Exhibit 10.11
MONEYLINE EXPRESS, INC.
AGREEMENT
HOME BANKING ▇▇▇▇ PAYMENT PROCESSING
AND FUNDS TRANSFER SERVICES
1. Parties. This Agreement is between Digital Insight, LLC ("Digital
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Insight") and Moneyline Express, Inc. ("Moneyline").
2. Effective Date. The effective date of this Agreement is February 27,
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1997.
3. Purpose. Digital Insight provides a service to Financial Institutions
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for Financial Institution Customers ("Customers") to pay bills ("▇▇▇▇ Payment
Services" or "Program") and receive other banking services through telephone or
home computer activated instructions (collectively "Home Banking"). Moneyline
provides to Digital Insight as a part of the ▇▇▇▇ Payment Services, back-room
processing of Customer activated payment instructions, funds transfer services
for payment to payees ("Vendors") listed in such instructions, and certain
Customer information services (collectively "Moneyline Services"). Digital
Insight shall provide Moneyline with a list of Financial Institutions under
contract with Digital Insight for ▇▇▇▇ Payment Services, as well as additions or
deletions to such list as they occur.
4. Contractual Relationship. This Agreement is intended and shall be
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construed solely as an independent subcontract of Moneyline to Digital Insight
in the
offering by Digital Insight of ▇▇▇▇ Payment Services. This Agreement is not
intended for the benefit of Financial Institutions, Customers or any other third
persons, and shall not be deemed a joint venture, partnership or similar joint
undertaking.
Digital Insight grants Moneyline rights as an authorized and primary vendor
to provide those services described as Moneyline Services in any and all
offerings by Digital Insight of ▇▇▇▇ Payment Services to Financial Institutions.
Financial Institutions are those depository institutions insured, or eligible
for insurance, by the Federal Deposit Insurance Corporation, or the National
Credit Union Administration.
5. Services. The Moneyline Services provided by Moneyline for Digital
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Insight, and the services provided by Digital Insight as a part of ▇▇▇▇ Payment
Services ("Digital Insight Services") are described in EXHIBIT A.
6. Credit Risk.
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A. Consumer DDA Accounts: Between the parties, Moneyline bears the
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credit risk associated with potential NSF/return items for all consumer DDA
accounts. Moneyline will manage the risk as provided in the procedures which
were previously provided to Company.
B. Business DDA Accounts: Between the parties, Moneyline bears the
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credit risk associated with potential NSF/return items for business DDA accounts
only when all of the following conditions are met:
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(i) Total exposure is limited to a maximum loss of $5,000.00
per business account.
(ii) Only top tier (A and B, as defined in Moneyline's credit
and risk evaluation system) business clients will be offered the
▇▇▇▇ payment service. This means that the business is in good
financial condition and has been a customer of the financial
institution for at least two years. For businesses open less than
two years, Moneyline requires the opportunity to review and
approve or disapprove the financial condition of the business.
Costs associated with this credit review process will be paid by
the participating financial institution.
(iii) Each payment is capped the same as for consumer ▇▇▇▇
payments. The cap on the effective date of this Agreement is
$9,999.00. Moneyline may change the cap from time to time with
the prior consent of Company.
C. Risk Reduction Measures: Moneyline may at its option implement
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reasonable measures to reduce credit risks. These may include but are not
limited to pre-authorized drafts for business customers, verifying funds through
an ATM network, and separating
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debits from credits so that payments are not sent until after good
funds are received.
7. Performance Standards. The Parties agree that they will use all best
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efforts to meet the performance standards necessary to provide the Digital
Insight Services and Moneyline Services, respectively. Failure by any Party, or
the Parties, to meet such standards, shall obligate such Party(s) to take
corrective action as provided in Paragraph 14. Payments delivered over an
automated clearing house system ("ACH"), or other payments network, shall be
governed by and subject to the rules, regulations and performance standards of
such networks.
8. Fees. Digital Insight agrees to pay Moneyline those fees provided in
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EXHIBIT B ("Fee Schedules").
9. Ownership. Each Party shall have and retain sole ownership of their
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respective proprietary source codes and software packages used as a part of the
services described in EXHIBIT A, including any enhancements or improvements
thereon. Digital Insight shall have and retain sole ownership of the interface
developed by it between the respective source codes and software packages,
including any enhances or improvements thereon; Moneyline shall have and retain
sole ownership of source codes provided by it in connection with said interface.
Moneyline shall also retain sole ownership of the Vendor list supplied by it as
a part of the Moneyline Services. No rights of ownership or use by one Party or
by third
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persons, of the proprietary source code and software of the other, or of the
Digital Insight interface by Moneyline or third persons, or of the interface
source data or Vendor list of Moneyline by Digital Insight or third persons,
shall arise by implication or otherwise as a result of this Agreement except
with the express written consent or license by the owner. Any and all rights by
one Party to use and/or possess proprietary property of the other Party shall be
extinguished and returned to the owner immediately upon termination of this
Agreement.
10. Confidentiality. The Parties agree to maintain the confidentiality of
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information and records as described in EXHIBIT C ("Confidentiality").
11. Security. Moneyline shall not be responsible for the loss,
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confidentiality or security of data or other payment information while in
transmission over communications lines, in the postal system, or in an ACH or
other payments network over which payments are delivered.
12. Term. The initial term of this Agreement is three (3) years from the
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effective date. The Agreement shall be automatically renewed for successive one
(1) year terms unless a Party shall give the other Party written notice of its
intent to terminate at least six (6) months prior to the expiration of the
initial or a renewal term.
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13. Cooperation. The Parties will meet periodically to discuss service
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performance, service improvement, or any other issues related to the provision
of ▇▇▇▇ Payment Services. Such meetings shall be held at least annually.
14. Errors. No Party shall be liable for payment errors, payment delays,
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or other performance failures caused solely by software, computer, or other
Program defects under the control and responsibility of the other Party. Action
shall be taken by the responsible Party to correct such Program defects within
sixty (60) days after knowledge by that Party, or notice from the other Party,
of such defects. In the event that the cause of such defects is partly
attributable to both Parties, corrective action shall be the joint
responsibility of both Parties and the expense of any such corrective action
shall be shared.
15. Limitations of Liability.
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A. Liability of Moneyline as the result of any act or omission in
providing Moneyline Services shall not exceed three (3) times the
average amount of monthly fees paid by Digital Insight to Moneyline
(calculated based on the three month period immediately before the act
or omission that gives rise to the claim of liability).
B. Force Majeure - A Party will not be liable for a failure to
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perform, or any loss occasioned thereby, arising out of an event or
condition beyond the reasonable control of such Party and having an
adverse
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affect on the performance by such Party under this Agreement. Such
events shall include, but not be limited to, communications breakdown
or interruption, acts of God, labor disputes, interruption of service
by ACH or other payment networks, and nonperformance by the other
Party under this Agreement. Loss or nonperformance caused by a
breakdown or malfunction of computer equipment under the control of a
Party are not excused, disclaimed or limited under this subparagraph
B.
C. The Parties will not be liable for punitive, consequential,
indirect, remote or special damages.
D. Moneyline will not be liable for any late charges assessed by
Vendors against Customers for payments made by Customers under the
Program.
E. The Parties shall be held to a standard of due care in accordance
with recognized industry practices of the highest standards.
16. Mediation. The Parties agree that any controversy or claim arising out
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of or relating to this Agreement shall be submitted to non-binding mediation
with a person or persons independent of the Parties and mutually acceptable to
them. The Parties shall use their best efforts and in good faith seek resolution
of any such claim
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or controversy through mediation, but in the event of failure to do so, may seek
such other remedies as provided by law.
17. Warranties - Cross Indemnification. The Parties hereby warrant and
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represent to each other that they have all rights necessary to perform their
respective obligations under this Agreement and that the respective Moneyline
Services and Digital Insight Services to be provided hereunder shall be
conducted in a professional, workmanlike manner. EXCEPT AS SPECIFICALLY PROVIDED
IN THIS PARAGRAPH, THE PARTIES MAKE NO WARRANTIES EITHER EXPRESS OR IMPLIED
INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
The Parties shall each indemnify, defend and hold harmless the other Party
from and against any and all claims by third persons, together with all damages,
demands, liabilities, costs and expenses, including reasonable attorney's fees
and expenses, incurred by the indemnitee as the result of such claims, which
proximately results from and is solely caused by any act or omission of the
indemnitor, its employees, agents or representatives performing on behalf of the
indemnitor hereunder, or arises out of performance of the Services to be
provided by the indemnitor hereunder.
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18. Termination. A Party may terminate this Agreement by giving the other
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Party six (6) months written notice of termination prior to a term expiration
date as provided in Paragraph 11.
A Party may also at its option terminate this Agreement prior to a term
expiration date upon occurrence of any of the following events ("Events of
Default"):
1. If either Party fails to correct errors or defects under the
conditions and within the period provided in Paragraph 14, including,
but not limited, to defects in software performance adversely
affecting the provision of ▇▇▇▇ Payment Services.
2. If Digital Insight fails to pay to Moneyline the fees as required in
EXHIBIT B, and fails to make such payments within sixty (60) days
after demand by Moneyline to Digital Insight for such payments.
3. Any other material breach by a Party of its obligations under this
Agreement and said Party fails to cure said breach within one hundred
twenty (120) days after written notice from the other Party.
4. Immediately, upon written notice of a Party, when the other Party
becomes insolvent, makes an assignment for the benefit of creditors,
admits in writing an inability to pay its debts when they become due,
or files a petition for bankruptcy or reorganization under Federal or
State
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bankruptcy laws, or is subject to a proceeding commenced in bankruptcy
which is not vacated or stayed within thirty (30) days.
19. Rights after Termination. Upon termination, all rights and obligations
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of the Parties hereunder for the provision of ▇▇▇▇ Payment Services shall cease
and be of no further effect whatsoever, provided that any payments by Customers
activated prior to termination date but not completed by termination date shall
be carried out in accordance with this Agreement. The continued use or
possession by a Party of proprietary property or confidential information of the
other Party shall cease and be immediately returned to the other Party provided,
however, that the universal Vendor list prepared by Moneyline for Digital
Insight's Customers of Moneyline Services may be purchased by Digital Insight at
a price established by Moneyline at its discretion.
20. Assignment/Guarantee. This Agreement shall be binding on the Parties
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and their respective successors and assigns. Digital Insight shall not assign
its rights and obligations hereunder without the express written consent of
Moneyline, its successors or assigns. Moneyline Company, Inc. guarantees the
performance of the obligations of PayMate, Inc. under this Agreement.
21. Notices. Notices may be sent by registered or certified mail, return
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receipt requested, or by facsimile transmission followed by overnight delivery
of the original copy addressed to:
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MONEYLINE EXPRESS, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇, Vice President
DIGITAL INSIGHT, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Notices so addressed are effective when received and may be changed by prior
written notice to the other Party of the new address and effective date.
22. General Provisions. This Agreement, together with Exhibits, is the
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entire agreement between the Parties and may be amended only in writing signed
by both Parties. The failure of either Party to exercise or enforce its rights
hereunder shall not be deemed as a waiver of such right or of the power to
enforce such rights. This Agreement may be executed in counterparts, all of
which taken together constitute one single agreement. Paragraph headings are for
reference and convenience only and are not a part of this Agreement.
23. Governing Law. This Agreement shall be governed by the laws of the
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state of Minnesota and the Parties explicitly agree and submit to the
jurisdiction and venue of the United States District Court, District of
Minnesota, or any Minnesota Court of general jurisdiction, for any legal action
brought to enforce this Agreement.
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24. Effect. This Agreement terminates and replaces in entirety the PayMate
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Agreement between the parties effective May 8, 1996, which Agreement, including
all exhibits thereto, shall be of no further effect whatsoever.
The Parties have caused this Agreement to be signed and delivered as of the
effective date provided above.
Digital Insight, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
Title: President/CEO
Date: Feb. 27, 1997
Moneyline Express, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
Date: 3/2/97
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EXHIBIT A
SOFTWARE-SERVICE DEFINITIONS
MONEYLINE SERVICES
▇▇▇▇ PAYMENT BACK-END PROCESSING--
1. Accurate payment data, including Customer account number and payment
information, provided by Customers in files supplied Moneyline by Digital
Insight, will be processed under normal processing time frames and remitted
either via check or ACH to Vendors.
2. Funds transfer in accordance with Customer payment instructions activated
in accordance with paragraph 1.
3. Supplying of information and handling of Customer inquiries regarding
payments made on behalf of Customer Vendors.
4. Provide the use of voice software for telephone ▇▇▇▇ payment.
DIGITAL INSIGHT SERVICES
PC HOME BANKING AND ▇▇▇▇ PAYMENT FRONT-END SOFTWARE--
1. Digital Insight will develop the applications software required to operate
Customer PC for home banking services including Web Site Offering for
activation of payment instructions through interface with Moneyline back-
end ▇▇▇▇ payment processing software and other home banking services.
2. Support for Digital Insight Payment Transactions
Digital Insight will, on request by Moneyline, cooperate to remedy Customer
account inquiries related to the applications software provided above.
Exhibit A
to Software License Agreement
In this Agreement between Moneyline Digital Insights, Inc., and Digital
Insights, "Moneyline Software" means the software that resides on an NT server
and accepts, stores, and processes ▇▇▇▇ payment transactions from "Digital
Insight's" access devices. "Moneyline Software" includes voice software for
telephone ▇▇▇▇ payment which will reside on Digital Insights's hardware.
Digital Insight pricing sheet
2/20/97 Exhibit B
APPLICABLE FEE STRUCTURE
STOP PAY FLAT FEE TRANSACTION FEES
FL SET UP FEE NSF FEE FEE PER CUST./MO. APPLICABLE TO ALL MARKET SEGMENTS
Commercial Banks $**** $15.00 $15.00 $****
Mthly Trans Trans fees
After 5/98 FIRST 50,000 $****
XP Systems and Symitar $**** $15.00 $15.00 NEXT 50,000 $****
NEXT 100,000 $****
NEXT 150,000 $****
Users, Inc. and other $**** $15.00 $15.00 $**** Next 150,000 $****
new credit union alliances Over 500,000 $****
2/20/97
APPLICABLE FEE STRUCTURE
CUST. SERV.
APPLICATION FEE PER MO.
FEES PER USER
Commercial Banks $**** $****
AFTER 5/98 AFTER
XP Systems and Symitar $**** $****
Users, Inc. and other $**** $****
new credit union alliances
MONTHLY MINIMUMS
MONTH VALUE
1-2 $****
3-5 $****
6-10 $****
11+ $****
These prices are gauranteed for one year with the exception of Xp Systems and
Symitar pricing which is good until the Credit Union contract renewal. at that
time, Xp Systems and Symitar FI's flat fee will be split 50/50 if less than
$****, and if more than $**** then $**** will go to Digital Insight and the
remainder will go to Moneyline Express.
If one renewal, the minimum flat fee stays at $****, one-half goes to Moneyline
Express. pricing for current Moneyline Express Home Banking and PC ▇▇▇▇ Payment
Clients will be separate from this agreement Exceptions to the above pricing
include ****, with a flat fee will be $**** per mo/per user and ****, with a
flat fee will be $**** per mo/per user
These prices will be considered for adjustment on the anniversary date of the
agreement. Prices may increase no more than the cpi for the previous 12 month
period plus ****%.
Other services priced separately
MONEYLINE EXPRESS CO., INC. CONFIDENTIAL INFORMATION
[****] Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with
respect to the omitted portions.
Exhibit C
CONFIDENTIALITY
1. CONFIDENTIAL INFORMATION. The parties may disclose to each other
information and materials including the following:
* business plans;
* qualitative aspects of the parties' businesses, including pricing,
marketing, customer/trustee selection, names and addresses of
customers/trustees;
* historical financial results;
* geographical distribution of customers/trustees and operations;
* methodology for projecting losses, including data used in the analysis and
benchmarks;
* financial statements;
* polices and procedures;
* risk assessment methods, risk evaluation systems;
* reports, data, figures, statistics, analysis, compilations, summaries,
plans, projections;
* charts, graphs, tapes, diskettes, papers, books, records, materials, and
information in any medium.
All of this information is confidential information except as specifically
excluded below.
2. RESTRICTIONS ON USE OR DISCLOSURE. The parties agree that they will not use
or disclose any confidential information that they receive except as is
reasonably necessary for the purposes of this agreement.
3. INFORMATION EXCLUDED. The following is not confidential information:
* information which is in the public domain;
* information which, through no fault of a party, becomes part of the public
domain;
* information which a party can show was in its possession prior to the time
of disclosure; or
* information which is rightfully received by a party from a third party
without obligation of confidentiality.
4. COURT ORDERS AND SUBPOENAS. A party may disclose confidential information
as required by a court order or subpoena, but the information remains
confidential and subject to this confidentiality agreement. Each party
agrees to notify the other party immediately and to cooperate in any lawful
effort to contest the subpoena or other legal process.
5. MATERIALS. Materials in any medium containing confidential information,
whether furnished to a party by the other party or prepared by a party, are
the sole property of the party whose information is contained in the
materials and must be kept confidential and delivered to the party on
request.
6. REMEDIES. Any breach of this confidentiality agreement may cause
irreparable harm. Each party agrees that in the event of a breach the other
party may seek injunctive relief in addition to its other remedies.
Exhibit D
SOFTWARE LICENSE AGREEMENT
1. INCORPORATION BY REFERENCE. This Software License Agreement is part of the
foregoing Agreement between Moneyline Express, Inc. ("Moneyline") and
Digital Insight, LLC ("Digital Insight").
2. SOFTWARE. "Moneyline Software" is defined as software that resides on an NT
server and accepts, stores and processes ▇▇▇▇ payment transactions from
Digital Insights access devices. Moneyline Software includes voice software
for telephone ▇▇▇▇ payments which will reside on Digital Insights hardware.
3. PURPOSE. This License authorizes Digital Insights to use Moneyline Software
at Digital Insight's site on its hardware for the purpose of selling any of
the Moneyline Express, inc. ▇▇▇▇ payment and home banking services to
Digital Insights's customers.
4. LICENSE. Moneyline grants to digital insights a non-exclusive license to
use the Moneyline Software as provided herein. The Software remains the
sole property of Moneyline.
5. CONDITIONS OF THE LICENSE. Without the prior written consent of Moneyline,
Digital Insights shall not do any of the following:
A. Copy the Moneyline Software or manuals or other materials containing
information about the Software;
B. Reverse compile Moneyline Software or permit any other person to do
so;
C. Permit any third person to inspect the Moneyline Software, manuals, or
other materials containing information about the software;
D. Transfer the Moneyline Software, manuals or other materials containing
any information about the Software to any third person;
E. Make any modifications, additions, or upgrades to the Moneyline
Software.
6. CONFIDENTIALITY.
A. "Confidential information" means the Moneyline Software, manuals, and
all information about the Software, except:
(1) information which is in the public domain before it is
received by Digital Insights from Moneyline;
(2) information which, through no fault of Digital Insights,
becomes part of the public domain after it is received by
Digital Insights from Moneyline;
(3) information which Digital Insights can show was in its
possession prior to the time of disclosure and was not
received directly or indirectly from Moneyline on a
confidential basis; or
(4) information which is rightfully received by Digital Insights
from a third party which did not acquire such information
directly or indirectly from Moneyline on a confidential
basis.
B. Digital Insights agrees to keep Confidential Information confidential
and not disclose it to any person other than Digital Insights's
employees or contractors who require knowledge in order for Digital
Insights to carry out the purpose of this License. Digital Insights
agrees to use the Confidential Information only to carry out the
purpose of this License and for no other purpose. Digital Insights
agrees that every person to whom any Confidential Information is
disclosed shall be required to comply with this confidentiality
agreement.
7. IDENTIFYING MARKS. Digital Insights will not remove or obscure any marks
which identify the Moneyline Software, manuals or other materials as
Moneyline's property. Digital Insights agrees to display screens a notice
of Moneyline's intellectual property rights as directed by Moneyline.
8. DISCLAIMER OF WARRANTIES. Moneyline DISCLAIMS ALL WARRANTIES, INCLUDING ANY
WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE. Moneyline makes no warranty against infringement of patent or
intellectual property rights of third parties.
9. INSTALLATION. Digital Insights is responsible for installation of the
Moneyline Software.
10. RISK OF LOSS AND INDEMNITY.
A. Digital Insights is responsible for any loss, theft, or damage to the
Moneyline Software, manuals or materials from the time that they are
delivered to the shipper until they are returned to Moneyline.
B. Digital Insights will indemnify Moneyline, its subsidiaries, its
corporate parent, and their directors, officers, employees and agents
for all losses, damages, claims, lawsuits, judgments, liabilities or
expenses (including reasonable attorneys' fees) which arise from or
relate to this License or Digital Insights's use of the Moneyline
Software.
11. TERM AND TERMINATION.
A. This License is in effect until terminated as provided in this section
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B. Moneyline may terminate this License immediately upon written notice
to Digital Insights if Digital Insights has materially breached this
License. In addition, either party may terminate at any time without
cause after 60 days advance written notice to the other party.
C. Upon termination of this License, Digital Insights shall immediately
stop using the Software, delete it from all computers, and promptly
certify compliance with this provision to Moneyline. Digital Insights
shall promptly return the Software, manuals and other materials
containing information about the Software to Moneyline at Digital
Insights's expense.
D. Sections 5, 6, 8, 9, and 11 survive termination of this License.