Exhibit 10.25
Agreement dated this 9th day of July, 2002 by and between Triaton GmbH
("Triaton"), a company of ThyssenKrupp Information Services GmbH organized under
the laws of Germany, and Internet Commerce Corporation ("ICC"), a Delaware
corporation.
WHEREAS, Triaton or its predecessor and ICC entered into a Joint
Services Agreement dated July 28, 2000 (the "Joint Services Agreement"); and
WHEREAS, Triaton and ICC desire to terminate the Joint Services
Agreement and enter into a different business arrangement;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
1. Termination of the Joint Services Agreement. Effective upon ICC's
receipt of the first installment payment to be made by Triaton pursuant to
paragraph 3 of this Agreement, the Joint Service Agreement and the Agreement of
the "Hilton meeting" of July 20, 2001 shall be terminated and of no further
force or effect and neither Triaton nor ICC shall have any further rights,
obligations or liabilities thereunder; provided, however, that the provisions of
items 3.3.1 and 3.4.1 of the Joint Services Agreement shall remain in full force
and effect in accordance with their terms.
2. Grant of License; Support of System and Software; Revenue Share. (a)
License. ICC hereby grants and delivers to Triaton, and Triaton hereby accepts
delivery of and agrees to pay for in accordance with this Agreement through
December 31, 2002 with regard to hosting in Continental Europe, an exclusive,
and thereafter, a non exclusive, right and license (the "License") to use ICC's
electronic data interchange system (the "System") in its most recent version,
including the proprietary software forming a part thereof (the "Software"), for
the purpose of providing the direct electronic interchange of data and documents
utilizing the internet (the "Services") anywhere in the continent of Europe,
Great Britain and Ireland (the "Territory") for a five year term (the "Term").
Triaton shall not have any right to sell, assign, transfer, convey, license or
sublicense or otherwise distribute the License, or any part thereof or interest
therein, to any other individual or entity, except that Triaton may sublicense
one of its controlled affiliates to provide the Services in the Territory during
the Term. Triaton shall also have the right to provide and use the Service with
its clients. Additionally, during the Term, ICC agrees to assist Triaton in its
efforts to successfully sell the Services referenced herein. At Triaton's
request ICC shall provide sales support on ICC's standard terms and conditions
for which ICC shall invoice Triaton on a monthly basis if applicable.
(b) Support of Software. Beginning in January, 2003 at Triaton's
option, ICC will provide to Triaton revisions to and new versions of the
Software during the Term for $100,000, per year, payable by wire transfer in
four equal quarterly installments of $25,000 each payable on January 1, April 1,
July 1, and October 1.
(c) Support of System. At Triaton's option, ICC shall provide
customer support for the System on ICC's standard terms and conditions for which
ICC shall invoice Triaton on a monthly basis.
3. Purchase Price; Payment Terms. The purchase price for the License is
$3,000,000, of which $1,500,000 is payable by wire transfer on July 9, 2002 and
the balance is payable by wire transfer of $ 1,500,000 on October 1, 2002.
4. Title to Intellectual Property. ICC shall retain all right, title
and interest in and to the Software and the System, subject to the License
granted to Triaton pursuant to this Agreement. Except for the License, Triaton
shall have no right, title or other interest in or to the Software or the System
or any part thereof.
5. WARRANTIES OF ICC. EXCEPT AS SPECIFICALLY SET FORTH BELOW IN THIS
PARAGRAPH 5, ICC MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO
THE SOFTWARE OR THE SYSTEM, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR
WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ANY AND
ALL OF WHICH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
NOTWITHSTANDING THE FOREGOING, ICC DOES HEREBY REPRESENT AND WARRANT TO TRIATON
THAT (A) THE SOFTWARE AND THE SYSTEM DO NOT INFRINGE IN ANY MATERIAL RESPECT ANY
COPYRIGHT OR TRADE SECRET OR, TO THE BEST OF ICC'S KNOWLEDGE, ANY TRADEMARK,
SERVICE XXXX OR PATENT OF ANY OTHER INDIVIDUAL OR ENTITY AND THE USE OF THE
SOFTWARE AND THE SYSTEM PURSUANT TO THE LICENSE AND IN ACCORDANCE WITH THE TERMS
OF THIS AGREEMENT DO NOT VIOLATE THE COPYRIGHTS OR TRADE SECRETS OR, TO THE BEST
OF ICC'S KNOWLEDGE, ANY TRADEMARKS, SERVICE MARKS OR PATENTS OF ANY OTHER
INDIVIDUAL OR ENTITY, AND (B) THE SYSTEM WILL PERFORM IN ALL MATERIAL RESPECTS
IN ACCORDANCE WITH ICC'S PUBLISHED SPECIFICATIONS THEREFOR; PROVIDED, HOWEVER,
THAT IN NO EVENT SHALL ICC BE LIABLE FOR ANY BREACH OF THE REPRESENTATIONS OR
WARRANTIES CONTAINED IN THIS SENTENCE IN AN AMOUNT IN EXCESS OF THE PURCHASE
PRICE FOR THE LICENSE AND IN NO EVENT SHALL TRIATON BE ENTITLED TO LOST PROFITS
OR OTHER CONSEQUENTIAL DAMAGES OR PUNITIVE DAMAGES AS A RESULT OF A BREACH BY
ICC OF SUCH REPRESENTATIONS OR WARRANTIES.
6. Confidentiality. (a) Confidentiality. Triaton shall keep
confidential all of the specifications and other information about the Software
and the System and all information that it, or any of its affiliates, receives,
gains access to or learns about from ICC, or any of ICC's affiliates, in the
course of, or in connection with, this Agreement, whether furnished orally or in
writing, and whether or not specifically identified as "confidential," except
that Triaton may disclose such information to its officers, employees,
consultants and representatives who have a need to know such information so long
as any such person is informed of the confidential nature of such information
and this confidentiality provision, and Triaton shall be fully liable for any
disclosure of such confidential information by any such person.
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(b) ICC shall keep confidential any proprietary information of
Triaton or its affiliates that ICC, or any of its affiliates, received, gained
access to or learned about from Triaton, or any of Triaton's affiliates, in the
course of, or in connection with, the Joint Services Agreement, whether
furnished orally or in writing, and whether or not identified as "confidential,"
and ICC shall keep confidential all proprietary information of Triaton that it
or any of its affiliates receives, gains access to or learns about from Triaton,
or any of Triaton's affiliates, in the course of, or in connection with,
performing the support services contemplated by paragraphs 2(b) and (c) of this
Agreement, whether furnished orally or in writing, and whether or not
specifically identified as "confidential," except that ICC may disclose such
information to its officers, employees, consultants and representatives who have
a need to know such information so long as any such person is informed of the
confidential nature of such information and this confidentiality provision, and
ICC shall be fully liable for any disclosure of any such confidential
information by any such person.
(c) The provisions of paragraphs 6(a) and (b) of this Agreement
shall not apply to information which becomes generally available to the public
other than as a result of a breach of a confidentiality obligation under this
Agreement, was or becomes available to Triaton or ICC, as the case may be, on a
non-confidential basis or is required by law to be disclosed.
(d) Both parties agree to refrain from making any disparaging
communications of any kind regarding each other to any person or organization
through the Terms of this Agreement.
(e) Injunctive Relief. In the event of any breach or threatened
breach of any provision of paragraph 6(a) of this Agreement, ICC shall, in
addition to any other right or remedy, be entitled to obtain a preliminary and
permanent injunction against such breach or threatened breach without posting
any bond and without proving that monetary damages would be an inadequate
remedy.
7. Miscellaneous.
(a) Entire Agreement; Amendments and Waivers. This Agreement
constitutes the entire understanding of the parties with respect to the
termination of the Joint Services Agreement and the grant of the License and
supersedes all prior or contemporaneous communications, understandings and
agreements, whether written or oral, with respect to the subject matter of this
Agreement. No amendment to or modification of this Agreement shall be binding or
effective unless set forth in a writing that is duly executed by both Triaton
and ICC. No waiver of any provision of this Agreement, or the breach thereof,
shall be effective unless it is set forth in a writing that is duly executed by
the party giving such waiver, and no waiver on any one occasion or with respect
to any provision shall be effective on any other occasion or with respect to any
other provision on the same or any other occasion.
(b) Binding Nature; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. This Agreement may not be assigned by either party hereto
without the express prior written consent of the other party hereto, except as
specifically provided in paragraph 2 of this Agreement.
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(c) Severability. The provisions of this Agreement shall be
severable and if any provision of this Agreement is found by a court of
competent jurisdiction to be unenforceable, the other provision of this
Agreement shall nevertheless be enforced in accordance with their terms.
(d) Choice of Law. This Agreement shall be subject to Swiss law. The
law in connection with the UN Convention on the sale of goods shall be excluded.
All disputes arising out of or in connection with this Agreement shall be
exclusively and finally settled by arbitration according to the rules of the
International Chamber of Commerce, with Zurich as venue, three arbitrators and
in English.
(e) Notices. Any and all notices or other communications under or
pursuant to this Agreement shall be in writing, addressed to the parties at the
address and person's attention set forth on the signature page of this Agreement
and shall be given by reputable overnight delivery service or by telecopy to the
facsimile number set forth on the signature page of this Agreement. Notices
shall be deemed given and effective when received. Any party may change the
address, person's attention or facsimile number to which notices shall be given
by giving notice thereof in accordance with the provisions of this paragraph
7(e).
(f) Press Release. ICC shall cause a Press Release to be drafted
addressing the substance of this Agreement, and shall provide Triaton an
opportunity to review it prior to its issuance.
(g) Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original and all of which, taken together,
shall constitute the same agreement. Execution may be either manual or
facsimile.
(h) Headings. The paragraph and subparagraph headings of this
Agreement are for convenience of reference only and shall not alter or affect
the meaning or interpretation of any provision of this Agreement.
IN WITNESS WHEREOF, Triaton and ICC have duly executed and delivered
this Agreement as of the day and year first above written.
Dusseldorf, July 9, 2002
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Xxxxxx X. Xxxxxxx
President & CEO
TRIATON GMBH INTERNET COMMERCE CORPORATION
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