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EXHIBIT 10.14
[CASH FLOW MANAGER LOGO]
License Agreement
LICENSOR: LICENSEE:
"We", "Us" or "Our" means the Company named above, its successors and assigns. "You" or "Your" means the
Financial Institution named above.
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You and we agree as follows:
Section 1. Grant of License. Subject to the terms and conditions set
forth in this agreement, we hereby grant to you (and to any branch
offices maintained by you) and you hereby accept (a) the non-exclusive
and non-transferable right and license to offer CashFlow Manager to
your customers; and (b) the right and license to use our CashFlow
Manager program, software, trade names, service marks, trademarks,
copyrights, patents, electronic data processing methods, accounts
receivable forms, including forms and programs presently available and
forms and programs developed by us for use with the CashFlow Manager
program. Unless the context denotes otherwise, the term "customer"
means all current and prospective customers other than financial
institutions.
Section 2. Reservation of Rights. You acknowledge our claimed interest
in and exclusive right to the CashFlow Manager program and all
component parts thereof, including without limitation, all forms,
computer programs, copyrights, trademarks and trade names, manuals,
bulletins, procedures or supplements, devices and insignia we may use
from time to time in conjunction with the CashFlow Manager program
(hereinafter "the Program").
Section 3. Program Services. We will install, setup and maintain the
computer software at one (1) site location designated by you for your
CashFlow Manager Program. You agree that you will obtain or use
computer hardware which meets the requirements specified by us. You
also agree to provide qualified personnel, either on your own premises
or through contract with some other firm, sufficient to operate the
Program for your Program customers. Prior to offering the CashFlow
Manager Program to your customers, we will provide onsite instruction
to your employees or designated representatives concerning the proper
operation of the Program, and will provide these persons with Program
operating materials. You agree that your employees or representatives
will take such instruction as we may from time to time reasonably
request. In addition, we agree to install, setup and maintain the
computer software and provide the training described in this paragraph
at additional site location(s) designated by you upon receipt of the
Multiple Site Installation Fee provided for in Section 8 of this
agreement.
Business Consulting and Marketing Services. In addition, we will
provide you with the services of one or more Program consultants who
will assist you in the marketing of the Program to your customers in
accordance with marketing plans developed between you and us. This
includes, but is not limited to, the providing of telemarketing
services to customers selected by you, customer presentations, and
other services related to approval of the customer for your Program.
You acknowledge that the consultant's services are not exclusive to
you, but that such services will be provided in accordance with
schedules mutually acceptable to you and the consultant. In the event
of any disagreement or dissatisfaction arising concerning the services
rendered to you by the consultant, we agree that we will replace such
consultant with another consultant acceptable to you within a
reasonable period if, after notice from you, such disagreement or
dissatisfaction with the consultant cannot be resolved.
Other Support. We will also provide you, your employees or your
designated representatives with Program training, forms and other
materials to assist you in compliance with federal, state and local law
applicable to the Program.
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Section 4. Confidentiality. You acknowledge that the procedures,
electronic data processing methods, forms and techniques furnished by
us as a part of the CashFlow Manager Program and contained in the
CashFlow Manager software and manuals are unique and confidential. In
order to protect the value of the confidential information licensed to
you, you agree to retain in confidence, and to require your employees,
agents and representatives to retain in confidence, all such
information and know-how transmitted to you by us. You agree not to use
the confidential material communicated to you by us except for the
purpose and to the extent necessary for the operation of the CashFlow
Manager Program pursuant to the license granted herein. The CashFlow
Manager documentation and manuals will at all times remain our sole
property and will promptly be returned to us upon the expiration or
termination of this agreement.
We acknowledge and agree that any information or data coming into our
possession concerning you, your operations and your customers is unique
and confidential. We agree to retain in confidence, and to require our
employees, agents and representatives to retain in confidence, all such
information and will not make use of the confidential material
communicated to us by you except for the purpose and to the extent
necessary for the operation of the CashFlow Manager Program pursuant to
this agreement.
Your and our obligations under this Section will survive the expiration
or a termination of this Agreement.
Section 5. Software Modifications and Alterations. We agree that we
will furnish to you, at no additional cost to you, any updates and
upgrades developed by us for the CashFlow Manager software during the
term of this agreement. You agree to timely implement any and all
changes to the CashFlow Manager software which are deemed necessary by
us for the proper operation of the Program. You agree that the CashFlow
Manager software will be used in accordance with the instructions
contained in the instructional and operating information provided by
us. No modifications or changes will be made by you with the Program
software unless written approval is first obtained from us. In the
event modifications or changes are made by you, or your employees or
representatives, you agree that we will have the right to use such
changes and, at our option, to incorporate the changes into the
CashFlow Manager Program and to make them available to third parties.
Section 6. Operating Materials. You agree to purchase from us any
specialized forms which are required for use in conjunction with the
CashFlow Manager Program. We agree to allow and assist other reputable
and competent printers selected by you to reproduce or print the forms
required by the CashFlow Manager Program so long as such printers
conform to the standards or specifications established by us.
Section 7. Program Marketing Materials and Obligations. We will make
standard promotional material available to you at a reasonable cost.
You agree to solicit your selected creditworthy commercial customers
via letter and/or brochure mailing at least once per year. During the
term of this agreement, you also agree that you will offer no other
program of a similar nature to your customers.
Section 8. License Fees; Multiple Site Installation Fees. In
consideration of the trademark, licenses and rights herein granted by
us to you, and in consideration of the use of the trade names or
trademarks, CashFlow Manager Program and CashFlow Manager in our
confidential manuals and materials, you agree to pay us the license
fee, plus any applicable sales taxes, set forth below. License fees are
payable upon the execution of this agreement. $300.00 of the License
Fee is for the licensing, installation and use of the software, and the
balance represents consideration for the employee and customer
training, education and initial marketing program setup and support. In
the event you elect to install the Program at additional site
location(s), you agree to pay us a Multiple Site Location Fee for each
such installation to provide for our cost of installing and maintaining
the software at such location(s) and providing the technical support
and training set forth in this Agreement.
License Fee: Multiple Site Installation Fee:
Section 9. Ongoing Support Fees; Volume Rebates. As additional
consideration for our initial and continuing marketing, technical and
Program support, you agree to pay us ____% of the amount of the Initial
Balance of the receivables purchased by you from each new CashFlow
Manager customer and an ongoing support fee equal to __% of the total
discount fees charged or taken by you in each subsequent month with
respect to "ongoing purchases" of receivables from each CashFlow
Manager customer. As used herein, the term "Initial Balance" purchase
means the first purchase of receivables from a CashFlow Manager
Customer
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(or the first 30 days' receivables acquired by you if you either (i)
acquire less than all of the CashFlow Manager customer's receivables
existing on the date of the first purchase of receivables, or (ii) if
such CashFlow Manager customer has no existing receivables which will
be purchased by you until after the date of the first purchase of
receivables). "Ongoing purchases" means purchases of receivables from a
CashFlow Manager Customer subsequent to the Initial Balance purchase.
Support Fee Rebates. We agree to pay you a marketing rebate based upon
the monthly volume levels of ongoing receivable purchases made by you
from your CashFlow Manager customers. These volume levels and the
amount of the rebate percentage applicable to each volume level as
applied to the discount fees charged or taken by you in a specific
month are as follows:
LEVEL AMOUNT OF RECEIVABLES PURCHASED REBATE PERCENTAGE* (of Discount Fee)
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I $ 500,000 - $1,250,000........................................... --%
II $1,250,001 - $2,500,000............................................ --%
III $2,500,001 + ............................................ --%
* The net effective ongoing support fee rate at these levels is ___%, ___% and
___%, respectively.
These volume rebate percentages shown above are applied separately to each of
the specific volume levels to which they relate (e.g., the rebate percentage for
receivable purchases between $500,000 and $1,250,000 is ___% regardless of the
total receivables purchased in that month, etc.). These marketing rebates will
be processed by us approximately forty-five (45) days after the close of the
calendar month to which the rebate relates, and payable by us to you no more
than sixty (60) days beyond the close of the calendar month to which the rebate
relates. The rebates will be applicable to: (1) all ongoing support fees which
are normally processed and invoiced during a calendar month which (2) are paid
to us no later than twenty-five (25) days following the invoice date. Rebates
will not be given with respect to any ongoing support fees which are paid to us
more than 25 days beyond the invoice date.
Section 10. Reporting and Payment of Ongoing Support Fees. You agree to report
to us each month, on forms supplied by us, the amount of receivables purchased
during the preceding month, and remit by check the fees due to us under this
agreement. All ongoing support fees will be due and payable within twenty-five
(25) days of the invoice date. Amounts which are due and not paid to us as
provided in this agreement will thereafter bear interest at the rate of eighteen
percent (18.0%) per annum.
Section 11. Term of Agreement, Termination and Refund of License Fees. This
agreement will be effective on the date of execution by us and you, and will be
for an initial term of five (5) years (the "Initial Term"). At the end of the
Initial Term, and on each anniversary date thereafter, this agreement will
automatically extend for an additional year beyond the Initial Term, or renewal
term, unless we or you give written notice to the other of non-extension at
least sixty (60) days prior to the expiration date of the Initial Term, or
renewal term of this agreement.
License Fee Refund Period. The first twelve (12) months of the Initial Term of
this agreement will be deemed the license fee "Refund Period." If you have not
purchased of a minimum of $100,000 in Initial Balance purchases of receivables
(as defined in this agreement) during the Refund Period, we agree that you will
have the right and option either to: (i) terminate this agreement with a refund
of $7,500.00 of the license fee paid hereunder; or (ii) to receive a refund of
such amount without a termination of this agreement. To terminate this agreement
and receive the license fee refund, you must give us written notice of your
election to terminate within thirty (30) days following the expiration of the
Refund Period. In the event you give us notice of termination under these
circumstances, this agreement will terminate on the date specified in the
notice. If you do not give us written notice under these circumstances, we will
pay you such refund without a termination of this agreement. Any ongoing support
fees which are outstanding at the time of a termination will be immediately due
and payable to us. Thereafter, neither you nor we will have any further
obligation to the other, subject to the remaining provisions of this Section and
Section 14.
Early Termination After the Refund Period. After the Refund Period expires, we
agree that you will have the right to terminate this agreement by giving us
ninety (90) days prior written notice of termination, subject to the remaining
provisions of this Section and Section 14. In the event you terminate this
agreement prior to
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the expiration of the Initial Term or a renewal term (except a termination which
arises out of our default), any ongoing support fees which are outstanding at
the time of a termination and all License fees which have not been paid
previously by you, other than a License fee installment refunded to you in
accordance with this Section, will be due and payable 25 days after the date of
termination specified in your notice.
Ongoing Purchase Fee Obligations After Expiration or Termination. As additional
consideration for the license and services we provide in connection with the
Program, you agree to pay an ongoing purchase fee ("OP Fee") with respect to
each CashFlow Manager customer for a period of twenty-four (24) months following
the expiration or termination of this agreement if you continue to offer an
accounts receivable financing program of a nature similar to CashFlow Manager
("replacement program") to such customer. So long as the OP Fee is payable under
these circumstances, you agree to report to us each month, on forms supplied by
us, the amount of receivables purchased during the preceding month, and remit by
check the fees due to us under this section. All OP Fees will be due and payable
on or before the 25th day of each month for purchases made in the preceding
month.
We agree that you will have no OP Fee obligation if you do not offer, or once
you discontinue to offer, your replacement program to such CashFlow Manager
customer. We also agree that you will have no OP Fee obligation with respect to
new customers added to your replacement program following a termination or
expiration of this agreement, or if the termination of this agreement arises out
of our default in obligations to you under this agreement. The OP Fee provided
for in this section shall be calculated in the same manner as the ongoing
support fees provided for in Section 9, including any applicable volume rebate
provisions.
Section 12. Program Software; Limited Warranty. As additional consideration for
this license, you agree not to reproduce copies of the CashFlow Manager software
except to the extent required to operate your CashFlow Manager Program.
Program Software and Documentation. We warrant the physical software media and
documentation to be free of defects in materials and workmanship and that each
will substantially conform to the specifications and applications set forth in
our documentation during the term of this agreement, provided it is used with
computer hardware which meets minimum specifications as determined by us during
the term of this agreement. However, we make no representation or warranty that
the software or documentation is "error-free" or meets any user's particular
standards, requirements or needs. If we receive notice of any defects in the
software from you, we will replace the defective software media or
documentation.
The entire and exclusive liability and remedy for breach of this limited
warranty is limited to replacement of the defective software or documentation,
and we will have no liability or responsibility to you or to any entity or
person with respect to any claim for or damages for any indirect, special or
consequential damages in any manner arising out of, or connected with the sale,
the use or the anticipated use of the Program software and documentation
referred to herein, or for damage caused or alleged to be caused directly or
indirectly by the computer software or documentation furnished by us, including
but not limited to the interruption of service, loss of business or anticipated
profits or consequential damages resulting from the use or operation of the
software.
If we are unable to cure the defects in the software or documentation within a
reasonable period, you have the option to terminate this agreement upon written
notice and receive a refund of all License fees paid by you prior to such
termination. Thereafter, neither of us will have any further obligation to the
other.
WE SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, OR
CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY
WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. ALL OTHER IMPLIED TERMS ARE EXCLUDED.
Program Services. We represent that each of our employees or representatives
assigned to perform marketing, technical support or data processing services
will have the proper skill, training and background so as to be able to perform
in a competent manner the services described in this agreement; provided,
however, you agree that we will not be responsible for any indirect, special or
consequential loss or damage, such as loss of anticipated revenues or other
consequential economic loss in connection with or arising out of any
unintentional breach of this agreement. Nor will we be liable for any errors in
judgment or mistakes that may be made in good faith when acting on your behalf.
Nor will we be liable for any delay in the performance of
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our duties caused by strike, lawsuit, riot, civil disturbance, fire, shortage of
supplies or materials or any other cause reasonably beyond our control.
YOU HEREBY AGREE TO WAIVE AND RELEASE US FROM ANY CLAIM OR LIABILITY FOR
ERRORS OR MISTAKES MADE IN GOOD FAITH OR FOR ANY SUCH
CONSEQUENTIAL LOSS OR DAMAGE AS SET FORTH IN THIS SECTION.
Section 13. Default; Provisions for Alternative Dispute Resolution. In the event
that either you or we default in the performance of any obligation under this
agreement, and this default continues for a period of thirty (30) days after
written notice is given by the non-defaulting party, then the non-defaulting
party will have the right, at its option, to terminate this agreement by giving
written notice of such termination. Except as specifically provided otherwise,
such termination will not constitute a waiver of our rights to any sums due and
payable to us from you pursuant to the terms of this agreement.
We and you further agree that any dispute arising between the parties, either
before or after a termination of this agreement, will be submitted either to
mediation, or to non-binding arbitration in accordance with the rules of the
American Arbitration Association, prior to the commencement of any legal action
or proceeding against the other party to this agreement.
Section 14. Procedures Upon Termination. Upon the expiration or termination of
this agreement for any cause, you agree to immediately discontinue the use of,
and return to us, all trade names, trademarks, service marks, copyrights,
patents, computer software programs, manuals, materials, signs, and forms of
advertising indicative of the CashFlow Manager Program. If you fail or refuse to
comply with the provisions of this section, you agree to reimburse us for all
costs, including reasonable attorney's fees and other expenses incurred in
connection in the enforcement of this provision. In the event you terminate this
agreement, but elect to continue an accounts receivable financing program of a
nature similar to CashFlow Manager, you warrant that such replacement program
will be or has been developed without the use of any of our confidential or
proprietary information covered by this agreement.
Section 15. Binding Effect. This agreement will be effective when executed by
one of our duly authorized officers and will benefit and be binding on you and
us, and your and our successors or assigns.
Section 16. Governing Law. This agreement will be deemed to have been made and
delivered in the State of Texas, and all rights and duties will be governed by
and enforced in accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, you and we have executed this agreement on the respective
dates set forth below, and is effective on the date accepted by us.
Licensee:
By: Date:
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Its:
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Licensor Acceptance
The foregoing agreement is hereby accepted and approved by the undersigned duly
authorized officer of BANKING SOLUTIONS, INC. on the _____ day of
_______________, 1999.
BANKING SOLUTIONS, INC.
By:
[CASH FLOW MANAGER(SM) LOGO] ---------------------------------
Its:
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[BANKING SOLUTIONS INC. LOGO]
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