Exhibit 10.24
TEAMING AGREEMENT: OASIS PRIME CONTRACTOR
THIS AGREEMENT is effective the 15th day of April, 2001
Between
OASIS TECHNOLOGY LTD. ("Oasis") whose principal place of business is at
00 Xxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx.
And
Schimatic Cash Transactions Xxxxxxx.xxx, Inc. doing business as Smart Chip
Technologies, with its head office at 000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, XX,
XXX 00000. ("SCTN")
WHEREAS
A. The Bank of Nova Scotia ("the Client") has invited or is expected to
invite Oasis to tender for an ePayment Solution ("the Project"); and
B. Oasis proposes to submit a tender ("the Tender") in respect of the
Project and wishes to have the Subcontractor collaborate with Oasis in
preparing and submitting the Tender and, in the event that the Tender
should be successful, perform the relevant part of the work in the
resulting contract as a subcontractor to Oasis; and
C. The Subcontractor wishes to act as provided in Recital B above
THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. The parties shall collaborate subject to the terms and conditions
specified in the attachment hereto entitled "General Terms and
Conditions for Tender Collaboration: Oasis Prime Contractor".
2. The Subcontractor's proposed share of the work to be performed, the
timetable therefor and other relevant matters shall be either as
specified in the attachment hereto entitled "Statement of
Subcontractor's Share of Work" or as agreed between the parties
pursuant to Clause 4.4 of the "General Terms and Conditions for Tender
Collaboration: Oasis Prime Contractor".
SCHIMATIC CASH TRANSACTIONS
XXXXXXX.XXX, INC. OASIS TECHNOLOGY LTD.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxxxx
-------------------------- ------------------------
Authorized Signature Authorized Signature
Name: Xxxxxxx Xxxxx Name: Xxxxx Xxxxxxxxx
------------------------ ----------------------
Type or Print Type or Print
Title: SVP Global Allliances Title: General Counsel
----------------------- ---------------------
Type or Print Type or Print
Schimatic Cash Transaction Xxxxxxx.xxx, Inc. July 6, 2001
Solstice BNS-SCTN Teaming Agreement 010713 Page 1
GENERAL TERMS AND CONDITIONS FOR TENDER COLLABORATION
OASIS PRIME CONTRACTOR
1. Definitions
1.1 "Agreement" means the signature sheet, these General Terms and
Conditions for Tender Collaboration: Oasis Prime
Contractor, the Statement of Subcontractor's Share of
Work (if any) along with any variations which shall
have been agreed in writing between the parties.
1.2 "Client" means the entity referred to as such in the signature
sheet.
1.3 "Confidential means any document, material, idea, data or other
Information" information which relates to the research and
development, trade secrets or business affairs of
Oasis and its employees, clients, subsidiaries,
affiliates and agents supplied to the Subcontractor
pursuant to this Agreement and like information
provided to Oasis by the Subcontractor pursuant to
this Agreement (including, without limitation,
tangible or intangible code, data, technology,
algorithms, software programs, software source
documents, formulae, inventions--whether patentable
or not--and technical aspects or details of the
discloser's current, future and proposed services,
systems, techniques and products).
1.4 "Contract" means the agreement that Oasis intends to enter into
with the Client in the event that the Tender is
successful.
1.5 "Oasis" means the company referred to as such in the
signature sheet.
1.6 "Project" means that project described and referred to as such
in the signature sheet.
1.7 "Subcontract" means the agreement with respect to the Workshare
which the parties intend to enter into in the event
that the Tender should be successful and Oasis enters
into the Contract with the Client.
1.8 "Subcontractor" means the entity referred to as such in the signature
sheet.
1.9 "Subcontractor's means that proposal to be made by the Subcontractor
Proposal" to Oasis describing the Workshare, the contractual
terms applicable thereto, the price for the
Workshare, timescales for performance and proposal
validity.
1.10 "Tender" means that proposal for the Project referred to in
the signature sheet which Oasis is to prepare
pursuant to this Agreement and submit to the Client.
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1.11 "Workshare" means that part of the Project which will be
undertaken by the Subcontractor and which is either
described in the Statement of Subcontractor's Share
of Work or will be agreed between the parties
pursuant to Clause 4.4 herein.
2. Relationship
2.1 It is the intent of the parties that in the event that the Tender is
successful, Oasis shall become the prime contractor and will enter into
the Contract with the Client.
2.2 In negotiating the Contract with the Client, Oasis shall if necessary,
use all reasonable endeavours to obtain the Client's consent to Oasis
entering the Subcontract on the basis of the Subcontractor's Proposal.
2.3 The relationship between Oasis and the Subcontractor shall be that of
independent buyer and independent seller respectively, each in sole and
full control of its business. No partnership shall be constituted
between Oasis and the Subcontractor by virtue of this Agreement.
Neither party has power by virtue of this Agreement to make, vary or
release contractual obligations on behalf of the other party or to
represent that a partnership has been constituted, or that it has any
such power.
2.4 Neither party shall use other party's name or any trade, service or
proprietary name, xxxx or logo of the other party for advertising or
promotional purpose without first having obtained the other party's
written approval.
2.5 Neither party shall represent itself as the agent of the other party.
3. Costs
Each party shall meet its own costs and expenses incurred in the
preparation of the Subcontractor's Proposal and the Tender and in the
negotiation of the Contract and the Subcontract.
4. Subcontractor's Proposal and Preparation and Submission of Tender
4.1 Each party shall appoint a representative who shall be responsible for
liaison between the parties on all matters concerning the
Subcontractor's Proposal and the Tender and each such representative
shall have authority to communicate binding decisions for the party he
represents.
4.2 Oasis shall use all reasonable endeavours to keep the Subcontractor
promptly and fully notified of all the relevant requirements of which
the Subcontractor shall need to take account in preparing the
Subcontractor's Proposal.
4.3 The contractual terms applicable to the Tender, to the extent agreed to
by the Subcontractor, shall apply to the Subcontractor's Proposal
mutatis mutandis (i.e. with the appropriate changes being made to
reflect Oasis as the client and not the supplier).
4.4 The parties shall agree on:
(a) the Workshare;
(b) the form and timetable for submission of the Subcontractor's
Proposal; and
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(c) the basis on which the Subcontractor's Proposal will be priced
and its validity period,
all of which shall take account of, among other things, experience of
the Subcontractor in relation to work of the type to be proposed in the
Tender, the timetable for submission of the Tender and the period of
validity and the pricing basis which Oasis shall propose in the Tender.
No pricing for the Workshare or for the licensing of the
Subcontractor's software products is binding on the Subcontractor
without the express written approval of the Subcontractor.
4.5 Where appropriate, Oasis may require the Subcontractor to submit draft
sections of the Tender which relate to the Workshare.
4.6 The Subcontractor shall submit the Subcontractor's Proposal to Oasis on
or before the agreed date therefor. The Subcontractor shall have
responsibility for the accuracy and content of the Subcontractor's
Proposal which shall have a period of validity not less than that
agreed between the parties pursuant to Clause 4.4(c). If the
Subcontractor's Proposal is not acceptable to Oasis, Oasis may reject
it, notify the Subcontractor of the reason for rejection and request
the submission of an amended and acceptable Subcontractor's Proposal.
Following the submission of the Tender to the Client, the Subcontractor
may not withdraw or amend the Subcontractor's Proposal without Oasis's
approval prior to the end of the period of validity of the
Subcontractor's Proposal.
4.7 Oasis shall have final responsibility for drafting the whole of the
Tender, including that part relating to the Workshare. However, while
Oasis may determine the form in which any of the Subcontractor's
material is presented in the Tender, Oasis shall ensure that the
factual content of material submitted by the Subcontractor is not
altered in any significant way.
4.8 Oasis shall give the Subcontractor a reasonable opportunity to examine
those parts of the Tender relating to the Workshare before submission
of the Tender to the Client. Oasis shall not submit the Tender to the
Client until such time as the Subcontractor has either given its
consent to those parts of the Tender relating to the Workshare or the
parties have agreed a revised version in accordance with Clause 4.9.
4.9 If the Subcontractor in its absolute discretion considers that any part
of the Tender relating to the Workshare is not a true reflection of the
Subcontractor's original contribution then the Subcontractor shall
forthwith inform Oasis of its objection whereupon the parties shall in
good faith try to agree on a revised version of the Tender which
satisfies both parties and which will be submitted to the Client. If
the parties are unable to agree on a revised version within a
reasonable period and in any case within the timescale for submission
of the Tender then either party may terminate this Agreement by written
notice to the other party without thereby incurring any liability to
the other party.
4.10 Subject to the foregoing provisions of this Clause 4, Oasis will submit
the Tender on or before the final date for its submission.
5. Contract Negotiation
5.1 With respect to any negotiations and discussions with the Client in
connection with the Tender:
(a) Oasis shall be responsible for carrying out such negotiations
and discussions to achieve a satisfactory Contract;
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(b) the Subcontractor shall refer any direct approach to it by the
Client to Oasis, it being understood, however, that in
connection with any technical issue directly involving the
Workshare or the Subcontractor's software products, the
Subcontractor, acting reasonably, may require that it deal
directly with the Client;
(c) the Subcontractor shall provide such reasonable support
(including, where appropriate, attendance at meetings with the
Client), material and information to Oasis as Oasis may
reasonably require;
(d) Oasis shall coordinate and submit any response to a request
from the Client for amplification or variation of any aspect
of the Tender and, corresponding thereto, the Subcontractor
shall submit to Oasis any amplification or variation to the
Subcontractor's Proposal; and
(e) Oasis shall refer to and discuss with the Subcontractor all
issues which will have significant material effect on the
Subcontractor's Proposal or the Subcontractor's obligations in
respect of the Workshare and Oasis shall not make any
irrevocable commitments to the Client with respect to such
issues until they have been so referred and discussed and
agreed to by the Subcontractor.
6. Warranties
6.1 Each party warrants to the other that:
(a) it has the right to enter into this Agreement; and
(b) it shall use reasonable skill and care in performing its
obligations hereunder.
7. Staff and Recruitment
7.1 The Subcontractor in nominating any of its staff for key roles in the
performance of the Workshare shall ensure that such staff have the
ability and experience to be able to fulfil the key roles successfully
should the Subcontract be awarded to the Subcontractor.
7.2 Each party agrees that when its staff are present on the premises of
the other party they shall comply with such rules and regulations as
are notified to them for the conduct of staff on those premises.
7.3 Each party agrees that during the period of this Agreement and for
twelve months thereafter it shall not employ or engage on any other
basis or offer such employment or engagement to any of the other
party's staff who have been associated with this Agreement without the
other party's prior agreement in writing.
7.4 Each party agrees that if it employs or engages any person contrary to
Clause 7.3 the party in default shall be liable to pay to the other
party liquidated damages in an amount equal to such person's salary per
annum at the time of leaving the employment of the other party.
8. Intellectual Property Rights
8.1 Subject to the proviso herein contained, all intellectual property
rights, including without limitation to the generality of the foregoing
copyright in any material produced in pursuance of the Tender, shall
vest in and at all times remain vested in the originator of that
material provided always that if the parties jointly produce material
in pursuance of the Tender then unless the parties agree otherwise
copyright and all other intellectual property rights in such jointly
produced material shall vest jointly in the parties except for material
that is based on or derived from Oasis's licensed code or other Oasis
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licensed materials in which case copyright and all other intellectual
property rights therein shall vest in Oasis.
8.2 The parties acknowledge and agree that they may be required under
provisions contained in the Contract and through the Subcontract
resulting therefrom to grant licences or other rights or assign
ownership of intellectual property rights to the Client appertaining to
inventions, software, information, data and other materials. Any such
granting of licences or other rights by the Subcontractor shall not
exceed that required to meet Oasis's commitments in the Contract to the
Client but in any event shall be subject to Subcontractor's express
approval in writing.
9. Confidentiality and Publicity
9.1 Each party undertakes at all times to hold in confidence for the other
party, to use only for the purposes hereof and not to print, publicise
or otherwise disclose to any third party, Confidential Information of
the other party. Confidential Information of the other party does not
however include any document, material, idea, data or other information
which:
(a) is known to the receiving party, under no obligation of
confidence, at the time of disclosure by the disclosing party;
or
(b) is or becomes publicly known through no wrongful act of the
receiving party; or
(c) is lawfully obtained by the receiving party from a third party
who in making such disclosure breaches no obligation of
confidence to the other party; or
(d) is independently developed by the receiving party; or
(e) is disclosed by the disclosing party to a third party under no
obligation of confidence.
9.2 Notwithstanding Clause 9.1, nothing in this Agreement shall be
construed to prevent or restrict the parties from:
(a) disclosing Confidential Information to the Client to such
extent only as is necessary for the purposes contemplated by
this Agreement if the Client has signed a written agreement
that subjects the Client to confidentiality obligations in
respect of such Confidential Information that are equal to or
more stringent than those contained in this agreement; or
(b) disclosing or using in the course of their business any
technical knowledge, skill or expertise of a generic nature
acquired by the parties in the performance of this Agreement.
9.3 The parties shall ensure that their employees, subcontractors and
agents shall only be given access to any Confidential Information
received from the other party (i) on a "need to know" basis for the
purposes of this Agreement and (ii) if the employee, subcontractor or
agent has signed a written agreement that subjects the employee,
subcontractor or agent to confidentiality obligations that are equal to
or more stringent than those contained in this agreement. A disclosing
party may require the other party to verify compliance with this
provision.
9.4 In the event of disclosure of Confidential Information to a third party
in default of the provisions of this Clause 9, the defaulting party
shall use all reasonable endeavours to assist the disclosing party in
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recovering and preventing such third party from using, disseminating,
selling or otherwise disposing of such.
9.5 Each party undertakes not to publicise or otherwise disclose this
Agreement and the contents thereof without the prior consent of the
other party. The Subcontractor agrees that Oasis may disclose all or
part of this Agreement to the Client if Oasis deems it necessary to do
so in order to procure the Contract.
10. Term and Termination
10.1 This Agreement shall terminate upon the earliest of the following
events:
(a) mutual consent evidenced in writing between the parties;
(b) subject to any right of appeal, notification by the Client
that the Tender is not successful;
(c) failure by Oasis and the Client to agree the Contract;
(d) failure by Oasis and the Subcontractor to agree on the
Subcontract;
(e) either party exercising its right pursuant to Clause 4.9;
(f) the Client's refusal of consent to Oasis entering the
Subcontract;
(g) award of a contract for the Project to a third party;
(h) in the event of the award of the Contract to Oasis, upon
completion of all obligations under the Contract;
(i) either party's election upon the other party committing a
material breach of its obligations under this Agreement and if
remediable not remedying such breach within thirty days of
written notice of the breach; or
(j) either party's election upon the other party becoming bankrupt
or entering into liquidation (other than for reconstruction or
amalgamation) or having a receiver appointed of its assets or
any part thereof or having an administration order served upon
it.
10.2 Clauses 7, 8, 9 and 11 shall survive termination of this Agreement and
termination shall, unless expressly agreed to the contrary, take effect
without prejudice to the rights of the parties at the date of
termination.
11. Limitation of Liability
11.1 Except as provided in Sub-Clause 11.3 and except for breaches of Clause
9, each party agrees that the other party's liability for damages under
this Agreement, howsoever arising (including, without limitation, for
breach of contract or for negligence or other tort) shall in no
circumstances exceed in the aggregate the sum of USD$1,000,000.
11.2 Except for breaches of Clause 9, neither party shall have liability to
the other party under or in connection with this Agreement, howsoever
arising, for damages in respect of loss of profits or contracts or for
indirect or consequential loss or damage.
11.3 Neither party's liability in negligence for causing death or personal
injury shall be limited.
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12. Force Majeure
12.1 Neither party shall be liable for any delay in meeting or for failure
to meet any of its obligations under this Agreement due to any cause
outside its reasonable control, including, without limitation, strikes,
lock-outs, Acts of God, War, riot, malicious acts of damage, fire, acts
of any government authority or failure of the public electricity
supply.
13. Notices and Other Communications
13.1 Any notice, which expression includes any other communication
whatsoever which is made in accordance with this Agreement, shall,
without prejudice to any other method of giving it, be sufficiently
given if it is sent by registered or recorded delivery first class post
to the other party to the address stated on the signature page of this
Agreement or to such other address as the respective party may advise
by notice in writing from time to time.
13.2 Notices shall be deemed to have been properly given after three working
days in the case of notices posted from Canada to a destination therein
and eight working days in the case of all other notices posted
internationally.
14. Assignment
14.1 Neither party may assign or otherwise dispose of any rights or delegate
any obligations under this Agreement without the prior written consent
of the other party. Nothing in this Agreement confers or purports to
confer on any third party any benefit or right to enforce any term of
this Agreement.
15. Waiver
15.1 No delay or failure of either party in enforcing against the other
party any term or condition of this Agreement, and no partial exercise
by either party of any right hereunder, shall be deemed to be a waiver
of any right of that party under this Agreement.
16. Legal Construction
16.1 The parties have read and understand this Agreement and agree that it
constitutes the complete and exclusive statement of the agreement
between them with respect to the subject matter hereof which supersedes
all proposals, representations, understandings and prior agreements
whether oral or written, and all other communications between them
relating thereto.
16.2 Clause headings are inserted for convenience of reference only and
shall not affect the interpretation of this Agreement.
16.3 If the scope of any of the provisions of this Agreement is too broad in
any respect to permit enforcement to its full extent, then the parties
agree that such provision shall be enforced to the maximum extent
permitted by law and that such provisions shall be deemed to be varied
accordingly. Any such variation shall not affect the validity and
enforceability of the remainder of this Agreement.
16.4 No purported variation of this Agreement shall take effect unless made
in writing and signed by an authorised representative of each party.
16.5 This Agreement shall be governed by the law of Ontario and the parties
hereby submit to the jurisdiction of the Ontario Courts.
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