc.
00000 X. Xxxxxx Xxxx Xxxxx 0000 XxxXxxxxx Xxxxxxxxx
Xxxxx 000 Xxxxx 000
Xxxxxxx XX 00000 Xxxxxxx Xxxxx, XX 00000
Signature: /s/ XXXX X. XXXXXXXX Signature: /s/ XXXXXXX X. XXXXXX
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Name: XXXX X. XXXXXXXX Name: XXXXXXX X. XXXXXX
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Title: President Title: CEO
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Date: 4/24/96 Date: 5/7/96
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