Exhibit 1
INTERIM WORK AND ASSIGNMENT AGREEMENT
THIS INTERIM WORK AND ASSIGNMENT AGREEMENT (the "INTERIM AGREEMENT") is
dated as of June 24, 2000 by and between ACS Retail Solutions, Inc., a Delaware
corporation ("ACS"), and Greenland Corporation, a Nevada corporation ("GLCP"),
and is entered into in anticipation of entering into a long term services
agreement, currently under negotiation between the parties (the "SECONDARY
AGREEMENT") and which is related to another long term contract currently under
negotiation between ACS and 7-Eleven, Inc. (the "PRIMARY AGREEMENT") for the
Pilot Program (as defined below).
WHEREAS, 7-Eleven is considering providing automated check cashing
pilot services known as the X.xxx(TM) Pilot Automated Check Cashing Services in
approximately 200 7-Eleven stores in a geographic area to be determined by
7-Eleven (the "PILOT PROGRAM");
WHEREAS, GLCP offers key services and hardware critical to the Primary
Agreement and in order to meet the anticipated schedule deadlines, GLCP agrees
to commit prior to finalization of any Secondary Agreement skilled personnel and
resources to ACS for development of automated check cashing services software
("PROJECT SOFTWARE") on a project by project basis, such project(s) to be
undertaken solely for or in anticipation of the Pilot Program (the "PROJECT" or
the "PROJECTS"), with the full and complete understanding and representations by
ACS that said services will be paid by ACS in accordance with the terms of this
Interim Agreement.
WHEREAS, the parties understand that, for the purposes of this Interim
Agreement, GLCP is billing said services at reduced costs subject to the terms
of this Interim Agreement ("REDUCED COSTS").
1. SCOPE. By entering into this Interim Agreement and according to the
terms hereunder, (i) GLCP agrees to provide information technology and related
services for the Project or the Projects, and (ii) ACS agrees to pay for said
services in connection with the Project or the Projects.
2. AUTHORIZATION AND PAYMENT. Current Projects were commenced in April
2000 pursuant to the Statement of Work - ACS Phase I - Check Cashing Processing
Support dated 06/07/00 ("SOW"). Any changes in or additions to the SOW or
services rendered thereunder must be approved by both parties in writing or
pursuant to electronic mail consistent with past practices; provided, however,
any changes or additions to the SOW significant enough to require additional
costs or payments by ACS must be approved in advance by a writing (which may be
faxed) signed by the individual at ACS designated for notices hereunder. Once a
Project begins, GLCP will provide monthly invoices to ACS which shall be
substantiated with all reasonable documentation and specificity requested by ACS
("INVOICE"). ACS shall pay Invoices within thirty (30) days of receipt of
invoice by ACS, subject to approval by ACS which shall not be unreasonably
withheld or delayed. ACS agrees that the services rendered by GLCP through April
2000 as evidenced by Invoice dated May 1, 2000 in the amount of $33,309 have
been approved by ACS and payment of said Invoice will be made not later than
June 26, 2000.
3. OWNERSHIP.
(a) ACS shall be the sole and exclusive owner of the software,
any enhancements to and modifications of the software and any other work product
developed or prepared by GLCP, in each case only to the extent developed,
enhanced, modified or prepared pursuant to a Project (collectively, the "WORK
PRODUCT"). Work Product also includes any and all original works of authorship,
by way of example and without limitation: (i) papers, reports, manuals,
documents, drawings, analytics and software (including without limitation all
programs, object code, Source Code, outlines, routines, subroutines, revisions,
supplements, modules, and upgrades, in each case, in any language, format or
medium); (ii) inventions, formulas, techniques, processes, ideas, algorithms,
discoveries, designs, developments, and improvements embodied thereby, which may
be delivered to ACS or conceived, created, compiled, improved, modified,
performed or produced in the direct or indirect course of GLCP's retention by
ACS hereunder for a Project; and (iii) all foreign and domestic, registered and
unregistered, copyrights or patents, applications for registrations therefor and
other proprietary rights related to any of the foregoing, specifically including
without limitation any trade secrets.
(b) Notwithstanding the foregoing, Work Product shall not
include any software or original works of authorship developed or created by
GLCP, its employees, agents and consultants (i) prior to the date of this
Agreement or (ii) outside of the scope of a Project. All Work Product shall be
deemed to be works made for hire for, and the exclusive property of, ACS. To the
extent that any such Work Product is not considered a work made for hire under
applicable law or GLCP obtains any right, title or interest in or to any Work
Product under this Interim Agreement, GLCP hereby irrevocably assigns, agrees
that such will be automatically assigned and agrees to assign to ACS, without
further consideration, all of GLCP's right, title and interest (including
without limitation good will) to such Work Product. GLCP shall execute or cause
its agents, employees or subcontractors to execute any documents and take any
other actions reasonably requested by ACS to accomplish the purposes of this
Interim Agreement or further evidence such assignment to, or ownership by, ACS.
If for any reason ACS fails to obtain ownership of any Work Product and such
ownership is vested in GLCP or any GLCP agent, employee or subcontractor, GLCP
agrees to (i) promptly and legally transfer such work in its entirety (including
without limitation good will) to ACS wherever possible and (ii) wherever not
possible, promptly grant to ACS or obtain and promptly act on the right to grant
to ACS, a perpetual, exclusive, royalty-free and world-wide transferable license
to use the Work Product for any purpose, and to assign and sublicense its
license rights. As used herein, "SOURCE CODE" means computer software in human
readable form in an English-like high-level computer language such as FORTRAN,
C, PASCAL or LISP, or in a relatively low-level language such as the assembly
language for a particular processor, as well as such explanatory materials and
documentation (including without limitation any associated production tools,
command files and regression tests with respect to the content and structure of
the software), including without limitation documentation that has a functional
and internal description of the code, including without limitation programmer's
notes and any other explanatory material reasonably necessary to understand the
specified functions of the code. Source Code also includes the source code
building environment, consisting of control files, make files, environment
variables, symbols and anything else required to compile the source code into
object code that is executable by the CPUs for which the software is intended.
(c) At any time during the term of this Agreement, ACS may
request and GLCP shall deliver or cause to be delivered to ACS, on demand a
current copy of the Project Software and such other Work Product as ACS shall
specify. As used herein, "DEFAULT" shall mean the occurrence of any of the
following: (i) GLCP becomes subject to a voluntary or involuntary bankruptcy or
similar proceeding; (ii) GLCP makes an assignment for the benefit of all or
substantially all of its creditors; (iii) an act of God occurs that would likely
prevent GLCP from satisfying any of the responsibilities (excluding Help Desk
responsibilities) assigned to ACS/Greenland (such responsibilities excluding
Help Desk responsibilities being referred to herein as the "GLCP OBLIGATIONS")
on or before the sub-milestone dates (each a "SUB MILESTONE DEADLINE") required
in the then current SEI X.xxx Project Sub-Milestone Report (as updated, the
"PROJECT SUB-MILESTONE REPORT"); or (iv) GLCP fails (except to the extent such
failure is caused by another person or entity listed in the Project
Sub-Milestone Report) to discharge fully any GLCP Obligation within forty-five
(45) days of the Sub Milestone Deadline applicable to such GLCP Obligation in
the Project Sub-Milestone Report. Upon the occurrence of a Default, ACS may
request and GLCP shall deliver or cause to be delivered to ACS a current copy of
the Project Software and such other Work Product as ACS shall specify, together
with such other information, rights and privileges of GLCP, its subsidiaries and
affiliates (collectively "NON-WORK PRODUCT") as would enable ACS to provide the
Services, as such term is defined in the Mutual Confidentiality Agreement dated
as of April 14, 2000 between the parties hereto (the "CONFIDENTIALITY
AGREEMENT"). On the occurrence of a Default, any Non-Work Product that is
protected intellectual property shall be deemed to be licensed to ACS on a
perpetual, non-exclusive, transferable basis (the "LICENSE") with a warranty of
non-infringement with respect to the non-Work Product substantively similar to
the provisions of Section 4 of this Interim Agreement. The compensatory and
other terms and conditions of such license will thereafter be negotiated by ACS
and GLCP in good faith and on terms and conditions consistent with prevailing
industry standards and rates. If ACS and GLCP are unable to agree on such other
terms and conditions, the parties will submit to binding arbitration. If GLCP
Obligations under the Project Sub-Milestone Report remain, ACS shall surrender
the License and Non-Work Product to GLCP upon GLCP (i) becoming able to perform
such obligations on or before the Sub Milestone Deadlines pursuant to the
Project Sub-Milestone Report, and (ii) reimbursing ACS for its costs and
expenses incurred in exercising its rights under this Section 3(c) and
performing the GLCP Obligations.
4. NON-INFRINGEMENT. GLCP shall perform its obligations under this
Interim Agreement and all Projects in a manner that does not infringe, or
constitute an infringement or misappropriation of, any patent, copyright,
trademark, trade secret or other proprietary rights of another person. GLCP
represents that the Project Software, any and all software it uses or intends to
use hereunder and the services performed by GLCP hereunder do not, and will not,
infringe any patent, copyright, trade secret or any other intellectual property
interest owned or controlled by any other person.
5. SUBCONTRACTING.
(a) GLCP shall not delegate or subcontract (collectively
"SUBCONTRACT") any material portion of its obligations under this Interim
Agreement to a consultant or other third party that GLCP does not have a
pre-existing relationship with and/or that GLCP does not directly supervise
without ACS's prior written consent, which may be not be unreasonably withheld;
provided, however, GLCP shall only subcontract with consultants or third parties
which GLCP knows, by experience or reputation, to be able to complete such work
assignments
on a timely, professional and competent basis. Prior to any approval, all
delegates and subcontractors (collectively "SUBCONTRACTORS") shall execute
documents binding such subcontractor to terms substantially similar to the terms
hereunder for the benefit of ACS, as well as appropriate confidentiality and
non-disclosure agreements that are at least as protective of ACS as the
Confidentiality Agreement.
(b) If GLCP desires to enter into a subcontract requiring ACS
consent, it shall submit to ACS in writing, a proposal detailing (i) the
specific tasks GLCP proposes to subcontract, (ii) the reason for having a
subcontractor perform such tasks instead of GLCP, (iii) the identity and
qualifications of the proposed subcontractor, and (iv) any other information
reasonably requested by ACS or relevant to ACS's approval of the subcontractor.
GLCP shall not disclose any ACS or 7-Eleven confidential information to any
subcontractor until such subcontractor has agreed in writing to assume the
confidentiality obligations described above.
(c) ACS may revoke approval of a subcontractor previously
approved if, in ACS's good faith opinion, (i) a subcontractor is acquired or
otherwise becomes affiliated with a competitor of ACS or 7-Eleven, (ii) the
subcontractor's performance has been deficient, (iii) doubt exists concerning
the subcontractor's ability to render future performance, or (iv) there have
been material misrepresentations by or concerning the subcontractor. Upon such
revocation of approval, GLCP shall remove such subcontractor from performing any
services hereunder.
GLCP shall remain liable for obligations performed by subcontractors to
the same extent as if a GLCP employee had performed such obligations, and for
purposes of this Interim Agreement such work shall be deemed work performed by
GLCP. If GLCP believes a subcontractor breaches a subcontract or becomes aware
of a possible breach of a subcontract, GLCP shall notify ACS and provide ACS
with such information relating to the actual or alleged breach as ACS may
reasonably request. Any breach of a subcontract shall constitute a breach of
this Interim Agreement and shall give ACS the right, but not the obligation, to
terminate the particular Project, this Interim Agreement and/or any related
Project.
6. TERM. This Interim Agreement, subject to the terms and conditions
set forth herein, shall remain in effect until such time as the Secondary
Agreement and Primary Agreement are each executed but in no event shall this
Interim Agreement remain in effect for a period to exceed one hundred eighty
(180) days from the execution date ("TERMINATION DATE") unless extended by
mutual agreement of ACS and GLCP.
7. TERMINATION. This Interim Agreement shall terminate upon the earlier
of: (i) execution of both the Secondary Agreement and Primary Agreement, (ii)
the occurrence of the Termination Date, or (iii) failure of ACS to pay any
Invoice within ten (10) days after receipt of written notice from GLCP that such
Invoice has not been paid. Upon termination for either (ii) or (iii) GLCP may
cease providing all services.
8. NOTICES. All notices will be given in writing to the respective
parties at the following addresses, unless another address shall have been
designated in writing, and will be deemed delivered when delivered by hand or
when sent by and thereafter delivered by one of the following methods of
delivery: (i) Federal Express or other overnight courier service with a reliable
system for tracking delivery, or (ii) registered or certified mail, postage
prepaid, return receipt requested.
If to ACS:
ACS Retail Solutions, Inc.
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxx, Xx.
With copies to:
ACS Retail Solutions, Inc.
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: General Counsel, Legal Department
If to GLCP:
Greenland Corporation
0000 Xxxxxxx Xxx Xxx, Xxxxx X
Xxxxxxxxx XX 00000
Attn: Xxxxx X. Xxxxxxxx, CEO
With copies to:
Greenland Corporation
0000 Xxxxxxx Xxx Xxx, Xxxxx X
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx General Counsel, Legal Department
9. ENTIRE AGREEMENT; RELATIONSHIP. This Interim Agreement, together
with the Confidentiality Agreement, contains the entire understanding between
the parties relating to the subject matter hereof and supersedes all prior
agreements, proposals, representations and understandings between the parties
relating to the subject matter hereof. GLCP shall be an independent contractor
with respect to its services performed hereunder. Neither GLCP nor its
consultants, subcontractors, nor their employees, shall be deemed to be the
servants, employees, or agents of ACS. Nothing in this Interim Agreement or
otherwise shall be deemed to create the relationship of employer and employee,
principal and agent, partners, or a joint venture between the parties. GLCP
shall have no right or authority to incur obligations of any kind in the name of
or bind ACS to any contract or other obligation and all contracts and
obligations entered into by GLCP in the performance of or in connection with its
services hereunder shall be entered into by GLCP as principal. GLCP is not
entitled to, and hereby waives and releases any and claims to, any benefit,
profit-sharing, compensation, insurance, welfare or other plan offered by ACS or
its affiliates. GLCP acknowledges and agrees that ACS has no obligation to pay
any withholding or other taxes with respect to compensation of GLCP pursuant to
this Interim Agreement.
10. ASSIGNMENT. ACS may assign and transfer its rights hereunder in
whole or in part to 7-Eleven, designees of 7-Eleven or other persons. GLCP may
not, without the prior written consent of ACS in its sole discretion, assign or
transfer this Interim Agreement.
11. AMENDMENTS AND MODIFICATIONS. This Interim Agreement may not be
amended, modified, superseded or canceled and none of the terms, provisions,
covenants, representations,
warranties or conditions may be waived, except by a written instrument executed
by an executive officer of each party waiving compliance.
12. WAIVERS. No failure by either party to exercise any right arising
from a default by the other party shall impair that right or constitute a waiver
of it. No waiver by any party of any condition or breach of any term, provision,
covenant, representation or warranty, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach, or a waiver of any other
condition, or breach of any other term, provision, covenant, representation or
warranty.
13. APPLICABLE LAW. All questions concerning the validity,
interpretation and performance of this Interim Agreement shall be governed by
and decided in accordance with the laws of the State of Texas, exclusive of
conflicts of laws principles.
14. SEVERABILITY. If any court of competent jurisdiction or arbitration
panel, as the case may be, judges any provision of this Interim Agreement to be
invalid, that judgment will not affect the remainder of this Interim Agreement.
15. PRESS RELEASES. Neither party shall issue a news release, public
announcement, advertisement or other form of publicity in connection with this
Interim Agreement without the prior approval of the other (which will not be
unreasonably withheld or delayed).
16. COUNTERPARTS. This Interim Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any signature page
delivered by fax machine shall be binding to the same extent as an original
signature page. Any party who delivers by fax machine a signature page agrees to
deliver promptly upon request an original counterpart signature page to any
party who requests it.
17. THIRD PARTY BENEFICIARY. The parties agree that this Interim
Agreement is for the sole benefit of the parties and their permitted assigns and
is not intended to confer legal rights or benefits to any other party; there are
no other beneficiaries of this Interim Agreement or any Project agreement.
18. NON-APPLICABILITY OF UCITA. To the extent the State of Texas passes
a version of the Uniform Computer Information Transactions Act ("UCITA"), UCITA
shall not apply to this Interim Agreement, except where mandated by Texas law.
The parties hereby agree to attempt in good faith to negotiate independently any
clause to which UCITA would otherwise apply. If the parties cannot so negotiate,
the parties shall appoint an independent person to re-draft such provision in
good faith and in the spirit of this Interim Agreement.
19. ARBITRATION OF DISPUTES.
(a) Except as set forth in SECTION 19(B) below, any controversy or
claim arising out of or relating to this Agreement, or any alleged breach
hereof, including any controversy regarding the arbitrability of any dispute,
shall be settled at the request of either party by binding arbitration in
Dallas, Texas before and in accordance with the then existing Commercial
Arbitration Rules of the American Arbitration Association (the "RULES"). In any
dispute in which the amount in controversy is less than Two Hundred Fifty
Thousand Dollars ($250,000), there shall be one (1) arbitrator agreed to by the
parties or, if the parties are unable to agree within thirty (30) days after
demand for arbitration is made, selected in accordance with the Rules. In all
other cases there shall be three (3) arbitrators, one (1) of whom shall be
selected by Buyer within
thirty (30) days after demand for arbitration is made, one (1) of whom shall be
selected by Seller within thirty (30) days after demand for arbitration is made,
and one (1) of whom shall be selected by the two party-appointed arbitrators
within thirty (30) days after their selection. If one or more arbitrator(s) is
not selected within the time period stated in the preceding sentence, such
arbitrator(s) shall be selected pursuant to Rule 13 of the Rules. Any
arbitrator(s) proposed by the American Arbitration Association shall have at
least ten (10) years of experience in complex, commercial technology engagements
in the area that is generally the same as the technology issue that is the
subject of the dispute. Each party shall pay its own attorneys' fees and
one-half (1/2) of the other arbitration costs, subject to final apportionment by
the arbitrators. The arbitrators shall apply the law set forth herein to govern
this Agreement and shall have the power to award any remedy available at law or
in equity; provided, however, that the arbitrators shall have no power to amend
this Agreement. Notwithstanding the foregoing, if the arbitration award relates
to the terms and conditions of the license pursuant to Section 3(c) hereof, ACS
may elect to relinquish such license in lieu of payment or acceptance of such
arbitration award.
(b) Notwithstanding SECTION 19(A) above, the parties agree that in the
event of any breach or threatened breach of any provision of this Interim
Agreement concerning (i) confidential information, (ii) intellectual property
rights or (iii) other matters for which equitable rights may be granted, money
damages would be an inadequate remedy. Accordingly, such provisions may be
enforced by a preliminary or permanent, mandatory or prohibitory injunction or
other order of a court of competent jurisdiction without requirement or posting
of any bond.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of the parties has caused this Interim
Agreement to be signed and delivered by its duly authorized representative to be
effective as of the Execution Date.
ACS RETAIL SOLUTIONS, INC. GREENLAND CORPORATION
By: By:
------------------------- -------------------------------
Name: Name: Xxxxx X. Xxxxxxxx
----------------------- Title: CEO
Title:
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