Edify Software License And Services Agreement

EXHIBIT 10.11

Confidential portions have been redacted pursuant to the rules
and regulations of the Securities and Exchange Commission


EDIFY SOFTWARE LICENSE AND SERVICES AGREEMENT


This Software License and Services Agreement (this "Agreement") is entered into and made effective as of September 26, 1997 (the "Effective Date"), by and between Edify Corporation, with corporate offices at 2840 San Tomas Expressway, Santa Clara, CA 95051 ("Edify") and Atlanta Internet Bank, with corporate offices at 7000 Peachtree-Dunwoody Road, Building 10, Suite 300 Atlanta, GA 30328 ("Customer").


1. DEFINITIONS.


1.1 "Intellectual Property Rights" means patent rights (including patent applications and disclosures), copyrights, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.


1.2 "Order Schedule" means the document by which Customer orders Products licenses and Services. Customer may acquire either Products licenses or Services separately.


1.3 "Products" means Edify's software development tools and application products ("Application Products") in object code form and related documentation specified in an Order Schedule issued pursuant to this Agreement, including any error corrections and updates thereto provided by Edify to Customer under this Agreement.


1.4 "Services" means the maintenance and support services, consulting services, installation services, and/or training services specified in an Order Schedule issued pursuant to this Agreement.


2. LICENSE.


2.1 Grant of License. Subject to the terms and conditions of this Agreement, Edify grants to Customer, and to Customer's agents, independent contractors and government officials solely for the benefit of Customer, a nonexclusive, nontransferable, perpetual license to use each of the Products specified in an accepted Order Schedule on a single CPU, only for Customer's internal use, and with respect to Customer's customers Edify grants the right to access the on-line banking services provided by Customer using the Products.


2.2 License Restrictions. Customer has no right to transfer, sublicense or otherwise distribute the Products to any third party. Customer may not: (a) modify, disassemble, decompile or reverse engineer the object code of the Products nor permit any third party to do so; (b) copy the Products, except for a reasonable number of backup copies; or (c) use the Products in any manner to provide service bureau, timesharing or other computer services to third parties. Edify acknowledges that Customer will be using the Products to provide on-line banking services to third parties and that such use is not a violation of 2.2(c).


2.3 Third-Party License Restrictions. If Customer purchases a Product license for Edify's Visa ADMS Application Product (the "Visa Module"), then Customer may use the Visa Module solely for the purpose of obtaining electronic banking and financial services from Visa Interactive, Inc. through the communication access services and systems that Visa Interactive, Inc. operates.


2.4 Development Kit Restrictions. If Customer purchases a Product license for any Edify development kit ("Development Kit"), then Customer may use the Development Kit for application development only and Customer expressly agrees not to use the Development Kit or any component thereof in a production application. In addition, Customer's use of the Development Kit is limited to a maximum of three (3) Edify Software Agent Products.


2.5 Limited Rights. Customer's rights in the Products will be limited to those expressly granted in this Section 2. Edify reserves all rights and licenses in and to the Products not expressly granted to Customer under this Agreement.


3. OWNERSHIP.


Edify and its licensors presently own and will continue to own all worldwide right, title, and interest in and to the Products and all worldwide Intellectual Property Rights therein, whether or not the Products are incorporated in or combined with any other product. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices of Edify and its licensors appearing on the Products as delivered to Customer. Customer will reproduce such notices on all copies it makes of the Products.


4. SERVICES.


4.1 Maintenance and Support Services. Edify will perform the maintenance and support services specified in an accepted Order Schedule in accordance with Edify's standard Software Maintenance Program, which Edify publishes from time to time. Edify may modify its Software Maintenance Program upon written notice to Customer, provided, however, that in no event may Edify make any modifications to its Software Maintenance Program that would materially reduce the level of maintenance and support services that Edify provides to Customer hereunder during the then current term for which Customer has paid maintenance and support fees. Edify will be obligated to provide maintenance and support services only for Products installed at the Customer sites designated in an accepted Order Schedule. Edify acknowledges that Customer will install the Products at Bisys in Houston, Texas, as more specifically identified in the Order Schedule, to be used solely for the benefit of Customer, with remote access by Customer from its site in Atlanta, Georgia. The Product known as Electronic Workforce will be available on Windows NT before the end of 1997, and will be provided, free of charge, to Customer as an upgrade to the applicable Products licensed, provided that Customer has a current maintenance agreement for such Products, notwithstanding any terms to the contrary in the Software Maintenance Program. In the event of Customer enters disaster mode, Edify agrees to use the most expedient efforts possible to provide Edify resources (including contractors) on site to assist Customer, at Customer's expense.


4.2 Term of Maintenance and Support Services. Edify will provide maintenance and support services for each Product specified in an accepted Order Schedule for an initial period of fifteen (15) months from the date of receipt by Customer of such Product and for additional twelve (12) month periods thereafter, provided that Customer pays Edify's then-current annual maintenance and support service fees in accordance with the terms of Section 6.1. Either party may elect to terminate maintenance and support services for a Product by notifying the other in writing at least ninety (90) days prior to the expiration of such initial fifteen (15) month period or of any twelve (12) month renewal period thereafter. Customer may elect to renew maintenance and support services with respect to some, but not all, of the


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Products or Customer sites. Reinstatement of lapsed maintenance and support services is subject to payment by Customer of Edify's reinstatement fees in effect on the date Customer re-orders maintenance and support services. For obsoleted Products, Edify will provide maintenance and support in accordance with its then current Product Obsolescense Plan.


4.3 Exclusions to Maintenance and Support Services. Edify shall have no obligation of any kind to provide maintenance and support services for problems in the operation or performance of the Products caused by any of the following (each, "Customer-Generated Error"): (a) non-Edify software or hardware products; (b) Customer's failure to properly maintain Customer's site and equipment on which the Products are installed; or (c) alterations to Customer's site or equipment made by Customer or a third party after Edify's completion of installation services pursuant to Section 4.4. Notwithstanding the foregoing sentence, Edify will use commercially reasonable efforts, at Edify's then-current time and materials rate, to assist Customer in trouble-shooting problems in the operation or performance of the Products caused by the situations described in 4.3(a), (b) and (c). If Edify determines that it is necessary to perform maintenance and support services for a problem caused by a Customer-Generated Error, Edify will notify Customer thereof as soon as Edify is aware of such Customer-Generated Error and Edify will have the right to invoice Customer at Edify's then-current published time and materials rates for all such maintenance and support services performed by Edify.


4.4 Installation Services. Edify will perform the installation services specified in an accepted Order Schedule to install the Products on Customer's equipment at Customer's site. Customer will be solely responsible for completing all tasks that are required to prepare Customer's site and equipment for the performance of such services by Edify, including without limitation all items identified on Edify's Site Preparation Checklist, the terms of which are incorporated into this Agreement by reference.


4.5 Other Services. Edify will perform for Customer the consulting services and training services specified in an accepted Order Schedule in accordance with the terms and conditions of this Agreement. In the event that Customer needs to replace the Products with similar products from third parties or has to replace the software Customer uses in connection or combination with the Products, Edify agrees to provide, itself or through certified partners of Edify, commercially reasonable assistance, subject to advance scheduling and available resources, to assist Customer in migrating to the new software. Customer will pay Edify Edify's or its certified partner's (as applicable) then current time and material rates for such assistance.


4.6 Customer Security Procedures. Edify personnel who perform Services at Customer's site will comply with Customer's reasonable security procedures, provided that Customer furnishes Edify with such procedures in writing prior to the date any Edify personnel begin performing such Services.


4.7 Source Code Escrow. For a one-time fee of five hundred dollars ($500), Customer may participate as a Licensee of Record under the Software Deposit Agreement dated September 22, 1993 by and between Edify Corporation and Brambles NSD, Inc. ("Escrow Agreement"). In the event the Product source code is released pursuant to the Escrow Agreement, Edify hereby grants Customer the right and license to use the source code solely for internal support and maintenance purposes of existing Products. Notwithstanding anything to the contrary in this Agreement, Customer agrees that the Product source code for the Products is Confidential Information of Edify and shall be protected perpetually until and unless one or more of the confidentiality exclusions occurs.


5. ORDERING AND DELIVERY.


5.1 Ordering. Customer may submit Order Schedules to Edify for the purchase of Products licenses and Services. Each such Order Schedule must reference this Agreement and must be signed by Customer. No Order Schedule will be deemed accepted by Edify unless and until Edify accepts such


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Order Schedule in writing. Any terms and conditions of any Order Schedule that are inconsistent with or in addition to the terms and conditions of this Agreement will be deemed stricken from such Order Schedule, even if Edify accepts any such Order Schedule.


5.2 Delivery. All Products will be shipped FOB Edify's site. Shipping and handling charges will be invoiced with shipment.


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