EXHIBIT 10.16
PURCHASE, DEVELOPMENT, AND DEPLOYMENT AGREEMENT
THIS PURCHASE, DEVELOPMENT, AND DEPLOYMENT AGREEMENT ("Agreement") is
entered as of October ____, 2000 ("Effective Date") between BIZ Interactive
Zone, Inc. ("BIZ"), a Delaware corporation located at 0000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxxxxx, XX 00000, and Wave Systems Corporation ("Wave"), a Delaware
corporation located at 000 Xxxxxxxx Xxxxxx, Xxx, XX 00000.
RECITALS
WHEREAS, Wave is in the business of the design, development,
manufacture, and sale of technologies and services to secure and sell digital
content;
WHEREAS, BIZ desires Wave to develop an Embassy-Enabled Product that
adapts the Embassy Chip Technology and other aspects of the Wave System to
operate as an embedded, secure, and open platform for trusted access to digital
cable set-top box and cable and telecommunications gateway environments;
WHEREAS, BIZ desires to retain Wave to develop Applets that facilitate
content preparation, licensed metering, digital rights management, data security
technology and other intellectual or financial electronic transaction management
for use in the health care and education markets;
WHEREAS, BIZ desires to retain Wave to develop SSP Applications that
facilitate content preparation, licensed metering, digital rights management,
data security technology and other intellectual or financial electronic
transaction management for use in the health care and education markets;
WHEREAS, BIZ currently sells its own brand of products ("SSP
Products") and desires to resell SSP Products that contain the Wave Chip
Technology, Wave Local Software and Embassy Applets on a value-added and branded
label basis.
NOW, THEREFORE, in consideration of the mutual promises contained
herein the parties agree as follows:
1. DEFINITIONS.
"AGREEMENT" means this agreement.
"APPLETS OR EMBASSY APPLETS" means specialized software executables that perform
various functions and are loaded from outside the Embassy-Enabled Product into
an Embassy Chip.
"APPLET CERTIFICATION AUTHORITY" means the company authorized by Wave to receive
Embassy Applets from developers, certify the ownership and business relationship
of such applets and then encrypt and digitally sign such applets using
authorized codes.
"BIZ/WAVE AGREEMENT" means the Technology Licensing and Authorization Agreement
executed on August 18, 2000 by and between BIZ and Wave and a copy of which is
attached hereto as Exhibit A.
"CONFIDENTIAL INFORMATION" means all nonpublic information of either party, in
written, oral, graphic, or computer database form concerning technology,
marketing plans, implementation strategies, sales and forecast information,
financial data, future products, and other sensitive trade secret information,
provided that if in written form such information must be marked "Confidential"
or if disclosed orally must be identified as Confidential Information at the
time of disclosure and confirmed in writing as confidential within 30 days after
such oral disclosure. Notwithstanding the foregoing, any oral or written
information provided to either receiving party concerning the details and
requirements under this Agreement and its described technology
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shall be considered Confidential Information, regardless of whether such
information is marked or confirmed as confidential. Except for information
concerning the Embassy Chip Technology, Confidential Information does not
include information which: (a) the receiving party can prove it already knew at
the time of receipt from the disclosing party; (b) has come into the public
domain without breach of confidence by the receiving party; or (c) was received
from a third party without restrictions on its use; (d) the receiving party can
prove it independently developed without use of or reference to the disclosing
party's data or information; or (e) which the disclosing party agrees in writing
is free of such restrictions.
"CONTENT" means software, information, and other data distributed via the Wave
System.
"EMBASSY CHIP TECHNOLOGY" means proprietary integrated circuit designs,
consisting of silicon design modules and Embassy Firmware, for an integrated
circuit or portion of an integrated circuit which contains circuits and firmware
specific to the Wave System and which works in conjunction with a computer or
other electronic device such as a cable TV set-top box, and other parts of the
Wave System to execute transactions, locally store usage data, and report that
usage to the parties. The term, Embassy Chip Technology, shall also apply to any
integrated circuit technology utilized by Wave which replaces the current
Embassy Chip Technology, regardless of whether such replacement technology is
referred to by Wave using the name "Embassy," as long as such replacement
technology meets the foregoing description.
"EMBASSY CHIP" means Wave's proprietary integrated circuit design that contains
the Embassy Chip Technology.
"EMBASSY-ENABLED PRODUCT(S)" means the product developed pursuant to Section 2a,
which contains the Embassy Chip Technology, Embassy Firmware and/or Wave Local
Software modified by Wave for BIZ.
"EMBASSY FIRMWARE" means the firmware, including an operating system, which is
part of the Embassy Chip.
"FIELD OF USE" means the worldwide educational market consisting of public and
private schools and the medical market for patient/doctor record management.
"INTELLECTUAL PROPERTY RIGHTS" means all current and future trade secrets,
copyrights, patents and other patent rights, trademark rights, service xxxx
rights, mask work rights and any and all other intellectual property or
proprietary rights now known or hereafter recognized in any jurisdiction.
"NET WAVE REVENUE" means all revenue collected from the sale, licensing, or
rental of Content decrypted and metered via the Wave System and Embassy-Enabled
Products distributed by BIZ or its sublicensees, less payments actually made to
third parties for the furnishing or delivery of Content, third-party transaction
and processing fees (including without limitation credit-card and "electronic
cash" transaction fees), shipping and handling charges, excise, sales, use, and
turnover taxes, custom duties, charges for credit, collections, and bad debt,
and credits for returns, and other customary and normal trade credits.
"PERMISSION OR PERMISSIONED" means the process of authorizing a validly signed
Embassy Applet to be loaded into an Embassy-Enabled Chip through the secure
interaction between the Applet Certification Authority and the Trust Assurance
Network.
"PROJECT" means the development of the Embassy-Enabled Product pursuant to
Section 2 of this Agreement.
"SPECIFICATIONS" means the specifications for the development of the
Embassy-Enabled Product to be agreed upon by the parties immediately following
execution of this Agreement.
"SSP BIZ/WAVE APPLICATIONS" means the applications Wave develops for and
licenses to BIZ upon request by BIZ, provided, however that the parties shall
maintain joint ownership of all such SSP Applications.
"TRUST ASSURANCE NETWORK" means the computer servers which administer the core
security functions for the Wave System, such as dispensing unique codes or
"keys" to initiate or "personalize" each unit of
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Embassy-Enabled Product, registration of such units, and Embassy Applet
Permissioning. The Trust Assurance Network also includes the computer servers
which encrypt and sign and certify ownership for Embassy Applets so that they
can be distributed to Embassy-Enabled Products.
"WAVE INTELLECTUAL PROPERTY" means all current and future worldwide patents and
other patent rights, copyrights, trademarks, trade secrets, know-how, source
code and all other intellectual property rights and the related documentation
thereof exclusively owned by Wave, including but not limited to, the Wave
System.
"WAVE LOCAL SOFTWARE" means the object-code version of device drivers,
application frameworks, utilities, and other software furnished by Wave to BIZ
in object-code from which are loaded on Embassy-Enabled Products to facilitate
communication and interoperability between Embassy Chips, the Embassy-Enabled
Products on which such software is loaded, and other components of the Wave
System.
"WAVE SYSTEM" means a computer-based system which facilitates the
personalization of Embassy-Enabled Products, the creation and certification of
Embassy Applets, the Permissioning and distribution of such Applets, the
distribution or rental of Content for a fee, the measuring of usage of Content,
the billing and collection for such usage, and includes, but is not limited to,
Wave's servers, hardware, devices, applications and protocols, Embassy Chip
Technology, Embassy Firmware, Applets and SSP BIZ/Wave Applications.
2. DEVELOPMENT OF THE EMBASSY-ENABLED PRODUCT
a. Wave agrees to develop the Embassy-Enabled Product, to be used with an
embedded secure and open applet environment for the cable set-top box, other
related delivery platforms for set top boxes or home gateways powered and/or
controlled by Broadcom Corporation, or vendors of silicon microprocessors, the
development of which shall be pursuant to the terms and conditioned set forth in
this Agreement. Such development shall be limited to the integration of Embassy
Chip Technology into no more than two chipsets, including the software
development required to port related drivers and software to support two set top
or home gateway operating systems. Wave agrees to develop the Embassy-Enabled
Product pursuant to the development schedule in Section 3. Wave and BIZ shall
jointly agree upon the selection of chipsets and operating systems that will be
integrated.
b. Wave agrees to work with BIZ to integrate the technologies necessary to
develop the Embassy-Enabled Product. The terms and conditions of integration
shall be pursuant to a separate agreement between the parties.
c. BIZ agrees to provide all necessary assistance to Wave in order for Wave
to complete the Project.
d. Wave agrees to develop for and license to BIZ the SSP Applications in
Attachment A, which shall utilize the Wave System and Wave services. e. Wave
agrees to work with Broadcom, through BIZ, to integrate the EMBASSY technology
into selected Broadcom PC chips for peripherals or adapters supported by the
Windows operating system. Wave will also make any necessary changes for the
EMBASSY Local software and Wave applications to support the new chip
implementations of the EMBASSY technology.
3. SCHEDULE OF DEVELOPMENT.
a. The development of the Project shall be pursuant to the schedule set forth
in an agreement, which shall be modified by the parties from time to time.
b. BIZ and Wave shall each assign a full time project manager who shall be
responsible for (i) facilitating the development of the Embassy-Enabled Product
under the Agreement and (ii) performing
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general management functions in representation of their respective company's
objectives under this Agreement.
4. GRANT OF LICENSES.
a. Pursuant to the terms and conditions of this Agreement, including the
conditions set forth in Section 5, Wave grants BIZ:
(i) an exclusive, worldwide, license, to distribute the Embassy-Enabled
Product, developed in Section 2a, to Broadcom, Conexant, EDS, Cap Gemini/Ernst &
Young and Deloitte & Touche, pursuant to Wave's standard terms and conditions.
(ii) an exclusive, worldwide, license to distribute and to sublicense the
SSP Applications developed by Wave in Section 2d, to Broadcom, Conexant, EDS,
Cap Gemini/Ernst & Young and Deloitte & Touche ,in the Field the Use, pursuant
to Wave's standard terms and conditions.
(iii) a non-exclusive, worldwide, license to distribute and to sublicense
the SSP Applications, developed by Wave in Section 2d, outside the Field the Use
and pursuant to Wave's standard terms and conditions.
5. CONDITIONS AND RESTRICTIONS.
a. The exclusive license granted in Section 4a(i) and 4a(ii) shall be
terminated in the event:
(i) BIZ fails to secure a contract with Broadcom to integrate the Embassy
Chip Technology in at least one chipset by September 2001, unless Wave has not
completed and delivered the applications required to secure the contract with
Broadcom, in which event the period of time shall be extended to six months
after the delivery of such applications; or
(ii) BIZ fails to produce a set-top box that includes the Embassy-Enabled
Product within eight-months after the contract between BIZ and Broadcom is
executed.
b. BIZ agrees that the Wave System is an open system and that generally
available components or services available from Wave may be used by third
parties to build competitive solutions to the SSP application's the field of
use.
c. Wave agrees to provide a reasonable amount of support to BIZ to integrate
the Embassy-Enabled Product into authorized third party products.
6. TRADEMARK RIGHTS.
BIZ requests and Wave agrees to provide certain markings and identification,
which includes the trademark(s) and/or trade name of BIZ and "SSP", on the
Embassy-Enabled Products ordered and delivered to BIZ, . Such markings and
trademarks shall be marked in accordance with the requirements of BIZ provided
that any such BIZ trademarks and/or trade names shall, in Wave's reasonable
determination, be compatible with Wave's trademarks, trade names and/or
copyright notices contained on the Embassy-Enabled Products.
7. FEES
a. BIZ agrees to prepay license fees for the distribution of the
Embassy-Enabled Product and Applets. These prepaid fees are not refundable and
will be paid over a fifteen (15) month period. The total license fee paid will
be $8,000,000 US Dollars with $2,000,000 US Dollars paid on every subsequent
90th day anniversary (or next business day) due and payable over a fifteen (15)
month period from the date of
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execution of this Agreement. Wave agrees to supply BIZ with 10 million
permissioned Applets and 5 million prepaid licenses for the Embassy-Enabled
Product.
b. BIZ shall pay Wave a development fee of $2,000,000 US Dollars for the
development of the SSP Applications within thirty (30) days after the effective
date of this Agreement.
c. Fees for the Embassy-Enabled Product shall be F.C.A. origin (Seller's
shipping dock). All such fees are exclusive of the costs of transportation,
insurance, taxes, customs, duties, landing, storage and handling fees, and/or
documents or certificates required for exportation or importation, which will be
separately itemized and billed to BIZ in accordance with the billing and payment
provisions of this Agreement.
d. Any payment that is not received by Wave within fifteen (15) days after it
is due shall bear interest at a rate equal to one and one half percent (1-1/2%)
per month or the highest rate permitted by applicable law, whichever is less, on
the unpaid amounts outstanding from the date such amounts became due and owing
until paid in full.
8. DELIVERY SCHEDULE.
a. The delivery dates for the Embassy-Enabled Product to BIZ shall be agreed
upon within thirty (30) days after the Effective Date of this Agreement,
pursuant to a separate written agreement. The delivery schedule shall be agreed
upon by each party's Project Manager, and subject to change from time to time
upon written notice to the other party.
b. Wave agrees to immediately notify BIZ in writing of any anticipated delays
in delivery, provided that Wave shall notify BIZ in writing setting forth the
reasons for such delay.
9. COMMODITY CLASSIFICATION.
Wave shall provide BIZ with a copy of the Commodity Classification for the
Embassy-Enabled Product or, if this is not available, Wave shall provide BIZ
with the ECCN that was used by Wave for self- certification. A copy of the
Commodity Classification is required for any product containing security or
encryption technology. In addition, Wave shall advise BIZ as to any license
exception, if applicable, pursuant to which the Embassy-Enabled Product may be
exported.
10. ACCEPTANCE. Prior to acceptance of the Embassy-Enabled Product, BIZ shall
test such Embassy-Enabled Product at BIZ's facility to determine conformance
with the Specifications which shall be set forth in a future attachment to this
Agreement or with the parties' agreed-upon testing and acceptance criteria, BIZ
shall notify Wave of such failure and the parties will promptly discuss means to
resolve any such failure. Wave shall have up to thirty (30) days (or such longer
period as the parties may agree) to deliver to BIZ a conforming Embassy-Enabled
Product. If Wave fails to deliver such conforming Embassy-Enabled Product within
such thirty (30) day period, absent separate a agreement, BIZ shall have the
right, without liability, to either cancel continued development for that
Embassy-Enabled Product and any other products, the acceptance of which is
impractical in BIZ's reasonable opinion as a result of Wave's failure to meet
the Specifications, or require expedited shipping of the conforming
Embassy-Enabled Products at Wave's sole cost. After initial acceptance of the
Embassy-Enabled Product or a modified Embassy-Enabled Product, further
deliveries of such Embassy-Enabled Product shall be deemed accepted upon
delivery.
11. INSPECTION RIGHTS. BIZ shall have the right to perform vendor qualifications
and/or on-site source inspections at Wave's development or manufacturing
facilities. If an inspection or test is made on Wave's premises, Wave shall
provide BIZ's inspectors reasonable access to the facilities and reasonable
assistance at no additional charge. BIZ must provide Wave a minimum of ten (10)
days prior notice of such inspection. Such inspection shall be conducted during
normal business hours and in compliance with Wave's safety and security
requirements.
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12. REGULATORY AGENCY COMPLIANCE. All Embassy-Enabled Products delivered
hereunder shall comply in all material respects with the regulatory agency
requirements.
13 ENGINEERING CHANGE. In the event that BIZ determines that the Embassy-Enabled
Product requires further technical modifications, BIZ shall provide Wave with
written notice detailing the proposed modifications and Wave shall in good faith
determine the feasibility of implementing such proposed modifications. If Wave
determines that it is feasible to implement the modifications, Wave and BIZ
agrees to work together in good faith to implement such modifications to the
Embassy-Enabled Product.
14. ENGINEERING CHANGE ORDERS. Wave shall provide reasonable prior written
notice to BIZ of any material change, improvement, enhancement or update that
affects the form, fit or function to the Embassy-Enabled Product, or to any
related product, or any changes to Wave's part number for a Embassy-Enabled
Product prior to its implementation. BIZ shall respond in writing to Wave's
notice of any material change, improvement, enhancement or upgrade within
twenty-one (21) days after receiving such notice. If BIZ does not receive such a
response from Wave, the material change, improvement, enhancement or upgrade
shall be deemed accepted. Wave may shorten BIZ's response time if the change is
intended to improve safety or reliability. At Wave's request, the parties shall
work together in good faith to implement any changes, improvements,
enhancements, upgrades or other modifications to the Embassy-Enabled Products.
15. REJECTION OF CHANGE ORDERS. BIZ shall not unreasonably withhold acceptance
of a proposed change, provided, however, that BIZ may reject a proposed change
for good cause. If BIZ rejects a proposed change, the parties will discuss in
good faith alternatives to such rejection. Upon rejection of any proposed
change, BIZ shall be entitled to terminate in whole or in part, any affected
Embassy-Enabled Product remaining undelivered.
16. UNAUTHORIZED CHANGES. If an ECO is implemented without the written approval
of BIZ, Wave shall be liable for repair and/or rework of all Embassy-Enabled
Products affected, including to, but not limited to, Embassy-Enabled Products in
transit, product in Finished Good Inventory, and any Embassy-Enabled Product
located with a reseller or at an end user location.
17. OWNERSHIP OF INTELLECTUAL PROPERTY.
For any joint conception, invention and development of technology, the parties
agree that all Intellectual Property Rights conceived, created, made, or first
fixed in a tangible medium of expression during the term of this Agreement shall
be as follows: (i) joint Intellectual Property Rights when accomplished by
either party's personnel. Wave and BIZ agree that throughout the term of this
Agreement they shall cooperate reasonably and in good faith to decide jointly
the manner in which their respective interests in Joint Intellectual Property
shall be perfected and enforced. Specifically, Wave and BIZ shall jointly
decide: (i) the subject matter for which patent applications and applications
for copyright registrations will be prepared; (ii) the resources to be utilized
in the preparation and prosecution of such applications; (iii) the parties'
rights to review and/or approve such applications and other papers prior to
filling in, or submission to, the patent, copyright and trademark offices in the
United States; (iv) the allocation of expenses incurred in the preparation,
prosecution and maintenance of patent applications, patents, and copyright
registrations and the like; (v) matters regarding the enforcement, through
litigation, licensing or otherwise of the Joint Intellectual Property against
third parties; and (vi) the manner in which revenue resulting from enforcement
of Joint Intellectual Property will be shared between Wave and BIZ. Should a
party choose not to participate in securing or protecting an element of Joint
Intellectual Property (by notifying the other party in writing to such effect),
the other party may secure or protect its claims to such Joint Intellectual
Property and shall be entitled to reap the benefit of its efforts without
accounting to the other party, including without limitation retaining the full
amount of any settlement or damage award from a third party.
INFRINGEMENT BY THIRD PARTIES. If either party learns of any possible
infringement or misappropriation of the other party's Intellectual Property
Rights related to the Products, it shall immediately give notice thereof to the
other party. Each party agrees to cooperate with the infringed party's
reasonable efforts to seek legal remedies for such infringements and
misappropriations.
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ALTERATION OF THE PRODUCT. All modifications to the Products shall be done
jointly by the parties or by prior joint written consent of the parties. No
modifications will be made that would result in a violation of the license
restrictions set forth in this Agreement or the BIZ/Wave Agreement.
18. INDEMNIFICATION.
a. Subject to the provisions of Section 18c and 18d, Wave shall defend,
indemnify, and hold BIZ and its sublicensees harmless against any claim that (i)
the Embassy Chip Technology or other portions of the Wave System infringe a
patent, copyright, or trade secret of a third-party when used in accordance with
the terms of this Agreement, (ii) Wave's trademarks or service marks infringe
the trademark rights of a third party when used in accordance with the terms of
this Agreement, or (iii) the Wave System or any act or omission of Wave or its
agents causes damages to a third party. BIZ agrees to look to Wave only, and not
to its Authorized Chip Supplier, for indemnity regarding a problem with the Wave
System or the Embassy Chip Technology as embodied in the Embassy-Enabled
Products.
b. Subject to the provisions of Section 18c and 18d, BIZ shall defend,
indemnify, and hold Wave harmless against any claim that (i) BIZ's or its
sublicensees' Embassy-Enabled Products infringe a patent, copyright, or trade
secret of a third-party, unless such infringement would not have occurred but
for the incorporation of the Embassy-Enabled Chip into such Embassy-Enabled
Product, (ii) BIZ's trademarks or service marks infringe the trademark rights of
a third party when used in accordance with the terms of this Agreement, or (iii)
BIZ's or its sublicensees' Embassy-Enabled Products (other than the Embassy Chip
Technology) or any act or any act or omission of BIZ or its agents causes
damages to a third party.
c. In providing indemnification under Sections 18a or 18b, the indemnifying
party shall have the right, at its option, either to obtain for the indemnified
party the right to continue using the allegedly infringing technology,
substitute other technology with equivalent functional capabilities, or modify
the technology so that it is no longer infringing while retaining equivalent
functions. If such options are not reasonably available, the indemnified party's
exclusive remedy shall be to terminate this Agreement and to cease using the
technologies in question.
d. As conditions of the indemnified party receiving indemnification under
Sections 18a or 18b, the indemnifying party must receive (i) prompt notice of a
claim of infringement; (ii) the right to control the defense against such claim
and related settlement negotiations; and (iii) reasonable cooperation from the
indemnified party.
19. WARRANTIES.
a. Each party represents and warrants to the other that it has full corporate
power and authority to enter into this Agreement and perform its terms, and that
neither the execution of this Agreement nor the performance of its terms shall
constitute or result in a breach or default in any agreement, commitment or
understanding to which it is a party and this Agreement is the valid, binding,
and enforceable agreement of such party.
b. The warranty, if any, offered by Wave to its end-users is the entire
warranty made by Wave concerning the Wave System. If BIZ receives complaints
from its customers concerning the Wave System, then BIZ's sole remedy shall be
to seek indemnity pursuant to Section 18(a). WAVE MAKES NO WARRANTIES, EXPRESS
OR IMPLIED, TO BIZ OR BIZ'S SUBLICENSEES CONCERNING THE WAVE LOCAL SOFTWARE, THE
EMBASSY CHIP TECHNOLOGY, OR THE WAVE SYSTEM. WAVE SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BIZ
shall not enlarge upon or alter the foregoing provision on behalf of Wave with
respect to BIZ's sublicensees.
20. TERM AND TERMINATION. This Agreement shall commence on the date first
written above and, shall continue in force until terminated as provided herein.
This Agreement can be terminated by either party upon written notice to the
other for a material breach of this Agreement by the other party, which is not
cured within
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30 days after receipt of written notice of such breach. The term of this
Agreement shall be for three years, with an option to extend for a mutually
agreed upon period, if the parties so wish.
21. LIMITATION ON LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS)
RESULTING FROM THE BREACH OR TERMINATION OF THIS AGREEMENT. Except for liability
under Sections 18 or 22, the liability of the parties to each other under this
Agreement shall not exceed the amount of fees paid to BIZ by Wave hereunder.
22. CONFIDENTIALITY. During the term of this Agreement, each party to this
Agreement may disclose certain "Confidential Information" to the other party.
Each party shall refrain from using any and all Confidential Information of the
other party for any purposes or activities other than those specifically
authorized in this Agreement. Except as otherwise specifically permitted herein
or pursuant to written permission of the party to this Agreement owning the
Confidential Information, neither party shall disclose or facilitate disclosure
of Confidential Information of the other party to anyone without the prior
written consent of the other party, except to its employees and to consultants
who need to know such information for carrying out the activities contemplated
by this Agreement and who agree to be bound by the requirements of this Section.
Without obtaining the other party's prior written consent, neither party shall
copy or duplicate any Confidential Information of the other party by any means
or technique except that, unless otherwise expressly restricted herein, both
parties are permitted to make those copies which are necessary for their
internal company use or which are necessary to carry out the terms of this
Agreement. All files, lists, records, documents, charts, specifications, and
computer programs which incorporate or refer to all or a portion of the
Confidential Information shall remain the sole property of the owner thereof.
Such materials shall be promptly returned or destroyed (i) upon the owner's
reasonable request, or (ii) upon termination of this Agreement as provided
herein, whichever is earlier.
23. EXPORT LAW COMPLIANCE. Neither party will export or reexport, directly or
indirectly, the Embassy-Enabled Products or technical data acquired under this
Agreement or the "direct product" of software programs or such technical data to
any country for which the United States Government or any agency thereof, at the
time of export, requires an export license or other governmental approval,
without first obtaining such license or approval. The term "direct product" as
used herein means the immediate product (including processes and services)
produced directly by the use of the technical data or software programs. Both
parties will cooperate, to effect compliance with all applicable import and/or
export regulations. In addition, the parties agree to comply with all applicable
local country import and/or export laws or regulations in the country(ies) of
procurement, production and/or end destination of the Embassy-Enabled Product.
Both parties understand that the foregoing obligations are legal requirements
and agree that they shall survive any term or termination of this Agreement.
24. ASSIGNMENT. Except as specifically permitted herein, neither party shall
assign the licenses or its duties or responsibilities under this Agreement
without the express written permission of the other party. The foregoing
prohibition shall not apply in the case of a sale of all or substantially all of
a party's assets or stock, or merger. This Agreement shall be binding upon and
inure to the benefit of a party's permitted successors and assigns.
25. CHOICE OF LAW/DISPUTE RESOLUTION. This Agreement shall be governed and
interpreted under the laws of the State of California, excepting those portions
related to conflicts of laws. Except with matters requiring an injunction, any
dispute arising out of or relating to this Agreement, or breach thereof, shall
be first submitted to the senior management of each party for resolution. If the
dispute cannot be resolved within 30 days after such matter is referred to
senior management, then the dispute shall be submitted to binding arbitration in
the English language in Santa Xxxxx County, California and in accordance with
the Commercial Arbitration Rules of the American Arbitration Association ("AAA")
then in effect. The arbitration shall be conducted by a single arbitrator
mutually acceptable to both parties. If the parties cannot agree on a single
arbitrator, then the San Francisco office of the AAA shall appoint the
arbitrator. In any event, the arbitrator shall have extensive experience with
matters concerning computers and integrated circuits. All discovery must be
concluded within 60 days after the submission to arbitration. The decision of
the arbitrator shall be final and may be entered as judgment in any court of
competent jurisdiction. The arbitrator shall determine the allocation
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of arbitration costs and reasonable attorneys' fees between the parties
according to the relative merits of each party's case. EACH PARTY HEREBY WAIVES
ITS RIGHT TO TRIAL BY JURY. Notwithstanding the foregoing, this arbitration
clause shall not apply to any action for injunctive relief brought by either
party for the purpose of protecting or enforcing rights in any intellectual
property, whether patent, trademark, trade secret, copyright, or otherwise, or
in any Confidential Information. In the event of misuse or infringement, actual
or threatened, of any Confidential Information or intellectual property rights,
notwithstanding anything else in this Agreement, and in addition to any other
relief or remedy available, either party, without first resorting to the 30 day
resolution procedure described above, shall be entitled to seek and obtain
relief and orders from the courts and other authorities, including an injunction
restraining violations of obligations with respect to Confidential Information
and intellectual property.
26. NOTICES. Unless otherwise provided, any notice to be given hereunder shall
be in writing and shall be effective when received. Such notice shall be sent by
first class mail, postage prepaid and marked for delivery by Certified or
Registered mail, return receipt requested, or other form of receipted delivery,
addressed to receive the notice at the address given for it below. Any changes
for such notices may be specified by written notification to the other party
made following the requirements in this Section 33.
President CEO
Wave Systems Corp. Biz Interactive Zone
000 Xxxxxxxx Xxxxxx 0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx, Xxxxxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxx 00000
27. HEADINGS. The various headings and sections of this Agreement are
inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement.
28. WAIVER. The waiver by either party of a breach or default in any of the
provisions of this Agreement by the other party shall not be construed as a
waiver of any succeeding breach of the same or other provisions. Any delay or
omission on the part of either party to exercise or avail itself of any right,
power or privilege that it has or may have hereunder operate as a waiver of any
breach or default by the other party. Any single or partial exercise of any
right or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right or remedy granted hereby or by law.
29. FORCE MAJEURE. Neither party shall be liable to the other party for any
delay or omission in the performance of any obligation under this Agreement,
other than an obligation to pay money, where the delay or omission is due to any
condition beyond the reasonable control of the party obliged to perform,
including but not limited to, strikes or other labor difficulties, acts of God,
electrical power or communications outages, acts of government, war, riots, or
embargoes.
30. SEVERABILITY. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law.
In the event that any provisions contained in this Agreement are held to be
unenforceable, this Agreement shall be construed without such provisions.
31. RELATIONSHIP OF THE PARTIES. The relationship of the parties established by
this Agreement is of contracted developer or independent contractors, and
nothing in this Agreement shall be construed to give either party the power to
direct or control the daily activities of the other party; or constitute the
parties as principal and agent, employer and employee, partners, joint
venturers, co-owners or otherwise as participants in a joint undertaking. The
parties understand that, except as specifically provided for in this Agreement,
neither party grants the other party the power or authority to make or give any
agreement, statement, representation, warranty, or other commitment on its
behalf, or to enter into any contract or otherwise incur any liability or
obligation, express or implied, on its behalf, or to transfer, release, or waive
any of its rights, title or interests. Neither this Agreement nor any terms and
conditions contained herein shall be construed as granting a franchise as
defined by state law or 16 CFR Section 436.2(a).
32. MODIFICATION OF AGREEMENT. This Agreement shall not be modified,
amended or in any way altered except by an instrument in writing signed by
both parties. Approval or consents hereunder of a party shall also be in
writing.
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33. ENTIRE UNDERSTANDING. The parties acknowledge that they have read this
entire Agreement and that this Agreement and the Exhibits attached hereto, which
are incorporated into and made part of this Agreement, constitute the entire
understanding between the parties with respect to the subject matter hereto and
in the event any terms or conditions of prior Agreements including Exhibits
attached hereto, between the parties are in conflict or are contradictory to the
terms and conditions stated in this Agreement, the terms and conditions of this
Agreement supersede all prior or contemporaneous agreements between the parties
whether oral or written relating to the same subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
WAVE SYSTEMS CORP. BIZ INTERACTIVE ZONE, INC.
/s/ XXXXXX XXXXXXX /s/ XXXXXX X. XXXXXX
--------------------------------- ------------------------------------
Authorized Signature Authorized Signature
XXXXXX XXXXXXX XXXXXX X. XXXXXX
--------------------------------- ------------------------------------
Printed Name Printed Name
President & CEO President & COO
--------------------------------- ------------------------------------
Title Title
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Attachment A
Project 1
Work with BIZ's partners to build a solution for schools to have multiple
private networks for students and teachers. This network would include secure
access to web pages, Encrypted data stored on servers, Document distribution,
secure Email attachments. The system can be administrated by teachers and or IT
dept will not expose keys to any users.
Project 2
Work with BIZ's and through BIZ, it's partners such as EDS and Cap Gemini/Ernst
and Young; to build a embedded secure open platform solution of Embassy Applets
for medical information distribution, accountability, and linking to appropriate
electronic business transaction functionality that meets or exceeds HIPAA
standards or regulations.
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