Unisys License

UNISYS


LICENSE AND SERVICE AGREEMENT


AGREEMENT NUMBER 90110417


CUSTOMER NAME & MAILING ADDRESS Bank of Santa Maria 2739 Santa Maria Way Santa Maria, CA 93455


1


Unisys will license Software and provide Software Support and Equipment Maintenance Services, and Customer agrees to accept the Software and Services under the following terms and conditions:


1. DEFINITIONS


1.1 Software means the object code version of computer programs and any related documentation, excluding maintenance diagnostics. Software also means the source code version, where provided by Unisys.


1.2 Products means equipment, Software and documentation, including manuals and education materials.


1.3 Software Processing Unit ("SPU") means equipment which controls and executes Software.


1.4 Services means all forms of maintenance, support and education for Products.


1.5 Proprietary Information means Software, documentation, including manuals, and any other information confidential to Unisys or its licensors.


1. 6 Installation Date means the date Unisys completes installation (as determined by Unisys) or, if equipment or Software is to be installed by Customer, the tenth day following shipment.


2. EFFECTIVE DATE


This Agreement will become effective when signed by duly authorized representatives of both parties and will continue in effect so long as Customer continues to use the equipment at the site where originally installed or until terminated according to its terms.


3. SCHEDULES - ORDERING PROCEDURE


3.1 Unisys will furnish to Customer and Customer will accept and pay for the Products and Services itemized on the following Schedules which, together with the terms on the Schedules, are an integral part of this Agreement.


A. Equipment Maintenance Services


B. Software Licenses and Support Services


C. Systems Services


All references to Software and Services in this Agreement are to the Software and Services listed on the Schedules and on any Supplemental Schedules submitted to and accepted by Unisys pursuant to Section 3.2 and to any Products and Services supplied by Unisys with such listed Products and Services.


3.2 Customer may order additional Software and Services under this Agreement by submitting properly completed Unisys Schedules. All Schedules will refer to this Agreement by number and will be signed by Customer. All education lecture courses must be ordered on a Customer Course Enrollment Application.


3.3 All orders are subject to acceptance by Unisys and the Unisys policies and charges in effect on the date of acceptance will apply. By Acceptance Unisys will be effective when communicated in writing to Customer. The receipt or deposit by Unisys of Customer down payment will not constitute acceptance of an order. Any down payment received from Customer will be returned if the order is not accepted by Unisys.


4. INSTALLATION


4.1 Customer will install all items of equipment with the designation "Y" in the Customer-Installable column, when there is no charge listed in the Installation Charge column of Schedule A. Unisys will install all other items of equipment.


4.2 Customer will install all Software in accordance with specifications provided by Unisys. Unisys will install all items of Software for which a fixed installation charge is indicated on Schedule C.


4.3 Customer may arrange for installation by Unisys of Customer-Installable Products, subject to the then current standard Unisys charges and conditions.


4.4 If additional labor and rigging is required for installation due to Customer's special site requirements, Customer will pay those costs including costs to meet union or local law requirements.


5. PAYMENT


5.1 Charges for Products will be invoiced upon shipment.


2


5.2 Charges for Equipment Maintenance Services and Software Support Services will be invoiced in advance, monthly or annually, or at other periodic intervals indicated in the applicable Schedule following the Installation Date; otherwise, charges will be invoiced after the services are performed.


5.3 Charges for Systems Services will be invoiced after the services are performed.


5.4 All charges must be paid no later than 30 days from invoice date except for Equipment Maintenance Services charges which are due on the commencement date of the services. Unisys may impose a late payment charge equal to the lesser of (a) 1 1/2% per month or (b) the maximum rate allowed by law.


6. TAXES


6.1 Customer will pay any tax Unisys becomes obligated to pay by virtue of this Agreement, exclusive of taxes based on the net income of Unisys.


6.2 All personal property and similar taxes assessed after shipment will be paid by Customer.


7. PRICE PROTECTION


7.1 The charges for Products in any accepted order will remain firm through delivery, unless through no fault of Unisys shipment takes place more than one year after the date of the order. If Unisys notifies Customer that an increase in charges will apply to its order, Customer may terminate the affected part of its order by giving written notice to Unisys within ten days of the date of notification of the increase.


7.2 Equipment Maintenance Services charges will not be increased during the initial one-year term, but may be increased thereafter upon 30 days' prior written notice to Customer.


7.3 Charges for Software Licenses, Software Support Services and Systems Services will not be increased during any one-year term, but may be increased prior to any subsequent term upon 30 days' prior written notice to Customer. If the services are contracted on a month-to-month basis, the charges may be increased at any time following 30 days' notice.


8. CUSTOMER'S OPERATIONAL RESPONSIBILITIES


8.1 Customer acknowledges it had independently determined that the Products and Services ordered under this Agreement meet its requirements.


8.2 Customer has sole responsibility for use of the Products, including operating procedures, audit controls, accuracy and security of input and output data, restart and recovery routines, and other procedures necessary for Customer's intended use of the Products.


8.3 Customer will ensure that its personnel are, at all times, educated and trained in the proper use and operation of the Products and that the Products are used in accordance with applicable Unisys manuals and instructions.


8.4 Customer will maintain back-up data necessary to replace critical Customer data in the event of loss or damage to such data from any cause.


9. PROTECTION OF PROPRIETARY INFORMATION


9.1 Customer will keep in confidence and protect Proprietary Information from disclosure to third parties and restrict its use as provided in this Agreement. Customer acknowledges that unauthorized disclosure of Proprietary Information may cause substantial economic loss to Unisys or its licensors. All materials containing Proprietary Information will be marked with "Proprietary", "Confidential" or in a manner which gives notice of its proprietary nature. Proprietary Information will not be copied, in whole or in part, except when essential for correcting, generating or modifying Proprietary Information for Customer's authorized use. Each copy, including its storage media, will be marked by Customer with all notices which appear on the original.


9.2 Upon termination or cancellation of any license granted under this Agreement, Customer will destroy (and, in writing, certify destruction) or return to Unisys all copies of the Software, the license for which has been so terminated or canceled, and any other related Proprietary Information in Customer's possession (including Proprietary Information incorporated in other software or writings).


9.3 Customer will inform its employees of their obligations under this Section and instruct them so as to insure such obligations are met.


3


9.4 This Section will survive termination or cancellation of this Agreement.


10. LICENSE


10.1 Unisys grants to Customer a personal, non-exclusive and non-transferable license to use Software and related documentation according to the terms and conditions of this Agreement, including Schedule B, solely for Customer's internal data processing requirements on a single Unisys SPU in the United States on which the Software is initially installed. Customer's use of Software will be governed by additional conditions which Unisys may provide on or prior to delivery of Software.


10.2 Customer may modify any Unisys application Software and may combine such with other programs or material to form an updated work, provided that upon discontinuance or termination of the license, the Unisys application Software will be removed from the updated work and returned to Unisys.


10.3 Customer will not decompile or disassemble any Software provided under this Agreement or modify Software which bears a copyright notice of any third party. Customer will make and maintain no more than one archival copy of each item of Software, and each copy will contain all legends and notices and will be subject to the same conditions and restrictions as the original.


10.4 If the SPU on which any item of Software is licensed becomes temporarily unavailable, use of such Software may be temporarily transferred to an alternative system.


10.5 If Customer desires to use Software in a service bureau mode, or at another location, or for more than one SPU, Customer shall request prior permission in writing from Unisys. Unisys will then advise Customer whether, and under what terms and conditions, Unisys will license the Software as requested.


10.6 This Agreement does not transfer to Customer title to any intellectual property contained in any Software, documentation or Proprietary Information.


11. EQUIPMENT MAINTENANCE SERVICES


11.1 Equipment Maintenance Services are the provision of replacement parts (excluding removable media and consumable supplies), parts installation, and field installation of necessary engineering changes to maintain equipment in good working order.


11.2 To enable Unisys properly to provide Equipment Maintenance Services, Customer will (a) maintain the operating environment in accordance with Unisys specifications, (b) provide adequate working and storage space for use by Unisys personnel near the equipment, (c) provide Unisys full access to the equipment, subject only to Customer's security rules, (d) follow Unisys procedures for determining if remedial service is required, and (e) follow Unisys instructions for obtaining off-site maintenance, if applicable.


11.3 Equipment parts which are removed for replacement by Unisys becomes the property of Unisys.


11.4 Customer acknowledges that maintenance support materials for equipment and Software located at Customer's facility, including, without limitation, diagnostic software, are the property of and include Proprietary Information of Unisys. Customer assures that such materials will be used only by Unisys maintenance personnel, and that Unisys has the right to remove such materials from Customer's facility at any time.


11.5 To determine eligibility and prerequisites for Equipment Maintenance Services, Unisys may require inspection, at Customer expense, of equipment which (a) has not been maintained continuously by Unisys from the date of purchase by Customer or (b) has been relocated.


11.6 All system components and peripherals which are located at the same site and interconnected with Unisys signal and power cables or their equivalent and which are subject to Equipment Maintenance Services hereunder are required to be subject to the same designated remedial maintenance hours, as identified in the maintenance services schedule.


12. SOFTWARE SUPPORT SERVICES


12.1 Unisys offers Software Support Services for all Software warranted by Unisys, and for some unwarranted Software.


12.2 When Unisys issues a revision level for an item of Software, it will continue to support the previous level for a period of not less than six months.


4


12.3 Unisys may eliminate Software Support Services or change the levels of support available for an item of Software upon six months' written notice or at the expiration of the then current term for Software Support Services, whichever occurs earlier.


13. SYSTEMS SERVICES


13.1 Unisys will endeavor to provide Systems Services on a timely basis subject to availability of qualified personnel and the difficulty and scope of the services to be provided.


13.2 Unisys may assign, reassign and substitute personnel at any time and may provide the same or similar services and materials to other customers.


13.3 Systems Services supplied by Unisys under this Agreement are provided to assist Customer. Customer, not Unisys, will be responsible for determining objectives and obtaining the desired results.


13.4 Any ideas, concepts, know-how or data-processing techniques, Software or documentation developed by Unisys personnel (alone or jointly with Customer) in connection with Systems Services provided to Customer will be the exclusive property of Unisys. Unisys grants to Customer a non-exclusive, royalty-free license to use the Software in accordance with the terms of this Agreement.


14. WARRANTIES AND DISCLAIMERS


14.1 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. UNISYS DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS TO BOTH UNISYS AND NON-UNISYS PRODUCTS. UNISYS WARRANTIES EXTEND SOLELY TO CUSTOMER.


14.2 Maintenance Warranty and Disclaimers


Unisys warrants that the equipment will be maintained in good working order provided that it is continuously subject to Unisys Equipment Maintenance Services and under normal use. Unisys sole and exclusive obligations under this warranty will be to repair such equipment. Maintenance services do no cover repair or damage attributable to (i) non-Unisys products and services, (ii) accidents, misuse, negligence or failure of Customer to follow instructions for proper use, care and cleaning of equipment, (iii) external factors (e.g. failure or fluctuation of electrical power or air conditioning), or (iv) failure by Customer to comply with Unisys environmental specifications.


14.3 Software Warranty and Disclaimers


(a) Each item of Software with the designation "W" on Schedule B is, in its unaltered form, warranted for 90 days from its Installation Date to conform substantially to the then current published functional specifications, provided such Software is used in a manner consistent with any applicable Unisys minimum equipment and Software configuration specifications. Unisys will satisfy this warranty if it makes reasonable efforts to correct such errors reflecting significant deviations from the functional specifications as are reported by Customer to Unisys during such warranty period.


(b) Because not all errors in Software can or need be corrected, Unisys does not warrant that all Software defects will be corrected. Similarly, Unisys does not warrant that the functions contained in the Software will meet Customer's requirements or that the Software will operate in combinations selected for use by Customer.


(c) All other Software delivered by Unisys, including non-Unisys Software, is licensed "AS IS". In the case of non-Unisys Software, Customer agrees to look solely to the warranties and remedies, if any, provided by the Unisys licensor or vendor.


15. ALTERATIONS AND ATTACHMENTS


15.1 If Unisys is providing Equipment Maintenance or Software Services, Customer will give Unisys prior written notice of any proposed alterations or attachments to equipment. Unisys has no obligation to provide Equipment Maintenance Services for non-Unisys attachments or altered equipment or to provide Software Support Services or modified Software. Should Unisys agree to maintain, support or correct altered Products, Unisys may impose additional charges.


15.2 Unisys is not responsible for any malfunction, non-performance or degradation of performance of Products, supplies or maintenance support materials


5


caused by or resulting directly or indirectly from any alteration or attachment.


15.3 Unisys warranties will not apply if attachment of non-Unisys equipment or alteration of Products directly or indirectly results in any malfunction, non-performance or degradation of performance of Unisys Products; in addition, Customer will be solely responsible for resulting infringement, personal injury or damage to property and Products.


15.4 For purposes of this Agreement, "alterations" includes, but is not limited to , the incorporation of non-Unisys components, boards and subassemblies into equipment, as well as modifications to Software. "Attachments" includes, but is not limited to, any non-Unisys equipment, components or devices which are connected to Unisys Products.


16. LIMITATION OF LIABILITY


16.1 Unless further limited elsewhere in this Agreement, the entire liability of Unisys and Customer's exclusive remedy for damages from any cause related to or arising out of this Agreement, regardless of the form of action, whether in contract or in tort, will not exceed the greater of (a) $100,000 or (b) the charges paid to Unisys during the 24-months period immediately prior to Customer's notice pursuant to Section 19 for the Software or Services which are the subject matter of or directly related to the causes of action asserted. This Section 16.1 does not apply to claims covered by Section 17.


16.2 In no event will Unisys be liable for (a) any incidental, indirect, special or consequential damages, including, but not limited to, loss of use, revenues, profits or savings, even if Unisys knew or should have known of the possibility of such damages, (b) claims, demands or actions against Customer by any person, except as provided in Section 17, or (c) loss of or damage to Customer data from any cause.


16.3 The entire liability of Unisys and Customer's exclusive remedy for any defective non-Unisys Products provided under this Agreement, is limited to their return to Unisys within 90 days after shipment for refund of the amount paid to Unisys for such Products (not including any amounts paid for related Services).


16.4 Unisys may direct Customer to third parties having products or services which may be of interest to Customer for use in conjunction with the Products. Notwithstanding any Unisys recommendation, referral or introduction, Customer will independently investigate and test third-party products and services and will have sole responsibility for determining suitability for use of third-party products and services. Unisys has no liability with respect to claims relating to or arising from use of third-party products and services.


17. PATENT, COPYRIGHT AND TRADE SECRET INDEMNIFICATION FOR SOFTWARE


17.1 Unisys, at its own expense, will defend and indemnify Customer against claims that Unisys Software furnished under this Agreement infringes a United States patent or copyright or misappropriates trade secrets protected under United States law, provided Customer (a) gives Unisys prompt written notice of such claims pursuant to Section 19, (b) permits Unisys to defend or settle the claims, and (c) provides all reasonable assistance to Unisys in defending or settling the claims.


17.2 As to any Software which is or, in the opinion of Unisys, may become subject to a claim of infringement or misappropriation, Unisys may elect to (a) obtain ...