KINGLAND SYSTEMS CORPORATION
MASTER SUBSCRIBER AGREEMENT
________________________________________________________________________________
This Master Subscriber Agreement covers the obligations of Kingland
Systems Corporation ("KSC") and the undersigned ("Subscriber") with respect to
the provision of certain products and services.
By signing below, each of us acknowledges that he or she has read and
understands this Agreement and the Attachments and other exhibits hereto, is
authorized to execute this Agreement on behalf of the party indicated below by
his or her name, and agrees on behalf of such party that such party will be
bound by the terms of this Agreement.
Agreed to: Agreed to:
Colonial Direct Financial Group Kingland Systems Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇. Suite 312 ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President ▇▇▇▇ ▇▇▇▇▇▇, CFO
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Name and Title Name and Title
Date: 4/18/2000 Date: 4/12/2000
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1. Definitions.
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As used in this Agreement the following terms shall have the
meanings specified in this Section:
"Accept" or "Acceptance" with respect to a product, including a KSC
Application, means, and shall be deemed to occur on, the earliest of (i)
Subscriber's placing the product in commercial use, (ii) Subscriber's notifying
KSC in writing of its acceptance of the product, or (iii) the expiration of the
Test Period without Subscriber's notifying KSC in writing of Subscriber's
rejection of the product. Subscriber agrees to notify KSC promptly of any
Acceptance which occurs under clause (i) of the preceding sentence.
"Acceptance Date" means, for any product, the date on which Acceptance
of that product occurs.
"Authorized Representative" means a person designated by Subscriber as
authorized to contact KSC to obtain services.
"Authorized User" means a person authorized by Subscriber to access a
KSC Application. Each person with such authority is considered an Authorized
User whether or not such person actually accesses a KSC Application.
"Business Day" means each day on which the New York Stock Exchange,
American Stock Exchange or Nasdaq Stock Market shall be open for execution of
transactions in the ordinary course of business.
"Correction" means a modification to the program code of a KSC
Application to resolve an Error or Problem.
"Error" means an instance of failure of a KSC Application to be
operative due to a defect in such KSC Application. An Error is a Priority 1
Error if it renders continued use of all KSC Applications as a whole impossible,
including without limitation trade order entry and execution, establishing new
accounts and account balance retrieval. An Error is a Priority 2 Error if it
makes continued use of all KSC Applications as a whole seriously inconvenient
and substantially reduces their value to Subscriber. All other Errors are
Priority 3 Errors; in particular, all documentation shortcomings and deviations
that do not have the economic consequences defined for Priority 1 and 2 Errors
shall be deemed Priority 3 Errors.
"Implementation Plan" means, the implementation plan agreed to by KSC
and Subscriber with respect to the timing of the installation or usage of a
product, product testing, target production dates and related matters.
"Initial Applications" means the KSC Applications that are designated
as such in Attachment 1 as of the date of this Agreement.
"Initial Term" means a period of thirty-six months, beginning on the
Acceptance Date.
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"Installation Date" means, for any product, the date on which that
product is available to Subscriber for testing and/or commercial use.
"Known Problem Data Base" means the database maintained by KSC of known
Problems with KSC Applications.
"KSC" means Kingland Systems Corporation and its successors and
assigns.
"KSC Applications" means FNS/Server. FNS/BackOffice and all other KSC
applications for which Subscriber is an Authorized User under this Agreement.
"Licensed Software" means the machine readable object code version of
(a) any KSC software, applet or other program that is downloaded by Subscriber
or a user of KSC Application through Subscriber's system, and (b) any other
software program as to which KSC and Subscriber agree to a license pursuant to
this Agreement, in either case together with any user manuals, on-line help
features and other similar materials provided by KSC for such program.
"Maintenance" means the diagnosis of conditions reported to KSC as
Errors or Problems and the development from time to time, as appropriate, of
Corrections, Workarounds and Updates.
"Problem" means a failure of a KSC Application to operate substantially
according to the applicable user manual for any reason, whether or not the
reason constitutes an Error.
"Subscriber" means the party executing this Agreement as Subscriber and
the wholly owned subsidiaries of that party, and their successors and assigns.
"Subscriber Data" means all data supplied by Subscriber residing in the
databases accessed by the KSC Applications.
"Subsequent Application" means a KSC Application other than the Initial
Applications.
"Subsequent Term" means a twelve-month period following the expiration
of the Initial Term or the immediately preceding Subsequent Term, as the case
may be.
"Support" means provision of information and assistance concerning the
use of KSC Applications.
"Term" means the Initial Term or a Subsequent Term, as applicable under
the circumstances.
"Test Period" means, for any product under this Agreement, a period of
thirty (30) calendar days following the Installation Date of that product, or
such other period as specified in the Attachment relating to that product.
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"Update" means revised or additional program code that KSC implements
to correct known Errors or Problems in a KSC Application and/or to improve
performance of a KSC Application, and which is designated as an Update by KSC.
"Workaround" means a method of dealing with an Error or Problem, or
suspected Error or Problem which is not a Correction but which permits KSC
Applications to operate substantially in accordance with the user manual.
2. Provision of Products and Services.
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KSC will make available to Subscriber the products, including KSC
Applications, and services designated in the Attachments to this Agreement. All
products will be in such forms and with such functionalities as they may exist
from time to time. Unless otherwise specified in an Attachment, all products
will reside on KSC's computer system. Unless otherwise specified in the
applicable Attachment, all products under this Agreement are provided for use
only with respect to data concerning Subscriber and its direct and indirect
customers and not for operation as a "service bureau" by Subscriber.
3. Pricing
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(a) The pricing for each product or service under the Agreement is set
forth in the Attachment relating thereto. All fees and other charges for a month
shall be paid not later than the fifteenth (15th) day of the following month.
All other charges shall be due thirty (30) days following the date of KSC's
invoice, or as specified in the applicable Attachment. Any amount not paid when
due is subject to a late charge equal to one percent (1%) of the amount of such
payment per month (or, if less, the maximum amount permitted by law). Monthly
usage fees and charges for each succeeding Term will be specified in a notice to
be provided to Subscriber by KSC not later than ninety (90) days prior to the
beginning of such Term.
(b) In exchange for the pricing described in paragraph (a), Subscriber
agrees to use not more than the levels of resources set forth in Attachment 1
for all products covered by this Agreement. In the event that the resources to
be used by Subscriber exceed the levels specified in Attachment 1, Subscriber
agrees to pay for such additional usage according to the schedule set forth in
Attachment 1. KSC will make reasonable efforts to notify Subscriber in the event
that Subscriber's usage levels are approaching the levels specified in
Attachment 1.
4. Implementation Plan.
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The Implementation Plan for each product or service under this
Agreement is specified in the Attachment relating to that product or service.
The parties will adhere to the Implementation Plan with respect to acquisition,
installation, database population, training, testing and other functions set
forth in the Implementation Plan. Each party will designate a Project Leader
pursuant to the Implementation Plan. The Project Leader will be the contact
person for each party during the implementation process and shall have authority
to bind that party with respect to the performance or modification of the
Implementation Plan.
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5. Other Goods and Services.
------------------------
Subscriber is responsible for providing and maintaining all equipment,
hardware, software, communications equipment and services, and other goods or
services necessary for the use of the products and services to be provided by
KSC under this Agreement, except as specifically stated in the Attachment
relating to such product or service. For KSC Applications, Subscriber shall,
prior to installation, submit its configuration of equipment, networks,
interfaces to third parties and other elements to KSC for approval, which shall
not be unreasonably withheld. Subscriber will access the KSC Applications only
through such approved equipment, networks, interfaces and other elements.
Subscriber shall be solely responsible for the procurement and performance of
such equipment, networks, interfaces and elements. In the event changes in the
KSC Applications require changes in Subscriber's equipment, networks, interfaces
or other elements, Subscriber will promptly make such changes at its expense.
6. Testing and Acceptance.
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(a) Subscriber may use each KSC Application on a test basis during the
applicable Test Period to determine whether the KSC Application is in
Subscriber's sole judgment suitable for use in Subscriber's business. On or
before the last day of such Test Period, Subscriber shall Accept or reject the
KSC Application. Testing and acceptance procedures for products and services
other than KSC Applications shall be specified in the applicable Attachment.
(b) KSC will provide Support for a KSC Application during the
applicable Test Period as provided in Section 8(b) from 8:00 a.m. to 5:00 p.m.
Central time on each Business Day as specified in the applicable Implementation
Plan.
(c) Subscriber agrees to provide KSC with reports of any Error or
Problem occurring during a Test Period, in sufficient detail to permit KSC to
analyze the Error or Problem and seek to provide a Correction. For the purpose
of analyzing such Error or Problem and attempting to develop Corrections,
Subscriber agrees to provide KSC with such information relating to the Error or
Problem as KSC may reasonably request.
(d) In the event Subscriber notifies KSC prior to the expiration of the
Test Period for a KSC Application that such KSC Application is rejected, KSC
will use reasonable efforts to correct the Error or Problem. If a covered Error
or Problem is not corrected to Subscriber's satisfaction within thirty (30)
calendar days following notice under this paragraph, Subscriber may discontinue
use of the KSC Application and comply with Section 17(c), and shall then be
entitled to a refund of the Monthly Fee for such KSC Application specified in
Attachment 1 with respect to the applicable Test Period actually been paid by
Subscriber to KSC under this Agreement for the rejected KSC Application. THE
PROVISIONS OF THIS PARAGRAPH SHALL BE SUBSCRIBER'S EXCLUSIVE REMEDY FOR ANY
REJECTION OF ANY KSC APPLICATION, OR FOR ANY FAILURE OF A KSC APPLICATION TO
OPERATE IN ANTY PARTICULAR MANNER DURING THE TEST PERIOD.
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7. Service Bureau Availability; Product Warranty.
---------------------------------------------
(a) KSC warrants that, following the Acceptance Date, the KSC
Applications will be available to Subscriber at least 99.5% of the time during
each calendar month, calculated on the basis of seven days per week and
twenty-four hours per day, but excluding (a) scheduled periods of unavailability
for maintenance, upgrades or other operational considerations, (b)
unavailability not due to KSC's systems, such as failures of communications
networks, of servers or interfaces for products of, or data or other inputs
from, vendors other than KSC or of computer systems of Subscriber, its customers
or other third parties, (c) unavailability due to failure to use the KSC
Applications in accordance with the user manuals provided by KSC, and (d)
unavailability of functions or applications that do not preclude use of the
material functionalities of the KSC Applications taken as a whole. KSC will
provide Subscriber with at least eight (8) hours notice of scheduled periods of
unavailability under clause (a), and such scheduled unavailability shall not
occur between 8:00 a.m. to 5:00 p.m. Central time on a Business Day. In the
event availability is less than provided in the first sentence of this
paragraph, Subscriber shall be entitled to a credit of 100% of the Monthly Fee
for the KSC Applications (as specified in Attachment 1) for the immediately
following calendar month.
(b) The warranty for any products other than KSC Applications and any
services provided under this Agreement shall be set forth in the Attachment
relating to such products or services.
(c) No instance of alleged non-compliance with any warranty provided by
this Section will be deemed to be a breach of this warranty unless it is
reported to KSC's service center within one (1) hour following its occurrence.
Any alleged deficiency in any KSC Application (including the related
documentation) shall be included in the warranty set forth in this Section and
shall be subject to the procedures and exclusive remedies provided in this
Section. Upon receipt of any notice under this paragraph with respect to an
Error or Problem with any KSC Application covered by the warranty contained in
this Section, KSC will use reasonable efforts, at KSC's expense, to correct the
Error or Problem.
(d) THE CREDIT PROVIDED IN PARAGRAPH (A) AND THE REMEDIES SET FORTH IN
ANY ATTACHMENT DESCRIBED IN PARAGRAPH (B) SHALL BE SUBSCRIBER'S EXCLUSIVE
REMEDIES FOR ANY BREACH OF A WARRANTY SET FORTH IN THIS SECTION OR ANY
OTHER EXPRESS OR IMPLIED WARRANTY DETERMINED TO EXIST, ANY FAILURE OF ANY
PRODUCT OR SERVICE TO OPERATE IN ANY PARTICULAR MANNER, OR ANY ACT OR OMISSION
OF KSC OR ANY PERSON ACTING ON ITS BEHALF. THE WARRANTIES CONTAINED IN THIS
SECTION REPLACE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. KSC HEREBY
DISCLAIMS ANY SUCH OTHER WARRANTIES WITH RESPECT TO THE KSC APPLICATIONS OR ANY
OTHER PRODUCTS OR SERVICES PROVIDED BY KSC.
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8. Maintenance and Support of KSC Applications.
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(a) Subscriber will maintain a service center to handle all questions
or reports of possible Errors or Problems with KSC Applications received from
Subscriber's personnel, customers or other Authorized Users of KSC Applications.
Subscriber's personnel (other than Authorized Representatives), customers or
other Authorized Users will contact such service center and will not contact KSC
directly. Subscriber will designate not more than two Authorized Representatives
for each work shift to contact KSC, and Subscriber shall notify KSC of the names
of such Authorized Representatives. Only such Authorized Representatives, or any
replacements designated by Subscriber in writing, may contact KSC for
maintenance services or Support under this Agreement.
(b) KSC will maintain a service center to handle requests from the
Authorized Representatives for maintenance or Support for the KSC Applications.
KSC's service center may be contacted by telephone or, at KSC's option, Internet
or other generally available means of access. KSC will provide Subscriber with
the telephone number, Internet address or other contact information for the
service center, as in effect from time to time. Following Acceptance of the
first KSC Application, Subscriber shall be entitled to eight (8) hours per month
of Support for all KSC Applications, through the procedures established in this
Section, at no additional charge. Additional Support by KSC shall be at KSC's
standard rates in effect from time to time.
(c) Following a report to KSC pursuant to Section 8(b) of an Error or
Problem with a KSC Application, KSC agrees to use reasonable efforts to develop
a Correction, Workaround or other modification for any Error or Problem relating
to the KSC Application, as provided in Sections 9 and 10. Subscriber agrees to
provide KSC with reports of any Error or Problem, in reasonably sufficient
detail to permit KSC to analyze the Error or Problem and seek to provide a
Correction. For the purpose of analyzing such Error or Problem and attempting to
develop Corrections, Subscriber agrees to provide KSC with such information
relating to the Error or Problem as KSC may reasonably request and to provide
KSC's personnel with access, at reasonable times and subject to Subscriber's
standard security procedures, to any applicable hardware, software,
communication system or the like. Subscriber will promptly implement any
Workarounds developed by KSC, in accordance with the instructions provided by
KSC.
(d) Maintenance and Support for any products other than KSC
Applications provided under this Agreement shall be set forth in the Attachment
relating to such products.
(e) In the event this Agreement is terminated pursuant to Section 17(b)
due to a breach by KSC of its obligations under this Section and Subscriber
complies with the requirements of Section 17(c), KSC will refund to Subscriber
the Monthly Fee for the affected KSC Application (as specified in Attachment 1)
actually paid by Subscriber under Section 3 of this Agreement for the most
recent three (3) months, or the fees specified in the applicable Attachment for
a product other than a KSC Application. THE PROVISIONS OF THIS PARAGRAPH SHALL
BE SUBSCRIBER'S EXCLUSIVE REMEDY FOR ANY BREACH OF KSC'S OBLIGATIONS UNDER THIS
SECTION OR ANY OTHER EXPRESS OR IMPLIED OBLIGATION OR WARRANTY DETERMINED TO
EXIST, ANY FAILURE OF ANY KSC APPLICATION OR OTHER PRODUCT TO OPERATE IN ANY
PARTICULAR MANNER, OR ANY ACT OR OMISSION OF KSC OR ANY PERSON ACTING ON ITS
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BEHALF. THE WARRANTIES CONTAINED IN THIS SECTION REPLACE ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. KSC HEREBY DISCLAIMS ANY SUCH OTHER WARRANTIES
WITH RESPECT TO THE KSC APPLICATIONS OR ANY OTHER PRODUCTS PROVIDED BY KSC.
9. Provision of Maintenance.
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(a) Level 1 Maintenance: Upon receiving the initial contact from an
Authorized Representative concerning a suspected Error, KSC shall provide at no
charge to Subscriber the following, Level 1 Maintenance, to the extent
commercially feasible:
(i) Perform searches of the Known Problem Data Base and forward the
results of such search to Subscriber;
(ii) Provide to Subscriber promptly any Correction or Workaround to
the reported Error found in the Known Problem Data Base;
(iii) Gather additional information concerning the reported Error,
enter the reported Error into the Known Problem Data Base and other
appropriate records, and forward the Error to Level 2 Maintenance for
further analysis if no solution is found in the Known Problem Data
Base; and
(iv) Inform Subscriber of the status of the Error and, if
applicable, the referral of the Error to ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇.
(▇) ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇: If Level 1 Maintenance does not provide a
reasonable Correction or Workaround for an Error, KSC shall provide at no charge
to Subscriber the following Level 2 Maintenance, to the extent commercially
feasible:
(i) Receive information concerning the Error from ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇;
(▇▇) Review the Known Problem Data Base and other Error
documentation information;
(iii) Perform additional file searches and provide Problem
determination assistance in conjunction with Subscriber's personnel to
verify the reported Error as a valid Error not previously encountered.
Such Problem determination assistance may include establishing traps
and traces, suggesting Workarounds and requesting additional
information and documentation from Subscriber;
(iv) Update the Known Problem Data Base;
(v) Submit the reported Error to appropriate maintenance personnel,
along with required supporting documentation, if any, obtained by KSC
from Subscriber, to attempt to develop a Correction or Workaround. At
KSC's option, KSC may instruct
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Subscriber to provide such supporting documentation for Priority 1
Errors directly to specified maintenance personnel or subcontractors;
(vi) Implement a Correction or deliver to Subscriber a Workaround
developed by KSC concerning the reported Error;
(vi) Follow up with Subscriber after a Correction is implemented or
a Workaround is delivered to assure Problem resolution; and
(viii) If applicable, inform Subscriber that the reported Error is
not a valid Error and, if requested, provide Subscriber with
documentation of such finding.
(c) Level 3 Maintenance: If a Correction is implemented or a Workaround
is delivered to Subscriber that results in a substantial degradation of the
operation of the KSC Applications, or if otherwise agreed by KSC and Subscriber,
KSC shall provide at no charge to Subscriber Level 3 Maintenance as described in
this paragraph, to the extent commercially feasible. Level 3 Maintenance shall
consist of conducting further analysis to the extent commercially feasible, in
order to attempt to provide further Corrections to eliminate such degradation to
the extent reasonably possible.
10. Maintenance Response Times.
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(a) After an Authorized Representative reports a suspected Error, KSC
will determine the Priority level of the Error (as such Priority levels are
defined under the definition of "Error" in this Agreement) in consultation with
Subscriber. If KSC has not diagnosed and implemented a Correction or provided a
Workaround for a Priority 1 or Priority 2 Error within 24 hours following
Subscriber's initial telephone call, Subscriber shall submit to KSC a listing of
output or such other data as KSC reasonably requests in order to reproduce the
operating conditions present when Subscriber experienced the reported Error.
(b) For Priority 1 Errors, KSC shall make reasonable efforts to
implement or supply a reasonable Correction or Workaround within twenty-four
hours after Subscriber reports the Error. These steps will include assigning a
qualified technician to work with Subscriber's personnel at no charge without
interruption (i.e., 24 hours per day), so long as Subscriber also has qualified
personnel available to assist KSC's personnel in resolving the suspected Error,
until KSC implements a reasonable Correction or provides a reasonable Workaround
or the parties determine that a Correction or Workaround cannot be produced by
such technicians.
(c) For Priority 2 Errors, KSC shall take reasonable steps to implement
or supply a reasonable Correction or Workaround within five (5) days after
receipt of output or other documentation of the Error. These steps shall include
assigning qualified technicians to work with Subscriber's personnel from 8:00
a.m. to 5:00 p.m. Central time on each Business Day at no charge until KSC
implements a reasonable Correction or provides a reasonable Workaround or the
parties determine that a Correction or Workaround cannot be produced by such
technicians.
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(d) For Priority 3 Errors, KSC shall make reasonable efforts to provide
a Correction at no charge as a part of a future Update of the KSC Application.
11. Data and Security.
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(a) Except as expressly provided in the applicable Implementation Plan,
Subscriber will have full responsibility for all database population and
updating, data input, report generation and other matters relating to the input
and output of data to or by the products covered by this Agreement.
(b) Subscriber shall be the owner of all Subscriber Data, although KSC
is the sole owner of the KSC Applications and all database information provided
by KSC. KSC agrees to use reasonable measures designed to maintain the
confidentiality of Subscriber Data, except disclosure pursuant to valid judicial
or administrative process from a court or agency with jurisdiction over KSC,
Subscriber or such data or as otherwise required by law.
(c) Subscriber shall be solely responsible for administration of
security procedures with respect to access to the Subscriber Data by
Subscriber's employees, customers and other persons accessing information
through Subscriber's systems, including administration of both user
identification systems and menu feature authorization for each user. KSC shall
maintain reasonable security procedures designed to limit access to KSC's
computer systems only to authorized personnel or other persons executing valid
user identification procedures through Subscriber's computer systems.
(d) KSC will maintain and utilize certain security systems designed to
prevent unauthorized Internet access to KSC's computer systems. These security
systems will at a minimum provide for user authentication (requiring the user to
provide an ID and password for customer transaction and account information
authority) and browser-based and KSC hardware or software based Secure Socket
Layer ("SSL") encryption, utilizing at least a 40-bit length public key
encryption technology. KSC will maintain and utilize, and upgrade as necessary,
its security systems to meet prevailing industry standards.
(e) Subscriber and KSC each agree that all information exchanged under
this Agreement (other than products, services and related documentation) is
non-confidential unless specifically covered by a confidentiality agreement
signed by the parties. The Subscriber agrees that KSC Applications and related
documentation are the confidential and proprietary information of KSC and that
Subscriber will not use or disclose KSC Applications or related documentation
except as permitted by this Agreement.
(f) KSC shall perform a backup of Subscriber Data (and such other
information as KSC may determine) for each Business Day and shall store such
backup tape or other media in a location separate from KSC's operations centers.
In addition, KSC will simultaneously operate a backup data center at a separate
location from KSC's main data center, with the ability to have the backup data
center operate the KSC Applications if the main data center fails, including
separate hardware and software and separate power supplies, backup generators
and other similar equipment and services.
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12. Licensed Software.
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(a) Subject to the terms and conditions of this Agreement, KSC hereby
grants to Subscriber and Subscriber's Authorized Users, and Subscriber hereby
accepts, a non-exclusive license during the term of this Agreement to use any
Licensed Software in the manner provided in this Agreement. Any Licensed
Software within the meaning of clause (a) of the definition of that term may be
used only for the purpose of operating the KSC Application to which the
Licensed Software relates. Any Licensed Software within the meaning of clause
(b) of the definition of Licensed Software shall be used only by such persons,
for such purpose and in such manner as provided in the Attachment relating to
such Licensed Software. Nothing in this Agreement shall be deemed to give
Subscriber any ownership interest, security interest or other proprietary
interest in the Licensed Software or any patent, trademark, copyright, trade
secret or other proprietary information relating to the Licensed Software.
(b) Subscriber agrees that it will not (and will not permit others to),
and will not attempt to, copy any Licensed Software provided under this
Agreement, except as expressly permitted in the Attachment relating to that
Licensed Software, assign or transfer the license for Licensed Software;
distribute Licensed Software to any third party; reverse assemble, reverse
compile or otherwise translate Licensed Software; create any derivative work of
Licensed Software (within the meaning of United States copyright laws); or
remove any copyright, ownership, confidentiality or other notices or legends in
Licensed Software. Subscriber further agrees that it will allow access to
Licensed Software only to persons authorized to use such Software under this
Agreement and will use commercially reasonable efforts to ensure that anyone who
uses Licensed Software (accessed locally or remotely) does so only for
Subscriber's authorized use and in compliance with the terms of this Agreement.
Subscriber will immediately notify KSC of any actual or attempted commission of
any act prohibited by this paragraph.
13. Provision of Services.
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KSC agrees to provide the services described in an Attachment hereto on
the terms and conditions, and with the pricing, described in such Attachment.
14. Settlement of Transactions.
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(a) Subscriber acknowledges and agrees that KSC is not a broker, dealer
or securities exchange and that KSC is only providing Subscriber and its
Authorized Users with electronic means for transmitting orders to buy or sell
securities and related information to, and receiving information with regard to
such orders from, securities exchanges and other persons designated by
Subscriber pursuant to the Attachments, and for allowing authorized persons to
view certain information with respect to such transactions. Subscriber agrees
that KSC has no obligation or responsibility with regard to the validity,
legality, execution or settlement (including payment) of any securities
transaction transmitted through any KSC Application or any other product or
service and that KSC has no obligation to review or refuse any order transmitted
through any KSC Application or any other product or service.
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(b) Subscriber agrees that it is Subscriber's absolute, unconditional
and unassignable obligation, in connection with each transaction executed
through any KSC Application or any other product or service by Subscriber or any
person acting through or on behalf of Subscriber, to (a) comply with all
applicable laws, rules and other legal requirements in connection with all
transactions processed through such KSC Application or other product or
service and to provide with each securities transaction order all information
required with respect to that order by applicable laws, rules and other legal
requirements, and (b) make and ensure timely delivery of the subject securities
and/or funds as well as any required remittance of interest, dividend payments
and/or other distributions.
15. Intellectual Property Matters.
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(a) KSC represents that, to the best of its knowledge as of the date of
its execution of the applicable Attachment, the use of KSC Applications or other
products covered by this Agreement by Subscriber as authorized by this Agreement
will not infringe any valid and existing United States patent, copyright or
trademark owned by any person other than KSC. KSC makes no representation as to
infringement with respect to any product after any combination, operation or use
of such product with any product, data or apparatus not approved by KSC;
infringement caused by any modification of any product by a person other than
KSC or its employees, agents or authorized representatives; or infringement
caused by a product produced by a party other than KSC.
(b) If a third party claims that any product infringes a valid United
States patent, copyright or trademark (except for any claims excluded under the
second sentence of paragraph (b)), KSC agrees to defend and hold harmless
Subscriber against that claim at KSC's expense and to pay all costs, damages and
attorney fees that a court finally awards or KSC agrees to pay as part of a
settlement or resolution, provided that Subscriber: (i) promptly notifies KSC in
writing of such claim, (ii) allows KSC to control the defense of such claim and
any related settlement negotiations, and (iii) cooperates with KSC in any such
defense or settlement negotiations. If such a claim is made or, in KSC's
judgment, appears likely to be made, Subscriber agrees to permit KSC to acquire
a license that wil1 enable Subscriber at no added cost to Subscriber to continue
to use the affected product, or to modify or replace the affected product, at
KSC's expense and option. In the event KSC determines that none of these
alternatives is reasonably available, Subscriber agrees that KSC may terminate
this Agreement as to the affected product, or in its entirety. KSC will then
give Subscriber a credit equal to all fees paid for the affected product (or, in
the case of a complete termination of this Agreement, all license fees) for the
most recent three (3) months. THE REMEDIES SET FORTH IN THIS PARAGRAPH SHALL BE
SUBSCRIBER'S EXCLUSIVE REMEDIES FOR ANY ACTUAL OR ALLEGED INFRINGEMENT BY ANY
KSC APPLICATION OR BY ITS USE BY SUBSCRIBER OR A PERSON ACTING THROUGH OR ON
BEHALF OF SUBSCRIBER, OR ANY CLAIM UNDER PARAGRAPH 14(a), WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE.
(c) Subscriber and KSC each agrees that it will not use the other's
trademark, trade name or other designation, without the other's prior written
consent.
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16. Limitation of Liability; Indemnification.
----------------------------------------
(a) KSC shall have no responsibility or liability for the accuracy or
completeness of any Subscriber Data or for any use of Subscriber Data by any
person other than KSC. Subscriber agrees to indemnify and hold harmless KSC from
and against any liability to any person due to any actual or alleged inaccuracy
or incompleteness or other problem with any Subscriber Data or the use of any
Subscriber Data by any person other than KSC.
(b) Neither KSC nor its officers, directors, agents, employees or
affiliates will be liable to Subscriber or any other person for any loss of
profits, loss of use, or for any other damages suffered or costs and expenses
incurred by Subscriber, any customer or account of Subscriber or any third
party, of any nature or from any cause whatsoever, whether direct, special,
incidental, consequential, or the like, arising out of or related to: (i) this
Agreement; (ii) use by any such person or account of any product or service
provided under this Agreement; (iii) KSC's failure or refusal to accept,
display, execute, clear and/or settle any transaction entered or executed or
attempted to be entered or executed by Subscriber or any other person; (iv) the
installation, furnishing, performance, maintenance, or use of (or inability to
use) any computer hardware, software, peripherals, cabling, network services,
databases, manuals or any other materials or services other than KSC
Applications (whether or not provided or arranged by KSC); (v) any act or
omission of any securities exchange, market or any other person designated by
Subscriber pursuant to an Attachment to process orders for Subscriber; (vi) any
loss of or damage to Subscriber Data; and (vii) losses caused by any non-KSC
product or service (for which items Subscriber's exclusive remedy is from the
manufacturer or supplier of such product or service). Under no circumstances
shall KSC be liable for exemplary or punitive damages. Neither party will bring
an action against the other more than one (1) year after the cause of action
arose.
(c) Notwithstanding any other provision of this Agreement, and without
creating any obligation for KSC to do so, KSC reserves the right, in its sole
discretion, and without prior notice to Subscriber, to reject, cancel or refuse
to enter, display, execute and/or clear and settle any transaction, the
acceptance, display, execution or settlement and clearance of which would, in
KSC's sole determination, violate any applicable law, rule or regulation,
including any applicable rule or regulation of any exchange or other
self-regulatory organization having jurisdiction or authority.
(d) Subscriber agrees to indemnify and hold harmless and, at
Subscriber's expense, to defend KSC, its officers, directors, employees, agents,
affiliates, controlling persons (within the meaning of applicable securities
laws), successors and assigns ("Indemnified Parties") from and against any cost,
expense, liability, claim, loss or damage, direct, consequential, incidental
and/or punitive in nature (including legal fees and other expenses) to which any
such Indemnified Party may become subject, insofar as such cost, expense,
liability, claim, loss or damage arises out of, in connection with, or relates
to any breach by Subscriber of any of the terms of this Agreement, any claim by
Subscriber or any third party for which KSC is not liable under paragraphs (a)
or (b) hereof or any misuse of a product provided hereunder or malicious conduct
by Subscriber or any person using a product by or through Subscriber; provided,
however, that KSC must promptly notify Subscriber in writing of any such claim,
action or proceeding, unless to do so
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would cause KSC to violate any applicable law, rule, regulation or order (but
the failure to so notify Subscriber shall not relieve Subscriber of any
liability hereunder except to the extent Subscriber has been materially
prejudiced therefrom). Subscriber may elect, by written notice to KSC within ten
(10) days after receiving notice of such claim, action or proceeding from KSC,
to assume the defense thereof with counsel reasonably acceptable to KSC. If
Subscriber does not so elect to assume such defense or disputes its indemnity
obligation with respect to such claim, action or proceeding, or if KSC
reasonably believes that there are conflicts of interest between KSC and
Subscriber or that additional defenses are available to KSC with respect to such
defense, then KSC may retain its own counsel to defend such claim, action or
proceeding, at Subscriber's expense. Subscriber shall reimburse KSC for its
expenses under this Section 16 as they are incurred. KSC shall have the right,
at its own expense, to participate in the defense of any, claim, action or
proceeding against which it is indemnified hereunder. Subscriber, in the defense
of any such claim, action or proceeding, except with the written consent of KSC,
shall not consent to entry of any judgment or enter into any settlement which:
(i) does not include, as an unconditional term, the grant by the claimant to KSC
of a release of all liabilities in respect of such claim, action or proceeding;
or (ii) otherwise adversely affects the nights of KSC.
(e) In the event for any reason Subscriber is entitled to recover
damages from KSC, Subscriber agrees that KSC shall be liable only for (i)
refunds of fees as provided in Section 6(d), if applicable, (ii) refunds or
credits pursuant to Section 7(d), if applicable, (iii) refunds of fees pursuant
to Section 8(e), if applicable, and (iv) if not covered by Sections 6, 7 or 8,
actual damages otherwise incurred up to a maximum of the fees (as specified in
the applicable Attachment) actually paid by Subscriber under Section 3 for the
preceding three (3) months with respect to the product or service to which the
claim relates.
(f) The parties acknowledge that the foregoing provisions were
negotiated to reflect an informed, voluntary allocation among them of all risks
(both known and unknown) associated with the transactions pursuant to this
Agreement. The warranty disclaimers and limitations of liability contained in
this Agreement are intended to limit the circumstances of liability, and the
remedy limitations contained in this Agreement are separately intended to limit
the forms of relief available to the parties.
17. Termination of Agreement.
------------------------
(a) This Agreement shall continue in effect for the Initial Term and
for successive Subsequent Terms thereafter unless (i) earlier terminated
pursuant to Sections 17(b) or (ii) one party notifies the others of the
termination of the Agreement as of the end of the then-current Term of the
Agreement at least sixty (60) days prior to the end of the then-current Term.
(b) Any rejection of the Initial Applications under Section 6 or refund
of fees for the Initial Applications under Section 8 shall automatically
terminate this Agreement in its entirety. Any rejection of a Subsequent
Application under Section 6 or refund of fees for a Subsequent Application
under Section 8 shall automatically terminate this Agreement as to the affected
Subsequent Application. In addition, Subscriber or KSC may terminate this
Agreement as a result of non-compliance with the Agreement by the other party,
by providing the other party with written notice specifying in reasonable detail
any claims non-compliance. The notifying
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party shall provide the other party at least ten (10) days (with the period to
be specified in such notice) in which to cure the alleged non-compliance. If the
other party Cures the non-compliance within such period, the Agreement shall
continue as if such non-compliance had not occurred. The parties agree that the
procedures described in Sections 6, 7 and 8 are the exclusive remedies for an
alleged non-compliance with those Sections.
(c) Subscriber shall discontinue use of the affected KSC Applications
and Licensed Software immediately upon termination of this Agreement. Within
fifteen (15) days following a termination of this Agreement, Subscriber shall
return to KSC all copies of any affected Licensed Software and all documentation
relating to the affected KSC Applications and Licensed Software, and any other
confidential information of KSC relating to affected KSC Applications and
Licensed Software, in the possession Of Subscriber or any other person obtaining
possession through Subscriber, together with a certificate signed by an
authorized officer of Subscriber stating, that all such items have been
returned.
(d) Upon any termination of this Agreement, including terminations
pursuant to Sections 6, 7 and 8, KSC shall be entitled to retain all Subscriber
Data in its possession until KSC has received payment of all amounts owed to it
under this Agreement and Subscriber has complied with its obligations under
Section 17(c). Following such payment and compliance by Subscriber, KSC shall
promptly provide the Subscriber Data to Subscriber in such form and format, and
on such media, as agreed by Subscriber and KSC.
(e) The provisions of Sections 6(d), 7(d), 8(e), 11(e), 12(b), 15(b),
16, 17(c), 17(d) and 18 shall survive the termination of this Agreement.
18. Miscellaneous.
-------------
(a) Except to an affiliate or subsidiary, Subscriber may not assign any
right under this Agreement, and any assignment shall be void and a breach of
this Agreement. This Agreement will be binding upon and inure to the benefit of
the parties and their successors and assigns.
(b) No modification or waiver of any provision of this Agreement, nor
any consent to any non-compliance with any provision hereof, shall be effective
unless the same shall be in writing and signed by an authorized representative
of such party, and then only in the specific instance and for the purpose for
which given. No notice or demand on a party in any case shall entitle such party
to any other or further notice or demand in similar circumstances unless
expressly required by this Agreement.
(c) If any one or more provisions of this Agreement or in any other
documents contemplated herein shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
herein and therein shall not be affected or impaired thereby.
(d) The headings of the Sections of this Agreement are for convenience
only and shall not be deemed to constitute a part of this Agreement.
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(e) Any notice under this Agreement shall be given by personal
delivery, telecopier, overnight courier service or certified mail, return
receipt requested, to the parties at their respective addresses shown on the
first page of this Agreement. If such notice is sent to KSC, it shall be sent to
the attention of the President. If such notice is sent to Subscriber, it shall
be sent to the attention of the person signing this Agreement on behalf of
Subscriber. Notice shall be deemed to have been given on the earlier of the date
of its receipt or three (3) Business Days after mailing. A party may change its
address for notice or the person designated to receive such notice by giving
notice of such chan-e as provided in this paragraph.
(f) This Agreement shall be governed by the internal laws of the State
of New York. The parties acknowledge the relationship of this Agreement and the
license of KSC Applications to the State of New York because of the use of KSC
Applications in Subscriber's securities business, which is closely connected
with the State of New York, and because of the use of KSC Applications in
executing securities transactions through major securities exchanges, which are
located in the State of New York.
(g) Subscriber agrees to reimburse KSC for its actual expenses in
performing its obligations under this Agreement, including travel; lodging;
meals; third-party vendor services; and other items. KSC will provide Subscriber
with monthly invoices for such expenses, together with any documentation of such
expenses reasonably requested by Subscriber. Subscriber agrees to pay each such
invoice within thirty (30) days following the date thereof.
(h) Each of the parties acknowledge that any violation by them of the
covenants set forth in this Agreement relating to intellectual property rights
or confidentiality would result in damage to the other party that may be in part
intangible but nonetheless real, and that may not be fully capable of redress by
an award of damages. Accordingly, any such violation shall give KSC or the
Subscriber, as the case may be, the right to a court-ordered injunction or other
appropriate order to specifically enforce those covenants.
(i) Each party has had the opportunity to be represented by counsel of
its choice in negotiating this Agreement. This Agreement shall therefore be
deemed to have been negotiated and prepared at the joint request and direction
of the parties, with the advice and participation of counsel, and will be
interpreted according to its terms without favor to any party.
(j) This Agreement may be executed in separate counterparts, each of
which shall constitute an original, but all of which shall constitute one
instrument. Any reproduction of this Agreement by reliable means (e.g.,
photocopy or facsimile) shall be considered an original.
(k) This Agreement and the Attachments and exhibits thereto, together
with all Implementation Plans, constitute the entire agreement among the parties
concerning the subject matter thereof. No prior or contemporaneous
representations, inducements, promises or agreements, oral or otherwise, among
the parties with respect thereto will be of any force or effect.
-16-
Attachment 1 to Master Subscriber Agreement
Between ▇▇▇▇▇▇▇▇ Systems Corporation ("KSC")
and Colonial Direct Financial Group ("Subscriber")
The date of this Attachment is April 12, 2000
________________________________________________________________________________
1. KSC Application(s) available for use by Subscriber:
Web Hosting Service, including the following:
o Fractional use of a primary and redundant Pentium III 500 MHz
Processor
o NIT operating system
o Storage of up to 2 gigabytes per primary and redundant server
o 512kb of communications bandwidth
o 24 x 7 monitoring services
All of the designated KSC Applications are considered "Initial Applications" for
purposes of the Master Subscriber Agreement.
2. Pricing:
Implementation Charges: KSC will be paid on a time and
materials basis for work under the
Implementation Plan, as specified in
the Implementation Plan. KSC's
resources are currently billed at the
following hourly rates:
--------------------------------------
Resource Hourly rate
-------- -----------
--------------------------------------
Architect/Principal $195
--------------------------------------
Senior Analyst/Development $170
--------------------------------------
Project Manager $170
--------------------------------------
Business Analyst/
Systems Analyst $150
--------------------------------------
Programmer $150
--------------------------------------
In addition, Subscriber agrees to pay
KSC for the cost of all reasonable
and necessary travel, lodging and
miscellaneous expense incurred by KSC
in providing the implementation
services.
Monthly Fee: Subscriber will pay a Monthly Fee of
$3,995 for the Initial Term.
Notwithstanding the above, the Monthly
Fee shall be $2,500 for the month of
May, 2000; $3,000 for the month of
June, 2000; $3,500 for the month of
July, 2000; and $3,995 thereafter. For
redundant storage space in excess of 2
gigabytes, the one-time fee will be
$500 per gigabyte, in 1 gigabyte
increments. For maximum communications
bandwidth utilized in excess of
512kb, the Monthly Fee shall increase
by $750 per 512kb.
Third-party services fees: Licensee will pay KSC's standard
charges in effect through KSC from
time to time for third-party services
billed through KSC. Such third-party
costs include, but are not limited to,
annual domain name registration fees
from Internic.
3. Implementation Plan:
Subscriber and KSC will agree upon the Implementation Plan. The parties
agree to use their best efforts to reach such agreement within 30 days
of the date of this Attachment.
4. Initial Authorized Representatives:
To be specified in Implementation Plan.
5. KSC's approval of Subscriber's equipment and systems:
To be specified in Implementation Plan.
Agreed to: Agreed to:
Colonial Direct Financial Group ▇▇▇▇▇▇▇▇ Systems Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By ▇▇▇▇ ▇▇▇▇▇▇
---------------------------- -------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President ▇▇▇▇ ▇▇▇▇▇▇, CFO
------------------------------- ----------------------------
Name and Title Name and Title
Date: 4/18/2000 Date: 4/12/2000
------------------------- ----------------------
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