Exhibit 10.2
INFORMATION TECHNOLOGY INC.
EQUIPMENT SALE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"), and the
"Customer" identified below.
I. PURCHASE
1.1 Customer hereby purchases from Vendor and Vendor hereby sells to
Customer the equipment identified in Appendix A (the "Equipment"), upon the
terms set forth in this agreement.
II. DELIVERY
2.1 Delivery and installation of the Equipment will be made by the
manufacturer of the Equipment identified in Appendix A (the "Manufacturer"), at
Customer's address set forth below. Customer agrees to have a site adequately
and properly prepared, in accordance with Manufacturer's instructions, to
receive and accept delivery of the Equipment. In no event shall Vendor be
responsible to Customer for any delays in delivery or installation or any
damages to Customer resulting from such delays.
III. CONSIDERATION
3.1 PURCHASE PRICE. As and for the purchase price for the Equipment,
Customer agrees to pay Vendor and Vendor agrees to accept from Customer, the
purchase price specified in Appendix A.
3.2 TAXES AND OTHER CHARGES. In addition to the purchase price, Customer
shall pay all transportation charges and all taxes (including, without
limitation, sales, use, privilege, ad valorem or excise taxes) and customs
duties paid or payable by Vendor, however designated, levied or based on amounts
payable to Vendor under this agreement, but exclusive of federal, state and
local taxes based on Vendor's net income. If additional labor and rigging are
required for installation due to Customer's special site requirements, Customer
will pay those costs, including costs to meet union or local law requirements.
Customer shall not deduct from payments to Vendor any amounts paid or payable to
third parties for transportation charges, customs duties or taxes, however
designated.
3.3 MANNER OF PAYMENTS. The purchase price and other charges arising under
this agreement shall be payable by Customer to Vendor in the following manner:
(A) A percentage of the purchase price, as specified in Appendix A, shall be
payable upon execution of this agreement by Customer; the receipt or deposit of
such payment, however, shall not constitute Vendor's acceptance of this
agreement.
(B) The balance of the purchase price, together with any transportation
charges and any taxes and duties theretofore incurred by Vendor, shall be
payable upon delivery of the Equipment to Customer.
(C) Any taxes, duties, or other charges incurred by Vendor following
delivery of the Equipment shall be payable within ten (10) days of receipt by
Customer of Vendor's invoice therefor.
3.4 CURRENCY. The purchase price and any other charges arising under this
agreement shall be invoiced and be payable in U.S. Dollars.
3.5 LATE PAYMENT. Customer shall pay a late payment charge of one and
one-half percent (1 1/2%) per month, or the maximum late any payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereof) that such payment
is not made following its due date.
IV. TITLE
4.1 Until such time as the purchase price and any other charges payable to
Vendor as of the date of delivery have been paid in full, the Equipment and all
instruction manuals therefor shall remain the property of Vendor and, at the
option of Vendor, shall be returned to Vendor at Customer's expense in the event
the purchase price is not paid as hereinabove provided.
V. SECURITY
5.1 Vendor reserves and Customer grants to Vendor a security interest in the
Equipment as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the purchase price and other
charges as specified in Section III above. A copy of this agreement may be filed
in appropriate filing offices at any time after signature by Customer as a
financing statement or Vendor may require and Customer shall execute a separate
financing statement for purposes of perfecting Vendor's security interest
granted pursuant to the provisions of this paragraph.
VI. CUSTOMER OBLIGATIONS
6.1 RISK OF LOSS. From and after the date of delivery, the risk of loss or
damage to the Equipment shall be on the Customer.
6.2 OPERATION. Customer acknowledges and agrees that it is exclusively
responsible for the operation, supervision, management and control of the
Equipment, including, but not limited to, providing adequate training for its
personnel, instituting appropriate security procedures, and implementing
reasonable procedures to examine and verify all output before use. Vendor shall
have no responsibility or liability for Customer's selection or use of the
Equipment or any associated equipment.
VII. WARRANTIES
7.1 WARRANTY. Vendor warrants to Customer that it has the right to transfer
title of the Equipment to Customer. Vendor's sole liability under this warranty
shall be to obtain any title or authorization necessary to transfer such title
to Customer.
7.2 DISCLAIMER. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES
AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.3 MANUFACTURER'S WARRANTY. Customer expressly understands and agrees that
warranties regarding patents, materials, workmanship or use of the Equipment
(the "Manufacturer's Warranty"), if any, are made exclusively by the
Manufacturer and not by Vendor, and if made, shall be encompassed within a
separate agreement. Customer's exclusive remedy under Manufacturer's Warranty
shall be as provided therein and shall lie exclusively against and be obtainable
only from the Manufacturer, and Customer expressly agrees that it shall have no
claim or cause of action against Vendor in the event the Manufacturer is for any
reason unwilling or unable to perform under the terms of Manufacturer's
Warranty.
7.4 LIMITATION OF LIABILITY. Customer expressly agrees that Vendor's
responsibilities in the event of its breach of the warranties contained in
paragraph 7.1 of this agreement are as set forth in said paragraph. Vendor's
liability for damages, regardless of the form of action shall not exceed the
purchase price set forth in Appendix A to this agreement and shall arise only if
the remedies set forth in paragraph 7.1 are not fulfilled by Vendor. Customer
further agrees that Vendor will not be liable for any lost profits, or for any
claim or demand against Customer by any other party. IN NO EVENT WILL VENDOR BE
LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. No action, regardless of form, arising out of the
transactions under this agreement, may be brought by either party more than one
(1) year after the cause of action has accrued, except that an action for
non-payment may be brought within one (1) year after the date of the last
payment.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VIII. DEFAULT
8.1 REMEDY. Upon the occurrence of an event of default, as hereinafter
defined, by Customer, if the Equipment has theretofore been delivered, Vendor
may recover, together with any incidental damages, any unpaid portion of the
purchase price of the Equipment as specified in Appendix A hereto. If the
Equipment has not been delivered, in which event Vendor may withhold delivery of
such Equipment, or if the Equipment is returned to Vendor upon Vendor's election
pursuant to Section IV, Vendor shall resell the Equipment. Upon such resale,
Vendor shall recover from Customer the difference between the unpaid portion of
the purchase price, as specified in Appendix A, and the resale price, together
with any incidental damages, including expenses of resale, sustained by Vendor
by reason of Customer's breach. If the resale price exceeds the unpaid portion
of the purchase price and Vendor's incidental damages, Vendor shall remit the
excess to Customer.
8.2 EVENTS OF DEFAULT. As utilized in this agreement, an event of default is
defined as any of the following:
(A) Customer's failure to pay any amounts required to be paid to Vendor
under this agreement on a timely basis;
(B) Until the purchase price has been paid in full, any attempt by Customer
to assign, sell, mortgage, or otherwise convey the Equipment;
(C) Prior to the payment in full of the purchase price, Customer causing or
permitting any encumbrance, of any nature whatsoever, to attach to Customer's
interest in the Equipment in favor of any person or entity other than Vendor;
(D) The entry of any order for relief under any provision of the federal
bankruptcy code in any bankruptcy proceedings initiated by or against Customer;
or
(E) Customer's breach of any of the terms or conditions of this agreement.
IX. GENERAL
9.1 TITLES. Titles and paragraph headings are for reference purposes only
and are not to be considered a part of this agreement.
9.2 FORCE MAJEURE. No party shall be liable for delay in performance
hereunder due to causes beyond its control, including but not limited to acts of
God, fires, strikes, delinquencies of suppliers, intervention of any
governmental authority or acts of war and each party shall take steps to
minimize any such delay.
9.3 WAIVER. No waiver of any breach of any provision of this agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the same or
any other provisions hereof and no waiver shall be effective unless made in
writing and signed by an authorized representative of the party to be charged
therewith.
9.4 SEVERABILITY. In the event that any provision of this agreement shall be
illegal or otherwise unenforceable, such provision shall be severed from this
agreement and the entire agreement shall not fail on account thereof, the
balance of the agreement continuing in full force and effect.
9.5 NOTICES. Any notice which either party hereto is required or permitted
to give hereunder shall be addressed to the party to be charged therewith at the
address set forth below and shall be given by certified or registered mail. Any
such notice shall be deemed given on the date of deposit in the mail.
9.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ THIS
AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PARTIES
FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT TO IT
CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS OF THE
AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS, CONDITIONS,
WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING
TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER AGREE THAT THIS
AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY A PRIOR OR EXISTING
COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF TRADE OR CUSTOM, OR BY
ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO THIS AGREEMENT OR
OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR OTHER INSTRUMENT
COVERING THE EQUIPMENT HEREIN SPECIFIED, IT IS UNDERSTOOD AND AGREED THAT SUCH
PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S INTERNAL USE AND PURPOSES
ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
9.7 GOVERNING LAW. This agreement is accepted in the State of Nebraska, and
shall be enforced in accordance with and governed by the laws of the State of
Nebraska.
9.8 CHOICE OF FORUM. Any action arising out of or related to this agreement
or the transaction herein described, whether at law or in equity, may be
instituted in and litigated in the state or federal courts of the State of
Nebraska. In accordance herewith, the parties hereto submit to the jurisdiction
of the courts of said state. Any party being not a resident of Nebraska at the
time of suit hereby appoints the Secretary of State of Nebraska as its agent for
receipt of service of process.
9.9 ATTORNEY'S FEES. In the event that any action or proceeding is brought
in connection with this agreement the prevailing party therein shall be entitled
to recover its costs and reasonable attorney's fees.
9.10 EFFECTIVE DATE. This agreement shall be effective on the date accepted
and executed by an authorized representative of Vendor.
CUSTOMER: VENDOR:
Xxxxx River Bankshares, Inc. INFORMATION TECHNOLOGY, INC.
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Signature: Signature:
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Name: Name:
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Title: Title:
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Address: 000 X. Xxxxxx Xxxxxx, Xxxxx #00 Address: 0000 Xxx Xxxxxx Xxxx
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Xxxxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
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Date: 10/25/99 Date Accepted:
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Exhibit 10.2(Continued)
Appendix A1-Unisys Hardware/PC Systems
Xxxxx River Community Bank, 000 Xxxx Xxxxxx Xx., Xxxxxxxxxxxx, XX 00000
Item Qty Style Number Description List % Disc Selling Monthly
Price Surety
Small File Server
2 ES202131-GXN SVR:ES2023 DUAL PII/III NT $ 2,800.00 $ 2,800.00 $ 24.00
2 ESS202101-N SYS MGT:2X $ 2.00 $ 2.00 $ 4.00
2 DIM10072-128 MEM:128MB DIM $ 800.00 $ 800.00 $ 12.00
1 EVG2100-P DISPLAY:15" PERFORM COL $ 300.00 $ 300.00 $ -
2 ADP68501-FTF ADPTR:68 TO 50 PIN FEMAL $ 68.00 $ 68.00 $ -
4 HDL917-W DISK:9GB 1"UW $ 2,320.00 $ 2,320.00 $ 32.00
2 CPU3500-512 500MZ PIII W/ACT FAN-HEATSINK $ 1,670.00 $ 1,670.00 $ 40.00
1 PWM1-PS2 MOUSE:2 BUTTON MOUSE/PS2 $ 20.00 $ 20.00 $ -
2 NTS40-L O/S: NT 4.0 SERVER $ 2,210.00 $ 2,210.00 $ 32.00
2 TWM22047-CHK Director Check Load $ 60.00 $ 60.00 $ -
2 TWM22045-COL Director Cold Load $ 60.00 $ 60.00 $ -
2 TWM22046-SCN Director Scanner Sw Load $ 60.00 $ 60.00 $ -
1 TWM10051-NTS ArcserveIT Workgroup Edition For Windows NT Load $ 28.00 $ 28.00 $ -
2 TWM10082-NT3 InoculateIT Workgroup edition for Win NT Server Load $ 57.00 $ 57.00 $ -
2 TWM10051-DRC ArcserveIT NT Disaster Recovery Load $ 56.00 $ 56.00 $ -
2 TWM10024-COM PII Teller S/W Load Commercial $ 57.60 $ 57.60 $ -
2 TWM60001-001 Plus/PII Teller/Primier II Server Label $ - $ - $ -
1 PCK104-SKB KEYBD:SPACE SAVER $ 35.00 $ 35.00 $ -
ITI Check Print Server - SVGA - 64MB
1 D8440-AV SYS:VLi8 BASE SYS W/UNISYS KIT $ 1.00 $ 1.00 $ -
1 D7880-AV ACC:UNISYS DT KIT $ 1.00 $ 1.00 $ -
1 D2828-A DISPLAY:15" COLOR HP52 $ 215.00 $ 215.00 $ 4.00
1 D7850-AV SYS:VLi8 SMALL FORM FACTOR $ 555.00 $ 555.00 $ 15.00
1 D8451-AV DISK:FDD SMALL FORM FACTOR $ 1.00 $ 1.00 $ -
1 C4735-AV KEYBD:VL KYBD W/WIN95KEY $ 30.00 $ 30.00 $ -
1 D8747-AV PROC: C500MHZ CPU $ 306.00 $ 306.00 $ -
1 D6502-AV MEM:64MB SDRAM NON-ECC $ 130.00 $ 130.00 $ -
1 D8446-AV DISK:8.4GGB IDE ULTRA ATA33 $ 190.00 $ 190.00 $ 9.00
1 D8450-AV CDR:24XIDE CDROM $ 70.00 $ 70.00 $ 4.00
1 D8471-LAV O/S:NT 4.0 FOR VLI 8 $ 110.00 $ 110.00 $ -
1 D8453-AV O/S:NT 4.0 RECOVERY CD VLI8 $ 1.00 $ 1.00 $ -
1 S4507-A ACC:VECTRA Basic Integration Service $ 79.00 $ 79.00 $ -
1 D7576710-AV Print Server Label $ - $ - $ -
TELLER Workstation
4 D9046-A SYS:SMC C400,6.4G, 32M, WIN $ 4,316.00 $ 4,316.00 $ -
4 TD86016 14" Color Display $ 564.00 $ 564.00 $ -
4 D7476716-AV Premier II Teller Label $ - $ - $ -
4 D7577004-AV Desktop Load - Combo $ 112.00 $ 112.00 $ -
DEPCON Workstation
1 D8120-AV SYS:VLI7 Base $ 455.00 $ 455.00 $ -
1 D7880-AV ACC:UNISYS KIT $ 1.00 $ 1.00 $ -
1 D6502-AV MEM:64MB DIM $ 130.00 $ 130.00 $ 4.00
1 D8464-AV DISK:8.4GB IDE ULTRA ATA33 $ 190.00 $ 190.00 $ 9.00
1 D8072-AV CDR:48XIDE CDROM $ 70.00 $ 70.00 $ 4.00
1 D8470-AV KEYBD:VL KYBD W/WIN95KEY $ 30.00 $ 30.00 $ -
1 D8927-AV PROC: C500MHZ CPU $ 159.00 $ 159.00 $ -
1 D8478-AV LAN HW:3COM LAN CARD $ 50.00 $ 50.00 $ -
1 D8471-EAV O/S: NT 4.0 FOR VEI 7/8 $ 110.00 $ 110.00 $ -
1 D2828-A 15" Color Monitor $ 215.00 $ 215.00 $ -
1 S4507-A ACC:VECTRA Basic Integration Service $ 79.00 $ 79.00 $ -
1 D8468-AV O/S: NT 4.0 RECOVERY CD VLI8 $ 1.00 $ 1.00 $ -
Check/Director CD Authoring Workstation
1 D8440-AV SYS:VLi8 BASE SYS W/UNISYS KIT $ 1.00 $ 1.00 $ -
1 D7950-AV SYS:VLi8 DESKTO[P BASE SYS $ 581.00 $ 581.00 $ 15.00
1 D6502-AV MEM:64MB SDRAM NON-ECC $ 130.00 $ 130.00 $ -
2 D8465-AV DISK: $ 280.00 $ 280.00 $ 4.00
1 D6951-A ACC:SCSI CONTROL $ 250.00 $ 250.00 $ -
1 D2828-A DISPLAY:15" COLOR HP52 $ 215.00 $ 215.00 $ 4.00
1 D84790-AV DISK:32X IDE CDROM $ 70.00 $ 70.00 $ 4.00
1 D8478-AV LAN HW:3COM LAN CARD $ 50.00 $ 50.00 $ -
1 D8472-LAV O/S:WIN98 FOR VLI 8 $ 10.00 $ 10.00 $ -
Page 1
Appendix A1-Unisys Hardware/PC Systems
Xxxxx River Community Bank, 000 Xxxx Xxxxxx Xx., Xxxxxxxxxxxx, XX 00000
Item Qty Style Number Description List % Disc Selling Monthly
Price Surety
1 D8445-AV PROC:500MZ PIII $ 345.00 $ 345.00 $ -
1 C4735-AV KEYBD:VL KYBD W/WIN95KEY $ 30.00 $ 30.00 $ -
1 D7880-AV ACC:UNISYS DT KIT $ 1.00 $ 1.00 $ -
1 TD076143 SCSI Wide To narrow Converter $ 35.00 $ 35.00 $ -
1 D7576712-AV CD Authoring Workstation Label $ - $ - $ -
1 D7577004-AV Desktop Load - Combo $ 28.00 $ 28.00 $ -
1 S4507-A ACC:VECTRA Basic Integration Service $ 79.00 $ 79.00 $ -
1 D8455-AV O/S:WIN98 RECOVERY CD $ 1.00 $ 1.00 $ -
Client Workstations - 64MB - SVGA Color
4 D8440-AV SYS:VLi8 BASE SYS W/UNISYS KIT $ 4.00 $ 4.00 $ -
4 D7850-AV SYS:VLi8 DESKTOP BASE SYS $ 2,220.00 $ 2,220.00 $ 45.00
4 D6502-AV MEM:64MB SDRAM NON-ECC $ 520.00 $ 520.00 $ -
4 D8901-a DISPLAY:17" MONITOR $ 1,224.00 $ 1,224.00 $ 15.00
4 D84470AV DISK:6.4GB IDE ULTRA ATA33 $ 680.00 $ 680.00 $ 18.00
4 D8450-AV DISK: 24XIDE CDROM $ 280.00 $ 280.00 $ 12.00
4 D8472-LAV O/S:WIN98 FOR VLI 8 $ 40.00 $ 40.00 $ -
4 D7880-AV ACC:UNISYS DT KIT $ 4.00 $ 4.00 $ -
4 D8452-AV ACC: COVER PLATE $ 4.00 $ 4.00 $ -
4 C4735-AV KEYBD:VL KYBD W/WIN95KEY $ 120.00 $ 120.00 $ -
4 D8731-AV PROC: C466MHZ CPU $ 600.00 $ 600.00 $ -
4 D7576702-AV Director Client Label $ - $ - $ -
4 D757004-AV Desktop Load - Combo $ 112.00 $ 112.00 $ -
4 S4507-A ACC: VECTRA Basic Integration Service $ 316.00 $ 316.00 $ -
4 D8455-AV O/S:WIN98 RECOVERY CD $ 4.00 $ 4.00 $ -
Operations Workstations -128MB - Color
3 D8160-AV SYS: VEi7-8 Base Sys $ 1,419.00 $ 1,419.00
3 D7880-AV ACC: Unisys Kit $ 3.00 $ 3.00
3 D8462-AV PROC: 500MHZ PIII CPU $ 1,035.00 $ 1,035.00
3 D6503-AV MEM: 128MD SDRAM $ 705.00 $ 705.00
3 D8470-AV KEYBD $ 90.00 $ 90.00
3 D8745-AV DISK: 6.4MB $ 510.00 $ 510.00
3 D8072-AV DISK: 48X CDROM $ 210.00 $ 210.00
3 D8478-AV LAN:3COM Card $ 150.00 $ 150.00
3 D8720-AV O/S Windows 98 Recovery CD $ 3.00 $ 3.00
3 D4545-A ACC: Amplified Speakeres $ 225.00 $ 225.00
3 D8901-A 17" Color Display $ 918.00 $ 918.00
Connect3 Communication Server
1 D7029-AV SYS:LC3 450MZ HS W/CDROM $ 1,730.00 $ 1,730.00 $ 25.00
1 D6098-AV MEM:128MB SDRAM $ 218.00 $ 218.00 -
1 D5025-AV ACC:ULTA/WIDE SCSI ADPT $ 208.00 $ 208.00 -
1 D8901-A 17" Color Monitor $ 306.00 $ 306.00 -
1 D4289-AV DISK:LC3 9GB HOTSWAP HDD $ 617.00 $ 617.00 $ 12.00
1 D2199-A ACC:HDD TRAYS 5.5" H/S $ 69.00 $ 69.00 $ -
1 D5013-AV ACC: 10/100TX PCI NIC LAN $ 94.00 $ 94.00 $ -
1 D7051-NT O/S:NT PRE-LOAD $ 940.00 $ 940.00 $ 16.00
1 S4523-A Advanced Server Integration Load $ 139.00 $ 139.00 $ -
1 D7075-AV ACC: UNISYS LC3 KIT $ 1.00 $ 1.00 $ -
1 D7053-AV ACC:LC3NT SRV KIT $ 1.00 $ 1.00 $ -
1 D7017-AV ACC:USER MANUAL D5025AV $ 1.00 $ 1.00 -
1 D5983-AV ACC:LC3 HOTSWAP HDD KIT $ 1.00 $ 1.00 $ -
Small Director/Image Server
1 DS200082-BAS SYS:DS/2B BASE NT PKG $ 3,075.00 $ 3,075.00 $ 25.00
1 DSR3500-512 PROC:500MZ/512K $ 835.00 $ 835.00 $ 25.00
1 CAG32-291 ACC:3 DRIVE CAGE INTAKE $ 175.00 $ 175.00 $ 2.00
2 DIM10072-128 MEM:128MB DIM $ 800.00 $ 800.00 $ 12.00
2 HDL91102-C DISK:9GB 10K LVD SCA W/RAILS $ 1,400.00 $ 1,400.00 $ 16.00
1 HDL91102-C DISK:9GB 10K LVD SCA W/RAILS $ 700.00 $ 700.00 $ 8.00
1 CDR1740-SI CDR:17-40X SCSI CD-ROM $ 180.00 $ 180.00 $ 3.00
1 RAD302-PCI CTRL:3CHAN RAID W/O MEM $ 1,825.00 $ 1,825.00 $ 15.00
1 RAD3642-MEM MEM:64M SIM - RAD302-PCI $ 300.00 $ 300.00 $ 4.00
1 RAD302-BAT ACC:CACHE MEM BKUP BATT $ 240.00 $ 240.00 -
1 HDL91102-C DISK:9GB 10K LVD SCA W/RAILS $ 700.00 $ 700.00 $ 8.00
2 HDL18110-C DISK 18GB 10K LVD SCA W/RAILS $ 2,800.00 $ 2,800.00 $ 32.00
2 ETH1010071-PCI COMM HW:10/100MB TX PCI $ 268.00 $ 268.00 -
1 PCI400-1UD CTRL: 1CHAN ULT SCSI DIFF $ 525.00 $ 525.00 $ 3.00
1 INF10051-ANS Arcserv For Windows NT ENTerprise Load $ 28.00 $ 28.00 -
2 B25-LC PWR CORD: LINE CORD $ 2.00 $ 2.00 -
1 INF22040-CON ITI Connect Suite $ 30.00 $ 30.00 -
1 INF22045-COL Director Cold Load $ 30.00 $ 30.00 -
Page 2
Appendix A1-Unisys Hardware/PC Systems
Xxxxx River Community Bank, 000 Xxxx Xxxxxx Xx., Xxxxxxxxxxxx, XX 00000
Item Qty Style Number Description List % Disc Selling Monthly
Price Surety
1 INF22046-SCN Director Scanner Sw Load $ 30.00 $ 30.00 -
1 INF22047-CHK Director Check Load $ 30.00 $ 30.00 -
1 INF10051-DRC Arcserv NT Disaster Recovery Load $ 28.00 $ 28.00 -
2 DSA400-PWR POWER: AC P/S 400W TOWER $ 700.00 $ 700.00 $ 6.00
1 INF22001-SDS S/J Config $ 28.00 $ 28.00 -
3 CBL23341-F3 AC: INT u/WIDE 40IN SCSI $ 180.00 $ 180.00 -
1 ADP687501-FTF ADPTR:68 to 50 PIN FEMAL $ 34.00 $ 34.00 -
1 NTS40-L O/S: NT 4.0 SERVER $ 1,105.00 $ 1,105.00 $ 16.00
NT Proof File Server (PFS)
1 ES202131-GZN SVR:ES2023 DUAL PII/III NT $ 1,400.00 $ 1,400.00 $ 12.00
1 DIM10072-128 MEM: 128MB DIM $ 400.00 $ 400.00 $ 6.00
1 NTS40-L O/S:NT 4.0 SERVER $ 1,105.00 $ 1,105.00 $ 16.00
5 HDS917-W DISK:9GB 1" WIDE SCSI $ 4,000.00 $ 4,000.00 $ 10.00
1 ESS202010-N SYS MGT:2X $ 1.00 $ 1.00 $ 2.00
1 EVG2100-P DISPLAY:15" PERFORM COL $ 300.00 $ 300.00 -
1 TWM10051-DRC ArcservelT NT Disaster Recovery Load $ 27.00 $ 27.00 -
1 TWM22040-CON ITI Connect Suite $ 28.80 $ 28.80 -
1 S4521-A Basic Server Integration Load $ 79.00 $ 79.00 -
3 ETH1010071-PCI COMM: HW:10\100MB TX PCI $ 402.00 $ 402.00 -
1 CPU3500-512 500MZ PIII W/ACT FAN-HEAT SINK $ 835.00 $ 835.00 $ 20.00
1 PWM1-PS2 MOUSE:2 BUTTON MOUSE/PS2 $ 20.00 $ 20.00 -
1 PCK104-SKB KEYBD: SPACE SAVER $ 35.00 $ 35.00 -
1 RAD302-PCI CTRL: 3CHAN RAID W/O MEM $ 1,825.00 $ 1,825.00 $ 15.00
1 RAD3162-MEM MEM: 16M SIM RAD302-PCI $ 55.00 $ 55.00 -
1 RAD302-BAT ACC:CACHE MEM BKUP BATT $ 240.00 $ 240.00 -
Check Image - Reject/Re-Entry Workstation
1 D8120-AV SYS:VE17 BASE BOX $ 455.00 $ 455.00 $ 15.00
1 D8470-AV KEYBD:XXXXXX LOW COST KYBD $ 30.00 $ 30.00 -
1 D8901-A DISPLAY: 17"MONITOR $ 306.00 $ 306.00 $ 5.00
1 D8736-AV PROC:C466 MHZ CPU $ 169.00 $ 169.00 -
1 D6502-AV MEM:64MB SDRAM NON-ECC $ 130.00 $ 130.00 -
1 D8745-AV DISK:6.4GB HDD $ 170.00 $ 170.00 $ 6.00
1 D8472-EAV O/S: WIN98 FOR VEI 7/8 $ 10.00 $ 10.00 -
1 D7880-AV ACC:UNISYS DT KIT $ 1.00 $ 1.00 -
1 D8479-AV KISK:32X IDE CDROM $ 70.00 $ 70.00 $ 4.00
1 D8478-AV LAN HW:3COM LAN CARD $ 50.00 $ 50.00 -
1 D7576717-AV CIP Reject/Reentry Workstation Label - - -
1 D7577004-AV Desktop Load - Combo $ 28.00 $ 28.00 -
1 S4507-A ACC:VECTRA Basic Integration Service $ 79.00 $ 79.00 -
1 D8720-AV O/S: Win98 RECOVERY CD $ 1.00 $ 1.00 -
Printer Equipment
5 EFP9847 V&R Receipt W/Journal - Serial $ 3,875.00 $ 3,875.00 $ 72.00
5 B25-LX PWR CORD: LINE CORD $ 5.00 $ 5.00 -
5 FP10-XP2 10' Dos Cable - 9 Pin to 9 Pin $ 225.00 $ 225.00 -
1 UDS9908-110 UDS9608 8ppm laser printer $ 499.00 $ 499.00 $ 10.00
1 UDS9700-8MB UDS9700 8MB MEMORY $ 99.00 $ 99.00 -
1 EFP9800-SW1 EFP Software Upgrade $ 40.00 $ 40.00 -
1 UDS9718-110 18PPM PRT (110v) $ 1,499.00 $ 1,499.00 -
2 90-9718-025 18ppm Network Rdy (110V) $ 3,698.00 $ 3,698.00 $ 17.00
1 UDS9700-DUP UDS9700 DUPLEX OPTION $ 399.00 $ 399.00 -
3 UDS9700-8MB UDS9700 8MB MEMORY $ 297.00 $ 297.00 -
1 UDS9700-SD5 UDS9700 500 SHT DRAWER $ 349.00 $ 349.00 -
1 90-3034-106 34ppm Printer (110v) $ 2,899.00 $ 2,899.00 $ 30.00
1 UDS9700-2KD UDS9700 2000 SHT DRAWER $ 1,179.00 $ 1,179.00 -
1 UDS9700-16M UDS9700 16MB MEMORY $ 149.00 $ 149.00 -
DEPCON Software
1 DPC300-DPT FILE MGT: DEPARTMENT SVR (DEPCON) $ 2,420.00 $ 2,420.00 $ 17.00
1 DPC300-AFK DEPARTMENTAL ADV FUNCTION KEYS $ 825.00 $ 825.00 $ 6.00
============= ==========================
Appendix A1 Total: $83,358.40 $83,358.40 $ 801.00
============= ==========================
ITI Discount $ 4,167.00 $ 4,167.00
============= ==========================
Appendix A1 Grand Total: $79,191.40 $79,191.40 $ 801.00
Page 0
Xxxxxxxx X0X-Xxxxxxxx Processing Hardware
Xxxxx River Community Bank, 000 Xxxx Xxxxxx Xx., Xxxxxxxxxxxx, XX 00000
Exhibit 10.2(Continued)
Component Qty Style Number Description List % Disc Selling Monthly
Price Surety
Document Processing
1 DP250-SNT SYS:STD HEIGHT NT $ 23,141.00 $ 23,141.00 $ 140.00
1 DP510-MPR PRINTER MASTER $ 1,570.00 $ 1,570.00 $ 7.00
1 DP205-RMJ ENDORSER:REAR 250 MJE $ 2,790.00 $ 2,790.00 $ 15.00
1 DP506-NSO ENDORSER:NO STAMP OPTION $ 1.00 $ 1.00 -
1 DP503-EME ENCODER E138 MICR $ 1,915.00 $ 1,915.00 $ 9.00
1 DP212-SHP STACKER:12POCKETS, STD HT $ 4,458.00 $ 4,458.00 $ 45.00
1 DP500-IQM DOC SW:IMG QUALITY MONTR $ 995.00 $ 995.00 -
2 DP530-CCI ACC:CCITT COMPRESSION $ 9,990.00 $ 9,990.00 $ 92.00
2 DP528-CLR ACC:CLEAR FILTER $ 990.00 $ 990.00 -
1 DP215-SIQ SYS:STD HGT NT IMG MOD $ 7,563.00 $ 7,563.00 $ 13.00
1 DP250-INT DOC SW:IMAGE NT SYS S/W $ 6,000.00 $ 6,000.00 $ 23.00
1 DP529-CFR CAMERA:FRONT REAR $ 13,540.00 $ 13,540.00 $ 174.00
1 DP552-ENI READER:X000.XX CODLINE $ 3,495.00 $ 3,495.00 $ 31.00
1 DP575-NT4 SYS:NDP575 NT TRACK PC $ 2,100.00 $ 2,100.00 $ 43.00
1 NTW40-P DOC SW:NT WS TRACK PC - - $ 2.00
1 KB100-100 KEYBD:UNIVERSAL F $ 345.00 $ 345.00 -
1 CBL100-DP1 CABLE:KEYBOARD $ 50.00 $ 50.00 -
1 DP590-ITI ACC:ITI INTEGRATION STYL
============= ===========================
Appendix A1 Total: $ 78,943.00 $ 78,943.00 $ 594.00
ITI Discount $ 10,500.00 $ 10,500.00
============= ===========================
Appendix A1 Grand total: $ 68,443.00 $ 68,443.00 $ 594.00
Appendix A2 - Enable
Xxxxx River Community Bank, 000 Xxxx Xxxxxx Xx., Xxxxxxxxxxxx, XX 00000
Exhibit 10.2(Continued)
Item Qty Style Description List % Disc Selling Monthly
Price Surety
BTCO COMPONENTS
Small File Server
1 TWM8505-EXD Tape Drive purchase and install $ 1,995.00 $ 1,995.00 $ 75.00
1 00-0000-000 XXXxxxxxXX 6.61 Workgroup Edition for Windows NT $ 695.00 $ 695.00 $ 7.00
Connect3 Communication Server
1 21-2773-931 ARCservIT 6.61 Workgroup Edition for Windows NT $ 695.00 $ 695.00 $ 7.00
4 65-2315-979 Courier V.Everything Ext 33.6 D/F Modern Pc/MAc $ 1,040.00 $ 1,040.00 -
4 15-1196-102 EF Printer & Modem Cable $ 208.00 $ 208.00 -
1 TWM33038-SVR Connect3 Load Incls Tape Drive And Pcanywhere $ 2,350.00 $ 2,350.00 -
1 TWM22090-DG8 PC/8EM (DB25) digi bd $ 995.00 $ 995.00 -
1 57-8959-900 SURGE, 7 RECEPTACLES, 6FT CORD $ 89.00 $ 89.00 -
0 00-0000-000 SURGE, DIAL UP, 2W, RJ11 $ 128.00 $ 128.00 -
NETWORK OPERATING SYSTEMS
1 TD454504 Micorosoft Sql Svr V7.0 - 5 User $ 1,399.00 $ 1,399.00 -
1 TD454505 Microsoft Sql Svr V7.0 - 10 User $ 1,999.00 $ 1,999.00 -
ETHERNET COMPONENTS
2 86-1730-927 10BASE X Xxx 00 Xxxx, Xxxxx Amer. $ 1,698.00 $ 1,698.00 $ 14.00
1 48-6365-976 BAYSTACK 350-24T SWITCH $ 2,495.00 $ 2,495.00 $ 25.00
1 15-1877-107 10' Serial Cable DB9F to DB9F $ 29.00 $ 29.00 -
INFOAccess COMPONENTS
13 86-1439-875 RJ45 Pvc Patch Cables - Pc to Wall - 10 Ft $ 191.10 $ 191.10 -
13 86-1439-842 RJ45 Pvc Patch Panel Cables - 5 Ft $ 102.96 $ 102.96 -
2 86-1686-400 RJ45 Patch Panel 24 Ports W/110Blocks $ 252.00 $ 252.00 -
2 86-0860-477 19" Equipment Rack - 7 Foot $ 570.00 $ 570.00 -
2 57-8956-906 SURGE, 7 RECEPTACLES, 6 FT CORD $ 118.00 $ 118.00 -
6 85-0197-906 19" Shelf $ 312.00 $ 312.00 -
ANCILLARY COMPONENTS, SUPPLIES
4 81150930 UPS 1000VA W SOFTWARE 8MIN BATT @ $ 2,996.00 $ 2,996.00 -
5 02-0499-935 UP710M & UP715M 4 Year Advanced Extended Warranty $ 875.00 $ 875.00 -
1 81157935 UPS 1500VA W SOFTWARE, 8 MIN BATT @ $ 899.00 $ 899.00 -
1 21-2766-935 InoculateIT v4.53 Workgroup/Advanced Edition, Client
Agents- $ 49.00 $ 49.00 -
2 21-2767-933 InoculateIT v4.53 Workgroup/Advanced Edition, Client
Agent- $ 790.00 $ 790.00 $ 8.00
1 00-0000-000 XXXxxxxxXX 6.61 Advanced Edition for Windows NT $ 1,395.00 $ 1,395.00 $ 14.00
1 TD497268 Microtek Scan Maker X6 $ 149.00 $ 149.00 $ 13.00
1 TD888911 Exb EX17DWK 8900 DW /ext 8MM Autoloader 140/280 $ 5,285.00 $ 5,285.00 $ 77.53
30 TD888675 307265-000 Exabyte 8Mm Tape Media $ 660.00 $ 660.00 -
2 21-2784-938 ARCserveIT Workgroup/Advanced Edition Backup Agent
for Mic $ 1,990.00 $ 1,990.00 -
4 15-1025-665 DB25M/CENT35M ASSY PARALEL 6.6 PVC $ 154.60 $ 154.60 $ 20.00
3 00-0000-000 XxxxxxxxxXX v4.53 Workgoup Edition for Windows NT $ 1,485.00 $ 1,485.00 -
5 21-2778-930 ARCserveIT Workgoup/Advanced Edition Disaster Recover O $ 2,475.00 $ 2,475.00 $ 15.00
3 15-2061-107 10' Serial Cable DB9F/DB25M - FAX/PcAnywhere $ 99.00 $ 99.00 $ 25.00
1 68-0520-988 Robohelp 7 $ 695.00 $ 695.00 -
1 TD459132 M/S Word 2000 $ 339.00 $ 339.00 -
9 68-3300-982 ITI Connect 16 bit Fourth Edition $ 1,755.00 $ 1,755.00 -
9 68-3321-988 Maintenance for ITI Connect 16 bit Fourth Edition $ 270.00 $ 270.00 -
3 68-3918-981 ITI Connect 32 bit Fourth Edition $ 585.00 $ 585.00 -
3 68-3919-989 Maintenance for ITI Connect 32bit Emerald Edition $ 90.00 $ 90.00 -
1 68-3322-986 Combo Pack 16/32 bit ITI Connect $ 295.00 $ 295.00 -
1 68-3921-985 Maintenance of ITI Combo Pack $ 60.00 $ 60.00 -
1 21-2763-932 InoculateIT v4.53 Advanced Edition ofr Windows NT $ 695.00 $ 695.00 $ 7.00
2 TD888656 Exapak Mammouth Tape Drive ACC Kit 10 Tapes w/Cleaner $ 1,972.00 $ 1,972.00 -
7 TD459129 Office 2000 $ 3,493.00 $ 3,493.00 -
7 TD619925 7' Cable $ 290.00 $ 290.00
1 TD619609 8 Port switch $ 908.00 $ 908.00
STORAGE EQUIPMENT
1 TD091789 TEAC 6X/2 X EXT CDR RTL SGL W/PCI CONTROLLER & SO $ 449.00 $ 449.00 -
1 65-2041-971 Fuijitsu 15 Ppm Scanpartner Color Flatbed $ 1,845.00 $ 1,845.00 $ 22.49
8 TD940707 USRobotics Sportster Ext 33.6 V.34 $ 880.00 $ 880.00 -
Page 1
Appendix A2 - Enable
Xxxxx River Community Bank, 000 Xxxx Xxxxxx Xx., Xxxxxxxxxxxx, XX 00000
Item Qty Style Description List % Disc Selling Monthly
Price Surety
2 15-8235-887 SCSI 1 Terminator $ 64.00 $ 64.00 -
2 15-8217-067 SCSI 1 to SCSI 2 6FT Cable $ 178.00 $ 178.00 -
2 TD892589 PcAnywhere 32B V 9.0 $ 430.00 $ 430.00 -
10 64-1429-964 TDK74CDR 74 Min 650 MB Disk $ 49.90 $ 49.90 -
UNISYS CONNECT SERVICES
1 LAN-SRV INSTALLATION SERVICES $ 17,250.00 $ 17,250.00
1 WAN-SRV ENABLE NETWORK DESIGN SERVICES $ 775.00 $ 775.00
1 PRM-WRG Estimated Premise Wiring Charges for Drops $ 2,444.00 $ 2,444.00
1 PRJ-MGT UNISYS GCS PROJECT COORDINATION $ 1,789.00 $ 1,789.00
1 680583986 ITI Image Base HotStage $ 10,615.38 $ 10,615.38
=============== ===========================
Appendix A2 Total: $ 84,878.94 $ 84,878.94 $ 330.02
ITI Discount - - -
=============== ===========================
Appendix A2 Grand Total: $ 84,878.94 $ 167,067.88 $ 578.04
Page 2
Exhibit 10.2(Continued)
INFORMATION TECHNOLOGY INC.
PRODUCT LICENSE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"), and
the "Customer" identified below.
I. LICENSED PRODUCT
1.1 LICENSE. Vendor grants to Customer and Customer accepts from Vendor a
nonexclusive and nontransferable license to use the products identified in
Appendix A (the "Product") under the terms set forth in this agreement. The
license herein granted shall commence upon the date of delivery of the Product
and shall remain in effect for so long as Vendor's warranties set forth in
Article V remain in effect.
1.2 PROPRIETARY NATURE OF PRODUCT AND TITLE.The Product and any operations
manuals, instructions, and other documents or written materials provided to
Customer as instruction in the use of the Product (the "Documentation") are
acknowledged by Customer to be and contain Vendor's proprietary information and
trade secrets, whether or not any portion thereof is or may be validly
copyrighted or patented, acknowledged to be protected by civil and criminal law,
and acknowledged to be of great value to Vendor. Except as specifically licensed
under this agreement, title and all ownership rights to the Product and the
Documentation remain with Vendor. Customer shall retain or affix such evidences
of ownership and proprietary notices as Vendor may reasonably request. This
paragraph shall survive the term or termination of this agreement.
1.3 USE OF PRODUCT. The Product may be used only for, by and on behalf of
Customer and only in connection with Customer's business operations. This
license is granted only for use at the single location identified in Appendix A,
upon a single computer system (CPU) as identified in Appendix A, and is limited
to processing of not more than the number of accounts (as hereinafter defined)
specified in Appendix A. This license may not be used upon any other computer or
at any other location except as provided under paragraph 1.4. In the event
Customer's usage exceeds the account limitation set forth in Appendix A, a new,
upgraded Product License Agreement shall be required, including the payment of
an additional license fee. For purposes of this Agreement, "accounts" are
defined as the total of all accounts (open or closed) for demand deposit, demand
deposit loan, savings, time savings, XXX, certificate of deposit, and loan
accounts, processed by Customer, for the institutions being serviced with the
Product licensed hereunder.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to use the
Product at the location identified in Appendix A due to an emergency, or to test
emergency procedures, Vendor grants to Customer the right to use the Product at
a location other than the location defined in Appendix A. Any such use shall be
subject to all other restrictions of this agreement and shall continue only so
long as the condition giving rise to such use continues. Prior to commencing
such use, if possible, and in any event within forty-eight (48) hours of such
use, Customer shall give Vendor written notice of the circumstance, location and
the expected length of such use. Failure to give notice shall nullify Customer's
right of emergency use, as herein granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to the
Product may not be assigned, licensed, sublicensed, pledged, or otherwise
transferred voluntarily, by operation of law or otherwise without Vendor's prior
written consent, and any such prohibited assignment shall be null and void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Product granted
under this agreement, Customer shall pay to Vendor the license fee specified in
Appendix A. Such license fee does not include, except as expressly provided in
this agreement or Appendix A hereto, installation or maintenance of the Product,
data base conversion, media, transportation charges, or taxes, all of which
costs and taxes shall be the obligation of Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix A shall be
payable in the following manner: (A)A percentage of the license fee, as
specified in Appendix A, upon execution of this license agreement by Customer.
(B)The balance, including any applicable taxes, upon delivery of the Product by
Vendor to Customer. Invoices respecting the license fee shall be rendered in
accordance with the above payment schedule and are payable to Vendor at Vendor's
address set forth below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder, Customer
shall pay all taxes (including, without limitation, sales, use, privilege, ad
valorem or excise taxes) and customs duties paid or now or hereafter payable,
however designated, levied or based on amounts payable to Vendor hereunder or on
Customer's use or possession of the Product under this agreement or upon the
presence of the Product at the location identified in Appendix A, but exclusive
of federal, state and local taxes based on Vendor's net income. Customer shall
not deduct from payments to Vendor any amounts paid or payable to third parties
for customs duties or taxes, however designated.
2.4 CURRENCY. The purchase price and any other charges arising under
this agreement shall be invoiced and be payable in U.S. Dollars.
2.5 LATE PAYMENT. Customer shall pay a late payment charge of one and
one-half percent (1 1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereof) that such payment
is not made following its due date.
2.6 SECURITY. Vendor reserves and Customer grants to Vendor a security
interest in the rights of Customer for use of the Product and in the
Documentation as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the license fee set forth in
Appendix A. A copy of this agreement may be filed in appropriate filing offices
at any time after signature by Customer as a financing statement or Vendor may
require and Customer shall execute a separate financing statement for purposes
of perfecting Vendor's security interest granted pursuant to the provisions of
this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Product and Customer shall accept
delivery of the Product at Customer's address set forth below. Unless delayed,
as hereinafter provided for, delivery shall be completed within one (1) year of
the date this agreement is accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of delivery,
Vendor shall not be obligated to effect delivery of the Product except upon
thirty (30) days written notice by Customer to Vendor. If delay in delivery is
due to any cause beyond the control of Vendor, the date upon which delivery is
to be completed shall be extended by the number of days of such delay.
3.3 TRAINING. Classes in the operation of the Product are available at the
offices of Vendor, on a regularly scheduled basis at Vendor's normal rates with
respect thereto. All travel, meal and lodging expenses of Customer in connection
with such training shall be borne by Customer. On-site training or assistance
will be available solely at Vendor's discretion and will be charged to Customer
at Vendor's normal rates together with reasonable expenses for travel, meals,
lodging and local transportation.
Page 1 of 5
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable assistance
and cooperation to Vendor in preparation of the Product and the delivery or
installation thereof. Such assistance and cooperation shall include, as
appropriate, reasonable access to Customer's facility and to Customer's records,
as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Product will be
delivered to Customer prior to or contemporaneously with the delivery of the
Product.
3.6 RISK OF LOSS. If the Product or the Documentation is lost or damaged,
in whole or in part, during shipment, Vendor will replace said Product or
Documentation at no additional charge to Customer. Upon delivery in good
condition of the Product and the Documentation, Customer shall be responsible
therefor and bear the risk of loss for said Product and Documentation.
3.7 INSTALLATION ASSISTANCE. Vendor may, at its sole discretion, assist
Customer in any required installation of the Product at Vendor's normal charges
for such assistance. Expenses, including but not limited to computer time,
travel, meals, lodging and local transportation incurred in connection
therewith, shall be borne by Customer. In no event shall Vendor be liable to
Customer for loss of profits, consequential, incidental, indirect or special
damages arising from Vendor's efforts to assist in such installation. Vendor
agrees to treat Customer's confidential business with the same security as it
would its own.
3.8 OPERATION. Customer acknowledges and agrees that it is exclusively
responsible for the operation, supervision, management and control of the
Product, including, but not limited to, providing adequate training for its
personnel, instituting appropriate security procedures, and implementing
reasonable procedures to examine and verify all output before use. Vendor shall
have no responsibility or liability for Customer's selection or use of the
Product or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing integrity
and proper operation of the Product, Customer agrees to implement, in the manner
instructed by Vendor, each error correction and each enhancement and improvement
provided to Customer by Vendor. Customer's failure to do so shall relieve Vendor
of any responsibility or liability whatsoever for any failure or malfunction of
the Product as modified by a subsequent correction or improvement, but in no
such event shall Customer be relieved of the responsibility for payment of fees
and charges otherwise properly invoiced during the term hereof. If requested by
Vendor, Customer agrees to provide written documentation and details to Vendor
to substantiate problems and to assist Vendor in the identification and
detection of problems, errors and malfunctions; and Customer agrees that Vendor
shall have no obligation or liability for said problems until it has received
such documentation and details from Customer.
3.10 SECURITY AND CONFIDENTIALITY. The security and confidentiality of
Customer's data, including the information of its depositors and other customers
contained therein is expressly agreed to be the sole responsibility of Customer.
Customer warrants that it will take all steps reasonably necessary to protect
the confidentiality of such data and to prevent unauthorized disclosure of or
access thereto. Customer hereby releases Vendor from any claim arising from or
in any way related to access to Customer's database using the Software via use
of the Internet or any similar means of electronic communication. Customer
indemnifies and holds Vendor harmless from and against any loss suffered by
Customer and any third party claim arising from any unauthorized access of (i)
Customer's data, or (ii) the information of Customer's account holders or other
customers.
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps necessary,
including any required by Vendor, to ensure that neither the Product nor the
Documentation, nor any portion thereof, on magnetic tape or disk or in any other
form, is made available or disclosed by Customer or any of its agents or
employees to any other person, firm or corporation. Customer may disclose
relevant aspects of the Product and Documentation to its employees and, with
Vendor's prior written consent, agents to the extent such disclosure is
reasonably necessary to Customer's use of the Product, provided, however,
Customer agrees that it will cause all persons permitted such access to the
Product and the Documentation to observe and perform the foregoing
non-disclosure covenant, and that it will advise Vendor of the procedures
employed for this purpose. Customer shall hold Vendor harmless against any loss,
cost, expense, claim or liability, including reasonable attorney's fees,
resulting from Customer's breach of this non-disclosure obligation. This
paragraph shall survive the term or termination of this agreement.
4.2 COPIES. Customer agrees that while the Product and the Documentation
are in its custody and possession, it will not (a) copy or duplicate or permit
anyone else to copy or duplicate any of the Product, Documentation or
information furnished by Vendor, or (b) create or attempt to create, or permit
others to create or attempt to create, by reverse engineering or otherwise, the
Product, the Documentation or other information made available under this
agreement or otherwise, (whether oral, written, tangible or intangible).
Notwithstanding the foregoing, Customer may make and retain two (2) copies of
the Product, including all enhancements and changes thereto, only for use in
emergencies or to test emergency procedures and may copy for its own use and at
its own expense the Documentation, but shall advise Vendor of the specific item
copied, the number of copies made and their distribution. The original and any
copies in whole or in part of the Product or Documentation which are made
pursuant to this provision shall be the exclusive property of Vendor and shall
be fully subject to the provisions of this agreement. Customer agrees to retain
or place Vendor's proprietary notice on any copies or partial copies made
pursuant to this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately of the
unauthorized possession, use, or knowledge of the Product, Documentation or any
information made available to Customer pursuant to this agreement, by any person
or organization not authorized by this agreement to have such possession, use or
knowledge. Customer will, thereafter, fully cooperate with Vendor in the
protection and redress of Vendor's proprietary rights. Customer's compliance
with this paragraph shall not, however, be construed in any way as a waiver of
Vendor's rights against Customer for Customer's negligent or intentional harm to
Vendor's proprietary rights, or for breach of Vendor's contractual rights.
4.4 INSPECTION. To assist Vendor in the protection of its proprietary
rights, Customer shall permit representatives of Vendor to inspect the Product
and Documentation and their use, including inspection of any location in which
they are being used or kept at all reasonable times.
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense, sell or otherwise convey or to disclose the Product or
Documentation, in any manner contrary to the terms of this agreement or in
derogation of Vendor's proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition to
any other remedies available to it, the right to injunctive relief enjoining
such actions, Customer hereby acknowledging that other remedies are inadequate.
4.6 VENDOR'S EMPLOYEES. Customer acknowledges the relationship of Vendor
and its employees is of significant value to Vendor and that Vendor's employees
are possessed of specialized training and knowledge regarding Vendor and its
proprietary property, imparted to such employees at significant expense to
Vendor. Accordingly, Customer agrees that during the term hereof and for a
period of eighteen (18) months thereafter, Customer shall not, directly or
indirectly, solicit for employment or employ any person who is or within the
preceding twelve (12) months has been an employee of Vendor. Vendor shall have,
in addition to any other remedies available to it, the right to injunctive
relief enjoining any violations of this paragraph 4.6, Customer hereby
acknowledging that other remedies are inadequate. At Vendor's sole option,
Vender may waive its right to injunctive relief and its right to exercise any
other remedy which might be available to it. In consideration of such waiver,
Customer shall thereupon pay Vendor as liquidated damages a fee equal in amount
to the total compensation paid by Vendor to the former employee for the twelve
(12) months next preceding the date of termination of employment of such
employee by Vendor.
Page 2 of 5
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 PRODUCT WARRANTY. Vendor warrants that at delivery, the Product will
perform in accordance with the then current Documentation provided Customer, and
further warrants that it has the right to authorize the use of the Product under
this agreement. Vendor's obligation and liability under this paragraph shall,
however, be limited to the replacement and correction of the Product so that it
will so perform, or to obtaining any authorization necessary to make effective
the grant of license to Customer of the use of the Product.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend Customer
from any claim or any suit based on any claim that the use of the Product by
Customer under this agreement infringes on any patent, copyright, trademark, or
other proprietary right of any third party, provided that Customer gives Vendor
prompt and written notice of any such claim or suit and permits Vendor to
control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by Vendor
under paragraph 5.5, shall be subject to extension for successive one-year
warranty periods commencing on the date of the delivery of the Product. Each one
year extension (the "Warranty Period") shall be deemed to automatically occur
unless notice is given by either Customer or Vendor of an election not to so
extend, such notice to be given on or prior to the sixtieth (60th) day preceding
the Warranty Period. Any such extension shall in no event be effective unless
Customer shall have paid to Vendor on or prior to the beginning of the Warranty
Period its then current annual maintenance fee.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with all
enhancements and changes to the Product designed or developed by Vendor and
released to its other customers during the Warranty Period. Any change or
enhancement to the Product, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license fee
of any enhancements or corrections developed by Customer. Vendor reserves the
right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, report formats, types of hardware
supported, throughput, and other related programming and documentation
improvements required to maintain the Product current. As part of these
services, Vendor will provide Customer the changes with written instructions
concerning implementation. It is understood and agreed that Vendor provision of
improvements and enhancements under this paragraph does not include providing to
Customer new product which may result from rewriting the Product. Vendor alone
shall determine whether the work product of Vendor constitutes new product as a
result of a complete rewrite (which is not provided to Customer hereunder) or an
improvement or enhancement of the Product (which will be provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in paragraphs 5.1
and 5.2 and Customer's rights under paragraph 5.5 shall immediately terminate if
the Product is revised, changed, enhanced, modified or maintained by any one
other than Vendor without the prior specific direction or written approval of
Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that Vendor's
responsibilities in the event of its breach of the warranties contained in
paragraphs 5.1 and 5.2 are as set forth in said paragraphs. Vendor's liability
for damages, including but not limited to liability for patent or copyright
infringement, regardless of the form of action, shall not exceed the license fee
set forth in Appendix A to this agreement and shall arise only if the remedies
provided in paragraphs 5.1 and 5.2 are not fulfilled by Vendor. Customer further
agrees that Vendor will not be liable for any lost profits, or for any claim or
demand against Customer by any other party, except a claim for patent or
copyright infringement as provided herein. IN NO EVENT WILL VENDOR BE LIABLE FOR
CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. No action, regardless of form, arising out of this agreement, may be
brought by either party more than one (1) year after the cause of action has
accrued, except that an action for non-payment may be brought within one (1)
year after the date of last payment. No action by Vendor for wrongful disclosure
or use of the Product or Documentation shall be deemed to have accrued until
Vendor receives actual notice of such wrongful disclosure or use. THE CUSTOMER'S
REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
5.8 THIRD PARTY SOFTWARE. The Software licensed hereunder may include
software developed and owned by third party licensors. Vendor's sole warranty
with respect to such third party software is that Vendor possesses the legal
right and authority to relicense such third party software to Customer. Specific
warranties regarding performance of such third party software shall be limited
to the warranties, if any, provided by such third party licensors. In exchange
for Customer's agreement not to assert any claim for breach of such third party
licensor's warranties against Vendor, Vendor hereby assigns to Customer such
right, if any, as Vendor may possess to assert a claim for breach of warranty
against the third party licensor.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement and the license
granted hereunder in the event of a default by Customer unless Customer shall
have cured the event of default, as hereinafter defined, within twenty (20) days
after notice of such event of default given by Vendor to Customer. This
agreement and the license granted hereunder shall automatically terminate if
Vendor's warranties are not renewed as contemplated in paragraph 5.4 hereof.
Upon any termination of this agreement, Customer shall deliver to Vendor the
Product, the Documentation and all copies thereof and shall also warrant in
writing that all copies have been returned to Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as any of the
following :
(A) Customer's failure to pay any amounts required to be paid to
Vendor under this agreement on a timely basis;
(B) Any attempt (i) to assign, sell, mortgage, lease, sublease,
license, sublicense or otherwise convey, (ii) to grant any interest in,
right of use of, or access to, or (iii) to otherwise disclose the Product or
the Documentation, except, in any such case, as herein expressly permitted
or as consented to in writing by the Vendor;
(C) Causing or permitting any encumbrance, of any nature whatsoever to
attach to Customer's interest in the Product in favor of any person or
entity other than Vendor;
(D) The entry of any order for relief under any provision of the
federal bankruptcy code in any bankruptcy proceedings initiated by or
against Customer; or
(E) Customer's breach of any of the terms or conditions of this
agreement.
6.3 DAMAGES. Upon the occurrence of an event of default without cure
within the period of time above-provided, all license or other fees payable to
Vendor under this agreement shall without notice or demand by Vendor become
immediately due and payable as liquidated damages. This provision for liquidated
damages shall not be regarded as a waiver by Vendor of any other rights to which
it may be entitled in the event of Customer's default, but rather, such remedy
shall be an addition to any other remedy lawfully available to Vendor.
Page 3 of 5
VI. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference purposes only
and are not to be considered a part of this agreement.
7.2 FORCE MAJEURE. No party shall be liable for delay in performance
hereunder due to causes beyond its control, including but not limited to acts of
God, fires, strikes, delinquencies of suppliers, acts of war or intervention by
any governmental authority, and each party shall take steps to minimize any such
delay.
7.3 WAIVER. No waiver of any breach of any provision of this agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof and no waiver shall be effective unless made
in writing and signed by an authorized representative of the party to be charged
therewith.
7.4 SEVERABILITY. In the event that any provision of this agreement shall
be illegal or otherwise unenforceable, such provision shall be severed from this
agreement and the entire agreement shall not fail on account thereof, the
balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or permitted
to give hereunder shall be addressed to the party to be charged therewith at the
address set forth below and shall be given by certified or registered mail. Any
such notice shall be deemed given on the date of deposit in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ
THIS AGREEMENT. UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PARTIES
FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT TO IT
CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS OF THE
AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS, CONDITIONS,
WARRANTIES, COVENANTS. AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING
TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER AGREE THAT THIS
AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY A PRIOR OR EXISTING
COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF TRADE OR CUSTOM, OR BY
ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO THIS AGREEMENT OR
OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR OTHER INSTRUMENT
COVERING THE SERVICES OR DOCUMENTATION HEREIN SPECIFIED, IT IS UNDERSTOOD AND
AGREED THAT SUCH PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S INTERNAL
USE AND PURPOSES ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS AND CONDITIONS
OF THIS AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of Nebraska,
and shall be enforced in accordance with and governed by the laws of the State
of Nebraska.
7.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
shall be instituted in and litigated in the state or federal courts of the State
of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of Nebraska
as its agent for receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is brought
in connection with this agreement the prevailing party therein shall be entitled
to recover its costs and reasonable attorney's fees.
7.10 COUNTERPARTS/FACSIMILES. This agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any signature to this
agreement may be transmitted by fax and a facsimile signature received by a
party hereto shall for all purposes be deemed an original signature hereto.
7.11 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
Page 4 of 5
CUSTOMER: VENDOR:
XXXXX RIVER COMMUNITY BANK INFORMATION TECHNOLOGY, INC.
-------------------------------
Signature:------------------------ Signature:--------------------------
Name: Name: Xxxxxxx X. Xxxxx
----------------------------- -----------------------------
Title: Title: President
---------------------------- ------------------------------
Address: 000 Xxxx Xxxxxx Xxxxxx Address: 0000 Xxx Xxxxxx Xxxx
------------------------- ----------------------------
Xxxxxxxxxxxx XX 00000 Xxxxxxx, XX 00000
------------------------- ----------------------------
Date: 11/5/99 Date Accepted: November 9, 1999
------------------------- ----------------------
APPENDIX A
DUE UPON EXECUTION: 30% LOCATION WHERE THE PRODUCT(S) WILL BE USED:
--------
COMPUTER SYSTEM (CPU): N/A (A99) Xxxxx River Community Bank
------------ 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
PRODUCT(S) AND LICENSE FEE(S):
107-400 Premier II Teller Sears (4 @ $1000) $ 4,000
110-002 Director Network Report & Document Archive Module (Includes 5 Named Users) 17,985
112-901 Director Named User Workstation Software (1 @ $595) 595
113-200 Director CD-ROM Interface 495
506-008 Premier II Teller Release Upgrade Utility 3,000
----------------
TOTAL: $ 26,075
Page 5 of 5
Exhibit 10.2(Continued)
INFORMATION TECHNOLOGY INC.
SOFTWARE LICENSE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"), and the
"Customer" identified below.
1. LICENSED SOFTWARE
1.1 LICENSE. Vendor grants to Customer and Customer accepts from Vendor a
nonexclusive and nontransferable license to use the software identified in
Appendix A (the "Software") under the terms set forth in this agreement. The
license herein granted shall commence upon the date of delivery of the software
and shall remain in effect for so long as Vendor's warranties set forth in
Article V remain in effect.
1.2 PROPRIETARY NATURE OF SOFTWARE AND TITLE. The Software and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Software (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
proprietary information and trade secrets, whether or not any portion thereof is
or may be validly copyrighted or patented, acknowledged to be protected by civil
and criminal law, and acknowledged to be of great value to Vendor. Except as
specifically licensed under this agreement, title and all ownership rights to
the Software and the Documentation remain with Vendor. Customer shall retain or
affix such evidences of ownership and proprietary notices as Vendor may
reasonably request. This paragraph shall survive the term or termination of this
agreement.
1.3 USE OF SOFTWARE. The Software may be used only for, by and on behalf
of Customer and only in connection with Customer's business operations. This
license is granted only for use at the single location identified in Appendix A,
upon a single computer system (CPU) as identified in Appendix A, and is limited
to processing of not more than the number of accounts (as hereinafter defined)
specified in Appendix A. This license may not be used upon any other computer or
at any other location except as provided under paragraph 1.4. In the event
Customer's usage exceeds the account limitation set forth in Appendix A, a new,
upgraded Software License Agreement shall be required, including the payment of
an additional license fee. For purposes of this Agreement, "accounts" are
defined as the total of all accounts (open or closed) for demand deposit, demand
deposit loan, savings, time savings, XXX, certificate of deposit, and loan
accounts, processed by Customer, for the institutions being serviced with the
Software licensed hereunder.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to use the
Software at the location identified in Appendix A due to an emergency, or to
test emergency procedures, Vendor grants to Customer the right to use the
Software at a location other than the location defined in Appendix A. Any such
use shall be subject to all other restrictions of this agreement and shall
continue only so long as the condition giving rise to such use continues. Prior
to commencing such use, if possible, and in any event within forty-eight (48)
hours of such use, Customer shall give Vendor written notice of the
circumstance, location and the expected length of such use. Failure to give
notice shall nullify Customer's right of emergency use, as herein granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to the
Software may not be assigned, licensed, sublicensed, pledged, or otherwise
transferred voluntarily, by operation of law or otherwise without Vendor's prior
written consent, and any such prohibited assignment shall be null and void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Software granted
under this agreement, Customer shall pay to Vendor the license fee specified in
Appendix A. Such license fee does not include, except as expressly provided in
this agreement or Appendix A hereto, installation or maintenance of the
Software, data base conversion, media, transportation charges or taxes, all of
which costs and taxes shall be the obligation of Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix A shall be
payable in the following manner:
(A) A percentage of the license fee, as specified in Appendix A,
upon execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon delivery of the
Software by Vendor to Customer.
Invoices respecting the license fee shall be rendered in accordance with the
above payment schedule and are payable to Vendor at Vendor's address set forth
below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder, Customer
shall pay all taxes (including, without limitation, sales, use, privilege, ad
valorem or excise taxes) and customs duties paid or now or hereafter payable,
however designated, levied or based on amounts payable to Vendor hereunder, on
Customer's use or possession of the Software under this agreement or upon the
presence of the Software at the location identified in Appendix A, but exclusive
of federal, state and local taxes based on Vendor's net income. Customer shall
not deduct from payments to Vendor any amounts paid or payable to third parties
for customs duties or taxes, however designated
2.4 CURRENCY. The purchase price and any other charges arising under this
agreement shall be invoiced and be payable in U.S. Dollars.
2.5 LATE PAYMENT. Customer shall pay a late payment charge of one and
one-half percent (1 1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereof) that such payment
is not made following its due date.
2.6 SECURITY. Vendor reserves and Customer grants to Vendor a security
interest in the rights of Customer for use of the Software and in the
Documentation as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the license fee set forth in
Appendix A. A copy of this agreement may be filed in appropriate filing offices
at any time after signature by Customer as a financing statement or Vendor may
require and Customer shall execute a separate financing statement for purposes
of perfecting Vendor's security interest granted pursuant to the provisions of
this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Software and Customer shall accept
delivery of the Software at Customer's address set forth below. Unless delayed,
as hereinafter provided for, delivery shall be completed within one (1) year of
the date this agreement is accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of delivery,
Vendor shall not be obligated to effect delivery of the Software except upon
thirty (30) days written notice by Customer to Vendor. If delay in delivery is
due to any cause beyond the control of Vendor, the date upon which delivery is
to be completed shall be extended by the number of days of such delay.
Page 1 of 5
3.3 TRAINING. Classes in the operation of the Software are available at
the offices of Vendor on a regularly scheduled basis. Customer's entitlement, if
any, to such training is as set forth in Appendix A for such additional charges,
if any, as may be set forth therein. Reasonable additional training will be
provided to customer at the offices of Vendor upon Customer's request, at
Vendor's normal rates with respect thereto. All travel, meal and lodging
expenses of Customer in connection with such training shall be borne by
Customer. On-site training or assistance will be available solely at Vendor's
discretion and will be charged to Customer at Vendor's normal rates together
with reasonable expenses for travel, meals, lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable assistance
and cooperation to Vendor in preparation of the Software and the delivery or
installation thereof. Such assistance and cooperation shall include, as
appropriate, reasonable access to Customer's facility and to Customer's records,
as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Software will be
delivered to Customer prior to or contemporaneously with the delivery of the
Software.
3.6 RISK OF LOSS. If the Software or the Documentation is lost or damaged,
in whole or in part, during shipment, Vendor will replace said Software or
Documentation at no additional charge to Customer. Upon delivery in good
condition of the Software and the Documentation, Customer shall be responsible
therefor and bear the risk of loss for said Software and Documentation.
3.7 CONVERSION ASSISTANCE. Vendor may, at its sole discretion, assist
Customer in the conversion of Customer's files from a computer processor or
in-house computer system at Vendor's normal charges for such assistance.
Expenses, including but not limited to computer time, travel, meals, lodging and
local transportation incurred connection therewith, shall be borne by Customer.
In no event shall Vendor be liable to Customer for loss of profits,
consequential, incidental, indirect or special damages arising from Vendor's
efforts to assist in the conversion of Customer's files. Vendor agrees to treat
Customer's confidential business with the same security as it would its own.
3.8 OPERATION. Customer acknowledges and agrees that it is exclusively
responsible for the operation, supervision, management and control of the
Software, including, but not limited to, providing adequate training for its
personnel, instituting appropriate security procedures, and implementing
reasonable procedures to examine and verify all output before use. Vendor shall
have no responsibility or liability for Customer's selection or use of the
Software or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing integrity
and proper operation of the Software, Customer agrees to implement, in the
manner instructed by Vendor, each error correction and each enhancement and
improvement provided to Customer by Vendor. Customer's failure to do so shall
relieve Vendor of any responsibility or liability whatsoever for any failure or
malfunction of the software as modified by a subsequent correction or
improvement, but in no such event shall Customer be relieved of the
responsibility for payment of fees and charges otherwise properly invoiced
during the term hereof. If requested by Vendor, Customer agrees to provide
written documentation and details to Vendor to substantiate problems and to
assist Vendor in the identification and detection of problems, errors and
malfunctions: and Customer agrees that Vendor shall have no obligation or
liability for said problems untilithas received such documentation and details
from Customer.
3.10 SECURITY AND CONFIDENTIALITY The security and confidentiality of
Customer's data, including the information of its depositors and other customers
contained therein is expressly agreed to be the sole responsibility of Customer.
Customer warrants thatitwill take all steps reasonably necessary to protect the
confidentiality of such data and to prevent unauthorized disclosure of or access
thereto. Customer hereby releases Vendor from any claim arising from or in any
way related to access to Customer's database using the Software via use of the
Internet or any similar means of electronic communication. Customer indemnifies
and holds Vendor harmless from and against any loss suffered by Customer and any
third party claim arising from any unauthorized access of (i) Customer's data,
or (ii) the information of Customer's account holders or other customers.
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps necessary,
including any required by Vendor, to ensure that neither the Software nor the
Documentation, nor any portion thereof, on magnetic tape or disk or in any other
form, is made available or disclosed by Customer or any of its agents or
employees to any other person, firm or corporation. Customer may disclose
relevant aspects of the Software and Documentation to its employees and, with
Vendor's prior written consent, agents to the extent such disclosure is
reasonably necessary to Customer's use of the Software, provided, however,
Customer agrees that R will cause all persons permitted such access to the
Software and the Documentation to observe and perform the foregoing
nondisclosure covenant, and that it will advise Vendor of the procedures
employed for this purpose. Customer shall hold Vendor harmless against any loss,
cost, expense, claim or liability, including reasonable attorneys fees,
resulting from Customer's breach of this non-disclosure obligation. This
paragraph shall survive the term or termination of this agreement.
4.2 COPIES. Customer agrees that while the Software and the Documentation
are in its custody and possession, it will not (a) copy or duplicate or permit
anyone else to copy or duplicate any of the Software, Documentation or
information furnished by Vendor, or (b) create or attempt to create, or permit
others to create or attempt to create, by reverse engineering or otherwise, the
source programs or any part thereof from the object program for the Software,
the Documentation or other information made available under this agreement or
otherwise, (whether oral, written, tangible or intangible). Notwithstanding the
foregoing. Customer may make and retain two (2) copies of the Software,
including all enhancements and changes thereto, only for use in emergencies or
to test emergency procedures and may copy for its own use and at its own expense
the Documentation, but shall advise Vendor of the specific item copied, the
number of copies made and their distribution. The original and any copies in
whole or in part of the Software or Documentation which are made pursuant to
this provision shall be the exclusive property of Vendor and shall be fully
subject to the provisions of this agreement Customer agrees to retain or place
Vendor's proprietary notice on any copies or partial copies made pursuant to
this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately of the
unauthorized possession, use, or knowledge of the Software, Documentation or any
information made available to Customer pursuant to this agreement, by any person
or organization not authorized by this agreement to have such possession, use or
knowledge. Customer will, thereafter, fully cooperate with Vendor in the
protection and redress of Vendor's proprietary rights. Customer's compliance
with this paragraph shall not, however, be construed in any way as a waiver of
Vendor's rights against Customer for Customer's negligent or intentional harm to
Vendor's proprietary rights, or for breach of Vendor's contractual rights.
4.4 INSPECTION. To assist Vendor in the protection of its proprietary
rights, Customer shall permit representatives of Vendor to inspect the Software
and Documentation and their use, including inspection of any location in which
they are being used or kept at all reasonable times.
Page 2 of 5
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense, sell or otherwise convey or to disclose the Software or
Documentation, in any manner contrary to the terms of this agreement or in
derogation of Vendor's proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition to
any other remedies available to it, the right to injunctive relief enjoining
such actions, Customer hereby acknowledging that other remedies are inadequate.
4.6 ACCESS TO SOURCE CODE. Vendor has deposited the Software in source code
form and Documentation sufficient to facilitate maintenance, modification or
correction of the Software with the custodial agent named in Appendix A. Vendor
reserves the right to change said custodial agent at any time with written
notification to Customer within sixty (60) days of said change. If Vendor, its
successors or assigns shall cease to conduct business for any period in excess
of thirty (30) days, Customer shall have the right to obtain, for its own and
sole use only, a single copy of the then current version of the source code form
of the Software supplied under this agreement, and a single copy of the
Documentation associated therewith, upon payment to the person in control of the
said source code form of the Software of the reasonable cost of making each
copy. The source code form of the Software supplied to Customer under this
paragraph shall be subject to each and every restriction on use set forth in
this agreement. Customer acknowledges that the source code form of the Software
and the associated Documentation are extraordinarily valuable proprietary
property of Vendor and will be guarded against unauthorized use or disclosure
with great care.
4.7 VENDOR'S EMPLOYEES. Customer acknowledges the relationship of Vendor and
its employees is of significant value to Vendor and that Vendor's employees are
possessed of specialized training and knowledge regarding Vendor and its
proprietary property, imparted to such employees at significant expense to
Vendor. Accordingly, Customer agrees that during the term hereof and for a
period of eighteen (18) months thereafter, Customer shall not, directly or
indirectly, solicit for employment or employ any person who is or within the
preceding twelve (12) months has been an employee of Vendor. Vendor shall have,
in addition to any other remedies available to it, the right to injunctive
relief enjoining any violations of this paragraph 4.7, Customer hereby
acknowledging that other remedies are inadequate. At Vendor's sole option,
Vendor may waive its right to injunctive relief and its right to exercise any
other remedy which might be available to it. In consideration of such waiver,
Customer shall thereupon pay Vendor as liquidated damages a fee equal in amount
to the total compensation paid by Vendor to the former employee for the twelve
(1 2) months next preceding the date of termination of employment of such
employee by Vendor.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 SOFTWARE WARRANTY. Vendor warrants that during the first twelve (12)
months following delivery of the Software (the "Warranty Period"), the Software
will perform in accordance with the then current Documentation provided
Customer, and further warrants that it has the right to authorize the use of the
Software under this agreement. Vendor's obligation and liability under this
paragraph shall, however, be limited to the replacement and correction of the
Software so that it will so perform, or to obtaining any authorization necessary
to make effective the grant of license to Customer of the use of the Software.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend Customer
from any claim or any suit based on any claim that the use of the Software by
Customer under this agreement infringes on any patent, copyright, trademark, or
other proprietary right of any third party, provided that Customer gives Vendor
prompt and written notice of any such claim or suit and permits Vendor to
control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by Vendor
under paragraph 5.5, shall be subject to extension for successive one-year
warranty periods commencing on the first anniversary date of the delivery of the
Software for four (4) successive years. Such extension shall be deemed to
automatically occur unless notice is given by either Customer or Vendor of an
election not to so extend, such notice to be given on or prior to the sixtieth
(60th) day preceding the anniversary date of delivery. Any such extension shall
in no event be effective unless Customer shall have paid to Vendor on or prior
to the anniversary date of delivery an annual maintenance fee set forth in
Appendix A. Extension of Vendor's warranties beyond the fifth (5th) anniversary
shall be governed by Vendor's maintenance extension agreement.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with all
enhancements and changes to the Software designed or developed by Vendor and
released to its other customers during the Warranty Period. Any change or
enhancement to the Software, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license fee
of any enhancements or corrections developed by Customer. Vendor reserves the
right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, report formats, types of hardware
supported, throughput, and other related programming and documentation
improvements required to maintain the Software current. As part of these
services, Vendor will provide Customer the changes with written instructions
concerning implementation. It is understood and agreed that Vendor provision of
improvements and enhancements under this paragraph does not include providing to
Customer a new set of software which may result from rewriting the Software.
Vendor alone shall determine whether the work product of Vendor constitutes new
software as a result of a complete rewrite (which is not provided to Customer
hereunder) or an improvement or enhancement of the Software (which will be
provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in paragraphs 5.1
and 5.2 and Customer's rights under paragraph 5.5 shall immediately terminate if
the Software is revised, changed, enhanced, modified or maintained by any one
other than Vendor without the prior specific direction or written approval of
Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that Vendor's
responsibilities in the event of its breach of the warranties contained in
paragraphs 5.1 and 5.2 are as set forth in said paragraphs. Vendor's liability
for damages, including but not limited to liability for patent or copyright
infringement, regardless of the form of action, shall not exceed the license fee
set forth in Appendix A to this agreement and shall arise only if the remedies
provided in paragraphs 5.1 and 5.2 are not fulfilled by Vendor. Customer further
agrees that Vendor will not be liable for any lost profits, or for any claim or
demand against Customer by any other party, except a claim for patent or
copyright infringement as provided herein. IN NO EVENT WILL VENDOR BE LIABLE FOR
CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. No action, regardless of form, arising out of this agreement, may be
brought by either party more than one (1) year after the cause of action has
accrued, except that an action for non-payment may be brought within one (1)
year after the date of last payment. No action by Vendor for wrongful disclosure
or use of the Software or Documentation shall be deemed to have accrued until
Vendor receives actual notice of such wrongful disclosure or use.
Page 3 of 5
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
5.8 THIRD PARTY SOFTWARE. The Software licensed hereunder may include software
developed and owned by third party licensors, Vendor's sole warranty with
respect to such third party software is that Vendor possesses the legal right
and authority to relicense such third party software to Customer. Specific
warranties regarding performance of such third party software shall be limited
to the warranties, if any, provided by such third party licensors. In exchange
for Customer's agreement not to assert any claim for breach of such third party
licensor's warranties against Vendor, Vendor hereby assigns to Customer such
right, if any, as Vendor may possess to assert a claim for breach of warranty
against the third party licensor.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement and the license granted
hereunder in the event of a default by Customer unless Customer shall have cured
the event of default, as hereinafter defined, within twenty (20) days after
notice of such event of default given by Vendor to Customer. This agreement and
the license granted hereunder shall automatically terminate if Vendor's
warranties are not renewed as contemplated in paragraph 5.4 hereof. Upon any
termination of this agreement, Customer shall deliver to Vendor the Software,
the Documentation and all copies thereof and shall also warrant in writing that
all copies have been returned to Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as any of the
following:
(A) Customer's failure to pay any amounts required to be paid to Vendor
under this agreement on a timely basis;
(B) Any attempt (i) to assign, sell, mortgage, lease, sublease, license,
sublicense or otherwise convey, (ii) to grant any interest in, right of use
of, or access to, or (iii) to otherwise disclose the Software or the
Documentation, except, in any such case, as herein expressly permitted or as
consented to in writing by the Vendor;
(C) Causing or permitting any encumbrance, of any nature whatsoever to
attach to Customer's interest in the Software in favor of any person or
entity other than Vendor;
(D) The entry of any order for relief under any provision of the federal
bankruptcy code in any bankruptcy proceedings initiated by or against
Customer; or
(E) Customer's breach of any of the terms or conditions of this
agreement.
6.3 DAMAGES. Upon the occurrence of an event of default without cure within
the period of time above-provided, all license or other fees payable to Vendor
under this agreement shall without notice or demand by Vendor become immediately
due and payable as liquidated damages, This provision for liquidated damages
shall not be regarded as a waiver by Vendor of any other rights to which it may
be entitled in the event of Customer's default, but rather, such remedy shall be
an addition to any other remedy lawfully available to Vendor.
VI. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference purposes only
and are not to be considered a part of this agreement,
7.2 FORCE MAJEURE. No party shall be liable for delay in performance
hereunder due to causes beyond its control, including but not limited to acts of
God, fires, strikes, delinquencies of suppliers, acts of war or intervention by
any governmental authority, and each party shall take steps to minimize any such
delay.
7.3 WAIVER. No waiver of any breach of any provision of this agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the same or
any other provisions hereof and no waiver shall be effective unless made in
writing and signed by an authorized representative of the party to be charged
therewith.
7.4 SEVERABILITY. In the event that any Provision of this agreement shall be
illegal or otherwise unenforceable, such provision shall be severed from this
agreement and the entire agreement shall not fail on account thereof, the
balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or permitted
to give hereunder shall be addressed to the party to be charged therewith at the
address set forth below and shall be given by certified or registered mail. Any
such notice shall be deemed given on the date of deposit in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ THIS
AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PARTIES
FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT TO IT
CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS OF THE
AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS, CONDITIONS,
WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING
TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER AGREE THAT THIS
AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY A PRIOR OR EXISTING
COURSE OF DEALINGS BETWEEN THE PARTIES. BY ANY USAGE OF TRADE OR CUSTOM, OR BY
ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO THIS AGREEMENT OR
OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR OTHER INSTRUMENT
COVERING THE SOFTWARE HEREIN SPECIFIED, IT IS UNDERSTOOD AND AGREED THAT SUCH
PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S INTERNAL USE AND PURPOSES
ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of Nebraska,
and shall be enforced in accordance with and governed by the laws of the State
of Nebraska
7.8 CHOICE OF FORUM. Any action arising out of or related to this agreement
or the transaction herein described, whether at law or in equity, shall be
instituted in and litigated in the state or federal courts of the State of
Nebraska. In accordance herewith, the parties hereto submit to the jurisdiction
of the courts of said state. Any party being not a resident of Nebraska at the
time of suit hereby appoints the Secretary of State of Nebraska as its agent for
receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is brought
in connection with this agreement the prevailing party therein shall be entitled
to recover its costs and reasonable attorneys fees.
7.10 COUNTERPARTS/FACSIMILES. This agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any signature to this
agreement may be transmitted by fax and a facsimile signature received by a
party hereto shall for all purposes be deemed an original signature hereto.
7.11 EFFECTIVE DATE. This agreement shall be effective on the date accepted
and executed by an authorized representative of Vendor.
Page 4 of 5
CUSTOMER: VENDOR:
XXXXX RIVER COMMUNITY BANK INFORMATION TECHNOLOGY, INC.
-----------------------------------
Signature: Signature:
----------------------------------------- -------------------------------------
Name: Name: Xxxxxxx X. Xxxxx
----------------------------------------------- ------------------------------------------
Title: Title: President
------------------------------------------- -----------------------------------------
Address: 000 Xxxx Xxxxxx Xxxxxx Address: 0000 Xxx Xxxxxx Xxxx
------------------------------------------- ----------------------------------------
Xxxxxxxxxxxx XX 00000 Xxxxxxx, XX 00000
------------------------------------------- ----------------------------------------
Date: 11/5/99 Date Accepted: November 9, 1999
------------------------------------------- ---------------------------------
APPENDIX A
DUE UPON EXECUTION: 100% CUSTODIAL AGENT:
------------------------
COMPUTER SYSTEM (CPU): N/A (A99) West Gate Bank, 0000 Xxxx 0 Xxxxxx, Xxxxxxx, XX 00000
--------------------
LOCATION WHERE THE SOFTWARE PRODUCT(S) WILL BE USED:
CUSTOMER'S ENTITLEMENT TO TRAINING:
Customer is entitled to 0 days training for 0 Xxxxx River Community Bank
--------- ---------
person(s) at $ 0 000 Xxxx Xxxxxx Xxxxxx
----------
Xxxxxxxxxxxx, XX 00000
ANNUAL MAINTENANCE FEE:
Twenty percent ( 20 %) of license fee exclusive of any discounts.
---------------- ----------
SOFTWARE PRODUCT(S) AND LICENSE FEE(S):
370-202 Connect3 Comm Server (Per Server) $ 1,466
--------------
TOTAL: $ 1,466
Page 5 of 5
Exhibit 10.2 (Continued)
INFORMATION TECHNOLOGY INC.
SOFTWARE LICENSE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"), and the
"Customer" identified below.
1. LICENSED SOFTWARE
1.1 LICENSE. Vendor grants to Customer and Customer accepts from Vendor a
nonexclusive and nontransferable license to use the software identified in
Appendix A (the "Software") under the terms set forth in this agreement. The
license herein granted shall commence upon the date of delivery of the software
and shall remain in effect for so long as Vendor's warranties set forth in
Article V remain in effect.
1.2 PROPRIETARY NATURE OF SOFTWARE AND TITLE. The Software and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Software (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
proprietary information and trade secrets, whether or not any portion thereof is
or may be validly copyrighted or patented, acknowledged to be protected by civil
and criminal law, and acknowledged to be of great value to Vendor. Except as
specifically licensed under this agreement, title and all ownership rights to
the Software and the Documentation remain with Vendor. Customer shall retain or
affix such evidences of ownership and proprietary notices as Vendor may
reasonably request. This paragraph shall survive the term or termination of this
agreement.
1.3 USE OF SOFTWARE. The Software may be used only for, by and on behalf
of Customer and only in connection with Customer's business operations. This
license is granted only for use at the single location identified in Appendix A,
upon a single computer system (CPU) as identified in Appendix A, and is limited
to processing of not more than the number of accounts (as hereinafter defined)
specified in Appendix A. This license may not be used upon any other computer or
at any other location except as provided under paragraph 1.4. In the event
Customer's usage exceeds the account limitation set forth in Appendix A, a new,
upgraded Software License Agreement shall be required, including the payment of
an additional license fee. For purposes of this Agreement, "accounts" are
defined as the total of all accounts (open or closed) for demand deposit, demand
deposit loan, savings, time savings, XXX, certificate of deposit, and loan
accounts, processed by Customer, for the institutions being serviced with the
Software licensed hereunder.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to use the
Software at the location identified in Appendix A due to an emergency, or to
test emergency procedures, Vendor grants to Customer the right to use the
Software at a location other than the location defined in Appendix A. Any such
use shall be subject to all other restrictions of this agreement and shall
continue only so long as the condition giving rise to such use continues. Prior
to commencing such use, if possible, and in any event within forty-eight (48)
hours of such use, Customer shall give Vendor written notice of the
circumstance, location and the expected length of such use. Failure to give
notice shall nullify Customer's right of emergency use, as herein granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to the
Software may not be assigned, licensed, sublicensed, pledged, or otherwise
transferred voluntarily, by operation of law or otherwise without Vendor's prior
written consent, and any such prohibited assignment shall be null and void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Software granted
under this agreement, Customer shall pay to Vendor the license fee specified in
Appendix A. Such license fee does not include, except as expressly provided in
this agreement or Appendix A hereto, installation or maintenance of the
Software, data base conversion, media, transportation charges or taxes, all of
which costs and taxes shall be the obligation of Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix A shall be
payable in the following manner:
(A) A percentage of the license fee, as specified in Appendix A,
upon execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon delivery of the
Software by Vendor to Customer.
Invoices respecting the license fee shall be rendered in accordance with the
above payment schedule and are payable to Vendor at Vendor's address set forth
below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder, Customer
shall pay all taxes (including, without limitation, sales, use, privilege, ad
valorem or excise taxes) and customs duties paid or now or hereafter payable,
however designated, levied or based on amounts payable to Vendor hereunder, on
Customer's use or possession of the Software under this agreement or upon the
presence of the Software at the location identified in Appendix A, but exclusive
of federal, state and local taxes based on Vendor's net income. Customer shall
not deduct from payments to Vendor any amounts paid or payable to third parties
for customs duties or taxes, however designated
2.4 CURRENCY. The purchase price and any other charges arising under this
agreement shall be invoiced and be payable in U.S. Dollars.
2.5 LATE PAYMENT. Customer shall pay a late payment charge of one and
one-half percent (1 1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereof) that such payment
is not made following its due date.
2.6 SECURITY. Vendor reserves and Customer grants to Vendor a security
interest in the rights of Customer for use of the Software and in the
Documentation as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the license fee set forth in
Appendix A. A copy of this agreement may be filed in appropriate filing offices
at any time after signature by Customer as a financing statement or Vendor may
require and Customer shall execute a separate financing statement for purposes
of perfecting Vendor's security interest granted pursuant to the provisions of
this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Software and Customer shall accept
delivery of the Software at Customer's address set forth below. Unless delayed,
as hereinafter provided for, delivery shall be completed within one (1) year of
the date this agreement is accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of delivery,
Vendor shall not be obligated to effect delivery of the Software except upon
thirty (30) days written notice by Customer to Vendor. If delay in delivery is
due to any cause beyond the control of Vendor, the date upon which delivery is
to be completed shall be extended by the number of days of such delay.
Page 1 of 5
3.3 TRAINING. Classes in the operation of the Software are available at
the offices of Vendor on a regularly scheduled basis. Customer's entitlement, if
any, to such training is as set forth in Appendix A for such additional charges,
if any, as may be set forth therein. Reasonable additional training will be
provided to customer at the offices of Vendor upon Customer's request, at
Vendor's normal rates with respect thereto. All travel, meal and lodging
expenses of Customer in connection with such training shall be borne by
Customer. On-site training or assistance will be available solely at Vendor's
discretion and will be charged to Customer at Vendor's normal rates together
with reasonable expenses for travel, meals, lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable assistance
and cooperation to Vendor in preparation of the Software and the delivery or
installation thereof. Such assistance and cooperation shall include, as
appropriate, reasonable access to Customer's facility and to Customer's records,
as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Software will be
delivered to Customer prior to or contemporaneously with the delivery of the
Software.
3.6 RISK OF LOSS. If the Software or the Documentation is lost or damaged,
in whole or in part, during shipment, Vendor will replace said Software or
Documentation at no additional charge to Customer. Upon delivery in good
condition of the Software and the Documentation, Customer shall be responsible
therefor and bear the risk of loss for said Software and Documentation.
3.7 CONVERSION ASSISTANCE. Vendor may, at its sole discretion, assist
Customer in the conversion of Customer's files from a computer processor or
in-house computer system at Vendor's normal charges for such assistance.
Expenses, including but not limited to computer time, travel, meals, lodging and
local transportation incurred connection therewith, shall be borne by Customer.
In no event shall Vendor be liable to Customer for loss of profits,
consequential, incidental, indirect or special damages arising from Vendor's
efforts to assist in the conversion of Customer's files. Vendor agrees to treat
Customer's confidential business with the same security as it would its own.
3.8 OPERATION. Customer acknowledges and agrees that it is exclusively
responsible for the operation, supervision, management and control of the
Software, including, but not limited to, providing adequate training for its
personnel, instituting appropriate security procedures, and implementing
reasonable procedures to examine and verify all output before use. Vendor shall
have no responsibility or liability for Customer's selection or use of the
Software or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing integrity
and proper operation of the Software, Customer agrees to implement, in the
manner instructed by Vendor, each error correction and each enhancement and
improvement provided to Customer by Vendor. Customer's failure to do so shall
relieve Vendor of any responsibility or liability whatsoever for any failure or
malfunction of the software as modified by a subsequent correction or
improvement, but in no such event shall Customer be relieved of the
responsibility for payment of fees and charges otherwise properly invoiced
during the term hereof. If requested by Vendor, Customer agrees to provide
written documentation and details to Vendor to substantiate problems and to
assist Vendor in the identification and detection of problems, errors and
malfunctions: and Customer agrees that Vendor shall have no obligation or
liability for said problems untilithas received such documentation and details
from Customer.
3.10 SECURITY AND CONFIDENTIALITY The security and confidentiality of
Customer's data, including the information of its depositors and other customers
contained therein is expressly agreed to be the sole responsibility of Customer.
Customer warrants thatitwill take all steps reasonably necessary to protect the
confidentiality of such data and to prevent unauthorized disclosure of or access
thereto. Customer hereby releases Vendor from any claim arising from or in any
way related to access to Customer's database using the Software via use of the
Internet or any similar means of electronic communication. Customer indemnifies
and holds Vendor harmless from and against any loss suffered by Customer and any
third party claim arising from any unauthorized access of (i) Customer's data,
or (ii) the information of Customer's account holders or other customers.
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps necessary,
including any required by Vendor, to ensure that neither the Software nor the
Documentation, nor any portion thereof, on magnetic tape or disk or in any other
form, is made available or disclosed by Customer or any of its agents or
employees to any other person, firm or corporation. Customer may disclose
relevant aspects of the Software and Documentation to its employees and, with
Vendor's prior written consent, agents to the extent such disclosure is
reasonably necessary to Customer's use of the Software, provided, however,
Customer agrees that R will cause all persons permitted such access to the
Software and the Documentation to observe and perform the foregoing
nondisclosure covenant, and that it will advise Vendor of the procedures
employed for this purpose. Customer shall hold Vendor harmless against any loss,
cost, expense, claim or liability, including reasonable attorneys fees,
resulting from Customer's breach of this non-disclosure obligation. This
paragraph shall survive the term or termination of this agreement.
4.2 COPIES. Customer agrees that while the Software and the Documentation
are in its custody and possession, it will not (a) copy or duplicate or permit
anyone else to copy or duplicate any of the Software, Documentation or
information furnished by Vendor, or (b) create or attempt to create, or permit
others to create or attempt to create, by reverse engineering or otherwise, the
source programs or any part thereof from the object program for the Software,
the Documentation or other information made available under this agreement or
otherwise, (whether oral, written, tangible or intangible). Notwithstanding the
foregoing. Customer may make and retain two (2) copies of the Software,
including all enhancements and changes thereto, only for use in emergencies or
to test emergency procedures and may copy for its own use and at its own expense
the Documentation, but shall advise Vendor of the specific item copied, the
number of copies made and their distribution. The original and any copies in
whole or in part of the Software or Documentation which are made pursuant to
this provision shall be the exclusive property of Vendor and shall be fully
subject to the provisions of this agreement Customer agrees to retain or place
Vendor's proprietary notice on any copies or partial copies made pursuant to
this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately of the
unauthorized possession, use, or knowledge of the Software, Documentation or any
information made available to Customer pursuant to this agreement, by any person
or organization not authorized by this agreement to have such possession, use or
knowledge. Customer will, thereafter, fully cooperate with Vendor in the
protection and redress of Vendor's proprietary rights. Customer's compliance
with this paragraph shall not, however, be construed in any way as a waiver of
Vendor's rights against Customer for Customer's negligent or intentional harm to
Vendor's proprietary rights, or for breach of Vendor's contractual rights.
4.4 INSPECTION. To assist Vendor in the protection of its proprietary
rights, Customer shall permit representatives of Vendor to inspect the Software
and Documentation and their use, including inspection of any location in which
they are being used or kept at all reasonable times.
Page 2 of 5
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense, sell or otherwise convey or to disclose the Software or
Documentation, in any manner contrary to the terms of this agreement or in
derogation of Vendor's proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition to
any other remedies available to it, the right to injunctive relief enjoining
such actions, Customer hereby acknowledging that other remedies are inadequate.
4.6 ACCESS TO SOURCE CODE. Vendor has deposited the Software in source
code form and Documentation sufficient to facilitate maintenance, modification
or correction of the Software with the custodial agent named in Appendix A.
Vendor reserves the right to change said custodial agent at any time with
written notification to Customer within sixty (60) days of said change. If
Vendor, its successors or assigns shall cease to conduct business for any period
in excess of thirty (30) days, Customer shall have the right to obtain, for its
own and sole use only, a single copy of the then current version of the source
code form of the Software supplied under this agreement, and a single copy of
the Documentation associated therewith, upon payment to the person in control of
the said source code form of the Software of the reasonable cost of making each
copy. The source code form of the Software supplied to Customer under this
paragraph shall be subject to each and every restriction on use set forth in
this agreement. Customer acknowledges that the source code form of the Software
and the associated Documentation are extraordinarily valuable proprietary
property of Vendor and will be guarded against unauthorized use or disclosure
with great care.
4.7 VENDOR'S EMPLOYEES. Customer acknowledges the relationship of Vendor
and its employees is of significant value to Vendor and that Vendor's employees
are possessed of specialized training and knowledge regarding Vendor and its
proprietary property, imparted to such employees at significant expense to
Vendor. Accordingly, Customer agrees that during the term hereof and for a
period of eighteen (18) months thereafter, Customer shall not, directly or
indirectly, solicit for employment or employ any person who is or within the
preceding twelve (12) months has been an employee of Vendor. Vendor shall have,
in addition to any other remedies available to it, the right to injunctive
relief enjoining any violations of this paragraph 4.7, Customer hereby
acknowledging that other remedies are inadequate. At Vendor's sole option,
Vendor may waive its right to injunctive relief and its right to exercise any
other remedy which might be available to it. In consideration of such waiver,
Customer shall thereupon pay Vendor as liquidated damages a fee equal in amount
to the total compensation paid by Vendor to the former employee for the twelve
(1 2) months next preceding the date of termination of employment of such
employee by Vendor.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 SOFTWARE WARRANTY. Vendor warrants that during the first twelve (12)
months following delivery of the Software (the "Warranty Period"), the Software
will perform in accordance with the then current Documentation provided
Customer, and further warrants that it has the right to authorize the use of the
Software under this agreement. Vendor's obligation and liability under this
paragraph shall, however, be limited to the replacement and correction of the
Software so that it will so perform, or to obtaining any authorization necessary
to make effective the grant of license to Customer of the use of the Software.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend Customer
from any claim or any suit based on any claim that the use of the Software by
Customer under this agreement infringes on any patent, copyright, trademark, or
other proprietary right of any third party, provided that Customer gives Vendor
prompt and written notice of any such claim or suit and permits Vendor to
control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by Vendor
under paragraph 5.5, shall be subject to extension for successive one-year
warranty periods commencing on the first anniversary date of the delivery of the
Software for four (4) successive years. Such extension shall be deemed to
automatically occur unless notice is given by either Customer or Vendor of an
election not to so extend, such notice to be given on or prior to the sixtieth
(60th) day preceding the anniversary date of delivery. Any such extension shall
in no event be effective unless Customer shall have paid to Vendor on or prior
to the anniversary date of delivery an annual maintenance fee set forth in
Appendix A. Extension of Vendor's warranties beyond the fifth (5th) anniversary
shall be governed by Vendor's maintenance extension agreement.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with all
enhancements and changes to the Software designed or developed by Vendor and
released to its other customers during the Warranty Period. Any change or
enhancement to the Software, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license fee
of any enhancements or corrections developed by Customer. Vendor reserves the
right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, report formats, types of hardware
supported, throughput, and other related programming and documentation
improvements required to maintain the Software current. As part of these
services, Vendor will provide Customer the changes with written instructions
concerning implementation. It is understood and agreed that Vendor provision of
improvements and enhancements under this paragraph does not include providing to
Customer a new set of software which may result from rewriting the Software.
Vendor alone shall determine whether the work product of Vendor constitutes new
software as a result of a complete rewrite (which is not provided to Customer
hereunder) or an improvement or enhancement of the Software (which will be
provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in paragraphs 5.1
and 5.2 and Customer's rights under paragraph 5.5 shall immediately terminate if
the Software is revised, changed, enhanced, modified or maintained by any one
other than Vendor without the prior specific direction or written approval of
Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that Vendor's
responsibilities in the event of its breach of the warranties contained in
paragraphs 5.1 and 5.2 are as set forth in said paragraphs. Vendor's liability
for damages, including but not limited to liability for patent or copyright
infringement, regardless of the form of action, shall not exceed the license fee
set forth in Appendix A to this agreement and shall arise only if the remedies
provided in paragraphs 5.1 and 5.2 are not fulfilled by Vendor. Customer further
agrees that Vendor will not be liable for any lost profits, or for any claim or
demand against Customer by any other party, except a claim for patent or
copyright infringement as provided herein. IN NO EVENT WILL VENDOR BE LIABLE FOR
CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. No action, regardless of form, arising out of this agreement, may be
brought by either party more than one (1) year after the cause of action has
accrued, except that an action for non-payment may be brought within one (1)
year after the date of last payment. No action by Vendor for wrongful disclosure
or use of the Software or Documentation shall be deemed to have accrued until
Vendor receives actual notice of such wrongful disclosure or use.
Page 3 of 5
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
5.8 THIRD PARTY SOFTWARE. The Software licensed hereunder may include
software developed and owned by third party licensors, Vendor's sole warranty
with respect to such third party software is that Vendor possesses the legal
right and authority to relicense such third party software to Customer. Specific
warranties regarding performance of such third party software shall be limited
to the warranties, if any, provided by such third party licensors. In exchange
for Customer's agreement not to assert any claim for breach of such third party
licensor's warranties against Vendor, Vendor hereby assigns to Customer such
right, if any, as Vendor may possess to assert a claim for breach of warranty
against the third party licensor.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement and the license
granted hereunder in the event of a default by Customer unless Customer shall
have cured the event of default, as hereinafter defined, within twenty (20) days
after notice of such event of default given by Vendor to Customer. This
agreement and the license granted hereunder shall automatically terminate if
Vendor's warranties are not renewed as contemplated in paragraph 5.4 hereof.
Upon any termination of this agreement, Customer shall deliver to Vendor the
Software, the Documentation and all copies thereof and shall also warrant in
writing that all copies have been returned to Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as any of the
following:
(A) Customer's failure to pay any amounts required to be paid to Vendor
under this agreement on a timely basis;
(B) Any attempt (i) to assign, sell, mortgage, lease, sublease, license,
sublicense or otherwise convey, (ii) to grant any interest in, right of use
of, or access to, or (iii) to otherwise disclose the Software or the
Documentation, except, in any such case, as herein expressly permitted or as
consented to in writing by the Vendor;
(C) Causing or permitting any encumbrance, of any nature whatsoever to
attach to Customer's interest in the Software in favor of any person or
entity other than Vendor;
(D) The entry of any order for relief under any provision of the federal
bankruptcy code in any bankruptcy proceedings initiated by or against
Customer; or
(E) Customer's breach of any of the terms or conditions of this
agreement.
6.3 DAMAGES. Upon the occurrence of an event of default without cure
within the period of time above-provided, all license or other fees payable to
Vendor under this agreement shall without notice or demand by Vendor become
immediately due and payable as liquidated damages, This provision for liquidated
damages shall not be regarded as a waiver by Vendor of any other rights to which
it may be entitled in the event of Customer's default, but rather, such remedy
shall be an addition to any other remedy lawfully available to Vendor.
VI. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference purposes only
and are not to be considered a part of this agreement,
7.2 FORCE MAJEURE. No party shall be liable for delay in performance
hereunder due to causes beyond its control, including but not limited to acts of
God, fires, strikes, delinquencies of suppliers, acts of war or intervention by
any governmental authority, and each party shall take steps to minimize any such
delay.
7.3 WAIVER. No waiver of any breach of any provision of this agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof and no waiver shall be effective unless made
in writing and signed by an authorized representative of the party to be charged
therewith.
7.4 SEVERABILITY. In the event that any Provision of this agreement shall
be illegal or otherwise unenforceable, such provision shall be severed from this
agreement and the entire agreement shall not fail on account thereof, the
balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or permitted
to give hereunder shall be addressed to the party to be charged therewith at the
address set forth below and shall be given by certified or registered mail. Any
such notice shall be deemed given on the date of deposit in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ
THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PARTIES
FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT TO IT
CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS OF THE
AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS, CONDITIONS,
WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING
TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER AGREE THAT THIS
AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY A PRIOR OR EXISTING
COURSE OF DEALINGS BETWEEN THE PARTIES. BY ANY USAGE OF TRADE OR CUSTOM, OR BY
ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO THIS AGREEMENT OR
OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR OTHER INSTRUMENT
COVERING THE SOFTWARE HEREIN SPECIFIED, IT IS UNDERSTOOD AND AGREED THAT SUCH
PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S INTERNAL USE AND PURPOSES
ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of Nebraska,
and shall be enforced in accordance with and governed by the laws of the State
of Nebraska
7.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
shall be instituted in and litigated in the state or federal courts of the State
of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of Nebraska
as its agent for receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is brought
in connection with this agreement the prevailing party therein shall be entitled
to recover its costs and reasonable attorneys fees.
7.10 COUNTERPARTS/FACSIMILES. This agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any signature to this
agreement may be transmitted by fax and a facsimile signature received by a
party hereto shall for all purposes be deemed an original signature hereto.
7.11 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
Page 4 of 5
CUSTOMER: VENDOR:
XXXXX RIVER COMMUNITY BANK INFORMATION TECHNOLOGY, INC.
---------------------------------
Signature: Signature:
---------------------------------- ---------------------------------------
Name: Name: Xxxxxxx X. Xxxxx
--------------------------------------- ---------------------------------------------
Title: Title: President
----------------------------------- --------------------------------------------
Address: 000 Xxxx Xxxxxx Xxxxxx Address: 0000 Xxx Xxxxxx Xxxx
---------------------------------- ------------------------------------------
Xxxxxxxxxxxx XX 00000 Xxxxxxx, XX 00000
---------------------------------- ------------------------------------------
Date: 11/5/99 Date Accepted: November 9, 1999
---------------------------------- ------------------------------------
APPENDIX A
DUE UPON EXECUTION: 30% CUSTODIAL AGENT:
------------------------
COMPUTER SYSTEM (CPU): NDP250 (A99) West Gate Bank, 0000 Xxxx 0 Xxxxxx, Xxxxxxx, XX 00000
--------------------
LOCATION WHERE THE SOFTWARE PRODUCT(S) WILL BE USED:
CUSTOMER'S ENTITLEMENT TO TRAINING:
Customer is entitled to 0 days training for 0 Xxxxx River Community Bank
--------- ---------
person(s) at $ 0 000 Xxxx Xxxxxx Xxxxxx
----------
Xxxxxxxxxxxx, XX 00000
ANNUAL MAINTENANCE FEE:
Twenty percent (20%) of license fee exclusive of any discounts.
------------- ----------
SOFTWARE PRODUCT(S) AND LICENSE FEE(S):
106-912 NDP250 MICR/Image Capture $ 24,437
---------------
TOTAL: $ 24,437
Page 5 of 5
Exhibit 10.2(Continued)
INFORMATION TECHNOLOGY INC.
SOFTWARE LICENSE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"), and the
"Customer" identified below.
1. LICENSED SOFTWARE
1.1 LICENSE. Vendor grants to Customer and Customer accepts from Vendor a
nonexclusive and nontransferable license to use the software identified in
Appendix A (the "Software") under the terms set forth in this agreement. The
license herein granted shall commence upon the date of delivery of the software
and shall remain in effect for so long as Vendor's warranties set forth in
Article V remain in effect.
1.2 PROPRIETARY NATURE OF SOFTWARE AND TITLE. The Software and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Software (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
proprietary information and trade secrets, whether or not any portion thereof is
or may be validly copyrighted or patented, acknowledged to be protected by civil
and criminal law, and acknowledged to be of great value to Vendor. Except as
specifically licensed under this agreement, title and all ownership rights to
the Software and the Documentation remain with Vendor. Customer shall retain or
affix such evidences of ownership and proprietary notices as Vendor may
reasonably request. This paragraph shall survive the term or termination of this
agreement.
1.3 USE OF SOFTWARE. The Software may be used only for, by and on behalf of
Customer and only in connection with Customer's business operations. This
license is granted only for use at the single location identified in Appendix A,
upon a single computer system (CPU) as identified in Appendix A, and is limited
to processing of not more than the number of accounts (as hereinafter defined)
specified in Appendix A. This license may not be used upon any other computer or
at any other location except as provided under paragraph 1.4. In the event
Customer's usage exceeds the account limitation set forth in Appendix A, a new,
upgraded Software License Agreement shall be required, including the payment of
an additional license fee. For purposes of this Agreement, "accounts" are
defined as the total of all accounts (open or closed) for demand deposit, demand
deposit loan, savings, time savings, XXX, certificate of deposit, and loan
accounts, processed by Customer, for the institutions being serviced with the
Software licensed hereunder.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to use the
Software at the location identified in Appendix A due to an emergency, or to
test emergency procedures, Vendor grants to Customer the right to use the
Software at a location other than the location defined in Appendix A. Any such
use shall be subject to all other restrictions of this agreement and shall
continue only so long as the condition giving rise to such use continues. Prior
to commencing such use, if possible, and in any event within forty-eight (48)
hours of such use, Customer shall give Vendor written notice of the
circumstance, location and the expected length of such use. Failure to give
notice shall nullify Customer's right of emergency use, as herein granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to the
Software may not be assigned, licensed, sublicensed, pledged, or otherwise
transferred voluntarily, by operation of law or otherwise without Vendor's prior
written consent, and any such prohibited assignment shall be null and void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Software granted
under this agreement, Customer shall pay to Vendor the license fee specified in
Appendix A. Such license fee does not include, except as expressly provided in
this agreement or Appendix A hereto, installation or maintenance of the
Software, data base conversion, media, transportation charges or taxes, all of
which costs and taxes shall be the obligation of Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix A shall be payable
in the following manner:
(A) A percentage of the license fee, as specified in Appendix A,
upon execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon delivery of the
Software by Vendor to Customer.
Invoices respecting the license fee shall be rendered in accordance with the
above payment schedule and are payable to Vendor at Vendor's address set forth
below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder, Customer shall
pay all taxes (including, without limitation, sales, use, privilege, ad valorem
or excise taxes) and customs duties paid or now or hereafter payable, however
designated, levied or based on amounts payable to Vendor hereunder, on
Customer's use or possession of the Software under this agreement or upon the
presence of the Software at the location identified in Appendix A, but exclusive
of federal, state and local taxes based on Vendor's net income. Customer shall
not deduct from payments to Vendor any amounts paid or payable to third parties
for customs duties or taxes, however designated
2.4 CURRENCY. The purchase price and any other charges arising under this
agreement shall be invoiced and be payable in U.S. Dollars.
2.5 LATE PAYMENT. Customer shall pay a late payment charge of one and
one-half percent (1 1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereof) that such payment
is not made following its due date.
2.6 SECURITY. Vendor reserves and Customer grants to Vendor a security
interest in the rights of Customer for use of the Software and in the
Documentation as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the license fee set forth in
Appendix A. A copy of this agreement may be filed in appropriate filing offices
at any time after signature by Customer as a financing statement or Vendor may
require and Customer shall execute a separate financing statement for purposes
of perfecting Vendor's security interest granted pursuant to the provisions of
this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Software and Customer shall accept
delivery of the Software at Customer's address set forth below. Unless delayed,
as hereinafter provided for, delivery shall be completed within one (1) year of
the date this agreement is accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of delivery,
Vendor shall not be obligated to effect delivery of the Software except upon
thirty (30) days written notice by Customer to Vendor. If delay in delivery is
due to any cause beyond the control of Vendor, the date upon which delivery is
to be completed shall be extended by the number of days of such delay.
Page 1 of 5
3.3 TRAINING. Classes in the operation of the Software are available at the
offices of Vendor on a regularly scheduled basis. Customer's entitlement, if
any, to such training is as set forth in Appendix A for such additional charges,
if any, as may be set forth therein. Reasonable additional training will be
provided to customer at the offices of Vendor upon Customer's request, at
Vendor's normal rates with respect thereto. All travel, meal and lodging
expenses of Customer in connection with such training shall be borne by
Customer. On-site training or assistance will be available solely at Vendor's
discretion and will be charged to Customer at Vendor's normal rates together
with reasonable expenses for travel, meals, lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable assistance and
cooperation to Vendor in preparation of the Software and the delivery or
installation thereof. Such assistance and cooperation shall include, as
appropriate, reasonable access to Customer's facility and to Customer's records,
as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Software will be
delivered to Customer prior to or contemporaneously with the delivery of the
Software.
3.6 RISK OF LOSS. If the Software or the Documentation is lost or damaged,
in whole or in part, during shipment, Vendor will replace said Software or
Documentation at no additional charge to Customer. Upon delivery in good
condition of the Software and the Documentation, Customer shall be responsible
therefor and bear the risk of loss for said Software and Documentation.
3.7 CONVERSION ASSISTANCE. Vendor may, at its sole discretion, assist
Customer in the conversion of Customer's files from a computer processor or
in-house computer system at Vendor's normal charges for such assistance.
Expenses, including but not limited to computer time, travel, meals, lodging and
local transportation incurred connection therewith, shall be borne by Customer.
In no event shall Vendor be liable to Customer for loss of profits,
consequential, incidental, indirect or special damages arising from Vendor's
efforts to assist in the conversion of Customer's files. Vendor agrees to treat
Customer's confidential business with the same security as it would its own.
3.8 OPERATION. Customer acknowledges and agrees that it is exclusively
responsible for the operation, supervision, management and control of the
Software, including, but not limited to, providing adequate training for its
personnel, instituting appropriate security procedures, and implementing
reasonable procedures to examine and verify all output before use. Vendor shall
have no responsibility or liability for Customer's selection or use of the
Software or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing integrity and
proper operation of the Software, Customer agrees to implement, in the manner
instructed by Vendor, each error correction and each enhancement and improvement
provided to Customer by Vendor. Customer's failure to do so shall relieve Vendor
of any responsibility or liability whatsoever for any failure or malfunction of
the software as modified by a subsequent correction or improvement, but in no
such event shall Customer be relieved of the responsibility for payment of fees
and charges otherwise properly invoiced during the term hereof. If requested by
Vendor, Customer agrees to provide written documentation and details to Vendor
to substantiate problems and to assist Vendor in the identification and
detection of problems, errors and malfunctions: and Customer agrees that Vendor
shall have no obligation or liability for said problems untilithas received such
documentation and details from Customer.
3.10 SECURITY AND CONFIDENTIALITY The security and confidentiality of
Customer's data, including the information of its depositors and other customers
contained therein is expressly agreed to be the sole responsibility of Customer.
Customer warrants thatitwill take all steps reasonably necessary to protect the
confidentiality of such data and to prevent unauthorized disclosure of or access
thereto. Customer hereby releases Vendor from any claim arising from or in any
way related to access to Customer's database using the Software via use of the
Internet or any similar means of electronic communication. Customer indemnifies
and holds Vendor harmless from and against any loss suffered by Customer and any
third party claim arising from any unauthorized access of (i) Customer's data,
or (ii) the information of Customer's account holders or other customers.
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps necessary,
including any required by Vendor, to ensure that neither the Software nor the
Documentation, nor any portion thereof, on magnetic tape or disk or in any other
form, is made available or disclosed by Customer or any of its agents or
employees to any other person, firm or corporation. Customer may disclose
relevant aspects of the Software and Documentation to its employees and, with
Vendor's prior written consent, agents to the extent such disclosure is
reasonably necessary to Customer's use of the Software, provided, however,
Customer agrees that R will cause all persons permitted such access to the
Software and the Documentation to observe and perform the foregoing
nondisclosure covenant, and that it will advise Vendor of the procedures
employed for this purpose. Customer shall hold Vendor harmless against any loss,
cost, expense, claim or liability, including reasonable attorneys fees,
resulting from Customer's breach of this non-disclosure obligation. This
paragraph shall survive the term or termination of this agreement.
4.2 COPIES. Customer agrees that while the Software and the Documentation
are in its custody and possession, it will not (a) copy or duplicate or permit
anyone else to copy or duplicate any of the Software, Documentation or
information furnished by Vendor, or (b) create or attempt to create, or permit
others to create or attempt to create, by reverse engineering or otherwise, the
source programs or any part thereof from the object program for the Software,
the Documentation or other information made available under this agreement or
otherwise, (whether oral, written, tangible or intangible). Notwithstanding the
foregoing. Customer may make and retain two (2) copies of the Software,
including all enhancements and changes thereto, only for use in emergencies or
to test emergency procedures and may copy for its own use and at its own expense
the Documentation, but shall advise Vendor of the specific item copied, the
number of copies made and their distribution. The original and any copies in
whole or in part of the Software or Documentation which are made pursuant to
this provision shall be the exclusive property of Vendor and shall be fully
subject to the provisions of this agreement Customer agrees to retain or place
Vendor's proprietary notice on any copies or partial copies made pursuant to
this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately of the
unauthorized possession, use, or knowledge of the Software, Documentation or any
information made available to Customer pursuant to this agreement, by any person
or organization not authorized by this agreement to have such possession, use or
knowledge. Customer will, thereafter, fully cooperate with Vendor in the
protection and redress of Vendor's proprietary rights. Customer's compliance
with this paragraph shall not, however, be construed in any way as a waiver of
Vendor's rights against Customer for Customer's negligent or intentional harm to
Vendor's proprietary rights, or for breach of Vendor's contractual rights.
4.4 INSPECTION. To assist Vendor in the protection of its proprietary
rights, Customer shall permit representatives of Vendor to inspect the Software
and Documentation and their use, including inspection of any location in which
they are being used or kept at all reasonable times.
Page 2 of 5
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense, sell or otherwise convey or to disclose the Software or
Documentation, in any manner contrary to the terms of this agreement or in
derogation of Vendor's proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition to
any other remedies available to it, the right to injunctive relief enjoining
such actions, Customer hereby acknowledging that other remedies are inadequate.
4.6 ACCESS TO SOURCE CODE. Vendor has deposited the Software in source code
form and Documentation sufficient to facilitate maintenance, modification or
correction of the Software with the custodial agent named in Appendix A. Vendor
reserves the right to change said custodial agent at any time with written
notification to Customer within sixty (60) days of said change. If Vendor, its
successors or assigns shall cease to conduct business for any period in excess
of thirty (30) days, Customer shall have the right to obtain, for its own and
sole use only, a single copy of the then current version of the source code form
of the Software supplied under this agreement, and a single copy of the
Documentation associated therewith, upon payment to the person in control of the
said source code form of the Software of the reasonable cost of making each
copy. The source code form of the Software supplied to Customer under this
paragraph shall be subject to each and every restriction on use set forth in
this agreement. Customer acknowledges that the source code form of the Software
and the associated Documentation are extraordinarily valuable proprietary
property of Vendor and will be guarded against unauthorized use or disclosure
with great care.
4.7 VENDOR'S EMPLOYEES. Customer acknowledges the relationship of Vendor and
its employees is of significant value to Vendor and that Vendor's employees are
possessed of specialized training and knowledge regarding Vendor and its
proprietary property, imparted to such employees at significant expense to
Vendor. Accordingly, Customer agrees that during the term hereof and for a
period of eighteen (18) months thereafter, Customer shall not, directly or
indirectly, solicit for employment or employ any person who is or within the
preceding twelve (12) months has been an employee of Vendor. Vendor shall have,
in addition to any other remedies available to it, the right to injunctive
relief enjoining any violations of this paragraph 4.7, Customer hereby
acknowledging that other remedies are inadequate. At Vendor's sole option,
Vendor may waive its right to injunctive relief and its right to exercise any
other remedy which might be available to it. In consideration of such waiver,
Customer shall thereupon pay Vendor as liquidated damages a fee equal in amount
to the total compensation paid by Vendor to the former employee for the twelve
(1 2) months next preceding the date of termination of employment of such
employee by Vendor.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 SOFTWARE WARRANTY. Vendor warrants that during the first twelve (12)
months following delivery of the Software (the "Warranty Period"), the Software
will perform in accordance with the then current Documentation provided
Customer, and further warrants that it has the right to authorize the use of the
Software under this agreement. Vendor's obligation and liability under this
paragraph shall, however, be limited to the replacement and correction of the
Software so that it will so perform, or to obtaining any authorization necessary
to make effective the grant of license to Customer of the use of the Software.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend Customer
from any claim or any suit based on any claim that the use of the Software by
Customer under this agreement infringes on any patent, copyright, trademark, or
other proprietary right of any third party, provided that Customer gives Vendor
prompt and written notice of any such claim or suit and permits Vendor to
control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by Vendor
under paragraph 5.5, shall be subject to extension for successive one-year
warranty periods commencing on the first anniversary date of the delivery of the
Software for four (4) successive years. Such extension shall be deemed to
automatically occur unless notice is given by either Customer or Vendor of an
election not to so extend, such notice to be given on or prior to the sixtieth
(60th) day preceding the anniversary date of delivery. Any such extension shall
in no event be effective unless Customer shall have paid to Vendor on or prior
to the anniversary date of delivery an annual maintenance fee set forth in
Appendix A. Extension of Vendor's warranties beyond the fifth (5th) anniversary
shall be governed by Vendor's maintenance extension agreement.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with all
enhancements and changes to the Software designed or developed by Vendor and
released to its other customers during the Warranty Period. Any change or
enhancement to the Software, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license fee
of any enhancements or corrections developed by Customer. Vendor reserves the
right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, report formats, types of hardware
supported, throughput, and other related programming and documentation
improvements required to maintain the Software current. As part of these
services, Vendor will provide Customer the changes with written instructions
concerning implementation. It is understood and agreed that Vendor provision of
improvements and enhancements under this paragraph does not include providing to
Customer a new set of software which may result from rewriting the Software.
Vendor alone shall determine whether the work product of Vendor constitutes new
software as a result of a complete rewrite (which is not provided to Customer
hereunder) or an improvement or enhancement of the Software (which will be
provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in paragraphs 5.1
and 5.2 and Customer's rights under paragraph 5.5 shall immediately terminate if
the Software is revised, changed, enhanced, modified or maintained by any one
other than Vendor without the prior specific direction or written approval of
Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that Vendor's
responsibilities in the event of its breach of the warranties contained in
paragraphs 5.1 and 5.2 are as set forth in said paragraphs. Vendor's liability
for damages, including but not limited to liability for patent or copyright
infringement, regardless of the form of action, shall not exceed the license fee
set forth in Appendix A to this agreement and shall arise only if the remedies
provided in paragraphs 5.1 and 5.2 are not fulfilled by Vendor. Customer further
agrees that Vendor will not be liable for any lost profits, or for any claim or
demand against Customer by any other party, except a claim for patent or
copyright infringement as provided herein. IN NO EVENT WILL VENDOR BE LIABLE FOR
CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. No action, regardless of form, arising out of this agreement, may be
brought by either party more than one (1) year after the cause of action has
accrued, except that an action for non-payment may be brought within one (1)
year after the date of last payment. No action by Vendor for wrongful disclosure
or use of the Software or Documentation shall be deemed to have accrued until
Vendor receives actual notice of such wrongful disclosure or use.
Page 3 of 5
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
5.8 THIRD PARTY SOFTWARE. The Software licensed hereunder may include software
developed and owned by third party licensors, Vendor's sole warranty with
respect to such third party software is that Vendor possesses the legal right
and authority to relicense such third party software to Customer. Specific
warranties regarding performance of such third party software shall be limited
to the warranties, if any, provided by such third party licensors. In exchange
for Customer's agreement not to assert any claim for breach of such third party
licensor's warranties against Vendor, Vendor hereby assigns to Customer such
right, if any, as Vendor may possess to assert a claim for breach of warranty
against the third party licensor.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement and the license granted
hereunder in the event of a default by Customer unless Customer shall have cured
the event of default, as hereinafter defined, within twenty (20) days after
notice of such event of default given by Vendor to Customer. This agreement and
the license granted hereunder shall automatically terminate if Vendor's
warranties are not renewed as contemplated in paragraph 5.4 hereof. Upon any
termination of this agreement, Customer shall deliver to Vendor the Software,
the Documentation and all copies thereof and shall also warrant in writing that
all copies have been returned to Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as any of the
following:
(A) Customer's failure to pay any amounts required to be paid to Vendor
under this agreement on a timely basis;
(B) Any attempt (i) to assign, sell, mortgage, lease, sublease, license,
sublicense or otherwise convey, (ii) to grant any interest in, right of use
of, or access to, or (iii) to otherwise disclose the Software or the
Documentation, except, in any such case, as herein expressly permitted or as
consented to in writing by the Vendor;
(C) Causing or permitting any encumbrance, of any nature whatsoever to
attach to Customer's interest in the Software in favor of any person or
entity other than Vendor;
(D) The entry of any order for relief under any provision of the federal
bankruptcy code in any bankruptcy proceedings initiated by or against
Customer; or
(E) Customer's breach of any of the terms or conditions of this
agreement.
6.3 DAMAGES. Upon the occurrence of an event of default without cure within
the period of time above-provided, all license or other fees payable to Vendor
under this agreement shall without notice or demand by Vendor become immediately
due and payable as liquidated damages, This provision for liquidated damages
shall not be regarded as a waiver by Vendor of any other rights to which it may
be entitled in the event of Customer's default, but rather, such remedy shall be
an addition to any other remedy lawfully available to Vendor.
VI. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference purposes only
and are not to be considered a part of this agreement,
7.2 FORCE MAJEURE. No party shall be liable for delay in performance
hereunder due to causes beyond its control, including but not limited to acts of
God, fires, strikes, delinquencies of suppliers, acts of war or intervention by
any governmental authority, and each party shall take steps to minimize any such
delay.
7.3 WAIVER. No waiver of any breach of any provision of this agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the same or
any other provisions hereof and no waiver shall be effective unless made in
writing and signed by an authorized representative of the party to be charged
therewith.
7.4 SEVERABILITY. In the event that any Provision of this agreement shall be
illegal or otherwise unenforceable, such provision shall be severed from this
agreement and the entire agreement shall not fail on account thereof, the
balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or permitted
to give hereunder shall be addressed to the party to be charged therewith at the
address set forth below and shall be given by certified or registered mail. Any
such notice shall be deemed given on the date of deposit in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ THIS
AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PARTIES
FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT TO IT
CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS OF THE
AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS, CONDITIONS,
WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING
TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER AGREE THAT THIS
AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY A PRIOR OR EXISTING
COURSE OF DEALINGS BETWEEN THE PARTIES. BY ANY USAGE OF TRADE OR CUSTOM, OR BY
ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO THIS AGREEMENT OR
OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR OTHER INSTRUMENT
COVERING THE SOFTWARE HEREIN SPECIFIED, IT IS UNDERSTOOD AND AGREED THAT SUCH
PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S INTERNAL USE AND PURPOSES
ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of Nebraska,
and shall be enforced in accordance with and governed by the laws of the State
of Nebraska
7.8 CHOICE OF FORUM. Any action arising out of or related to this agreement
or the transaction herein described, whether at law or in equity, shall be
instituted in and litigated in the state or federal courts of the State of
Nebraska. In accordance herewith, the parties hereto submit to the jurisdiction
of the courts of said state. Any party being not a resident of Nebraska at the
time of suit hereby appoints the Secretary of State of Nebraska as its agent for
receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is brought
in connection with this agreement the prevailing party therein shall be entitled
to recover its costs and reasonable attorneys fees.
7.10 COUNTERPARTS/FACSIMILES. This agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any signature to this
agreement may be transmitted by fax and a facsimile signature received by a
party hereto shall for all purposes be deemed an original signature hereto.
7.11 EFFECTIVE DATE. This agreement shall be effective on the date accepted
and executed by an authorized representative of Vendor.
Page 4 of 5
CUSTOMER: VENDOR:
XXXXX RIVER COMMUNITY BANK INFORMATION TECHNOLOGY, INC.
--------------------------------------
Signature: Signature:
------------------------------------------- ------------------------------------------
Name: Name: Xxxxxxx X. Xxxxx
------------------------------------------------ -----------------------------------------------
Title: Title: President
---------------------------------------------- -------------------------------------------
Address: 000 Xxxx Xxxxxx Xxxxxx Address: 0000 Xxx Xxxxxx Xxxx
-------------------------------------------- -------------------------------------------
Xxxxxxxxxxxx XX 00000 Xxxxxxx, XX 00000
-------------------------------------------- -------------------------------------------
Date: 11/5/99 Date Accepted: November 9, 1999
-------------------------------------------- --------------------------------------
APPENDIX A
DUE UPON EXECUTION: 30% CUSTODIAL AGENT:
------------------------
COMPUTER SYSTEM (CPU): N/A (A99) West Gate Bank, 0000 Xxxx 0 Xxxxxx, Xxxxxxx, XX 00000
--------------------
LOCATION WHERE THE SOFTWARE PRODUCT(S) WILL BE USED:
CUSTOMER'S ENTITLEMENT TO TRAINING:
Customer is entitled to 0 days training for 0 Xxxxx River Community Bank
--------- ---------
person(s) at $ 0 000 Xxxx Xxxxxx Xxxxxx
----------
Xxxxxxxxxxxx, XX 00000
ANNUAL MAINTENANCE FEE:
Twenty percent (20%) of license fee exclusive of any discounts.
------------------ ---------
SOFTWARE PRODUCT(S) AND LICENSE FEE(S):
106-729 Director Check Archive - Less Than 3,500 Average Daily Item Volume $ 17,214
----------------
TOTAL: $ 17,214
