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CONFIDENTIAL TREATMENT* EXHIBIT 10.5
* CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO THE RULES
AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION. BRACKETS AND "+" HAVE
BEEN USED TO IDENTIFY INFORMATION WHICH IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST.
MARKETING AGREEMENT
THIS MARKETING AGREEMENT (the "Agreement") is made this 22nd day of
July, 1997 by and between NFRONT, INC. ("nFront"), a Georgia corporation having
its principal offices at 0000 Xxxxxxxx Xxxx Xxxx, Xxxxx 000X, Xxxxxx, Xxxxxxx
00000 and CNL FINANCIAL CORPORATION AND/OR SUBSIDIARIES ("Reseller"), a Georgia
corporation having its principal offices at 0000 Xxxxxxxxx Xxxxx, Xxxxx, Xxxxxxx
00000.
W I T N E S S E T H:
WHEREAS, nFront is in the business of providing home banking and xxxx
payment services through the Internet to customers of banks and other financial
institutions;
WHEREAS, Reseller is in the business of providing technology services
to banks and financial institutions;
WHEREAS, Reseller desires to offer to its Customer Base (as hereinafter
defined) and potential customers Internet home banking capabilities;
WHEREAS, nFront desires Reseller to offer nFront's proprietary Internet
home banking system as more fully described in Exhibit A attached hereto (the
"nHome System") to Reseller's Customer Base and to potential Bank customers of
Reseller.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
As used in this Agreement, each of the following terms has the meaning
set forth thereafter, such meaning to be equally applicable both to the singular
and plural forms of the terms herein defined:
(a) "Agreement" means this agreement, together with all exhibits and
schedules hereto now or hereafter signed by Reseller and nFront (all of which
are herein incorporated by reference), as the same may be modified, amended or
supplemented from time to time.
(b) "Bank" means banks and other financial institutions that offer
retail banking services to the general public.
(c) "Customer Base" means those customers listed on Exhibit B attached
hereto and any other Banks who become customers of Reseller during the Term.
(d) "Documentation" means that portion of the nHome System that
provides installation and operating instructions for use of the nHome System.
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(e) "End-User" means the ultimate user of the nHome System.
(f) "Generic Hardware" means computer equipment and configurations
thereof that meets the specifications provided by nFront for use with the nHome
System.
(g) "nHome System" shall have the meaning set forth in the fourth
recital hereof and shall also include all future improvements, enhancements and
modifications thereof, and all releases and upgrades related thereto.
(h) The terms "sale" and "resale" and any grammatical variant thereof
shall include, without limitation, sales, contracts for sale, conditional sales,
installment sales, rentals, leases or licenses of software to Banks, and any
other arrangement whereby the nHome System is placed at the disposal of the
Banks.
(j) "Software" means that portion of the nHome System that is comprised
of computer applications programs intended to be installed on the central
processing unit of Generic Hardware.
(k) "Term" shall have the meaning set forth in Section 8.1 hereof.
ARTICLE II
Reseller Appointment
2.1 Appointment. During the Term, nFront hereby grants to Reseller the
non-exclusive right to market the nHome System to its Customer Base and
potential Bank customers of Reseller, and Reseller hereby accepts such
appointment. There are no geographic restrictions on where Reseller may market
the nHome System. Reseller understands, acknowledges and agrees that this
appointment is non-exclusive as to both the nHome System and geographic area and
that nFront may appoint more than one reseller in any given geographic area to
sell and market the same nHome System as any other reseller. nFront expressly
reserves the right to sell and deliver the nHome System to any other entity,
including Banks. Unless otherwise set forth on Exhibit C attached hereto or
hereafter as consented to in writing by nFront, Reseller shall sell the nHome
System only to Banks, and shall not sell the nHome System to other parties
providing core processing services to Banks, or to Bank service bureaus,
software providers, other resellers of automated bank services or to any other
buyer who intends, directly or indirectly, to resell the nHome System. Reseller
has no authority to appoint any associate resellers or subdealers of the nHome
System.
2.2 Relationship between nFront and Reseller. Reseller shall conduct its
business in the purchase and resale of nHome System as a principal for its own
account and at its own expense and risk. This Agreement does not in any way
create the relationship of principal and agent, or any similar relationship
between nFront and Reseller, including, but not limited to that of joint
ventures, partners or associates. Reseller is granted no right or authority
hereunder to assume or create any obligation or responsibility for or on behalf
of nFront or otherwise to bind or to use nFront's name other than as may be
expressly authorized by nFront.
ARTICLE III
Sales, Service, and Training and Related Obligations
3.1 Selling and Promotion. Reseller shall use its best efforts to sell and
promote the sale of the nHome System within the Territory, which best efforts
shall include, but not be limited to, promotion of the nHome System to the
Customer Base and prompt performance of all of its obligations under this
Agreement.
3.2 Staffing and Training. Reseller shall appoint its suitable employees to sell
the nHome System. Reseller shall, at its sole cost and expense, send the
appropriate sales personnel to such training programs and other refresher and
upgrade training as nFront may, at reasonable intervals, require. nFront shall
provide periodic routine consultation and advice to Reseller in connection with
Reseller's sales and service hereunder and shall provide (a) technical,
specification and sales advice, (b) assistance and advice concerning promotional
and training programs, and (c) suggestions for new applications for the nHome
System at Reseller's cost. nFront shall furnish Reseller with a reasonable
supply of price
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lists, sales literature, catalogues, specifications for Generic Hardware,
Documentation and advisory assistance with respect to installing the nHome
System. All proprietary demonstration equipment, manuals, instruction books,
contract forms, sales and promotional materials, Documentation and similar
material furnished to Reseller by nFront, whether furnished free of charge or
not, shall remain the property of nFront and upon request shall be returned to
nFront by Reseller.
3.3 Installation. Reseller acknowledges, understands and agrees that the nHome
System that it shall provide to Banks shall remain resident on nFront's servers,
and that such Banks shall, through Reseller, gain access to the nHome System
upon execution of a contract with nFront. nFront shall be responsible for
systems maintenance of the nHome System resident on its servers.
3.4 Reseller Promotional Activity. nFront shall not share in the expense of any
advertising or promotional activities by Reseller or other sales promotion
projects except by express agreement in writing. All materials prepared by
Reseller that promote the nHome System, including, but not limited to, any
materials that include any trademark or trade name (or any xxxx or name closely
resembling the same) now or hereafter owned or licensed by nFront or any of its
affiliates shall be approved in writing by nFront prior to use.
3.5 Reseller Recordkeeping. Reseller shall keep records of its business relating
to the nHome System as may be reasonably required by nFront. nFront or its
authorized representative may, from time to time during regular business hours,
examine such records and Resellers accounts relating to the sale and servicing
of the nHome System. Within a reasonable period after the close of each of
Reseller's fiscal years, Reseller shall submit to nFront a copy of its financial
statements for such fiscal year.
ARTICLE IV
Conditions of Sale
4.1 Pricing and Payment. The price for access to the nHome System to the Banks
and the processing fees for transactions thereunder shall be as set forth in
Exhibit D attached hereto. As compensation for its sales and marketing provided
hereunder, Reseller shall be entitled to retain the percentage of such fees as
set forth in Exhibit D attached hereto.
4.2 Force Majeure. nFront shall not be liable for loss or damage due to
interruption of service or access to the nHome System resulting from any cause
beyond its reasonable control, including, but not limited to, Internet systems
or network failure, capacity limitations, compliance with regulations, orders or
instructions of any federal, state or municipal government or any department or
agent thereof, acts of God, acts or omissions of Reseller, acts of civil or
military authority, fires, strikes, facilities shutdowns or alterations,
embargoes, war, riot, delays in transportation, or inability to obtain necessary
labor, facilities or materials from usual sources. IN NO EVENT SHALL NFRONT BE
LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES DUE TO ANY SUCH CAUSE.
4.3 Price and System Changes. nFront shall have the right to change the nHome
System without notice to Reseller, and shall have the right at any time to
discontinue the sale of any version of the nHome System, to make changes in
method of access or delivery, including interface procedures, and to add
improvements, all without incurring any liability whatever, including any
obligation to install or modify the same on the nHome System previously accessed
by the Customer Base. nFront may change its prices to Reseller for the nHome
System upon thirty (30) days' written notice to Reseller. Any contract between
Reseller and a Bank which includes the nHome System executed prior to the date
of any such notice with a scheduled delivery date after the effective date of
such price increase shall be sold to Reseller at the revised price for the nHome
System. Any nHome System scheduled for delivery to a Bank prior to the effective
date of any such price increase but delayed due to the fault of nFront or for
reasons beyond nFront's control shall be sold to Reseller at the price as in
effect on the date Reseller ordered the nHome System. The price protection
provisions contained in this Section 4.3 shall apply only to the initial access
fees listed on Exhibit D attached hereto, and shall not apply to any increase in
processing fees, which increase shall be effective as of the thirtieth day
following written notice of such increase to Reseller.
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ARTICLE V
Warranties
5.1 nFront's Warranty. THE NHOME SYSTEM IS PROVIDED "AS-IS", "WHERE-IS". NFRONT
SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE AS TO THE NHOME SYSTEM PROVIDED UNDER THIS AGREEMENT.
ARTICLE VI
Special Agreements Regarding Software and Other Intellectual Property
6.1 Limited License. In the performance of Reseller's obligations hereunder, it
shall be necessary for Reseller to demonstrate the nHome System. Accordingly,
subject to the terms and conditions contained herein, nFront hereby grants to
Reseller, and Reseller hereby accepts from nFront, a non-exclusive license (the
"License") of the Software solely for the purpose of demonstrating the nHome
System in operation to potential Bank customers of Reseller.
6.2 Software Covenants. Reseller agrees to comply with each of the
following requirements:
(a) Reseller shall not copy, alter, modify, translate, decompile,
disassemble, reverse engineer or otherwise attempt to derive source code, or
create derivative works of the Software, or any part thereof, or knowingly allow
others to do so, during or after the Term.
(b) Except as otherwise specifically provided in this Agreement,
Reseller shall not loan, rent, lease, give, sub-license, or otherwise transfer,
nor communicate or otherwise disclose, the Software, including any part or any
copy thereof, in whole or in part, to any person. Reseller agrees that except
for copies of the Software provided to Reseller pursuant to Section 6.1 hereof,
all such software provided to Reseller hereunder shall remain in its sealed
package, as provided by nFront to Reseller, until delivered to a Bank customer
of Reseller.
(c) Except with respect to providing access to the nHome System to Bank
customers as authorized and specifically provided in this Agreement, Reseller
shall not electronically transfer the Software, or any part thereof, from one
computer to another over a network, irrespective of how linked.
(d) The Software, including all parts thereof, and any copies, in whole
or in part, and any and all copyrights thereto, are and remain the property of
nFront, irrespective of the ownership of the media on which such Software and
any parts or copies thereof are contained.
(e) Each copy of the Software sold to Banks shall include a license
agreement, the form of which shall be as set forth in the Exhibit E.
(f) Reseller acknowledges that the laws and regulations of the United
States restrict the export and re-export of commodities and technical data of
United States origin, including the nHome System. Reseller agrees that it shall
not export or re-export such Software in any form without nFront's consent,
which consent shall, among other things be conditioned upon Reseller receiving
the appropriate United States and foreign government licenses and approvals.
(g) Reseller shall not, by any act or omission, impair or prejudice the
copyright or any other right of whatever nature of nFront in and to the nHome
System or any part thereof, and shall not deal with the same in any manner which
may allow any third party to obtain any rights in the same which are
inconsistent or which conflict with the rights of nFront.
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6.3 Notices; Markings; Trademarks; Tradenames. Reseller agrees to comply
with the following:
(a) Reseller shall not delete any trademarks, tradename or copyright
notice present in, on or displayed by the nHome System, or any part thereof.
(b) Reseller shall not add to any notice present in, on or displayed by
the nHome System its own copyright, trademark or other proprietary notices
unless such notices have been previously approved in writing by nFront.
(c) Except as already present in, on or displayed by the nHome System
software and/or accompanying packaging or Documentation provided by nFront,
Reseller shall not use any trademarks and/or tradenames of nFront without prior
written approval of nFront.
6.4 Documentation. Each nHome System sold by Reseller to a Bank shall include
one (1) set of accompanying Documentation.
ARTICLE VII
Confidentiality and Non-Disclosure
7.1 Reseller Obligations.
(a) Reseller recognizes, acknowledges and agrees that during the Term,
nFront may furnish to Reseller certain technical and commercial information,
including but not limited to, designs, procedures, formulas, discoveries,
inventions, improvements, innovations, concepts and ideas, lists of customers,
computer programs, business methods, and plans for future developments
("nFront's Confidential Information") which is the confidential, proprietary
property of nFront. Reseller recognizes, acknowledges and agrees that nFront's
Confidential Information was not previously known to the Reseller and is to be
maintained in secrecy and confidence by Reseller and Reseller's employees,
agents or representatives to whom Reseller discloses any of nFront's
Confidential Information. Reseller agrees for itself and for each of its
employees, agents or representatives to whom Reseller discloses any of nFront's
Confidential Information that such information shall be used only in accordance
with the terms, covenants, conditions and limitations of this Agreement, and not
for the benefit of or for, directly or indirectly, Reseller or any of its
employees, agents or representatives. Information made available to the general
public by nFront and information obtained from third parties not associated with
nFront shall not be considered to be nFront's Confidential Information, except
for information received from third parties that Reseller knows or should have
known was obtained illegally or in violation of this Agreement. In the event
Reseller or a representative of Reseller is requested by law, order of court or
any agency to disclose any of nFront's Confidential Information, Reseller shall
give nFront prompt notice of such request so that nFront may seek an appropriate
protective order. If, in the absence of a protective order, Reseller or a
representative of Reseller is nonetheless compelled by law to disclose any of
nFront's Confidential Information, Reseller or a representative of Reseller, as
the case may be, may disclose such information in such proceeding without
liability hereunder; provided, however, that Reseller gives nFront written
notice of the information to be disclosed within twenty-four (24) hours after
receipt of such order by Reseller and, upon nFront's request and at its expense,
Reseller shall use its best efforts to obtain assurances that confidential
treatment shall be accorded to such information.
(b) In the event this Agreement is terminated for any reason, the
Reseller agrees to return promptly nFront's Confidential Information, including
all copies thereof, to nFront, or to deliver all such information promptly to
such party as may be designated by nFront. Reseller further agrees thereafter
not to use or disclose nFront's Confidential Information in any manner
whatsoever without the prior written approval of nFront unless and until such
information shall lawfully become generally known in the public domain through
no fault of the Reseller or breach by the Reseller of the covenants contained
herein.
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(c) Reseller shall disclose nFront's Confidential Information to Banks
only to the extent necessary to enable such customers to use the nHome System,
and only after any such Bank executes an agreement in form and substance
acceptable to nFront, acknowledging the confidential nature of such information
and setting forth the appropriate treatment of such information.
7.2 nFront's Obligations.
(a) nFront recognizes and agrees that, except as otherwise provided
herein, certain business information provided by the Reseller to nFront, not
related to nFront's ongoing business ("Reseller's Confidential Information"), is
the proprietary property of Reseller, is not previously known to nFront and is
to be maintained in secrecy and confidence, except as provided herein, and used
only in accordance with the terms, covenants, conditions and limitations of this
Agreement. Information made available to the general public and information
obtained from third parties not associated with Reseller shall not be considered
to be Reseller's Confidential Information, except for information received from
third parties that nFront knows or has reason to know was obtained illegally or
in violation of this Agreement. In the event nFront or a representative of
nFront is requested by law, order of court or any agency to disclose any of
Reseller's Confidential Information, nFront shall give Reseller prompt notice of
such request so that Reseller may seek an appropriate protective order. If, in
the absence of a protective order, nFront or a representative of nFront is
nonetheless compelled by law to disclose any of Reseller's Confidential
Information, nFront or a representative of nFront, as the case may be, may
disclose such information in such proceeding without liability hereunder;
provided, however, that nFront gives Reseller written notice of the information
to be disclosed within twenty-four (24) hours after receipt of such order by
nFront and, upon Reseller's request and at its expense, nFront shall use its
best efforts to obtain assurances that confidential treatment shall be accorded
to such information.
(b) In the event this Agreement is terminated for any reason, nFront
agrees to return promptly Reseller's Confidential Information, including all
copies thereof, to Reseller or to deliver all such information promptly to such
party as may be designated by Reseller. nFront further agrees thereafter not to
use or disclose Reseller's Confidential Information in any manner whatsoever
without the prior written approval of Reseller unless and until such information
shall lawfully become generally known in the public domain through no fault of
nFront or breach by nFront of the covenants contained herein.
ARTICLE VIII
Term and Termination
8.1 Term. This Agreement shall commence as of the date hereof and shall remain
in effect (unless sooner terminated pursuant to Section 8.2 hereof) for ten (10)
years (the "Term"). It shall be renewed automatically without interruption for
successive five-year terms, unless, not less than sixty (60) days before the end
of any Term, either nFront or Reseller notifies the other party in writing of
its election (at its sole option, for any reason or for no reason) not to renew.
Any such renewal periods shall be considered an extension of and part of the
Term.
8.2 Right to Terminate. Notwithstanding any other provision hereof, this
Agreement may be terminated either (i) by mutual agreement of the parties
hereto; (ii) by either party at any time if the other party has materially
breached any of the provisions hereof and, if the breach is curable, has failed
to cure such alleged breach within fifteen (15) days after written notice
thereof in the case of failure to pay when due amounts owing to such party, and
within thirty (30) days in case of all other alleged curable breaches; or (iii)
by either party immediately and without the giving of notice, in the event that
either party shall become insolvent, or shall ask its creditors for a
moratorium, or shall file a voluntary petition in bankruptcy, or shall be
adjudicated as a bankrupt pursuant to an involuntary petition, or shall suffer
appointment of a temporary or permanent receiver, trustee, or custodian for all
or a substantial part of its assets which shall not be discharged within sixty
(60) days. In the event either party materially breaches any of the provisions
hereof, and such breach is not curable, this Agreement shall be immediately
terminable by the non-breaching party. Without limiting the foregoing, any
violation of Articles VI, VII and IX hereof shall constitute a noncurable breach
and if either party commits such a breach, this Agreement shall be terminable
immediately by the non-breaching party.
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8.3 Effect of Termination.
(a) Upon termination of this Agreement, Reseller shall return to
nFront, promptly and without charge to nFront, all Documentation, price lists,
maintenance and policy manuals, sales aids and other publications of nFront
relating to the nHome System which Reseller has on hand. Reseller shall
thereupon immediately cease using any trademarks, tradenames, service marks or
other identifying marks on any of its materials.
(b) Reseller will continue to receive commissions until the completion
of each Customer's Initial Term. After such Initial Term, if nFront is caused to
renegotiate and/or sell subsequent terms then Reseller's commission plan would
cease for that particular Customer. If nFront is not caused to renegotiate
and/or sell subsequent terms then Reseller's commission plan would continue
until nFront is caused to renegotiate and/or sell subsequent terms.
ARTICLE IX
Non-Competition Agreement
9.1 During the Term Reseller shall not, directly or indirectly, individually, on
behalf of or in conjunction with any other person or legal entity, or for or on
behalf of any person, corporation, partnership, company, trade association,
agent, agency or other entity, engage in the business of selling or
distributing, within the Territory, any Internet Banking solution other than
nHome. nFront agrees not to allow any credit life company to act as a Reseller
of its product, without prior written consent of Reseller, as long as Reseller
meets the following sales goals: Year 1: 50 banks; Year 2: 75 banks; Year 3: 100
banks; Year 4: 125 banks; and Year 5: 125 banks. These goals will be mutually
reviewed on a quarterly basis.
ARTICLE X
Indemnification; Other Relief
10.1 Indemnification by Reseller. Reseller shall indemnify, defend and hold
harmless nFront, its officers, directors, shareholders, employees, agents and
affiliates from and against any claims, losses, damages, liabilities or expenses
(including, without limitation, reasonable attorneys' fees and expenses)
(collectively, "Claims") resulting from or arising out of any representations
made by Reseller with respect to the nHome System or a breach of any of the
provisions of this Agreement, provided, however, that in respect of any Claims
hereunder against Reseller that arise out of or result from any alleged use or
misuse of the nHome System or any part thereof by Reseller or any Bank included
in the Customer Base or any alleged misrepresentations made by Reseller with
respect to the nHome System, Reseller shall be notified promptly of such Claim
in writing and shall be given authority, control and full and proper information
and assistance in the defense and settlement of such Claim. Notwithstanding the
foregoing, Reseller shall not have the authority to settle or compromise any
Claim in a manner that indicates that nFront contributed to or was responsible
for the cause of any such Claim unless nFront consents in writing to such
settlement.
10.2 Indemnification by nFront. Subject to the limitations set forth in Section
10.5 hereof, nFront shall indemnify, defend and hold harmless Reseller, its
officers, directors, shareholders, employees, agents and affiliates from and
against any claim, suit or proceeding based upon an allegation that the nHome
System (or any portion thereof) infringe upon or misappropriate any copyright,
patent, trademark or trade secret of any third party, provided that nFront is
notified promptly of such claim, suit or proceeding in writing and is given
authority, control and full and proper information and assistance in the defense
and settlement of such claim, suit or proceeding. If the nHome System is finally
determined by a court of competent jurisdiction to constitute an infringement of
any patent, copyright, trademark or other trade secret of a third party and its
use is enjoined, nFront shall either:
(a) procure the right for Reseller to continue to use the nHome
System under this Agreement; or
(b) replace or modify the nHome System with a version of the nHome
System that is not so infringing and that satisfies this provision of this
Agreement.
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10.3 Arbitration. The parties to this Agreement agree that any controversies or
claims arising out of or relating to this Agreement (including, without
limitation, any alleged breach thereof or the termination or non-renewal
thereof) shall be settled by arbitration pursuant to the Federal Arbitration
Act, 9 U.S.C. ss. 1 et seq., in accordance with the Commercial Arbitration Rules
of the American Arbitration Association. The parties hereto further agree that
the arbitrators in any such arbitration shall not be authorized to award any
punitive damages in connection with any controversy or a claim settled by
arbitration hereunder. The decision of the arbitrator in any such arbitration
shall be final and binding upon the parties and judgment upon the award may be
entered in any court having jurisdiction thereof. Any arbitration shall take
place in Atlanta, Georgia, and the expenses of the arbitrators shall be
allocated by such arbitrators. The arbitration shall be conducted before a panel
of three (3) arbitrators, one selected by Reseller, one selected by nFront, and
one selected by mutual agreement of the arbitrators selected by Reseller and
nFront.
10.4 Injunctive Relief. Notwithstanding the provisions of Section 10.3 hereof,
the parties acknowledge and agree that any breach of the provisions of Articles
VI, VII or XI of this Agreement shall result in irreparable harm to nFront for
which no adequate remedy at law exists. Accordingly, upon any such breach,
nFront shall be entitled to injunctive or other appropriate extraordinary
relief, such relief being in addition to, and not in lieu of, any other rights
and remedies, including the award of damages, available at law or in equity.
Reseller acknowledges and agrees that no serious harm to it shall result from
the entry of any such equitable relief against it, and therefore any bond
required of nFront in connection with such relief shall be set in an amount not
in excess of One Thousand Dollars ($1,000.00) Any violation of the restraints
set forth herein shall automatically extend the period of such restraints for
the amount of time such violation continues, provided nFront seeks enforcement
promptly after discovery of such violation. nFront shall not be required to
prove money damages to enforce any provision of this Agreement.
10.5 LIMITATION OF LIABILITY. IN NO EVENT SHALL NFRONT BE LIABLE FOR ANY LOSS OF
PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF ACTION
ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE NHOME SYSTEM OR NON-DELIVERY
OF NHOME SYSTEM EVEN IF NFRONT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. SUBJECT TO THE MAXIMUM LIABILITY SET FORTH IN THIS PARAGRAPH, IN NO
EVENT SHALL NFRONT'S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT
EXCEED THE AMOUNT PAID TO NFRONT BY RESELLER UNDER THIS AGREEMENT WITHIN THE
THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF SUCH CLAIM. IN NO
EVENT SHALL NFRONT'S MAXIMUM, CUMULATIVE LIABILITY FOR ALL CLAIMS UNDER THIS
AGREEMENT EXCEED $25,000 OR ALL AMOUNTS PAID BY RESELLER TO NFRONT HEREUNDER,
WHICHEVER IS LESS. NO CLAIM MAY BE BROUGHT BY RESELLER UNDER THIS AGREEMENT MORE
THAN TWO (2) YEARS AFTER ACCRUAL OF SUCH CLAIM.
ARTICLE XI
Miscellaneous Provisions
11.1 Waiver. Any failure of a party to comply with any obligation, covenant,
agreement or condition herein may be expressly waived in writing by the other
party, but such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
11.2 Entire Agreement. This Agreement, the exhibits and schedules hereto
constitutes the entire understanding of the parties with respect to the subject
matter of this Agreement and are intended to supersede all prior understandings,
whether written or oral, between the parties with respect thereto.
11.3 No Third Party Beneficiary Rights. No provision of this Agreement is
intended or shall be construed to provide or create any third party beneficiary
right or any other right of any kind in any Bank or any client, customer,
affiliate, insurer, lender, shareholder, partner, officer, director, employee or
agent of any party hereto, or in any other
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person.
11.4 Amendment; Binding Effect; Assignment. No amendment, modification or
alteration of the terms of this Agreement shall be binding unless in writing and
executed by the parties hereto. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors, assigns, heirs, executors and administrators. Reseller may not
assign this Agreement, in whole or in part, or any of its rights or obligations
hereunder without the prior written consent of nFront, and any such attempted
assignment shall be void.
11.5 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Georgia, without giving
effect to the conflict-of-laws principles thereof.
11.6 Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the Term,
such provision shall be fully severable. This Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement.
11.7 Counterparts. This Agreement may be executed simultaneously or in two or
more counterparts, each of which together shall constitute one and the same
instrument and shall be deemed an original hereof.
11.8 Notices. All notices required or permitted under this Agreement shall be
made in writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail (return receipt requested),
U.S. mail or facsimile. All notices shall be addressed to the parties at the
respective addresses indicated above.
11.9 Survival. The provisions of Articles V, VI, VII, VIII, IX, X and XI shall
survive any termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
NFRONT, INC.
By: /s/ Xxxxx Xxxxxxx
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Its: President/CEO
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Date: 9/17/97
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RESELLER
By: /s/ X.X. Xxxxx
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Its: COO/CFO
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Date: 9/16/97
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EXHIBIT A
Refer to the first column of Exhibit D
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
PRICE COMMISSIONS
1) NHOME SYSTEM $[++++] #1
a) Products and Services
i) Five Secure Product Applications (Select from the following)
(1) Checking
(2) Savings
(3) CD
(4) Mortgage
(5) Consumer Loan
(6) Overdraft Protection
(7) Equity Line
ii) Additional Secure Applications
(1) Quiz
(2) Survey
(3) Guest Book
(4) Xxxx Payment
iii) Secure Database Retrieval
b) Online Banking
i) View Account Balances and Histories
ii) Checking
iii) Savings
iv) CDs/XXX
v) Loans
vi) Funds Transfer
c) Online Banking Demo
d) Xxxx Payment
e) Frequently Asked Questions
f) Marketing Section
g) Hot Product Link
h) What's New
i) Bank Information
j) Interactive Calculators
i) Loans (Payment and total Interest)
ii) Maximum Loan (Payment and total Interest)
iii) College Planning (Excess or deficiency, plus savings tips) iv)
Mortgage (Calculates principal and interest mortgages) v) Retirement
(Future value calculations)
k) Contact Us
l) Search Engine
m) Email
n) Administrative Site
o) Featured Banks Spotlight
2) SYSTEM SUPPORT MONTHLY $ [++++] #2
3) CUSTOMER FEES
a) Xxxx Payment Customer Set-up (per customer) $ [++++] 0%
b) On-line Banking Customer Set-up (per customer) $ [++++] #2
c) Application (per application) $ [++++] #2
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4) CUSTOMER SERVICE FEES ($[++++] MONTHLY MINIMUM)
a) Online Banking Customer Maintenance $ [++++] #2
b) Xxxx Payment Maintenance (up to 20, thereafter [++++] cents) $ [++++] 0%
5) NHOME OPTIONS
a) nForm (10 frames) $[++++] #1
b) Site Map Construction $[++++] #1
c) Management Reporting (Annually) $[++++] #2
d) Internet TV Site Quote #1
e) Telephone Xxxx Payment Quote #1
*The royalty percentage is based upon the actual sales dollars contracted by
Reseller to Customer. Example: If Reseller charges $[++++] for initial setup
then nFront would receive $[++++] and Reseller would receive $[++++]. The prices
listed in Exhibit D are nFront's minimum price level.
All contracts in which Commission #1 - See Below
nFront directly 5%
participate in selling**
0 - 50 20% 7.5%
51 - 100 25% 10%
101 + 25% 12.5%
**This would apply unless the nFront employee's salary and expenses are fully
reimbursed by Reseller.
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EXHIBIT E
LICENSE AND MAINTENANCE AGREEMENT
BETWEEN
NFRONT, INC.
("NFRONT")
A GEORGIA CORPORATION
HAVING ITS PRINCIPAL PLACE OF BUSINESS AT:
0000 XXXXXXXX XXXX XXXX, XXXXX 000X
XXXXXX, XXXXXXX 00000
AND
BANK NAME
("CUSTOMER")
HAVING ITS PRINCIPAL PLACE OF BUSINESS AT:
BANK ADDRESS
BANK CITY, STATE, ZIP
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1. AGREEMENT
This agreement ("Agreement") provides for the grant of a non-exclusive
license of Software ("Software") and the provision of Software
maintenance services by nFront to Customer.
2. INITIAL TERM
The initial term (the "Initial Term") of this Agreement shall begin
upon signing (the "Effective Date"), and shall remain in effect,
subject to the renewal provisions contained within Paragraph 3 hereof,
and subject to earlier termination as provided for in Paragraph 13 or
Paragraph 15 hereof, for a period of five (5) years following the
Effective Date.
3. AUTOMATIC RENEWAL AND SUBSEQUENT TERM
Upon expiration of the Initial Term, this Agreement shall be
automatically extended for an indeterminate number of successive five
(5) year periods (each a "Subsequent Term"), unless Customer notifies
nFront of its election not to renew at least ninety (90) days prior to
the end of the Initial Term of any Subsequent Term.
4. SOFTWARE RIGHTS
This Agreement grants Customer non-exclusive license rights to nFront
Software. For all purposes of this Agreement, the term "Software" shall
mean all those software products described in the Software Applications
attached hereto as Exhibit 1 ("Software Applications"). Customer may,
by addendum to this Agreement agreed to in writing by nFront, or by
separate written agreement with nFront, license other software products
provided by nFront. Unless Customer otherwise notifies nFront, all
subsequently licensed and installed Software shall be automatically
added to this Agreement.
5. FEES, INSTALLATION CHARGES AND TAXES
(a) Fees
Customer has been granted hereunder a non-exclusive license
for the Software for the duration of this Agreement. The
initial and annual Software fees for this license are set
forth in the Customer Software Fees attached hereto as Exhibit
2 ("Software Fees and Deliverables").
(b) Installation and Special Charges
Customer shall pay for Software installation, modification,
and non-covered maintenance of Software at nFront's then
prevailing professional service fees. A list of nFront's
current prevailing professional service fees is attached
hereto as Exhibit 3 ("Professional Service Fees"). Expenses
for travel and all related expenses for Software installation,
modification, and covered and non-covered maintenance shall be
reimbursed by Customer to nFront upon invoice.
(c) Taxes
Customer is additionally responsible for all applicable
federal, state, or local taxes (exclusive of income taxes
properly payable by nFront) and other governmental fees or
assessments incurred as a result of this License, use of the
Software by Customer, and services provided by nFront
hereunder.
6. PAYMENT
(a) Payment of Fees and charges hereunder will be due as follows:
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(1) One hundred percent (100%) of the Initial Software
Fees is due at the time Customer signs this
Agreement.
(2) All other fees are billed monthly. All monthly
minimum fees begin on the software acceptance date.
(3) Non-covered maintenance and travel and related
charges are due upon invoice by nFront.
(b) In the event payment is not made as specified herein, or
within thirty (30) days following invoice by nFront, as
applicable, Customer shall pay interest at the rate of one and
one half percent (1.5%) per month (or the highest applicable
legal rate, whichever is lower) on the outstanding overdue
balance for each month or part thereof that such sum is
overdue. Customer agrees to pay all costs of collection of
overdue amounts, including reasonable attorneys' fees and
court costs.
7. SOFTWARE LICENSE
(a) nFront and/or its suppliers have designed, developed, and made
available proprietary computer Software containing trade
secrets of nFront and/or its suppliers. Use of this Software
is strictly governed by this Agreement. No title or ownership
in the Software is transferred to Customer. Customer shall not
copy or in any way duplicate the Software, except for
reasonable backup procedures approved by nFront. The Software
may not be assigned, sublicensed, or otherwise transferred or
used by Customer for the benefit of a third party.
(b) Customer shall hold the Software, together with all materials
and knowledge related thereto obtained by Customer, in
confidence, and shall use reasonable controls to protect the
confidential nature of the Software and such related materials
and knowledge.
(c) Customer agrees to execute any documents reasonably requested
by nFront with respect to the Software of any third party
licensed or sublicensed by nFront to Customer hereunder.
8. BASIC MAINTENANCE PERIOD
The Basic Maintenance Period commences on Monday and continues through
Friday of each week (8:00 a.m. to 5:00 p.m. Customer Local Time),
except on any day on which banking institutions in Athens, Georgia, are
authorized by law or executive order to close ("Holidays").
9. EXTENDED MAINTENANCE PERIOD (IN HOUSE CUSTOMERS ONLY)
The Extended Maintenance Period (all Customer local times):
Initial all that apply: Surcharge
______ Monday through Friday* 8:00 a.m. to 8:00 p.m. 4%
______ Monday through Friday* 8:00 a.m. to 12:00 midnight 8%
______ Monday through Friday* 24 hours starting 8:00 a.m. 16%
______ Saturday* 8:00 a.m. to 5:00 p.m. 9%
______ Saturday* 8:00 a.m. to 8:00 p.m. 10%
______ Saturday* 8:00 a.m. to 12:00 midnight 12%
______ Saturday* 24 hours starting 8:00 a.m. 14%
______ Sunday or Holiday 8:00 a.m. to 5:00 p.m. 16%
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______ Sunday or Holiday 8:00 a.m. to 8:00 p.m. 19%
______ Sunday or Holiday 8:00 a.m. to 12:00 p.m. 22%
______ Sunday or Holiday 24 hours starting 8:00 a.m. 27%
*Except Holidays
10. COVERED MAINTENANCE
(a) General
nFront will provide the maintenance required to assure that
the Software operates according to nFront's standard
specifications. Such maintenance will be performed during the
Basic Maintenance Period, and, if Paragraph 9 of this
Agreement applies, during the time periods specified therein.
(b) Software Maintenance
Software Maintenance includes:
(i) New software releases of existing licensed
products/modules
(ii) Application updates
(iii) Mandatory federal regulatory compliance
(iv) Malfunction remedies ("Bug Fixes")
(v) Documentation maintenance
(vi) Remote diagnostics
(vii) Service desk and dispatch
(viii) Non-chargeable user error remedies
It is the policy of nFront to provide improvements to the
Software and to assist the Customer in its duty to comply with
mandatory federal governmental regulations applicable to the
data utilized in the Software. nFront reserves the right to
discontinue support of previous versions of Software one
hundred eighty (180) days after the availability of a new
release. Failure of the Customer to install Software releases
or any other correction or improvement provided by nFront
shall relieve nFront of responsibility for the improper
operation or any malfunction of the Software as modified by
any subsequent correction or improvement, but in no such event
shall any fees paid (or to be paid) by Customer be returned to
Customer, and nFront shall be released thereafter from its
obligation to support the Software as provided herein.
(c) Non-Covered Maintenance
Covered maintenance does not include the following: (i)
maintenance outside the agreed Basic Maintenance Period unless
and to the extent indicated in Paragraph 9 of this agreement;
(ii) maintenance required by: (a) operator error or improper
operation of the Software, (b) modifications or additions to
Software performed by other than nFront personnel or by their
designees, (c) modifications or additions by Customer to
equipment such that the Software requires modifications in
order to operate according to nFront documentation, (d) damage
to Software by Customer's employees or third parties, (e)
causes beyond the reasonable control of nFront including, but
not limited to, acts of God or public enemies, labor disputes,
supplier or materials shortages, embargoes, rationing, acts of
government authorities, utility or communication
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failures, epidemics, riots, strikes, or war, or (f) electrical
disturbances, outages or brownouts; (iii) nFront's requested
involvement in determining or solving a problem on Software
not covered by this Agreement; (iv) Software modification or
customization requested by Customer.
11. SOFTWARE ACCEPTANCE DATE
The Software Acceptance Date shall be the date the Software is first
used for daily operations by Customer.
12. DISCLAIMER
EXCEPT TO THE EXTENT OTHERWISE SPECIFICALLY STATED IN THIS AGREEMENT,
NFRONT DISCLAIMS ALL WARRANTIES ON THE SOFTWARE AND SERVICES FURNISHED
HEREUNDER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL
NFRONT'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID TO
NFRONT UNDER THIS AGREEMENT DURING ANY PERIOD OF TWELVE (12)
CONSECUTIVE MONTHS. NFRONT SHALL NOT BE LIABLE IN ANY EVENT FOR DAMAGES
RESULTING FROM LOSS OF DATA, LOSS OF PROFITS, USE OF PRODUCT, OR FOR
ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF NFRONT'S LIABILITY
SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR
TORT, INCLUDING NEGLIGENCE. ANY ACTION AGAINST NFRONT MUST BE BROUGHT
WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
13. TERMINATION
nFront may, at its option, terminate this Agreement upon notice to
Customer if Customer fails to comply with any of the terms and
conditions hereof, including, without limitation, payment terms,
applicable to Customer. Upon notice of termination of this Agreement
under this Paragraph 13, or upon any other termination or expiration of
this Agreement, Customer agrees to discontinue all use of the Software
and return to nFront all copies of the Software and related
documentation in Customer's control or possession, together with a
written certification that it has done so. No termination of this
Agreement by nFront shall constitute a waiver of any rights available
to nFront as a result of any breach of this Agreement by Customer.
14. EXCUSABLE DELAYS
nFront shall not be liable for delays in delivery, failure to deliver,
or otherwise to perform any obligation hereunder when such delay or
failure arises beyond the reasonable control and without the fault or
negligence of nFront, including, without limitation, such causes as
acts of God or public enemies, labor disputes, supplier or material
shortages, embargoes, rationing, acts of local, state, or national
governments or public agencies, utility or communication failures,
fire, flood, epidemics, riots, strikes, or war. The time for
performance of any obligation delayed by such events will be postponed
for a period equal to the delay, unless Customer and nFront agree to
the contrary in writing.
15. INTELLECTUAL PROPERTY RIGHTS.
nFront shall indemnify Customer from any and all damages and costs
finally awarded for infringement of any valid United States patent,
trademark, or copyright in any suit based upon the license by nFront or
the proper use by Customer of the Software hereunder, where nFront is
the infringer with respect thereto, and from reasonable expenses
incurred in defense of such suit if nFront does not undertake the
defense thereof, provided that nFront is promptly notified of any such
suit, and, at its option, is given full and exclusive authority for the
control and defense of the same and all negotiations for its settlement
or compromise, and,
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further provided that this indemnity shall not extend to infringement
resulting from: (i) nFront's compliance with Customer's designs,
processes, or formulas; (ii) a combination with or an addition to the
Software of any software not supplied by nFront hereunder; or, (iii) a
modification of the Software by any person other than nFront. If any
claim has occurred, or in nFront's opinion is likely to occur, Customer
shall permit nFront, at nFront's option and expense, either to procure
for Customer the right to continue using the Software or to replace or
modify the same so that it becomes non-infringing. If neither of the
foregoing alternatives is acceptable to nFront, Customer shall return
the Software on written request by nFront and this Agreement shall
terminate with no continuing obligation or liability of nFront to
Customer. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF
NFRONT FOR INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESSED OR
IMPLIED, IN REGARD THERETO.
16. NOTICES
Whenever any party hereto desires or is required to give any notice,
demand, consent, approval, satisfaction, or request with respect to
this Agreement, each such communication shall be in writing and shall
be effective only if it is delivered by personal service (which shall
include delivery by delivery service, over-night delivery service,
telecopy, or telefax) or mailed, by United States certified mail,
postage prepaid, and addressed as follows:
If to nFront: nFront, Inc.
0000 Xxxxxxxx Xxxx Xxxx, Xxxxx 000X
Xxxxxx, Xxxxxxx 00000
Attn.: President
Facsimile: (000) 000-0000
If to Customer: Customer's Address as specified on
the signature page hereof
Facsimile: (xxx) xxx-xxxx
Such communications, when personally delivered, shall be effective upon
receipt, but, if sent by certified mail in the manner set forth above,
shall be effective three (3) business days following deposit in the
United States mail. Any party may change its address for such
communications by giving notice thereof to the other party in
accordance with the requirements of this section.
17. MISCELLANEOUS
Except as otherwise provided herein, this Agreement, including any
attachments hereto, constitutes the entire agreement between Customer
and nFront, and there are no other agreements, representations, or
warranties, expressed or implied, written or oral. The validity,
enforcement, interpretation, and construction of this Agreement shall
be determined in accordance with the laws of the State of Georgia. Each
party consents to the exclusive personal jurisdiction and venue of the
state and federal courts with jurisdiction in Xxxxxx County, Georgia
for a resolution of all disputes arising hereunder. If any provision of
this Agreement shall, for any reason, be held unenforceable in any
respect, such unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed to limit the application
of such unenforceable provision to the minimum extent necessary to
render the same enforceable, and, if such a limiting construction is
not possible, such unenforceable provision shall be deleted as if never
contained herein. Special provisions to this Agreement, if any, shall
be attached as exhibits or addenda hereto, and shall be binding only
when executed or initiated by authorized representatives of Customer
and nFront. Any such special provisions shall control any conflict with
the provisions hereof Customer may not assign its rights hereunder or
delegate its duties hereunder, whether voluntarily, involuntarily, by
operation of law or otherwise, without the prior written consent of
nFront, which consent may be withheld in the sole discretion of nFront.
The headings and sub-headings used in this Agreement are for
convenience only and do not limit or amplify the terms hereof. The
authorization, following the execution of this Agreement, of additional
workstations or items of software shall be deemed an amendment to this
Agreement binding
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upon the parties during the entire term hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
indicated below. This Agreement shall be effective, following execution by
Customer, upon acceptance by nFront at its principal place of business indicated
herein.
ACCEPTED:
Customer: nFront:
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Signature Signature
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Name Name
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Title Title
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Date Date
BILLING ADDRESS:
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