Exhibit 10.23
ePAYMENT ALLIANCE
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU") for an Alliance to develop and market
an electronic payment solution is effective April 1st, 2001 (the "Effective
Date") by and between each of:
1. CARDIS Enterprises International B.V., with its head office at
Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx ("CARDIS")
2. CIT Canada Inc., a wholly owned subsidiary of Silverline Technologies,
Inc, with its head office at 000 Xxxxxx Xxxx Xx. Xxxxx Xxxx, Xxxxxxx
Xxxxxx X0X 0X0. ("CIT")
3. Xxxxxxxx & Devrient Systems Canada, Inc, with its office at 000 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0. ("G&D")
4. Ingenico, with its head office at 0, Xxxx Xx Xxxx Xxxxxx, 00000 Xxxxxxx
Xxxxx, Xxxxxx ("Ingenico" )
5. Oasis Technology Ltd., with its head office at 00 Xxxxxxxx Xxx. Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0. ("Oasis")
6. Schimatic Cash Transactions Xxxxxxx.xxx, Inc. doing business as Smart
Chip Technology [initialed and dated 5/1/01] Technologies, with its
head office at 000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, XX, XXX 00000.
("SCTN") Inc.
Each of CARDIS, CIT, G&D, Ingenico, Oasis, and SCTN are referred to herein
individually as a "Party" and collectively as the "Parties".
WHEREAS:
A. Each of the Parties is in the business of supplying goods and/or
services relating electronic payment solutions;
B. The Parties wish to collaborate and jointly develop and market enhanced
end-to-end electronic payment solutions based on the combined expertise
and proprietary technologies of each of the Parties;
C. The Parties wish to undertake some preliminary research to determine
whether there exists: (i) a viable market for such enhanced end-to-end
electronic payment solutions and (ii) a basis for establishing a formal
joint venture amongst the Parties; and
D. The Parties wish to outline some general principles upon which the
Parties will cooperate during the development and marketing of such
solution, and if the Parties determine that there is a basis for
establishing a formal arrangement, the form and general principles of
such a formal arrangement.
NOW THEREFORE, IN CONSIDERATION of the mutual benefits to be derived from this
MOU, the Parties agree as follows:
1 PURPOSE
1.1 The purpose of this MOU is to outline the principles upon which an
alliance will be created for the development and marketing of an
end-to-end payment solution for micropayments (the "Alliance Solution")
based on a multi-application smart card. The Alliance Solution will be
Internet capable and offer a complete payment solution that integrates
traditional card payments with loyalty programs and micro payments,
i.e., amounts less than $25.00, as well as merchant, acquiring, issuing
and settlement functionality in the physical, virtual, and mobile
worlds of commerce.
1.2 The Parties will co-operate in:
a) the marketing and sales activities related to the Alliance
Solution;.
b) the continued development and support of the Alliance
Solution;
c) the initial rollout and related marketing activities in North
America; and
d) the subsequent rollout of the Alliance Solution in other
regions of the world.
2. THE ALLIANCE SOLUTION
2.1 The Alliance Solution shall be comprised of the following components
from each respective Party (as mutually agreed by the steering
committee) as follows (each a "Component" and collectively, the
"Components"):
2.1.1 CARDIS may provide its proprietary smart card based
micro-payment system, including patented methodology and any
unique software required for running its system, including
development of interface specifications to the other
components as required to interface with Cardis' intellectual
property.
2.1.2 CIT may provide the PKI security server and professional
services associated with co-project management, systems
design, onshore/offshore development, testing and overall
systems integration. This will include some or all of the
following:
(i) G&D smart card security, into the Oasis Payment
system including the G&D security client and CIT
security server;
(ii) SCTN loyalty system with the terminals, the G&D chip
cards and the Oasis system;
(iii) the CARDIS micro-payment system with the terminals,
the G&D chip cards and the Oasis system.
2.1.3 G&D may provide the Smart card security that includes PKI
card applications, PC card readers, Card Operating System,
card production and fulfillment, and Certificate Authority
functionality.
2.1.4 Ingenico may provide smart card reader/writer card accepting
devices, security expertise on smart card and e-commerce
solutions, a terminal estate management system, and associated
terminal testing tools for application development.
2.1.5 Oasis may provide the base payment system that includes IST/
Switch, eMerchant, Merchant Accounting, Issuing Card
Accounting, iSeries and the Oasis Internet Banking adapters,
and related modules. Oasis will act as lead architect and
overall integration designer.
2.1.6 SCTN may provide its proprietary smart card-based loyalty
program, including patented methodology and any unique
software required for running its system in support of its
program, including development of interface specifications to
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the other components as required to interface with SCTN
intellectual property. SCTN will also provide loyalty program
management services through its loyalty backend processing
system known as "Loyalty Central".
3. BRAND NAME AND INTELLECTUAL PROPERTY
3.1 In order to build brand name distinctiveness and add value to the
Alliance Solution, the Parties shall within 60 days of the Effective
Date of this MOU, agree to a brand name and corresponding xxxx for the
Alliance Solution (the "Brand Name"). The Brand Name shall be
beneficially owned by the Parties and will be the sole name or xxxx
under which each Party shall market the Alliance Solution.
3.2 The Parties acknowledge that in the process of developing the Alliance
Solution and integrating the Components, technologies may be created to
which new intellectual property rights ("New IP Rights") will attach.
The Parties agree that any such New IP Rights will be owned by the
Party or Parties that created the technology until such Party or
Parties agree to transfer these rights to the legal entity ("Alliance
Co."), in which each Party will have an ownership interest, when it is
formed. The above is not applicable to any intellectual property rights
that a Party has in its existing Components.
3.3 The IP Rights, including Brand Name, will become assets of Alliance Co.
4. COMMERCIAL AGREEMENT
4.1 Within 90 days of the Effective Date of this Agreement, the Parties
shall enter into a commercial agreement (the "Agreement") which shall
include without limitation, standard terms for agreements of this
nature and the following:
4.1.1 Subject to agreement on cross-licensing and/or sublicensing
terms, a grant by each Party to each of the other Parties, or
Alliance Co. when it is formed, of (i) a non-exclusive,
limited, world-wide license to market, distribute and
sub-license such Party's Components for use solely with the
Alliance Solution under the Brand Name and (ii) a
non-exclusive, fully paid-up, world-wide, license to use the
Brand Name solely in conjunction with the Components.
4.1.2 Terms and conditions for the use of the Brand Name including
without limitation, prohibiting the marketing of individual
Components under the Brand Name as well as technical
specifications for use of the Brand Name.
4.1.3 Provision for each Party to retain ownership of its respective
Components that are proprietary to such Party and are in part
or holistically required for the Alliance Solution.
4.1.4 Provisions for the registration of the Brand Name as a serial
or trademark and any applicable Internet domain name
registration including the following: "Alliance Co. or Oasis
(in the case Alliance Co. has yet to be created) will, to the
extent possible on a commercially reasonable basis, register,
trademark and maintain the Brand Name on behalf of the
Partners, including but not limited to all necessary Internet
domain name registrations to protect the Parties' rights in
locations agreed by the Parties. The Parties agree to share
the cost of such registration, trademark and maintenance of
the Brand Name equally. Each Party agrees to pay its share to
Alliance Co. or Oasis promptly upon receipt of Alliance Co.'s
or Oasis's invoice. The Parties agree that Oasis will have no
responsibility to defend an application to register or have
any liability whatsoever for any failure to register,
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trademark and maintain the Brand Name. In the event the Brand
Name is registered by Oasis, the registration shall be
transferred to Alliance Co. once Alliance Co. has been
created."
4.1.5 Provision for the ownership of the Brand Name by the Parties
in equal proportionate shares and rights to use the Brand Name
upon termination of the Agreement.
4.1.6 Terms and conditions for the sale or cross-licensing of
Components by the Parties, which may include without
limitation, a discount of up to 20% on the Components, or some
other type of preferred status to each of the other Parties,
or Alliance Co when it is formed as well as pricing for the
Alliance Solution.
4.1.7 Terms and conditions for co-marketing of the Alliance Solution
including without limitation, guidelines for acquiring new
business as well as apportioning of sales and profits.
4.1.8 The Parties agree that when the Brand Name has been agreed
upon in writing by the Parties, notwithstanding that the
Agreement has not been executed by the Parties, Oasis may take
action to protect the Parties' rights and the terms contained
in section 4.1.4 will apply to such action.
5. THE BUSINESS RELATIONSHIP
5.1 Notwithstanding the Agreement, any or all of the Parties may: (i) work
together to promote the Alliance Solution on an ad hoc basis and to
jointly pursue marketing and business initiatives and activities in any
specific global market segment, including without limitation, the
financial services, retail, and insurance (the "Market Segments") and
(ii) pursue other co-marketing, teaming, partnering and alliance
agreements with each other.
5.2 Immediately after the Effective Date, the Parties shall commence work
on (i) a business plan, (ii) a marketing plan, (iii) a project plan;
and (iv) a detailed project schedule to determine the viability of a
formal joint venture and ensure Alliance Solution market readiness as
early as possible.
5.3 Each Party will provide at the engineering or technical level at no
charge to the other Parties, technical support as reasonably requested
to accomplish (i) the functional compatibility of all the Alliance
Solution components and (ii) the continued development and upgrading of
each Party's respective components in the Alliance Solution for
improved functionality and the best operational integration of the
Alliance Solution.
5.4 The Parties shall cooperate to produce marketing materials for the
Alliance Solution. Each Party shall have the right to reproduce or
otherwise use the Alliance Solution marketing materials of the other
Parties. Such materials may be used in an individual Party's marketing
or in Alliance-wide marketing and selling activities agreed upon by the
Parties.
5.5 The Parties will work together to obtain new business through their
combined efforts in the areas of (i) pre-sales by responding to
requests for proposal ("RFP") and requests for information ("RFI"), and
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generating proposals and (ii) direct and indirect sales through channel
distribution and third party partners.
5.6 The Parties agree to establish a steering committee for the purpose of
ensuring the success of the Alliance Solution. The steering committee
will recommend the general principles and final form of the Agreement
and make all decisions regarding the business strategy of the Alliance.
Each party shall appoint one senior executive as its steering committee
member. Such senior executive shall be able to provide prompt decisions
on behalf of the party he or she represents. The steering committee
shall meet as mutually agreed either in person or by telephone
conference call not less frequently than twice each month. The steering
committee will agree on (i) a process for making decisions, (ii) a
process for recording the minutes of its meetings and the performance
of other necessary administrative activities and (iii) the creation of
subcommittees e.g. technical and business subcommittees, to address
technical, marketing and sales requirements.
5.7 In order to put forth the best commercially viable effort to ensure
optimal market driven pricing practices, the Parties shall meet on a
quarterly basis as mutually agreed to review and discuss the Alliance
Solution pricing in relation to other competitive market solutions.
5.8 None of the Parties may use the name, logo or intellectual property of
another Party or any affiliate of another Party, without the other
Party's prior written approval.
5.9 This MOU does not create, and shall not be construed to create, any
joint venture or partnership between the Parties. No officer, employee,
agent, servant or independent contractor of any Party shall be at any
time be deemed to be an employee, servant, agent or contractor of any
other Party for any purpose. The Parties are each independent
contractors, not employees, agents or representatives of each other. No
Party has the right to bind any other Party to any agreement except as
may be specifically provided herein.
5.10 The Parties agree that where consents are required, such consents shall
not be either unreasonably delayed or unreasonably withheld.
5.11 Each Party shall be responsible for its own expenses in connection with
this MOU.
5.12 Each Party agrees that the Parties will be under no obligation
whatsoever to enter into further agreements with each other, as a
result of this MOU.
6. TERM AND TERMINATION
6.1 The Parties agree to use reasonable efforts to negotiate and conclude
the Agreement as set out in section 4.1. The terms of the Agreement
will supersede the terms of this MOU.
6.2 The term of this MOU is 90 days from the Effective Date, unless
extended by agreement of the Parties.
6.3 If the Commercial Agreement has not been executed by the parties, upon
expiry of this MOU (i) each Party shall, within 30 days of such expiry,
return any property of another Party in its possession to such other
Party (ii) the Brand Name shall become the property of Oasis and Oasis
shall grant each of the Parties a non-exclusive, world-wide, fully
paid-up license to use the Brand Name, (iii) Articles 7, and 8 and
Section 6.3 will survive such expiry.
7. LIMITATION OF LIABILITY
7.1 EXCEPT FOR A BREACH OF ANY OBLIGATION UNDER ARTICLE 7
(CONFIDENTIALITY); IN NO CIRCUMSTANCES SHALL ANY PARTY BE LIABLE TO
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ANOTHER PARTY OR PARTIES FOR LOSS OF PROFITS, LOSS OF BUSINESS REVENUE,
FAILURE TO REALIZE EXPECTED SAVINGS, OTHER COMMERCIAL OR ECONOMIC LOSS
OF ANY KIND WHATSOEVER, NOR SHALL ANY PARTY BE LIABLE TO ANOTHER PARTY
OR PARTIES FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT INCLUDING IN CONNECTION WITH THE OBLIGATIONS THAT ARE THE
SUBJECT MATTER OF A PROJECT PLAN, EVEN IF ADVISED OF THE POSSIBILITY OF
SAME AND REGARDLESS OF THE CAUSE OF ACTION (INCLUDING BREACH OF
CONTRACT, FUNDAMENTAL BREACH, AND NEGLIGENCE), AND
7.2 EXCEPT FOR PAYMENT OBLIGATIONS SPECIFICALLY PROVIDED FOR HEREUNDER, IN
NO EVENT WILL THE CUMULATIVE LIABILITY OF ANY PARTY UNDER THIS
AGREEMENT EXCEED US$10,000.
8. CONFIDENTIALITY
8.1 In connection with this MOU it may be necessary for a Party to exchange
confidential information ("Confidential Information") with another
Party or the other Parties. All Confidential Information shall be
exchanged under the terms of the separate confidentiality agreement,
which is attached to this MOU as Schedule A.
8.2 Notwithstanding anything contained in this Article, a Party will not
disclose the marketing plans, sales information, confidential product
information, clients or customers of any other Party to third parties
without first obtaining written permission from such other Party, and
shall not make any such disclosure without entering into a suitable
confidentiality agreement with such third party. However, each Party
may discuss and share with customers and prospective customers publicly
available product information and product literature including product
briefs and product manuals belonging to another Party.
9. Representations and Warranties
9.1 Each Party hereby represents and warrants to the other Parties as
follows:
9.1.1 No Breach of other Agreements. The execution, delivery and performance
of this MOU by such Party will not (i) result in the breach of, or
constitute a default (or an event which, with or without notice or
lapse of time or both, would constitute a default) under, any contract
or other instrument or obligation to which such Party is now bound,
(ii) result in the breach of any of the terms or conditions of, or
constitute a default under, the charter, bylaws or other governing
instruments of such Party, or (iii) violate any order, writ,
injunction, decree, or any statute, rule or regulation applicable to
such Party.
9.1.2 Exclusion of Other Warranties. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS
AGREEMENT, ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE; AND THOSE ARISING BY STATUTE OR OTHERWISE IN
LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE ARE ALL EXPRESSLY
DISCLAIMED.
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10. GENERAL
10.1 The Parties understand and agree that this MOU is not meant to address
all issues which may arise in connection with the development and
marketing of the Alliance Solution. The Parties hereby agree to work
together in good faith to negotiate and conclude the Agreement as soon
as possible.
10.2 Nothing in this MOU implies transfer of title, ownership, copyright or
other intellectual property rights from any Party to any other Party or
the Parties.
10.3 Each Party agrees to comply fully with all applicable laws and
government regulations applicable in any country or organization of
nations within whose jurisdiction the Party operates or does business,
including but not limited to, those applicable to the export and
re-export of products.
10.4 This MOU may be executed in counterparts, each of which shall be deemed
an original but all of which shall together constitute one and the same
agreement.
IN WITNESS WHEREOF this MOU and its Schedule A have been executed by the Parties
hereto as if each had been signed separately.
Accepted and agreed to: Accepted and agreed to: Accepted and agreed to:
Xxxxxxxx & Devrient
Cardis B.V. CIT Canada Inc. Systems Canada, Inc.
------------------------ ------------------------------- -----------------------
By: By: By:
------------------------ ------------------------------- -----------------------
Signature Signature Signature
Name: Name: Name:
------------------------ ------------------------------- -----------------------
Type or Print Type or Print Type or Print
Title: Title: Title:
------------------------ ------------------------------- -----------------------
Type or Print Type or Print Type or Print
Date: Date: Date:
------------------------ ------------------------------- -----------------------
Accepted and agreed to: Accepted and agreed to: Accepted and agreed to:
Oasis Technology Ltd. Schimatic Cash Transactions Ingenico
Xxxxxxx.xxx Inc. doing business
as Smart Chip Technology
Technologies Inc.
By: /s/ X.Xxxxxxxxx By: /s/ Xxx Xxxxxxxx By:
------------------------ ------------------------------- -----------------------
Signature Signature Signature
Name: X. Xxxxxxxxx Name: Xxx Xxxxxxxx Name:
------------------------ ------------------------------- -----------------------
Type or Print Type or Print Type or Print
Title: General Counsel Title: President & CEO Title:
------------------------ ------------------------------- -----------------------
Type or Print Type or Print Type or Print
Date: July 4, 2001 Date: 5/1/01 Date:
------------------------ ------------------------------- -----------------------
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ePAYMENT ALLIANCE
MEMORANDUM OF UNDERSTANDING
Schedule A
CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is entered into effective as of the 1st day of March,
2001 by and between each of:
1. CARDIS Enterprises International B.V., with its head office at
Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx ("CARDIS")
2. CIT Canada Inc., a wholly owned subsidiary of Silverline, Inc, with its
head office at 000 Xxxxxx Xxxx Xx. Xxxxx Xxxx, Xxxxxxx Xxxxxx X0X 0X0.
("CIT")
3. Xxxxxxxx & Devrient Systems Canada, Inc, with its office at 000 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0. ("G&D")
4. Oasis Technology Ltd., with its head office at 00 Xxxxxxxx Xxx. Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0. ("Oasis")
5. Schimatic Cash Transactions Xxxxxxx.xxx, Inc. doing business as Smart
Chip Technology Technologies., with its head office at 000 Xxxx 0000
Xxxxx, Xxxx Xxxx Xxxx, XX, XXX 00000. ("SCTN")
6. Ingenico, with its head office at 0, Xxxx Xx Xxxx Xxxxxx, 00000 Xxxxxxx
Xxxxx, Xxxxxx ("Ingenico" )
Each of CARDIS, CIT, G&D, Oasis, SCTN and Ingenico are referred to herein
individually as a "Party" and collectively as the "Parties".
The Parties contemplate entering into one or more discussions relating to, among
other things, an exploration of possible relationships between the Parties.
During the course of such discussions, in order to assist the Parties in
mutually making a decision as to the possibility of one or more types of
relationships between them, each of the Parties wishes to disclose to the other
and receive from the other information relating to the Parties' respective
businesses, their respective present and proposed products, services and systems
and, possibly, their respective know-how, much of which constitutes their
respective confidential and proprietary information.
In consideration of the foregoing and the mutual agreements hereinafter
contained and in order to enable the Parties to proceed with these discussions,
the Parties agree as follows:
I. CONFIDENTIAL INFORMATION
1. (A) Despite any other provision of this agreement, the
following shall constitute a Party's confidential and
proprietary information (the "Confidential
Information"):
(a) all information provided by that Party (the
"Discloser") to the other (the "Recipient") in
tangible form and that is marked prominently as
"confidential" or "proprietary" or that is otherwise
designated as confidential in advance of disclosure;
(b) all information disclosed by the Discloser to the
Recipient, whether orally or in writing, and whether
or not specifically designated as confidential in
advance of disclosure, concerning the Discloser's
business plans or forecasts, financial state or
performance, sales, pricing structures, customers,
prospective customers, projects, prospective
projects, the names and expertise of employees and
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consultants, contractual terms, procurement
requirements, sales and merchandising and marketing
plans, forecasts and strategies, research and
development initiatives, trade secrets or know-how
(including, without limitation, tangible or
intangible code, data, technology, algorithms,
software programs, software source documents,
formulae, inventions--whether patentable or not--and
technical aspects or details of the Discloser's
current, future and proposed services, systems,
techniques and products); and
(c) proprietary and confidential information of the
Discloser's customers, prospective customers,
distributors and persons with whom the Discloser is
involved in a strategic alliance or joint venture
which may be disclosed to the Recipient by the
Discloser; and
(d) any other information that the Discloser wishes to
disclose orally to the Recipient and in respect of
which prior to disclosure the Discloser has informed
the Recipient generally of the nature of such
information and the Recipient has agreed to receive
it in confidence, it being understood and agreed,
however, that the protection afforded by this
agreement to Confidential Information will apply to
the information disclosed in accordance with this
subparagraph (d) for only 30 days following the date
of disclosure unless within such 30 day period the
Discloser delivers to the Recipient a letter
confirming that the Discloser has disclosed and the
Recipient, at the time of such disclosure, has agreed
to receive such information in confidence, stating
generally the nature of the confidential information
disclosed without actually documenting the
information disclosed. For certainty, the limitation
on the protection afforded by this agreement to
Confidential Information disclosed in accordance with
this subparagraph (d) does not apply to information
that is also provided to the Recipient in tangible
form and is of the type referred to in paragraph (a),
above, or to information that is of the type referred
to in paragraphs (b) or (c), above.
(B) Each Party's Confidential Information shall be used
by the other only for the purposes of evaluating the feasibility of one or more
types of potential relationships between the Parties and in connection with such
relationship or relationships if developed.
(C) Each Party receiving Confidential Information acknowledges
the claim of the Party disclosing such Confidential Information to the
intellectual property rights (including, without limitation, any copyrights,
patents and trade secrets) in that Confidential Information ("Intellectual
Property Rights")
2. (A) All Confidential Information of a Party and every Derivative
thereof, whether created by the Discloser or the Recipient, is and remains the
property of the Discloser. For purposes of this agreement, "Derivative" means:
(i) for copyrightable or copyrighted material, any translation, abridgement,
revision or other form in which an existing work may be recast, transformed or
adapted; (ii) for patentable or patented material, any improvement thereon; and
(iii) for material that is protected by trade secret, any new material derived
from such existing trade secret material, including new material which may be
protected by copyright, patent and/or trade secret.
(B) Except to the extent otherwise permitted by paragraph (C)
of this subsection I.2, the Recipient shall not, without the prior written
consent of the Discloser, copy or reproduce or cause or permit to be copied or
reproduced, whether mechanically, electronically, in handwriting, by video,
photographic or audio recording or by data transfer or in any other manner, any
documents, materials or other information constituting, containing or referring
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to Confidential Information furnished or disclosed to the Recipient by the
Discloser or any other person, including, without limitation, any notes which
the Recipient may have taken of conversations or meetings with the Discloser or,
if applicable, the Discloser's representatives or of material provided to the
Recipient by the Discloser or any other person, to the extent that such notes
constitute , contain or refer to Confidential Information of the Discloser (all
such documents, materials, other information and notes referred to as the
"Tangible Material").
(C) Nothing in paragraph (B) of this subsection I.2 will
prevent the Recipient from making such reasonable number of copies of Tangible
Material as are reasonably required by its employees for the purposes referred
to in paragraph I.1(B) hereof, subject to the provisions of subsection I.4 and
on condition that reasonable controls are instituted to keep track of the number
and destination of such copies. All copies of Tangible Material will be treated
in the same manner as original documents constituting, containing or referring
to Confidential Information and will be deemed to be Tangible Material.
(D) The Recipient shall return or deliver to the Discloser
promptly, upon the Discloser's request, all the Discloser's Confidential
Information and every Derivative thereof, including the originals and all copies
of all Tangible Material..
3. Other than as expressly stated herein, this Agreement (a) creates no
rights in the Recipient regarding transfer, purchase, sale or license of
Intellectual Property Rights of the Discloser, employment, co-development or
independent contracting; and (b) permits no use, reproduction, copying,
manufacture, modification, sale, transfer, distribution, reverse engineering or
other attempt to derive source code, of the Confidential Information of the
Discloser, or creation of derivative works therefrom.
4. Each Party acknowledges that disclosure of any of another Party's
Confidential Information either directly or indirectly to any third party
including, without limitation, its clients, the other's existing or potential
competitors or to the general public would be highly detrimental to the other's
business and economic interests. For a period of five (5) years following the
date of disclosure, or with respect to Confidential Information that is a trade
secret (including source code and object code), at all times, (i) the Recipient
shall maintain the Discloser's Confidential Information in confidence and shall
not make any commercial use of it, directly or indirectly, except pursuant to an
agreement in writing between the Discloser and the Recipient, and shall not use
it in any manner whatsoever adverse in interest to the interests of the other,
and (ii) the Recipient shall not disclose any of the Discloser's Confidential
Information to any third party without the express prior written authorization
from the Discloser, which authorization may be unreasonably or arbitrarily
withheld. The Recipient agrees to make its best efforts to maintain the secrecy
of all the Discloser's Confidential Information and to take such precautions to
safeguard such Confidential Information as are commercially reasonable
including, without limitation and as a minimum, the measures, if any, which the
Recipient takes to protect the Recipient's own similar confidential information.
The Recipient may disclose the Discloser's Confidential Information, on a "need
to know" basis, solely for the purposes set out in this agreement, to such of
its employees, agents or independent contractors who have entered into
confidentiality agreements, prior to the disclosure to such of them of the
Discloser's Confidential Information, that would subject the employee, agent or
independent contractor to non-disclosure and confidentiality obligations in
respect of the Discloser's Confidential Information equal to or more stringent
than those contained in this agreement.
The Recipient's obligations of confidentiality hereunder do not extend
to any Confidential Information that the Recipient can demonstrate to the
satisfaction of the Discloser, acting reasonably:
a. was previously known to the Recipient and was not
acquired under any obligation to hold it in
confidence, or
b. was received from a third party who has the right to
disclose it without restriction, or
c. was publicly available at the time of disclosure to
the Recipient, or
d. was approved for public release by written
authorization of the Discloser, but only to the
extent of such authorization, or
e. becomes publicly available through no fault of the
Recipient, or
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f. is or becomes the subject of a patent, in which case
the Discloser shall rely upon its rights pursuant to
such patent, or
g. has been independently developed by the Recipient
without reliance on the Discloser's Confidential
Information, or
h. is required by law or regulation to be disclosed, but
only to the extent and for the purposes of such
required disclosure and on condition that the
Recipient shall first give to the Discloser ten (10)
days notice or, if less notice is given to the
Recipient, as much notice to the Discloser as is
practicable, so that a protective order or other
relief, if appropriate, may be sought.
II. GENERAL
1. The Parties shall make reasonable efforts to limit disclosures of
their own information to information reasonably necessary to accomplish the
purpose of this Agreement, but this provision does not diminish the Parties'
respective obligations of confidentiality.
2. No Party shall make any public disclosure concerning the discussions
they are having with each other or which mentions or refers to another Party or
its trademarks without the prior written consent of the other Party.
3. Subject to the obligations contained herein including, without
limitation, the obligation of confidentiality, nothing in this Agreement shall
restrict the right of a Party to procure or market products or services which
may be competitive with those offered by another Party, nor obligate a Party to
obtain any services from another Party, nor prevent a Party from entering into
similar agreements with other companies or individuals.
4. Each Party warrants to the other that it has the right to disclose
to the other all Confidential Information which it shall disclose and agrees to
indemnify and hold the other harmless against and from all claims, damages and
expenses, including reasonable legal fees, resulting from a wrongful disclosure
which would breach such warranty.
5. It is understood that no Party hereby grants to the other any rights
under existing or future patents or proprietary information.
6. It is understood that there is no obligation on the part of any
Party to enter into an agreement with any other Party or any third party for the
provision of services or products.
7. This Agreement shall benefit and bind the Parties and their
respective successors.
8. This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter hereof. No modification or variation of the
Agreement will be considered valid unless it is made in writing, is clearly
expressed to be a modification hereto or variation hereof and is executed by the
Parties in the same manner as this Agreement. No provision of this Agreement
shall be waived except in writing and no waiver of a provision shall operate as
a waiver of any other provision or of the same provision on a future occasion.
If any provision hereof is held invalid, the balance will remain effective, and
to the extent feasible the offending provision will be restated to give effect
to its stated intent.
9. THE DISCLOSER'S CONFIDENTIAL INFORMATION IS PROVIDED TO THE
RECIPIENT "AS IS," WITH NO EXPRESS OR IMPLIED CONDITION OR WARRANTY WHATSOEVER,
INCLUDING WITHOUT LIMITATION ANY CONDITION OR WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR OF UNINTERRUPTED OR ERROR-FREE OPERATION.
The foregoing provision is without prejudice to the respective rights and
obligations of the Parties under any subsequent written agreement into which
they may enter and the warranties and conditions, if any, that may be expressly
contained therein; except to the extent specifically provided in any such
subsequent written agreement, the Discloser is not responsible for the results
of any reliance by the Recipient upon the Discloser's Confidential Information.
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10. Each Party acknowledges that the Discloser may be irreparably
injured by a breach of the provisions of this Agreement and that the Discloser
may apply to a court of competent jurisdiction for equitable relief, including
injunctive relief and specific performance, in the event of any breach of the
provisions of this Agreement. Such remedies shall not be deemed to be the
exclusive remedies in the event of a breach, but shall be in addition to all
other remedies at law or equity. No failure or delay by a Party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof or the exercise of any right, power
or privilege hereunder constitute a waiver.
11. The Parties agree that this Agreement shall be governed by and
interpreted in accordance with the law of Ontario (excluding its choice of law
rules) and that any action in any way arising out of this Agreement shall be
commenced in an appropriate court having jurisdiction in Ontario. The prevailing
Party in any suit hereunder shall recover all related costs, expenses and
reasonable legal fees.
12. A signed copy of this Agreement may be validly delivered by
telecopier; if a signed copy is transmitted by telecopier, the copy received by
telecopier will be deemed to be an executed original, the Party delivering by
telecopier hereby undertaking and agreeing to deliver promptly the original
signed copy by mail or courier.
* * * END * * *
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