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CONFIDENTIAL TREATMENT*. EXHIBIT 10.36
*Confidential Portions of this Exhibit have been omitted Pursuant
to the Rules and Regulations of the Securities and Exchange Commission.
Brackets and "+" have been used to identify information which is the
subject of a Confidential Treatment Request.
MARKETING AGREEMENT
THIS MARKETING AGREEMENT (the "Agreement") is made this 22nd day of
July, 1997 by and between NFRONT, INC. ("nFront"), a Georgia corporation having
its principal offices at 0000 Xxxxxxxx Xxxx Xxxx, Xxxxx 000X, Xxxxxx, Xxxxxxx
00000 and FIRST COMMERCE TECHNOLOGIES ("Reseller"), a Nebraska corporation
having its principal offices at X.X. Xxx 00000, Xxxxxxx, Xxxxxxxx 00000-0000.
W I T N E S S E T H:
WHEREAS, nFront is in the business of providing home banking and xxxx
payment services through the Internet to customers of banks and other financial
institutions;
WHEREAS, Reseller is in the business of providing transaction
processing and other administrative and computer processing services to banks
and financial institutions;
WHEREAS, Reseller desires to offer to its Customer Base (as hereinafter
defined) and potential customers Internet home banking capabilities;
WHEREAS, nFront desires Reseller to offer nFront's proprietary Internet
home banking system as more fully described in Exhibit A attached hereto (the
"nHome System") to Reseller's Customer Base and to potential Bank customers of
Reseller.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
As used in this Agreement, each of the following terms has the meaning
set forth thereafter, such meaning to be equally applicable both to the singular
and plural forms of the terms herein defined:
(a) "Agreement" means this agreement, together with all exhibits and
schedules hereto now or hereafter signed by Reseller and nFront (all of which
are herein incorporated by reference), as the same may be modified, amended or
supplemented from time to time.
(b) "Bank" means banks and other financial institutions that offer
banking services to the general public.
(c) "Customer Base" means those customers listed on Exhibit B attached
hereto and any other Banks who become customers of Reseller during the Term.
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(d) "Documentation" means that portion of the nHome System that
provides installation and operating instructions for use of the nHome System.
(e) "End-User" means the ultimate user of the nHome System.
(f) "Generic Hardware" means computer equipment and configurations
thereof that meets the specifications provided by nFront for use with the nHome
System.
(g) "nHome System" shall have the meaning set forth in the fourth
recital hereof and shall also include all future improvements, enhancements and
modifications thereof, and all releases and upgrades related thereto.
(h) The terms "sale" and "resale" and any grammatical variant thereof
shall include, without limitation, sales, contracts for sale, conditional sales,
installment sales, rentals, leases or licenses of software to Banks, and any
other arrangement whereby the nHome System is placed at the disposal of the
Banks.
(j) "Software" means that portion of the nHome System that is comprised
of computer applications programs intended to be installed on the central
processing unit of Generic Hardware.
(k) "Term" shall have the meaning set forth in Section 8.1 hereof.
ARTICLE II
Reseller Appointment
2.1 Appointment. During the Term, nFront hereby grants to Reseller the
non-exclusive right to market the nHome System to its Customer Base and
potential Bank customers of Reseller, and Reseller hereby accepts such
appointment. There are no geographic restrictions on where Reseller may market
the nHome System. Reseller understands, acknowledges and agrees that this
appointment is non-exclusive as to both the nHome System and geographic area and
that nFront may appoint more than one reseller in any given geographic area to
sell and market the same nHome System as any other reseller. nFront expressly
reserves the right to sell and deliver the nHome System to any other entity,
including Banks. Notwithstanding the immediately preceding sentence, for so long
as Reseller is actively marketing the nHome System to its Customer Base, nFront
agrees that it will not contact those Banks that are included in the Customer
Base as of the date hereof. nFront reserves the right to review the status of
Reseller's marketing efforts to the Customer Base on an annual basis, and if it
determines, in the exercise of its reasonable discretion, that Reseller is not
making reasonable efforts to market the nHome System to the Customer Base, the
restrictions set forth in the immediately preceding sentence shall no longer
apply. Unless otherwise set forth on Exhibit C attached hereto or hereafter as
consented to in writing by nFront, Reseller shall sell the nHome System only to
Banks, and shall not sell the nHome System to other parties providing core
processing services to Banks, or to Bank service bureaus, software providers,
other resellers of automated bank services or to any other buyer who intends,
directly or indirectly, to resell the nHome System. Reseller has no authority to
appoint any associate resellers or subdealers of the nHome System without
nFront's consent.
2.2 Relationship between nFront and Reseller. Reseller shall conduct its
business in the purchase and resale of nHome System as a principal for its own
account and at its own expense and risk. This Agreement does not in any way
create the relationship of principal and agent, or any similar relationship
between nFront and Reseller, including, but not limited to that of joint
ventures, partners or associates. Reseller is granted no right or authority
hereunder to assume or create any obligation or responsibility for or on behalf
of nFront or otherwise to bind or to use the nFront's name other than as
may be expressly authorized by nFront.
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ARTICLE III
Sales, Service, and Training and Related Obligations
3.1 Selling and Promotion. Reseller shall use its best efforts to sell and
promote the sale of the nHome System within the Territory, which best efforts
shall include, but not be limited to, promotion of the nHome System to the
Customer Base and prompt performance of all of its obligations under this
Agreement.
3.2 Initial Training. nFront will at its cost provide onsite training and
initial sales efforts for up to 5 consecutive days after the execution of this
agreement.
3.3 Staffing and Training. Reseller shall appoint its suitable employees to
sell, install and support the nHome System. Reseller shall, at its sole cost and
expense, send the appropriate sales, technical and training personnel to such
training programs and other refresher and upgrade training as nFront may
provide. nFront shall provide periodic routine consultation and advice to
Reseller in connection with Reseller's sales and service hereunder and shall
provide (a) technical, specification and sales advice, (b) assistance and advice
concerning promotional and training programs, and (c) suggestions for new
applications for the nHome System at Reseller's cost. nFront shall furnish
Reseller with a reasonable supply of price lists, sales literature, catalogues,
specifications for Generic Hardware, Documentation and advisory assistance with
respect to installing the nHome System. All proprietary demonstration equipment,
manuals, instruction books, contract forms, sales and promotional materials,
Documentation and similar material furnished to Reseller by nFront, whether
furnished free of charge or not, shall remain the property of nFront and upon
request shall be returned to nFront by Reseller.
3.4 Installation and Training. Reseller acknowledges, understands and agrees
that the nHome System that it shall provide to Banks shall remain resident on
nFront's server, and that such Banks shall, through Reseller, gain access to the
nHome System upon execution of a contract with Reseller. nFront shall be
responsible for systems maintenance of the nHome system resident on its server.
Reseller hereby agrees that it shall provide installation, training, and
maintenance Bank and End-User support services to Banks and shall provide such
services in respect of the nHome System as used by any such Banks who receive
access to the nHome System from Reseller. Reseller may charge any such Bank a
reasonable fee for providing such services. Installation and training services
shall include, but not be limited to, setting up and installing nHome System
access on the Bank's Generic Hardware, providing Documentation as appropriate to
Bank personnel, giving operating and maintenance instructions to the Bank's
technical support staff, training the Bank's professional staff in the use of
the nHome System, and making necessary adjustments at the time of delivery and
installation and at such subsequent times as may be necessary to ensure proper
and efficient operation of the nHome System on the Bank's Generic Hardware.
Reseller shall use its best efforts to handle satisfactorily all maters related
to the installation and initial training of Bank personnel in the use of the
nHome System, and shall report promptly to nFront each complaint received by
Reseller relating to nHome System which the Reseller cannnot remedy. If the
Reseller's installation and training obligations hereunder are not discharged
properly by Reseller, nFront, in its sole discretion, may discharge such
obligations directly or through third-parties, and Reseller agrees to reimburse
nFront upon demand for all reasonable costs and expense incurred by nFront in
connection therewith.
3.5 Reseller Promotional Activity. nFront shall not share in the expense of any
advertising or promotional activities by Reseller or other sales promotion
projects except by express agreement in writing. All materials prepared by
Reseller that promote the nHome System, including, but not limited to, any
materials that include any trademark or trade name (or any xxxx or name closely
resembling the same) now or hereafter owned or licensed by nFront or any of its
affiliates shall be approved in writing by nFront prior to use.
3.6 Reseller Recordkeeping. Reseller shall keep records of its business relating
to the nHome System as may be reasonably required by nFront. nFront or its
authorized representative may, from time to time during regular business hours,
examine such records and Resellers accounts relating to the sale and servicing
of the nHome System.
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ARTICLE IV
Conditions of Sale
4.1 Pricing and Payment. The price for access to the nHome System to the Banks
and the processing fees for transactions thereunder shall be as set forth in
Exhibit D attached hereto. As compensation for its sales, marketing,
installation, training and support services provided hereunder, Reseller shall
be entitled to retain the percentage of such fees as set forth in Exhibit D
attached hereto. For any such sales as to which nFront does not require
prepayment, payment of nFront's portion of the initial access fee shall be due
net fifteen (15) days from the date of Reseller's invoice to the Bank, subject
to credit approval, payable to nFront at its principal place of business.
Payment of nFront's portion of any processing fees shall be paid within ten (10)
days following the end of each calendar month. A late payment charge equal to
one and one-half percent (1 1/2%) of the unpaid amount for each succeeding
thirty (30) day period or portion thereof in which fees remain unpaid.
4.2 Force Majeure. nFront shall not be liable for loss or damage due to
interruption of service or access to the nHome System resulting from any cause
beyond its reasonable control, including, but not limited to Internet systems or
network failure, capacity limitations, compliance with regulations, orders or
instructions of any federal, state or municipal government or any department or
agent thereof, acts of God, acts or omissions of Reseller, acts of civil or
military authority, fires, strikes, facilities shutdowns or alterations,
embargoes, war, riot, delays in transportation, or inability to obtain necessary
labor, facilities or materials from usual sources. IN NO EVENT SHALL NFRONT BE
LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES DUE TO ANY SUCH CAUSE.
4.3 Price and System Changes. nFront shall have the right to change the nHome
System without notice to Reseller, and shall have the right at any time to
discontinue the sale of any version of the nHome System, to make changes in
method of access or delivery, including interface procedures, and to add
improvements, all without incurring any liability whatever, including any
obligation to install or modify the same on the nHome System previously accessed
by the Customer Base. nFront may change its prices to Reseller for the nHome
System upon sixty (60) days' written notice to Reseller. Any contract between
Reseller and a Bank which includes the nHome System executed prior to the date
of any such notice with a scheduled delivery date after the effective date of
such price increase shall be sold to Reseller at the revised price for the nHome
System. Any nHome System scheduled for delivery to a Bank prior to the effective
date of any such price increase but delayed due to the fault of nFront or for
reasons beyond nFront's control shall be sold to Reseller at the price as in
effect on the date Reseller ordered the nHome System. The price protection
provisions contained in this Section 4.3 shall apply only to the initial access
fees listed on Exhibit D attached hereto, and shall not apply to any increase in
processing fees, which increase shall be effective as of the thirtieth day
following written notice of such increase to Reseller.
4.4 Taxes and Other Fees. Reseller shall pay all license fees, sales, use,
service use, occupation, personal property and excise taxes and any other fees,
assessments or taxes which may be assessed or levied by any federal, state or
local government and any departments and subdivisions thereof, against any of
the nHome System ordered by Reseller, or under Reseller's direct or indirect
control.
ARTICLE V
Warranties
5.1 THE NHOME SYSTEM IS PROVIDED "AS-IS", "WHERE-IS". NFRONT SPECIFICALLY
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS TO
THE NHOME SYSTEM PROVIDED UNDER THIS AGREEMENT.
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ARTICLE VI
Special Agreements Regarding Software and Other Intellectual Property
6.1 Limited License. In the performance of Reseller's obligations hereunder, it
shall be necessary for Reseller to demonstrate the nHome System. Accordingly,
subject to the terms and conditions contained herein, nFront hereby grants to
Reseller, and Reseller hereby accepts from nFront, a non-exclusive license (the
"License") of the Software solely for the purpose of demonstrating the nHome
System in operation to potential Bank customers of Reseller.
6.2 Software Covenants. Reseller agrees to comply with each of the following
requirements:
(a) Reseller shall not copy, alter, modify, translate, decompile,
disassemble, reverse engineer or otherwise attempt to derive source code, or
create derivative works of the Software, or any part thereof, or knowingly allow
others to do so, during or after the Term.
(b) Except as otherwise specifically provided in this Agreement,
Reseller shall not loan, rent, lease, give, sub-license, or otherwise transfer,
nor communicate or otherwise disclose, the Software, including any part or any
copy thereof, in whole or in part, to any person. Reseller agrees that except
for copies of the Software provided to Reseller pursuant to Section 6.1 hereof,
all such software provided to Reseller hereunder shall remain in its sealed
package, as provided by nFront to Reseller, until delivered to a Bank customer
of Reseller.
(c) Except with respect to providing access to the nHome System to Bank
customers as authorized and specifically provided in this Agreement, Reseller
shall not electronically transfer the Software, or any part thereof, from one
computer to another over a network, irrespective of how linked.
(d) The Software, including all parts thereof, and any copies, in whole
or in part, and any and all copyrights thereto, are and remain the property of
nFront, irrespective of the ownership of the media on which such Software and
any parts or copies thereof are contained.
(e) Each copy of the Software sold to Banks shall include a license
agreement, the form of which shall be as set forth in the Exhibit E, which
license shall be incorporated into any Reseller license given to Banks,
provided, however, that nFront shall approve in advance the form of any such
license. In addition to the license to be provided to Banks upon delivery of
access to the nHome System, Reseller shall include in each invoice for use with
such software a statement specifically referring to such license agreement and
stating that acceptance and/or any use constitutes an assent to all of the terms
and conditions of such license agreement, as limited by terms and conditions
included therein. To enable nFront to verify compliance herewith, Reseller shall
provide nFront with any form agreements and invoices which Reseller plans to use
in connection herewith at least thirty (30) days prior to such use.
(f) Reseller acknowledges that the laws and regulations of the United
States restrict the export and re-export of commodities and technical data of
United States origin, including the nHome System. Reseller agrees that it shall
not export or re-export such Software in any form without nFront's consent,
which consent shall, among other things be conditioned upon Reseller receiving
the appropriate United States and foreign government licenses and approvals.
(g) Reseller shall not, by any act or omission, impair or prejudice the
copyright or any other right of whatever nature of nFront in and to the nHome
System or any part thereof, and shall not deal with the same in any manner which
may allow any third party to obtain any rights in the same which are
inconsistent or which conflict with the rights of nFront.
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6.3 Notices; Markings; Trademarks; Tradenames. Reseller agrees to comply with
the following:
(a) Reseller shall not delete any trademarks, tradename or copyright
notice present in, on or displayed by the nHome System, or any part thereof.
(b) Reseller shall not add to any notice present in, on or displayed by
the nHome System its own copyright, trademark or other proprietary notices
unless such notices have been previously approved in writing by nFront.
(c) Except as already present in, on or displayed by the nHome System
software and/or accompanying packaging or Documentation provided by nFront,
Reseller shall not use any trademarks and/or tradenames of nFront without prior
written approval of nFront.
6.4 Documentation. Each nHome System sold by Reseller to a Bank shall include
one (1) set of accompanying Documentation. Reseller shall only distribute
complete and separate copies of the Documentation to Banks and shall not
reproduce, in whole or in part, or transfer in any manner to a third party other
than a Bank, such Documentation. Any and all copyrights to such Documentation
are and shall remain the property of nFront.
ARTICLE VII
Confidentiality and Non-Disclosure
7.1 Reseller Obligations.
(a) Reseller recognizes, acknowledges and agrees that during the Term,
nFront may furnish to Reseller certain technical and commercial information,
including but not limited to, designs, procedures, formulas, discoveries,
inventions, improvements, innovations, concepts and ideas, lists of customers,
computer programs, business methods, and plans for future developments
("nFront's Confidential Information") which is the confidential, proprietary
property of nFront. Reseller recognizes, acknowledges and agrees that nFront's
Confidential Information was not previously known to the Reseller and is to be
maintained in secrecy and confidence by Reseller and Reseller's employees,
agents or representatives to whom Reseller discloses any of nFront's
Confidential Information. Reseller agrees for itself and for each of its
employees, agents or representatives to whom Reseller discloses any of nFront's
Confidential Information that such information shall be used only in accordance
with the terms, covenants, conditions and limitations of this Agreement, and not
for the benefit of or for, directly or indirectly, Reseller or any of its
employees, agents or representatives. Information made available to the general
public by nFront and information obtained from third parties not associated with
nFront shall not be considered to be nFront's Confidential Information, except
for information received from third parties that Reseller knows or should have
known was obtained illegally or in violation of this Agreement. In the event
Reseller or a representative of Reseller is requested by law, order of court or
any agency to disclose any of nFront's Confidential Information, Reseller shall
give nFront prompt notice of such request so that nFront may seek an appropriate
protective order. If, in the absence of a protective order, Reseller or a
representative of Reseller is nonetheless compelled by law to disclose any of
nFront's Confidential Information, Reseller or a representative of Reseller, as
the case may be, may disclose such information in such proceeding without
liability hereunder; provided, however, that Reseller gives nFront written
notice of the information to be disclosed within seventy-two (72) hours after
receipt of such order by Reseller and, upon nFront's request and at its expense,
Reseller shall use its best efforts to obtain assurances that confidential
treatment shall be accorded to such information.
(b) In the event this Agreement is terminated for any reason, the
Reseller agrees to return promptly nFront's Confidential Information, including
all copies thereof, to nFront, or to deliver all such information promptly to
such party as may be designated by nFront. Reseller further agrees thereafter
not to use or disclose nFront's Confidential Information in any manner
whatsoever without the prior written approval of nFront unless and until such
information shall lawfully become generally known in the public domain through
no fault of the Reseller or breach by the Reseller of the covenants contained
herein.
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(c) Reseller shall disclose nFront's Confidential Information to Banks
only to the extent necessary to enable such customers to use the nHome System,
and only after any such Bank executes an agreement in form and substance
acceptable to nFront, acknowledging the confidential nature of such information
and setting forth the appropriate treatment of such information.
7.2 nFront's Obligations.
(a) nFront recognizes and agrees that, except as otherwise provided
herein, certain business information provided by the Reseller to nFront, not
related to nFront's ongoing business ("Reseller's Confidential Information"), is
the proprietary property of Reseller, is not previously known to nFront and is
to be maintained in secrecy and confidence, except as provided herein, and used
only in accordance with the terms, covenants, conditions and limitations of this
Agreement. Information made available to the general public and information
obtained from third parties not associated with Reseller shall not be considered
to be Reseller's Confidential Information, except for information received from
third parties that nFront knows or has known was obtained illegally or in
violation of this Agreement. In the event nFront or a representative of nFront
is requested by law, order of court or any agency to disclose any of Reseller's
Confidential Information, nFront shall give Reseller prompt notice of such
request so that Reseller may seek an appropriate protective order. If, in the
absence of a protective order, nFront or a representative of nFront is
nonetheless compelled by law to disclose any of Reseller's Confidential
Information, nFront or a representative of nFront, as the case may be, may
disclose such information in such proceeding without liability hereunder;
provided, however, that nFront gives Reseller written notice of the information
to be disclosed within seventy-two (72) hours after receipt of such order by
nFront and, upon Reseller's request and at its expense, nFront shall use its
best efforts to obtain assurances that confidential treatment shall be accorded
to such information.
(b) In the event this Agreement is terminated for any reason, nFront
agrees to return promptly Reseller's Confidential Information, including all
copies thereof, to Reseller or to deliver all such information promptly to such
party as may be designated by Reseller. nFront further agrees thereafter not to
use or disclose Reseller's Confidential Information in any manner whatsoever
without the prior written approval of Reseller unless and until such information
shall lawfully become generally known in the public domain through no fault of
nFront or breach by nFront of the covenants contained herein.
ARTICLE VIII
Term and Termination
8.1 Term. This Agreement shall commence as of the date hereof and shall remain
in effect (unless sooner terminated pursuant to Section 8.2 hereof) for five (5)
years (the "Term"). It shall be renewed automatically without interruption for
successive five-year terms, unless, not less than ninety (90) days before the
end of any Term, either nFront or Reseller notifies the other party in writing
of its election (at its sole option, for any reason or for no reason) not to
renew. Any such renewal periods shall be considered an extension of and part of
the Term.
8.2 Right to Terminate. Notwithstanding any other provision hereof, this
Agreement may be terminated either (i) by mutual agreement of the parties
hereto; (ii) by either party at any time if the other party has materially
breached any of the provisions hereof and, if the breach is curable, has failed
to cure such alleged breach within thirty (30) days after written notice thereof
in the case of failure to pay when due amounts owing to such party, and within
sixty (60) days in case of all other alleged curable breaches; or (iii) by
either party immediately and without the giving of notice, in the event that
either party shall become insolvent, or shall ask its creditors for a
moratorium, or shall file a voluntary petition in bankruptcy, or shall be
adjudicated as a bankrupt pursuant to an involuntary petition, or shall suffer
appointment of a temporary or permanent receiver, trustee, or custodian for all
or a substantial part of its assets which shall not be discharged within sixty
(60) days. In the event either party materially breaches any of the provisions
hereof, and such breach is not curable, this Agreement shall be immediately
terminable by the non-breaching party. Without limiting the foregoing, any
violation of Articles VI, VII and IX hereof shall constitute a noncurable breach
and if either party commits such a breach, this Agreement shall be terminable
immediately by the non-breaching party.
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8.3 Effect of Termination.
(a) Any termination of this Agreement shall not release Reseller from
paying any amount which may then be owing to nFront. In the event of any
termination of this Agreement, all obligations owed by Reseller to nFront shall
become immediately due and payable on the effective date of termination whether
otherwise then due or not (without presentation, demand, protest or notice of
any kind, all of which are hereby waived by Reseller); and nFront may offset and
deduct from any or all amounts owed to Reseller, if any, any or all amounts owed
by Reseller to nFront, rendering to Reseller the excess, if any.
(b) In the event of termination of this Agreement by either party or
automatically as provided herein, it is understood that nFront shall not have
obligation to provide further access to Reseller's Customer Base, however if
nFront continues to provide access to all or any part of Reseller's Customer
Base after termination of this Agreement, such continuation shall not be
construed as a renewal of this Agreement for any further term nor as a waiver of
such termination.
(c) Upon termination of this Agreement, Reseller shall return to
nFront, promptly and without charge to nFront, all Documentation, price lists,
maintenance and policy manuals, sales aids and other publications of nFront
relating to the nHome System which Reseller has on hand. Reseller shall
thereupon immediately cease using any trademarks, tradenames, service marks or
other identifying marks on any of its materials.
(e) Reseller shall be solely responsible for all commitments incurred
or assumed by it during the Term or thereafter, and nFront shall not be held
responsible in any manner therefor, irrespective of any suggestion or
recommendation with respect thereto by nFront or any of its employees or
representatives unless nFront has expressly agreed in writing to assume the
responsibility.
ARTICLE IX
Non-Competition Agreement
9.1 During the Term Reseller shall not, directly or indirectly, individually, on
behalf of or in conjunction with any other person or legal entity, or for or on
behalf of any person, corporation, partnership, company, trade association,
agent, agency or other entity, engage in the business of selling or distributing
within the Territory, any of the nHome System that Reseller purchase from any
source other than nFront.
ARTICLE X
Indemnification; Other Relief
10.1 Indemnification by Reseller. Reseller shall indemnify, defend and hold
harmless nFront, its officers, directors, shareholders, employees, agents and
affiliates from and against any claims, losses, damages, liabilities or expenses
(including, without limitation, reasonable attorneys' fees and expenses)
(collectively, "Claims") resulting from or arising out of Reseller's use or
misuse of the nHome System or any part thereof by Reseller or any Bank included
in the Customer Base, any misrepresentations made by Reseller with respect to
the nHome System or a breach of any of the provisions of this Agreement,
provided, however, that in respect of any Claims hereunder against Reseller that
arise out of or result from any alleged use or misuse of the nHome System or any
part thereof by Reseller or any Bank included in the Customer Base or any
alleged misrepresentation made by Reseller with respect to the nHome System,
Reseller shall be notified promptly of such Claim in writing and shall be given
authority, control and full and proper information and assistance in the defense
and settlement of such Claim. Notwithstanding the foregoing, Reseller shall not
have the authority to settle or compromise any Claim in a manner that indicates
that nFront contributed to or was responsible for the cause of any such Claim
unless nFront consents in writing to such settlement.
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10.2 Indemnification by nFront. Subject to the limitations set forth in Section
10.5 hereof, nFront shall indemnify, defend and hold harmless Reseller, its
officers, directors, shareholders, employees, agents and affiliates from and
against any claim, suit or proceeding based upon an allegation that the nHome
System (or any portion thereof) infringe upon or misappropriate any copyright,
patent, trademark or trade secret of any third party, provided that nFront is
notified promptly of such claim, suit or proceeding in writing and is given
authority, control and full and proper information and assistance in the defense
and settlement of such claim, suit or proceeding. If the nHome System is finally
determined by a court of competent jurisdiction to constitute an infringement of
any patent, copyright, trademark or other trade secret of a third party and its
use is enjoined, nFront shall either:
(a) procure the right for Reseller to continue to use the nHome System
under this Agreement; or
(b) replace or modify the nHome System with a version of the nHome
System that is not so infringing and that satisfies this provision of this
Agreement.
10.3 Arbitration. The parties to this Agreement agree that any controversies or
claims arising out of or relating to this Agreement (including, without
limitation, any alleged breach thereof or the termination or non-renewal
thereof) shall be settled by arbitration pursuant to the Federal Arbitration
Act, 9 U.S.C. ss. 1 et. seq., in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. The parties hereto further agree
that the arbitrators in any such arbitration shall not be authorized to award
any punitive damages in connection with any controversy or a claim settled by
arbitration hereunder. The decision of the arbitrator in any such arbitration
shall be final and binding upon the parties and judgment upon the award may be
entered in any court having jurisdiction thereof. Any arbitration shall take
place in Atlanta, Georgia, and the expenses of the arbitrators shall be
allocated by such arbitrators. The arbitration shall be conducted before a panel
of three (3) arbitrators, one selected by Reseller, one selected by nFront, and
one selected by mutual agreement of the arbitrators selected by Reseller and
nFront.
10.4 Injunctive Relief. Notwithstanding the provisions of Section 10.3 hereof,
the parties acknowledge and agree that any breach of the provisions of Articles
VI, VII or XI of this Agreement shall result in irreparable harm to nFront for
which no adequate remedy at law exists. Accordingly, upon any such breach,
nFront shall be entitled to injunctive or other appropriate extraordinary
relief, such relief being in addition to, and not in lieu of, any other rights
and remedies, including the award of damages, available at law or in equity.
Reseller acknowledges and agrees that no serious harm to it shall result from
the entry of any such equitable relief against it, and therefore any bond
required of nFront in connection with such relief shall be set in an amount not
in excess of One Thousand Dollars ($1,000.00). Any violation of the restraints
set forth herein shall automatically extend the period of such restraints for
the amount of time such violation continues, provided nFront seeks enforcement
promptly after discovery of such violation. nFront shall not be required to
prove money damages to enforce any provision of this Agreement.
10.5 LIMITATION OF LIABILITY. IN NO EVENT SHALL NFRONT BE LIABLE FOR ANY LOSS OF
PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF ACTION
ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE NHOME SYSTEM OR NON-DELIVERY
OF NHOME SYSTEM EVEN IF NFRONT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. SUBJECT TO THE MAXIMUM LIABILITY SET FORTH IN THIS PARAGRAPH, IN NO
EVENT SHALL NFRONT'S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT
EXCEED THE AMOUNT PAID TO NFRONT BY RESELLER UNDER THIS AGREEMENT WITHIN THE
THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF SUCH CLAIM. IN NO
EVENT SHALL NFRONT'S MAXIMUM, CUMULATIVE LIABILITY FOR ALL CLAIMS UNDER THIS
AGREEMENT EXCEED $25,000 OR ALL AMOUNTS PAID BY RESELLER TO NFRONT HEREUNDER,
WHICHEVER IS LESS. NO CLAIM MAY BE BROUGHT BY RESELLER UNDER THIS AGREEMENT MORE
THAN TWO (2) YEARS AFTER ACCRUAL OF SUCH CLAIM.
10
ARTICLE XI
Miscellaneous Provisions
11.1 Waiver. Any failure of a party to comply with any obligation, covenant,
agreement or condition herein may be expressly waived in writing by the other
party, but such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
11.2 Entire Agreement. This Agreement, the exhibits and schedules hereto
constitutes the entire understanding of the parties with respect to the subject
matter of this Agreement and are intended to supersede all prior understandings,
whether written or oral, between the parties with respect thereto.
11.3 No Third Party Beneficiary Rights. No provision of this Agreement is
intended or shall be construed to provide or create any third party beneficiary
right or any other right of any kind in any Bank or any client, customer,
affiliate, insurer, lender, shareholder, partner, officer, director, employee or
agent of any party hereto, or in any other person.
11.4 Amendment; Binding Effect; Assignment. No amendment, modification or
alteration of the terms of this Agreement shall be binding unless in writing and
executed by the parties hereto. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors, assigns, heirs, executors and administrators. Reseller may not
assign this Agreement, in whole or in part, or any of its rights or obligations
hereunder without the prior written consent of nFront, and any such attempted
assignment shall be void.
11.5 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Georgia, without giving
effect to the conflict-of-laws principles thereof.
11.6 Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the Term,
such provision shall be fully severable. This Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement.
11.7 Counterparts. This Agreement may be executed simultaneously or in two or
more counterparts, each of which together shall constitute one and the same
instrument and shall be deemed an original hereof.
11.8 Notices. All notices required or permitted under this Agreement shall be
made in writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail (return receipt requested),
U.S. mail or facsimile. All notices shall be addressed to the parties at the
respective addresses indicated above.
11.9 Survival. The provisions of Articles V, VI, VII, VIII, IX, X, and XI shall
survive any termination or expiration of this Agreement.
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
NFRONT, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Its: President
RESELLER
By: /s/ J. Xxxxxxx Xxxxx
------------------------------------------
Its: Senior Vice President
12
EXHIBIT A
Refer to the first column of Exhibit D
13
EXHIBIT B
14
EXHIBIT C
15
EXHIBIT D
Price Royalty*
$[++++] 28%
1) NHOME SYSTEM
a) Products and Services
i) Five Secure Product Applications (Select from the following)
(1) Checking
(2) Savings
(3) CD
(4) Mortgage
(5) Consumer Loan
(6) Overdraft Protection
(7) Equity Line
ii) Additional Secure Applications
(1) Quiz
(2) Survey
(3) Guest Book
(4) Xxxx Payment
iii)Secure Database Retrieval
b) Hot Product Link
c) Online Banking
i) View Account Balances and Histories
ii) Checking
iii) Savings
iv) CDs/XXX
v) Loans
vi) Transfer Between Checking and Savings Account
d) Online Banking Demo
e) Frequently Asked Questions
f) Marketing Section
g) What's New
h) Bank Information
i) Interactive Calculators
i) Loans (Payment and total Interest)
ii) Maximum Loan (Payment and total Interest)
iii) College Planning (Excess or deficiency, plus savings tips)
iv) Mortgage (Calculates principal and interest mortgages)
v) Retirement (Future value calculations)
j) Contact Us
k) Search Engine
l) Email
m) Xxxx Payment Interface
n) Administrative Site
o) Featured Banks Spotlight
2) SYSTEM SUPPORT (MONTHLY) $[+++] 0%
3) CUSTOMER FEES
a) Xxxx Payment Customer Set-up (per customer) $[+++] 28%
b) On-line Banking Customer Set-up (per customer) $[+++] 28%
16
c) Application (per application) $[+++] 0%
4) CUSTOMER SERVICE FEES ($[++++] MONTHLY MINIMUM)
a) Online Banking Customer Maintenance $[+++] 0%
b) Xxxx Payment Maintenance (up to 20, thereafter [++++]) $[+++] 0%
5) NHOME OPTIONS
a) nForm (10 Frames) $[++++] 28%
b) Site Map Construction $[++++] 28%
c) Management Reporting $[++++] 28%
d) Bank Specific Branding (Annually) $[++++] 28%
e) Xxxx Payment Initialization $[++++] 50%
f) Web TV Site Quote 28%
g) Telephone Xxxx Statement Quote 0%
*The royalty percentage is based upon the actual sales dollars
contracted by Reseller to Customer. Example: If Reseller charges
$[++++] for initial setup then nFront would receive $[++++] and
Reseller would receive $[++++]. The prices listed in Exhibit 4 are
nFront's minimum price level. All contracted sales dollars, on any 0%
royalty items, above nFront's minimum price will be due to Reseller in
its entirety.
