PRODUCTS AND SERVICES AGREEMENT

This Products and Services Agreement (the “Agreement”)  between Teraverde and Company (as set forth on the Teraverde Order Form), made  [inserted at time of complimentary period start/purchase] (the “Effective Date”) is for the products and services listed below (the “Products and Services”, as applicable).  Teraverde and Company (collectively, the “Parties” to this Agreement)  intending to be legally bound, agree as follows:

Product Name and Services to be purchased or licensed [inserted at time of complimentary period start/purchase]
LOS System to be used as data source Encompass LOS
Method to access the Data Encompass API or Encompass Data Connect
Initial Term in months Approximately Twelve Months (beginning as of the Effective Date and ending on the final day of the twelfth month after the Effective Date); each Renewal Term (as hereinafter defined) shall be twelve months exactly
Monthly License Fee, payable in advance on the first of each month by credit card, ACH or in a lump sum payment for entire term. [inserted at time of complimentary period start/purchase]
Maximum number of Users [inserted at time of complimentary period start/purchase]
One Time Installation Investment, payable within 3 days of Agreement execution by credit card, ACH or check. None
Product and Service Installation Date Within 5 days of execution of this Agreement and provision of Encompass credentials, receipt of Data Dictionary summary, and installation of Encompass connector.
Other Terms First 30 days are Complimentary (“Complimentary Period”); Installation is Complimentary.  After 30 days, the Monthly License Fee will be collected via credit card on file or billed.  Cancellation notice must be delivered via the Teraverde Cancellation Form and must occur within the first 30 days if you do not wish to proceed with the paid license term above.

Recurring Monthly Payment. The monthly license fee (the “Recurring Monthly Payment”), as set out on the Letter Agreement and noted above, is payable in advance for each partial and full month after the 30- day Complimentary Period expires.  The initial Recurring Monthly Payment is automatically billed the next calendar month (at Complimentary Period expiration) and the full Recurring Monthly Payment is due every 30-days thereafter during the approximate twelve-month initial term (the “Term”).  If applicable, sales tax on the Recurring Monthly Payment  will be billed on the monthly invoice as an additional charge.  Teraverde will remit any sales tax collected to the applicable taxing body.  This Recurring Monthly Payment allows Company to use the purchased or licensed Products and receive certain Teraverde Services, as provided in this Agreement.

In some circumstances, some or all of the Products and Services may be hosted on Microsoft Azure Cloud services, or some other cloud-based service selected by Teraverde, in its sole discretion.  Unless otherwise noted above, at the beginning of the Term the hosting fee for the Teraverde Products for CPU, data transfer and storage (the “Hosting Fee”) is included in the Recurring Monthly Payment and assumes normal usage by Company.  During the Term, if Company’s CPU, data transfer and storage usage exceeds normal limits, in Teraverde’s sole discretion, Teraverde will notify Company in writing of any increase at least fifteen (15) days in advance and such increase will be applied to the Recurring Monthly Payment on a foregoing basis. The Hosting Fee is based upon loan detail and historical data for the pricing tier selected.

Payments.  Neither the failure of Company to review any Teraverde Products and Services on the Installation Date, nor the date of Teraverde’s invoices, shall delay Company from making  the Recurring Monthly Payment in a timely manner.  The Recurring Monthly Payments set forth in the previous paragraph are based upon: (a) one LOS data source being the current Loan Origination System (“LOS”); (b) one Loan Vision Instance if applicable; and (c) the maximum number of users set forth in this Agreement.  Any change in these items may result in Teraverde, in its sole discretion, increasing the Recurring Monthly Payment with fifteen (15) days’ notice.  If applicable, Teraverde will backfill between thirteen (13) and twenty (24) months of loan data as part of the implementation process.

Installation.  Teraverde will provide the necessary files and instruction for Company to install required components to effectively complete the installation of the Products and Services.  Company is required to provide Teraverde information to install required components to effectively complete the installation of the Products and Services no later than five (5) business days after the Effective Date.  Company should review each Product and Service as it is installed, and Company’s failure to do so will not give rise to any legal defense to payment or usage.  As used in this Agreement, the “Installation Date” shall be the earlier of: (a) the date Teraverde notifies Company that installation is complete, or (b) five (5) business days after the Effective Date.

Term and Termination.  The initial Term of this Agreement begins on the Effective Date and ends on the last day of the twelfth full month after the Effective Date of this Agreement (the “Initial Term”).  This Agreement shall automatically renew for successive one year Terms (each, a “Renewal Term”) on the anniversary of the completion of the Initial Term or the Renewal Term, as applicable, unless terminated by written notice from either Party at least sixty (60) days prior the end of the Initial Term or any Renewal Term.  The Initial Term and each successive Renewal Term constitute the “Term” under this Agreement. In addition to any adjustments provided herein during any Term, Teraverde also may increase the amount of the Monthly Recurring Payment by written notice at least seventy-five (75) days prior to the commencement of any successive Renewal Term.  The Company may terminate this Agreement at least sixty (60) days prior to the end of the Term if it does not accept the increased price associated with renewal.

Access Rights.  Company shall define the Company personnel with access to Products and Services through Company’s active directory (each, an “End User” subject to the End User License Agreement that follows), commonly known as Single Sign-On (“SSO”); must install a connector application which reads the Company active directory for Products and Services and which is available through Teraverde without charge for the number of users set forth in the Letter Agreement (Teraverde provides installation instructions and support): and must, in accordance with Teraverde’s procedures, determine and inform Teraverde which users have access to which information.  Company shall provide Teraverde with elevated access to Company’s LOS for configuration and installation purposes.

LOS and Setup.  Company has and shall maintain the LOS described on Appendix A during the Term of this Agreement.  Company shall provide Teraverde with all required LOS credentials and other information requested on Appendix A within three business days of the Effective Date.    Company shall promptly provide Teraverde with Company’s LOS system dates, milestones, status and user information, as well as all other reasonably requested information related to this Agreement.

Service Levels. The following are Teraverde service levels for this Agreement.

The system will be available except during routine maintenance hours, service update windows and when emergency updates are required. Routine maintenance and service updates are made outside of normal business hours, Monday through Friday, 8 a.m. Eastern Standard Time to 8 p.m. EST. Teraverde uses reasonable commercial efforts to keep service available, subject to necessary scheduled downtime for maintenance, unscheduled maintenance, and system outages. Teraverde cannot ensure that access will be uninterrupted or available at all times and Company agrees, and understands, that Teraverde assumes no liability or responsibility for any delay, interruption, or downtime, nor does any delay, interruption or downtime give rise to a defense for a failure to pay the Monthly Recurring Payment.

 Support Definitions are as follows:

  1. High: Many users are impacted, and the workaround is very time consuming.
  2. Medium: Some users are impacted, and the workaround is somewhat time consuming.
  3. Low: Few users are impacted, or the workaround is not very time consuming.

Whether a support request is considered high, medium or low will be determined by Teraverde applying commercially reasonable standards.  Support requests must be made using Teraverde’s Support Request and Ticketing System (the “System”). A support request will be considered received only when entered and confirmed by this System. Email, phone call or other methods of contact will not be treated as requests for support, and when determining Support Response Levels and Service levels (defined below). If the support ticket is submitted on Saturday, Sunday or after the 6 pm EST on any given day, the support ticket will be treated as received at 8 am of the next business day.  It is incumbent upon Company to familiarize itself with Teraverde’s System and utilize that System to report problems or concerns; Teraverde shall have no liability for failure to respond to a support request made outside of the System.

Support Response Levels are based upon the Support Definitions above.  High: Company will receive a response from Teraverde’s support team within four business hours. A member of Teraverde’s support team will be assigned to actively research the support ticket until the support ticket is resolved or actionable resolution is reached.  Medium: Company will receive a response from the Teraverde’s support team within eight business hours. A member of the Teraverde support team will be assigned to actively research the support ticket during the work week until the support ticket is resolved, or an acceptable actionable resolution is reached. Low: Company will receive a response from the Teraverde’s support team within 36 business hours. A member of Teraverde’s support team will be assigned to actively research the support ticket during normal business hours until the support ticket is resolved, or an acceptable actionable resolution is reached.

Company Responsibilities/Additional Services: Any work outside the scope set forth on in this Agreement, such as conforming the Products and Services to unusual or non-standard LOS changes or updates, customized data mapping, additional data handling functions, financial, accounting, reconciliation or balancing work are responsibility of Company. The scope does not include technical troubleshooting for network connectivity or database installation, creation, or modification of Products and Services within the Company environment(s). Any requested changes that may cause additional scope or functional changes to the standard installation are outside the scope and should be memorialized in a formal SOW.

If a Support Request is outside the scope of the Products and Services, Teraverde will so advise the Company and, if approved, offer support on a time and materials basis.

Hosting.  Teraverde will host a portion of the Products and Services on a cloud service provider of its choosing. As Teraverde does not accept borrower personally identifiable information (“PII”), data fields containing PII will not be accessible to the Company through Teraverde Products and Services.

Data Integrity.  Company is responsible for all data integrity issues with respect to any Company data, including but not limited to LOS, General Ledger, LOS Software Development Kit (“SDK”), Application Programming Interface (“API”), Encompass Data Connect or FTP downloads.  Teraverde does not review Company’s data quality as part of Products and Services installations.  Upon Company request, Teraverde is willing and able to provide data quality assistance regarding Company data integrity as Additional Services at an agreed upon cost which shall be memorialized in an SOW signed by both Parties.

License.  The selected Teraverde Products and Services  are provided under a non-exclusive, non-transferable, sub-license consistent with the terms contained in the End User License Agreement (“EULA”) set forth below.

Training/Use.  Teraverde will provide access to video instructional guides no later than the Installation Date to assist Company in training and utilizing the Products and Services.  Teraverde is not responsible for any training on, or use of, the Products and Services by the Company’s employees, affiliates, agents, advisors, contractors, consultants, or other representatives (collectively, “Representatives”), or any errors or problems caused by lack of training of Company Representatives or the failure to properly use the Products or Services.  Teraverde is willing and able to provide additional remote or on-site training beyond the instructional materials upon request by Company under mutually convenient written terms memorialized in an SOW as Additional Services under this Agreement.  The use of the Products and Services is expressly conditioned upon Company and its End Users agreeing to all terms and conditions in the End User Licensing Agreement and Non-Disclosure Agreements that follow.

Updates.  Teraverde appreciates feedback from users of Teraverde Products and Services.  However, all Teraverde updates, changes and/or revisions (“Updates”) are based upon Teraverde’s sole judgment as to the effect on the entire Teraverde user base.  Teraverde may, from time to time, in Teraverde’s sole discretion, make Updates to Teraverde Products and Services based upon changes in LOSs or other modifications.  Updates will be provided free of charge, but implementation, configuration and training are the responsibility of Company.  Company is responsible to promptly install all LOS updates available from Company’s LOS provider.  Teraverde Products and Services may not perform properly if LOS updates are not promptly installed.  Teraverde is not responsible for errors or problems caused by Company’s actions or inactions related to LOS or LOS updates.

Due Date and Interest, Taxes, and Third Party Costs.  Unless otherwise specified, all payments from Company shall be due within fifteen (15) days of the date of Teraverde’s invoice to Company, without offset, or, in the case of the Recurring Monthly Payment, on the first of the month regardless of invoice date.  All payments not made when due by Company shall bear interest at a rate of one and one-half percent (1.5%) per month, compounded monthly.  Except for sales tax collected by Teraverde, Company shall pay any sales tax, tariff, duty, or similar tax (and any related interest and penalties), however designed, imposed as a result of the existence or operation of this Agreement, excluding any income taxes of Teraverde.  Company is responsible for any additional costs that may be incurred from third-parties to perform the work required to complete or support Teraverde Products and Services.

TERAVERDE END USER LICENSE AGREEMENT

Acceptance of this End User License Agreement (“EULA”) is a condition of use by any Company End User (hereinafter, for purposes of this EULA reference to “End User” shall apply collectively to both Company and its individual End Users unless otherwise specified) of the any Teraverde applications or software or related services (collectively the “Products and Services”) that are provided by Teraverde Financial, LLC (“TVF”) and TVMA, Inc. (“Teraverde”), 805 Estelle Drive, Suite 111, Lancaster, Pennsylvania 17601.  Teraverde installs TVF Products which are licensed by Teraverde to End Users under limited license from TVF.   This EULA applies to End Users regardless of whether the End User is accessing the Products and Services during the thirty (30) day complimentary trial period, or at some point during the Term of this Agreement where Company is paying for the Products and Services. This EULA is incorporated by reference throughout the Product and Services Agreement and, if applicable, the Nondisclosure Agreement between Teraverde and Company (the “Non-Disclosure Agreement”).  All business operations, including regulatory compliance, are the responsibility of End User.  

Under the Terms and Conditions of the Agreement and this EULA, TVF grants End User a limited license to use for End User’s internal business purposes the programs, software, manuals, and other information necessary for the Products and Services.  Company is responsible for compliance with these Terms and Conditions for all End Users, and Company is also responsible for only providing access to defined individuals consistent with the terms and conditions of the Product and Services Agreement.  For purposes of the EULA, the Recurring Monthly Payment paid by Company shall be construed as 50% pertaining to the EULA and 50% for professional services and third-party cost recovery.  This provision shall not alter or increase the  Recurring Monthly Payment  set forth in the Products and Services Agreement.  An “End User” is defined by any person or persons that has access to the  Products and Services. TVF has exclusive title to the applications (the “Apps”) associated with the Products.  THIS LICENSE IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS.

End User License Agreement Terms and Conditions

Limitations: The Product and Services are licensed, not sold, to End User for use only under the terms of this limited license and End User has no other rights in the Products and Services.  TVF reserves all rights not expressly granted to End User.  End User shall not attempt to obtain the source code by any means, shall not modify or alter the source code, shall not attempt to reverse engineer and shall not use or transfer the source code.  TVF warrants that the Products and Services do not infringe upon the intellectual property rights of any third party when used for their intended purpose.  The Products may contain software or assemblies of third parties which have been licensed by those third parties to TVF for inclusion in the Products.  The license does not grant End User any rights to or in third party software or assemblies other than as part of the Products and Services. 

Scope of License: The license granted to End User for the Products by TVF is limited to a non-exclusive, non-transferable, non-assignable limited license to use the Products, limited in time and to the number of End User mortgage banking employees specified by Company in the Pricing Agreement.  End User cannot rent, lease, lend, sell, redistribute, or sublicense the Products. End User may not decompile, reverse engineer, disassemble, or attempt to derive the source code of, modify, or create derivative works of the Products, any updates, or any part thereof. Any attempt to do so is a violation of the rights of the TVF and shall be considered a material breach of this EULA.  If End User breaches this restriction, End User may be subject to damages, and any such breach shall be deemed material. The terms of this limited license will govern any upgrades provided by Teraverde that replace and/or supplement the original Products.

Ownership:  TVF or its licensed affiliates retain all ownership and intellectual property rights to the Products and Services, including derivative works thereof, and anything developed and delivered by TVF under this EULA.  For purposes of this EULA, “intellectual property rights” include, but are not limited to, all trade secrets, trademarks, patents, copyrights (federal and state) plus any common law rights associated with or relating to the Products and Services.    

Modification of Terms and Conditions:  The terms and conditions in this EULA are subject to modification and change from time to time at the sole discretion of TVF or Teraverde with or without notice to  Company or individual End Users.  In the event of a material change in the terms and conditions, TVF or Teraverde (as appropriate) will endeavor to provide to Company no less than fifteen (15) days’ advanced notice and an opportunity to accept the change or to terminate use of the Products and Services.  Company is responsible for advising all of its End Users about any change or terminated use of the Products and Services. 

Termination: End User rights under this limited license will terminate automatically without notice from Teraverde if End User fails to comply with any term(s) of this limited license, including but not limited to payment of the Recurring Monthly Payment, license fees and/or maintenance fees, or upon termination of the Trial Period if Company does not purchase the Products and Services. Upon termination of the limited license, End User shall cease all use of the Products and Services, and destroy all copies, full or partial, of the Products and Services. All provisions of the EULA which would customarily survive, including but not limited to ownership, limitations, limitation of liability and governing law/severability shall survive termination, as well as the confidentiality provisions in the Non-Disclosure Agreement. 

NO WARRANTY: END USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE PRODUCTS AND SERVICES IS AT END USER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH END USER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TVF AND TERAVERDE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCTS AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE OR REGULATORY COMPLIANCE. NEITHER TVF NOR TERAVERDE WARRANTS THAT THE FUNCTIONS CONTAINED IN, THE OPERATIONS PERFORMED OR PROVIDED BY THE PRODUCTS OR SERVICES WILL MEET END USER REQUIREMENTS, THAT THE OPERATION OF THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCTS OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TERAVERDE OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.  SHOULD THE PRODUCTS AND/OR SERVICES PROVE DEFECTIVE, END USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO END USER, BUT THESE EXCLUSIONS APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

Limitation of Liability: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL TERAVERDE OR TVF BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO END USER USE OR INABILITY TO USE THE PRODUCTS AND/OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), REGARDLESS OF THE DOCUMENT GIVING RISE TO THE CLAIM (INCLUDING, WITHOUT LIMITATION, THE PRODUCTS AND SERVICES AGREEMENT, THE EULA AND THE NON-DISCLOSURE AGREEMENT) AND EVEN IF TERAVERDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO END USER. NOTWITHSTANDING THE ABOVE, THESE EXCLUSIONS APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.  IN NO EVENT SHALL THE TOTAL LIABILITY OF TERAVERDE OR TVT (IN THE AGGREGATE) TO END USER FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF THE FEES PAID BY COMPANY TO TERAVERDE AND TVT FOR THE PAST CALENDAR YEAR.  THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 

Governing Law/Severability: The laws of the Commonwealth of Pennsylvania, excluding its conflicts of law rules, govern the Products and Services Agreement, this EULA, the End User use of the Products and Services and the Non-Disclosure Agreement between the Parties.  Both Parties submit to the exclusive jurisdiction of the courts of the Commonwealth of Pennsylvania in the County of Lancaster and of the U.S. District Court for the Eastern District of Pennsylvania (collectively, the “Courts”) and agree not to commence any suit, action or proceeding relating thereto except in such Courts, and waive, to the fullest extent permitted by law, the right to move to dismiss or transfer any action brought in such Courts on the basis of any objection to personal jurisdiction, venue or inconvenient forum.  If any provision of this EULA is held to be void or unenforceable, in whole or in part, the other provisions of this EULA shall continue to be valid and the Parties (or any court of competent jurisdiction) shall replace the void or unenforceable provision with one that is valid and enforceable and most nearly approximates their original intentions.   

User ID and Password:  Access to specific areas of the Products and Services are granted through a unique User Identification (“User ID”) and Password.  When an End User accesses the Products and Services, the End User may not share  the User ID and Password with others, may not post it in a place that can be easily found and the End User is solely responsible for maintaining the confidentiality of the User ID and Password.  The End User is responsible for activities that occur when utilizing the User ID and Password within the Products and Services.  If the End User misplaces, loses or otherwise has their User ID or Password compromised, the End User must notify Teraverde immediately. 

Account Suspension:  If Teraverde has reason to believe that an End User does not comply with the EULA, Teraverde reserves the right to modify a User ID or Password, suspend or close an End User Account in its sole discretion.

NON-DISCLOSURE AGREEMENT

Confidentiality: Teraverde agrees that Teraverde shall keep Company’s Confidential Information in strictest confidence and shall not use, disclose, or publish, or assist any third party in using, disclosing, or publishing, any Confidential Information, except as provided in this Non-Disclosure Agreement. “Confidential Information” means any and all information received by Teraverde about the business or finances of the Company or any subsidiary or affiliate, including without limitation all financial statements and other financial data, all personnel data, and all information about products or services, software and other technology, business plans, projections, existing and proposed projects or investments, suppliers, customers, employees, paying correspondents or money transfer or other agents, pricing, purchase and sales records and data, marketing, processes and methodologies and trade secrets, but excluding information that the Company deliberately and voluntarily makes publicly available. Company agrees that it will use best efforts not to provide or allow Teraverde access to “personally-identifiable information” as defined in the Gramm Leach Bliley Act and regulations issued thereunder.

Teraverde shall protect the Confidential Information from unauthorized use or disclosure by using the same degree of care, but no less than a reasonable degree of care, as Teraverde uses to protect its own Confidential Information of like nature. Teraverde will restrict access to Confidential Information to those Representatives who have a need to know for the purposes of this Non-Disclosure Agreement.

Teraverde shall not be liable for use or disclosure of Confidential Information if the Confidential Information is or comes into the public domain through no fault of Teraverde or its Representatives, is known to Teraverde without restriction at the time of disclosure, is used or disclosed with the prior written approval of Company; or is independently developed by personnel of Teraverde without reference to Confidential Information.

Breach of Confidentiality: Should Teraverde become aware of any violation of this Non-Disclosure Agreement, it shall: a) take appropriate actions to address incidents of unauthorized access to such nonpublic customer and consumer financial information and any other confidential and proprietary information of the Company; b) notify Company as soon as possible of any violation; and c) appropriately assist Company to expeditiously implement Company’s response program for such violations.

Confidentiality and Breach of Confidentiality: This Non-Disclosure Agreement of the Parties regarding confidentiality and breach of Confidentiality is binding upon the Parties, their successors and assigns and shall survive the termination of this Agreement for any reason.

Ownership: All Confidential Information, in any form, shall be and remain the sole and exclusive property of the Company. At any time that the Company may request, Teraverde shall deliver, and cause its Representatives to deliver, all Confidential Information to the Company and delete or destroy all Confidential Information in Teraverde’s control, within a commercially reasonable period of time, unless such delivery or destruction is contrary to existing law. Teraverde documents not containing Confidential Information, including but not limited to, internal research memoranda, consultant notes, records of internal communications, drafts of documents and other similar materials, created or used by Teraverde in connection with the Products and Services are the intellectual property of Teraverde, and the Company has no ownership interest or other rights with respect to these materials.

Teraverde grants the Company a permanent, irrevocable, non-transferable, non-assignable, non-exclusive license (above) to use solely for Company’s business any documentation, workflows, design proposals, design and logic of any custom forms, fields, and business rules, and other information that is built to complete or otherwise results from the provision of Teraverde’s Products or Services. Company shall have exclusive title to any modification, improvements, and/or amendments that Company may make to such documentation, workflows, design proposals, design and logic of any custom forms, fields, and business rules, and other information. The source code behind software, programs, or other deliverables (the “Source Code”) will not be provided to Company and Company has no right or interest in such source code, unless specifically transferred by separate written agreement, and Company agrees to sign any documents deemed necessary or advisable by Teraverde to confirm its ownership of the Source Code in deliverables in a commercially reasonable manner at no cost to Teraverde. The Source Code is not, and shall not, be considered a work for hire under statutory or common law.  If a separate written agreement is not executed by the Parties modifying the above,  Company shall not attempt to obtain the source code by any means, shall not modify or alter the source code, and shall not use or transfer the source code.

MISCELLANEOUS TERMS AND CONDITIONS

Reporting and Information: Teraverde will report directly to Company designated project manager. Company shall furnish or cause to be furnished to Teraverde such information as Teraverde reasonably believes appropriate to the execution of the Products and Services.

Termination: If this Agreement is terminated by any party, Company will remain obligated to pay in full for past Services and Teraverde expenses and for any Products for the remainder of the Term, in accordance with the terms of the Products and Services Agreement or any applicable SOW.  Upon termination Teraverde will retain and protect the Company’s data in accordance with Teraverde’s policies unless Company requests otherwise.

Indemnification Obligations: Company and its End Users shall use Teraverde’s licensed software and/or Teraverde IP in the ordinary course of Company’s business and shall not re-sell, sublicense, transfer or otherwise allow any other person access to the same. Should any Teraverde licensed software or Teraverde IP used or furnished by Teraverde in connection with the Product and Services give rise to any patent, copyright, trademark or similar infringement action against the Company by any third parties, and such claim results from an anticipated use of the patent, copyright or trademark, Teraverde agrees to indemnify, defend, reimburse and hold harmless Company, its officers, directors, employees, agents and controlling persons from any and all damages, fees, penalties, costs of defense, attorneys’ fees and liability resulting from any and all disputes arising as a result or consequence of such infringement. Company and its End Users shall not furnish any third parties with documentation or deliverables or Teraverde IP relating to the Products and Services. Should the Company or its End Users furnish any third parties with documentation or deliverables or Teraverde IP relating to the Products and Services, the Company agrees, subject to applicable laws and regulations, to indemnify, defend, reimburse and hold harmless Teraverde, its officers, directors, employees, agents and controlling persons from any and all damages, fees, penalties, costs of defense, attorneys’ fees and liability resulting from any and all disputes arising as a result or consequence of Company’s furnishing of such documentation to third parties or a third parties’ reliance on such documentation. Should either Teraverde or Company violate any state or federal statute protecting consumer or customer information, the violating party shall indemnify, defend, reimburse, and hold harmless the other party, its officers, directors, employees, agents and controlling persons from any and all damages, fees, penalties, costs of defense, attorneys’ fees and liability resulting from any and all disputes arising as a result or consequence of the breach of such confidentiality obligations.

Conflicts: From time-to-time Teraverde will provide advice and consulting Products and Services to other entities in the financial Services industry. Further, affiliates of Teraverde may own interests in, or engage in transactions, with banks and entities in the financial Services industry. Nothing in these Agreements shall be deemed to preclude Teraverde or its affiliates from engaging in such activities without the knowledge or consent of Company; provided, however, that if Teraverde has actual knowledge that Company has a current or pending contract with an entity in which Teraverde or an affiliate of Teraverde has an interest, Teraverde will advise Company that such interest exists. Teraverde will not use or reveal Confidential Information given to Teraverde by Company in such activities. Company acknowledges and agrees that Teraverde may introduce Company to persons with whom Teraverde has an existing relationship.

Teraverde Personnel: Company shall not hire Teraverde personnel involved in providing Products or Services for a period of one year following the termination of the Product and Services Agreement (or any related SOW, whichever is later) unless the Company and Teraverde agree differently in writing. In the event of a hire during this time frame, as liquidated damages and not a penalty Company agrees to pay a placement fee of $150,000 to Teraverde to cover recruiting, training and other replacement costs.

Electronic Communications: Teraverde relies upon electronic communication such as email and cellular telephones and faxes, tools and media (“Electronic Communications”) in day to day business communications. Because of their nature, Electronic Communications may not be as secure as more traditional lines of communications, such as hard-wired telephones and faxes, U.S. Mail, or couriers. In the course of providing Teraverde’s Products and Services to Company, Electronic Communications for all general information, requests, and otherwise are hereby authorized. Company understands that some risk exists that any and all Electronic Communications could be intercepted by an unauthorized third party, and Company accepts that risk and agrees to hold Teraverde harmless.  For matters of particular sensitivity or for information that could be compromising or damaging to Company, Company’s contact person who is working with Teraverde has the authority to consent specifically to the use of Electronic Communications for such matters. Teraverde shall also consider all requests for, or communications of, information from Company by Electronic Communications as specific consent to respond by Electronic Communications.

Independent Contractor; No Fiduciary Duty: Each of the Parties hereto acknowledges and agrees that it is a sophisticated business enterprise and that Teraverde has been retained pursuant to the Products and Services Agreement to act as an advisor solely with respect to the matters set forth in that Agreement. In such capacity, Teraverde shall act as an independent contractor, and any duties of Teraverde arising out of its engagement pursuant to that Agreement shall be contractual in nature and shall be owed solely to Company. Each party disclaims any intention to impose any fiduciary duty on the other.

Amendments: Other than extension of the term or changes in billing rates as provided in the Products and Services Agreement or any related SOW, any amendment, modification, or other change to that Agreement must be in writing and signed by both parties to be enforceable. If any provision of that Agreement is or becomes inconsistent with any applicable present or future law, rule, or regulation, that provision will be deemed rescinded or modified in order to comply with the relevant law, rule or regulation, and any court of competent jurisdiction shall enforce the provision in a manner closest to the intent of the Parties consistent with controlling law. All other provisions of the Product and Services Agreement, the EULA, the Non-Disclosure Agreement, and any SOW shall remain in full force and effect.

ALL OF THE ABOVE TERMS COMPRISE  A BINDING LEGAL AGREEMENT BETWEEN THE COMPANY (AND ITS REPRESENTATIVES, INCLUDING ITS END USERS) AND TERAVERDE.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF THE COMPANY OR ANY LEGAL ENTITY, BY CLICKING BELOW YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS.  BY CLICKING “I ACCEPT” OR BY USING THE PRODUCT YOU ARE AGREEING TO ALL OF THE TERMS AND CONDITIONS STATED HEREIN.  IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “I ACCEPT” AND DO NOT USE THE PRODUCT.