Exhibit 10.32
Version 3rh
THIS ALLIANCE AGREEMENT is made and entered into this the 7th day of November
2001.
BETWEEN: SMART CHIP TECHNOLOGIES, LLC a Nevada corporation.
(hereinafter referred to as "SCTN")
AND: CONSUMER ECONOMIC OPPORTUNITIES INC., a corporation incorporated under
the Canadian Business Corporations Act
(hereinafter referred to as the "CEO")
WHEREAS CEO has the Exclusive Licence for a business model and proprietary
product for the Canadian Marketplace, the CREDITZ System, that helps businesses
to optimize their direct marketing, mass marketing, customer loyalty and
Customer Relationship Management (CRM) objectives. The digital currency is at
the core of this platform and facilitates digital payments, POS Terminals,
frequency incentives, personalized communications, electronic xxxx presentment,
web to print and other applications;
WHEREAS SCTN is a software and technology company with a patent protected
e-llegiance(tm) loyalty application for use in the smart card and wireless
environment. The software is designed to operate on smart cards, point-of-sale
terminals, and smart devices, such as personal digital assistants. SCTN also
provides complete loyalty program management, transaction processing, and
accounting services through its LoyaltyCentral(tm) software and back office
operation;
WHEREAS SCTN and CEO have determined that they would benefit from a joint
technology development, exchange, and marketing alliance;
NOW, THEREFORE, in consideration of the mutual premises contained in this
Agreement, the Parties agree as follows:
1. DEFINITIONS
"Agreement" means this agreement, including all appendices attached
hereto from time to time and forming a part hereof.
"Client" means a business, organisation or individual that engages the
Parties to provide the services contemplated under this Agreement.
"Parties" means SCTN and CEO, and "Party" means either of them.
"POS Terminal" means transaction automation equipment used to obtain
authorizations for credit/debit cards and CREDITZ, and to provide a
settlement/transfer vehicle for electronic data capture.
2. JOINT CEO AND SCTN OBLIGATIONS
2.1 SCTN and CEO have agreed that SCTN will integrate the CREDITZ
System within its smart card loyalty system e-llegiance(tm)
and LoyaltyCentral(tm) product offering, as well, CEO will
integrate with SCTN's e-llegiance(tm) and LoyaltyCentral(tm)
applications. The agreement also includes CEO's customer
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lifetime management capabilities to provide business
intelligence to SCTN's clients worldwide. CEO will provide
SCTN its client's privacy solutions available through it's
CREDITZ system.
This agreement includes the co-marketing of the CREDITZ
system, which includes "Audience of One" (1 to 1 marketing
solution), and free merchant EMV POS terminal offers which can
be integrated with clients of SCTN.
Terms and conditions of SCTN's use of CEO's lifetime
management capabilities, privacy solutions and 1 to 1
marketing solutions to [be](1) mutually agreed to by the
parties.
2.2 SCTN will be able to provide its clients the ability to offer
CREDITZ-enabled POS Terminals using EMV standards to their
merchants free of charge. Subject to CEO terms and conditions
to be mutually agreed to by the parties.
2.3 The Parties have agreed that CEO will engage SCTN to supply
its smart chip platform to enable CEO to transfer its Loyalty
Aggregation Program on a smart chip platform.
2.4 The Parties will identify and notify each other of any
existing or potential customers who may also require any other
products or services offered by the other Party.
2.5 The Parties acknowledge that CREDITZ Digital currency is the
preferred brand to monetize loyalty programs. SCTN will
identify and notify CEO of any existing or potential customers
who express interest in monetizing their loyalty program
points or miles into CREDITZ. As such, subject to certain
terms and conditions, SCTN will receive a fee for
introductions to existing and other potential customers of Ten
percent (10%) of the .98 basis points CEO receives from each
CREDITZ transaction in Canada resulting from such efforts by
SCTN.
2.6 The Parties have agreed to create joint and reciprocal revenue
streams from each application to be defined throughout the
term of this agreement, which will be added as additional
schedules to this agreement from time to time.
3. TERM AND TERMINATION
3.1 This Agreement shall commence as of the date first written
above, and unless terminated earlier as provided herein shall
continue in effect for a term of Three (3) year or the expiry
of the last Contract entered into pursuant to this Agreement,
whichever is later.
3.2 The Agreement can be terminated by either Party upon providing
the other Party with Ninety (90) days written notice.
3.3 Survival of Terms.
Sections 4, 5 and 6 shall survive any expiry or termination of
this Agreement.
4. CONFIDENTIALITY
4.1 SCTN and CEO shall execute the mutual non-disclosure agreement
attached as Appendix "A" (the "NDA"), which shall form part of
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1 This word is a handwritten insertion and initialled by JW.
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this Agreement. For the purposes of the NDA, the terms of this
Agreement shall be deemed to be Confidential Information as
defined in the NDA.
5. INTELLECTUAL PROPERTY RIGHTS
Nothing contained in this agreement shall be deemed, to grant to the
other Party any right or license in respect of any patents, inventions,
intellectual property or technical information at any time owned by
either Party.
6. INDEMNIFICATION
6.1 Indemnity.
SCTN agrees to defend, indemnify and hold harmless CEO, and
each of its employees, officers, directors and agents against
any claims, lawsuits, liabilities, losses, damages, costs and
expenses arising from any claim that the SCTN Product, as used
within the scope of this Agreement, infringes copyright,
trademark, patent or other Intellectual Property Rights of a
third party. CEO likewise agrees to defend, indemnify and hold
harmless SCTN, and each of its employees, officers, directors
and agents against any claims, lawsuits, liabilities, losses,
damages, costs and expenses arising from any claim that the
CEO Product, as used within the scope of this Agreement,
infringes copyright, trademark, patent or other Intellectual
Property Rights of a third party.
6.2 This obligation does not apply with respect to a claim which
arises (a) from the use of a superseded or modified release of
the other Party's Product, if such infringement would have
been avoided by the use of the current version or unmodified
release of the other Party's Product, (b) from the use,
operation, or combination of the other Party's Product with
programs, data, equipment, or materials not provided by the
Party to which the Product belongs, if such infringement would
have been avoided by the use of the other Party's Product
without such program, data, equipment or materials; (c) from
any modification made to the other Party's Product by any
Party other than the Party to which such Product belongs.
7. GENERAL
7.1 Relationship of the Parties
Nothing in this Agreement shall be construed as creating an agency,
joint venture, partnership, or formal business organisation of any
kind, and the rights and obligations of the Parties shall be only those
expressly stated in this document. Neither Party shall have authority
to bind the other.
7.2 Assignment
This Agreement may not be assigned by either Party without the prior
written consent of the other Party, such consent not to be unreasonably
withheld. Any attempt to assign this Agreement contrary to this section
shall be void and of no force and effect.
7.3 Notice
Any notice required or authorized to be given by either Party to the
other in accordance with the provisions of this Professional Services
Agreement, unless otherwise specifically stipulated, shall be in
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writing and delivered personally, by mail or sent by facsimile. This
notice shall be addressed to the Parties as follows:
(a) SCTN's address:
SMART CHIP TECHNOLOGIES, LLC
00000 Xxxxxx Xxxxx Xxxxx #000
Xxxxx Xxxxx, XX 00000
Attention: Xxx Xxxxxxxx CEO/President
Facsimile: 000-000-0000
CEO's address:
Consumer Economic Opportunities Inc.
00 Xx. Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attn: Xxxxx Xxxxxx, Founder and CEO
Facsimile: 000-000-0000
and shall be considered to have been received the same day it was
delivered personally or sent by facsimile. Any notice sent by mail
shall be deemed to have been received the fifth day following the date
of mailing. In the event of an interruption of the postal services due
to a strike or to any other reason, the said notices shall be delivered
by messenger.
7.4 Non-Waiver
A failure or delay by either one of the Parties to exercise a right,
recourse or privilege pursuant to this Agreement shall not be
considered as being a waiver on the part of this Party to exercise such
a right, recourse or privilege.
7.5 Severability
Any decision from a court of competent jurisdiction to the effect that
any provision of this Agreement is null or unenforceable shall not in
any way affect the other provisions herein, their validity or executory
power.
7.6 Headings
The headings in this Agreement are inserted for convenience of
reference only and shall not affect the interpretation hereof.
7.7 Entire Agreement
This Agreement together with the attached appendices constitute the
entire Agreement between the Parties hereto with respect to the matters
dealt with herein and supersedes all prior representations,
negotiations, understandings and agreements oral or written, between
the Parties with respect to such matters.
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7.8 Applicable Law
This Agreement shall be governed by and construed according to the laws
of the Province of Ontario and the federal laws of Canada applicable
therein.
7.9 Further Assurances
The Parties covenant and agree to do such things, execute such further
documents, and cause their respective employees and agents to execute
such further documents as may be necessary or advisable from time to
time in order to carry out the terms of this Agreement in accordance
with its true intent.
7.10 Counterparts
This Agreement may be executed by the Parties in separate counterparts,
each of which when so executed and delivered shall be an original, but
all such counterparts shall together constitute one and the same
instrument
IN WITNESS WHEREOF, the Parties hereto have respectively caused this Agreement
to be executed by their duly authorised officers at the date first mentioned
above.
Consumer Economic Opportunities Inc. SMART CHIP TECHNOLOGIES, LLC
By: By: /s/ Xxx Xxxxxxxx
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Name: Xxxxx Xxxxxx Name:
Title: President, CEO Title: President & CEO
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APPENDIX "A"
THIS MUTUAL NON-DISCLOSURE AGREEMENT is made and entered into this the 7th day
of November 2001.
BETWEEN: SMART CHIP TECHNOLOGIES, LLC
a corporation incorporated under the laws of the United States
of America
AND: CONSUMER ECONOMIC OPPORTUNITIES INC.
a corporation incorporated under the Canada Business
Corporations Act
WHEREAS, the Parties are desirous of exchanging information relating to
confidential and more specifically relating, but not limited, to technical data,
marketing, business information, and pricing, all for the purpose of exploring
future potential business relationships to the mutual benefit of both Parties
hereto.
It is anticipated that each of the undersigned Parties shall, from time to time,
disclose to the other Party certain technical or business information. With
respect to all such information, including any reports or other documents
resulting from such exchange of information between the Parties. Each of the
Parties agree to the following terms:
1. "Confidential Information" means all information provided by either
Party in writing or visual form which Party desires to protect from
disclosure and which is marked with an appropriate stamp or legend
designating such material as "Confidential"; and all information
provided orally by a Party which that Party desires to protect from
disclosure provided that such information is identified as Confidential
at the time it is transmitted and is subsequently confirmed as such in
writing by the disclosing Party within fifteen (15) days after such
verbal transmittal.
2. For a period of five (5) years following the date of each such
disclosure or development the receiving Party shall maintain such
Confidential Information as confidential, except:
(a) Confidential Information which is or becomes known publicly
through no fault of the receiving Party; or
(b) Confidential Information learned by the receiving Party from a
third party entitled to disclose it; or
(c) Confidential Information already known to the receiving Party
before receipt from the disclosing Party as shown by the
receiving Party's written records; or
(d) Confidential Information which is independently developed by
the receiving Party as shown by the receiving Party's written
records; or
(e) Confidential Information which must be disclosed under
operation of law.
(f) Confidential Information which is approved for release by
written authorization of the disclosing Party
3. The receiving Party shall not, without prior written permission of the
disclosing Party, furnish to any third Party any information, equipment
or material embodying or made by use of any Confidential Information
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received or developed hereunder nor use such information for purposes
other than internal evaluation so long as such Confidential Information
must be maintained confidential. All Confidential Information in
tangible form, and any copies thereof, disclosed hereunder, shall be
promptly returned to the disclosing Party at the disclosing Party's
written request, or destroyed at the disclosing Parties request
provided that confirmation of destruction is given to the disclosing
Party.
4. The receiving Party shall protect the disclosed Confidential
Information by using the same degree of care, but no less than a
reasonable degree of care, to prevent the unauthorised use,
dissemination or publication of the Confidential Information.
5. In the event of any breach or threatened breach by the receiving Party
of its obligations hereunder, the disclosing Party shall have whatever
rights and remedies are available to it at law or in equity, provided,
however, that in no event shall either Party be liable for any
consequential damages of any nature whatsoever.
6. This Agreement shall not be construed as granting or conferring any
rights to license or otherwise, expressly, implied, or otherwise for
any invention, discovery or improvement made, conceived or acquired
prior to or after the date of this Agreement.
7. Neither Party shall disclose Confidential Information nor assign work
hereunder to anyone other than the receiving Party's employees who have
agreed in writing to maintain the Confidential Information as
confidential and to execute all documents deemed reasonably necessary
by the disclosing Party to permit compliance with all provisions of
this Agreement.
8. Nothing contained in this Agreement shall constitute a commitment by
either Party to the development or release of any future products
and/or programs disclosed thereby or restrict either Party in its
efforts to improve its existing products and systems and to conceive
and develop new products and systems. Additionally, participation in
the information exchange pursuant to this Agreement shall not
constitute or imply a commitment by either Party to favour or recommend
any product or service of the other Party.
IN WITNESS WHEREOF, the Parties hereto have respectively caused this Mutual
Non-disclosure Agreement to be executed by their duly authorized officers at the
date first mentioned above.
Consumer Economic Opportunities Inc. SMART CHIP TECHNOLOGIES, LLC
By: /s/ Xxxxx Xxxxxx By: /s/ Xxx Xxxxxxxx
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Name: Xxxxx Xxxxxx Name:
Title: President, CEO Title: President & CEO
