EXHIBIT 99.5
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WAVE SYSTEMS
CO-MARKETING AGREEMENT
This Co-Marketing Agreement (the "Agreement") is between Wave Systems with its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇ ▇▇▇▇▇. ("Wave
Systems") and MAXIMUS, INC ("PARTNER.") with its principal place of business at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The effective date of
this Agreement May 14, 2001 ("Effective Date").
1. Objective of Appointment. The purpose of this Agreement is to facilitate
MAXIMUS and Wave Systems working together to identify and close joint
business opportunities via both Parties co-marketing of the other Party's
products and services.
2. Appointment. Wave Systems hereby appoints MAXIMUS as a co-marketing
partner. This appointment is non-exclusive and allows MAXIMUS to market
Wave Systems EMBASSY Products in the Territory as defined below in
accordance with this Agreement.
I. DEFINITIONS
1.1 "CONFIDENTIAL INFORMATION" shall mean all nonpublic information of either
Party, whether in human or machine readable form, concerning marketing
plans, financial data, future products, the design and composition of
Products, the concepts underlying the technology embodied in the Products,
all patent applications for unissued patents, including all drafts and all
portions thereof and excerpts therefrom, and information designated in
writing or disclosed as such orally and confirmed in writing within 10
days of oral disclosure as Confidential Information.
1.2 "END USER" shall mean any person or entity who licenses or purchases
copies of the Product from Wave Systems.
1.3 "PRODUCT" OR "PRODUCTS" shall mean: the computer hardware (including
integrated circuits), software, and services (designated for access only)
identified in Exhibit A hereto. Software shall be provided in object code
form only. Products also include the media on which the software is
provided to MAXIMUS; and the user guides and manuals, if any, for use of
the software and hardware ("Documentation"); and Updates.
1.4 "SERVICES" shall mean: the services provided by MAXIMUS through
consulting, integration, application development, or other related
business activities.
1.5 "OWNING PARTY" shall mean: the Party providing products to the other
Marketing Partner for demonstration and marketing purposes.
1.6 "USING PARTY" shall man: the Party receiving products from the other
Marketing Partner for demonstration and marketing purposes.
1.7 "TERRITORY" shall mean the United States and any other countries agreed to
in writing by Wave Systems.
1.8 "UPDATE(S)" shall mean subsequent releases of the Products which are
generally made available by Wave Systems under maintenance and support.
II. JOINT MARKETING & SALES ACTIVITIES
2.1 JOINT MARKETING ACTIVITIES
Each of the Parties agrees to use all commercially reasonable efforts to
market the others Products and Services to End Users, where said Products
and Services meet End User Needs via the activities listed in Exhibit A.
2.2 MARKETING EXPENSES
In the absence of an agreement to the contrary, each Party shall bear its
own costs and expenses in performing joint sales and marketing activities.
2.3 PUBLICITY
All press releases, publicity, marketing or sales materials, or other
materials developed by or on behalf of either Party under this Agreement,
shall be subject to prior review and written approval by an executive of
the other Party.
2.4 MARKETING PRACTICES
In marketing each other Products and Services, both Parties agree (i) not
to engage in any deceptive, misleading, illegal, or unethical practices
that may be detrimental to the other Party its Product or Services; (ii)
not to make any representations, warranties, or guarantees to End Users,
on behalf of the other Party or otherwise, concerning the Products or
Services that are inconsistent with or in addition to those made in this
Agreement or by the Owning Party; and (iii) to comply with all applicable
federal, state, and local laws and regulations in performing its duties
with respect to the Products and Services.
III. TERM AND TERMINATION
3.1 TERM
This Agreement shall become effective on the Effective Date and shall be
valid for one (1) year (the "Term) from the Effective Date unless
terminated earlier as set forth herein. Upon Mutual Agreement between the
Parties, this Agreement may be renewed for additional one (1) year
periods.
3.2 TERMINATION
Either Party may terminate this Agreement upon
a) written notice if the other Party breaches this Agreement and fails
to correct the breach within 30 days following receipt of written
notice specifying the breach; or
b) ninety (90) days prior written notice.
3.3 EFFECT OF TERMINATION
Termination of this Agreement or any license shall not limit either Party
from pursuing any other remedies available to it, including injunctive
relief. The Parties' rights and obligations under 2.2-2.4, and Articles
IV, V and Exhibit B shall survive termination of this Agreement.
3.4 HANDLING OF PRODUCTS UPON TERMINATION
If a license granted under this Agreement expires or otherwise terminates,
each Party shall (a) cease using the applicable Products, and (b) certify
to the other Party within one month after expiration or termination that
they have destroyed or returned the Products and all copies. This
requirement applies to copies in all forms, partial and complete, in all
types of media and computer memory, and whether or not modified or merged
into other materials.
IV. GENERAL TERMS
4.1 NONDISCLOSURE
Neither Party shall without first obtaining the written consent of the
other Party disclose the terms and conditions of this Agreement. Neither
Party shall not disclose information about the Products or Services,
except as may be required to implement the terms of this Agreement, or as
may be required by legal procedures or by law. Information exchanged
between the Parties shall not be deemed to be confidential except for
Confidential Information as defined herein and other information which the
Parties agree in writing to keep confidential. Neither Party shall
disclose the results of benchmark tests or other evaluations of the
Products to any third Party without the owning Parties written approval.
4.2 GOVERNING LAW & JURISDICTION
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the laws of the State of California,
without regard to the conflict of law principles or regard to the United
Nations Convention on Contracts for the International Sale of Goods, and
shall be deemed to be executed in San Jose, California.
Any legal action or proceeding relating to this Agreement shall be
instituted in any state or federal court in San Jose, California. Wave
Systems and MAXIMUS agree to submit to the jurisdiction of, and agree that
venue is proper in, the aforesaid courts in any such legal action or
proceeding involving the interpretation or enforcement of this Agreement.
4.3 NOTICE
All notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be sent to the Party to receive
the notice via certified mail, return receipt requested, or personal
delivery (including overnight mail by private carrier) to the address
listed above for the Party to receive the message, or at such other
address as is specified in the foregoing manner by the Party to receive
the Notice. Such notices shall be effective upon receipt.
4.4 SEVERABILITY
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in
full force.
4.5 WAIVER
The waive by either Party or any default or breach of this Agreement shall
not constitute a waiver of any other or subsequent default or breach.
Except for actions for nonpayment or breach of Wave Systems' propriety
rights in the Products, no action, regardless of form, arising out of this
Agreement may be brought by either Party more than one year after the
cause of action ha accrued.
4.6 ASSIGNMENT
Neither Party may assign or otherwise transfer any rights or obligations
under this Agreement without the other Party's prior written consent,
which shall not be unreasonably withheld, and any such attempt to do so
shall be void.
4.7 EXPORT ADMINISTRATION
MAXIMUS agrees to comply fully with all relevant export laws and
regulations of the United States ("Export Laws") to assure that neither
the Products nor any direct product thereof are (a) exported, directly or
indirectly, in violation of Export Laws; or (b) are intended to be used
for any purposes prohibited by the Export Laws, including, without
limitation, nuclear, chemical, or biological weapons proliferation.
4.8 RELATIONSHIP BETWEEN THE PARTIES
In all matters relating to this Agreement, both Parties will act as an
independent commercial entities. Nothing in the Agreement shall be
construed to create a partnership, joint venture or agency relationship
between the Parties. Neither Party will represent that it has an authority
to assume or create any obligation, express or implied, on behalf of the
other Party, nor to represent the other Party as an agent, employee,
franchisee, or in any other capacity.
4.9 ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the Parties and
supersedes all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in writing signed by a
duly authorized representative of each Party; no other act, docment, usage
or custom shall be deemed to amend or modify this Agreement.
V. LIABILITY
EXCEPT FOR VIOLATIONS OF WAVE SYSTEMS' INTELLECTUAL OR CONFIDENTIAL
INFORMATION, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE,
DATA OR USE INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN
ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY SUCH PERSON HAS
BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. WAVE SYSTEMS' LIABILITY
FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY
MAXIMUS UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM MAXIMUS' USE
OF THE PRODUCTS OR SERVICES, SUCH LIABILITY SHALL BE LIMITED TO FEES PAID
FOR THE RELEVANT PRODUCT OR SERVICE GIVING RISE TO THE LIABILITY.
THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN WAVE SYSTEMS AND
MAXIMUS. SIGNATURE BY THE PARTIES SIGNIFY THEIR AGREEMENT WITH THE BASIC
AGREEMENT AS WELL AS EXHIBIT A AND EXHIBT B ATTACHED HERETO.
EXECUTED BY WAVE SYSTEMS CORP.:
Authorized Signature: ____________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President -Product Operations, Marketing & Services
Date: __________________________________________
EXECUTED BY MAXIMUS: ___________________________
Authorized Signature: __________________________
Name: __________________________________________
Title: _________________________________________
Date: __________________________________________
EXHIBIT A
CO-MARKETING ACTIVITIES AND AGREEMENTS
1. JOINT MARKETING ACTIVITIES
The Parties will cooperate in the joint marketing activities agreed to
below as well as any others agreed to by the Parties from time to time
i. Advertising in a variety of publications;
ii. Public relations activities;
iii. Distribution of promotional MAXIMUS and Wave Systems literature to
prospects;
iv. Additional press activities agreed to by the Parties from time to
time;
v. Joint sales activities including sales calls, referenced selling,
lead referrals, direct marketing literature, cross promotions and
training and sales seminars.
2. WAVE SYSTEMS WILL:
i. Provide MAXIMUS with "Most Favored Customer" pricing on the
following.
a. Applets Developer Kit for EMBASSY (ADK)
b. EMBASSY integrated circuits in any platform that has it
embedded on.
c. Reasonable access (as determined by Wave Systems) to EMBASSY
Trust Assurance Network (TAN)
d. EMBASSY Operating Systems
e. Hardware Development Kit (HDK)
f. Reasonable access (as determined by Wave Systems) to Wave
Systems Net Commerce Engine
ii. Place a link to the MAXIMUS web page on the Wave Systems web page.
iii. Provide Systems Partner Training at no charge to MAXIMUS employees
(at Wave Systems' Training Facility). MAXIMUS shall be solely
responsible for all travel and living expenses for its employees who
attend such training.
iv. Provide MAXIMUS with Wave Systems marketing materials
v. Provide MAXIMUS with invitations to display at Wave Systems booths
at tradeshows, when such booths are available.
3. MAXIMUS WILL:
i. Provide Wave systems with application (TBD) for demonstration
purposes
ii. Place a link to the Wave Systems web page on the MAXIMUS web page
iii. Provide invitations to MAXIMUS Smart Card Training/Seminars at no
charge to Wave Systems employees (at MAXIMUS training facility).
Wave Systems shall be solely responsible for all travel and living
expenses for its employees who attend such training.
iv. Provide Wave Systems with MAXIMUS marketing materials
v. Provide Wave Systems with invitations to display at MAXIMUS booths
at tradeshows, when such booths are available.
EXHIBIT B
PRODUCT LICENSE, INDEMNITY AND WARRANTIES
1.1 MARKETING LICENSE
Each Party grants the other a non-exclusive, nontransferable license to
use the its Products identified in Exhibit A as follows:
i. to use the Products solely for demonstration and internal training
of personnel to promote the sale of each other products and services
to End Users.
ii. To use the Documentation provided with the Products in support of
authorized uses of the Products as defined in this agreement; and
iii. To use the software Products in accordance with the terms and
conditions of the user license provided with such software.
1.2 LIMITATIONS ON USE
Neither Party shall duplicate the Products (including the Documentation)
or use them for any purpose not authorized hereunder. Neither Party shall
(a) use the products for its internal use in data processing or otherwise;
(b) rent, distribute, lease or timeshare the Products or market the
products by interactive cable or remote processing services, or otherwise,
than as specified in this Agreement; (c) cause or permit the reverse
engineering, disassembly, or decompilation of the Products; (d)
manufacture or create any parts or hardware or software components or
documentation incorporating Confidential Information for its own use for
other use of a third Party unless expressly released by the owning Party
in writing. Further, the Parties agree not to use the other Party's
Confidential Information for any purpose other than the purposes
authorized under this Agreement.
1.3 TITLE
Each Party shall retain all title, copyright, trade secret, patent,
trademark and other proprietary rights in its Products and all
modifications, enhancements, and other works derived of those products.
Neither Party shall acquire any rights, express or implied, in the others
Products, other than those specified in this Agreement.
1.4 INFRINGEMENT INDEMNITY
The Parties will defend and indemnity each other against any claim that
their respective Products furnished and used within the scope of this
Agreement infringe a United States copyright or patent provided that: a)
the marketing Party notifies the owning Party in writing within fifteen
(15) days of the claim; (b) the owning Party has sole control of the
defense and all related settlement negotiations; and (c) the using Party
provides the owning Party with the assistance, information and authority
necessary to perform it's obligations under this section. Reasonable
out-of-pocket expenses incurred by providing such assistance will be
reimbursed by owning Party.
Neither Party shall have any liability for any claim of infringement based
on: (a) use of a superseded or altered release of Products if the
infringement would have been avoided by the use of a current unaltered
release of the Products provided; or (b) the combination, operation or use
of any Products furnished under this Agreement with software, hardware or
other materials not furnished by owning Party if such infringement would
have been avoided by the use of the products without such software,
hardware other materials.
In the event the Products are held to be, or are believed, by the owning
Party to infringe, the owning Party shall have the option, at its expense,
to (a) modify the products to be non infringing, (b) obtain for the using
Party a license to continue using the products; or (c) terminate the
license for the infringing products and refund the license fees paid for
those products, prorated over a five year term from the Commencement Date.
This Paragraph 1.4 states the owning Parties entire liability and using
Parties exclusive remedy for infringement or any intellectual property
warranty.
1.5 WARRANTIES
THE PRODUCTS AND SERVICES SUPPLIED BY BOTH PARTIES HEREUNDER ARE PROVIDED
"AS IS" AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
NEITHER PARTY WARRANTS THAT THE PRODUCTS WILL RUN PROPERLY ON OR WITH ALL
SYSTEMS, THAT THE PRODUCTS MEET THE OTHER PARTY'S REQUIREMENTS, THAT THE
PRODUCTS WILL OPERATE IN THE COMBINATIONS WHICH THE OTHER PARTY MAY SELECT
FOR USE, THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR
ERROR-FREE, OR THAT ALL PRODUCT ERRORS WILL BE CORRECTED.