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In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be in any way impaired thereby, it being intended that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law. | severability | Given the provision, provide with the correct label for the given provision |
In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, such Lender shall remain the owner of its Revolving Credit Obligations and the holder of any promissory note issued to it hereunder in evidence thereof for all purposes under the Loan Documents, all amounts payable by the Borrowers under this Agreement shall be determined as if such Lender had not sold such participating interests, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under the Loan Documents, except that, for purposes of Article IV and Section 2.14(E) hereof, the Participants shall be entitled to the same rights as if they were Lenders; provided, however, no Participant shall be entitled to receive any greater amount pursuant to Article IV hereof than such Participant’s transferor Lender would have been entitled to receive in respect of the amount of the participation transferred had no such transfer occurred, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable Participation. | participations | Given the provision, provide with the correct label for the given provision |
(subject to the terms of Section 3.3. | enforcement by administrative agent | Given the provision, provide with the correct label for the given provision |
Buyer has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Buyer’s creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Buyer’s assets, which remains pending, or (iv) suffered the attachment or other judicial seizure of all, or substantially all of Buyer’s assets, which remains pending. | bankruptcy | Given the provision, provide with the correct label for the given provision |
Nothing herein shall be deemed to prohibit the Company or the Board from amending or terminating any such plan in its sole and absolute discretion. | benefits | Given the provision, provide with the correct label for the given provision |
In the event of any inconsistency between the provisions of this Award Agreement and the Plan, the Plan shall govern. | relation to plan | Given the provision, provide with the correct label for the given provision |
Each International Loan Party is subject to civil and commercial law of the Specified Jurisdictions with respect to its International Secured Obligations under this Agreement and each other International Loan Document to which it is a party. | immunity | Given the provision, provide with the correct label for the given provision |
Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender Parties, on the one hand, and such Loan Party, its stockholders or its affiliates, on the other. | no fiduciary duty | Given the provision, provide with the correct label for the given provision |
Pursuant to Section 5, the Corporation shall deliver to the Employee one Share for each earned Performance Share (and, as applicable, for the accrued dividend equivalents) as determined in accordance with the provisions set forth in the Addendum and this Agreement. | settlement of awards | Given the provision, provide with the correct label for the given provision |
The Loan Parties’ obligations under this Section 3.9 shall survive the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. | indemnity | Given the provision, provide with the correct label for the given provision |
Without duplication, after any payment of Taxes by any Loan Party or the Administrative Agent to a Governmental Authority as provided in this Section 2.17, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by applicable Requirements of Law to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be. | taxes | Given the provision, provide with the correct label for the given provision |
Immediately upon the issuance by an Issuer of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) in accordance with the terms and conditions of this Agreement and without any further action on the part of the applicable Issuer or any Lender, such Issuer shall be deemed to have sold and transferred to each Lender, and each Lender shall be deemed irrevocably and unconditionally to have purchased and received from such Issuer an undivided interest and participation, to the extent of such Lender’s Ratable Portion of the Commitments, in such Letter of Credit and the obligations of the applicable Applicant with respect thereto (including all Letter of Credit Obligations with respect thereto) and any security therefor and guaranty pertaining thereto. | participations | Given the provision, provide with the correct label for the given provision |
The waiver in this Section 10 shall be effective only in this specific instance and for the specific purpose set forth herein and does not allow for any other or further departure from the terms and conditions of the Credit Agreement or any Other Document, which terms and conditions shall continue in full force and effect. | waivers | Given the provision, provide with the correct label for the given provision |
The Purchaser is not required to be registered as a broker-dealer under Section 15 of the Exchange Act. | purchaser status | Given the provision, provide with the correct label for the given provision |
Each Borrower shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect. | guarantees | Given the provision, provide with the correct label for the given provision |
The Company covenants and agrees that should any claim be made against Purchaser for any commission or other compensation by any broker, finder, person, firm or corporation, including without limitation, the Broker, based upon the Company’s engagement of such person in connection with this transaction, the Company shall indemnify, defend and hold Purchaser harmless from and against any and all damages, expenses (including attorneys’ fees and disbursements) and liability arising from such claim. | brokers | Given the provision, provide with the correct label for the given provision |
Capitalized terms used herein and not otherwise defined herein shall have the respective meaning set forth in the SPA. | capitalized terms | Given the provision, provide with the correct label for the given provision |
At least thirty (30) days prior to Tenant's surrender of possession of any part of the Premises, Tenant shall provide Landlord with a facility decommissioning and Hazardous Materials closure plan for the Premises (" Exit Survey ") prepared by an independent third party state-certified professional with appropriate expertise, which Exit Survey must be reasonably acceptable to Landlord. | surrender | Given the provision, provide with the correct label for the given provision |
No license or immunity is granted under this Agreement by Enzo, either directly or by implication, estoppel, or otherwise, to any Person acquiring Illumina Products for the modification or combination by such Person of Illumina Products with other items other than (i) in the ordinary and intended manner in the ordinary course of use of Illumina Products, (ii) as specified by Sections 2.2 and 2.3, or (iii) as otherwise permitted by the law of patent exhaustion. | modifications | Given the provision, provide with the correct label for the given provision |
To request a Revolving Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one (1) Business Day before the date of the proposed Borrowing; provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e) may be given not later than 10:00 a.m., New York City time, on the date of the proposed Borrowing. | notice by the borrowers | Given the provision, provide with the correct label for the given provision |
Further, the Executive shall not, directly or indirectly, render services to any other person or organization without the consent of the Company or otherwise engage in activities that would interfere significantly with his faithful performance of his duties hereunder. | exclusive services | Given the provision, provide with the correct label for the given provision |
Context:
Exhibit 4.5 SUPPLY AGREEMENT between PROFOUND MEDICAL INC. and PHILIPS MEDICAL SYSTEMS NEDERLAND B.V.
THIS AGREEMENT is made July 31, 2017 BETWEEN: PROFOUND MEDICAL INC., a company incorporated under the laws of the province of Ontario and having its registered address at 2400 Skymark, Unit 6, Mississauga, Ontario L4W 5K5, Canada (hereinafter referred to as "Customer") - and - PHILIPS MEDICAL SYSTEMS NEDERLAND B.V., a company incorporated under the laws of the Netherlands with its principal place of business at Veenpluis 4-6 5684 PC Best, the Netherlands (hereinafter referred to as "Philips") Customer and Philips hereinafter also collectively referred to as the "Parties" and individually as a "Party". WHEREAS: A. Pursuant to the Asset and Share Purchase Agreement (the "Purchase Agreement") entered into on June 30, 2017 by Customer, Koninklijke Philips NV ("Philips NV") N.V. and Customer agreed to execute and deliver (or cause to be executed and delivered) certain ancillary agreements one of which is this Agreement; B. Prior to the consummation of the transactions contemplated by the Purchase Agreement, Philips manufactured the Product in-house and did not outsource the manufacturing to an independent facility, and as a result, Philips has intimate knowledge of the manufacturing process and requirements for the Product; C. Customer originally desired to take over responsibility for the manufacture of the Product immediately upon closing of the transactions contemplated by the Purchase Agreement; D. As Philips historically manufactured the Product in-house, to enable Customer to prepare for and realize the transition of the manufacturing of the Product to Customer's organization, Customer requires the assistance of Philips to continue manufacturing the Product until such time as the manufacturing process can be transitioned to Customer hereunder; E. Until such time as the manufacturing of the Product can be transitioned to Customer in accordance with the terms of this Agreement, Philips agrees to supply, as a contract manufacturer to Customer, on a temporary basis for the Term (as defined herein), the Product, and Customer wishes to buy such Products from Philips under this Agreement;
F. Customer acknowledges and agrees that it assumes all obligations and liabilities as the legal manufacturer of the Product as from the Effective Date, on the terms and conditions set out in this Agreement. NOW IT IS HEREBY AGREED as follows: 1. DEFINITIONS The following terms used in this Agreement shall have the meaning set forth below: "Affiliate" means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the specified Person. As used in this definition, "control", "controlled by" and "under common control with" means possession, directly or indirectly, of power to direct or cause the direction of management or policies of such Person (whether through ownership of securities or other partnership or ownership interests, as trustee, personal representative or executive or by contract, credit agreement or otherwise), provided that in any event, any Person which owns directly, indirectly or beneficially 50% or more of the securities having voting power for the election of directors or other governing body of a corporation or 50% or more of the partnership interests or other ownership interests of any other Person will be deemed to control such Person. "Agreement" means this Supply Agreement including any and all of its Schedules as attached hereto and as may be amended or supplemented from time to time in accordance with the provisions hereof. "Business Day" means any day other than a Saturday, Sunday or statutory holiday, in the Province of Ontario or the Netherlands. "Claim" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at Law, in equity or otherwise. "Confidential Information" means any information, provided in whatever form (including in written, electronic or oral form) or medium, which relates to either Party's or its Affiliates' business, products (hardware and software), technology, business plans, product plans, customers, customer information, specifications, designs, costs, prices, business opportunities, Know How, trade secrets, inventions, techniques, processes, algorithms, software programs, schematics and any other business or technical information disclosed by the Disclosing Party to the Receiving Party in connection with this Agreement. "Confirmation" has the meaning ascribed thereto in clause 4.4. "Contract Year" means the twelve (12) month period beginning on the Effective Date, and each subsequent twelve (12) month period during the Term.
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"Customer" has the meaning ascribed thereto in the Preamble. "Customer Indemnified Parties" has the meaning ascribed thereto in clause 10.1. "Delivery" means the actual delivery of the Product to Customer and the acceptance by Customer of the Product in accordance with clause 7.1. "Disclosing Party" as the meaning ascribed thereto in clause 14.1. "DMR" has the meaning ascribed thereto in clause 5.3. "EDI" means electronic data interchange. "Effective Date" means the Completion Date as defined in the Purchase Agreement. "Encumbrance" means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership. "Export Regulations" has the meaning ascribed thereto in clause 16.1. "Factory Test Report" means the report, the content of which is set forth in Schedule 4, that Philips shall prepare and maintain, identifying the factory tests Philips completes on the Product prior to Delivery to support its compliance with the Specifications. "Force Majeure" has the meaning ascribed thereto in clause 0. "Forecasts" means those documents setting out anticipated demand for the Product as to be more particularly described in clause 3.2. "Governmental Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction. "Intellectual Property Rights" means, in any and all jurisdictions, all: (a) patents and applications therefor, including all continuations, continuations-in-part and provisionals and patents issuing thereon, and all reissues, re-examinations, substitutions, renewals and extensions thereof (collectively, "Patents"); (b) trademarks, service marks, trade names, trade dress, logos, corporate names, Internet domain names or uniform resource locators used in connection with any global computer or electronic network, together with all translations, adaptations, derivations and combinations thereof, and other source or business identifiers, together with the goodwill associated with any of the foregoing, and all applications, registrations, renewals and extensions thereof; (c) industrial designs, designs and design rights; (d) copyrights, works of authorship and moral rights, and all registrations, applications, renewals, extensions and reversions thereof; (e) trade secrets, discoveries, concepts, ideas, research and development, Know How, formulae, inventions, compositions, manufacturing and production processes and techniques, technical data, quality data, procedures, designs, drawings, specifications, databases, and other proprietary or confidential information, including customer lists, supplier lists, pricing and cost information, and business and marketing plans and proposals, which would constitute a "trade secret" under applicable Law, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Patents ("Trade Secrets"); (f) inventions, processes and designs; and (g) software, and all source code, object code, data and documentation relating thereto.
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"Know How" means any and all concepts, ideas, information, data and documents of whatever nature, including, without limitation, drawings, methods, techniques, designs, specifications, photographs, samples, models, processes, procedures, reports, particulars of a technical nature (including, without limitation, any know how related to the manufacturing or design of Products and technical and commercial know how). "Law" means all laws, statutes, ordinances, decrees, judgments, codes, standards, acts, orders, by-laws, rules, regulations, permits, legally binding policies and guidelines and legally binding requirements of all Governmental Authorities. "Lead-Time" means, as applicable, the minimum number of days required between the date of the Purchase Order and the date of Delivery requested in a Purchase Order as such number is listed in Schedule 2. "Losses" has the meaning ascribed thereto in clause 10.1. "New Technology" has the meaning ascribed thereto in clause 13.3. "Other Transaction Documents" has the meaning ascribed thereto in clause 6.6. "Parties" and "Party" have the meaning ascribed thereto in the Preamble. "Permit" has the meaning ascribed thereto in clause 8.2(c). "Person" includes any individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate and a natural person in his or her capacity as trustee, executor, administrator or other legal representative. "Project Manager" has the meaning ascribed thereto in clause 12.8(a). "Project Team" has the meaning ascribed thereto in clause 12.8. "Quality Agreement" has the meaning ascribed thereto in clause 8.1. "Philips" has the meaning ascribed thereto in the Preamble.
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"Philips Indemnitees" has the meaning ascribed thereto in clause 10.1(ii) "Product" means the Sonalleve MR-guided HIFU device which Philips shall manufacture and supply according to this Agreement as specified in Schedule 1,including spare parts. "Production Plan" means the production plan setting forth the delivery limitations as specified in Schedule 3, and as may be updated in accordance with clause 3.1. "Purchase Order" means an order for Products as may be submitted by Customer in accordance with clause 3. "Quality Agreement" means the Quality Agreement as described further in clause 8.1 of this Agreement, as the same may be amended or supplemented from time to time in accordance with the terms thereof. "Receiving Party" as the meaning ascribed thereto in clause 14.1. "Regulatory Transfer Date" has the meaning ascribed to such term in clause 2.3. "Representatives" has the meaning ascribed to such term in clause 14.2. "Required Jurisdictions" [Redacted - Commercially Sensitive] "RPA" means the resale purchasing agreement between the Parties, dated as of the Effective Date. "Specifications" means the specifications for the Product as set out in Schedule 1, as such specifications be amended from time to time in accordance with the terms of the quality agreement (the "Quality Agreement"). "Term" has the meaning ascribed thereto in clause 12.1. "Third Parties" means a Person who is not a Party or an Affiliate of a Party. "Transferred Confidential Information" has the meaning ascribed thereto in clause 14.4. "Transition Plan" has the meaning ascribed thereto in clause 12.8. "VAT" has the meaning ascribed thereto in clause 6.1. 2. GENERAL, SCOPE 2.1 During the Term, Philips shall manufacture and supply and Customer shall purchase the Products ordered by Customer pursuant to Purchase Orders (issued by Customer and accepted by Philips) in accordance with the terms and conditions of this Agreement.
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2.2 The Parties intend for the express terms and conditions contained in this Agreement, including the Quality Agreement and any Schedules and Exhibits hereto or thereto, and in any Purchase Order that are consistent with the terms and conditions of this Agreement to exclusively govern and control each of the Parties' respective rights and obligations regarding the manufacture, purchase and sale of the Products, and the Parties' agreement is expressly limited to such terms and conditions. Notwithstanding the foregoing, if any terms and conditions contained in a Purchase Order conflict with any terms and conditions contained in this Agreement, the applicable term or condition of this Agreement will prevail and such additional, contrary or different terms will have no force or effect. Except for such additional and contrary terms, the terms and conditions of all Purchase Orders are incorporated by reference into this Agreement for all applicable purposes hereunder. Without limitation of anything contained in this clause 2.2, any additional, contrary or different terms contained in any Confirmation (as defined below) or any of Philips's invoices or other communications between the Parties, and any other attempt to modify, supersede, supplement or otherwise alter this Agreement, are deemed rejected by Customer and will not modify this Agreement or be binding on the Parties unless such terms have been fully approved in a signed writing by authorized by both Parties. 2.3 On the Effective Date, Philips (or its Affiliate, Philips Oy) is the legal manufacturer of the Product. Customer hereby covenants and agrees to file with all applicable notified bodies and Governmental Authorities, including but not limited to BSI, Notified Body and ISO Registrar, on a jurisdiction-by-jurisdiction basis, within the applicable time periods for each jurisdiction outlined in the "Transitional Service Level Agreement" (TSLA Number: QR01, TSLA Title: Transfer of Legal Manufacturers), all documentation required or necessary to change the legal manufacturer of the Product in each Required Jurisdiction from Philips Oy to Customer for all applicable regulatory purposes. In order to expedite and achieve such change of legal manufacturer and to achieve the required changes outlined in such Transitional Service Level Agreement, Customer shall fully cooperate with as required by and actively facilitate the above registration process by the applicable notified bodies and Governmental Authorities in each Required Jurisdiction. On a jurisdiction-by-jurisdiction basis, from the date that the legal manufacturer is updated to Customer in such jurisdiction, Philips will supply the Products in such jurisdiction as contract manufacturer of Customer under this Agreement. 2.4 Philips shall provide such reasonable support, assistance and information reasonably requested by Customer and as outlined in the above referenced Transitional Service Level Agreement (including, to achieve the required changes outlined in such Transitional Service Level Agreement) in connection with Customer's transfer of the registrations in respect of the Product from Philips to Customer (as contemplated by clause 2.3 above), including, those services outlined in the Transitional Service Level Agreement, participating in any meeting with the applicable Governmental Authority reasonably requested by Customer and subject to the limitations and the obligations of the Parties under the "Transitional Service Level Agreement" (TSLA Number: QR01, TSLA Title: Transfer of Legal Manufacturers) concluded by the Parties in conjunction with the Purchasing Agreement. 3. DELIVERY CAPACITY, FORECAST 3.1 Philips shall maintain a delivery capacity, which allows Philips to deliver the Products in accordance with the Lead Times, Forecasts and Purchase Orders, but always subject to the supply limitations, if any, outlined in the Production Plan. Such Production Plan may be updated, and the production capacity may be increased only by the Parties' written agreement and any reasonable additional incremental (and documented) investment required to exclusively satisfy such increase shall be borne by Customer. Philips shall not be held liable for rejecting any Purchase Order through which the volume in any Contract Year or the relevant quarter exceeds the volume indicated in the Production Plan.
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3.2 Customer shall provide Philips in good faith on a monthly basis, on the later of (i) seven (7) days prior to the beginning of each calendar month a rolling [Redacted - Commercially Sensitive] forecast for the Products (including the major configuration of each Product such as field strength) ("Forecast") it expects to purchase during such [Redacted - Commercially Sensitive] period. Such Forecast shall be provided in writing or in any other mutually agreed manner of communication (e.g., EDI or email). Notwithstanding any other obligation set forth herein, Customer shall give Philips at least [Redacted - Commercially Sensitive] prior written notice if, during the Term, it intends to discontinue the purchase of any Products hereunder, or if it intends to substantially decrease, versus the Forecast, its purchase demand hereunder. For greater certainty, if Philips (or an Affiliate of Philips) is delayed in delivering any "Forecast" contemplated by the RPA, the Customer's obligations to deliver the Forecast hereunder (solely in respect of that portion of the Forecast that corresponds to the volume of Product to be sold to Philips (or an Affiliate of Philips) pursuant to the RPA) shall be tolled until Philips (or an Affiliate of Philips) delivers the corresponding "Forecast" under the RPA. 3.3 Notwithstanding Customer's obligations pursuant to clauses 3.1 and 3.4, the first [Redacted - Commercially Sensitive] of each Forecast shall constitute a binding commitment of Customer to purchase the quantities of Products set forth in the relevant Forecast for such [Redacted - Commercially Sensitive] period. The Forecast for the period beyond this two (2) month period shall be non-binding except to the extent otherwise provided in clause 3.4. Only Purchase Orders as accepted by Philips, as set forth in clause 3.4 below, constitute an obligation for Philips to actually produce the so ordered Products and no quantities of Products in the Forecast provided by Customer shall constitute an accepted Purchase Order. 3.4 Customer shall have the right to increase or decrease, as the case may be, the [Redacted- Commercially Sensitive] Forecast only within the limitations set forth in the Production Plan per quarter. 3.5 The reasonable and documented costs of all materials, parts and components which have been purchased and paid for by Philips in order to meet Customer's demand as may be concluded, based on the historical operations of Philips in the ordinary course of business, on the basis of Customer's Forecast, shall be reimbursed, at inventory value without additional mark up by Customer against invoice in accordance with the payment terms of this Agreement in such instance where any such materials are not used in the production of any Products to meet any Purchase Orders of Customer within [Redacted - Commercially Sensitive] of the purchase of such materials. The same reimbursement obligation shall apply at the end of the Term for materials, parts and components then available at Philips. Such materials, parts and/or components shall be delivered to Customer [Redacted - Commercially Sensitive]. Upon payment the title of the materials, parts and/or components shall transfer to Customer.
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4. PURCHASE ORDERS 4.1 Customer shall place Purchase Orders in writing (or any other mutually agreed manner of communication, e.g. email or EDI) within the Lead-Time and in accordance with the Forecast provided to Philips in accordance with clause 3. 4.2 Each Purchase Order shall be given in writing (or such other manner of communication (e-mail) as may be mutually agreed from time to time) and shall specify: (a) Purchase Order number; (b) the type (including Product name and codes) and quantity of Products ordered; (c) the requested date of Delivery; (d) destination - ship to address; (e) the services ordered for the ordered Product; and (f) such other information as Philips may reasonably request from time to time. 4.3 No Purchase Order shall be deemed to be accepted by Philips until accepted in writing (including by email or another agreed manner of communication) by Philips or as otherwise contemplated by clause 4.4 below. Philips shall not reject any Purchase Order which is placed in accordance with the Forecast, the Lead Time and otherwise in accordance with this Agreement, unless Philips is entitled to reject on the basis of clause 3.1 or 4.4. 4.4 Philips shall confirm to Customer the receipt of each Purchase Order issued hereunder (each, a "Confirmation") within seven (7) days following Philips's receipt thereof in writing or in any other mutually agreed manner of communication (e.g., EDI or email). Each Confirmation must reference Customer's Purchase Order number, confirm acceptance of the Purchase Order, include a confirmed date of Delivery (which may differ from the requested one in the Purchase Order) or, solely if permitted under this clause 4.4, advise Customer of Philips's rejection of such Purchase Order, the date of acceptance or rejection and the basis for rejection, if applicable. If Philips commences performance under such Purchase Order, Philips will be deemed to have accepted the Purchase Order. Customer may withdraw any Purchase Order prior to Philips' acceptance thereof. Philips may only reject a Purchase Order if (a) the quantity ordered by Customer in such Purchase Order is inconsistent with the quantity in the applicable Forecast in accordance with clause 3.2 (as amended pursuant to clause 3.4), (b) Philips has sent Customer a Notice of termination pursuant to clause 12 or (c) the applicable Purchase Order includes terms and conditions that supplement those contained in this Agreement, which Philips is unwilling to accept. Philips may not cancel any previously accepted Purchase Order hereunder. Customer may not cancel a previously accepted Purchase Order .
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5. DELIVERY, TRANSFER OF RISK AND OWNERSHIP 5.1 [Redacted - Commercially Sensitive - Delivery Details] 5.2 If Customer fails to take Delivery of ordered Products at the date of Delivery acknowledged by Philips, then Philips may deliver the Products in consignment and at Customer's risk and cost. 5.3 Philips will manufacture, handle, properly pack, mark and ship the Products in accordance with Customer's instructions provided to Philips in writing as part of the Device Master Record ("DMR") or as otherwise set forth in the Quality Agreement. The purchase price for the Product includes the costs of packaging as defined in the DMR, but any additional costs resulting from compliance with non-standard packaging specifications (i.e., different from as defined in the DMR) shall be added to the Price. 5.4 [Redacted - Commercially Sensitive - Delivery Details] 6. PRICE AND PAYMENT 6.1 Prices are exclusive of any federal, state or local sales, use or excise taxes and any, value added tax imposed solely as a result of the sale and transfer of the Products (VAT). Philips will list separately on its invoice any tax lawfully applicable to the relevant Purchase Order and payable by Customer, if any, with respect to which Customer does not furnish evidence of exemption. Philips is responsible for remitting any applicable VAT, sales tax, consumption tax, or any other similar tax, in each instance, that were charged to Customer under an applicable Purchase Order, to the appropriate tax authorities in accordance with applicable Laws and required timelines. Philips will issue an invoice containing wording that will allow Customer to take advantage of any applicable "input" tax deduction. 6.2 Purchase prices for the Products are set out in Schedule 1. Prices are firm and fixed for the Term and shall include all costs for work performed, Delivery according to this Agreement and packaging as set forth in clause 5.3 above. 6.3 Any invoices provided by Philips shall refer to the Purchase Order number and any other details required by applicable Law. Philips shall invoice for the purchase prices set out in Schedule 1 on or at any time after Delivery. 6.4 Philips invoices, compliant with the requirements of this Agreement, will be payable within [Redacted - Commercially Sensitive] following the end of the month of the date of invoice. Customer shall make all payments in Euros by check, wire transfer or automated clearing house to the bank account designated by Philips. 6.5 [Redacted - Commercially Sensitive - Late Payment Details] 6.6 [Redacted - Commercially Sensitive]
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7. CONFORMITY OF PRODUCTS 7.1 Philips represents and warrants to Customer that all Products delivered and any services provided hereunder: i. conform to the Specifications on the Delivery Date [Redacted - Commercially Sensitive]; ii. unless otherwise agreed with Customer in writing, are new (do not contain any used or reconditioned parts or materials) and fit for the purposes for which they are intended; iii. are of sound workmanship, good quality and free from defects in construction, manufacture and material [Redacted - Commercially Sensitive]; iv. the manufacturing and shipment of the Product comply in all respects with applicable Laws, regulations, certification requirements, including health and safety standards and all other applicable regulatory requirements for the manufacture and shipment of Products; v. are free and clear of all liens, encumbrances, and other Claims against title; and vii. comply in all respects with the terms of this Agreement and the applicable Purchase Orders. 7.2 [Redacted - Commercially Sensitive] 7.3 [Redacted - Commercially Sensitive] the foregoing warranties will survive any inspection, delivery, acceptance, or payment by Customer and will be enforceable by Customer and its Affiliates, and their successors, assigns, subcontractors, distributors, dealers, agents and customers and all other entities combining, selling or using Products or goods into which Products have been incorporated (together, the "Customer Parties"), for the period set forth in clause 7.4. 7.4 Without prejudice to any other rights accruing under this Agreement or law, the warranties set forth in clause 7.1 will extend for a period of [Redacted - Commercially Sensitive - Warranty Details]. Products repaired or replaced by Philips within the Warranty Term are warranted for the remainder of the original Warranty Term of said Products. 7.5 In respect of failure to meet the Specifications, if Products do not comply with the warranties set forth in clause 7.1, Customer may then, after having consulted Philips as to the most appropriate remedy, elect reasonably to have Products: i. returned to Philips for repair or replacement; ii. repaired or replaced by Philips in the field; or iii. repaired or replaced by Customer in the field, including Products in distributor inventory and Customer's installed base; or
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iv. returned to Philips in exchange for a full refund of the purchase price for the non-conforming Products paid under this Agreement. 7.6 Philips will bear all costs, including transportation and labor costs, in connection with the repair or replacement of, and all other costs or damages Customer may incur as a result of Products not complying with clause 7.1. If Philips agrees that Customer performs the repair, Philips will provide Customer free of charge with any replacement Product or upgrade necessary, and will reimburse Customer for all costs relating to such repair, including any related labor costs. 7.7 If Customer or any relevant Governmental Authority determines that a recall campaign is necessary, Customer will implement such recall campaign at Customer's sole cost and risk. Customer hereby covenants and agrees that it shall bear all costs and expenses related to the implementation of any such recall. In case of a recall of the Product, Philips shall at its sole cost provide full cooperation to Customer in order to achieve an efficient and effective recall by Customer. Philips shall provide such cooperation at its own costs, including internal organizational costs but not including the costs of repair, replacement, installation of Products and logistics related to the recall [Redacted - Commercially Sensitive]. For greater certainty, the obligations of the Parties pursuant to this clause 7.6 shall only apply in respect of Products sold or distributed on or after the Effective Date, and for clarity, to thwe extent there is a recall that involves any Product sold or distributed prior to the Effective Date, the covenants and obligations of the Parties pursuant to this clause 7.6 shall not apply (and shall be addressed by the terms of the Purchase Agreement). 7.8 [Redacted - Commercially Sensitive - Warranty Details] 8. QUALITY AND REGULATORY AND COMPLIANCE WITH LAWS 8.1 The Parties have entered into a Quality Agreement on or around the Effective Date, detailing Customer's requirements, as the legal manufacturer of the Product, with respect to the manufacturing of the Product by Philips as the contract manufacturer. . The Quality Agreement is deemed to be incorporated into this Agreement by reference and made a part hereof, and to the extent of a conflict between the terms of the Quality Agreement and this Agreement, the terms and provisions of this Agreement shall prevail. 8.2 Until, on a jurisdiction by jurisdiction basis, the Regulatory Transfer Date, Philips shall (a) remain the legal manufacturer of the Product according to its own quality management systems. (b) comply, in all material respects, with all applicable Laws, Philips' operation of its business and the exercise of its rights and performance of its obligations hereunder (including, the manufacture of the Product). Without limitation of the foregoing, Philips shall ensure the Product is manufactured in accordance with applicable Laws.
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(c) obtain and maintain all Permits necessary for the exercise of its rights and performance of Philips' obligations under this Agreement, including any Permits required for the manufacture of the Product and the import or any materials and other manufacturing parts used in the production and manufacture of the Product, and the shipment of hazardous materials, as applicable. For purposes of this Agreement, "Permit" means any permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained or required to be obtained, from any Governmental Authority. 9. CHANGES TO PRODUCT 9.1 Any changes to the Product proposed by Philips shall be discussed and handled by the Parties as described in the Quality Agreement. Until execution of the Quality Agreement, the provisions of this clause 9 shall apply. 9.2 Philips shall be entitled to make changes to the Products to comply only with any applicable Laws. Without prejudice to the foregoing, it is understood and agreed that Customer (and not Philips) shall be responsible to notify Philips of any changes required to comply with any applicable Laws, as long as such applicable Laws concern the Products. 9.3 Customer may reasonably request and Philips may propose, in writing, that Philips makes a change to the method of packing, a change to the packaging, or the Products. Such request or proposal (as applicable) will include a description of the requested/proposed change sufficient to allow Philips, using commercially reasonable efforts, to evaluate the feasibility and impact on costs and other terms of such requested change, it being understood that Customer shall pay for any reasonable incremental and documented costs incurred by Philips in connection with such evaluation. All such changes are subject to Philips's written approval (and in case of a change proposal by Philips, Customer's written approval), which cannot unreasonably withheld, conditioned or delayed, it being understood that, if technically feasible and commercially reasonable, Philips shall make any changes required to comply with any applicable Laws upon Customer's written request. Philips will not be obligated to agree or accept any such request for a change nor to proceed with the requested change until the Parties have mutually agreed upon the changes to the Product's Specifications, the price, the implementation costs to be borne by Customer including, without limitation, development and other non-recurring expenses, the cost of inventory and materials that may become obsolete, and any other terms of this Agreement. 9.4 The incremental and documented costs of any changes (including any non-recurring costs such as development and re-engineering costs, as well as costs of changes to the tools used to manufacture the changed Products) shall be borne by Customer. All such charges will be charged to Customer at cost, without any additional markup. 10. INDEMNIFICATION AND LIMITATION OF LIABILITY 10.1 Indemnification by Philips (i) Philips will defend, indemnify and hold harmless Customer and its Affiliates and their respective directors, officers, employees and agents, and their successors, heirs and assigns (the "Customer Indemnitees") from and against all liabilities, costs, damages, Claims and expenses, including reasonable attorney's fees, arising from or related to any actual or alleged [Redacted - Commercially Sensitive - Indemnification Details].
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(ii) Customer will defend, indemnify and hold harmless Philips and its Affiliates and their respective directors, officers, employees and agents, and their successors, heirs and assigns (the "Philips Indemnitees") from and against all liabilities, costs, damages, Claims and expenses, including reasonable attorney's fees, arising from or related to any actual or alleged [Redacted - Commercially Sensitive - Indemnification Details] 10.2 [Redacted - Commercially Sensitive - Indemnification Details] 10.3 [Redacted - Commercially Sensitive - Indemnification Details] 10.4 The limitations and exclusions set forth above in this clause 10 shall apply to the fullest extent permitted by applicable Law. 11. TOOLS 11.1 The Parties will conclude contract(s) managing the ownership and use of tools and equipment needed for the manufacturing of the Products. 12. TERM AND TERMINATION AND TRANSITION 12.1 This Agreement shall come into force on the Effective Date and shall remain in force and effect for a period of [Redacted - Commercially Sensitive - Term Details] , unless this Agreement is extended or previously terminated in accordance with this clause 12, pursuant to clause 15.1 (Force Majeure), or (ii) by the mutual written consent of the Parties (the "Term"). 12.2 Customer, in its sole discretion, may terminate this Agreement, without cause, by providing six (6) months prior written notice to Philips. Philips may terminate this Agreement with immediate effect by written notice to Customer, should Customer not have filed with the specified bodies to transfer the applicable registrations within the time period specified in clause 2.3. 12.3 Without prejudice to any other right or remedy a Party may have against the other Party for breach or non-performance of this Agreement, Each Party may suspend performance of its obligations under the Agreement or terminate this Agreement upon written notice to the other Party if: (a) the other Party files a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; (b) the other Party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding and such petition or proceeding is not dismissed within thirty (30) days from filing of such petition or proceeding;
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(c) the other Party materially breaches any of its obligations under the Agreement, and the breaching failures to cure such breach within [Redacted - Commercial Sensitive - Termination Timing] after it receives written notice from the non-breaching Party to cure same; (d) [Redacted - Commercially Sensitive - Termination Timing] (e) conviction of, or commission by, the other Party or any principal officer, shareholder, employee or any partner of the other Party of any crime or immoral act which may adversely affect the goodwill or reputation of Customer or Philips; 12.4 If Philips causes the Agreement to be terminated, directly or indirectly, then Philips undertakes to sell all Products which have been ordered by Customer but not yet delivered at the date of termination upon the terms and conditions of this Agreement. 12.5 On termination or expiry of this Agreement, each Party shall promptly: (a) return to the other Party all equipment, materials and property belonging to the other Party that the other Party had supplied to the other Party (or its Affiliates) in connection with the supply and purchase of the Products under this Agreement; (b) cooperate with the other Party to arrange for the sale and purchase of the materials, parts and components as referred to in clause 3.4; (c) return to the other Party all documents and materials (and any copies) containing the other party's Confidential Information; (d) erase all the other party's Confidential Information from its computer systems (to the extent possible); and (e) on request, certify in writing to the other Party that it has complied with the requirements of this clause. On termination or expiry of this Agreement Philips shall facilitate an orderly transition of suppliers from Philips to Customer in accordance with the requirements outlined in Section 5.4 (Material Supplier Contracts) of the Purchase Agreement, including using commercially reasonable best efforts to assist Customer to enter into supply agreements directly with the counterparties to the Material Supplier Contracts (as defined in the Purchase Agreement) on terms that are satisfactory to the Customer, acting reasonably.
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12.6 Termination of this Agreement in accordance with this clause 12, is without prejudice to any right to claim for amounts or interest accrued prior to the date of such termination under this Agreement. 12.7 All terms and conditions of this Agreement which are intended (whether expressed or not) to survive the duration or termination of this Agreement will so survive, including, for greater certainty, clauses 2.3, 2.4, 6, 10, 12, 13, 14, and 18. 12.8 Within [Redacted - Commercially Sensitive - Time Period] of the Effective Date, the parties shall negotiate, acting reasonably and in good faith, a transition plan (the "Transition Plan") to provide for a smooth transfer and transition of the manufacturing activities under this Agreement to Customer, an Affiliate of Customer or a third party manufacturer designated by Customer. The Transition Plan shall be negotiated based on the key transition terms outlined in Schedule 5 hereto (the "Transition Plan Term Sheet"). In connection with the negotiation and ultimately implementation of the Transition Plan, Parties shall install a project team which: (a) shall have a manager ("Project Manager"), one from Philips, who has experience in transferring manufacturing actives, and one from Customer, who has experience in setting up manufacturing activities; (b) shall be committed with sufficient capacity - made available by both Parties - to execute the Transition Plan within the given time frame (quantity), and the Parties shall ensure that sufficient and reasonable organizational resources are provided to each such Project Manager to ensure a smooth, uninterrupted and efficient transition of the manufacturing of the Product; (c) shall be sufficiently skilled and experienced with the activities under this Agreement (quality); (d) shall be fully dedicated to the timely and adequate execution of the Transition Plan. 12.9 The Parties shall perform such activities as set forth in the Transition Plan and shall otherwise perform all such obligations in good faith to ensure a smooth transfer of the manufacturing activities under this Agreement to Customer. In connection with the Transition Plan, Customer will pay all reasonable freight cost and any Philips' employee (or third parties engaged by Philips) at [Redacted - Commercial Sensitive - Billing Rate], as needed, in connection with the implementation of the Transition Plan. For greater certainty, Philips will only engage third party support to assist with the transition if such additional support is required in order to implement the Transition Plan and such additional support is previously approved by Customer in writing (not to be unreasonably withheld). If to the opinion of the Project Team, circumstances occur in which the timely and/or proper execution of the Transition Plan is obstructed, this shall be immediately reported to the relevant executive officers of both Parties for immediate resolution.
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13. INTELLECTUAL PROPERTY RIGHTS 13.1 Customer grants to Philips, during the Term, a non-exclusive, royalty-free, non-transferrable right to make, have made, use, sell, reproduce, adapt, distribute, or otherwise use or practice Customer's Intellectual Property Rights solely in connection with manufacturing of the Products and packaging to Customer pursuant to this Agreement. 13.2 Customer represents and warrants that any Product manufactured by Philips under this Agreement in accordance with the Specifications does not infringe, misappropriate, or otherwise violate any third party Intellectual Property Rights. 13.3 All right, title and interest in any and all Intellectual Property Rights and Know How resulting or based on any services by Philips or its Affiliates hereunder or enhancements carried out or technology developed during manufacture of the Products and that relate specifically and solely to the manufacture of the Product ("New Technology"), in each case, that were developed for the Product, will be owned exclusively by Customer. Philips hereby assigns and shall cause its Affiliates to assign all right title and interest in New Technology to Customer, and shall cause all employees or service providers to assign all right title and interest and waive any moral rights in New Technology. For greater certainty, "New Technology" shall exclude any (x) modification to Philips pre-existing Intellectual Property Rights (which, shall exclude any Intellectual Property Rights forming part of the "Purchased Assets" under the Purchase Agreement) and (y) developments developed not for the Products (collectively, "Philips Retained Product IP'), provided that Philips and its Affiliates hereby grant to Customer under any such Intellectual Property Rights, which are applicable or used for the manufacturing of the Product, a non- exclusive, non-transferable (except in accordance with clause 18.4 (Assignment)), irrevocable, world-wide, fully paid-up license, without the right to grant sub-licenses, to make, have made, sell or commercialize in any other way the Product. 13.4 The sale of any Products under this Agreement shall not constitute the transfer of any ownership rights or title in any Intellectual Property Rights or Know How in or to such Products. 14. CONFIDENTIALITY 14.1 Confidential Information may be disclosed by or on behalf of a Party or its Affiliates (the "Disclosing Party") to the other Party or its Affiliates (the "Receiving Party") in connection with this Agreement. Each Party agrees to keep the other Party's (and its Affiliates) Confidential Information confidential and not to reproduce or disclose such Confidential Information to any third party, or to use it for any purpose other purpose than for the purposes of this Agreement. Each Party shall protect any Confidential Information of the other Party (and its Affiliates) with the same degree of care used in protecting its own Confidential Information, but no less than a reasonable degree of care. Unless otherwise mutually agreed in writing, the Confidential Information shall remain the property of the Disclosing Party. Each party's obligation to protect the Confidential Information of the other Party shall continue for a period of [Redacted - Commercial Sensitive - Time Period] following the date of termination of this Agreement.
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14.2 Each Party may disclose the other Party's Confidential Information to its and its Affiliates' employees, officers, lawyers, accountants, professional advisers, consultants and sub-contractors (collectively, "Representatives") or financing sources (both debt and equity) or any prospective acquirer of a Party (or substantially all of the assets related to the Products)(collectively, "Other Recipients") on a strict need to know basis, provided that such Representatives and Other Recipients are subject to confidentiality obligations and/or agreements at least as stringent as the confidentiality restrictions imposed by this clause 14 on the Receiving Party. 14.3 The confidentiality obligations set out in this clause 14 shall not apply to any information (but only to the extent that such information) and the definition of "Confidential Information" shall not be deemed to include any information that: (a) is generally available from public sources or in the public domain through no fault or breach of the Receiving Party or any of its Representatives; (b) becomes available to the Receiving Party (or any of its Affiliates) unless the Receiving Party (or such Affiliate) is aware that such source was bound by a confidentiality agreement with the Disclosing Party or any or its Representatives or otherwise under a contractual, legal, fiduciary or other obligation of confidentiality with respect such information; (c) developed independently by the Receiving Party or any of its Affiliates without use of or reliance on the Disclosing Party's (or any of its Affiliates') Confidential Information as demonstrated by written records; or (d) was known or in the possession of the Receiving Party (or any of its Affiliates) prior to its disclosure by the Disclosing Party unless the Receiving Party (or such Affiliate) is aware that the source of such information was bound by a confidentiality undertaking to the Disclosing Party (or its Affiliates) or any or its Representatives or otherwise under a contractual, legal, fiduciary or other obligation of confidentiality with respect to such information.
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14.4 Notwithstanding any of the carve outs to the definition of "Confidential Information" contained in clause 14.3, any Confidential Information in respect of the "Purchased Assets" and the "Business" (each, as defined under the Purchase Agreement) shall be deemed the Confidential Information of Customer (the "Transferred Confidential Information"), and, in respect of Philips, the carve out to the definition of "Confidential Information" contained in clause 14.3 shall not apply to any Transferred Confidential Information, notwithstanding the fact that Philips was aware, had possession of, or independently developed any such Transferred Confidential Information prior to the Effective Date 14.5 Clause 14 does not prohibit disclosure or use of any Confidential Information if and to the extent that the disclosure or use is required by applicable Law, any judicial or administrative proceedings, or the rules of any recognized stock exchange on which the shares of any Party are listed, provided that prior to such disclosure, the Receiving Party promptly notifies the Disclosing Party of such requirement with a view to providing the Disclosing Party with the opportunity to contest such disclosure or use and/or to obtain a protective order or otherwise to agree to the timing and content of such disclosure or use and the Receiving Party shall at the request of the Disclosing Party, assist the Disclosing Party in contesting such disclosure and/or obtaining a protective order; provided further that the Receiving Party shall only disclose such portions of the Confidential Information that are strictly required to be disclosed by applicable Law, and if permitted by applicable Law, the Disclosing Party shall be provided with the opportunity to review and comment on the disclosure to be made. 14.6 Each Party reserves all rights in its and its Affiliates' Confidential Information. No rights or obligations in respect of a Party's Confidential Information other than those expressly stated in this Agreement are granted to the other Party or to be implied from this Agreement. Each Party, and its Representatives shall protect and keep confidential and shall not use, publish or otherwise disclose to any Third Party, except as permitted by this Agreement, or with the other Party's written consent, the other Disclosing Party's Confidential Information. 15. FORCE MAJEURE Notwithstanding any provision to the contrary contained in this Agreement, the Parties shall be excused from the consequences of any breach of this Agreement if and to the extent that such breach was caused in whole or in part by a Force Majeure event, provided that (a) the affected Party shall not in any material way have caused or contributed to such Force Majeure event, (b) the Force Majeure event could not have been prevented by reasonable and ordinary precautions (as would be employed by a reasonably prudent person in the position of the affected party), and (c) the Force Majeure event could not reasonably have been circumvented by the affected Party by reasonable and ordinary commercial means, such as the use of alternate suppliers or subcontractors. Notwithstanding the foregoing: (a) the existence or occurrence of a Force Majeure event shall excuse a breach of this Agreement only for such period of time as the Force Majeure event remains in existence and only to the extent that such Force Majeure event has caused in whole or in part the breach of this Agreement;
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(b) the existence of a Force Majeure event that has caused a breach of this Agreement shall not prevent a Party from asserting and acting upon a breach of this Agreement that has not been caused by a Force Majeure event; (c) If a Party is not or is not expected to be able to perform any material obligation under this Agreement due to a Force Majeure event for a period of [Redacted - Commercial Sensitive - Time Period] or more, the other Party may terminate this Agreement without liability. (d) Notwithstanding the foregoing, Customer may cancel without liability any affected Purchase Orders if the Force Majeure event would result in a delay in delivery of more than [Redacted - Commercial Sensitive - Time Period]. For the purposes of this clause 15, "Force Majeure" means any prevention, delay, stoppage or interruption in the performance of any obligation or the occurrence of any event due to an act of God, the occurrence of enemy or hostile actions, sabotage, war, blockades, terrorist attacks, insurrections, riots, epidemics, nuclear and radiation activity or fall-out, civil disturbances, explosions, fire or other casualty, failure of energy sources, any industry-wide material shortage and changes in governmental or regulatory action or legislation or regulation, third party labour disputes or strikes or any other similar causes beyond the control of the Party seeking relief from its obligations as a result of such event, but not including, for clarity, any financial inability of Philips or any of its Affiliates or the failure of any subcontractor to perform obligations owed to Philips unless when those are caused by Force Majeure. 16. EXPORT CONTROL 16.1 Customer understands that certain transactions of Philips are subject to export control Laws and regulations, such as but not limited to the UN, EU and the USA export control Laws and regulations, ("Export Regulations") which prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of Philips to export, re-export or transfer Products as well as any technical assistance, training, investments, financial assistance, financing and brokering will be subject in all respects to such Export Regulations and will from time to time govern the license and Delivery of Products and technology abroad by persons subject to the jurisdiction of the relevant authorities responsible for such Export Regulations. If the Delivery of Products, services and/or documentation is subject to the granting of an export or import license by certain governmental authorities or otherwise restricted or prohibited due to export/import control regulations, Philips may suspend its obligations and Customer's and/or end-user's rights until such license is granted or for the duration of such restrictions or prohibitions. Furthermore, Philips may even terminate the relevant order in all cases without incurring any liability towards Customer or end-user. 16.2 Philips undertakes to provide Customer on request and in a timely fashion, with the following information in relation to the Products: (a) The country of origin of items to be supplied; and
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(b) The applicable export control classification number of items known by Philips to be so subject to control. 16.3 Each Party will provide the other with reasonable assistance when applying for export licences for the Product. 16.4 Customer warrants that it will comply in all respects with the export, re-export and transfer restrictions set forth in such Export Regulations or in export licenses (if any) for every Product. Customer will not re-export the Product to any Third Parties unless Customer first obtains the same warranty as Customer is providing in the first sentence of this clause 16.4 from such third party. 16.5 Customer shall take all commercially reasonable actions in a manner consistent with industry practice, that are within its reasonable control to help minimize the risk of a customer/purchaser or end-user contravening such Export Regulations. 17. REGULATORY MATTERS Until execution of the Quality Agreement, the following provision shall govern the regulatory aspects of the activities under this Agreement. 17.1 Regulatory Actions Customer and Philips agree to notify each other within two (2) Business Days of any regulatory action affecting the Product. 17.2 Government Inspections, Compliance Review and Inquiries Upon request of any Governmental Authority or any third party entity authorized by a Governmental Authority, such entity shall, for the purpose of regulatory review and compliance, have access to observe and inspect the: (i) facilities of Philips; and (ii) manufacturing, testing, storage and preparation for shipment of Product, including development operations in respect of manufacturing, and auditing the Philips facility for compliance with applicable Laws. Philips shall give Customer prompt written notice of any upcoming inspections or audits by a Governmental Authority, governmental entity or any third party entity authorized by a Governmental Authority of the Philips facility or any of the foregoing, shall provide Customer with a written summary of such inspection or audit within five (5) Business Days following completion thereof. Philips agrees to use commercially reasonable efforts to promptly rectify or resolve any deficiencies (consisting of any failure to meet applicable regulatory requirements under applicable Law then in force) noted by a Governmental Authority, governmental entity or any third party entity authorized by a Governmental Authority in a report or correspondence issued to Philips or Customer. Subject to any specific arrangements agreed upon by the parties and subject to any limitations due to the fact (and until) Philips is the legal manufacturer, Customer shall be responsible for communicating with any Governmental Authority concerning the Product or the marketing, distribution, sale use of the Product, and Philips shall provide Customer with such assistance as Customer may reasonably require to assist it in such communications. Philips shall have no such communications specifically related to the Product, except to the extent (and notwithstanding its confidentiality undertakings in this Agreement) that they relate to Philips's manufacture, testing, storage and preparation for shipment of Product under this Agreement or as required of Philips directly by the Governmental Authority (including but not limited to due to the fact (and until) Philips is the legal manufacturer of the Product), in which case Philips shall be responsible for such communications. Notwithstanding the foregoing and except to the extent that an immediate or urgent communication is necessary under the circumstances or required by applicable Law, Philips in good faith shall consult in advance with Customer regarding all communications with any Governmental Authority that relate to Product or to Philips' ability to manufacture the Product pursuant to this Agreement.
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17.3 Complaints and Adverse Events Philips and Customer shall fully comply with the terms of the Quality Agreement regarding their respective obligations and responsibilities with respect to any complaints or adverse events regarding the Product and other activities related to this Agreement. 17.4 Records Philips shall maintain, and provide Customer reasonable access to, all records, both during and after the termination or expiration of this Agreement, in accordance with the Quality Agreement. The cost of any off-site storage of such records after the Term of this Agreement shall be borne by Customer and invoiced on a calendar quarter basis. After the Term, Customer may elect to have such records delivered to it upon reimbursing Philips for its reasonable costs of such transfer. 17.5 Testing, Documentation, and Quality Assurance Philips shall maintain, and provide Customer reasonable access to, accurate and complete production records with respect to the manufacture of the Product in accordance with the Quality Agreement. The Parties agree to execute, and shall comply with their respective obligations and duties set forth in, the Quality Agreement. To the extent that there is any conflict between the terms of this Agreement and the Quality Agreement, the terms of this Agreement shall govern. 17.6 Cooperation as to Adverse Events, Product Inquiries and Recalls Each Party shall provide to each other in a timely manner all information which the other party reasonably requests regarding the Product in order to enable the other party to comply with all applicable Laws. Without limiting the foregoing, each Party will cooperate fully with the other party in connection with any recall efforts and mandatory problem reporting to Governmental Authorities as more fully detailed in the Quality Agreement.
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18. MISCELLANEOUS 18.1 Entire Agreement This Agreement, together with the Quality Agreement and the Purchase Order, contains the entire agreement between the Parties relating to the subject matter of this Agreement, to the exclusion of any terms implied by applicable Law which may be excluded by contract, and supersedes any previous written or oral agreement between the Parties in relation to the matters dealt with in this Agreement. Each Party acknowledges that it has not been induced to enter into this Agreement by any representation, warranty or undertaking not expressly set out in this Agreement. 18.2 Severability If any provision in this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any applicable Law, then: (a) such provision or part shall to that extent be deemed not to form part of this Agreement but the legality, validity or enforceability of the remainder of this Agreement shall not be affected; (b) the Parties shall use reasonable efforts to agree a replacement provision that is legal, valid and enforceable to achieve so far as possible the intended effect of the illegal, invalid or unenforceable provision. 18.3 Notices Any notice or other communication required or permitted to be given to any Party hereunder shall be in writing and shall be given to such Party at such Party's address set forth below, or such other address as such Party may hereafter specify by notice in writing to the other Party. Any such notice or other communication shall be addressed as aforesaid and given by: (a) delivered personally; (b) sent by an internationally recognized overnight courier service such as Federal Express; or (c) e-mail transmission, Philips' details: PHILIPS MEDICAL SYSTEMS NEDERLAND B.V. Address: PHILIPS MEDICAL SYSTEMS NEDERLAND B.V. P.O. Box 10.000 5680 DA Best, The Netherlands
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Attention: [Redacted - Personal Information], Operations Manager MR Best Email: [Redacted - Personal Information] With copy to: Legal Department PMSN BV Veenpluis 4-6 5684 PC Best Building QX2 Email: The Company's details: PROFOUND MEDICAL INC. Address: Profound Medical Inc. 2400 Skymark Avenue, Unit #6 Mississauga, ON, L4W 5K5, Canada Attention: Arun Menawat E-mail: [Redacted - Personal Information] With copy to: Torys LLP Suite 3000, P.O. Box 270 79 Wellington Street West TD Centre Toronto, ON M5K 1N2 Attention: Cheryl Reicin Any notice or other communication will be deemed to have been duly given: (A) on the date of service if served personally; (B) on the Business Day after delivery to an international overnight courier service, provided receipt of delivery has been confirmed; or (C) on the date of transmission if sent via e-mail transmission, provided confirmation of receipt is obtained promptly after completion of transmission and provided that transmission via e-mail is followed promptly by delivery via one of the methods in Clause 18.3(a) or (b) above. 18.4 Assignment This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement may not be assigned by either Party, in whole or in part, to any Third Party without the prior written consent of the other Party, except that either Party may assign this Agreement as a whole, and all of its rights and obligations hereunder, without the consent of the other Party, but upon written notice to the other Party (a) to an Affiliate, or (b) in case of a transfer of all, or substantially all, stock or assets of such Party or the relevant business activity through which such Party acts in this Agreement to a Third Party or to any partnership or other venture in which such business activity is to participate. Except as provided above, without prior written consent of the other Party, any assignment or pledge of rights under this Agreement by a Party to a Third Party shall have no effect vis-à-vis such Third Party.
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18.5 Independent Contractors The Parties to this Agreement are independent contractors and nothing in this Agreement shall operate to create a relationship of agency, partnership or employment between the Parties and neither Party shall have any right or authority to act on behalf of the other nor to bind the other by contract or otherwise (except as expressly permitted by the terms of this Agreement). 18.6 Headings Headings used in this Agreement are for convenience only and shall not affect the interpretation. 18.7 Amendments and Waiver No amendment of this Agreement shall be effective unless such amendment is in writing and signed by or on behalf of each of the Parties. No waiver of any provision of this Agreement shall be effective unless such waiver is in writing and signed by or on behalf of the Party entitled to give such waiver. 18.8 Disputes and Applicable Law This Agreement (including any dispute hereunder) and the documents to be entered into pursuant to it, save as expressly otherwise provided therein, will be governed by and construed in accordance with the Laws of the Netherlands. The applicability of the UN Convention on Contracts for the International Sale of Goods (Vienna convention) is explicitly excluded. Any dispute arising out of or in connection with this Agreement shall be resolved in the manner provided in Sections 12.1 and 12.2 of the Purchase Agreement. 18.9 Counterparts This Agreement may be executed in multiple counterparts, each of which shall be deemed an original. Signatures submitted by facsimile and electronically transmitted signatures as to which authenticity can reasonably be confirmed, shall be valid. 18.10 Third Party Rights Save as expressly otherwise stated, this Agreement does not contain a stipulation in favour of a Third Party.
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18.11 Costs Except as otherwise provided in this Agreement, all costs which a Party has incurred or shall incur in preparing, concluding or performing this Agreement are for that Party's own account. 18.12 Insurance Philips shall fully comply with the terms of the Quality Agreement regarding its obligations and responsibilities with respect to maintaining the required level of insurance. 18.13 Further Assurances Each Party shall at its own costs and expenses from time to time execute such documents and perform such acts and things as the other Party may reasonably require to give the other Party the full benefit of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized representatives of the parties as of the dates set forth below. PHILIPS MEDICAL SYSTEMS PROFOUND MEDICAL INC. NEDERLAND B.V. By: /s/ Iwald Mons By: /s/ Arun Menawat Name: Iwald Mons Name: Arun Menawat Title: M&A Project Leader Title: Chief Executive Officer Date: July 31, 2017 Date: July 31, 2017
[Redacted - Commercially Sensitive - Schedules concerning Product specifications, details, pricing, lead times, production plan and transition details]
Question:
Highlight the parts (if any) of this contract related to "Effective Date" that should be reviewed by a lawyer. Details: The date when the contract is effective | July 31, 2017 | Given the context, answer the question that follows |
12. Plaintiff also brings this action on behalf of a class, pursuant to Federal Rules of Civil Procedure Rule 23(a) and 23(b)(3). 13. The class consists of all natural persons with addresses in the State of New York who were the subject of a communication from Defendant, made within the time frame relevant to this action, which both sought to collect a personal or household debt less than $50.00 and contained the statement, “Subscriber to Experian, Transunion and Experian.” 14. For purposes of the class definition, the “time frame relevant to this action” is that period of time beginning one year prior to the filing of the original complaint in this action, through and including the date of class certification. 15. The class is so numerous that joinder of all members is not practicable. On information and belief, there are at least 40 members of the class, including the Plaintiff. 16. There are questions of law and fact common to the class, which common questions predominate over any questions relating to individual class members. The predominant 1 Source: http://www.pmacollections.com/services.html (Last accessed: April 9, 2016). 4 common question is whether the Defendant threatened to take any action (i.e., report debts less than $50.00 to the credit bureaus) that was not intended to be taken. 17. Plaintiff’s claim is typical of the claims of the class members. All are based on the same factual and legal theories. 18. Plaintiff will fairly and adequately represent the class members. Plaintiff has retained counsel experienced in class actions and FDCPA litigation. 19. A class action is superior for the fair and efficient adjudication of this matter, in that: a. Individual actions are not economically feasible; b. Members of the class are likely to be unaware of their rights; c. Congress intended class actions to be a principal enforcement mechanism under the FDCPA. 20. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 21. A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt including but not limited to the threat to take any action that cannot legally be taken or that is not intended to be taken. 15 U.S.C. § 1692e(5). Likewise, a debt collector may not use any false representation or deceptive means to collect or attempt to collect any debt. 15 U.S.C. § 1692e(10). 22. Defendant, through Exhibit A, sought to collect a debt from Plaintiff in the amount of $32.35 in part by impliedly threatening to report Plaintiff’s debt to the credit bureaus 5 despite its advertised policy and practice not to report balances of less than $50.00 to the credit bureaus. In so doing, Defendant violated 15 U.S.C. § 1692e(5) and § 1692e(10). The implied threat to report Plaintiff’s debt to the credit bureaus constitutes both a threatened act that was never intended to be taken and a false or deceptive means of collecting debt. 23. Because Defendant’s unlawful collection communication employs one or more of the acts proscribed by 15 U.S.C. § 1692e, Defendants are liable to the Plaintiff for statutory damages pursuant to 15 U.S.C. §1692k. WHEREFORE, the Court should enter judgment in favor of Plaintiff and against Defendants for: (1) Statutory damages; (2) Attorney’s fees, litigation expenses and costs of suit; (3) Such other and further relief as the Court deems proper. Dated: Atlanta, Georgia April 11, 2016 The Law Offices of Shimshon Wexler, PC By: /s Shimshon Wexler Shimshon Wexler Attorney for Plaintiff 216 W 104th St., #129 New York, NY 10025 Tel: (212)760-2400 Fax: (917)512-6132 swexleresq@gmail.com licensed in New York and Georgia Plaintiff requests a trial by jury on all issues so triable. By: /s Shimshon Wexler 6 8. On or about March 9, 2016, Defendant sent, and Plaintiff received a reasonable time thereafter, a form debt collection letter alleging therein that Plaintiff owed a debt to Sheil Medical Labs in the amount of $32.35. A true and correct copy of the letter Plaintiff received is attached hereto as Exhibit A. 9. In addition to informing Plaintiff that the “amount is outstanding and past due,” Exhibit A unmistakably warns, in bold, capital letters, that Defendant is a “SUBSCRIBER TO DEFENDANT’S VIOLATION OF 15 U.S.C. 1692e | lose | Please read the following class action and provide the verdict of the class action either win or lose |
To Borrower’s Knowledge, (x) all Intellectual Property set forth on the IP Schedule is subsisting, unexpired, has not been abandoned in any applicable jurisdiction, (y) is valid and enforceable and (z) the use of the IP Collateral in the manner in which it is currently used or intended to be used does not infringe, dilute, misappropriate, or otherwise violate the rights of any Person in any material respect, other than, in each case of (x) through (z), to the extent the same would not reasonably be expected to have a Material Adverse Effect. | intellectual property | Given the provision, provide with the correct label for the given provision |
The payments and benefits under the Plan are in lieu of any payment and benefits under any plan or policy of the Company or any of its Affiliates regarding severance payments generally, including the Company’s Severance Pay Plan for Executives. | non-duplication of benefits | Given the provision, provide with the correct label for the given provision |
Within a reasonable period of time, each Borrower will deliver to Lender copies of all material reports submitted by independent public accountants in connection with each annual audit of the Financial Statements or other business operations of such Borrower made by such accountants, including the comment letter submitted by such accountants to management in connection with the annual audit. | accountants’ reports | Given the provision, provide with the correct label for the given provision |
Except as expressly stated herein, no Participant shall have any rights or benefits under this Agreement or any other Loan Document. | participations | Given the provision, provide with the correct label for the given provision |
Employees who participate in the Plan and who transfer to a new position not covered by this Plan and instead covered by another bonus, sales or incentive plan may be considered for a Bonus calculated on a pro-rata basis for the applicable period. | transfers | Given the provision, provide with the correct label for the given provision |
No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of that Transaction. | non-reliance | Given the provision, provide with the correct label for the given provision |
BORROWER AND ADMINISTRATIVE AGENT EACH IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. | waiver of venue | Given the provision, provide with the correct label for the given provision |
Furthermore the Executive agrees to devote such time as may be necessary to fulfill the Executive’s obligations to the Company and during the term of the Executive’s employment with the Company to refrain from any other occupation, consulting or other business activity without the prior approval or consent of the Company. | conflicting employment | Given the provision, provide with the correct label for the given provision |
This Amendment along with the Agreement is the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether oral or written, between the parties with respect to such matters. | miscellaneous | Given the provision, provide with the correct label for the given provision |
Notwithstanding any provision in Section 3(b), 3(c), or 3(d) above to the contrary, if, before the fourth anniversary of the Date of Grant, the Employee’s employment or service with the Company terminates due to the Employee’s death, or if the Employee dies after Normal Retirement, the Employee shall become immediately vested in 100% of the Restricted Stock Units. | death | Given the provision, provide with the correct label for the given provision |
In the event of Executive’s voluntary resignation, Executive will be entitled to receive only Accrued Benefits for the thirty-day notice period and no other amount. | voluntary resignation by executive | Given the provision, provide with the correct label for the given provision |
Notwithstanding anything to the contrary herein, to the extent the Affinion Parties engage in any discussions or negotiations with any person or entity concerning any actual or proposed dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors, merger, transaction, consolidation, business combination, joint venture, partnership, sale of assets (other than sale of inventory in the ordinary course), debt or equity financing or re-financing, or restructuring of the Affinion Parties (including, for the avoidance of doubt, a transaction premised on an asset sale under section 363 of the Bankruptcy Code) other than the Plan and the Transactions (each, an “ Alternative Transaction ”), the Affinion Parties shall (x) provide a copy of any written offer or proposal (and notice of any oral offer or proposal) for such Alternative Transaction within three (3) Business Days of the Affinion Parties’ receipt of such offer or proposal to the legal counsel and the financial advisors to the Consenting Stakeholders that are subject to an obligation of confidentiality to Affinion with respect to such information (the “ Consenting Stakeholder Advisors ”) and (y) provide such information to the Consenting Stakeholders regarding such discussions (including copies of any materials provided to such parties hereunder) as necessary to keep the Consenting Stakeholder Advisors reasonably informed as to the status and substance of such discussions. | fiduciary duty | Given the provision, provide with the correct label for the given provision |
The parties hereto acknowledge and agree that all references to the “Credit Agreement” (or words of similar import) in the Guaranty of Collection refer to the Credit Agreement without impairing any such obligations or Liens in any respect. | reaffirmations | Given the provision, provide with the correct label for the given provision |
No variation hereof shall be deemed valid unless in writing and signed by the parties hereto and no discharge of the terms hereof shall be deemed valid unless by full performance of the parties hereto or by a writing signed by the parties hereto. | entire agreements | Given the provision, provide with the correct label for the given provision |
With respect to each fiscal year of the Company, if and to the extent that the Tax Liability of any Member with respect to such fiscal year, but for this Section 5.2, would have exceeded the distributions otherwise made to such Member under Section 5.1(b) with respect to such fiscal year, then, unless the Managers with Manager Approval otherwise direct, the Company shall distribute to all Members on a Distribution Date (but in no event later than March 15 th following the end of each fiscal year), in proportion to their respective Capital Accounts, an amount sufficient so that, together with distributions under Section 5.1(b) with respect to such fiscal year, each Member shall have received as of such relevant Distribution Date, distributions with respect to such fiscal year no less than such Member’s Tax Liability with respect to such fiscal year; provided, that (i) the Company has available cash (without the requirement for borrowings or the sale of assets) to make any such distributions and (ii) such distributions do not violate the terms and conditions of any credit facilities or other borrowings of the Company. | tax distributions | Given the provision, provide with the correct label for the given provision |
A VWAP Purchase shall automatically be deemed completed at such time on the VWAP Purchase Date that the Sale Price falls below the VWAP Minimum Price Threshold; in such circumstance, the VWAP Purchase Amount shall be calculated using (i) the VWAP Purchase Share Percentage of the aggregate shares traded on the U.S. Market for such portion of the VWAP Purchase Date prior to the time that the Sale Price fell below the VWAP Minimum Price Threshold and (ii) a VWAP Purchase Price calculated using the volume weighted average price of Common Shares sold during such portion of the VWAP Purchase Date prior to the time that the Sale Price fell below the VWAP Minimum Price Threshold. | vwap purchases | Given the provision, provide with the correct label for the given provision |
Except as provided in ARTICLE VII , this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. | no third-party beneficiaries | Given the provision, provide with the correct label for the given provision |
If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. | indemnification of purchasers | Given the provision, provide with the correct label for the given provision |
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other First-Lien Secured Parties, all of which are intended to be bound by, and to be third party beneficiaries of, this Agreement. | parties in interest | Given the provision, provide with the correct label for the given provision |
Except for those that would not, in the aggregate, have a Material Adverse Effect, (x) each Benefit Plan is in compliance with applicable provisions of ERISA, the Code and other Requirements of Law, (y) there are no existing or pending (or to the knowledge of the Borrower, threatened) claims (other than routine claims for benefits in the normal course), sanctions, actions, lawsuits or other proceedings or investigation involving any Benefit Plan to which the Borrower or any of its Subsidiaries incurs or otherwise has or could have an obligation or any Liability and (z) no ERISA Event is reasonably expected to occur. | erisa | Given the provision, provide with the correct label for the given provision |
The Senior Notes shall have been issued or shall be issued substantially concurrently with the initial funding on the Closing Date. | closings | Given the provision, provide with the correct label for the given provision |
Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law. | appointment of agent for service of process | Given the provision, provide with the correct label for the given provision |
Tenant agrees that Collateral Agent shall be entitled to the appointment of a receiver, without notice or consent, as a matter of right in accordance with Ind. | receivers | Given the provision, provide with the correct label for the given provision |
All Proceeds received by the Collateral Agent hereunder shall be held by the Collateral Agent in a Collateral Account maintained under its dominion and control and on terms and conditions reasonably satisfactory to the Collateral Agent. | proceeds to be turned over to collateral agent | Given the provision, provide with the correct label for the given provision |
The Company is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the character of its business or the ownership or use and operation of its Assets or properties requires such qualification. | organizations | Given the provision, provide with the correct label for the given provision |
The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. | delegation of duties | Given the provision, provide with the correct label for the given provision |
In furtherance of the foregoing, it is understood and agreed that signatures hereto submitted by facsimile or other electronic transmision shall be deemed to be, and shall constitute, original signatures. | counterparts | Given the provision, provide with the correct label for the given provision |
If allowed by the Committee, a Participant may transfer the ownership of some or all of the vested or earned Awards granted to such Participant, other than Incentive Stock Options to (i) the spouse, children or grandchildren of such Participant (the “Family Members”), (ii) a trust or trusts established for the exclusive benefit of such Family Members, or (iii) a partnership in which such Family Members are the only partners. | permitted transfers | Given the provision, provide with the correct label for the given provision |
The Property is commonly known as Ardenwood Research Center. | exhibit b | Given the provision, provide with the correct label for the given provision |
Loan Parties shall pay (i) all out-of-pocket expenses incurred by Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for Agent), and shall pay all fees and time charges and disbursements for attorneys who may be employees of Agent, in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the Other Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by Agent or any Lender (including the fees, charges and disbursements of any counsel for Agent or any Lender), and shall pay all fees and time charges for attorneys who may be employees of Agent or any Lender, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the Other Documents, including its rights under this Section, or (B) in connection with the Revolving Advances made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Daily LIBOR Rate Loans. | expenses | Given the provision, provide with the correct label for the given provision |
Each Tranche of Credit Agreement Refinancing Indebtedness incurred under this Subsection 2.7 shall be in an aggregate principal amount that is (x) not less than $15,000,000 in the case of Other Term Loans or $15,000,000 in the case of Other Revolving Loans and (y) an integral multiple of $5,000,000 in excess thereof. | refinancing amendments | Given the provision, provide with the correct label for the given provision |
The Company, Lessee, QCP and Lessor each hereby represents and warrants that it has full right, power and authority to enter into this Agreement and that the person executing this Agreement on behalf of the Company, Lessee, QCP and Lessor, respectively, is duly authorized to do so. | authority | Given the provision, provide with the correct label for the given provision |
Any attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of or hypothecate in any way any of the Performance Stock Units, or the levy of any execution, attachment or similar legal process upon the Performance Stock Units, contrary to the terms and provisions of this Agreement and/or the Plan, shall be null and void and without legal force or effect. | non-transferability | Given the provision, provide with the correct label for the given provision |
Subject to Section 18, any past, present, or future dispute or other controversy (hereafter a “ Dispute ”) arising under or in connection with Executive’s employment with the Company or any Affiliate, or the termination thereof, and/or the Agreement, whether in contract, in tort, statutory or otherwise, and including both claims brought by Executive and claims brought against Executive, shall be finally and solely resolved by binding arbitration in Harris County, Texas, administered by the American Arbitration Association (the “ AAA ”) in accordance with the Employment Arbitration Rules and Mediation Procedures of the AAA, this Section 26 and, to the maximum extent applicable, the Federal Arbitration Act (provided that nothing herein shall require arbitration of a Dispute which, by law, cannot be the subject of a compulsory arbitration agreement). | arbitration | Given the provision, provide with the correct label for the given provision |
Your engagement hereunder will conclude on the first anniversary of the Start Date, unless earlier ended by the Company or extended in writing by mutual agreement of the parties (such final date, the “ End Date ”). | services | Given the provision, provide with the correct label for the given provision |
Company and each Subsidiary have good and marketable title in fee simple to all real property owned by them that is material to the business of Company and each Subsidiary and good and marketable title in all personal property owned by them that is material to the business of Company and each Subsidiary, in each case free and clear of all Liens, except for Liens that do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by Company and each Subsidiary and Liens for the payment of federal, state or other taxes, the payment of which is neither delinquent nor subject to penalties. | title to assets | Given the provision, provide with the correct label for the given provision |
Each Loan Party will not create, incur, assume, suffer to exist, guarantee, or otherwise become or remain, directly or indirectly, liable with respect to any Indebtedness, except for Permitted Indebtedness. | indebtedness | Given the provision, provide with the correct label for the given provision |
Subject to Section 10.22 , no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation. | reallocation of pro rata shares to reduce fronting exposure | Given the provision, provide with the correct label for the given provision |
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. | waiver of jury trials | Given the provision, provide with the correct label for the given provision |
The provisions of separate Performance Awards, including the determination of the Committee with respect to the form of payout of Performance Awards, shall be set forth in separate Performance Award Agreements, which agreements need not be identical. | general | Given the provision, provide with the correct label for the given provision |
There are no agreements, plans, policies, commitments or other arrangements with respect to any compensation, benefits or consideration which will be materially increased, or the vesting of benefits of which will be materially accelerated, as a result of this Agreement or the other Note Documents or the occurrence of any of the transactions contemplated hereby or thereby. | change of control | Given the provision, provide with the correct label for the given provision |
No failure or delay on the part of the Administrative Agent or any Liquidity Bank to exercise any right, power or privilege under this Agreement and no course of dealing between BAFC and the Administrative Agent or any Liquidity Bank shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power or privilege. | exercise of rights | Given the provision, provide with the correct label for the given provision |
From the date hereof until (i) in the event of an offering registered under the Securities Act, 90 days after the Closing Date, the Company shall not issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents, including the filing of a resale registration statement, and (ii) in the event of an offering that is not registered under the Securities Act and that does not provide for any registration rights, 60 days after the Closing Date, the Company shall not issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents, including the filing of a resale registration statement. | subsequent equity sales | Given the provision, provide with the correct label for the given provision |
Subject to the last paragraph of this Section 1 , the Warrants evidenced hereby may be exercised, in whole or in part, by the Holder at any time or from time to time during the period commencing on the Redemption/Purchase Date and ending at 5:00 p.m., New York City time, on the date immediately preceding the tenth anniversary of the Redemption/Purchase Date (the “ Exercise Period ”), upon delivery to the Partnership at the registered office of the Partnership set forth in Section 12 , of: (a) this Warrant Certificate or any affidavit of loss (accompanied by any indemnity, medallion guarantee or other undertaking or assurance reasonably requested from the Holder by the Partnership, its Transfer Agent or its warrant agent, as the case may be) if the Holder does not have possession of this Warrant Certificate at the time of exercise, (b) a written notice stating that the Holder elects to exercise all or a specified number of Warrants evidenced hereby in accordance with the provisions of this Section 1 and specifying the name or names in which the Holder wishes the certificate or certificates for Common Units to be issued (if certificated) and (c) payment of the Exercise Price for the Common Units issuable upon exercise of such Warrants. | exercise of warrants | Given the provision, provide with the correct label for the given provision |
For so long as the Lead Investor and/or any of its affiliates maintain the Lead Investor Minimum Threshold, the Lead Investor shall be entitled to recommend an individual to serve as a senior officer of the Company in the role of Head of Sales and Marketing of the Company (the “ Sales Director Nominee ”). | marketing | Given the provision, provide with the correct label for the given provision |
Notwithstanding the above, to the extent that either Party is advised by counsel that disclosure of the matters set forth in this letter of intent is required by applicable securities laws or to the extent that such disclosure is ordered by a court of competent jurisdiction or is otherwise required by law, then such disclosing Party will provide the other Party, if reasonably possible under the circumstances, prior notice of such disclosure as well as an opportunity to review and comment on such disclosure in advance of the public release. | public announcements | Given the provision, provide with the correct label for the given provision |
The Bank is a wholly-owned subsidiary of the Company and holds the requisite authority from the Missouri Division of Finance (the " Missouri Division ") to conduct business as a state-chartered trust company with banking powers under the laws of the State of Missouri. | bank holding company | Given the provision, provide with the correct label for the given provision |
If any Subject Receivable was included in a prior Asset Review, the Asset Representations Reviewer will not perform any Tests on it, but will include the results of the previous Tests in the Review Report for the current Asset Review. | previously reviewed receivables | Given the provision, provide with the correct label for the given provision |
Any Debt of Borrower or any Guarantor now or hereafter held by any Guarantor (the " Obligee Guarantor ") is hereby subordinated in right of payment to the Guaranteed Obligations, and any such Debt collected or received by the Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any other provision hereof. | subordination of other obligations | Given the provision, provide with the correct label for the given provision |
Employee’s employment with the Company will end on and Employee shall tender his resignation as a director of the Company effective as of the Separation Date, and the Company and Employee agree that such date will be the date of Employee’s “separation from service” with the Company for purposes of Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (“Code Section 409A”). | effective dates | Given the provision, provide with the correct label for the given provision |
The Participant or a Permitted Transferee of the Stock Appreciation Rights shall have no rights as a shareholder with respect to any Ordinary Share covered by an Stock Appreciation Right and shall have none of the rights or privileges of a shareholder of the Company (including the right to vote or receive dividends) in respect of Stock Appreciation Rights subject to the Grant Notice. | no rights as shareholders | Given the provision, provide with the correct label for the given provision |
Concurrently with any prepayment of the Term Loans pursuant to Sections 2.14(a) through 2.14(e), the Borrower shall deliver to the Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds or Consolidated Excess Cash Flow, as the case may be. | prepayment certificate | Given the provision, provide with the correct label for the given provision |
(i) Ratable Reductions . | reductions in aggregate commitments | Given the provision, provide with the correct label for the given provision |
Notwithstanding the foregoing, the Committee may limit in any manner the amount payable with respect to any Stock Appreciation Right by including such a limit in the Agreement evidencing the Stock Appreciation Right at the time it is granted. | amount payable | Given the provision, provide with the correct label for the given provision |
Assuming all Consents and other actions described in Section 4.3 have been obtained or made and any applicable waiting period under the HSR Act has expired or been terminated and, except as may result from any facts or circumstances relating solely to Seller or its Affiliates, the execution, delivery, and performance by Buyer of this Agreement and the other Transaction Documents to which it is a party (including the consummation of the Transactions) does not and will not: (a) violate, conflict with, or result in the breach of any provision of the Governing Documents of Buyer, (b) conflict with or violate any Law applicable to Buyer, and (c) conflict with, result in any breach of, constitute a default (or an event which, with the giving of notice or lapse of time, or both, would become a default) under, require any Consent under, or give to others any right to exercise any remedy under, or rights of termination, acceleration, cancellation, modification or cancellation of any material Contract to which Buyer is a party, except with respect to the foregoing clauses (b) and (c) as would not, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect. | no conflicts | Given the provision, provide with the correct label for the given provision |
To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. | holder’s exercise limitations | Given the provision, provide with the correct label for the given provision |
Neither this Severance Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by either Employer or Employee without the prior written consent of the other party; provided , however , that this provision shall not preclude Employee from designating one or more beneficiaries to receive any amount that may be payable after Employee’s death and shall not preclude Employee’s executor or administrator from assigning any right hereunder to the person or persons entitled thereto; provided, further, that in connection with a voluntary transfer, the Employer may assign this Severance Agreement (and its rights, remedies, obligations, and liabilities) to an affiliate of the Employer without the consent of the Employee in connection with a spin off of such affiliate (whether by a transfer of shares of beneficial ownership, assets, or other substantially similar transaction) to all or substantially all of the shareholders of the Employer (a “Spin-off”) and, upon such assignment, the affiliate shall be deemed the Employer for all purposes of this Severance Agreement. | no assignments | Given the provision, provide with the correct label for the given provision |
Issuance of such press releases shall be governed by the procedures set forth in Section 11.5. | press releases | Given the provision, provide with the correct label for the given provision |
As of the Effective Date, each of the Parties and the other signatories thereto shall sign the General Release in the form attached to this Settlement Agreement as Exhibit D . | mutual releases | Given the provision, provide with the correct label for the given provision |
No Participant will have any voting, dividend, or other stockholder rights with respect to shares of Common Stock subject to any option granted under the Plan until such shares have been purchased and delivered to the Participant as provided in this Section 9. | delivery | Given the provision, provide with the correct label for the given provision |
The Board may abolish, suspend or supersede the Committee at any time and revest in the Board the administration of the Plan. | delegations | Given the provision, provide with the correct label for the given provision |
The Debtor waives presentment, demand, notice, protest, notice of acceptance of this Agreement, notice of any loans made, credit or other extensions granted, collateral received or delivered or any other action taken in reliance hereon and all other demands and notices of any description, except for such demands and notices as are expressly required to be provided to the Debtor under this Agreement or any other document evidencing the Obligations. | waivers | Given the provision, provide with the correct label for the given provision |
For 12 months following Executive’s termination of employment, Mylan shall also provide to Executive and/or Executive’s dependents the Continuation Benefits; provided, however, that Mylan’s obligation to provide the Continuation Benefits shall end at such time as Executive obtains health insurance benefits through another employer or otherwise in connection with rendering services for a third party and provided, further, that the parties agree to cooperate such that the Continuation Benefits are, to the extent practicable, provided in a manner so as to minimize adverse tax consequences to the Company under Section 4980D of the Code. | termination without cause | Given the provision, provide with the correct label for the given provision |
In the event some but not all of the Members would have Adjusted Capital Account Deficits as a consequence of an allocation of Net Losses pursuant to Section 4.2 and Section 4.3 , the limitation set forth in this Section 4.4 shall be applied on a Member-by-Member basis, and Net Losses not allocable to any Member as a result of such limitation shall be allocated to the other Members in accordance with the positive balances in such Members’ Capital Accounts so as to allocate the maximum permissible Net Losses to each Member under Regulations Section 1.704-1(b)(2)(ii)(d). | loss limitation | Given the provision, provide with the correct label for the given provision |
Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 1:00 p.m., New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. | funding by lenders | Given the provision, provide with the correct label for the given provision |
As of the Sixth Amendment Effective Date, the Company and the other Loan Parties, as debtors, grantors, pledgors, guarantors, assignors, or in other similar capacities in which such parties grant liens or security interests in their properties or otherwise act as accommodation parties or guarantors, as the case may be, under the Loan Documents to which they are a party, hereby ratify and reaffirm all of their payment and performance obligations and obligations to indemnify, contingent or otherwise, under each of such Loan Documents to which they are a party, and ratify and reaffirm their grants of liens on or security interests in their properties pursuant to such Loan Documents to which they are a party, respectively, as security for the Obligations, and as of the Sixth Amendment Effective Date, each such Person hereby confirms and agrees that such liens and security interests hereafter secure all of the Obligations, including, without limitation, all additional Obligations hereafter arising or incurred pursuant to or in connection with this Sixth Amendment, the Amended Credit Agreement or any other Loan Document. | ratification of liability | Given the provision, provide with the correct label for the given provision |
Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. | general | Given the provision, provide with the correct label for the given provision |
The Corporation may take such action(s) without notice to the Grantee and shall remit to the Grantee the balance of any proceeds from withholding such shares in excess of the amount reasonably determined to be necessary to satisfy such withholding obligations. | tax withholdings | Given the provision, provide with the correct label for the given provision |
Prior to a quotation or listing of the Fund’s securities on a national securities exchange (including through an initial public offering) or a sale of all or substantially all of the Fund’s assets to, or a merger or other liquidity transaction with, an entity in which Shareholders receive shares of a publicly-traded company that continues to be managed by the Fund’s investment adviser or an affiliate thereof (an “ Exchange Listing ”), to the extent that a Participant reinvests Distributions in additional Shares, the Participant will receive an amount of Shares equal to the amount of the Distribution on that Participant’s Shares divided by the most recent fiscal quarter-end net asset value per Share that is available on the date such Distribution was paid (unless the Fund’s board of directors (the “ Board ”) determines to use the net asset value per share as of another time) (the “ Reference NAV ”). | distributions | Given the provision, provide with the correct label for the given provision |
Context:
Exhibit 10.23
TECHNOLOGY OUTSOURCING AGREEMENT
This Master Agreement is made as of the 26 day of January, 2007 (the "Effective Date"), by and between Oriental Financial Group Inc., a Puerto Rico financial holding company ("Customer"), and Metavante Corporation, a Wisconsin corporation ("Metavante").
Customer desires Metavante to provide to Customer the services and licenses as set forth in this Agreement and its amendments, and Metavante desires to provide such services and licenses to Customer, all as provided in this Agreement and its amendments.
THEREFORE, in consideration of the payments to be made and services to be performed hereunder, upon the terms and subject to the conditions set forth in this Agreement and intending to be legally bound, the parties hereto agree as follows:
Metavante shall provide to Customer and Customer shall receive from Metavante, all upon the terms and conditions set forth in this Agreement and Amendments, the Services and licenses specified. The term of this Agreement shall commence on the Effective Date and end on November 30, 2014 (the "Initial Term"). The parties also agree to use their best efforts to perform the Conversion(s) such that the Commencement Date occurs on or before November 5, 2007.
As of the Effective Date, the parties acknowledge that this Agreement includes the following Schedules:
Current Capabilities Schedule
Conversion Plan Schedule
Services and Charges Schedule
Planned Enhancement and Interface Schedule
Service Level Schedule
Termination Fee Schedule
Strategic Network Solution Schedule (To be added as mutually agreed by Customer and Metavante)
MasterCard® SecureCode™ Service Participation Schedule
As of the Effective Date, the parties acknowledge that Services and licenses will be provided for Customer and the Affiliates of Customer that are listed in Exhibit A, attached hereto. For purposes of this Agreement, the term "Customer" includes all Affiliates listed in Exhibit A, attached hereto.
By signing below, the parties agree to the terms and conditions of this Agreement, and Customer appoints Metavante as: (1) Customer's attorney-in-fact to transmit files and information to the Internal Revenue Service ("IRS") and the Department of the Treasury of the Commonwealth of Puerto Rico (the "Department") and to take all appropriate actions in connection therewith and empowers Metavante to authorize the IRS and the Department to release information return documents supplied to the IRS and the Department by Metavante to states which participate in the "Combined Federal/State Program"; and (2) Customer's agent to sign on Customer's behalf the Affidavit required by the Form 4804, or any successor form or any other form or document which may be required by the Department. Customer acknowledges that Metavante's execution of the Form 4804 Affidavit or the equivalent form with the Department on Customer's behalf does not relieve Customer of responsibility to provide accurate TINs or liability for any penalties which may be assessed for failure to comply with TIN requirements.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on their behalf as of the date first above written. METAVANTE CORPORATION ORIENTAL FINANCIAL GROUP INC. 4900 W. Brown Deer Road 997 San Roberto Street Brown Deer, WI 53223 Tenth Floor San Juan, PR 00926 By: /s/ Paul T. Danola By: /s/ José Rafael Fernández
Name: Paul T. Danola Name: José Rafael Fernández Title: Senior Executive Vice President Metavante Corporation Title: President and Chief Executive Officer
By: /s/ James R. Geschke
Name: James R. Geschke
Title: Executive Vice President
Financial Technology Solutions
TERMS AND CONDITIONS
1. CONSTRUCTION
1.1. Definitions. Capitalized terms shall have the meaning ascribed to them in Article 18 of this Agreement.
1.2. References. In this Agreement, references and mention of the word "includes" and "including" shall mean "includes, without limitation" and "including, without limitation," as applicable, and the word "any" shall mean "any or all". Headings in this Agreement are for reference purposes only and shall not affect the interpretation or meaning of this Agreement.
1.3. Interpretation. The terms and conditions of this Agreement and all schedules attached hereto are incorporated herein and deemed part of this Agreement. In the event of a conflict between the general terms and conditions and the terms of any schedules or exhibits attached hereto, the terms of the schedules and exhibits shall prevail and control the interpretation of the Agreement with respect to the subject matter of the applicable schedules and/or exhibits. The schedules and exhibits together with the general terms and conditions shall be interpreted as a single document. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original, but all of which together constitute one and the same agreement.
1.4. Affiliates. Customer agrees that it is responsible for ensuring compliance with this Agreement by its Affiliates. Customer agrees to be responsible for the submission of its Affiliates' data to Metavante for processing and for the transmission to Customer's Affiliates of such data processed by and received from Metavante. Customer agrees to pay any and all fees owed under this Agreement for Services rendered to its Affiliates. The term Affiliates also includes other entities that become affiliates of Customer after the date of this Agreement, due to a reorganization or restructuring of Customer's business, which do not cause an increase in the volume of Customer's transactions.
2. TERM
2.1. Duration. Unless this Agreement has been earlier terminated, Metavante shall provide a written renewal notice to Customer at least twelve (12) months prior to the expiration of the Initial Term (the "Renewal Notice"). Unless Customer notifies Metavante of its intent not to renew this Agreement in writing within a period of three (3) months following the Renewal Notice, this Agreement shall automatically renew at the end of the Initial Term on the same terms (including pricing terms) for one (1) twelve-month period. Upon expiration of such twelve (12) -month extension, this Agreement shall expire unless renewed in writing by the parties, provided, however, that Metavante may, but has no obligation to, continue to provide all or any portion of the Services thereafter on a month-to-month basis subject to these Terms and Conditions and Metavante's then-current standard fees and charges.
2.2. Termination Assistance. Following the expiration or early termination of this Agreement, Metavante shall provide to Customer the Customer Data in the format in which it exists on Metavante's systems (the "Data Tapes"), in accordance with Metavante's then-current standard prices for the delivery media. In addition, Metavante agrees to provide to Customer, at Customer's expense, all necessary assistance to facilitate the orderly transition of Services to Customer or its designee ("Termination Assistance"). As part of the Termination Assistance, Metavante shall assist Customer to develop a plan for the transition of all Services then being performed by Metavante under this Agreement, from Metavante to Customer or Customer's designee, on a reasonable schedule developed jointly by Metavante and Customer. Prior to providing any Termination Assistance, Metavante shall deliver to Customer a good-faith estimate of all such Expenses and charges, including charges for custom programming services. Customer understands and agrees that all Expenses and charges for Termination Assistance shall be computed in accordance with Metavante's then-current standard prices for such products, materials, and services. Customer shall pay for the Customer Data and any Termination Assistance in advance of Metavante providing such data or assistance. Nothing contained herein shall obligate Customer to receive Termination Assistance from Metavante. In the event this Agreement is terminated by Customer pursuant to Section 8.2, Metavante will provide Customer with one (1) set of Data Tapes without charge.
3. LICENSES
3.1. Customer Marks. Metavante is authorized to use Customer's service marks and trademarks solely if necessary to perform the Services and solely for the purpose of providing the Services to Customer. Any use of Customer's marks by Metavante shall be subject to Customer's prior written approval, which shall not be unreasonably withheld by Customer
3.2. Incidental Software License. Customer (a) will install and operate copies of certain Metavante-supplied software, if any, that is identified in the Services and Charges Schedule as required for Customer to access or receive certain of the Initial Services, (b) may access certain software that Metavante will make available on the internet, and (c) may be provided with copies of software for demonstration purposes (collectively, the "Incidental Software"). Metavante hereby grants to Customer a personal, nonexclusive, and nontransferable license and right, for the duration of this Agreement, to use the Incidental Software solely in accordance with the applicable Documentation and for no other purposes. Customer shall not do any of the following: (i) distribute, sell, assign, transfer, or sublicense the Incidental Software, or any part thereof, to any third party; (ii) except as specifically set forth in this Agreement, adapt, modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Incidental Software or any part thereof; (iii) copy the Incidental Software, in whole or in part, without including appropriate copyright notices; (iv) except for providing banking services to Customer's customers, use the Incidental Software in any manner to provide Service Bureau, time sharing, or other computer services to Third Parties; (v) export the Incidental Software outside the United States, either directly or indirectly; and/or (vi) install the Incidental Software on a different platform or interface the Incidental Software to an application written in a different computer language other than that set forth in the Documentation. Within 10 days of the Effective Date of Termination, Customer shall, at its own expense, return the Incidental Software to Metavante and/or destroy all copies thereof.
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3.3. Licensed Software The following terms apply with respect to Customer's use of Metavante's proprietary Teller Insight ä software (the "Licensed Software").
A. Scope of License: The Licensed Software is a copyrighted software product developed and owned by Metavante. All rights are reserved worldwide. Customer is granted a nonexclusive, nontransferable (except to permitted assigns of this Agreement) limited license to use the Licensed Software during the term of this Agreement. Customer shall not sell, lease, copy, distribute, transfer, assign or sublicense the Licensed Software to any third party. Customer will make no more than two (2) copies of the Licensed Software for backup and archival purposes and may make no copies for any other purpose. Customer is responsible for maintaining backup copies of the Licensed Software. The Licensed Software is licensed for use on individual computers and individual network workstations. Customer may change the location at which the Licensed Software is used provided that Customer shall retain records of all locations at which the Licensed Software is used and provide such records to Metavante upon request. The license granted hereby shall commence upon the delivery of the Licensed Software and shall continue until terminated in accordance with the terms contained herein.
B. Use. Metavante shall have no liability for any failure of the Licensed Software due to the failure of Customer to use the Software in accordance with the documentation provided by Metavante or if the Licensed Software is not workable because of the malfunction of Customer's hardware or operating system or the failure of such hardware or operating system to perform as represented, or for any other cause beyond Metavante's control.
C. Software Support: Metavante will provide to Customer improvements or enhancements as these are developed for the Licensed Software. Program improvements or enhancements shall mean changes to the programs furnished as part of the Licensed Software which result in the correction of program errors, more efficient processing, a reduction in memory requirements, or procedural changes to allow more effective use of the Licensed Software. Metavante shall use reasonable efforts to correct any errors in the Licensed Software that are reported to Metavante in writing during the term of the Software Agreement, provided such errors can be recreated with Metavante's then current version of the Licensed Software. Software support excludes support required to recover data following Customer's failure to backup system and excludes support required to install or change any software or hardware, such as a new method of download. On-site services are not provided. In the event the Customer should desire any additional support services relating to the Software, such support services will be available at mutually agreeable pricing and terms. Altering, modifying, maintaining or servicing the Licensed Software by anyone other than Metavante shall relieve Metavante of any obligation under this section.
D. Delivery and Installation: The Licensed Software will be delivered to the Customer at the time and location designated by the parties or, if the necessary computer equipment and an appropriate installation environment are not available at such time, as soon after such time as the equipment and environment are available as is reasonably practicable.
4. SERVICES
4.1. Implementation of Services.
A. Developing of Conversion Plan. Metavante shall, in consultation with Customer, develop a detailed, customized plan for the Conversion (the "Conversion Plan"). The Conversion Plan will include (i) a description of the tasks to be performed for the Conversion; (ii) allocation of responsibility for each of such tasks; and (iii) the estimated scheduled dates on which each task is to be performed. Each party shall designate its Conversion project leader. The Conversion project leaders for each party shall regularly communicate on the progress of the Conversion, the feasibility of the Conversion Dates specified in the Conversion Plan, and such other matters which may affect the smooth transition of the Services. Neither party shall reassign or replace its Conversion project leader during the Conversion without the consent of the other party, except if such individual voluntarily resigns, is dismissed for cause, or is unable to work due to his or her death, disability or other personal reasons. Each party agrees to provide such services and to perform such obligations as are specified as its responsibility in the Conversion Plan and as necessary for it to timely and adequately meet the scheduled dates set forth therein. Each party shall cooperate fully with all reasonable requests of the other party that are necessary to effect the Conversion in a timely and efficient manner. The preliminary Conversion Plan is attached hereto as the Conversion Plan Schedule, and shall be amended as the parties mutually agree. Metavante will be responsible for the Conversion Services defined in the Standard Conversion Services Schedule included herein.
B. Conversion Resources. Metavante and Customer will each provide a team of qualified individuals to assist in the Conversion effort.
C. Conversion date. The parties shall each perform their respective obligations under the Conversion Plan such that the Commencement Date occurs on or before November 5, 2007. If the Commencement Date does not occur on or before such date (the "Scheduled Conversion Date") solely as a result of Metavante's failure to perform any of its obligations under this Agreement or the Conversion Plan (including the satisfactory completion of the identified Enhancements) and not as a result of any failure by Customer or any Third Party, Customer shall recover liquidated damages equal to the following:
1. Metavante shall pay Customer $10,000.00 for each month or portion thereof that Metavante fails to have the Commencement Date occur on the Scheduled Conversion Date provided that such amount shall be prorated for any partial month. Metavante will establish a new Scheduled Conversion Date if the above date is missed, subject to Customer's approval, which shall not be unreasonably withheld.
2. The recovery of the amounts set forth above by Customer from Metavante shall be Customer's sole and exclusive monetary recovery from Metavante with respect to Metavante's failure to complete the Services necessary to have the Commencement Date occur on the Schedule Conversion Date. The parties acknowledge that the foregoing payments constitute reasonable and commercial liquidated damages.
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3. If the Customer's Conversion does not occur by June 30, 2008, either party may terminate this Agreement upon written notice provided to the other party on or before July 31, 2008.
Metavante shall pay the amounts set forth above to Customer within 15 business days after Customer's written request.
D. Training and Documentation.
(i) Metavante will provide to Customer, at no charge, one CD-ROM disc, or Internet access that includes all of the User Manuals. The Customer will receive updates to the CD-ROM at no additional charge or Internet updates when available. Customers can purchase paper manuals. For manuals that are not on CD-ROM, and not accessible via the Internet, the Customer will receive one copy of the paper updates at no additional cost. Additionally, as new manuals become available, they will be included on the CD-ROM or accessible via the Internet. Except for its internal use, Customers may not modify, reproduce, or distribute the Documentation without the express consent of Metavante.
(ii) Metavante shall provide training in accordance with the training schedule developed pursuant to the Conversion Plan. The sessions shall be held at a location mutually agreed upon by the parties. Customer shall be responsible for all Expenses incurred by the participants and Metavante's trainers in connection with such education and training. If Customer requests that training be conducted at a non-Metavante facility, Customer shall be responsible for providing an adequate training facility.
E. Account Representatives. Each party shall, prior to Conversion, cause an individual to be assigned ("Account Representative") to devote time and effort to management of the Services under this Agreement following the Conversion. Neither party shall reassign or replace its Account Representative during the first six (6) months of his or her assignment without the consent of the other party, except if such individual voluntarily resigns, is dismissed for cause, or is unable to work due to his or her death or disability.
F. Reporting and Meetings. Within sixty (60) days after the Effective Date, the parties shall mutually agree upon an appropriate set of periodic reports to be issued by Metavante to Customer during the Conversion Period and during the remainder of the Term.
G. Metavante acknowledges that this Agreement is subject to approval by Customer's board of directors on or before February 15, 2007, and that Customer may terminate this Agreement without payment of the Termination Fee by providing written notice to Metavante on or before that date, provided that an officer of Customer also certifies in writing that Customer's board of directors did not approve entering into this Agreement. Notwithstanding the foregoing, Customer authorizes and directs Metavante to commence conversion efforts to meet a scheduled Conversion Date of November 5, 2007 for Customer. In the event that Customer terminates this Agreement pursuant to the foregoing, Customer shall, within 30 days of Metavante's invoice, pay any and all costs and expenses incurred by Metavante for such conversion efforts.
H. Initial Services. Metavante shall first commence providing the Initial Services on the Commencement Date and/or as specified in the Conversion Plan.
4.2. Professional Services. Metavante shall perform the Professional Services for Customer as set forth in the Services and Charges Schedule and the Conversion Plan and shall perform additional Professional Services as mutually agreed upon by the parties from time to time under this Agreement, provided that either party may require execution of a separate mutually acceptable professional services agreement prior to Metavante's performance of Professional Services other than those set forth in the Services and Charges Schedule or the Conversion Plan. Notwithstanding any other provision of this Agreement, Metavante's maximum liability with respect to any Professional Services performed shall be limited to the value of the Professional Services engagement giving rise to the claim for Damages.
4.3. Service Levels. Service Levels, if any, relating to a particular Service shall be as set forth in the Service Level Schedule. The parties agree that Metavante's performance of Services at a level at or above any Service Level shall be satisfactory performance. Metavante shall cure any failure to achieve a Service Level within the period specified within the applicable schedule. Remedies, if any, for failure to achieve a Service Level shall be as set forth in the Service Level Schedule.
4.4. Payment Services. The following additional terms shall apply with respect to Payment Services. Payment Services are those Services provided by Metavante to effect payments between Customer's clients and third parties.
A. Settlement. Metavante may remit or receive funds for Customer as Customer's payment processor. Customer is exclusively responsible to reimburse Metavante for any and all funds remitted by Metavante to Networks, payees, or third parties in settlement of transactions processed by Metavante for Customer, whether or not Customer is able to collect the amount of any transaction from its customer. Customer shall designate a settlement account at Oriental Bank and Trust in accordance with Metavante's requirements for the applicable Service. Metavante shall charge the designated settlement account(s) for amounts owed by Customer for settlement. Customer shall, upon Metavante's demand, immediately pay to Metavante any settlement amount that Metavante is unable to collect from the settlement account for any reason. Metavante will provide Customer with daily settlement and accounting information, and Customer agrees that Customer is responsible for the daily maintenance and reconciliation of all accounting entries. Customer agrees to compensate Metavante for carrying any unfunded settlement based on the Federal Reserve Overnight borrowing rate. Upon prior written notice to Customer, Metavante may terminate this Agreement in the event that settlement remains unfunded by Customer for more than two (2) business days.
B. Card Services. The following applies to Services provided by Metavante in support of Customer's debit or credit card issuing or merchant processing programs.
(i) Networks. Customer acknowledges and agrees that Customer must obtain required memberships in all applicable Networks. If Customer is not a duly licensed card issuing member of any Network, Customer shall execute applications for
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membership and shall provide Metavante with copies of its fully executed membership agreements promptly after receipt by Customer. Metavante agrees to assist Customer in obtaining sponsorship by an appropriate bank, if necessary, for MasterCard or Visa membership. Customer shall comply with the articles, bylaws, operating regulations, rules, procedures and policies of Visa, MasterCard, and/or other Networks, as applicable, and shall be solely responsible, as between Customer and Metavante, for any claims, liabilities, lawsuits and expenses arising out of or caused by Customer's failure to comply with the same. Customer acknowledges and agrees that, because Metavante is Customer's processor, Metavante may receive certain services from MasterCard, Visa, and/or other Networks that Customer could receive directly in the event Customer performed the processing services for itself. Customer agrees that Metavante may pass through to Customer any fees charged to Metavante for such services, and that Metavante has no responsibility or liability to Customer for any such services. Prior to the transfer of the Services to Customer or its designee upon the Effective Date of Termination, Customer shall take all actions required by the applicable Network to effect the transfer. In addition to the charges specified on the Services and Charges Schedule, Customer shall be responsible for (i) all interchange and network provider fees; (ii) all dues, fees, fines, and assessments established by and owed by Customer to any Network; and (iii) for all costs and fees associated with changes to ATM protocol caused by Customer's conversion to the Services.
(ii) Card Personalization Services. If Metavante is providing card personalization services for Customer, the following will apply. Delivery of cards will be deemed complete with respect to any order upon Metavante's delivery of the supply of cards to either the United States Post Office, a common carrier or courier, or Customer's designated employee or agent. Following delivery of the cards in accordance with the foregoing, the card production services with respect to such order shall be completed, and Metavante shall have no further responsibility whatsoever for any use, abuse, loss, damage, alteration, or theft of cards following delivery. Metavante shall be responsible to produce cards in conformance with applicable network standards and for the proper preparation of mailers (e.g., sealing and addressing). Customer shall notify Metavante in writing of any alleged breach of the foregoing by Metavante. Metavante's sole responsibility, and Customer's sole remedy, shall be to provide, at Metavante's expense, a conforming replacement card to the appropriate cardholder(s).
(iii) Settlement Account. Customer shall maintain an account at Oriental Bank and Trust for purposes of funding or receiving settlement, as applicable, and authorizes Metavante to charge the settlement account via ACH debit or otherwise for any net settlement owed by Customer to Metavante, and to deposit to the settlement account any net settlement owed by Metavante to Customer. Metavante may offset amounts payable to Customer against amounts payable by Customer for purposes of determining a net settlement amount to charge to the settlement account. For at least 120 days following the Effective Date of Termination, Customer shall maintain a settlement account which Metavante may charge to settle any trailing activity which accrues prior to the Effective Date of Termination (including any chargeback of a transaction which is authorized prior to the Effective Date of Termination). Customer shall pay to Metavante fees to settle such trailing activity in accordance with this Agreement.
(iv) BIN Transfer. Prior to the transfer of the Services to Customer or its designee upon the expiration of the Term of this Agreement, Customer shall inform Visa and/or MasterCard and/or any other applicable Network in writing (with a copy to Metavante) (1) of the transfer of its Bank Identification Number (BIN) or Interbank Card Association Number, or other identifying number (as applicable) to the new processor, and (2) of the new ACH account number for billing purposes.
(v) Credit Cards.
1. Customer authorizes Metavante and grants to Metavante power-of-attorney to endorse any and all checks payable to Customer which are received by Metavante in payment of credit card accounts for which Metavante provides payment processing services.
2. Customer may request that Metavante make available to Customer's credit card cardholders checks or drafts which the cardholders may use to draw on their credit card account. Customer agrees that neither Metavante nor Metavante's payable through bank shall have any responsibility to review or verify the signature of the drawer of any credit card check, and Customer will be responsible for the full amount of any credit card check paid by Metavante for Customer.
C. ACH Services.
(i) General. "ACH Services" means Services whereby Metavante will (i) initiate and/or receive automated clearing house debit and credit entries, and adjustments to debit entries and credit entries to Customer's account, (ii) credit and/or debit the same to such account. Customer authorizes Metavante to act as Customer's third-party processor for initiating, transmitting, and/or receiving ACH entries. If agreed to between Customer and Metavante, Metavante shall provide for the posting of ACH entries to Customer deposit accounts. Metavante shall provide reports to Customer showing errors and rejections resulting from ACH entries transmitted on behalf of Customer during a particular day. It shall be Customer's responsibility to review such reports and correct erroneous ACH entries.
(ii) Timing. Metavante shall make reasonable efforts to deliver ACH entries to Customer or to an ACH operator, as appropriate, prior to any applicable deadline for such delivery. Metavante shall have no liability to Customer as a result of any late delivery, except to the extent such late delivery is (i) caused by the willful misconduct of Metavante, and (ii) made more than 24 hours after its scheduled deadline
(iii) NACHA Rules. In providing ACH Services for Customer, Metavante acts as Customer's third-party service provider and is not itself an "Operator," "Originator," "ODFI," or "RDFI" (as defined under NACHA rules). Customer shall be responsible for compliance with all applicable laws, rules, and regulations regarding Customer's use of and/or access to the ACH Services, including applicable rules and regulations of the National Automated Clearing House Association ("NACHA"). In particular and as applicable, (i) Customer will provide its depositors with all disclosures required under state and federal law and (ii) shall enter into an agreement with each party that will initiate ACH entries to accounts (an "Originator") prior to permitting the Originator to initiate ACH entries. Customer shall indemnify Metavante from, defend Metavante against, and hold Metavante harmless from any and all loss, claim,
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or liability to any Third Party from Customer's breach of the foregoing obligations. Upon notification from Customer of the occurrence of an error or omission with respect to an ACH entry, Metavante shall promptly furnish corrected ACH entry(ies) to the applicable ACH operator, unless the NACHA rules prohibit the processing of the correct ACH entry(ies).
5. FEES
5.1. Fee Structure. Customer agrees to pay fees for the Initial Services as set forth in the Services and Charges Schedule. If Customer elects to receive Services that are not specifically set forth in the Services and Charges Schedule, Customer agrees to pay fees as mutually agreed upon for such Services. Any Services not identified in the Services and Charges Schedule will be at Metavante's standard list pricing unless the parties mutually agree to pay for those Services as provided in Section 5.7.
5.2. Pricing and Operational Assumptions. The Initial Services shall include at least: (A) the functionality enhancements set forth in the Planned Enhancement and Interface Schedule; and (B) the current capabilities identified in the Current Capabilities Schedule.
5.3. Excluded Costs. The fees set forth in the Services and Charges Schedule do not include Expenses, late fees or charges, or Taxes, all of which shall be the responsibility of Customer.
5.4. Disputed Amounts. If Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good-faith discussions between the parties, Customer shall pay the amounts due under this Agreement minus the disputed amount, and the parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (i) Customer delivers a written statement to Metavante, on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by Customer, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from Customer that are not in dispute have been paid in accordance with the terms of this Agreement. Customer's right to assert claims under this Agreement shall be subject to Customer's payment in full of previously invoiced, past due amounts that have not been disputed in accordance with this Section.
5.5. Terms of Payment. Customer shall pay the Monthly Base Fee in advance on the first day of the calendar month in which the Services are to be performed. Any and all other amounts payable under this Agreement shall be due thirty (30) days following the date of invoice, unless otherwise provided in the Services and Charges Schedule. Undisputed charges not paid by the applicable due date shall be subject to annual interest at the prevailing U.S. prime rate published by Citibank, N.A., from time to time or the highest rate permitted by law, whichever is lower. Customer shall also pay any collection fees, court costs, reasonable attorneys' fees, and other fees, costs, and charges incurred by Metavante in collecting payment of the charges and any other amounts for which Customer is liable under the terms and conditions of this Agreement and which shall be due thirty (30) days following the date of invoice. Customer agrees to maintain a depository account with Oriental Bank and Trust for the payment of amounts payable hereunder and hereby authorizes Metavante to initiate debit entries to such account for the payment of amounts payable hereunder. Customer agrees to provide Metavante with any and all information necessary for Metavante to initiate such debit entries via the Automated Clearing House (ACH) system.
5.6. Modification of Terms and Pricing. Charges for all Services shall be subject to adjustments on each January 1 which shall not exceed, in aggregate effect, the lesser of (i) an annual rate of five percent (5%), or (ii) the change to the Employment Cost Index (over the applicable period).
5.7. *The information in this paragraph is intentionally ommitted because confidential treatment has been requested pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. The omitted information has been filed separately with the U.S. Securities and Exchange Commission.
6. PERFORMANCE WARRANTY/DISCLAIMER OF ALL OTHER WARRANTIES
6.1. Performance Warranty. Metavante warrants that it will provide all Services in a commercially reasonable manner in material conformance with the applicable Documentation (the "Performance Warranty"). Where the parties have agreed upon Service Levels for any aspect of Metavante's performance, such Service Levels shall apply in lieu of the Performance Warranty. THIS PERFORMANCE WARRANTY IS SUBJECT TO THE WARRANTY EXCLUSIONS SET FORTH BELOW IN SECTION 0.
6.2. Performance Warranty Exclusions. Except as may be otherwise expressly agreed in writing by Metavante, Metavante's Performance Warranty does not apply to:
A. defects, problems, or failures caused by the Customer's nonperformance of obligations essential to Metavante's performance of its obligations; and/or
B. defects, problems, or failures caused by an event of force majeure.
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6.3. DISCLAIMER OF ALL OTHER WARRANTIES. THIS PERFORMANCE WARRANTY, AND THE WARRANTIES IN ARTICLE 12 HEREOF, ARE IN LIEU OF, AND METAVANTE DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT METAVANTE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. IN ADDITION, METAVANTE DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT.
7. MODIFICATION OR PARTIAL TERMINATION
7.1. Modifications to Services. Metavante may relocate, modify, amend, enhance, update, or provide an appropriate replacement for the software used to provide the Services, or any element of its systems or processes at any time or withdraw, modify, or amend any function of the Services, provided that the functionality of the Services, any applicable Service Levels, and fees are not materially adversely affected. In no event shall this Section 7.1 require Customer to purchase any New Services from Metavante.
7.2. Partial Termination by Metavante. Except as may be provided in any Schedule, Metavante may, at any time, withdraw any of the Services upon providing ninety (90) days' prior written notice to Customer, provided that Metavante is withdrawing the Service(s) from its entire client base. Metavante may also terminate any function or any Services immediately upon any final regulatory, legislative, or judicial determination that providing such function or Services is inconsistent with applicable law or regulation or the rights of any Third Party. If Metavante terminates any Service pursuant to this paragraph, Metavante agrees to assist Customer, without additional charge, in identifying an alternate provider of such terminated Service, and the Customer shall not be assessed a Termination Fee for such terminated service.
7.3. Partial Termination by Customer. Except as may be provided in any Schedule, Customer agrees that, during the Term, Metavante shall be Customer's sole and exclusive provider of all Services included in Metavante's Integrated Banking Solution (deposit and loan processing services provided by Metavante as of the Commencement Date). If Customer breaches the foregoing covenant, the same shall constitute a partial termination of this Agreement, and Customer shall pay Metavante the Termination Fee for the affected Service, as liquidated damages and not as a penalty.
8. TERMINATION/DEFAULT
8.1. Early Termination. The terms and conditions set forth in this Section 8 shall govern the early termination of this Agreement (or any Service).
8.2. For Cause. If either party fails to perform any of its material obligations (including Section 7.1 hereof) under this Agreement (a "Default") and does not cure such Default in accordance with this Section, then the non-defaulting party may, by giving notice to the other party, terminate this Agreement as of the date specified in such notice of termination, or such later date agreed to by the parties, and/or recover Damages. Except as provided in Section 4.1 C, a party may terminate the Agreement in accordance with the foregoing if such party provides written notice to the defaulting party and either (a) the defaulting party does not cure the Default within sixty (60) days of the defaulting party's receipt of notice of the Default, if the Default is capable of cure within sixty (60) days, or (b) if the Default is not capable of cure within sixty (60) days, the defaulting party does not both (i) implement a plan to cure the Default within sixty (60) days of receipt of notice of the Default, and (ii) diligently carry-out the plan in accordance with its terms. The parties acknowledge and agree that a failure to pay any amount when due hereunder shall be a Default that is capable of being cured within thirty (30) days. Except as provided in the Service Level Schedule, the parties acknowledge and agree that any error in processing data, preparation or filing of a report, form, or file, or the failure to perform Services as required hereunder shall be satisfactorily cured upon the completion of accurate re-processing, the preparation or filing of the accurate report, form, or file, or the re-performance of the Services in accordance with applicable requirements, respectively.
8.3. For Insolvency. In addition to the termination rights set forth in Sections 8.1 and 8.2, subject to the provisions of Title 11, United States Code, if either party becomes or is declared insolvent or bankrupt, is the subject to any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, or is subject to regulatory sanction by any Federal Regulator, then the other party may, by giving written notice to such party, may terminate this Agreement as of a date specified in such notice of termination; provided that the foregoing shall not apply with respect to any involuntary petition in bankruptcy filed against a party unless such petition is not dismissed within sixty (60) days of such filing.
8.4. Termination for Convenience. Customer may elect to terminate this Agreement for any reason upon six months written notice to Metavante, provided Customer shall pay Metavante the "Termination Fee" defined and computed in accordance with the table below. The "Termination Fee" shall be paid prior to the Effective Date of Termination of the Agreement, as applicable. In addition to the foregoing, Customer shall pay to Metavante any amortized but unpaid one-time set-up fees, enhancement fees or implementation fees and all reasonable costs in connection with the disposition of equipment, facilities and contracts exclusively related to Metavante's performance of the Services under this Agreement.
The Termination Fee shall be an amount equal to a percentage of the Estimated Remaining Value as set forth below. The "Estimated Remaining Value" means the mathematical product of (a) the average monthly fee paid by Customer with respect to the Initial Services during the twelve (12) months immediately preceding the Effective Date of Termination, multiplied by (b) the number of unexpired whole months remaining between the Effective Date of Termination and the expiration of the Initial Term. The Termination Fee shall be equal to the Estimated Remaining Value
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For example, if the Customer chose to terminate for convenience on an agreement with a Commencement Date of January 01, 2007 and provided written notice on July 15, 2009 for a termination date of January 15, 2010, the Estimated Remaining Value would be the average monthly fee during 2009 multiplied by 47 and the Termination Fee would be the Estimated Remaining Value.
8.5. *The information in this paragraph is intentionally omitted because confidential treatment has been requested pursuant to Rule 24b- 2 under the Securities Exchange Act of 1934, as amended. The omitted information has been filed separately with the U.S. Securities and Exchange Commission.
8.6. Cease and Desist Order. Customer may terminate this entire Agreement without payment of the Termination Fee by providing written notice to Metavante no later than thirty (30) days following the date that Metavante is subject to a formal cease and desist order duly and properly issued by either (a) the Federal Deposit Insurance Corporation, or (b) the Office of the Financial Institutions Commissioner for the Commonwealth of Puerto Rico, for knowingly or recklessly participating in (i) any violation of any law or regulation; (ii) any breach of fiduciary duty; or (iii) any unsafe or unsound practice, which violation, breach, or practice caused or is likely to cause more than a minimal financial loss to, or a significant adverse effect on, Customer.
9. LIMITATION OF LIABILITY/MAXIMUM DAMAGES ALLOWED
9.1. Equitable Relief. Either party may seek equitable remedies, including injunctive relief, for a breach of the other party's obligations under Article 13 of this Agreement, prior to commencing the dispute resolution procedures set forth in Section 11.1 below.
9.2. Exclusion of Incidental and Consequential Damages. Independent of, severable from, and to be enforced independently of any other provision of this Agreement, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND—including lost profits, loss of business, or other economic damage, and further including injury to property, AS A RESULT OF BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT, INCLUDING ANY FAILURE OF PERFORMANCE, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
9.3. *The information in this paragraph is intentionally omitted because confidential treatment has been requested pursuant to Rule 24b- 2 under the Securities Exchange Act of 1934, as amended. The omitted information has been filed separately with the U.S. Securities and Exchange Commission.
9.4. Statute of Limitations. No lawsuit or other action may be brought by either party hereto, or on any claim or controversy based upon or arising in any way out of this Agreement, after two(2) years from the date on which the party knew or reasonably should have known of an event for which a cause of action arose regardless of the nature of the claim or form of action, whether in contract, tort (including negligence), or otherwise; provided, however, the foregoing limitation shall not apply to the collection of any amounts due Metavante under this Agreement.
9.5. Tort Claim Waiver. In addition to and not in limitation of any other provision of this Article 9, each party hereby knowingly, voluntarily, and intentionally waives any right to recover from the other party, and Customer waives any right to recover from any Eligible Provider, any economic losses or damages in any action brought under tort theories, including, misrepresentation, negligence and/or strict liability, and/or relating to the quality or performance of any products or services provided by Metavante. For purposes of this waiver, economic losses and damages include monetary losses or damages caused by a defective product or service except personal injury or damage to other tangible property. Even if remedies provided under this Agreement shall be deemed to have failed of their essential purpose, neither party shall have any liability to the other party under tort theories for economic losses or damages.
9.6. Liquidated Damages. Customer acknowledges that Metavante shall suffer a material adverse impact on its business if this Agreement is terminated prior to expiration of the Term, and that the resulting damages may not be susceptible of precise determination. Customer acknowledges that the Termination Fee is a reasonable approximation of such damages and shall be deemed to be liquidated damages and not a penalty.
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9.7. Essential Elements. Customer and Metavante acknowledge and agree that the limitations contained in this Article 9 are essential to this Agreement, and that Metavante has expressly relied upon the inclusion of each and every provision of this Article 9 as a condition to executing this Agreement.
10. INSURANCE AND INDEMNITY.
10.1. Insurance. Metavante currently maintains and, if available at a reasonable cost, Metavante shall continue to pay for, and maintain in full force and effect during the Term insurance as follows:
A. Workers' compensation and employers' liability insurance with limits to conform with the greater of the amount required by Wisconsin applicable state statutory law or one million dollars ($1,000,000) each accident, including occupational disease coverage;
B. Commercial general liability insurance with limits not less than three million dollars ($3,000,000) combined single limit for bodily injury, death, and property damage, including personal injury, contractual liability, independent contractors, broad-form property damage, and products and completed operations coverage;
C. Commercial automobile liability insurance with limits not less than one million dollars ($1,000,000) each occurrence combined single limit of liability for bodily injury, death, and property damage, including owned and non-owned and hired automobile coverages, as applicable;
D. Commercial Blanket Bond, including Electronic & Computer Crime or Unauthorized Computer Access coverage, in the amount of not less than ten million dollars ($10,000,000); and
E. Professional liability insurance (Errors and Omissions) with limits not less than three million dollars ($3,000,000) annual aggregate for all claims each policy year for computer programming and electronic data processing services.
F. Claims Made Coverages. To the extent any insurance coverage required under this Section is purchased on a "claims-made" basis, such insurance shall cover all prior acts of Metavante during the Term, and such insurance shall be continuously maintained until at least four (4) years beyond the expiration or termination of the Term, or Metavante shall purchase "tail" coverage, effective upon termination of any such policy or upon termination or expiration of the Term, to provide coverage for at least four (4) years from the occurrence of either such event.
G. Certificates Of Insurance. Certificates of Insurance evidencing all coverages described in this Section shall be furnished to Customer upon request.
10.2. Indemnity.
A. Except as provided in 10.2B below, Customer shall indemnify Metavante from, defend Metavante against, and pay any final judgments awarded against Metavante, resulting from any claim brought by a Third Party against Metavante based on Customer's use of the Services to support its operations, Metavante's compliance with Customer's specifications or instructions, or Metavante's use of trademarks or data supplied by Customer.
B. Metavante shall indemnify Customer from, defend Customer against, and pay any final judgment awarded against Customer, resulting from any claim brought by a Third Party against Customer based on Metavante's alleged infringement of any patent, copyright, or trademark of such Third Party under the laws of the United States, unless and except to the extent that such infringement is caused by Metavante's compliance with Customer's specifications or instructions, or Metavante's use of trademarks or data supplied by Customer.
10.3. Indemnification Procedures. If any Third Party makes a claim covered by Section 10.2 against an indemnitee with respect to which such indemnitee intends to seek indemnification under this Section, such indemnitee shall give notice of such claim to the indemnifying party, including a brief description of the amount and basis therefor, if known. Upon giving such notice, the indemnifying party shall be obligated to defend such indemnitee against such claim, and shall be entitled to assume control of the defense of the claim with counsel chosen by the indemnifying party, reasonably satisfactory to the indemnitee. The indemnitee shall cooperate fully with and assist the indemnifying party in its defense against such claim in all reasonable respects. The indemnifying party shall keep the indemnitee fully apprised at all times as to the status of the defense. Notwithstanding the foregoing, the indemnitee shall have the right to employ its own separate counsel in any such action, but the fees and expenses of such counsel shall be at the expense of the indemnitee. Neither the indemnifying party nor any indemnitee shall be liable for any settlement of action or claim effected without its consent. Notwithstanding the foregoing, the indemnitee shall retain, assume, or reassume sole control over all expenses relating to every aspect of the defense that it believes is not the subject of the indemnification provided for in this Section. Until both (a) the indemnitee receives notice from indemnifying party that it will defend, and (b) the indemnifying party assumes such defense, the indemnitee may, at any time after ten (10) days from the date notice of claim is given to the indemnifying party by the indemnitee, resist or otherwise defend the claim or, after consultation with and consent of the indemnifying party, settle or otherwise compromise or pay the claim. The indemnifying party shall pay all costs of indemnity arising out of or relating to that defense and any such settlement, compromise, or payment. The indemnitee shall keep the indemnifying party fully apprised at all times as to the status of the defense. Following indemnification as provided in this Section, the indemnifying party shall be subrogated to all rights of the indemnitee with respect to the matters for which indemnification has been made.
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11. DISPUTE RESOLUTION
11.1. Representatives of Parties. All disputes arising under or in connection with this Agreement shall initially be referred to the representatives of each party who customarily manages the relationship between the parties. If such representatives are unable to resolve the dispute within five (5) Business Days after referral of the matter to them, the managers of the representatives shall attempt to resolve the dispute. If, after five (5) Business Days they are unable to resolve the dispute, senior executives of the parties shall attempt to resolve the dispute. If, after five (5) Business Days they are unable to resolve the dispute, the parties shall submit the dispute to the chief executive officers of the parties for resolution. Neither party shall commence legal proceedings with regard to a dispute until completion of the dispute resolution procedures set forth in this Section 11.1, except to the extent necessary to preserve its rights or maintain a superior position against other creditors or claimants.
11.2. Continuity of Performance. During the pendency of the dispute resolution proceedings described in this Article 11, Metavante shall continue to provide the Services so long as Customer shall continue to pay all undisputed amounts to Metavante in a timely manner.
12. AUTHORITY
12.1. Metavante. Metavante warrants that:
A. Metavante has the right to provide the Services hereunder, using all computer software required for that purpose.
B. Metavante is a corporation validly existing and in active status under the laws of the State of Wisconsin. It has all the requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement. The execution, delivery, and performance of this Agreement have been duly authorized by Metavante, and this Agreement is enforceable in accordance with its terms against Metavante. No approval, authorization, or consent of any governmental or regulatory authorities is required to be obtained or made by Metavante in order for Metavante to enter into and perform its obligations under this Agreement
12.2. Customer. Customer warrants that:
A. Customer has all required licenses and approvals necessary to use the Services in the operation of its business.
B. Customer is validly existing and in good standing under the laws of the state of its incorporation or charter, or if a national bank, the United States of America. It has all the requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement. The execution, delivery, and performance of this Agreement have been duly authorized by Customer, and this Agreement is enforceable in accordance with its terms against Customer. No approval, authorization, or consent of any governmental or regulatory authorities is required to be obtained or made by Customer in order for Customer to enter into and perform its obligations under this Agreement.
C. In the event that Customer requests Metavante to disclose to any Third Party or to use any of Customer's Confidential Information (as defined in Section 13.3), and such Confidential Information is or may be subject to the Privacy Regulations, such disclosure or use shall be permitted by the Privacy Regulations and by any initial, annual, opt-out, or other privacy notice that Customer issued with respect to such Confidential Information pursuant to the Privacy Regulations.
13. CONFIDENTIALITY AND OWNERSHIP
13.1. Customer Data. Customer shall remain the sole and exclusive owner of all Customer Data and its Confidential Information (as defined in Section 13.3), regardless of whether such data is maintained on magnetic tape, magnetic disk, or any other storage or processing device. All such Customer Data and other Confidential Information shall, however, be subject to regulation and examination by the appropriate auditors and regulatory agencies to the same extent as if such information were on Customer's premises.
13.2. Metavante Systems. Customer acknowledges that it has no rights in any of Metavante's software, systems, documentation, guidelines, procedures, and similar related materials or any modifications thereof, unless and except as expressly granted under this Agreement.
13.3. Confidential Information. "Confidential Information" of a party shall mean all confidential or proprietary information and documentation of such party, whether or not marked as such including, with respect to Customer, all Customer Data. Confidential Information shall not include: (a) information which is or becomes publicly available (other than by the party having the obligation of confidentiality) without breach of this Agreement; (b) information independently developed by the receiving party; (c) information received from a Third Party not under a confidentiality obligation to the disclosing party; or (d) information already in the possession of the receiving party without obligation of confidence at the time first disclosed by the disclosing party. The parties acknowledge and agree that the substance of the negotiations of this Agreement, and the terms of this Agreement are considered Confidential Information subject to the restrictions contained herein.
13.4. Obligations of the Parties. Except as permitted under this Section 13.4 and applicable law, neither party shall use, copy, sell, transfer, publish, disclose, display, or otherwise make any of the other party's Confidential Information available to any Third Party without the prior written consent of the other party. Each party shall hold the Confidential Information of the other party in confidence and shall not disclose or use such Confidential Information other than for the purposes contemplated by this Agreement and, to the extent that Confidential Information of Customer may be subject to the Privacy Regulations, as permitted by the Privacy Regulations, and shall instruct their employees, agents, and contractors to use the same care and discretion with respect to the Confidential Information of the other party or of any Third Party utilized hereunder that Metavante and Customer each require with respect to their own most confidential information, but in no event less than a reasonable standard of care, including the utilization of security devices or procedures designed to
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prevent unauthorized access to such materials. Each party shall instruct its employees, agents, and contractors (a) of its confidentiality obligations hereunder and (b) not to attempt to circumvent any such security procedures and devices. Each party's obligation under the preceding sentence may be satisfied by the use of its standard form of confidentiality agreement, if the same reasonably accomplishes the purposes here intended. All such Confidential Information shall be distributed only to persons having a need to know such information to perform their duties in conjunction with this Agreement. A party may disclose the other party's Confidential Information if required to do so by subpoena, court or regulatory order, or other legal process, provided the party notifies the disclosing party of its receipt of such process, and reasonably cooperates, at the disclosing party's expense, with efforts of the disclosing party to prevent or limit disclosure in response to such process.
13.5. Information Security. Metavante shall be responsible for establishing and maintaining an information security program that is designed to (i) ensure the security and confidentiality of Customer Data, (ii) protect against any anticipated threats or hazards to the security or integrity of Customer Data, (iii) protect against unauthorized access to or use of Customer Data that could result in substantial harm or inconvenience to Customer or any of its customers, and (iv) ensure the proper disposal of Customer Data. Customer shall be responsible for maintaining security for its own systems, servers, and communications links as necessary to (a) protect the security and integrity of Metavante's systems and servers on which Customer Data is stored, and (b) protect against unauthorized access to or use of Metavante's systems and servers on which Customer Data is stored. Metavante will (1) take appropriate action to address any incident of unauthorized access to Customer Data and (2) notify Customer as soon as possible of any incident of unauthorized access to Sensitive Customer Information and any other breach in Metavante's security that materially affects Customer or Customer's customers If the primary federal regulator for Customer is the Office of Thrift Supervision (the "OTS"), Metavante will also notify the OTS as soon as possible of any breach in Metavante's security that materially affects Customer or Customer's customers. Either party may change its security procedures from time to time as commercially reasonable to address operations risks and concerns in compliance with the requirements of this section.
13.6. Ownership and Proprietary Rights. Metavante reserves the right to determine the hardware, software, and tools to be used by Metavante in performing the Services. Metavante shall retain title and all other ownership and proprietary rights in and to the Metavante Proprietary Materials and Information, and any and all derivative works based thereon. Such ownership and proprietary rights shall include any and all rights in and to patents, trademarks, copyrights, and trade secret rights. Customer agrees that the Metavante Proprietary Materials and Information are not "work made for hire" within the meaning of U.S. Copyright Act, 17 U.S.C. Section 101.
13.7. The Privacy Regulations. In the event that Customer requests Metavante to disclose to any Third Party or to use any of Customer's Confidential Information, and such Confidential Information is or may be subject to the Privacy Regulations, Metavante reserves the right, prior to such disclosure or use, (a) to review any initial, annual, opt-out, or other privacy notice that Customer issued with respect to such Confidential Information pursuant to the Privacy Regulations, and if requested by Metavante, Customer shall promptly provide Metavante with any such notice, and (b) to decline to disclose to such Third Party or to use such Confidential Information if Metavante, in Metavante's sole discretion, believes that such disclosure or use is or may be prohibited by the Privacy Regulations or by any such notice.
13.8. Publicity. Neither party shall refer to the other party directly or indirectly in any media release, public announcement, or public disclosure relating to this Agreement or its subject matter, in any promotional or marketing materials, lists, or business presentations, without consent from the other party for each such use or release in accordance with this Section, provided that Metavante may include Customer's name in Metavante's customer list and may identify Customer as its customer in its sales presentations and marketing materials without obtaining Customer's prior consent. Notwithstanding the foregoing, at Metavante's request, Customer agrees to issue a joint press release prepared by Metavante to announce the relationship established by the parties hereunder. Customer agrees that such press release shall be deemed approved by Customer only if written approval notification has been provided by Customer to Metavante, which approval shall not be unreasonably withheld. All other media releases, public announcements, and public disclosures by either party relating to this Agreement or the subject matter of this Agreement (each, a "Disclosure"), including promotional or marketing material, but not including (a) announcements intended solely for internal distribution, or (b) disclosures to the extent required to meet legal or regulatory requirements beyond the reasonable control of the disclosing party, shall be subject to review and approval, which approval shall not be unreasonably withheld, by the other party prior to release. Such approval shall be deemed to be given if a party does not object to a proposed Disclosure within five (5) Business Days of receiving same. Disputes regarding the reasonableness of objections to the joint press release or any Disclosures shall be subject to the Dispute Resolution Procedures of Section 11.1 above.
14. REGULATORY COMPLIANCE AND ASSURANCES
14.1. Legal Requirements.
A. Customer shall be solely responsible for monitoring and interpreting (and for complying with, to the extent such compliance requires no action by Metavante) the Legal Requirements. Based on Customer's instructions, Metavante shall select the processing parameter settings, features, and options (collectively, the "Parameters") within Metavante's system that will apply to Customer. Customer shall be responsible for determining that such selections are consistent with the Legal Requirements and with the terms and conditions of any agreements between Customer and its clients. In making such determinations, Customer may rely upon the written descriptions of such Parameters contained in the User Manuals. Metavante shall perform system processing in accordance with the Parameters.
B. Subject to the foregoing, Metavante shall perform an on-going review of federal laws, rules, and regulations. Metavante shall maintain the features and functions set forth in the User Manuals for each of the Services in accordance with all changes in federal laws, rules, and regulations applicable to such features and functions, in a non-custom environment. For any new federal laws, rules, and regulations, Metavante will perform a business review, with input from Metavante's customers and user groups. If Metavante elects to support a new federal law, rule, or regulation through changes to the Metavante Software, Metavante shall develop and implement modifications to the Services to enable Customer to comply with such new federal laws, rules, and regulations.
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C. In any event, Metavante shall work with Customer in developing and implementing a suitable procedure or direction to enable Customer to comply with federal, Puerto Rico, and state laws, rules, and regulations applicable to the Services being provided by Metavante to Customer, including in those instances when Metavante has elected to, but it is not commercially practicable to, modify the Metavante Software prior to the regulatory deadline for compliance.
14.2. Regulatory Assurances. Metavante and Customer acknowledge and agree that the performance of these Services will be subject to regulation and examination by Customer's regulatory agencies to the same extent as if such Services were being performed by Customer. Upon request, Metavante agrees to provide any appropriate assurances to such agency and agrees to subject itself to any required examination or regulation. Customer agrees to reimburse Metavante for reasonable costs actually incurred due to any such examination or regulation that is performed solely for the purpose of examining Services used by Customer by Puerto Rico authorities.
A. Notice Requirements. Customer shall be responsible for complying with all regulatory notice provisions to any applicable governmental agency, which shall include providing timely and adequate notice to Federal Regulators as of the Effective Date of this Agreement, identifying those records to which this Agreement shall apply and the location at which such Services are to be performed.
B. Examination of Records. The parties agree that the records maintained and produced under this Agreement shall, at all times, be available at the Operations Center for examination and audit by governmental agencies having jurisdiction over the Customer's business, including any Federal, State or Puerto Rico Regulator. The Director of Examinations of any Federal, State or Puerto Rico Regulator or his or her designated representative shall have the right to ask for and to receive directly from Metavante any reports, summaries, or information contained in or derived from data in the possession of Metavante related to the Customer. Metavante shall notify Customer as soon as reasonably possible of any formal request by any authorized governmental agency to examine Customer's records maintained by Metavante, if Metavante is permitted to make such a disclosure to Customer under applicable law or regulations. Customer agrees that Metavante is authorized to provide all such described records when formally required to do so by a Federal, State or Puerto Rico Regulator.
C. Audits. Metavante shall cause a Third Party review of its operations and related internal controls to be conducted annually by its independent auditors in accordance with SAS 70 of the AICPA for Type II audits. Metavante shall provide to Customer one copy of the audit report resulting from such review.
D. IRS and Treasury Department Filing. Customer represents it has complied with all laws, regulations, procedures, and requirements in attempting to secure correct tax identification numbers (TINs) for Customer's payees and customers and agrees to attest to this compliance by an affidavit provided annually.
15. DISASTER RECOVERY
15.1. Services Continuity Plan. Throughout the Term of the Agreement, Metavante shall maintain a Services Continuity Plan (the "Plan") in compliance with applicable regulatory requirements. Review and acceptance of the Plan, as may be required by any applicable regulatory agency, shall be the responsibility of Customer. Metavante shall cooperate with Customer in conducting such reviews as such regulatory agency may, from time to time, reasonably request. A detailed Executive Summary of the Plan has been provided to Customer. Updates to the Plan shall be provided to Customer without charge.
15.2. Relocation. If appropriate, Metavante shall relocate all affected Services to an alternate disaster recovery site as expeditiously as possible after declaration of a Disaster, and shall coordinate with Customer all requisite telecommunications modifications necessary to achieve full connectivity to the disaster recovery site, in material compliance with all regulatory requirements. "Disaster" shall have the meaning set forth in the Plan.
15.3. Resumption of Services. The Plan provides that, in the event of a Disaster, Metavante will be able to resume the Services in accordance therewith within the time periods specified in the Plan. In the event Metavante is unable to resume the Services to Customer within the time periods specified in the Plan, Customer shall have the right to terminate this Agreement without payment of the Termination Fee upon written notice to Metavante delivered within forty-five (45) days after declaration of such Disaster. The determination by Customer to terminate this Agreement shall be effective immediately upon written notification to Metavante. Customer shall receive any credits due and unpaid by Metavante as of the date of termination of this Agreement. During interruption of Services, the payment by Customer for interrupted Services shall be abated.
15.4. Annual Test. Metavante shall test its Plan by conducting one (1) test annually and shall provide Customer with a description of the test results in accordance with applicable laws and regulations.
16. MISCELLANEOUS PROVISIONS
16.1. Equipment and Network. Customer shall obtain and maintain at its own expense its own data processing and communications equipment as may be necessary or appropriate to facilitate the proper use and receipt of the Services, provided that Metavante shall procure certain equipment for Customer as set forth in the Strategic Network Solutions Schedule attached hereto. Customer shall pay all installation, monthly, and other charges relating to the installation and use of communications lines between Customer's datacenter and the Operations Center, as set forth in the Network Schedule. Metavante maintains and will continue to maintain a network control center with diagnostic capability to monitor reliability and availability of the communication lines described in the Network Schedule, but Metavante shall not be responsible for the continued availability or reliability of such communications lines. Metavante agrees to provide services to install, configure, and support the wide-area network to interconnect Customer to the Operations Center as described in, and subject to the terms and conditions of, the Network Schedule.
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16.2. Data Backup. Customer shall maintain adequate records for at least ten (10) Business Days, including backup on magnetic tape or other electronic media where transactions are being transmitted to Metavante, from which reconstruction of lost or damaged files or data can be made. Customer assumes all responsibility and liability for any loss or damage resulting from failure to maintain such records.
16.3. Balancing and Controls. Customer shall (a) on a daily basis, review all input and output, controls, reports, and documentation, to ensure the integrity of data processed by Metavante; and (b) on a daily basis, check exception reports to verify that all file maintenance entries and non-dollar transactions were correctly entered. Customer shall be responsible to notify Metavante immediately in the event of any error so that Metavante may initiate timely remedial action to correct any improperly processed data which these reviews disclose. In the event of any error by Metavante in processing any data or preparing any report or file, Metavante shall correct the error by reprocessing the affected data or preparing and issuing a new file or report at no additional cost to Customer.
16.4. Future Acquisitions. Customer acknowledges that Metavante has established the Fee Schedule(s) and enters into this Agreement on the basis of Metavante's understanding of the Customer's current need for Services and Customer's anticipated future need for Services as a result of internally generated expansion of its customer base. If the Customer expands its operations by acquiring Control of additional financial institutions or if Customer experiences a Change in Control, the following provisions shall apply:
A. Acquisition of Additional Entities. If, after the Effective Date, Customer acquires Control of one or more financial holding companies, banks, savings and loan associations, or other financial institutions that are not currently Affiliates, Metavante agrees to provide Services for such new Affiliates, and such Affiliates shall automatically be included in the definition of "Customer"; provided that (i) the conversion of each new Affiliate must be scheduled at a mutually agreeable time (taking into account, among other things, the availability of Metavante conversion resources) and must be completed before Metavante has any obligation to provide Services to such new Affiliate; (ii) the Customer will be liable for any and all Expenses in connection with the conversion of such new Affiliate; and (iii) Customer shall pay conversion fees in an amount to be mutually agreed upon with respect to each new Affiliate.
B. Change in Control of Customer. If a Change in Control occurs with respect to Customer, Metavante agrees to continue to provide Services under this Agreement; provided that (a) Metavante's obligation to provide Services shall be limited to the Entities comprising the Customer prior to such Change in Control and (b) Metavante's obligation to provide Services shall be limited in any and all circumstances to the number of accounts processed in the three (3) -month period prior to such Change in Control occurring, plus twenty-five percent (25%).
16.5. Transmission of Data. If the Services require transportation or transmission of data between Metavante and Customer, the responsibility and expense for transportation and transmission of, and the risk of loss for, data and media transmitted between Metavante and Customer shall be borne by Customer. Data lost by Metavante following receipt shall either be restored by Metavante from its backup media or shall be reprocessed from Customer's backup media at no additional charge to Customer.
16.6. Reliance on Data. Metavante will perform the Services described in this Agreement on the basis of information furnished by Customer. Metavante shall be entitled to rely upon any such data, information, directions, or instructions as provided by Customer (whether given by letter, memorandum, telegram, cable, telex, telecopy facsimile, computer terminal, e-mail, other "on line" system or similar means of communication, or orally over the telephone or in person), and shall not be responsible for any liability arising from Metavante's performance of the Services in accordance with Customer's instructions. Customer assumes exclusive responsibility for the consequences of any instructions Customer may give Metavante, for Customer's failure to properly access the Services in the manner prescribed by Metavante, and for Customer's failure to supply accurate input information. If any error results from incorrect input supplied by Customer, Customer shall be responsible for discovering and reporting such error and supplying the data necessary to correct such error to Metavante for processing at the earliest possible time.
16.7. Use of Services. Customer agrees that, except as otherwise permitted in this Agreement or in writing by Metavante, Customer will use the Services only for its own internal business purposes to service its bona fide customers and clients and will not sell or otherwise provide, directly or indirectly, any of the Services or any portion thereof to any Third Party. Customer agrees that Metavante may use all suggestions, improvements, and comments regarding the Services that are furnished by Customer to Metavante in connection with this Agreement, without accounting or reservation. Unless and except to the extent that Metavante has agreed to provide customer support services for Customer, Customer shall be responsible for handling all inquiries of its customers relating to Services performed by Metavante, including inquiries regarding credits or debits to a depositor's account. Metavante agrees to reasonably assist Customer in responding to such inquiries by providing such information to Customer as Metavante can reasonably provide.
16.8. Financial Statements. Metavante agrees to furnish to the Customer copies of the then-current annual report for the Marshall & Ilsley Corporation, within forty-five (45) days after such document is made publicly available.
16.9. Performance by Subcontractors. Customer understands and agrees that the actual performance of the Services may be made by Metavante, one or more Affiliates of Metavante, or subcontractors of any of the foregoing Entities (collectively, the "Eligible Providers"). For purposes of this Agreement, performance of the Services by any Eligible Provider shall be deemed performance by Metavante itself. Metavante shall remain fully responsible for the performance or non-performance of the Services by any Eligible Provider, to the same extent as if Metavante itself performed or failed to perform such services. Customer agrees to look solely to Metavante, and not to any Eligible Provider, for satisfaction of any claims Customer may have arising out of this Agreement or the performance or nonperformance of Services. However, in the event that Customer contracts directly with a Third Party for any products or services, Metavante shall have no liability to Customer for such Third Party's products or services, even if such products or services are necessary for Customer to access or receive the Services hereunder.
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16.10. Solicitation. Neither party shall solicit the employees of the other party for employment during the Term of this Agreement, for any reason. The foregoing shall not preclude either party from employing any such employee (a) who seeks employment with the other party in response to any general advertisement or solicitation that is not specifically directed towards employees of such party or (b) who contacts the other party on his or her own initiative without any direct or indirect solicitation by such party.
16.11. Taxes. Customer shall be solely and exclusively responsible for the payment of Taxes arising from or relating to the services rendered or material furnished, pursuant to this Agreement. Any other tax or governmental assessment applicable as a result of the execution or performance of any service pursuant to this Agreement, or any materials furnished with respect to this Agreement, including, without limitation, any income, franchise, royalty, privilege, or similar tax on or measured by Metavante's net income, capital stock, franchise or net worth, as well as any municipal license tax imposed on Metavante's volume of business, as a consequence of Metavante being deemed engaged in commercial activities within a Puerto Rico municipality, shall be Metavante's sole and exclusive responsibility. Payments made by Customer to Metavante will be subject to applicable withholding taxes. In the event any taxing authority withholds or intercepts any amount due to Licensor hereunder, which is properly payable by Customer, and after Customer has met withholding requirements, Customer shall pay to Licensor on demand the full amount of such additional withholding or intercepted payment.
17. GENERAL
17.1. Governing Law. The validity, construction and interpretation of this Agreement and the rights and duties of the parties hereto shall be governed by the internal laws of the State of New York, excluding its principles of conflict of laws.
17.2. Venue and Jurisdiction. Intentionally omitted.
17.3. Entire Agreement; Amendments. This Agreement, together with the schedules hereto, constitutes the entire agreement between Metavante and the Customer with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such matter. This Agreement, including the schedules hereto, may be amended only by an instrument in writing executed by the parties or their permitted assignees.
17.4. Relationship of Parties. The performance by Metavante of its duties and obligations under this Agreement shall be that of an independent contractor and nothing contained in this Agreement shall create or imply an agency relationship between Customer and Metavante, nor shall this Agreement be deemed to constitute a joint venture or partnership between Customer and Metavante.
17.5. Assignment. Neither this Agreement nor the rights or obligations hereunder may be assigned by either party, by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided that (a) Metavante's consent need not be obtained in connection with the assignment of this Agreement pursuant to a merger in which Customer is a party and as a result of which the surviving Entity becomes an Affiliate or Subsidiary of another bank holding company, bank, savings and loan association or other financial institution, so long as the provisions of all applicable Schedules are complied with; and (b) Metavante may freely assign this Agreement so long as it is (i) in connection with a merger, corporate reorganization, or sale of all or substantially all of its assets, stock, or securities, or (ii) to any Entity which is a successor to the assets or the business of Metavante.
17.6. Notices. Except as otherwise specified in the Agreement, all notices, requests, approvals, consents, and other communications required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by (a) first-class U.S. mail, registered or certified, return receipt requested, postage pre-paid; or (b) U.S. express mail, or other, similar overnight courier service to the address specified below. Notices shall be deemed given on the day actually received by the party to whom the notice is addressed. In the case of Customer: ORIENTAL FINANCIAL GROUP INC. 997 San Roberto Street Tenth Floor San Juan, PR 00926 Attn.: For Billing Purposes: SAME In the case of Metavante: METAVANTE CORPORATION 4900 West Brown Deer Road Milwaukee WI 53223 Attn: Senior Executive Vice President, Metavante Corp. Copy to: Risk Management and Legal Division
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17.7. Waiver. No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.
17.8. Severability. If any provision of this Agreement is held by court or arbitrator of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement will remain in full force and effect. Articles 5, 8, 9, 0, and 17 shall survive the expiration or earlier termination of this Agreement for any reason.
17.9. Attorneys' Fees and Costs. If any legal action is commenced in connection with the enforcement of this Agreement or any instrument or agreement required under this Agreement, the prevailing party shall be entitled to costs, attorneys' fees actually incurred, and necessary disbursements incurred in connection with such action, as determined by the court.
17.10. No Third Party Beneficiaries. Each party intends that this Agreement shall not benefit, or create any right or cause of action in or on behalf of, any person or entity other than the Customer and Metavante.
17.11. Force Majeure. Notwithstanding any provision contained in this Agreement, neither party shall be liable to the other to the extent fulfillment or performance if any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; strikes; lack of available resources from persons other than parties to this Agreement; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; federal, state or municipal action; statute; ordinance or regulation; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent, whether of the class of causes hereinbefore enumerated or not. This clause shall not apply to the payment of any sums due under this Agreement by either party to the other. Notwithstanding the foregoing, an event of force majeure shall not excuse Metavante from performing its obligations under the Plan.
17.12. Negotiated Agreement. Metavante and Customer each acknowledge that the limitations and exclusions contained in this Agreement have been the subject of active and complete negotiation between the parties and represent the parties' voluntary agreement based upon the level of risk to Customer and Metavante associated with their respective obligations under this Agreement and the payments to be made to Metavante and the charges to be incurred by Metavante pursuant to this Agreement. The parties agree that the terms and conditions of this Agreement shall not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of this document.
17.13. Waiver of Jury Trial. Each of Customer and Metavante hereby knowingly, voluntarily and intentionally waives any and all rights it may have to a trial by jury in respect of any litigation based on, or arising out of, under, or in connection with, this Agreement or any course of conduct, course of dealing, statements (whether verbal or written), or actions of Metavante or Customer, regardless of the nature of the claim or form of action, contract or tort, including negligence.
18. DEFINITIONS. The following terms shall have the meanings ascribed to them as follows:
A. "ACH" shall mean automated clearing house services.
B. "Affiliate" shall mean, with respect to Customer, those Entities listed in Exhibit A, attached hereto and any other Entity at any time Controlling, Controlled by, or under common Control of Customer to which Customer and Metavante shall agree in writing that it will receive Services under this Agreement. Metavante's Affiliates are those Entities at any time Controlling, Controlled by, or under common Control of Metavante.
C. "Agreement" shall mean this master agreement and all schedules and exhibits attached hereto, which are expressly incorporated, any future amendments thereto, and any future schedules and exhibits added hereto by mutual agreement.
D. "Business Days" shall be Mondays through Fridays except holidays recognized by the Federal Reserve Bank of New York.
E. "Change in Control" shall mean any event or series of events by which (i) any person or entity or group of persons or entities shall acquire Control of another person or entity or (ii) in the case of a corporation, during any period of twelve consecutive months commencing before or after the date hereof, individuals who, at the beginning of such twelve-month period, were directors of such corporation shall cease for any reason to constitute a majority of the board of directors of such corporation.
F. "Commencement Date" shall mean the date on which Metavante first provides the Initial Services to Customer.
G. "Confidential Information" shall have the meaning set forth in Section 13.3.
H. "Consumer" shall mean an individual who obtains a financial product or service from Customer to be used primarily for personal, family, or household purposes and who has a continuing relationship with Customer.
I. "Contract Year" shall mean successive periods of twelve months, the first of which (being slightly longer than twelve (12) months) shall commence on the Commencement Date and terminate on the last day of the month in which the first anniversary of the Commencement Date occurs.
J. "Control" shall mean the direct or indirect ownership of over fifty percent (50%) of the capital stock (or other ownership interest, if not a corporation) of any Entity or the possession, directly or indirectly, of the power to direct the management and policies of such Entity by ownership of voting securities, by contract or otherwise. "Controlling" shall mean having Control of any Entity, and "Controlled" shall mean being the subject of Control by another Entity.
K. "Conversion" shall mean (i) the transfer of Customer's data processing and other information technology services to Metavante's systems; (ii) completion of upgrades, enhancements and software modifications as set forth in this Agreement; and (iii) completion of all interfaces set forth in this Agreement and full integration thereof such that Customer is able to receive the Initial Services in a live operating environment.
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L. "Conversion Date" shall mean the date on which Conversion for Customer or a particular Affiliate has been completed.
M. "Customer" shall mean the Entity entering into this Agreement with Metavante and all Affiliates of such Entity for whom Metavante agrees to provide Services under this Agreement, as reflected on the first page of this Agreement or amendments executed after the Effective Date.
N. "Customer Data" means any and all data and information of any kind or nature submitted to Metavante by Customer, or received by Metavante on behalf of Customer, necessary for Metavante to provide the Services.
O. "Damages" shall mean actual and verifiable monetary obligations incurred, or costs paid (except overhead costs, attorneys' fees, and court costs) which (i) would not have been incurred or paid but for a party's action or failure to act in breach of this Agreement, and (ii) are directly and solely attributable to such breach, but excluding any and all consequential, incidental, punitive and exemplary damages, and/or other damages expressly excluded by the terms of this Agreement.
P. "Documentation" shall mean Metavante's standard user instructions relating to the Services, including tutorials, on-screen help, and operating procedures, as provided to Customer in written or electronic form.
Q. "Effective Date" shall mean the date so defined on the signature page of this Agreement, or, if blank, the date executed by Metavante, as reflected in Metavante's records.
R. "Effective Date of Termination" shall mean the last day on which Metavante provides the Services to Customer (excluding any services relating to termination assistance).
S. "Eligible Provider" shall have the meaning as set forth in Section 16.9.
T. "Employment Cost Index" shall mean the Employment Cost Index—Civilian (not seasonally adjusted) as promulgated by the United States Department of Labor's Bureau of Labor Statistics (or any successor index).
U. "Entity" means an individual or a corporation, partnership, sole proprietorship, limited liability company, joint venture, or other form of organization, and includes the parties hereto.
V. "Estimated Remaining Value" shall mean the number of calendar months remaining between the Effective Date of Termination and the last day of the contracted-for Term, multiplied by the average of the three (3) highest monthly fees (but in any event no less than the Monthly Base Fee or other monthly minimums) payable by Customer during the twelve (12) -month period prior to the event giving rise to termination rights under this Agreement. In the event the Effective Date of Termination occurs prior to expiration of the First Contract Year, the monthly fees used in calculating the Estimated Remaining Value shall be the greater of (i) the estimated monthly fees set forth in the Fee Schedule(s) and (ii) the average monthly fees described in the preceding sentence.
W. "Expenses" shall mean any and all reasonable and direct expenses paid by Metavante to Third Parties in connection with Services provided to or on behalf of Customer under this Agreement, including any postage, supplies, materials, travel and lodging, and telecommunication fees, but not payments by Metavante to Eligible Providers.
X. "Federal Regulator" shall mean the Chief Examiner of the Federal Home Loan Bank Board, the Office of Thrift Supervision, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Federal Reserve Board, or their successors, as applicable.
Y. "Fee Schedule" shall mean the portions of schedules containing fees and charges for services rendered to Customer under this Agreement.
Z. "Initial Services" shall mean all Services requested by Customer from Metavante under this Agreement prior to the Commencement Date, other than the Conversion services. The Initial Services requested as of the Effective Date are set forth in the schedules attached hereto, which shall be modified to include any additional services requested by Customer prior to the Commencement Date.
AA. "Initial Term" shall mean the period set forth on the first page of this Agreement.
BB. "Legal Requirements" shall mean the federal, Puerto Rico, and state laws, rules, and regulations pertaining to Customer's business.
CC. "Metavante Proprietary Materials and Information" shall mean the Metavante Software and all source code, object code, documentation (whether electronic, printed, written, or otherwise), working papers, non-customer data, programs, diagrams, models, drawings, flow charts, and research (whether in tangible or intangible form or in written or machine-readable form), and all techniques, processes, inventions, knowledge, know-how, trade secrets (whether in tangible or intangible form or in written or machine-readable form), developed by Metavante prior to or during the Term of this Agreement, and such other information relating to Metavante or the Metavante Software that Metavante identifies to Customer as proprietary or confidential at the time of disclosure.
DD. "Metavante Software" shall mean the software owned by Metavante and used to provide the Services.
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EE. "Monthly Base Fee" shall mean the minimum monthly fees payable by Customer to Metavante as specifically set forth in the Services and Charges Schedule.
FF. "Network" shall mean a shared system operating under a common name through which member financial institutions are able to authorize, route, process and settle transactions (e.g., MasterCard and Visa).
GG. "New Services" shall mean any services that are not included in the Initial Services but which, upon mutual agreement of the parties, are added to this Agreement. Upon such addition, New Services shall be included in the term "Services."
HH. "Performance Warranty" shall have the meaning set forth in Section 6.1.
II. "Plan" shall have the meaning set forth in Section 15.1.
JJ. "Privacy Regulations" shall mean the regulations promulgated under Section 504 of the Gramm-Leach-Bliley Act, Pub. L. 106- 102, as such regulations may be amended from time to time.
KK. Professional Services" shall mean services provided by Metavante for Conversion, training, and consulting, and services provided by Metavante to review or implement New Services or enhancements to existing Services.
LL. "Sensitive Customer Information" shall mean Customer Data with respect to a Consumer that is (a) such Consumer's name, address or telephone number, in conjunction with such Consumer's Social Security number, account number, credit or debit card number, or a personal identification number or password that would permit access to such Consumer's account or (b) any combination of components of information relating to such Consumer that would allow a person to log onto or access such Consumer's account, such as user name and password or password and account number.
MM. "Services" shall mean the services, functions, and responsibilities described in this Agreement to be performed by Metavante during the Term and shall include New Services that are agreed to by the parties in writing.
NN. "Service Levels" shall mean those service levels set forth in the Service Level Schedule.
OO. "Taxes" shall mean any manufacturers, sales, use, gross receipts, excise, personal property, or similar tax or duty assessed by any governmental or quasi-governmental authority upon or as a result of the execution or performance of any service pursuant to this Agreement or materials furnished with respect to this Agreement, except any income, franchise, privilege, or similar tax on or measured by Metavante's net income, capital stock, net worth or municipal license tax imposed on Metavante's volume of business.
PP. "Term" shall mean the Initial Term and any extension thereof, unless this Agreement is earlier terminated in accordance with its provisions.
QQ. "Termination Fee" shall have the meaning set forth on the Termination Fee Schedule.
RR. "Third Party" shall mean any Entity other than the parties or any Affiliates of the parties.
SS. "Tier 1 Support" shall mean the provision of customer service and technical support to end users. The Metavante customer care agents provide assistance with the following, but not limited to payment verification, payee set up, opening service requests for payment research, user education on how to use the Metavante products, technical support with using and accessing the products, and technical support for some browser issues.
TT. "Tier 2 Support" shall mean the provision of support to end users for consumer initiated payment issues such as payment not posted, stop payment, late fees, and payment posted for incorrect amount. The Metavante payment research team acts as an advocate to the payee on behalf of the end-user to research and resolve the payment issue in a timely manner.
UU. "User Manuals" shall mean the documentation provided by Metavante to Customer which describes the features and functionalities of the Services, as modified and updated by the customer bulletins distributed by Metavante from time to time.
VV. "Visa" shall mean VISA U.S.A., Inc.
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EXHIBIT A
LIST OF AFFILIATES OF ORIENTAL FINANCIAL GROUP INC.
1. Oriental Bank and Trust
2. Oriental International Bank Inc.
3. Oriental Mortgage Corporation
4. Oriental Financial Services Corp.
5. Oriental Insurance, Inc.
6. Caribbean Pension Consultants, Inc.
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CURRENT CAPABILITIES SCHEDULE
*The information in this schedule, which consists of 17 pages, is intentionally omitted because confidential treatment has been requested pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. The omitted information has been filed separately with the U.S. Securities and Exchange Commission.
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CONVERSION PLAN SCHEDULE
The schedule listed below has been developed based on the information provided to date. Time frames and activities are subject to change as the project is further defined. As applicable, in addition to the schedule below, an issues list accompanies this Schedule to outline specific responsibilities, which are part of this Conversion project plan. The issues list documents the parties' understandings and commitments as of the Effective Date, and shall be supplemented throughout the Conversion Period as additional information is made available and further agreements are made by the parties. Weeks Prior To Conversion Event 37 Weeks Project Organization and Administration
Specific individuals to support this Conversion will be assigned at the Customer and at Metavante. Internal project initiation documents will be completed, and a detailed project plan will be developed at Metavante. 36 Weeks Project Kickoff Meeting
A kickoff meeting is held at the bank to introduce Metavante Conversion Project Management to the Customer's project team. The overall Conversion process will be reviewed. Specific details will be discussed regarding project scope, roles and responsibilities, Conversion major events, and critical success factors. Equipment/Network Assessment
Each office will be visited to record the layout of each location from a network perspective and to inventory existing equipment, including terminals, printers, ATM machines, controllers, and modems. This information will be evaluated to determine requirements for the future. High-Level Application and Operations Review
A discussion of each application will be conducted at a high level to better understand services provided to existing customers. Current operational processes supported, such as item capture, statement rendering, and exception items, will be reviewed as well as interfaces to the current processor to clarify service requirements and special needs. Conversion Tapes Ordered Conversion tapes will be ordered from the appropriate service providers. 30 Weeks Equipment/Network Plan Development
Based on the Equipment/Network Assessment, an Equipment/Network Plan with a network design and hardware/software requirements will be developed. Staff Training at Metavante
Key individuals from the Bank will attend application training at Metavante to help with Conversion analysis and to prepare to train others at the Bank. 20 Weeks MIFIL Reports Created
Metavante reports will be produced using the Conversion test tapes to list each field, all values found in each field, and the number of occurrences of each value. 18 Weeks Product Mapping
Meetings will be conducted with Metavante product support representatives to review the business processes supported by the Bank based on the product knowledge of Bank personnel, current application documentation, and Conversion file record layouts. Each field will be discussed for clarification and determination of the corresponding use on the Metavante System. All backroom support will be reviewed, a general training plan will be developed, and enhancements will be identified. 16 Weeks Training Bank and Training Network Established
A training Bank will be set up on the Metavante system to facilitate training of Bank staff and testing of the Conversion. The appropriate network and equipment will be installed at designated training locations. 10 Weeks Test Report Review
Conversion Test Reports will be reviewed by the product support representative with key contacts at the Bank to verify accuracy of the Conversion process. Issues will be identified and addressed. Operational Analysis
Business processes, as planned, will be reviewed to confirm that system parameters and processes are aligned with operational procedures. Issues will be identified and addressed.
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Weeks Prior To Conversion Event 6 Weeks Bank Network Installed
The network to support all Bank locations will be installed. As a general rule, one terminal will be installed at each location in preparation for Readiness Review. The remainder of the equipment will be installed during the last few days before the Conversion. 4 Weeks Readiness Review
This is a three-day test of our preparedness for the live Conversion with Metavante project staff on-site for support. Test scripts will be distributed to Bank personnel at each location for data entry on the training Bank. Nightly posting will be run with item capture test files as input, reports will be produced, and the test Bank will be balanced each day. Bank personnel will be asked to support all functions of this test using operational procedures from data entry to balancing. This will give Bank staff a chance to practice using the system and gain confidence before dealing with their customers in a production environment. It also will serve to validate network configuration, interface processes, staff training, and operational procedures. Issues will be identified and addressed. 2 Weeks Final Preparation for Conversion
Technical setup for the Conversion will be reviewed for accuracy, and follow-up calls will be made to external firms supporting the Bank to confirm previously made arrangements (Federal Reserve, current software vendors, ATM support, etc.). A detailed Conversion Weekend Plan will be developed and distributed to all key contacts. 0 Weeks Files Converted, "Live" on Metavante
Files will be converted to Metavante over Conversion weekend, after posting on the old processor for Friday night. Conversion Support On-Site
The Metavante project manager and product support representatives will be on-site the week following Conversion to support Bank personnel.
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STANDARD CONVERSION SERVICES
(Any Conversion Services not included in this list are subject to Metavante's pricing as provided in Section 5.7 of the Agreement)
Project Management
• Overall Implementation Management
• Manage Conversion Milestones
• Issue Escalation and Resolution
• Administer Project Plan
• Facilitate Periodic Meetings
• Coordinate Receipt of Data Files
• Development of Conversion Cut-over Plan
Project Planning
• Onsite Scope Definition (products and conversion methods)
• Onsite Conversion Kickoff
• Detailed definition of Interfaces and Enhancements
• Provide Samples of Customer, Internal and Vendor Communication
• Finalize Project Timeline
• Understand Elements of Success
• Define Team Structure/Responsibilities
• Technical Review to Include Network, Equipment and Training Site Automated Product Conversion of Existing Data
• Deposits Including Demand, Money Market, NOW, Savings, CD's, IRA's, Passbooks
• Combined Statements
• Customer Information System (Tape to Tape) Including Deposits, Loans, Cardbase, Safe Deposit, Internet Banking
• Integrated Funds Management (Transfers)
• Safe Box
• Account Analysis
• Loans Including Commercial, Consumer, Mortgage/Investor, Revolving Credit, Floor Plans
• On-Line Collections
• Overdraft Protection (Loan System)
• Notepad (existing system only)
• Collateral
• Tickler
• Financial Control/General Ledger
• Internet Banking
• Bill Payment
• Account Reconciliation
• ATM/Debit Cards
• Credit Cards/Merchant Services
• ATM Devices
Product Set-Ups (If contracted for)
• On-line Collections
• Letter Writer
• Remote Capture to Include Item Processing Transmission
• Printback to Include Configuration and Setup of BARR System
• IRS Government Reporting
• Currency Transaction Reporting
• Cash Management
• ACH
• Exception Desktop Standard Features
• Metavante Insight
• Enterprise Contact Management
• Credit Revue
• Shared VRU
• Information Desktop
• TellerInsight
• BankerInsight
• Star View and PC STAR
• CIS Householding with base plan for Clean CIS (Post Conversion)
• Relationship Profitability (Post Conversion)
• Relationship Packaging (Post Conversion)
• Marketing Suite (Post Conversion)
• Financial Control/GL Application Interfaces
• Holding Company Chart and Control File
• Chart of Accounts
• Internet Banking
• Bill Payment
• Custom Statement Format
• Bank Control Setups-System Parameters
• System Generated Reports
• ATM Management System
• Print setup for ATM Receipts and Deposit Envelopes (Parameters dependent on device type)
• Settlement Manager
• Debit Dispute System
• Predictive Risk Management
• Card Activation
• Card Personalization with no re-issue
• GHR Lending
• Wholesale Website
• Consumer Lending
• Mortgage Lending
• Image Solutions
• Vision Content (Reports, Deposits, Lending, COLD)
• Metavante Long Term Archive (7 years)
Product Definition
• Review of Current Processor Files and Customer Disclosure Information
• Onsite Product Review and Mapping of Some Applications
• Creation of Data Extracts from Current Processor Files
• Branch Software Customization Requirement Definition
• Automated Data Mapping Tools
• Assist with MICR Document Definition
• Assist with Output Form Definition
Testing/Verification
2 Full Test Files and Live Conversion File
• Duplicate Account Checks and Renumbering of Duplicates
• One-time Creation of File to Order New Documents for Duplicate Accounts
• Conversion Program Coding
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• Branch Software Testing
• System to System Reconciliation
• Reconcile Converted Applications to Converted GL
• Internal Verification of Converted Data
• Test "End of Day" Processing
• Testing the Item Processing Transmissions to Include POD, Bulk File and Inclearings
• Testing of Report Transmission and Print
Customer Acceptance
• Provide Test Report and Mapping Specifications for Verification
• One Set of Pre and Post Verification Reports Provided
• Provide Guidance For:
• Converted Data Verification By Customer
• System Parameter Review
• Review and Testing of All Software Customization
• Test Report Provided on CD ROM or Transmission to Optical
Monetary History Conversion
• Retirement Transactions
• No Book Transactions for Passbooks
• Year-to-Date Interest for Both Loans and Deposits
• Year-to-Date Withholding (back-up and retirement distribution)
• Year-to-Date Penalty (forfeiture)
• Retirement Contributions
• Retirement Distributions
• Investor Loan History Since Last Cut-off
• History for Current Year and 2 Prior Years on General Ledger-Balances Only
• General Ledger Current Year Budget
• Outstanding Billing Amounts
Technical Setup Coordination
• Installation of Network Circuits and Communication Equipment
• Setup Training Site
• Setup Branch Training Workstations
Training (See Conversion Training Document)
• Provide "Needs Analysis" to Assist in Determining Training Requirements
• Provide Tools to Assist in Developing a Training Plan
• Establish a Production Bank in the Conversion Process to Facilitate Training
• Train-the-Trainer Classes at a Metavante Location for Core Applications
• On-site Branch Software Training
Operational Analysis
• Joint Review of Workflow/Business Processes
• Process Documented by Job Function
Readiness Review
• A Coordinated Three Day Event Testing Daily Activities/Workflow
• Processing in a Production Environment:
• POD Capture and Posting of Test Data
• EOD Processing
• ATM Loads and Communications
• Onsite Support and Management
• Customized Application Checklists and Sample Scripts Provided
• Management Report Identifying Areas of Risk and Follow-up
• Introduction to Client Relationship Manager
Stabilization Period
• All Conversion Programs and Software Customization is Frozen to Ensure Stable Environment
• Managed Process For Changes Required During This Period
Conversion Cut-over
• Implement Conversion Cut-over Plan
• Convert Production Files From Current Processor After Friday Night Posting
• Data Conversion Verification
• Convert ATM Devices
• 1-50-converted conversion week
• >50-converted 2-4 weeks prior to conversion week
• System to System Reconciliation
• Conversion Reports on CD ROM
• Assistance in Coordinating:
• Equipment Installation
• Deployment and Certification of Final Branch Automation Software
Conversion Week
• Centralized Onsite Management and Application Support
• Conduct Daily Management Meetings
• Document and Monitor Issues
• Reconcile Converted Applications to General Ledger and Support Daily Balancing Activity Related to Converted Applications
• Monitor Daily Proof Process
Post Conversion
• Support for first Account Analysis Statement
• Support for first Investor Cutoff
• Year-end Testing
• Transition to Ongoing Support Area Two Weeks After Conversion Date
• Transition to Client Relationship Manager
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ADDITIONAL CUSTOMER CONVERSION RESPONSIBILITIES
1. Customer shall develop the MS Access based IRA companion application required to accommodate the following:
a. YTD and Life-to-date taxable vs. non-taxable interest & principal on contributions and distributions (must allow for update of this information based upon transactions passed from Metavante)
b. Records of early payment of taxes which also reduces total taxable base
c. Must accept a file from BIC of all automated transactions daily (interest, ACH, automated distributions, etc) and update totals buckets
d. Indicator must be held of accounts which need to do reporting at end of year of 1st year contributions as 480.7
e. Any other information not stored by the Metavante Deposit system required for Puerto Rican processing of IRA's
2. Customer will be responsible to input account information in the above application to prepare it for live processing post conversion. This information may need to be gathered from a variety of sources including Excel spreadsheets, and historical documents. The information entered must be balanced against the information converted to the Metavante Deposit system.
3. Customer will be responsible to scan all documents to Vision Content (Treev) associated with IRA's, and Loans that the bank wishes to have available to support operations post conversion.
4. Customer will be responsible to build and input all scripts in Spanish into Enterprise Contact Management used for service, sales, and call requests. Metavante will train Customer in the manner to accomplish this authoring.
5. Customer will be responsible to create all forms for deposit new account origination using Liquid Office in both Spanish and English. Metavante will provide consulting assistance to train Customer personnel in this task.
6. Customer is responsible to create all custom forms required for their lending programs. Should Customer wish to license any VMP forms in addition to the standard documents provided by GHR, a contract directly with VMP will be required.
7. Customer must also create the 480.x form in Word (for data merge) that will be fed from Metavante per items a, b, and c below
a. daily extract of new IRA's for generation of form 480.x — fed to Word for notice print
b. daily extract of closed IRA's for generation of form 480.x — fed to Word for notice print
c. end of year extract of new IRA's fed by ACH for generation of form 480.x — fed to Word for notice print
8. Customer will be responsible to create the Word template to receive the file for data merge and notice production of new Investor CD's and IRA's on a specific day of the month.
9. Customer will be responsible to work with Bankware to accept Metavante's standard Asset/Liability feed in order to produce the required reporting.
10. Customer will be responsible to work with Easy Call to accept Metavante's standard Call Report feed in order to produce the required reporting.
11. Customer will be responsible to create the extract from the BIC that will be passed to CRA Wiz. Metavante will provide consulting to assist in the bank understanding how to accomplish this.
12. Customer will be responsible to establish the Excel spreadsheet to accept data from Metavante used in calculating incentive compensation for deposits and loans.
13. Customer will be responsible to work with USBA to accept Metavante's standard Baker Hill One Point feed in order to produce the required reporting. If modifications are required assumes bank will accomplish this through a 3rd party provider and an ETL tool or by creating a special extract using the BIC.
14. Customer to provide resources to identify language requirements for:
a. bilingual versions of all deposit/loan statements, bills, collection letter, and notices
b. bilingual retirement statements
c. bilingual safebox notices
d. bilingual retirement notices
15. Customer will be responsible to assist in testing, and provide required Symposium resources to assist with Metavante questions to develop a CTI interface for the following:
a. real-time TAPI interface for screen pop to ECM
b. ECM scripting to Symposium soft-phone for outbound calling
16. Customer will fund S1 development for integration and setup as follows:
a. S1 setup required to utilize Metavante EII for presentation of e-statements and calling of check images
b. S1 setup required to change over and test integration to Metavante through Connectware V6
c. S1 setup required to receive batch BAI2 files from Metavante Deposits and Loans for prior day balances and activity (consulting with Metavante and version upgrade)
17. Customer will be responsible to contract with Peoplesoft to accommodate any changes necessary to accept Metavante's standard daily general ledger interface file.
18. Customer will be responsible to either 1) certify their existing receipt printers for tellers meet Metavante specifications or 2) acquire printers that meet Metavante specifications.
19. Customer will be responsible to provide data files in an acceptable format (flat files with associated copy books, each record containing appropriate key fields, e.g. account number) of all applications to be converted to Metavante from the appropriate source applications, e.g. Bankway, Onbase, CRM, and any others. If field data required for Metavante conversions is not available in the
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files provided by Customer, and appropriate default values cannot be determined, Customer will be responsible to enter the required data, or provide complementary data files of the missing information.
20. File transmissions to/from 3rd party entities will come by way of the PC Barr located at Customer's location, and will traverse the backbone between Metavante and Customer. Typically files sent from Metavante to a 3rd party, or from a 3rd party to Metavante will contain JCL that will be recognized by the PC Barr for automatic routing. However, if the 3rd party requires the use of special software for the transmission of the files, e.g. NDM, additional costs may be incurred by Customer f or Metavante to setup, test, certify, and perform the transmission(s) in a different fashion.
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CONVERSION TRAINING AND EDUCATION
*The information in this schedule, which consists of three pages, is intentionally omitted because confidential treatment has been requested pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. The omitted information has been filed separately with the U.S. Securities and Exchange Commission.
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SERVICES AND CHARGES SCHEDULE
*The information in this schedule, which consists of eight pages, is intentionally omitted because confidential treatment has been requested pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. The omitted information has been filed separately with the U.S. Securities and Exchange Commission.
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PLANNED ENHANCEMENT AND INTERFACE SCHEDULE
*The information in this schedule, which consists of seven pages, is intentionally omitted because confidential treatment has been requested pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. The omitted information has been filed separately with the U.S. Securities and Exchange Commission.
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SERVICE LEVEL SCHEDULE
1. GENERAL PROVISIONS
1.1 Introduction. This Service Level Schedule identifies Service Levels for the Services obtained by Customer from Metavante. These Service Levels are set forth below.
1.2 Definitions. In addition to the terms defined in Section 18 in the Agreement, the following terms have the following meanings and shall be equally applicable to the singular and plural forms:
A. "ACH Services" shall mean Services whereby Metavante: initiates and/or receives automated clearing house debit and credit entries, and adjustments to debit entries and credit entries to accounts of End Users; and § credits and/or debits the same to such accounts.
B. "Availability" shall mean that the Service associated with the applicable Service Level is available to Customer and End Users, as applicable, as contemplated by this Agreement and is functioning normally in all other material respects as defined in each description of each Service Level set forth in this Service Level Schedule.
C. "Business Case Assessment" shall have the meaning set forth in Section 2 of Attachment A to this Service Level Schedule.
D. "Business Day" shall mean each Monday through Friday except holidays recognized by the Federal Reserve Bank of New York.
E. "Business Intelligence Center" or "BIC" shall mean the information support system implemented by Metavante to access key business information contained in the Data Warehouse. The tools included in the BIC offering are designed to support both casual and power Customer users. The Software for the so-called client portion of the BIC offering (which includes Data Warehouse-related Software and report writing Software) will reside on equipment located at Customer facilities; all other elements of the Software for the BIC offering will reside at Metavante facilities. BIC may be operated by Customer's or Metavante's personnel.
F. "Card Management System" or "CMS" is a tool accessible by Customer that provides online inquiry and maintenance, card issuance, transaction authorization and customer account management for debit, prepaid debit and ATM card programs.
G. "CIS" means Customer Information System.
H. "Core System" shall mean the following elements of the Metavante System: the so-called Deposit System, the so-called Loan System and CIS.
I. "Critical Operations Reports" shall mean each of the following reports: Loan System (R6000-R7530) and Deposit System (R1000-2640 and R2669-R4998), and all enhancements and replacements therefor.
J. "Demarcation" shall mean the measure from the router into the host, the round trip into the host, then back into the router.
K. "Data Warehouse" shall mean Metavante's data warehouse commonly known as "Business Intelligence Center" (which includes the tool commonly known as "Business Objects"), and any permitted successors and replacements therefor.
L. "Lending Solutions" shall mean the following elements of the Metavante System: the so-called GHR Wholesale Web Site, the so-called GHR Consumer Lending Solution and the so-called GHR Mortgage Lending Solution.
M. "EFD" shall mean electronic funds delivery.
N. "Operations Center" shall mean the data center from which Metavante provides the Services.
O. "Processing Day" shall mean any Monday through Saturday except holidays recognized by the Federal Reserve Bank of New York, other than the following holidays which shall each be deemed to be a Processing Day: Martin Luther King Day, President's Day, Columbus Day and Veterans Day.
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P. "Scheduled Downtime" shall mean any period of non-Availability due to scheduled maintenance as set forth in each description of each Service Level set forth in this Service Level Schedule and other maintenance periods agreed to in writing in advance by the parties.
Q. "Scheduled Hours of Availability" shall mean the period of time during which Availability is measured for a given Service Level as set forth in each applicable description of each Service Level set forth in this Service Level Schedule.
R. "Service Level Change" shall have the meaning set forth in Section 2 of Attachment A to this Service Level Schedule.
S. "Service Level Credit" shall have the meaning set forth in Section 1.4 A of this Service Level Schedule.
T. "Service Level Credit Event" shall have the meaning set forth in Section 1.5 of this Service Level Schedule.
U. "Service Level Failure" shall have the meaning set forth in Section 1.4D of this Service Level Schedule.
V. "Service Level Monthly Cap" shall have the meaning set forth in Section 1.4B of this Service Level Schedule.
W. "SLA Team" shall have the meaning set forth in Section 3A of Attachment A to this Service Level Schedule.
X. "Tandem/BASE24" shall mean the application responsible for receiving transaction authorization data from POS, ATM devices and EFT associations. The transaction authorization data is then delivered to host applications for authorization decisions via external associations or directly to the Card Management System.
1.3 Reporting On Service Levels.
A. Except as otherwise expressly provided in this Service Level Schedule, all Service Levels shall be measured consistently on a calendar month basis. No later than thirty (30) days following the end of each month, Metavante shall provide Customer with a monthly performance report for the Services, which report shall include its performance with respect to each of the Service Levels, including: a. Metavante's performance against, and calculations with respect to, each Service Level during the preceding month and prior months; and b. Service Level Failures occurring during the preceding month. Such measurement, monitoring and reporting shall permit Customer to verify compliance with the Service Levels.
B. Metavante shall promptly investigate, assemble and preserve pertinent information with respect to, report on the causes of and correct all performance related failures associated with, Service Levels, including performing and taking appropriate preventive measures to prevent recurrence. In addition, Metavante shall provide Customer with communications as soon as reasonably practicable with respect to issues that impact or could reasonably be expected to impact Customer. Metavante shall use commercially reasonable efforts to minimize recurrences of such failures for which it is responsible. Customer shall use reasonable efforts to correct and minimize the recurrence of problems for which Customer is responsible and that prevent Metavante from meeting the Service Levels. Metavante shall use commercially reasonable efforts to resolve all problems and requests within the scope of Services notwithstanding whether any Service Level has or has not been met, and shall notify Customer promptly of any such unresolved issues known to it.
C. Metavante shall maintain reasonable supporting information for each monthly performance report for at least fifteen (15) months and shall, at Customer's request, make such information available to Customer.
D. Metavante shall notify Customer promptly in such form and format as the parties mutually agree if Customer becomes entitled to a Service Level Credit. The notice shall specify each Service Level Credit Event and each associated Service Level Failure and the amount of the Service Level Credit that Customer is entitled to receive.
1.4 Service Level Credits.
A. A "Service Level Credit" shall mean a percentage credit based on the invoice to be submitted by Metavante to Customer with respect to the Services provided in the month in which a Service Level Failure occurs based on Metavante's performance relative to the Service Levels. A Service Level Credit is a reduction in price to reflect the reduced value of the Services and is not liquidated damages for Metavante's failure to meet any Service Level. However, a Service Level Credit shall be an exclusive remedy with respect to a Service Level Failure and shall be in lieu of other contractual remedies except as provided for in Section 8 of this Agreement. Metavante shall apply Service Level Credits to Customer's invoice in the month following the event giving rise to the Service Level Credit. If no additional invoices are to
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be issued by Metavante, Metavante shall pay Customer the amount of the Service Level Credit in immediately available funds.
B. Service Level Credits applied during any month shall not exceed twenty percent (20%) of the applicable monthly invoice prior to the application of any credits (the "Service Level Monthly Cap").
C. Service Level Credits payable by Metavante to Customer during any calendar year shall not exceed one hundred percent (100%) of the average monthly fees payable by Customer to Metavante during the previous calendar year prior to the application of any credits.
D. Service Level Failure. A "Service Level Failure" occurs whenever Metavante fails to meet a Service Level. Metavante shall be excused for a Service Level Failure to the extent the Service Level Failure is attributable to:
(i) an event to the extent excused under Section 17.11 of the Agreement, or
(ii) acts or omissions of Customer.
1.5 Service Level Credit Event. A "Service Level Credit Event" occurs when a Service Level Failure occurs or a series of Service Level Failures occur to the extent specified in this Service Level Schedule.
1.6 Effective Date of Applicability. Service Levels set forth in this Service Level Schedule shall be applicable the month following the month in which the Commencement Date occurs.
1.7 Time Periods. Except as otherwise specified, all references to days are to calendar days and all references to hours/minutes are to hours/minutes during a calendar day. All references to times are to Atlantic time; all references to months and quarters are to calendar months and calendar quarters, respectively, unless otherwise specified; all references to weeks are to calendar weeks, with the first day of each week being Sunday. For clarification purposes only, it is understood that currently Atlantic time is one hour ahead of Central time during those periods in which day light savings time is observed and two hours ahead of Central time during non-daylight saving time periods.
1.8 Periodic Review.
A. Periodic Review. Upon either party's request from time to time, the parties may periodically review the performance categories, metrics and Service Levels and modify, add or delete them in accordance with the change process set forth in Attachment A to this Service Level Schedule.
B. Service Level Review. From time to time, the parties shall meet to discuss performance with respect to, and matters relating to, the Service Levels.
2. SERVICE LEVELS
2.1 Core System Service Level.
A. The "Core System Service Level" means that each of the Core Systems shall have ninety-nine percent (99%) Availability. "Availability" means the ability of Customer to access each of the Core Systems and perform transactions necessary to complete the function within each of such Core Systems with up to date information during the Scheduled Hours of Availability. The Scheduled Hours of Availability for the Core System Service Level shall be 7:00 a.m. to 10:00 p.m. each Processing Day. No Schedule Downtime shall exist unless otherwise agreed in writing between the parties. Metavante's obligation under this Service Level is subject to Customer meeting its 11:00 p.m. input data commitment. However, up to 1:00 a.m., Metavante commits to the 7:00 a.m. online availability from the time Metavante receives Customer input data.
B. A Service Level Credit Event for the Core System Service Level shall occur if Availability is ninety six and one-half percent (96.5%) or less three times in any consecutive six month period. The Service Level Credit shall be six percent (6%).
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2.2 Lending Solutions Service Level.
A. The "Lending Solutions Service Level " means that each of the Lending Solutions shall have availability via the Internet of 98% as measured on a 30 day running average. "Availability" means the ability of the Customer to access each of the Lending Solutions and perform transactions necessary to complete the function within each of the Lending Solutions with up to date information during the Scheduled Hours of Availability. The Scheduled Hours of Availability for the Lending Solutions Service Level shall be from 7:00 AM to 10:00 PM each Processing Day. However, (a) once per calendar quarter, the Lending Solutions may be unavailable for up to six (6) hours for maintenance or network upgrading form 1:01 a.m. to 7:00 a.m., Monday through Friday, and (b) once per calendar quarter, the Lending Solutions may be unavailable for up to twenty-four (24) hours for maintenance or network upgrading from 1:01 a.m. Sunday to 1:01 a.m. Monday .
B. A Service Level Credit Event for the Lending Solutions Service Level shall occur if Availability is ninety five percent (95%) or less three times in any consecutive six month period. The Service Level Credit shall be six percent (6%).
2.3 Operations Center Availability Service Level.
A. The "Operations Center Availability Service Level" means that communications between Customer's network and the Operations Center shall have ninety-nine and nine-tenths percent (99.9%) Availability. "Availability" means that there are communications between Customer's network and the Operations Center during Scheduled Hours of Availability. The Scheduled Hours of Availability for the Operations Center Availability Service Level shall be twenty four hours a day, seven days per week. Scheduled Downtime for the Operations Center Availability Service Level is: a. Sundays between 2:00 a.m. and 6:00 a.m.; b. other planned outages of up to one (1) hour per month in the aggregate, provided that Metavante shall notify Customer of any such planned outages using Metavante's InfoSource notification system at least twenty four (24) hours prior to the planned outage specifying the duration of the planned outage, it being understood that if such outage exceeds the duration of the planned outage, such outage shall not be deemed to be Scheduled Downtime; c. downtime if Customer elects not to have SNS back-up capabilities; and d. equipment maintenance periods that are mutually agreed upon in writing in advance.
B. A Service Level Credit Event for the Operations Center Availability Service Level shall occur if Availability for a month is ninety six and one-half percent (96.5%) or less three times in any consecutive six month period. The Service Level Credit shall be eight percent (8%).
C. For the avoidance of doubt, the Operations Center Availability Service Level measures network transport and not necessarily Customer's experience. For example, a Customer user may assume the network is the cause of an issue when in fact the actual issue is something other than the wide area network (WAN).
2.4 Business Intelligence Center Service Level.
A. The "Business Intelligence Center Service Level" means that the BIC shall have ninety-eight percent (98%) Availability. "Availability" means that the BIC is accessible for use by Customer to access the Data Warehouse and that the same is functioning normally in all material respects during Scheduled Hours of Availability. The Scheduled Hours of Availability for the Business Intelligence Center Service Level shall be 7:00 a.m. to 6:00 p.m. each Processing Day. Scheduled Downtime for the Business Intelligence Center Service Level is Sundays.
B. A Service Level Credit Event for the Business Intelligence Center Service Level shall occur if Availability for a month is ninety five percent (95%) or less for the Business Intelligence Center Service Level occurs three times in any consecutive six month period. The Service Level Credit shall be four percent (4%).
2.5 Business Intelligence Center Prior Day Data Updates Service Level.
A. The "Business Intelligence Center Prior Day Data Updates Service Level" means that each Processing Day, Metavante shall initiate and complete associated processing with respect to the BIC no later than 7:00 a.m. the following Business Day after Metavante has received all required posting input data, provided that such data is received no later than 11:00 p.m. on the Processing Day.
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B. A Service Level Credit Event for the Business Intelligence Center Processing Service Level shall occur if three or more Service Level Failures occur in any month with respect to the Business Intelligence Center Processing Service Level. The Service Level Credit shall be four percent (4%).
2.6 Batch Report Service Level.
A. The "Batch Report Service Level" means that each Processing Day, Metavante shall initiate batch processing with respect to all batch reports and have such processing completed and all Critical Operations Reports available for Customer to obtain from Metavante's systems within four (4) hours after Customer's submission to Metavante of a so-called end of day command, provided that Metavante has received from Customer all required posting input data no later than 11:00 p.m. on the Processing Day. However, up to 1:00 a.m., Metavante commits to a rolling four (4) hours from the time Metavante receives Customer input data.
B. A Service Level Credit Event for the Daily Batch Report Service Level shall occur if a Service Level Failure occurs with respect to the Daily Batch Report Service such that associated processing is not completed and such reports are not available for Customer to obtain by 10:00 a.m. the following day three or more times in any month with respect to the Daily Batch Report Service Level. In each case, the Service Level Credit shall be four percent (4%).
2.7 Year-End Batch Report Service Level.
A. The "Year-End Batch Report Service Level" means that Metavante shall initiate batch processing with respect to all year-end batch reports and have such processing completed and all such reports available for Customer to obtain from Metavante's systems within fifteen (15) hours after Customer's submission to Metavante of a so-called end of year command, provided that such end of year command is issued no later than 1:00 a.m. the day following the last Processing Day of the applicable year.
B. A Service Level Credit Event for the Year-End Batch Report Service Level shall occur if Metavante commits a Service Level Failure with respect to the Year-End Batch Report Service Level such that associated processing is not completed and such reports are not available for Customer to obtain by 6:00 a.m. the first Business Day following the submission to Metavante of a so-called end of year command. The Service Level Credit shall be four percent (4%).
2.8 Tandem/Base 24 Electronic Funds Delivery Service Level.
A. The "Tandem Electronic Funds Delivery Service Level" means that Tandem/Base 24 shall have ninety-nine and seven tenths percent (99.7%) Availability. "Availability" means Tandem/Base 24 is available and operational and is functioning normally in all material respects with respect to all functions during Scheduled Hours of Availability. The Scheduled Hours of Availability for the Tandem Electronic Funds Delivery Service Level shall be twenty four hours a day, seven days per week. Scheduled Downtime for the Tandem Electronic Funds Delivery Service Level is Sundays between 2:00 a.m. and 6:00 a.m.
B. A Service Level Credit Event for the Tandem Electronic Funds Delivery Service Level shall occur if Availability for a month is ninety eight percent (98%) or less three times in any consecutive six month period. The Service Level Credit shall be six percent (6%).
2.9 CMS Electronic Funds Delivery Service Level.
A. The "CMS Electronic Funds Delivery Service Level" means that CMS shall have ninety-nine and five tenths percent (99.5%) Availability. "Availability" means CMS is available and operational and is functioning normally in all material respects with respect to all functions during Scheduled Hours of Availability. The Scheduled Hours of Availability for the CMS Electronic Funds Delivery Service Level shall be twenty four hours a day, seven days per week. Scheduled Downtime for the CMS Electronic Funds Delivery Service Level is Sundays between 2:00 a.m. and 6:00 a.m.
B. A Service Level Credit Event for the CMS Electronic Funds Delivery Service Level shall occur if Availability for a month is ninety eight percent (98%) or less three times in any consecutive six month period. The Service Level Credit shall be six percent (6%).
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2.10 EFD Reports Service Level.
A. The "EFD Reports Service Level" means that each day, Metavante shall initiate processing with respect to all daily EFD reports and have all such processing completed and all such reports available for Customer to obtain from Metavante's systems by 3:00 a.m. the following day.
B. A Service Level Credit Event for the EFD Reports Monthly Service Level shall occur if a Service Level Failure occurs with respect to the EFD Reports Service Level such that such reports are not available for Customer to obtain by 3:00 p.m. the following day three times in a month. The Service Level Credit for each such Service Level Failure shall be six percent (6%).
2.11 Teller Transactions Response Time Service Level.
A. The "Teller Transactions Response Time Service Level" means that Metavante shall process so-called teller transactions in an average of 1.5 seconds or less from the time that the transaction is sent by Customer's point of demarcation to the time the processed data is returned to Customer's point of demarcation. The Scheduled Hours of Availability for the Teller Transactions Response Time Service Level shall be 7:00 a.m. to 10:00 p.m. each Processing Day.
B. A Service Level Credit Event for the Teller Transactions Response Time Service Level shall occur if Metavante processes so- called teller transactions in a month in an average of 5 seconds or more from the time that the transaction is sent by Customer's point of demarcation to the time the processed data is returned to Customer's point of demarcation three times in any consecutive six month period. The Service Level Credit shall be six percent (6%).
2.12 CRT Transactions Response Time Service Level.
A. The "CRT Transactions Response Time Service Level" means that Metavante shall process so-called CRT transactions in an average of 2.5 seconds or less from the time that the transaction is sent by Customer's point of demarcation to the time the processed data is returned to Customer's point of demarcation. The Scheduled Hours of Availability for the CRT Transactions Response Time Service Level shall be 7:00 a.m. to 10:00 p.m. each Processing Day.
B. A Service Level Credit Event for the CRT Transactions Response Time Service Level shall occur if Metavante processes so- called CRT transactions in a month in an average of 6 seconds or more from the time that the transaction is sent by Customer's point of demarcation to the time the processed data is returned to Customer's point of demarcation three times in any consecutive six month period. The Service Level Credit shall be six percent (6%).
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ATTACHMENT A
SERVICE LEVEL SCHEDULE
Service Levels may be added or modified through the process set forth in this Attachment A to the Service Level Schedule in order to achieve a fair, accurate, meaningful and consistent measurement of Metavante's performance of the Services.
1. TRIGGER EVENTS. Events or changes that significantly affect Customer's requirements or Metavante's delivery of the Services may trigger a party's desire to delete or modify existing Service Levels or add new Service Levels. Such events and changes include changes in Customer's business, elimination or addition of Services, regulatory requirements, audit requirements, emerging technology, elimination of technology, external benchmarks and annual review processes between the parties.
2. BUSINESS CASE ASSESSMENT. Upon identifying a party's desire to add, delete or modify a Service Level (a "Service Level Change"), the parties shall prepare a written analysis of the Service Level Change (a "Business Case Assessment"), including, as appropriate:
A. Details of the Service Level Change (e.g., measuring tool and methodology, Service Level calculation, exclusions, associated Service Level Credit, projected implementation/effective date);
B. Objective or expected benefit;
C. Implementation difficulty, effort and cost, if any, and responsibility therefor;
D. Cost, if any, and any possibility of mitigation;
E. Risk factors (e.g., operational, regulatory, controls);
F. Degree of change;
G. Nature and extent of impact upon the parties;
H. Combinational impacts (i.e., how one Service Level affects another);
I. System implications; and
J. Issues relating to Applicable Law.
3. SLA TEAM REVIEW.
A. A joint Metavante-Customer team (the "SLA Team") shall review, evaluate and potentially modify the Service Level Changes and associated Business Case Assessments.
B. At a minimum, the SLA Team shall consist of personnel designated by the parties as necessary for an effective review of the Business Case Assessments. The SLA Team shall operate and make decisions by consensus among the parties' representatives, but approval of proposed Service Level Changes shall not be unreasonably withheld or delayed. With respect to each Service Level Change, the SLA Team shall elect one of three results:
I. terminate consideration of the Service Level Change without further review;
II. remand the associated Business Case Assessment to the parties for reconsideration based upon SLA Team's comments; or
III. approve the Service Level Change for submission for signoff.
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4. SIGNOFFS. Before being delivered to Metavante for implementation, the Service Level Change must be reviewed for signoff by Customer and Metavante. If the Service Level Change fails to obtain a required signoff, the SLA Team shall decide whether it should be discarded or refined and resubmitted for signoff. Signoff shall not be unreasonably withheld, delayed or conditioned. Upon sign-off, the parties shall amend in writing the Service Level Schedule accordingly.
5. IMPLEMENTATION. Metavante shall develop a detailed project plan for implementation of each approved Service Level Change. Each plan shall be subject to Customer approval, which approval shall not be unreasonably withheld, delayed or conditioned, and shall include:
A. a project schedule;
B. required updates to this schedule and other affected policies, procedures and standards;
C. a communication plan; and
D. required changes to systems, reporting schedules, training and processes.
© 2006, Metavante Corporation
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TERMINATION FEE SCHEDULE
1. Termination for Convenience. Except as set forth in paragraph 3 of this Schedule, if Customer elects to terminate this Agreement or any Service for any reason, Customer shall pay Metavante the termination fee computed in accordance with Section 8.4 of this Agreement.
2. Termination for Cause by Metavante. If Metavante terminates this Agreement in accordance with Sections 8.2 or 8.3 of the Agreement, then Customer shall pay Metavante the termination fee computed in accordance with Section 8.4 of this Agreement.
3. Termination Fee. Shall be determined as set forth in Section 8.4 of the Agreement.
4. Rebate of Termination Fee. Subject to Metavante' rights under Section 6 below, Customer shall receive a rebate of a portion of any Termination Fee paid by Customer hereunder in the event that Customer shall enter into a new exclusive agreement with Metavante to receive the Initial Services within six (6) months following the Effective Date of Termination. Such rebate shall be determined according to the following schedule: Number of Months Following Termination Rebate 1 100% 2 5/6 3 4/6 4 3/6 5 2/6 6 1/6
5. Payment of Rebate. The applicable rebate of the Termination Fee shall become payable to Customer upon execution of a new exclusive agreement for Initial Services by and between Customer and Metavante within six (6) months following the Effective Date of Termination (the "New Agreement"). The terms of such New Agreement shall be as mutually agreed by the parties and nothing herein shall obligate Metavante or Customer to accept any terms or conditions, whether or not previously acceptable to either of them. The rebate may be paid to Customer by Metavante, in its sole discretion, in the form of a discount to fees payable by Customer under the New Agreement or as a credit against implementation, conversion, training, or professional services fees payable by Customer, or in such other manner as Metavante shall decide.
6. Revocation. Customer's right to receive the rebate of the Termination Fee as provided under Section 5 of this Schedule may not be cancelled or revoked except by a written instrument that is (a) signed by Metavante expressly revoking Customer's right to receive such rebate; and (b) delivered to Customer by Metavante within thirty (30) days following the date of termination of this Agreement.
© 2006, Metavante Corporation
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MasterCard® SecureCode™ Service Participation Schedule
The Undersigned ("Customer") and Metavante Corporation have executed a Services Agreement pursuant to which Metavante has agreed to perform certain services in support of Customer's participation in the card program of MasterCard International Inc. (the "Services Agreement"). Effective November 1, 2004, MasterCard International Inc. has established the MasterCard® SecureCode™ Program (the "SecureCode Program") which establishes a protocol for authenticating cardholders in online transactions. Participation in the SecureCode Program is mandatory for Acquirers and Issuers. By signing below, Customer requests to participate in the SecureCode Program as an Issuer.
For good and valuable consideration, receipt of which is hereby acknowledged, Customer agrees as follows:
1. Customer authorizes and directs Metavante to enroll Customer in the SecureCode Program as an Issuer. As Customer's third party processor for MasterCard transactions, Metavante will provide services as described in Exhibit A for Customer in support of its participation in the SecureCode Program in accordance with the terms and subject to all terms, limitations, and conditions of the Services Agreement, but Metavante has no responsibility or obligation for the SecureCode Program itself. Customer acknowledges and agrees that this is Metavante's sole responsibility in connection with the SecureCode Program and that Metavante will have no other obligation or liability to Customer related to the Program.
2. Customer will pay the additional fees to Metavante as described in Exhibit A hereto and any and all fees assessed by MasterCard in connection with the SecureCode Program.
3. Customer will be responsible for all obligations imposed by MasterCard upon Issuers participating in the SecureCode Service. In particular, and without limitation, Customer will be responsible for fraudulent transactions when the cardholder's identity is authenticated through a password that the cardholder provides when making an online purchase under the SecureCode Program. Customer will be responsible for contracting with its cardholders to provide the service to them, and for establishing terms of its cardholders' use of the service in accordance with MasterCard's operating regulations. Metavante may provide Customer with samples of cardholder terms for the program that have been provided to Metavante by MasterCard or other third parties, but Customer acknowledges and agrees that these forms are provided by Metavante "AS IS" and without warranty or representation of any kind.
4. Customer agrees to indemnify, defend, and hold Metavante harmless from any and all loss, liability, claims, costs, and expenses relating to Customer's participation in the SecureCode Program as an Issuer.
By signing below, Customer agrees to the foregoing and indicates its desire to participate in the SecureCode Program as an Issuer.
Oriental Financial Group Inc.
(Customer) By:
Date:
© 2006, Metavante Corporation
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Exhibit A Services & Fees
The following costs apply to credit and debit card programs using MasterCard® SecureCode™.
One-time Fees Set-up fee: $800 per scheduled implementation. One charge for both credit and debit card programs, if SecureCode is implemented for both programs at the same time and both programs are at Metavante. Additionally, all card programs must use the same implementation model. Each implementation model is considered a separate setup and is billed accordingly.
HTML Conversion fee: $50 per document if Metavante converts to HTML for clients. This applies to items required for the SecureCode Web site, which can include the Terms of Service and Privacy Policy information.
Change requests: $275 for each individual request. Multiple items submitted on the same request form are billed at $275 for the first item and $55 for each subsequent item. This is in reference to changes requested by the client for their SecureCode Web site.
Ongoing Monthly Expenses
Monthly Web site Hosting Fee: $38 per month, per financial institution One charge for both credit and debit card programs, if both card programs use the same Web site and both process with Metavante.
User fee: $0.075 per card, per month The fee applies to cards that are enrolled or active on the SecureCode platform.
Authentication fee: $0.01 per SecureCode authentication attempt
Cardholder support pricing for after hours: $35 per month (optional, applies to debit card and prepaid debit card programs only)
MasterCard Expenses MasterCard charges a fee for annual directory and program support associated with the MasterCard SecureCode program. This fee is charged only to principal members of MasterCard; it does not apply to clients with programs in ICA 5484 (debit) or 1166 (credit). Effective January 1, 2005, the fee is $1,500 per year for clients with fewer than 50,000 combined MasterCard credit and debit cards. For clients with 50,000 or more cards, the fee is $3,000 per year.
There may be additional expenses required by MasterCard that have not been determined. For complete information about charges from MasterCard for the SecureCode program, see the MasterCard International operating regulations.
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Question:
Highlight the parts (if any) of this contract related to "Post-Termination Services" that should be reviewed by a lawyer. Details: Is a party subject to obligations after the termination or expiration of a contract, including any post-termination transition, payment, transfer of IP, wind-down, last-buy, or similar commitments? | To the extent any insurance coverage required under this Section is purchased on a "claims-made" basis, such insurance shall cover all prior acts of Metavante during the Term, and such insurance shall be continuously maintained until at least four (4) years beyond the expiration or termination of the Term, or Metavante shall purchase "tail" coverage, effective upon termination of any such policy or upon termination or expiration of the Term, to provide coverage for at least four (4) years from the occurrence of either such event. | Given the context, answer the question that follows |
Withholding of all applicable taxes are your responsibility. | withholdings | Given the provision, provide with the correct label for the given provision |
This Agreement may be executed in two counterpart copies of the entire document or of signature pages to the document, each of which may be executed by one of the parties hereto, but all of which, when taken together, shall constitute a single agreement binding upon both of the parties hereto. | counterparts | Given the provision, provide with the correct label for the given provision |
The annual compensation may be adjusted upward (but not downward) in the sole discretion of the Board of Directors. | annual base salary | Given the provision, provide with the correct label for the given provision |
The parties agree that such late charge represents a fair and reasonable estimate of the costs that Landlord will incur by reason of any late payment as hereinabove referred to by Tenant, and the payment of late charges and interest are distinct and separate in that the payment of interest is to compensate Landlord for the use of Landlord’s money by Tenant, while the payment of late charges is to compensate Landlord for Landlord’s processing, administrative and other costs incurred by Landlord as a result of Tenant’s delinquent payments. | late charges | Given the provision, provide with the correct label for the given provision |
This Assignment may be executed in counterparts, and when together, such executed original counterparts shall constitute but one original hereof. | counterparts | Given the provision, provide with the correct label for the given provision |
All of the Loan Documents, certificates, legal opinions and other documents and papers referred to in this Article, unless otherwise specified, shall be delivered to the Administrative Agent for the account of each of the Lenders and in sufficient counterparts or copies for each of the Lenders and shall be in form and substance reasonably satisfactory in all respects to the Administrative Agent. | delivery of documents | Given the provision, provide with the correct label for the given provision |
This Subordination Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed in such state. | governing laws | Given the provision, provide with the correct label for the given provision |