EXHIBIT 10.6
SECOND EXTENSION AND FURTHER AMENDMENT OF
MARKETING AGREEMENT
THIS EXHIBIT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. THE
CONFIDENTIAL INFORMATION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. IN PLACE OF SUCH OMITTED CONFIDENTIAL
INFORMATION, "****" HAS BEEN INSERTED.
This Second Extension and Further Amendment of Marketing Agreement
("Amendment") is made and entered into this 8th day of May, 2002, by and among
Information Technology, Inc., a Nebraska corporation ("ITI"), and Fiserv, Inc.,
a Wisconsin corporation ("Fiserv"), for and on behalf of itself and all of the
operating divisions and subsidiaries (other than ITI), present and future, of
Fiserv (together with ITI and Fiserv, the "Fiserv Companies"), and Xxxxxx
Software, Inc., an Ohio corporation ("HYLAND").
RECITALS:
X. XXXXXX and the Fiserv Companies are parties to a certain
Marketing Agreement, dated January 18, 1994, as amended (the "Original Marketing
Agreement"), and a certain Loan and License Agreement, dated May 9, 1997, as
amended (the "Check License Agreement"), that amended the Original Marketing
Agreement and that separately provided for the licensing of the "Licensed Check
Products" (as defined in the Check License Agreement).
B. The current term of the Original License Agreement (as amended
by the Check License Agreement) is scheduled to expire on May 8, 2002.
C. The parties now desire to extend the term of the Original
Marketing Agreement and make certain further amendments to the provisions of the
Original Marketing Agreement, in order that the Fiserv Companies may retain the
right to market to their present and future customers XXXXXX'x OnBase
(ILLEGIBLE) Information Management System software products.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
covenants and promises herein contained, the parties hereto agree as follows:
TERMS:
1. CAPITALIZED TERMS USED IN THIS AMENDMENT AND NOT OTHERWISE DEFINED
HEREIN ARE USED HEREIN WITH THE MEANINGS ASCRIBED TO SUCH TERMS IN THE ORIGINAL
MARKETING AGREEMENT AS IN EFFECT IMMEDIATELY PRIOR TO THE DATE HEREOF. THE
ORIGINAL MARKETING AGREEMENT, AS HERETOFORE AMENDED AND AS FURTHER EXTENDED AND
AMENDED BY THIS AMENDMENT, SHALL HEREINAFTER IN THIS AMENDMENT BE REFERRED TO AS
THE "AGREEMENT." ALL REFERENCES IN THE ORIGINAL MARKETING AGREEMENT TO
"AGREEMENT" SHALL HEREAFTER HAVE THE MEANING GIVEN TO SUCH TERM IN THE PREVIOUS
SENTENCE.
2. THIS AMENDMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE
PARTIES ON AND AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
3. SECTION 1.1 OF THE ORIGINAL MARKETING AGREEMENT IS AMENDED TO READ IN
ITS ENTIRETY AS FOLLOWS:
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1.1 Products Defined. The XXXXXX software products covered by this
Agreement (hereinafter referred to as the "Products") shall be the OnBase(R)
Information Management System, all modules, new versions and enhancements
thereof, but specifically not including the "Licensed Check Products" that are
the subject of the Check License Agreement.
4. SECTION 2.1 OF THE ORIGINAL MARKETING AGREEMENT IS AMENDED TO READ IN
ITS ENTIRETY AS FOLLOWS:
2.1 Marketing Rights. In consideration of and subject to the terms
and conditions of this Agreement, HYLAND hereby grants to the Fiserv Companies,
and the Fiserv Companies hereby accept from HYLAND, an exclusive (except as
herein described), non-assignable, and non-transferable right to market the
Products, in machine-readable object code form, to persons or entities located
in the United States that are or become end users of software products of any of
the Actively Marketing Fiserv Companies (all of said persons or entities being
herein referred to as "Customers"); for all purposes of this Agreement,
"Actively Marketing Fiserv Companies" means the divisions and subsidiaries of
Fiserv that are listed on Exhibit 1 (as amended from time to time should the
parties mutually agree to add additional Fiserv Companies) attached to this
Agreement and that are actively supporting the promotion of Fiserv-branded
versions of the Products to their existing and prospective Customers; provided,
however, nothing herein contained shall prevent dealers or other marketers of
the Products that have been authorized by HYLAND ("HYLAND Dealers") that are
identified in Exhibit A, Part 1, from marketing and further licensing the
Products to Customers nor prevent those HYLAND Dealers identified in Exhibit A,
Part 2, from marketing and further licensing the Products to Customers other
than Customers of ITI. HYLAND may add to Exhibit A (either part 1 and Part 2, as
HYLAND may determine) any new HYLAND Dealer that has not been a HYLAND Dealer at
any time prior to May 8, 2002, upon notice to Fiserv on or prior to the
effective date of XXXXXX'x reseller or other marketing agreement with such new
HYLAND Dealer; provided, that, in the event HYLAND is prevented, in its
reasonable judgment, from disclosing to Fiserv the identity of any potential new
HYLAND Dealer because of an obligation of confidentiality of HYLAND that is
required by such potential new HYLAND Dealer: (a) HYLAND may omit the name and
other identifying information of such potential new HYLAND Dealer from the
notice provided above and the parties nevertheless shall treat such potential
new HYLAND Dealer as a HYLAND Dealer listed on the appropriate Part of Exhibit A
(as specified in the notice from HYLAND) for all purposes of this Agreement; and
(b) HYLAND shall notify Fiserv of the name of such new HYLAND Dealer within
fifteen (15) days after the reseller or other marketing agreement as been
entered into and the confidentiality obligation of HYLAND has terminated or has
been waived by such new HYLAND Dealer.
Notwithstanding the exclusivity granted in the proceeding paragraph,
nothing shall prevent HYLAND, for its own account, or any HYLAND Dealers
(whether or not listed on Exhibit A) from marketing and further licensing the
Products to:
(1) any Customers that are financial institutions with less than
twenty billion dollars ($20,000,000,000) in assets and that are Customers of a
"Dual Sourcing Fiserv Company," and for all purposes of this Agreement, a "Dual
Sourcing Fiserv Company" is an Actively Marketing Fiserv Company that markets,
licenses, sells, or otherwise promotes or
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distributes to Customers any software product (but, in the case of ImageSoft
Technologies, specifically excluding the Titan software product) that competes
with the Products;
(2) any Customers that are not financial institutions.
Notwithstanding the exclusivity granted in the first paragraph of this
Section 2.1, nothing shall prevent HYLAND, for its own account, from marketing
and further licensing the Products to any Customers that are financial
institutions with twenty billion dollars ($20,000,000,000) or more in assets.
The rights granted to the Fiserv Companies to market the Products are
worldwide, but are non-exclusive except as specifically set forth in the
preceding paragraphs of this Section 2.1. The rights granted hereunder also
include a worldwide, non-exclusive (except as herein described), non-assignable,
and non-transferable right to further license the Products, in machine-readable
object code from only, to the Customers upon the basis and subject to the terms
herein described.
HYLAND agrees that it will not enter into any reseller or marketing
arrangement, understanding, or agreement, other than this Agreement, with
respect to the marketing of the Products with any of the Actively Marketing
Fiserv Companies. In addition, HYLAND agrees to notify Fiserv and ITI if any
Fiserv Company contacts HYLAND regarding any reseller or marketing arrangement
with respect to the Products.
5. SECTION 3.1 OF THE ORIGINAL MARKETING AGREEMENT IS AMENDED TO READ IN
ITS ENTIRETY AS FOLLOWS:
3.1 License Fees. As consideration for the rights granted hereunder, the
Fiserv Companies agree to pay to HYLAND a license fee equal to **** of the
"Price" as set forth on Exhibit B attached to this Agreement for the applicable
Fiserv Company. The "Price" set forth therein may be modified as mutually agreed
by the parties. For this purpose, the parties agree to meet at least once
annually for the purpose of establishing a revised "Price", not less than sixty
(60) days prior to the annual anniversary date of the Agreement, and to use
their commercially reasonable efforts in good faith to negotiate and agree upon
a new "Price" to be effective as of such next annual anniversary date; provided,
that in the event the parties fail to meet, or fail to use their commercially
reasonable efforts in good faith, to agree upon a new "Price" for any period
hereunder, HYLAND shall have the right, upon not less than ninety (90) days
advance written notice to ITI (it being the responsibility of ITI to notify the
other Fiserv Companies), to adopt and establish the revised "Price", such
revised "Price" being no greater than the current "Price" plus the greater of
(i) five percent (5%); or (ii) the increase in the Consumer Price Index for All
Urban Consumers (CPI-U): U.S. City Average All Items (1982 - 1984 = 100) for the
period of time since execution of this Agreement or the last increase, as
applicable. HYLAND agrees and acknowledges that the Fiserv Companies retain full
right and authority to establish the pricing of the Products to Customers.
6. SECTION 3.2 OF THE ORIGINAL MARKETING AGREEMENT IS AMENDED TO READ IN
ITS ENTIRETY AS FOLLOWS:
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3.2 Maintenance Fees. For each period of twelve (12) months that
any of the Fiserv Companies provide maintenance and technical support of the
Products to any Customer, the Fiserv Companies shall pay to HYLAND a maintenance
fee in an amount equal to the percentage determined in accordance with the table
below of the then current Price for such Products:
CALENDAR YEAR IN WHICH
MAINTENANCE FEE IS DUE MAINTENANCE PERCENTAGE
---------------------- ----------------------
2002 ****
2003 ****
2004 ****
2005 and thereafter during the term ****
This maintenance fee percentage shall be effective for the full twelve (12)
months that any of the Fiserv Companies provide maintenance and technical
support to the involved Customer.
3.2.1 Notwithstanding the foregoing, in the event ITI is
providing maintenance and technical support to the involved Customer under terms
that ITI extends to its Customers generally and in which the involved Customer
is not required to pay any fees for maintenance and technical support services
for up to one (1) year after licensing the Products, ITI shall not be obligated
to pay any additional fees to HYLAND under this Section 3.2 for any maintenance
and technical support of the involved Customer during such period of up to one
(1) year.
7. SECTION 4.2 OF THE ORIGINAL MARKETING AGREEMENT IS AMENDED TO READ IN
ITS ENTIRETY AS FOLLOWS:
4.2 Training. During the term of this Agreement, and thereafter
for so long as any Customers remain entitled to use the Products under licenses
granted to them pursuant to this Agreement and any of the Fiserv Companies
continue to provide maintenance and technical support of the Products to such
Customers, HYLAND shall provide training to personnel of the Fiserv Companies on
the following basis:
4.2.1 Reasonable initial training shall be provided by
HYLAND at the offices of the Fiserv Companies. The Fiserv Companies shall
provide the use of their facilities without charge to HYLAND.
4.2.2 Following completion of the training required under
Section 4.2.1, HYLAND shall continue to provide training to personnel of the
Fiserv Companies, as reasonably requested by the Fiserv Companies.
The Fiserv Companies shall pay for all training services provided hereunder, and
reimburse HYLAND for reasonable costs and expenses incurred by HYLAND in
connection with training, all in accordance with XXXXXX'x training fee schedule
in effect from time to time and applicable to its dealers and end users
generally. HYLAND shall have the right to change the training fee schedule in
effect hereunder whenever it changes its training fee schedule for its
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dealers and end users generally, effective upon not less than ninety (90) days
advance written notice to ITI (it being the responsibility of ITI to notify the
other Fiserv Companies) of such change, which notice shall be accompanied by
XXXXXX'x new training fee schedule.
8. THE LAST SENTENCE OF SECTION 4.3 OF THE ORIGINAL MARKETING AGREEMENT IS
DELETED IN ITS ENTIRETY AND THE FOLLOWING SUBSTITUTED IN LIEU THEREOF:
On-site installation or training of Customers shall be available from HYLAND
upon XXXXXX'x standard terms, including but not limited to fees for services and
reimbursement of costs and expenses, for the provision of such services to its
end users generally and in effect at the time such on-site installation or
training services are ordered.
9. SECTION 4.8 OF THE ORIGINAL MARKETING AGREEMENT IS DELETED IN ITS
ENTIRETY.
10. SECTION 4.9 OF THE ORIGINAL MARKETING AGREEMENT IS DELETED IN ITS
ENTIRETY.
11. SECTION 6.2 OF THE ORIGINAL MARKETING AGREEMENT IS DELETED IN ITS
ENTIRETY AND THE FOLLOWING IS SUBSTITUTED IN LIEU THEREOF:
6.2 Patent Infringements. If notified promptly in writing of any
action brought against the Fiserv Companies alleging that the Fiserv Companies'
sublicensing, use or other disposition of the Products (or the use by any
Customer of the Products) infringes any United States, Canadian or other patent,
copyright or other proprietary right, HYLAND will defend that action at its
expense and will pay the costs of damages awarded against the Fiserv Companies
in the action, provided that (i) HYLAND shall have primary responsibility and
control of the defense of any such action and all negotiations for its
settlement or compromise; (ii) the Fiserv Companies shall cooperate with HYLAND
in defense of the action, at XXXXXX'x expense; and (iii) the action does not
result from the use of the Products for purposes for which they were not
designed or in combination with software or other products not supplied by
HYLAND, unless the Products instead of the combination of the Products with the
other software or products, is determined to be the cause of the claim. HYLAND
may, at its own expense, and the Fiserv Companies shall allow HYLAND to procure
for the Fiserv Companies and the Customers, the right to continue the use of the
Products as permitted under this Agreement or replace or modify the Products so
that they become non-infringing. Instead of or in addition to defending such
action or suit, the foregoing provisions to the contrary notwithstanding, if the
action and/or claim relates to or affects in any way the Fiserv Companies' use
of the Products, HYLAND shall not have the authority or right to settle said
action and/or claim without first obtaining the prior express written approval
of the Fiserv Companies, which approval the Fiserv Companies may withhold for
good cause and/or reasonable business concerns.
12. SECTION 6.4 OF THE ORIGINAL MARKETING AGREEMENT IS AMENDED BY DELETING
THE WORDS "SECTION 5.2 AND 5.3 HEREOF" IN THE SECOND LINE THEREOF, AND
SUBSTITUTING IN LIEU THEREOF THE WORDS "SECTION 6.2 AND 6.6 HEREOF".
13. NEW SECTIONS 6.5 AND 6.6 ARE ADDED TO THE ORIGINAL MARKETING AGREEMENT
AND SHALL READ IN THEIR ENTIRETY AS FOLLOWS:
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6.5 The Fiserv Companies' Warranties. The Fiserv Companies each
warrant that it has the right and authority to enter into this Agreement and
that it has no knowledge of any claim that the Fiserv Companies' products, which
will be used in connection with the Products, infringe any patent or copyright
or constitutes a misappropriation of any trade secret, and that this Agreement
is not in conflict with existing agreements of the Fiserv Companies. The Fiserv
Companies warrant that any private label tradenames or marks that any of the
Fiserv Companies directs HYLAND to use to customize the Products do not infringe
on the property rights of third parties.
6.6 Indemnification by the Fiserv Companies to HYLAND. The Fiserv
Companies agree to indemnify and save HYLAND harmless from and against any and
all claims, demands, costs and liabilities (including all reasonable legal fees)
arising directly or indirectly out of the activities and/or conduct of the
Fiserv Companies hereunder or claims by any other persons or entities arising
from this Agreement whatsoever to the extent that the claims, damages, costs,
demands and/or liabilities arise directly or indirectly out of the activities
and/or conduct of the Fiserv Companies hereunder and are not demonstrated to
have resulted from any direct conduct of HYLAND or breach of its representations
and warranties under this Agreement as to the Products, provided however,
nothing in this Section 6.6 shall be construed as lessening XXXXXX'x
responsibilities under Sections 6.1, 6.2, and 6.3 nor as requiring the Fiserv
Companies to indemnify or save HYLAND harmless from such responsibilities.
14. SECTION 7.6 OF THE ORIGINAL MARKETING AGREEMENT IS AMENDED TO READ IN
ITS ENTIRETY AS FOLLOWS:
7.6 Term and Termination. This Agreement shall have an extended
term of five (5) years, ending on May 8, 2007, and shall continue thereafter for
successive annual periods unless either party shall, upon written notice given
to the other party at least ninety (90) days prior to the expiration of the
then-current term of this Agreement, elect to discontinue this Agreement.
Notwithstanding any of the provisions of this Agreement to the contrary,
however, upon the occurrence of an Event of Default, as hereinafter defined, the
non-defaulting party may, upon sixty (60) days prior written notice of such
Event of Default, terminate this Agreement unless the Event of Default has been
cured within said sixty (60) day period. Notwithstanding any such Event of
Default and termination of this Agreement, XXXXXX'x obligation to maintain,
support and enhance the Products, as set forth in Article III hereof, shall
continue for so long as the terms of any Product License Agreement or
Maintenance Agreement between a Customer and the Fiserv Companies continues to
exist and obligate the Fiserv Companies for the delivery of such services.
15. SECTION 7.7.2 OF THE ORIGINAL MARKETING AGREEMENT IS AMENDED BY
DELETING THE LAST SENTENCE THEREOF.
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16. SECTION 8.1 OF THE ORIGINAL MARKETING AGREEMENT IS AMENDED TO READ
IN ITS ENTIRETY AS FOLLOWS:
8.1 No Assignment. This Agreement shall not be assigned by any of
the Fiserv Companies without the prior written consent of HYLAND, or by HYLAND
without the prior written consent of Fiserv, in each case which consent shall
not be unreasonably withheld.
17. SECTION 8.8 OF THE ORIGINAL MARKETING AGREEMENT IS AMENDED TO READ IN
ITS ENTIRETY AS FOLLOWS:
8.8 Choice of Forum. Any action arising out of or related to this
Agreement or the transaction herein described, whether at law or in equity, may
be instituted in and litigated in the state or federal courts of the State of
Nebraska or the State of Ohio. In accordance herewith, the parties submit to the
jurisdiction of the courts of said state.
18. IN ALL OTHER RESPECTS, THE ORIGINAL MARKETING AGREEMENT REMAINS IN FULL
FORCE AND EFFECT.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date and year first above written.
INFORMATION TECHNOLOGY, INC. XXXXXX SOFTWARE, INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxx Xxxxxxxxxxx
------------------- --------------------------
Title: President Title: Exec. V.P.
Address: 0000 Xxx Xxxxxx Xxxx Address: 00000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
FISERV INC. (for itself and for all other Fiserv Companies except ITI)
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Title: Chairman
Address: 000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
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Exhibit A, Part 1
December 10, 1993
Authorized Dealer List
Xxxxxx Software, Inc. -- All Customers
****
Lenexa, KS
****
Denver, CO
****
Omaha, NE
****
Davenport, IA
****
Madison Lake, MN
****
Minneapolis, MN
****
Clearwater, FL
****
Portland, OR
****
Honolulu, HI
****
Phoenix, AZ
****
Rocky Hills, CT
****
Ann Arbor, MI
****
Cleveland, HO
****
Minneapolis, MN
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Exhibit A, Part 2
May 8, 2002
Authorized Dealer List
Xxxxxx Software, Inc. -- All non-ITI Customers
****
****
****
****
****
****
****
****
****
****
****
****
****
****
****
****
****
****
****
****
****
****
****
****
****
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EXHIBIT 1
TO MARKETING AGREEMENT (AS AMENDED BY THE SECOND EXTENSION
AND FURTHER AMENDMENT OF MARKETING AGREEMENT)
List of Actively Marketing Fiserv Companies:
****
****
****
****
****
****
****
****
****
****
****
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REVISED EXHIBIT B
TO
MARKETING AGREEMENT (AS AMENDED BY THE SECOND EXTENSION AND
FURTHER AMENDMENT OF MARKETING AGREEMENT)
Current Product Pricing to remain in effect and, in accordance with Section 3.1
of the Marketing Agreement, as hereby amended, the parties agree to meet within
60 days after date hereof and mutually agree upon a revised Current Price List
as contemplated by such Section 3.1, for the period through May 8, 2003.
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