EXHIBIT 10.9
Online System Services, Inc.
Electronic Banking Service
Contract
This Contract ("Contract") made and entered into on the 28th day of May, 1997 by
and between Online System Services, Inc. ("OSS") having offices located at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Rockwell Federal Credit Union
("Client) located at ______________________________________ is as follows:
1. Scope of the Contract
OSS agrees to set-up ("Set-up") an electronic banking system per the
description in paragraph 3.1 and to provide Client with electronic banking
services ("Services") as described in paragraph 3.2 and Schedule A
(attached). This contract is for all Phase I Services only, as defined in
Schedule A. Phase II and Phase III services are referenced in Schedule A
of this agreement as services which will be made available to the Client by
OSS in calendar Q1 1998 and Q3 1998 respectively. Phase II and Phase III
services are not included in the pricing of this contract and will be
purchased under a separate agreement between OSS and Client.
2. Relationship of the Parties
2.1 OSS will purchase certain software modules as defined in paragraph 3.1
from Edify Corporation ("Edify"). Additionally, OSS will contract
with Edify for certain professional services during the Set-up of the
electronic banking system. Set-up will include integrating an
electronic commerce system which is being sold to Client by Checkfree
Corporation ("Checkfree") under a separate agreement with Client
2.2 Upon completion of Set-up (paragraph 3.1.6) OSS will be responsible to
provide the Services described in paragraph 3.2. All services related
to the Checkfree electronic commerce system will be provided by
Checkfree under a separate agreement with the Client. Services in
Schedule A which are denoted by "Checkfree" in the column labeled
"Implementation Phase" are included for reference only.
3. Statement of Work
OSS shall set up an electronic banking system for Rockwell Federal Credit
Union ("RFCU") and use it to provide ongoing electronic banking services to
RFCU and its members.
3.1 Setup
OSS shall establish an electronic banking system to provide the
ongoing electronic banking services to RFCU that are specified in
Schedule A, "Technical Specifications" as Phase 1 items. (Items
designated part 2 of Phase I are not needed for commencement of
service - they can be implemented after service is underway.)
Specifically, OSS shall provide or acquire and shall assemble,
configure and integrate the facilities, hardware, software,
telecommunications lines and other components for the required RFCU
electronic banking system. OSS shall also work with RFCU to integrate
the electronic banking system with RFCU's Re:Member Data Services
back-end computer system, and with CheckFree to integrate with the
CheckFree ▇▇▇▇ payment system and service being procured separately by
RFCU.
3.1.1 Edify Electronic Banking System
OSS shall utilize Edify Electronic Banking System (EBS) software
as the basis for RFCU's electronic banking services. This
software will include the Electronic Workforce core underlying
software layer, and the Home Banking, Personal Profile,
Message Center and ▇▇▇▇ Payment EBS Modules. The capability to
integrate with CheckFree for ▇▇▇▇ payment is also provided. OSS
shall acquire the required EBS software from Edify and, with
support from Edify as a subcontractor, shall configure the
software to meet the RFCU-specific needs described in Schedule A,
including integration with Re:Member and with CheckFree.
OSS shall work with RFCU personnel to define and implement the
interface between. EBS and Re:Member, and with CheckFree
personnel to implement the interface between EBS and CheckFree.
It is expected tat RFCU will provide the appropriate permissions
and authorizations as well as access to its relevant facilities,
systems and personnel, will perform any needed configuration,
modification or set up of existing RFCU systems, and will provide
needed space or other facilities or equipment (e.g., AC power),
in order to support implementation of the RFCU end of the
interface to the electronic banking system. It is expected that
CheckFree will be fully responsible for implementing its end of
the interface to the electronic banking system.
3.1.2 Network and System Operation Center
OSS shall provide a Compaq Proliant 2500, 6/200 system running
OS/2 Warp as part of its Network and System Operation Center
(NSOC) at its facilities in Denver. This server will have a 2 GB
Wanglek Tape Backup system and will be running Edify's Electronic
Banking System software (EBS). The NSOC will have five (5)
modems available to RFCU customers for direct dial in access to
the RFCU on-line banking system. Direct point to point
connectivity between OSS and RFCU will allow the Edify system to
directly talk to RFCU's banking back-end service. An interface
with the 56Kbps frame relay connection from CheckFree will
support the EBS-CheckFree interface. Redundant T-l connections
to the Internet through two different carriers will ensure
continuous Internet access. The NSOC has complete redundancy
within its environment, this includes multiple redundant web
servers, routers, Raid 5 systems, Hubs, Backup Domain controllers
and SQL servers.
3.1.3 Backup System
OSS shall provide backup or redundant server equipment to be used
on behalf of RFCU and housed in an off-site Denver area location
as a redundant Backup Site: Compaq 1500R Web server, Compaq
Proliant 2500, 6/200 system running OS/2 Warp. This System will
have "hot", direct Internet connectivity, a 2 GB Wanglek Tape
Backup system and will be redundant to the system that houses
RFCU's main interface. "Hot" backup direct point to point
connection to RFCU and a "hot" interface with a backup frame
relay connection from CheckFree will be provided for within this
Backup Site. Three Backup modems will be immediately available
for RFCU members should the Backup site need to be made available
for use. Daily tape backups will be available to restore the
RFCU system within 6 hours should the OSS facility fail.
3.1.4 Help Desk
OSS shall provide a service bureau Help Desk to handle all
customer inquiries regarding system operation. Sign-up and
password protection are also to be provided by the Help Desk.
OSS shall work with RFCU personnel to define and implement the
interface of the Help Desk with the RFCU Customer Service and IVR
systems, and with CheckFree personnel to define and implement the
interface of the Help Desk with CheckFree's Customer Service and
its ▇▇▇▇ Pay D/R as required. It is expected that RFCU and
CheckFree will be each be responsible for any modifications to
their telephone, Customer Service or D/R systems needed to
implement the interface with the Help Desk.
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3.1.5 Telecommunications Links
OSS shall provide T1 connections to the Internet and 56 Kbps
point-to-point lines for direct connectivity to RFCU, for both
the NSOC and Backup Sites as described above. OSS shall provide
RFCU with the required routers and CSU/DSUs for the RFCU end of
the point-to-point connection (as well as for the OSS end). OSS
shall also arrange for establishment of an 800 line connecting
the RFCU customer service center with the OSS Help Desk center.
It is understood that CheckFree will provide the 56 Kbps frame
relay lines for direct connectivity between CheckFree and the
NSOC and the Backup Site, as well as any router or (35U/DSU
required at the OSS end of the connections. OSS will coordinate
with CheckFree for interface of its Customer Service and ▇▇▇▇ Pay
IVR centers with the OSS Help Desk Center. It is understood that
CheckFree is to arrange for these lines. OSS will coordinate the
interface with CheckFree.
3.1.6 Completion of Set Up
OSS intends to have the set up activities sufficiently complete
and the system ready for a Pilot Test by September 1, 1997. A
Pilot Test Period will be 30 days, unless RFCU and OSS mutually
agree to a shorter period. It is the mutual intent of the
parties to have full member service commence on or about October
13, 1997. For the Pilot Test, OSS will coordinate with RFCU
personnel to exercise the system, in order to demonstrate the
effective working of the appropriate functions and features
specified in Schedule A. It is expected that RFCU will support
this test by setting up appropriate "dummy" accounts or other
test databases, establishing a group of nominally 50 RFCU
employees to exercise the system using their own accounts, making
access available to appropriate systems for test purposes,
contributing to establishing the test plan and procedures, and
participating in and monitoring the test.
OSS and RFCU will jointly conduct the test, making note of any
deficiencies discovered with respect to the functions and
features of Schedule A. It is intended that OSS will be alerted
immediately as to any such deficiencies discovered, and that OSS
will promptly work to remedy them, so as to allow appropriate re-
testing during the Pilot Test period. Before or at the
conclusion of the Pilot Test Period, RFCU will indicate
acceptance, conditional acceptance or rejection of test results.
if no specific response is given within 5 days of the conclusion
of the Pilot Test Period, the test results will be considered to
have been accepted. if any deficiencies are outstanding at the
conclusion of the Pilot Test Period, OSS will remedy them within
12 days in order to meet the specifications of Schedule A and to
achieved acceptance.
Upon acceptance of the Pilot Test results, the system will be
considered ready to "go live" and online electronic banking
service will then be available to RFCU members.
3.2 Ongoing Electronic Banking Services
OSS shall provide ongoing electronic banking services to RFCU as
specified in Schedule A, "Technical Specifications."
3.2.1 Electronic Banking Service
OSS shall utilize the system as set up per section 3.1 above to
provide on-line banking services to RFCU members, and associated
management services to RFCU staff.
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3.2.2 ▇▇▇▇ Payment Service
For ▇▇▇▇ payment services, OSS shall provide the user interface
to CheckFree, which will provide ▇▇▇▇ payment services under a
separate agreement with RFCU.
3.2.3 Help Desk Service
OSS shall provide a Help Desk for telephone-based customer
service to RFCU members, for online banking (including interface
to CheckFree ▇▇▇▇ payment) and related technical calls. The Help
Desk staff at OSS will also assign all passwords and PIN numbers,
distribute sign-up material and sign up all members onto the RFCU
system. Members may contact OSS via e-mail, by postcards
available in RFCU lobbies, optionally by direct dial, and by
RFCU's PBX system. All user D's and passwords will be logged by
OSS and usage and call tracking reports made available to RFCU
staff.
OSS will staff its help desk between 6:00 am and 12:00 midnight
Pacific Time to handle all member and staff inquiries about the
online banking system operations. Calls from members will be
routed through RFCU's PBX telephone system, calls about account
information will be handled by RFCU staff. Calls regarding
operation and usage of the online banking and ▇▇▇▇ payment system
will be handled by OSS help desk staff, or transferred directly
to CheckFree's help desk staff RFCU members will be unaware of
any transfers being made. A direct dial 800 number to OSS's help
desk will also be provided, along with e-mail access.
3.2.4 Marketing Support
OSS shall provide support to RFCU for marketing of the online
electronic banking service per section III.A, Marketing Services,
of Schedule A.
3.2.5 Training
OSS shall provide training support for the electronic banking
system. A series of two one-day training sessions will be
conducted by OSS personnel at the main RFCU office once the
system is set up. Designated RFCU staff, not to exceed twenty
(20) trainees, will be trained on all the system's capabilities
by OSS, with support from Edify, and OSS will coordinate with
CheckFree so that CheckFree can include ▇▇▇▇ payment training as
well if appropriate.
4. Fees and Payment Terms
4.1 Set-up Fee
Client agrees to pay a Set-up Fee in the amount specified in Schedule B
due upon the execution of this Contract.
4.2 Monthly Service Fees
Client agrees to pay to OSS monthly, within 30 days of receipt of
invoice, the amounts as set forth in the section titled "Monthly Service
Fees" in Schedule B. Invoices will include applicable sales taxes, if
any.
4.3 OSS agrees that, on the one (1) year anniversary of the commencement of
Services, Client may elect t provide it's own Help Desk services
provided Client has notified OSS in writing at least sixty (60) days
prior to the one (1) year anniversary date. Upon receipt of such
notification, 058 and Client agree to negotiate, in good faith, a
mutually agreed upon reduction in Monthly Service Fees which is
commensurate with the reduction in OSS provided Help Desk services. The
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reduction in fees will become effective sixty (60) days after either the
one (1) year anniversary date or the date of a written fee reduction
agreement signed by both parties, whichever is later.
4.4 Invoices for Services shall be due and payable thirty (30) days after
receipt of the invoice. If Client fails to pay such amounts when due,
OSS may, at it's option and after giving at least ten (10) days prior
written notice, discontinue furnishing the Services until all past due
amounts are paid in full.
5. Term of Contract
5.1 This Contract shall be effective as of __________________ and shall
remain in force for thirty six (36) months ("Initial Term") from the
Completion of Set-up as defined in paragraph 3.1.6. The Contract shall
automatically renew and extend for successive one (1) year terms
commencing at the conclusion of the Initial Term unless contrary notice
in writing is given by Client or OSS at least ninety (90) days prior to
termination of the then current term.
5.2 One (1) year from Completion of Set-up (paragraph 3.1.6), Client may, at
it's option, terminate this Contract if certain performance criteria, as
specified in Schedule C, have not been met by OSS. Client shall notify
OSS in writing, at least ninety (90) days prior to termination, of the
areas of non compliance to the criteria in Schedule C and OSS shall have
forty (45) days to cure such non compliance. If OSS is unable to cure,
the Client may, at it's option, proceed with termination.
6. Trade Secrets and Confidentiality.
Client acknowledges that all computer programs, data file content and
organization, techniques, methods, rules, procedures, protocols, forms,
instructions, trade secrets, copyrights and any other proprietary rights of
085 or third parties used in connection with or in any way relating to the
System or Services ("Products") are the exclusive and confidential property
of OSS or parties from whom OSS has secured such Products. Client, its
subsidiary or affiliated corporations, consultants or contractors shall treat
the Products as confidential and will not disclose or otherwise make
available same in any form to any person other than employees of Client or
its data processor who need to know such information for rendition of the
Services. Client will instruct such employees and data processors to keep the
same confidential using the same care and discretion that Client would use
with respect to its own confidential property and trade secrets. Upon
termination of this Contract for any reason, Client shall return to OSS any
and all Products in its possession or under its control and shall cease using
them in any way.
6.1 OSS shall treat as confidential and shall not disclose or otherwise make
available the personal account information or other data received by OSS
from Client ("Client's Data") or Users ("Users' Data") to any person,
other than employees, agents, contractors or affiliates of OSS or
Client. OSS shall instruct such employees, agents, affiliates and
contractors to keep the same confidential by using the same care and
discretion that OSS uses with respect to its own confidential
information. OSS shall not release Client's Data to any party without
written permission from Client.
7. Reliance on Information Provided.
OSS shall rely on the accuracy of all information provided to OSS by Client.
Client shall promptly inform OSS of any such incorrect data or information,
bear the cost of correction and pay any damages arising therefrom.
8. Warranty and Limitation of Liability.
8.1 OSS warrants that it will exercise reasonable care in the performance of
its obligations under this Contract. OSS makes no other warranties,
express or implied, including without limitation, any warranty of
merchantability or fitness for a particular purpose with respect to the
services provided hereunder. Because of the extreme difficulty of fixing
actual damages for any failure of
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OSS to perform its obligations hereunder, or from any failure of OSS to
perform any obligations imposed by law, the parties agree that OSS's
liability hereunder, if any, shall be limited to liquidated damages in
the amount of the Fees paid by Client to OSS for the two calendar
months immediately preceding the month in which the event occurred that
gave rise to the damages. The provisions of this paragraph apply even
though the loss or damage, irrespective of cause or origin, results,
directly or indirectly, either from performance or nonperformance of
obligations imposed by this Contract.
8.2 IN NO EVENT WILL OSS BE RESPONSIBLE FOR (A) ANY INCIDENTAL, INDIRECT,
CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND,
INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA
REGARDLESS OF WHETHER IT WAS ADVISED, HAD REASON TO KNOW, OR IN FACT
KNEW OF THE POSSIBILITY THEREOF; OR (B) FOR ANY LOSS OR DAMAGE TO
CLIENT OR USER, DIRECT OR CONSEQUENTIAL, ARISING OUT OF OR IN ANY WAY
RELATED TO ACTS OR OMISSIONS OF THIRD PARTIES INCLUDING, BUT NOT
LIMITED TO, ELECTRONIC COMMERCE SYSTEM PROVIDERS AND TELECOMMUNICATION
CARRIERS.
OSS shall not be liable for any delay or other failure of performance
caused by factors beyond its reasonable control, such as, but not
limited to, strikes, insurrection, war, fire, lack of energy, acts of
God, governmental acts or regulation, or acts of third parties. If,
alter the date of this Contract, any law, regulation, or ordinance,
whether federal, state, or local, becomes effective that substantially
alters the ability of OSS to perform services hereunder, OSS shall have
the right to terminate this Contract upon thirty (30) days written
notice to Client
9. Indemnification.
OSS agrees to indemnify Client, its officers, directors, agents and
employees from and against any and all loss, liability, cost and expense,
including punitive damages and reasonable attorneys' fees, incurred by any
one or more of them by reason of any and all claims, demands, suits, or
proceedings made or brought against any one or more of them arising from or
related to the breach of any obligation, responsibility, warranty, or
representation made by OSS herein. Client agrees to indemnify OSS, its
officers, directors, and employees from and against any and all loss,
liability, cost and expense, including punitive damages and reasonable
attorneys' fees, incurred by any one or more of them by reason of any and
all claims, demands, suits or proceedings, made or brought against any one
or more of them arising from or related to any act or omission of Client or
the breach of any obligation, responsibility, warranty, or representation of
the Client to OSS related to the operation, promotion, or use of the
Services pursuant to this Contract.
10. Default; Remedies Upon Default.
10.1 Should Client (i) default in the payment of any sum of money hereunder,
(ii) default in the performance of any of its other obligations under
this Contract, (iii) become the subject of any proceeding under the
Bankruptcy Code or become insolvent, or (iv) have any substantial part
of its property become subject to any levy, seizure, assignment,
application or sale for or by any creditor or governmental agency, OSS,
at its option, may, upon at least ten (10) days advance written notice
thereof, terminate this Contract and declare all amounts immediately
due and payable. The remedies contained in this paragraph 10.1 are
cumulative and are in addition to all other rights and remedies
available to OSS under this Contract or at law or in equity.
Conversely, should OSS fall into any of the above situations, the same
remedies will apply on behalf of Client, at their option.
10.2 In the event either party defaults in the performance of this Contract,
the other, not in default, shall have such remedies, including
cancellation of this Contract, as may be appropriate at law or in
equity; provided, however, that no legal action shall be brought by.
either party unless the other shall have been given at least forty-five
(45) days notice in writing specifying the alleged breach thereof and
if during said time such breach is cured or remedied no such action
shall exist
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11. General
11.1 Client acknowledges that it has not been induced to enter into this
Agreement by any representation or warranty not set forth in this
Agreement. This Agreement contains the entire agreement of the
parties with respect to its subject matter and supersedes all
existing agreements and all other oral, written or other
communications between them concerning its subject matter. This
Agreement shall not be modified in any way unless it is in written
form and signed by both parties.
11.2 This Contract shall be binding upon and shall inure to the benefit of
OSS and Client and their respective successors and permitted assigns.
11.3 If any provision of this Contract (or any portion thereof) shall be
held to be invalid, illegal or unenforceable, the validity, legality
or enforceability of the remainder hereof, shall not in any way to be
affected or impaired thereby.
11.4 The headings in this Contract are intended for convenience of
reference and shall not affect its interpretation.
11.5 The individuals executing this Contract on behalf of OSS and Client
do each hereby represent and warrant that they are duly authorized by
all necessary action to execute this Contract on behalf of their
respective principals.
11.6 This Agreement is made in the County of Denver, State of Colorado,
and shall be construed and interpreted in accordance with the laws of
the State of Colorado without regard to choice of law principles.
12. Arbitration.
12.1 Any controversy or claim between or among the parties hereto
including but not limited to those arising out of or relating to this
Contract or any related agreements or instruments, including any
claim based on or arising from an alleged tort, shall be determined
by binding arbitration in accordance with the Federal Arbitration Act
(or if not applicable, the law of Colorado). Judgment upon any
arbitration award maybe entered in any court having jurisdiction. Any
party to this Contract may bring an action, including a summary or
expedited proceeding, to compel arbitration of any controversy or
claim to which this Contract applies in any court having jurisdiction
over such action.
12.2 The arbitration shall be conducted in Los Angeles, California. All
arbitration bearings will be commenced within ninety (90) days of the
demand for arbitration, further, the arbitrator shall only, upon a
showing of cause, be permitted to extend the commencement of such
heating for up to additional sixty (60) days.
13. Notices.
Service of all notices under this Agreement shall be in writing and son by
U.S. Certified Mail, return receipt requested, postage paid, addressed to
the party to be served notice at the following address:
Online System Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Credit Union
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
EXECUTED in multiple originals on the dates shown below.
ROCKWELL FEDERAL CREDIT UNION ONLINE SYSTEM SERVICES
By: ___________________________ By:___________________________
Name:__________________________ Name:_________________________
(please print) (please print)
Title:_________________________ Title:________________________
Date:__________________________ Date:_________________________
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