Exhibit 10.4
S E R V I C E M A R K L I C E N S E A G R E E M E N T
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THIS SERVICE ▇▇▇▇ LICENSE AGREEMENT (this "Agreement") is entered into as
of [________], 1996, by and among Western Union Financial Services, Inc., a
Delaware Corporation ("WU"), Integrated Payment Systems Inc., a Delaware
corporation ("IPS"), and MoneyGram Payment Systems, Inc., a Delaware corporation
("Licensee").
WHEREAS, IPS, First Data Corporation, a Delaware corporation ("FDC"), and
Licensee are parties to the Contribution Agreement dated as of [_________], 1996
(the "Contribution Agreement"), pursuant to which IPS and FDC will contribute
certain assets associated with the Business (as hereafter defined) to Licensee;
and
WHEREAS, pursuant to the Contribution Agreement, FDC agreed to cause WU to
grant to Licensee a license to use certain Licensed Marks (as hereafter defined)
on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and mutual covenants,
representations, conditions and agreements hereafter expressed, the Parties (as
hereafter defined) hereto agree as follows:
1. Definitions. The capitalized terms used herein shall have the
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respective meanings specified or referred to in this Section 1. Each agreement
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referred to in this Agreement shall mean such agreement as amended, supplemented
and modified from time to time to the extent permitted by the applicable
provisions thereof and hereof. Each definition in this Agreement includes the
singular and the plural, and reference to the neuter gender includes the
masculine line and feminine where appropriate. References to any statute or
regulation means such statute or regulation as amended at the time and include
any successor legislation or regulation. The headings to the Sections hereof are
for convenience of reference and shall not affect the meaning or interpretation
of this Agreement. Except as otherwise stated, reference to Sections and
Exhibits means the Sections and Exhibits of this Agreement. The Exhibits are
hereby incorporated by reference into and shall be deemed a part of this
Agreement. Unless the context clearly indicates otherwise, whenever the word
"include," "includes," or "including" is used in this Agreement, each such word
shall be deemed to be followed by the words "without limitation."
"Affiliate" means, with respect to any Person, any other Person which,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person; provided, however, that under no circumstances shall FDC and
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its Affiliates be deemed Affiliates of Licensee or shall Licensee and its
Affiliates be deemed Affiliates of FDC.
"Agreement" shall have the meaning set forth in the first paragraph of this
Agreement.
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"Business" means the Consumer Money Wire Transfer Services marketed under
the name "MoneyGram/SM/," it being acknowledged and agreed to by the Parties
hereto that the Business shall not include the Consumer Money Wire Transfer
Services marketed under the name "Western Union".
"Consequential Damages" means any liability, Loss, Expense or damage,
whether in an action arising out of or relating to a breach of warranty, breach
of contract, delay, negligence, theory of tort, strict liability or other legal
or equitable theory, for indirect, special, reliance, incidental, punitive,
exemplary or consequential damages or commercial loss, injury or damage,
including loss of revenues, profits or use of capital or production.
Consequential Damages shall not include direct damages.
"Consumer Money Wire Transfer Service" means the service of transferring
the right to money using computer or telephone lines, or any other technology
now existing or later developed, from one person through the location of a
MoneyGram Agent to a different person physically present at the location of a
different MoneyGram Agent, including the services marketed under the phrase
"Express Payment" or "Cash Advance".
"Contribution Agreement" shall have the meaning set forth in the first
recital to this Agreement.
"Costs" means all direct costs, expenses and charges plus all indirect
costs, expenses and charges, including reasonable allocations of overhead.
"Dispute" means any and all disputes, controversies and claims between the
Parties arising from or in connection with this Agreement or the relationship of
the Parties under this Agreement whether based on contract, tort, common law,
equity, statute, regulation, order or otherwise.
"Expenses" means any and all reasonable expenses incurred in connection
with investigating, defending or asserting any claim, action, suit or proceeding
incident to any matter indemnified against hereunder (including court filing
fees, court costs, witness fees and reasonable fees and disbursements of legal
counsel, investigators, expert witnesses, accountants and other professionals).
"FDC" shall have the meaning set forth in the first recital to this
Agreement.
"Force Majeure Event" shall have the meaning specified in Section 17(c).
"Governmental Body" means any foreign, federal, state, local or other
governmental authority or regulatory body.
"Intellectual Property" means any trademark, service ▇▇▇▇, trade dress,
logo or trade name.
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"IPS" shall have the meaning set forth in the first paragraph of this
Agreement.
"Languages" means those certain languages in which the Licensed Marks are
licensed to Licensee as set forth in Exhibit A of this Agreement.
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"Licensed Marks" means the service marks set forth in Exhibit A of this
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Agreement.
"Licensee" shall have the meaning set forth in the first paragraph of this
Agreement.
"Licensee Signage" shall have the meaning set forth in Section 6(b).
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"Losses" means any and all losses, Costs, obligations, liabilities,
settlement payments, awards, judgments, fines, penalties, damages, deficiencies
or other charges.
"MoneyGram Agent" means a Person that now or in the future has contracted
to provide the Consumer Money Wire Transfer Services.
"Operations Agreement" shall have the meaning set forth in Section 11.
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"Party" means a party to this Agreement and its permitted successors and
assigns.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or Governmental Body.
"Prohibited Additional Element" means any term that Licensee is precluded
from using in connection with each Licensed ▇▇▇▇ as set forth in Exhibit A of
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this Agreement.
"Prohibited Marks" means the marks set forth in Exhibit B of this
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Agreement.
"Required Additional Element" means any additional term that Licensee must
use in connection with each Licensed ▇▇▇▇ as set forth in Exhibit A of this
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Agreement.
"Requirements of Law" means any foreign, federal, state and local laws,
statutes, regulations, rules, codes or ordinances enacted, adopted, issued or
promulgated by any Govern mental Body.
"Territory" means the countries specified in Exhibit A of this Agreement.
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"WU" shall have the meaning set forth in the first paragraph of this
Agreement.
"WU Signage" shall have the meaning set forth in Section 7(b).
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2. License Grant. WU hereby grants to Licensee a non-exclusive and
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royalty-free license to:
(a) use the Licensed Marks solely in connection with the Business in
the Languages and in the designated Territories as specified on Exhibit A,
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provided that: (i) Licensee uses each Licensed ▇▇▇▇ with each Required
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Additional Element and (ii) Licensee does not use each Licensed ▇▇▇▇ with
any Prohibited Additional Element, it being understood that Licensee may
use with each Licensed ▇▇▇▇ elements in addition to each Required
Additional Element so long as such additional elements otherwise comply
with Licensee's obligations and covenants set forth herein;
(b) permit MoneyGram Agents to use the Licensed Marks solely in
connection with the Business in the Languages and in the designated
Territories as specified on Exhibit A, provided that: (i) each such
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MoneyGram Agent uses each Licensed ▇▇▇▇ with each Required Additional
Element (it being understood that each such MoneyGram Agent may use with
each Licensed ▇▇▇▇ elements in addition to each Required Additional Element
so long as such additional elements otherwise comply with each MoneyGram's
Agents obligations and covenants set forth herein), (ii) each such
MoneyGram Agent does not use each Licensed ▇▇▇▇ with any Prohibited
Additional Element, (iii) each such MoneyGram Agent that, after the date
hereof, enters into an agreement with Licensee to provide the services
offered by the Business, or amends any agreement that exists on the date
hereof to provide the services offered by the Business, agrees to be bound
in writing to the terms and conditions set forth in this Agreement,
pursuant to which WU is an express third party beneficiary of each such
agreement, and (iv) to the extent necessary, Licensee promptly provides WU
with a copy of each such agreement to enforce WU's rights under such
agreement should Licensee fail to enforce WU's rights in a timely manner;
and
(c) sublicense the rights granted to Licensee pursuant to Sections
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2(a) and 2(b) to any Affiliate of Licensee engaged in the Business,
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provided that (i) each such Affiliate agrees to be bound in writing to the
terms and conditions set forth in this Agreement, (ii) WU is an express
third party beneficiary of each such agreement and (iii) to the extent
necessary, Licensee promptly provides WU with a copy of each such agreement
to enforce WU's rights under such agreement should Licensee fail to enforce
WU's rights in a timely manner.
3. Standards For Use Of Licensed Marks.
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(a) Use of the Licensed Marks by Licensee, each MoneyGram Agent and
any Affiliate of Licensee pursuant to this Agreement shall be in accordance
with the standards of quality set forth in Exhibit C. Licensee shall
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conduct the Business in which the Licensed Marks are used in substantial
compliance with all Requirements of Law.
(b) In connection with the use of Licensed Marks, Licensee shall, and
shall cause each MoneyGram Agent and each Affiliate of Licensee to, apply
the notice (e.g., the
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(R) symbol, the "SM" symbol or the "TM" symbol) specified by WU in writing.
WU shall provide Licensee with written notice of changes to the notation
requirements for the Licensed Marks. Licensee shall, and shall cause each
MoneyGram Agent and each Affiliate of Licensee to, implement such changes
as soon as reasonably practicable, provided that Licensee shall not be
required to remove, replace or reprint, or cause to be removed, replaced or
reprinted, any signage, advertising, promotional materials, paper goods and
any other materials and supplies that contain the Licensed Marks with the
former notations, except as would be necessary in the ordinary course of
Licensee's business.
4. Review of Use of Licensed Marks. Upon WU's reasonable request,
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which shall not be more often than quarterly, Licensee shall provide WU with a
representative sample of sales literature, documents, instruments, printed media
or other materials bearing the Licensed Marks for purpose of verifying
compliance with the terms of this Agreement by Licensee, each MoneyGram Agent
and each Affiliate of Licensee. If WU reasonably considers such products or
services or such documents, instruments, media and other material to be of a
type or quality that is inconsistent with the terms of this Agreement, WU may
request Licensee to, and Licensee shall and shall cause each MoneyGram Agent and
each Affiliate of Licensee to (unless Licensee or such MoneyGram Affiliate of
Licensee elects to discontinue use of the Licensed Marks as they relate to such
products, services, documents, instruments, media or other material), improve
such products or services or such documents, instruments, media and other
materials such that such products or services or such documents, instruments,
media and other materials are of a type and quality that is consistent with the
terms of this Agreement. If Licensee fails or fails to cause any MoneyGram
Agent or Affiliate of Licensee to exercise either of the foregoing options, WU
may proceed under Section 15.
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5. WU's Retention of Ownership.
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(a) Licensee acknowledges and agrees that as between Licensee and WU,
WU owns all right, title and interest in and to the Licensed Marks and the
Prohibited Marks, and Licensee agrees and shall cause each MoneyGram Agent
that, after the date hereof, enters into an agreement with Licensee to
provide the services offered by the Business, or amends any agreement that
exists on the date hereof to provide the services offered by the Business,
and each Affiliate of Licensee to agree that the use of the Licensed Marks
or the Prohibited Marks shall not create in the favor of Licensee, any such
MoneyGram Agent or any Affiliate of Licensee any ownership interest
therein. All right, title and interest in and to the Licensed Marks and the
Prohibited Marks, other than those rights expressly granted herein, shall
remain in WU.
(b) Licensee agrees and shall cause each MoneyGram Agent that, after
the date hereof, enters into an agreement with Licensee to provide the
services offered by the Business, or amends any agreement that exists on
the date hereof to provide the services offered by the Business, and each
Affiliate of Licensee to agree to execute all documents reasonably
requested by WU to effect any necessary or appropriate registration,
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maintenance or renewal of any of the Licensed Marks in any Language in any
Territory or recordation of Licensee, any MoneyGram Agent or any Affiliate
of Licensee as a registered user of any of the Licensed Marks. WU shall
reimburse Licensee, any MoneyGram Agent or any Affiliate of Licensee for
any reasonable out-of-pocket costs incurred by Licensee, any MoneyGram
Agent or any Affiliate of Licensee in connection therewith.
(c) Except as required by applicable Requirements of Law and except
as otherwise provided in this Agreement, during the term of this Agreement
and at any time after the expiration, cancellation, annulment or
termination of this Agreement or any license granted pursuant hereto with
respect to any Territory, Licensee shall not, and shall cause each
MoneyGram Agent and each Affiliate of Licensee not to: (i) use any trade
name or any other name, ▇▇▇▇ or trade dress that is confusingly similar to
any of the Licensed Marks in any language (whether or not such language is
delineated in Exhibit A) in any Territory; or (ii) use any of the
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Prohibited Marks anywhere in the world in any language.
(d) IPS acknowledges and agrees that as between IPS and WU, WU owns
all right, title and interest in and to the Licensed Marks and the
Prohibited Marks in all languages anywhere in the world, and hereby
releases any and all right, title and interest (if any) that IPS may have
in and to the Licensed Marks and the Prohibited Marks in all languages
anywhere in the world.
6. Licensee and MoneyGram Agent Nonconforming Uses; Signage.
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(a) Nonconforming Uses. The Parties acknowledge and agree that as of
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the date of this Agreement, Licensee and MoneyGram Agents are using in the
Territories the Prohibited Marks or the Licensed Marks in a manner that
does not comply with the terms and conditions of this Agreement. Except as
set forth in Section 6(b), within one-hundred eighty (180) days after the
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date of this Agreement, Licensee shall cease and shall cause all MoneyGram
Agents and Affiliates of Licensee to cease (i) all such uses of the
Prohibited Marks and (ii) all nonconforming uses of the Licensed Marks.
(b) Signage. The Parties acknowledge and agree that as of the date of
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this Agreement, Licensee and MoneyGram Agents have signage in Territories
that contain the Prohibited Marks or the Licensed Marks that do not comply
with the terms and conditions of this Agreement (the "Licensee Signage").
Licensee and MoneyGram Agents may continue to use the Licensee Signage
and, prior to one-hundred eighty (180) days after the date of this
Agreement, may put in place additional Licensee Signage, provided that the
Licensee Signage is, as of the date that is one-hundred eighty (180) days
after the date of this Agreement: (i) affixed permanently to a fixture at a
location of Licensee or a Money Gram Agent; (ii) professionally
manufactured; and (iii) not a billboard or bench advertisement. If, after
the date that is one-hundred eighty (180) days after the date of this
Agreement: (x) such Licensee Signage is damaged, broken or ceases in whole
or in part to be affixed to the fixture to which it is affixed currently
for any reason whatsoever (including, a Force Majeure Event); (y) Licensee
or any MoneyGram Agent ceases to use
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the location containing such Licensee Signage, then such Licensee Signage
shall be (A) removed and destroyed and (B) at the option of Licensee or the
MoneyGram Agent, replaced with signage that complies with the terms and
conditions of this Agreement.
7. WU, WU Affiliates and Its and Their Respective Agents'
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Nonconforming Uses; Signage.
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(a) Nonconforming Uses. The Parties acknowledge and agree that as of
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the date of this Agreement, WU, WU Affiliates, and its and their respective
agents are using the Licensed Marks in Territories in ways that do not
comply with the terms and conditions of this Agreement. Except as set forth
in Section 7(b), within one-hundred eighty (180) days after date of this
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Agreement, WU shall cease, and shall cause its Affiliates and its and its
Affiliates' agents to cease, all such uses of the Licensed Marks in
Territories that do not comply with the terms and conditions of this
Agreement.
(b) Signage. The Parties acknowledge and agree that as of the date of
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this Agreement, WU, WU Affiliates, and its and their respective agents have
signage in the Territories that contain the Licensed Marks in ways that do
not comply with the terms and conditions of this Agreement (the "WU
Signage"). WU, WU Affiliates, and its and their respective agents may
continue to use the WU Signage and, prior to one-hundred eighty (180) days
after the date of this Agreement, may put in place additional WU Signage,
provided that the WU Signage is, as of the date that is one-hundred eighty
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(180) days after the date of this Agreement: (i) affixed permanently to a
fixture at a location of WU, a WU Affiliate, or an agent of WU or a WU
Affiliate; (ii) professionally manufactured; and (iii) not a billboard or
bench advertisement. If, after the date that is one-hundred eighty (180)
days after the date of this Agreement: (x) such WU Signage is damaged,
broken or ceases in whole or in part to be affixed to the fixture to which
it is affixed currently for any reason whatsoever (including, a Force
Majeure Event); (y) WU, or any WU Affiliate or agent of WU or any WU
Affiliate ceases to use the location containing such WU Signage, then such
WU Signage shall be (A) removed and destroyed and (B) at the option of WU,
a WU Affiliate or agent of WU or any WU Affiliate, replaced with signage
that complies with the terms and conditions of this Agreement.
8. Unauthorized Use or Infringement of Licensed Marks. Licensee
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agrees to cooperate with WU as reasonably requested by WU in protecting,
enforcing and defending the Licensed Marks. Licensee agrees to notify promptly
WU in writing of any infringement, imitation, claim or other problem with
respect to the Licensed Marks that may arise or otherwise come to Licensee's
attention. Subject to the further provisions of this Section 8, WU shall have
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the right, but not the obligation, to take any action on account of any such
infringement, imitation, claim or problem, at its sole expense. Licensee shall
have the right, but not the obligation, to participate in any action taken on
account of any such infringement, imitation, claim or problem, at its sole
expense. Licensee shall not institute any suit or take any other action on
account of any such infringement, imitation, claim or problem without the prior
express written consent of WU, which consent WU may withhold in its sole
discretion. If WU initiates litigation against any
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Person, WU shall choose the attorneys, control the litigation, pay the Expenses
and retain any damages recovered as a result of any judgment in favor of WU. If
WU takes no action to stop an alleged unauthorized use or infringement of a
Licensed ▇▇▇▇ within a reasonable period of time following notice by Licensee of
such unauthorized use or infringement, then Licensee may, by written notice to
WU, request that WU bring an action with respect to such alleged unauthorized
use or infringement at the expense of Licensee, in which event WU shall promptly
commence such action, but only if (a) Licensee certifies to WU that, in the good
faith judgment of Licensee, the failure to take action against the unauthorized
use or infringement in question is reasonably likely to have a material adverse
effect on the Business and (b) Licensee delivers to WU an opinion of trademark
counsel (which such counsel is reasonably acceptable to WU) to the effect that
WU is more likely than not to prevail in such action. Any damages awarded in any
such suit shall, after payment of Expenses incurred by WU, be paid to Licensee.
9. Transactions Affecting the Licensed Marks. Licensee shall not,
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without informing WU in advance of the material facts relating thereto and
without obtaining WU's prior written consent, which consent WU may withhold in
its sole discretion, effect the settlement, defense of, consent to a judgment or
decree or other action with respect to any suit, action or proceeding before any
Governmental Body involving any Licensed ▇▇▇▇.
10. Registration. WU shall obtain such registrations of the Licensed
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Marks in each of the Territories and in each of the Languages as it deems
appropriate or necessary in its sole discretion, and Licensee, MoneyGram Agents
and Affiliates of Licensee shall not be entitled to obtain any such
registration. WU shall use commercially reasonable efforts to maintain the
registrations of any of the Licensed Marks that are currently registered in the
Territories and in the Languages where such Licensed Marks are currently
registered. In addition to those registrations obtained and maintained by WU as
provided in the first two sentences of this Section 10, if Licensee desires WU
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to register the Licensed Marks in other Territories or in other Languages, upon
Licensee's reasonable written request, WU shall use reasonable commercial
efforts to register and maintain, or cause to be registered or maintained, such
Licensed Marks in each of the Territories specified by Licensee, provided that:
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(a) Licensee reimburses WU for all Costs relating thereto; and (b) Licensee,
MoneyGram Agents and Affiliates of Licensee shall not be entitled to obtain any
such registration.
11. Confidentiality. The Parties hereby agree to be bound by
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the provisions of Article 7 of the Operations Agreement dated as of the date
hereof (the "Operations Agreement") among Licensee, First Data Technologies,
Inc., a Delaware corporation, and IPS, the provisions of which are hereby
incorporated by reference.
12. Representations and Warranties; Disclaimers.
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(a) By WU. WU represents and warrants to Licensee that: (i) WU has all
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right, power and authority to enter into and perform its obligations set
forth in this Agreement in accordance with its terms without the consent of
any third Person; (ii) the Licensed Marks if used as contemplated herein
will not infringe any Intellectual Property
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of any third Person; (iii) WU will not use the term "WIRE" or the term
"WORLDWIDE" in connection with the ▇▇▇▇ MONEY IN MINUTES in any Language or
in any Territory for which Licensee has received a license to use the ▇▇▇▇
WIRE MONEY IN MINUTES or MONEY IN MINUTES WORLDWIDE; (iv) subject to the
provisions of Section 7(b), after one-hundred eighty (180) days after date
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of this Agreement, WU shall not use the ▇▇▇▇ THE BETTER WAY TO WIRE MONEY
in English in any Territory for which Licensee has received a license to
use such ▇▇▇▇ pursuant to this Agreement; and (v) WU shall not license any
of the Licensed Marks to any third Person other than to WU Affiliates and
its and their respective agents.
(b) By Licensee. Licensee represents and warrants to WU that: Licensee
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has all right, power and authority to enter into and perform its
obligations set forth in this Agreement in accordance with its terms
without the consent of any third Person.
(c) No Other Warranties; Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES
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SET FORTH HEREIN, THE LICENSED MARKS PROVIDED TO LICENSEE HEREUNDER ARE
PROVIDED ON AN "AS-IS" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY
KIND WHATSOEVER. EXCEPT AS SET FORTH HEREIN, WU AND IPS MAKE NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO LICENSEE OR ANY
OTHER PERSON, INCLUDING ANY WARRANTIES REGARDING THE MERCHANTABILITY,
SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES OR
CUSTOM OR USAGE OF TRADE).
13. Disclaimer of Liability. NOTWITHSTANDING ANY OTHER PROVISION TO THE
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CONTRARY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL WU, IPS, ANY OF THEIR
RESPECTIVE AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES
UNDER THIS AGREEMENT, WHICH ARE HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES
REGARDLESS OF WHETHER OR NOT ANY PARTY OR ANY OTHER SUCH PERSON HAS BEEN ADVISED
OR COULD HAVE FORESEEN, OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING
REPRESENTS AN EXPRESS ALLOCATION OF RISK AMONG THE PARTIES.
14. Indemnification.
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(a) Indemnification by WU. Subject to Section 15, WU shall indemnify
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and hold Licensee harmless against any and all Losses and Expenses arising
out of or related to: (i) the material breach of any warranty or the
inaccuracy of any representation of WU contained in this Agreement; (ii)
the material breach by WU of any of its covenants in this Agreement; or
(iii) any claim against Licensee based on Licensee's use of the Licensed
Marks in accordance with this Agreement or the license granted hereunder
infringes or violates the Intellectual Property of any third Person.
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(b) Indemnification by Licensee. Subject to Section 15, Licensee shall
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indemnify and hold WU harmless against any and all Losses and Expenses arising
out of or relating to: (i) the material breach of any warranty or the inaccuracy
of any representation of Licensee contained in this Agreement; (ii) the material
breach by Licensee, any Affiliate of Licensee or any MoneyGram Agent of its or
their covenants in this Agreement; or (iii) the use of the Licensed Marks by
Licensee, any Affiliate of Licensee or any MoneyGram Agent in contravention with
the material terms of this Agreement.
(c) Procedure. Each Party shall indemnify the other as set forth in this
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Section 14 provided that: (i) the indemnified party promptly notifies the
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indemnifying party in writing of the claim, provided that the failure to notify
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the indemnifying party shall not relieve it from any liability which it may have
to the indemnified party except to the extent the indemnifying party was
prejudiced by such failure; (ii) WU has sole control of the defense and all
related settlement negotiations with respect to the claim, provided, however,
that Licensee has the right, but not the obligation, to participate in the
defense of any such claim or action through counsel of its own choosing; and
(iii) Licensee cooperates fully to the extent deemed necessary or desirable by
WU, and executes all documents deemed necessary or desirable by WU for the
defense of such claim, provided that WU shall reimburse Licensee for any
reasonable out-of-pocket costs incurred by Licensee in connection therewith.
15. Dispute Resolution. The Parties hereby agree to be bound by and to
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resolve any Dispute in accordance with Article 11 of the Operations Agreement,
the provisions of which are hereby incorporated by reference.
16. Term and Termination.
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(a) Term. Notwithstanding anything to the contrary set forth herein, this
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Agreement (and the license granted herein) shall continue indefinitely unless
terminated as set forth herein.
(b) Termination by Licensee. Licensee may terminate this Agreement in its
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entirety or the license granted herein as it relates to any Territory upon
written notice to WU:
(i) if WU breaches any of its material obligations under this
Agreement which breach is not substantially cured within sixty (60) days
after notice specifying the breach is given by Licensee to WU; or
(ii) for its convenience as of a future date specified in such notice.
(c) Partial Termination of Agreement by WU. If Licensee breaches any of
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its material obligations set forth in Sections 2, 3 or 4 in any Territory
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(determined pursuant to the provisions incorporated by reference in Section 15),
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which breach is not substan-
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CONFIDENTIAL
tially cured within sixty (60) days after notice specifying the breach is given
by WU to Licensee, then, upon written notice to Licensee, WU may terminate the
license granted pursuant to Section 2 with respect to all of the Licensed Marks
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in each Territory in which such breach occurred and was not cured.
(d) Termination by WU of Agreement in its Entirety. WU may terminate this
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Agreement (and the license granted herein) in its entirety, upon written notice
to Licensee, if:
(i) Licensee breaches any of its material obligations under this
Agreement (other than a breach of Sections 2, 3 or 4), which breach is not
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substantially cured within sixty (60) days after notice specifying the
breach is given by WU to Licensee; or
(ii) Licensee becomes insolvent, makes a general assignment for the
benefit of creditors, files a voluntary petition for bankruptcy, suffers or
permits the appointment of a receiver for its business or assets, or
becomes subject to any proceedings under any bankruptcy or insolvency law,
whether domestic or foreign, or has wound up or liquidated, voluntarily or
otherwise, and if such condition or event is not cured or if adequate
assurances are not provided within sixty (60) days of any such event
occurring.
(e) Consequences of Termination of Agreement in its Entirety. Upon
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termination of this Agreement in its entirety for any reason, one-hundred eighty
(180) days after the receipt by Licensee of the notice specified in Section
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16(d) or receipt by WU of the notice specified in Section 16(b) (unless an
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earlier date is specified in a notice under Section 16(b)(ii)): (i) the license
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granted to Licensee shall terminate; (ii) Licensee shall cease all use of the
Licensed Marks in all Territories and in all Languages; (iii) Licensee shall
terminate all sublicenses granted pursuant to this Agreement and cause such
sublicensees (whether such sublicensees are Affiliates of Licensee or MoneyGram
Agents) to cease all use of the Licensed Marks in all Territories and in all
Languages; (iv) the obligations of WU, WU Affiliates and its and their
respective agents set forth in Section 7 shall cease; and (v) Licensee shall
---------
comply with the provisions incorporated by reference in Section 11 as they
----------
related to any Confidential Information (as defined in the Operations Agreement)
of WU obtained by Licensee in connection with the performance by the Parties of
their respective obligations hereunder.
(f) Consequences of Termination of License Relating to a Territory. Upon
--------------------------------------------------------------
termination of the license granted herein with respect to any Territory for any
reason, one-hundred eighty (180) days following the receipt by WU of the notice
specified in Section 16(b) (unless an earlier date is specified in a notice
-------------
under Section 16(b)(ii) or the receipt by Licensee of the notice specified in
-----------------
Section 16(c): (i) the license granted to Licensee with respect to such
-------------
Territory shall terminate; (ii) Licensee shall cease all use of the Licensed
Marks in such Territory and in all Languages in such Territory; (iii) Licensee
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CONFIDENTIAL
shall terminate all sublicenses granted pursuant to this Agreement with respect
to each such Territory and shall cause such sublicensees (whether such
sublicensees are Affiliates of Licensee or MoneyGram Agents) to cease all use of
the Licensed Marks in such Territory and in all Languages in each such
Territory; (iv) the obligations of WU, WU Affiliates and its and their
respective agents set forth in Section 7 as they relate to such Territory shall
---------
cease; and (v) Licensee shall comply with the provisions incorporated by
reference in Section 11 as they relate to such Territory and the applicable
----------
Licensed Marks.
17. Miscellaneous.
-------------
(a) Expenses. Except as otherwise provided herein, each Party shall pay
---------
all Costs incurred by it or on its behalf in connection with the negotiation and
preparation of this Agreement and its performance and compliance with all its
obligations hereunder, including fees and expenses of its own financial
consultants, accountants and counsel.
(b) Relationship of Parties. Nothing in this Agreement shall be deemed by
------------------------
the Parties, or by any third Person, to create a partnership, joint venture or
similar relationship between or among any of the Parties and, except as
otherwise expressly provided herein, no Party shall be deemed to be the agent of
any other Party. No Party has, and shall not hold itself out as having, any
authority to enter into any contract or create any obligation or liability on
behalf of, in the name of, or binding upon any other Party except as specifi-
cally provided herein.
(c) Force Majeure. Each Party shall be excused from the performance of
--------------
obligations (other than payment obligations) under this Agreement, for any
period and to the extent that it is prevented, restricted or delayed from or
interfered with in performing any of its obligations under this Agreement, in
whole or in part, as a result of labor disputes, strikes, work stoppages or
delays, acts of God, severe weather, failures or fluctuations in utilities or
telecommunications equipment or service, shortages of materials or rationing,
civil disturbance, acts of public enemies, blockade, embargo or any law, order,
proclamation, regulation, ordinance or court order or requirement having legal
effect of any judicial authority or Governmental Body, or any other act or
omission whatsoever, whether similar or dissimilar to the foregoing, which are
beyond the reasonable control of such Party (each, a "Force Majeure Event"), and
such nonperformance shall not be a breach or default under this Agreement, or a
ground for termination of this Agreement. Each Party shall give the other
Parties prompt notice of any Force Majeure Event affecting the notifying Party's
ability to perform under this Agreement and shall promptly update the other
Parties regarding the notifying Party's efforts to mitigate and resolve such
Force Majeure Event.
(d) Entire Agreement. This Agreement, including the Exhibits hereto and
-----------------
the provisions of Articles 7 and 11 the Operations Agreement, which WU
acknowledges it has reviewed and understands, constitutes the entire agreement
among the Parties with regard to the subject matter hereof, and supersedes all
other prior agreements, understandings or
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discussions among the Parties concerning the subject matter. There are no
representations, warranties, understandings or agreements (written or oral)
relative to the subject matter hereof which are not expressly set forth herein.
This Agreement may not be amended or modified except in writing signed by an
authorized representative of each Party to this Agreement.
(e) Assignment. Except as otherwise provided herein, the rights and
-----------
obligations of both WU and Licensee under this Agreement are personal and not
assignable, either voluntarily or by operation of law, without the prior written
consent of the other Party. Notwithstanding the foregoing, (i) WU may assign all
its rights and delegate its duties and obligations hereunder to any Affiliate,
provided such Affiliate remains an Affiliate of WU after such an assignment and
that notwithstanding such assignment WU shall remain primarily liable for all of
its obligations hereunder, and (ii) Licensee may assign all its rights and
delegate its duties and obligations hereunder to any Person who purchases
substantially all of the Business, provided the assignee agrees to be bound in
--------
writing to the terms and conditions set forth in this Agreement, and,
notwithstanding such assignment, Licensee shall remain primarily liable for all
of its obligations hereunder. Subject to the foregoing, this Agreement shall
extend to and be binding upon and inure to the benefit of the Parties and their
respective Affiliates, successors and permitted assigns. Nothing in this
Agreement is intended to or shall be construed to confer upon any Person other
than the Parties and their respective Affiliates, successors and permitted
assigns, any right, remedy or claim under or by reason of this Agreement.
(f) Notices. All notices which any Party may be required or desire to give
--------
to any other Party shall be in writing and shall be given by personal service,
telecopy, registered mail or certified mail (or its equivalent) or overnight
courier to the other Parties at their respective addresses or telecopy telephone
numbers set forth below. Mailed notices and notices by overnight courier shall
be deemed to be given upon actual receipt by the Party to be notified. Notice
delivered by telecopy shall be confirmed in writing by overnight courier and
shall be deemed to be given upon actual receipt by the Party to be notified.
In the case of IPS:
Integrated Payment Systems Inc.
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
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With a copy to:
First Data Corporation
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. NP 30
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
In the case of Licensee:
MoneyGram Payment Systems, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
MoneyGram Payment Systems, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
In the case of WU:
Western Union Financial Services, Inc.
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
CONFIDENTIAL
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With a copy to:
First Data Corporation
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. NP 30
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
A Party may from time to time change its address for notification purposes by
giving the other Parties prior written notice of the new address and the date
upon which it shall become effective.
(g) Counterparts. This Agreement may be executed in several
-------------
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(h) Governing Law. Subject to the provisions referenced in Section 15,
-------------- ----------
this Agreement shall be governed by and construed in accordance with the
internal laws (as opposed to the conflict of laws provisions) of the State of
New York.
(i) Survival. The provisions of Sections 5, 11, 12, 13, 14, 15, 16(e),
-------- -------- - -- -- -- -- -- -----
16(f)and 17 shall survive the termination of this Agreement for any reason.
---- --
(j) Waiver. Any term or provision of this Agreement may be waived, or the
------
time for its performance may be extended, by the Party entitled to the benefit
thereof. Any such waiver shall be validly and sufficiently authorized for the
purposes of this Agreement if, as to any Party, it is authorized in writing by
an authorized representative of such Party. The failure of any Party hereto to
enforce at any time any provision of this Agreement shall not be construed to be
a waiver of such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of any Party thereafter to enforce
each and every such provision. No waiver of any breach of this Agreement shall
be held to constitute a waiver of any other or subsequent breach. Except as
specifically provided otherwise, all remedies provided for in this Agreement
shall be cumulative and in addition to and not in lieu of any other remedies
available to any Party at law, in equity or otherwise.
(k) Severability. Wherever possible, each provision hereof shall be
------------
interpreted in such manner as to be effective and valid under applicable law,
but in case any one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
provision shall be ineffective to the extent, but only to the extent, of such
invalidity, illegality or unenforceability without invalidating the remainder of
such invalid, illegal or unenforceable provision or provisions or any other
provisions hereof, unless such a construction would be unreasonable.
CONFIDENTIAL
-15-
(l) Recordation. Licensee shall have the right to prepare and record a
-----------
memorandum of this Agreement or otherwise record notice of its license rights or
permitted user status with respect to the Licensed Marks in the appropriate
office of a Governmental Body, subject to WU's prior review and approval, which
approval shall not be unreasonably withheld or delayed. WU shall cooperate
fully to the extent reasonably necessary, and execute all documents relating
thereto, provided that Licensee shall reimburse WU for any reasonable out-of-
pocket costs incurred by WU in connection therewith.
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CONFIDENTIAL
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to
be executed as of the date first above written.
MONEYGRAM PAYMENT SYSTEMS, INC.
Signed By: _____________________________
Print Name: ____________________________
Title: __________________________________
INTEGRATED PAYMENT SYSTEMS INC.
Signed By: ____________________________
Print Name: ___________________________
Title: _________________________________
WESTERN UNION FINANCIAL SERVICES, INC.
Signed By: _________________________________
Print Name: ________________________________
Title: _____________________________________
CONFIDENTIAL
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