EXHIBIT 10.4
LOAN AND LICENSE AGREEMENT
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH "****" AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT made and entered into this 9th day of May, 1997 (the "Effective
Date") by and among Fiserv, Inc., a Wisconsin corporation ("Fiserv"),
Information Technology, Inc., a Nebraska corporation ("ITI"), and Xxxxxx
Software, Inc., an Ohio corporation ("Hyland").
RECITALS
A. ITI and Hyland are parties to that certain Marketing Agreement,
dated January 18, 1994, as amended (the "Marketing Agreement"), pursuant to
which ITI obtained from Hyland certain exclusive marketing rights to the OnBase
Information Management System software products, as more specifically identified
in Exhibit "A" hereto (herein sometimes referred to as the "OnBase Products");
and
B. ITI is a wholly owned subsidiary of Fiserv, having been acquired by
Fiserv subsequent to execution of the Marketing Agreement; and
C. The parties desire to extend the Marketing Agreement to include
Fiserv and all of its operating divisions and subsidiaries, present and future
(the "Fiserv Companies"); and
D. Fiserv, ITI and the other Fiserv Companies (herein sometimes
collectively referred to as the "Licensees") desire to license additional Xxxxxx
software products and to provide to Hyland certain financing.
NOW, THEREFORE, in consideration of the foregoing Recitals and of the
covenants and promises herein and in the Marketing Agreement contained, the
parties hereto agree as follows:
DEFINITIONS
"Documentation" means all Hyland technical and operation manuals,
diagrams, schematics, support materials, instruction materials, "help" programs
and related materials and shall further mean and include all explanatory
information, whether in machine-readable form or otherwise, now or hereafter in
the possession, custody and/or control of Licensees, including without
limitation, any design documents, comments, notes, annotations, specifications,
structure diagrams, data-flow diagrams, flow charts and/or other technical
documentation, including any such information as is from time to time modified
by Hyland and incorporated into the Licensed Check Products or Enhancements
thereto.
1
Confidential Treatment Requested
"Enhancement(s)" means any and all revisions, upgrades, refinements,
variations, improvements, changes and/or alterations of any kind which are
incorporated into the Licensed Check Products, API or Source Code of the
Licensed Check Products at any time during the term of this Agreement and all
related Documentation, including without limitation, all enhancements
incorporated into the API. Enhancements shall include source code, together with
complete documentation and support materials for the Licensed Check Products and
all such refinements and modifications.
"Licensed Check Products" means the Xxxxxx Software Modules and
application program interface ("API") and Source Code for those programs as
specifically identified in Exhibit "C" hereto, including all earlier and later
versions and variations, or which are incorporated from time to time into the
API for this software, or that incorporate components, aspects and functions of
the Licensed Check Products, including all Source Code for the same, whether in
executable object library form or otherwise, and all their Manuals(s) therefor,
all Documentation related thereto, and all Enhancements for the same, together
with all developers' kits and APIs. Any and all Hyland products or software,
whether currently in existence or hereinafter developed or acquired by Hyland
which are not specifically identified in Exhibit "C", but which perform the same
check function as any Licensed Check Product are themselves "Licensed Check
Products."
"Licensees' Products" shall mean any and all software routines, API's,
applications, interfaces and other programs either developed by, or acquired by
Licensees from third parties, that operate in connection with the Licensed Check
Products, that do not contain, incorporate, or replicate the Licensed Check
Products, in whole or in substantial part, or which were not developed or
authored by Hyland.
TERMS
1. Confirmation of Rights to OnBase Products. The parties hereby
confirm and acknowledge that ITI and, pursuant to the provisions of
Section 9.1, Fiserv and the other Fiserv Companies hold the exclusive right to
market the OnBase Products to all present and future users of Licensees'
products and services, directly, or indirectly through a Licensees' client
offering Licensees' products and services.
2. Loan. On the Effective Date, Fiserv shall loan to Hyland the
principal sum of One Million Dollars ($1,000,000) (the "Loan") upon the
following terms:
2
Confidential Treatment Requested
2.1 Terms. The Loan shall be for an eighteen (18) month term with
principal and accrued interest at the prime rate, as defined in and
published daily by the Wall Street Journal, adjustable monthly on the
first business day of each month, being payable in full at the conclusion
of the stated term. The Loan shall be evidenced by a negotiable promissory
note (the "Note") in the form attached hereto as Exhibit "B" which shall
be executed by Hyland and delivered to Fiserv on the Effective Date.
Negotiation of the Note shall be permitted, but only to a Fiserv Company,
including ITI.
2.2 Conversion Privilege. At the election of Fiserv or the then
holder of the Note, where notice of election is made prior to thirty (30)
days before the date of maturity, the Note, including all outstanding
principal and interest, may be exchanged for and converted into equity
securities of Hyland in an amount equal to five percent (5%) of Xxxxxx'x
authorized equity securities on a fully diluted basis. The equity
securities issued pursuant to this Section 2.2 shall carry with them
protective rights, at least equal in nature and protection to all other
equity holders, preventing dilution of the holder's percentage ownership
interest in Hyland without holder's consent. In the event Fiserv or the
then Note holder elects conversion of the Note, such conversion shall
occur effective as of the maturity date of the Note through exchange of
the Note for share certificate(s) or other securities registered including
any other instruments necessary to create Licensees 5% ownership interest
in Hyland in the name of the then holder of the Note. The right to
conversion granted herein shall be negotiable or assignable only to a
Fiserv Company, including ITI, along with the Note pursuant to Section
2.2, but only upon the express written consent of Hyland, which consent
will not be unreasonably withheld.
3. First Right of Refusal. Hyland hereby grants to Fiserv a right of
first refusal covering the sale of Xxxxxx'x stock or assets upon the following
terms and conditions:
3.1 Term. The Term of this First Right of Refusal shall
commence upon execution of this Agreement and shall extend for a term
ending on the second anniversary of the Effective Date.
3.2 Xxxxxx'x Obligation. If, at any time during the Term, Hyland
receives, and desires and is able to accept, a bona fide offer to purchase
a majority or more of the issued and outstanding capital stock of Hyland
or a majority or more of the assets of Hyland, Hyland shall forthwith
provide, on a confidential basis, written notice thereof to
3
Confidential Treatment Requested
Fiserv. Such written notice shall include a copy of the offer to purchase,
and shall include the name and address of the proposed purchaser(s) and
all of the conditions relating to the price and terms of purchase. Fiserv
shall then have fourteen (14) days within which to notify Hyland in
writing that either (a) Fiserv intends to make an offer of similar terms,
subject to due diligence not to exceed thirty (30) days, or (b) Fiserv
declines to exercise its right of first refusal for the proposed
transaction only.
3.3 Fiserv's Proposal. If Fiserv elects to make a proposal, such
proposal shall be made within the thirty (30) days due diligence period
and Fiserv and Hyland shall thereafter negotiate in good faith the terms
of the definitive agreement. If, at the conclusion of the twenty (20) day
period next following the delivery by Fiserv of its proposal, the parties
have been unable to reach definitive agreement, or if Fiserv declined to
exercise its right of first refusal, then Hyland shall for a period of
four (4) months be free to consummate the transaction with the original
proposed purchaser upon terms not materially different than those
originally disclosed to Fiserv. Following the expiration of such four (4)
month term or upon the terms of the proposed transaction being materially
modified, Fiserv's right of first refusal shall be reinstated for the
remaining balance of the term.
3.4 Shareholder Restrictions. Hyland represents and agrees that,
upon execution of this Agreement, it will enter into corporate agreements
with Xxxx X. Xxxxxx, Xx., Xxxx X. Xxxxxx, Xx., Xxxxx Xxxxxx, and Xxxxxx
Xxxxxxxxxxx, imposing prohibitions on the ability of any and all of these
Hyland shareholders, to sell any amount of their shares of Hyland equity
securities without first affording Fiserv the same right of first refusal
herein given by Hyland, or to take any action that would avoid, frustrate,
hinder or impede the First Right of Refusal granted by Hyland to Licensees
in this Section 3, except, the shareholders are permitted to transfer any
portion of their shares to family members for estate or tax planning
purposes, so long as the shares so transferred are subject to the
prohibitions of this Section. Further, during the term of Fiserv's First
Right of Refusal, any shareholder may sell or otherwise transfer in the
aggregate ten percent (10%) or less of their respective shares for any
purpose without regard to the foregoing prohibition. Hyland will deliver
copies of any Agreements evidencing the foregoing to Licensees.
4. License. For and in consideration of the payment on the Effective
Date by Fiserv to Hyland of the sum of **** Hyland does, at and as of the
Effective
4
Confidential Treatment Requested
Date, grant to the Licensees (i) a worldwide exclusive, non-transferable license
in perpetuity to the object and, subject to Section 8.6 hereof, the source code
versions of the Licensed Check Products, with full and exclusive rights to
remarket and sublicense the object code version of the Licensed Check Products
to financial institutions, herein defined as banks, saving & loans, credit
unions, trust companies, and any other depository institution, establishment or
business as is identified in, defined in or falls within Major Group 60, of the
Standard Industrial Classification Manual 1987, and all other institutions,
establishments and businesses where the primary business application using the
Licensed Check products would be the processing of checks similar to a bank, as
opposed to handling of check functions as an ancillary function of another
application such as remittance processing, and (ii) a non-exclusive,
non-transferable license in perpetuity to the object, and subject to Section 8.6
hereof, the source code versions of the Licensed Check Products, with full
rights to remarket and sublicense the object code version of the Licensed Check
Products to non-financial institutions. Subject to the terms and conditions of
this Agreement, Licensees shall have the right to execute remarketing agreements
with third party distributors pursuant to which such distributors shall have a
non-exclusive right to market the object code version of the Licensed Check
Products to end-users, subject, however, to the following conditions:
4.1 Advanced Check. The Licensees' rights with respect to future
releases of the Advanced Check software product, as more specifically
identified in Exhibit "C" hereto, shall be subject to the singular
exclusion that the current end-user institutions (other than dealers or
other vendors) of Licensed Check Products specifically identified in
Exhibit "D" hereto shall be entitled to upgrade to the Advanced Check
product as commercially released by Licensees as a Private Label product
directly through their current Hyland Dealer within six (6) months
following the date of commercial release of the Advanced Check software
product by Licensees. Licensees shall permit a listed institution's
current Hyland Dealer to purchase said product for resale to such
institution based upon a list price not to exceed **** for the Advanced
Check software product upgrade. Licensees shall be entitled to retain any
revenues associated with such upgrade sales. Thereafter, any such upgrade
shall occur solely through the Licensees.
4.2 Standard Check Processor and Standard Check Statement Print.
The worldwide license of the Standard Check Processor and Check Statement
Print software products, as more specifically identified in Exhibit "C"
hereto, shall be subject to the following additional terms:
5
Confidential Treatment Requested
4.2.1 Hyland shall use good faith efforts to direct Xxxxxx'x
current remarketers of the Licensed Check Products (Exhibit "E") to
sublicense the Standard Check Processor and Check Statement Print
software products from one of the Licensees upon payment to such
Licensee of its usual charge for such sublicense, and pursuant to
the agreement terms customarily employed by such Licensee, provided,
however, if such sublicensing is not practical due to contract
obligations or other reasonable commercial purposes, and
sublicensing is provided by Xxxxxx'x remarketer, then Hyland shall
remit all revenue received from Standard Check Processor and Check
Statement Print directly to Fiserv; and,
4.2.2 From and after the Effective Date, and subject to the
terms and conditions of this Agreement, Hyland shall not enter into
nor renew any agreements with remarketers, dealers or other vendors
providing the right to sublicense Standard Check Processor and Check
Statement Print software products.
4.3 Use of Name/Private Labeling. The Licensed Check Products are
acknowledged by Licensees to be and contain Xxxxxx'x proprietary
information and trade secrets. Licensees shall retain or affix to the
Licensed Check Products and all Enhancements and products incorporating
the Licensed Check Products such evidences of ownership and copyright or
proprietary notices as Hyland may reasonably request. To support their
marketing of the Licensed Check Products, however, Licensees shall be
entitled to use the name of Hyland and any and all registered trademarks,
service marks or trade names of Hyland in connection with their promotion
and licensing of the Licensed Check Products. Hyland agrees that upon
request of a Licensee it shall "private label" the Licensed Check Products
using such product names as such Licensee may specify. Hyland shall make
such modifications as may be reasonable and possible to reflect any such
Licensed Check Products as a product of such Licensee and to reflect the
product name selected by such Licensee, subject, always, to Xxxxxx'x right
to include such proprietary notices, copyright notices or the like as are
necessary to protect the proprietary rights of Hyland in and to the
Licensed Check Products. Nothing herein contained shall be construed as
requiring Hyland to remove all screen references to Hyland or the name of
the Licensed Check Products used by Hyland. The parties intend only that
any Licensed Check Product which is private labeled be reasonably
identified with the Licensee. Contemporaneous identification with Hyland
is permitted and expected.
6
Confidential Treatment Requested
Licensee shall submit to Hyland any and all proposed uses of Xxxxxx'x
tradenames and marks prior to Licensees' commercial use for any and all
purposes including marketing and promotional materials for Xxxxxx'x
approval, which approval shall not be unreasonably withheld.
4.4 Use of Products. In addition to the right to market and
further license the Licensed Check Products, as set forth above, Licensees
shall have the right to make such uses internal to Licensees as Licensees
deem reasonably necessary, including without limitation, the right to use
the Licensed Check Products for demonstration, support and training of
their current and potential customers. Licensee may develop software
interfacing to the OnBase and Licensed Check Products for purposes of
interfacing the OnBase and Licensed Check Products with other products
owned or marketed by Licensees. Included is the right to access Xxxxxx'x
complete software system, including both the OnBase Products and the
Licensed Check Products. Any interface developed by a Licensee shall be
the proprietary and exclusive property of such Licensee. Licensees may
make such copies of the object code versions of the Licensed Check
Products as they deem necessary for any permitted activity hereunder and
for archival purposes. Licensees rights to access and utilize the source
code for the Licensed Hyland Products shall be specifically limited to
only the activities specified in Section 8.6 of this Agreement. Nothing in
this Section shall create any ownership interests or greater rights to
Licensees to the Licensed Check Products, Enhancements, Documentation
other than the license granted hereinabove.
4.5 Other Products. It is understood and agreed by the parties
hereto that, except as herein expressly provided, nothing in this Section
4 shall affect the rights of the Licensees to market the OnBase Products,
nor the rights of other Hyland remarketers to license directly Xxxxxx'x
software products other than the Licensed Check Products. It is further
understood and agreed that the Licensees shall have the right, in
perpetuity, to market the OnBase Products as necessary for the successful
implementation of, and in conjunction with their rights to market the
Licensed Check Products, at a **** discount off of Xxxxxx'x published list
price, subject, however, to the terms of Section 6 hereof. Such perpetual
right shall continue notwithstanding the expiration of the stated term of
or other termination of the Marketing Agreement.
4.6 Xxxxxx'x Intellectual Property Rights. All right, title and
interest in and to the Licensed Check Products, in
7
Confidential Treatment Requested
whole or in part, in any form, including without limitation all patent,
copyright, trade secret and all other intellectual and industrial property
rights in the Licensed Check Products and other Hyland products, and the
structure, sequence and organization of same, shall belong to Hyland and
Licensee's sole rights thereto shall be only those rights granted by
Hyland pursuant to this agreement. ITI and Fiserv (for itself and all
other Fiserv Companies) further acknowledge that Hyland has and reserves
the exclusive, worldwide right in perpetuity to protect the Licensed Check
Products, including it structure, sequence and organization, screens and
any part thereof, under any laws for the protection of intellectual and
industrial property, including without limitation, trade secrets,
trademarks, copyrights, industrial design and patents. The provisions of
Section 4.4 and 5.1.3 notwithstanding any and all portions of the Licensed
Check Products that represent developments, software, changes,
modifications, refinements, alteration, revisions, improvements provided
by Hyland to Licensees pursuant to this Agreement shall remain the
intellectual property of Hyland; and Licensees acknowledge that Hyland has
and reserves the exclusive worldwide right in perpetuity to protect its
aforesaid intellectual property, including its structure, sequence and
organization, screens and any part thereof, under any laws for the
protection of intellectual and industrial property, including, without
limitation, trade secrets, trademarks, copyrights, industrial designs and
patents.
4.7 Licensees' Intellectual Property Rights. All right, title and
interest in and to any software program, application, routine, API,
interface or other product, either developed by, or acquired by Licensees,
excepting those licensed from Hyland under this or prior Agreements or
developed by Hyland under the terms of this Agreement, or provided to
Licensees under Section 8.6, but including any revision, upgrade, or
enhancement to the Licensed Check Product developed by Licensees as
permitted in Section 8.6 hereof which operate in association with Licensed
Check Products, in whole or in part, in any form, including without
limitation all patent, copyright, trade secret and all other intellectual
and industrial property rights and other Licensees' products, and the
structure, sequence and organization of same, shall belong to Licensees.
Hyland further acknowledges that Licensees' have and reserve the
exclusive, worldwide right in perpetuity to protect Licensees' Products,
including its structure, sequence and organization, screens and any part
thereof, under any laws for the protection of intellectual and industrial
property, including without limitation, trade secrets, trademarks,
copyrights, industrial design and patents.
8
Confidential Treatment Requested
5. Responsibilities of Hyland.
5.1 Maintenance and Support. From and after the Effective Date,
Hyland shall provide all reasonably required maintenance and support
services for the Licensed Check Products to the Licensees for a term of
five (5) years from date of this Agreement. Hyland shall not be
responsible to provide any direct technical support or other services to
Licensees remarketers, dealers or customers. Such support and maintenance
services shall in any event be available by telephone during the hours of
8:00 a.m. to 8:00 p.m., Eastern time, Monday through Friday, excluding
holidays, and shall consist of at least the following:
5.1.1 Providing, within a reasonable period of time, all
upgrades, enhancements and changes developed by Hyland for the
Licensed Check Products, be they major or minor in nature, as Hyland
develops in the ordinary course of its business, including an
upgrade for the License Check Product to support an additional
operating systems if Hyland develops support for such additional
operating system for its OnBase archiving product, or as a result of
services performed at the direction of Licensees under Sections
5.1.3 and 5.1.4 of this Agreement;
5.1.2 Providing system documentation for the Licensed Check
Products regarding definition of the OnBase data base, data base
tables and security access methods;
5.1.3 An API for the Licensed Check Products for Licensees'
use in customizing the Licensed Check Products for their customers.
The API shall be developed according to agreed upon specifications
by the parties, and be updated and enhanced from time-to-time under
terms and pursuant to schedules as the parties may agree, either as
a result of Xxxxxx'x ordinary course of business, or as part of the
services performed by Hyland as directed by Licensees under Section
5.1.4 of this Agreement;
5.1.4 Not less than two thousand (2,000) hours per year of
customized development, including custom features, custom API
extensions and API integration support; any services that Hyland
performs at the direction or written request of Licensees for
upgrades, enhancements, extensions to the API, integration of third
party products or related services shall be first applied to this
obligation to provide the annual hours
9
Confidential Treatment Requested
of service, any additional hours to be billed at the rate of ****
per hour; in the event Licensees in any year during the term of this
Agreement fail to utilize the 2,000 hours of development services
offered by Hyland herein, any shortfall shall be carried forward to
the next annual period and used in such annual period before use of
the 2,000 hours originally allocated thereto, provided however, any
unused hours remaining at the end of five years shall be waived by
Licensees and shall not be carried forward as due to Licensees
during any subsequent period. For purposes of performing its
development obligations under this Section, Hyland shall assign
senior programmers familiar with the structure, sequence, and source
code for the Licensed Check Products to provide the services
itemized herein;
5.1.5 Reasonable access to the lead developers of the Licensed
Check Products for emergency assistance on a twenty-four hour, seven
day a week basis;
5.1.6 At least one dedicated technical support representative
for Licensed Check Products, in accordance with its normal business
practices; and
5.1.7 For purposes of utilizing and directing Xxxxxx'x
performance under this Section 5.1, Licensees shall designate a
relationship manager who, if requested by Hyland to confirm or
prioritize requests it receives from Licensees' employees or agents,
will serve as Licensees' authorized representative to direct the
development and technical support services Hyland shall provide to
Licensees under this Agreement. All requests for Hyland development
and related services under this Agreement shall be made in writing
to Hyland by Licensees' employees, agents or designated relationship
manager.
At the date of this Agreement and thereafter on its annual anniversary,
Fiserv shall make a non-refundable payment to Hyland of **** per year for
each of the five (5) years of obligated support hereunder. At the end of
such five (5) year term, Hyland and Fiserv may renegotiate in good faith
the terms of ongoing development and support relating to the Licensed
Check Products. Any other provision hereof notwithstanding, in the event
Fiserv gains those additional rights to the use of the source code
pursuant to Section 8.6 hereof, Fiserv may, at its option, discontinue
payment to Hyland of the annual payments required hereunder for ongoing
support, in
10
Confidential Treatment Requested
which event Hyland shall no longer be required to provide such support.
5.2 Training. During the term of this Agreement and thereafter,
for so long as required by Licensees annual payments pursuant to Section
5.1, Hyland shall provide training to personnel of Licensees, on the
following basis:
5.2.1 Reasonable initial training shall be provided by Hyland
at ITI's or Fiserv's offices for all Licensees, for a total period
of training not to exceed ninety (90) days, which training will be
provided to Licensees by Hyland on dates to be agreed upon by the
parties which can occur anytime within twelve (12) months from the
Effective Date of the Agreement, and all such training being
provided at the sole cost and expense of Hyland (provided, however,
ITI or Fiserv shall provide the use of its facilities without charge
to Hyland);
5.2.2 Following completion of the initial training required
under Section 5.2.1, Hyland shall continue to provide training to
personnel of Licensees, as reasonably requested by Licensees and at
times and as reasonably scheduled by the parties, provided, however,
any reasonable travel, lodging and meal expenses incurred by Hyland
in performance of such training shall be promptly paid or reimbursed
to Hyland by Licensees.
5.3 Updates and Enhancements. Hyland shall provide to Licensees
and Licensees may provide to their customers who have acquired a
sublicense for the Licensed Check Products, such updates, releases,
enhancements and improvements as Hyland may develop or develop for
Licensees pursuant to Section 5.1. Except as provided in Section 5.1, no
compensation shall be due to Hyland in respect of such updates, releases,
enhancements and improvements. During the term of this Agreement, and
pursuant to Section 5.1.4, Hyland and Licensees, by and through the
designated relationship manager, shall agree upon a reasonable development
and support schedule for Hyland upgrades and enhancements to be developed
by Hyland under 5.1.4 for the Licensed Check Products. Hyland will
maintain the Licensed Check Products in such a manner as is reasonably
required to keep it compatible with the system software and hardware
systems with which they are designed to perform according to the published
system requirements for the Licensed Check Products by Hyland. Further, if
Hyland develops support for an additional operating system for its OnBase
archiving product which is not supported for the Licensed Check
11
Confidential Treatment Requested
products at the date of this Agreement, at no expense to Licensees, Hyland
will provide Licensees with an upgrade for the License Check Products to
support such additional operating system.
5.4 Documentation. Hyland shall provide to Licensees all copies
necessary of the standard visually readable materials which Hyland has
published or may publish while this Agreement is in effect for use by
end-users with the Licensed Check Products. If requested by Licensees,
Hyland shall also provide to Licensees at cost reasonable supplies of all
present sales literature prepared and/or used by Hyland in marketing of
the Licensed Check Products and reasonable supplies of all updates
thereto.
5.5 Licensing of Products. Hyland acknowledges and agrees that
Licensees will license the Licensed Check Products to their customers
pursuant to their usual forms of license agreements and in accordance with
the terms of this Section. The Licensed Check Products will be sublicensed
in the same manner and may be included as a part of the software licensed
by Licensees pursuant to their normal customs and procedures and subject
to the following: Licensees may sublicense the Licensed Check Products to
their remarketers, dealers or end-users of the Licensed Check Products
provided that the sublicense with such dealer, customer or other user
meets the requirements of this Section 5.5. The sublicense required by
this Section 5.5 must be written, and shall provide, in substance, that
the sublicensee acknowledges that: (i) the sublicensed Licensed Check
Products cannot be further sublicensed or otherwise transferred by end
users; (ii) the sublicensed Licensed Check Products is provided "as is"
with no warranty or maintenance provided by Hyland; and (iii) the
sublicensee will not decompile, disassemble or reverse engineer any
sublicensed Licensed Check Products. Licensees shall not enter into any
agreements or grant any sublicenses which encumber or hinder Xxxxxx'x
proprietary rights to the Licensed Check Products. The sublicense may be
subject to any other commercially reasonable terms and conditions designed
to limit Licensees' and/or Xxxxxx'x implied or express warranties or
liability for licensed use of the Licensed Check Products.
5.6 Maintenance. Licensees will provide their remarketers, dealers
and customers with, and are free to charge for, such maintenance services
as they shall from time to time determine. Xxxxxx'x responsibilities for
maintenance is solely as set forth in Section 5.1 hereof.
12
Confidential Treatment Requested
5.7 Notification of Dealers. Hyland and Licensees shall prepare
and agree upon a notice letter to be sent to, or a provision to be
incorporated into Xxxxxx'x remarketing and dealer agreements, that
discloses the nature and extent of Licensee's exclusive marketing rights
to the Licensed Check Products under this Agreement, that Hyland shall use
in its ordinary course of business with its current, future or successor
dealers or remarketers.
5.8 Applicable Restrictions. Except as otherwise provided in
Section 4 above, from and after the Effective Date, Hyland will not
directly or indirectly promote, encourage or in any way assist or
cooperate with its customers and remarketers, both present and future, in
using Xxxxxx'x software products as a check imaging base, for financial
industry use, which would compete with Licensees rights to the Licensed
Xxxxxx Software granted herein; provided, however, nothing herein shall
prevent non-financial institution users of any Xxxxxx software product
from storing any types of documents, including check images and related
information.
6. Most Favored Customer. For any product or service provided by Hyland
to the Licensees or any of their customers, Hyland shall afford the Licensees
with most favored customer status. If, during the term of this Agreement Hyland
should ever offer the same or a substantially identical product or service to
another Hyland customer upon collective terms more favorable than available to
the Licensees hereunder, then from the time of such offer the Licensees will
also be entitled to purchase the product or service upon the same set of terms
offered to the other Hyland customer.
7. Warranties.
7.1 Licensed Check Products Warranty. Hyland warrants to Licensees
the Licensed Check Products will perform in accordance with the then
current Documentation provided by Hyland to Licensees. Hyland further
warrants that it has the right to authorize the use of the Licensed Check
Products by Licensees and the further sublicensing thereof by Licensees to
their customers, all as described in this Agreement. This Agreement is
neither in breach of nor conflict with the provisions of any agreement or
arrangement to which Hyland is a party and which relates in any manner to
the Licensed Check Products or the rights granted to Licensees hereunder.
HYLAND DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
XXXXXX'X SOLE OBLIGATION IN THE EVENT THE LICENSED XXXXXX SOFTWARE DOES
NOT PERFORM AS WARRANTED SHALL BE, AT XXXXXX'X
13
Confidential Treatment Requested
DISCRETION, TO USE REASONABLE DILIGENT EFFORTS TO (i) CORRECT ANY DEFECT
OR BUG IN THE LICENSED XXXXXX SOFTWARE FOLLOWING RECEIPT OF NOTIFICATION
FROM LICENSEES AND DELIVER A REVISION INCORPORATING THE FIX OR (ii)
REPLACE DEFECTIVE MEDIA WITH LICENSED XXXXXX SOFTWARE WHICH PERFORMS AS
WARRANTED. EXCEPT AS EXPRESSLY STATED IN THIS SECTION, THERE ARE NO
WARRANTIES OR CONDITIONS PROVIDED BY HYLAND, EXPRESS OR IMPLIED, BY
OPERATION OF LAW, STATUTE, OR OTHERWISE, WITH RESPECT TO THE LICENSED
XXXXXX SOFTWARE OR ANY SERVICE PROVIDED HEREUNDER. NO REPRESENTATION OR
OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS
REGARDING PERFORMANCE OF THE LICENSED XXXXXX SOFTWARE, WHICH IS NOT
CONTAINED IN THIS AGREEMENT, SHALL BE BINDING ON HYLAND EXCEPT AS
EXPRESSLY STATED IN THIS SECTION, HYLAND WILL NOT BE LIABLE FOR ANY BUG,
ERROR, OMMISSION, DEFECT, DEFICIENCY OR NONCONFORMITY IN ANY PRODUCT OR
OTHER SOFTWARE.
7.2 Patent Infringements. If notified promptly in writing of any
action brought against Licensees alleging that Licensees' sale, use or
other disposition of the Licensed Check 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 Licensees 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 comprise; (ii) Licensees
cooperate with Hyland in defense of the action; and (iii) the action does
not result from the use of the Licensed Check Products for purposes for
which it was not designed or in combination with software or other
Products not supplied by Hyland, unless the Licensed Check Products,
instead of the combination of the Licensed Check Products with the
software or other Products, is determined to be the cause of the claim.
Hyland may, at its own expense, and Licensees shall allow Hyland to
procure for Licensees the right to continue the use of the Licensed Check
Products as permitted under this Agreement or replace or modify the
Licensed Check Products so that it becomes 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 Licensees' use of the Licensed Check 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 Licensees,
which approval Licensee may withhold for good cause and/or reasonable
business concerns.
7.3 Hyland Warranties. Should any breach relating to the foregoing
warranties granted to Licensees by Hyland
14
Confidential Treatment Requested
under this Agreement regarding the Licensed Check Products occur, and such
Hyland breach is the direct and proximate cause for a claim for breach in
the warranties granted by Licensees contained in its Agreements with its
customers, Hyland shall take reasonable steps to correct any actual
defects in the Licensed Check Products, or, if notified promptly in
writing of any action brought against Licensees alleging a breach of
warranty by Licensees of the Licensed Check Product, Hyland will defend
that action, or the specific portion of the action directly resulting from
Xxxxxx'x breach of its warranty to Licensees under this Agreement, at its
expense, and will pay the costs of damages awarded against Licensees 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) Licensees cooperate with Hyland in defense
of the action; and (iii) the action does not result from the use of the
Licensed Check Products for purposes for which it was not designed.
Nothing in this Section shall extend or create any implied or express
warranties to Licensees or Licensees' remarketers, dealers and customers
other than those specifically stated in Section 7.1.
7.4 Limited Liability. Except for those matters indemnified
against under Section 7.2 hereof, neither Hyland nor any Licensee shall be
liable for lost profits or other special, incidental or consequential
damages arising from any breach of warranty, breach of contract,
negligence or any other legal or equitable theory even if advised of the
possibility of such damages.
7.5 Licensees' Warranties. Fiserv and ITI 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 Licensees' products, which will be used in
connection with the Licensed Check 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 Licensees.
Fiserv and ITI warrant that any private label tradenames or marks that any
Licensee directs Hyland to use to customize the Licensed Check Products do
not infringe on the property rights of third parties.
7.6 Indemnification by Licensees to Hyland. Licensees 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
Licensees or claims by any other persons or entities arising from this
Agreement
15
Confidential Treatment Requested
whatsoever to the extent that the claims, damages, costs, demands and/or
liabilities 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 Licensed Check Products and other Hyland products,
provided, however, nothing in this Section 7.6 shall be construed as
lessening Xxxxxx'x responsibilities under Sections 7.1, 7.2 and 7.3 nor as
requiring Licensees to indemnify or save Hyland harmless from such
responsibilities.
8. Miscellaneous.
8.1 Non-Disclosure. ITI and Fiserv acknowledge that the Licensed
Check Products are the confidential and proprietary property of Hyland.
Hyland acknowledges the software of ITI and other Licensees with which the
Licensed Check Products may be marketed is the proprietary and
confidential property of ITI and such other Licensees. ITI, Fiserv (for
itself and all other Fiserv Companies) and Hyland agree to take all
reasonable steps necessary to ensure that neither the Licensed Check
Products nor any of the software of ITI or any other Licensee nor the
Documentation for the Licensed Check Products nor any documentation for
the software of ITI or any other Licensee, nor any portion of any thereof,
on magnetic tape or disc or in any other form, shall be made available or
disclosed by Hyland or Licensees or any of their agents or employees to
any other person, firm or corporation, except as contemplated by this
Agreement. Disclosure by Licensees or Hyland of the confidential and
proprietary information of the other to their employees and agents to the
extent such disclosure is reasonably necessary shall be permitted,
provided however, that both Hyland and Licensees shall cause their
employees and agents to observe the non-disclosure covenants set forth
above. The parties understand that the combination of ideas, procedures,
processes, systems, logic, coherence and methods of operation embodied
within a party's programs are trade secret information. Neither Hyland nor
the Licensees will use any such trade secret information of the other for
any purpose not expressly authorized by this Agreement or authorized by
the other party in writing and will not disclose any such trade secret
information to any third party without prior written consent of the other
party, except pursuant to a court order or the order of other governmental
authority of competent jurisdiction. This paragraph shall survive the term
or termination of this Agreement without limitation as to duration.
8.2 Additional Confidential Information. In addition to protection
of the Licensed Check Products, Licensees'
16
Confidential Treatment Requested
software and any documentation for either, as provided in Section 8.1, the
parties agree to hold in trust and confidence, to take all reasonable
steps to avoid publication or disclosure of, and to treat the other
party's Confidential Information in the same manner as it treats its own.
For purposes hereof, "confidential information" shall mean all information
and/or material obtained from, or disclosed by the other party which
relates to past, present, or future research and development or business
activities, and which is clearly labeled or identified at the time of
disclosure as "Confidential Information".
8.3 Exceptions. For the purpose of Sections 8.1 and 8.2, "trade
secret information" and "confidential information" shall not include and
the restrictions of Sections 8.1 and 8.2 shall not apply to:
8.3.1 any information which, as of the date hereof, is already
in the public domain;
8.3.2 any information which comes into the public domain other
than through the acts or omissions of the party entrusted with such
information hereunder;
8.3.3 any information lawfully obtained by a party hereto or
its licensees from third parties who are not subject to a
non-disclosure obligation; and
8.3.4 any information independently developed by a party or
its licensees without use of or reference to, in any fashion, the
trade secret or confidential information of the other party.
8.4 Cooperation. Hyland, ITI and Fiserv shall from and after the
execution of this Agreement cooperate one with the other and provide such
agreements and other documents as may be reasonably required to effectuate
the purposes and provisions of this Agreement.
8.5 Legal Relationship. Except as expressly provided herein,
authorization has not been granted and none is possessed for either
Hyland, ITI or Fiserv to sign or endorse any other party's name on any
order, agreement, contract or instrument of any nature, or to contract any
debt or enter into any obligation, either express or implied, affecting
the rights or obligations of the other. Nothing in this Agreement shall be
construed as constituting one party the agent or legal representative of
the other party for any purpose whatsoever nor shall this Agreement be
construed as constituting a joint venture or partnership of any kind or
nature whatsoever. Except as provided herein,
17
Confidential Treatment Requested
Xxxxxx'x right to market the Licensed Check Products, and any other
software, hardware or firmware remains unrestricted, as does Licensees'
right to purchase from others.
8.6 Access to Source Code. Hyland shall provide the Licensees with
source code for the Licensed Check Products for the specified and limited
use (i) of complying with terms for source code escrow deposit that
Licensees may be required to perform as a condition of an agreement with
its remarketers, dealers or customers, in which case Licensees shall
submit the proposed source code escrow deposit agreement to Hyland for
review and approval, which approval will not be unreasonably withheld; and
(ii) for any purpose to support the rights granted to Licensees under this
Agreement including but not limited to (a) the development of Licensees'
applications or third party applications for integration with the Licensed
Check Products, or (b) for the development of revisions, upgrades or
enhancements to the Licensed Check Products. Licensees agree that they
will negotiate in good faith to protect Xxxxxx'x rights in each source
code escrow agreement they are required to enter into with any of its
Accounts. Licensees shall protect and keep confidential any Hyland source
code Licensees may obtain under this Section. In no event shall any Hyland
source code be provided to remarketers, dealers or customers of the
Licensees. Additionally, the Licensees shall have the right to possess,
access, and use the source code version of the Licensed Check Products for
the specific and limited purposes and under the terms and conditions of
this Agreement in the event of (i) the discontinuance of business
activities by Hyland for a continuous period of thirty (30) days, (ii) a
material breach of performance by Hyland regarding its obligations to
Licensees under Section 5 of this Agreement, where such material breach is
uncorrected after thirty (30) days from receipt of notice of breach from
Licensees by Hyland, (iii) the entry of an order for relief against Hyland
in federal bankruptcy proceedings, or (iv) the filing of involuntary
bankruptcy proceedings against Hyland where such proceedings are not
dismissed or otherwise disposed of within ninety (90) days from date of
filing. Hyland shall, on a schedule to be agreed upon by Hyland and
Licensees' designated relationship manager, update the source code in its
possession to keep it current with the then current version of the
Licensed Check Products. Hyland, may in its discretion, and upon terms and
conditions it deems necessary to protect its ownership interests in and to
its intellectual property, provide Licensees, as needed on a case-by-case
basis, limited and restricted access to the source code for other Xxxxxx
OnBase products. Nothing in this Section or this Agreement shall be
construed to
18
Confidential Treatment Requested
imply or grant to Licensees any right to the access or use of Hyland
source code other than for the specific purposes stated herein.
9. Amendment of Marketing Agreement. The Marketing Agreement is hereby
amended as follows:
9.1 Additional Licenses. The Marketing Agreement is hereby
expanded to include Fiserv and the Fiserv Companies as additional
licensees thereunder holding all of the rights and privileges and subject
to all of the obligations of ITI pursuant to the Marketing Agreement.
Correspondingly, the exceptions to the Marketing Agreement in Section 2.1
which permit Hyland to market its software to those Hyland dealers
identified in Exhibit A thereto, is expanded to also include the marketing
of Hyland Products, other than Licensed Check Products, to those Hyland
dealers identified in Exhibit "E" attached to this Agreement. Unless the
context clearly otherwise requires each reference to ITI contained in the
Marketing Agreement shall be read to include all of the Licensees as
defined in this Loan and License Agreement. As it pertains to financial
institutions, Licensees' market is hereby expanded to be worldwide. In the
event of any conflict between the terms and conditions of any provisions
or terms of this Section 9 and those contained in the prior Marketing
Agreement or Amendments thereto, the terms and conditions of this Loan and
License Agreement shall control.
9.2 Extended Term. The term of the Marketing Agreement as set
forth in Section 7.6 thereof is hereby extended until five (5) years from
the Effective Date of this Loan and License Agreement.
9.3 New Sections. There is hereby added to the Marketing Agreement
the following Sections:
3.4 Most Favored Customer. For any product or service
provided by HYLAND to the Licensees or any of their customers,
HYLAND shall afford the Licensees with most favored customer status.
If, during the term of this Agreement HYLAND should ever offer the
same or a substantially identical product or service to another
HYLAND customer upon collective terms more favorable than available
to the Licensees hereunder, then from the time of such offer the
Licensees will also be entitled to purchase the product or service
upon the same set of terms offered to the other HYLAND customer.
19
Confidential Treatment Requested
6.3.1 Licensees other than ITI may submit their forms of
agreement to HYLAND for approval, which approval shall not be
unreasonably withheld. Following such approval, the Licensee
submitting such agreements shall be entitled to use such agreements
in the sublicensing of the OnBase Products in like manner to ITI's
use of ITI's agreements.
9.4 Termination of Exclusivity. The exclusivity of the marketing
rights for the OnBase Products as set forth in the Marketing Agreement and
as hereunder extended to Fiserv and the Fiserv Companies shall terminate
if the Licensees, collectively, fail to promote, in good faith, the OnBase
Products within their market, provided, however, Hyland shall have first
provided the Licensees with sixty (60) days advance written notice of the
alleged deficiencies and the Licensees shall have failed to correct such
deficiencies within said sixty (60) day period.
Except as herein specifically amended, the Marketing Agreement remains in full
force and effect.
10. General.
10.1 Assignment. This Agreement shall not be assigned by either
party without the prior written consent of the other party, which shall
not be unreasonably withheld.
10.2 Titles. Titles and paragraph headings are for reference
purposes only and are not be to considered as part of this Agreement.
10.3 Waiver. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver shall be
effective unless made in writing and signed by an authorized
representative of the party to be charged therewith.
10.4 Severability. In the event that any provision of this
Agreement shall be illegal or otherwise unenforceable, such provision
shall be severed from this Agreement and the entire Agreement shall not
fail on account thereof, the balance of this Agreement continuing in full
force and effect.
10.5 Notices. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below or to such other address as such
party shall identify in a notice complying with this subsection 10.5 and
20
Confidential Treatment Requested
shall be given by certified or registered mail. Any such notice shall be
deemed given on the date of deposit in the mail.
10.6 Entire Agreement. The parties hereto acknowledge that each
has read this Agreement, understands it, and agrees to be bound by its
terms. The parties further agree that this Agreement and any modifications
made in writing pursuant to it, together with the Marketing Agreement, as
herein amended, constitute the complete and exclusive expression of the
terms of the agreement between the parties, and supersede all prior or
contemporaneous proposals, oral or written, understandings,
representations, conditions, warranties, covenants, and all other
communications between the parties relating to the subject matter of this
Agreement. The parties further agree that this Agreement may not in any
way be explained or supplemented by a prior or existing course of dealings
between the parties, by any usage of trade or custom, or by any prior
performance between the parties pursuant to this Agreement or otherwise.
No amendment of this Agreement shall be effective unless in writing and
signed by both of the parties hereto.
10.7 Governing Law. This Agreement shall be enforced in accordance
with and governed by the laws of the State of Nebraska.
10.8 Attorney's Fees. In the event any action or proceeding is
brought in connection with this Agreement, the prevailing party therein
shall be entitled to recover its costs and reasonable attorney's fees.
21
Confidential Treatment Requested
IN WITNESS WHEREOF, the parties have duly executed this Agreement the date
and year first above written.
FISERV, INC. (for itself and for INFORMATION TECHNOLOGY, INC.
all other "Fiserv Companies")
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------ ----------------------------------
Vice Chairman Xxxxxx X. Xxxxxx,
President
Address: 000 Xxxxxx Xxxxx Address: 0000 Xxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
XXXXXX SOFTWARE, INC.
BY: /s/ Xxxx X. Xxxxxx Xx.
------------------------------
Xxxx X. Xxxxxx Xx.
Chief Executive Officer
Address: 00000 Xxxx Xxxx Xxxxx X-00
Xxxxx Xxxxx, XX 00000
22
Confidential Treatment Requested
Exhibit "A"
ONBASE(R) PRODUCTS
Single User Server License
(OBSUSL) OBSUSL is required for each institution
using a standalone version of the OnBase
Database and for each OnBase Database.
Requires a SQL Database.
Multi-User Server License
(OBMSVR) OBMSVR is required for each institution
using a network version of an OnBase
Database and for each OnBase Database.
Includes three named OnBase Clients.
Requires a SQL Database.
Internet Server
(OBISVR) Includes five concurrent connections.
Additional concurrent seats may be added
using OBCLNT2.
Full Text Indexing Server
(OBFT) This is a per-workstation license which
allows the user to access and populate a
full text indexed database or databases.
Host Application Enable
(OBHOST) One OBHOST is required for each
workstation that utilizes the Host
Application Enabler. Requires
OBCLNT1 or OBCLNT2.
MAPI/VIM Mail Services
(OBEML) One OBEML is required for each
customer site sending e-mail from
OnBase to a MAPI or VIM system.
Requires OBCLNT1 or OBCLNT2.
Exception Reports
(OBRPT) OBRPT is required for each
workstation creating exception
reports. Requires OBMSVR or OBSUSL.
Named Client
(OBCLNT1) One OBCLNT1 is required for each
named workstation that is accessing
information with the OnBase System.
23
Confidential Treatment Requested
OBCLNT1 Clients have full-time
access to the OnBase System.
Multiple OBCLNT1's require OnBase
Network (OBMSVR).
Concurrent Client
(OBCLNT2) One OBCLNT2 allows up to five
Clients access to the OnBase System
at the same time. Requires OnBase
Multi-User Server License (OBMSVR).
Standard Cold Processor
(OBCOLD) Standard Cold Processor is a 16-bit
single-threaded application that
provides import of cold data into the
OnBase System. This module can be run
as a standalone (includes OBSUSL,
requires a SQL Database) or as part of
an OnBase Network (requires OBMSVR).
Advanced Cold Processor Advanced Cold processor is a 32-bit
multi-threaded application that
provides high speed import of cold
data into the OnBase System. It is
designed specifically for the
Windows NT environment on single or
multi-processor servers.
Document Imaging
(OBSCAN) OBSCAN is required for each workstation
that is scanning documents via a XXXXX
or Kofax compatible device or
interface. This module can be run as a
standalone (includes OBSUSL, requires a
SQL Database) or as part of an OnBase
Network (requires OBMSVR).
Document Import
(OBDIP) OBDIP is required for each workstation
that is batch importing documents and
indexes into the OnBase System. This
module can be run as a standalone
(includes OBSUSUL, requires a SQL
Database) or as part of an OnBase
Network (requires OBMSVR).
24
Export
(OBEXP) One OBEXP is required for each
workstation exporting data from an
OnBase Database. Requires OBCLNT1 or
OBCLNT2.
CD Mastering
(OBCDMS) One OBCDMS is required for each
workstation mastering CDs. Requires
OBEXP and OBCLNT1 or OBCLNT2.
Publishing
(OBCDP) One OBCDP is required for each
publishing workstation. Renewable
annual license based on the number of
media sources produced (i.e. CD-ROM or
optical. Requires OBEXP and a SQL
Database.
25
Confidential Treatment Requested
Exhibit "B"
$1,000,000 May 9th, 1997
PROMISSORY NOTE
For value received, Xxxxxx Software, Inc., an Ohio corporation ("Maker"),
promises to pay to the order of Fiserv, Inc., a Wisconsin corporation ("Payee")
the principal sum of One Million Dollars ($1,000,000.00), together with all
accrued interest thereon on November 9th, 1998. Interest on the principal sum
shall accrue from the date hereof at a rate equal to the Prime rate, as defined
in and published daily in the Wall Street Journal, published on the date hereof,
which rate shall be adjusted monthly on the first business day of each month to
the Prime rate so published on each such first business day. Payment shall be
made to Payee at 000 Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000. Interest shall be
calculated on the basis of a 360-day year for the actual days elapsed.
The Maker hereby waives presentment, demand of payment, protest, and
notice of non-payment, and any and all other notices and demands whatsoever.
The acceptance by the Payee of security for the performance of the terms and
provisions herein contained shall not in any way affect the liability of the
Maker.
With the consent of Payee, partial payments, in whole or in part, may be
made and shall be applied first to accrued interest and then to principal. If
not paid when due, this Note shall bear interest at a default rate of Prime (as
hereinabove defined) plus five percent (5%) per annum. Failure by Payee or any
subsequent holder to insist on payment when due shall not be deemed to be a
waiver of such payment on the due date nor on any subsequent date.
In no event shall interest (including any charge or fee held to be
interest by a court of competent jurisdiction) accrue hereunder in excess of
the highest contract rate allowable by law at the time such indebtedness shall
be outstanding and unpaid, and if, by reason of the acceleration of maturity of
such indebtedness or for any other reason, interest in excess of the highest
legal rate shall be due or paid, any such excess shall constitute and be
treated as a payment on the principal hereof and shall operate to reduce such
principal by the amount of such excess, or if in excess of the principal
indebtedness, such excess shall be waived or refunded to the Maker.
Page 2
This Note is given in and shall be interpreted according to the law of the
State of
Nebraska. In the event suit is necessary to enforce and collect this
Note, it may be brought in any state or federal court located in the State of
Nebraska. The Maker submits to the jurisdiction of such courts and appoints the
Secretary of State of the State of
Nebraska as its agent for service of process.
The obligations, covenants, waivers, agreements, terms, provisions and
conditions of this Note as well as the obligations arising therefrom bind Maker
and its successors, legal representatives and assigns and inure to the benefit
of Payee and its endorsees, transferees, successors, legal representatives and
assigns.
XXXXXX SOFTWARE, INC.,
an Ohio corporation
By: /s/ Xxxx X. Xxxxxx, Xx., C.E.O.
-------------------------------
Its: Chief Executive Officer
------------------------------
Confidential Treatment Requested
Exhibit "C"
CHECK AND STATEMENT PRINT PRODUCTS
Standard Check Processor
(OBCHECK)
Standard Check Processor is a 16-bit, single-threaded
stand-alone application that provides import of check images
into the OnBase System. This module can be run as a standalone
(includes OBSUSL, requires a SQL Database) or as part of an
OnBase Network (requires OBMSVR).
Advanced Check Processor
(CURRENTLY IN BETA STAGE
AND NOT A COMPLETED
COMMERCIAL PRODUCT)
Advanced Check Processor, a stand-alone application, which is
presently under development as a planned upgrade and is not
presently complete, upon commercial release, is designed as a
32-bit, multi-threaded, server-based application that will
provide high-speed import of large volumes of check images and
related items captured (by third party software) on a high-speed
sorter or similar device into the OnBase System. It is designed
specifically for the Windows NT environment on single or
multi-processor servers and works in conjunction with Oracle
Server running on the same machine. It is designed to handle up
to 200,000 items per hour (average throughput) on a high-end
quad-processor server, under normal circumstances. Imported
items are immediately available to client workstations.
Check Statement Print
(OBSTMT)
Check Processor Image Statements (Check Statement Print) is a
stand-alone application that provides production printing of
check image statements. It requires OnBase Network (OBMSVR and
Standard or Advanced Cold Processor. For purposes of this
Agreement, this module shall refer solely to the use of Hyland
Statement Print connection with
28
Standard Check Processor or Advanced Check Processor or any
associated Hyland Check application.
29
Confidential Treatment Requested
Exhibit "D"
**** Chicago IL **** ****
**** Lakewood OH **** ****
**** Rising Sun MD **** ****
**** Oklahoma City OK **** ****
**** LaCrosse WI **** ****
**** Simi Valley CA **** ****
**** Mesquite TX **** ****
**** Miami FL **** ****
**** Belton MO **** ****
**** Atlanta Ga **** ****
**** Miami FL **** ****
**** Somerset PA **** ****
**** Xxxxx City PA **** ****
**** Finley ND **** ****
**** Dunkirk NY **** ****
**** Key Largo FL **** ****
**** Miami FL **** ****
**** River Falls WI **** ****
**** Munich ND **** ****
**** Xxxxx CO **** ****
**** Washington DC **** ****
**** Downington PA **** ****
**** San Matco CA **** ****
**** Chicago IL **** ****
**** Ellicott MD **** ****
**** Angola NY **** ****
**** Baltimore MD **** ****
**** Belleville PA **** ****
**** Xxxxxx ME **** ****
**** Elderton PA **** ****
**** Little Falls NY **** ****
**** Hoffman IL **** ****
Estates
**** Xxxxxxxxx OR **** ****
**** Malone NY **** ****
30
Confidential Treatment Requested
EXHIBIT "E"
Current Hyland Dealers - Note: Dealers marked with an + indicate banking
activity which included right to sell check products
**** **** ****+
Chicago, IL St. Louis, MO Lenexa, Kansas
**** **** ****+
Baton Rouge, Louisiana Dayton, Ohio Clearwater, FL
**** **** ****
Ajax Ontario, Canada Xxxxxxxx, XX Xxxxx Xxxxxx, Xxxx
**** ****+ ****
Buffalo, New York Memphis, Tennessee Troy, Michigan
****+ **** ****
Irving, Texas Omaha,
Nebraska Denver, CO
**** **** ****
Caguas, Puerto Rico Puerto Rico, Mexico Houston, Texas
**** **** ****
Plano, Texas Houston, Texas Hasbrouck Heights, New
Jersey
**** **** ****
San Jose, California Lebanon, New Jersey Jackson, Mississippi
****+ **** ****
Xxxxxxxx, Xxxxxxxxx Xxxx Xxxx Xxxx, Xxxx Galena, Ohio
**** **** ****
Chicago, Illinois Xxxxxxxxxx, Illinois Greenville, North Carolina
**** **** ****
Martinsville, New Jersey Manhattan, Kansas Cuyahoga Falls, Ohio
****+ **** ****
Englewood, Colorado Birmingham, Alabama Morgantown, West Virginia
**** **** ****
Havertown, Pennsylvania Arlington, Virginia Rosemont, Pennsylvania
**** ****+ ****+
Parker, CO Xxxxxxxx, Illinois Columbus, Ohio
****
Oslo, Norway
31
Confidential Treatment Requested
**** ****+ ****+
Euclid, OH Maitland, Florida Omaha,
Nebraska
**** **** XXXXXXXXX XXXXXXX
Xxxxxxxx, Xxxx 00000 Sioux Falls, South Dakota PROPOSED CONTRACTS
**** ****+ *****
Austin, TX Spring, Texas Portland, OR
**** ***** ****
Jackson, MS Plano, Texas Austin, TX
****+ **** ****
Branson, MO 00000 Xx. Xxxxx, XX Xxx Xxxxxxx, XX
**** **** ****
Tulsa, Oklahoma Cleveland, Ohio Los Angeles, CA
**** **** ****
Xxxxxxxxx, Xxxxxxxxxxxx Xxxxxxxx, Xxxxxx XxXxxxx, XX
**** **** ****
Oklahoma City, OK Pittsburgh, Pennsylvania St. Louis, MO
****+ **** ****
Madison Lake, Minnesota Tampa, Florida Omaha, NE
**** **** ****
Xxxxxxxx Xxxx, Xxxxxxxxxx Xxxxxxx, Xxxxxxx Xxxxxx Xxxx, XX
**** **** ****
Murfreesboro, Tennessee Marietta, Georgia Saratoga, WY
**** ****+
Santiago, Chile Fargo, ND
**** ****
Mandan, ND Cleveland, Ohio
**** ****
North Hollywood, California Denver, Colorado
**** ****+
Little Rock, AR Phoenix, Arizona
****+ ****+
Tampa, Florida \ Dallas, TX Mosinee, WI
**** ****
St. Louis, MO Xxxx Valley, Maryland
**** ****
Denver, Colorado Austin, Texas
32
