<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 14, 2000
REGISTRATION NO. 333-31878
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
CLEARCOMMERCE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7372 74-2760053
(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
JURISDICTION OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
INCORPORATION OR
ORGANIZATION)
CLEARCOMMERCE CORPORATION
11500 METRIC BOULEVARD, SUITE 300
AUSTIN, TEXAS 78758
(512) 832-0132
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MICHAEL S. GRAJEDA
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
CLEARCOMMERCE CORPORATION
11500 METRIC BOULEVARD, SUITE 300
AUSTIN, TEXAS 78758
(512) 832-0132
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
PAUL R. TOBIAS PAUL E. HURDLOW, P.C.
DANA FALLON P. STEVEN HACKER
ALAN D. BICKERSTAFF JOHN J. GILLULY III
JOHN B. SARTAIN, JR. ARIANE A. CHAN
WILSON SONSINI GOODRICH & ROSATI GRAY CARY WARE & FREIDENRICH LLP
PROFESSIONAL CORPORATION 100 CONGRESS AVENUE, SUITE 1440
8911 CAPITAL OF TEXAS HIGHWAY NORTH, AUSTIN, TEXAS 78701
SUITE 3350 (512) 457-7000
AUSTIN, TEXAS 78759
(512) 338-5400
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE OFFERING PRICE AMOUNT OF
SECURITIES TO BE REGISTERED (1)(2) REGISTRATION FEE(3)
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<S> <C> <C>
Common Stock $0.001 par value
.............................. $57,500,000 $15,180
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</TABLE>
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(1) Includes dollar amount that the underwriters have the option to purchase to
cover over-allotments, if any.
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(o) promulgated under the Securities
Act of 1933, as amended.
(3) Previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A)
MAY DETERMINE.
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<PAGE>
EXPLANATORY NOTE
The purpose of this Amendment No. 1 to the Registration Statement is solely
to file Exhibits 10.6, 10.6.1, 10.6.2, 10.7, 10.7.1, 10.7.2 and 10.7.3 to the
Registration Statement, as set forth below in Item 16(a) of Part II.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by ClearCommerce in connection
with the sale of common stock being registered. All amounts are estimates
except the SEC registration fee and the NASD filing fee.
<TABLE>
<S> <C>
SEC registration fee.......................................... $ 15,180
NASD filing fee............................................... 6,250
Nasdaq National Market listing fee............................ 95,000
Printing and engraving costs.................................. 175,000
Legal fees and expenses....................................... 350,000
Accounting fees and expenses.................................. 320,000
Blue sky fees and expenses.................................... 5,000
Transfer agent and registrar fees............................. 10,000
Miscellaneous expenses........................................ 23,570
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Total....................................................... $1,000,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a corporation to
include in its charter documents, and in agreements between the corporation and
its directors and officers, provisions expanding the scope of indemnification
beyond that specifically provided by the current law. Articles Nine and Ten of
the Registrant's Third Amended and Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law. The Registrant has entered into indemnification agreements
with its directors and executive officers, in addition to indemnification
provided for in the Registrant's Third Amended and Restated Certificate of
Incorporation, and intends to enter into indemnification agreements with any
new directors and executive officers in the future.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During the past three years, the Registrant has issued unregistered
securities to a limited number of persons, as described below. None of these
transactions involved any underwriters, underwriting discounts or commissions,
or any public offering, and the Registrant believes that each transaction was
exempt from the registration requirements of the Securities Act by virtue of
Section 4(2) thereof, Regulation D promulgated thereunder or Rule 701 pursuant
to compensatory benefit plans and contracts relating to compensation as
provided under such Rule 701. The recipients of securities in each such
transaction represented their intention to acquire the securities for
investment only and not with a view to or for sale in connection with any
distribution thereof, and appropriate legends were affixed to the share
certificates and instruments issued in such transactions. All recipients had
adequate access, through their relationships with the Registrant, to
information about the Registrant.
(a) On September 21, 1995, we issued 1,299,500 (giving effect to a 1,299.83-
for-1 stock split) shares of common stock at $0.01 per share to initially
capitalize the Registrant for an aggregate purchase price of $10.00.
(b) On May 22, 1997, we issued 501,607 (giving effect to a 1,299.83-for-1
stock split) shares of common stock at $0.01 per share for an aggregate
purchase price of $3.86.
(c) On February 1, 1997, in partial satisfaction of a consulting fee we
issued a warrant to a consultant for 20,300 shares of our common stock
exercisable at $0.01 per share, for an aggregate purchase price of $203.00.
(d) On June 2 and August 25, 1997, we issued convertible promissory notes
totaling $250,000 in connection with bridge financings to one private investor.
These notes were converted into shares of our Series A preferred stock on
September 15, 1997.
II-1
<PAGE>
(e) On September 15, 1997, we issued 789,523 shares of common stock at $0.01
per share to our founders and certain officers, for an aggregate purchase price
of $7,895.23.
(f) Prior to our Series A Preferred Stock financing in September 1997, two
of our officers had loaned us $191,196.50, of which $40,000 was repaid, and the
remainder converted into shares of our Series A preferred stock on September
15, 1997.
(g) On September 15, 1997 and December 1, 1997, we issued 3,147,830 shares
of Series A preferred stock to a group of private investors at $1.07 per share
for an aggregate purchase price of $3,368,178.10 including conversion of debt.
(h) On November 25, 1998, we entered into a Loan and Warrant Purchase
Agreement under which we issued convertible promissory notes in a bridge
financing totaling $2,000,000 to four private investors and two employees.
These notes were converted into shares of our Series B Preferred Stock on
January 8, 1999. In connection with this bridge financing, we also issued
warrants to purchase 125,228 shares of our Series B Preferred Stock at a
purchase price of $2.46 per share, for an aggregate purchase price of
$308,060.88.
(i) In 1998, we issued 196,490 shares of common stock to employees or other
service providers at $0.107 per share upon the exercise of stock options issued
under our 1997 Stock Plan for an aggregate purchase price of $21,024.43.
(j) On January 8, 1999 and April 6, 1999, we issued 4,706,196 shares of
Series B preferred stock to a group of private investors at $2.46 per share for
an aggregate purchase price of $11,577,242.16.
(k) On July 20, 1999, in connection with the execution of a credit agreement
we issued a warrant to Imperial Bank to purchase 5,000 shares of our Series B
preferred stock at a purchase price of $3.69 per share, for an aggregate
purchase price of $18,450.
(l) On September 27, 1999, we entered into a Loan Agreement, which was
subsequently amended and restated as an Amended and Restated Loan and Warrant
Purchase Agreement on November 29, 1999, under which we issued promissory notes
in a bridge financing totaling $3,999,108.95. These notes were converted into
shares of our Series C preferred stock on December 31, 1999. In connection with
this bridge financing, we also issued warrants to purchase 141,303 shares of
our Series C preferred stock at a purchase price of $7.07 per share, for an
aggregate consideration of $999,012.21.
(m) On December 31, 1999, January 21, 2000, and February 4, 2000, we issued
4,243,267 shares of Series C preferred stock at $7.07 per share for an
aggregate purchase price of $29,999,897.69 including conversion of debt.
(n) In 1999, we issued approximately 1,132,535 shares of our common stock to
employees or other service providers at a range of $0.107 to $5.00 per share
upon the exercise of stock options issued under our 1997 Stock Plan, for our
approximate aggregate purchase price of $285,398.82.
(o) On February 4, 2000, we issued a warrant to Hewlett-Packard to purchase
555,183 shares of our common stock at a purchase price of $7.07 per share, for
an aggregate purchase price of $3,925,143.81.
(p) On February 28, 2000, in connection with a release of collateral under
our credit agreement, we issued a warrant to Imperial Bank to purchase 14,144
shares of our Series C preferred stock at a purchase price of $7.07 per share,
for an aggregate purchase price of $99,998.08.
(q) On March 6, 2000, we issued a warrant to Hewlett-Packard to purchase
125,000 shares of our common stock for an exercise price of $5.00 per share,
for an aggregate purchase price of $625,000.
(r) Between December 31, 1999 and March 7, 2000, we issued 80,179 shares of
our common stock to our employees or other service providers at a range of
$.107 to $5.00 per share upon the exercise of stock options issued under our
1997 Stock Plan, for our approximate aggregate purchase price of $138,319.94.
II-2
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement.
3.1.1** Third Amended and Restated Certificate of Incorporation of
ClearCommerce Corporation.
3.1.2** Certificate of Correction to Third Amended and Restated Certificate
of Incorporation of the ClearCommerce Corporation.
3.1.3* Form of Fourth Amended and Restated Certificate of Incorporation of
ClearCommerce Corporation to be filed immediately prior to the
closing of the offering made pursuant to this Registration Statement.
3.2.1** Bylaws of ClearCommerce Corporation.
3.2.2* Form of Amended and Restated Bylaws of ClearCommerce Corporation to
be in effect after the closing of the offering made pursuant to this
Registration Statement.
4.1 See Exhibits 3.1.1, 3.1.2, and 3.1.3 for provisions of the
Certificate of Incorporation of ClearCommerce Corporation defining
the rights of the holders of common stock.
4.2 See Exhibits 3.2.1 and 3.2.2 for provisions of the Bylaws of the
Registrant defining the rights of the holder of common stock.
4.3* Specimen common stock certificate.
4.4** Third Amended and Restated Investors Rights Agreement, dated December
31, 1999, by and among the Registrant and certain stockholders of
ClearCommerce Corporation, as amended.
4.5** Warrant to purchase common stock issued to Gerald Youngblood.
4.6** ClearCommerce Corporation Stock Purchase Warrant issued to Imperial
Bank.
4.7** ClearCommerce Corporation Common Stock Purchase Warrant issued to
Hewlett Packard.
4.8** ClearCommerce Corporation Warrant to Purchase Common Stock issued to
Hewlett Packard.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1** Form of Indemnification Agreement between ClearCommerce Corporation
and each of its directors and officers.
10.2** 1997 Stock Option/Stock Issuance Plan, as amended.
10.2.1** Form of Option Agreement under the 1997 Stock Option/Stock Issuance
Plan.
10.2.2** Form of Stock Purchase Agreement under the 1997 Stock Option/Stock
Issuance Plan.
10.2.3** Form of Stock Issuance Agreement under 1997 Stock Option/Stock
Issuance Plan.
10.3** 2000 Stock Plan.
10.3.1** Form of Option Agreement under 2000 Stock Plan.
10.3.2** Form of Restricted Stock Purchase Agreement under 2000 Stock Plan.
10.4** 2000 Employee Stock Purchase Plan.
10.4.1** Form of Subscription Agreement under the 2000 Employee Stock Purchase
Plan.
10.5** 2000 Director Option Plan.
</TABLE>
II-3
<PAGE>
<TABLE>
<C> <S>
10.5.1** Form of Option Agreement under 2000 Director Option Plan.
10.6+ Strategic Relationship and Software License Agreement between
Hewlett-Packard Company and ClearCommerce Corporation.
10.6.1+ Amendment #1 to Strategic Relationship and Software License
Agreement between Hewlett-Packard Company and ClearCommerce
Corporation.
10.6.2+ Amendment #2 to Strategic Relationship and Software License
Agreement between Hewlett-Packard Company and ClearCommerce
Corporation.
10.7+ License and Service Agreement dated June 30, 1998 between
ClearCommerce Corporation and Cardservice International.
10.7.1+ License Agreement Addendum A, dated December 31, 1998, between
ClearCommerce Corporation and Cardservice International.
10.7.2 License Agreement Addendum B, dated March 31, 1999, between
ClearCommerce Corporation and Cardservice International.
10.7.3+ License Agreement Addendum C, dated March 6, 2000, between
ClearCommerce Corporation and Cardservice International.
10.7.4+ Value Added Reseller License Agreement dated June 30, 1998, between
ClearCommerce Corporation and Cardservice International.
10.8** Lease Agreement between CFH-FTAX Limited Partnership as Landlord,
and ClearCommerce Corporation, as tenant.
10.8.1** First Amendment to the Lease Agreement, dated April 9, 1999, between
CFH-FTAX Limited Partnership, as Landlord, and ClearCommerce
Corporation, as Tenant.
10.8.2** Second Amendment to the Lease Agreement, dated July 19, 1999,
between CFH-FTAX Limited Partnership, as Landlord, and ClearCommerce
Corporation, as Tenant.
10.9** Credit Agreement, dated July 20, 1999, between ClearCommerce
Corporation and Imperial Bank.
10.9.1** First Amendment to Credit Agreement between ClearCommerce
Corporation and Imperial Bank dated September 14, 1999.
10.9.2** Second Amendment to Credit Agreement between ClearCommerce
Corporation and Imperial Bank dated February 28, 2000.
10.10** Employment Agreement with Alan Scutt dated November 2, 1998.
10.11** Repurchase Agreement dated September 15, 1997 between ClearCommerce
Corporation and R.C. Estes.
10.11.1** First Amendment of Repurchase Agreement between ClearCommerce
Corporation and R.C. Estes dated March 26, 1999.
10.12** Repurchase Agreement dated September 15, 1997 between ClearCommerce
Corporation and Julie Fergerson.
10.12.1** First Amendment of Repurchase Agreement between ClearCommerce
Corporation and Julie Fergerson dated March 26, 1999.
10.13** Stock Subscription Agreement dated September 15, 1997 between
ClearCommerce Corporation and Robert J. Lynch.
10.13.1** First Amendment of Stock Subscription Agreement between
ClearCommerce Corporation and Robert Lynch dated March 26, 1999.
10.14** ClearCommerce Corporation 401(K) Plan.
</TABLE>
II-4
<PAGE>
<TABLE>
<C> <S>
10.15** Common Stock Purchase Agreement dated March 6, 2000 between
ClearCommerce Corporation and Cardservice International, Inc.
21.1** List of Subsidiaries.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2* Consent of Counsel (included in Exhibit 5.1).
24.1** Power of Attorney (see Page II-4).
27.1** Financial Data Schedule.
</TABLE>
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* To be filed by amendment
** Previously filed.
+ Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment and the omitted portions have been separately filed
with the Commission.
(b) Financial Statement Schedules
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions referenced in
Item 14 of this Registration Statement or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act,
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by a director, officer or controlling person in connection with the
securities being registered hereunder, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this Registration Statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Austin,
State of Texas, on the 14th day of March, 2000.
CLEARCOMMERCE CORPORATION
/s/ Robert J. Lynch
By:__________________________________
Robert J. Lynch
President and Chief Executive
Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Robert J. Lynch President, Chief Executive March 14, 2000
______________________________________ Officer and Director
ROBERT J. LYNCH (Principal Executive
Officer)
/s/ Michael S. Grajeda Chief Financial Officer March 14, 2000
______________________________________ and Secretary (Principal
MICHAEL S. GRAJEDA Financial Officer)
/s/ Victoria R. Richardson* Controller (Principal March 14, 2000
______________________________________ Accounting Officer)
VICTORIA R. RICHARDSON
/s/ James G. Treybig* Chairman of the Board, March 14, 2000
______________________________________ Director
JAMES G. TREYBIG
/s/ Scott D. Sandell* Director March 14, 2000
______________________________________
SCOTT D. SANDELL
/s/ Wendy L. Harrington* Director March 14, 2000
______________________________________
WENDY L. HARRINGTON
/s/ R. C. Estes Director March 14, 2000
______________________________________
R. C. ESTES
/s/ William H. McAleer* Director March 14, 2000
______________________________________
WILLIAM H. MCALEER
/s/ Joseph C. Aragona* Director March 14, 2000
______________________________________
JOSEPH C. ARAGONA
</TABLE>
/s/ Michael S. Grajeda
*By:________________________
ATTORNEY-IN-FACT
II-6
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders
of ClearCommerce Corporation
In connection with our audits of the consolidated financial statements of
ClearCommerce Corporation and its subsidiary as of December 31, 1998 and 1999,
and for each of the three years in the period ended December 31, 1999, which
financial statements are included in the prospectus, we have also audited the
financial statement schedule listed in Item 16(b) herein.
In our opinion, this financial statement schedule, when considered in
relation to the basic financial statements taken as a whole, presents fairly,
in all material respects, the information required to be included therein.
PRICEWATERHOUSECOOPERS LLP
Austin, Texas
February 25, 2000
S-1
<PAGE>
CLEARCOMMERCE CORPORATION
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
BALANCE ADDITIONS BALANCE
AT BEGINNING TO AT END
DESCRIPTION OF YEAR ALLOWANCE YEAR
----------- ------------ --------- -------
<S> <C> <C> <C>
ALLOWANCE FOR DOUBTFUL ACCOUNTS:
Year ended December 31, 1997.................... $ 0 $ 2 $ 2
Year ended December 31, 1998.................... 2 19 21
Year ended December 31, 1999.................... 21 191 212
VALUATION ALLOWANCE ON NET DEFERRED TAX ASSET:
Year ended December 31, 1997.................... $ 0 $ 433 $ 433
Year ended December 31, 1998.................... 433 2,716 3,149
Year ended December 31, 1999.................... 3,149 5,268 8,417
</TABLE>
S-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement.
3.1.1** Third Amended and Restated Certificate of Incorporation of
ClearCommerce Corporation.
3.1.2** Certificate of Correction to Third Amended and Restated Certificate
of Incorporation of the ClearCommerce Corporation.
3.1.3* Form of Fourth Amended and Restated Certificate of Incorporation of
ClearCommerce Corporation to be filed immediately prior to the
closing of the offering made pursuant to this Registration Statement.
3.2.1** Bylaws of ClearCommerce Corporation.
3.2.2* Form of Amended and Restated Bylaws of ClearCommerce Corporation to
be in effect after the closing of the offering made pursuant to this
Registration Statement.
4.1 See Exhibits 3.1.1, 3.1.2, and 3.1.3 for provisions of the
Certificate of Incorporation of ClearCommerce Corporation defining
the rights of the holders of common stock.
4.2 See Exhibits 3.2.1 and 3.2.2 for provisions of the Bylaws of the
Registrant defining the rights of the holder of common stock.
4.3* Specimen common stock certificate.
4.4** Third Amended and Restated Investors Rights Agreement, dated December
31, 1999, by and among the Registrant and certain stockholders of
ClearCommerce Corporation, as amended.
4.5** Warrant to purchase common stock issued to Gerald Youngblood.
4.6** ClearCommerce Corporation Stock Purchase Warrant issued to Imperial
Bank.
4.7** ClearCommerce Corporation Common Stock Purchase Warrant issued to
Hewlett Packard.
4.8** ClearCommerce Corporation Warrant to Purchase Common Stock issued to
Hewlett Packard.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1** Form of Indemnification Agreement between ClearCommerce Corporation
and each of its directors and officers.
10.2** 1997 Stock Option/Stock Issuance Plan, as amended.
10.2.1** Form of Option Agreement under the 1997 Stock Option/Stock Issuance
Plan.
10.2.2** Form of Stock Purchase Agreement under the 1997 Stock Option/Stock
Issuance Plan.
10.2.3** Form of Stock Issuance Agreement under 1997 Stock Option/Stock
Issuance Plan.
10.3** 2000 Stock Plan.
10.3.1** Form of Option Agreement under 2000 Stock Plan.
10.3.2** Form of Restricted Stock Purchase Agreement under 2000 Stock Plan.
10.4** 2000 Employee Stock Purchase Plan.
10.4.1** Form of Subscription Agreement under the 2000 Employee Stock Purchase
Plan.
10.5** 2000 Director Option Plan.
</TABLE>
<PAGE>
<TABLE>
<C> <S>
10.5.1** Form of Option Agreement under 2000 Director Option Plan.
10.6+ Strategic Relationship and Software License Agreement between
Hewlett-Packard Company and ClearCommerce Corporation.
10.6.1+ Amendment #1 to Strategic Relationship and Software License
Agreement between Hewlett-Packard Company and ClearCommerce
Corporation.
10.6.2+ Amendment #2 to Strategic Relationship and Software License
Agreement between Hewlett-Packard Company and ClearCommerce
Corporation.
10.7+ License and Service Agreement dated June 30, 1998 between
ClearCommerce Corporation and Cardservice International.
10.7.1+ License Agreement Addendum A, dated December 31, 1998, between
ClearCommerce Corporation and Cardservice International.
10.7.2 License Agreement Addendum B, dated March 31, 1999, between
ClearCommerce Corporation and Cardservice International.
10.7.3+ License Agreement Addendum C, dated March 6, 2000, between
ClearCommerce Corporation and Cardservice International.
10.7.4+ Value Added Reseller License Agreement dated June 30, 1998, between
ClearCommerce Corporation and Cardservice International.
10.8** Lease Agreement between CFH-FTAX Limited Partnership as Landlord,
and ClearCommerce Corporation, as tenant.
10.8.1** First Amendment to the Lease Agreement, dated April 9, 1999, between
CFH-FTAX Limited Partnership, as Landlord, and ClearCommerce
Corporation, as Tenant.
10.8.2** Second Amendment to the Lease Agreement, dated July 19, 1999,
between CFH-FTAX Limited Partnership, as Landlord, and ClearCommerce
Corporation, as Tenant.
10.9** Credit Agreement, dated July 20, 1999, between ClearCommerce
Corporation and Imperial Bank.
10.9.1** First Amendment to Credit Agreement between ClearCommerce
Corporation and Imperial Bank dated September 14, 1999.
10.9.2** Second Amendment to Credit Agreement between ClearCommerce
Corporation and Imperial Bank dated February 28, 2000.
10.10** Employment Agreement with Alan Scutt dated November 2, 1998.
10.11** Repurchase Agreement dated September 15, 1997 between ClearCommerce
Corporation and R.C. Estes.
10.11.1** First Amendment of Repurchase Agreement between ClearCommerce
Corporation and R.C. Estes dated March 26, 1999.
10.12** Repurchase Agreement dated September 15, 1997 between ClearCommerce
Corporation and Julie Fergerson.
10.12.1** First Amendment of Repurchase Agreement between ClearCommerce
Corporation and Julie Fergerson dated March 26, 1999.
10.13** Stock Subscription Agreement dated September 15, 1997 between
ClearCommerce Corporation and Robert J. Lynch.
10.13.1** First Amendment of Stock Subscription Agreement between
ClearCommerce Corporation and Robert Lynch dated March 26, 1999.
10.14** ClearCommerce Corporation 401(K) Plan.
</TABLE>
<PAGE>
<TABLE>
<C> <S>
10.15** Common Stock Purchase Agreement dated March 6, 2000 between
ClearCommerce Corporation and Cardservice International, Inc.
21.1** List of Subsidiaries.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2* Consent of Counsel (included in Exhibit 5.1).
24.1** Power of Attorney (see Page II-4).
27.1** Financial Data Schedule.
</TABLE>
- ---------------------
* To be filed by amendment
** Previously filed.
+ Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment and the omitted portions have been separately filed
with the Commission.
<PAGE>
EXHIBIT 10.6
STRATEGIC RELATIONSHIP
AND SOFTWARE LICENSE AGREEMENT
BY
AND
BETWEEN
HEWLETT-PACKARD COMPANY
AND
CLEARCOMMERCE CORPORATION
DATED
SEPTEMBER 30,1999
<PAGE>
STRATEGIC RELATIONSHIP
AND
SOFTWARE LICENSE AGREEMENT
This Strategic Relationship and Software License Agreement (this "Agreement")
is made as of September 30, 1999 ("Effective Date") by and between HEWLETT-
PACKARD COMPANY, a Delaware Corporation and its subsidiaries, divisions and
affiliates ("HP"), and CLEARCOMMERCE CORPORATION, a Delaware corporation
("ClearCommerce").
WHEREAS, HP and ClearCommerce have entered into a Bundled Software License
Agreement dated March 31, 1999 ("Bundled Software License Agreement) and
ClearCommerce License Purchase Form No. 98-1203 executed by HP on March 29,
1999 (collectively the "Prior Agreements") for the licensing of certain
ClearCommerce products to HP; AND
WHEREAS, HP and ClearCommerce desire to expand their relationship into a
strategic relationship which covers all ClearCommerce products and services;
AND
WHEREAS, HP and ClearCommerce desire to supercede the Prior Agreements with
this Agreement;
NOW THEREFORE, the parties hereby agree as follows:
I . DEFINITIONS
1.1. "Program" means ClearCommerce's software program(s) listed and
-------
described in Exhibit A hereto, including all Enhancements and
---------
localized versions thereto as further set forth below.
1.2. "Enhancements" mean all bug fixes, error corrections, updates,
------------
modifications, new features, new functionalities, upgrades or
versions of the Program or Documentation.
1.3. "Documentation" means the manuals and other documentation that
-------------
ClearCommerce ordinarily makes available with a Program and any
other documentation and information regarding the Program which HP
reasonably requests for evaluation and use of the Program as
contemplated herein, including those items listed and described in
Exhibit A hereto.
---------
1.4. "Complete Copy" of a Program includes (i) a master copy of the
-------------
Program in object code form (as specified on, Exhibit A hereto) on
---------
the media described on Exhibit A that satisfies all functional
---------
specifications set forth in the Documentation, (ii) copies of all
tools, software programs, and documentation used to certify the
correct operation of the Program, and (iii) all Documentation and
technical manuals for the Program in the form(s) and on the media
described in Exhibit A.
---------
1.5. "HP Product(s)" means any HP product, in all its supported
-------------
configurations and with all associated peripherals.
2
<PAGE>
1.6. "Subsidiaries" will mean an entity controlled by or under common
------------
control with a party to this Agreement, through ownership or control
of more than fifty percent (50% ) of the voting power of the shares
or other means of ownership or control, provided that such control
continues to exist.
1.7. "Commerce for The Millennium Program ('CFTM') shall mean HP's
--------------------------------------------
electronic commerce solution for service providers to deliver e-
commerce services to businesses.
1.8. "Store License" is defined as a per storefront license under the
-------------
CFTM for a set or open ended number of months, such that a Merchant
(as defined below) with two (2) storefronts will require two (2)
Store Licenses.
1.9. "Store-Months" will consist of one (1) month of license per Store
------------
License under the CFTM.
1.10. "Merchant" is a business entity that is selling goods or services
--------
via the Internet under the CFTM.
2. DELIVERY AND ACCEPTANCE
2.1. Delivery. ClearCommerce agrees to deliver to HP a Complete Copy of
--------
each Program listed in Exhibit A not already received and tested by
---------
HP no later than ten (10) days after the execution of this
Agreement.
2.2. Acceptance. HP will be entitled to test and evaluate any Program by
----------
whatever means it deems appropriate consistent with ClearCommerce's
rights in the Program, and ClearCommerce hereby grants to HP any
licenses necessary for HP to perform its evaluation. Such licenses
will include the right of HP to use third party subcontractors to
achieve the foregoing. HP and ClearCommerce agree that after the
initial license order represented by the License Fee specified in
Exhibit C. the acceptance criteria for the initial HP Proposed
---------
Enhancements under Section 5.3 shall be as stated in Section 1 of
Exhibit B. Acceptance criteria for future Program Enhancements will
---------
be discussed and mutually agreed to by the parties. If HP returns a
Program for rework, ClearCommerce agrees to correct the listed
defects and resubmit the Program for re-evaluation under the same
acceptance procedure. In the event HP rejects a Program after the
initial license order, it will give ClearCommerce written notice of
rejection stating the reasons for its unacceptability; and this
Agreement will terminate with respect to that Program.
2.3. [*]
3. RIGHTS GRANTED AND RESTRICTIONS
3.1. License to the Program. ClearCommerce hereby grants to HP, under
----------------------
ClearCommerce's intellectual property rights, [*] license to [*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
3
<PAGE>
[*]. Such use limitation will not apply in the case of [*] for
distribution to customers for [*] purposes. Such license will include
the right of HP to continue distributing Program versions that are
first distributed by HP and subsequently updated or upgraded to a new
release during the Term of the Agreement. Such license will include
the right of HP [*]. ClearCommerce warrants that HP's distribution
rights are [*] and shall use its [*] to ensure that ClearCommerce's
existing or subsequent third party distribution arrangements do not
infringe HP's distribution rights.
3.2. License to the Documentation. ClearCommerce hereby grants to HP,
----------------------------
under ClearCommerce's intellectual property rights, a [*] license to
[*] of (a) the Documentation; and (b) modifications, derivative works
and compilations based upon the Documentation for use with a Program.
These rights are exercisable in any medium. Such license will include
the right of HP [*]. The right to [*] is granted solely for the
purposes of [*].
3.3. License to [*]. ClearCommerce hereby grants to HP, under
ClearCommerce's intellectual property rights, a [*] license to [*],
if any, and to [*] in connection with HP's marketing and support of
the Program and training with respect to the Program. Such license
will include the right of HP to [*].
3.4. Restrictions. HP will not disassemble or otherwise modify any
------------
Program without written authorization from ClearCommerce, except as
necessary to ascertain interfaces or as permitted by law.
3.5. Localized Versions.
------------------
3.5.1. The licenses granted hereunder with respect to the Program
and associated Documentation will include all localized
versions thereof available from ClearCommerce. Upon the
request of HP, [*].
3.5.2. In the event that ClearCommerce [*], then ClearCommerce
hereby grants to HP, on terms to be reasonably agreed upon in
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
4
<PAGE>
good faith; [*] Notwithstanding the foregoing, ClearCommerce
may pay HP's costs [*] HP may [*] subject to confidentiality
restrictions reasonably satisfactory to ClearCommerce. Under
such license, ClearCommerce will provide HP with [*].
3.6. Trademarks. Neither party is granted any ownership in or license to
----------
the trademarks, marks or trade names (collectively, "Marks") of the
other party. Notwithstanding the foregoing, ClearCommerce
acknowledges that HP may use ClearCommerce's name and the name of
the Program in the course of marketing and distributing, such
Program as bundled with the HP Product.
3.7. Ownership. Subject to the rights and licenses granted to HP
-----------
hereunder, ClearCommerce retains all right, title and interest in
the Programs and Documentation, including all copyrights.
3.8. Copyright Notices. HP agrees that it will not remove any copyright
-----------------
Notices, proprietary markings, trademarks or tradenames of
ClearCommerce from the Program or Documentation. ClearCommerce and
HP agree that a second HP copyright notice in HP's standard
copyright notice form may be added to any authorized HP
modification.
3.9. Software License Terms. HP will be entitled to [*]. HP will use
reasonable efforts to include any specific Program information which
affects how Programs are licensed to licensees in Program
documentation provided by HP.
4. SALES AND MARKETING
4.1. Sales Model. Upon execution of the Agreement, HP and ClearCommerce
------------
agree to establish a co-selling program [*]. ClearCommerce agrees
that its sales force, or other ClearCommerce sales channels [*]. HP
and ClearCommerce will meet within [*] of execution of the Agreement
to mutually agree upon [*].
Notwithstanding the above, HP and ClearCommerce agree that upon
execution of the Agreement, [*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
5
<PAGE>
[*]
4.2. Sales Training. ClearCommerce agrees to provide sales assistance to
--------------
HP personnel, including [*] as is mutually agreed upon by the
parties, and marketing material such as Program Documentation,
coursework, reviewer guides, competitive product analyses and
product literature. ClearCommerce grants HP the right to reproduce
such marketing material for internal use and external distribution.
5. PROGRAM MAINTENANCE AND SUPPORT
5.1. Maintenance and Support.
-----------------------
5.1.1. ClearCommerce agrees to provide HP and its customers with
ongoing maintenance and support for the Programs under the
terms as set forth in Exhibit D hereto. ClearCommerce
---------
agrees to maintain such number of qualified personnel as is
necessary to provide such timely and knowledgeable maintenance
and support service. [*]
5.1.2. Notwithstanding the above, HP may continue to obtain training
and support from ClearCommerce for the CFTM Program on mutually
agreeable terms.
5.2. New HP Products. The parties intend that during the term of this
---------------
Agreement, the Program will be compatible with future releases and
revisions of the HP Products, including new or revised versions of
the operating systems for the HP Products, provided that such new HP
Products support the Program. [*]
5.3. HP Proposed Enhancements. ClearCommerce agrees to perform
------------------------
functionality Enhancements to the Programs for HP in accordance with
the requirements and timeframes set forth in Exhibit B. Any future
---------
Enhancements proposed by HP will be discussed by the parties and
undertaken on mutually agreeable terms. Notwithstanding any change in
control of ClearCommerce, ClearCommerce agrees to continue making
Enhancements to the Programs in accordance with the above terms.
5.4. Escrow Agreement. [*]
----------------
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
6
<PAGE>
6. CLEARCOMMERCE OBLIGATIONS FOR HOSTING AND MERCHANT ENGINE VERSION
3.7
6.1 Obligations. ClearCommerce shall dedicate its engineering and other
-----------
resources, as required to migrate the CFTM Hosting Engine licenses
from Version 3.7 to Version 3.8 by November 1, 1999, and to integrate
the BroadVision system to the Merchant Engine, Version 3.8 by
November 1, 1999.
7. PAYMENT
7.1. Payment. HP agrees to pay ClearCommerce according to Exhibit C.
------- ---------
7.2. Audit. Upon fifteen (15) days prior written notice to HP,
-----
ClearCommerce may, at its own expense, appoint a nationally
recognized independent auditor, to whom HP has no reasonable
objection, to audit and examine such records at HP's offices during
normal business hours, solely for the purpose of confirming the
accuracy of royalty payments hereunder. Such audit may be made no
more often than once every twelve (12) calendar month period. In the
event that an audit reveals an overpayment by HP, ClearCommerce
agrees to promptly refund or credit HP for such overpaid amount. In
the event that such audit reveals an underpayment by HP, HP agrees to
promptly pay ClearCommerce the amount of such underpayment. This
right of audit will be subject to ClearCommerce's auditor executing
HP's standard Confidential Disclosure Agreement.
7.3. Fee Warrant. ClearCommerce warrants that the amounts payable
-----------
hereunder by HP are no greater than those for any other licensee
under similar terms and conditions, and ClearCommerce agrees to pass
on to HP the lowest rate or price it has given to such other
licensee, commencing effectively on the date it so grants the lower
rate or price to any other licensee.
7.4. Taxes. ClearCommerce will be solely responsible for taxes on
-----
royaltie paid to ClearCommerce under this Agreement, including all
state and local use, sales, withholding, property (ad valorem) and
similar taxes.
8. WARRANTY AND INTELLECTUAL PROPERTY PROTECTION
8.1. General Warranty. ClearCommerce warrants that it has full power and
----------------
authority to grant HP the rights granted herein and that each Program
and accompanying Documentation are free of any and all restrictions,
settlements, judgments or adverse claims.
8.2. Program Warranty. ClearCommerce warrants that the Program referred to
----------------
herein will operate in accordance with and substantially conform to
the Documentation, manuals, any specifications provided or agreed to,
and any relevant data sheet or promotional literature distributed by
ClearCommerce.
8.3. Year 2000 Compliance Warranty. ClearCommerce warrants that all
-----------------------------
Programs will be
7
<PAGE>
"Year 2000 Compliant." Year 2000 Compliant Programs will
perform without error, loss of data, or loss of functionality
on account of any inability to process, calculate, compare or
sequence date data accurately. In addition, Year 2000 Compliant
Programs will not cause any HP Products in which they may be
used to fail in any of the ways described above. This Year 2000
Compliance warranty will remain in effect through December 31,
2000, notwithstanding any other warranty period specified in
this Agreement.
8.4. No Infringement. ClearCommerce warrants that the Program,
---------------
accompanying Documentation, trademarks, copyrights and trade
names referred to in this Agreement do not violate or infringe
any patent, copyright, trademark, trade secret or other
proprietary right of any third party and that ClearCommerce is
not aware of any facts upon which such a claim for infringement
could be based. ClearCommerce will promptly notify HP if it
becomes aware of any claim or any facts upon which a claim
could be based.
8.5. Intellectual Property Protection.
--------------------------------
8.5.1. ClearCommerce will, at HP's option, defend and hold
harmless HP, its subsidiaries, and customers from any
claim, suit, or proceeding alleging that the Program,
or any combination of the Program with an HP Product,
(provided that the HP Product is not the sole cause of
the claim, suit or proceeding) or any documentation, or
any part thereof, or any product provided as part of
ClearCommerce's support services furnished by
ClearCornmerce under this Agreement constitutes an
infringement of any third party's patent, copyright,
trademark, trade name, other proprietary right, or
unauthorized trade secret use. ClearCommerce agrees to
pay all damages and costs awarded with respect to such
claim or agreed to in any settlement of that claim.
8.5.2. In case any Program or Documentation or any part
thereof in such suit is held to constitute an
infringement and its use is enjoined, ClearCommerce
will, at its own expense and at its option (i) procure
for HP and its customers the right to continue use, or
(ii) if applicable, replace the same with, a
noninfringing program and documentation of equivalent
function and performance, or (iii) modify them so they
become noninfringing without detracting from function
or performance.
8.5.3. HP will give ClearCommerce prompt notice of any such
claim or action, and will give ClearCommerce the
authority, information, and reasonable assistance (at
ClearCommerce's expense) necessary to defend. If
ClearCommerce does not diligently pursue resolution of
the claim nor provide HP with reasonable assurances
that it will diligently pursue resolution, then HP may,
without in any way limiting its other rights and
remedies, defend the claim.
8.5.4. Notwithstanding the foregoing, ClearCommerce will have
no responsibility for claims arising solely and
directly from (i) unauthorized modifications of the
Program made by HP if such claim would not have arisen
but for such modifications, or (ii) unauthorized
combination or use of the Program with products not
contemplated herein if such claim would not have arisen
but for such combination or use.
8
<PAGE>
8.5.5. THIS SECTION 8.5 STATES THE ENTIRE LIABILITY OF CLEARCOMMERCE
WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS BY THE PROGRAMS OR DOCUMENTATION.
8.6. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
-------------------
CLEARCOMMERCE MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
REGARDING THE PROGRAM, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE.
9. INDEMNIFICATION FOR NON COMPLIANT YEAR 2000 PROGRAMS
9.1 Payment to HP. ClearCommerce agrees to pay all costs incurred by HP
-------------
as a result of the Programs listed on Exhibit A not being Year 2000
Compliant (as defined in Section 8.3 above). This payment shall
include but is not limited to, costs associated with any replacement
efforts, including HP and HP subcontractor engineering time
dedicated to the replacement effort, as well as penalties and lost
revenue suffered by HP as a result of schedule delays on the
affected systems.
9.2 Indemnification. ClearCommerce will, at HP's option, defend and hold
-----------------
harmless HP, its subsidiaries, and customers from any claim, suit,
or proceeding that a Program listed on Exhibit A is not Year 2000
Compliant. ClearCommerce agrees to pay all damages and costs awarded
with respect to such claim or agreed to in any settlement of that
claim.
10. TERM AND TERMINATION
10.1 Term. Unless otherwise terminated earlier under this Section 9, this
----------
Agreement will commence as of the date first set forth above, and
will continue [*]. This Agreement will renew automatically for [*]
and the Agreement will renew automatically for additional one (1)
year periods thereafter unless written notice is given by one party
to the other as to its intention not to renew this Agreement at
least sixty (60) days prior to the end of the initial or any
subsequent term.
10.2 [*]
10.3 Effect of Termination. Notwithstanding any termination of this
---------------------------
Agreement, all licenses granted to end users for use of the Program
will survive.
10.4. Survival. Notwithstanding any termination of this Agreement, the
---------------
provisions of
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
9
<PAGE>
Agreement, the provisions of this Agreement regarding support,
warranty, indemnification, limitation of liability, confidentiality,
effect of termination and the miscellaneous provisions. will survive.
11 LIMITATION OF LIABILITY
--
TO THE FULLEST EXTENT PERMITTED BY LAW, UNLESS EXPRESSLY PROVIDED
OTHERWISE UNDER THIS AGREEMENT, NEITHER PARTY WELL BE LIABLE FOR ANY
SPECIAL OR CONSEQUENTIAL DAMAGES OF THE OTHER (INCLUDING BUT NOT LIMITED
TO LOSS OF PROFITS) ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT OR IN
FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS
OF WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER
LEGAL THEORY, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE
TO THE OTHER PARTY FOR DAMAGES FOR ANY CAUSE WHATSOEVER AND AN AMOUNT IN
EXCESS OF THE FEES ACTUALLY PAID TO CLEARCOMMERCE FOR THE SPECIFIC PROGRAM
LICENSE(S) AND THE SPECIFIC SERVICE PROVIDED UNDER THIS AGREEMENT THAT ARE
IN DISPUTE. NOTWITHSTANDING THE ABOVE, CLEARCOMMERCE WILL BE RESPONSIBLE
FOR ANY DAMAGES OF ANY KIND INCURRED BY HP UNDER SECTION 9 ABOVE OR
INCLUDED IN ANY AWARD OR SETTLEMENT OF A THIRD PARTY CLAIM UNDER SECTION
8.5 ABOVE.
Notwithstanding anything herein to the contrary, the parties agree that
ClearCommerce's liability to HP for any breach under the Bundled Software
License Agreement shall be governed by the terms of Section 8 of the
Bundled Software License Agreement which provides that the aggregate
liability of either party to the other party, its officers and employees
or any third party for any claim arising under the Bundled Software
License Agreement, or otherwise arising from the transactions contemplated
under the Bundled Software License Agreement, and regardless of the form
of action, including, but not limited to, actions for breach of contract,
negligence, strict liability, recission and breach of warranty, shall not
exceed the fees actually paid to ClearCommerce for the specific program
license(s) and the specific services provided under the Bundled Software
License Agreement, but that the limit does not apply to actions brought
under Section 6.5 of the Bundled Software License Agreement.
12 CONFIDENTIAL INFORMATION
--
12.1 [*]
12.2 Confidential Information. During the term of this Agreement, either
------------------------------
party may receive or have access to technical information, including
without limitation source code, as well as information about product
plans and strategies, promotions, customers and related nontechnical
business information which the disclosing party considers to be
confidential and which is marked as confidential at the time of
disclosure or which, if disclosed orally, is identified as
confidential at the time of disclosure and is followed within thirty
(30) days of disclosure with a written memorandum so stating to the
receiving party's Designated
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
10
<PAGE>
Recipient for Notice ("Confidential Information'). Confidential
Information will be used by only those employees of the receiving
party who have a need to know such information for purposes related
to this Agreement.
12.3 Protection of Confidential Information. The receiving party will
--------------------------------------------
protect any such Confidential Information of the disclosing party
from unauthorized disclosure to third parties with the same degree
of care as the receiving party uses for its own similar information
[*]. The foregoing restriction will not apply to any information
which is (i) already known by the receiving party prior to
disclosure, (ii) independently developed by the receiving party
prior to or independent of the disclosure (iii) publicly available,
(iv) rightfully received from a third party without a duty of
confidentiality, (v) disclosed under operation of law, or (vi)
disclosed by the receiving party with the disclosing party's prior
written approval.
13 MISCELLANEOUS CLAUSES
--
13.1 Notices. All notices to be given under this Agreement must be in
writing addressed to the receiving party's designated recipient
specified in Exhibit E. Notices are validly given upon the earlier
---------
confirmed receipt by the receiving party or three days after
dispatch by courier or certified mail, postage prepaid, properly
addressed to the receiving party notices may also be delivered by
telefax and will be validly given upon oral or written confirmation
of receipt. Either party may change its address for purposes of
notice by giving notice to the other party in accordance with these
provisions.
13.2 [*]
13.3 [*]
13.4 Exhibits. Each Exhibit attached to this Agreement is deemed a part
--------------
of this Agreement and incorporated herein wherever reference to it
is made.
13.5 Independent Contractors. The relationship of the parties established
-----------------------------
under this Agreement is that of independent contractors and neither
party is a partner, employee, agent or joint venturer of or with the
other.
13.6 Assignment. Neither this Agreement nor any part hereof may be
----------------
assigned by either party without the other party's prior written
consent, and any attempted assignment is void. [*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
11
<PAGE>
[*]
13.7 No Waiver. The waiver of any term, condition, or provision of this
---------------
Agreement must be in writing and signed by an authorized
representative of the waiving party. Any such waiver will not be
construed as a waiver of any other term, condition, or provision
except as provided in writing, nor as a waiver of any subsequent
breach of the same term, condition, or provision.
13.8 Export Control. The parties agree to comply with all applicable
--------------------
United States laws and regulations which may govern the export of
Program abroad, including the Export Administration Act of 1979, as
amended, any successor legislation, and the Export Administration
Regulations issued by the Department of Commerce.
13.9 Definition Of Days. All references in this Agreement to "days" will,
------------------------
unless otherwise specified herein, mean calendar days.
13.10 Headings. The Section headings used in this Agreement are for
--------------
convenience of reference only. They will not limit or extend the
meaning of any provision of this Agreement, and will not be relevant
in interpreting any provision of this Agreement.
13.11 [*]
-----
13.12 Severability. If any provision in this Agreement is held invalid or
------------------
unenforceable by a body of competent jurisdiction, such provision
will be construed, limited or, if necessary, severed to the extent
necessary to eliminate such invalidity or unenforceability. The
parties agree to negotiate in good faith a valid, enforceable
substitute provision that most nearly effects the parties' original
intent in entering into this Agreement or to provide an equitable
adjustment in the event no such provision can be added. The other
provisions of this Agreement will remain in full force and effect.
13.13 [*]
13.14 Entire Agreement. This Agreement comprises the entire understanding
----------------------
between the parties with respect to its subject matters and
supersedes any previous communications, representations, or
agreements, whether oral or written. Specifically, the parties agree
that this Agreement supersedes the Prior Agreements and that the
Prior Agreements are no longer in full force and effect except as
set forth in Section 11 above. For purposes of construction, this
Agreement will be deemed to have been drafted by both parties. No
modification of this Agreement will be binding on either party
unless in writing and signed by an authorized representative of each
party.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
12
<PAGE>
13.15 Governing Law. This Agreement will be governed in all respects by
--------------
the laws of New York without reference to any choice of law
provisions.
13.16 Counterparts. This Agreement may be executed in counterparts, each
-------------
of which will be deemed an original.
Agreed:
HEWLETT-PACKARD COMPANY CLEARCOMMERCE
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------------ ------------------------
Print Name: [ILLEGIBLE] Print Name: [ILLEGIBLE]
--------------------- ----------------
Title: GM. E.Commerce Division Title: VP. Sales
-------------------------- ---------------------
Exhibits:
Exhibit A - Description of Program and Documentation
- Form and Media of Program and Documentation
Exhibit B - Enhancements To Be Performed by ClearCommerce
Exhibit C - Pricing
Exhibit D - Maintenance and Support
Exhibit E - Relationship and Account Managers
- Designated Recipient for Notice
Exhibit F - Escrow Agreement
13
<PAGE>
EXHIBIT A
LICENSED PROGRAM
DESCRIPTION OF PROGRAM AND DOCUMENTATION
PROGRAM:
ClearCommerce ClearLink API on HP-UX and Solaris - Version 3.8 or later
This software provides SSL security for the customer purchase information
between the storefront and the ClearCommerce Hosting Engine. It interfaces
almost any third party or in-house developed storefront to the Hosting
Engine. This software is tested and released by ClearCommerce as platform
and release-specific software; it may be available on other platforms.
Depending on the configuration of the web server and Hosting Engine, one or
more copies of the ClearLink API must be installed in order to allow
multiple storefronts to interface with the Hosting Engine.
ClearCommerce Hosting Engine on HP-UX and Solaris - Version 3.8 or later
The ClearCommerce Hosting Engine is an Internet commerce transaction
processing, reporting, and tracking engine for managing Internet sales.
Modules included with the engine are Payment, Fraud, Merchant Reporting,
Electronic Software Download, Shipping, Tax and one small merchant
application API per merchant. SNMP support is also provided with the
Hosting Engine with the installation of third party SNMP software by
Hosting Engine Licensee. For each user of the Hosting engine a non-
transferable per merchant per year fee is required. The ClearCommerce
Hosting Engine is licensed to customers who want to support 1000's of
merchants. It is not licensed to companies who which to support multiple
divisions or support multiple storefronts or multiple merchant ID's. This
capability is supplied with the Enterprise Merchant Engine.
ClearCommerce Enterprise Merchant Engine on HP-UX and Solaris - Version 3.8
or later The ClearCommerce Enterprise Merchant Engine is an Internet
commerce transaction processing, reporting, and tracking engine for
managing Internet sales. The Storefront is interfaced into the Enterprise
Merchant Engine with the ClearCommerce ClearLink API on HP-UX. Modules
included with the engine are Payment, Fraud, Merchant Reporting, Electronic
Software Download, Shipping, Tax and legacy API's. SNMP support is also
provided with the Enterprise Merchant Engine with the installation of third
party SNMP software by Enterprise merchant Engine Licensee. The Enterprise
Merchant Engine is licensed to a single business entity that needs to
support multiple storefronts or multiple merchant ID's on a single system.
ClearCommerce Merchant Engine on HP-UX and Solaris - Version 3.8 or later
The ClearCommerce Merchant Engine is an Internet commerce transaction
processing, reporting, and tracking engine for managing Internet sales. The
Storefront is interfaced into the Enterprise Merchant Engine with the
ClearCommerce ClearLink API on HP-UX. Modules included with the engine are
Payment, Fraud, Merchant Reporting, Electronic Software Download, Shipping,
Tax and legacy API's. SNMP support is also provided with the Merchant
Engine with the installation of third party SNMP software by Merchant
Engine Licensee. The Enterprise Merchant Engine is licensed to a single
business entity that needs to support only a single storefronts and single
merchant ID's on a single system.
14
<PAGE>
Payment: This includes secure order management and payment processing.
Most modem interfaces to most processors are supported although
certain modem hardware may be required;
NOTE: Lease line Interface: Unique and specific interfaces are
needed from ClearCommerce for a lease line interface to a card
processor, one interface is provided with the Hosting Engine
license. ClearCommerce supports several specific card processors
at this time and may be able to provide other card processor
interfaces for additional fees and schedules. Check with
ClearCommerce at time of purchase for the availability of lease
line card processor interfaces. In addition ClearCommerce also
supports several Internet based payment connections to selected
card processors.
Fraud: The Internet Fraud protection module performs Internet specific
fraud checks to help reduce the merchant's fraud exposure in doing
business over the Internet.
Merchant Reporting: This module provides web-based tabular and
graphical reports for the sales transactions accepted through the e-
commerce site. The Reports module provides the quantitative
information for sales reconciliation as well as statistical
information on sales. Reports are individually based on a Merchant ID
or Merchant Account Number, not the storefront.
Shipping Module and Tax Module: These modules when interfaced properly
to the SSL Storefront API allow for automatic calculations of tax and
shipping.
Electronic Software Download: This module when properly interfaced
into the SSL Storefront API allows for delivery of digital goods to
the consumer after credit authorization.
Legacy System API: These API's act as translations between the
ClearCommerce Enterprise Merchant Engine and the ClearCommerce
Merchant Engine (not available on the ClearCommerce Hosting Engine)
and the merchants pre-existing information systems (fulfillment,
accounting, call center, inventory, etc. Database schema and
cryptography are included with the feature to allow the merchant to
implement the integration.
DOCUMENTATION: Associated end-user, installation and training manuals or
documents
FORM AND MEDIA FOR PROGRAM AND DOCUMENTATION PROGRAM FORM/MEDIA:
Hosting Engine on CD-ROM; ClearLink API normally delivered on CD-ROM
DOCUMENTATION FORM/MEDIA:
PDF files on CD-ROM with Program software, or separately by email
transmission
15
<PAGE>
EXHIBIT B
PROGRAM ENHANCEMENTS
ClearCommerce shall perform Enhancements to the Programs as set forth below.
The Enhancements must be able to do the following in order for HP to accept
such Enhancement.
1) Hosting and Merchant Engines
----------------
. Performance:
ClearCommerce Hosting Engine and Merchant Engine 3.8.2 with Performance
Enhancements, operated in the following configuration:
K-580 server, 500 MB memory
HP-UX 11.0,
Oracle 8.0.5,
or later or upgraded versions of all these products, will achieve [*]
. Scalability (number of storefronts):
ClearCommerce Hosting Engine and Merchant Engine, operated in the above
configuration, [*]
. Clustering:
ClearCommerce Hosting Engine and Merchant Engine, operated in the above
configuration, [*]
. Reliability:
ClearCommerce Hosting Engine and Merchant Engine with be integrated with HP
Service Guard technology and [*]
2) Porting Parity
--------------
Except to the extent of any performance limiting features of an HP Product, all
Programs shall perform on the HP-UX platform with features, functionality, and
speed no less than that of the performance of the Programs on any other Unix
operating system. In addition, any subsequent Enhancements to the ClearCommerce
Merchant Engine resulting in a major or minor release will be [*]
3) QA Cycle
---------
ClearCommerce will permit HP to send an engineer to evaluate ClearCommerce's QA
processes at its development site(s). ClearCommerce will make changes to improve
its QA processes as mutually agreed by ClearCommerce and HP.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
16
<PAGE>
4) Year 2000 Upgrade
-----------------
ClearCommerce will upgrade all existing ClearCommerce customers running on HP
hardware where the ClearCommerce software is licensed by HP so that their
Programs are Year 2000 Compliant as defined in Section 7.3 of the Agreement.
17
<PAGE>
EXHIBIT C
PRICING
All [*] specified below shall apply for the full Term of the Agreement unless
otherwise agreed by HP and ClearCommerce.
1. Pricing for ClearCommerce Programs
HP agrees to pay ClearCommerce a license fee [*] ("License Fee") of the License
Fee will be due and payable upon execution of this Agreement. The remainder of
the License Fee shall be paid as set forth in Sections 4 and 5 below.
HP will receive credits for royalties, excluding credits for Support as set
forth below, owed to ClearCommerce against the License Fee according to the
following [*] for all ClearCommerce Programs:
Product Royalty
- ------- -------
All Programs [*] of Net Revenue Generated by HP's
Shipments of Programs
CFTM [*] of Average Selling Price of [*]
Hosting Engine Licenses
[Exception: Sec 2(iii) below]
Support: Level 1 and Level 2 [*] of ClearCommerce List Price for Support
And Upgrade Per Server Assuming List Price
Equals [*] of Initial License List Price
When ClearCommerce's cumulative royalties have exceeded the License Fee, HP will
pay to ClearCommerce per copy royalties in accordance with the above [*]. No
royalty will be due for any package item subsequently returned for a refund or
other adjustment. No royalty will be due for any Program used by or distributed
by HP or its distributors or subcontractors for reasonable demonstration,
training, testing, development or support purposes.
All accrued per copy royalties (less any offset for fees previously paid to
ClearCommerce by HP for copies of the Program that were returned or subject to
adjustment) will be paid by HP to ClearCommerce within [*] after the end of each
[*]. Royalties for CFTM Hosting Engine Licenses will not accrue to HP until
shipment to HP's CFTM customer of the CFTM solution. Payments will be
accompanied by a report stating the number of copies of the Program distributed
in the relevant quarter, and the calculation for the royalty payment.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
18
<PAGE>
2. CFTM Pricing
In addition to the License Fee and [*] specified in Section I above, HP will
continue to pay ClearCommerce the following CFTM fees:
(i) "Per Store-Month Fee" royalty in the amount of [*] for each Store License
of the Program that HP uses internally or distributes for use in
conjunction with a HP Product. Such royalty will include the right to
reproduce and distribute associated Documentation. A [*] payment for
Store-Months will be due by March 1, 2000.
(ii) Incremental licenses will be purchased in minimum increments of [*], for
which HP will pay quarterly.
(iii) Pricing for the next three (3) Hosting Engine licenses from the date of
this Agreement for transfer or sale to a third party under the CFTM will
be at a total price of [*].
3. Non-CFTM Per Merchant Per Year Pricing For Hosting Engine
In addition to the License Fee and discount schedule specified in Section 1
above, HP will pay ClearCommerce the Per Merchant Per Year fees for Hosting
Engine licenses used for non-CFTM Customers according to the following [*]:
<TABLE>
<CAPTION>
Quantity Per Year Net Pre-Pay Amount OR Royalty on Per Year Fee
- -------- -------- ------------------ -----------------------
<S> <C> <C> <C>
[*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
</TABLE>
4. Fees to migrate from Hosting and Merchant Engine Version 3.7
If on or prior to November 1, 1999, ClearCommerce completes its obligations set
forth in Section 6 of the Agreement, 1HP shall pay ClearCommerce [*] of the
License Fee upon such completion. For every week that ClearCommerce is late in
completing its obligations under Section 6, provided the delay is solely caused
by ClearCommerce, HP shall subtract [*] from the [*].
5. Fees for Enhancements
If prior to January 31, 2000, ClearCommerce completes the Enhancements set forth
on Exhibit B, HP shall pay ClearCommerce [*] of the License Fee upon such
completion. For every week that ClearCommerce is late in completing its
obligations under Exhibit B, provided the delay is solely caused by
ClearCommerce, HP shall subtract [*] from the [*].
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
19
<PAGE>
EXHIBIT D
MAINTENANCE AND SUPPORT
1. Definitions.
a) "Customer(s)" shall mean an end user licensee of the ClearCommerce Programs
who purchases technical support from HP and is under a current contract.
b) "HP Support" shall mean the first and second-level technical support
services for the ClearCommerce Programs provided by HP to its Customers.
c) "ClearCommerce Support" shall mean the third-level technical support
services for the ClearCommerce Programs provided by ClearCommerce to HP as
specified in Section 4 below.
d) "Service Agreement(s)" shall mean a phone in support agreement(s) between
HP and a Customer. Such agreements shall be identified on HP's internal
systems as options H02 (8*5 support) or H24 (24*7 support).
e) "Failure" means the Program does not substantially perform in accordance
with the User Documentation.
f) "Permanent Fix" means a fully tested and quality controlled error
correction to a Failure in the Program.
g) "Workaround" means the temporary prevention of the reoccurrence of a Failure
after implementation of a specific procedural or process change.
h) "Relief" means (i) an immediate solution or Permanent Fix to a Failure or
(ii) a Workaround that avoids the Failure or reduces the impact of such
Failure until such time that a Permanent Fix is available. This will not
include recovery, which is the restoration of a system database or similar
capacity.
2. Scope.
a) In General. HP agrees to administer Customer orders for technical support,
to provide Customers with Program installation assistance, and to provide
first and second-level technical support services for the Programs in
accordance with the terms of this Exhibit D. ClearCommerce agrees to
---------
provide technical training, applicable Documentation and Updates, and
third-level technical support services for the Programs to HP and to
Customers in accordance with the terms of this Exhibit D.
---------
b) [*] Implementation. ClearCommerce and HP will implement the terms of
the Agreement [*] where HP has a support presence.
c) Obligation to Customers. Neither HP nor ClearCommerce will make any
obligations to Customers on behalf of the other, nor commit the resources
of the other to Customers, without the other party's prior consent.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
20
<PAGE>
3. Services Provided By HP.
a) Conflict Administration and Service Orders. Upon the request of Customers
and approval by HP, HP, at its option, will accept service orders for HP
Support directly from Customers and will enter into and administer,
including invoicing, Service Agreements.
b) Installation Assistance. HP will provide Installation Assistance.
"Installation Assistance" will include support and skilled instruction to
Customers regarding the use and installation of the Programs, including but
not limited to, telephone and email support, and working with the Programs
to verify proper equipment and network configuration for the hardware and
software to be ordered, installed and set up prior to installation of the
Programs.
c) Level One Support. HP will provide Level One Support. "Level One Support"
means the initial response (and any follow up response as appropriate) to a
support request from a Customer and is available twenty-four (24) hours a
day, seven (7) days a week. Level One Support includes initial information
gathering and may include, without limitation, some or all of the
following: verification of entitlements, answering product installation,
configuration or usage questions, initial problem information gathering,
problem isolation and identification, providing standard fixes and
Workarounds to known problems, the dispatch of field technicians for on-
site remedial hardware services, the distribution and installation of field
change orders, the assignment of an Error Severity, Level (as outlined
below) and the referral of support requests to Level Two Support when
Relief cannot be provided within predetermined elapsed time guidelines.
Wherever possible HP will provide Customers with Level One Support in the
local country language during normal working hours for the local country.
Outside of these hours and during periods of local public holidays, the
Level One Support will be provided in English.
d) Level Two Support. HP will provide Level Two Support. "Level Two Support"
means promptly responding to support requests referred by Level One Support
resources by providing Relief acceptable to Customers. Level Two Support
consists of additional information gathering/problem isolation, reproducing
the Customer's problem within the HP Response Center environment, providing
Relief for both new and known complex problems, referring unresolved
problems or those requiring formal fixes to Level Three Support, and
working with Level Three Support teams to recreate and resolve the
problems.
e) Error Severity Levels. "Error Severity Levels" shall be defined as follows:
Severity 1 Critical Business Impact (Urgent): The problem
results in the failure of the complete software
system, of a subsystem, or of a software unit
within the system, and there is no workaround.
Program financial transactions can not be completed
(complete lo ss of service).
Severity 2 Serious Business Impact (High): The problem results
in the failure of the complete software system, of
a subsystem, or of a software unit within the
system, and there is a workaround or alternative
(significant loss of service).
Severity 3 Minor Business Impact (Medium): The problem does
not result in a
21
<PAGE>
failure, but causes the system to produce incorrect,
incomplete or inconsistent results or the problem
impacts the system usability (minor loss of service).
Severity 4 No work being impeded (Low): The problem does not
cause a failure, does not impair usability, and the
desired processing results are easily obtained by
working around the problem (information requested or
reported only).
4. Services And Rights Provided By ClearCommerce
a) ClearCommerce Training. Upon the Effective Date of this Agreement and for
the term of this Agreement, ClearCommerce will provide, [*], to the HP response
center engineers identified by HP, [*] on the ClearCommerce Programs to enable
HP to deliver HP Support to Customers plus [*] for each new Version or Major or
Minor Release (defined in subsection j below). HP may purchase additional
training from ClearCommerce at, a rate of [*] (if a ClearCommerce trainer
provides training at a remote HP site). In addition, ClearCommerce will make
commercially reasonable efforts to provide HP with the following information:
a) Program descriptions and functionality
b) Information relating to the interaction between the
ClearCommerce Program and the operating system
c) Technical procedures to identify the ClearCommerce Programs
d) Minimum configurations for the ClearCommerce Programs
e) Troubleshooting techniques
f) Error correction information
g) Reports of bug fixes incorporated in the current release of the
ClearCommerce Program
h) Identification of known bugs
i) Compatibility matrix for hardware platforms and associated
supported
ClearCommerce Program versions
b) Right to Copy Education Materials. ClearCommerce grants HP a license to
reproduce, in whole or in part, any education materials distributed to HP by
ClearCommerce in conjunction with the above referenced ClearCommerce training to
be used solely by HP technical support engineers for the sole purpose of
providing HP Support to Customers. All titles, trademarks, copyright and
restricted rights notices shall be reproduced in any copies. Education materials
do not include Documentation; Documentation is addressed in subsection (c)
below.
C) ClearCommerce Documentation. ClearCommerce shall provide HP at no charge, two
(2) copies of ClearCommerce's standard documentation for each ClearCommerce
Program (Documentation), for reproduction and distribution by HP. ClearCommerce
shall provide HP two (2) copies of any updates to ClearCommerce Documentation
within three (3) business days of the update's availability. ClearCommerce
Documentation will be provided in CD-ROM format, subject to availability.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
22
<PAGE>
d) ClearCommerce Updates and Upgrades. For the Term of this Agreement,
ClearCommerce grants HP a non-transferable license to use and to reproduce, in
whole or in part the above-referenced ClearCommerce Documentation and updates
and upgrades provided to HP by ClearCommerce. The ClearCommerce Documentation
and updates and upgrades shall be used solely by HP technical support engineers
for the sole purpose of providing HP Support to Customers. All titles,
trademarks, copyright and restricted rights notices, shall be reproduced in any
copies.
e) ClearCommerce Programs. ClearCommerce will provide for each ClearCommerce
Program, at no charge, two (2) copies of the ClearCommerce Program and of the
upgrades and updates for reproduction and distribution by HP.
f) Right to Use and Distribute. For the Term of the Agreement, HP shall have a
nonexclusive, non-transferrable, world-wide license to use and distribute to
Customers who have entered into Service Agreements the following items provided
by ClearCommerce: (i) updates, when available and in accordance with
ClearCommerce's standard policies and procedures; (ii) Documentation provided
with the updates; and (iii) software bug fixes to the ClearCommerce Programs.
These items shall only be used for the sole purpose of providing training and
technical support to HP employees and/or Customers for the ClearCommerce
Programs. All titles, trademarks, copyright and restricted rights notices shall
be reproduced in any copies.
g) Notification of Changes. ClearCommerce will notify HP of any changes in
ClearCommerce support policies and procedures that are reasonably expected to
materially affect HP's ability to support the ClearCommerce Programs under the
Agreement.
h) Notification of Discontinuance. In accordance with ClearCommerce's standard
procedure of providing advance notification to customers with regard to
ClearCommerce's intention to discontinue support for a product, ClearCommerce
will notify HP of ClearCommerce's intention to discontinue technical support of
any ClearCommerce Program. Notwithstanding the above, ClearCommerce shall
continue to make available for distribution and support Programs that are
updated or upgraded in accordance with subsection (j) below.
i) Diagnostic Tools and Troubleshooting. If made available by ClearCommerce and
subject to mutually agreeable terms, ClearCommerce may provide HP with
appropriate troubleshooting techniques and diagnostic tools for the
ClearCommerce Programs that ClearCommerce may have or develop which will assist
HP in software problem resolution. HP will only use such diagnostic tools
provided by ClearCommerce to perform its obligations under this Agreement.
i) ClearCommerce Programs Obsolescence Policies. ClearCommerce Programs are
identified by a numbering scheme to identify updates. This numbering scheme has
a minimum of two numbers placed in the following format: x.y. However, sometimes
ClearCommerce uses a numbering scheme which has three numbers placed in the
following format: x.y.z.
A "Version" shall be identified by the number in the "x" position. A "Major
Release" shall be identified by the number in the "y" position. A "Minor
Release" shall be identified by the number in the "z" position. A "Terminal
Release" shall be the last Update before a new Major Release or a new Version is
issued.
23
<PAGE>
(i) When a new Version or a new Major Release is made available by
ClearCommerce, ClearCommerce will continue to provide the
following services to HP for the Terminal Release upon the then
current supported operation systems that the Clear Commerce
software performs under for a period of [*] until the next
major release whichever comes first:
(a) telephone technical assistance;
(b) bug fixes for Severity I and escalated Severity 2 bugs,
including software error correction and backporting of
fixes;
(c) migration path information;
(d) certification with supported products or newer operating
system releases; and
(e) escalation support, response times, and skill availability
as specified below.
ClearCommerce will continue to provide telephone, technical
assistance, available pre-existing workarounds and fixes for
known problems that do not require any development effort, and
migration path information for an additional period of [*] for
the Terminal Release after the initial [*] period.
(ii) Upon release of a new Version or a new Major Release,
ClearCommerce will provide [*] of telephone
assistance only for all prior Minor Releases, excluding the
Terminal Release, within the immediately prior Major Release
chain.
(iii) ClearCommerce will give HP timely notice, but no less than
ninety (90) days prior written notice of planned Terminal
Releases.
In the event ClearCommerce changes its support policies from those as set forth
above, the changes will be provided to HP. If the changes are functionally
equivalent to those policies specified above, then the new policies will become
effective immediately. In the event that the changes are not functionally
equivalent to those as set forth above, the new policies will become effective
upon HP's acceptance of the changes.
The decision about any ClearCommerce support policy changes being functionally
equivalent to the policies specified above will be made jointly by the Strategic
Contacts.
(k) "Level Three Support". ClearCommerce will provide at a minimum the following
maintenance and support with respect to the Program:
(i) Take appropriate corrective action on any defect report it
receives in accordance with the schedule below, including source
code reading when the problem requires detailed analysis of
memory dumps and creating patches and patch installation
scripts. ClearCommerce will provide HP with the necessary data
or software to allow HP to distribute the solution to Customers.
Error classification is determined by HP, but
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
24
<PAGE>
ClearCommerce reserves the right to reasonably change a
classification after it is escalated to ClearCommerce.
(ii) Maintain a telephone number and technician to receive calls
during normal business hours concerning problems and
questions.
(iii) Provide prompt notification and assistance in the event
ClearCommerce determines a problem exists.
(iv) Provide normal evolutionary enhancements, upgrades and
updates, including instructions for implementation.
(v) Provide a designated, knowledgeable support contact for
providing technical support, who may be changed by written
notice.
(vi) Provide "Escalation" support to HP if HP declares a customer
situation requires immediate action as described below. This
may require ClearCommerce to give additional attention,
extra resources or assist a HP engineer on-site. An
Escalation may require ClearCommerce to respond in a
twenty-four (24) hours per day, seven (7) days per week
support when the situation is judged by HP as being Error
Severity Level 1: Critical.
l) Response Time And Effort. ClearCommerce shall respond to HP Level Two
Support referrals according to the following schedule:
<TABLE>
<CAPTION>
=================================================================================================================
Response Effort - issue worked...
Error Initial Response
Error Severity Classification Time*
Level
-------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 Critical less than 30 minutes 7X24 until resolved, the issue is
downgraded in Severity level, or both
parties agree that that the procedural or
reasonable workaround is available.
----------------------------------------------------------------------------------------------------------------------
2 Severe less than 1 hour Normal working hours
----------------------------------------------------------------------------------------------------------------------
3 Medium less than 2 hours Normal working hours
----------------------------------------------------------------------------------------------------------------------
4 Low less than 2 hours Normal working hours
======================================================================================================================
</TABLE>
* "Initial Response Time" is the time for a return call from ClearCommerce to HP
to acknowledge the error and to estimate the time for delivery of the
resolution.
5. Escalation of Customer Problems
a) Initiating Escalation. The escalation procedure ("Escalation") will be
followed if either party believes a Customer situation requires additional
attention by the other party to resolve the problem. Either party will initiate
Escalation if the normal avenues for problem resolution have been exhausted.
Conditions which will trigger Escalation include high levels of Customer
anxiety, disagreement between the parties as to responsibility for pre-screened
problems, Clearcommerce's failure to meet the response time under Section 4(l)
above, HP's failure to adequately co-operate with ClearCommerce, or recurring
intermittent critical Problems which remain unresolved after two (2) attempts.
25
<PAGE>
b) Escalation Process. Either party's Strategic Contact will call the other
party's Strategic Contact to request Escalation. Once a party requests
Escalation, appropriate contacts are designated within each party's
organization. The individual designated as the escalating party's Problem Site
Manager will then contact the other party's Problem Site Manager to develop and
write an Action Plan, as defined below. This Action Plan will outline the
specific steps the parties, both individually and mutually, will take. The
Action Plan is then followed and updated as necessary. When the problem has been
resolved, or it is determined that a resolution is not possible, the monitor
phase is initiated. When monitoring indicates that the problem is resolved, the
Escalation is closed.
If Escalation is consistently requested by either party for a number of
Customers over a period of time, then either party may request in writing that
the Support Operations be reviewed by and discussed between the appropriate HP
and ClearCommerce Vice Presidents. The Vice Presidents shall develop an
appropriate Action Plan to resolve the situation. The effectiveness of the
Action Plan will be reviewed after three (3) months. Agreed upon changes shall
then be made to the Support Operations.
c) Designated Contacts. Once Escalation has been requested, each party will
designate individuals with the responsibilities listed below and will promptly
report these designates and their telephone numbers to the other party's
Operational Contact. An individual may fulfil multiple roles, provided he/she
can carry out the described responsibilities. Once designated, the individuals
will establish and maintain direct contact with their counterparts until the
escalation is closed as described below.
i. Problem Site Manager. The Problem Site Manager ensures the Action
Plan is developed, written, and communicated properly, provides
the highest level of technical knowledge short of factory/lab;
provides on-site assistance as appropriate; and ensures problem
replication and generation of technical "work-around," if
possible.
ii. Factory Problem Manager (designated whenever needed; does not
have to be designated initially). The Factory Problem Manager
manages Escalation communications within factories/labs involved;
utilizes factory/lab resources for escalated problem support;
analyses problem data sent from field; reviews action plan; and
ensures prompt factory/lab response to escalated field requests
iii. Strategic Contacts. If at any time during Escalation, one party
feels the problem is not being dealt with or the other party is
not responding adequately to requests for assistance, the
respective Strategic Contact will be notified. The Strategic
Contacts will then work together to resolve the issue.
d) Action Plan. The designated contacts will work together to develop a mutual
Action Plan as quickly as possible which establishes, at minimum:
* Actions to be taken, which may include (i) reprioritizing
commitments, (ii) increasing resources, (iii) establishing
remote dial into Customer system for direct observation, or
(iv) sending engineers on-site.
* Responsibility for each action
* Purpose or desired result of each action
* Expected completion of each action
* Contingency/next step if desired results are not achieved
26
<PAGE>
This Action Plan will be modified by mutual agreement among the
designated contacts whenever the situation requires.
e) On-Site Visits. During Escalation, either party may request that the other
party send engineers on-site to resolve escalated problems. Typical situations
for which a party may request on-site Visits may include: (i) when the Customer
perceives that its business relationship is deteriorating due to persistent
problems with the ClearCommerce Programs, or (ii) when it is not possible or is
extremely inconvenient to reproduce the problem remotely, at the ClearCommerce
site, or at HP in a timely fashion.
f) Status Updates. Each designated contact will establish a schedule of follow-
up, status update communications with his/her counterpart that will ensure
timely exchange of information.
g) Monitor Phase. The purpose of the monitor phase is to evaluate the Customers
environment over some period of time to verify that the problem has been
resolved. Both parties will co-ordinate monitoring activities and mutually agree
to close the monitor phase when it is clear the problem is resolved.
h) Closing Escalation. When both parties agree that the problem has been
resolved or the situation no longer requires Escalation, the Escalation is
closed. Each designated contact will exchange final reports with his/her
counterpart summarizing the Customer problem(s), actions taken, results of those
actions, likelihood of problem recurrence, and recommended future actions.
6. Relationship Management
a) Strategic Contacts. ClearCommerce and HP will each designate an employee who
shall serve as the sole liaisons between HP and ClearCommerce as each party's
strategic contact for support related matters ("Strategic Contact"). Each party
shall notify the other whenever the designated Strategic Contacts'
responsibilities are transferred to another employee. The Strategic Contacts
will be the focal points for general relationship and process issues and will be
responsible for managing the overall support relationship of the parties. The
initial Contacts are set forth below.
==========================================================
CLEARCOMMERCE HP
==========================================================
Strategic contacts: Strategic Contacts:
Mindy Kerber Jim Bignell
Phone: Phone: (650) 691-5140
==========================================================
b) Cooperation. HP and ClearCommerce acknowledge that the timely provision of
and access to assistance, co-operation, complete and accurate information and
data from their officers, agents, and employees are essential to performance of
any technical support services, and that each party's ability to provide such
services is dependent upon same
27
<PAGE>
EXHIBIT D
ACCOUNT REPRESENTATIVES
LICENSOR Copy to:
- -------- --------
Name ____________
Title ___________
Address _________
__________
Phone ___________
HP: Copy to:
- --- --------
Name _____________
Title ____________
Address __________
__________
Phone ____________
HOLDER:
- -------
Name _____________
Title ____________
Address __________
___________
Phone ____________
28
<PAGE>
EXHIBIT E
ACCOUNT/RELATIONSHIP MANAGERS
HP CLEARCOMMERCE
_____________________ _______________________
_____________________ _______________________
_____________________ _______________________
_____________________ _______________________
_____________________ _______________________
_____________________ _______________________
Tel: ________________ Tel: __________________
Fax.:________________ Fax:___________________
DESIGNATED RECIPIENT FOR NOTICE
HP CLEARCOMMERCE
_____________________ _________________________
_____________________ _________________________
_____________________ _________________________
_____________________ _________________________
_____________________ _________________________
_____________________ _________________________
Tel: ________________ Tel:_____________________
Fax: ________________ Fax:_____________________
29
<PAGE>
EXHIBIT 10.6.1
AMENDMENT #1
TO
STRATEGIC RELATIONSHIP AND SOFTWARE LICENSE AGREEMENT
BY AND BETWEEN HEWLETT-PACKARD COMPANY
AND CLEARCOMMERCE CORPORATION
DATED SEPTEMBER 30, 1999
WHEREAS, Hewlett-Packard Company ("HP") and ClearCommerce Corporation
("ClearCommerce") have entered into a Strategic Relationship and Software
License Agreement dated September 30, 1999 (the "Agreement"); AND
WHEREAS, HP and ClearCommerce desire to amend the Agreement;
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereby agree to amend the Agreement as follows:
1) Section 5.4. Delete the title and text of this Section and Exhibit F of the
------------ ---------
Agreement and replace with the following language:
[*] ClearCommerce shall deliver to HP [*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
1
<PAGE>
Any additional or contrary terms of license in this Agreement will take
precedence over the terms described in this Section 5.4.
HP will treat [*] Confidential Information as defined and specified in Section
12.2 and 12.3 of this Agreement."
2) Section 8.3. Change the last sentence to read as follows:
------------
"This Year 2000 Compliance warranty will remain in effect through [*],
notwithstanding any other warranty period specified in this Agreement."
3) Section 11. Change the 3rd sentence, 1/st/ paragraph of this Section to read
-----------
as follows: "NOTWITHSTANDING THE ABOVE, CLEARCOMMERCE WILL BE RESPONSIBLE: (i)
FOR ANY DAMAGES OF ANY KIND INCLUDED IN AN AWARD OR SETTLEMENT OF A THIRD PARTY
CLAIM UNDER SECTION 8.5 ABOVE ("INTELLECTUAL PROPERTY PROTECTION"); OR (ii) FOR
ANY DAMAGES OF ANY KIND INCURRED BY HP UNDER SECTION 9 ABOVE ("INDEMNIFICATION
FOR NON COMPLIANT YEAR 2000 PROGRAMS") UP TO A LIMIT OF [*]."
4) Section 13.6. Add the following sentence to the end of this Section:
-------------
[*]
5) Exhibit C, Section 1. Change the 2/nd/ sentence of the 4/th/ paragraph to
---------------------
read as follows: "Royalties for CFTM Hosting Engine Licenses will only accrue to
HP as follows: (i) for HP's CFTM customers who choose to use the Program to
obtain any functionality of the Program within the CFTM system, Program
royalties will accrue to HP upon shipment of the CFTM system to HP's CFTM
customer; (ii) for HP's CFTM customers who choose to use software other than the
Program inside the CFTM system or any software outside of the CFTM system (such
as through Card Service International) to obtain the Program functionalities, no
Program royalties (including those specified in Section 2 of this Exhibit C)
will accrue to HP."
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
2
<PAGE>
6) Exhibit C, Section 4. Change this Section to read as follows:
---------------------
"For the [*] of the License Fee to be paid by HP to ClearCommerce under this
Section, HP shall make [*] payments of [*] each. The first payment shall be due
by January 15, 2000. The remaining 4 payments shall be due in accordance with
the following schedule:
Payment Due Date
- ------- --------
[*] [*]
7) Exhibit C, Section 5. Change this Section to read as follows:
---------------------
"If prior to January 31, 2000, ClearCommerce completes the Enhancements set
forth on Exhibit B, HP shall pay ClearCommerce [*] of the License Fee according
to the following schedule:
Payment Due Date
- ------- --------
[*] [*]
For every week that ClearCommerce is late in completing its obligations under
Exhibit B, provided the delay is solely caused by ClearCommerce, HP shall
subtract [*] from the [*]."
The parties agree that this Amendment #1 shall take effect upon the date of the
execution by HP's duly authorized representative below.
Agreed:
HEWLETT-PACKARD COMPANY CLEARCOMMERCE CORPORATION
By: _______________________________ By: ______________________________
Print Name: _______________________ Print Name: ______________________
Title: ____________________________ Title: ___________________________
Date: _____________________________ Date: ____________________________
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
3
<PAGE>
EXHIBIT 10.6.2
AMENDMENT #2
TO
STRATEGIC RELATIONSHIP AND SOFTWARE LICENSE AGREEMENT
BY AND BETWEEN HEWLETT-PACKARD COMPANY
AND CLEARCOMMERCE CORPORATION
DATED SEPTEMBER 30, 1999
WHEREAS, Hewlett-Packard Company ("HP") and ClearCommerce Corporation
("ClearCommerce" or "CCC") have entered into a Strategic Relationship and
Software License Agreement dated September 30, 1999 (the "Agreement"); AND
WHEREAS, HP and ClearCommerce amended the Agreement by Amendment #1, dated
____________, and desire to further amend the Agreement as set forth below to
reflect expansion of their relationship to include HP's appointment as an
original equipment manufacturer;
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereby agree to amend the Agreement as follows:
1. Section 1, DEFINITIONS, is amended by adding the following definitions:
"API's or CCC API's" means the external and internal Application Programming
Interfaces developed by Clear Commerce, namely a set of programmatic calls into
the application which allow applications and Extensions to control, be
controlled by, or alter the behavior of the Program(s) in a clearly defined
fashion. The term API includes any available development tools, documentation
and software developer's kits required to make use of the programming interfaces
owned or licensable by ClearCommerce without royalty obligations.
"HP API's" means the external and internal Application Programming Interfaces
developed by HP, namely a set of programmatic calls into the application which
allow applications to control, be controlled by, or alter the behavior of HP's
IPS products, and similar future products ("HP IPS Products"), in a clearly
defined fashion. The term HP API includes any available development tools,
documentation and software developer's kits required to make use of the
programming interfaces owned or licensable by HP without royalty obligations.
"Extension" means software code developed by or on behalf of HP using the CCC
API's to add functionality or differentiation to the Program(s) which interfaces
with CCC API's but which does not alter or modify the source code to the
Program(s) as would a derivative work.
"ClearCommerce Extension" means software code developed by or on behalf of
ClearCommerce using the HP API's to add functionality or differentiation to the
HP IPS Products which interfaces with HP API's but which does not alter or
modify the source code as would a derivative work.
"Servers" means one box installed at a particular customer site which may
include 1 or more CPU's running a single copy of the Operating System for the
Programs.
"Training Materials" mean those materials used by ClearCommerce to provide sales
and technical training to its end users and sales and technical training
materials used for train-the-trainer programs including but not limited to
Documentation, coursework, reviewer guides, competitive product analyses and
product literature.
2. Subsection 2.3, Enhancements, is amended by replacing it with the following:
------------
2.3 [*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
1
<PAGE>
[*]
3. Subsection 3.7, Ownership, is amended to add the following at the end: [*]
----------
The parties jointly hold all right, title and interest in jointly developed
software, without accounting obligations as described in a development
agreement or statement of work governed by this Agreement. ClearCommerce
retains all its right, title and interest in the ClearCommerce Extension(s)
developed by or on behalf of ClearCommerce.
4. Section 3.1, License to the Program, is amended to add: [*]
----------------------
5 Section 3, RIGHTS GRANTED AND RESTRICTIONS, is amended by adding the
following provisions as subsections 3.10, 3.11 and 3.12:
3.10 License to the API's. ClearCommerce hereby grants to HP, under
---------------------
ClearCommerce's intellectual property rights, a [*] also grants to HP,
under ClearCommerce's intellectual property rights, [*] external
distribution by ClearCommerce to HP customers together with the Licensed
Program as described in the license grant contained in subsection 3.1.
3.11 License to the HP API's. HP hereby grants to ClearCommerce, under HP's
------------------------
intellectual property rights, [*]. HP also grants to ClearCommerce, under
HP's intellectual property rights, [*]
3.12 HP will use commercially reasonable efforts to [*] to allow HP to [*]
under this Agreement under such terms and conditions as acceptable to HP
in its sole discretion.
5. Subsection 4.1, Sales Model, is deleted and replaced with the following:
-----------
4.1 Sales Model. HP and ClearCommerce agree to participate in a co-selling
------------
program for a period of [*] commencing on the Effective Date of this
Amendment #2 ("co-selling period"). The parties will meet within 30 days
from the Effective Date of this Amendment #2 to finalize their revised
rules of engagement for the co-selling program including revenue and
commission allocations for the HP and ClearCommerce sales forces. During
the co-selling period, ClearCommerce agrees that its sales force may
receive compensation regardless of whether HP or ClearCommerce closes the
sale of the Programs. During the 3 month co-selling period and for those
deals listed on the attached Exhibit K, to be mutually agreed upon within
10 days of executing this Amendment #2, [*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
2
<PAGE>
[*] of this Amendment No. 2. For [*]thereafter, ClearCommerce will use
commercially reasonable efforts to provide sales support (exclusive of
training) to HP on a resource available basis for strategic sales deals,
as mutually agreed. For . professional services assistance during the co-
selling period, CCC will supply [*] of effort without fee and any
additional services will be charged at [*] or as mutually agreed. For 3
months after the co-selling period, should HP request a representative of
ClearCommerce to participate in a standard sales call after the co-selling
program ends, HP agrees to reimburse ClearCommerce up to [*] for such
sales support.
Notwithstanding the above, HP and ClearCommerce agree that upon execution
of the Amendment #2, any sales of the Programs to HP subsidiaries and
divisions shall be credited exclusively to HP, excluding any sales that
were in progress and generated exclusively by ClearCommerce prior to
execution of the Amendment #2.
During the Initial Term and any Renewal Term, HP agrees that CCC products
will be promoted actively internally as a solution for all HP internal e-
commerce initiatives as appropriate.
6. Subsection 4.2, Sales Training, is deleted and replaced with the following:
--------------
ClearCommerce agrees to provide [*] and such additional sales training as is
mutually agreed upon by the parties, and marketing materials and Training
Materials. ClearCommerce grants HP the right to use the marketing materials in
accordance with subsection 3.3, License to [*] and to use the Training Materials
--------------
in accordance with subsection 3.2, License to [*] under the license grant
--------------
stated in subsection 3.2 for Sales Training and Technical training
as described in Exhibit D, subsection 4.
7. Section 4, SALES AND MARKETING, is amended by adding the following
subsections 4.3, Sales and Marketing Resources, 4.4, Branding, and 4.5,
----------------------------- --------
Press Release:
--------------
4.3 Sales and Marketing Resources. HP agrees to designate a minimum of [*]
-----------------------------
or [*] within three months of execution of this Amendment #2 to license the
Programs to HP customers. CCC will designate a full-time Global account manager
and technical resource to HP to co-ordinate: training, marketing materials,
marketing support, technical support.
4.4 Branding. For ClearCommerce Program(s) used hereunder by Enterprise
-----------
Commerce and CFTM programs and VeriFone, HP may brand the Programs as follows:
a) If an HP only product with no reference to any other 3/rd/ party component,
HP may include explicitly using the ClearCommerce brand and product names, using
the 'powered by' approach or private labeling the Programs, b) where HP
references any 3/rd/ party component (including VeriFone), HP will include
explicitly, using the ClearCommerce brand and product names or using the
'powered by' approach c) on Private labeled products where no HP brand
--
(including VeriFone) exists, there is no requirement for a ClearCommerce brand.
ClearCommerce agrees to provide HP the necessary software code, Documentation
and support needed to change the install and boot screens to conform to HP's
branding strategy for the Programs. If source code is required to perform these
modifications CCC will do so under the terms of the Master Professional
Consulting Agreement.
The parties agrees this provision, (4.4 Branding), may be further amended as
required to comply with HP corporate-wide policies regarding HP product
branding.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
3
<PAGE>
As to any other HP program or use of ClearCommerce Program(s), the parties will
mutually agree how ClearCommerce Program(s) brand names will be included or not
in the HP product brand name on a program by program basis with due
consideration to the Program Roadmap.
ClearCommerce agrees that it will [*]. The parties recognize their intention
under this provision [*].
4.5 Press Release. Within two (2) weeks after execution of this Amendment #2,
--------------
ClearCommerce may release a joint press release with which HP has approved. HP
will issue a press release in its normal course of business.
8. The first sentence of subsection 5.2, New HP Products, is deleted and
---------------
replaced with the following: "The parties intend that during the Initial
Term and any Renewal Term of this Agreement, the Program(s) where
reasonably possible will be compatible and interoperable with future
--------------
releases of the HP Products, provided that such new HP Products support the
Programs."
Subsection 5.2, New HP Products, is further amended by adding the
---------------
following provision at the end of the subsection: "ClearCommerce intends to
maintain backward compatibility of its API's licensed to HP hereunder
during the Initial Term and any Renewal Term, where commercially reasonable
and as offered to other ClearCommerce customers."
9. The title to Section 5 is amended to read as follows: PROGRAM MAINTENANCE,
SUPPORT AND DEVELOPMENT ACTIVITIES, and the following is added as
subsection 5.5:
5.5 Development Activities.
----------------------
i. Development Activities. The parties will engage in joint development
----------------------
activity which may include worldwide bank and processor payment interfaces,
internet fraud protection ,internationalization, performance tuning, interfacing
into other HP products (open view, service guard), porting of HP's current world
wide bank and processor payment interfaces, and interfaces between HP's IPS and
future physical world products and upgradeability. They also intend to explore
the need to engage in other joint development opportunities after evaluating
their respective needs in relation to the Program(s), the market or customer
requirements and feasibility of any such development activity. The details for
all joint development projects will be specifically described in one or more
statements of work, which will be governed by this Agreement. Each statement of
work will: (i) be made in writing in the form attached as Exhibit G, (ii)
reference this Agreement, (iii) be numbered consecutively on a chronological
basis, and (iv) be executed by authorized representatives of ClearCommerce and
HP. Individual statements of work should address at least the following areas:
1. Project description including scope of project; 2. Price, payment and
delivery schedules; 3. Acceptance criteria; 4. Nature of deliverables; 5.
Project coordination and management; 6. Support plan and 7. Other governing
terms and conditions. HP may retain ClearCommerce to perform mutually agreeable
development activities which will be governed by the terms and conditions of the
Master Professional Consulting Agreement between the parties which is attached
hereto as Exhibit H.
ii. Program Roadmap and Meetings. The parties will jointly develop a mutually
-----------------------------
agreeable Program roadmap outline within 30 days from the Effective Date of this
Amendment #2. The parties agree the focus of joint development activities is on
developing products which meet the needs of the parties. The parties will
designate the appropriate business and technical
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
4
<PAGE>
representatives to participate in regularly scheduled meetings (no less than
once per calendar quarter) to review the Program roadmap outline, all planned
and ongoing joint development activities, Program releases and any other issues
or matters relevant to the successful execution of this Agreement.
iii. Engineering Resources. Each party shall provide engineering resources on
---------------------
joint product development projects relating to ClearCommerce Merchant Engine and
ClearCommerce Hosting Engine or other mutually agreeable projects as the parties
deem appropriate.
iv. HP UX Servers. HP will provide HP UX Servers, with an HP list price of
-------------
[*]. In consideration, ClearCommerce will rebate to HP [*] to process payment
transactions. An additional $2,000,000 of list price HP UX Servers, HP software
and where appropriate 3/rd/ party software (which HP elects to include based on
its royalty obligations and licensing terms with such third party licensors) for
which HP is a reseller will be supplied to ClearCommerce at [*] for use by
ClearCommerce for joint development activities, CCC service bureau and technical
support. ClearCommerce agrees to pay to HP for the cost of such hardware and
software on a net 45-day basis. ClearCommerce agrees to retain (and not to
transfer or assign) any HP UX Servers it acquires hereunder for no less than 2
years from the date of acquisition
10. Subsection 10.1, Term, is deleted and replaced with the following: "Unless
----
otherwise terminated earlier under subsection 10.2, this Agreement
commenced on September 30, 1999, and continues thereafter for [*] ("Initial
Term"). Thereafter, the term of this Agreement automatically renews for
periods of [*] ("Renewal Term") unless either party elects not to renew
this Agreement and provides written notice of its election at least 90 days
before the end of the applicable Renewal Term."
11. Subsection 10.3, Effect of Termination, is amended by adding the following
---------------------
to the end of the provision: "Regardless of the reason for termination, HP
shall retain the right to use the Program(s) and the API's then licensed
for the sole purpose of fulfilling any contractual obligations for
maintenance and support services to its customers. Should termination
result from HP's uncured, material breach of the Agreement, HP may use the
Program(s) and API's then licensed for the sole purpose of fulfilling any
contractual obligations for maintenance and support services to its
existing customers that HP has paid to CCC the applicable support and
maintenance fees but only for a period not to exceed three (3) years from
the date of termination and not for the purposes of creating Extensions.
Such limited continued use is governed by this Agreement.
If this Agreement is terminated because of HP's uncured, material default,
the right to distribute the Program(s) already in HP's inventory or in
transit as of the effective date of termination, shall cease on the earlier
of: (i) 60 days after the effective date of termination or (ii)
distribution by HP of the last Program to a third party. All Program(s)
remaining in HP's inventory thereafter shall be destroyed.
In the event this Agreement is terminated because of ClearCommerce's
uncured, material breach, HP shall have the right and license to continue
to use and license the Program(s) and API's in accordance with this
Agreement including the right to develop Extension(s) so long as HP has
made and continues to make all payments to ClearCommerce hereunder.
Regardless of the reason for termination, Confidential Information will be
returned to the owner within 60 days of termination of this Agreement.
Notwithstanding, a party may retain the minimum number of copies of
Confidential Information reasonably necessary for maintenance and support
purposes and to exercise any rights or perform such obligations surviving
termination of this Agreement.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
5
<PAGE>
Nothing in this section 10.3 or in this Amendment #2 shall change, affect,
or in any way modify, amend, or alter the terms and conditions set forth in
sections 5.4, 11, 13.6 of Amendment #1 to this Agreement. In addition,
section 5.4 shall take precedence over this section 10.3.
12. Subsection 13.3, Equity Participation, is deleted.
--------------------
13. Subsection 13.13, [*], is amended by adding the following to the end:
---
[*]
14. Section 13 is amended by adding the following as 13.17, Escalation
----------
Procedure:
---------
13.7 Escalation Procedure. The escalation procedure stated in section 5 of
--------------------
Exhibit D, Support and Maintenance, shall apply to resolve any problems or
disputes arising between the parties.
15. Exhibit A, LICENSED PROGRAM, is amended to add an introductory
statement: "The Programs listed in this Exhibit and licensed to HP by this
Agreement include all versions, beginning with 3.8.2 and later, on HP-UX,
Solaris and NT, as released during the Initial and Renewal Terms (and such
other platforms HP may request and to which the parties agree) plus
hosting services and, if and when available, fraud services and all other
software programs developed and made generally commercially available by
ClearCommerce during the Initial term and any Renewal Term of this
Agreement to its indirect channels of distribution. Notwithstanding, the
parties agree, during the Initial Term, ClearCommerce will negotiate with
HP, in good faith, to release such Program(s) as HP requests for use in
accordance with this Agreement."
16. Exhibit B, PROGRAM ENHANCEMENTS, section 2 is amended by adding API's
to the provision.
17. Exhibit C, PRICING, is deleted and replaced with the following:
All pricing discounts specified below shall apply for the Initial Term and any
Renewal Term of the Agreement unless otherwise agreed in writing by HP and
ClearCommerce.
1. Pricing for ClearCommerce Programs.
-------------------------------------
(i) License Fee. HP agrees to pay ClearCommerce a license fee of [*] ("License
------------
Fee"). The License Fee payment obligation for the Initial Term is irrevocable.
HP paid ClearCommerce [*] of the License Fee for the first year of the Initial
Term upon execution of the Agreement. The remainder of the first year's License
Fee shall be paid as set forth in Sections 4 and 5 as set forth in Sections 4
and 5 below. The License Fees for the second, third and fourth year of the
Initial Term will be paid in 4 equal increments of [*] payable with the royalty
report submitted in accordance with subsection (iii) below.
(ii) Application of License Fee and Royalty Schedule. [.HP will receive credits
-----------------------------------------------
for royalties, including credits for up to [*] per year for non-Program License
Fees, owed to ClearCommerce ("Credits") against the License Fee according to the
following discount schedule for all ClearCommerce Programs:
Product Royalty
- ------- -------
All Programs [*] of the net revenue derived from HP's license of the
Programs subject to the following minimum royalties:
For ClearCommerce Enterprise Merchant Engine and
ClearCommerce Merchant Engine: HP will pay to
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
6
<PAGE>
ClearCommerce a minimum royalty* of [*] for production use
and a minimum royalty* of [*] for Program(s) licensed for
testing, evaluation, development and for each additional
Server
For ClearCommerce Hosting Engine: HP will pay to
ClearCommerce a minimum royalty* of [*] for production use
and a minimum royalty* of [*] for Program(s) licensed for
testing, evaluation, development and for each additional
Server
HP will endeavor to use its reasonable best efforts to
discount the Program(s) and hardware at rates no higher than
HP software products licensed and hardware sold as a part of
the total solution provided to the HP customer.
CFTM [*] of Average Selling Price of [*]
Hosting Engine License
[Subject to 2(iii) below]
Support [*] of ClearCommerce's List Price for Support
HP provides 1/st/& 2/nd/ level (includes Enhancements)
Support; installation and preinstallation.
ClearCommerce
Provides all other support if
ClearCommerce receives the appropriate support
fees.
[See, Exhibit D.]
*Minimum royalty may be adjusted upon mutual agreement based on market
conditions.
iii. CCC reserves the right to increase, decrease or change CCC's list price for
Programs, professional services, education and training, and support fees at
anytime during the Agreement with 90 day advance notice to HP. CCC reserves the
right to increase, decrease or change CCC's pricing model so long as the new
pricing model keeps HP at parity with other OEMs having a substantially similar
relationship with CCC.
Royalties for CFTM Hosting Engine Licenses will only accrue to HP as follows:
(1) for HP's CFTM customers who choose to use the Program to obtain any
functionality of the Program within the CFTM system, Program royalties will
accrue to HP upon shipment of the CFTM system to HP's CFTM customer; (2) for
HP's CFTM customers who choose to use software other than the Program inside the
CFTM system or any software outside of the CFTM system (such as through Card
Service International) to obtain the Program functionality, no Program royalties
(including those specified in Section 2 of this Exhibit C) will accrue to HP."
When the Credits exceed the License Fee then paid, any additional royalties paid
will reduce future License Fee payments beginning with the then next due payment
and ending with the last payment; after exhaustion of all License Fees paid
hereunder, HP will pay to ClearCommerce royalties in accordance with the
schedule set forth above with the royalty report described in subsection (iii)
below. No royalty will be due for any package item subsequently returned for a
refund or other similar adjustment consistent with HP's standard return
policies.
(iii) Royalty Payments and Royalty Reports. All accrued royalties (less any
------------------------------------
offset for Credits to the License Fees previously paid or due to ClearCommerce
by HP or for Programs returned or otherwise similarly adjusted by HP) will be
reported by HP to ClearCommerce within [*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
7
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after the end of each HP fiscal quarter which ends on the last day of January,
April, July and October and will be paid within 45 days after receipt of the
appropriate invoice.
2. CFTM Pricing
------------
In addition to the License Fee and discount schedule specified in Section 1,
above, HP will continue to pay ClearCommerce the following CFTM fees only for
CFTM deals equaling [*] as set forth in subsection (iii) below:
(i) "Per Store-Month Fee" royalty in the amount of US [*] for each Store
License of the Program that HP uses internally or distributes for use in
conjunction with an HP product. Such royalty will include the right to
reproduce and distribute associated Documentation. A [*] payment for
Store-Months will be due by March 1, 2000.
(ii) Incremental licenses will be purchased in minimum increments of 1,000
Store-Months for which HP will pay along with the royalty report.
(iii) Pricing for the next 3 Hosting Engine licenses from the date of this
Agreement for transfer or sale to a third party under the CFTM will be at
a total price of [*].
3. Per Merchant Per Year Pricing for Hosting Engine*
-------------------------------------------------
In addition to the License Fee and discount schedule specified in Section 1,
above, HP will pay ClearCommerce the Per Merchant Per Year Fees for Hosting
Engine licenses according to the following discount schedule:
Quantity Per Year Net Pre-Pay Amount OR Royalty on Per Year Fee
- --------------------------------------------------------------------------
0-500 $[*] $ [*]
501-1000 [*] [*] [*]
1001-5000 [*] [*] [*]
5001-10000 [*] [*] [*]
10001 + [*] [*] [*]
*Minimum royalty may be adjusted upon mutual agreement based on market
conditions.
See Exhibit J for ClearCommerce Merchant Per year Pricing Policy
4. Fees to migrate from Hosting and Merchant Engine Version 3.7
------------------------------------------------------------
For the [*] of the License Fee to be paid by HP to ClearCommerce under this
Section, HP shall make 5 monthly payments of [*] each. The first payment shall
be due by January 15, 2000. The remaining 4 payments shall be due in accordance
with the following schedule:
Payment Due Date
- ------- --------
[*] [*]
[*] [*]
[*] [*]
[*] [*]
5. Fees for Enhancements
---------------------
If prior to January 31, 2000, ClearCommerce completes the Enhancements set forth
on Exhibit B, HP shall pay ClearCommerce [*] of the License Fee according to the
following schedule:
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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Payment Due Date
- ------- --------
[*] January 31, 2000
For every week that ClearCommerce is late in completing its obligations under
Exhibit B, provided the delay is solely caused by ClearCommerce, HP shall
subtract [*] from the [*].
Professional Services Rates. [*] per hour plus T& L
- ---------------------------
Special Pricing For PayWorks Migration. ClearCommerce agrees to work with HP
- --------------------------------------
to migrate PayWorks customers to ClearCommerce Program(s).
6. "Quick Start" Hosted Service. ClearCommerce will pay HP [*] HP customers
----------------------------
signed up by HP or its resellers for the service which amount will be paid
within 30 days from the last day of each calendar quarter.
18. Subsection 2(a) of Exhibit D, In General, is amended by adding the following
----------
sentence to the provision: "To ensure HP assumes its responsibility for
providing 1/st/ and 2/nd/ level support, ClearCommerce agrees to change all
install shields, readme files and all other references in the core code to
clearly provide the appropriate HP contact information for such support."
19. 4(a) of Exhibit D, ClearCommerce Training, is amended by deleting the first
----------------------
sentence and replacing it with the following: "Upon the Effective Date of this
Amendment #2 and for the Initial Term and any Renewal Term, ClearCommerce will
provide, at no charge, to the HP response center engineers identified by HP, 15
days worth of initial training (minimum 5 people per training class) on the
ClearCommerce Programs to enable HP to deliver HP Support to Customers plus an
additional 5 days of training for each new Version or Major or Minor Release
(defined in subsection j below), at CCC's Austin facility."
20. Subsection 4(b), Right to Copy Education Materials, is deleted.
---------------------------------
21. All other terms and conditions of the Agreement (as amended) remain in full
force and effect except as modified by this Amendment #2. The parties agree that
this Amendment #2 shall take effect upon the date of the execution by HP's duly
authorized representative below.
Agreed:
HEWLETT-PACKARD COMPANY CLEARCOMMERCE CORPORATION
By: _____________________________ By: _____________________________
Print Name: _______________________ Print Name: ______________________
Title: _____________________________ Title: ___________________________
Date: _____________________________ Date: ___________________________
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
9
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EXHIBIT 10.7
LICENSE AND SERVICE AGREEMENT
THIS LICENSE AND SERVICE AGREEMENT ("Agreement") is entered into as of the
date set forth below between ClearCommerce CORPORATION, a Delaware corporation
("CCC"), and the undersigned customer ("Customer").
1. Purpose of Agreement. CCC licenses and provides proprietary software
--------------------
products that enable a merchant to operate an Internet storefront at which the
merchant's customers may effect payment transactions for the online purchase of
the merchant's products or services. Pursuant to this Agreement, CCC is granting
Customer a license to use the object code versions of the Hosting Engine
software product indicated on the Product and Pricing Schedule attached to this
Agreement ("Licensed Products") and to engage in sublicensing and service bureau
activities with respect to other CCC software as described in Attachment A.
2. License. CCC grants to Customer a [*] to use the Licensed Products
-------
solely on computer equipment owned by or leased to Customer and solely for the
purpose of enabling Customer to enable Customer's clients ("Merchants") to sell
their merchandise or services using other CCC software products (as described in
Attachment A) in each Merchant's own account (the "License"). At no time shall
Customer have any marketing, resale or licensing rights to Licensed Products,
except as expressly provided in Attachment A, and if this restriction on
Customer rights afforded in this Agreement should conflict with any
interpretation of this Agreement, this restriction shall prevail. Customer will
operate Licensed Products only for itself on a service bureau basis, thus
offering World Wide Web bank card transaction services only to Merchants which
have licensed one of the Licensed Products under terms described in Attachment
A. Customer shall not use, or permit Merchants to use, the Licensed Products to
engage, directly or indirectly, in the offering or "factoring" of products or
services for the account of third parties. Customer may make one copy of the
Licensed Products solely for backup or archival purposes. The License shall
include Customer's right to use, but not duplicate, CCC software and end-user
documentation provided by CCC, except as expressly provided in Attachment A.
Neither the License nor any Licensed Products shall be transferable to any third
party by Customer. The term of the License shall continue until termination or
expiration of this Agreement. [*].
3. Initial Support Services. For a period of ninety (90) days following
------------------------
the date of this Agreement, CCC shall provide, [*] and from CCC's location,
reasonable assistance related to installation, configuration and operation of
the Licensed Products (excluding, for example, assistance related to computer
operating systems, hardware, software or other products or services if not
otherwise provided by CCC). Any support services requested after such 90 day
period shall be provided by CCC as per Product Support Services (as defined in
Section 4).
4. Product Support Services. Customer shall be entitled to receive
------------------------
further support services ("Product Support Services") as follows: (a) new
versions of the Licensed Products as developed and generally made available by
CCC: (b) corrections to reported and documented errors in the Licensed Products
and updates to the Licensed Products, as prioritized and scheduled by CCC; and
(c) telephone help desk support provided during business hours designated by
CCC. Product Support Services specifically excludes reissuing of licenses for
the License Products resultant from the reconfiguration of information with
respect to Merchant's bank card processing account which CCC shall update for a
nominal fee according to CCC's then-current standard prices. Product Support
Services shall begin at the end of the 90 day period described in Section 3 and
shall continue on an annual basis thereafter until cancelled by either party.
Customer shall be invoiced for Product Support Services in advance on an annual
basis. If Product Support Services are requested at any time subsequent to the
date of this Agreement or a request for reinstatement of Product Support
Services is made after the Initial Term of this Agreement, the initiation or
reinstatement of the Product Support Services shall be subject to CCC's then
current standard policies and prices. CCC will only respond to Product Support
requests that are sent via the Internet to [email protected].
5. Term of Agreement. The Term of this Agreement shall begin upon
-----------------
execution of this Agreement by CCC and Customer and shall continue for the
Initial Term set forth in the Product and Pricing Schedule ("Initial Term"). The
term of this Agreement shall continue to renew automatically following
expiration of the Initial Term for periods of time equal to that of the Initial
Term unless either CCC or Customer notifies the other party in writing at least
ninety (90) days prior to expiration of the Initial Term or any renewal term of
its election not to renew the term of this Agreement. The term of the Product
Support Services shall continue to renew automatically on an annual basis
following expiration of the initial annual term unless either CCC or Customer
notifies the other party in writing at least ninety (90) days prior to
expiration of the initial annual term or any renewal term of its election not to
renew the term of this Agreement.
6. Termination. Either party may terminate this Agreement upon the
-----------
material breach of this Agreement by the other party (including failure to
timely pay amounts due hereunder) and failure of the breaching party to cure
such breach within thirty (30) days following its receipt of written notice of
such breach from the other party. Upon termination or expiration of this
Agreement for any reason, Customer shall return to CCC all CCC software,
documentation and related materials.
7. Payment Terms. In consideration of CCC's grant of the License and
-------------
the related services to be provided by CCC under this Agreement. Customer shall
pay CCC the fees set forth in the Product and Pricing Schedule and also
Attachment A, attached to this Agreement. All fees shall be due, if not
otherwise specified, within thirty (30) days of invoice date unless CCC has
breached this agreement. If any fees are not paid when due, CCC may, in its
discretion suspend provision of any services under this Agreement. All License
fees and other payments provided for in this Agreement are exclusive of all
state, local and other taxes or other charges (other than income or franchise
taxes payable by CCC) applicable to the licensing, installation, support or use
of the Licensed Products or the services provided pursuant to this Agreement,
and Customer shall pay any such taxes or charges within thirty (30) days of
invoice date. All amounts due to CCC not paid when due shall bear interest at
the lesser of 1.5% per month or the maximum allowable rate of interest under
applicable law.
8. Limited Warranty. CCC warrants that the Licensed Products will perform
----------------
substantially in accordance with the then current operating documentation for
the Licensed Products for a period of ninety (90) days from the date of
installation, provided that: (a) the Licensed Products are installed on computer
equipment with specifications approved by CCC and the computer equipment is in
good operating order and is installed in a suitable operating environment: (b)
the error or defect in the Licensed Products is not caused by Customer, its
contractors or another third party: (c) Customer promptly notifies CCC of the
error or defect after it is discovered: (d) any amounts due and payable to CCC
by Customer have been paid: and (e) only the most recent version of the Licensed
Products are installed. THERE ARE NO OTHER WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, THE LICENSED PRODUCTS OR ANY
SERVICES PROVIDED BY CCC TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. The Customer will not be charged for any
warranty work performed.
<TABLE>
<S> <C>
Agreed and accepted: CCC: /s/ [ILLEGIBLE] Customer: /s/ [ILLEGIBLE] (initial)
------------------ ------------------
</TABLE>
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
-1-
<PAGE>
9. Remedies; Limitation or Liability. Customer's sole and exclusive
---------------------------------
remedy and CCC's only obligation in the event of any breach of the warranty set
forth in Section 8 shall be to use its commercially reasonable efforts to make
such corrections and modifications necessary to the Licensed Products to cause
the Licensed Products to operate substantially in accordance with the then
current operating documentation for the Licensed Products. In the event of any
breach of warranty or other breach of this Agreement by CCC. CCC shall have no
liability for any loss, cost, expense or damage to Customer in an amount
exceeding the amounts paid by Customer to CCC for the Licensed Products or other
services provided by CCC for the month preceding the month in which any claim
for such loss, cost, expense or damage is asserted by Customer or an aggregate
amount not to exceed $100,000 whichever is greater. CCC shall not be liable for
indirect, incidental, punitive, exemplary, special or consequential damages of
any kind whatsoever, including lost profits, sustained or alleged to have been
sustained by Customer, including, without limitation, indirect, incidental,
punitive, exemplary, special or consequential damages resulting from any claim
made by Customer or against Customer by any other party, including claims by any
merchant, payment card issuer, membership association, processor or agent bank,
even if CCC has been advised of the claim or potential claim. Customer retains
responsibility for compliance with all rules and regulations related to
issuance, acceptance, and settlement and clearing of payment transactions.
Customer shall indemnify, hold harmless and defend CCC against any claim,
demand, loss or action resulting from Customer's possession or use of the
Licensed Products. Any action by Customer for breach of this Agreement or
warranty must be brought within one (1) year after the cause of action has
accrued.
10. Proprietary Rights. Except as set forth in Section 16, Customer
------------------
acknowledges that: (a) the Licensed Products and also the CCC products in
Attachment A, together with any other documentation and materials supplied by
CCC, are the property of CCC and remain so even after delivery to Customer; (b)
the Licensed Products, together with any other documentation and materials
supplied by CCC, are confidential and proprietary trade secrets of CCC,
protected by law and of substantial value to CCC, and their use and disclosure
must be carefully and continuously controlled; and (c) the Licensed Products are
protected by the copyright laws of the United States. Customer shall implement
all reasonable safeguards to protect CCC intellectual property and shall not,
directly or indirectly, or knowingly permit others to: copy, duplicate, gain
access to or furnish to others any physical, magnetic or electronic version of
the Licensed Products; remove any copyright or other notice contained or
included in any material provided by CCC; create or attempt to create the source
computer programs or any part of them from the object code version of the
Licensed Products; change or modify the Licensed Products or create derivative
works from them; or reverse engineer or attempt to reverse engineer the Licensed
Products. Customer shall notify CCC immediately of the unauthorized possession,
use or knowledge of any item supplied to Customer pursuant to this Agreement. In
the event of any breach of this Section 10, CCC shall have the right, in
addition to such other remedies that may be available to it, to injunctive
relief enjoining such breach or attempted breach, it being acknowledged that
legal remedies are inadequate. The provisions of this Section 10 shall survive
any termination or expiration of this Agreement.
11. Arbitration. Any controversy or claim between CCC and Customer arising
-----------
out of, or relating to, this Agreement or its performance or breach, but
excluding actions for injunctive relief pursuant to Section 12, shall be settled
by arbitration in Los Angeles, California in accordance with the Commercial
Arbitration Rules of the American Arbitration Association; and judgment entered
upon the award by the arbitrator may be entered in any court having jurisdiction
thereof. The prevailing party in any arbitration shall be entitled to
reimbursement from the other party of its fees, costs and expenses incurred in
the arbitration. Texas rules of discovery shall apply during this arbitration.
12. Applicable Law. This Agreement shall be governed by the laws of the
--------------
State of Texas other than the conflicts of law principles thereof.
13. Force Majeure. CCC shall have no liability and shall not be deemed in
-------------
breach of this Agreement or the License in the event any act or omission is the
result of any event beyond the reasonable control of CCC, including without
limitation, equipment failure or natural disasters.
14. Severability. Any invalidity, in whole or in part of any provision of
------------
this Agreement shall not affect the validity of any other of its provisions.
15. Notices. All notices required or permitted to be given hereunder by
-------
either party hereto shall be in writing and shall be deemed to have been duly
given when delivered, when sent by facsimile transmission if receipt of same is
confirmed by hard copy report, or five (5) days after deposited in the United
States mail, first class certified mail, postage prepaid, return receipt
requested, to the party for which intended at the respective addresses set forth
in the Products and Pricing Schedule attached hereto (or at such other addresses
as shall be specified by the parties by like notice)
16. Intellectual Property Rights. This Section describes the
----------------------------
intellectual property rights deriving from the development of an Internet
electronic commerce product known as "CyberPoint". This software product,
CyberPoint will be created as two components: the server component and the
client component.
Server Component
The Server component implementation of the CyberPoint product includes
modifications to the ClearCommerce Hosting Engine product. The modifications
may include but are not limited to the following existing Hosting Engine
components: Server interface, Reports, Payment, Fraud, ESD, Database interface,
Payment handler, Shipping, Taxes, Transaction recovery, fulfillment house API,
security, encryption, etc.
These modifications and all associated elements of the ClearCommerce Hosting
Engine remain wholly and solely the intellectual property of ClearCommerce.
Client Component
The CyberPoint product further includes development of a client side work
product. This work product will provide a Graphical User Interface (GUI) for a
merchant input device interfaced with the server component of the Hosting
Engine. The client side components are described as those which derive from a
ClearCommerce development project. The Parties agree that the CyberPoint product
and any derivative products will only be interfaced to the ClearCommerce Hosting
Engine Server component.
Development includes but is not limited to the following items:
. New user interface pages
. Password management
. Integrated installation with CSI merchant set up
[*]
<TABLE>
<S> <C> <C>
Agreed and accepted: CCC: /s/ [ILLEGIBLE] Customer: /s/ [ILLEGIBLE] (initial)
------------------ -----------------
</TABLE>
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
-2-
<PAGE>
[*]
18. Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties hereto concerning the subject matter hereof and supersedes
all prior agreements and understandings, both written and oral, between the
parties with respect to such subject matter.
19. Assignment. Neither the License, this Agreement nor any rights or
----------
responsibilities of Customer hereunder may be assigned or delegated to any third
party without the prior written consent of CCC, which will not be unreasonably
withheld.
20. Amendment. This Agreement may not be amended or modified in any
---------
respect except by written amendment signed by both parties.
21. Waiver. Any term or condition of this Agreement may be waived at any
------
time by a party hereto which is entitled to the benefit thereof, but such waiver
shall only be effective if evidenced by a writing signed by such party. A waiver
on one occasion shall not be deemed to be a waiver of the same or any other type
of breach on a future occasion. No failure or delay by a party hereto in
exercising any right or power hereunder shall operate as a waiver thereof.
22. Publicity. CCC shall be permitted to include Customer's name in CCC's
---------
customer list and, with Customer's prior approval not to be unreasonably
withheld, to use Customer's name and logo in CCC's marketing materials. Customer
will participate in not less than one press release at CCC's expense. Customer
agrees to be a standing client reference for CCC.
23. Non Hire. Neither party shall hire or attempt to hire any employee of
--------
the other party (or any person who was employed by the party within six months
prior to the date the other party would otherwise hire such person) during the
term of this Agreement and for a period of one (1) year after expiration or any
termination of this Agreement.
24. Audit Rights. CCC shall have the right, at its sole cost and expense,
------------
to have an audit conducted during normal business hours and not more frequently
than annually, an audit of the Licensed Products to verify that with the sole
exceptions of the integration of the products in Attachment A, and the operation
of essential web server hardware and software, no form of integration of the
Licensed Products with any other, without limitation, software or hardware
systems has occurred. If an audit discovers otherwise, this shall constitute a
material breach of this Agreement by Customer.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
30 day of June, 1998.
CLEARCOMMERCE CORPORATION CUSTOMER: CARDSERVICE INTERNATIONAL
BY: /s/ [ILLEGIBLE] BY: /s/ [ILLEGIBLE]
------------------------------- -----------------------------------
TITLE: President & CEO TITLE: S. Vice President
---------------------------- --------------------------------
Agreement is valid only if signed by CCC may refuse to execute any Agreement
an officer of CCC. not duly signed and returned to CCC
within 30 days of the date issued by
Notices and payments to CCC should be CCC.
sent to: ClearCommerce Corporation.
Attention CFO Notices to Customer will be sent to the
location given in the Product and
9101 Burnet Rd., Suite #207, Pricing Schedule unless otherwise
Austin, TX 78758 USA specified by the Customer in writing.
Voice: (512) 832-0132;
Fax:(512)832-8901;
Email: [email protected]
<TABLE>
<S> <C>
Agreed and accepted: CCC: /s/ [ILLEGIBLE] Customer: /s/ [ILLEGIBLE] (initial)
------------------ ------------------
</TABLE>
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
-3-
<PAGE>
PRODUCT AND PRICING SCHEDULE
CUSTOMER INFORMATION
Company Name Cardservice International Fed. Tax ID#_____________________
Company Physical Address, Phone and Fax Numbers, Email Address and Web Site URL:
Address: 26775 Malibu Hills Road Phone/Fax:
City/State/Zip: Agoura Hills, CA 91301 Email:
Web Site URL
Company Billing Address (if different): Contact Information:
Address 1____________________________ General Business/Sales:
Address 2____________________________ Accounting/Administrative______________
City/State/Zip_______________________ Technical______________________________
LICENSE AND SERVICE INFORMATION
Initial Term of Agreement: [*] CCC Contact: Craig Winterhalder
Software Products Licensed:
Hosting Engine license fee is [*]. Hosting Engine consists of software running
on a Sun Solaris platform Rel 2.6, Oracle Data Base Rel 8.0, that: accepts
transaction from any of Customer's Internet merchants (when transaction are able
to be received by the Hosting Engine) who are using one of the software products
in Attachment A; routes bankcard transaction to First Data Merchant Services
(FDMS); on-line reporting, digital content delivery (storefront products
allowing), email receipt to the merchant and consumer (storefront products
allowing), fraud protection; SSL security is provided when used in conjunction
with the CCC Hosting Engine Store Front SSL API, or with browser security when
using the CyberPoint or HTML Wrapper licensed products. With the sole exception
of the products in Attachment A, and the operation of essential web server
hardware and software, this agreement does not permit any form of integration of
the Licensed products with any other, without limitation, software or hardware
systems.
The Hosting Engine also allows for one (1) fulfillment house API per merchant.
For the purposes of this agreement, the Hosting Engine can only be used to route
transactions to FDMS Nashville using a lease line.
Product Support Services
Product Support Services for Hosting Engine as defined in Section 4 is [*]
during the first term and also includes monthly update of tax table.
Licensed Products:
CCC will operate Licensed Product on a 7 by 24 basis for [*] routed to FDMS via
leased line supplied by Customer or FDMS. The term of this service is for a
minimum term of [*]. Customer to supply required estimated Hardware and Software
for [*] CyberPoint Users, and [*] storefront SSL API users. The estimated
cost of the Hardware is [*] plus the cost of the Oracle DB license as specified
by CCC. Hardware for additional merchants will be supplied by Customer. CCC will
use CCC's current FDMS lease line to Nashville until volume no longer permits.
Additional lease line capacity to be the responsibility of Customer. In
addition, Customer will provide dial-up or lease lines as required for ACH and
check guarantee. After the initial one year term, CCC will install the Licensed
Products at the Customer's location upon 90 days written notice that the
Customer wants to bring the Licensed Product in-house. Customer agrees to pay
CCC a mutually agreed to fee for technical assistance in transitioning of the
Licensed Products from CCC to the Customer location and the new hosting system
must be on a platform then support by CCC.
CyberPoint Development: CCC will develop a product described in Attachment B
(Software requirements documentation - CyberPoint) for: [*]. The detailed
project schedule for development of this product is in Attachment C (CyberPoint-
Project Schedule). The above estimate is based on the original information
supplied by CSI. Included in the above price is the effort to interface into the
current CSI ACH and check verification system based on specifications supplied
by CSI. It is further agreed that additional information is required on ACH and
check verification, to be delivered within [*] of contract signing by CSI
working with CCC. If it is mutually agreed by CSI and CCC that the new
specifications exceed the original estimate, additional development cost may be
incurred by CSI.
HTML Wrapper Development: CCC will develop a product described in Attachment E
(Software requirements documentation-HTML Wrapper) for: [*]. The detailed
project schedule for development of this product is in Attachment F (HTML
Wrapper-Project Schedule).
INCENTIVES AND CREDITS FOR CYBERPOINT DEVELOPMENT: For each day (after a grace
period of 10% of the project deliverable schedule Attachment C) that CCC has not
delivered the CyberPoint product to CSI, CCC will be liable for a [*] credit fee
against future billings for each day the CyberPoint deliverable is not meet. The
credit will be on a phase by phase basis. This assumes that there was no change
in the scope of the project and that such delays were not caused by an event
beyond CCC's reasonable control or CSI's failure to respond within 2 business
days to request made for additional information or sign off on various design
and development documents. The credit would be based on the amount CSI has
contracted with CCC for each phase of the CyberPoint product development. For
example: if the project schedule was for 10 weeks, the grace period would be 1
week, and the penalties would be based on the contracted price to CSI for that
phase only.
Agreed and accepted: CCC:_____________ Customer: _________(Initial)
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
3
<PAGE>
For each day that CCC is able to improve upon the agreed to delivery date
(Attachment C), CSI will pay an early delivery incentive payment of 1% of the
development cost based on a phase by phase basis. There will be no incentive
payments due if the Phase is delivered early and within a window that is 10%
less than the delivery schedule.
Based on a 6/22 start date:
Credits
- -------
CyberPoint Development Completion Grace Credit Credit Per
Date Date Start [*]
Phase 1 9/3 9/10 9/11
Phase 2 11/24 1/2 1/3
Phase 3 2/25 3/4 3/5
Incentives
- ----------
CyberPoint Development Completion Grace Incentives Incentives
Date Date Start Per Day
Phase 1 9/3 8/27 8/26 [*]
Phase 2 11/24 11/17 11/16
Phase 3 2/25 2/18 2/17
Enhancement Requests: If CSI requests in writing enhancements to the products
listed on Attachment A, CCC agrees that CCC will: supply CSI with a price quote
for the requested enhancements and a date when those enhancements would be
delivered, CCC will agree to make enhancements to the products at a charge of
[*] for features that CCC has planned for future enhancements to CCC's products.
For product enhancement request that are CSI specific, CCC would charge [*].
Additional Contract Terms:
. CCC will allow CSI to bring up merchants on CCC's current hardware for a
reasonable amount of time (estimated to be 120 days) while CSI supplies the
required Hardware and Software for the CSI hosting system. It is estimated
that with CCC's current capacity we could support up to [*] CSI Merchants.
. CSI will do all customers billing. CCC to bill CSI.
. ALL 1st call support is the responsibility of CSI. 1st Call installation
support for the Store Front SSL API and HTML wrapper will be a [*].
. The CyberPoint, Storefront SSL API, HTML Wrapper and StoreManager Plus
licenses are not transferable and each new merchant is required to license a
copy of the software.
. CSI will be responsible for end-user license agreements which need to be
approved by CCC. CCC will work with CSI to automate this.
. CCC will conduct 22 day training classes at CCC's location at no charge
. CCC will work with CSI to develop an "end-user" license agreement, mutually
agreeable to both parties within 3 weeks from contract signing to replace
Schedule B
Payment Terms: Hosting Engine: [*] of License Fee upon execution of this
Agreement and [*] of delivery and acceptance of Licensed Products. Installation
of Licensed products shall be no later than 60 days after delivery unless sole
fault of delay is related to CCC. Based on a June 30, 1998 contract signing: [*]
on contract signing, [*].
Hosting Engine Support and Upgrade: [*] due 90 days from installation of the
licensed product, and [*] due 180 days from installation. The 2nd year support
and upgrade fee will be due 12 months from the second payment date. This in
effect gives CSI a 15 month initial support and upgrade window.
CyberPoint Development: payment due in advance on a month to month basis for
work scheduled to be completed that month on a phase by phase basis. Based on
the current schedule: Phase 1: [*] on contract signing [*] in July 1998, [*] in
August 1998 Phase 2: [*] in September 1998, [*] in October 1998, [*] in November
1998, Phase 3: [*] in Dec. 1998, [*] in Jan. 1998, [*] in Feb. 1998.
HTML Wrapper Development: payment due in advance on a month to month basis for
work scheduled to be completed. Based on the current schedule: [*] in June 1998,
[*] in July 1998 and [*] in August 1998.
CyberPoint, HTML Wrapper, and Storefront SSL API licenses: license prepayment of
[*] for [*] licenses of which a minimum of [*] will be for the Storefront SSL
API, and [*] for CyberPoint and/or HTML licenses. Payments will be made as
follows: [*] on contract signing, [*] in July 1998, [*] in August 1998, [*] in
September 1998, [*] in October 1998.
Shipping Schedule: Hosting Engine will be shipped in June 1998: Quantity [*]
Storefront SSL API licenses will ship in June 1998. Based on the current
development schedule: Quantity [*] CyberPoint licenses will be shipped in August
1998: Quantity [*] HTML Wrapper licenses will be shipped in August 1998. A
single copy of the Storefront SSL API, HTML Wrapper, and CyberPoint licenses
will be shipped on separate CD's with CSI having the right to duplicate the
software for the number of licenses licensed.
CSI will have the right to exchange the HTML licenses for CyberPoint licenses on
a one for one basis.
Agreed and accepted: CCC:_____________ Customer:____________(initial)
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
4
<PAGE>
EXHIBIT 10.7.1
[LETTERHEAD OF CLEARCOMMERCE]
December 31, 1998
Mr. Bruce Shirey
Vice President- InternetSolutions
Card Services International
4227 Sunrise Blvd, Suite 200
Fair Oaks, CA 95628
Subject: License Agreement Addendum A- Extension of exclusivity and additional
product purchases
Dear Bruce:
During our meeting of December 15-16/th/ and conference call today, we discussed
CSI's desire for [*]. The following are the terms and scope of what was agreed
upon, with this document becoming an addendum to the above agreements between
CSI and ClearCommerce upon your signature below.
In addition, for an order placed by Dec. 31, 1998 for [*], CCC has agreed to the
following:
. CSI has the right to order additional SSL API or CyberPoint (Virtual
LinkPoint) [*]. Based on [*] licenses this could result in savings to CSI
of [*].
. [*]
. [*]
[*]
The following supercedes Section 17 of the License and Service Agreement:
[*]
A. CSI and CCC agree that [*] does Include:
[*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
<PAGE>
[LOGO OF CLEARCOMMERCE]
B. CSI and CCC agree that [*] does not Include:
[*]
[*]
CCC may include the CyberPoint product and new enhancements in bids to
ClearCommerce prospective customers during the exclusivity period with CSI's
prior written approval to each specific prospect. Any derivative thereof, and/or
any new functionality can only be interfaced to a CCC Hosting Engine, and must
include a per copy license fee paid to CCC as referenced in this CSI/CCC
agreement.
License Purchases
- -----------------
On Page 5 of the License Agreement, the second page of the Product and Pricing
Schedule, add the following paragraph to the Payment Terms section:
"CyberPoint, HTML Wrapper, and Storefront SSL API licenses: CSI will purchase
additional [*]
Contract Terms
- --------------
The terms and conditions of this letter are hereby incorporated into the License
and Service Agreement and Its attachments ("License Agreement"), executed June
30, 1998, and become an addendum to the License Agreement ("Addendum A"). The
terms of the License Agreement hereby apply to this Addendum A upon execution by
CSI. Any terms specified herein that Conflict with the terms of the License
Agreement shall supersede the terms in the License Agreement, including the
attachments. This Addendum A only applies to those products specified herein and
to the extent noted.
This proposal for Addendum A by ClearCommerce is valid until December 31, 1998
and must be executed by CSI by that date. CSI's signature below will represent
CSI acceptance of these terms and order for the [*] SSL API, CyberPoint
(Virtual LinkPoint) licenses.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
<PAGE>
Execution of this contract addendum by the parties signifies the agreement of
the parties to the terms set forth herein with an execution of the last
signature below.
ClearCommerce Corporation Cardservice International
- ------------------------- -------------------------
BY: /s/ [ILLEGIBLE] BY: /s/ Caesar Bergen
---------------------------- ----------------------------
PRINTED NAME: [ILLEGIBLE] PRINTED NAME: Caesar Bergen
------------------ ------------------
TITLE: Vice President, CFO TITLE: Senior Vice President
------------------------- -------------------------
DATE: 12/31/98 DATE: 12.31.98
-------------------------- --------------------------
<PAGE>
EXHIBIT 10.7.2
1 Engagement Letter
March 5, 1999
Mr. Bruce Shirey
Cardservice International
4227 Sunrise Blvd.
Fair Oaks, CA 95628
Re: Engagement Letter (EL) - License Agreement Addendum B
Dear Bruce,
We are pleased to have the opportunity to provide our services to
Cardservice International. This letter will document our agreement
regarding the development of electronic check processing capability
for Virtual LinkPoint and LinkPoint HTML.
Scope of Services
Beginning on February 8th, 1999, ClearCommerce Corp. initiated
development of electronic check processing capabilities for both the
Virtual LinkPoint and LinkPoint HTML products along with other system
components developed previously for Cardservice International (CSI) by
ClearCommerce Corp. (CCC). Attachment A, Software Requirements
Specification, documents the specifications for electronic check
processing.
The implementation plan for developing electronic check capabilities
is described in Attachment B, CSI Check Processing Implementation
Plan.
Attachment A and B together comprise the Scope of Services.
Any change in the specified Scope of Services must be mutually agreed
upon by the parties in writing. ClearCommerce consent should be
obtained if any change in Cardservice requirements, software or
hardware will affect ClearCommerce's estimates. Cardservice agrees to
pay for any unauthorized changes which affect estimates.
Terms and Conditions
These Services will be provided at the agreed rates stated in the
License and Service Agreement between ClearCommerce Corp. and
Cardservice's International signed on June 30/th/, 1998. Specifically,
for features that CCC has planned for future enhancements to CCC's
products, Cardservice will be billed at a rate of [*].
As discussed in Section 3.4 of this proposal, the estimated
development effort for check processing is [*]. Based on the rates
discussed above, the estimated cost of developing electronic check
processing capability is [*], plus out-of-pocket expenses. Since
approximately [*] of the development of electronic check processing
(see Section 2, Background, for details), the estimated cost of
developing check processing as currently defined will be reduced by
that amount, resulting in net estimated cost of [*], plus out-of-
pocket expenses.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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This check processing feature is [*] in the License Agreement
Addendum A, dated December 31, 1998 per Section B.3. of that Addendum.
The Services specified above are provided [*]. The estimate provided
above is to be used for your budgeting and ClearCommerce's resource
scheduling purposes.
The terms and conditions of this Engagement Letter (License Agreement
Addendum B) are hereby incorporated into the License and Service
agreement and its attachments ("License Agreement"), executed June 30,
1998, and becomes an addendum to the License Agreement. The terms of
the License Agreement hereby apply to this Addendum B upon execution
by CSI. Any terms specified herein that conflict with the terms of the
License Agreement shall supersede the terms of the License Agreement,
including the attachments. This Addendum B only applies to those
products specified herein and to the extent noted.
Should you have any questions or concerns about our proposal, please
call me at (512) 977-5615.
Sincerely,
Johnny L. King
Vice President
Professional Services
Execution of this Engagement Letter by the parties signifies the
agreement of the parties to the terms set forth herein, with an
execution date of the last signature below.
CLEARCOMMERCE CORPORATION Cardservice International
BY:_________________________ BY:_________________________
PRINTED PRINTED
NAME:_______________________ NAME:_______________________
TITLE:______________________ TITLE:______________________
DATE:_______________________ DATE:_______________________
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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EXHIBIT 10.7.3
ADDENDUM C
TO THE
LICENSE AND SERVICE AGREEMENT
BY AND BETWEEN CARDSERVICE INTERNATIONAL
AND CLEARCOMMERCE CORPORATION
DATED JUNE 30, 1998
WHEREAS, Cardservice International, Inc. ("CSI") and ClearCommerce Corporation
("CCC") have entered into a License and Service Agreement dated June 30, 1998
(the "Agreement"), a first amendment in a letter form identified as "Addendum
A", dated December 31, 1998, and a second amendment identified as "Addendum B"
on March 5, 1999; AND
WHEREAS, CSI and CCC desire to amend the Agreement, as amended by Addendum A and
B, with this Addendum C;
NOW THEREFORE, in consideration of the mutual covenants contained herein, CSI,
and its wholly owned subsidiary LinkPoint International, Inc. ("Customer") and
CCC hereby agree to amend the Agreement, as amended by Addendum A and B, as
follows:
1) Section 2. Delete the last sentence and replace that sentence with the
---------
following:
"During a period of [*] after the Effective Date of this Addendum C, Customer
shall [*] market and promote all current and future CCC products ("CCC
Products") and shall [*] the Licensed Products for i) [*] of Customer's internet
merchants, including all direct internet merchants and all indirect internet
merchants of Customer that are served through third parties [*], but excluding
internet merchants or their affiliated third party gateway operators [*] where
such excluded internet merchants and gateway operators only receive merchant
accounts (including merchant IDs) from CSI and where (a) Customer makes a good
faith effort to convert such excluded internet merchants and gateway operators
to the Customer's gateway, or (b) Customer makes a good faith effort to actively
promote and market CCC Products to such excluded internet merchants and gateway
operators, ("Merchants"); ii) [*] Merchants that use the Customer's gateway, as
measured on a quarterly basis, meaning that Customer will not utilize gateway
technology other than from CCC for the duration of the above mentioned [*].
Customer hereby grants to CCC a right of first refusal to have the Licensed
Products and the CCC Products used by Customer under the terms of this Agreement
for all new territories and markets throughout the world.
Customer agrees, during [*] period, to make available to CCC [*] (the "Customer
Data"), in a mutually agreed format. The Customer Data will be considered
Confidential Information
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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as defined and protected in the existing Non-Disclosure Agreement between the
parties. The Customer Data will be gathered and provided electronically and in
batches by Customer as requested by CCC, but not more than [*]. If desired by
CCC, technology to implement real-time access to the Customer Data on Customer's
computer systems may be implemented, at the expense of CCC.
[*] Except as described herein, Customer retains its rights, ownership and
control of the disposition of the Customer Data. Data will be used for [*]
and if CCC wants to use it for any other reason, Customer written permission
must be granted.
As compensation for providing the Customer Data to CCC, during the [*], CCC will
pay Customer a [*] received by CCC for the sale of [*]
2) Section 5. Delete the last sentence and replace with the following:
---------
"The term of the Product Support Services [*] unless either CCC or Customer
notifies the other party in writing at least [*] prior to expiration of the
Initial Term or the applicable annual Product Support Services renewal term.
However, CCC shall not unreasonably terminate renewal of the Product Support
Services."
3) Section 19. Delete entire section and replace with the following:
----------
"Neither the License, this Agreement, nor any rights or responsibilities of
Customer or any of the assets held by or on behalf of Customer relating to this
Agreement, [*] may be assigned, sold, transferred, conveyed, or delegated to any
third party without [*]. Any attempted assignment, sale, conveyance, delegation
or transfer in violation of this section shall be void."
4) Add the following new section:
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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"25. Survival. All of the provisions of this Agreement shall survive any change
--------
of control, merger, acquisition, sale, reorganization, or other corporate event
affecting either party, and all obligations hereunder shall apply to each of the
parties' subsidiaries, joint ventures, and affiliates."
5) Product and Pricing Schedule. The parties confirm that the Initial Term [*].
----------------------------
Each Party hereto represents and warrants that (i) it has obtained all necessary
approvals, consents and authorizations to enter into this Agreement and to
perform and carry out its obligations hereunder, (ii) the persons executing this
Agreement on its behalf have express authority to do so, and, in so doing, to
bind the Party thereto; (iii) the execution, delivery, and performance of this
Agreement does not violate any provision of any bylaw, charter, regulation, or
any other governing authority of the Party; and (iv) the execution, delivery and
performance of this Agreement has been duly authorized by all necessary
corporate action and this Agreement is a valid and binding obligation of such
Party, and its subsidiaries, joint ventures, and affiliates, enforceable in
accordance with its terms.
IN WITNESS WHEREOF, the parties have entered into this Addendum C to the
Agreement as of the date of the last signature below, ("Effective Date").
CSI and LinkPoint International Inc. ClearCommerce Corporation
By: /s/ CAESAR BERGER By: /s/ MICHAEL S. GRAJEDA
----------------------------- --------------------------------
Print Name: Caesar Berger Print Name: Michael S. Grajeda
------------------------
Title: Senior Vice President Title: Chief Financial Officer
-----------------------------
Date: March 6th, 2000 Date: March 6, 2000
------------------------------
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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EXHIBIT 10.7.4
ATTACHMENT A
VALUE-ADDED RESELLER LICENSE AGREEMENT
THIS AUTHORIZED VALUE-ADDED RESELLER LICENSE AGREEMENT ("Agreement") is
entered into as of the date set forth above the signature block to this
Agreement ("Effective Date") between CLEARCOMMERCE CORPORATION, a Delaware
corporation ("CCC"), and the value-added reseller indicated in the signature
block to this Agreement ("VAR").
WHEREAS, CCC has developed and owns the intellectual property rights,
subject to the provisions of Section 16 of the License and Service Agreement,
in and to certain computer software described in Schedule A to this Agreement
----------
("CCC Software"): and
WHEREAS, VAR desires to sell, market, distribute, install and support
computer software programs comprising the CCC Software (the "Software Product")
in accordance with the terms of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
Definitions
The following terms when used in this Agreement shall have the meanings
indicated below:
"Distributor" means a third party to which VAR grants the right to market,
license and install the Software Product.
"End User" means an entity which is granted a license by VAR or by VAR's
Distributor, acquires the Software Product for its own use, and which has no
right to license or transfer the Software Product to third parties.
"End User License Agreement" means the shrink-wrapped standard form of CCC
agreement accompanying each copy of the Software Product which specifies the
terms and conditions of the license to use the Software Product granted by CCC
and VAR to the End User, a copy of such form being attached as Schedule B to
----------
this Agreement.
"CCC Software" means one or more proprietary CCC software programs
described in Schedule A to this Agreement, each of which includes: (a) the
----------
object code form of the computer programs in magnetic media; (b) User
Documentation, if applicable, and (c) an CCC End User License Agreement.
"Software Product" means one or more proprietary CCC software programs
described in Schedule A to this Agreement which will be marketed, sold,
----------
distributed, installed and supported by VAR or its distributors.
"License" means the nontransferable right, granted by VAR or its
Distributor, to use one copy of the Software Product on a single central
processing unit (CPU).
"User Documentation" means the textual written materials relating to CCC
Software, if any, which CCC normally distributes to End Users of CCC Software,
and which are made available by CCC for distribution hereunder.
1. Licenses Granted
(a) CCC Software Licenses
CCC grants VAR a [*] of the CCC Software as the Software Product. CCC
grants VAR a [*] Software Product solely for the purpose of further
distribution of Software Product by Distributors to End Users in accordance
with the terms and conditions of this Agreement.
Each and every copy of the Software Product [so distributed by VAR or its
Distributors], to End Users, shall bear unique serial numbers prescribed by
CCC, and such serial number shall be embedded in and delivered as part of the
Software Product. Any [distribution by VAR of the Software Product] without CCC
serial numbers shall constitute a material breach of this Agreement and may
constitute copyright infringement.
All other rights are hereby reserved by CCC. CCC specifically reserves the
right to market CCC Software to or through any other person or entity in the
sole discretion of CCC, and VAR understands and agrees that it obtains no
exclusive rights in any geographic area, customer group, or technical market of
CCC Software except as set forth in Section 17 of the License and Service
Agreement.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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(b) VAR's Distributors and Software Product licenses
CCC grants VAR the right to appoint and license third-party Distributors,
with the right to market, promote and grant licenses for Software Product in
object code form on behalf of VAR and CCC pursuant to this Agreement. Each
Distributor authorized by VAR to license Software Product shall execute a
written agreement with VAR which requires the Distributor to so market and
license Software Product pursuant to this Agreement and approval of CCC which
will not be unreasonable withheld.
Each license granted by VAR or its Distributors for Software Product must
be the End User License Agreement.
VAR agrees to use its best efforts to enforce the obligations of its
license and Distributor agreements, and any material breach by VAR's Distributor
which VAR fails to enforce shall be considered a breach by VAR. CCC shall have
the right to enforce the terms of each Distributor and license agreement.
VAR shall use all practical means available to VAR, both technical and
contractual, to control the restricted use of each license for Software Product.
If the End User makes general use of the CCC Software which goes beyond the
intended restricted use within the Software Product, VAR or Distributor shall
terminate the end user license and all rights related thereto.
(c) User Documentation License
[*]
2. Obligations of CCC
CCC represents, warrants and guarantees to VAR as follows:
(a) End User Support Obligations
CCC will provide first level support for Store Front SSL API and HTML Wrapper
for a [*] installation assistance charge.
3. Obligations of VAR
VAR represents, warrants and guarantees to CCC as follows:
(a) End User Installation and Support Obligations
VAR will actively promote Software Products during the term of this
agreement. VAR will actively sell the annual support and upgrade agreements to
their merchants who have purchased the VAR products. VAR agrees that either VAR
or Distributor will install the Software Product and upon installation agrees
to: (i) VAR will provide the first level of support and skilled instruction to
End Users regarding the use and installation of the products, including without
limitation the CCC Software incorporated therein: and (ii) provide, using
skilled support technicians experienced in the Internet industry, technical
support and assistance to End Users which acquire the Software Product in order
to answer their questions regarding the use and operation of the Software
Product and any technical problems encountered. VAR acknowledges and agrees that
providing the service described in this section is essential to successful
marketing and promotion of CCC's Software Products. VAR will not engage in any
timesharing, rental or lease of the Software Product, or internal production use
of CCC Software. CCC and VAR acknowledge that substantial End User
dissatisfaction with Software Product can severely damage that product's
prospects and CCC's general reputation. VAR further specifically agrees that any
breach by VAR of its obligations under this Section 3 shall be deemed a material
breach of this Agreement. VAR may satisfy the End User installation and support
Obligations set forth in this Agreement by requiring the Distributors of the
Software Product to provide the services required under this Section. [*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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(b) Compliance with Law
VAR will comply, and will use its reasonable best efforts cause its
Distributors to comply with all applicable federal, state and local laws and
regulations in performing its duties hereunder and in any of its dealings with
respect to CCC Software, including but not limited to the export controls
imposed upon CCC, VAR and VAR's distributors by provisions of the U.S. Export
Administration Act of 1979, as amended.
4. Payment Order and Shipment
VAR shall be responsible for End User billing. This would include initial
store front license fees, annual support and upgrade fees, commerce and web
hosting fees, etc. CCC and VAR will agree upon a mutually acceptable monthly
invoicing and payment process between the two companies within 15 days of the
effective date of this Agreement.
Except as otherwise set forth in this Agreement, prices, discounts,
payment and credit terms, minimum order requirements and shipment terms and
conditions applicable to the order and shipment of and payment for CCC Software,
maintenance for same, and copies of Software Product shall be as specified in
Schedule C of this Agreement.
- ----------
Pricing set forth in Schedule C does not include foreign and domestic
----------
sales, use, personal property, excise or other similar taxes or export and
import taxes, duties and charges, however designated. Consequently, in addition
to the payments due hereunder, the amount of any present or future sales, use,
personal property, or other similar tax and export and import taxes, duties and
charges which become due based on the transactions contemplated by this
Agreement shall be paid directly by VAR or shall be paid to CCC upon receipt of
CCC's invoice for any such taxes paid by CCC. If VAR supplies CCC With a tax
exemption certificate acceptable to the taxing authorities which result in
abatement of the tax and refund thereof, if previously paid, then VAR shall be
similarly relieved of liability for such tax and receive a refund of any amount
previously paid to CCC on account thereof.
5. Notification and Records
VAR will notify CCC in writing of any claim or procedure involving CCC
Software no later than five (5) days after VAR learns of such claim or
proceeding. VAR will also report promptly to CCC all claimed or suspected CCC
Software defects.
CCC shall have the right to audit all of VAR's records reasonably related
to this Agreement, subject to mutual agreement by the parties to reasonable
terms of such audit, including, but not limited to nondisclosure and
confidentiality terms. An audit may be conducted on five days' notice, during
VAR's normal business hours, no more than twice each calendar year, and at CCC's
expense. However, if the audit reveals that a material breach of the terms and
conditions of this Agreement has incurred. VAR shall pay all costs of the audit.
6. Limitation of Warranty and Liability
6.1 Limited Warranty
(a) CCC warrants:
(1) that the use or distribution of unmodified CCC Software, or the
exercise of the license granted hereunder, will not violate the
intellectual property rights of any third party under copyright,
trademark or patent law of the United States:
(2) that it has full power and right to license the CCC Software and
perform all other terms of this Agreement:
(3) that it will honor the terms and conditions of the CCC End User
License Agreement:
(4) that the media on which CCC delivers the CCC Software will remain
free from defects in materials and workmanship for a period of
ninety (90) days from the receipt by the End User; and
(5) that the CCC Software when delivered will substantially conform
to the User Documentation.
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(b) EXCEPT FOR THE LIMITED WARRANTIES STATED ABOVE, VAR ACCEPTS THE VAR
SOFTWARE PROVIDED UNDER THIS AGREEMENT "AS IS," WITH ALL FAULTS AND WITHOUT
OTHER WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
6.2 Remedy for Breach of Limited Warranty
(a) VAR's sole remedy for CCC's breach of Section 5.1(a)(1) or 5.1(a)(2)
shall be: [*]
(b) VAR's sole remedy for CCC's breach of Section 5.1(a)(3), 5.1(a)(4),
and 5.1(a)(5) shall be: [*]
(c) The above remedies are subject to Sections 5.3.and 5.4 below.
6.3 Limitation of Liability
EXCEPT AS SPECIFIED IN SECTION 5.2. CCC'S LIABILITY TO VAR OR ANY OTHER
THIRD PARTY, FOR A CLAIM OF ANY KIND ARISING AS A RESULT OF, OR RELATED TO ANY
CCC SOFTWARE OR USER DOCUMENTATION PROVIDED PURSUANT TO THIS AGREEMENT, WHETHER
IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), UNDER ANY
WARRANTY, OR OTHERWISE SHALL BE LIMITED TO MONETARY DAMAGES AND THE AGGREGATE
AMOUNT THEREOF FOR ALL CLAIMS RELATING TO ANY PARTICULAR CCC SOFTWARE OR USER
DOCUMENTATION SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE CUMULATIVE LICENSE
FEES PAID TO CCC UNDER THIS AGREEMENT FOR THE 2-MONTH PERIOD PRECEDING ANY CLAIM
FOR THE PRODUCTS THAT GIVE RISE TO THE CLAIM, UNDER NO CIRCUMSTANCES SHALL CCC
BE LIABLE TO VAR OR ANY THIRD PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES (INCLUDING LOST PROFITS), EVEN IF CCC HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, OR FOR WARRANTIES GRANTED BY VAR OR ANY THIRD PARTY
IN EXCESS OF THOSE CONTAINED IN THE STANDARD CCC END USER LICENSE AGREEMENT. NO
ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT
MAY BE BROUGHT BY VAR MORE THAN TWO (2) YEARS AFTER THE EVENT WHICH GAVE RISE TO
THE CAUSE OF ACTION OCCURRED.
6.4 VAR's Indemnification
VAR shall indemnify and hold harmless CCC from all claims, losses, and
damages which may arise from:
(a) representations or misrepresentations made by VAR or VAR's
Distributors:
(b) any warranties granted in excess of those contained in the standard
End User License Agreement of the standard CCC End User License
Agreement:
(c) inadequate installation, maintenance or support by VAR or VAR's
Distributors.
(d) the marketing of the VAR Software by VAR or VAR's Distributors: or
(e) any other act or failure to act in accordance with the terms and
conditions of this Agreement by VAR or VAR's Distributors.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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7. Confidentiality and Proprietary Rights
(a) Title
Title to the CCC Software and all other products, except as set forth in
Sections 16 of the License and Service Agreement, trade secrets and other
proprietary information of CCC and all copies of all or any portion thereof, and
all proprietary rights therein and thereto, including without limitation
copyrights and trade secret rights, shall remain with CCC at all times except as
set forth in Section 16 of the License and Service Agreement.
VAR agrees, except as set forth in Section 16 of the License and Service
Agreement, the and that all tangible objects containing or relating to the CCC
Software and all copies thereof are the sole and exclusive property of CCC and
upon termination of this Agreement for any reason, VAR will forthwith return to
CCC the CCC Software User Documentation, magnetic media, instructions and all
related materials furnished to VAR hereunder and shall not retain any copies for
its use or for any purpose except as otherwise may be specifically permitted by
this Agreement.
Any altered, translated or modified version of CCC Software and all
related materials shall be deemed to be derivative works and shall be owned
exclusively by CCC, provided, however, that title to any new code added by VAR
shall vest in VAR.
(b) Notices
VAR shall not copy any CCC Software at any time for any reason except as
may be specifically permitted by this Agreement. VAR shall not remove, cover,
alter or obfuscate any copyright notices or other proprietary notices placed or
embedded by CCC on or in any CCC Software. VAR agrees not to decompile,
disassemble, or otherwise reverse engineer the object code of any CCC Software.
VAR agrees to take all reasonable measures to protect CCC's ownership
rights and interest in all copyrights, trade secrets, trademarks, service marks
and other property. VAR will promptly during the term of this Agreement and
thereafter, notify CCC of any actual or suspected unauthorized use or disclosure
of CCC Software, User Documentation, copyrights, trademarks, service marks or
trade secrets of CCC of which VAR has knowledge and will cooperate fully in the
investigation of such unauthorized use or disclosure.
In the event of a breach of any of the provisions of this Section, CCC
will not have an adequate remedy in money or damages, and accordingly shall, in
addition to any other available legal or equitable remedies, be entitled to an
injunction against such breach without any requirements to post bond as a
condition of such relief.
8. Advertising and Trademarks
During the term of this Agreement, VAR is authorized by CCC to advertise
CCC Software and related products as outline in the CCC's policies and
guidelines procedures. Advertising media is defined as packaging, product
literature, public relation campaigns, web site information, etc.
VAR's product launch for Software Product shall consist of but not be
limited to, (a) joint press releases announcing VAR and CCC's business
relationship, agreed upon by both parties and released not later than 30 days
after contract signing unless agreed to in writing by CCC, (b) posting of CCC
Software Product description and marketing information in relevant product and
partner areas of VAR's Web site within 30 days of contract signing (c) inclusion
of CCC Software Product information in VAR's printed sales support materials and
sales presentations, and (d) other marketing and co-marketing programs as agreed
to by VAR and CCC, and VAR agrees to use CCC's positioning of Software Product
to differentiate CCC from other companies who VAR may establish a relationship
with.
VAR would be responsible for the packaging and distribution of the VAR co-
branded products. This would include: modification of the standard proposal
material and user manuals to be VAR branded, and the production of diskettes
with VAR labeling. All products could be downloaded if VAR chooses.
VAR shall have the right to use CCC trademarks solely for the purposes and
in the context of identifying the origin of CCC Software. CCC retains the right
to reasonably disapprove any materials which make use of CCC trademarks that VAR
proposes to use in marketing the Software Product.
VAR agrees, with respect to the Trademark "ClearCommerce Corporation",
and the ClearCommerce logo, or trademarks and logos designated as superceding,
"ClearCommerce Corporations" and the ClearCommerce logo by CCC, to including in
each advertisement, brochure, or other such use the trademark symbol "(TM)" and
the following statement:
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"ClearCommerce Corporation" and the ClearCommerce logo are registered
trademarks of ClearCommerce Corporation, Austin, Texas.
In the event that RSA or other branded embedded code is utilized, they
require that their logo, including type set requirements, also appear on the
Software Product, packaging and marketing materials.
VAR shall not market the Software Product in any way which implies that
CCC Software is the proprietary product of VAR or of any party other than CCC.
The Software Products shall in all cases be "co-branded" to include attribution
of the CCC Software to CCC. The form or such attribution shall be approved by
CCC in advance.
Upon expiration or termination of this Agreement, VAR will cease all
display, advertising and use of all CCC names, marks and logos and will not
thereafter use, advertise or display any name, mark or logo which is, or any
part of which is, similar to or confusing with any such designation associated
with CCC Software.
9. Term and Termination
(a) Term
This Agreement shall be effective on the date it is accepted by CCC as
indicated on the signature page and shall be a [*] Agreement.
(b) Termination
Either party may terminate this Agreement upon the material breach of this
Agreement by the other party (including failure to timely pay amounts due
hereunder) and failure of the breaching party to cure such breach within thirty
(30) days following its receipt of written notice of such breach from the other
party. Upon termination or expiration of this Agreement for any reason. Customer
shall return to CCC all CCC software, documentation and related materials. CCC
may terminate this Agreement immediately upon notice for any violation by VAR of
Sections 5 (Limitation of Warranty and Liability) and 6 (Confidentiality and
Proprietary Rights).
(c) Automatic Termination
This Agreement terminates automatically with no further action by either
party in the event that either party becomes insolvent or voluntarily or
involuntarily bankrupt or is unable to meet its obligations when they become
due, or if a receiver or other liquidating officer is appointed for
substantially all of the assets or business of such party, or if such party
makes an assignment for the benefit of creditors, or if VAR is liquidated or
dissolved. In no event shall this Agreement or any rights or privileges
hereunder be an asset under any bankruptcy, insolvency or reorganization
proceedings.
(d) Orders after Termination
In the event that any notice or termination of this Agreement is given,
CCC may reject in whole or in part any orders received from VAR after notice but
in no event, after the effective date of termination.
(e) Effect of Termination
(1) All license and other rights granted by CCC shall become null and
void upon the termination of this Agreement, regardless of the
reason for termination, except: (a) for the End User licenses for
CCC Software previously distributed by VAR or VAR's Distributors,
or (b) for a limited license to VAR to use the CCC Software for
the sole purpose of fulfilling any contractual obligations for
maintenance and support services to End Users.
(2) The right to distribute CCC Software already in VAR's inventory
or in transit as of the effective date of the termination, shall
cease on the earlier of: (a) ninety days after the effective date
of termination, or (b) distribution by VAR of the last copy of
CCC Software to a third party. All CCC Software remaining in
VAR's inventory after such ninety day period shall be returned to
CCC. Alternatively, upon CCC's written request, VAR shall destroy
the remaining CCC Software and certify in writing to CCC that all
copies of the CCC Software have been destroyed.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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(3) within thirty days of termination of this Agreement for any
reason. VAR shall return to CCC all materials related to the CCC
Software, except that VAR may retain the minimum number of copies
reasonably necessary to fulfill its contractual obligations for
maintenance and support services. VAR shall continue to make any
payments due to CCC in connection with VAR's fulfillment of such
contractual obligations. Within this time, VAR shall deliver to
CCC a notarized certification signed by an officer of VAR that
VAR has complied with the requirements of this Section.
(4) All outstanding obligations or commitments to pay nonrefundable
amounts to CCC, if any, shall become immediately due and payable.
(5) VAR shall have no right to receive any compensation,
reimbursement or other amounts from CCC, and shall have no
ownership or other right whatsoever in or to (a) the CCC
Software, (b) the User Documentation, (c) any copyrighted
materials relating to the CCC Software, or (d) any trademarks,
service marks, trade secrets or other proprietary rights relating
to the VAR Software, or (e) any goodwill that may have developed
during the term of this Agreement, except as set forth in Section
16 of the License and Service Agreement.
(f) No Damages for Termination
Neither CCC nor VAR shall be liable to the other for damages of any kind,
including but not limited to incidental or consequential damages, on account of
termination of this Agreement in accordance with this Section 8 even if advised
of the possibility of such damages (other than actual damages arising from
breach of obligations under this Agreement).
(g) Survival
Sections 2 (Obligation of VAR), 4 (Notification and Records), 5 (Limitation
of Warranty and Liability), 6 (Confidentiality and Proprietary Rights), 8 (Terms
and Termination) and 9 (General Provisions), as well as VAR's obligation to pay
CCC all sums due hereunder, shall survive termination of this Agreement.
10. Arbitration. Any controversy or claim between CCC and Customer arising out
-----------
of, or relating to, this Agreement or its performance or breach, but excluding
actions for injunctive relief pursuant to Section 12 of the License and Service
Agreement, shall be settled by arbitration in Los Angeles, California in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association: and judgment entered upon the award by the arbitrator may be
entered in any court having jurisdiction thereof. The prevailing party in any
arbitration shall be entitled to reimbursement from the other party of its fees,
costs and expenses incurred in the arbitration. Texas rules of discovery shall
apply during this arbitration.
11. General Provisions
VAR shall at all times be an independent contractor and shall so represent
itself to all third parties. Neither party has granted to the other the right to
bind it in any manner or thing whatsoever and nothing herein shall be deemed to
constitute either party the agent or legal representative of the other nor to
constitute the parties as partners, agents or joint ventures of one another.
VAR may not assign this Agreement or any of its obligations hereunder to
any third party or entity, and this Agreement may not be involuntarily assigned
or assigned by operation of law without the prior written consent of CCC, which
consent shall not be unreasonably withheld. Any attempted assignment in
contravention of this Agreement shall be null and void as to the alleged
assignor and assignee. The provisions hereof shall be binding upon and inure to
the benefit of the parties, their successor and permitted assigns.
CCC shall not be responsible for any failure to perform due to unforeseen
circumstances or for causes beyond CCC's control.
Any notice or communication required or permitted to be given hereunder
must be delivered by hand or mailed by registered or certified mail return
receipt requested, postage prepaid, or sent by cable, charges prepaid, in each
case properly addressed to the addresses of the parties indicated on the
signature page of this Agreement, or at such other addresses as may hereafter be
furnished in writing by either party hereto the other party, and such notice
shall be deemed to have been given as of the date so delivered, mailed or sent.
This Agreement states the entire agreement of the parties. Except as herein
expressly provided to the contrary, the provisions of this Agreement are for the
benefit of the parties hereto solely, and not for the benefit of any other
person, persons or legal entities. No waiver, alternation, or modification of
any of the provisions of his Agreement shall be binding unless in writing and
signed by a duly authorized representative of CCC and VAR and expressly
referring to this Agreement.
VAR acknowledges that it is not entering into this Agreement on the basis
of any representations not expressly contained herein. No employee, agent or
other representative has any authority to bind CCC with regard to any statement,
representation or warranty unless the same is specifically set forth or
incorporated by reference herein.
7
<PAGE>
Any purchase order or other document issued by VAR shall be deemed to be
issued only for administrative convenience and no term or condition thereof
shall be binding on either party hereto.
The waiver of one breach or default hereunder shall not constitute the
waiver of any subsequent breach or default and shall not act to amend or negate
the rights of the parties under this Agreement.
The Section and Paragraph headings are included as a matter of convenience
and shall not be considered part of this Agreement.
This Agreement is subject to acceptance by CCC at its principal offices in
the State of Texas and shall be governed by and construed in accordance with the
laws of the State of Texas.
In the event that one or more of the provisions contained in this Agreement
shall be invalid, illegal or unenforceable in any respect under any applicable
statute or rule of law, then such provision shall be considered inoperable to
the extent of such invalidity, illegality or unenforceablility and the remainder
of this Agreement shall continue in full force and effect. The parties hereto
agree to replace any such invalid, illegal or unenforceable provision with a new
provision which has the most nearly similar permissible economic effect.
The prevailing party in any suit instituted under this Agreement will be
entitled to recover all cost, expenses and reasonable attorneys' fees incurred
in such action.
This Agreement shall become effective only after it has been signed by VAR
and has been signed by a duly authorized representative of CCC and VAR has been
given notice of its acceptance as indicated by VAR's receipt of a signed copy of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date specified below.
CCC VAR
CLEARCOMMERCE Cardservice International, Inc. a
CORPORATION, a Delaware corporation California Corporation
/s/ Robert J. Lynch /s/ Caesar Berger
- ----------------------------------- -----------------------------------
Signature Signature
Robert J. Lynch President & CEO Caesar Berger/SVP
- ----------------------------------- -----------------------------------
Printed Name/Title Printed Name/Title
6-30-98 6.30.98
- ----------------------------------- -----------------------------------
Date Date
8
<PAGE>
SCHEDULE A
----------
Description of Software Product
Description of CCC Software:
- ----------------------------
I. CSI/StoreManager Plus features:
StoreManager Plus: StoreManager Plus requires minimal technical expertise and
offers an easy-to-use GUI for storefront creation and maintenance. StoreManager
Plus offers full reports with Graphics capabilities. Utilizes StoreManager Pro
supported on Sun Solaris 2.6.
Merchants can select a border style and color scheme, select a button style.
. Access to shopping cart
. Product/features options support
. Fraud prevention
. Email receipt to customer
. Email notification to merchant
. Real-time transactions
. SSL support
. Reports with graphics and search
tools
. Single image per product
. Flat tax rate by state (multiple next)
Skill Level Required: minimal technical experience required, familiarity with
Windows '95
2. [*]
3. CyberPoint: See Attachment B (Software requirements documentation-
CyberPoint)
4. HTML Wrapper: See Attachment E (Software requirements Documentation-HTML
Wrapper)
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
9
<PAGE>
SCHEDULE B
----------
FORM OF CCC END USER LICENSE
END USER LICENSE AGREEMENT
--------------------------
Cardservice International is an authorized reseller ("Reseller") of
ClearCommerce Corporation ("CCC") products subject to the Value-added Reseller
Agreement between CSI and CCC. CSI is authorized to execute this License
Agreement with the Customer on behalf of CCC.
By Using or installing this software, you have signified that you have read the
license agreement below and accepted its terms.
1. Permitted Uses And Restrictions On Use: CCC is granting the End User of this
--------------------------------------
CCC software product ("End User") a non-exclusive license to use the object
code versions of this CCC software ("Software Product"). CCC grants to End
User a non-exclusive license ("License") to use the Software Product solely
on computer equipment owned by or leased to End User and solely for the
purpose of enabling End User to sell merchandise or services for End User's
own account. End User shall not use the Software Product to engage, directly
or indirectly, in the offering or "factoring" of products or services for
the account of third parties. End User may make one copy of the Software and
documentation ("CCC Software") solely for backup or archival purposes. The
License shall include End User's right to use (but not duplicate) end-user
documentation provided by CCC. Neither the License nor any CCC Software
shall be transferable to any third party by End User.
2. DISCLAIMER OF WARRANTIES: THERE ARE NO WARRANTIES OF ANY KIND, WHETHER
------------------------
EXPRESS OR IMPLIED, WITH RESPECT TO THIS SOFTWARE TO END USER IN CONNECTION
WITH THIS LICENSE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CCC DOES NOT
WARRANT THAT THE SOFTWARE IS FREE FROM BUGS, INTERRUPTION, ERRORS OR OTHER
PROGRAM LIMITATIONS.
3. Term: This Agreement shall be effective from the date it is accepted and
----
executed by Reseller as indicated on signature page.
4. Remedies: Limitation of Liability: In the event of any breach of this
---------------------------------
License by CCC, CCC shall have no liability for any loss, cost expense or
damage to End User in an amount exceeding the amounts paid by End User for
the CCC Software. CCC shall not be liable for indirect, incidental,
punitive, exemplary, special or consequential damages of any kind
whatsoever, including lost profits, sustained or alleged to have been
sustained as a result of; (a) any breach of warranty or breach of this
License; (b) CCC's negligence or gross negligence; or (c) any claim made
against End User by any other party, including claims by any payment card
issuer, membership association, processor or agent bank, even if CCC has
been advised of the claim or potential claim. End User retains
responsibility for compliance with all rules and regulations related to
issuance, acceptance, and settlement and clearing of payment transactions.
End User shall indemnify, hold harmless and defend CCC against any claim,
demand, loss or action resulting from End User's possession or use of the
CCC Software. Any action by End User for breach of this License or warranty
must be brought within one (1) year after the cause of action has accrued.
5. Proprietary Rights: End User acknowledges that: the CCC Software, including
------------------
the Software Product and any related documentation and materials, (a) are
the property of CCC and remain so even after delivery to End User; (b) are
confidential and proprietary trade secrets of CCC, protected by law and of
substantial value to CCC, and their use and disclosure must be carefully
and continuously controlled; and (c) are protected by the copyright laws of
the United States. End User shall not, directly or indirectly, or permit
others to; copy, duplicate, or furnish to others any physical, magnetic or
electronic version of the Software Product; remove any copyright or other
notice contained or included in any, material provided by CCC; create or
attempt to create the source computer programs or any part of them from the
object code version of the Software Product; change or modify the Software
Product or create derivative works from them; or reverse engineer or
attempt to reverse engineer the Software Product. End User shall notify CCC
immediately of the unauthorized possession, use or knowledge of any item
supplied to End User pursuant to this License.
6. Termination of License: The term of the License shall continue until
----------------------
termination of this Agreement, or unless termination by CCC for breach of
terms of this License. Upon any termination of this License, End User shall
immediately return to CCC all Software Product and any related proprietary
materials licensed under this License.
7. Applicable Law: This License shall be governed by the laws of the State of
--------------
Texas other than the conflicts of law principles thereof. Any controversy
or claim between CCC and End User arising out of, or relating to, this
License or its performance or breach, but excluding actions for injunctive
relief pursuant to Section 5 shall be settled by arbitration in Austin,
Texas in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect; and judgment entered upon the award
by the arbitrator may be entered in any court having jurisdiction thereof.
The prevailing party in any arbitration shall be entitled to reimbursement
from the other party of its fees (including reasonable attorneys' fees),
costs and expenses incurred in the arbitration.
8. Maintenance Service: Product support assistance, new release of the
-------------------
Software Product licensed by End User from CCC, and corrections to reported
and documented errors in the CCC Software may be provided to End User by
VAR per the terms of any separate Maintenance Services Agreement between
End User and Reseller.
9. Force Majeure: CCC shall have no liability and shall not be deemed in
-------------
breach of this License in the event any act or omission is the result of
any event beyond the reasonable control of CCC, including without
limitation, acts or nonperformance of third parties, equipment failure or
natural disasters.
10. Severabillity: If any provision of this Agreement is invalid or
-------------
unenforceable under applicable law, then it shall be, to that extent deemed
omitted and the remaining provisions will continue in full force and
effect.
11. Assignment: Neither the License nor any rights or responsibilities of End
----------
User hereunder may be assigned or delegated to any third party without the
prior written consent of CCC.
10
<PAGE>
12. Publicity: CCC shall be permitted to include End User's name in CCC's End
---------
User list and with End User's prior approval not to be unreasonably
withheld, to use End User's name and logo in CCC's marketing materials.
13. Agents: The agents, employees, distributors and dealers of CCC are not
------
authorized to make modifications to this License, or to make any additional
representations, commitments, or warranties binding on CCC.
14. Miscellaneous: This License sets forth CCC's entire liability and the End
-------------
User's exclusive remedy with respect to the Software, and is a complete
statement of the License between the End User and CCC. Headings are
included for convenience only, and shall not be considered in interpreting
this License. This License does not limit any rights that CCC may have
under trade secret, copyright, patent or other laws.
In witness whereof, the parties have entered into this Agreement as of 30 day of
June, 1998.
<TABLE>
<S> <C>
Reseller (on behalf of ClearCommerce Corporation) End User
Company CLEARCOMMERCE Company Cardservice International, Inc.
----------------------------------------- -----------------------------------------
By /s/ [ILLEGIBLE] By /s/ [ILLEGIBLE]
----------------------------------------------- -----------------------------------------------
Title President & CEO Title S. Vice President
-------------------------------------------- ---------------------------------------------
Agreement is valid only is signed by an officer of Reseller. Reseller may refuse to execute any Agreement not duly signed
And returned to Reseller within 30 days of the date
Agreement sent to End User
</TABLE>
11
<PAGE>
SCHEDULE C
----------
CyberPoint, Store Front SSL API, HTML Wrapper Volume Commitment Discounts
<TABLE>
<CAPTION>
Volume Committed 12 months Per month
- -------------------------- ---------
Per Merchant per month charge Initial License Fee
Licenses Initial Fee/Merchant 13 to 24 25 and beyond Prepay
- ----------------------------- ----------------------------- ------
<S> <C> <C> <C> <C>
0-1000 [*] [*] [*]
1001-4999 [*] [*] [*]
5000-10,000 [*] [*] [*] [*]
10,001- GTR [*] [*] [*]
</TABLE>
CSI will prepay for the initial [*] licenses. Of these licenses CSI agrees that
at a minimum [*] will be for the Store Front SSL API. The remaining licenses
will be for CyberPoint, HTML Wrapper and/or Store Front SSL API licenses. After
the initial Quantity [*]. CSI will order additional licenses in quantity [*].
Store Front SSL API & CyberPoint Users
Per Month
2/nd/-12 beyond 25
Licenses months months
- -------- ------ ------
Assuming CSI has paid the initial license fee for both CyberPoint and the
storefront SSL API, there would be a discount on the monthly license fee of the
second licensed product of [*].
[*] [*] [*]
[*] [*] [*]
StoreManager Plus
Product initial license discount % discount Net Price
fee to CS1 to CSI to CSI
- ------------------------------------------------------------------------
StoreManager Plus [*] [*] [*] [*]
ANNUAL UPGRADES AND SUPPORT CHARGES (due after 1/st/ year)
annual charge discount net price to
to CSI CSI CSI
- ------------------------------------------------------------------------
StoreManager Plus [*] [*] [*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form S-1
(File No. 333-31878, Amendment No. 1) of our reports dated February 25, 2000,
except as to Note 15 which is as of March 6, 2000, relating to the financial
statements and financial statement schedule of ClearCommerce Corporation, which
appear in such Registration Statement. We also consent to the references to us
under the headings "Experts" and "Selected Financial Data" in such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Austin, Texas
March 10, 2000
