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CONFIDENTIAL TREATMENT* EXHIBIT 10.4
* 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 by and between
NFRONT, INC. ("nFront"), a Georgia corporation having its principal offices at
000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 and "BANCTEC, USA, INC."
("BancTec"), a Delaware corporation having its principal offices at 0000 XXX
Xxxxxxx, Xxxxxx, Xxxxx 00000, the Agreement to be effective the 1st day of
March, 1999 (the "Effective Date"). This Agreement is separate and distinct from
and is in addition to the Marketing Agreement entered into by and among the
parties dated the nineteenth (19th) of January, 1999.
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; and
WHEREAS, BancTec is in the business of providing transaction processing
and other administrative and computer processing services to banks and financial
institutions; and
WHEREAS, BancTec desires to offer to its Customer Base (as hereinafter
defined) and potential customers Internet home banking capabilities; and
WHEREAS, nFront desires BancTec to offer nFront's proprietary Internet
home banking system as more fully described in Exhibit A attached hereto (the
"System") to BancTec's Customer Base and to potential Bank customers of BancTec;
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
1.1 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 Marketing Agreement, together with all
exhibits and schedules hereto now or hereafter signed by BancTec 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 a financial institution that offers 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 BancTec during the Term of
this Agreement.
(d) "Documentation" means that portion of the System that provides
installation and operating instructions for use of the System.
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(e) "End-User" means the ultimate user of the System.
(f) "Generic Hardware" means computer equipment (and configurations
thereof) that meets the specifications provided by nFront for use with the
System.
(g) "System" means nFront's proprietary Internet home and/or business
banking system described on Exhibit A of this Agreement, including all future
improvements, enhancements and modifications thereof, and all releases and
upgrades related thereto.
(h) "Sale" and "Resale" and any grammatical variant thereof shall mean
and 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 System is placed at the disposal of the Banks.
(i) "Software" means that portion of the System that is comprised of
computer applications programs intended to be processed in nFront's Internet
Banking Center.
(j) "Term" shall have the meaning set forth in Section 8.1 of this
Agreement.
ARTICLE II
BancTec Appointment
2.1 Appointment. During the Term of this Agreement, nFront hereby grants
to BancTec the non-exclusive right to market and promote the System to its
Customer Base and potential Bank customers of BancTec, and BancTec hereby
accepts such appointment. BancTec may market and promote the System anywhere in
the continental United States but shall have no right to market or promote the
System outside the United States without prior written consent from nFront.
BancTec understands, acknowledges and agrees that this appointment is
non-exclusive as to both the System and the geographic area and that nFront may
appoint itself or through other resellers or agents, resell or market the System
in any geographic area. nFront expressly reserves the right to sell and deliver
the System to any other entity, including Banks. BancTec shall market or promote
the System only to Banks, and shall not market and promote the System to other
parties providing core processing services to Banks, or to Bank service bureaus,
software providers, other marketers of automated bank services or to any other
buyer who intends, directly or indirectly, to resell or license the System
except that BancTec may market and promote the System to entities that BancTec
has licensed to use BancTec's Core Processing solution if BancTec has previously
obtained nFront's written consent to do so. nFront agrees that its consent will
not be unreasonably withheld. BancTec has no authority to appoint any associate
marketers or subdealers of the System without nFront's consent. BancTec, in its
sole discretion, will determine the manner in which BancTec markets and promotes
the System to its Customer Base and the potential Bank Customers of BancTec. Any
Banks that desire to purchase the System will enter into and sign an agreement
directly with nFront. nFront will be solely responsible for invoicing the
purchasers, collecting payment, and providing all installation, maintenance and
support services to the purchasers.
BancTec, in its sole discretion, will determine the manner in which
BancTec markets and promotes the System to its Customer Base and the potential
Bank customers of BancTec. Any Banks that desire to purchase the System will
enter into and sign an agreement directly with nFront. nFront will be solely
responsible for invoicing the purchasers, collecting payment, and providing all
installation, maintenance and support services to the purchasers.
2.2 Relationship between nFront and BancTec. BancTec shall perform its
obligations under this Agreement to market and promote the 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 BancTec, including, but not limited to that of
joint ventures, partners or associates. BancTec 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.
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ARTICLE III
Promotion of Sales, Service and Training and Related Obligations
3.1 Marketing and Promotion. BancTec shall use its commercially reasonable
efforts to market and promote the sale of the System by nFront, which
commercially reasonable efforts shall include, but not be limited to, promotion
of the System to the Customer Base and prompt performance of all of its
obligations under this Agreement.
3.2 Staffing and Training. BancTec shall appoint its technically suitable
employees to market and promote the System, and provide Bank and End User Sales
support. BancTec 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. At BancTec's request, nFront shall
provide periodic routine consultation and advice to BancTec in connection with
BancTec's sales and service hereunder and shall provide at BancTec's cost: (a)
technical, specification and sales advice, (b) assistance and advice concerning
promotional and training programs, and (c) suggestions for new applications for
the System at BancTec's cost. nFront shall furnish BancTec with a supply of
price lists, sales literature, catalogues, specifications for Generic Hardware,
Documentation and advisory assistance with respect to the System. All
proprietary demonstration equipment, manuals, instruction books, contract forms,
sales and promotional materials, Documentation and similar material furnished to
BancTec by nFront, whether furnished free of charge or not, shall remain the
property of nFront and upon request shall be returned to nFront by BancTec.
3.3 nFront to Maintain the System. BancTec acknowledges, understands and
agrees that the System that it shall market and promote to Banks shall remain on
nFront's servers, and that such Banks shall, through BancTec, gain access to the
System only upon execution of a contract with nFront. nFront shall be
responsible for systems maintenance of the System resident on its servers.
3.4 BancTec Promotional Activity. nFront shall not share in the expense of
any advertising or promotional activities by BancTec or other sales promotion
projects except by express agreement in writing. All materials prepared by
BancTec that market and promote the 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 nFront Recordkeeping. nFront shall keep records of its business
relating to the System as may be reasonably required by BancTec. BancTec or its
authorized representative may, from time to time during regular business hours,
examine such records and nFront's accounts relating to the sale and servicing of
the System.
ARTICLE IV
Conditions of Sale
4.1 Fees. The fees for accessing the System by a Bank and/or an End User
and the processing fees for services thereunder shall be as set forth in Exhibit
D ("Fees") attached hereto.
4.2 Invoicing. nFront shall invoice the Banks and/or the End Users for
all Fees associated with the System.
4.3 Marketing Commissions. As compensation for the performance of BancTec's
obligations under this Agreement, BancTec shall be entitled to receive the
percentage of fees actually received by nFront ("Marketing Commissions") as set
forth in Exhibit D attached hereto. nFront shall pay to BancTec the Marketing
Commissions within ten (10) days of the end of the month that nFront receives
receipt of payment by a Bank and/or an End User. BancTec shall receive Marketing
Commissions for each Bank that is (i) registered by BancTec as an active nFront
lead, and (ii) a member of BancTec's Customer Base (either as of the Effective
Date or during the Term of this Agreement) when that Bank buys the System from
nFront; provided, however, that BancTec shall not receive
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Marketing Commissions for any Bank that has purchased the System from nFront
before that Bank becomes a member of BancTec's Customer Base.
4.4 Force Majeure. Neither party shall be liable for loss or damage due to
interruption of service or access to the 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 the other party, 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 EITHER
PARTY BE LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES DUE TO ANY SUCH CAUSE.
4.5 Fee and System Changes. nFront shall have the right to change the
System without notice to BancTec, and shall have the right at any time to
discontinue the sale of any version of the System, to make changes in method of
access or delivery, including interface procedures, and to add improvements, all
without incurring any liability whatever. nFront may change its fees to End
Users for the System upon thirty (30) days' written notice to End Users.
4.6 Taxes and Other Fees. nFront shall pay all license fees, sales, use,
service use, occupation, personal property and excise taxes and any other fees,
assessments or taxes which may be assessed or levied by any federal, state or
local government and any departments and subdivisions thereof, against any of
the Systems ordered by an End User or under BancTec's direct or indirect
control.
ARTICLE V
Warranties
5.1 nFront's Warranty. nFront represents and warrants that the Software is
Year 2000 Compliant. For the purposes of this Agreement, "Year 2000 Compliant"
shall mean that the Software will: (i) report and display all dates, including
dates occurring before and after the year 2000, with a four-digit date; and (ii)
handle all leap years, including but not limited to the Year 2000 leap year,
correctly; provided, however, that nFront shall not be responsible or liable for
any date errors caused or contributed to by any third party software, any
operating systems, or any hardware. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION
5.1 THE 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 BancTec's obligations hereunder,
it shall be necessary for BancTec to demonstrate the System. Accordingly,
subject to the terms and conditions contained herein, nFront hereby grants to
BancTec, and BancTec hereby accepts from nFront, a non-exclusive license (the
"License") of the Software solely for the purpose of demonstrating the System in
operation to potential Bank customers of BancTec.
6.2 Software Covenants. BancTec agrees to comply with each of the
following requirements:
(a) BancTec 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.
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(b) Except as otherwise specifically provided in this Agreement,
BancTec 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.
(c) 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.
(d) Each copy of the Software sold to Banks by nFront shall include a
license agreement, the form of which shall be as set forth in the Exhibit E.
(e) BancTec 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 System. BancTec 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 BancTec receiving the
appropriate United States and foreign government licenses and approvals.
(f) BancTec 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 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.
6.3 Notices; Markings; Trademarks; Tradenames. BancTec agrees to comply
with the following:
(a) BancTec shall not delete any trademarks, tradename or copyright
notice present in, on or displayed by the System, or any part thereof.
(b) BancTec shall not add to any notice present in, on or displayed by
the 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 System
software and/or accompanying packaging or Documentation provided by nFront,
BancTec shall not use any trademarks and/or tradenames of nFront without prior
written approval of nFront.
6.4 Documentation. Each System sold by nFront to a Bank shall include one
(1) set of accompanying Documentation. nFront shall only distribute complete and
separate copies of the Documentation to Banks and shall not reproduce, in whole
or in part, or transfer in any manner to a third party other than a Bank, such
Documentation. Any and all copyrights to such Documentation are and shall remain
the property of nFront.
ARTICLE VII
Confidentiality and Non-Disclosure
7.1 BancTec Obligations.
(a) BancTec recognizes, acknowledges and agrees that during the Term of
this Agreement, nFront may furnish to BancTec certain technical and commercial
information that is proprietary and of value to nFront and that is generally not
known to nFront's competitors or the general public, which information includes,
but is 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"). BancTec recognizes, acknowledges and agrees that
nFront's Confidential Information is to be maintained in secrecy and confidence
by BancTec and BancTec's employees, agents or representatives to whom BancTec
discloses any of nFront's Confidential Information. BancTec agrees for itself
and for each of its
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employees, agents or representatives to whom BancTec 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, BancTec 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 BancTec knows or should have
known was obtained illegally or in violation of this Agreement. Information
disclosed to BancTec by nFront that was previously known to BancTec (and that
can be proven to have been previously known to BancTec) shall not be considered
to be nFront's Confidential Information. In the event BancTec or a
representative of BancTec is requested by law, order of court or any agency to
disclose any of nFront's Confidential Information, BancTec 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, BancTec or a representative of
BancTec is nonetheless compelled by law to disclose any of nFront's Confidential
Information, BancTec or a representative of BancTec, as the case may be, may
disclose such information in such proceeding without liability hereunder;
provided, however, that BancTec gives nFront written notice of the information
to be disclosed within five (5) business days after receipt of such order by
BancTec and, upon nFront's request and at its expense, BancTec 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, upon
receipt of nFront's written request, BancTec 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.
BancTec 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 BancTec or breach by the BancTec of
the covenants contained herein.
(c) BancTec shall disclose nFront's Confidential Information to Banks
without nFront's written permission.
7.2 nFront's Obligations.
(a) nFront recognizes, acknowledges and agrees that during the Term of
this Agreement, BancTec may furnish to nFront certain technical and commercial
information that is proprietary and of value to BancTec and that is not
generally known to BancTec's competitors or the general public, which
information includes, but is 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 ("BancTec's Confidential Information"). nFront recognizes and
agrees that, except as otherwise provided herein, BancTec's Confidential
Information 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 BancTec shall
not be considered to be BancTec'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. Information disclosed
to nFront by BancTec that was previously known to nFront (and that can be proven
to have been previously known to nFront) shall not be considered to be BancTec's
Confidential Information. In the event nFront or a representative of nFront is
requested by law, order of court or any agency to disclose any of BancTec's
Confidential Information, nFront shall give BancTec prompt notice of such
request so that BancTec 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 BancTec'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 BancTec written notice of the information
to be disclosed within five (5) business days after receipt of such order by
nFront and, upon BancTec'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, upon
receipt of BancTec's written request, nFront agrees to return promptly BancTec's
Confidential Information, including all copies thereof, to BancTec or
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to deliver all such information promptly to such party as may be designated by
BancTec. nFront further agrees thereafter not to use or disclose BancTec's
Confidential Information in any manner whatsoever without the prior written
approval of BancTec 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 Effective Date hereof
and shall remain in effect (unless sooner terminated pursuant to Section 8.2
hereof) for five (5) 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 BancTec 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 of this Agreement.
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, has failed to cure such alleged
breach within thirty (30) days after written notice thereof in the case of
failure to pay when due amounts owing to such party, and within sixty (60) 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. Notwithstanding
the foregoing, in the event either party materially breaches any of the
provisions of Articles VI or VII hereof, this Agreement shall be immediately
terminable by the non-breaching party.
8.3 Effect of Termination.
(a) Any termination of this Agreement shall not release either party
from paying any amount which may then be owing to the other party. Either party
may offset and deduct from any or all amounts owed to the other party, if any,
any or all amounts owed by the other party, rendering to the other party the
excess, if any.
(b) In the event of termination of this Agreement by either party or
automatically as provided herein, it is understood that nFront shall not have
any obligation to provide further access to BancTec's Customer Base beyond
nFront's obligations contained in nFront's agreements with Banks that were
entered into prior to termination of this Agreement, however if nFront continues
to provide access to all or any part of BancTec's Customer Base after
termination of this Agreement, such continuation shall not be construed as a
renewal of this Agreement for any further term nor as a waiver of such
termination.
(c) Upon termination of this Agreement, upon receipt of nFront's
written request, BancTec 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 System that BancTec has on
hand. BancTec shall thereupon promptly cease using any trademarks, tradenames,
service marks or other identifying marks owned or controlled by nFront on any of
its materials.
(d) BancTec shall be solely responsible for all commitments incurred or
assumed by BancTec during the Term of this Agreement or thereafter to BancTec's
Customer Base, and nFront shall not be held responsible in any manner therefor,
irrespective of any suggestion or recommendation with respect thereto by nFront
or any of its employees or representatives unless nFront has expressly agreed in
writing to assume the responsibility.
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ARTICLE IX
Premier Partnership Status Provision
9.1 Premier Partnership Status Provision. During the Term of the Agreement,
BancTec will promote and present nFront as BancTec's sole Premier Partner.
"Premier Partner" status means that nFront's System shall be BancTec's highest
recommended Internet banking solution and BancTec will lead all Internet banking
sales with the nFront System. BancTec is not precluded from providing interfaces
to other Internet banking solutions upon Customer's request, however, BancTec
will charge those Customers the necessary interface fees to certify the
non-nFront Internet banking system.
ARTICLE X
Indemnification; Other Relief
10.1 Indemnification by BancTec. Subject to the limitations set forth in
Section 10.5 of this Agreement, BancTec 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 BancTec's gross
negligence and willful misconduct with respect to the System or any part thereof
or any misrepresentations made by BancTec with respect to the System, provided,
however, that in respect of any Claims hereunder against BancTec that arise out
of or result from any alleged gross negligence and/or willful misconduct of
BancTec or any alleged misrepresentation made by BancTec with respect to the
System, BancTec 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, BancTec
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.
(a) Subject to the limitations set forth in Section 10.5 of this
Agreement, nFront shall indemnify, defend and hold harmless BancTec, its
officers, directors, shareholders, employees, agents and affiliates from and
against claims, losses, damages, liabilities or expenses (including, without
limitation, reasonable attorneys' fees and expenses) resulting from or arising
out of nFront's gross negligence and/or willful misconduct with respect to the
System or any part thereof or any misrepresentations made by nFront with respect
to the System, provided, however, that in respect of any claim, suit or
proceeding hereunder against nFront that arise out of or result from any alleged
gross negligence and/or willful misconduct of nFront or any alleged
misrepresentation made by nFront with respect to the System, nFront shall be
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. Notwithstanding the foregoing,
nFront shall not have the authority to settle or compromise any Claim in a
manner that indicates that BancTec contributed to or was responsible for the
cause of any such Claim unless BancTec consents in writing to such settlement.
(b) Subject to the limitations set forth in Section 10.5 hereof, nFront
shall indemnify, defend and hold harmless BancTec, its officers, directors,
shareholders, employees, agents and affiliates from and against any claim, suit
or proceeding based upon an allegation that the System (or any portion thereof)
infringes 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 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:
(i) procure the right for End Users to continue to use
the System; or
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(ii) replace or modify the System with an equivalent
version of the System that is not so infringing.
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 if the arbitration is initiated by BancTec and in
Dallas, Texas if the arbitration is initiated by nFront, 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 BancTec, one
selected by nFront, and one selected by mutual agreement of the arbitrators
selected by BancTec 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 or VII of this Agreement shall result in irreparable harm to a party
for which no adequate remedy at law exists. Accordingly, upon any such breach, a
party shall be entitled to seek 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. 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 that a party seeks enforcement promptly after discovery of such
violation. nFront shall not be required to prove money damages to seek
injunctive relief under this Agreement.
10.5 LIMITATION OF LIABILITY. (a) IN NO EVENT SHALL NFRONT BE LIABLE FOR ANY
LOSS OF PROFIT OR ANY OTHER INDIRECT 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. EXCEPT FOR NFRONT'S OBLIGATION TO INDEMNIFY BANCTEC
UNDER SECTION 10.2 ABOVE, IN NO EVENT SHALL NFRONT'S LIABILITY TO BANCTEC FOR
ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE GREATER OF (i) THE AMOUNT OF
MARKETING COMMISSIONS DUE AND OWING TO BANCTEC, OR (ii) $25,000.
(b) IN NO EVENT SHALL BANCTEC BE LIABLE FOR ANY LOSS OF PROFIT OR ANY
OTHER INDIRECT 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 BANCTEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. EXCEPT FOR BANCTEC'S OBLIGATION TO INDEMNIFY NFRONT UNDER SECTION 10.1
ABOVE, IN NO EVENT SHALL BANCTEC'S LIABILITY TO NFRONT FOR ANY CLAIM ARISING OUT
OF THIS AGREEMENT EXCEED THE GREATER OF (i) THE AMOUNT OF MARKETING COMMISSIONS
PAID TO BANCTEC WITHIN THE THREE (3) MONTH PERIOD PRIOR TO THE ACCRUAL OF THE
CLAIM, OR (ii) $25,000.
10
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 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. Neither party may
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. Notwithstanding the foregoing, nFront may freely and
without the consent of BancTec assign this agreement in connection with the sale
of all or substantially all of its assets or a merger or similar amalgamation.
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
of this Agreement, 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 VI, VII, VIII, X and XI shall
survive any termination or expiration of this Agreement.
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
NFRONT, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------
Its: Chairman/CEO
Date: 3/8/99
BANCTEC USA, INC.
By: /s/ XX Xxxxx
------------------------
Its: VP
Date: 3/1/99
12
EXHIBIT A
NHOME - ONLINE INTERNET BANKING SERVICE
CURRENT FUNCTION
----------------
1. View Account Balances and Current Statement Transactions
- DDA/Savings X
- CD/XXX X
- Loans X
- Line of Credit X
2. Internal Transfer of Funds between DDA, Savings, Loan and Line of Credit
accounts, using ACH formatted file
- Immediate and Future Transfers X
- One Time and Recurring Transfers X
3. Pending Web Transfer and Xxxx Pay Transactions
- View, edit, delete future Web Transactions X
4. Xxxx Payment
- One Time, Future and Recurring Payments X
- Payment Reporting X
5. Custom Reports for Historical Transactions
- View customer account information for up to two years X
6. Password Manager
- Secure log in X
- Create and change customer password information X
7. Personal Information
- View customer information file X
8. PFM Downloads
- Microsoft Money(TM) X
- Quicken(TM) X
11. Online Help X
12. Online Banking Demo X
13. Bank Administration Site - nHome Functions
- Detailed Internet Branch Billing X
- Billing System for nHome On-Line Banking and Xxxx Payment X
customers, using ACH formatted file
- nReach - Data Mining and Marketing module
- Database Query Capability X
- Promotional E-mails to selected customers X
13
NBUSINESS ONLINE BANKING SERVICE
CURRENT FUTURE
FUNCTION FUNCTION
-------- --------
1. View Account Balances and Histories
- DDA/Savings X
- CD/XXX X
- Loans and Line of Credit X
2. ACH formatted Transfers - Book Transfers, Drafts, Disbursements, Direct
Deposits between DDA, Savings, Loan, LOC accounts
- Immediate and Future Transfers
- One Time, Recurring Transfers and Pending Transfers X
- View Historical Transfers X
X
3. Xxxx Payment
- Immediate and Future Xxxx Payments X
- One Time and Recurring Payments X
- Pending Xxxx Payments X
- Historical Xxxx Payments X
4. User Resources
- Online Payee Database X
- Business Calculators X
- Text Messaging X
- Categories & Journal Entries X
5. Balance Reporting
- View customer account information for up to two years X
6. Multi-User permissions
- SuperUser sets up and controls subordinate members' functional access X
- Secure log-in X
- Create and change customer password information X
- Control Account access and disbursement levels X
7. Business application integration
- Microsoft Money, Quicken X
- Peachtree, Quick Books, Comma Delimited X
8. Online Help X
9. Virtual Status Requests - EFTPS (Electronic Federal Tax Payments), Stop
Payments, Wire Transfers
- Immediate and Future transactions (where applicable) X
- Recurring Transactions X
- Pending Transactions X
- View Historical Transfers X
10. Additional Functions
- Cash Concentration X
- Controlled Disbursements X
- Cash Flow Manager/Daily Transaction Journal X
- ACH version of EFTPS X
14
CURRENT FUTURE
FUNCTION FUNCTION
-------- --------
11. Bank Administration Site - nBusiness Functions
- Set/Reset challenge code/Password for SuperUser X
- Flag accounts as Cash Management X
- Audit Management
- Receive/respond to time-sensitive Virtual Status
Requests (VSRs): Stop Pay, Wire Transfers, EFTPS X
- Detailed Internet Branch Billing X
- Billing System for nBusiness(SM) Customers using ACH formatted file
- nReach(SM) - Data Mining and Marketing module X
- Database Query Capability X
- Promotional e-mails to selected nBusiness(SM) customers X
- Internet Branch Reporting X
X
15
EXHIBIT B
Marketing Agreement dated March 1, 1999
BANCTEC CUSTOMER BASE
For purposes of the Marketing Agreement dated March 1, 1999 BancTec USA
Inc.'s Customer Base shall be and include any and all Customers of BancTec USA,
Inc.'s Community Banking Group whose work is not being processed by a BancTec
Data Center.
16
EXHIBIT C
17
EXHIBIT D
[See Attached]
18
EXHIBIT D - FEES
nHome and Banctec
nHome nBusiness nBusiness Commission
----- --------- --------- ----------
IMPLEMENTATION FEE - NEW CUSTOMERS
From 11/1/98 to 12/31/98 $[++++++] $ [++++++] $ [++++++] 40% footnote
From 1/1/99 to 4/30/99 $[++++++] $ [++++++] $ [++++++] 40% footnote
After 5/1/99 $[++++++] $ [++++++] $ [++++++] 40% footnote
MONTHLY MAINTENANCE FEE
From 11/1/98 to 1/31/99 $ [++++] $ [++++] $ [++++] 20%
From 2/1/99 to 4/30/99 $ [++++] $ [++++] $ [++++] 20%
After 5/1/99 $ [++++] $ [++++] $ [++++] 20%
PER CUSTOMER FEES
Customer Monthly Fee $ [++++] $ [++++] 20%
New Customer Setup - One Time $ [++++] $ [++++] 20%
TRANSACTION FEES
nBranch Product and Service Fees $ [++++] $ [++++] n/a
ACH Draft $ [++++] n/a
ACH Disbursement $ [++++] n/a
Direct Deposit $ [++++] n/a
Book Transfer $ [++++] n/a
Wire Transfer $ [++++] n/a
Stop Pay $ [++++] n/a
EFTPS - same day request $ [++++] n/a
EFTPS - pass through ACH $ [++++] n/a
Controlled Disbursement (per day) $ [++++] n/a
Cash Concentration $ [++++] n/a
XXXX PAYMENT
Monthly Fee/Account $ [++++] included n/a
Per Payment (Internet or Phone) $ [++++] $ [++++] n/a
Customer Setup $ [++++] included n/a
Canceled Check Copy $ [++++] $ [++++] n/a
NSF Fee $ [++++] $ [++++] n/a
Stop Pay Fee $ [++++] $ [++++] n/a
Additional User Kits $ [++++] $ [++++] n/a
Telephone Xxxx Payment Setup Fee (One Time) $ [++++] $ [++++] $ [++++] n/a
Telephone Xxxx Payment Monthly Maint. Fee $ [++++] $ [++++] $ [++++] n/a
Telephone Xxxx Payment Communications Quote Quote
CHECK IMAGING
DSI Setup Fee Quote Quote n/a
Greenway Setup Fee Quote Quote n/a
Per Check Image Fee Quote Quote n/a
Check Imaging Communications Charges Quote Quote n/a
OPTIONS
nReach Data Mining Reports (Per Report) $ [++++] $ [++++] n/a
nForm Multimedia Presentation (10 Frames) $ [++++] $ [++++] 40%
Site Map Construction $ [++++] $ [++++] $ [++++] 40%
Management Reporting (Per Month) $ [++++] $ [++++] 20%
Internet TV Site Quote n/a
Employee Training Program $ [++++] n/a
Jump Start Marketing And Promotion Program $ [++++] n/a
19
Footnote: Commissions on Implementation Fees are paid net of 3rd party expenses
to Xxxx Payment provider.
Prices Effective 11/1/98
20
EXHIBIT E
NFRONT INTERNET BANKING SERVICES AGREEMENT
THIS NFRONT INTERNET BANKING SERVICES AGREEMENT ("Agreement") is made
effective this ____ day of ____, 1998 ("Effective Date") by and between NFRONT,
INC. ("nFront"), a Georgia corporation having its primary offices at 000
Xxxxxxxxx Xxxxx X.X., Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000-0000, facsimile number
(000) 000-0000 and __________________ ("Bank"), a __________ corporation having
its primary offices at ____________________________, facsimile number
___________________.
BACKGROUND
WHEREAS, nFront is in the business of providing Internet-based banking
services to banks and other financial institutions;
WHEREAS, Bank desires to offer to its Customer Base (defined below) and
potential customers Internet-based banking capabilities;
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION ONE
DEFINITIONS
1. In addition to all other terms defined herein, the following terms
shall have the following meanings:
(a) "Agreement" means this agreement, together with all schedules and
Exhibits attached hereto or hereafter attached by mutual consent of the parties
(all of which are herein incorporated by reference).
(b) "Customer Base" means those customers of Bank as of the Effective
Date and those who become customers of Bank during the Term.
(c) "Documentation" means that portion of the System that provides
installation and operating instructions for use of the System by Bank.
(d) "End-User" means a Bank customer who uses the System.
(e) "Fees" means all fees payable by Bank to nFront under this
Agreement including, but not limited to, all the fees listed in Exhibit B,
Termination Fees and Xxxx Payment Fees.
(f) "File Transmission Computer" means Bank's computer equipment,
software, secure communications software and secure communications lines that
meet the specifications for use with the System.
(g) "nFront's Secure Server" means the server-grade computer owned and
maintained by nFront on which the System and Bank's Internet Branch resides.
(h) "Services" mean all services provided to Bank by nFront under this
Agreement.
(i) "Software" means that portion of the System that is comprised of
nFront's computer programs installed on nFront's Secure Server.
(j) "System" shall mean nFront's Software and nFront's proprietary
Internet banking system as more fully described in EXHIBIT C attached hereto,
together with all System Modifications made available to Bank under
21
this Agreement.
(k) "Term" means the Initial Term and all Renewal Terms.
(l) "Bank Data Center" shall mean the Bank's internal data processing
department, the Bank's core processor or the Bank's service bureau that provides
nFront with the electronic customer files that nFront will process.
SECTION TWO
SCOPE OF SERVICES
2.1 Authorized Services. During the Term, Bank is authorized to use the
capabilities of the nFront System as specified in EXHIBIT A ("Authorized
Services").
2.1.1 nFront's Obligations. During the Term and for the Authorized
Services, nFront shall provide Bank with the following:
(a) design and installation of nBranch - an Internet branch of
Bank on the World Wide Web of the Internet ("Internet Branch")
in accordance with the specifications set forth in EXHIBIT D;
(b) host and maintain the Internet Branch on nFront's Secure
Server;
(c) provide interactive banking service capabilities to Bank
through the use of the System;
(d) provide specifications for File Transmission Computer as set
forth in EXHIBIT E or as modified by nFront from time to time
("Technical Specifications");
(e) train Bank's personnel in the daily operation and update
procedures for the System as set forth in EXHIBIT F; and
(f) through a third party processing agent, provide the xxxx
payment services listed in EXHIBIT G and on the terms set
forth therein ("Xxxx Payment Services").
2.1.2 Software Access License. During the Term of this Agreement and
for the Authorized Services and subject to the limitations set forth herein,
nFront grants to Bank a limited, non-exclusive, and non-assignable license to
access the Software located on nFront's Secure Server for the purpose of
receiving the Services and using the System. nFront reserves all rights not
expressly granted herein. Without limiting the foregoing, Bank has no right to
possess the Software or any copies thereof in any form.
2.1.3 nFront Xxxx License. During the Term of this Agreement and
subject to the limitations set forth herein, nFront grants to Bank a limited,
non-exclusive, and non-assignable license to use the "NFRONT XXXX" solely for
the purpose of describing the Services and the System to the Customer Base and
for no other purpose.
2.1.4 Consulting Services. Bank may request that nFront perform
consulting services in addition to the Services set forth herein ("Consulting
Services"). Consulting Services, if any, are described on EXHIBIT H. When the
parties have agreed to the scope of Consulting Services as set forth in EXHIBIT
H, such Consulting Services shall be considered part of the "Services" provided
under this Agreement. All Consulting Services shall be performed pursuant to the
terms of this Agreement and EXHIBIT H.
2.2 Bank's Obligations. As promptly as practicable following the execution
of this Agreement, and at its sole cost and expense, Bank shall obtain or
otherwise make available to nFront the File Transmission Computer and other
recommended equipment meeting the Technical Specifications. During the Term,
Bank at its sole cost and expense, shall:
(a) employ technically suitable employees to support the System
and provide End User support;
(b) make available the appropriate Bank personnel to attend such
training programs and other refresher and upgrade training as
nFront may, at reasonable intervals, recommend or require (at
either the executive offices of Bank or nFront, as designated
by nFront);
(c) adhere, and cause its employees and agents to adhere, to the
security procedures established by nFront from time to time;
22
(d) perform periodic file updates as provided in EXHIBIT F
attached hereto;
(e) not offer, directly or indirectly, any Internet banking
service except pursuant to this Agreement; and
(f) set up and maintain test accounts throughout the Term of the
Agreement. Test accounts should consist of a DDA and savings
account tied to the same social security number or tax
identification number with balances of at least $10.
2.3 Relationship Between nFront and Bank. This Agreement does not in any
way create the relationship of principal and agent, or any similar relationship
between nFront and Bank, including, but not limited to that of joint ventures,
partners, employees or associates. Bank 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.
SECTION THREE
FEES AND PAYMENT TERMS
3.1 Fees and Payment Terms. Bank agrees to pay the Fees for the Services
set forth herein and in the EXHIBITS. Bank also agrees to pay or reimburse
nFront for any travel-related and other out-of-pocket expenses reasonably
incurred by nFront in the performance of Services. nFront will invoice Bank for
the Implementation Fees set forth in EXHIBIT B on the Effective Date and payment
is due within ten (10) days from receipt of the invoice. All monthly Fees,
Consulting Fees and all other Fees and expenses are due and payable within ten
(10) days of receipt of the invoice. nFront will assess a late payment Fee equal
to the lesser of one and one-half percent (1-1/2%) of the unpaid amount or the
highest interest rate allowed by applicable law for each succeeding thirty (30)
day period or portion thereof in which Fees or expenses remain unpaid.
3.2 System Changes and Fee Changes.
(a) nFront shall have the right to modify the System including, without
limitation, to: (i) make changes in method of access to or delivery of the
System including, without limitation, interface procedures ("File Interface
Changes"), or (ii) add improvements to the System which are provided to Bank at
no additional cost ("System Enhancements"), or (iii) provide additional
functionality that is offered to Bank for such Fees as nFront may deem
appropriate ("System Options") (collectively "System Modifications").
(b) nFront will provide Bank thirty (30) days prior written notice of
any File Interface Changes.
(c) nFront may, at its option, elect to pay such additional Fees for
System Options and thereafter have access to such System Options.
(d) nFront reserves the right to increase Fees and will provide thirty
(30) days written notice to Bank prior to any increase in the Fees. Within ten
(10) days of receipt of notice from nFront of a Fee change, Bank may, at its
option, terminate this Agreement as set forth in Section 6 below.
3.3 Taxes and Other Fees. Bank shall pay all sales, use, service,
occupation, personal property, value-added and excise taxes and any other fees,
assessments or taxes which may be assessed or levied by any taxing authority
against Bank's use of the System or receipt of the Services.
SECTION FOUR
WARRANTIES
4.1 System Warranty. nFront represents and warrants that the nFront
Software is Year 2000 Compliant (as defined below). "Year 2000 Compliant" means
that the nFront Software will: (i) report and display all dates, including dates
occurring before and after the year 2000, with a four-digit date; and (ii)
handle all leap years, including but not limited to the Year 2000 leap year,
correctly; provided, however, that nFront shall not be responsible or liable for
any date errors caused or contributed to by any third party software, any
operating system, or any hardware. EXCEPT AS SPECIFICALLY SET FORTH IN THIS
SECTION 4.1, THE SYSTEM AND ALL
23
SERVICES ARE PROVIDED BY NFRONT "AS-IS", "WHERE-IS". NFRONT SPECIFICALLY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR
PURPOSE AS TO THE SYSTEM OR SERVICES PROVIDED UNDER THIS AGREEMENT. WITHOUT
LIMITING THE FOREGOING, NFRONT DOES NOT WARRANT THAT THE USE OF THE SYSTEM, THE
NFRONT SOFTWARE OR NFRONT'S COMPUTER SERVERS WILL BE UNINTERRUPTED OR ERROR
FREE.
4.2 Security. nFront has made available to Bank a description of its
methods and procedures to safeguard the System, and, as part of nFront's
Services, will provide Bank with procedures which Bank is obligated to employ to
help secure the integrity of the System and Bank's data. nFront agrees to notify
Bank of any security breach of any End User's account on the System within a
commercially reasonable time. BANK UNDERSTANDS AND ACKNOWLEDGES THAT CERTAIN
RISKS ARE INHERENT IN THE TRANSMISSION OF INFORMATION OVER THE INTERNET. BANK
CHOOSES TO USE THE SECURITY MEASURES PROVIDED BY NFRONT EVEN THOUGH OTHER
SECURITY PROCEDURES ARE AVAILABLE. NFRONT MAKES NO REPRESENTATION, WARRANTY,
COVENANT OR AGREEMENT THAT ITS SECURITY MEASURES WILL BE EFFECTIVE AND NEITHER
NFRONT NOR ITS SUCCESSORS OR ASSIGNS SHALL HAVE ANY LIABILITY FOR THE BREACH OF
ITS SECURITY MEASURES, THIS SECTION OR THE INTEGRITY OF THE SYSTEM OR NFRONT'S
COMPUTER SERVERS.
SECTION FIVE
CONFIDENTIALITY AND NON-DISCLOSURE
5.1 In the performance of this Agreement, either party may disclose to the
other certain Proprietary Information. Proprietary Information includes, without
limitation, the Software, Documentation, business plans, financial information,
customer lists, procedures, formulas, discoveries, inventions, improvements,
innovations, concepts and ideas and information regarding Bank's customers and
their accounts. The receiving party agrees to hold the Proprietary Information
disclosed by the other party in strictest confidence and not to, directly or
indirectly, copy, use, reproduce, distribute, manufacture, duplicate, reveal,
report, publish, disclose, cause to be disclosed, or otherwise transfer the
Proprietary Information for any purpose whatsoever other than as expressly
provided by this Agreement.
5.2 For the purposes of this Agreement, (i) "Proprietary Information"
means Trade Secrets and Confidential Information; (ii) "Trade Secrets" means
trade secrets as defined under Georgia law; and (iii) "Confidential Information"
means information that is of value to its owner and is treated as confidential
other than Trade Secrets. Both parties acknowledge and agree that the
Proprietary Information shall remain the sole and exclusive property of the
disclosing party or a third party providing such information to the disclosing
party. The disclosure of the Proprietary Information does not confer upon the
receiving party any license, interest, or rights of any kind in or to the
Proprietary Information, except as expressly provided under this Agreement.
Subject to the terms set forth herein, the receiving party shall protect the
Proprietary Information of the disclosing party with the same degree of
protection and care the receiving party uses to protect its own Proprietary
Information, but in no event less than reasonable care. With regard to Trade
Secrets, the obligations in this Section shall continue for so long as such
information constitutes a Trade Secret. With regard to Confidential Information,
the obligations in this Section shall continue for the term of this Agreement
and for a period of five (5) years thereafter.
5.3 Nothing in this Section 5 shall prohibit or limit the receiving party's
use of information if (i) at the time of disclosure hereunder such information
is generally available to the public; (ii) after disclosure hereunder such
information becomes generally available to the public, except through breach of
this Agreement by the receiving party; (iii) the receiving party can demonstrate
such information was in its possession prior to the time of disclosure by the
disclosing party; (iv) the information becomes available to the receiving party
from a third party which is not legally prohibited from disclosing such
information; (v) the receiving party can demonstrate the information was
developed by or for it independently without the use of such information; or
(vi) if disclosure is required under applicable law or regulation.
24
5.4 Upon termination or expiration of this Agreement for any reason, the
party receiving Proprietary Information shall immediately return all such
Proprietary Information, including all copies thereof, to the disclosing party.
5.5 Bank shall not disclose the terms of this Agreement except as required
by applicable law or regulation.
SECTION SIX
TERM AND TERMINATION
6.1 Term. This Agreement shall commence as of the Effective Date and shall
remain in effect (unless sooner terminated pursuant to Section 6.2) for five (5)
years thereafter (the "Initial Term"). The Agreement shall thereafter
automatically renew without interruption for successive two-year periods (each a
"Renewal Term"), unless either party (at its sole option, for any reason or for
no reason) gives written notice of intent not to renew the Agreement at least
sixty (60) days before the beginning of any Renewal Term.
6.2 Right to Terminate. Notwithstanding any other provision hereof, this
Agreement may be terminated as follows:
(a) by mutual agreement of the parties;
(b) by either party at any time if the other party has materially
breached the Agreement and, if the breach is curable, the breaching party has
failed to cure such breach (i) within fifteen (15) days after written notice
thereof in the case of failure to pay amounts due and owing, or (ii) within
thirty (30) days in case of all other curable breaches;
(c) immediately by nFront in the event that the Bank becomes insolvent,
files or is forced to file any petition in bankruptcy, or makes an assignment
for the benefit of its creditors;
(d) by Bank during the Initial Term upon ninety (90) days written
notice to nFront; provided, however, that Bank shall pay to nFront the
applicable Termination Fees as set forth in Section 6.3 below ("Bank Termination
Notice"). Monthly Fees do not include any telecommunication and/or Internet Fees
that may be imposed on Bank by nFront, xxxx payment Fees or per transaction
Fees; or
(e) 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 upon written notice to other party.
Without limiting the foregoing, any violation of Section 5 hereof or any use of
the System, including without limitation the Software, in a manner inconsistent
with the terms of this Agreement, shall constitute a non-curable breach.
6.3 Termination Fees. Termination Fees are an amount equal to:
(i) the greater of: (A) the average monthly Fees paid by Bank during
the four full calendar months immediately preceding nFront's receipt of the Bank
Termination Notice, or (B) the average monthly Fees paid by Bank during the
twelve month period immediately preceding the actual date of termination
multiplied by
(ii) the number of whole and/or partial months remaining in the Initial
Term following the actual date of termination.
6.4 Effect of Termination.
(a) Any termination of this Agreement shall not release Bank from
paying any Fees or expenses owed to nFront. In the event of any termination of
this Agreement, all obligations owed by Bank to nFront shall become immediately
due and payable upon termination whether otherwise then due or not (without
presentation, demand, protest or notice of any kind, all of which are hereby
waived by Bank); and nFront may offset and deduct from any or all amounts owed
to Bank, if any, any or all amounts owed by Bank to nFront, rendering to Bank
the excess, if
25
any.
(b) Without limiting Bank's obligation to return all Proprietary
Information to nFront (as set forth in Section 5), upon termination of this
Agreement, Bank shall promptly and without charge return to nFront all copies of
all Documentation, maintenance and policy manuals and other publications of
nFront relating to the System (collectively "Copies"). Bank shall destroy all
Copies contained on any hard drive or other fixed medium of storage. Bank's
license to access the Software and license to use the nFront Marks as provided
in this Agreement shall immediately terminate. Within sixty (60) days from the
date of termination or expiration of this Agreement, an officer of Bank shall
certify in writing to nFront that Bank has complied with all requirements of
this Section.
(c) Upon termination of this Agreement, nFront shall (i) assign Bank's
domain name to another Internet service provider designated in writing by Bank;
and (ii) provide a notice at Bank's former Internet Branch location for a thirty
(30) day period of the new location of Bank's home page on the Internet.
SECTION SEVEN
INDEMNIFICATION; OTHER RELIEF
7.1 Indemnification by Bank. Bank 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 (a) misuse of the
System or any part thereof by Bank or any End-User in its Customer Base,
including, without limitation, any misrepresentations made by Bank with respect
to the System, or (b) nFront's compliance or alleged noncompliance with the
provisions of Regulation E, 12 CFR Section 205 et seq., or (c) an allegation
that any trademark, tradename, service xxxx, logo or other information (or any
portion thereof) provided by Bank to nFront in connection with the design of the
Bank's Internet Branch infringe upon or misappropriate any copyright, patent,
trademark or trade secret of any third party, or (d) a breach of any of the
provisions of this Agreement by Bank, provided that nFront shall promptly notify
Bank in writing and in reasonable detail of any Claim, and if such Claim is a
third party Claim, Bank shall have the right to assume the defense thereof using
counsel reasonably acceptable to nFront. nFront shall have the right to
participate, at its own expense, with respect to any such third party Claim. In
connection with such third party Claim, the parties shall cooperate with each
other and provide each other with access to relevant books and records in their
possession. No such third party Claim shall be settled or compromised by Bank
without the prior written consent of nFront if such settlement or compromise in
any manner indicates that nFront contributed to or was responsible for the cause
of any such Claim.
7.2 Indemnification by nFront. nFront shall indemnify, defend and hold
harmless Bank, its officers, directors, shareholders, employees, agents and
affiliates from and against any claim, suit or proceeding based upon an
allegation that the 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 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
have sole discretion to settle or not to settle the Claim and shall either:
(a) procure the right for Bank to continue to use the System under
this Agreement;
(b) replace or modify the System with a version of the System that
is not so infringing; or
(c) in nFront's sole discretion, remove the System, and terminate
the Agreement.
This Section sets forth the sole and exclusive remedy of Bank and the complete
liability of nFront with respect to any claim hereunder. nFront shall have no
liability for any claim based upon the unauthorized modification, combination,
operation or use of any portion of the System with equipment, data, software, or
programming not supplied by nFront.
7.3 Arbitration. Except as provided below, all disputes or claims relating
in any manner to this Agreement (including, without limitation, any alleged
breach thereof or the termination or non-renewal thereof) shall be settled by
binding arbitration in accordance with the Commercial Arbitration Rules of the
American
26
Arbitration Association. The parties 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 arbitrators 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 Bank, one
selected by nFront, and one selected by mutual agreement of the arbitrators
selected by Bank and nFront. If a party fails to select an arbitrator as
required herein within thirty (30) days from the written request by the other
party ("Selecting Party"), the Selecting Party shall then be entitled to select
the second arbitrator, with the two selected arbitrators selecting the final
arbitrator by mutual agreement.
7.4 Injunctive Relief. Notwithstanding the provisions of Section 7.3, the
parties may apply to a court of competent jurisdiction for any appropriate
equitable or injunctive relief, including, without limitation, preliminary and
permanent injunctions and temporary restraining orders. The parties also
acknowledge that (i) any use or threatened use of the Software, System, nFront
Marks or Bank Marks in a manner inconsistent with this Agreement, or (ii) any
other misuse of the Proprietary Information of either party will cause immediate
irreparable harm to the non-breaching party for which there is no adequate
remedy at law. Accordingly, the parties agree that the non-breaching party shall
be entitled to immediate and permanent injunctive relief from a court of
competent jurisdiction in the event of any such breach or threatened breach. The
parties hereby waive the defense that the non-breaching party has or will have
an adequate remedy at law for any such breach or threatened breach. The parties
agree and stipulate that the non-breaching party shall be entitled to such
injunctive relief without posting a bond or other security; provided however
that if the posting of a bond is a prerequisite to obtaining injunctive relief,
then a bond in the amount of $1000 shall be sufficient. Nothing contained herein
shall limit either party's right to any remedies at law, including the recovery
of damages from the other party for breach of this Agreement. The prevailing
party in any action pursuant to this Section 7.4 shall be entitled to collect
from the losing party its attorneys' fees and full costs of such action.
7.5 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 IN ANY MANNER TO THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE SYSTEM OR
NON-DELIVERY OF SYSTEM EVEN IF NFRONT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. SUBJECT TO THE MAXIMUM LIABILITY SET FORTH IN THIS SECTION. IN NO
EVENT SHALL NFRONT'S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT
(INCLUDING ANY CLAIM ARISING UNDER SECTION 7.2 HEREOF) REGARDLESS OF THE TYPE OR
NATURE OF THE CLAIM(S), EXCEED THE AMOUNT PAID TO NFRONT BY BANK UNDER THIS
AGREEMENT WITHIN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE
OCCURRENCE OF SUCH CLAIM. IN NO EVENT SHALL NFRONT'S MAXIMUM, CUMULATIVE
LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT, REGARDLESS OF THE TYPE OR NATURE
OF THE CLAIM(S), EXCEED THE LESSER OF $50,000 OR ALL AMOUNTS PAID BY BANK TO
NFRONT HEREUNDER. NO CLAIM MAY BE BROUGHT BY BANK UNDER THIS AGREEMENT MORE THAN
TWO (2) YEARS AFTER SUCH CLAIM FIRST ACCRUES.
7.5.1 Use of the System by Third Parties. Without limiting the terms of
Section 7.5, the parties acknowledge that Bank is solely responsible for the use
of the System (and any resulting damages) by End Users and other third parties
including, without limitation, any improper or unauthorized transfers of funds
from accounts via the System. nFront shall have no liability for any such
actions or resulting damages.
SECTION EIGHT
MISCELLANEOUS PROVISIONS
8.1 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
27
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.
8.2 Entire Agreement. This Agreement, the Exhibits and schedules hereto
constitute the entire understanding of the parties with respect to the subject
matter of this Agreement and supersede all prior understandings, whether written
or oral, between the parties with respect thereto.
8.3 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 End User or any client, customer,
affiliate, insurer, lender, shareholder, partner, officer, director, employee or
agent of any party hereto, or in any other person.
8.4 Third Party Processor. If Bank utilizes a third party to process Bank's
file information, the use of such third party shall not diminish or relieve Bank
of its obligations under this Agreement.
8.5 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, inure to
the benefit of, and be enforceable by, the parties and their respective
successors (including without limitation successors merger) and permitted
assigns. nFront may freely assign this Agreement in conjunction with (i) a sale
of all or substantially all of its assets, or (ii) a merger or similar
transaction. Bank 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.
Notwithstanding the foregoing, Bank may assign this Agreement in conjunction
with a sale of all or substantially all of its assets or in conjunction with a
merger if the successor entity agrees in writing (i) to be bound by the terms of
this Agreement (including without limitation the exclusivity requirements of
Section 2.2) and (ii) that the Bank (or the successor entity) will continue to
process Bank's customers on the System for the remainder of the Term. nFront
shall not unreasonably withhold or delay its consent to such an assignment. Any
attempted assignment in violation of this Section shall be void and of no
effect.
8.6 Force Majeure. nFront shall not be liable for loss or damage 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
Bank, 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.
8.7 Governing Law; Venue. This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of Georgia and the U.S.
without giving effect to the conflict-of-laws principles thereof. The parties
hereby agree that the sole venue for all matters related in any manner to this
Agreement shall be solely in arbitration or a court of competent jurisdiction,
as the case may be, located in Xxxxxx County, Georgia. The parties hereby
consent to the personal jurisdiction of those courts and irrevocably waive any
and all objections to jurisdiction and venue which are inconsistent herewith.
8.8 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.
8.9 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.
8.10 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 or
28
facsimile numbers indicated above.
8.11 Survival. The provisions of Sections 3, 4, 5, 6, 7, and 8 shall
survive any termination or expiration of this Agreement for any reason.
8.12 Headings; Interpretation. Headings of particular Sections are inserted
only for convenience and are not to be considered a part of this Agreement or be
used to define, limit or construe the scope of any term or provision of this
Agreement. Should any provision of this Agreement require judicial
interpretation, the parties agree that the court interpreting or construing the
same shall not apply a presumption that the terms of this Agreement shall be
more strictly construed against one party than against another.
8.13 This Agreement Controls. Notwithstanding the content of any purchase
order, sale order, sale confirmation or any other document relating to the
subject matter of this Agreement, this Agreement shall take precedence over any
such document, and any conflicting, inconsistent, or additional terms contained
therein shall be null and void.
8.14 Exhibits. Exhibits attached hereto are incorporated into this Agreement
for all purposes consistent herewith.
EXHIBIT A Authorized Services
EXHIBIT B Fees
EXHIBIT C The System
EXHIBIT D nBranch - Internet Branch Specifications
EXHIBIT E Technical Specifications
EXHIBIT F Installation, Training and Daily Processing Requirements
EXHIBIT G Xxxx Payment Services
EXHIBIT H Consulting Services
IN WITNESS WHEREOF, the parties have executed this Agreement as of Effective
Date.
NFRONT, INC. BANK
By: By:
----------------------------------- ---------------------------------
Name: Name:
--------------------------------- -------------------------------
Print Name Print Name
Title: Title:
-------------------------------- ------------------------------
Date: Date:
--------------------------------- -------------------------------
29
EXHIBIT A - AUTHORIZED SERVICES
Bank is authorized to use the services indicated below for the Fees listed in
EXHIBIT B.
[ ] The nBranch Service (described in EXHIBIT C)
------------------ --------------- ------------ --------------
nFront Date Bank Date
[ ] The nHome Service (described in EXHIBIT C)
------------------ --------------- ------------ --------------
nFront Date Bank Date
[ ] The nBusiness Service (described in EXHIBIT C)
------------------ --------------- ------------ --------------
nFront Date Bank Date
Options:
[ ] nForm (10 frames)
[ ] nBranch Site Map Construction
[ ] Management Statistics Reporting
[ ] Xxxx Payment
[ ] Telephone Xxxx Payment
[ ] Check Imaging - DSI
[ ] Check Imaging - Greenway
[ ] Employee Training Program
[ ] Jump Start Marketing and Promotion Program
[ ] Internet TV Site
[ ] Other Special Services (Describe)
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
------------------ --------------- ------------ --------------
nFront Date Bank Date
30
EXHIBIT B - FEES
31
EXHIBIT C - THE SYSTEM
NBRANCH - INTERNET BRANCH SERVICE
CURRENT
FUNCTION
--------
1. Bank Branding of Internet Site X
2. 7 Secure Product Services
- Checking X
- Savings X
- Certificate of Deposit X
- XXX X
- Consumer/Commercial Loans X
- Mortgage Loans X
- Line of Credit X
3. Additional Secure Product Service
- Guestbook X
4. Financial Calculators
- Loan X
- Maximum Loan X
- College Planning X
- Mortgage X
- Retirement X
5. Administration Site
- Guestbook Secure Database Management X
- Products & Services Applications with Secure Database Management X
- Products & Services Application Email Notifications X
- Products & Services - Update Rates and Terms X
- Password Maintenance Interface X
- Audit Management X
- Bank can view pending or processed applications and who
approved/denied application X
- Bank can view changes to products and services rates and
terms which are automatically logged into the secure database X
6. Email - The bank will be assigned one @xxxxxxx.xxx email address. This X
"general" mailbox will forward all incoming mail to any/all bank specified
email addresses
32
EXHIBIT C - THE SYSTEM
NHOME - ONLINE INTERNET BANKING SERVICE
CURRENT
FUNCTION
--------
9. View Account Balances and Current Statement Transactions
- DDA/Savings X
- CD/XXX X
- Loans X
- Line of Credit X
10. Internal Transfer of Funds between DDA, Savings, Loan and Line of Credit
accounts, using ACH formatted file
- Immediate and Future Transfers X
- One Time and Recurring Transfers X
11. Pending Web Transfer and Xxxx Pay Transactions
- View, edit, delete future Web Transactions X
12. Xxxx Payment
- One Time, Future and Recurring Payments X
- Payment Reporting X
13. Custom Reports for Historical Transactions
- View customer account information for up to two years X
14. Password Manager
- Secure log-in X
- Create and change customer password information X
15. Personal Information
- View customer information file X
16. PFM Downloads
- Microsoft Money(TM) X
- Quicken(TM) X
14. Online Help X
15. Online Banking Demo X
16. Bank Administration Site - nHome Functions
- Detailed Internet Branch Billing X
- Billing System for nHome On Line Banking and Xxxx X
Payment customers, using ACH formatted file
- nReach - Data Mining and Marketing module
- Database Query Capability X
- Promotional E-mails to selected customers X
33
EXHIBIT C - THE SYSTEM
NBUSINESS ONLINE BANKING SERVICE
CURRENT FUTURE
FUNCTION FUNCTION
-------- --------
11. View Account Balances and Histories
- DDA/Savings X
- CD/XXX X
- Loans and Line of Credit X
12. ACH formatted Transfers - Book Transfers, Drafts, Disbursements, Direct
Deposits between DDA, Savings, Loan, LOC accounts X
- Immediate and Future Transfers X
- One Time, Recurring Transfers and Pending Transfers X
- View Historical Transfers X
13. Xxxx Payment
- Immediate and Future Xxxx Payments X
- One Time and Recurring Payments X
- Pending Xxxx Payments X
- Historical Xxxx Payments X
14. User resources
- Online Payee Database X
- Business Calculations X
- Text Messaging X
- Categories & Journal Entries X
15. Balance Reporting
- View customer account information for up to two years X
16. Multi-User permissions
- SuperUser sets up and controls subordinate members' functional X
access
- Secure log-in X
- Create and change customer password information X
- Control account access and disbursement levels X
17. Business application integration
- Microsoft Money, Quicken X
- Peachtree, Quick Books, Comma Delimited X
18. Online Help X
19. Virtual Status Requests - EFTPS (Electronic Federal Tax Payments), Stop
Payments, Wire Transfers
- Immediate and Future transactions (where applicable) X
- Recurring transactions X
- Pending Transactions X
- View Historical Transactions X
20. Additional Functions
- Cash Concentration X
- Controlled Disbursements X
- Cash Flow Manager / Daily Transaction Journal X
- ACH Version of EFTPS X
34
EXHIBIT C - THE SYSTEM
NBUSINESS ONLINE BANKING SERVICE (CONT'D)
CURRENT FUTURE
FUNCTION FUNCTION
-------- --------
11. Bank Administration Site - nBusiness Functions
- Set/Reset challenge code/Password for SuperUser X
- Flag accounts as Cash Management X
- Audit Management
- Receive/respond to time-sensitive Virtual Status X
Requests (VSRs): Stop Pay, Wire Transfer, EFTPS
- Detailed Internet Branch Billing X
- Billing System for nBusinessSM Customers using ACH
formatted file
- nReach(SM) - Data Mining and Marketing module X
- Database Query Capability X
- Promotional e-mails to selected nBusinessSM X
customers X
- Internet Branch Reporting
X
35
EXHIBIT D -INTERNET BRANCH SPECIFICATIONS
1. Home Page
- Bank branding (logo)
- Custom navigational controls
- 3 scanned images or custom graphics
2. Product and Services (28 sub-page maximum)
- Bank branding (logo)
- Custom navigational controls
3. Bank Information and Contact Us (25 sub-page maximum)
- Bank branding (logo)
- Custom navigational controls
- Up to 10 scanned images or 5 graphics
4. Feature Product, Guestbook, Frequently Asked Questions (FAQ) and Search
Engine
- Bank branding (logo)
- Custom navigational controls
Note: All Web site content must be submitted to nFront in an IBM Microsoft Word
(.doc) or PC Text (.txt) Format. Also, a page can contain up to a maximum of 500
words of text.
36
EXHIBIT E - TECHNICAL SPECIFICATIONS
FILE TRANSMISSION COMPUTER
1. Pentium 75 Processor or greater PC
2. 16 MB RAM or greater
3. 28.8 BPS Asynch modem or greater
4. CD ROM drive
5. Monitor
6. Keyboard
7. Mouse
8. Dedicated analog telephone line for dialup connectivity
9. PC must be housed in a secure area of the bank and be available to
receive daily ACH files and transmit nightly balance files.
REQUIRED SOFTWARE
1. Microsoft Windows 95 Version 4.00.950 B or greater on CD ROM
2. Microsoft Plus!
37
EXHIBIT F - INSTALLATION, TRAINING AND
DAILY PROCESSING REQUIREMENTS
IMPLEMENTATION AND TRAINING SCHEDULE
1. Upon execution of this Agreement nFront will forward to Bank a copy of
nFront's implementation manual.
2. At a mutually agreeable time following contract execution nFront will
conduct a kick off meeting with bank personnel. The kick off meeting
will be in the form of a conference call and will last approximately 2
hours. Bank must have Internet access at their location during the
session. During this meeting the following topics will be discussed:
- nBranch
- Description of Web site content needed to begin work
(See Implementation Manual)
- Proposed graphic design for the Web site
- Setup Parameters for nHome
- Setup Parameters for nBusiness
- Proposed timelines for project completion with agreed-upon due
dates ("Project Timeline")
3. By the due dates in the Project Timeline, Bank will provide nFront the
nBranch Web site content, setup parameters for nHome, and setup
parameters for nBusiness which are detailed in the Implementation
Manual. Upon receipt of the Web site content and setup parameters,
nFront will begin site construction based on the Project Timeline. If
the bank fails to deliver the necessary Web site content and setup
parameters by the due dates in the Project Timeline, nFront reserves
the right to adjust the Project timeline based on the then-current
nFront implementation schedule.
4. Bank will need to make available to nFront a primary and secondary
"Internet Branch Manager." These individuals will be responsible for
receiving and processing Web site product services, guest book entries
and emails, updating product rates and terms and general administrative
functions. nFront will conduct a training session prior to the bank
completing the testing phase. This session will be in the form of a
conference call and will last 2-3 hours. The bank must have Internet
access at their location during the session. The session will include
instruction on Web site administrative functions.
5. Upon completion of the nBranch Web site, Bank will be asked to sign
nFront's Web Site Acceptance Agreement which stipulates the completion
of the Web Site.
6. Bank will need to make available to nFront a primary and secondary test
subject. These individuals will be responsible for testing the nHome
and nBusiness products. nFront will conduct a training session prior to
the testing phase. The session will be in the form of a conference call
and will last 2-3 hours. The bank must have Internet access at their
location during the session. The session will include instruction on
application functions.
7. Upon completion of the testing phase, Bank will be asked to sign
nFront's nHome and/or nBusiness Project Completion Acceptance Agreement
stipulating the completion of the implementation.
38
EXHIBIT F - INSTALLATION, TRAINING AND
DAILY PROCESSING REQUIREMENTS
NBRANCH WEB SITE CHANGES
nFront will provide 3 hours of nBranch Web site changes monthly at no cost. All
changes exceeding 3 hours monthly will be billed at nFront's standard hourly
rate listed below. All requested changes must be submitted to nFront in writing.
nFront will provide a good faith, non-binding estimate of hours needed to
complete, cost if applicable and a delivery date.
Hourly Blocks Cost per Hour
------------- -------------
0 - 100 $ [++++]
101 - 200 $ [++++]
200 + $ [++++]
DAILY PROCESSING
1. Bank's Data Center is responsible for verifying that account balance
files for nHome and nBusiness have been sent to nFront from the Bank
Data Center on a daily basis.
2. Bank's Data Center on a daily basis is responsible for retrieving and
processing the ACH formatted file created by nFront for the Bank.
3. Bank is responsible for obtaining all proper authorizations for
electronic funds transfers, including, but not limited to ACH drafts,
ACH disbursements, direct deposits, stop pays, wire transfers, and
EFTPS.
4. Bank is responsible for obtaining proper authorization from Bank's
customer in order to process ACH drafts when billing the Bank's
customer using nFront's end-user billing feature.
5. For nBusiness:
a. Bank or Bank's Data Center must be the ACH originator; and
b. Bank must maintain an Electronic Services Agreement with their
customers regarding the acknowledgment and use of the Internet
as a delivery channel for banking transactions. The agreement
shall also document bank's procedure and requirements for each
type of transaction; and
c. Bank is responsible for verifying that the morning transaction
"in-clearing" file(s) have been sent to nFront from the Bank
or Bank's data center on a daily basis.
39
EXHIBIT G - XXXX PAYMENT SERVICES
1. Xxxx Payment Services. Subject to the terms of the Agreement and this
Exhibit, nFront will provide the Xxxx Payment Services listed herein
through a third party processing agent ("Processing Agent"). nFront
makes no representation, warranty or guaranty with respect to the
performance of Services provided by the Processing Agent.
2. Terms of Xxxx Payment Services. nFront will provide Xxxx Payment
Services to End Users upon the following conditions:
(a) Eligibility. Only the following End Users shall be eligible to
receive Xxxx Payment Services: (i) consumer demand deposit
account holders ("Consumer Account Holders") or (ii) business
demand deposit account holders ("Business Account Holders").
(b) Transaction Cap. nFront shall not be obligated to forward for
processing any transaction in excess of $9,999.00 (the
"Transaction Cap"). nFront reserves the right to increase or
decrease the Transaction Cap in its sole discretion and shall
give Bank reasonable notice of any such increase or decrease.
(c) Risk Reduction Measures. nFront or the Processing Agent may,
from time to time, institute certain operating procedures to
reduce credit risk and exposure ("Procedures"). Such measures
may include, but are not limited to, pre-authorized drafts for
Business Account Holders, verification of funds through ATM
networks, separating debits from credit so that payments are
not sent until good funds confirmations are received, and the
like. Bank and all eligible End Users are subject to and shall
conform to all such Procedures. nFront shall use commercially
reasonable efforts to inform Customer in advance of the
implementation of such risk-reduction procedures.
3. Fees and Expenses. Bank shall pay the xxxx payment fees listed on
EXHIBIT B ("Xxxx Payment Fees"). nFront shall xxxx Bank all Xxxx
Payment Fees incurred in the previous month. Payment by Bank is due
within ten (10) days of receipt of the invoice.
4. Limitation of Damages. In addition to all other terms in the Agreement
and is Exhibit, nFront's total exposure during the term of the
Agreement for Business Account Holders is limited to a maximum loss of
(i) $1,000.00 per business account that has been open with the Bank for
less than one year and (ii) $2,500.00 per business account that has
been open with the Bank for one year or longer. In no event shall
nFront's total liability to Bank ever exceed the amount set forth in
the Section of the Agreement entitled "Limitation of Liability."
5. Xxxx Payment Services - Back-End Processing.
(a) Accurate payment data, including End User account number and
payment information, provided by End Users in files supplied
to the Processing Agent will be taken through a batch
interface from nFront each business day during the late
evening hours (Day 0). The payment transactions will be
processed the following day (Day 1) after the transaction was
initiated by the End User. On Day 1, Processing Agent will
initiate ACH debits and credits. Credits may be sent via
check, electronic transmissions, or ACH to vendor payees. All
debits and credits are sent on Day 1.
(b) Processing Agent will handle Funds Transfer in accordance with
End User payment instructions activated in accordance with
paragraph 5(a). Processing Agent will supply and transmit to
the sponsoring Bank payment information for debit against End
User account. The initiation of this transfer occurs on Day 1.
The End User account is debited on Day 2.
(c) Processing Agent will handle End User inquiries regarding
payments made on behalf of End User to Vendor payees. Customer
Service is available from 7 a.m. to 7 p.m. Monday through
Friday and Saturday from 8 a.m. to 5 p.m. Central Standard
Time or as otherwise designated by Processing Agent.
40
(d) From time to time Processing Agent may make changes to the
system. nFront will notify Bank or Bank's Data Center in
advance of any data changes.
41
EXHIBIT H - CONSULTING SERVICES
1. CONSULTING AND FEES. Pursuant to the terms and conditions of the
Agreement and this Exhibit, (i) nFront will provide to Bank the
consulting services described in the attached Schedule - Consulting
Services Statement of Work ("Consulting Services"), and (ii) Bank will
pay to nFront the Fees for the Consulting Services as set forth in the
attached Schedule.
2. PROMOTIONAL MATERIALS. Except as otherwise provided herein, nFront
reserves all rights, including but not limited to all copyrights, in
and to all promotional materials and other works of authorship provided
hereunder ("Materials"). Except as otherwise provided herein, Bank may
not reproduce or copy the Materials.
3. LIMITED WARRANTY. For a period of sixty (60) days from the date of
delivery to Bank, nFront warrants that: (i) the Consulting Services are
performed in accordance with normal industry standards, and (ii) the
media in which the Materials are embodied is free from material
defects. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 4, NFRONT
DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR
REPRESENTATIONS TO BANK WITH RESPECT TO THE CONSULTING SERVICES OR
MATERIALS OR OTHERWISE REGARDING THIS ADDENDUM, WHETHER ORAL, WRITTEN,
EXPRESS, IMPLIED OR STATUTORY. UNLESS SET FORTH IN THIS ADDENDUM, NO
REPRESENTATION OR OTHER AFFIRMATION OF FACTS SHALL BE BINDING ON NFRONT
(INCLUDING BUT NOT LIMITED TO ANY STATEMENT REGARDING PERFORMANCE OF
THE CONSULTING SERVICES OR STATEMENT REGARDING THE QUALITY OF THE
MATERIALS). WITHOUT LIMITING THE FOREGOING, NFRONT EXPRESSLY DISCLAIMS
ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ACCURACY, OR
FITNESS FOR A PARTICULAR PURPOSE REGARDING THE CONSULTING SERVICES OR
MATERIALS OR OTHERWISE.
42
SCHEDULE A - CONSULTING SERVICES STATEMENT OF WORK
NONE
