EXHIBIT 10.11
VERIFONE VERISMART APPLICATION DEVELOPER'S KIT
LICENSE AGREEMENT
This VeriFone VeriSmart Application Developer's Kit License Agreement
(this "Agreement") is made and entered into between VeriFone, Inc., a Delaware
corporation ("VeriFone"), and Precis Smart Card Systems, Inc. an Oklahoma
corporation ("Licensee"), as of January 27, 1999 (the "Effective Date").
VeriFone and Licensee hereby agree as follows:
1. Definitions.
1.1. CLASS LIBRARIES means machine executable, non-human-readable form
of the VeriFone Software designated as "Class Libraries" on EXHIBIT A attached
hereto.
1.2. CONFIDENTIAL INFORMATION means any and all information related to
a party that such party treats as confidential and any information relating to
third parties that such party has an obligation to treat as confidential, which
is disclosed by such party to the other party in the course of performing the
duties and obligations of this Agreement, whether such information is in oral,
written, graphic or electronic form; provided that (1) if such information is in
writing or other tangible form, it is clearly marked as "proprietary" or
"confidential" when disclosed to the receiving party; or (2) if such information
is not in tangible form, it (i) is identified as "proprietary" or "confidential"
when disclosed and (ii) is summarized in a writing which is marked "proprietary"
or "confidential" and is delivered to the receiving party within thirty (30)
days after the date of disclosure. Confidential Information shall not include
any information, data or material which: (a) the disclosing party expressly
agrees in writing is free of any non-disclosure obligations; (b) is
independently developed by the receiving party (as evidenced by documentation in
the receiving party's possession); (c) is lawfully received by the receiving
party, free of any non-disclosure obligations, from a third party having the
right to so furnish such Confidential Information; or (d) is or becomes
generally available to the public without any breach of this Agreement or
unauthorized disclosure of such Confidential Information by the receiving party.
1.3. END USER means (i) a third party licensed by VeriFone or a
VeriFone-authorized distributor to use or provide access to a VeriSmart system
production server and/or (ii) customers of such third party using a
VeriSmart-compatible terminal device to access such VeriSmart system;
1.4. ENHANCEMENTS means the Java Byte Code (machine executable) and/or
Java Source Code versions, as solely determined by VeriFone, of the VeriFone
Software and all supporting documentation that have been customized, enhanced or
otherwise modified by VeriFone acting in its sole discretion to include
additional functionality and that have been commercially released to VeriFone's
other licensees of the VeriFone Software; typically requiring an additional
license charge.
1.5. JAVA BYTE CODE means the non human readable, binary form of the
VeriFone Software which can be executed on a computer processor.
1.6. MEDIA means the 3 1/2-inch diskette, the CD-ROM, or the other
media on which the VeriFone Software is encoded.
1.7. PROGRAM ERROR means a reproducible defect or combination of
defects in the Class Libraries or the VeriSmart Development Server Software that
results in a failure of such software to function substantially in accordance
with the VeriFone User Documentation when used in accordance with VeriFone's
instructions and on the hardware platforms and operating systems specified by
VeriFone to be compatible with such software. Program Errors do not include any
errors (i) created or introduced by Licensee when reproducing the Class
Libraries, (ii) caused by the negligence of Licensee, any of its subdistributors
or any End User, (iii) occurring in Class Libraries or the VeriSmart Development
Server Software modified or altered by persons other than VeriFone or VeriFone's
authorized subcontractors or agents, (iv) occurring due
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to data that does not conform to VeriFone's specified data format, (v) occurring
upon use of the Class Libraries or the VeriSmart Development Server Software on
any system other than the hardware platforms or operating systems specified by
VeriFone to be compatible with the Class Libraries or (vi) resulting from
operator error, accident or misuse.
1.8. SAMPLE APPLICATIONS means that subset of the Java Source Code
designated on EXHIBIT A attached hereto as "samples of applications developed
using the VeriSmart Application Developer's Kit."
1.9. JAVA SOURCE CODE means the human-readable, Java-programming
version of the VeriFone Software which cannot be executed on a computer
processor without compilation or other conversion into a binary language.
1.10. THIRD-PARTY SOFTWARE means the Java Byte Code (machine
executable) versions of the software licensed by third-parties to VeriFone for
distribution with the VeriFone Software, including, as of the Effective Date:
means the Java Byte Code form of Java Runtime Environment supplied to VeriFone
from Sun Microsystems, Inc. and the Java Byte Code form of software supplied to
VeriFone from Certicom. VeriFone, in its sole discretion, may change the
Third-Party Software from time to time.
1.11. UPDATES means the Java Byte Code (machine executable) and/or the
Java Source Code versions, as solely determined by VeriFone, of the VeriFone
Software, and all supporting documentation, that have been developed by VeriFone
to correct any Program Error in the VeriFone Software and have been commercially
released, at no additional charge, to VeriFone's other licensees of the VeriFone
Software.
1.12. VERIFONE SOFTWARE means all of the software included in the
VeriSmart Application Developer's Kit and VeriSmart Development Server Software
as set forth on, and in the form set forth on Exhibit A attached hereto and, if
any, the Updates and Enhancements delivered by VeriFone to Licensee pursuant to
the terms of this Agreement, provided that VeriFone Software shall not include
any Third-Party Software or VeriSmart Applications.
1.13. VERIFONE TRADEMARKS means the following VeriFone trademarks,
service marks and logos: "VeriFone"(name and logo) and "VeriSmart".
1.14. VERIFONE USER DOCUMENTATION means the End User guides for the
VeriFone Software set forth on Exhibit A attached hereto.
1.15. VERISMART APPLICATION DEVELOPER'S KIT means those items set forth
on EXHIBIT A attached hereto, which include the Class Libraries, Sample
Applications and Application Developer's Tools. Unless otherwise indicated
thereon, all software specified on Exhibit A attached hereto shall be in machine
executable non-human-readable binary form.
1.16. VERISMART APPLICATIONS means software application products that
are (i) developed by Licensee, (ii) contain Class Libraries or are otherwise
developed with the use of or reference to all or any portion of the VeriSmart
Application Developer's Kit, (iii) are compatible and interoperable with
VeriSmart systems, and (iv) not to be designed as development tools or other
application products intended for use in connection with the development of
additional products.
1.17. VERISMART DEVELOPMENT SERVER SOFTWARE means the Java Byte Code
form of the VeriFone software that consists of the following components: the
server platform, which manages appliance connections, launches applets for those
connections and supports reporting and monitoring; card scheme class libraries,
which support the use of particular smart card operating systems; appliance
class libraries, which support the input/output capabilities of particular
appliances; and host protocol class libraries, which support access to financial
service hosts; which operates on an Intel-based Pentium Pro system running
Windows NT.
2. Delivery, Ownership and Licenses.
2.1. Delivery. VeriFone shall deliver to Licensee one (1) copy of the
VeriFone Software within seven (7) days after the Effective Date.
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2.2. Ownership. VeriFone shall retain ownership of the Confidential
Information of VeriFone, the VeriFone Software, including, without limitation,
Class Libraries incorporated into any VeriSmart Application, the VeriFone User
Documentation and the VeriFone Trademarks, and all intellectual property rights
therein. Licensee shall, and shall cause all of its subdistributors to, use
reasonable efforts to preserve such VeriFone rights and shall not do anything to
contest or impair the intellectual property rights of VeriFone. Licensee shall
own the Confidential Information of Licensee, the VeriSmart Applications
(excluding any VeriFone Software incorporated therein) and all intellectual
property rights therein.
2.3. Internal Use. Subject to the terms and conditions of this
Agreement and payment of amounts due pursuant to Section 5.1, VeriFone grants to
Licensee a non-exclusive, non-transferable license to (i) use and reproduce the
VeriFone Software and the VeriFone User Documentation solely for the purposes of
developing VeriSmart Applications and providing technical support to End Users
who have been licensed to use VeriSmart Applications and (ii) use VeriSmart
Applications containing the Class Libraries solely for Licensee's internal
business purposes. Licensee shall use the VeriFone Software pursuant to this
Section 2.3 in accordance with VeriFone's written instructions and only on no
more than ten (10) workstations located within Licensee's facilities at the
address set forth below the signature blocks of this Agreement.
2.4. Sublicensing and Distribution of VeriSmart Applications. Subject
to the terms and conditions of this Agreement and payment of amounts due
pursuant to Section 5.1, VeriFone grants to Licensee a non-exclusive,
non-transferable license to reproduce, have reproduced, demonstrate and
distribute by sublicense, directly or through subdistributors appointed in
accordance with Section 2.7, to End Users for use by such End Users the Class
Libraries solely when embedded within a VeriSmart Application. Licensee shall
distribute the Class Libraries only pursuant to a valid and binding End User
agreement pursuant to Section 2.8. Licensee shall not (i) distribute the
VeriFone Software or any component thereof by mail order, rental or lease, (ii)
distribute or use the VeriFone Software or any component thereof in connection
with any service bureau, or (iii) except with respect to Licensee's distribution
of the Class Libraries or Sample Applications (as defined in Section 2.5) solely
when embedded within VeriSmart Applications provided to End Users pursuant to
Section 2.8 or subdistributors pursuant to Section 2.7, distribute the VeriFone
Software or any component thereof to other resellers, dealers, distributors or
any other third parties.
2.5. Java Source Code. Subject to the terms and conditions of this
Agreement and payment of amounts due pursuant to Section 5.1, VeriFone grants to
Licensee a non-exclusive and non-transferable license to (i) use and reproduce,
solely to create VeriSmart Applications, the Java Source Code of any VeriFone
Software designated by VeriFone as part of the VeriSmart Application Developer's
Kit as set forth on Exhibit A attached hereto and (ii) modify, solely to create
VeriSmart Applications, and distribute Sample Applications (as provided by
VeriFone and/or as modified by Licensee pursuant to this Agreement) solely in
Java Byte Code (machine executable) form when embedded within a VeriSmart
Application. VeriFone Software Java Source Code shall be accessed solely by
Licensee's employees on a strict "need-to- know" basis, and such Java Source
Code shall, anything to the contrary set forth herein notwithstanding, be deemed
to be "Confidential Information" of VeriFone subject to the confidentiality
provisions of this Agreement. Licensee shall not distribute or provide the Java
Source Code of any VeriFone Software to any reseller, dealer, distributor, End
User or any other third party.
2.6. VeriFone Trademarks. Subject to the terms and conditions of this
Agreement, VeriFone grants to Licensee a non-exclusive, limited license to use
the VeriFone Trademarks on, and Licensee agrees to use the VeriFone Trademarks
on, Licensee's packaging for the VeriSmart Applications and in all
advertisements and printed materials for the VeriSmart Applications. Licensee
shall display notices of trademark status (i.e., -R- or -TM- as prescribed by
VeriFone from time to time) adjacent to each use of the VeriFone Trademarks on
each piece of advertising or printed materials in which such VeriFone Trademark
appears. Licensee shall also include as a footnote to the VeriFone Trademarks
along with the first or most prominent use of each VeriFone Trademark in each
piece of advertising or printed materials in which such VeriFone Trademark
appear: "[▇▇▇▇] is a trademark of VeriFone, Inc., which may be registered in
certain jurisdictions," and such other symbols and notices as may be prescribed
by VeriFone from time to time. Licensee acknowledges that all uses of the
VeriFone Trademarks by Licensee shall inure to the benefit of and be on behalf
of VeriFone. Licensee further acknowledges that the VeriFone Trademarks are
valid under applicable law and that Licensee's utilization of the VeriFone
Trademarks will not create any right, title or interest in or to such
trademarks.
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2.7. Subdistributors. Subject to the terms and conditions of this
Agreement, Licensee will be entitled to grant to its subdistributors the right
to distribute copies of the Class Libraries by sublicense directly to End Users
for use by such End Users solely when embedded within a VeriSmart Application.
Prior to the distribution of any VeriSmart Application to a subdistributor,
Licensee must enter into an enforceable written agreement with such
subdistributor that (a) contains terms no less restrictive than those terms set
forth in Sections 2.4 ("Sublicensing and Distribution of VeriSmart
Applications"), 2.8 ("End User Agreements"), 3 ("Restrictions and Limitations"),
5.2 ("Records and Audits"), 7 ("Confidentiality"), 10 ("Term and Termination"),
and 11.2 ("Export Control") herein, (b) contains covenants and restrictions as
applicable to such subdistributor, to enable Licensee to fulfill its
requirements under Sections 2.2 ("Ownership"), 2.9 ("Enforcement"), 4.1
("Support to End Users"), 5 ("Fees, Payments, Reports and Audits"), 7
("Confidentiality"), 10.4 ("Effect of Termination"), and 11.2 ("Export Control")
herein, (c) contains a disclaimer of any and all warranties by VeriFone and its
suppliers and a disclaimer of any and all liabilities of VeriFone and its
suppliers; and (d) expressly names VeriFone and its suppliers as intended third
party beneficiaries with the right to rely on and directly enforce the terms
thereof.
2.8. End User Agreements. Prior to the delivery of any VeriSmart
Application to any End User, Licensee or its subdistributors must enter into an
enforceable written agreement with such End User that contains terms no less
restrictive than those terms set forth in Sections 3.3 ("General Limitations and
Restrictions") and 11.2 ("Export Control") herein, (b) contains a disclaimer of
any and all warranties by VeriFone and its suppliers and a disclaimer of any and
all liabilities of VeriFone and its suppliers; and (c) expressly names VeriFone
and its suppliers as intended third party beneficiaries with the right to rely
on and directly enforce the terms thereof.
2.9. Enforcement. Upon VeriFone's request, Licensee shall provide
VeriFone with a copy of each of Licensee's agreements with Licensee's
subdistributors of the VeriSmart Applications and a copy of the standard End
User agreement(s) used by Licensee or Licensee's subdistributors to sublicense
the VeriSmart Applications to End Users. Licensee shall use, and shall require
each subdistributor to use, the same degree of diligence which Licensee uses to
enforce similar agreements for its own products to enforce each subdistributor
agreement and each End User agreement used by Licensee or Licensee's
subdistributors to sublicense the VeriSmart Applications to End Users, but in no
event shall Licensee use less than commercially reasonable efforts. Licensee
shall notify VeriFone of any breach of a material obligation under any such
subdistribution agreement or End User agreement. Upon the termination or breach
of any subdistribution agreement or End User agreement, Licensee shall use all
reasonable efforts (including litigation) to ensure the return or destruction of
all copies of the VeriSmart Applications licensed pursuant to such agreement,
and all reproductions thereof. Licensee will cooperate with VeriFone in any
legal action to prevent or stop unauthorized use, reproduction, modification,
distribution or sublicensing of the VeriSmart Applications. Licensee shall
indemnify and hold VeriFone harmless against any loss resulting from Licensee's
failure to perform its duties under this Section 2.9.
2.10. Third-Party Software. VeriFone grants Licensee a sublicense to
use the Third Party Software solely as a part of and for the sole purpose of
using the VeriFone Software. As of the Effective Date, VeriFone represents that
all of the terms for Licensee's use of the VeriFone Software are set forth in
this Agreement. However, VeriFone reserves the right to include additional or
alternative third-party software in the VeriFone Software, which may require
Licensee to agree to additional terms in order to accept delivery of such other
software. In addition, some VeriFone suppliers have reserved the right to
require VeriFone and VeriFone's subdistributors to comply with new terms and
conditions in addition to those set forth in this Agreement. In either case,
Licensee may elect to terminate this Agreement by giving VeriFone written notice
within fifteen (15) days after receipt of VeriFone's proposed amendment to the
Agreement to incorporate such terms. Licensee shall obtain a license for Java
Development Kits, and any support and maintenance therefor, directly from Sun
Microsystems, Inc.
2.11. License to VeriSmart Applications. Upon the general commercial
release by Licensee of each VeriSmart Application, either on a standalone basis
or as incorporated into one or more other products, Licensee shall deliver to
VeriFone one (1) copy of such VeriSmart Application and related documentation.
Licensee hereby grants to VeriFone a non-exclusive, non-transferable license (a)
to use and reproduce such VeriSmart Application solely for the purposes of (i)
providing technical support to Licensee for VeriSmart Development Server
Software ordered hereunder, (ii) demonstrating such VeriSmart Application to
prospective End Users of VeriFone technology, (iii) testing such
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VeriSmart Application for compatibility with VeriFone's VeriSmart technology and
(iv) maintaining a library of VeriSmart technology-related software
applications; and (b) subject to the terms of a distribution agreement to be
negotiated in good faith by VeriFone and Licensee, to distribute such VeriSmart
Application; provided that the terms of such distribution agreement, including,
without limitation, amounts payable thereunder, shall be no less favorable to
VeriFone than to any other distributor of such VeriSmart Application.
3. Restrictions and Limitations.
3.1. Conveyance of License Only. This Agreement grants Licensee a
license only, and only such license rights as are specifically enumerated in
this Agreement. No other right, title or interest in the VeriFone Software or
any components thereof, VeriFone Trademarks or Confidential Information of
VeriFone is hereby conveyed to Licensee, provided that Licensee will own the 3
1/2-inch diskette, the CD-ROM, or the other media on which the VeriFone Software
is encoded (collectively, the "Media"). VeriFone may from time to time choose to
register its copyright interests in the VeriFone Software or any components
thereof, but such acts shall not cause or be construed as causing any part
thereof to become part of the public domain.
3.2. No Governmental Sublicensees. The license granted in Section 2.4
hereof notwithstanding, Licensee shall not distribute any VeriSmart Application
to any federal, state and/or municipal government, or any contractor therefor,
without VeriFone's prior written consent.
3.3. General Limitations and Restrictions. Except as expressly
authorized in this Agreement, Licensee shall not use or reproduce the VeriFone
Software or Third Party Software, or any portion thereof, without the express
prior written consent of VeriFone. Licensee shall not (i) except as expressly
authorized in this Agreement, adapt, alter, modify, translate or create
derivative works of the VeriFone Software or Third Party Software, (ii) reverse
compile, disassemble or otherwise attempt to reconstruct (a) the Third-Party
Software or (b) the Java Source Code for the VeriFone Software for which Java
Source Code is not provided to Licensee by VeriFone hereunder, (iii)
electronically transfer the VeriFone Software or Third Party Software from one
computer to another over a local- or wide-area network that is not password
protected or enable any timesharing of the VeriFone Software or Third Party
Software by any third party, (iv) assign, pledge, rent, lease or loan the
VeriFone Software or Third Party Software, (v) obfuscate, remove or alter any of
the trademarks, trade names, logos, patent or copyright notices, confidential or
proprietary legends or other notices or markings on or in the VeriFone Software
or Third Party Software, and all such markings shall be included in all copies
thereof made by Licensee (to the extent any copies are authorized), (vi) add, or
permit any third party to add, any markings, notices or legends to the VeriFone
Software without VeriFone's express written consent, (vii) without VeriFone's
prior written consent, publish or otherwise disclose to any third party the
results of any benchmark tests run on the VeriFone Software , (viii) use the
VeriFone Software or Third Party Software for any purpose not authorized in the
documentation provided by VeriFone for such VeriFone Software or Third-Party
Software, including, without limitation, the VeriFone User Documentation, or in
any manner designed to access the functionality of any portion of the VeriFone
Software or Third Party Software other than as permitted in the form delivered
to Licensee by VeriFone, (ix) create any VeriSmart Application or application
development tool that may be used by an End User to create other
VeriSmart-compatible applications or applications containing any component of
the VeriFone Software , or (x) permit any third party to perform any of the
foregoing prohibited activities. Licensee's use of the Third Party Software
shall also be subject to the restrictions specified in Exhibit C.
3.4. Trademark Restrictions. Licensee shall not use the trademark
"VeriFone," any ▇▇▇▇ beginning with the letters "Veri," or any other ▇▇▇▇ likely
to cause confusion with the trademark "VeriFone" as any portion of Licensee's
trade name, or any trademark or service ▇▇▇▇ for any products or services of
Licensee. Licensee shall use the VeriFone Trademarks solely to refer to the
VeriSmart Applications. Licensee shall not use any other trademark or service
▇▇▇▇ in close proximity to any of the VeriFone Trademarks or combine the marks
so as to effectively create a unitary composite ▇▇▇▇ without the prior written
approval of VeriFone.
3.5. Limitations and Restrictions on Use of VeriSmart Development
Server Software. If the VeriSmart Application Developer's Kit includes a copy of
the VeriSmart Development Server Software as set forth on Exhibit A attached
hereto, in addition to and subject to all other restrictions and limitations set
forth in this Section 3, Licensee may
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use the VeriSmart Development Server Software solely for the purposes enumerated
in Section 2.3, and Licensee shall not use the VeriSmart Development Server
Software in such a manner that (i) actual commercial transactions are effected
by means of the VeriSmart Development Server Software, (ii) any parties other
than Licensee may access the VeriSmart Development Server Software or (iii) any
parties, including Licensee, may access the VeriSmart Development Server
Software from outside of Licensee's facilities. Licensee acknowledges and agrees
that the provision of the VeriSmart Development Server Software pursuant to this
Agreement is solely for the purposes set forth in Section 2.3 and that any other
use by Licensee of VeriSmart Development Server Software shall be only pursuant
to a license agreement between VeriFone and Licensee expressly setting forth
licenses necessary for such use.
3.6. Marketing Practices. In marketing and distributing the VeriFone
Software as incorporated in the VeriSmart Applications, Licensee shall and shall
cause all subdistributors to: (i) not engage in any deceptive, misleading,
illegal or unethical practices; (ii) not make any representations, warranties or
guarantees concerning the VeriFone Software on behalf of VeriFone; (iii) require
all End Users to disclaim all liability of any kind on behalf of VeriFone; and
(iv) comply with all applicable laws and regulations.
4. Maintenance and Support.
4.1. Support to End Users. Unless otherwise agreed to in writing by
VeriFone, VeriFone shall not be responsible for supporting any End Users of the
VeriSmart Applications. Licensee shall ensure that it and/or its designee
(including subdistributors) support all End Users of the VeriSmart Applications,
including, at a minimum, answering and responding to telephone calls and email,
logging calls and messages, problem determination, providing known work-arounds
and solutions to problems, tracking problem resolution and providing technical
bulletins and other information to End Users. Licensee shall use reasonable
efforts to ensure all End Users contact Licensee and/or its designee directly
for support. If, notwithstanding such efforts, VeriFone is being contacted by a
significant number of End Users, Licensee and VeriFone will cooperate to develop
procedures and practices to minimize such contact.
4.2. Support to Licensee. VeriFone or its designee will provide
maintenance and support services for the VeriFone Software for each annual
period for which Licensee has paid the associated maintenance and support fees.
VeriFone will not provide any support to any subdistributor or any of Licensee's
or subdistributor's End Users.
4.2.1. Help Line. Licensee shall designate one of its
employees to be Licensee's primary contact regarding VeriFone's support of the
VeriFone Software ("Licensee Support Representative") and inform VeriFone of the
identity of such Licensee Support Representative and any changes thereto.
VeriFone will maintain a telephone help line that may be accessed by the
Licensee Support Representative to report Program Errors from Monday through
Friday (except on standard VeriFone holidays), during normal business hours
(9 a.m. - 5 p.m., Pacific Time) via telephone and electronic mail, at numbers
and addresses made known by VeriFone to Licensee on the Effective Date as may
be changed by VeriFone from time to time. Licensee shall ensure that the
Licensee Support Representative will attend or has attended any training
classes that VeriFone may from time to time offer in connection with the
VeriFone Software.
4.2.2. Program Errors - Class Libraries and VeriSmart
Development Server Software. Each Program Error related to use of the Class
Libraries and/or the VeriSmart Development Server Software that is reported by
Licensee via the help line must be accompanied or followed by sufficient
information to enable VeriFone to reproduce and verify the Program Error,
including but not limited to the input data that generated the Program Error.
Once VeriFone has received all such information, VeriFone will begin using
commercially reasonable efforts, consistent with the severity of the Program
Error, to reproduce and verify the Program Error and, if VeriFone is able to
reproduce and verify the Program Error, to remedy it. Remedies may include,
without limitation, providing instructions for Licensee to cure the Program
Error or delivering an Update. In no circumstances does VeriFone represent or
warrant that any or all Program Errors can or will be remedied. Licensee Support
Representative will use its best efforts to assist VeriFone in reproducing and
verifying all reported Program Errors and will be available to assist VeriFone
in remedying any Program Error.
4.2.3. Sample Applications, Application Development Tools
and VeriFone User Documentation. VeriFone shall use commercially reasonable
efforts to respond to Licensee's questions regarding use of the Sample
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Applications, Application Development Tools and VeriFone User Documentation that
is reported by Licensee via the help line at no additional charge to Licensee.
In no circumstances does VeriFone represent or warrant that any or all such
questions can or will be answered.
4.2.4. Enhancements and Updates. VeriFone may, from time to
time, release Enhancements or Updates. VeriFone will promptly notify Licensee
when an Enhancement or Update has been issued. Enhancements will be available in
accordance with VeriFone's standard charges therefor; there are no additional
charges for Updates. Following such notification by VeriFone, Licensee may send
a written request to VeriFone for such an Update or Enhancement (together with
payment of the standard charges therefor). Upon receipt of such request,
VeriFone will provide such Update or Enhancement to Licensee. Licensee shall use
commercially reasonable efforts to request and implement each Update and
Enhancement. If Licensee does not request and implement an Update or an
Enhancement, VeriFone's obligations to provide maintenance services pursuant to
Section 4.2.1 and 4.2.2 of this Agreement for the prior version of the subject
VeriFone Software shall terminate upon the expiration of a six (6) month period
after general public release of such Update or Enhancement. If Licensee requests
VeriFone to provide any assistance to install, certify or otherwise implement
any such Update or Enhancement and VeriFone provides such services, Licensee
shall pay VeriFone on a time and material basis in accordance with VeriFone's
then standard charges for such services and all reasonable expenses incurred by
VeriFone in connection with such services (airfare, lodging, meals and ground
transportation). Licensee acknowledges and agrees that VeriFone is under no
obligation to issue Updates or Enhancements under this Agreement and that the
obligation to provide any Updates or Enhancements applies only to those Updates
or Enhancements which have been commercially released by VeriFone to its other
users of the VeriFone Software.
5. Fees, Payments, Reports and Audits.
5.1. Fees. All payments made under this Agreement shall be in U.S.
currency. Licensee shall pay VeriFone fees as set forth in Exhibit B attached
hereto. Licensee shall be responsible for the payment of all such license fees
and royalties and such amounts shall not be subject to offset or reduction in
the event Licensee fails to receive such license fees or royalties from its
subdistributors or End Users.
5.2. Reports. Within thirty (30) days after the end of each quarter,
Licensee shall provide a written report to VeriFone stating the name, version
number and number of copies of VeriSmart Applications distributed to End Users
by Licensee and each subdistributor during such quarter; the maximum number of
user devices licensed to use each copy of the VeriSmart Applications, either
internally by Licensee or by other End Users during such quarter; each End
User's postal zip code location, city, country and date of shipment or
electronic transmission; and generally any other information that may be
required to determine whether Licensee is complying with this Agreement.
5.3. Records and Audit Rights. Licensee shall retain complete, clear
and accurate records regarding the distribution of the VeriSmart Applications.
VeriFone shall have the right to inspect and audit Licensee's facilities,
business practices and procedures, and relevant books and records conducted by
an independent audit professional selected and paid by VeriFone no more than
once every twelve (12) months during regular business hours at Licensee's
offices and in a manner that does not unreasonably interfere with Licensee's
normal business activities. If any audit discloses underpayments of five percent
(5%) or more of the amount actually due, Licensee shall bear all of the costs of
the audit. VeriFone's audit rights shall not terminate until three (3) years
after termination or expiration of this Agreement.
5.4. Taxes. In addition to any other payments due under this Agreement,
Licensee shall pay, indemnify and hold VeriFone harmless from, any sales, use,
excise, import or export, value-added or similar tax or duty not based on
VeriFone's net income, including any penalties and interest, as well as any
costs associated with the collection or withholding thereof, and all government
permit fees, license fees and customs and similar fees levied on the delivery of
any services or the VeriFone Software by VeriFone to Licensee. All payments due
under this Agreement shall be made without any deduction or withholding, unless
such deduction or withholding is required by any applicable law of any relevant
governmental revenue authority then in effect. If Licensee is required to deduct
or withhold, Licensee will promptly notify VeriFone of such requirement, pay the
required amount to the relevant governmental authority, provide VeriFone with an
official receipt or certified copy or other documentation acceptable to VeriFone
evidencing the payment, and pay to
7
VeriFone, in addition to the payment to which VeriFone is otherwise entitled
under this Agreement, the additional amount necessary to ensure that the net
amount actually received by VeriFone free and clear of all taxes equals the full
amount VeriFone would have received had no such deduction or withholding been
required.
5.5. Payment Terms. All payments due under this Agreement must be made
in U.S. dollars. Any payment due under this Agreement that is not paid when due
shall bear a late fee at the rate of eighteen percent (18%) per annum or the
maximum rate permitted by local law, whichever is less.
6. Limited Warranties.
6.1. Media Warranty. Subject to the provisions of this Section 6 and
Section 9, VeriFone warrants that the Media will be free of defects in materials
and workmanship for thirty (30) days after the delivery of the Media to
Licensee. This warranty is void if any defect is caused by abuse or
misapplication of the VeriFone Software, whether or not by accident. Licensee's
sole and exclusive remedy for any breach of this warranty will be for VeriFone
to replace or correct the defective Media. Any replacement Media or corrected
Media will be subject to this same thirty (30) day warranty.
6.2. Program Error Correction. VeriFone warrants that for ninety (90)
days after delivery to Licensee of any VeriFone Software licensed hereunder, the
VeriFone Software will perform substantially in accordance with the then current
VeriFone Documentation and the specifications annexed hereto as Exhibit D;
provided, however, that to the extent Licensee makes any modification to the
VeriFone Software, then this warranty shall not extend to such modification.
With respect to the VeriFone Software and the Third-Party Software, Licensee
hereby acknowledges and agrees that Licensee's sole remedy for any
nonconformance to the technical documentation contained in Exhibit D and/or
Program Errors, and for any damage, loss or injury resulting therefrom, shall be
those support obligations set forth in Section 4. Licensee acknowledges that
under no circumstances does VeriFone represent or warrant that all Program
Errors can or will be remedied. VeriFone warrants that support services provided
hereunder shall be performed in a workmanlike manner in accordance with normal
industry standards. VERIFONE DOES NOT WARRANT THAT OPERATION OF THE VERIFONE
SOFTWARE OR THE THIRD-PARTY SOFTWARE WILL BE ERROR-FREE, SECURE OR
UNINTERRUPTED, OR THAT APPLICATIONS DEVELOPED USING THE VERIFONE SOFTWARE WILL
BE COMPATIBLE WITH FUTURE VERSIONS OF VERIFONE'S TECHNOLOGY, AND HEREBY
DISCLAIMS ALL LIABILITY ON ACCOUNT THEREOF.
6.3. Disclaimer. THE EXPRESS WARRANTIES OF VERIFONE STATED IN THIS
SECTION 6.3 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. VERIFONE
EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING PRODUCTS OR
SERVICES PROVIDED BY ANY THIRD PARTY IN CONNECTION WITH THE VERIFONE SOFTWARE OR
THE THIRD-PARTY SOFTWARE. THE EXPRESS WARRANTY OBLIGATIONS OF VERIFONE STATED IN
THIS SECTION 6.3 ARE IN LIEU OF ANY OTHER LIABILITY OR OBLIGATION OF VERIFONE,
INCLUDING WITHOUT LIMITATION ANY LIABILITY OR OBLIGATION FOR DAMAGE, LOSS OR
INJURY (WHETHER DIRECT, INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR
INCIDENTAL), ARISING FROM OR IN CONNECTION WITH THE VERIFONE SOFTWARE.
6.4. No Third Party Warranties. VERIFONE HEREBY DISCLAIMS ANY
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, BY ANY VERIFONE SUPPLIER,
AND LICENSEE ACKNOWLEDGES AND AGREES THAT NO REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, HAS BEEN MADE BY ANY VERIFONE SUPPLIER UNDER THIS AGREEMENT.
7. Confidentiality.
7.1. Non-disclosure and Non-use. Each party receiving Confidential
Information shall treat such information as strictly confidential, and shall use
the same care to prevent disclosure of such information as such
8
party uses with respect to its own confidential and proprietary information,
which shall not be less than the care a reasonable person would use under
similar circumstances. In any event, each party receiving Confidential
Information shall (a) disclose such Confidential Information to (i) only those
authorized employees and directors of such party whose duties justify their need
to know such information and who have been clearly informed of their obligation
to maintain the confidential and/or proprietary status of such Confidential
Information; or (ii) only those third parties required for the performance of
the receiving party's obligations under this Agreement pursuant to a written
confidentiality agreement as least as extensive as the confidentiality
provisions of this Agreement; and (b) use such Confidential Information only for
the purposes set forth in this Agreement.
7.2. Certain Exceptions. The obligations set forth in this Section 7
shall not apply to any Confidential Information which must be disclosed pursuant
to applicable federal, state or local law, regulation, court order, or other
legal process, provided the receiving party has given the disclosing party prior
written notice of such required disclosure and, to the extent reasonably
possible, has given the disclosing party an opportunity to contest such required
disclosure at the disclosing party's expense.
7.3. Advertising and Press Releases. Neither party shall advertise,
issue any press release, or otherwise publish the fact that the parties have
entered into this Agreement, without the prior written consent of the other
party, except as may be required by law. The parties shall use their best
efforts to draft and issue a press release announcing the signing of this
Agreement after the Effective Date and each party may include the information
included in such press release in subsequent advertisements, press releases or
other publications without the other party's prior written consent, provided
that such party includes proper attribution of the other party's name. Following
the issuance of such press release, VeriFone may also refer to Licensee as
VeriFone's licensee and distributor in VeriFone's sales and marketing materials
and presentations.
7.4. Terms of This Agreement. Notwithstanding anything to the contrary
in this Agreement, neither party may disclose the terms of this Agreement
(including the fees) to any third party without the express prior written
consent of the other party; provided, however, that either party may disclose
the terms of this Agreement to its affiliates, attorneys and accountants, or to
any potential investor or acquiror of a substantial part of such party's
business (whether by merger, sale of assets, sale of stock or otherwise), or as
may be required by law and provided further that VeriFone may disclose the terms
of this Agreement to its suppliers of the Third Party Software under
confidentiality restrictions no less restrictive than those contained herein.
8. Indemnities and Exceptions.
8.1. VeriFone Indemnity. Subject to the provisions of this Section 8
and Section 9, VeriFone shall at its expense defend any action against Licensee
to the extent such action is based on a claim that the VeriFone Software
infringes any Berne Convention copyright or U.S. registered trademark or
misappropriates a trade secret as defined under the Uniform Trade Secret Law,
and VeriFone shall pay those damages and costs finally awarded against Licensee
in any such action which are specifically attributable to such claim, or those
damages and costs agreed in any monetary settlement or compromise of such
action. The foregoing obligations are conditioned on Licensee notifying VeriFone
promptly in writing of such action, Licensee giving VeriFone sole control of the
defense thereof (and any negotiations for monetary settlement or compromise
thereof), and Licensee cooperating in the defense thereof at VeriFone's expense.
If any version or component of the VeriFone Software becomes, or in VeriFone's
opinion is likely to become, the subject of a claim of infringement or
misappropriation, then Licensee shall permit VeriFone, at its option and
expense, to (a) procure the right to continue using such VeriFone Software; (b)
replace or modify such VeriFone Software so that it becomes non-infringing or no
longer misappropriates; or (c) accept return of such VeriFone Software and give
Licensee a credit for any license fees or royalties paid by Licensee for such
VeriFone Software less depreciation calculated as an equal amount per year over
a period of five (5) years from the date of initial delivery of such VeriFone
Software to Licensee, in which case Licensee's license to such VeriFone Software
will terminate in its entirety. Licensee shall not incur any costs or expenses
for the account of VeriFone under or pursuant to this Section 8.1 without
VeriFone's express prior written consent. THE FOREGOING STATES THE ENTIRE
LIABILITY OF VERIFONE FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS AND
9
ACTIONS.
8.2. Certain Exceptions; Licensee Indemnity. VeriFone shall have no
liability to Licensee under Section 8.1 or otherwise for any action or claim
alleging infringement or misappropriation based upon (a) any use of the VeriFone
Software or the Third-Party Software in a manner other than as specified by
VeriFone; (b) any use of the VeriFone Software as embedded in the VeriSmart
Application(s) or in combination with any other products, equipment, devices,
software, systems or data not supplied by VeriFone; (c) the VeriSmart
Applications, (d) Licensee's trademarks; or (e) any alteration, modification or
customization of the VeriFone Software or the Third- Party Software by any
person other than VeriFone or its authorized subcontractors or agents. In the
event of an infringement or misappropriation action or claim against VeriFone
that is based on any of the circumstances or conduct described in the preceding
sentence, Licensee shall at its own expense defend such action or claim, and
Licensee shall pay any and all damages and costs finally awarded against
VeriFone in connection with such action or claim, or those damages and costs
agreed in any monetary settlement or compromise of such action, provided that
VeriFone notifies Licensee promptly in writing of such action or claim, VeriFone
gives Licensee sole control of the defense thereof (and any negotiations for
settlement or compromise thereof), and VeriFone cooperates in the defense
thereof at Licensee's expense. VeriFone shall not incur any costs or expenses
for the account of Licensee under or pursuant to this Section 8.2 without
Licensee's express prior written consent.
9. LIMITATION OF LIABILITY.
VERIFONE'S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE
VERIFONE SOFTWARE AND THE SERVICES PROVIDED BY VERIFONE HEREUNDER, REGARDLESS OF
THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR
OTHERWISE), AND INCLUDING ANY LIABILITY UNDER SECTION 6 AND SECTION 8, SHALL NOT
EXCEED THE AGGREGATE FEES PAID BY LICENSEE TO VERIFONE UNDER THIS AGREEMENT.
VERIFONE SHALL NOT BE LIABLE FOR ANY FAILURE OF THE VERIFONE SOFTWARE OR THE
THIRD- PARTY SOFTWARE TO PROVIDE SECURITY. VERIFONE SHALL NOT BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES OF ANY KIND
(INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF VERIFONE HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS PROVIDED IN SECTION 8 (BUT ONLY TO
THE EXTENT OF AND SUBJECT TO THE LIMITATIONS IN SECTION 8), VERIFONE SHALL NOT
BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE VERIFONE SOFTWARE,
THIRD PARTY SOFTWARE OR THE SERVICES PROVIDED BY VERIFONE HEREUNDER; AND
LICENSEE SHALL DEFEND VERIFONE FROM, AND INDEMNIFY AND HOLD VERIFONE HARMLESS
AGAINST, ALL SUCH CLAIMS. THE FOREGOING STATES VERIFONE'S ENTIRE LIABILITY WITH
REGARD TO THIS AGREEMENT. THESE LIMITATIONS OF VERIFONE'S LIABILITY ARE A
FUNDAMENTAL PART OF THE BASIS OF VERIFONE'S BARGAIN, AND VERIFONE WOULD NOT
ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS. LICENSEE DISCLAIMS ALL
LIABILITY OF ANY KIND OF ANY VERIFONE SUPPLIER IN CONNECTION WITH THIS
AGREEMENT.
10. Term and Termination.
10.1. Term. Unless terminated earlier pursuant to the termination
provisions in this Section 10, this Agreement shall remain in effect for three
(3) years from the Effective Date, and shall automatically renew for annual
periods thereafter unless voluntarily terminated by either party, in its sole
discretion, at the end of the initial term or any renewal term by giving the
other party at least ninety (90) days written notice before the expiration of
the initial or any renewal term.
10.2. Termination by VeriFone. VeriFone will have the right to
terminate this Agreement upon written notice to Licensee if (a) Licensee fails
to perform any of its obligations under or otherwise breaches Section 2; (b)
Licensee fails to pay any amounts as required under Section 5 and such failure
continues for ten (10) days after receipt of written notice from VeriFone; or
(c) Licensee fails to perform any of its other obligations under this
10
Agreement and such failure continues for thirty (30) days after receipt of
written notice from VeriFone.
10.3. Termination by Licensee. Licensee will have the right to
terminate this Agreement upon written notice to VeriFone if VeriFone fails to
(a) perform any of its obligations under or otherwise breaches Section 4, (b)
promptly replace Third-Party Software within a commercially reasonable period in
accordance with Section 10.5, or (c) perform any of its obligations under this
Agreement and any such failures continue for thirty (30) days after receipt by
VeriFone of written notice from Licensee specifying such default.
10.4. Effect of Termination. If this Agreement expires or terminates or
if either party terminates the Agreement under Sections 10.2 or 10.3:
(a) Each party shall return or destroy all Confidential
Information of the other party (and copies thereof);
(b) Licensee shall immediately cease using the VeriFone
Trademarks and, except as provided in
Section 10.4(f), below, the VeriFone Software and
discontinue all representations that it is a VeriFone
distributor;
(c) Licensee shall immediately cease distribution, and
cause its subdistributors to cease distribution, of
the VeriSmart Applications;
(d) If Licensee is a participant in the "Easy Entry"
program as indicated in Exhibit B attached hereto,
Licensee shall immediately, and without further
action by VeriFone, pay the balance of the Easy Entry
fees indicated on such Exhibit B;
(e) End users shall be permitted the continued and
uninterrupted use of the VeriSmart Applications
subject to and for the balance of their End User
agreements, provided that such license agreements
comply with all of the requirements of this Agreement
and are terminable in accordance with their terms;
and
(f) Licensee may, for the period of one (1) year from
the date of termination of this Agreement ("Wind-Down
Period"), continue to use only those portions of the
VeriSmart Application Developer's Kit necessary to
support Licensee's and Licensee's subdistributor's
End Users of VeriSmart Applications distributed in
accordance with Section 2.4 as of such date of
termination. At the end of the Wind-Down Period,
Licensee shall, at VeriFone's instructions,
immediately cease using such portions of the
VeriSmart Application Developer's Kit and either
destroy or return those portions of the VeriSmart
Application Developer's Kit and all copies thereof or
any components thereof created by Licensee thereof.
Each party shall deliver to the other party a certificate
signed by an officer of such party acknowledging that such party's obligations
under this Section 10.4 have been fully satisfied.
10.5. Termination by Licensee - VeriFone Assignment of Agreement to
Competitor of Licensee. Licensee will also have the right to terminate this
Agreement upon written notice to VeriFone if VeriFone assigns this Agreement to
a third party that is a direct competitor of Licensee. If this Agreement is
terminated by Licensee under this Section 10.5:
(a) Each party shall return or destroy all Confidential
Information of the other party (and copies thereof);
(b) Licensee shall immediately cease using the VeriFone
Trademarks and, except as provided
11
in Section 10.5(f), below, the VeriFone Software and
discontinue all representations that it is a VeriFone
distributor;
(c) Licensee shall immediately cease distribution, and
cause its subdistributors to cease distribution, of
the VeriSmart Applications;
(d) If Licensee is a participant in the "Easy Entry"
program as indicated in Exhibit B attached hereto,
Licensee shall immediately, and without further
action by VeriFone, pay VeriFone only those fees
already incurred under the Easy Entry program as of
the date of termination;
(e) End users shall be permitted the continued and
uninterrupted use of the VeriSmart Applications
subject to and for the balance of their End User
agreements, provided that such license agreements
comply with all of the requirements of this Agreement
and are terminable in accordance with their terms;
(f) Licensee may, for the period of one (1) year from
the date of termination of this Agreement ("Wind-Down
Period"), continue to use only those portions of the
VeriSmart Application Developer's Kit necessary to
support Licensee's and Licensee's subdistributor's
End Users of VeriSmart Applications distributed in
accordance with Section 2.4 as of such date of
termination. At the end of the Wind-Down Period,
Licensee shall, at VeriFone's instructions,
immediately cease using such portions of the
VeriSmart Application Developer's Kit and either
destroy or return those portions of the VeriSmart
Application Developer's Kit and all copies thereof or
any components thereof created by Licensee thereof;
and
(g) VeriFone and/or VeriFone's assignee shall
immediately return all copies of Licensee's VeriSmart
Applications provided to VeriFone pursuant to Section
2.11(a).
Each party shall deliver to the other party a certificate
signed by an officer of such party acknowledging that such party's obligations
under this Section 10.5 have been fully satisfied.
10.6. Termination of Licenses to Third-Party Software. VeriFone
reserves the right to terminate immediately, upon written notice, Licensee's
right to use internally the Third-Party Software in the event VeriFone's
sublicensing and distribution rights with respect thereto are terminated by the
relevant supplier. VeriFone will use reasonable commercial efforts to promptly
replace such Third-Party Software with other software with substantially similar
functionality.
10.7. Survival. Section 1 ("Definitions") Section 2.2 ("Ownership"),
Section 2.9 ("Enforcement of Subdistributor Agreements and End User
Agreements"), Section 2.11 ("License to VeriSmart Applications"), Section 3
("Restrictions and Limitations"), Section 4.1 ("Support to End Users"),
Section 5 ("Fees, Payments, Reports and Audits"), Section 6.3 ("Disclaimer"),
Section 6.4 ("No Third Party Warranties"), Section 7 ("Confidentiality"),
Section 8 ("Indemnities and Exceptions"), Section 9 ("Limitation of
Liability"), Section 10.4 ("Effect of Termination"), Section 10.5
("Termination by Licensee -VeriFone Assignment of Agreement to Competitor of
Licensee "), Section 10.6 ("Termination of Licenses to Third-Party
Software"), this Section 10.7 ("Survival"), and Section 11 ("General") of
this Agreement shall survive any expiration or termination of this Agreement.
11. General.
11.1. Governing Law. This Agreement shall for all purposes be governed
by and interpreted in accordance with the laws of the State of California as
those laws are applied to contracts entered into and performed entirely in
California by California residents. The United Nations Convention on Contracts
for the International Sale of Goods
12
does not apply to this Agreement.
11.2. Export Control. The VeriFone Software and the Third-Party
Software is subject to the export control laws of the United States. Licensee
must, and shall cause all of its subdistributors to, (i) comply with all
applicable export statutes and regulations, (ii) require each End User to use
the VeriFone Software in accordance with all applicable export control laws,
statutes and regulations, and (iii) not permit any other third party to use the
VeriFone Software in violation of such export control laws, statutes and
regulations. Licensee acknowledges that even if VeriFone consents to the use of
the VeriFone Software or the Third-Party Software outside the United States, (a)
Licensee may be required to obtain an export license prior to the export or
re-export, directly or indirectly, of the VeriFone Software or the Third-Party
Software, or any direct product of the use thereof, or (b) export or re-export
to certain countries may be prohibited. Licensee agrees to indemnify and hold
VeriFone and its suppliers harmless from any claims arising from any breach of
this Section by Licensee or any of its directors, officers, employees,
subdistributors, customers or any third party to whom Licensee provides access
to the VeriFone Software or the Third-Party Software.
11.3. Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable for any reason, the
remaining provisions hereof shall be unaffected and remain in full force and
effect, unless the unenforceable provisions are of such essential importance to
this Agreement that it is to be reasonably assumed that the parties would not
have entered into this Agreement without such provisions.
11.4. Modifications. Any modification, amendment, supplement, or other
change to this Agreement must be in writing and signed by duly authorized
representatives of VeriFone and Licensee. As used herein, the term "Agreement"
shall include any such future modifications, amendments, supplements or other
changes hereto.
11.5. Assignments. No right or obligation of Licensee under this
Agreement shall be assigned, delegated or otherwise transferred, whether by
agreement, operation of law or otherwise without the express prior written
consent of VeriFone and any attempt to assign, delegate or otherwise transfer
any of Licensee's rights or obligations hereunder, without such consent, shall
be void. Subject to the preceding sentence, this Agreement shall bind each party
and its permitted successors and assigns.
11.6. Waivers. All waivers must be in writing. The failure of either
party to insist upon strict performance of any provision of this Agreement, or
to exercise any right provided for herein, shall not be deemed to be a waiver
for the future of such provision or right, and no waiver of any provision or
right shall affect the right of the waiving party to enforce any other provision
or right herein.
11.7. Equitable Remedies. The parties agree that any breach of Sections
1, 3 or 7 would cause irreparable injury for which no adequate remedy at law
exists; therefore, the parties agree that equitable remedies, including without
limitation injunctive relief and specific performance, are appropriate remedies
to redress any breach or threatened breach of such Sections, in addition to all
other remedies available to the parties.
11.8. Rights and Remedies. All rights and remedies hereunder shall be
cumulative, may be exercised singularly or concurrently, and shall not be deemed
exclusive except as provided above. If any legal action is brought to enforce
any obligations hereunder, the prevailing party shall be entitled to receive its
attorneys' fees, court costs and other collection expenses, in addition to any
other relief it may receive.
11.9. Force Majeure. Neither party shall be held liable or responsible
to the other party nor be deemed to have defaulted under or breached this
Agreement for failure or delay in fulfilling or performing any term of this
Agreement to the extent, and for so long as, such failure or delay is caused by
or results from causes beyond the reasonable control of the affected party
including, but not limited, to any act of God, fire, natural disaster, accident,
war, insurrections, riots, civil commotion, strikes, lockouts or other labor
disturbances, or any acts, omissions, delays in acting by any government
authority or the other party, or the inability of VeriFone, despite its
reasonable efforts, to obtain any United States export license or other approval
or authorization of the United States government for the
13
performance by VeriFone of its obligations hereunder. The preceding sentence
shall not apply when the outstanding obligation by either party is payment for
any money due to the other party.
11.10. Construction. The headings and subheadings contained herein
shall not be considered a part of this Agreement. This Agreement may be executed
in several counterparts, all of which shall constitute one agreement.
11.11. Notices. Any notice or communication permitted or required
hereunder shall be in writing and shall be delivered in person or by courier or
sent by electronic facsimile (fax), and addressed as set forth after the
signatures to this Agreement or to such other address as shall be given in
accordance with this Section 11.11. All notices hereunder shall be effective
upon receipt.
11.12. Relationship Between Parties. VeriFone and Licensee shall at all
times and for all purposes be deemed to be independent contractors and neither
party, nor either party's employees, subcontractors or agents, shall have the
right or power to bind the other party. This Agreement shall not create or be
deemed to create a joint venture, partnership or other similar association
between VeriFone and Licensee or any of either party's employees, subcontractors
or agents.
11.13. Precedence Over Purchase Order Terms. Any additional or
different terms of Licensee's purchase order and/or acknowledgment form, whether
or not such terms materially alter this Agreement, shall be deemed objected to
by VeriFone unless this Agreement is expressly amended by the parties hereto.
Execution of Licensee's purchase order shall not operate as an amendment to this
Agreement. Whenever printed, typed, stamped or written provisions of Licensee's
purchase order conflict with this Agreement, this Agreement shall control.
11.14. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes all prior agreements between the parties, whether written or oral,
relating to the same subject matter.
In Witness Whereof, the parties hereto, by their duly authorized
representatives, have executed and delivered this Agreement.
VERIFONE, INC. LICENSEE: Precis Smart Card Systems, Inc.
By: /S/QUOG ▇. ▇▇▇▇▇ By: /S/▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------------- --------------------------------------------------
Print Name: Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Print Title: Print Title: President and CEO
------------------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attn: Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
14
[THE FOLLOWING EXHIBITS WILL BE PROVIDED UPON REQUEST ADDRESSED TO THE COMPANY]
EXHIBIT A - Verismart Application Developer's Kit
EXHIBIT B - Fees and Payments
EXHIBIT C - Third Party Software Terms
EXHIBIT D - Third Party Software Terms
15