Exhibit 10.36
AURUM TECHNOLOGY INC.
INTERNET MASTER SERVICES AGREEMENT
As of the date set forth below (the "Effective Date"), Aurum Technology
Inc., a Delaware corporation ("Aurum"), and the customer whose name appears
below ("Customer") hereby enter into this Internet Master Services Agreement
consisting of the Standard Terms and Conditions and the Schedules marked and
initialed below, which are attached hereto and incorporated herein for all
purposes.
Unless otherwise specifically provided otherwise in this Agreement or a
Schedule, AURUM or its subcontractors will be the exclusive provider to
Customer, and Customer agrees to exclusively obtain from AURUM, the Authorized
Services described in the Schedules marked below, which Schedules are attached
hereto and incorporated herein by reference. The Schedules marked below set
forth the specific terms and conditions applicable to the Authorized Services.
Place an "X" in the
appropriate box(es) below
-------------------------
Schedule A - Aurum Personal eBanking Services |X|
Schedule B - Aurum Business eBanking Services |X|
Schedule C - Xxxx Payment Services |X|
|_| Schedule D - Internet Services: Select Package
|X| Standard (25 Pages)
|_| Premium (50 Pages)
|_| Custom
|_| Migrate Existing Web Site to Aurum
Optional (Choose one)
---------------------
SSL Encryption Certificate (1st Year)
GEO Trust |_|
VeriSign |_|
IN WITNESS WHEREOF, the parties have duly executed this Agreement by the
duly authorized signatures below as of June 11, 2003 (the "Effective Date").
CUSTOMER: AURUM:
The Town Bank of Westfield Aurum Technology, Inc.
/s/ Xxxxxx X. Xxxxxx, Xx. /s/ Xxxxxxx Xxxxxxx
---------------------------- ----------------------------
[Authorized Signature] [Authorized Signature]
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxxxxx Xxxxxxx
------------------------------
Title: President & CEO Title: Senior Vice President Electronic
------------------------------ Business
Date: June 11, 2003 Date: 7/22/03
------------------------------ ------------------------------
ADDRESS: ADDRESS:
000 Xxxxx Xxxxxx 0000 X. Xxxxx Xxxxxxx
------------------------------ Suite 000
Xxxxxxxxx, Xxx Xxxxxx Xxxxx, Xxxxx 00000-0000
------------------------------ Attn: Vice President of eBusiness
07090
------------------------------
CONTACT INFORMATION: CONTACT INFORMATION:
Telephone: 000-000-0000 Telephone: (000) 000-0000
Facsimile: 000-000-0000 Facsimile: (000) 000-0000
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AURUM INTERNET MASTER SERVICES AGREEMENT
STANDARD TERMS AND CONDITIONS
As of the Effective Date, Aurum and Customer hereby enter into this Internet
Master Services Agreement consisting of these Standard Terms and Conditions and
the Schedules marked and initialed on the signature page of this Agreement,
which are attached hereto and incorporated herein for all purposes.
WHEREAS, Aurum provides Internet Services to financial institutions; and
WHEREAS, Customer desires to purchase certain Internet Services from
Aurum.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Aurum and Customer agree as
follows:
ARTICLE I - SERVICES
1.1 Authorized Services. During the Term, Aurum agrees to provide to Customer,
and Customer agrees to accept from Aurum, the Authorized Services, subject
to the terms and conditions set forth herein. Customer agrees that Aurum
shall be the sole and exclusive provider of the services that are the
subject matter of this Agreement for the Customer. For purposes of the
foregoing, the term "Customer" shall include Customer's affiliates.
1.2 Additional Services. If Customer requests Aurum to perform any service
that is not an Authorized Service, then Aurum may provide such service as
an "Additional Service".
1.3 Software Access License. During the Term and subject to the limitations
set forth herein, Aurum grants to Customer a limited, non-exclusive, and
non-assignable license to access the Software located on Aurum's Server
for the purpose of receiving the Authorized Services and using the "Aurum
System" to provide banking functionality and other related services to the
End User Customers. Aurum reserves all rights not expressly granted
herein. Without limiting the foregoing, Customer has no right to possess
the Software or any copies thereof in any form.
1.4 Aurum Xxxx License. During the Term and subject to the limitations set
forth herein, Aurum grants to Customer a limited, non-exclusive, and
non-assignable license to use Aurum's service xxxx and trademark solely
for the purpose of describing the Authorized Services and the Aurum System
to the actual and potential End User Customers and for no other purpose.
Aurum reserves all rights not expressly granted herein.
1.5 Customer Xxxx License. During the Term and subject to the limitations set
forth herein, Customer grants to Aurum a limited, non-exclusive, and
non-assignable license to use Customer's service marks and trademarks
solely for the purpose of performing the Authorized Services and for no
other purpose. Customer reserves all rights not expressly granted herein.
1.6 Regulatory Compliance. Customer shall be responsible for (i) compliance
with all state and federal laws and regulations governing banks and other
financial institutions; (ii) any disclosure to its End User Customers with
respect to the Authorized Services and each Customer product or service
made available through the Aurum System ("Customer Product/Service");
(iii) the terms and conditions of any Customer Product/Service; (iv) the
terms, conditions, and any limitations on which any Customer
Product/Service may be accessed, utilized or transactions originated by
any End User Customer; (v) determining the authority of any person
accessing a Customer Product/Service; and (vi) preparing, maintaining, and
monitoring compliance with verifiable documentation with respect to the
foregoing.
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Customer acknowledges and agrees that Customer shall not rely upon Aurum
for advice regarding compliance with governmental regulations. Customer
must independently verify its compliance with such regulations through its
own legal counsel. Aurum shall use commercially reasonable efforts, during
the Term of this Agreement, to be in substantive compliance with federal
rules and regulations as they relate to vendors of Authorized Services. In
the event that there is a significant change in the manner by which the
Authorized Services can be furnished hereunder, as a result of a
regulatory compliance requirement, Aurum and Customer shall negotiate in
good faith to resolve the compliance issue. If Aurum determines that
compliance is cost prohibitive, Aurum may elect to terminate the Agreement
without penalty, by furnishing Customer with thirty (30) days prior
written notice. Regulatory disclosure requirements are the responsibility
of Customer.
If Customer believes that any modifications to the Aurum System are
required under any laws, rules, or regulations, Customer will promptly so
inform Aurum. Aurum will perform any modifications to the Aurum System or
recommend changes to operating procedures of Customer that Aurum
determines are necessary or desirable; provided, that if any such changes
or modifications result in a significant increase in Aurum's cost of
providing Authorized Services, Aurum will be entitled to increase the
charges under this Agreement by an amount that reflects a pro rata
allocation of Aurum's increased cost among the applicable Aurum customers.
New or enhanced Aurum System features, functions, reports, or other
services that may result from such modifications or recommendations may be
provided as an Additional Service. Notwithstanding the foregoing, Customer
acknowledges that the Aurum System may, from time to time, consist in part
of System(s) licensed by Aurum from third-parry vendor(s) and, therefore,
Aurum shall have no duty or responsibility to modify any such third-party
System under this Section, except to the extent that the vendor thereof
has such a duty or responsibility to modify such System pursuant to the
applicable license agreement between Aurum and such vendor.
1.7 Audits. Aurum will provide auditors and inspectors that Customer
designates in writing with reasonable access to the Data Center during
business hours for the limited purpose of performing audits or inspections
of Customer's business. Aurum will provide to such auditors and inspectors
assistance as Aurum deems reasonable. Customer shall bear all expenses
associated with such audit or inspection and shall also compensate Aurum
for any Additional Services provided in connection with the audit or
inspection. Customer shall insure that any audit or inspection requested
by Customer shall be conducted without undue disruption to Aurum's
business or operations. Aurum will not be required 1) to provide access to
data of other Aurum customers, or 2) permit access to the Data Center
during such times as Aurum deems that such access would be likely to
create undue disruption to its operations (e.g., when other auditors or
inspectors are present).
1.8 Aurum System Changes. Aurum shall have the right to modify the Aurum
System including, without limitation, to (i) make changes in the method of
access to or delivery of the Aurum System including, without limitation,
interface procedures ("Interface Changes"), (ii) make modifications to the
Aurum System which are provided to Customer at no additional cost ("Aurum
System Enhancements"). The identification in this Agreement of specific
brands or names of third-party providers is for reference only. Customer
acknowledges and agrees that it will not rely on such brand names or
third-party providers as a promise by Aurum to use any particular brand or
third-party provider. Aurum reserves the right to substitute any brand or
third-party provider of the Authorized Services, at its sole discretion,
at any time with or without notice, provided that the quality of the
Authorized Services is not materially diminished by such substitution.
1.9 Correction of Errors. Aurum will correct any errors in customer files that
result in errors in reports or other output where such errors (i) are due
solely to either malfunctions of Aurum's equipment or the Aurum Systems or
errors of Aurum's operators, programmers, or other personnel, and (ii) are
called to Aurum's attention within the time frames specified below. Aurum
will, to the extent reasonably practicable, correct any other errors as an
Additional Service. Customer will balance reports to verify master file
information and will inspect and review all reports and other output
(whether printed or electronically transmitted) created from data provided
by Customer to Aurum. Customer will reject all incorrect reports or output
(i) within two Business Days after receipt of daily reports or output,
(ii) within
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five Business Days after receipt of annual, quarterly, or monthly reports
or output, and (iii) within three Business Days after receipt of all other
reports or output. This Section 1.09 sets forth Customer's exclusive
remedies for errors in reports or other output provided by Aurum under
this Agreement.
1.10 Aurum as Customer's Agent. Customer acknowledges and agrees that Aurum's
implementation and provision of Authorized Services hereunder necessitates
certain agreements with third parties (such as service agreements and
licensing agreements for software or hardware used in the Aurum Personal
eBanking Services). Customer hereby appoints Aurum as Customer's agent (a)
at Customer's request, to execute or enter into, on Customer's behalf,
licensing or other agreements reasonably for Aurum's implementation and
provision of the Authorized Services hereunder, and (b) to install any
hardware or software reasonably required for Aurum's implementation and
provision of the Authorized Services hereunder.
1.11 Core Processing. During the Term, Customer is required (i) to maintain
Aurum as its core data processing vendor or (ii) to utilize Aurum provided
systems for its core data processing. Customer's failure to do so will be
considered a breach of this Agreement by Customer.
ARTICLE II - TERM
2.1 Term. This Agreement will begin on the Effective Date and, unless
terminated earlier pursuant to the terms of this Agreement, will continue
for a period of five (5) years from the Operational Date (the "Initial
Term"). Thereafter, this Agreement will automatically renew for successive
terms of two (2) years each (the "Renewal Terms") unless either party
gives the other party written notice at least six (6) months prior to the
expiration date of the Initial Term or the Renewal Term then in effect
that the Agreement will not be renewed beyond such Initial Term or Renewal
Term. Notwithstanding the termination of this Agreement for any reason,
each Schedule entered into prior to the effective date of such termination
will remain in full force and effect in accordance with the provisions
thereof, including each of the provisions of this Agreement incorporated
by reference into such Schedule.
ARTICLE III - PAYMENTS TO AURUM
3.1. Fees. Customer agrees to pay the following Fees:
-----
(a) Authorized Services. Aurum's Fees for the Authorized Services are
set forth in the Schedule describing such Authorized Service.
(b) Additional Services. Aurum's Fees for Additional Services are
Aurum's then standard charges for such services, or, if Aurum then
has no standard charges for such services, upon whatever other basis
that the parties agree.
3.2. Additional Charges. In addition to the Fees, Customer will also pay Aurum
the following, if applicable:
(a) All costs incurred by Aurum in mailing reports, other output or
materials to Customer, its customers, or third parties.
(b) All reasonable actual, out-of-pocket costs and expenses, including,
without limitation, travel and travel-related expenses, which are
incurred by Aurum in providing Authorized or Additional Services
when incurred at Customer's request.
(c) Any other charges expressly provided in this Agreement.
(d) All taxes, however designated or levied, based upon any charges
under this Agreement, or upon this Agreement, the Aurum System or
the Authorized or Additional Services, or materials provided
hereunder, or their use, including without limitation state and
local privilege or excise taxes based on gross revenue, sales and
use taxes, and any taxes or amounts in lieu thereof paid or
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payable by Aurum in respect of the foregoing, exclusive, however, of
franchise taxes and taxes based on the net income of Aurum.
3.3. Time of Payment. All charges under this Agreement will be due and payable
within ten (10) days of invoice date. Any charges not paid within thirty
(30) days of invoice date will bear interest until paid at a rate equal to
the lesser of 1.5% per month or the maximum interest rate allowed by
applicable law.
3.4. Cost of Living Adjustment. Aurum may, with 60 days' prior written notice
to Customer, increase the fees and charges listed in a schedule for
recurring services once in each year of the initial or a renewal term
after the first year of such term; but Aurum may not in any year increase
them more than the percentage increase in the Employment Cost Index for
Total Compensation (not seasonally adjusted), Private Industry Workers,
White Collar Occupations Excluding Sales, June 1989=100, published monthly
by the Bureau of Labor Statistics, U.S. Department of Labor, for the
12-month period preceding the increase. In calculating the percentage
increase, Aurum will use the most recently available ECI, as of a date
that is no more than 30 and no less than 10 days prior to the date for the
required written notice, and the ECI that preceded it by 12 months. If the
ECI is no longer published or is replaced by another or an adjusted index,
Aurum may use a comparable index in calculating increases.
3.5. Service Level Credits. If Aurum fails to meet the Service Levels set forth
in the applicable Schedules, then Aurum will apply the applicable credits
against the Fees. Payment of the Service Level credits will be Customer's
sole and exclusive remedy for damages arising out of the failure of Aurum
to achieve those Service Levels for which such credits are paid.
ARTICLE IV - SYSTEMS, DATA,
CONFIDENTIALITY AND PRIVACY
4.1. Aurum Systems. All Aurum Systems are and will remain the exclusive
property of Aurum or licensors of such Aurum Systems, as applicable, and,
except as expressly provided in this Agreement, Customer will have no
ownership interest or other rights in any Aurum System. Customer
acknowledges that the Aurum Systems include Aurum proprietary information
and agrees to keep the Aurum Systems confidential at all times. Upon the
expiration or termination of this Agreement, Customer will return all
copies of all items relating to the Aurum Systems that are in the
possession of Customer and certify to Aurum in writing that Customer has
retained no material relating to the Aurum Systems.
4.2. Customer's Information. Information relating to Customer or End User
Customers contained in Customer's data files is the exclusive property of
Customer and Aurum will only be the custodian of that information. Aurum
agrees to hold in confidence all proprietary information of Customer and
End User Customers provided to Aurum in accordance with Section 4.3.
However, upon the request of any appropriate federal or state regulatory
authority with jurisdiction over Customer's business and after Aurum has,
when reasonably possible, notified Customer of such request, Aurum will
allow such authority access to all records and other information of
Customer and its customers in the possession of Aurum and provide as an
Additional Service any related assistance that is required. Promptly after
the termination or expiration of this Agreement and the payment to Aurum
of all sums due and owing, including without limitation any amounts due
under Sections 5.5 or 5.6, Aurum will, at Customer's request and expense,
return to Customer all of Customer's information, data, and files in
Aurum's then standard machine-readable format and media.
4.3. Confidentiality. Except as otherwise provided in this Agreement, Aurum and
Customer each agree that all information communicated to one by the other
or the other's affiliates, whether before or after the Effective Date,
will be received in strict confidence, will be used only for purposes of
this Agreement, and except for the requirements of Section 4.2 will not be
disclosed by the recipient party, its agents, subcontractors, or employees
without the prior written consent of the other party. Each party agrees to
take all reasonable precautions to prevent the disclosure to outside
parties of such information, including, without limitation, the terms of
this Agreement, except as required by legal, accounting, or regulatory
requirements beyond the reasonable control of the recipient party. If
Customer is required to disclose any proprietary information of Aurum in
accordance with any such legal, accounting, or regulatory requirements,
then Customer will
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promptly notify Aurum of such requirement and will cooperate with Aurum
(at Aurum's expense) in Aurum's efforts, if any, to avoid or limit such
disclosure (including, without limitation, obtaining an injunction or an
appropriate redaction of the proprietary information in question). The
provisions of this Section will survive the expiration or termination of
this Agreement for any reason.
4.4. Privacy. Notwithstanding any provision in this Agreement or the Schedules
to the contrary, Aurum agrees that (i) the data of Customer is owned by
Customer, (ii) Aurum will maintain the confidentiality of Customer's data
in accordance with Section 4.3 of this Agreement, (iii) Aurum will only
use Customer's data to provide the Authorized Services, and for no other
purpose without Customer's prior written consent, which consent may be
withheld for any reason, (iv) Aurum will safeguard the data in accordance
with Section 4.6 and (v) subject to Customer's payment of all charges due
to Aurum and to applicable regulatory requirements, Aurum will, at
Customer's request, either return or destroy Customer's data upon
termination or expiration of this Agreement.
4.5 Safeguarding Data Integrity. Aurum will make reasonable efforts to: (i)
ensure the security and confidentiality of End User Customer information;
(ii) protect against any anticipated threats or hazards to the security or
integrity of such information; and (iii) protect against unauthorized
access to or use of such information that could result in substantial harm
or inconvenience to any End User Customer. Aurum will provide additional
internal computer data integrity safeguards that Customer reasonably
requests as an Additional Service. Aurum will also employ and maintain
controlled access systems in the Data Center.
4.6 Security. During the Term, Aurum will employ commercially reasonable
system security measures. At Customer's request, Aurum will make available
to Customer a description of its methods and procedures to safeguard the
Aurum System and, as part of Aurum's Authorized Services, may provide
Customer and Customer Data Center with procedures, which Customer is
obligated to employ to help secure the integrity of the Aurum System and
Customer's data. Customer shall have no right, license or privilege to
conduct its own security or intrusion testing of the Aurum System without
the express written permission of Aurum. Aurum agrees to notify Customer
of a security breach of an End User Customer's account on the Aurum System
immediately or no later than 24 hours following discovery. Customer
understands and acknowledges that certain risks are inherent in the
transmission of information over the Internet. Customer chooses to use the
security measures, which may be provided by Aurum even though other
security procedures are available.
Customer shall inform Aurum prior to creating any connection to an
Internet Service Provider (ISP) or other computer services company if such
connection is made from any point on Customer's computer network that is
connected to Aurum. In the event that such a connection to the Internet is
to be made, Customer must first obtain the firewall and Internet security
policy document of Aurum. Customer hereby agrees to abide by the rules
contained in such document. This document shall be provided to Customer at
Customer's request. This document may be revised by Aurum from time to
time to keep current with technology and Customer shall be solely
responsible for ensuring its compliance with the most current
requirements.
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4.7 Contingency Planning. Each party's contingency planning activities will
comply with such of the following regulatory policies as may be applicable
to Customer's business, as the same may be amended or replaced from time
to time: (a) Federal Deposit Insurance Corporation, Financial Institution
Letter. FIL-68-97, dated July 14, 1997; (b) Federal Reserve System
Supervision and Regulation, Number SR 97-15, dated May 2, 1997; (c) Office
of the Comptroller of the Currency, OCC 97-23, dated May 16, 1997; (d)
Office of Thrift Supervision, CEO Ltr 72, dated July 23, 1997; and (e)
National Credit Union Administration, Letter to Credit Unions No. 97-CU-3,
dated April 7, 1997. If compliance with any amendments or replacements of
these policies would significantly increase Aurum's cost of providing
products or services, Aurum will be entitled to increase the fees and
charges under an agreement by an amount that reflects a pro rata
allocation of Aurum's increased cost among the Aurum customers affected by
the change.
4.8 Service Auditor's Report. Aurum will provide to Customer at Aurum's then
standard charge, one copy of Aurum's most recent service auditor's report,
performed pursuant to nationally recognized auditing standards for service
organizations, applicable to the services provided by Aurum to Customer.
ARTICLE V - TERMINATION AND
RELATED MATTERS
5.1. Mediation. If a dispute arises out of or relates to an agreement,
including but not limited to its formation or a breach of it, and if the
dispute cannot be settled through negotiation, the parties agree first to
try in good faith to settle the dispute by mediation conducted under the
Commercial Mediation Rules of the American Arbitration Association (except
for those changes specifically set forth in these terms and conditions),
or such other rules and procedures to which the parties and the mediator
may agree, before resorting to litigation or some other dispute resolution
procedure. Mediation will commence when a party sends a written request
for mediation of a dispute to the other party, and the parties will select
a single mediator to serve. The parties will each pay their own expenses
in connection with the mediation (including attorneys' fees and other
costs), and they will share equally in paying the mediator (including any
fees and other costs).
5.2. Termination for Non-Payment. If Customer defaults in the payment of any
charges or other amounts due under this Agreement and fails to cure such
default within ten (10) days after receiving written notice specifying
such default, then Aurum may, by giving Customer at least thirty (30) days
prior written notice thereof, terminate this Agreement or the applicable
Schedule as of a date specified in such notice.
5.3. Termination for Cause. If either party materially defaults in its
performance under this Agreement, except for non-payment of amounts due to
Aurum, and fails to either substantially cure such default within ninety
days after receiving written notice specifying the default or, for those
defaults which cannot reasonably be cured within ninety (90) days,
promptly commence curing such default and thereafter proceed with all due
diligence to substantially cure the default, then the party not in default
may, by giving the defaulting party at least thirty days prior written
notice thereof, terminate this Agreement or the applicable Schedule as of
a date specified in such notice.
5.4. Termination for Insolvency. If either party becomes or is declared
insolvent or bankrupt, is the subject of any proceedings relating to its
liquidation or insolvency or for the appointment of a receiver,
conservator, or similar officer, or makes an assignment for the benefit of
all or substantially all of its creditors or enters into any agreement for
the composition, extension, or readjustment of all or substantially all of
its obligations, then the other party may, by giving prior written notice
thereof to the non-terminating party, terminate this Agreement as of a
date specified in such notice.
5.5. Payment Upon Termination. The parties acknowledge that upon termination of
any Schedule for any reason, (other than by election by either party not
to renew the Agreement pursuant to Section 2.1 or termination by Customer
pursuant to Section 5.3, 5.4 or 7.5), Aurum will incur damages resulting
from such termination that will be difficult or impossible to ascertain.
Therefore, prior to such termination and in addition to all
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other amounts then due and owing to Aurum, Customer will pay to Aurum as
reasonable liquidated damages an amount equal to the sum of subsections
(a) and (b):
(a) All costs reasonably incurred by Aurum in connection with such
termination, including without limitation telecommunication line
disengagement expenses and costs of terminating leases on or
shipping or storing any Equipment provided to Customer by or through
Aurum under the applicable Schedule, plus a twenty-five percent
management fee on such costs, plus Aurum's charges for any
Additional Services reasonably requested by Customer for
deconversion assistance and Aurum's then standard charges for the
resources utilized to prepare any test or conversion tapes
(together, the "Termination Costs"). Aurum may, at its option,
invoice Customer for the lesser of (i) Aurum's good faith estimate
of the Termination Costs, or (ii) the aggregate of the charges
payable to Aurum pursuant to Article III for the two calendar months
preceding the month in which notice of termination is given. If the
actual Termination Costs are greater or less than the amount of
Aurum's invoice that is paid by Customer under the immediately
preceding sentence, then Customer will pay Aurum, or Aurum will
refund to Customer, as the case may be, the difference between the
actual Termination Costs and the amount paid.
(b) Eighty percent (80%) during the first two years of the agreement,
seventy percent (70%) during the third year, sixty percent (60%)
during the fourth year and fifty percent (50%) during the fifth year
and beyond, of the total compensation that would have been paid or
reimbursed to Aurum under the applicable Schedule during the
remainder of the Term of the applicable Schedule ("Termination
Fees"). The amount of total compensation will be computed by
multiplying the total number of months remaining in the Initial Term
or the Renewal Term then in effect for the applicable Schedule from
the effective date of the termination by the greater of (i) the
average monthly charge to Customer for Authorized Services under the
applicable Schedule during the twelve (12) calendar months
immediately preceding the calendar month in which notice of
termination was given or (ii) the monthly charge payable by Customer
if the minimum volume requirements was used to determine such
monthly charge. If the applicable Schedule has been in effect less
than twelve (12) calendar months prior to the giving of the notice
of termination, then the parties will compute the amount due under
this subsection (b) using the average monthly charge for Authorized
Services under the applicable Schedule made during such lesser
number of calendar months. If termination of the applicable Schedule
occurs prior to the Operational Date for the applicable Schedule,
then the parties will compute the amount due under this subsection
(b) assuming that the Operational Date had occurred when scheduled
by Aurum and using the average monthly charges reasonably estimated
to be paid by Customer.
All amounts payable under this Section 5.5 will be invoiced and paid
prior to the effective date of such termination and prior to the
release of any test tapes or other data of Customer.
5.6. Payment Upon Nonrenewal. If Customer gives or receives notice not to renew
this Agreement pursuant to Section 2.1, or Customer terminates this
Agreement under Section 7.5, Customer will pay to Aurum an amount equal to
all amounts then due and payable to Aurum, plus (a) Aurum's charges for
any Additional Services reasonably requested by Customer for deconversion
assistance, (b) Aurum's then standard charges for the resources utilized
to prepare any test or conversion tapes, and (c) all other costs
reasonably incurred by Aurum in connection with such election not to renew
or termination that are described in Section 5.5(a) and that relate to
obligations that Customer approved, which extend beyond the then current
term of this Agreement or earlier termination date under Section 7.5. All
amounts payable under this Section 5.6 will be invoiced and paid prior to
the expiration date and prior to the release of any test tapes or other
data of Customer.
5.7. Effect of Termination. Upon termination of this Agreement, Customer shall
promptly and without charge return to Aurum or destroy all copies of all
Documentation, maintenance and policy manuals and other publications of
Aurum relating to the Aurum System or Authorized Services (collectively
"Copies"). Customer shall destroy all Copies contained on any had drive or
other fixed medium of storage. Customer's license to access the Software
and license to use Aurum's trademarks and service marks as provided in
this
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Agreement shall immediately terminate. Within sixty (60) days from the
date of termination of this Agreement, an officer of Customer shall
certify in writing to Aurum that Customer has complied with all
requirements of this Section.
ARTICLE VI - LIABILITY AND INDEMNITY
6.1. Limitation of Liability. Subject to any exclusive remedy set forth in this
Agreement or any Schedule, if Aurum becomes liable to the Customer under
this Agreement or any Schedule for any other reason, whether arising by
negligence, willful misconduct or otherwise, then (a) the damages
recoverable against Aurum for all events, acts, delays, or omissions will
not exceed in the aggregate the compensation payable to Aurum pursuant to
the Schedule under which such liability arose for the lesser of the months
that have elapsed since the Operational Date for the applicable Schedule
or the three months ending with the latest month in which occurred the
events, acts, delays, or omissions for which damages are claimed, and (b)
THE MEASURE OF DAMAGES WILL NOT INCLUDE, AND AURUM SHALL NOT BE LIABLE
FOR, ANY AMOUNTS FOR ANY LOSS OF PROFITS OR INDIRECT, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY PARTY, INCLUDING THIRD PARTIES,
OR DAMAGES WHICH COULD HAVE BEEN AVOIDED HAD THE OUTPUT PROVIDED BY AURUM
BEEN VERIFIED BY CUSTOMER BEFORE USE. Customer may not assert any cause of
action against Aurum of which the Customer knew or should have known more
than two years prior to such assertion. In connection with the conduct of
any litigation with third parties relating to any liability of Aurum to
Customer or to such third parties, Aurum will have all rights which are
appropriate to its potential responsibilities or liabilities. Aurum will
have the right to participate in all such litigation and to settle or
compromise its liability to third parties.
6.2 Warranty. Aurum will provide the Authorized Services in a professional and
workmanlike manner. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6.2,
AURUM DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT, BY
STATUTE OR BY OPERATION OF LAW OR OTHERWISE, CONTAINED IN OR DERIVED FROM
THIS AGREEMENT, ANY OF THE SCHEDULES ATTACHED HERETO, ANY OTHER DOCUMENTS
REFERENCED HEREIN, OR IN ANY OTHER MATERIALS, PRESENTATIONS OR OTHER
DOCUMENTS OR COMMUNICATIONS WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT
LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR
PURPOSE, ACCURACY OF INFORMATIONAL CONTENT AND SYSTEM INTEGRATION.
6.3. Force Majeure. Each party will be excused from performance under this
Agreement, except for any payment obligations, for any period and to the
extent that it is prevented from performing, in whole or in part, as a
result of any cause beyond its reasonable control, including, but not
limited to, Internet network failures or Internet capacity limitations,
compliance with regulations, orders or instructions of any federal, state
or municipal government or any department or agent thereof that delay or
restrict performance hereunder, the other party, any act of God, war,
civil disturbance, court order, labor dispute, third party nonperformance,
or failures, fluctuations or nonavailability of electrical power, heat,
light, air conditioning, or telecommunications equipment. Such
nonperformance will not be a default or a ground for termination as long
as reasonable means are taken to expeditiously remedy the problem causing
such nonperformance.
6.4. Cross Indemnity. Aurum and Customer each will indemnify, defend, and hold
harmless the other from any and all claims, actions, damages, liabilities,
costs, and expenses, including without limitation reasonable attorney's
fees and expenses, arising out of (a) the death or bodily injury of any
agent, employee, customer, or business invitee of the indemnitor, and (b)
the damage, loss, or destruction of any tangible personal or real property
of the indemnitor.
6.5. Reliance on Instructions. Aurum is entitled to rely upon and act in
accordance with any instructions, guidelines or information provided to
Aurum by Customer, which are given by persons having actual or apparent
authority to provide such instructions, guidelines, or information, and
will incur no liability in doing so. Customer will indemnify, defend, and
hold harmless Aurum from any and all claims, actions, damages,
liabilities, costs, and expenses, including without limitation reasonable
attorneys' fees and expenses, arising out of or resulting from Aurum
acting in accordance with this Agreement.
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6.6. Intellectual Property Indemnity. Aurum and Customer each will indemnify,
defend and hold harmless the other from any and all claims, actions,
damages, liabilities, costs and expenses, including without limitation,
reasonable attorney's fees and expenses, arising out of any claims of
infringement by the indemnitee of any United States letters patent, any
trade secret, or any copyright, trademark, service xxxx, trade name or
similar proprietary rights conferred by common law or by any law of the
United States or any state alleged to have occurred because of Systems
provided or work performed by the indemnitor. However, this indemnity will
not apply unless the indemnitee informs the indemnitor as soon as
practicable of any claim or action alleging such infringement and has
given the indemnitor full opportunity to control the response thereto and
the defense thereof, including, without limitation, any agreement relating
to settlement.
6.7. Indemnification by Customer.
----------------------------
(a) Customer will indemnify, defend and hold harmless Aurum against any
claim made by any person that is based on Aurum's providing the
products or services described in this Agreement and Schedule
("Aurum Indemnified Claim"), but this indemnity, defense and hold
harmless will not apply if the claim arises from Aurum's gross
negligence or willful misconduct.
(b) Aurum shall promptly notify Customer in writing and in reasonable
detail of any Aurum Indemnified Claim. Customer shall have the
authority to control the defense and settlement of such Aurum
Indemnified Claim, and Aurum shall give reasonable assistance to
Customer to enable Customer to defend the Aurum Indemnified Claim.
Aurum shall have the right, but not the obligation, to participate,
at its own expense, with respect to any such Indemnified Claim. No
such Aurum Indemnified Claim shall be settled or compromised by
Customer without the prior written consent of Aurum if such
settlement or compromise in any manner indicates that Aurum
contributed to or was responsible for the cause of any such Aurum
Indemnified Claim, or if such settlement or compromise imposes any
obligations upon Aurum or requires Aurum to take any action.
(c) Customer shall not be liable for any Aurum Indemnified Claim under
this Section 6.7 to the extent that such Aurum Indemnified Claim is
found in a final and binding arbitration award or a final
non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of Aurum.
6.8. Use of the System by Third Parties. Without limiting the terms of Section
6.1, the parties acknowledge that Customer is solely responsible for the
use of the Aurum System (and any resulting damages) by End User Customers
and other third parties including, without limitation, any improper or
unauthorized transfers of funds from accounts via the Aurum System, any
failure or delay in transmitting a message back from a Xxxx Pay vendor or
the use for any purpose of any financial calculators contained in the
Aurum System.
ARTICLE VII - MISCELLANEOUS
7.1. Binding Nature and Assignment. Each agreement is binding on the parties
and their respective successors and permitted assigns. Neither party may
assign an agreement unless it obtains the prior written consent of the
other party, which consent will not be unreasonably withheld. The
following transactions relating to either party will not require approval
of the other party under this section: an initial public offering of
stock, a sale of stock, any merger (including a reincorporation merger),
consolidation, reorganization or stock exchange or a sale of all or
substantially all of the assets of a party or of an entire line of
business of a party or other similar or related transaction in which such
parry is the surviving entity or, if such party is not the surviving
entity, the surviving or succeeding entity continues to conduct the
business conducted by such party prior to consummation of the transaction.
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7.2. Hiring of Employees. During the term of this Agreement and for a period of
twelve months thereafter, neither party will, without the prior written
consent of the other, offer employment to or employ any person employed
then or within the preceding twelve months by the other parry, if the
person was involved in providing or receiving Services.
7.3. Notices. Any notice under this Agreement will be deemed to be given when
(i) delivered by hand or when mailed by registered United States mail,
return receipt requested, and (ii) addressed to the recipient party at its
address set forth on the signature page of this Agreement and to the
attention of its President, in the case of Customer, or to the attention
of Director of eBusiness, with a copy to General Counsel, in the case of
Aurum. Either party may from time to time change its address for
notification purposes, by giving the other prior written notice of the new
address and the date upon which it will become effective.
7.4. Relationship Between Aurum and Customer. Except for the specific agency
provisions set forth in the Schedules, this Agreement does not in any way
create the relationship of principal and agent, or any similar
relationship between Aurum and Customer, including, but not limited to,
that of joint venturers, partners, employees, or associates. Neither party
is granted any right or authority to assume or create any obligation or
responsibility for, or on behalf of, the other party or to otherwise bind
the other party, other than as may be expressly authorized in this
Agreement.
7.5. Modification. Aurum may from time to time modify any of the provisions of
this Agreement or a Schedule to be effective at any time on or after the
expiration of the Initial Term of this Agreement or the applicable
Schedule by giving Customer at least six months prior written notice
describing the modification and the date upon which it will be effective
(the "Modification Date"). If Aurum gives Customer notice of a
modification pursuant to this Section, Customer may, by giving Aurum
written notice at least three months prior to the Modification Date,
terminate this Agreement or the applicable Schedule as of such
Modification Date or at a specified later date. Unless Customer provides
such notice, the modification will be effective for any period after the
Modification Date.
7.6. Waiver. A waiver by either of the parties of any of the covenants,
conditions, or agreements to be performed by the other or any breach
thereof will not be construed to be a waiver of any succeeding breach or
of any other covenant, condition, or agreement contained in this
Agreement.
7.7. Media Releases. All media releases, public announcements, and public
disclosures by either Party or either Party's employees or agents relating
to this Agreement or the subject matter of this Agreement, including
without limitation promotional or marketing material, but excluding any
announcement intended solely for internal distribution by a Party or any
disclosure required by legal, accounting, or regulatory requirements
beyond the reasonable control of a Party, will be coordinated with and
approved by the other Party in writing prior to release. Without limiting
its rights in general, either Party specifically may list the other
Party's name in customer reference lists without prior consent of the
other Party.
7.8. Entire Agreement. This Agreement and all attached Schedules constitute the
entire agreement between Aurum and Customer with respect to the subject
matter of this Agreement. There are no understandings or agreements
relative to this Agreement which are not fully expressed herein and no
change, waiver, or discharge of this Agreement will be valid unless in
writing and executed by the party against whom such change, waiver, or
discharge is sought to be enforced. This Agreement may be amended only by
an amendment in writing, signed by the parties.
7.9. Severability. If any provision of this Agreement is held to be illegal,
invalid, or unenforceable under present or future laws effective during
the Term, such provision shall be fully severable. This Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Agreement, and the remaining
provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid, or unenforceable provision
or by its severance from this Agreement.
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7.10. Survival. All provisions of this Agreement that by their nature are
intended to survive the expiration or termination of this Agreement shall
survive and remain in full force and effect.
7.11. No Third Party Beneficiary Rights. No provision of this Agreement is
intended or shall be construed to provide or create any third party
beneficiary right or any other right of any kind in any End User Customer
or any client, customer, member, affiliate, insurer, lender, shareholder,
partner, officer, director, employee or agent of any parry hereto, or in
any other person.
7.12. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas, without giving effect to
the conflict-of-laws principles thereof.
7.13. Execution of Agreement. Two (2) original copies of this Agreement will be
executed and submitted to Aurum by Customer. Aururn will return one of the
executed copies to Customer. By executing this Agreement, Customer
represents and warrants that (a) this Agreement has been duly authorized;
(b) such execution does not, and will not, cause a breach by Customer of
any other contract, agreement, or understanding to which Customer is a
party; and (c) this Agreement constitutes a valid, fully enforceable, and
legally binding obligation of Customer. Customer will maintain this
Agreement as an official record of Customer continuously from the time of
its execution.
ARTICLE VIII - DEFINITIONS
8.1 Definitions. In addition to all other terms defined in the Agreement and
Schedules, the following terms as used in the Agreement and Schedules
shall have the following meanings:
(a) "Additional Service" means any service requested by Customer and
provided by Aurum pursuant to terms and conditions agreed to by the
parties and which is not an Authorized Service.
(b) "Agreement" means this Internet Master Services Agreement, together
with all Schedules and amendments attached hereto or hereafter
attached by mutual consent of the parties (all of which are
incorporated herein by reference).
(c) "Aurum Personal eBanking Services" are the services described in
Section 1 of Schedule A to the Agreement.
(d) "Aurum Personal eBanking System" is that portion of the Aurum System
utilized to provide the Aurum Personal eBanking Services.
(e) "Aurum's Server" means the server-grade computers maintained by
Aurum on which the Aurum System and Customer's web site resides.
(f) "Authorized Services" means the services requested by Customer on
the signature page of this Agreement and the Additional Services
purchased by Customer.
(g) "Aurum System" shall mean Systems, Software, Aurum's proprietary
Internet banking system, telephone banking system or other
application provided by Aurum as more fully described in the
Schedules, together with all Aurum System Enhancements and
modifications made available to Customer under this Agreement.
(h) "Aurum Telephone Banking Data Center" is the space at one or more
locations where Aurum provides the Aurum Telephone Banking Service.
(i) "Aurum Telephone Banking Service" is the service described in
Section 1 of Schedule E to the Agreement.
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(j) "Aurum Telephone Banking System" is that portion of the Aurum System
utilized to provide the Aurum Telephone Banking Service.
(k) "Business Day" is each weekday, Monday through Friday, which is not
a holiday of the Federal Reserve Bank for the Federal Reserve
District in which Customer's principle office is located.
(1) "Customer Data Center" shall mean (i) the Customer's internal data
processing department operating on Aurum provided systems or (ii)
Aurum operating as the Customer's service bureau or data processing
provider.
(m) "Data Center" is the space at one or more locations where Aurum
performs Internet Services, excluding Customer locations.
(n) "Documentation" means that portion of the System that provides
installation and operating instructions for use of the System by
Customer.
(o) "Internet Services" means certain electronic business related
services offered by Aurum, including but not limited to, Internet
services, Internet banking services, telephone banking services and
ATM and debit card services.
(p) "End User Customer" means a customer, client or member of Customer
who uses the System.
(q) "Equipment" (if applicable) means Customer's computer equipment,
software, communications software, communications lines, router,
channel service unit, dial-up modem, connecting cables, telephone
hardware and software, and any additional equipment (i.e. personal
computer, etc.) needed to meet the required specifications for use
with the Aurum System.
(r) "Fees" mean all fees payable by Customer to Aurum under this
Agreement including, but not limited to, all the fees listed Section
3.1, Termination Fees (defined in Section 5.5), and fees payable
under any Schedule.
(s) "Operational Date" is the later of (i) the Effective Date, or (ii)
the first day of the calendar month in which the Aurum System is
implemented and Customer has the capability to utilize any portion
of the Aurum System or Authorized Services.
(t) "Parties" is a reference to Customer and Aurum together.
(u) "Schedule" means an exhibit or attachment to this Agreement that
describes an Authorized Service, sets forth additional terms and
conditions governing the provision of such Authorized Service, and
specifies the requirements for such Authorized Service.
(v) "Schedule Term" with respect to any applicable Schedule means the
Schedule Initial Term and all Schedule Renewal Terms as defined in
the applicable Schedule.
(w) "Software" means that portion of the Aurum System that is comprised
of Aurum's computer programs installed on the Aurum Server.
(x) "System" or "Systems" are (i) computer programs, including without
limitation software, firmware, application programs, operating
systems, files, and utilities; (ii) supporting documentation for
such computer programs, including without limitation input and
output formats,
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program listings, narrative descriptions, operating instructions and
procedures, user and training documentation, special forms, and
source code; and (iii) the tangible media upon which such programs
are recorded, including without limitation chips, tapes, disks, and
diskettes.
(y) "Term" with respect to the Agreement means the Initial Tem (defined
in Section 2.1) and all Renewal Terms (defined in Section 2.1).
(z) "Web site" means Customer's Internet presence found at Customer's
Uniform Resource Locator (URL) address.
8.2 Capitalized terms used without definition in the Schedules shall have the
meanings set forth in this Agreement.
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ADDENDUM TO
AURUM TECHNOLOGY INC.
INTERNET MASTER SERVICES AGREEMENT
STANDARD TERMS & CONDITIONS
Each of the provisions of this addendum is incorporated into the Standard Terms
& Conditions and expressly supersedes such Terms & Conditions to the extent they
are inconsistent with them.
1.) Section 1.3 is hereby deleted in its entirety and replaced by the
following:
"Software Access License. During the Term and subject to the
limitations set forth herein, Aurum grants to Customer a limited,
non-exclusive, and non-assignable license to access the Software
located on Aurum's Server for the purpose of receiving the
Authorized Services and using the "Aurum System" to provide banking
functionality and other related services to the End User Customers.
Aurum reserves all rights not expressly granted herein. Without
limiting the foregoing, Customer has no right to possess the
Software or any copies thereof in any form. Aurum hereby represents
that is authorized to license to Customer the applicable Software."
2.) The first paragraph of Section 1.6 is hereby deleted in its entirety and
replaced by the following:
"Regulatory Compliance. Customer shall be responsible for (i) compliance
with all state and federal laws and regulations governing banks and other
financial institutions; (ii) any disclosure to its End User Customers with
respect to the Authorized Services and each Customer product or service
made available through the Aurum System ("Customer Product/Service");
(iii) the terms and conditions of any Customer Product/Service; (iv) the
terms, conditions, and any limitations on which any Customer
Product/Service may be accessed, utilized or transactions originated by
any End User Customer; (v) determining the authority of any person
accessing a Customer Product/Service; and (vi) preparing, maintaining, and
monitoring compliance with verifiable documentation with respect to the
foregoing. Customer acknowledges and agrees that Customer shall not rely
upon Aurum for advice regarding compliance with governmental regulations.
Customer must independently verify its compliance with such regulations
through its own legal counsel. Aurum shall use commercially reasonable
efforts, during the Term of this Agreement, to be in substantive
compliance with federal rules and regulations as they relate to vendors of
Authorized Services. In the event that there is a significant change in
the manner by which the Authorized Services can be furnished hereunder, as
a result of a regulatory compliance requirement, Aurum and Customer shall
negotiate in good faith to resolve the compliance issue. If Aurum
determines that compliance is cost prohibitive, Aurum, may elect to
terminate the Agreement without penalty, upon six months advance notice to
Customer, or on the date 30-days prior to the date the applicable law,
regulation or rule goes into effect, whichever time period is shorter. In
the event Aurum reasonably determines that it may continue to provide some
services under this Agreement despite its right to terminate in the
preceding sentence, Aurum agrees to enter good faith negotiations with
Customer to determine a mutually acceptable means to continue providing
Customer with those services not affected. Such negotiation period will
not exceed thirty days. Regulatory disclosure requirements are the
responsibility of Customer."
3.) Section 1.9 is hereby deleted in its entirety and replaced by the
following:
"Correction of Errors. Aurum will correct any errors in customer files
that result in errors in reports or other output where such errors (i) are
due solely to either malfunctions of Aurum's equipment or the Aurum
Systems or errors of Aurum's operators, programmers, or other personnel,
and (ii) are called to Aurum's attention within the time frames specified
below. Aurum will, to the extent reasonably practicable, correct any other
errors as an Additional Service. Customer will balance reports to verify
master file information and will inspect and review all reports and other
output (whether printed or electronically transmitted) created from data
provided by Customer to Aurum. Customer will reject all incorrect reports
or output (i) within five Business Days after receipt of daily reports or
output, (ii) within five Business Days after receipt of annual, quarterly,
or monthly reports or output, and (iii) within five Business Days after
receipt of all other reports or output. This Section 1.09 sets forth
Customer's exclusive remedies for errors in reports or other output
provided by Aurum under this Agreement."
Internet Master Services Agreement
Town Bank of Westfield
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4.) Section 4.2 is hereby deleted in its entirety and replaced by the
following:
"Customer's Information. Information relating to Customer or End User
Customers contained in Customer's data files is the exclusive property of
Customer and Aurum will only be the custodian of that information. Aurum
agrees to hold in confidence all proprietary information of Customer and
End User Customers provided to Aurum in accordance with Section 4.3.
However, If Aurum is required to disclose any proprietary information of
Customer in accordance with any legal, accounting, or regulatory
requirements, then Aurum will promptly notify Customer of such requirement
and will cooperate with Customer (at Customer's expense) in Customer's
efforts, if any, to avoid or limit such disclosure (including, without
limitation, obtaining an injunction or an appropriate redaction of the
proprietary information in question). Promptly after the termination or
expiration of this Agreement and the payment to Aurum of all sums due and
owing, including without limitation any amounts due under Sections 5.5 or
5.6, Aurum will, at Customer's request and expense, return to Customer all
of Customer's information, data, and files in Aurum's then standard
machine-readable format and media."
5.) Section 6.1 is hereby deleted in its entirety and replaced by the
following:
"Limitation of Liability. Subject to any exclusive remedy set forth in
this Agreement or any Schedule, if Aurum becomes liable to the Customer
under this Agreement or any Schedule for any other reason, whether arising
by negligence, willful misconduct or otherwise, then (a) the damages
recoverable against Aurum for all events, acts, delays, or omissions will
not exceed in the aggregate the compensation payable to Aurum pursuant to
the Schedule under which such liability arose for the lesser of the months
that have elapsed since the Operational Date for the applicable Schedule
or the six months ending with the latest month in which occurred the
events, acts, delays, or omissions for which damages are claimed, and (b)
THE MEASURE OF DAMAGES WILL NOT INCLUDE, AND AURUM SHALL NOT BE LIABLE
FOR, ANY AMOUNTS FOR ANY LOSS OF PROFITS OR INDIRECT, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY PARTY, INCLUDING THIRD PARTIES,
OR DAMAGES WHICH COULD HAVE BEEN AVOIDED HAD THE OUTPUT PROVIDED BY AURUM
BEEN VERIFIED BY CUSTOMER BEFORE USE. Customer may not assert any cause of
action against Aurum of which the Customer knew or should have known more
than two years prior to such assertion. In connection with the conduct of
any litigation with third parties relating to any liability of Aurum to
Customer or to such third parties, Aurum will have all rights which are
appropriate to its potential responsibilities or liabilities. Aurum will
have the right to participate in all such litigation and to settle or
compromise its liability to third parties.
6.) Section 6.4 is hereby deleted in its entirety and replaced by the
following:
"Cross Indemnity. Aurum and Customer each will indemnify, defend, and hold
harmless the other from any and all claims, actions, damages, liabilities,
costs, and expenses, including without limitation reasonable attorney's
fees and expenses, resulting from the act or omission of the indemnifying
party that causes (a) the death or bodily injury of any agent, employee,
customer, or business invitee of the indemnitor, and/or (b) the damage,
loss, or destruction of any tangible personal or real property of the
indemnitor.
7.) Section 6.5 is hereby deleted in its entirety and replaced by the
following:
"Reliance on Instructions. Aurum is entitled to rely upon and act in
accordance with any instructions, guidelines or information provided to
Aurum by Customer, which are given by persons having actual or apparent
authority to provide such instructions, guidelines, or information, and
will incur no liability in doing so. Customer will indemnify, defend, and
hold harmless Aurum from any and all claims, actions, damages,
liabilities, costs, and expenses, including without limitation reasonable
attorneys' fees and expenses, arising out of or resulting from Aurum
acting in accordance with such instructions."
Internet Master Services Agreement
Town Bank of Westfield
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8.) Section 7.10 is hereby deleted in its entirety and replaced by the
following:
"Survival. All provisions of this Agreement that by their nature are
intended to survive the expiration or termination of this Agreement shall
survive and remain in full force and effect, including but not limited to
Sections 4.2, 4.3 and 7.1."
IN WITNESS WHEREOF, the parties have duly executed this Agreement by the
duly authorized signatures below as of June 11, 2003 (the "Effective Date")
AURUM TECHNOLOGY TOWN BANK OF WESTFIELD
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------ ---------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
---------------------------- -------------------------------------
Title: SVP- Electronic Business Title: President & Chief Executive Officer
--------------------------- ------------------------------------
Date: 7/22/03 Date: June 11, 2003
---------------------------- -------------------------------------
Internet Master Services Agreement
Town Bank of Westfield
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