Exhibit 10.15
27.07.2000
HighTech International Services GmbH
Theodor-Althoff-Str.1, 45133 Essen, Germany ("HiServ")
&
Internet Commerce Corporation
805 Third Avenue, New York, New York, USA ("ICC")
Joint Services Agreement
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1. ICC offers an electronic data interchange (EDI) system which provides for
direct electronic interchange via the Internet (as described in the
"Service Overview" [attachment 1]) and comprising software, technical
support, training and updating of the software, all as further developed
from time to time (the "ICC EDI Service Offerings").
HiServ is a company providing data center and related services, and is a
wholly-owned subsidiary of ThyssenKrupp Services GmbH.
2. Pursuant to the terms and conditions of this Agreement, ICC shall provide
the services forming part of the ICC EDI Service Offerings to enable
HiServ to provide the same ICC EDI Service Offerings to its customers. As
the technical basis, HiServ shall make available in Europe the server
capacities necessary as hosting facilities for HiServ customers for ICC
EDI Service Offerings.
HiServ shall not act as agent for ICC. Thus, vis-a-vis its customers
HiServ shall act in its own name, not in the name of ICC.
3. Intellectual property / Confidentiality/Security
3.1 HiServ acknowledges and agrees that the ICC EDI Service Offerings
(including improvements, modifications and changes thereto), constitute
valuable trade secrets of ICC and/or proprietary and confidential
information of ICC and title thereto remains solely in ICC to the extent
not provided otherwise in this Agreement. HiServ shall not transfer,
adapt, modify, otherwise copy, reverse compile or otherwise translate or
distribute any proprietary software used in connection with the ICC EDI
Service Offerings (the "Software") or distribute the Software or rent,
lease, assign or attempt to license it except in connection with the
provision of the ICC EDI Service Offerings pursuant to this Agreement.
Ownership of all applicable copyrights, trademarks and service marks,
trade secrets, patents and other intellectual property rights in the ICC
EDI Service Offerings are and shall remain vested solely in ICC to the
extent not provided otherwise in this Agreement. All other aspects of the
ICC EDI Service Offerings, including without limitation, programs
(including changes, additions and enhancements in the form of new or
partial programs or documentation), methods of processing, design and
structure of individual programs and their interaction and programming
techniques employed therein shall remain the property of ICC to the extent
not provided otherwise in this Agreement and shall not be sold, revealed,
disclosed or otherwise communicated, directly or indirectly, by HiServ to
any person or entity whatsoever other than in connection with the
provision of the ICC EDI Service Offerings pursuant to this Agreement. The
copyright, trademark and service mark notices and restricted rights
legends contained in the ICC EDI Service Offerings shall appear on all
media distributed by HiServ. HiServ agrees not to take a position
inconsistent with the foregoing, and will provide all data and information
it has to enable ICC to defend ICC's right, title and interest in and to
all of the property described in this section; provided that HiServ shall
indemnify ICC for any damages suffered as a result of any delay of HiServ
to act promptly when providing the data and information.
3.2 ICC represents, warrants and covenants that, to the best of its knowledge,
the ICC EDI Service Offerings does not contain, or, to the extent the
contrary is the case, the use thereof do not violate, any Third Party
Software, trade secrets, proprietary or confidential information,
copyrights, trademarks or service marks, trade secrets, patents and other
intellectual rights (the "Third Party Rights") which ICC does not have the
right to use and the right to use of which could not be transferred to
HiServ pursuant to this Agreement. Third Party Rights means any rights or
title which is not held or license or sub-licensed by ICC.
3.3.1 Prior to August 31, 2000, the parties will enter into a source code escrow
agreement (which shall, in essence, have the content set forth herein)
with Fort Knox Escrow Services, Ltd., 47 Bastwick Street, London EC1V3PR,
United Kingdom, (the "Escrow Agent"). Concurrently with the execution of
the source code escrow agreement, ICC will deposit with the Escrow Agent
and maintain during the term of this Agreement the version then of the
Software then in use by HiServ and all related documentation, including
updates as set forth in item (a), (jointly the "Escrow Materials"). HiServ
shall pay one hundred percent (100%) of the cost associated with the
enforcement of the escrow agreement, including the release of the Escrow
Materials and their use by HiServ under the terms of this Agreement, shall
be borne by ICC.
(a) Update of Source Code. ICC shall deliver bi-annually to the
Escrow Agent (or upon the reasonable written request of HiServ after a
material change or update of the Software) such material as is necessary
to ensure that the material so delivered together with the Escrow
Materials delivered to the Escrow Agent pursuant to this section
constitutes all source codes and related documentation associated with the
ICC EDI Service Offerings (including such necessary modifications,
upgrades or new releases and related documentation).
(b) Title to Intellectual Property. ICC HiServacknowledges that
HiServ has acquired full right, title and interest to use the Escrow
Materials in the event of the occurrence of a Release Condition with the
proviso, however, that HiServ shall be entitled to use the Escrow
Materials only as provided in this Agreement or any of the Schedules
hereto.
(c) Verification. HiServ, and at HiServ's request the Escrow Agent,
shall be entitled to examine and to test the Escrow Materials bi-annualy
to ensure that it corresponds to the latest to the latest version of the
program's object code. HiServ shall bear the cost of such verification.
(d) Release Condition. The Escrow Agent will release the Escrow
Materials to Licensee upon the delivery by HiServ of notice to the Escrow
Agent of the occurrence of any of the following events (the "Release
Conditions"): (i) ICC becomes insolvent or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, or
(ii) ICC becomes the subject of a voluntary petition in bankruptcy or any
voluntary proceeding relating to insolvency, receivership, liquidation or
composition for the benefit of creditors, if such petition or proceeding
is not dismissed within sixty (60) days of filing, or (iii) ICC fails to
pay any amount due to HiServ under item 12.4.1 within 20 (twenty) days
after HiServ gives ICC written notice of such non-payment.
(e) Upon the Release Conditions HiServ shall be free to make use of
the Escrow Materials in accordance with the terms of this Agreement,
provided, however, that in the event of a Release Condition within the
meaning of item (d) (iii) it shall be free to make use as it sees fit to
achieve the Security Purpose, including transfer, adaption, modification,
otherwise copying, reverse compiling or otherwise translating or
distributing any Software, or distribution or rent, lease, assignment or
attempt to license it, changes, additions and enhancements in the form of
new or partial programs or documentation, processing, as well as changes
to design and structure of individual programs and their interaction and
programming techniques employed therein, sale, revelation, disclosure or
otherwise communication. The Security Purpose shall be to ascertain
HiServ's claims hereunder and to place HiServ in a position, both
financially and factually, as if ICC had fully performed its obligations
hereunder. HiServ shall forward/transfer any proceeds or rights HiServ
gains or holds after having achieved the Security Purpose, to ICC.
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3.3.2 Title to Other Intellectual Property. ICC acknowledges that HiServ has
acquired full right, title and interest to use the Other IP (as defined
below) in the event of the occurrence of a Release Condition; Other IP
shall mean other Intellectual Property forming part of the ICC EDI Service
Offerings, including any know-howinsofar as such right, title and interest
extends to the use of the Other IP as provided in this Agreement or any of
the Schedules hereto.
Upon the Release Conditions HiServ shall be free to make use of the Other
IP in accordance with the term of this Agreement, provided, however, that
in the event of a Release Condition within the meaning of item 3.3.1 (d)
(iii) it shall be free to make use of the Other IP as it sees fit to
achieve the Security Purpose, including transfer, adaption, modification,
otherwise copying, reversing compiling or otherwise translating or
distributing any Other IP, or distribution or rent, lease, assignment or
attempt to license it, changes additions and enhancements in the form of
new or partial programs or documentation, processing, as well as changes
to design and structure of individual programs and their interaction and
programming techniques employed therein, sale, revelation, disclosure or
otherwise communication. The Security Purpose shall be to ascertain HiServ
claims hereunder and to place HiServ in a position, both financially and
factually, as if ICC had fully performed its obligations hereunder. HiServ
shall forward/transfer any proceeds or rights HiServ gains or holds after
having achieved the Security Purpose, to ICC.
3.4.1 Each party shall keep confidential any information that such party (or any
of its affiliated companies) receives, or gains access to, from the other
party (or any of such party's affiliated companies) in the course of, or
in connection with, the implementation of this agreement, whether
furnished orally or in writing or gathered by inspection or access to data
and regardless of whether specifically identified as "confidential" (all
such information individually and collectively referred to hereinafter as
the "Confidential Material"). The term "party" in this agreement shall
comprise such party's directors, employees, representatives, consultants
and agents.
Each party shall direct and commit each person to whom it discloses
Confidential Material to the confidentiality obligations contained herein.
3.4.2 The parties agree not to use any of the Confidential Material for any
purpose other than the implementation of this Agreement.
3.4.3.The term "Confidential Material" does not include information which (i)
becomes generally available to the public other than as a result of a
breach of a confidentiality obligation under this Agreement or (ii) was or
becomes available to the other party on a non-confidential basis without
violating the terms of this Agreement or (iii) is required by law to be
disclosed.
4. Cooperation
4.1 With the exception of Cable & Wireless plc, HiServ shall be the only
"principal partner" of ICC located, and/or making sales to customers, in
Europe. ICC will be able to signup European trading partners of its
non-European based customers if they originally come from non-European
based ICC customers. "Principal partner" means that only HiServ and Cable
& Wireless will be able to provide hosting facilities in Europe.
Additionally ICC agrees for the duration of this contract not to have
direct sales personnel in Europe.
4.2 After Q8(see item 8.4), item 4.1 shall cease to apply if in any two
consecutive quarters the Actual Quarter Amount (see item 8.4) is less than
the following minimum amounts:
Q9 through Q12: (US) $ 2,250,000.00
Q13 through Q16: (US) $ 3,000,000.00
Q17 through Q20: (US) $ 5,000,000.00
Provided that, HiServ shall have the option to pay the difference between
the Actual Quarter Amount and the applicable minimum amount for the
quarter in question, which payment must be received by ICC within 30 days
of the relevant quarter's end. In the event that HiServ exercises
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this option and pays this amount, the Actual Quarter Amount in question
shall be deemed not to be less than the relevant minimum amount, and the
provisions of Item 4.1 shall remain in effect.
4.3 ICC grants HiServ worldwide exclusivity to the Thyssen Krupp Group and the
Aventis Group for ICC EDI Service Offerings. Consequently, during the
duration of this Agreement, ICC shall not, directly or indirectly, provide
any ICC EDI Service Offerings to companies within the Thyssen Krupp Group
and/or the Aventis Group (The term group shall comprise all affiliated
companies within the meaning of the German Stock Corporation Act).
5. It is agreed that HiServ will first focus its marketing efforts in the
major continental Europe markets. However, HiServ is entitled to market
and provide the ICC EDI Service Offerings worldwide on a non-exclusive
basis.
6. ICC shall indemnify HiServ, to the extent HiServ is liable under
applicable statutory law or its warranties, against all liability and
third party claims resulting from a malfunction of the ICC EDI Service
Offerings or from a violation of this Agreement provided that - with
the exception of claims resulting from the intent or gross negligence
on the part of ICC - in no event shall any damages which may be
assessed against ICC for any reason exceed (US) 500,000.00 in the
individual case and (US) $1 million in a contract year. This provision
shall not apply if the malfunction falls within HiServ's sphere of
responsibility. For this the burden of proof is with ICC. ICC shall
also not be held responsible if the third party claim is a result of an
express warranty that HiServ grants its customers, provided that this
warranty exceeds any warranty granted by ICC to HiServ as well as
HiServ statutory obligations. ICC also agrees to examine certain
customer situations on a case-by-case basis if reasonably requested by
HiServ.
7. HiServ shall be free in its marketing strategies and policies, including,
but not limited to, the selection of its customers, its retail pricing for
its customers, in the presentation of the ICC EDI Service Offerings, and
the use of the name and brand of ICC. ICC agrees to work closely with
HiServ to redefine and position the ICC Service Offerings for the European
marketplace.
8. Prices/Invoicing
8.1 Subject to the commitment outlined below in item 8.3, HiServ agrees to pay
for the ICC EDI Service Offerings according to the prices set out in the
schedule in the Addendum to this agreement [attachment 2].
8.2 ICC will provide HiServ with a monthly invoice setting out the total fees
owed by HiServ to ICC for the previous 30 day period. HiServ shall pay the
monthly invoice within 30 days of receipt of the invoice.
8.3 At the end of each quarter ICC will calculate the total amount of the
monthly invoices delivered to HiServ (the "Actual Quarter Amount") and
determine if the Actual Quarter Amount is less than the amount for the
corresponding quarter as set out in the table below (such amounts, the
"Floor Quarter Amount"). With the exception of the first quarter, in the
event that the Actual Quarter Amount is less than the Floor Quarter
Amount, HiServ will pay to ICC, within 30 days of the relevant quarter's
end, the difference between the Floor Quarter Amount and the Actual
Quarter Amount. The Floor Quarter Amount for Q1 will be paid to ICC
immediately upon signing this Agreement. The Floor Quarter Amount for Q2
and the following Quarters ("Qs") will not be payable until (i) the escrow
agreement referred to in item 3.3 shall have been entered into (provided
that the absence of entering into the escrow agreement shall not be due to
unreasonable requests of HiServ with respect to the escrow agreement, and
(ii) ICC will have deposited the Escrow Materials, as to be deposited
under item 3.3 upon signing, with the Escrow Agent. It is understood that
only in the first quarter is the Floor Quarter Amount paid in advance and
that subsequent quarters the amount due will be paid within 30 days of the
relevant quarter's end. Other than the option set out in item 4.2, no
Floor Quarter Amount shall exist after Q8.
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Year 1 Q1 Q2 Q3 Q4
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(US) $250,000 (US) $250,000 (US) $500,000 (US) $1,000,000
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Year 2 Q5 Q6 Q7 Q8
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(US) $1,500,000 (US) $1,500,000 (US) $1,500,000 (US) $1,500,000
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9. Technical cooperation
9.1 HiServ will perform Level 1 and Level 2 technical support to its
customers. Level 3 technical support will be provided by ICC to HiServ and
HiServ's customers. HiServ will use a trouble ticket system-Action Request
(ARS Remedy). ICC uses Sales and Support Logix. ICC and HiServ will
develop a solution to exchange information between the systems, or ICC
will use the HiServ ARS system. ICC will provide to HiServ and its
customers the same 24x7 (24 hours, seven days a week) Level 3 support that
it provides its own customers; no extra-fees shall be payable for such
support. If it is necessary, and as the parties start to develop the
relationship, ICC is prepared to further explain the dynamics of the
support for the HiServ customer base. HiServ shall not be liable for any
damages suffered by ICC or customers which are caused by the use of the
HiServ ARS system.
9.2 ICC will provide immediate access to the ICC system so that HiServ
technical personnel can begin product testing on a reasonable basis.
9.3 ICC will provide mapping support, at ICC's cost, as needed.
9.4 The HiServ-ICC system will have the same software level as the ICC system
(peer hosting). Thus, ICC shall provide HiServ with new software versions
or updates which are used for the ICC EDI Service Offerings as soon as
possible after ICC first made use of the new software, but in any event,
no later than one month after ICC first made use of the new software.
9.5 ICC will provide demo software and also provide remote demo capabilities.
As with other resellers, ICC will provide these capabilities at ICC's
cost.
9.6 ICC will provide training on a reasonable basis to HiServ technical
personnel at HiServ locations. The exact levels of training will be
mutually agreed by the parties, as the parties start to roll out the
service for the HiServ organization in Europe. Training shall be provided
at ICC's cost.
9.7 Wherever this Agreement makes reference to ICC' s cost, only direct cost,
including out-of-pocket expenses, shall be meant.
10. Marketing
10.1 Where appropriate and as mutually agreed upon by the parties, HiServ and
ICC will collaborate their sales activities. To start these activities,
ICC technical sales personnel will train HiServ product sales personnel,
at ICC's cost. HiServ product sales personnel will then train HiServ sales
personnel.
10.2 HiServ and ICC will provide collaborative marketing activities:
1. Joint press release (the content of which shall be mutually approved
by the parties) and announcement of the agreement.
2. Install links to the web sites of both companies.
3. Participate in exhibition like CEBIT.
4. Advertising and mailing actions.
5. Supporting product information.
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In this connection the parties shall cooperate closely to provide a basis for a
coordination of the sales efforts and the sales organizations of both parties.
10.3 The product needs international language support. Since ICC has limited
translation abilities for the product, HiServ will first provide
capability in German. Capability for French and other primary European
languages will follow.
11. Both parties agree to identify and allocate responsibility to, within each
of their respective organizations, an account manager who will act as a
single point of contact for this effort. Initially, issues arising out of
this agreement will be coordinated by a dedicated account manager from
each Organization.
12. Term
12.1.1 Subject to item 12.1.2, this agreement shall have a five year term
starting from the date the agreement is signed by both parties. It shall
come to an automatic end at that point in time unless extended by express
written mutual consent of the parties pursuant to item 12.2.
12.1.2 ICC may, by written notice to HiServ, terminate this Agreement if (i)
HiServ fails to pay any amount due to ICC under this Agreement within
twenty (20) days after ICC gives HiServ written notice of such
non-payment, (ii) HiServ is in material breach of any non-monetary term,
condition or provision of this Agreement, which breach, if capable of
being cured, is not cured within thirty (30) days after ICC gives HiServ
written notice of such breach, or (iii) HiServ (A) terminates or suspends
its business activities, (B) becomes insolvent, admits in writing its
inability to pay its debts as they mature, makes an assignment for the
benefit of creditors, or becomes subject to direct control of a trustee,
receiver or similar authority, or (C) becomes subject to any bankruptcy
or insolvency proceeding under federal or state statutes.
HiServ may, by written notice to ICC, terminate this Agreement if (i) ICC
fails to pay any amount due to HiServ under this Agreement within twenty
(20) days after HiServ gives ICC written notice of such non-payment, (ii)
ICC is in material breach of any non-monetary term, condition or
provision of this Agreement, which breach, if capable of being cured, is
not cured within thirty (30) days after ICC gives ICC written notice of
such breach or (ii) ICC (A) terminates or suspends its business
activities, (B) becomes insolvent, admits in writing its inability to pay
its debts as they mature, makes an assignment for the benefit of
creditors, or becomes subject to direct control of a trustee, receiver or
similar authority, or (C) becomes subject to any bankruptcy or insolvency
proceeding under federal or state statutes.
Termination will become effective immediately or on the date set forth in
the written notice of termination and will not require ICC to make any
payment pursuant to item 12.4.
12.2 3 months prior to the termination of this Agreement in accordance with
item 12.1.1 the parties shall negotiate in good faith in an attempt to
extend the terms of this Agreement.
12.3 During the first two years of this Agreement, in the event a potential
acquiror, or any affiliafted company of a potential acquiror (the
"Potential Acquiror"), obtains 50% or more of the outstanding capital
stock of ICC, ICC (or any successor entity) or the Potential Acquiror
shall have the right but not the obligation, exercisable in its sole and
absolute discretion, which right must be exercised within eight (8) weeks
of the Potential Acquiror successfully obtaining 50% or more of the
outstanding capital stock of ICC, to become a Principal Partner under
item 4.1 and the prohibitions on ICC contained in item 4.1 shall not
apply to the Potential Acquiror (or any sucessor of ICC), provided that
HiServ shall at all times continue to be treated as a Principal Partner
under item 4.1 (in each case, and "Principal Partner Addition"). In the
event the Potential Acquiror, ICC, or any successor entity, exercises the
Principal Partner Addition right, they shall provide 90 days written
notice to HiServ (the "Notice") and the ensure timely payment of the
Principal Partner Addition Amount. The Principal Partner Addition Amount
shall mean payment by ICC to HiServ of an amount equal to, (i) if the
Principal Partner Addition occurs during the first 12 months of the term
of this Agreement, (US) $10 million, (ii) if the Principal Partner
Addition occurs after the expiration of the
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first 12 months but before the 24th month of the term of this Agreement,
(US) $20 million and (iii) if the Principal Partner Addition occurs
thereafter but before the end of the Agreement, an amount to be agreed
upon by the parties within 60 days following the Notice; if no such
agreement is reached by the parties within the said time period, the
Principal Partner Addition right terminates.
Any payment to be made pursuant to this section shall be made not more
than 90 days following the Notice and the Principal Partner Addition
shall be effective only upon receipt of the Principal Partner Addition
Amount by HiServ and the expiry of the 90 day notice period. If HiServ
does not receive payment in time, the Principal Partner Addition right
terminates. HiServ shall accept the Principal Partner Addition Amount
paid under this item as full and final settlement and satisfaction of all
claims of every nature and kind whatsoever arising from the Principal
Partner Addition.
ICC or any Potential Acquiror shall provide written notice to HiServ 30
days after successfully obtaining 50% or more of the outstanding capital
stock of ICC.
12.4.1 Upon the termination of this Agreement
(i) at the end of the original term set forth in item 12.1 and in the
event there is, at such point in time, no agreement signed on the terms
of the extension (irrespective of good or bad faith negotiation) pursuant
to item 12.2 or
(ii) caused by an early termination by HiServ for cause pursuant to item
12.1.2 provided that the reason for the termination is a violation of
ICC's obligations under item 4.1 or 4.3
and on the condition precedent that HiServ is not in default with any of
its obligations hereunder, ICC shall pay HiServ severance compensation in
an amount equal to the product of (A) 80% of the total HiServ fees
(exclusive VAT) for ICC EDI Service Offerings invoiced to HiServ's
customers in the 12 calendar months immediately prior to termination
multiplied by (B) five (5).
12.4.2 ICC shall be entitled to request the extension of the terms and
conditions of this of this Agreement (provided that the minimum amount of
Q20) by periods of 1 up to 5 (entire) years. ICC must, however, exercise
this right by formal written offer to HiServ within the first sixty days
of the three month period referred to in item 12.2. For each year of the
extension, (B) above shall be reduced by 1, provided that (B) above may
not be negative or zero (examples: if ICC requests an extension of 3
years, (B) above shall be 2; if ICC requests an extension of 5 years, (B)
above shall be 1).
12.4.3 Concurrently with ICC's payment, HiServ shall transfer to ICC all data
and information regarding its ICC EDI Service Offerings customers,
including, but not limited to, the customer list. Furthermore, HiServ
shall, to a reasonable extent, support ICC in an effort to continue the
customer relationship with HiServ customers on ICC' s behalf.
12.5 If HiServ signs with a customer a contract longer than the term of this
agreement (an "Over Extended Contract"), TKIS shall be entitled to
perform such Over Extended Contract and ICC agrees to support HiServ (but
only with respect to the Over Extended Contract) and his customer, for
the duration of the Over Extended Contract.
12.6 Termination shall not affect the provisions pertaining to confidentiality
contained in this Agreement.
13. If any provision in this Agreement should, in whole or in part, be or
become invalid, the validity of the remaining provisions or part of
provisions hereof shall not be affected. The invalid provision shall be
substituted by a provision corresponding with the economic purpose of the
invalid provision to the largest extent legally possible.
14. This Agreement shall be subject to Swiss law. The law in connection with
the UN convention on the sale of goods shall be excluded.
15. This Agreement may be assigned by ICC or HiServ provided that the
assignment is to an affiliated entity of ICC or HiServ, as applicable,
and that the assignee agrees in writing with ICC or HiServ, as the case
may be, that it is bound by the obligations of ICC or HiServ, as the case
may be, contained in this Agreement and furthermore provided that such
assignee is capable of performing the assignor's obligations contained in
this Agreement. This Agreement shall inure to the benefit of and be
binding upon the respective successors and permitted assigns of the
parties hereto.
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16. All disputes arising out of or in connection with this Agreement shall be
exclusively and finally settled by arbitration according to the rules of
the International Chamber of Commerce, with Zurich as venue, three
arbitrators and English as language.
July 28, 2000 July 28, 2000
Internet Commerce Corporation ThyssenKrupp Information Systems GmbH
by: /s/ Geoffrey S. Carroll by: /s/ Werner Schulte
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Dr. Geoffrey S. Carroll Werner Schulte
President & Chief Executive Officer Member of the Board