Exhibit 10.3
PURCHASE AND LICENSE AGREEMENT
FOR APPRO SYSTEMS, INC.,
AGREEMENT made this 12th day of July, 1995, by and between LONG BEACH
ACCEPTANCE CORP., having its principal office and place of business at 000
Xxxxxxxxxxxx Xxxx, Xxxxxxx, XX 00000, (hereinafter referred to as "Purchaser"),
and APPRO Systems, Inc., a Louisiana corporation, having an office and place of
business at 0000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000 (hereinafter
referred to as "APPRO").
Under these terms and conditions, APPRO will: 1) furnish such licensed
programs to Purchaser, 2) furnish licensed optional materials in support of such
licensed programs, 3) grant to Purchaser a nontransferable and non-exclusive
license to use the licensed program materials, and 4) provide program services
and maintenance, all as described herein. Purchaser agrees with respect to the
licensed programs to accept the responsibility for: 1) their selection to
achieve Purchaser's intended results, 2) their use, and 3) the results obtained
therefrom.
W I T N E S S E T H:
1. AGREEMENT TO SELL AND GRANT OF LICENSE. APPRO SHALL:
1.1. offer to sell to Purchaser any or all of the optional software
and equipment listed in Exhibit "A" hereto (hereinafter
referred to as the "Equipment"); Prices quoted will be
guaranteed for ninety days from the date of this Agreement;
1.2. develop for Purchaser the custom software listed in Exhibit
"C" hereto (hereinafter referred to as the "Custom Software");
1.3. grant Purchaser a nontransferable and non-exclusive perpetual
license to use the following, on the Equipment as described in
Exhibit "A" hereto (hereinafter referred to as the
"Equipment"):
1.3.1. the Custom Software;
1.3.2. certain data processing programs other than the
Custom Software, consisting of a series of
instructions or statements in machine readable form
and certain related materials as described in Exhibit
"B" hereto (hereinafter referred to as the "Licensed
Programs");
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1.3.3. certain machine readable or printed materials not
included in a Licensed Program which APPRO has
designated for use in connection with a Licensed
Program (hereinafter referred to as the "Licensed
Optional Materials") (the Licensed Programs and
Licensed Optional Materials are hereinafter
collectively referred to as the "Licensed Program
Materials"); and
1.4. provide program services to Purchaser as described herein
(hereinafter referred to as the "Program Services").
The Equipment, Licensed Program Materials and Custom Software are
hereinafter collectively referred to as the "System."
2. COMPENSATION
2.1. Purchaser agrees to pay and APPRO agrees to accept the sum of
Eighty Four Thousand Eight Hundred ($84,800.00) dollars for
the System supplied by APPRO.
2.2. For each Custom Software Program or group of Custom Software
programs, Purchaser agrees to any additional costs made
necessary or resulting from changes requested and agreed to by
Purchaser. Such changes will be made at APPRO's prevailing
programming rate, which is $100. per hour on the date of this
Agreement. Any changes requested by Purchaser in the Custom
Software Program or group of Custom Software Programs
subsequent to the effective date of this Agreement must be in
writing.
2.3. Purchaser shall pay APPRO as a down payment the sum of Thirty
Eight Thousand Two Hundred Eighty Eight ($38,288.00) dollars
which is forty (40%) percent of the cost of the System and
Software Maintenance Support Services Fee within fifteen (15)
days of the date this Agreement is executed by Purchaser.
Purchaser shall pay APPRO an additional Thirty Eight Thousand
Two Hundred Eighty Eight ($38,288.00) dollars within forty
five (45) days of the date of this agreement. Purchaser shall
pay APPRO the remaining amount due for the Licensed Program
Materials and Software Maintenance and Support Services Fee
and the price for all completed Custom Software within thirty
(30) days after the following has occurred:
2.3.1. Purchaser has either:
2.3.1.1. notified APPRO in writing that the System
has been delivered to Purchaser, that
APPRO's personnel have completed the
Installation and Training Services set forth
in paragraphs 3 and 4 hereof, and that
Purchaser has determined that the System has
the capabilities listed in paragraph 5
hereof, or
2.3.1.2. used the System for productive purposes (the
term "productive purposes" shall mean use of
the System to process applications for new
accounts after the initial thirty (30) day
testing period described in paragraph 3
hereof); and
2.3.2. APPRO has submitted a statement to Purchaser
of the amount owed by Purchaser for the
system.
2.4. In addition to the price of the System, Purchaser shall pay:
2.4.1. all reasonable costs associated with shipping the
Equipment to Purchaser;
2.4.2. the cost of insurance on the Equipment during
shipment; and
2.4.3. all taxes, including, without limitation, sales and
use taxes and any other taxes that may be imposed on
the sale of the System, but exclusive of any local,
state or federal income tax applicable to the net
income or gross receipts of APPRO.
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2.5. If Purchaser cancels this Agreement before delivery of any
component part of the System, then the down payment shall be
forfeited and become the property of APPRO unless APPRO fails
to deliver and install the System in accordance with paragraph
3 contained herein. This agreement may be canceled if the
System fails to pass acceptance testing in accordance with
paragraph 3. In this event, APPRO will return the down payment
to Purchaser and Purchaser will immediately return and
discontinue use of the System and duly certify that all copies
of the Licensed Program Materials and Custom Software have
been destroyed and returned to APPRO.
3. DELIVERY, INSTALLATION, AND ACCEPTANCE TESTING.
APPRO shall deliver and install the System at Purchaser's premises at
000 Xxxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000. For a period of
thirty (30) days following delivery and installation of the System at
Purchaser's site, Purchaser shall be entitled to use the System in an
acceptance testing period, and such usage shall not in any event be
considered as acceptance of the System. Acceptance testing requirements
shall be met if the System performs those functions set forth in
paragraph 5. If the acceptance testing discloses deficiencies in the
System, Purchaser shall promptly notify APPRO of such failure, and
APPRO shall correct such deficiencies at no cost to Purchaser within
twenty (20) days. Thereafter, Purchaser shall have an additional
fourteen (14) days within which to repeat any applicable acceptance
test relating to the affected program. Purchaser may continue to
operate the unaffected programs during this additional testing period
by paying the amount due less the cost of the affected program.
4. INSTALLATION AND TRAINING SERVICES.
4.1. APPRO shall install the System on the Equipment provided by
Purchaser and APPRO during its normal working hours and as
agreed to by Purchaser. At least fifteen (15) days prior to
the delivery date, the installation site will be prepared by
Purchaser at its expense according to instructions outlined in
the "Installation Planning Guide." Purchaser shall be
responsible for and shall furnish all necessary labor to
unpack and place the Equipment. If installation by APPRO is
prevented by local law, union agreement, or otherwise, APPRO
will supervise the installation and Purchaser mill bear any
additional costs occasioned thereby.
4.2. APPRO shall train Purchaser's personnel to use the System and
shall complete such training at the time the System is
delivered and installed. Purchaser shall pay the amount
specified in Exhibit "C" for this installation and training.
In addition to the fee specified in Exhibit "C", Purchaser
shall reimburse APPRO for the reasonable living expenses of
APPRO's personnel during such installation and training plus
reasonable travel expenses from Baton Rouge to Purchaser's
installation site. APPRO shall submit an itemized statement
accompanied by receipts for its personnel's living expenses in
writing to Purchaser and Purchaser shall reimburse APPRO for
such expenses within thirty (30) days of receiving such
statement.
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5 CAPABILITIES OF THE SYSTEM
PERFORMANCE
- The System will perform within a response time limitation of
three to five seconds for basic inquiry and data entry
functions, excluding queries and report extracts.
APPLICATION ORIGINATION
- Select all programs from easy to use menus.
- Identification of incomplete applications.
- Online error checking for successful purchase of credit
report.
- Critical path processing of Instant Credit applications
provides rapid completion of rush applications even when a
credit report is required.
- Process multiple products on one application.
- Process multiple applicants on one application.
- Entry of partial application data with status tracking of
incomplete applications.
- User-definable help files.
- Electronic routing to specific personnel.
- Unique identification of each channel differentiates sources
from points of distribution.
- Product worksheets capture details about the credit product
requested.
- Automatic prefill of city and state when zip/postal code
entered.
- Bypass credit bureau retrieval processed based on user
selection.
CREDIT BUREAU ACCESS AND INTERPRETATION
- Routes credit bureau report requests by zip/postal code based
on user-maintained zip code tables.
- Obtains credit reports from Equifax, Trans Union, TRW or
affiliated credit bureau networks at 14.4 baud, including
automatic dialing, log-on and inquiry formatting.
- Instantly re-routes requests for credit reports to a secondary
vendor when the primary vendor is down or slow.
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- Electronic processing of credit history with computer analysis
including common summarization, automatic debt to income
calculation, application of user-selected review rules, and
automatic decline reason assignments.
- Automatic approval or decline of applications with automatic
fax delivery of credit decisions to source of applications.
ANALYST
- Select all programs from easy to use menus.
- Track applications with user-definable special status codes.
- User notes and comments on each application are stored in a
user-definable comment file for viewing and modifications.
- Automatic routing of applications to verification work queues
based on decision rule strategy and user selected
destinations.
- Cancel applications.
- Choose which applicant(s) to pull a secondary credit report
on.
- Retrieve a joint credit bureau report with only one request to
the credit bureau.
- Compare credit line assignment to loan authority of credit
analyst and route applications accordingly.
- Redecision applications once approved.
- Identification of incomplete applications and production of
letters requesting missing application data.
- Income calculator function to facilitate totaling of
applicant's income from multiple sources.
- Easily re-order additional credit report when warranted.
- Process multiple applicants on one application.
- Process multiple products on one application.
- Edit applicant data.
- Speed Scan through credit report to quickly view problem
areas.
- Applications for large lines are electronically routed to loan
officers with the appropriate lending authority.
- Access to all functions in Application Origination and
Verification programs.
DECISION RULE STRATEGY
- Select all programs from easy to use menus.
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- Artificial intelligence database stores over one hundred
decision rule strategies.
- Implements proprietary and standard score cards.
- Tailor decision rule strategies to vary by product type.
- Supports up to ten credit scoring algorithms (programs for
scoring algorithms are sold separately).
- Automatic approval/decline decisions based on decision rule
strategy with automatic routing to appropriate work queues.
- Prioritization of work queues with provisions for rush
application decisioning and re-routing of applications to
different queues.
- Automatic calculation of debt/income ratio based on
application and credit bureau information.
- Automatic calculation of loan/collateral value ratio.
- Automatic calculation of credit limit/income ratio.
- Special handling of trades with missing payments, ECOA
designations, etc.
- Maintain decision strategy parameters in user defined tables.
- Implements credit reporting agency subscriber code based on
products.
FRAUD PREVENTION
- Select all programs from an easy to use menu.
- Instantly detect potential frauds by checking both internal
online fraud file including comparison of name, address,
social security number, and phone number of known fraudulent
and high risk conditions (such as prisons, mail drops, etc.)
- Access credit bureau vendor fraud products.
- Check for duplicate applications by comparing name, address,
and social security number of each newly entered application
to the entire application inventory.
- Maintain a fraudulent application file including name,
address, phone number and social security number.
LETTER GENERATION
- Automatic selection of reasons for decline or reasons for
condition/additional information.
- Automatic production of decline letters to include name,
address and telephone number of consumer reporting agency.
- Automatic production of approval letters.
- Sort letters by application status, source, postal code, type
code, or by loan officer with up to three fields.
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- Print letters to a file and/or a printer.
REPORTS
- Flexible reporting capabilities allow user-definable reports
to be generated on any data that is stored.
- Select all programs from an easy to use menu.
- Quantify, qualify and age pending applications, for online
display and printed reports.
- Print dealer/branch/correspondent directories.
- Print mailing labels.
- Track application volumes, approval ratios and turnaround time
by source, using alphanumeric error-checked source code.
- Track application volumes, approval ratios and turnaround
times by product using an error-checked product code.
- Access application data files directly from third party
spreadsheet or database products using Microsoft SQL Server
ODBC drivers.
- Send and retrieve information from Issuer's Clearing House
(separate license required).
- Provide the daily and ad hoc reports for tracking of
application activity listed below:
1. Source Performance
2. Volume
3. Type
4. Reasons
5. Analyst Performance
6. Canceled Today
7. Channels
8. Contacts
9. Daily Activity Summary
10. Disposition Log
11. Entered Today
12. Quality
INQUIRY
- Select all programs from an easy to use menu.
- Instantly inquire on an application by name, address, social
security number, and source.
WORKFLOW MANAGEMENT
- Electronic routing facility provides users with a
easy-to-identify listing of applications in the work queue.
- Automatic queuing of applications to analysts on a first-in,
first-out basis with priority given to rush applications.
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- Reassign work queues to different personnel online.
- Review online work queues in process.
- Route applications to appropriate processing teams as
necessary based on channel or products.
- Graphical display of production queues for faxback and credit
bureau access processes.
SYSTEM ADMINISTRATION
- Select all operator functions from an easy to use menu.
- Control system performance through user maintainable control
tables for User authorizations (sign-on security for specific
function levels, membership to special processing teams)
1. Decision Matrices
2. Credit bureau assignments by zip/postal code
3. Credit bureau subscriber numbers and passwords
4. Consumer referral addresses
5. Adverse action, condition and override reasons
6. Application channels
7. Vendor preferences for title searches, flood
searches, etc. based on states or channels
8. Analyst loan officer, or buyer files
9. Processing team memberships for special routing
10. Analyst override authority
11. Product types
12. Letter templates
13. Fax templates
- Password security on user-selected functions.
- Change sign-on identification/operator access levels in a
user-maintainable table.
- Use online help screens to identify particular screens to use
or assist operator with coding within a screen.
In addition, the Custom Software as specified in Exhibit C hereto will
be provided.
6. OPERATING REQUIREMENTS.
Purchaser shall provide a suitable operating environment as outlined in
the "Installation Planning Guide" for the System.
7. SOFTWARE LICENSE/CONFIDENTIALITY.
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7.1. The license granted to Purchaser pursuant to this Agreement
authorizes Purchaser to use the System. Purchaser agrees that
it "will not sub license, assign or transfer any Licensed
Program Materials, Custom Software or copies thereof without
APPRO's prior written consent, which consent shall not be
unreasonably withheld, provided, however, the Purchaser may
assign or transfer same without consent to any subsidiary or
affiliate of the Purchaser or Purchaser's parent, or any
entity with which the Purchaser or its parent may merge, or to
whom the Purchaser or Purchaser's parent may sell all or
substantially all of its assets, or with whom the Purchaser or
Purchaser's parent may enter into arrangements to finance the
purchase of the System hereunder.
7.2. Purchaser acknowledges and agrees that the Licensed Program
Materials, Custom Software, trade secrets, ideas, research,
methods, manuals, procedures, systems, improvements,
enhancements, copyrighted or other materials, and any other
information or property of APPRO shall remain the sole and
exclusive property of APPRO and is provided to Purchaser in
trust and confidence and shall be deemed confidential for
purposes of this Agreement. Purchaser agrees to keep the
aforesaid information and property of APPRO confidential and
to use it only for the purposes and in the manner contemplated
by this Agreement. Purchaser agrees that it, or any of its
agents, employees, owners, or representatives, shall not copy,
alter, or make the Licensed Program Materials, Custom
Software, operations manual or portions thereof, or any other
confidential information or property, available to third
parties without APPRO's prior written consent. Purchaser
agrees to enforce the terms of these provisions as to its
agents, employees, representatives, and owners. Purchaser
further hereby grants APPRO the right but not the obligation,
to enforce these provisions in APPRO's name against any such
agents, employees, owners, or representatives violating the
above provisions.
7.3. The license granted pursuant to this Agreement shall begin on
the date this Agreement is executed by the parties to this
Agreement and continue thereafter unless and until terminated:
7.3.1. by Purchaser at any time on not less than thirty (30)
days prior written notice, or
7.3.2. by APPRO, in the event that Purchaser breaches any of
its obligations with regard to the Licensed Program
Materials, the Custom Software, the operating
manuals, or any provisions of this Agreement on not
less than thirty (30) days prior written notice;
provided, however, that APPRO's notice shall specify
the breaches committed by Purchaser and Purchaser
shall have the right to cure such breaches before the
termination date.
Upon termination of the Agreement by either party, Purchaser
shall return all Licensed Program Materials, Custom Software,
operating manuals and all other property and confidential
information and materials of APPRO promptly after the
termination of this Agreement, and Purchaser shall not retain
any copies thereof.
8. PROGRAM SERVICES.
8.1. In the event Purchaser discovers any discrepancy (as described
herein) within ninety (90) days of acceptance in a Licensed
Program or Custom Software Program after the testing period
specified in paragraph 3 hereof, APPRO shall provide the
following Program Services free of charge: APPRO shall correct
any such discrepancy by:
8.1.1. reprogramming or replacing the Licensed Program or
Custom Software program, or
8.1.2. issuing instructions to Purchaser concerning
correction of the discrepancy or a method of
bypassing the discrepancy.
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APPRO shall provide such Program Services only if it is
notified of any discrepancy in a Licensed Program or Custom
Software and is provided information required by APPRO. As
used in this Agreement, the term "discrepancy" shall mean the
System failure to possess a capability listed in paragraph 5
hereof or a capability of the Custom Software.
8.2. For any Licensed Program, APPRO shall have the right to charge
for program services requested by Purchaser to the extent they
are not specified as provided without additional charges.
APPRO shall have the right to charge for any effort which
results from providing program services requested by Purchaser
for an altered licensed program, operator error, a release
which is not current, equipment malfunction, or failure of the
Purchaser to provide a suitable operating environment. Charges
for these program services are provided in the software
maintenance contract attached hereto and made a part hereof as
Exhibit "D".
9. SUBSEQUENT RELEASES OF LICENSED PROGRAMS.
9.1. At the time the System is delivered to Purchaser, APPRO shall
provide the latest available release of the Licensed Program
Materials. APPRO shall provide to Purchaser and grant
Purchaser a license to use any subsequent release of Licensed
Program Materials issued by APPRO, in accordance with the
terms of this Agreement, at a price not to exceed 50% of the
then current retail price of the release.
9.2. APPRO reserves the right to alter the designations of any
software in order to reflect changing policy and/or support
requirements during the life of the software. Ongoing software
support and charges, therefore, shall be in accordance with
APPRO's commercial prices in effect at the time software or
support is requested. APPRO reserves the right, after the
expiration of three years from the date of this Agreement, to
withdraw software support should APPRO in its sole discretion
determine that continued support for the software is no longer
economically feasible, considering possible obsolescence and
similar factors. However, APPRO shall maintain software
support for the latest version and the next most current
version of such software and make such support available to
Purchaser for at least three years from the date of this
Agreement. APPRO shall provide one hundred eighty (180) days
notice of any subsequent software support withdrawal or any
change in license fee transaction charges.
9.3. APPRO agrees to maintain on deposit at all times with the
Escrow Agent defined below a then-current copy of (i) the
software in machine-readable object code, (ii) user
documentation relating to the System, (iii) manuals for the
operation of the System and (iv) a copy of the Source Code,
all of the foregoing as from time to time enhanced and
modified. In the event APPRO of any successor to APPRO, by
reason of a general cessation of business, the filing of a
petition in bankruptcy, an adjudication of bankruptcy, or the
withdrawal of software support, fails to provide the system or
any maintenance thereof in accordance with this Agreement,
Purchaser, upon request to the Escrow Agent, shall have the
right, both under this Agreement and as a third party
beneficiary of APPRO's Agreement with the Escrow Agent, to
obtain copies of such materials to use in maintaining the
System under this Agreement. The Escrow Agent shall be a
financial institution located in Baton Rouge, Louisiana, and
satisfactory to both parties hereto. APPRO shall forthwith
provide to Purchaser a copy of APPRO's Agreement with the
Escrow Agent.
10. WARRANTY.
EXCEPT TO THE EXTENT PROVIDED IN SECTION 8.1 OF THIS AGREEMENT, APPRO
DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTY WHATSOEVER TO ALL OR ANY
PART OF THE
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SYSTEM OR ANY ITEM CONVEYED TO PURCHASER IN THIS AGREEMENT INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE OR THOSE SPECIFIED IN THE LOUISIANA
CIVIL CODE.
Except to the extent provided in Section 8.1 of this Agreement, APPRO
specifically does not warrant that the functions contained in a
licensed program will meet Purchaser's requirements or will operate in
the combinations which may be selected for use by Purchaser, or that
the operation of the licensed program will be uninterrupted or error
free.
APPRO hereby assigns its interest in any manufacturer's warranty
applicable to the Equipment conveyed under this Agreement to the
Purchaser.
11. WARRANTY OF TITLE.
APPRO warrants to Purchaser that the title to the System conveyed
hereunder shall be good; its transfer rightful; and the System
hereunder shall be free and clear of any security interest, lien, or
other encumbrances and that it has full power and authority to grant
the rights granted by this Agreement to Purchaser with respect to the
Licensed Program Materials and the Custom Software, and that the use
thereof by Purchaser will not in any way constitute an infringement or
other violation of any copyright, trade secret, trademark, patent,
invention, proprietary information, nondisclosure, or other rights of
any third party.
12. ASSIGNMENT.
Any assignment of this Agreement by either APPRO or Purchaser without
the express written consent of the other party hereto, such consent not
to be unreasonably withheld, shall be void, provided, however, that
Purchaser may without APPRO's consent, assign all or any part of its
right, title, and interest under this Agreement to anyone to whom the
Licensed Program Materials, Custom Software or copies thereof may be
assigned without APPRO's consent pursuant to Section 7.1 of this
Agreement.
13. LIMITATION OF REMEDIES. APPRO'S ENTIRE LIABILITY AND THE PURCHASER'S
EXCLUSIVE REMEDY SHALL BE AS FOLLOWS:
13.1. In all situations involving performance or nonperformance of
licensed programs furnished under this Agreement, Purchaser's
remedy is:
13.1.1. the correction by APPRO of program discrepancies, or
13.1.2. if, after repeated efforts, APPRO is unable to
correct any program discrepancies, Purchaser shall,
at Purchaser's option, either (a) be entitled to
recovery of the purchase price of only those programs
which cannot be corrected by APPRO or (b) be entitled
to return the entire System to APPRO and receive a
full refund of the purchase price.
13.2. If any third party claim causes Purchaser's quiet enjoyment
and use of the Licensed Program Materials and the Custom
Software to be seriously endangered or disrupted, APPRO shall:
13.2.1. replace the same, without charge, with a compatible,
functionally equivalent and non-infringing product;
or
13.2.2. modify the same to avoid the infringement; or
13.2.3. obtain a license for Purchaser's continued use of the
same at no additional charge to Purchaser; and
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13.2.4. indemnify and hold harmless Purchaser from and
against all damages, expenses, liabilities and costs
of any nature, including attorney's fees, incurred in
connection with such claim.
13.3. If any replacement or modification made pursuant to Section
13.2.1 or Section 13.2.2., respectively, contains any
discrepancy as defined in Section 8.1. which is not corrected
after repeated efforts, Purchaser shall, at Purchaser's
option, either (a) be entitled to recovery of the purchase
price of only those programs which cannot be corrected by
APPRO or (b) be entitled to return the entire System to APPRO
and receive a full refund of the purchase price.
13.4. For any other claim whatsoever, including, but not limited to,
claims concerning performance or nonperformance, or for any
cause whatsoever, regardless of the form of action, whether in
contract or tort including negligence, or any other claim in
any way related to the subject matter of this Agreement,
APPRO's entire liability shall be limited to the original
purchase price less the reasonable cost of use by the
Purchaser.
14. INDEMNIFICATION AND ASSISTANCE IN LITIGATION.
Each party (the indemnifying party) shall indemnify and hold harmless
the other (the indemnified party) and its officers, employees, agents
and assigns against any expense, loss, claim, suit, liability and the
like, including reasonable attorney fees and costs, arising by reason
of any act or omission by the indemnifying party or any of its
officers, employees, agents or assigns. With respect to any such
expense, loss, claim, suit, liability or the like, each indemnified
party shall notify the other, permit participation in the defense
thereof, and not settle without the approval of the other party.
15. FORCE MAJEURE.
Neither party shall be responsible for delays or failures in
performance resulting from acts beyond the control of such party. Such
acts shall include but not be limited to acts of God, strikes, riots,
acts of war, epidemics, governmental regulations enacted after the
fact, fire, communication line failures, power failures, earthquakes or
other disasters. APPRO shall not be responsible for any delay or
failure of delivery resulting from difficulty in obtaining materials,
labor or transportation, energy shortage, delay in shipment by APPRO's
suppliers, or any other cause beyond its reasonable control.
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16. CANCELLATION.
In the event either Purchaser or APPRO defaults in the performance of
any of the terms and conditions of this Agreement, the party not in
default may terminate this Agreement thirty (30) days after sending
written notice to the other party, provided, however, that the party in
default shall have the right to cure such default by performing as
provided in the Agreement within such thirty (30) day period.
17. ACCESS AND CONFIDENTIALITY.
17.1. Purchaser shall permit APPRO access to Purchaser's premises,
during Purchaser's normal business hours for any reason
arising out of or in connection with Purchaser's obligations
under this Agreement. However, APPRO must give Purchaser at
least seventy two (72) hours advance notice of an intended
visit, APPRO must be accompanied by an employee of Purchaser
at each such visit.
17.2. APPRO acknowledges and agrees that everything in Purchaser's
offices and all data, ideas, research, methods, procedures and
any other information or property of Purchaser shall remain
the sole and exclusive property of Purchaser and is provided
to APPRO in trust and confidence and shall be deemed
confidential for purposes of this Agreement. APPRO agrees to
keep the aforesaid confidential and to use it only for the
purposes and in the manner contemplated by this Agreement.
APPRO agrees that neither it nor any of its agents, employees,
representatives or owners shall copy, alter or make the
aforesaid, or any other of Purchaser's confidential
information or property, available to third parties without
Purchaser's prior written consent. APPRO agrees to enforce the
terms of this Section 17.2. against its agents, employees,
representatives and owners. APPRO further hereby grants
Purchaser the right but not the obligation to enforce such
terms in Purchaser's name against any such agents, employees,
representatives or owners.
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18. NOTICES.
Any notice required to be given hereunder by either party to the other
party shall be in writing and shall be effected by certified mail,
postage prepaid and return receipt requested. Notices shall be
addressed as set forth below. Either party may notify the other party
of any change in its address by written notice in accordance with the
requirements of this paragraph.
APPRO: APPRO Systems, Inc.,
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
ATTENTION: Xxxxx Xxxxxx
PURCHASER: Long Beach Acceptance Corp.
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
ATTENTION: Mr. B. R. Xxxxxxxxxx,
Executive Vice President
19. GENERAL.
19.1. This Agreement is, and is intended by the parties to be, the
final expression and the complete and exclusive statement of
all the terms of the Agreement between the parties. The
parties acknowledge that this Agreement (including the
attached Exhibits) constitutes the entire Agreement with the
parties, and no covenant, condition, or other term, or
provision may be canceled, waived, or modified by a subsequent
oral agreement. The parties hereto further expressly agree, as
part of the consideration for entering into this Agreement,
that any cancellation, waiver, or modification of this
Agreement shall be absolutely null and without effect if it is
not in writing and signed by all parties.
19.2. The failure to require strict compliance or performance of any
one or more terms of this Agreement on one or more occasions
shall not be deemed a waiver of that or any other term or
condition on that or any other occasion. Any waiver of a right
or remedy under this Agreement must be contained in writing
and signed by the waiving party.
19.3. APPRO agrees, in performing any work required by this
Agreement, not to discriminate against any worker because of
race, creed, color, sex, or national origin.
19.4. The rights and duties of the parties hereunder shall inure to
the benefit of and be binding upon their respective successors
and assigns.
19.5. Captions appear in this Agreement only for convenient
references and they shall not affect the meaning of any
provisions herein.
14
THE PURCHASER ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT AND
AGREES TO ALL TERMS AND CONDITIONS STATED HEREIN.
IN WITNESS WHEREOF, each party has executed this Agreement as of the day and
year first above written.
APPRO SYSTEMS, INC.,
ATTEST: /s/ Xxxxx Xxxxxx
---------------------------
By: Xxxxx Xxxxxx
-------------------------------
Title: Vice President
----------------------------
LONG BEACH ACCEPTANCE CORP.
ATTEST /s/ Xxxxx X. Xxxxxxx
----------------------------
By: Xxxxx X. Xxxxxxx
-------------------------------
Title: President
----------------------------
15
EXHIBIT A - SYSTEM
CONFIGURATION
Purchaser shall provide Equipment in accordance with the APPRO Facility
Preparation Guide, as modified from time to time.
Based on information you provided, we recommend an APPRO MP-100 System with
the following configuration or with any other configuration that meets or
exceeds the performance of the following:
FILESERVER & 1 Compaq 486DX2/66, 16MB RAM, 2GB Hard Disk (a second Supplied by
hard disk for duplexing is highly recommended) Purchaser
DATABASE SERVER 1 Compaq Proliant 2000 (or equivalent Pentium PC with Supplied by
minimum of 64MB RAM, standard 340MB Hard Disk Drive Purchaser
plus (2) additional 32-bit Fast SCSI II Controllers and
two (2) 4GB Hard Disk Drives (choice of Raid 1 or Raid 5
configuration)
1 MS-SQL Server software for Windows NT, Version 4.21a Supplied by
Purchaser
1 MS-NT Server software V3.5 or higher Supplied by
Purchaser
1 Xxxxx Optima 14.4K (or 100% compatible) External modem Supplied by
for SQL Server support Purchaser
1 Best 1.4KV UPS w/Smart shutdown Supplied by
Purchaser
PERSONNEL Each Compaq 486DX/33, 16 MB RAM recommended Supplied by
Purchaser
WORKSTATIONS
CREDIT BUREAU 2 Compaq 486 DX/33, 16 MB RAM recommended Supplied by
Purchaser
SERVERS 2 Xxxxx Optima 14.4K External Modem (or 100% compatible) Supplied by
Purchaser
16
OUTBOUND FAX 1 Compaq 486DX/33, 16 MB RAM & 120 MB Hard Disk Supplied by
Purchaser
SERVER(S) 2 Gammafax CPi Intelligent Fax Board & software Supplied by
(no substitutions) Purchaser
2 RightFax V4.0 software licenses for # of boards used Supplied by
(NT LAN requires NT version, OS/2 or Netware LAN Purchaser
requires OS/2 Version)
DOCUMENT 1 Compaq 486DX2/66, 16 MB RAM & 120 MB Hard Disk Supplied by
Purchaser
SERVER(S) 1 MS-Word for Windows V6.0 & Windows for Workgroups V3.11 Supplied by
Purchaser
HOST INTERFACE/ 1 Compaq 486DX/33, 16MB RAM recommended Supplied by
Purchaser
GATEWAY SERVER 1 3270 ICOT OmniPath 3270 Gateway products w/Ksaver option Supplied by
Purchaser
1 3270 ICOT Gateway Operating Software for 5LU Supplied by
Purchaser
MONITORS Each Compaq 14" Color SVGA Monitor (1 required for each Supplied by
workstation) Purchaser
PRINTERS 1 HP Laser Printer IV w/ 8MB RAM Supplied by
Purchaser
17
NETWORK & 1 Intel 12-Port EISA Hub Adapter (Includes NIC for Fileserver Supplied by
and 2 Harmonica Connector Units), Purchaser
MISCELLANEOUS Each Intel EtherExpress 16 NIC, 10BaseT cabling & connectors Supplied by
(for all stations) Purchaser
HARDWARE Each MS-DOS 6.2 or later Supplied by
Purchaser
1 Xxxxxx 4.0 XX, 0xx DAT Tape Drive & 5-pack of tapes Supplied by
Purchaser
1 Crystal Reports V3.0 Software Supplied by
Purchaser
1 PC Anywhere for DOS V5.0 or higher Supplied by
Purchaser
1 Best Systems 2.1 KVA Uninterruptible Power Supply Supplied by
Purchaser
1 Xxxxx 14.4K External Modem (For Product Support Purposes) Supplied by
Purchaser
1 Novell 386 3.12 Operating System (50 Nodes) Supplied by
Purchaser
TOTAL HARDWARE Supplied by
Purchaser
18
EXHIBIT B
13-JUNE-95
PRODUCT NAME QUANTITY UNIT PRICE EXTENDED PRICE
LICENSED SOFTWARE TO BE SUPPLIED BY APPRO
APPRO W-100 V4.0 System Software 1 $50,000.00 $50,000.00
APPRO Auditor System 4.0 (Indirect Lending
Loan Verification, Cashing and Discounting) 1 $15,000.00 $15,000.00
APPRO On-Line Carbook - Automated Car
Valuation Module (NADA, Bluebook or other
such approved vendor - excludes annual NADA
or other vendor subscription fee and APPRO
$40.00 monthly maintenance/update charge) 1 $7,800.00 $7,800.00
TOTAL LICENSED SOFTWARE COSTS $72,800.00
19
EXHIBIT C
13-JUNE-95
PRODUCT NAME QUANTITY UNIT PRICE EXTENDED PRICE
CUSTOM SOFTWARE TO BE SUPPLIED BY APPRO
APPRO CONSULTING
INSTALLATION AND TRAINING
Three Weeks Total Training/Installation -
Two (2) Weeks On-Site, One Week for APPRO
System Administration Training in Baton Rouge,
plus two days Consulting. Excludes related travel
expenses and airfare/ (If WAN Installed, Additional
On-Site Time Will Be Billed Separately) $12,000.00
ESTIMATED COSTS OF CUSTOM SOFTWARE PRODUCTS TO BE SUPPLIED BY APPRO $12,000.00
20
EXHIBIT D
APPRO SYSTEMS, INC.,
SOFTWARE MAINTENANCE AND SUPPORT SERVICES AGREEMENT
1. SOFTWARE MAINTENANCE SERVICES
APPRO Systems, Inc., shall provide and Purchaser agrees to the
following software maintenance services free of charge:
1.1. Modifications to the Software which are designated by APPRO
Systems, Inc., as improvements, but not modifications
designated as enhancements for which APPRO Systems, Inc.,
charges separately.
1.2. Correction of Software errors to the extent reasonably
possible provided that all improvements previously provided to
User have been installed by User.
1.3. Updated documentation related to 1.1 and 1.2 above.
2. SYSTEM SUPPORT SERVICES
APPRO Systems, Inc., shall provide the following system support
services for the term of this Agreement:
2.1. Telephone consulting and on-site support between the hours of
7 A.M. and 6 P.M. Central time, Monday through Friday (except
holidays).
2.2. APPRO Systems, Inc., will provide same day response or
within one (1) business day to software problems resulting in
either a solution or a status report and approach to resolving
the problem.
2.3. Telephone support after hours (i.e., 6:00 P.M., Central time,
Monday through Friday) or in excess of eight (8) hours per day
will be charged to the User at the rate of $200 per hour.*
2.4. Required on-site support time will be covered under this
Agreement, except as provided in 8.2 of the
Purchase and
License Agreement. All associated travel expenses will be
billed separately at actual expense.
3. FEES
The above services shall be provided at a cost of Ten Thousand Nine
Hundred and Twenty Dollars ($10,920.00) for one year, and thereafter
adjusted annually as a per annum fee, in accordance with APPRO Systems,
Inc.'s then-current price schedule.
Purchaser agrees that any charges for software maintenance or system services
not covered by this agreement or by a separate Premium Support Services
Agreement will be paid for within ten (10) days of receipt of invoices. Such
services shall be charged at APPRO Systems' normal consulting rate of $100 per
hour* if provided during normal hours or at $200 per hour if provided after
APPRO's normal operating hours as described in Paragraph 2 above.
21
ADDENDUM TO
PURCHASE AND LICENSE AGREEMENT
LICENSEE NAME:
LICENSE NUMBER:
This Addendum to
Purchase and License Agreement (the "Addendum") is made this 8
day of August, 1995, by and between LONG BEACH ACCEPTANCE CORP. (Purchaser"),
and APPRO Systems, Inc. ("APPRO").
Except as expressly set forth in this Addendum, the terms and conditions of
that certain
Purchase and License Agreement previously entered into by and
between the parties (the "Agreement") will continue to govern the
relationship between the parties for all purposes.
1. BACKGROUND
1.1. NADA Services Corporation has developed a motor vehicle valuation
software program known as NADASC and is in the business of licensing
copies to subscribers along with regularly updated files containing
used vehicle valuation information contained in the NADASC
(collectively, "NADASC"). APPRO and NADASC have entered into an
Agreement granting APPRO the rights to make NADASC operational on APPRO
products and to grant non-exclusive, non-transferable sub-licenses to
use NADASC.
2. LICENSE GRANT
2.1. APPRO hereby grants a non-exclusive non-transferable sub-license to use
the object code version only of NADASC until this Agreement is
terminated in accordance with its terms, or until Licensee ceases using
the System, at which time NADASC and all copies shall either be
returned to APPRO or destroyed and so certified in writing to APPRO.
The license granted hereunder shall not permit Licensee to market, sub
license, or utilize NADASC separate from or independent from the
System.
3. WARRANTIES
3.1. Licensee expressly agrees that the use of NADASC and use of information
generated by NADASC is at Licensee's sole risk. Neither NADASC nor
APPRO warrants that the use of NADASC will be uninterrupted or error
free; nor does NADASC or APPRO make any warranty as to the results to
be obtained from the use of NADASC.
3.2. NADASC IS DISTRIBUTED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OR USE. NEITHER APPRO NOR NADASC SHALL BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF USE OF NADASC NEITHER APPRO NOR NADASC WARRANTS THE
ACCURACY, TIMELINESS, COMPLETENESS OR USEFULNESS OF NADASC OR ANY
INFORMATION CONTAINED THEREIN.
4. COPYRIGHT
4.1. Licensee may not reproduce, redistribute, re transmit, publish or
otherwise transfer any information which the Licensee obtains from the
use of NADASC.
4.2. Licensee agrees not to disassemble, decompile, reverse engineer, or
otherwise modify NADASC.
4.3. Licensee agrees that NADASC shall not be used as a data source from
which a new valuation database or valuation system may be created, and
that vehicles will be valued individually. Licensee further agrees that
any change in the use of NADASC shall require the prior written consent
of APPRO and NADASC.
4.4. Licensee may make one backup copy of the NADASC using standard server
back-up procedures. Licensee may use the NADASC solely at the
Installation Site.
5. CONFIDENTIALITY
5.1. Licensee acknowledges and agrees that NADASC, the vehicle valuation
contained therein, all enhancements and derivative works, are the sole
property of NADASC and subject to a valid copyright. Licensee
acknowledges that NADASC has created NADASC at great time and expense
and the Data contain proprietary information protected by copyright and
trade secret laws. Licensee further acknowledges that NADASC may suffer
great harm if Licensee or its employees disclose NADASC to a third
party. Licensee, therefore, agrees to:
5.1.1. hold NADASC in strict confidence;
5.1.2. disclose NADASC only to Licensee's employees to whom knowledge
is required for its proper use hereunder;
5.1.3. cause such employees to hold NADASC in strict confidence; and
5.1.4. take steps to prevent the accidental or otherwise unauthorized
disclosure of NADASC and the Data.
6. DATA UPDATES
6.1. During the Term of this Agreement and any extensions thereof, NADASC
will provide to APPRO monthly updates to all or portions of NADASC by
electronic media. APPRO will make such updates available to Licensee
via electronic media. It shall be the responsibility of Licensee to
ensure proper installation of such updates on the System in a timely
manner.
7. COMPENSATION
7.1. Licensee agrees to pay APPRO subscription fees for use of NADASC
according to the prevailing schedule of prices of APPRO.
8. TERM
8.1. This license is for a one year period and will then continue on an
annual basis unless terminated by either party with written notice
given and payment of all outstanding fees by Licensee.
LICENSEE APPRO SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Vice President /s/ Xxxxx X. Xxxxxx
---------------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxx
-------------------------------------- --------------------------------
Title Vice President Vice President
------------------------------------- --------------------------------
APPLICATION FOR SERVICE
--------------------------------------------------------------------------------
Estimated Annual Accesses to NADASC and Data:
--------------------------------------------------------------------------------
Estimated Number of Workstations Having Access to
NADASC and Data:
--------------------------------------------------------------------------------
Monthly Service Fee $40
--------------------------------------------------------------------------------
Setup Fee
--------------------------------------------------------------------------------
Annual Block Fee $1,350
--------------------------------------------------------------------------------
Other
--------------------------------------------------------------------------------
Other
--------------------------------------------------------------------------------
Amount of advance payment to accompany application
(Setup Fee plus three times the Monthly Service Fee
plus the Annual Block Fee). $1,830
--------------------------------------------------------------------------------
It is understood that subscription for the applicant, if approved by APPRO
Systems, Inc. will not become effective until the Addendum to
Purchase and
License Agreement has been duly executed by both the applicant and APPRO
Systems, Inc. and applicable fees have been paid.
Name of Applicant: Long Beach Acceptance Corp.
-----------------------------
Authorized Signature: /s/ Xxxxxx X. Xxxxxxxx, Vice President
--------------------------------------------
Dated this 8 day of August, 1995 at 000 XXXXXXXXXXXX XX., XXXXX 000
XXXXXXX, XX 00000
APPRO SYSTEMS, INC.
By: _______________________
SOURCEFILE
SOFTWARE ESCROW AGREEMENT
(MULTIPLE BENEFICIARIES)
SourceFile Deposit Number: 7195
--------------------------
This Software Escrow Agreement is dated February 7th, 1996 and is by and
among the following parties:
SOURCEFILE:
SourceFile, Inc.
A California Corporation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
OWNER:
APPRO Systems, Inc.
A
Louisiana Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
BENEFICIARY:
Each beneficiary registered under this
Agreement as provided below.
1. SOFTWARE. Owner is the owner of, or otherwise has right to, certain
computer software and documentation identified in Exhibit A attached
hereto. The term "Software" is used in this Agreement to mean the
software identified in Exhibit A.
Whenever the context reasonably permits, the term "Software" shall also
include the "Documentation" identified in Exhibit A.
2. BUSINESS OF OWNER. Owner is the business of licensing the Software to
its licensees. Owner desires to establish a Software escrow for the
benefit of its licensees who desire to register with SourceFile.
3. BENEFICIARIES. Each licensee of the Software who registers with
SourceFile as provided in Section 5 shall be a "Beneficiary" under this
agreement until such licensee ceases to be a Beneficiary as provided in
Section 16. The term "Beneficiaries" means all such registered
licensees.
4. ESTABLISHMENT OF ESCROW. Owner hereby establishes a Software escrow
with SourceFile to be governed by the terms and conditions of this
Agreement. Such escrow is hereinafter referred to as the "Escrow."
5. REGISTRATIONS. To register a licensee with SourceFile, the following
procedures must be followed:
(a) Owner and licensee must complete and execute a "Certificate of
Registration" in the form of Exhibit B attached.
(b) The completed and executed Certificate of Registration must be
submitted to SourceFile.
(c) SourceFile will give written notice to Owner and licensee of
receipt of the Certificate of Registration.
6. LICENSE AGREEMENT. Owner and Beneficiary have entered into one or more
agreements identified in Beneficiary's Certificate of Registration
pursuant to which Owner has licensed or authorized Beneficiary to use
the Software. Such agreement(s) is (are) referred to herein as the
"License Agreement." This Software Escrow Agreement is intended by the
Parties to be supplementary to the License Agreement. Specifically, the
Parties intend that this Software Escrow Agreement by an "agreement
supplemental to any license agreement" within the meaning of Section
365(n) of the U. S. Bankruptcy Code (11 U.S.C. 365(n)). If Owner is a
debtor in possession or if a trustee under the U. S. Bankruptcy Code
rejects this Agreement and/or the License Agreement, Beneficiary may
elect to retain its rights as provided in Section 365(n).
7. INITIAL DEPOSIT. Owner shall deliver to SourceFile the Initial Deposit
described in Exhibit C.
8. DEPOSIT UPDATES. Owner shall deliver to SourceFile Deposit Upgrades as
described in Exhibit C.
9. DEPOSIT PROCEDURE. The Initial Deposit and each Deposit Update shall be
made and delivered by Owner to SourceFile in accordance with the
following:
(a) Owner shall clearly label and identify all materials and items
included in the deposit (i.e., Initial Deposit or Deposit
Update.)
(b) Owner shall complete SourceFile's then-current "Deposit
Inventory Form" for each deposit. The Deposit Inventory Form
must include a list clearly identifying all materials and
items included in the deposit so that SourceFile can cross-
reference the list with the labeling and identification by
Owner in (a) above.
(c) Owner shall deliver the deposit and Deposit Inventory Form to
SourceFile.
(d) After receiving the deposit and Deposit Inventory Form,
SourceFile will verify that the deposit includes the materials
and items identified in the Deposit Inventory Form. This
verification consists only of cross-referencing the list of
materials and items in the Deposit Inventory Form with the
labels and identification in the deposit. SourceFile is not
responsible for verifying the completeness, accuracy,
suitability, safety, quality, or content of the deposit.
(e) SourceFile shall give written notification to Owner and each
Beneficiary of the receipt of the deposit. If SourceFile
determines that there is a discrepancy between the deposit and
the Deposit Inventory Form, such notification shall include a
description of the discrepancy.
(f) Owner shall promptly correct any such discrepancy by making an
additional Deposit Update in accordance with this Section 9.
(g) SourceFile shall place the deposit in secure vault storage for
safekeeping.
10. DEFINITION OF DEPOSIT. As hereinafter used, the term "Deposit" shall
mean all materials and items delivered by Owner to SourceFile in
accordance with Sections 7, 8 and 9. The "Deposit" shall cease to
include any materials or items returned or destroyed in accordance with
Section 11. The Parties agree that the Deposit compromises "embodiments
of software" as that term is used in Section 365(n) of the U. S.
Bankruptcy Code(11 U.S.C. 365(n)).
11. REPLACEMENT OF OBSOLETE DEPOSIT MATERIALS. It is contemplated that over
time certain of the materials or items in the Deposit may become
obsolete, outdated, or redundant. To the extent that such materials or
items become obsolete, outdated, or redundant because of Deposit
Updates, Owner may identify for SourceFile the obsolete, outdated or
redundant materials or items and instruct SourceFile to destroy or
return the obsolete, outdated or redundant materials or items
identified by Owner. Such identification shall be made in writing in
the Deposit Inventory Form of a Deposit Update and must be consistent
with the labeling and identification used by Owner under 9. (a)
above. SourceFile will give beneficiary written notice of Owner's
instructions to return or destroy the identified materials or items. If
SourceFile does not receive a written objection from Beneficiary within
30 days of the date that such notice is mailed or otherwise delivered
by to Beneficiary, then SourceFile shall return or destroy the
materials or items in accordance with Owner's instructions. If
Beneficiary objects in writing in a timely manner, then the matter
shall be resolved by Owner and Beneficiary in accordance with Section
19.
12. RELEASE OF DEPOSIT - REQUEST OF BENEFICIARY. Beneficiary shall be
entitled to receive a copy of the Deposit upon occurrence of the
Release Condition described in Exhibit D. Upon occurrence of the
Release Condition, the following procedure shall apply:
(a) Beneficiary shall give written notice to SourceFile informing
SourceFile that the Release Conditions has occurred, shall
request SourceFile in writing to release a copy of the Deposit
to Beneficiary, and shall pay the non-refundable Release Fee
to SourceFile.
(b) After all the conditions in 12. (a) have been met, SourceFile
shall promptly give Owner written notice of Beneficiary's
notice and request for release.
(c) If Owner does not dispute Beneficiary's right to a copy of the
Deposit within two weeks of receipt of the notice from
SourceFile, then SourceFile shall release a copy of the
Deposit to Beneficiary.
(d) If Owner disputes Beneficiary's right to a copy of the
Deposit, then Owner must be given written notice of such
dispute to SourceFile prior to the conclusion of the two-week
period. If SourceFile receives such timely notice of dispute,
SourceFile will not release a copy of the Deposit to
Beneficiary until the dispute is resolved by Owner and
Beneficiary in accordance with Section 19. Such resolution
will determine whether or not Beneficiary is entitled to
receive from SourceFile a copy of the Deposit.
(e) SourceFile has no obligation to determine whether or not
Beneficiary is entitled to a copy of the Deposit. SourceFile
may rely upon the resolution reached in accordance with
Section 19.
13. RELEASE OF DEPOSIT - OWNER'S INSTRUCTIONS. Upon receipt of written
instruction from Owner and the receipt of the Reduced Release Fee,
SourceFile shall release a copy of the Deposit to each Beneficiary
designated in the instruction.
14. USE OF RELEASED DEPOSIT. If a copy of the Deposit is released to
Beneficiary under Section 12 or 13, Beneficiary may only use the
deposit as permitted in Exhibit D.
15. FEES. SourceFile shall receive the following fees and payments.
(a) INITIAL FEE, Upon execution of this Agreement, Owner shall pay
the Initial Fee to SourceFile. The Initial Fee includes
payment for establishment of the Escrow and for the first year
of the Escrow.
(b) ANNUAL RENEWAL FEE. Until termination of the Escrow, Owner
shall pay to SourceFile, an Annual Renewal Fee payable in
advance of the year for which it is applicable.
(C) BENEFICIARY FEES. Each Beneficiary must pay a Registration Fee
to SourceFile at the time of registration. This entitles the
Beneficiary to registration for the remainder of the contract
year in which the Registration Fee is paid. Thereafter and
until the Beneficiary ceases to be a "Beneficiary" (see
Section 16), the Beneficiary shall pay to SourceFile an Annual
Beneficiary Fee.
(d) DEPOSIT UPDATE FEE. Owner is entitled to make four Deposit
Updates per contract year at no extra charge. If Owner makes
more than four Deposit Updates in a contract year, Owner shall
pay the Deposit Update Fee to SourceFile for each extra
Deposit Update. The Deposit Update Fee is payable in advance.
(e) RELEASE FEE. Each Beneficiary requesting a release of a copy
of the Deposit under Section 12 shall pay the Release Fee to
SourceFile. If copies of the Deposit are released at the
instruction of Owner under Section 13, Owner shall pay a
Reduced Release Fee to SourceFile for each Beneficiary
receiving a copy of the Deposit. The Reduced Release Fee shall
equal thirty percent (30%) of the Release Fee.
(f) EXCESS STORAGE CHARGES. If the vault storage requirement for
the Deposit exceeds two cubic feet, then Owner will pay the
Excess Storage Charge.
(g) INCREASES. All Fees and Charges are subject to increase by
SourceFile upon advance written notice to Owner and
Beneficiary. SourceFile's then-current Fees and Charges shall
be payable. There shall be no increase during the first
contract year. The Fees and Charges in effect on the date of
this Agreement are set forth in Exhibit E. Increases in Fees
shall not exceed the annual percentage increases in the
Consumer Price Index - All Items and Major Group Figures for
All Urban Consumers (1982-84=100).
(h) COSTS. Each Beneficiary shall pay SourceFile for reasonable
costs incurred by SourceFile in producing and delivering
copies of the Deposit to the Beneficiary. All other costs
reasonably incurred by SourceFile in connection with this
Agreement are reimbursable by Owner to SourceFile. Costs are
not included in the above Fees and Charges and are payable in
addition to the above Fees and Charges.
16. TERMINATION OF BENEFICIARY'S REGISTRATION. Beneficiary's registration
will terminate and Beneficiary will cease to be a "Beneficiary" under
this Agreement if any of the following occurs:
(a) Beneficiary gives written notice of such termination to
SourceFile.
(b) The License Agreement terminates. In the event of such
termination, Beneficiary and Owner will give written notice
thereof to SourceFile.
(c) Beneficiary breaches this Agreement or fails to make payment
to SourceFile as provided in this Agreement and does not cure
breach or make such payment within 15 days of written notice
of such breach or failure.
(d) The Escrow terminates.
SourceFile will have no obligation or liability to Beneficiary after such
termination. Termination a Beneficiary's registration shall not affect the
other Beneficiaries.
17. TERMINATION OF ESCROW. This Escrow may be terminated by either Owner or
SourceFile upon 90 days advance written notice of termination to the
other Party and to Beneficiary. Upon termination the following shall
apply:
(a) SourceFile shall either return the Deposit to Owner or destroy
the Deposit, whichever Owner requests. If destruction is
requested, SourceFile will certify in writing to Owner that
such destruction has occurred.
(b) SourceFile shall have no obligation or liability to Owner or
Beneficiary after termination.
18. ESTABLISHMENT OF SUBSTITUTE ESCROW. During the 90 day period under
Section 17, Owner shall establish a substitute Software escrow with a
third party escrow agent for the benefit of Beneficiary. The substitute
Software escrow must be approved by Beneficiary but such approval will
not be unreasonably withheld or delayed. If necessary, this matter
shall be resolved in accordance with Section 19. If more than 90 days
is needed to establish the substitute Software escrow and if SourceFile
receives written notice from Owner or Beneficiary of such need prior to
the end of such 90 days, then the 90 day period under Section 17 shall
be extended as reasonably necessary and the Escrow shall not terminate
until SourceFile receives written notice from Owner that the substitute
Software escrow has been established and approved. Notwithstanding the
foregoing, SourceFile may terminate the Escrow is SourceFile does not
continue to receive payments to which it is entitled under this
Agreement.
19. DISPUTE RESOLUTION. In the event of a dispute the parties shall resolve
the dispute pursuant to the terms of the Licensing Agreement. Any and
all disputes shall be resolved
according to
Louisiana law and venue for any such action shall be in
the Middle District of
Louisiana.
20. PROTECTION OF THE DEPOSIT.
(a) SourceFile shall keep the Deposit in vault storage.
(b) SourceFile shall not disclose or reveal the Deposit or any
part thereof to any other person except as provided in this
Agreement.
(c) If any of the materials or items comprising the Deposit are
damaged, destroyed or lost by fire, theft, accident, or other
mishap or cause, Owner shall submit to SourceFile such Deposit
Updates as are necessary to replace the damaged, destroyed or
lost materials or items. There shall be no Deposit Update Fees
charged to Owner for such updates.
21. PROTECTION OF SOURCEFILE.
(a) NO OTHER OBLIGATIONS. This Agreement expressly sets forth all
the duties and obligations of SourceFile with respect to any
and all matters relating to this Agreement, the Escrow or the
Deposit. SourceFile has not implied duties or obligations.
SourceFile has not obligation under the License Agreement or
any other agreement between the other Parties hereto except
for this Software Escrow Agreement.
(b) INDEMNIFICATION. SourceFile shall not be liable, except for
its own gross negligence or willful misconduct. Except with
respect to claims based upon such gross negligence or willful
misconduct that are successfully asserted against SourceFile,
the other Parties hereto shall jointly and severally indemnify
and hold harmless SourceFile and its directors, officers,
employees, shareholders, and representatives from and against
any and all liabilities, claims, actions, judgments, damages,
losses and expenses, including attorneys' fees, arising out of
or relating to this Software Escrow Agreement, the Escrow, or
the Deposit.
(c) DEPOSITORY ONLY. SourceFile acts hereunder as a depository
only and is not responsible or liable for the completeness,
accuracy, suitability, safety, quality, content, sufficiency,
correctness, genuineness or validity of the Deposit or any
document submitted to SourceFile or the execution of the same
or the identity, authority, or rights of any person executing
or depositing the same.
(d) UNCERTAINTY. Notwithstanding anything in this Agreement to the
contrary, if SourceFile is uncertain as to any duty,
obligation, demand, or right, SourceFile may hold the deposit
and refrain from taking any action and wait for a final
resolution under Section 19 or a court order.
(e) RELIANCE. SourceFile shall not incur any liability in acting
upon any notice, request, waiver, consent, receipt or other
paper or document believed by SourceFile to be genuine or to
be signed by the proper party or parties, or in acting upon
any resolution under Section 19 or any court order.
(f) LEGAL COUNSEL. SourceFile may consult with legal counsel in
the event of any dispute or question as to its duties or
obligations hereunder and shall not be held to any liability
for acting in accordance with advise so received.
(g) EXTRAORDINARY SERVICES. In addition to the Fees and Charges
for the usual services of SourceFile under this Agreement (see
Section 15 and Exhibit E), SourceFile shall be entitled to
additional compensation should SourceFile be requested or
required to perform any additional or extraordinary service;
and SourceFile shall be reimbursed for any out-of-pocket
expenses (including, without limitation, fees of counsel)
reasonably incurred in connection with such additional or
extraordinary services. Extraordinary services include, but
are not limited to, any involvement of SourceFile, at the
request or demand of Owner or Beneficiary, in any dispute
resolution between Owner and Beneficiary.
(h) COMPLIANCE. SourceFile shall have no responsibility to insure
compliance by any Beneficiary with Section 14.
(i) DISCLAIMER. SOURCEFILE MAKES NO WARRANTY NOT EXPRESSLY SET
FORTH HEREIN. ANY IMPLIED WARRANTIES ARE DISCLAIMED AND
EXCLUDED BY SOURCEFILE.
(j) LIMITATIONS ON LIABILITY. FOR ANY AND ALL CLAIMS AND CAUSES
OF ACTION (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT,
TORT, FRAUD, MALPRACTICE, ETC.) SOURCEFILE'S AGGREGATE
LIABILITY TO OWNER SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY
OWNER TO SOURCEFILE UNDER THIS AGREEMENT AND SOURCEFILE'S
AGGREGATE LIABILITY TO A BENEFICIARY SHALL NOT EXCEED THE
TOTAL AMOUNT PAID BY THE BENEFICIARY TO SOURCEFILE
UNDER THIS AGREEMENT. IN NO EVENT SHALL SOURCEFILE BE LIABLE
FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, OR
PUNITIVE DAMAGES.
(k) ALLOCATION OF RISK. This Agreement in general, and this
Section 21 in particular, defines a mutually agreed-upon
allocation of risk and the Fees payable to SourceFile have
been reduced to reflect this allocation of risk.
22. GENERAL PROVISIONS.
(a) INTERPRETATION. Section and subsection headings are used for
convenience of reference only and shall not limit or affect
any interpretation of any section or
subsection. The language used in this Agreement is the
language chosen by the Parties to express their mutual intent,
and no rule or strict construction shall be applied by any
Party.
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire
Agreement of the Parties relating to the Escrow.
(c) NON-WAIVER. The failure of SourceFile to insist upon strict
compliance with the terms hereof by Owner and Beneficiary in
any instance, shall not constitute a waiver of SourceFile's
right to subsequently require strict compliance with the terms
of this Agreement.
(d) GOVERNING LAW. This Agreement is made and entered into in the
state of
Louisiana. This Agreement, the Escrow and the
relationship of SourceFile with the Owner and Beneficiary
shall be governed and construed under and in accordance with
the laws of the state of
Louisiana. Furthermore, in the event
of any dispute between SourceFile and Owner or between
SourceFile and Beneficiary, such dispute shall be conducted in
Baton Rouge,
Louisiana and the Parties hereby agree and submit
to such jurisdiction and venue.
(e) NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be delivered
personally or by registered or certified mail or by commercial
courier or by facsimile transmission to the address or fax
number indicated for the intended Party at the beginning of
this Agreement or, in the case of Beneficiary, on
Beneficiary's Certificate of Registration, to such substitute
address or fax number as any party may designate for itself by
proper notice to the other Parties.
(f) MODIFICATION. This Agreement may only be modified, amended or
rescinded by a writing signed by all affected Parties.
(g) FORCE MAJEURE. Except for obligations to make payment, no
Party shall be liable for any failure to perform arising from
causes beyond its control, including, but not limited to,
fire, storm, flood, earthquake, explosion, accident, acts of
public enemies, war, insurrection, sabotage, illness, labor
disputes or shortages, product shortages, failure or delays in
transportation, inability to secure materials, parts or
equipment, acts of God, or acts of any governmental authority
or agency thereof.
(h) BINDING. This Agreement shall be binding upon the Parties and
their permitted successors, assigns and trustees.
(i) EXECUTION. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same
instrument. The persons signing below represent that they are
duly authorized to execute this Agreement for and on behalf of
the Party for whom they are signing.
READ, AGREED TO AND ACCEPTED BY:
Appro Systems, Inc. (OWNER)
------------------------------------
BY (SIGNATURE): /s/ Xxxxx X. Xxxxxx
---------------------------------------------------
NAME (PRINT): XXXXX X. XXXXXX
---------------------------------------------------
TITLE: VICE PRESIDENT
---------------------------------------------------
SOURCEFILE
BY (SIGNATURE): /s/ X.X. Xxxxxxxxx
---------------------------------------------------
NAME (PRINT): X.X. XXXXXXXXX
---------------------------------------------------
TITLE: PRESIDENT
---------------------------------------------------
EXHIBIT A
SOFTWARE
APPRO MP-100 V4.0 System Software
APPRO Auditor System V4.0
APPRO OnLine Carbook
APPRO Advanced Report Writer
APPRO Electronic Archiving
APPRO New Account Setup Module for batch upload of new
account records to Xxxxx Host Database via 3270 emulation gateway
APPRO WAN License
Implementation of Fair Xxxxx Revolving Credit Scorecard
Implementation of Fair Xxxxx Indirect Loan Pooled Data Scorecard
DOCUMENTATION
APPRO Concepts Manual
APPRO Application Origination Manual
APPRO Analyst Manual
APPRO System Administration Manual
EXHIBIT A
SOFTWARE
DOCUMENTATION
EXHIBIT B
CERTIFICATE OF REGISTRATION
SourceFile Deposit Number: ___________________________________
Owner: __________________________________________________
__________________________________________________
Beneficiary: __________________________________________________
__________________________________________________
__________________________________________________
Tel:______________________________________________
Fax:______________________________________________
Beneficiary's Contact Person:_____________________________________________
This Certificate of Registration applies to the above identified SourceFile
Deposit and the Software Escrow Agreement dated ___________________, 19_____
to which Owner and SourceFile ("SourceFile") are parties (the "Escrow
Agreement").
Owner and Beneficiary have entered into one or more other agreements identified
below:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
Such agreement(s) (including addendums or amendments thereto, if any) is
(are) referred to in the Escorts Agreement as the "License Agreement."
Beneficiary has received and reviewed a copy of the Escrow Agreement.
Beneficiary agrees to the terms and conditions of the Escrow Agreement and is
hereby made a Party thereto. Beneficiary is entitled to the rights and
benefits of a "Beneficiary" under the Escrow Agreement and accepts the
obligations of a "Beneficiary" under the Escrow Agreement.
AGREED AND ACCEPTED BY:
OWNER BENEFICIARY
By:_______________________________ By:________________________________
Title:____________________________ Title:_____________________________
Date:_____________________________ Date:______________________________
EXHIBIT C
INITIAL DEPOSIT
DEPOSIT UPDATES
Owner shall update the Deposit by submitting to SourceFile all of the
materials and items identified above for any new versions of the Software
provided by Owner to Beneficiary under the License Agreement.
EXHIBIT D
RELEASE CONDITIONS
The "Release Condition" shall be deemed to have occurred if any one of more
of the following conditions is satisfied.
1. Owner becomes insolvent or admits insolvency or admits a general
liability to pay its debts as they become due.
2. Owner files a petition for protection under the Bankruptcy Code of the
United States.
3. An involuntary petition is filed against Owner an is not dismissed
within 90 days thereafter.
4. Owner fails to maintain the Software as obligated in the License
Agreement and does not correct such failure within 60 days of receipt
of written notice from Beneficiary of such failure.
PERMITTED USE OF RELEASED DEPOSIT
In the event that a copy of the Deposit is released to Beneficiary, the
following shall apply:
1. Beneficiary may only use the Deposit to maintain the Software. The
maintained Software may be used in accordance with the License
Agreement.
2. Beneficiary may not disclose the Deposit to any third party and shall
keep the Deposit confidential.
