RESELLER SOFTWARE LICENSE AND SUPPORT AGREEMENT
RESELLER
This Reseller Software License and
Support Agreement (“Agreement”) is made
and entered into as of April 25, 2009 (the “Effective Date”) by
and between Rurbanc Data Services, Inc., an Ohio Corporation having a mailing
address of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (“RDSI”), and New Core
Holdings, Inc., a Florida corporation having a mailing address of ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“NCHI”) (each a “Party” and
collectively the “Parties”).
WHEREAS, NCHI is in the
business of developing, marketing and selling core software programs and
products related to the financial industry, including the software called Single
Source described in Schedule A, attached hereto (“Software”);
and
WHEREAS, NCHI has developed
the Software to operate in single and multiple customer environments, as
described herein; and
WHEREAS, NCHI has developed
and established additional product offerings related to the Software and may
develop more product offerings in the future; and
WHEREAS, RDSI is a banking
data and item processing service provider which owns computer hardware,
networking equipment and owns or licenses associated system software;
and
WHEREAS, NCHI and RDSI wish to
enter into an agreement pursuant to which NCHI shall license to RDSI the right
to sub-license and install or host and run the Software and additional products
for the purposes of servicing Customers; and
WHEREAS, NCHI owns and/or has
the right to grant the rights and licenses to RDSI described herein for the use,
resale and sub-licensing of the Software and the Additional
Products;
WHEREAS, NCHI and RDSI are
contemplating a business structure that is intended to ultimately combine the
two companies.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Parties, NCHI and RDSI hereby agree as follows:
1. Definitions. The
following terms shall have the meanings set forth herein when used in this
Agreement.
1.1. Additional
Products. Services or products related to the Software or
licensed or sold to a Customer in connection with the Software, including but
not limited to services for Disaster Recovery and Internet Banking, training,
maintenance, technical support and similar services.
1.2 Ancillary
Software. The third party software applications that are
intended to be provided to Customers, which at the present time include the
following: Oracle 10g by Oracle Corporation; Crystal Reports by SAP; PDF ▇.▇▇▇
by O2 Solutions; .image 5.i by Atalasoft; DivaServer telephony card; Rangrover
bySilver bullet; .Net 2.0 framework by Microsoft; Visual Studio 2005 by
Microsoft.
1.3 ASP (Application Service
Provider) License. An arrangement for the access and use of
the Software by Customers whereby RDSI owns the equipment and hardware, will
host the Software on its own servers within its own facilities and only has software
upgrade, patching and security responsibilities and the respective Customer has
the operational, processing and transactional responsibilities.
1.4. Confidential
Information. All information owned, possessed or used by
either Party, which is not generally known to the public, that is communicated
to, learned, developed or otherwise acquired by the other Party or a
subcontractor or their employees or agents (a) in the performance of this
Agreement, or (b) through any form of written, verbal or electronic
communication where the Party receiving the information knows or should know
that such information is confidential. “Confidential Information”
includes but is not limited to Customer information, Trade Secrets,
methodologies, financial data (including costs and price data), personnel
information, records, projections, sales and marketing data, business plans,
technical processes, product designs, network architecture or other information
regarding business operations, vendors, customers or computer
systems.
1.5. Customer. A
financial institution that is the end-user of the Software and which has entered
into a Customer Agreement with RDSI.
1.6. Customer
Agreement. The written agreement(s) executed between Customers
and RDSI, pursuant to which a Customer licenses the access to or the use of the
Software and, if applicable, Additional Products, and which is substantially in
the form of the standard form of customer agreement, approved by NCHI And
RDSI.
1.7. Data Service Center
License. An arrangement for the access and use of the Software
by Customers whereby RDSI owns the equipment and hardware, will host the
Software on its own servers within its own facilities and not only has software
upgrade, patching and security responsibilities but also operational,
processing and transactional responsibilities.
1.8. Delivery
Conditions. The occurrence of one or more of the following:
(i) NCHI’s breach of this Agreement or (ii) NCHI materially or repeatedly (two
or more times within any given thirty (30) day time period or six or more times
within any 180-day time period) fails to carry out any support or maintenance
obligations for all or any portion of the Software and either (a) does not cure
the failure within ten (10) business days of receipt of a notice from RDSI of
failure to perform, or (b)
if same cannot reasonably
be cured within the ten-day period, fails to promptly take remedial steps
to diligently cure such failure and thereafter cure the failure within
thirty (30) calendar days; or (iii) Failure of NCHI to function as a going
concern or ceasing to operate in the ordinary course; or (iv) NCHI is
subject to voluntary or involuntary bankruptcy; or (v) NCHI announces in writing
its intention to discontinue, or discontinues, providing support or maintenance
for all or any portion of the most current version and the immediately preceding
version of the Software; or (vi) RDSI elects to retain its rights under this
Agreement following a rejection thereof by NCHI in any proceeding under the
Bankruptcy Code, Title 11 United States Code; or (vii) Pending any rejection or
assumption of this Agreement under Section 365 of the Bankruptcy Code following
commencement of a proceeding by or against NCHI thereunder, NCHI elects not to
perform the License Agreement; or (viii) An Insolvency Event occurs with respect
to NCHI. “Insolvency Event” means the occurrence of any of the
following: (A) NCHI makes an assignment for the benefit of creditors; (B) a
petition under any foreign, state or United States bankruptcy act, receivership
statute, or the like, as they now exist, or as they may be amended, is filed by
NCHI; or (C) such a petition is filed with respect to NCHI by any third party,
or an application for a receiver is made by anyone with respect to NCHI, and
such petition or application is not resolved favorably within sixty (60)
days.
1.9. Disaster
Recovery. A disaster recovery service related to the Software
to be offered to Customers by RDSI.
2
1.10. Documentation. The
standard documentation (online versions or hard copies), manuals, and other
resource materials delivered by NCHI to RDSI which detail the operation,
specifications and features of the Software.
1.11. Escrow
Materials. Collectively, all then-current source code
for the Software and including all code (and any third-party code) necessary to
compile and operate the Software, together with all documentation as would be
necessary to enable a reasonably skilled programmer to maintain such Software
and descriptions of all compilers, assemblers, other computer programs and
related documentation, and other materials that are necessary or useful to use,
modify, and prepare derivative works from such source code; all information,
documentation and materials relating to the installation of the software and its
integration with or into users’ computer systems; and the instructions and/or
source code for all modifications done for end users, whether on the end users’
computer systems or computer systems hosted for end users.
1.12. Extended Term. A five
(5) year period beginning on the expiration of the Initial Term, and which shall
automatically renew for additional five (5) year periods (each, a “Renewal Term”) unless
either Party, gives written notice of nonrenewal to the other Party not less
than twenty-four months prior to the end of the Extended Term or any Renewal
Term.
1.13. Hosted
Systems. The computer hardware, networking equipment and
associated systems software owned, licensed or leased by RDSI, on
which the Software is installed for remote use and access by a
Customer.
1.14. In-House
License. An arrangement whereby a Customer owns and
maintains the computer hardware and licenses the operating system on which the
licensed Software will operate. For Customers who elect to acquire an
In-House License, RDSI will provide or cause to be provided installation
services and Software Support (as described in Schedule B), but not hardware
maintenance or support.
1.15. Internet
Banking. A service offered to Customers by RDSI that allows a
Customer’s customers to conduct certain banking transactions over the
Internet.
1.16. Initial Term. The
period of time from the Effective Date first set forth above through the date
that the Plan of Merger is terminated without consummation of the Merger, as
defined therein.
1.17. License and Services
Fees. The fees set forth in Schedule C attached hereto to be
paid by RDSI to NCHI through the Initial Term, the Extended Term, any Renewal
Terms and the post termination period described in Section 12 for the right to
sub-license the Software to Customers and for NCHI’s support and Software
development and maintenance as described herein.
1.18. Plan of Merger. The
Agreement and Plan of Merger, dated as of the Effective Date, by and among RDSI,
NC Merger Corp. and NCHI.
1.19. Remote
Customer. A Customer using the Software by accessing the
Software from the Customer’s computers and network via an ASP License or a Data
Center License.
1.20. Software. The
NCHI computer software named “Single Source” which is a financial industry
server-based software application built within an Oracle database utilizing
Microsoft “.Net” framework and which is more fully described on Schedule A, as
revised, enhanced and updated from time to time, including its Documentation and
any Enhancements, patches, revisions and updated versions of such
software.
3
1.21. Software
Support. The maintenance and technical support to be provided
to Customers by RDSI and NCHI, as described in Schedule B.
1.22. Subscription
Fees. Fees paid by Customers to RDSI, which in turn pays to
NCHI its share as License and Services Fees, as described in Schedule
C.
1.23. Territory. The
world.
1.24. Trade Secrets.
Information, including the whole or any portion or phase of any scientific or
technical information, design, process, procedure, formula, pattern,
compilation, program, device, method, technique, or improvement, or any business
information or plans, financial information, or listing of names,
addresses, or telephone numbers, that satisfies both of the
following: (1) It derives independent economic value, actual or potential, from
not being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or
use; and (2) It is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
2. Appointment;
Grant.
2.1. Distribution Right During
Initial Term. NCHI grants to RDSI, and RDSI accepts from NCHI,
the exclusive right during the Initial Term to promote, license, distribute and
otherwise market, maintain and support the Software and Additional Products to
and for Customers within the Territory (“Exclusive Distribution
Right”). RDSI may sublicense this Exclusive Distribution Right
to third parties only with the prior written consent of NCHI.
2.2 Distribution Right During
Extended Term. NCHI grants to RDSI, and RDSI accepts from
NCHI, the non-exclusive right during the Extended Term and any Renewal Term to
promote, license, distribute and otherwise market, maintain and support the
Software and Additional Products to and for Customers within the Territory
(“Non-exclusive
Distribution Right”). RDSI may sublicense the Non-exclusive
Distribution Right to third parties only with the prior written consent of
NCHI.
2.3 Exclusivity. During
the Initial Term, NCHI may not enter into any agreement to license its Software
to a Customer, nor enter into any agreement with any reseller, distributor or
any other provider of software or software related services. During
the Initial Term, RDSI shall have the exclusive right to license the Software to
Customers.
2.4 NCHI’s Retained Sales
Right. Notwithstanding Section 2.3, NCHI may directly promote
and solicit orders from Customers for use of the Software within the Territory
through RDSI. Any successful promotion or solicitation of such orders
will entitle NCHI to a commission as provided herein and in Schedule C
hereof. For the avoidance of doubt, NCHI does not, during the Initial
Term, retain for itself the right to accept orders for or license Software to
Customers or appoint or license other resellers, nor to accept orders from other
resellers.
2.5. Right to Use
Marks. NCHI also grants to RDSI, and RDSI accepts from NCHI,
the non-transferable right and license to use NCHI’s trademarks, service marks,
and logos (collectively, the “Marks”) in connection
with the marketing and sale of the Software to Customers and potential
Customers. The right and license to use the Marks granted under this
Section 2.5 shall be exclusive during the Initial Term and shall be
non-exclusive during the Extended Term and any Renewal Terms.
2.6 Limitations on
RDSI. Except as provided herein, this Agreement applies to the
operation, management and use of the Software in object code form, unaltered by
anyone other than NCHI.
4
3. RDSI’s
Obligations.
3.1. Efforts. RDSI
will use its best efforts to: (i) promote, solicit and obtain orders for the
Software, (ii) perform its installation, training, warranty, hosting,
maintenance and support services for Customers in a timely and professional
manner and (iii) enter into at least six (6) Customer Agreements prior to June
December 31, 2010.
3.2. Internal
Copy. NCHI will provide RDSI with one complete copy of the
Software at no charge (the “Internal
Copy”). Subject to this Agreement, NCHI grants RDSI a
non-exclusive and non-transferable license to use, enhance for demonstration
purposes, copy and publicly display the Internal Copy to conduct customer
demonstrations, training and technical support, for RDSI’s internal business
purposes and to provide Additional Services such as Disaster Recovery and
Internet Banking services.
3.3. Customer
Agreement. RDSI agrees that all distribution of the Software
will be done pursuant to written Customer Agreement(s). RDSI shall
limit and restrict any and all use of or access to the Software by third parties
to only those Customers who have executed a Customer Agreement and consultants
who have executed a written consulting agreement.
3.4. Promotional
Literature. The Parties shall work together to develop and
approve brochures and other promotional literature describing the
Software. All such works resulting from such joint efforts shall be
jointly owned by NCHI and RDSI.
3.5. Services. RDSI
will provide Customers purchasing an In-House License the installation and
support services contemplated under the Customer Agreement in a timely and
professional manner.
3.6. Facilities. RDSI
shall maintain facilities staffed with qualified personnel and Hosted Systems
necessary to meet its obligations under its Customer Agreements with
Customers.
3.7. Uptime
Commitment. RDSI shall provide Remote Customers access to the
Software twenty-four (24) hours a day, seven (7) days per week in accordance
with the following Uptime Commitment. Remote Customers shall be able
to access the Software at least ninety-eight percent (98%) of the scheduled
available time, determined on an annual basis, excluding downtime caused by
telecommunication companies or other network service providers, Software
defects, Customers, natural and man-made disasters or other force majeure
events, and any other causes beyond the immediate control of RDSI (the “Uptime
Commitment”). In the event that RDSI cannot or will not
maintain its Uptime Commitment, NCHI will provide to RDSI a written notice of
default specifying in detail the Uptime Commitment failures. If RDSI
cannot substantially correct such default within ninety (90) days after receipt
of notice, then NCHI shall have the right to contract with additional resellers
for the license of the Software. RDSI will perform any scheduled
maintenance outside of normal business hours.
3.8. Records. RDSI
will maintain a current list of its Customers, and copies of all Customer
Agreements executed with Customers. NCHI may, upon prior written
notice to RDSI and at its sole cost, inspect the agreements and business records
during normal working hours to verify RDSI’s compliance with this Agreement;
provided, however, that such inspection will not occur more than once in any
three (3) month period.
3.9. Enforcement. NCHI
will be responsible for enforcing against Customers the provisions of any
Customer Agreement that affect NCHI’s intellectual property or NCHI’ proprietary
or confidentiality rights in the Software. Notwithstanding the
foregoing, if RDSI discovers that any such person has breached any such
provision, RDSI will notify NCHI of such breach.
5
4. NCHI’s
Obligations.
4.1. Efforts. NCHI
will promote, solicit and obtain orders for the Software and cooperate with RDSI
in RDSI’s efforts to promote, solicit and obtain orders for the
Software. NCHI will cooperate with reasonable requests of Customers
for information as part of the obligations of Customers to investigate
third-party vendors.
4.2. Technical
Materials. NCHI will provide RDSI, at no additional charge,
with the data, diagrams, and other technical materials that RDSI deems
appropriate, necessary or helpful for RDSI to install, support and otherwise
service the Software. RDSI may make as many copies as it deems
necessary, provided that RDSI retains all confidentiality and proprietary
notices on each copy.
4.3. Training. NCHI
will provide RDSI, at no additional cost, with necessary training to market and
provide support for the Software as contemplated herein.
4.4. Support. NCHI
will, at no additional cost to RDSI, train RDSI to provide all installation and
the support services as described in Schedule B. NCHI will provide
Level 3 support services to Customers as described in Schedule B.
4.5. Enhancements. NCHI
will offer RDSI the fixes, updates, upgrades and localized, translated or new
versions of the Software that NCHI may periodically release, (the
“Enhancements”)
at no additional charge to RDSI.
4.6
Compliance. The
Software conforms to, and NCHI shall continually incorporate into the Software’s
Enhancements all modifications necessary to cause the Software to continue to
conform to, all regulatory requirements and changes thereto affecting Customers,
including but not limited to all applicable rules, guidelines and regulations of
the United States Treasury, Federal Deposit Insurance Corporation, Board of
Governors of the Federal Reserve, Office of the Comptroller of the Currency,
Office of Thrift Supervision, National Credit Union Administration and state
authorities responsible for the regulation of state banks, thrifts, credit
unions and other financial institutions. All such Enhancements shall
be written and distributed by NCHI so as to be operational for every Customer
not less than sixty (60) days prior to the effective date of the applicable
rule, guideline or regulation or such lesser time as is reasonable under the
circumstances.
4.7. Software
Audit. RDSI may at any time after the Effective Date and again
after the delivery of any significant Enhancements, audit the Software to
determine whether the Software operates in accordance with its
Documentation.
5. Insurance.
5.1
Amounts. Within
ninety (90) days of the Effective Date, and during the term of this Agreement,
NCHI shall procure and maintain without lapse the following types of insurance,
in the following amounts:
|
General
Liability
|
$5
million per occurrence
|
|
Errors
and Omissions Liability
|
$5
million per occurrence
|
|
Automobile
Liability
|
$2
million per occurrence
|
|
Workers'
Compensation
|
Statutory
coverage
|
6
5.2. Certificates. NCHI
shall provide RDSI with certificates of insurance evidencing such coverage and
naming RDSI as an additional insured thereunder. Insurance evidenced
by such certificates shall be considered primary over any and all other
collectible insurance, and such certificates must indicate the following:
“Rurbanc Data Services, Inc. is an additional insured, and the insurance
evidenced by this certificate shall be considered primary over any and all other
collectible insurance.” NCHI shall maintain, during the term of this
Agreement, workers' compensation insurance as statutorily required and shall
provide RDSI with a certificate of insurance evidencing such
coverage.
6. Prices
and Payment.
6.1. Fees. License
and Services Fees shall be paid as Subscriptions are collected from Customers
through the Initial Term, Extended Term, any Renewal Terms and the post
termination period described in Section 12, and will be calculated as set forth
in Schedule C.
6.2. Collection. RDSI
shall be responsible for collecting Subscriptions and fees due from Customers
during the Initial Term and for RDSI’s Customers during the Extended Term, any
Renewal Terms and the post termination period described in Section
12. Costs for Ancillary Software shall be paid by RDSI and shall
reduce the amount of Subscriptions for the purposes of calculating the License
and Services Fees.
6.3. Sales
Commissions. Because RDSI and NCHI have different sales
commission schedules, the applicable sales commission schedule shall be that of
whichever NCHI or RDSI makes the sale. The sales commission will be
paid by the benefiting entity (NCHI or RDSI) in proportion to that entity's
proportion of the contract Subscriptions and fees in accordance with Schedule
C. Each of NCHI and RDSI shall pay the commissions owing to its
personnel based upon its respective sales commission arrangements; such payments
shall be made by each of NCHI and RDSI out of its respective share of the
Subscriptions and fees in accordance with Schedule C, attached
hereto. In the event selling responsibility is shared, RDSI and NCHI
shall agree on the amount of the commission and the sharing of the cost of
payment of the commission.
7. Warranties
and Remedies.
7.1. By
RDSI. RDSI represents and warrants that it has full power and
authority to enter into this Agreement, and that it will comply with all
applicable law and regulations.
7.2. By
NCHI. NCHI warrants that it has full power and authority to
enter into this Agreement, that it will comply with all applicable law and
regulations, and that it has all title to the Software and/or has all rights
necessary to grant to RDSI the rights purported to be granted to
RDSI herein. NCHI further represents and warrants that the
Software does not and will not infringe upon any copyright nor misappropriate
any Trade Secret of any third party.
7.3. Software. NCHI
warrants that the Software will (i) substantially conform to the Documentation,
(ii) perform in all material respects as described in the accompanying
Documentation and (iii) complies with all applicable rules, guidelines and
regulations described in Section 4.6.
7.4 Breach of
Warranty. In
case of breach of warranty or any other duty related to the performance of the
Software, NCHI will, at its option, correct or replace the defective
Software. If RDSI determines that the defective Software cannot be
corrected or replaced within a reasonable period of time, NCHI shall provide a
refund of its portion of the Subscriptions or other fees paid by the
Customer.
7
7.5. Disclaimer. THE
WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES AND
CONDITIONS, EXPRESS OR IMPLIED, AND NCHI EXPRESSLY DISCLAIMS ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE. NCHI MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, WITH REGARD TO THE PERFORMANCE OF ANY THIRD PARTY SOFTWARE, PRODUCTS,
EQUIPMENT, OR HARDWARE, OR ANY THIRD PARTY CONTENT.
8. Indemnity.
|
|
8.1.
|
By
NCHI.
|
|
8.1.1.
|
In
the event of any claims or allegations regarding NCHI’s breach of its
confidentiality obligations, then NCHI shall, at its expense, indemnify,
defend, and hold RDSI harmless from and against any loss, cost, damage,
liability or expense (including attorneys’ fees) arising out of or related
to the same; provided that the foregoing indemnification is predicated
upon (a) RDSI notifying NCHI of such claim or action, (b) NCHI having the
sole and exclusive authority to defend and/or settle any such claim or
action (provided that RDSI may participate in any such defense at its
expense) and (c) RDSI reasonably cooperating with NCHI in connection
therewith.
|
|
8.1.2.
|
NCHI
will, at its own expense, defend any claims or suit that may be asserted
or instituted by Person against RDSI or Customers for alleged
misappropriation of Trade Secrets or infringement of any patent or
copyright enforceable in the United States relating to the Software, if
such alleged misappropriation or infringement is based on the use of the
Software in RDSI’s or Customers’ business. NCHI will pay all
such expenses (including but not limited to reasonable attorney’s fees),
together with damages and costs awarded by the court which finally
determines the case, or are incurred in the settlement thereof, provided
RDSI or Customers: (i) shall have made all payment then due NCHI
hereunder; (ii) gives prompt written notice to NCHI after RDSI becomes aware of such
claim (provided that the failure to so notify shall not affect RDSI’s
rights to indemnification hereunder unless, and then only to the extent
that, NCHI has been actually prejudiced thereby); (iii) gives NCHI
sole control of the defense and settlement of the claim (provided that the
NCHI may not agree to any settlement that involves injunctive or equitable
relief affecting the RDSI or Customer or admission of liability by RDSI or
Customer without obtaining the RDSI’s and Customer’s prior written
consent); (iv) provides to NCHI, at NCHI’s expense, all
available information and assistance; and (v) has not compromised or
settled such claim without NCHI’s
consent.
|
|
8.1.3.
|
If
the Software is found in and of itself to misappropriate a Trade Secret or
infringe any copyright or patent enforceable in the United States, NCHI
will: (a) pay any final award or damages in such suit or are incurred in
the settlement thereof which are attributable to such
misappropriation or infringement, and (b) if in such suit the use of the
Software by RDSI or Customers is permanently enjoined by reason of such
misappropriation or infringement, NCHI shall, at its own expertise and at
its sole option, either (i) procure for RDSI or Customers the right to
continue using the Software, (ii) modify the Software to render it
non-infringing, or (iii) replace the Software with non-infringing
software.
|
|
8.1.4.
|
NCHI
has no obligation under this Section 8.1 for any claim which results from:
(i) use of the Software in combination with any non-NCHI-provided
software; (ii) any modification of the Software other than at NCHI’s
direction; or (iii) use of an allegedly infringing version of the
Software, if the alleged infringement could be avoided by the use of a
different version made available to RDSI or
Customers.
|
8
8.2. By
RDSI. RDSI will indemnify NCHI against any damage, loss,
liability or expense that NCHI may incur (a) as a result of RDSI’s breach of
Section 7.1, (b) as a result of any express warranty or representation made by
RDSI beyond the limited warranties provided in Section 7.3 or under the Customer
Agreement, or (c) resulting from RDSI’s modification of the Software; provided
that the foregoing indemnification is predicated upon (a) NCHI notifying RDSI of
such claim or action, (b) RDSI having the sole and exclusive authority to defend
and/or settle any such claim or action (provided that NCHI may participate in
any such defense at its expense) and (c) NCHI cooperating with RDSI in
connection therewith.
9.
Limitation of Liability.
UNDER NO
CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE
DAMAGES, OR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST
PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE, BASED ON BREACH OF
WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING OUT OF OR RELATED TO
THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY PROVIDED HEREIN. Notwithstanding the foregoing, the
limitations of liability under this Section 9 shall not apply in the following
circumstances: intentional torts or breaches of a Party’s confidentiality
obligations hereunder.
10.
Confidential Information.
10.1. General. Except
as expressly permitted by this Agreement, neither Party shall use nor publish
nor disclose to any third party any proprietary or Confidential Information
received from the other Party or a Customer. Disclosure of
Confidential Information is permitted on a need-to-know basis to employees or
independent contractors retained to perform services that are subject to a
written non-disclosure agreement with obligations of confidentiality no less
restrictive than those set forth herein. Each Party agrees to use the
same precautions to prevent the unauthorized use or disclosure of the other
Party’s and Customers’ Confidential Information that it uses to protect its own
similar information, but no less than reasonable care. This
obligation of confidentiality shall survive the termination of this
Agreement.
10.2. Exclusion. The
provisions of Section 10.1 concerning non-disclosure and non-use of Confidential
Information shall not apply to any information that (a) is or becomes part of
the public domain through no fault of the receiving Party, (b) is independently
developed by the receiving Party, (c) was previously known by the receiving
Party without any obligation of confidentiality, (d) is received with no
obligation of confidentiality from a third party that could rightfully disclose
such information, or (e) is required by law or regulation to be disclosed, but
only to the extent and for the purposes of such required disclosure (provided
that the recipient first gives notice, reasonable under the circumstances, of
the requirement to disclose to the disclosing Party and affords the disclosing
Party a reasonable opportunity to resist such disclosure).
9
10.3. ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. Any
nonpublic personal information regarding RDSI’s or Customer’s depositors or
other customers disclosed to NCHI will be used by NCHI solely to carry out the
purposes for which disclosed and shall not be used in any manner prohibited by
Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. NCHI has implemented and will
maintain appropriate measures designed to meet the objectives of the Interagency
Guidelines Establishing Information Security Standards for safeguarding consumer
information and other customers as adopted by the federal regulatory agencies
having jurisdiction over Customers. These measures include secure
disposal of consumer information and customer information as required, and
taking appropriate actions to address incidents of unauthorized access to
Customers’ sensitive customer data information, including notification to
Customers as soon as possible of any such incident. All disclosures of
Confidential Information shall comply with all applicable consumer or Customer
privacy laws and regulations.
11.
Term and
Termination.
11.1. Term. This
Agreement will become effective as of the Effective Date first set forth above,
and will remain in effect thereafter until the expiration of the Initial Term
and the Extended Term, including any Renewal Terms, unless earlier terminated
for breach, as set forth herein.
11.2. Termination for
Breach. Either Party may terminate this Agreement in the event
the other Party (a) commits any material breach or default and fails to remedy
such breach or default within thirty (30) days after written notice of such
breach or default from the non-breaching or non-defaulting Party, or (b) ceases
to carry on business as a going concern, (c) becomes the object of the
institution of voluntary proceedings in bankruptcy or liquidation, or a receiver
is appointed with respect to a substantial part of its assets, or (d) becomes
the object of the institution of involuntary proceedings in bankruptcy or
liquidation, and any such bankruptcy or liquidation is not withdrawn or resolved
favorably within sixty (60) days of the commencement thereof.
11.3. Required
Termination. RDSI may terminate this Agreement upon reasonable
notice and without penalty if required by any banking or financial institution
regulator with jurisdiction over RDSI or RDSI’s parent.
12.
Consequences of Termination.
12.1 Continuation by
RDSI. Upon the termination or expiration of this Agreement,
RDSI and Customers with Customer Agreements then in effect shall be permitted to
continue such use for the greater of ten (10) years or the remaining
terms of such Customer Agreements. During such time, RDSI shall be entitled to
retain the rights to use the Software and related Documentation and materials
for the sole purpose of fulfilling RDSI’s obligations under the existing
Customer Agreements, and both RDSI and NCHI shall continue to provide support
and maintenance as provided in this Agreement.
12.2 Assignment of In-House
Licenses. Upon the termination or expiration of this
Agreement, at the request of NCHI, RDSI shall assign to NCHI all Customer
Agreements for In-House Licenses which were originally sold by
NCHI. Upon such assignment, RDSI shall be excused from all further
obligations under such assigned Customer Agreements and NCHI shall indemnify
RDSI against claims arising thereafter out of NCHI’s failure to perform its and
RDSI’s obligations under the assigned Customer Agreements.
12.3 Survival. Notwithstanding
the foregoing, the provisions of Sections 7, 8, 9, 10, 12, 13, and 14 will
survive the expiration or termination of this Agreement.
10
13.
Source Code Delivery.
13.1. Escrow
Agreement. The Parties are entering into an Escrow Agreement
with Iron Mountain Intellectual Property Management, Inc. dated as of the
Effective Date and NCHI shall deliver to the Escrow Agent named therein the
Escrow Materials, together with supporting Documentation and a
detailed listing of all compilers, assemblers, and other computer programs and
related documentation and other materials that are necessary or useful to use,
modify, and prepare derivative works of such source code and such other
materials required by the Escrow Agreement to be delivered to the Escrow
Agent.
13.2. Direct
Delivery. In order to protect RDSI’s rights under this
Agreement, in the event that a Delivery Condition occurs, then NCHI shall upon
the written demand of RDSI immediately provide to RDSI a current version of the
source code for the Software and all Enhancements, together with supporting
Documentation for such Software as is required or helpful to continue providing
support of such Software; and provide to RDSI a detailed list of all compilers,
assemblers, and other computer programs and related documentation and other
materials that are necessary or useful to use, modify, and prepare works
derivative of such source code.
13.3. License. RDSI
is granted the nonexclusive, worldwide, noncancellable license to use, copy,
prepare derivative works of, distribute, and perform or display publicly, modify
and have modified the Software and to distribute derivative works of same solely
to provide support and maintenance of the Software (including but not limited to
maintaining regulatory compliance) and fulfilling RDSI’s other obligations under
existing Customer Agreements (including financial institutions which have signed
a Customer Agreement but have not yet started using the
Software). For the avoidance of doubt, this license grant shall not
include the present right to possess the source code version of the Software,
which shall occur only as a result of Section 13.2 or under the terms of the
Escrow Agreement described in Section 13.1. This license includes the
right retain third parties to assist RDSI in the exercise of the rights in the
Software and derivative works granted to RDSI in this Section
13.3. The licenses granted in this Section 13.3 shall be deemed to
be, for purposes of Section 365(n) of the U.S. Bankruptcy Code
as licenses to rights in “intellectual property” as defined in
Section 101 of the U.S. Bankruptcy Code.
13.4. Injunctive
Relief. The Parties agree that violations of the provisions of
this Section will cause irreparable damage to RDSI, and RDSI shall be entitled,
in addition to any other rights and remedies which RDSI may have, at law or in
equity, to seek injunctive relief enforcing the provisions of this
Section.
13.5. Affect on License and
Services Fees. Upon the occurrence of a Delivery Condition or
a Release Event as defined in and under the terms of the Escrow Agreement
described in Section 13.1, NCHI’s
allocated revenue share percentages associated with each and every line item on
Schedule C shall be reduced by one-half thereafter.
14.
General
14.1. Independent
Parties. NCHI and RDSI are independent
parties. Nothing in this Agreement will be construed to make either
Party an agent, employee, franchisee, joint venturer or legal representative of
the other Party. Except as otherwise provided in this Agreement,
neither Party will either have nor represent itself to have any authority to
bind the other Party or act on its behalf.
14.2. Force
Majeure. Neither Party will be liable for any failure or delay
in performing an obligation under this Agreement that is due to causes beyond
its reasonable control, including but not limited to, weather and natural
catastrophes, governmental acts or omissions, labor strikes or difficulties,
transportation stoppage or slowdowns, communications failures or the inability
to procure parts or materials.
11
14.3. Notices. Any
notice, approval or other communication required or permitted under this
Agreement will be given in writing and will be sent by facsimile transmission,
overnight courier or registered airmail, postage prepaid, to the address
specified below or to any other address that may be designated by prior
notice. Any notice or other communication delivered by facsimile
transmission or overnight courier (with confirmation of receipt) will be deemed
to have been received the first day after it is sent. Any other
notice or communication will be deemed to have been received on the seventh day
after its date of posting.
|
If
to NCHI:
|
If
to RDSI:
|
|
|
New
Core Holdings, Inc.
|
Rurbanc
Data Systems, Inc.
|
|
|
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇
|
|
|
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Defiance,
Ohio 43512
|
|
|
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
Attention:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
|
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Executive
Officer
|
14.4. Assignment. Neither
Party may assign its rights or delegate its duties without prior written consent
from the other Party, other than pursuant to the transactions contemplated by
the Plan of Merger.
14.5. Waiver, Amendment,
Modification. Except as otherwise provided above, any waiver,
amendment or other modification of this Agreement will not be effective unless
in writing and signed by the Party against whom enforcement is
sought.
14.6. Severability. If
any provision of this Agreement is held to be unenforceable, in whole or in
part, such holding will not affect the validity of the other provisions of this
Agreement.
14.7. Interpretation. The
terms that are defined in this Agreement may be used in the singular or the
plural, as the context requires. “Days” means calendar days, unless
otherwise specified. “Person” means an individual, partnership,
company, corporation or other legal entity, as the context
requires. “Agreement” means this Agreement and all of its Schedules
and Exhibits. “Including” means “including without limitation,”
unless otherwise specified. Headings are intended only for reference
purposes. Every covenant, term, and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against
any Party.
14.8. Governing Law,
Venue. This Agreement will be governed by and interpreted in
accordance with the laws of the State of Ohio, excluding its conflict of law
principles. The Parties hereby consent and agree that jurisdiction
and venue for any claim or cause of action arising under or related to this
Agreement shall be properly and exclusively in the state or federal courts
located in Franklin County, Ohio. NCHI and RDSI hereby elect to
exclude the United Nations Convention on Contracts for the International Sale of
Goods from application to this Agreement and any transaction between them that
may be implemented in connection with this Agreement.
14.9. Entire
Agreement. This Agreement and its Schedules constitute the
complete and entire statement of all terms, conditions and representations of
the agreement between NCHI and RDSI with respect to its subject
matter. The provisions of this Agreement supplement the provisions of
the Escrow Agreement. Nothing contained in the Escrow Agreement shall
derogate from any of the rights or remedies of RDSI hereunder.
14.10 Counterpart
Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Parties hereto had signed the
same document. All counterparts shall be construed together and shall
constitute one agreement.
12
IN WITNESS WHEREOF, NCHI and
RDSI cause this Reseller Software License and Support Agreement to be executed
as of the Effective date by their duly authorized representatives identified
below.
|
Rurbanc
Data Services, Inc.
|
||||
|
(“NCHI”)
|
(“RDSI”)
|
|||
|
By:
|
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
Title:
|
President
and CEO
|
Title:
|
Chairman
and
CEO
|
|
Signature
Page to Reseller Software License and Support Agreement
13
SCHEDULE
A
DESCRIPTION
OF NCHI SINGLE SOURCE SOFTWARE
14
SCHEDULE
B
SOFTWARE
SUPPORT
15
SCHEDULE
C
CUSTOMER
LICENSE AND SUBSCRIPTION FEES
16