EXHIBIT 10.22
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
SOFTWARE DEVELOPMENT AGREEMENT
THIS SOFTWARE DEVELOPMENT AGREEMENT ("Agreement") is entered into as of July 1,
2003 (the "Effective Date"), by and between V-Tek Systems Corporation, a
California corporation having a principal office located at 0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxx Xxx, Xxxxxxxxxx 00000 ("Contractor"), and The First Marblehead
Corporation, a Delaware corporation, having a principal office located at 00
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Client").
WITNESSETH:
WHEREAS, Contractor has expertise in designing, developing and
implementing student loan origination software systems;
WHEREAS, Client desires to build and implement a student loan origination
software system known as the "GATE Universal System" (the "System"); and
WHEREAS, Contractor desires to build and implement the System and in
connection therewith has submitted a Revised GATE Universal Process Proposal
dated April 17, 2002, a Revised GATE Universal Process Proposal Addendum dated
September 26, 2002, a GATE Student - SSN Authentication Proposal dated November
7, 2002, and a GATE Universal Additional Data Requirements proposal dated
February 27, 2003 (collectively referred to herein as the "PROPOSALS"), copies
of which are attached hereto as EXHIBIT A.1 AND A.4, respectively;
WHEREAS, Client desires to engage Contractor to provide the software
development services described in the Proposals in accordance with the terms and
conditions contained herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS
1.1 SPECIFIC WORDS OR PHRASES. For purposes of this Agreement, each word or
phrase listed below has the meaning designated. Other words or phrases used in
this Agreement may be defined in the context in which they are used and shall
have the respective meaning there designated.
"AFFILIATE" means and includes any entity that directly or indirectly controls,
is controlled by, or is under common control with Client, where "control" means
either: (i) the power to direct (or cause the direction of) the management and
policies of an entity, whether through ownership of voting securities, through
contract or otherwise, or (ii) ownership of at least twenty percent (20%) of the
voting stock, shares or interests of an entity. An entity that otherwise
qualifies under this definition will be included within the meaning of
"Affiliate" even though it qualifies after the execution of this Agreement.
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"AGREEMENT" means this Agreement (sometimes referred to as "Agreement"),
together with the schedules, exhibits, and other appendices, attached hereto or
incorporated herein by reference.
"CLIENT" means, for the general purposes of the Agreement, the entity referenced
above as "Client".
"CONTRACTOR" means the entity referenced above as "Contractor".
"CONFIDENTIAL INFORMATION" has the meaning designated in Section 8.
"DELIVERABLE" or "DELIVERABLES" means and includes the services and Work Product
described and set forth in the Proposals and Specifications that are to be
provided by Contractor with respect to the System.
"GATE UNIVERSAL SYSTEM" OR "SYSTEM" means the student loan origination software
system as described and set forth in the Proposals and Specifications.
"INTELLECTUAL PROPERTY RIGHTS" shall mean all patents and patent applications,
trade marks (whether registered or unregistered and including any goodwill
acquired in such trade marks), service marks, trade names, business names,
internet domain names, e-mail address names, copyrights (including rights in
computer software), computer source code, computer object code, moral rights,
database rights, design rights, rights in know-how, rights in confidential
information, rights in inventions (whether patentable or not), trade secrets and
all other proprietary rights therein or relating thereto (whether registered or
unregistered and including any form of application for any of the foregoing, and
including all extensions and renewals thereof, together with all copyright
registrations obtained therefor, and any renewals or extensions of such
copyright registrations, and together with all rights to xxx and recover for any
past infringements of any of the copyrights), and all other equivalent or
similar rights which may subsist anywhere in the world.
"PERSONNEL" means a party's directors, officers, employees, agents, contractors
and subcontractors.
"SPECIFICATIONS" means the description of functional, technical, design and
performance characteristics of the System contained in the Specification
Documents attached hereto as EXHIBIT B, as such may be modified from time to
time upon mutual agreement of the parties in writing.
"WORK PRODUCT" has the meaning designated in Section 9.1
1.2 COMMON WORDS. The following words shall be interpreted as designated: (i)
"or" connotes any combination of all or any of the items listed; (ii) where
"including" is used to refer to an example or begins a list of items, such
example or items shall not be exclusive; and, (iii) "specified" requires that an
express statement is contained in the relevant document.
2. DEVELOPMENT SERVICES
2.1 SCOPE OF SERVICES. Client hereby engages Contractor, and Contractor
hereby accepts such engagement, to build and implement the System. Without
limiting the foregoing, Contractor's services shall include (i) delivery to
Client of the Deliverables; and (ii) to the extent expressly provided for in the
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Proposals and in this Agreement, design, development, implementation, testing
and delivery of all application modules described in the Proposals and all
documentation, specifications, source code, object code, source files, and flow
charts relating thereto.
2.2 CHANGE ORDERS. At any time (and from time to time) during the term of
this Agreement, Client may request modification(s) to the Deliverables. As soon
as practicable following any such request, the parties will discuss the
feasibility of the requested modification(s) and the impact on the time
schedules and costs specified in this Agreement. The Deliverables may only be
modified by a written change order specifically describing the modifications
that has been duly executed on behalf of the parties to be bound thereby.
Contractor is not obligated to agree to changes to the Deliverables unless such
changes and the increased costs and changes to time schedules are acceptable to
Contractor.
3. ACCEPTANCE TESTING
Contractor shall develop, implement and test the System in accordance with the
Acceptance Test Plan set forth in EXHIBIT C attached hereto (the "ACCEPTANCE
TEST PLAN"), as such may be modified upon mutual agreement of the parties in
writing. On or before acceptance testing, Contractor shall provide Client with
all appropriate documentation for the System in accordance with this Agreement.
4. TRAINING
As part of User Acceptance Testing, Contractor will provide Client (including
AES and PHEAA) with training for up to two days at Contractor's site in the use
of the System at a time or times reasonably agreeable to both parties at no
additional charge. Such training shall be performed by qualified Personnel of
Contractor who are trained on the System.
5. MAINTENANCE SUPPORT
Following the Warranty Period, unless otherwise agreed to by the parties,
Contractor shall provide software maintenance and support for the System on an
as needed basis as requested by Client at Contractor's then current hourly
rates.
6. FEES, EXPENSES AND INVOICING
6.1 FEES. Client agrees to pay Contractor the total fixed price amount (i)
set forth in EXHIBIT D attached hereto, and (ii) in accordance with the payment
schedule set forth in EXHIBIT D.
6.2 INVOICING. Contractor shall submit itemized invoices for the Deliverables
and approved reimbursable expenses. Each properly submitted invoice will be
payable within thirty (30) days after its receipt by Client. Client will be
liable for interest at the rate of 10% per annum on any undisputed amounts that
are not paid by the due date.
7. WARRANTY
7.1 CONFORMITY WITH SPECIFICATIONS. Contractor hereby warrants and represents
(the "WARRANTY") that the Deliverables provided hereunder will perform in
substantial conformity with the Specifications
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for a period of ninety (90) days after the date of Final Acceptance as defined
in the Acceptance Plan (the "WARRANTY PERIOD"). In the event of a breach of the
Warranty, Contractor will promptly repair or replace any Deliverable or
component thereof at no charge. Contractor shall have no Warranty obligations,
however, if the Deliverables were changed or modified by Client or any third
party (unless such modifications were approved by Contractor) or if the
Deliverables are not operating on equipment or a system as specified in the
Specifications or approved by Contractor.
7.2 NON-INFRINGEMENT. Contractor further warrants and represents that (i)
neither the Deliverables nor any elements thereof infringe any patent, copyright
or other intellectual property right of any third party, and (ii) except for
third party licenses as specified in the Proposals, Contractor possesses all
rights, title and interests in the Deliverables necessary to enter into this
Agreement and to grant the rights granted to Client hereunder free and clear of
all liens, encumbrances, claims or restrictions. The warranty and representation
of the preceding sentence shall not apply, however, with respect to any
infringement claims that would not have arisen but for (or to the extent of)
materials, requirements, concepts, and all other items provided by Client to the
extent same are incorporated in the Deliverables.
In case the Deliverables, or any part thereof is held to constitute an
infringement and its use is enjoined, Contractor shall, at its own expense and
at its option, either procure for Client the right to continue to use or, if
applicable, replace such Deliverable with noninfringing program or documentation
of equivalent function and performance, or modify them so they become
noninfringing without detracting from function or performance. Notwithstanding
the forgoing, Contractor shall have no responsibility for claims arising from
(i) modifications of the Deliverable made by Client or any person or entity
other than Contractor if such claim would not have arisen but for such
modifications, or (ii) combination or use of the Deliverable in a manner not
provided for in the documentation that is part of the Deliverable in question if
such claim would not have arisen but for such combination or use.
Client warrants and represents that the ideas, concepts, materials and
requirements and all information relating thereto conveyed to Contractor and
incorporated into the Deliverables (collectively, the "CLIENT CONCEPTS"), do not
infringe any patent, copyright or other proprietary right of any third party,
and (ii) Client possesses all rights, title and interests in the Client Concepts
and to allow for the incorporation of the Client Concepts into the Deliverables
free and clear of all liens, encumbrances, claims or restrictions.
7.3 BREACH. In the event of a breach of the Warranty which occurs during the
Warranty Period, Contractor shall be obligated to cure such breach within thirty
(30) days after notice from Client and provided such notice describes the breach
with reasonable detail (hereinafter collectively referred to as a "Breach").
7.4 DISCLAIMER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET
FORTH IN THIS AGREEMENT, CONTRACTOR DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. CONFIDENTIAL INFORMATION
8.1 CONTRACTOR'S "CONFIDENTIAL INFORMATION" includes all tangible and
intangible proprietary information or materials furnished by Contractor that are
expressly identified or marked by Contractor as
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"Confidential" (collectively, the Contractor's "Confidential Information"). In
the event Contractor intends to supply Confidential Information for use in
connection with this Agreement (for example, as part of a Deliverable),
Contractor will provide Client with a written summary of such Confidential
Information prior to Contractor's disclosure thereof to Client (although the
failure to provide such written summary shall not adversely affect Contractor's
rights in such Confidential Information).
8.2 CLIENT'S "CONFIDENTIAL INFORMATION" includes all tangible or intangible
information and materials, in any form or medium (and without regard to whether
the information is owned by Client or by a third party), whether furnished or
disclosed to Contractor by Client, or otherwise obtained or accessed by
Contractor from Client, that satisfies at least one of the following criteria:
8.2.1 Information related to Client's or an Affiliates' business, trade
secrets, customers (including identities, characteristics and
activities), business plans, strategies, forecasts or forecast
assumptions, operations, methods of doing business, records, finances,
assets, technology (including software, data bases, data processing or
communications networking systems), data or information that reveals
research, technology, practices, procedures, processes, methodologies,
know how, or other systems or controls by which Client's or an
Affiliate's existing or future products, services, applications and
methods of operations or doing business are developed, conducted or
operated, and all information or materials derived therefrom or based
thereon; or
8.2.2 Written information or materials designated or identified as
confidential by Client, whether by letter or by an appropriate
proprietary stamp or legend, prior to or at the time such information is
disclosed by Client to Contractor.
8.3 DUTY OF CARE. The party receiving ("receiving party") Confidential
Information of the other party ("disclosing party") will exercise at least the
same degree of care with respect to the disclosing party's Confidential
Information that the receiving party exercises to protect its own Confidential
Information; and, at a minimum, the receiving party will maintain adequate
security measures to safeguard the disclosing party's Confidential Information
from unauthorized disclosure, access, use and misappropriation. Without limiting
the generality of the foregoing, the receiving party will only use or reproduce
the disclosing party's Confidential Information to the extent necessary to
enable the receiving party to fulfill its obligations under this Agreement, or
in the case of Client, to exercise its rights as contemplated by this Agreement.
In addition, the receiving party will disclose the disclosing party's
Confidential Information only to those of the receiving party's Personnel who
have a "need to know" such Confidential Information (and only to the extent
necessary) in order to fulfill the purposes contemplated by the Agreement;
provided such Personnel have been advised of the receiving party's
confidentiality obligations hereunder and agree in writing to be bound by same.
All Confidential Information of each party shall be and remain the sole property
of that party and shall not be removed by the other party from the premises of
the other, except as may be required in the course of its engagement, without
the prior written consent of the other party. Upon termination of this Agreement
or at the request of the disclosing party, the receiving party shall deliver all
Confidential Information promptly to the disclosing party and shall not make,
retain or distribute any copies thereof.
8.4 EXCLUSIONS. The obligations of confidentiality assumed under this
Agreement shall not apply to the extent the receiving party can demonstrate, by
clear and convincing evidence, that such information:
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8.4.1 is or has become generally available to the public other than as a
result of any breach of the provisions of this Agreement or any other
applicable agreement between the parties hereto;
8.4.2 was rightfully in the possession of the receiving party, without
confidentiality restrictions, prior to such party's receipt pursuant to
this Agreement;
8.4.3 was rightfully acquired by the receiving party from a third party
who was entitled to disclose such information, without confidentiality or
proprietary restrictions;
8.4.4 was independently developed by the receiving party without using
or referring to the disclosing party's Confidential Information; or,
8.4.5 is required to be disclosed by the receiving party under order
from a court or regulatory agency having competent jurisdiction, provided
that the receiving party promptly notifies the disclosing party in order
to provide the disclosing party an opportunity to seek a protective
order.
8.5 INJUNCTIVE RELIEF. Receiving party acknowledges that any breach of its
confidentiality obligations hereunder will constitute immediate and irreparable
harm to disclosing party and/or its successors and assigns, which cannot
adequately and fully be compensated by money damages and will warrant, in
addition to all other rights and remedies afforded by law, injunctive relief,
specific performance and/or other equitable relief.
8.6 COMPLIANCE WITH LAW. The Contractor will implement a reasonably
appropriate security program to reasonably meet the applicable requirements of
Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 0000 (xxx "XXX Xxx") and regulations of
the Office of the Comptroller of the Currency issued pursuant to the GLB Act
("GLB Regulations") in the use, reuse, non-disclosure and protection of
non-public personal information ("NPI") that may be disclosed to it in the
course of this Agreement. Without limiting the generality of the foregoing,
Contractor (a) will use NPI solely for the purpose of performing its duties and
exercising its rights under this Agreement, (b) will not use NPI for any other
purpose, (c) will not disclose or communicate NPI, directly or indirectly, to
any third party except as may be necessary or appropriate for the performance of
Contractor's duties and the exercise of its rights hereunder, and (d) will
maintain reasonably appropriate physical, electronic, and procedural security
measures to reasonably protect against unauthorized access to or use of NPI.
Notwithstanding any term in this Section 8.6, Contractor is not responsible if
(i) any third party improperly obtains access to NPI, or (ii) any other breach
of this Section 8.6, in either case, is due to any act or omission of Client,
its employees or users or any agent or consultant of Client other than
Contractor. Contractor is not obligated to update or modify the Deliverables
with respect to compliance with GLB Regulations after the delivery of the
Deliverables to Client. Contractor shall permit Client to examine and inspect
Contractor's security program and privacy procedures at any time during
Contractor's regular business hours, provided that Client provides reasonable
advance written notice to Contractor.
9. PROPRIETARY RIGHTS
9.1 WORK PRODUCT. The phrase "Work Product" shall mean all Deliverables,
work, materials, software (object and source code), flow charts, specifications,
designs, processes, computer programs, manuals, modifications, improvements, and
the tangible embodiments of same, made or conceived by
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Contractor or its Personnel in connection with and during the performance of
services under this Agreement, other than Developer's Tools.
9.2 OWNERSHIP RIGHTS. To the extent any Work Product is protectable under
U.S. Copyright laws, such Work Product shall be considered a "work made for
hire" as that phrase is defined by such laws and shall be owned by and for the
sole and exclusive benefit of Client. In the event any such Work Product does
not qualify as a "work made for hire", Contractor hereby irrevocably and
exclusively sells, assigns and transfers to the Client its entire right, title
and interest in and to such Work Product (other than "Developer's Tools" defined
below), including without limitation, all Intellectual Property Rights therein
or relating thereto. Contractor agrees to waive all of its moral rights, if any,
relating to the Work Product, including any rights of identification of
authorship and any and all rights of approval, restriction or limitation on use
thereof or subsequent modifications thereto.
9.3 COOPERATION. Both during the term of this Agreement and thereafter,
Contractor shall, at no cost to Contractor, (i) reasonably cooperate with Client
in the protection and enforcement of any Intellectual Property Rights that
derive from the Work Product; and (ii) provide all reasonable assistance and
execute, acknowledge and deliver all documents reasonably requested by Client in
the establishment, publication, preservation, protection and enforcement of its
rights in said Work Product.
9.4 USE OF THE WORK PRODUCT. Subject to any third party license rights under
Third Party Materials, Contractor agrees and acknowledges that Client shall have
the right in its sole discretion and without further consideration to Contractor
to make any use of the Work Product as it may desire, including without
limitation, creating and implementing software or other derivative works based
thereon, and/or using, selling, licensing or otherwise exploiting the Work
Product or software or other derivative works based thereon, either itself of
through third parties; provided, however, that nothing herein shall obligate
Client to further develop, use or exploit the Work Product.
9.5 DEVELOPER'S TOOLS. "Developer's Tools" shall mean Contractor's
pre-existing, proprietary reusable software code (including derivatives thereof)
that is installed or incorporated in or as part of the Work Product.
"Developer's Tools" also include the enhanced general knowledge, skills and
experience developed by Contractor as a result of Contractor's performance of
services under this Agreement. Contractor hereby grants to Client and its
Affiliate a non-exclusive, fully paid-up, perpetual right and license to use,
copy, modify, display, and make derivative works from the Developer's Tools for
the purposes of using, operating, supporting and/or maintaining the Work
Product. Nothing herein, however, shall be deemed a transfer of ownership of the
Developer's Tools to Client.
9.6 THIRD PARTY INTELLECTUAL PROPERTY. If Contractor intends to include
within the Work Product any software or other intellectual property of a third
party ("Third Party Materials"), or if in order to use the Work Product Client
will be required to use any Third Party Materials, Contractor will so notify
Client and arrange for Client to obtain, at Client's sole cost but subject to
Client's approval, such approval not to be unreasonably withheld or delayed, a
perpetual, royalty-free, non-exclusive right and license to use the Third Party
Materials in connection with Client's or an Affiliates' use of the Work Product.
9.7 NON-EXCLUSIVE RIGHTS. Nothing in this Agreement shall preclude or limit
either party from independently acquiring or developing competitive products or
services for itself or its customers, or from providing competitive products or
services to its customers, so long as such party does not breach the
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obligations it has assumed under this Agreement or otherwise violate the rights
of the other party. Further, nothing in this Agreement will be construed to
restrict either party from using intangible residual know-how or general
knowledge or concepts retained in the mind of such party's employees and
consultants in developing products or performing services provided that such
party or its employees and consultants do not reference, incorporate or use any
Confidential Information or otherwise infringe on the Intellectual Property
Rights of the other party. Further, each party acknowledges that the other may
currently or in the future be developing information internally, or receiving
information from other parties, that is similar to the Work Product.
Accordingly, nothing in this Agreement will be construed as a representation or
agreement that Contractor will not develop or have developed for it products,
concepts, systems or techniques that are similar to or compete with the
products, concepts, systems or techniques contemplated by or embodied in the
Work Product, provided that Contractor does not violate any of its obligations
under this Agreement or otherwise infringe the Intellectual Property Rights of
the Client. Notwithstanding any term in this Agreement to the contrary, and for
purposes of clarification, the parties agree that (1) Client makes no claim to
exclusive ownership of the concepts and processes incorporated in the GATE
Universal System which are generally known in the industry; and (2) except for
the tier pricing and specific content (namely, the data, criteria, variables,
formulas and relationships between each of the data points) embodied in the GATE
Universal System, Contractor may use such concepts and processes incorporated in
the GATE Universal System in developing similar loan origination systems for
itself or others, so long as Contractor does not breach its confidentiality
obligations under this Agreement or violate the copyrights or trade secret
rights of Client.
10. LIMITATION OF LIABILITY
10.1 EXCEPT FOR CLAIMS ARISING UNDER SECTION 8 (CONFIDENTIAL INFORMATION) AND
SECTION 7.2 (NON-INFRINGEMENT), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY
(OR TO ANY PERSON OR ENTITY CLAIMING THROUGH THE OTHER PARTY) FOR LOST PROFITS
OR FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING
OUT OF OR IN ANY MANNER CONNECTED WITH THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH PARTY HAS BEEN
INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH
DAMAGES.
10.2 Except for claims arising under Section 8 (Confidential Information) and
Section 7.2 (Non-Infringement), notwithstanding any term in this Agreement to
the contrary, Contractor's aggregate liability under this Agreement shall not
exceed the total amount of fees paid to Contractor hereunder.
11. INDEMNIFICATION
11.1 Contractor shall indemnify, defend and hold harmless Client, including
its officers, directors, agents and employees, from and against all claims,
demands, liability, actions, losses and expenses (including reasonable attorneys
fees) asserted against or incurred by Client without limitation relating to or
arising out of, directly or indirectly, a breach by Contractor of its
representation and warranty of non-infringement in Section 7.2 or a breach by
Contractor of its obligations under Section 8 (Confidential Information). The
indemnification hereunder shall survive termination of this Agreement. This
indemnity under Section 11.1 shall not extend to any claim of infringement
resulting from Client's or its user's unauthorized modification of the
Deliverables or from use or incorporation of such technology with
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products not provided by or recommended by Contractor or by or for Client with
Contractor's approval in a manner for which such technology is not designed. If
any Deliverable is finally adjudged to so infringe, or in Contractor's opinion
is likely to become the subject of such a claim, Contractor shall, at its option
and cost, either: (i) procure for Client the right to continue using the
Deliverables; or (ii) modify or replace the Deliverables in question to make it
non-infringing. Contractor shall have no liability regarding any claim arising
out of: (w) use of other than the unaltered Deliverables accepted by Client
under the terms herein unless the modifications were made or approved by
Contractor, (x) use of the Deliverables in combination with software, data or
equipment not provided or approved by Contractor if the infringement was caused
by such use or combination, (y) any modification or derivation of the
Deliverables not made by or specifically authorized in writing by Contractor or
(z) use of third party software.
THIS SECTION 11.1 STATES THE ENTIRE LIABILITY OF CONTRACTOR AND THE EXCLUSIVE
REMEDY FOR CLIENT RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY
COPYRIGHT OR OTHER PROPRIETARY RIGHT BY THE DELIVERABLES.
11.2 Client shall indemnify, defend and hold harmless Contractor, including
its officers, directors, agents and employees, from and against all claims,
demands, liability, actions, losses and expenses (including reasonable attorneys
fees) asserted against or incurred by Client without limitation relating to or
arising out of, directly or indirectly, a breach by Client of its representation
and warranty of non-infringement in Section 7.2. The indemnification hereunder
shall survive termination of this Agreement.
11.3 A party that becomes aware of any such claim, suit or proceeding shall
give prompt notice thereof to the other party, and the parties shall cooperate
in the defense of such claim, suit or proceeding, including appeals,
negotiations and any settlement or compromise thereof.
12. TERM AND TERMINATION
12.1 TERM. This Agreement shall commence on the Effective Date and shall
continue in effect until the earlier of (i) termination in accordance with this
Section, or (ii) completion and acceptance by Client of the System in accordance
with the terms of this Agreement.
12.2 TERMINATION. This Agreement may be terminated as follows:
12.2.1 Either party may terminate this Agreement upon thirty (30) days
written notice to the other party in the event of a material breach of
any provision in this Agreement, provided that, the breaching party fails
to perform or cure said breach within thirty (30) days after written
notice thereof.
12.2.2 Client, in its sole discretion, may terminate this Agreement for
any reason upon sixty (60) days written notice to Contractor. In the
event Client terminates this Agreement in accordance with this paragraph,
Client shall have no further obligation hereunder other than amounts owed
for services actually performed (based on Contractor's hours incurred at
the hourly rates set forth in the Proposals).
12.3 ORDERLY TRANSFER. Upon the termination of this Agreement for any reason
whatsoever (including
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a default by either party), Contractor will provide such information,
cooperation and assistance to Client, as Client may reasonably request, to
assure an orderly return or transfer to Client or Client's designee of all
Client Confidential Information (and related records and files) and all Work
Product (to the extent paid for by Client, provided, however, that any payment
by Client shall not be construed as a waiver of or limitation on its rights
under this Agreement), in its then current condition. In addition, except as
otherwise expressly provided in this Agreement, upon the request of a party
after such expiration or termination, the other party will return (or purge its
systems and files of, and suitably account for) all Confidential Information
supplied to, or otherwise obtained by, such party in connection with this
Agreement. A party will certify in writing that it has fully complied with its
obligations under this Section within seven days after its receipt of a request
by the other party for such a certification. Nothing in this Section 12.3 shall
be construed to limit either party's right to seek relief from damages that are
caused by the other party's default.
13. RELATIONSHIP BETWEEN THE PARTIES
Contractor will perform all work contemplated by this Agreement as an
independent contractor. Neither this Agreement nor Contractor's performance of
work herein shall create an association, partnership, joint venture, or
relationship of principal and agent, master and servant, or employer and
employee, between Client and Contractor; and neither party will have the right,
power or authority (whether expressed or implied) to enter into or assume any
duty or obligation on behalf of the other party.
14. FORCE MAJEURE
Each party will be excused from a delay in performing, or a failure to perform,
its obligations under this Agreement to the extent such delay or failure is
caused by the occurrence of any contingency beyond the reasonable control (and
without any fault) of such party. In such event, the performance times shall be
extended for a period of time equivalent to the time lost because of the
excusable delay; provided, however, the party relying on the excusable delay
shall promptly notify the other party thereof and take commercially reasonable
steps to return to full performance as soon as practicable. However, if an
excusable delay continues more than sixty (60) consecutive calendar days, and
provided the delay was not due to the acts or omissions of the party not relying
on the excusable delay, the party not relying on the excusable delay may, at its
option (and without penalty or financial obligation of any kind), terminate this
Agreement upon notice to the other party; provided, however, that all fees
payable to Contractor through the effective date of such termination shall be
payable to Contractor and such fees shall be determined based upon the hours
incurred by Contractor through the date of termination at Contractor's hourly
rates set forth in the Proposals.
15. ASSIGNMENT
Neither party may assign this Agreement or any of its rights or interests
hereunder, nor delegate or subcontract any work or obligation to be performed
hereunder, without the prior written consent of the other party, which consent
shall not be unreasonably withheld. Any attempted assignment, delegation or
subcontracting in contravention of this provision shall be null and void, and of
no force or effect. Notwithstanding the foregoing, (a) Client may, with notice
to Contractor, assign this Agreement and delegate its obligations hereunder, to
(i) an Affiliate, (ii) Client's successor pursuant to a merger, consolidation or
sale, or (iii) an entity that acquires all or substantially all of Client's
assets; and (b)
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Contractor may, with written notice to Client, assign this Agreement and
delegate its obligations hereunder, to (i) an Affiliate, (ii) Contractor's
successor pursuant to a merger, consolidation or sale, or (iii) an entity that
acquires all or substantially all of Contractor's assets. This Agreement shall
bind, and inure to the benefit of, the respective legal successors and permitted
assigns of the parties.
16. NON-SOLICITATION
During and for a period of one (1) year following termination of this Agreement,
Contractor shall not, without prior written consent of Client, hire or attempt
to hire any employee of Client. During and for a period of one (1) year
following termination of this Agreement, Client and its Affiliates shall not,
without prior written consent of Contractor, hire or attempt to hire any
employee of Contractor.
17. NOTICES
All notices, demands and other communications hereunder shall be in writing and
shall be deemed given to the other party when delivered by personal delivery,
overnight, regular or certified mail, or by messenger or courier services
properly addressed to the party set forth below, postage or fees prepaid or
billed to sender's account with proof of delivery, or in the case of certified
mail or overnight delivery, rejection after attempted delivery. For purposes of
this Agreement, mail notices shall be deemed given upon three (3) business days
following deposit in the mail. Either party may, by notice, specify a different
person or address than the person or address listed below.
Contractor Contract Representative Client Contact Representative:
V-Tek Systems Corporation The First Marblehead Corporation
Attn: Xxxxxxx Xxxxxx Attn: Xxxxx Xxxxx
0000 Xxxxxx Xxxxx Xxxxx 00 Xxxxxx Xxxxxx
Xxxxxxx Xxx, Xxxxxxxxxx 00000 Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
18. REMEDIES
All remedies in this Agreement are cumulative and in addition to (not in lieu
of) any other remedies available to a party at law or in equity, subject only to
the express limitations on liabilities and remedies set forth herein. In the
event of a claim by Client for loss or damages, Client shall be entitled to
adjust the amounts claimed against future or outstanding payments due, or which
may become due, to Contractor.
19. CHOICE OF LAW, JURISDICTION, WAIVER
19.1 GOVERNING LAW. The laws of the State of California shall in all respects
govern this Agreement as an agreement executed in, and to be entirely performed
within, the State of California without giving effect to the conflict of laws
principles thereof. For the avoidance of doubt, nothing stated in this Agreement
will prejudice or limit the rights or remedies of either party to enforce any
award or decree under the laws of any jurisdiction where property or assets of
the other party may be located.
19.2 JURISDICTION. In the event Client commences the litigation, all claims or
disputes arising out of or in connection with this Agreement shall be heard
exclusively by a federal or state court sitting in Suffolk
11
County, Commonwealth of Massachusetts. In the event Contractor commences the
litigation, all claims or disputes arising out of or in connection with this
Agreement shall be heard exclusively by a federal or state court sitting in Los
Angeles County, State of California. Each party waives any objection it may have
to any proceedings brought in any such court, waives any claim that the
proceedings have been brought in an inconvenient forum, and further waives the
right to object (with respect to such proceedings) that such court does not have
jurisdiction over such party. Without limiting the generality of the forgoing,
Contractor and Client specifically consents to personal and subject matter
jurisdiction for such claims in the federal or state court sitting in Suffolk
County, Commonwealth of Massachusetts, and Los Angeles County, State of
California.
20. WAIVER
No course of dealing, failure by either party to require the strict performance
of any obligation assumed by the other hereunder, or failure by either party to
exercise any right or remedy to which it is entitled, shall constitute a waiver
or cause a diminution of the obligations or rights provided under this
Agreement. No provision of this Agreement shall be deemed to have been waived by
any act or knowledge of either party, but only by a written instrument signed by
a duly authorized representative of the party to be bound thereby. Waiver by
either party of any default shall not constitute a waiver of any other or
subsequent default.
21. CONSTRUCTION
21.1 HEADINGS. Section headings contained in this Agreement are inserted for
convenience only, and shall not be considered for defining, limiting or
interpreting the terms and provisions.
21.2 INCONSISTENCIES. In the event of any inconsistency between the provisions
of this Agreement and the Proposals, the provisions of this Agreement shall
govern. The provisions of this Agreement and the Proposals shall supersede the
provisions of any work order or other engagement provisions submitted by
Contractor.
21.3 SEVERABILITY. If a court of competent jurisdiction declares any provision
of this Agreement to be invalid, unlawful or unenforceable as drafted, the
parties intend that such provision be amended and construed in a manner designed
to effectuate the purposes of the provision to the fullest extent permitted by
law. If such provision can not be so amended and construed, the provision shall
be severed, and the remaining provisions shall remain unimpaired and in full
force and effect to the fullest extent permitted by law.
21.4 MODIFICATION. The terms, conditions, covenants and other provisions of
this Agreement may hereafter be modified, amended, supplemented or otherwise
changed only by a written instrument that specifically purports to do so and is
signed by a duly authorized representative of each party.
21.5 SURVIVAL. The provisions of this Agreement that, by their nature and
content, must survive the completion, rescission, termination or expiration of
this Agreement in order to achieve the fundamental purposes of this Agreement
(including the provisions of Sections 6 through 22) shall so survive and
continue to bind the parties.
12
21.6 COMPLETE UNDERSTANDING. This Agreement (together with the schedules,
exhibits, and other appendices attached hereto or specifically incorporated
herein by reference) constitutes the complete understanding of the parties with
regard to the subject matter hereof. This Agreement supersedes all prior or
contemporaneous agreements, discussions, negotiations, promises, proposals,
representations, and understandings (whether written or oral) between the
parties with regard to the subject matter hereof. Contractor specifically
acknowledges and agrees that it did not enter into this Agreement in reliance
upon any agreement, promise, representation, or understanding made by or on
behalf of Client that is not contained herein.
21.7 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one instrument.
22. DISPUTE RESOLUTION
22.1 MEDIATION. In the event of a dispute between the parties hereto arising
from this Agreement or the interpretation thereof, or the performance of the
services by Contractor hereunder, then before filing a lawsuit, the parties
agree to first submit the dispute to non-binding mediation with a mutually
acceptable mediator, and each party shall bear one-half (1/2) of the mediator's
fees and expenses. Except as expressly set forth below, if any party files a
lawsuit or submits the dispute to arbitration without complying with the
foregoing requirement, that party shall waive its right to any attorneys' fees
to which such party may be entitled to under this Agreement. Notwithstanding the
foregoing, if a party submits a written request to mediate a dispute to the
other party and the latter fails to respond in good faith and to take reasonable
steps to initiate mediation within thirty (30) days of receipt of such notice,
the party requesting the mediation shall then be free to file an arbitration
action and there shall be no waiver of any entitlement to attorneys' fees under
the preceding sentence. No provision of this Section 24.1 shall, however, limit
or affect the right of a party to obtain provisional or ancillary equitable
remedies or relief from a court of competent jurisdiction before, after or
during the pendency of any mediation.
22.2 ARBITRATION. After first submitting the dispute to mediation as described
in Section 22.1 above, any controversy or claim between the parties, including,
but not limited to, those arising out of or relating to this Agreement or any
agreements or instruments relating hereto and any claim based on or arising from
an alleged tort, shall at the request of a party be determined by binding
arbitration. If commenced at the request of Client, the arbitration shall be
conducted in Boston, Massachusetts, and if commenced at the request of
Contractor, the arbitration shall be conducted in Los Angeles, California (or in
either event in any other location mutually agreed to by the parties) in
accordance with the United States Arbitration Act (Title 9, U.S. Code),
notwithstanding any choice of law provision in this Agreement, and under the
auspices and rules of the American Arbitration Association then in effect. Each
party may serve a single request for production of documents. If disputes arise
concerning these requests, the arbitrators shall have sole and complete
discretion to determine the disputes. The arbitrators shall give effect to
statutes of limitation in determining any claim, and any controversy concerning
whether an issue can be arbitrated shall be determined by the arbitrators. The
arbitrators shall deliver a written opinion setting forth findings of fact,
conclusions of law and the rationale for the decision and shall reconsider the
decision once upon the motion and at the expense of a party. Judgment upon the
decision rendered by the arbitrators may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial relief
or pursuit of provisional or ancillary equitable remedies and relief shall not
constitute a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitration if the other party
13
contests such action for judicial relief. No provision of this Section 22.2
shall limit or affect the right of a party to this Agreement to obtain
provisional or ancillary equitable remedies or relief from a court of competent
jurisdiction before, after, or during the pendency of any arbitration. The
exercise of a remedy does not waive the right of either party to resort to
arbitration.
22.3. LEGAL FEES. If a legal action or arbitration proceeding is commenced in
connection with any dispute under this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees actually incurred, costs and necessary
disbursements incurred in connection with such action or proceeding, as
determined by the court or arbitrators.
IN WITNESS WHEREOF, the parties hereto, through their duly authorized officers,
have executed this Development Agreement as of the day, month and year first
above written.
Contractor: V-Tek Systems Corporation Client: The First Marblehead Corporation
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxx
----------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxx Xxxxx
----------------------------- ---------------------------------
Title: President/CEO Title: President & CEO
----------------------------- ---------------------------------
Date: 7/8/2003 Date: 7/11/2003
----------------------------- ---------------------------------
14
EXHIBIT A.1
REVISED GATE UNIVERSAL PROCESS PROPOSAL
DATED APRIL 17, 2002
15
EXHIBIT A.2
REVISED GATE UNIVERSAL PROCESS PROPOSAL ADDENDUM DATED SEPTEMBER 26, 2002
16
EXHIBIT A.3
GATE STUDENT - SSN AUTHENTICATION
PROPOSAL DATED NOVEMBER 7, 2002
17
EXHIBIT A.4
GATE UNIVERSAL ADDITIONAL DATA REQUIREMENTS
PROPOSAL DATED FEBRUARY 27, 2003
18
EXHIBIT B
SPECIFICATION DOCUMENTS FOR GATE UNIVERSAL SYSTEM
See attached Business/Functional Requirement Documents for the following Tasks
and Processes (received by Client from Contractor via email attachments on May
20, 2003):
Task #1233 - AES School Inquiry
Task #1150 - Outbound File Process
Task #1151 - Email Generation
Task #1153 - Credit Results
Xxxx #0000 - Credit Analysis
Xxxx #0000 - Reporting Process
Task #1156 - Borrower Application Enrollment (Web)
Task #1157 - Borrower Web Claiming
Task #1158 - Cosigner Information Entry (Web)
Task #1160 - Borrower Acceptance Entry (Web)
Task #1161 - Borrower Requests New Cosigner Entry (Web)
Task #1180 - File Reconciliation and Mapping
Task #1231 - AES Login and Function Menu
Task #1232 - AES Cosigner Inquiry
Task #1149 - Validation and Inbound File Process
Task #1234 AES Password Inquiry
19
EXHIBIT C
ACCEPTANCE TEST PLAN
FUNCTIONALITY MODULES OF THE GATE UNIVERSAL SYSTEM (STATUS AS OF 6/30/03)
- Email Programs Completed
- Inbound Program Completed
- Outbound Program Completed
- Credit Results Program Completed
- Credit Analysis Program Completed
- Credit Send File (Out to BA) Completed
- Credit Result File ( In from BA) Completed
- Report Program Completed
- Modify FMC Converter Completed
- Borrower Enrollment Form Programs Completed
- Borrower Web Claiming Pages Completed
- Cosigner Information Web Claiming Pages Completed
- Borrower Requests New Cosigner Pages Completed
- Borrower Acceptance Pages Completed
- AES Menu Functions
- AES School Tier Inquiry Function Completed
- New Borrower and Cosigner PIN Function Completed
- Password Encryption Utility Completed
- New Cosigner by Phone Function Completed
Specifications (and source code) for each of the above Modules completed,
delivered to FMC and approved by FMC.
QA all Web Pages
Web Graphics and Design
Complete internal UAT V-Tek on all completed modules
QA Web Finals
Development Implementation Process
Credit Analysis Development QA
Credit File Transfer QA
Borrower Acceptance Development QA
20
TEST PHASE 1: INTERNAL QA (V-TEK) [**]**
[**]
TEST PHASE 2: FMC UAT COMMENCE [**]**
- [**]
PRODUCTION AND IMPLEMENTATION APPROVAL [**]**
[**]
[**]
21
EXHIBIT D
FEES AND PAYMENT SCHEDULE
GATE UNIVERSAL PROCESS PROPOSAL
SUMMARY
DATE GRAND TOTAL PAYMENT PAYMENT PAYMENT
---- ----------- ------- ------- -------
[**]% [**]% [**]%
GATE UNIVERSAL PROCESS PROPOSAL [**] $ [**] Yes Yes TBD
GATE UNIVERSAL PROCESS PROPOSAL ADDENDUM [**] $ [**] Yes Yes TBD
GATE UNIVERSAL PROCESS PROPOSAL ADDENDUM [**] $ [**] Yes Yes TBD
SSN AUTHENTICATION
GATE UNIVERSAL DATA REQUIREMENTS (BANK OF AMERICA) $ [**] Yes Yes TBD
-----------
$ [**]
TERMS
[**]% ON PROJECT ACCEPTANCE
[**]% ON COMPLETION OF DEVELOPMENT
[**]% ON PROJECT COMPLETION
22
GATE UNIVERSAL PROCESS PROPOSAL
17-APR-02
HOURS COST
PROGRAM MANAGEMENT [**] $____[**]
PROGRAMMING
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
QUALITY ASSURANCE
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
GRAND TOTAL $ [**]
TERMS
SOFTWARE DEVELOPMENT FEES ARE PAYABLE AS FOLLOWS: PAID
[**]% on Project Acceptance [**]
[**]% on Completion of Development [**]
[**]% on Project Completion [**]
23
GATE UNIVERSAL PROCESS PROPOSAL ADDENDUM
26-SEP-02
HOURS COST
PROGRAM MANAGEMENT [**] $____[**]
DEVELOPMENT
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
QUALITY ASSURANCE [**] $____[**]
GRAND TOTAL $____[**]
TERMS
SOFTWARE DEVELOPMENT FEES ARE PAYABLE AS FOLLOWS: PAID
[**]% on Project Acceptance [**]
[**]% on Completion of Development [**]
[**]% on Project Completion [**]
24
GATE UNIVERSAL PROCESS PROPOSAL ADDENDUM
SSN AUTHENTICATION
7-NOV-02
HOURS COST
PROGRAM MANAGEMENT [**] [**]
[**] [**] [**]
DEVELOPMENT
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
[**] [**] $____[**]
QUALITY ASSURANCE [**] $____[**]
JOB SCHEDULING
[**] [**] $____[**]
[**] $____[**]
TOTAL $ [**]
DISCOUNT FOR SCHOOL CERTIFICATION WEB FUNCTION
[**] [**] $ [**]
[**] [**] $ [**]
[**] [**] $ [**]
[**] [**] $ [**]
[**] [**] $ [**]
TOTAL DEBITS $ [**]
GRAND TOTAL $ [**]
NOTE: [**].
TERMS
SOFTWARE DEVELOPMENT FEES ARE PAYABLE AS FOLLOWS: PAID
[**]% on Project Acceptance [**]
[**]% on Completion of Development [**]
[**]% on Project Completion (Production Ready) [**]
25
GATE UNIVERSAL DATA REQUIREMENTS
27-FEB-03
HOURS COST
PROGRAM MANAGEMENT [**] $____[**]
DEVELOPMENT
[**] [**] $____[**]
[**] [**] $____[**]
QUALITY ASSURANCE [**] $____[**]
TOTAL [**] $ [**]
TERMS
SOFTWARE DEVELOPMENT FEES ARE PAYABLE AS FOLLOWS: PAID
[**]% on Project Acceptance [**]
[**]% on Completion of Development [**]
[**]% on Project Completion (Ready for Production) [**]
26
