EXHIBIT 10.2
DRAFT: NOVEMBER 25, 1996
SOFTWARE LICENSE AGREEMENT
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THIS SOFTWARE LICENSE AGREEMENT (this "Agreement") is entered into as
of ___________, 1996, between Integrated Payment Systems Inc., a Delaware
corporation ("IPS"), and MoneyGram Payment Systems, Inc., a Delaware corporation
(the "Company").
WHEREAS, IPS, First Data Technologies, Inc., a Delaware corporation
("FDT"), and the Company are parties to the Operations Agreement dated as of the
date hereof (the "Operations Agreement"), pursuant to which IPS and FDT will
provide, inter alia, certain data processing services to the Company; and
WHEREAS, IPS wishes to grant to the Company a license to use the
Utility Software (as hereafter defined) on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants,
representations, conditions and agreements hereafter expressed, the Parties (as
hereafter defined) agree as follows:
1. Definitions. In this Agreement, unless the context shall
otherwise require, the capitalized terms used herein shall have the respective
meanings specified or referred to in this Section 1. Each agreement referred to
in this Agreement shall mean such agreement as amended, supplemented and
modified from time to time to the extent permitted by the applicable provisions
thereof and hereof. Each definition in this Agreement includes the singular and
the plural, and reference to the neuter gender includes the masculine and
feminine where appropriate. References to any statute or regulations means such
statute or regulations as amended at the time and include any successor
legislation or regulations. The headings to the sections hereof are for
convenience of reference and shall not affect the meaning or interpretation of
this Agreement. Except as otherwise stated, reference to Sections and Exhibits
means the Sections and Exhibits of this Agreement. The Exhibits are hereby
incorporated by reference into and shall be deemed a part of this Agreement.
Unless the context clearly indicates otherwise, the word "including" means
"including but not limited to".
"Affiliate" means, with respect to any Person, any other Person which,
directly or indirectly, controls, is controlled by or is under common control
with such Person;
provided, however, that IPS and its Affiliates shall not be deemed Affiliates of
the Company and the Company and its Affiliates shall not be deemed Affiliates of
IPS.
"Agreement" shall have the meaning set forth in the first paragraph
hereof.
"Business" means the Consumer Money Wire Transfer Services marketed
under the name "MoneyGram"(SM) and the sales and distribution of a "MoneyGram"
phonecard.
"Company" shall have the meaning set forth in the first paragraph of
this Agreement.
"Consequential Damages" means any liability, Loss, Expense or damage,
whether in an action arising out of breach of warranty, breach of contract,
delay, negligence, theory of tort, strict liability or other legal or equitable
theory, for indirect, special, reliance, incidental, punitive or consequential
damages or commercial loss, injury or damage, including loss of revenues,
profits or use of capital or production.
"Consumer Money Wire Transfer Services" means the service of
transferring the right to money using computer or telephone lines, or any
technology now existing or later developed, from one person to a different
person through a MoneyGram Agent and the services marketed under the phrases
"Express Payment" and "Cash Advance."
"Contribution Agreement" means the Contribution Agreement dated as of
the date hereof among the Company, IPS and First Data Corporation, a Delaware
corporation.
"Costs" means all direct costs, expenses and charges plus all indirect
costs, expenses and charges, excluding allocations of overhead.
"Data Processing Services" means the data processing services provided
by IPS and its Affiliates to the Company under the Operations Agreement.
"Dispute" means any and all disputes, controversies or claims between
the Parties arising from or in connection with this Agreement or the
relationship of the Parties whether based on contract, tort, common law, equity,
statute, regulation, order or otherwise.
"Expenses" means any and all reasonable expenses incurred in
connection with investigating, defending or asserting
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any claim, action, suit or proceeding incident to any matter indemnified against
hereunder (including court filing fees, court costs, witness fees and reasonable
fees and disbursements of legal counsel, investigators, expert witnesses,
accountants and other professionals).
"FDT" shall have the meaning set forth in the first recital to this
Agreement.
"Force Majeure Event" shall have the meaning specified in Section
10(c).
"Governmental Body" means any foreign, federal, state, local or other
governmental authority or regulatory body.
"Intellectual Property" means any United States patent, trademark,
service xxxx, trade dress, logo, trade name, copyright, mask work, trade
secret, confidential information, publicity and privacy rights or other similar
or related property right.
"IPS" shall have the meaning set forth in the first paragraph of this
Agreement.
"Losses" means any and all losses, Costs, obligations, liabilities,
settlement payments, awards, judgments, fines, penalties, damages, deficiencies
or other charges.
"MoneyGram Agent" means a Person that has contracted with Travel
Related Services, IPS or the Company, as the case may be, to provide the
Consumer Money Wire Transfer Services provided by the Business.
"MoneyGram Application Software" shall have the meaning set forth in
the Contribution Agreement.
"Operations Agreement" shall have the meaning set forth in the first
recital to this Agreement.
"Party" means a party to this Agreement and its permitted successors
and assigns.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or Governmental Body.
"PC MoneyGram Application Software" shall have the meaning set forth
in the Contribution Agreement.
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"Services" shall have the meaning set forth in Section 5(a).
"Travel Related Services" means American Express Travel Related
Services Company, Inc., a New York corporation.
"Utility Software" means that certain software owned by or licensed to
IPS or its Affiliates used in the Business, together with the documentation (if
any) relating thereto as described in Exhibit A.
2. License Grant.
(a) Utility Software. IPS hereby grants to the Company a perpetual,
irrevocable, worldwide, nonexclusive, royalty-free license to use the Utility
Software in the Business or for any other purpose. The foregoing license shall
include the right to assign, transfer and modify the Utility Software and to
distribute, license or sublicense derivative works incorporating the Utility
Software.
(b) Reservation. All right, title and interest in and to the Utility
Software, other than those rights expressly granted herein, shall remain in IPS
and its licensors.
(c) Assignment. The Company may assign any of its rights under this
Agreement (whether by operation of law or otherwise), including the license
granted pursuant to this Section 2, in accordance with the provisions of Section
10(e).
(d) Company Covenants. The Company hereby agrees that it will use
reasonable efforts to cause any licensee, sublicensee or assignee with respect
to the Utility Software licensed to the Company pursuant to this Agreement to
comply with the terms and conditions of this Agreement.
3. Delivery of Software.
(a) Initial Delivery. Within 90 days of the Parties' execution of
this Agreement, IPS shall deliver to the Company the Utility Software (including
the source code, object code, JCLs and existing documentation) in the form and
format set forth in Exhibit B.
(b) Final Delivery. Upon (i) the termination of all of the Data
Processing Services, whether as a result of the termination of the Operations
Agreement, in whole or in
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part, and (ii) the Parties having executed and delivered an amendment to
Exhibit A, in form and substance reasonably acceptable to each Party, which
amendment shall set forth a description of the Utility Software as of the
date of such amendment, IPS shall deliver to the Company the Utility
Software in the form and format set forth in Exhibit B, such delivery to
include all modifications, enhancements, updates and revisions made by IPS
on behalf of the Company through the date of such final delivery.
4. Ownership (and Distribution) of Software and Modifications Thereto
Developed by the Company. As between the Company and IPS, the Parties
acknowledge and agree that IPS and its licensors shall own all right, title and
interest in and to the Utility Software. Subject to such ownership rights in
the Utility Software, as between IPS and its licensors and the Company, the
Company shall own all right, title and interest in and to all modifications it
creates to the Utility Software.
5. Transition Responsibilities.
(a) Services. IPS or its Affiliates shall provide the Company with
up to 500 hours of training and application support relating to the Utility
Software (the "Services") at locations and times agreed to by IPS and the
Company over the period beginning on the date hereof through the date that
is 90 days after final delivery of the Utility Software pursuant to Section
3(b). The Parties agree that an hour of Services shall mean any hour during
which one or more employees of the Company are receiving Services. At the
request of the Company, IPS shall provide the Company additional Services,
provided that the Company shall pay IPS for each such additional hour of
Services on a time and materials basis (i.e., not including allocations of
overhead associated with delivery of such Services) and for the travel and
lodging expenses of its employees who perform the Services.
(b) No Other Services. Except as contemplated by Section 5(a), IPS
shall have no responsibility to update, maintain or support the Utility
Software.
6. Representations and Warranties; Disclaimers.
(a) By IPS. IPS represents and warrants to the Company that: (i) IPS
has all right, power and authority to enter into and perform its
obligations set forth in this Agreement in accordance with its terms
without the consent of any third Person; (ii) the Utility Software as
delivered
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to the Company will not infringe or violate any Intellectual Property of
any third Person; (iii) all Services provided herein shall be provided in a
professional and workmanlike manner; and (iv) the Utility Software, the PC
MoneyGram Application Software and the MoneyGram Application Software
constitute all of the software required to process Consumer Money Wire
Transfer Service transactions for the Business as conducted on the date
hereof.
(b) By the Company. The Company represents and warrants to IPS that
the Company has all right, power and authority to enter into and perform
its obligations set forth in this Agreement in accordance with its terms
without the consent of any third Person.
(c) No Other Warranties; Disclaimer. EXCEPT FOR THE EXPRESS
WARRANTIES SET FORTH HEREIN, THE UTILITY SOFTWARE AND THE SERVICES PROVIDED
TO THE COMPANY HEREUNDER ARE PROVIDED ON AN "AS-IS" BASIS WITHOUT ANY
REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER. EXCEPT AS SET FORTH
HEREIN OR IN ANY OTHER AGREEMENT TO WHICH IPS AND THE COMPANY ARE PARTIES,
IPS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO THE
COMPANY OR ANY OTHER PERSON, INCLUDING ANY WARRANTIES REGARDING THE
MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR PURPOSE
OR OTHERWISE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE
PARTIES OR CUSTOM OR USAGE OF TRADE), OR RESULTS TO BE DERIVED FROM THE USE
OF THE SOFTWARE OR THE SERVICES PROVIDED HEREUNDER.
7. Disclaimer of Liability. NOTWITHSTANDING ANY OTHER PROVISION TO
THE CONTRARY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL IPS, ANY OF ITS
AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
SUBCONTRACTORS BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT,
WHICH ARE HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER
EITHER PARTY OR ANY OTHER SUCH PERSON HAS BEEN ADVISED, OR COULD HAVE FORESEEN,
OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING REPRESENTS AN EXPRESS
ALLOCATION OF RISK BETWEEN THE PARTIES.
8. Indemnification.
(a) Indemnification by IPS. Subject to Section 9, IPS shall
indemnify and hold the Company harmless against any and all Losses and
Expenses arising out of or related to (i) the breach of any warranty or the
inaccuracy of any representation of IPS contained in this Agreement, (ii)
the breach by IPS of any of its covenants in this Agreement or
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(iii) any claim that the Company's use or possession of the Utility
Software or the license granted hereunder, infringes or violates the
Intellectual Property of any third Person. If a final injunction is
obtained against the Company's use of the Utility Software by reason of
such infringement, or if in IPS' opinion the Utility Software is likely to
become the subject of a claim for such infringement, IPS shall, at its sole
option and expense: (i) procure for the Company the right to continue using
the Utility Software, or any portion thereof, in the manner permitted
hereunder; or (ii) replace or modify the Utility Software, or any portion
thereof, so that it becomes noninfringing.
(b) Indemnification by the Company. Subject to Section 9, the Company
shall indemnify and hold IPS and its Affiliates harmless against any and
all Losses and Expenses arising out of or related to the breach by the
Company of any of its covenants in this Agreement.
(c) Limitation of Indemnification Obligations. Notwithstanding
anything to the contrary set forth in this Agreement: (i) the remedies in
Section 8(a) shall be the Company's sole remedies in the event of a
successful claim of Intellectual Property infringement; and (ii) IPS shall
have no liability to the Company under this Section 8 if (1) any
infringement is based upon the Company's use of the Utility Software in
combination with any software not furnished by IPS, (2) the Utility
Software is used in a manner for which it is not designed or (3) the
infringement is based upon modifications of the Utility Software made by or
for the Company.
(d) Procedure. IPS or the Company, as the case may be (the
"Indemnifying Party"), shall indemnify the indemnified party under this
Section 8 (the "Indemnified Party") as set forth in this Section 8 provided
that: (i) the Indemnified Party promptly notifies the Indemnifying Party in
writing of the claim; (ii) the Indemnifying Party has sole control of the
defense and all related settlement negotiations with respect to the claim,
provided, however, that the Indemnified Party has the right, but not the
obligation, to participate in the defense of any such claim or action
through counsel of its own choosing and at it's sole expense; and (iii) the
Indemnified Party cooperates fully to the extent reasonably necessary, and
executes all documents reasonably necessary for the defense of such claim.
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9. Dispute Resolution. Any Dispute shall be resolved in accordance
with Article 11 of the Operations Agreement, the provisions of which are
incorporated herein by reference.
10. Miscellaneous.
(a) Expenses. Except as otherwise provided herein, each of the
Parties shall pay all Costs incurred by it or on its behalf in connection
with its performance and compliance with all its obligations under this
Agreement, including fees and expenses of its own financial consultants,
accountants and counsel.
(b) Relationship of Parties. IPS, in furnishing Services to the
Company under this Agreement, is acting only as an independent contractor.
Except as set forth in this Agreement, IPS does not and shall not undertake
by this Agreement or otherwise to perform any obligation of the Company,
whether regulatory or contractual, or assume any responsibility for the
Company's business or operations. IPS has the sole and exclusive right and
obligation to supervise, manage, contract, direct, procure, perform or
cause to be performed, all work to be performed by IPS under this
Agreement, unless otherwise provided herein.
(c) Force Majeure. Each Party shall be excused from the performance
of obligations (other than payment obligations) under this Agreement, for
any period and to the extent that it is prevented, restricted or delayed
from or interfered with in performing any of its obligations under this
Agreement, in whole or in part, as a result of labor disputes, strikes,
work stoppages or delays, acts of God, severe weather, failures or
fluctuations in utilities or telecommunications equipment or service,
shortages of materials or rationing, civil disturbance, acts of public
enemies, blockade, embargo or any law, order, proclamation, regulation,
ordinance or court order or requirement having legal effect of any judicial
authority or Governmental Body, or any other act or omission whatsoever,
whether similar or dissimilar to the foregoing, which are beyond the
reasonable control of such Party (each, a "Force Majeure Event"), and such
nonperformance shall not be a breach or default under this Agreement, or a
ground for termination of this Agreement. Each Party shall give the other
Party immediate notice of any Force Majeure Event affecting the notifying
Party's ability to perform under this Agreement and shall promptly update
the other Party regarding the notifying Party's efforts to mitigate and
resolve such Force Majeure Event.
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(d) Entire Agreement. This Agreement, including the Exhibits hereto,
and the provisions of the Operations Agreement expressly referenced herein,
constitute the entire agreement among the Parties with regard to the
subject matter hereof and thereof, and supersede all other prior
agreements, understandings or discussions among the Parties concerning the
subject matter hereof and thereof. This Agreement may not be amended or
modified except in writing signed by an authorized representative of each
Party.
(e) Assignment. IPS may assign its rights and delegate its duties
and obligations hereunder to any of its Affiliates, provided such Affiliate
remains an Affiliate of IPS after such an assignment and that
notwithstanding such assignment IPS shall remain primarily liable for all
of its obligations hereunder. The Company may assign, transfer, sublicense
and/or delegate its rights and duties under this Agreement, in whole or in
part, in accordance with the license grant set forth in Section 2(a),
provided that such assignee, transferee, sublicensee or delegatee agrees to
be bound in writing to the terms and conditions of this Agreement, and,
notwithstanding such assignment, the Company shall remain primarily liable
for all of its obligations hereunder. Subject to the foregoing, this
Agreement shall extend to and be binding upon and inure to the benefit of
the Parties and their respective successors and permitted assigns. Except
as contemplated by Section 8 in respect of an Indemnified Party, nothing in
this Agreement is intended to or shall be construed to confer upon any
Person other than the Parties, and their respective successors and
permitted assigns, any right, remedy or claim under or by reason of this
Agreement.
(f) Notices. All notices which any Party may be required or desire
to give to any other Party shall be in writing and shall be given by
personal service, telecopy, registered mail or certified mail (or its
equivalent) or overnight courier to the other Party at its respective
address or telecopy telephone number set forth below. Mailed notices and
notices by overnight courier shall be deemed to be given upon actual
receipt by the Party to be notified. Notice delivered by telecopy shall be
confirmed in writing by overnight courier and shall be deemed to be given
upon actual receipt by the Party to be notified.
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In the case of IPS:
Integrated Payment Systems Inc.
0000 Xx. Xxxxxx Xx., Xxxxx 000XX
Xxxxxxxxx, XX 00000
Attention: Xxxxx Willing
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
With a copy to:
First Data Corporation
0000 X. 000xx Xxx. NP 30
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
In the case of the Company:
MoneyGram Payment Systems, Inc.
0000 Xxxx Xxxxxxxxx Xxx.
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
With a copy to:
MoneyGram Payment Systems, Inc.
0000 Xxxx Xxxxxxxxx Xxx.
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
A Party may from time to time change its address for notification purposes
by giving the other Party prior written notice of the new address and the
date upon which it shall become effective.
(g) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(h) Governing Law. Subject to the provisions referenced in Section
9, this Agreement shall be governed by and construed in accordance with the
internal laws (as
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opposed to the conflict of laws provisions) of the State of New York.
(i) Waiver. Any term or provision of this Agreement may be waived,
or the time for its performance may be extended, by the Party entitled to
the benefit thereof. Any such waiver shall be validly and sufficiently
authorized for the purposes of this Agreement if, as to any Party, it is
authorized in writing by an authorized representative of such Party. The
failure of any Party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in
any way to affect the validity of this Agreement or any part hereof or the
right of any Party thereafter to enforce each and every such provision. No
waiver of any breach of this Agreement shall be held to constitute a waiver
of any other or subsequent breach. Except as specifically provided
otherwise, all remedies provided for in this Agreement shall be cumulative
and in addition to and not in lieu of any other remedies available to any
Party at law, in equity or otherwise.
(j) Severability. Wherever possible, each provision hereof shall be
interpreted in such manner as to be effective and valid under applicable
law, but in case any one or more of the provisions contained herein shall,
for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without
invalidating the remainder of such invalid, illegal or unenforceable
provision or provisions or any other provisions hereof, unless such a
construction would be unreasonable.
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IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to
be signed and delivered by its duly authorized officer as of the date first
written above.
MONEYGRAM PAYMENT SYSTEMS, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
INTEGRATED PAYMENT SYSTEMS INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
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EXHIBIT A
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UTILITY SOFTWARE
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EXHIBIT B
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FORM AND FORMAT OF DELIVERY OF UTILITY SOFTWARE
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IPS shall deliver the source code, object code, JCLs and existing
documentation (if any) relating to the Utility Software on magnetic media to be
mutually agreed upon. Upon delivery, the Utility Software shall be configured
substantially as it was configured on the system of IPS (independent of software
that related solely to performing functions unrelated to the Business) such that
the Utility Software is capable of being operated on the system of a Person
other than IPS, provided that such system executes using a multiple virtual
language system (MVS) similar to the MVS currently used by IPS to execute the
Utility Software.
