XXXXXX.XXX
SECURE NETWORK SERVICE AGREEMENT
(MISSION CRITICAL RECOVERY)
This secure Network Services Agreement is between Cavion Technologies,
Inc., a Colorado corporation doing business as xxxxxx.xxx ("Cavion"), and
Mission Critical Recovery ("Client"), Cavion offers a variety of data
connectivity services ("Network services") through Cavion's CU/Net-Registered
Trademark- network. CU/Net is a secure interactive network for electronic
communications and commerce among credit unions, their members, leagues,
service organizations and vendors of services to credit unions. This
agreement governs Client's use of CU/Net and the network services selected on
the attached Services Schedule.
It is agreed as follows:
1. SERVICES. Client subscribes for the network services selected on the attached
Services Schedule. Cavion will contract with local telecommunications provider
to establish and maintain a connection from Client's data processing and
associated equipment ("Client's equipment) to CU/Net. Upon mutual agreement of
the parties, the Services Schedules may be added at any time to add or reduce
services or telecommunications bandwidth.
2. FEES. The fees for access to CU/Net and for each network service are as
described in the Services Schedule. In addition to the listed fees, Client will
pay any applicable sales, use, value-added, personal property or similar taxes,
Monthly recurring fees will begin upon commencement of service, and are due upon
receipt of invoice from Cavion. Fees for additional services or
telecommunications bandwidth will begin upon commencement of the new or upgraded
service. Fees may be increased for any renewal term of this agreement, upon
notice to Client at least 60 days prior to the end of the current term. Fees may
also be increased on an annual basis to reflect changes in the All-Urban
Consumer Price Index as published by the Bureau of Labor Statistics with 120
days notice to client. Failure to pay any fees on time may result in suspension
of service.
3. SET-UP OF THE SERVICES.
3.1 Any network servers, routers and other equipment paid for by Client as part
of the monthly fees are described in the attached Equipment Schedule. This
equipment belongs to Cavion. All equipment associated with CU/Net and Client's
connection to CU/Net is owned or leased by Cavion, whether located at a Client
facility or a Cavion facility. Client is responsible for wiring at Client's
facility, with assistance from Cavion engineering staff.
4. NETWORK OPERATIONS.
4.1 Client is solely responsible for providing support to its clients regarding
their use of CU/Net and the network services.
4.2 Cavion will provide telephone support to Client during regular business
hours at the nearest Cavion staffed facility. Emergency support is available 24
hours per day, 365 days per year. Cavion will maintain, administer and upgrade
the network as appropriate (in Cavion's judgment) for effective network
operations. Should an upgrade of the Network require upgrade of client's
equipment or software to remain compatible, the upgrade of Client's equipment or
software to remain compatible, the upgrade of Client's equipment or software
will be Client's responsibility.
4.3 Cavion will maintain the network connection equipment provided to Client's
facility under this agreement. However, Client is responsible for maintaining as
appropriate operating environment and restricting access to the connection
equipment. Cavion relies on Client to promptly notify Cavion of any problem
affecting Client's connection to the network, and to cooperate with Cavion
(including providing access to Client's facility and technical personnel) as
needed to correct any such problem.
4.4 CU/Net uses standard telecommunication links and standard network server
technology. While expected to be minimal, unscheduled temporary service
disruptions cannot be completely eliminated. Network service will also be
limited or interrupted from time to time for scheduled maintenance, network
expansion, upgrades or other administrative purposes. Cavion will make
commercially reasonable efforts to notify clients in advance of scheduled
downtime, and to limit scheduled downtime to off-peak hours.
4.5 Cavion reserves the right to monitor CU/Net traffic as appropriate (in
Cavion's judgment) for proper operation of the network and as otherwise required
or permitted by law. However, Cavion does not have the practical ability to
control the conduct of users of the network and assumes no liability for such
conduct.
5. STANDARDS OF USE. Client will use CU/Net and the network services, and will
permit the use of CU/Net and the network services, only in a manner that is
lawful, consistent with the rights of other users and third parties, in keeping
with accepted internet etiquette, and not disruptive to the operations of the
network. Client will provide access to the network only to its employees,
independent contractors and examiners, and only from equipment located at
Client's facilities. Client will communicate the restrictions described in this
section to anyone to whom it provides access. Vendors who use the network to
provide services to Client or its members must do so by agreement with Cavion.
Client agrees to comply with any rules and policies posted on CU/Net's web
server that are generally applicable to users of CU/Net or a network service.
Material breach of this section will cause for immediate suspension of service
or termination of this agreement.
6. SECURITY. Cavion will take commercially reasonable steps in ensure that
network services sessions accessed from the internet, and CU/Net interfaces to
the Internet, are protected using network firewalls, encryption, and/or other
appropriate security measures. Client is responsible for (a) the security of
network equipment located at Client's facility, and (b) safeguarding any
passwords or other validation information resigned to Client or Client's users.
In addition, while the private telecommunication circuits between Client
facility and CU/Net provide physical security for Client's unencrypted network
traffic, these circuits are owned and operated by
telecommunications providers and Cavion does not guarantee their security.
7. LIMITED WARRANTIES.
7.1 Except as described in section 4.4, CU/Net will be online and available 24
hours per day, 365 days per year. Each network service will be capable of
performing the functions described in the online documentation associated with
the service, for the term of this agreement, provided the service is used with
an approved web browser and otherwise in accordance with the documentation.
Cavion does not guarantee that operation of CU/Net or the network services will
be uninterrupted or error-free. Cavion is not responsible for network
unavailability caused by Client's equipment, equipment of Client's customers,
telecommunications circuits or the Internet. Client is responsible for
___________________ which of the telecommunications circuits offered by CU/Net
will be used, and for the adequacy of the telecommunications circuit to carry
Client's traffic over CU/Net.
7.2 Claims for breach of this warranty should be submitted in writing, including
as much detail as possible concerning the circumstances of the problem. If
Cavion is unable to correct the problem (with Client's cooperation) within 30
days, Cavion will refund the monthly charges relating to the service in which
the problem is experienced, promised for the affected period.
7.3 This section sets forth Cavion's exclusive warranties with respect to the
performance of CU/Net and the network services. Cavion DISCLAIMS ANY OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OR MERCHANTABILITY,
FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, AUTHORITY OR NON-INFRINGEMENT. These
warranties are exclusively for the benefit of Client, and are not transferable
without Cavion's prior written consent.
8. LIMITATION OF LIABILITY. Client is exclusively responsible for all financial
risks associated with access to and use of CU/Net and the network services by
Client's customers, including validation of all transaction. In no event will
Cavion be liable for lost data, lost profits, or any other incidental,
consequential or exemplary damages. In no event will Cavion's liability for any
claim related to this agreement exceed the amount paid by Client under this
agreement during the six months prior to the claim, except in the case of
Cavion's gross negligence or willful misconduct.
9. OWNERSHIP AND LICENSE.
9.1 "Cavion Technology" means all inventions, designs, software and
intellectural property of any kind used in the operation of CU/Net and the
network services, including all portions and complete or partial copies thereof,
all ____________, modifications and enhancements thereof, and any documentation
associated therewith. "Cavion technology" does not include Client's lost data
processing software. Cavion owns or licenses from third parties all Cavion
technology.
9.2 Cavion hereby grants to Client, during the term of this agreement and
subject to the provisions of this agreement, a nonexclusive nontransferable
license (a) to use the Cavion technology (other than the network services
software) for the purpose of connecting to, and transmitting and receiving data
across the network as contemplated by this agreement, and (b) to use any network
services software subscribed and paid for under the Services Schedule to access,
employ and make available to Client's members the corresponding network
services. This license does not include rights to (a) use the Cavion technology
for any other purpose, (b) modify, translate, or merge any network services
software with another program, (c) create a ___________ work based on the Cavion
technology, or (d) sublicense or transfer the Cavion technology to any third
party (except for the implied sublicense to Client's members to use the network
services as contemplated by this agreement). Client will not reverse-engineer,
disassemble, decompile, or make any attempt to discover the source code of the
network services software. Client will not copy the network services software,
except for temporary browser-embedded copies as required to run the software.
All rights not explicitly granted to Client under this section are reserved to
Cavion.
9.3 Cavion hereby grants to Client, during the term of this agreement and
subject to the provisions of this agreement, a nonexclusive, nontransferable
license to use the CU/Net name and any materials concerning CU/Net provided by
Cavion, for the purpose of promoting the network and the network services.
10. CONFIDENTIALITY.
10.1 "Confidential Information" means any and all confidential business
information concerning either party that is disclosed to the other party in
connection with this agreement, including all confidential information disclosed
to Client concerning Cavion technology and including the terms of this
agreement. Any confidential financial information of Client's members to which
Cavion has access as network administrator will be treated as confidential
information of Client. "Confidential information" does not include information
which the recipient can show (a) is public (other than through the recipient's
actions), (b) was rightfully disclosed to the recipient by a third party, or (c)
was independently developed by the recipient, information that is not otherwise
confidential will not be treated as confidential merely because it is disclosed
under this agreement.
10.2 Each party (and its employees and agents) (a) will use the same degree of
care (and at least a reasonable degree of care) to prevent the unauthorized
disclosure or use of confidential information as __________ to protect its own
confidential information of a similar nature, and (b) will immediately notify
the disclosing party upon discovery of any loss, unauthorized disclosure, or
unauthorized use of confidential information.
10.3 Upon termination of this agreement, or at any time upon the request of the
disclosing party, the recipient will promptly return or destroy all confidential
information in any form (including computer media), and the recipient will not
retain any copies of confidential information in any form. Notwithstanding the
proceeding sentence. Cavion may keep archival copies of network traffic as
required in Cavion's discretion for proper operation of the network. Cavion will
not be required to return or destroy those copies, but will continue to treat
them as confidential information under this section as long as they are
retained.
10.4 Any breach of this section will cause the disclosing party irreparable harm
for which it cannot be adequately compensation in damages. The disclosing party
will therefore be entitled, in addition to any remedies otherwise available, to
injunctive and other equitable relief, without posting bond, to enforce this
section and to prevent any breach of this section. The provisions of this
section will survive termination of this agreement for the longest of the
following: (a) two years, (b) in the case of archive copies or described in the
preceding subsection, any period for which Cavion retains such copies or, (c) in
the case of any trade secret, as long as such information remains a trade
secret.
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11. INDEMNITIES. Each party indemnifies the other (and its affiliates and
agents) against all loss, liability or expense (including reasonable attorney
and witness fees and expenses) arising out of any claim that materials of the
indemnifying party infringe the patent, copyright, trademark or trade _________
rights of any third party. For this purpose, "materials" of a party means any
technology or content supplied by that party for use or publication on the
network or the internet. Client Indemnifies Cavion (and its affiliates and
agents) against all loss, liability or expense (including reasonable attorney
and witness fees and expenses) arising out of any use of the network, the
network _________ or the internet by anyone to whom Client provides access, in
each case, the indemnity is subject to the conditions that:
(a) the indemnifying party is notified of the claim in a timely manner;
(b) the indemnified party provides all reasonable assistance to defend
against the claim at the indemnifying party's expense; and
(c) the indemnifying party is given control of the defense and settlement.
If any materials are held or are believed by the indemnifying party to infringe,
the indemnifying party will have the option, at its expense, to (a) modify the
materials to be non-infringing, (b) obtain for the indemnified party the right
to continue using the materials, or (c) terminate the use of the materials under
this agreement. The provisions of this section will survive termination of this
agreement for a period equal to the statute of limitations governing the
indemnified claim, and will continue to apply to any claim filed within that
period.
12. TERMS AND TERMINATION.
12.1 The term of this agreement will be for five years from the date hereof.
Thereafter, this agreement will automatically renew for additional one year
periods unless (a) terminated by either party by notice at least 60 days prior
to the renewal date, or (b) replaced by a new agreement governing access to
CU/Net and the network services.
12.2 During the first 90 days of the initial term, Client may terminate this
agreement upon notice to Cavion, if (a) Client is dissatisfied in any material
respect with the performance of CU/Net or the network services, and gives notice
to Cavion specifying the nature and circumstances of the dissatisfying
performance with as much detail as practical, and (b) Cavion (with Client's
cooperation) has not resolved the issue to Client's satisfaction within 60 days
after the notice of dissatisfaction.
12.3 Either party may terminate this agreement upon notice to the other:
(a) if the other party materially breaches any of its obligations under
this agreement and such breach is not cured within 60 days after
notice thereof; or
(b) if insolvency proceedings pursuant to any federal or state law are
filed by the other party, or are filed against the other party and not
dismissed within 60 days, if substantially all of the assets of the
other party are transferred to an assignee for the benefit of
creditors, a receiver or a trustee in bankruptcy; if the other party
is adjudged bankrupt; or if the other party ceases to carry on
business.
12.4 Termination of this agreement will not be exclusive of any other remedy
available under this agreement or applicable law. Upon termination, each party
will promptly make any payments owed to the other party. Cavion will reasonably
cooperate with Client in the transfer of Client's domain hosting. If any,
Monthly network services fees will not be prorated. Access to the network and
network services will be discontinued upon termination. Within 30 days after
termination, each party will return (or will provide reasonable access to its
facilities for the other party to retrieve) any equipment in its possession that
belongs to the other party.
13. DISPUTES. Except as otherwise agreed, any disputes concerning this agreement
will be resolved as follows:
13.1 If either party believes that a dispute cannot be resolved by informal
negotiation, the matter will be submitted to mediation. The parties will agree
upon a neutral impartial mediator experienced in the field of interactive
electronic networks. At the commencement of the mediation, the parties will
agree upon (a) a procedure for exchange of information related to the dispute,
and (b) ground rules and a schedule for conducting the proceeding before the
mediator.
13.2 If a dispute is not settled pursuant to mediation within the agreed time
period, or if any party will not participate in the mediation, the dispute will
be submitted to binding arbitration in Denver, Colorado, in accordance with the
rules of the CPR Institute for Dispute Resolution. The arbitration will be by a
single arbitrator (or, if the amount in controversy is greater than $30,000, by
three arbitrators, none of whom will be appointed by either party) experienced
in the field of interactive electronic networks. The arbitration will be
governed by the United States Arbitration Act, and judgment upon the award
damages in excess of actual damages, but will be empowered (now required) to
require any party to pay the reasonable attorney fees, expert witness fees, and
other arbitration costs of any other party.
13.3 Except as specified in section 11.4, the procedures described in this
section will be the exclusive procedures for the resolution of disputes;
provided, however, that either party may seek preliminary judicial relief in
Denver, Colorado. If in the judgment of that party such relief is necessary to
avoid irreparable damage. Despite the initiation of any such judicial
proceedings, the parties will continue to participate in good faith in the
mediation or arbitration. Any cause of action either party may have with respect
to this agreement will be barred unless it is commenced within one year after
the cause of action arises, is discovered, or should have been discovered with
the exercise of reasonable diligence.
14. GENERAL.
15.1 The parties are independent contractors. Neither party is an agent or
partner of the other, or has the right to incur any obligation on behalf of the
other. Each party may use the other's name and trademarks only with the other's
prior written consent (except that Cavion may use Client's name in any listing
of CU/Net clients). Upon termination of this agreement, all use of such names
and trademarks will immediately be discontinued, and each party will return to
the other all promotional materials and other items bearing the other's name or
trademarks that are in its possession.
15.2 Neither party will be liable for any delay or failure in its performance
under this agreement (except for payment obligations) directly or indirectly due
to acts of _____ other party
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or its agents, or to cause beyond the control of the delaying party (including
equipment failure, utility failure, casualty, emergency conditions, acts of
governmental authorities, labor disputes and acts of suppliers,
telecommunications providers or other third parties).
15.3 Notices under this agreement will be in writing and will be effective when
resolved by certified mail, overnight courier or hand delivery to the address
set forth below (as may be changed from time to time by written notice). Refusal
to accept delivery will be deemed receipt.
15.4 This agreement will be binding upon the assigns and successors in interest
of Cavion and Client. Either party may assign this agreement to an affiliate, or
as collateral for financing purposes, and Cavion may assign this agreement to a
purchaser of CU/Net, without the consent of the other party. Neither party may
otherwise assign this agreement without the other party's written consent, which
will not unreasonably be withheld.
15.5 This agreement is governed by the laws of the State of Colorado. No
provisions of this agreement may be waived or modified except in writing signed
by Client and Cavion. This agreement (including the Services Schedule as
modified by the parties from time to time) is the entire agreement between the
parties as to it subject matter, and supersedes any other communications between
the parties. This agreement may be executed in counterparts, each of which will
constitute an original. If any provision of this agreement is found to be
invalid or unenforceable, such provision will be modified (in the effected
jurisdiction) to the minimum extent required, and the remainder hereof will not
be affected.
IN WITNESS WHEREOF, the parties have executed this Secure Network Services
Agreement as of the date written below.
MISSION CRITICAL RECOVERY [CLIENT] CAVION TECHNOLOGIES, INC.
By: By:
------------------------------------ -------------------------------------
Title: Title:
--------------------------------- ----------------------------------
Address: Address:
Mission Critical Recovery Cavion Technologies, Inc.
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0000-0 Xxxx Xxxx Xxxx 0000 Xxxxx Xxxxxx, Xxxxx 000
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Xxxxxxxxxxxx, XX 00000 Xxxxxx, Xxxxxxxx 00000-0000
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Attn: President/CEO Attn: President
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Fax: 000-000-0000 Fax: 000-000-0000
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Voice: 000-000-0000 Voice: 000-000-0000
---------------------------------------
Date:
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SERVICES SCHEDULE TO
XXXXXX.XXX
SECURE NETWORK SERVICES AGREEMENT
1. DESCRIPTION OF SERVICES
Client subscribes for the network services indicated by checking the boxes
below:
SECURE ISP SERVICES (INCLUDES - WEB SITE HOSTING AND UNLIMITED EMAIL) This
service provides unlimited Internet access for Client and Client's
employees, at the bandwidth selected by Client. The service includes access
to CU/Net, network address translation, unlimited e-mail for Client's
employees, and (if applicable) hosting of Client's web site, Upon request.
Cavion will register Client's domain name, and will refer Client's web site
design to a web site design consultant.
X. CU/NET
With CU/NET, Client gains access to any credit union on the network. Access
is provided, using the credit union's existing connection to CU/NET.
SECURE FORMS SERVER
This service enables Client's members to provide encrypted data (such as
loan or credit applications) using online forms in a secure area of
Client's web site, Cavion's secure forms server is firewall protected.
SECURE INTERNET TRANSACTIONAL BANKING SERVICES
This services enables Client's members to retrieve account information and
perform a variety of interactive account transactions via the Internet.
Cavion's secure transactional banking service is double firewall protected.
INTERNET BANKING "PULL" ADVERTISING
This service enables Client to target online advertising of specific
services to members not currently using those services, as part of Client
Internet Transactional Banking user interface.
SECURE INTERNET XXXX PAYMENT SERVICES
This service enables Client's members to set up and modify online xxxx
payment through a third party settlement agent, via the Internet. Cavion's
secure internet xxxx payment service is firewall protected.
KIOSK SOFTWARE
This service allows Client to set upon remote kiosks (with hardware
provided by a third party vendor) to provide general service information
concerning Client, or to provide member account information and enable
interactive account transactions.
SHARE DRAFT PROCESSING
This service allows Client to transmit share draft in-clearing data, via a
secured, dedicated 128K frame relay communications circuit, to xxxxxx.xxx
for retrieval by credit unions or their processor.
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2. PRICING SUMMARY
Client agrees to pay the following fees in connection with the Secure Network
Services Agreement:
ONE-TIME ANNUAL MONTHLY
CU/NET@$12K
Installation, Set-up, Hardware
& CUINET Membership Fee: Waived
Monthly Access Charge for CU/NET $940.00*
Connection @512K: plus $50 per
CU accessed
Total One-Time Cost For $-0-
Mission Critical Recovery:
Total Annual Cost for $-0-
Mission Critical Recovery:
Total Monthly Cost for $940.00*
Mission Critical Recovery: (+ $50 per CU)
Total ___________________ and Waived
Fees: $15,550.00
Total Cost Due At Contract Signing $-0-
$12K:
Half of One-_______ and Annual
Charges
*Monthly recurring charges will begin and be invoiced as services are
activated.
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ELECTRONIC DATA VAULTING
This agreement reflects discounted pricing for products/services being
provided by xxxxxx.xxx to MCR. In exchange for this discount, MCR agrees
to provide Cavion with electronic data vaulting services, at no charge, so
long as the amount of online data files being archived does not exceed 20
Green Bay of compressed data. If Cavion's online data archiving
requirements exceed 20 GB will prepare a proposal, for Cavion's
consideration, specifying the cost of any needed data archiving capability
above the 20 GB provided at no charge under this agreement.
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EQUIPMENT SCHEDULE TO
XXXXXX.XXX
SECURE NETWORK SERVICES AGREEMENT
Client's set-up fees described in the Services Schedule include purchase
of the equipment described below:
CU/NET @ 512K:
Cisco 1601 Dual Ethernet/Serial Router
Cisco Power Cord, 110V
Cisco 1600 Series IOSIP Plus
Cisco 8MP to 10 MB DRAM Upgrade
V.35 Cable, DTE Male to Smart Serial, 10 Ft.
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