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EXHIBIT 10.27
FORM OF
NFRONT INTERNET BANKING SERVICES AGREEMENT
THIS NFRONT INTERNET BANKING SERVICES AGREEMENT ("Agreement") is made
effective this ____ day of ____, 1999 ("Effective Date") by and between NFRONT,
INC. ("nFront"), a Georgia corporation having its primary offices at 000
Xxxxxxxxx Xxxxx XX, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000-0000, facsimile number
(000) 000-0000 and _______________________________________________________
("Bank"), a _____________________________________________________ corporation
having its primary offices at __________________________________________,
facsimile number ____________________________.
nFront is in the business of providing Internet-based banking services to banks
and other financial institutions. Bank desires to offer to its Customer Base
(defined below) and potential customers Internet-based banking capabilities.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. In addition to all other terms defined herein, the
following terms shall have the following meanings:
(a) "Agreement" means this agreement, together with all schedules and
Exhibits attached hereto or hereafter attached by mutual consent of the
parties (all of which are herein incorporated by reference).
(b) "Customer Base" means those customers of Bank as of the Effective
Date and those who become customers of Bank during the Term.
(c) "Documentation" means that portion of the System that provides
installation and operating instructions for use of the System by Bank.
(d) "End-User" means a Bank customer who uses the System.
(e) "Fees" means all fees payable by Bank to nFront under this
Agreement including, but not limited to, all the fees listed in EXHIBIT
B, Termination Fees and Xxxx Payment Fees.
(f) "File Transmission Computer" means Bank's computer equipment,
software, secure communications software and secure communications
lines that meet the specifications for use with the System.
(g) "nFront's Secure Server" means the server-grade computers owned and
maintained by nFront on which the System and Bank's Internet Branch
resides.
(h) "Services" mean all services provided to Bank by nFront under this
Agreement.
(i) "Software" means that portion of the System that is comprised of
nFront's computer programs installed on nFront's Secure Server.
(j) "System" shall mean nFront's Software and nFront's proprietary
Internet banking system as more fully described in EXHIBIT C attached
hereto, together with all System Modifications made available to Bank
under this Agreement.
(k) "Term" means the Initial Term and all Renewal Terms.
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(l) "Bank Data Center" shall mean the Bank's internal data processing
department, the Bank's core processor or the Bank's service bureau that
provides nFront with the electronic customer files that nFront will
process.
2. SCOPE OF SERVICES.
2.1 Authorized Services. During the Term, Bank is authorized to use the
capabilities of the System as specified in EXHIBIT A ("Authorized Services").
2.1.1 nFront's Obligations. During the Term and for the Authorized
Services, nFront shall provide Bank with the following:
(a) design and installation of nBranch - an Internet branch of
Bank on the World Wide Web of the Internet ("Internet Branch")
in accordance with the specifications set forth in EXHIBIT D;
(b) host and maintain the Internet Branch on nFront's Secure
Server;
(c) register an Internet domain name on behalf of the Bank. Bank
will be invoiced by nFront annually at the current up-front
and renewal list prices offered by the third party that
provides the domain registration service;
(d) register a web site security key on behalf of the Bank. Bank
will be invoiced by nFront annually at the current up-front
and renewal list prices offered by the third party that
provides the security key registration service;
(e) provide interactive banking service capabilities to Bank
through the use of the System; (f) provide specifications for
File Transmission Computer as set forth in EXHIBIT E or as
modified by nFront from time to time ("Technical
Specifications");
(g) train Bank's personnel in the daily operation and update
procedures for the System as set forth in EXHIBIT F;
(h) through a third party processing agent, provide the xxxx
payment services listed in EXHIBIT G and on the terms set
forth therein ("Xxxx Payment Services").
2.1.2 Software Access License. During the Term of this Agreement and
for the Authorized Services and subject to the limitations set forth herein,
nFront grants to Bank a limited, non-exclusive, and non-assignable (except as
expressly set forth below) license to access the Software located on nFront's
Secure Server for the purpose of receiving the Services and using the System.
nFront reserves all rights not expressly granted herein. Without limiting the
foregoing, Bank has no right to possess the Software or any copies thereof in
any form.
2.1.3 nFront Xxxx License. During the Term of this Agreement and
subject to the limitations set forth herein, nFront grants to Bank a limited,
non-exclusive, and non-assignable license to use nFront's service xxxx and
trademark "NFRONT" solely for the purpose of describing the Services and the
System to the Customer Base and for no other purpose.
2.1.4 Consulting Services. Bank may request that nFront perform
consulting services in addition to the Services set forth herein ("Consulting
Services"). Consulting Services, if any, are described in EXHIBIT H. When the
parties have agreed to the scope of Consulting Services as set forth in EXHIBIT
H, such Consulting Services shall be considered part of the "Services" provided
under this Agreement. All Consulting Services shall be performed pursuant to the
terms of this Agreement and EXHIBIT H.
2.2 Bank's Obligations. As promptly as practicable following the execution
of this Agreement and at its sole cost and expense, Bank shall obtain or
otherwise make available to nFront the File Transmission Computer and other
recommended equipment meeting the Technical Specifications. During the Term,
Bank at its sole cost and expense, shall:
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(a) employ technically suitable employees to support the System
and provide End User support;
(b) make available the appropriate Bank personnel to attend such
training programs and other refresher and upgrade training as
nFront may, at reasonable intervals, recommend or require (at
either the executive offices of Bank or nFront, as designated
by nFront);
(c) adhere, and cause its employees and agents to adhere, to the
commercially reasonable security procedures established by
nFront from time to time;
(d) perform periodic file updates as provided in EXHIBIT F
attached hereto;
(e) not offer, directly or indirectly, any Internet banking
service similar to the System as described in EXHIBIT C; and
(f) set up and maintain test accounts throughout the Term of the
Agreement. Test accounts should consist of a DDA and savings
account tied to the same social security number or tax
identification number with balances of at least $10.
2.3 Relationship Between nFront and Bank. This Agreement does not in any
way create the relationship of principal and agent, or any similar relationship
between nFront and Bank, including, but not limited to that of joint ventures,
partners, employees or associates. Neither party is granted any right or
authority to assume or create any obligation or responsibility for or on behalf
of the other party or to otherwise bind the other party other than as may be
expressly authorized in this Agreement.
3. FEES AND PAYMENT TERMS.
3.1 Fees and Payment Terms. Bank agrees to pay the Fees for the Services
set forth herein and in the EXHIBITS. Bank also agrees to pay or reimburse
nFront for any reasonable travel-related and other out-of-pocket expenses
incurred by nFront in the performance of Services. nFront will invoice Bank for
the Implementation Fees set forth in EXHIBIT B on the Effective Date and payment
is due within thirty (30) days from receipt of the invoice. All monthly Fees,
Consulting Fees and all other Fees and expenses are due and payable within
thirty (30) days of receipt of the invoice. nFront will assess a late payment
Fee equal to the lesser of one and one-half percent (1-1/2%) of the unpaid
amount or the highest interest rate allowed by applicable law for each
succeeding thirty (30) day period or portion thereof in which Fees or expenses
remain unpaid.
3.2 System Changes and Fee Changes.
(a) nFront shall have the right to modify the System including,
without limitation, to: (i) make changes in method of access
to or delivery of the System including, without limitation,
file interface procedures ("File Interface Changes"), or (ii)
add improvements to the System which are provided to Bank at
no additional cost ("System Enhancements"), or (iii) provide
additional functionality that is offered to Bank for such Fees
as nFront may deem appropriate ("System Options")
(collectively "System Modifications").
(b) Bank may, at its option, elect to pay the additional Fees for
System Options and thereafter have access to such System
Options.
(c) nFront will provide Bank and Bank Data Center sixty (60) days
written notice of any File Interface Changes.
(d) nFront reserves the right to increase Fees and will provide
forty-five (45) days written notice to Bank prior to any
increase in the Fees. nFront may increase the monthly System
Maintenance Fees and the monthly per Customer Fees (described
in EXHIBIT B) only after the first anniversary of the
Effective Date and no more than twelve percent (12%) in any 12
month period thereafter. The Fees described in the previous
sentence do not include any telecommunication and/or Internet
fees, xxxx payment Fees or per transaction Fees. Within ten
(10) days of receipt of notice from nFront of a Fee change,
Bank may, at its option, terminate this Agreement as set forth
in Section 6 below.
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3.3 Taxes and Other Fees. Bank shall pay all sales, use, service,
occupation, personal property, value-added and excise taxes and any other Fees,
assessments or taxes which may be assessed or levied by any taxing authority
against Bank's use of the System or receipt of the Services, excluding any taxes
based on nFront's income.
3.4 Service Level Credits. If nFront fails to provide the Services and
System as set forth in EXHIBIT I ("System Service Levels"), then nFront will
apply the credits against the Fees as set forth in EXHIBIT I.
4. WARRANTIES.
4.1 System Warranty. nFront represents and warrants to Bank that, during
the Term, the System (i) will perform in material conformance with the
functionality listed in EXHIBIT C, (ii) is Year 2000 Compliant (as defined
below), and (iii) as developed and implemented by nFront, is free from viruses
or other damaging or malicious code. "Year 2000 Compliant" means that the nFront
Software will: (i) report and display all dates, including dates occurring
before and after the year 2000, with a four-digit date; and (ii) handle all leap
years, including but not limited to the Year 2000 leap year, correctly;
provided, however, that nFront shall not be responsible or liable for any date
errors caused or contributed to by any third party software, operating system,
or hardware. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 4, THE SYSTEM AND
ALL SERVICES ARE PROVIDED BY NFRONT "AS-IS." NFRONT SPECIFICALLY DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE AS
TO THE SYSTEM OR SERVICES PROVIDED UNDER THIS AGREEMENT. Without limiting the
foregoing, nFront does not warrant that the use of the System, the nFront
Software or nFront's computer servers will be uninterrupted or error free.
4.2 Security. nFront has made available to Bank a description of its
methods and procedures to safeguard the System (i.e. SAS70 Report and third
party Intrusion Test), and, as part of nFront's Services, will provide Bank and
Bank Data Center with procedures which Bank is obligated to employ to help
secure the integrity of the System and Bank's data. nFront agrees to notify Bank
of any security breach of any End User's account on the System by 5:00 pm (EST)
of the business day following discovery. Bank understands and acknowledges that
certain risks are inherent in the transmission of information over the Internet.
Bank chooses to use the security measures provided by nFront even though other
security procedures are available. nFront warrants to Bank that, during the
Term, nFront will employ commercially reasonable System security measures.
Except as expressly provided in this Section, nFront makes no representation,
warranty, covenant or agreement that its security measures will be effective and
neither nFront nor its successors or assigns shall have any liability for the
breach of its security measures, or the integrity of the System or nFront's
computer servers, unless caused by the willful misconduct of nFront or its
employees.
5. CONFIDENTIALITY AND NON-DISCLOSURE.
5.1 In the performance of this Agreement, either party may disclose to the
other certain Proprietary Information. For the purposes of this Agreement, (i)
"Proprietary Information" means Trade Secrets and Confidential Information; (ii)
"Trade Secrets" means trade secrets as defined under Georgia law; and (iii)
"Confidential Information" means information that is of value to its owner and
is treated as confidential other than Trade Secrets. Proprietary Information
includes, without limitation, all information regarding End Users and their
accounts, all financial information, the Software, Documentation, business
plans, customer lists, procedures, formulas, discoveries, inventions,
improvements, innovations, concepts and ideas. The receiving party agrees to
hold the Proprietary
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Information disclosed by the other party in strictest confidence and not to,
directly or indirectly, copy, use, reproduce, distribute, manufacture,
duplicate, reveal, report, publish, disclose, cause to be disclosed, or
otherwise transfer the Proprietary Information for any purpose whatsoever other
than as expressly provided by this Agreement.
5.2 Both parties acknowledge and agree that the Proprietary Information
shall remain the sole and exclusive property of the disclosing party or a third
party providing such information to the disclosing party. The disclosure of the
Proprietary Information does not confer upon the receiving party any license,
interest, or rights of any kind in or to the Proprietary Information, except as
expressly provided under this Agreement. Subject to the terms set forth herein,
the receiving party shall protect the Proprietary Information of the disclosing
party with the same degree of protection and care the receiving party uses to
protect its own Proprietary Information, but in no event less than reasonable
care. With regard to Trade Secrets, the obligations in this Section shall
continue for so long as such information constitutes a Trade Secret. With regard
to Confidential Information, the obligations in this Section shall continue for
the longer of (i) the duration dictated under governing law or (ii) the term of
this Agreement and for a period of five (5) years thereafter.
5.3 Nothing in this Section 5 shall prohibit or limit the receiving party's
use of information if (i) at the time of disclosure hereunder such information
is generally available to the public; (ii) after disclosure hereunder such
information becomes generally available to the public, except through breach of
this Agreement by the receiving party; (iii) the receiving party can demonstrate
such information was in its possession prior to the time of disclosure by the
disclosing party; (iv) the information becomes available to the receiving party
from a third party which is not legally prohibited from disclosing such
information; (v) the receiving party can demonstrate the information was
developed by or for it independently without the use of such information; or
(vi) if disclosure is required under applicable law or regulation.
5.4 Neither party shall disclose the terms of this Agreement except (i) as
required by applicable law or regulation, (ii) to its employees and agents with
a need to know such terms, or (iii) in connection with a potential merger or
sale of all or substantially all of its assets; provided that the receiving
party agrees in writing to be bound by the restrictions of this Agreement.
6. TERM AND TERMINATION.
6.1 Term. This Agreement shall commence as of the Effective Date and shall
remain in effect (unless sooner terminated pursuant to Section 6.2) for five (5)
years thereafter (the "Initial Term"). The Agreement shall thereafter
automatically renew without interruption for successive two-year periods (each a
"Renewal Term"), unless either party (at its sole option, for any reason or for
no reason) gives written notice of intent not to renew the Agreement at least
sixty (60) days before the beginning of any Renewal Term.
6.2 Right to Terminate. Notwithstanding any other provision hereof, this
Agreement may be terminated as follows:
(a) by mutual agreement of the parties;
(b) by either party at any time if the other party has materially
breached the Agreement and, if the breach is curable, the
breaching party has failed to cure such breach (i) within
fifteen (15) days after written notice thereof in the case of
failure to pay amounts due and owing, or (ii) within thirty
(30) days in case of all other curable breaches;
(c) in the event either party materially breaches any of the
provisions hereof, and such breach is not curable, this
Agreement shall be immediately terminable by the non-breaching
party upon written notice to other party. Without limiting the
foregoing, any violation of Section 5 hereof or any use of the
System in a manner inconsistent with the terms of this
Agreement, shall
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constitute a non-curable breach.
(d) immediately by nFront in the event that the Bank becomes
insolvent, files or is forced to file any petition in
bankruptcy, or makes an assignment for the benefit of its
creditors;
(e) immediately by Bank if nFront files bankruptcy under Chapter 7
of the U.S. Bankruptcy Code;
(f) by Bank during the Initial Term upon ninety (90) days written
notice to nFront ("Bank Termination Notice"); provided,
however, that Bank shall pay to nFront the applicable
Termination Fees in an amount equal to:
(i) the greater of: (A) the average monthly Fees paid by Bank
during the four full calendar months immediately preceding
nFront's receipt of the Bank Termination Notice, or (B) the
average monthly Fees paid by Bank during the twelve month
period immediately preceding the actual date of termination
multiplied by
(ii) the number of whole and/or partial months remaining in
the Initial Term following the actual date of termination.
6.3 Effect of Termination.
(a) Any termination of this Agreement shall not release Bank from paying
any Fees or expenses owed to nFront. In the event of any termination of
this Agreement, all obligations owed by Bank to nFront shall become
immediately due and payable upon termination.
(b) Upon termination of this Agreement, Bank shall promptly and without
charge return to nFront all copies of all Documentation, maintenance
and policy manuals and other publications of nFront relating to the
System (collectively "Copies"). Bank shall destroy all Copies contained
on any hard drive or other fixed medium of storage. Bank's license to
access the Software and license to use the nFront Marks as provided in
this Agreement shall immediately terminate. Within sixty (60) days from
the date of termination of this Agreement, an officer of Bank shall
certify in writing to nFront that Bank has complied with all
requirements of this Section.
(c) Upon termination of this Agreement, nFront shall (i) assign Bank's
domain name to another Internet service provider designated in writing
by Bank; and (ii) provide a notice at Bank's former Internet Branch
location for a thirty (30) day period of the new location of Bank's
home page on the Internet. Bank shall retain all rights in any
graphics, trademarks, and works of authorship provided by Bank.
7. INDEMNIFICATION; OTHER RELIEF.
7.1 Indemnification by Bank. Bank shall indemnify, defend and hold harmless
nFront, its officers, directors, shareholders, employees, agents and affiliates
from and against any claims, losses, damages, liabilities or expenses
(including, without limitation, reasonable attorneys' fees and expenses)
(collectively, "Claims") resulting from or arising out of (i) mistakes relating
to or misuse of the System or any part thereof by Bank, Bank's agents or any
End-User, including, without limitation, any misrepresentations made by Bank
with respect to the System, or (ii) Bank's compliance or alleged noncompliance
with the provisions of Regulation E, 12 CFR Section 205 et seq., or other
applicable law or regulation, or (iii) an allegation that any trademark, trade
name, service xxxx, logo or other information (or any portion thereof) provided
by Bank to nFront in connection with the design of the Bank's Internet Branch
infringe upon or misappropriate any copyright, patent, trademark or trade secret
of any third party, or (iv) a violation of any provision of any agreement
between Bank and any third party. nFront shall promptly notify Bank in writing
and in reasonable detail of any Claim. Bank
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shall have the authority to control the defense and settlement of such Claim,
suit or proceeding, and nFront shall give reasonable assistance to Bank to
enable Bank to defend the Claim. nFront shall have the right, but not the
obligation, to participate, at its own expense, with respect to any such third
party Claim. No such third party Claim shall be settled or compromised by Bank
without the prior written consent of nFront if such settlement or compromise in
any manner indicates that nFront contributed to or was responsible for the cause
of any such Claim.
7.2 Indemnification by nFront. nFront shall indemnify, defend and hold
harmless Bank, its officers, directors, shareholders, employees, agents and
affiliates from and against any claims, losses, damages, liabilities or expenses
(including, without limitation, reasonable attorneys' fees and expenses)
(collectively, "Indemnified Claims") resulting from or arising out of (i) the
willful misconduct by nFront, its employees or agents (including without
limitation unauthorized funds transfers), and (ii) an allegation that the System
(or any portion thereof) infringes upon or misappropriate any copyright, patent,
trademark or trade secret of any third party. nFront shall have the authority to
control the defense and settlement of such Indemnified Claims and Bank shall
give reasonable assistance to nFront to enable nFront to defend the Indemnified
Claim. Bank shall have the right, but not the obligation, to participate, at its
own expense, with respect to any such Indemnified Claim. No such Indemnified
Claim shall be settled or compromised by nFront without the prior written
consent of Bank if such settlement or compromise in any manner indicates that
Bank contributed to or was responsible for the cause of any such Indemnified
Claim. If the System is finally determined by a court of competent jurisdiction
to constitute an infringement of any patent, copyright, trademark or other trade
secret of a third party and its use is enjoined, nFront shall have sole
discretion to settle or not to settle the Claim and shall either:
(i) procure the right for Bank to continue to use the System under this
Agreement;
(ii) replace or modify the System with a version of the System that is not
so infringing; or
(ii) if (i) and (ii) above are not reasonably available, then, in nFront's
sole discretion, remove the System, and terminate the Agreement.
This Section sets forth the sole and exclusive remedy of Bank and the complete
liability of nFront with respect to any Indemnified Claim hereunder. nFront
shall have no liability for any Indemnified Claim based upon the unauthorized
modification, combination, operation or use of any portion of the System with
equipment, data, software, or programming not supplied by nFront.
7.3 Arbitration. Except as provided below, all disputes or claims relating
in any manner to this Agreement (including, without limitation, any alleged
breach thereof or the termination or non-renewal thereof) shall be settled by
binding arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. The parties agree that the arbitrators in any
such arbitration shall not be authorized to award any punitive damages in
connection with any controversy or a claim settled by arbitration hereunder. The
decision of the arbitrators shall be final and binding upon the parties and
judgment upon the award may be entered in any court having jurisdiction thereof.
Any arbitration shall take place in Atlanta, Georgia, if initiated by Bank, or
in the county where Bank's corporate offices are located, if initiated by
nFront; provided however that nFront may initiate arbitration under this Section
in Atlanta, Georgia for collection of Fees owed by Bank under this Agreement.
The expenses of the arbitrators shall be allocated by such arbitrators. The
arbitration shall be conducted before a panel of three (3) arbitrators, one
selected by Bank, one selected by nFront, and one selected by mutual agreement
of the arbitrators selected by Bank and nFront. If a party fails to select an
arbitrator as required herein within thirty (30) days from the written request
by the other party ("Selecting Party"), the Selecting Party shall then be
entitled to select the second arbitrator, with the two selected arbitrators
selecting the final arbitrator by mutual agreement.
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7.4 Injunctive Relief. Notwithstanding any other term of this Agreement,
the parties may apply to a court of competent jurisdiction for any appropriate
equitable or injunctive relief, including, without limitation, preliminary and
permanent injunctions and temporary restraining orders. The parties also
acknowledge that (i) any use or threatened use of data related to End Users, the
Software, System, nFront Marks or Bank Marks in a manner inconsistent with this
Agreement, or (ii) any other misuse of the Proprietary Information of either
party will cause immediate irreparable harm to the non-breaching party for which
there is no adequate remedy at law. Accordingly, the parties agree that the
non-breaching party shall be entitled to immediate and permanent injunctive
relief from a court of competent jurisdiction in the event of any such breach or
threatened breach. The parties hereby waive the defense that the non-breaching
party has or will have an adequate remedy at law for any such breach or
threatened breach. The parties agree and stipulate that the non-breaching party
shall be entitled to such injunctive relief without posting a bond or other
security; provided however that if the posting of a bond is a prerequisite to
obtaining injunctive relief, then a bond in the amount of $1000 shall be
sufficient. Nothing contained herein shall limit either party's right to any
remedies at law, including the recovery of damages from the other party for
breach of this Agreement. The prevailing party in any action pursuant to this
Section 7.4 shall be entitled to collect from the losing party its attorneys'
fees and full costs of such action.
7.5 Limitation of Liability. For the purpose of this Section 7.5: (i) the
term "nFront" shall mean nFront and its affiliates, officers, shareholders and
endorsers (including without limitation the Corporation for American Banking and
the American Bankers Association, Inc.), and (ii) the term "Bank" means Bank and
its affiliates, officers and shareholders. Except for Bank's payment obligations
hereunder, in no event shall either party or their be liable for special,
incidental, consequential or other indirect damages arising out of or relating
in any manner to this Agreement under any cause of action, including, without
limitation, lost profits, even if the parties have been advised of the
possibility of such damages. In no event shall the maximum, cumulative liability
of nFront or Bank relating in any manner to this Agreement (excluding any claims
arising under Sections 7.1 or 7.2 hereof) regardless of the type or nature of
the claim(s), exceed the greater of (i) the Fees paid to nFront by Bank under
this Agreement within the twenty-four (24) month period immediately preceding
the occurrence of such claim(s), or (ii) $50,000. In no event shall either
party's maximum, cumulative liability for claims under Sections 7.1 or 7.2
hereof exceed $1,000,000. The limitations of liability in this Section 7.5 shall
not apply to Bank's obligation to pay Fees including, without limitation,
Termination Fees. Neither party may bring any claim under this Agreement more
than two (2) years after such claim first accrues. The parties agree that the
Corporation for American Banking and the American Bankers Association, Inc. are
express third party beneficiaries to the limitations under this Section 7.5.
7.6 Use of the System by Third Parties. Without limiting the terms of
Section 7.5, the parties acknowledge that Bank is solely responsible for the use
of the System (and any resulting damages) by End Users and other third parties
including, without limitation, any improper or unauthorized transfers of funds
from accounts via the System; provided however that nFront shall be responsible
for any improper or unauthorized transfers of funds from accounts via the System
by its employees and contractors hereunder.
8. MISCELLANEOUS PROVISIONS.
8.1 Waiver. Any failure of a party to comply with any obligation, covenant,
agreement or condition herein may be expressly waived in writing by the other
party, but such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
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8.2 Entire Agreement. This Agreement, the Exhibits and schedules hereto
constitute the entire understanding of the parties with respect to the subject
matter of this Agreement and supersede all prior understandings, whether written
or oral, between the parties with respect thereto.
8.3 No Third Party Beneficiary Rights. Except for the express third party
beneficiaries named in Section 7.5 (Limitation of Liability), no provision of
this Agreement is intended or shall be construed to provide or create any third
party beneficiary right or any other right of any kind in any End User or any
client, customer, affiliate, insurer, lender, shareholder, partner, officer,
director, employee or agent of any party hereto, or in any other person.
8.4 Third Party Processor. If Bank utilizes a third party to process Bank's
file information, the use of such third party shall not diminish or relieve Bank
of its obligations under this Agreement.
8.5 Amendment; Binding Effect; Assignment.
(a) No amendment, modification or alteration of the terms of this Agreement
shall be binding unless in writing and executed by the parties hereto.
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors (including
without limitation successors by merger) and permitted assigns.
(b) Except as provided below, neither party may assign this Agreement in
whole or in part without the prior written consent of the other party.
Either party may freely assign this Agreement in conjunction with (i) a
sale of all or substantially all of its assets, or (ii) a merger or
similar transaction; provided that the acquiring or resulting entity
agree in writing to be bound by the terms of this Agreement.
(c) Neither party shall unreasonably withhold or delay its consent to a
requested an assignment by the other party. Any attempted assignment in
violation of this Section shall be void and of no effect.
8.6 Force Majeure. nFront shall not be liable for loss or damage resulting
from any cause beyond its reasonable control, including, but not limited to: (i)
Internet network failures or capacity limitations, (ii) compliance with
regulations, orders or instructions of any federal, state or municipal
government or any department or agent thereof that delay or restrict performance
hereunder, or (iii) acts of God, acts of third parties, acts or omissions of
Bank, acts of civil or military authority, fires, embargoes, war or riot.
8.7 Governing Law. This Agreement shall be governed, construed and enforced
in accordance with the laws of the State of Georgia and the U.S. without giving
effect to the conflict-of-laws principles thereof.
8.8 Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the Term,
such provision shall be fully severable. This Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement.
8.9 Counterparts. This Agreement may be executed simultaneously or in two
or more counterparts, each of which together shall constitute one and the same
instrument and shall be deemed an original hereof.
8.10 Notices. All notices required or permitted under this Agreement shall
be made in writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail
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(return receipt requested), U.S. mail or facsimile. All notices shall be
addressed to the parties at the respective addresses or facsimile numbers
indicated above.
8.11 Survival. All provisions of this Agreement which by their nature are
intended to survive the expiration or termination of this Agreement shall
survive and remain in full force and effect including, but not limited to, the
applicable provisions of Sections 3, 4, 5, 6, 7, and 8.
8.12 Headings; Interpretation. Headings of particular Sections are inserted
only for convenience and are not to be considered a part of this Agreement or be
used to define, limit or construe the scope of any term or provision of this
Agreement. Should any provision of this Agreement require judicial
interpretation, the parties agree that the court or arbitrators construing the
same shall not apply a presumption that the terms of this Agreement shall be
more strictly construed against one party than against another. The parties
agree and stipulate that the Termination Fees are a reasonable pre-estimate of
potential losses that (i) nFront would incur, (ii) are otherwise difficult of
impossible to estimate, and (iii) are not intended as a penalty.
8.13 This Agreement Controls. Notwithstanding the content of any purchase
order, sale order, sale confirmation or any other document relating to the
subject matter of this Agreement, this Agreement shall take precedence over any
such document, and any conflicting, inconsistent, or additional terms contained
therein shall be null and void.
8.14 Sample End User Agreement. nFront may, at Bank's request, provide Bank
with sample End User Internet banking agreements ("Sample Agreements"). All
Sample Agreements are for reference purposes only. nFront makes no
representations or warranties regarding the Sample Agreements and provides all
Sample Agreements to Bank "AS IS" and with all faults. Bank must independently
verify the completeness, effectiveness and enforceability of all terms of the
Sample Agreements through its own legal counsel. By accepting delivery of any
Sample Agreement, Bank agrees that nFront shall have no liability under any
legal theory relating to any Sample Agreement or Bank's use thereof.
8.15 Exhibits. Exhibits attached hereto are incorporated into this Agreement
for all purposes.
EXHIBIT A Authorized Services
EXHIBIT B Fees
EXHIBIT C The System
EXHIBIT D nBranch - Internet Branch Specifications
EXHIBIT E Technical Specifications
EXHIBIT F Installation, Training and Daily Processing Requirements
EXHIBIT G Xxxx Payment Services
EXHIBIT H Consulting Services
EXHIBIT I System Service Levels
EXHIBIT J Optional Features
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IN WITNESS WHEREOF, the parties have executed this Agreement as of Effective
Date.
NFRONT, INC.
By:
---------------------------------------
Name:
---------------------------------------
Print Name
Title:
---------------------------------------
Date:
---------------------------------------
BANK
By:
---------------------------------------
Name:
---------------------------------------
Print Name
Title:
---------------------------------------
Date:
---------------------------------------
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EXHIBIT A - AUTHORIZED SERVICES
Bank is authorized to use the services indicated below for the Fees listed in
EXHIBIT B.
[ ] The nBranch Service (described in EXHIBIT C)
--------- --------- ----------- ----------
nFront Date Bank Date
[ ] The nHome Service (described in EXHIBIT C)
--------- --------- ----------- ----------
nFront Date Bank Date
[ ] The nBusiness Service (described in EXHIBIT C)
--------- --------- ----------- ----------
nFront Date Bank Date
Options:
[ ] nMotion (10 frames)
[ ] Management Statistics Reporting
[ ] Telephone Xxxx Payment
[ ] Check Imaging - DSI
[ ] Check Imaging - Greenway
[ ] nHome Employee Training Program
[ ] nHome Jump Start Marketing and Promotion Program
[ ] Internet TV Site
[ ] Zack's Stock Research
[ ] Other Special Services (Describe)
--------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
--------- --------- ----------- ----------
nFront Date Bank Date
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EXHIBIT B - FEES
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EXHIBIT C - THE SYSTEM
NBRANCH - INTERNET BRANCH SERVICE
1. Bank Branding of Internet Site
2. 7 Secure Product Services
- Checking
- Savings
- Certificate of Deposit
- XXX
- Consumer/Commercial Loans
- Mortgage Loans
- Line of Credit
3. Additional Secure Product Service
- Guestbook
4. Financial Calculators
- Loan
- Maximum Loan
- College Planning
- Mortgage
- Retirement
5. Administration Site
- Guestbook Secure Database Management
- Products & Services Applications with Secure Database
Management
- Products & Services Application Email Notifications
- Products & Services - Update Rates and Terms
- Password Maintenance Interface
- Audit Management
- Bank can view pending or processed applications and
who approved/denied application
- Bank can view changes to products and services rates
and terms which are automatically logged into the
secure database
6. Email - The Bank will be assigned one @xxxxxxx.xxx email address. This
"general" mailbox will forward all incoming mail to any/all Bank
specified email addresses
NHOME - ONLINE INTERNET BANKING SERVICE
1. View Account Balances and Current Statement Transactions
- DDA/Savings
- CD/XXX
- Loans
- Line of Credit
2. Internal Transfer of Funds between DDA, Savings, Loan and Line of
Credit accounts, using ACH formatted file
- Immediate and Future Transfers
- One Time and Recurring Transfers
3. Pending Web Transfer and Xxxx Pay Transactions
- View, edit, delete future Web Transactions
4. Xxxx Payment
- One Time, Future and Recurring Payments
- Payment Reporting
5. Custom Reports for Historical Transactions
- View customer account information for up to two years
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6. Password Manager
- Secure log-in
- Create and change customer password information
7. Personal Information
- View customer information file
8. PFM Downloads
- Microsoft Money(TM)
- Quicken(TM)
9. Online Help
10. Online Banking Demo
11. Bank Administration Site - nHome Functions
- Detailed Internet Branch Billing
- Billing System for nHome On-Line Banking and Xxxx Payment
Customers, using ACH formatted file
- nReach - Data Mining and Marketing module
- Database Query Capability
- Promotional E-mails to selected customers
NBUSINESS ONLINE BANKING SERVICE
1. View Account Balances and Histories
- DDA/Savings
- CD/XXX
- Loans and Line of Credit
2. ACH formatted Transfers - Book Transfers, Drafts, Disbursements, Direct
Deposits between DDA, Savings, Loan, LOC accounts
- Immediate and Future Transfers
- One Time, Recurring Transfers and Pending Transfers
- View Historical Transfers
3. Xxxx Payment
- Immediate and Future Xxxx Payments
- One Time and Recurring Payments
- Pending Xxxx Payments
- Historical Xxxx Payments
4. User resources
- Online Payee Database
5. Balance Reporting
- View customer account information for up to two years
6. Multi-User permissions
- SuperUser sets up and controls subordinate members' functional
access
- Secure log-in
- Create and change customer password information
- Control Account access and disbursement levels
7. Business application integration
- Microsoft Money, Quicken
- Quick Books, Comma Delimited
8. Online Help
9. Virtual Status Requests - EFTPS (Electronic Federal Tax Payments), Stop
Payments, Wire Transfers
- Immediate and Future transactions (where applicable)
- Recurring transactions
- Pending Transactions
- View Historical Transfers
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10. Additional Functions
- ACH version of EFTPS
11. Bank Administration Site - nBusiness Functions
- Set / Reset challenge code / Password for SuperUser
- Flag accounts as Cash Management
- Audit Management
- Receive / respond to time-sensitive Virtual Status Requests
(VSRs): Stop Pay, Wire Transfer, EFTPS
- Detailed Internet Branch Billing
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EXHIBIT D -
INTERNET BRANCH SPECIFICATIONS
1. Home Page
- Bank branding (logo)
- Custom navigational controls
- Maximum of 3 scanned images or 5 custom graphics
2. Product and Services (60 sub-page maximum or 20 unique products)
- Bank branding (logo)
- Custom navigational controls
- Standardized or customized forms/applications
- Maximum of 5 scanned images or custom graphics
3. Feature Product (3 sub-page maximum or 1 product)
- Bank branding (logo)
- Custom navigational controls
- Standardized or customized forms/applications
- Maximum of 1 scanned image or custom graphic
4. Guest Book
- Bank branding (logo)
- Custom navigational controls
- Standardized or customized forms/applications
5. Financial Calculators
- Bank branding (logo)
- Custom navigational controls
- Standard nFront financial calculator suite
6. Search Engine
- Bank branding (logo)
- Custom navigational controls
- Standard nFront search engine application with documented
instructions
7. Frequently Asked Questions (FAQ)
- Bank branding (logo)
- Custom navigational controls
- Standardized nFront copy available to Bank for use or can be
completely customized to suit the Bank's needs
8. Contact Us (5 sub-page maximum)
- Bank branding (logo)
- Custom navigational controls
- Maximum of 5 scanned images or 1 custom graphic
9. Bank Information (15 sub-page maximum)
- Bank branding (logo)
- Custom navigational controls
- Maximum of 10 scanned images or 5 custom graphics
10. Web Development Criteria:
- All Web site content must be submitted to nFront in an IBM
Microsoft Word (.doc) or PC Text (.txt) Format.
- A single page may contain up to a maximum of 500 words of
text.
- Scanned images are defined as static images of photographs or
printed copy that have been scanned into an electronic format.
nFront recommends that these image files be no larger than 50k
each or more than 100k on any one particular page.
- Custom Graphics are defined as static images of line art that
have been scanned into an electronic format. nFront recommends
that these image files be no larger than 50k each or more than
100k on any one particular page.
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- nFront will work with the Bank to generate minor animation
effects in the form of animated GIFs or mouse rollovers to the
extent they do not deviate from standard Web design
techniques. nFront recommends that these animated image files
be no larger than 30k each or more than 60K on any one
particular page.
- If the Bank requests elements of the Web site that would
require advanced or non-standard design techniques outside the
scope of the contract nFront will provide the Bank with an
estimate of time and cost. nFront will provide the Bank with
design suggestions/alternatives that can reduce the cost while
attempting to maintain the design concept.
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EXHIBIT E - TECHNICAL SPECIFICATIONS
FILE TRANSMISSION COMPUTER
1. Pentium 75 Processor or greater PC
2. 16 MB RAM or greater
3. 28.8 BPS Asynch modem or greater
4. CD ROM drive
5. Monitor
6. Keyboard
7. Mouse
8. Dedicated analog telephone line for dialup connectivity
9. PC must be housed in a secure area of the Bank or Bank's data
processor and be available to receive daily ACH files and
transmit nightly balance files.
REQUIRED SOFTWARE
1. Microsoft Windows 95 Version 4.00.950 B or greater on CD ROM
2. Microsoft Plus!
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EXHIBIT F - INSTALLATION, TRAINING AND
DAILY PROCESSING REQUIREMENTS
IMPLEMENTATION AND TRAINING SCHEDULE
The implementation of the nFront product line involves up to three
individual installation projects, nBranch, nHome, and nBusiness,
depending on which products the Bank has purchased. Each product will
be scheduled separately based on the availability of nFront resources.
NBRANCH
1. Upon execution of this Agreement nFront will forward to Bank a
copy of nFront's implementation manual.
2. At a mutually agreeable time following contract execution
nFront will conduct a kick off meeting with Bank personnel.
The kick off meeting will be in the form of a conference call
and will last approximately 2 hours. Bank must have Internet
access at their location during the session. During this
meeting the following topics will be discussed:
- Description of Web site content needed to begin work
(See Implementation Manual)
- Proposed graphic design for the Web site
- Proposed timelines for project completion with
agreed-upon due dates ("Project Timeline")
3. By the due dates in the Project Timeline, Bank will provide
nFront the nBranch Web site content, setup parameters for
nHome, and setup parameters for nBusiness which are detailed
in the Implementation Manual. Upon receipt of the Web site
content and setup parameters, nFront will begin site
construction based on the Project Timeline. If the Bank fails
to deliver the necessary Web site content and setup parameters
by the due dates in the Project Timeline, nFront reserves the
right to adjust the Project timeline based on the then-current
nFront implementation schedule.
4. Bank will need to make available to nFront a primary and
secondary "Internet Branch Manager." These individuals will be
responsible for receiving and processing Web site product
Services, guest book entries and emails, updating product
rates and terms and general administrative functions. nFront
will conduct a training session prior to the Bank completing
the testing phase. The session will be in the form of a
conference call and will last 2-3 hours. The Bank must have
Internet access at their location during the session. The
session will include instruction on Web site administrative
functions.
5. Upon completion of the nBranch Web site, Bank will be asked to
sign nFront's Web Site Acceptance Agreement which stipulates
the completion of the Web Site.
NHOME AND NBUSINESS
1. At a mutually agreeable time following contract execution
nFront will conduct a kick off meeting with Bank personnel.
The kick off meeting will be in the form of a conference call
and will last approximately 1 hour. During this meeting the
following topics will be discussed:
- Set up parameters for nHome and/or nBusiness
- Proposed timelines for project completion with
agreed-upon due dates ("Project Timeline")
2. Bank will need to make available to nFront a primary and
secondary training subject. These individuals will be
responsible for learning the nHome products. nFront will
conduct a training session prior to the training phase. The
session will be in the form of a conference call and will last
2-3 hours. The Bank must have Internet access at their
location during the session. The session will include
instruction on application functions. Trainees will be
directed to utilize nFront's Online Banking Training
Checklist.
3. The Bank will be invoiced on the first day of the month
following the completion of the Online Banking Training
Checklist.
NBRANCH WEB SITE CHANGES
nFront will provide 3 hours of nBranch Web site changes monthly at no cost.
Unused hours may not be carried over into future months. All changes exceeding 3
hours monthly will be billed at nFront's then
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standard hourly rate. All requested changes must be submitted to nFront in
writing. nFront will provide a good faith, non-binding estimate of hours needed
to complete, cost if applicable and a delivery date. nFront's current rates are
listed below:
Hourly Blocks Cost per Hour
------------- -------------
0 - 100 $ 150.00
101 - 200 $ 125.00
200 + $ 100.00
DAILY PROCESSING
1. Bank's Data Center is responsible for verifying that account balance
files for nHome and nBusiness have been sent to nFront from the Bank
Data Center on a daily basis.
2. Bank's Data Center on a daily basis is responsible for retrieving and
processing the ACH formatted file created by nFront for the Bank .
3. Bank is responsible for obtaining all proper authorizations for
electronic funds transfers, including, but not limited to ACH drafts,
ACH disbursements, direct deposits, stop pays, wire transfers, and
EFTPS.
4. Bank is responsible for obtaining proper authorization from End Users
in order to process ACH drafts when billing the End Users using
nFront's end-user billing feature.
5. For nBusiness:
a. Bank or Banks' Data Center must be the ACH originator; and
b. Bank must maintain an Electronic Services Agreement with their
End Users regarding the acknowledgment and use of the Internet
as a delivery channel for banking transactions. The agreement
shall also document Bank's procedure and requirements for each
type of transaction; and
c. Bank is responsible for verifying that the morning transaction
"in-clearing" file(s) have been sent to nFront from the Bank
or Bank's data center on a daily basis.
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EXHIBIT G - XXXX PAYMENT SERVICES
1. Xxxx Payment Services. Subject to the terms of the Agreement and this
Exhibit, nFront will provide the Xxxx Payment Services listed herein
through a third party processing agent ("Processing Agent").
2. Terms of Xxxx Payment Services. nFront will provide Xxxx Payment
Services to End Users upon the following conditions:
a. Eligibility. Only the following End Users shall be eligible to
receive Xxxx Payment Services: (i) consumer demand deposit
account holders ("Consumer Account Holders") or (ii) business
demand deposit account holders ("Business Account Holders").
b. Transaction Cap. nFront is not obligated to forward for
processing a payment to the Processing Agent in excess of
$9,999.00 ("the Transaction Cap"). nFront or the Processing
Agent reserves the right to increase or decrease the
Transaction Cap in its sole discretion and nFront shall give
Bank reasonable notice of any such increase or decrease. Bank
may choose to modify the Transaction Cap upon written
notification to nFront; however, if Bank chooses to increase
the Transaction Cap, Bank will bear the credit risk for all
payments in excess of the Transaction Cap as specified below.
c. Credit Risk.
i nFront bears the credit risk associated with
potential Non Sufficient Funds ("NSF") or return
items for all Consumer Account Holders up to the
Transaction Cap. Bank bears the credit risk for all
Consumer Account Holder payments in excess of the
Transaction Cap if Bank chooses to increase the
Transaction Cap.
ii nFront bears the credit risk associated with NSF or
return items for Business Account Holders up to a
maximum loss during the Term of the Agreement of:
- $1,000.00 per Business Account Holder that
has been open with the Bank for less than
one year, and
- $2,500.00 per Business Account Holder that
has been open with the Bank for one year or
longer.
iii Bank bears the credit risk for all Business Account
Holders in excess of the above limits regardless of
the Transaction Cap.
d. Risk Reduction Measures. nFront or the Processing Agent may,
from time to time, institute certain operating procedures to
reduce credit risk and exposure ("Procedures"). Such measures
may include, but are not limited to, pre-authorized drafts for
Business Account Holders, verification of funds through ATM
networks, separating debits from credit so that payments are
not sent until good funds confirmations are received, and the
like. Bank and all eligible End Users are subject to and shall
conform to all such Procedures. nFront shall use commercially
reasonable efforts to inform Customer in advance of the
implementation of such risk-reduction procedures.
3. Fees and Expenses. Bank shall pay the xxxx payment Fees listed on
EXHIBIT B ("Xxxx Payment Fees"). nFront shall xxxx Bank all Xxxx
Payment Fees incurred in the previous month. Payment by Bank is due
within thirty (30) days of receipt of the invoice.
4. Xxxx Payment Services - Back-End Processing.
a. Accurate payment data, including End User account number and
payment information, provided by End users in files supplied
to the Processing Agent, will be taken through a batch
interface from nFront each business day during the late
evening hours (Day 0). The payment transactions will be
processed the following day (Day 1) after the transaction was
initiated by the End User. On Day 1, Processing Agent will
initiate ACH debits and credits. Credits may be sent via
check, electronic transmissions, or ACH to vendor payees. All
debits and credits are sent on Day 1.
b. Processing Agent will handle Funds Transfer in accordance with
End User payment instructions activated in accordance with
paragraph 5 (a). Processing Agent will supply and transmit to
the sponsoring Bank payment information for debit against End
User account. The initiation of this transfer occurs on Day 1.
The End User account is debited on Day 2.
c. Processing Agent will handle End User inquiries regarding
payments made on behalf of End User to Vendor payees. Customer
Service is available from 7 a.m. to 7 p.m. Monday through
Friday and
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Saturday from 8 a.m. to 5 p.m. Central Standard Time or as
otherwise designated by Processing Agent.
d. From time to time Processing Agent may make changes to the
system. nFront will notify Bank or Bank's Data Center in
advance of any data changes.
5. Late Fees. End Users are eligible for reimbursement of late fees
attributable to payment errors by the Processing Agent under the
current reimbursement policies referenced in the on-line "HELP" and
"XXXX PAYMENT" sections of the System.
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EXHIBIT H - CONSULTING SERVICES
1. CONSULTING AND FEES. Pursuant to the terms and conditions of the
Agreement and this Exhibit, (i) nFront will provide to Bank the
consulting services described in Schedule A, below ("Consulting
Services"), and (ii) Bank will pay to nFront the Fees for the
Consulting Services as set forth in Schedule A, below.
2. PROMOTIONAL MATERIALS. Except as otherwise provided herein, nFront
reserves all rights, including but not limited to all copyrights, in
and to all promotional materials and other works of authorship provided
hereunder ("Materials"). Except as otherwise provided herein, Bank may
not reproduce or copy the Materials.
3. LIMITED WARRANTY. For a period of sixty (60) days from the date of
delivery to Bank, nFront warrants that: (i) the Consulting Services are
performed in accordance with normal industry standards, and (ii) the
media in which the Materials are embodied is free from material
defects. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 3, NFRONT
DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR
REPRESENTATIONS TO BANK WITH RESPECT TO THE CONSULTING SERVICES OR
MATERIALS OR OTHERWISE REGARDING THIS ADDENDUM, WHETHER ORAL, WRITTEN,
EXPRESS, IMPLIED OR STATUTORY. UNLESS SET FORTH IN THIS ADDENDUM, NO
REPRESENTATION OR OTHER AFFIRMATION OF FACTS SHALL BE BINDING ON NFRONT
(INCLUDING BUT NOT LIMITED TO ANY STATEMENT REGARDING PERFORMANCE OF
THE CONSULTING SERVICES OR STATEMENT REGARDING THE QUALITY OF THE
MATERIALS). WITHOUT LIMITING THE FOREGOING, NFRONT EXPRESSLY DISCLAIMS
ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ACCURACY, OR
FITNESS FOR A PARTICULAR PURPOSE REGARDING THE CONSULTING SERVICES OR
MATERIALS OR OTHERWISE.
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SCHEDULE A - CONSULTING SERVICES STATEMENT OF WORK
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EXHIBIT I -- SYSTEM SERVICE LEVELS
1. CUSTOMER SERVICE.
A. Hours of Operation. Customer support calls can be logged to nFront's
service department on business days between the hours of 8:00 AM and
6:00 PM Eastern Standard Time. nFront attempts to respond to all
service calls within 30 minutes of the call being logged via telephone
or email. nFront observes 10 federal holidays annually, at which point
the customer service department is unavailable. The current holiday
schedule will be provided to the Bank no later than the first business
day of the year.
B. System Maintenance and Scheduled Outages. nFront periodically performs
routine maintenance in the data center and to the System. System
maintenance will be scheduled between the hours of 12:00 AM and 6:00 AM
Eastern Standard Time. When such scheduled maintenance will result in
the System being inaccessible outside of the hours of 12:00 AM and 6:00
AM Eastern Standard Time, or for more than two hours during that time,
the Bank and Bank Data Center will be notified via email at least 2
business days prior to the scheduled outage.
C. Emergency System Maintenance and Unscheduled Outages. It is possible
that nFront may need to perform immediate System maintenance that will
result in the online banking service being inaccessible. In this event,
the Bank will be notified via email as soon as possible.
2. FILE UPDATES. The Bank Data Center is responsible for: (1) the
transmission of nightly data files from its host processing system to
nFront's data center, and (2) the retrieval of the ACH formatted file
created daily in the nFront data center. nFront will make commercially
reasonable efforts to notify the Bank Data Center on the following
business morning if files are not transmitted during the scheduled
download window.
3. SYSTEM AVAILABILITY.
A. Definition. System availability is considered to be access by the Bank
and End Users to the Bank's Web Site and System from outside of the
nFront facilities via a working connection to the Internet. "Systems
Availability" is defined as the acceptable ratio of hours those
production systems are available (excluding regularly scheduled
maintenance of up to four (4) hours per week) in a calendar month to
the total number of hours in that calendar month. nFront is not
responsible of liable for problems or outages associated with systems
or providers outside of nFront's control, such as, but not limited to
telecommunication failures, Internet Service Providers (ISPs) or the
Internet network backbone.
C. Standards
1) Monthly System Availability > 99.5%: no Bank credit.
2) Monthly System Availability => 98.5% and <= 99.5%: no Bank
credit.
3) Monthly System Availability => 98.0% and < 98.5%: Bank credit
of 1.0% of that calendar month's invoice as provided below.
4) Monthly System Availability => 97.5% and < 98.0%: Bank credit
of 2.0% of that calendar month's invoice as provided below.
5) Monthly System Availability => 97.0% and < 97.5%: Bank credit
of 3.0% of that calendar month's invoice as provided below.
6) Monthly System Availability < 97.0%: Bank credit of 5.0% of
that calendar month's invoice as provided below.
D. Bank Credits for Unavailability of the System.
If nFront fails to meet the System Availability standards as described
in this Exhibit during any given month, then nFront will, upon
notification by Bank and verification by nFront, apply the credits set
forth above based on the Fees accrued and paid by Bank during the
applicable month. nFront shall apply those Bank credits against future
Fees due from Bank. nFront will issue the applicable Bank credits
against Bank's following month invoice. In no event shall Bank be
entitled to offset of withhold Fees. In addition, nFront will be
relieved of its obligation to pay such Bank credits one time during
each twelve (12) month period in which nFront would otherwise owe Bank
credits (i.e., nFront is allowed to fall below 98.5% System
Availability for one month per year without paying the Bank credits
listed above).
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4. SYSTEM MODIFICATIONS.
A. Minor System Enhancements. Minor System enhancements are modifications
that provide additional functionality to the existing product/service.
Implementation of such enhancements will be preceded by a description
of the change and directions for its use via email to the Bank at least
3 business days prior to implementation by nFront.
B. Major System Enhancements. Major System enhancements include the
delivery of new product modules/components. If an enhancement is such
that delivery requires a detailed implementation process, such
implementations will be scheduled based on nFront's current resource
availability. Bank will be provided with a detailed timeline including
start and finish dates.
C. File Interface Changes. Certain System enhancements require upgrading
to a different version of the file interface. Bank Data Center will
need to comply with the necessary interface modifications to take
advantage of such enhancements.
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EXHIBIT J- OPTIONAL FEATURES
I. CHECK IMAGING OPTION
DEFINITIONS
- An "Image" is defined as the image of the front or back of a check
drawn on an End User's checking account. If an End User views both the
front and back of a check, then that is two Images.
- "Check Imaging" is defined as the process of allowing End Users to view
Images of their checks.
- "Check Image Software and Server" is defined as the software and
hardware that the Bank uses to capture, store and transmit Images to
nFront.
CHECK IMAGING REQUIREMENTS AND DESCRIPTION
A. At its sole cost and expense, Bank must provide the Check Image
Software and Server with the appropriate functionality required for
nFront to support a web-enabled interface. The Bank's Check Image
Software and Server must be at the appropriate revision levels as
supported by nFront in order to support a web-enabled interface.
B. The Bank will advise nFront how many days from a check's transaction
date that the Image is available for an End User to view. The Images
will display for the End User only if nFront can access the Bank's
Check Image Server and the Image(s) are available on the Bank's Check
Image Server. The selected check's transaction date, sent to nFront
from the Bank's daily import file, will be the date nFront uses to
access the Image on the Bank's Check Image Server.
C. The End User can view Images by either (i) accessing Summary and
Transfer Information and choosing to view details for a specific
checking account, or (ii) accessing Custom Reports and requesting
checking account information be displayed. When the End User reviews
the resulting display from either of these options, the check number
will appear as a button which the End User can select to view the
corresponding Image. The Image will display only if the check number
falls within the time frame the Bank has indicated the Image will be
available on the Check Image Server.
II. INVESTMENT RESEARCH OPTION
DEFINED TERMS
- "Investment Research" is defined as the ability for End Users to view
Content (as hereinafter defined) related to stocks and bonds.
- "Content" is defined as the following information that is available
once a symbol is entered:
- Annual Balance Sheet - Monthly update
- Annual Income Statement - Monthly update
- Summary of Analyst Recommendations & Earnings Estimates
- Weekly update
- Industry Rank - Weekly update
- Closing Price - Daily update
- Company Description - Company Periodic - Monthly update
- Inter-day Price and Volume chart - Daily update
- Expected Earnings Report Date - Weekly update
- Quotes (15 minute delayed) - Intraday update
- EPS Surprises - Intraday update
- Ticker Symbol Search - Look Up File - Intraday update
- Investing 101 - Yearly update
- About Zacks - Yearly update.
- Any other information provided hereunder
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A. INVESTMENT RESEARCH REQUIREMENTS AND DESCRIPTION
nFront has entered into an agreement with Zacks Investment Research, Inc.
("Zacks") to provide Investment Research to the Bank and the Bank's End Users
from the Bank's web site. Investment Research and Content will be available to
End Users at the Bank's home page or product and services option using a text
link such as `Wall Street Research', `Investment Research' or `Stock Market
Information'. The End User will be able to enter a symbol value, look up the
symbol value or view earnings surprises. Either the Bank or nFront may cancel
this service upon ninety (90) days written notice.
B. DISCLAIMER
The Content is provided to Bank and End Users on an "AS IS" basis. Neither
nFront nor Zacks or their respective officers, employees, successors, assigns,
affiliates, representatives or agents disclaim any and all warranties including,
but not limited to, any warranties as to the accuracy, suitability, timeliness
or usefulness of any Content, express or implied; any warranties of
merchantability, accuracy or fitness for a particular purpose. In no event will
nFront or Zacks be liable for damages of any type related to the use, inability
to use or inability to access the Content, whether based in contract, tort or
otherwise.
III. TELEPHONE XXXX PAYMENT OPTION
DEFINITIONS
- "Telephone Xxxx Payment Service or TBP Service" is an option to the
nHome Service that enables the Bank's customers to schedule xxxx
payments over the telephone.
- "Voice Response System" is the computer and software that the Bank uses
that enables the customer to call and access information from the Bank.
- "Processing Agent" is the third party processing agent that provides
the xxxx payment services on behalf of nFront
TELEPHONE XXXX PAYMENT REQUIREMENTS AND DESCRIPTION
A. The nFront Telephone Xxxx Payment Service enables the Bank's retail
customer to telephone the bank and schedule xxxx payments over the
telephone. The TBP Service is designed to be used primarily by the
Bank's retail customers who have signed up to use to use the nHome
Internet Banking Service, although non-nHome Internet Banking customers
can use the TBP Service under certain conditions.
B. Internet Banking Customers. These customers will set up their payees on
the Internet. These customers can pay bills via the Internet or via the
telephone. The Internet Service and the TBP service access the same
database of information.
C. Non-Internet Banking Customers. If the Bank chooses to offer the TBP
Service to non-Internet Banking customers, the Bank must create
documents that enable the customer to signup for the service and to do
payee addition/maintenance/deletion/cancellation. The Bank will need to
provide these documents to the non-Internet customers. The customer
will need to fill out the documents and mail these documents to the
Processing Agent. The Processing Agent will provide a toll free number
to be used by both the customer and the Bank to address all questions
regarding non-Internet Banking customers' use of telephone xxxx
payment.
D. The Bank MUST have a Voice Response System in place to use this
service. The Bank will be responsible for adding a new option to the
Voice Response System that will dial a phone number provided by the
nFront. This will enable the bank's customer to then have access to the
nFront Telephone Xxxx Payment server. The phone number provided by
nFront will not be dedicated to a particular Bank but will be a series
of telephone lines that are dedicated to nFront's Telephone Xxxx
Payment server.
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E. In order to use the Telephone Xxxx Payment Service, the customer will
need to know their checking account number and password to access the
system. The customer also needs the Payee ID number for the payee(s)
for whom they want to schedule xxxx payments. The customer will be
presented with the following options:
- To make a payment, enter 1
- To set up a future dated payment, enter 2
- To set up a recurring payment, enter 3
- To change personal security code, enter 4
- To exit system, enter 5
F. The transactions an Internet Banking customer enters through the
Telephone Xxxx Payment system will immediately display in the
customer's online Pending Transactions Register.
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