EXHIBIT 99.2
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For Euronet use only
License Agreement Number:________________________
Effective Date:______________________
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Software License Agreement
For A Euronet USA Inc. Software Solution
This Software License Agreement ("Agreement") is between Euronet USA Inc.,
having corporate offices at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ and its Affiliates (formerly d/b/a Arkansas Systems, Inc.)
(hereinafter "Euronet"), and the Customer identified below.
Customer: ALLTEL Information Services, Inc.
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Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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City: Maitland
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▇▇▇▇▇/▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Country: United States
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FAX: (▇▇▇)▇▇▇-▇▇▇▇
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E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
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Phone Number(s): (▇▇▇)▇▇▇-▇▇▇▇
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Billing Contact Person: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Project Contact Person: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Authorized Representative: ▇▇▇▇ ▇▇▇▇▇▇▇▇, President, Integrated Financial
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Solutions
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This Agreement consists of this License Agreement and the Exhibits indicated
below:
Exhibit A is left intentionally blank.
X Exhibit B - Licensed Programs, Pricing, Terms and Conditions
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X Exhibit C - Required Hardware and Software
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X Exhibit D - Maintenance and Support Services
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X Exhibit E - Installation and Acceptance
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X Exhibit F - Incident Resolution
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X Exhibit G - Disclosure Regarding Virus Warranty
X Exhibit H - Disclosure Regarding Embedded Third Party Products
This Agreement may also include additional Schedules and Attachments as noted
herein.
For valuable consideration provided under this Agreement, the receipt and
sufficiency of which is acknowledged, and in consideration of the mutual
promises and covenants reflected herein, Customer and Euronet agree as follows:
page 1
1. DESCRIPTION
The licenses granted by Euronet to Customer under this Agreement include a
license for Euronet's Licensed Programs as defined below and described in
Exhibit B.
2. EFFECTIVE DATE.
This Agreement is effective as of January 4, 2002 ("Effective Date").
3. TERM.
This Agreement shall commence on its Effective Date and shall remain in effect
perpetually (the "Term").
4. DEFINITIONS
For purposes of this Agreement, the following definitions apply:
A. "Adverse Consequences" shall mean all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands, injunctions,
judgements, orders, decrees, rulings, damages, dues, penalties, fines, costs,
amounts paid in settlement, liabilities, obligations, taxes, liens, losses,
expenses and fees, including court costs and reasonable attorneys' fees and
expenses.
B. "Affiliate" shall mean an entity that is a successor of, controls, is
controlled by or is under common control with a party.
C. "Asia/Pac" shall mean Asia and the islands of the Indian Ocean,
Australia and the islands of the Pacific Ocean, except U.S. states and
territories.
D. "Client(s)" shall mean an entity doing business with Customer and
utilizing one or more of Customer's loan or deposit products.
E. "Client-Side Software" shall mean those modules of the Licensed
Programs that reside or, via the internet, are stored on a client's computer
equipment and that assist in communicating with Customer's EFT Network or with a
remote processor.
F. "Critical Errors" shall mean any incident of a severity level of
Level 4 or higher as described in Exhibit F (Incident Resolution).
G. "Customer" shall include Customer's wholly and majority owned
subsidiaries. Customer agrees to be responsible for any breach of the terms of
the Agreement by any such subsidiaries.
H. "Customer Modifications" shall mean any products or works, including
enhancements and derivative works, developed by Customer or for Customer by a
third party based on the Licensed Programs including Source Materials licensed
hereunder and Documentation and any modifications or enhancements to or
derivative works based on such products or works that are developed by or for
Customer. Customer Modifications do not become part of the Licensed Programs
under the Agreement.
I. "Delivery" shall mean the date a modified or unmodified Licensed
Program or Update, as applicable, is received physically by the Customer.
J. "Developments" shall mean any products or works developed by or for
Euronet in the course of providing any services under this Agreement.
Developments become part of the Licensed Programs under the Agreement.
Developments shall not include any Customer Modifications.
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K. "Documentation" shall mean all of the following: all existing
flowcharts, user guides and manuals, reference manuals, procedure manuals,
technical standards, naming conventions, architecture diagrams, programmer
reference manuals, transaction formats, messaging, data dictionary and other
printed, written or visually perceptible materials relating to or describing the
installation, use or design of the Licensed Programs software. Upon execution of
this Agreement, Euronet shall promptly deliver to Customer the Documentation in
both electronic format and in hard copy. The Documentation for version 2.2 shall
be sufficient and adequate to enable a person of reasonable skill and experience
in the relevant art to operate the Licensed Programs. "Documentation" shall also
include all versions, updates, and modifications of the Documentation provided
to Customer pursuant to this Agreement.
L. "EFT Network" shall mean the data centers and communications facilities
through which Customer provides electronic funds transfer transaction
processing, POS or ATM driving or card management services to clients utilizing
the Licensed Programs. During the Restriction Period, Customer shall provide
Euronet with a list of the addresses of the data centers where the Licensed
Programs are installed, and shall update such list from time to time.
M. "EFT Network Services" shall mean services provided by Customer using
Customer's EFT Network.
N. "EFT Processing Services" shall mean the operation, management or
monitoring of ATMs or POS devices or acquiring transactions on such devices. EFT
Processing Services shall not include authorization of transactions against the
Customer's host deposit or loan system.
O. "EMEA" shall mean Europe, the Middle East and Africa.
P. "Error" shall mean any corrections to the Licensed Programs to comply
with performance warranties set forth in Section 10.A.ii. (1) and (2).
Q. "Installation" shall mean the activities described in Exhibit E.
R. "Installation Date" shall mean the earlier of the Acceptance Date (as
defined in Exhibit E) or the date that is one hundred eighty (180) days after
the Effective Date.
S. "Intellectual Property" shall mean: (I) title and/or ownership, (ii)
copyright, (iii) patent rights, (iv) trade secret rights, (v) moral rights, (vi)
ideas, know-how, and/or techniques, (vii) data model, and where applicable, and
(viii) trademark rights.
T. "Licensed Programs" means the Euronet AS400 software and associated PC
programs identified in Exhibit B, including the Source Materials, for which
Customer is granted a license pursuant to this Agreement, and the media,
Documentation and Updates therefore provided by Euronet pursuant to the terms of
this Agreement.
U. "Licensed Service Bureau" shall mean a Client authorized by Customer to
use the Licensed Programs to provide services to Clients, and utilizing
Customer's loan or deposit software products, and who has a written agreement
with Customer that protects the Confidential Information and Licensed Programs
as required under this Agreement.
V. "Ordinary Course of Business" shall mean the ordinary course of
business of Seller consistent with past custom and practice (including with
respect to quantity and frequency).
W. "Restriction Period" shall mean the period beginning on the Effective
Date and ending on the date that is five (5) years (together with any
modifications to the five (5) years in accordance with Section 5.A.v or
15.B.iii.b. of the Agreement) from end of the Update Period.
X. "ROW" shall mean that part of the world not included in EMEA, Asia/Pac,
the United States, and United States territories).
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Y. "Services" shall mean, collectively, the Professional Services (as
defined in Section 8), the Warranty Services (as defined in Section 10), the
Maintenance Services (as defined in Exhibit D) and the Support Services (as
defined in Exhibit D).
Z. "Source Materials" shall mean source code (excluding DDS listings) from
which object code is compiled and related Documentation. Encrypted code
generated by Euronet products is not considered to be source code. Source
Materials are part of the Licensed Programs under the Agreement.
AA. "Standard Licensed Programs" shall mean the Licensed Programs listed in
Exhibit B without any modifications.
AB. "Update" means any subsequent modification, enhancement or a subsequent
release of a Licensed Program (including Developments but excluding Errors) that
Euronet makes generally available to Licensed Program licensees at no additional
license fee. Update shall also include Versions.
AC. "Update Period" shall mean the shorter of (i) the eighteen (18) month
period following the Installation Date or (ii) the period from the Installation
Date through the date that the last Update is received by Customer prior to
written notice from Customer that Customer no longer desires to receive Updates.
Notwithstanding the definition of Update set forth in this Agreement, solely for
the purpose of determining the Update Period, neither Developments nor
enhancements for messaging, modules or programs required to support Europay
MasterCard Visa chip-based cards shall be considered Updates.
AD. "Versions" shall mean new software that is issued when the core
architecture is changed significantly, and which is identified as "version 3.X"
or higher.
AE. "Warranty Period" shall mean with respect to Version 1.5, the eighteen
(18) month period following the Effective Date and with respect to Version 2.2,
the eighteen (18) month period following the Acceptance Date.
5. LICENSED PROGRAMS AND SOURCE MATERIALS LICENSE
▇. ▇▇▇▇▇ OF LICENSE AND AUTHORIZED USES
Euronet grants to Customer, as of the Effective Date, a non-exclusive,
perpetual, worldwide, royalty-free, irrevocable and non-terminable license to
use each Licensed Program in accordance with the terms of this Agreement. During
the Update Period, Euronet shall provide to Customer code for all Updates, and
such Updates shall become a part of the Licensed Programs for purposes of the
licenses granted in this Section 5. At the time of Delivery of each modification
or enhancement to the Licensed Programs, Euronet shall provide notice to
Customer of whether such modification or enhancement constitutes an Update for
purposes of measuring the Restriction Period. Euronet shall deliver all such
Updates in electronic source text and object form to meet the requirements of
the Standard Licensed Programs and Customer shall be responsible for
incorporating the code and making the system modifications to be compatible with
Customer's modified version of the code.
i. Distribution License. Subject to the terms and conditions of this
Agreement Euronet grants to Customer a nonexclusive, nontransferable,
perpetual, irrevocable and non-terminable license to:
a. as of the Acceptance Date, use distribute and provide
the Licensed Programs, including but not limited to Customer
using the License Programs to provide outsourcing and/or
service bureau services and Customer providing Licensed
Service Bureaus with the right to provide outsourcing and/or
service bureau services; and
b. combine the Licensed Programs with other software; and
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c. reproduce the works therein in copies; and
d. as of the Acceptance Date, sublicense, directly or via
sub-sublicenses through Licensed Service Bureaus, source or
object code for the Licensed Programs and Documentation,
alone or in combination with other works; and
e. market and promote the Licensed Programs and Documentation;
and
f. support and maintain the Licensed Programs and
Documentation; and
g. use the Licensed Programs and Documentation to provide EFT
Network Services and, in connection therewith, provide to
third parties (including but not limited to Clients) the
relevant Client-Side Software.
ii. Development License. Subject to the terms and conditions of this
Agreement, Euronet grants to Customer a nonexclusive, perpetual,
worldwide, royalty-free, irrevocable and non-terminable license
to modify, develop, and enhance the Licensed Programs and
Documentation, to make derivative products and to use and copy
the Licensed Programs and Documentation in connection therewith.
Euronet acknowledges and agrees that such modifications that are
created by Customer or third parties are Customer Modifications.
iii. Documentation License. Subject to the terms of this Agreement,
Euronet grants to Customer a nonexclusive, perpetual, worldwide,
royalty-free, irrevocable and nonterminable license to copy, use,
reproduce and modify the Documentation. During the Update Period,
Euronet will provide to Customer all versions, updates and
modifications of the Documentation at no additional charge to
Customer. Customer may distribute copies of all or a portion of
the Documentation to Clients and third parties in support of the
authorized use of the Licensed Programs.
iv. Restrictions. The licenses granted in this Section shall be
subject to the following restrictions during the Restriction
Period:
a. WORLDWIDE
Customer shall not, directly or through third parties,
lease, license, rent, sell, give or otherwise provide or
convey Source Materials to any entity unless Customer also
provides the source code for at least one product of
Customer's proprietary core banking, teller, origination or
data warehouse software to such entity and provides the
Source Materials under terms no less protective of such
Source Materials than of Customer's proprietary software.
b. IN EMEA AND ASIA/PAC
Customer shall not, directly or through third parties
(including service bureaus): (i) use the Licensed Programs
or Customer Modifications to provide EFT Processing Services
with respect to any ATM's or POS devices located in EMEA or
Asia/Pac; or
(ii) lease, license, rent, sell, give or otherwise provide
or convey the Licensed Programs for use in the EMEA or
Asia/Pac (1) to an entity that is not a Client or (2) to any
entity to provide EFT Processing Services.
c. In ROW
Except for (i) Clients and (ii) clients headquartered in the
United States (or a United States territory) utilizing EFT
Network Services, Customer shall not, directly or through
third parties (including service bureaus), lease, license,
rent,
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sell, give or otherwise provide or convey the Licensed
Programs to entities for use in ROW or use the Licensed
Programs in ROW.
For the avoidance of doubt, except for the worldwide restriction set
forth in subsection (a) above, the parties agree that Customer shall not
be subject to any restrictions in the United States or in any of its
territories; provided that Customer may not (directly or through third
parties) violate the geographic restrictions set forth in subsections (b)
and (c) above by providing such services from the United States or a
United States territory. After the Restriction Period, Customer's use of
the Licensed Programs and Customer Modifications shall no longer be
subject to the restrictions set forth in this subsection iv. The
restrictions in this Section do not apply to and shall not restrict
Customer's ability to provide to third parties (including but not limited
to Clients) the Client-Side Software in connection with the EFT Network
Services.
v. Decrease of Restriction Period. In the event Euronet undergoes a
change of control of the corporate division supporting this
Agreement, or of Euronet in excess of 50% of the ownership of the
Euronet, and thereafter the transferred division or Euronet fails
to abide by the terms of this Agreement during the Restriction
Period, then, in addition to such other remedies as may be
available to Customer pursuant to Section 15.A., Customer shall
be released from the restrictions in subsection iv and the
Restriction Period shall end as of such date.
vi. Customer acknowledges that the Licensed Programs contain
confidential, proprietary and trade secret information that
belongs to and is the sole and exclusive property of Euronet.
Customer covenants and agrees at all times during the Restriction
Period to keep confidential, all information concerning the
Licensed Programs and to take all reasonable security measures to
protect the same. Nothing contained in this subsection vi shall
restrict Customer's right to exercise the license rights set
forth in this Section 5 including but not limited to Customer's
right to subcontract any of Customer's development rights, even
if such contractor is a competitor of Euronet.
vii. Customer shall ensure that its agreements with Clients, Licensed
Service Bureaus and other third-parties (including
subcontractors, if any) protect the Licensed Programs, including
the Source Materials, and other Confidential Information
protected under this Agreement with at least the same degree of
care that Customer uses to protect Customer's like- programs,
materials and information, but not less than a reasonable degree
of care.
6. INTELLECTUAL PROPERTY
A. Euronet shall retain ownership of all copyrights, patent rights and other
intellectual property rights in the unmodified Licensed Programs, and Customer
shall have no implied ownership rights in or to the Licensed Programs, except as
otherwise provided herein. Customer shall retain ownership of all copyright,
patent rights and other intellectual property rights in the Customer
Modifications, and Euronet shall have no implied ownership rights in or to the
Customer Modifications. The parties shall mutually agree upon the ownership of
any Developments prior to Euronet providing the Services to create those
Developments.
B. To the extent ownership of Customer Modifications (and/or any
Developments which are owned by Customer) does not vest in Customer in the first
instance, Euronet shall assign all ownership rights in the Customer
Modifications (and any Developments which are owned by Customer) to Customer.
Euronet shall execute and provide any documents reasonably necessary to evidence
and protect Customer's ownership rights in the Customer Modifications (and any
Developments which are owned by Customer). To the extent permitted by law,
Euronet waives and agrees not to assert any moral rights it may have to any
Customer Modifications (and any Developments which are owned by Customer) that
may inure to Euronet under copyright law. Euronet agrees to cooperate with
Customer and to execute all documents necessary for Customer to apply to secure
its copyright, patent and other intellectual property
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and ownership rights in the Customer Modifications (and any Developments which
are owned by Customer) in all appropriate countries.
C. To the extent ownership of Licensed Programs (excluding any Developments
which are owned by Customer) does not vest in Euronet in the first instance,
Customer shall assign all ownership rights in the Licensed Programs (excluding
any Developments which are owned by Customer) to Euronet. Customer shall execute
and provide any documents reasonably necessary to evidence and protect Euronet's
ownership rights in the Licensed Programs (excluding any Developments which are
owned by Customer). To the extent permitted by law, Customer waives and agrees
not to assert any moral rights it may have to any Licensed Programs (excluding
any Developments which are owned by Customer) that may inure to Customer under
copyright law. Customer agrees to cooperate with Euronet and to execute all
documents necessary for Euronet to apply to secure its copyright, patent and
other intellectual property and ownership rights in the Licensed Programs
(excluding any Developments which are owned by Customer) in all appropriate
countries.
D. Aside from Euronet's obligation to provide the Licensed Programs,
Updates, Versions, Developments and the Services hereunder, neither party shall
be obliged to disclose to the other any information concerning enhancements or
other developments relating to the Licensed Programs that are created in the
course of or during the Term of this Agreement.
E. Developments, Updates, and Versions of the Licensed Programs provided by
Euronet shall become a part of the Licensed Programs, and as such are subject to
all the terms and conditions of this Agreement.
7. CHARGES, PAYMENT AND TAXES
A. INVOICING AND PAYMENT
Euronet shall invoice Customer for License Fees that are included in Exhibit B,
and Customer will pay Euronet for the license to use the Licensed Program and
the Source Materials in the amounts and at the times stated in Exhibit B.
Payments of invoiced amounts are due within thirty (30) days of the date of the
invoice and shall be deemed overdue if they remain unpaid thereafter. Interest
charges (at the prime rate published by Bank of America in Little Rock,
Arkansas) will accrue on License Fees and invoiced amounts, on any reasonably
undisputed balance not paid when due, provided that Euronet first gives Customer
written notice of such nonpayment and the opportunity to make payment within ten
(10) business days of Customer's receipt of such notice.
B. FEES FOR SERVICES
i. Euronet will provide Warranty Services during the Update Period as
described in Section 10 and such Warranty Services shall be included
within the License Fees payable under this Agreement. Euronet will
provide Maintenance and Support Services to Customer as described in
Exhibit D and pursuant to the description of fees for Maintenance and
Support Services in subsection 7.B.ii and Exhibit D.
ii. As described in Exhibit D, the License Fees payable under this
Agreement include two (2) Man Years of Support Services (as defined in
item #6 of Exhibit D). If the two (2) Man Years of Support Services
are exceeded, additional Professional Services shall be provided, upon
the written request of Customer, subject to the following terms. Until
the date that is five (5) years from the Effective Date, Customer
shall pay Euronet for all the time spent performing such additional
Professional Services at a rate of US$1000.00 per man day (or pro rata
portion for partial man days), plus materials, taxes and expenses,
including reasonable travel expenses. Beginning with the sixty-first
(61st) month following the Effective Date, all Professional Services
shall be provided at Euronet's standard time and materials ("T&M")
rates for Professional Services as described in Section 8. Any
monetary limit or time estimation stated for services in the Exhibits
shall be an estimate only for Customer's budgeting and Euronet's
resource scheduling purposes. If such estimated limits are
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exceeded, Euronet will cooperate with Customer to provide continuing
services on a T&M basis. Programming and other forms of software
development are included in the Support Services; however, such
services are provided by Euronet personnel on an "as available" basis.
iii. Following the initial Warranty Period for Version 2.2, Customer may,
upon written notice and at Customer's option, renew the Maintenance
and Warranty Services provided under this Agreement for an additional
twelve (12) months at a rate of US$650,000 (six hundred and fifty
thousand US dollars) for the additional period. Any such extension of
maintenance shall have no effect upon the measurement of the
Restriction Period.
C. TAXES
Unless otherwise expressly agreed to in writing, all prices hereunder are
exclusive of local excise, sales, use, ad valorem, and similar taxes or duties.
Such taxes and/or duties shall be paid exclusively by the party that is
responsible for such tax, and the other party shall not be liable for any such
taxes and duties, regardless of whether or not the same are separately stated.
The parties will cooperate with each other in determining the extent to which
any tax is due and owing under the circumstances, and shall provide and make
available to each other any information regarding out-of-state use of materials,
services or sale and other exemption certificates or information reasonably
requested by either party.
8. PROFESSIONAL SERVICES
A. "Professional Services" (i.e., services provided by Euronet, other than
Warranty Services, Maintenance Services and Support Services) may be contracted
as requested by the Customer and may be provided subject to Euronet staff
availability. Requests for any support provided for in this Section must be made
in writing in a format acceptable to Euronet and must be agreed in writing by
Euronet. Such writings may be transmitted electronically.
B. Customer may, at Customer's sole discretion, establish a dial-in
capability to support the Services. In such case, each party shall be
responsible for all of its own costs associated with such capability, including
but not limited to, purchasing and maintaining its own equipment, line costs,
setting up and maintaining its own hardware ports and long-distance telephone
charges, if any.
C. Programming and software development services requested by Customer are
considered Support Services hereunder until the two (2) Man Years of Support
Services are completed. Thereafter, programming and software development
services shall be provided at the Professional Services rate of $1000 per day
for the remainder of the initial five (5) years of this Agreement and at
Euronet's standard Professional Services rates thereafter, plus materials, taxes
and expenses, including reasonable travel expenses.
D. In connection with the two (2) man years of Support Services, Customer
shall not be charged for travel time for Services rendered within the United
States. If any Services provided by Euronet require travel of Euronet personnel
outside the United States or if the travel is related to any Professional
Services, Euronet will include charges for such travel time at Euronet's
standard rates in addition to expenses, including reasonable travel expenses.
9. ADDITIONAL OBLIGATIONS
Euronet shall provide to Customer, as Exhibit C to this Agreement, a list of
third-party software that Euronet uses in its standard operating environment
with the Licensed Programs. Customer shall be responsible for providing the
hardware and software resources, including third-party hardware and software,
communication lines and/or modems and associated technical resources, except
that Euronet shall be responsible for providing any necessary hardware and
software resources, including third party hardware and software, which are not
specified on Exhibit C and which are used by Euronet in Euronet's operating
environment. Customer shall be responsible for establishing the operating
environment in
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Maitland, Florida prior to Installation sufficient to allow the parties to
evaluate the Licensed Programs against the applicable items listed in Exhibit E.
10. WARRANTY AND REMEDIES
A. WARRANTY TERMS
i. EXCLUSIONS
Customer Modifications and other modifications not provided by
Euronet shall not be entitled to warranty protection under this
Agreement. Further, Euronet shall not be responsible for any
failure or Critical Error (as defined in subsection B) to the
extent such failure or Critical Error is caused by any Customer
Modification or other modification of the Licensed Programs not
provided by Euronet. Euronet shall not be liable for any damages
sustained by Customer or third parties resulting from modifications
not provided by Euronet.
ii PROGRAM WARRANTY
(1) Version 1.5 Performance Warranty. Except as provided in Section
10.A.i. above, with regard to Version 1.5 Licensed Programs,
during the Warranty Period, Euronet warrants that each Standard
Licensed Program provided in Version 1.5 and each Update and
Development thereto (if any) will perform in the Ordinary
Course of Business and will provide Customer with all
regulatory and network mandates which Euronet provides
generally to its customers. Without limiting the foregoing, the
parties agree that this warranty requires Euronet to remedy any
Critical Errors in accordance with Exhibit F (unless Version
1.5 is withdrawn for all Euronet United States customers during
such eighteen (18) month period in which case Euronet shall
provide Customer with notice within the same time and manner as
other customers of Euronet).
(2) Version 2.2 Performance Warranty. Except as provided in Section
10.A.i. above, Euronet warrants that each Version 2.2 Licensed
Program and each Update and Development will perform in all
material respects in accordance with the Documentation and will
provide Customer with all regulatory and network mandates which
Euronet provides generally to its customers during the longer
of: (a) the Warranty Period; or (b) the first ninety (90) days
following the Delivery of an Update or Development or the date
of Delivery of the repair of the applicable Error (as described
in Section 10.B.i), whichever is applicable. Euronet does not
warrant that the Licensed Programs will operate in combinations
other than as specified in the Documentation or that the
operation of the Licensed Programs will be uninterrupted or
error-free.
(3) Virus Warranty. Except as disclosed on Exhibit G, no software
contained within the Licensed Programs contains any timer,
virus, copy protection device, disabling code, clock, counter
or other limiting design or routine which causes such software
(or any portion thereof) to become erased, inoperable,
impaired, or otherwise incapable of being used in the full
manner for which it was designed and contemplated under this
Agreement.
iii. MEDIA WARRANTY
Except as provided in Section 10.A.i. above, Euronet warrants the
tapes, diskettes or other media to be free of defects in materials and
workmanship under normal use for ninety (90) days from the date of delivery to
Customer of such tapes, diskettes or other media.
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iv. SERVICES WARRANTY
Euronet warrants that its Services will be performed in a
timely, competent, workmanlike, and professional manner.
v. INTELLECTUAL PROPERTY WARRANTY.
(1) Euronet represents and warrants that it owns or has all
applicable rights to license the Licensed Programs and
Documentation, including all applicable Intellectual
Property rights inherent therein, and neither the license
nor use as permitted hereunder will constitute an
infringement or other violation of any U.S. trademark,
copyright, patent, trade secret or other intellectual
property right of any third party or any foreign trademark,
copyright, patent, trade secret or other intellectual
property right of any third party in a country where
Euronet has licensed the Licensed Programs.
(2) Euronet represents and warrants, as of the Effective Date,
that each item of the Licensed Programs listed on Exhibit B
exists and that during the Update Period, no item of
Version 2.2 of the Licensed Programs listed on Exhibit B
will be sundowned or withdrawn.
(3) Euronet represents and warrants that, as of the Effective
Date, the Licensed Programs are not the subject of any
suit, action or proceeding which involves a claim of
infringement or misappropriation of any Intellectual
Property right of any third party. Euronet represents and
warrants that, as of the Effective Date, Euronet has not
received any written notice alleging any such claim or
possible claim or offering to license any third party
Intellectual Property in order to avoid or lessen the
chance of being subject to any such claim.
(4) Euronet represents and warrants that the Licensed Programs
are protectable under applicable copyright law and have not
been forfeited to the public domain and have been
registered with the U.S. Copyright Office or are eligible
for registration.
(5) Euronet represents and warrants that, except as provided on
Exhibit H, there is no third party Intellectual Property
which is incorporated in or an essential component of the
Licensed Programs.
vi. AUTHORIZATION OF TRANSACTION. Euronet represents and
warrants that it has the full power and authority to
execute and deliver this Agreement and to perform its
obligations set forth in this Agreement. This Agreement
constitutes the valid and legally binding obligation of
Euronet and is enforceable in accordance with its terms.
vii. NONCONTRAVENTION. Euronet represents and warrants that it
has not entered into any other agreement still in effect
which renders it incapable of satisfactorily performing its
obligations hereunder, or which places it in a position of
conflict of interest or inconsistent with its obligations
hereunder.
B. REMEDIES
For any breach of the warranties contained in Sections 10.A.ii, iii and iv, the
following non-exclusive provisions shall apply:
i. FOR PROGRAMS. Euronet's obligation is to remedy any Program
Warranty breach as provided in the following subsections:
a. Customer must notify Euronet in writing within the
periods warranted of any breach of the Program
Warranties.
page 10
b. Euronet will (at no charge to Customer and not as part of
the two (2) Man Years of Support Services) correct and
repair any Critical Error in the Licensed Programs and/or
Update(s) ("Warranty Services").
c. The parties will utilize the process set forth in Exhibit F
for the Warranty Services.
d. If Customer notifies Euronet that the Customer suspects an
Critical Error, Euronet shall use reasonable diligence to
confirm the existence of such Critical Error at Euronet's
place of business and Euronet will promptly correct actual
Critical Errors discovered.
e. Except as set forth in Section 10.A.i. regarding
modifications not made by Euronet, NO work performed by
Euronet under the warranties provided herein shall not be
counted toward the two (2) Man Years of Support Services
described in Exhibit D. If it is ultimately determined that
no Critical Error exists, the effort expended in correcting
the error shall count toward the two (2) Man Years of
Support Services; however, the time spent determining
whether a Critical Error exists shall not.
f. Customer will reasonably cooperate with Euronet in the
determination of solutions to all suspected Critical
Errors, including, but not limited to, supplying data
requested by Euronet, access to Customer equipment, and
implementation of Euronet-supplied fixes and data gathering
changes. Customer shall, at Euronet's reasonable request,
allow remote access to Customer's system via Internet or
Dial-Up modem to allow remote testing, diagnosis and
correction.
g. All suspected Critical Errors must be reported to Euronet
on a document acceptable to Euronet; provided, however that
failure of Customer to report the Critical Error on
Euronet's form shall not result in a denial of warranty
coverage unless (and then solely to the extent) such
failure causes prejudice to Euronet.
ii. FOR MEDIA
The replacement of defective media returned to Euronet within
ninety (90) days of the date of delivery to Customer.
iii. FOR SERVICES
The reperformance of the Services at no additional charge to
Customer. Such reperformance of the Services shall not be counted against
the two (2) Man Years of Support Services. Additionally, breach of this
provision may subject Euronet to the terms of Section 15 .A.
C. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY
A. Except for obligations to make payments hereunder (including the remedies
provided set forth in 15.B.iii.a.) and except for Euronet's obligations set
forth in Section 12, each party's liability for any claim, cause of action or
liability, whether sounding in contract, tort or otherwise arising under or
related to this Agreement shall be limited to its direct damages, actually
incurred, and shall not exceed US$650,000 (six hundred and fifty thousand US
dollars).
page 11
B. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, FOR LOSS OF REVENUE
OR PROFITS OR FOR CLAIMS OR DEMANDS MADE BY THIRD PARTIES, EVEN IF THE PARTY WAS
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C. Except as expressly provided herein, neither party, its agents or
employees shall be liable for any lost profits of the other party or any claims
or demands made against the other party by a third party.
D. Under no circumstances will Euronet be liable for damages to the extent
directly resulting from Customer Modifications or to the extent caused by
Customer's failure to install Euronet supplied Updates.
E. Customer acknowledges that the Customer has the final responsibility to
review the functioning of the Licensed Programs and any changes supplied by
Euronet. Customer shall verify for itself that the Licensed Programs meet the
needs and appropriate use intended by Customer and that the Licensed Programs
function accurately for Customers processing environment. Customer acknowledges
that Customer has the final responsibility for configuration of hardware and
system software for the equipment on which the Licensed Programs run. Under no
circumstances will Euronet be liable for damages for any configuration errors
for hardware or software other than the unmodified Licensed Programs. Customer
also acknowledges that it is ultimately responsible for insuring that proper
backups of the Licensed Programs and data are performed; and since Euronet's
Licensed Programs are only a part of Customer's full data processing solution,
that Customer is responsible for the complete configuration of computer hardware
and non-Euronet software necessary to perform Customer's functions; and that
Customer is responsible to insure correctness of data entry and that proper
security procedures are in place for Customer's operations.
12. INFRINGEMENT AND REMEDY
A. Each party (the "Indemnifying Party" or "Provider") will defend and
indemnify the other party and its clients (the "Indemnified Party" or
"Recipient") against a claim that any information, design, specification,
instruction, software, data, or material furnished by the Provider ("Material")
as part of the Licensed Programs or Customer Modifications, as applicable,
infringes a U.S. copyright, patent or other Intellectual Property right or a
foreign copyright, patent or other Intellectual Property right in a country in
which the Euronet has licensed the Licensed Programs as of the Effective Date
(the "Claim") provided that the Indemnified Party shall promptly notify the
Indemnifying Party thereof in writing; provided, however, that no delay on the
part of the Indemnified Party in notifying the Indemnifying Party shall relieve
the Indemnifying Party from any obligation hereunder unless (and then solely to
the extent) the Indemnifying Party thereby is prejudiced.
B. The Indemnifying Party will have the right to defend the Indemnified
Party against the Claim with counsel of its choice satisfactory to the
Indemnified Party so long as (1) the Indemnifying Party provides the Indemnified
Party with evidence acceptable to the Indemnified Party that the Indemnifying
Party will have the financial resources to defend against the Claim and fulfill
its indemnification obligations hereunder, (2) the Claim involves only money
damages and does not seek an injunction or other equitable relief, (3)
settlement of, or an adverse judgment with respect to, the claim is not, in the
good faith judgment of the Indemnified Party, likely to establish a precedential
custom or practice adverse to the continuing business interests of the
Indemnified Party and (4) the Indemnifying Party conducts the defense of the
Claim actively and diligently.
C. So long as the Indemnifying Party is conducting the defense of the Claim
in accordance with subsection B. above, (1) the Indemnified Party may retain
separate co-counsel at its sole cost and expense and participate in the defense
of the Claim and (2) the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the Claim without the
prior written consent of the Indemnifying Party.
D. In the event any of the conditions in Section 12.B. above is or becomes
unsatisfied, however, (1) the Indemnified Party may defend against and consent
to the entry of any judgment or enter into any settlement with respect to, the
Claim (provided that the Indemnified Party consults with and obtains the
page 12
consent from, the Indemnifying Party in connection therewith), (2) the
Indemnifying Party will reimburse the Indemnified Party promptly and
periodically for the costs of defending against the Claim (including reasonable
attorneys' fees and expenses) and (3) the Indemnifying Party will remain
responsible for any Adverse Consequences the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of or caused by the
Claim to the fullest extent provided in this Section 12.
E. The Provider shall have no liability for any claim of infringement
resulting specifically from: (a) the Recipient's use of a superseded or altered
release of some or all of the Material if infringement would have been avoided
by the use of a subsequent unaltered release of the Material that is provided to
the Recipient; (b) the combination, operation, or use of some or all of the
Material or any modification thereof provided for under this Agreement with
information, software, specifications, instructions, data, or materials not
furnished by the Provider if the infringement would have been avoided by not
combining, operating, or using the Material or the modification thereof, with
such information, software, specifications, instructions, data, or materials;
(c) some or all of the Material or the modification thereof, which is based on
the Recipient's Material but only to the extent that such Material is
Recipient's; or (d) any information, design, specification, instruction,
software, data or material not furnished by or on behalf of the Provider.
F. In the event that some or all of the Material is held or is believed by the
Provider to infringe, the Provider shall have the option, at its expense,
to: (a) modify the Material so that it meets the same specifications so as to be
non-infringing; (b) replace the Material with non-infringing material that meets
the same specifications as the infringing Material; or (c) to obtain for the
Recipient, at no cost to Recipient, a license to continue using the Material.
G. This section states each party's entire liability and exclusive remedy for
infringement.
13. FORCE MAJEURE
Euronet shall not be liable for any delay in performing any obligation to
Customer hereunder due to any cause beyond Euronet's reasonable control,
including but not limited to delays by Customer, acts of other vendors, acts of
civil or military authority, labor disputes, fire, riots, civil disturbance,
sabotage, war, terrorism, embargo, blockage, floods, earthquakes, epidemic,
delays in transportation, and governmental restrictions. Euronet time to perform
shall be increased to the extent necessitated by such causes.
14. NO IMPLIED WAIVERS
The failure of either party at any time to require performance by the other
party of any provision hereof shall not affect in any way the right to require
such performance at any time thereafter, nor, shall the waiver by either party
of a breach of any provision hereof be taken or held to be a waiver of the
provision itself.
15. REMEDIES FOR BREACH
A. BREACH BY EURONET
i. Subject to the provisions of Section 11.A., Customer may seek damages
from Euronet by written notice to Euronet upon any breach of Euronet's
obligations under this Agreement if such breach, in the reasonable
judgment of Customer, materially and adversely affects Customer and
Euronet has not corrected such breach within thirty (30) days of such
notice or is not working diligently in good faith to cure such breach
in cases where a breach cannot reasonably be expected to be cured
within thirty (30) days. In the event that Euronet fails to remedy the
breach of any Program Warranty, such damages may include the cost to
Customer, including without limitation internal and third party costs,
of repairing any Critical Errors or other failures in the Licensed
Programs. In the event Euronet fails to remedy the breach of the
Services Warranty, such damages may include without limitation the
cost to Customer of internal or third party resources used to remedy
such failure. The licenses
page 13
granted in Section 5.A. shall continue regardless of Customer's
exercise of its rights pursuant to this Section. ii.
In the event of a threatened or actual breach by Euronet of this
Agreement, monetary damages alone shall not be an adequate remedy, and
Customer, in addition to monetary damages, shall be entitled to
injunctive, equitable, and other legal relief against such breach as
may be awarded by a court of competent jurisdiction plus reasonable
expenses (including attorneys fees and costs).
B. BREACH BY CUSTOMER
i. The licenses granted pursuant to Section 5 of this Agreement are
irrevocable and this Agreement may not be terminated by Euronet.
ii. Subject to the provisions of Section 11.A., Euronet may seek damages
from Customer by written notice to Customer upon any breach of Customer's
obligations under this Agreement if such breach, in the reasonable judgment of
Euronet, materially and adversely affects Euronet, and Customer has not
corrected such breach within thirty (30) days of such notice or is not working
diligently in good faith to cure such breach in cases where a breach cannot
reasonably be expected to be cured within thirty (30) days.
iii. In the event Customer breaches any restriction under Section 5.A.iv.
the parties agree that:
a. Euronet's sole and exclusive remedy shall be that Customer shall, at
Customer's sole discretion and within thirty (30) days of being
notified by Euronet of such breach, either: (1) pay to Euronet 2 times
(2X) the revenue Euronet would have charged for the licenses of and/or
EFT processing services utilizing (as determined by the offerings
under the agreement causing the breach) the Licensed Programs; or (2)
Customer shall remedy the breach of the restriction (by reversing the
portion of the agreement that violates the restriction. If Customer
elects to pay Euronet 2X the revenue Euronet would have charged, such
amount shall be determined based on the average of the last three (3)
comparable sales made by Euronet or based on Euronet's then-current
standard pricing,whichever is less.
b. Regardless of whether Customer remedies the breach of the restriction
as described above, for each breach of the restrictions under Section
5.A.iv., one (1) year shall be added to the Restriction Period.
iii. In the event of a threatened or actual breach by Customer of Sections 5.A.
or 20 of this Agreement, the parties agree that monetary damages alone shall not
be an adequate remedy, and Euronet shall be entitled to injunctive or other
equitable relief against such breach as may be awarded by a court of competent
jurisdiction plus reasonable expenses (including attorneys fees and costs). Any
such remedies shall not include termination of this Agreement or any of the
licenses granted hereunder.
C. No election of any remedy shall be construed as a waiver of or prohibition
against any other remedy in the event of a breach hereunder.
16. BINDING AGREEMENT
This Agreement shall be binding upon the successors and permitted assigns of the
parties. The parties hereto, for themselves and for their successors and
permitted assigns, agree to execute any instrument in writing which may be
necessary or proper to carry out the purposes and intent of this Agreement.
17. NOTICES
page 14
Any notice, request, or other communication required or permitted hereunder
shall be in writing and shall be deemed properly given when delivered by the
appropriate government postal service with return receipt; by a generally
recognized commercial courier, postage prepaid; or when transmitted by facsimile
followed by delivery of the original copy via the appropriate government postal
service, addressed:
A. In case of Euronet to: Euronet USA Inc., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇, U.S.A., FAX ▇▇▇-▇▇▇-▇▇▇▇ Attn: Executive Vice President or to
such other person or address as Euronet may from time to time furnish to
Customer. Customer shall also fax a copy of such Notice to Euronet's Office of
General Counsel in France at ▇▇▇-▇-▇▇▇▇-▇▇▇▇, or to such other number or address
as Euronet may from time to time furnish to Customer.
B. In case of Customer, to the Authorized Representative and address on page
one of this Agreement or to such other person or address as Customer may from
time to time furnish to Euronet. Euronet shall also fax a copy of such Notice to
Customer's Office of General Counsel at (▇▇▇)▇▇▇-▇▇▇▇, or to such other number
or address as Customer may from time to time furnish to Euronet.
Each party shall at all times maintain an accurate and current address with the
other party.
18. NON-HIRING OF EMPLOYEES
Each party acknowledges that the other party has gone to considerable time,
effort, and expense to develop a well-trained, experienced and professional
staff; and, in recognition thereof, during the first five (5) years of the Term
of this Agreement, neither party will solicit, attempt to hire, or hire away any
employee of the other party who provided services or support in connection with
the Licensed Programs (except for clerical positions) to work as an employee, an
advisor, or an independent consultant in connection with the Licensed Programs
unless the prior written consent of the other party has been obtained or the
employee has been terminated or the employee has voluntarily disassociated from
the current employer for a period of at least one (1) year.
19. COMPLETENESS OF INSTRUMENT; MODIFICATIONS
This Agreement constitutes the complete and exclusive agreement of the parties
with respect to the Licensed Programs and Source Materials and supersedes any
prior proposals, documents, commitments, or representations of any kind whether
oral or written. Customer and Euronet agree that the provisions herein prevail
over any variance of trade or prior performance to the contrary. All
modifications and amendments hereto must be in writing and signed by duly
authorized representatives of both parties, except as expressly provided in this
Agreement.
20. CONFIDENTIAL AGREEMENT, MEDIA AND MARKETING
A. By virtue of this Agreement, the parties may have access to information
that is confidential to one another, including but not limited to the services
performed by Euronet, the Developments, Customer Modifications, Licensed
Programs, including Source Materials, the terms and pricing under this
Agreement, and all information clearly identified as confidential (collectively,
the "Confidential Information"). "Confidential Information" expressly includes
all "non-public personal information" as defined in Title V of the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (15 U.S.C. Section 6801, et seq.) and the implementing
regulations thereunder (collectively, the "GLB Act"), as the same may be amended
from time to time, that Euronet receives from or at the direction of Customer
and that concerns any of "customers" and/or "consumers" (as defined in the GLB
Act) of financial institutions that are customers of Customer.
B. A party's Confidential Information shall not include information that: (a)
is or becomes a part of the public domain through no act or omission of the
other party; (b) was in the other party's lawful possession prior to the
disclosure and had not been obtained by the other party either directly or
indirectly form the disclosing party; (c) is lawfully disclosed to the other
party by a third party without restriction on disclosure; or (d) is
independently developed by the other party.
page 15
C. All Confidential Information disclosed by Euronet or Customer to
the other during the term of this Agreement (1) shall be deemed the property of
the disclosing party, (2) shall be used solely for the purposes of administering
and otherwise implementing the terms of this Agreement, and (3) shall be
protected by the receiving party in accordance with the terms of Section 20. The
parties agree to hold each other's Confidential Information in confidence during
the Term of this Agreement, except for: i) Licensed Programs, which shall be
held in confidence by Customer for the initial five (5) years after the
Effective Date of this Agreement; and ii) Customer's Clients' personal
information, which shall be held in confidence indefinitely. The parties agree,
unless required by law, not to make each other's Confidential Information
available in any form to any third party for any purpose other than the
implementation of this Agreement or to exercise its rights under the Agreement.
Neither party shall reproduce in any form, or provide, disclose, or give access
to such Confidential Information to any third party or to any employee not
having a need to know the Confidential Information, and shall not use the
Confidential Information for any purpose other than to perform its obligations
and exercise its rights under this Agreement. Each party agrees to use the same
degree of care it uses to protect its own confidential information of like
nature and importance, but in no event less than reasonable care, including
taking all reasonable steps to ensure that Confidential Information is not
disclosed or distributed by its employees or agents in violation of the terms of
this Agreement. Nothing in this Section 20 shall restrict Customer's right to
furnish or otherwise provide the Licensed Programs (including Updates,
Developments and Versions), Documentation and other Confidential Information to
Clients or Customer's right to engage subcontractors and agents to perform work
in connection with the Licensed Programs (including Updates, Developments and
Versions) or Documentation, even if such subcontractor or agent is a competitor
of Euronet, provided however, such Licensed Programs, Documentation and
Confidential Information are provided subject to Customer's written restrictions
on such subcontractor's or agents use of Customer's programs, documentation and
confidential and proprietary information; such restrictions to be at least as
protective of Euronet's rights in the Licensed Programs as are the provisions of
this Agreement.
D. No copy of this Agreement, nor any information relating to the
Agreement or discussions, negotiations, terms or conditions related to this
Agreement, may be disclosed to any third party, except by reason of legal,
accounting or regulatory requirements, without prior written permission of the
other party. Each party agrees to exercise due diligence in limiting disclosure
to the minimum necessary under the particular circumstances.
The parties shall consult with each other in preparing any press release, public
announcement, news media response or other form of release of information
concerning this Agreement or the transactions contemplated hereby that is
intended to provide such information to the news media or the public (a "Press
Release"). Neither party shall issue or cause the publication of any such Press
Release without the prior written consent of the other party; except that
nothing herein will prohibit either party from issuing or causing publication of
any such Press Release to the extent that such action is required by applicable
law or the rules of any national stock exchange applicable to such party or its
affiliates, in which case the party wishing to make such disclosure will, if
practicable under the circumstances, notify the other party of the proposed time
of issuance of such Press Release and consult with and allow the other party
reasonable time to comment on such Press Release in advance of its issuance.
21. MISCELLANEOUS
A. DISPUTES AND ARBITRATION
i. The parties shall attempt to settle any disputes arising
out of or in connection with this Agreement through
negotiation and consultation before resorting to
arbitration. In the event a dispute arises between Euronet
and Customer with respect to the terms and conditions of
this Agreement, or any subject matter governed by this
Agreement, other than disputes regarding a party's
compliance with the provisions of Section 20
(Confidentiality) , such dispute shall be settled as set
forth in this section. If either party exercises its right
to initiate the dispute resolution procedures under this
section, then during such procedure any time periods
providing for curing any material breach (including the
payment of penalty or damages) under Section 15 shall be
automatically suspended.
page 16
ii. If any party shall have any dispute with respect to the
terms and conditions of this Agreement, or any subject
matter referred to in or governed by this Agreement, that
party (through the President, Integrated Financial
Solutions division of Customer or the Managing Director of
the Software Division of Euronet, as the case may be) shall
provide written notification to the other party in the form
of a claim identifying the issue or amount disputed and
including a detailed reason for the claim. The party
against whom the claim is made shall respond in writing to
the claim within thirty (30) days from the date of receipt
of the claim document. The party filing the claim shall
have an additional ten (10) business days after the receipt
of the response either to accept the resolution offered by
the other party or to request implementation of the
procedures set forth in subsection A.iii. below (the
"Escalation Procedures"). Failure to meet the time
limitations set forth in this Section shall result in the
implementation of the Escalation Procedures.
iii. Escalation Procedures.
(a) Each of the parties agrees to negotiate, in good
faith, any claim or dispute that has not been
satisfactorily resolved following the claim
resolution procedures described above. To this end,
each party agrees to escalate any and all unresolved
disputes or claims in accordance with this
subsection iii before taking further action.
(b) If the negotiations conducted pursuant to subsection
A.ii. above do not lead to resolution of the
underlying dispute or claim to the satisfaction of a
party involved in such negotiations, then either
party may notify the other in writing that she/he
desires to elevate the dispute or claim to the
President of Customer and the President of Euronet
for resolution. Upon receipt by the other party of
such written notice, the dispute or claim shall be
so elevated and the President of Customer and the
President of Euronet shall negotiate in good faith
and each use reasonable best efforts to resolve such
dispute or claim. The location, format, duration and
conclusion of these elevated discussions shall be
left to the discretion of the representatives
involved. Upon agreement, the representatives may
utilize other alternative dispute resolution
procedures to assist in the negotiations.
Discussions and correspondence among the
representatives for purposes of these negotiations
shall be treated as Confidential Information
developed for purposes of settlement, exempt from
discovery and production, which shall not be
admissible in subsequent proceedings between the
parties. Documents identified in or provided with
such communications, which are not prepared for
purposes of the negotiations, are not so exempted
and may, if otherwise admissible, be admitted in
evidence in such subsequent proceeding.
iv. Arbitration Procedures. In the event that a claim,
controversy or dispute between the parties with respect
to the terms and conditions of this Agreement, or any
subject matter governed by this Agreement, which is
subject to arbitration hereunder and which has not been
resolved by use of the claims procedures described
above, either party may, within thirty (30) days after
the conclusion of the discussions described above,
request binding arbitration of the issue in accordance
with the following procedures:
(a) Either party may request arbitration by giving the
other involved party written notice to such effect,
which notice shall describe, in reasonable detail,
the nature of the dispute, controversy or claim.
Such arbitration shall be governed by the Commercial
Arbitration Rules of the American Arbitration
Association ("AAA")
(b) The arbitration will be held in Little Rock,
Arkansas or such other city as is mutually agreed to
by the parties, before a sole arbitrator who is
knowledgeable in business information and electronic
data processing systems. The arbitrator will be
obligated to apply and follow the substantive law of
the state of Florida, as provided below.
page 17
(c) The arbitrator's award will be final and binding and may be
entered in any court having jurisdiction. The arbitrator
may grant injunctions or other relief in such dispute but
will not have the authority to award consequential,
punitive or exemplary damages, or any damages excluded by,
or in excess of, any damage limitations expressed in this
Agreement.
(d) An award or order issued pursuant to any such arbitration
proceeding shall be enforceable in any jurisdiction in
which the party against which the award or order is entered
has assets by filing a certified copy thereof in a court of
competent jurisdiction, whereupon the parties hereto
specifically consent to the entry of a final,
non-appealable judgment confirming and enforcing said
arbitration award or order.
(e) Notwithstanding the foregoing, the parties agree that the
only circumstance in which disputes between them will not
be exclusively subject to binding arbitration is a
circumstance in which either party has breached or
threatened to breach Sections 5.A. or 20 of this Agreement
and when an immediate remedy and/or prevention is required.
(f) If either party brings an arbitration action to enforce its
rights under this Agreement, each party shall bear its own
costs unless otherwise ordered and directed by the
arbitrator.
B. SEVERABILITY
If any provision herein shall for any reason be held invalid, illegal, or
unenforceable, the remaining provisions of this Agreement shall be replaced by a
mutually acceptable provision which, being valid, legal, and enforceable, comes
closest to the intent of the parties underlying that provision.
C. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of Florida without giving effect to any choice or
conflict of law provision or rule (whether of the State of Florida or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Florida. No action, regardless of form, arising out of
this Agreement may be brought by either party more than two (2) years after the
cause of action has occurred.
D. CURRENCY
All amounts referred to herein or in other documents related to this Agreement
shall be U.S. Dollars unless otherwise designated.
E. THIRD-PARTY SOFTWARE.
Exhibit C lists software from other vendors that is utilized in Euronet's
standard development environment. Customer shall be responsible for obtaining
licenses directly from the vendor. Except as expressly provided by vendor, such
software is provided without warranty of any kind whether express or implied,
including without limitation warranties of merchantability and fitness for a
particular purpose, and Euronet shall assume no liability whatsoever relative to
this software.
F. HEADINGS.
The paragraph headings contained in this Agreement are solely for the purpose of
reference, are not part of the agreement of the parties, and shall not in any
way offset the meaning or interpretation of this Agreement.
page 18
G. ASSIGNMENT.
i. Neither party shall assign, delegate, or otherwise convey or transfer (the
"Assignment") its rights, interests or obligations under this Agreement to any
person or entity without the prior written consent of the other party, except
that either party may assign, delegate, or otherwise convey or transfer its
rights, interests or obligations under this Agreement to any majority-owned
subsidiary of such party or to an entity which acquires substantially all of the
business assets of the business unit of such party which provides services
utilizing the Licensed Programs, upon notice to, but not upon prior written
consent of, Customer or Euronet, as appropriate. All obligations and duties of
any party under this Agreement shall be binding on all successors in interest
and permitted assigns of such party. The assignee or transferee shall, upon
completion of the Assignment, automatically succeed to the corresponding rights,
interests, and obligations of the assigning and transferring party and shall be
a successor of such party for purposes of this Agreement.
ii. In the event Euronet proposes to sell or transfer all or substantially all
of its ownership rights in the Licensed Programs, Euronet shall provide Customer
with notice and the ability to make an offer for the assets Euronet is proposing
to sell or transfer.
22. ENTIRE AGREEMENT
A. This Agreement constitutes the complete agreement between the parties and
supersedes all prior or contemporaneous agreements or representations, written
or oral, concerning the subject matter of this Agreement. This Agreement may not
be modified or amended except in a writing signed by a duly authorized
representative of each party; no other act, document, usage or custom shall be
deemed to amend or modify this Agreement.
B. It is expressly agreed that the terms of this Agreement shall supersede the
terms in any Customer purchase order or other ordering document. This Agreement
shall also supersede all terms of any unsigned or "shrinkwrap" license included
in any package, media, or electronic version of Euronet-furnished software and
any such software shall be licensed under the terms of this Agreement, provided
that the use limitations contained in an unsigned ordering document shall be
effective for the specified licenses.
C. The pricing in this agreement reflects the distribution of intellectual
property rights to Euronet and Customer.
The individuals executing this Agreement personally represent and warrant their
capacity and legal authority in executing this Agreement for parties in the
capacities shown below.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
day and year written below.
ALLTEL INFORMATION SERVICES, INC. Euronet USA Inc.
-------------------------------- -----------------------------
By By
▇▇▇▇ ▇▇▇▇▇▇▇▇ ____________________ _____________________________
Printed Name Printed Name
page 19
President, Integrated Financial Solutions _____________________________
Title Title
---------------------------- -----------------------------
Date Date
page 20
EXHIBIT B
LICENSED PROGRAMS
Pricing, Terms and Conditions
--------------------------------------------------------------------------------
ITEM: Licensed Programs, including Source Materials for the IBM AS/400 and
PC-Based Products License Fee(s)
One copy of each of the following: $5,000,000
Product
Available in 1.5 Available in 2.2
Integrated Transaction Management - Comprehensive Transaction Set X X
ATM Device Support - Diebold Cash Source Plus 100/200 X X
ATM Device Support - NCR MCD Dial Up ATM X X
ATM Device Support - Diebold 911 X X
ATM Device Support - Diebold 912 X X
ATM Device Support - Diebold Controller X X
ATM Device Support - NCR Native X X
ATM Device Support - Triton Dial Up ATM X X
ATM Device Support - PBM ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ X X
ACM X X
Communications Module - Path I X X
Communications Module - 5250 X X
Communications Module - SNA/SDLC LU0 X X
Communications Module - Path V X X
Communications Module - 3780 Bisync X X
Racal HSM Interface Module X X
Vendor Application Interface - Horizon X X
Card Management System X X
Euronet ▇▇▇▇ Payment System X X
--------------------------------------------------------------------------------
page 21
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Euronet Commercial Internet Banking X X
Euronet Personal Internet Banking X X
Telephone Banking X X
ATM Availability Report X X
Password/Pin Management X X
EPA X X
Host PIN Verification X X
Voice File Management X X
Gold-Net X X
EFT Connection - Deluxe X X
EFT Connection - Visa DPS X
EFT Connection - ITS X X
EFT Connection - EDS X
EFT Connection - MAC X
EFT Connection - MAC ISO X
EFT Connection - Midwest Payment Systems X
EFT Connection - NORWEST X
EFT Connection - NYCE X
EFT Connection - STAR X
EFT Connection - Pulse X
EFT Connection - DASH X
EFT Connection - TYME X
POS Management - Visa II Message Format X
POS Management - ISO 8583 Message Format X X
POS Management - ISO 8583 Message Format with EDC X
Communications Module - X.25 X X
Communications Module - TCP/IP X X
Gold-Net (Unilateral) Settlement X X
-------------------------------------------------------------------------------
page 22
-------------------------------------------------------------------------------
Fees & Analysis X X
Host PIN Verification X X
Merchant Draft Entry X
Merchant Management X
POS Workstation Authorization X X
-------------------------------------------------------------------------------
License Fees $5,000,000.00
-------------------------------------------------------------------------------
The Licenses Fee(s) shall be due and payable as follows:
. 50% of the License Fee is due and payable upon execution of this
Agreement by both parties;
. 40% of the License Fee is due and payable on the Acceptance Date as
defined in Step 5 of Exhibit E; and
. 10% of the License Fee is due and payable twelve (12) months from the .
Effective Date of this Agreement, and shall be released to Euronet
provided Euronet has substantially performed or is substantially
performing the Maintenance and Support Services described in Exhibit D.
SERVICES
-------------------------------------------------------------------------------
The Warranty, Maintenance and Support Services are included in the License Fees.
In the event Customer requires Professional Services beyond the Warranty,
Maintenance and Support Services, the parties shall consider amending Exhibit
and Exhibit D to add such Professional Services pursuant to the terms of this
Agreement.
-------------------------------------------------------------------------------
The foregoing product(s) price(s) is based on the following considerations:
Onsite Requirements
This project provides for two (2) Man Years worth of qualified resources to be
dedicated to Customer, and the fees for such Support Services are included in
the License Fees. One-half of one (.5) Man Year is to be at Customer's location,
and the associated travel, lodging, entertainment and other out-of-pocket
expenses are included in the License Fees. Any travel and related expenses in
excess of US$25,000 (twenty-five thousand US dollars) will be invoiced to
Customer on an actual cost basis. .
page 23
EXHIBIT C
REQUIRED HARDWARE AND SOFTWARE
Development Environment
IBM AS/400 Hardware and Related Equipment
There are no specific AS/400 hardware dependencies other than
connectivity-related hardware, and adequate disk storage. Therefore it is
assumed that a normal AS/400 operating environment will be provided, including
adequate hardware resources for printing, distribution media, system backups,
connection of Developer workstations, etc. It is further assumed that the
following hardware resources will be available on the Development AS/400 for use
by the ITM application.
. Disk Storage requirement is estimated to be XXXX Gb.
. Ethernet connectivity will be required for the Racal HSM
device(s).
. TCP/IP connectivity is recommended for the Test ATM device(s).
. TCP/IP connectivity is recommended for the Test Hypercom
device(s).
. TwinAxial connectivity will be required for the ITM 1.5 version
of EPA and Path V.
IBM OS/400 and Related Software
Model # Feature # Description
5733-SM3 0000 AS/400 SW Version 4.5 (or higher)
5755-AS5 0000 V4 SYSTEM PROGRAM ORDER
2503 COMM UTIL (5769-CM1)
2508 QUERY (5769-QU1)
2511 DB2 QRY KIT (5769-ST1)
2512 ILE RPG (5769-RG1)
2516 CA WINDOWS (5769-XW1)
2525 PERF TOOLS (5769-PT1)
2526 ADTS (5769-PW1)
2610 PT/400 MGR (5769-PT1)
5769-CM1 0000 COMMUN UTILITIES FOR AS/400
5769-PT1 0000 PERFORMANCE TOOLS
5769-PW1 0000 APPL DEVEL TOOLSET
5769-QU1 0000 QUERY FOR AS/400
5769-RG1 0000 ILE RPG FOR AS/400
5769-ST1 0000 DB2 QUERY MGR & SQL DEV KIT
0000 C/C++ FOR AS/400
0000 HTTP WEBSERVER FOR AS/400
Additional Third-party Software for the AS/400
. Progen
. Visual Lansa Developers Environment (required for ITM 2.2 only)
. Visual Lansa Run-Time Environment (required for ITM 2.2 only)
. JBA Guidelines 3.2 (required for ITM 2.2 only)
page 24
. JBA Guidelines Run-Time Environment (required for ITM 2.2 only)
Developer Workstation
. Visual Lansa Developer License [per seat license is required] (required
for ITM 2.2 only)
. Borland Builder Professional 4 (required for ITM 2.2 only)
. Borland Builder Enterprise 5 (required for ITM 2.2 only)
. Multilizer [required for multilingual product support] (required for ITM
2.2 only)
. JBA Guidelines 3.2 [per seat license is required] (required for ITM 2.2
only)
. Parity/Dialogic Graphical VOS 7 [required only for personnel developing
IVR server scripting]
. IBM Client Access (required for ITM 2.2 only)
Development Network
. Hypercom IENView (required by Hypercom in order to obtain support from
Hypercom)
. PCAnywhere (optional, but recommended for remote support purposes)
. Various EFT Network simulators [optional, but recommended whenever
available from Network (eg: Honor) ]
Telephone Banking Server
. Alliance I-4000 Telephony Server Platform
. Windows NT Server 4.0 (w/Svc Pack 6)
. Parity/Dialogic Graphical VOS 7
. Client Access Express
Internet Banking Server
. Windows NT Server 4.0 (w/Svc Pack 6a)
. MS Internet Information Server
. Client Access Express
Other Hardware
. ▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇ # ▇▇▇▇▇▇ Host Security Module
. Spare Thales/Racal Model # RG7100 Host Security Module (optional, but
recommended)
. Diebold ATM for Testing Purposes.
. NCR ATM for Testing Purposes.
. Triton Dialup ATM (optional, but recommended for testing purposes).
. Hypercom IEN 6000 (optional, but recommended for testing purposes).
. EPA (optional, but recommended for testing purposes).
page 25
EXHIBIT D
MAINTENANCE AND SUPPORT SERVICES
Euronet agrees to provide the following Maintenance and Support Services to
Customer for all components/modules of the Licensed Programs listed in the
Exhibits to this Agreement as part of the purchase consideration for the
transaction. The obligations and activities described in items 1 through 5 below
shall be referred to as the "Maintenance Services". The two (2) man years of
services described in Item 6 below shall be referred to as the "Support
Services".
1. Delivery of technical and user Documentation that currently exists as
well as any updates or modifications to such Documentation including updates to
the Documentation for Updates during the Update Period.
2. Installation of the Licensed Programs in accordance with of Exhibit E.
3. During the Update Period, Delivery to Customer of all Updates to the
Licensed Programs that Euronet generally makes available to its licensed
customers.
4. First level support (i.e., support provided by Euronet directly to
designated Customer EFT Network personnel) for the initial twelve (12) months
following the Effective Date of the Agreement; and second level support (i.e.,
support to be provided solely to Customer's support department personnel) for
Customer's EFT Network during the subsequent six (6) months.
5. For version 2.2 only, Euronet will provide the enhancement and related
Documentation (and any subsequent corrections) for all messaging, modules or
programs required to support Europay MasterCard Visa (EMV) chip-based (vs.
magnetic stripe) cards, regardless of when the enhancement is completed by
Euronet, but no later than the time when such enhancement is made commercially
available to other customers of Euronet.
6. Two (2) Man Years of "Support Services" to be provided with qualified
technical resources who are knowledgeable in the development, implementation
and/or operation of the Licensed Programs. "Man Year" shall be defined as the
equivalent of an 8-hour day multiplied by 245 days. Such Support Services shall
be used to provide such consulting and/or development services as are requested
by Customer, which may include:
.. Training
.. "Shadowing" Euronet personnel during upcoming software installation at a
customer location.
.. Technical development level support and other support.
All other Services requested by Customer and not listed above shall be performed
pursuant to Sections 7.B., 8 and 10 of the Agreement.
page 26
EXHIBIT E
INSTALLATION AND ACCEPTANCE
Installation of the Standard Licensed Programs shall consist of the successful
completion of all of the following steps/processes:
1. Promptly following the Effective Date, Customer shall commence
Training.
2. Promptly following the Effective Date, Customer shall commence
acquiring the necessary hardware and software resources to establish
Customer's development environment, as required by Article 9 of the
Agreement. It is anticipated that such hardware and software
acquisitions will take sixty (60) days to complete.
3 Beginning on the date that Step 2 above is completed, Euronet shall
commence installation of the Standard Licensed Programs and creation of
the development environment within the Customer's existing ▇▇▇▇▇ CMS
environment at Customer's facilities in Maitland, Florida. It is
anticipated that these activities to complete this Step 3 will be
completed within thirty (30) to forty-five (45) days following the
completion of Step 2 and will include the following activities:
. Euronet will distribute the Standard Licensed Programs to
Customer (in both source and object code), including default data
content for control parameters.
. This distribution will be organized in a manner suitable for
checking these objects in to Customer's ▇▇▇▇▇ CMS environment
(said organization is yet to be defined).
. Customer will be responsible for merging these objects and
database files into the Customer development and/or change
management environment(s). Euronet will provide consultation in
connection with this effort.
4. Euronet will create a full ITM release for all of Version 2.2 of the
Licensed Programs from the development system established in Step 3.
This extraction will be used to install Version 2.2 of the Standard
Licensed Programs on a separate Customer testing system. This step
shall be completed within sixty (60) to ninety (90) days after the
completion of Steps 2 and 3 above and include the following activities:
. Customer and Euronet shall create a distribution of a new system
from the development environment created in Step 3 above. Euronet
shall provide consulting assistance as needed during this
procedure.
. Euronet shall validate the content of this distribution to ensure
that the libraries are complete and accurate. Any deficiencies
will be described in writing to Customer within seven (7) days of
the completion of the validation in order to allow for
adjustments in Customer's distribution techniques and procedures.
If it is determined that adjustments to the distribution
procedures are required, Customer shall regenerate the
distribution, and Euronet shall revalidate the distribution,
before continuing.
. Euronet will receive the completed distribution and populate the
control parameters with default data relevant to the components
included in this distribution. (It is recommended that Customer
participate in this process as part of training.)
. Euronet shall set up a build and distribution environment on the
Customer's development system for the Licensed Programs.
5. The Version 2.2 of the Standard Licensed Programs must meet the
standard of performance set forth in this Step 5 before the Licensed
Programs will be considered accepted by Customer. It is anticipated
that the acceptance testing will be completed within thirty (30) days
of the completion of Step 4 above and will include the following
activities:
page 27
. Customer and Euronet shall jointly install the newly distributed
Standard Licensed Programs and data (created in Step 4 above)
into a test system (the "TEST") to be located at Customer's
HORIZON Technology Center East in Albany, New York.
. TEST will consist of a system with all components necessary to
provide online authorizations of transactions through the EFT
Network.
. The installation of TEST will include the "localization" and
"integration" of various control parameters and databases (e.g.:
datacomm, device-specific parameters, Test Cards, etc.)
. TEST will include a Horizon data set (to be determined by
Customer), which dataset shall be adequate for the test and
acceptance transaction set.
.. The standard of performance shall be that Version 2.2 of the Standard
Licensed Programs and the EFT Network operate in material conformity with
the Documentation and Customer is successfully processing all documented
transactions through Customer's EFT Network and driving an ATM, which shall
be verified using the Installation Checklist (attached hereto as Attachment
1 to Exhibit E) (the "Acceptance Standard").
.. Acceptance of the Licensed Programs shall be in accordance with the
following procedures:
(a) Upon the installation of the Licensed Programs, Customer
shall have thirty (30) days from the installation of TEST to
verify that the Licensed Programs operate in material
conformity with the Acceptance Standard. Euronet shall be in
attendance as may be reasonably required by Customer to
assist in the performance of the acceptance testing of the
Licensed Programs and to promptly rectify any errors which
may manifest themselves during acceptance testing.
(b) Within fifteen (15) days after the expiration of Customer's
testing period, Customer shall indicate in writing whether
or not the Licensed Programs meets the Acceptance Standard.
In the event that after testing the software fails to comply
with the Acceptance Standard, then Customer shall make a
written list of defects which cause non-compliance. Euronet,
at no additional charge to Customer, shall have fifteen (15)
days from the date of delivery of notice to replace, add, or
modify the software to cure the listed defects and to
re-deliver such software to Customer. Thereafter, Customer
shall resume the acceptance testing and Euronet shall resume
corrections until the software successfully passes such
tests. The date that the Licensed Programs is accepted shall
be the "Acceptance Date." If Customer does not timely verify
conformity with the Acceptance Standard or does not provide
timely notice of defects, the Licensed Programs shall be
deemed accepted. Customer also agrees that if Customer uses,
distributes or otherwise provides the Licensed Programs to
any clients (other than in connection with EFT Network
Services), the Licensed Programs shall be deemed to have
been accepted.
The final responsibility to review the functionality of the Licensed Software
provided by Euronet rests with the Customer. Because of the unique nature of
each Customer environment, the Customer should test all Licensed Software
provided by Euronet in Customer's own "test environment."
The parties agree that none of the activities set forth in this Exhibit E shall
count towards the two (2) many years of Support Services described in Exhibit D.
[NEED TO ATTACH THE INSTALLATION CHECKLIST AS AN ATTACHMENT TO THIS EXHIBIT.]
page 28
EXHIBIT F
INCIDENT RESOLUTION
Problem Severity Levels
The Euronet Customer Service Representative ("CSR") will assign the severity
level to an incident; however, the Customer can instruct the CSR to adjust the
severity level of a problem and Euronet will react accordingly.
Minor (Level 1)
Target resolution timeframe is thirty (30) days or less.
A Level-1 problem is defined as one in which an important function or
process has an error, but the system is functioning. The problem
exposes the Customer to little or no risk of financial loss or
downtime. Minor problems should be addressed by Euronet within thirty
(30) days. Euronet may determine that a Minor problem will not be
corrected if the impact of the problem is not materially affecting the
functionality of the system. Customer will be notified of that
determination and will have the option to request Euronet correct the
problem on a billable basis.
Major (Level 4)
Target Resolution timeframe is fifteen (15) days or less
The following types of situations will be classified as a Level-4
problem:
- An important function or process has an error but the system is
functioning. There is some risk of financial loss because of the
problem, but the Customer can identify and mitigate the risk
through normal balancing procedures or other operational means.
- A Level-1 problem that has not been resolved within thirty (30)
days will be reclassified to a level-four support item.
Critical (level 7)
Target Resolution timeframe is five (5) days or less.
The following types of situations will be classified as a Level-7
problem:
- An important function or process has an error but the system is
functioning. There is a high risk of financial loss and/or
downtime because of the problem, but the Customer can identify and
mitigate the risk through operational means.
- A Level-4 problem that has not been resolved within thirty (30)
days will be reclassified to a Level-7 support item.
An estimated resolution time period will be established during the same
business day in which the Customer reports the problem. The CSR will
periodically communicate with the Customer as to status and progress
leading to resolution.
Emergency - ▇▇▇▇▇ ▇▇
▇▇▇▇▇-▇▇ problems are the most urgent and indicate severe action is
required. This is generally defined as a "system down" situation in
which a Euronet application is out of service or there is a high risk
of financial loss as a result of the problem and the Customer is unable
to identify and mitigate the risk through operational means.
The CSR will take immediate action to resolve. The direct manager of
the CSR, the Account Relationship Manager, and the Vice President of
Customer Service will be notified immediately. If within four (4) hours
the problem has not been corrected, the CSR will escalate to management
so as to facilitate assignment of additional resources to resolve the
problem. Euronet will continue working around the clock until the
problem is corrected and the system is operational. Customer also
commits to around the clock
EURONET CONFIDENTIAL
page - 29
involvement and will remain onsite and involved in the resolution of
the problem. If within 48 hours the condition is not resolved, a
determination will be made jointly by Customer and Euronet as to
whether an onsite presence by a Euronet resource is required. Such
onsite support will be provided at no cost to Customer (and shall not
count towards the two (2) man years of Support Services), except that
Customer will reimburse Euronet for travel and lodging expenses.
EURONET CONFIDENTIAL
page - 30
EXHIBIT G
Disclosure Regarding Virus Warranty
None.
EXHIBIT H
Disclosure Regarding Embedded Third Party Products
None.
