EXHIBIT 10.6
STRATEGIC RELATIONSHIP
AND SOFTWARE LICENSE AGREEMENT
BY
AND
BETWEEN
HEWLETT-PACKARD COMPANY
AND
CLEARCOMMERCE CORPORATION
DATED
SEPTEMBER 30,1999
STRATEGIC RELATIONSHIP
AND
SOFTWARE LICENSE AGREEMENT
This Strategic Relationship and Software License Agreement (this "Agreement")
is made as of September 30, 1999 ("Effective Date") by and between HEWLETT-
PACKARD COMPANY, a Delaware Corporation and its subsidiaries, divisions and
affiliates ("HP"), and CLEARCOMMERCE CORPORATION, a Delaware corporation
("ClearCommerce").
WHEREAS, HP and ClearCommerce have entered into a Bundled Software License
Agreement dated March 31, 1999 ("Bundled Software License Agreement) and
ClearCommerce License Purchase Form No. 98-1203 executed by HP on March 29,
1999 (collectively the "Prior Agreements") for the licensing of certain
ClearCommerce products to HP; AND
WHEREAS, HP and ClearCommerce desire to expand their relationship into a
strategic relationship which covers all ClearCommerce products and services;
AND
WHEREAS, HP and ClearCommerce desire to supercede the Prior Agreements with
this Agreement;
NOW THEREFORE, the parties hereby agree as follows:
I . DEFINITIONS
1.1. "Program" means ClearCommerce's software program(s) listed and
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described in Exhibit A hereto, including all Enhancements and
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localized versions thereto as further set forth below.
1.2. "Enhancements" mean all bug fixes, error corrections, updates,
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modifications, new features, new functionalities, upgrades or
versions of the Program or Documentation.
1.3. "Documentation" means the manuals and other documentation that
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ClearCommerce ordinarily makes available with a Program and any
other documentation and information regarding the Program which HP
reasonably requests for evaluation and use of the Program as
contemplated herein, including those items listed and described in
Exhibit A hereto.
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1.4. "Complete Copy" of a Program includes (i) a master copy of the
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Program in object code form (as specified on, Exhibit A hereto) on
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the media described on Exhibit A that satisfies all functional
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specifications set forth in the Documentation, (ii) copies of all
tools, software programs, and documentation used to certify the
correct operation of the Program, and (iii) all Documentation and
technical manuals for the Program in the form(s) and on the media
described in Exhibit A.
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1.5. "HP Product(s)" means any HP product, in all its supported
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configurations and with all associated peripherals.
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1.6. "Subsidiaries" will mean an entity controlled by or under common
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control with a party to this Agreement, through ownership or control
of more than fifty percent (50% ) of the voting power of the shares
or other means of ownership or control, provided that such control
continues to exist.
1.7. "Commerce for The Millennium Program ('CFTM') shall mean HP's
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electronic commerce solution for service providers to deliver e-
commerce services to businesses.
1.8. "Store License" is defined as a per storefront license under the
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CFTM for a set or open ended number of months, such that a Merchant
(as defined below) with two (2) storefronts will require two (2)
Store Licenses.
1.9. "Store-Months" will consist of one (1) month of license per Store
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License under the CFTM.
1.10. "Merchant" is a business entity that is selling goods or services
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via the Internet under the CFTM.
2. DELIVERY AND ACCEPTANCE
2.1. Delivery. ClearCommerce agrees to deliver to HP a Complete Copy of
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each Program listed in Exhibit A not already received and tested by
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HP no later than ten (10) days after the execution of this
Agreement.
2.2. Acceptance. HP will be entitled to test and evaluate any Program by
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whatever means it deems appropriate consistent with ClearCommerce's
rights in the Program, and ClearCommerce hereby grants to HP any
licenses necessary for HP to perform its evaluation. Such licenses
will include the right of HP to use third party subcontractors to
achieve the foregoing. HP and ClearCommerce agree that after the
initial license order represented by the License Fee specified in
Exhibit C. the acceptance criteria for the initial HP Proposed
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Enhancements under Section 5.3 shall be as stated in Section 1 of
Exhibit B. Acceptance criteria for future Program Enhancements will
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be discussed and mutually agreed to by the parties. If HP returns a
Program for rework, ClearCommerce agrees to correct the listed
defects and resubmit the Program for re-evaluation under the same
acceptance procedure. In the event HP rejects a Program after the
initial license order, it will give ClearCommerce written notice of
rejection stating the reasons for its unacceptability; and this
Agreement will terminate with respect to that Program.
2.3. Enhancements. ClearCommerce agrees to deliver to HP a complete
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copy of any Enhancement within five (5) days of its release to
manufacturing by ClearCommerce. HP will have the right to test and
evaluate the Enhancements under the acceptance procedure described
above.
3. RIGHTS GRANTED AND RESTRICTIONS
3.1. License to the Program. ClearCommerce hereby grants to HP, under
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ClearCommerce's intellectual property rights, a non-exclusive,
worldwide license to use, reproduce, display,
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distribute, import and disclose the Program in object code format for
use either as a standalone product, or in conjunction with an HP
Product, or to integrate and distribute with HP Products or other
third party products. Such use limitation will not apply in the case
of Enhancements for distribution to customers for support and
maintenance purposes. Such license will include the right of HP to
continue distributing Program versions that are first distributed by
HP and subsequently updated or upgraded to a new release during the
Term of the Agreement. Such license will include the right of HP to
sublicense distributors, resellers, and other third parties to
achieve the foregoing. ClearCommerce warrants that HP's distribution
rights are worldwide and shall use its best efforts to ensure that
ClearCommerce's existing or subsequent third party distribution
arrangements do not infringe HP's distribution rights.
3.2. License to the Documentation. ClearCommerce hereby grants to HP,
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under ClearCommerce's intellectual property rights, a non-exclusive,
worldwide license to use, reproduce, display, translate, import,
disclose, distribute, modify and prepare derivative works or
compilations of (a) the Documentation; and (b) modifications,
derivative works and compilations based upon the Documentation for
use with a Program. These rights are exercisable in any medium. Such
license will include the right of HP to sublicense distributors,
resellers, and other third parties to achieve the foregoing. The
right to modify and prepare derivative works and compilations is
granted solely for the purposes of combining Documentation of more
than one program, condensing Documentation, and formatting and
preparing Documentation for user accessibility.
3.3. License to Photograph (Marketing Materials). ClearCommerce hereby
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grants to HP, under ClearCommerce's intellectual property rights, a
non-exclusive, worldwide license to capture visual images of the
Program screen displays and packaging, the Documentation and the CD-
ROM, if any, and to use, reproduce, display, perform, distribute,
import and modify such photographs and modifications and images
solely in connection with HP's marketing and support of the Program
and training with respect to the Program. Such license will include
the right of HP to sublicense distributors, resellers, and other
third parties to achieve the foregoing.
3.4. Restrictions. HP will not disassemble or otherwise modify any
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Program without written authorization from ClearCommerce, except as
necessary to ascertain interfaces or as permitted by law.
3.5. Localized Versions.
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3.5.1. The licenses granted hereunder with respect to the Program
and associated Documentation will include all localized
versions thereof available from ClearCommerce. Upon the
request of HP, ClearCommerce agrees to localize the Program
for additional countries upon a schedule to be agreed upon in
good faith by the parties.
3.5.2. In the event that ClearCommerce fails to make commercially
available such a localized version of the Program under the
schedule agreed upon, then ClearCommerce hereby grants to
HP, on terms to be reasonably agreed upon in
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good faith; a non-exclusive license to modify the Program in
order to localize the Program; and the exclusive, worldwide
right to use, reproduce, display and distribute such localized
versions developed by HP, in object code form, to end users
directly or through HP's third party channels of distribution.
Notwithstanding the foregoing, ClearCommerce may pay HP's costs
for its localization efforts in which case the aforementioned
worldwide license to use, reproduce, display and distribute
shall not be exclusive. HP may subcontract its localization
efforts subject to confidentiality restrictions reasonably
satisfactory to ClearCommerce. Under such license,
ClearCommerce will provide HP with reasonable technical
assistance, all necessary source code of the Program and any
related compilers, utilities, listings or other materials
necessary for HP to create a localized version of the Program,
which source code HP agrees to treat as Confidential
Information of ClearCommerce under Section 10 herein for a
period of ten (10) years from the date of receipt.
3.6. Trademarks. Neither party is granted any ownership in or license to
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the trademarks, marks or trade names (collectively, "Marks") of the
other party. Notwithstanding the foregoing, ClearCommerce
acknowledges that HP may use ClearCommerce's name and the name of
the Program in the course of marketing and distributing, such
Program as bundled with the HP Product.
3.7. Ownership. Subject to the rights and licenses granted to HP
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hereunder, ClearCommerce retains all right, title and interest in
the Programs and Documentation, including all copyrights.
3.8. Copyright Notices. HP agrees that it will not remove any copyright
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Notices, proprietary markings, trademarks or tradenames of
ClearCommerce from the Program or Documentation. ClearCommerce and
HP agree that a second HP copyright notice in HP's standard
copyright notice form may be added to any authorized HP
modification.
3.9. Software License Terms. HP will be entitled to use its then current
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standard form software license terms for marketing and licensing the
Programs under this agreement. HP will use reasonable efforts to
include any specific Program information which affects how Programs
are licensed to licensees in Program documentation provided by HP.
4. SALES AND MARKETING
4.1. Sales Model. Upon execution of the Agreement, HP and ClearCommerce
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agree to establish a co-selling program for a period of at least
twelve (12) months. ClearCommerce agrees that its sales force, or
other ClearCommerce sales channels will receive the same compensation
regardless of whether HP or ClearCommerce closes the sale of the
Programs. HP and ClearCommerce will meet within thirty (30) days of
execution of the Agreement to mutually agree upon the rules of
engagement for the co-selling program, including revenue and
commission allocations for the HP and ClearCommerce sales forces.
Notwithstanding the above, HP and ClearCommerce agree that upon
execution of the Agreement, any sales of the Programs to HP
subsidiaries and divisions shall be credited
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exclusively to HP, excluding any sales that were in progress and
generated exclusively by ClearCommerce prior to execution of the
Agreement.
4.2. Sales Training. ClearCommerce agrees to provide sales assistance to
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HP personnel, including twenty (20) days of sales training classes
and such additional sales training as is mutually agreed upon by the
parties, and marketing material such as Program Documentation,
coursework, reviewer guides, competitive product analyses and
product literature. ClearCommerce grants HP the right to reproduce
such marketing material for internal use and external distribution.
5. PROGRAM MAINTENANCE AND SUPPORT
5.1. Maintenance and Support.
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5.1.1. ClearCommerce agrees to provide HP and its customers with
ongoing maintenance and support for the Programs under the
terms as set forth in Exhibit D hereto. ClearCommerce
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agrees to maintain such number of qualified personnel as is
necessary to provide such timely and knowledgeable maintenance
and support service. HP shall have the right to subcontract all
or part of the HP Support (as defined in Exhibit D) obligations
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to third parties.
5.1.2. Notwithstanding the above, HP may continue to obtain training
and support from ClearCommerce for the CFTM Program on mutually
agreeable terms.
5.2. New HP Products. The parties intend that during the term of this
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Agreement, the Program will be compatible with future releases and
revisions of the HP Products, including new or revised versions of
the operating systems for the HP Products, provided that such new HP
Products support the Program. Upon request by HP, ClearCommerce
agrees to use its best efforts to provide HP, at no additional
charge, with the Program adapted for use with such new HP Products
within ninety (90) days after notification from HP or within a
mutually agreed timeframe, provided that HP makes available to
ClearCommerce such hardware, software and technical support
reasonably necessary for ClearCommerce to develop and qualify such
adapted Program.
5.3. HP Proposed Enhancements. ClearCommerce agrees to perform
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functionality Enhancements to the Programs for HP in accordance with
the requirements and timeframes set forth in Exhibit B. Any future
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Enhancements proposed by HP will be discussed by the parties and
undertaken on mutually agreeable terms. Notwithstanding any change
in control of ClearCommerce, ClearCommerce agrees to continue making
Enhancements to the Programs in accordance with the above terms.
5.4. Escrow Agreement. At HP's request, ClearCommerce agrees to enter
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into a source code escrow agreement substantially in the form attached hereto as
Exhibit F with HP and an independent escrow agent as may be mutually agreed
upon. HP and ClearCommerce agree to share equally in the escrow fees payable to
maintain such escrow account.
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6. CLEARCOMMERCE OBLIGATIONS FOR HOSTING AND MERCHANT ENGINE VERSION
3.7
6.1 Obligations. ClearCommerce shall dedicate its engineering and other
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resources, as required to migrate the CFTM Hosting Engine licenses
from Version 3.7 to Version 3.8 by November 1, 1999, and to integrate
the BroadVision system to the Merchant Engine, Version 3.8 by
November 1, 1999.
7. PAYMENT
7.1. Payment. HP agrees to pay ClearCommerce according to Exhibit C.
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7.2. Audit. Upon fifteen (15) days prior written notice to HP,
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ClearCommerce may, at its own expense, appoint a nationally
recognized independent auditor, to whom HP has no reasonable
objection, to audit and examine such records at HP's offices during
normal business hours, solely for the purpose of confirming the
accuracy of royalty payments hereunder. Such audit may be made no
more often than once every twelve (12) calendar month period. In the
event that an audit reveals an overpayment by HP, ClearCommerce
agrees to promptly refund or credit HP for such overpaid amount. In
the event that such audit reveals an underpayment by HP, HP agrees to
promptly pay ClearCommerce the amount of such underpayment. This
right of audit will be subject to ClearCommerce's auditor executing
HP's standard Confidential Disclosure Agreement.
7.3. Fee Warrant. ClearCommerce warrants that the amounts payable
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hereunder by HP are no greater than those for any other licensee
under similar terms and conditions, and ClearCommerce agrees to pass
on to HP the lowest rate or price it has given to such other
licensee, commencing effectively on the date it so grants the lower
rate or price to any other licensee.
7.4. Taxes. ClearCommerce will be solely responsible for taxes on
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royaltie paid to ClearCommerce under this Agreement, including all
state and local use, sales, withholding, property (ad valorem) and
similar taxes.
8. WARRANTY AND INTELLECTUAL PROPERTY PROTECTION
8.1. General Warranty. ClearCommerce warrants that it has full power and
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authority to grant HP the rights granted herein and that each Program
and accompanying Documentation are free of any and all restrictions,
settlements, judgments or adverse claims.
8.2. Program Warranty. ClearCommerce warrants that the Program referred to
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herein will operate in accordance with and substantially conform to
the Documentation, manuals, any specifications provided or agreed to,
and any relevant data sheet or promotional literature distributed by
ClearCommerce.
8.3. Year 2000 Compliance Warranty. ClearCommerce warrants that all
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Programs will be
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"Year 2000 Compliant." Year 2000 Compliant Programs will
perform without error, loss of data, or loss of functionality
on account of any inability to process, calculate, compare or
sequence date data accurately. In addition, Year 2000 Compliant
Programs will not cause any HP Products in which they may be
used to fail in any of the ways described above. This Year 2000
Compliance warranty will remain in effect through December 31,
2000, notwithstanding any other warranty period specified in
this Agreement.
8.4. No Infringement. ClearCommerce warrants that the Program,
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accompanying Documentation, trademarks, copyrights and trade
names referred to in this Agreement do not violate or infringe
any patent, copyright, trademark, trade secret or other
proprietary right of any third party and that ClearCommerce is
not aware of any facts upon which such a claim for infringement
could be based. ClearCommerce will promptly notify HP if it
becomes aware of any claim or any facts upon which a claim
could be based.
8.5. Intellectual Property Protection.
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8.5.1. ClearCommerce will, at HP's option, defend and hold
harmless HP, its subsidiaries, and customers from any
claim, suit, or proceeding alleging that the Program,
or any combination of the Program with an HP Product,
(provided that the HP Product is not the sole cause of
the claim, suit or proceeding) or any documentation, or
any part thereof, or any product provided as part of
ClearCommerce's support services furnished by
ClearCornmerce under this Agreement constitutes an
infringement of any third party's patent, copyright,
trademark, trade name, other proprietary right, or
unauthorized trade secret use. ClearCommerce agrees to
pay all damages and costs awarded with respect to such
claim or agreed to in any settlement of that claim.
8.5.2. In case any Program or Documentation or any part
thereof in such suit is held to constitute an
infringement and its use is enjoined, ClearCommerce
will, at its own expense and at its option (i) procure
for HP and its customers the right to continue use, or
(ii) if applicable, replace the same with, a
noninfringing program and documentation of equivalent
function and performance, or (iii) modify them so they
become noninfringing without detracting from function
or performance.
8.5.3. HP will give ClearCommerce prompt notice of any such
claim or action, and will give ClearCommerce the
authority, information, and reasonable assistance (at
ClearCommerce's expense) necessary to defend. If
ClearCommerce does not diligently pursue resolution of
the claim nor provide HP with reasonable assurances
that it will diligently pursue resolution, then HP may,
without in any way limiting its other rights and
remedies, defend the claim.
8.5.4. Notwithstanding the foregoing, ClearCommerce will have
no responsibility for claims arising solely and
directly from (i) unauthorized modifications of the
Program made by HP if such claim would not have arisen
but for such modifications, or (ii) unauthorized
combination or use of the Program with products not
contemplated herein if such claim would not have arisen
but for such combination or use.
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8.5.5. THIS SECTION 8.5 STATES THE ENTIRE LIABILITY OF CLEARCOMMERCE
WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS BY THE PROGRAMS OR DOCUMENTATION.
8.6. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
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CLEARCOMMERCE MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
REGARDING THE PROGRAM, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE.
9. INDEMNIFICATION FOR NON COMPLIANT YEAR 2000 PROGRAMS
9.1 Payment to HP. ClearCommerce agrees to pay all costs incurred by HP
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as a result of the Programs listed on Exhibit A not being Year 2000
Compliant (as defined in Section 8.3 above). This payment shall
include but is not limited to, costs associated with any replacement
efforts, including HP and HP subcontractor engineering time
dedicated to the replacement effort, as well as penalties and lost
revenue suffered by HP as a result of schedule delays on the
affected systems.
9.2 Indemnification. ClearCommerce will, at HP's option, defend and hold
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harmless HP, its subsidiaries, and customers from any claim, suit,
or proceeding that a Program listed on Exhibit A is not Year 2000
Compliant. ClearCommerce agrees to pay all damages and costs awarded
with respect to such claim or agreed to in any settlement of that
claim.
10. TERM AND TERMINATION
10.1 Term. Unless otherwise terminated earlier under this Section 9, this
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Agreement will commence as of the date first set forth above, and
will continue twelve (12) months thereafter. This Agreement will
renew automatically for two (2) additional one (1) year periods
thereafter and only HP shall have the option not to renew for these
additional periods with written notice to ClearCommerce sixty (60)
days prior to the end of the applicable term. After the first three
(3) years of the Agreement, either party shall have the option not
to renew the Agreement and the Agreement will renew automatically
for additional one (1) year periods thereafter unless written notice
is given by one party to the other as to its intention not to renew
this Agreement at least sixty (60) days prior to the end of the
initial or any subsequent term.
10.2 Termination for Breach. Either party may terminate this Agreement
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by written notice to the other party if the other party breaches any
material provision of this Agreement and such breach is not cured
within thirty (30) days after written notice thereof is received by
the breaching party.
10.3 Effect of Termination. Notwithstanding any termination of this
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Agreement, all licenses granted to end users for use of the Program
will survive.
10.4 Survival. Notwithstanding any termination of this Agreement, the
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provisions of
9
Agreement, the provisions of this Agreement regarding support,
warranty, indemnification, limitation of liability, confidentiality,
effect of termination and the miscellaneous provisions. will survive.
11 LIMITATION OF LIABILITY
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TO THE FULLEST EXTENT PERMITTED BY LAW, UNLESS EXPRESSLY PROVIDED
OTHERWISE UNDER THIS AGREEMENT, NEITHER PARTY WELL BE LIABLE FOR ANY
SPECIAL OR CONSEQUENTIAL DAMAGES OF THE OTHER (INCLUDING BUT NOT LIMITED
TO LOSS OF PROFITS) ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT OR IN
FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS
OF WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER
LEGAL THEORY, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE
TO THE OTHER PARTY FOR DAMAGES FOR ANY CAUSE WHATSOEVER AND AN AMOUNT IN
EXCESS OF THE FEES ACTUALLY PAID TO CLEARCOMMERCE FOR THE SPECIFIC PROGRAM
LICENSE(S) AND THE SPECIFIC SERVICE PROVIDED UNDER THIS AGREEMENT THAT ARE
IN DISPUTE. NOTWITHSTANDING THE ABOVE, CLEARCOMMERCE WILL BE RESPONSIBLE
FOR ANY DAMAGES OF ANY KIND INCURRED BY HP UNDER SECTION 9 ABOVE OR
INCLUDED IN ANY AWARD OR SETTLEMENT OF A THIRD PARTY CLAIM UNDER SECTION
8.5 ABOVE.
Notwithstanding anything herein to the contrary, the parties agree that
ClearCommerce's liability to HP for any breach under the Bundled Software
License Agreement shall be governed by the terms of Section 8 of the
Bundled Software License Agreement which provides that the aggregate
liability of either party to the other party, its officers and employees
or any third party for any claim arising under the Bundled Software
License Agreement, or otherwise arising from the transactions contemplated
under the Bundled Software License Agreement, and regardless of the form
of action, including, but not limited to, actions for breach of contract,
negligence, strict liability, recission and breach of warranty, shall not
exceed the fees actually paid to ClearCommerce for the specific program
license(s) and the specific services provided under the Bundled Software
License Agreement, but that the limit does not apply to actions brought
under Section 6.5 of the Bundled Software License Agreement.
12 CONFIDENTIAL INFORMATION
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12.1 The Program. The Program in object code form and related
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Documentation provided to HP hereunder are deemed non-confidential,
and HP is not under any obligation to ClearCommerce to restrict
access to or use of such Programs in object code form or related
Documentation, provided HP complies with the terms of this
Agreement.
12.2 Confidential Information. During the term of this Agreement, either
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party may receive or have access to technical information, including
without limitation source code, as well as information about product
plans and strategies, promotions, customers and related nontechnical
business information which the disclosing party considers to be
confidential and which is marked as confidential at the time of
disclosure or which, if disclosed orally, is identified as
confidential at the time of disclosure and is followed within thirty
(30) days of disclosure with a written memorandum so stating to the
receiving party's Designated
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Recipient for Notice ("Confidential Information'). Confidential
Information will be used by only those employees of the receiving
party who have a need to know such information for purposes related
to this Agreement.
12.3 Protection of Confidential Information. The receiving party will
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protect any such Confidential Information of the disclosing party
from unauthorized disclosure to third parties with the same degree
of care as the receiving party uses for its own similar information
for a period of three (3) years from the date of disclosure, unless
otherwise provided in this Agreement. The foregoing restriction will
not apply to any information which is (i) already known by the
receiving party prior to disclosure, (ii) independently developed by
the receiving party prior to or independent of the disclosure (iii)
publicly available, (iv) rightfully received from a third party
without a duty of confidentiality, (v) disclosed under operation of
law, or (vi) disclosed by the receiving party with the disclosing
party's prior written approval.
13 MISCELLANEOUS CLAUSES
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13.1 Notices. All notices to be given under this Agreement must be in
writing addressed to the receiving party's designated recipient
specified in Exhibit E. Notices are validly given upon the earlier
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confirmed receipt by the receiving party or three days after
dispatch by courier or certified mail, postage prepaid, properly
addressed to the receiving party notices may also be delivered by
telefax and will be validly given upon oral or written confirmation
of receipt. Either party may change its address for purposes of
notice by giving notice to the other party in accordance with these
provisions.
13.2 Acquisition Notice. ClearCommerce shall notify HP (i) no more than
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one (1) day after engaging an investment banker to seek counter
parties for or advise with respect to any possible transaction in
which all or substantially all of ClearCommerce's stock or assets,
would be acquired in a merger, reverse triangular merger, asset
sale, stock sale or otherwise ("Acquisition"); and (ii) as soon as a
Board of Directors meeting is scheduled to consider (or acts by
written consent to approve) a proposal to bind ClearCommerce
contractually to an Acquisition.
13.3 Equity Participation. ClearCommerce agrees to let HP participate, on
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equivalent terms of other investors, in any future private equity
fundings, upon mutually agreeable terms to be decided at a later
date.
13.4 Exhibits. Each Exhibit attached to this Agreement is deemed a part
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of this Agreement and incorporated herein wherever reference to it
is made.
13.5 Independent Contractors. The relationship of the parties established
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under this Agreement is that of independent contractors and neither
party is a partner, employee, agent or joint venturer of or with the
other.
13.6 Assignment. Neither this Agreement nor any part hereof may be
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assigned by either party without the other party's prior written
consent, and any attempted assignment is void. Any merger,
reorganization, transfer of substantially all assets of a party, or
other change in
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control or ownership will be considered an assignment for the
purposes of this Agreement.
13.7 No Waiver. The waiver of any term, condition, or provision of this
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Agreement must be in writing and signed by an authorized
representative of the waiving party. Any such waiver will not be
construed as a waiver of any other term, condition, or provision
except as provided in writing, nor as a waiver of any subsequent
breach of the same term, condition, or provision.
13.8 Export Control. The parties agree to comply with all applicable
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United States laws and regulations which may govern the export of
Program abroad, including the Export Administration Act of 1979, as
amended, any successor legislation, and the Export Administration
Regulations issued by the Department of Commerce.
13.9 Definition Of Days. All references in this Agreement to "days" will,
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unless otherwise specified herein, mean calendar days.
13.10 Headings. The Section headings used in this Agreement are for
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convenience of reference only. They will not limit or extend the
meaning of any provision of this Agreement, and will not be relevant
in interpreting any provision of this Agreement.
13.11 No Publication. Neither party may publicize or disclose to any third
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party, without the written consent of the other party, the terms of
this Agreement. Without limiting the generality of the foregoing
sentence, no press release may be made without the mutual written
consent of each party.
13.12 Severability. If any provision in this Agreement is held invalid or
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unenforceable by a body of competent jurisdiction, such provision
will be construed, limited or, if necessary, severed to the extent
necessary to eliminate such invalidity or unenforceability. The
parties agree to negotiate in good faith a valid, enforceable
substitute provision that most nearly effects the parties' original
intent in entering into this Agreement or to provide an equitable
adjustment in the event no such provision can be added. The other
provisions of this Agreement will remain in full force and effect.
13.13 Non-Restrictive Relationship. Nothing in this Agreement will be
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construed to preclude HP from independently developing, acquiring or
marketing computer software packages which may perform the same or
similar functions as those software packages provided by
ClearCommerce.
13.14 Entire Agreement. This Agreement comprises the entire understanding
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between the parties with respect to its subject matters and
supersedes any previous communications, representations, or
agreements, whether oral or written. Specifically, the parties agree
that this Agreement supersedes the Prior Agreements and that the
Prior Agreements are no longer in full force and effect except as
set forth in Section 11 above. For purposes of construction, this
Agreement will be deemed to have been drafted by both parties. No
modification of this Agreement will be binding on either party
unless in writing and signed by an authorized representative of each
party.
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13.15 Governing Law. This Agreement will be governed in all respects by
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the laws of New York without reference to any choice of law
provisions.
13.16 Counterparts. This Agreement may be executed in counterparts, each
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of which will be deemed an original.
Agreed:
HEWLETT-PACKARD COMPANY CLEARCOMMERCE
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------------ ------------------------
Print Name: [ILLEGIBLE] Print Name: [ILLEGIBLE]
--------------------- ----------------
Title: GM. E.Commerce Division Title: VP. Sales
-------------------------- ---------------------
Exhibits:
Exhibit A - Description of Program and Documentation
- Form and Media of Program and Documentation
Exhibit B - Enhancements To Be Performed by ClearCommerce
Exhibit C - Pricing
Exhibit D - Maintenance and Support
Exhibit E - Relationship and Account Managers
- Designated Recipient for Notice
Exhibit F - Escrow Agreement
13
EXHIBIT A
LICENSED PROGRAM
DESCRIPTION OF PROGRAM AND DOCUMENTATION
PROGRAM:
ClearCommerce ClearLink API on HP-UX and Solaris - Version 3.8 or later
This software provides SSL security for the customer purchase information
between the storefront and the ClearCommerce Hosting Engine. It interfaces
almost any third party or in-house developed storefront to the Hosting
Engine. This software is tested and released by ClearCommerce as platform
and release-specific software; it may be available on other platforms.
Depending on the configuration of the web server and Hosting Engine, one or
more copies of the ClearLink API must be installed in order to allow
multiple storefronts to interface with the Hosting Engine.
ClearCommerce Hosting Engine on HP-UX and Solaris - Version 3.8 or later
The ClearCommerce Hosting Engine is an Internet commerce transaction
processing, reporting, and tracking engine for managing Internet sales.
Modules included with the engine are Payment, Fraud, Merchant Reporting,
Electronic Software Download, Shipping, Tax and one small merchant
application API per merchant. SNMP support is also provided with the
Hosting Engine with the installation of third party SNMP software by
Hosting Engine Licensee. For each user of the Hosting engine a non-
transferable per merchant per year fee is required. The ClearCommerce
Hosting Engine is licensed to customers who want to support 1000's of
merchants. It is not licensed to companies who which to support multiple
divisions or support multiple storefronts or multiple merchant ID's. This
capability is supplied with the Enterprise Merchant Engine.
ClearCommerce Enterprise Merchant Engine on HP-UX and Solaris - Version 3.8
or later The ClearCommerce Enterprise Merchant Engine is an Internet
commerce transaction processing, reporting, and tracking engine for
managing Internet sales. The Storefront is interfaced into the Enterprise
Merchant Engine with the ClearCommerce ClearLink API on HP-UX. Modules
included with the engine are Payment, Fraud, Merchant Reporting, Electronic
Software Download, Shipping, Tax and legacy API's. SNMP support is also
provided with the Enterprise Merchant Engine with the installation of third
party SNMP software by Enterprise merchant Engine Licensee. The Enterprise
Merchant Engine is licensed to a single business entity that needs to
support multiple storefronts or multiple merchant ID's on a single system.
ClearCommerce Merchant Engine on HP-UX and Solaris - Version 3.8 or later
The ClearCommerce Merchant Engine is an Internet commerce transaction
processing, reporting, and tracking engine for managing Internet sales. The
Storefront is interfaced into the Enterprise Merchant Engine with the
ClearCommerce ClearLink API on HP-UX. Modules included with the engine are
Payment, Fraud, Merchant Reporting, Electronic Software Download, Shipping,
Tax and legacy API's. SNMP support is also provided with the Merchant
Engine with the installation of third party SNMP software by Merchant
Engine Licensee. The Enterprise Merchant Engine is licensed to a single
business entity that needs to support only a single storefronts and single
merchant ID's on a single system.
14
Payment: This includes secure order management and payment processing.
Most modem interfaces to most processors are supported although
certain modem hardware may be required;
NOTE: Lease line Interface: Unique and specific interfaces are
needed from ClearCommerce for a lease line interface to a card
processor, one interface is provided with the Hosting Engine
license. ClearCommerce supports several specific card processors
at this time and may be able to provide other card processor
interfaces for additional fees and schedules. Check with
ClearCommerce at time of purchase for the availability of lease
line card processor interfaces. In addition ClearCommerce also
supports several Internet based payment connections to selected
card processors.
Fraud: The Internet Fraud protection module performs Internet specific
fraud checks to help reduce the merchant's fraud exposure in doing
business over the Internet.
Merchant Reporting: This module provides web-based tabular and
graphical reports for the sales transactions accepted through the e-
commerce site. The Reports module provides the quantitative
information for sales reconciliation as well as statistical
information on sales. Reports are individually based on a Merchant ID
or Merchant Account Number, not the storefront.
Shipping Module and Tax Module: These modules when interfaced properly
to the SSL Storefront API allow for automatic calculations of tax and
shipping.
Electronic Software Download: This module when properly interfaced
into the SSL Storefront API allows for delivery of digital goods to
the consumer after credit authorization.
Legacy System API: These API's act as translations between the
ClearCommerce Enterprise Merchant Engine and the ClearCommerce
Merchant Engine (not available on the ClearCommerce Hosting Engine)
and the merchants pre-existing information systems (fulfillment,
accounting, call center, inventory, etc. Database schema and
cryptography are included with the feature to allow the merchant to
implement the integration.
DOCUMENTATION: Associated end-user, installation and training manuals or
documents
FORM AND MEDIA FOR PROGRAM AND DOCUMENTATION PROGRAM FORM/MEDIA:
Hosting Engine on CD-ROM; ClearLink API normally delivered on CD-ROM
DOCUMENTATION FORM/MEDIA:
PDF files on CD-ROM with Program software, or separately by email
transmission
15
EXHIBIT B
PROGRAM ENHANCEMENTS
ClearCommerce shall perform Enhancements to the Programs as set forth below.
The Enhancements must be able to do the following in order for HP to accept
such Enhancement.
1) Hosting and Merchant Engines
----------------
. Performance:
ClearCommerce Hosting Engine and Merchant Engine 3.8.2 with Performance
Enhancements, operated in the following configuration:
K-580 server, 500 MB memory
HP-UX 11.0,
Oracle 8.0.5,
or later or upgraded versions of all these products, will achieve 50
ClearCommerce financial transactions per second with a 1-second delay by
January 2000.
. Scalability (number of storefronts):
ClearCommerce Hosting Engine and Merchant Engine, operated in the above
configuration, will support [*] configured storefronts at the above
performance level.
. Clustering:
ClearCommerce Hosting Engine and Merchant Engine, operated in the above
configuration, [*]
. Reliability:
ClearCommerce Hosting Engine and Merchant Engine with be integrated with HP
Service Guard technology and will meet the guaranteed uptime levels
required for Service Guard qualification.
2) Porting Parity
--------------
Except to the extent of any performance limiting features of an HP Product, all
Programs shall perform on the HP-UX platform with features, functionality, and
speed no less than that of the performance of the Programs on any other Unix
operating system. In addition, any subsequent Enhancements to the ClearCommerce
Merchant Engine resulting in a major or minor release will be [*]
3) QA Cycle
---------
ClearCommerce will permit HP to send an engineer to evaluate ClearCommerce's QA
processes at its development site(s). ClearCommerce will make changes to improve
its QA processes as mutually agreed by ClearCommerce and HP.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
16
4) Year 2000 Upgrade
-----------------
ClearCommerce will upgrade all existing ClearCommerce customers running on HP
hardware where the ClearCommerce software is licensed by HP so that their
Programs are Year 2000 Compliant as defined in Section 7.3 of the Agreement.
17
EXHIBIT C
PRICING
All [*] specified below shall apply for the full Term of the Agreement unless
otherwise agreed by HP and ClearCommerce.
1. Pricing for ClearCommerce Programs
HP agrees to pay ClearCommerce a license fee [*] ("License Fee") [*] of the
License Fee will be due and payable upon execution of this Agreement. The
remainder of the License Fee shall be paid as set forth in Sections 4 and 5
below.
HP will receive credits for royalties, excluding credits for Support as set
forth below, owed to ClearCommerce against the License Fee according to the
following discount schedule for all ClearCommerce Programs:
Product Royalty
------- -------
All Programs [*] of Net Revenue Generated by HP's
Shipments of Programs
CFTM [*] of Average Selling Price of [*]
Hosting Engine Licenses
[Exception: Sec 2(iii) below]
Support: ▇▇▇▇▇ ▇ and Level 2 [*] of ClearCommerce List Price for Support
And Upgrade Per Server Assuming List Price
Equals [*] of Initial License List Price
When ClearCommerce's cumulative royalties have exceeded the License Fee, HP will
pay to ClearCommerce per copy royalties in accordance with the above discount
schedule. No royalty will be due for any package item subsequently returned for
a refund or other adjustment. No royalty will be due for any Program used by or
distributed by HP or its distributors or subcontractors for reasonable
demonstration, training, testing, development or support purposes.
All accrued per copy royalties (less any offset for fees previously paid to
ClearCommerce by HP for copies of the Program that were returned or subject to
adjustment) will be paid by HP to ClearCommerce within forty five (45) days
after the end of each HP fiscal quarter, which ends on the last day of each
January, April, July and October. Royalties for CFTM Hosting Engine Licenses
will not accrue to HP until shipment to HP's CFTM customer of the CFTM solution.
Payments will be accompanied by a report stating the number of copies of the
Program distributed in the relevant quarter, and the calculation for the royalty
payment.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
18
2. CFTM Pricing
In addition to the License Fee and discount schedule specified in Section I
above, HP will continue to pay ClearCommerce the following CFTM fees:
(i) "Per Store-Month Fee" royalty in the amount of [*] for each Store License
of the Program that HP uses internally or distributes for use in
conjunction with a HP Product. Such royalty will include the right to
reproduce and distribute associated Documentation. A [*] payment for
Store-Months will be due by March 1, 2000.
(ii) Incremental licenses will be purchased in minimum increments of [*], for
which HP will pay quarterly.
(iii) Pricing for the next three (3) Hosting Engine licenses from the date of
this Agreement for transfer or sale to a third party under the CFTM will
be at a total price of [*].
3. Non-CFTM Per Merchant Per Year Pricing For Hosting Engine
In addition to the License Fee and discount schedule specified in Section 1
above, HP will pay ClearCommerce the Per Merchant Per Year fees for Hosting
Engine licenses used for non-CFTM Customers according to the following discount
schedule:
Quantity Per Year Net Pre-Pay Amount OR Royalty on Per Year Fee
-------- -------- ------------------ -----------------------
[*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
4. Fees to migrate from Hosting and Merchant Engine Version 3.7
If on or prior to November 1, 1999, ClearCommerce completes its obligations set
forth in Section 6 of the Agreement, 1HP shall pay ClearCommerce [*] of the
License Fee upon such completion. For every week that ClearCommerce is late in
completing its obligations under Section 6, provided the delay is solely caused
by ClearCommerce, HP shall subtract [*] from the [*].
5. Fees for Enhancements
If prior to January 31, 2000, ClearCommerce completes the Enhancements set forth
on Exhibit B, HP shall pay ClearCommerce [*] of the License Fee upon such
completion. For every week that ClearCommerce is late in completing its
obligations under Exhibit B, provided the delay is solely caused by
ClearCommerce, HP shall subtract [*] from the [*].
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
19
EXHIBIT D
MAINTENANCE AND SUPPORT
1. Definitions.
a) "Customer(s)" shall mean an end user licensee of the ClearCommerce Programs
who purchases technical support from HP and is under a current contract.
b) "HP Support" shall mean the first and second-level technical support
services for the ClearCommerce Programs provided by HP to its Customers.
c) "ClearCommerce Support" shall mean the third-level technical support
services for the ClearCommerce Programs provided by ClearCommerce to HP as
specified in Section 4 below.
d) "Service Agreement(s)" shall mean a phone in support agreement(s) between
HP and a Customer. Such agreements shall be identified on HP's internal
systems as options ▇▇▇ (▇*▇ support) or H24 (24*7 support).
e) "Failure" means the Program does not substantially perform in accordance
with the User Documentation.
f) "Permanent Fix" means a fully tested and quality controlled error
correction to a Failure in the Program.
g) "Workaround" means the temporary prevention of the reoccurrence of a Failure
after implementation of a specific procedural or process change.
h) "Relief" means (i) an immediate solution or Permanent Fix to a Failure or
(ii) a Workaround that avoids the Failure or reduces the impact of such
Failure until such time that a Permanent Fix is available. This will not
include recovery, which is the restoration of a system database or similar
capacity.
2. Scope.
a) In General. HP agrees to administer Customer orders for technical support,
to provide Customers with Program installation assistance, and to provide
first and second-level technical support services for the Programs in
accordance with the terms of this Exhibit D. ClearCommerce agrees to
---------
provide technical training, applicable Documentation and Updates, and
third-level technical support services for the Programs to HP and to
Customers in accordance with the terms of this Exhibit D.
---------
b) Worldwide Implementation. ClearCommerce and HP will implement the terms of
the Agreement in any countries World-Wide where HP has a support presence.
c) Obligation to Customers. Neither HP nor ClearCommerce will make any
obligations to Customers on behalf of the other, nor commit the resources
of the other to Customers, without the other party's prior consent.
20
3. Services Provided By HP.
a) Conflict Administration and Service Orders. Upon the request of Customers
and approval by HP, HP, at its option, will accept service orders for HP
Support directly from Customers and will enter into and administer,
including invoicing, Service Agreements.
b) Installation Assistance. HP will provide Installation Assistance.
"Installation Assistance" will include support and skilled instruction to
Customers regarding the use and installation of the Programs, including but
not limited to, telephone and email support, and working with the Programs
to verify proper equipment and network configuration for the hardware and
software to be ordered, installed and set up prior to installation of the
Programs.
c) Level One Support. HP will provide Level One Support. "Level One Support"
means the initial response (and any follow up response as appropriate) to a
support request from a Customer and is available twenty-four (24) hours a
day, seven (7) days a week. Level One Support includes initial information
gathering and may include, without limitation, some or all of the
following: verification of entitlements, answering product installation,
configuration or usage questions, initial problem information gathering,
problem isolation and identification, providing standard fixes and
Workarounds to known problems, the dispatch of field technicians for on-
site remedial hardware services, the distribution and installation of field
change orders, the assignment of an Error Severity, Level (as outlined
below) and the referral of support requests to Level Two Support when
Relief cannot be provided within predetermined elapsed time guidelines.
Wherever possible HP will provide Customers with Level One Support in the
local country language during normal working hours for the local country.
Outside of these hours and during periods of local public holidays, the
Level One Support will be provided in English.
d) Level Two Support. HP will provide Level Two Support. "Level Two Support"
means promptly responding to support requests referred by Level One Support
resources by providing Relief acceptable to Customers. Level Two Support
consists of additional information gathering/problem isolation, reproducing
the Customer's problem within the HP Response Center environment, providing
Relief for both new and known complex problems, referring unresolved
problems or those requiring formal fixes to Level Three Support, and
working with Level Three Support teams to recreate and resolve the
problems.
e) Error Severity Levels. "Error Severity Levels" shall be defined as follows:
Severity 1 Critical Business Impact (Urgent): The problem
results in the failure of the complete software
system, of a subsystem, or of a software unit
within the system, and there is no workaround.
Program financial transactions can not be completed
(complete lo ss of service).
Severity 2 Serious Business Impact (High): The problem results
in the failure of the complete software system, of
a subsystem, or of a software unit within the
system, and there is a workaround or alternative
(significant loss of service).
Severity 3 Minor Business Impact (Medium): The problem does
not result in a
21
failure, but causes the system to produce incorrect,
incomplete or inconsistent results or the problem
impacts the system usability (minor loss of service).
Severity 4 No work being impeded (Low): The problem does not
cause a failure, does not impair usability, and the
desired processing results are easily obtained by
working around the problem (information requested or
reported only).
4. Services And Rights Provided By ClearCommerce
a) ClearCommerce Training. Upon the Effective Date of this Agreement and for
the term of this Agreement, ClearCommerce will provide, at no charge, to the HP
response center engineers identified by HP, 15 days worth of initial training
(minimum of 5 people per training class) on the ClearCommerce Programs to
enable HP to deliver HP Support to Customers plus an additional 5 days of
training for each new Version or Major or Minor Release (defined in subsection
j below). HP may purchase additional training from ClearCommerce at, a rate of
[*] plus reasonable travel and living expenses (if a ClearCommerce trainer
provides training at a remote HP site). In addition, ClearCommerce will make
commercially reasonable efforts to provide HP with the following information:
a) Program descriptions and functionality
b) Information relating to the interaction between the
ClearCommerce Program and the operating system
c) Technical procedures to identify the ClearCommerce Programs
d) Minimum configurations for the ClearCommerce Programs
e) Troubleshooting techniques
f) Error correction information
g) Reports of bug fixes incorporated in the current release of the
ClearCommerce Program
h) Identification of known bugs
i) Compatibility matrix for hardware platforms and associated
supported
ClearCommerce Program versions
b) Right to Copy Education Materials. ClearCommerce grants HP a license to
reproduce, in whole or in part, any education materials distributed to HP by
ClearCommerce in conjunction with the above referenced ClearCommerce training to
be used solely by HP technical support engineers for the sole purpose of
providing HP Support to Customers. All titles, trademarks, copyright and
restricted rights notices shall be reproduced in any copies. Education materials
do not include Documentation; Documentation is addressed in subsection (c)
below.
C) ClearCommerce Documentation. ClearCommerce shall provide HP at no charge, two
(2) copies of ClearCommerce's standard documentation for each ClearCommerce
Program (Documentation), for reproduction and distribution by HP. ClearCommerce
shall provide HP two (2) copies of any updates to ClearCommerce Documentation
within three (3) business days of the update's availability. ClearCommerce
Documentation will be provided in CD-ROM format, subject to availability.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
22
d) ClearCommerce Updates and Upgrades. For the Term of this Agreement,
ClearCommerce grants HP a non-transferable license to use and to reproduce, in
whole or in part the above-referenced ClearCommerce Documentation and updates
and upgrades provided to HP by ClearCommerce. The ClearCommerce Documentation
and updates and upgrades shall be used solely by HP technical support engineers
for the sole purpose of providing HP Support to Customers. All titles,
trademarks, copyright and restricted rights notices, shall be reproduced in any
copies.
e) ClearCommerce Programs. ClearCommerce will provide for each ClearCommerce
Program, at no charge, two (2) copies of the ClearCommerce Program and of the
upgrades and updates for reproduction and distribution by HP.
f) Right to Use and Distribute. For the Term of the Agreement, HP shall have a
nonexclusive, non-transferrable, world-wide license to use and distribute to
Customers who have entered into Service Agreements the following items provided
by ClearCommerce: (i) updates, when available and in accordance with
ClearCommerce's standard policies and procedures; (ii) Documentation provided
with the updates; and (iii) software bug fixes to the ClearCommerce Programs.
These items shall only be used for the sole purpose of providing training and
technical support to HP employees and/or Customers for the ClearCommerce
Programs. All titles, trademarks, copyright and restricted rights notices shall
be reproduced in any copies.
g) Notification of Changes. ClearCommerce will notify HP of any changes in
ClearCommerce support policies and procedures that are reasonably expected to
materially affect HP's ability to support the ClearCommerce Programs under the
Agreement.
h) Notification of Discontinuance. In accordance with ClearCommerce's standard
procedure of providing advance notification to customers with regard to
ClearCommerce's intention to discontinue support for a product, ClearCommerce
will notify HP of ClearCommerce's intention to discontinue technical support of
any ClearCommerce Program. Notwithstanding the above, ClearCommerce shall
continue to make available for distribution and support Programs that are
updated or upgraded in accordance with subsection (j) below.
i) Diagnostic Tools and Troubleshooting. If made available by ClearCommerce and
subject to mutually agreeable terms, ClearCommerce may provide HP with
appropriate troubleshooting techniques and diagnostic tools for the
ClearCommerce Programs that ClearCommerce may have or develop which will assist
HP in software problem resolution. HP will only use such diagnostic tools
provided by ClearCommerce to perform its obligations under this Agreement.
i) ClearCommerce Programs Obsolescence Policies. ClearCommerce Programs are
identified by a numbering scheme to identify updates. This numbering scheme has
a minimum of two numbers placed in the following format: x.y. However, sometimes
ClearCommerce uses a numbering scheme which has three numbers placed in the
following format: x.y.z.
A "Version" shall be identified by the number in the "x" position. A "Major
Release" shall be identified by the number in the "y" position. A "Minor
Release" shall be identified by the number in the "z" position. A "Terminal
Release" shall be the last Update before a new Major Release or a new Version is
issued.
23
(i) When a new Version or a new Major Release is made available by
ClearCommerce, ClearCommerce will continue to provide the
following services to HP for the Terminal Release upon the then
current supported operation systems that the Clear Commerce
software performs under for a period of [*] until the next
major release whichever comes first:
(a) telephone technical assistance;
(b) bug fixes for Severity I and escalated Severity 2 bugs,
including software error correction and backporting of
fixes;
(c) migration path information;
(d) certification with supported products or newer operating
system releases; and
(e) escalation support, response times, and skill availability
as specified below.
ClearCommerce will continue to provide telephone, technical
assistance, available pre-existing workarounds and fixes for
known problems that do not require any development effort, and
migration path information for an additional period of [*] for
the Terminal Release after the initial [*] period.
(ii) Upon release of a new Version or a new Major Release,
ClearCommerce will provide [*] of telephone
assistance only for all prior Minor Releases, excluding the
Terminal Release, within the immediately prior Major Release
chain.
(iii) ClearCommerce will give HP timely notice, but no less than
ninety (90) days prior written notice of planned Terminal
Releases.
In the event ClearCommerce changes its support policies from those as set forth
above, the changes will be provided to HP. If the changes are functionally
equivalent to those policies specified above, then the new policies will become
effective immediately. In the event that the changes are not functionally
equivalent to those as set forth above, the new policies will become effective
upon HP's acceptance of the changes.
The decision about any ClearCommerce support policy changes being functionally
equivalent to the policies specified above will be made jointly by the Strategic
Contacts.
(k) "Level Three Support". ClearCommerce will provide at a minimum the following
maintenance and support with respect to the Program:
(i) Take appropriate corrective action on any defect report it
receives in accordance with the schedule below, including source
code reading when the problem requires detailed analysis of
memory dumps and creating patches and patch installation
scripts. ClearCommerce will provide HP with the necessary data
or software to allow HP to distribute the solution to Customers.
Error classification is determined by HP, but
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
24
ClearCommerce reserves the right to reasonably change a
classification after it is escalated to ClearCommerce.
(ii) Maintain a telephone number and technician to receive calls
during normal business hours concerning problems and
questions.
(iii) Provide prompt notification and assistance in the event
ClearCommerce determines a problem exists.
(iv) Provide normal evolutionary enhancements, upgrades and
updates, including instructions for implementation.
(v) Provide a designated, knowledgeable support contact for
providing technical support, who may be changed by written
notice.
(vi) Provide "Escalation" support to HP if HP declares a customer
situation requires immediate action as described below. This
may require ClearCommerce to give additional attention,
extra resources or assist a HP engineer on-site. An
Escalation may require ClearCommerce to respond in a
twenty-four (24) hours per day, seven (7) days per week
support when the situation is judged by HP as being Error
Severity Level 1: Critical.
l) Response Time And Effort. ClearCommerce shall respond to HP Level Two
Support referrals according to the following schedule:
=================================================================================================================
Response Effort - issue worked...
Error Initial Response
Error Severity Classification Time*
Level
-------------------------------------------------------------------------------------------------------------------
1 Critical less than 30 minutes 7X24 until resolved, the issue is
downgraded in Severity level, or both
parties agree that that the procedural or
reasonable workaround is available.
----------------------------------------------------------------------------------------------------------------------
2 Severe less than 1 hour Normal working hours
----------------------------------------------------------------------------------------------------------------------
3 Medium less than 2 hours Normal working hours
----------------------------------------------------------------------------------------------------------------------
4 Low less than 2 hours Normal working hours
======================================================================================================================
* "Initial Response Time" is the time for a return call from ClearCommerce to HP
to acknowledge the error and to estimate the time for delivery of the
resolution.
5. Escalation of Customer Problems
a) Initiating Escalation. The escalation procedure ("Escalation") will be
followed if either party believes a Customer situation requires additional
attention by the other party to resolve the problem. Either party will initiate
Escalation if the normal avenues for problem resolution have been exhausted.
Conditions which will trigger Escalation include high levels of Customer
anxiety, disagreement between the parties as to responsibility for pre-screened
problems, Clearcommerce's failure to meet the response time under Section 4(l)
above, HP's failure to adequately co-operate with ClearCommerce, or recurring
intermittent critical Problems which remain unresolved after two (2) attempts.
25
b) Escalation Process. Either party's Strategic Contact will call the other
party's Strategic Contact to request Escalation. Once a party requests
Escalation, appropriate contacts are designated within each party's
organization. The individual designated as the escalating party's Problem Site
Manager will then contact the other party's Problem Site Manager to develop and
write an Action Plan, as defined below. This Action Plan will outline the
specific steps the parties, both individually and mutually, will take. The
Action Plan is then followed and updated as necessary. When the problem has been
resolved, or it is determined that a resolution is not possible, the monitor
phase is initiated. When monitoring indicates that the problem is resolved, the
Escalation is closed.
If Escalation is consistently requested by either party for a number of
Customers over a period of time, then either party may request in writing that
the Support Operations be reviewed by and discussed between the appropriate HP
and ClearCommerce Vice Presidents. The Vice Presidents shall develop an
appropriate Action Plan to resolve the situation. The effectiveness of the
Action Plan will be reviewed after three (3) months. Agreed upon changes shall
then be made to the Support Operations.
c) Designated Contacts. Once Escalation has been requested, each party will
designate individuals with the responsibilities listed below and will promptly
report these designates and their telephone numbers to the other party's
Operational Contact. An individual may fulfil multiple roles, provided he/she
can carry out the described responsibilities. Once designated, the individuals
will establish and maintain direct contact with their counterparts until the
escalation is closed as described below.
i. Problem Site Manager. The Problem Site Manager ensures the Action
Plan is developed, written, and communicated properly, provides
the highest level of technical knowledge short of factory/lab;
provides on-site assistance as appropriate; and ensures problem
replication and generation of technical "work-around," if
possible.
ii. Factory Problem Manager (designated whenever needed; does not
have to be designated initially). The Factory Problem Manager
manages Escalation communications within factories/labs involved;
utilizes factory/lab resources for escalated problem support;
analyses problem data sent from field; reviews action plan; and
ensures prompt factory/lab response to escalated field requests
iii. Strategic Contacts. If at any time during Escalation, one party
feels the problem is not being dealt with or the other party is
not responding adequately to requests for assistance, the
respective Strategic Contact will be notified. The Strategic
Contacts will then work together to resolve the issue.
d) Action Plan. The designated contacts will work together to develop a mutual
Action Plan as quickly as possible which establishes, at minimum:
* Actions to be taken, which may include (i) reprioritizing
commitments, (ii) increasing resources, (iii) establishing
remote dial into Customer system for direct observation, or
(iv) sending engineers on-site.
* Responsibility for each action
* Purpose or desired result of each action
* Expected completion of each action
* Contingency/next step if desired results are not achieved
26
This Action Plan will be modified by mutual agreement among the
designated contacts whenever the situation requires.
e) On-Site Visits. During Escalation, either party may request that the other
party send engineers on-site to resolve escalated problems. Typical situations
for which a party may request on-site Visits may include: (i) when the Customer
perceives that its business relationship is deteriorating due to persistent
problems with the ClearCommerce Programs, or (ii) when it is not possible or is
extremely inconvenient to reproduce the problem remotely, at the ClearCommerce
site, or at HP in a timely fashion.
f) Status Updates. Each designated contact will establish a schedule of follow-
up, status update communications with his/her counterpart that will ensure
timely exchange of information.
g) Monitor Phase. The purpose of the monitor phase is to evaluate the Customers
environment over some period of time to verify that the problem has been
resolved. Both parties will co-ordinate monitoring activities and mutually agree
to close the monitor phase when it is clear the problem is resolved.
h) Closing Escalation. When both parties agree that the problem has been
resolved or the situation no longer requires Escalation, the Escalation is
closed. Each designated contact will exchange final reports with his/her
counterpart summarizing the Customer problem(s), actions taken, results of those
actions, likelihood of problem recurrence, and recommended future actions.
6. Relationship Management
a) Strategic Contacts. ClearCommerce and HP will each designate an employee who
shall serve as the sole liaisons between HP and ClearCommerce as each party's
strategic contact for support related matters ("Strategic Contact"). Each party
shall notify the other whenever the designated Strategic Contacts'
responsibilities are transferred to another employee. The Strategic Contacts
will be the focal points for general relationship and process issues and will be
responsible for managing the overall support relationship of the parties. The
initial Contacts are set forth below.
==========================================================
CLEARCOMMERCE HP
==========================================================
Strategic contacts: Strategic Contacts:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Phone: Phone: (▇▇▇) ▇▇▇-▇▇▇▇
==========================================================
b) Cooperation. HP and ClearCommerce acknowledge that the timely provision of
and access to assistance, co-operation, complete and accurate information and
data from their officers, agents, and employees are essential to performance of
any technical support services, and that each party's ability to provide such
services is dependent upon same
27
EXHIBIT D
ACCOUNT REPRESENTATIVES
LICENSOR Copy to:
-------- --------
Name ____________
Title ___________
Address _________
__________
Phone ___________
HP: Copy to:
--- --------
Name _____________
Title ____________
Address __________
__________
Phone ____________
HOLDER:
-------
Name _____________
Title ____________
Address __________
___________
Phone ____________
28
EXHIBIT E
ACCOUNT/RELATIONSHIP MANAGERS
HP CLEARCOMMERCE
_____________________ _______________________
_____________________ _______________________
_____________________ _______________________
_____________________ _______________________
_____________________ _______________________
_____________________ _______________________
Tel: ________________ Tel: __________________
Fax.:________________ Fax:___________________
DESIGNATED RECIPIENT FOR NOTICE
HP CLEARCOMMERCE
_____________________ _________________________
_____________________ _________________________
_____________________ _________________________
_____________________ _________________________
_____________________ _________________________
_____________________ _________________________
Tel: ________________ Tel:_____________________
Fax: ________________ Fax:_____________________
29