BNI, INC.
SOFTWARE LICENSE, SUPPORT AND USAGE AGREEMENT
Recitals
THIS AGREEMENT made this 14th day of February, 1997, by and between BNI,
INC., a Florida corporation, (hereinafter referred to as "BNI"), and PINNACLE
PORTFOLIO SERVICES LLC, a Delaware limited liability company (hereinafter
referred to as "customer"). BNI will (1) furnish Licensed Program to the
customer, (2) provide optional materials in support of such Licensed Program(s),
(3) grant the customer a non-transferable, exclusive license to use the program
and materials, (4) provide services as described herein.
Terms
1. Licensed Program. The term "Licensed Program" in this Agreement shall
mean a licensed data processing program as described on "Exhibit A" attached
hereto, as modified by the Agreed Changes (hereinafter defined), including,
without limitation, the System Documentation source codes for the Licensed
Program, and all related materials, documentation, manuals, xxxx documentation,
training materials and documentation provided by BNI with respect to such
Licensed Program. As used herein, the term "System Documentation" shall mean the
documentation with respect to the Licensed Program which is described on
"Exhibit A-1" attached hereto.
As used herein, the term "Agreed Changes shall mean the changes to the
computer program covered by this Agreement to be made by BNI which will (1)
customize the computer screen layouts to consolidate existing screens in BNI's
existing program as designated by customer, (2) provide queuing through the
computer program that is automated based on user parameters specified by
customer, (3) include credit scoring in the program provided by customer, (4)
include management reports designed by customer, (5) customize the original and
credit functions in the program to meet customer's specifications, and (6)
integrate the program with the NADA valuation computer program and database. As
soon as reasonably practicable after the execution and delivery of this
Agreement, BNI and customer agree to use commercially reasonable efforts to
formulate a written agreed-upon description of the changes which will need to be
made to BNI's existing computer program in order to implement each of the Agreed
Changes.
2. Confidentiality. Customer agrees to use commercially reasonable efforts
to keep confidential the written information provided by BNI with respect to the
Licensed
Program. The term "Confidential Information" as used herein shall not include
information which (1) becomes generally available to the public as he result of
a disclosure by BNI, (2) was available to customer or any permitted party on a
non-confidential basis prior to its disclosure to customer by BNI, and (3)
becomes available to customer or any Permitted Party on a non-confidential basis
from a source other than BNI provided such source is not required to keep such
information confidential by law or confidentiality agreement with any other
disclosing party. Customer agrees that customer will not disclose such
confidential information to any third party except the following parties in
connection with the use of the Licensed Program: (a) beneficial owners,
partners, lenders, potential and current syndication investors, employees,
officers and directors of customer; National Auto Finance Company LLC ("NAFC")
or Auto Credit Clearinghouse LLC ("ACCH"); (b) accountants, auditors, rating
agencies and government regulatory agencies; (c) political purchasers of, or
merge candidates with, customer or any of its affiliates; and (d) the agents,
representatives, attorneys, accountants, financial advisors and other
professional advisors and consultants of any of the Persons listed in clauses
(a), (b) and (c); ([a], [b], [c], and [d], individually, a "Permitted Party" and
collectively the "Permitted Parties"). Any other parties, the customer will need
written consent by BNI for disseminating confidential information. Further, any
information requested for Permitted Parties concerning the technical
documentation specifically, but not limited to System Documentation, system
specifications and source code must have BNI's written consent which will not be
unreasonably withheld.
Customer and each Permitted party may disclose only Confidential
Information as required by law. Should customer be served with any subpoena or
other court order which requires the disclosure of any of the Confidential
Information, customer shall promptly deliver written notice of same to BNI.
Customer will not reveal any part of the Confidential Information until customer
has notified BNI in writing and BNI has had a reasonable time to seek, if it so
chooses, a protective order to prevent or limit disclosure of the Confidential
Information.
3. Term of Agreement. This Agreement shall become effective on the date
signed by BNI. This Agreement is for a term beginning with the effective date,
and continues for ninety-nine (99) years from the effective date.
4. Title: Title to the Licensed Program(s), shall at all times remain with
BNI during and after the termination of this Agreement. The customer acquires no
property rights to the Licensed Program(s) which shall at all times remain with
BNI. BNI grants the customer a non-exclusive and non-transferable license to use
the Licensed Program(s).
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5. Use of System. The customer acknowledges that the Licensed Program(s)
are owned by BNI and constitute a valuable asset and trade secret of BNI, (and
that any information with respect thereto, is confidential). Accordingly, the
customer agrees as follows:
(a) Subject to the provisions of Section 5(b), the Licensed
Program(s) may be used in multiple locations by customer provided that
customer shall provide BNI with prior written notice of the location of
each site in which such program(s) are being used. Notwithstanding the
multiple location sites, customer agrees that all support obligations of
BNI with respect to the Licensed Program(s) shall be required and received
from one site designated by the custome, which site may be changed by
customer from time to time by giving seven (7) days' written notice to
BNI. See attached "Exhibit B" as to current location. This restriction
shall not prohibit the customer from moving the location so long as the
customer gives prior seven (7) days' written notice to BNI (except in a
bona fide emergency relocation). An additional support fee is required for
the BNI support service to be provided by BNI to an additional entity such
as a parent, subsidiary or 50% controlled entity of customer, if
applicable, except that (1) NAFC and (2) ACCH shall be entitled to use the
Licensed Program without the payment of any additional fees, subject
however to the provisions of this Section 5(a).
(b) Notwithstanding anything to the contrary in this Agreement, (1)
in the event customer elects to offer customer's data processing services
to NAFC and ACCH pursuant to terms acceptable to customer, and NAFC and
ACCH accept such offer pursuant to a written agreement by and among
customer, NAFC and ACCH (such agreement, the "Sublicense Agreement"),
then, NAFC and ACCH shall have the right, without the prior written
consent of BNI, to use the Licensed Program(s) and receive all of the
benefits and services under this Agreement, without the payment of an
additional license fee or an additional annual support fee; and (2)
customer shall be entitled to use, employ and utilize all or any portion
of the Licensed Program to provide, in exchange for fees and other
compensation which shall not be shared by, or paid to, BNI in any way, all
manner of services to any entity and/or any of their respective portfolios
or assets, including, without limitation, origination services, servicing
services, collection services, securitization related services or
otherwise.
(c) In the event of a Sale of the Business (hereinafter defined),
merger, corporate restructuring, or consolidation (collectively, a "Major
Transaction") of the customer and the new customer or surviving customer
(in the case of the Sale of the Business) desires to continue to use the
Licensed Program, then, the surviving entity
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or purchaser, as the case may be, shall execute and deliver to BNI an
agreement in substantially the form of this Agreement on or before thirty
(30) days after such Major Transaction. In the event that such entity or
purchaser does not desire to execute and deliver such new agreement, then,
on or before the expiration of such 30-day period, such entity or
purchaser, as the case may be, shall send written notice to BNI that such
entity or purchaser, as the case may be, desire to terminate this
Agreement, in which case the terms of Section 8 shall apply for all
purposes. Customer shall not be required to obtain the consent of BNI in
connection with any Major Transaction involving customer. As used herein,
the term "Sale of the Business" shall mean the collective reference to the
sale or other disposition of all or substantially all of the assets or
ownership interests of the entity in question.
(d) Except as set forth in this Section 5(d), no transfer fee,
additional or increased support and usage fee, or other payment shall be
required in connection with a Major Transaction involving customer and/or
NAFC or their respective successors and assigns.
(1) In the event that, at any time during the term of this
Agreement, 51% of both NAFC and customer is not owned by the same
beneficial owner group, then, the entity that is transferred shall be
obligated to pay to BNI a one-time transfer fee of $375,000 on or before
30 days after the closing of such transaction. Such transferred entity
shall execute and deliver an agreement with BNI substantially similar to
this Agreement which shall govern the use of the Licensed Program by such
transferred entity. Thereafter, both entities shall be obligated to pay
support payments to BNI under their separate agreements with BNI, in the
event that such entities elect to continue to utilize BNI's support
services with respect to the Licensed Program. No additional transfer fees
or other payments shall be payable by either customer or NAFC (or their
respective successors and assigns) in connection with any subsequent Major
Transactions involving either customer or NAFC (or their respective
successors and assigns), so long as in each such transaction, the "selling
entity" transfers to the "purchasing entity" all of the rights to use the
Licensed Program(s) following the consummation of such Major Transaction
and the "selling entity" does not retain any such rights to use the
Licensed Program.
(2) No transfer fee shall be payable to BNI if (1) 51% or more
of either customer or NAFC is sold to the other party or (2) 51% or more
of both NAFC and customer is sold to the same beneficial owner group. See
Addendum attached hereto.
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(e) The customer agrees with respect to the Licensed Program(s),
that the customer has examined the program(s), and the customer has
approved its selection to achieve the customer's intended results, and its
use and the program(s), are suitable for and fit customer's intended use.
Subject to warranties of BNI set forth in Section 6, the customer further
accepts responsibility for its selection of the Licensed Program.
(f) BNI acknowledges that the customer is a newly formed legal
entity. The customer agrees that at least 51% of the ownership of both
NAFC and customer is held by the same beneficial owners as of the date
hereof. See Addendum attached hereto.
6. Customer Satisfaction Guarantee. For a period of ninety (90) days after
the Production Environment Date (hereinafter defined), BNI represents and
warrants to customer (and, if applicable, NAFC and ACCH) that the Licensed
Program(s) shall perform in the manner described in the System Documentation
(hereinafter defined), as amended by the Agreed Changes (hereinafter defined).
For the entire term of this Agreement, BNI hereby represents, warrants and
covenants with customer and, if applicable, NAFC and ACCH as follows: (1) BNI is
the owner of 100% of the rights, titles and interest in and to the Licensed
Program(s); (2) BNI is not, in any way, prohibited from granting any of the
rights to customer which are set forth in this Agreement with respect to the
Licensed Program; (3) this Agreement constitutes a legal, valid and binding
obligation of BNI enforceable in accordance with its terms, and the execution
and delivery of and performance under this Agreement are within BNI's powers and
have been duly authorized by all requisite corporate action, (4) there is no
pending or, to the knowledge of BNI, threatened litigation by or against BNI,
any director, officer or shareholder of BNI which could adversely affect title
to the Licensed Program(s) or any part thereof or the ability of BNI to perform
its obligations hereunder; (5) no consent or approval of any entity or of any
governmental agency or authority is required with respect to the execution and
delivery of this Agreement by BNI or the consummation by BNI of the transactions
contemplated hereby or the performance by BNI of its obligations hereunder, and
(6) all of the information, reports, correspondence and other documentation
generated or created by Licensed Program complies and shall comply with all
federal and state laws, rules and regulations related thereto which are then in
effect, including without limitation, Truth in Lending Laws and regulations,
usury laws, consumer credit laws, installment sales laws, state and federal fair
debt collection laws. Each of the representations and warranties of BNI which
are set forth in clauses (1) through and including (6) shall continue in full
force and effect until the termination of the term of this Agreement, provided
however, that the
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representation and warranty set forth in clause (6) shall apply to the time
period covered by BNI updated information which has been provided by BNI. For
instance, if BNI has provided to customer the 1997 updated information,
including legal updated information, to the Licensed Program, but not the 1998
updated information because customer had elected not to continue such support by
BNI and not to purchase such updated information, then BNI would not be
responsible for any change in the law after termination of the support services.
As used herein, the term "Production Environment Date" shall mean the date
that customer is performing its day to day operations, including, if applicable,
servicing the existing portfolio of NAFC and ACCH, at one location, pursuant to
the Sublicense Agreement on the Licensed Program(s) (which "existing portfolio"
shall not include the portfolios of NAFC and ACCH which are presently being
serviced by World Omni unless customer timely elects to accomplish the
conversion described in Section 16(a) with the assistance of BNI personnel),
without any major interruptions caused by the Licensed Program(s) not working
according to System Documentation as amended by the Agreed Changes. It is agreed
that BNI and customer shall use their respective commercially reasonable efforts
to achieve the "production Environment Date" as soon as reasonably practicable
after the execution and delivery of this Agreement by customer and BNI. The
"Production Environment Date", however, will not be extended further than one
hundred twenty (120) days from the date of delivery of the Licensed Program(s)
unless agreed to in writing by both parties.
THE EXPRESSED WARRANTIES CONTAINED IN THIS AGREEMENT CONSTITUTE THE ONLY
WARRANTIES MADE BY BNI, EITHER EXPRESSED OR IMPLIED,WITH RESPECT TO THE LICENSED
PROGRAM(S) AND THE SERVICE PERFORMED BY BNI HEREUNDER. THERE ARE NO OTHER
WARRANTIES, EXPRESSED OR IMPLIED, WHICH EXTEND BEYOND THE FACE HEREOF, INCLUDING
ANY OTHER IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL BNI BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES.
7. Customer Obligations. The customer's basic commitments and obligations
pursuant to this Agreement, in addition to payment charges as set forth in
Section 17 include the following:
(a) The customer will designate a responsible person, reasonably
acceptable to BNI, to represent customer and help coordinate customer'
personnel during the
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installation period and thereafter. Customer may replace such person by
giving written notice to BNI, subject to BNI's reasonable approval.
(b) The customer will ensure that all payments and charges billed by
BNI will be paid timely.
8. Termination. In the event this Agreement is terminated by BNI following
the occurrence of an event of default by customer, then, on the effective date
of such terminations set forth in Section 10, customer shall promptly return the
Licensed Program(s) and any related documentation provided by BNI to BNI and
shall cease to use such Licensed Program.
After customer has paid the one-time license fee for the Licensed Program,
in accordance with Section 17, then the customer shall have the right to
terminate this Agreement at any time, for any reasons or for no reason by giving
written notice of termination by BNI. However, any provide ongoing technical
support and services and shall not require customer (and, if applicable, NAFC
and ACCH) to return the Licensed Program provided by BNI to BNI and shall not
required customer (and if applicable, NAFC and ACCH) to cease to use such
Licensed Program.
9. BNI'S Obligations. BNI's basic commitments and obligations to this
Agreement, in addition to the express warranties and representations set forth
in Section 6, include the following:
(a) BNI will designate a responsible person, reasonable acceptable
to customer to represent BNI and coordinate BNI's personnel during the
installation period and thereafter. BNI may replace its person by giving
written notice to customer, subject to customer's reasonable approval.
(b) BNI shall use its commercially reasonable efforts to achieve the
Production Environment Date as soon as reasonably practicable.
(c) To the extent requested by customer from time to time BNI shall
use its commercially reasonable efforts to provide ongoing technical and
user support services with respect to the Licensed Program(s) including
all enhancements and improvements thereto.
(d) BNI shall provide improvements to the Licensed Programs it deems
necessary to maintain competitive marketability for the licensed products
and to assist
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customer in complying with federal and state regulations applicable to the
data used in the Licensed programs. There is no additional cost for such
enhancements if customer is still maintaining the annual support. However,
if the customer is not receiving the annual support and usage, then no
additional enhancements will be forthcoming and if the law changes after
the expiration of the support regarding the Licensed Programs(s), the
warranties shall expire as to those specific affected areas of the law
which have changed since the last such legal update enhancement. For each
twelve (12) month period in which customer has paid the applicable support
and usage fee, BNI shall provide to customer, without additional charge,
the necessary database information in diskette form to update the Licensed
Program to conform the Licensed Program to changes in state and federal
laws and regulations enacted or in effect since the last such update.
10. Default. Each of the following events shall constitute an "event of
default" under this Agreement.
(a) The failure of customer to make any required payments under this
Agreement, as the same shall become due and payable; provided that such
failure continues after the expiration of thirty (3) days after receipt by
customer of written notice and demand for payment by BNI;
(b) The failure of either party to timely and promptly observe, keep
or perform any covenant, agreement, warranty or condition therein required
but not to be reserved, kept or performed, if such failure continues for
thirty (3) days after receipt by such breaching party of written notice
and demand for the performance of such covenant, agreement, warranty or
condition by the non-breaching party; or
(c) Any representation or warranty contained in this Agreement made
by BNI to customer is determined to be false and/or misleading in any
material respect;
Upon the occurrence of an event of default by customer, BNI shall be entitled to
terminate this Agreement by giving written notice of termination to customer,
which termination shall be effective for all purposes sixty (60) days after the
date such written notice is received by customer. Customer agrees upon the
occurrence of any actual or threatened breach by customer of the restrictions
upon the use, sale, transfer, or disclosure of the Licensed Programs(s), that
BNI will suffer irreparable harm, that monetary damages alone shall not be
sufficient remedy of protection for BNI, and that BNI shall be entitled to such
injunctive or other equitable relief as may be deemed proper or necessary by a
court of competent jurisdiction.
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11. Limitation of Liability. BNI shall not be liable to any entity other
than customer for the failure of BNI to fulfill its obligations under this
Agreement. Customer shall not be liable to any entity, other than BNI, for the
failure of customer to fulfill its obligations under this Agreement. The
liability of BNI under this Agreement shall be limited to the actual damages
incurred by customer caused by the breach of BNI of its obligations under this
Agreement, not to exceed the sum of (1) three times the total amount of one-time
license fee paid by customer, to BNI under this Agreement, plus (2) any and all
attorney fees and expenses or other collection costs incurred by customer to
collect the amounts owing by BNI to customer. The liability of customer under
this Agreement shall be limited to the actual damages incurred by BNI caused by
a breach by the customer of its obligations under this Agreement, not to exceed
the sum of (1) three times the total amount of one-time license fee payable
under this Agreement, plus (2) any and all attorney fees and expenses and other
collection costs incurred by BNI to collect the amounts owing by customer to BNI
under this Agreement. BNI has no liability to any party other than customer
arising out of customer's use of BNI material under this Agreement. BNI has no
liability to any party, if the customer or authorized user does not use the
Licensed Program according to System Documentation as amended by the Agreed
Changes. BNI makes no warranties, either expressed or implied, with respect to
the Licensed Program(s) except as set forth herein. (This limitation of
liability provision shall only apply in regards to the customer, if the original
one-time license fee has been paid in full).
12. Expenses and Cost of Collection. BNI shall have the right to collect
from customer reasonable expenses, specifically including, but not limited to
attorney's fees and costs incurred in enforcing the collection of charges,
taxes, or any other sums payable hereunder, or in connection with the
enforcement by BNI of its rights or remedies, hereunder. No failure of BNI to
demand, when due, any installment, tax or fees, shall be deemed as a waiver by
BNI of reasonable expenses, specifically including, but not limited to
attorney's fees and costs incurred in enforcing the performance of BNI of its
obligations under this Agreement or in connection with the enforcement by
customer of its rights or remedies, hereunder.
13. Execution. This Agreement shall not be binding until it is executed by
BNI and customer.
14. Entire and Separate Agreement Changes. This Agreement contains the
entire agreement between parties, and may not be altered, amended, modified, or
otherwise changed nor may the printed form of this Agreement be modified, except
in writing, and signed by an authorized officer of BNI and customer.
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15. Patent and Copyright. BNI agrees to defend, indemnify, and hold
harmless, the customer, NAFC, ACCH, customer's parent, subsidiary and/or fifty
percent (50% controlled persons or entities (collectively, the "Indemnified
Parties") from and against any loss, claim, damages, and costs (including
attorney's fees), arising out of any action against any of the Indemnified
Parties asserting a claim that such Indemnified Party's use of the Licensed
Program as contemplated by this Agreement infringes any patent, copyright,
tradename, trade secret, or other property right held by another party.
16. General. This Agreement shall be governed and construed in accordance
with the laws of the State of Florida.
17. Investment:
Total Annual
(a) Total Licensed One-Time Diskette Support
Program Description License Fee and Usage Fee Size/Type Required
Full System including 3.5" __________
Origination Servicing, 5.25"__________
Collections and Securitization HD ____________
$750,000.00 $112,500.00 LD ___________
Payments:
- $200,00 at contract signing - $80,000 per month for three (3) months.
- $80,000 on the date that the Licensed Program is delivered and
installed in accordance with the Licensed Program documentation as
amended by the additional changes.
- $230,000 on the Production Environment Date.
In the event that Sublicense Agreement is executed and delivered and customer
elects under such agreement to provide all of the servicing that World Omni
currently provides to NAFC and ACCH, then, BNI shall charge customer a $90.00
per hour per BNI employee charge, plus normal out-of-pocket expenses, to convert
all of the data presently processed by World Omni for NAFC and ACCH to
customer's computer data processing system. BNI shall give customer ten (10)
days written notice of the last date in which customer may elect to include such
conversion the determination of the "Production Environment Date." In the event
customer elects to accomplish such conversion within such 10-day period, then
the conversion of the NAFC and ACCH data processed by World Omni shall be
included in the
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determination of the "day to day operations" of customer for the purposes of
determining when the "Production Environment Date" occurs.
(b) The "implementation/training period" is defined as the time
between when the Licensed Program is installed and functioning according
to the System Documentation as amended by the Agreed Changes at customer's
designated location and when customer has formally accepted the initial
installation of the Licensed Program(s). All agreed-up modifications will
have been made and tested prior to the Licensed Program being installed at
customer's location, once the Licensed Program is installed, the customer
has five (5) working days to identify any discrepancies in the Licensed
Program. If such discrepancies are found, BNI shall promptly correct such
discrepancies and a new 5 (five) working day test period shall commence.
This procedure shall continue until no discrepancies in the Licensed
Program occur during a 5-working day testing period. At the expiration of
a 5-working day period without the occurrence of any discrepancies, then,
the "implementation/training period: shall commence. No $90.00 per hour
implementation/training fees shall accrue or be payable by customer to
BNI, as described in Section 17(a) until after the
"implementation/training period" commences.
(c) BNI shall provide the necessary staff to implement/train, at one
location, the employee(s) of customer, NAFC and ACCH to use the Licensed
Program. Customer agrees to provide trainable employees. BNI shall
receive, as compensation for such implementation/training, a fee of $90.00
per hour per BNI employee for each hour of implementation/training
conducted by BNI plus normal out-of-pocket expenses. The
implementation/training fees shall be payable at the end of every two (2)
calendar weeks upon receipt from BNI of an invoice of such
implementation/training hours. BNI agrees that the implementation/training
process shall not be complete until BNI delivers to customer the System
Documentation for each user at a reasonable fee per manual cost (15 copies
are included in the initial cost) which sets forth the procedure for
workflow and procedures for each available function for each computer
screen in such Licensed Program. Further, the customer must accept in
writing the Licensed Program as contemplated in Section 17(b).
(d) BNI agrees to maintain a rate of $90.00 per hour, subject to an
annual rate change as described in Section 17(g), plus normal
out-of-pocket expenses, for providing computer programming services
requested by customer (in addition to the periodic enhancements and
updates provided by BNI under this Agreement for no additional charge) to
the Licensed Program. These are billed every two (2) weeks and are payable
upon receipt.
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(e) The initial annual support and usage fee is payable ninety (90)
days after the Production Environment Date for the following twelve (12)
month period. The end of the initial twelve (12) month period is the
support anniversary date.
(f) If the customer elects such support service for any subsequent
calendar year, the applicable support usage fee shall be payable in four
(4) equal installments on a quarterly basis during such twelve-month
period.
(g) On the support anniversary date, BNI shall be entitled to adjust
each subsequent twelve (12) month support, usage fee and hourly rate
charged for modification and/or enhancements to the Licensed Program, to
the lesser of ten percent (10%) or the change in the Consumer Price Index.
This increase shall be announced by BNI on or before one hundred twenty
(120) days prior to the applicable support anniversary date.
18. Charges, Applicable Taxes, and Other Fees: In addition to the charges
due under this Agreement, the customer agrees to pay any property, sales, use,
and/or, excise taxes or other similar taxes which are assessed or payable on
account of this Agreement, any.
19. Support and Usage Fee: For the term of this Agreement, BNI will
provide on-going technical and user support services, including all enhancements
to the License Program(s) described herein. On or before ninety (90) days prior
to each support anniversary date, customer shall give written notice to BNI as
to whether customer desires to receive BNI support services for the following
twelve (12) month period. In the event that customer requests such support in
writing, BNI shall provide such support services at customer's request for such
twelve (12) month period. BNI shall be obligated to offer such support services
in any twelve (12) month period in which customer requests such support and
customer shall be entitled to not request such support in a particular twelve
(12) month period or periods and request such support in subsequent periods. In
the event customer fails to request such support for any time period, customer
shall retain the rights to use the Licensed Program(s) without obligation to pay
any usage, fees, royalties, or fees or other payments to BNI and all warranties,
either expressed or implied, shall cease upon the expiration of the current
support term and any unauthorized modifications to the Licensed Program will
cancel all warranties either expressed or implied with the exception of Section
6 concerning legal updates. If customer subsequently elects to license the
enhancements to the Licensed Program(s), the customer acknowledges that these
updates and/or enhancements may produce inaccurate results if the Licensed
Program(s) have been modified. In the event that customer elects not to use
BNI's support services for any 12 month period pursuant to
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Section 19, then, customer shall have the right and option to purchase the
enhancements and updated information for the Licensed Program for such 12 month
period at a price reasonably acceptable to BNI and customer.
The policy of BNI is to provide improvements to maintain competitive
marketability of its products, and to asset customer in its duty to comply with
appropriate governmental regulations applicable to the data used in the Licensed
Program(s). BNI, therefore, reserves the right to make such changes in the
Licensed Program(s), as it deems appropriate. As part of its services,
hereunder, BNI will provide the customer with the program diskettes and
documentation changes, resulting from the foregoing "Systems Releases."
20. No Conflicting Engagement or Activity. BNI will have necessary
personnel and resources available for the customer to properly install and
implement the Licensed Program. BNI agrees not to exceed at any time, four (4)
installation projects of the Licensed Program(s) at customer's sites until (a)
the Production Environment Date has occurred; or (b) customer has otherwise
consented in writing to any additional projects by BNI or by any affiliate of
BNI.
21. Performance Standards for BNI Support: On or before the occurrence of
the Production Environment Date, BNI and customer agree to establish performance
criteria for BNI, response times for BNI and monetary fines payable by BNI for
certain specified failures with respect to the Licensed Program in connection
with the support services to be produced by BNI under this Agreement.
Notwithstanding anything to the contrary set forth in this Agreement, BNI agrees
that 50% of the initial support and usage fee of $112,500.00 shall not be
payable by customer to BNI until such written criteria, response times and fines
have been agreed to by BNI and customer. BNI covenants and agrees to comply with
such criteria, response times and fines which are set forth in a written
agreement by BNI and customer.
22. Proprietary Customer Enhancement to Licensed Program:
(a) Notwithstanding anything to the contrary set forth in this
Agreement, BNI acknowledges and agrees that changes requested by customer
to existing software programs owned by BNI deemed to be unique by both BNI
and customer, in writing, shall constitute the sole and exclusive
property, valuable asset and trade secret of customer.
(b) BNI agrees to use commercially reasonable efforts to keep
confidential the unique enhancements that are the property of customer
with respect to the
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Licensed Program. The term "Confidential Information" as used herein shall
not include information which (1) becomes generally available to the
public as the result of a disclosure by customer, (2) was available to BNI
or any permitted party on a non-confidential basis prior to its disclosure
to BNI by customer, and (3) becomes available to BNI on a non-confidential
basis from a source other than customer provided such source is not
required to keep such information confidential by law or confidentiality
agreement with any other disclosing party. BNI agrees that BNI will not
disclose such confidential information to any third party except the
following parties in connection with the use of the Licensed Program: (a)
beneficial owners, partners, lenders, employees, officers and directors of
BNI, (b) accountants, governmental regulatory agencies and attorneys. ([a]
and [b] are the "Permitted Parties".) Any other parties, then BNI will
need written consent by customer for disseminating confidential
information.
(c) In the event that customer elects to sell all or any portion of
the Customer Enhancements, customer shall given written notice to BNI and
a first right of opportunity to purchase such change, the "Customer
Enhancements" for the price designated by customer which right must be
exercised on or before ten (10) days after written notice is received by
BNI. In the event that BNI fails to exercise such right, customer shall be
entitled to sell such Customer Enhancements at a price which is equal to
or greater than the designated price. In the event that customer desires
to sell such Customer Enhancements for a price which is less than the
designated price, then, customer shall given such ten (10) day right of
first opportunity to BNI with respect to such new designated price.
BNI AND CUSTOMER ACKNOWLEDGES THAT HE OR SHE HAS READ AND
UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS
AND CONDITIONS.
PINNACLE PORTFOLIO SERVICES LLC BNI, INC.
By: By:
Xxxxxx X. Xxxxxx X. X. _____________
Its: Managing Member Its: President
Date: 2/14/97 Date: 2/19/97
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