Exhibit 10.10
▇▇▇▇▇▇ SOFTWARE, INC.
APPLICATION SERVICE PROVIDER PARTNER AGREEMENT
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH "****" AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
1. INTRODUCTION
This Application Service Provider Partner Agreement (the "Agreement") is
made and entered into this 31st day of JANUARY 2001 (the "Effective Date") by
and between ▇▇▇▇▇▇ Software, Inc, an Ohio Corporation, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇-▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ("Hyland") and the Recall Corporation a Delaware
Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (the
"Application Service Provider" or "ASP").
2. DEFINITIONS
As used in this Agreement, the following shall apply:
2.1 "Agreement" shall mean this Agreement between Hyland and ASP.
2.2 "Application Partner Fee(s)" shall be the amounts payable by ASP to Hyland
in accordance with the terms of this Agreement. A schedule of the current
Application Partner Fees is attached to this Agreement as Schedule B.
2.3 "Application Service Agreement" shall mean a written agreement between ASP
and a customer of ASP relating to any and all uses of the Applications. A sample
Application Service Agreement is to be created by Recall and approved by ▇▇▇▇▇▇
Software, Inc. prior to use by ASP.
2.4 "Application Service Partner" or "ASP" shall mean the company or entity
Identified as such in the Introduction to this Agreement.
2.5 "Application Software" or "Application(s)" shall mean the ▇▇▇▇▇▇
Software(R) products identified in Schedule A attached hereto.
2.6 "Confidential Information" shall mean any information relating to or
disclosed in the course of this Agreement, which is or should be reasonably
understood to be confidential or proprietary to the disclosing party.
"Confidential Information" shall not include information (a) already lawfully
known to the receiving party, (b) disclosed in published materials, (c)
generally known to the public or (d) lawfully obtained from any third party.
2.7 "Customer(s)" shall mean persons or entities including such person's or
entity's partner, agents or business associates that use or otherwise benefit
from the Application Software and /or employ data processing services from ASP
using the Application Software.
2.8 "Delivery Date" shall mean the earliest date that ASP receives any
component of the Application Software supplied by Hyland. If the method of
delivery is web-based, Delivery Date shall mean that date on which the
Application Software and any associated license becomes available for download
by ASP.
2.9 "Documentation" shall mean written, printed or electronic documents or
materials accompanying the Application Software that describe the use and
operation of the Application.
2.10 "Effective Date" shall have the meaning set forth in the Introduction to
this Agreement.
2.11 "Excluded Customers" are businesses, entities, and or accounts that
license or purchases technology and services from either Fiserv, Inc., a
Wisconsin Corporation or Information Technology, Inc., a Nebraska Corporation,
or are financial institutions that use the Software for check processing
applications, and as further described in Section 9.8
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2.11 "Hyland" shall have the meaning set forth in the Introduction to this
Agreement.
2.12 "Primary Support" shall mean services provided by ASP to its Customers
for the day-to-day technical support, help and other assistance for Customers'
use of the Applications.
2.13 "Secondary Support" shall mean services to be provided by Hyland to ASP
including reasonable efforts to assist ASP in providing Primary Support,
reasonable efforts to correct, fix or circumvent errors in, and in the
discretion of Hyland updates, enhancements and new versions of, the Application
Software.
2.14 "Trademark(s)" shall mean all Hyland trademarks and service marks.
3. GRANT OF LICENSE
3.1 During the term of this Agreement, Hyland designates the ASP as a
non-exclusive Application Service Partner and grants the ASP the right to use
the Application Software under the terms and conditions of this Agreement. This
right is non-transferable, except as permitted under Section 15.7, and applies
solely to the server-based operation, management and use of the Application
Software in unaltered, object code form. Nothing under the terms and conditions
of this Agreement, including any of the attachments and Schedules hereto, grants
any right to ASP to the use of, or access to, any Application Software source
code. This grant does not include any right to reproduce the Application
Software, to distribute copies or various of any modules of the Application
Software to any third parties including its Customers or to make and/or sell
variations or derivative works of the Application Software,provided, however,
that ASP shall be permitted to create one copy of each unit of Application
Software solely for archival or backup purposes. ASP shall be permitted to
customize portions of the Application Software User Interface on its website or
otherwise integrate the Application Software into its business offerings.
Ownership of copyright and other intellectual and proprietary rights to the
Application Software shall remain solely with Hyland.
3.2 Hyland grants to ASP the right to use the Application Software for the
purpose of in-house processing of data for customers and to provide access to
use the Application Software to ASP's Customers and where applicable, to provide
access for business partners and clients of ASP's Customer, provided that
appropriate license fee amounts are paid to Hyland as provided in this
agreement. Each and every Customer that ASP provides such data processing
service for or provides access to the Application Software to must enter into
an Application Service Agreement with ASP. The Hyland database layout is
proprietary and the use of the database layout in part or in whole constitutes
the obligation to the terms of the Application Fee Schedule. This grant allows
ASP to use the Application Software in machine-readable code, only at ASP's
primary business location or other locations as approved by Hyland in writing.
ASP may not sell or transfer the Application Software or any rights to the uses
granted herein under any circumstances.
3.3 ASP accepts the grant, in the limited scope provided herein, and agrees to
use its commercially reasonable efforts to communicate the features, benefits
and pricing and availability of the Application Software to potential Customers
in ASP's ordinary course of business.
4 APPLICATION SERVICE AGREEMENTS
ASP must limit and restrict any and all use of or access to the Application
Software by third parties to only those Customers who have executed an
Application Service Agreement. When the ASP prepares its own form Application
Service Agreement, prior to its use with any Customer, ASP shall submit such
form to Hyland for approval, which approval shall not to unreasonably withheld.
5. USE OF TRADEMARKS
Hyland grants to ASP's non-exclusive right and license to use the Trademarks for
the purpose of marketing the Application Software only: (1) on websites, or in
signs and stationery of ASP indicating its status as an authorized ASP, (2) in
such marketing materials as Hyland may choose to supply to ASP and (3) in such
advertising and other uses as Hyland may authorize in writing. ASP stay not use
the Trademarks is applicable with any goods or services other than those of
▇▇▇▇▇▇.
6. TITLE TO APPLICATION SOFTWARE
6.1 All right, title and interest in and to the Application Software, at all
times, shall remain the sole and exclusive property of Hyland; (b) other than as
expressly provided for in this agreement, ASP shall have no right to distribute,
rent, lease, lend, or
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supply Application software; and (c) ASP shall not be permitted to disassemble,
extract any source code from or reverse engineer the Application Software.
6.2 All copies of the Application Software, including listings, compilations,
partial copies and updates, are the property of Hyland, and ASP's obligations
with respect thereto shall survive this Agreement until such time as all said
copies in the possession of ASP have been returned to Hyland or destroyed. ASP
agrees to include on any and all user interfaces, documentation, access pages or
portals that use or are associated with the use of the Application Software such
copyright notices and restricted rights legends as supplied by Hyland to protect
▇▇▇▇▇▇'▇ (and ▇▇▇▇▇▇'▇ suppliers) intellectual property rights.
7. APPLICATION PARTNER REPORTS, FEES AND PAYMENT
7.1 ASP shall submit to Hyland a purchase order for each customer the ASP
seeks to install and operate under this Agreement itemizing the services to be
provided and the fee schedule.
7.2 On or before the fifteenth day of each calendar month following the
Effective Date, ASP shall provide to Hyland a report detailing any and all
transactions relating to all use of the Application Software for the immediately
preceding calendar month. Within thirty (30) days after the end of each calendar
month, ASP shall make payments in full for any and all Application Partner Fees
due Hyland in accordance with this Agreement. ASP shall make payments to Hyland
in U.S. funds. ASP specifically agrees to provide Hyland, upon five (5) days
prior written notice and only during regular business hours, access to any and
all of the databases or log or activity files associated with the use of the
application Software so Hyland may review and independently verify the activity
reported by ASP to Hyland.
7.3 The payment obligations stated in this Section 7 are exclusive of any
shipping charges, federal, state, municipal or other governmental taxes, duties,
excise taxes or tariffs now or hereafter imposed on the production, storage,
sale, transportation, import, export, licensing or use of the Application
Software. Such charges shall be paid by ASP or, in lieu of payment of any tax,
ASP shall provide an exemption certificate acceptable to Hyland and the
applicable authority.
8. ASP'S REPRESENTATIONS
ASP represents that it has skill and expertise sales and marketing, and that it
also has sufficient qualified staff and financial resources, to carry out all of
its obligations under this Agreement including the obligations for providing
Primary Support of the Application Software to the Customer.
9. RESPONSIBILITIES OF ASP
9.1 At such time as ASP elects to take on responsibility for installations and
Primary Support of its Customers, ASP agrees to professionally perform the
services as is commercially reasonably required for the provision of Primary
Support of the Application Software for the Customer. ASP will perform any and
all installations, upgrades, technical services and Primary Support for the
Application Software pursuant to installation and support procedures and
policies as developed by Hyland. When Hyland is performing installation, Primary
Support, or other services on behalf of ASP, ASP shall pay Hyland for such
services according to ▇▇▇▇▇▇'▇ then current pricing for such services.
9.2 ASP will, at ▇▇▇▇▇▇'▇ request, promptly cooperate with Hyland by
completing forms, reports or checklists as Hyland may reasonably require, in the
ordinary course of its business, that its ASP's complete as part of an
installation, upgrade or provision of the Primary Support of the Application
Software. So the Hyland may exercise its duties under Section 10.2 of this
Agreement, ASP shall identify and promptly inform Hyland of any design or
programming errors or omissions in the Application Software, of which ASP
becomes aware.
9.3 ASP represents and agrees that it will not make any representations or
create any warranties, expressed or implied, concerning the Application Software
products, but ASP may relay to ASP's Customers the representations and
warranties made by Hyland in the Application Software brochures and technical
publications. ASP will take commercially reasonable steps to insure that its
employees, agents and others under its direction, abide by the terms and
conditions of this provision and this Agreement. ASP and ASP's Customers may
rely upon as correct those representations contained in the Application software
brochures and technical publications provided by Hyland for ASP's presentations.
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9.4 ASP shall, upon ▇▇▇▇▇▇'▇ request, promptly submit to Hyland reasonable
financial statements and such other reasonable financial information, as Hyland
shall specify in order to evaluate ASP's financial condition. Failure to comply
with this provision shall be a material breach of the Agreement, which, at
▇▇▇▇▇▇'▇ discretion, shall be grounds for termination.
9.5 ASP shall comply with all applicable laws, ordinances, rules and
regulations, and ASP shall obtain any and all permits, licenses, authorizations
and/or certificates that may be required in any jurisdiction or by any
regulatory or administrative agency in connection with the sale, use/or
operations of the Application Software; provided, however, that ASP shall have
no such duties of compliance where the failure to so comply would not result in
a material adverse effect to Hyland. Regardless of any disclosure made by ASP to
Hyland of an ultimate destination of the Application Software, ASP agrees not to
export either directly or indirectly any Application Software or system
incorporating such Application Software without first obtaining a license to
export or re-export from the United States Government, as may be required, and
to comply with the United States Government export regulations, as applicable.
9.6 ASP agrees that during the term of this Agreement, ASP will not, directly
or indirectly, develop, have an ownership interest in, consult, train or engage
others to develop, any computer program or Application Software product that is
primarily designed to compete with the Application Software.
9.7 ASP assumes full responsibility for the selection of the Application
Software to achieve intended results and for the installation, use and results
obtained from the Application Software, including but not limited to providing a
suitable system for installation and the appropriate environment for operating
the Application Software and loading the Customer's data. ASP agrees that it
shall be responsible for its own expenses and costs under this Agreement and
that Hyland shall have no obligation to reimburse ASP for any expenses or costs
incurred by ASP in the performance of ASP's duties hereunder.
9.8 EXCLUDED CUSTOMERS Hyland has entered into an agreement with Fiserv, Inc.,
a Wisconsin Corporation, and Information Technology, Inc. (ITI), a Nebraska
Corporation, whereby Hyland granted to Fiserv, Inc. and ITI an exclusive
worldwide rights to license and distribute Software to: 1) customers and
accounts of Fiserv, Inc. and ITI, and 2) financial institutions (i.e. banks,
saving and loan institutions, and credit unions) for applications that are
primarily designed for the processing of checks. OEM agrees to take all
reasonable steps to retrain from representing, marketing, or licensing any
Software or Private Label Software to any and all Excluded Customers under this
provision. In the event that OEM is unaware of the status of a prospective
Customer for the Software or Private Label Software relative to this provision,
he shall make a reasonable inquiry to determine whether or not the prospective
Customers is an Excluded Customer. In the event OEM learns that such accounts is
an Excluded Customer, OEM shall discontinue any and all marketing and sales
activity with regards to the Excluded Customer.
10. ▇▇▇▇▇▇'▇ OBLIGATIONS
10.1 In accordance with the terms of this Agreement and related Schedules,
Hyland shall (a) assist ASP with the creation of promotional material (b) advise
ASP of the anticipated delivery date of enhancements to the Application Software
or new modules; (c) keep ASP updated on any new sales aids or promotional
pieces; (d) offer ASP, where appropriate and at ▇▇▇▇▇▇'▇ discretion, education
and training courses in accordance with Hyland standard services schedule; and
(e) reasonably assist with marketing information when requested by ASP.
10.2 Hyland represents that the Application Software will perform substantially
in accordance in all material respects with the product description set forth in
the Documentation, as it may exist from time to time. Hyland shall reasonably
support ASP in its deployment of the Application Software and shall reasonably
assist ASP with the marketing and support of the Applications. In the event
either party discovers a material error in the Application Software, Hyland
shall, upon notice of such error, use reasonable efforts to provide secondary
Support as stated in this Agreement. Such Secondary Support services will be
provided by phone, modem or at ▇▇▇▇▇▇'▇ offices and at such times as the parties
mutually agree upon.
10.3 Hyland agrees to keep, maintain and protect as confidential all
Confidential Information of ASP's in at least as secure a manner as it would
protect its own trade secrets.
10.4 Initially Hyland will provide, at ▇▇▇▇▇▇'▇ expense, language conversions
of the end-user software interface and related documentation for the following
language: English, Spanish, French, German, Portugese, and Italian. In future
releases Hyland may elect to discontinue or modify support for any language.
Notwithstanding the forgoing, ASP shall have the option of requiring that Hyland
maintain support of a language or add support for a new language by a) making
such
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request in writing and b) covering ▇▇▇▇▇▇'▇ actual costs related to the
maintenance or addition of said language including translation and
implementation of the translation.
10.5 "Intentionally Omitted"
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10.6 Hyland agrees to while this ASP agreement is in effect and if ASP meets
the following minimum revenue to Hyland targets, Hyland will not provide hosted
document management solutions directly to end-users.
- [From effective date thru June 30, 2002] : $1,500,000 revenue to Hyland.
- Year 2: $4,000,000 revenue to Hyland.
- Year 3: $8,000,000 revenue to Hyland.
- Year 4: $16,000,000 revenue to Hyland.
- Year 5: $32,000,000 revenue to Hyland.
- Year 6: $64,000,000 revenue to Hyland.
Nothing herein shall this prevent Hyland from selling in-house system directly
to end-users, however, should Hyland choose to sell in-house systems directly to
end-users, Hyland will take reasonable steps to avoid selling directly to ASP's
existing customer base. If a customer initiates contact with Hyland, Hyland
reserves the right to sell any of its other offerings to said customer. Nothing
herein will prevent ▇▇▇▇▇▇'▇ other resellers and partners from competing with
ASP for any business whatsoever.
10.7 In the event that Hyland offers more favorable pricing to a third-party
who is engaged in substantially the same line of business as OEM/ASP (with
regards to ▇▇▇▇▇▇'▇ software products), Hyland will offer the same terms, in
whole, to ASP. To qualify, OEM/ASP must, retroactively to the Effective Date,
meet all applicable financial terms, including minimum guarantees, pricing for
services, etc. this provision shall exclude terms for partners signed by Hyland
prior to the effective date.
11. ▇▇▇▇▇▇'▇ OPTION TO MODIFY OR DISCONTINUE APPLICATION SOFTWARE
11.1 Hyland has the right, at any time, to make such modification to the
Application Software as it sees fit to the operation, performance or
functionality of the Application Software, provided however that Hyland will
take reasonable precaution to ensure that OEM and OEM's customers are not
negatively affected by such modification.
11.2 Hyland has the right, within six (6) months following written notice to
ASP, to discontinue distribution of any or all Application Software from Hyland
or versions of Application Software, to remove supported Application Software or
versions of supported Application Software from ▇▇▇▇▇▇'▇ supported Application
Software list or to discontinue support, maintenance or the provision of new
versions, updates or correction of any Applications Software or for any version
or for any hardware or Application Software platform or operating system. If
such a discontinuance of distribution of the Application Software or of support,
maintenance or the provision of new versions, updates or correction materially
impairs the value of this Agreement to ASP, ASP shall have the option to
terminate this Agreement; such option to terminate shall expire after sixty (60)
days from the date notice of distribution discontinuance is given ASP by Hyland.
11.3 Notwithstanding the forgoing, Hyland will not discontinue support and
maintenance for any major or minor (X or X,x) versions release until 18 months
after the release of a newer version.
12. WARRANTY; LIMITATION OF LIABILITY
12.1 Hyland represents and warrants to ASP that is has the necessary rights to
enter into this Agreement and that it has the necessary ownership and
intellectual property rights to the Application Software to grant the licenses
herein, Hyland warrants that the Application Software will operate generally in
conformance with its published documentation, if properly used by ASP and
customer. If ASP discovers any errors in the Application Software, ASP shall
promptly notify Hyland in writing as to the description of the problem whereupon
Hyland shall use reasonable efforts to promptly correct such problems.
Corrections will be provided to ASP with instruction for implementation. The
remedies set forth in this Agreement shall be ASP's sole remedies for breach of
this Agreement [Much of this is covered in Section 10.2].
12.2 THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE RIGHTS AND REMEDIES GRANTED TO ASP UNDER THIS PARAGRAPH CONSTITUTE
THE SOLE AND EXCLUSIVE REMEDY OF ASP AND ASP'S CUSTOMERS AGAINST HYLAND FOR
BREACH OF WARRANTY, EXPRESS OR IMPLIED, OR FOR ANY ERRORS OR DEFECTS IN THE
APPLICATION SOFTWARE. IN NO EVENT SHALL HYLAND BE LIABLE TO ASP OR ASP'S
CUSTOMERS FOR ANY DAMAGES ARISING FROM OR RELATED TO FAILURE OR INTERRUPTION OF
THE APPLICATION SOFTWARE OR FOR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES,
OR FOR LOSS OF PROFIT OR OPPORTUNITY, LOSS OF USE OR OTHER
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FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE LICENSE, TRANSFER OR USE
OF THE APPLICATION SOFTWARE. IN NO EVENT SHALL ▇▇▇▇▇▇'▇ LIABILITY HEREUNDER
EXCEED THE TOTAL AMOUNT RECEIVED BY HYLAND UNDER THIS AGREEMENT.
13. INDEMNIFICATION
13.1 Hyland agrees to indemnify ASP against all liability and expense,
including reasonable attorneys fees, arising from any breach or alleged breach
of ▇▇▇▇▇▇'▇ obligations hereunder or its warranty that it has the required
rights to the Application Software and that the Application Software does not
infringe any ownership or intellectual property right of a third party, provided
that Hyland; (i) is notified immediately after ASP receives notice of such
claim; (ii) is solely in charge of the defense of and any settlement
negotiations with respect to such claim; (iii) received ASP's cooperation in the
defense or settlement of such claim; (iv) has the right, upon either the
occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of
a finding of infringement, either to procure for ASP or the Customer the right
to continue use of the Application Software, or to replace the relevant portions
of the Application Software with other equivalent, non-infringing portions as
approved by ASP. If Hyland is unable to accomplish either of the options set
forth in (iv) above, at ▇▇▇▇▇▇'▇ option Hyland shall either remove the portion
of the Application Software in issue and refund to ASP the value of such
portion, or remove the entire Application Software and refund to ASP the entire
amount paid under this Agreement as it relates to the incident that give rise to
the claim. ▇▇▇▇▇▇'▇ LIABILITY HEREUNDER SHALL NO EXCEED THE TOTAL AMOUNT PAID TO
HYLAND BY ASP, PROVIDED, HOWEVER, THAT HYLAND SHALL BE OBLIGATED TO INDEMNIFY
ASP AGAINST ANY AND ALL LIABILITY AND EXPENSE. INCLUDING REASONABLE ATTORNEY'S
FEES, ARISING OUT OF A CLAIM OR FINDING THAT THE INTELLECTUAL PROPERTY RIGHTS
GRANTED HEREIN INFRINGE THE RIGHTS OF A THIRD PARTY. Hyland shall have no
obligation to ASP to defend or satisfy any claims made against ASP that arise
from use, marketing, licensing or disposition of the Applications Software by
ASP other than as permitted by this Agreement.
13.2 ASP agrees to indemnify Hyland against all liability and expense,
including reasonable attorneys fees, arising from any branch or alleged breach
of ASP's representation, warranties and obligations or as a result of any claim
arising from ASP's activity, or for any claim that arises as a result of any ASP
activity utilizing the Application Software for the processing or providing of
services to third parties under this Agreement. This includes, but is not
limited to, misrepresentation or unauthorized commitments, actions or promises
made to Customers or prospects by ASP, its employees or agents with respect to
Hyland, the Application Software or any other product or service marketed by
ASP.
13.3 In the event of a claim where ASP is obligated to defend or indemnify
Hyland pursuant to Section 13.2, Hyland reserves all rights to directly
participate in all aspects in the defense of, and any settlement negotiations
with respect to such claim, including the selection and approval of its counsel;
the right to maintain separate and independent counsel; and to receive ASP's
full cooperation in the defense or settlement of such claim. In such event where
such claim arises, ASP shall be solely responsible for any and all associated
costs, legal fees and amounts required to discharge a judgment or for settlement
of any such claim under the terms and conditions of this provision.
14. TERM AND TERMINATION
14.1 This Agreement shall take effect on the Effective Date. Unless sooner
terminated in accordance with the relevant provisions of this Agreement, the
term of this Agreement shall be for five (5) years and shall be automatically
renewed successively for an additional terms of one (1) year unless either
party, in its sole discretion, gives notice of termination no less than ninety
(90) days prior to the expiration of the current term.
14.2 In the event that ASP fails to cooperate by verifying its financial
condition, or if Hyland has reasonable basis to conclude that for any reason ASP
is or will become unable to discharge its obligations hereunder, Hyland many
terminate this Agreement upon thirty (30) days written notice.
14.3 In the event of a filing by or against either party of a petition for
relief under the United Stated Bankruptcy Code or any similar petition under the
insolvency laws of any jurisdiction, where such filing is not dismissed within
thirty (30) days after the date of filing, or should either party discontinue
the business operations relevant to this Agreement, then the other party may
immediately terminate this Agreement upon written notice.
14.4 In addition to provisions authorizing termination hereunder, either party
shall have the right to terminate this Agreement as a result of a material
breach of the Agreement by the other party that is not cured within thirty (30)
days after written notice of such breach.
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14.5 Upon termination of this Agreement, and except as otherwise provided in
this Agreement, the license granted to ASP by this Agreement shall be terminated
immediately. In the event of termination, ASP shall be permitted a wind down
period during which shall be entitled to continue its use of the Application
Software pursuant to this Agreement, which in no event shall extend more than
one (1) year from the date of termination. During the wind down period (a)
Hyland shall be prohibited from exercising its rights under Section 11.2 herein
unless expressly permitted by the prior written consent of ASP, and (b) ASP
shall be required to comply with all of the terms and conditions of this
Agreement including making timely reports and payments to Hyland for Application
Partner Fees. Following the conclusion of the wind down period, ASP shall make
no further use of all or any part of the Application Software or any
Confidential Information received from Hyland.
14.6 In the event of termination ASP shall cease any public statement or
representation that it is an authorized ASP, and shall immediately cease use of
any trademark or trade name of Hyland, except as may otherwise be authorized in
writing by Hyland.
14.7 The provisions of this Agreement concerning Confidential Information,
indemnification and, except as otherwise provided, non-competition, shall
survive the termination of this Agreement, and termination shall not relieve
either party of the obligation to pay any amount due to the other hereunder. It
is understood and agreed that no termination of this Agreement, whatever the
cause thereof, shall in any way terminate, restrict, limit or affect in any way
the right of any authorized Customer to utilize the Application Software in
accordance with the terms of an Application Software License Agreement.
15. GENERAL PROVISIONS
15.1 Independent Contractor. ASP is an independent contractor under this
Agreement, and nothing in this Agreement authorizes ASP to act as a legal
representative or agent of Hyland for any purpose. It is expressely understood
that this Agreement does not establish a franchise relationship, partnership,
principal-agent relationship or joint venture, ASP shall not have the power to
bind Hyland with respect to any obligation to any third party. ASP is solely
responsible for its employees, including terms of employment, wages, hours,
required insurance and daily direction and control.
15.2 Confidential Information. ASP acknowledges that it will receive
Confidential Information from Hyland relating to technical and marketing issues
about the Application Software and the business affairs of Hyland. ASP agrees
that all Confidential Information of Hyland shall be held in strict confidence
and shall not be disclosed or used without express written consent of Hyland,
except as required by law. Each party acknowledges that it will receive
Confidential Information from the other party relating to technical, marketing
and business affairs of the other party. Each party agrees that all Confidential
Information of the other party shall be held in strict confidence and shall not
be disclosed or used without express written consent of the other party, except
as required by law.
15.3 Non Governmental. No United States Government procurement regulations or
Federal Acquisition Regulations shall be included hereunder or be binding on
either party unless specifically agreed to in writing prior to incorporation
hereunder. In the event of any sale or license to the United States government,
ASP shall assure that all labeling needed to establish Restricted Rights in Data
with respect to any Application Software is correctly affixed and intact.
15.4 No Waiver. The failure of either party to exercise any right hereunder or
the waiver by either party of any breach of this Agreement, shall not prevent a
subsequent exercise of such right or be deemed a waiver of any subsequent breach
of the same of any other term of the Agreement.
15.5 Notice. All notices, requests, demands or other communications required to
be given pursuant to the Agreement shall be in writing and shall be deemed to
have been given, if sent by U.S. mail, registered or certified mail, return
receipt requested, postage prepaid, addressed to the parties at their place of
business or to such other addresses as the parties direct in writing. Notice to
Hyland shall be addressed to:
▇▇▇▇▇▇ Software, Inc. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
Attention: President
or to such person or to such address as Hyland may designate.
Notice to ASP shall be addressed to the company, person or entity identified as
ASP in the Introduction to this Agreement.
15.6 Force Majeure. Neither party shall be deemed in fault of this Agreement to
the extent that performance of their obligations of attempts to cure any breach
are delayed or prevented by reason of any act of God, fire, natural disaster,
accident,
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act of government, shortages of materials or supplies, or any other causes
beyond the control of such party provided that such party promptly gives the
other written notice thereof and, in any event, within fifteen (15) days of
discovery thereof and uses its commercially reasonable efforts to cure the
delay. In the event of such Force Majeure, the time of performance or cure shall
be extended for a period equal to the duration of the Force Majeure but in no
event shall exceed three (3) months.
15.7 Assignment. This Agreement may not be assigned by either party, nor any
duty hereunder be delegated by either party without the prior written consent of
the other party. Subject to the foregoing, this Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and their respective
heirs, legal representatives, successors and permitted assigns.
15.8 Taxes. ASP shall pay, in addition to the other amount payable under this
Agreement, all local, state and federal excise, sales, use, privilege, personal
property, gross receipts and similar taxes levied or imposed by reason of the
transactions under this Agreement ASP shall, upon demand, pay to Hyland an
amount equal to any such tax actually paid or required to be collected or paid
by Hyland.
15.9 Limitations of Liability. In the event of failure of either party to
fulfill any of its obligations hereunder, the initial remedy of the other party
under this Agreement shall be to request performance of such obligation. If
such performance is not rendered, the other party may terminate the Agreement
and, subject to section 16, bring an action for any moneys due and payable
hereunder for services rendered. However, either party shall be entitled to
enforce its rights regarding patents, copyrights, trademarks or trade names, by
any appropriate action, including actions for damages and equitable relief.
15.10 Injunctive Relief. The parties to this Agreement recognize that a remedy
at law for a breach of the provisions of this Agreement relating to Confidential
Information, use of ▇▇▇▇▇▇'▇ trademark, copyright and other intellectual
property rights, and/or non-competition, will not be adequate for the parties,
protection, and, accordingly, each party shall have the right to obtain, in
addition to any other relief and remedies available to it, injunctive relief to
enforce the provisions of this Agreement.
15.11 Severability. In the event that a court of competent jurisdiction
determines that any portion of this Agreement is unenforceable, void, invalid or
inoperative, the remaining provisions of this Agreement shall not be affected
and shall continue in effect as though such invalid provisions were deleted.
15.12 Attorneys Fees. In the event a non-defaulting party requires the services
of an attorney to enforce any provision of this Agreement, said non-defaulting
party shall be entitled to reasonable attorneys fees, together with reasonable
expenses and costs incurred in connection with such enforcement.
15.13 Governing Law. This Agreement shall be governed and interpreted in
accordance with the substantive law of the State of Ohio, United States of
America.
15.14 Exclusive Jurisdiction and Venue. Any legal action brought concerning
this Agreement or any dispute hereunder, including but not limited to an action
to enforce or challenge an arbitration award, shall be brought only in the
courts of the State of Ohio, in the County of Cuyahoga, or in the federal courts
located in such state (and county). Both parties submit to venue and
jurisdiction in these courts. In the event that an action or claim arises
outside of the exclusive jurisdiction specified herein which names Hyland as a
party, ASP agrees to initiate, consent to and/or cooperate with any and all
efforts to remove the matter to the exclusive jurisdiction named herein, or
otherwise take any and all reasonable actions to achieve ▇▇▇▇▇▇'▇ objectives
of this provision.
15.15 Entire Agreement. This Agreement constitutes the entire Agreement and
understanding of the parties and supersedes all prior and contemporaneous
Agreements, understanding, negotiations and proposals, oral or written with
regards to operating as an application service provider. Section headings are
provided for convenience purposes only and do not provide any modifications or
substantive meaning to the terms and conditions of this Agreement. This
Agreement may be amended or modified only by a subsequent Agreement in writing
signed by each of the parties and may not be modified by course of conduct.
15.16 Binding. This Agreement shall be binding and inure to the benefit of the
parties hereto and their respective successors. In the event Hyland enters into
an agreement to sell substantially all the assets of Hyland, this agreement
shall be binding upon the purchaser.
16 Mediation; Arbitration.
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(a) Resolution by Mutual Agreement. Except for actions instituted by
either party seeking injunctive relief, any issue or dispute between the parties
arising out of or related to this Agreement or its alleged breach shall first be
referred to the Chairman of ▇▇▇▇▇▇ Software and the President of Recall, for
resolution between them, if possible. ▇▇▇▇▇▇ Software and Recall may, if they
desire, consult outside experts or a mutually respected disinterested person for
assistance in arriving at a resolution.
(b) Resolution by Mediation. ▇▇▇▇▇▇ Software and Recall also may, if
they desire, agree to undertake non-binding mediation and may, if they choose,
do so in accordance with the commercial mediation rules of the American
Arbitration Association ("AAA"), either as written or as modified by mutual
agreement. A written agreement to undertake mediation may be made at any time.
If arbitration proceedings have been instituted, they shall be stayed until the
mediation process is terminated.
(c) Resolution by Non Binding Arbitration. The parties to this
Agreement acknowledge that the subject matter hereof involves substantial
interstate activity. Any issue, controversy or claim arising out of or relating
to this Agreement or its alleged breach that cannot be resolved by mutual
agreement after a period of thirty (30) days from when the issue, controversy or
claim was first referred for mutual agreement under paragraph (a) shall be
referred by the parties to non-binding arbitration in Cleveland, Ohio, in
accordance with the commercial arbitration rules of the AAA, and judgment on any
award rendered by the arbitrator and accepted by the parties may be entered by
any court having jurisdiction thereof; provided, however, that the parties shall
have the right to agree among themselves on the amount of the claim.
(d) Selection of Arbitrator.
(1) The arbitrator shall be selected by mutual
agreement of the parties, if possible. If the
parties fail to reach agreement upon appointment
of an arbitrator within thirty (30) days following
receipt by one party of the other party's notice
of arbitration, the arbitrator shall be selected
from a list or lists of proposed arbitrators
submitted by the AAA. The selection process shall
be that which is set forth in the AAA commercial
arbitration rules then prevailing, except that (A)
the number of preemptory strikes shall not be
limited and (B) if the parties fail to select an
arbitrator from one or more lists, the AAA shall
not have the power to make an appointment but
shall continue to submit additional lists until an
arbitrator has been selected. Initially, however,
promptly following its receipt of a request to
submit a list of proposed arbitrators, the AAA
shall convene the parties in person or by
telephone and attempt to facilitate their
selection of an arbitrator by agreement. If the
arbitrator should die, withdraw or otherwise
become incapable of serving, a replacement shall
be selected and appointed in a like manner.
(2) If an arbitrator has not been selected following
submission of three or more lists by the AAA,
either party may declare the existence of an
impasse by giving written notice to the other. In
that event, the arbitrator shall be selected in
the following manner. Each party shall designate
three proposed arbitrators whose names appear on
any of the
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lists previously submitted by the AAA. The parties
shall then eliminate five of the designated names
by alternately striking one, and the person whose
name remains shall serve as arbitrator. If
necessary, the party to make the first strike
shall be designated by lot.
(e) Confidentiality of Arbitration. All aspects of the arbitration
shall be confidential, and the parties and the arbitrator shall not disclose to
others, or permit disclosure of, any information related to the proceedings,
including but not limited to discovery, testimony and other evidence, briefs and
the award.
(f) Orders Protecting Confidentiality. Upon the motion of either
party, and for good cause shown, the arbitrator may make any order which justice
requires to protect a party from the disclosure of proprietary, privileged or
confidential business information, including orders (1) that depositions or
hearings be conducted with no one present except persons designated by the
arbitrator, and (2) that depositions, exhibits, other documents filed with the
arbitrator or transcripts of the hearing be sealed and not disclosed except as
specified by the arbitrator.
(g) Expenses of Arbitrator. Each party shall pay the fees and
expenses of such party's witnesses and all other expenses connected with the
presentation of such party's case. The cost of the arbitration, including the
fees of the arbitrator and the cost of the record or transcripts thereof, if
any, administrative fees, and all other fees and costs, shall be borne equally
by the parties.
(h) Understandings of the Parties. THIS NON-BINDING ARBITRATION
AGREEMENT IS MUTUAL AND EACH PARTY CONSCIOUSLY AGREES TO SUBMIT TO NON-BINDING
ARBITRATION. THE PARTIES INTEND THAT THE SCOPE OF THIS ARBITRATION CLAUSE SHALL
BE CONSTRUED AS BROADLY AS POSSIBLE SO AS TO INCLUDE ANY AND ALL DISPUTES/CLAIMS
ARISING OUT OF THE SUBJECT MATTER OF THE AGREEMENT (EXCEPT THOSE SEEKING
INJUNCTIVE RELIEF) AS WELL AS THE RELATIONSHIPS WHICH RESULT FROM THIS
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS OF MISREPRESENTATION,
CONCEALMENT OF MATERIAL FACTS OR FRAUD AMONG THE PARTIES THAT MAY HAVE PRECEDED
ENTRY INTO THIS AGREEMENT. IN THE EVENT ANY PORTION OF THIS ARBITRATION
PROVISION SHALL BE HELD UNLAWFUL, THEN THE SAME SHALL BE SEVERED FROM THE CLAUSE
AND THIS AGREEMENT, THEREBY SAVING ANY LAWFUL PORTION HEREOF.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives:
Accepted and Agreed:
RECALL CORPORATION ▇▇▇▇▇▇ SOFTWARE, INC..
"Application Service Partner" or "ASP"
By: /s/ ▇▇▇▇▇ ▇▇▇▇ M. By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------- ---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: Chief Financial Officer Title: CEO
Date: January 31, 2001 Date: January 31, 2001
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SCHEDULE A
HYLAND SOFTWAREINC. - PRODUCTS LIST
The ▇▇▇▇▇▇ Software(R) products are Software products developed and owned by
▇▇▇▇▇▇ Software, Inc. Hyland continues to develop software products and all new
products Written by Hyland are implicitly covered by the terms of this agreement
if Hyland chooses to allow the ASP to distribute such new products as they
become available. The current Application Software is comprised of the following
products.
PRODUCTS
On Base Single User Server License
OnBase Multi-User Server License
OnBase Workflow Server
OnBase EDM Services
Full Text Indexing Server
OnBase Web Server
OnBase Subscription Server (Includes Advanced Mail Services)
OnBase Reverse API
OnBase Client
OnBase Host Application Enabler-Entry Packet (10 users)
OnBase Host Application Enabler 11+
OnBase Full Text Indexing Client
OnBase Signature/ID Client
OnBase Electronic Signature Interface
OnBase COLD
OnBase Advanced Cold
OnBase PCL Data Input Filter
OnBase Document Imaging (1st License)
OnBase Document Import Processor
OnBase Advanced Document Import Processor
OnBase Custom Import Filter
OnBase E-Forms
OnBase Archival API
OnBase CD Authoring
Automated CD Authoring (w/Rimage)
OnBase Export
OnBase Publishing (per year)
OnBase Exception Reporting
OnBase OCR
OnBase Image Statements
OnBase Print Distribution
OnBase Document Distribution
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SCHEDULE B
APPLICATION PARTNER FEE(S)
The fees due Hyland will be **** of gross revenues collected by the ASP from its
Customers for a) using or deriving benefit from the Application, b) the
continued storage of documents archived by the Application, c) the continued use
of the Hyland database layout in part or in whole. Subject to the paragraph
immediately following, Hyland will not share in revenue derived from paper
document conversion (scanning) either performed or outsourced by ASP.
If Hyland has reason to believe that ASP's pricing and/or policies related to
non-Application products and services are causing Hyland to receive less than
it otherwise should, Hyland will notify ASP in writing of the concern and
attempt to resolve the issue. If a mutually acceptable resolution can not be
reached, Hyland shall have the right to request an audit by a mutually agreed
upon Independent third party, at ▇▇▇▇▇▇'▇ expense, to evaluate ASP's pricing and
related policies. If the audit by the independent third party concludes that
Hyland is being negatively impacted by ASP's pricing and/or polices related to
non-Application products and services and a mutually acceptable resolution can
not be reached, then Hyland will have the right to terminate this agreement and
commence the wind down period specified section 14.5 of this agreement.
Hyland will also be paid for any services provided according to the then current
published list price, including travel and expenses. Currently Hyland offers the
following services:
ONBASE INSTALLATION SERVICES (PER DAY)
ONBASE WORKFLOW CONSULTING SERVICES (PER DAY)
DATA CONVERSION SERVICES (PER DAY)
ONBASE DEVELOPMENT SERVICES (PER DAY)
ONBASE TECHNICAL TRAINING (PER ATTENDEE AT HYLAND IN OHIO)
ONBASE INSTALLER CERTIFICATION (PER ATTENDEE AT HYLAND IN OHIO)
ONBASE WORKFLOW CERTIFICATION (PER ATTENDEE AT HYLAND IN OHIO)
ONBASE WEB AND API TRAINING (PER ATTENDEE AT HYLAND IN OHIO)
ONBASE CERTIFIED SALES PROFESSIONAL (PER ATTENDEE AT HYLAND IN OHIO)
ONBASE SYSTEM ADMINISTRATOR TRAINING (PER ATTENDEE AT HYLAND IN OHIO)
ONBASE END USER TRAINING (PER ATTENDEE AT HYLAND IN OHIO)
Hyland will create a targeted two week course for which Hyland will bear the
expense.
Hyland will provide the course taught in Cleveland, Ohio, materials, facilities
and instructor time for which Hyland will bear the expense.
A Three Week Training/Ramp-up Plan will be performed by Hyland and the ASP in
each of the following eight locations: United States, Spain, Brazil, Singapore,
Australia, Italy, France, and England. This training will take place once the
ASP Team has been assembled in the specific location. The ramp up plan will
include training for CDIA, Tech I training course, Sales assistance, ASP setup
and Deruo system installation. During this time, Recall will schedule a seminar
for the start of the second week, at which Hyland will assist in demonstrating
the products. Hyland will assist in customer follow-up calls during this time
period. Recall will reimburse T+E according to the Recall travel policy and
Hyland shall not charge its standard daily rates.
A Two Week Installation and Training Program will be performed by Hyland and the
ASP in each of the following eight locations: United States, Spain, Brazil,
Singapore, Australia, Italy, France, and England. This will take place after the
first sale in a specific region. Hyland will install the first ASP customer and
the then provide an installer certification course. Recall will reimburse T+E
according to the Recall travel policy and Hyland shall not charge its standard
daily rates.
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In order to accommodate the existing customers of the ReView application
explicitly listed below, Hyland has agreed to the following conversion plan.
1. Hyland will allow these sites to be converted, as soon it is
practical and desirable.
2. Hyland will not share in revenue from these customers for the
remainder of their current ReView contracts, not to exceed one year
from the effective date. Upon the earlier of one year from the
Effective Date of the expiration of their current contracts Hyland
will share in the revenue in accordance with this ASP agreement.
3. For those ReView customers without a current contract, Hyland will
not share in the revenue for 12 months from the Effective Date.
After 12 months, Hyland will share in the revenue in accordance with
this ASP agreement.
The conversion of the sites will be the responsibility of Recall and will be
performed at Recalls expense. Hyland may assist at ▇▇▇▇▇▇'▇ current daily rates
for such services plan travel and expenses. The existing ReView customers
subject to this conversion plan with the length of their existing contract are
listed below:
****, Rio de Janeiro
****, Rio de Janeiro
****, Sao Paulo
****, Sao Paulo
****, Sao Paulo
****, Sao Paulo
****, Sao Paulo
****, Sao Paulo
****, Sao Paulo
****, Sao Paulo
****, Sao Paulo
****, Sao Paulo
****, Sao Paulo
****, Sao Paulo
****, Sao Paulo
****, Sao Paulo
****, Madrid
****, Madrid
****, Madrid
****, Madrid
****, Madrid
****, Madrid
****, Madrid
****, Sydney
****, Sydney
****, Sydney
****, Sydney
****, Sydney
****, ▇▇▇▇▇▇
▇▇▇▇▇▇ has the right to review the Recall's service agreements with the
customers listed above to determine the length of the existing contracts.
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