1
CONFIDENTIAL TREATMENT* EXHIBIT 10.11
* 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.
May 2, 1997
First Commerce Bank
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Ladies and Gentlemen:
This letter agreement (the "Agreement") will confirm our understanding
with respect to the ongoing business relationship between nFront, Inc., a
Georgia corporation (the "Company"), and First Commerce Bank, a national bank
(the "Bank").
1. Internet Banking Services. The Company shall provide certain
Internet Banking services, as described herein, to the Bank on the following
basis:
(a) April 1997. During April 1997, the Company shall
provide the Bank the services outlined on Schedule A attached hereto in
consideration of a payment of $[++++], payable on or before April 30,
1997.
(b) May and June 1997. On or before April 30, 1997, the
Company shall provide the Bank a development project outline that
identifies development projects to be undertaken by the Company on the
Bank's behalf in May and June, 1997. On or before May 1, 1997, the Bank
may elect either to (i) pay a development fee of $[++++] per month for
each of May and June, 1997, such monthly payments to be due on or
before the first day of each such month, and such development fees to
be used and accounted for by the Company in the same manner as the
development work undertaken by the Company on behalf of Bank during the
first calendar quarter of 1997 (such development fees paid for May and
June 1997, together with the $[++++] paid pursuant to Section l(a)
hereof, are referred to herein as "Development Fees"); (ii) engage
Company to undertake development work on its behalf on a project by
project basis at the current hourly rate of $75.00 per hour, with a
monthly minimum of 100 hours; or (iii) license software products from
the Company on such terms and rates as are then offered to other banks
by the Company generally.
(c) July 1997 and Thereafter. Commencing on July 1, 1997
and thereafter, until terminated by either the Company or Bank in
accordance herewith, the following provisions shall be operative:
(i) Bank shall pay an annual software
maintenance fee of $[++++], which maintenance fee shall not
increase until such time as the Company has no further royalty
obligations pursuant to Section 5 hereof, whereupon such
annual maintenance fee may be increased by the Company;
provided, however, such increase shall not exceed [++++]% of
the prior annual fee. The annual fee increases will be within
Industry Standards. The annual software maintenance fee shall
be payable annually in advance beginning July 1, 1997.
(ii) The Company shall continue to provide to the
Bank Internet service and support for $[++++] per annum, this
amount to be adjusted upward or downward by the Company based
on changes in level of service and ability along with changes
in the industry. If the Bank elects to use another provider
for these services or elects to bring these services in house,
no further annual Internet fee will be due the Company
hereunder. If the Bank elects to move the Internet software in
house, the Company will develop, for the Bank's approval, a
project plan and cost structure to accomplish the move.
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First Commerce Bank
May 2, 1997
Page 2
(iii) The Bank shall be obligated to utilize at
least 100 hours per month of additional maintenance and/or
product development services of the Company, such services to
be provided at the rate of $[++++] per hour. With at least two
months notice to the Company, the Bank may modify its monthly
hours commitment under this Section 1(c). Hours actually spent
by the Company's personnel on behalf of the Bank will be
summarized in a monthly accounting report. Any hours in excess
of 100 (but not to exceed 300) will be billed on a monthly
basis to Bank at the rate of [++++]% of the then hourly
maintenance rate of the Company. The company will keep its
then hourly rate within Industry Standards.
(iv) The Company will host Bank at ▇▇▇.▇▇▇▇▇.▇▇▇
Maintenance services and Internet services and support pursuant to this Section
1(c) shall be as outlined on Schedule B attached hereto.
2. Support of Bank Personnel. On or after July 1, 1997, the Bank
has a right to hire personnel to maintain and modify the "non-transactional"
nBank Internet banking center. Such personnel, however, will be trained by the
Company, which training time will be billed in the manner contemplated by
Section l(c)(iii). The Bank, with the Company's approval which will not be
unreasonably withheld, may hire a full time nBank person whose activities will
be managed by the Company for a managerial fee to be quoted by the Company,
which fee shall be competitive with the market for similar management and
consulting services.
3. Termination. This Agreement shall continue until terminated in
the manner set forth below:
(a) Either party may terminate this Agreement immediately
upon written notice to the other party if there is a material breach of
this Agreement by the other party, and such breach remains uncured for
a period of 30 days following written notice to the other party setting
forth the nature of the breach in reasonable detail.
(b) Either party may terminate this Agreement immediately
upon written notice to the other party if (i) a petition of bankruptcy
is filed (or other commencement of a bankruptcy or similar proceeding
shall have occurred) against the other party without its consent under
applicable bankruptcy, insolvency, or similar laws as now or hereafter
in effect, and such proceeding is not dismissed within sixty days
thereafter; (ii) the other party consents to the institution of
bankruptcy or insolvency proceedings against it or files a petition,
answer or consent seeking reorganization or relief (other than as a
creditor) under the U.S. Bankruptcy Code or any other federal or state
law relating to bankruptcy or insolvency; (iii) the other party
consents to the appointment of a receiver; (iv) the other party makes
an assignment for the benefit of its creditors; or (v) the other party
admits in writing that it is unable to pay its debts generally as they
become due.
(c) The Bank has a right to terminate this relationship
if the Company fails to provide the quality of site development work,
uptime and responsiveness to request as is equal to the market standard
for top quality and such failure shall continue for a period of 30 days
following written notice by the Bank to the Company setting forth the
nature of such failure in reasonable detail.
(d) All other termination provisions are included in the
License and Maintenance Agreement dated July 16, 1996.
4. Change in Control of the Company. If the Company experiences a
change in control, or enters into an agreement that has the effect of a change
in control, then the Company. must either (i) pay to the Bank, within 90 days
after such change in control, an amount equal to the maximum amount that would
then be payable as a royalty to the Bank pursuant to Section 5 hereof or (ii)
deliver to the Bank a copy of its then current source code necessary to operate
the Bank's Internet site; provided, however, such delivery shall be made
pursuant to a license
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First Commerce Bank
May 2, 1997
Page 3
whereby the Bank shall be limited in its use of such source code to applications
relevant to the Bank's internal use only. If the Company elects to so transfer
such source code to the Bank, the Company shall be available to assist the Bank
in accomplishing same in accordance with a project plan and cost structure to be
mutually agreed upon by the parties. "Change in control" shall mean a change in
ownership of the Company such that persons other than the current owners of the
company, or their respective affiliates, own equity interest in the Company
possessing in excess of 50% of the voting power of all such outstanding equity
interests, or do not have the free and unrestrained ability to vote their
interest. In addition, should the Company cease conducting all business
operations, the Bank shall have the right to secure such source code, subject to
the limitation identified above.
5. Royalty Payments to Bank. The Company hereby agrees to make a
royalty payment to the Bank equal to 10% of all license fees received by the
Company in consideration of the licensing of Internet banking products described
on Schedule C attached hereto; provided; however, in no event shall aggregate
royalty payments pursuant hereto exceed the sum of $160,000 plus the aggregate
amount of Development Fees paid by the Bank to the Company pursuant to Section
l(a) and (b) hereof (such sum referred to herein as the "Royalty Cap"). The
Company shall be obligated to make a payment to the Bank equal to the unpaid
amount of the Royalty Cap in the event that the Company shall receive a cash
infusion, whether by way of equity or debt investment, of $2.2 million or
greater at any time during the term hereof, whereupon this royalty obligation
shall be extinguished.
6. Miscellaneous. The Company and the Bank agree to cooperate in
an effort to (i) move the "ISP Project" to the Bank and (ii) to relocate the
Bank's training center equipment to a mutually agreed upon location. The manner
in which, and compensation payable to Company for, the accomplishment of these
projects are to be mutually agreed upon by the Bank and the Company. The Bank
will continue to be responsible for the T-1 and rent until the first to occur of
the ISP relocation or September 31, 1997. During the term of this Agreement,
fees and charges payable by the Bank to the Company shall generally be no less
favorable to the Bank than such fees and charges as would be payable by any
other community bank contracting with the Company for similar services or
products under circumstances in which the Company has not elected, for marketing
or other reasons, to reduce its fee structure in order obtain a new client or a
particular business opportunity.
7. Entire Agreement. This Agreement, together with the License
and Maintenance Agreement dated July 16, 1996, constitute the entire agreement
among the parties and supersedes any prior understandings, agreements or
representations by and among the parties, written or oral, to the extent they
related in any way to the subject matter hereof.
8. Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
parties hereto. No waiver by any party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
9. Georgia Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Georgia without giving
effect to any choice or conflict of law provision or rule that would cause the
application of any laws of any jurisdiction other than the State of Georgia.
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First Commerce Bank
May 2, 1997
Page 4
If the foregoing correctly sets forth our understanding with respect to
these matters, please indicate your acceptance thereof in the space provided
below whereupon this letter and your acceptance shall constitute a binding
agreement between us.
Very truly yours,
nFront, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Its: President
---------------------------
Accepted and agreed as of
the date first above written
FIRST COMMERCE BANK
By: /s/ ▇.▇. ▇▇▇▇
------------------------
Its: EVP
------------------------
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SCHEDULE A
Description of Services to be Provided in April 1997
TASK DESCRIPTION
---- -----------
ISP Setup beta customers, and email.
Holiday Site Easter
Survey Our list of questions has been given to ▇▇▇▇▇ for
approval, revision. Awaiting procedures
Web TV Site is done. ASP detection script.
Site registration nBank re-registration at search engines (nBank Is at
Yahoo now) Altavista, Excite, Infoseek, Webcrawler,
Lycos
Mortgage rates Daily updating of mortgage rates
Checking + Rates Monthly updating of Checking + Rates
Web tracking research Capture and provided initial Web site traffic reports
DELL orders Negotiated Price and ordered DELL, Server, and PCs
nBank marketing Discussion and participation in nBank marketing
meeting
▇▇▇▇ Pay Technical review - ▇▇▇▇▇
nBank guest book Built guest book for the nBank site
Guest book to access database and admin site
Guest book to SQL
CD Loan DEV File layouts / importer development
Award entries Submitted entries in 7 categories for the On-line
Banking Association's, On-line Banking Excellence
award ceremony
Customer Service Handled service calls regarding accessing secure
pages
Training nBank/nFront overview for ▇▇▇▇▇ Pass
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SCHEDULE B
Description of Software Maintenance and
Internet Service and Support
Software Maintenance includes:
- New software releases
- Application updates
- Mandatory federal regulatory compliance
- Malfunction remedies ("Bug Fixes")
- Documentation maintenance
- Remote diagnostics
- Service desk and dispatch
- Non-chargeable user error remedies
It is the policy of nFront to provide improvements to the Software and
to assist the Customer in its duty to comply with mandatory federal
governmental regulations applicable to the data utilized in the
Software. nFront reserves the right to discontinue support of previous
versions of Software one hundred eighty (180) days after the
availability of a new release. Failure of the Customer to install
Software releases or any other correction or improvement provided by
nFront shall relieve nFront of responsibility for the improper
operation or any malfunction of the Software as modified by any
subsequent correction or improvement, but in no such event shall any
fees paid (or to be paid) by Customer be returned to Customer, and
nFront shall be released thereafter from its obligation to support the
Software as provided herein.
Internet Service and Support includes:
- Incoming Internet access for consumers to access nBank.
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SCHEDULE C
Description of Internet Banking Products
Subject of Royalty Obligation
- Balance Inquiry
- Funds Transfer
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SCHEDULE D
DOMAIN BRANDING
This service will provide hosting and SSL keys for ▇▇▇.▇▇▇▇▇.▇▇▇.
nFront, Inc. will handle DNS service for the above domains.
The fee for this service is $[++++] per year.
nFront, Inc. will handle the SSL key registration and annual renewals. This
pricing model assumes that SSL key renewal costs remain at current prices. In
event of a SSL Key renewal price increase, the increase will be passed on to
First Commerce Bank.
nFront, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Its: President
-----------------------------
Date: 8/18/97
-----------------------------
First Commerce Bank
By: /s/ ▇.▇. ▇▇▇▇
-----------------------------
Its: EVP
-----------------------------
Date: 8/22/97
-----------------------------
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EXHIBIT 1-A
SOFTWARE APPLICATIONS
Server Applications
- nBusiness On Line Software (See Attached Description)
Fees for the foregoing application are listed in Exhibit 2-A.
This Exhibit is an addendum to the Agreement between nFront, Inc. and First
Commerce Bank of Commerce dated July 19, 1996.
First Commerce Bank has the right to cancel the nBusiness portion of this
Agreement with written notice to nFront until June 30, 1999.
Customer: Accepted:
First Commerce Bank nFront, Inc.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------ --------------------------------
Signature Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------ --------------------------------
Name Name
President CEO
------------------------------------ --------------------------------
Title Title
1/18/99 2/17/99
------------------------------------ --------------------------------
Date Date
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Exhibit 1-A
Software Applications - nBusiness
-------------------------------------------------------------------------------------------------------------------
CURRENT FUNCTION FUTURE
FUNCTION
-------------------------------------------------------------------------------------------------------------------
1. View Account Balances and Histories
- DDA/Savings X
- CD/▇▇▇ X
- Loans and Line of Credit X
-------------------------------------------------------------------------------------------------------------------
2. ACH formatted Transfers - Book Transfers, Drafts, Disbursements, Direct
Deposits between DDA, Savings, Loan, LOC accounts
- Immediate and Future Transfers
- One Time, Recurring Transfers and Pending Transfers X
- View Historical Transfers X
X
-------------------------------------------------------------------------------------------------------------------
3. ▇▇▇▇ Payment
- Immediate and Future ▇▇▇▇ Payments X
- One Time and Recurring Payments X
- Pending ▇▇▇▇ Payments X
- Historical ▇▇▇▇ Payments X
-------------------------------------------------------------------------------------------------------------------
4. User resources
- Online Payee Database X
- Business Calculators X
- Text Messaging X
- Categories & Journal Entries X
-------------------------------------------------------------------------------------------------------------------
5. Balance Reporting
- View customer account information for up to two years X
-------------------------------------------------------------------------------------------------------------------
6. Multi-User permissions
- SuperUser sets up and controls subordinate members' functional access X
- Secure log-in
- Create and change customer password information X
- Control Account access and disbursement levels X
X
-------------------------------------------------------------------------------------------------------------------
7. Business application integration
- Microsoft Money, Quicken X
- Peachtree, Quick Books, Comma Delimited X
-------------------------------------------------------------------------------------------------------------------
8. Online Help X
-------------------------------------------------------------------------------------------------------------------
9. Virtual Status Requests - EFTPS (Electronic Federal Tax Payments), Stop
Payments, Wire Transfers
- Immediate and Future transactions (where applicable) X
- Recurring transactions X
- Pending Transactions X
- View Historical Transfers X
-------------------------------------------------------------------------------------------------------------------
10. Additional Functions
- Cash Concentration X
- Controlled Disbursements X
- Cash Flow Manager / Daily Transaction Journal X
- ACH version of EFTPS X
-------------------------------------------------------------------------------------------------------------------
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Exhibit 1-A
Software Applications - nBusiness
---------------------------------------------------------------------------------------------------------
CURRENT FUTURE
FUNCTION FUNCTION
---------------------------------------------------------------------------------------------------------
13. Bank Administration Site - nBusiness Functions
- Set / Reset challenge code / Password for SuperUser X
- Flag accounts as Cash Management X
- Audit Management
- Receive / respond to time-sensitive Virtual Status X
Requests (VSRs): Stop Pay, Wire Transfers, EFTPS
- Detailed Internet Branch Billing X
- Billing System for nBusiness(SM) Customers using
ACH formatted file X
- nReach(SM) - Data Mining and Marketing module X
- Database Query Capability X
- Promotional e-mails to selected nBusiness(SM) X
Customers
- Internet Branch Reporting X
---------------------------------------------------------------------------------------------------------
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Exhibit 2-A
nBusiness Software Fees
---------------------------------------------------------------------------
IMPLEMENTATION FEE (INCLUDES NBRANCH) N/A
---------------------------------------------------------------------------
MONTHLY MAINTENANCE FEE $[++++]
PER CUSTOMER FEES
Customer Monthly Fee $[++++]
New Customer Setup - One Time $[++++]
---------------------------------------------------------------------------
TRANSACTION FEES
New Product Application
ACH Draft $[++++]
ACH Disbursement $[++++]
Direct Deposit $[++++]
Book Transfer $[++++]
Wire Transfer $[++++]
Stop Pay $[++++]
EFTPS - same day request $[++++]
EFTPS - pass through ACH $[++++]
Controlled Disbursement (per day) $[++++]
Cash Concentration $[++++]
---------------------------------------------------------------------------
▇▇▇▇ PAYMENT
Monthly Fee/Account $[++++]
Per Payment (Internet or Phone) $[++++]
Customer Setup included
Canceled Check Copy $[++++]
NSF Fee $[++++]
Stop Pay Fee $[++++]
Additional User Kits $[++++]
Telephone ▇▇▇▇ Payment Setup Fee (One Time) $[++++]
Telephone ▇▇▇▇ Payment Monthly Maint Fee $[++++]
Telephone ▇▇▇▇ Payment Communications Quote
---------------------------------------------------------------------------
CHECK IMAGING
DSI Setup Fee Quote
Greenway Setup Fee Quote
Per Check Image Fee Quote
Check Imaging Communications Charges Quote
---------------------------------------------------------------------------
OPTIONS
nReach Data Mining Reports (Per Report) $[++++]
nForm Multimedia Presentation (10 Frames) $[++++]
Site Map Construction $[++++]
Management Reporting (Per Month) $[++++]
Internet TV Site Quote
---------------------------------------------------------------------------
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NBANK 3.0
Enhancement Agreement
----------------------- --------------------------- --------------------------- --------------------------------------
DESCRIPTION MONTHLY COMMITMENT MONTHLY COST CURRENT EXTENDED COMMITMENT
12/15/96 - 12/31/9 1 $ [++++] $ [++++]
1/1/97 - 3/31/97 3 [++++] [++++]
TOTAL $ [++++]
----------------------- --------------------------- --------------------------- --------------------------------------
First Commerce Bank agrees to pay the following fees for the duration shown in
the monthly commitment column. nFront(R) will provide the following services for
payment of these fees(1):
- Set up nBank office
- ISP
- Recruit new employees
- Happy New Year site
- New Product Suite
- ▇▇▇▇ Payment
- FAQ
- Site Map
- Quicken export
- Games/Quiz/Giveaways
- Virtual Vault
- Web TV
- Network computers
- Enhance register program
- Scheduled transfers
- Enhance pending register
The completion of these projects is based on a full time effort by nFront and
will also involve effort from First Commerce Bank. nFront will deliver a
schedule of milestones to be completed by First Commerce Bank by January 6,
1996.
Any additional 3rd party costs necessary to complete these projects will be
presented to First Commerce Bank for approval. First Commerce Bank agrees to pay
nFront these items at the time of order.
--------
(1) These projects are detailed in the 1997 build plan project schedule. Due to
the fact that these projects are estimates, First Commerce Bank and nFront
agrees that there can be differences in the estimated hours. If the difference
is more or less than 20% for any of the projects, nFront will prepare a formal
document stating the reasons and will requests FCB approval or to continue with
the specific task.
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nFront agrees to participate as a consultants and technical advisor for First
Commerce Bank at all times. If a specific project outside of the first quarter
projects begins to hamper the development of the existing project schedule,
nFront will discuss the projects with First Commerce Bank and jointly set the
priorities of the projects.
Signatures:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ ---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
First Commerce Bank nFront
President President
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LICENSE AND MAINTENANCE AGREEMENT
BETWEEN
NFRONT, INC.
("NFRONT")
A GEORGIA CORPORATION
HAVING ITS PRINCIPAL PLACE OF BUSINESS AT:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
AND
FIRST COMMERCE BANK
("CUSTOMER")
HAVING ITS PRINCIPAL PLACE OF BUSINESS AT:
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
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1. AGREEMENT
This agreement ("Agreement") provides for the grant of a non-exclusive
license of Software ("Software") and the provision of Software
maintenance services by nFront to Customer.
2. INITIAL TERM
The initial term (the "Initial Term") of this Agreement shall begin on
July 16, 1996 (the *Effective Date), and shall remain in effect,
subject to the renewal provisions contained within ss.3 hereof, and
subject to earlier termination as provided for in ss.13 or ss.15
hereof, for a period of five (5) years following the Effective Date.
3. AUTOMATIC RENEWAL AND SUBSEQUENT TERM
Upon expiration of the Initial Term, this Agreement shall be
automatically extended for an indeterminate number of successive five
(5) year periods (each a "Subsequent Term"), unless Customer notifies
nFront of its election not to renew at least ninety (90) days prior to
the end of the Initial Term or any Subsequent Term.
4. SOFTWARE RIGHTS
This Agreement grants Customer non-exclusive license rights to nFront
Software. For all purposes of this Agreement, the term "Software" shall
mean all those software products described in the Software Applications
attached hereto as Exhibit 1 ("Software Applications"). Customer may,
by addendum to this Agreement agreed to in writing by nFront, or by
separate written agreement with nFront, license other software products
provided by nFront. Unless Customer otherwise notifies nFront, all
subsequently licensed and installed Software shall be automatically
added to this Agreement.
5. FEES, INSTALLATION CHARGES AND TAXES
(a) Fees
Customer has been granted hereunder a non-exclusive license
for the Software for the duration of this Agreement. The
initial and annual Software fees for this license are set
forth in the Customer Software Fees attached hereto as Exhibit
2 ("Software Fees").
(b) Installation and Special Charges
Customer shall pay for Software installation, modification,
and non-covered maintenance of Software at nFront's then
prevailing professional service fees. A list of nFront's
current prevailing professional service fees is attached
hereto as Exhibit 3 ("Professional Service Fees"). Expenses
for travel and all related expenses for Software installation,
modification, and covered and non-covered maintenance shall be
reimbursed by Customer to nFront upon invoice.
(c) Taxes
Customer is additionally responsible for all applicable
federal, state, or local taxes (exclusive of income taxes
properly payable by nFront) and other governmental fees or
assessments incurred as a result of this License, use of the
Software by Customer, and services provided by nFront
hereunder.
6. PAYMENT
(a) Payment of fees and charges hereunder will be due as follows:
(1) One hundred percent (100%) of the initial Software
Fees is due at the time Customer signs this
Agreement.
(2) Fifty percent (50%) of the estimated professional
service charges and hardware costs of installation
are due at the time Customer signs this Agreement.
All professional services are due on an as completed
basis.
2
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(3) Annual Software Fees for the Software begin to accrue
upon the Software Acceptance Date and are due on an
annual basis in advance.
(4) Non-covered maintenance and travel and related
charges are due upon invoice by nFront.
(b) In the event payment is not made as specified herein, or
within thirty (30) days following invoice by nFront, as
applicable, Customer shall pay interest at the rate of one and
one half percent (1.5%) per month (or the highest applicable
legal rate, whichever is lower) on the outstanding overdue
balance for each month or part thereof that such sum is
overdue. Customer agrees to pay all costs of collection of
overdue amounts, including reasonable attorneys' fees and
court costs.
7. SOFTWARE LICENSE
(a) nFront and/or its suppliers have designed, developed, and made
available proprietary computer Software containing trade
secrets of nFront and/or its suppliers. Use of this Software
is strictly governed by this Agreement. No title or ownership
in the Software is transferred to Customer. Customer shall not
copy or in any way duplicate the Software, except for
reasonable backup procedures approved by nFront. The Software
may not be assigned, sublicensed, or otherwise transferred or
used by Customer for the benefit of a third party.
(b) Customer shall hold the Software, together with all materials
and knowledge related thereto obtained by Customer, in
confidence, and shall use reasonable controls to protect the
confidential nature of the Software and such related materials
and knowledge.
(c) Customer agrees to execute any documents reasonably requested
by nFront with respect to the Software of any third party
licensed or sublicensed by nFront to Customer hereunder.
8. BASIC MAINTENANCE PERIOD
The Basic Maintenance Period commences on Monday and continues through
Friday of each week (8:00 a.m. to 5:00 p.m. Customer Local Time),
except on any day on which banking institutions in Commerce, Georgia,
are authorized by law or executive order to close ("Holidays").
9. EXTENDED MAINTENANCE PERIOD
The Extended Maintenance Period (all Customer local times):
Initial all that apply: Surcharge
_____ Monday through Friday* 8:00 a.m. to 8:00 p.m. 4%
_____ Monday through Friday* 8:00 a.m. to 12:00 midnight 8%
_____ Monday through Friday* 24 hours starting 8:00 a.m. 16%
_____ Saturday* 8:00 a.m. to 5:00 p.m. 9%
_____ Saturday* 8:00 a.m. to 8:00 p.m. 10%
_____ Saturday* 8:00 a.m. to 12:00 midnight 12%
_____ Saturday* 24 hours starting 8:00 a.m. 14%
_____ Sunday or Holiday 8:00 a.m. to 5:00 p.m. 16%
_____ Sunday or Holiday 8:00 a.m. to 8:00 p.m. 19%
_____ Sunday or Holiday 8:00 a.m. to 12:00 p.m. 22%
_____ Sunday or Holiday 24 hours starting 8:00 a.m. 27%
*Except Holidays
3
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10. COVERED MAINTENANCE
(a) General
nFront will provide the maintenance required to assure that
the Software operates according to nFront's standard
specifications. Such maintenance will be performed during the
Basic Maintenance Period, and, if ss.9 of this Agreement
applies, during the time periods specified therein.
(b) Software Maintenance
Software Maintenance includes:
(I) New software releases
(ii) Application updates
(iii) Mandatory federal regulatory compliance
(iv) Malfunction remedies ("Bug Fixes")
(v) Documentation maintenance
(vi) Remote diagnostics
(vii) Service desk and dispatch
(viii) Non-chargeable user error remedies
It is the policy of nFront to provide improvements to the
Software and to assist the Customer in its duty to comply with
mandatory federal governmental regulations applicable to the
data utilized in the Software. nFront reserves the right to
discontinue support of previous versions of Software one
hundred eighty (180) days after the availability of a new
release. Failure of the Customer to install Software releases
or any other correction or improvement provided by nFront
shall relieve nFront of responsibility for the improper
operation or any malfunction of the Software as modified by
any subsequent correction or improvement, but in no such event
shall any fees paid (or to be paid) by Customer be returned to
Customer, and nFront shall be released thereafter from its
obligation to support the Software as provided herein.
(c) Non-Covered Maintenance
Covered maintenance does not include the following: (i)
maintenance outside the agreed Basic Maintenance Period unless
and to the extent indicated in ss.9 of this agreement; (ii)
maintenance required by: (a) operator error or improper
operation of the Software, (b) modifications or additions to
Software performed by other than nFront personnel or by their
designees, (c) modifications or additions by Customer to
equipment such that the Software requires modifications in
order to operate according to nFront documentation, (d) damage
to Software by Customer's employees or third parties, (e)
causes beyond the reasonable control of nFront including, but
not limited to, acts of God or public enemies, labor disputes,
supplier or materials shortages, embargoes, rationing, acts of
government authorities, utility or communication failures,
epidemics, riots, strikes, or war, or (f) electrical
disturbances, outages or brownouts; (iii) nFront's requested
involvement in determining or solving a problem on Software
not covered by this Agreement; (iv) Software modification or
customization requested by Customer.
11. SOFTWARE ACCEPTANCE DATE
The Software Acceptance Date shall be the date the Software is first
used for daily operations by Customer.
12. DISCLAIMER
EXCEPT TO THE EXTENT OTHERWISE SPECIFICALLY STATED IN THIS AGREEMENT,
NFRONT DISCLAIMS ALL WARRANTIES ON THE SOFTWARE AND SERVICES FURNISHED
HEREUNDER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL
NFRONT'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID TO
NFRONT UNDER THIS AGREEMENT DURING ANY PERIOD OF TWELVE (12)
CONSECUTIVE MONTHS. NFRONT SHALL NOT BE LIABLE IN ANY EVENT FOR DAMAGES
RESULTING FROM LOSS OF DATA, LOSS OF PROFITS, USE OF PRODUCT, OR FOR
ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF NFRONT'S LIABILITY
SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR
TORT, INCLUDING NEGLIGENCE. ANY ACTION AGAINST NFRONT MUST BE BROUGHT
WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
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13. TERMINATION
nFront may, at its option, terminate this Agreement upon notice to
Customer if Customer fails to comply with any of the terms and
conditions hereof, including, without limitation, payment terms,
applicable to Customer. Upon notice of termination of this Agreement
under this ss.13, or upon any other termination or expiration of this
Agreement, Customer agrees to discontinue all use of the Software and
return to nFront all copies of the Software and related documentation
in Customer's control or possession, together with a written
certification that it has done so. No termination of this Agreement by
nFront shall constitute a waiver of any rights available to nFront as a
result of any breach of this Agreement by Customer.
14. EXCUSABLE DELAYS
nFront shall not be liable for delays in delivery, failure to deliver,
or otherwise to perform any obligation hereunder when such delay or
failure arises beyond the reasonable control and without the fault or
negligence of nFront, including, without limitation, such causes as
acts of God or public enemies, labor disputes, supplier or material
shortages, embargoes, rationing, acts of local, state, or national
governments or public agencies, utility or communication failures,
fire, flood, epidemics, riots, strikes, or war. The time for
performance of any obligation delayed by such events will be postponed
for a period equal to the delay, unless Customer and nFront agree to
the contrary in writing.
15. INTELLECTUAL PROPERTY RIGHTS
nFront shall indemnify Customer from any and all damages and costs
finally awarded for infringement of any valid United States patent,
trademark, or copyright in any suit based upon the license by nFront or
the proper use by Customer of the Software hereunder, where nFront is
the infringer with respect thereto, and from reasonable expenses
incurred in defense of such suit if nFront does not undertake the
defense thereof, provided that nFront is promptly notified of any such
suit, and, at its option, is given full and exclusive authority for the
control and defense of the same and all negotiations for its settlement
or compromise, and, further provided that this indemnity shall not
extend to infringement resulting from: (i) nFront's compliance with
Customer's designs, processes, or formulas; (ii) a combination with or
an addition to the Software of any software not supplied by nFront
hereunder; or, (iii) a modification of the Software by any person other
than nFront. If any claim has occurred, or in nFront's opinion is
likely to occur, Customer shall permit nFront, at nFront's option and
expense, either to procure for Customer the right to continue using the
Software or to replace or modify the same so that it becomes
non-infringing. If neither of the foregoing alternatives is acceptable
to nFront, Customer shall return the Software on written request by
nFront and this Agreement shall terminate with no continuing obligation
or liability of nFront to Customer. THE FOREGOING STATES THE SOLE AND
EXCLUSIVE LIABILITY OF NFRONT FOR INFRINGEMENT AND IS IN LIEU OF ALL
WARRANTIES, EXPRESSED OR IMPLIED, IN REGARD THERETO.
16. NOTICES
Whenever any party hereto desires or is required to give any notice,
demand, consent, approval, satisfaction, or request with respect to
this Agreement, each such communication shall be in writing and shall
be effective only if it is delivered by personal service (which shall
include delivery by delivery service, over-night delivery service,
telecopy, or telefax) or mailed, by United States certified mail,
postage prepaid, and addressed as follows:
If to nFront: nFront
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Customer: Customer's Address as specified on the
signature page hereof
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
5
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Such communications, when personally delivered, shall be effective upon
receipt, but, if sent by certified mail in the manner set forth above,
shall be effective three (3) business days following deposit in the
United States mail. Any party may change its address for such
communications by giving notice thereof to the other party in
accordance with the requirements of this section.
17. MISCELLANEOUS
Except as otherwise provided herein, this Agreement, including any
attachments hereto, constitutes the entire agreement between Customer
and nFront, and there are no other agreements, representations, or
warranties, expressed or implied, written or oral. The validity,
enforcement, interpretation, and construction of this Agreement shall
be determined in accordance with the laws of the state of Georgia. Each
party consents to the exclusive personal jurisdiction and venue of the
state and federal courts with jurisdiction in ▇▇▇▇▇▇ County, Georgia
for a resolution of all disputes arising hereunder. If any provision of
this Agreement shall, for any reason, be held unenforceable in any
respect, such unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed to limit the application
of such unenforceable provision to the minimum extent necessary to
render the same enforceable, and, if such a limiting construction is
not possible, such unenforceable provision shall be deleted as if never
contained herein. Special provisions to this Agreement, if any, shall
be attached as exhibits or addenda hereto, and shall be binding only
when executed or initialed by authorized representatives of Customer
and nFront. Any such special provisions shall control any conflict with
the provisions hereof Customer may not assign its rights hereunder or
delegate its duties hereunder, whether voluntarily, involuntarily, by
operation of law or otherwise, without the prior written consent of
nFront, which consent may be withheld in the sole discretion of nFront.
The headings and sub-headings used in this Agreement are for
convenience only and do not limit or amplify the terms hereof. The
authorization, following the execution of this Agreement, of additional
workstations or items of software shall be deemed an amendment to this
Agreement binding upon the parties during the entire term hereof.
18. SPECIAL PROVISIONS
nFront will pay Customer 10% of all Balance Inquiry and Funds Transfer
Sales until Customer has received $96,000.00
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
indicated below. This Agreement shall be effective, following execution by
Customer, upon acceptance by nFront at its principal place of business indicated
herein.
ACCEPTED:
Customer: nFront:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Signature Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
President President
7/19/96 7/19/96
-------------------------------- --------------------------------
Date Date
BILLING ADDRESS:
First Commerce Bank
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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EXHIBIT 1
SOFTWARE APPLICATIONS
Server Applications
- WebBank(TM) Membership
- WebBank(TM) Online Software
- WebBank(TM) Balance Inquiry Software Module
- WebBank(TM) Funds Transfer Module
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EXHIBIT 2
SOFTWARE FEES
COST SUMMARY
----------------------------------------------------------------------------------------------
PROJECT DESCRIPTION COST
----------------------------------------------------------------------------------------------
SECURE TRANSACTION
----------------------------------------------------------------------------------------------
NetBank 2.0 Transaction Software & Hardware $[++++]
----------------------------------------------------------------------------------------------
NETBANK SITE IMPROVEMENTS
----------------------------------------------------------------------------------------------
ATM Interface Web Site $[++++]
----------------------------------------------------------------------------------------------
Customer/Guestbook database $[++++]
----------------------------------------------------------------------------------------------
Customer Training Session $ -
----------------------------------------------------------------------------------------------
ANNUAL SOFTWARE FEE COST SUMMARY
-------------------------------------------------------------------------------
DESCRIPTION COST QUANTITY EXTENDED COST
-------------------------------------------------------------------------------
Annual Software Fees $ [+++++++] 1 $[+++++++]
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EXHIBIT 3
PROFESSIONAL SERVICES
HOURLY BLOCKS COST PER HOUR
------------- -------------
0 - 100 $[++++]
101 - 200 $[++++]
201 - 300 $[++++]
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NREACH CONTRACT ADDENDUM
By accessing the bank's administrative site, nReach options will be made
available. These features will provide the bank the capability to communicate
with their web bank customers using a web browser. The initial release of nReach
enables bank management to query their on-line nHome customers using the bank's
Internet branch and communicate with them using email capabilities. This
provides the bank a means to send marketing or informational e-mails to the
selected customers. The bank can use standard queries as well as create
bank-defined queries. The queries will generate lists of customers meeting the
criteria defined in the selected query. An e-mail message can then be assigned
and sent to the selected customer list.
NREACH CURRENT CHARGES
Institution Set Up Fee: $[++++] - waived
License Fee $[++++]
Service Fee: $[++++] - included with nHome
Annual Maintenance $[++++]
nHome Per `Run Query' Fee: $[++++] - included in License Fee/Annual Maintenance
nFront, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Its: Chairman / CEO
------------------------------------------
Date: 12/18/98
------------------------------------------
Bank Name: First Commerce Bank
------------------------------------------
By: /s/ ▇.▇. ▇▇▇▇
------------------------------------------
Its: EVP
------------------------------------------
Date: 12/8/98
------------------------------------------