License and Referral Agreement - Cavion Technologies Inc. and Cardinal Services Corp.
LICENSE AND REFERRAL AGREEMENT
This License and Referral Agreement is between Cavion Technologies,
Inc., a Colorado corporation ("Cavion"), and Cardinal Services
Corporation, a credit union service organization incorporated in
California ("CSC").
CSC is a leading provider of web site design, development and hosting
services for credit unions. Cavion is a leading provider of secure
Internet access, transactional banking and other network services to
credit unions, including web site hosting. Cavion's data connectivity
services ("network services") are offered through Cavion's CuiNet(R)
network. CUiNet is a secure interactive network for electronic
communications and commerce among credit unions, their members, leagues,
service organizations and vendors of services to credit unions, CSC and
Cavion desire to enter into a licensing and cooperative marketing
relationship for their mutual benefit.
It is agreed as follows:
1. CAVION SOFTWARE. Cavion will license to CSC Cavion's proprietary
software described on the attached Services Schedule (the "licensed
software"), to enable CSC to resell to clients of CSC the services
described on the Services Schedule. The scope of the license is
described in section 5 below. Cavion will cooperate with CSC to
provide application program interfaces allowing CSC to create a user
interface to each licensed software program. Cavion will install the
licensed software on servers supplied by Cavion for purchase by CSC.
Cavion will provide training on the licensed software to CSC
personnel, as mutually agreed from time to time. Upon mutual
agreement of the parties, the Services Schedule may be modified at
any time to add or reduce the software products licensed under this
agreement. Cavion reserves the right to discontinue support of any
software product included in the Services Schedule, on at least 120
days notice to CSC.
2. SERVER CO-LOCATION. At a mutually agreed time, Cavion will make
available space at Cavion network operations centers to house web
servers and associated equipment owned and operated by CSC ("CSC's co-
located equipment"). CSC will be responsible for moving CSC's co-
located equipment to Cavion's facilities. Cavion will install and
interconnect CSC's co-located equipment to CUiNet, and will provide
CSC with access to CUiNet at the bandwidth specified on the attached
Services Schedule. CSC's access to CUiNet under this agreement is
solely for the purposes of (a) providing Internet access to CSC's web
servers, and (b) providing CSC with dedicated remote access to CSC's
co-located equipment. Access to CUiNet for other purposes may be
provided to CSC upon mutual agreement. Cavion will contract with a
local telecommunications provider to establish and maintain a
connection from CSC's servers and associated equipment located at
CSC's headquarters facility ("CSC's in-house equipment") to CUiNet.
3. MARKETING COOPERATION. CSC will use its commercially reasonable
efforts to resell the services described in the Services Schedule,
and will use its commercially reasonable efforts to promote Cavion's
other network services, on a nonexclusive basis, to its credit union
clients. Cavion will use its commercially reasonable efforts to
refer its credit union clients to CSC, on a nonexclusive basis, for
web site design and development work. The web sites of credit union
clients that are referred under this agreement will be hosted by
Cavion or CSC, as determined by the client. The parties will engage
in joint advertising and product-oriented public relations, as
mutually agreed from time to time during the term of this agreement.
Each party will at all times give prompt, courteous and efficient
service to clients, and will do nothing which tends to injure the
reputation or goodwill of the other party. CSC will not resell the
services described on the Services Schedule to clients referred by
Cavion.
4. FEES.
4.1 Cavion will pay CSC a one-time referral fee of $1,000 for
each credit union under contract with CSC for web content that
is referred to Cavion by CSC and that contracts with Cavion for
network services (a "CSC referred client"). The referral fee is
due within 30 days after the end of the month in which Cavion
receives its set-up fee in full from the CSC referred client.
Payment of the referral fee will be accompanied by a report
listing the name and location of each CSC referred client that
has contracted with Cavion for network services during the
previous month.
4.2 CSC will pay Cavion the set-up and monthly recurring fees
for access to CUiNet described in the Services Schedule. These
fees reflect Cavion's direct costs for equipment and bandwidth.
The nonrefundable set-up fee is due one-half upon execution of
this agreement and one-half upon receipt of invoice from Cavion
after activation of the network connection. Monthly recurring
fees will begin upon commencement of service, and are due upon
receipt of invoice from Cavion. Monthly fees for bandwidth may
be increased to reflect increases in Cavion's direct cost.
4.3 CSC will pay Cavion a monthly software license fee for each
credit union client to which CSC grants a sublicense of the
licensed software or provides services using the licensed
software (a "CSC user"). Initially, the software license fees
will be as described in the Services Schedule. These fees
reflect a discount of 15% below Cavion's published prices direct
to credit unions for the network services on the date of this
agreement. Software license fees may be increased (a) for new
CSC users, in Cavion's sole discretion, (b) for existing CSC
users, in Cavion's sole discretion, no more than once in any
three-year period of use by the CSC user, or (c) for existing
CSC users, on an annual basis to reflect changes in the All-
Urban Consumer Price Index as published by the Bureau of Labor
Statistics. However, any increase in software license fees will
require at least 60 days notice to CSC, and will continue to
reflect a discount of 15% below Cavion's published prices direct
to credit unions for the network services. Any discounts for
additional software products added to the Services Schedule will
be as mutually agreed.
4.4 In addition to the fees described in the preceding two
subsections. CSC will pay any applicable sales, use, value-
added, personal property or similar taxes. Monthly fees for
services discontinued by CSC users will not be prorated.
5. OWNERSHIP AND LICENSE.
5.1 "Cavion technology" means all inventions, designs, software
and intellectual property of any kind used in the operation of
CUiNet. Cavion's network services, and the licensed software
including all portions and complete or partial copies thereof,
all derivatives, modifications and enhancements thereof, and any
documentation associated therewith. Cavion owns or licenses
from third parties all Cavion technology.
5.2 Cavion hereby grants to CSC, during the term of this
agreement and subject to the provisions of this agreement, a
nonexclusive nontransferable license (a) to use the Cavion
technology (other than the network services software) for the
purpose of connecting to, and transmitting and receiving data
across, CUiNet as contemplated by this agreement, (b) to use the
object code of the licensed software to provide to CSC's users
the corresponding network services, and (c) to use the
application program interfaces provided by Cavion to create a
user interface to each licensed software program. This license
does not include rights to (a) use the Cavion technology for any
other purpose, (b) modify, translate, at merge any network
services software with another program, (c) create a derivative
work based on the Cavion technology, or (d) sublicense or
transfer the Cavion technology to any third party, except as
described in the following sentence. CSC may grant to CSC
users, during the term of this agreement, a nonexclusive
nontransferable sublicense to use the network services as
provided by CSC, or to use the object code of the licensed
software to provide to the CSC user's members the corresponding
network services. Any sublicense to CSC users will be subject
to a written agreement providing protections to Cavion, as CSC's
supplier, at least as strong as those described in the attached
User Terms Schedule. CSC will not reverse-engineer,
disassemble, decompile, or make, any attempt to discover the
source code of the network services software. CSC will not copy
the network services software, except for temporary browser-
embedded copies as required to run the licensed software. All
rights not explicitly granted to CSC under this section are
reserved to Cavion.
5.3 Each party hereby grants to the other, during the term of
this agreement and subject to the provisions of this agreement,
a nonexclusive, nontransferable license to use the trademarks of
the providing party and any promotional materials furnished by
the providing party, for the purpose of promoting the services
of the providing party.
6. WEB SITE LINKS. The parties will provide links to each other's web
sites on the terms described in this section. For purposes of this
agreement, "link" means a hypertext link to the home page of a web
site that connects the user to that web site, "host site" means a
party's web site on which a link to the other party's web site is
displayed, and "target site" means the web site that a link connects
to.
6.1 Each party will provide a text file incorporating a link to
that party's target site (a "link file"). The link file, in a
form mutually agreed upon, will be incorporated into the HTML
files of the other party's host site. The location and
appearance of the link will be in the discretion of the host
site owner, after consultation with the target site owner. The
host site owner will accommodate updates to the link file from
time to time, as reasonably requested by the target site owner.
6.2 Each party hereby grants to the other, subject to the
provisions of this agreement, a nonexclusive nontransferable
license to establish a link from the host site to the target
site, and to use the link file provided by the target site owner
for the purpose of establishing such link. This license does
nor include rights to (a) use the link file for any other
purpose, (b) modify or create a derivative work based on the
link file, or (c) sublicense or transfer this license to any
third party. All rights not explicitly granted to the host site
owner under this subsection are reserved to the target site
owner. The license granted under this subsection is revocable
at the discretion of the target site owner. The host site owner
will delete the link at any time, within 2 business days of a
request by the target site owner.
6.3 Neither party will (a) place any advertisement or link on
its web site for adult, firearms, hate or other violent or
sexually oriented web sites, or (b) advertise on its web site or
link to any advertisers blacklisted or censured by the Federal
Trade Commission, Direct Marketing Association, Advertising
Association or any other recognized authority for filtering
Internet content.
6.4 CSC will give Cavion an opportunity to comment on any CSC
privacy policy and privacy language of any agreement with CSC
users.
7. SET-UP OF THE SERVICES. Any network servers, routers and other
equipment paid for by CSC as part of the set-up fees are described in
the attached Equipment Schedule. This equipment, as well as any CSC
provided servers and associated equipment housed at Cavion's
facilities, belongs to CSC. CSC is responsible for insuring all CSC
equipment, whether located at a CSC facility or a Cavion facility.
All other equipment associated with CUiNet and CSC's connection to
CUiNet is owned or leased by Cavion, whether located at a CSC
facility or a Cavion facility. Title and risk of loss to any
equipment purchased by CSC will pass to CSC upon delivery to the
shipping carrier. Cavion retains a security interest in equipment
purchased until final payment of the set-up fees. CSC is responsible
for equipment installation and wiring at CSC's facility, with
assistance from Cavion engineering staff. Equipment is deemed
accepted upon the first successful use of CUiNet.
8. NETWORK OPERATIONS.
8.1 Cavion will provide telephone support to CSC during regular
business hours at the nearest Cavion staffed facility.
Emergency support is available 24 hours per day, 365 days per
year. Cavion will maintain, administer and upgrade CUiNet as
appropriate (in Cavion's judgment) for effective network
operations. Should an upgrade of CUiNet require upgrade of
CSC's in-house equipment or software to remain compatible, the
upgrade of CSC's in-house equipment or software will be CSC's
responsibility. CSC is solely responsible for providing support
to its users relating to the licensed software.
8.2 Cavion will maintain the network connection equipment
provided to CSC's facility under this agreement, whether the
equipment belongs to CSC or Cavion. However, CSC is responsible
for maintaining in appropriate operating environment and
restricting access to the connection equipment. Cavion relies
on CSC to promptly notify Cavion of any problem affecting CSC's
connection to CuiNet, and to cooperate with Cavion (including
providing access to CSC's facility and technical personnel) as
needed to correct any such problem.
8.3 CUiNet uses standard telecommunication links and standard
network server technology. While expected to be minimal,
unscheduled temporary service disruptions cannot be completely
eliminated. Network service will also be limited or interrupted
from time to time for scheduled maintenance, network expansion,
upgrades or other administrative purposes. Cavion will make
commercially reasonable efforts to notify CSC in advance of
scheduled downtime, and to limit scheduled downtime to off-peak
hours.
8.4 Cavion reserves the right to monitor CUiNet traffic as
appropriate (in Cavion's judgment) for proper operation of
CUiNet and as otherwise required or permitted by law. However,
Cavion does not have the practical ability to control the
conduct of users of CUiNet and assumes no liability for such
conduct.
9. STANDARDS OF USE. If access to CUiNet is provided to CSC for
purposes other than enabling remote access to CSC's co-located
equipment, CSC will use CUiNet and will permit the use of CUiNet only
in a manner that is lawful, consistent with the rights of other users
and third parties, in keeping with accepted Internet etiquette, and
not disruptive to the operations of CUiNet. CSC will provide access
to CUiNet only to its employees, independent contractors and
examiners, and only from equipment located at CSC's facilities. CSC
will communicate the restrictions described in this section to anyone
to whom it provides access. Vendors who use CUiNet to provide
services to CSC must do so by agreement with Cavion. CSC agrees to
comply with any rules and policies posted on CUiNet's web server that
are generally applicable to users of CUiNet. Material breach of this
section will be cause for immediate suspension of service or
termination of agreement.
10. SECURITY. Cavion will take commercially reasonable steps to ensure
that CUiNet interfaces to the Internet are protected using network
firewalls, encryption, and/or other appropriate security measures.
CSC is responsible for (a) the security of network equipment located
at CSC's facility, and (b) safeguarding any passwords or other
validation information assigned to CSC. In addition, while the
private telecommunication circuits between CSC's facility and CUiNet
provide physical security for CSC's unencrypted network traffic,
these circuits are owned and operated by telecommunications providers
and Cavion does not guarantee their security.
11. LIMITED WARRANTIES.
11.1 Cavion warrants CUiNet and the licensed software in
accordance with the limited warranty described in the Limited
Warranty Schedule to this agreement. Cavion may modify this
warranty in its sole discretion, upon at least 30 days notice to
CSC. This warranty is exclusively for the benefit of CSC, and
is not transferable without Cavion's prior written consent.
11.2 Each party represents and warrants to the other that (a) it
owns or has the right to use all material contained in the link
file and all materials at the target site, and (b) the use of
the link file as contemplated by this agreement does not violate
any criminal laws or infringe the copyright, trademark or other
intellectual property rights of any third party.
12. LIMITATION OF LIABILITY. In no event will either party be liable for
lost data, lost profits, or any other incidental, consequential or
exemplary damages, even if the party is aware of the possibility of
such damages. In no event will either party's liability for any
claim related to this agreement exceed the amount paid by the other
party under this agreement during the six months prior to the claim,
except in the case of the liable party's gross negligence or willful
misconduct.
13. CONFIDENTIALITY.
13.1 "Confidential information" means any and all confidential
business information concerning either party that is disclosed
to the other party in connection with this agreement, including
all confidential information disclosed to CSC concerning Cavion
technology and including the terms of this agreement. Any
confidential financial information of CSC users or their members
to which Cavion may have access as network administrator will be
treated as confidential information of CSC. "Confidential
information" does not include information which the recipient
can show (a) is public (other than through the recipient's
actions), (b) was rightfully disclosed to the recipient by a
third party, or (c) was independently developed by the
recipient. Information that is not otherwise confidential will
not be treated as confidential merely because it is disclosed
under this agreement.
13.2 Each party (and its employees and agents) (a) will use the
same degree of care (and at least a reasonable degree of care)
to prevent the unauthorized disclosure or use of confidential
information as it uses to protect its own confidential
information of a similar nature, and (b) will immediately notify
the disclosing party upon discovery of any loss, unauthorized
disclosure, or unauthorized use of confidential information.
13.3 Upon termination of this agreement, or at any time upon the
request of the disclosing party, the recipient will promptly
return or destroy all confidential information in any form
(including computer media), and the recipient will not retain
any copies of confidential information in any form.
Notwithstanding the preceding sentence, Cavion may keep archival
copies of network traffic as required in Cavion's discretion for
proper operation of CUiNet. Cavion will not be required to
return or destroy these copies, but will continue to treat them
as confidential information under this section as long as they
are retained.
13.4 Any breach of this section will cause the disclosing party
irreparable harm for which it cannot be adequately compensated
in damages. The disclosing party will therefore be entitled, in
addition to any remedies otherwise available, to injunctive and
other equitable relief, without posting bond, to enforce this
section and to prevent any breach of this section. The
provisions of this section will survive termination of this
agreement for the longest of the following: (a) two years, (b)
in the case of archive copies as described in the preceding
subsection, any period for which Cavion retains such copies, or
(c) in the case of any trade secret, as long as such information
remains a trade secret.
14. INDEMNITIES. Each Party indemnifies the other (and its affiliates
and agents) against all losses arising out of any claim that
materials of the indemnifying party infringe the copyright, trademark
or other intellectual property rights of any third party. For
purposes of this section, "losses" means all loss, liability or
expense (including reasonable attorney and witness fees and
expenses), and "materials" of a party means any technology or content
supplied by that party for use or publication on CUiNet or the
Internet. CSC indemnifies Cavion (and its affiliates and agents)
against all losses arising out of any use of the licensed software by
anyone to whom CSC or any CSC user provides services using the
licensed software. If access to CUiNet is provided to CSC for
purposes other than enabling remote access to CSC's co-located
equipment, CSC indemnities Cavion (and its affiliates and agents)
against all losses arising out of any use of CUiNet by anyone to whom
CSC provides access. In each case, the indemnity is subject to the
conditions that:
(a) the indemnifying party is notified of the claim in a
timely manner;
(b) the indemnified party provides all reasonable
assistance to defend against the claim at the indemnifying
party's expense; and
(c) the indemnifying party is given control of the defense
and settlement.
If any materials are held or are believed by the indemnifying party
to infringe, the indemnifying party will have the option, at its
expense, to (a) modify the materials to be non-infringing, (b) obtain
for the indemnified party the right to continue using the materials,
or (c) terminate the use of the materials under this agreement. The
provisions of this section will survive termination of this agreement
for a period equal to the statute of limitations governing the
indemnified claim and will continue to apply to any claim filed
within that period.
15. TERM AND TERMINATION.
15.1 The term of this agreement will be for one year from the
date hereof. Thereafter, this agreement will automatically
renew for additional one year periods unless(a) terminated by
either party by notice at least 180 days prior to the renewal
date, or (b) replaced by a new agreement governing access to
CUiNet and the network services.
15.2 Either party may terminate this agreement upon notice to
the other:
(a) if the other party materially breaches any of its
obligations under this agreement and such breach is not
cured within 60 days after notice thereof; or
(b) if insolvency proceedings pursuant to any federal or
state law am filed by the other party, or are filed against
the other party and not dismissed within 60 days; if
substantially all of the assets of the other party are
transferred to an assignee for the benefit of creditors, a
receiver or a trustee in bankruptcy; if the other party is
adjudged bankrupt; or if the other party ceases to carry on
business.
15.3 Termination of this agreement will not be exclusive of any
other remedy available under this agreement or applicable law.
Upon termination, each party will promptly make any payments
owed to the other party. Within 30 days after termination, each
party will return (or will provide reasonable access to its
facilities for the other party to retrieve) any equipment in its
possession that belongs to the other party. Cavion will
reasonably cooperate with CSC in any necessary transfer of CSC
IP addresses.
16. DISPUTES. Except as otherwise agreed, any dispute concerning this
agreement will be resolved as follows:
16.1 If either party believes that a dispute cannot be resolved
by informal negotiation, the matter will be submitted to
mediation. The parties will agree upon a neutral impartial
mediator experienced in the field of interactive electronic
networks. At the commencement of the mediation, the parties
will agree upon (a) a procedure for exchange of information
related to the dispute, and (b) ground rules and a schedule for
conducting the proceeding before the mediator.
16.2 If a dispute is not settled pursuant to mediation within
the agreed time period, or if any party will not participate in
the mediation, the dispute will be submitted to binding
arbitration in Denver, Colorado, in accordance with the rules of
the CPR Institute for Dispute Resolution. The arbitration will
be by a single arbitrator (or, if the amount in controversy is
greater than $100,000, by three arbitrators, none of whom will
be appointed by either party) experienced in the field of
interactive electronic networks. The arbitration will be
governed by the United States Arbitration Act, and judgment upon
the award may be entered by any court having jurisdiction
thereof. The arbitrators will not be empowered to award damages
in excess of actual damages, but will be empowered (not
required) to require any party to pay the reasonable attorney
fees, expert witness fees, and other arbitration costs of any
other party.
16.3 Except as specified in section 13.4, the procedures
described in this section will be the exclusive procedures for
the resolution of disputes; provided, however, that either party
may seek preliminary judicial relief in Denver, Colorado, if in
the judgment of that party such relief is necessary to avoid
irreparable damage. Despite the initiation of any such judicial
proceedings, the parties will continue to participate in good
faith in the mediation or arbitration. Any cause of action
either party may have with respect to this agreement will be
barred unless it is commenced within one year after the cause of
action arises, is discovered, or should have been discovered
with the exercise of reasonable diligence.
17. GENERAL.
17.1 The parties are independent contractors. Neither party is
an agent or partner of the other, or has the right to incur any
obligation on behalf of the other. Each party may use the
other's name and trademarks only with the other's prior written
consent (except that Cavion may use CSC's name in any listing of
CUiNet clients). Upon termination of this agreement, all use of
such names and trademarks will immediately be discontinued, and
each party will return to the other all promotional materials
and other items bearing the other's name or trademarks that are
in its possession. Each party will set its own prices for the
services to which clients are referred under this agreement.
17.2 Neither party will be liable for any delay or failure in
its performance under this agreement (except for payment
obligations) directly or indirectly due to acts of the other
party or its agents, or to causes beyond the control of the
delaying party (including equipment failure, utility failure,
casualty, emergency conditions, acts of governmental
authorities, labor disputes, and acts of suppliers,
telecommunications providers or other third parties).
17.3 Notices under this agreement will be in writing and will be
effective when received by certified mail, overnight courier or
hand delivery to the address set forth below (as may be changed
from time to time by written notice). Refusal to accept
delivery will be deemed receipt.
17.4 During the term of this agreement, neither party will
solicit for employment any current employee of the other party,
or attempt to persuade any current employee of the other party
to terminate such employment.
17.5 Any press release or other public announcement regarding
this agreement will be jointly approved in advance by Cavion and
CSC. However, it is understood that Cavion may be required to
disclose this agreement and the transactions contemplated hereby
in connection with Cavion's initial public offering currently on
file with the Securities and Exchange Commission.
17.6 This agreement will be binding upon the assigns and
successors in interest of Cavion and CSC. Either party may
assign this agreement to an affiliate, or as collateral for
financing purposes, and Cavion may assign this agreement to a
purchaser of CUiNet, without the consent of the other party.
Neither party may otherwise assign this agreement without the
other party's written consent, which will not unreasonably be
withheld.
17.7 This agreement is governed by the laws of the State of
Colorado. No provision of this agreement may be waived or
modified except in writing signed by CSC and Cavion. This
agreement (including the Services Schedule as modified by the
parties from time to time) is the entire agreement between the
parties as to its subject matter, and supersedes any other
communications between the parties. This agreement may be
executed in counterparts, each of which will constitute an
original. If any provision of this agreement is found to be
invalid or unenforceable, such provision will be modified (in
the affected jurisdiction) to the minimum extent required, and
the remainder hereof will not be affected.
IN WITNESS WHEREOF, the parties have executed this License and
Referral Agreement as of the date written below.
CARDINAL SERVICES CORPORATION CAVION TECHNOLOGIES, INC.
By: s/ Pete Kneisler By: /s/ David J. Selina
Pete Kneisler, President David J. Selina, President
Cardinal Services Corporation Cavion Technologies, Inc.
1500 Page Mill Road 7475 Dakin Street, Suite 607
Palo Alto, California 94304 Denver, Colorado 80221-6920
Attn: President Attn: President
Date:September 27, 1999
SERVICES SCHEDULE TO
LICENSE AND REFERRAL AGREEMENT
1. LICENSED SOFTWARE
-----------------
Subject to the terms of this agreement, CSC licenses Cavion's proprietary
software for the network services indicated below:
(x) SECURE INTERNET TRANSACTIONAL BANKING SERVICES
This service enables credit union members to retrieve account
information and perform a variety of interactive account transactions
via the Internet.
(x) SECURE INTERNET BILL PAYMENT SERVICES
This service enables credit union members to set up and modify online
bill payment through a third party settlement agent, via the
Internet.
(x) KIOSK SERVICE
This service allows a credit union to set up remote kiosks (with
hardware provided by a third party vendor) to provide general service
information concerning the credit union, or to provide member account
information and enable interactive account transactions.
Subject to the terms of this agreement, CSC licenses Cavion's proprietary
interface software to credit union host data processing programs, as
available from time to time throughout the term of this agreement, for use
with the network services programs described above.
2. PRICING SUMMARY
---------------
CSC agrees to pay the following fees in connection with this agreement:
Secure Internet Transactional Banking Software
Software, hardware and set-up fees: $ 17,000 per user
Monthly
recurring fee:
850 per month
per user
Secure Internet Bill Payment Software
Software and
set-up fees:
4,250 per
user
Monthly
recurring fee:
425 per month
per user
Kiosk software
Software and
set-up fees:
4,250 per
user
Monthly
recurring fee:
425 per month
per user
Cavion interfaces to host data processing programs N/C
Co-location of CSC provided servers 500 per month
per server
Set-up for CUiNet connection -----
[DESCRIBE BANDWIDTH] ----- per
month
EQUIPMENT SCHEDULE TO
LICENSE AND REFERRAL AGREEMENT
CSC's set-up fees described in the Services Schedule include purchase of
the equipment described below:
[LIST PURCHASE EQUIPMENT]
LIMITED WARRANTY SCHEDULE TO
LICENSE AND REFERRAL AGREEMENT
Except as described in section 8.3 of this agreement, CUiNet will be
online and available 24 hours per day, 365 days per year. The licensed
software will be capable of performing die functions described in the
online documentation associated with the software, for the term of this
agreement, provided the software is used with an approved web browser and
otherwise in accordance with the documentation. Cavion does not guarantee
that operation of CUiNet or the licensed software will be uninterrupted or
error-free. Cavion is not responsible for network unavailability caused
by CSC's in-house equipment, equipment of the CSC users or their members,
telecommunications circuits or the Internet. CSC is responsible for
selecting which of the telecommunications circuits offered by CUiNet will
be used, and for the adequacy of the telecommunications circuit to carry
CSC's traffic over CUiNet. Warranty protection for equipment sold to CSC
under this agreement will be as provided by the equipment manufacturer.
Claims for breach of this warranty should be submitted in writing,
including as much detail as possible concerning the circumstances of the
problem. If Cavion is unable to correct the problem (with CSC's
cooperation) within 30 days, Cavion will refund the monthly charges
relating to the service in which the problem is experienced, prorated for
the affected period.
This limited warranty sets forth Cavion's exclusive warranties with
respect to CUiNet and the licensed software. CAVION DISCLAIMS ANY OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY
PARTICULAR PURPOSE, TITLE, AUTHORITY OR NONINFRINGEMENT.
USER TERMS SCHEDULE TO
LICENSE AND REFERRAL AGREEMENT
1. SECURITY. User is responsible for (a) the security of network
equipment located at User's facility, (b) validating the transactions
of its members, including assigning passwords, and (c) safeguarding
any passwords or other validation information assigned to User or
User's members.
2. LIMITED WARRANTIES. The only warranty applicable to the licensed
software is the warranty expressed in the Limited Warranty Schedule
to this agreement. CSC will not provide any other warranty to its
users with respect to the licensed software, and CSC's users will
agree to a disclaimer of any other warranties at least equivalent to
that expressed in the Limited Warranty Schedule.
3. LIMITATION OF LIABILITY. User is exclusively responsible for all
financial risks associated with access to and use of the network
services by User's members, including validation of all transactions.
In no event will CSC or its suppliers be liable for lost data, lost
profits, or any other incidental, consequential or exemplary damages,
even if CSC or its supplier is aware of the possibility of such
damages. In no event will CSC's or its suppliers' liability for any
claim related to this agreement exceed the amount paid by User under
this agreement during the six months prior to the claim, except in
the case of CSC's or its suppliers' gross negligence or willful
misconduct.
4. OWNERSHIP AND LICENSE. As described above, CSC may grant to Users a
nonexclusive nontransferable sublicense to use the network services
as provided by CSC, or to use a copy of the licensed software
installed by Cavion to provide to the User's members the
corresponding network services. This license will not include rights
to (a) use any Cavion technology for any other purpose, (b) modify,
translate, or merge any network services software with another
program, (c) create a derivative work based on any Cavion technology,
or (d) sublicense or transfer any Cavion technology to any third
party. User will not reverse-engineer, disassemble, decompile, or
make any attempt to discover the source code of the network services
software. User will not copy the network services software, except
for temporary browser-embedded copies as required to run the licensed
software. All rights not explicitly granted to User will be reserved
to CSC and its suppliers.
5. CONFIDENTIALITY. User will agree to confidentiality protection for
the licensed software at least equivalent to that expressed in
section 13.
6. INDEMNITIES. User will agree to indemnify CSC and its suppliers on
terms at least equivalent to those expressed in section 14.