Termination and License Agreement - Exchange Applications Inc. and Carreker Corp.
TERMINATION AND LICENSE AGREEMENT
This Termination and License Agreement, dated as of December 27,
2001 (the "Agreement"), is made by and between Exchange Applications, Inc., a
Delaware corporation ("Xchange"), and Carreker Corporation, a Delaware
corporation ("Carreker") (Xchange and/or Carreker may be individually referred
to herein as a "Party" or, collectively, the "Parties").
WHEREAS, the Parties entered into that certain Xchange Reseller
Agreement dated March 31, 2001 (as amended, the "Xchange Reseller Agreement"),
that certain Master Agreement for Professional Services dated June 13, 2001, and
that certain Software License and Services Agreement dated March 31, 2001
(collectively the "Xchange/Carreker Agreements") wherein, among other things,
Carreker was appointed as a reseller of Xchange's customer solution suite known
as EnAct (as defined below); and
WHEREAS, the Parties desire to terminate the Xchange/Carreker
Agreements and to provide for certain other rights and obligations of the
Parties, all as set forth herein.
NOW THEREFORE, in consideration of the premises, the mutual
covenants and obligations set forth in this Agreement and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
SECTION 1.
1.1 On or before December 31, 2001, Carreker shall make a
non-refundable payment to Xchange of one million five hundred forty thousand
dollars ($1,540,000) for the fees then due under the Xchange Reseller
Agreement which shall represent final payment of all obligations due and owing
under that agreement, except for any obligations that are, or may come to be,
due and owing pursuant to Sections 3.4, 10.1 and/or 10.2 thereof. Such payment
shall be made by wire transfer of immediately available funds and such payment
shall be received by Xchange no later than 11:00 AM EST on December 31, 2001.
Upon execution of this Agreement, Xchange shall pay to Carreker the total
outstanding amounts listed in Schedule 1 hereto.
1.2 Subject to Xchange's receipt of the payment by Carreker set forth in
Section 1.1, the Xchange/Carreker Agreements shall be hereby terminated as of
December 31, 2001 in all respects and shall have no further force or effect,
except as set forth in the last sentence of this Section 1.2. Effective as of
December 31, 2001, the Parties hereby, except as set forth in the last sentence
of this Section 1.2, mutually release, acquit and discharge each other and each
of the other's officers, owners, directors, employees and agents and against any
and all known or unknown, direct, indirect, special, incidental, consequential,
exemplary, multiple, incidental, liquidated or unliquidated, actions, causes of
action, chooses in action, suits, debts, dues, damages, liabilities, accounts,
bonds, covenants, contracts, claims, demands or other obligations whatsoever, in
law or in equity, which either Party ever had, now has or hereafter shall or may
have by reason of or in any way arising out of any cause, matter or thing
whatsoever with respect to the Xchange/Carreker Agreements. Except as set forth
in the last sentence of this Section 1.2, each of the parties hereby irrevocably
covenants to refrain from, directly or indirectly, asserting any claim or
demand, or commencing, instituting or causing to be commenced, any action or
proceeding of any kind against the other Party based on any matter which is the
subject of the immediately preceding sentence. Upon the reasonable request of
the other Party, each Party agrees to execute and deliver any and all additional
documents and instruments that are or may be
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necessary and/or desirable to effectuate the provisions of this Section 1.2.
Notwithstanding the foregoing provisions of this Section 1.2, however, the
provisions of Sections 3.4, 10.1 and 10.2 of the Xchange Reseller Agreement
shall survive.
1.3 On or before December 31, 2001 Carreker shall, and hereby agrees to,
voluntarily dismiss with prejudice that certain Plaintiff's Original Petition
filed by Carreker against Xchange (and certain other parties) in District Court
of Dallas County, Texas on November 13, 2001 (Case No. DL 9885).
1.4 Subject to Section 2.5, upon execution of this Agreement and until
the License (as defined below) is terminated, Xchange agrees not to renew,
revise, or extend any agreements, or enter into any new agreements, with
customers for EnAct in the Financial Services Market (as defined below).
1.5 Subject to Xchange's receipt of the payment by Carreker set forth in
Section 1.1, Xchange shall transfer to Carreker all of its right, title and
interest in and to the equipment listed in Schedule 3 hereto (the "Equipment")
on December 31, 2001. Xchange shall make all such Equipment available to
Carreker at its current location(s) and Carreker shall be responsible for all
delivery arrangements with respect thereto. The risk of loss with respect to all
the Equipment shall pass to Carreker immediately upon the date hereof. From the
execution of this Agreement until the delivery of the Equipment to Carreker (but
in no event more than one month after the execution of this Agreement), Xchange
shall take commercially reasonable efforts to ensure that the Equipment is not
damaged or otherwise impaired. THE EQUIPMENT IS TRANSFERRED BY XCHANGE "AS IS"
WITHOUT WARRANTY OF ANY KIND. XCHANGE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN WITH RESPECT TO THE EQUIPMENT INCLUDING,
WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL XCHANGE BE LIABLE FOR DIRECT SPECIAL,
PUNITIVE, INDIRECT, INCIDENTAL, CONSEQUENTIAL, TORT OR OTHER DAMAGES, INCLUDING
WITHOUT LIMITATION ANY DAMAGES RESULTING FROM OR IN ANY WAY RELATED TO THE
EQUIPMENT, EVEN IF XCHANGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
AND REGARDLESS OF WHETHER ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
SECTION 2.
2.1 Subject to the receipt of the payment by Xchange from Carreker
pursuant to Section 1.1 and the other the provisions of this Agreement, Xchange
hereby grants to Carreker an irrevocable, nonexclusive, royalty free, perpetual
license (the "License") in and to all versions of EnAct (as defined below),
including, without limitation, the right to use, develop, modify, enhance, copy,
distribute, and sublicense EnAct, such License to take effect as of December 31,
2001. Subject to all end-user licenses and other end-user agreements currently
in effect, to the HP Agreements (as defined below) and to Section 2.5, the grant
of the License shall be exclusive in the Financial Services Market (as defined
below). Carreker may, pursuant to the License, employ EnAct in the development
of software programs and products, including, but not limited to, products
having the same look, feel, and functionality as EnAct or products which may be
competitive with EnAct and which would constitute infringement but for the
license granted herein without accounting to or compensating Xchange in any way.
Xchange hereby acknowledges and agrees that Carreker shall own all proprietary
rights, including without limitation patent, copyright and trade secret rights
in and to any derivative work created as a
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result of this License and Xchange shall not acquire any rights, express or
implied, to such derivative work. Carreker may, pursuant to the License,
market, sell, license, sublicense or otherwise distribute EnAct without
obligation to Xchange other than as set forth in this Agreement and may
eliminate all reference to Xchange in any software or documentation of EnAct.
The term "HP Agreements" means the following agreements: Action Systems
Certification and Reseller Agreement by and between Action Systems Inc. and
Hewlett-Packard Company dated September 30, 1998; Agreement dated October 1,
1999 by and between Action Systems, Inc., Hewlett-Packard and HP-Brazil;
Agreement dated February 1, 2000 by and between Action Systems, Inc. and
Hewlett-Packard Brazil; Letter Agreement dated February 2, 2000 by and between
Hewlett Packard and Action Systems, Inc.; Master Agreement for Professional
Services dated August 14, 2000 by and between Xchange and HSBC Bank Brasil S.A.
2.2 Xchange shall, on or before January 1, 2002, deliver to Carreker (a)
one copy of the following materials (in machine readable form): source code,
database scripts, object code and version control repositories for each version
of EnAct, both generic and client specific (if and to the extent that client
specific materials are reasonably available), that is currently in development
or has been commercially released and (b) one electronic copy (or one written
copy if only available in written form) of all EnAct documentation and/or
courseware that has not previously been delivered to Carreker (if reasonably
available).
2.3 Xchange may terminate the License immediately upon written notice if
Carreker fails to meet its obligations set forth in Sections 1.1 or 1.3.
2.4 As long as the License is in effect, but subject to Section 2.5,
Xchange agrees not to distribute any Restricted Products and Services (as
defined below) to the Financial Services Market. The term "Restricted Products
and Services" means (a) products or services created by Xchange after the date
hereof into which Xchange incorporates any component of EnAct, (b) products or
services of Xchange that exist, or are currently in development, on the date
hereof, into which Xchange incorporates any component of Enact after the date
hereof and (c) products or services of Xchange into which Xchange has
incorporated substantially all of the components of EnAct. Notwithstanding the
foregoing, the term "Restricted Products" shall not include any products or
services into which Xchange incorporates or has incorporated any component of
EnAct if such incorporated component was incorporated into or included within
another Xchange product or service (other than EnAct) prior to the date hereof.
For purposes hereof, the term "incorporates (or incorporated) any component of
EnAct" means the inclusion of any component of the Software, Documentation or
Methodologies of EnAct in a manner which would constitute copyright infringement
of EnAct under Title 17 of the United States Code (the "Copyright Act"),
provided that such term shall not include any such inclusion if (a) the
component is, or is based upon or derived from, material, ideas or concepts in
the public domain and therefore not protected under the Copyright Act, (b) the
component in question is insubstantial in amount and/or value and/or (c) the
inclusion of such component was not done knowingly. Notwithstanding the
foregoing sentence, if any such inclusion was not done knowingly and the product
or service in question is distributed to the Financial Services Market (and (a)
and/or (b) of foregoing sentence do not apply), Xchange shall use reasonable
commercial efforts to remove the component in question from the applicable
product or service for the Financial Services Market but Xchange shall not
otherwise be liable to Carreker therefor.
2.5 Notwithstanding anything in this Agreement that may be to the
contrary, this Agreement is not intended to, and shall not, restrict or prevent
Xchange from performing
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maintenance, development, support and/or any other services pursuant to
existing contracts for end users of EnAct.
2.6 The term "EnAct" means the Xchange EnAct customer relations
management solution suite described in Schedule 2, but only as described on
Schedule 2. The term "Financial Services Market" means institutions that
provide Banking Services to businesses and/or individuals; provided, however,
that if any such institution provides services and products other than Banking
Services and Banking Services are not its primary business, the institution
must have total Banking Services assets or Banking Services assets under
management in excess of ten billion dollars ($10,000,000,000). Except as set
forth in the immediate following sentence, in no event shall the Financial
Services Market include institutions that only provide brokerage, investment
banking or services other than Banking Services. In addition, the term
Financial Services Market shall also include NRMA, Standard Bank-Insurance,
Axa (fka Equitable), First National Bank Insurance, Liberty Life, NEDCOR
Insurance, Scottish Widows, Royal & Sun Alliance, Thomas Cook, Cigna, Dreyfus,
Farm Credit Corp., and Saskatchewan Wheat Pool. The term "Banking Services"
means loans, checking, savings and other deposit account services or trust
services.
SECTION 3.
3.1 Carreker acknowledges that it may come into possession of
Confidential Information (as defined below) of Xchange, and that such
Confidential Information may be used by Carreker solely for the purposes
permitted by this Agreement. All Confidential Information shall be received
and held in confidence by Carreker, subject to the provisions of this
Agreement. Carreker acknowledges that it will not obtain any rights of any
sort in or to the Confidential Information as a result of such disclosure and
that any such rights must be the subject of separate written agreement(s).
Carreker shall take all reasonable steps, including at least steps fully
commensurate with those employed by Carreker for the protection of its own
Confidential Information of like importance, to protect the Confidential
Information. Nothing herein shall prevent Carreker from disclosing all or part
of the Confidential Information as necessary pursuant to the lawful
requirement of a governmental agency or when disclosure is required by
operation of law; provided, however, that prior to any such disclosure
Carreker shall (i) promptly notify Xchange in writing of such requirement to
disclose and (ii) cooperate fully with Xchange in protecting against any such
disclosure or obtaining a protective order. Any information so disclosed shall
continue to be treated as Confidential Information hereunder.
3.2 "Confidential Information" means all proprietary and confidential
information of Xchange that has been designated as confidential, including
without limitation trade secrets, technical information, business information,
sales information, customer and potential customer lists, sales plans,
inventions, developments, discoveries, software, know-how, methods, techniques,
formulae, data, processes and other trade secrets and proprietary ideas or
information, whether or not protectable under patent, trademark, copyright or
other intellectual property laws except any portion thereof which Carreker can
prove was: (a) known to Carreker, before receipt thereof under this Agreement or
the Xchange Reseller Agreement; (b) disclosed to Carreker by a third person who
is under no obligation of confidentiality with respect to such information and
who otherwise has a right to make such disclosure; or (c) or becomes generally
known through no fault of Carreker. Carreker hereby acknowledges that all
software, documentation and other materials and components of EnAct, including
without limitation the items identified in Schedule 2 that qualify as
Confidential Information pursuant to the immediate preceding sentence, are
hereby, or have been, designated by Xchange as confidential.
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SECTION 4.
4.1 Each Party shall indemnify, defend and hold harmless the other Party
(including such other Party's partners, officers, directors, employees, agents
and affiliates) from and against any and all expenses (including but not limited
to reasonable attorney's fees and costs of investigation and defense), judgments
and settlements arising out of or related to any third party claims or actions
of breach of contract, negligence or willful misconduct by the indemnifying
Party.
4.2 Xchange shall indemnify, defend and hold harmless Carreker
(including Carreker's partners, officers, directors, employees, agents and
affiliates) from and against any and all expenses (including but not limited
to reasonable attorney's fees and costs of investigation and defense),
judgments and settlements arising out of or related to any third party claims
or actions of infringement by EnAct, in the form delivered to Carreker under
this Agreement, of any now currently existing or now pending patent, copyright
or trade secret, except for any claim or action which is the subject of
Section 4.3 below.
4.3 Carreker shall indemnify, defend and hold harmless Xchange
(including Xchange's partners, officers, directors, employees, agents and
affiliates) from and against any and all expenses (including but not limited
to reasonable attorney's fees and costs of investigation and defense),
judgments and settlements arising out of or related to any third party claim
or action which arises out of or relates in any way to, in whole or in part:
(i) any addition to or modification of EnAct by Carreker; (ii) the use by
Carreker or its customers and/or licensees of a superseded or altered release
of EnAct if such claim or action would have been avoided by the use of a
current or unaltered release of EnAct; (iii) the combination, operation or use
by Carreker or its customers and/or licensees of any component of EnAct
furnished under this Agreement with software, hardware or other materials not
furnished by Xchange; or (iv) use of EnAct by Carreker or its customers and/or
licensees in any manner other than as EnAct is intended, by Xchange, to be
used on the date hereof.
4.4 The rights of either Party (the "Indemnified Party") to the
indemnification from the other Party (the "Indemnifying Party") set forth in
Sections 4.1, 4.2 or 4.3 above are subject to the Indemnifying Party receiving
from the Indemnified Party (a) prompt written notice of any such claim (but
failure to give such prompt notice shall only be a disqualification to
indemnification to the extent that such failure results in material and
permanent prejudice to the defense of the claim), and (b) all reasonable
requested assistance, in the defense or settlement of such claim or suit. The
Indemnifying Party shall provide reimbursement for out of pocket expenses
incurred by the Indemnified Party in providing requested assistance hereunder.
The Indemnifying Party shall be given the full and complete authority and
control of the defense or any negotiated settlement relative to the subject
matter of this Section 4.4; provided that the (i) Indemnified Party shall be
entitled to appear, at its own expense, at any hearing or proceeding related
thereto and (ii) any settlement or resolution entered into by the Indemnifying
Party must completely release the Indemnified Party from all liability related
to the claim. In no event shall the Indemnifying Party be responsible for the
settlement of any claim entered into by the Indemnified Party unless such
Indemnifying Party (x) was given full notice of the terms and conditions of the
settlement and (y) has expressed its approval to such settlement in writing.
4.5 The Parties' respective rights and remedies for the matters
described in this Section 4 shall be limited to the indemnification set forth
in this Section 4. If any action or claim
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of the type described in Section 4.2 or 4.3 is commenced or threatened or, in
the opinion either Party, is likely to be commenced or threatened, the Party
that bears, or would bear, the obligation to provide indemnification pursuant
to section 4.2 and 4.3 with respect to such action or claim shall take
commercially reasonable efforts to provide and/or procure (but, except for the
indemnification provided in Section 4.2 and 4.3, shall not have any liability
to the other Party for any failure to so provide and/or procure) a license,
right, modification, replacement or other solution to allow the continued use
or other exploitation of the intellectual property in question or to otherwise
settle, avoid or resolve the claim or action in question. Notwithstanding the
foregoing, in the event that an injunction is issued which prevents the use of
the intellectual property in question and neither Party is able, after
commercially reasonable efforts, to produce a modification or replacement for
the infringing intellectual property, the indemnifying Party agrees to use
commercially reasonable efforts to obtain, or assist the other Party to
obtain, a license on commercially reasonable terms for the infringing
intellectual property.
SECTION 5.
5.1 Each of the Parties hereby represents, warrants and covenants that
it has full authority to enter into this Agreement and that the Agreement is
its valid and binding obligation.
5.2 Xchange represents and warrants that it possesses all necessary
rights to grant the License; provided, however, that Carreker's sole remedy
for any breach of this warranty shall be the indemnification provided in
Sections 4.2 and 4.5 above.
5.3 ENACT IS NOT ERROR-FREE AND IS BEING PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND. XCHANGE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS
OR IMPLIED, ORAL OR WRITTEN WITH RESPECT TO ENACT INCLUDING, WITHOUT
LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
NON-INTERFERENCE WITH ENJOYMENT, ACCURACY, SECURITY, COMPATIBILITY,
INTEGRATION, VALIDITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. CARREKER
ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY PROVIDED HEREIN NO OTHER WARRANTIES WITH
RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT HAVE BEEN MADE TO CARREKER BY
OR ON BEHALF OF XCHANGE OR OTHERWISE FORM THE BASIS FOR THE BARGAIN BETWEEN
THE PARTIES.
5.4 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, TORT OR OTHER
DAMAGES (EXCEPT DIRECT DAMAGES), INCLUDING WITHOUT LIMITATION ANY DAMAGES
RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, CLAIMS BY THIRD
PARTIES OR LOSS OF BUSINESS ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY
RELATED TO ENACT OR THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY
REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. EXCEPT FOR BREACHES OF SECTIONS
4.1, 4.2 AND 4.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR DIRECT DAMAGES IN EXCESS OF ONE MILLION FIVE HUNDRED THOUSAND DOLLARS
($1,500,000).
SECTION 6.
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6.1 This Agreement and the Schedules attached hereto set forth the
entire agreement between the Parties concerning the subject matter hereof and
supersede all other agreements or understandings, written or oral, relating
thereto, except for that certain Work Order dated October 28, 2001. No
representation, promise, inducement or statement of intention has been made by
either Party which is not set forth in this Agreement and neither Party shall
be bound by or liable for any alleged representation, promise, inducement or
statement of intention not so set forth. No amendment or modification of this
Agreement or any provision hereof shall be binding upon any Party hereto
unless made in writing and signed by the Parties.
6.2 This Agreement shall be binding upon, and inure to the benefit of,
the Parties and their respective successors, legal representatives, and
permitted assigns; provided, however, that this Agreement is personal to both
Carreker and Xchange.
6.3 This Agreement may not be assigned or otherwise transferred by
either Party to any third party other than as provided herein without the
prior written consent of the other Party; provided, however, that the consent
of the other Party shall not be required in the event that this Agreement is
assigned to a purchaser of all, or substantially all, the assigning Party's
assets or equity. Any attempt by either Party to assign or transfer this
Agreement, or any of the rights or duties contained herein other than as
specifically set forth in this Section 6.3 shall be void.
6.4 This Agreement is not intended in any way to create the
relationship of employer and employee, independent contractor or principal and
agent between Xchange and Carreker and under no circumstances shall Carreker
be considered an employee or agent of Xchange. Neither Party shall have the
authority to vary, alter or enlarge any of the other Party's obligations
hereunder or to make representations, warranties or guarantees on behalf of
such other Party.
6.5 No waiver of any default hereunder shall operate as a waiver of any
other default or of a similar default on a future occasion. No waiver of any
term or condition hereof shall be effective unless the same shall be in writing
and signed by an authorized representative of the Party waiving such term or
condition. No remedy referred to in this Agreement is intended to be exclusive,
but each shall be cumulative and in addition to any other remedy referred to
herein or otherwise available at law or in equity.
6.6 Neither Xchange nor Carreker shall be liable for any delays in their
performance of any obligations hereunder due to causes beyond its reasonable
control, including, but not limited to, fire, strike, war, riots, acts of any
civil or military authority, acts of God, unavailability or shortages of
materials or equipment, failures or delays in delivery of vendors and suppliers
or delays in transportation.
6.7 Each Party hereto agrees that it will not make any public disclosure
of the specific financial terms of this Agreement without the prior written
consent of the other Party hereto and neither Party shall use the other Party's
name in any marketing, promotional or other materials without the express prior
written consent of such other Party, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing provisions of this Section 6.7, consent
shall not be required in any event if such disclosure is required by applicable
law, rule or regulation; provided, however, that with respect to any press
release required by any rules or regulations of the Securities and Exchange
Commission, the disclosing Party shall provide the other Party with a copy of
such release within a reasonable time prior to such disclosure.
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6.8 This Agreement shall be governed by, and construed and enforced
with, the substantive law of the State of Delaware, without giving effect to
choice of law principles. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to any of the transactions
contemplated by this agreement.
6.9 The Parties agree that this Agreement is entered into in connection
with the compromise, resolution and settlement of the legal proceeding
referenced in Section 1.3 above and that such compromise, resolution and
settlement shall not be taken as an admission of liability by any Party, but
rather, such liability is expressly denied; nor shall this Agreement be
admissible in any proceeding or cause of action as an admission of liability
against the Parties.
6.10 Any notices required to be delivered by one Party or another under
or in connection with this Agreement shall be deemed sufficiently given if
actually received or if sent by certified mail, return receipt requested, to
the applicable individual and address indicated below:
If to Xchange: Exchange Applications, Inc.
One Lincoln Plaza
89 South Street
Boston, Massachusetts 02111
Attn: President
If to Carreker: Carreker Corporation
4055 Valley View Lane,
Suite 1000
Dallas, Texas 75244
Attn: General Counsel
6.11 In the event that any covenant, condition or other provision
herein contained is held to be invalid, void, or illegal by any court of
competent jurisdiction, the same shall be deemed to be severable from the
remainder of this Agreement and shall in no way affect, impair, or invalidate
any other covenant, condition, or other provision herein.
6.12 This Agreement may be executed in one or more counterparts each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Execution and delivery of this Agreement by
facsimile transmission shall constitute execution and delivery of this Agreement
for all purposes, with the same force and effect as execution and delivery of an
original manually signed copy hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement
as of the date filed above written.
CARREKER CORPORATION EXCHANGE APPLICATIONS, INC.
By: John D. Carreker, Jr. By: F. Daniel Haley
--------------------- ---------------
John D. Carreker, Jr., CEO F. Daniel Haley, CFO
(Name and Title) (Name and Title)
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SCHEDULE 1
INVOICE # AMOUNT
17275 $4,500.00
17272 $42,581.30
17271 $28,023.21
16588 $32,473.37
16587 $15,082.95
16586 $ 2,250.00
16585 $17,625.00
PS-1010 $10,673.65
PS-1017 $2,385.80
TOTAL $155,595.28
=======================
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SCHEDULE 2
PRODUCT SCHEDULE
EnAct is defined as the customer relations management product
currently marketed by Xchange under that name and consists of (a) the Software
("Software") and Documentation ("Documentation") set forth below and (b) the
methodologies (the "Methodologies") disclosed by Xchange to Carreker in the
Documentation and Software which Xchange deems necessary for Carreker to deliver
the local marketing "best practices" consulting services (the "Consulting
Services") as described in the Documentation.
EnAct is comprised of but not limited to the following:
SOFTWARE
--------
ENACT SOFTWARE VERSIONS - INCLUDING 1.2.x, 1.3.x, 2.2, 2.2.1, 2.2.2, 2.3, 2.3a,
3.0, 3.0.1, 3.1, 3.1.1, ALL
POST-3.1 RELEASES, AND ALL DERIVATIVE WORKS
ENACT SOFTWARE TUTORIAL - TUTORIAL GUIDE: VERSIONS 3.x, 2.x, 1.x
DOCUMENTATION
-------------
SOFTWARE DOCUMENTATION
----------------------
User Guides
Administration Guides
Installation Manuals
Troubleshooting Guides
EnAct Primers
Release Notes
Release Announcements
(to the extent that such software documentation exists)
BUILDING INVESTMENT SALES
-------------------------
Admin Guide
Facilitator Tool Kit
Participant Text
Spines
ENACT
-----
EnAct Consultant Certification
Case Study Material for EnAct Certification
Decoders
EnAct Facilitator Certification
EnAct Software Pre-work Practice Sets
Fac Cert Agnd Tchbck Assignments
Fac Cert Guide for ASI Bus Cons
Fac Cert Prog Ldrs FG
EnAct Software Pre-work Practice Sets
Participant Materials
Profiling for Success
Software Manuals
EnAct 2.2 User Training Materials
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Participant's Guide
Facilitator Certification Process
Administrator
Candidate
Integration Kit
Facilitator Materials
Facilitator Guide, Binder 1
Facilitator Guide, Binder 2
Facilitator Presentation
Facilitator's Notes
Coach's Workshop Facilitator Guide
Coaching Presentation
Facilitator 1
Facilitator 2
Participant Materials
Coaches Tool Kit 1
Coaches Tool Kit 2
Manager's Tool Kit
Market Plan Presentation Tool Kit
Playbook
Profiling for Success
Coach's Tool Kit
Tool Kit
Leading Market Competence
Coach's Tool Kit
Facilitator's Guide
Handouts
Participant Workbook
REACTS Game
Tool Kit
Managing Local Markets
Facilitator Materials
Coach's Guide
Coach
Handouts
Handouts
Overheads
Overheads
Facilitator Guide
Facilitator
Handouts
Handouts 1
Handouts 2
Overheads
Overheads 1
Overheads 2
Overheads
Sample MAC-IMP Kit
MAC.IMP Kit
MAC.IMP
Technology Transfer
Facilitator
Tool Kit
Wallcharts
Facilitator Wallcharts
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MLM Materials Other
Call Center
Session I
Overheads
Session II
Session III
Communication Tools
Core Tactics
Executive Constancy Tool Kit
Implementation Guidelines
Facilitator's Certification
Handouts
Session I
Session II
Quick Study Article
Right Article
Handouts and Articles
Connecting Business Goals to SSE Market Plan
Connecting Business Handout
Customer Roundtable Handout (English)
Customer Roundtable Handout
Executive Summary Handout
Local Market Tactics Handout
In Store
Copy of Facilitator's Guide In Store (English)
EnAct In Store
Facilitator's Guide In Store (English)
Implementation Guide In Store (English)
Implementation Guide for EnAct In Store
Part Text In Store (English)
Part Text for EnAct In Store
MLM for Product Managers
Admin Guide
Implementation Guidelines
Participant Text
Pre-work
MLM for Support Centers
Admin Guide
Implementation Guidelines
Participant Text
MLM for Telephone Banking Centers
Admin Guide
Implementation Guidelines
Participant Text
Pre-work
Nuts and Bolts
Quick-Start Managing Tactical Practices
Coaches Tool Kit
Participant Workbook
EPS Files
Participant Text
Tools
REACTS Game
Small Units
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Discarded Parts
Handouts
Streamlined
MLM.BGuide
Session I
Session II
Session III
Admin Guide
Support
Revisions
Overheads.Handouts
PC Word Docs
Integration Handouts
Session I
Session II
Integration Market Plan
Year 3 and Beyond
Facilitator Guide
Participant Text
Overheads
Participant Materials
Coach's Tool Kit
Coach's Tool Kit
Roadmap
Implementation Guide
Implement Handout 1
Implement Handout 2
Implement Session 1
Implement Session 2
Implement Session 3
Kick-Off Meeting Guide
Evaluation
Handout
Manual
Mining Local Markets PPT
Mining
Nuts and Bolts
Nuts and Bolts
Managing Tactical Performance
Handouts
Playbook
Tool Kit
District Manager Tool Kit
Market Management Routines
Facilitator's Guide
Tool Kit
Relationship Banking
Program 1 Building Commercial Business
Administrator
Handouts
Participants
Product Skills
Skill Card
Skill Practice A
Skill Practice B
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Wall Charts
Program 2 Building Retail Business
Administrator
Participants
Product Profiles
Skill Guide
Skill Practice A
Skill Practice B
Wall Charts
Program 3 Managing Business
Program 3A Managing Commercial Business
Administrator
Participant
Skill Card
Wall Charts
Program 3B Managing Retail Business
Administrator
Participant
Skill Card
Wall Charts
Program 4 Building Client Relationships
Program 4A Making Joint Calls
Administrator
Participant
Sample Memo
Skill Card
Skill Practice A
Skill Practice B
Skill Practice C
Wall Charts
Program 4B Maturing the Relationship
Administrator
Participant
Skill Card
Skill Practice A
Skill Practice B
Wall Charts
Program 4C Negotiating With Clients
Administrator
Participant
Skill Card
Skill Practice A
Skill Practice B
Wall Charts
Program 5 Enhancing Client Relationships
Facilitator
Participant
Service Profile
Skill Card
Wall Charts
Barriers
Clarify Needs
Client Compliants
Enhancing
Product Skills
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Relationship Teller
Relationship Transactions
Special Explanation
Program 6 Building Independent Business
Program 6A Understanding Business Lending (BIB)
Facilitator 1
Participant 1
Program 6B Talking Business with Business (BIB)
Facilitator 2
Participant 2
Program 6C Business Markets and Products (BIB)
Evaluation
Facilitator 3
Participant 3
Program 7 Building Trust Business
Program 7A Institutional Trust Administration (BTB)
Overview
Administrator Materials
Administrator
Overhead
Wall Charts
Participant Materials
Evaluation
Extra Form
Participant
Skill Card
Program 7B Building Trust Sales (BTB)
Administrator Materials
Administrator
Wall Charts
Participant Materials
Evaluation
Extra Forms
Participant
Skill Cards
Program 7C Personal Trust Administration
Summary
Administrator Materials
Administrator
Wall Charts
Participant Materials
Evaluation
Extra Forms
Participant
Prework
Skill Cards A
Skill Cards B
Program 7D Personal Trust Sales (BTB)
Administrator Materials
Administrator
Participant Materials
Evaluation
Extra Forms
Participant
Skill Card
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Program 8 Market-Driven Sales Management
Program 8A Market-Driven Sales Management
Facilitator
Handouts
Sales Meeting Kit
Sales Management Assessment Survey
Tool Kit
Wall Charts
Program 8B Account Management Sales and Service
Classroom
Leader's
Overheads
Tool Kit
Program 8C Proactive Sales and Service
Classroom
Handouts
Leader's
Overheads
Tool Kit
Wall Charts
Program 8D Responsive Sales and Service
Classroom
Handouts
Leader's
Overheads
Tool Kit
Program 8E Responsive Customer Service
Classroom
Program 8F Meeting Client Needs
Classroom
Handouts
Leader's
Overheads
Program 8G Leading Market Management
Leading Market Management
Handouts
Leading Words
Sales Management Assessment Survey
Sales Management Assessment Survey
Program 9 Strategic Selling
Program 9A Coaching Sales Performance
Overview
Participant
Pre-session
Program 9B Making Effective Presentations
Overview
Participant
Pre-session
Program 9C Strategic Prospecting
Administrator
Manager's Prep Packet
Participant
Preparation Packet
Telephone Script
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Sales and Sales Management Modules
Coaches Tool Kit
Implementation Guide
Handouts
Mac-Imp
Transparencies
Users Guide
Sales and Service Skills for Office Assistants
Facilitator Materials
Participant Tool Kit
Small Business Banking
Admin Guide
Handouts
Overheads
Wall Charts
Art of Telecontact
Coach's Tool Kit
Tool Kit
Winning Referrals
Coach's Tool Kit
Participant's Tool Kit
Videos
Managing Retail Business
Building Retail Business
Building Commercial Business
Maturing the Relationship-Commercial
Making Joint Calls
Negotiating with Clients
Enhancing Client Relationships
EnAct-Step by Step
Tom Brown
Market Competence
MDSM
Real People Speak Out
Delivering on the Promise
CD's
The Art of TeleContact with Participant's Tool Kit
Winning Referrals with Participant's Tool Kit
Profiling for Success with Participant's Tool Kit & Coaches Tool Kit
1+1
Executive Constancy
Putting the R Back in CRM
Delivering on the Promise
MLM-Franchise at Risk
The Organizational Impact of Managing Local Markets
Quarterly review
Value Assessment
Tom Carnes Article
"Quick Study: PDQ Printing" article
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"How To Be Right 95% of The Time" article
Decision Document (Wells)
MLM Coaches Facilitator Guide
MLM Market Guide
MLM Launch Kit (or Guide)
Mini Tool Kit-Bancomer
Team Leader's Tool Kit-Westpac
MLM Organizational Alignment Tool Kit
MLM Technology Transfer Candidate Guide-Standard Bank
Core Issues
Business Banking Sales Training Participant Text (NRMA)
EnAct Manager's Tool Kit In-Store (SunTrust)
EnAct Manager's Tool Kit Non In-Store (Sun Trust)
EnAct Market Plan Presentation Tool Kit In-Store (Sun Trust)
EnAct Performance Banking Playbook (Sun Trust)
EnAct Performance Banking Wall Charts (SunTrust)
EnAct Playbooks In-Store (Sun Trust)
EnAct Coaches Tool Kit In-Store (Sun Trust)
EnAct Regional President's Tool Kit (Sun Trust)
Managing Tactical Performance Coaches Tool Kit (Sun Trust)
Managing Tactical Performance Playbook (F&M)
Managing Tactical Performance District Manager's Tool Kit (F&M)
Managing Tactical Performance Tool Kit (F&M)
Facilitator Certification Process Candidate Guide (Wells)
Market President and Market Area Manager's Tool Kit Store Manager's Tool
Kit (Wells) District Manager's Tool Kit (Wells)
EnAct Integration Tool Kit (Wells)
Sales Management Process Participant Manual (FCC, Fidelity Investments)
Sales Process Training Participant Manual (FCC)
Sales and Service Training for Office Assistants Participant Tool Kit (FCC)
Sales and Service Training for Office Assistants Facilitator Guide (FCC)
EnAct Quarterly Market Plan Presentation Guides (F&M)
MLM Management Guide (Firstar)
MLM Special Session Overview Booklet (Firstar)
MLM Special Session Overview Sample Data Kit Meeting Client Needs Tool
Kit (Firstar)
Meeting Client Needs Classroom Guide (Firstar)
Market Driven Sales Tool Kit (Firstar)
Market Driven Sales Classroom Guide (Firstar)
MLM Management Guide (Firstar)
MLM Integrated Market Plan (Firstar)
MLM Branch Guides (Firstar)
MLM Subscriber Services (sold to Standard Bank)
MLM Refresher-Year 3 and Beyond Participant Text
MLM Communication Tools
MLM for Telephone Call Centers Participant Text
MLM for In-Store Branches Participant Text
MLM for Smaller Units/Satellites
REAC Card Game
Facilitator's Certification MLM Refresher-Year 2
MLM Refresher-Year 3 and Beyond Facilitator Guide
MLM for Telephone Call Centers Implementation Guidelines
Facilitator Guide
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MLM for In-Store Branches Implementation Guidelines Facilitator
Guide
Internal Documents
MLM Executive Constancy Tool Kit
Handouts
Sun Trust
Wells
ExTraCo
Farm Credit
Farmers and Mechanics
Fidelity Investments
Firstar
Summit
Support Documents
Equity Tactic
Oarpt.1-20-00. OA Report
Wells at Work
Sarah Morgan Sylvester VA
SPRA Cover Letter
SPRA Branch Manager
SPRA Marketing Data Manager
SPRA Marketing Manager
SPRA Retail Banking Executive
SPRA Bank Chief Executive Officer
WA Value Assessment Meeting Agenda
Best Practices
Bank Leumi Le
BankWest VA Final
Business Consulting Cost Estimate Worksheet
Integration Meetings with Critical Questions
Resource Allocation
Tactic_bp
VA 6.23.00
VA letter 2
Valueassessment
ValueAssessMtgAgendas
Wells Fargo Minimums
WF planning action items 2_19_2000
Business Consultant Facilitator
Criteria of Measurements for Success
Customer Value draft for Wells Napa rev
EnAct 30 Technical Requirements
EnAct Circle details ver JC
EnAct data fields example one year old
F&M article_long version
Facilitator Candidate
How to present the license pricing
Job descriptions.short
Old results
Process overview
Results report FINAL
Sales Service Delivery
Sr Business Consultant 031501
Subset of overview Chicago
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SunTrust second installation phase
SunTrusts opportunity cost of waiting
Westpac Business Case 6-17-99 Liddy
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SCHEDULE 3
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EQUIPMENT
ENACT DEVELOPMENT, MAINTENANCE AND SUPPORT EQUIPMENT
1- Dell PowerEdge 6100/200
1- Sun Enterprise 250 Server w/Monitor & Keyboard
14- Dell XPS R400 PCs
3- PCs (Unknown Type)
1- Compaq Monitor V500
1- Viewsonic Monitor P810
1- Compaq 35/70 GB DLT
1- HP 5Si Printer
1- Nokia VPN-1 Appliance - Firewall
1- Nortel/Bay Accelar 1100R-B Switch
1- Cisco 2600 Router
9-Dell Monitors
1- Compaq Rack (w/shelves)
1- Dell PowerVault 205
1- Box Marked w/Misc. Items
12- Boxes Marked- Judith Semper
10- Dell Keyboards
1- Box w/power supplies & floppies
8- Boxes Marked - Telephone System
3- Boxes w/Cables & Books
2- Black Server Racks
2- Battery UPS Units (1 - APC & 1-Matrix 5000)
12- Pairs of Altec PC Speakers
1 - Dell PowerEdge 1300 (dalinfo1)
1 - IBM Infinity 500 (devbase1)
ENACT PRODUCTION EQUIPMENT FOR TRAINING MATERIALS
1 HP Laser Jet 8000N Printer
1 Box of toner for HP Laser Jet 8000N Printer
1 HP Scan Jet ADF Scanner
1 Tektronix Phaser 850
1 box of Black Wax for Tektronix Phaser 850
1 box of Magenta Wax for Tektronix Phaser 850
1 box of Cyan Wax for Tektronix Phaser 850
1 box of Yellow Wax for Tektronix Phaser 850
2 Dell Optiplex GX 110 Computers
2 Dell Monitors
2 Dell Keyboards
2 Mouse
1 GBC Model Magna Punch w/two hole punch cartridges
1 GBC Model 110EB-2 Comb inserter
1 GBC Modular Series CC2700 Coil inserter
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1 Crystal-Vision Series 3000S Shrink Wrap System
1 Franklin Electric Paper Drill Model JO
2 APC Battery Back-UPS
6 HON Filing Cabinets
1 Licenses of Adobe Page Maker 5.0
1 Licenses of Adobe Page Maker 6.5
5 Licenses of Page Maker 6.5
1 Licenses of Page Maker 6.0
7 Licenses of Adobe PhotoShop LE
1 Licenses of Adobe PhotoShop Upgrade 4.0
1 Licenses of Adobe PhotoShop 5.5
1 Macromedia Fireworks 2
1 Adobe Acrobat 3.0
1 Adobe Acrobat Reader
1 Win-NT 4.0 Workstation
1 Freehand Accessory
1 Freehand 7
1 Freehand 5
- All boxes of Courseware & Training materials in Dallas Materials Control
(MC) center