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EXHIBIT 10.17
INFORMATION PROCESSING SYSTEM AGREEMENT
BY AND BETWEEN
OPEN SOLUTIONS INC.,
A DELAWARE CORPORATION
(OSI)
AND
PINNACLE FINANCIAL PARTNERS INC.
(LICENSEE)
EFFECTIVE AS OF JULY 12, 2000
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<TABLE>
TABLE OF CONTENTS
INFORMATION PROCESSING SYSTEM AGREEMENT
<S> <C>
INFORMATION PROCESSING SYSTEM AGREEMENT...........................................................................1
1. Parties...........................................................................................................3
2. Components........................................................................................................3
3. Definitions.......................................................................................................3
4. Entirety of Agreement.............................................................................................7
5. Products and Services.............................................................................................7
6. Payments and Terms of Payment.....................................................................................8
7. Fees..............................................................................................................9
8. Term.............................................................................................................12
9. Termination......................................................................................................12
10. State Laws......................................................................................................13
11. Amendments......................................................................................................13
12. Acceptance......................................................................................................13
13. Limitation of Liability.........................................................................................13
14. Warranties, Representations and Limitations.....................................................................15
15. Notification of Changes.........................................................................................15
16. Confidentiality.................................................................................................16
17. Remedies for Breach.............................................................................................17
18. Miscellaneous...................................................................................................19
INITIAL PRODUCT ORDER.............................................................................................22
IMPLEMENTATION FEE SCHEDULE........................................................................................28
Conversion Support Services Fee.....................................................................................28
Data Conversion Services Fee........................................................................................28
Client Server Implementation Fee....................................................................................28
Certification of Network................................. ..........................................................28
Training Fee........................................................................................................28
Optional OSI Modules................................................................................................29
LICENSE FEE SCHEDULE..............................................................................................30
END USER SOFTWARE LICENSE........................................................................................32
1. Grant of License.................................................................................................32
2. Ownership of Software............................................................................................33
3. Infringement.....................................................................................................33
SUPPORT SERVICES TERMS AND CONDITIONS...........................................................................35
1. Support Coverage.................................................................................................35
2. Support Services.................................................................................................35
3. Term of Support Services.........................................................................................35
4. Remote Support Service...........................................................................................36
5. Response, Problem Resolution Standards and Error Correction......................................................36
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6. Exclusions.......................................................................................................36
ANNUAL SUPPORT FEESCHEDULE..........................................................................................38
IMPLEMENTATION TERMS AND CONDITIONS..............................................................................39
1. Implementation...................................................................................................39
2. Implementation Services..........................................................................................41
3. Fees and Payment.................................................................................................41
4. Term and Termination.............................................................................................42
5. Exclusions.......................................................................................................42
6. Limitation of Liability..........................................................................................42
TRAINING SCHEDULE..................................................................................................43
ESCROW TERMS AND CONDITIONS......................................................................................46
1. Source Code Agreement............................................................................................46
2. License..........................................................................................................46
3. Definitions......................................................................................................47
AMENDMENTS TO AGREEMENT...........................................................................................48
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1. PARTIES
This INFORMATION PROCESSING SYSTEM AGREEMENT (the "Agreement") is made and
entered into by and between Open Solutions Inc., a Delaware corporation (OSI),
and:
PINNACLE FINANCIAL PARTNERS, INC.(the "Licensee")
whose address is: 3401 WEST END AVENUE, SUITE 306
NASHVILLE, TN 37203
as of the "Effective Date" (as defined in section 3.9 below).
2. COMPONENTS
This Agreement incorporates the following attachments which bear the same
Agreement Number as set out in the header to this page above, each such
attachment being referred to individually as an "Attachment" and collectively as
the "Attachments":
a) Initial Product Order (Attachment # 1).
b) End User Software License (Attachment # 2).
c) Support Services Terms and Conditions (Attachment # 3).
d) Annual Support Fee Schedule, which shall be updated from time to time
(Attachment # 4).
e) Implementation Terms and Conditions (Attachment # 5).
f) Training Schedule (Attachment # 6).
g) Escrow Terms and Conditions (Attachment # 7).
h) Amendments to Agreement (Attachment # 8)
I) VERSION 3.4 OF THE OSI DOCUMENTATION (EXHIBIT A)
This Agreement may also incorporate Subsequent Product Orders and Service Orders
bearing the same Agreement Number as set out above, provided that:
a) OSI has provided the Subsequent Product Order or Service Order form to
Licensee;
b) OSI and the Licensee both execute such Subsequent Product
Order or Service Order; and
c) Attachments to a Subsequent Product Order or a Service Order shall
only apply to the Subsequent Product Order or Service Order to which
they are attached. Such attachments shall have no force or effect as
to any other product order, service order, purchase order,
confirmation or similar form, whether pre-existing or subsequently
entered into, even if signed by the parties after the date hereof.
3. DEFINITIONS
For purposes of this Agreement, capitalized terms wherever defined and used
shall have the same meaning throughout this Agreement, unless specifically by
the context where used. The following
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definitions shall apply throughout this Agreement and its Attachments:
3.1 ACCOUNT(S): The combined totals of Licensee's liability and asset
accounts processed on the Software.
3.2 ASSET SIZE: The total assets as described in the Licensee's most
recent quarterly report of condition ("Call report") filed with the
Primary Regulator.
3.3 CONVERSION: The conversion and formatting of Licensee's existing data
for use with the Licensed Software.
3.4 CURRENT RELEASE: The version of the Licensed Software most recently
distributed by OSI to its clients
3.5 DELIVERY: The installation of the Current Release of the Licensed
Software on the Licensee's Designated Computer Hardware or other
acceptable computer hardware as may be designated by the Licensor and
Licensee from time to time. Delivery shall also include the provision
by OSI to Licensee of certain Licensed Software including Optional
Modules and Third Party Interfaces for installation.
3.6 DESIGNATED COMPUTER HARDWARE: The computer and network equipment
listed on the Initial Product Order which OSI believes is compatible
with the Licensed Software (as hereinafter defined), and such other
computer and network equipment which OSI believes is compatible with
the Licensed Software.
3.7 DESIGNATED LOCATION: The street address of the primary data base
server which is part of the Designated Computer Hardware. The Licensee
may change the Designated Location by providing written notice to OSI.
3.8 DOCUMENTATION: All technical materials and documents, whether in
hard copy or magnetic media or machine readable form, regarding the
capabilities, operation, installation and use of the Licensed
Software (as hereinafter defined). The current version of the
Documentation that has been released is Version 3.4, which shall be
updated at OSI's discretion from time to time. A copy of this
documentation is incorporated by reference into this Agreement as
Exhibit A.
3.9 EFFECTIVE DATE: The date that this Agreement is last signed by the
duly authorized signatory of either OSI or Licensee.
3.10 ERROR: A condition in the Licensed Software which causes the OSI
Proprietary Software to fail to operate correctly.
3.11 ERROR CORRECTION: The use of commercially reasonable efforts to
correct Errors.
3.12 FIX: The repair of Licensed Software to remedy an Error.
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3.13 LICENSE. The non-exclusive, non-transferable, non-assignable,
non-sublicensable right to use OSI's Proprietary Software, or Third
Party Software licensed from OSI during the Term of this Agreement
subject to the restrictions set out in the End User Software
License (Attachment # 2).
3.14 HIGHER LEVEL LICENSE FEE: A license fee required to be paid by
Licensee as a result of Licensee or any entity in the Licensee Group
merging, adding affiliates or otherwise increasing beyond the
aggregate number of accounts for which Licensee has already paid a
License Fee or a Higher Level License Fee under this Agreement.
3.15 IMPLEMENTATION: The provision of services and processes in accordance
with Implementation Terms and Conditions (Attachment #5). in order for
the Licensed Software to be properly installed and operated with
Licensee's data after Conversion.
3.16 INCURRED EXPENSES: Reasonable travel and living expenses and other
reasonable out-of-pocket expenses incurred in Implementation,
Training, or Support Services, including (without limitation) file
conversion costs; optional products and services, or hardware
requested or authorized by Licensee; shipping charges; courier or
delivery charges; tape, cartridge or diskette costs; or voice or
non-voice telephone or communication costs.
3.17 INITIAL PRODUCT ORDER: Attachment #1 which states the products and
services initially ordered by Licensee under this Agreement for the
fees stated in the Initial Product Order.
3.18 LICENSE YEAR: Any 12 month period that commences on the Effective
Date, or an anniversary of the Effective Date, and ends at midnight on
the day before an anniversary of the Effective Date.
3.19 LICENSED SOFTWARE: All versions of OSI's Proprietary Software (as
hereinafter defined) and Third Party Software (as hereinafter defined)
licensed by OSI to Licensee under this Agreement.
3.20 LICENSEE GROUP: A subsidiary or affiliate of the Licensee, the parent
corporation of Licensee, and any holding company of which Licensee is
a subsidiary. For the purpose of this subsection, an affiliate will
mean a corporation that is more than fifty percent (50%) owned
directly or indirectly by the parent corporation of a Licensee, a
subsidiary shall be a corporation of which Licensee directly or
indirectly owns more than fifty percent (50%), and a parent
corporation shall be a corporation that directly or indirectly owns
more than fifty percent (50%) of Licensee, but only so long as such
entities continue to qualify as such an affiliate, subsidiary or
parent corporation.
3.21 LIVE PRODUCTION: Processing Licensee's data in an actual production
mode as opposed to testing mode only.
3.22 LIVE PRODUCTION DATE: The actual date on which Live Production first
occurs as
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documented by OSI in writing to Licensee.
3.23 PREVIOUS SEQUENTIAL RELEASE: The release of the Licensed Software
replaced by a subsequent release of the same Licensed Software.
3.24 PRODUCT UPDATES: New releases of the Licensed Software which support
new regulations and provide product enhancements and Fixes. Product
Updates consist of one copy of published revisions to the printed
Documentation and one copy of revisions to the machine readable
Licensed Software incorporated in the Product Updates.
3.25 OSI'S DATABASE MODEL: The version(s) of the database model, design and
algorithm owned and developed by OSI and incorporated into OSI's
Proprietary Software (as hereinafter defined).
3.26 OSI'S PROPRIETARY SOFTWARE: All version(s) of software owned by OSI
and OSI's Database Model.
3.27 OSI BASE SYSTEM: The OSI Proprietary Software containing the
functional content defined as part of the base system in the Initial
Product Order and referred to as The Complete Banking Solution in the
Initial Product Order..
3.28 OSI OPTIONAL MODULES: Software modules developed and proprietary to
OSI which are not included as part of the base system but which may
be licensed by Licensee for an additional license fee.
3.29 REMOTE LOCATIONS: The street addresses of locations other than the
Designated Location where terminals and computers are connected to the
Licensed Software through the Licensee's local and wide area networks.
The Licensee may change Remote Locations by providing written notice
to OSI.
3.30 SCHEDULED LIVE PRODUCTION DATE: The date specified in the initial
product order on which the Licensee anticipates using the Software for
Live Production.
3.31 SEATS: Term used for the users of the Licensed Software as represented
by the actual number of physical computer devices attached directly or
through a network to the Designated Hardware multiplied by a factor in
order to estimate concurrent users of the Licensed Software for
purposes of calculating license fees for the relevant portion of the
License Software.
3.32 SOFTWARE: The version(s) of OSI's Proprietary Software, and Third
Party Software (as hereinafter defined) ordered by Licensee through
OSI, as set forth in the Product Orders, in object code format or
database code format, together with the Documentation provided to
Licensee by OSI, including updates, modifications or new releases of
such software programs and Documentation that may be provided by OSI
to the Licensee from time to time.
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3.33 SPECIFICATIONS: All specifications set forth in:
a) this Agreement,
b) the Report (as defined in the Implementation Terms and
Conditions)
c) the Documentation and
d) all other functional and technical specifications applicable to
the Licensed Software.
3.34 SUBSEQUENT PRODUCT ORDER. Any order placed by Licensee after the
Initial Product Order.
3.35 SERVICES: OSI support services as described in Attachment 3.
3.36 TELEPHONE SUPPORT: Technical support telephone assistance provided by
OSI to the Technical Support Contact concerning problem resolution and
the use of the then current release of Licensed Software and the
Previous Sequential Release.
3.37 TERM: The Term of this Agreement shall commence on the Effective Date,
and shall continue for five (5) years from the Live Production Date .
The Term shall include any extension of such initial term or any
subsequent term as provided for herein.
3.38 THIRD PARTY SOFTWARE: All version(s) of:
a) Software owned by third parties and integrated by OSI into OSI's
Proprietary Software and provided and sub-licensed to Licensee by
OSI ("Third Party Software Licensed from OSI"), and
b) Software owned by third parties under which, or with which, OSI's
Proprietary Software operates and which is provided and licensed
to Licensee by third party providers ("Third Party Software
Licensed from Third Party").
4. ENTIRETY OF AGREEMENT
Each party's acceptance of this Agreement (as indicated by execution hereof by
their duly authorized representative) was and is limited to and is expressly
conditioned upon the other party's acceptance of the terms contained in this
Agreement, and its Attachments, to the exclusion of all other terms.
Accordingly, both parties agree that this Agreement and its Attachments are the
complete and exclusive statement of the mutual understanding of the parties and
shall and do supersede and cancel all previous written and oral agreements and
communications relating to the subject matter of this Agreement and its
Attachments.
5. PRODUCTS AND SERVICES
OSI will provide Licensee with the following:
a) OSI's Licensed Software as indicated on the Initial Product Order.
b) a limited license to use the Licensed Software, subject to the
conditions set forth in the END USER SOFTWARE LICENSE.
c) the maintenance and support services set forth in the SUPPORT
SERVICES TERMS AND
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CONDITIONS on the terms set forth therein and subject to the ANNUAL
SUPPORT FEE SCHEDULE.
d) the initial review, on-site survey and system implementation, as set
forth in the IMPLEMENTATION TERMS AND CONDITIONS, and training
services as set forth in the TRAINING SCHEDULE.
e) a full and current version and previous version of the Proprietary
Software in escrow, pursuant to the ESCROW TERMS AND CONDITIONS.
6. PAYMENTS AND TERMS OF PAYMENT
The fees required to be paid by Licensee to OSI under this Agreement include,
but may not be limited to, the initial License Fee, Third Party Software License
Fees, Third Party Interface Fees, Higher Level License Fees, an Annual Support
Fee, a Training Fee, an Implementation Fee and Incurred Expenses, all as set out
below. In the event that Licensee requires, or requests, additional services
then additional fees will be required. All invoices are due and payable upon
receipt. If OSI fails to invoice for a fee or Incurred Expenses, such failure
shall not waive the requirement for payment of the same. Any invoice or fee not
paid within thirty (30) days of the date due shall incur interest at the rate of
1.5% per month from the due date until paid to cover OSI's costs of collections
as well as interest, or, if lower, the maximum rate allowed by law unless
payment has been withheld as a result of a good faith dispute which the parties
agree to settle promptly. All amounts due under this Agreement shall be paid in
US dollars.
Amounts payable to OSI hereunder are payable in full without deduction, or set
off, and shall be in addition to all sales, use or other taxes or duties, which
Licensee shall also be responsible for paying. If an invoiced amount is
disputed, Licensee shall pay all undisputed amounts and notify OSI, in writing
and within fifteen (15) days of the receipt of invoice, specifying the amount
disputed and the nature of the dispute. OSI will investigate the disputed
amounts and resolve the matter as quickly as possible, either confirming or
revising the invoice as necessary. Licensee shall duly and timely pay all taxes
and duties, however designated, levied or based upon amounts payable to OSI
hereunder (exclusive of United States Federal, state or local taxes based upon
the net income of OSI) or the license, use or possession of the Licensed
Software. Licensee agrees to indemnify and hold OSI harmless from any such taxes
or duties which any federal, state or local taxing authority requires OSI to
pay. Licensee may challenge the applicability of any such tax so long as it
fully complies with applicable law in making such challenge, to include paying
the tax or giving OSI other satisfactory assurances of compliance, if payment is
required in order to make such challenge.
7. FEES
7.1 INITIAL LICENSE FEES
The Initial License Fees for the OSI Proprietary Software and OSI
Optional Modules and Third Party Software Licensed From OSI, are set
forth in the Initial Product Order and any subsequent Product Order(s).
Such fees are exclusive of installation fees, if applicable. The Initial
License Fee is calculated according to the License Fee Schedule set
forth in the Initial Product Order (Attachment # 1).
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7.2 PAYMENT OF INITIAL LICENSE FEES AND THIRD PARTY SOFTWARE LICENSE
FEES
Initial License fees for OSI Proprietary Software and OSI Optional
Modules and License Fees for Third Party Software Licensed From OSI
are due and payable according to the following schedule:
<TABLE>
<CAPTION>
WHEN DUE % PAYMENT
-------- ---------
<S> <C>
Included with the Signed Agreement sent to OSI for Acceptance 10 %
Delivery of the OSI Proprietary Software and of
Third Party Software Licensed From OSI 10 %
Upon Receipt of Charter 30 %
Live Production Date 50%
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7.3 HIGHER LEVEL LICENSE FEES
If Licensee or any entity in the Licensee Group, or any of them, merges,
adds affiliates or otherwise increases beyond the aggregate number of
actual accounts (active and inactive) for which Licensee has already
paid a License Fee or an Higher Level License Fee under this Agreement,
Licensee agrees to pay an additional Higher Level License Fee as
provided for in Initial Product Order (Attachment # 1). Notwithstanding
the above, there shall be no Higher Level License Fee unless or until
Licensee exceeds 25,000 accounts at which point the standard License Fee
Schedule in this Agreement shall apply. This amendment does not apply to
those accounts added as a result of a merger or acquisition. If as a
result of a merger or acquisition where the number of accounts added,
when taken in combination with the number of existing accounts of the
bank prior to the merger increases beyond the aggregate number of actual
accounts (active and inactive) for which Licensee has already paid a
License Fee or an Higher Level License Fee under this Agreement,
Licensee agrees to pay an additional Higher Level License Fee in
accordance with the standard provisions of this Agreement.
7.4 ANNUAL SUPPORT FEES
Annual support fees are based upon the list price of License Fees paid
in accordance with The Initial Product Order (Attachment #1), Higher
Level License Fees if applicable, Fees for Third Party Software Licensed
from OSI as indicated on The Initial Product Order as well as Fees for
additional third party software installed during the Term of this
agreement including Fees resulting from additional usage of third party
software as indicated in additional Seats installed, Fees for Third
Party interfaces as indicated on the Initial Product Order as well as
Fees for additional interfaces ordered and installed during the Term of
this agreement and Fees for OSI Optional Modules as indicated on the
Initial Product Order as well as Fees for additional OSI Optional
Modules ordered and installed during the Term of this agreement and the
Annual Support Fee Rate (Attachment #1) in effect at the commencement of
a License Year.
Support Services shall commence on the on the date of Delivery of the
Licensed Software
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and shall continue for the initial Term and any subsequent term of
this Agreement. The Annual Support Fee shall be billed on an annual
basis, payable in advance of OSI's providing annual Support Services
and shall be due and payable upon receipt by Licensee of OSI's
invoice. Licensee's payment shall be due upon receipt of OSI invoice.
Licensee shall be responsible for all taxes associated with Support
Services other than any taxes based on OSI's net income. In the event
Licensee fails to pay the Annual Support Fee to OSI by the due date,
then to reinstate or renew Support Services, Licensee shall first pay
OSI all unpaid prior Annual Support Fees, plus a late charge of 1.5%
per month from the date due to the date of payment, prorated daily,
and the then current Annual Support Fee, as computed in accordance
with the License Fee Schedule of this Agreement.
If OSI provides Support Services via a remote on-line connection to
Licensee's Designated Computer Hardware, Licensee hereby agrees to
assist OSI in the creation of such a remote on-line connection as part
of the Implementation of the Software and agrees to maintain and allow
OSI access to its Designated Computer Hardware and the Software
through such remote on-line connection. In the event that the remote
on-line connection is not available to OSI for reasons other than
those under OSI's reasonable control necessitating that OSI's
personnel have to attend Licensee's facility to perform Support
Services that would otherwise have been provided via the remote
on-line connection ("Additional Support Services"), Licensee agrees,
in addition to the Annual Support Fee:
a) to pay a per diem charge for all Additional Support Services at
OSI's then standard rates for such services and
b) to reimburse OSI for all Incurred Expenses incurred by or on
behalf of OSI and its personnel in providing the Additional
Support Services to Licensee at Licensee's facility, which shall
have been pre-approved by Licensee in writing.
Any such charges for Additional Support Services and Incurred Expenses
shall be billed by OSI to Licensee on a monthly basis.
7.5 IMPLEMENTATION FEES
Fees shall be due and payable for the following services related to
implementation and conversion (collectively referred to as
"Implementation Fees"). Such Implementation Fees are set out in the Fee
Schedule attached to the Initial Product Order (Attachment #1).
Implementation fees shall be due and payable at the time of performance
of the service for which the fee is charged. OSI shall be entitled to
bill for and collect an additional Implementation Fee if Implementation
is required whenever Licensee or any entity in the Licensee Group
merges, adds affiliates, or otherwise changes its organization or
structure such that implementation services are required from OSI.
7.5.1 CONVERSION SUPPORT SERVICES FEE
Licensee shall pay to OSI a Conversion Support Services Fee for
OSI's agreement to perform the activities and processes provided
for in subsections 1.a. and 1.f of the Implementation Terms and
Conditions (Attachment #5).
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7.5.2 DATA CONVERSION SERVICES FEE
Licensee shall pay to OSI a Data Conversion Services Fee for
OSI's agreement to perform the activities and processes provided
for in subsections 1.e., 1.j., and 1.k of the Implementation
Terms and Conditions (Attachment #5).
7.5.3 CLIENT/SERVER IMPLEMENTATION SERVICES FEE
Licensee shall pay to OSI a Client/Server Implementation Services
Fee for OSI's agreement to perform the activities and processes
provided for in subsections 1.b., 1.c., 1.d., 1.g, and 1.h of the
Implementation Terms and Conditions (Attachment #5).
7.6 TRAINING FEE A Training Fee is due and payable upon completion of
the training. The Training Fee is set out in the Fee Schedule attached
to the Initial Product Order.
7.7 THIRD PARTY INTERFACE FEE
Licensee shall pay to OSI a Third Party Interface Fee as set out in the
Fee Schedule attached to the Initial Product Order (Attachment #1) for
each Third Party Interface provided, or developed by OSI. Unless defined
in an amendment to the contrary, all Third Party Interfaces are presumed
to conform to OSI's standard interface format. If the Third Party
Software for which the Third Party Interface has been provided is
rewritten or modified in such a manner that only serves the needs of a
single Licensee or vendor or requires the development of a non-standard
interface, then OSI reserves the right to charge an additional Third
Party Interface Fee for any such interface which must be rewritten or
developed. In addition to Third Party Interface fees Licensee shall pay
an annual support fee for Third Party Interfaces as provided for in
paragraph 7.4 above. The Third Party Interface Fee shall be due and
payable to OSI upon Delivery by OSI to Licensee of the Third Party
Interface.
7.8 INCURRED EXPENSES
Incurred Expenses shall be due and payable immediately upon receipt by
Licensee of OSI's invoice for such incurred expenses.
7.9 FEE CHANGES
OSI reserves the right to adjust its fees and prices at any time subject
to thirty (30) days advanced notice. Such changes shall have no
retroactive effect on Licensee. Fees for all Third Party Software
Licensed through OSI is subject to change without notice based on the
price that OSI is charged by such vendors for such products.
7.10 OPTIONAL DECONVERSION SERVICES FEES
Upon termination of this Agreement, if requested by Licensee within
ninety (90) days of the termination, OSI shall provide services to
Licensee in connection with such termination, for example assisting in
data conversion. If Customer requests such services, then Licensee shall
pay to OSI fees for such services based upon OSI's then standard rates
plus all Incurred Expenses incurred by OSI in performing such services.
7.11 COST OF HARDWARE PURCHASED BY LICENSEE THROUGH OSI.
If hardware is ordered on behalf of Licensee including the hardware
required to be used in
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connection with the OSI real-time ATM Module,
such hardware shall be invoiced by OSI when the hardware is ordered by
OSI from the equipment manufacturer or dealer and such invoice shall be
due and payable upon receipt.
8. TERM
Subject to termination by OSI or Licensee as herein provided, the initial Term
of the License with respect to the OSI Licensed Documentation and Licensed
Software hereunder shall commence upon the Effective Date and continue for five
(5) years from the date of Live Production. The License shall be automatically
renewed at the end of the initial Term for one (1) additional year and each
subsequent year thereafter unless terminated pursuant to Section 9, if Licensee
is not then in material default under the terms of this Agreement and without
requirement for payment by the Licensee of a Higher Level License Fee, if, but
only if, the Licensee has not grown in Number of Accounts beyond the next level
as listed in the then current License Fee Schedule as set out in this Agreement.
9. TERMINATION
Licensee may terminate the License granted under this Agreement by giving OSI a
sixty (60) day prior written notice of termination. However, except for the
License and except as otherwise expressly provided herein, the terms, conditions
and obligations of this Agreement shall survive Termination. Termination shall
not be an exclusive remedy and all other remedies shall be available whether or
not the License or this Agreement is terminated.
If Licensee terminates this Agreement pursuant to this Section prior to the end
of the existing Term, then the Licensee shall immediately pay to OSI all moneys
due and payable to OSI at the time of termination in accordance with the terms
of this Agreement except for disputed items pending resolution as provided for
in Section 6 as amended, and in addition, as a termination fee and not as a
penalty, Licensee shall pay to OSI one/half of the fees which would be or become
due and payable pursuant to the Support Services Terms & Conditions for the
balance of the unexpired Term. Notwithstanding the above, if such termination
occurs as a result of a material default by OSI, after requisite notice and
opportunity to cure, then such termination shall occur without payment of a
termination fee by Licensee.
10. STATE LAWS
This Agreement shall be deemed to have been made in, and be construed pursuant
to the laws of the State of Georgia without regard to conflicts of laws
provisions thereof.
11. AMENDMENTS
This Agreement may only be changed or modified by a written agreement duly
signed by authorized representatives of both parties. Any waiver of any
provision of this Agreement shall be effective only if made in writing and
signed by a duly authorized representative of the waiving party.
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12. ACCEPTANCE
By their execution below, the parties, through their duly authorized
representatives, accept and enter into this Agreement and agree to be bound by
its terms and conditions. The undersigned individuals represent that each is
duly authorized and empowered and directed to execute this Agreement on behalf
of their respective organization.
13. LIMITATION OF LIABILITY
13.1 EXCEPT FOR ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY AS COVERED IN
SECTION 3 OF THE END USER SOFTWARE LICENSE INCLUDING US PATENTS, COPYRIGHTS,
TRADEMARKS TRADE NAMES OR ANY OTHER PROPRIETARY RIGHTS OF ANY THIRD PARTY, OSI'S
TOTAL LIABILITY TO LICENSEE OR ANY ENTITY IN THE LICENSEE GROUP UNDER ANY
PROVISION OF THIS AGREEMENT OR FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES
RELATING TO THE LICENSED PRODUCTS (WHETHER BASED ON TORT, CONTRACT, OR ANY OTHER
THEORY) SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE TO OSI AS
LICENSE FEES FOR THE LICENSED SOFTWARE GIVING RISE TO THE LIABILITY. THE PARTIES
ACKNOWLEDGE THAT EACH OF THEM RELIED UPON THE INCLUSION OF THIS LIMITATION IN
CONSIDERATION OF ENTERING INTO THIS AGREEMENT.
13.2 EXCEPT AS SPECIFICALLY OTHERWISE PROVIDED IN THIS AGREEMENT, OSI
SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE.
13.3 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE, OR INABILITY TO USE,
THE LICENSED PRODUCTS OR ARISING OUT OF ANY OTHER CIRCUMSTANCES ASSOCIATED WITH
THE SUBJECT MATTER OF THIS AGREEMENT AND ITS ATTACHMENTS, AND IN SUCH RESPECT
NEITHER PARTY SHALL BE ENTITLED TO DAMAGES BASED ON LOSS OF PROFIT, LOSS OR
INTERRUPTION OF DATA OR COMPUTER TIME, ALTERATION OR ERRONEOUS TRANSMISSION OF
DATA, EVEN IF THE OTHER PARTYIS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH
DAMAGES OR SHOULD HAVE KNOWN OF SUCH POSSIBILITY. THE LIMITATION IN THIS SECTION
DOES NOT APPLY TO OSI'S INDEMNITY UNDER SECTION 3 OF THE END USER LICENSE
AGREEMENT.
13.4 THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT TAKE THE PLACE OF AND
SUPERSEDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED AND WHETHER OF
MERCHANT-ABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. EXCEPT AS
EXPRESSLY PROVIDED HEREIN, OSI DOES NOT WARRANT, GUARANTEE, OR MAKE ANY
REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE LICENSED
SOFTWARE OR
PAGE 13
<PAGE>
DOCUMENTATION .
13.5 THE LICENSEE UNDERSTANDS THAT OSI IS NOT RESPONSIBLE FOR AND WILL HAVE NO
LIABILITY FOR AND DOES NOT WARRANT ANY HARDWARE, SOFTWARE PRODUCED BY OTHERS AND
LICENSED TO LICENSEE, WHETHER DIRECTLY FROM THE THIRD PARTY OR THROUGH OSI AS A
SUBLICENSOR, OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSONS OTHER THAN
OSI.
13.6 EXCEPT FOR OSI'S INDEMNITY OBLIGATIONS UNDER SECTION 3 (RELATING TO
INTELLECTUAL PROPERTY INFRINGEMENTS) OF THE END USER SOFTWARE LICENSE
(ATTACHMENT # 2), OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, ANY LIABILITY
OSI MAY HAVE FOR PERSONAL INJURY OR DAMAGE OR DESTRUCTION OF REAL OR TANGIBLE
PERSONAL PROPERTY, OSI'S LIABILITY TO LICENSEE FOR ANY CAUSE WHATSOEVER AND
REGARDLESS OF THE FORM OF ACTION AND WHETHER IN CONTRACT OR TORT, OR AT LAW OR
EQUITY, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO OSI BY LICENSEE AS LICENSE
FEES FOR THE LICENSED SOFTWARE GIVING RISE TO THE LIABILITY.
13.7 THE TERMS AND CONDITIONS OF THIS AGREEMENT CONSTITUTE A SERVICE CONTRACT
AND NOT A PRODUCT WARRANTY. THE LICENSED SOFTWARE AND ALL MATERIALS RELATED TO
THE LICENSED SOFTWARE ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN
THIS AGREEMENT.
13.8 THE TERMS AND CONDITIONS OF THIS SECTION 13 SHALL SURVIVE TERMINATION OF
THIS AGREEMENT FOR ANY REASON.
14. WARRANTIES, REPRESENTATIONS AND LIMITATIONS
OSI WARRANTS AND REPRESENTS THAT THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN
ACCORDANCE WITH THE SPECIFICATIONS PERIODICALLY DELIVERED BY OSI TO LICENSEE.
OSI WARRANTS THAT IT WILL NOT WRONGFULLY DISABLE OR OTHERWISE RENDER INOPERABLE
THE SOFTWARE OR ANY OTHER HARDWARE OR SOFTWARE ON LICENSEE'S COMPUTER SYSTEM FOR
ANY REASON. ANY LIMITATION OF LIABILITIES SET OUT IN THIS SECTION AND WITH
RESPECT TO OSI WILL BE NULL AND VOID IF OSI BREACHES ITS AGREEMENT SET FORTH IN
THE IMMEDIATELY PRECEDING SENTENCE.
THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, WARRANTY DISCLAIMERS, WARRANTY
LIMITATIONS, LIABILITY LIMITATIONS AND USE
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<PAGE>
LIMITATIONS. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND
LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT AND ITS ATTACHMENTS ARE A
MATERIAL BARGAINED FOR BASIS OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN
INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN AND
ACCEPTED BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO
ENTER INTO THIS AGREEMENT.
OSI WARRANTS THAT THE LICENSED SOFTWARE IS AND WILL CONTINUE TO BE "YEAR 2000
READY". THE TERM "YEAR 2000 READY" REPRESENTS THAT WE HAVE TESTED THE LICENSED
SOFTWARE AND THAT IT ACCURATELY PROCESSES DATE AND/OR TIME DATA (INCLUDING, BUT
NOT LIMITED TO, CALCULATING, COMPARING AND SEQUENCING) FROM, INTO AND BETWEEN
THE 20TH AND 21ST CENTURIES, THE YEARS 1999 AND 2000, AND LEAP YEAR CALCULATIONS
(YEAR 2000 IS A LEAP YEAR). FURTHERMORE, THE LICENSED SOFTWARE, WHEN USED IN
COMBINATION WITH OTHER INFORMATION TECHNOLOGY, WILL ACCURATELY PROCESS DATE
AND/OR TIME DATA IF THE OTHER INFORMATION TECHNOLOGY PROPERLY EXCHANGES DATE
AND/OR TIME DATA WITH IT. THIS WARRANTY IS A YEAR 2000 READINESS DISCLOSURE
WITHIN THE MEANING OF THE FEDERAL YEAR 2000 INFORMATION AND READINESS DISCLOSURE
ACT.
OSI WARRANTS THAT ALL IMPLEMENTATION AND SUPPORT SERVICES WILL BE PERFORMED IN A
PROFESSIONAL AND WORKMANLIKE FASHION CONSISTENT WITH INDUSTRY STANDARDS.
15. NOTIFICATION
Licensee shall notify OSI prior to changes to or installation of hardware or
equipment in addition to the Designated Computer Hardware. Upon a request for
information by OSI, Licensee also shall provide a written report to OSI on or
prior to each anniversary of an Effective Date of Licensee's Asset and Account
size. Provision of support and maintenance by OSI to Licensee under the Support
Services Terms and Conditions is conditioned upon Licensee promptly notifying
OSI of such changes to or installation of hardware or equipment in addition to
the Designated Computer Hardware.
16. CONFIDENTIALITY
16.1 Licensee acknowledges that, in the course of using the Licensed
Software it may receive confidential information relating to the
Licensed Software including, but not limited to, the Licensed
Software's mode of operation, trade secrets, know-how, inventions
(whether or not patentable), techniques, processes, programs,
ideas, algorithms, schematics, testing procedures, software
design and architecture, computer code and database model,
internal documentation, design and function specifications,
product requirements, problem reports, analysis and performance
information, user
PAGE 15
<PAGE>
documentation and other technical information, plans and data,
all of which is confidential and of value to OSI's business (the
"Software Confidential Information"). Such Software Confidential
Information shall belong solely to OSI and Licensee agrees that
it will not use or disclose any Software Confidential Information
without OSI's prior written consent, except as expressly allowed
by this License Agreement.
16.2 As part of the arrangements contemplated by this Agreement, each
party acknowledges that it will receive valuable business,
marketing, financial and other information, plans and data from
the other party which is the confidential property of the
disclosing party. All information and data which is marked
"Confidential" or, in the case of orally conveyed information,
which is confirmed in writing within thirty (30) days of
conveyance to be confidential (the "General Confidential
Information" of the disclosing party) shall be treated as
confidential thereafter. The following types of information shall
always be considered confidential information (whether or not
marked as "Confidential"): financial information, marketing and
business plans, software products and systems and customer lists
or data. Each of the parties agrees that it shall not copy, use
or disclose any General Confidential Information of the other
party without its prior written consent, except as expressly
allowed by this License Agreement.
16.3 Each party agrees in respect of General Confidential Information
which it receives from the other party, OSI agrees in respect of
the Licensee Confidential Information and Licensee agrees in
respect of the Software Confidential Information that it shall:
a) take all reasonable measures to maintain such information in
confidence,
b) disclose such information only to those of its employees,
agents and consultants who have a "need to know", and only
after such employees and consultants have agreed in writing
to be bound by all of the confidentiality provisions of this
License Agreement,
c) not use such information for any purpose other than the
purposes expressly provided herein, and
d) not copy such information except as expressly provided
herein.
Except as provided herein, Licensee shall not, without the prior
written consent of OSI, disclose or otherwise make available the
Licensed Software or copies thereof to any third party. The
foregoing provisions shall not preclude Licensee from operating
the Licensed Software in the ordinary course of Licensee's
business for its intended purpose and for the use licensed
hereunder in the presence of third parties or from providing
copies of the output and reports of the Licensed Software to such
third parties.
16.4 The confidentiality obligations set forth in this Agreement shall
not apply with respect to information (except Licensee's
Confidential Information) which
a) is or has become readily publicly available without
restriction through no fault of
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<PAGE>
the receiving party or its employees or agents,
b) is received without restriction from a third party lawfully
in possession of such information and lawfully empowered to
disclose such information,
c) was rightfully in the possession of the receiving party
without restriction prior to its disclosure by the other
party, or
d) is independently developed by employees, consultants or
agents of the receiving party without access to the Software
Confidential Information or the disclosing party's General
Confidential Information.
16.5 The parties recognize and agree that there is no adequate remedy
at law for a breach of the provisions of this Section 16, that
such a breach would irreparably harm the non-disclosing party and
that the non-disclosing party is entitled to equitable relief
(including, without limitation, injunctions) with respect to any
such breach or potential breach in addition to any other remedies
available to it at law or in equity.
16.6 The provisions of this Section 16 shall survive termination or
expiration of the License and this Agreement for any reason
whatsoever.
17. REMEDIES FOR BREACH
17.1 Either party's remedy in the event of a breach by the other party
shall include an action for damages and, in the event of a
material breach of the provisions relating to restrictions on use
of the Licensed Software or relating to confidentiality hereof,
equitable relief to enjoin the activity of the party constituting
the breach; provided, however, that as a condition to either such
remedy, to the extent the terms of this Agreement requires
written notice of such breach prior to commencement of a suit or
legal action, the non-breaching party shall have first given the
breaching party such notice of breach and the opportunity to cure
within a thirty (30) day period.
17.2 In addition to the other remedies, in law or equity, available to
OSI hereunder, in the event of a breach by Licensee of the
provisions of sub-subsection (a) of Subsection 1.1 of the End
User Software License (Attachment #2) (relating to reverse
engineering) or Section 16 (relating to confidentiality) which
breach:
a) threatens to have a material adverse impact on the value of the
Software Confidential Information (as hereinafter defined), and
b) can be corrected by reasonable corrective steps available to
the Licensee, then OSI may terminate the License so long as
it complies fully with the provisions of this Section 17.2,
as follows:
i) OSI must notify Licensee in writing ("Notice of Breach")
specifying the actions constituting the alleged breach and
the reasonable steps which it believes can and must be taken
by Licensee to correct such breach.
ii) If Licensee, within thirty (30) days following the date of
such Notice of Breach,
PAGE 17
<PAGE>
implements the steps specified by OSI for correcting the
breach, or proposes other similar reasonable steps
calculated to correct such breach and OSI agrees in writing
to the steps proposed by Licensee, then OSI may not
terminate the License until Licensee has in good faith taken
such steps and has been unsuccessful in remedying the
breach.
iii) If Licensee fails or refuses, within thirty (30) days
following receipt of such Notice of Breach, to commence
taking the steps required by OSI, or proposed by Licensee
and approved in writing by OSI, to correct the breach and
OSI elects to terminate the License, OSI shall provide
further written notice (the "Notice of Termination") to
Licensee of its intention to terminate the License effective
no less than thirty (30) days after the date of the Notice
of Termination.
iv) Such termination shall only take effect if:
(a) the thirty (30) day notice period expires without the
Licensee having undertaken reasonable corrective steps
which have either been concluded or are being
continuously being pursued with all reasonable
diligence, and
(b) the tolling period in effect as provided in Section
17.3 below, if any, has expired.
17.3 Any dispute which arises between the parties concerning the
interpretation and application of Section 17.2 or the performance of
the obligations thereof or any other matters relating to this
Agreement, which dispute cannot be promptly resolved by the parties,
may be submitted by either party to mediation in Atlanta, Georgia ,
with the parties sharing equally the cost of mediation. The
termination of the License provided for in Section 17.2 shall be
tolled (suspended) pending the completion of and determination of the
results of such mediation. . The parties agree that after having made
a good faith but unsuccessful effort to resolve the matter through
mediation, then the matter shall be submitted to binding arbitration
in Atlanta, Georgia under the Commercial Rules of the American
Arbitration Association. The arbitration shall be conducted before a
single arbitrator having knowledge and experience with technology
matters. The arbitration award shall be final and binding on the
parties and judgment thereon may be entered by any court of competent
jurisdiction.. Notwithstanding any of the foregoing to the contrary,
in the event the dispute involves a question of irreparable injury,
the aggrieved party shall have the right to immediately seek equitable
relief in any state or federal court of competent jurisdiction
situated in Atlanta, Georgia without first having to submit the matter
to mediation or arbitration.
17.4 Unless otherwise agreed to in writing by OSI, upon termination of the
License Licensee shall immediately cease all use of the Licensed
Software and all portions thereof (whether or not modified or
incorporated with or into other software), return to OSI or destroy
all copies of the Licensed Software and Documentation and all portions
thereof, and have an executive officer of Licensee so certify in
writing to OSI.
17.5 Unless this Agreement has expired, except for the License and except
as otherwise
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<PAGE>
expressly provided herein, the terms of this Agreement shall
survive termination of the License.
18. MISCELLANEOUS
18.1 NOTICE OF DEFAULT. Except as to a breach of the obligations relating
to confidentiality for which no notice is required prior to
commencement of a suit or other legal action, neither party may
commence a suit or legal action on account of a default by the other
party in the performance of any of its obligations under this
Agreement, unless the party seeking to bring such suit or action shall
first give the defaulting party written notice of the default and
opportunity to cure within the notice period required by this
Agreement, specifying the nature and circumstances thereof.
Such notice shall be given at least thirty (30) days prior to the
commencement of the suit or legal action, except for non-payment which
shall only require a ten (10) days notice.
Except as noted and upon appropriate notice, the parties shall follow
the process relating to dispute resolution as described in Section
17.3 above as amended prior to instituting legal action.
18.2 FORCE MAJEURE. Neither party shall be deemed to have breached this
Agreement or this License Agreement by reason of any delay or failure
in its performance arising from events beyond its reasonable control,
including, but not limited to, acts of God, acts of war, riot,
epidemic, fire, flood or other disasters.
18.3 NOTICES. Any notice, report, approval or consent required or permitted
hereunder shall be delivered in writing, or mailed by registered or
certified US mail, postage prepaid or reputable overnight carrier
(e.g. Federal Express) to the address set forth in the Initial Product
Order for notices (or such other address as a party may designate by
ten (10) days written notice delivered in accordance with this Section
18.4) and shall be deemed given upon receipt.
18.4 NON-WAIVER. No failure to exercise, and no delay in exercising, on the
part of either party, any privilege, any power or any rights hereunder
will operate as a waiver thereof, nor will any single or partial
exercise of any right or power hereunder preclude future exercise of
any other right or power hereunder. If any provision of this License
Agreement or this Agreement shall be adjudged by any court of
competent jurisdiction to be unenforceable or invalid, that provision
shall be limited or eliminated to the minimum extent necessary so that
this License Agreement and this Agreement shall otherwise remain in
full force and effect and enforceable.
18.5 ATTORNEY'S FEES. The prevailing party in any action to enforce this
License Agreement
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<PAGE>
or this Agreement shall be entitled to recover costs and expenses
including, without limitation, reasonable attorneys' fees.
18.6 CONFIDENTIALITY OF TERMS OF AGREEMENT. The price and terms of this
Agreement are confidential and no press release or other written or
oral disclosure of any nature regarding the price terms of this
Agreement shall be made by either party without the other party's
prior written approval; however, approval for such disclosure shall be
deemed given to the extent such disclosure is required to comply with
governmental laws, orders, rules or regulations.
18.7 PRIORITY OF DOCUMENTS. In the event of a conflict or ambiguity among
any of the documents constituting the Specifications, such conflict
shall be resolved first in favor of this Agreement, secondly in favor
of the Report, thirdly in favor of the Documentation and lastly in
favor of the other functional, technical and design specifications,
which have been provided to Licensee by OSI, and are applicable to the
Licensed Software.
18.8 NON-ASSIGNMENT. Licensee may not assign this Agreement, nor any right
it has under this Agreement, including the License granted in this
Agreement to any other person or entity without the prior written
consent of OSI except in the event of a voluntary or involuntary sale,
assignment or other transfer of an interest in Licensee with an
accompanying transfer of all or substantially all of the business
operations of Licensee. Any voluntary or involuntary sale, assignment
or other transfer of an interest in the Licensee, or any other entity
to whom this License has been transferred or assigned with OSI's
consent, which has the effect of transferring an interest in this
Agreement or the License without an accompanying transfer of all or
substantially all of the business operations of Licensee, is an
assignment which will require OSI's prior written consent and OSI
reserves the right to withhold that consent for any reason whatsoever.
If Licensee is involuntarily acquired by operation of law by another
entity or person, the License will terminate and cease to be of any
force and effect immediately prior to that acquisition unless the
acquiring entity or person agrees in writing to undertake all of the
Licensee's obligations under this Agreement and the License. If the
acquiring person or entity does agree in writing to undertake those
obligations, then OSI's consent will be deemed to have been given and
OSI will not charge a license fee to the acquiring entity or person.
OSI shall not assign any of its material obligations under the Support
Services Terms and Conditions (Attachment #3) and the Implementation
Terms and Conditions (Attachment #5) of this Agreement without the
prior written consent of Licensee which consent shall not be
unreasonably withheld. Any voluntary or involuntary sale, assignment
or other transfer of an interest in OSI with an accompanying transfer
of all or substantially all of the business operations of OSI, is an
assignment which does not require Licensee's prior consent.
LICENSEE: PINNACLE FINANCIAL PARTNERS INC.
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<PAGE>
Signature: /s/ Hugh M. Queener Date: June 27, 2000
------------------------------ -----------------
Name: Hugh M. Queener Title: Chief Administrative Officer
----------------------------------- ----------------------------
Address: 3401 WEST END AVENUE, SUITE 306
------------------------------------------------------------------------------
City: NASHVILLE State TN Zip: 37203
------------------------------------------------------------------------------
OPEN SOLUTIONS INC.
Signature: /s/ John L. Person Date: July 12, 2000
------------------------------------------------ --------------
Name: JOHN L. PERSON Title: PRESIDENT
--------------------------------------------- ---------------------
Address: 300 WINDING BROOK DRIVE
----------------------------------------------------------------------
City: GLASTONBURY State: CT Zip: 06033
-------------------------------- ------------------ ------------
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<PAGE>
INITIAL PRODUCT ORDER
PAGE 22
INITIAL PRODUCT ORDER (ATTACHMENT #1)
<PAGE>
PAGE 23
INITIAL PRODUCT ORDER (ATTACHMENT #1)
<PAGE>
PAGE 24
INITIAL PRODUCT ORDER (ATTACHMENT #1)
<PAGE>
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INITIAL PRODUCT ORDER (ATTACHMENT #1)
<PAGE>
THIS PAGE IS INTENTIONALLY LEFT BLANK.
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INITIAL PRODUCT ORDER (ATTACHMENT #1)
<PAGE>
THIS PAGE IS INTENTIONALLY LEFT BLANK.
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INITIAL PRODUCT ORDER (ATTACHMENT #1)
<PAGE>
IMPLEMENTATION FEE SCHEDULE
FEES
CONVERSION SUPPORT SERVICES 20,000
FEE:
- PROJECT MANAGEMENT
- PROJECT PLAN DEVELOPMENT AND REVIEW
- STATUS REPORTING
- KICKOFF MEETING
DATA CONVERSION SERVICES FEE 8,500
- PRODUCT MAPPING
- INVENTORY PRODUCTS
- CONVERSION PROGRAMMING
- TESTING AND ERROR RESOLUTION
CLIENT SERVER IMPLEMENTATION 14,000
FEE:
- VERIFICATION OF THE OPERABILITY OF THE CLIENT
SERVER ENVIRONMENT
- INSTALLATION OF ORACLE, DATA REPLICATION
& FINANCIAL PRINTING SOFTWARE, ETC.
- CERTIFICATION OF OSI TCBS
TRAINING FEE: 7,600
- ALLOWANCE 30 STUDENT DAYS
CURRICULUM
- ERA TRAINING
PRODUCT MANAGER/PRODUCT SETUP WORKSHOP
- DEPOSIT TRAINING
- LOAN TRAINING
- OPERATIONS TRAINING
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INITIAL PRODUCT ORDER (ATTACHMENT #1)
<PAGE>
- IRS REPORTING
OPTIONAL OSI MODULES IMPLEMENTATION
- SECONDARY MARKET MANAGEMENT
- OSI ACH ORIGINATION
TOTAL IMPLEMENTATION FEE (EXCLUDING INCURRED EXPENSES) $50,150
ADDITIONAL SERVICES PER DIEM: $1,250-2,000
NOTE: TRAINING CONDUCTED AT OSI (CO-MINGLED WITH OTHER CLIENTS)
ADDITIONAL STUDENT DAYS AVAILABLE AT $300/DAY DURING PRE-INSTALLATION
PERIOD FOR TRAINING AT OSI, RATES DO NOT INCLUDE LODGING, MEALS AND
TRANSPORTATION FOR CLIENT PERSONNEL
PAGE 29
INITIAL PRODUCT ORDER (ATTACHMENT #1)
<PAGE>
<TABLE>
<CAPTION>
LICENSE FEE SCHEDULE
(EFFECTIVE JANUARY 1, 2000)
(License Fees are based on the number of actual Accounts)
NUMBER OF ACCOUNTS LICENSE FEE FOR OSI BASE SYSTEM
------------------ --------------------------------
<S> <C>
< 7,200 Accounts $140,000
< 15,000 Accounts $175,000
< 25,000 Accounts $225,000
< 40,000 Accounts $250,000
< 60,000 Accounts $300,000
< 75,000 Accounts $375,000
< 85,000 Accounts $450,000
< 100,000 Accounts $550,000
< 120,000 Accounts $650,000
< 140,000 Accounts $750,000
< 160,000 Accounts $825,000
< 180,000 Accounts $875,000
< 200,000 Accounts $925,000
< 220,000 Accounts $975,000
< 240,000 Accounts $1,025,000
< 260,000 Accounts $1,075,000
< 280,000 Accounts $1,125,000
< 320,000 Accounts $1,275,000
< 360,000 Accounts $1,425,000
< 400,000 Accounts $1,500,000
</TABLE>
The License Fee Schedule, and the Annual Support Fee Rate are subject to change.
License fees based upon the number of accounts shall be adjusted after
conversion when the actual number of converted accounts has been determined, and
shall include both active and inactive accounts which are converted by OSI.
Additions to or changes in the Licensee's Designated Computer Hardware
subsequent to Conversion and Installation will result in additional Initial
License Fees.
PAGE 30
INITIAL PRODUCT ORDER(ATTACHMENT #1)
<PAGE>
The Higher Level License Fee shall be equal to the difference between the sum of
the initial License Fee plus any subsequent Higher Level License Fees already
paid by Licensee under this Agreement and the then current License Fee for the
number of accounts according to OSI's then current License Fee Schedule.
Increases in Licensee's Account size may result in increases in Annual Support
Fees for OSI Proprietary Software, OSI Optional Modules and Third Party
Interfaces. Additions to or changes in the Licensee's Designated Computer
Hardware subsequent to Conversion and Installation may result in additional
Annual Support Fees for Third Party Software Licensed from OSI.
If the Licensee has grown to the next level or beyond then Licensee shall pay to
OSI the differential between the original license fee paid by Licensee and the
next level or levels of the then current License Fee Schedule except as amended
in section 7.3.
ADDITIONAL ATTACHMENTS FOLLOW
PAGE 31
INITIAL PRODUCT ORDER(ATTACHMENT #1)
<PAGE>
END USER SOFTWARE LICENSE
This End User Software License (the "License Agreement") (Attachment #2) to this
Agreement relates to and is hereby incorporated into the Information System
Processing Agreement bearing the number set out in the heading to this page.
Capitalized terms not defined in this License Agreement have the same meaning as
defined elsewhere in this Agreement.
1. GRANT OF LICENSE
Subject to the terms and conditions set forth in this Agreement, OSI grants
Licensee and only Licensee, a License to use the Licensed Software during the
initial and any subsequent Term of this Agreement. This right does not apply to
acquired institutions or other entities in the Licensee Group without payment of
incremental License Fees calculated per the then current "License Fee Schedule"
which forms a part of the Initial Product Order (Attachment # 1).
1.1 RESTRICTIONS ON LICENSE
The License grants the right to use OSI's Proprietary Software and Third
Party Software licensed from OSI under this Agreement to process Licensee's
own data, and the data of entities in the Licensee Group. Provided, however,
Licensee may process the data only of such entity in the Licensee Group for
which Licensee paid or pays, prior to commencement of processing for such
entity in the Licensee Group, License Fees at all times sufficient for the
aggregate number of accounts calculated in combination with the number of
accounts of Licensee.
The License to use the Third Party Software is subject to the further
restrictions and limitations provided in OSI's master licensing agreements
with the third parties to whom the Third Party Software belongs.
Except as otherwise provided in the Escrow Terms and Conditions, Licensee
has no right to receive, use or examine any Source Code (as defined in the
Escrow Terms and Conditions) or design specifications relating to the
Licensed Software and the License grants no such right.
The License gives Licensee the right to make such copies of the Licensed
Software and Documentation as are reasonably necessary for Licensee's
internal use of the Licensed Software and Documentation as contemplated
hereunder and for back up and archival purposes. In exercising this right,
Licensee shall not remove any copyright notice or other proprietary right
notices and restrictions on use that appear in or on the original Licensed
Software and Documentation or on any copies and any media therefor.
Licensee shall not, and shall not allow any third party to, without OSI's
prior written consent:
a) translate, interpret, decompile, disassemble, or otherwise reverse
engineer or attempt to reconstruct or discover any source code,
algorithms or underlying ideas incorporated in the Licensed Software,
b) remove any product identification, copyright or other notices from the
Licensed Software,
c) provide, lease, lend, use for timesharing or service bureau purposes
or allow others to use
PAGE 32
END USER SOFTWARE LICENSE (ATTACHMENT #2)
<PAGE>
the Licensed Software to or for the benefit of third parties,
d) except as specified in the Specifications or Documentation provided by
OSI, modify, incorporate into other software or create a derivative
work of any part of the Licensed Software,
e) load or use any portion of the Licensed Software (whether or not
modified or incorporated into or with other software) on or with any
machine or system other than Licensee's Designated Computer Hardware,
f) except if, as and to the extent expressly authorized in the applicable
user Documentation provided by OSI, transmit or use the Software over
a network. This restriction does not prohibit interfacing to external
systems or networks used by Licensee for its ordinary and necessary
business operations.
g) disseminate performance information or analysis (including, without
limitation, benchmarks) to any other party relating to the Licensed
Software,
h) sell applications developed by Licensee which incorporate access to,
or work against OSI's Database Model.
i) make any modifications or additions to the Licensed Software or
Documentation without the prior written consent of OSI except as
permitted by law.
2. OWNERSHIP OF SOFTWARE
As between the parties, OSI retains title to and ownership of and all
proprietary rights with respect to the Licensed Software and OSI's Database
Model and all copies and portions thereof, whether or not incorporated into or
with other software. The License does not constitute a sale of the Licensed
Software or any portion or any copy or reproduction of it. The License does not
constitute a sale or transfer of any ownership interest in the Licensed
Software, but merely constitutes a limited right to use the Licensed Software as
set out herein.
3. INFRINGEMENT
3.1 OSI represents and warrants that it has the sole ownership of
and/or the right to license and sub-license the Licensed Software
as contemplated by this Agreement and this License Agreement and
has the full power to grant the rights granted herein without the
consent of any other person or entity.
3.2 OSI shall defend, indemnify and hold Licensee and its officers,
directors, agents and employees harmless from and against any and
all claims, suits, damages, liabilities, costs and expenses
(including reasonable attorneys' fees) arising out of or
resulting from any claim that Licensee's use of the OSI
Proprietary Software infringes a United States patent or
copyright, or trademark or misappropriates a trade secret or
proprietary right of any third party, provided OSI is:
a) promptly notified of any and all threats, claims and
proceedings related thereto,
b) given reasonable assistance (at OSI's sole cost and
expense), and
c) given the opportunity to choose counsel, assume sole control
over the defense and all negotiations for a settlement or
compromise.
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END USER SOFTWARE LICENSE (ATTACHMENT #2)
<PAGE>
The provisions of this Section 3.2 do not apply to any Third Party
Software.
3.3 In the event that the Licensed Software, or any portion thereof,
becomes the subject of a claim of infringement or misappropriation,
OSI may, at its expense, take any of the following steps so that
Licensee's use is not subject to any claim of infringement or
misappropriation and Licensee is provided with functionally equivalent
software, provided that Licensee's use of the Licensed Software
conforms with the provisions of this Agreement:
a) procure for Licensee the right to continue using the Licensed
Software or
b) replace or modify the infringing portion of the Licensed Software
with functionally equivalent software .
3.4 The foregoing obligations of OSI do not apply with respect to software
and any other products or portions or components thereof:
a) which are not the latest available release, and release
immediately prior to the latest available release, supplied by
OSI to Licensee,
b) which are modified by Licensee after shipment by OSI, if the
alleged infringement relates to such modification, unless OSI has
consented to the modification in writing, or such modifications
is otherwise authorized, permitted or provided for under the
Specifications, Documentation or this License Agreement, or
c) which are combined with other products, processes or materials
where the alleged infringement relates to such combination,
unless OSI has consented in writing to such combination or such
combination is otherwise authorized, permitted or provided for
under the Specifications, Documentation or this License
Agreement.
3.5 THE FOREGOING STATES THE ENTIRE LIABILITY OF OSI WITH RESPECT TO
INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADEMARKS OR
MISAPPROPRIATION OF TRADE SECRETS BY THE OSI PROPRIETARY SOFTWARE OR
ANY PARTS THEREOF. NO COSTS OR EXPENSES SHALL BE INCURRED FOR THE
ACCOUNT OF OSI BY LICENSEE OR ITS AGENTS WITHOUT THE PRIOR WRITTEN
CONSENT OF OSI.
ADDITIONAL ATTACHMENTS FOLLOW
PAGE 34
END USER SOFTWARE LICENSE (ATTACHMENT #2)
<PAGE>
SUPPORT SERVICES TERMS AND CONDITIONS
This Support Services Terms and Conditions (Attachment #3) to this Agreement
relates to and is hereby incorporated into the Information System Processing
Agreement bearing the number set out in the heading to this page. Capitalized
terms not defined in Section 1 below have the same meaning as defined elsewhere
in this Agreement.
1. SUPPORT COVERAGE
Subject to the terms hereof, OSI shall provide Support Services to Licensee for
the Licensed Software indicated on the Initial Product Order and Subsequent
Product Orders. OSI shall also provide Support Services hereunder for each
additional Installation of Licensed Software, provided Licensee pays to OSI
Initial License Fees and Annual Support Fees for such additional Installations
as specified in subsequent Product Orders. Support Services must be obtained
separately for each Installation of Licensed Software.
2. SUPPORT SERVICES
Support Services consist of:
a) Telephone Support provided to the Licensee's Technical Support
Contact concerning the Installation and use of the then current
release of the Licensed Software and Previous Sequential Release,
b) Product Updates of the Licensed Software that OSI in its discretion
makes generally available to its customer base. Support Services do
not include the physical installation of Product Updates. Product
Updates installation may be performed by OSI upon Licensee's written
request and shall be billable to Licensee at OSI's then current
applicable rate.
c) As part of the Support Services provided hereunder, OSI agrees to
provide Product Updates on a timely basis in order to enable Licensee
to comply with federal banking laws and regulations pertaining to the
subject matter of the Licensed Software. OSI represents and warrants
that the Licensed Software currently enables the Licensee to comply
and will enable the Licensee to comply with Federal laws.
d) As provided in the Exclusions section of these Support Terms and
Conditions, as a condition precedent to continued Support Services
and Product Updates, and as a condition precedent to any warranty of
the Licensed Software specifically stated in this Agreement, Licensee
agrees to promptly implement such modifications, updates and
enhancements to the Licensed Software (in the form of Product
Updates) and to Third Party Software Licensed From Third Party as OSI
shall require from time to time in its sole discretion.
3. TERM OF SUPPORT SERVICES
3.1 Support Services shall be provided for the duration of the End-User
Software License, unless terminated by either party as provided in
this Agreement.
PAGE 35
SUPPORT SERVICES TERMS AND CONDITIONS (ATTACHMENT #3)
<PAGE>
3.2 OSI may suspend or cancel Support Services if Licensee fails to make
payments of Annual Support Fees in accordance with Section 7.4 of the
Information Processing System Agreement entitled "Annual Support
Fees" other than payments being disputed in good faith, within ten
(10) days after Licensee receives notice on non-payment.
3.3 OSI may suspend or cancel Support Services if Licensee fails in a
reasonably prompt manner to implement such modifications, updates and
enhancements to the Licensed Software (in the form of Product
Updates) and to Third Party Software Licensed From Third Party as OSI
shall require from time to time in its sole discretion.
4. REMOTE SUPPORT SERVICE.
4.1 OSI intends to provide certain Support Services via a remote on-line
connection to Licensee's Designated Computer Hardware. Licensee
hereby agrees to assist OSI in the creation of such a remote on-line
connection as part of the Implementation of the Software and agrees
to maintain and allow OSI access to its Designated Computer Hardware
and the Software through such remote on-line connection.
5. RESPONSE, PROBLEM RESOLUTION STANDARDS AND ERROR CORRECTION
5.1 All reasonable efforts shall be made to resolve problems promptly.
Upon Licensee's notification to OSI of a problem, OSI will
investigate such problem promptly to determine the nature and origin
of such problem and upon completion of such investigation outline to
Licensee in a telephonic communication the procedures to be followed
in reaching resolution to such problem. OSI shall exercise
commercially reasonable efforts to correct promptly any Error or
non-conformance reported by Licensee in the OSI Proprietary Software.
OSI will provide support in accordance with the guidelines contained
in the OSI's Customer Support Procedures as modified and amended from
time to time, a copy of which has been provided to Licensee. OSI
represents and warrants that all Support services will be performed
by duly qualified personnel in a professional workmanlike manner and
to standards generally accepted in the industry.
6. EXCLUSIONS
6.1 A condition precedent to OSI's obligation to perform Support Services
shall be that the Software problems shall not be solely the result
of:
a) Licensee's willful abuse or willful misapplication of the
Software,
b) Use of the Software other than as specified in the Documentation,
c) Use of the Software in conjunction with hardware identified by OSI
as incompatible with the Software,
d) Licensee's failure to promptly implement such modifications,
updates and enhancements to the Licensed Software (in the form of
Product Updates) and to Third Party Software Licensed From Third
Party as OSI shall require from time to
PAGE 36
SUPPORT SERVICES TERMS AND CONDITIONS (ATTACHMENT #4)
<PAGE>
time in its sole discretion, or
e) Other causes beyond the reasonable control of OSI.
6.2 OSI shall have no obligation to:
a) Support altered, damaged or modified Licensed Software (unless
such modifications are consented to in writing by OSI or otherwise
authorized, permitted or provided for under the Documentation,
Specifications or this Agreement) or any portion of the Licensed
Software incorporated with or into other software;
b) Support Licensed Software that is not the then current release or
immediately Previous Sequential Release.
6.3 Upon Licensee's request, OSI shall provide Support Services for the
Licensed Software which has malfunctioned as a result of any of the
causes described in this Section 6 at its then current and standard
rates for material and labor.
6.4 Support Services do not include physical installation of Product
Updates.
6.5 OSI shall have no obligation to provide support after termination of
the License granted hereunder, for any reason.
6.6 For Third Party Software that is not directly supported by OSI, it is
the responsibility of Licensee to register this software with the
manufacturer and to acquire support and future releases and upgrades
of these products as may be required to be used in conjunction with
the Licensed Software.
ADDITIONAL ATTACHMENTS FOLLOW
PAGE 37
SUPPORT SERVICES TERMS AND CONDITIONS (ATTACHMENT #4)
<PAGE>
ANNUAL SUPPORT FEE SCHEDULE
(EFFECTIVE JANUARY 1, 2000)
Support Services for the Licensed Software shall be provided as specified in the
Support Services Terms and Conditions Attachment for the annual support services
fees (the "Annual Support Fee") for such services, to be calculated on the basis
of the Licensee's then current asset and actual account size, the then current
License Fee Schedule for the Licensed Software and the then current Annual
Support Fee Rate.
2000 ANNUAL SUPPORT FEE RATES
LICENSED SOFTWARE
Twenty Percent (20%) of applicable License Fee as determined above
except that for a period beginning on the date of Delivery of the
Licensed Software and continuing until the second anniversary of the
Live Production Date, the annual support fee rate shall be eighteen
percent (18%) of the OSI Proprietary Base System as shown on the
Initial Product Order
PAGE 38
SUPPORT SERVICES TERMS AND CONDITIONS (ATTACHMENT #4)
<PAGE>
IMPLEMENTATION TERMS AND CONDITIONS
This Implementation Terms and Conditions (Attachment #5 to this Agreement)
relates to and is incorporated into the Information System Processing Agreement
bearing the number set out in the heading to this page. Capitalized terms not
defined herein have the same meaning as defined elsewhere in this Agreement.
1. IMPLEMENTATION
Licensee has requested that OSI provide certain implementation services and
processes (collectively "Implementation"). These services and processes need to
occur in order for the Licensed Software which the Licensee has ordered (as
indicated on the Initial Product Order) to be properly installed and operated.
a) OSI and Licensee shall each make qualified representatives available
to meet and to review required Implementation tasks, set dates for
such tasks, and establish a project plan (the "Installation Project
Plan") mutually agreeable to both parties in accordance with OSI's
then current guidelines for installation and implementation of the
Licensed Software (the "Initial Review");
b) OSI shall, based upon information provided by Licensee to OSI,
provide to Licensee an initial equipment requirements specification
applicable to Licensee's information processing system requirements
as have been identified by Licensee to OSI, and Licensee shall select
hardware and network installation providers ("Licensee's
Consultants") who are qualified to design and install the requisite
equipment and network meeting the equipment requirements
specification. Licensee shall submit the qualifications statements
and resumes of Licensee's Consultants to OSI for its review and
approval. OSI's review and approval of the qualification statements
and resumes shall not constitute an endorsement by OSI of Licensee's
Consultants, nor shall such review and approval make OSI responsible
in any manner for the performance of Licensee's Consultants, but is
merely intended to allow OSI to give Licensee the benefit of OSI's
experience in reviewing the qualifications of consultants in the
hardware and network business. After selection of License's
Consultants by Licensee, and their review and approval by OSI, OSI
shall review with Licensee and Licensee's Consultants the necessary
preparations for the Licensee's business, technical, security and
equipment requirements for its information processing system;
c) Licensee's Consultants shall perform a survey of Licensee's business,
technical, security and equipment requirements for its information
processing system, per OSI's recommended equipment configuration,
(the "On-Site Survey"), and shall prepare a report to Licensee as to
the actions which Licensee must take to make the necessary
preparations for its bank information processing system, including
but not limited to, reporting as to the specifications for the
hardware, network and software required by Licensee (the "Report");
d) Licensee shall submit the Report to OSI for its review and approval.
Licensee agrees and
PAGE 39
IMPLEMENTATION TERMS AND CONDITIONS (ATTACHMENT #5)
<PAGE>
acknowledges that OSI's review and approval of the Report is a
necessary and indispensable part of the Implementation process. OSI's
review and approval of the Report shall not constitute a warranty or
guarantee by OSI that if Licensee's Consultants, perform in
accordance with the Report that additional work or expense will not
be required, nor shall such review and approval make OSI responsible
in any manner for results of the performance of the work specified in
the Report, but is merely intended to allow OSI to give Licensee the
benefit of OSI's experience in the Implementation process.
e) If applicable, Licensee shall obtain from its current data processing
provider the necessary information in such media and at such time as
OSI requests.
f) OSI shall provide Licensee with the "Installation Project Plan"
within thirty (30) days after the Effective Date of this Agreement to
Licensee for its review and approval. Licensee agrees that it shall
assign the requisite personnel resources to the task identified in
the Installation Project Plan as assigned to Licensee to ensure that
the Live Production Date can be met.
g) Licensee shall cause Licensee's Consultants to duly install and
configure and make fully operational the Designated Computer Hardware
and applicable Third Party Software Licensed From Third Party
Software Vendors and Third Party Software Licensed From OSI in
accordance with the requirements of the Report no later than the
Scheduled Equipment Date specified in the Installation Project Plan
(the "Hardware Installation"). The OSI prescribed software version
number and/or release date of each product is the only release to be
used with the Licensed Software.
h) Licensee shall cause Licensee's Consultants to duly install all
required network components of the Designated Computer Hardware and
applicable Third Party Software Licensed From Third Party Vendors and
applicable Third Party Software Licensed From OSI including printer
drivers for each validly licensed workstation in accordance with the
requirements of the Report no later than the Scheduled Equipment Date
specified in the Installation Project Plan (the "Network
Installation");
i) If applicable, Licensee shall obtain from its current data processing
provider the necessary information including accurate documentation
in such media as OSI requests to permit OSI to perform the
Conversion.
j) If applicable, OSI shall perform the conversion programming services
required to convert Licensee's existing core data to support the
information processing requirements of the Licensed Software
("Conversion") per the scheduled conversion dates specified in the
Installation Project Plan. EXCEPT FOR THE HISTORY THAT IS CONVERTED
AS A NORMAL PART OF THE CONVERSION PROCESS, IN NO EVENT SHALL OSI
CONVERT ACCOUNT OR TRANSACTION HISTORY, OR PERFORM CIF SCRUBBING
ACTIVITIES.
k) OSI shall provide personnel to train Licensee's designated personnel
in the use of the Licensed Software, as specified in and subject to
the terms and conditions of the Training Schedule.
PAGE 40
IMPLEMENTATION TERMS AND CONDITIONS (ATTACHMENT #5)
<PAGE>
2. IMPLEMENTATION SERVICES
2.1 Licensee shall be solely responsible for Equipment, Network and Third
Party Software Licensed From Third Party Providers. As part of the
Installation, Licensee shall acquire such additional hardware,
network components and systems software as mutually agreed to and as
indicated in a revised Initial Product Order, if any, following the
On-Site Survey. Licensee shall exercise commercially reasonable
efforts to timely complete said Installations on or before the
respective scheduled date specified on the Initial Product Order.
2.2 OSI shall exercise commercially reasonable efforts to complete the
Licensed Software Installation on or before the Scheduled Live
Production Date specified in the Initial Product Order. OSI's
completion of the Licensed Software Installation by the Scheduled
Live Production Date, is conditioned upon the Licensee completing
those Implementation tasks not identified as OSI's Implementation
Services and, therefore, identified as responsibilities of the
Licensee, including without limitation, Equipment Installation and
Network Installation. All Licensee and OSI tasks will be per the
Installation Project Plan, which OSI will prepare, and upon which
Licensee and OSI will mutually agree, and upon Licensee's acceptance
will be the schedule of tasks and responsibilities necessary to
achieve live production by the Scheduled Live Production Date.
3. FEES AND PAYMENT
3.1 Licensee shall pay OSI the Implementation Service Fee specified in
the Initial Product Order in accordance with paragraph 7.5
Implementation Fees Information Processing System Agreement..
3.2 If, as a result of the On-Site Survey and the Report, Licensee
determines that it desires OSI to perform additional services not
included in the Installation Project Plan, such additional services
shall be documented in an amended Installation Project Plan. In the
event that it is necessary for OSI to perform additional services
pursuant to an amended Installation Project Plan, or additionally as
a result of Licensee or Licensee's Consultant failing to timely
perform Licensee identified tasks in the Installation Project Plan
with the result that OSI is required to perform additional services
beyond those which OSI customarily and ordinarily performs in the
Implementation process for clients similarly situated as Licensee,
OSI and Licensee shall enter into good faith negotiations in order to
determine the amount of additional days of Implementation Services
that will be required to complete Implementation (the "Additional
Implementation Service Days") and the rate for such days. The
Additional Implementation Service Days and applicable rates agreed
upon shall be documented by execution of an OSI Subsequent
Product/Service Order Form. Licensee shall pay for such Additional
Implementation Service Days at such rates as are evidenced in the OSI
Subsequent Product/Service Order Form.
PAGE 41
IMPLEMENTATION TERMS AND CONDITIONS (ATTACHMENT #5)
<PAGE>
4. TERM AND TERMINATION
4.1 Implementation Services shall be provided until completion of
Implementation as contemplated hereunder.
4.2 Licensee may terminate the Implementation Services at any time for
any reason.
In the event of termination of the License by Licensee for any reason
other than a material breach of the Agreement by OSI with the
opportunity to cure within the notice period required by this
Agreement, Licensee shall pay to OSI the full Implementation Fee, the
full Initial License Fee, the full Training Fee, and any other
undisputed amounts, or disputed amounts that have been resolved in
OSI's favor through the dispute resolution process provided for in
Section 6 of the Information Processing System Agreement, that have
accrued and are payable by Licensee pursuant to the terms of this
Agreement.
5. EXCLUSIONS
OSI shall have no obligation to conduct Implementation Services in relation to
any software other than that specified in a Product Order and shall only be
obligated to conduct Licensed Software Installation, Pre-Conversion, if
applicable, Conversion, if applicable, and Training Services once Licensee has
completed Equipment and Network Installations in accordance with the terms and
conditions of this Agreement.
6. LIMITATION OF LIABILITY
6.1 OSI REPRESENTS AND WARRANTS THAT ALL IMPLEMENTATION SERVICES WILL BE
PERFORMED BY DULY QUALIFIED PERSONNEL IN A PROFESSIONAL WORKMAN-LIKE
MANNER AND TO STANDARDS GENERALLY ACCEPTED IN THE INDUSTRY.
6.2 THESE TERMS AND CONDITIONS CONSTITUTE A SERVICE CONTRACT AND NOT A
PRODUCT WARRANTY. THE SOFTWARE AND ALL MATERIALS RELATED TO THE
LICENSED SOFTWARE ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH
IN THE INFORMATION PROCESSING SYSTEM AGREEMENT.
6.3 THE PROVISIONS OF THIS SECTION 6 SHALL SURVIVE TERMINATION OR
EXPIRATION OF IMPLEMENTATION SERVICES AND/OR THIS AGREEMENT FOR ANY
REASON WHATSOEVER.
ADDITIONAL ATTACHMENTS FOLLOW
PAGE 42
IMPLEMENTATION TERMS AND CONDITIONS (ATTACHMENT #5)
<PAGE>
TRAINING SCHEDULE
This Training Schedule (Attachment #6 to this Agreement) relates to and is
incorporated into the Information System Processing Agreement bearing the number
set out in the heading to this page. Capitalized terms not defined herein have
the same meaning as defined elsewhere in this Agreement. Training on the
Licensed Software shall be provided by OSI at OSI's facility to individuals
designated by the Licensee on a "Train-the-Trainer" basis, according to the
following plan. OSI recognizes that the training needs of individuals will vary
and are dependent upon different skill levels. Training shall be performed at
OSI's facility in classes or settings which include other party's employees and
will not be "private" to Licensee. Some aspects of the training schedule will be
basic to some employees while necessary for others. The schedule shall be as
follows:
TCBS TRAINING
Training on the OSI Proprietary Software shall be provided by OSI to individuals
designated by the Licensee on a "Training the Trainer" basis except for
audiences as stated otherwise. The prerequisite training requirement of basic PC
(Personal Computer) navigation skills and basic Microsoft Windows functionality
is a responsibility of the Licensee. TCBS Training is conducted at OSI,
Glastonbury, CT; exceptions to contract training allocations are defined below
following the course descriptions.
<TABLE>
<CAPTION>
COURSES LENGTH OF TOTAL STUDENT DAYS PER
COURSE CONTRACT
<S> <C> <C> <C> <C>
SM MD LG
PRODUCT MANAGER TRAINING/PRODUCT SET-UP WORKSHOP 5 day 10 15 20
Combined lecture and hands on training. Audience should have full knowledge
of their current products and be able to make business level decisions
while setting up their products on-line.
Two part training:
- A. Major/Minor product concept combined with specific Deposit/loan
Product training; and
- B hands-on workshop to set up the bank's current products on-line.
</TABLE>
PAGE 43
TRAINING SCHEDULE (ATTACHMENT #6)
<PAGE>
<TABLE>
<CAPTION>
COURSES LENGTH OF TOTAL STUDENT DAYS PER
COURSE CONTRACT
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
SM MD LG
------------------------------------------------------------------------------------------------------------------------
DEPOSIT TRAINING 5 days 5 5 10
Hands on system training restricted to TRAIN THE TRAINER audience.
Training is TCBS system functionality; training is NOT tailored to
Licensee's specific products, business processes or procedures.
- conduct common monetary transaction processing.
- Teller administrative functions; account inquiries; off line
processing; loan monetary transactions.
- CSR functions; customer and deposit account opening and
maintenance, account and miscellaneous inquiries.
- Branch operations functions; exception item processing; cashbox
management; and printer management.
------------------------------------------------------------------------------------------------------------------------
LOAN TRAINING 8 days 8 8 16
Hands on system training restricted to TRAIN THE TRAINER audience.
Training is TCBS system functionality; training is NOT tailored to
Licensee's specific products, business processes or procedures.
- loan account opening and maintenance; establish persons and
organizations.
- process loan monetary transactions.
- process loan escrow functions; creating/maintaining property
records, tax and insurance information; escrow analysis and invoices.
- manage external loan interfaces, batch loan payment coupon printing.
- establish loan investor accounts and manage the related activities.
------------------------------------------------------------------------------------------------------------------------
OPERATIONS TRAINING/ WORKSHOP 5 days 5 10 10
Hands on system training for TRAIN THE TRAINER audience. Training is TCBS
system functionality; training is NOT tailored to Licensee's specific
products, business processes or procedures.
- Perform general bank, branch, and department level operations
system functions.
- Develop/maintain system authorization and security structure.
------------------------------------------------------------------------------------------------------------------------
</TABLE>
PAGE 44
TRAINING SCHEDULE (ATTACHMENT #6)
<PAGE>
<TABLE>
<S> <C>
- Manage the network operating and remote support systems.
------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------
COURSES LENGTH OF TOTAL STUDENT DAYS PER
COURSE CONTRACT
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
SM MD LG
------------------------------------------------------------------------------------------------------------------------
DATABASE TRAINING ( PRECONVERSION COURSE) 1 days 1 1 2
Hands on and demonstration style training for the database administrators
responsible for database activity and maintenance
- Start up, shut down, import and export a database.
- Complete backup and recovery; switch between archiving modes.
- Perform fragmentation of the database
------------------------------------------------------------------------------------------------------------------------
IRS REPORTING TRAINING 2 days 2 2 2
Hands on system training for bank employees responsible for processing tax
reporting and regulatory compliance duties.
- Extract and manage files related to the reporting process.
- Experiment with the reporting application.
------------------------------------------------------------------------------------------------------------------------
TOTAL TRAINING DAYS PER CONTRACT 31 41 62
------------------------------------------------------------------------------------------------------------------------
</TABLE>
ADDITIONAL ATTACHMENTS FOLLOW
PAGE 45
TRAINING SCHEDULE (ATTACHMENT #6)
<PAGE>
ESCROW TERMS AND CONDITIONS
This attachment relates to and is incorporated into the below-referenced
Agreement. Capitalized terms not defined herein have the same meaning as defined
elsewhere in this Agreement.
1. SOURCE CODE AGREEMENT
Upon execution of this Agreement, OSI agrees to immediately place and thereafter
maintain the Source Code (as hereinafter defined) from the most current release
of the Proprietary Software and the last release of the Proprietary Software
(collectively hereinafter referred to as the "Deposit Materials" in escrow with
an agent ( the "Escrow Agent") pursuant to an escrow agreement which OSI shall
provide to Licensee for review if requested by Licensee (the "Escrow
Agreement"). The Source Code shall be updated per each new release. In the event
(i) OSI ceases to do business in the normal course, (ii) is in default of it
obligations as set out in the Support Services Terms and Conditions, or (iii) in
the event of insolvency, bankruptcy, or assignment for the benefits of creditors
of OSI, OSI, OSI's trustee in bankruptcy, or a court of competent jurisdiction
shall instruct Escrow Agent to release a copy of the Deposit Materials to
Licensee so long as the License remains in full force and effect and Licensee
has not materially breached the terms thereof and failed to cure such breach
upon timely receipt of proper notice required thereunder. OSI agrees herein that
it will pay to Escrow Agent all copying and delivery fees in connection with
Escrow Agents'providing the Deposit Materials to Licensee in accordance with the
provisions of this Agreement . At Licensee's option, OSI further agrees that it
will enter into a three party agreement with Licensee and the Escrow Agent which
provides Licensee a greater level of a direct right of action to secure the
Deposit Materials provided that (I) the Escrow Agent continues to offer such an
agreement and (ii) the incremental fees charged by Escrow Agent for such three
party agreement shall be borne by Licensee.
2. LICENSE
In the event that Licensee obtains the Source Code or the Deposit Materials
pursuant to these Escrow Terms and Conditions, the Source Code and deposit
Materials shall be deemed to be licensed to the same extent as the Proprietary
Software is licensed to Licensee pursuant to the End User Software License,
except that:
a) Licensee shall use the Source Code and Deposit Materials solely to
maintain and support, and for these purposes to modify, update and
upgrade the Proprietary Software; and
b) Licensee shall have the right to make such copies of the Licensed
Software and Deposit Materials as are reasonably necessary for
Licensee's use of the Licensed Software and Documentation as
contemplated hereunder and for back up and archival purposes. In
exercising this right, Licensee shall reproduce and include the
copyright notice and any other notices that appear on the original
Licensed Software and Deposit Materials on any copies and any media
therefor.
PAGE 46
ESCROW TERMS AND CONDITIONS (ATTACHMENT #7)
<PAGE>
3. DEFINITIONS
For purposes of this Agreement, "Source Code" shall mean both machine readable
and human readable copies of the Proprietary Software consisting of instructions
to be executed upon a computer in the language used by its programmers (i.e.
prior to compilation or assembly) in a form in which the program logic of the
Proprietary Software is deducible by a human being, fully commented, and
including all available related flow diagrams and all other documentation and
manuals which would allow persons who are experienced computer programmers but
who are unfamiliar with the Proprietary Software to properly effect
modifications and support for the Proprietary Software.
ADDITIONAL ATTACHMENTS FOLLOW
PAGE 47
ESCROW TERMS AND CONDITIONS (ATTACHMENT #7)
<PAGE>
AMENDMENTS TO AGREEMENT
The following shall constitute Amendments to this Agreement, and except for the
following amendments this Agreement shall in all other respects be the sole
agreement of the parties unamended hereby.
1. The following are additional amendments to this Agreement.
a) For any prospect banks from the states of Tennessee, Kentucky and Indiana
where Licensee hosts a visit and demonstration of the OSI system and such banks
sign an Agreement to license and install the OSI system, the Licensee shall
receive a credit of $3,000 to be applied to fees for services under this
Agreement. For any prospect banks from the states of Tennessee, Kentucky and
Indiana where Licensee provides an introduction to OSI and hosts a visit and
demonstration of the OSI system and such banks sign an Agreement to license and
install the OSI system, the Licensee shall receive a credit of $5,000 to be
applied to fees for services under this Agreement. This program shall remain in
effect during the entire Initial Term of this Agreement.
b) OSI will provide annual audited financial statements and semi-annual
unaudited financial statements to Licensee.
c) OSI will honor the prices for all standard interfaces shown on the Initial
Product Order pending resolution of those required by Licensee. d) Upon receipt
of a charter by Pinnacle National Bank, the License and this Agreement shall be
assigned by Pinnacle Financial Partners Inc. to Pinnacle National Bank.
Licensee: PINNACLE FINANCIAL PARTNERS INC.
Signature: /s/ Hugh M. Queener Date: June 27, 2000
----------------------------------------------- ----------------
Name: Hugh M. Queener Title: Chief Administrative Officer
--------------------------------------- ----------------------------
OPEN SOLUTIONS INC.
Signature: /s/ John L. Person Date: July 12, 2000
------------------------------------------------- -------------
Name : JOHN L. PERSON Title: PRESIDENT
---------------------------------------- ----------------------------
PAGE 48
AMENDMENTS TO AGREEMENT (ATTACHMENT #8)
<PAGE>
ATTACHMENTS FOLLOW
PAGE 49
AMENDMENTS TO AGREEMENT (ATTACHMENT #8)
