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CONFIDENTIAL TREATMENT* EXHIBIT 10.7
*CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO THE RULES
AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION. BRACKETS AND "+"
HAVE BEEN USED TO IDENTIFY INFORMATION WHICH IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST.
MARKETING AGREEMENT
THIS MARKETING AGREEMENT (the "Agreement") is made this 10th day of
April 1998 by and between NFRONT, INC. ("nFront"), a Georgia corporation having
its principal offices at 0000 Xxxxxxxx Xxxx Xxxx, Xxxxx 000X, Xxxxxx, Xxxxxxx
00000 and BISYS, INC. ("Reseller"), a Delaware corporation having its principal
offices 00 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000-0000.
W I T N E S S E T H:
WHEREAS, nFront is in the business of providing home banking and xxxx
payment services through the Internet to customers of banks and other financial
institutions;
WHEREAS, Reseller is in the business of providing transaction
processing and other administrative and computer processing services to banks
and financial institutions;
WHEREAS, Reseller desires to offer to its Customer Base (as hereinafter
defined) and potential customers Internet home banking capabilities;
WHEREAS, nFront desires Reseller to offer nFront's proprietary Internet
home banking system as more fully described in Exhibit A attached hereto (the
"nHome System") to Reseller's Customer Base and to potential Bank customers of
Reseller
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
As used in this Agreement, each of the following terms has the meaning
set forth thereafter, such meaning to be equally applicable both to the singular
and plural forms of the terms herein defined:
(a) "Agreement" means this agreement, together with all exhibits and
schedules hereto now or hereafter signed by Reseller and nFront (all of which
are herein incorporated by reference), as the same may be modified, amended or
supplemented from time to time.
(b) "Bank" means banks and other financial institutions that offer
banking services to the general public.
(c) "Customer Base" means those banks who are existing customers of
Reseller (see Exhibit B) and any other Banks who become customers of Reseller
during the Term.
(d) "Documentation" means that portion of the nHome System that
provides installation and operating instructions for use of the nHome System.
(e) "End-User" means the ultimate user of the nHome System.
(f) "Generic Hardware" means computer equipment and configurations
thereof that meets the specifications provided by nFront for use with the nHome
System.
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(g) "nHome System" shall have the meaning set forth in the fourth
recital hereof and shall also include all future improvements, enhancements and
modifications thereof, and all releases and upgrades related thereto.
(h) The terms "sale" and "resale" and any grammatical variant thereof
shall include, without limitation, sales, contracts for sale, conditional sales,
installment sales, rentals, leases or licenses of software to Banks, and any
other arrangement whereby the nHome System is placed at the disposal of the
Banks.
(i) "Software" means that portion of the nHome System that is comprised
of computer applications programs.
(j) "Term" shall have the meaning set forth in Section 8.1 hereof.
ARTICLE II
Reseller Appointment
2.1 Appointment. During the Term, nFront hereby grants to Reseller the
non-exclusive right to market the nHome System to its Customer Base and
potential Bank customers of Reseller, and Reseller hereby accepts such
appointment. Reseller may market the nHome System anywhere in the continental
United States but shall have no right to market the nHome system outside the
United States. Reseller understands, acknowledges and agrees that this
appointment is non-exclusive as to both the nHome System and geographic area and
that nFront may appoint more than one reseller in any given geographic area to
sell and market the same nHome System as any other reseller. nFront expressly
reserves the right to sell and deliver the nHome System to any other entity,
including Banks. Notwithstanding the immediately preceding sentence, for so long
as Reseller is actively marketing the nHome System as its preferred Internet
banking solution to its Customer Base, nFront agrees that it will not contact
those Banks that are included in the Customer Base as of the date hereof. nFront
reserves the right to review the status of Reseller's marketing efforts to the
Customer Base on a quarterly basis, and if it determines, in the exercise of its
reasonable discretion, that Reseller is not making reasonable efforts to market
the nHome System to the Customer Base, then on thirty (30) days prior written
notice to the Reseller the restrictions set forth in the immediately preceding
sentence shall no longer apply. Unless otherwise set forth on Exhibit C attached
hereto or hereafter as consented to in writing by nFront, Reseller shall sell
the nHome System only to Banks, and shall not sell the nHome System to other
parties providing core processing services to Banks, or to Bank service bureaus,
software providers, other resellers of automated bank services or to any other
buyer who intends, directly or indirectly, to resell the nHome System. Reseller
has no authority to appoint any associate resellers or subdealers of the nHome
System without nFront's consent. If nFront significantly participates, either by
request or prior approval of Reseller or without the request or prior approval
of Reseller in the sales process resulting in the signing of a current Reseller
customer to the nHome agreement. nFront agrees to recognize the Customer as a
Reseller sale. Reseller agrees to rebate the then current commission payment
representing the nFront sales commission plan to nFront.
2.2 Relationship between nFront and Reseller. Reseller shall conduct its
business in the purchase and resale of nHome System as a principal for its own
account and at its own expense and risk. This Agreement does not in any way
create the relationship of principal and agent, or any similar relationship
between nFront and Reseller, including, but not limited to that of joint
ventures, partners or associates. Neither party is granted a right or authority
hereunder to assume or create any obligation or responsibility for or on behalf
of the other party or otherwise to bind or to use the other party's name other
than as may be expressly authorized by the other party.
ARTICLE III
Sales, Service, and Training and Related Obligations
3.1 Selling and Promotion. Reseller shall use commercially reasonable efforts to
sell and promote the sale of the nHome System, which commercially reasonable
efforts shall include, but not be limited to, promotion of the nHome
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System to the Customer Base and prompt performance of all of its obligations
under this Agreement.
3.2 Staffing and Training. Reseller shall appoint its technically suitable
employees to sell the nHome System, and provide Bank and End-User support.
Reseller shall, at its sole cost and expense, send the appropriate sales,
technical and training personnel to such training programs and other refresher
and upgrade training as nFront may, at reasonable intervals, require. nFront
shall provide periodic routine consultation and advice to Reseller in connection
with Reseller's sales and service hereunder and shall provide (a) technical,
specification and sales advice, (b) assistance and advice concerning promotional
and training programs, and (c) suggestions for new applications for the nHome
System at Reseller's cost. nFront shall furnish Reseller with a supply of price
lists, sales literature, catalogues, specifications for Generic Hardware,
Documentation and advisory assistance with respect to the nHome System at
Reseller's cost. All proprietary demonstration equipment, manuals, instruction
books, contract forms, sales and promotional materials, Documentation and
similar material furnished to Reseller by nFront, whether furnished free of
charge or not, shall remain the property of nFront and upon reasonable request
shall be returned to nFront by Reseller upon Reseller's receipt of replacement
materials or termination of this Agreement.
3.3 Installation and Training. Reseller acknowledges, understands and agrees
that the nHome System that it shall provide to Banks shall remain resident on
nFront's servers, and that such Banks shall, through Reseller, gain access to
the nHome System upon execution of a contract with nFront. nFront shall be
responsible for installation, training and systems maintenance of the nHome
System resident on its servers. Reseller hereby agrees that it shall provide
Bank and End-User support services to Banks and shall provide such services in
respect of the nHome System as used by any such Banks who receive access to the
nHome System from Reseller.
3.4 Reseller Promotional Activity. nFront shall not share in the expense of any
advertising or promotional activities by Reseller or other sales promotion
projects except by express agreement in writing. All materials prepared by
Reseller that promote the nHome System, including, but not limited to, any
materials that include any trademark or trade name (or any xxxx or name closely
resembling the same) now or hereafter owned or licensed by nFront or any of its
affiliates shall be approved in writing by nFront prior to use.
3.5 Reseller Recordkeeping. Reseller shall keep records of its business relating
to the nHome System as may be reasonably required by nFront. nFront or its
authorized representative may, from time to time during regular business hours,
examine such records and Resellers accounts relating to the sale and servicing
of the nHome System, at nFront's cost. Reseller agrees to make available, at
their cost, any and all resources, including people, reasonably necessary to
successfully provide the necessary information to complete the examination.
ARTICLE IV
Conditions of Sale
4.1 Pricing and Payment. The price for access to the nHome System to the Banks
and the processing fees for services thereunder shall be as set forth in Exhibit
D attached hereto. As compensation for its sales, marketing, and support
services provided hereunder, Reseller shall be entitled to retain the percentage
of such fees as set forth in Exhibit D attached hereto. For any such sales as to
which nFront does not require prepayment, payment of nFront's portion of the
initial access fee shall be due net fifteen (15) days from the date of
Reseller's invoice to the Bank, subject to credit approval, payable to nFront at
its principal place of business. Payment of nFront's portion of any processing
fees shall be paid within thirty (30) days following the end of each calendar
month for the first six (6) months after the live date of the first customer,
and thereafter will be due forty-five (45) days following the end of each
calendar month. A late payment charge equal to one and one-half percent (1 1/2%)
of the unpaid amount for each succeeding thirty (30) day period or forty-five
(45) day period or portion thereof in which fees remain unpaid.
4.2 Force Majeure. nFront shall not be liable for loss or damage due to
interruption of service or access to the nHome System resulting from any cause
beyond its reasonable control, including, but not limited to, the following
causes (if beyond nFront's reasonable control), 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
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thereof, acts of God, acts or omissions of Reseller, acts of civil or military
authority, fires, strikes, facilities shutdowns or alterations, embargoes, war,
riot, delays in transportation, or inability to obtain necessary labor,
facilities or materials from usual sources. IN NO EVENT SHALL NFRONT BE LIABLE
FOR CONSEQUENTIAL OR SPECIAL DAMAGES DUE TO ANY SUCH CAUSE.
4.3 Price and System Changes. nFront shall have the right to make material
change to the nHome System without notice with ninety (90) days' written notice
to Reseller, and shall have the right within ninety (90) days' written notice to
Reseller to discontinue the sale of any version of the nHome System, to make
material changes in method of access or delivery, including interface
procedures, and to add improvements, all without incurring any liability
whatever, including any obligation to install or modify the same on the nHome
System previously accessed by the Customer Base. nFront may change its prices to
Reseller for the nHome System upon sixty (60) days' written notice to Reseller.
Any contract between Reseller and a Bank which includes the nHome System
executed prior to the date of any such notice with a scheduled delivery date
after the effective date of such price increase shall be sold to Reseller at the
revised price for the nHome System. Any nHome System scheduled for delivery to a
Bank prior to the effective date of any such price increase but delayed due to
the fault of nFront or for reasons beyond nFront's control shall be sold to
Reseller at the price as in effect on the date Reseller ordered the nHome
System. The price protection provisions contained in this Section 4.3 shall
apply only to the initial access fees listed on Exhibit D attached hereto, and
shall not apply to any increase in processing fees, which increase shall be
effective as of the thirtieth day following written notice of such increase to
Reseller.
4.4 Taxes and Other Fees. Reseller shall pay all 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
nHome System ordered by Reseller, or in Reseller's possession, or related
service fees.
ARTICLE V
Warranties
5.1 nFront's Warranty. nFront represents and warranties that: (a) the Software
will perform in accordance with the applicable specifications and documentation;
(b) the Software will (i) store all date-related information and process all
data interfaces involving dates in a manner that unambiguously identifies the
century, for all date values before, during and after the Year 2000; (ii)
calculate, sort, report and otherwise operate correctly and in a consistent
manner for all date information processed by the Software, whether before,
during or after the Year 2000; (iii) calculate, sort, report and otherwise
operate correctly, in a consistent manner and without interruption regardless
whether the date on which the Software is operated or executed is before, during
or after the Year 2000; (iv) report and display all dates with a four-digit date
so that the century is unambiguously identified; and (v) handle all leap years,
including but not limited to the Year 2000 leap year, correctly. Except as
specifically set forth in this Section 5.1, THE NHOME SYSTEM IS PROVIDED
"AS-IS", "WHERE-IS". NFRONT SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE AS TO THE NHOME SYSTEM PROVIDED UNDER THIS
AGREEMENT.
ARTICLE VI
Special Agreements Regarding Software and Other Intellectual Property
6.1 Limited License. In the performance of Reseller's obligations hereunder, it
shall be necessary for Reseller to demonstrate the nHome System. Accordingly,
subject to the terms and conditions contained herein, nFront hereby grants to
Reseller, and Reseller hereby accepts from nFront, a non-exclusive license (the
"License") of the Software solely for the purpose of demonstrating the nHome
System in operation to potential Bank customers of Reseller.
6.2 Software Covenants. Reseller agrees to comply with each of the following
requirements:
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(a) Reseller shall not copy, alter, modify, translate, decompile,
disassemble, reverse engineer or otherwise attempt to derive source code, or
create derivative works of the Software, or any part thereof, or knowingly allow
others to do so, during or after the Term.
(b) Except as otherwise specifically provided in this Agreement,
Reseller shall not loan, rent, lease, give, sub-license, or otherwise transfer,
nor communicate or otherwise disclose, the Software, including any part or any
copy thereof, in whole or in part, to any person. Reseller agrees that except
for copies of the Software provided to Reseller pursuant to Section 6.1 hereof,
all such software provided to Reseller hereunder shall remain in its sealed
package, as provided by nFront to Reseller, until delivered to a Bank customer
of Reseller.
(c) Except with respect to providing access to the nHome System to Bank
customers as authorized and specifically provided in this Agreement, Reseller
shall not electronically transfer the Software, or any part thereof, from one
computer to another over a network, irrespective of how linked.
(d) The Software, including all parts thereof, and any copies, in whole
or in part, and any and all copyrights thereto, are and remain the property of
nFront, irrespective of the ownership of the media on which such Software and
any parts or copies thereof are contained.
(e) Each copy of the Software sold to Banks shall include a service
agreement, the form of which shall be as set forth in the Exhibit E, which
agreement shall be incorporated into any Reseller agreement given to Banks,
provided, however, that nFront shall approve in advance the form of any such
agreement. To enable nFront to verify compliance herewith, Reseller shall
provide nFront with any form agreements which Reseller plans to use in
connection herewith at least thirty (30) days prior to such use.
(f) Reseller acknowledges that the laws and regulations of the United
States restrict the export and re-export of commodities and technical data of
United States origin, including the nHome System. Reseller agrees that it shall
not export or re-export such Software in any form without nFront's consent,
which consent shall, among other things be conditioned upon Reseller receiving
the appropriate United States and foreign government licenses and approvals.
(g) Reseller shall not, by any act or omission, impair or prejudice the
copyright or any other right of whatever nature of nFront in and to the nHome
System or any part thereof, and shall not deal with the same in any manner which
may allow any third party to obtain any rights in the same which are
inconsistent or which conflict with the rights of nFront.
6.3 Notices; Markings; Trademarks; Tradenames. Reseller agrees to comply with
the following:
(a) Reseller shall not delete any trademarks, tradename or copyright
notice present in, on or displayed by the nHome System, or any part thereof.
(b) Reseller shall not add to any notice present in, on or displayed by
the nHome System its own copyright, trademark or other proprietary notices
unless such notices have been previously approved in writing by nFront.
(c) Except as already present in, on or displayed by the nHome System
software and/or accompanying packaging or Documentation provided by nFront,
Reseller shall not use any trademarks and/or tradenames of nFront without prior
written approval of nFront.
6.4 Documentation. Each nHome System sold by Reseller to a Bank shall include
one (1) set of accompanying Documentation. Reseller 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.
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ARTICLE VII
Confidentiality and Non-Disclosure
7.1 Reseller Obligations.
(a) Reseller recognizes, acknowledges and agrees that during the Term,
nFront may furnish to Reseller certain technical and commercial information,
including but not limited to, designs, procedures, formulas, discoveries,
inventions, improvements, innovations, concepts and ideas, lists of customers,
computer programs, business methods, and plans for future developments
("nFront's Confidential Information") which is the confidential, proprietary
property of nFront. Information that is not disclosed or marked as confidential
shall not be regarded as nFront's Confidential Information unless such
information is of the type that Reseller should reasonably expect to be of a
confidential nature in which case Reseller shall treat such information as
nFront's Confidential Information. Reseller recognizes, acknowledges and agrees
that nFront's Confidential Information is to be maintained in secrecy and
confidence by Reseller and Reseller's employees, agents or representatives to
whom Reseller discloses any of nFront's Confidential Information. Reseller
agrees for itself and for each of its employees, agents or representatives to
whom Reseller discloses any of nFront's Confidential Information that such
information shall be used only in accordance with the terms, covenants,
conditions and limitations of this Agreement, and not for the benefit of or for,
directly or indirectly, Reseller or any of its employees, agents or
representatives. Information previously known to Reseller without an obligation
of confidentiality, and information independently developed by Reseller, shall
not be considered to be nFront's Confidential Information. Information made
available to the general public by nFront and information obtained from third
parties not associated with nFront shall not be considered to be nFront's
Confidential Information, except for information received from third parties
that Reseller knows or should have known was obtained illegally or in violation
of this Agreement. In the event Reseller or a representative of Reseller is
requested by law, order of court or any agency to disclose any of nFront's
Confidential Information, Reseller shall give nFront prompt notice of such
request so that nFront may seek an appropriate protective order. If, in the
absence of a protective order, Reseller or a representative of Reseller is
nonetheless compelled by law to disclose any of nFront's Confidential
Information, Reseller or a representative of Reseller, as the case may be, may
disclose such information in such proceeding without liability hereunder;
provided, however, that Reseller gives nFront written notice of the information
to be disclosed after receipt of such order by Reseller and, upon nFront's
request and at its expense, Reseller shall use its best efforts to obtain
assurances that confidential treatment shall be accorded to such information.
(b) In the event this Agreement is terminated for any reason, the
Reseller agrees to return promptly nFront's Confidential Information, including
all copies thereof, to nFront, or to deliver all such information promptly to
such party as may be designated by nFront or to destroy such information.
Reseller further agrees thereafter not to use or disclose nFront's Confidential
Information in any manner whatsoever without the prior written approval of
nFront unless and until such information shall lawfully become generally known
in the public domain through no fault of the Reseller or breach by the Reseller
of the covenants contained herein.
(c) Reseller shall disclose nFront's Confidential Information to Banks
only to the extent necessary to enable such customers to use the nHome System,
and only after any such Bank executes an agreement in form and substance
acceptable to nFront, acknowledging the confidential nature of such information
and setting forth the appropriate treatment of such information.
7.2 nFront's Obligations.
(a) nFront recognizes, acknowledges and agrees that during the Term,
Reseller may furnish to nFront certain technical and commercial information,
including but not limited to, designs, procedures, formulas, discoveries,
inventions, improvements, innovations, concepts and ideas, list of customers,
computer programs, business methods, and plans for future developments
("Reseller's Confidential Information"), which is the confidential, proprietary
property of Reseller. Information that is not disclosed or marked as
confidential shall not be regarded as Reseller's Confidential Information unless
such information is of the type that nFront should reasonably expect to be of a
confidential nature in which case nFront shall treat such information as
Reseller's Confidential Information. nFront recognizes, acknowledges and agrees
that Reseller's Confidential Information is to be maintained in secrecy
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and confidence by nFront and nFront's employees, agents or representatives to
whom nFront discloses any of Reseller's Confidential Information. nFront agrees
for itself and for each of its employees, agents or representatives to whom
nFront discloses any of Reseller's Confidential Information that such
information shall be used only in accordance with the terms, covenants,
conditions and limitations of this Agreement, and for the benefit of or for,
directly or indirectly, nFront or any of its employees, agents or
representatives. Information previously known to nFront without an obligation of
confidentiality, and information independently developed by nFront, shall not be
considered to be Reseller's Confidential Information. Information made available
to the general public by Reseller and information obtained from third parties
not associated with Reseller shall not be considered to be Reseller's
Confidential Information, except for information received from third parties
that nFront knows or should have known was obtained illegally or in violation of
this Agreement. In the event nFront or a representative of nFront is requested
by law, order of court or any agency to disclose any of Reseller's Confidential
Information, nFront shall give Reseller prompt notice of such request so that
Reseller may seek an appropriate protective order. If, in the absence of a
protective order, nFront or a representative of nFront is nonetheless compelled
by law to disclose any of Reseller's Confidential Information, nFront or a
representative of nFront, as the case may be, may disclose such information in
such proceeding without liability hereunder; provided, however, that nFront
gives Reseller written notice of the information to be disclosed after receipt
of such order by nFront and, upon Reseller's request and at its expense, nFront
shall use its best efforts to obtain assurances that confidential treatment
shall be accorded to such information.
(b) In the event this Agreement is terminated for any reason, nFront
agrees to return promptly Reseller's Confidential Information, including all
copies thereof, to Reseller or to deliver all such information promptly to such
party as may be designated by Reseller or to destroy such information. nFront
further agrees thereafter not to use or disclose Reseller's Confidential
Information in any manner whatsoever without the prior written approval of
Reseller unless and until such information shall lawfully become generally known
in the public domain through no fault of nFront or breach by nFront of the
covenants contained herein.
(c) nFront shall disclose Reseller's Confidential Information to Banks
only to the extent necessary to enable such customers to use the nHome System,
and only after any such Bank executes an agreement in form and substance
acceptable to Reseller, acknowledging the confidential nature of such
information and setting forth the appropriate treatment of such information.
ARTICLE VIII
Term and Termination
8.1 Term. This Agreement shall commence as of the date hereof and shall remain
in effect (unless sooner terminated pursuant to Section 8.2 hereof) for 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 Reseller notifies the other party in writing of
its election (at its sole option, for any reason or for no reason) not to renew.
Any such renewal periods shall be considered an extension of and part of the
Term.
8.2 Right to Terminate. Notwithstanding any other provision hereof, this
Agreement may be terminated either (i) by mutual agreement of the parties
hereto; (ii) by either party at any time if the other party has materially
breached any of the provisions hereof and, if the breach is curable, has failed
to cure such alleged breach within 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. In the event either party materially breaches any of the provisions
hereof, and such breach is not curable, this Agreement shall be immediately
terminable by the non-breaching party. Without limiting the foregoing, any
violation of Articles VI, VII and IX hereof shall constitute a noncurable breach
and if either party commits such a breach, this Agreement shall be terminable
immediately by the non-breaching party.
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8.3 Effect of Termination.
(a) Any termination of this Agreement shall not release Reseller from
paying any amount which may then be owing to nFront. In the event of any
termination of this Agreement, all obligations owed by Reseller to nFront shall
become immediately due and payable on the effective date of termination whether
otherwise then due or not (without presentation, demand, protest or notice of
any kind, all of which are hereby waived by Reseller); and nFront may offset and
deduct from any or all amounts owed to Reseller, if any, any or all amounts owed
by Reseller to nFront, rendering to Reseller the excess, if any.
(b) Upon termination of this Agreement, Reseller shall return to
nFront, promptly and without charge to nFront, all Documentation, price lists,
maintenance and policy manuals, sales aids and other publications of nFront
relating to the nHome System which Reseller has on hand. Reseller shall
thereupon immediately cease using any trademarks, tradenames, service marks or
other identifying marks on any of its materials.
(c) Reseller shall be solely responsible for all commitments incurred
or assumed by it during the Term or thereafter, 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.
ARTICLE IX
Non-Competition Agreement
9.1 During the Term Reseller shall use best efforts to not, directly or
indirectly, individually, on behalf of or in conjunction with any other person
or legal entity, or for or on behalf of any person, corporation, partnership,
company, trade association, agent, agency or other entity, engage in the
business of selling or distributing any Internet Banking solution other than
nHome which provides substantially similar banking functionality to Reseller's
Customer Base provided the nHome product remains competitive in both pricing and
functionality in the overall marketplace. Reseller is not precluded from
providing interfaces to other Internet banking solutions upon Customer's
request, however, Reseller cannot receive revenue from any outside Internet
banking vendor other than nFront for such interface or processing.
Notwithstanding the above, should Reseller acquire a transaction processing
business who has a substantially similar agreement with an alternate Internet
banking provider, this Agreement will not prohibit Reseller from generating
revenue from the acquired base.
ARTICLE X
Indemnification; Other Relief
10.1 Indemnification by Reseller. Reseller shall indemnify, defend and hold
harmless nFront, its officers, directors, shareholders, employees, agents and
affiliates from and against any claims, losses, damages, liabilities or expenses
(including, without limitation, reasonable attorneys' fees and expenses)
(collectively, "Claims") resulting from or arising out of negligence or
intentional misconduct in Reseller's use or misuse of the nHome System or any
part thereof by Reseller or any Bank included in the Customer Base, any
misrepresentations made by Reseller with respect to the nHome System or a breach
of any of the provisions of this Agreement, provided, however, that in respect
of any Claims hereunder against Reseller that arise out of or result from any
alleged use or misuse of the nHome System or any part thereof by Reseller or any
Bank Customer of Reseller or any alleged misrepresentation made by Reseller with
respect to the nHome System, Reseller shall be notified promptly of such Claim
in writing and shall be given authority, control and full and proper information
and assistance in the defense and settlement of such Claim. Notwithstanding the
foregoing, Reseller shall not have the authority to settle or compromise any
Claim in a manner that indicates that nFront contributed to or was responsible
for the cause of any such Claim unless nFront consents in writing to such
settlement.
10.2 Indemnification by nFront. Subject to the limitations set forth in Section
10.5 hereof, nFront shall indemnify, defend and hold harmless Reseller, its
officers, directors, shareholders, employees, agents and affiliates from and
against any claim, suit or proceeding based upon an allegation that the nHome
System (or any portion thereof) infringe
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upon or misappropriate any copyright, patent, trademark or trade secret of any
third party, provided that nFront is notified promptly of such claim, suit or
proceeding in writing and is given authority, control and full and proper
information and assistance in the defense and settlement of such claim, suit or
proceeding. If the nHome System is finally determined by a court of competent
jurisdiction to constitute an infringement of any patent, copyright, trademark
or other trade secret of a third party and its use is enjoined, nFront shall
either:
(a) procure the right for Reseller to continue to use the nHome System
under this Agreement; or
(b) replace or modify the nHome System with a version of the nHome
System that is not so infringing and that satisfies this provision of this
Agreement.
10.3 Arbitration. The parties to this Agreement agree that any controversies or
claims arising out of or relating to this Agreement (including, without
limitation, any alleged breach thereof or the termination or non-renewal
thereof) shall be settled by arbitration pursuant to the Federal Arbitration
Act, 9 U.S.C. ss. 1 et seq., in accordance with the Commercial Arbitration Rules
of the American Arbitration Association. The parties hereto further agree that
the arbitrators in any such arbitration shall not be authorized to award any
punitive damages in connection with any controversy or a claim settled by
arbitration hereunder. The decision of the arbitrator in any such arbitration
shall be final and binding upon the parties and judgment upon the award may be
entered in any court having jurisdiction thereof. Any arbitration shall take
place in Atlanta, Georgia, and the expenses of the arbitrators shall be
allocated by such arbitrators. The arbitration shall be conducted before a panel
of three (3) arbitrators, one selected by Reseller, one selected by nFront, and
one selected by mutual agreement of the arbitrators selected by Reseller and
nFront.
10.4 Injunctive Relief. Notwithstanding the provisions of Section 10.3 hereof,
the parties acknowledge and agree that any breach of the provisions of Articles
VI, VII or XI of this Agreement shall result in irreparable harm to nFront for
which no adequate remedy at law exists. Accordingly, upon any such breach, the
non-breaching party shall be entitled to injunctive or other appropriate
extraordinary relief, such relief being in addition to, and not in lieu of, any
other rights and remedies, including the award of damages, available at law or
in equity. Reseller acknowledges and agrees that no serious harm to it shall
result from the entry of any such equitable relief against it, and therefore any
bond required of a non-breaching party in connection with such relief shall be
set in an amount not in excess of One Thousand Dollars ($1,000.00) The parties
shall not be required to prove money damages to enforce any provision of this
Agreement.
10.5 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO A BREACH OF ARTICLES XI,
XII AND XI OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
LOSS OF PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF
ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE NHOME SYSTEM OR
NON-DELIVERY OF NHOME SYSTEM EVEN IF NFRONT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. SUBJECT TO THE MAXIMUM LIABILITY SET FORTH IN THIS PARAGRAPH,
IN NO EVENT SHALL NFRONT'S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT
EXCEED THE AMOUNT PAID TO NFRONT BY RESELLER UNDER THIS AGREEMENT WITHIN THE
THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF SUCH CLAIM. EXCEPT
WITH RESPECT TO A BREACH OF ARTICLES XI, XII AND XI OF THIS AGREEMENT, IN NO
EVENT SHALL EITHER PARTY'S MAXIMUM, CUMULATIVE LIABILITY FOR ALL CLAIMS UNDER
THIS AGREEMENT EXCEED $25,000 OR ALL AMOUNTS PAID BY RESELLER TO NFRONT
HEREUNDER, WHICHEVER IS LESS. NO CLAIM MAY BE BROUGHT BY RESELLER UNDER THIS
AGREEMENT MORE THAN TWO (2) YEARS AFTER ACCRUAL OF SUCH CLAIM.
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ARTICLE XI
Back-up System
11.1 Back-up System.
(a) Within a reasonable period after execution of this Agreement,
nFront shall deliver to Reseller, the nHome System on appropriate media, which
Reseller shall store in a secure location (the "Back-up System"). During the
Term and until the Password Release Date, nFront shall update the Back-up System
no more frequently than twice annually unless mutually agreed upon. Concurrently
with the execution of this Agreement, nFront and Reseller shall enter into a
Password Escrow Agreement in respect of the Back-up System in the form attached
hereto as Exhibit G. If, pursuant to such agreement the Password (as defined in
such agreement) is released to Reseller (the "Password Release Date"), Reseller
may use the Password solely to continue to provide services to its Customer Base
as in effect as of the Password Release Date for a period ending on the earlier
of (i) the date that Reseller secures the services of an alternate provider of
Internet home banking services or (ii) one (1) year from the date of such
release (the "Password Termination Date"). On the Password Termination Date,
Reseller shall deliver to nFront (or its successor-in-interest to the Password
and Back-up System) the nHome System and all copies thereof then in Reseller's
custody or control. Reseller's obligations under Articles VI and VII of the
Agreement shall apply to the Back-up System.
(b) Prior to the Password Release Date, Reseller shall not access, or
attempt to access, the Back-up System. If, prior to the Password Release Date,
Reseller breaches the provisions of this Section 11.1(b), in addition to any
other remedies that nFront may have in law or in equity, nFront may, without
notice to Reseller, terminate this Agreement forthwith.
(c) Reseller shall pay all costs and expenses associated with the
generation, maintenance and storage of the Back-up System and the Password
Escrow Agreement. The generation and maintenance cost and expenses are estimated
to be a one-time $300.00 per bank setup and $2,500 per semi-annual Customer Base
backup.
(d) Upon the Password Release Date, nFront shall be available to assist
the Reseller to implement the System in accordance with a project plan and cost
structure to be mutually agreed upon by the parties.
ARTICLE XII
Miscellaneous Provisions
12.1 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.
12.2 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.
12.3 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.
12.4 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 the other party, which will not
be reasonably withheld, and
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any such attempted assignment shall be void. Notwithstanding the immediately
preceding sentence, nothing herein shall be construed as prohibiting the
assignment of this Agreement as a result of the merger, consolidation or other
corporate reorganization or acquisition of the parties including, without
limitation, the assignment of this Agreement in connection with the sale of all
or substantially all of the assets of the parties.
12.5 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.
12.6 Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the Term,
such provision shall be fully severable. This Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement.
12.7 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.
12.8 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.
12.9 Survival. The provisions of Articles V, VI, VII, VIII, IX, X, XI and XII
shall survive any termination or expiration of this Agreement.
ARTICLE XIII
Special Provisions
13.1 Special Provisions. All special provisions are fully described in
Exhibit F attached hereto ("Special Provisions.")
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
NFRONT, INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Its: President / CEO
----------------------------------------
Date: 4/10/98
---------------------------------------
RESELLER
By: /s/ Xxxx Bloirke
-----------------------------------------
Its: President & COO
----------------------------------------
Date: 4/10/98
---------------------------------------
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EXHIBIT A
ONLINE BANKING APPLICATION
1. View Account Balances and Histories
- DDA/Savings
- CD/XXX
- Loans
2. Transfer Funds between DDA and Savings accounts
- Immediate and Future Transfers
- One Time and Recurring Transfers
3. Xxxx Payment
4. Pending Transactions
5. Custom Reports
6. PIN Manager
7. Personal Information
8. PFM Downloads
- Microsoft Money
- Quicken
9. Online Help
10. Online Banking Demo
SECURE ACCOUNT OPENING
1. 7 Secure Product Applications
- Checking
- Savings
- CD/XXX
- Consumer/Commercial Loans
- Line of Credit
2. Additional Secure Application (also considered a secure product
application)
- Quizzes
- Surveys, etc.
INTERNET WEB SITE
1. Home Page
- Bank branding (logo)
- Custom navigational controls
- scanned images or custom graphics
2. Product and Service (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
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5. Financial Calculators
- Loan
- Maximum Loan
- College Planning
- Mortgage
- Retirement
ADMINISTRATION SITE
1. Product Application Secure Database Management
2. Guestbook Secure Database Management
3. Site Updates
- Rates and Terms
- Email Notifications
4. Detailed Billing
5. Online Help
EMAIL
1. Email - The bank will be assigned one @xxxxxxx.xxx email address. This
"general" mailbox will forward all incoming mail to any/all bank
specified email addresses.
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EXHIBIT B
Reseller will provide Specific Customer information to nFront, within 72 hours,
upon request through out the duration of this Agreement.
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EXHIBIT C
1) DSI - Will receive 20% of all initial fees and 10% of all recurring fees,
unless the Bank is a TotalPlus Legacy or Client Server customer then will
receive the standard Reseller 40% revenue.
2) Creative Solutions - Will receive 20% of all initial fees and 10% of all
recurring fees, unless the Bank is a TotalPlus Legacy or Client Server
customer then will receive the standard Reseller 40% revenue.
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EXHIBIT D
ONLINE BANKING APPLICATION
1. View Account Balances and Histories
- DDA/Savings
- CD/XXX
- Loans
2. Transfer Funds between DDA and Savings accounts
- Immediate and Future Transfers
- One Time and Recurring Transfers
3. Xxxx Payment
4. Pending Transactions
5. Custom Reports
6. PIN Manager
7. Personal Information
8. PFM Downloads
- Microsoft Money
- Quicken
9. Online Help
10. Online Banking Demo
SECURE ACCOUNT OPENING
1. 7 Secure Product Applications
- Checking
- Savings
- CD/XXX
- Consumer/Commercial Loans
- Line of Credit
2. Additional Secure Application (also considered a secure product
application)
- Quizzes
- Surveys, etc.
INTERNET WEB SITE
1. Home Page
- Bank branding (logo)
- Custom navigational controls
- 3 scanned images or custom graphics
2. Product and Service (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
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5. Financial Calculators
- Loan
- Maximum Loan
- College Planning
- Mortgage
- Retirement
ADMINISTRATION SITE
1. Product Application Secure Database Management
2. Guestbook Secure Database Retrieval
3. Site Updates
- Rates and Terms
- Email Notifications
4. Detailed Billing
5. Online Help
EMAIL
1. Email - The bank will be assigned one @xxxxxxx.xxx email address. This
"general" mailbox will forward all incoming mail to any/all bank
specified email addresses.
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1. NHOME PRICING (RESELLER WILL RECEIVE 40% OF ALL NHOME PRICING). ANY CHANGE
IN PRICING MUST BE MUTUALLY AGREED UPON. IN THE EVENT OF A PRICING CHANGE,
THE REVENUE SPLIT BETWEEN NFRONT AND RESELLER WILL REMAIN THE SAME UNLESS
OTHERWISE MUTUALLY AGREED UPON.
NFRONT ACKNOWLEDGES THAT RESELLER HAS EXISTING AND POTENTIAL RELATIONSHIP
DISCOUNTS WITH CUSTOMERS AND PROSPECTS. IN THE EVENT THAT A CUSTOMER OR
PROSPECT RECEIVES SUCH DISCOUNT, RESELLER WILL APPRIZE NFRONT OF THE
DISCOUNT. THE RELATIONSHIP DISCOUNT WILL BE ACCOUNTED FOR BY REDUCING THE
RESELLER REVENUE FOR THAT SPECIFIC ACCOUNT.
ASSET SIZE LICENSE FEE SYSTEM SUPPORT (MO.) PER CUSTOMER COST**
---------------------------------------------------------------------------------------------------------------
0-1000 1000-2500 2500-5000 5000&>
$0-50M $[+++] $[+++]/Mo. $[+++] $[+++] $[+++] $[+++]
$50-100M $[+++] $[+++]/Mo. $[+++] $[+++] $[+++] $[+++]
$100-150M $[+++] $[+++]/Mo. $[+++] $[+++] $[+++] $[+++]
$150-250M $[+++] $[+++]/Mo. $[+++] $[+++] $[+++] $[+++]
$250-500M $[+++] $[+++]/Mo. $[+++] $[+++] $[+++] $[+++]
$500-750M $[+++] $[+++]/Mo. $[+++] $[+++] $[+++] $[+++]
$750-1B $[+++] $[+++]/Mo. $[+++] $[+++] $[+++] $[+++]
$1-1.5B $[+++] $[+++]/Mo. $[+++] $[+++] $[+++] $[+++]
$1.5B & > $[+++] $[+++]/Mo. $[+++] $[+++] $[+++] $[+++]
2. ONLINE XXXX PAYMENT (RESELLER WILL ADD A MARGIN TO THE FOLLOWING FEES AND
WILL RECEIVE 100% OF THE ADDED MARGIN)
- $[+++] per month/per customer
- $[+++] per xxxx
3. ONLINE BANKING ONLY
- License Fee x ([+++]%)
4. CUSTOMER FEES (RESELLER WILL RECEIVE 40% OF THE CUSTOMER FEES)
- Xxxx Payment Customer Set-up (per customer) $ [+++]
- On-line Banking Customer Set-up (per customer) $ [+++]
- Application (per application) $ [+++]
5. HOME OPTIONS (RESELLER WILL RECEIVE 40% OF THE NHOME OPTION FEES)
- nForm- multimedia presentation (10 frames) $ [+++]
- Site Map Construction $ [+++]
- Management Reporting (Annually) $ [+++]
- Internet TV Site Quote
*Customer URL (Universal Resource Locator) and Verisign security key will be
billed, at cost, directly to the customer.
**$[+++] Monthly minimum.
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