SiVault Systems, Inc.
Product and Technology License Agreement
Effective Date:
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SiVault Systems, Inc. ("SIVAULT") Hypercom Corporation ("Licensee")
000 X. Xxxxxxxxxx Xxxx, Xxx 000 0000 X. Xxxxxxxx Xxxx
Xxx Xxxx, XX 00000 Xxxxxxx, Xxxxxxx 00000
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Licensee
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BUSINESS CONTACT: Name: Xxxx Xxxxxxx
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Name: Xxxxx Xxxxxx Title: Vice President,
Global Product Marketing
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Title: Chief Financial Officer Phone: 000-000-0000
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Phone: (000) 000-0000 e-mail: xxxxxxxx@xxxxxxxx.xxx
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e-mail: Xxxxx.Xxxxxx@xxxxxxx.xxx
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1. PRODUCT LICENSE.
1.1 Pursuant to the terms hereof and the attached Appendices, that are
hereby incorporated by reference, SIVAULT hereby grants Licensee a
perpetual, worldwide, non-exclusive license, and sublicense, to: (a)
demonstrate, market, and distribute, directly, or through, to its
customers, distributors, resellers and other end users (collectively,
the "END USERS") in the Territory, SIVAULT's Products, software and/or
services (collectively, the "SIVAULT PRODUCT(S)") listed in Appendix A,
Section 1, attached hereto, offered in conjunction with Licensee's
products and any SIVAULT Product support materials; and (b) reproduce
any SIVAULT Product related software, object code, or support materials.
1.2 SIVAULT also grants Licensee a perpetual, worldwide, non-exclusive
license to use, copy, modify and create, in any manner whatsoever,
derivative works (within the meaning of the U.S. Copyright Act) based on
SIVAULT's Technology listed in Appendix A, Section 2 and to demonstrate,
sublicense, market, and distribute, directly, or through to End Users
such derivative works (collectively, the "derivative work(s)"). Such
License is granted for the Territory delineated in Appendix B attached
hereto. Licensee shall have all right, title and ownership in any
derivative work.
1.3 SIVAULT reserves all rights not otherwise expressly granted to Licensee
in this Agreement. Title to and ownership of SIVAULT Products and all
copies thereof, except for any derivative works as provided in Section
1.2 above, shall remain with SIVAULT.
2. LICENSE FEES, REPORTING AND PAYMENT TERMS, PAYMENT TERMS, TERRITORY, AND
OTHER OBLIGATIONS AND COMMITMENTS.
2.1 LICENSE FEES. Licensee will pay SIVAULT "LICENSE FEES" as stated in
Appendix B, Section A.
2.2 MONTHLY ACTIVITY REPORT. Fifteen (15) days after each month end,
Licensee will submit a ("MONTHLY ACTIVITY REPORT") to SIVAULT containing
the following information, which is information that SIVAULT cannot
otherwise monitor through its website or web portals: (a) all License
Fees due for the preceding month; and (b) the Products and quantity
thereof to which such Licensee Xxx pertains. This information is
required for issuance of a License Key, as well as to check for export
control prohibitions. SIVAULT will directly provide a License Key to the
End User.
2.3 PAYMENT. Payment of all fees and expenses shall be due and payable
within forty five (45) days upon receipt of an undisputed invoice.
Licensee will pay and send all amounts due to the address designated by
SIVAULT in U.S. currency, free of all currency controls or other
restrictions. All past due amounts will incur interest at a rate equal
to the lower of one and a half percent (1.5%) per month or the highest
rate permitted by law. Except for taxes paid by SIVAULT on its net
income, all amounts due are net of, and Licensee will be solely
responsible for, any shipping charges, withholding, use, sales,
value-added, import and any other taxes, fees, tariffs or duties
associated with this Agreement or Licensee's use of the SIVAULT
Products.
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2.4 TERRITORY. SIVAULT appoints Licensee as an independent, nonexclusive,
authorized Distributor limited to the "TERRITORY" as specified in
APPENDIX B, SECTION C for the SIVAULT Products, to distribute SIVAULT
Products directly or indirectly to End Users in the Territory, using its
own personnel or independent sales representatives. SIVAULT reserves the
right, in its sole discretion and without obligation or liability of any
kind to Licensee, to increase or decrease the number of SIVAULT
distributors in the Territory or any part of the Territory.
A. DISTRIBUTION THROUGH RESELLERS. Licensee may appoint one or more
resellers, provided that: (a) Licensee has obtained an executed
reseller agreement from each reseller; and (b) each reseller
agrees to honor all of Licensee's obligations hereunder; and (c)
notwithstanding subsection (b) above, Licensee remains
personally responsible for any failure by a reseller to honor
such obligations. If a reseller materially breaches any of its
obligations to Licensee as required under this Agreement,
SIVAULT may, upon its election and in addition to any other
remedies that it may have, at any time notify Licensee in
writing of such breach and require Licensee to remedy the breach
within thirty (30) days or otherwise terminate such reseller
agreement. For the purposes of this section the term "reseller"
also means "distributor".
2.5 OTHER OBLIGATIONS AND COMMITMENTS, SEE APPENDIX E.
2.6 TERM AND TERMINATION.
a. This Agreement is for an initial term expiring one (1) year from
the effective date hereof and shall be automatically renewed for successive one
year terms unless either party notifies the other, in writing, three (3) months
prior to the expiration of the original term, or any renewal term thereof, of
its intent not to renew, or unless this Agreement is otherwise terminated
pursuant to the provisions hereof.
b. Upon five (5) days written notice to the other party either
party may terminate this Agreement at any time in the event that the other party
materially breaches this Agreement and fails to cure such breach within thirty
(30) days after receiving notice of such breach.
c. Upon termination or expiration of this Agreement:
(i) The due dates of all undisputed outstanding invoices for
License Fees for SIVAULT Products automatically will be
accelerated so they become due and payable on the
effective date of termination or expiration, even if
longer terms had been provided previously. All purchase
orders or portions thereof remaining unshipped as of the
effective date of termination or expiration shall
automatically are canceled.
(ii) Each party will immediately cease all display,
advertising and use of all the other party's trademarks,
trade names, logos and designations and will not
thereafter use, advertise or display any trademark,
trade name, logo or designation.
d. Licensee may terminate this Agreement at any time, and for any
reason, upon thirty (30) days prior written notice.
e. Should SIVAULT make an assignment for the benefit of creditors,
admits in writing its inability to pay its debts as they become due, files a
voluntary, or has filed against it an involuntary, petition for bankruptcy or
reorganization, is adjudicated a bankrupt or insolvent, or applies for or
consents to the appointment of a receiver for it or its property, SIVAULT
immediately grants to Licensee a fully paid-up, perpetual, non-revocable,
transferable, worldwide license in the Product Licenses described in Sections
1.1 and 1.2 of this Agreement.
3. END-USER SUPPORT AND SUPPORT TO LICENSEE. MAINTENANCE AND SUPPORT TERMS
ARE DELINEATED IN APPENDIX C.
4. WARRANTY.
4.1 LIMITED SIVAULT PRODUCT WARRANTY.
a. Unless otherwise specified in an applicable Appendix, SIVAULT
warrants that for a period of one hundred
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eighty (180) days from the date of delivery to End User: (i) each SIVAULT
Product shall materially perform in accordance with the relevant Documentation
therefore; and (ii) the media on which SIVAULT Products are furnished shall be
free of defects in material and workmanship under normal use.
b. NO LIENS. SIVAULT warrants that it has the right, title, and
interest to convey the SIVAULT Products, and that the SIVAULT Products are free
of all liens, charges, encumbrances, or claims of any person. If at any time
SIVAULT shall incur any indebtedness that has become a lien upon the SIVAULT
Products or any part thereof or which may become a claim against Licensee, or in
the event a claim is asserted against Licensee alleging that the SIVAULT
Products are infringing, SIVAULT shall immediately pay such claim or
indebtedness or cause such lien to be released and discharged by posting a bond
or otherwise at its expense and indemnify Licensee against any damages or
expenses.
c. NO VIRUSES. To the extent any SIVAULT Products are, or include,
software, such software shall not contain any virus, trojan horse, worm, time
bomb, back door or other software routine designed to disable a computer program
automatically or permit unauthorized access.
d. NO LITIGATION. There is no litigation or proceeding whatsoever,
actual or threatened, against SIVAULT, or breach, default, or alleged breach or
default of any agreement, order, or award binding upon it, in each case, which
would materially affect SIVAULT's ability to perform any of its obligations
under this Agreement.
e. In case of breach of the above warranties, SIVAULT shall use
best efforts to repair or replace the SIVAULT Products failing
to perform according to the published specifications. Licensee's
exclusive remedy and SIVAULT's entire liability under this
limited warranty will be, at SIVAULT's option, to repair or
replace the SIVAULT Products so they may conform to this
warranty.
4.2 DEFECTS NOT COVERED BY WARRANTIES. SIVAULT shall have no obligations
under the warranty provisions set forth in Section 4.1 if any nonconformance
would not have occurred but for: (a) Incorporation or utilization of any third
party program with a SIVAULT Product; (b) misuse, or an unauthorized alteration,
modification or enhancement of SIVAULT Product; or (c) use of a SIVAULT Product
for uses other than the specific purpose for which it was intended or otherwise
authorized by SIVAULT.
4.3 NO OTHER WARRANTIES. EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT,
SIVAULT MAKES NO WARRANTIES OR REPRESENTATIONS, INCLUDING WITHOUT LIMITATION,
ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, REGARDING ANY PRODUCT, SOFTWARE, DOCUMENTATION, OR ANY
PORTION, COPY OR COMPONENT THEREOF, TO LICENSEE OR TO ANY OTHER PERSON; ALL ARE
PROVIDED "AS IS."
5. LIMITED LIABILITY. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS IN SECTION
9 AND DAMAGES ARISING FROM THE CONFIDENTIALITY OBLIGATIONS IN SECTION 8, IN NO
EVENT WILL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR ANY
INDIRECT DAMAGES FOR ANY REASON WHATSOEVER (INCLUDING WITHOUT LIMITATION, LOST
PROFITS, REPUTATION, GOODWILL, BUSINESS, USE, EXPENSES CAUSED BY BREACH, LOSS OF
RECORDS OR DATA), REGARDLESS OF WHETHER ARISING FROM BREACH OF CONTRACT,
WARRANTY, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE
POSSIBILITY OF THE LOSS OR DAMAGE OR IF THE LOSS OR DAMAGE COULD HAVE BEEN
REASONABLY FORESEEN. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS IN SECTION 9 AND
DAMAGES ARISING FROM THE CONFIDENTIALITY OBLIGATIONS IN SECTION 8, NEITHER
PARTY'S TOTAL LIABILITY TO THE OTHER FOR AGGREGATE CLAIMS ARISING UNDER THIS
AGREEMENT SHALL EXCEED THE TOTAL AMOUNT TO BE PAID BY LICENSEE TO SIVAULT.
6. EXCLUSION OF WARRANTIES ON ACCOUNT OF LICENSEE MODIFICATIONS. If any
unauthorized modifications are made to the SIVAULT Products by Licensee, the
warranty shall be immediately terminated. Correction for difficulties or
defects traceable to Licensee's errors or systems changes may be made at
SIVAULT's discretion and shall be billed at SIVAULT's standard time and material
charges.
7. PROPRIETARY RIGHTS. Licensee acknowledges that SIVAULT owns and will
retain all copyright, trademark, patent, trade secret and other proprietary
rights in the SIVAULT Product, any component thereof, and the marks, names,
logos and designations of SIVAULT used therewith worldwide (collectively, the
"SIVAULT MARKS"). Licensee agrees during the after the term of this Agreement
not to alter, decompile, disassemble, reverse engineer, or otherwise attempt to
discover source code
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underlying the SIVAULT Products, or create any derivative works based on the
SIVAULT Products (all of the foregoing, collectively, "PROHIBITED ACTS"), except
as otherwise agreed to in this Agreement. SIVAULT shall have right to terminate
this Agreement immediately if Licensee breaches this Section 7 and does not
remedy such breach within thirty (30) days. Licensee will use reasonable efforts
to protect SIVAULT's proprietary rights. Licensee agrees to use the appropriate
trademark symbol (either "TM" or "(R)") as designated by SIVAULT in superscript
and clearly indicate SIVAULT's ownership of the SIVAULT Marks in any of
Licensee's advertisements or brochures distributed in connection with a Product.
Licensee shall use the SIVAULT Marks in accordance with SIVAULT's reasonable
instructions as communicated in writing to Licensee from time to time. Licensee
shall, upon request, provide SIVAULT samples of all literature, packages, labels
and labeling which use SIVAULT Product names. Notwithstanding the foregoing,
SIVAULT agrees that Licensee may also include its trademarks, logos and/or
service marks in connection with the SIVAULT Product as reasonably designated by
Licensee from time to time "LICENSEE'S MARKS"). Licensee agrees to maintain the
high level of quality accorded products associated with and marketed by SIVAULT
under SIVAULT's Marks. Licensee shall cause copyright and patent notices
provided by SIVAULT from time to time to appear in the following places on all
units of the SIVAULT Product distributed by Licensee: (a) a notice which is
embodied in machine readable form in such a manner that on visually perceptible
printouts it appears at or near the title or at the end of the work, or is
displayed at the user's terminal at sign on, or is continuously on terminal
display; (b) a legible notice placed on diskettes or other physical storage
media on which the SIVAULT Product is distributed; and (c) in the documentation
distributed in connection with the SIVAULT Product on the title page or the page
immediately following the title page.
8. CONFIDENTIALITY. Each party acknowledges that in connection with this
Agreement it will receive information confidential and proprietary to the other
party. Each party agrees not to use such information except in performance of
this Agreement, and not to disclose such information to any other party, unless
the receiving party is compelled by law, regulation, or judicial, administrative
or governmental proceeding, to disclose any of the disclosing party's
Confidential Information. In such case, the receiving party hereby agrees to
promptly notify and cooperate with the disclosing party in the event it
reasonably anticipates it may be compelled to disclose in order to permit the
disclosing party to seek a protective order. To the extent that Licensee and
SIVAULT have executed a separate confidentiality agreement related to the
subject matter of this Agreement, and the terms of such separate agreement
provide a higher level of protection or delineate obligations and/or
responsibilities with a higher degree of specificity than this Agreement the
terms of such separate agreement shall control the parties confidentiality
obligations and responsibilities and such terms are hereby incorporated herein
by reference.
9. INFRINGEMENT AND INDEMNITY.
9.1 If notified promptly in writing (provided that Licensee's failure to
promptly notify SIVAULT shall not affect SIVAULT's obligations hereunder
except to the extent that Licensee's delay prejudices SIVAULT), and
given sole control of the defense and all related settlement
negotiations (provided that SIVAULT will not enter into any settlement
that adversely affects Licensee's rights without Licensee's prior
written consent), SIVAULT will indemnify, hold harmless and defend
Licensee, its affiliates, subsidiaries, officers, directors, employees
and agents from and against claims, losses, liabilities, demands,
damages and costs and expenses (including, but not limited to, attorney
fees incurred in a bankruptcy or any other proceeding, at trial and on
appeal, or which were expended to obtain performance by SIVAULT of its
indemnification obligations hereunder) in connection with a claim from:
(a) an actual or alleged infringement by the SIVAULT Product, or any
portion thereof, on any copyright, patent, trademark or other
proprietary right, or misappropriate a trade secret, of a third party;
or (b) any negligence by or any misconduct on the part of SIVAULT or
SIVAULT's personnel.
9.2 SIVAULT will have no liability for, and Licensee will defend and
indemnify (including reasonable attorney fees and costs of litigation)
SIVAULT against, any claim arising from or based upon: (a) any
combination, operation or use of any SIVAULT Product with any equipment,
data or programming not approved or authorized by SIVAULT; and (b) any
alteration or modification of the SIVAULT Product Licensee makes without
the prior written consent of SIVAULT.
9.3 For any SIVAULT Product that becomes the subject of a copyright, patent
infringement or other intellectual property action, SIVAULT shall, at
its sole option and expense, either: (a) procure for Licensee the right
to continue marketing and distributing such SIVAULT Product; (b) replace
such SIVAULT Products with comparable non-infringing products; or (c)
modify the SIVAULT Product to become non-infringing without loss of
functionality. If none of the foregoing alternatives is available
SIVAULT shall refund to Licensee any moneys paid in respect of the
License Fees of such SIVAULT Product on a depreciated basis over a three
(3) year period straight-line basis. The foregoing states the entire
obligations of SIVAULT with respect to any infringement of intellectual
property rights of any third party.
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10. SURVIVAL. Upon expiration or termination of this Agreement, Licensee
will remain liable for all amounts due hereunder as of the effective date of
such expiration or termination. The provisions of Sections 1.2, 4, 5, 6, 7, 8,
9, 11, 13 and 14 will survive expiration and termination of this Agreement as
will end user license agreements granted to License's customers pursuant hereto.
11. GOVERNING LAW AND SEVERABILITY. This Agreement will be governed by and
construed in accordance with the local laws of the State of New York without
regard to those provisions related to choice of law. This Agreement will not be
governed by the United Nations Convention for the international sale of goods,
if applicable. If for any reason a court of competent jurisdiction finds any
provision of this License, or portion thereof, to be unenforceable, that
provision of the License shall be enforced to the maximum extent permissible so
as to effect the intent of the parties, and the remainder of this License shall
continue in full force and effect.
12. ENTIRE AGREEMENT. This Agreement and the Appendixes hereto, which are
incorporated by reference, constitute the entire agreement between the parties
pertaining to the subject matter hereof, and all written or oral statements and
representations previously made or existing between the parties pertaining to
such subject matter are expressly superseded. Any amendments to this Agreement
must be in writing signed by the parties.
13. NO WAIVER. No waiver of any provision of or any right or remedy under
this Agreement shall be effective unless in writing and executed by the party
waiving the right. Failure to properly demand compliance or performance shall
not constitute a waiver of a party's rights hereunder.
14. ASSIGNMENT. Neither party may not assign or otherwise transfer any
rights or obligations under this Agreement, in whole or in part, without the
written consent of the other party and any attempt to assign this Agreement
without such consent will be void. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
15. INDEPENDENT CONTRACTORS. The parties to this Agreement are independent
contractors and neither party will have the power to bind the other or incur
obligations on the other's behalf without the other's prior written consent. No
agency relationship between SIVAULT and Licensee is created by this Agreement.
16. NOTICES. All notices required or permitted under this Agreement shall be
written and may be made by fax, personal delivery, or certified or registered
mail (return receipt requested) to the address specified above, and with respect
to Licensee, with a copy to the General Counsel, (or such other address
specified by the receiving party) in writing and will be deemed effective upon
the date confirmed by the written delivery receipt generated by the machine or
courier delivering such notice. Proof of delivery by a national delivery service
shall be conclusive evidence of receipt. Notices shall be deemed received: (a)
when delivered personally; (b) when sent by confirmed facsimile (followed by the
actual document in air mail/air courier); or (c) one (1) business day after
deposit with a commercial express courier specifying next day delivery (or, for
international courier packages, two (2) business days after deposit with a
commercial express courier specifying two-day delivery) with written
verification of receipt.
17. THIRD PARTY BENEFICIARIES. This Agreement inures to the benefit of
Licensee's subsidiaries, and successor-in-interest, all of which shall have the
right to place purchase orders and receive services under the same terms and
conditions as Licensee; submission of an purchase order referring to this
Agreement shall constitute a binding agreement by such affiliate.
18. Captions. The section captions in this Agreement are for convenience of
reference only, and shall not affect the interpretation of the body of the
Agreement.
19. Execution by Counterparts. This Agreement may be executed by facsimile
and in one or more counterparts, each of which shall be deemed an original and
all of which shall constitute one and the same Agreement.
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In Witness whereof, the parties duly authorized representatives hereto have
executed this Agreement effective as of the date first written above.
SiVault Systems, Inc. Licensee
By: /s/ Xxxxxxx Xxx-Beer By: /s/ Xxx Xxxxxxx
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Print Name: Xxxxxxx Xxx-Beer Print Name: Xxx Xxxxxxx
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Title: Chairman, SyVault Syst. Title: CFO
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APPENDIX A
PRODUCTS, SERVICES, AND TECHNOLOGY
1. Products and services
i. SiPay - a SiVault Check-21 compliant payment solution as per
current specification as listed in Appendix F
ii. SiPay Mobile - a SiVault mobile payment processing solution as
per current specification as listed in Appendix F
iii. SiSign - a SiVault identity verification solution as per current
specification as listed in Appendix F
iv. SiSeal - a SiVault Systems distributed access permissioning
solution
v. All software related to the SiVAULT Products as listed
vi. All products, software and services related to SIVAULT's Receipt,
Capture and Storage System (currently known as "ReceiptCity")
2. Technology
i. SiVault technology pertinent to distributed security systems,
distributed access permissioning systems, and digital rights
management systems, as disclosed in the US Patent Application
09/930,029 and its derivative patent applications
ii. SiVault technology pertinent to payment methods compliant with
Check-21 regulation, as disclosed in the US Provisional Patent
Application 60/650,856 and its derivative applications
iii. SiVault technology pertinent to identity establishing services as
disclosed in the US Provisional Patent Application 60/618,443 and
its derivative applications.
iv. SiVault technology pertinent to processing payments via short
message service, as disclosed in the US Provisional Patent
Application 60/681,902
v. All computer readable source and data files related to
implementing and deploying SIVAULT's Products or services
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APPENDIX B
A. LICENSE FEES AND PAYMENT TERMS
B. Intentionally Blank
C. TERRITORY
A. LICENSE FEES
License fees.
i. Licensee shall pay SIVAULT a licensing fee of thirty percent
(30%) of that portion of the transaction fee that pertains
to SIVAULT's Products and Licensee's derivative works for
each transaction; and
ii. Licensee shall pay SIVAULT thirty percent (30%) of licensing
fees generated by sub-licensing SIVAULT's Products
B. Intentionally Blank
C. TERRITORY
Worldwide
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APPENDIX C
MAINTENANCE TERMS
Except as specifically provided herein, Licensee shall be responsible for
technical support to the end-users. SIVAULT shall provide the following
maintenance and support for the SIVAULT Products:
A. Definitions. For purposes of this Appendix, the following terms shall have
the following meanings. Any terms not defined in this Appendix shall have
the meaning set forth in the Agreement.
1. Error(s): means any verifiable and reproducible failure of the SIVAULT
Products to materially conform to the specification for such SIVAULT
Products. The term "Error" shall not include any failure of the
SIVAULT Products that: (a) results from the misuse or improper use of
the SIVAULT Products; (b) does not materially affect the operation and
use of the SIVAULT Products; (c) results from any modification to the
SIVAULT Products not made by or on behalf of SIVAULT; or (d) results
from the failure to incorporate or use any Updates or bug fixes after
such are made available to Licensee by SIVAULT.
2. Error Correction(s): shall mean either (a) a modification or addition
to or deletion from the SIVAULT Products that, when made to such
SIVAULT Products, materially conforms the SIVAULT Products to the
specifications for such SIVAULT Products; or (b) a procedure or
routine that, when observed in the regular operation of the SIVAULT
Products, eliminates the material adverse effect of such Error on
Licensee or its customers.
3. Major Error: means any demonstrable Error in the SIVAULT Products
that: (a) causes the SIVAULT Products to have a significant loss of
intended function as set forth in the specifications for the SIVAULT
Products; (b) causes or is likely to cause data to be lost or
destroyed; or (c) prevents the SIVAULT Products from being installed
or executed on the properly configured environment.
4. Moderate Error: shall mean any demonstrable Error in the SIVAULT
Products that: (a) causes the SIVAULT Products to operate improperly;
or (b) produces results materially different from those described in
the specifications, but which error does not rise to the level of a
Major Error.
5. Minor Error: shall mean any demonstrable Error that: (a) causes a
function to not execute as set forth in the specifications for the
SIVAULT Products, without a significant loss of intended
functionality; or (b) disables one or more nonessential functions.
6. First Level Technical Support: shall mean Licensee's or its authorized
technical support agents' attempts to identify and resolve Errors
remotely, by telephone, e-mail and fax communication.
7. Second Level Support shall mean support of Licensee's or its
authorized technical support agent's First Level Technical Support
personnel to identify and resolve Errors remotely, by telephone,
e-mail or fax communication.
8. Workaround: shall mean that SIVAULT has diagnosed the Error and has
implemented, or enabled Licensee to implement, a temporary solution
that allows the SIVAULT Products to regain functionality and provide
all major functions in accordance with the specifications for the
SIVAULT Products.
9. Update: shall mean a version of the SIVAULT Products containing
changes, including but not limited to, bug fixes, correction of errors
and minor optimization improvements not rising to the level of an
Upgrade. An Update shall mean for example the change from version x.1
to x.2 and/or version x.x.1 to x.x.2.
10. Upgrade: shall mean a version of the SIVAULT Products containing
changes, including but not limited to enhancements, major optimization
improvements and new functionality for which SIVAULT charges similarly
situated Licensees. An Upgrade shall mean for example the change from
version 2.x.x to 3.x.x.
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B. Services
1. Licensee Responsibilities. Licensee will provide all on site technical
support with respect to SIVAULT Products. Licensee agrees to notify
SIVAULT in writing promptly following the discovery of any Error.
SIVAULT agrees to make available to Licensee a list of known Errors
and to notify Licensee in writing promptly following the discovery of
any Error. Further, upon discovery of an Error, Licensee agrees, if
requested by SIVAULT, to submit to SIVAULT a list of output and any
other data that SIVAULT may reasonably require to reproduce the Error
and the operating conditions under which the Error occurred or was
discovered. All information, oral or written, communicated between the
parties concerning any Errors, is deemed to be Confidential
Information and shall be governed by Section 8 of the Agreement.
2. SIVAULT Telephone and Online Support. Technical support communications
between Licensee and SIVAULT will include electronic mail and
telephone. SIVAULT's support e-mail address is: xxxxxxx@xxxxxxx.xxx.
The technical support telephone is 000.000.0000, and will be
adequately staffed by a customer technical support representative
during SIVAULT's normal business hours of 8 a.m. to 5 p.m. Pacific
time ("Support Hours"). Voicemail is provided when the line is busy
and during non-business hours.
3. SIVAULT Response to Errors. SIVAULT will provide Second Level Support
to Licensee to ensure a consistent and high level of operation of the
SIVAULT Products. In event Licensee notifies SIVAULT of an Error in
the SIVAULT Products, SIVAULT will provide Second Level Support to
Licensee or Licensee's authorized technical support agent to
facilitate the implementation of an Error Correction to the SIVAULT
Products. SIVAULT shall use commercially reasonable efforts to correct
Errors in accordance with the below response times, with as little
disruption to Licensee's service as commercially practicable.
(a) Major Errors. SIVAULT shall, within four hours of the receipt of
notice of any Major Error, contact Licensee to verify such Major
Error and begin a resolution process. Upon SIVAULT's verification
of such Major Error, SIVAULT will use its commercially reasonable
efforts to provide a Workaround for such Major Error, and will
use its commercially reasonable efforts to provide an Error
Correction for such Major Error until such Error Correction is
provided.
(b) Moderate Errors. SIVAULT shall, within 24 hours of the receipt of
notice of any Moderate Error, contact Licensee to verify such
Moderate Error. Upon SIVAULT's verification of such Moderate
Error, SIVAULT will use its commercially reasonable efforts to
provide a Workaround for such Moderate Error. SIVAULT will
provide an Error Correction for such Moderate Error in the next
scheduled maintenance release of the SIVAULT Products.
(c) Minor Errors. Upon SIVAULT's receipt of notice of a Minor Error
and upon SIVAULT's verification of such Minor Error, SIVAULT will
initiate work to provide Error Correction for such Minor Error in
the next regular release of the SIVAULT Products.
C. Exclusions from Support Services. Support Services under this Appendix C
include Second Level Support for the SIVAULT Products. Support Services do
not include support for any failure or defect in the SIVAULT Products
caused by any of the following.
1. the improper use, alteration, or damage of the SIVAULT Products by
Licensee or persons other than SIVAULT employees or consultants; or
2. modifications to the SIVAULT Products not made or authorized by
SIVAULT, unless such modifications were made by a SIVAULT employee,
subcontractor, agent, or other third party acting on behalf of
SIVAULT.
D. Updates and Upgrades. SIVAULT will make Updates and Upgrades (as defined
above) available to Licensee from time to time upon the completion of such
Updates and Upgrades.
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APPENDIX D
Intentionally Blank
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APPENDIX E
OTHER OBLIGATIONS AND COMMITMENTS OF LICENSEE AND SIVAULT
A. MARKETING. Neither SIVAULT or Licensee may each issue a press release
announcing the parties' relationship under this Agreement, without the other
party's prior written consent. Should the parties choose to issue such a press
release, the parties shall work together in good faith to generate the press
release. In connection with License's marketing and distribution of the SIVAULT
Product, Licensee shall include appropriate SIVAULT logos and trademarks in its
marketing materials and manuals in accordance with the provisions of Section 7
hereof and shall in all instances of advertising, marketing and sales indicate
that SIVAULT's products are included within Licensee's products. Each party may
include the name, address, telephone number and web site address (hyperlink) of
the other party on its own web site. Licensee shall have the right to distribute
to its customers any marketing material received from SIVAULT. SIVAULT may have
the right to use Licensee's name in advertising, public relations, marketing,
white papers, case studies, promotional events and any other reasonable
commercial activity; provided however, that SIVAULT shall submit to Licensee all
promotional material relating to such activities for prior written approval,
SIVAULT shall not publish, use or distribute any promotional material which has
not been approved in advance and in writing by Licensee. Each party shall
provide the other party with a list of product names, trade names, trademarks,
registered trademarks and logos ("Marks") related to this Agreement. Each party
is hereby granted the right to use such Marks for the purposes hereof, provided
each party shall ensure that each reference to and use of any of the other
party's Marks is in a manner approved by that party and is accompanied by an
acknowledgement, in that party's-approved form, that the same is the party's
Marks. No grant of rights or a license to use either party's Marks may be
assumed or implied by this Agreement. Neither party shall claim any ownership
rights in the other party's Marks, and all rights not expressly granted herein
are reserved to each party.
B. OTHER OBLIGATIONS AND COMMITMENTS OF LICENSEE
a. ORDERING AND DELIVERY. Rolling Forecasts. On or about the first
business day of each calendar quarter during the term of this Agreement,
Licensee shall provide SIVAULT with a good faith but non-binding three
(3) month forecast ("Quarterly Forecast") of Licensee's projected
purchases of SIVAULT Products.
b. ANNUAL ESTIMATES. Upon placing its initial purchase order for
any SIVAULT Product, Licensee shall provide SIVAULT with a reasonable
good faith estimate of its expected purchases for such SIVAULT Product
(Annual Estimate") for the twelve (12) month period beginning on the
date of such purchase order. Each such twelve (12) month period, and
such succeeding twelve (12) month period, shall be known as a "Twelve
Month Product Period." No later than thirty (30) days prior to the
beginning of each subsequent Twelve Month Product Period during the term
of this Agreement, Licensee shall provide SIVAULT with an Annual
Estimate for such subsequent Twelve Month Product Period.
c. PURCHASE ORDERS. Licensee shall provide SIVAULT with written
purchase orders for SIVAULT Products. Notwithstanding anything to the
contrary, each purchase order placed by Licensee shall be governed by
the terms of this Agreement, and any terms set forth in a purchase order
that are additional to or inconsistent with this Agreement shall be
deemed stricken from such purchase order. Each purchase order shall be
subject to SIVAULT's acceptance, and upon acceptance shall be
non-cancelable and non-reschedulable by Licensee, unless requested in
writing ten (10) days from receipt by SIVAULT of Licensee's request for
change.
d. SHIPMENT. SIVAULT's normal lead time for shipment of SIVAULT
Products is fifteen (15) days. SIVAULT shall use commercially reasonable
efforts to meet Licensee's requested shipment schedule, but in no event
shall SIVAULT be liable for failure to meet such schedule. SIVAULT shall
ship the SIVAULT Products to Licensee FCA (designate Hypercom
Corporation location) (or other such location as may be specified in
writing and agreed to by the parties), at which point title to the media
containing the SIVAULT Products, and risk of loss, shall pass from
SIVAULT to Licensee. SIVAULT shall not at any time be liable for any
failure (or delay) in providing quantities of SIVAULT Products in excess
of 200% of the amounts of such SIVAULT Products specified in the
Quarterly Forecast applicable thereto.
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e. ACCEPTANCE. Licensee shall inspect all SIVAULT Products promptly
upon receipt thereof for proper version numbers and serial numbers.
Licensee may reject any incorrectly shipped SIVAULT Product by returning
the defective SIVAULT Product FCA (point of shipment). Any SIVAULT
Product not returned to and received by SIVAULT within two (2) weeks
from the date of receipt by Licensee for a domestic Licensee, or four
(4) weeks from the date of receipt by Licensee for an international
Licensee, shall be deemed accepted by Licensee.
f. AUDIT RIGHTS. Licensee shall keep and maintain sufficient
records to determine that Licensee is in compliance with the terms and
conditions of this Agreement. During the term of this Agreement, SIVAULT
shall have the right to have an independent certified public accountant
(or equivalent) audit the records and accounts of Licensee to determine
whether Licensee is in compliance with the terms of this Agreement. Any
such audit shall be performed only during Licensee's normal business
hours, and shall be performed in such a manner as to avoid unreasonable
interference with Licensee's business operations. The Licensee shall
promptly remit to SIVAULT any underpayment discovered by the auditor.
Should an audit reveal that the aggregate payments made to SIVAULT for
all SIVAULT Products over the course of any calendar quarter represent
an underpayment of more than ten percent (10%) of the aggregate amount
actually due for such calendar quarter (a "Material Payment
Noncompliance"), the Licensee shall pay to SIVAULT a penalty of ten
percent (10%) of the amount actually due. If Licensee has two (2) or
more Material Payment Noncompliances in any twelve (12) month period, or
has five (5) or more Material Payment Noncompliances throughout the term
of this Agreement, SIVAULT may terminate this Agreement for material
breach. The audits are limited to once per calendar year, and further
limited to once after expiration or termination of this Agreement,
except that following any audit that reveals a Material Payment
Noncompliance, SIVAULT may demand additional quarterly follow-up audits
(on the same terms as set forth above) until the auditor in its
professional judgment determines that Licensee is in compliance with the
terms of this Agreement. Any and all costs associated with an audit
shall be borne solely by SIVAULT.
g. Training. SIVAULT shall, at its sole expense, provide training
for a reasonable number of Licensee technical personnel, at SIVAULT's
facilities in San Jose, California in the use, sales, installation and
maintenance of the SIVAULT Products. Licensee shall be responsible for
the salary, subsistence and travel expenses of any Licensee personnel
receiving such training.
h. INSTALLATION. Licensee shall be responsible, at its expense, for
installation of the SIVAULT Products at End User sites in the Territory.
If Licensee requests that SIVAULT's engineers or other personnel be on
site for any installation of any SIVAULT Product, and SIVAULT agrees to
provide such personnel, Licensee shall pay SIVAULT's then-current
standard consulting fees for such support, plus reimburse SIVAULT for
reasonable travel and accommodation expenses incurred in connection
therewith.
i. SUPPORT BY LICENSEE. Licensee shall be solely responsible for
providing all maintenance and support to its End Users in connection
with installation, operation and use of the SIVAULT Products (including,
without limitation, software support for configuration, networking and
other routine operational issues). Licensee shall promptly report to
SIVAULT all program errors of which Licensee becomes aware, and fully
cooperate (at SIVAULT's cost) with SIVAULT in reproducing, testing, and
remediating such program errors.
C. OTHER OBLIGATIONS AND COMMITMENTS OF SIVAULT
a. SUPPLY OBLIGATIONS OF SIVAULT. SIVAULT agrees, during the term
of this Agreement, to: (i) supply Licensee with SIVAULT Products ordered
pursuant this Agreement, and (ii) furnish Licensee, at no cost, with a
reasonable quantity of available catalogs, quotation sheets,
specifications, and technical data documents for promotion of sales of
SIVAULT Products.
b. STATEMENT OF LIMITED EXCLUSIVITY. SIVAULT agrees that during the
initial six (6) months of the term of this Agreement to grant Licensee
exclusivity relative to Licensee's point of sale business and refrain
from entering into a substantially similar licensing agreement that
covers one or more SIVAULT Products listed in Appendix A with any
person, company or entity other than the Licensee.
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