EXHIBIT 10.32
LICENSE AGREEMENT
This License Agreement dated this first day of May, 1995 is entered into by and
between Xxxx Xxxx and Company, Inc., a California Corporation ("LICENSOR") and
Pan American Savings Bank, a federal savings bank ("LICENSEE").
This License Agreement, including any Addendum, any referenced exhibits, and any
other signed amendments or agreements (collectively the "Agreement"), constitute
the entire agreement between the parties relating to the subject matter herein.
Any statements or promises made between the parties which are not contained
herein regarding the subject matter hereof shall not be binding.
1. RECITALS
WHEREAS, LICENSOR is engaged in the business of developing, licensing,
installing and servicing the proprietary software known as SBO 90 Master
Servicing Software ("Program"); and
WHEREAS, LICENSEE desires to license such Program, as defined more fully
hereunder:
NOW, THEREFORE, for the reasons set forth above, and in consideration of the
mutual promises and agreements hereinafter set forth, LICENSOR and LICENSEE
hereby agree as follows:
2. NOTICES
Notices and documents to be given hereunder by one party to the other party must
be in writing and may be given either by personal delivery or prepaid by first
class mail or nationally recognized overnight carrier to the following
addresses:
LICENSEE: Pan American Savings Bank
0000 X. Xx Xxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
(000) 000-0000
Attention: Xxxxxx X. Byasse
LICENSOR: Xxxx Xxxx and Company, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
(000) 000-0000
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This address to which or the person to whom notice is to be given may be changed
from time to time by either party by written Notice to the other party as set
forth herein. Such change shall be effective upon notification of such change
in the manner set forth above. Notices sent as set forth above shall be
effective on the earlier of receipt or one (1) business day following mailing.
3. LICENSE
This Agreement allows LICENSEE to use the Program (which reference shall include
documentation) solely for the internal data processing operations of LICENSEE
and its subsidiary and affiliated entities for its own benefit or for the
benefit of any investor for whom it services loans. LICENSEE may not use the
Program for commercial timesharing, rental, or service bureau use. The Program
may not be transferred, sold, assigned, or otherwise conveyed to another party
without LICENSOR's prior written consent. This Agreement is for up to 48
copy(s) of the Program and may only be used on up to 48 workstation(s).
Backup and contingency planning copies may be made as deemed necessary by
LICENSEE, but only the number of copies of the Program as stated above may be
installed at any one time.
Only one database may be used by LICENSEE under this Agreement.
4. PRICING
LICENSEE will pay a fee each quarter based an the loan count on the last
business day of the quarter. The fee per loan will be based on the following
table
QUARTERLY LICENSE FEES
Number of Loans Quarterly Per Loan Fee*
1-409 ** Minimum of $450/quarter
410-499 $1.10
500-999 $.95
1000-1999 $.825
2000-4999 $.6875
5000 or more $.55
* Total fee for each category will not exceed minimum fee for next category
** If fewer than 410 loans reside on the Program, a minimum fee of $450 per
quarter will be charged in lieu of a per loan fee
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Payment of the Quarterly License Fee shall entitle LICENSEE to (1) day of on-
site (at location of LICENSEE) training per year, plus ongoing technical
support, maintenance and enhancements as defined in the Technical Support
Services Agreement. LICENSEE will reimburse LICENSOR for actual travel, lodging
and food expenses associated with on-site training visit.
The Quarterly License Fee shall be invoiced following the end of each calendar
quarter based on the loan count on the last business day of the quarter. In the
event that the Quarterly License commences on other than the first day or
terminates on other than the last day of a calendar quarter, the Quarterly
License Fee for that period will be prorated accordingly. For this purpose,
loan count is defined as those loans which the servicer continues to include on
its reports and where the principal balance is greater than zero.
The Quarterly License Fee may be increased once each year, the resulting fee may
be no higher than the lesser of the current fee charged by LICENSOR to similar
clients, or a maximum of ten percent (10%) over the previous year's fee.
5. PAYMENT TERMS
Invoices shall be payable within thirty (30) days after LICENSEE'S receipt of
such invoice. In the event of any disputed amount(s) on any invoice, LICENSEE
shall pay any amounts not in dispute, and shall pay the remaining amount as
mutually agreed, to be due within twenty (20) days after resolution of such
dispute. The failure of LICENSEE to pay any amount in dispute shall not be
deemed a default hereunder.
6. PROPRIETARY PRODUCT; COPYING RESTRICTIONS
LICENSEE acknowledges that LICENSOR advises that the Program as delivered by
LICENSOR or as modified by either party is the proprietary property of LICENSOR
and is protected by copyright law, and that LICENSOR shall at all times retain
right, title and interest (including copyrights and trade secret rights) in and
to Program, including all revisions, enhancements, and improvements. LICENSEE
may make one copy of the Program for backup purposes; no other copies shall be
made without the prior written consent of LICENSOR.
7. TECHNICAL SUPPORT SERVICES
Technical support, maintenance, updates and enhancements ("Maintenance
Services") shall be provided for as defined in the Technical Support Services
Agreement ("TSSA") between the parties.
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Payment of the license fee as defined in Section 4 herein shall entitle LICENSEE
to Maintenance Services, as provided for in the TSSA at no additional cost.
8. OTHER SOFTWARE
In the event LICENSEE purchases single user license, LICENSOR will acquire and
provide necessary oracle license to LICENSEE at no additional cost to LICENSEE.
Otherwise, LICENSEE will purchase required oracle licenses at the current
LICENSOR'S price as published in LICENSOR'S current price schedule.
LICENSOR hereby represents and warrants that it is authorized to license Oracle
software products to LICENSEE.
9. TERM; TERMINATION
This Agreement will continue from quarter to quarter, so long as LICENSEE
continues to pay the appropriate license fees. LICENSEE may terminate the
Agreement by providing LICENSOR with at least thirty (30) days advance written
notice.
Notwithstanding the above, the provisions found under Sections 2, 10, 12, and 17
hereunder shall survive any termination of this Agreement.
10. CONFIDENTIAL INFORMATION; NON-DISCLOSURE
LICENSOR acknowledges that LICENSOR, its employees and agents may produce or
have access to confidential information, records, files, documents, data,
specifications, trade secrets, customer lists, and secret inventions and
processes of LICENSEE and confidential customer information (collectively
"Information"). All records, files, drawings, documents or copies thereof,
relating to LICENSEE'S Information, which LICENSOR shall prepare or use, or come
in contact with, shall be and remain the sole property of LICENSEE, and shall
not be reproduced, transmitted, or removed from LICENSEE'S premises without its
written consent and LICENSOR agrees that it will not use or permit others to use
or disclose to any persons or business entity without the prior written consent
of LICENSEE. LICENSOR shall hold all such Information contained in or derived
from any of the sources described above in trust and confidence for LICENSEE
except as authorized in advance by LICENSEE in writing. LICENSOR agrees to
adopt and maintain procedures reasonably calculated to ensure that only such
employees or agents of LICENSOR that have need to know such Information in order
to discharge LICENSOR'S obligations hereunder have access to such Information
and that such employees or agents are bound by the
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terms hereof. Upon termination of this Agreement, LICENSOR shall take all
reasonable steps necessary to protect LICENSEE'S rights hereunder and to assist
LICENSOR in protecting its rights hereunder. In the event of a breach hereunder
by LICENSOR or its employees or agents, LICENSEE shall be entitled to all
available legal and equitable relief including injunction, temporary or
permanent.
The obligation of non-disclosure and cooperation shall survive any termination
of this Agreement.
11. LIMITED WARRANTY; LIMITATION OF LIABILITY
A. LICENSOR warrants the diskettes to be free of defects in material and
workmanship under normal use. LICENSOR will replace promptly any defective
diskette without charge if the defective diskette is returned to LICENSOR.
LICENSOR further warrants that the Program, unless modified by LICENSEE,
will substantially perform the functions described in the documentation
provided by LICENSOR when operated on the designated hardware and operating
system as defined herein.
B. The Program warranty does not cover any Program that has been altered or
changed in any way by anyone other than LICENSOR. LICENSOR is not
responsible for problems caused by changes in the operating characteristics
of computer hardware or computer operating systems which are made after
installation of the Program, nor for problems in the interaction of the
Program with NON-LICENSOR software, except for changes made with the prior
knowledge and approval of LICENSOR and software in use prior to the date
hereof. LICENSOR represents and warrants that the Program and the software
described under Section 8 herein are compatible with LICENSEE'S current
operating environment and with LICENSEE'S current software and hardware,
and that the Program will perform to standards set forth in the Program
documentation.
C. If LICENSEE reports a defect in the Program, LICENSOR shall, at its option,
promptly correct such defect or provide LICENSEE a reasonable procedure to
circumvent the defect.
THESE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES OF
MERCHANTABILITY OR OF ANY OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED
REGARDING PROGRAM FUNCTIONALITY
LICENSOR shall not in any case be liable for special, incidental,
consequential, indirect, or other similar damages arising from any breach
of the above warranties even if
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LICENSOR or its agent has been advised of the possibility of such damages.
LICENSOR'S liability for damages hereunder shall in no event exceed the
aggregate of the fees paid by LICENSEE under this Agreement.
Notwithstanding anything to the contrary herein, the above limitation of
liability shall not apply to any claims or damages caused by or arising out
of LICENSOR'S negligence, willful misconduct, breach of patent, copyright,
trademark, or other intellectual property right, or violation of Section 10
herein, including, without limit, personal injury and property damage.
These warranties allocate the risks of Program failure between LICENSOR and
LICENSEE. LICENSOR'S pricing reflects this allocation of risk and the
limitation of liability contained in this warranty.
12. PATENT AND COPYRIGHT INDEMNITY
Notwithstanding the above, LICENSOR warrants that it holds title and/or
copyright rights to the Program, and is authorized to license the Program
to LICENSEE as stipulated hereunder.
LICENSOR will defend at its own expense and indemnify LICENSEE and its
subsidiaries and affiliates from and against any claim or action brought
against LICENSEE or its affiliates to the extent it is based an a claim
that the Program supplied by LICENSOR infringes a United States patent,
copyright or other proprietary right, and will pay any costs, liabilities,
damages or LOSSES, including attorney, consulting or arbitration fees in
any such action which are attributable to any such claim. However, such
defense and payments are subject to the conditions that:
A. LICENSEE will notify LICENSOR in writing of any such claim;
B. LICENSOR will have control of the defense and negotiation for settlement or
compromise; and
C. LICENSEE will reasonably assist LICENSOR in the defense of any such claim,
at no cost to LICENSEE.
Should the Program become (or in LICENSOR'S'S opinion be likely to become)
the subject of any claim, LICENSEE will permit LICENSOR at LICENSOR'S
option and expense to (i) procure for LICENSEE the right to continue using
the Program; or (ii) replace or modify the Program so that it
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becomes non infringing while providing equivalent performance within
LICENSEE'S then existing environment. LICENSOR assures LICENSEE the right
to on-going, uninterrupted use of the Program.
13. EXPORT ADMINISTRATION
If the Program is for use outside the United States, LICENSEE agrees to
comply fully with the U.S. Export Administration Act to assure that the
Program and media are not exported in violation or United States Law.
14. GOVERNING LAW
This Agreement shall be governed for all purposes by the laws of the State of
California.
15. ATTORNEYS' FEES PROVISION
If any action (lawsuit or arbitration) is filed or proceeding is brought in
connection with this Agreement or for the enforcement or declaration of any
rights, obligations, or remedies arising under the Agreement or otherwise
granted, permitted or imposed by law or in equity, then the prevailing party
therein shall be entitled to recover from the other party all costs and
expenses, including reasonable attorneys' fees, arbitration costs and court
costs sustained or incurred by the prevailing party.
16. REGULATORY COMPLIANCE
LICENSOR will abide by all regulatory agency policies, bulletins or
announcements that pertain to LICENSEE and assure licensed material allows
LICENSEE to comply with all applicable laws and regulations to the extent
relevant thereto, to include, without limit, the Office of Thrift Supervision
(OTS), Federal Deposit Insurance Corporation (FDIC), Federal Financial
Institution Examination Counsel, the office of the Comptroller of the Currency
(OCC), the Federal Reserve Board (FRB), the National Credit Union Association
(NCUA) and the Internal Revenue Service (IRS). On request, LICENSOR will
provide copies or reasonable access to plans, procedures or other evidence of
regulatory compliance to LICENSEE.
17. ARBITRATION
Any disputes not resolvable between LICENSOR and LICENSEE will be settled by an
arbitrator agreeable by both LICENSOR and LICENSEE, under the rules of the
American Arbitration Association then in effect.
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18. COMPLETE AGREEMENT
This Agreement, and the TSSA constitute the complete agreement between the
parties regarding the subject matter herein. The terms of these agreements
shall supersede the terms of any purchase order or other instrument issued by
LICENSEE for the Program. No modification, amendment, supplement to or waiver
of this Agreement or any of its provisions shall be binding upon the parties
hereto unless made in writing and duly signed by the party to be bound. A
failure or delay of either party to this Agreement to enforce at any time any of
the provisions of this Agreement or to require at any time timely performance of
any of the provisions hereof, shall in no way be construed to be a waiver of
such provision.
19. FORCE MAJEURE
Neither party shall be liable for delays or failure to perform due to causes
beyond its reasonable control, including delays in transportation. In the event
of any such delay, the date of performance shall be extended for a period equal
to the time lost by reason of the delay. If any such delay by LICENSOR extends
for thirty (30) days or more, LICENSEE may terminate this agreement upon twenty
(20) days written notice.
20. DEFAULT
In the event of the LICENSOR'S breach of this Agreement, which breach remains
uncured after ten (10) days notice, LICENSEE shall have the right to terminate
this Agreement and pursue its legal rights of law and equity, subject to the
limitation of liability provided in Section 11 hereunder.
21. ASSIGNMENT
Except as provided herein, LICENSEE may not assign this Agreement without the
prior written consent of LICENSOR. LICENSOR may not assign or subcontract any
part of this Agreement without the prior written consent of LICENSEE. Neither
party will withhold its consent unreasonably.
22. COMPLIANCE WITH LAWS
Both parties shall comply with and conform to all laws and regulations to the
possession, use, and maintenance of the products and services provided under
this Agreement and the TSSA.
LICENSOR agrees that (i) in the provision Of products and services to LICENSEE
under this Agreement, LICENSOR shall comply with all applicable federal, state,
and local laws, executive orders and
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regulations thereunder and amendments thereto including without limitation,
Executive Order No. 11375 of October 13, 1967, relating to equal employment
opportunity. The Federal Occupational Safety Health Act of 1970, The Federal
Hazardous Substances Act, The Transportation Safety Act of 1974, The Clear Air
Act, The Toxic Substances Control Act, and The Federal Water Pollution Control
Act; (ii) the products and services provided by the LICENSOR to LICENSEE shall
conform to the requirements of such laws, orders, and regulations; and (iii)
this Agreement shall be deemed to incorporate by reference all of the clauses
required by the provisions of said laws, orders, and regulations.
23. SOURCE CODE
LICENSOR will provide Program source code to an escrow agent upon signing of
contract. LICENSOR will provide source code updates to escrow agent as changes
to source code are made. The source code will remain with the escrow agent as
long as LICENSEE rents Program or maintains technical support if and when
LICENSEE upgrades to a perpetual license. Escrow agent will provide source code
to LICENSEE if a default by LICENSOR occurs. A default is any of the following
events:
LICENSOR commences a voluntary case under the Federal bankruptcy laws or has
filed a petition seeking to take advantage of any other laws relating to
bankruptcy.
LICENSOR has ceased its on-going business operations, or sale, licensing,
maintenance or other support of the Program.
Any other event or circumstance occurs which demonstrate with reasonable
certainty the inability or unwillingness of LICENSOR to fulfill its obligations
to LICENSEE.
24. TRAINING
As of the Commencement Date of this Agreement, LICENSEE shall be entitled to
three (3) days of onsite training/consulting time. LICENSEE shall be responsible
for all travel and lodging expenses incurred by LICENSOR during this trianing
period.
25. MISCELLANEOUS
A. This agreement may be simultaneously executed in counterparts each of which
shall be deemed an original, but all of which shall constitute one and the
same agreement.
B. If any provision of this Agreement as applied to any party or to any
circumstances shall be deemed by a court of law to be
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void or unenforceable, the same shall in no way affect any other provision
in this Agreement, the application of such provision in any other
circumstance or the validity or enforceability of the Agreement as a whole.
C. Each party represents and warrants that the person or persons executing
this Agreement on its behalf is authorized to execute this Agreement on
behalf of that party.
ACCEPTED
Xxxx Xxxx and company, Inc.
BY: /s/ XXXX XXXX
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Printed Name: Xxxx Xxxx
Title: President Date: May 1, 1995
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Pan American Savings Bank
BY: /s/ XXXXXX XXXXXX
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Printed Name: Xxxxxx Xxxxxx
Title: E.V.P Date: April 13, 1995
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