EXHIBIT 10.6.2
AMENDMENT #2
TO
STRATEGIC RELATIONSHIP AND SOFTWARE LICENSE AGREEMENT
BY AND BETWEEN HEWLETT-PACKARD COMPANY
AND CLEARCOMMERCE CORPORATION
DATED SEPTEMBER 30, 1999
WHEREAS, Hewlett-Packard Company ("HP") and ClearCommerce Corporation
("ClearCommerce" or "CCC") have entered into a Strategic Relationship and
Software License Agreement dated September 30, 1999 (the "Agreement"); AND
WHEREAS, HP and ClearCommerce amended the Agreement by Amendment #1, dated
____________, and desire to further amend the Agreement as set forth below to
reflect expansion of their relationship to include HP's appointment as an
original equipment manufacturer;
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereby agree to amend the Agreement as follows:
1. Section 1, DEFINITIONS, is amended by adding the following definitions:
"API's or CCC API's" means the external and internal Application Programming
Interfaces developed by Clear Commerce, namely a set of programmatic calls into
the application which allow applications and Extensions to control, be
controlled by, or alter the behavior of the Program(s) in a clearly defined
fashion. The term API includes any available development tools, documentation
and software developer's kits required to make use of the programming interfaces
owned or licensable by ClearCommerce without royalty obligations.
"HP API's" means the external and internal Application Programming Interfaces
developed by HP, namely a set of programmatic calls into the application which
allow applications to control, be controlled by, or alter the behavior of HP's
IPS products, and similar future products ("HP IPS Products"), in a clearly
defined fashion. The term HP API includes any available development tools,
documentation and software developer's kits required to make use of the
programming interfaces owned or licensable by HP without royalty obligations.
"Extension" means software code developed by or on behalf of HP using the CCC
API's to add functionality or differentiation to the Program(s) which interfaces
with CCC API's but which does not alter or modify the source code to the
Program(s) as would a derivative work.
"ClearCommerce Extension" means software code developed by or on behalf of
ClearCommerce using the HP API's to add functionality or differentiation to the
HP IPS Products which interfaces with HP API's but which does not alter or
modify the source code as would a derivative work.
"Servers" means one box installed at a particular customer site which may
include 1 or more CPU's running a single copy of the Operating System for the
Programs.
"Training Materials" mean those materials used by ClearCommerce to provide sales
and technical training to its end users and sales and technical training
materials used for train-the-trainer programs including but not limited to
Documentation, coursework, reviewer guides, competitive product analyses and
product literature.
2. Subsection 2.3, Enhancements, is amended by replacing it with the following:
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2.3 [*]
[*] 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.
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[*]
3. Subsection 3.7, Ownership, is amended to add the following at the end: [*]
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The parties jointly hold all right, title and interest in jointly developed
software, without accounting obligations as described in a development
agreement or statement of work governed by this Agreement. ClearCommerce
retains all its right, title and interest in the ClearCommerce Extension(s)
developed by or on behalf of ClearCommerce.
4. Section 3.1, License to the Program, is amended to add: [*]
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5 Section 3, RIGHTS GRANTED AND RESTRICTIONS, is amended by adding the
following provisions as subsections 3.10, 3.11 and 3.12:
3.10 License to the API's. ClearCommerce hereby grants to HP, under
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ClearCommerce's intellectual property rights, a [*] also grants to HP,
under ClearCommerce's intellectual property rights, [*] external
distribution by ClearCommerce to HP customers together with the Licensed
Program as described in the license grant contained in subsection 3.1.
3.11 License to the HP API's. HP hereby grants to ClearCommerce, under HP's
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intellectual property rights, [*]. HP also grants to ClearCommerce, under
HP's intellectual property rights, [*]
3.12 HP will use commercially reasonable efforts to [*] to allow HP to [*]
under this Agreement under such terms and conditions as acceptable to HP
in its sole discretion.
5. Subsection 4.1, Sales Model, is deleted and replaced with the following:
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4.1 Sales Model. HP and ClearCommerce agree to participate in a co-selling
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program for a period of [*] commencing on the Effective Date of this
Amendment #2 ("co-selling period"). The parties will meet within 30 days
from the Effective Date of this Amendment #2 to finalize their revised
rules of engagement for the co-selling program including revenue and
commission allocations for the HP and ClearCommerce sales forces. During
the co-selling period, ClearCommerce agrees that its sales force may
receive compensation regardless of whether HP or ClearCommerce closes the
sale of the Programs. During the 3 month co-selling period and for those
deals listed on the attached Exhibit K, to be mutually agreed upon within
10 days of executing this Amendment #2, [*]
[*] 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.
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[*] of this Amendment No. 2. For [*]thereafter, ClearCommerce will use
commercially reasonable efforts to provide sales support (exclusive of
training) to HP on a resource available basis for strategic sales deals,
as mutually agreed. For . professional services assistance during the co-
selling period, CCC will supply [*] of effort without fee and any
additional services will be charged at [*] or as mutually agreed. For 3
months after the co-selling period, should HP request a representative of
ClearCommerce to participate in a standard sales call after the co-selling
program ends, HP agrees to reimburse ClearCommerce up to [*] for such
sales support.
Notwithstanding the above, HP and ClearCommerce agree that upon execution
of the Amendment #2, any sales of the Programs to HP subsidiaries and
divisions shall be credited exclusively to HP, excluding any sales that
were in progress and generated exclusively by ClearCommerce prior to
execution of the Amendment #2.
During the Initial Term and any Renewal Term, HP agrees that CCC products
will be promoted actively internally as a solution for all HP internal e-
commerce initiatives as appropriate.
6. Subsection 4.2, Sales Training, is deleted and replaced with the following:
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ClearCommerce agrees to provide [*] and such additional sales training as is
mutually agreed upon by the parties, and marketing materials and Training
Materials. ClearCommerce grants HP the right to use the marketing materials in
accordance with subsection 3.3, License to [*] and to use the Training Materials
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in accordance with subsection 3.2, License to [*] under the license grant
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stated in subsection 3.2 for Sales Training and Technical training
as described in Exhibit D, subsection 4.
7. Section 4, SALES AND MARKETING, is amended by adding the following
subsections 4.3, Sales and Marketing Resources, 4.4, Branding, and 4.5,
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Press Release:
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4.3 Sales and Marketing Resources. HP agrees to designate a minimum of [*]
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or [*] within three months of execution of this Amendment #2 to license the
Programs to HP customers. CCC will designate a full-time Global account manager
and technical resource to HP to co-ordinate: training, marketing materials,
marketing support, technical support.
4.4 Branding. For ClearCommerce Program(s) used hereunder by Enterprise
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Commerce and CFTM programs and VeriFone, HP may brand the Programs as follows:
a) If an HP only product with no reference to any other 3/rd/ party component,
HP may include explicitly using the ClearCommerce brand and product names, using
the 'powered by' approach or private labeling the Programs, b) where HP
references any 3/rd/ party component (including VeriFone), HP will include
explicitly, using the ClearCommerce brand and product names or using the
'powered by' approach c) on Private labeled products where no HP brand
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(including VeriFone) exists, there is no requirement for a ClearCommerce brand.
ClearCommerce agrees to provide HP the necessary software code, Documentation
and support needed to change the install and boot screens to conform to HP's
branding strategy for the Programs. If source code is required to perform these
modifications CCC will do so under the terms of the Master Professional
Consulting Agreement.
The parties agrees this provision, (4.4 Branding), may be further amended as
required to comply with HP corporate-wide policies regarding HP product
branding.
[*] 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.
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As to any other HP program or use of ClearCommerce Program(s), the parties will
mutually agree how ClearCommerce Program(s) brand names will be included or not
in the HP product brand name on a program by program basis with due
consideration to the Program Roadmap.
ClearCommerce agrees that it will [*]. The parties recognize their intention
under this provision [*].
4.5 Press Release. Within two (2) weeks after execution of this Amendment #2,
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ClearCommerce may release a joint press release with which HP has approved. HP
will issue a press release in its normal course of business.
8. The first sentence of subsection 5.2, New HP Products, is deleted and
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replaced with the following: "The parties intend that during the Initial
Term and any Renewal Term of this Agreement, the Program(s) where
reasonably possible will be compatible and interoperable with future
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releases of the HP Products, provided that such new HP Products support the
Programs."
Subsection 5.2, New HP Products, is further amended by adding the
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following provision at the end of the subsection: "ClearCommerce intends to
maintain backward compatibility of its API's licensed to HP hereunder
during the Initial Term and any Renewal Term, where commercially reasonable
and as offered to other ClearCommerce customers."
9. The title to Section 5 is amended to read as follows: PROGRAM MAINTENANCE,
SUPPORT AND DEVELOPMENT ACTIVITIES, and the following is added as
subsection 5.5:
5.5 Development Activities.
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i. Development Activities. The parties will engage in joint development
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activity which may include worldwide bank and processor payment interfaces,
internet fraud protection ,internationalization, performance tuning, interfacing
into other HP products (open view, service guard), porting of HP's current world
wide bank and processor payment interfaces, and interfaces between HP's IPS and
future physical world products and upgradeability. They also intend to explore
the need to engage in other joint development opportunities after evaluating
their respective needs in relation to the Program(s), the market or customer
requirements and feasibility of any such development activity. The details for
all joint development projects will be specifically described in one or more
statements of work, which will be governed by this Agreement. Each statement of
work will: (i) be made in writing in the form attached as Exhibit G, (ii)
reference this Agreement, (iii) be numbered consecutively on a chronological
basis, and (iv) be executed by authorized representatives of ClearCommerce and
HP. Individual statements of work should address at least the following areas:
1. Project description including scope of project; 2. Price, payment and
delivery schedules; 3. Acceptance criteria; 4. Nature of deliverables; 5.
Project coordination and management; 6. Support plan and 7. Other governing
terms and conditions. HP may retain ClearCommerce to perform mutually agreeable
development activities which will be governed by the terms and conditions of the
Master Professional Consulting Agreement between the parties which is attached
hereto as Exhibit H.
ii. Program Roadmap and Meetings. The parties will jointly develop a mutually
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agreeable Program roadmap outline within 30 days from the Effective Date of this
Amendment #2. The parties agree the focus of joint development activities is on
developing products which meet the needs of the parties. The parties will
designate the appropriate business and technical
[*] 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.
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representatives to participate in regularly scheduled meetings (no less than
once per calendar quarter) to review the Program roadmap outline, all planned
and ongoing joint development activities, Program releases and any other issues
or matters relevant to the successful execution of this Agreement.
iii. Engineering Resources. Each party shall provide engineering resources on
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joint product development projects relating to ClearCommerce Merchant Engine and
ClearCommerce Hosting Engine or other mutually agreeable projects as the parties
deem appropriate.
iv. HP UX Servers. HP will provide HP UX Servers, with an HP list price of
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[*]. In consideration, ClearCommerce will rebate to HP [*] to process payment
transactions. An additional $2,000,000 of list price HP UX Servers, HP software
and where appropriate 3/rd/ party software (which HP elects to include based on
its royalty obligations and licensing terms with such third party licensors) for
which HP is a reseller will be supplied to ClearCommerce at [*] for use by
ClearCommerce for joint development activities, CCC service bureau and technical
support. ClearCommerce agrees to pay to HP for the cost of such hardware and
software on a net 45-day basis. ClearCommerce agrees to retain (and not to
transfer or assign) any HP UX Servers it acquires hereunder for no less than 2
years from the date of acquisition
10. Subsection 10.1, Term, is deleted and replaced with the following: "Unless
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otherwise terminated earlier under subsection 10.2, this Agreement
commenced on September 30, 1999, and continues thereafter for [*] ("Initial
Term"). Thereafter, the term of this Agreement automatically renews for
periods of [*] ("Renewal Term") unless either party elects not to renew
this Agreement and provides written notice of its election at least 90 days
before the end of the applicable Renewal Term."
11. Subsection 10.3, Effect of Termination, is amended by adding the following
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to the end of the provision: "Regardless of the reason for termination, HP
shall retain the right to use the Program(s) and the API's then licensed
for the sole purpose of fulfilling any contractual obligations for
maintenance and support services to its customers. Should termination
result from HP's uncured, material breach of the Agreement, HP may use the
Program(s) and API's then licensed for the sole purpose of fulfilling any
contractual obligations for maintenance and support services to its
existing customers that HP has paid to CCC the applicable support and
maintenance fees but only for a period not to exceed three (3) years from
the date of termination and not for the purposes of creating Extensions.
Such limited continued use is governed by this Agreement.
If this Agreement is terminated because of HP's uncured, material default,
the right to distribute the Program(s) already in HP's inventory or in
transit as of the effective date of termination, shall cease on the earlier
of: (i) 60 days after the effective date of termination or (ii)
distribution by HP of the last Program to a third party. All Program(s)
remaining in HP's inventory thereafter shall be destroyed.
In the event this Agreement is terminated because of ClearCommerce's
uncured, material breach, HP shall have the right and license to continue
to use and license the Program(s) and API's in accordance with this
Agreement including the right to develop Extension(s) so long as HP has
made and continues to make all payments to ClearCommerce hereunder.
Regardless of the reason for termination, Confidential Information will be
returned to the owner within 60 days of termination of this Agreement.
Notwithstanding, a party may retain the minimum number of copies of
Confidential Information reasonably necessary for maintenance and support
purposes and to exercise any rights or perform such obligations surviving
termination of this Agreement.
[*] 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.
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Nothing in this section 10.3 or in this Amendment #2 shall change, affect,
or in any way modify, amend, or alter the terms and conditions set forth in
sections 5.4, 11, 13.6 of Amendment #1 to this Agreement. In addition,
section 5.4 shall take precedence over this section 10.3.
12. Subsection 13.3, Equity Participation, is deleted.
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13. Subsection 13.13, [*], is amended by adding the following to the end:
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[*]
14. Section 13 is amended by adding the following as 13.17, Escalation
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Procedure:
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13.7 Escalation Procedure. The escalation procedure stated in section 5 of
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Exhibit D, Support and Maintenance, shall apply to resolve any problems or
disputes arising between the parties.
15. Exhibit A, LICENSED PROGRAM, is amended to add an introductory
statement: "The Programs listed in this Exhibit and licensed to HP by this
Agreement include all versions, beginning with 3.8.2 and later, on HP-UX,
Solaris and NT, as released during the Initial and Renewal Terms (and such
other platforms HP may request and to which the parties agree) plus
hosting services and, if and when available, fraud services and all other
software programs developed and made generally commercially available by
ClearCommerce during the Initial term and any Renewal Term of this
Agreement to its indirect channels of distribution. Notwithstanding, the
parties agree, during the Initial Term, ClearCommerce will negotiate with
HP, in good faith, to release such Program(s) as HP requests for use in
accordance with this Agreement."
16. Exhibit B, PROGRAM ENHANCEMENTS, section 2 is amended by adding API's
to the provision.
17. Exhibit C, PRICING, is deleted and replaced with the following:
All pricing discounts specified below shall apply for the Initial Term and any
Renewal Term of the Agreement unless otherwise agreed in writing by HP and
ClearCommerce.
1. Pricing for ClearCommerce Programs.
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(i) License Fee. HP agrees to pay ClearCommerce a license fee of [*] ("License
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Fee"). The License Fee payment obligation for the Initial Term is irrevocable.
HP paid ClearCommerce [*] of the License Fee for the first year of the Initial
Term upon execution of the Agreement. The remainder of the first year's License
Fee shall be paid as set forth in Sections 4 and 5 as set forth in Sections 4
and 5 below. The License Fees for the second, third and fourth year of the
Initial Term will be paid in 4 equal increments of [*] payable with the royalty
report submitted in accordance with subsection (iii) below.
(ii) Application of License Fee and Royalty Schedule. [.HP will receive credits
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for royalties, including credits for up to [*] per year for non-Program License
Fees, owed to ClearCommerce ("Credits") against the License Fee according to the
following discount schedule for all ClearCommerce Programs:
Product Royalty
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All Programs [*] of the net revenue derived from HP's license of the
Programs subject to the following minimum royalties:
For ClearCommerce Enterprise Merchant Engine and
ClearCommerce Merchant Engine: HP will pay to
[*] 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.
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ClearCommerce a minimum royalty* of [*] for production use
and a minimum royalty* of [*] for Program(s) licensed for
testing, evaluation, development and for each additional
Server
For ClearCommerce Hosting Engine: HP will pay to
ClearCommerce a minimum royalty* of [*] for production use
and a minimum royalty* of [*] for Program(s) licensed for
testing, evaluation, development and for each additional
Server
HP will endeavor to use its reasonable best efforts to
discount the Program(s) and hardware at rates no higher than
HP software products licensed and hardware sold as a part of
the total solution provided to the HP customer.
CFTM [*] of Average Selling Price of [*]
Hosting Engine License
[Subject to 2(iii) below]
Support [*] of ClearCommerce's List Price for Support
HP provides 1/st/& 2/nd/ level (includes Enhancements)
Support; installation and preinstallation.
ClearCommerce
Provides all other support if
ClearCommerce receives the appropriate support
fees.
[See, Exhibit D.]
*Minimum royalty may be adjusted upon mutual agreement based on market
conditions.
iii. CCC reserves the right to increase, decrease or change CCC's list price for
Programs, professional services, education and training, and support fees at
anytime during the Agreement with 90 day advance notice to HP. CCC reserves the
right to increase, decrease or change CCC's pricing model so long as the new
pricing model keeps HP at parity with other OEMs having a substantially similar
relationship with CCC.
Royalties for CFTM Hosting Engine Licenses will only accrue to HP as follows:
(1) for HP's CFTM customers who choose to use the Program to obtain any
functionality of the Program within the CFTM system, Program royalties will
accrue to HP upon shipment of the CFTM system to HP's CFTM customer; (2) for
HP's CFTM customers who choose to use software other than the Program inside the
CFTM system or any software outside of the CFTM system (such as through Card
Service International) to obtain the Program functionality, no Program royalties
(including those specified in Section 2 of this Exhibit C) will accrue to HP."
When the Credits exceed the License Fee then paid, any additional royalties paid
will reduce future License Fee payments beginning with the then next due payment
and ending with the last payment; after exhaustion of all License Fees paid
hereunder, HP will pay to ClearCommerce royalties in accordance with the
schedule set forth above with the royalty report described in subsection (iii)
below. No royalty will be due for any package item subsequently returned for a
refund or other similar adjustment consistent with HP's standard return
policies.
(iii) Royalty Payments and Royalty Reports. All accrued royalties (less any
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offset for Credits to the License Fees previously paid or due to ClearCommerce
by HP or for Programs returned or otherwise similarly adjusted by HP) will be
reported by HP to ClearCommerce within [*]
[*] 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.
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after the end of each HP fiscal quarter which ends on the last day of January,
April, July and October and will be paid within 45 days after receipt of the
appropriate invoice.
2. CFTM Pricing
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In addition to the License Fee and discount schedule specified in Section 1,
above, HP will continue to pay ClearCommerce the following CFTM fees only for
CFTM deals equaling [*] as set forth in subsection (iii) below:
(i) "Per Store-Month Fee" royalty in the amount of US [*] for each Store
License of the Program that HP uses internally or distributes for use in
conjunction with an 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 1,000
Store-Months for which HP will pay along with the royalty report.
(iii) Pricing for the next 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. Per Merchant Per Year Pricing for Hosting Engine*
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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 according to the following discount schedule:
Quantity Per Year Net Pre-Pay Amount OR Royalty on Per Year Fee
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0-500 $[*] $ [*]
501-1000 [*] [*] [*]
1001-5000 [*] [*] [*]
5001-10000 [*] [*] [*]
10001 + [*] [*] [*]
*Minimum royalty may be adjusted upon mutual agreement based on market
conditions.
See Exhibit J for ClearCommerce Merchant Per year Pricing Policy
4. Fees to migrate from Hosting and Merchant Engine Version 3.7
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For the [*] of the License Fee to be paid by HP to ClearCommerce under this
Section, HP shall make 5 monthly payments of [*] each. The first payment shall
be due by January 15, 2000. The remaining 4 payments shall be due in accordance
with the following schedule:
Payment Due Date
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[*] [*]
[*] [*]
[*] [*]
[*] [*]
5. Fees for Enhancements
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If prior to January 31, 2000, ClearCommerce completes the Enhancements set forth
on Exhibit B, HP shall pay ClearCommerce [*] of the License Fee according to the
following schedule:
[*] 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.
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Payment Due Date
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[*] January 31, 2000
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 [*].
Professional Services Rates. [*] per hour plus T& L
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Special Pricing For PayWorks Migration. ClearCommerce agrees to work with HP
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to migrate PayWorks customers to ClearCommerce Program(s).
6. "Quick Start" Hosted Service. ClearCommerce will pay HP [*] HP customers
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signed up by HP or its resellers for the service which amount will be paid
within 30 days from the last day of each calendar quarter.
18. Subsection 2(a) of Exhibit D, In General, is amended by adding the following
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sentence to the provision: "To ensure HP assumes its responsibility for
providing 1/st/ and 2/nd/ level support, ClearCommerce agrees to change all
install xxxxxxx, readme files and all other references in the core code to
clearly provide the appropriate HP contact information for such support."
19. 4(a) of Exhibit D, ClearCommerce Training, is amended by deleting the first
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sentence and replacing it with the following: "Upon the Effective Date of this
Amendment #2 and for the Initial Term and any Renewal Term, ClearCommerce will
provide, at no charge, to the HP response center engineers identified by HP, 15
days worth of initial training (minimum 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), at CCC's Austin facility."
20. Subsection 4(b), Right to Copy Education Materials, is deleted.
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21. All other terms and conditions of the Agreement (as amended) remain in full
force and effect except as modified by this Amendment #2. The parties agree that
this Amendment #2 shall take effect upon the date of the execution by HP's duly
authorized representative below.
Agreed:
HEWLETT-PACKARD COMPANY CLEARCOMMERCE CORPORATION
By: _____________________________ By: _____________________________
Print Name: _______________________ Print Name: ______________________
Title: _____________________________ Title: ___________________________
Date: _____________________________ Date: ___________________________
[*] 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.
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