Exhibit 99.B
PURCHASE, DEVELOPMENT, AND DEPLOYMENT AGREEMENT
THIS PURCHASE, DEVELOPMENT, AND DEPLOYMENT AGREEMENT ("Agreement") is
entered as of October, 2000 ("Effective Date") between BIZ Interactive Zone,
Inc. ("BIZ."), a Delaware corporation located at 0000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx, XX 00000, and Wave Systems Corporation ("Wave"), a Delaware corporation
located at 000 Xxxxxxxx Xxxxxx, Xxx, XX 00000.
RECITALS
WHEREAS, Wave is in the business of the design, development, manufacture,
and sale of technologies and services to secure and sell digital content;
WHEREAS, BIZ desires Wave to develop an Embassy-Enabled Product that adapts
the Embassy Chip Technology and other aspects of the Wave System to operate as
an embedded, secure, and open platform for trusted access to digital cable
set-top box and cable and telecommunications gateway environments;
WHEREAS, BIZ desires to retain Wave to develop Applets that facilitate
content preparation, licensed metering, digital rights management, data security
technology and other intellectual or financial electronic transaction management
for use in the health care and education markets;
WHEREAS, BIZ desires to retain Wave to develop SSP Applications that
facilitate content preparation, licensed metering, digital rights management,
data security technology and other intellectual or financial electronic
transaction management for use in the health care and education markets;
WHEREAS, BIZ currently sells its own brand of products ("SSP Products") and
desires to resell SSP Products that contain the Wave Chip Technology, Wave Local
Software and Embassy Applets on a value added and branded label basis.
NOW, THEREFORE, in consideration of the mutual promises contained herein
the parties agree as follows:
1. DEFINITIONS.
"Agreement" means this agreement.
"Applets or Embassy Applets" means specialized software executables that
perform various functions and are loaded from outside the Embassy-Enabled
Product into an Embassy Chip.
"Applet Certification Authority" means the company authorized by Wave to
receive Embassy Applets from developers, certify the ownership and business
relationship of such applets and then encrypt and digitally sign such applets
using authorized codes.
"BIZ/Wave Agreement" means the Technology Licensing and Authorization
Agreement executed on August 18, 2000 by and between BIZ and Wave and a copy of
which is attached hereto as Exhibit A.
"Confidential Information" means all nonpublic information of either party,
in written, oral, graphic, or computer database form concerning technology,
marketing plans, implementation strategies, sales and forecast information,
financial data, future products, and other sensitive trade secret information,
provided that if in written form such information must be marked "Confidential"
or if disclosed orally must be identified as Confidential Information at the
time of disclosure and confirmed in writing as confidential within 30 days after
such oral disclosure. Notwithstanding the foregoing, any oral or written
information provided to either receiving party concerning the details and
requirements under this Agreement and its described technology shall be
considered Confidential Information, regardless of whether such information
is marked or confirmed as confidential. Except for information concerning the
Embassy Clip Technology, Confidential Information does not include information
which: (a) the receiving party can prove it already knew at the time of receipt
from the disclosing party; (b) has come into the public domain without breach of
confidence by the receiving party; or (c) was received from a third party
without restrictions on its use; (d) the receiving party can prove it
independently developed without use of or reference to the disclosing party's
data or information; or (e) which the disclosing party agrees in writing is free
of such restrictions.
"Content" means software, information, and other data distributed via the
Wave System.
"Embassy Chip Technology" means proprietary integrated circuit designs,
consisting of silicon design modules and Embassy Firmware, for an integrated
circuit or portion of an integrated circuit which contains circuits and firmware
specific to the Wave System and which works in conjunction with a computer or
other electronic device such as a cable TV set-top box, and other parts of the
Wave System to execute transactions, locally store usage data, and report that
usage to the parties. The term, Embassy Chip Technology, shall also apply to any
integrated circuit technology utilized by Wave which replaces the current
Embassy Chip Technology, regardless of whether such replacement technology is
referred to by Wave using the name "Embassy," as long as such replacement
technology meets the foregoing description.
"Embassy Chip" means Wave's proprietary integrated circuit design that
contains the Embassy Chip Technology.
"Embassy-Enabled Product(s)" means the product developed pursuant to
Section 2(a), which contains the Embassy Chip Technology, Embassy Firmware
and/or Wave Local Software modified by Wave for BIZ.
"Embassy Firmware" means the firmware, including an operating system, which
is part of the Embassy Chip.
"Field of Use" means the worldwide educational market consisting of public
and private schools and the medical market for patient/doctor record management.
"Intellectual Property Rights" means all current and future trade secrets,
copyrights, patents and other patent rights, trademark rights, service xxxx
rights, mask work rights and any and all other intellectual property or
proprietary rights now known or hereafter recognized in any jurisdiction.
"Net Wave Revenue" means all revenue collected from the sale, licensing, or
rental of Content decrypted and metered via the Wave System and Embassy-Enabled
Products distributed by BIZ or its sublicensees, less payments actually made to
third parties for the furnishing or delivery of Content, third-party transaction
and processing fees (including without limitation credit-card and "electronic
cash" transaction fees), shipping and handling charges, excise, sales, use, and
turnover taxes, custom duties, charges for credit, collections, and bad debt,
and credits for returns, and other customary and normal trade credits.
"Permission or Permissioned" means the process of authorizing a validly
signed Embassy Applet to be loaded into an Embassy-Enabled Chip through the
secure interaction between the Applet Certification Authority and the Trust
Assurance Network.
"Project" means the development of the Embassy-Enabled Product pursuant to
Section 2 of this Agreement.
"Specifications" means the specifications for the development of the
Embassy-Enabled Product to be agreed upon by the parties immediately following
execution of this Agreement.
"SSP BIZ/Wave Applications" means the applications Wave develops for and
licenses to BIZ upon request by BIZ, provided, however that the parties shall
maintain joint ownership of all such SSP Applications.
"Trust Assurance Network" means the computer servers which administer the
core security functions for the Wave System, such as dispensing unique codes or
"keys" to initiate or "personalize" each unit of Embassy-Enabled Product,
registration of such units, and Embassy Applet Permissioning. The Trust
Assurance Network also includes the computer servers which encrypt and sign and
certify ownership for Embassy Applets so that they can be distributed to
Embassy-Enabled Products.
"Wave Intellectual Property" means all current and future worldwide patents
and other patent rights, copyrights, trademarks, trade secrets, know-how, source
code and all other intellectual property rights and the related documentation
thereof exclusively owned by Wave, including but not limited to, the Wave
System.
"Wave Local Software" means the object-code version of device drivers,
application frameworks, utilities, and other software furnished by Wave to BIZ
in object-code from which are loaded on Embassy-Enabled Products to facilitate
communication and interoperability between Embassy Chips, the Embassy-Enabled
Products on which such software is loaded, and other components of the Wave
System.
"Wave System" means a computer-based system which facilitates the
personalization of Embassy-Enabled Products, the creation and certification of
Embassy Applets, the Permissioning and distribution of such Applets, the
distribution or rental of Content for a fee, the measuring of usage of Content,
the billing and collection for such usage, and includes, but is not limited to,
Wave's servers, hardware, devices, applications and protocols, Embassy Chip
Technology, Embassy Firmware, Applets and SSP BIZ/Wave Applications.
2. DEVELOPMENT OF THE EMBASSY-ENABLED PRODUCT
(a) Wave agrees to develop the Embassy-Enabled Product, to be used with an
embedded secure and open applet environment for the cable set-top box, other
related delivery platforms for set top boxes or home gateways powered and/or
controlled by Broadcom Corporation, or vendors of silicon microprocessors, the
development of which shall be pursuant to the terms and conditioned set forth in
this Agreement. Such development shall be limited to the integration of Embassy
Chip Technology into no more than two chipsets, including the software
development required to port related drivers and software to support two set top
or home gateway operating systems. Wave agrees to develop the Embassy-Enabled
Product pursuant to the development schedule in Section 3. Wave and BIZ shall
jointly agree upon the selection of chipsets and operating systems that will be
integrated.
(b) Wave agrees to work with BIZ to integrate the technologies necessary to
develop the Embassy-Enabled Product. The terms and conditions of integration
shall be pursuant to a separate agreement between the parties.
(c) BIZ agrees to provide all necessary assistance to Wave in order for
Wave to complete the Project.
(d) Wave agrees to develop for and license to BIZ the SSP Applications in
Attachment A, which shall utilize the Wave System and Wave services.
(e) Wave agrees to work with Broadcom, through BIZ, to integrate the
EMBASSY technology into selected Broadcom PC chips for peripherals or adapters
supported by the Windows operating system. Wave will also make any necessary
changes for the EMBASSY Local software and Wave applications to support the new
chip implementations of the EMBASSY technology.
3. SCHEDULE OF DEVELOPMENT.
(a) The development of the Project shall be pursuant to the schedule set
forth in an agreement, which shall be modified by the parties from time to time.
(b) BIZ and Wave shall each assign a full time project manager who shall be
responsible for (i) facilitating the development of the Embassy-Enabled Product
under the Agreement and (ii) performing general management functions in
representation of their respective company's objectives under this Agreement.
4. GRANT OF LICENSES.
(a) Pursuant to the terms and conditions of this Agreement, including the
conditions set forth in Section 5, Wave grants BIZ:
(i) an exclusive, worldwide, license, to distribute the Embassy-
Enabled Product, developed in Section 2(a), to Broadcom, Conexant, EDS, Cap
Gemini/Ernst & Young and Deloitte & Touche, pursuant to Wave's standard terms
and conditions.
(ii) an exclusive, worldwide, license to distribute and to sublicense
the SSP Applications developed by Wave in Section 2d, to Broadcom, Conexant,
EDS, Cap Gemini/Ernst & Young and Deloitte & Touche in the Field the Use,
pursuant to Wave's standard terms and conditions.
(iii) a non-exclusive, worldwide, license to distribute and to
sublicense the SSP Applications, developed by Wave in Section 2d, outside the
Field the Use and pursuant to Wave's standard terms and conditions.
5. CONDITIONS AND RESTRICTIONS.
(a) The exclusive license granted in Section 4(a)(i) and 4(a)(ii) shall
be terminated in the event:
(i) BIZ fails to secure a contract with Broadcom to integrate the
Embassy Chip Technology in at least one chipset by September 2001, unless Wave
has not completed and delivered the applications required to secure the contract
with Broadcom, in which event the period of time shall be extended to six months
after the delivery of such applications; or
(ii) BIZ fails to produce a set-top box that includes the Embassy-
Enabled Product within eight months after the contract between BIZ and Broadcom
is executed.
(b) BIZ agrees that the Wave System is an open system and that generally
available components or services available from Wave may be used by third
parties to build competitive solutions to the SSP application's the field of
use.
(c) Wave agrees to provide a reasonable amount of support to BIZ to
integrate the Embassy-Enabled Product into authorized third party products.
6. TRADEMARK RIGHTS.
BIZ requests and Wave agrees to provide certain markings and
identification, which includes the trademark(s) and/or trade name of BIZ and
"SSP", on the Embassy-Enabled Products ordered and delivered to BIZ. Such
markings and trademarks shall be marked in accordance with the requirements of
BIZ provided that any such BIZ trademarks and/or trade names shall, in Wave's
reasonable determination, be compatible with Wave's trademarks, trade names
and/or copyright notices contained on the Embassy Enabled Products.
7. FEES
(a) BIZ agrees to prepay license fees for the distribution of the Embassy-
Enabled Product and Applets. These prepaid fees are not refundable and will be
paid over a fifteen (15) month period. The total license fee paid will be
$8,000,000 US Dollars with $2,000,000 US Dollars paid on every subsequent 90th
day anniversary (or next business day) due and payable over a fifteen (15) month
period from the date of execution of this Agreement. Wave agrees to supply BIZ
with 10 million permissioned Applets and 5 million prepaid licenses for the
Embassy Enabled Product.
(b) BIZ shall pay Wave a development fee of $2,000,000 US Dollars for the
development of the SSP Applications within thirty (30) days after the effective
date of this Agreement.
(c) Fees for the Embassy-Enabled Product shall be F.C.A. origin (Seller's
shipping dock). All such fees are exclusive of the costs of transportation,
insurance, taxes, customs, duties, landing, storage and handling fees, and/or
documents or certificates required for exportation or importation, which will be
separately itemized and billed to BIZ in accordance with the billing and payment
provisions of this Agreement.
(d) Any payment that is not received by Wave within fifteen (15) days
after it is due shall bear interest at a rate equal to one and one half percent
(1-1/2%) per month or the highest rate permitted by applicable law, whichever is
less, on the unpaid amounts outstanding from the date such amounts became due
and owing until paid in full.
8. DELIVERY SCHEDULE.
(a) The delivery dates for the Embassy-Enabled Product to BIZ shall be
agreed upon within thirty (30) days after the Effective Date of this Agreement,
pursuant to a separate written agreement. The delivery schedule shall be agreed
upon by each party's Project Manager, and subject to change from time to time
upon written notice to the other party.
(b) Wave agrees to immediately notify BIZ in writing of any anticipated
delays in delivery, provided that Wave shall notify BIZ in writing setting forth
the reasons for such delay.
9. COMMODITY CLASSIFICATION.
Wave shall provide BIZ with a copy of the Commodity Classification for the
Embassy-Enabled Product or, if this is not available, Wave shall provide BIZ
with the ECCN that was used by Wave for self certification. A copy of the
Commodity Classification is required for any product containing security or
encryption technology. In addition, Wave shall advise BIZ as to any license
exception, if applicable, pursuant to which the Embassy-Enabled Product may be
exported.
10. ACCEPTANCE.
Prior to acceptance of the Embassy-Enabled Product, BIZ shall test such
Embassy-Enabled Product at BIZ's facility to determine conformance with the
Specifications which shall be set forth in a future attachment to this Agreement
or with the parties' agreed-upon testing and acceptance criteria, BIZ shall
notify Wave of such failure and the parties will promptly discuss means to
resolve any such failure. Wave shall have up to thirty (30) days (or such longer
period as the parties may agree) to deliver to BIZ a conforming Embassy-Enabled
Product. If Wave fails to deliver such conforming Embassy-Enabled Product within
such thirty (30) day period, absent separate a agreement, BIZ shall have the
right, without liability, to either cancel continued development for that
Embassy-Enabled Product and any other products, the acceptance of which is
impractical in BIZ's reasonable opinion as a result of Wave's failure to meet
the Specifications, or require expedited shipping of the conforming Embassy-
Enabled Products at Wave's sole cost. After initial acceptance of the Embassy-
Enabled Product or a modified Embassy-Enabled Product, further deliveries of
such Embassy-Enabled Product shall be deemed accepted upon delivery.
11. INSPECTION RIGHTS.
BIZ shall have the right to perform vendor qualifications and/or on-site
source inspections at Wave's development or manufacturing facilities. If an
inspection or test is made on Wave's premises, Wave shall provide BIZ's
inspectors reasonable access to the facilities and reasonable assistance at no
additional charge. BIZ must provide Wave a minimum of ten (10) days prior notice
of such inspection. Such inspection shall be conducted during normal business
hours and in compliance with Wave's safety and security requirements.
12. REGULATORY AGENCY COMPLIANCE.
All Embassy-Enabled Products delivered, hereunder shall comply in all
material respects with the regulatory agency requirements.
13. ENGINEERING CHANGE.
In the event that BIZ determines that the Embassy-Enabled Product requires
further technical modifications, BIZ shall provide Wave with written notice
detailing the proposed modifications and Wave shall in good faith determine the
feasibility of implementing such proposed modifications. If Wave determines that
it is feasible to implement the modifications, Wave and BIZ agrees to work
together in good faith to implement such modifications to the Embassy-Enabled
Product.
14. ENGINEERING CHANGE ORDERS.
Wave shall provide reasonable prior written notice to BIZ of any material
change, improvement, enhancement or update that affects the form, fit or
function to the Embassy-Enabled Product, or to any related product, or any
changes to Wave's part number for a Embassy-Enabled Product prior to its
implementation. BIZ shall respond in writing to Wave's notice of any material
change, improvement, enhancement or upgrade within twenty-one (21) days after
receiving such notice. If BIZ does not receive such a response from Wave, the
material change, improvement, enhancement or upgrade shall be deemed accepted.
Wave may shorten BIZ's response time if the change is intended to improve safety
or reliability. At Wave's request, the parties shall work together in good faith
to implement any changes, improvements, enhancements, upgrades or other
modifications to the Embassy-Enabled Products.
15. REJECTION OF CHANGE ORDERS.
BIZ shall not unreasonably withhold acceptance of a proposed change,
provided, however, that BIZ may reject a proposed change for good cause. If BIZ
rejects a proposed change, the parties will discuss in good faith alternatives
to such rejection. Upon rejection of any proposed change, BIZ shall be entitled
to terminate in whole or in part, any affected Embassy-Enabled Product remaining
undelivered.
16. UNAUTHORIZED CHANGES.
If an ECO is implemented without the written approval of BIZ, Wave shall be
liable for repair and/or rework of all Embassy-Enabled Products affected,
including to, but not limited to, Embassy-Enabled Products in transit, product
in Finished Good Inventory, and any Embassy-Enabled Product located with a
reseller or at an end user location.
17. OWNERSHIP OF INTELLECTUAL PROPERTY.
For any joint conception, invention and development of technology, the
parties agree that all Intellectual Property Rights conceived, created, made, or
first fixed in a tangible medium of expression during the term of this Agreement
shall be as follows: (i) joint Intellectual Property Rights when accomplished by
either party's personnel. Wave and BIZ agree that throughout the term of this
Agreement they shall cooperate reasonably and in good faith to decide jointly
the manner in which their respective interests in Joint Intellectual Property
shall be perfected and enforced. Specifically, Wave and BIZ shall jointly
decide: (i) the subject matter for which patent applications and applications
for copyright registrations will be prepared; (ii) the resources to be utilized
in the preparation and prosecution of such applications; (iii) the parties'
rights to review and/or approve such applications and other papers prior to
filling in, or submission to, the patent, copyright and trademark offices in the
United States; (iv) the allocation of expenses incurred in the preparation,
prosecution and maintenance of patent applications, patents, and copyright
registrations and the like; (v) matters regarding the enforcement, through
litigation, licensing or otherwise of the Joint Intellectual Property against
third parties; and (vi) the manner in which revenue resulting from enforcement
of Joint Intellectual Property will be shared between Wave and BIZ. Should a
party choose not to participate in securing or protecting an element of Joint
Intellectual Property (by notifying the other party in writing to such effect),
the other party may secure or protect its claims to such Joint Intellectual
Property and shall be entitled to reap the benefit of its efforts without
accounting to the other party, including without limitation retaining the full
amount of any settlement, or damage award from a third party.
INFRINGEMENT BY THIRD PARTIES. If either party learns of any
possible infringement or misappropriation of the other party's Intellectual
Property Rights related to the Products, it shall immediately give notice
thereof to the other party. Each party agrees to cooperate with the infringed
party's reasonable efforts to seek legal remedies for such infringements and
misappropriations.
ALTERATION OF THE PRODUCT. All modifications to the Products shall be done
jointly by the parties or by prior joint written consent of the
pasties. No modifications will be made that would result in a violation of the
license restrictions set forth in this Agreement or the BIZ/Wave Agreement.
18. INDEMNIFICATION.
(a) Subject to the provisions of Section 18c and 18d, Wave shall defend,
indemnify, and hold BIZ and its sublicensees harmless against any claim that
(i) the Embassy Chip Technology or other portions of the Wave System infringe a
patent, copyright, or trade secret of a third-party when used in accordance with
the terms of this Agreement, (ii) Wave's trademarks or service marks infringe
the trademark rights of a third party when used in accordance with the terms of
this Agreement, or (iii) the Wave System or any act or omission of Wave or its
agents causes damages to a third party. BIZ agrees to look to Wave only, and not
to its' Authorized Chip Supplier, for indemnity regarding a problem with the
Wave System or the Embassy Chip Technology as embodied in the Embassy-Enabled
Products.
(b) Subject to the provisions of Section 18c and 18d, BIZ shall defend,
indemnify, and hold Wave harmless against any claim that (i) BIZ's or its
sublicensees' Embassy-Enabled Products infringe a patent, copyright, or trade
secret of a third-party, unless such infringement would not have occurred but
for the incorporation of the Embassy-Enabled Chip into such Embassy-Enabled
Product, (ii) BIZ's trademarks or service marks infringe the trademark rights of
a third party when used in accordance with the terms of this Agreement, or (iii)
BIZ'S or its sublicensees' Embassy-Enabled Products (other than the Embassy Chip
Technology) or any act or any act or omission of BIZ or its agents causes
damages to a third party.
(c) In providing indemnification under Sections 18a or 18b, the
indemnifying party shall have the right, at its option, either to obtain for the
indemnified party the right to continue using the allegedly infringing
technology, substitute other technology with equivalent functional capabilities,
or modify the technology so that it is no longer infringing while retaining
equivalent functions. If such options are not reasonably available, the
indemnified party's exclusive remedy shall be to terminate this Agreement and to
cease using the technologies in question.
(d) As conditions of the indemnified party receiving indemnification under
Sections 18(a) or 18(b), the indemnifying party must receive (i) prompt notice
of a claim of infringement; (ii) the right to control the defense against such
claim and related settlement negotiations; and (iii) reasonable cooperation from
the indemnified party.
19. WARRANTIES.
(a) Each party represents and warrants to the other that it has full
corporate power and authority to enter into this Agreement and perform its
terms, and that neither the execution of this Agreement nor the performance of
its terms shall constitute or result in a breach or default in any agreement,
commitment or understanding to which it is a party and this Agreement is the
valid, binding, and enforceable agreement of such party.
(b) The warranty, if any, offered by Wave to its end-users is the entire
warranty made by Wave concerning the Wave System. If BIZ receives complaints
from its customers concerning the Wave System, then BIZ's sole remedy shall be
to seek indemnity pursuant to Section 18(a). WAVE MAKES NO WARRANTIES, EXPRESS
OR IMPLIED, TO BIZ OR BIZ'S SUBLICENSEES CONCERNING THE WAVE LOCAL SOFTWARE, THE
EMBASSY CHIP TECHNOLOGY, OR THE WAVE SYSTEM. WAVE SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BIZ
shall not enlarge upon or alter the foregoing provision on behalf of Wave with
respect to BIZ'S sublicensees.
20. TERM AND TERMINATION.
This Agreement shall commence on the date first written above and, shall
continue in force until terminated as provided herein. This Agreement can be
terminated by either party upon written notice to the other for a material
breach of this Agreement by the other party, which is not cured within 30 days
after receipt of written notice of such breach. The tern of this Agreement shall
be for three years, with an option to extend for a mutually agreed upon period,
if the parties so wish.
21. LIMITATION ON LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) RESULTING FROM THE BREACH OR
TERMINATION OF THIS AGREEMENT. Except for liability under Sections 18 or 22, the
liability of the parties to each other under this Agreement shall not exceed the
amount of fees paid to BIZ by Wave hereunder.
22. CONFIDENTIALITY.
During the term of this Agreement, each party to this Agreement may
disclose certain "Confidential Information" to the other party. Each party shall
refrain from using any and all Confidential Information of the other party for
any purposes or activities other than those specifically authorized in this
Agreement. Except as otherwise specifically permitted herein or pursuant to
written permission of the party to this Agreement owning the Confidential
Information, neither party shall disclose or facilitate disclosure of
Confidential Information of the other party to anyone without the prior written
consent of the other party, except to its employees and to consultants who need
to know such information for carrying out the activities contemplated by this
Agreement and who agree to be bound by the requirements of this Section. Without
obtaining the other party's prior written consent, neither party shall copy or
duplicate any Confidential Information of the other party by any means or
technique except that, unless otherwise expressly restricted herein, both
parties are permitted to make those copies which are necessary for their
internal company use or which are necessary to carry out the terms of this
Agreement. All files, lists, records, documents, charts, specifications, and
computer programs which incorporate or refer to all or a portion of the
Confidential Information shall remain the sole property of the owner thereof.
Such materials shall be promptly returned or destroyed (i) upon the owner's
reasonable request, or (ii) upon termination of this Agreement as provided
herein, whichever is earlier.
23. EXPORT LAW COMPLIANCE.
Neither party will export or reexport, directly or indirectly, the Embassy-
Enabled Products or technical data acquired under this Agreement or the "direct
product" of software programs or such technical data to any country for which
the United States Government or any agency thereof, at the time of export,
requires an export license or other governmental approval, without first
obtaining such license or approval. The term "direct product" as used herein
means the immediate product (including processes and services) produced directly
by the use of the technical data or software programs. Both parties will
cooperate, to effect compliance with all applicable import and/or export
regulations. In addition, the parties agree to comply with all applicable local
country import and/or export laws or regulations in the country(ies) of
procurement, production and/or end destination of the Embassy-Enabled Product.
Both parties understand that the foregoing obligations are legal requirements
and agree that they shall survive any term or termination of this Agreement.
24. ASSIGNMENT.
Except as specifically permitted herein, neither party shall assign the
licenses or its duties or responsibilities under this Agreement without the
express written permission of the other party. The foregoing prohibition shall
not apply in the case of a sale of all or substantially all of a party's assets
or stock, or merger. This Agreement shall be binding upon and inure to the
benefit of a party's permitted successors and assigns.
25. CHOICE OF LAW/DISPUTE RESOLUTION.
This Agreement shall be governed and interpreted under the laws of the
State of California, excepting those portions related to conflicts of laws.
Except with matters requiring an injunction, any dispute arising out of or
relating to this Agreement, or breach thereof, shall be first submitted to the
senior management of each party for resolution. If the dispute cannot be
resolved within 30 days after such matter is referred to senior management, then
the dispute shall be submitted to binding arbitration in the English language in
Santa Xxxxx County, California and in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA") then in effect. The
arbitration shall be conducted by a single arbitrator mutually acceptable to
both parties. If the parties cannot agree on a single arbitrator, then the San
Francisco office of the AAA shall appoint the arbitrator. In any event, the
arbitrator shall have extensive experience with matters concerning computers and
integrated circuits. All discovery must be concluded within 60 days after the
submission to arbitration. The decision of the arbitrator shall be final and may
be entered as judgment in any court of competent jurisdiction. The arbitrator
shall determine the allocation of arbitration costs and reasonable attorneys'
fees between the parties according to the relative merits of each party's case.
EACH PARTY HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY. Notwithstanding the
foregoing, this arbitration clause shall not apply to any action for injunctive
relief brought by either party for the purpose of protecting or enforcing rights
in any intellectual property, whether patent, trademark, trade secret,
copyright, or otherwise, or in any Confidential Information. In the event of
misuse or infringement, actual or threatened, of any Confidential Information or
intellectual property rights, notwithstanding anything else in this Agreement,
and in addition to any other relief or remedy available, either party, without
first resorting to the 30 day resolution procedure described above, shall be
entitled to seek and obtain relief and orders from the courts and other
authorities, including an injunction restraining violations of obligations with
respect to Confidential Information and intellectual property.
26. NOTICES.
Unless otherwise provided, any notice to be given hereunder shall be in
writing and shall be effective when received. Such notice shall be sent by first
class mail, postage prepaid and marked for delivery by Certified or Registered
mail, return receipt requested, or other form of receipted delivery, addressed
to receive the notice at the address given for it below. Any changes for such
notices may be specified by written notification to the other party made
following the requirements in this Section 33.
President CEO
Wave Systems Corp. Biz Interactive Zone
000 Xxxxxxxx Xxxxxx 0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx, Xxxxxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxx 00000
27. HEADINGS.
The various headings and sections of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
28. WAIVER.
The waiver by either party of a breach or default in any of the provisions
of this Agreement by the other party shall not be construed as a waiver of any
succeeding breach of the same or other provisions. Any delay or omission on the
part of either party to exercise or avail itself of any right, power or
privilege that it has or may have hereunder operate as a waiver of any breach or
default by the other party. Any single or partial exercise of any right or
remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right or remedy granted hereby or by law.
29. FORCE MAJEURE.
Neither party shall be liable to the other party for any delay or omission
in the performance of any obligation under this Agreement, other than an
obligation to pay money, where the delay or omission is due to any condition
beyond the reasonable control of the party obliged to perform, including but not
limited to, strikes or other labor difficulties, acts of God, electrical power
or communications outages, acts of government, war, riots, or embargoes.
30. SEVERABILITY.
Whenever possible, each provision of this Agreement shall be interpreted in
such a manner as to be effective and valid under applicable law. In the event
that any provisions contained in this Agreement are held to be unenforceable,
this Agreement shall be construed without such provisions.
31. RELATIONSHIP OF THE PARTIES.
The relationship of the parties established by this Agreement is of
contracted developer or independent contractors, and nothing in this Agreement
shall be construed to give either party the power to direct or control the daily
activities of the other party; or constitute the parties as principal and agent,
employer and employee, partners, joint venturers, co-owners or otherwise as
participants in a joint undertaking. The parties understand that, except as
specifically provided for in this Agreement, neither party grants the other
party the power or authority to make or give any agreement, statement,
representation, warranty, or other commitment on its behalf, or to enter into
ally contract or otherwise incur any liability or obligation, express or
implied, on its behalf, or to transfer, release, or waive any of its rights,
title or interests. Neither this Agreement nor any terms and conditions
contained herein shall be construed as granting a franchise as defined by state
law or 16 CFR Section 436.2(a).
32. MODIFICATION OF AGREEMENT.
This Agreement shall not be modified, amended or in any way altered except
by an instrument in writing signed by both parties. Approval or consents
hereunder of a party shall also be in writing.
33. ENTIRE UNDERSTANDING.
The parties acknowledge that they have read this entire Agreement and that
this Agreement and the Exhibits attached hereto, which are incorporated into and
made part of this Agreement, constitute the entire understanding between the
parties with respect to the subject matter hereto and in the event any terms or
conditions of prior Agreements including Exhibits attached hereto, between the
parties are in conflict or are contradictory to the terms and conditions stated
in this Agreement, the terms and conditions of this Agreement supersede all
prior or contemporaneous agreements between the parties whether oral or written
relating to the same subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
WAVE SYSTEMS CORP. BIZ INTERACTIVE ZONE
____________________________________ _____________________________________
Authorized Signature Authorized Signature
____________________________________ _____________________________________
Printed Name Printed Name
____________________________________ _____________________________________
Title Title
Attachment A
Project 1
Work with BIZ's partners to build a solution for schools to have multiple
private networks for students and teachers. This network would include secure
access to web pages, Encrypted data stored on servers, Document distribution,
secure Email attachments. The system can be administered by teachers and or IT
dept will not expose keys to any users.
Project 2
Worked with BIZ's and through BIZ, it's partners such as EDS and Cap
Gemini/Ernst and Young; to build a embedded secure open platform solution of
Embassy Applets for medical information distribution, accountability, and
linking to appropriate electronic business transaction functionality that meets
or exceeds HIPAA standards or regulations.
