Looking for an agreement? Search from over 1 million agreements now.

Technology Transfer Agreement

This is an actual contract between Oriental Financial Group and Metavante.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
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)

MasterCardae SecureCode99 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/ Jose9 Rafael Ferne1ndez Name: Paul T. Danola Name: Jose9 Rafael Ferne1ndez 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.a9 2006, Metavante Corporation

2


3.3. Licensed Software The following terms apply with respect to Customer' s use of Metavante' s proprietary Teller Insight e4 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.a9 2006, Metavante Corporation

3


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 fora9 2006, Metavante Corporation

4


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 provi
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |