EXHIBIT 10.12
STANDALONE LICENSE AGREEMENT
Licensor edocs, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Agreement No.: [**]
Effective Date: [**]
This Standalone License Agreement ("Agreement") is made and entered into as of
the Effective Date above between American Express Travel Related Services
Company, Inc., having an office at American Express Tower, World Financial
Center, New York, New York 10285 ("Amexco") and the Licensor specified above.
ARTICLE 1: PROVISION OF PROGRAMS
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1.1 Under the provisions of this Agreement, Licensor agrees to grant Amexco
licenses to use Licensor's Product (as defined below) and ▇▇▇▇ Type
Implementations (as defined below) which are listed on Schedules
substantially, in the form attached as Exhibit A ("Schedule").
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1.1.1 The License Fees (as defined below) for the Product do not include
any professional services, including, but not limited to, installation,
implementation, and Custom Services (as defined below) related to the
Product (collectively, the "Professional Services"). Custom Services are
defined as Licensor's services to customize, modify and/or enhance
Products, to develop programs, software and materials related to Products,
and/or such other services as the parties mutually agreed upon ("Custom
Services"). Amexco may purchase Professional Services offered by Licensor
in accordance with the terms and conditions of the Standalone Agreement for
Consultant Services between the parties dated [**] ("Consulting Agreement")
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and the related work statement schedules entered into between the parties
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thereunder.
1.1.2 License Fees for the Product do not include the Warranty for the
Product as described in Section 8.2 (b) or Maintenance and Support Services
for the Product as described in Section 6.1. Amexco may purchase such
services under a Schedule in accordance with the fees, terms and conditions
set forth in the Agreement and the Schedule. Notwithstanding anything in
this Agreement or a Schedule to the contrary, it is understood that
Warranty Fees (and after expiration of such Warranty Period, the
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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Maintenance Fees) for ▇▇▇▇ Type Implementations will automatically become
due and Warranty (and after expiration of such Warranty Period, the
Maintenance Fees) will automatically commence on the Warranty Start Date
for such ▇▇▇▇ Type Implementation as defined in Section 8.2(b) hereof and
will continue in effect for so long as Licensor is providing Warranty or
Maintenance and Support Services to Amexco hereunder.
1.2 Amexco hereby agrees to execute and submit the Initial Order Schedule set
forth in Exhibit B to Licensor and pay the License Fee thereunder of $[**]
to Licensor all on or before [**] (the "Initial Order"). Amexco also
agrees to enter into the Consulting Agreement and the related work
statements schedules associated with the Initial Order all on or before
[**] in a form mutually agreed to by the parties.
1.3 The term "Product" means the edocs BillDirect Software which consists of
the (i) edocs BillDirect production system software (the "▇▇▇▇ Direct
Production System Software") and (ii) the Tool Set consisting of (a) the
edocs Definition Tool software and (b) the edocs Application Logic File
Composer software, all along with any related documentation accompanying
any such software and any derivative works created by Licensor or Amexco in
the course of using any of such software in accordance with the terms
hereof, including but not limited to the data definition files (DDF Files)
and the application logic files (ALF Files) and active server pages scripts
but excluding the screen templates. However, the parties may mutually
agree otherwise with respect to ownership rights in a customized product
developed under a schedule to the Consulting Agreement as more fully
described in the last paragraph of Section 5 of the Consulting Agreement.
The term "▇▇▇▇ Type Implementation" means a license to one (1) ▇▇▇▇ type
implementation using the Product to integrate the information in each of
the following billing elements: (i) formatting the logic; (ii) input data
source; (iii) data extraction rules; (iv) ▇▇▇▇▇▇ name; and (v) product or
service for which the ▇▇▇▇ type is being prepared. For purposes of this
Agreement, a new ▇▇▇▇ Type Implementation occurs every time that a ▇▇▇▇
type is implemented using different information in any one or more of the
aforementioned billing elements and as a result ▇▇▇▇ Type Implementations
are not transferable or reusable.
1.4 Each Schedule shall be numbered and dated to facilitate identification and
when executed by both parties shall form a part of this Agreement and
become effective. Each Schedule shall include: (i) the Amexco site where
each Product is to be shipped to ("Ship to Address") and installed
("Installation Site"); (ii) the name and or other description and quantity
of each Product and ▇▇▇▇ Type Implementation [**] pack being ordered; (iii)
the date each Product is requested to be shipped by Licensor to Amexco
("anticipated Ship Date"), the date each Product is requested to arrive at
the Installation Site ("Scheduled Delivery Date") and, with respect to ▇▇▇▇
Type Implementations, the order date; (iv) if
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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available at the time the Schedule is issued by Amexco to Licensor (or such
later date is available), the name, location and serial number of the
single server on which each ▇▇▇▇ Direct Production System Software portion
of the Product will be installed, whether the server is a production
server, test/development server or back-up server and the description of
each ▇▇▇▇ Type Implementation (which information will be included with
respect to orders for Product, Warranty and Maintenance and Support
Services); (v) the charge for the license for each Product and ▇▇▇▇ Type
Implementation [**] pack based on the applicable pricing set forth on
Exhibit D ("License Fee"); (vi) the annual fee for the [**] Warranty (as
described herein) for each Product and ▇▇▇▇ Type Implementation ("Warranty
Fee"); (vii) the annual maintenance charges for each Product, if any
("Maintenance Fee"), ordered under the Schedule for which the related
Product was ordered or a subsequent Schedule; (viii) any other provisions
the parties mutually agree upon; and (ix) such other information as
Licensor may reasonably request from time to time for such Schedule to meet
Licensor's revenue recognition policies as may be required to be in
compliance with generally accepted accounting principles (GAAP).
1.4.1 In the event of any inconsistency between this Agreement and any
Schedule, the provisions of such Schedule shall govern for purposes of such
Schedule.
1.5 Amexco, [**] ("Amexco Entities") may execute Schedules with Licensor under
this Agreement for the purpose of ordering Products and ▇▇▇▇ Type
Implementations and related Warranty Services and Maintenance and Support
Services and for purposes of such Schedule shall be considered "Amexco" as
that term is used throughout this Agreement. American Express Travel
Related Services Company shall remain primarily liable for any failure of
any other Amexco Entity to perform in accordance with the terms of this
Agreement and Amexco shall cause each of the Amexco entities to be bound by
the terms of this Agreement and the related Schedules.
ARTICLE 2: DELIVERY; INSTALLATION
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2.1 Licensor shall use best efforts to deliver each Product to the Installation
Site on or before its Scheduled Delivery Date.
2.2 To the extent that Amexco is not purchasing installation services for the
Product from Licensor under the Master consulting Agreement then Amexco
shall install the Product in accordance with instructions provided by
Licensor and that Product shall be deemed to be installed within [**]
([**]) days after its delivery to the Installation Site unless Amexco
notifies Licensor of an installation problem within said [**] ([**]) day
period.
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[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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ARTICLE 3: ACCEPTANCE
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3.1 Unless otherwise provided in a Schedule there will be no acceptance tests
on the Product as defined in Section 1.3 hereof or otherwise. To the
extent there is an acceptance test in a Schedule, the procedures, terms and
conditions for such acceptance test and the acceptance test criteria will
be as set forth in the Schedule. With respect to the Initial Order
Schedule only set forth in Exhibit B hereto, there is an acceptance test
for the Customized Product (as defined therein) only, as set forth in the
attachments thereto.
ARTICLE 4: DOCUMENTATION AND TRAINING
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4.1 Upon delivery of each Product, Licensor shall deliver to Amexco one (1)
copy of all generally available documentation for such Product sufficient
to enable Amexco personnel to use and to fully understand the use and
operations of the Product ("Documentation"). Amexco may copy the
Documentation in order to satisfy its own internal requirements or may
request Licensor to furnish additional copies at Licensor's current
standard prices, less any applicable discounts. Each copy of the
Documentation made by Amexco hereunder shall include any and all copyright,
trademark, proprietary rights and other intellectual property notices or
markings as well as all disclaimers or warning notices included on any part
of any Documentation originally provided by Licensor.
4.2 The License Fees for the Product do not include training. During the term
of this Agreement Amexco may purchase the training separately at the
applicable rates set forth on Exhibit D ("Training Fees"). If training is
required for a Product, the charge, duration, nature and other particulars
applicable to such training shall be specified on the Schedule.
4.3 Licensor agrees to place a current and complete copy of the source code for
the Product ("Source Code") in escrow with an independent third party
escrow agent known as [**] ([**]). Promptly after general commercial
release of any new Update of the Product, Licensor shall deliver to the
Escrow Agent, for deposit in accordance with such escrow agreement, any and
all changes to the Source Code which correspond to changes, if any, made to
the corresponding Product in such Update. The terms of the Source Code
escrow and release conditions and the related rights, duties and
obligations of Licensor and Amexco with respect thereto are set forth in
Exhibit 3.
ARTICLE 5: SCOPE OF LICENSE AND PROPRIETARY RIGHTS
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5.1 Subject to the terms and conditions of this Agreement, Licensor grants to
Amexco a perpetual (subject to Licensor's rights to terminate a license,
Schedule or this Agreement as specifically set forth herein), non-
exclusive, non-transferable (subject to Article 5.3 hereof) license to use
(i) each copy of the BillDirect Production System Software portion
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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of the Product on a single server (identified by server name and type as
agreed to in writing by Licensor and Amexco) for up to that number of ▇▇▇▇
Type Implementations licensed for use on that single server hereunder and
(ii) each copy of the Tool Set portion of the Product on a single
workstation, each commencing upon its shipment to Amexco. The effective
date of a ▇▇▇▇ Type Implementation is the date Licensor receives and
accepts a Schedule.
The Product may not be pooled or used on any additional servers or
workstations, as applicable per the above license grant. The foregoing
sentence does not limit Amexco's right to transfer the ▇▇▇▇ Direct
Production Server portion of the Product from one server to another in
accordance with the terms of Section 5.3, to utilize a copy of the Product
for disaster recovery purposes in accordance with the terms of Section 5.4
or the license for the ▇▇▇▇ Direct Production Server portion of the Product
for installation on a test development server in accordance with the terms
of Section 5.1 and the relevant Schedule. The foregoing license shall be
limited to employees of Amexco and third party consultants of Amexco who
are not competitors of Licensor on a need to know basis provided Amexco
causes such employees and third party consultants to be bound by the terms
hereof. The foregoing license shall be limited solely to Amexco's internal
business use and not for distribution, marketing, consulting, revenue
generation or to service any third party as a service bureau operation,
billing aggregator, portal or otherwise. Notwithstanding the foregoing,
Licensor may agree in writing in advance to Amexco's use of the Product for
a service bureau operation on terms, conditions and License Fees to be
mutually agreed to in advance between the parties, including the specific
future licenses of the Product and specific future ▇▇▇▇ Type
Implementations of the Product to which such service bureau usage would
apply. Licensor has the right to conduct an audit of Amexco's premises
from time to time upon reasonable notice to Amexco to confirm Amexco's
compliance with the terms of this Agreement.
5.2 If not previously provided on a Schedule, with respect to Products, Warrant
and Maintenance and Support Services ordered under a Schedule, Amexco will
provide Licensor with immediate written notice of the server name, server
location and serial number where each Product is installed, whether the
server is used with the Product as a production server or test/development
server consistent with the usage authorized in the license grant for the
product hereunder and the date of installation of the Product thereon. If
not previously provided on a Schedule, Amexco will also provide Licensor
with immediate written notice of the description of each ▇▇▇▇ Type
Implementation. Amexco will promptly notify Licensor in writing of any
changes in the foregoing information.
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5.3 Amexco may transfer the license to use a Product from one Amexco Entity
server to another Amexco Entity server without payment of any additional
fee or charge (other than (i) the International Pricing Uplift described in
Exhibit D to the extent a Product is transferred from a server located in
the US to a server located outside of the US or (ii) the then current
License Fee for the Product set forth in Exhibit D to the extent that the
Product is transferred from a test/development sever to a production
server), so long as the use remains consistent with the scope of that
Product's license as specified in Section 5.1. Amexco agrees to provide
Licensor with prior written notice of any such transfer, such notice to
include the information required in Section 5.2 and the name of the Amexco
Entity who owns the server to which the Product is transferred. Amexco will
also deinstall the Product from the server on which it was previously
installed immediately after installation on the new server. Each license
includes the right to access and use Products in connection with any
associated or interconnected networks, peripherals, equipment and devices
(for administrative purposes only and not for downloading and execution at
a remote location), unless otherwise specifically prohibited or limited in
the Schedule. Except as specifically provided in this paragraph, Amexco
shall not assign (other than to an Amexco Entity), sublicense, use, resell,
rent, lease or otherwise transfer the Products.
5.4 After the Initial Order, for every [**] copies of the product which Amexco
licenses from Licensor for installation on a production server and pays for
in full in accordance with the terms hereof, Licensor will license Amexco
[**] copies of the BillDirect Production Server Software portion of the
Product each for installation on a single test/development server at Amexco
(and not for production purposes) at [**]. See the Initial Order Schedule
set forth in Exhibit B for the terms and conditions regarding
test/development server licenses for the BillDirect Production Server
Software thereunder. Amexco shall have no right to install or use Products
on temporary substitute or back-up equipment, provided however, that Amexco
shall be entitled to make and keep one uninstalled copy of each Product and
its Documentation at a separate facility for purposes of safekeeping and
back-up, subject to the marking requirements under Section 4.1 above.
5.5 Amexco is hereby notified that the Products may include programs belonging
to third party licensors. Licensor (and or its licensors) retains title to
the Products provided hereunder and does not convey any proprietary rights
or other interest therein (including, without limitation, patents,
copyrights, trade names, trade secrets, trademarks, or other intellectual
property rights of Licensor or its licensors (collectively, the
"Intellectual Property Rights")) to Amexco, other than the licenses granted
hereunder, and all such right, title and interest in the Products shall be
deemed the Confidential Information of Licensor hereunder and subject to
the terms of Article 10 hereof. Amexco shall not make
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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any use of any trademark or trade name of Licensor or any of its licensors
without the prior written consent of Licensor. The Product is protected by
copyright laws, other laws, and international treaty provisions. Therefore,
Amexco must treat and protect the Product like any other protected
materials. Amexco may not remove any copyright, patent, trademark,
proprietary rights and other intellectual property notices or markings nor
may Amexco remove any disclaimers or warning notices included on or
embedded in any part of the Product originally provided by Licensor or any
copy Amexco may make of the Product.
Amexco acknowledges that Licensor owns the Products and agrees to make any
and all assignments necessary to vest in Licensor all intellectual property
in the Products. Amexco agrees, during the term of this Agreement and at
any time thereafter, to take such further actions as Licensor deems
reasonably necessary to give effect to any such assignment as set forth in
this Section. Notwithstanding the foregoing, in no event shall Amexco be
deemed to have assigned to Licensor (a) the copyright or other intellectual
property rights in independently developed ▇▇▇▇ layouts, Amexco logos or
Amexco billing data provided to Licensor under this Agreement or otherwise
or (b) Amexco's screen templates.
The source code underlying the Product constitutes confidential information
and a valuable trade secret of Licensor and/or its licensors, as the case
may be. Thus, Amexco may not reverse engineer, decompile, disassemble,
reverse assemble, modify, adapt, translate, decrypt, create derivative
works based on the Products, merge any Products into any other program or
use all or any portion of the Products for the purpose of deriving their
source code, except as specifically permitted by applicable law and to the
extent that Licensor is not permitted by such applicable law to exclude or
limit such rights. To the extent that applicable law permits any of the
activities set forth in the previous sentence to be undertaken by Amexco to
achieve interoperability between the Products and other software, and
Licensor is not permitted by applicable law to restrict Amexco from
undertaking the foregoing activities, then prior to Amexco undertaking any
of the foregoing activities, Amexco shall first request from Licensor the
information necessary to achieve the interoperability. Such information
may be provided by Licensor at Licensor's sole option.
ARTICLE 6: MAINTENANCE
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6.1 In consideration of Amexco's payment of the applicable Warranty Fee during
the Warranty Period specified in Section 8.4, and thereafter in
consideration of Amexco's payment of the applicable annual Maintenance Fee,
Licensor agrees to provide Amexco with the services specified in this
Article 6 for Products licensed hereunder (the
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"Maintenance and Support Services", although during the Warranty Period
they are referred to as the "Warranty Services"). The annual paid-up period
during which Licensor is providing Maintenance and Support Services is
referred to as the "Support Term". Warranty Fees and Maintenance Fees for
the Product and ▇▇▇▇ Type Implementations are set forth in Exhibit D. All
Warranty Fees and Maintenance Fees are payable annually in advance in
accordance with Section 7 hereof. Notwithstanding anything in this
Agreement to the contrary, in the event that Amexco purchases Maintenance
and Support Services for a Customized Product (as defined in a Schedule)
pursuant to a Schedule, then the same terms and conditions shall apply to
the Maintenance and Support Services for the Customized Product as the
Product, with the following exceptions: (a) the Maintenance Fee shall be as
set forth on Exhibit D for the Customized Product and (b) Licensor will use
commercially reasonable efforts to correct and repair the Customized
Products in accordance with the terms of this Article 6 to conform to the
Customized Product Acceptance Test Criteria for the Customized Product set
forth in the Schedule rather than the Documentation.
Notwithstanding anything in this Agreement to the contrary, the start date
for the Support Term for a ▇▇▇▇ Type Implementation is upon expiration of
the applicable Warranty Period and the Maintenance Fee is increased to
include these ▇▇▇▇ Type Implementations. Notwithstanding anything in this
Agreement to the contrary, Warranty Fees and Maintenance Fees are increased
each time additional ▇▇▇▇ Type Implementations are ordered under a Schedule
and the Warranty Start Date occurs for that additional ▇▇▇▇ Type
Implementation. The Warranty Fees and Maintenance Fees for additional ▇▇▇▇
Type Implementations are as set forth in Exhibit D.
6.2 (a) During a paid up Support Term for a Product Licensor shall provide the
following Maintenance and Support Services:
(i) with respect to Severity Level [**] as described below (and with
respect to Severity Level [**] as described below from the Effective Date
of this Agreement through [**] provided Amexco is under a paid up Support
Contract), to provide the Maintenance and Support Services described in
this Section 6 remotely via telephone or electronically from [**] ("Normal
Business Hours") for up to [**] ([*]) Registered Contracts of Customer;
(ii) with respect to Severity Levels [**] (and commencing [**] with
respect to Severity Level [**] provided Amexco is under a paid up Support
Contract) as described below, to provide the Maintenance and Support
Services described in Section 6 remotely via telephone or electronically
[**] via pager or telephone for up to the same [**] ([*]) Registered
Contacts of Customer);
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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(iii) to use commercially reasonable efforts to correct reported
errors or malfunctions in the Product to enable it to perform in accordance
with the Documentation;
(iv) to provide Updates (as defined below) to the Product; and
(v) to the extent that Licensor is unable to correct the errors and
malfunctions in the Product remotely pursuant to subsections (i) through
(iii) of this paragraph during the targeted resolution time period set
forth below, then, at the request of Amexco, Licensor shall use best
efforts to arrive on site at a US Amexco facility to perform such
Maintenance and Support Services within [**] hours of request from Amexco
(with Amexco paying Licensor for such on site services in accordance with
the daily rate for on site maintenance and support services set forth on
Exhibit D plus reimbursement of travel, living and lodging expenses in
accordance with Amexco's travel policy, a copy of which was provided to
Licensor). For on site requests of this type outside of the United States
the parties must mutually agree to this requirement on a case by case
basis.
Notwithstanding anything in this Agreement to the contrary, to the extent
that Licensor is licensing Product for use on a test/development server
only under a Schedule then Support Services for each such copy of the
Product shall be provided remotely via telephone or electronically from
[**] for up to [**] ([**]) Registered Contracts of Customer and the number
of calls per copy of the Product installed on each test/development server
per month shall be limited to [**] and otherwise in accordance with the
terms of this Agreement. To the extent that the number of calls per copy
per text/development server per month exceeds [**], then Amexco shall pay
Licensor $[**] per call for each call in excess of [**] each month with
respect to that test/development server or alternatively, Amexco may elect
to purchase Maintenance and Support Services under this Agreement payable
[**] in advance in accordance with the terms set forth in this Agreement
with respect to a copy of the Product licensed for use on a
test/development server under this Agreement in lieu of making the payment
set forth in the foregoing sentence provided that the commencement date of
such Support Term is retroactive to the first of the month in which the
charges for the calls in excess of [**] were incurred and not paid and the
related annual Maintenance Fee is paid within [**] days after the end of
the month in which the charges for such calls in excess of [**] were made.
The related Maintenance Fee for such Product will be calculated on the
basis of an assumed License Fee for each such Product of $[**] and such
License fee will be multiplied by [**]% to arrive at the annual Maintenance
Fee for such Product, subject to increase in accordance with Schedule D of
this Agreement. In lieu of the foregoing the parties may mutually agree in
writing to an alternative means to charge for and handle calls in excess of
[**] per copy of the Product per test/development server per month.
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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(b) At the time a call is received under this Section Licensor will assign
a Severity Level (as defined below) based on the input from Amexco
regarding the reported error or malfunction, which Severity Level must be
consented to by Amexco, which consent will not be unreasonably withheld.
In the event that the parties disagree on the classification, they agree to
escalate the disagreement to the head of support services in each
organization, should a party so request, for final resolution. The
foregoing process will also be followed should a party suggest a
reclassification of the Severity Level for a reported error or malfunction.
Licensor agrees to use commercially reasonable efforts to respond by
telephone to a report error or malfunction in a Product under subsection
(iii) above within the timeframe set forth in the Targeted Response Time
column below which corresponds to the Severity Level agreed to by Licensor
and Amexco per the previous paragraph. Licensor agrees to use commercially
reasonable efforts to provide a resolution to a reported error or
malfunction in a Product under subsection (iii) above within the timeframe
set forth in the Targeted Resolution Time column below which corresponds to
the Severity Level agreed to by Amexco and Licensor per the previous
paragraph.
SEVERITY LEVEL DEFINITIONS
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SEVERITY [**] SEVERITY [**] SEVERITY [**] SEVERITY [**] SEVERITY [**]
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A condition whereby A condition A condition A condition A condition
the Product is whereby the whereby a whereby the whereby a
completely inoperable. Product is substantial Product cosmetic
substantially Product feature malfunctions in Product or
inoperable. noted in the deviation from documentation
Documentation is the error exists
not working or a Documentation and user
substantial in such case operation is
Product-related and to such not
performance degree that substantially
problem exists user operation impacted.
which causes the is not
Product substantially
performance to impacted.
deviate from the
Documentation.
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Any changes to the above definitions must be mutually agreed by Amexco and
Licensor.
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TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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TARGETED RESPONSE AND RESOLUTION TIMES
SEVERITY LEVEL-
SEE DEFINITION OF SEVERITY TARGETED TARGETED
LEVELS IN TABLE ABOVE RESPONSE TIME RESOLUTION TIME
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Severity [**] [**] [**]
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Severity [**] [**] [**]
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Severity [**] [**] [**]
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Severity [**] [**] [**]
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Severity [**] [**] [**]
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6.3 (a) During a paid up Support Term for a Product, Licensor shall provide
Amexco with all new versions, modifications, and patches to the Product and
the accompanying Documentation described in Section 4.1, the primary
purpose of which is to maintain compatibility of the Product with the then
current supported operating environment and/or to provide enhanced features
and capabilities for the Product, and which Licensor makes generally
available on a commercial basis at no additional charge to its customer
base who are under a contract with Licensor for the same support level of
Maintenance and Support Services as Amexco purchases hereunder ("Update").
Updates shall not include separate new software products, including without
limitation, extensions, modules or add-ons to the Product, which provide
additional functionality to the Product, any of which are made generally
available on a commercial basis as separate price listed options or as
additions to the Product.
Updates to not include installation by Licensor under this Agreement
(although Amexco may purchase such services under the Consulting
Agreement). Amexco has up to [**] [**] after Licensor ships Amexco an
Update for a Product which constitutes a Major Release (as described below)
to use the prior Major Release, at the end of which [**] period Amexco is
required to install the new Major Release (or a customized version thereof
which Amexco engages Licensor to develop under the Consulting Agreement and
the related Work Statement which the parties mutually agree to be installed
in lieu of the new Major Release) in order for Amexco to continue to be
eligible for paid up Support Services hereunder. Licensor will continue to
provide Maintenance and Support Services during such [**] period for such
prior Major Release for the Product provided Amexco remains under a paid up
Support Term for that Product. Each Major Release shall be identified by
Licensor solely by the numeral(s) to the left of the furthest left decimal
point in the numbering system which Licensor utilizes to identify each
Update, with the new Major Release having the greater numeral. For example,
for any given Product, release 3.0 is a more current version than release
2.0. For purposes of this Agreement, an Update
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 12 -
once incorporated into any Product or Documentation shall be considered a
part thereof for all purposes hereunder, including without limitation, the
licensing terms for the initial Product, except that an Update does not
include its own warranty (but which Update is covered by any paid up
Warranty or Support Term in place with respect to the particular Product
for which this Update was provided).
(b) Licensor may exclude from coverage under this Agreement any Product or
Updates if (a) any Product or Update (i) has been subject to misuse,
failure to comply with applicable operating instructions, improper
installation, repair, alteration or damage, either by Amexco or a third
party or (b) Amexco has not installed the most recent Update to the Product
as required under this Agreement (subject to Sections 6.3(a) and 6.4 of
this Agreement). Furthermore, Maintenance and Support Services
specifically exclude (a) any other Licensor software or hardware which is
not covered under this Agreement and which the Product interfaces to,
accesses, calls or invokes and (b) any other third party software or
hardware which the Product interfaces to, accesses, calls or invokes. If
any Maintenance and Support Services are performed by Licensor at the
request of Amexco for or in connection with any Product. Update or
Maintenance and Support Services excluded from coverage under this
Agreement, such Maintenance and Support Services shall be separately
billable at Licensor's then current rates and under its then current terms
plus reimbursement for travel, living and lodging, if any, in accordance
with Amexco's travel policy.
(c) Amexco accepts responsibility for any compatibility problems between
the Product and any other application or other software programs not
covered under this Agreement. Amexco, at its own expense, will (a)
promptly install and implement (subject to Sections 6.3(a) and 6.4 hereof)
all Updates provided by Licensor to Amexco on the specific server and for
the specific ▇▇▇▇ Type Implementation for which the Product was initially
licensed under this Agreement only (or in the case of the Tool Set portion
of the Product (as defined in this Agreement), on the workstation for which
it was initially licensed under this Agreement (subject to Amexco's
transfer rights under Section 5.3(b)), (b) provide Licensor access to the
Product for purposes of performing Maintenance and Support services under
this Agreement, (c) provide Licensor such assistance, information, services
and facilities as may be requested by Licensor to perform the Maintenance
and Support services under this Agreement and (d) provide Licensor with
access to at least (i) [**] "Registered Contact of Customer" (as defined
below), but not more than [**] Registered Contacts of Customer (provided
[**] of those [**] have been trained in customer support topics by Licensor
in accordance with the fees set forth in Exhibit D), to assist with
resolution of support issues raised under this Agreement and (ii) [**]
"Business Contact of Customer" (as defined below), but not more than [**]
Business Contacts of Customer, to assist with the resolution of business
issues raised under this
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 13 -
Agreement. "Registered Contact of Customer" is an employee of Amexco who is
trained by Licensor (in accordance with Licensor's standard training
program rates and terms) or trained by Amexco personnel who have been
trained by Licensor in the use and administration of the Products, who has
the necessary security access and skills to follow the instructions of
Licensor, including the ability to install and implement any Updates,
including without limitation, files and patches, necessary for problem
resolution. The Registered Contact names will be supplied within [**]
([**]) days of execution of this Agreement and may be modified by Amexco in
accordance with the terms hereof upon giving prior written notice to
Licensor. "Business Contact of Customer" is an employee of Amexco who is
authorized to act on behalf of Amexco in dealing with Licensor on business
related issues which arise in connection with this Agreement and who has
both a business and support and maintenance background with Amexco. The
Business Contact names will be supplied within [**] ([**]) days of
execution of this Agreement and may be modified by Amexco in accordance
with the terms hereof upon giving prior written notice to Licensor.
(d) If Amexco lets the Support Services expire with respect to some or all
of the Products and later purchases Maintenance and Support Services for
such Products, Amexco will owe (i) a one time fee to reinstate the
Maintenance and Support Services in an amount to be mutually agreed to by
the parties (but not to exceed [**]% of the Maintenance Fees for the time
when the Support Services had lapsed) taking into consideration such
factors as the time elapsed since non-renewal and the number of Updates
issued by Licensor since such non-renewal (the "Reinstatement Charge") and
(ii) the then current Maintenance Fee for such Product. Licensor will
invoice for such fees and charges upon acceptance of the order from Amexco.
Amexco agrees to pay the Reinstatement Charge and the related Support Fee
within [**] ([**]) days of the corresponding invoice date and in accordance
with the other provisions of this Agreement.
6.4 During a paid up Support Term for a Product, to the extent the Product, as
updated to its most recent Update, no longer operates with the most recent
operating system version running on the hardware on which the Product is
installed (which hardware is the hardware the Product was originally
specified by Licensor to run on), then Licensor shall support the last
Major Release of the Product which ran on such operating system for a
period of one year from the release of that Major Release at which point
Amexco must install the then current Major Release (or a customized version
thereof which Amexco engages Licensor to develop under the Consulting
Agreement and the related Work Statement which the parties mutually agree
to be installed in lieu of the new Major Release).
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 14 -
6.5 During a paid up Support Term for a Product, Licensor shall provide
reasonable remote technical assistance and consultation to Amexco with
respect to Product issues that cause the Product to fail to perform in
accordance with the Documentation at any time during Normal Working Hours
in accordance with the terms of this Article 6.
6.6 During a paid up Support Term for a Product, Licensor shall provide revised
and/or updated Documentation to correspond to any changes (including
Updates) made to the Products with the applicable Update.
6.7 If Amexco attempts to perform maintenance and/or repair service on the
Product and, as a result, further service is required to restore the
Product to proper operating condition, such service shall be provided by
Licensor hereunder; provided, however, that Licensor shall have the right
to charge Amexco for such services at the rates set forth on Exhibit D of
this Agreement (or to the extent the services are considered professional
services under the Consulting Agreement by Licensor, then the rates set
forth in this Agreement) all plus reimbursement for travel, living and
lodging, if any, in accordance with Amexco's travel policy.
ARTICLE 7: INVOICING PAYMENT; DISCOUNTS
--------- ----------------------------
7.1 The License fee set forth on the Schedule for each Product and ▇▇▇▇ Type
Implementation is due and payable [**] percent ([**]%) upon execution and
submission of a Schedule by Amexco to Licensor, unless otherwise provided
in the Schedule. With respect to the Initial Order Schedule, [**]% of the
License Fees are refundable in accordance with the terms of the Initial
Order Schedule as set forth in Exhibit B to this Agreement. With respect
to future order Schedules, License Fees are nonrefundable for any reason
unless otherwise provided in this Schedule.
7.2 License Fees do not include the provision of the one year Warranty as
described in Section 8.2(b) or Maintenance and Support Services as
described in Section 6. To the extent Amexco is purchasing a one year
Warranty or Maintenance and Support Services for a Product under a
Schedule, a separate Warranty Fee or Maintenance Fee is indicated on the
Schedule. The Warranty Fee for a Product or a ▇▇▇▇ Type Implementation is
due and payable [**] percent ([**]%) on the Warranty Start Date. The
Maintenance Fee for a Product is due and payable [**] percent ([**]%)
annually in advance 30 days prior to expiration of the applicable one year
Warranty Period, unless otherwise provided in the Schedule. The
Maintenance Fee for a ▇▇▇▇ Type Implementation is due and payable [**]
percent ([**]%) annually in advance [**] days prior to expiration of the
applicable [**] Warranty Period, unless otherwise provided in the Schedule.
The annual renewal fee for Maintenance and Support Services is due and
payable [**] percent ([**]%) [**] days
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 15 -
prior to expiration of the applicable annual Maintenance and Support
Services period. Licensor will invoice Amexco for Maintenance Fees [**]
days prior to expiration of the applicable Warranty period or Maintenance
and Support Term.
Warranty Fees and Maintenance Fees paid to Licensor are non-refundable,
except termination by Amexco for cause of the Warranty or Maintenance or
Support Services provisions of this Agreement in accordance with the terms
of Article 11, in which case Licensor will provide a pro rata refund of the
[**] Warranty Fee or Maintenance Fee or Maintenance Fee based on the number
of months remaining in the term for such services.
7.3 To the extent that there is no reference to Licensor issuing an invoice in
Section 7 above then such payments shall be due upon receipt of invoice and
Licensor will invoice upon the occurrence of the event triggering payment
as set forth above. To the extent that there is reference to Licensor
issuing an invoice for payment in Section 7 above, then such invoice shall
be payable within [**] ([**]) days after its receipt, unless otherwise
specified herein. All fees are expressed in US dollars and all payments
will be made in US dollars. All shipments of Updates, if any, and
Documentation, if any, will be FOB edocs, Wayland, MA. Reasonable shipping
and handling charges will be invoiced to Amexco with shipment. To the
extent that Amexco believes there is an error in any invoice received from
Licensor, Amexco will promptly notify Licensor of such error and provide
Licensor with the requested corrections and back-up, if any. Provided that
Licensor is in agreement with such corrections, Licensor will promptly
reissue the corrected invoice and payment will be due within [**] days of
receipt thereof less the number of days beyond [**] days it took Amexco to
provide Licensor with the requested corrections and back-up, if any. The
parties agree to work together in good faith to quickly resolve the
aforementioned invoice issues. However, Amexco agrees to pay the completely
uncontested amount, if any, of the invoice which Amexco believes has an
error within the original timeframe set forth above.
7.4 Amexco shall be entitled to the discounted License Fees, Warranty Fees and
Maintenance Fees set forth on Exhibit D for Products and ▇▇▇▇ Type
Implementations, subject to the terms of this Agreement and Exhibit D,
including the right to increase such fees in accordance with the terms of
Exhibit D.
7.4.1 To the extent that Licensor releases a new software product in the
future, Amexco may license such software at the US list price less the
applicable discount set forth below:
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 16 -
---------------------------------------------------------------------------
Cumulative License Fees
at US list price for a
New Software Product* Discount off a US list price
---------------------------------------------------------------------------
$[**] [**]%
---------------------------------------------------------------------------
$[**] [**]%
---------------------------------------------------------------------------
$[**] [**]%
---------------------------------------------------------------------------
$[**] [**]%
---------------------------------------------------------------------------
Pricing operates on a cumulative per product basis (e.g., if Amexco places
an order for $[**] for licenses for one type of new software product only,
then the [**]% discount will apply to the entire $[**] order). These fees
are subject to increase in accordance with the terms of Exhibit D under the
heading INCREASE IN FEES OVER TIME and INTERNATIONAL UPLIFT PRICING.
ARTICLE 8: WARRANTIES; LIMITATIONS OF LIABILITIES; LIMITATIONS OF REMEDIES
--------- ---------------------------------------------------------------
8.1 Licensor warrants to Amexco that: (i) Licensor has the right to furnish
the Products and Documentation, and perform the services as specified in
this Agreement ("Product Materials and Services") covered hereunder free of
all liens, claims, encumbrances and other restrictions: (ii) the Product
Materials and Services furnished by Licensor and/or Amexco's use of the
same hereunder do not violate or infringe the rights of any third party or
the laws or regulations of any governmental or judicial authority; (iii)
Amexco shall be entitled to use and enjoy the benefit of the Product
Materials and Services, subject to and in accordance with this Agreement;
and (iv) Amexco's use and possession of the Product Materials and Services
hereunder, shall not be adversely affected, interrupted or disturbed by
Licensor or any entity asserting a claim under or through Licensor.
8.2 (a) Subject to the limitations set forth in Section 6.3(b), Licensor
warrants that for a period of [**] ([**]) days from the Warranty Start Date
(as defined in Section 8.2(b)) of a Product, the media on which the Product
is delivered shall be free from any defects in materials, subject to normal
use and service.
(b) In addition to the foregoing defective media warranty, Amexco may
purchase a further warranty for the Product as described in this paragraph
(the "Warranty") commencing on the Warranty Start Date (as defined below)
and ending [**] thereafter (or such other warranty period as is purchased
and specified in the Schedule) (the "Warranty Period"). With respect to
the Initial Order Schedule, the Warranty Start Date for each individual
Product is the earlier to occur of (a) the first day that Amexco contacts
Licensor for Warranty Services with respect to the Product or (b) the first
day Amexco goes into production with the Product. With respect to the
Initial Order Schedule, the Warranty Start Date for each
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 17 -
individual ▇▇▇▇ Type Implementation is the earlier to occur of (a) the
first day that Amexco contacts Licensor for Warranty Services with respect
to the ▇▇▇▇ Type Implementation or (b) the first day Amexco goes into
production with the ▇▇▇▇ Type Implementation. With respect to future order
Schedules, the Warranty Start Date for each individual Product is the
earliest to occur of (a) the first day that Amexco contacts Licensor for
Warranty Services with respect to the Product or (b) the first day Amexco
goes into production with the Product or (c) [**] days from shipment of the
Product. With respect to future order Schedules, the Warranty Start Date
for each individual ▇▇▇▇ Type Implementation is upon receipt and acceptance
by Licensor of the Schedule under which the ▇▇▇▇ Type Implementation is
being ordered. Subject to the limitations set forth in Section 6.3(b),
during the paid up Warranty Period for a Product Licensor warrants that:
(i) the Product shall conform to and operate in accordance with the
Documentation for such Product, and (ii) the Documentation shall faithfully
and accurately reflect the Products provided to Amexco hereunder. In the
Event that Amexco purchases a Warranty for a Customized Product (as defined
in the Schedule) then subject to the limitations set forth in Section
6.3(b), during the paid up Warranty Period for a Customized Product
Licensor warrants that: (i) the Customized Product shall conform to and
operate in accordance with the Customized Product Acceptance Test Criteria
for the Customized Product set forth in the Schedule (the "Customized
Product Specifications") (and such Warranty shall otherwise be subject to
the same terms and conditions as those for the Warranty for the Product).
The Warranty Start Date and Warranty Fee for the Customized Product shall
be as set forth in the Schedule to the extent there is any warranty
purchased for such Customized Product, as noted on the Schedule. During the
paid up Warranty Period for a Product (or a Customized Product, to the
extent such Warranty is purchased for a Customized Product under a
Schedule), Licensor's sole obligation under this Section consists of
providing the Maintenance and Support Services described in Section 6 for
the Product (or Customized Product as applicable) (such services being
referred to during the Warranty Period as the "Warranty Services").
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 18 -
8.3 During a paid-up Warranty Period or Support Term with Licensor for a
Product, Licensor warrants that: (i) the Products have been tested and are
fully capable of providing accurate results using data having date ranges
spanning the twentieth (20th) and twenty first (21st) centuries (e.g.,
years 1900-2100). Without limiting the generality of the foregoing,
Licensor warrants that the Product shall (a) manage and manipulate data
involving all dates from the 20th and 21st centuries without functional or
data abnormality related to such dates; (b) manage and manipulate data
involving all dates from the 20th and 21st centuries without inaccurate
results related to such dates; (c) have user interfaces and data fields
formatted to distinguish between dates from the 20th and 21st centuries;
and (d) represent all data related to include indications of the
millennium, century, and decade as well as the actual year.
Notwithstanding the foregoing, this warranty is subject to the limitations
set forth in Section 6.3(b) and shall not apply to any problems associated
with Amexco or third party software, firmware, products or other technology
with which the Product is combined, exchanges data and/or interoperates.
The foregoing warranty is also conditioned upon Amexco installing the most
recently available Update to the Product.
8.4 During the paid up Warranty Period for a Product and subject to the
limitations set forth in Section 6.3(b), Licensor agrees to use
commercially reasonable efforts to correct and repair any malfunction,
defect or nonconformity which prevents such Product from performing in
accordance with the Documentation at no additional charge to Amexco in
accordance with the terms of Section 8 hereof. During the paid up Warranty
Period for a Customized Product and subject to the limitations set forth in
Section 6.3(b), Licensor agrees it shall correct and repair any
malfunction, defect or nonconformity which prevents such Customized Product
from performing in accordance with the Customized Product Specifications at
no additional charge to Amexco in accordance with the terms of Section 8
hereof.
8.5 Licensor agrees that upon the expiration of the Warranty Period, and in
consideration of Amexco's payment of the applicable Maintenance Fees
hereunder annually in advance and compliance by Amexco with the terms of
this Agreement, it shall perform the Maintenance and Support Services as
specified in this Agreement.
8.6 To the extent that Updates to the Products provided in Amexco hereunder
degrade, impair or otherwise adversely affect the performance or operation
of the Products provided hereunder such that the Products fail to perform
in accordance with their then current Documentation then, provided Amexco
is under a paid-up Warranty Period or Support Term with Licensor for that
Product, Licensor shall use commercially reasonable efforts to correct and
repair any malfunction, defect or nonconformity which prevents such Product
from performing in accordance with the Documentation at no additional
charge to Amexco in accordance with the terms hereof.
8.7 During a paid-up Warranty Period or Support Team for a Product Licensor
warrants that any maintenance or other services provided by Licensor under
this Agreement shall be performed in a high quality, professional manner by
qualified personnel. Licensor personnel will observe and comply with
Amexco's security procedures, rules, regulations, policies, working hours
and holiday schedules. In performing services at Amexco
- 19 -
locations, Licensor personnel will use best efforts to minimize any
disruption to Amexco's normal business operations.
8.8 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR
DOES NOT WARRANT THAT THE OPERATION OF ANY PRODUCT, INCLUDING UPDATES,
DELIVERED HEREUNDER (OR CUSTOMIZED PRODUCT TO THE EXTENT COVERED HEREUNDER)
WILL BE UNINTERRUPTED OR ERROR-FREE PROVIDED THAT THIS DOES NOT ELIMINATE
LICENSOR'S OBLIGATION TO PERFORM WARRANTY OR MAINTENANCE AND SUPPORT
SERVICES DURING A PAID-UP TERM IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT.
8.9 THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF SECTION 8.1 AS IT RELATES TO
CLAIMS BROUGHT BY THIRD PARTIES SHALL BE THE INDEMNIFICATION OBLIGATIONS AS
SET FORTH IN ARTICLE 9 OF THIS AGREEMENT. THE SOLE AND EXCLUSIVE REMEDY OF
AMEXCO FOR A BREACH OF SECTION 8.2(a) SHALL BE LIMITED TO REPLACEMENT OF
ANY DEFECTIVE MEDIA. THE SOLE AND EXCLUSIVE REMEDY OF AMEXCO FOR A BREACH
OF SECTIONS 8.2(B), 8.3 AND 8.4 SHALL BE FOR LICENSOR TO REPAIR OR REPLACE
THE PRODUCT AS SET FORTH THEREIN, AT LICENSOR'S OPTION. THE SOLE AND
EXCLUSIVE REMEDY OF AMEXCO FOR A BREACH OF SECTIONS 8.5, 8.6 AND 8.7 WHILE
UNDER WARRANTY FOR THE PRODUCT SHALL BE FOR LICENSOR TO REPAIR OR REPLACE
THE PRODUCT AS SET FORTH THEREIN, AT LICENSOR'S OPTION. THE SOLE AND
EXCLUSIVE REMEDY OF AMEXCO FOR A BREACH OF SECTIONS 8.5, 8.6 AND 8.7 WHILE
COVERED BY SUPPORT SERVICES FOR THE PRODUCT SHALL BE AS SET FORTH WITH
RESPECT TO BREACH IN THE MAINTENANCE SECTION OF THIS AGREEMENT.
ARTICLE 9: INTELLECTUAL PROPERTY INFRINGEMENT
--------- ----------------------------------
9.1 Licensor agrees to defend and/or handle at its own expense, any claim or
action against any Amexco Entity by a third party for actual or alleged
infringement of such third party's intellectual or industrial property
right, including, without limitation, trademarks, service marks, patents,
copyrights, misappropriation of trade secrets or any similar proprietary
rights, based upon the Product Materials and Services furnished hereunder
by Licensor or based on Amexco's use thereof. Licensor further agrees to
indemnify and hold Amexco harmless from and against any and all judgments
(or settlements agreed to by Licensor) awarded against any Amexco Entity in
favor of such third party as a result of such claim or action and related
court costs and litigation expenses (including reasonable attorney's fees).
Licensor shall have the sole right to conduct the defense of any such claim
or action and all negotiations for its settlement or compromise, unless
otherwise mutually agreed to in writing.
- 20 -
Such indemnification obligation shall not apply to any claim based on (i)
software not owned or developed by or on behalf of Licensor, (ii) the
combination of the Product with other products not owned or developed by or
on behalf of Licensor provided the infringement arises in connection with
the combination, (iii) software supplied by Licensor in accordance with
Amexco's designs, specifications, or instructions where Amexco has required
Licensor to ignore Licensor's suggestions for designs, specifications or
instructions which Licensor recommends as non-infringing and to us Amexco's
instead, (iv) arising from the failure of Amexco to use an updated or
corrected Product provided by Licensor to the extent is designed to
eliminate the alleged infringement (and provided Licensor provides
installation thereof at no charge), or (v) arising from the failure of
Amexco to use the Product for its intended purposes.
9.2 If any Product Materials and/or Services become, or in Licensor's opinion
are likely to become, the subject of any such claim or action, then,
Licensor, at its expense may either: (i) procure for Amexco the right to
continue using same as contemplated hereunder; (ii) modify same to render
same non-infringing (provided such modification does not adversely affect
Amexco's use as contemplated hereunder); or (iii) replace same with equally
suitable, functionally equivalent, compatible, non-infringing products,
materials and/or services. If none of the foregoing are commercially
practicable, Licensor having used all commercially reasonable efforts, then
Licensor shall have the right to terminate the Schedule(s) involved and
receive back the allegedly infringing Product, and Licensor shall pay
Amexco an amount equal to all License Fees paid in respect of such Product
(less a depreciation factor of [**]% per annum commencing on the date on
which the Product was installed unless a shorter License Term applies).
ARTICLE 10: CONFIDENTIAL INFORMATION
---------- ------------------------
10.1 Each party agrees to regard and preserve as confidential all information
related to the business and activities of the other party (and in the case
of Amexco, the Amexco Entities), including information a party provides the
other regarding their customers, clients, suppliers and other entities with
whom the party does business and regarding current and future product and
technology, that may be obtained by a party from the other party (the
"Confidential Information"). Upon request of the disclosing party, the
receiving party agrees to return within [**] days all copies in all forms
of any Confidential Information which was previously obtained by it, or if
approved by the party owning Confidential Information, provide
certification of destruction thereof within [**] days.
Each party agrees to hold the Confidential Information in trust and
confidence for the other party and not to disclose such information to any
person, firm or enterprise, or use (directly or indirectly) any such
information for its own benefit or the benefit of any other party, unless
authorized by the party whose Confidential Information it is in writing,
and even then, to limit access to and disclosure of such confidential
information to the receiving
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 21 -
party's employees and consultant's on a "need to know" basis only for
purposes of performing the receiving party's duties under this Agreement or
the Consulting Agreement and provided any such employee or consultant is
bound by a confidentiality agreement with the receiving party containing
terms comparable to the terms of this section.
10.2 The provision of Confidential Information by one party to another will not
be construed as creating, conveying, transferring, granting or conferring
upon the other, any rights, license or authority in or to the information
exchanged or otherwise. Each party agrees that any and all Confidential
Information disclosed to it by the other party is and shall remain the
proprietary and confidential information and property of the disclosing
party. Each party agrees to insure, by agreement, instruction or otherwise,
compliance with these confidentiality obligations by its employees, agents,
consultants and others who have permitted access or use of the Confidential
Information of the other party. Each party agrees that if there is a breach
or threatened breach of the provisions of this Agreement, the other party
will have no adequate remedy in money or damages and accordingly shall be
entitled to injunctive relief; provided, however, no specification in this
Agreement of any particular remedy shall be construed as a waiver or
prohibition of any other remedies permitted under this Agreement in the
event of a breach or threatened breach of this section of this Agreement.
10.3 Information shall not be considered confidential to the extent, but only to
the extent, that such information is: (i) already known to the receiving
party free of any restriction at the time it is obtained from the other
party; (ii) subsequently learned from an independent third party free of
any restriction and without breach of this Agreement; (iii) is or becomes
publicly available through no wrongful act of the receiving party; (iv) is
independently developed by one party without reference to any Confidential
Information of the other; or (v) required to be disclosed pursuant to a
requirement of a governmental agency or law so long as the parties provide
each other with timely written prior notice of such requirements.
ARTICLE 11: GENERAL
---------- -------
TERM AND TERMINATION: This Agreement shall commence as of the Effective
--------------------
Date and continue thereafter for a period of [**], unless terminated as provided
hereunder. This Agreement may be extended by Amexco for [**] additional [**]
periods (unless terminated as provided hereunder) by Amexco provided Amexco
gives notice thereof to Licensor of each such extension [**] prior to expiration
of each such [**] term. Each Schedule shall become binding when duly executed
by both parties and shall continue thereafter unless terminated as permitted
hereunder. Notice of termination of any Schedule shall not be considered notice
of termination of this Agreement. The Agreement shall be deemed to remain in
effect with respect to any Schedules or portions thereof which remain in effect
hereunder. In the event that the Agreement or a
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 22 -
Schedule is terminated in accordance with the terms hereof, (a) any unexpected
Warranty Period or Support Term shall remain in effect until the end of its
paid-up term unless terminated in accordance with the terms of this Agreement
and (b) any previously granted license in Products or ▇▇▇▇ Type Implementations
shall remain in effect unless terminated by Licensor in accordance with the
terms of this Agreement.
TAXES: Amexco agrees to pay all taxes levied against or upon the Products,
-----
Updates and ▇▇▇▇ Type Implementations including withholding taxes with respect
to the Product and Updates only, and any services or their use hereunder, along
with duties and customs charges imposed on the licensing of the Products,
Updates and ▇▇▇▇ Type Implementations, and the purchase of services under this
Agreement (collectively, the "Taxes"), exclusive, however, of taxes based on
Licensor's income, which taxes shall be paid by Licensor. If any tax for which
Amexco is responsible hereunder is paid by Licensor, Amexco will reimburse
Licensor upon Amexco's receipt of proof of payment.
LIMITATION OF LIABILITY: REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN
-----------------------
FAILS OF ITS ESSENTIAL PURPOSE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW,
AMEXCO SHALL NOT HAVE ANY CLAIM (EXCEPT FOR THE REMEDIES AGAINST LICENSOR
SPECIFICALLY SET FORTH IN ARTICLES 8 AND 9 OF THIS AGREEMENT) AGAINST LICENSOR,
ITS AFFILIATES, OFFICERS OR EMPLOYEES OR THE MANUFACTURERS, LICENSORS,
SUBCONTRACTORS OR SUPPLIERS OF THE PRODUCT, WHETHER BASED ON CONTRACT,
NEGLIGENCE, PRODUCT LIABILITY, TRADE PRACTICES, OR OTHERWISE. NOTWITHSTANDING
THE FOREGOING AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
SHALL THE LIABILITY, IF ANY, OF LICENSOR, ITS AFFILIATES, OFFICERS, EMPLOYEES,
LICENSORS, MANUFACTURERS, SUBCONTRACTORS OR SUPPLIERS FOR DAMAGES OF ANY TYPE
RELATING TO THE PRODUCT OR OTHERWISE ARISING OUT OF, RELATED TO OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT OR THE CONSULTING AGREEMENT EXCEED IN THE
AGGREGATE FOR ALL OCCURRENCES THE PAID IN LICENSE FEES HEREUNDER PLUS THE PAID
IN PROFESSIONAL SERVICES FEES UNDER THE CONSULTING AGREEMENT. REGARDLESS OF THE
FORM OF ACTION, WHETHER BASED ON CONTRACT, NEGLIGENCE, PRODUCT LIABILITY, TRADE
PRACTICES OR OTHERWISE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW IN NO EVENT
SHALL EITHER PARTY BE LIABLE, ONE TO THE OTHER, FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OTHER THAN THOSE ARISING FROM A MISAPPROPRIATION OF
LICENSOR'S INTELLECTUAL PROPERTY RIGHTS OR A BREACH OF THE CONFIDENTIALITY
PROVISIONS OR ARTICLE 10 HEREOF.
EXCUSABLE DELAYS: Except for payment obligations of Amexco hereunder,
----------------
neither party shall be liable or deemed to be in default for any delay or
failure in performance under this
- 23 -
Agreement or interruption of services resulting directly or indirectly from acts
of God, civil or military authority, war, riots, civil disturbances, accidents,
fire, earthquakes, flood, strikes, lockouts, labor disturbances, court or
governmental order, or any other cause beyond the reasonable control of such
party. Each party agrees to provide the other with notice upon becoming aware of
an event of force majeure, such notice to contain details of the circumstances
giving rise to the event of force majeure.
MATERIAL BREACH:
---------------
(a) Warranty Services Under Article 8 and Maintenance and Support Services
----------------------------------------------------------------------
Under Article 6. With respect to the Warranty Services and
---------------
Maintenance and Support Services provided by Licensor to Amexco under
Articles 8 and 6 respectively of this Agreement, in the event of any
material breach of either Article by one party, the other party may
terminate all the Warranty Services and Maintenance and Support
Services being provided by giving [**] ([**]) days' written notice
thereof; provided, however, that any such termination shall not be
effective if the party in breach has cured the breach of which it has
been notified prior to the expiration of said [**] ([**]) days. Upon
such termination by Amexco, Licensor shall refund to Amexco the pro
rata portion of the [**] Warranty Fee or Maintenance Fee based on the
number of months remaining in the [**] Warranty Period or Support Term
for each Product and ▇▇▇▇ Type Implementation. Upon such termination
by either party Licensor shall have no further obligation to provide
Warranty Services and Maintenance and Support Services to Amexco for
each Product and ▇▇▇▇ Type Implementation.
(b) Material Breach other than per Subsection (a) of this Material Breach
----------------------------------------------------------------------
Section. With respect to a material breach of this Agreement or a
-------
Schedule by Amexco, Licensor may terminate one or more of the
Schedules and/or the Agreement, including without limitation Articles
6 and 8 hereof, as Licensor so elects, by giving ([**]) days' written
notice thereof to Amexco; provided, however, that any such termination
shall not be effective if Amexco has cured the breach of which it has
been notified prior to the expiration of said [**] ([**]) days. Upon
any termination of one or more Schedules and/or the Agreement by
Licensor as set forth above, Amexco shall, at Licensor's election,
either (i) return all copies of the Product related to the terminated
Schedules in its possession or control in any form to Licensor or (ii)
destroy all copies of the Product related to the terminated Schedules
in its possession or control. An officer of Amexco shall notify
Licensor in writing that such return or destruction has occurred.
NOTICES: Unless otherwise specified all notices shall be in writing and
-------
delivered personally or mailed, first class mail, postage prepaid, to the
addresses of the parties set forth at the beginning of this Agreement, to the
attention of the undersigned: provided, however, that a copy of any Licensor
notice of material breach to Amexco shall also be sent to the Office of the
General
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 24 -
Counsel, World Financial Center, American Express Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. As to any Schedule, notices shall also be
sent to the signatories of the Schedule involved. Either party may change the
address(es) or the addressee(s) for notice hereunder upon written notice to the
other. All notices shall be deemed given on the date delivered or when placed in
the mail as specified herein.
ADVERTISING OR PUBLICITY: Other than as set forth below, neither party
------------------------
shall use the other's name or marks or refer to or identify the other party in
advertising or publicity releases or promotional or marketing correspondence to
others without first securing the written consent of such other party.
Notwithstanding anything herein to the contrary, Licensor may use Amexco's name
to identify Amexco as a customer of Licensor in materials to be provided to
investors and potential investors in Licensor, and may disclose this Agreement,
related Schedules, and the terms herein in the event the Licensor undertakes to
file a registration statement under the Securities Act of 1933, as amended, or
as may otherwise be required under securities laws; provided, however, that
Licensor shall use its best efforts to preclude disclosure of the terms of this
Agreement in accordance with the rules and regulations of the Securities and
Exchange commission by means of an application for confidential treatment and
Licensor shall consult with Amexco prior to any such submission and take into
account Amexco's view with regard thereto. In addition, Licensor will consult
with Amexco prior to disclosure of its relationship with Amexco in a form S-1 or
any successor SEC filing thereto with respect to the portion of the S-1 or
successor SEC filing related to the relationship between Amexco and Licensor.
ASSIGNMENT: Neither party may assign this Agreement, any Schedule and/or
----------
any rights and/or obligations hereunder without the written consent of the other
party and any such attempted assignment shall be void; provided, however, that
Amexco may assign this Agreement, any Schedule and/or any of its rights and/or
obligations hereunder to any Amexco Entity upon written notice to Licensor
without the consent of Licensor and provided further that (a) Licensor may
utilize Technology Providers, Inc. as a subcontractor to perform its technical
duties and obligations under this Agreement provided that Licensor remains
primarily liable for any failure of such subcontractor to perform in accordance
with the terms of this Agreement; (b) either party may make an assignment of
this Agreement pursuant to (x) a merger, (y) a sale of greater than [**] percent
([**]%) of its assets; or (z) a sale of greater than [**]% of its outstanding
stock and (c) either party (in the case of Amexco to an Amexco Entity only) may
make an assignment to an affiliate or subsidiary, provided that the assigning
party remains primarily liable for any failure of such affiliate to perform in
accordance with the terms of this Agreement. Each party shall cause its
permitted assigns to be bound by the terms of this Agreement and the relevant
Schedules. Any attempted non-permitted assignment, transfer or delegation in
contravention of this Section of the Agreement shall be null and void. This
Agreement shall insure to the benefit of the parties hereto and their permitted
successors and assigns.
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 25 -
GOVERNING LAW: In all respects this Agreement shall be governed by the
-------------
substantive laws of the State of New York without regard to conflict of law
principles.
MODIFICATION, AMENDMENT, SUPPLEMENT AND WAIVER: No modification, course of
----------------------------------------------
conduct, amendment, supplement to or waiver of this Agreement, any Schedule, or
any provisions hereof shall be binding upon the parties unless made in writing
and duly signed by both parties. At no time shall any failure or delay by
either party in enforcing any provisions, exercising any option, or requiring
performance of any provisions, be construed to be a waiver of same.
EXPORT RESTRICTIONS: Amexco will not knowingly export or re-export,
-------------------
directly or indirectly, any technical data (as defined in the U.S. Export
Administration Regulations) produced or provided under this Agreement,
including, without limitation, the Products, or export or re-export, directly or
indirectly, any direct product of such technical data, including software, to a
destination to which such export or re-export is restricted or prohibited by
U.S. or non-U.S. law, without obtaining prior authorization form U.S. Department
of Commerce and other competent government authorities to the extent required by
those laws.
SEVERABILITY: If any of the provisions of this Agreement are held invalid,
------------
illegal or unenforceable, the remaining provisions shall be unimpaired.
HEADINGS: Headings are for reference and shall not affect the meaning of
--------
any of the provisions of this Agreement.
ENTIRE AGREEMENT: The Exhibits, Schedules and attachments to this
----------------
Agreement are incorporated by this reference and shall constitute part of this
Agreement. This Agreement constitutes the entire agreement between the parties
and supersedes all previous agreements, promises, proposals, representations,
understandings and negotiations, whether written or oral, between the parties
respecting the subject matter hereof.
- 26 -
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day, month and year first written above.
EDOCS, INC. AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: [**] By: [**]
---------------------------- ----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: [**]
-------------------------- --------------------------
(Type or Print) (Type or Print)
Title: CEO Title: [**]
------------------------- -------------------------
Date: [**] Date: [**]
-------------------------- --------------------------
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 27 -
Exhibit A
(SAMPLE SCHEDULE ORDER FORM ONLY)
---------------------------------
SCHEDULE
--------
Schedule Number: __________ Dated: [**]
to
Agreement Number:
This Schedule is issued pursuant to the above-referenced Standalone License
Agreement dated [**] (the "Agreement"), between American Express Travel Related
Services Company, Inc. and the Licensor specified below. Any term not otherwise
defined herein shall have the meaning specified in the Agreement. Amexco hereby
orders the Products. ▇▇▇▇ Type Implementations and Warranty Services related
thereto as set forth below in accordance with the terms of the Agreement and
this Schedule
SHIP TO ADDRESS FOR PRODUCT-
--------------------------------------------------------------------------------
INSTALLATION SITE FOR PRODUCT-
--------------------------------------------------------------------------------
ANTICIPATED SHIP DATE FOR PRODUCT-
--------------------------------------------------------------------------------
SCHEDULED DELIVERY DATE FOR PRODUCT-
--------------------------------------------------------------------------------
ORDER DATE FOR ▇▇▇▇ TYPE IMPLEMENTATION [**] PACK-
--------------------------------------------------------------------------------
PRODUCTS AND ▇▇▇▇ TYPE IMPLEMENTATIONS ORDERED-See table below
--------------------------------------------------------------------------------
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 28 -
-----------------------------------------------------------------------------------------------------------------------------------
A B C D E F G H
-----------------------------------------------------------------------------------------------------------------------------------
Products License Fee Per Quantity of Total License License Fee Quantity of Total License Total License
Product Product Fee for Per Each ▇▇▇▇ ▇▇▇▇ Type Fee for ▇▇▇▇ Fee (Sum of
Ordered* Product Type Implementation Type Columns D
Ordered Implementation [Five] Packs Implementation and G)
(column B X [Five] Pack Ordered*** [Five] Packs
column C) Ordered
(column E X
column F)
-----------------------------------------------------------------------------------------------------------------------------------
BillDirect
Software
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
* Server name, serial number and server location where each copy of BillDirect
Production System Software portion of Product being licensed for production
server should be noted below if available at the time of issuing this
Schedule. Otherwise should be provided as soon as available in writing to
Licensor.
----------------------------------------------------------------------------------------------
BillDirect Server Name Server Serial Location of Server Server Type
Production Where it is to Number Where it Where it is to be
Server Software be Installed is to be Installed Installed
Portion of
Product to be
installed on
production
server-Copy
Number
----------------------------------------------------------------------------------------------
[**]
----------------------------------------------------------------------------------------------
[**]
----------------------------------------------------------------------------------------------
[**]
----------------------------------------------------------------------------------------------
[**]
----------------------------------------------------------------------------------------------
[**]
----------------------------------------------------------------------------------------------
[**]
----------------------------------------------------------------------------------------------
*** Description of each ▇▇▇▇ Type Implementation should be noted below if
available at the time of issuing this Schedule. Otherwise should be
provided as soon as available in writing to Licensor.
- 29 -
--------------------------------------------------------------------------------
▇▇▇▇ Type ▇▇▇▇ Type Implementation Description
Implementation
Number
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TOTAL LICENSE FEE FOR PRODUCTS AND ▇▇▇▇ TYPE IMPLEMENTATIONS-See table above-
$__________
PAYMENT TERMS FOR LICENSE FEE-[**]% non-refundable down-payment payable upon
-----------------------------
submission of this Schedule to Licensor
[**] WARRANTY FEE-_____% of License Fee per Product ordered under this Schedule
-----------------
plus _____% of License Fe for all ▇▇▇▇ Type Implementations ordered under this
Schedule, subject to increase in accordance with the terms of the Agreement
PAYMENT TERMS FOR [**] WARRANTY FEE-With respect to a Product or a ▇▇▇▇ Type
-----------------------------------
Implementation, [**]% payable on the Warranty Start Date (as defined below) for
that Product or ▇▇▇▇ Type Implementation.
WARRANTY START DATE-The Warranty Start Date for each individual Product is the
-------------------
earliest to occur of (a) the first day that Amexco contacts Licensor for
Warranty Services with respect to the Product or (b) the first day Amexco goes
into production with the Product or (c) [**] days from shipment of the Product.
The Warranty Start Date for each individual ▇▇▇▇ Type Implementation is upon
receipt and acceptance by Licensor of the Schedule under which the ▇▇▇▇ Type
Implementation is being ordered
ANNUAL MAINTENANCE FEE (commencing upon expiration of the applicable [**]
----------------------
Warranty)-_____% of License Fee per Product plus _____% of License Fee for all
▇▇▇▇ Type Implementations ordered under this Schedule, subject to increase in
accordance with the terms of the Agreement.
PAYMENT TERMS FOR ANNUAL MAINTENANCE FEE-payable annually in advance [**] days
----------------------------------------
prior to expiration of the applicable [**] Warranty Period and thereafter [**]
days prior to expiration of previous Support Term
INTERNATIONAL PRICING UPLIFT-Notwithstanding anything in this Schedule to the
----------------------------
contrary, to the extent that the Product is being installed at a site outside of
the US, the ▇▇▇▇ Type Implementation is being used with respect to a Product
installed at a site outside the US or the Warranty or
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 30 -
Maintenance and Support Services are being performed outside of the US, then all
related pricing shall be increased by [**]% of what the price would have
otherwise been under this Schedule.
ADDITIONAL GENERAL PRICE TERMS-All pricing and payments are in US dollars.
------------------------------
Amexco is responsible for Taxes as described in Article 11 of the Agreement
along with shipping and handling charges.
DOCUMENTATION-the documentation accompanying the Product, as updated by Licensor
-------------
from time to time.
Additional Provisions and Conditions (if any):
▇▇▇▇▇▇▇▇-▇▇▇▇▇.▇▇▇. American Express
Travel Related Services Company, Inc.
By: By:
---------------------------- ----------------------------
Name: Name:
-------------------------- --------------------------
(Type or Print) (Type or Print)
Title: Title:
------------------------- -------------------------
Date: Date:
-------------------------- --------------------------
- 31 -
EXHIBIT B
SCHEDULE FOR INITIAL ORDER
Schedule Number [**] Dated: [**]
to
Agreement Number: [**]
----
This Schedule is issued pursuant to the above-referenced Standalone License
Agreement dated [**] (the "Agreement"), between American Express Travel Related
Services Company, Inc. and the Licensor specified below. Any term not otherwise
defined herein shall have the meaning specified in the Agreement. Amexco hereby
orders the Products. ▇▇▇▇ Type Implementations and Warranty Services related
thereto as set forth below in accordance with the terms of the Agreement and
this Schedule.
SHIP TO ADDRESS FOR PRODUCT-All copies of BillDirect Software-[**] Attention:
---------------------------
[**]
INSTALLATION SITE FOR PRODUCT- For [**] production server copies of BillDirect
-----------------------------
Software-[**];
For [**] test/development server copies of BillDirect Software-[**]
ANTICIPATED SHIP DATE FOR PRODUCT-on or before [**]
---------------------------------
SCHEDULED DELIVERY DATE FOR PRODUCT-within [**] or [**] days after shipment
---------------------------------------------------------------------------
ORDER DATE FOR ▇▇▇▇ TYPE IMPLEMENTATION [**] PACK-on or before [**]
-------------------------------------------------------------------
PRODUCTS AND ▇▇▇▇ TYPE IMPLEMENTATIONS ORDERED-See table below
----------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
A B C D E F G H
-----------------------------------------------------------------------------------------------------------------------------------
Product License Fee Per Quantity of Total License License Fee Quantity of Total License Total License
Product For the Product Fee for Per Each ▇▇▇▇ ▇▇▇▇ Type Fee for ▇▇▇▇ Fee (Sum of
Initial Order Ordered*/** Product Type Implementation Type columns D
Ordered Implementation [Five] Packs Implementation and G)
(column B x [Five] Pack Ordered** [Five] Packs
column C) * Ordered
(column E x
column F)
-----------------------------------------------------------------------------------------------------------------------------------
BillDirect $[**] [**] $[**] $[**] [**] $[**] $[**]
Software
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 32 -
* The License Fee for the first copy only of BillDirect Software includes one
▇▇▇▇ Type Implementation. Licenses for additional ▇▇▇▇ Type Implementations
are purchased in packs of [**].
** The server name, serial number and server location where each copy of
BillDirect Production System Software portion of Product is being licensed
for production server should be noted below if available at the time of
issuing this Schedule. Otherwise should be provided as soon as available in
writing to Licensor.
------------------------------------------------------------------------------------------
▇▇▇▇ Direct: Server Name Server Serial Location of Server Server Type
Production Where it is Number Where it Where it is to be
Server to be is to be Installed
Software Portion Installed Installed
of Product to be
installed on
production
server-
Copy Number
------------------------------------------------------------------------------------------
[**] [**]
------------------------------------------------------------------------------------------
[**] [**]
------------------------------------------------------------------------------------------
[**] [**]
------------------------------------------------------------------------------------------
[**] [**]
------------------------------------------------------------------------------------------
[**] [**]
------------------------------------------------------------------------------------------
[**] [**]
------------------------------------------------------------------------------------------
In addition to the above [**] copies of the Product, Licensor agrees to license
Amexco [**] ([*]) additional copies of the Product for use on a single
test/development server and not for production purposes at [**] in accordance
with the terms of the Agreement. The server name, serial number and server
location where each copy of BillDirect Production System Software portion of the
Product is being licensed for test/development server should be noted below if
available at the time of issuing this Schedule. Otherwise should be provided as
soon as available in writing to Licensor.
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 33 -
-----------------------------------------------------------------------------------------------
▇▇▇▇ Direct: Server Name Server Serial Location of Server Type
Production Where it is to Number Where it Server
Server be is to be Where it is to
Software Portion Installed Installed be
of Product to be Installed
installed on
test/development
server-Copy
Number
-----------------------------------------------------------------------------------------------
[**] [**]
-----------------------------------------------------------------------------------------------
[**] [**]
-----------------------------------------------------------------------------------------------
[**] [**]
-----------------------------------------------------------------------------------------------
[**] [**]
-----------------------------------------------------------------------------------------------
[**] [**]
-----------------------------------------------------------------------------------------------
*** Description of each ▇▇▇▇ Type Implementation should be noted below if
available at the time of issuing this Schedule. Otherwise should be
provided as soon as available in writing to Licensor.
▇▇▇▇ Type ▇▇▇▇ Type Implementation Description
Implementation
Number
--------------------------------------------------------------------------------
[**]
--------------------------------------------------------------------------------
[**]
--------------------------------------------------------------------------------
[**]
--------------------------------------------------------------------------------
[**]
--------------------------------------------------------------------------------
[**]
--------------------------------------------------------------------------------
[**]
--------------------------------------------------------------------------------
TOTAL LICENSE FEE FOR PRODUCTS AND ▇▇▇▇ TYPE IMPLEMENTATIONS - See table above-
$[**]
PAYMENT TERMS FOR LICENSE FEE-$[**] non-refundable license fee payable on or
-----------------------------
before [**] (subject to refund of [**]% (all in accordance with the terms of
Appendix 1 to this Schedule) if the Customized Product(s) does not meet the
Customized Product Acceptance Test Criteria defined therein))
[**] WARRANTY FEE - [**]% of License Fee per Product ordered under this Schedule
-----------------
plus [**]% of License Fee for all ▇▇▇▇ Type Implementations ordered under this
Schedule, subject to increase in
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 34 -
accordance with the terms of the Agreement. The Warranty Fee under this Initial
Order Schedule includes Warranty on Customized Product per the standards set
forth in the Agreement.
PAYMENT TERMS FOR [**] WARRANTY FEE - With respect to a Product or ▇▇▇▇ Type
-----------------------------------
Implementation. [**]% payable on the Warranty Start Date (as defined below) for
that Product or ▇▇▇▇ Type Implementation and [**]% payable upon the Customized
Products meeting the Customized Product Acceptance Test Criteria described in
Appendix 1 to this Schedule.
COMMENCEMENT OF [**] WARRANTY - The Warranty Start Date for each Product and
-----------------------------
Customized Product is the earlier to occur of (a) the first day that Amexco
contacts Licensor for Warranty Services with respect to the Product or (b) the
first day Amexco goes into production with the Product. The Warranty Start Date
for each individual ▇▇▇▇ Type Implementation is the earlier to occur of (a) the
first day that Amexco contacts Licensor for Warranty Service with respect to the
▇▇▇▇ Type Implementation or (b) the first day Amexco goes into production with
the ▇▇▇▇ Type Implementation.
ANNUAL MAINTENANCE FEE (commencing upon expiration of the applicable [**]
-------------------------------------------------------------------------
Warranty) - [**]% of License Fee per Product plus [**]% of License Fee for all
---------
▇▇▇▇ Type Implementations ordered under this Schedule, subject to increase in
accordance with the terms of the Agreement. Maintenance Fee includes Support
Services on Customized Product per the standards set forth in the Agreement.
PAYMENT TERMS FOR ANNUAL MAINTENANCE FEE - payable annually in advance [**] days
----------------------------------------
prior to expiration of the applicable [**] Warranty Period and thereafter [**]
days prior to expiration of previous Support Term.
INTERNATIONAL PRICING UPLIFT - Notwithstanding anything in this Schedule to the
----------------------------
contrary, to the extent that the Product is being installed at a site outside of
the US. the ▇▇▇▇ Type Implementation is being used with respect to a Product
installed at a site outside the US or the Warranty or Maintenance and Support
Services are being performed outside of the US, then all related pricing shall
be increased by [**]% of what the price would have otherwise been under this
Schedule.
ADDITIONAL GENERAL PRICING TERMS - All pricing and payments are in US dollars.
--------------------------------
Amexco is responsible for Taxes as described in Article 11 of the Agreement
along with shipping and handling charges.
DOCUMENTATION - the documentation accompanying the Product, as updated by
-------------
Licensor from time to time.
DEFINITION OF CUSTOMIZED PRODUCT FOR PURPOSES OF THIS SCHEDULE AND APPENDIX 1
-----------------------------------------------------------------------------
HERETO - Customized Product consists of the following software which is being
------
developed by Licensor in accordance with the Consulting Agreement and the
related work Statement(s) as more specifically identified below:
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 35 -
--------------------------------------------------------------------------------
CUSTOMIZED PRODUCT
DEFINITION
--------------------------------------------------------------------------------
Customized Products as identified in Appendix B of the Statement of
Work-E-Statement Utility, Interactive Services, DC # [**] Dated [**] with a
revised date of [**]
--------------------------------------------------------------------------------
ACCEPTANCE TEST CRITERIA AND PROCEDURES FOR CUSTOMIZED PRODUCT ONLY: See
-------------------------------------------------------------------
attached Appendix 1 and Appendix 2 to this Schedule.
▇▇▇▇▇▇▇▇-▇▇▇▇▇.▇▇▇. American Express
Travel Related Services Company, Inc.
By: By:
---------------------------- ----------------------------
Name: Name:
-------------------------- --------------------------
(Type or Print) (Type or Print)
Title: Title:
------------------------- -------------------------
Date: Date:
-------------------------- --------------------------
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 36 -
APPENDIX 1 TO SCHEDULE FOR INITIAL ORDER DATED [**]
between American Express Travel Related Services Company, Inc. and edocs, Inc.
Acceptance Test Procedures and Rights and Duties for Customized Product
When a Customized Product (as defined in the Schedule) has been implemented and
installed at the Installation Site (the "Commencement Date') by Licensor all in
accordance with the Consulting Agreement and the related Work Statements (as
described in the Schedule), Licensor shall notify Amexco and Amexco shall
promptly commence acceptance testing of such Customized Product with such
assistance and support as reasonably necessary from Licensor personnel (at
Licensor's Professional Services rates and terms set forth under the Consulting
Agreement). The acceptance test shall be conducted for the purpose of
demonstrating that the Customized Product meets the Customized Product
Acceptance Test Criteria attached to this Schedule as Appendix 2. Once the
Customized Product has successfully passed this acceptance test, Amexco shall
notify Licensor in writing of acceptance of such Customized Product. If the
Customized Product does not meet the Customized Product Acceptance Test
Criteria, Amexco shall promptly notify Licensor, specifying in reasonable detail
in what respects the Customized Product has failed to meet such criteria.
Licensor shall promptly correct any deficiencies in the ability of the
Customized Product to meet the Customized Product Acceptance Test Criteria
disclosed by the acceptance test and Amexco shall repeat the test to determine
if the Customized Product has successfully met the Customized Product Acceptance
Test Criteria. Licensor and Amexco shall continue to work together in this
manner until the Customized Product Acceptance Test Criteria are met.
Notwithstanding the foregoing, if one or more of the Customized Products fail to
meet the Customized Product Acceptance Test Criteria within [**] days of the
Commencement Date (or such longer period as the parties mutually agree to),
Amexco shall have the option of receiving an aggregate refund of [**]% of the
License Fee of the Initial Order ($[**]). Such refund option shall expire within
[**] days after the end of the aforementioned [**] day period. The limited
refund rights set forth in this paragraph are Amexco's sole right and remedy in
the event that the Customized Product Acceptance Test Criteria are not met for a
particular Customized Product as set forth above and Licensor shall have no
further liability to Amexco nor any further refund obligations. Nothing in the
foregoing sentence prohibits Amexco from requiring Licensor to continue to
provide professional services under the Consulting Agreement and related
Schedule (as such term is defined therein as it relates to Schedules to the
Consulting Agreement) (at and subject to Licensor's Professional Services rates
and terms set forth under the Consulting Agreement, under which Schedule to the
Consulting Agreement Licensor will continue to attempt to cause the Customized
Product to meet the Customized Product Acceptance Criteria (but with Amexco
having no rights or remedies against Licensor should Licensor be unable to do
so).
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 37 -
Licensor will assist Amexco, at the request of Amexco, in conducting the
foregoing acceptance test at its professional services rates and terms under the
Consulting Agreement. In addition, Licensor has the right to conduct the
foregoing acceptance test at Amexco's site under the observation of Amexco at
its professional services rates and terms under the Consulting Agreement if
Licensor reasonable believes that the reason that Amexco is unable to pass the
acceptance test is due to operator errors. To the extent that the parties
mutually agree as a result thereof that the acceptance test has been passed, the
test shall be deemed passed. To the extent that the parties mutually agree as a
result thereof that the acceptance test has not been passed, the test shall be
deemed not to have been passed and the obligations of Amexco related thereto as
set forth in the previous paragraph shall apply. Nothing in the foregoing
sentence prohibits Amexco from requiring Licensor to continue to provide
professional services under the Consulting Agreement and related Schedule
thereto (at and subject to Licensor's Professional Services rates and terms set
forth under the Consulting Agreement, under which Schedule thereto Licensor will
continue to attempt to cause the Customized Product to meet the Customized
Product Acceptance Criteria (but with Amexco having no rights or remedies
against Licensor should Licensor be unable to do so).
If the parties disagree on the results of the test they have the right to
mutually agree to a neutral third party with industry experience to review the
results of the test and override the decision, if such third party so
determines.
To the extent that Licensor determines that Amexco's or any third party
hardware, software or services or other factors are responsible for the
inability of the customized Product to meet the Customized Product Acceptance
Test Criteria and Amexco agrees (acting in a commercially reasonable manner in
making such determination) then Licensor shall be deemed to have passed such
acceptance test, Licensor shall have no further obligations with respect thereto
to Amexco, and Amexco shall not have the refund rights described above. If the
parties disagree on this point then they have the right to mutually agree to a
neutral third party with industry experience to review these issues results of
the test and override the decision, if such third party so determines.
There are no acceptance tests with respect to the Product as defined in Section
1.3 of the Agreement.
- 38 -
APPENDIX 2 TO SCHEDULE FOR INITIAL ORDER DATED [**] BETWEEN
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. AND EDOCS, INC.
CUSTOMIZED PRODUCT ACCEPTANCE TEST CRITERIA
-------------------------------------------
See Section VIII of Statement of Work-E-Statement Utility, Interactive Services,
DC #[**] Dated [**] with a revised date of [**] for Customized Product
Acceptance Test Criteria.
To the extent that Amexco and Licensor mutually agree in writing to a change in
the Schedule to the Consulting Agreement related to the specifications and
requirements for the Customized Product then the parties must also mutually
agree to the revised Customized Product Acceptance test Criteria resulting from
such change. To the extent that the parties cannot mutually agree to the
revised Customized Product Acceptance Test Criteria resulting from such change
then Amexco must elect one of the following: (a) to not proceed with the updated
mutually agreed to Schedule to the Consulting Agreement, in which case Licensor
would continue to develop the Customized Product in accordance with the original
specifications and requirements set forth in the Schedule to the Consulting
Agreement as it existed before such amendment and conduct acceptance testing on
the Customized Product with the Customized Product Acceptance Test Criteria per
the terms of this Agreement or (b) to waive the acceptance testing on the
Customized Product under this Agreement, deem the test passed hereunder and
require Licensor to continue to provide professional services under the
Consulting Agreement and related amended Schedule (at and subject to Licensor's
Professional Services rates and terms set forth under the Consulting Agreement)
to attempt to cause the Customized Product to meet the specifications in such
amended Schedule (but with Amexco having no rights or remedies against Licensor
should Licensor be unable to do so).
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 39 -
EXHIBIT C
---------
Source Code Escrow Terms
------------------------
The following shall constitute the only condition under which Licensor shall
release the Source Code from escrow to Amexco (the "Release Condition"), subject
to the terms of this Exhibit C:
(a) Dissolution, liquidation or failure of Licensor to do business in
the ordinary course after which neither Licensor nor any other entity
thereafter performs the obligations from Amexco and a 30 day
opportunity to cure.
Licensor hereby grants to Amexco only a non-exclusive, non-transferable license
to use the Source Code (through its employees on a need to know basis who agree
to be bound by the terms of this Agreement), subject to the terms hereof, which
license: (i) shall be exercisable only upon the occurrence of the Release
Condition as set forth above; (ii) is worldwide, (iii) is non-exclusive: and
(iv) authorizes Amexco to understand, modify and use the Source Code released
per the above solely to perform those obligations required of Licensor set forth
in this Agreement that Licensor has failed or fails to perform.
Amexco shall return all the copies of the Source Code to Licensor and the
license above shall terminate on the earlier of (a) termination or expiration of
obligations under the Agreement or (b) when and if Licensor can demonstrate to
Amexco's reasonable satisfaction that Licensor or any other entity performing
Licensor's obligations hereunder has cured the Release Condition giving rise to
the release of the Source Code and is capable of resuming performance of its
obligations under the Agreement.
Amexco states that the Source Code is proprietary to Licensor and constitutes
Confidential Information of Licensor (and as such remains subject to the terms
of Article 9 of the Agreement regarding confidentiality) and that Licensor
retains ownership of the Source Code, including any modifications, extensions or
derivative works thereof. Amexco is not granted any rights to patents,
copyrights, trade secrets, trade names, trademarks, or any other rights with
respect to the Source Code. To the extent that Amexco creates any
modifications, extensions or derivative works of the Source Code in accordance
with the terms of this Agreement, then such modifications, extensions or
derivative works shall be the property of Licensor and Amexco hereby
automatically agrees to assign such ownership to Licensor provided however that
if Licensor ceases to exist and no other entity steps into Licensor's place then
Amexco may retain ownership of such modifications, extensions or derivative
works of the Source Code within 10 days of creation thereof. Amexco shall
during the term of this Agreement and at any time thereafter, take such further
action as Licensor deems reasonably necessary to give effect to the assignment
set forth in this paragraph.
- 40 -
EXHIBIT D
---------
PRICING FOR FUTURE ORDERS
LICENSE FEES FOR BILLDIRECT SOFTWARE AND ▇▇▇▇ TYPE IMPLEMENTATIONS, [**]
WARRANTY FEE MAINTENANCE FEE SCHEDULE; TRAINING FEE SCHEDULE
LICENSE FEES FOR BILLDIRECT SOFTWARE
--------------------------------------------------------------------------------
Cumulative Quantity of BillDirect Software BillDirect Software License Fee
Licensed by Amexco from Licensor*
--------------------------------------------------------------------------------
[**]* $[**]
--------------------------------------------------------------------------------
[**] $[**]
--------------------------------------------------------------------------------
[**] $[**]
--------------------------------------------------------------------------------
Based on Amexco's Initial Order of [**] ([**]) copies of the BillDirect
Software, Amexco starts at quantity [**] ([**]) on this sliding price scale for
its next order. Pricing for future orders operates on a cumulative basis (e.g.
if Amexco's next order is for [**] licenses of BillDirect Software then the
cumulative number of BillDirect Software Licenses ordered by Amexco to date
totals [**] ([**] for the Initial Order plus [**] for the new order), and the
license fee for each of the [**] new licenses ordered would be $[**] per
license). Subject to increase in accordance with the terms of this Exhibit D.
LICENSE FEES FOR ▇▇▇▇ TYPE IMPLEMENTATIONS
------------------------------------------
▇▇▇▇ Type Implementation [**] Packs-$[**]/[**] pack, subject to increase in
accordance with the terms of this Exhibit D.
WARRANTY FEES FOR [**] WARRANTY UNDER TERMS OF THE AGREEMENT
------------------------------------------------------------
For Product, [**]% of License Fee per Product ordered under a Schedule plus
[**]% of License Fee for all ▇▇▇▇ Type Implementations ordered under the
Schedule, subject to increase in accordance with the terms of this Exhibit D.
For Customized Product [**]% of the total professional services fees for the
Customized Product under the Consulting Agreement and related Schedule thereto,
subject to increase in accordance with this Exhibit D.
[**] MAINTENANCE FEE UNDER TERMS OF THE AGREEMENT (commencing upon expiration of
--------------------------------------------------------------------------------
the applicable [**] Warranty)
-----------------------------
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 41 -
For Product, [**]% of License Fee per Product ordered under a Schedule plus
[**]% of License Fee for all ▇▇▇▇ Type Implementations ordered under this
Schedule, subject to increase in accordance with this Exhibit D For Customized
Product, [**]% of the total professional services fees for the Customized
Product under the Consulting Agreement and related Schedule thereto, subject to
increase in accordance with this Exhibit D.
ON SITE SUPPORT SERVICES
------------------------
$[**] per day plus reimbursement of Licensor's travel, lodging and living
expenses per Amexco's standard travel policy, a copy of which was provided by
Amexco to Licensor, subject to increase in accordance with this Exhibit D.
TRAINING-all the training rates which follow are subject to increase in
---------
accordance with the terms of this Exhibit D.
ONSITE TRAINING PACKAGE AT AMEXCO US FACILITY FOR PRODUCT:
---------------------------------------------------------
. [**] days of onsite training for [**] individuals $[**] plus reimbursement
of Licensor's travel, lodging and living expenses per Amexco's standard
travel policy, a copy of which was provided by Amexco to Licensor
. Each additional individual over [**] $[**]
. Individual training manual (not included above) $[**]
TRAINING AT LICENSOR'S FACILITIES FOR PRODUCT
---------------------------------------------
$[**] per individual per day, including manual
ON-SITE TRAINING DAILY RATE AT AMEXCO US FACILITY FOR CUSTOMIZED
----------------------------------------------------------------
PRODUCT TRAIN THE TRAINER OR OTHER CUSTOMIZED TRAINING PROGRAM AS ANY
---------------------------------------------------------------------
SUCH TRAINING PROGRAM IS MUTUALLY AGREED TO BY AMEXCO AND LICENSOR
------------------------------------------------------------------
$[**] per day plus reimbursement of Licensor's travel, lodging and living
expenses per Amexco's standard travel policy, a copy of which was provided
by Amexco to Licensor
ON-SITE TRAINING DAILY RATE AT LICENSOR FACILITY FOR CUSTOMIZED
---------------------------------------------------------------
PRODUCT TRAIN THE TRAINER OR OTHER CUSTOMIZED TRAINING PROGRAM AS ANY
---------------------------------------------------------------------
SUCH TRAINING PROGRAM IS MUTUALLY AGREED TO BY AMEXCO AND LICENSOR
------------------------------------------------------------------
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 42 -
$[**] per person per day
INCREASE IN FEES OVER TIME
--------------------------
Licensor may increase any of the fees set forth in this Exhibit D by [**]%
---------
(increase based upon total price) per annum (including without limitation
Warranty Fees, Maintenance Fees and Maintenance Fee renewals) commencing one
year from the Effective Date of the Agreement upon [**] ([**]) days written
notice. Licensor shall send a copy of the revised Exhibit D to Amexco with such
---------
notice. Revisions to Exhibit D shall not affect any fees, charges or prices on
---------
Schedules entered into prior to the effective date of such revision for items
ordered under that previously existing Schedule.
INTERNATIONAL UPLIFT PRICING
----------------------------
Notwithstanding anything in this Schedule to the contrary, to the extent that
the Product is being installed at a site outside of the US, the ▇▇▇▇ Type
Implementation is being used with respect to a Product installed at a site
outside the US or the Warranty or Maintenance and Support Services are being
performed outside of the US, then all related pricing shall be increased by
[**]% of what the price would have otherwise been under this Schedule.
ADDITIONAL GENERAL PRICING TERMS
--------------------------------
All pricing and payments are in US dollars. Amexco is responsible for Taxes as
described in Article 11 of the Agreement along with shipping and handling
charges.
----------
[**] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
