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SECURE NETWORK SERVICES AGREEMENT
(CREDIT UNION CLIENT)
This Secure Network Services Agreement is between Cavion
Technologies, Inc., a Colorado corporation doing business as ▇▇▇▇▇▇.▇▇▇
("Cavion"), and --------------- ("Client"). Cavion offers a variety of
data connectivity services ("network services") through Cavion's CUiNet(R)
network. CUiNet is a secure interactive network for electronic
communications and commerce among credit unions, their members, leagues,
service organizations and vendors of services to credit unions. This
agreement governs Client's use of CUiNet and the network services selected
on the attached Services Schedule.
It is agreed as follows:
1. SERVICES. Client subscribes for the network services selected on the
attached Services Schedule. Cavion will contract with a local
telecommunications provider to establish and maintain a connection from
Client's data processing and associated equipment ("Client's equipment")
to CUiNet. Upon mutual agreement of the parties, the Services Schedule
may be modified or additional Services Schedules may be added at any time
to add or reduce services or telecommunications bandwidth. Cavion
reserves the right to discontinue services included in the Services
Schedule, upon at least 60 days notice to Client.
2. FEES. The fees for access to CUiNet and for each network service are
as described in the Services Schedule. In addition to the listed fees,
Client will pay any applicable sales, use, value-added, personal property
or similar taxes. The non-refundable set-up fee is due one-half upon
execution of this agreement and one-half upon receipt of invoice from
Cavion after activation of the network connection. Monthly recurring fees
will begin upon commencement of service, and are due upon receipt of
invoice from Cavion. Fees for additional services or telecommunications
bandwidth will begin upon commencement of the new or upgraded service.
Monthly fees for discontinued services will not be prorated. Fees may be
increased for any renewal term of this agreement, upon notice to Client at
least 60 days prior to the end of the current term. Fees may also be
increased on an annual basis to reflect changes in the All-Urban Consumer
Price Index as published by the Bureau of Labor Statistics. Failure to pay
any fees on time may result in suspension of service.
3. SET-UP OF THE SERVICES.
3.1 Any network servers, routers and other equipment paid for by
Client as part of the set-up fees are described in the attached Equipment
Schedule. This equipment belongs to Client, and Client is responsible for
insuring this equipment, whether located at a Client facility or a Cavion
facility. All other equipment associated with CUiNet and Client's
connection to CUiNet is owned or leased by Cavion, whether located at a
Client facility or a Cavion facility. Title and risk of loss to any
equipment purchased by Client will pass to Client upon delivery to the
shipping carrier. Cavion retains a security interest in equipment
purchased until final payment of the set-up fees. Client is responsible
for equipment installation and wiring at Client's facility, with
assistance from Cavion engineering staff. Equipment is deemed accepted
upon the first successful use of the network.
3.2 Cavion will complete the interface between Cavion's network
services software and Client's host data processing software (if required
for the network services selected by Client). Client will cooperate with
this process, including providing access to Client's technical personnel
and host data processing vendor. Any fees of the host data processing
vendor associated with completing this interface are the responsibility of
Client.
4. NETWORK OPERATIONS.
4.1 Client is responsible for the design of, and maintaining the
content of, Client's web site (if any). Upon request, Cavion will refer
Client to a web site design consultant. If transactional services are
selected, Client is responsible for validating the transactions of its
members, including assigning passwords. Client is solely responsible for
providing support to its members regarding their use of CUiNet and the
network services.
4.2 Cavion will provide telephone support to Client during regular
business hours at the nearest Cavion staffed facility. Emergency support
is available 24 hours per day, 365 days per year. Cavion will maintain,
administer and upgrade the network as appropriate (in Cavion's judgment)
for effective network operations. Should an upgrade of the network
require upgrade of Client's equipment or software to remain compatible,
the upgrade of Client's equipment or software will be Client's
responsibility.
4.3 Cavion will maintain the network connection equipment provided
to Client's facility under this agreement, whether the equipment belongs
to Client or Cavion. However, Client is responsible for maintaining an
appropriate operating environment and restricting access to the connection
equipment. Cavion relies on Client to promptly notify Cavion of any
problem affecting Client's connection to the network, and to cooperate
with Cavion (including providing access to Client's facility and technical
personnel) as needed to correct any such problem.
4.4 CUiNet uses standard telecommunication links and standard
network server technology. While expected to be minimal, unscheduled
temporary service disruptions cannot be completely eliminated. Network
service will also be limited or interrupted from time to time for
scheduled maintenance, network expansion, upgrades or other administrative
purposes. Cavion will make commercially reasonable efforts to notify
clients in advance of scheduled downtime, and to limit scheduled downtime
to off-peak hours.
4.5 Cavion reserves the right to monitor CUiNet traffic as
appropriate (in Cavion's judgment) for proper operation of the network and
as otherwise required or permitted by law. However, Cavion does not have
the practical ability to control the conduct of users of the network and
assumes no liability for such conduct.
5. STANDARDS OF USE. Client will use CUiNet and the network services,
and will permit the use of CUiNet and the network services, only in a
manner that is lawful, consistent with the rights of other users and third
parties, in keeping with accepted Internet etiquette, and not disruptive
to the operations of the network. Except for the limited access provided
to members of Client as end users of the network services, Client will
provide access to the network or the Internet only to its employees,
independent contractors and examiners, and only from equipment located at
Client's facilities. Client will communicate the restrictions described
in this section to anyone to whom it provides access. Vendors who use the
network to provide services to Client or its members must do so by
agreement with Cavion. Client agrees to comply with any rules and
policies posted on CUiNet's web server that are generally applicable to
users of CUiNet or a network service. Material breach of this section
will be cause for immediate suspension of service or termination of this
agreement.
6. INTERNET ENVIRONMENT. Client acknowledges that (a) the availability,
performance, reliability, legality and appropriateness of resources
accessed through the Internet are beyond the control of Cavion, and (b)
there can be no assurance of privacy with respect to data sent or received
across the Internet in unencrypted form.
7. SECURITY. Cavion will take commercially reasonable steps to ensure
that network services sessions accessed from the Internet, and CUiNet
interfaces to the Internet, are protected using network firewalls,
encryption, and/or other appropriate security measures. Client is
responsible for (a) the security of network equipment located at Client's
facility, and (b) safeguarding any passwords or other validation
information assigned to Client or Client's users. In addition, while the
private telecommunication circuits between Client's facility and CUiNet
provide physical security for Client's unencrypted network traffic, these
circuits are owned and operated by telecommunications providers and Cavion
does not guarantee their security.
8. LIMITED WARRANTIES.
8.1 Except as described in section 4.4, CUiNet will be online and
available 24 hours per day, 365 days per year. Each network service will
be capable of performing the functions described in the online
documentation associated with the service, for the term of this agreement,
provided the service is used with an approved web browser and otherwise in
accordance with the documentation. Cavion does not guarantee that
operation of CUiNet or the network services will be uninterrupted or error-
free. Cavion is not responsible for network unavailability caused by
Client's equipment, equipment of Client's members, telecommunications
circuits or the Internet. Client is responsible for selecting which of
the telecommunications circuits offered by CUiNet will be used, and for
the adequacy of the telecommunications circuit to carry Client's traffic
over CUiNet. Warranty protection for equipment sold to Client under this
agreement will be as provided by the equipment manufacturer.
8.2 Claims for breach of this warranty should be submitted in
writing, including as much detail as possible concerning the circumstances
of the problem. If Cavion is unable to correct the problem (with Client's
cooperation) within 30 days, Cavion will refund the monthly charges
relating to the service in which the problem is experienced, prorated for
the affected period.
8.3 This section sets forth Cavion's exclusive warranties with
respect to the performance of CUiNet and the network services. Cavion
disclaims any other warranties, express or implied, including any
warranties of merchantability, fitness for any particular purpose, title,
authority or noninfringement. These warranties are exclusively for the
benefit of Client, and are not transferable without Cavion's prior written
consent.
9. LIMITATION OF LIABILITY. Client is exclusively responsible for all
financial risks associated with access to and use of CUiNet and the
network services by Client's members, including validation of all
transactions. In no event will Cavion be liable for lost data, lost
profits, or any other incidental, consequential or exemplary damages, even
if Cavion is aware of the possibility of such damages. In no event will
Cavion's liability for any claim related to this agreement exceed the
amount paid by Client under this agreement during the six months prior to
the claim, except in the case of Cavion's gross negligence or willful
misconduct.
10. OWNERSHIP AND LICENSE.
10.1 "Cavion technology" means all inventions, designs, software and
intellectual property of any kind used in the operation of CUiNet and the
network services, including all portions and complete or partial copies
thereof, all derivatives, modifications and enhancements thereof, and any
documentation associated therewith. "Cavion technology" does not include
Client's host data processing software. Cavion owns or licenses from
third parties all Cavion technology.
10.2 Cavion hereby grants to Client, during the term of this
agreement and subject to the provisions of this agreement, a nonexclusive
nontransferable license (a) to use the Cavion technology (other than the
network services software) for the purpose of connecting to, and
transmitting and receiving data across, the network as contemplated by
this agreement, and (b) to use any network services software subscribed
and paid for under the Services Schedule to access, employ and make
available to Client's members the corresponding network services. This
license does not include rights to (a) use the Cavion technology for any
other purpose, (b) modify, translate, or merge any network services
software with another program, (c) create a derivative work based on the
Cavion technology, or (d) sublicense or transfer the Cavion technology to
any third party (except for the implied sublicense to Client's members to
use the network services as contemplated by this agreement). Client will
not reverse-engineer, disassemble, decompile, or make any attempt to
discover the source code of the network services software. Client will
not copy the network services software, except for temporary browser-
embedded copies as required to run the software. All rights not
explicitly granted to Client under this section are reserved to Cavion.
10.3 Cavion hereby grants to Client, during the term of this
agreement and subject to the provisions of this agreement, a nonexclusive,
nontransferable license to use the CUiNet name and any materials
concerning CUiNet provided by Cavion, for the purpose of promoting the
network and the network services.
11. CONFIDENTIALITY.
11.1 "Confidential information" means any and all confidential
business information concerning either party that is disclosed to the
other party in connection with this agreement, including all confidential
information disclosed to Client concerning Cavion technology and including
the terms of this agreement. Any confidential financial information of
Client's members to which Cavion has access as network administrator will
be treated as confidential information of Client. "Confidential
information" does not include information which the recipient can show (a)
is public (other than through the recipient's actions), (b) was rightfully
disclosed to the recipient by a third party, or (c) was independently
developed by the recipient. Information that is not otherwise
confidential will not be treated as confidential merely because it is
disclosed under this agreement.
11.2 Each party (and its employees and agents) (a) will use the same
degree of care (and at least a reasonable degree of care) to prevent the
unauthorized disclosure or use of confidential information as it uses to
protect its own confidential information of a similar nature, and (b) will
immediately notify the disclosing party upon discovery of any loss,
unauthorized disclosure, or unauthorized use of confidential information.
11.3 Upon termination of this agreement, or at any time upon the
request of the disclosing party, the recipient will promptly return or
destroy all confidential information in any form (including computer
media), and the recipient will not retain any copies of confidential
information in any form. Notwithstanding the preceding sentence, Cavion
may keep archival copies of network traffic as required in Cavion's
discretion for proper operation of the network. Cavion will not be
required to return or destroy these copies, but will continue to treat
them as confidential information under this section as long as they are
retained.
11.4 Any breach of this section will cause the disclosing party
irreparable harm for which it cannot be adequately compensated in damages.
The disclosing party will therefore be entitled, in addition to any
remedies otherwise available, to injunctive and other equitable relief,
without posting bond, to enforce this section and to prevent any breach of
this section. The provisions of this section will survive termination of
this agreement for the longest of the following: (a) two years, (b) in the
case of archive copies as described in the preceding subsection, any
period for which Cavion retains such copies, or (c) in the case of any
trade secret, as long as such information remains a trade secret.
12. INDEMNITIES. Each party indemnifies the other (and its affiliates
and agents) against all loss, liability or expense (including reasonable
attorney and witness fees and expenses) arising out of any claim that
materials of the indemnifying party infringe the patent, copyright,
trademark or trade secret rights of any third party. For this purpose,
"materials" of a party means any technology or content supplied by that
arty for use or publication on the network or the Internet. Client
indemnifies Cavion (and its affiliates and agents) against all loss,
liability or expense (including reasonable attorney and witness fees and
expenses) arising out of any use of the network, the network services or
the Internet by anyone to whom Client provides access. In each case, the
indemnity is subject to the conditions that:
(a) the indemnifying party is notified of the claim in a timely
manner;
(b) the indemnified party provides all reasonable assistance to
defend against the claim at the indemnifying party's expense; and
(c) the indemnifying party is given control of the defense and
settlement.
If any materials are held or are believed by the indemnifying party
to infringe, the indemnifying party will have the option, at its
expense, to (a) modify the materials to be non-infringing, (b) obtain
for the indemnified party the right to continue using the materials,
or (c) terminate the use of the materials under this agreement. The
provisions of this section will survive termination of this agreement
for a period equal to the statute of limitations governing the
indemnified claim, and will continue to apply to any claim filed
within that period.
13. Term and Termination.
13.1 The term of this agreement will be for three years from the date
hereof. Thereafter, this agreement will automatically renew for
additional three year periods unless (a) terminated by either party by
notice at least 60 days prior to the renewal date, or (b) replaced by a
new agreement governing access to CUiNet and the network services.
13.2 During the first 60 days of the initial term, Client may
terminate this agreement upon notice to Cavion, if (a) Client is
dissatisfied in any material respect with the performance of CuiNet or the
network services, and gives notice to Cavion specifying the nature and
circumstances of the dissatisfying performance with as much detail as
practical, and (b) Cavion (with Client's cooperation) has not resolved the
issue to Client's satisfaction within 60 days after the notice of
dissatisfaction.
13.3 Either party may terminate this agreement upon notice to the
other:
(a) if the other party materially breaches any of its
obligations under this agreement and such breach is not cured within 60
days after notice thereof; or
(b) if insolvency proceedings pursuant to any federal or state
law are filed by the other party, or are filed against the other party and
not dismissed within 60 days; if substantially all of the assets of the
other party are transferred to an assignee for the benefit of creditors, a
receiver or a trustee in bankruptcy; if the other party is adjudged
bankrupt; or if the other party ceases to carry on business.
13.4 Termination of this agreement will not be exclusive of any other
remedy available under this agreement or applicable law. Upon
termination, each party will promptly make any payments owed to the other
party. Cavion will reasonably cooperate with Client in the transfer of
Client's domain hosting, if any. Monthly network services fees will not
be prorated. Access to the network and network services will be
discontinued upon termination. Within 30 days after termination, each
party will return (or will provide reasonable access to its facilities for
the other party to retrieve) any equipment in its possession that belongs
to the other party.
14. DISPUTES. Except as otherwise agreed, any dispute concerning this
agreement will be resolved as follows:
14.1 If either party believes that a dispute cannot be resolved by
informal negotiation, the matter will be submitted to mediation. The
parties will agree upon a neutral impartial mediator experienced in the
field of interactive electronic networks. At the commencement of the
mediation, the parties will agree upon (a) a procedure for exchange of
information related to the dispute, and (b) ground rules and a schedule
for conducting the proceeding before the mediator.
14.2 If a dispute is not settled pursuant to mediation within the
agreed time period, or if any party will not participate in the mediation,
the dispute will be submitted to binding arbitration in Denver, Colorado,
in accordance with the rules of the CPR Institute for Dispute Resolution.
The arbitration will be by a single arbitrator (or, if the amount in
controversy is greater than $50,000, by three arbitrators, none of whom
will be appointed by either party) experienced in the field of interactive
electronic networks. The arbitration will be governed by the United
States Arbitration Act, and judgment upon the award may be entered by any
court having jurisdiction thereof. The arbitrators will not be empowered
to award damages in excess of actual damages, but will be empowered (not
required) to require any party to pay the reasonable attorney fees, expert
witness fees, and other arbitration costs of any other party.
14.3 Except as specified in section 11.4, the procedures described in
this section will be the exclusive procedures for the resolution of
disputes; provided, however, that either party may seek preliminary
judicial relief in Denver, Colorado, if in the judgment of that party such
relief is necessary to avoid irreparable damage. Despite the initiation
of any such judicial proceedings, the parties will continue to participate
in good faith in the mediation or arbitration. Any cause of action either
party may have with respect to this agreement will be barred unless it is
commenced within one year after the cause of action arises, is discovered,
or should have been discovered with the exercise of reasonable diligence.
15. GENERAL.
15.1 The parties are independent contractors. Neither party is an
agent or partner of the other, or has the right to incur any obligation on
behalf of the other. Each party may use the other's name and trademarks
only with the other's prior written consent (except that Cavion may use
Client's name in any listing of CuiNet clients). Upon termination of this
agreement, all use of such names and trademarks will immediately be
discontinued, and each party will return to the other all promotional
materials and other items bearing the other's name or trademarks that are
in its possession.
15.2 Neither party will be liable for any delay or failure in its
performance under this agreement (except for payment obligations) directly
or indirectly due to acts of the other party or its agents, or to causes
beyond the control of the delaying party (including equipment failure,
utility failure, casualty, emergency conditions, acts of governmental
authorities, labor disputes, and acts of suppliers, telecommunications
providers or other third parties).
15.3 Notices under this agreement will be in writing and will be
effective when received by certified mail, overnight courier or hand
delivery to the address set forth below (as may be changed from time to
time by written notice). Refusal to accept delivery will be deemed
receipt.
15.4 This agreement will be binding upon the assigns and successors
in interest of Cavion and Client. Either party may assign this agreement
to an affiliate, or as collateral for financing purposes, and Cavion may
assign this agreement to a purchaser of CUiNet, without the consent of the
other party. Neither party may otherwise assign this agreement without
the other party's written consent, which will not unreasonably be
withheld.
15.5 This agreement is governed by the laws of the State of Colorado.
No provision of this agreement may be waived or modified except in writing
signed by Client and Cavion. This agreement (including the Services
Schedule as modified by the parties from time to time) is the entire
agreement between the parties as to its subject matter, and supersedes any
other communications between the parties. This agreement may be executed
in counterparts, each of which will constitute an original. If any
provision of this agreement is found to be invalid or unenforceable, such
provision will be modified (in the affected jurisdiction) to the minimum
extent required, and the remainder hereof will not be affected.
IN WITNESS WHEREOF, the parties have executed this Secure Network
Services Agreement as of the date written below.
-----------------------[Client] CAVION TECHNOLOGIES, INC.
By:---------------------------- By:---------------------------
Title:------------------------- Title:------------------------
Address: Address:
------------------------------- Cavion Technologies, Inc.
------------------------------- ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
------------------------------- ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------- Attn: President
------------------------------- Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------- Voice: ▇▇▇-▇▇▇-▇▇▇▇
Date: ------------------------
SERVICES SCHEDULE TO
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SECURE NETWORK SERVICES AGREEMENT
1. Description of Services
Client subscribes for the network services indicated by checking the boxes
below:
--- SECURE ISP SERVICES
This service provides unlimited Internet access for Client and
Client's employees, at the bandwidth selected by Client. The service
includes access to CUiNet, network address translation, unlimited e-
mail for Client's employees, and (if applicable) hosting of Client's
web site. Upon request, Cavion will register Client's domain name,
and will refer Client's web site design to a web site design
consultant.
--- SECURE FORMS SERVER
This service enables Client's members to provide encrypted data (such
as loan or credit applications) using online forms in a secure area
of Client's web site. Cavion's secure forms server is firewall
protected.
--- SECURE INTERNET TRANSACTIONAL BANKING SERVICES
This service enables Client's members to retrieve account information
and perform a variety of interactive account transactions via the
Internet. Cavion's secure transactional banking server is double
firewall protected.
--- INTERNET BANKING "PULL" ADVERTISING
This service enables Client to target online advertising of specific
services to members not currently using those services, as part of
Client's Internet Transactional Banking user interface.
--- SECURE INTERNET ▇▇▇▇ PAYMENT SERVICES
This service enables Client's members to set up and modify online
▇▇▇▇ payment through a third party settlement agent, via the
Internet. Cavion's secure Internet ▇▇▇▇ payment server is firewall
protected.
--- KIOSK SOFTWARE
This service allows Client to set up remote kiosks (with hardware
provided by a third party vendor) to provide general service
information concerning Client, or to provide member account
information and enable interactive account transactions.
2. Pricing Summary
Client agrees to pay the following fees in connection with the Secure
Network Services Agreement:
[add pricing information]
EQUIPMENT SCHEDULE TO
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SECURE NETWORK SERVICES AGREEMENT
Client's set-up fees described in the Services Schedule include purchase
of the equipment described below:
[list purchased equipment]