EXHIBIT 10.7
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (the "Agreement") is dated as
of April 27, 2001 (the "Effective Date"), and is by and between PaySys
International, Inc., a Florida corporation, and Delos Payment Systems, Inc., a
Delaware corporation.
WHEREAS, pursuant to that certain Contribution Agreement,
dated as of April 27, 2001, between PaySys and Delos (the "Contribution
Agreement"), PaySys transferred and assigned to Delos inter alia, all of its
right, title and interest in and to those certain computer software programs and
related materials generally known as the "dBB Software" as defined therein;
WHEREAS, in connection with the Contribution Agreement, Delos
agreed to grant PaySys a limited license to use the dBB System as set forth
herein; and
WHEREAS, Delos has agreed to make certain covenants that will,
for limited periods of time, restrict Delos from using the dBB Platform and dBB
Applications as set forth herein and from marketing or selling the same as set
forth herein.
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS. In this Agreement, the following terms have the meanings
specified or referred to in this Section 1 and shall be equally
applicable to both the singular and plural forms. In this Agreement,
the words "including", "include" and "includes" shall each be deemed to
be followed by the term "without limitation". Any agreement, schedule,
attachment or exhibit referred to herein shall mean such agreement,
schedule, attachment or exhibit as amended, restated, supplemented and
modified from time to time to the extent permitted by the applicable
provisions thereof and by this Agreement. References to any statute or
regulation means such statute or regulation as amended from time to
time and includes any successor statute or regulation. Unless otherwise
stated, references to recitals, articles, sections, paragraphs,
schedules and exhibits shall be references to recitals, articles,
sections, paragraphs, schedules and exhibits of this Agreement.
(a) "AAA" has the meaning set forth in Section 2(a) of Schedule 15(a).
(b) "ACCOUNT" shall mean an active or inactive physical, virtual or other
type of check card ATM card, debit card, credit card (including private
label and retail credit card), charge card, commercial card, bank card,
oil card, payment card, electronic benefit payment card, smart card,
stored value card or other similar card, device, program or similar or
replacement technology, whether presently existing or hereafter
invented, that is used directly or indirectly in connection with the
initiation, transmission, capturing, authorization, processing,
clearing, settlement or recording of related financial and monetary
transactions and related data capture and processing.
(c) "ACCOUNT-RELATED PROCESSING" shall mean services relating to the direct
or indirect initiation, transmission, capture, authorization,
processing, clearing, settling and recording of financial and monetary
transactions with respect to Accounts.
(d) "AFFILIATE" shall mean an entity (including any joint venture or
alliance) that, directly or indirectly, owns or controls, is owned or
is controlled by or is under common ownership or control with another
entity (including any joint venture or alliance). For purposes hereof,
an entity, shall be deemed to "own or control" another entity if and
for so long as it beneficially owns fifty percent (50%) or more of the
voting equity securities or other equivalent voting interests of the
other entity. Notwithstanding the foregoing, with respect to PaySys, if
that certain transaction contemplated by that certain Agreement and
Plan of Merger by and among First Data Corporation, PSI Merging
Corporation, PaySys International, Inc. and certain shareholders of
PaySys International, Inc. dated April 27, 2001 is consummated,
Affiliates of First Data Corporation, as well as the entities set forth
on Schedule 1(d) shall be deemed to be Affiliates of PaySys.
(e) "AGREEMENT" has the meaning set forth in the first paragraph.
(f) "ARBITRATION DEMAND" has the meaning set forth in Section 2(b) of
Schedule 15(a).
(g) "ARBITRATION PANEL" has the meaning set forth in Section 2(d) of
Schedule 15(a).
(h) "BASIC QUALIFICATIONS" has the meaning set forth in Section 2(b) of
Schedule 15(a).
(i) "▇▇▇▇ PAYMENT SERVICES" shall mean a ▇▇▇▇ payment service undertaken
through a Money Transfer Service whereby a Person sends money to a
▇▇▇▇▇▇ in exchange for a fee.
(j) "CHECK RELATED-PROCESSING" shall mean services relating to the direct
or indirect processing, verification, clearing, approval, settling and
recording of financial and monetary transactions with respect to Check
Services.
(k) "CHECK SERVICES" shall mean any one or any combination of check
verification, check guarantee, electronic check conversion and check
collection; provided that Check Services shall not include activities
related to the processing of checks through the Federal Reserve System
(other than those set forth herein) or the processing of any demand
deposit account on which a check is drawn or into which a check is
deposited.
(l) "CONFIDENTIAL INFORMATION" has the meaning set forth in Section 13(a).
(m) "CONTRIBUTION AGREEMENT" has the meaning set forth in the first
recital.
(n) "DBB APPLICATION" shall mean any computer software program, including
any DSL that is not a system DSL, and related user and technical
manuals, documentation and other materials that is created using the
dBB System.
2
(o) "DBB LIABILITIES" shall mean the liabilities listed on Schedule B of
the Contribution Agreement and assumed by Delos in accordance with
Section 3.2 of the Contribution Agreement.
(p) "DBB PATENT APPLICATION" shall mean each of the patent applications set
forth on Schedule 1(p), together with all letters patents, statutory
invention registrations, divisions, continuations and
continuations-in-part, reissues, renewals and extensions thereto.
(q) "DBB PLATFORM" shall mean the most current (as of the Effective Date)
Microsoft Windows NT version of that certain computer program commonly
known as the "dBB Platform", both in source code format in C++
programming language, and as compiled into executable code format,
(along with the Integrated Development Environment, including the
computer programs commonly known as the Localization Editor, the User
Admin Editor and the Visual Workflow Modeler, all of the application
program interfaces that are designed to be used in conjunction with the
computer application programs which are created using and/or executable
by the dBB Platform, the system DSLs, DSLs and development tools and
related documentation), all as identified in Schedule 1(q).
(r) "DBB SOFTWARE" shall mean the following: (i) the computer program known
as dBB Platform currently in source code format in the C++ programming
language, including all versions, including Versions 1.945(b), 3.106(b)
and 3.202 thereof; (ii) all of the computer programs commonly referred
to as "libraries" in dBB serial language which are created using and/or
executable by the dBB Platform; (iii) all of the computer application
programs in DSL which are created using and/or executable by the dBB
Platform, including the application programs known as B2B Prototype,
Apogee Prototype, Flooz Prototype, Fraud Dossier, Step Stone,
Commercial Card, ECDM, Desktop and Eservice; (iv) the computer programs
known as the Integrated Development Environment, including the computer
programs known as the Localization Editor, the User Admin Editor and
the Visual Workflow Modeler; (v) all of the application program
interfaces that are designed to be used in conjunction with the
computer application programs which are created using and/or executable
by the dBB Platform, including that certain application program
interface currently in common business oriented language (COBOL)
designed to be used in conjunction with the Fraud Dossier, Step Stone,
and/or commercial card application programs; and (vi) all corrections,
fixes, modifications, enhancements, updates, upgrades, new releases,
versions and translations of or to any of the foregoing, regardless of
whether made by PaySys or its employees, agents, contractors, customers
or licensees.
(s) "DBB SYSTEM" shall mean the dBB Platform and all Intellectual Property
embodied therein or relating thereto.
(t) "DBB THIRD PARTY SOFTWARE" shall mean the software, tools, utilities,
compilers, operating systems and the like as well as associated
documentation that as of the Effective Date is owned by Persons other
than Delos or its Affiliates that is required to be used in combination
with the source code relating to the dBB System for the effective
3
development, maintenance and implementation of the same, all as
identified in Schedule 1(t).
(u) "DELOS" shall mean Delos Payment Systems, Inc., a Delaware corporation,
and its permitted successors and permitted assigns.
(v) "DELOS INDEMNITEE" has the meaning set forth in Section 11(a).
(w) "DISPUTE" shall mean any and all disputes, controversies and claims
between the parties arising from or in connection with this Agreement
or the relationship of the parties under this Agreement whether based
on contract, tort, common law, equity, statute, regulation, order or
otherwise.
(x) "DISPUTING PARTY" has the meaning set forth in Section 2(a) of Schedule
15(a).
(y) "DSL" shall mean dBB serial language.
(z) "EFFECTIVE DATE" has the meaning set forth in the first paragraph.
(aa) "ENCUMBRANCE" shall mean any lien, claim, charge, security interest,
mortgage, pledge, easement, conditional sale or other title retention
agreement, defect in title, covenant or other restrictions of any kind
that could impair the ability of a Person to use or exploit the item
that is so encumbered.
(bb) "ESCROW AGENT" has the meaning set forth in Section 18(a).
(cc) "ESCROW AGREEMENT" has the meaning set forth in Section 18(a).
(dd) "ESCROW MATERIALS" has the meaning set forth in Section 18(a).
(ee) "INDEMNITEE" has the meaning set forth in Section 12(a).
(ff) "INDEMNITOR" has the meaning set forth in Section 12(a).
(gg) "INTELLECTUAL PROPERTY" shall mean any: (i) trademarks, trade names,
service marks, domain names, trade dress, logos and other similar
designations; (ii) copyrights and copyrightable works; (iii) patents,
patent rights, patent applications, inventions and trade secrets; and
(iv) other protectable property rights.
(hh) "MONEY TRANSFER PROCESSING" shall mean services relating to the direct
or indirect initiation, transmission, capture, authorization,
processing, clearing, settling and recording of financial and monetary
transactions with respect to Money Transfer Services.
(ii) "MONEY TRANSFER SERVICES" shall mean, following the consummation of the
merger contemplated by the certain Agreement and Plan of Merger by and
among First Data Corporation, PSI Merging Corporation, PaySys
International, Inc. and certain
4
shareholders of PaySys International, Inc., dated as of March 17, 2001,
any one or any combination of the services presently constituting all
of Western Union Financial Services, Inc.'s and its Affiliates' person
to person funds delivery services and funds disbursement services,
including, Domestic Money Transfer Services, International Money
Transfer Services, Mexico Money Transfer Services, Quick Collect,
Direct Connect, BidPay, Money Zap, Z-Cash, Quick Cash (including
Benefits Quick Cash), and Western Union Cash Card and any replacements
therefor.
(jj) "PAYSYS" shall mean PaySys International, Inc., a Florida corporation,
and its permitted successors and permitted assigns.
(kk) "PAYSYS AFFILIATE CUSTOMER" shall mean any Person for which any
Affiliate of PaySys other than any subsidiary of PaySys: (i) provides
services and/or software; or (ii) may in the future provide services
and/or software.
(ll) "PAYSYS CUSTOMER" shall mean any Person for which PaySys or any
subsidiary of PaySys: (i) provides services and/or software; or (ii)
may in the future provide services and/or software.
(mm) "PAYSYS INDEMNITEE" has the meaning set forth in Section 10.
(nn) "PERSON" shall mean an individual, corporation, limited liability
company, partnership, sole proprietorship, joint venture, or other form
of organization or governmental agency or authority.
(oo) "PROCESSOR" shall mean any Person other than PaySys and its Affiliates
that processes Accounts, performs Account-Related Processing, provides
Check Services or performs Check-Related Processing, in each case for
third Persons.
(pp) "TRANSFERRED OPERATIONS" shall have the meaning set forth in Section
2(b)(i).
2. DELOS LICENSE GRANT.
(a) Subject to the terms and conditions of this Agreement, Delos hereby
grants to PaySys a non-exclusive, nontransferable (except as otherwise
provided in this Agreement), worldwide, perpetual, irrevocable (subject
to Section 14), royalty-free and fully paid up license to:
(i) use, execute, copy, modify and have modified the dBB System
solely for processing Accounts, performing Account-Related
Processing, providing Money Transfer Services, performing
Money Transfer Processing, providing Check Services and
performing Check-Related Processing internally and externally
(A) through any and all means now known or hereafter invented,
(B) on any and all operating environments and systems now
known or hereafter invented, and (C) on any and all media now
known or hereafter invented;
(ii) use, execute and copy the dBB Platform and use the dBB System
to create or have created modifications, enhancements,
upgrades, add-ons or similar computer
5
programs solely in connection with processing Accounts,
performing Account-Related Processing, providing Money
Transfer Services, performing Money Transfer Processing,
providing Check Services and performing Check-Related
Processing, provided that PaySys' and/or its Affiliates'
copyright in any such modifications, enhancements, upgrades,
add-ons or similar computer programs shall extend only to the
materials contributed by PaySys, its Affiliates or their
respective designees, as distinguished from the dBB Platform
itself;
(iii) prepare derivative works of the dBB Platform and use the same
in accordance with the limitations set forth in this Section
2, provided that PaySys' and/or its Affiliates' copyright in
any such derivative work shall extend only to the materials
contributed by PaySys, its Affiliates or their respective
designees, as distinguished from the dBB Platform itself;
(iv) sublicense executable versions of the dBB System and dBB
Applications created using the dBB System to customers of
PaySys and its Affiliates solely for use in connection with
processing Accounts, performing Account-Related Processing,
providing Money Transfer Services, performing Money Transfer
Processing, providing Check Services and performing
Check-Related Processing; and
(v) sublicense to any Affiliate of PaySys the rights granted in
Sections 2(a)(i), 2(a)(ii), 2(a)(iii) and 2(a)(iv) provided
that PaySys has delivered to Delos a writing executed by an
authorized representative of such Affiliate to abide by the
terms of this Agreement as if such Affiliate was an original
party to this Agreement.
(b) Divested or Transferred Operations.
(i) Should PaySys or any Affiliate of PaySys sell or otherwise
transfer the assets or equity ownership of any Affiliate
(which for purposes of this Section 2(b) shall include PaySys)
(hereafter "Transferred Operations"), such Transferred
Operations and its Affiliates shall continue to be afforded
use of the dBB System, provided that such Transferred
Operations or successor entity, as applicable, enter into that
certain agreement substantially in the form attached hereto as
Schedule 2(b)(i), which Delos shall execute at no additional
cost.
(ii) In addition, if such Transferred Operations or successor
entity, as applicable, desires to possess the source code for
the dBB Platform and have all rights previously afforded under
this Agreement, upon such Transferred Operations' or successor
entity's election, as applicable, and the payment to Delos of
two million dollars ($2,000,000), such Transferred Operations
or successor entity, as applicable, and its Affiliates shall
be entitled to possess the source code and exercise such
rights, provided that such Transferred Operations or successor
entity, as applicable, enter into that certain agreement
substantially in the form attached hereto as Schedule
2(b)(ii), which Delos shall execute at no additional cost. If
such Transferred Operations or successor entity, as
applicable, does not make the payment and enter into the
agreement as required by this Section 2(b)(ii)
6
within thirty (30) days after the effective date of the sale
or transfer, then such Transferred Operations shall promptly:
(A) delete all copies of the source code for the dBB Platform,
from all computers and storage devices, and at the Transferred
Operations' or successor entities' option, either immediately
return to Delos all copies of the source code for the dBB
Platform or destroy all copies of the source code for the dBB
Platform and certify to Delos the compliance with the
foregoing; and (B) enter into the agreement contemplated by
Section 2(b)(i).
(c) Reservation of Rights. Except for the limited rights expressly granted
herein, all rights are reserved by Delos, and, except as expressly
granted herein, nothing contained in this Agreement shall be construed
as conferring any right or license with respect to the dBB System upon
PaySys or its Affiliates, by implication, estoppel or otherwise.
3. DELIVERY OF THE DBB SYSTEM. The parties shall cooperate to specify the
timing of the delivery of the dBB System to PaySys as set forth on
Schedule 3.
4. COVENANTS AND RESTRICTIVE COVENANTS.
(a) Installation. No later than thirty (30) days after a request by PaySys,
Delos shall, at its sole cost and expense, install the dBB Platform
onto a PC and then ship the PC to a United States location reasonably
specified by PaySys.
(b) Training. Delos shall perform, at Delos' standard rates and at an
Atlanta, Georgia location reasonably specified by Delos, one training
session of six days, or two sessions of three days each, at PaySys'
election, to instruct no more than ten persons designated by PaySys
regarding the dBB Platform and the creation of dBB Applications using
the dBB Platform.
(c) Patent Applications.
(i) Delos shall use commercially reasonable efforts to cause
letters patents to be issued with respect to each of the dBB
Patent Applications at its sole cost and expense.
(ii) If Delos determines that it is not in its business interest to
cause letters patents to be issued with respect to any of the
dBB Patent Applications, Delos shall promptly notify PaySys of
the same so that, at PaySys' sole election, PaySys may
instruct Delos to continue to cause letters patents to be
issued with respect to each of the dBB Patent Applications at
PaySys' cost and expense. In such an event, ownership of any
such letters patents issued thereon shall remain with Delos,
and the rights of PaySys and its Affiliates with respect
thereto shall be as set forth in this Agreement. PaySys shall
pay, within thirty (30) days after receipt, all invoices for
costs reasonably incurred by Delos at the request of PaySys
pursuant to this Section 4(c)(ii). However, all such amounts
paid by PaySys to Delos shall be credited against any payments
due Delos pursuant to this Agreement.
(d) Processors. For a period of five (5) years following the Effective
Date, neither Delos nor any Affiliate of Delos shall directly or
indirectly:
7
(i) solicit, negotiate or effect the sale, transfer or assignment
to any Processor of any dBB Application, in whole or in part,
or the dBB System or any updates, modifications, enhancements
or derivative works thereto, in whole or in part, for the
purpose of processing Accounts, performing Account-Related
Processing, providing Check Services or performing
Check-Related Processing;
(ii) authorize any Processor to use any dBB Application, in whole
or in part, or the dBB System or any updates, modifications,
enhancements or derivative works thereto, in whole or in part,
for the purpose of processing Accounts, performing
Account-Related Processing, providing Check Services or
performing Check-Related Processing;
(iii) grant to any Processor any right or license to: (A) use any
dBB Application, in whole or in part, to process Accounts of,
or perform Account-Related Processing for, third Persons; or
(B) use the dBB System or any updates, modifications,
enhancements or derivative works thereto, in whole or in part,
to create any dBB Application to process Accounts of, or
perform Account-Related Processing for, third Persons; (C) use
any dBB Application, in whole or in part, to provide Check
Services to, or perform Check-Related Processing for, third
Persons; or (D) use the dBB System or any updates,
modifications, enhancements or derivative works thereto, in
whole or in part, to create any dBB Application to provide
Check Services to, or perform Check-Related Processing for,
third Persons;
(iv) use any dBB Application in whole or in part, to process
Accounts of, or perform Account-Related Processing for, any
third Person, or use the dBB System or any updates,
modifications, enhancements or derivative works thereto, in
whole or in part, to process Accounts of, or perform
Account-Related Processing for, any third Person; or
(v) use any dBB Application in whole or in part, to provide Check
Services to, or perform Check-Related Processing for, any
third Person, or use the dBB System or any updates,
modifications, enhancements or derivative works thereto, in
whole or in part, to provide Check Services to, or perform
Check-Related Processing for, any third Person.
For purposes of clarification, nothing contained in this Section 4(d)
shall prevent Delos or any Affiliate of Delos from (X) using the dBB
System or any updates, modifications, enhancements or derivative works
thereto, in whole or in part, or any dBB Application, in whole or in
part as a processor other than for processing Accounts, performing
Account-Related Processing, providing Check Services or performing
Check-Related Processing, or (Y) granting any right or license to any
Person with respect to the dBB System or any updates, modifications,
enhancements or derivative works thereto, in whole or in part, or any
dBB Application, in whole or in part, in any manner that is not
processing Accounts, performing Account-Related Processing, providing
Check Services or performing Check-Related Processing, including by way
of example and without limitation, performing processing or granting
licenses with respect to non-Account transactions or non-Check Service
transactions in: (vi) business-to-business e-commerce; (vii) electronic
benefits
8
payments; (viii) closed loop payment systems (including the use of
smart cards only with regard to such closed loop payment systems); and
(ix) the telecommunication, banking, mutual fund, financial services,
health care and insurance industries.
(e) PaySys Customers. For a period of forty-eight (48) months following the
Effective Date, neither Delos nor any Affiliate of Delos shall solicit
or grant to any PaySys Customer any right or license to use the dBB
System or any updates, modifications, enhancements or derivative works
thereto, in whole or in part, or any dBB Application, in whole or in
part, to (i) process such PaySys Customer's own Accounts for its own
benefit, (ii) perform Account-Related Processing with respect to
Accounts owned by such PaySys Customer for its own benefit, (iii)
provide Check Services with respect to checks issued by such PaySys
Customer, or (iv) perform Check-Related Processing with respect to
checks issued by such PaySys Customer for its own benefit; provided
that nothing in this Agreement shall preclude Delos from:
(A) granting any right or license to any PaySys
Customer listed on the attached Schedule
4(e) the use of any dBB Application as a
commercial card system to process such
PaySys Customer's own Accounts; or
(B) granting any right or license to, or
otherwise dealing with, any PaySys Customer
other than as set forth in this Section
4(e).
(f) For a period of thirty (30) months following the Effective Date,
neither Delos nor any Affiliate of Delos shall solicit or grant to any
PaySys Affiliate Customer any right or license to use the dBB System or
any updates, modifications, enhancements or derivative works thereto,
in whole or in part, or any dBB Application, in whole or in part, to
(i) process such PaySys Affiliate Customer's own Accounts for its own
benefit, (ii) perform Account-Related Processing with respect to
Accounts owned by such PaySys Affiliate Customer for its own benefit,
(iii) provide Check Services with respect to checks issued by such
PaySys Affiliate Customer, or (iv) perform Check-Related Processing
with respect to checks issued by such PaySys Affiliate Customer for its
own benefit, or (v) provide ▇▇▇▇ Payment Services; provided that
nothing in this Agreement shall preclude Delos from:
(A) granting any right or license to any PaySys
Affiliate Customer listed on the attached
Schedule 4(e) the use of any dBB Application
as a commercial card system to process such
PaySys Affiliate Customer's own Accounts; or
(B) granting any right or license to, or
otherwise dealing with, any PaySys Affiliate
Customer other than as set forth in this
Section 4(f).
5. PROPRIETARY RIGHTS LEGENDS. PaySys shall reproduce on all copies of the
dBB Platform and derivative works thereto that PaySys creates or has
created, the proprietary rights legends set forth on Schedule 5 in the
manner set forth therein. In addition, PaySys shall replace or
otherwise modify such legends as reasonably requested by Delos on all
future copies of the dBB Platform and derivative works thereto that
PaySys creates or has
9
created. Subject to the foregoing, PaySys and its Affiliates may modify
the documentation and screen displays of the dBB Platform, any portion
thereof and any derivative works thereto to conform them to the product
branding, display and documentation standards of PaySys and its
Affiliates, including to identify PaySys and/or its Affiliates as the
service and software provider of the dBB Platform and derivative works
thereto.
6. PROPRIETARY RIGHTS.
(a) By Delos. As between Delos and PaySys and its Affiliates, subject to
the licenses granted to Delos pursuant to that certain Trade Secret
License Agreement dated as of April 27, 2001, between Delos and PaySys,
Delos shall own all right, title and interest, including any
Intellectual Property rights, in and to the dBB System.
(b) By PaySys and its Affiliates. Subject to Sections 2(a)(ii), 2(a)(iii)
and 6(a), PaySys shall own all right, title and interest, including
Intellectual Property rights, in and to all updates, modifications,
enhancements or derivative works that PaySys or its Affiliates create
or have created to, or with the use of, the dBB System.
(c) Cooperation. Each party shall perform any acts that may be deemed
necessary or desirable by the other party to more fully evidence the
foregoing Sections 6(a) and 6(b).
7. TAXES. The license granted herein is exclusive of any federal, state,
or local excise, sales, use and similar taxes assessed or imposed with
respect to the transactions set forth herein. PaySys shall be
responsible for all such taxes assessed or levied upon Delos with
respect to such transactions. PaySys shall pay any such amounts upon
request of Delos accompanied by evidence of imposition of such taxes.
Notwithstanding the foregoing, in no event shall PaySys be liable for
taxes relating to Delos' income. PaySys shall not be responsible for
payment of any interest or penalties in connection with the payment of
any such taxes not caused by PaySys, and PaySys may protest the
validity or amount of any such tax.
8. LIMITED REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.
(a) By Each Party. Each party represents and warrants to the other as
follows:
(i) Organization, Corporate Power, Etc. Each party: (A) is duly
organized, validly existing and in good standing under the
laws of the state in which it is incorporated; (B) has the
requisite corporate or other power and authority to carry on
its business as it is now being conducted; and (C) is duly
licensed or qualified to do business in each jurisdiction in
which the nature of the business conducted by it makes such
licensing or qualification necessary.
(ii) Authority of Parties. Each party has full power and authority
to execute, deliver and perform this Agreement. The execution,
delivery and performance of this Agreement has been duly
authorized and approved by all necessary corporate or other
authorities and does not require any further authorization or
consent.
10
(iii) No Litigation. To each party's respective knowledge, there are
no lawsuits, claims, suits, proceedings or investigations
pending or threatened against it that questions the legality
or propriety of the transactions contemplated by this
Agreement.
(iv) Consents and Approvals. No consent, approval, authorization,
action or order of, or declaration, filing or registration
with, or notice to, any court, administrative agency,
governmental body or other third party is required to be made
or obtained by a party in connection with the execution and
delivery of this Agreement, the consummation of the
transactions contemplated by it, or the performance of its
obligations under it.
(v) Noncontravention. The execution, delivery and performance by
each party of this Agreement will not conflict with,
constitute a breach of, or default under, or violate any
provision of any agreement, indenture, note, or other
instrument to which such party is a party or by which such
party is or may be bound or to which any of such party's
property or assets is subject, or any statute, law, rule,
regulation, ruling, judgment, injunction, order or decree
applicable to such party or to any property or assets of such
party.
(b) By Delos. Delos represents and warrants to PaySys that: (i) no viruses
or similar data-damaging elements generally known in the software
industry or disabling devices shall be present in the dBB Platform at
the time it is delivered in accordance with Section 3; and (ii) the dBB
System does not include any Intellectual Property rights, Software, or
other rights of Accenture.
(c) DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, NEITHER
PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, NATURE OR
DESCRIPTION, EITHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE
dBB SYSTEM OR ANY OTHER GOODS OR SERVICES PROVIDED HEREUNDER, INCLUDING
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
AND EACH PARTY HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, EACH PARTY HEREBY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES THAT THE dBB PLATFORM WILL OPERATE
UNINTERRUPTED OR ERROR FREE.
9. LIABILITY LIMITATIONS; DISCLAIMER OF DAMAGES.
(a) Liability Limitation. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, EXCEPT FOR LIABILITY ARISING PURSUANT TO SECTIONS 10, 11 AND
13, THE CUMULATIVE AGGREGATE LIABILITY OF A PARTY AND ITS RESPECTIVE
AFFILIATES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE
LIMITED TO THE LESSER OF: (i) FIVE MILLION DOLLARS ($5,000,000); OR
(ii) THE ACTUAL DIRECT DAMAGES SUFFERED BY THE OTHER PARTY AND ITS
AFFILIATES.
11
(b) Disclaimer of Damages. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO
THE CONTRARY, EXCEPT FOR LIABILITY ARISING PURSUANT TO A BREACH OF A
PARTY'S OBLIGATIONS SET FORTH IN SECTION 13, OR DAMAGES AWARDED TO A
THIRD PERSON PURSUANT TO INDEMNIFICATION OBLIGATIONS SET FORTH IN
SECTIONS 10 AND 11, IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES OR
ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT
LIABILITY OR OTHER LEGAL THEORY FOR ANY LOST PROFITS, LOSS OF DATA,
EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES,
REGARDLESS OF WHETHER EITHER PARTY OR ANY OTHER SUCH PERSON HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) Allocation of Risk. THE FOREGOING REPRESENTS AN EXPRESS ALLOCATION OF
RISK. EACH PARTY, ON BEHALF OF ITSELF AND ITS AFFILIATES ACKNOWLEDGES
THAT EACH PARTY HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE
DISCLAIMERS SET FORTH IN THIS AGREEMENT AND THAT THE SAME FORM AN
ESSENTIAL BASIS OF THE BENEFIT OF THE BARGAIN BETWEEN THE PARTIES.
10. INDEMNIFICATION BY DELOS. Delos shall defend, indemnify and hold
harmless PaySys, its Affiliates and their respective directors,
officers, employees, agents and contractors (each a "PaySys
Indemnitee") from and against all third Person claims, liabilities,
losses or damages (including reasonable attorneys fees, expert witness
fees, expenses and costs of settlement) resulting from or arising out
of:
(i) any third Person claim or suit asserted or brought within five
(5) years following the Effective Date against any PaySys
Indemnitee alleging that the dBB System or any portion thereof
as delivered by Delos to PaySys infringes, misappropriates or
violates any copyright or trade secret of any third Person;
(ii) any third Person claim or suit known to Delos or any Delos
Affiliate as of the Effective Date and brought against any
PaySys Indemnitee alleging that the dBB System or any portion
thereof as delivered by Delos to PaySys infringes,
misappropriates or violates any copyright or trade secret of
any third Person; and
(iii) any third Person claim or suit asserted or brought within five
(5) years following the Effective Date against any PaySys
Indemnitee arising out of an Encumbrance on the dBB System or
any portion thereof which is existing as of the Effective
Date.
(b) In addition to the obligations set forth in Section 10(a), if a final
injunction is obtained against PaySys' or an Affiliate of PaySys' use
of the dBB System or any portion thereof by reason of a claim
12
set forth in Sections 10(a)(i) or 10(a)(ii), or if in Delos' reasonable
opinion the dBB System or any portion thereof is likely to become the
subject to a claim as set forth in Sections 10(a)(i) or 10(a)(ii),
Delos shall, at its sole option and expense: (i) procure for PaySys
and/or the Affiliate of PaySys, as applicable, the right to continue
using the same in the manner permitted hereunder; (ii) replace or
modify the same so that it no longer becomes subject to any such claim;
or if neither of the foregoing are available (as reasonably determined
by Delos) without the expenditure of more than five hundred thousand
dollars ($500,000), terminate Section 2 only to the extent of the
infringement, misappropriation or violation, upon ninety (90) days
prior notice to PaySys and pay PaySys five hundred thousand dollars
($500,000) within ninety (90) days after such notification, provided,
that Delos' liability pursuant to this Section 10(b)(iii) shall not
exceed five hundred thousand dollars ($500,000).
11. INDEMNIFICATION BY PAYSYS.
(a) PaySys shall defend, indemnify and hold harmless Delos, its Affiliates
and their respective directors, officers, employees, agents and
contractors (each a "Delos Indemnitee") from and against all third
Person claims, liabilities, losses or damages (including reasonable
attorneys fees, expert witness fees, expenses and costs of settlement)
resulting from or arising out of:
(i) any third Person claim or suit asserted or brought within five
(5) years following the Effective Date against any Delos
Indemnitee alleging that any updates, modifications,
enhancements, derivative works or portions thereof that PaySys
or its Affiliates create or have created to the dBB System
infringe, misappropriate or violate any copyright or trade
secret of any third Person;
(ii) any third Person claim or suit asserted or brought within five
(5) years following the Effective Date against any Delos
Indemnitee with respect to any use by PaySys of any dBB
Application or portion thereof created by or on behalf of
PaySys; and
(iii) any third Person claim or suit asserted or brought within five
(5) years following the Effective Date against any Delos
Indemnitee should PaySys continue to use the dBB System or any
portion thereof for which its license has terminated in
accordance with Section 10(b)(iii).
(iv) any third Person claim or suit asserted or brought against any
Delos Indemnitee should PaySys or any of its Affiliates
continue to use the dBB System or any portion thereof pursuant
to Section 14(c)(iii) after this Agreement is terminated by
Delos in accordance with Section 14(b) with regard to the
rights of PaySys' and its Affiliates' sublicensees who are not
PaySys or PaySys Affiliates who continue to receive support
from PaySys after such termination.
(b) For the avoidance of doubt, subject to Sections 11(a)(iii) and
11(a)(iv), neither PaySys nor any of its Affiliates shall have any
obligation or liability hereunder with respect to claims or suits
alleging that the dBB System or any portion thereof infringes,
misappropriates or violates any Intellectual Property of any other
Person.
13
12. INDEMNIFICATION PROCEDURES.
(a) The obligations of Delos under Section 10, or of PaySys and under
Section 11 (in each instance the "Indemnitor"), to defend, indemnify
and hold harmless PaySys Indemnitees and Delos Indemnitees, as
applicable (the "Indemnitee") shall be subject to the following:
(i) the Indemnitee shall provide the Indemnitor with prompt notice
of the claim or suit giving rise to such obligation; provided,
however, that any failure or delay in giving such notice shall
only relieve the Indemnitor of its obligations under Section
10 or Section 11, as applicable, to the extent it reasonably
demonstrates that its defense or settlement of such claim or
suit was adversely affected thereby;
(ii) subject to Section 12(b), the Indemnitor shall have sole
control of the defense and of all negotiations for settlement
of such claim or suit, it being understood that the Indemnitor
shall not, without the Indemnitee's prior written consent
(which consent shall not be unreasonably withheld or delayed),
compromise or settle such claim or suit if: (A) such
compromise or settlement would impose an injunction or other
equitable relief upon the Indemnitee; or (B) such compromise
or settlement does not include the third Person's release of
the Indemnitee from all liability relating to such claim or
suit for which the Indemnitee is entitled to be indemnified;
and
(iii) the Indemnitee shall cooperate with the Indemnitor in the
defense or settlement of any such claim or suit, provided that
the Indemnitee shall be reimbursed for all reasonable
out-of-pocket expenses incurred in providing any such
cooperation.
(b) Notwithstanding Section 12(a)(ii), a PaySys Indemnitee may elect to
assume the defense of any such claim or suit at its own expense;
provided that in such case, Delos shall: (i) cooperate with the PaySys
Indemnitee in the defense and settlement of any such claim or suit;
(ii) reimburse such PaySys Indemnitee for fifty percent (50%) of the
costs and expenses of such PaySys Indemnitee relating to the assumption
of such defense; (iii) pay any damages provisionally or finally awarded
with respect to such claim or suit; and (iv) subject to its written
consent (which consent shall not be unreasonably withheld or delayed),
pay any settlement with respect to such claim or suit.
(c) Except as set forth in Section 12(b), if the Indemnitor does not assume
full control over the defense of a claim or suit in accordance with
Section 12(a)(ii), then the Indemnitor may participate in such defense,
at its sole cost and expense, and the Indemnitee may defend or settle
the claim or suit in such manner as it may deem appropriate, at the
sole cost and expense of the Indemnitor.
13. CONFIDENTIALITY.
(a) Confidential Information. For purposes of this Agreement, "Confidential
Information" shall mean all technical, business, and other information
and materials of PaySys disclosed to or obtained by Delos, or of Delos
disclosed to or obtained by PaySys, in connection with this Agreement
whether prior to, on or after the Effective Date, that derives economic
value, actual or potential, from not being generally known to others,
14
including, any technical or non-technical data, designs, methods,
techniques, drawings, processes, products, inventions, improvements,
methods or plans of operation, research and development, business plans
and financial information of such party. Without limiting the
generality of the foregoing, non-public information concerning the dBB
System (including all documentation and specifications therefor) shall
be deemed Confidential Information of Delos and among other things: (i)
Confidential Information shall include confidential or proprietary
information and materials of third parties and their respective
Affiliates in possession of one of the parties to this Agreement and
needed to perform obligations hereunder; and (ii) this Agreement,
financial information and confidential business plans of either party
shall in any event be considered Confidential Information of the
parties or their licensors, respectively.
(b) Obligations. Except as expressly authorized herein or by prior written
consent of the disclosing party, which consent may be withheld in the
disclosing party's sole discretion, the receiving party shall:
(i) limit access to any Confidential Information received by it to
its employees, agents, representatives, and consultants who
have a need-to-know in connection with this Agreement and the
obligations of the parties hereunder, and who are under
written or ethical obligations to maintain the confidentiality
of the receiving party's Confidential Information;
(ii) advise its employees, agents, representatives and consultants
having access to the Confidential Information of the
proprietary nature thereof and of the obligations set forth in
this Agreement and that such Confidential Information is to be
treated as the Confidential Information of the receiving
party;
(iii) safeguard all Confidential Information received by it using a
reasonable degree of care, but not less than that degree of
care used by the receiving party in safeguarding its own
similar information or material;
(iv) not disclose any Confidential Information received by it to
third Persons; and
(v) use the Confidential Information of the other party only for
the performance of such party's obligations and exercise of
such party's rights under this Agreement.
A receiving party shall be responsible for any unauthorized use or
disclosure of any Confidential Information received by the receiving
party's employees, agents, representatives and consultants.
(c) Exceptions to Confidentiality. Notwithstanding the foregoing Section
13(b), the parties' obligations respecting confidentiality and
limitation on use under Section 13(b) shall not apply to any particular
information or materials that the other party can demonstrate:
(i) was, at the time of disclosure to it, in the public domain;
(ii) after disclosure to it, is published or otherwise becomes part
of the public domain through no fault of the receiving party;
15
(iii) was in the lawful possession of the receiving party at the
time of disclosure to it without being subject to an
obligation of confidentiality;
(iv) was received after disclosure to it from a third Person who
had a lawful right to disclose such information or materials
to it;
(v) was independently developed by the receiving party without
reference to or reliance upon Confidential Information
received by the receiving party;
(vi) was required to be disclosed to any regulatory body having
jurisdiction over the parties or any of their respective
Affiliates or their respective clients, provided that such
party shall use reasonable efforts to provide the other party
with prior notice thereof so that the other party may seek a
protective order or other appropriate remedy to prevent such
disclosure, and if such protective order or other remedy is
not obtained prior to the time such disclosure is required,
the party required to make the disclosure shall only disclose
that portion of such Confidential Information which it is
legally required to disclose; or
(vii) that disclosure is necessary by reason of legal, accounting or
regulatory requirements beyond the reasonable control of the
receiving party, provided that such party shall use all
reasonable efforts to provide the other party with prior
notice thereof so that the other party may seek a protective
order or other appropriate remedy to prevent such disclosure,
and if such protective order or other remedy is not obtained
prior to the time such disclosure is required, the party
required to make the disclosure will only disclose that
portion of such Confidential Information which it is legally
required to disclose.
(d) The restrictions contained in this Section 13 shall not apply to any
Delos information that does not constitute a trade secret under
applicable law two years after the expiration or termination of this
Agreement for any reason.
14. DEFAULT AND TERMINATION.
(a) Except as set forth in Section 14(b), if Delos, PaySys or any PaySys
Affiliate fails to remedy within thirty (30) days after notice thereof
a failure to perform any obligation imposed pursuant to this Agreement
or comply with any restriction or other provision contained in this
Agreement, the notifying party may resolve the same as set forth in
Section 15.
(b) If a party shall fail to pay when due any amounts due pursuant to this
Agreement after one hundred eighty (180) days after notice thereof by
the other party, such other party may terminate this Agreement after
such one hundred eighty (180) day period unless such amounts are paid
within such one hundred eighty (180) day period.
(c) If Delos terminates this Agreement pursuant to Section 14(b):
(i) the rights and licenses granted herein shall terminate;
16
(ii) subject to Section 14(c)(iii) PaySys and its Affiliates shall
promptly delete all copies of the dBB Platform, including all
executable versions used in dBB Applications, from all
computers and storage devices and at PaySys' option, either
immediately return to Delos all copies of the dBB Platform or
destroy all copies of the dBB Platform and certify to Delos
the compliance with the foregoing;
(iii) notwithstanding anything to the contrary set forth in Section
14(c), PaySys and its Affiliates may retain copies of the dBB
Platform solely for the purpose, and solely to the extent
necessary for, continued support of PaySys' and its
Affiliates' sublicensees who are not PaySys or PaySys
Affiliates; and
(iv) the following provisions shall survive the termination of this
Agreement by Delos pursuant to Section 14(b) for any reason:
Sections 5, 6, 7, 8(c), 9, 10, 11, 12, 13, 14(c), 15, 16(a),
18 and 19.
(d) If PaySys terminates this Agreement pursuant to Section 14(b):
(i) the rights and licenses granted herein shall continue;
(ii) without further action on either party, Section 2(a) shall be
revised to read in its entirety as set forth on Schedule
14(d)(ii); and
(iii) the following provisions shall survive the termination of this
Agreement by PaySys pursuant to Section 14(b) for any reason:
Sections 2, 3, 4, 5, 6, 7, 8(c), 9, 10, 11, 12, 13, 14(d), 15,
16(b), 17, 18 and 19.
15. DISPUTE RESOLUTION.
(a) Subject to Section 15(b), any and all Disputes shall be resolved as
provided in Schedule 15(a).
(b) Notwithstanding anything to the contrary set forth herein, no party
shall be required to submit any dispute or disagreement regarding the
interpretation of any provision of this Agreement, the performance by a
party of such party's obligations under this Agreement or a default
hereunder to the mechanisms set forth in Section 15(a), if such
submission seeks solely equitable relief from irreparable harm.
16. COVENANT NOT TO SOLICIT EMPLOYEES.
(a) Without the consent of Delos, for a period of one (1) year following
the Effective Date, PaySys shall not induce or persuade any employee of
Delos or any of its Affiliates to terminate such employment
relationship to enter into any employment, independent contractor or
other business relationship with PaySys or any of its Affiliates. The
covenant contained in this Section 16(a) shall not apply to
solicitations of a general nature or if any such employee approaches
PaySys with respect to any of the foregoing opportunities.
17
(b) Without the consent of PaySys, for a period of one (1) year following
the Effective Date, Delos shall not induce or persuade any employee of
PaySys or any of its Affiliates to terminate such employment
relationship to enter into any employment, independent contractor or
other business relationship with Delos or any of its Affiliates. The
covenant contained in this Section 16(b) shall not apply to
solicitations of a general nature or if any such employee approaches
Delos with respect to any of the foregoing opportunities.
17. RIGHTS IN BANKRUPTCY. Delos agrees that if Delos as a
debtor-in-possession or a trustee in bankruptcy rejects this Agreement,
PaySys and any of its Affiliates may elect to retain their respective
rights under this Agreement as provided in Section 365(n) of the
Bankruptcy Code. To the extent permitted by Section 365(n) of the
Bankruptcy Code, upon request of PaySys and/or any of its Affiliates to
Delos or the trustee in bankruptcy, Delos or such trustee shall allow
PaySys and/or any of PaySys' Affiliates, as applicable, to exercise
their respective rights under this Agreement and shall not interfere
with the rights of PaySys or any of its Affiliates as provided in this
Agreement, provided that PaySys and its Affiliates, as applicable,
continue to comply with the provisions of this Agreement.
18. SOURCE CODE ESCROW AGREEMENT.
(a) Delos shall keep on deposit with DSI Technology Escrow Services, Inc.
(the "Escrow Agent") the source code and executable code for the dBB
Software, including: (i) the source code and executable code for all
modifications, enhancements, upgrades, and add-ons thereto and any
derivative works thereof relating to any dBB Liabilities [existing as
of the Effective Date]; and (ii) all materials, diagrams, drawings,
manuals and documents required for ongoing support of the foregoing
(collectively, the "Escrow Materials"). The Escrow Materials shall be
on deposit with the Escrow Agent pursuant to the terms of the escrow
agreement between Delos, PaySys and the Escrow Agent (the "Escrow
Agreement"), to be entered into within 30 days after the Effective
Date. The Escrow Agreement shall be substantially in the form of
Schedule 18(a) attached hereto. Delos shall update the Escrow Materials
as any changes to the Escrow Materials relate to the dBB Liabilities
each year on the anniversary of the initial deposit of the Escrow
Materials.
(b) The Escrow Agreement shall provide that the Escrow Agent shall release
the Escrow Materials to PaySys and its Affiliates if: (i) any
proceedings are instituted by or against Delos seeking to adjudicate
Delos as bankrupt or insolvent, or seeking liquidation, winding-up,
arrangement, adjustment, relief or compensation of its debts under
bankruptcy law, or seeking the entry of an order for relief or the
appointment of a receiver trustee or other similar official for it or
for its property and such proceedings are not dismissed within sixty
(60) days after they are instituted; (ii) PaySys terminates this
Agreement in accordance with Section 14(b); or (iii) Delos fails to
meet the obligations regarding the dBB Liabilities assumed by Delos in
accordance with the Contribution Agreement, and fails to cure such
default within 60 days after receiving notice of such default from
PaySys.
18
(c) The Escrow Agreement shall terminate upon the later of: (i) the
termination of all dBB Liabilities; or (ii) 4 years after the Effective
Date.
(d) Notwithstanding anything in this Agreement or the Escrow Agreement to
the contrary and subject to the terms and conditions of this Agreement,
Delos hereby grants to: (i) PaySys and its Affiliates; and (ii) the
Transferred Operations and any successor entity, a non-exclusive,
nontransferable (except as otherwise provided in this Agreement),
worldwide, royalty-free and fully paid up right and license to use,
execute, sublicense, copy, modify and have modified the Escrow
Materials solely to the extent necessary to discharge any obligations
relating to the dBB Liabilities, which right and license such parties
may exercise at any time after the Escrow Materials have been released
by the Escrow Agent.
19. MISCELLANEOUS.
(a) Assignment; Transfer. Except as provided herein, neither party may
assign or transfer this Agreement and any such attempted assignment or
transfer shall be void. Either party may: (i) transfer this Agreement
in connection with any merger or consolidation of such party with
another Person, provided that such party furnishes the other party with
notice of such transfer within ten (10) business days after the
announcement of the same; or (ii) in connection with the sale of
substantially all of the party's assets (including the rights of a
party under this Agreement), provided that (A) the assignee thereof
shall assume all of such party's obligations hereunder, and (B) the
party furnishes the other party with notice of the closing of such
assignment and assumption within ten (10) business days after the same.
Subject to the foregoing, all provisions contained in this Agreement
shall extend to and be binding upon the parties hereto and their
respective permitted successors and permitted assigns.
(b) Waiver. No failure or delay on the part of any party to exercise any
right or remedy hereunder shall operate as a waiver thereof, nor shall
a single or partial exercise by any party of any right or remedy
preclude any further exercise thereof or the exercise of any other
right or remedy. No express waiver or assent by a party to any breach
of or default in a term or condition of this Agreement shall constitute
a waiver of or assent to any other breach of or default in the same or
any other term or condition hereof.
(c) Independent Contractors. The Parties acknowledge that the relationship
between Delos and PaySys is that of licensor and licensee and nothing
contained in this Agreement shall be construed to place either party in
the relationship of principal and agent, master and servant, partners
or joint venturers with the other party or its Affiliates. Neither
party shall have, expressly or by implication, or represent itself as
having any authority to make contracts or enter into any agreement in
the name of the other parties, or to obligate or bind the other party
in any manner whatsoever.
(d) Entire Agreement. This Agreement and its Schedules supersedes all prior
discussions, understandings and agreements between the parties with
respect to the matters contained herein, and contains the sole and
entire agreement between the parties with respect to the
19
transactions contemplated herein. This Agreement may not be amended or
modified except by another agreement in writing executed by the parties
hereto.
(e) Governing Law. The validity and effect of this Agreement shall be
governed by the laws of the State of Florida, without regard to its
rules regarding conflicts of law.
(f) Force Majeure. No party shall be liable for any default or delay in the
performance of its obligations (other than payment obligations, if any)
under this Agreement if and to the extent such default or delay is
caused, directly or indirectly, by: (i) fire, flood, elements of nature
or other acts of God; (ii) any outbreak or escalation of hostilities,
war, riots or civil disorders in any country; (iii) any act or omission
of the other party or any governmental authority; or (iv) any labor
disputes (whether or not the employees' demands are reasonable or
within the party's power to satisfy). In any such event, the
non-performing party shall be excused from any further performance or
observance of the obligation so affected only for as long as such
circumstances prevail and such party continues to use commercially
reasonable efforts to recommence performance or observance as soon as
practicable.
(g) No Third-Party Beneficiaries. Nothing contained in this Agreement is
intended to confer upon any party (other than the parties hereto and
Affiliates of either party) any rights, benefits or remedies of any
kind or character whatsoever, and no party shall be deemed a
third-party beneficiary under or by reason of this Agreement.
(h) Consent. If either party requires the consent or approval of the other
party for the taking of, or omitting to take, any action under this
Agreement, except as expressly set forth in this Agreement, such
consent or approval shall not be unreasonably withheld or delayed.
(i) Severability. If any provision of this Agreement or the application of
any such provision to any party or circumstance, shall be declared
judicially to be invalid, unenforceable or void, such decision shall
not have the effect of invalidating or voiding the remainder of this
Agreement, it being the intent and agreement of the parties that this
Agreement shall be deemed amended by modifying such provision to the
extent necessary to render it valid, legal and enforceable while
preserving its intent or, if such modification is not possible, by
substituting therefor another provision that is valid, legal and
enforceable so as to materially effectuate the parties' intent.
(j) Notices. Any notices, requests, demands, certifications and other
communications required or permitted under this Agreement shall be in
writing and shall be sufficiently given if delivered in person or if
mailed by registered or certified mail, postage prepaid, to the parties
at the addresses specified in this Section 19(j), or if transmitted by
facsimile to the fax number specified below and confirmed by the
recipient by facsimile. A party may change the address or fax number to
which notices are to be sent by giving notice to the other party in the
manner provided herein. Notices sent by mail shall be deemed delivered
when received. Notices transmitted by confirmed facsimile shall be
deemed delivered on the date of transmittal.
20
If to PaySys: If to Delos:
First Data Corporation Delos Payment Systems, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Attn: President
Attn: General Counsel Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: With a copy to:
Sidley & Austin ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(k) Export. Neither PaySys nor its Affiliates shall export or re-export the
dBB System without appropriate United States and/or foreign government
licenses, and PaySys and its Affiliates shall comply with all
applicable export and import laws and regulations with respect thereto.
(l) Headings. Headings as to the contents of particular sections are
inserted only for convenience and shall not be construed a part of this
Agreement or as a limitation on the scope of any of the terms or
provisions of this Agreement.
(m) No Interpretation Against Drafter. Both parties have participated
substantially in the negotiation and drafting of this Agreement and
each party hereby disclaims any defense or assertion in any litigation
or arbitration that any ambiguity herein should be construed against
the draftsman.
(n) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
21
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be
executed by their duly authorized officers as of the Effective Date.
DELOS PAYMENT SYSTEMS, INC. PAYSYS INTERNATIONAL, INC.
By: By:
---------------------------------- ----------------------------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
------------------------------- -------------------------------
22
NOTE
SCHEDULES TO THIS EXHIBIT ARE NOT FILED HEREWITH. THE REGISTRANT AGREES TO
PROVIDE THE SCHEDULES SUPPLEMENTALLY UPON REQUEST OF THE SECURITIES AND
EXCHANGE COMMISSION.
1