EXHIBIT 10.13
Confidential portions of this exhibit have been redacted
pursuant to the rules and regulations of the Securities and Exchange Commission
TOTAL ACCESS BANKING
ADDITIONAL SERVICES ADDENDUM TO
SERVICES AGREEMENT NO. CHH-2217-12-91 DATED ____________ ("Services Agreement")
I. ORDER
BISYS, Inc. ("BISYS"), agrees to sell the equipment and to license the
computer software programs (the application system software, the
sub-system software, and the operating system software collectively,
the "Programs") collectively known as the Total Access Banking System
(the "System") to the client subject to the terms and conditions set
forth herein and in the separately executed End User Software License
Agreement (the "Software License").
II. TERM
The term of this Addendum shall be coterminous with the term of the
Services Agreement.
III. MAINTENANCE
A. During the term hereof, BISYS agrees to maintain the Programs
licensed to Client pursuant to the terms of an End User
Software License Agreement between Client and BISYS with
respect to the Programs. For purposes of this Addendum,
"BISYS" shall include BISYS and any third party authorized by
BISYS to provide hardware and/or software maintenance on
BISYS' behalf.
B. Client shall receive, at no additional charge, all new
versions of the Program(s) and revised documentation as well
as all enhancements, corrections, and alterations produced by
BISYS or received by BISYS from the "BISYS LICENSOR" (as such
term is defined in the Software License) so long as Client
does not materially breach, and has not materially breached,
any provisions of the Services Agreement, the End User
Software License Agreement, or this Addendum.
C. BISYS shall use all reasonable efforts to correct any
verifiable and reproducible error or defect in the Program(s)
or replace said defective Program(s) and/or provide assistance
or services necessary to correct any defect that is solely
attributable to BISYS or BISYS Licensor and that significantly
affects the use of the Program(s) such that the System does
not materially perform in accordance with its designed
specifications. Such corrections or replacements will be
promptly provided upon written notification to BISYS. At its
expense and if requested by BISYS, Client agrees to provide
BISYS with sufficient support to enable BISYS to determine and
diagnose problems encountered in order to conclude that the
problem is in fact with the Program(s) and to correct the
problem or defect. Corrections for defects due to unauthorized
Program changes will be billed at BISYS' standard rates for
such services.
D. As more fully described below, BISYS shall perform such
maintenance service as shall be necessary to keep any
equipment purchased or leased by Client from BISYS for the
purpose of utilizing the Programs (the "Equipment") in, or
restore the Equipment to, good working order operating in
accordance with its specifications.
1. If at the date the parties hereto enter into this
Addendum, the Equipment (or any part thereof) is not
under an applicable warranty period from the
manufacturer, BISYS may, at its option, inspect and
test the Equipment within 30 days of the date hereof
for such Equipment. If in BISYS' reasonable judgment
such Equipment is not in good working order, BISYS
shall restore the Equipment to good working order,
and shall ▇▇▇▇ Client
1
for such inspection, test and restoration services at
prevailing rates, plus travel and other direct costs.
2. Client shall give BISYS' representatives full and
free access to the Equipment upon reasonable notice.
3. With respect to Equipment maintenance services
hereunder, the obligations of BISYS and Client shall
be as follows:
a. In the event of a malfunction in the
Equipment, Client shall first seek telephone
assistance from BISYS. BISYS and Client
shall cooperate in the identification,
verification and possible resolution of
Equipment problems;
b. If the malfunction cannot be corrected
through telephone assistance, BISYS, at its
option, shall provide on-site maintenance
through its authorized representative. Such
representative shall repair or replace all
or part of the Equipment and shall perform
such other services necessary to return the
Equipment to good working order, or, at Its
option, BISYS shall provide replacement
equipment on a temporary loan basis
delivered by overnight courier service,
Monday through Saturday, except holidays.
Upon repair and return of the defective
Equipment pursuant to paragraph
III.(D)(3)(c), Client shall within five (5)
days pack and return any loaned equipment
according to BISYS' instructions. Client
will pay all packing and transportation
costs for replacement equipment shipments.
c. Client shall, with the authorization and
according to the instructions of BISYS, pack
and return by overnight courier the affected
Equipment or part back for repair. Client
will pay all transportation costs for the
returned Equipment. The returned Equipment
shall be repaired or replaced with new or
equivalent to new manufactured equipment at
BISYS' option.
d. If the loaned equipment is not returned
within five (5) days, Client will be
invoiced for the loaned equipment at the
list price then in effect.
4. Services outside the scope of BISYS' obligations
under this Addendum includes, but is not limited to
the following:
a. Maintenance, repair or replacement of any
peripheral equipment, including, but not
limited to, personal computers, video
displays, printers, modems, linedrivers or
cables;
b. Electrical work external to the Equipment;
c. Repair or replacement necessitated by damage
to or other defects in the Equipment
resulting from causes external to the
Equipment, including neglect or misuse,
unauthorized attachments or modifications,
use of the Equipment for other than its
intended purpose, service or repair of
Equipment by persons other than BISYS or
other persons authorized by BISYS;
d. Services in connection with relocating the
Equipment or the addition or removal of item
of Equipment attachments, features,
accessories, or other devices, or the
service of alterations, attachments, or
other devices not furnished by BISYS;
e. Furnishing supplies or other accessories, or
painting or refinishing the Equipment;
f. Repair or exchange due to damage, or
increase in service time, caused by events
beyond BISYS' control, such as accident,
transportation, water, wind, fire, sabotage,
explosion, vandalism, burglary, and failure
of electrical power, alterations or
additions to Equipment not furnished by
BISYS;
g. Repair or exchange caused by the failure to
provide a suitable environment prescribed by
BISYS including adequate space, electrical
power, air conditioning, and humidity
control.
2
IV. HARDWARE WARRANTY
A. BISYS warrants that the Client will acquire good and clear
title to the Equipment purchased. BISYS further warrants that
for one-hundred eighty (180) days after shipment, the
Equipment shall be free from defects in design, material and
workmanship and shall not fail in any material respect to
execute its programming instructions. Written notice of any
claimed defect must be received by BISYS within such 180-day
period.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESSED OR IMPLIED (INCLUDING, WITHOUT LIMITATION, THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE).
IN THE EVENT OF ANY LOSS OR DAMAGE TO THE CLIENT, WHETHER
UNDER WARRANTY, CONTRACT OR OTHERWISE, DIRECT OR INDIRECT,
INCIDENTAL OR CONSEQUENTIAL, BISYS SHALL HAVE NO LIABILITY
BEYOND REPAIR OR REPLACEMENT OF DEFECTIVE ITEMS, COMPONENTS OR
PARTS AS SET FORTH HEREIN. IN NO EVENT WILL SISYS BE LIABLE
FOR DAMAGES IN EXCESS OF ALL CHARGES PAID BY THE CLIENT IN
RESPECT OF ANY DEFECTIVE ITEM, COMPONENT OR PART UNDER THIS
AGREEMENT.
B. BISYS warranty is contingent upon proper use of the Equipment
in accordance with BISYS installation and operating manuals
and (a) does not cover the Equipment if modified by anyone
other than BISYS or BISYS' authorized representatives; (b)
does not apply if adjustment, correction, repair or
replacement of the Equipment, wholly or partially, is required
because of accident, neglect or operating conditions outside
of specifications; (c) does not cover defects in any central
processing unit, associated software, terminals, controllers
or telephone equipment used with the System and associated
equipment; (d) does not cover malfunctions caused by defects
in or arising from the installation, training or servicing
other than by authorized BISYS representatives; and (e) does
not apply if the Client has rejected any corrections, updates
or modifications made available or supplied by BISYS.
V. EXPENSES
Client shall reimburse BISYS for any out-of-pocket expenses incurred by
BISYS in performing its obligations hereunder. Expenses include travel,
lodging, meals, telephone, and shipping as may be necessary to perform
under this Addendum.
VI. TITLE
Any new versions of the Program, including enhancements, modifications,
alterations, or changes thereto provided under this Addendum shall
remain the proprietary property of BISYS LICENSOR to the same extent as
do the Licensed Materials as set forth in the Software License.
VII. PRICES AND FEES
Prices and fees are as specified on the attached Price Schedules. The
schedules are subject to change as specified in the Services Agreement.
Client hereby agrees to pay the specified charges in consideration for
the services and products provided hereunder and to abide by the terms
of the attached Total Access Banking End User Software License
Agreement; and all terms and conditions in the Services Agreement shall
remain unchanged.
3
TOTAL ACCESS BANKING
ADDITIONAL SERVICES ADDENDUM - CONTINUED
LICENSEE: Atlanta Internet Bank
---------------------------
BISYS, INC. Client's City/State: Atlanta, GA
----------------
Approved by: /s/ ▇.▇. ▇▇▇▇▇▇▇ Approved by: /s/ ▇.▇. ▇▇▇▇▇▇
--------------------- ------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇
---------------------------- -------------------------------
Title: Sr. V.P. Date: Title: Vice Chairman Date: 3/13/97
--------------------------- ------------------------------
4
TOTAL ACCESS BANKING
PRICE SCHEDULE
I. PRODUCT AND ANNUAL SERVICE PURCHASE ANNUAL SUPPORT
PRICE AND MAINTENANCE
BASE SYSTEM --------------- ---------------------
-------------------------
4 Line Analog Line Model $ _____ $ _____
-------
X 8 Line Analog Line Model $ _____ $ _____
-------
12 Line Analog Line Model $ _____ $ _____
-------
16 Line Analog Line Model $ _____ $ _____
-------
24 Line Analog Line Model $ _____ $ _____
-------
Additional Line Upgrade
Line Analog Upgrade $ _____ $ _____
-------
Application System
Deposits Application $ _____ $ _____
Mortgage Loan Application $ _____ $ _____
Installment Loan Application $ _____ $ _____
Site License $ _____
Installation Fee(1) $ _____
Includes two (2) days on-site system
installation and training.
II. MONTHLY RECURRING SERVICE FEES
Voice Response Transaction Fee
Total Access Banking System ($___ MINIMUM) $ _____
/transaction/month
Other (Third Party) ($____ MINIMUM) $ _____
/transaction/month
Terminal Connect Fee $ _____
/line/month
Extended On-Line Availability(2) $ _____
The client hereby ____ does ____ does not
Subscribe to extended on-line update availability
--------
(1) Plus travel and lodging expenses
(2) Under the extended on-line option, the TAB system will be available 7
days a week, 23+ hours a day, 365 days a year except for periods of
non-availability on selected Saturdays or Sundays for required
maintenance of the BISYS Host system hardward and/or software. BISYS
agrees to provide clients with prior written notice of the scheduled
periods of non-availability.
5
TOTAL ACCESS BANKING
END USER SOFTWARE LICENSE AGREEMENT
This Agreement, made as of March 13, 1997 between BISYS, Inc. (hereinafter
"Licensor"), having an address at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and
Atlanta Internet Bank, having an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇.
▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (hereinafter "Licensee").
B"ISYS LICENSOR" means that company which has licensed this software to BISYS.
BISYS provides to Licensee the computer software and other related data,
including intellectual data, proprietary information and user documentation that
is contained on the medium in the Total Access Banking product herein referred
to as the "Licensed Materials" and hereby licenses its use. Licensee assumes
responsibility for the selection of the Licensed Materials to achieve Licensee's
intended results, and for the installation, use and results obtained from the
Licensed Materials.
I. SCOPE OF LICENSE
A. Licensor grants and Licensee accepts, a non-exclusive,
non-transferable, perpetual license to use the Licensed Materials in
accordance with the terms of this End User Software License Agreement.
B. Licensor represents that the BISYS Licensor is sole and exclusive
owner to, or has obtained all rights, titles, and interest in and to
the Licensed Materials issued under this license, and to all
modifications and enhancements thereof developed by BISYS Licensor
(including ownership to all trade secrets and copyrights pertaining
thereto). Nothing in this license should be construed to be a grant of
title or ownership of software to Licensee.
C. Licensee agrees that R may (1) use the Licensed Materials only in
conjunction with Syntellect equipment; (2) make one copy of the
Licensed Materials for archival purposes only; and (3) use the
Licensed Materials only for internal purposes.
D. Licensee agrees ft may not reverse-engineer, merge, or otherwise
modify the object code, or assign or transfer the Licensed Materials
to any other party except to a successor in interest of the Licensee's
business that assumes all of the Licensee's obligations with respect
to the Licensed Materials.
E. Licensee agrees that the Licensed Materials and all manuals, documents
and other information marked "Confidential Information" will be
accepted by Licensee in confidence, and Licensee will guard against
disclosure of such information, and shall use all reasonable efforts
to protect and defend the confidential nature of the software and
related materials.
F. Licensee agrees that ft will retain and affix as appropriate, all
copyright, patent, or other notices; proprietary legends; trademarks,
logos, and other restrictive markings.
G. Licensee acknowledges that Licensor limits its warranty of the
sub-system software and operating system software (portions of the
Licensed Materials owned by BISYS Licensor) to 180 days after
shipment, and warrants that the software shall not fail in any
material respect to execute Ks programming instructions due to defects
in materials and workmanship. THE FOREGOING WARRANTY IS IN LIEU OF ALL
WARRANTIES, EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION), THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
H. Licensee acknowledges that software support is not provided for in
this Agreement, but is available from Licensor upon payment of the
applicable fees, and upon execution of a separate Total Access Banking
Additional Services Addendum.
Page 1 of 4
I. Licensee agrees that Licensor and BISYS Licensor SHALL NOT BE LIABLE
FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTIONS OF BUSINESS, OR
FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY
KIND, WHETHER UNDER THIS LICENSE OF OTHERWISE.
J. Licensee acknowledges that Its obligations remain in effect for as
long as it continues to possess and use the Licensed Materials, and
such obligations shall be for the benefit of, and enforceable by,
Licensor.
LICENSEE MAY NOT USE, COPY, MODIFY, OR TRANSFER THE LICENSED MATERIALS,
OR ANY COPY, MODIFICATION OR MERGED PORTION, IN WHOLE OR IN PART,
EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS LICENSE. IF LICENSEE TRANSFERS
POSSESSION OF ANY COPY, MODIFICATION OR MERGED PORTION OF THE LICENSED
MATERIALS OR ANY RELATED DOCUMENTATION TO ANOTHER PARTY, THIS LICENSE
SHALL AUTOMATICALLY TERMINATE.
II. TERM
The term of this license is perpetual, unless and until it is terminated
under one of the following conditions:
A. Licensee agrees that Licensor may terminate this License if Licensee
materially breaches any provisions of this agreement or the Total
Access Banking Additional Services Agreement and the breach remains
unresolved for a period of thirty (30) days from receipt of written
notice by the Licensor. Upon such termination, Licensee agrees to
return the Licensed Materials together with all copies in any form.
B. Either party gives the other written notice of cancellation at least
sixty days prior to the effective date of such cancellation. The
Licensee agrees to return the Licensed Materials together with all
copies in any form.
III. DELIVERY AND ACCEPTANCE
A. BISYS shall deliver Licensed Materials to Licensee, in a machine
readable format accompanied by appropriate documentation.
B. The Licensed Materials and related documentation delivered to Licensee
shall be deemed to be accepted by Licensee within 30 days after
delivery unless BISYS is notified in writing to the contrary. Any
notification by Licensee within such 30 day period shall set forth
with particularity any defects or objections to the Licensed
Materials. Within a reasonable period after receipt of such notice,
BISYS shall correct and redeliver the Licensed Materials and if
accepted by Licensee, BISYS shall have no further liability with
respect to delivery of the Licensed Materials.
IV. LIMITED WARRANTY
A. EXCEPT AS STATED ABOVE IN PARAGRAPH l(G) AND IN THIS SECTION THE
LICENSED MATERIALS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND,
EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED
MATERIALS IS WITH LICENSEE. SHOULD THE LICENSED MATERIALS PROVE
DEFECTIVE, LICENSEE (AND NOT BISYS LICENSOR) ASSUMES THE ENTIRE COST
OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION BEYOND THE WARRANTY
PERIOD. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES,
SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. THIS WARRANTY GIVES
LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY ALSO HAVE OTHER
RIGHTS WHICH VARY FROM STATE TO STATE.
Page 2 of 4
B. BISYS warranty is contingent upon proper use of the Licensed Materials
in accordance with BISYS installation and operating manuals and does
not cover Licensed materials if modified by anyone other than BISYS or
BISYS' authorized representatives; (b) does not apply if adjustment,
correction, repair or replacement of the Licensed Materials, wholly or
partially, is required because of accident, neglect or operating
conditions outside of specifications; (c) does not cover defects in
any central processing unit, associated software, terminals,
controllers or telephone equipment used with the Licensed Materials
and associated equipment; (d) does not cover malfunctions caused by
defects in or arising from the installation, training or servicing
other than by authorized BISYS representatives; and (e) does not apply
if the Licensee has rejected any corrections, updates or modifications
made available or supplied by BISYS.
C. BISYS and BISYS LICENSOR do not warrant that the functions contained
in the Licensed Materials will meet Licensee requirements or that the
operation of the program will be interrupted or error free.
D. BISYS and BISYS LICENSOR do warrant to Licensee that the tape(s),
CD-ROM(s) or diskette(s) on which the software is furnished, will be
free from defects in materials and workmanship under normal use for a
period of fourteen (I 4) days from the date of delivery to Licensee.
V. MAINTENANCE
Neither BISYS nor the BISYS LICENSOR shall have any responsibility to
maintain the Licensed Materials unless Licensee executes BISYS' Total
Access Banking Additional Services Addendum (the "Addendum"). Upon
execution of the Addendum, maintenance shall be performed by BISYS pursuant
to the terms and conditions of the Addendum.
VI. LIMITATION OF LIABILITY AND REMEDIES
A. BISYS and BISYS LICENSOR'S entire liability and Licensee's exclusive
remedies shall be:
1. The replacement of the software pursuant to the warranty in
Paragraph l(G) above. Any notification by Licensee within the
warranty period shall set forth with particularity any defects or
errors to the system software. Within a reasonable period after
receipt of such notice, BISYS or BISYS Licensor shall correct and
redeliver the System Software to the Licensee, and if accepted by
Licensee, BISYS shall have no further liability. If not
corrected, BISYS will continue to provide the correction to
Licensee at no charge.
2. The replacement of any tape(s), CD-ROM(s) or diskette(s) not
meeting the warranty, described in Paragraph IV(C) above, which
are returned to BISYS, or
3. BISYS is unable to deliver a replacement tape(s), CD-ROM(s) or
diskette(s) which are free of defects in materials or workmanship
within a reasonable time after Licensee has returned such
tape(s), CD-ROM(s) or diskette(s) to BISYS (provided that
Licensee has returned such tape(s), CD-ROM(s) or diskette(s)
within the warranty period described in Paragraph IV(C) above),
Licensee may terminate this Agreement by returning the Licensed
Materials to BISYS and fees paid by Licensee for the Licensed
Materials shall be refunded to Licensee.
B. IN NO EVENT WILL BISYS OR BISYS LICENSOR BE LIABLE TO LICENSEE FOR ANY
DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL
OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE
SUCH LICENSED MATERIALS, EVEN IF BISYS OR BISYS LICENSOR HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY
OTHER PARTY. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO LICENSEE.
Page 3 of 4
VII. GENERAL
A. Licensee may not sublicense, assign or transfer this license or the
Licensed Materials or any related documentation except as expressly
provided in this Agreement, and any attempt to do so shall be void.
B. Should Licensee have any questions concerning this Agreement, it may
contact BISYS by writing to BISYS, Inc., ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
C. Licensee acknowledges that it has read this Agreement, understands it
and agrees to be bound by its terms and conditions. It is further
agreed that the BISYS Services Agreement will govern in the event of
any express conflict between the Services Agreement and this Agreement
with respect to the Licensed Materials.
LICENSEE: Atlanta Internet Bank
BISYS, INC. Client's City/State: Atlanta, GA
Approved:/s/ ▇.▇. ▇▇▇▇▇▇▇ Approved by:/s/ ▇.▇. ▇▇▇▇▇▇
-------------------------- ---------------
Name:▇. ▇. ▇▇▇▇▇▇▇ Name:▇.▇. ▇▇▇▇▇▇
------------------------------ -----------
Title: /s/ Sr. V.P. Date: Title:Vice Chairman Date: March 10, 1997
------------------ ------ ------------ -------------
Page 4 of 4