EXHIBIT 10.48
ADDENDUM NO. 3 TO
MASTER SOFTWARE LICENSE AGREEMENT DATED APRIL 18,
2002
BETWEEN
FISERV SOLUTIONS, INC.
AND
SEDONA CORPORATION
This addendum (hereinafter
referred to as the "Addendum")
is made and entered into this _________ day of March, 2004 (hereinafter referred
to as the “Effective Date”), by and
between SEDONA CORPORATION with offices at 0000 Xxxx 0xx Xxxxxx,
0xx Xxxxx,
Xxxx xx Xxxxxxx,
Xxxxxxxxxxxx 00000 (hereinafter individually referred to as "Licensor"), and
FISERV SOLUTIONS, INC., a Wisconsin Corporation with offices at 000 Xxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 (hereinafter individually referred
to as
“Licensee”) [hereinafter referred to jointly as the “Parties”].
BACKGROUND
WHEREAS, Licensor and Licensee entered into a Master Software License Agreement on April 18, 2002, as amended (hereinafter referred to as the
"MSLA");
WHEREAS, on June 30, 2003, Licensee elected to cancel the maintenance services as describe in Paragraphs 9.2 (a), (b), (c), and (d) of the
MSLA;
WHEREAS, the cancellation of maintenance nullified all rights to subsequent releases, updates, upgrades, patches and corrections. Licensee now desires to
license the updates, upgrades, patches, and corrections to the Licensed Product(s);
WHEREAS, the “MSLA” and Addendum No.2 required that Licensor’s relationship with Licensee’s business units be administered solely
through the Informent Division (now known as Customer Contact Solutions (hereinafter referred to as “CCS”)), Licensor and Licensee now desire to amend this requirement to allow Licensor to sell directly to all other Licensee’s
business units; and
WHEREAS, Licensee now desires to acquire certain Licensed Products and support previously canceled; and
WHEREAS, Licensor desires to provide Licensee with such Licensed Product(s) on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing, and in reliance on the mutual agreements contained herein, the Parties agree to the revised payment
terms and to amend the MSLA and Xxxxxxxx Xx.0 as provided in this Addendum:
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1. |
PAYMENT TERMS |
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1.1 |
In consideration to Licensor’s agreement
to renew Licensee’s right to Licensed Product(s), previously canceled
by Licensee, Licensee agrees to pay Licensor, on the Effective Date of
this Addendum, a one time, non-refundable fee in the amount of Two Hundred
Eighty Thousand |
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Four Hundred Dollars and No Cents ($280,400.00)
(hereinafter referred to as the “License Renewal Fee”). The
License Renewal Fee shall not be paid in cash but be credited to the
current balance of Licensee’s prepaid Continuing Royalty. This License
Renewal Fee shall be paid in full on or before March 31, 2004. |
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1.2 |
Licensor shall provide up to 750 personnel
hours of professional services and customer support services, at a rate
of one hundred and thirty three dollars ($134.00) per hour, (hereinafter
referred to as “Service
Hours”) to CCS, at no cost, until December 31, 2004. CCS shall be responsible
for reimbursement, upon receipt of invoice from Licensor for such services, of
actual and reasonable travel and other related expenses incurred therewith. CCS
shall provide Licensor ten (10) days prior to each month a written summary of
the specific projects to be performed by Licensor. In the event that CCS does
not use all Service Hours by December 31, 2004, Licensor agrees to reimburse
Licensee, at the same rate specified above, the amount equivalent to the professional
services and customer support services hours not utilized by Licensee by January
31, 2005. |
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1.3 |
Licensor shall provide Licensee with Maintenance
Services for the Licensed Product(s) in compliance with paragraphs 9.2.a
through 9.2.f of the MSLA as amended for a period of 3 (three) years
from the effective date of this Addendum. The Maintenance Services can
only be canceled by a default by Licensor as specified in accordance
with the provisions of the MSLA as amended. If either party fails to
observe or perform any material obligation under the MSLA as amended,
the non-defaulting party may give written termination notice to the defaulting
party specifying the material failure. Non-defaulting party may, at its
sole option, terminate this Agreement 30 days after notice of default
has been received by the defaulting party unless the default is corrected
within such 30 day period; provided that, with respect to default by
Licensee in payment of undisputed amounts due for Maintenance Services,
Licensor shall only have the right to terminate the Maintenance Services
and may not terminate the remainder of this Agreement. |
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1.4 |
Licensor shall provide Intarsia version 4.1
to CCS within ten (10) days of the Effective Date of this Addendum. Licensor
agrees to exempt CCS from paying Maintenance Services fees for any installation
of Intarsia version 4.1, or any prior version of Licensed Product(s),
in to the current WalletShare customer base (hereinafter referred to
as the “Customer Base”) set forth in Exhibit A. CCS shall pay
Licensor Maintenance Services fees, in accordance with the MSLA as amended,
on all subsequent releases, updates, upgrades and enhancements of the
Licensed Product(s). |
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1.5 |
Upon execution of this Addendum, Licensee
agrees to pay to Licensor all outstanding invoices dated on or before
March 15, 2004. |
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2. |
AMENDMENTS
TO “MSLA” APRIL 18,
2002. |
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2.1 |
Add
paragraph 1.23. ““Relative
Contribution” means the percentage value of the whole product
that is represented by Licensed Product(s), as mutually agreed upon
by the Licensee and Licensor.” |
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2.2 |
Replace paragraph 3.3. “Reports.
In order to comply with the requirements of the Xxxxxxxx-Xxxxx Act, following
the third day of each calendar quarter, Licensee shall submit to Licensor
a quarterly report of all Licensed Product(s) distributed by Licensee
during such quarter, all fees payable to Licensor with respect thereto,
and any other information reasonably requested by Licensor. To the extent
Licensee may have earned fees from the Licensor pursuant to its promotion
of the Licensed Product(s), Licensor shall provide reporting as described
in the preceding sentence.” |
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2.3 |
Replace paragraph 3.5. “No
Resale Price Restrictions. Licensor
and each business unit of Licensee engaged in marketing the Licensed
Product(s) shall mutually develop the pricing structure of Licensed
Product(s). The pricing structure shall be competitive and consistent
with pricing practices of each business units’ specific target
market.” |
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2.4 |
Add paragraph 4.5. “Licensee
grants Licensor the right to sell Licensed Product(s) directly to any
business unit or affiliate of Licensee.” |
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2.5 |
Add paragraph 9.2.g. “Licensor
shall provide support for the most recent Version and the one (1) previous
version.” |
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2.6 |
Replace
paragraph 12.3. “Notwithstanding
anything herein to the contrary, in the event of (a) termination for
Licensor breach; or (b) bankruptcy, insolvency, re-organization or
dissolution of Licensor, provided that Licensor is unable to perform
its obligations under this Agreement, the license granted in Section
2 hereunder shall continue in perpetuity, but the payment obligations
under Section 2 shall cease.” |
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2.7 |
Replace paragraph 13.16. Notices. All
notices shall be sent by certified or registered mail, return receipt
requested, or by personal delivery, to the following addresses: |
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If to Licensee: |
Fiserv Solutions, Inc. |
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000 Xxxx Xxxxxxxx Xxxxxxxxx |
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Xxxxxxxxxx, XX 00000-0000 |
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Attention: Chief Financial Officer |
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with a copy to: |
Fiserv, Inc. |
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000 Xxxxxx Xxxxx |
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Xxxxxxxxxx, XX 00000 |
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Attention: Xxxxxxx Xxxxxx, Esq. |
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If to Licensor: |
SEDONA Corporation |
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0000 Xxxx 0xx Xxxxxx |
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Xxxxxx Xxxxx |
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Xxxx xx Xxxxxxx, XX 00000 |
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Attention: Chief Financial Officer |
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with a copy to: |
Xxxxxx-Xxxxxxxx LLP |
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Xxxxxxxx Square |
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000 Xxxxxxxxxx Xxxxxx XX |
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Xxxxxxxxxx XX 00000-0000 |
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Attention: Xxxxxx Xxxxxx |
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3. |
AMENDMENTS
TO “MSLA” LICENSE SCHEDULE NO.1 |
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3.1 |
Replace
paragraph 1.1. “Software: The
Software described by Licensor as Intarsia and all components thereof,
including but not limited to the components (“hereinafter referred
to as the Components”) known as Update Manager, Process Manager,
Report Manager, Data Source Manager, and Intarsia Portal as further
described in the Documentation. These are to be delivered by FTP only,
as opposed to disk. “ |
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3.2 |
Replace paragraph 5.2. “Continuing
Royalty. All fees under Section 5.1 of this License Schedule shall be treated as
non-refundable, prepaid royalties for purposes of calculating continuing
royalties (“Continuing Royalty”). Except as provided in the preceding
sentence, Licensee shall pay Licensor, during the years, 2004, 2005 and 2006,
Continuing Royalty as follows:” |
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3.2.1 |
Replace paragraph 5.2.1. “Licensee
shall pay to Licensor >Continuing Royalty on every Sale of
any Licensed Product(s) or Components to Client by Licensee. In no event
shall the Continuing Royalty be less than a pre-established minimum royalty
(hereinafter referred to as “Minimum Royalty”) paid by Licensee
to Licensor on every Sale of any Licensed Product(s) or Components. The
Continuing Royalty and Minimum Royalty shall be mutually agreed upon
by Licensor and each Licensee’s business unit selling the Licensed
Product(s) or Components.” |
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3.2.2 |
Replace paragraph 5.2.2. “Beginning
on January 1, 2007 and thereafter, Licensor shall earn $2,500 royalty
for each sale of the Licensed Product(s), provided Maintenance Services
are no longer provided by Licensor.” |
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3.2.3 |
Add paragraph 5.2.3. “Should Licensee
provide the Licensed Product(s) or Components via an Application
Service Provider (hereinafter referred to as “ASP”) delivery
model, Licensee shall pay Continuing Royalty on any amount paid by Client
to Licensee for the Relative Contribution of the Licensed Product(s)
or Components, including the proportionate share of any initial set up
and installation fees for the length of the ASP contract. In no event
shall the aggregate amount of the Continuing Royalty during any one (1)
year period of any ASP contract be less than a pre-established Minimum
Royalty paid by Licensee to Licensor for the Relative Contribution of
the Licensed Product(s) or Components, including the proportionate share
of any initial set up and installation fees for the length of the ASP
contract. The Continuing Royalty and Minimum Royalty shall be mutually
agreed upon by Licensor and each Licensee’s business units selling
the Licensed Product(s) or Components.” |
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3.3 |
Replace paragraph 5.3.1. “From
commencement of this License Schedule, and in accordance with Section 9.2
of the MSLA as amended, Licensee shall pay Licensor thirty percent (30%)
of all maintenance fees, received by Licensee from every Client, on the
Relative Contribution of the
Licensed Product(s) or Components’ Sale (hereinafter referred to as “Level
3 Maintenance Fee”). In no event shall the Level 3 Maintenance Fee be less
than the mutually agreed upon minimum maintenance fee (hereinafter referred to
as “Minimum Maintenance Fee”) paid to Licensor by each Licensee’s
business units selling the Licensed Product(s) or Components.” |
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3.4 |
Add Paragraph 5.3.3. “Licensor
shall provide, for a period of not less than one (1) year, Level 1 Support
and Level 2 Support to any
Licensee’s business unit requesting such support services. For as long as
Licensor is rendering Level 1 Support and Level 2 Support for the Licensed Product(s)
or Components, Licensee shall pay Licensor a mutually agreed upon percentage
(“hereinafter referred to as “Level 1 and Level 2 Percentage Fee”)
on all maintenance fees received by Licensee from every Client, In no event shall
the amount paid by Licensee to Licensor for Xxxxx 0 Support and Level 2 Support
services be less than a mutually agreed upon minimum services fee (hereinafter
referred to as “Level 1 and Level 2 Support Minimum Fee”).” |
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4. |
GENERAL |
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4.1 |
This Addendum, including its Exhibits and
Appendices, embodies the entire agreement of the parties with respect
to the subject matter hereof and supersedes all previous agreements,
arrangement, and undertakings
with
respect thereto. |
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4.2 |
Each party hereby acknowledges that it has
not entered into this Addendum in reliance upon any representation made by
the other party not
embodied herein. |
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4.3 |
No variation, modification, or amendment
of this Addendum shall be binding on either party unless such variation,
modification, or amendment is in writing and signed by duly authorized
representatives of both
parties. |
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4.4 |
The prevailing party in any suit or action
brought against the other to enforce the terms of this Addendum or any
rights or obligations hereunder, shall be entitled to receive its reasonable
costs, expenses, and attorneys'
fees of bringing such suit or action. |
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4.5 |
The section headings used herein are inserted
only as a matter of convenience and for reference and shall not affect
the construction
or interpretation of this Addendum. |
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4.6 |
If any provision of this Addendum is held
to be unenforceable or invalid, the other provisions shall continue in
full force and
effect. |
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4.7 |
The failure of either party to insist on strict
performance of any of the provisions hereunder shall not be construed
as the waiver of any subsequent default of a similar nature. |
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IN WITNESS whereof, this Addendum has been executed as of the date hereof by the following duly authorized representatives:
| FOR AND
ON BEHALF OF SEDONA |
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BY: |
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| SEDONA CORPORATION |
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| 0000 XXXX 0XX XXXXXX, XXXXXX
XXXXX |
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NAME: |
| XXXX XX XXXXXXX,
XX00000 |
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DATE: |
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| FOR
AND ON BEHALF OF FISERV |
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BY: |
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| FISERV SOLUTIONS,
INC. |
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NAME: |
| 000 XXXX XXXXXXXX XXXXXXXXX |
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| XXXXXXXXXX,
XX 00000-0000 |
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