Exhibit 10.50
Agreement Number: ML-053
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Effective Date: March 17, 1997
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LICENSE AGREEMENT
This License Agreement (the "Agreement") made this 17th day of March, 1997 by
and among MILLENNIUM DYNAMICS, INC., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
("Millennium Dynamics, Inc.") and PROVIDENT BANK, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇ (hereinafter collectively referred to as the "Customer").
W I T N E S S E T H:
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WHEREAS, Millennium Dynamics, Inc. has developed and is the owner of certain
computer software programs it desires to license to the Customer; and
WHEREAS, the Customer desires to license such programs from Millennium Dynamics,
Inc.
NOW, THEREFORE, in consideration of the mutual terms and conditions set forth
herein, the parties agree hereto as follows:
1. DEFINITIONS.
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For purposes of this Agreement, the following terms shall have the meanings set
forth below:
1.1 Confidential Information -- "Confidential Information" means the Software
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(as defined herein) and all information disclosed to or known by the
Customer about Millennium Dynamics, Inc.'s marketing strategy, business
practices, customers, finances, products, software, computer programs,
services, methods and processes. "Confidential Information" also includes
any and all information which this Agreement provides shall be deemed to
be Confidential Information.
1.2 Agreement. -- This "Agreement" shall mean and include this document, all
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Schedules, Appendices, Product Description Manuals, and Addenda attached to
this document or added to it by amendment or incorporated herein by
references.
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2. GRANT.
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Subject to the terms and conditions of this Agreement and in consideration of
the payment of specified fees by the Customer, Millennium Dynamics, Inc. hereby
grants to the Customer a nonexclusive right to use the object code version of
each computer program listed on the Software Schedule attached hereto and
incorporated herein by reference and all manuals, instructions, documentation
coding sheets and other documents or information relating thereto (collectively,
the "Software") at the computer site(s) and on the CPU(s) indicated for such
programs on the Software Schedule. This license is for the designated CPU(s) at
the designated site. The Customer has no right to copy any of the Software,
except for purposes of system backup. On any backup copy of the Software, the
Customer shall reproduce all original copyright notices and claims of
confidentiality, proprietary rights or trade secret.
3. LIMITS ON USE.
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The Customer shall use the Software for the Customer's internal purposes only
for its own business purposes and shall not use the Software for the benefit of
or to provide services to any third party or unaffiliated organization. Without
limiting the generality of the foregoing restriction, the Customer shall not use
any of the Software to perform data processing services or service bureau
activities for a third party or an unaffiliated organization. The license
granted to Customer hereunder does permit the Customer to use the Software for
the benefit of Customer's affiliates, so long as such use is on the designated
CPU(s) at the designated site identified on the Software Schedule.
4. FEES AND TAXES.
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For each site listed on the Software Schedule, the Customer shall pay to
Millennium Dynamics, Inc. the license fees specified on the Software Schedule
upon installation of the Software at such site.
4.1 Due Date. -- Unless otherwise specified in this Agreement, all amounts
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payable by the Customer to Millennium Dynamics, Inc. shall be paid within
thirty (30) days after the date of Millennium Dynamics, Inc.'s invoice to
the Customer for such amounts.
4.2 Late Payment. -- If the Customer fails to make payment when due hereunder,
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then the Customer shall pay interest to Millennium Dynamics, Inc. at the
rate of one and one half percent (1.5%) per month for any unpaid balance
(including previously accrued interest charges) outstanding at the end of
each calendar month after payment is first due. The Customer shall also
pay Millennium Dynamics, Inc. for any reasonable expenses (including
attorneys' fees) incurred
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by Millennium Dynamics, Inc. in connection with the collection of any
amounts due to Millennium Dynamics, Inc. from the Customer.
4.3 Taxes. -- All amounts specified in this Agreement to be paid to Millennium
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Dynamics, Inc. by the Customer are net of taxes. Thus, if Millennium
Dynamics, Inc. or the Customer is required to pay any sales, use, export,
import, excise or other taxes (whether federal, state, local or otherwise)
imposed with respect to this Agreement or any of the transactions
contemplated hereby, such taxes shall be paid by the Customer or the
Customer shall reimburse Millennium Dynamics, Inc. for any such taxes paid
by Millennium Dynamics, Inc. Taxes based on Millennium Dynamics, Inc.'s
net income and Millennium Dynamics, Inc.'s franchise taxes shall be the
sole responsibility of Millennium Dynamics, Inc.
5. ADDITIONAL SITES OR CPU(S).
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New sites or CPU(s) other than those listed on the Software Schedule will
require a license fee as specified in the Software Schedule. Any upgrade of a
CPU will also require an additional fee as determined by Millennium Dynamics,
Inc. The new site or CPU(s) fee shall be listed on an amended Software Schedule
and the license fee shall be paid in accordance with Section 4. above.
6. CONFIDENTIALITY AND OWNERSHIP.
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The Software and all derivatives and modifications thereof (including ones made
by or for the Customer) shall at all times be and remain the property of
Millennium Dynamics, Inc., and the Customer shall have no rights thereto except
as explicitly provided elsewhere in this Agreement. The Software and all
derivatives and modifications thereof shall be deemed to be Confidential
Information of Millennium Dynamics, Inc. and shall be subject to the terms and
provisions of this Agreement which govern Confidential Information.
6.1 General. -- The Customer will keep confidential, will use only for the
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Customer's benefit as expressly permitted elsewhere in this Agreement and
will not disclose to others without Millennium Dynamics, Inc.'s prior
written approval, all Confidential Information.
6.2 Limited Access. -- The Customer shall limit access to Confidential
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Information to those employees who require such access in order to permit
the Customer to use the Confidential Information as expressly permitted
elsewhere in this Agreement in furtherance of the Customer's business.
6.3 Best Efforts. -- The Customer shall take all reasonable precautions to
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maintain the confidentiality of all Confidential Information. Without
limiting the generality
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of the foregoing, the Customer shall employ precautions for the protection
of Confidential Information which are no less stringent than those employed
by the Customer to protect its own confidential and proprietary information
and/or trade secrets.
6.4 Return or Destruction. -- If at any time the Customer has in its possession
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or under its control one or more copies (whether partial or complete) of
any Confidential Information which the Customer does not at such time,
pursuant to the terms of this Agreement, have the right to use at the
designated site(s) and/or on the designated CPU(s), then the Customer shall
(without the requirement of any notice or demand from Millennium Dynamics,
Inc.) either deliver to Millennium Dynamics, Inc. or destroy all such
copies, whether partial or whole and regardless of form. If the Customer
elects to destroy such copies, it agrees to notify Millennium Dynamics,
Inc. promptly that such copies have been destroyed.
7. EXCLUSION OF WARRANTIES.
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EXCEPT AS EXPLICITLY PROVIDED ELSEWHERE IN THIS AGREEMENT, ALL INFORMATION,
PRODUCTS AND/OR SERVICES PROVIDED TO THE CUSTOMER BY MILLENNIUM DYNAMICS, INC.
ARE PROVIDED "AS IS" AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES WHATSOEVER,
INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
8. LIMITED WARRANTIES.
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8.1 General Provisions. -- In any case for which two or more limitations of
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Millennium Dynamics, Inc.'s liability are specified in this Agreement,
Millennium Dynamics, Inc.'s liability shall be limited to the smallest of
such limitations. In no event shall Millennium Dynamics, Inc. be liable
(under any contract, tort, or other theory) for any special, indirect,
incidental or consequential damages arising out of or in connection with
this Agreement, including, without limitation, loss of anticipated profits
or loss resulting from business disruption, even if Millennium Dynamics,
Inc. has been advised of the possibility of such damages. In no event
shall the liability of Millennium Dynamics, Inc. for damages arising out of
or in connection with this Agreement (under any contract, tort, or other
theory) exceed the amount of all payments actually received by Millennium
Dynamics, Inc. from the Customer in connection with the programs
responsible for such damage.
8.2 Media. -- Millennium Dynamics, Inc. hereby warrants to the Customer that
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all of the magnetic media delivered to the Customer by Millennium Dynamics,
Inc. on which any of the Software is recorded (including any disks or
tapes, but
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excluding the information recorded thereon) are free from
defects in materials and faulty workmanship at the time of shipment by
Millennium Dynamics, Inc. If any defect exists at the time of shipment
which is detected within ninety (90) days of the time of shipment, then the
defective item will be replaced by Millennium Dynamics, Inc. at no charge
to the Customer. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES ON THE
MAGNETIC MEDIA, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL
MILLENNIUM DYNAMICS, INC. BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES ARISING FROM ANY DEFECTS IN THE MAGNETIC MEDIA.
8.3 Software. -- For each program listed on the Software Schedule, subject to
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the limitations of liability contained in this Agreement, Millennium
Dynamics, Inc. warrants that such program (as delivered to the Customer and
when used by the Customer without modification for its intended purpose and
in accordance with this Agreement) (i) does not and will not infringe,
violate or invade any United States copyright, trade secret, patent, or
other proprietary right of any third party, and (ii) so long as such
program is supported by Millennium Dynamics, Inc. and unmodified by the
Customer and used in accordance with this Agreement, it will operate
substantially as specified within the product description manual. EXCEPT
FOR THE FOREGOING WARRANTIES OF NON-INFRINGEMENT AND OPERATION IN
SUBSTANTIAL COMPLIANCE WITH SPECIFICATIONS, THE SOFTWARE IS PROVIDED "AS
IS", WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT
NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
8.4 Limitation of Liability. -- IN NO EVENT SHALL MILLENNIUM DYNAMICS, INC. BE
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LIABLE (UNDER ANY CONTRACT, TORT, OR OTHER THEORY) FOR ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT
OR IN CONNECTION WITH THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, LOSS OF
ANTICIPATED PROFITS OR LOSS RESULTING FROM BUSINESS DISRUPTION, EVEN IF
MILLENNIUM DYNAMICS, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT SHALL THE LIABILITY OF MILLENNIUM DYNAMICS, INC. FOR
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE
SOFTWARE (UNDER ANY CONTRACT, TORT OR OTHER THEORY) EXCEED THE AMOUNT OF
FEES ACTUALLY RECEIVED BY MILLENNIUM DYNAMICS, INC. FROM THE CUSTOMER IN
CONNECTION WITH THE PROGRAM(S) RESPONSIBLE FOR SUCH DAMAGES.
8.5 Correction of Errors. -- The Customer understands and accepts the risk that
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errors may exist or occur in the Software, and agrees that no such error
will be deemed to violate the warranty contained in subpart (ii) of Section
8.3 of this
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Agreement, provided Millennium Dynamics, Inc. diligently investigates and
attempts to correct such error after the Customer reports it to Millennium
Dynamics, Inc. Without limiting the generality of the foregoing, the
Customer accepts responsibility for testing the accuracy of any and all
conversion generated by the Software and agrees that in the event of any
error, Millennium Dynamics, Inc. shall have no liability for any lost
profits or other damages suffered by the Customer in connection with the
Customer's reliance upon the results of such conversion.
8.6 Indemnification. -- Subject to the limitations of liability contained in
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this Agreement, and this Section 8, Millennium Dynamics, Inc. agrees to
indemnify and hold harmless the Customer from all costs, expenses
(including reasonable attorneys' fees), losses, liabilities, damages, and
settlements arising out of or in connection with any claim or suit based on
allegations which, if true, would constitute a breach of the warranty of
non-infringement contained in subpart (i) of Section 8.3 of this Agreement.
HOWEVER, IN NO EVENT SHALL THE LIABILITY OF MILLENNIUM DYNAMICS, INC. UNDER
THIS SECTION 8.6 EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY MILLENNIUM
DYNAMICS, INC. FROM THE CUSTOMER IN CONNECTION WITH THE PROGRAM(S) WHICH
PURPORTEDLY VIOLATE SUCH WARRANTY.
8.6.1 Notice. -- The Customer shall as soon as practicable, notify
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Millennium Dynamics, Inc. in writing of any claim or suit which might give
rise to a claim for indemnification by Millennium Dynamics, Inc. hereunder.
8.6.2 Defense. -- In the event of such a claim or suit, Millennium
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Dynamics, Inc. will employ counsel for the defense and settlement thereof,
shall file proper pleadings in said suit within the time required by law,
and shall keep the Customer informed of all developments. If the suit is
brought to trial, Millennium Dynamics, Inc. shall conduct the defense
thereof. The Customer, at its own election and expense, shall always have
the right to employ its own counsel and to monitor Millennium Dynamics,
Inc.'s activities. In such event, Millennium Dynamics, Inc. and the
Customer shall cooperate fully.
8.7 Right to Cure or Terminate. -- If any claim or suit based on allegations,
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which, if true, would constitute a breach of the warranty of non-
infringement contained in subpart (i) of Section 8.3 of this Agreement with
respect to one of the program(s) listed on the Software Schedule, is
brought or threatened against either Millennium Dynamics, Inc. or the
Customer, then Millennium Dynamics, Inc. shall have the right, at its
option and expense, to do any one or more of the following:
8.7.1 Obtain for the Customer the right to continue using such program
or a modified version thereof;
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8.7.2 Replace all or part of such program with a non-infringing
program, or
8.7.3 Terminate the license granted to the Customer with respect to
such program and refund to the Customer an amount equal to the unamortized
portion of the license fees paid to Millennium Dynamics, Inc. by the
Customer in connection with such program. For these purposes, license fees
shall be amortized on a straight line method over five years; thus, the
unamortized portion of an license fee would be equal to the greater of (a)
zero and (b) the initial license fee divided by 5, then divide that
quotient by 12, and multiply that quotient by the difference between 60 and
the number of months since the license fee was received by Millennium
Dynamics, Inc. (for example, if the license is terminated after twelve (12)
months, 6,000 (divided by) 5 = 1,200; 1,200 (divided by) 12 = 100; 100 x
(60 - 12) = $4,800).
9. MAINTENANCE.
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9.1 Error Correction. -- So long as Millennium Dynamics, Inc. continues to
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support the programs listed on the Software Schedule, Millennium Dynamics,
Inc. agrees to diligently investigate and attempt to correct any error in
such programs reported to Millennium Dynamics, Inc. by the Customer and
determined by Millennium Dynamics, Inc. to be an error in such programs or
in the operating procedures recommended by Millennium Dynamics, Inc. Such
services shall be provided as a part of "Maintenance" described below.
However, if Millennium Dynamics, Inc. determines that any error reported by
the Customer is not an error in such programs or operating procedures, the
Customer promptly shall pay Millennium Dynamics, Inc. for its services in
investigating and/or correcting such error at Millennium Dynamics, Inc.'s
then current consulting fees and shall reimburse Millennium Dynamics, Inc.
for reasonable travel and living costs incurred in connection with such
services.
9.2 Updates and Related Products. -- For each program listed on the Software
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Schedule, Millennium Dynamics, Inc. may from time to time, at Millennium
Dynamics, Inc.'s option, develop and distribute a new version or revision
of such program (an "Update") or a new product which is related to such
program and may in fact be a derivative of such program (a "Related
Product"). In general, a program which simply corrects errors or enhances
the existing features and functions of a program is an Update, while one
which adds new functions and features is a Related Product. Whenever there
is any question whether a particular program is an Update or a Related
Product, Millennium Dynamics, Inc. shall make a determination which shall
be binding upon both Millennium Dynamics, Inc. and the Customer.
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Millennium Dynamics, Inc. shall provide to the Customer, for the
maintenance fees identified on the Software Schedule, all Updates to all
programs listed on the Software Schedule (herein referred to as
"Maintenance"). All Updates provided to the Customer hereunder shall be
deemed to be Software and Confidential Information and shall be subject to
the provisions of this Agreement. The Customer will be contractually
obligated to maintain the Software based on the most recent version that
Millennium Dynamics, Inc. releases. Failure by the Customer to do so will
release Millennium Dynamics, Inc. of any warranty or performance liability
hereunder. Millennium Dynamics, Inc. shall offer to the Customer, for
additional fees to be determined by Millennium Dynamics, Inc. at the time
of the offering, the option to add any Related Product to the Software
Schedule.
The Customer shall be responsible for the installation of all Updates and
any Related Product, unless otherwise agreed upon by the parties upon
mutually acceptable terms. If the Customer requests that Millennium
Dynamics, Inc. perform installation, then the Customer shall pay Millennium
Dynamics, Inc. for such services at Millennium Dynamics, Inc.'s then
current consulting rates and shall reimburse Millennium Dynamics, Inc. for
reasonable travel and living expenses.
9.3 Maintenance Fees. -- The Customer shall receive the first year of
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Maintenance at no charge. The first year of Maintenance shall commence on
the effective date of this Agreement and shall terminate automatically on
the day before the first anniversary of the effective date of this
Agreement. The second year and each year thereafter of Maintenance shall
be calculated in the same manner. The Customer shall have the option to
purchase subsequent years of Maintenance at the rate identified on the
Software Schedule. Customer shall notify Millennium Dynamics, Inc. thirty
(30) days before the end of the first anniversary of the effective date of
this Agreement whether it intends to acquire Maintenance for the subsequent
period. Customer may elect to terminate Maintenance for any subsequent
period by providing Millennium Dynamics, Inc. notice thirty (30) days
before the anniversary of an effective date of this Agreement. A
termination of maintenance does not preclude the Customer from using the
Software. However, if the Customer elects at any time not to receive
Maintenance and then subsequently makes such an election, Customer shall be
required to pay for the periods during which Maintenance is not provided as
a condition to receiving Maintenance for the current period.
9.4 Limited Warranties. -- Millennium Dynamics, Inc. shall perform all
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maintenance services hereunder in a proper and workmanlike manner in
accordance with industry standards. The preceding warranty granted by
Millennium Dynamics, Inc. herein for Maintenance is a limited warranty
only. The parties agree that the Maintenance and related limited liability
warranty consist of a contract for services and are not covered by Article
II of the Uniform Commercial Code. THIS WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED
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WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF
WHICH ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL MILLENNIUM DYNAMICS, INC.
BE LIABLE (UNDER ANY CONTRACT, TORT, OR OTHER THEORY) FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM THE PERFORMANCE
OF THIS AGREEMENT OR IN CONNECTION WITH MAINTENANCE, INCLUDING, WITHOUT
LIMITATION, LOSS OF ANTICIPATED PROFITS OR LOSS RESULTING FROM BUSINESS
DISRUPTION, EVEN IF MILLENNIUM DYNAMICS, INC. HAS BEEN ADVISED TO THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF MILLENNIUM
DYNAMICS, INC. FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH MAINTENANCE
(UNDER ANY CONTRACT, TORT OR OTHER THEORY) EXCEED THE AMOUNT OF FEES
ACTUALLY RECEIVED BY MILLENNIUM DYNAMICS, INC. FROM THE CUSTOMER IN
CONNECTION WITH MAINTENANCE.
9.5 Unsupported Programs. -- If the Software Schedule indicates that a
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particular program is unsupported, Millennium Dynamics, Inc. shall have no
obligation to correct errors in such program. If Millennium Dynamics, Inc.
no longer wishes to support a program which is listed on the Software
Schedule, then Millennium Dynamics, Inc. shall have the right to amend the
Software Schedule to indicate that such program is unsupported in
accordance with the following procedure:
9.5.1 Millennium Dynamics, Inc. shall provide written notice to the
Customer that the program will cease to be supported on a specified date
(the "Cutoff Date") which must be at least six (6) months in the future;
9.5.2 Until after the Cutoff Date, Millennium Dynamics, Inc. shall
continue to support such program and the Customer shall continue to pay any
fee(s) specified on the Software Schedule for such program; and
9.5.3 On and after the Cutoff Date, the Software Schedule shall be
amended to indicate that such program is unsupported. Millennium Dynamics,
Inc. shall have no further obligation to correct errors in the Program, the
warranty contained in subpart (ii) of Section 8.3 of this Agreement shall
no longer be effective with respect to such program, and the Customer shall
have the right to receive a copy of the source code for such program as
provided in Section 9.6 of this Agreement.
9.6 Source Code. -- For any program listed on the Software Schedule, if
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Millennium Dynamics, Inc. designates such program as unsupported, then the
Customer shall have the right to receive upon demand a copy of the source
code for such program subject to the following terms and conditions:
9.6.1 The source code for such program shall be deemed to be
Confidential Information of Millennium Dynamics, Inc. and shall be subject
to the
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terms and provisions of the Agreement which govern Confidential
Information;
9.6.2 The Customer shall have a nonexclusive right to use the source
code version of such program for the limited purpose of maintaining the
object code version of such program so that it can be used by the Customer
at the designated sites and on the designated CPU(s) listed on the Software
Schedule.
9.6.3 The source code for such program shall be deemed to be Software
within the meaning of this Agreement.
9.7 Source Code Escrow.
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Millennium Dynamics, Inc. will maintain a copy of the source code for the
Software in escrow for the benefit of the Customer and all other customers of
Millennium Dynamics, Inc. with Star Bank N.A., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇. Millennium Dynamics, Inc. will pay all fees associated with such
source code escrow or a successor escrow agent.
10. INSTALLATION.
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Millennium Dynamics, Inc.'s standard initial installation shall be no more than
delivery of a copy of the licensed programs to the designated site. If the
Customer requests that Millennium Dynamics, Inc. perform more extensive
installation procedures, then the Customer shall pay Millennium Dynamics, Inc.
for such services at Millennium Dynamics, Inc.'s then current consulting rates
and shall reimburse Millennium Dynamics, Inc. for reasonable travel and living
expenses.
11. MANUALS.
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11.1 No Charge. -- Millennium Dynamics, Inc. will provide to the Customer, at no
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additional cost to the Customer, the number of manuals for each program as
indicated on the Software Schedule.
11.2 Additional Charge. -- The Customer shall pay all shipping charges for
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copies of manuals and other documentation which is sent to the Customer by
Millennium Dynamics, Inc.
12. SPECIAL LICENSES.
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If Millennium Dynamics, Inc. provides any program to the Customer which is not
listed on the Software Schedule, then (a) such program shall be deemed
Confidential
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Information and (b) the Customer shall have no right to use, copy or disclose
such program unless the Customer is granted such rights pursuant to some other
license or sublicense agreement between the Customer and Millennium Dynamics,
Inc. or a third party specified by Millennium Dynamics, Inc. (a "Special
License"). If Millennium Dynamics, Inc. provides any such software to the
Customer pursuant to a Special License, then the Customer shall be bound by the
terms and conditions of such Special License.
13. EDUCATION.
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13.1 Training Classes. -- The Customer will be entitled to have two (2)
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individuals of its selection attend a two day training class held in
Cincinnati, Ohio at the offices of Millennium Dynamics, Inc. at times and
dates agreed upon by the parties. There will be no additional cost to the
Customer for attendance of its designees at this class. Travel and other
expenses for the attendance of these individuals are the responsibility of
the Customer.
13.2 Telephone Support -- As a part of Maintenance, Millennium Dynamics, Inc.
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will provide reasonable user support for the Customer's employees by
telephone in connection with the Customer's use of information, products
and services provided to the Customer by Millennium Dynamics, Inc. pursuant
to this Agreement. Such support shall be limited to answering questions
about the use and/or operation of such information, products and/or
services. Millennium Dynamics, Inc. shall have no obligation pursuant to
this Section to perform any design or consulting services for the Customer.
14. TERMINATION.
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14.1 Procedure. -- This Agreement may be terminated as follows:
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14.1.1 License Fee. -- Millennium Dynamics, Inc. shall have the right to
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immediately terminate this Agreement if the Customer fails to make any
payment due under this Agreement within fifteen (15) days after its due
date.
14.1.2 Breach/Limits on Use. -- In the event of a breach of Section 3,
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the non-defaulting party may terminate this Agreement immediately with
written notice to the defaulting party specifying with particularity the
breach.
14.1.3 Breach/Confidentiality and Ownership. -- In the event of a breach
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of Section 6, the non-defaulting party may terminate this Agreement
immediately with written notice to the defaulting party specifying with
particularity the breach.
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14.1.4 Breach/Other Provisions. -- Except as otherwise provided, in the
------------------------
event of breach of any of the terms or conditions of this Agreement, the
non-defaulting party may terminate this Agreement upon sixty (60) days
prior written notice to the defaulting party specifying with particularity
the breach. If the defaulting party shall, within such sixty (60) days,
cure the breach complained of and advise the non-defaulting party of such
cure, this Agreement shall continue in full force and effect as if the
notice of termination had not been issued; otherwise, this Agreement shall
terminate at the end of such sixty (60) day period.
14.1.5 Insolvency. -- In the event that the Customer becomes insolvent
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or voluntarily or involuntarily bankrupt or is unable to meet its
obligations when they become due or if a receiver or other liquidating
officer is appointed for substantially all of the assets or business of the
Customer or if the Customer makes an assignment for the benefit of
creditors, Millennium Dynamics, Inc. may immediately terminate this
Agreement by notice to the Customer.
14.1.6 Mutual Agreement. -- This Agreement may be terminated by the
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mutual agreement of the parties. The understanding of the parties must be
in writing and signed by both parties.
14.2 Effects of Termination. -- The following provisions shall apply in the
-----------------------
event this Agreement expires or is terminated for any reason whatsoever:
14.2.1 Return of Confidential Information. -- The Customer shall return
-----------------------------------
promptly or destroy all copies (in whatever form and whether full or
partial) of all Confidential Information which is in the Customer's
possession or under its control. Within thirty (30) days after termination,
the Customer shall provide written confirmation to Millennium Dynamics,
Inc. that all copies have been returned or have been destroyed. The
Customer shall also implement appropriate measures to safeguard the
confidentiality of any Confidential Information which, by virtue of its
intangibility, cannot be physically returned or destroyed.
14.2.2 Payments. -- The Customer shall remain obligated to pay all
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amounts already owed to Millennium Dynamics, Inc. hereunder. All amounts
due to Millennium Dynamics, Inc. hereunder shall become immediately due and
payable.
14.2.3 Provisions Which Survive. -- Millennium Dynamics, Inc.'s rights
-------------------------
and the Customer's obligations pursuant to Sections 6
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(Confidentiality) and 17 (Export) shall survive the termination and/or
expiration of this Agreement.
15. INDEMNIFICATION BY CUSTOMER.
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The Customer agrees to indemnify, defend, and hold harmless Millennium Dynamics,
Inc., its subsidiaries and affiliates, and the officers, directors, employees,
and agents of any of them from all costs, expenses (including reasonable
attorneys' fees), losses, liabilities, damages and settlements arising out of or
in connection with any claim or suit based on allegations which, if true, would
constitute a breach of this Agreement by the Customer.
15.1 Notice. -- Millennium Dynamics, Inc. shall as soon as practicable, notify
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the Customer in writing of any claim or suit which might give rise to a
claim for indemnification by the Customer hereunder.
15.2 Defense. -- In the event of such claim or suit, the Customer will employ
-------
counsel for the defense thereof, shall file proper pleadings in said suit
within the time required by law, and shall keep Millennium Dynamics, Inc.
informed of all developments. If the suit is brought to trial, the
Customer shall conduct the defense thereof. Millennium Dynamics, Inc., at
its own election and expense, shall always have the right to employ its own
counsel and may monitor the Customer's activities. In such event, the
Customer and Millennium Dynamics, Inc. shall cooperate fully.
16. ASSIGNMENT.
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This Agreement and the Customer's rights hereunder may not and cannot be
assigned, sublicensed, sold, mortgaged, pledged or otherwise transferred by the
Customer without Millennium Dynamics, Inc.'s prior written consent.
17. EXPORT.
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Regardless of any disclosure made by the Customer to Millennium Dynamics, Inc.
of an ultimate destination of any product, service, information or Confidential
Information provided in connection with this Agreement ("the Products"), the
Customer will not export or re-export, either directly or indirectly, any the
Products or any system incorporating the Products, without first obtaining an
appropriate license or authorization therefor from the United States government,
if required by United States law.
The Customer will not, without first obtaining an appropriate license or
authorization therefor from the United States government, if required by United
States law, directly or indirectly, export, re-export, transmit or disclose to
anyone or use, act upon, or
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provide services which involve the use of, any information of any kind
(including, without limitation, any Confidential Information) (a) which can be
used, or adopted for use, in the design, production, manufacturing, utilization
or reconstruction of articles or materials and (b) which was disclosed to the
Customer by Millennium Dynamics, Inc. or relates to any Products, this
Agreement, or any transaction hereunder. The Customer shall notify Millennium
Dynamics, Inc. if the Customer knows, believes or has any reason to suspect that
any of the Products are being or have been exported or re-exported without
proper licenses or authorizations.
18. ADVERTISING.
-----------
The Customer hereby authorizes Millennium Dynamics, Inc. to use the Customer's
name as a reference during verbal conversations concerning the Software. Any
other advertising involving the Customer's name will require the prior written
consent of the Customer. The Customer shall not use the name and/or logo of
Millennium Dynamics, Inc., without obtaining the prior written consent of
Millennium Dynamics, Inc.
19. INJUNCTIONS.
-----------
The Customer agrees that a breach of this Agreement, including without
limitation, any unauthorized use or disclosure of Confidential Information,
could cause Millennium Dynamics, Inc. irreparable damage, Millennium Dynamics,
Inc. is entitled to obtain injunctive relief in the event of any unauthorized
use or disclosure of Confidential Information.
20. ENTIRE AGREEMENT.
----------------
This Agreement (including the associated schedules, appendices, product
description manuals and addenda) constitute the entire agreement between
Millennium Dynamics, Inc. and the Customer relating to the subject matter hereof
and this Agreement supersedes all prior negotiations, agreements and
understandings between them relating to the subject matter hereof and no
modifications and/or additions to this Agreement shall be binding on either
party unless in writing and signed by the party against whom enforcement is
sought.
21. WAIVER.
------
No waiver of any provision of this Agreement shall be effective unless made in
writing. No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any subsequent breach of the same or any other provision
of this Agreement. Failure to enforce any contract term shall not be deemed a
waiver of future enforcement of that or any other term.
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22. NOTICE.
------
All notices permitted or required under this Agreement shall be directed to the
address set forth on the first page hereof or to such address as either party
may from time to time specify by written notice to the other. Any notice shall
be transmitted in one or more of the following ways:
22.1 In writing, delivered in person, effective upon delivery;
22.2 Mailed by first class, registered or certified mail, return receipt
requested, postage prepaid, effective 5 days after mailing;
22.3 Sent by telex or telecopy, or other digital telecommunications medium
providing a verifiable transcript, and original sent by first class mail,
postage prepaid, effective upon receipt.
22.4 Sent by overnight mail, billed to the sender, effective the next day.
23. FORCE MAJEURE.
-------------
Neither party shall be held liable to the other for failure to perform any of
its obligations hereunder where such performance is prevented or interfered with
by riots, wars or hostilities between any nations, Acts of God, fires, storms,
floods, earthquakes, strikes, labor disputes, shortages or curtailments of raw
materials, labor, power or other utility services, any government restrictions,
and other similar or dissimilar contingencies beyond the reasonable control of
the non-participating party.
24. GOVERNING LAW AND VENUE.
-----------------------
This Agreement shall be deemed to have been executed in Cincinnati, Ohio U.S.A.,
and shall be governed by and construed in accordance with the laws of the United
States and the laws of the State of Ohio, U.S.A. The Customer hereby consents
generally to the jurisdiction of the courts of the State of Ohio and of any
United States federal court.
25. SEVERABILITY.
------------
The provisions hereof are severable. If any provision of this Agreement is
invalid or unenforceable in any circumstances, then (i) in such circumstances
such provision shall be interpreted as though it provided for the maximum
permissible obligation or right, (ii) the application of such provision in any
other circumstances shall not be affected thereby, and (iii) the application of
the remaining provisions hereof shall not be affected thereby.
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26. CUMULATIVE REMEDIES.
-------------------
Except as otherwise provided herein, all rights and remedies conferred hereunder
shall be cumulative and may be exercised singularly or concurrently.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed and delivered by its duly authorized officers as of the day and year
first above written.
PROVIDENT BANK MILLENNIUM DYNAMICS, INC.
/s/ (Illegible) /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By: ______________________________________ By:____________________________
Name: _____________________________________ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
Title: ____________________________________ Title: Assistant Secretary
------------------------
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SOFTWARE SCHEDULE
-----------------
1. Software Programs.
-----------------
a. JCL/Proc Analyzer
b. COBOL Copy Library Converter
c. COBOL Program Converter
d. Assembler Program Converter
e. File and Transaction Converter
f. Universal Text Scanner
g. Bridge Utility
2. Site Address.
-------------
Provident Bank
-----------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
-----------------------
3. Designated CPU(s) at site.
-------------------------
IBM 3090, Model 40J
-----------------------
Serial #73244
-------------
4. License Fees.
------------
Initial License Fee $150,000
Total Cost $150,000
========
This License Fee includes the designated CPU(s) at the designated site.
Additional sites and CPU(s) will require an addendum to this Software
Schedule.
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5. Maintenance Fees.
----------------
The annual maintenance fee for the software products identified on this
Software Schedule is 10% of the then current License Fee for such software
products. The annual maintenance fee will be billed in advance for the
full year and is due thirty (30) days after receipt of an invoice from
Millennium Dynamics, Inc.
6. Education.
---------
The License Fee includes two (2) attendees from the designated site for a
two (2) day training session in Cincinnati, Ohio.
7. Manuals.
-------
The License Fee includes four (4) copies of installation/user manuals. The
Customer is not permitted to reproduce copies of the installation/user
manual, without the prior written permission of Millennium Dynamics, Inc.
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