License Agreement With Hnc Software Inc.

EXHIBIT 10.1


LICENSE AGREEMENT


This License Agreement is made and entered into effective as of September 30, 1999 (the "Effective Date") by and between HNC SOFTWARE INC., a Delaware corporation having its principal offices at 5935 Cornerstone Court West, San Diego, California 92121-3728 ("HNC"), and DIGITAL INSIGHT CORPORATION, a Delaware corporation having its principal offices at 26025 Mureau Road, Calabasas, California 91302 ("Licensee").


RECITALS


A. HNC is the developer of a certain proprietary software system known commercially as the Capstone(TM) Decision Manager for consumer lending, mortgage lending, and payment card which tracks consumer loan, real estate loan, and credit card applications from initiation through decisioning (the "Capstone Decision Manager").


B. Licensee provides to community financial institutions and credit unions certain products and services related to Internet banking, cash management and web site development. Licensee desires to obtain a license for the use of a software similar to the Capstone Decision Manager that is capable of supporting multiple financial institutions on a single platform.


C. Licensee desires to license the Capstone Decision Manager.


NOW, THEREFORE, in consideration of the mutual agreements and obligations contained herein, the parties agree as follows:


ARTICLE 1


Certain Definitions
-------------------


For purposes of this Agreement, the following terms shall have the meanings set forth herein:


1.1 This "Agreement" means this License Agreement between Licensee and HNC, as it may be amended from time to time by a writing signed by authorized officers of both HNC and Licensee.


1.2 "Confidential Information" has the meaning set forth in Article 6.


1.3 "Designated System" means Licensee's computer systems as described in Exhibit 3 of this Agreement.


1.4 "Designated Use" shall have the meaning as described in Exhibit 3 of this Agreement.


1.5 "Documentation" means the human readable user manuals, and related written materials provided by HNC that describe the use, functionality, output and/or other characteristics of the Software or guidance regarding proper Use of the Software, in either electronic or printed form.


1.6 "End User" means current and potential customers or members of Licensee Clients who will use Software for business and personal use that is customary to the lending industry and not for redistribution.


1.8 "Error" means a defect in the Software that prevents it from functioning in substantial conformity with its Documentation.


1.9 "Software" means all the software owned by HNC that is described as the "Software" in Exhibit 2 to this Agreement, whether in source or object code form. The software programs that are included in the Software are used together collectively to form a single system.


1.10 "Intellectual Property" means, collectively, patents, copyrights, trademarks, trade names, trade secrets, and other proprietary and intellectual property rights.


1.11 "License" means the license rights granted by HNC to Licensee in Article 2 of this Agreement with respect to the Software. ---------


1.12 "Licensee Client" means current or future clients of Licensee comprised of federal credit unions or community banks with assets of $10 billion or less who have contracted or will contract with Licensee for internet-based software products and services.


1.13 "Receipt" means the date on which delivery of the Software occurs, as evidenced by Client's notice of receipt by way of a separate letter to HNC or signed delivery documents.


1.14 "Release" means commercially released modifications to the Software which correct any Errors or defects in the version of the Software (including Documentation) delivered to Licensee pursuant to this Agreement (e.g., by way of example only, "version 5.2", where the new Release is signified by the digit to the right of the decimal).


1.16 "Territory" means the United States of America and its commonwealth, protectorate or territory.


1.17 "Use" means to load, execute, employ, utilize, store, display, distribute or copy any machine readable portion of the Software in accordance with the terms and conditions of this Agreement or to make use of any Documentation or related materials in connection with the execution of any machine readable portion of the Software in accordance with the terms and conditions of this Agreement.


1.18 "Version" means any commercially released modifications or enhancements to the Software product which improve the efficiency or effectiveness of the functions of or add new functionality to the Software or Documentation (such as a release of a new full version of the Software, e.g., by way of example only, "Version 5.0", where the new Version is signified by the digit to the left of the decimal).


ARTICLE 2
---------


Software License; Transfers;


Intellectual Property Rights


2.1 Grant of License of the Software. Subject to the terms and
-------------------------------- conditions of this Agreement, HNC hereby grants to Licensee, a nonexclusive, nontransferable license to Use the Software only in object code form, only in the Territory, only at the Licensee Site and on the Designated System for the Designated Use identified in this Agreement, solely for the benefit of Licensee or to sublicense under the terms and conditions set forth in Exhibit 4 to Licensee Clients for use with End-Users. Except for agents or contractors of Licensee who Use the Software in accordance with this Agreement solely for the purpose of assisting Licensee in exercising its License under this Agreement in the performance of their duties for Licensee, Licensee will not permit any other person or entity to Use the Software other than as permitted herein. HNC shall deliver to Licensee one (1) object code copy of the Software, and, Licensee may make and Use any number of object code copies of the Software to the extent reasonably needed to use the Software in connection with Licensee's business for the benefit of multiple Licensee Clients as


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permitted in this Agreement and to enable Licensee to follow normal backup and disaster recovery procedures.


2.2 Grant of License of Documentation. Subject to the terms and
--------------------------------- conditions of this Agreement, particularly Article 4, HNC hereby grants to Licensee, a nonexclusive, nontransferable license to Use, copy and reproduce in any form the Documentation, to prepare Licensee documentation as a derivative work thereof, and to copy and distribute Licensee documentation, which may include HNC's Documentation, to Licensee Clients.


2.3 Grant of License of Trademark. Subject to the terms and conditions
----------------------------- of this Agreement, HNC hereby grants to Licensee, a nonexclusive, nontransferable license to use and reproduce certain of HNC's logos, trademarks and servicemarks in connection with the Use and promotion of the Software in a manner approved by HNC. HNC agrees that the Software and the Documentation may contain the name, logo and/or trademark of Licensee and/or Licensee Clients, subject to reasonable restrictions as may be imposed by HNC.


2.4 Mergers and Acquisitions Involving Licensee. The parties recognize
------------------------------------------- that the fees charged to Licensee under this Agreement may be determined by taking into account a number of factors, depending on the product licensed, including, but not limited to, the number of Licensee installations anticipated to use the Software and, as applicable, the quantity of data processed. For that reason, the parties agree that in the event Licensee is merged with, acquired by or acquires another entity, or otherwise acquires the rights to process the accounts of another entity, that HNC and Licensee will, in good faith, negotiate and agree to the amount of any additional or increased fees which may be payable to HNC; provided however, that in no event shall the amount of the One-Time License Fee be adjusted after the payment of such Fee. Licensee agrees it will not process any data from such other entity (either combined with Licensee, or as a separate portfolio) through the Software until HNC and Licensee have negotiated the amount of such additional or increased fees.


2.5 Protection of HNC Intellectual Property. The Software and
--------------------------------------- Documentation are protected by U.S. and international copyright and patent laws. Client will reproduce on each copy of the Software and the Documentation the HNC copyright notice and any other proprietary legends that were in the original copy supplied by HNC. Licensee shall not remove or destroy any copyright notice or other proprietary legends or markings placed upon or contained in the Software. Licensee shall not adopt or use any trade name, trademark, or service mark that is, in HNC's reasonable good faith opinion, confusingly similar to the mark or trade name that HNC uses to identify the Software or the services that Licensee performs with the Software in accordance with the provisions of this Section 2.3. Licensee agrees that neither Licensee, nor its
------- employees, representatives, and/or agents will decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human perceivable form or permit any other party to do so. Except as may be otherwise provided in this Agreement, Licensee may not copy, modify, adapt, translate, rent, lease, loan, resell for profit, or create derivative works based upon, the Software. No right, title, or interest in or to the Software or any Intellectual Property in or related thereto is conveyed or assigned by HNC by virtue of this Agreement, except as may be expressly licensed under the terms and conditions set forth herein. HNC retains and reserves the sole and exclusive worldwide right, title, and interest in and to all of the Software, Documentation, any custom code developed by HNC for Licensee (if applicable), and all worldwide intellectual property rights therein and all copies thereof, in whole or in part, subject only to the limited non-exclusive license rights granted to Licensee pursuant to this Agreement.


ARTICLE 3
---------


Delivery of the Software; Escrow


3.1 Delivery. HNC shall deliver the Software to Licensee on or before
-------- September 30, 1999 in a form or medium that permits installation on Licensee's System with reasonable ease. Upon delivery of the Software, Licensee agrees to confirm Receipt to HNC by facsimile or overnight delivery to the address for notice provided in Section 11.8 of this Agreement.


3.2 Software Escrow. Within thirty (30) days after the execution of this
--------------- Agreement, HNC will provide a copy of the Software into escrow with DSI Technology Escrow Services on terms reasonably acceptable to Licensee at the cost of Licensee. Within thirty (30) days after the delivery of any enhancements, upgrades, versions or Custom Programming, HNC will provide a copy into escrow with a third party acceptable to Licensee and on terms acceptable to Licensee. In the event that the Software Escrow Account is utilized, HNC shall provide Licensee with sufficient documentation to enable Licensee to utilize the Software.


ARTICLE 4
---------


Documentation and Maintenance Services


4.1 Documentation. Two (2) numbered sets of Documentation will be
------------- provided to Licensee for the Software. HNC will also deliver one (1) set of such Documentation in electronic format upon Licensee's written request at no additional charge to Licensee. If Licensee wishes to utilize such electronic Documentation, Licensee may provide such Documentation to Licensee Clients or use such Documentation for internal purposes only in connection with its training and related materials, subject to Licensee acknowledgement that HNC owns all worldwide right, title, and interest in and to the Documentation, including, but not limited to, ownership of the worldwide copyrights to the Documentation. In addition, any document created by Licensee and/or any Licensee Client that contains any material from such Documentation must also contain the following statement on the same page where Licensee and/or Licensee Client includes its copyright notice and other attributions: "Portions of this document are copyrighted by HNC Software Inc. and are used by permission of HNC Software Inc."


4.2 Maintenance of the Software. There are no maintenance and/or
--------------------------- support services provided by HNC under this Agreement


4.3 New Versions and Products. The parties acknowledge their
------------------------- understanding and agree that this Agreement does not include: (i) Versions; or (ii) any current or future HNC products which are not included in the Software as delivered to Licensee pursuant to this Agreement. The parties further acknowledge and agree that if Licensee should wish to license a future Version of the Software licensed hereunder (a "Future Version") (when and if such Future Version is available), Licensee may do so under separately negotiated terms regarding installation, support and other such matters. Licensee's licensee fee for such Future Version will be equal to the difference between the list price in effect for the currently licensed Version of the Software as of the Effective Date ("Licensed Version Effective Date") and the list price for such Future Version in effect at the time Licensee licenses such Future Version;, provided that upon Licensee's license of any Future Version, it shall replace Licensee's current licensed version of the Software hereunder. HNC acknowledges and agrees that the agreement for the license of the Future Version (including its price) with Licensee shall be negotiated in good faith and shall be on terms no less favorable to Licensee than terms provided to any of HNC's other licensee, of similar stature, of HNC for such Future Version.


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ARTICLE 5
---------


Fees; Payment Terms


5.1 Invoices and Payment. All amounts stated in this Agreement are in
-------------------- U.S. Dollars and shall be paid to HNC in U.S. Dollars. Unless otherwise noted in this Agreement, all invoices from HNC to Licensee pursuant to this Agreement will be due and payable by Licensee to HNC within thirty (30) days of Licensee's receipt of such invoice.


5.2 Late Charges. Any payment due to HNC hereunder (including but not
------------ limited to payments of license fees or reimbursements of expenses) that remain unpaid for more than thirty (30) days after the date such payment is due to HNC hereunder are subject to a one percent (1.0%) per month late fee.


5.3 One-time License Fee. In addition to any other fees payable to HNC
-------------------- under this Agreement and in consideration of HNC's grant to Licensee of license rights described in this Agreement, Licensee agrees to pay HNC the One-Time License Fee set forth in Exhibit 1, subject to the volume limitations set forth in the exhibit.


5.4 Travel-Related Expenses. All travel expenses reasonably incurred
----------------------- by HNC personnel in connection with the performance of this Agreement will occur only after Licensee's approval, which will not be unreasonably withheld and such expenses are in addition to the payment of any other fees payable to HNC under this Agreement.


5.5 Fees Are Exclusive of Taxes. All payments by Licensee to HNC under
--------------------------- this Agreement for any fees and reimbursement of any expenses will be exclusive of any sales, use, service, or value added taxes, or any other levy, tariff, duty or tax of any kind whatsoever imposed by any governmental authority with respect to the services rendered or expenses incurred by HNC hereunder (other than a tax imposed upon HNC's income). With the exception of the taxes described in the foregoing parenthetical, Licensee agrees to pay, within sixty (60) days of receipt of the applicable HNC invoices, any such tax whenever such tax is imposed by a governmental authority.


5.6 Price Adjustments. The parties shall review, in good faith, all
----------------- fees, prices, and expense reimbursement rates set forth in this Agreement upon each anniversary of the Agreement Effective Date (the "Adjustment Date"), including each year during any renewal of this Agreement. Adjustments may be made to all such fees, prices, labor rates and expense reimbursement rates within three (3) months of the Adjustment Date if both parties agree to the proposed adjustment.


ARTICLE 6
---------


6.1 Confidential Information.
------------------------


6.1.1 Licensee and HNC each agree that neither will, at any time during or after the term of this Agreement, disclose or disseminate to any other person or entity, or use except as permitted by this Agreement, any information regarding the business, data, processes, technology, software or products of the other party obtained during the course of performance under this Agreement (the "Confidential Information"). The Confidential Information of HNC will include, but not be limited to, the Software, its Documentation and any related materials. Each party will use its best efforts to ensure that any Confidential Information obtained from the other party will be disclosed only to the receiving party's employees and agents and only on a "need-to-know" basis, and that such employees and agents will be bound by an obligation to maintain the confidentiality of the Confidential Information substantially similar to the obligations of HNC and Licensee under this Section. Nothing contained herein will be construed to restrict or impair in any way the right of the parties to disclose or communicate any information which (i) is at the time of its disclosure hereunder generally available to the public; (ii) becomes generally available to the public through no fault of the receiving party; (iii) is, prior to its initial disclosure hereunder, in the possession of the receiving party as evidenced in a documentary form; or (iv) is acquired by the receiving party from any third party having a right to disclose it to the receiving party or not known to the receiving party to be in breach of the obligation of confidentiality.


6.1.2 Should disclosure of any information or material covered by this Agreement be sought by way of legal mandate, subpoena, court order, administrative decree, or by any lawful means while the same is in the possession of the party in receipt of such information (the "Recipient") by or anyone acting for, or at the direction of the Recipient, the Recipient shall advise the party which disclosed such information (the "Discloser") of this promptly and subsequently confirm its advice in writing. In addition it shall provide the Discloser by the most expeditious means available with copies of any papers seeking the disclosure of such information together with copies of all material sought if the same exist and are under the Recipient's control. The Recipient shall not disclose any information voluntarily in such circumstances and shall, if requested by the Discloser, take appropriate action to safeguard the confidentiality of such information including, but not limited to, at the Discloser's expense, seeking a protective order of a court of competent jurisdiction.


6.1.3 Both parties acknowledge that the Confidential Information received from the Discloser under this Agreement contains valuable trade secrets of said party, the disclosure of which would cause irreparable harm to Discloser that could not be remedied by the payment of damages alone. Accordingly, for any breach b ...