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INFORMATION TECHNOLOGY INC.
SOFTWARE LICENSE AGREEMENT
Agreement made between Information Technology, Inc. (the Vendor"), and the
"Customer" identified below.
1. LICENSED SOFTWARE
1.1 LICENSE. Vendor grants to Customer and Customer accepts from Vendor a
nonexclusive and nontransferable license to use the software identified in
Appendix A (the "Software") under the terms set forth in this agreement.
1.2 PROPRIETARY NATURE OF SOFTWARE AND TITLE. The Software and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Software (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
propriety information and trade secrets, whether or not any portion thereof is
or may be validly copyrighted or patented, acknowledged to be protected by civil
and criminal law, and acknowledged to be of great value to Vendor. Except as
specifically licensed under this agreement, title and all ownership rights to
the Software and the Documentation remain with Vendor. Customer shall retain or
affix such evidences of ownership and proprietary notices as Vendor may
reasonably request. This paragraph shall survive the term or termination of
this agreement.
1.3 USE OF SOFTWARE. The Software may be used only for, by and on behalf
of Customer and only in connection with Customer's business operations. This
license is granted only for use at a single location identified in Appendix A
and upon a single computer system (CPU) identified in Appendix A and may not be
used upon any other computer or at any other location except as provided under
Paragraph 1.4.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to use the
Software at the location identified in Appendix A due to an emergency, or to
test emergency procedures, Vendor grants to Customer the right to use the
Software at a location other than the location defined in Appendix A. Any such
use shall be subject to all other restrictions of this agreement and shall
continue only so long as the condition giving rise to such use continues. Prior
to commencing such use, if possible, and in any event within forty eight (48)
hours of such use, Customer shall give Vendor written notice of the
circumstance, location and the expected length of such use. Failure to give
notice shall nullify Customer's right of emergency use, as herein granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to the
Software may not be assigned, licensed, sublicensed, pledged, or otherwise
transferred voluntarily, by operation of law or otherwise without Vendor's prior
written consent, and any such prohibited assignment shall be null and void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Software granted
under this agreement, Customer shall pay to Vendor the license fee specified in
Appendix A. Such license fee does not include, except as expressly provided in
this agreement or Appendix A hereto, installation or maintenance of the
Software, data base conversion, media, transportation charges, or taxes, all of
which costs and taxes shall be the obligation of Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix A shall be
payable in the following manner:
(A) A percentage of the license fee, as specified in Appendix A,
upon execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon delivery of
the Software by Vendor to Customer.
Invoices respecting the license fee shall be rendered in accordance with the
above payment schedule and are payable to Vendor at Vendor's address set forth
below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder, Customer
shall pay all taxes (including, without limitation, sales, use, privilege, ad
valorem or excise taxes) and customs duties paid or payable, however designated,
levied or based on amounts payable to Vendor hereunder or on Customer's use or
possession of the Software under this agreement, but exclusive of federal, state
and local taxes based on Vendor's net income. Customer shall not deduct from
payments to Vendor any amounts paid or payable to third parties for customs
duties or taxes, however designated.
2.4 CURRENCY. The purchase price and any other charges arising under this
agreement shall be invoiced and be payable in U.S. Dollars.
2.5 SECURITY. Vendor reserves and Customer grants to Vendor a security
interest in the rights of Customer for use of the Software and in the
Documentation as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the license fee set forth in
Appendix A. A copy of this agreement may be filed in appropriate filing offices
at any time after signature by Customer as a financing statement or Vendor may
require and Customer shall execute a separate financing statement for purposes
of perfecting Vendor's security interest granted pursuant to the provisions of
this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Software and Customer shall accept
delivery of the Software at Customer's address set forth below. Unless delayed,
as hereinafter provided for, delivery shall be completed within one (1) year of
the date accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of delivery,
Vendor shall not be obligated to effect delivery of the Software except upon
thirty (30) days written notice by Customer to Vendor. If delay in delivery is
due to any cause beyond the control of Vendor, the date upon which delivery is
to be completed shall be extended by the number of days of such delay.
3.3 TRAINING. Classes in the operation of the Software are available at
the offices of Vendor on a regularly scheduled basis at Vendor's normal rates
with respect thereto. All travel, meal and lodging expenses of
Customer in connection with such training shall be borne by Customer. On-site
training or assistance will be available solely at Vendor's discretion and will
be charged to Customer at Vendor's normal rates together with reasonable
expenses for travel, meals, lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable assistance
and cooperation to Vendor in Preparation of the Software and the delivery or
installation thereof. Such assistance and cooperation shall include, as
appropriate, reasonable access to Customer's facility and to Customer's records,
as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Software will be
delivered to Customer prior to or contemporaneously with the delivery of the
Software.
3.6 RISK OF LOSS. If the Software or the Documentation is lost or
damaged, in whole or in part, during shipment, Vendor will replace said Software
or Documentation at no additional charge to Customer. Upon delivery in good
condition of the Software and the Documentation, Customer shall be responsible
therefor and bear the risk of loss for said Software Documentation.
3.7 CONVERSION ASSISTANCE. Vendor may, at its sole discretion, assist
Customer in the conversion of Customer's files from a computer processor or
in-house computer system at Vendor's normal charges for such assistance.
Expenses, including but not limited to computer time, travel, meals, lodging and
local transportation incurred in connection therewith, shall be borne by
Customer. In no event shall Vendor be liable to Customer for loss of profits,
consequential, incidental, indirect or special damages arising from Vendor's
efforts to assist in the conversion of Customer's files. Vendor agrees to treat
Customer's confidential business with the same security as it would its own.
3.8 OPERATION. Customer acknowledges and agrees that it is exclusively
responsible for the operation, supervision, management and control of the
Software, including but not limited to, providing adequate training for its
personnel, instituting appropriate security procedures, and implementing
reasonable procedures to examine and verify all output before use. Vendor shall
have no responsibility or liability for Customer's selection or use of the
Software or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing integrity
and proper operation of the Software, Customer agrees to implement, in the
manner instructed by Vendor, each error correction and each enhancement and
improvement provided to Customer by Vendor. Customer's failure to do so shall
relieve Vendor of any responsibility or liability whatsoever for any failure or
malfunction of the Software as modified by a subsequent correction or
improvement, but in no such event shall Customer be relieved of the
responsibility for payment of fees and charges otherwise properly invoiced
during the term hereof. If requested by Vendor, Customer agrees to provide
written documentation and details to Vendor to substantiate problems and to
assist Vendor in the identification and detection of problems, errors and
malfunctions; and Customer agrees that Vendor shall have no obligation or
liability for said problems until it has received such documentation and details
from Customer.
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps necessary to
ensure that neither the Software nor the Documentation, nor any portion thereof,
on magnetic tape or disk or in any other form, is made available or disclosed by
Customer or any of its agents or employees to any other person, firm or
corporation. Customer may disclose relevant aspects of the Software and
Documentation to its employees and agents to the extent such disclosure is
reasonably necessary to Customer's use of the Software, provided, however,
Customer agrees that it will cause all persons permitted such access to the
Software and the Documentation to observe and perform the foregoing
non-disclosure covenant, and that it will advise Vendor of the procedures
employed for this purpose. Customer shall hold Vendor harmless against any
loss, cost, expense, claim or liability, including reasonable attorney's fees,
resulting from Customer's breach of this non-disclosure obligation. This
paragraph shall survive the term or termination of this agreement.
4.2 COPIES. Customer agrees that while the Software and the Documentation
are in its custody and possession, it will not(a) copy or duplicate or permit
anyone else to copy or duplicate any of the Software, Documentation or
information furnished by Vendor, or (b) create or attempt to create, or permit
others to create or attempt to create, by reverse engineering or otherwise, the
source programs or any part thereof from the object program for the Software,
the Documentation or other information made available under this agreement or
otherwise, (whether oral, written, tangible or in-tangible). Notwithstanding
the foregoing, Customer may make and retain two (2) copies of the Software,
including all enhancements and changes hereto, only for use in emergencies or to
test emergency procedures and may copy for its own use and at its own expense
the Documentation, but shall advise Vendor of the specific item copied, the
number of copies made and their distribution. The original and any copies in
whole or in part of the Software or Documentation which are made pursuant to
this provision shall be the exclusive property of Vendor and shall be fully
subject to the provisions of this agreement. Customer agrees to retain or place
Vendor's proprietary notice on any copies or partial copies made pursuant to
this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately of
the unauthorized possession, use, or knowledge of the Software, Documentation
or any information made available to Customer pursuant to this agreement, by any
person or organization not authorized by this agreement to have such possession,
use or knowledge. Customer will, thereafter, fully cooperate with Vendor in the
protection and redress of Vendor's proprietary rights. Customer's compliance
with this paragraph shall not, however, be construed in any way as a waiver of
Vendor's rights against Customer for Customer's negligent of intentional harm to
Vendor's proprietary rights, or for breach of Vendor's contractual rights.
4.4 INSPECTION. To assist Vendor in the protection of its proprietary
rights, Customer shall permit representatives of Vendor to inspect the Software
and Documentation and their use, including inspection of any location in which
they are being used or kept at all reasonable times.
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense, sell or otherwise convey or to disclose the Software or
Documentation, in any manner contrary to the terms of this agreement or in the
derogation of Vendor's proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition to
any other remedies available to it, the right to injunctive relief enjoining
such
actions. Customer hereby acknowledging that other remedies are inadequate.
4.6 ACCESS TO SOURCE CODE. Vendor has deposited the Software in source
code form and Documentation sufficient to facilitate maintenance, modification
or correction of the Software with the custodial agent named in Appendix A.
Vendor reserves the right to change said custodial agent at any time with
written notification to Customer within sixty (60) days of said change. If
Vendor, its successors or assigns shall cease to conduct business for any period
in excess of thirty (30) days, Customer shall have the right to obtain, for its
own and sole use only, a single copy of the then current version of the source
code form of the Software supplied under this agreement, and a single copy of
the Documentation associated therewith, upon payment to the person in control of
the said source code form of the Software of the reasonable cost of making each
copy. The source code form of the Software supplied to Customer under this
paragraph shall be subject to each and every restriction on use set forth in
this agreement. Customer acknowledges that the source code form of the Software
and the associated Documentation are extraordinarily valuable proprietary
property of Vendor and will be guarded against unauthorized use or disclosure
with great care.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 SOFTWARE WARRANTY. Vendor warrants that at delivery of the Software,
the Software will perform in accordance with the then current Documentation
provided Customer, and further warrants that it has the right to authorize the
use of the Software under this agreement. Vendor's obligation and liability
under this paragraph shall, however, be limited to the replacement and
correction of the Software so that it will so perform, or to obtaining any
authorization necessary to make effective the grant of license to Customer of
the use of the Software.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend Customer
from any claim or any suit based on any claim that the use of the Software by
Customer under this agreement infringes on any patent, copyright, trademark, or
other proprietary right of any third party, provided that Customer gives Vendor
prompt and written notice of any such claim or suit and permits Vendor to
control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL
OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO , THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by Vendor
under paragraph 5.5 shall be subject to extension for successive one year
warranty periods commencing on the date of the delivery of the Software. Each
one year extension (the "Warranty Period") shall be deemed to automatically
occur unless notice is given by either Customer or Vendor of an election not to
so extend, such notice to be given on or prior to the sixtieth (60th) day
preceding the Warranty Period. Any such extension shall in no event be
effective unless Customer shall have paid to Vendor on or prior to the beginning
of the Warranty Period its then current annual maintenance fee.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with all
enhancements and changes to the Software designed or developed by Vendor and
released to its other customers during the Warranty Period. Any change or
enhancement to the Software, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license fee
of any enhancements or corrections developed by Customer. Vendor reserves the
right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, types of hardware supported, throughput,
and other related programming and documentation improvements required to
maintain the Software current. As part of these services, Vendor will provide
Customer the changes with written instructions concerning implementation. It is
understood and agreed that Vendor provision of improvements and enhancements
under this paragraph does not include providing to Customer a new set of
software which may result from rewriting the Software. Vendor alone shall
determine whether the work product of Vendor constitutes new software as a
result of a complete rewrite (which is not provided to Customer hereunder) or an
improvement or enhancement of the Software (which will be provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in paragraphs 5.1
and 5.2 and Customer's rights under paragraph 5.5 shall immediately terminate if
the Software is revised, changed, enhanced, modified or maintained by any one
other that Vendor without the prior specific direction or written approval of
Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that Vendor's
responsibilities in the event of its breach of the warranties contained in
paragraphs 5.1 and 5.2 are as set forth in said paragraphs. Vendor's liability
for damages, including but not limited to liability for patent or copyright
infringement, regardless of the form of action, shall not exceed the license fee
set forth in Appendix A to this agreement and shall arise only if the remedies
provided in paragraphs 5.1 and 5.2 are not fulfilled by Vendor. Customer
further agrees that Vendor will not be liable for any lost profits, or for any
claim or demand against Customer by any other party, except a claim for patent
or copyright infringement as provided herein. IN NO EVENT WILL VENDOR BE LIABLE
FOR CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. No action, regardless of form, arising out of this agreement, may
be brought by either party more than one (1) year after the cause of action has
accrued, except that an action for non-payment may be brought within one (1)
year after the date of last payment. No action by Vendor for wrongful
disclosure or use of the Software or Documentation shall be deemed to have
accrued until Vendor receives actual notice of such wrongful disclosure or use.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement in the event of a
default by Customer unless Customer shall have cured the event of default, as
hereinafter defined, within twenty (20) days after notice of such event of
default given by Vendor to Customer. Upon any termination of this agreement,
Customer shall deliver to Vendor the Software, the Documentation and all copies
thereof and shall also warrant in writing that all copies have returned to
Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as any of the
following:
(A) Customer's failure to pay any amounts required to be paid to
Vendor under this agreement on a timely basis;
(B) Any attempt to assign, sell mortgage, sublease, sublicense or
otherwise convey or to disclose, except as herein expressly permitted, the
Software or the Documentation;
(C) Causing or permitting any encumbrance, of any nature whatsoever
to attach to Customer's interest in the Software in favor of any person or
entity other than Vendor'
(D) The entry of any order for relief under any provision of the
federal bankruptcy code in any bankruptcy proceedings initiated by or against
Customer; or
(E) Customer's breach of any of the terms of conditions of this
agreement.
6.3 DAMAGES. Upon the occurrence of an event of default without cure
within the period of time above-provided, all license or other fees payable to
Vendor under this agreement shall without notice or demand by Vendor become
immediately due and payable as liquidated damages. This provision for
liquidated damages shall not be regarded as a waiver by Vendor of any other
rights to which it may be entitled in the event of Customer's default, but
rather, such remedy shall be an addition to any other remedy lawfully available
to Vendor.
VII. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference purposes only
and are not to be considered a part of this agreement.
7.2 FORCE MAJEURE. No party shall be liable for delay in performance
hereunder due to causes beyond its control, including but not limited to acts of
God, fires, strikes, delinquencies of suppliers, acts of war or intervention by
any governmental authority, and each party shall take steps to minimize any such
delay.
7.3 WAIVER. No waiver of any breach of any provision of this agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof and no waiver shall be effective unless made
in writing and signed by an authorized representative of the party to be charged
therewith.
7.4 SEVERABILITY. In the event that any provision of this agreement shall
be illegal or otherwise unenforceable, such provision shall be severed from this
agreement and the entire agreement shall not fail on account thereof, the
balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ
THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT TO
IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS OF THE
AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS, CONDITIONS,
WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING
TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER AGREE THAT THIS
AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY A PRIOR OR EXISTING
COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF TRADE OR CUSTOM, OR BY
ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO THIS AGREEMENT OR
OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR OTHER INSTRUMENT
COVERING THE SOFTWARE HEREIN SPECIFIED, IT IS UNDERSTOOD AND AGREED THAT SUCH
PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S INTERNAL USE AND PURPOSES
ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of Nebraska,
and shall be enforced in accordance with and governed by the laws of the State
of Nebraska.
7.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity, may
be instituted in and litigated in the state or federal courts of the State of
Nebraska. In accordance herewith, the parties hereto submit to the jurisdiction
of the courts of said state. Any party being not a resident of Nebraska at the
time of suit hereby appoints the Secretary of State of Nebraska as its agent for
receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall be
entitled to recover its costs and reasonable attorney's fees.
7.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative.
CUSTOMER: VENDOR:
BANK OF SANTA MARIA INFORMATION TECHNOLOGY, INC.
Signature: Signature Present Signature: Signature Present
Name: Cheryl Dunshee Name: Donald F. Dillon
Title: Senior Vice President Title: President
Address: 2739 Santa Maria Way Address: 1345 Old Cheney Road
Santa Maria, CA 93455 Lincoln, NE 68512
Date: 5-11-94 Date: May 12, 1994
APPENDIX A
DUE UPON EXECUTION: Thirty Percent (30%) LOCATION WHERE THE SOFTWARE PRODUCT(S)
(Under 50,000 accounts) WILL BE USED:
COMPUTER SYSTEM (CPU): A-11 Model E11 (A96) Bank of Santa Maria
2739 Santa Maria Way
Santa Maria, CA 93455
CUSTODIAL AGENT: West Gate Bank
1204 West O Street
Lincoln, NE 68528
PRODUCT(S) AND LICENSE FEE(S)
101-000 Central Information System
102-000 Demand Deposit Accounting System
103-000 Savings Accounting System
104-000 Certificate of Deposit Accounting System
105-000 Loan Accounting System
106-000 Item Entry System
151-000 General Ledger Accounting System
Package Price $81,000
102-103 "Express" Exception Item Processing Module 3,355
105-101 Automated Credit Reporting Module 4,027
107-000 On-Line Teller Terminal Module 6,414
107-124 TTM Interface To: B20 FSA Commercial Bank 1,638
108-101 Bulk Filing Module 6,711
152-001 Asset Liability Management System (Single Institution) 6,711
153-001 Bond Accounting System (Single Institution) 5,369
202-002 Diebold 960/9500 Controller Based Handler 2,458
203-001 ATM FIS Host Interface (Standard) 4,915
206-001 ATM PIN Encryption Interface - Atalla 2,458
211-000 ATM On-Line System 9,830
215-120 ATM Intercept Processing Network Interface 25,920
Deluxe Data Systems, Inc. Brown Deer, WI
221-000 Data Communication File Transfer Module 5,369
SUBTOTAL: $166,175
LESS: Prior System Credit (131,029)
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TOTAL: $ 35,146
(Graphics Logo)
INFORMATION TECHNOLOGY INC.
SOFTWARE LICENSE AGREEMENT
Agreement made between Information Technology, Inc. (the Vendor"), and the
"Customer" identified below.
1. LICENSED SOFTWARE
1.1 LICENSE. Vendor grants to Customer and Customer accepts from Vendor a
nonexclusive and nontransferable license to use the software identified in
Appendix A (the "Software") under the terms set forth in this agreement.
1.2 PROPRIETARY NATURE OF SOFTWARE AND TITLE. The Software and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Software (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
propriety information and trade secrets, whether or not any portion thereof is
or may be validly copyrighted or patented, acknowledged to be protected by civil
and criminal law, and acknowledged to be of great value to Vendor. Except as
specifically licensed under this agreement, title and all ownership rights to
the Software and the Documentation remain with Vendor. Customer shall retain or
affix such evidences of ownership and proprietary notices as Vendor may
reasonably request. This paragraph shall survive the term or termination of
this agreement.
1.3 USE OF SOFTWARE. The Software may be used only for, by and on behalf
of Customer and only in connection with Customer's business operations. This
license is granted only for use at a single location identified in Appendix A
and upon a single computer system (CPU) identified in Appendix A and may not be
used upon any other computer or at any other location except as provided under
Paragraph 1.4.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to use the
Software at the location identified in Appendix A due to an emergency, or to
test emergency procedures, Vendor grants to Customer the right to use the
Software at a location other than the location defined in Appendix A. Any such
use shall be subject to all other restrictions of this agreement and shall
continue only so long as the condition giving rise to such use continues. Prior
to commencing such use, if possible, and in any event within forty eight (48)
hours of such use, Customer shall give Vendor written notice of the
circumstance, location and the expected length of such use. Failure to give
notice shall nullify Customer's right of emergency use, as herein granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to the
Software may not be assigned, licensed, sublicensed, pledged, or otherwise
transferred voluntarily, by operation of law or otherwise without Vendor's prior
written consent, and any such prohibited assignment shall be null and void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Software granted
under this agreement, Customer shall pay to Vendor the license fee specified in
Appendix A. Such license fee does not include, except as expressly provided in
this agreement or Appendix A hereto, installation or maintenance of the
Software, data base conversion, media, transportation charges, or taxes, all of
which costs and taxes shall be the obligation of Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix A shall be
payable in the following manner:
(A) A percentage of the license fee, as specified in
Appendix A, upon execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon
delivery of the Software by Vendor to Customer.
Invoices respecting the license fee shall be rendered in accordance with the
above payment schedule and are payable to Vendor at Vendor's address set forth
below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder, Customer
shall pay all taxes (including, without limitation, sales, use, privilege, ad
valorem or excise taxes) and customs duties paid or payable, however designated,
levied or based on amounts payable to Vendor hereunder or on Customer's use or
possession of the Software under this agreement, but exclusive of federal, state
and local taxes based on Vendor's net income. Customer shall not deduct from
payments to Vendor any amounts paid or payable to third parties for customs
duties or taxes, however designated.
2.4 CURRENCY. The purchase price and any other charges arising under this
agreement shall be invoiced and be payable in U.S. Dollars.
2.5 SECURITY. Vendor reserves and Customer grants to Vendor a security
interest in the rights of Customer for use of the Software and in the
Documentation as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the license fee set forth in
Appendix A. A copy of this agreement may be filed in appropriate filing offices
at any time after signature by Customer as a financing statement or Vendor may
require and Customer shall execute a separate financing statement for purposes
of perfecting Vendor's security interest granted pursuant to the provisions of
this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Software and Customer shall accept
delivery of the Software at Customer's address set forth below. Unless delayed,
as hereinafter provided for, delivery shall be completed within one (1) year of
the date accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of delivery,
Vendor shall not be obligated to effect delivery of the Software except upon
thirty (30) days written notice by Customer to Vendor. If delay in delivery is
due to any cause beyond the control of Vendor, the date upon which delivery is
to be completed shall be extended by the number of days of such delay.
3.3 TRAINING. Classes in the operation of the Software are available at
the offices of Vendor on a regularly scheduled basis at Vendor's normal rates
with respect thereto. All travel, meal and lodging expenses of Customer in
connection with such training shall be borne by
Customer. On-site training or assistance will be available solely at Vendor's
discretion and will be charged to Customer at Vendor's normal rates together
with reasonable expenses for travel, meals, lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable assistance
and cooperation to Vendor in Preparation of the Software and the delivery or
installation thereof. Such assistance and cooperation shall include, as
appropriate, reasonable access to Customer's facility and to Customer's records,
as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Software will be
delivered to Customer prior to or contemporaneously with the delivery of the
Software.
3.6 RISK OF LOSS. If the Software or the Documentation is lost or
damaged, in whole or in part, during shipment, Vendor will replace said Software
or Documentation at no additional charge to Customer. Upon delivery in good
condition of the Software and the Documentation, Customer shall be responsible
therefor and bear the risk of loss for said Software Documentation.
3.7 CONVERSION ASSISTANCE. Vendor may, at its sole discretion, assist
Customer in the conversion of Customer's files from a computer processor or
in-house computer system at Vendor's normal charges for such assistance.
Expenses, including but not limited to computer time, travel, meals, lodging and
local transportation incurred in connection therewith, shall be borne by
Customer. In no event shall Vendor be liable to Customer for loss of profits,
consequential, incidental, indirect or special damages arising from Vendor's
efforts to assist in the conversion of Customer's files. Vendor agrees to treat
Customer's confidential business with the same security as it would its own.
3.8 OPERATION. Customer acknowledges and agrees that it is exclusively
responsible for the operation, supervision, management and control of the
Software, including but not limited to, providing adequate training for its
personnel, instituting appropriate security procedures, and implementing
reasonable procedures to examine and verify all output before use. Vendor shall
have no responsibility or liability for Customer's selection or use of the
Software or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing integrity
and proper operation of the Software, Customer agrees to implement, in the
manner instructed by Vendor, each error correction and each enhancement and
improvement provided to Customer by Vendor. Customer's failure to do so shall
relieve Vendor of any responsibility or liability whatsoever for any failure or
malfunction of the Software as modified by a subsequent correction or
improvement, but in no such event shall Customer be relieved of the
responsibility for payment of fees and charges otherwise properly invoiced
during the term hereof. If requested by Vendor, Customer agrees to provide
written documentation and details to Vendor to substantiate problems and to
assist Vendor in the identification and detection of problems, errors and
malfunctions; and Customer agrees that Vendor shall have no obligation or
liability for said problems until it has received such documentation and details
from Customer.
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps necessary to
ensure that neither the Software nor the Documentation, nor any portion thereof,
on magnetic tape or disk or in any other form, is made available or disclosed by
Customer or any of its agents or employees to any other person, firm or
corporation. Customer may disclose relevant aspects of the Software and
Documentation to its employees and agents to the extent such disclosure is
reasonably necessary to Customer's use of the Software, provided, however,
Customer agrees that it will cause all persons permitted such access to the
Software and the Documentation to observe and perform the foregoing
non-disclosure covenant, and that it will advise Vendor of the procedures
employed for this purpose. Customer shall hold Vendor harmless against any
loss, cost, expense, claim or liability, including reasonable attorney's fees,
resulting from Customer's breach of this non-disclosure obligation. This
paragraph shall survive the term or termination of this agreement.
4.2 COPIES. Customer agrees that while the Software and the Documentation
are in its custody and possession, it will not(a) copy or duplicate or permit
anyone else to copy or duplicate any of the Software, Documentation or
information furnished by Vendor, or (b) create or attempt to create, or permit
others to create or attempt to create, by reverse engineering or otherwise, the
source programs or any part thereof from the object program for the Software,
the Documentation or other information made available under this agreement or
otherwise, (whether oral, written, tangible or in-tangible). Notwithstanding
the foregoing, Customer may make and retain two (2) copies of the Software,
including all enhancements and changes hereto, only for use in emergencies or to
test emergency procedures and may copy for its own use and at its own expense
the Documentation, but shall advise Vendor of the specific item copied, the
number of copies made and their distribution. The original and any copies in
whole or in part of the Software or Documentation which are made pursuant to
this provision shall be the exclusive property of Vendor and shall be fully
subject to the provisions of this agreement. Customer agrees to retain or place
Vendor's proprietary notice on any copies or partial copies made pursuant to
this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately of
the unauthorized possession, use, or knowledge of the Software, Documentation
or any information made available to Customer pursuant to this agreement, by any
person or organization not authorized by this agreement to have such possession,
use or knowledge. Customer will, thereafter, fully cooperate with Vendor in the
protection and redress of Vendor's proprietary rights. Customer's compliance
with this paragraph shall not, however, be construed in any way as a waiver of
Vendor's rights against Customer for Customer's negligent of intentional harm to
Vendor's proprietary rights, or for breach of Vendor's contractual rights.
4.4 INSPECTION. To assist Vendor in the protection of its proprietary
rights, Customer shall permit representatives of Vendor to inspect the Software
and Documentation and their use, including inspection of any location in which
they are being used or kept at all reasonable times.
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense, sell or otherwise convey or to disclose the Software or
Documentation, in any manner contrary to the terms of this agreement or in the
derogation of Vendor's proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition to
any other remedies available to it, the right to injunctive relief enjoining
such actions. Customer hereby acknowledging that other remedies are inadequate.
4.6 ACCESS TO SOURCE CODE. Vendor has deposited the Software in source
code form and Documentation sufficient to facilitate maintenance, modification
or correction of the Software with the custodial agent named in Appendix A.
Vendor reserves the right to change said custodial agent at any time with
written notification to Customer within sixty (60) days of said change. If
Vendor, its successors or assigns shall cease to conduct business for any period
in excess of thirty (30) days, Customer shall have the right to obtain, for its
own and sole use only, a single copy of the then current version of the source
code form of the Software supplied under this agreement, and a single copy of
the Documentation associated therewith, upon payment to the person in control of
the said source code form of the Software of the reasonable cost of making each
copy. The source code form of the Software supplied to Customer under this
paragraph shall be subject to each and every restriction on use set forth in
this agreement. Customer acknowledges that the source code form of the Software
and the associated Documentation are extraordinarily valuable proprietary
property of Vendor and will be guarded against unauthorized use or disclosure
with great care.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 SOFTWARE WARRANTY. Vendor warrants that at delivery of the Software,
the Software will perform in accordance with the then current Documentation
provided Customer, and further warrants that it has the right to authorize the
use of the Software under this agreement. Vendor's obligation and liability
under this paragraph shall, however, be limited to the replacement and
correction of the Software so that it will so perform, or to obtaining any
authorization necessary to make effective the grant of license to Customer of
the use of the Software.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend Customer
from any claim or any suit based on any claim that the use of the Software by
Customer under this agreement infringes on any patent, copyright, trademark, or
other proprietary right of any third party, provided that Customer gives Vendor
prompt and written notice of any such claim or suit and permits Vendor to
control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL
OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO , THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by Vendor
under paragraph 5.5 shall be subject to extension for successive one year
warranty periods commencing on the date of the delivery of the Software. Each
one year extension (the "Warranty Period") shall be deemed to automatically
occur unless notice is given by either Customer or Vendor of an election not to
so extend, such notice to be given on or prior to the sixtieth (60th) day
preceding the Warranty Period. Any such extension shall in no event be
effective unless Customer shall have paid to Vendor on or prior to the beginning
of the Warranty Period its then current annual maintenance fee.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with all
enhancements and changes to the Software designed or developed by Vendor and
released to its other customers during the Warranty Period. Any change or
enhancement to the Software, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license fee
of any enhancements or corrections developed by Customer. Vendor reserves the
right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, types of hardware supported, throughput,
and other related programming and documentation improvements required to
maintain the Software current. As part of these services, Vendor will provide
Customer the changes with written instructions concerning implementation. It is
understood and agreed that Vendor provision of improvements and enhancements
under this paragraph does not include providing to Customer a new set of
software which may result from rewriting the Software. Vendor alone shall
determine whether the work product of Vendor constitutes new software as a
result of a complete rewrite (which is not provided to Customer hereunder) or an
improvement or enhancement of the Software (which will be provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in paragraphs 5.1
and 5.2 and Customer's rights under paragraph 5.5 shall immediately terminate if
the Software is revised, changed, enhanced, modified or maintained by any one
other that Vendor without the prior specific direction or written approval of
Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that Vendor's
responsibilities in the event of its breach of the warranties contained in
paragraphs 5.1 and 5.2 are as set forth in said paragraphs. Vendor's liability
for damages, including but not limited to liability for patent or copyright
infringement, regardless of the form of action, shall not exceed the license fee
set forth in Appendix A to this agreement and shall arise only if the remedies
provided in paragraphs 5.1 and 5.2 are not fulfilled by Vendor. Customer
further agrees that Vendor will not be liable for any lost profits, or for any
claim or demand against Customer by any other party, except a claim for patent
or copyright infringement as provided herein. IN NO EVENT WILL VENDOR BE LIABLE
FOR CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. No action, regardless of form, arising out of this agreement, may
be brought by either party more than one (1) year after the cause of action has
accrued, except that an action for non-payment may be brought within one (1)
year after the date of last payment. No action by Vendor for wrongful
disclosure or use of the Software or Documentation shall be deemed to have
accrued until Vendor receives actual notice of such wrongful disclosure or use.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement in the event of a
default by Customer unless Customer shall have cured the event of default, as
hereinafter defined, within twenty (20) days after notice of such event of
default given by Vendor to Customer. Upon
any termination of this agreement, Customer shall deliver to Vendor the
Software, the Documentation and all copies thereof and shall also warrant in
writing that all copies have returned to Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as any of the
following:
(A) Customer's failure to pay any amounts required to be paid to
Vendor under this agreement on a timely basis;
(B) Any attempt to assign, sell mortgage, sublease, sublicense or
otherwise convey or to disclose, except as herein expressly permitted, the
Software or the Documentation;
(C) Causing or permitting any encumbrance, of any nature whatsoever
to attach to Customer's interest in the Software in favor of any person or
entity other than Vendor'
(D) The entry of any order for relief under any provision of the
federal bankruptcy code in any bankruptcy proceedings initiated by or against
Customer; or
(E) Customer's breach of any of the terms of conditions of this
agreement.
6.3 DAMAGES. Upon the occurrence of an event of default without cure
within the period of time above-provided, all license or other fees payable to
Vendor under this agreement shall without notice or demand by Vendor become
immediately due and payable as liquidated damages. This provision for
liquidated damages shall not be regarded as a waiver by Vendor of any other
rights to which it may be entitled in the event of Customer's default, but
rather, such remedy shall be an addition to any other remedy lawfully available
to Vendor.
VII. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference purposes only
and are not to be considered a part of this agreement.
7.2 FORCE MAJEURE. No party shall be liable for delay in performance
hereunder due to causes beyond its control, including but not limited to acts of
God, fires, strikes, delinquencies of suppliers, acts of war or intervention by
any governmental authority, and each party shall take steps to minimize any such
delay.
7.3 WAIVER. No waiver of any breach of any provision of this agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof and no waiver shall be effective unless made
in writing and signed by an authorized representative of the party to be charged
therewith.
7.4 SEVERABILITY. In the event that any provision of this agreement shall
be illegal or otherwise unenforceable, such provision shall be severed from this
agreement and the entire agreement shall not fail on account thereof, the
balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ
THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT TO
IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS OF THE
AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS, CONDITIONS,
WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING
TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER AGREE THAT THIS
AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY A PRIOR OR EXISTING
COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF TRADE OR CUSTOM, OR BY
ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO THIS AGREEMENT OR
OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR OTHER INSTRUMENT
COVERING THE SOFTWARE HEREIN SPECIFIED, IT IS UNDERSTOOD AND AGREED THAT SUCH
PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S INTERNAL USE AND PURPOSES
ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of Nebraska,
and shall be enforced in accordance with and governed by the laws of the State
of Nebraska.
7.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity, may
be instituted in and litigated in the state or federal courts of the State of
Nebraska. In accordance herewith, the parties hereto submit to the jurisdiction
of the courts of said state. Any party being not a resident of Nebraska at the
time of suit hereby appoints the Secretary of State of Nebraska as its agent for
receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall be
entitled to recover its costs and reasonable attorney's fees.
7.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative.
CUSTOMER: VENDOR:
BANK OF SANTA MARIA INFORMATION TECHNOLOGY, INC.
Signature: Signature Present Signature: Signature Present
Name: Cheryl Dunshee Name: Donald F. Dillon
Title: Senior Vice President Title: President
Address: 2739 Santa Maria Way Address: 1345 Old Cheney Road
Santa Maria, CA 93455 Lincoln, NE 68512
Date: 5-11-94 Date: May 12, 1994
APPENDIX A
DUE UPON EXECUTION: Thirty Percent (30%) LOCATION WHERE THE SOFTWARE
(Under 50,000 accounts) PRODUCT(S) WILL BE USED:
COMPUTER SYSTEM (CPU): A-11 Model E11 (A96) Bank of Santa Maria
2739 Santa Maria Way
Santa Maria, CA 93455
CUSTODIAL AGENT: West Gate Bank
1204 West O Street
Lincoln, NE 68528
SOFTWARE PRODUCT(S) AND LICENSE FEE(S):
320-000 Currency Transaction System $2,517
350-000 Check Reconciliation System 6,711
391-001 Federal Call Reporting System (Single Institution) 3,146
400-000 Fixed Assets System 5,369
702-000 Accounts Payable System 4,404
--------
SUBTOTAL: 22,147
LESS: Prior System Credit (13,659)
--------
TOTAL: $ 8,488
(Graphics Logo)
INFORMATION TECHNOLOGY INC.
SOFTWARE LICENSE AGREEMENT
Agreement made between Information Technology, Inc. (the Vendor"), and the
"Customer" identified below.
1. LICENSED SOFTWARE
1.1 LICENSE. Vendor grants to Customer and Customer accepts from Vendor a
nonexclusive and nontransferable license to use the software identified in
Appendix A (the "Software") under the terms set forth in this agreement.
1.2 PROPRIETARY NATURE OF SOFTWARE AND TITLE. The Software and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Software (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
propriety information and trade secrets, whether or not any portion thereof is
or may be validly copyrighted or patented, acknowledged to be protected by civil
and criminal law, and acknowledged to be of great value to Vendor. Except as
specifically licensed under this agreement, title and all ownership rights to
the Software and the Documentation remain with Vendor. Customer shall retain or
affix such evidences of ownership and proprietary notices as Vendor may
reasonably request. This paragraph shall survive the term or termination of
this agreement.
1.3 USE OF SOFTWARE. The Software may be used only for, by and on behalf
of Customer and only in connection with Customer's business operations. This
license is granted only for use at a single location identified in Appendix A
and upon a single computer system (CPU) identified in Appendix A and may not be
used upon any other computer or at any other location except as provided under
Paragraph 1.4.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to use the
Software at the location identified in Appendix A due to an emergency, or to
test emergency procedures, Vendor grants to Customer the right to use the
Software at a location other than the location defined in Appendix A. Any such
use shall be subject to all other restrictions of this agreement and shall
continue only so long as the condition giving rise to such use continues. Prior
to commencing such use, if possible, and in any event within forty eight (48)
hours of such use, Customer shall give Vendor written notice of the
circumstance, location and the expected length of such use. Failure to give
notice shall nullify Customer's right of emergency use, as herein granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to the
Software may not be assigned, licensed, sublicensed, pledged, or otherwise
transferred voluntarily, by operation of law or otherwise without Vendor's prior
written consent, and any such prohibited assignment shall be null and void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Software granted
under this agreement, Customer shall pay to Vendor the license fee specified in
Appendix A. Such license fee does not include, except as expressly provided in
this agreement or Appendix A hereto, installation or maintenance of the
Software, data base conversion, media, transportation charges, or taxes, all of
which costs and taxes shall be the obligation of Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix A shall be
payable in the following manner:
(A) A percentage of the license fee, as specified in
Appendix A, upon execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon
delivery of the Software by Vendor to Customer.
Invoices respecting the license fee shall be rendered in accordance with the
above payment schedule and are payable to Vendor at Vendor's address set forth
below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder, Customer
shall pay all taxes (including, without limitation, sales, use, privilege, ad
valorem or excise taxes) and customs duties paid or payable, however designated,
levied or based on amounts payable to Vendor hereunder or on Customer's use or
possession of the Software under this agreement, but exclusive of federal, state
and local taxes based on Vendor's net income. Customer shall not deduct from
payments to Vendor any amounts paid or payable to third parties for customs
duties or taxes, however designated.
2.4 CURRENCY. The purchase price and any other charges arising under this
agreement shall be invoiced and be payable in U.S. Dollars.
2.5 SECURITY. Vendor reserves and Customer grants to Vendor a security
interest in the rights of Customer for use of the Software and in the
Documentation as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the license fee set forth in
Appendix A. A copy of this agreement may be filed in appropriate filing offices
at any time after signature by Customer as a financing statement or Vendor may
require and Customer shall execute a separate financing statement for purposes
of perfecting Vendor's security interest granted pursuant to the provisions of
this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Software and Customer shall accept
delivery of the Software at Customer's address set forth below. Unless delayed,
as hereinafter provided for, delivery shall be completed within one (1) year of
the date accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of delivery,
Vendor shall not be obligated to effect delivery of the Software except upon
thirty (30) days written notice by Customer to Vendor. If delay in delivery is
due to any cause beyond the control of Vendor, the date upon which delivery is
to be completed shall be extended by the number of days of such delay.
3.3 TRAINING. Classes in the operation of the Software are available at
the offices of Vendor on a regularly scheduled basis at Vendor's normal rates
with respect thereto. All travel, meal and lodging expenses of
Customer in connection with such training shall be borne by Customer. On-site
training or assistance will be available solely at Vendor's discretion and will
be charged to Customer at Vendor's normal rates together with reasonable
expenses for travel, meals, lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable assistance
and cooperation to Vendor in Preparation of the Software and the delivery or
installation thereof. Such assistance and cooperation shall include, as
appropriate, reasonable access to Customer's facility and to Customer's records,
as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Software will be
delivered to Customer prior to or contemporaneously with the delivery of the
Software.
3.6 RISK OF LOSS. If the Software or the Documentation is lost or
damaged, in whole or in part, during shipment, Vendor will replace said Software
or Documentation at no additional charge to Customer. Upon delivery in good
condition of the Software and the Documentation, Customer shall be responsible
therefor and bear the risk of loss for said Software Documentation.
3.7 CONVERSION ASSISTANCE. Vendor may, at its sole discretion, assist
Customer in the conversion of Customer's files from a computer processor or
in-house computer system at Vendor's normal charges for such assistance.
Expenses, including but not limited to computer time, travel, meals, lodging and
local transportation incurred in connection therewith, shall be borne by
Customer. In no event shall Vendor be liable to Customer for loss of profits,
consequential, incidental, indirect or special damages arising from Vendor's
efforts to assist in the conversion of Customer's files. Vendor agrees to treat
Customer's confidential business with the same security as it would its own.
3.8 OPERATION. Customer acknowledges and agrees that it is exclusively
responsible for the operation, supervision, management and control of the
Software, including but not limited to, providing adequate training for its
personnel, instituting appropriate security procedures, and implementing
reasonable procedures to examine and verify all output before use. Vendor shall
have no responsibility or liability for Customer's selection or use of the
Software or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing integrity
and proper operation of the Software, Customer agrees to implement, in the
manner instructed by Vendor, each error correction and each enhancement and
improvement provided to Customer by Vendor. Customer's failure to do so shall
relieve Vendor of any responsibility or liability whatsoever for any failure or
malfunction of the Software as modified by a subsequent correction or
improvement, but in no such event shall Customer be relieved of the
responsibility for payment of fees and charges otherwise properly invoiced
during the term hereof. If requested by Vendor, Customer agrees to provide
written documentation and details to Vendor to substantiate problems and to
assist Vendor in the identification and detection of problems, errors and
malfunctions; and Customer agrees that Vendor shall have no obligation or
liability for said problems until it has received such documentation and details
from Customer.
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps necessary to
ensure that neither the Software nor the Documentation, nor any portion thereof,
on magnetic tape or disk or in any other form, is made available or disclosed by
Customer or any of its agents or employees to any other person, firm or
corporation. Customer may disclose relevant aspects of the Software and
Documentation to its employees and agents to the extent such disclosure is
reasonably necessary to Customer's use of the Software, provided, however,
Customer agrees that it will cause all persons permitted such access to the
Software and the Documentation to observe and perform the foregoing
non-disclosure covenant, and that it will advise Vendor of the procedures
employed for this purpose. Customer shall hold Vendor harmless against any
loss, cost, expense, claim or liability, including reasonable attorney's fees,
resulting from Customer's breach of this non-disclosure obligation. This
paragraph shall survive the term or termination of this agreement.
4.2 COPIES. Customer agrees that while the Software and the Documentation
are in its custody and possession, it will not(a) copy or duplicate or permit
anyone else to copy or duplicate any of the Software, Documentation or
information furnished by Vendor, or (b) create or attempt to create, or permit
others to create or attempt to create, by reverse engineering or otherwise, the
source programs or any part thereof from the object program for the Software,
the Documentation or other information made available under this agreement or
otherwise, (whether oral, written, tangible or in-tangible). Notwithstanding
the foregoing, Customer may make and retain two (2) copies of the Software,
including all enhancements and changes hereto, only for use in emergencies or to
test emergency procedures and may copy for its own use and at its own expense
the Documentation, but shall advise Vendor of the specific item copied, the
number of copies made and their distribution. The original and any copies in
whole or in part of the Software or Documentation which are made pursuant to
this provision shall be the exclusive property of Vendor and shall be fully
subject to the provisions of this agreement. Customer agrees to retain or place
Vendor's proprietary notice on any copies or partial copies made pursuant to
this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately of
the unauthorized possession, use, or knowledge of the Software, Documentation
or any information made available to Customer pursuant to this agreement, by any
person or organization not authorized by this agreement to have such possession,
use or knowledge. Customer will, thereafter, fully cooperate with Vendor in the
protection and redress of Vendor's proprietary rights. Customer's compliance
with this paragraph shall not, however, be construed in any way as a waiver of
Vendor's rights against Customer for Customer's negligent of intentional harm to
Vendor's proprietary rights, or for breach of Vendor's contractual rights.
4.4 INSPECTION. To assist Vendor in the protection of its proprietary
rights, Customer shall permit representatives of Vendor to inspect the Software
and Documentation and their use, including inspection of any location in which
they are being used or kept at all reasonable times.
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense, sell or otherwise convey or to disclose the Software or
Documentation, in any manner contrary to the terms of this agreement or in the
derogation of Vendor's proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition to
any other remedies available to it, the right to injunctive relief enjoining
such
actions. Customer hereby acknowledging that other remedies are inadequate.
4.6 ACCESS TO SOURCE CODE. Vendor has deposited the Software in source
code form and Documentation sufficient to facilitate maintenance, modification
or correction of the Software with the custodial agent named in Appendix A.
Vendor reserves the right to change said custodial agent at any time with
written notification to Customer within sixty (60) days of said change. If
Vendor, its successors or assigns shall cease to conduct business for any period
in excess of thirty (30) days, Customer shall have the right to obtain, for its
own and sole use only, a single copy of the then current version of the source
code form of the Software supplied under this agreement, and a single copy of
the Documentation associated therewith, upon payment to the person in control of
the said source code form of the Software of the reasonable cost of making each
copy. The source code form of the Software supplied to Customer under this
paragraph shall be subject to each and every restriction on use set forth in
this agreement. Customer acknowledges that the source code form of the Software
and the associated Documentation are extraordinarily valuable proprietary
property of Vendor and will be guarded against unauthorized use or disclosure
with great care.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 SOFTWARE WARRANTY. Vendor warrants that at delivery of the Software,
the Software will perform in accordance with the then current Documentation
provided Customer, and further warrants that it has the right to authorize the
use of the Software under this agreement. Vendor's obligation and liability
under this paragraph shall, however, be limited to the replacement and
correction of the Software so that it will so perform, or to obtaining any
authorization necessary to make effective the grant of license to Customer of
the use of the Software.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend Customer
from any claim or any suit based on any claim that the use of the Software by
Customer under this agreement infringes on any patent, copyright, trademark, or
other proprietary right of any third party, provided that Customer gives Vendor
prompt and written notice of any such claim or suit and permits Vendor to
control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL
OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO , THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by Vendor
under paragraph 5.5 shall be subject to extension for successive one year
warranty periods commencing on the date of the delivery of the Software. Each
one year extension (the "Warranty Period") shall be deemed to automatically
occur unless notice is given by either Customer or Vendor of an election not to
so extend, such notice to be given on or prior to the sixtieth (60th) day
preceding the Warranty Period. Any such extension shall in no event be
effective unless Customer shall have paid to Vendor on or prior to the beginning
of the Warranty Period its then current annual maintenance fee.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with all
enhancements and changes to the Software designed or developed by Vendor and
released to its other customers during the Warranty Period. Any change or
enhancement to the Software, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license fee
of any enhancements or corrections developed by Customer. Vendor reserves the
right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, types of hardware supported, throughput,
and other related programming and documentation improvements required to
maintain the Software current. As part of these services, Vendor will provide
Customer the changes with written instructions concerning implementation. It is
understood and agreed that Vendor provision of improvements and enhancements
under this paragraph does not include providing to Customer a new set of
software which may result from rewriting the Software. Vendor alone shall
determine whether the work product of Vendor constitutes new software as a
result of a complete rewrite (which is not provided to Customer hereunder) or an
improvement or enhancement of the Software (which will be provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in paragraphs 5.1
and 5.2 and Customer's rights under paragraph 5.5 shall immediately terminate if
the Software is revised, changed, enhanced, modified or maintained by any one
other that Vendor without the prior specific direction or written approval of
Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that Vendor's
responsibilities in the event of its breach of the warranties contained in
paragraphs 5.1 and 5.2 are as set forth in said paragraphs. Vendor's liability
for damages, including but not limited to liability for patent or copyright
infringement, regardless of the form of action, shall not exceed the license fee
set forth in Appendix A to this agreement and shall arise only if the remedies
provided in paragraphs 5.1 and 5.2 are not fulfilled by Vendor. Customer
further agrees that Vendor will not be liable for any lost profits, or for any
claim or demand against Customer by any other party, except a claim for patent
or copyright infringement as provided herein. IN NO EVENT WILL VENDOR BE LIABLE
FOR CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. No action, regardless of form, arising out of this agreement, may
be brought by either party more than one (1) year after the cause of action has
accrued, except that an action for non-payment may be brought within one (1)
year after the date of last payment. No action by Vendor for wrongful
disclosure or use of the Software or Documentation shall be deemed to have
accrued until Vendor receives actual notice of such wrongful disclosure or use.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement in the event of a
default by Customer unless Customer shall have cured the event of default, as
hereinafter defined, within twenty (20) days after notice of such event of
default given by Vendor to Customer. Upon any termination of this agreement,
Customer shall deliver to Vendor the Software, the Documentation and all copies
thereof and shall also warrant in writing that all copies have returned to
Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as any of the
following:
(A) Customer's failure to pay any amounts required to be paid to
Vendor under this agreement on a timely basis;
(B) Any attempt to assign, sell mortgage, sublease, sublicense or
otherwise convey or to disclose, except as herein expressly permitted, the
Software or the Documentation;
(C) Causing or permitting any encumbrance, of any nature whatsoever
to attach to Customer's interest in the Software in favor of any person or
entity other than Vendor'
(D) The entry of any order for relief under any provision of the
federal bankruptcy code in any bankruptcy proceedings initiated by or against
Customer; or
(E) Customer's breach of any of the terms of conditions of this
agreement.
6.3 DAMAGES. Upon the occurrence of an event of default without cure
within the period of time above-provided, all license or other fees payable to
Vendor under this agreement shall without notice or demand by Vendor become
immediately due and payable as liquidated damages. This provision for
liquidated damages shall not be regarded as a waiver by Vendor of any other
rights to which it may be entitled in the event of Customer's default, but
rather, such remedy shall be an addition to any other remedy lawfully available
to Vendor.
VII. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference purposes only
and are not to be considered a part of this agreement.
7.2 FORCE MAJEURE. No party shall be liable for delay in performance
hereunder due to causes beyond its control, including but not limited to acts of
God, fires, strikes, delinquencies of suppliers, acts of war or intervention by
any governmental authority, and each party shall take steps to minimize any such
delay.
7.3 WAIVER. No waiver of any breach of any provision of this agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof and no waiver shall be effective unless made
in writing and signed by an authorized representative of the party to be charged
therewith.
7.4 SEVERABILITY. In the event that any provision of this agreement shall
be illegal or otherwise unenforceable, such provision shall be severed from this
agreement and the entire agreement shall not fail on account thereof, the
balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ
THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT TO
IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS OF THE
AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS, CONDITIONS,
WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING
TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER AGREE THAT THIS
AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY A PRIOR OR EXISTING
COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF TRADE OR CUSTOM, OR BY
ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO THIS AGREEMENT OR
OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR OTHER INSTRUMENT
COVERING THE SOFTWARE HEREIN SPECIFIED, IT IS UNDERSTOOD AND AGREED THAT SUCH
PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S INTERNAL USE AND PURPOSES
ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of Nebraska,
and shall be enforced in accordance with and governed by the laws of the State
of Nebraska.
7.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity, may
be instituted in and litigated in the state or federal courts of the State of
Nebraska. In accordance herewith, the parties hereto submit to the jurisdiction
of the courts of said state. Any party being not a resident of Nebraska at the
time of suit hereby appoints the Secretary of State of Nebraska as its agent for
receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall be
entitled to recover its costs and reasonable attorney's fees.
7.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative.
CUSTOMER: VENDOR:
BANK OF SANTA MARIA INFORMATION TECHNOLOGY, INC.
Signature: Signature Present Signature: Signature Present
Name: Cheryl Dunshee Name: Donald F. Dillon
Title: Senior Vice President Title: President
Address: 2739 Santa Maria Way Address: 1345 Old Cheney Road
Santa Maria, CA 93455 Lincoln, NE 68512
Date: 5-11-94 Date: May 12, 1994
APPENDIX A
DUE UPON EXECUTION: Thirty Percent (30%) LOCATION WHERE THE SOFTWARE PRODUCT(S)
(Under 50,000 accounts) WILL BE USED:
COMPUTER SYSTEM (CPU): A-11 Model E11 (A96) Bank of Santa Maria
2739 Santa Maria Way
Santa Maria, CA 93455
CUSTODIAL AGENT: West Gate Bank
1204 West O Street
Lincoln, NE 68528
PRODUCT(S) AND LICENSE FEE(S):
106-102 DP1000/1800 Item Processing Module $9,667
108-108 DP1000/1800 Bulk Filing Module Interface 4,770
109-001 DP1000/1800 Directed Fine Sort Module 6,750
107-109 B20 FSA Commercial Bank Transaction Set (Level 2.X) 5,243
509-155 FSA Per Workstation Fee (155 @ $440) 68,200
SUBTOTAL: 94,630
LESS: Prior System Credit (74,348)
TOTAL: $20,282