License and Services Agreement - Fidelity Asset Management Services LLC and BancCorp Systems Inc.
LICENSE AND SERVICES AGREEMENT
This Agreement is entered into this ___ day of May, 1996, by and
between Fidelity Asset Management Services, LLC ("Licensor"), a Delaware
limited liability company with a principal place of business in Boston,
Massachusetts, and BancCorp Systems, Inc. ("Licensee"), a North Carolina
corporation with its principal place of business in Amarillo, Texas.
BACKGROUND STATEMENT
Licensee entered into an Agreement with Federated Administrative
Services, Inc. and two related entities ("Federated") dated as of June 1, 1994
(the "Federated Agreement") pursuant to which Licensee developed certain
software for Federated. Broadway & Seymour, Inc. ("BSI"), Licensee, Licensor's
assignor and certain other parties have entered into an Asset Purchase
Agreement, dated as of April 10, 1996, as amended (the "Purchase Agreement")
pursuant to which Licensee has transferred and assigned substantially all of
its assets to Licensor. Licensee has not assigned the Federated Agreement to
Licensor and the sole purpose of this Agreement is to ensure that Licensee will
be able to continue complying with its obligations under the Federated
Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree for themselves, their
permitted successors and assigns as follows:
1. LICENSE Licensor hereby grants to Licensee and Licensee hereby
accepts from Licensor, subject to the terms and conditions of this Agreement, a
limited, nonexclusive, worldwide, royalty-free, nontransferable right and
license to use, reproduce, modify, display, distribute and create derivative
works of all versions of the software listed on Schedule A, attached hereto and
incorporated herein, including the object code and source code therefor and all
documentation relating thereto, and any generally commercially available
up-grades or revisions thereto developed by Licensor during the term hereof
(the "Software"), subject to the following conditions and restrictions:
1.1. Restricted Use. Licensee may exercise the rights
granted above solely for the purpose of complying with its continuing
obligations under the Federated Agreement and for no other purpose whatsoever.
Upon the expiration or termination of the Federated Agreement and Licensee's
obligations thereunder, Licensee shall have no further right of any nature
whatsoever in the Software or the related documentation.
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1.2. Sublicensing; Transfer. Except to the extent necessary
to fulfill its continuing obligations under the Federated Agreement, or as
otherwise provided herein, Licensee may not sell, sublicense, convey, assign,
or otherwise transfer the Software or any Modifications (as hereinafter
defined) to any third parties without Licensor's prior written consent, which
may be withheld for any or no reason.
1.3. Copying. Except to the extent necessary to fulfill its
continuing obligations under the Federated Agreement, the Software and
Modifications may only be copied for distribution to the Licensee's facilities,
or for archival or back-up purposes.
1.4. Notices. All copies of the Software and Modifications
shall reproduce the Licensor's copyright and confidentiality notices, to the
extent that the Software and Modifications provided by the Licensor contain
such notices.
2. MODIFICATIONS.
2.1. Development of Modifications. To the extent necessary
to fulfill its continuing obligations under the Federated Agreement, the
Licensee may modify, develop enhancements to, or refinements or variations of
the Software, or use the Software as a basis for creating alternative software,
or request Licensor, pursuant to the provisions of Section 3.1 below, to do so.
Such modifications or alternative software resulting from such use of the
Software shall be referred to herein as the "Modifications."
2.2. Ownership of Modifications. The Licensee agrees that
all right, title and interest in and to the Modifications created by or on
behalf of the Licensee, shall be and remain in the Licensor. The Licensee
shall promptly deliver to the Licensor the Modifications and any and all
documentation relating thereto, but may retain copies thereof to the extent
necessary to fulfill its continuing obligations under the Federated Agreement.
The Licensee further agrees to cause its employees or agents, as needed, to
execute any and all documents necessary to assign ownership of any and all
rights in the Modifications to the Licensor or to otherwise perfect the
Licensor's rights therein.
2.3. No duty. Except as otherwise provided herein or unless
the parties agree in a separate document, the Licensor has no duty to update,
modify, or enhance the Software for the benefit of the Licensee.
3. SERVICES.
3.1. Provision of Support Services. From time to time, upon
reasonable prior written notice to Licensor, Licensee may request that Licensor
develop such Modifications or perform the support and maintenance services
described in Schedule B attached hereto and incorporated herein ("Support and
Maintenance") as Licensee determines to be required in order to comply with its
continuing obligations under the Federated Agreement. Licensee
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shall only request the development of such Modifications and the performance of
such Support and Maintenance as Licensee determines in good faith is required
in order for Licensee to comply with its continuing obligations under the
Federated Agreement.
3.2. Leased Employee(s). The parties agree that any
development of Modifications or performance of Support and Maintenance pursuant
to this Agreement shall be provided by such Employee(s) of Licensor as Licensor
shall designate, in its sole discretion, which Employee(s) shall be leased to
Licensee on the terms and conditions provided below. Such Employee(s) shall
possess a level of skill and competence consistent with that of skilled and
competent computer industry professionals with a combination of experience at
the systems level and specific experience with the Software appropriate for the
specific task.
3.3. Statement of Work. At the time Licensee submits any
request for the development of Modifications or the provision of Support and
Maintenance pursuant to Section 3.1, the parties shall work together to develop
a schedule for each Modification or for the performance of such Support and
Maintenance and shall agree to a Statement of Work covering the same, which
Statement of Work shall include the estimated duration of the required work
(the "Lease Term").
4. EMPLOYEE LEASING. Upon any request for the development of any
Modification or the provision of Maintenance and Support pursuant to Section
3.1 hereof, Licensee shall enter into a lease arrangement with respect to the
employee(s) designated by Licensor (the "Assigned Employees"), which shall
continue for the duration of the Lease Term and any commercially reasonably
required extension thereof, upon the following terms and conditions:
4.1. Taxes, etc. During the Lease Term, Licensor will be
responsible for all matters related to the payment of federal, state and local
payroll taxes, workers' compensation insurance, salaries and fringe benefits
for the Assigned Employees.
4.2. Direction and Control. Licensee agrees that it shall be
responsible for the direction and control of the Assigned Employees during the
Lease Term, that it shall be solely responsible for the acts, omissions and
work product of such Assigned Employees during the Lease Term, and that it
shall have the sole responsibility for providing all facilities, furnishings,
equipment and supplies for the Assigned Employees.
4.3. Employee Reversion. At any time during the Lease Term,
Licensee may notify Licensor of any of the Assigned Employees whose services
Licensee no longer requires. Such notice shall constitute an "Employee
Reversion" with respect to each Assigned Employee listed in the notice,
effective at midnight on the fifteenth day of the month in which the
notification is received, or at midnight on the last day of that month if
notice is given after the fifteenth day. At the end of the Lease Term or any
extension thereof, there shall automatically occur an Employee Reversion with
respect to all remaining Assigned Employees, effective on
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such date. Following the effective date of an Employee Reversion relating to
any specific Assigned Employee, the Assigned Employee will no longer perform
any services for Licensee and Licensee shall not have any further obligation
with respect to such Assigned Employee.
4.4. Employee Termination. Licensor retains the right to
terminate any Assigned Employee at any time during the term of this Agreement,
without the consent of Licensee, for appropriate cause in accordance with
Licensor's standard personnel policies. Licensor shall consult in good faith
with Licensee before terminating any Assigned Employee. Licensor shall
promptly replace any Assigned Employee who resigns, is terminated, or otherwise
ceases to perform services other than in connection with an Employee Reversion.
4.5. Compensation. In consideration of Licensor providing
the development of Modifications and Software Support and Maintenance requested
in Section 3.1, Licensee shall pay Licensor the leased employee fees specified
in Schedule C.
5. OWNERSHIP RIGHTS. The Licensee hereby acknowledges and agrees that
the Software and all Modifications are the valuable, confidential and secret
property of the Licensor and the Licensor owns all right, title and interest in
and to the Software and Modifications, including, without limitation, all
ancillary and interface system software, all current and future enhancements,
modifications, revisions, upgrades, new releases, and derivative works thereof,
all documentation related thereto, and all copyrights, trade secrets, and
patents therein and/or any registrations in, or the right to register, the
copyrights, trade secrets or patents, and any and all renewals, reversions and
extensions of any such copyrights, trade secrets or patents, in the United
States and every other country in the world.
6. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY. LICENSEE AGREES
THAT THE SOFTWARE AND DOCUMENTATION IS LICENSED HEREUNDER ON AN "AS IS" BASIS
WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, OF ANY NATURE
WHATSOEVER, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL
LICENSOR BE LIABLE FOR LOSS OF PROFITS, USE OR INTERRUPTION OF BUSINESS,
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING
OUT OF OR RELATING TO THE LICENSEE'S USE OF THE SOFTWARE, EVEN IF THE LICENSOR
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. COVENANTS.
7.1. Licensor. Licensor agrees, during the term hereof, that
it will not use or sublicense the Software in a manner that violates Section
2(b) of the Federated Agreement. Licensor further agrees, during the term
hereof, to make available Support and Maintenance
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services to clients of Federated which are valid licensees of the Software,
upon terms and conditions comparable to those commercially available to
licensee's of the Software, generally.
7.2. Licensee. Licensee agrees, during the term hereof, to
comply with its obligations under the Federated Agreement, including its
obligations under Section 2(a) of the Federated Agreement.
8. INDEMNIFICATION. The Licensee agrees to indemnify, defend and hold
harmless the Licensor against any and all claims, liabilities, damages, costs
and expenses (including reasonable attorneys' fees and costs) arising out of or
related to (a) the exercise by Licensee of any of the rights granted to
Licensee herein, (b) the performance of any services as set forth in Section 4
hereof, and (c) any breach by Licensee of any representation, warranty or
covenant of Licensee hereunder. Licensor agrees to indemnify, defend and hold
harmless the Licensee against any and all claims, liabilities, damages, costs
and expenses (including reasonable attorneys' fees and costs) arising out of
any breach of Licensor's obligations under Section 7.1 hereof.
9. MISCELLANEOUS.
9.1. Term. This Agreement becomes effective upon the
execution by both of the parties hereto and shall continue in effect until the
earlier of (a) the expiration or termination of the Federated Agreement and the
obligations of Licensee thereunder or (b) the fifth anniversary date of the
First Installation (as defined in Section 1 of the Federated Agreement), at
which time this Agreement shall terminate and shall have no further effect.
9.2. Successors and Assigns. None of the rights granted to
or obligations assumed by the Licensee hereunder may be assigned, sold,
subcontracted or otherwise transferred without the prior written consent of the
Licensor; provided that Licensee may assign all or any part of its rights or
obligations hereunder to any of its Affiliates (as defined below), but shall
remain fully responsible for the compliance by its Affiliate with all of the
terms, conditions, limitations and restrictions contained herein. As used in
this Agreement, the term "Affiliate" means any entity that, directly or
indirectly, controls, is controlled by, or is under common control with,
Licensee. Any attempt to assign or transfer any of the rights, duties or
obligations under this Agreement in contravention of this paragraph is void.
9.3. Governing Law. This Agreement shall be governed by the
laws of The Commonwealth of Massachusetts.
9.4. Notices. All notices, including notices of address
changes, required to be sent hereunder shall be in writing and shall be deemed
to have been given when received by certified mail, return receipt requested,
or sent by telefax to the party at the address set forth with its signature
below.
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9.5. Amendment and Modification. This Agreement may be
amended, modified or supplemented only by a written agreement signed by both
parties.
9.6. Interpretation of Agreement. In the event that any
provision of this Agreement is held to be invalid or unenforceable, the
remaining provisions of this Agreement will remain in full force and effect.
The waiver by any party of any default or breach of this Agreement shall not
constitute a waiver of any other subsequent default or breach.
9.7. Multiple Counterparts. This Agreement may be executed
in several counterparts, all of which taken together shall constitute one
single Agreement between the parties.
9.8. Section Headings. The section and subsection headings
used herein are for reference and convenience only and shall not enter into the
interpretation hereof.
9.9. Entire Agreement. This Agreement and the Purchase
Agreement constitute the complete understanding between the parties with
respect to the subject matter hereof and supersedes all previous written or
oral agreements and representations.
9.10. Relationship of Parties. This Agreement is not
intended to and does not create a partnership or joint venture relationship
among the parties. No employee of Licensor shall be entitled to any Licensee
or BSI benefits and no such employee is covered by the workers compensation
insurance of Licensee or BSI. Licensor has no authority to enter into any
contracts or agreements on behalf of Licensee or to make any warranties or
representations that purport to bind Licensee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
the year and date first above written.
BANCCORP SYSTEMS, INC. FIDELITY ASSET MANAGEMENT SERVICES, LLC
By: /s/ Alan C. Stanford By: /s/ Paul J. Hondros
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Title: President Title: President
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NOTICE: NOTICE:
Broadway & Seymour, Inc. 82 Devonshire Street
128 South Tryon Street, Suite 1000 Boston, MA 02110
Charlotte, North Carolina 28101-5050 Attn: Jay Freedman, Esq.
Fax: (704) 344-3542 Fax: (617) 476-0932
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SCHEDULE A
TO
LICENSE AND SUPPORT SERVICES AGREEMENT
TRUSTPROCESSOR SOFTWARE
Technical Description of Trust Processor
TrustProcessor is a general ledger based system that is used by bank trust
departments, trust companies, private family trusts, non-profit foundations,
universities and religious organizations to manage personal trusts, charitable
trusts, pooled funds and common funds.
TrustProcessor International is a general ledger based asset management system
used by private off-shore banks for asset management and shareholder accounting
for mutual funds. Current value for bid and offer price can be calculated for
each mutual fund through the system's Net Asset Value Calculator. Calculations
may be defined differently for each fund and may be run on any frequency as
needed. A Shareholder Register may also be produced for each fund. Provides
multi- currency functionality.
The Key Functionality and Features of TrustProcessor Include:
- General Ledger Based
- Trade/Settlement Date Accounting
- Manages Charitable Trusts
CRUTS, CRATS, Pooled
Income Funds
- Manages Mutual Funds and
Common Trust Funds
- Consolidates Multiple Asset
Managers
- Self Directed IRA's
- Customized Reports and Forms
- Multiple Report Controllers
- Purchase/Sale Advice Notices
- On-Line Customer Inquiry
- 1099 Forms/Magnetic Media
Reporting
- Central Name & Address File
- Automatic Market Pricing and
Dividend Mapping
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- Automatic Cash Sweep and
Interest Accruals
- Expense and Beneficiary Check
Writing
- Regenerating Tickler File
- Automatic Trust Fee Calculations
- Multi-Level System Security
- Automatic Conversion of
Customer Data, Balances,
and History available
- Portfolio Modeling
Add-on Module available
- Net Asset Value Calculator
Add-on Module available
- Interfaces to IRS Tax Form
Preparation Software
- Interfaces with several Cash
Management Firms
- Interfaces with Lotus 1-2-3
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SCHEDULE B
TO
LICENSE AND SUPPORT SERVICES AGREEMENT
SUPPORT AND MAINTENANCE
"Support and Maintenance" means customary maintenance services
relating to the Software, including, without limitation, (i) the installation
of modifications and improvements to the Software in order to prevent or remedy
unintended results, to provide greater efficiency and ease of operations, or to
fulfill federal regulatory requirements, and (ii) the provision of cooperation
and assistance in obtaining and providing relevant information, documentation
and related materials concerning errors, issues, needs and priorities and in
implementing support and maintenance corrections and procedures.
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SCHEDULE C
TO
LICENSE AND SUPPORT SERVICES AGREEMENT
LEASED EMPLOYEE FEES
Development of Modifications Services:
Licensor's then prevailing rates
Support and Maintenance Services:
Licensor's then prevailing rates
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