EXHIBIT 10.8
TRADE SECRET LICENSE AGREEMENT
THIS TRADE SECRET LICENSE AGREEMENT (the "Agreement") is dated
as of April 27, 2001 (the "Effective Date"), and is by and between PaySys
International, Inc., a Florida corporation, and Delos Payment Systems, Inc., a
Delaware corporation.
WHEREAS, pursuant to that certain Contribution Agreement,
dated as of April 27, 2001, between PaySys and Delos (the "Contribution
Agreement"), PaySys transferred and assigned to Delos inter alia, all of its
right, title and interest in and to those certain computer software programs and
related materials generally known as the "dBB Software" as defined therein;
WHEREAS, in connection with the Contribution Agreement, PaySys
agreed to enter into this Agreement to xxxxx Xxxxx certain limited rights to use
the VisionPlus Trade Secrets as set forth herein.
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS. In this Agreement, the following terms have the meanings
specified or referred to in this Section 1 and shall be equally
applicable to both the singular and plural forms. In this Agreement,
the words "including", "include" and "includes" shall each be deemed to
be followed by the term "without limitation". Any agreement, schedule,
attachment or exhibit referred to herein shall mean such agreement,
schedule, attachment or exhibit as amended, restated, supplemented and
modified from time to time to the extent permitted by the applicable
provisions thereof and by this Agreement. References to any statute or
regulation means such statute or regulation as amended from time to
time and includes any successor statute or regulation. Unless otherwise
stated, references to recitals, articles, sections, paragraphs,
schedules and exhibits shall be references to recitals, articles,
sections, paragraphs, schedules and exhibits of this Agreement.
(a) "AAA" has the meaning set forth in Section 2(a) of Schedule 12(a).
(b) "AFFILIATE" shall mean an entity (including any joint venture or
alliance) that, directly or indirectly, owns or controls, is owned or
is controlled by or is under common ownership or control with another
entity (including any joint venture or alliance). For purposes hereof,
an entity, shall be deemed to "own or control" another entity if and
for so long as it beneficially owns fifty percent (50%) or more of the
voting equity securities or other equivalent voting interests of the
other entity.
(c) "AGREEMENT" has the meaning set forth in the first paragraph.
(d) "ARBITRATION DEMAND" has the meaning set forth in Section 2(b) of
Schedule 12(a).
(e) "ARBITRATION PANEL" has the meaning set forth in Section 2(d) of
Schedule 12(a).
(f) "BASIC QUALIFICATIONS" has the meaning set forth in Section 2(b) of
Schedule 12(a).
(g) "CONTRIBUTION AGREEMENT" has the meaning set forth in the first
recital.
(h) "DBB PLATFORM" shall mean all versions of that certain computer program
commonly known as the "dBB Platform", both in source code format in C++
programming language, and as compiled into executable code format,
(along with the integrated development environment, the system DSLs,
DSLs and development tools and related documentation).
(i) "DBB SYSTEM" shall mean the dBB Platform and all Intellectual Property
embodied therein or relating thereto.
(j) "DELOS" shall mean Delos Payment Systems, Inc., a Delaware corporation,
and its permitted successors and permitted assigns.
(k) "DISPUTE" shall mean any and all disputes, controversies and claims
between the parties arising from or in connection with this Agreement
or the relationship of the parties under this Agreement whether based
on contract, tort, common law, equity, statute, regulation, order or
otherwise.
(l) "DISPUTING PARTY" has the meaning set forth in Section 2(a) of Schedule
12(a).
(m) "DSL" shall mean dBB serial language.
(n) "EFFECTIVE DATE" has the meaning set forth in the first paragraph.
(o) "INDEMNIFIED PARTIES" has the meaning set forth in Section 8(b)(i).
(p) "INDEMNIFIED PARTY" has the meaning set forth in Section 8(b)(i).
(q) "INFRINGEMENT CLAIM" has the meaning set forth in Section 8(a)(i).
(r) "INTELLECTUAL PROPERTY" shall mean any: (i) trademarks, trade names,
service marks, domain names, trade dress, logos and other similar
designations; (ii) copyrights and copyrightable works; (iii) patents,
patent rights, patent applications, inventions and trade secrets; and
(iv) other protectable property rights.
(s) "LICENSE AGREEMENT TERMS" has the meaning set forth in Section
2(a)(ii).
(t) "PAYSYS" shall mean PaySys International, Inc., a Florida corporation,
and its permitted successors and permitted assigns.
(u) "PERSON" shall mean an individual, corporation, limited liability
company, partnership, sole proprietorship, joint venture, or other form
of organization or governmental agency or authority.
(v) "SUBLICENSEE" has the meaning specified in Section 2(a)(ii).
(w) "VISIONPLUS TRADE SECRETS" means those trade secrets owned by PaySys
that are embodied in the CMS (credit management system), FAS (financial
authorization system)
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and/or ITS (interchange tracking system) modules of that certain
software known as VisionPLUS, version 2.50.
2. PAYSYS LICENSE GRANT.
(a) Subject to the terms and conditions of this Agreement, PaySys hereby
grants to Delos a royalty-free, non-exclusive, non-transferable (except
as set forth in this Agreement), worldwide, perpetual, irrevocable
(subject to Section 11) limited license to:
(i) use the VisionPlus Trade Secrets solely in connection with and
embodied within the dBB Platform and applications developed
through the use of the dBB Platform, and to create or have
created modifications, enhancements, updates and derivative
works of the dBB Platform and such applications and use the
same in accordance with the limitations provided in this
Section 2;
(ii) permit third Person licensees and their respective
sublicensees (each a "Sublicensee") to use the dBB Platform
and/or applications developed through the use of the dBB
Platform and to create or have created modifications,
enhancements, updates and derivative works of the dBB Platform
and such applications, and use the same for any purpose
whatsoever, provided that: (A) Delos executes an agreement
with each such Sublicensee that contains terms consistent with
the terms set forth on Schedule 2(a)(ii) (the "License
Agreement Terms"); (B) neither Delos nor any Delos Affiliate
may license or sublicense to a Sublicensee the VisionPlus
Trade Secrets; and (C) the rights granted to any Sublicensee
by Delos and/or any Delos Affiliate pursuant to this Section
2(a)(ii) shall not violate the restrictive covenants contained
in Section 4 of that certain Software License Agreement, dated
as of April 27, 2001, between PaySys and Delos;
(iii) sublicense to any Affiliate of Delos the rights granted in
Sections 2(a)(i) and 2(a)(ii), provided that Delos has
delivered to PaySys a writing executed by an authorized
representative of such Affiliate to abide by the terms of this
Agreement as if such Affiliate was an original party to this
Agreement.
(b) All rights not specifically granted herein are reserved by PaySys.
3. PROPRIETARY RIGHTS LEGENDS. Delos shall reproduce on all copies of the
dBB Platform and all modifications, enhancements, updates and
derivative works thereto that Delos creates or has created, the
proprietary rights legends set forth on Schedule 3 in the manner set
forth therein. In addition, Delos shall replace or otherwise modify
such legends as reasonably requested by PaySys on all future copies of
the dBB Platform and all modifications, enhancements, updates and
derivative works thereto that Delos creates or has created. Subject to
the foregoing, Delos and its Affiliates may modify the documentation
and screen displays of the dBB Platform, any portion thereof and any
and modifications, enhancements, updates and derivative works thereto
to conform them to the product branding, display and documentation
standards of Delos and its Affiliates, including to identify Delos
and/or its Affiliates as the service and software provider of the
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dBB Platform and all modifications, enhancements, updates and
derivative works thereto.
4. PROPRIETARY RIGHTS.
(a) By PaySys. As between Delos and its Affiliates and PaySys, PaySys owns
own all right, title and interest in and to each of the VisionPlus
Trade Secrets.
(b) By Delos. Subject to Section 4(a), as between Delos and PaySys and its
Affiliates, and subject to the licenses granted herein, Delos shall own
all right, title and interest, including any Intellectual Property
rights, in and to the dBB System, any applications developed by Delos
and any Delos Affiliate through the use of the dBB Platform, and to any
modifications, enhancements, updates or derivative works that Delos or
its Affiliates create to the dBB System or such applications using the
VisionPlus Trade Secrets.
5. TAXES. The license granted herein is exclusive of any federal, state,
or local excise, sales, use and similar taxes assessed or imposed with
respect to the transactions set forth herein. Delos shall be
responsible for all such taxes assessed or levied upon PaySys with
respect to such transactions. Delos shall pay any such amounts upon
request of PaySys accompanied by evidence of imposition of such taxes.
Notwithstanding the foregoing, in no event shall Delos be liable for
taxes relating to PaySys' income. Delos shall not be responsible for
payment of any interest or penalties in connection with the payment of
any such taxes not caused by Delos, and Delos may protest the validity
or amount of any such tax.
6. LIMITED REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.
(a) By Each Party. Each party represents and warrants to the other as
follows:
(i) Organization, Corporate Power, Etc. Each party: (A) is duly
organized, validly existing and in good standing under the
laws of the state in which it is incorporated; (B) has the
requisite corporate or other power and authority to carry on
its business as it is now being conducted; and (C) is duly
licensed or qualified to do business in each jurisdiction in
which the nature of the business conducted by it makes such
licensing or qualification necessary.
(ii) Authority of Parties. Each party has full power and authority
to execute, deliver and perform this Agreement. The execution,
delivery and performance of this Agreement has been duly
authorized and approved by all necessary corporate or other
authorities and does not require any further authorization or
consent.
(iii) No Litigation. To each party's respective knowledge, there are
no lawsuits, claims, suits, proceedings or investigations
pending or threatened against it that questions the legality
or propriety of the transactions contemplated by this
Agreement.
(iv) Consents and Approvals. No consent, approval, authorization,
action or order of, or declaration, filing or registration
with, or notice to, any court, administrative agency,
governmental body or other third party is required to be made
or obtained
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by a party in connection with the execution and delivery of
this Agreement, the consummation of the transactions
contemplated by it, or the performance of its obligations
under it.
(v) Noncontravention. The execution, delivery and performance by
each party of this Agreement will not conflict with,
constitute a breach of, or default under, or violate any
provision of any agreement, indenture, note, or other
instrument to which such party is a party or by which such
party is or may be bound or to which any of such party's
property or assets is subject, or any statute, law, rule,
regulation, ruling, judgment, injunction, order or decree
applicable to such party or to any property or assets of such
party.
(b) DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, NEITHER
PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, NATURE OR
DESCRIPTION, EITHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE
VISIONPLUS TRADE SECRETS, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND EACH PARTY
HEREBY DISCLAIMS THE SAME.
7. LIABILITY LIMITATIONS; DISCLAIMER OF DAMAGES.
(a) Liability Limitation. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO
THE CONTRARY, EXCEPT FOR LIABILITY ARISING PURSUANT TO SECTIONS 8 AND
9, THE CUMULATIVE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE
LESSER OF: (i) FIVE MILLION DOLLARS ($5,000,000); OR (ii) THE ACTUAL
DIRECT DAMAGES SUFFERED BY THE OTHER PARTY AND ITS AFFILIATES.
(b) Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, EXCEPT FOR LIABILITY ARISING PURSUANT TO A BREACH OF DELOS'
OBLIGATIONS SET FORTH IN SECTION 9 OR DAMAGES AWARDED TO A THIRD
PERSON PURSUANT TO INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION
8(b), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE
LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR
OTHER LEGAL THEORY FOR ANY LOST PROFITS, LOSS OF DATA, EXEMPLARY,
PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES,
EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES,
REGARDLESS OF WHETHER EITHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
(c) Allocation of Risk. THE FOREGOING REPRESENTS AN EXPRESS ALLOCATION OF
RISK. EACH PARTY ACKNOWLEDGES THAT EACH PARTY HAS ENTERED INTO THIS
AGREEMENT IN RELIANCE UPON THE DISCLAIMERS SET FORTH
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IN THIS AGREEMENT AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE
BENEFIT OF THE BARGAIN BETWEEN THE PARTIES.
8. INTELLECTUAL PROPERTY INFRINGEMENT ISSUES; INDEMNIFICATION.
(a) Notice of Infringement Claims.
(i) If any civil, criminal, administrative or investigative action
or proceeding of any nature involving any claim of
infringement, misappropriation or violation of any patent,
copyright, trademark, trade secret, confidential information
or other intellectual property right relating to any of the
VisionPlus Trade Secrets or any portion thereof ("Infringement
Claim") is threatened or commenced by any third Person against
Delos, any Delos Affiliate or any Sublicensee with respect to
the use or possession of any of the VisionPlus Trade Secrets
or any portion thereof, Delos shall notify PaySys of the same
as promptly as practicable. After such notice, PaySys shall be
entitled, if it so elects in writing within ten (10) days
after PaySys' receipt of such notice, to control the defense,
investigation, settlement and compromise of such Infringement
Claim and to employ and engage attorneys of its choice to
handle and defend the same, at PaySys' sole cost and expense.
Delos, its Affiliates and any Sublicensee, as applicable,
shall cooperate in all reasonable respects with PaySys and its
attorneys in the investigation, trial, defense, settlement and
compromise of such Infringement Claim and any appeal arising
therefrom. Delos, its Affiliates and any Sublicensee, as
applicable, shall have the right to employ and engage separate
counsel and participate in the defense, investigation,
settlement and compromise of such Infringement Claim and to
consult with PaySys' counsel (it being agreed that PaySys
shall retain control of such defense, investigation,
settlement and compromise) but the fees and expenses of such
counsel shall be at Delos' sole cost and expense.
(ii) If PaySys does not assume full control over the defense,
investigation, settlement and compromise of any such
Infringement Claim, then PaySys may participate in such
defense, investigation, settlement and compromise at its sole
cost and expense, and Delos, its Affiliate or Sublicensee, as
applicable, shall defend, settle or compromise such
Infringement Claim in such manner as it may deem appropriate,
at the cost and expense of Delos, its Affiliate or
Sublicensee, as applicable; provided that Delos, its Affiliate
or any Sublicensee, as applicable, shall not settle or
compromise an Infringement Claim that involves a remedy other
than the payment of money by Delos or any Sublicensee, as
applicable, without the prior written consent of PaySys (which
consent shall not be unreasonably withheld or delayed),
including, any settlement or compromise involving any
admission, finding or the like relating to any of the
VisionPlus Trade Secrets, without the prior written consent of
PaySys.
(b) Indemnification by Delos.
(i) Notwithstanding the provisions of Section 8(a), if any civil,
criminal, administrative or investigative action or proceeding
of the nature of an
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Infringement Claim is threatened or commenced by any third
Person against PaySys, its Affiliates and their respective
directors, officers, employees and agents (each an
"Indemnified Party," and collectively, "Indemnified Parties")
with respect to the use by Delos, any Delos Affiliate or any
Sublicensee, of any of the VisionPlus Trade Secrets or any
portion thereof, either during the Agreement term, or after
the termination of this Agreement, should Delos or any Delos
Affiliate continue to use any of the VisionPlus Trade Secrets
or any portion thereof in accordance with Section 11(e)(iv)
after such termination, then notice thereof shall be given to
Delos as promptly as practicable; provided, however, that any
delay by an Indemnified Party in giving such notice shall not
constitute a breach of this Agreement and shall not excuse
Delos' obligations under this Section 8(b) except to the
extent, if any, that Delos is prejudiced by such delay. Within
ten (10) days after such notice, Delos shall assume full
control over the defense, investigation, settlement and
compromise of any such Infringement Claim and shall employ and
engage attorneys of its choice reasonably acceptable to PaySys
to handle and defend the same, at Delos' sole cost and
expense. The Indemnified Party shall cooperate in all
reasonable respects with Delos and its attorneys in the
investigation, trial and defense of such Infringement Claim
and any appeal arising therefrom; provided however, that the
Indemnified Party or PaySys may, at its own cost and expense,
participate through its attorneys or otherwise, in such
investigation, trial, defense and settlement of such
Infringement Claim and any appeal arising therefrom. Delos
shall not settle or compromise any such Infringement Claim
that involves a remedy other than the payment of money without
the prior written consent of PaySys (which consent shall not
be unreasonably withheld or delayed), including, any
settlement or compromise involving any admission, finding or
the like relating to any of the VisionPlus Trade Secrets.
(ii) If Delos does not assume full control over the defense of an
Infringement Claim pursuant to Section 8(b)(i), then Delos may
participate in such defense, compromise, settlement and
investigation at its sole cost and expense, and the
Indemnified Party shall have the right to defend, settle or
compromise such Infringement Claim in such manner as it may
deem appropriate, at the sole cost and expense of Delos.
9. CONFIDENTIALITY.
(a) Obligations. Except as expressly authorized herein or by prior written
consent of PaySys, Delos shall:
(i) limit access to the VisionPlus Trade Secrets received by it to
its employees, agents, representatives, and consultants who
have a need-to-know in connection with this Agreement and
Delos' obligations hereunder, and who are under written or
ethical obligations to maintain the confidentiality of Delos
confidential information, including the VisionPlus Trade
Secrets, which, in accordance with Section 9(a)(ii), are to be
treated as Delos' confidential information;
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(ii) advise its employees, agents, representatives and consultants
having access to the VisionPlus Trade Secrets of the
proprietary nature thereof and of the obligations set forth in
this Agreement and that such VisionPlus Trade Secrets are to
be treated as Delos' confidential information;
(iii) not disclose the VisionPlus Trade Secrets received by it to
third Persons;
(iv) use the VisionPlus Trade Secrets only for the performance of
Delos' obligations and the exercise of Delos' rights under
this Agreement;
Delos shall be responsible for any unauthorized use or disclosure of
the VisionPlus Trade Secrets by Delos, its Affiliates, and their
respective employees, agents, representatives and consultants.
(b) Exceptions to Confidentiality. Notwithstanding the foregoing Section
9(a), Delos' obligations under Section 9(a) shall not apply to any of
the VisionPlus Trade Secrets that Delos can demonstrate:
(i) was, at the time of disclosure to it, in the public domain;
(ii) after disclosure to it, is published or otherwise becomes part
of the public domain through no fault of Delos;
(iii) was received after disclosure to it from a third Person who
had a lawful right to disclose any of the VisionPlus Trade
Secrets to it;
(iv) was required to be disclosed to any regulatory body having
jurisdiction over Delos, its Affiliates and/or their
respective clients, provided that Delos, its Affiliates,
and/or their respective clients shall use reasonable efforts
to provide PaySys with prior notice thereof so that PaySys may
seek a protective order or other appropriate remedy to prevent
such disclosure, and if such protective order or other remedy
is not obtained prior to the time such disclosure is required,
Delos, its Affiliates, and/or their respective clients shall
only disclose that portion of the VisionPlus Trade Secrets
which such party or parties is legally required to disclose;
or
(v) that disclosure is necessary by reason of legal, accounting or
regulatory requirements beyond Delos' reasonable control,
provided that Delos shall use all reasonable efforts to
provide PaySys with prior notice thereof so that PaySys may
seek a protective order or other appropriate remedy to prevent
such disclosure, and if such protective order or other remedy
is not obtained prior to the time such disclosure is required,
Delos shall only disclose that portion of the VisionPlus Trade
Secrets which it is legally required to disclose.
10. COVENANT NOT TO SOLICIT EMPLOYEES.
(a) Without the consent of PaySys, for a period of one (1) year following
the Effective Date, Delos shall not induce or persuade any employee of
PaySys or any of its Affiliates to
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terminate such employment relationship to enter into any employment,
independent contractor or other business relationship with Delos or any
of its Affiliates. The covenant contained in this Section 10(a) shall
not apply to solicitations of a general nature or if any such employee
approaches Delos with respect to any of the foregoing opportunities,
provided, however, that if Delos or any of its Affiliates shall enter
into any employment, independent contractor or other business
relationship with (i) any independent contractor who provided services
to PaySys or any of its Affiliates, or (ii) any employee of PaySys or
any of its Affiliates in accordance with the preceding sentence, Delos
or its Affiliate, as applicable, shall execute an agreement with each
such former employee or independent contractor substantially in the
form attached hereto in Schedule 10(a). Upon request by PaySys to
Xxxxx, Xxxxx and its Affiliates, as applicable, shall provide PaySys
with copies of each such agreement executed by each such independent
contractor or former employee of PaySys or its Affiliates.
(b) Without the consent of Delos, for a period of one (1) year following
the Effective Date, PaySys shall not induce or persuade any employee of
Delos or any of its Affiliates to terminate such employment
relationship to enter into any employment, independent contractor or
other business relationship with PaySys or any of its Affiliates. The
covenant contained in this Section 10(b) shall not apply to
solicitations of a general nature or if any such employee approaches
PaySys with respect to any of the foregoing opportunities.
11. TERM; DEFAULT AND TERMINATION.
(a) Term. This Agreement shall be effective as of the Effective Date and
shall continue unless terminated as set forth herein.
(b) Except as set forth in Section 11(c), if PaySys, Delos or any Delos
Affiliate fails to remedy within thirty (30) days after notice thereof
a failure to perform any obligation imposed pursuant to this Agreement
or comply with any restriction or other provision contained in this
Agreement, the notifying party may resolve the same as set forth in
Section 12.
(c) If a party shall fail to pay when due any amounts due pursuant to this
Agreement after one hundred eighty (180) days after notice thereof by
the other party, such other party may terminate this Agreement after
such one hundred eighty (180) day period unless such amounts are paid
within such one hundred eighty (180) day period.
(d) PaySys may terminate this Agreement upon ninety (90) days notice to
Delos if any third Person obtains a judgement or injunction against
PaySys or any other Person with respect to the continued use or
possession of any of the VisionPlus Trade Secrets.
(e) If PaySys terminates this Agreement pursuant to Sections 11(c) or
11(d):
(i) the rights and licenses granted herein shall terminate;
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(ii) Delos and its Affiliates shall promptly cease use of the
VisionPlus Trade Secrets and PaySys Confidential Information
and certify to PaySys the compliance with the foregoing;
(iii) the following provisions shall survive the termination of this
Agreement by PaySys pursuant to Sections 11(c) or 11(d) for
any reason: Sections 4, 5, 6(b), 7, 8, 9, 10(a), 11(e), 12 and
14; and
(iv) notwithstanding any termination of this Agreement pursuant to
Section 11(d), Delos and its Affiliates may continue to use
the VisionPlus Trade Secrets solely for the purpose, and
solely to the extent necessary for, continued support of
Sublicensees who are not Delos or Delos Affiliates.
(f) If Delos terminates this Agreement pursuant to Section 11(c):
(i) the rights and licenses granted herein shall continue;
(ii) the following provisions shall survive the termination of this
Agreement by Delos pursuant to Section 11(c) for any reason:
Sections 2, 3 4, 5, 6(b), 7, 8, 9, 10(b), 11(f), 12, 13 and
14.
12. DISPUTE RESOLUTION.
(a) Subject to Section 12(b), any and all Disputes shall be resolved as
provided in Schedule 12(a).
(b) Notwithstanding anything to the contrary set forth herein, no party
shall be required to submit any dispute or disagreement regarding the
interpretation of any provision of this Agreement, the performance by a
party of such party's obligations under this Agreement or a default
hereunder to the mechanisms set forth in Section 12(a), if such
submission seeks solely equitable relief from irreparable harm.
(c) THE PARTIES CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE STATE OF FLORIDA AND OF ANY FLORIDA STATE
COURT SITTING IN FLORIDA FOR ALL LITIGATION THAT MAY BE BROUGHT WITH
RESPECT TO THE TERMS OF, AND THE TRANSACTIONS AND RELATIONSHIPS
CONTEMPLATED BY, THIS AGREEMENT. THE PARTIES FURTHER CONSENT TO THE
JURISDICTION OF ANY STATE COURT LOCATED WITHIN A DISTRICT THAT
ENCOMPASSES ASSETS OF A PARTY AGAINST WHICH A JUDGMENT HAS BEEN
RENDERED, EITHER THROUGH ARBITRATION OR THROUGH LITIGATION, FOR THE
ENFORCEMENT OF SUCH JUDGMENT AGAINST THE ASSETS OF SUCH PARTY.
13. RIGHTS IN BANKRUPTCY. PaySys agrees that if PaySys as a
debtor-in-possession or a trustee in bankruptcy rejects this Agreement,
Delos may elect to retain its rights under this Agreement as provided
in Section 365(n) of the Bankruptcy Code. To the extent permitted by
Section 365(n) of the Bankruptcy Code, upon request of Delos to PaySys
or
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the trustee in bankruptcy, PaySys or such trustee shall allow Delos to
exercise its rights under this Agreement and shall not interfere with
the rights of Delos as provided in this Agreement, provided that Delos
continues to comply with the provisions of this Agreement.
14. MISCELLANEOUS.
(a) Assignment; Transfer. Except as provided herein, neither party may
assign or transfer this Agreement and any such attempted assignment or
transfer shall be void. Either party may: (i) transfer this Agreement
in connection with any merger or consolidation of such party with
another Person, provided that such party furnishes the other party with
notice of such transfer within ten (10) business days after the
announcement of the same; or (ii) in connection with the sale of
substantially all of the party's assets (including the rights of a
party under this Agreement), provided that (A) the assignee thereof
shall assume all of such party's obligations hereunder, and (B) the
party furnishes the other party with notice of the closing of such
assignment and assumption within ten (10) business days after the same.
Subject to the foregoing, all provisions contained in this Agreement
shall extend to and be binding upon the parties hereto and their
respective permitted successors and permitted assigns.
(b) Waiver. No failure or delay on the part of any party to exercise any
right or remedy hereunder shall operate as a waiver thereof, nor shall
a single or partial exercise by any party of any right or remedy
preclude any further exercise thereof or the exercise of any other
right or remedy. No express waiver or assent by a party to any breach
of or default in a term or condition of this Agreement shall constitute
a waiver of or assent to any other breach of or default in the same or
any other term or condition hereof.
(c) Independent Contractors. The Parties acknowledge that the relationship
between Delos and PaySys is that of licensor and licensee and nothing
contained in this Agreement shall be construed to place either party in
the relationship of principal and agent, master and servant, partners
or joint venturers with the other party or its Affiliates. Neither
party shall have, expressly or by implication, or represent itself as
having any authority to make contracts or enter into any agreement in
the name of the other parties, or to obligate or bind the other party
in any manner whatsoever.
(d) Entire Agreement. This Agreement and its Schedules supersedes all prior
discussions, understandings and agreements between the parties with
respect to the matters contained herein, and contains the sole and
entire agreement between the parties with respect to the transactions
contemplated herein. This Agreement may not be amended or modified
except by another agreement in writing executed by the parties hereto.
(e) Governing Law. The validity and effect of this Agreement shall be
governed by the laws of the State of Florida, without regard to its
rules regarding conflicts of law.
(f) Force Majeure. No party shall be liable for any default or delay in the
performance of its obligations (other than payment obligations, if any)
under this Agreement if and to the extent such default or delay is
caused, directly or indirectly, by: (i) fire, flood, elements
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of nature or other acts of God; (ii) any outbreak or escalation of
hostilities, war, riots or civil disorders in any country; (iii) any
act or omission of the other party or any governmental authority; or
(iv) any labor disputes (whether or not the employees' demands are
reasonable or within the party's power to satisfy). In any such event,
the non-performing party shall be excused from any further performance
or observance of the obligation so affected only for as long as such
circumstances prevail and such party continues to use commercially
reasonable efforts to recommence performance or observance as soon as
practicable.
(g) No Third-Party Beneficiaries. Nothing contained in this Agreement is
intended to confer upon any party (other than the parties hereto and
Affiliates of either party) any rights, benefits or remedies of any
kind or character whatsoever, and no party shall be deemed a
third-party beneficiary under or by reason of this Agreement.
(h) Consent. If either party requires the consent or approval of the other
party for the taking of, or omitting to take, any action under this
Agreement, except as expressly set forth in this Agreement, such
consent or approval shall not be unreasonably withheld or delayed.
(i) Severability. If any provision of this Agreement or the application of
any such provision to any party or circumstance, shall be declared
judicially to be invalid, unenforceable or void, such decision shall
not have the effect of invalidating or voiding the remainder of this
Agreement, it being the intent and agreement of the parties that this
Agreement shall be deemed amended by modifying such provision to the
extent necessary to render it valid, legal and enforceable while
preserving its intent or, if such modification is not possible, by
substituting therefor another provision that is valid, legal and
enforceable so as to materially effectuate the parties' intent.
(j) Notices. Any notices, requests, demands, certifications and other
communications required or permitted under this Agreement shall be in
writing and shall be sufficiently given if delivered in person or if
mailed by registered or certified mail, postage prepaid, to the parties
at the addresses specified in this Section 14(j), or if transmitted by
facsimile to the fax number specified below and confirmed by the
recipient by facsimile. A party may change the address or fax number to
which notices are to be sent by giving notice to the other party in the
manner provided herein. Notices sent by mail shall be deemed delivered
when received. Notices transmitted by confirmed facsimile shall be
deemed delivered on the date of transmittal.
If to PaySys: If to Delos:
First Data Corporation Delos Payment Systems, Inc.
0000 Xxx Xxxxxxxxx Xxxxx Xxx Xxxx Xxx
Xxxxx 0000 Xxxxxxxx, XX 00000
Xxxxxxx, XX 00000-0000 Attn: President
Attn: General Counsel Telecopy: (000) 000-0000
Telecopy: (000) 000-0000
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With a copy to: With a copy to:
Sidley & Austin Xxxxxxxxxx Xxxxxxxx LLP
Bank Xxx Xxxxx Xxxxx 0000
00 X. Xxxxxxxx Xx. 0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000-0000
Attention: Xxxxxxxxx X. Xxxxxxxx Attn: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
(k) Export. Delos shall not export or re-export any of the VisionPlus Trade
Secrets without appropriate United States and/or foreign government
licenses, and Delos shall comply, and shall ensure that its
sublicensees comply with all applicable export and import laws and
regulations with respect thereto.
(l) Headings. Headings as to the contents of particular sections are
inserted only for convenience and shall not be construed a part of this
Agreement or as a limitation on the scope of any of the terms or
provisions of this Agreement.
(m) No Interpretation Against Drafter. Both parties have participated
substantially in the negotiation and drafting of this Agreement and
each party hereby disclaims any defense or assertion in any litigation
or arbitration that any ambiguity herein should be construed against
the draftsman.
(n) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be executed by their duly authorized officers as of the Effective Date.
DELOS PAYMENT SYSTEMS, INC. PAYSYS INTERNATIONAL, INC.
By: By:
-------------------------------- ---------------------------------
Name: Name:
------------------------------ -------------------------------
Title: Title:
----------------------------- ------------------------------
NOTE: SCHEDULES TO THIS EXHIBIT ARE NOT FILED HEREWITH. THE
REGISTRANT AGREES TO FILE THE SCHEDULES SUPPLEMENTALLY UPON
REQUEST OF THE SECURITIES AND EXCHANGE COMMISSION.
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