Application Service Provider Partner Agreement

HYLAND SOFTWARE, INC.
APPLICATION SERVICE PROVIDER PARTNER AGREEMENT


THIS EXHIBIT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. THE CONFIDENTIAL INFORMATION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. IN PLACE OF SUCH OMITTED CONFIDENTIAL INFORMATION, "****" HAS BEEN INSERTED.


1. INTRODUCTION


This Application Service Provider Partner Agreement (the "Agreement") is made and entered into this 31st day of JANUARY 2001 (the "Effective Date") by and between Hyland Software, Inc, an Ohio Corporation, 18500 Lake Road, Suite A-50, Rocky River, OH 44116 USA ("Hyland") and the Recall Corporation a Delaware Corporation, 555 North Point Center East, Suite 150, Alpharetta GA 30022 (the "Application Service Provider" or "ASP").


2. DEFINITIONS


As used in this Agreement, the following shall apply:


2.1 "Agreement" shall mean this Agreement between Hyland and ASP.


2.2 "Application Partner Fee(s)" shall be the amounts payable by ASP to Hyland in accordance with the terms of this Agreement. A schedule of the current Application Partner Fees is attached to this Agreement as Schedule B.


2.3 "Application Service Agreement" shall mean a written agreement between ASP and a customer of ASP relating to any and all uses of the Applications. A sample Application Service Agreement is to be created by Recall and approved by Hyland Software, Inc. prior to use by ASP.


2.4 "Application Service Partner" or "ASP" shall mean the company or entity Identified as such in the Introduction to this Agreement.


2.5 "Application Software" or "Application(s)" shall mean the Hyland Software(R) products identified in Schedule A attached hereto.


2.6 "Confidential Information" shall mean any information relating to or disclosed in the course of this Agreement, which is or should be reasonably understood to be confidential or proprietary to the disclosing party. "Confidential Information" shall not include information (a) already lawfully known to the receiving party, (b) disclosed in published materials, (c) generally known to the public or (d) lawfully obtained from any third party.


2.7 "Customer(s)" shall mean persons or entities including such person's or entity's partner, agents or business associates that use or otherwise benefit from the Application Software and /or employ data processing services from ASP using the Application Software.


2.8 "Delivery Date" shall mean the earliest date that ASP receives any component of the Application Software supplied by Hyland. If the method of delivery is web-based, Delivery Date shall mean that date on which the Application Software and any associated license becomes available for download by ASP.


2.9 "Documentation" shall mean written, printed or electronic documents or materials accompanying the Application Software that describe the use and operation of the Application.


2.10 "Effective Date" shall have the meaning set forth in the Introduction to this Agreement.


2.11 "Excluded Customers" are businesses, entities, and or accounts that license or purchases technology and services from either Fiserv, Inc., a Wisconsin Corporation or Information Technology, Inc., a Nebraska Corporation, or are financial institutions that use the Software for check processing applications, and as further described in Section 9.8


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2.11 "Hyland" shall have the meaning set forth in the Introduction to this Agreement.


2.12 "Primary Support" shall mean services provided by ASP to its Customers for the day-to-day technical support, help and other assistance for Customers' use of the Applications.


2.13 "Secondary Support" shall mean services to be provided by Hyland to ASP including reasonable efforts to assist ASP in providing Primary Support, reasonable efforts to correct, fix or circumvent errors in, and in the discretion of Hyland updates, enhancements and new versions of, the Application Software.


2.14 "Trademark(s)" shall mean all Hyland trademarks and service marks.


3. GRANT OF LICENSE


3.1 During the term of this Agreement, Hyland designates the ASP as a non-exclusive Application Service Partner and grants the ASP the right to use the Application Software under the terms and conditions of this Agreement. This right is non-transferable, except as permitted under Section 15.7, and applies solely to the server-based operation, management and use of the Application Software in unaltered, object code form. Nothing under the terms and conditions of this Agreement, including any of the attachments and Schedules hereto, grants any right to ASP to the use of, or access to, any Application Software source code. This grant does not include any right to reproduce the Application Software, to distribute copies or various of any modules of the Application Software to any third parties including its Customers or to make and/or sell variations or derivative works of the Application Software,provided, however, that ASP shall be permitted to create one copy of each unit of Application Software solely for archival or backup purposes. ASP shall be permitted to customize portions of the Application Software User Interface on its website or otherwise integrate the Application Software into its business offerings. Ownership of copyright and other intellectual and proprietary rights to the Application Software shall remain solely with Hyland.


3.2 Hyland grants to ASP the right to use the Application Software for the purpose of in-house processing of data for customers and to provide access to use the Application Software to ASP's Customers and where applicable, to provide access for business partners and clients of ASP's Customer, provided that appropriate license fee amounts are paid to Hyland as provided in this agreement. Each and every Customer that ASP provides such data processing service for or provides access to the Application Software to must enter into an Application Service Agreement with ASP. The Hyland database layout is proprietary and the use of the database layout in part or in whole constitutes the obligation to the terms of the Application Fee Schedule. This grant allows ASP to use the Application Software in machine-readable code, only at ASP's primary business location or other locations as approved by Hyland in writing. ASP may not sell or transfer the Application Software or any rights to the uses granted herein under any circumstances.


3.3 ASP accepts the grant, in the limited scope provided herein, and agrees to use its commercially reasonable efforts to communicate the features, benefits and pricing and availability of the Application Software to potential Customers in ASP's ordinary course of business.


4 APPLICATION SERVICE AGREEMENTS


ASP must limit and restrict any and all use of or access to the Application Software by third parties to only those Customers who have executed an Application Service Agreement. When the ASP prepares its own form Application Service Agreement, prior to its use with any Customer, ASP shall submit such form to Hyland for approval, which approval shall not to unreasonably withheld.


5. USE OF TRADEMARKS


Hyland grants to ASP's non-exclusive right and license to use the Trademarks for the purpose of marketing the Application Software only: (1) on websites, or in signs and stationery of ASP indicating its status as an authorized ASP, (2) in such marketing materials as Hyland may choose to supply to ASP and (3) in such advertising and other uses as Hyland may authorize in writing. ASP stay not use the Trademarks is applicable with any goods or services other than those of Hyland.


6. TITLE TO APPLICATION SOFTWARE


6.1 All right, title and interest in and to the Application Software, at all times, shall remain the sole and exclusive property of Hyland; (b) other than as expressly provided for in this agreement, ASP shall have no right to distribute, rent, lease, lend, or


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supply Application software; and (c) ASP shall not be permitted to disassemble, extract any source code from or reverse engineer the Application Software.


6.2 All copies of the Application Software, including listings, compilations, partial copies and updates, are the property of Hyland, and ASP's obligations with respect thereto shall survive this Agreement until such time as all said copies in the possession of ASP have been returned to Hyland or destroyed. ASP agrees to include on any and all user interfaces, documentation, access pages or portals that use or are associated with the use of the Application Software such copyright notices and restricted rights legends as supplied by Hyland to protect Hyland's (and Hyland's suppliers) intellectual property rights.


7. APPLICATION PARTNER REPORTS, FEES AND PAYMENT


7.1 ASP shall submit to Hyland a purchase order for each customer the ASP seeks to install and operate under this Agreement itemizing the services to be provided and the fee schedule.


7.2 On or before the fifteenth day of each calendar month following the Effective Date, ASP shall provide to Hyland a report detailing any and all transactions relating to all use of the Application Software for the immediately preceding calendar month. Within thirty (30) days after the end of each calendar month, ASP shall make payments in full for any and all Application Partner Fees due Hyland in accordance with this Agreement. ASP shall make payments to Hyland in U.S. funds. ASP specifically agrees to provide Hyland, upon five (5) days prior written notice and only during regular business hours, access to any and all of the databases or log or activity files associated with the use of the application Software so Hyland may review and independently verify the activity reported by ASP to Hyland.


7.3 The payment obligations stated in this Section 7 are exclusive of any shipping charges, federal, state, municipal or other governmental taxes, duties, excise taxes or tariffs now or hereafter imposed on the production, storage, sale, transportation, import, export, licensing or use of the Application Software. Such charges shall be paid by ASP or, in lieu of payment of any tax, ASP shall provide an exemption certificate acceptable to Hyland and the applicable authority.


8. ASP'S REPRESENTATIONS


ASP represents that it has skill and expertise sales and marketing, and that it also has sufficient qualified staff and financial resources, to carry out all of its obligations under this Agreement including the obligations for providing Primary Support of the Application Software to the Customer.


9. RESPONSIBILITIES OF ASP


9.1 At such time as ASP elects to take on responsibility for installations and Primary Support of its Customers, ASP agrees to professionally perform the services as is commercially reasonably required for the provision of Primary Support of the Application Software for the Customer. ASP will perform any and all installations, upgrades, technical services and Primary Support for the Application Software pursuant to installation and support procedures and policies as developed by Hyland. When Hyland is performing installation, Primary Support, or other services on behalf of ASP, ASP shall pay Hyland for such services according to Hyland's then current pricing for such services.


9.2 ASP will, at Hyland's request, promptly cooperate with Hyland by completing forms, reports or checklists as Hyland may reasonably require, in the ordinary course of its business, that its ASP's complete as part of an installation, upgrade or provision of the Primary Support of the Application Software. So the Hyland may exercise its duties under Section 10.2 of this Agreement, ASP shall identify and promptly inform Hyland of any design or programming errors or omissions in the Application Software, of which ASP becomes aware.


9.3 ASP represents and agrees that it will not make any representations or create any warranties, expressed or implied, concerning the Application Software products, but ASP may relay to ASP's Customers the representations and warranties made by Hyland in the Application Software brochures and technical publications. ASP will take commercially reasonable steps to insure that its employees, agents and others under its direction, abide by the terms and conditions of this provision and this Agreement. ASP and ASP's Customers may rely upon as correct those representations contained in the Application software brochures and technical publications provided by Hyland for ASP's presentations.


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9.4 ASP shall, upon Hyland's request, promptly submit to Hyland reasonable financial statements and such other reasonable financial information, as Hyland shall specify in order to evaluate ASP's financial condition. Failure to comply with this provision shall be a material breach of the Agreement, which, at Hyland's discretion, shall be grounds for termination.


9.5 ASP shall comply with all applicable laws, ordinances, rules and regulations, and ASP shall obtain any and all permits, licenses, authorizations and/or certificates that may be required in any jurisdiction or by any regulatory or administrative agency in connection with the sale, use/or operations of the Application Software; provided, however, that ASP shall have no such duties of compliance where the failure to so comply would not result in a material adverse effect to Hyland. Regardless of any disclosure made by ASP to Hyland of an ultimate destination of the Application Software, ASP agrees not to export either directly or indirectly any Application Software or system incorporating such Application Software without first obtaining a license to export or re-export from the United States Government, as may be required, and to comply with the United States Government export regulations, as applicable.


9.6 ASP agrees that during the term of this Agreement, ASP will not, directly or indirectly, develop, have an ownership interest in, consult, train or engage others to develop, any computer program or Application Software product that is primarily designed to compete with the Application Software.


9.7 ASP assumes full responsibility for the selection of the Application Software to achieve intended results and for the installation, use and results obtained from the Application Software, including but not limited to providing a suitable system for installation and the appropriate environment for operating the Application Software and loading the Customer's data. ASP agrees that it shall be responsible for its own expenses and costs under this Agreement and that Hyland shall have no obligation to reimburse ASP for any expenses or costs incurred by ASP in the performance of ASP's duties hereunder.


9.8 EXCLUDED CUSTOMERS Hyland has entered into an agreement with Fiserv, Inc., a Wisconsin Corporation, and Information Technology, Inc. (ITI), a Nebraska Corporation, whereby Hyland granted to Fiserv, Inc. and ITI an exclusive worldwide rights to license and distribute Software to: 1) customers and accounts of Fiserv, Inc. and ITI, and 2) financial institutions (i.e. banks, saving and loan institutions, and credit unions) for applications that are primarily designed for the processing of checks. OEM agrees to take all reasonable steps to retrain from representing, marketing, or licensing any Software or Private Label Software to any and all Excluded Customers under this provision. In the event that OEM is unaware of the status of a prospective Customer for the Software or Private Label Software relative to this provision, he shall make a reasonable inquiry to determine whether or not the prospective Customers is an Excluded Customer. In the event OEM learns that such accounts is an Excluded Customer, OEM shall discontinue any and all marketing and sales activity with regards to the Excluded Customer.


10. HYLAND'S OBLIGATIONS


10.1 In accordance with the terms of this Agreement and related Schedules, Hyland shall (a) assist ASP with the creation of promotional material (b) advise ASP of the anticipated delivery date of enhancements to the Application Software or new modules; (c) keep ASP updated on any new sales aids or promotional pieces; (d) offer ASP, where appropriate and at Hyland's discretion, education and training courses in accordance with Hyland standard services schedule; and (e) reasonably assist with marketing information when requested by ASP.


10.2 Hyland represents that the Application Software will perform substantially in accordance in all material respects with the product description set forth in the Documentation, as it may exist from time to time. Hyland shall reasonably support ASP in its deployment of the Application Software and shall reasonably assist ASP with the marketing and support of the Applications. In the event either party discovers a material error in the Application Software, Hyland shall, upon notice of such error, use reasonable efforts to provide secondary Support as stated in this Agreement. Such Secondary Support services will be provided by phone, modem or at Hyland's offices and at such times as the parties mutually agree upon.


10.3 Hyland agrees to keep, maintain and protect as confidential all Confidential Information of ASP's in at least as secure a manner as it would protect its own trade secrets.


10.4 Initially Hyland will provide, at Hyland's expense, language conversions of the end-user software interface and related documentation for the following language: English, Spanish, French, German, Portuguese, and Italian. In future releases Hyland may elect to discontinue or modify support for any language. Notwithstanding the forgoing, ASP shall have the option of requiring tha ...