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EXHIBIT 10.23
MASTER AGREEMENT - TERMS AND CONDITIONS
This Master Agreement (this "Agreement") is made between Netzee, Inc.
("Netzee") and the single business entity or organization identified as
"Bankers Bank" in Addendum I -- License/Services Schedule (the
"License/Services Schedule") and Addendum II - Maintenance Agreement (the
"Maintenance Agreement").
On or before sixty (60) days prior to the expiration of the initial one (1)
year term specified for the initial License/Services Schedule, and on or before
sixty (60) days prior to the expiration of the initial and any renewal terms
specified for any Maintenance Agreement, Bankers Bank may elect to enter into a
Maintenance Agreement on the terms specified in the attached form of
Maintenance Agreement and this Agreement. In the event that Bankers Bank does
not deliver written notice to Netzee on or before sixty (60) days prior to such
expiration, then Bankers Bank shall be deemed to have elected to enter into a
Maintenance Agreement for an additional one (1) year term, with rights to renew
as specified in this paragraph.
Bankers Bank may elect in its sole option to add additional Participating Banks
to this Agreement by notifying Netzee of such addition pursuant to the
License/Services Schedule. In addition, if the parties agree upon other
Services or Software that Netzee may provide Banker's Bank, they shall document
their agreement through additional Addenda as applicable.
Each Maintenance Addendum (initial and subsequent) will be effective when
signed by Bankers Bank. All terms and conditions set forth in this Agreement
are automatically incorporated in, and deemed part of, each Addendum. Unless
otherwise stated in an Addendum, each Addendum is intended to be a separate
contract providing for separate Software and Services as identified therein.
1. DEFINITIONS. In addition to other terms defined in this Agreement, the
following definitions shall apply as applicable: (a) "Bankers Bank
Content" means any information or data, including without limitation
account or personal data of Participating Banks or its customers, that is
provided by Bankers Bank or Participating Banks and posted on or accessed
through Bankers Bank Website or otherwise processed by the Software. (b)
"Internet" means a worldwide series of interconnected computer networks,
which communicate by a shared network communication protocol known as
Transmission Control Protocol/Internet Protocol or any successor or
alternative protocol. (c) "Intranet" means a computer network (whether
local area network or wide area network) that uses, in whole or in part,
World Wide Web browser software and Internet protocols, or any successors
or alternatives thereto, as the platform for an entity's internal
applications and/or as a gateway to the Internet. (d) "Services" are as
defined in each Addendum and in this Agreement. (e) "World Wide Web" or
"Web" means the Internet-based distributed information service that uses
the hypertext transfer protocol or any successors or alternatives thereto.
(g) "Affiliates" means an entity and all persons and/or entities directly
or indirectly controlling or controlled by or under direct or indirect
common control with such entity. (h) The "Link," "Link Product" or
"System" is an Internet/Intranet-based system that enables
[MATERIAL HAS BEEN DELETED FROM THIS EXHIBIT PURSUANT TO A
CONFIDENTIAL TREATMENT REQUEST]
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Bankers Bank to provide to "Participating Banks" means to communicate
electronically with Bankers Bank and perform Services. Comprising the Link
is a host system operated by Netzee (the "Host"), Services provided to
Bankers Bank, Participating Banks and, as applicable, their customers
using the Host, and a limited amount of software provided to the Bankers
Bank and/or Participating Banks to receive the Services and communicate
with the Host (the "Client Software"). Except for the Client Software, the
Bankers Bank and Participating Banks are responsible for their own
equipment, software and communications. (i) "Escrowed Software" is the
Client Software and host software proprietary to Netzee operated to
provide the Link (exclusive of third-party equipment, software and
communications and to the extent segregated therefrom).
2. SERVICES. (a) Netzee agrees to provide to Bankers Bank the Services
identified in each Addendum and in this Agreement. (b) Netzee warrants
that it will use its commercially reasonable efforts, skill, and knowledge
and sound and professional principles and practices in accordance with
normally accepted industry standards in the performance of Services. (c)
Other Services may be added as shown in additional future Addenda. (d)
Netzee may add or change Services in normal course of its business,
provided material changes will be documented in a revised Addendum.
Notwithstanding the foregoing, Netzee shall make no change in Services
that will result in loss of features or functions regularly utilized by
Bankers Bank or Participating Banks.
3. SOFTWARE. (a) Netzee grants Bankers Bank, and Bankers Bank accepts, a
non-exclusive, non-transferable (except as authorized herein), license to
install, store, operate and use, and, as necessary to use the System,
provide to Participating Banks, the object code or interpreted code
versions of the Client Software. For this purpose, the Client Software
will automatically be deemed to include any maintenance modifications or
upgrades provided to Bankers Bank in the future. (c) Client Software may
not be removed from Bankers Bank's or, as applicable, Participating Banks'
designated site(s), subject to necessary back-up or recovery, and provided
the Client Software will be removed and returned to Netzee upon
termination of Bankers Bank's license. (d) Bankers Bank and, as
applicable, Participating Banks may create a sufficient number of copies
of the Client Software and related user documentation for non-productive
backup and archival purposes only, including, without limitation, one or
more hot sites. All copies of the Client Software and such documentation
shall be accounted for (by number, location and use) upon Netzee's
request. (e) The Client Software is for the use and benefit of the Bankers
Bank and Participating Banks only in connection with the Services and use
of the System. (f) If the Bankers Bank or Participating Users decide to
engage the services of independent service providers (ISPs), including
facilities managers, "outsourcing" vendors, or (for purposes of use of
such term) service corporations wholly owned by the Bankers Bank,
Participating Banks or their Affiliates, those ISPs may access or operate
the Client Software, or manage or coordinate Services, provided they do so
for the sole benefit of the Bankers Bank or Participating Banks. As a
condition of each ISP's access to the Software or Services, Bankers Bank
shall arrange for such ISP to execute a confidentiality agreement
reasonably acceptable to Netzee in which the ISP agrees to access and use
the Client Software, manage or coordinate the Services, and otherwise
receive and use Confidential Information of Netzee only for purposes of
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assisting the Bankers Bank and/or Participating Banks to receive the
Services. (g) The Bankers Bank and/or Participating Banks may also
authorize suppliers and/or customers to use the Client Software for
purposes of facilitating contractual relationships involving complementary
goods and services.
4. PARTICIPATING BANKS. (a) Bankers Bank may resell the Services and/or
transact business using the Services with Participating Banks, with right
of resale includes the right to sublicense to Participating Banks any
Software necessary to utilize the Services. (b) Netzee's relationship
under this Agreement is solely with Bankers Bank and not with
Participating Banks. Bankers Bank is responsible for all support (except
as provided in the Services), billing and collection of or from
Participating Banks. (c) Bankers Bank shall require Participating Banks to
comply with and acknowledge terms and conditions for use of the Services
consistent with this Agreement. Bankers Bank will defend, indemnify and
hold Netzee harmless from and against any claims resulting from Bankers
Bank's and/or any Participating Bank's use of the Services, except for
claims arising out of Netzee's breach of the terms of this Agreement or
any Addendum, any infringement of intellectual property rights for which
Netzee is responsible, or any negligence or intentional misconduct of
Netzee. (d) Bankers Bank will cooperate to identify and resolve any
security infringements that involve Participating Banks and use of the
System.
5. WEB LINK AND ADVERTISING. (a) As necessary or appropriate for each party
to design, establish and maintain the link and host Bankers Bank's Website
as part of the Services, operate and conduct the Services, describe,
promote or link the parties' respective Websites, and promote the Service
through mutually agreed other advertising, each party grants the other
party a worldwide, non-exclusive right to use and display its Brand Marks,
subject in each instance to such party's prior approval. Presentation of
the Brand Marks shall also be in accordance with conventions specified by
the party owning such Brand Marks. Use of the Brand Marks shall be
confined to the purposes of this Agreement. For purposes of this
Agreement, "Brand Marks" mean trademarks, service marks, trade names,
logos, slogans and advertising (including text, graphic or audiovisual
features of icons, banners, frames, etc. to the extent distinctive to
either party) and, if provided by either party, depiction of characters or
celebrities. (b) Netzee reserves the right to suspend or deactivate
Services as necessary to terminate or investigate illegal or improper
activities, provided Bankers Bank will be notified of such action and the
Services will be suspended or deactivated only to the degree necessary for
such purpose.
6. GENERAL LIMITATIONS. (a) The Software and Services may be used by Bankers
Bank only for Bankers Bank's and, as applicable, Participating Banks'
internal business requirements, as further described in this Agreement.
(b) Bankers Bank and each applicable Participating Bank will be
responsible for the conduct of its business, including use of the Services
in accordance with applicable laws and regulations. Netzee in the normal
course of its business may provide assistance to Bankers Bank and
Participating Banks, but Bankers Bank and each Participating Bank retains
final responsibility for such compliance.
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7. SOURCE CODE ESCROW. Netzee agrees to deposit in escrow, within 15 days
after the commencement date of this Agreement with an escrow agent
approved by Bankers Bank (which approval shall not be unreasonably
withheld), pursuant to an escrow agreement reasonably acceptable to
Bankers Bank, the source code of the Escrowed Software (which will be
updated as provided in the escrow agreement). The escrow agreement will
list third-party software that is integrated or combined with the Escrowed
Software in such a manner that such third-party software is necessary for
the operation or use of the Escrowed Software. Release of the Escrowed
Software shall be permitted only upon the occurrence of one of the
following events:
(a) In the event Netzee files for relief under the federal
Bankruptcy Code, or any action is filed against Netzee under
such Code and such action is not cured within 30 days;
(b) In the event Netzee enters into a general assignment for the
benefit of creditors;
(c) In the event Netzee otherwise substantially ceases doing
business, and its business is not continued by virtue of a
merger or consolidation with, or a sale of all or substantially
all of its assets to, or otherwise by, another corporation or
entity;
(d) In the event (1) Netzee fail to provide support, maintenance,
updates or other Services as required under this Agreement or
any other agreement between Netzee and Bankers Bank (receipt of
such Escrowed Software not to constitute waiver of any other
remedies by Bankers Bank for Netzee's breach pursuant to any
such agreements) or is unwilling or unable to provide on
reasonable terms development or customization needed by the
Bankers Bank, as determined by the Bankers Bank, and (2) Bankers
Bank notifies Netzee of such matter and Netzee does not provide
Bankers Bank a solution within thirty (30) days or a plan for
correction within (15) days which the Bankers Bank, in its sole
discretion, determines to be acceptable; or
(e) In the event there occurs a substantial change of ownership of
Netzee as referenced in Section 9(d) hereof and Bankers Bank
requests but does not receive assurances in a manner reasonably
acceptable to Bankers Bank that Netzee or its successor(s) is
willing and able to continue to meet its obligations under this
Agreement and any Addendum.
Should the Bankers Bank obtain the Escrowed Software pursuant to this
section, the Bankers Bank shall thereafter have the right (in the form of
a nonexclusive, royalty free license) to use and modify it (in object code
and source code form, as applicable) to maintain or restore the Services
and otherwise independently use the Escrowed Software for the benefit of
the Bankers Bank and Participating Users, with full rights to alter,
revise, modify and update the Escrowed Software for such purpose (which
such alterations, revisions, modifications and updates by the Bankers Bank
being owned exclusively by the Bankers Bank), provided it otherwise
adheres to its obligations under this Agreement. At the time the Escrowed
Software is obtained, Bankers Bank may demand, and shall be entitled to
receive, to the extent not included with the Escrowed Software and not
otherwise in Bankers Bank's possession, copies of any existing technical
manuals associated with such Escrowed
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Software; existing maintenance tools (such as, test programs and program
specifications); existing menu and support programs and subroutine
libraries in source and object code form; existing compilation procedures
in human and machine readable form; existing execution procedures in human
and machine readable form; existing end user documentation; and existing
system flow charts, programmers' notes, program flow charts, file layouts,
report layouts, and screen layouts. This Section supersedes the license
made available to Bankers Bank pursuant to Section 1 of the Agreement
between Netzee and the Bankers Bank dated September 3, 1999.
8. DATA. Bankers Bank or, as applicable, Participating Banks shall be
responsible for entering all information and data required for the
Services. Bankers Bank retains all intellectual property and other rights
in and to all Bankers Bank Content. Netzee shall be allowed to use the
Bankers Bank Content for the sole purpose of providing Services under this
Agreement and any Addendum, provided that Netzee and its service partners
may use information as necessary for delivering or customizing the
Services, Netzee may collect and share aggregate data (provided that
personally identifying information is not shared without the user's
permission), and, when users request goods or services provided by
Netzee's retail partners or pursuant to third-party promoters, such retail
partners or promoters are governed by their own procedures with regard to
any information associated with such request.
9. RESTRICTIONS. (a) Except as expressly permitted above, Bankers Bank agrees
not to sublicense, license, rent, sell, loan, give or otherwise distribute
all or any part of the Software or subcontract or resell the Services to
any third party, without Netzee's consent. (b) Bankers Bank agrees not to
reverse engineer, disassemble, decompile, modify, or alter the Software or
any copy thereof, in whole or in part. (c) If either party is merged,
consolidated or sold, or if either party sells or transfers all or
substantially all of its assets relating to the use of the Software, such
party shall have the right to transfer or assign its rights and
obligations under this Agreement to the surviving or buying entity,
provided that (i) the successor in any asset purchase which includes a
transfer of this Agreement shall assume the terms and conditions of this
Agreement in a manner reasonably acceptable to the other party; (ii) if
the transferor is Bankers Bank, the overall scope of this Agreement may
not be substantially altered without Netzee's prior approval; and (iii) if
the transferor is Netzee, and if the transfer is, directly or indirectly,
to a purchaser or affiliated group under circumstances that can reasonably
be expected to significantly alter Netzee's management and direction,
Bankers Bank shall be entitled to request and receive reasonable
assurances in a manner reasonably acceptable to Bankers Bank that Netzee
or its successor(s) is willing and able to continue to meet its
obligations under this Agreement and any Addendum, and Section 7(e) shall
apply if Bankers Bank does not receive such assurance.
10. TERM. (a) The Term of this Agreement and the initial Addendum shall last
for one (1) year from the date of execution of the initial Addendum and
continuing thereafter for so long as Bankers Bank elects to receive
services under the Maintenance Agreement; provided, however, that Bankers
Bank may terminate this Agreement by giving at least
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thirty (30) days' advance notice of termination in the event it is
determined that Netzee cannot meet Bankers Bank's requirements as
identified in this Agreement. (b) Bankers Bank shall receive help desk,
error correction and updates to the Software and Services, as described in
the Maintenance Agreement and this Agreement, during the initial term and
has the option to receive such services pursuant to the Maintenance
Agreement upon expiration of the initial one (1) year term of the
License/Services Schedule. If Bankers Bank declines to receive or renew
maintenance at the end of such initial term or any subsequent maintenance
term, the Agreement will terminate.
11. FEES. (a) Bankers Bank shall pay the fees indicated on each Addendum for
the corresponding Software or Services. Fees for each identified item of
Software will be fully earned and non-refundable when and as that Software
is delivered or put in use. Fees for Services will be fully earned and
non-refundable when and as the Services are performed. Services required
but not described in this Agreement or an Addendum will be charged to
Bankers Bank at Netzee's standard rates. (b) Unless otherwise stated in
the applicable Addendum, all amounts due shall be paid in U.S. Dollars
promptly on receipt of invoice. (c) An Addendum may, as applicable,
require payment of reasonable out-of-pocket expenses incurred by Netzee,
subject to Bankers Bank's prior written approval of same. Communications,
equipment usage, and similar expenses set forth in such Addendum, if
applicable, will be based on standard rates provided generally by Netzee.
(d) Any payment not received within thirty (30) days of the date due shall
bear interest from the date due at the rate of one (1%) per month
(prorated for partial periods) or the maximum rate permitted by applicable
law, whichever is less. (e) Bankers Bank shall be responsible for sales or
use taxes or similar obligations imposed by any government authority with
respect to the Software or Services (except Netzee retains responsibility
for franchise taxes and federal and state taxes on its net income or net
worth).
12. WARRANTY AND INDEMNIFICATION. (a) All Software will recognize dates with a
four-digit field and in a manner that calculates the year 2000 as a leap
year. (b) Support may provide response measures that are in addition to
warranties. Warranties on third-party software, services, equipment, etc.
are limited to third-party obligations. (c) Netzee does not warrant that
the Software or Services shall be uninterrupted or error free or that it
shall meet Bankers Bank's needs. (d) Netzee will provide reasonable
security in accordance with banking industry standards. Bankers Bank or
Participating Banks, as applicable, are otherwise solely responsible for
the accuracy and integrity of its own data, reports, documentation and
security. Netzee will provide upon request a description of security
methods and procedures employed by Netzee. Bankers Bank or Participating
Banks, as applicable, will employ additional procedures as appropriate to
secure the integrity of its data. Bankers Bank understands that certain
risks are inherent in the transmission of information over the Internet.
(e) The exclusive remedy of Bankers Bank, and Netzee's sole obligation, in
the event of any warranty claim or any other contract deficiency shall be
for Netzee to repair or replace the defect or, if such repair or
replacement is not provided or does not correct the defective item, to
refund an equitable part of Bankers Bank's payments for the defective
item. (f) Netzee will indemnify, defend and hold the Bankers Bank Entities
harmless from any damages or liabilities resulting from third-party claims
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that the Software or Services or their use (exclusive of the Bankers Bank
Content, which is Bankers Bank's responsibility) infringe U.S. patents,
copyrights or similar intangible rights or misappropriate the trade
secrets or confidential information of third parties, provided that
Bankers Bank will promptly notify Netzee of the matter, cooperate with
Netzee as requested, and permit Netzee to control the investigation,
defense and disposition of the same. (g) EXCEPT AS EXPRESSLY PROVIDED IN
THIS SECTION, NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS
GIVEN BY NETZEE WITH RESPECT TO SOFTWARE, SERVICES OR ANY OTHER MATTER,
INCLUDING, WITHOUT LIMITATION (AND NETZEE SPECIFICALLY DISCLAIMS) ALL
WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(h) Bankers Bank is responsible for entering into agreements with
Participating Banks appropriate to give effect to the restrictions and
limitations set forth in this Agreement as contemplated to apply to such
Participating Banks.
13. LIMITATION OF LIABILITY. (a) EXCEPT FOR ANY OBLIGATIONS OF INDEMNITY UNDER
THIS AGREEMENT OR ANY ADDENDUM, IN NO EVENT SHALL NETZEE BE LIABLE TO
BANKERS BANK, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL
THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE)
FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED
DATA, REPORTS, DOCUMENTATION OR SECURITY, OR SIMILAR ECONOMIC LOSS, OR FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES,
ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF
THIS AGREEMENT, OR FOR ANY CLAIM MADE AGAINST BANKERS BANK BY ANY OTHER
PARTY, EVEN IF NETZEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
(b) EXCEPT FOR ANY OBLIGATIONS OF INDEMNITY UNDER THIS AGREEMENT OR ANY
ADDENDUM, IN NO EVENT SHALL NETZEE'S LIABILITY UNDER ANY CLAIM MADE BY
BANKERS BANK EXCEED THE TOTAL AMOUNT OF FEES PAID BY BANKERS BANK TO
NETZEE WITHIN ONE (1) YEAR PRIOR TO THE DATE THE CLAIM AROSE (OR, IF LESS
THAN ONE (1) YEAR HAS TRANSPIRED SINCE THE DATE OF COMMENCEMENT OF THE
SERVICES, THE ANNUALIZED AMOUNT OF BASE MONTHLY FEES PAID THROUGH SUCH
DATE) RELATING TO THE AFFECTED SOFTWARE OR SERVICES. (c) NO ACTION,
REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
MAY BE BROUGHT BY BANKERS BANK MORE THAN ONE (1) YEAR AFTER THE EVENT
GIVING RISE TO SUCH CAUSE OF ACTION.
14. CONFIDENTIALITY; OWNERSHIP OF WORK PRODUCT. (a) Each of the parties hereto
agrees to protect and maintain as secret all information designated as
confidential by the other party ("Confidential Information") by (i)
treating the Confidential Information of the other party with at least the
same care and protection accorded its own Confidential Information; (ii)
using great care in the assignment of personnel who receive Confidential
Information of the
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other party, and instructing such personnel to take all reasonable
precautions to prevent unauthorized use or disclosure thereof; and (iii)
not using or disclosing such Confidential Information except as necessary
to fulfill the terms of this Agreement or as otherwise authorized by the
disclosing party. However, neither party shall have an obligation of
confidentiality with regard to any information that: (A) is known to such
party prior to disclosure; (B) is or becomes publicly available other than
as a result of a breach of this Agreement; or (C) is disclosed to such
party by a third party not subject to an obligation of confidentiality.
(b) For purposes of this Agreement, the parties acknowledge that
information collected from Bankers Bank, Participating Banks and their
accounts is (as between the parties hereto), and is hereby designated as,
Confidential Information of Bankers Bank. Netzee and third-party service
providers may collect and use such information only if Bankers Bank agrees
in writing and identifying information is first screened or filtered, or
as otherwise required to perform the Services. (c) If advertising or
content supplied by either party pertaining to its products, services or
business embodies any work of authorship protected under U.S. or foreign
copyright laws or database interest protected under international laws or
conventions, the party supplying such material shall be responsible for
securing rights and licenses necessary for the use and exercise of such
interests incident to the Services. (d) All systems, programs, operating
instructions and other documentation, including all rights in patentable
inventions, trade secrets and know how, database interests and copyrights
associated therewith, which are conceived, prepared, developed or
delivered by Netzee (whether alone or with others, and whether independent
of or in connection with the conduct of its performance hereunder), shall
be and remain the sole property of Netzee. (e) All Confidential
Information that are trade secrets under law shall be protected in
accordance with this Section 14 for as long as such Confidential
Information remains a trade secret. All Confidential Information that is
not a trade secret shall be protected under this Agreement for the term of
this Agreement and three (3) years thereafter.
15. TERMINATION. (a) Either party, at its option, may terminate this Agreement
(and thereupon terminate Bankers Bank's license to the Client Software and
Bankers Bank's right to receive any remaining Services) if the other party
commits a substantial breach of this Agreement and fails to cure the
breach within thirty (30) days (or ten business (10) days if for
non-payment) after notice of such breach is given, provided that, so long
as Bankers Bank is current in all payment obligations within and after the
cure period, the Services may be continued for an additional period of up
to ninety (90) days as necessary for Bankers Bank to effect a transition
in such Services. For this purpose, the Bankers Bank will not be deemed in
substantial breach of this Agreement (and therefore Netzee will not be
entitled to terminate this Agreement for reason of such a breach, but
without prejudice to any other rights Netzee may have at law or equity) if
base monthly maintenance fees, as well as any other undisputed
obligations, are paid in full to Netzee, and obligations (other than
monthly maintenance fees) to the extent disputed are escrowed on terms
reasonably acceptable to Netzee. Termination of this Agreement shall
simultaneously result in termination of Addenda then in effect. (b) Upon
termination of this Agreement, subject to the foregoing possible
extension, regardless of the reason, Bankers Bank shall immediately cease
use of the Client Software, remove the Client Software from Bankers Bank's
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computers, and follow Netzee's instructions for the return or destruction
of all remaining copies of the Software and related documentation. Bankers
Bank agrees to certify its compliance with the foregoing requirement upon
Netzee's request.
16. FORCE MAJEURE. Neither party shall be responsible for failures or
interruptions of communications facilities or equipment of third parties,
labor strikes or slowdowns, shortages of resources or materials, natural
disasters, world events, delay or disruption of shipment or delivery,
trespass or interference of third parties, or similar events or
circumstances outside its reasonable control, whether or not otherwise
enumerated.
17. ARBITRATION. (a) In the event any claim, controversy or dispute of any
kind whatsoever (a "Dispute") shall arise between the parties (including
their subsidiaries and affiliates) in connection with, relating to or
arising out of this Agreement (including any Addenda) or any other
agreement or transaction between the parties, including (without
limitation) the interpretation, performance, non-performance or
termination hereof or thereof, the parties, at either party's request,
shall attempt to settle such Dispute in the first instance through mutual
discussion. Such request shall be made by written notice referencing this
provision. If such Dispute has not been resolved through mutual discussion
within thirty (30) days following such notice, the parties shall endeavor
to settle the Dispute by non-binding mediation under the Mediation Rules
of the American Arbitration Association prior to any recourse to
arbitration pursuant to this Section 17. (b) If such Dispute has not been
resolved within thirty (30) days after submission to mediation pursuant to
Section 15(a) above (the "Mediation Period"), such Dispute shall be
settled by an arbitral tribunal (the "Tribunal") under the Commercial
Arbitration Rules of the American Arbitration Association (the
"Arbitration Rules"). Each party shall appoint an arbitrator within thirty
(30) days after the expiration of the Mediation Period, which arbitrators
shall then jointly appoint a third arbitrator within thirty (30) days
after the appointment of the first two (2) arbitrators, to act as
president of the Tribunal. Arbitrators not so appointed shall be appointed
pursuant to the Arbitration Rules. The costs of the arbitration shall be
borne by the parties as determined by the Tribunal. The award rendered in
any arbitration commenced hereunder shall be final and binding and
judgment thereon may be entered in any court having jurisdiction for its
enforcement. Neither party shall appeal to any court from the decision of
the Tribunal, or have any right to commence or maintain any suit or legal
proceeding concerning a Dispute until such Dispute has been determined in
accordance with the arbitration procedure provided for herein, and then
only for enforcement of the award rendered in the arbitration. (c)
Notwithstanding the foregoing, nothing in this Section 17 shall be deemed
as preventing either party from seeking injunctive relief from the courts
pursuant to Section 17(d) below. All mediation and arbitration proceedings
pursuant to this Agreement shall take place in Atlanta, Georgia. The
assertion, prosecution and settlement of Disputes shall be maintained in
confidence by the parties, except as required for either party to comply
with applicable laws and regulations. (d) Each party acknowledges that
violation of Sections 3, 5, 8 or 13 will cause irreparable harm to the
other not adequately compensable by monetary damages. In addition to other
relief, each party agrees that injunctive relief shall be available to the
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other in the event of such violations without the necessity of posting
bond to prevent any actual or threatened violation of such provisions.
18. MISCELLANEOUS. (a) Netzee may refer to Bankers Bank in advertising or
publicity, provided that, except as necessary to meet legal obligations or
provide the Services, it shall first consult Bankers Bank and obtain
Bankers Bank's prior written approval. (b) Except as expressly stated
herein, the terms and conditions of this Agreement and any Addendum may
not be amended, waived or modified, except in a writing signed by the
party to be charged therewith. (c) No failure or delay of either party to
exercise any rights or remedies under this Agreement or any Addendum shall
operate as a waiver thereof, nor shall any single or partial exercise of
any rights or remedies preclude any further or other exercise of the same
or any other rights or remedies, nor shall any waiver of any rights or
remedies with respect to any circumstances be construed as a waiver
thereof with respect to any other circumstances. (d) If any provisions of
this Agreement or any Addendum is held invalid or unenforceable in any
circumstances by a court of competent jurisdiction, the remainder of this
Agreement and such Addendum, and the application of such provisions in any
other circumstances, and in any other jurisdiction, shall not be affected
thereby. (e) The terms and conditions of this Agreement, as applied to and
incorporated in each separate Addendum, shall be construed to be a
separate contract for each separate Addendum. (f) Invoices, purchase
orders, acknowledgments, confirmations and other communications submitted
by Bankers Bank shall not be considered part of any Addendum or this
Agreement unless signed and approved by an authorized representative of
Netzee clearly indicating Addendum in which it is incorporated. In the
event of any conflict between this Agreement and an Addendum, the terms of
this Agreement shall control unless the conflict is expressly noted in the
applicable Addendum and Addendum provides to the contrary. (g) All notices
and other communications under this Agreement or Addendum shall be in
writing and shall be deemed to have been given upon actual delivery by
reputable overnight courier to the address from which it sends or receives
invoices or at such other address as such party may indicate in writing,
except that invoices shall be sent to Bankers Bank in accordance with
standard procedures. (h) This Agreement and each Addendum shall be
governed by and construed and enforced in accordance with the laws of the
State of Georgia, excluding its principles of conflicts of law. (i) This
Agreement and each Addendum may be executed in one or more counterparts.
(j) Netzee shall perform this Agreement solely as an independent
contractor, and not as any Bankers Bank Entity's partner, agent, or
employee. Netzee has no authority to make any statement, representation or
commitment of any kind or to take any action binding upon any Bankers Bank
Entity, without Bankers Bank's prior written authorization. (k) Subject to
the other provisions of this Agreement, each party during the term of this
Agreement shall fully comply, and cause its subcontractors, employees,
agents, and representatives fully to comply, with all applicable laws,
governmental regulations, rules, requirements, ordinances and other
requirements of local and state authorities and the Federal government,
including, without limitation, all applicable laws and regulations
regulating financial institutions.
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IN WITNESS WHEREOF, the undersigned duly authorized representatives of the
parties hereto have made and entered in this Agreement as of the date first
above written.
NETZEE, INC. THE BANKERS BANK, a Georgia
banking corporation
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxxxx
------------------------ --------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxx Xxxxxxx
------------------------ --------------------------
Title: SEVP & CFO Title: SVP & CFO
------------------------ --------------------------
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NETZEE, INC.
LICENSE/SERVICES SCHEDULE TO MASTER AGREEMENT
Netzee has developed an Internet/Intranet based banking product (collectively
the "Link," "Link Product" or "System") that enables THE BANKERS BANK ("Bankers
Bank"), a Georgia banking corporation, to provide to Correspondent Banking
Institutions which are Bankers Bank's customers - sometimes referred to as
"Participating Banks" - with means to communicate electronically with Bankers
Bank and perform certain electronic banking transactions. Comprising the Link
is a host system operated by Netzee (the "Host"), Services provided to Bankers
Bank, Participating Banks and, as applicable, their customers using the Host,
and a limited amount of software provided to the Bankers Bank and/or
Participating Banks to receive the Services and communicate with the Host (the
"Client Software"). Except for the Client Software, the Bankers Bank and
Participating Banks are responsible for their own equipment, software and
communications.
The Services to be provided by Netzee to Bankers Bank comprising the Link shall
apply to the __ Participating Banks identified at execution of this Agreement.
Such Participating Banks may change or increase to include other members of
Bankers Bank at Bankers Bank's election, provided Netzee will be so notified of
the change.
The Services are described in EXHIBIT A.
Bankers Bank will provide the information and perform the activities described
in EXHIBIT B.
Bankers Bank agrees to pay fees as provided in EXHIBIT C.
THIS LICENSE/SERVICES SCHEDULE IS GOVERNED BY, AND SHALL BE SUBJECT TO, THE
TERMS AND CONDITIONS OF THE MASTER AGREEMENT BETWEEN NETZEE AND BANKERS BANK,
INCLUDING THE LIMITED WARRANTY AND DISCLAIMER AND LIMITATIONS OF LIABILITY
PROVIDED THEREIN. SUCH TERMS AND CONDITIONS ARE HEREBY AFFIRMED BY BOTH PARTIES
AND INCORPORATED BY REFERENCE IN THIS LICENSE/SERVICES SCHEDULE.
EFFECTIVE DATE OF THIS ADDENDUM: MARCH 1, 2000
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IN WITNESS WHEREOF, the undersigned duly authorized representatives of the
parties hereto have made and entered in this Agreement as of the date above
written.
NETZEE, INC. THE BANKERS BANK, a Georgia
banking corporation
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxxxx
------------------------ --------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxx Xxxxxxx
------------------------ --------------------------
Title: SEVP & CFO Title: SVP & CFO
------------------------ --------------------------
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EXHIBIT A TO LICENSE/SERVICES SCHEDULE
Services
As the Services to be delivered upon execution of this Agreement and for a Term
of one (1) year, Netzee shall, as applicable, develop, implement, test, operate
and maintain, and support computer systems, software and interfaces included in
the System, and Netzee will provide the Services, as well as provide assistance
in training Bankers Bank personnel in the use of the Services.
Maintenance and support provided by Netzee during the initial Term of this
Agreement shall include (1) standard maintenance upgrades and modifications
offered by Netzee to its customers generally, and for such purpose Netzee will
use commercially reasonable efforts to make and include (without limitation) as
such modifications changes and upgrades necessary to comply with generally
applicable industry and regulatory requirements of which it is notified, (2)
5x12 call-in support between hours of 6:30 a.m. and 6:30 p.m. Eastern Time
Monday through Friday, (3) in the event of material discrepancies between the
Services as provided and the specifications for such Services (which shall be
furnished in reasonably acceptable form), reasonable effort (in relation to
importance, impact, and scheduled development plans) to correct those
discrepancies, and (4) availability of basic Services with at least 99% uptime
between 4:00 a.m Monday and 7:00 p.m. Friday and between 8:00 a.m. Saturday and
2:00 p.m. Saturday Eastern Time, exclusive of outages caused by off-peak
prescheduled maintenance or causes beyond Netzee's reasonable control
(including third-party equipment or communications).
The Link Product allows Bankers Bank to use the following applications to
receive and deliver specific information to Participating Banks and their
accounts. Bankers Bank has the right to delete an application that does not
apply to its institution. The applications consist of the following:
ACCOUNT DELIVERY
FUNDS TRANSFER
Bank to Bank Transfer
Internal Transfer
Local Clearing
Recurring Wire Table
OFAC
Travelers
INTERNATIONAL WIRE
Exchange Rates
Foreign Drafts
Recurring Table
ACH
ACH Received
ACH Origination
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ACH Return/Notice of Change
Recurring Table
EFTPS
ENR
INVESTMENTS
Increase/Decrease Fed Funds
Investments Research Requests
Corporate Sweep Messages
Securities Purchased and Sold
Stock Order or Sale
Pledge & Repo/Resell Maintenance
Treasury Fund Factor
Messages
Fed Fund Rates
T-Xxxx Rates
Wallstreet Report
Investment Broadcast Reports
Bond Portfolio Reports
Transaction Advices
Safekeeping Income Report
FILE DELIVERY
MICR Delivery
Open Case
Case Inquiry
Cash Letter Worksheet
Reports
Check Adjustment Advice
Cash Letter Availability
Over Night Fed Fund Report
FRB SERVICES
Coin/Currency Order & Shipment
Coin/Currency Order & Shipment Notification
Large Dollar Return Item
Recurring Savings Bond Table
Series EE and I
T T & L Report
FR2900 Import
NOTIFICATIONS
FR2900 Confirmation
FED ACH Advice
Fed Funds Sold & Purchased
Weekly Fed Fund Re-Cap
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Incoming & Outgoing Wire Advices
Internal Transfer Advice
Miscellaneous Entry Advice
Savings Bond Order Advice
T T & L Advice
STATEMENT DELIVERY
Account Analysis
FRB Statement
Daily and Weekly Account Statements
FRB Charges
EVENT NOTIFICATION
DETAILED ADMINISTRATION CONTROLS
ONLINE HELP
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EXHIBIT B
Bankers Bank Responsibilities
In addition to the requirements of Bankers Bank set forth in the Agreement,
Bankers Bank shall provide the following:
Bankers Bank shall be responsible for providing to Netzee certain Bankers Bank
Content mutually agreed between Bankers Bank and Netzee within 60 days of the
Effective Date.
Without assuming responsibility for the creation, testing, implementation, and
support of the System, Bankers Bank shall provide such cooperation and
approvals as may be reasonably requested and shall make its technical
personnel, facilities and computer and software systems reasonably available
during normal business hours in a timely manner for such purposes.
Bankers Bank shall obtain and maintain at its expense a communications link
conforming to the specifications provided in writing by Netzee from time to
time to connect Bankers Bank's systems with the System.
Bankers Bank shall enter a binding agreement with each Participating Bank
electing to utilize any of the Services and shall provide Netzee upon request,
copies of such agreements. In no event shall Bankers Bank make representations
and warranties concerning the Services exceeding the scope of this Agreement or
otherwise not authorized in writing by Netzee.
Bankers Bank shall develop and provide adequate written disclosure material to
the Participating Banks regarding its policies and all laws and regulations
which may apply to the use of the Services. Upon request of Netzee, Bankers
Bank shall provide Netzee with a copy of all such disclosure material.
In addition, Bankers Bank will:
- Provide a dedicated Bankers Bank project leader
- Provide equipment and telecommunications requirements to meet the
specifications set forth by Netzee
- Schedule initial meeting with Netzee and Bankers Bank staff to gather
required product information
- Provide required and mutually agreed Bankers Bank information including
camera ready art, URL destinations, product name product and color scheme
within 10 days of initial one day meeting
- Provide Netzee with required sample files for delivery and interface
- Schedule employees for user testing for 2 weeks and actively test product
functionality for a 2 week testing period
Bankers Bank's responsibilities as provided in this Exhibit will also apply,
following expiration of this License/Services Schedule, in relation to any
maintenance that Netzee continues to supply.
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EXHIBIT C
Fees and Expenses
For the Services, as outlined on Exhibit A, during the initial one-year term of
the Agreement, Bankers Bank will pay Netzee the one-time sum of $[XXX]
multiplied by [XXX], which is the total initial authorized number of
Participating Banks shown on the first page of the License/Services Schedule.
Such fees shall not be applicable to additional Participating Banks that are
subsequently added. Such fees shall be fully earned and non-refundable for such
work and services provided in the initial one-year term of the Agreement.
Out-of-pocket expenses incurred by Netzee in the course of providing Services
to Bankers Bank and Participating Banks are not reimbursable unless separately
agreed.
***MATERIAL DENOTED BY [XXX] HAS BEEN OMITTED
PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.***
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