EX-10.N
2
jack_henrycontract.htm
XXXX XXXXX CONTRACT
Exhibit 10(n)
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MASTER
SOFTWARE
LICENSE
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Xxxx Xxxxx &
Associates, Inc.
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MAINTENANCE AND
SERVICES
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AGREEMENT
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XXX OFFICE
ADDRESS: DATE: January 25,
2008
XXXX XXXXX &
ASSOCIATES, INC.
000 XXXXXXX 00 • P.
O. XXX 000
XXXXXX, XX
00000
NAME
AND ADDRESS OF CUSTOMER:
SOUTHSIDE
BANCSHARES, INCORPORATED
0000
X Xxxxxxx
Xxxxx,
XX 00000
This
Master
Software License, Maintenance and Services Agreement (“Agreement”) is entered
into on the date first shown above between Xxxx Xxxxx &
Associates, Inc. (“XXX”), a Delaware corporation with its primary offices
located at 000 Xxxx Xxxxxxx 00, Xxxxxx, Xxxxxxxx 00000 and Southside Bancshares,
Incorporated (“Customer”).
XXX is in the
business of providing software, maintenance support and related
services. This Agreement establishes the master terms and conditions
that will apply to the initial transaction and all subsequent transactions which
XXX and Customer enter into pursuant to this Agreement.
The initial
transaction under this Agreement is identified in the attached
Schedule(s). For this initial transaction, Customer shall pay to XXX
the following fees:
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Description
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License Fees
(LCS)
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Software
Install Fees (PFS)
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Services
Install Fees (PFS)
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Annual
Maintenance Fees (MNT)
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Monthly
Processing Fees (PCS)
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GRAND
TOTAL
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$1,286,775.00
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$569,274.25
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$600.00
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$345,957.50
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$50.00
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Plus
variable charges, if applicable, as identified in Exhibit A
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed and effective
as of the date first above written.
XXX: CUSTOMER:
XXXX XXXXX &
ASSOCIATES,
INC. SOUTHSIDE
BANCSHARES, INCORPORATED
By: /s/ Xxxx
X.
Xxxxxxxxxx By:
/s/ Xxx
Xxxxxx
Printed Name
Xxxx X.
Xxxxxxxxxx Printed
Name Xxx
Xxxxxx
Title: President
Title:
President
Date: February 4, 2008 Date:
1/31/08
ABA#
000000000
Xxxx Xxxxxxx
582500/Xxxxx Xxxxx/Xxxxx Xxxxxxx
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STANDARD TERMS AND
CONDITIONS
(Master Software
License Maintenance and Services Agreement)
DEFINITIONS
The following
terms, as used herein, shall have the following meanings:
“Live
Production Date”
means the date following the Implementation Date, on which Customer signs the
Conversion Verification Document presented by XXX to verify that the Software
has been installed and is available for initial production use by
Customer.
“Agreement” means this Agreement entered
into between XXX and Customer as well as any subsequent fully executed and
countersigned addendums, exhibits and product schedules as may be required under
this Agreement.
“Compliance” means that the Software is
performing in the Operating Environment without Errors in conformance with the
Documentation for the Software. When used to refer to Professional Services, it
shall mean that the Professional Services are in compliance with the
requirements shown under the specific Schedule and any supplemental Statement of
Work executed between XXX and Customer under which those Professional Services
are rendered. When Compliance refers to any customization services provided by
XXX it shall mean that the customization shall comply with the specifications
which Customer requested based on the fully countersigned customization request.
When Compliance is used in regard to Maintenance, it will mean that the Software
complies with the Documentation accompanying the Software programs and conforms
to the applicable federal and state banking laws and regulations then currently
in effect.
“Customer” means Customer and any of
its Affiliates. As used in this Agreement, and any addendums or attachments to
it, Customer may be used interchangeably with Client, Licensee, or the pronoun
“you”.
“Customer
Affiliates” means
those wholly-owned subsidiaries of Customer who are organized directly under
Customer’s regulatory charter and whose income is directly attributed to
Customer for federal reporting purposes. Additional wholly-owned subsidiaries of
Customer who do not meet these criteria may be added to Exhibit B by mutual
agreement between XXX and Customer and will thereafter be considered Affiliates
for the purposes of this Agreement.
“Customer
Location” means
any Customer location(s) in the United States which is owned or leased by
Customer where licensed Software resides or is processed by Licensee’s employees
which is nominated on Attachment “Processing Locations” which is attached
hereto.
“Delivery
Date” means the
date on which the Software is to be delivered to the specified Customer Location
as set forth in the Schedule.
“Destructive
Elements” means
computer code that: (i) is designed to disrupt, disable, harm, or
otherwise impede the operation of the Software or any other software, firmware,
hardware, computer system or network (sometimes referred to as “viruses” or
“worms”); (ii) would disable or impair the Software or any other software,
firmware, hardware, computer systems or networks in any way where such
disablement or impairment is caused by the elapsing of a period of time,
advancement to a particular date or other numeral (sometimes referred to as
“time bombs,” “time locks” or “drop dead” devices); (iii) would permit XXX to
access the Software or any other software, firmware, hardware, computer systems
or networks to cause such disablement or impairment (sometimes referred to as
“traps,” “access codes” or “trap door” devices); or (iv) which contains any
other similar harmful, malicious or hidden procedures, routines or mechanisms
which would cause such programs to cease functioning or to damage or corrupt
data, storage media, programs, equipment or communications or otherwise
interfere with operations.
“Documentation” means, collectively, all
operator and user manuals, training materials, guides, listings, functional and
technical specifications including the hardware platforms which the Software is
designed to operate on and any revisions or additions to such documents relating
to the Software, Maintenance Services or Professional Services or Customizations
provided by XXX to Customer.
“Enhancement”
means a minor change or improvement in the appearance, functionality or system
logic or the Software which does not rise to the level of an
Upgrade.
“Error” means any error, defect or
malfunction in the Software or the Services that: (i) causes the
integrity of the data resident in the Software or Services to be compromised or
corrupted; (ii) causes an unexpected error message or fatal error to occur while
using the Software or Services; (iii) causes the Software or Services to fail to
conform to any of the applicable warranties, including those contained in
Section GEN12 inclusive or (iv) otherwise causes the Software or Services to
fail to be in Compliance.
“Error
Correction” means
a modification or other appropriate fix to the Software or Services that causes
the Software or Services to be in Compliance.
“Escrow
Agent” means the
third party agent of XXX who maintains a copy of the XXX Software source code in
escrow for release to qualifying customers as provided in Section
LCS5.3.
“Escrow
Agreement” means
the agreement that XXX has with the Escrow Agent which will fulfill the
obligations of XXX under Section LCS5.3
“Force
Majeure Event”
means acts or events beyond JHA’s reasonable control, including but not limited
to acts of God, public disaster, fire, terrorism, civil discord, flood, riot,
war, labor strikes/disputes of third parties, judicial orders/decrees,
government laws/regulations, or interruptions of communications, transportation
or electricity.
“Include” and its derivatives means
“including, but not limited to.”
“Implementation
Date” means the
date on which the Software has been implemented, configured, converted, balanced
and updated by XXX and is ready for production in the Operating Environment in
accordance with execution of the Conversion Verification Document. Customer is
not required to receive implementation services from XXX. If Customer fails to
execute the Conversion Verification Document within fifteen (15) days of the
actual Implementation date of the particular Software and does not give XXX
written notice of non-Compliance which specifically states the non-Compliance
within fifteen (15) days of the actual Implementation date the Software shall be
deemed to be accepted without the execution of the Conversion Verification
Document.
“Installation
Date” means the
date on which the unmodified Software has been delivered to
Customer.
“Laws” means all federal or state
laws or regulations applicable to the banking and financial services
sectors.
“License” means the permissive right
of Customer to use the Software of XXX in accordance with the rights granted
under this Agreement.
“License
Fee” means the
fee for the Software License granted hereunder.
“Loss or
Losses” means all
losses, liabilities, damages and claims, and all actual direct costs and
expenses (including reasonable fees, expenses and disbursements of attorneys or
other proceedings of any claim, default or assessment, settlement, judgement,
interest, court costs and penalties) actually paid to a third
party.
“Maintenance
Fee” means the
annual fee paid by Customer to XXX for the Maintenance Services. This fee is
based on a one year term from July 1 to June 30 annually and may be renewed on
an annual basis. This fee may increase as Customer licenses more Software which
requires Maintenance Services.
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“Maintenance
Services” means
the Software maintenance support provided by XXX with respect to the Software
licensed by Customer, as defined in this Agreement. Maintenance
Services include (a) the performance of Error correction activities by JHA’s
customer support organization, and (b) the delivery of periodic Releases and
Updates to Customer, and (c) remote call-in support services for the
Software. These services are based on maintaining Software licensed
to the Customer in compliance. These services are provided on an
annual basis with a beginning date of July 1 and an ending date of June 30
annually. These Maintenance Services are automatically renewable at Customer’s
option.
“Measurement
Period” for
Processing Services means the measurement period over which the system
performance standards for the Processing Services identified in the applicable
Schedule for the Processing Standards shall apply. The adherence of
XXX to these performance standards will be measured on a metric related to the
particular services and the Schedule under which the OutLink Services are
provided will detail the Measurement Period for the OutLink
Services.
“Operating
Environment”
means the hardware platform and any other equipment, configurations, operating
systems, control programs and other elements of the operating environment
(including an internet or internet oriented operating environment) on or in
which XXX has specifically designed the Software.
“Processing
Services” means
those processing services which XXX provides to Customer which are accessed by
Customer by way of Customer’s remote access to a XXX data
center. These services will be provided using XXX Software or
software which XXX has licensed from their respective owners for this purpose.
These services generally comprise certain core financial activities and due to
their nature they are required to be performed on an ongoing basis over a period
of time.
“Personal
Information”
means all information, in any form, provided to XXX, by or on behalf of Customer
or any Customer Affiliate, that alone, or in combination with other information
shall include information in respect of which a duty of confidence or secrecy is
owed to customers or consumers of Customer or any Customer Affiliate (including
“nonpublic personal information” as defined under the Xxxxx-Xxxxx-Xxxxxx Act (15
United States Code (“U.S.C.”) §6801 et seq.).
“Personnel” means an employee of XXX,
Customer or any Customer Affiliates, or a third party entity, as the context
requires.
“PTF” means a Program Temporary
Fix or a quick repair (sometimes called a “fix”) of an Error in the Software
which is distributed to Customer until the next Release of the
Software.
“Release” means a grouping of Error
Corrections and/or Updates usually identified by a unique number and/or letter
or combinations thereof. For example, a Release may be denominated as
“Release 200x.1” where the “200x” refers to the annual version level and the
“.1” refers to the individual Release level.
“Security
Baseline Configuration Settings” means the software
configuration settings recommended by XXX that affect the security of the
Software.
“Services” shall mean the Maintenance
Services (MNT), Processing Services (PCS) and/or Professional Services (PFS), as
appropriate in the context.
“Service
Provider” means
any third party outsourcers, consultants, contractors, disaster recovery
services providers or hosting services providers who perform information
technology services or business services of any other nature for Customer or any
Customer Affiliates and their respective customers or business
partners.
“Professional
Services” means
Software Implementation, conversion, customization, training and other services
which are provided by XXX in relation to deployment of the Software or Services
for Customer’s use.
“Software” means primarily XXX Software
but it also includes the software belonging to third parties which XXX has the
right to re-license, use or otherwise distribute or make available to Customer
under this Agreement. Software is the computer programs and procedure
statements in object code form as more fully described
in the Schedule. The Software will also include Error Corrections, Updates and
Releases upon delivery pursuant to the Maintenance Services provided under this
Agreement.
“Source
Code” means the
source code form of the Software. Software which is installed in Source Code
format will be designated on the Schedule as Source Code. Software distributed
as object code only shall not bear the SC designation. All Third
Party Software shall be delivered in object code format only, unless otherwise
specified on the Schedule.
“Third
Party Software”
means a standalone third party software product which XXX in its capacity as an
authorized reseller or distributor of the product sublicenses to Customer for
its use in conjunction with the Software or Services.
“Updates” means new Releases which are
issued by XXX periodically to its Maintenance Services customers to maintain
compatibility of the Software with new system software releases or to provide
enhancements to existing features and operations within the Software which XXX
provides to all of its current Maintenance Services customers in consideration
of payment of the annual Maintenance Services fee.
“Upgrades” means: (a) new versions of
the Software issued by XXX which include major new features and functionality
for which XXX requires the payment of a separate license fee from its customers
generally; or (b) an expanded use of the Software License to include additional
Affiliates, users, or Software products; or c) a large number of Enhancements
which due to their number and type qualify as an Upgrade.
“Warranty
Period” means the
three (3) month period commencing on the Live Production Date.
GENERAL
GEN1.1 The
Standard Terms and Conditions of this Agreement are divided into six (6)
sections described as General, License, Maintenance Services, Implementation
Services, Professional Services and Processing Services. The General Section
contains those terms which apply to all of the Software and Services provided to
Customer under this Agreement. Each of the remaining Sections further clarifies
the terms under which XXX will provide those items to the Customer. For ease of
reference, the subsections in each area are prefixed with letters indicating its
particular reference. These prefixes may be used interchangeably with the
section under which they are governed. For example all General Area items will
bear the prefix “GEN” for General, License items will bear the prefix “LCS”,
Maintenance Services items will bear the prefix “MNT”, Professional Services
items will bear the prefix “PFS” and Processing Services items will bear the
prefix “PCS”. These prefixes will appear on the particular areas of this
Agreement which reference them as well as on the Schedule which may be governed
by their applicable terms. To the extent that Customer does not contract for any
XXX offerings under any individual section of this Agreement, the specific terms
and conditions of that section shall be deemed dormant until such time that
Customer does contract for a XXX offering governed by it.
GEN1.2 Except
as otherwise expressly set forth in this Agreement, all references to Sections,
Subsections and Exhibits shall be references to the Sections, Subsections and
Exhibits of this Agreement. Any reference to a particular section of
this Agreement shall be deemed to include reference to any and all subsections
thereof.
GEN1.3 This
Agreement may be supplemented with Schedules which will add additional Software
or Services. In the event of a conflict or ambiguity between the terms and
conditions of this Agreement and any Schedule, the terms and conditions of this
Agreement will prevail unless the Schedule expressly states that the terms
contained in it will prevail and the Schedule is signed by both Customer and
XXX. In order to
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overturn the
presumptions of this Agreement in regard to Sections XXX0, XXX00, XXX00, XXX0,
XXX0 and PFS9, the Schedule must be countersigned by JHA’s CEO, President, or
Vice President. If terms in the body of this Agreement conflict, the
term most closely describing the type of transaction giving rise to the issue
will prevail. No handwritten changes made to the face of this Agreement or any
Schedule shall be of any effect. The only acceptable changes to
these Standard Terms and Conditions will be contained in a separate
contract modification which specifically references this Agreement and is fully
executed by XXX and Customer.
GEN2.
ORDERING
PROCEDURES
GEN2.1 Customer
may from time to time order Software and Services from XXX by executing the
applicable Schedule relating to the Software and Services
involved. Each order shall reference this Agreement and contain the
following information applicable to the Software or Services to be
acquired: a description of the Software or Services, quantity, net
prices, applicable fees, requested Delivery Date, ship-to and invoice-to
addresses and tax exemption status (if applicable.) Hardware and certain third
party software may be conveyed under a separate agreement.
GEN2.2 Subsequent
orders are only accepted by XXX when the Schedule has been executed by an
authorized representative of XXX.
GEN2.3 An
order for Professional Services shall include a specification of the scope of
the Professional Services to be performed by XXX. A Product and
Services Schedule or addendum shall contain: (i) a description of the
Software and Services, if any, ordered and related Documentation; (ii) a
description of the scope of license (if applicable); (iii) the License or
Services Fee; (iv) the Customer Location(s) to which the Software shall be
delivered and Services to be performed, if any; and (v) the Delivery
Date.
GEN2.4 Each
subsequent Schedule represents a separate agreement between XXX and the Customer
or the Affiliate that signed the Schedule. Customer shall be solely responsible
for performance and liable for obligations under such Schedule and such entity
shall be deemed to be “Customer” under this Agreement with respect to such
Schedule.
GEN2.5 XXX
primarily provides its own software and services and acts as a reseller of the
hardware necessary to run the XXX software. In some limited circumstances
XXX may offer third party software and services from JHA’s selected business
partners. XXX does not build or create any hardware devices for sale to
third parties. XXX is not a systems integrator and when XXX offers to sell
customer third party software, hardware or services, XXX will notify Customer of
the nature of the software, hardware or services and any particular special
terms and conditions which may flow from the third party. Where possible, XXX
will combine the third party’s requirements for the hardware, software or
services in the Addendum under which the hardware, software, or services are
conveyed to customer. In some circumstances Customer may be required
to enter into an agreement directly with a third party for their software,
hardware, or services. This Agreement is intended to encompass the
software and services which Customer may obtain from XXX.
GEN3. CONFIDENTIALITY
GEN3.1 All
Information communicated by one party to the other party regardless of whether
marked as confidential or not, including the terms and conditions of this
Agreement, whether before the effective date or during the term of this
Agreement, shall be received in strict confidence and shall be used only for the
purposes of this Agreement. Confidential Information shall not be
disclosed by the recipient party, its agents or employees without prior written
consent of the disclosing party. Each party agrees to take all
reasonable precautions to prevent the disclosure to outside parties of such
information, including without limitation, the terms of this Agreement except as
may be necessary by reason of legal, accounting or regulatory requirements
beyond the reasonable control of XXX or Customer, as the case may be provided
that no such standard of care shall be less than the parties use for their own
Confidential Information of the same nature.
GEN3.2 The
receiving party shall be under no obligation with respect to Confidential
Information which (a) was in the public domain prior to the receipt of the
information by the receiving party, or subsequently becomes part of the public
domain by publication or otherwise, except disclosure by or the wrongful act of
the receiving party, its owners, officers, directors, employees, agents or
representatives; (b) was in the lawful possession of the receiving party prior
to its receipt from the disclosing party and was not acquired by the receiving
party directly or indirectly from the disclosing party or any of disclosing
party’s licensees, and the sources of such information had not obtained the
information wrongfully and had no obligations of confidentiality or secrecy with
respect thereto; (c) was independently developed by the receiving
party without access to the Confidential Information; (d) is provided by the
disclosing party to another person or party without being subject to an
obligation of confidentiality by the other person or party with respect to the
information; or (e) is disclosed by the receiving party pursuant to a
government or court order requiring such disclosure, provided that the receiving
party has first notified the disclosing party of its receipt of the government
or court order to disclose the disclosing party’s Confidential Information and
has given the disclosing party an opportunity to seek a protective order
limiting such disclosure without confidentiality obligations. The
receiving party has the burden of proving that the Confidential Information was
subject to one or more of the above listed exceptions.
GEN3.3 If
Customer wishes to reveal any portion of JHA’s Confidential Information to any
third party Provider, Customer and the third party Provider shall first execute
JHA’s standard three party confidentiality agreement prior to revealing the XXX
Confidential Information to the third party provider.
GEN3.4 All
information and materials disclosed to the Customer at JHA’s User Group
conferences shall be treated as JHA’s Confidential
Information. Nothing in this Section shall be interpreted to preclude
or impede Customer’s participation in any User’s Group with respect to the
Software.
GEN3.5 Neither
party shall issue any press release, public endorsement, public announcement or
other public statement arising out of or relating to this Agreement or the
relationship of the parties, without the prior written consent of the other
party.
GEN4. DATA
PRIVACY ACT AND XXXXX-XXXXX-XXXXXX ACT COMPLIANCE
GEN4.1
In accordance with data privacy laws and regulations applicable to this
Agreement, which may include but not be limited to the Xxxxx-Xxxxx-Xxxxxx Act
(“GLBA”) and the Health Insurance Portability and Accountability Act ("HIPAA"),
XXX shall not disclose or permit access to or use of the non-public personal
information of Customer or its consumers made available by Customer to XXX for
any purposes other than those specifically required to fulfill JHA's contractual
obligations with Customer. XXX shall not sell the information regarding
Customer's consumers for any reason. In connection with providing services
to Customer, XXX shall take all commercially reasonable steps to ensure the
privacy and security of Customer's and its consumers' information and protect
against anticipated threats and hazards to the security of such
information. XXX shall take all commercially reasonable steps to prevent
unauthorized access to or use of such information that could result in
substantial harm or inconvenience to Customer or its consumers. XXX has
implemented policies and procedures to ensure the proper disposal of consumer
information in accordance with applicable Federal and State requirements. In the
event any court or regulatory agency seeks to compel disclosure of the
information, XXX shall, if legally permissible, promptly notify Customer of the
disclosure requirement and will cooperate so that Customer may at its
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expense seek to
legally prevent this disclosure of the information.
GEN4.2 XXX
has separately published its data privacy and security compliance commitment to
its customers, which corresponds at a minimum to the provisions of this Section
4 as of the effective date of this Agreement. To the extent that
additional commitments by XXX are reflected in future published versions of this
policy, these additional commitments shall be incorporated as part of this
Agreement without further actions by the parties. In no event shall a
future published data privacy and security compliance statement issued by XXX
lessen or eliminate any of the commitments by XXX stated in this Section
4.
GEN4.3 If
a breach of security results in an unauthorized intrusion into JHA’s systems
which directly and materially affects Customer or its consumers, XXX will take
appropriate measures to stop the intrusion; report on the intrusion to Customer
within a reasonable time after discovery of the intrusion; subsequently report
the corrective action taken by XXX in response to the intrusion; and provide
reasonable assistance to Customer to support any mandatory disclosures about the
intrusion by Customer to its consumers required by law. If XXX has
notified law enforcement agencies about the intrusion, XXX may delay its
notification of the intrusion to Customer until authorized to do so by the law
enforcement agencies.
GEN5. FEES
GEN5.1 Customer
agrees to pay to XXX the fees, payments and expenses set out on the applicable
Schedule(s) regardless of the type of XXX offering that generates the payment
obligation to XXX. Except as otherwise expressly set forth in any
Schedule, all monetary amounts set forth and payable under this Agreement shall
be in United States Dollars. All fees are exclusive of taxes or
duties imposed by a government entity on the sales transaction, and Customer
shall be responsible for paying all such taxes and duties, except for taxes
imposed on JHA’s income.
GEN5.1.1 Unless
otherwise indicated a deposit of 25% of total License Fees is due at execution
of Agreement. 50% of the total License Fees will be paid three
calendar months from the date of this Agreement. The remaining 25%
will be paid nine calendar months from the date of this Agreement.
GEN5.1.2 Unless
otherwise indicated a deposit of 25% of total Install Fees and One Time Fees is
due at execution of Agreement. 30% of the total Install Fees and One
Time Fees will be paid two calendar months from the date of this
Agreement. 30% of the total Install Fees and One Time Fees will be
paid four calendar months from the date of this Agreement. The
remaining 15% will be due upon completion of conversion. All Install Fees, One
Time Fees and Annual Maintenance Fees are due no later than thirty days
following the date of the implementation of the Software.
GEN5.1.3 Processing
Services fees will be billed as incurred on a monthly basis and will be due 30
days from the date of the invoice for the Processing Services. Fees for
Professional Services will be billed as incurred and will be due no later than
thirty days from the date of invoice for the Professional Services.
GEN5.2 JHA's
billing terms for items designated as paper remittances are payable net 30 days
from the date of invoice. XXX reserves the right to cease providing
all Services to Customer if any amount due to XXX by Customer under this
Agreement or any other amount due XXX by Customer is not timely
paid. However, Customer shall not be determined to be in breach of
this Agreement if during the term of this Agreement any fees considered
hereunder are in good faith dispute by XXX and Customer, and Customer pays all
undisputed monies due under such xxxxxxxx to XXX. Customer will pay
XXX a late charge of 1.5% interest per month (18% annually) or the maximum
interest rate allowed by applicable law, whichever is lower, plus all attorney
fees and expenses actually incurred by XXX in collecting any past due fees,
payments or reimbursements of any kind due XXX by Customer. XXX
reserves the right to halt the delivery of any Software, equipment or Services
if Customer is delinquent in the payment of any valid amounts due XXX, except
where such amounts are legitimately in dispute. Customer shall pay in
a timely manner all amounts which are not legitimately in dispute.
GEN5.3 Customer
agrees to pay, upon presentation by XXX of an electronic funds transfer debit
for such amount, the then applicable charges for the Software and Services
covered thereby. Unless specified otherwise, all amounts are due as
provided for under the Agreement under which the Software or Service was
rendered. XXX shall provide an invoice to the Customer for review prior to
initiation of the electronic funds transfer debit. Hardware fees and
annual fees will be invoiced and are payable in advance. Additionally
XXX reserves the right to immediately terminate the License to the Software or
access to any Services under this Agreement and to terminate this Agreement if
any amount due for said Software or Services shall not be paid via ACH within
five (5) days of its original ACH transfer attempt or if any ACH payment due
under this Agreement is reversed without written notice to XXX of said reversal
and JHA’s written acceptance of said reversal.
GEN5.4 In
addition to fees and payments provided for in this Agreement, Customer will
promptly reimburse XXX for all actual, reasonable out-of-pocket expenses
incurred in providing the Software and Services to Customer, including but not
limited to travel, local transportation, lodging and meals of JHA’s Personnel
performing Professional Services at Customer’s site; and telephone, postage and
shipping costs. XXX has established travel policy guidelines which it
requires its employees to abide by under this Agreement. XXX will
make a copy of its travel policy guidelines available to Customer at Customer’s
request.
GEN6. AUTHORITY
GEN6.1 XXX
has (i) all requisite legal and corporate power to execute and deliver this
Agreement and each Schedule; (ii) taken all corporate action necessary for the
authorization, execution and delivery of this Agreement and each Schedule; (iii)
no agreement or understanding with any third party that interferes with or will
interfere with its performance of its obligations under this Agreement and each
Schedule; (iv) obtained and shall maintain all rights, approvals and consents
necessary to perform its obligations and grant all rights and licenses granted
to Customer under this Agreement and each Schedule; and (v) taken all action
required to make this Agreement and each Schedule a legal, valid and binding
obligation of the XXX, enforceable against XXX and XXX Personnel in
accordance with its terms.
GEN6.2 Customer
has (i) all requisite legal and corporate power to execute and deliver this
Agreement and each Schedule; (ii) taken all corporate action necessary for the
authorization, execution and delivery of this Agreement and each Schedule; (iii)
no agreement or understanding with any third party that interferes with or will
interfere with its performance of its obligations under this Agreement and each
Schedule; (iv) obtained and shall maintain all rights, approvals and consents
necessary to perform its obligations and receive all rights and licenses granted
to Customer under this Agreement and each Schedule; and (v) taken all action
required to make this Agreement and each Schedule a legal, valid and binding
obligation of Customer, enforceable against Customer and Customer’s Personnel in
accordance with its terms.
GEN7. FORM
OF DOCUMENTATION
GEN7.1 The
Documentation for Software or Services shall be in electronic format unless
otherwise noted and shall be complete and accurate so as to enable a reasonably
skilled Customer user who has received JHA’s training to effectively use all of
its features and functions without assistance from XXX. The
Documentation delivered to Customer shall be JHA’s
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most current
version applicable to the Software or Services involved.
GEN8. DESTRUCTIVE
ELEMENTS
GEN8.1 The
Software and Services delivered by XXX shall not knowingly contain any
Destructive Elements which have been introduced or incorporated by XXX which XXX
is aware of using then current industry standard evaluation and review
methods. XXX confirms that it utilizes industry standard virus
protection software to avoid the introduction of Destructive Elements in the XXX
Software products, Releases and Processing Services and deliverables provided as
part of Professional Services.
GEN9.1 Each
party covenants that it has not provided, and shall not provide, to any
Personnel of the other party any gift, gratuity, service or other inducement or
favor to influence or reward that party’s Personnel in connection with any
Schedule. By way of example and for the avoidance of doubt, other
than those of di
minimis value, meals, tickets and gifts are considered
inappropriate.
GEN10.
INDEMNIFICATION
GEN10.1 XXX
shall defend, indemnify and hold harmless Customer and Customer Affiliates,
their respective directors, officers, Personnel, successors and assigns against
and from, any and all Losses arising out of, in connection with, resulting from
or based on allegations of, any of the following: (i) a breach or
alleged breach of JHA’s obligations under this Agreement or; (ii) negligent,
willful or reckless acts or omissions, dishonesty or fraud of or by XXX or XXX
Personnel; and (iii) any and all third party claims that the Software or
Services provided hereunder infringe any valid United States copyright, patent,
trademark, trade secret or other proprietary right of any entity or
individual. XXX shall do so whether or not such claim is made in good
faith or was known to Customer at the time that Customer executed the Schedule
or became known to Customer thereafter. XXX shall not be liable for any
infringement claim which arises out of: a) any combination with the XXX Software
or Services with any other non-XXX software or services; or b) any modification
of the Software by Customer or any third party; or c) any corrective Software
which is delivered by XXX to Customer but is not installed or implemented by
Customer; or d) use of the Software or Services not in compliance with its
documentation.
GEN10.2 In
the event that Customer is enjoined, or is otherwise prohibited, from using any
Software or Processing Services as a result of or in connection with any claim
described in clause
(iii) of Subsection GEN10.1, XXX
promptly shall, at its sole expense: (i) procure for Customer and the
Customer Affiliates the right to continue to use the Software or Services; (ii)
modify the Software or Processing Services so that it becomes noninfringing,
without substantially diminishing the form, features, functionality or
performance of the Software or Services; or (iii) replace the Software or
Services with Software or Services that are noninfringing with materially
equivalent form, features, functionality and performance. In the
event that XXX cannot, after using its best efforts to do so within a reasonable
period of time, procure, modify or replace the Software or Services involved
then XXX shall terminate Customer’s right to use the Software or Services,
giving Customer at least ninety (90) days advance written notice of this
termination if legally permitted to do so. Upon termination, XXX
shall provide an immediate refund to Customer which is calculated as
follows:
(a) if the affected Schedule relates
to Software, XXX will refund a prorated amount of the License Fees paid by
Customer based on a three (3) year straight-line depreciation from the Live
Production Date of the Software involved, and the unused amount of the
then-current annual Maintenance Fee paid by Customer for the Software involved;
and
(b) if the affected Schedule relates
to Processing Services, XXX will refund to Customer an amount equal to the
previous twelve (12) months Processing Services fees paid by Customer for the
Processing Services involved.
GEN10.3 With
respect to Professional Services performed at Customer’s location, each party
shall defend, indemnify and hold harmless the other party and its Affiliates,
their respective directors, officers, Personnel, successors and assigns against
and from, any and all Losses that the other party may suffer or incur that arise
out of, are connected with or result from bodily injuries (including death, no
matter when death occurs) or damages to property that are caused by, arise out
of, are connected with or result from the negligence or willful misconduct of
its own Personnel during the course of the conduct of Professional Services at
Customer’s location.
GEN10.4 If
a notice of commencement or threatened commencement of a claim or cause of
action is received by a party entitled to indemnification under this section,
such party (the “Indemnified Party”) shall provide the party that is obligated
to provide indemnification under this section (the “Indemnifying Party”)
with: (i) prompt written notice of each claim received; (ii) control
over the defense and settlement of the claim; and (iii) full information and
reasonable assistance to settle or defend the claim. Notwithstanding
the foregoing, the Indemnifying Party shall not settle the claim without the
Indemnified Party’s prior written approval if such settlement requires the
Indemnified Party to take any action, refrain from taking any action or admit
any liability. The Indemnified Party shall be entitled to participate
in the defense of any such claim at its own expense.
GEN11. WARRANTIES
GEN11.1 XXX
Software: XXX warrants that unmodified XXX Software will operate in
accordance with the accompanying Documentation in effect at the time of
delivery. Under this warranty, XXX will correct any Errors in the unmodified XXX
Software at no extra charge to Customer. These warranties are valid
for a period of ninety (90) days commencing from the Live Production
Date.
GEN11.2 XXX
Processing Services: XXX warrants that unmodified XXX Processing
Services will operate in accordance with the accompanying Documentation in
effect at the time of delivery. Under this warranty, XXX will correct any Errors
in the unmodified XXX Processing Services at no extra charge to
Customer. These warranties are valid for a period of ninety (90) days
commencing from the Live Production Date.
GEN11.3 Maintenance
Services: XXX warrants that the Maintenance Services will be provided
to Customer in a timely and professional manner consistent with software
industry standards for these services.
GEN
11.4 Professional
Services: XXX warrants that the Professional Services (a) will be
provided to Customer in a timely and professional manner consistent with
software industry standards for these services, and (b) will conform to the
written specification of the Professional Services contained in the
Schedule. These warranties are valid for a period of thirty (30) days
commencing from the completion date of the Professional Services
project. If Customer reports any Errors in the Professional Services
to XXX within this warranty period, XXX shall re-perform the affected
Professional Services at no additional charge to Customer. Upon
completion of this second delivery of the Professional Services, Customer shall
have an additional thirty day warranty period to confirm that the Professional
Services conform to the warranty stated above. If the second delivery
of Professional Services does not correct the Errors in the Professional
Services, then the affected Schedule may be terminated by either
party and XXX shall refund to Customer all fees and reimbursable expenses
previously paid by Customer to XXX for the defective Professional Services under
the affected Schedule.
GEN11.5 The
XXX Software furnished hereunder are free and clear of all liens and
encumbrances, and XXX has full power and authority with respect to the Software
to license the Software to Customer without the consent of any other person, or
in the event such is required XXX has obtained said consent.
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GEN11.6 XXX
makes no separate warranties for third party Software licensed by Customer under
this Agreement. Any warranties provided by the third party Software owner in its
standard software end-user license agreement for the Third Party Software
product shall exclusively apply to the product. XXX shall pass through to
Customer for Customer’s benefit all end-user software warranties that the Third
Party Software owner provides directly to XXX.
GEN11.7 THESE
WARRANTIES ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL XXX BE LIABLE FOR
INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.
GEN12. LIMITATION
OF LIABILITY
GEN12.1 Neither
party shall be liable to the other party or any other person, firm or company,
for failure to fulfill its obligations hereunder due to the occurrence of a
Force Majeure Event. Upon the occurrence of such an event, the
affected party shall apply all reasonable steps within its control to mitigate
the effect of the event upon its performance of this Agreement, and the affected
party shall resume its full performance of this Agreement as soon as reasonably
practicable once the event has passed.
GEN12.2 Except
for breaches under LCS 4.1 and LCS 4.2, neither party shall be liable for any
incidental, consequential, indirect, punitive or special damages under this
Agreement, even if that party was aware of the possibility that these damages
could occur.
GEN12.3 Any
liability of XXX for any loss, damage, indemnity or cost hereunder shall be
limited to actual direct damages incurred by Customer, subject to the specific
limitation of recoverable actual direct damages identified in each section of
the Standard Terms and Conditions, but in no event shall any amount of the
liability include any indirect, consequential, punitive or special damages
incurred by Customer. XXX shall not be liable for any loss which is
settled or compromised by Customer without prior written consent of XXX. At the
request of XXX, Customer shall transfer and assign to XXX all rights and
remedies of Customer with respect to any claim which is ultimately paid by
XXX.
GEN13. MISCELLANEOUS
GEN13.1 Any
notices under this Agreement shall be written and shall be deemed delivered when
actually received, or five (5) days after they are deposited with a certified
national delivery carrier with delivery confirmation or the United States Postal
Service, certified mail return receipt requested when addressed to the other
party at its above address, which may be changed by written
notice. A copy of any notice of breach or termination of this
Agreement or any individual Schedule given by Customer to XXX shall be delivered
to the attention of JHA’s Legal Department at the same address. For
convenience, the parties may correspond via email at addresses mutually
designated from time to time by the parties.
GEN13.2 No
action arising out of this Agreement may be brought by Customer or XXX more than
two (2) years after the cause of action has accrued and the injured party knows
or should have reasonably known of the accrual.
GEN13.3 This
Agreement supersedes all prior license or use agreements for XXX Software and
Services, if any, and contains the entire agreement between the parties with
respect to the transactions contained herein. This Agreement shall be
modified or altered only by a written instrument signed by authorized
representatives of all parties. For avoidance of doubt, an authorized
representative of XXX shall be a corporate officer of XXX. The
Schedules attached to this Agreement and referenced herein are a part of this
Agreement.
GEN13.4 The
headings of each Section herein are provided only for convenience and shall not
be deemed controlling.
GEN13.5 This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective assigns and successors.
GEN13.6 This
Agreement shall not be transferable or assignable by Customer without prior
written consent by XXX. However, Customer may assign its rights and
obligations under this Agreement by written document, to which XXX is a signing
party, to any holding company which becomes a majority stockholder or parent
company of Customer by voluntary action and with the written approval of
Customer and its stockholders. In this event, both Customer and the
assignee shall be responsible and liable to XXX for the performance of the
obligations and duties of Customer pursuant to this Agreement.
GEN13.7 This
Agreement shall be governed by, construed and enforced under, and subject to the
laws of the State of Missouri, without reference to its conflict of laws
provisions. The application of the United Nations Convention on
Contracts in the International Sale of Goods is expressly excluded from this
Agreement. If any of the provisions of this Agreement are invalid
under any applicable statute or rule of law, they are, to that extent, deemed
omitted. Such omission does not change the intent or binding nature
of any or all of the rest of this Agreement.
GEN13.8 XXX
will not be responsible for any data backups or compilations while they are in
transit regardless of how they are transported and regardless of at whose
request they are transported. JHA’s sole responsibility for data backups or
compilations sent by XXX shall be to reasonably package any such items in
accordance with industry standards, deliver such items to a reputable common
carrier and to pay the common carrier for any delivery charges for the
package.
GEN13.9 This
section shall only apply in the sole
event that Customer is not headquartered in the United States of America or in the event that
a cause of action directly relates to XXX Software or Services rendered outside
of the United States of America. In that event the parties agree that
all courts of the State of Missouri, USA, shall have jurisdiction over the
subject matter and over the parties, and venue in any suit, claim, proceeding,
dispute or disagreement arising from or relating in any way to this
Agreement. Customer hereby agrees that by entering into this
Agreement it specifically consents to said jurisdiction and venue of all courts
of the State of Missouri, USA, hereby waives notice and service of process, and
further agrees that valid service of process in any Missouri court proceeding is
confirmed seven (7) days after notice thereof is sent to Customer at its address
contained herein via United States Postal Service Registered
Mail. Customer also specifically agrees that any final judgment
entered against Customer may be registered and enforced in TX or any other foreign country
or jurisdiction as though such final judgment was rendered by the courts or
other legal process of that country or jurisdiction.
GEN13.10 Two
(2) duplicate originals of this Agreement are executed with each party retaining
one (1) original.
GEN13.11 Neither
party nor any of their Affiliates, nor any institutions processed by
Customer, will solicit except through publicly disseminated advertisements, in
any capacity, any personnel of the other party or any of its affiliated
companies within one (1) year of the termination of their employment with the
other party or any of their affiliated companies, unless the party consents in
writing.
LICENSE
LCS1. SOFTWARE
DEFINITION
LCS1.1 In
this Agreement, “Software” shall mean only the computer application programs,
manuals, specifications, other electronic documentation or services itemized in
Exhibit A, together with all future additions, releases, modifications and
customization furnished or performed by XXX, in any printed, machine readable or
other form, including but not limited to listings, manuals, and magnetic media.
All Software will be in
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compliance on the
Implementation Date. Customer may receive customizations from XXX under a
separate short term services addendum to this Agreement for JHA’s then current
fees for such Services. Future additions and releases are available pursuant to
the terms of the Customer’s receipt of maintenance services from
XXX.
LCS2.
LICENSE
RESTRICTIONS
LCS2.1 XXX
grants Customer a license to the Software named on Exhibit A of this Agreement.
The License granted herein is restricted as follows:
LCS2.2 The
Software will be used only to process data of Customer and the Affiliates of
Customer listed in Exhibit B hereto, in one Operating Environment, in one data
library on one production computer operated only by Customer’s employees or the
employees of such Affiliates. Customer shall use the Software only at the site
locations of Customer or the institutions that are described in Exhibit
B. Some Software products may have slightly different limitations on
the foregoing conditions and to the extent that these exist they will be
specifically named on the Schedule under which they are licensed to
Customer.
LCS2.3 Additional
License fees for processing data for additional institutions, other than those
listed on Exhibit B, for processing in additional data libraries, for processing
on more than one machine, and for processing acquisitions by any of
the institutions listed on Exhibit B, on XXX Software as described in
Exhibit A will be determined by a Schedule to this Agreement. In the
event that the Customer in this Agreement is a holding company or any other
entity who will be using the Software to process any other financial
institution, the other financial institution must sign a performance guarantee
on terms acceptable to XXX verifying and attesting to its willingness to uphold
and abide by this Agreement as if it were the Customer.
LCS2.4 The
License and the Software may not be assigned, sublicensed, or otherwise
transferred or copied in any manner by Customer without prior written consent
from XXX.
LCS2.5 Customer
shall not remove or alter proprietary notices of XXX or its third party
licensors on any of the materials associated with the Software.
LCS2.6 Customer
further agrees that prior to providing any processing services to any other
Affiliate or financial institution using the Software, Customer will require the
other Affiliate or financial institution to sign JHA's standard performance
guarantee regarding use of and access to the Software. Off-site
testing and/or disaster processing by a Service Provider is permitted provided
the Service Provider has signed JHA’s standard confidentiality agreement, and
XXX is promptly notified by Customer. In the event that Customer is a holding
company or any other business organization who is not a chartered financial
institution under federal and or state laws Customer will be bound by the terms
of a Performance Agreement which will be attached to this Agreement as Exhibit C
as applicable.
LCS2.7 Customer
also covenants and warrants to XXX that all other financial institutions being
processed and off-site test/disaster facilities will conform to, abide by and be
governed and bound by this License Agreement as though they were the
Customer. Customer accepts full responsibility and liability to XXX
for any violation or breach of this License Agreement by any other financial
institution being processed by Customer or any off-site test/disaster facility
used by Customer. If Customer or any other financial institution
being processed by Customer or off-site test/disaster facility violates or
breaches this or any other written agreement it has with XXX or any of its
subsidiaries, and such violation or breach is not corrected within thirty (30)
days after Customer receives written notice thereof from XXX, XXX may terminate
Customer's license to use the Software, Customer will cease using the Software,
and will return the Software to XXX.
LCS2.8 Certain
Software which is licensed to Customer under this Agreement may be used only in
conjunction with designated Services. This restricted Software will
be designated with the legend “For use with XXX services only”. If
Customer ceases using this restricted Software with the required Services or
attempts to use the Software with any third party’s services without JHA’s
express written consent to do so, Customer’s License for the restricted Software
shall terminate immediately and Customer shall return the restricted Software to
XXX without retaining any copies. Nothing contained in this Section
LCS 2.8 shall be interpreted as requiring Customer to maintain XXX Maintenance
Services on any XXX Software.
LCS3. TERM
OF LICENSE
LCS3.1 The
License granted to Customer to use the Software described in Exhibit A in the
manner provided in Section LCS2 above, shall be in effect for the period of time
specified in the Schedule under which the Software was licensed, beginning upon
the Installation Date. Unless otherwise specified the default term for any
License shall be for 25 years. Customer hereby agrees
that Customer's use of the Software prior to the beginning of the term of this
Agreement will be bound by all of the provisions and covenants of this
Agreement. Customer is not required to maintain any Maintenance Services with
XXX. If Customer ceases to use the Software in a production environment or
deconverts from the Software to move to the software of another provider, the
grant of license to the XXX Software shall automatically terminate and Customer
shall return to XXX all of the affected Software without retaining any copies of
the Software.
LCS3.2
Any new Software
added to an original Licensed Software Schedule will be in effect for the
remainder of the then-current term of the original Schedule, unless otherwise
indicated on the supplemental Schedule covering the new Software.
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LCS4.
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TRADE
SECRETS AND PROPRIETARY PRODUCTS
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LCS4.1 Customer
hereby acknowledges that the Software provided by XXX and/or its third party
licensors under this Agreement is a trade secret of XXX and/or its third party
licensors, and as such is protected by civil and criminal law, is very valuable
to XXX and/or its third party licensors, and that its use must be carefully and
continuously controlled. Customer shall use the highest standard of
diligence to ensure the confidentiality of the Software and shall prohibit the
unauthorized access to, use or duplication of any of the
Software. Customer shall keep all machine-readable Software in a
secure place which is as secure as Customer provides for its most confidential
materials. Customer will not cause, permit nor allow the Software or
materials provided by XXX and/or its third party licensors to be copied,
duplicated, transcribed, reverse engineered, sold to, revealed to, or used by
any other person, firm or company without prior written consent of XXX or its
third party licensors (as applicable). Customer agrees to notify XXX
immediately of the unauthorized possession, use or knowledge of any item
supplied under this Agreement by any person or organization not authorized by
this Agreement to have such possession, use or knowledge. Customer
will promptly furnish XXX full details of such possession, use or knowledge, and
will cooperate fully with XXX in any litigation against third parties deemed
necessary by XXX to protect its proprietary rights. Customer's
compliance with the above shall not be construed in any way as a waiver of JHA's
and/or its third party licensors right to recover damages or obtain other relief
against Customer for its negligent or intentional harm to JHA's and/or its third
party licensors proprietary rights or for breach of contractual
rights. If Customer attempts or allows others to attempt to use,
copy, duplicate, transcribe or convey the items supplied by XXX and/or its third
party licensors pursuant to this Agreement, in a manner contrary to the terms of
this Agreement or in derogation of JHA's and/or its third party licensors
proprietary rights, whether these rights are explicitly herein stated,
determined by law, or otherwise, XXX and/or its third party licensors shall
have, in addition to any
8
other remedies
available to it at law or equity, the right to injunctive relief enjoining such
actions, Customer hereby acknowledges that irreparable harm will occur to XXX
and/or its third party licensors and that other remedies are
inadequate.
LCS4.2 All
Software furnished now or hereafter by XXX to Customer shall be and remain the
sole property of XXX and its licensors, subject to the License rights of the
Customer as defined in this Agreement. Any derivative works of the Software or
Services of XXX shall be and shall remain the property of XXX regardless of who
creates the derivative work. This Section will survive expiration or
termination of this Agreement.
LCS5. BUSINESS
TERMINATION
LCS5.1 At
JHA's option, all of Customer's License rights under this Agreement shall
terminate, and the Software shall be returned to XXX if the ownership of
Customer or any of its subsidiaries who use or benefit from the Software,
changes materially by reason of voluntary or involuntary bankruptcy,
receivership, conservatorship, custodianship, assignment for benefit of
creditors, seizure of assets, liquidation, dissolution, ceasing to do business,
or action by State or Federal authorities which would divest control from the
present ownership of Customer.
LCS5.2 In
the event XXX ceases to do business, the successor to JHA's assets will be bound
by this Agreement the same as XXX and Customer may continue to use the Software
under all the terms and conditions of this Agreement. If there is no
successor to JHA's assets, the Software shall become the non-exclusive
proprietary product of Customer subject to all of the confidentiality
restrictions described in Section GEN3 above; except that Customer may reveal
Software and/or materials to third parties for the sole purpose of maintenance
and customization of the Software for the sole use of Customer, provided said
third parties have signed similar written confidentiality
restrictions.
LCS5.3 Software
which has Source Code provided with it as a part of the License shall not have a
separate Escrow Agreement. For all XXX Software which Source Code is
not provided as part of the standard Software deliverables, XXX shall place the
XXX Software into escrow with the Escrow Agent. XXX shall enter into and
maintain an Escrow Agreement with the Escrow Agent which will provide for the
Escrow Agent to release to Customer the source code for the XXX Software in the
event that XXX ceases to do business pursuant to LCS5.1.
LCS5.4 XXX
will provide reasonable assistance to Customer for establishing Customer’s
participation in any source code escrow arrangement offered by third party
Software owners for their third party Software products. All
contractual participation in the third party Software source code escrow
arrangement shall be directly transacted between Customer and the third party
Software owner and its source code escrow agent.
LCS6. LIMITATION
OF LIABILITY
LCS6.1 The
maximum amount of JHA’s aggregate liability for actual direct damages
recoverable by Customer pursuant to Subsection GEN12.3 with respect to a
Software product licensed by Customer from XXX shall be equal to the License fee
paid by Customer to XXX for the Software product involved.
MAINTENANCE
MNT1. TERM
OF MAINTENANCE SERVICES
MNT1.1 The
original term of the Maintenance Services provided under this
Agreement for a Software product shall run from the Implementation Date of the
Software to the next following 1st day of July. The initial
Maintenance Fee is prorated during the original term of the Maintenance
Services. Thereafter, the term of the Maintenance Services automatically renews
for successive terms of twelve (12) months each, unless either XXX or Customer
gives written non-renewal notice to the other party thirty (30) or more days
before the end of a term. Customer is not required to take from XXX
and XXX is not required to offer to Customer any Maintenance Services except as
mutually agreed to in writing by Customer and XXX. The
full Maintenance Fees are due prior to the provision of Maintenance
Services to Customer and are non-refundable unless Customer terminates the
license to the Software or the Maintenance Services due solely to the
uncorrected material breach of the Software license or the Maintenance Services.
XXX may review and change the Maintenance Fee for any renewal term, but must
notify Customer sixty (60) or more days before the end of any
term. If no such change is made, Customer will pay XXX an annual
advance fee on July 1 of each renewal term, in the same amount as the previous
Maintenance Fee for the last expired term.
MNT2. MAINTENANCE
AND SUPPORT
MNT2.1 Customer,
at its initiation, will provide XXX with remote dial up communication access for
support. During the term of this Agreement, XXX will provide Customer
the following maintenance and support for the Software:
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(a)
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Modified or
new Software programs required by a change in Federal or State banking
laws (Laws), within a reasonable time after Customer gives XXX written
notice of such change. XXX reserves the right to charge a
premium for any newly imposed Federal or State Law which requires a major
redesign of the XXX Software logic.
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(b)
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Updates and
enhancements of existing Software programs on the same terms on which they
are offered by XXX to all licensed users of
same.
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(c)
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Technical
support, via telephone, for questions or problems with the use of the
Software.
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(d)
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Correct any
Errors which prevent normal use of the Software in accordance with the
documentation, upon prompt written notice to XXX by Customer and
reasonable access to Customer's
computer.
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(e)
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XXX will keep
a copy of Customer's program library, including all updates made by XXX,
and authorized program changes made by Customer (which Customer will
promptly furnish XXX). If Customer's program library is
destroyed, XXX will furnish Customer a copy of Customer's program library
then in JHA's possession without charge, however, any XXX assistance
requested will be paid for by Customer at JHA's then current
rate.
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(f)
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XXX will
maintain the Documentation for the Software so that it is current and
accurately describes the features and functionality of the
Software.
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(g)
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XXX shall
assure that Releases and PTF(s) provided by XXX are free from Destructive
Elements of which XXX is aware of using then current industry standard
evaluation and review methods.
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MNT3.
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EXCEPTIONS
TO MAINTENANCE SERVICES
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MNT3.1 XXX
will not furnish Customer Maintenance Services for any Errors caused or
contributed to by the following:
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(a)
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a software
program that was not originally provided by XXX,
or
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(b)
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an
unauthorized alteration or revision to the XXX Software,
or
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(c)
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Errors that
were previously corrected by XXX, delivered to Customer, but not installed
by Customer, or
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(d)
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any problems
with data on tape, disk or diskettes which have been caused by defects in
hardware manufacturers programming or media,
or
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(e)
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failure of
Customer to load hardware manufacturers/software
manufacturers operational/system software new Releases and/or
(PTFs) as specified by XXX, or
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(f)
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Errors which
are the result of improper operator handling or
use.
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(g)
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Under this
Agreement XXX will not provide retrofitting, reintegration, and recoding
of any customization(s) which have
been made to the Software in order for the customizations to work with any
then current release version of the Software. If Customer
desires to have such Services performed, XXX will arrange to contract for
such Services under a separate Schedule for JHA's then current fees for
such Services.
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(h)
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XXX shall not
be required to provide Maintenance Services under this Agreement for any
version of the Software which is not within two (2) Release versions
(regardless of whether whole or incremental) of the then most current
version of the Software.
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(i)
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A major
redesign of the XXX Software required by a change in Federal or State law
to the extent that an Upgrade of the XXX Software is
required.
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MNT4. MAINTENANCE
FEES
MNT4.1 Customer
will pay XXX the Maintenance Fee for the Software as designated on the
applicable Schedule under which the Software was licensed to
Customer. All Maintenance Fees are payable in advance prior to the
rendering of Maintenance Services. If Customer has not installed an adequate
uninterruptible power supply (UPS) for its computer which meets JHA’s required
minimum specification for the UPS, XXX may add an annual Maintenance Fee
surcharge of $2,400.
MNT4.2 XXX
may refuse to furnish Maintenance to Customer if any fees or payments of any
kind due XXX from Customer are delinquent and Customer fails or refuses to cure
any such delinquency within thirty (30) days after written notice from XXX, or
if Customer is in breach or default with respect to any written agreement with
XXX. However, Customer shall not be determined to be in breach of
this Agreement if during the term of this Agreement any fees considered
hereunder are in good faith dispute by XXX and Customer, and Customer pays all
undisputed monies due under such xxxxxxxx to XXX and pays the disputed portion
to a third-party escrow agent.
MNT4.3 The
annual Maintenance Fee will automatically be increased in the event of a License
Upgrade, any increase in the metric(s) of Customer on which the maintenance fee
of the Maintenance Services are based, and if and when Customer contracts for
additional Software products, Software customization, processing on another
computer, processing in another data library, processing of additional financial
institutions, or a change in Laws which imposes additional compliance burdens on
XXX.
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MNT5.
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INSTITUTIONS
COVERED BY THIS AGREEMENT
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MNT5.1 The
Maintenance Services are provided only for Customer and its Affiliates who are
named on Exhibit B. Additional Maintenance Fees for providing
Maintenance Services to institutions other than those listed on Exhibit B will
be as set forth in a supplemental Schedule.
MNT6. LIMITATION
OF LIABILITY
MNT6.1 The
maximum amount of JHA’s aggregate liability for actual direct damages
recoverable by Customer pursuant to Subsection GEN12.3 with respect to
Maintenance Services shall be equal to the then-current annual Maintenance
Services fee paid by Customer to XXX for the Software product(s)
involved.
PROCESSING
SERVICES
PCS1. DESCRIPTION
OF SERVICES
PCS1.1 By
executing a Processing Services Schedule to this Agreement, Customer contracts
for and XXX agrees to furnish, Processing Services enumerated in the
Schedule. Customer and XXX shall mutually develop a detailed plan for
the Implementation and conversion of Customer to the Processing
Services.
PCS1.2 The
parties may add new Processing Services to the scope of an existing Processing
Services Schedule by executing a supplemental Schedule.
|
PCS2.
|
TERM
AND TERMINATION OF PROCESSING
SERVICES
|
PCS2.1 The
original term of the Processing Services provided under this Agreement shall be
for the period designated in the Schedule. Unless otherwise specified the
default term of the Processing Services shall be deemed to be for six (6) years
from the sooner of the date that the Processing Services are first provided or
240 days following the date of document under which the Processing Services are
contracted for between Customer and XXX. Each Schedule for the
Processing Services will automatically renew for one (1) year terms each at the
then current XXX fees for such Processing Services, unless a different renewal
term period is specified in the Schedule. Either party may avoid
automatic renewal of the Schedule by giving written notice of non-renewal to the
other party at least ninety (90) days in advance of the renewal
date.
PCS2.2 Any
new Processing Services added to an original Processing Services Schedule will
be in effect for the remainder of the then-current term of the original
Schedule, unless otherwise indicated on the supplemental Schedule covering the
new Processing Services.
PCS2.3 Either
party may terminate a Processing Services Schedule for cause in the event that
the other party does not cure a material breach of this Agreement or the
Processing Services Schedule within thirty (30) days after receiving written
notice of the breach from the other party. If Customer terminates the
Processing Services Schedule for cause as provided above, the early termination
fees identified in Subsection PCS2.5 below shall not apply.
PCS2.4 Upon
termination or expiration of a Processing Services Schedule, Customer shall pay
XXX all direct expenses incurred by XXX in turning over to Customer all of
Customer’s data and other information maintained by XXX for
Customer. These expenses shall include, but shall not be limited to,
charges for computer run time and programming requirements in accordance
with XXX published
rate schedules in effect at that time.
PCS2.5 Customer
may terminate a Processing Services Schedule or individual Processing Services
on a Schedule without cause prior to the end of the then-current term of the
Schedule by giving XXX at least ninety (90) days prior written notice of the
termination. Customer will remain liable to pay for the affected
Processing Services through the effective date of the termination. In
addition, Customer will be liable to XXX for payment of a lump sum early
termination fee equal to the average monthly billing, exclusive of pass through
costs including, but not limited to, data lines, postage, Federal Reserve
charges, etc., for the affected Processing Services over the twelve (12) month
period preceding the date of termination notice from Customer, multiplied by the
number of months and any portion of a month remaining in the then-current term
for the affected Processing Services
PCS2.6 If
after executing a Processing Services Schedule Customer fails to convert to any
of the Processing Services shown in the Schedule for any reason other than as a
result of JHA’s uncured material breach of this Agreement as provided in
Subsection PCS2.3 above, then Customer shall be liable to XXX for an amount
equal to 70% of the fees detailed in the Processing Services Schedule for the
affected Processing Services, multiplied by the number of months in the then
current term of the Processing Services Schedule.
PCS2.7 In
the event that any entity assumes the deposit liabilities of Customer, such
entity will automatically assume the obligations and liabilities of Customer
hereunder for the remaining contract term.
PCS2.8 Upon
receipt of notice of Customer’s intention to deconvert from JHA’s Processing
Services, the agreement termination and deconversion fees listed above shall
become immediately due and payable. Customer shall pay these fees
within thirty days after XXX has billed Customer for them. XXX
10
reserves the right
to cease providing all Processing Services to Customer if these fees are not
timely paid to XXX.
PCS3. PROCESSING
SERVICES FEES
PCS3.1 Except
as provided below, the price of the Processing Services fees shown in a
Processing Services Schedule will be fixed and remain in effect throughout the
term of the Schedule. At the end of each twelve (12) month period
during the term of the Schedule, XXX may increase any Processing Services fees
from the then-current price by a percentage which is the greater of (a) five
percent (5%) or (b) the percentage increase over the prior twelve (12) month
period in the “Consumer Price Index - Seasonally Adjusted US City Average for
All Items for all Urban Consumers (1982-84 = 100)” published monthly in the
“Monthly Labor Review” of the Bureau of Labor Statistics of the United States
Department of Labor or, should that index cease to be published, the most
comparable index published on a regular basis by the US
Government. The foregoing limitation shall not apply to increases of
third party fees identified in the Schedule which result from increases charged
by the third party to XXX or due to a change in law or regulation which
increases JHA’s processing burden as established under the affected
Schedule. XXX will provide a ninety (90) day advance written notice
to Customer of any price increases before the increased fees go into
effect.
PCS4. USE
OF THIRD PARTY PROCESSORS
PCS4.1 During
the term of the Processing Services Schedule, Customer shall not engage any
third party processor other than XXX to provide the Processing Services to
Customer and shall not perform the Processing Services itself, provided that XXX
agrees to provide Processing Services for the geographic area and volume that
Customer requires.
PCS5.1 All
Software and other intellectual property used by XXX to provide the Processing
Services are and shall remain the sole property of XXX and its
licensors. Customer’s right to utilize the features and functions of
the Software and intellectual property provided by XXX as part of the Processing
Services is expressly limited to Customer’s access and use in conjunction with
and as part of the Processing Services.
PCS5.2 All
Customer data provided or utilized by Customer in conjunction with its use of
the Processing Services shall be and remain the sole property of Customer and
its consumers and licensors.
PCS5.3 All
property described in Subsections PCS5.1 and PCS5.2 above shall be the
Confidential Information of the respective owning party. If Customer
is required by its auditors or regulatory examiners to provide access to JHA’s
property described in PCS5.1 above for the purpose of conducting an audit or
examination of Customer neither Customer’s auditors nor regulatory examiners
shall be required to sign a confidentiality agreement with XXX as a condition to
receive this access, so long as the auditors and regulatory examiners do not
copy or remove the XXX property from Customer’s location. Customer
shall immediately notify XXX if any auditor or regulatory examiner violates the
foregoing condition.
PCS5.4 In
the event that the Processing Services or the XXX property described in
Subsection PCS5.1 above infringes the intellectual property rights of a third
party, the provisions of Subsection GEN10.2(b) above shall apply to this
infringement.
PCS6. TRANSPORTATION
OF DATA
PCS6.1 If
the Processing Services Schedule includes Proof of Deposit, Image Capture, or
MICR recognition Processing Services, the following section shall apply
regarding the transportation of the items to be so serviced.
PCS6.2 The
parties acknowledge that reliable transportation of Customer’s input data and
its processed work is necessary for XXX to perform in accordance with the
Agreement. Accordingly, Customer may either provide its own
transportation of both the input data and processed work or it may elect to
authorize XXX to contract for an authorized carrier to provide the
transportation services and/or utilize JHA’s own or its agent’s vehicles to
transport Customer’s input data and processed work for a fee as shown in the
Schedule.
PCS6.3 In
the event Customer elects to authorize XXX to provide the transportation
services and XXX elects to contract for a carrier to provide the necessary
transportation services, such services will be rendered under the terms and
conditions of a contract between XXX and the carrier or courier which such
contract shall be made a part hereof by reference. XXX reserves the
right to change carrier or couriers from time to time during the term of this
Agreement. Customer has the right to obtain from XXX a copy of the
contract which is in effect upon written request to XXX. Customer
agrees that it is a third- party beneficiary of the contract between XXX and the
carrier or courier and any other which XXX may elect to become a party to in the
fulfillment of the terms of this Agreement. As such, Customer shall
be bound by and subject to all terms and conditions of these courier contracts,
including, but not by way of limitation, any limitation of liability
provisions. It is the intent of the parties that JHA’s liability to
Customer or third parties for losses in transit, if any, shall be the same as
the liability of the carrier to XXX under its Agreement.
PCS6.4 In
the event XXX elects to utilize its own or its agent’s vehicles to render the
transportation services necessary for the performance of this Agreement, then
the parties agree to be bound by a compensation schedule for such services,
which shall be mutually agreed upon. Accordingly the same limitation
of liability provisions as provided in standard courier contracts or such
additional agreements as may be required by XXX to perform such courier services
shall apply whether any claim is by XXX and/or Customer against the authorized
carrier or Customer
against XXX utilizing its own or its agent’s vehicles.
PCS7. EXAMINATION
PCS7.1 The
records maintained by XXX for Customer shall be subject to examination by those
Federal or State agencies having jurisdiction over Customer to the same extent
that such records would be subject to examination were they maintained and
produced by Customer on its own premises and XXX is authorized to provide the
representatives of such agencies access to such records. Reasonable
expenses incurred by XXX on Customer’s behalf during the course of such
examination may, at JHA’s sole discretion, be charged to the
Customer. XXX will provide an accounting of all such
expenses.
PCS7.2 The
annual financial statements of XXX are currently available to Customer and to
its examiners from public sources, including the Securities and Exchange
Commission’s public web site (xxx.xxx.xxx). If
at any time such information is no longer publicly available, then XXX will
provide copies of its most recent annual financial statements to Customer upon
request at no expense except for the reasonable expense of reproducing and
mailing copies of requested financial statements.
PCS8. SAS-70
AUDITS
PCS8.1 XXX
shall cause to be performed a SAS-70 Type II audit of its Processing Services
centers. A copy of the most recently completed audit of the data
center hosting the Processing Services will be made available via access on
JHA’s customer website.
PCS9.
REGULATORY COMPLIANCE
In addition to the
provisions of Section GEN4. XXXXX-XXXXX-XXXXXX ACT COMPLIANCE, the following
additional provisions shall apply for Processing Services:
PCS9.1 To
facilitate Processing Services provided by XXX to Customer and secure related
telecommunications, Customer grants to XXX full and exclusive rights to remotely
control those computer and telecommunications routers associated with the data
processing services, even though owned by Customer and located in Customer’s
facilities. Such controls include, but are
11
not limited to
configuration, testing, implementation, logical security, modification and
troubleshooting.
PCS9.2 During
the term of the Processing Services, XXX assumes responsibility for such
controls. All controls will be returned to Customer upon termination
of the Processing Services.
PCS9.3 Customer
will be responsible for maintaining control over the physical security and
operating environment of the router, including placement of the router where
physical access is limited to authorized persons only and ensuring that adequate
cooling and protection from the elements, as defined in the router’s operating
specifications, is provided. Additionally, each router should have
the following statement posted in close proximity and clear
view: "UNAUTHORIZED ACCESS TO THIS NETWORK DEVICE IS PROHIBITED. You
must have explicit permission to access or configure this device. All activities
performed on this device may be logged, and violations of this policy may result
in disciplinary action, and may be reported to law enforcement."
|
PCS10.
|
XXX
AND CUSTOMER RESPONSIBILITIES
|
PCS10.1 XXX
shall furnish and maintain, on its premises or the premises of its
subcontractors and at JHA’s cost, all of the equipment which it deems necessary
to perform the Processing Services. XXX retains the right to move the
equipment to any other location provided that such change will not materially
alter the Processing Services.
PCS10.2 Customer
shall furnish and maintain, on its premises and at its cost, all of the
equipment and materials specified by XXX as being necessary for Customer to
receive, transmit and otherwise utilize the Processing Services. If
Customer receives item Processing Services from XXX under the Schedule, Customer
shall adequately photocopy or otherwise image all items prior to delivering them
to XXX or any courier. Customer shall also notify XXX of the
anticipated commencement of on-line Processing Services through new or
additional terminals or the opening of new branches at least thirty (30) days in advance of the
commencement of these Processing Services so as to enable XXX to arrange for
necessary communication lines and with the understanding that the scheduled
implementation date of such new on-line support may be dependent on the delivery
schedules of third party vendors. Customer shall reimburse XXX when
billed for charges, or Customer’s portion of charges pro-rated among JHA’s
customers served, for communication lines or devices or installation of
communication lines or devices arranged and paid for by XXX on behalf of
Customer. Any equipment leased by XXX to Customer shall be maintained in accordance
with the provisions of a separate lease agreement executed between XXX and
Customer.
PCS10.3 If
the installation of the Processing Services requires XXX to have access to
another vendor’s software being used by Customer, Customer will obtain any
required permission from the vendor for JHA’s access, and Customer will pay any
charges or fees imposed by the vendor. In this connection XXX will agree to
treat the vendor’s software as confidential and proprietary to the
vendor.
PCS11. RESPONSIBILITY
FOR DATA
PCS11.1 XXX
shall use reasonable care in the processing of the accounts for Customer and
reports to Customer. Customer shall promptly check and verify all of
the reports received from XXX to ascertain that all data has been processed and
reported correctly, and to report any discrepancies to XXX not later than three
(3) business days following receipt of the reports. Business days
will be defined to be Monday through Friday, from 8:00 A.M. to 5:00 P.M. of the
time zone of Customer’s location. Failure to report any discrepancies
within the time prescribed in the previous sentences shall constitute a
conclusive presumption that the reports are correct and accurate.
PCS11.2 XXX
will provide safeguards determined at its discretion to ensure protection
against destruction of records and Software by fire or other disasters, loss of
data in transit or machine or human error, or unauthorized manipulation of data
or reports insofar as can reasonably be expected using then current techniques
and/or then current accepted business practices for storage and transfer of
magnetic media.
PCS11.3 Customer
shall review on a daily basis any audit, maintenance and exception reports
available from XXX.
|
PCS12.
|
DISASTER
RECOVERY AND BACKUP OF DATA
|
PCS12.1 XXX
maintains a disaster recovery plan with off-site data files and communications
facilities for the re-establishment of Processing Services in the event of a
disaster at XXX and agrees to make such backup processing capability available
to Customer in the event of a major disaster or significant equipment failure at
JHA’s data center. XXX shall test the plan in a commercially
reasonable manner on an annual basis. The results of this testing will be
documented and made available for examination by Customer or its independent
auditors upon the request of Customer. This documentation and the XXX Disaster
Recovery Plan will also be available for review by all Federal and state
regulatory agencies having jurisdiction over Customer. All files and
data pertaining to Customer will be backed up daily and backup files will be
available for restoration for a minimum of thirty (30) days.
|
PCS13.
|
WARRANTIES,
EXCLUSIVE REMEDIES AND LIMITATION OF LIABILITY FOR PCS
SERVICES
|
PCS13.1 The
liability of XXX for any and all damages and actual loss caused by XXX for
Processing Services shall not exceed the aggregate total of the fees paid by
Customer for the Processing Services during the previous twelve (12) months,
less the various expenses and pass through costs for the Processing Services.
Customer shall provide XXX with all documentation necessary to demonstrate any
claimed loss by Customer. Further, if within ninety (90) days of the
notification of XXX of a material breach of the warranties contained in this
section, XXX is unable to correct the breach or render it nonmaterial then
Client may opt to terminate this Agreement and deconvert from the XXX Service
Bureau without penalty or early termination fee. Excepting other
remedies specifically provided for in this Agreement, the remedies herein
contained are exclusive.
PCS13.2 XXX
provides the following warranties for the Processing Services:
Equipment:
XXX shall use its
own Software in conjunction with the equipment necessary to perform the
Processing Services. All equipment shall be maintained in a reasonable manner
which shall be compliant with industry standards. XXX shall not be liable to
Customer or to any third party, including, but not limited to, customers of
Customer, for errors resulting from defects or malfunctions of the mechanical or
electronic equipment used in performing the Processing Services
hereunder.
Processing:
XXX warrants to
provide the Processing Services under this Agreement in a competent manner
consistent with industry standards. In the event that the Processing Services
provided by XXX shall fail to meet the foregoing standard, XXX shall diligently
and in good faith attempt to correct the Processing Services without additional
cost to Customer. During the period that XXX is correcting its Processing
Services, Customer shall not expect XXX to provide any Processing Services
without compensation. If within a reasonable time XXX is unable to
correct the Processing Services, Customer shall be entitled to an equitable
reduction in fees paid to XXX for the defective Processing
Services. If XXX is unable to correct the defective Processing
Services within ninety (90) days following receipt of Customer’s written notice,
Customer may terminate the defective Processing Services upon written notice to
XXX. The remedies contained herein are exclusive.
12
PCS14. PERFORMANCE
STANDARDS
PCS14.1 XXX
shall create and abide by service levels for performance of the mission critical
portions of the Processing Services which XXX renders in a closed
environment. XXX may establish a measurement period for the
Processing Services in order to assure that XXX is meeting its performance
standards for the Processing Services. These service level standards and
measurement periods are specified in the Processing Services
Schedule.
PCS14.2 In
the event JHA’s standard of performance stated in a Schedule falls below the
prescribed level of performance for the Processing Services over the prescribed
Measurement Period, XXX shall promptly credit against Customer’s next invoice
for affected Processing Services three percent (3%) of the fee for the
applicable service until such time as the performance levels exceed the minimum
level of performance.
PROFESSIONAL
SERVICES
PFS1. ORDERING
PFS1.1 Customer
may from time to time request certain Professional Services from XXX. The nature
and scope of these Professional Services will be detailed on a Schedule to this
Agreement. Professional Services will be measured and performed on an hourly
basis, daily basis or a fixed fee basis, or a combination of these bases, as
identified in the Schedule. Unless otherwise specified in a Schedule,
payment for Professional Services will be due by Customer within thirty (30)
days following the date of a correct and valid invoice from XXX.
PFS2. SCHEDULING
OF PROFESSIONAL SERVICES
PFS2.1 The
Professional Services will be performed as soon as it is mutually convenient to
both parties, in accordance with the timetable shown in the Schedule. Once the
Professional Services begin, both parties will use their best efforts to
complete the Professional Services on the mutually agreed upon
time.
PFS2.2 With
respect to Profession Services performed at Customer’s site, if Customer
requests a delay or rescheduling of the committed project commencement date, XXX
will apply reasonable efforts to accommodate this request, but XXX reserves the
right to charge Customer a rescheduling fee which will be calculated as
follows:
|
(a)
|
if the
rescheduling request is received from Customer within the seven (7) day
period preceding the committed project commencement date, the
rescheduling fee will be 30% of the total Professional Services fee shown
in the Schedule;
|
|
(b)
|
if the
rescheduling request is received from Customer within the period of days
8-15 preceding the committed project commencement date, the
rescheduling fee will be 20% of the total Professional Services fee shown
in the Schedule; and
|
|
(c)
|
if the
rescheduling request is received from Customer within the period greater
than 15 days preceding the committed project commencement
date, the rescheduling fee will be 10% of the total
Professional Services fee shown in the
Schedule.
|
This rescheduling
fee shall be in addition to any out-of-pocket expenses incurred by XXX in
accommodating Customer’s rescheduling request.
|
PFS3.
|
COMPLIANCE WITH CUSTOMER
POLICIES AND PROCEDURES
|
PFS3.1 For
Professional Services which require JHA’s remote access to Customer’s systems or
which involve delivery of the Professional Services at Customer’s
location, XXX shall comply with all of Customer’s policies and
procedures relating to access to Customer’s facilities and systems which are
communicated to XXX in writing.
PFS4. PROVISION
OF RESOURCES
PFS4.1 For
Professional Services which involve delivery of the Professional Services at
Customer’s location, Customer shall provide for JHA’s services personnel’s use,
at no charge to XXX, a workspace and access to the appropriate Customer
computing resources and environment, including phone, fax and other mutually
agreed upon office equipment and materials needed to complete the Professional
Services. Customer shall arrange for all necessary security badges
and IT system log-in/passwords for the XXX services personnel required by
Customer’s policies and procedures, so that JHA’s services personnel may
immediately commence delivery of the Professional Services upon arrival at
Customer’s site.
PFS4.2 Tasks
that are not specifically assigned in the Schedule to XXX will remain Customer's
responsibility to perform and will remain under Customer's supervision,
management and control, even if XXX assists Customer in performing such
tasks. XXX will not be responsible for delays in performing the
Professional Services caused by delays or nonperformance of project tasks which
Customer is responsible to perform.
PFS5. PROJECT
MANAGEMENT
PRS5.1 For
Professional Services which involve delivery of the Professional Services at
Customer’s location, each party may designate a project manager who will be
responsible for general oversight and management of the services project and
will serve as the primary project liaison for the other party. Either
party may change its project manager upon written notice to the other
party. Project managers do not have the authority to amend this
Agreement or any Schedule or Statement of Work relating to the
project. If the parties desire to modify the terms or requirements
stated in a Schedule or Statement of Work, the project managers will coordinate
the development and signature of the appropriate written amendment or change
order to the Schedule or Statement of Work affected by authorized
representatives of the parties.
PFS6. IMPLEMENTATION
PFS6.1 Customer
may employ XXX to implement any Software Licensed to Customer under the terms of
this Agreement. Upon installation of the unmodified Software at the Customer’s
designated location XXX will (if contracted for) implement unmodified Software
so it will properly operate in accordance with the documentation on Customer's
Operating Environment, as specified in Exhibit A, and will assist Customer in
converting the data of the institutions listed in Exhibit B to the Software
system. Customer will, in a timely manner, furnish data needed and
requested by XXX, and will co-operate with and assist XXX personnel in the
installation and conversion of the Software. If Customer is
converting from another provider’s Software, Customer shall secure any necessary
permission required to permit XXX to have access to the software of the provider
in order to effect the conversion to the Software.
PFS7. INDEPENDENT
CONTRACTORS
PFS7.1 Each
party will be and act as an independent contractor and not as an agent or
partner of, or joint venture with, the other party for any purpose related to
this Agreement or the transactions contemplated by this Agreement. Further,
neither party, by virtue of this Agreement will have any right, power or
authority to act or create any obligation, expressed or implied, on behalf of
the other party.
PFS8. OWNERSHIP
OF DELIVERABLES
PFS8.1 With
respect to Professional Services in which the Schedule or Statement of Work
specifies a deliverable to be provided by XXX that is a Software customization,
Software interface program or other software program, template or documentation
(“Work Product”), the Work Product shall be owned by XXX and its licensors and
licensed to Customer for its use in accordance with the License for the Software
product to which the Work Product relates. Further, subject to
Customer’s ownership rights to any data or materials provided by Customer
13
to XXX for
inclusion with the Work Product, the Work Product shall be deemed JHA’s
Confidential Information.
PFS8.2 Customer
shall retain exclusive ownership of any data provided by Customer to XXX for
XXX’x use in performing Professional Services to Customer.
PFS9. LIMITATION
OF LIABILITY
PFS9.1 The
maximum amount of JHA’s aggregate liability for actual direct damages
recoverable by Customer pursuant to Subsection GEN12.3 with respect to
Professional Services performed pursuant to a Schedule shall be equal to the
total amount of Professional Services fees paid by Customer to XXX under the
Schedule involved.
14
EXHIBIT
A
SOFTWARE
AND SERVICES PROVIDED BY LICENSE MAINTENANCE AND SERVICES AGREEMENT
ABA#
000000000
SilverLake
System®
|
Description
|
QTY
|
License Fee
(LCS)
|
Install Fee
(PFS)
|
Annual
Maintenance Fee (MNT)
|
|
SilverLake
System
|
1
|
$1,023,000.00
|
$384,415.00
|
$182,340.00
|
|
Non-Technical
Conversion Costs
|
1
|
0.00
|
167,652.00
|
0.00
|
|
Third Party
Check Image Core Inquiry Interface to Wausau
|
1
|
37,500.00
|
10,000.00
|
7,125.00
|
|
Third Party
Check Image File Interface to Wausau
|
1
|
25,000.00
|
3,200.00
|
4,750.00
|
|
Third Party
Check Image Transaction Set Core Inquiry Interface to
Xxxxxx
|
0
|
25,000.00
|
4,000.00
|
4,750.00
|
|
Call Report
Pro
|
1
|
0.00
|
0.00
|
1,840.00
|
|
Sub-Total
|
|
$1,110,500.00
|
$569,267.00
|
$200,805.00
|
|
Less
Multi-bank Discount
|
|
(17,500.00)
|
0.00
|
0.00
|
|
Less
XXX Allowance
|
|
(358,050.00)
|
(134,545.25)
|
0.00
|
|
Total
|
|
$734,950.00
|
$434,721.75
|
$200,805.00
|
For
Use By:
Southside
Bank Tyler
TX
Fort
Worth National Bank Fort Worth TX
Program
customization and consulting services at $150 per hour for the first year
following the date hereof, and at JHA's standard hourly fee thereafter.
(PFS)
Unlimited eLearning
access for Customer’s employees beginning on the date this agreement is executed
until the first June 30 subsequent to the implementation of
SilverLake. Thereafter on an annual basis Customer shall pay XXX its
then current annual fee for the eLearning training modules unless Customer
notifies XXX in writing of its intention to terminate its use of the eLearning
training modules. (PFS)
XXX SilverLake
System Modules Included:
|
Account
Analysis
|
Escrow
Reporting
|
Manual Proof
of Deposit
|
|
Account
Reconciliation
|
Exception
Item Processing
|
Marketing
Information Tracking
|
|
ACH
Processing
|
Executive
Reminder
|
Miscellaneous
|
|
ACH Upload
Interface
|
FASB
Reporting
|
Non-Core
Application Tracking
|
|
Audit
Confirmations
|
File
Maintenance
|
OFAC
Reporting
|
|
Automated
Account Closing
|
FR2900
Reporting
|
Overdraft
Protection Accounting
|
|
Automatic
Funds Transfer
|
GAP
Analysis
|
Parameter
Maintenance
|
|
Budgeting
|
General
Ledger Accounting
|
Portfolio
Accounting
|
|
Call Report
Module
|
· Includes
Holding Company
|
Positive
Pay
|
|
Call Report
Interface
|
· General
Ledger Report Writer
|
Privacy Act
Reporting
|
|
Cash
Sweep
|
Inquiry
|
Report
Selection
|
|
Charge Off
Processing
|
Inclearing
Via Fed Interface
|
Repurchase
Agreements
|
|
Child Support
Tracking
|
Job
Accounting
|
Safe Deposit
Box
|
|
Collateral
Tracking
|
Loan
Accounting
|
Service
Charge Modeling
|
|
Contract
Collections
|
· Commercial
|
Shareholder
Accounting
|
|
CRA
Reporting
|
· Credit
Lines
|
Taxpayer
Identification Reporting
|
|
Currency
Transaction Reporting
|
· Floor
Plan
|
Time Deposit
Accounting
|
|
Customer
Information File
|
· Home
Equity
|
· Certificate
of Deposit
|
|
Deposit
Accounting
|
· Installment
|
· Educational
|
|
· Club
|
· Mortgage
|
· XXX
|
|
· Demand
|
· Multi-Level
Credit Lines
|
· QRP
|
|
· Savings
|
· Participations
|
· XXXX
|
|
End of Day
Processing
|
· Shadow
Accounting
|
· SEP
|
|
End of Year
Processing
|
· Student
|
· TDOA
|
|
Enhanced
Security
|
Loan
Collections
|
TurnOver PDQ
by SoftLanding
|
|
Enhanced
Statements
|
Loan
Pricing
|
Wires
|
15
This Software is to
be installed on one production IBM i5 series machine located at Customer’s
primary processing location.
|
The Third
Party Check Image Core Inquiry Interface requires the Third Party Check
Image File Interface and delivers single image viewing from third party
check images to XXX core systems online history for inquiry
purposes. Requires XXX certification of third party
vendors. Pricing represents standard interface
implementation and support fees. Any non-standard customization
will be billed at a rate of $150.00 per person hour for initial
implementation and for annual release.
|
|
The Third
Party Check Image File Interface includes the processing of an
all-items-file, creation of an exception item file, a bulk filing/cycle
sort file, a statement sort file, a repost file, an account validation
file and notice/image statement preparation files. This
interface does not include any image viewing from host
system. CIF 20/20 requires Enhanced Statements module for Image
Statements (included with Silverlake and Core
Director). Requires XXX certification of third party
vendors. Pricing represents standard interface
implementation and support fees. Any non-standard customization
will be billed at a rate of $150.00 per person hour for initial
implementation and for annual release.
|
|
The accuracy
and integrity of the image items displayed through the XXX Third Party
Check Image Transaction Set Interfaces are directly dependent on the
accuracy and integrity of the Transaction Sets archived in Licensee’s
check image archive. XXX advises Customer that the misuse of
the Transaction Set information purchased hereunder may result in a breach
of Customer's obligations to maintain customer
confidentiality. Customer assumes all responsibility for
assuring the use of the Transaction Set information in a legally compliant
manner. Third Party Check Image Transaction Set Core Inquiry
Interface requires the Third Party Check Image Core Inquiry
Interface.
|
[End of SilverLake
System Section]
Yellow
Hammer™
|
Description
|
QTY
|
License Fee
(LCS)
|
Install Fee
(PFS)
|
Annual
Maintenance Fee (MNT)
|
|
Yellow Hammer
Fraud Detective
|
1
|
$130,850.00
|
$19,627.50
|
$28,085.00
|
|
Yellow Hammer
BSA
|
1
|
120,000.00
|
24,000.00
|
30,000.00
|
|
Third Party
Check Image Fraud Detective Interface
|
1
|
0.00
|
6,000.00
|
3,000.00
|
|
Third Party
Document Image Fraud Detective Interface
|
1
|
0.00
|
6,000.00
|
3,000.00
|
|
Sub-Total
|
|
$250,850.00
|
$55,627.50
|
$64,085.00
|
|
Less
Multi-bank Discount
|
|
(15,425.00)
|
0.00
|
0.00
|
|
Total
|
|
$235,425.00
|
$55,627.50
|
$64,085.00
|
For
Use By:
Southside
Bank Tyler
TX
Fort
Worth National Bank Fort Worth TX
[End of Yellow
Hammer Section]
16
TimeTrack
Payroll System™
|
Description
|
QTY
|
License Fee
(LCS)
|
Install Fee
(PFS)
|
Annual
Maintenance Fee (MNT)
|
|
TimeTrack
Payroll
|
1
|
$35,000.00
|
$10,500.00
|
$6,930.00
|
|
Sub-Total
|
|
$35,000.00
|
$10,500.00
|
$6,930.00
|
|
Less
Multi-bank Discount
|
|
(3,500.00)
|
0.00
|
0.00
|
|
Less
XXX Allowance
|
|
(4,725.00)
|
(1,575.00)
|
0.00
|
|
Total
|
|
$26,775.00
|
$8,925.00
|
$6,930.00
|
For
Use By:
Southside
Bank Tyler
TX
Fort
Worth National Bank Fort Worth TX
[End of TimeTrack
Payroll Section]
jXchange™
|
Description
|
QTY
|
License Fee
(LCS)
|
Install Fee
(PFS)
|
Annual
Maintenance Fee (MNT)
|
|
jXchange -
Site License
|
1
|
$109,000.00
|
$22,500.00
|
$24,525.00
|
|
jXchange -
Site License Interface (Inquiry) to Q2 IVR
|
1
|
0.00
|
0.00
|
0.00
|
|
jXchange -
Site License Interface (Transaction) to Q2 IVR
|
1
|
0.00
|
0.00
|
0.00
|
|
jXchange -
Site License Interface (Inquiry) to Q2 Internet
|
1
|
0.00
|
0.00
|
0.00
|
|
jXchange -
Site License Interface (Transaction) to Q2 Internet
|
1
|
0.00
|
0.00
|
0.00
|
|
jXchange -
Site License Interface (Inquiry) to Xxxxxxx Deposit Pro
|
1
|
0.00
|
0.00
|
0.00
|
|
jXchange –
(Transaction) to Xxxxxxx Deposit Pro
|
1
|
0.00
|
4,500.00
|
4,905.00
|
|
jXchange –
(New Deposit) to Xxxxxxx Deposit Pro
|
1
|
0.00
|
4,500.00
|
4,905.00
|
|
jXchange –
(Inquiry) to Xxxxxxx Laser Pro
|
1
|
0.00
|
4,500.00
|
4,905.00
|
|
jXchange –
(Transaction) to Xxxxxxx Laser Pro
|
1
|
0.00
|
4,500.00
|
4,905.00
|
|
jXchange –
(New Loan) to Xxxxxxx Laser Pro
|
1
|
0.00
|
4,500.00
|
4,905.00
|
|
Total
|
|
$109,000.00
|
$45,000.00
|
$49,050.00
|
For
Use By:
Southside
Bank Tyler
TX
Fort
Worth National Bank Fort Worth TX
[End of jXchange
Section]
17
Complementary
Products
|
Description
|
QTY
|
License Fee
(LCS)
|
Install Fee
(PFS)
|
Annual
Maintenance Fee (MNT)
|
|
Mutual Fund
Sweep
|
1
|
$10,000.00
|
$2,000.00
|
$1,575.00
|
|
Reserve Funds
Interface
|
1
|
5,000.00
|
4,000.00
|
787.50
|
|
Enhanced
Account Analysis
|
1
|
50,000.00
|
18,000.00
|
7,875.00
|
|
Demand
Account Reclassification
|
1
|
45,000.00
|
2,000.00
|
8,100.00
|
|
Sub-Total
|
|
$110,000.00
|
$26,000.00
|
$18,337.50
|
|
Less
Multi-bank Discount
|
|
(23,750.00)
|
0.00
|
0.00
|
|
Less
XXX Allowance
|
|
(5,625.00)
|
(3,000.00)
|
0.00
|
|
Total
|
|
$80,625.00
|
$23,000.00
|
$18,337.50
|
For
Use By:
Southside
Bank Tyler
TX
Fort
Worth National Bank Fort Worth TX
[End of
Complementary Products Section]
Browser
User Interface
|
Description
|
QTY
|
License Fee
(LCS)
|
Install Fee
(PFS)
|
Annual
Maintenance Fee (MNT)
|
|
Browser User
Interface for SilverLake - (Site License)
|
1
|
$50,000.00
|
$0.00
|
$0.00
|
|
Total
|
|
$50,000.00
|
$0.00
|
$0.00
|
For
Use By:
Southside
Bank Tyler
TX
Fort
Worth National Bank Fort Worth TX
[End of Browser
User Interface Section]
jConnect+
|
QTY
|
Description
|
One Time Fee
(PFS)
|
Monthly Fee
(PCS)
|
|
1
|
jConnect+
Service Path for VIP Support
|
$0.00
|
$0.00
|
|
1
|
jConnect+
Service Path for Reserve Funds Sweeps
|
0.00
|
0.00
|
|
1
|
jConnect+X (Less
than 500 Kbps)
|
600.00
|
50.00
|
|
|
Total
|
$600.00
|
$50.00
|
For
Use By:
Southside
Bank Tyler
TX
Fort
Worth National Bank Fort Worth TX
18
The term of the
processing services referred to in this Section shall be for thirty-six (36)
months from the date the Processing Services are first provided to Customer or
240 days from the date of this Agreement, whichever occurs first.
The Processing
Services referred to in this Section require Customer to have a high speed
connection to the internet.
As
a component of these Processing Services XXX shall provide a router which will
be housed at Customer’s location for use with the Processing
Services. Customer is responsible to maintain this router in a
secured environment and is responsible for any damage which occurs to the router
while in Customer’s possession. Upon the termination of the
Processing Services, Customer shall return the router to XXX.
[End of jConnect+
Section]
19
EXHIBIT
B
INSTITUTIONS
COVERED BY LICENSE MAINTENANCE AND SERVICES AGREEMENT
FOR: Southside
Bancshares, Inc. 0000 X Xxxxxxx Xxxxx,
XX 00000 (CUSTOMER)
FINANCIAL INSTITUTIONS AND
LOCATIONS
|
Name
|
Address
|
City
|
State
|
Zip
|
Billing Address
|
|
Contact Name
|
|
Xxxx Xxxxx Xxxxxxxx Xxxx
|
|
Xxxx Xxxxx
|
Xxxxx
|
|
|
|
|
|
Southside Bank
|
0000 X Xxxxxxx
|
Xxxxx
|
Xxxxx
|
00000-0000
|
|
|
|
AUTHORIZED
PERSONNEL
The following
employees/officers of Customer are authorized by Customer to contact and work
with XXX on support, maintenance, customization or modifications of XXX
Software. This list may, from time to time, be changed by Customer
upon written notice to XXX.
|
NAME
|
|
POSITION
|
|
|
|
Chairman of the
Board
|
|
|
|
Chief Executive
Officer
|
|
|
|
President
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20
EXHIBIT
C
PERFORMANCE
GUARANTEE
For valuable
consideration, receipt of which is hereby acknowledged, we the undersigned two
financial institutions, being wholly owned subsidiaries of the aforementioned
Licensee, do hereby individually and collectively guarantee the performance of
this Agreement by Customer, who is our Corporate Parent and Holding
Company.
|
Southside Bank
|
|
Fort Worth National Bank
|
|
1201 X. Xxxxxxx
|
|
000 Xxxx Xxxxxxxx
|
|
Xxxxx, XX 00000
|
|
Xxxx Xxxxx, XX
00000
|
|
|
|
|
|
By:
/s/ Xxx Xxxxxx
|
|
By:
/s/ Xxx Xxxxxx
|
|
Xxx
Xxxxxx
|
|
Xxx Xxxxxx
|
|
Print/Type Name
|
|
Print/Type Name
|
|
Title: President
|
|
Title: Director
|
|
Date: 1/31/08
|
|
Date: 1/31/08
|
|
|
|
|
21
