1
EXHIBIT 10.10
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
LICENSE AND MARKETING AGREEMENT
BETWEEN OPEN SOLUTIONS INC. &
CONNECTICUT ON-LINE COMPUTER CENTER, INC.
This Software License Agreement (the "Agreement") is entered into as of
December 9, 1997 (the "Effective Date") by and between Connecticut On-line
Computer Center, Inc. (COCC), a Connecticut corporation with its principal place
of business at, 000 Xxxxxxx Xxxxx, Xxxx Xxxx Xxxxx, Xxxx, XX 00000 and Open
Solutions Inc. (OSI), a Delaware corporation with its principal place of
business at 000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxxxx, XX 00000.
RECITALS
A. COCC is a leading provider of comprehensive data processing
outsourcing services to financial institutions in the Northeast region of the
United States.
B. OSI is the developer and owner of The Complete Banking
Solution(TM) ("System") and is a leading supplier of client/server software and
information services to financial institutions.
C. The parties wish to establish an agreement whereby (i) COCC will
be the Regional Outsourcing Data Center providing the System to Financial
Institutions in Connecticut, Vermont, New Hampshire, Maine, Massachusetts, Rhode
Island, New York and any additional states as mutually added to this Agreement;
(ii) OSI will license to COCC the OSI Proprietary Software, OSI Interface
Software and related Documentation used in connection with the System; (iii) the
parties will engage in certain marketing and selling activities; and (iv) COCC
will be a recommended preferred provider of certain related services.
Now, therefore, in consideration of the mutual obligations set forth
herein, the parties agree as follows.
1 DEFINITIONS.
1.1 Assets - shall mean the total dollar value of a Financial
Institution's accounts which are processed by COCC as a Regional Outsourcing
Data Center, as defined below.
1.2 Change of Control - shall mean with respect to a particular
entity (i) the consummation of a merger or consolidation of that entity with
another in which the owners of interests (shares or otherwise) of the particular
entity immediately prior to the consummation of such transaction do not own at
least 65% of the ownership interests of the surviving successor, acquiring or
assuming entity; (ii) the sale of all or substantially all the assets of such
entity; or (iii) the acquisition of
2
beneficial ownership by any person (including a group within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) of
35% or more of the outstanding ownership interests of such entity. For the
purposes of this agreement an initial public offering of OSI or COCC shall not
be deemed a change in control.
1.3 COCC Territory - shall mean those Financial Institutions
located in Connecticut, Vermont, New Hampshire, Maine, Massachusetts, Rhode
Island, New York and any additional states as added to this Agreement by written
mutual agreement, including all branches, whether located in or outside of the
above states, of those Financial Institutions.
1.4 Conversion - shall mean the process of converting a
Customer's data to the System.
1.5 Conversion Date - shall mean the date on which live
production begins. Live production shall mean the time when Customer uses the
System or portions thereof to execute transactions, produce reports or retrieve
information from the OSI Database Model in a production (non-test) environment.
1.6 Customer - shall mean any Financial Institution for which
COCC provides data processing Outsourcing Services using the System, including
all branches of such Financial Institution.
1.7 Designated Hardware and Operating Systems - the preferred
hardware and operating software upon which the OSI Proprietary Software and OSI
Interface Software is intended to run as defined in Schedules A, B and C; as
attached hereto and as amended from time to time.
1.8 Documentation - shall mean all user manuals, system guides
and related publications and any developers' notes or similar written material
for the OSI Proprietary Software and OSI Interface Software.
1.9 Enhancements - shall mean all upgrades, improvements,
modifications and updates to the OSI Proprietary Software and OSI Interface
Software made available to OSI or COCC customers, but shall not include software
programs created by COCC that are intended to operate as stand-alone software
programs independently, but which may interface with the OSI Database Model, OSI
Proprietary Software and OSI Interface Software.
1.10 Financial Institution - shall mean all classes of banks,
including those chartered under state or federal law, commercial banks, savings
banks, mutual savings banks, thrift institutions, savings and loan associations,
credit unions and branches thereof.
-2-
3
1.11 Interface Software - shall mean software other than the OSI
Interface Software, including software developed by COCC, used to interface
between and among the various application software included in the System and
between and among peripherals for use in connection with the System.
1.12 License - shall mean the restricted non-transferable, non-
assignable right granted to COCC hereunder for the use by COCC and COCC's
Customers of the OSI Proprietary Software and OSI Interface Software within
their own data processing facilities to provide data processing facilities and
services by COCC as a Regional Outsourcing Data Center to its Customers during
the term of this Agreement.
1.13 License Fee - shall mean the amount paid to OSI by COCC to
obtain the rights to use the System as further described in Section 7 herein.
1.14 Master Copy - shall mean the source code and object code
form copy of the OSI Proprietary Software and OSI Interface Software and the
data base code for the OSI Database Model to be delivered upon execution of this
Agreement and thereafter from time to time as such code is enhanced and revised
by OSI to reflect the most current versions made available by OSI for use with
the System.
1.15 OSI Database Model - shall mean the database code and
resulting database model developed by OSI and included in the System.
1.16 OSI Proprietary Software - means collectively, the
version(s) of software as set forth in object code format, and database code
format with respect to the OSI Database Model, together with the Documentation
to be provided to COCC by OSI, for use in connection with the System, including
updates, Enhancements and modifications of such software, database code and
Documentation that may be provided by OSI to COCC from time to time, which in
its current form is attached hereto as Schedule D.
1.17 OSI Interface Software - shall mean that software developed
and owned by OSI, or licensed to OSI used to interface between and among various
application software and between and among peripherals for use in connection
with the System, initially identified on Schedule E hereto, as may be amended
from time to time by OSI by written notice to COCC.
1.18 Outsourcing Services - shall mean the outsourcing by
Financial Institutions of data processing and other information processing
services from a third party that provides such services remotely from its data
center facilities.\
-3-
4
1.19 Pilot Institutions - shall mean the first three (3)
Customers where the System is installed, Conversion is complete, and live
production of Outsourcing Services is provided by COCC.
1.20 Regional Outsourcing Data Center - shall mean data center
facilities located within a specified territory that provides remote data
processing and other information processing services to Financial Institutions
located within such specified territory.
1.21 System - shall mean The Complete Banking Solution client
server, relational data base, operating in a Windows(TM) environment as
proprietary software of OSI, including the OSI Proprietary Software and OSI
Interface Software, as it may exist from time to time during the term of this
Agreement, for use on the Designated Hardware and Operating Systems. The System
shall not include raw data exported from the System or Database Model.
1.22 Third Party Software (TPS) - shall mean the software
developed and owned by an entity or person other than OSI used, or available for
use, in connection with the System, as initially shown on Schedule F.
2 GRANT AND ACCEPTANCE OF SOFTWARE AND TRADEMARK LICENSE.
2.1 Subject to the terms and conditions of this Agreement, OSI
hereby grants to COCC and COCC hereby accepts from OSI under all of OSI's
patents, trademarks and copyrights, as well as any know-how or trade secrets
related to the System and Documentation, a non-transferable, nonassignable
license to: duplicate, copy, distribute, display, use, adapt, modify, market,
and advertise the System during the term of this Agreement as a Regional
Outsourcing Data Center to Financial Institutions in the COCC Territory and such
additional states as may be added from time to time by written mutual agreement.
Such agreement shall not be unreasonably withheld. Notwithstanding the foregoing
or anything to the contrary in this Agreement, the license granted hereby to
duplicate, copy, use, adapt and modify the System shall be perpetual upon the
payment of the Down Payments as defined herein. It is understood and agreed that
all right, title and interest to all Enhancements made by COCC in and to the
System and Documentation and all inventions, copyrights, trade secrets and other
intellectual property rights therein shall vest in OSI.
2.2 OSI hereby grants to COCC and COCC hereby accepts from OSI a
non-exclusive, nontransferable and non-assignable right to use the OSI trade
name and The Complete Banking Solution(TM) trademark for the sole purpose of the
promotion and marketing of the System. COCC agrees to reproduce OSI's trademarks
and proprietary rights notices as necessary and appropriate on the products and
services provided by COCC to the Customer. Any and all OSI trademarks and trade
names
-4-
5
which COCC uses in connection with the rights granted hereunder are and remain
the exclusive property of OSI. Notwithstanding the foregoing, COCC has the right
to re-name the System or any component thereof in accordance with COCC's own
marketing plans to its Customers, so long as COCC gives attribution to OSI for
the use of The Complete Banking Solution(TM) trademark or OSI's proprietary
rights.
3 DELIVERY OF CODE.
3.1 Upon execution of this Agreement, OSI shall deliver to COCC
a Master Copy of the OSI Proprietary Software and OSI Interface Software in
source code and object code form, and a Master Copy of the database code for the
OSI Database Model, on disk. At all times during the term of this Agreement, OSI
shall deliver to COCC within sixty (60) days of a general software release to
its customers new Master Copies of the OSI Proprietary Software, OSI Interface
Software and OSI Database Model so that COCC has available to it the most
current version of the System, including any and all Enhancements, offered by
OSI to its customers or made available by OSI to its customers together with
copies of corresponding amendments to the Escrow Agreement, as defined below,
adding any such general release or Enhancement to the materials on deposit with
the escrow agent. As part of the License granted hereunder, COCC shall have the
right to copy, modify and use `such Master Copies and Documentation for use in
connection with its Outsourcing Services to Customers and for other purposes
contemplated hereunder, including archival, testing, support backup, disaster
recovery, and demonstration.
3.2 At all times during the term of this Agreement, COCC shall
deliver to OSI within sixty (60) days of a general software release to its
customers Master Copies of the OSI Proprietary Software, OSI Interface Software
and OSI Database Model as modified by COCC so that OSI has available to it the
most current version of the System used by COCC, including any and all
Enhancements, offered by COCC to its customers or made available by COCC to its
customers.
4 EXCLUSIVITY.
4.1 EXCLUSIVE REGIONAL OUTSOURCING DATA CENTER. COCC shall have
an exclusive License, subject to paragraph 4.2 below, to use the System to
provide Outsourcing Services as the Regional Outsourcing Data Center to
Financial Institutions located in the COCC Territory or other states added by
mutual written agreement. Such agreement shall not be unreasonably withheld.
OSI's breach of the foregoing shall be deemed a material breach under the
Agreement, provided however, OSI shall have the opportunity to cure any such
breach upon 30 days written notice.
4.2 REASONABLE COMMERCIAL EFFORTS AND COCC EXCLUSIVITY. COCC
shall use reasonable commercial efforts in seeking agreements to provide
Outsourcing
-5-
6
Services to new and existing Financial Institutions. To retain the marketing
exclusivity agreement set forth in paragraph 4.1 above, within three years
following the Conversion Date of the Pilot Institutions, COCC must have a number
of Customers equal to each of the aggregate number of Financial Institutions for
which COCC provides Outsourcing Services as of the date of this Agreement. In
the event that COCC does not have such a number of Customers after three years
following the date hereof, OSI shall have the right to license the System for
use by other Outsourcing Services providers in the COCC Territory. The aggregate
number of Financial Institutions for which COCC provides Outsourcing Services as
of the date of this Agreement is set forth on Schedule G.
4.3 OSI EXCLUSIVITY. OSI shall be the exclusive provider of
client/server core data processing software for COCC during the shorter of (i)
the term of this Agreement or (ii) for so long as COCC retains the right to
maintain exclusivity as the only Regional Outsourcing Data Center within the
COCC territory. COCC'S breach of the foregoing shall be deemed a material breach
under the Agreement, provided however, COCC shall have the opportunity to cure
any such breach upon notice as provided in Section 16.2.2 herein. The parties
agree that COCC's parallel mainframe software that provides substantially the
same service as the System shall not be considered client/server core data
processing software and any software installed and used on COCC's mainframes
shall not violate the terms of this Agreement.
4.4 CHANGE IN CONTROL. OSI's obligations as to marketing
exclusivity set forth in section 4.1 above, shall terminate in the event that
OSI chooses not to reaffirm the Agreement within 180 days of a Change of Control
of COCC. OSI reserves the right to restrict the license to the then existing
Customers of COCC using the System at the time of a change of control of COCC.
5 SALES AND MARKETING.
5.1 TRAINING. OSI shall provide four weeks advance notice of its
regularly scheduled and periodic special internal sales training programs, as
well as any other internal training programs for sales and product support,
customer service personnel and systems and software engineers. COCC shall have
the right to include a reasonable number of its employees in such training
programs, subject to class-size limitations, on a commercially reasonable fee
basis. COCC shall be responsible for reasonable out-of-pocket costs and expenses
directly resulting from the participation of its employees in such training
programs as well as all reasonable travel costs.
5.2 TRADE SHOWS. OSI and COCC shall use commercially reasonable
efforts to provide each other with advance notice of their intent to participate
in a trade show so that the parties may jointly participate.
-6-
7
5.3 DEMONSTRATION. Upon execution of this Agreement, OSI shall
provide to COCC a copy of OSI's demonstration program for sales and
demonstration purposes and shall thereafter provide COCC with the most current
version of such demonstration program as it may exist from time to time.
5.4 MARKETING PLANS. COCC and OSI shall use commercially
reasonable efforts following execution of this Agreement to develop a plan that
reflects the parties joint sales and marketing efforts. The parties recognize
that it is in the parties' best interest that the reputation of the System be
upheld and, accordingly, they shall make commercially reasonable efforts to
provide quality sales and service to COCC's Customers.
5.5 SALES SUPPORT. OSI agrees to participate directly in any
sales and marketing presentations to potential Customers and to otherwise be
actively involved in providing sales support to COCC until COCC has entered into
Outsourcing Services agreements for the Pilot Institutions. Thereafter, upon
COCC's reasonable request, OSI shall provide appropriate sales support to assist
COCC in its efforts to obtain additional Customers. COCC shall be responsible
for OSI's reasonable expenses incurred for such support.
5.6 NOTICE OF AGREEMENTS WITH CUSTOMERS. Unless specifically
prohibited by the terms of such agreement, COCC shall provide written notice to
OSI within thirty (30) days after each new Conversion Date. OSI shall have the
right at its own expense to audit COCC for Financial Institutions utilizing the
System. An audit may be done on a annual basis with fifteen (15) days notice to
COCC. If any such audit shows any discrepancy of greater than five percent (5%)
in the license fees owed to OSI, COCC shall pay the cost of the audit in
addition to a one and one-half percent (1.5%) per month late fee for any
outstanding balance discovered.
5.7 PRESS RELEASES. The parties expect to issue a mutually
agreed joint press release announcing the execution of this Agreement. Prior to
such public announcement, neither party shall make any public disclosure of the
existence or terms of this Agreement without the prior written consent of the
other.
6 CONVERSION AND PRODUCTION SUPPORT.
6.1 PILOT INSTITUTIONS. In cooperation with COCC, OSI shall
provide the Conversion, programming, operations, and training resources
necessary to convert the Pilot Institutions, provided, however, COCC shall
retain control of the Customer interface. COCC shall pay OSI all fees for the
Conversion charged to and paid by the Pilot Institutions, or if no Conversion
fee is charged by COCC, COCC
-7-
8
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
shall pay OSI its current conversion services per diem rate of [**] plus
reasonable expenses. OSI shall prepare the Conversion plans and provide a copy
to COCC.
6.2 SUBSEQUENT CONVERSATIONS. COCC shall participate in the
Pilot Institution Conversions as a training mechanism and shall be responsible
for all subsequent Conversions following the Pilot Institutions. At COCC's
request, OSI shall provide support and related production for any Conversions
subsequent to the Pilot Institutions. COCC shall pay OSI for such assistance at
the then current per diem rate for conversion services plus reasonable expenses.
7 LICENSE FEES.
7.1 LICENSE FEES FOR OUTSOURCING. COCC will pay OSI license fees
based on an aggregate one-time License Fee tied to the total Assets under
management by COCC. Upon the execution of this Agreement, COCC will pay OSI [**]
an initial down payment and COCC will pay OSI an additional [**] down payment
upon successful Conversion of the Pilot Institutions ("Down Payments"). COCC
will pay to OSI a one-time fee of [**] of Assets of any Customer converted.
Payments will be made monthly on an "as converted basis" and will cease for all
Customers when an aggregate of [**] has been paid (inclusive of the Down
Payments). The[**] shall be considered a cap on the total License Fees payable
by COCC to OSI, subject to paragraph 7.3 below, but shall not be considered a
minimum or guarantee of License Fees.
7.2 RE-COMPUTATION. To retain the license fee pricing set forth
in paragraph 7.1 above, COCC must, within [**] following the Conversion Date of
the Pilot Institutions, have a number of Customers equal to [**] of the
aggregate number of Financial Institutions for which COCC provides Outsourcing
Services as of the date of this Agreement hereof and as set forth on Schedule G.
In the event that COCC does not have such a number of Customers after [**]
following the Conversion Date of the Pilot Institutions, OSI shall have the
right to re-negotiate the amount of License Fees payable upon any Conversion
occurring after such [**] period. The re-negotiated fees shall be subject to the
following formula:
7.2.1 If COCC has converted [**] of Financial Institutions
to the System, COCC shall pay to OSI a one-time fee
of [**];
7.2.2 If COCC has converted [**] of Financial Institutions
to the System, COCC shall pay to OSI a [**]; or
-8-
9
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
7.2.3 If COCC has converted [**] of Financial Institutions
to the System, COCC shall pay to OSI a one-time fee
of [**].
7.3 ASSETS OVER [**]. At no time shall the total License Fees
payable by COCC to OSI exceed [**] during the first [**] of this Agreement. [**]
after the execution date of this Agreement, COCC and OSI agree to jointly
conduct an analysis of Financial Institutions using the System to determine any
increase in aggregate Assets under management by COCC. COCC shall subsequently
pay to OSI an additional onetime license fee in [**] annual installments of
an amount equal to [**] in excess of [**] then under management by COCC for
Customers using the System.
7.4 MAINTENANCE FEES. COCC shall pay OSI on each anniversary
date of this agreement, annual maintenance fees at a rate of [**] of the
aggregate License Fees paid by COCC to OSI for the preceding year, excluding the
Down Payments. Annual maintenance fees will be recalculated each year based on
the annual balance of the aggregate License Fees paid. (Example: Year 3
maintenance fees = Year 2 License Fees x [**].) These maintenance fees may be
reduced by mutual agreement if COCC assumes additional support responsibilities
as set forth under Section 8.1 below. Further, subject to section 9.1 below, OSI
agrees to credit COCC with up to [**] of annual maintenance fees in the event
there shall be any mutually agreed upon development projects. Any maintenance
fee credit shall be negotiated at the time any development project is mutually
agreed upon and shall be credited to Maintenance Fees payable on the next
anniversary date of this Agreement. COCC shall only be eligible for such credit
after the Down Payments identified in Section 7.1 have been paid in full.
7.5 [**]. OSI represents and warrants that [**] being provided
hereunder are [**] under similar circumstances. If at any time OSI shall [**]
provided hereunder to COCC, [**].
8 SYSTEM SUPPORT.
8.1 SOFTWARE SUPPORT. Irrespective of the termination of this
Agreement, so long as COCC uses the System for any Customer, OSI shall be
obligated to provide ongoing maintenance support to COCC for the OSI Proprietary
Software and the OSI Interface Software. COCC agrees that it shall provide the
first line of product and technical help desk support to its Customers. The
first line of support shall include all of the day-to-day issues of
functionality, error correction and customer service. In the event that COCC
employees lack the requisite skills or knowledge to resolve an issue, OSI shall
provide telephone consulting services only
-9-
10
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
to COCC designated personnel to assist such personnel in the resolution of such
problems, relative to the System or Documentation. In no instance shall OSI
provide direct support to COCC's Customers, unless by mutual written agreement
executed by each of the parties hereto. Such OSI telephone consulting services
shall be provided seven (7) days per week, twenty-four (24) hours per day for
Priority A errors, as defined below, and during normal working hours for other
errors. OSI shall furnish the names and telephone numbers of its contact
personnel for both normal working hours and other times (e.g., holidays,
weekends, etc.). COCC shall provide the names and telephone numbers of the
designated COCC personnel assigned to work with OSI. COCC agrees to use
commercially reasonable efforts to minimize the number of support contacts that
it makes with OSI after the successful Conversion of the Pilot Institutions.
COCC also agrees to provide OSI with a quarterly report recording all calls made
to the COCC help desk, whether or not these calls were forwarded to OSI. After
the successful Conversion of the Pilot Institutions, any call made by COCC to
OSI that could have been reasonably resolved by COCC without OSI assistance or
that was made in direct response to a modification to the System by COCC shall
be chargeable to COCC as extraordinary support services at the rates set forth
in Schedule H.
8.2 SYSTEM ERRORS. OSI shall diligently work for the prompt
resolution of defects and errors in the System or correction of errors or
inconsistencies in the Documentation ("Correction"). Notwithstanding the
foregoing section 8.1, in case of a system-down condition (i.e. Priority Code
Emergency (A) as defined below) primarily attributable to OSI, COCC may utilize
and designate any means of communication for both the reporting of errors and
the correction thereof. OSI shall respond to and use commercially reasonable
efforts to complete correction of errors, defects and malfunctions in accordance
with the following schedule:
ERROR PRIORITY(1) RESPONSE(2) CLOSURE(3)
----------------- -------------- ---------------
(Calendar Days) (Calendar Days)
Emergency (A) [**] [**]
Critical (B) [**] [**]
Non-Critical (C) [**] [**]
(1) PRIORITY
CODES: A - Catastrophic System or module failures
that do not have a viable detour or
workaround available.
B - Problems that have been substantiated as a
serious inconvenience to users, including
any Priority A Error for which a viable
detour or workaround is available.
-10-
11
C - All other problems which the user can
avoid or detour for which there is no
urgency for a resolution.
(2) RESPONSE: Response consists of providing, as
appropriate, one or more of the following to
the COCC designated personnel requesting a
response: a workaround/detour, an existing
Correction, a new Correction against
reported product level only, an available
release, a release commitment for Priority B
and C, notification of a non-problem.
(3) CLOSURE: Closure consists of providing a final
Correction of the problem to the COCC
designated personnel requesting Correction,
including Enhancements to the System, and
revised or new Documentation as necessary.
8.3 PRIORITY "A" ERRORS. In the event OSI does not complete
Correction of any Priority A Error within the applicable times set forth above,
upon COCC's reasonable request, OSI shall furnish on-site maintenance support
personnel, at the designated site, who shall remain at the site and provide
support until the problem is corrected. In the event that the error is not due
primarily to an error, defect, malfunction, or breach of warranty regarding the
System or Documentation, COCC shall pay OSI at the rates set forth in Addendum 1
for time spent at the site and reimburse OSI for reasonable expenses incurred by
said personnel. In the event that the Priority A Error is due to an error in or
defect or malfunction of the System, OSI's liability shall be limited to the
cost of repair or replacement, or if repair or replacement is commercially
unavailable or unreasonable, to the Down Payments and aggregate License Fees
paid by COCC.
8.4 OPERATING SYSTEMS. OSI represents and Warrants that the
System can operate under Microsoft Windows NT and the UNIX operating systems.
OSI also represents and warrants, and COCC acknowledges, that the preferred
operating system for the System is Microsoft Windows NT. However, should it be
necessary for COCC to use the System under the UNIX operating system, OSI agrees
to assist COCC in making the System operational. If COCC's need for operating
under the UNIX operating system is due to the System's failure to perform in a
commercially reasonable manner, then OSI's assistance with moving all software
and data to the UNIX operating system will be at OSI's expense. If COCC chooses
to use the UNIX operating system for any other reason, COCC will pay OSI's
commercially reasonable current per diem rates for such assistance. Further, in
the event that OSI provides COCC with a separate agreement for the license of
operating systems in conjunction with the System, OSI agrees to pass all
warranties of the operating system's owner through to COCC.
-11-
12
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
9 PRODUCT DEVELOPMENT.
9.1 OSI'S OBLIGATIONS. OSI shall use reasonable commercial
efforts to maintain the System as competitive in its marketplace. Appropriate
representatives of both OSI and COCC shall meet on a quarterly basis to discuss
and review OSI and COCC product development plans and for COCC to provide input
based on competitive feature and function requirements. Both parties agree to
use their commercially reasonable efforts to achieve mutual agreement on the
specific features and phases of development. OSI shall credit COCC for
maintenance fees payable under section 7.3 above based on COCC's commitment to
develop features and functionality for the System that benefits Customers.
9.2 INTELLECTUAL PROPERTY RIGHTS. The parties agree that all
right, title and interest to all Enhancements and other derivative works made by
COCC in and to the System and Documentation and all inventions, copyrights,
trade secrets and other intellectual property rights therein shall vest in OSI;
provided, however, that COCC shall have the right to use such Enhancements
during the term of this Agreement and for so long as any Customer uses the
System. OSI retains all ownership rights in the System as originally delivered
to COCC as well as all rights in subsequent Enhancements made to the System by
OSI, whether or not delivered to COCC. All products, derivative works or other
intellectual property rights resulting from such development efforts shall be
the property of OSI regardless of the manner of finding or control of the
development resources, but shall not include software programs created by COCC
that are intended to operate as stand- alone software programs independently,
but which may interface with the OSI Proprietary Software and OSI Interface
Software.
10 THIRD PARTY PRODUCTS. Subject to limitations with the agreements
between COCC, OSI and third parties, COCC shall [**], including but not limited
to the Oracle seats, which are sold in conjunction with the System to support
COCC's Outsourcing Services. Such third party products are listed on Schedule F,
which may be amended by mutual written agreement from time to time.
11 ESCROW OF SOURCE CODE.
11.1 CONDITION PRECEDENT. As a condition precedent to this
Agreement, OSI agrees to add COCC as a named third party beneficiary on the OSI
escrow agreement ("Escrow Agreement") providing COCC with certain rights to the
source code for the OSI Proprietary Software and the OSI Interface Software
owned by OSI as set forth as Schedule E hereto and any Enhancements (the "Source
Code")
-12-
13
including without limitation the right to delivery by any escrow agent upon the
occurrence of any triggering event as set forth in section 11.2 hereof
("Triggering Event") of the Source Code. As a further condition precedent to
this Agreement, OSI shall deliver to COCC a copy of an executed Escrow Agreement
instructing any escrow agent party to such Escrow Agreement to deliver copies of
the Source Code to COCC upon the occurrence of any Triggering Event. The parties
acknowledge that COCC will already have Master Copies of the software subject to
the OSI escrow agreement. However, it is the parties' intent that in the event
the terms of the OSI escrow agreement are triggered, COCC shall have full access
and use of the source code maintained under the OSI escrow agreement, as well as
the continued ability to provide the System to its Customers under the License
granted in section 2 above.
11.2 TRIGGERING EVENTS.
Notwithstanding the terms of any escrow agreement between OSI and
an escrow company, the following shall be considered triggering events which
would allow COCC, as a third party beneficiary, access to and which would
require release of the escrowed software programs contained in the System upon
COCC's request:
11.2.1 OSI's voluntary or involuntary becoming or being
declared insolvent or bankrupt;
11.2.2 OSI's becoming the subject of, and failing to cause
its dismissal within sixty (60) days, any
proceedings relating to its liquidation, insolvency
or for the appointment of a receiver or similar
officer for it;
11.2.3 OSI's making an assignment for the benefit of all or
substantially all of its creditors;
11.2.4 OSI's entering into an agreement for the
composition, extension, or readjustment of all or
substantially all of its obligations;
11.2.5 OSI's failure to conduct business in the ordinary
course of business;
11.2.6 OSI's failure to provide COCC with additional Master
Copies of any software used in the System, upon
reasonable written request by COCC and sixty (60)
days written notice by COCC to request the software
from the escrow company, in the event that COCC's
access to additional Master Copies is commercially
necessary.
-13-
14
11.3 ESCROW OF SOURCE CODE. OSI shall at all times have the
Source Code in an escrow.
11.4 NOTICE OF TERMINATION OF ESCROW AGREEMENT. It shall be a
term of any Escrow Agreement that the escrow agent shall notify COCC and that
OSI shall notify COCC in the event that the Escrow Agreement is terminated for
any reason and in no event shall such Escrow Agreement be terminated without
providing COCC with 30 days prior written notification of such termination. Upon
such termination, OSI shall notify COCC of the new escrow agent and shall
provide COCC with an executed copy of the escrow agreement with such new escrow
agent. Such escrow agreement shall comply with this Section 11.
12 EMPLOYEES. During the term of this Agreement, each party will
refrain from seeking to hire or hiring the employees of the other and, for the
one year following termination of employment, terminated employees of the other
without the prior written consent of the other.
13 CONFIDENTIALITY.
13.1 CONFIDENTIAL INFORMATION. The parties further acknowledge
that in the course of performing their respective responsibilities under this
Agreement, each may be exposed to or acquire information which is proprietary to
or confidential to the other party or its clients, including computer programs,
software tools, protocols, system benchmarks, business and marketing plans,
product descriptions, development schedules, product positioning, choices of
product names and financial data. All such confidential and proprietary
information, in whatever form, are hereinafter collectively referred to as
"Confidential Information." The parties shall use their commercially reasonable
efforts to assist each other in identifying Confidential Information.
13.2 NON-DISCLOSURE. Except as otherwise permitted hereunder, the
parties agree to hold Confidential Information in strict confidence and not to
copy, reproduce, sell, assign, license, market, transfer, give or otherwise
disclose such information to third parties or to use such information for any
purposes whatsoever, without the express written permission of the other party
and to advise each of their employees, agents and representatives of their
obligations to keep such information confidential.
13.3 DUTY TO COOPERATE. The parties shall use their commercially
reasonable efforts to assist each other in identifying and preventing any
unauthorized use or disclosure of any Confidential Information. Without limiting
the foregoing, the parties shall use commercially reasonable efforts to
immediately advise each other in the event that either learns or has reason to
believe that any person who has had access to Confidential Information and has
violated or intends to violate the terms of
-14-
15
this provision. The parties agree to reasonably cooperate in seeking injunctive
relief against any such person.
13.4 EXCLUSIONS. "Confidential Information" shall not include
information that: (i) is, as of the time of its disclosure, or thereafter
becomes part of the public domain through a source other than the receiving
party; (ii) was known to the receiving party as of the time of its disclosure;
(iii) is subsequently learned from a third party not under a confidentiality
obligation to the providing party; or (iv) is required to be disclosed pursuant
to court order or government authority; provided, however, the receiving party
shall provide notice to the other party sufficiently in advance of such
disclosure to allow such other party to obtain a protective order if it so
desires.
14 WARRANTIES.
14.1 OWNERSHIP. OSI represents and warrants that it has the sole
ownership of and/or the right to license and sub-license the System, including
the OSI Proprietary Software and the OSI Interface Software as contemplated by
this Agreement and has the full power to grant the rights granted herein without
the consent of any other person or entity. OSI represents and warrants that the
System does not infringe any patent, copyright, or trademark or misappropriates
a trade secret or infringes any intellectual property rights of any third party.
14.2 PERFORMANCE. OSI represents, warrants and covenants that the
media on which the System, including the OSI Proprietary Software and OSI
Interface Software is recorded and delivered to COCC hereunder is free from
defects in material and workmanship under normal use and service for a period of
ninety (90) days from delivery. OSI agrees to replace any defective media upon
return to OSI. OSI represents and warrants that it has taken all steps necessary
to test the OSI Proprietary Software and the OSI Interface Software for
Disabling Code (as defined herein) and to eliminate Disabling Code from the OSI
Proprietary Software and the OSI Interface Software. OSI warrants that the OSI
Proprietary Software and the OSI Interface Software will be free of Disabling
Code as of the date of delivery by OSI to COCC. COCC warrants that any
Enhancements made to the System and delivered to OSI shall be free of Disabling
Code as of the date of delivery by COCC to OSI.
14.3 DISABLING CODE. Disabling Code shall mean computer
instructions that:
14.3.1 Alter, destroy or inhibit the OSI Proprietary
Software, OSI Interface Software or COCC's
processing environment, including without
limitation, other programs, data storage, computer
libraries, and computer and communications
equipment;
-15-
16
14.3.2 Are without functional purpose, self-replicate
without manual intervention; or
14.3.3 Purport to perform a meaningful function but which
actually perform either a destructive or harmful
function, or perform no meaningful function.
14.4 FUTURE MODIFICATIONS AND ENHANCEMENTS. OSI will continue to
take such steps with respect to future modifications and Enhancements to keep
the same and the OSI Proprietary Software and OSI Interface Software free of
Disabling Code. OSI agrees that it will maintain a master copy of the OSI
Proprietary Software and the OSI Interface Software and all modifications and
Enhancements made by OSI thereto, and will take such steps as are necessary to
keep the same free of Disabling Code.
14.5 PERFORMANCE. OSI represents that for a period of ninety (90)
days after the date of execution of this Agreement and during any period during
which COCC is receiving support in accordance with the terms and conditions
hereof, the OSI Proprietary Software and the OSI Interface Software shall:
14.5.1 Function and perform substantially in accordance
with the Documentation and specifications;
14.5.2 Operate on the Designated Hardware consistent with
the specifications and Documentation; and
14.5.3 Process COCC's Customer's data in accordance with
the minimum data processing standards promulgated by
federal banking agencies which regulate COCC or the
Customers.
If COCC discovers that either the OSI Proprietary Software or OSI Interface
Software does not meet the criteria set forth above, COCC shall notify OSI and
OSI shall promptly take all commercially reasonable steps necessary to bring the
OSI Proprietary Software or OSI Interface Software into compliance with the
criteria set forth above.
14.6 YEAR 2000 COMPLIANCE. OSI represents and warrants that the
occurrence in or use by the Systems by COCC and the Customers of dates on or
after January 1, 2000 ("Millennial Dates") or which call on or require a
calendar function including, without limitation, any function indexed to the CPU
block, and any function providing specific dates or days shall not adversely
affect its performance with respect to date-dependent data, computations,
output, or other functions,
-16-
17
including, but not limited, calculating, comparing, and sequencing and that the
OSI System utilized by COCC and the Customers shall record, create, store,
process, output information related to or including Millennial Dates, provide
and, where appropriate, insert Millennial Dates and calculations for Millennial
Dates without error or omissions and at no additional cost or expense to COCC or
the Customers. The System (i) has no lesser functionality with respect to
records containing dates both, or either, before and/or after January 1, 2000
than heretofore with respect to dates prior to January 1, 2000, (ii) is
interoperable with other software used by COCC which may deliver records to,
receive records from or otherwise interact with the System in the course of
COCC's data processing, and (iii) is in compliance with all appropriate
governmental regulatory agencies' requirements. Upon COCC's written request
given after October 1, 1998, COCC, at its own cost, may retain the services of a
third party auditor to review and evaluate, at a time mutually agreed, the
System for the sole purpose of determining whether the System is able to perform
according to the representations in this Section 14.6.
14.7 COMPATIBILITY WITH DESIGNATED HARDWARE. The System, and each
module and function thereof, will be capable of operating in a commercially
reasonable manner on the Designated Hardware and operating environment specified
in Schedules B and C.
14.8 DISCLAIMER. THESE EXPRESS WARRANTIES TAKE THE PLACE OF AND
SUPERSEDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED AND WHETHER OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. EXCEPT AS
EXPRESSLY PROVIDED HEREIN, OSI DOES NOT WARRANT, GUARANTEE, OR MAKE ANY
REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE OSI
PROPRIETARY SOFTWARE, OSI INTERFACE SOFTWARE OR DOCUMENTATION.
14.9 LIMITATION OF LIABILITY. OSI SHALL NOT BE LIABLE TO COCC FOR
ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT
OR IN ANY WAY RELATED TO THIS AGREEMENT, OR PERSONAL INJURY OR DAMAGE OR
DESTRUCTION OF REAL OR TANGIBLE PERSONAL PROPERTY, EVEN IF OSI KNOWS, SHOULD
HAVE KNOWN, OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR
DAMAGES CAUSED BY OSI'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
COCC SHALL NOT BE LIABLE TO OSI FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF THIS AGREEMENT OR IN ANY WAY RELATED TO THIS AGREEMENT,
OR PERSONAL INJURY OR DAMAGE OR DESTRUCTION OF REAL OR TANGIBLE PERSONAL
PROPERTY, EVEN IF COCC KNOWS, SHOULD HAVE KNOWN, OR HAS BEEN
-17-
18
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR DAMAGES CAUSED BY COCC'S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
14.10 THIRD PARTY SOFTWARE. COCC understands that OSI is not
responsible for, will have no liability for, and does not warrant hardware,
software, or other items or any services provided by any persons other than OSI,
provided however, OSI agrees to pass through any warranties obtained from third
parties which relate to this Agreement.
15 INDEMNIFICATION.
15.1 INDEMNIFICATION BY OSI. OSI shall defend, indemnify and hold
COCC, the Customers, and each of their officers, directors, agents and employees
harmless from and against any and all claims, suits, damages, liabilities, costs
and expenses (including reasonable attorney's fees) arising out of or resulting
from any claim that COCC's use of the System infringes a United States patent,
copyright, or trademark or misappropriates a trade secret or infringes any other
intellectual property rights of any third party, provided OSI is:
15.1.1 promptly notified of any and all threats, claims and
proceedings related thereto,
15.1.2 given reasonable assistance by COCC in OSI's defense
of the claim (at OSI's sole cost and expense), and
15.1.3 given the opportunity to assume sole control over
the defense and all negotiations for a settlement or
compromise.
15.1.4 OSI shall not, however, enter into any settlement
without COCC's prior written consent, which shall
not be unreasonably withheld, if such settlement
impairs any material right of COCC under the
Agreement. COCC may participate, at its own expense,
in any settlement discussions directly or through
counsel of its choice.
15.2 COCC'S RIGHT TO DEFEND. Notwithstanding anything to the
contrary in Section 15.1 above, COCC shall have the right to defend and settle,
at OSI's expense, against any such infringement or misappropriation claim in the
event that OSI fails to assume or reasonably pursue such defense or reasonably
protect the rights of COCC or its Customers as specified in this Agreement. If
COCC or its Customers are enjoined from using the System or any portion thereof
by any court order, and OSI cannot provide COCC with a non-infringing substitute
or effect the
-18-
19
provisions of Section 15.3 hereof, COCC may terminate this Agreement in its
entirety and OSI shall return to COCC a portion of the License Fee required to
purchase or obtain a non-infringing substitute for the System or any portion
thereof. OSI shall remain liable for and indemnify COCC for any and all
court-ordered damages awarded to any third party because of such infringement or
misappropriation.
15.3 OSI'S RIGHTS UPON INFRINGEMENT CLAIM BY THIRD PARTIES. In
the event that the System, or any portion thereof becomes the subject of a claim
of infringement or misappropriation, OSI may, at its expense, take any of the
following steps so that: (1) COCC's use is not subject to any claim of
infringement or misappropriation, and (2) COCC is provided with functionally
equivalent software to the reasonable satisfaction of COCC, provided that COCC's
use of the System conforms with the provisions of the Agreement:
15.3.1 At OSI's expense, procure for COCC the right to
continue using the OSI Proprietary Software or
Interface Software; or
15.3.2 Replace or modify the infringing portion of the
System.
15.4 LIMITATIONS. OSI shall not be liable under this Section 15
if OSI (a) has notified COCC of a potential infringement or misappropriation and
(b) has provided COCC with a new version of the System and Documentation, such
that COCC has a reasonable amount of time to install the new version for its
Customers, which avoids the infringement or misappropriation. Further, the
foregoing indemnification obligations of OSI do not apply with respect to OSI's
software and any other products or portions or components thereof:
15.4.1 which are not the latest available release supplied
by OSI to COCC with respect to claims which arise
from alleged infringement occurring after such
release has been supplied to COCC;
15.4.2 which are modified by COCC after shipment by OSI, if
the alleged infringement relates to such
modification, unless OSI has consented to the
modification in writing, or such modification is
otherwise authorized, permitted or provided for
under this Agreement;
15.4.3 which are combined by COCC with other products,
processes, hardware or materials where the alleged
infringement relates to such combination, unless OSI
has consented in writing to such combination or such
-19-
20
combination is otherwise authorized, permitted or
provided for under this Agreement; or
15.4.4 which is third party software as defined in this
Agreement.
15.5 DISCLAIMER. THE FOREGOING STATES THE ENTIRE LIABILITY OF OSI
WITH RESPECT TO INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADEMARKS OR
MISAPPROPRIATION OF TRADE SECRETS BY THE OSI PROPRIETARY SOFTWARE OR OSI
INTERFACE SOFTWARE OR ANY PARTS THEREOF. EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, NO COSTS OR EXPENSES SHALL BE INCURRED FOR THE ACCOUNT OF OSI BY COCC
OR ITS AGENTS WITHOUT THE PRIOR WRITTEN CONSENT OF OSI.
15.6 INDEMNIFICATION PROCEDURES. The OSI indemnification
obligation under the foregoing subparagraph 15.1 shall not apply:
15.6.1 to the extent that the System was modified by COCC
after shipment by OSI, if the alleged infringement
relates to such modification, unless OSI has
consented to the modification in writing, or such
modification is otherwise authorized, permitted or
provided for under this Agreement COCC's
modifications to the System, and the modification is
the sole cause of an infringement or
misappropriation claim; or
15.6.2 if COCC fails to promptly notify OSI of any third
party claim of which COCC has knowledge and gives
OSI the initial opportunity to control the response
thereto and the defense thereof, including without
limitation any agreement relating to the settlement
thereof, subject to section 15.2 above. COCC's
failure to promptly give notice shall affect OSI's
indemnification obligation only to the extent OSI's
rights are materially prejudiced by such failure.
16 TERMINATION.
16.1 TERM. This Agreement shall commence as of the Effective Date
and continue indefinitely unless terminated in accordance this Agreement.
16.2 TERMINATION CONDITIONS. This Agreement shall terminate upon:
16.2.1 the mutual written agreement of the parties to
terminate this Agreement;
-20-
21
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
16.2.2 a party failing to cure its material breach within
ninety (90) days of receipt of notice of such
breach, and notice from the nonbreaching party to
the breaching party of its intent to terminate this
Agreement as of the date set forth in such notice;
16.2.3 a party (a) becoming or being declared insolvent or
bankrupt, (b) becoming the subject of; and failing
to cause its dismissal within 180 days, any
proceedings relating to its liquidation, insolvency
or for the appointment of a receiver or similar
officer for it, (c) making an assignment for the
benefit of all or substantially all of its
creditors, or (d) entering into an agreement for the
composition, extension, or readjustment of all or
substantially all of its obligations, and notice
from the other party of its intent to terminate this
Agreement as of the date set forth in such notice;
16.2.4 written notice delivered to COCC by OSI within 180
days of a Change of Control of COCC;
16.2.5 written notice delivered to OSI by COCC within 180
days of a Change of Control of OSI. Any such
termination under this Section 16.2.5 shall not
relieve COCC of any ongoing or outstanding payment
obligations for License Fees or Maintenance Fees due
OSI under the terms of this Agreement.
16.3 This Agreement shall terminate in its entirety if the System
fails to perform to commercially reasonable standards during or within [**] from
the Conversion Date at all [**] Pilot Institutions and:
16.3.1 COCC promptly provides OSI with written notice of
the failure and makes commercially reasonable
efforts to assist OSI in remedying the failure;
16.3.2 The failure cannot be corrected by OSI within six
(6) months after written notification by COCC of the
failure;
-21-
22
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
16.3.3 The failure materially effects the performance,
function, use, or purpose of the System;
16.3.4 Upon any termination, COCC returns all OSI software
and Documentation, including all components of the
System, OSI Proprietary Software and OSI Interface
Software, and all Enhancements to the System,
including all copies thereof; and
16.3.5 Upon termination under this Section 16.3 and subject
to subparagraph 16.3.4 above, COCC shall have no
further obligation to pay any license fees or
maintenance fees. However, OSI shall retain the
original [**] down payment, but shall not be
entitled to the additional [**] payable upon
successful Conversion of the Pilot Institutions.
17 DISPUTE RESOLUTION.
17.1 Any controversy or claim arising out of or relating to this
Agreement or the breach thereof shall be settled by arbitration before three (3)
arbitrators in accordance with the Rules of the American Arbitration Association
("AAA") then in effect, and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction. Any such arbitration shall be
conducted in the city nearest COCC's Regional Outsourcing Data Center having an
AAA regional office. The arbitrators shall be selected from a panel of persons
having experience with and knowledge of electronic computers and the computer
business, and at least one of the arbitrators selected shall be an attorney.
17.2 The arbitrators shall have no authority to award punitive or
exemplary damages. The arbitrators must make their ruling, finding or award in
conformity with the terms and conditions of this Agreement.
17.3 Either party, before or during any arbitration, may apply to
a court having jurisdiction for a temporary restraining order or preliminary or
permanent injunction where such relief is necessary to protect its interests.
17.4 Neither party nor the arbitrators may disclose the existence
or results of any arbitration hereunder without the prior written consent of
both parties. However, an action under section 17.3 above shall not require the
consent of the other party.
-22-
23
17.5 Prior to initiation of arbitration or any form of legal or
equitable proceeding permitted by this agreement, the aggrieved party shall give
the other party at least thirty (30) days prior written notice describing the
claim and amount as to which it intends to initiate action, provided that
nothing contained herein shall prohibit either party from immediately seeking
equitable relief to enforce any provision of this Agreement from a court of
competent jurisdiction under such circumstances as that party's interests
hereunder and its property will be otherwise irreparably harmed.
18 GENERAL.
18.1 NOTICES. Any notice provided pursuant to this Agreement
shall be in writing and shall be deemed given (i) if by hand delivery, upon
receipt thereof; (ii) if mailed, three (3) days after deposit in the United
States mails, postage prepaid, certified mail return receipt requested, or (iii)
if sent via overnight courier with receipt.
If to COCC: Xxxx Xxxxxxxx, President
COCC, Inc.
000 Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx
Xxxx, XX 00000
With copies to:
General Counsel
[INFORMATION NEEDED]
If to OSI: Xxxxxxx Xxxxxxxx, President
Open Solutions, Inc.
000 Xxxxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000.
With copies to:
Xxxxx Xxxxx, Esq.
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
18.2 BINDING AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the parties, their successors and permitted assigns.
-23-
24
18.3 GOVERNING LAW AND VENUE. This Agreement and performance
hereunder shall be governed by the laws of the State of Connecticut without
regard to conflicts of law.
18.4 FORCE MAJEURE. Neither COCC nor OSI shall be liable to the
other for delays in the performance of or completion of this Agreement if such
delay is caused by strikes, riots, wars, government regulations imposed after
the fact, acts of God, fire, flood or other similar causes beyond its control.
18.5 SEVERABILITY. If any provision of this Agreement shall be
held to be invalid, illegal or unenforceable by a court of competent
jurisdiction, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
18.6 REMEDIES. The rights and remedies of the parties set forth
in this Agreement are not exclusive and are in addition to any other rights and
remedies available to them in law or in equity.
18.7 NO WAIVER. The waiver or failure of any party to exercise
any right provided for herein shall not be deemed a waiver of any further right
hereunder.
18.8 INDEPENDENT CONTRACTORS. The parties shall at all times be
independent contractors with respect to each other in carrying out this
Agreement.
18.9 HEADINGS. Headings used in this Agreement are for reference
only and shall not be deemed a part of this Agreement.
18.10 SURVIVAL. In addition to OSI's obligations under Section 8,
and COCC's payment obligations under section 7 and rights to obtain the source
code from escrow under Section 11, the provisions of this Agreement relating to
warranties, indemnification, confidentiality, choice of law and dispute
resolution shall survive the termination of this Agreement.
18.11 TAXES. The System licensed hereunder to COCC is intended for
sub-license to Customers and therefore should be exempt from sales, use and
other-similar taxes. However, if such tax should be imposed on OSI, COCC shall
either bear such tax by a direct payment to the taxing authority or shall
reimburse OSI for such tax. COCC shall be responsible for any applicable customs
and duties related to its sub-licensing of the System.
18.12 ENTIRE AGREEMENT. This Agreement constitutes the complete
understanding and agreement of the parties with respect to the subject matter
hereof and supersedes and merges any prior understandings, statements,
negotiations
-24-
25
between the parties, whether oral or otherwise. This Agreement may not be
modified except by a writing subscribed to by both parties.
18.13 AMENDMENT. The parties hereto may cause this Agreement to be
amended at any time by execution of an instrument in writing on behalf of each
of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives as of the date first set forth above.
Open Solutions Inc. Connecticut On-line Computer Center, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxxxx
------------------------- -------------------------------------
Xxxxxxx X. Xxxxxxxx Xxxx Xxxxxxxx
President & CEO President & CEO
-25-
26
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE A
OSI's "The Complete Banking Solution" Interface Listing All prices listed below
will be subject to a [**] discount for COCC. Any Interface listed below or later
developed by OSI may be purchased by COCC in a quantity that significantly
decreases the overall costs of such interface per institution. The determination
of such pricing shall be by mutual agreement between OSI and COCC.
Voice Response Units [**]
Edify
Regency
InterVoice
General Ledger Systems N/C Asset/Liability [**]
Financial Technology Inc. Financial Technology Inc.
Interactive Planning Systems Interactive Planning Systems
Item Processing [**] Imaging Systems [**]
NCR Proprietary SoftChec
SoftChec
Unisys Proprietary
Loan Origination Systems [**]
Sound Software
CFI Laser Pro
Contour
Uniform (Specialized Data Systems)
Collections Systems [**]
Intelligent Banking Systems
ATM
Positive Balance File [**]
Mellon
EDS
Norwest
Electronic Forms [**] per branch [**] per pager setup
Banker Systems Inc.
Compliance Systems, Inc.
Universal Pensions, Inc.
Banking Spectrum, Inc.
COLD Systems [**]
Optech
Macrosoft
Page 1 of 1
27
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE B
SERVER CPU, MEMORY AND DISK ESTIMATES
[**]
Page 1 of 3
28
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Estimated Hardware/Software for 200,000 Accounts
================================================================================
DP HARDWARE
================================================================================
DataBase Server Pentium Pro 200, Four Processor, 1GB RAM, (10) [**]
9GB Dr. RAID 5, DC ROM, dual power, supplies &
fans, DAT Backup.
DataBase Remote Site Backup Server, (2) Pentium/166, 256M RAM, [**]
(9) 9GB Dr., CD ROM, DAT Backup
WS Pentium Pro 200, 256K Cache, 80M RAM, 2GB SCSI Dr., EISA [**]
NIC, 14" SVGA Monitor, 4GB DAT, CD ROM, System Admin.,
& Batch Workstation
WS Pentium Pro 200, 256K Cache, 48M RAM, 1GB SCSI Dr., EISA [**]
NIC, 14" SVGA Monitor, CD ROM, Network Management Server
UPS
UPS
Ethernet Hub
================================================================================
DP SOFTWARE
================================================================================
NT Server
Data Replication Software
Oracle RDBMS NT/seat (qty = 85% of total w/s qty)
SQR Development System
Forest & Trees
Tape Backup NT
SQL Server
Powerchute
Anti-Virus Software InocLan
================================================================================
BRANCH OPERATIONS HARDWARE
================================================================================
Br. File Server Pent./166, 48M RAM, CD ROM, NIC PCI, EVGA
Color, (2) 2.1GB Xx.
XX Xxxx./200, 256 K Cache, 80M RAM, 2GB SCSI Dr., 4GB DAT,
NIC PCI, EVGA Color, Br. Administrative Workstation
& Network Manager.
UPS
DWA Printer Server., Pentium 133, 256K Cache, 32M RAM., 1GB
IDE Dr., ISA NIC, 14" SVGA Monitor
Remote Access Modem 28.8kbps
Equipment Racks
CSU DSU Includes Cable
Router
Intelligent Ethernet Hub
Page 2 of 3
29
Expansion Hub
WS Pentium 133, 256K Cache, 32M RAM, 1GB IDE Dr., ISA NIC,
14" SVGA Monitor
UPS for DWA
Flatbed Color Scanner (1-2/branch)
Passbook Printer
Validation & Receipt Printer
MICR Printer, 12PPM, 5 Input Drawers, Network Card
================================================================================
BRANCH OPERATIONS SOFTWARE
================================================================================
Windows NT
Powerchute S/W (for graceful shutdown of servers)
MS NT Workstations
DWA Printer Manager
System Management SW
SMS Client License (20 User)
Tape Backup NT
Anti-Virus Software InocuLan
SQR Report Generator
Page 3 of 3
30
SCHEDULE C
OSI represents and warrants that the System can operate under Microsoft Windows
NT and the UNIX operating systems. OSI also represents and COCC acknowledges
that the preferred operating system for the System is Microsoft windows NT.
However, should it become necessary for COCC to utilize the System under the
UNIX operating system, OSI agrees to assist COCC in doing so. Should the need to
operate under the UNIX operating system be due to the System's failure to
perform in a commercially reasonable manner, then OSI's assistance with the move
to the UNIX operating system will be at OSI's expense. If COCC chooses to
utilize the UNIX operating system for any reason other, the cost of OSI's
assistance will be paid by COCC at the then current per diem rates for such
services.
Page 1 of 1
31
SCHEDULE D
OSI Current Documentation
[intentionally blank]
Page 1 of 1
32
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE E
OSI PROPRIETARY SOFTWARE
A. OSI Proprietary SOFTWARE
"The Complete Banking Solution" Modules:
Customer Service Representative System Operations
Teller Bank Operations
Loan Monetary Branch Operations
Loan CSR Product Manager
Loan Utilities External File Manager
Loan Investor Batch Manager
Loan Escrow Batch Server
Card Manager G/L Interface
OSI Data Model IRS Manager
B. DOCUMENTATION
[**]
C. Designated Hardware and Operating Systems
The System operates on Intel based servers and personal computers utilizing
Microsoft Windows NT as the operating system and the Oracle Relational Database
Management System.
Page 1 of 1
33
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE F
Third Party Software ("TPS")
Oracle Relational DataBase Management System Release 7.3
Nexus All Printer/Device Class Service (Passbook & Validation & Receipt
Printers)
SQRIBE Software SQR Production Reporting Tool
Eventus Software SQL Studio Data Access Tool
Jetform Software Forms Generation Tool for use with Electronic Forms
Octopus Automatic Switch Over Software Disaster Recovery Tool
ORACLE PRICING:
OSI and Oracle will negotiate the best possible pricing of the Oracle RDBMS
for use by COCC. In no event will the cost of Oracle RDBMS to COCC exceed [**]
of the cost of the OSI system as a whole.
Page 1 of 1
34
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE G
Aggregate Number of COCC Customers on Effective Date of Agreement = [**]
Page 1 of 1
35
SCHEDULE H
OSI Current Support Service Rates
[intentionally blank]
Page 1 of 1
