Exhibit 10.7
LICENSED CHECK PRODUCTS RESELLER 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.
This Licensed Check Products Reseller Agreement ("Agreement") is made
and entered into effective as of this 1st day of September, 2003, by and among
ImageSoft Technologies, Inc., a Florida corporation ("ImageSoft"), and Xxxxxx
Software, Inc., an Ohio corporation ("Hyland").
RECITALS:
A. ImageSoft and Hyland are parties to a Loan and License Agreement, dated
May 9, 1997, as amended (the "Check License Agreement"), that among other things
provides for the licensing by Hyland to "the Fiserv Companies" (as defined in
the Check License Agreement), including ImageSoft, of the "Licensed Check
Products" (as defined in the Check License Agreement).
B. In 2001, ImageSoft and Hyland agreed upon terms upon which Hyland
could resell the Licensed Check Products in the United States and certain other
regions through its authorized OEMs, Wausau Financial Services, Inc. and Sparak
Financial Systems, Inc.; and ImageSoft and Hyland now desire to supersede that
earlier agreement and enter into a revised reseller relationship whereby such
relationship will be governed by the terms of this Agreement and any
non-conflicting provisions of the Marketing Agreement, dated January 18, 1994,
as amended (the "Marketing Agreement"), between the Fiserv Companies and Hyland.
NOW, THEREFORE, the parties agree as follows:
1. DEFINED TERMS
Capitalized terms used in this Agreement and not otherwise defined in
this Agreement are used herein with the same meanings as such terms have under
the Check License Agreement and/or the Marketing Agreement.
2. AMENDMENT TO CHECK LICENSE AGREEMENT - LICENSE TO MARKET AND SUB-LICENSE THE
LICENSED CHECK PRODUCTS IN THE UNITED STATES
2.1 Grant of License. Subject to the limitations and restrictions of
Section 2.2, ImageSoft hereby grants to Hyland, as a master reseller, the right
to relicense to Wausau Financial Services, Inc. and to Sparak Financial Systems,
Inc., and their respective successors (the "Authorized OEMs"), the right to
market and relicense the Licensed Check Products to "qualified financial
institutions" located in the United States. For all purposes of this Agreement,
"qualified financial institutions" means (a) banks, bank holding companies,
savings banks, savings and loans and credit unions with assets of less than $10
Billion according to the most current XxXxxxxx Financial Directory, and (b)
service bureaus or similar outsourcing partners processing checks or images for
any financial institutions described in clause (a). Except as modified by the
provisions below, the terms and conditions of this reseller relationship shall
be substantially the same as the terms and conditions of the Marketing
Agreement, with the parties substituted appropriately, and such unmodified terms
and conditions of the Marketing Agreement, with the parties substituted
appropriately, and such unmodified terms and conditions are hereby incorporated
into this Agreement by this reference for these limited purposes.
(a) ImageSoft makes no warranties to Hyland with respect to the Licensed
Check Products.
(b) Hyland shall provide any and all pre-sale, technical and on-going
support related to the Licensed Check products that the Authorized OEMs may
require in connection with their business operations related to the Licensed
Check Products.
(c) Hyland or the Authorized OEMs shall directly provide maintenance
and support for any customers that license the Licensed Check Products from such
Authorized OEMs and ImageSoft shall not have any obligation to provide any
maintenance and support services to any of such customers.
(d) Hyland shall have the right to further relicense the Authorized OEMs
to relicense to such customers any and all upgrades and enhancements of the
Licensed Check Products developed during the term of this reseller relationship.
Xxxxxx Software, Inc. (Confidential)
October 2003
1
Confidential Treatment Requested
(e) Hyland shall be entitled to a discount of **** off of ImageSoft's
list prices for the Licensed Check Products, as published by ImageSoft to Hyland
and applicable to customers of ImageSoft generally, for all copies of the
Licensed Check Products relicensed by Hyland hereunder. Hyland acknowledges and
agrees that ImageSoft's list pricing for the Licensed Check Products currently
includes a pricing concept that provides for a periodic audit of the asset size
to the customer and statement volumes-based pricing; and commencing with respect
to any customer that an Authorized OEM licenses the Licensed Check Products to
on or after February 1, 2004, periodically, but not less than annually, Hyland
will charge and collect from the Authorized OEMs any additional license fees
owed under such pricing concept. ImageSoft shall have the right to change its
list prices for the Licensed Check Products from time to time upon at least
ninety (90) days advance written notice to such effect to Hyland.
(f) Hyland shall pay an additional fee to ImageSoft with respect to each
customer that has licensed the Licensed Check Products through either of the
Authorized OEMs for maintenance and technical support from Hyland or an
Authorized OEM with respect to the Licensed Check Product; provided that Hyland
shall not be obligated to remit any such payment that accrues with respect to
the initial three-year period if the customer defaults in its obligation to make
the payment for such services that such customer is required to make to Hyland
or an Authorized OEM; and provided, further, that Hyland shall not be obligated
to remit any such payment with respect to any renewal period for such customer
if Hyland or an Authorized OEM does not receive any payment for such services
for such renewal period from the customer for any reason, including non-renewal.
Commencing with respect to any customer to which an Authorized OEM licenses the
Licensed Check Products on or after February 1, 2004, regardless of the term of
any maintenance and support agreement in effect between Hyland or an Authorized
OEM and such customer with respect to the Licensed Check Products, this
additional fee shall accrue for an initial period of three years and thereafter
shall automatically renew on the anniversary date of the completion of the
Warranty period for additional one year periods, provided that such customer
remains under maintenance and technical support from Hyland or an Authorized OEM
with respect to the Licensed Check Products. The amount of the additional fee
shall be a per annum amount equal to **** of ImageSoft's list prices for license
fees for the Licensed Check Products in effect at the time the Licensed Check
Products are initially licensed to such customer. Hyland shall pay this
additional fee to ImageSoft following the Warranty period on a per annum basis
during the initial and each ensuing accrual term.
2.2 Limitations and Restrictions. Hyland acknowledges and agrees that
the license granted to Hyland under Section 2.1 is further limited and
restricted as follows:
(a) The Licensed Check Products do not include the Titan Middleware
product of ImageSoft, and Hyland shall have not right to authorize the
Authorized OEMs to market or relicense the Titan Middleware. The respective
rights of ImageSoft and Hyland with respect to the Titan Middleware product
shall continue to be governed by the letter agreements between ImageSoft and
Hyland dated November 15, 1999 and January 7, 2000, and such letter agreements
are unaffected by this Agreement.
(b) Hyland is prohibited from granting any right to the Authorized OEMs
to market or relicense the Licensed Check Products in the United States to any
Core Application Customers (as hereinafter defined) of ImageSoft, Information
Technology, Inc. ("ITI") or of any other Fiserv Companies, except for the
following:
(1) Current customers of the Authorized OEMs that are using
their Image POD, conventional POD or Remittance applications; AND
(2) that are not also Core Application Customers of ITI, CBS or
ImageSoft.
For purposes of this Agreement, a "Core Application Customer" is a customer who
licenses from the applicable Fiserv Companies either banking or credit union
core application software.
2.3 Monthly Reports and Payments. Not later than the fifteenth (15th)
day of each month, Hyland shall provide to ImageSoft a report for the preceding
month, identifying each new customer for which Hyland received from the
Authorized OEMs an order for the relicensing of a Licensed Check Product, and
identifying each customer with respect to which the Authorized OEMs make a
maintenance payment to Hyland. For each new customer, Hyland shall pay the
applicable list price of the Licensed Check Products relicensed to such
customer, less the discount specified in Section 2.1
Xxxxxx Software, Inc. (Confidential)
October 2003
2
Confidential Treatment Requested
above. The monthly report shall set forth the calculation of the payment
required to be made to ImageSoft for the preceding month and shall be
accompanied by Xxxxxx'x remittance of the payments then due.
3. MISCELLANEOUS
3.1 Entire Agreement. The Check License Agreement, the Marketing
Agreement and this Agreement constitute the entire contract and understanding of
the parties with respect to the subject matter thereof and hereof and supersede
all prior and contemporaneous agreements, understandings, negotiations and
proposals between the parties, oral or written. Section and paragraph headings
are provided for convenience purposes only and do not provide any modifications
or substantive meaning to the terms and conditions of this Agreement. This
Agreement may be amended or modified only by a subsequent agreement in writing
signed by each of the parties and may not be modified by course of conduct.
IN WITNESS WHEREOF, the parties have executed this Addendum by their
duly authorized representatives as of the day and year first above written.
IMAGESOFT TECHNOLOGIES, INC. XXXXXX SOFTWARE, INC.
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXXX XXXXXX
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Name: XXXXXX X. XXXXXXXX Name: XXXXX XXXXXX
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Title: President Title: EVP
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Date: 3/15/04 Date: 3/17/04
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XXXXXX
SOFTWARE
DTP 3/17/04
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Initial Date
LEGAL
Xxxxxx Software, Inc. (Confidential)
October 2003
3
