Exhibit 10.6
Trust Services Agreement dated April 30, 1998 by and
between Harrington Bank, FSB and INFOVISA
SOFTWARE LICENSE AGREEMENT
MAUI ( Multiple Application User Interface )
This Software License Agreement (the "Agreement") made this the 30th day of
April, 1998, is by and among INFOVISA ("Licensor"), and Harrington Bank, FSB,
("Licensee").
The terms of this Software License Agreement apply to Licensor's software known
as Multiple Application User Interfaces which includes Enhanced Trust Accounting
and Enhanced Trust Reporting (Software), which is owned by UniPac Service
Corporation ("Unipac"). INFOVISA warrants it has the right to sublicense the
Software.
NOW, THEREFORE, in consideration of the mutual promises in this document, the
parties agree as follows:
1. Grant. Subject to all the terms and conditions of this Software License
Agreement, Licensor hereby grants the Licensee a personal, non-exclusive,
non-transferable right and license to use the Software and any documents,
manuals or other material provided in support of the software. No transfer
of ownership is intended by this Software License Agreement.
2. Term. This Agreement shall be in force beginning on the date accepted by
the President of Infovisa and shall continue for a period of sixty (60)
months commencing upon billing of the first months maintenance.
3. Product Provided. Licensor will provide an executable module in machine
readable form for that version of the software licensed to the Licensee.
Licensor will provide installation, installation training, and maintenance
of the software on Licensee's machine, along with sufficient testing to
insure that the software is "up and running" and performing all tasks
specified by the Licensor, and is functioning in accordance with Licensor's
own specifications. Maintenance shall be defined in this case, and in any
and all other instance, as consisting of installing and maintaining the
Software. The Licensee is not permitted to modify or re-engineer the
Software without the Licensor's written consent, although any additional
modifications and services not pertaining to installation of the Software
requested by the Licensee will be provided for on a pay for basis by
Licensor. Licensor shall have a right to a copy of all modifications and
all modifications shall be owned by UNIPAC.
4. Consideration. In consideration of the license, Licensee shall pay to
Licensor a "license fee" and a "maintenance fee" as set forth in ATTACHMENT
A.
5. Interest. Interest on all past due amounts under this Agreement shall
accrue from the date due at an annual interest rate equal to the lessor of
18% per annum or the maximum interest rate permitted by law.
6. Acceptance/Notice. Licensee agrees to use the Software according to the
instructions supplied by Licensor. Licensee shall notify the Licensor of
all instances where the Licensee believes that (1) the program is not
functioning, or (2) the program is not functioning in accordance with the
documentation and/or manuals. For each such instance, Licensee agrees to
provide notice to Licensor. Each such notice shall explain, as well as
Licensee can, the step-by-step process leading up to the instance itself,
any subsequent actions taken by Licensee, and the results of such action.
The notice shall be completed and sent to Licensor in a reasonable time (in
most cases within three (3) days after the instance first occurs).
7. Software from Other Vendors. In any other instance in which the Software
modifies in any way other software licensed from any other vendor, the
Licensee shall be responsible for keeping a copy of the unmodified software
readily available, and this unmodified copy shall be the copy of that
software which shall be returned to its vendor if such is required. The
Licensor assumes no responsibility with regard to the Licensee's use of any
software other than its own.
8. Taxes and other costs. All prices quoted by Licensor are exclusive of
taxes, duties, assessments, and other, all of which shall be paid solely by
the Licensee.
Page: 1
9. Trade Secrecy. The Licensee recognizes that the Software is the trade
secret and exclusive property of UNIPAC; therefore, the Licensee shall take
special care to preserve its confidentiality. In particular, the Licensee
shall not sell, distribute, or transfer, in any manner, any copy of the
Software in whatever form to any other party without the express written
authorization of Licensor. The Licensee shall not allow access to the
Software by any third parties. The Licensee shall take care that any copies
of any materials that it makes for its own use will be clearly labeled as
copyrighted materials using the form,
CONFIDENTIAL AND TRADE SECRETS MATERIALS
Notwithstanding anything in this Agreement to the contrary, it is the express
intention of the parties to this Agreement that all right, title and interest of
whatever nature in Licensor's users manuals, training materials, all computer
programs, routines, structures, layout, report formats, together with all
subsequent versions, enhancements and supplements to said programs, all
copyrights (including both source and object code) and all oral or written
information relating to the Software conveyed in confidence by Licensor to
Licensee pursuant to this Agreement, and all other forms of intellectual
property of whatever nature is and shall remain the sole and exclusive property
of the UNIPAC.
10. Licensee's Responsibilities.
A. The Licensee will provide the Licensor a contact person to be the data
administrator for the Software;
B. The data administrator should have knowledge of investments and trust
operations;
C. The Licensee will supply and input the comparison index information
into the Software;
D. The Licensee will make changes to the data that has been downloaded
into the Software when necessary;
E. The Licensee will provide at a minimum weekly backups of the software
and data;
F. The Licensee will provide computer equipment and software to run the
Maui software programs as specified in ATTACHMENT B. The Licensee will
maintain computer equipment and software compatible with the
Licensor's modifications and therefore, agrees to purchase new
equipment and software as may reasonably be required by the Licensor.
11. Warranties and Disclaimers. Licensor warrants that it has used its best
efforts and skill in the production of the Software, provided that the
software is run according to the instructions and using the kind of
equipment required for the Software and operated by persons with reasonable
skill.
12. Liability for Damages. The Licensee understands that the Licensor will not
be in a position to control the use which the Licensee makes of its
computer system or the other software and peripherals the Licensee uses
thereon, or the procedures the Licensee employs in its computer operation.
All claims with regard to the Software by the Licensee against the Licensor
must be made within one (1) year of Licensee's awareness of such error or
forever be barred.
Except for the express warranties set forth in this Agreement, Licensor
makes no representations of warranties of any nature, oral or written,
express or implied regarding the Software, the documentation, the services
provided under this Agreement, or any other matter, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. This Agreement does not constitute a joint account
either expressed or implied between Licensor and Licensee. Licensor is
acting as an independent contractor and not as an agent of the Licensee
organization. Any liability of Licensor to Licensee, whether for breach of
this Agreement, negligence, or otherwise, shall be specifically subject to
the limitations of paragraph 13, and in no event shall its liability exceed
the actual amount of payments made by Licensee to Licensor during the
then-existing term of this Agreement.
Pursuant to this Agreement, Licensor may use third parties to assist it in
providing its services to Licensee. No such third party makes any
warranties whatsoever, whether expressed or implied, to the Licensee as to
fitness, merchantability or any other matter; no such third party shall
have any liability to the Licensee or any other person or entity in any way
arising out of any error or omission in the services provided by such
third-party, or a delay in providing those services. In no event shall any
third-party providing services to Licensor be liable to any Licensee or
other person or entity for any loss, injury, or damages, including
incidental or consequential damages or for anything beyond such third
party's reasonable control.
13. Limitation of Liability. Because software is inherently complex and may not
be completely free of errors, Licensee is advised to verify Licensee's work
and to make backup copies. In no event will Licensor be liable for
indirect, special, incidental, economic, cover, or consequential damages
arising out of the use of or inability to use the software or user
documentation, even if advised of the possibility of such damages.
Licensor's liabilities in tort contract or
Page: 2
otherwise shall not exceed the total moneys the Licensee paid to Licensor
for the use of the software up to the time that the claim accrued.
14. Site Specification. The Licensee's use of the Software is restricted to
unlimited concurrent user(s) having access to an unlimited number of
accounts on the Licensee's existing database, at the site(s) at which
Licensee conducts its day-to-day trust operations, said site(s) being
located at Richmond, IN. The Software is to be used by Licensee to process
accounts of Licensee only, and acknowledges that Licensor will suffer
damage is Licensee permits the Software to be used to process accounts of
unrelated third parties not expressly covered by this License Agreement.
Licensee grants to Licensor the right to inspect its computer operations to
determine if it is in compliance with this Agreement; however, the Licensor
agrees that it will act reasonably in the exercise of this right and
cooperate with the Licensee to avoid disruption of its computer operations
and to preserve the confidentiality of any of its files. Should Licensee be
found to be using the Software in violation of this Agreement, Licensee
agrees to pay any and all additional fees Licensor determines due and owing
under the current fee schedule, accruing from the original date of this
Agreement.
15. Operating System Specification. Licensee recognizes the need to maintain on
the microcomputer operating system software compatible with Licensor's
enhancements to the Software and therefore, Licensee agrees to purchase,
install and maintain new versions of the applicable operating system as
recommended by Licensor within the time frame specified by Licensor.
16. Remedies Cumulative; No Waiver. No remedy of Licensor contained in this
Agreement shall be considered exclusive of any other remedy; but rather,
each remedy shall be distinct, separate and cumulative, and in addition to
any other right or remedy provided in this Agreement or by applicable law.
Each such right or remedy may be pursued singularly, successively or
together in the sole discretion of Licensor and the failure to exercise any
such right or remedy shall in no event be construed as a waiver or release
of the same. Licensor may waive any right or remedy available to it, but
any such waiver is not continuing, is limited to the specific act or
omission waived and shall not affect any other rights or remedies.
17. Default by Licensee. In the event Licensee fails to perform any of the
obligations under this Agreement, including but not limited to the failure
to make any payment required under paragraph 4 with attachments, and this
failure continues for a period of ten (10) days from the date when
performance should have been rendered, Licensee shall be deemed to be in
default of its obligations hereunder.
18. Right to Suspend Performance Without Terminating. In the event of a default
in any terms of this Agreement by Licensee, then, in addition to Licensor's
right to terminate this Agreement and any other rights and remedies
Licensor may have, Licensor may suspend performance of all services under
this Agreement (and deny Licensee access to Software updates) until the
default is cured; in such event, Licensee shall remain liable to Licensor
under the terms of this Agreement, including all payments required under
paragraph 4 until the default is cured.
19. Renewal. This Agreement shall automatically renew itself for additional
successive five year terms, unless at least ninety (90) days prior to the
end of the original term or any renewal term, Licensee gives Licensor, or
Licensor gives Licensee, written notice of its intent to cancel this
Agreement at the end of the then current term.
20. Right to Terminate; Damages Upon Termination. In the event a default by
Licensor shall occur hereunder, the Licensee may, at its option,
immediately terminate this Agreement. In the event a default by Licensee
shall occur hereunder, Licensor may, at its option, immediately terminate
this Agreement. Licensee acknowledges that Licensor will incur great
initial costs and expense to install the Software and to provide training
and customer support for Licensee's personnel, the recovery of said costs
and expenses by Licensor are to take place over the term of this Agreement
and any renewal. Therefore, in the event of default of this Agreement by
Licensee, Licensee agrees to pay to Licensor an amount equal to the
maintenance fees due for the remaining balance of the term of this
Agreement or any renewal thereof, so that Licensor may recoup its initial
costs and expenses. In addition, all Software, equipment, manuals and other
property of Licensor in Licensee's possession shall immediately be returned
to Licensor, at Licensee's expense. Notwithstanding the foregoing, nothing
herein shall limit Licensor's legal and equitable remedies against Licensee
in the event of a breach by Licensee of the terms, conditions and
protective covenants contained in this Agreement, including, but not
limited to, injunctive relief in the event UNIPAC or Licensor's proprietary
interests in the Software are threatened or infringed.
Page: 3
21. Compensation in Subsequent Years. At any time upon thirty (30) days prior
written notice to Licensee, Licensor, at its sole option may increase its
Maintenance Fee, without Licensee's specific consent. The Maintenance Fee
may not be increased by more than five percent (5%) per calendar year from
the Maintenance Fee payable the previous calendar year.
22. Binding Effect; Assignability. This Agreement shall be binding upon and
shall inure to the benefits of the parties hereto and their respective
heirs, representatives, successors and assigns, Licensee may not assign,
delegate or otherwise transfer any of its or his rights, duties or
obligations hereunder or interest herein without written consent of
Licensor. In the event of any such assignment, delegation, or other
transfer by Licensee, whether or not Licensor has consented, the Licensee
shall remain liable for all amounts due hereunder and all other obligations
of Licensee pursuant to this Agreement, whether the Assignor or Transferee
is or may also be liable to Licensor.
Licensor may transfer or assign its rights, duties and obligations
hereunder or interest herein to any entity related to Licensor by
substantially similar ownership or control, or to a successor in interest
pursuant to a merger, reorganization, stock sale or other transaction,
without consent of user.
23. Governing Law. This agreement shall be governed by the laws of the State of
Colorado.
24. Jurisdiction, Venue. The parties hereto agree that, in the event either
party elects to pursue legal action against the other for default of any
obligation under this Agreement, such legal action shall be brought in the
State of Colorado, unless Licensor, at its sole option, elects to bring
action in the county and state of residence of the Licensee.
25. Severability. If any part of this agreement is held void for any reason,
the balance of this Agreement shall continue to be valid and binding.
26. Violation. Licensee agrees to take all reasonable steps necessary to ensure
that none of its employees nor any related third party violate the terms of
this Agreement.
27. Merger Clause. This Agreement and any appendices or other writings signed
by both parties associated herein constitutes the entire Agreement between
the parties hereto and supersedes all proposals, prior negotiations, and
agreements, whether oral or written.
WITNESS the due execution hereof the day and date first written above.
DATED this the 30th day of April, 1998.
INFOVISA, Inc. - Licensor Harrington Bank, FSB-Licensee
Cornelius, NC (A Colorado Corporation) Richmond, IN
Signed: /s/ Joseph W. Brown Signed: /s/ Catherine A. Habschmidt
------------------- ---------------------------
PLEASE PRINT OR TYPE:
NAME: JOSEPH W. BROWN NAME: Catherine A. Habschmidt
TITLE: PRESIDENT TITLE: SVP & CFO
DATE: 5/14/98 DATE: 4/30/98
Signed: /s/ Daniel H. Haglund
---------------------
PLEASE PRINT OR TYPE:
NAME: Daniel H. Haglund
TITLE: SVP & Treasurer
DATE 4/30/98
Page: 4
ATTACHMENT A:
Licensing, Maintenance Fees and Other Terms
In consideration of the software license and maintenance, Licensee shall pay to
Licensor the following fees:
INITIAL SOFTWARE LICENSE:
1. $7,000 One Time License Fee. Payment is due upon delivery of this Agreement
to INFOVISA.
2. $7,000 One Time Installation ion Fee. Payment is due upon installation.
MONTHLY MAINTENANCE FEES:
1. $1,200 Per Month for ETA in Years 1 & 2.
2. $1,500 Per Month for ETA in Years 3, 4, 5.
3. $0 Per Month for ETR.
4. $0 Per Month for Custody Interface.
$1,200 Total Per Month for Years 1 & 2.
$1,500 Total Per Month for Years 3, 4, 5.
2. The aforementioned fee schedule assumes services are provided to a single
ETA processing unit located at the site at which Licensee conducts its
day-to-day trust operations. If additional sites are required in the
future, additional fees will apply.
OPTIONAL SERVICES:
1. Printing, Collating, and Stapling of statements are $0.09 per page.
Envelopes and stuffing of statements are $0.12 per page.
2. Disaster Recovery service includes delivery of file server loaded with
software, which must be loaded at client site with backup tapes: $6,000 per
disaster (delivered).
3. Security Pricing not Included.
4. $100 Per Month forAMS (Realignment & Modeling).
5. $20 Per Month for Indices.
6. $100 Per Month for Common Trust Fund Module.
Page: 5
ATTACHMENT B
ETA Hardware Configuration
FILE SERVER:
Manufacturer, network certified, with:
Pentium 200 Processor
128 MB RAM
3 -4 GB Hard Drives
Monitor
4/8 GB Tape Drive which writes DDS2
Uninterruptable Power Supply
Ethernet Network Card
Work Stations:
* Work stations should be Pentium 133 or greater with 32 MB RAM and 1 GB
Harddrive.
* Windows NT 4.0 Workstation software.
* Ethernet Network Card
Network:
* Windows NT network is required with Ethernet connectivity recommended.
* Ethernet 24 Port Hub and Patch Panel.
* Category 5 Plenum Data Cable is recommended for the network wiring
SOFTWARE:
* Windows NT 4.0 with 10 or 25 Station User License is required
* SQL Server 6.5 with 10 or 25 Station User License is required
* Cheyenne ArcServe 6.0 Software is required for system backup.
* Carbon Copy 32 Version 4.0 is required on one work station for trouble
shooting.
* MS Access for one work station WinZip Version 6.3 SR-1 (32 Bit version)
Modems
* An external V.34 compatible modem which is on the NT Hardware Compatibility
list is required on the file server (33.6 or faster baud rate). This will
be used for system interfaces.
* An external V.34 compatible modem which is compatible with Carbon Copy 32
and Microsoft RAS is also required on one workstation. This allows INFOVISA
technical support people access to your ETA system should trouble shooting
be required
* A US Robotics(TM) or Practical Peripherals(TM) modem is recommended.
Printers:
* A laser printer is required for printing checks on the system. A Hewlett
Packard(TM) Laserjet 5N is recommended. Note: The Laserjet 5N has been
discontinued and HP is coming out with a replacement.
* A laser printer is required for printing statements and reports on the
system. A Hewlett Packard(TM) 5 SI is recommended.
TELECOMMUNICATIONS LINES:
* A standard analog phone line is required for the file server.
* A standard analog phone line, which can receive calls, is required for one
workstation for trouble shooting by INFOVISA.
* A telephone set placed near the workstation with the external modem is
required. We want to talk to you at the same time we dial in during trouble
shooting.
NOTE: Manufacturers who have network certified machines include: IBM, Dell,
Compaq and Hewlett Packard
Page: 6