1
Exhibit 10.22
OPERATING AGREEMENT
BETWEEN
FIRST USA BANK
AND
CYBERCASH INC.
DATED OCTOBER 15, 1998
The asterisk (*), wherever used in this document, refers to confidential
portions of this agreement that have been omitted in reliance on Rule 24b-2 of
the Securities Exchange Act of 1934. The confidential portions
have been submitted separately to the Securities and Exchange Commission.
2
TABLE OF CONTENTS
ARTICLE I
DEFINED TERMS..........................................................................1
Section 1.1 Defined Terms.........................................................1
Section 1.2 Interpretation........................................................4
ARTICLE II
LICENSES...............................................................................5
Section 2.1 First USAWallet.......................................................5
Section 2.2 Cybercash Ownership...................................................5
Section 2.3 Cybercash Hardware and Software.......................................5
Section 2.4 Cybercash License.....................................................5
Section 2.5 First USA License.....................................................6
ARTICLE III
ENGAGEMENT AND SERVICES................................................................6
Section 3.1 Engagement............................................................6
Section 3.2 Operations............................................................6
Section 3.3 Installation..........................................................6
Section 3.4 Maintenance Obligations...............................................7
Section 3.5 Modifications.........................................................7
Section 3.6 Performance Warranty..................................................7
Section 3.7 Inspections...........................................................8
Section 3.8 Quality Assurance and Reporting.......................................8
Section 3.9 Data Collection.......................................................8
Section 3.10 Disaster Recovery.....................................................8
Section 3.11 Technical Support and Personnel.......................................8
Section 3.12 Insurance.............................................................9
Section 3.13 Licenses.............................................................10
Section 3.14 Subcontracting Rights................................................10
Section 3.15 Cybercash Indemnification............................................10
Section 3.16 Source Code Escrow...................................................10
Section 3.17 Export Controls......................................................10
(i)
3
ARTICLE IV
MARKETING.............................................................................11
Section 4.1 * ...................................................................11
Section 4.2 Additional Internet Merchants........................................11
Section 4.3 Exclusivity..........................................................11
Section 4.4 Equal Treatment......................................................11
ARTICLE V
PAYMENTS..............................................................................11
Section 5.1 Payments ............................................................11
Section 5.2 * Compensation Fee Payments .........................................11
Section 5.3 * License Fee .......................................................11
Section 5.4 * Operations Fee ....................................................11
Section 5.5 * ...................................................................11
Section 5.6 First USA Wallet Use Royalty ........................................12
Section 5.7 Internet Merchants ..................................................12
Section 5.8 Additional Fees .....................................................12
Section 5.9 Payment Obligations..................................................12
Section 5.10 Taxes................................................................12
Section 5.11 Expenses.............................................................12
Section 5.12 Recordkeeping and Audits.............................................12
ARTICLE VI
CONFIDENTIAL INFORMATION, USAGE DATA AND PUBLICITY....................................12
Section 6.1 Protection...........................................................12
Section 6.2 Exclusions...........................................................13
Section 6.3 Return of or Destroy Confidential Information Upon Termination or
Expiration of Agreement...............................................................14
Section 6.4 Usage Data...........................................................14
Section 6.5 Public Statements Regarding Agreement................................14
Section 6.6 Equitable Relief.....................................................14
ARTICLE VII
CYBERCASH REPRESENTATIONS AND WARRANTIES..............................................14
Section 7.1 Organization and Qualification.......................................14
Section 7.2 Due Authorization....................................................14
Section 7.3 Conflicting Agreements...............................................15
(ii)
4
Section 7.4 Consents.............................................................15
Section 7.5 Litigation...........................................................15
Section 7.6 Laws and Regulations.................................................15
Section 7.7 Patents and Trademarks...............................................15
Section 7.8 Compliance...........................................................16
Section 7.9 "Year 2000" Warranty.................................................16
ARTICLE VIII
FIRST USA REPRESENTATIONS AND WARRANTIES..............................................16
Section 8.1 Organization and Qualification.......................................16
Section 8.2 Due Authorization....................................................17
Section 8.3 Conflicting Agreements...............................................17
ARTICLE IX
TERM AND TERMINATION..................................................................17
Section 9.1 Term.................................................................17
Section 9.2 Termination..........................................................17
Section 9.3 Transition...........................................................18
Section 9.4 Survival.............................................................18
ARTICLE X
DISPUTE RESOLUTION....................................................................18
Section 10.1 Disputes.............................................................18
Section 10.2 Xxxxx 0 Xxxxxxx Xxxxxx...............................................00
Section 10.3 Xxxxx 0 Xxxxxxx Xxxxxx...............................................00
Section 10.4 Submission of Dispute to Mediation...................................19
Section 10.5 Arbitration..........................................................19
Section 10.6 Recourse to Courts and Other Remedies................................21
Section 10.7 Attorneys' Fees......................................................21
Section 10.8 Affiliates...........................................................21
ARTICLE XI
INDEMNIFICATION PROCEDURES AND LIABILITY..............................................22
Section 11.1 Procedure for Indemnification........................................22
Section 11.2 Limitation of Liability..............................................23
(iii)
5
ARTICLE XII
GENERAL TERMS AND CONDITIONS..........................................................23
Section 12.1 Independent Contractor Relationship Among Parties....................23
Section 12.2 Force Majeure........................................................23
Section 12.3 Severability.........................................................24
Section 12.4 Assignment of Agreement..............................................25
Section 12.5 Obligation to Notify Upon Knowledge of Event or Circumstance
Giving Rise to Claim, Liability, Etc..................................................25
Section 12.6 Amendment and Modification of Agreement..............................25
Section 12.7 Choice of Law and Venue..............................................25
Section 12.8 Waiver of Compliance or Enforcement..................................25
Section 12.9 Notices..............................................................25
Section 12.10 Entire Agreement.....................................................26
Section 12.11 Headings.............................................................26
Section 12.12 Counterparts.........................................................26
Section 12.13 Further Assurances...................................................27
Exhibit A - Technical Standards & Specifications
Exhibit B - Graphics Interface
Exhibit C - *
Schedule 1
(iv)
6
OPERATING AGREEMENT
This OPERATING AGREEMENT (the "Agreement") is entered into as
of October 15, 1998, by and between First USA Bank, a Delaware banking
corporation ("First USA") and Cybercash Inc., a Delaware corporation
("Cybercash"). First USA and Cybercash may be referred to individually as a
"party" and collectively as "parties".
RECITALS
WHEREAS, Cybercash has developed the First USA Wallet, the
Agile Wallet Software, the Sample Software and the Client Software;
WHEREAS, First USA desires to license the First USA Wallet,
the Agile Wallet Software, the Sample Software and the Client Software from
Cybercash;
WHEREAS, Cybercash desires to license the First USA Wallet,
the Agile Wallet Software, the Sample Software and the Client Software to First
USA;
WHEREAS, First USA desires to provide the First USA Wallet to
*;
WHEREAS, Cybercash possesses the technical and operational
staff to install, operate and maintain the First USA Wallet;
WHEREAS, First USA desires to enter into a service
relationship whereby First USA authorizes Cybercash, as its agent, to provide
the technical and operational support to establish, install, operate and
maintain the First USA Wallet at First USA's direction;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, First USA and Cybercash agree as follows:
ARTICLE 1
DEFINED TERMS
Section 1.1 Defined Terms. Unless the context requires otherwise, the following
defined terms shall have the meaning set forth herein:
"Affiliate" means any Person that, directly or indirectly,
through one or more intermediaries, (i) owns or controls another Person, (ii) is
owned or controlled by another Person, or (iii) is under common control or
ownership with another Person. As used herein, "control" means the power to
direct the management or affairs of a Person, and "ownership" means the
7
direct or indirect beneficial ownership of more than 50% of the equity
securities of a Person, or, in the case of a Person which is not a corporation,
more than 50% of the voting and/or equity interest.
"Agile Wallet" means a system operated by or for Cybercash
that enables consumers to effect, and Internet Merchants to accept, payment
transactions.
"Agile Wallet Software" means a merchant connection kit that
when used to create an AW Connector permits Internet Merchants to communicate
with the Cybercash Server and complies with applicable interface requirements
established by Cybercash. The Agile Wallet Software includes Sample Software and
Client Software.
"Applicant Data" means the credit card application data the
End User must provide First USA in order to obtain a First USA credit card
account.
"AW Connector" means a software program that conforms to the
AW Documentation. An AW Connector may incorporate Sample Software, Derivative
Software and/or Client Software.
"AW Documentation" means Cybercash's guides and other
information intended for use in the installation, operation and development of
the First USA Wallet.
"Change Order" shall have the meaning given to it in Section
3.5.
"Client Software" means software programs to be used by the
First USA Internet Merchant to make available to End Users the First USA Wallet.
"Customization and Branding Fee" shall have the meaning given
to it in Section 5.2.
"Cybercash Server" shall have the meaning given to it in
Section 2.3.
"Derivative Software" means software that is derived from
Sample Software.
"Dollars" means the lawful currency of the United States of
America.
"End User" means the customer of a First USA Internet Merchant
who acquires a First USA Wallet.
"End User Agreement" means the agreement entered into between
First USA and End User as such agreement shall be provided by First USA.
2
8
"First Level Technical Support" means the technical and
service support the terms of which shall be agreed to by First USA and Cybercash
within thirty (30) days from the execution of this Agreement and as such terms
may be subsequently modified from time to time.
* means *.
"First USA Wallet" means a Partner branded Agile Wallet in
substantial conformity with the Graphics Interface and the Technical Standards
and Specifications.
"Force Majeure" shall have the meaning given to it in Section
12.2.
"Graphics Interface" means the graphics interface
substantially in the form of Exhibit B and as such graphics interface may be
subsequently modified from time to time upon the direction of First USA.
"Intellectual Property Rights" means intellectual property
and/or proprietary rights, including, without limitation, copyrights (including,
but not limited to, rights in audiovisual works); moral rights; patent rights
(including patent applications and disclosures); rights of priority; publicity
rights, trade secret rights; registered or otherwise protected trademarks, trade
names, and service marks, and protections from trademark dilution; to the extent
that any of the foregoing are recognized in any country or jurisdiction in the
world.
"Internet Merchant" means a merchant based on the Internet or
a hosting service acting on behalf of an Internet Merchant.
* means any of the * identified in Exhibit C attached hereto
as such list may be amended in writing from time to time.
* means *.
"Partner" means First USA or any one of First USA's partners
as may be determined by First USA from time to time.
"Person" means any individual, firm, corporation, business
trust, partnership, or other entity and shall include any successor (by merger
or otherwise) of such entity.
"Representative" means an Affiliate, agent, representative or
employee of Cybercash.
"Sample Software" means programs provided by Cybercash in
human readable form that may be used by First USA to create an AW Connector.
3
9
"Second Level Technical Support" means the technical and
service support the terms of which shall be agreed to by First USA and Cybercash
within thirty (30) days from the execution of this Agreement and as may be
subsequently modified from time to time.
"Technical Standards and Specifications" means those technical
standards and specifications substantially in the form of Exhibit A and as such
technical standards and specifications may be subsequently modified from time to
time upon the direction of First USA.
"Wallet Services" means the support services provided by
Cybercash and its Affiliates which is required to install, operate and maintain
the Agile Wallet, together with any modifications or enhancements to such
support services, as such modifications or enhancements may be developed by
Cybercash or its Affiliates from time to time.
Section 1.2 Interpretation. Words importing the singular number shall include
the plural number and vice versa and words importing the masculine gender shall
include all genders. The headings in this Agreement are inserted for convenience
of reference only and shall not limit or affect the interpretation of the
provisions hereof. References to Articles, Sections, Exhibits and Schedules are
to be construed as references to the Articles or Sections of, and Exhibits or
Schedules to, this Agreement, unless otherwise indicated, and terms such as
"hereof", herein", "hereunder" and other similar compounds of the word "here"
shall mean and refer to this entire Agreement rather than any particular part of
the same. The terms approval, discretion and other terms importing a decision by
a party shall mean in such party's sole discretion.
4
10
ARTICLE 2
LICENSES
Section 2.1 First USA Wallet. As soon as possible, and in any event within
fifteen (15) business days after the execution of this Agreement, Cybercash
shall provide First USA with the First USA Wallet developed, designed and
operated in substantial conformity with the Technical Standards and
Specifications and Graphics Interface as each may be modified from time to time.
Section 2.2 Cybercash Ownership. Cybercash shall own all hardware and software
provided herein, and shall own the Cybercash Server and all hardware and
software necessary to develop, operate and manage the First USA Wallet.
Section 2.3 Cybercash Hardware and Software. Cybercash shall provide all
computer hardware (e.g., servers, routers, network devices, switches and
associated hardware) and software in an amount necessary to meet the Technical
Standards and Specifications and the anticipated traffic demands, adequate power
supply (including generator back-up) and HVAC, adequate service contracts and
all necessary equipment racks, floor space, network cabling and power
distribution to support the Cybercash Server. Cybercash Server shall mean the
server system hardware, software and documentation developed, operated and
maintained by Cybercash to be used in the operation of the First USA Wallet, to
communicate with the AW Connector, to transmit data to the First USA Internet
Merchant, and the provision of any associated services. This includes the AW
Connector developed by Cybercash for the First USA Wallet to be installed by
Cybercash at the First USA Internet Merchant locations, and all server-side
software developed by Cybercash necessary to develop, operate, and manage the
First USA Wallet and associated services. The Cybercash Server shall include all
modifications, upgrades and enhancements to the server hardware, software or
documentation, and any additional technical enhancements developed and supplied
by Cybercash during the term of this Agreement for the purpose of installing the
First USA Wallet and delivering the services associated with the First USA
Wallet.
Section 2.4 Cybercash License. Cybercash hereby grants to First USA an
nonexclusive license to:
(a) copy or authorize others to copy the Agile Wallet Software
onto First USA's server or on servers operated for First USA and as directed by
First USA;
(b) modify or authorize others to modify the Sample Software;
(c) develop or authorize others to develop an AW Connector
using Sample Software, Derivative Software, Client Software or any combination
of the above for the sole purpose of communicating with the Cybercash Server;
5
11
(d) install or authorize others to install AW Connectors on
server(s) owned or controlled by, or otherwise directed by First USA, to permit
Internet Merchants to use the First USA Wallet.
Section 2.5 First USA License. (a) First USA grants to Cybercash for the term of
this Agreement, a non-exclusive, royalty-free, non-transferable, non-assignable,
fully-paid-up license to use, as directed by First USA and in First USA's sole
discretion, any Partner's trademarks, in connection with the First USA Wallet
(the "First USA Trademark").
(b) Cybercash shall use the First USA Trademark in accordance
with the standard policies and guidelines adopted by First USA, as such
standards, policies, guidelines may be amended by First USA from time to time.
First USA shall have the right to proscribe any use of the First USA Trademark
pursuant to the exercise of the foregoing license that is not in accordance with
any and all such standards, policies and/or guidelines.
(c) Cybercash shall not engage in any action associated with
the First USA Trademark that adversely affects the good name, goodwill, image or
reputation of First USA. All uses of the First USA Trademark hereunder shall
inure to the benefit of First USA.
ARTICLE 3
ENGAGEMENT AND SERVICES
Section 3.1 Engagement. First USA hereby engages Cybercash to perform the
services and provide the technology described in this Agreement for the term
specified in Section 9.1, and Cybercash hereby agrees to perform such services
and provide such technology for such term, on the terms and conditions specified
in this Agreement. Subject to the terms and conditions of this Agreement, First
USA may resell to Internet Merchants the right to access and use the First USA
Wallet. Nothing in this Agreement shall prohibit First USA from obtaining from
other Persons services that are the same as, similar to or competitive with, the
First USA Wallet.
Section 3.2 Operations. Cybercash shall assemble (whether by acquisition or
lease) and maintain suitable facilities and equipment for the efficient
operation of the First USA Wallet. Such facilities and equipment shall be kept
in good working order, normal wear and tear excepted. Cybercash shall be
responsible for all costs associated with the possession, use, operation and
maintenance of such facilities and equipment.
Section 3.3 Installation. Cybercash shall install the First USA Wallet and the
AW Connector at the First USA Internet Merchant site within thirty (30) days
after receipt of an instruction jointly delivered by First USA and the First USA
Internet Merchant to install the First USA Wallet and the AW Connector at the
First USA Internet Merchant site.
6
12
Section 3.4 Maintenance Obligations. Cybercash shall regularly maintain and
support the First USA Wallet in conformance with such standards as shall be
mutually acceptable to both First USA and Cybercash. Cybercash agrees to modify,
maintain, and service the First USA Wallet on terms and conditions or in a
manner which is no less favorable than the terms and conditions or manner it
offers or may offer to any other Person.
Section 3.5 Modifications.
(a) Cybercash shall, as soon as possible after the execution
of this Agreement, modify its existing Agile Wallet to create the First USA
Wallet to conform to Exhibit A.
(b) Cybercash shall make all reasonable changes to the First
USA Wallet upon receipt of a written change request ("Change Order") from First
USA. The Change Order shall consist of information with respect to the
specifications for the change and desired implementation date. Upon receipt of
such Change Order, Cybercash shall assess the impact of such Change Order,
considering the resources required to effectuate such Change Order and provide
First USA with an estimate as to the cost and time required to complete the
Change Order. First USA shall pay Cybercash for all reasonable costs incurred to
implement the Change Order.
(c) To the extent that the Agile Wallet is modified or
enhanced from time to time by Cybercash, Cybercash shall promptly upgrade the
First USA Wallet to reflect such modifications. Cybercash agrees to provide
First USA with any and all technical enhancements or modifications that
Cybercash offers or may offer to any other Person. Notwithstanding the
foregoing, Cybercash shall not modify the First USA Wallet in any way that would
materially degrade the operational performance of the First USA Wallet without
the prior written consent of First USA.
Section 3.6 Performance Warranty. Cybercash warrants that the First USA Wallet's
technical and operational functionalities shall conform to the Technical
Standards and Specifications and further that it has or shall develop and
implement in a timely manner, all necessary internal technical systems and
procedures to ensure that the operations of the First USA Wallet comport with
standards at all times reasonably acceptable to First USA or as otherwise
required to assure compliance by Cybercash or First USA with any law or
regulation, including, without limitation, the standards for firewalls,
antivirus protection, and system security. First USA shall have the right at any
time and in a reasonable manner, to review and inspect Cybercash's operational
and security standards. Notwithstanding any other provision in this Agreement,
in the event that First USA notifies Cybercash that the First USA Wallet is
failing to conform to the above warranties, First USA may, in its sole
discretion, (i) immediately terminate this Agreement and (ii) request that
Cybercash, without charge, promptly repair or replace the cause of such failure.
If Cybercash fails to promptly repair or replace the cause of such failure,
First USA may terminate the Agreement.
7
13
Section 3.7 Inspections. Cybercash shall permit First USA's technical personnel
to obtain reasonable access to Cybercash's facilities used to provide the
services contemplated herein, for the purpose of performing inspections or
"walk-throughs" in connection with activities relating to the First USA Wallet.
First USA may once during any calendar year, request Cybercash to, and Cybercash
shall, upon reasonable advance notice, permit employees, agents or
representatives of First USA, during normal business hours, to review, inspect
and/or audit Cybercash's financial records and operating procedures relating to
the performance of the First USA Wallet and the services provided under this
Agreement. Cybercash shall cooperate and make available appropriate personnel to
assist representatives of First USA in inspecting and auditing the books,
records and facilities of Cybercash, and Cybercash will reasonably cooperate
with respect to any such inspection or audit.
Section 3.8 Quality Assurance and Reporting. Cybercash shall promptly report to
First USA (a) all malfunctions or delays in the First USA Wallet, the Cybercash
Server or the First USA Internet Merchant-side software discovered by Cybercash,
(b) any knowledge of circumstances that could reasonably result in malfunction
or lead to delay in the performance of the First USA Wallet and the services
described herein, and (c) Cybercash's proposed solution to items (a) and (b),
including a detailed description of all solutions to such problems. First USA
shall have the right to receive and review all quality and performance reports
produced by Cybercash. Cybercash shall accommodate reasonable First USA requests
to expand, alter, or modify Cybercash's quality assurance procedures, if such
expansion, alteration, or modification is of benefit to First USA.
Section 3.9 Data Collection. Cybercash, acting as First USA's agent, shall be
responsible for maintaining adequate means to facilitate the transmission,
receipt and collection of information transmitted by, collected or otherwise
received from First USA Internet Merchants, End Users and *. Data receipt and
collection with respect to First USA Internet Merchant, End User and *
information shall be performed without charge to First USA.
Section 3.10 Disaster Recovery. Cybercash maintains, and shall continue to
maintain throughout the term of this Agreement, offsite disaster recovery
capabilities that permit Cybercash to recover from a disaster and continue
providing the services hereunder within a commercially reasonable period.
Cybercash maintains, and shall continue to maintain throughout the term of this
Agreement, a back-up power supply system to guard against electrical outages.
Section 3.11 Technical Support and Personnel.
(a) First USA and Cybercash shall designate acceptable and
appropriately trained technical personnel to serve as the technical contacts to
communicate regarding all requests or aspects of technical support necessitated
by this Agreement.
8
14
(b) First USA shall offer and provide First Level Technical
Support to End Users and *. Upon the written request of First USA, Cybercash
shall offer and provide First Level Technical Support to First USA Internet
Merchants. Cybercash shall not charge First USA or First USA Internet Merchants
for the provision of such First Level Technical Support for a period of two (2)
years after the date of the execution of this Agreement.
(c) Cybercash shall offer and provide Second Level Technical
Support to First USA without charge.
(d) Cybercash shall provide to designated representatives of
First USA consultation and training concerning the use, design and attributes of
the First USA Wallet and associated services and technology, and the operation
and functioning of the First USA Wallet, sufficient to allow First USA to assume
responsibility for First Level Technical Support provided to End Users and *.
Such training and consultation shall be delivered over a period of one (1)
month and shall commence at times and locations mutually agreed upon by the
parties. Cybercash shall provide additional training and consultation sessions
to such designated representatives if such additional training or consultation
sessions are reasonably necessary to reflect any modifications or upgrades to
the First USA Wallet.
(e) Cybercash shall maintain personnel (i) adequate to perform
its obligations under this Agreement and (ii) possessing such qualification,
knowledge and experience in the provision of the tasks to which they are
assigned as would be required for comparable positions and tasks in competitive
businesses. Cybercash shall provide appropriate training to such personnel as
and when required in order to facilitate the efficient and knowledgeable
performance of services under this Agreement. Cybercash shall monitor the
performance of such personnel and shall take such action as is necessary to
remedy promptly any deficiencies in such performance.
Section 3.12 Insurance. At all times during the term of this Agreement,
Cybercash shall maintain in force comprehensive general liability insurance;
provided that Cybercash shall, at a minimum, obtain and maintain in force
insurance policies providing coverages against the following risks, and in the
following amounts: (i) general liability, $2,000,000; (ii) umbrella liability,
$1,000,000, (iii) products/completed operations, $2,000,000, (iv) non-owned &
hired automobile liability, $1,000,000, and (v) workers compensation as required
by applicable state laws. Such insurance shall include contractual liability
insurance for the indemnification obligations contained in Sections 3.15 and
7.7(b), products hazard and catastrophe coverage, and coverage for negligent
acts, errors and omissions in the provision of the First USA Wallet under this
Agreement. Except to the extent prohibited by law, all insurance provided herein
shall name First USA and all its assignees and Affiliates as additional insureds
and as loss payees. The required coverages referred to and set forth in this
Section 3.12 shall in no way affect, nor are they intended as a limitation of,
Cybercash's liability with respect to the performance of its obligations under
this Agreement. Cybercash further releases, assigns and waives any and all
rights of recovery against First USA and its Affiliates, employees, successors
9
15
and permitted assigns which Cybercash may otherwise have or acquire in or from
or in any way connected with any loss covered by policies of insurance
maintained or required to be maintained by Cybercash pursuant to this Agreement
or because of deductible clauses in or inadequacy of limits of any such policies
of insurance.
Section 3.13 Licenses. Cybercash shall be responsible for obtaining and
maintaining all licenses and permits required from any governmental body or
agency for the performance of its services and technology hereunder.
Section 3.14 Subcontracting Rights. Cybercash shall not enter into any contract
or arrangement pursuant to which any third party shall have responsibility for
the management and technical execution of the First USA Wallet or associated
services provided hereunder. Cybercash shall not enter into any contract or
arrangement pursuant to which any third party shall have responsibility for the
provision or operation of the Cybercash Server.
Section 3.15 Cybercash Indemnification. Cybercash hereby indemnifies and holds
harmless First USA and its Affiliates, and its successors and assigns from any
loss, liability, claim or damage incurred as a result of the negligence, gross
negligence or willful misconduct of Cybercash, a breach of an obligation of
Cybercash to First USA under this Agreement, or claims against First USA brought
by First USA Internet Merchants, End Users, *, any Person, or customers based
on a malfunction of the First USA Wallet.
Section 3.16 Source Code Escrow. Upon the date of the execution of this
Agreement or soon thereafter, which in no case shall be later than thirty (30)
days after date of the execution of this Agreement, First USA and Cybercash
agree to enter into an escrow agreement with an escrow agent acceptable to First
USA and in a form mutually acceptable to both parties. Upon execution of such
escrow agreement, Cybercash hereby agrees to deposit the source code for the
First USA Wallet with the escrow agent. The release conditions of such escrow
agreement shall include the occurrence of any event listed in Section 9.2(b).
Should one of the events identified in Section 9.2(b) occur, First USA shall
have the right to use, copy and modify the Cybercash source code, for the sole
purpose of maintaining and supporting Internet Merchants. Cybercash shall update
the source code held in escrow not less frequently than once every six (6)
months.
Section 3.17 Export Controls. Cybercash acknowledges and agrees that both (i)
certain equipment, software and technical data which may be provided or utilized
in connection with the furnishing of the technology and services hereunder; and
(ii) any activities in connection with the provision of the technology and
services, may be subject to export, re-export or import controls under the U.S.
Export Administration Regulations or similar regulations of the United States or
of any other countries. Cybercash agrees that neither it nor any agents,
contractors, subcontractors or Affiliates shall export, re-export or import any
such equipment, software, technical data or any direct product thereof in
violation of any such laws.
10
16
ARTICLE 4
MARKETING
Section 4.1 *. Subject to the terms and conditions of this Agreement, Cybercash
shall provide First USA with such reasonable assistance as may be necessary *.
Section 4.2 Additional Internet Merchants. After First USA has entered into
agreements to provide the First USA Wallet to *, then with respect to
additional Internet Merchants, (a) *; and (b) * pursuant to subsections 5.7(b)
and (c).
Section 4.3 Exclusivity
(a) The parties acknowledge that it is in their mutual
interest that Cybercash contract with other financial institutions to issue
Agile Wallets. They also acknowledge their mutual intent to provide First USA an
initial advantage in contracting with Internet Merchants to issue First USA
Wallets.
(b) Consistent with the foregoing, prior to March 31, 1999,
and except as otherwise disclosed in Schedule 1, Cybercash shall not, without
the prior written consent of First USA, *. In addition, prior to March 31,
1999, Cybercash shall not issue or cause the issuance of any Agile Wallets
other than the First USA Wallet except pursuant to * as provided above.
Section 4.4 Equal Treatment.
(a) During the term of this Agreement, Cybercash will provide
the First USA Wallet to First USA on terms and conditions not less favorable
than the terms and conditions under which it offers the Agile Wallet to any
other Person.
(b) During the term of this Agreement, Cybercash shall not
develop, offer or market any version of the First USA Wallet under which the
Internet Merchant or Cybercash may solicit or recommend that the modify or
amend the First USA credit card default settings as the default.*
ARTICLE 5
PAYMENTS
Section 5.1 Payments. Unless otherwise agreed to by First USA and Cybercash in
writing, First USA shall not pay Cybercash more than * pursuant to Sections 5.2,
5.3 and 5.4 below.
------------------
Section 5.2 Compensation Fee Payments. In consideration for Cybercash's work in
developing the First USA Wallet, customizing it to First USA's specifications,
and in developing the software and technology necessary to implement First
USA's marketing program, First USA will pay Cybercash * (the "Customization,
Branding and Licensing Fee").
Section 5.3 * License Fee. Subject to Section 5.1, First USA shall give
Cybercash prompt notice of the execution by First USA and * of an agreement for
*. Upon each execution, First USA shall become obligated to pay Cybercash a
fee of * in consideration for Cybercash's * in the First USA Wallet program
and a license for * to use the First USA Wallet.
Section 5.4 * Operations Fee. Subject to Section 5.1, within thirty (30) days
after Cybercash certifies to First USA in writing that the AW Connector has
been installed at the site of * and * has been enabled to spawn First USA
Wallets, First USA shall pay Cybercash an operations fee of * in consideration
for Cybercash's providing and installing the First USA Wallet, maintaining the
gateway, providing technical support and training, processing transactions for
*, and installing upgrades to the First USA Wallet if and when they become
available.
11
17
Section 5.5 * In addition to the amounts set forth in Section 5.2 through 5.4
and subject to the audit procedures set forth in Section 5.12, First USA shall
pay to Cybercash * plus * of the difference between *.
Section 5.6 First USA Wallet Use Royalty. During the term of this Agreement, in
addition to amounts set forth in Sections 5.2 through 5.5, and subject to the
audit procedures set forth in Section 5.12, First USA shall pay Cybercash *.
Section 5.7 Internet Merchants. After the execution of agreements to provide
the First USA Wallet to * (as contemplated in Section 4.1), and subject to the
audit procedures set forth in Section 5.12, then with respect to any additional
Internet Merchants, First USA shall pay to Cybercash: (a) an access fee
mutually agreed upon by First USA and Cybercash pursuant to Section 4.2(a);
(b) *.
Section 5.8 Additional Fees. *.
Section 5.9 Payment Obligations. During the term of this Agreement, First USA
shall be responsible for paying the fees incurred pursuant to this Article 5,
according to the procedures herein. Each month in which any sums become due it
under this Agreement, Cybercash shall invoice First USA for the sums due, and
First USA shall pay the amounts due within thirty (30) days. Disputes related to
any payments due under this Agreement shall not constitute grounds for any party
hereto to cease to perform any of its obligations under this Agreement and shall
be handled in accordance with Article 10.
Section 5.10 Taxes. Cybercash shall be responsible for all taxes of any sort due
on any fees received pursuant to this Agreement.
Section 5.11 Expenses. Cybercash shall be solely responsible for all expenses,
obligations or commitments incurred in connection with the performance of its
obligations under this Agreement.
Section 5.12 Recordkeeping and Audits. Cybercash agrees to make and maintain
such books, records and accounts as are reasonably necessary to verify any
payments made by First USA to Cybercash under this Agreement. Cybercash shall
retain such books, records and accounts for five (5) years. First USA shall have
reasonable access to such books, records and accounts during normal business
hours and upon Cybercash's prior written consent, which consent shall not be
unreasonably withheld, and First USA may make such copies as may be reasonably
necessary to confirm and reconcile payments and the performance of First USA's
obligations under this Agreement. In addition, upon at least thirty (30) days'
prior written notice, First USA shall have the right to retain, at its own
expense, a reputable certified public accounting firm of First USA's choice, to
audit only such books, records, and accounts necessary to verify the accuracy of
accounts relating to Cybercash for the period in question. To the extent that
such an audit discovers any over- or underpayment with respect to such payments,
each party shall promptly make the other parties whole as to any over- or
underpaid amounts.
ARTICLE 6
CONFIDENTIAL INFORMATION, USAGE DATA AND PUBLICITY
Section 6.1 Protection. All Confidential Information (as defined herein)
disclosed by a
12
18
party hereto to any other party hereto in the course of performing under this
Agreement or to which a party hereto gains access in connection with this
Agreement shall be deemed to be the property of the disclosing party. For the
term of this Agreement and for five (5) years thereafter, the receiving party
shall: (i) receive such Confidential Information in confidence; (ii) use
reasonable efforts to maintain the confidentiality of such Confidential
Information and not disclose such Confidential Information to third parties
(except for the receiving party's representatives, agents and contractors who
have a need to know, are under a duty of non-disclosure, and are acting for the
sole benefit of the receiving party), which efforts shall accord such
Confidential Information at least the same level of protection against
unauthorized use and disclosure that the receiving party customarily accords its
own information of a similar nature; (iii) use or permit the use of such
Confidential Information solely in accordance with the terms of this Agreement;
and (iv) promptly notify the disclosing party in writing of any loss or
unauthorized use or disclosure of or access to the disclosing party's
Confidential Information of which it becomes aware. The parties hereto shall
each abide by and reproduce and include any restrictive legends or confidential
rights notices that appear in or on any Confidential Information of the other
party hereto that it is authorized to reproduce. Each party shall also not
remove, alter, cover or distort any confidential rights notices, legends,
symbols or labels appearing in any Confidential Information of any other party
hereto. Confidential Information shall mean any information relating to or
disclosed in the course of this Agreement which is or should be reasonably
understood to be confidential or proprietary to the disclosing party, including,
but not limited to, information about technical processes and formulas, product
designs, sales, cost and other unpublished financial information, product and
business plans, projections and marketing data. The terms and conditions of this
Agreement (as well as all information regarding the negotiation of this
Agreement) shall be deemed to be the Confidential Information of the parties
hereto.
Section 6.2 Exclusions. The restrictions on disclosure set forth above shall not
apply when, and to the extent that the Confidential Information: (i) is or
becomes generally available to the public through no fault of the receiving
party (or any Person acting on its behalf); (ii) was previously rightfully known
to the receiving party free of any obligation to keep it confidential; (iii) is
subsequently disclosed to the receiving party by a third party who may
rightfully transfer and disclose such information without restriction and free
of any obligation to keep it confidential; (iv) is independently developed by
the receiving party or a third party without reference to the disclosing party's
Confidential Information; or (v) is required to be disclosed by the receiving
party as a matter of law, provided that the receiving party uses all reasonable
efforts to provide the disclosing party with at least ten (10) days' prior
written notice of such disclosure and the receiving party discloses only that
portion of the Confidential Information that is legally required to be furnished
pursuant to the opinion of legal counsel of the receiving party.
Section 6.3 Return of or Destroy Confidential Information Upon Termination or
Expiration of Agreement. Upon the termination or expiration of this Agreement,
each party shall promptly return or destroy all materials subject to
Intellectual Property Rights of the other party, all Confidential Information of
the other party, and other information, documents, manuals and
13
19
other materials belonging exclusively to the other party, except as may be
otherwise provided in this Agreement.
Section 6.4*.
Section 6.5 Public Statements Regarding Agreement. The parties hereto shall
jointly prepare a press release regarding the existence of this Agreement and
the terms hereof at a mutually agreed upon time. The parties hereto acknowledge
that each may have internal constraints that may affect the timing of issuance
and the content of any such press releases. Unless required by law or to assert
its rights under this Agreement, and except for disclosure on a "need to know
basis" to its own employees and consultants, and its legal, investment,
financial and other professional advisers on a confidential basis, each party
shall not disclose the existence of or the terms of this Agreement to any Person
without the prior written consent of the other party. The breach of this Section
6.5 by either party, shall constitute a material breach of this Agreement and
shall accord the other party the immediate right to terminate this Agreement as
provided in Article 9.
Section 6.6 Equitable Relief. The parties acknowledge that the breach of any
portion of this Article 6 would cause the non-disclosing party irreparable harm
for which monetary damages would be inadequate. Accordingly, the non-disclosing
party shall be entitled to seek injunctive or other equitable relief to remedy
any threatened or actual breach of any portion of this Article 6 by the other
party.
ARTICLE 7
CYBERCASH REPRESENTATIONS AND WARRANTIES
Cybercash represents and warrants as of the date hereof as follows:
Section 7.1 Organization and Qualification. Cybercash is duly organized and
existing in good standing under the laws of the jurisdiction in which it is
organized, is duly qualified and in good standing as a foreign corporation in
every state in which the character of its business requires such qualifications,
and has the power to own its property and to carry on its business as now being
conducted.
Section 7.2 Due Authorization. The execution and delivery of this Agreement and
compliance by Cybercash with all provisions of this Agreement (i) are within the
corporate power and authority of Cybercash, and (ii) have been duly authorized
by all requisite corporate proceedings. The Agreement has been duly executed
and delivered by Cybercash and constitutes a valid and binding agreement of
Cybercash, enforceable in accordance with its terms, except that (i) such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights,
and (ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to
14
20
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
Section 7.3 Conflicting Agreements. The execution and delivery of this Agreement
shall not conflict with or result in a breach of the terms, conditions or
provisions of, or give rise to a right of termination under, or constitute a
default under, or result in any violation of, the organizational documents of
Cybercash or any mortgage, agreement, contract, instrument, order, judgment,
decree, statute, law, rule or regulation to which Cybercash or any of its
respective properties is subject.
Section 7.4 Consents. No authorizations or other consents or approvals or
notices of or to any Person are required in connection with (i) the
participation by Cybercash in the transactions contemplated by this Agreement;
(ii) the development and implementation of the First USA Wallet in accordance
with the applicable provisions of this Agreement and in compliance with all
applicable law; (iii) the validity and enforceability of this Agreement; and
(iv) the execution, delivery and performance by Cybercash of this Agreement.
Section 7.5 Litigation. No litigation, investigation, arbitration or
administrative proceeding or claim of or before any arbitrator or authority is
pending, or threatened against or affecting any of its properties, rights, or
assets either (i) with respect to this Agreement; or (ii) that, if determined
adversely to Cybercash could by itself or together with any other proceeding or
claim be reasonably expected to have a material adverse effect (either
individually or in the aggregate).
Section 7.6 Laws and Regulations. Cybercash is in compliance in all material
respects with all applicable federal, state, local and foreign laws and
regulations and has obtained all licenses required or necessary for the conduct
of the Agile Wallet. There are no claims, notices, civil, criminal or
administrative actions, suits, hearings, investigations, inquiries or
proceedings pending or, to the best knowledge of Cybercash, threatened against
Cybercash with respect to the Agile Wallet. Cybercash (i) has not received
notice of any violation of any such law, order from any court or other
governmental authority, nor other legal requirement, nor is it in default with
respect to any order from any court or other governmental authority, nor (ii) is
Cybercash in default under any franchise, license, authorization, permit, or
notice related to the Agile Wallet. There are no orders of any federal, state or
local court or governmental or regulatory authority or arbitrator, domestic or
foreign, applicable to Cybercash regarding the operation of the Agile Wallet.
Section 7.7 Patents and Trademarks.
(a) Cybercash owns, or has the right to use under valid and
enforceable agreements, all Intellectual Property Rights related to the
operation of Agile Wallet. The operation of Agile Wallet as presently conducted
or proposed to be conducted by Cybercash does not infringe or violate any
Intellectual Property Rights of any other Person, and Cybercash has
15
21
not received any charge, complaint, claim, demand or notice alleging any such
infringement or violation. No other Person has any right to or interest in any
inventions, improvements, discoveries or other confidential information utilized
by Cybercash that relate to the Agile Wallet.
(b) Cybercash hereby indemnifies and holds harmless First USA,
its successors and assigns, including any Internet Merchants and End Users, from
any loss, liability, claim or damage regarding the Agile Wallet utilized
hereunder, based on any actual or alleged infringement of an Intellectual
Property Right of any third party. If such claim arises, or if in Cybercash's
judgement is likely to arise, First USA agrees to allow Cybercash, at
Cybercash's option, to procure the right for First USA to continue to exercise
its rights granted herein, or to replace or modify them in a functionally
equivalent manner so they become noninfringing. If such an event involves the
claim of any third party, Cybercash shall be entitled to participate in and, to
the extent it shall wish, assume control over the defense, settlement,
adjustment or compromise of such claim. First USA shall have the right to employ
separate counsel in any action or claim and to participate in the defense of any
action thereof at the expense of Cybercash.
Section 7.8 Compliance. Cybercash represents and warrants to First USA that its
performance under this Agreement shall conform to applicable laws and government
rules and regulations.
Section 7.9 "Year 0000" Xxxxxxxx. All computer systems, software, and hardware
used in the provision of services and the First USA Wallet by Cybercash are able
to accurately process date data, including, calculating, comparing, and
sequencing from, into and between the twentieth century (through year 1999), the
year 2000 and the twenty-first century, including leap year calculations. To the
best knowledge of Cybercash after conducting reasonable inquiries, Cybercash is
not aware of any inability on its part to accurately process date data, or to
timely remedy any deficiencies in the operations of the First USA Wallet in
respect of the year 2000 and other date-related processing or calculations.
ARTICLE 8
FIRST USA REPRESENTATIONS AND WARRANTIES
First USA represents and warrants as of the date hereof as follows:
Section 8.1 Organization and Qualification. First USA is duly organized and
existing in good standing under the laws of the jurisdiction in which it is
organized, is duly qualified and in good standing as a foreign corporation in
every state in which the character of its business requires such qualifications,
and has the power to own its property and to carry on its business as now being
conducted.
16
22
Section 8.2 Due Authorization. The execution and delivery of this Agreement and
compliance by First USA with all provisions of this Agreement (i) are within the
corporate power and authority of First USA, and (ii) have been duly authorized
by all requisite corporate proceedings. The Agreement has been duly executed and
delivered by First USA and constitutes a valid and binding agreement of First
USA, enforceable in accordance with its terms, except that (i) such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights, and (ii)
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
Section 8.3 Conflicting Agreements. The execution and delivery of this Agreement
shall not conflict with or result in a breach of the terms, conditions or
provisions of, or give rise to a right of termination under, or constitute a
default under, or result in any violation of, the organizational documents of
First USA or any mortgage, agreement, contract, instrument, order, judgment,
decree, statute, law, rule or regulation to which First USA or any of its
respective properties is subject.
ARTICLE 9
TERM AND TERMINATION
Section 9.1 Term. Once effective, this Agreement shall continue in force for a
period of five (5) years or until the valid termination hereof as provided
herein. First USA, at its option, may elect to extend the Agreement for another
five (5) years on prior written notice to Cybercash.
Section 9.2 Termination. (a) Except as otherwise provided in Section 3.6, either
party may, at its option, terminate this Agreement in the event of a material
breach by the other party. Such termination maybe effected only through written
notice to the breaching party and which notice shall specifically identify the
breach on which termination is based. Following receipt of such notice, the
party in breach shall have ninety (90) days to cure such breach, and this
Agreement shall terminate in the event that such cure is not effected by the end
of such period.
(b) If Cybercash becomes or is declared insolvent or bankrupt;
is the subject to any proceedings relating to its liquidation or insolvency or
for the appointment of a receiver, conservator, or similar officer; or makes an
assignment for the benefit of all or substantially all of its creditors or
enters into any agreement for the composition, extension or readjustment of all
or substantially all of its obligations, then First USA may terminate this
Agreement.
17
23
(c) If Cybercash charges First USA or First USA Internet
Merchants any additional fees for its services hereunder at any time after the
second anniversary of the date of the execution of this Agreement, except for
those fees provided for herein, First USA may terminate this Agreement.
(d) If First USA determines in its sole discretion that the
market does not support the First USA Wallet, or the First USA Wallet does not
meet First USA's standards for quality, then First USA may terminate this
Agreement.
Section 9.3 Transition. (a) Notwithstanding the provisions of Section 9.2, in
the event that this Agreement is terminated by either party, First USA may
request an extension of this Agreement, and Cybercash shall continue to perform
hereunder at First USA's sole cost and expense for a period of up to six (6)
months from the otherwise effective date of the termination in order to allow
the orderly migration and transition of operating responsibility for the First
USA Wallet, to First USA and/or a third party designated by First USA (the
"Transition"). Upon termination of this Agreement, Cybercash shall license the
First USA Wallet on reasonable commercial terms to a third party chosen by First
USA. The license shall enable such third party to install, modify, operate and
maintain the First USA Wallet on behalf of First USA.
(b) If deemed reasonably necessary by First USA in order to
facilitate the Transition, First USA shall have the right to enter the
facilities where the personnel and equipment related to the operation of the
First USA Wallet and Cybercash Server are located for the purposes of (i)
observing such operations; (ii) directing such operations and retaining such
personnel; and (iii) obtaining copies of any and all related records. In
addition, Cybercash shall provide to First USA copies of all source codes,
deliver to First USA all Usage Data, provide First USA with access to any and
all multiple payment products and provide to First USA all related documentation
for the First USA Wallet without charge.
Section 9.4 Survival. All accrued and outstanding payment obligations hereunder,
any remedies for breach of this Agreement and Section 3.15, Section 5.9,
Sections 6.1, 6.2, 6.3 and 6.6, Section 7.7(b), Article 10, Article 11 and
Article 12 and all other provisions of this Agreement which may be reasonably
interpreted or construed as surviving the termination or expiration of this
Agreement, shall survive the termination or expiration of this Agreement.
ARTICLE 10
DISPUTE RESOLUTION
Section 10.1 Disputes. Any dispute, controversy, claim or disagreement between
the parties hereto arising from, relating to or in connection with this
Agreement, any agreement, certificate or other document referred to herein or
delivered in connection herewith, or the relationships of the parties hereunder
or thereunder, including questions regarding the interpretation, meaning or
performance of this Agreement, and including claims based on
18
24
contract, tort, common law equity, statute, regulation, order or otherwise
("Dispute") shall be resolved in accordance with this Article 10.
Section 10.2 Xxxxx 0 Xxxxxxx Xxxxxx. Upon the written request of any party,
First USA and Cybercash shall each appoint a designated representative whose
task shall be to meet the other party's designated representative (by conference
telephone call or in person at a mutually agreeable site) in an endeavor to
resolve such Dispute ("Level 1 Dispute Review"). The designated representatives
shall meet as often as the parties reasonably deem necessary to discuss the
Dispute and negotiate in good faith in an effort to resolve the Dispute without
the necessity of any formal proceeding.
Section 10.3 Xxxxx 0 Xxxxxxx Xxxxxx. If resolution of the Dispute cannot be
resolved within the earlier of (i) fifteen (15) days of the first Xxxxx 0
Xxxxxxx Xxxxxx meeting or (ii) such time as when either party gives the other
notice of an impasse ("Level 1 Dispute Termination Date"), a chief executive
officer (or a functional equivalent) of each of First USA and Cybercash shall
meet (by conference telephone call or in person at a mutually agreeable site)
within 72 hours after the Xxxxx 0 Xxxxxxx Xxxxxxxxxxx Date for the purpose of
resolving such unresolved Dispute ("Level 2 Dispute Review").
Section 10.4 Submission of Dispute to Mediation. If the parties are unable to
resolve the Dispute within a reasonable period after commencement of the Xxxxx 0
Xxxxxxx Xxxxxx, the parties shall give each other notice of the existence of a
continuing impasse (the date on which both parties are in receipt of such
notice, the "Level 2 Dispute Termination Date") and shall thereafter immediately
submit the Dispute to mediation in accordance with the Commercial Mediation
Rules of the American Arbitration Association ("AAA") and shall bear equally the
costs of the mediation. The parties will act in good faith to jointly appoint a
mutually acceptable mediator, seeking assistance in such regard from the AAA
within fifteen (15) days of the Xxxxx 0 Xxxxxxxxxxx Xxxx. The parties agree to
participate in good faith in the mediation and negotiations related thereto for
a period of thirty days commencing with the selection of the mediator and any
extension of such period as mutually agreed to by the parties.
Section 10.5 Arbitration.
(i) If the parties cannot agree to a mediator within fifteen
days of the Xxxxx 0 Xxxxxxx Xxxxxxxxxxx Date or if the Dispute
is not resolved within thirty (30) days after the beginning of
the mediation and any extension of such periods as mutually
agreed to by the parties, the Dispute shall be submitted to,
and finally determined by, binding arbitration in accordance
with the following provisions of this Section 10.5, regardless
of the amount in controversy or whether such Dispute would
otherwise be considered justiciable or ripe for resolution by
a court or arbitration panel.
19
25
(ii) Any such arbitration shall be conducted by the AAA in
accordance with its current Commercial Rules ("AAA Rules"),
except to the extent that the AAA Rules conflict with the
provisions of this Section, in which event the provisions of
this Section shall control.
(iii) The arbitration panel (the "Panel") shall consist of
three neutral arbitrators ("Arbitrators"), each of whom shall
be an attorney having five or more years experience in the
primary area of law as to which the Dispute relates, and shall
be appointed in accordance with the AAA Rules (the "Basic
Qualifications").
(iv) Should an Arbitrator refuse or be unable to proceed with
arbitration proceedings as called for by this Section 10.5, a
substitute Arbitrator possessing the Basic Qualifications
shall be appointed by the AAA. If an Arbitrator is replaced
after the arbitration hearing has commenced, then a rehearing
shall take place in accordance with the provisions of this
Section 10.5 and the AAA Rules.
(v) The arbitration shall be conducted in the location of the
party against whom the arbitration claim is being filed;
provided, that the Panel may from time to time convene, carry
on hearings, inspect property or documents and take evidence
at any location which the Panel deems appropriate.
(vi) The Panel may in its discretion order a pre-exchange of
information including production of documents, exchange of
summaries of testimony or exchange of statements of position
and shall schedule promptly all discovery and other procedural
steps and otherwise assume case management initiative and
control to effect an efficient and expeditious resolution of
the Dispute.
(vii) At any oral hearing of evidence in connection with any
arbitration conducted pursuant to this Section 10.5, each
party and its legal counsel shall have the right to examine
its witnesses and to cross-examine the witnesses of the other
party. No testimony of any witness shall be presented in
written form unless the opposing parties shall have the
opportunity to cross-examine such witness, except as the
parties otherwise agree in writing and except under
extraordinary circumstances where, in the opinion of the
Panel, the interests of justice require a different procedure.
(viii) Within fifteen (15) days after the closing of the
arbitration hearing, the Panel shall prepare and distribute to
the parties a written award, setting forth the Panel's
findings of facts and conclusions of law relating to the
Dispute, including the reasons for the giving or denial of any
requested remedy or relief. The Panel shall have the authority
to award any remedy or relief that a court of competent
jurisdiction could order or grant, and shall award interest on
any monetary award from the date that the loss or expense was
incurred by the successful party. In
20
26
addition, the Panel shall have the authority to decide issues
relating to the interpretation, meaning or performance of this
Agreement, any agreement, certificate or other document
referred to herein or delivered in connection herewith, or the
relationships of the parties hereunder or thereunder, even if
such decision would constitute an advisory opinion in a court
proceeding or if the issues would otherwise not be ripe for
resolution in a court proceeding, and any such decision shall
bind the parties in their performance of this Agreement and
such other documents.
(ix) Except as necessary in court proceedings to enforce this
arbitration provision or an award rendered hereunder, or to
obtain interim relief, no party nor any arbitrator shall
disclose the existence, content or results of any arbitration
conducted hereunder without the prior written consent of the
other parties.
(x) To the extent that the relief or remedy granted in an
award rendered by the Panel is relief or a remedy on which a
court could enter judgment, a judgment upon the award rendered
by the Panel may be entered in any court having jurisdiction
thereof. Otherwise, the award shall be binding on the parties
in connection with their obligations under this Agreement and
in any subsequent arbitration or judicial proceedings among
any of the parties.
(xi) The parties agree to share equally the cost of any
arbitration, including the administrative fee, the
compensation of the arbitrators and the costs of any neutral
witnesses or proof produced at the direct request of the
Panel.
(xii) Notwithstanding the choice of law provision set forth in
Section 12.7, The Federal Arbitration Act, 9 U.S.C. Sections 1
to 14, except as modified hereby, shall govern the
interpretation and enforcement of this Section 10.5.
Section 10.6 Recourse to Courts and Other Remedies. Notwithstanding the Dispute
resolution procedures contained in Section 10.5, any party may apply to any
court having jurisdiction (a) to enforce this Agreement to arbitrate, (b) to
seek provisional injunctive relief so as to maintain the status quo until the
arbitration award is rendered or the Dispute is otherwise resolved, (c) to avoid
the expiration of any applicable limitation period, (d) to preserve a superior
position with respect to other creditors, or (e) to challenge or vacate any
final judgment, award or decision of the Panel that does not comport with the
express provisions of Section 10.5.
Section 10.7 Attorneys' Fees. If any action, suit, or proceeding is commenced to
establish, maintain, or enforce any right or remedy under this Agreement, the
party not prevailing therein shall pay, in addition to any damages or other
award, all reasonable attorneys' fees and litigation expenses incurred therein
by the prevailing party.
Section 10.8 Affiliates. Each party hereto agrees that for purposes of this
Article 10,
21
27
references to the parties shall also include their respective Affiliates, who
shall be subject to the Dispute resolution procedures of this Article 10 to the
same extent as the parties.
ARTICLE 11
INDEMNIFICATION PROCEDURES AND LIABILITY
Section 11.1 Procedure for Indemnification If First USA seeks indemnification
from Cybercash under Sections 3.15 or 7.7(b), (a) First USA shall notify
Cybercash within thirty (30) days after learning of the occurrence of any event
that First USA asserts is an indemnifiable event pursuant to this Agreement. If
such event involves the claim of any third party and Cybercash confirms in
writing its responsibility for such liability, if established, Cybercash shall
be entitled to participate in and, to the extent it shall wish, assume control
over (in which case Cybercash shall assume all expense with respect to) the
defense, settlement, adjustment or compromise of such claim.
(b) First USA shall have the right to employ separate counsel
in any action or claim and to participate in the defense thereof at the expense
of Cybercash (i) if the retention of such counsel has been specifically
authorized by Cybercash, or (ii) if the counsel is retained because Cybercash
does not notify First USA within twenty (20) days after receipt of a claim
notice that it elects to undertake the defense thereof. First USA shall have the
right to employ counsel at First USA's own expense and to participate in such
action or claim, including settlement or trial, so long as such participation
does not substantially interfere in Cybercash's defense of such claim or action.
(c) Cybercash shall obtain the prior written approval of First
USA before entering into any settlement, adjustment, or compromise of such claim
or ceasing to defend against such claim, if pursuant to or as a result of such
settlement, adjustment, compromise, or cessation, injunctive or other relief
would be imposed against First USA.
(d) If Cybercash does not assume control over the defense of
such claim as provided in Section 11.1(a), First USA shall have the right to
defend the claim in such manner as it may deem appropriate at the cost and
expense of Cybercash, and with the consent of Cybercash, to settle, adjust, or
compromise such claim. First USA may settle, adjust, or compromise any such
claim without the consent of Cybercash if First USA waives indemnification for
such claim.
(e) Cybercash shall remit payment for the amount of a valid
and substantiated claim for indemnification hereunder promptly upon receipt of a
claim notice therefor. Upon the payment in full of any claim hereunder,
Cybercash shall be subrogated to the rights of First USA against any person with
respect to the subject matter of such claim.
22
28
(f) In the event that Cybercash reimburses First USA for any
third party claim, First USA shall remit to Cybercash any reimbursement that
First USA subsequently receives for such third party claim.
Section 11.2 Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION LIABILITY
SET FORTH IN SECTION 3.15 AND SECTION 7.7(b) (WHICH SHALL BE UNLIMITED), IN NO
EVENT OR UNDER ANY CIRCUMSTANCE SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR ANY LOSS OF PROFITS, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT
APPLY TO AN INTENTIONAL OR WILLFUL BREACH OF THIS AGREEMENT (IT BEING UNDERSTOOD
THAT IN ORDER TO DEMONSTRATE THAT A FAILURE TO PROVIDE AN APPROVAL UNDER
CIRCUMSTANCES WHERE THIS AGREEMENT REQUIRES SUCH APPROVAL NOT TO BE UNREASONABLY
WITHHELD, AMOUNTED TO AN INTENTIONAL OR WILLFUL BREACH OF SUCH REQUIREMENT, A
PARTY MUST SHOW THAT THE OTHER PARTY ACTED IN BAD FAITH).
ARTICLE 12
GENERAL TERMS AND CONDITIONS
Section 12.1 Independent Contractor Relationship Among Parties. The parties to
this Agreement are independent contractors. This Agreement shall not be
interpreted or construed to create an association, joint venture or partnership
among the parties or to impose any partnership obligation or liability upon any
of the parties hereto.
Section 12.2 Force Majeure. (a) For the purposes of this Agreement, "Force
Majeure Event" means an event, condition or circumstance beyond the reasonable
control of the party affected (the "Affected Party") which, despite all
reasonable efforts of the Affected Party to prevent it or mitigate its effects,
prevents the performance by such Affected Party of its obligations hereunder.
Subject to the foregoing, Force Majeure Events shall include, without
limitation:
(i) explosion and fire;
(ii) flood, earthquake, storm, or other natural
calamity or act of God;
(iii) strike or other labor dispute;
(iv) war, insurrection or riot;
(v) acts of or failure to act by any governmental
authority; and
23
29
(vi) changes in law;
provided, however, that in no event will the unavailability of funds or Year
2000 issues constitute a Force Majeure Event.
(b) Obligations Under Force Majeure.
(i) If an Affected Party is rendered unable, wholly
or in part, by a Force Majeure Event, to carry out some or all
of its obligations under this Agreement, then, during the
continuance of such inability, the obligation of such Affected
Party to perform the obligations so affected shall be
suspended.
(ii) The Affected Party shall give written notice of
the Force Majeure Event to the other party (the "Unaffected
Party") as soon as practicable after such event occurs, which
notice shall include information with respect to the nature,
cause and date of commencement of the occurrence(s), and the
anticipated scope and duration of the delay. Upon the
conclusion of a Force Majeure Event, the Affected Party shall,
with all reasonable dispatch, take all necessary steps to
resume the obligation(s) previously suspended.
(iii) Notwithstanding the foregoing, an Affected
Party shall not be excused under this Section 12.2 for (1) any
non-performance of its obligations under this Agreement having
a greater scope or longer period than is justified by the
Force Majeure Event, or (2) for the performance of obligations
that arose prior to the Force Majeure Event. Nothing contained
herein shall be construed as requiring an Affected Party to
settle any strike, lockout or other labor dispute in which it
may be involved.
(c) Continued Payment Obligation. Either party's obligation to
make payments already owing shall not be suspended by Force Majeure Events.
(d) Extended Force Majeure. Either party may terminate this
Agreement upon thirty (30) days prior written notice to the other party if Force
Majeure Events prevent the other party from substantially performing its
obligations hereunder for a cumulative period of 365 days provided that strikes
or other labor disputes shall be disregarded in determining such cumulative
period.
Section 12.3 Severability. If any term, provision, or restriction of this
Agreement and any appendix, exhibit, or schedule hereto is held by a court or
panel of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
and such exhibits shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. It is hereby stipulated and
24
30
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such which may be hereafter declared invalid, void or unenforceable.
Section 12.4 Assignment of Agreement. No party shall assign, sublicense or
otherwise transfer (voluntarily, by operation of law or otherwise) this
Agreement or any right, interest or benefit under this Agreement, without the
prior written consent of the other party, which consent shall not be
unreasonably withheld. Any attempted assignment, sublicense or transfer in
derogation hereof shall be null and void. Subject to the foregoing, this
Agreement shall be fully binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns.
Section 12.5 Obligation to Notify Upon Knowledge of Event or Circumstance Giving
Rise to Claim, Liability, Etc. Each party hereto shall promptly inform the other
party hereto of any event or circumstance and provide all information related to
its respective information, properties or products which could reasonably lead
to a claim, demand, or liability of or against the other party and/or its
Affiliates by any third party.
Section 12.6 Amendment and Modification of Agreement. No change, amendment or
modification of any provision of this Agreement or waiver of any of its terms
shall be valid unless set forth in writing and signed by the party to be bound
thereby.
Section 12.7 Choice of Law and Venue. This Agreement shall be interpreted,
construed and enforced in all respects in accordance with the laws of the state
of Delaware. Each party irrevocably consents to the exclusive jurisdiction of
any state or federal court of or within the State of Delaware over any action or
proceeding arising out of or related to this Agreement, and waives any objection
to venue or inconvenience of the forum in any such court.
Section 12.8 Waiver of Compliance or Enforcement. The failure of any party
hereto to insist upon or enforce strict performance by the other party of any
provision of this Agreement or to exercise any right under this Agreement shall
not be construed as a waiver or relinquishment to any extent of such party's
right to assert or rely upon any such provision or right in that or any other
instance; rather the same shall be and remain in full force and effect.
Section 12.9 Notices. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in writing, shall
reference this Agreement and shall be deemed to have been delivered and given
(a) when delivered personally; (b) three (3) business days after having been
sent by registered or certified U.S. mail, return receipt requested, postage and
charges prepaid, whether or not actually received; or (c) one (1) business day
after deposit with a commercial overnight courier, with written verification of
receipt. All communications shall be sent to the addresses set forth below or to
such other address as may be designated by a party by giving written notice to
the other party pursuant to this Section 12.9.
25
31
If to First USA: Three Xxxxxxxxx Centre
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Tele: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxxx
with a copy to: Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
If to Cybercash: Cybercash Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
Attn: General Counsel
Tele: (000) 000-0000
Fax: (000) 000-0000
Section 12.10 Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto and supersedes any and all prior agreements or
understandings among the parties with respect to the subject matter hereof. No
party hereto shall be bound by, and each party hereto specifically objects to,
any term, condition or other provision or other condition which is different
from or in addition to the provisions of this Agreement (whether or not it would
materially alter this Agreement) and which is proffered by any other party
hereto in any correspondence or other document, unless the party to be bound
thereby specifically agrees to such provision in writing.
Section 12.11 Headings. The headings used in this document are for convenience
only and are not to be construed to have legal significance. In the event that
any provision of this Agreement conflicts with the law under which this
Agreement is to be construed or if any such provision is held invalid by a court
with jurisdiction over the parties to this Agreement, such provision shall be
deemed to be restated to reflect as nearly as possible the original intentions
of the parties in accordance with applicable law, and the remainder of this
Agreement shall remain in full force and effect.
Section 12.12 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each party and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
26
32
Section 12.13 Further Assurances. Each party hereto agrees to take, or cause to
be taken, all such further or other actions as shall reasonably be necessary to
make effective, to consummate and to perform the undertakings and obligations
contemplated by this Agreement.
[signature page follows]
27
33
IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be executed on its behalf as of the date first above written.
FIRST USA BANK
By: /s/ Xxxx Xxxxxxxxx
___________________________
Name: Xxxx Xxxxxxxxx
Title: Vice President
CYBERCASH INC.
By: /s/ Xxxxx Xxxx
___________________________
Name: Xxxxx Xxxx
Title: Executive Vice
President
28
34
EXHIBIT A
TECHNICAL STANDARDS & SPECIFICATIONS
[22 pages omitted]
35
EXHIBIT B
GRAPHICS INTERFACE
[9 pages omitted]
36
EXHIBIT C
*
[1 page omitted]
37
SCHEDULE 1
Cybercash has entered into an agreement with * and * to develop a pilot
program for *. Pursuant to that agreement, Cybercash expects to issue a small
number of branded Agile Wallets in the first quarter of 1999. It is understood
that the Agile Wallets issued under this program will not be used as a mechanism
to *.
