EXHIBIT 10.7.4
ATTACHMENT A
VALUE-ADDED RESELLER LICENSE AGREEMENT
THIS AUTHORIZED VALUE-ADDED RESELLER LICENSE AGREEMENT ("Agreement") is
entered into as of the date set forth above the signature block to this
Agreement ("Effective Date") between CLEARCOMMERCE CORPORATION, a Delaware
corporation ("CCC"), and the value-added reseller indicated in the signature
block to this Agreement ("VAR").
WHEREAS, CCC has developed and owns the intellectual property rights,
subject to the provisions of Section 16 of the License and Service Agreement,
in and to certain computer software described in Schedule A to this Agreement
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("CCC Software"): and
WHEREAS, VAR desires to sell, market, distribute, install and support
computer software programs comprising the CCC Software (the "Software Product")
in accordance with the terms of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
Definitions
The following terms when used in this Agreement shall have the meanings
indicated below:
"Distributor" means a third party to which VAR grants the right to market,
license and install the Software Product.
"End User" means an entity which is granted a license by VAR or by VAR's
Distributor, acquires the Software Product for its own use, and which has no
right to license or transfer the Software Product to third parties.
"End User License Agreement" means the shrink-wrapped standard form of CCC
agreement accompanying each copy of the Software Product which specifies the
terms and conditions of the license to use the Software Product granted by CCC
and VAR to the End User, a copy of such form being attached as Schedule B to
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this Agreement.
"CCC Software" means one or more proprietary CCC software programs
described in Schedule A to this Agreement, each of which includes: (a) the
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object code form of the computer programs in magnetic media; (b) User
Documentation, if applicable, and (c) an CCC End User License Agreement.
"Software Product" means one or more proprietary CCC software programs
described in Schedule A to this Agreement which will be marketed, sold,
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distributed, installed and supported by VAR or its distributors.
"License" means the nontransferable right, granted by VAR or its
Distributor, to use one copy of the Software Product on a single central
processing unit (CPU).
"User Documentation" means the textual written materials relating to CCC
Software, if any, which CCC normally distributes to End Users of CCC Software,
and which are made available by CCC for distribution hereunder.
1. Licenses Granted
(a) CCC Software Licenses
CCC grants VAR a nonexclusive license to distribute copies of the CCC
Software as the Software Product. CCC grants VAR a nonexclusive license to
deliver to its Distributors copies of the Software Product solely for the
purpose of further distribution of Software Product by Distributors to End
Users in accordance with the terms and conditions of this Agreement.
Each and every copy of the Software Product [so distributed by VAR or its
Distributors], to End Users, shall bear unique serial numbers prescribed by
CCC, and such serial number shall be embedded in and delivered as part of the
Software Product. Any [distribution by VAR of the Software Product] without CCC
serial numbers shall constitute a material breach of this Agreement and may
constitute copyright infringement.
All other rights are hereby reserved by CCC. CCC specifically reserves the
right to market CCC Software to or through any other person or entity in the
sole discretion of CCC, and VAR understands and agrees that it obtains no
exclusive rights in any geographic area, customer group, or technical market of
CCC Software except as set forth in Section 17 of the License and Service
Agreement.
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(b) VAR's Distributors and Software Product licenses
CCC grants VAR the right to appoint and license third-party Distributors,
with the right to market, promote and grant licenses for Software Product in
object code form on behalf of VAR and CCC pursuant to this Agreement. Each
Distributor authorized by VAR to license Software Product shall execute a
written agreement with VAR which requires the Distributor to so market and
license Software Product pursuant to this Agreement and approval of CCC which
will not be unreasonable withheld.
Each license granted by VAR or its Distributors for Software Product must
be the End User License Agreement.
VAR agrees to use its best efforts to enforce the obligations of its
license and Distributor agreements, and any material breach by VAR's Distributor
which VAR fails to enforce shall be considered a breach by VAR. CCC shall have
the right to enforce the terms of each Distributor and license agreement.
VAR shall use all practical means available to VAR, both technical and
contractual, to control the restricted use of each license for Software Product.
If the End User makes general use of the CCC Software which goes beyond the
intended restricted use within the Software Product, VAR or Distributor shall
terminate the end user license and all rights related thereto.
(c) User Documentation License
CCC hereby grants to VAR the nonexclusive license to distribute the CCC
documentation in electronic format on the CD-ROM to Software Product End Users
and to Distributors for distribution in connection with Software Product only.
VAR and its Distributors are prohibited from altering the form, content, or
appearance of the Documentation specifically related to CCC Software other than
what is necessary to co-brand the Software Product.
2. Obligations of CCC
CCC represents, warrants and guarantees to VAR as follows:
(a) End User Support Obligations
CCC will provide first level support for Store Front SSL API and HTML Wrapper
for a [*] installation assistance charge.
3. Obligations of VAR
VAR represents, warrants and guarantees to CCC as follows:
(a) End User Installation and Support Obligations
VAR will actively promote Software Products during the term of this
agreement. VAR will actively sell the annual support and upgrade agreements to
their merchants who have purchased the VAR products. VAR agrees that either VAR
or Distributor will install the Software Product and upon installation agrees
to: (i) VAR will provide the first level of support and skilled instruction to
End Users regarding the use and installation of the products, including without
limitation the CCC Software incorporated therein: and (ii) provide, using
skilled support technicians experienced in the Internet industry, technical
support and assistance to End Users which acquire the Software Product in order
to answer their questions regarding the use and operation of the Software
Product and any technical problems encountered. VAR acknowledges and agrees that
providing the service described in this section is essential to successful
marketing and promotion of CCC's Software Products. VAR will not engage in any
timesharing, rental or lease of the Software Product, or internal production use
of CCC Software. CCC and VAR acknowledge that substantial End User
dissatisfaction with Software Product can severely damage that product's
prospects and CCC's general reputation. VAR further specifically agrees that any
breach by VAR of its obligations under this Section 3 shall be deemed a material
breach of this Agreement. VAR may satisfy the End User installation and support
Obligations set forth in this Agreement by requiring the Distributors of the
Software Product to provide the services required under this Section. Nothing
contained herein shall be deemed to excuse VAR from the obligation to provide
such services in the event a Distributor fails to so provide such services. CSI
will provide first level support for the CyberPoint product; and the Store Front
SSL API and HTML Wrapper following installation.
[*] 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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(b) Compliance with Law
VAR will comply, and will use its reasonable best efforts cause its
Distributors to comply with all applicable federal, state and local laws and
regulations in performing its duties hereunder and in any of its dealings with
respect to CCC Software, including but not limited to the export controls
imposed upon CCC, VAR and VAR's distributors by provisions of the U.S. Export
Administration Act of 1979, as amended.
4. Payment Order and Shipment
VAR shall be responsible for End User billing. This would include initial
store front license fees, annual support and upgrade fees, commerce and web
hosting fees, etc. CCC and VAR will agree upon a mutually acceptable monthly
invoicing and payment process between the two companies within 15 days of the
effective date of this Agreement.
Except as otherwise set forth in this Agreement, prices, discounts,
payment and credit terms, minimum order requirements and shipment terms and
conditions applicable to the order and shipment of and payment for CCC Software,
maintenance for same, and copies of Software Product shall be as specified in
Schedule C of this Agreement.
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Pricing set forth in Schedule C does not include foreign and domestic
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sales, use, personal property, excise or other similar taxes or export and
import taxes, duties and charges, however designated. Consequently, in addition
to the payments due hereunder, the amount of any present or future sales, use,
personal property, or other similar tax and export and import taxes, duties and
charges which become due based on the transactions contemplated by this
Agreement shall be paid directly by VAR or shall be paid to CCC upon receipt of
CCC's invoice for any such taxes paid by CCC. If VAR supplies CCC With a tax
exemption certificate acceptable to the taxing authorities which result in
abatement of the tax and refund thereof, if previously paid, then VAR shall be
similarly relieved of liability for such tax and receive a refund of any amount
previously paid to CCC on account thereof.
5. Notification and Records
VAR will notify CCC in writing of any claim or procedure involving CCC
Software no later than five (5) days after VAR learns of such claim or
proceeding. VAR will also report promptly to CCC all claimed or suspected CCC
Software defects.
CCC shall have the right to audit all of VAR's records reasonably related
to this Agreement, subject to mutual agreement by the parties to reasonable
terms of such audit, including, but not limited to nondisclosure and
confidentiality terms. An audit may be conducted on five days' notice, during
VAR's normal business hours, no more than twice each calendar year, and at CCC's
expense. However, if the audit reveals that a material breach of the terms and
conditions of this Agreement has incurred. VAR shall pay all costs of the audit.
6. Limitation of Warranty and Liability
6.1 Limited Warranty
(a) CCC warrants:
(1) that the use or distribution of unmodified CCC Software, or the
exercise of the license granted hereunder, will not violate the
intellectual property rights of any third party under copyright,
trademark or patent law of the United States:
(2) that it has full power and right to license the CCC Software and
perform all other terms of this Agreement:
(3) that it will honor the terms and conditions of the CCC End User
License Agreement:
(4) that the media on which CCC delivers the CCC Software will remain
free from defects in materials and workmanship for a period of
ninety (90) days from the receipt by the End User; and
(5) that the CCC Software when delivered will substantially conform
to the User Documentation.
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(b) EXCEPT FOR THE LIMITED WARRANTIES STATED ABOVE, VAR ACCEPTS THE VAR
SOFTWARE PROVIDED UNDER THIS AGREEMENT "AS IS," WITH ALL FAULTS AND WITHOUT
OTHER WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
6.2 Remedy for Breach of Limited Warranty
(a) VAR's sole remedy for CCC's breach of Section 5.1(a)(1) or 5.1(a)(2)
shall be: CCC will indemnify and hold VAR harmless from and against any loss,
cost, liability, and expense (including reasonable attorneys' fees), arising out
of CCC's breach of any of the warranties or representation of CCC contained in
those Sections, provided: (1) VAR promptly gives written notice of any claim to
CCC, (2) VAR provides any assistance which CCC may reasonably request for the
defense of the claim, and (3) CCC has complete control of the defense.
(b) VAR's sole remedy for CCC's breach of Section 5.1(a)(3), 5.1(a)(4),
and 5.1(a)(5) shall be: during the ninety-day warranty period and without charge
to VAR, a Distributor, or the End User, CCC in its sole discretion will replace
defective media manufactured by CCC with new media, or either provide
maintenance or service to VAR, but not on-site service, to keep the CCC Software
in working order, or replace the CCC Software, or refund the royalty paid to CCC
for the CCC Software.
(c) The above remedies are subject to Sections 5.3.and 5.4 below.
6.3 Limitation of Liability
EXCEPT AS SPECIFIED IN SECTION 5.2. CCC'S LIABILITY TO VAR OR ANY OTHER
THIRD PARTY, FOR A CLAIM OF ANY KIND ARISING AS A RESULT OF, OR RELATED TO ANY
CCC SOFTWARE OR USER DOCUMENTATION PROVIDED PURSUANT TO THIS AGREEMENT, WHETHER
IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), UNDER ANY
WARRANTY, OR OTHERWISE SHALL BE LIMITED TO MONETARY DAMAGES AND THE AGGREGATE
AMOUNT THEREOF FOR ALL CLAIMS RELATING TO ANY PARTICULAR CCC SOFTWARE OR USER
DOCUMENTATION SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE CUMULATIVE LICENSE
FEES PAID TO CCC UNDER THIS AGREEMENT FOR THE 2-MONTH PERIOD PRECEDING ANY CLAIM
FOR THE PRODUCTS THAT GIVE RISE TO THE CLAIM, UNDER NO CIRCUMSTANCES SHALL CCC
BE LIABLE TO VAR OR ANY THIRD PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES (INCLUDING LOST PROFITS), EVEN IF CCC HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, OR FOR WARRANTIES GRANTED BY VAR OR ANY THIRD PARTY
IN EXCESS OF THOSE CONTAINED IN THE STANDARD CCC END USER LICENSE AGREEMENT. NO
ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT
MAY BE BROUGHT BY VAR MORE THAN TWO (2) YEARS AFTER THE EVENT WHICH GAVE RISE TO
THE CAUSE OF ACTION OCCURRED.
6.4 VAR's Indemnification
VAR shall indemnify and hold harmless CCC from all claims, losses, and
damages which may arise from:
(a) representations or misrepresentations made by VAR or VAR's
Distributors:
(b) any warranties granted in excess of those contained in the standard
End User License Agreement of the standard CCC End User License
Agreement:
(c) inadequate installation, maintenance or support by VAR or VAR's
Distributors.
(d) the marketing of the VAR Software by VAR or VAR's Distributors: or
(e) any other act or failure to act in accordance with the terms and
conditions of this Agreement by VAR or VAR's Distributors.
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7. Confidentiality and Proprietary Rights
(a) Title
Title to the CCC Software and all other products, except as set forth in
Sections 16 of the License and Service Agreement, trade secrets and other
proprietary information of CCC and all copies of all or any portion thereof, and
all proprietary rights therein and thereto, including without limitation
copyrights and trade secret rights, shall remain with CCC at all times except as
set forth in Section 16 of the License and Service Agreement.
VAR agrees, except as set forth in Section 16 of the License and Service
Agreement, the and that all tangible objects containing or relating to the CCC
Software and all copies thereof are the sole and exclusive property of CCC and
upon termination of this Agreement for any reason, VAR will forthwith return to
CCC the CCC Software User Documentation, magnetic media, instructions and all
related materials furnished to VAR hereunder and shall not retain any copies for
its use or for any purpose except as otherwise may be specifically permitted by
this Agreement.
Any altered, translated or modified version of CCC Software and all
related materials shall be deemed to be derivative works and shall be owned
exclusively by CCC, provided, however, that title to any new code added by VAR
shall vest in VAR.
(b) Notices
VAR shall not copy any CCC Software at any time for any reason except as
may be specifically permitted by this Agreement. VAR shall not remove, cover,
alter or obfuscate any copyright notices or other proprietary notices placed or
embedded by CCC on or in any CCC Software. VAR agrees not to decompile,
disassemble, or otherwise reverse engineer the object code of any CCC Software.
VAR agrees to take all reasonable measures to protect CCC's ownership
rights and interest in all copyrights, trade secrets, trademarks, service marks
and other property. VAR will promptly during the term of this Agreement and
thereafter, notify CCC of any actual or suspected unauthorized use or disclosure
of CCC Software, User Documentation, copyrights, trademarks, service marks or
trade secrets of CCC of which VAR has knowledge and will cooperate fully in the
investigation of such unauthorized use or disclosure.
In the event of a breach of any of the provisions of this Section, CCC
will not have an adequate remedy in money or damages, and accordingly shall, in
addition to any other available legal or equitable remedies, be entitled to an
injunction against such breach without any requirements to post bond as a
condition of such relief.
8. Advertising and Trademarks
During the term of this Agreement, VAR is authorized by CCC to advertise
CCC Software and related products as outline in the CCC's policies and
guidelines procedures. Advertising media is defined as packaging, product
literature, public relation campaigns, web site information, etc.
VAR's product launch for Software Product shall consist of but not be
limited to, (a) joint press releases announcing VAR and CCC's business
relationship, agreed upon by both parties and released not later than 30 days
after contract signing unless agreed to in writing by CCC, (b) posting of CCC
Software Product description and marketing information in relevant product and
partner areas of VAR's Web site within 30 days of contract signing (c) inclusion
of CCC Software Product information in VAR's printed sales support materials and
sales presentations, and (d) other marketing and co-marketing programs as agreed
to by VAR and CCC, and VAR agrees to use CCC's positioning of Software Product
to differentiate CCC from other companies who VAR may establish a relationship
with.
VAR would be responsible for the packaging and distribution of the VAR co-
branded products. This would include: modification of the standard proposal
material and user manuals to be VAR branded, and the production of diskettes
with VAR labeling. All products could be downloaded if VAR chooses.
VAR shall have the right to use CCC trademarks solely for the purposes and
in the context of identifying the origin of CCC Software. CCC retains the right
to reasonably disapprove any materials which make use of CCC trademarks that VAR
proposes to use in marketing the Software Product.
VAR agrees, with respect to the Trademark "ClearCommerce Corporation",
and the ClearCommerce logo, or trademarks and logos designated as superceding,
"ClearCommerce Corporations" and the ClearCommerce logo by CCC, to including in
each advertisement, brochure, or other such use the trademark symbol "(TM)" and
the following statement:
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"ClearCommerce Corporation" and the ClearCommerce logo are registered
trademarks of ClearCommerce Corporation, Austin, Texas.
In the event that RSA or other branded embedded code is utilized, they
require that their logo, including type set requirements, also appear on the
Software Product, packaging and marketing materials.
VAR shall not market the Software Product in any way which implies that
CCC Software is the proprietary product of VAR or of any party other than CCC.
The Software Products shall in all cases be "co-branded" to include attribution
of the CCC Software to CCC. The form or such attribution shall be approved by
CCC in advance.
Upon expiration or termination of this Agreement, VAR will cease all
display, advertising and use of all CCC names, marks and logos and will not
thereafter use, advertise or display any name, mark or logo which is, or any
part of which is, similar to or confusing with any such designation associated
with CCC Software.
9. Term and Termination
(a) Term
This Agreement shall be effective on the date it is accepted by CCC as
indicated on the signature page and shall be a two year Agreement.
(b) Termination
Either party may terminate this Agreement upon the material breach of this
Agreement by the other party (including failure to timely pay amounts due
hereunder) and failure of the breaching party to cure such breach within thirty
(30) days following its receipt of written notice of such breach from the other
party. Upon termination or expiration of this Agreement for any reason. Customer
shall return to CCC all CCC software, documentation and related materials. CCC
may terminate this Agreement immediately upon notice for any violation by VAR of
Sections 5 (Limitation of Warranty and Liability) and 6 (Confidentiality and
Proprietary Rights).
(c) Automatic Termination
This Agreement terminates automatically with no further action by either
party in the event that either party becomes insolvent or voluntarily or
involuntarily bankrupt or is unable to meet its obligations when they become
due, or if a receiver or other liquidating officer is appointed for
substantially all of the assets or business of such party, or if such party
makes an assignment for the benefit of creditors, or if VAR is liquidated or
dissolved. In no event shall this Agreement or any rights or privileges
hereunder be an asset under any bankruptcy, insolvency or reorganization
proceedings.
(d) Orders after Termination
In the event that any notice or termination of this Agreement is given,
CCC may reject in whole or in part any orders received from VAR after notice but
in no event, after the effective date of termination.
(e) Effect of Termination
(1) All license and other rights granted by CCC shall become null and
void upon the termination of this Agreement, regardless of the
reason for termination, except: (a) for the End User licenses for
CCC Software previously distributed by VAR or VAR's Distributors,
or (b) for a limited license to VAR to use the CCC Software for
the sole purpose of fulfilling any contractual obligations for
maintenance and support services to End Users.
(2) The right to distribute CCC Software already in VAR's inventory
or in transit as of the effective date of the termination, shall
cease on the earlier of: (a) ninety days after the effective date
of termination, or (b) distribution by VAR of the last copy of
CCC Software to a third party. All CCC Software remaining in
VAR's inventory after such ninety day period shall be returned to
CCC. Alternatively, upon CCC's written request, VAR shall destroy
the remaining CCC Software and certify in writing to CCC that all
copies of the CCC Software have been destroyed.
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(3) within thirty days of termination of this Agreement for any
reason. VAR shall return to CCC all materials related to the CCC
Software, except that VAR may retain the minimum number of copies
reasonably necessary to fulfill its contractual obligations for
maintenance and support services. VAR shall continue to make any
payments due to CCC in connection with VAR's fulfillment of such
contractual obligations. Within this time, VAR shall deliver to
CCC a notarized certification signed by an officer of VAR that
VAR has complied with the requirements of this Section.
(4) All outstanding obligations or commitments to pay nonrefundable
amounts to CCC, if any, shall become immediately due and payable.
(5) VAR shall have no right to receive any compensation,
reimbursement or other amounts from CCC, and shall have no
ownership or other right whatsoever in or to (a) the CCC
Software, (b) the User Documentation, (c) any copyrighted
materials relating to the CCC Software, or (d) any trademarks,
service marks, trade secrets or other proprietary rights relating
to the VAR Software, or (e) any goodwill that may have developed
during the term of this Agreement, except as set forth in Section
16 of the License and Service Agreement.
(f) No Damages for Termination
Neither CCC nor VAR shall be liable to the other for damages of any kind,
including but not limited to incidental or consequential damages, on account of
termination of this Agreement in accordance with this Section 8 even if advised
of the possibility of such damages (other than actual damages arising from
breach of obligations under this Agreement).
(g) Survival
Sections 2 (Obligation of VAR), 4 (Notification and Records), 5 (Limitation
of Warranty and Liability), 6 (Confidentiality and Proprietary Rights), 8 (Terms
and Termination) and 9 (General Provisions), as well as VAR's obligation to pay
CCC all sums due hereunder, shall survive termination of this Agreement.
10. Arbitration. Any controversy or claim between CCC and Customer arising out
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of, or relating to, this Agreement or its performance or breach, but excluding
actions for injunctive relief pursuant to Section 12 of the License and Service
Agreement, shall be settled by arbitration in Los Angeles, California in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association: and judgment entered upon the award by the arbitrator may be
entered in any court having jurisdiction thereof. The prevailing party in any
arbitration shall be entitled to reimbursement from the other party of its fees,
costs and expenses incurred in the arbitration. Texas rules of discovery shall
apply during this arbitration.
11. General Provisions
VAR shall at all times be an independent contractor and shall so represent
itself to all third parties. Neither party has granted to the other the right to
bind it in any manner or thing whatsoever and nothing herein shall be deemed to
constitute either party the agent or legal representative of the other nor to
constitute the parties as partners, agents or joint ventures of one another.
VAR may not assign this Agreement or any of its obligations hereunder to
any third party or entity, and this Agreement may not be involuntarily assigned
or assigned by operation of law without the prior written consent of CCC, which
consent shall not be unreasonably withheld. Any attempted assignment in
contravention of this Agreement shall be null and void as to the alleged
assignor and assignee. The provisions hereof shall be binding upon and inure to
the benefit of the parties, their successor and permitted assigns.
CCC shall not be responsible for any failure to perform due to unforeseen
circumstances or for causes beyond CCC's control.
Any notice or communication required or permitted to be given hereunder
must be delivered by hand or mailed by registered or certified mail return
receipt requested, postage prepaid, or sent by cable, charges prepaid, in each
case properly addressed to the addresses of the parties indicated on the
signature page of this Agreement, or at such other addresses as may hereafter be
furnished in writing by either party hereto the other party, and such notice
shall be deemed to have been given as of the date so delivered, mailed or sent.
This Agreement states the entire agreement of the parties. Except as herein
expressly provided to the contrary, the provisions of this Agreement are for the
benefit of the parties hereto solely, and not for the benefit of any other
person, persons or legal entities. No waiver, alternation, or modification of
any of the provisions of his Agreement shall be binding unless in writing and
signed by a duly authorized representative of CCC and VAR and expressly
referring to this Agreement.
VAR acknowledges that it is not entering into this Agreement on the basis
of any representations not expressly contained herein. No employee, agent or
other representative has any authority to bind CCC with regard to any statement,
representation or warranty unless the same is specifically set forth or
incorporated by reference herein.
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Any purchase order or other document issued by VAR shall be deemed to be
issued only for administrative convenience and no term or condition thereof
shall be binding on either party hereto.
The waiver of one breach or default hereunder shall not constitute the
waiver of any subsequent breach or default and shall not act to amend or negate
the rights of the parties under this Agreement.
The Section and Paragraph headings are included as a matter of convenience
and shall not be considered part of this Agreement.
This Agreement is subject to acceptance by CCC at its principal offices in
the State of Texas and shall be governed by and construed in accordance with the
laws of the State of Texas.
In the event that one or more of the provisions contained in this Agreement
shall be invalid, illegal or unenforceable in any respect under any applicable
statute or rule of law, then such provision shall be considered inoperable to
the extent of such invalidity, illegality or unenforceablility and the remainder
of this Agreement shall continue in full force and effect. The parties hereto
agree to replace any such invalid, illegal or unenforceable provision with a new
provision which has the most nearly similar permissible economic effect.
The prevailing party in any suit instituted under this Agreement will be
entitled to recover all cost, expenses and reasonable attorneys' fees incurred
in such action.
This Agreement shall become effective only after it has been signed by VAR
and has been signed by a duly authorized representative of CCC and VAR has been
given notice of its acceptance as indicated by VAR's receipt of a signed copy of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date specified below.
CCC VAR
CLEARCOMMERCE Cardservice International, Inc. a
CORPORATION, a Delaware corporation California Corporation
/s/ Robert J. Lynch /s/ Caesar Berger
- ----------------------------------- -----------------------------------
Signature Signature
Robert J. Lynch President & CEO Caesar Berger/SVP
- ----------------------------------- -----------------------------------
Printed Name/Title Printed Name/Title
6-30-98 6.30.98
- ----------------------------------- -----------------------------------
Date Date
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SCHEDULE A
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Description of Software Product
Description of CCC Software:
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I. CSI/StoreManager Plus features:
StoreManager Plus: StoreManager Plus requires minimal technical expertise and
offers an easy-to-use GUI for storefront creation and maintenance. StoreManager
Plus offers full reports with Graphics capabilities. Utilizes StoreManager Pro
supported on Sun Solaris 2.6.
Merchants can select a border style and color scheme, select a button style.
. Access to shopping cart
. Product/features options support
. Fraud prevention
. Email receipt to customer
. Email notification to merchant
. Real-time transactions
. SSL support
. Reports with graphics and search
tools
. Single image per product
. Flat tax rate by state (multiple next)
Skill Level Required: minimal technical experience required, familiarity with
Windows '95
2. Store Front SSL API: (Client software for Merchants to integrate non-CCC
packaged storefronts to the Hosting Engine featuring bank card sales
transactions using SSI encryption. CSI will be responsible for the
integration of the Hosting Engine API into non-CCC storefronts. Currently,
the Hosting Engine API will support storefronts running on Sun
Solaris Rel. 2.6 Unix platforms and as an enhancement to MS NT 4.0 servers.
3. CyberPoint: See Attachment B (Software requirements documentation-
CyberPoint)
4. HTML Wrapper: See Attachment E (Software requirements Documentation-HTML
Wrapper)
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SCHEDULE B
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FORM OF CCC END USER LICENSE
END USER LICENSE AGREEMENT
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Cardservice International is an authorized reseller ("Reseller") of
ClearCommerce Corporation ("CCC") products subject to the Value-added Reseller
Agreement between CSI and CCC. CSI is authorized to execute this License
Agreement with the Customer on behalf of CCC.
By Using or installing this software, you have signified that you have read the
license agreement below and accepted its terms.
1. Permitted Uses And Restrictions On Use: CCC is granting the End User of this
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CCC software product ("End User") a non-exclusive license to use the object
code versions of this CCC software ("Software Product"). CCC grants to End
User a non-exclusive license ("License") to use the Software Product solely
on computer equipment owned by or leased to End User and solely for the
purpose of enabling End User to sell merchandise or services for End User's
own account. End User shall not use the Software Product to engage, directly
or indirectly, in the offering or "factoring" of products or services for
the account of third parties. End User may make one copy of the Software and
documentation ("CCC Software") solely for backup or archival purposes. The
License shall include End User's right to use (but not duplicate) end-user
documentation provided by CCC. Neither the License nor any CCC Software
shall be transferable to any third party by End User.
2. DISCLAIMER OF WARRANTIES: THERE ARE NO WARRANTIES OF ANY KIND, WHETHER
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EXPRESS OR IMPLIED, WITH RESPECT TO THIS SOFTWARE TO END USER IN CONNECTION
WITH THIS LICENSE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CCC DOES NOT
WARRANT THAT THE SOFTWARE IS FREE FROM BUGS, INTERRUPTION, ERRORS OR OTHER
PROGRAM LIMITATIONS.
3. Term: This Agreement shall be effective from the date it is accepted and
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executed by Reseller as indicated on signature page.
4. Remedies: Limitation of Liability: In the event of any breach of this
---------------------------------
License by CCC, CCC shall have no liability for any loss, cost expense or
damage to End User in an amount exceeding the amounts paid by End User for
the CCC Software. CCC shall not be liable for indirect, incidental,
punitive, exemplary, special or consequential damages of any kind
whatsoever, including lost profits, sustained or alleged to have been
sustained as a result of; (a) any breach of warranty or breach of this
License; (b) CCC's negligence or gross negligence; or (c) any claim made
against End User by any other party, including claims by any payment card
issuer, membership association, processor or agent bank, even if CCC has
been advised of the claim or potential claim. End User retains
responsibility for compliance with all rules and regulations related to
issuance, acceptance, and settlement and clearing of payment transactions.
End User shall indemnify, hold harmless and defend CCC against any claim,
demand, loss or action resulting from End User's possession or use of the
CCC Software. Any action by End User for breach of this License or warranty
must be brought within one (1) year after the cause of action has accrued.
5. Proprietary Rights: End User acknowledges that: the CCC Software, including
------------------
the Software Product and any related documentation and materials, (a) are
the property of CCC and remain so even after delivery to End User; (b) are
confidential and proprietary trade secrets of CCC, protected by law and of
substantial value to CCC, and their use and disclosure must be carefully
and continuously controlled; and (c) are protected by the copyright laws of
the United States. End User shall not, directly or indirectly, or permit
others to; copy, duplicate, or furnish to others any physical, magnetic or
electronic version of the Software Product; remove any copyright or other
notice contained or included in any, material provided by CCC; create or
attempt to create the source computer programs or any part of them from the
object code version of the Software Product; change or modify the Software
Product or create derivative works from them; or reverse engineer or
attempt to reverse engineer the Software Product. End User shall notify CCC
immediately of the unauthorized possession, use or knowledge of any item
supplied to End User pursuant to this License.
6. Termination of License: The term of the License shall continue until
----------------------
termination of this Agreement, or unless termination by CCC for breach of
terms of this License. Upon any termination of this License, End User shall
immediately return to CCC all Software Product and any related proprietary
materials licensed under this License.
7. Applicable Law: This License shall be governed by the laws of the State of
--------------
Texas other than the conflicts of law principles thereof. Any controversy
or claim between CCC and End User arising out of, or relating to, this
License or its performance or breach, but excluding actions for injunctive
relief pursuant to Section 5 shall be settled by arbitration in Austin,
Texas in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect; and judgment entered upon the award
by the arbitrator may be entered in any court having jurisdiction thereof.
The prevailing party in any arbitration shall be entitled to reimbursement
from the other party of its fees (including reasonable attorneys' fees),
costs and expenses incurred in the arbitration.
8. Maintenance Service: Product support assistance, new release of the
-------------------
Software Product licensed by End User from CCC, and corrections to reported
and documented errors in the CCC Software may be provided to End User by
VAR per the terms of any separate Maintenance Services Agreement between
End User and Reseller.
9. Force Majeure: CCC shall have no liability and shall not be deemed in
-------------
breach of this License in the event any act or omission is the result of
any event beyond the reasonable control of CCC, including without
limitation, acts or nonperformance of third parties, equipment failure or
natural disasters.
10. Severabillity: If any provision of this Agreement is invalid or
-------------
unenforceable under applicable law, then it shall be, to that extent deemed
omitted and the remaining provisions will continue in full force and
effect.
11. Assignment: Neither the License nor any rights or responsibilities of End
----------
User hereunder may be assigned or delegated to any third party without the
prior written consent of CCC.
10
12. Publicity: CCC shall be permitted to include End User's name in CCC's End
---------
User list and with End User's prior approval not to be unreasonably
withheld, to use End User's name and logo in CCC's marketing materials.
13. Agents: The agents, employees, distributors and dealers of CCC are not
------
authorized to make modifications to this License, or to make any additional
representations, commitments, or warranties binding on CCC.
14. Miscellaneous: This License sets forth CCC's entire liability and the End
-------------
User's exclusive remedy with respect to the Software, and is a complete
statement of the License between the End User and CCC. Headings are
included for convenience only, and shall not be considered in interpreting
this License. This License does not limit any rights that CCC may have
under trade secret, copyright, patent or other laws.
In witness whereof, the parties have entered into this Agreement as of 30 day of
June, 1998.
Reseller (on behalf of ClearCommerce Corporation) End User
Company CLEARCOMMERCE Company Cardservice International, Inc.
----------------------------------------- -----------------------------------------
By /s/ Robert J. Lynch By /s/ Ceasar Berger
----------------------------------------------- -----------------------------------------------
Title President & CEO Title S. Vice President
-------------------------------------------- ---------------------------------------------
Agreement is valid only is signed by an officer of Reseller. Reseller may refuse to execute any Agreement not duly signed
And returned to Reseller within 30 days of the date
Agreement sent to End User
11
SCHEDULE C
----------
Pricing Terms
CyberPoint, Store Front SSL API, HTML Wrapper Volume Commitment Discounts
Volume Committed 12 months Per month
- -------------------------- ---------
Per Merchant per month charge Initial License Fee
Licenses Initial Fee/Merchant 13 to 24 25 and beyond Prepay
- ----------------------------- ----------------------------- ------
0-1000 [*] [*] [*]
1001-4999 [*] [*] [*]
5000-10,000 [*] [*] [*] [*]
10,001- GTR [*] [*] [*]
CSI will prepay for the initial 5,000 licenses. Of these licenses CSI agrees
that at a minimum [*] will be for the Store Front SSL API. The remaining
licenses will be for CyberPoint, HTML Wrapper and/or Store Front SSL API
licenses. After the initial Quantity [*]. CSI will order additional licenses in
quantity [*].
Store Front SSL API & CyberPoint Users
Per Month
2/nd/-12 beyond 25
Licenses months months
- -------- ------ ------
Assuming CSI has paid the initial license fee for both CyberPoint and the
storefront SSL API, there would be a discount on the monthly license fee of the
second licensed product of [*].
[*] [*] [*]
[*] [*] [*]
StoreManager Plus
Product initial license discount % discount Net Price
fee to CS1 to CSI to CSI
- ------------------------------------------------------------------------
StoreManager Plus [*] [*] [*] [*]
ANNUAL UPGRADES AND SUPPORT CHARGES (due after 1/st/ year)
annual charge discount net price to
to CSI CSI CSI
- ------------------------------------------------------------------------
StoreManager Plus [*] [*] [*]
[*] 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.