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CONFIDENTIAL TREATMENT* EXHIBIT 10.12
* CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO
THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION. BRACKETS
AND "+" HAVE BEEN USED TO IDENTIFY INFORMATION WHICH IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
NFRONT, INC. AND
MONEYLINE EXPRESS, INC.
AGREEMENT
HOME BANKING ▇▇▇▇ PAYMENT PROCESSING
AND FUNDS TRANSFER SERVICES
1. Parties. This Agreement is between nFront, Inc., ("Company"),
and Moneyline Express, Inc. ("Moneyline").
2. Effective Date. This Agreement is effective immediately upon
signing.
3. Purpose. Company provides services to financial institutions
("Financial Institutions") that are made available to account holders or
customers of such Financial Institutions ("Customers") to pay bills ("▇▇▇▇
Payment Services") and/or receive other banking services through telephone or
home computer activated instructions (collectively, "Home Banking"). Moneyline
provides to Company as a part of the ▇▇▇▇ Payment Services, back-room processing
of Customer activated payment instructions, funds transfer services for payment
to payees ("Vendors") listed in such instructions, and certain Customer
information services ( collectively, "Moneyline Services"). Company may provide
Moneyline with a list of Financial Institutions under contract with Company for
▇▇▇▇ Payment Services, as well as additions or deletions to such list as they
occur.
4. Contractual Relationship. This Agreement is intended and shall
be construed solely as an independent contract of Moneyline to Company to
facilitate its offering of Moneyline Services in the offering by Company of ▇▇▇▇
Payment Services. This Agreement is not intended for the benefit of Financial
Institutions, Customers or any other third persons, and shall not be deemed a
joint venture, partnership or similar joint undertaking.
Company will offer, on a nonexclusive basis, Moneyline Services in
connection with its offering of ▇▇▇▇ Payment Services to Financial Institutions
provided that such Financial Institutions are depository institutions insured,
or eligible for insurance, by the Federal Deposit Insurance Corporation, or the
National Credit Union Administration.
This Agreement is not exclusive. Neither Party is restricted from
entering into similar agreements with third persons.
5. Services. The Moneyline Services provided by Moneyline for
Company, and the services provided by Company as a part of ▇▇▇▇ Payment Services
("Company Services") are described in Exhibit A (collectively "Services").
6. Credit Risk.
A. Consumer DDA Accounts: Between the parties, Moneyline bears
the credit risk associated with potential NSF/return items for
all consumer DDA accounts.
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B. Business DDA Accounts: Between the parties, Moneyline bears
the credit risk associated with potential NSF/return items for
business DDA accounts only when all of the following
conditions are met:
(i) Moneyline's total exposure for the entire duration of
this Agreement is limited to a maximum loss of
$5,000.00 per business account. Between the parties
to this Agreement, Company bears any excess
liability.
(ii) The business is in good financial condition and has
been a customer of the Financial Institution for at
least one year. For businesses open less than one
year, Moneyline requires the opportunity to review
and approve or disapprove the financial condition of
the business. Costs associated with this credit
review process will be paid by the participating
Financial Institution.
C. Each payment is capped for both business and consumer ▇▇▇▇
payments. The cap on the effective date of this Agreement is
$9,999.00. Moneyline may change the cap from time to time with
the prior consent of Company and prior notice to Financial
Institution.
D. Risk Reduction Measures: Moneyline may at its option implement
reasonable features to reduce credit risks. These may include
but are not limited to pre-authorized drafts for business
customers, verifying funds through an ATM network, and
separating debits from credits so that payments are not sent
until after good funds are received. Moneyline will advise
Company in advance of the risk-reduction features Moneyline
intends to implement.
7. Performance Standards. The Parties agree that they will be
held to a standard of due care in accordance with recognized industry practices
of the highest standards and will use all best efforts to meet such performance
standards necessary to provide the ▇▇▇▇ Payment Services and Moneyline Services,
respectively. Failure by any Party, or the Parties, to meet such standards,
shall obligate such Party(s) to take corrective action as provided in Paragraph
14. Payments delivered over an automated clearing house system ("ACH"), or other
payment networks, shall be governed by and subject to the rules, regulations and
performance standards of such networks.
8. Fees. Company agrees to pay Moneyline those fees provided in
Exhibit B ("Fees").
9. Ownership. Each Party shall have and retain sole ownership of
their respective proprietary source codes and software packages used as a part
of the Services described in Exhibit A, including any enhancements or
improvements thereon. Company shall have and retain sole ownership of any
interface developed by it between the respective source codes and software
packages, including any enhances or improvements thereon; Moneyline shall have
and retain sole ownership of any source codes provided by it in connection with
said interface. Moneyline shall also retain sole ownership of any Vendor list
supplied by it as a part of the Services and the Company shall retain sole
ownership of any list of Financial Institutions or Customers provided to
Moneyline. No rights of ownership or use by one Party or by third persons, of
the proprietary source code and software of the other, or of the Company
interface by Moneyline or third persons, or of any internal source data or
Vendor list of Moneyline by Company or third persons, or Financial Institution
or Customer lists of the Company by Moneyline, shall arise by implication or
otherwise as a result of this Agreement except with the express written consent
or license by the owner. Any and all rights by one Party to use and/or possess
proprietary property of the other Party shall be extinguished and returned to
the owner immediately upon termination of this Agreement. Each Party grants to
the other Party a limited, nonexclusive and nontransferable license to use the
other Party's software and lists only for the purposes of this Agreement only
for so long as this Agreement is in effect. The license from Moneyline to
Company is more specifically stated in Exhibit C, "Software
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License Agreement." To the extent that the terms and conditions of such license
conflict with the terms of this Agreement, the terms of this Agreement shall
control.
10. Confidentiality. The Mutual Confidentiality Agreement between
the Parties is incorporated and made part of this Agreement as Exhibit D. The
Mutual Confidentiality Agreement is in effect while this Agreement is in effect.
11. Security. Moneyline shall take all responsible and customary
precautions to safeguard the security of data transmitted by it whether over
communication lines, via the postal system or via ACH or other payment networks;
provided, however, Moneyline shall not be responsible for the loss,
confidentiality or security of data or other payment information while in
transmission over communication lines, in the postal system, or in an ACH or
other payment networks over which payments are delivered.
12. Term.
A. The initial term of this Agreement is three (3) years from the
Effective Date. The Agreement shall be automatically renewed
for successive one (1) year terms unless a Party shall give
the other Party written notice of its intent to terminate at
least three (3) months prior to the expiration of the initial
or a renewal term.
B. Notwithstanding paragraph A of this Section 12 of any other
provision of this Agreement, Company may terminate this
Agreement after 60 days if it finds that the parties' systems
are not compatible. In that case, Company must give written
notice to Moneyline within ten (10) business days after the
sixtieth (60th) day of the first Customer going live. Live is
defined as the first day the Moneyline Services system is in
use by a Customer.
13. Cooperation. The Parties agree to cooperate in good faith and
use their efforts to sell the products of both Parties for their mutual
advantage. The Parties will meet periodically to discuss service performance,
service improvement, or any other issues related to the provision of ▇▇▇▇
Payment Services. Such meetings shall be held at least annually.
14. Errors. No Party shall be liable for payment errors, payment
delays, or other performance failures caused solely by software, computer, or
other system defects under the control and responsibility of the other Party.
Action shall be taken by the responsible Party to correct such system defects
within sixty (60) days during the test period or within thirty (30) days
thereafter after knowledge by that Party, or notice from the other Party, of
such defects. In the event that the cause of such defects is partly attributable
to both Parties, corrective action shall be the joint responsibility of both
Parties and the expense of any such corrective action shall be shared.
15. Limitations of Liability.
A. Except for credit risks governed by Section 6 hereof or
indemnification obligations pursuant to Section 17 hereof
which shall not be so limited, liability of either Party as
the result of any act or omission related to this Agreement
shall not exceed six (6) times the average amount of monthly
fees paid by Company to Moneyline (calculated based on the
twelve-month period immediately before the act or omission
that gives rise to the claim of liability). This limitation of
liability does not apply to any loss covered by insurance, in
which case liability is limited to the amount of the insurance
claim paid or payable.
B. Force Majeure. A Party will not be liable for a failure to
perform, or any loss occasioned thereby, arising out of an
event or condition beyond the reasonable control of such Party
and
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having an adverse affect on the performance by such Party
under this Agreement. Such events shall include, but not be
limited to, communications breakdown or interruption, acts of
God, labor disputes, interruption of service by ACH or other
payment networks, and nonperformance by the other Party under
this Agreement. Loss or nonperformance caused by a breakdown
or malfunction of computer equipment under the control of a
Party are not excused, disclaimed or limited under this
Subparagraph B.
C. The Parties will not be liable for punitive, consequential,
indirect, remote or special damages.
D. Moneyline will pay late fees incurred by Customers because of
late payments handled by Moneyline provided the Customer
allowed 10 business days for a payment by check and 4 business
days for an electronic payment.
16. Dispute Resolution.
A. Except as otherwise specifically provided herein, if a dispute
or disagreement arises between the Parties with respect to the
interpretation of any provision of this Agreement, or the
performance by either Party of its obligations under this
Agreement, then one or both of the Parties shall submit such
dispute, disagreement or default in writing to the other Party
specifying the nature of such dispute, disagreement or
default. The Parties shall use their best efforts in good
faith to attempt to resolve such dispute, disagreement or
default, or to negotiate an appropriate modification or
amendment to this Agreement.
B. If the Parties are unable to resolve the foregoing dispute,
disagreement or default on a mutual basis within ten (10)
business days from the date of submission, then the Parties
shall promptly designate in writing one (1) representative
from each of the Parties, to use their best effort in good
faith to attempt to resolve such dispute, disagreement or
default. The foregoing representatives shall meet as often as
they reasonably deem necessary in order to gather and exchange
all applicable information with respect to such dispute,
disagreements or default. Except as provided in Subparagraph 4
of Paragraph 18, neither Party shall be permitted to exercise
any remedies available to such Party under this Agreement
until the earlier of (i) the date that both of the designated
representatives conclude in good faith that an amicable
resolution of the dispute, disagreement or default through
continued negotiation does not appear likely, or (ii) thirty
(30) days following the date that representatives are first
designated in writing by the respective parties.
This Provision will not be construed to prevent a Party from
instituting, and a Party is hereby authorized to institute,
formal proceedings earlier to avoid the expiration of any
applicable limitation period, or to preserve a superior
position with respect to other creditors, or to preserve those
rights under Paragraph 10 regarding confidentiality, or where
a Party in good faith otherwise determines that a breach of
this Agreement by the other Party may cause irreparable harm
from such breach and relief in the form of a restraining
order, injunctive order or other equitable remedy is the only
adequate remedy.
C. The Parties hereby stipulate and agree that if they are unable
to resolve any controversy subject to this Paragraph 16, and
except as otherwise provided in Subparagraph 16.B above, they
will submit the controversy to binding arbitration in Chicago,
Illinois. Such arbitration shall be in accordance with the
Federal Arbitration Act, 9 U.S.C., Section 1 et. seq. and in
accordance with the Commercial Arbitration Rules of the
American Arbitration Association. The parties hereby agree
that reimbursement of the costs of such arbitration, including
attorney's fees, and the costs incurred in connection with
efforts to resolve such dispute
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pursuant to subparagraph 16.B, may be awarded by the
arbitrator(s) based on the arbitrator(s) determination of the
relative responsibility of the parties for such dispute. The
parties hereby further agree to permit the joinder of any
related claim brought by a Financial Institution or Customer
against either the Company or Moneyline so that any and all
such related disputes may be resolved in the same proceeding,
provided that either Moneyline or the Company shall desire
such joinder.
17. Warranties - Cross Indemnification. The Parties hereby warrant
and represent to each other that they have all rights necessary to perform their
respective obligations under this Agreement and that the respective Moneyline
Services and ▇▇▇▇ Payment Services to be provided hereunder shall be conducted
in a professional, workmanlike manner to meet the performance standards provided
in Paragraph 7. EXCEPT AS SPECIFICALLY PROVIDED IN THIS PARAGRAPH, THE PARTIES
MAKE NO WARRANTIES EITHER EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
The Parties shall each indemnify, defend and hold harmless the other
Party from and against any and all claims by third persons (including claims of
Financial Institutions or Customers), together with all damages, demands,
liabilities, costs and expenses, including reasonable attorney's fees and
expenses, incurred by the indemnitee to the extent such claims proximately
result from and are caused by any act or omission of the indemnitor, its
officers, employees, agents or representatives performing on behalf of the
indemnitor hereunder, or arise out of performance (or failure to perform) the
respective Services to be provided by the indemnitor hereunder.
18. Termination. A Party may terminate this Agreement by giving
the other Party three (3) months written notice of termination prior to a term
expiration date as provided in Paragraph 12.
A Party may also at its option terminate this Agreement prior to a term
expiration date upon occurrence of any of the following events ("Events of
Default"):
1. If either Party fails to correct errors or defects under the
conditions and within the period provided in Paragraph 14.
2. If Company fails to pay to Moneyline the fees as required in
Exhibit B ("Fees") and fails to make such payments upon
receipt by Company of Moneyline invoices sent under such
Schedule.
3. Any other material breach by a Party of its obligations under
this Agreement and said Party fails to cure said breach within
one hundred twenty (120) days after written notice from the
other Party; provided, however, that the breaching Party
starts work on the cure promptly and pursues it diligently.
4. Immediately, upon written notice of a Party, when the other
Party becomes insolvent, makes an assignment for the benefit
of creditors, admits in writing an inability to pay its debts
when they become due, or, without notice, files a petition for
bankruptcy or reorganization under Federal or State bankruptcy
laws, or is subject to a proceeding commenced in bankruptcy
which is not vacated or stayed within thirty (30) days.
19. Rights after Termination. Upon termination, all rights and
obligations of the Parties hereunder for the provision of Moneyline Services and
▇▇▇▇ Payment Services shall cease and be of no further effect whatsoever,
provided that any payments by Customers activated prior to termination date but
not completed by termination date shall be carried out in accordance with this
Agreement. Company
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shall be liable to, and shall reimburse Moneyline, for any and all payments made
by Moneyline to Vendors arising out of Customer payment instructions activated
prior to termination date. The continued use or possession by a Party of
proprietary property or Confidential Information of the other Party shall cease
and be immediately returned to the other Party. The provisions of Paragraphs 9,
10, 15, 16, 17 and 19 shall survive termination of this Agreement.
20. Assignment/Guarantee. This Agreement shall be binding on the
Parties and their respective successors and assigns. Company shall not assign
its rights and obligations hereunder without the express written consent of
Moneyline, its successors or assigns. Moneyline, its successors and assigns,
shall not have the right to assign its rights and obligations hereunder, or any
part thereof, without the consent of Company.
21. Notices. Notices may be sent by registered or certified mail,
return receipt requested, or by facsimile transmission followed by overnight
delivery of the original copy addressed to:
Moneyline Express, Inc. nFront, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ S. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: 612/▇▇▇-▇▇▇▇ Tel: 706/▇▇▇-▇▇▇▇
Fax: 612/▇▇▇-▇▇▇▇ Fax: 706/▇▇▇-▇▇▇▇
Attn: Manager, Moneyline Express Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Notices so addressed are effective when received and addresses in this Paragraph
21 may be changed by a Party by prior written notice to the other Party of the
new address and the effective date of such change.
22. General Provisions. This Agreement, together with Exhibits
hereto, constitutes the entire agreement between the Parties and may be amended
only in writing signed by both Parties. The failure of either Party to exercise
or enforce its rights hereunder shall not be deemed as a waiver of such right or
of the power to enforce such right. This Agreement may be executed in
counterparts, all of which taken together constitute one single agreement.
Paragraph headings are for reference and convenience only and are not a part of
this Agreement.
23. Governing Law. This Agreement shall be governed by the laws of
the State of Minnesota.
24. Software License. The Software License Agreement, Exhibit C,
is incorporated and made part of this Agreement.
The Parties have caused this Agreement to be signed and delivered as of
the effective date provided above.
NFRONT, INC. MONEYLINE EXPRESS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
----------------------------- --------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: President Title: Vice President
Date: 7/23/97 Date: 7/25/97
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EXHIBIT A
SERVICES
MONEYLINE EXPRESS, INC. SERVICES
▇▇▇▇ PAYMENT BACK-END PROCESSING
1. Accurate Payment data, including Customer account number and payment
information, provided by Customers in files supplied Moneyline Express,
Inc. will be taken through a batch interface to Company each business
day during the late evening hours (Day 0). The payment transactions
will be processed the following day (Day 1) after the transaction was
initiated by the Customer. On Day 1, Moneyline Express will initiate
ACH debits and credits. Credits may be sent via check, electronic
transmissions, or ACH to vendor payees. All debits and credits are sent
on Day 1.
2. Funds Transfer in accordance with Customer payment instructions
activated in accordance with paragraph 1. Moneyline Express will supply
and transmit to our sponsoring financial institution payment
information for debit against Customer account. The initiation of this
transfer occurs on Day 1. The Customer account is debited on Day 2.
3. Moneyline Express will handle Customer inquiries regarding payments
made on behalf of Customer to Vendor payees. Customer Service is
available from 7 a.m. to 7 p.m. Monday through Friday and Saturday from
8 a.m. to 5 p.m. Central Standard Time.
4. Moneyline Express will provide support at no additional cost; however,
Customer will pay reasonable travel and lodging expenses associated
with installation and on-site support
5. From time to time Moneyline Express may make changes to the system.
Moneyline Express will notify Company in advance of any data changes.
COMPANY
PC HOME BANKING AND ▇▇▇▇ PAYMENT FRONT-END SOFTWARE
1. Company will develop applications software required to operate Home
Banking services which interface to Moneyline Express back-end ▇▇▇▇
payment processing software and other Home Banking services.
2. Support for Company Payment Transactions
Company will, on request by Moneyline Express, cooperate to remedy
Customer account inquiries related to the applications software
provided above.
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EXHIBIT B
FEES
nFront, Inc., agrees to pay fees to Moneyline Express at the following Schedule
of Charges:
SERVICE START UP FEES
Financial Institution Set Up Fee $[++++] per institution
USER FEES
1. Application Fee
$[++++] per
customer - one
time fee to set up
the end user. Fee
includes initial
user kit.
2. Monthly User Fee $[++++] flat fee per
customer per month plus:
Transaction fees per month:
$[++++] up to 250,000
$[++++] 250,001 to 500,000
$[++++] 500,001 to 750,000
$[++++] 750,001 to 1,000,000
$[++++] 1,000,000 and above
3. Distribution of Additional User Kits $[++++] per kit
4. Fee for a copy of a canceled check $[++++] per check
ASSUMPTIONS AND ADDITIONAL PRICING IS AS FOLLOWS:
1. ▇▇▇▇ payment transaction pricing reflects blending of electronic and manual
payments to payees. End user can pay any payee, and the fee schedule reflects
an open payee list.
2. Moneyline would perform customer service support for payment transactions at
a cost of $[++++] per customer.
3. NSF fees will be charged at the rate of $[++++] per occurrence.
4. Stop payments will be charged at the rate of $[++++] per occurrence.
5. The license fee to use our touch-tone system is $[++++].
6. Other services will be negotiated separately.
Monthly Minimums
Month Value
1 - 36 $[++++]
Moneyline may increase fees once every 12 months by [++++] percent or by the
same percentage as any increase in the Consumer Price Index, whichever is less.
THIS INFORMATION IS PROPRIETARY AND CONFIDENTIAL AND IS COVERED UNDER THE
CONFIDENTIALITY AGREEMENT BETWEEN nFRONT, INC., AND MONEYLINE EXPRESS, INC.
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EXHIBIT C
SOFTWARE LICENSE AGREEMENT
1. PARTIES. This Software License Agreement is part of the foregoing
Agreement between Moneyline Express, Inc. ("Moneyline") and nFront,
Inc. ("Company").
2. SOFTWARE. "Moneyline Software" is defined as software that resides on
an NT server and accepts, stores and processes ▇▇▇▇ payment
transactions from Company access devices. Moneyline Software includes
voice software for telephone ▇▇▇▇ payments which will reside on Company
hardware.
3. PURPOSE. This License authorizes Company to use Moneyline Software at
Company's site on its hardware for the purpose of selling any of the
Moneyline Express, Inc. ▇▇▇▇ payment and home banking services to
Company's customers.
4. LICENSE. Moneyline grants to Company a non-exclusive license to use the
Moneyline Software as provided herein. The Software remains the sole
property of Moneyline.
5. CONDITIONS OF THE LICENSE. Without the prior written consent of
Moneyline, Company shall not do any of the following:
(1) Copy the Moneyline Software or manuals or other materials
containing information about the Software;
(2) Reverse compile Moneyline Software or permit any other person
to do so;
(3) Permit any third person to inspect the Moneyline Software,
manuals, or other materials containing information about the
Software;
(4) Transfer the Moneyline Software, manuals or other materials
containing any information about the Software to any third
person;
(5) Make any modifications, additions, or upgrades to the
Moneyline Software.
6. CONFIDENTIALITY. The Mutual Confidentiality Agreement between the
Parties is part of this Software License Agreement. "Confidential
Information" includes the Moneyline Software, manuals, and materials.
7. IDENTIFYING MARKS. Company will not remove or obscure any marks which
identify the Moneyline Software, manuals or other materials as
Moneyline's property. Company agrees to display screens a notice of
Moneyline's intellectual property rights as directed by Moneyline.
8. DISCLAIMER OF WARRANTIES. Moneyline DISCLAIMS ALL WARRANTIES, INCLUDING
ANY WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE. Moneyline makes no warranty against infringement of
patent or intellectual property rights of third parties.
9. INSTALLATION. Company is responsible for installation of the Moneyline
Software.
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10. RISK OF LOSS AND INDEMNITY.
A. Company is responsible for any loss, theft, or damage to the
Moneyline Software, manuals or materials from the time that
they are delivered to the shipper until they are returned to
Moneyline.
B. Moneyline will indemnify Company, its subsidiaries, its
corporate parent, and their directors, officers, employees and
agents for all losses, damages, claims, lawsuits, judgments,
liabilities or expenses (including reasonable attorneys' fees)
which arise from or relate to any claim of infringement of
patent or intellectual property rights of third parties.
11. TERM AND TERMINATION.
A. This License is in effect for so long as the Agreement between
Moneyline and Company relating to home banking ▇▇▇▇ payment
processing and funds transfer services is in effect.
B. Moneyline may terminate this License immediately upon written
notice to Company if Company has materially breached this
License. In addition, either party may terminate at any time
without cause after sixty (60) days advance written notice to
the other party. Upon termination of this License, Company
shall immediately stop using the Software, delete it from all
computers, and promptly certify compliance with this provision
to Moneyline. Company shall promptly return the Software,
manuals and other materials containing information about the
Software to Moneyline at Company's expense.
C. Sections 5, 6, 8, 9, and 11 survive termination of this
License.
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EXHIBIT D
MUTUAL CONFIDENTIALITY AGREEMENT
1. PARTIES. The parties to this Agreement are Moneyline Express, Inc.
("Moneyline") and nFront, Inc. ("Company").
2. CONFIDENTIAL INFORMATION. Company and Moneyline intend to engage in
confidential business discussions concerning a project of mutual
interest to them ("Project"). The parties may disclose to each other
information and materials which may include (but is not limited to) the
following:
- business plans, financials;
- qualitative aspects of the parties' businesses;
- plans, concepts, methods, strategies, management tools,
designs, formats, systems, research, works in process;
- customers, marketing plans;
- policies and procedures, business practices, organization;
- reports, data, figures, statistics, analyses, benchmarks,
compilations, summaries, plans, projections;
- forms, specifications, charts, graphs, tapes, diskettes,
papers, books, records, materials, and information in any
medium.
All of this information is confidential information except as
specifically excepted below. The parties are willing to disclose it to
each other only pursuant to this Agreement.
3. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants that
it has the right to disclose the confidential information to the other
party. Each party agrees to indemnify the other party against any claim
by a third party that the disclosure or use of the information breaches
an agreement between the claimant and the disclosing party.
4. RESTRICTIONS ON USE OR DISCLOSURE. The parties agree that they will not
disclose any information that they receive pursuant to the confidential
business discussions except as is reasonably necessary for the/
purposes of the present discussions, and they will not use the
information except for the purposes of the present discussions.
Specifically, neither party will disclose that it has received
confidential information. Each party will use its best efforts to
ensure that its directors, officers and employees comply with this
Agreement.
5. NOT AN OFFER FOR SALE OR LICENSE. The disclosures made pursuant to this
Agreement are for evaluation purposes only and do not constitute an
offer for sale or license of any kind. The parties' discussions and
involvement in the Project shall not be construed as granting either
party a license under any patents, trade secrets, copyrights,
trademarks, or other intellectual or proprietary rights owned or
controlled by the other party.
6. INFORMATION EXCLUDED. The following is not confidential information:
a. Information which is in the public domain as evidenced by
printed publication or otherwise before it is acquired by a
party;
b. Information which, through no fault of a party, becomes part
of the public domain by printed publication or otherwise after
it is acquired by the party;
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c. Information which a party can show was in its possession prior
to the time of disclosure and was not acquired directly or
indirectly from the other party on a confidential basis; or
d. Information which is rightfully received by a party from a
third party, without obligation of confidentiality, which did
not acquire such information directly or indirectly on a
confidential basis.
7. COURT ORDERS AND SUBPOENAS. A party may disclose confidential
information as required by a court order or subpoena, but the
information remains confidential and subject to this Confidentiality
Agreement. In the event that a party receives a subpoena or other legal
process concerning confidential information of the other party, each
party agrees to notify the other party immediately and to cooperate in
any lawful effort to contest the subpoena or other legal process.
8. MATERIALS. Each party understands and agrees that any writings,
correspondence, memoranda, notes, drawings, sketches, tapes, disks,
data sheets, agent lists, or other documents, and any prototypes, or
any other materials containing any of said information, whether
furnished to a party by the other party or prepared by a party in
connection with the present business discussions, are the sole property
of the party whose information is contained in the materials and must
be kept confidential as provided herein, and delivered to the party
upon its request. Each party further agrees that it will make no copies
or reproductions of any said materials without the express, written
consent of the party that owns the information.
9. REMEDIES. Each party understands that any breach of this Agreement may
cause irreparable harm to the other party. Each party agrees that in
the event of a breach the other party may seek injunctive relief in
addition to its other remedies.
10. TERM. The term of this Agreement is five years.
NFRONT, INC. MONEYLINE EXPRESS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
------------------------------- ------------------------
Name/Title: ▇▇▇▇▇ ▇▇▇▇▇▇▇/President Name/Title: ▇▇▇▇▇ ▇. ▇▇▇/V.P.
Date: 7/23/97 Date: 7/25/97
-12-
13
NFRONT, INC. AND
MONEYLINE EXPRESS, INC.
AMENDMENT TO AGREEMENT
HOME BANKING, ▇▇▇▇ PAYMENT PROCESSING
AND FUNDS TRANSFER SERVICES
This Amendment amends the Agreement between nFront, Inc. ("Company") and
Moneyline Express, Inc. ("Moneyline").
Section 25 is added to the Agreement to read as follows:
"25. GUARANTEED FUNDS. Company may elect to guaranty funds for all ▇▇▇▇
payment transactions of Customers of a financial institution. Funds are
"guaranteed" when Company initiates the debit to a Customer's bank account.
Company shall bear the credit risk associated with ▇▇▇▇ payment transactions and
shall guarantee settlement of all funds associated with said ▇▇▇▇ payment
transactions. Section 6 of this Agreement, "Credit Risk," does not apply when
Company guarantees funds."
NFRONT, INC. MONEYLINE EXPRESS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
------------------ ----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: President/CEO Title: Vice President
-13-
14
[Travelers Express Letterhead]
January 19, 1999
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
nFront, Inc.
Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Assignment of Your Agreement with Moneyline Express to M&I Data
Services
Dear ▇▇. ▇▇▇▇▇▇▇▇,
Moneyline Express, Inc. ("Moneyline") and M&I Data Services, a division
of ▇▇▇▇▇▇▇▇ & Ilsley Corporation ("M&I"), are pleased to inform you that M&I is
purchasing electronic ▇▇▇▇ payment assets of Moneyline's electronic ▇▇▇▇ payment
financial institution customers. After a transition period, M&I will provide
electronic ▇▇▇▇ payment services directly to many of Moneyline's customers.
Under the Moneyline agreement with you mentioned above, Moneyline is
currently providing you with electronic ▇▇▇▇ payment services. ("Agreement"
includes the referenced agreement, including any and all related documents and
agreements, amendments, modifications, renewals, extensions, supplements,
exhibits, schedules and addenda.) In connection with the transaction, Moneyline
and M&I seek your consent to permit Moneyline to assign the Agreement to M&I.
Subject to your consent, M&I has agreed to assume and discharge Moneyline's
payment and performance obligations under the Agreement which arise or are due
after the date you sign this consent. Your obligations under the Agreement
arising after your consent would be to M&I.
Please indicate your consent to and agreement with the terms of this
letter by executing each of the three (3) copies enclosed and by returning two
(2) originally-executed copies of this letter within ten (10) days to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Moneyline Express, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
For your reference, thereafter, all future notices and communications
to M&I Data pursuant to the Agreement should be sent to the following address:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BD2E
M&I Data Services
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
15
January 19, 1999
Page 2
If you have any questions for M&I, please contact ▇▇▇ ▇▇▇▇▇▇▇ at (414)
357-3551. If you have any questions for Moneyline, please contact ▇▇▇ ▇▇▇▇▇▇▇▇▇
at (▇▇▇) ▇▇▇-▇▇▇▇. Thank you very much for your prompt consideration.
Sincerely,
MONEYLINE EXPRESS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
M&I DATA SERVICES
By: /s/ By M&I Data Services
----------------------------------
The undersigned hereby consents to the assignment of the Agreement by
Moneyline to M&I, and to M&I's assumption and agreement to pay, perform in
accordance with the terms of, and be bound by, the covenants, terms, and
obligations under the Agreement arising and to be performed by Moneyline on or
after the date below.
EXECUTED as a sealed instrument this 8th day of February, 1999.
[NAME]
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
(Please type or print)
Company: nFront, Inc.
------------------------------
Title: President
--------------------------------
16
02/04/99
Confidential Information
nFront credit risk contract addendum
AMENDMENT TO THE AGREEMENT BETWEEN NFRONT AND MONEYLINE EXPRESS:
The following language replaces Item 6: Credit Risk in the Agreement dated July
25, 1997:
CREDIT RISK
(FUNDS NOT GUARANTEED)
1. CONSUMER ACCOUNTS. Between the parties, MLE bears the credit risk
associated with potential Non Sufficient Funds ("NSF") or return items
for all consumer demand deposit accounts.
2. BUSINESS ACCOUNTS. Between the parties, MLE bears the credit risk
associated with potential NSF or return items for business demand
deposit accounts only when the following condition is met: MLE's total
exposure for the entire time this Agreement is in effect is limited to
a maximum loss of:
- $1,000.00 per business account that has been open with the
financial institution for less than one year and
- $2,500.00 per business account that has been opened with the
financial institution for one year or longer.
3. PAYMENT CAP. Each payment is capped at $9,999.00. MLE may change the
cap from time to time. The financial institution may choose to modify
the payment cap for Consumer Accounts, Business Accounts, or individual
end users. Written notification must be received by MLE from the
financial institution. Financial Institution will bear the credit risk
for all payments in excess of $9,999.00 for consumer accounts and/or in
excess of the liability limits outlined for Business Accounts should
the Financial Institution choose to modify the payment cap.
4. RISK REDUCTION MEASURES. MLE may at its option implement features to
reduce credit risks. These may include but are not limited to
pre-authorized drafts for business customers, verifying funds through
an ATM network, and separating debits from credits so that payments are
not sent until after good funds are received.
5. CONTRACT INCLUSION. nFront agrees to include the credit risk parameters
shown above in the agreements between it and its clients.
COMPANY: MLE:
NFRONT, INC. MONEYLINE EXPRESS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
---------------------- ----------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: President & COO Title: Vice President
Date: 2/4/99 Date: 2/4/99