EXHIBIT 10.5
K I R C H M A N C O R P O R A T I O N
THE LEADER IN BANK AUTOMATION
Dimension License Agreement
Xxxxxxxx Corporation ("KC") has developed and owns a software package with
corresponding services known as "Dimension" (version identified
hereinafter) as more fully described in the "operating manuals" (including
"Banker's Reference" and "Dimension Procedures"); and "Customer"
(identified hereinafter) desires to acquire from KC a nonexclusive license
("License") to use Dimension and KC desires to grant such License to
Customer ("Licensee"), according to the following terms and conditions:
1. LICENSE
KC grants to Customer and Customer accepts from KC, a License to use the
object code form of Dimension; operating manuals; and all future
modifications, enhancements, supplements, and alterations ("KC Property")
solely for the data processing needs of Customer and any other entities
existing or acquired ("Dimension User") for which Customer provides data
processing services utilizing KC Property. Customer may upgrade a change
to any computer or computer operating system supported by KC. This License
is for use of Dimension as processed at the computer center address
indicated hereinafter, unless Customer requests in writing, 30 days in
advance, to move computer center to a new location, at which time the new
location will become the location of record. In the event of a disaster,
Customer has the right to move KC Property to a disaster recovery site, on
a temporary basis and agrees to notify KC as soon as possible after the
move. Customer may operate Dimension in multiple locations by notifying KC
in writing of such location(s) at which Dimension will be processed.
2. TERMS OF AGREEMENT
Terms of this "Agreement", unless earlier terminated. according to the
provisions hereinafter, shall be as follows:
(a) This Agreement and the License granted herein are for a term
beginning on "Effective Date of Agreement and continuing for an
"Initial Term" (indicated hereinafter) from end of "Installation
Period." Effective Date means date on which KC executes Agreements.
Installation Period shall extend from Effective Date until the
earlier of (i) end of month in which Dimension is installed, or (ii)
180 days from Effective Date of this Agreement If this Agreement
replaces and supersedes an existing agreement (identified
hereinafter), Effective Date of this Agreement will be as indicated
hereinafter.
(b) This Agreement and License will be automatically renewed for
additional five-year periods unless either party notifies the other
in writing six months or more in advance of expiration date of this
Agreement or any successive five-year renewal period, of its desire
not to renew this Agreement.
3. SOURCE CODE ESCROW
For Customer's protection, KC has entered into an audited "Escrow
Agreement" with an "Escrow Agent" to keep (on deposit) a current copy of
the source code and operating manuals for Dimension. Upon completion of
installation of Dimension, KC will supply Customer with a copy of Escrow
Agreement, and designate Customer to Escrow Agent as Licensee.
4. INSTALLATION, CONVERSION, AND ACQUISITION/MERGER SUPPORT
(a) KC shall assist Customer with installation of Dimension and
conversion of data to Dimension upon completion of session(s)
described in subparagraph (b) below, and shall also undertake to
assist Customer with conversion of data to Dimension for any
Dimension User acquired or processed by Customer. KC shall use
reasonable efforts to effect such installation of Dimension within
one hundred
Page 1 of 6
twenty (120) days after date on which Customer's personnel complete
session(s) described below; but except as set forth below, KC shall
not be liable for any damages, direct consequential, special, or
otherwise, to Customer or to any other person in the event that
Dimension is not installed within such time period for any reason.
(b) To ensure the smooth and expedient installation of Dimension,
a Dimension planning session shall be held. Customer shall involve
senior management level personnel in session, including Customer's
Chief Executive Officer ("CEO").
(c) KC guarantees to complete installation by a mutually established
installation date, or KC shall defer the commencement of any annual
"License Fees" (defined hereinafter) for three full months from
installation date.
(d) Should KC be prevented from meeting the mutually established
installation date through fault of Customer, Customer shall pay KC an
additional fee not to exceed the "Initial Fee" (defined hereinafter).
(e) Should Customer request additional on-site KC personnel assistance in
connection with installation, services will be billed at KC's then
current standard rates.
5. SUPPORT SERVICES
KC commits to provide, during term of this Agreement, certain "Support
Services" and Dimension enhancements as follows:
(a) KC will provide software and operating manuals.
(b) Customer acknowledges that the policy of KC is to provide
improvements, to maintain timely applicability and competitive
marketability of Dimension, to comply with state and federal
government regulations applicable to data utilized in Dimension, to
modify Dimension to be compatible with the most current level of
computer and computer operating systems, and to make changes to
enhance operation or performance of Dimension. Therefore, KC reserves
the right to make changes required to maintain Dimension as current,
competitive, and marketable as part of its services hereunder, KC
will provide to Customer, at KC's expense, enhancements and operating
manual changes resulting from the aforementioned. These improvements
and error corrections to Dimension ("Dimension Release(s)") will be
distributed in a format that facilitates timely implementation by
Customer.
(c) KC will support the most recent Dimension Release during term of this
Agreement, regardless of how much time has elapsed since its delivery
to Customer by KC.
(d) KC will make its personnel available 24 hours a day for telephone
consultation or computer-to-computer diagnosis relating to Dimension
or use of Dimension, at no additional service charge to Customer.
(e) To provide responsive assistance to Customer's request for Dimension
problem resolution, KC may require written supporting documentation
and details to substantiate such problems prior to attempting a
resolution.
6. CUSTOMER RESPONSIBILITIES
(a) Add to KC Property all Dimension Releases and distribute Dimension
Procedures to all personnel.
(b) Provide such equipment as may be necessary to install Dimension and
immediately implement all Dimension Releases. Failure of Customer to
install any Dimension Release shall relieve KC of any responsibility
or liability for any improper operation or malfunction of Dimension
resulting from Customer's failure to install and operate the most
current Dimension Release.
Page 2 of 6
(c) Provide at Customer location a telecommunications link with KC
computers as described in operating manuals.
(d) Deliver to KC an executed "Dimension License Addendum," in the form
and substance acceptable to KC, in its sole discretion, for each
Dimension User to be processed on Dimension by Customer.
(e) Certify in writing, within 10 days of KC's written request, "Total
Assets" of Customer and Dimension Users in order to ensure accurate
billing of License Fees.
7. LICENSE FEES
During term of this Agreement and any subsequent renewal term, certain
License Fees will be payable to KC at its principal place of business
listed on this Agreement, in accordance with the following provisions:
(a) Initial Fee: Due with submission of this Agreement, executed by
Customer, in amount indicated hereinafter.
(b) Additional Installations: If Customer wishes to add additional
Dimension Users or convert and/or merge additional banks/branches,
Customer shall pay the then current Initial Fee(s).
(c) Upgrade Fee: If Customer wishes to upgrade to another KC System, an
Upgrade at the then current rate will be applicable.
(d) License Fee: The first annual installment of License Fee shall be
due with submission of this Agreement. License Fee shall be payable
thereafter in advance, in annual installments each year of Initial
Term due on first day of month following anniversary of Installation
Period. If this is a renewal Agreement or for any extended term of
this Agreement, License Fee shall be due and payable in advance in,
annual installments starting on Effective Date or first day of any
extended term. License Fee shall be computed by multiplying the Total
Assets (in millions) of Customer and Dimension Usages by "Applicable
Rate". Total Assets shall mean as of "Measurement Date," (i) in the
case of a bank, its total assets determined in accordance with
generally accepted accounting principles, or (ii) in the case of an
entity which is not a bank. total amount of assets which represent
accounts being processed. Total Assets shall include assets of any
Dimension User as of first day of the calendar month immediately
following installation of Dimension for any such Dimension User or an
acquired/merged bank after the annual billing date on a pro rata
basis. Measurement Date shall end as of the calendar quarter
immediately preceding each due date of License Fee. Applicable Rate
is calculated according to following formulas: (1) for Customers with
Total Assets under $1 billion, Applicable Rate will equal $285 -
(asset size in millions x .085), (2) for Customers with Total Assets
from $1 billion up to $4 billion. Applicable Rate will equal $200 -
[(asset size in millions - 1,000) x .002], (3) for Customers with
Total Assets from $4 billion up to $15 billion, Applicable Rate will
equal $194 - [(asset size in millions - 4,000) x .004], (4) for
Customers with Total Assets from $15 billion to $30 billion,
Applicable Rate will equal $150 - [(asset size in millions -
15,000)x.002], (5) for Customers with Total Assets over $30 billion,
Applicable Rate will remain at $120 per million. KC shall have option
to increase Applicable Rate, effective each year, by no more than the
most recently reported annual percentage increase in the Consumer
Price Index as published by the Bureau of Labor Statistics (U.S.
Department of Labor). Should this Agreement be renewed, Customer
agrees that the associated Licensee Fees will be computed at the same
rate then currently charged by KC to its new customers as of the
first day of renewal period.
(e) XXXXX Fee: A fee of $595 per person shall be due and payable each
February 1 for the XXXXX Annual Conference(s), and shall be based on
Customer and each Dimension User separately. Minimum billing each
calendar year for each organization shall be determined by reference
to the Total Assets of Customer and each Dimension User as follows:
$1 -100 million: 2 people; $101 -300 million: 3 people; $301-500
million: 4 people; $501-750 million: 5 people; and, $751 million and
up: 6 people. Additional attendees (over minimum billing) to the
XXXXX Annual Conference(s) shall be billed at a $395 rate.
Page 3 of 6
(f) Ancillary Services: Any ancillary services performed by KC, at
Customer's request will be performed by KC at its then current rates.
(g) Taxes: Payment for any applicable taxes associated with Customer and
the aforementioned fees is due on same date as related fees. Customer
shall also pay KC any penalties and interest resulting from
Customer's failure to pay any applicable taxes.
8. MONEY BACK GUARANTEE AND WARRANTY
For a period of twelve (12) months from the end of Installation Period, KC
warrants that Dimension will perform in the manner described in Banker's
Reference; or KC shall refund Initial Fee paid for Dimension upon
Customer's return of KC Property, and License shall be terminated as of
return date of KC Property. Except for the foregoing, KC makes no
warranties, either expressed or implied, with respect to Dimension or
Banker's Reference, and the WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY DISCLAIMED. KC makes no
representation as to the adequacy of Customer's existing or proposed
hardware configuration.
9. TITLE TO DIMENSION AND PROTECTIVE COVENANTS
Customer acknowledges that KC Property is owned by KC, and that neither
legal or equitable title to KC Property passes to Customer under terms of
this Agreement. In turn, KC agrees to indemnify, defend, and hold Customer
harmless from any U.S. patent or copyright infringement claims arising out
of Customer's use of KC Property.
Customer further acknowledges that KC Property constitutes a valuable
asset and trade secret of KC, and any information with respect thereto is
confidential, and use or disclosure of KC Property in a manner
inconsistent with this Agreement may cause KC irreparable damage. Customer
shall therefore, immediately notify KC of any information which comes to
Customer's attention which does or might indicate that there has been any
loss of confidentiality of KC Property. Customer shall take all reasonable
steps within its power to limit any threat of loss of confidentiality with
respect to KC Property. Accordingly, Customer agrees as follows:
(a) Assignment: Customer shall not sell, lease, transfer, or assign its
stewardship of KC Property; or its interests, rights, or
responsibilities as Licensee to any third party, except as approved
in writing by KC, to facilitate the transfer of control of Customer
by sale of stock, merger, or consolidation. Similarly, Customer shall
not offer, disclose, or make available to any third party, either
gratuitously or for consideration. any modification to KC Property
which may be designed by Customer.
(b) Nondisclosure: Customer shall not disclose or permit duplication and
release of confidential information relating to KC Property to
unauthorized employees or third parties, except as a part of standard
computer industry backup procedures, or as required for auditing
purposes by independent certified public accountants, or as required
for compliance with governmental regulatory authorities.
Communication by Customer with third parties regarding Customer's
evaluation of KC Property, Dimension performance, or Support
Services, is not considered prohibited communication under this
paragraph.
(c) Dimension Integrity: For Customer's protection and to ensure
Dimension's integrity, which is necessary to enable KC to provide
Support Services, Customer agrees not to disassemble, decompile,
reengineer, or otherwise translate any part of KC Property.
10. LIMITATION OF LIABILITY
Liability of KC to Customer for any liability, loss, damage cost, or
expense to Customer ("Liability") arising from any breach or default by KC
of any warranty, covenant, agreement, or undertaking hereunder shall be
exclusively limited to actual direct damages incurred by Customer, but in
no event or events, shall the aggregate of Liability exceed the total of
any Initial Fee(s) paid, under this
Page 4 of 6
and/or any previous agreement(s), if this is a renewal, for Dimension, nor
under any circumstance shall Liability include any incidental or
consequential damages which may be suffered by Customer.
11. TERMINATION
(a) This Agreement shall not be terminable by either party during Initial
Term or during any renewal period thereof except as provided herein
this Agreement
(b) Upon failure of Customer to certify Total Assets of Customer and each
Dimension User or pay any sums due hereunder within 10 days of
receipt of written notice from KC that such sums have not been paid
when due, at the option of KC, the License will terminate. In that
event, or upon termination of the License for customer breach or any
other reason, without prejudice to any other rights KC may have
herein or at law or equity, Customer shall, within 180 days after
receipt of notice of termination of License, cease any and all use of
Dimension and return to KC all KC Property. Additionally, Customer
shall pay all License Fees remaining through end of current term.
Customer agrees upon termination to allow KC to inspect Customer's
operations during regular and reasonable business hours to ensure
that Customer has complied with its obligations under this
paragraph.
(c) Upon termination of this Agreement and the License granted herein, KC
shall provide Customer and any Dimension User reasonably necessary
deconversion assistance at KC's then current rate for such services.
(d) Upon termination of this Agreement and the License granted herein, KC
shall provide Customer and any Dimension User reasonably necessary
deconversion assistance at KC's then current rate for such services.
12. REMEDIES
(a) It is agreed that any dispute arising between the parties shall
be resolved by a senior officer of each party. If the dispute cannot
be resolved at this level, CEOs of both parties shall resolve the
dispute. If the dispute cannot be amicably resolved at the CEO level
it shall be submitted to an arbitration tribunal consisting of a
senior officer of each party and a third arbitrator registered with
the American Arbitration Association, but in no case shall this
tribunal award monetary damages that exceed those specified in this
Agreement.
(b) Customer agrees that, in event of termination, or any actual or
threatened breach by Customer, or any unauthorized use, sale,
transfer, cc disclosure of KC Property as contained in paragraph 9
herein. monetary damages alone shall riot or may not be sufficient
remedy or protection for KC. Therefore, KC shall be entitled to such
injunctive or other equitable relief to may be deemed proper or
necessary by a court of competent jurisdiction.
13. EXPENSES, COSTS OF COLLECTION, AND INTEREST
KC shall have the right to collect from Customer reasonable expenses,
including attorneys' fees, that KC incurs in enforcing any of its rights
or remedies under this Agreement, including cost of collecting any sums
payable to KC by Customer. Any monies not paid when due shall bear
interest at the rate of 1 1/2% per month from due date until paid. No
failure of KC to demand when due either (i) any installment, tax. fee, or
other sum, or (ii) any other performance or obligation of Customer shall
be deemed a waiver by KC of the obligation of Customer to pay any such sum
or to perform any such obligation.
14. NOTICES
Notices sent to either party as required under this Agreement shall be in
writing and sent via certified mail to the address listed herein in this
Agreement.
Page 5 of 6
15. GOVERNING LAW
This Agreement and performance hereunder shall be governed by and
construed in accordance with the laws of the State of Florida. In the
event of any legal or equitable action arising under this Agreement,
Customer agrees that jurisdiction and venue of such action shall lie
exclusively within either the state court of Florida, located in Seminole
County, or the United States District Cow for the Middle District of
Florida, Orlando Division, and Customer specifically waives any other
venue and submits to such jurisdiction.
16. SEVERABILITY
Provisions of this Agreement are severable, and in the event that any
provision herein is held by any court to be void, voidable, or
unenforceable, such provision shall be deemed stricken from this
Agreement. All other terms and conditions shall remain in full force and
effect, and the parties agree to remain bound by and perform in accordance
with the terms herein, as so amended.
17. ENTIRE AGREEMENT
This Agreement constitutes entire agreement between parties herein
mentioned and supersedes all prior understandings and agreements between
them regarding License and/or those of Dimension W KC Property, and may
not be modified or altered except by written instrument duly executed by
Chairman of the Board of KC and an authorized officer of Customer. No
waiver by KC of any condition, performance, or obligation of Customer
shall be deemed a waiver with respect to the same condition, performance,
or obligation at any other time.
Customer Republic National Bank In Witness Whereof the parties hereto have caused this
Agreement to be executed as of the dates indicated
Address (if different from the Computer Center Customer:
Address)
By:___________________________________ Date: 11/07/97
0000 Xxxxx Xx Xxxx Xxxxxxxxx Authorized Signature of Customer
---------------------------------------------------------
Xxxxx Xxxxxxxx, Xx. - Chairman and CEO
Xxxxx Xxxxxx, Xxxxxxx 00000 --------------------------------------------------------
--------------------------------------------------------- Name/Title (Type or Print)
00 Xxxxxxxxx 00xx Xxxxxx
---------------- --------------- ---------------------- --------------------------------------------------------
Agreement Number Customer Number Total Assets Computer Center Address
Five $262,125 $298,500 Xxxxx, XX 00000
---------------- --------------- ---------------------- --------------------------------------------------------
Initial Term (Yrs) Initial Fee First Annual License Fee
---------------------------------------------------------
(not including applicable taxes)
N/A 6541 XXXXXXXX CORPORATION,
-------------------------- --------------------------- 000 Xxxx Xxxxxxxxx Xxxxx - Xxxxxxxxx Xxxxxxx, XX 00000
Effective Date (if renewal) Previous Agreement Number
(if renewal)
October 29, 1997 Dimension By: Date
-------------------------- --------------------------- ------------------------ ---------------------
Date Mailed by KC Dimension Version Authorized Signature
Page 6 of 6
The following is an addendum, which is incorporated and made a part of the
Dimension License Agreement attached hereto between Republic National Bank of
Miami ("Republic") and Xxxxxxxx corporation ("Xxxxxxxx") .
1. The system that is being installed in Republic is referred to as either the
Dimension or Dimension 3000 product. Dimension is currently Year 2000
compliant.
2. The currently planned installation date is the latter part of August 1998.
This date and customer responsibilities will be finalized and agreed to at
the Executive Overview Session. Republic shall not be in violation of
Section 2, paragraph (a) item (ii) of the Dimension License Agreement
provided the finalized date determined at the Executive Overview Session is
prior to September 7, 1998.
3. It is Xxxxxxxx'x commitment to interface the third party systems that are
interfaced into Republic's existing core banking software, including the
CSI and CheckFree products. These interfaces will be further defined at the
Executive Overview Session held in Orlando approximately 60 days after
contract signing.
4. Xxxxxxxx will provide the ability to support the ATM print statement
feature currently available to Republic's customers, and this improvement
will be integrated into and become an integral part of Dimension, therefore
released and supported as a standard option in Dimension.
5. Xxxxxxxx will provide a print file so that Republic can customize their
laser forms.
6. On the first day of the month following Republic's completed conversion to
Dimension, all of Republic's existing Florida Software Services and
Dimension 4000 contracts will be canceled without penalty to Republic.
Monetary adjustments, if any, will be made at that time on a pro rata
basis.
7. The contract for Dimension 4000 ATM product and Teller Terminal/Screen is
canceled upon the signing of this agreement.
8. Xxxxxxxx will provide the Return Item and Noninterest Income Enhancement,
as a customized improvement to the Dimension application. Republic
understands and agrees that the improvement is being done at the bank's
request and that Republic is required to fund this effort in the amount of
$200,000.00 and that the improvement will be integrated into and become an
integral part of Dimension, therefore, released and supported as a standard
option in Dimension. Description attached as Exhibit A. Payment will be
$100,000.00 on signing (included in Initial Fee) and $100,000.00 at time of
conversion.
9. Republic will be added to the list of customers maintained by the escrow
agent upon contract acceptance. Republic will also receive, upon written
request, copies of the most recent independent third party audit of the
escrowed materials. (Such an audit is currently in process and is scheduled
to be completed by year end 1997)
10. All representations about Dimension and enhancement descriptions contained
in this Addendum shall be made part of the Banker's Reference for purposes
of this agreement. However, the initial implementation of an enhancement
will be documented by way of a release bulletin.
Agreed for:
Republic National Bank of Miami Xxxxxxxx Corporation
By: /s/ XXXXX XXXXXXXX, XX. By:_________________________________
----------------------------------
Xxxxx Xxxxxxxx, Xx., Chairman and CEO _________________________________
Date: November 7, 1997 Date:_______________________________
EXHIBIT A
Xxxxxxxx Corporation agrees to add the following functionality to the Dimension
application:
/bullet/ Software administration and/or account level options, similar to
existing available balance options, for Uncollected Balances to
include:
-- Pay or No Pay decisions
-- To include the items in service charge or account analysis
-- To accumulate negative collected and current balance interest
-- To allow uncollected charges and negative interest to be waived.
/bullet/ Changes to the return item decision screens to include a new coding
to reflect uncollected overdrafts
/bullet/ Incorporate routines in the posting process to recognize an
uncollected condition to match the current process for overdraft
and unavailable funds
/bullet/ Update return item reports and notices to include the new
uncollected option and information
/bullet/ Description for uncollected return items on customer statements and
combined analysis
/bullet/ Incorporate buckets and reporting for interest, positive and
negative, over cycle period with different interest reporting and
pricing for these two conditions:
(1) Interest on negative collected balances (with positive current
balance)
(2) Interest on negative current balances.
