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EXHIBIT 10.1
PROJECT COMMENCEMENT AGREEMENT
(CMSI CREDITREVUE(R) SOFTWARE)
THIS AGREEMENT is made this ______ day of __________________, 1996 (the
"Effective Date"), by and between Credit Management Solutions, Inc. ("CMSI"),
with its principal place of business at 0000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx, 00000, and _________________ ("Licensee"), with its
principal place of business at ____________________________________.
BACKGROUND
CMSI is the licensor of a proprietary software system utilized for lending
purposes named CreditRevue(R), including various CMSI proprietary optional
software packages, some of which may be referred to by another name
(CreditRevue(R) and such optional software packages are hereinafter referred to
collectively as the "Software"). Licensee is a financial institution which
intends to enter into a license agreement and a maintenance agreement with CMSI
for the Software, including various system options and customizations. The
system options and customizations which will be contained in the initial
Software package to be licensed by Licensee shall be outlined in the Functional
Specifications document to be developed by CMSI and agreed to by Licensee
during the term of this Agreement. Additionally, CMSI shall develop with
Licensee's cooperation a Project Plan Schedule for implementation of the
Software system by Licensee, and CMSI and Licensee shall negotiate pricing for
Licensee's customized version of the Software, during the term of this
Agreement. During the term of this Agreement, CMSI may make the Software
available to Licensee, solely for development and project planning purposes,
and CMSI shall devote the resources necessary to prepare the Functional
Specifications and to perform such other tasks as may reasonably be appropriate
so that the parties can finalize and execute a definitive CreditRevue(R)
Software License Agreement (the "License Agreement") and a definitive
CreditRevue(R) Software Maintenance Agreement (the "Maintenance Agreement").
CMSI and Licensee anticipate that they shall execute the License Agreement and
Maintenance Agreement, permitting Licensee to utilize the Software for
production purposes, within sixty (60) days after the Project Commencement Date
(as defined below). Neither the Software, nor any associated third party
software provided by CMSI and used in conjunction with the Software, shall be
available to Licensee or its Affiliates for production purposes until after
such time as the License Agreement and Maintenance Agreement are executed.
For the purposes of this Agreement, "Affiliate" shall mean any person or entity
(i) that owns more than fifty percent (50%) of the voting capital stock of
Licensee, or (ii) more than fifty percent (50%) of whose voting capital stock
is owned by Licensee, or (iii) more than fifty percent (50%) of whose voting
capital stock is owned by another person or entity that at such time owns more
than fifty percent (50%) of the voting capital stock of Licensee. A person's
or entity's status as an Affiliate shall terminate if it undergoes a change in
ownership such that it no longer satisfies the common ownership provisions of
the previous sentence.
TERMS AND CONDITIONS
1. This Agreement will be for a ________________________ (___)
concurrent user Software system. Upon execution of this Agreement, Licensee
will make an initial payment to CMSI of $________________________ (the "Initial
Payment") in compensation for its development of the Functional Specifications
and related efforts hereunder. CMSI and Licensee agree that the full pricing
for a production license for a ________________________ (___) concurrent user
Software system to Licensee shall be finalized upon the completion of the
Functional Specifications document, if not earlier, and will be dependent upon
Licensee's customization requirements for the Software. In the event that any
specific Affiliate or group of Affiliates requests CMSI to perform
customization services specific to their particular requirements, such
Affiliate or group of Affiliates shall not be required to acquire a separate
license to the Software, but CMSI reserves the right to charge its standard
project fees as if such customizations represented a new and independent
project.
2. Licensee acknowledges that CMSI shall not start work under this
Agreement upon the Effective Date. Instead, CMSI shall notify Licensee in
writing of the date upon which it shall commence work (the "Project
Commencement Date"), and in no event shall the Project Commencement Date be
later than ________________, 1996. Upon the Project Commencement Date, CMSI
will begin working with Licensee on the Functional Specifications document, the
negotiation of final pricing, and a Project Plan Schedule for the
implementation of the Software at Licensee's designated
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site(s). CMSI shall proceed with the development of the Functional
Specifications in a diligent manner and shall use all reasonable efforts to
allocate such skilled personnel and other resources to the project as shall be
necessary to complete the Functional Specifications within sixty (60) days of
the Project Commencement Date. Licensee shall provide all information,
assistance and decisions reasonably requested by CMSI in a timely fashion so as
to not inhibit CMSI's ability to complete the Functional Specifications within
sixty (60) days of the Project Commencement Date, and Licensee acknowledges
that the period for completing the Functional Specifications may be extended to
the extent that Licensee's failure to meet this obligation causes project
delay(s) Additionally, CMSI and Licensee agree to promptly begin and proceed
with good faith negotiations and the finalization of the License Agreement and
Maintenance Agreement. Such agreements and documentation shall include the
applicable terms and conditions set forth in this Agreement and in Exhibit A
attached hereto, unless otherwise agreed in writing by the parties. Upon their
execution, the License Agreement and Maintenance Agreement shall supersede the
terms of this Agreement.
3. If the Functional Specifications document has not been completed
and/or approved by Licensee within sixty (60) days following the Project
Commencement Date for reason other than CMSI's failure to perform as required
in Section 2 above, and Licensee does not provide CMSI with written notice of
its intent to terminate this Agreement, then CMSI shall be entitled to
additional compensation for continued work that it performs on the Functional
Specifications and the Software. Such additional compensation shall be in the
amount of $30,000.00 per month, commencing with the period beginning sixty (60)
days after the Project Commencement Date. CMSI shall invoice Licensee monthly
in arrears for any such additional compensation. Upon execution of a document
which constitutes final written agreement with respect to the License Agreement
and Maintenance Agreement and such other documentation prepared in accordance
with this Agreement, and final pricing for the Software, CMSI shall credit
Licensee under the License Agreement for the Initial Payment. If the parties
fail to reach final agreement on the License Agreement, Licensee's sole
liability to CMSI in connection with the matters set forth in this Agreement
shall be the Initial Payment and any monthly payments paid and/or owed to CMSI
under this Section 3 prior to the termination of this Agreement. In the event
of any such failure to reach agreement on the License Agreement, CMSI shall
have no further obligation toward Licensee with respect to the Functional
Specifications and Software, Licensee's rights to review or utilize the
Functional Specifications and Software shall terminate, and Licensee shall
promptly upon CMSI's request return to CMSI all copies of (i) the Software,
(ii) any associated third party software provided by CMSI and used in
conjunction with the Software, (iii) the Functional Specifications, and (iv)
any other documentation relating thereto. Licensee's failure to make payments
when due under this Agreement and not to cure such failure within ten (10) days
after written notice from CMSI shall constitute a breach hereof, entitling CMSI
in its discretion to terminate this Agreement.
4. The parties hereto recognize that as a result of the arrangements
contemplated hereby, both parties will have access to, will acquire, and will
assist in developing confidential and proprietary information relating to the
business and operations of the other party and its affiliates, including
without limiting the generality of the foregoing, information systems and
customers. The parties acknowledge that such information has been and will be
of central importance to each parties' business and that disclosures of it or
its use by others could cause substantial loss to the other party. Each party
accordingly agrees that it will keep confidential any trade secrets or
confidential or proprietary information of the other party that it may gain
access to as a result of its association with the other party, and shall not at
any time directly or indirectly disclose such information to any person, firm,
or corporation, or use the same in any way other than as necessary in
connection with the arrangements contemplated by the Agreement. The foregoing
shall not prohibit or limit the use by either party hereunder of purportedly
proprietary or confidential information of the other party (i) independently
developed by the party using it, (ii) rightfully previously known or acquired
by the party using it from a third party without continuing restriction on use,
or (iii) which is or becomes part of the public domain through no breach of
this Agreement by the party using it. Moreover, it is understood by the
parties that CMSI has performed substantial independent development relating to
computer technology and associated products. Neither this Agreement nor
receipt by CMSI of any confidential or proprietary information of Licensee will
limit CMSI's independent development and marketing of products or systems
involving technology or ideas similar to those disclosed to it pursuant to this
Agreement, nor will receipt by CMSI of such information hereunder prevent CMSI
from undertaking similar efforts or discussions with third parties, including
but not limited to competitors of Licensee.
5. Licensee represents and warrants that, with respect to all
material and information which Licensee discloses to CMSI in connection with
CMSI's development of the Functional Specifications document or other services
performed by CMSI hereunder (such material and information hereinafter referred
to as "Licensee Provided Information"), that Licensee either (i) owns all
right, title, and interest in the Licensee Provided Information and is
authorized to disclose same to CMSI for use in any way in connection with this
Agreement; or (ii) is otherwise authorized to disclose same to CMSI, for use
in any way in connection with this Agreement.
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6. Each party agrees that in the event of a breach by it (including
its employees or agents) of the provisions of this Agreement, the other party
may have no adequate remedy in money or damages and, accordingly, shall be
entitled to seek an injunction against such breach, in addition to any other
legal or equitable remedies available to the non-breaching party.
7. Each party agrees that the failure of the other party to enforce
at any time any of the provisions of this Agreement or any rights with respect
thereto or to exercise any election herein provided shall in no way be
considered a waiver of such provisions, rights or elections or in any way
affect the validity of this Agreement. The exercise by either party of any of
its rights herein shall not preclude or prejudice that party from exercising
any other right it may have under this Agreement, irrespective of any previous
action or proceeding taken by that party hereunder.
8. In the event that any provision of this Agreement is determined by
any judicial body to be invalid and unenforceable, such provision shall be
construed to be enforceable to the maximum extent permitted by the law. If any
provision of this Agreement shall be held to be illegal, invalid or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
9. Licensee shall reimburse CMSI for its reasonable travel and
related expenses incurred in connection with the services provided during the
term of this Agreement.
10. Licensee is responsible for all taxes and duties based upon
amounts payable hereunder (exclusive of taxes based upon the net income of
CMSI).
11. The provisions set forth in Sections 3, 4, 6 and 12 of this
Agreement shall survive the termination of this Agreement, unless and until
such sections are superseded by corresponding provisions in the executed
License Agreement and Maintenance Agreement.
12. This Agreement shall be governed and construed in accordance with
the laws, other than choice of law rules, of the State of Maryland, and shall
benefit and be binding upon the parties hereto and their respective successors
and assigns.
Accepted and Agreed by: Accepted and Agreed by:
CREDIT MANAGEMENT SOLUTIONS, INC. -----------------------------
("CMSI") ("Licensee")
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Signature Signature
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Print Name/Title Print Name/Title
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Date Date
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