**** CERTAIN PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933,
AS AMENDED.
MASTER TECHNOLOGY LICENSE AGREEMENT
THIS AGREEMENT is made the 29th day of December, 0000
X X X X X X X:
724 SOLUTIONS CORP., a corporation incorporated under the laws of
the State of Delaware, having its registered office at 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("LICENSOR");
-AND-
CITICORP STRATEGIC TECHNOLOGY CORPORATION, a corporation
established under the laws of Delaware having an office at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 ("CITIBANK").
BACKGROUND:
1. Licensor is an indirectly wholly-owned subsidiary of 724 Solutions Inc.
("724 Solutions"), and a directly wholly-owned subsidiary of 724
Solutions International SRL ("724 SRL");
2. 724 Solutions, 724 SRL and its Affiliates (as defined below) are in the
business of designing and developing Internet Protocol-based electronic
banking, brokerage, insurance, financial services and e-commerce
applications which allow its licensees to deliver their services to
their customers over a variety of access devices;
3. Licensor is in the business of marketing and selling the banking,
brokerage, insurance, financial services and e-commerce applications to
financial institutions in order to allow such financial institutions to
provide certain services to their customers, and 724 Solutions wishes
to facilitate financial institutions' buying or licensing the
applications by providing consulting and maintenance services with
respect thereto; and
4. Citibank wishes to enter into an Agreement with Licensor whereby
Citibank and its Affiliates (as defined below), upon execution of the
applicable Licensed Affiliate Agreement (as defined below), may license
certain 724 Modules (as defined below) for use in certain 724 Channels
(as defined below), all in accordance with the terms and conditions of
this Agreement.
IN CONSIDERATION of the promises, the mutual covenants contained herein and
other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the Parties hereto agree as follows:
- 2 -
ARTICLE I
INTERPRETATION AND STRUCTURE OF AGREEMENT
1.1 DEFINITIONS. In this Agreement, the following expressions shall have
the following meanings:
"AFFILIATE" of a Person means an entity, present or future, directly or
indirectly controlled by, controlling or under common control with
such Person or their successors subject to the provisions of Section
9.3. For the purposes of this definition of Affiliate, an entity
"controls" a Person where that entity owns at least 25% of the equity,
directly or indirectly, of that Person.
"AGREEMENT" means in respect of each Licensed Affiliate, this Master
Technology License Agreement, all Exhibits attached hereto, the
Licensed Affiliate Agreement and all Schedules attached thereto and
any written agreement or written exhibit or written schedule signed by
the Parties supplementing or amending any of the foregoing. The words
"hereto," "herein," "hereof," "hereby" and "hereunder" and similar
expressions refer to this Agreement and not to any particular section
or portion of it. References to an Article, Section, Subsection or
Schedule refer to the applicable article, section, subsection or
schedule of this Agreement.
"BUSINESS DAY" means any day, other than a Saturday, Sunday, statutory
or civic holiday in the governing jurisdiction as set out in the
relevant Licensed Affiliate Agreement.
"CLIENT EXECUTABLE COMPONENTS" means, with respect to certain Licensed
Channels which may require limited components of the Software to
reside on Customers' devices and/or at the premises of a third party
in support of such Customers' devices, such components.
"COMPETITIVE AREAS" means, with respect to a Person, those parts,
divisions, or business units of such Person whose principal business is
the commercial development, marketing or licensing of commercial
products that are competitive with the Licensed Technology. For
clarity, where this Agreement expressly provides that Licensee may
engage a Contractor of Licensee to provide services on behalf of
Licensee, any of a Person's parts, divisions or business units that are
not Competitive Areas ("Non-Competitive Areas") may provide such
services to Licensee provided such Non-Competitive Areas agree in
writing to not use (other than on behalf of Licensee) or disclose to
Competitive Areas or to third parties any Confidential Information
received directly or indirectly from Licensor, Licensee or any of their
Affiliates. For clarity, a Person, or any parts, divisions, or
business units of such Person whose principal business is providing
banking, financial, insurance or brokerage services to customers is
not a Competitive Area.
"CONFIDENTIAL INFORMATION" means any information, technical data or
know-how including that which relates to a Party's or its Affiliates'
hardware, software, screens, specifications, designs, plans, drawings,
data, prototypes, discoveries, research, developments, processes,
procedures, intellectual property, market research, marketing
techniques and plans, business plans and strategies, customer names
and other
- 3 -
information related to customers, price lists, pricing
policies and financial information or other business and/or technical
information and materials, in oral, demonstrative, written,
electronic, graphic or machine-readable form and any analyses,
compilations, studies or documents prepared by the Receiving Party (as
defined in Section 7.1), its representatives or employees which
summarize any such information of the Disclosing Party (as defined in
Section 7.1). Confidential Information also includes any information
described above which either Party or any of its Affiliates has
obtained from another Party that treats such information as
proprietary or designates it as Confidential Information whether or
not it is owned or developed by such Party or its Affiliates.
Notwithstanding anything to the contrary contained herein, neither
Party shall have any obligation with respect to any Confidential
Information of the other Party which, as evidenced by tangible records
kept in the ordinary course of business: (i) is or becomes generally
known to companies engaged in the same or similar business as the
Parties hereto on a non-confidential basis, through no wrongful act of
the Receiving Party; (ii) is lawfully obtained by the Receiving Party
from a third party who may lawfully disclose it and without any
obligation by the Receiving Party to such third party to maintain the
information proprietary or confidential; (iii) is known by the
Receiving Party prior to disclosure hereunder without any obligation
to keep it confidential and such information was not disclosed by the
Disclosing Party under this Agreement; (iv) is independently developed
by the Receiving Party without reference to or use of the other's
Confidential Information; or (v) is the subject of a written agreement
whereby the Disclosing Party consents to the disclosure of such
Confidential Information.
"CONSULTING SERVICES" has the meaning set forth in Section 3.1.
"CONTENT" means the data feeds, copyright material, information
services and other content that may be transmitted to Customers using
the Licensed Technology.
"CONTRACTOR OF LICENSEE" means a contractor, agent, employee or
representative (i) controlling, operating or maintaining the System
Requirements or other systems or processes of such Licensee used to
provide Licensee Services to Customers or (ii) providing services to
Licensee pursuant to Sections 3.1 or 3.5.
"CUSTOMER" means an end-user customer of Licensee.
"CUSTOMIZATION" means any software or other application created (i) by
Licensor and/or its Affiliates at the request of a Licensed Affiliate
pursuant to a Statement of Services or (ii) in accordance with the
provisions of Section 3.5.
"DERIVATIVE WORK" means a work which is based on the Licensed
Technology, such as a revision, enhancement, modification,
translation, abridgement, condensation, expansion, or any other form
in which the underlying work may be recast, transformed, or adapted,
and which, if prepared without authorization of the owner of the
copyright in the underlying work, would constitute a copyright
infringement. Derivative Works are subject to the ownership rights
and licenses of others in the underlying work.
- 2 -
"DESIGNATED SITES" means the sites from which Licensee operates the
Licensed Technology (other than certain Client-Executable Components)
in accordance with the terms of this Agreement and which are set out
in the Licensed Affiliate Agreement, as may be changed from time to
time in the sole discretion of Licensee upon 60 days written notice to
the 724 Distribution Company which is party to such Licensed Affiliate
Agreement.
"EMBEDDED THIRD PARTY MATERIALS" has the meaning set forth in Section
2.6(b).
"INCLUDING" and "INCLUDES" shall be deemed to be followed by the
statement "without limitation" and neither of such terms shall be
construed to limit any word or statement which it follows to the
specific or similar items or matters immediately following it.
"INTELLECTUAL PROPERTY RIGHTS" include: (A) any and all proprietary
rights provided under (i) patent law, (ii) copyright law, (iii) design
patent or industrial design law, (iv) semi-conductor chip or mask work
law, or (v) any other statutory provision or common law principle,
applicable to 724 Solutions, 724 SRL, the Licensor and, if applicable,
the relevant 724 Distribution Company, which may provide a right in
either (a) ideas, formulae, algorithms, concepts, inventions or
know-how generally, including trade secret law, or (b) the expression
or use of such ideas, formulae, algorithms, concepts, inventions or
know-how; and (B) any and all applications, registrations, licenses,
sub-licenses, franchises, agreements or any other evidence of a right
in any of the foregoing.
"LICENSED AFFILIATE" means Citibank (provided it has entered into the
Licensed Affiliate Agreement) or each Affiliate of Citibank which has
entered into the Licensed Affiliate Agreement provided that a Person
whose principal business is the commercial development, marketing or
licensing of commercial products that are competitive with the
Licensed Technology shall be deemed to not be an Affiliate of Citibank
for the purposes of this Agreement.
"LICENSED AFFILIATE AGREEMENT" means an agreement in the form of the
agreement attached hereto as Exhibit D whereby Citibank or any
Affiliate of Citibank agrees to be bound by the terms and conditions
of this Agreement.
"LICENSE FEE MINIMUM" has the meaning set forth in Section 5.5.
"LICENSED CHANNEL" means any 724 Channel through which the 724
Technology or information capable of being delivered by 724 Technology
can be delivered, as is offered or made available to Licensee and/or
its licensees generally.
"LICENSED MODULES" means the 724 Modules delivering banking and
brokerage information as specified in Exhibit B (and each Update or
Upgrade thereto which Licensee wishes to use in accordance with the
terms thereof) and such other 724 Modules agreed to by the parties in
a particular Licensed Affiliate Agreement.
"LICENSED TECHNOLOGY" means, as set forth in Exhibit B, that part of
the 724 Technology delivered by Licensor and/or its Affiliates to
Licensee from time to time. The Licensed Technology will include all
Client Executable Components needed in connection with a
- 5 -
724 Channel and/or the devices operated by Customers in order
for the Licensed Technology to be used by Customers. For
greater certainty, Licensed Technology expressly includes
Embedded Third Party Materials and Customizations and excludes
System Requirements, Content and Non-Embedded Third Party
Materials.
"LICENSEE" means each respective Licensed Affiliate.
"LICENSEE SERVICES" means the services delivered by Licensee to its
Customers as supported by the Licensed Technology.
"MAINTENANCE SERVICES" has the meaning set forth in Section 4.1.
"NON-EMBEDDED THIRD PARTY MATERIALS" has the meaning set forth in
Section 2.6(c).
"PARTY" means, in respect of a Licensed Affiliate Agreement, the
relevant 724 Distribution Company or Licensee and "PARTIES" means both
of them and, in the context of this Master Technology License
Agreement, "PARTY" means Licensor or Citibank and "PARTIES" means both
of them.
"PERSON" shall be broadly interpreted and includes an individual,
corporation, partnership, joint venture, trust, association,
unincorporated organization, any Governmental Authority or any other
entity recognized by law.
"724 CHANNELS" means any one or more consumer devices or types of
consumer devices capable of utilizing 724 Technology currently or at
some point in the future (whether based on technology now or hereafter
known) and which includes: game consoles, set-top boxes, a PC plug-in,
wireless telephones, lap top computers, "information appliances"
(whether stand alone or integrated with other devices), or smart
handheld devices such as personal digital assistants. Currently
available 724 Channels include digitally enabled wireless telephones
using a xxxxx.xxx browser, pc channel, html channel and PalmPilot
connected organizers versions 3.02 OS and higher excluding Palm VII.
"724 DISTRIBUTION COMPANY" means an Affiliate of 724 Solutions
(including Licensor) which may be designated to enter into, and which
has full corporate and contractual right, power and authority to enter
into, a Licensed Affiliate Agreement with a Licensed Affiliate based
on the jurisdiction in which the said Licensed Affiliate carries on
business.
"724 MODULES" means any software applications that (currently or in
the future) are capable of utilizing 724 Technology with any 724
Channel to support the business segments of Banking, Brokerage,
Financial Services, Insurance and E-commerce.
"724 SERVICES" means the Consulting Services and/or the Maintenance
Services performed by Licensor or its Affiliates.
"724 TECHNOLOGY" means all as set forth in Exhibit B (i) the Software
and related documentation, and (ii) Software Upgrades and Updates and
related documentation. 724 Technology also includes any process or
solution Licensor and/or its Affiliates
- 6 -
implements to provide a Customization and any software developed,
owned, licensed or otherwise generally made available by Licensor
and/or its Affiliates to Licensees and/or its licensees generally from
time to time and any Embedded Third Party Materials.
"SOFTWARE" means the Licensed Modules, Client Executable Components, and
such software as is necessary to utilize a Licensed Channel.
"STATEMENT OF SERVICES" has the meaning set forth in Section 3.1.
"SYSTEM REQUIREMENTS" has the meaning set forth in Section 2.6(a).
"UPDATE" means any process or solution that Licensor and/or its
Affiliates implements to correct defects in any Licensed Technology and
which may include modifications to improve performance or a revised
version or release of Licensed Technology which may incidentally improve
its functionality, but expressly excludes Upgrades.
"UPGRADE" means a new version or release of 724 Technology that improves
the functionality of, or adds functional capabilities to, the Licensed
Technology, and that Licensor and/or its Affiliates (i) makes available
to its licensees generally, or (ii) otherwise makes available to
Licensees. Upgrade also includes any new version or release of 724
Technology that is identified by a new version number.
1.2 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not affect the construction or interpretation
hereof.
1.3 EXTENDED MEANINGS. Words in the singular include the plural and
vice-versa and words in one gender include all genders.
1.4 ENTIRE AGREEMENT. In respect of each Licensed Affiliate, the Parties
agree that the Agreement constitutes the complete and exclusive statement
of the terms and conditions between Licensor (or its Affiliates) and the
Licensed Affiliate pertaining to the performance thereof and cannot be
altered, amended or modified except in writing executed by the Licensor
(or its Affiliates) and the Licensed Affiliate. Each of the Parties
acknowledge that it has not been induced to enter into this Agreement by
any representations not specifically stated herein or in the Support
Agreement entered into by 724 Solutions Inc. and Citicorp Strategic
Technology Corporation on even date herewith.
1.5 INVALIDITY. If any of the provisions contained in this Agreement are
found by a court of competent jurisdiction to be invalid, illegal or
unenforceable in any respect, the validity, legality or enforceability of
the remaining provisions contained herein shall not be in any way
affected or impaired thereby.
1.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York and the federal laws of
the United States applicable therein (excluding any conflict of laws rule
or principles that might refer such construction to the laws of another
jurisdiction) and shall be treated, in all respects, as a New York
contract. The Parties agree that the courts of New York shall have
exclusive jurisdiction over claims brought by either Party against the
other Party, and, subject to
- 7 -
Sections 9.9, 9.10 and 9.11, each Party agrees to bring any legal
proceeding against the other Party only in the courts of New York. If
either Party is permitted to select whether any matter brought before
a court is to be decided by jury or by judge, the Parties agree that
they will not select to have any such matter decided by jury and
hereby waive any such right to a jury trial. Furthermore, the Parties
expressly waive any objection that a matter is brought in an
inconvenient forum when the venue for such matter is a court located
in the borough of Manhattan, New York. The Parties expressly exclude
the application of the United Nations Convention on Contracts for the
International Sale of Goods.
The provisions of this Section 1.6 shall remain in force and effect after
the termination of this Agreement.
1.7 EXHIBITS AND SCHEDULES. The following exhibits and schedules shall form
part of this Agreement:
Exhibit A - License Fee Minimums
Exhibit B - Specifications
Exhibit C - Resource Commitments of 724
Exhibit C-1 - Consulting Services of Citibank
Exhibit D - Form of Source Code Escrow Agreement
Exhibit E - Software Maintenance and Support Services
Exhibit F - Form of Licensed Affiliate Agreement
1.8 INTERPRETATION. In construing this Agreement or determining the rights
of the Parties hereto, no Party shall be deemed to have drafted or
created this Agreement.
1.9 STRUCTURE OF AGREEMENT. Licensor or any 724 Distribution Company agrees
to offer to Affiliates of Citibank the opportunity to license the 724
Technology on the terms and conditions as set forth herein. Any license
of 724 Technology to an Affiliate of Citibank shall be conditional upon
(i) the Affiliate of Citibank not being a Person whose principal business
is the commercial development, marketing or licensing of commercial
products that are competitive with the Licensed Technology, (ii)
Licensor's (or its Affiliates') and Licensee's (or its Affiliates')
ability to procure necessary approvals in accordance with Section 2.7,
and (iii) the execution by the relevant 724 Distribution Company and the
Affiliate of Citibank of a Licensed Affiliate Agreement. In the event
that an Affiliate of Citibank proposes to alter the terms and conditions
set out in this Master Technology License Agreement, then the relevant
724 Distribution Company shall negotiate in good faith with respect
thereto. Each Licensed Affiliate Agreement shall constitute a separate
- 8 -
agreement between the relevant 724 Distribution Company and the relevant
Licensed Affiliate upon execution of the Licensed Affiliate Agreement by
such Licensed Affiliate and such 724 Distribution Company, the terms of
which shall consist exclusively of the terms and conditions of this
Master Technology License Agreement (as may be amended by the Parties to
the Licensed Affiliate Agreement), and those set forth in the Licensed
Affiliate Agreement. In the event there is any inconsistency between the
terms of Articles I to IX of this Master Technology License Agreement and
the Licensed Affiliate Agreement, the terms of the Licensed Affiliate
Agreement shall prevail to the extent of any such inconsistency.
ARTICLE II
GRANT OF LICENSE
2.1 GRANT OF LICENSE. Subject to the terms and conditions hereof,
Licensor grants to Licensee a non-exclusive, non-transferable license
(other than as expressly provided herein), for the term set out for
Licensee in the Licensed Affiliate Agreement (subject to Article VIII)
to use the Licensed Technology at a Designated Site only for the
purpose of providing and using any services supported by the Licensed
Modules via the Licensed Channels to Customers. Licensee shall also
be permitted to sublicense and distribute the Client Executable
Components of the Licensed Technology to Customers of Licensee as may
be required solely for the personal use by Customers in connection
with any services supported by the Licensed Modules via the Licensed
Channels and Non-Competitive Areas of third parties in support of such
Customers' personal use. The license grant herein includes the right
to make and use back-up copies of the Licensed Technology as
reasonably required to operate the Licensed Technology and/or deliver
information to Customers via Licensed Modules. For clarification, the
delivery of any 724 Technology, present or future, to a Licensed
Affiliate shall be deemed to be a conveyance of a license grant of the
Intellectual Property Rights as specified herein. For clarity, it is
understood that Citibank will not become a Licensee upon executing the
Master Technology License Agreement and can become a Licensee only by
executing a Licensed Affiliate Agreement.
2.2 CONTRACTORS OF LICENSEE. Licensor and its Affiliates shall at no
additional cost to Licensee make or permit Licensee to make the
Licensed Technology available to Non-Competitive Areas of Contractors
of Licensee as required to give effect to this Agreement, provided
that such Non-Competitive Areas agree in writing to not use (other
than on behalf of Licensee) and not to disclose to Competitive Areas
or to third parties any Confidential Information received directly or
indirectly from Licensor, Licensee or any of their Affiliates.
2.3 CUSTOMER LICENSE AGREEMENTS. Licensee shall include substantially the
following in a contract or license between Licensee and each Customer
prior to the time such Customer commences to use the services supported
by the Licensed Modules:
"Customer agrees that it will use the service, and all
related software provided to Customer by the Bank
("Software"), solely to access and use the banking and
- 9 -
other services provided by the Bank. Customer agrees not
to decompile or reverse engineer the Software. Customer
agrees that the liability of any third party licensor or
supplier to the Bank in the event of any disruption,
interruption or other failure of the Service, or in any
other way related to the Service, will be limited to
Customer's direct damages not to exceed the service fees
paid by Customer for the Service in the 12 months
immediately prior to the event giving rise to the
liability. In no event will any third party licensor or
supplier to the Bank be liable for indirect, consequential
or special damages, including lost profits, even if the
third party licensor or supplier to the Bank is given
notice of them. These limitations apply to all causes of
action, including breach of contract and tort (including
negligence). Customer agrees not to bring any claims
against such licensors or suppliers other than claims
arising out of the gross negligence, willful misconduct or
criminal act of such third party licensor or supplier,
Customer's sole remedy being recovery from the Bank,
subject to the limitations set forth elsewhere herein."
2.4 RESTRICTIONS ON USE. Licensee shall: (a) not transfer, lease, export or
grant a sublicense of the Licensed Technology or the license contained
herein to any Person except as and when authorized to do so herein; (b)
not use the Licensed Technology except as authorized herein; (c) not
disassemble, decompile or otherwise reverse engineer the Licensed
Technology or create Derivative Works based upon the Licensed Technology
or the accompanying documentation except as may be permitted pursuant to
Article III or the Source Code Escrow Agreement between the Parties to be
executed simultaneously with this Agreement in the form attached hereto
as Exhibit D; (d) not use the Licensed Technology to act as a service
bureau, in whole or in part, for any other Person except in respect of
another Licensee; and (e) not permit Competitive Areas or, except as
provided in Section 2.2, a Person whose principal business is the
commercial development, marketing or licensing of commercial products
that are competitive with the Licensed Technology, to have access to the
Licensed Technology.
2.5 OWNERSHIP OF LICENSED TECHNOLOGY. As between Licensor and its Affiliates
and Licensee, Licensee acknowledges and agrees that, except as
specifically provided for in Article III, the Licensed Technology and all
Intellectual Property Rights therein are and shall at all times remain
the exclusive property of Licensor and its Affiliates (including, without
limitation, 724 SRL) and that no rights, title or ownership interest of
any kind whatsoever in the Intellectual Property Rights therein, or any
portion of same, except as provided in this Agreement, shall pass to
Licensee. Licensor acknowledges and agrees that Licensee shall have all
right, title and interest in and to any software or technology and the
Intellectual Property Rights therein that Licensee, its agents or
contractors develop without the involvement of Licensor to work with the
Licensed Technology provided that such software or technology does not
(i) constitute a Derivative Work, in which case Licensor or its
Affiliates shall have all right, title and interest in and to it, subject
to the provisions of Section 3.4 and Licensee shall have a non-exclusive
license and right to use such software or technology on the same terms
and conditions as the Licensed Technology or (ii) infringe the
Intellectual Property Rights of Licensor, 724 Solutions, 724 SRL or any
third party owner of third party materials.
- 10 -
The provisions of this Section 2.5 shall remain in force and effect after the
termination of this Agreement.
2.6 THIRD PARTY MATERIALS. Licensee acknowledges that certain third party
materials may be required in order to develop, compile, use or operate
the Licensed Technology, and agrees as follows:
(a) SYSTEM REQUIREMENTS. Licensee acknowledges and agrees that
there are a number of essential system components ("System
Requirements") that are external to the Licensed Technology but
required in order to use or operate the Licensed Technology,
including network servers, database components and operating
systems. Licensor will specify all System Requirements to
Licensee in the Licensed Affiliate Agreement. Licensee agrees
that the System Requirements may be amended by Licensor from
time to time in connection with Upgrades only (provided that
Licensee, should it not wish to use such Upgrades requiring
amended System Requirements, will remain able to use the
Licensed Technology other than such Upgrade as permitted
herein), subject to the terms of Exhibit E. Licensor warrants
that System Requirements will consist entirely of components
that are generally available, non-customized and able to be
acquired from Licensed Affiliate-approved vendors. In the
event that components are not so available, Licensee shall
provide Licensor with written notice and Licensor shall be
permitted to specify equivalent alternative System Requirements
that are so available. Subject to the foregoing, Licensee
shall be solely responsible for obtaining or licensing or
otherwise acquiring the System Requirements, and shall be
responsible for all upgrades, updates, maintenance and support
in respect thereof.
(b) EMBEDDED THIRD PARTY MATERIALS. Licensee acknowledges and agrees
that Licensor and/or its Affiliates may, at their sole discretion,
include in the Licensed Technology certain materials which are not
owned by Licensor or any of its Affiliates but which are obtained
or licensed by Licensor and/or its Affiliates from a third party,
embedded in the Licensed Technology, and delivered to Licensee
hereunder together with the Licensed Technology and specified for
use with the Licensed Technology (the "Embedded Third Party
Materials"). Licensor shall provide the Embedded Third Party
Materials to Licensee at no additional cost and shall obtain for
Licensee the right to use such Embedded Third Party Materials at
no additional cost under the same terms and conditions as apply to
the Licensed Technology including representations and warranties
of the vendor to Licensor and/or its Affiliates.
(c) NON-EMBEDDED THIRD PARTY MATERIALS. Licensee acknowledges and
agrees that Licensor and/or its Affiliates may, from time to time,
materially improve the functionality of the Licensed Technology
with or develop new Licensed Technology which may include certain
materials which are not owned by Licensor or its Affiliates but
which are designed to function with the Licensed Technology and
specified for use with the Licensed Technology ("Non-
- 11 -
Embedded Third Party Materials"). For greater certainty,
Non-Embedded Third Party Materials shall not include materials
(i) included in Updates, or (ii) required to deliver
information using 724 Channels made generally available to
licensees. In the event that Licensee elects to utilize the
Non-Embedded Third Party Materials in conjunction with the
Licensed Technology, Licensee shall cooperate with Licensor to
obtain the necessary licenses or rights to use Non-Embedded
Third Party Materials together with maintenance and support in
connection with such materials on commercially reasonable
terms. Licensor and its Affiliates shall not be required to
provide the Non-Embedded Third Party Materials at no additional
cost and shall not be responsible for ensuring that Licensee
obtain the rights to use such Non-Embedded Third Party
Materials.
2.7 COMPLIANCE WITH EXPORT LAWS. Licensee understands that the Licensed
Technology may include cryptographic technology and other technology that
is subject to restrictions imposed by export controls and other laws and
regulations, and that the export of Licensed Technology may be highly
regulated. Licensee and Licensor shall cooperate to comply with all
applicable export control and other relevant laws and regulations of any
applicable jurisdiction that apply to the Licensed Technology, including
any third party materials, that are used with the Licensed Technology.
Notwithstanding the foregoing, Licensee shall be responsible at its
expense for obtaining all export approvals for the delivery of the
Licensed Technology from Canada to the Designated Site of Licensee,
including U.S. export approval for U.S. origin components or third party
materials as are Licensee's responsibility under applicable law.
Licensor shall be responsible at its expense for obtaining all export
approvals for the delivery of the Licensed Technology from Canada to the
Designated Site of Licensee, including U.S. export approval for U.S.
origin components or third party materials as are Licensor's
responsibility under applicable law.
2.8 DELIVERY. Licensor shall deliver to Licensee the Licensed Technology in
object code form executable on the System Requirements by the date set
out in the Licensed Affiliate Agreement. Licensee shall have the right
to require delivery by means of electronic transmission subject to the
following provisions:
(a) Licensee shall provide and designate to Licensor a secure FTP site
for the transmission; and
(b) Licensee shall assume full responsibility for any interception,
breach of confidentiality, theft or other unauthorized disclosure
or use of Confidential Information of Licensor and/or its
Affiliates arising or resulting from such electronic transmission,
provided that Licensor substantially complies with the reasonable
information security specifications for the transmission that
Licensee proposes. [****]
2.9 AUDIT. Licensee shall keep accurate records of the number of Customers
using the Licensed Technology. Upon ten Business Days notice, Licensor shall be
entitled to have its representatives attend at the offices of Licensee to review
and audit these records to
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 12 -
ensure compliance by Licensee with the terms of this Agreement. If
any such review demonstrates a material breach of this Agreement, the
cost of such review shall be borne by Licensee, with Licensor
personnel being charged at the Consulting Services rates in the
Licensed Affiliate Agreement. Notwithstanding the above, Licensor
shall not be entitled to conduct more than three (3) reviews in any
twelve (12) month period, unless at least one such review in such
twelve (12) month period demonstrates a material breach of this
Agreement.
The provisions of this Section 2.9 shall remain in force and effect after
the termination of this Agreement.
ARTICLE III
CONSULTING SERVICES
3.1 CONSULTING SERVICES. Upon the mutual agreement of the Parties, Licensor
(or the 724 Distribution Company as the case may be) or its
subcontractors and agents will perform certain services for Licensee,
such as consulting, development, testing, implementation, integration,
installation, Content organization and administration, software
customization, training and education (collectively, the "Consulting
Services"), as specified in work plans or an agreement ("Statement of
Services") signed by the Parties from time to time. Each Statement of
Services shall incorporate the terms of this Agreement by reference as is
appropriate in the circumstances.
3.2 PRINCIPAL CONTACT. Licensee shall designate one of its employees with
sufficient authority to approve expenditures for Consulting Services, who
shall act as Licensee's principal contact with Licensor (or the 724
Distribution Company, as the case may be) for all Consulting Services to
be provided to Licensee hereunder. All contact with Licensor and all
requests for Consulting Services at any of Licensee's locations shall be
through such designated contact. Licensee may change any designated
employee at any time by notifying Licensor of such change in writing.
Upon a request for Consulting Services by Licensee, Licensor (or the 724
Distribution Company, as the case may be) shall promptly notify Citibank
of the particulars of such request for informational purposes only.
3.3 FEES. The Statement of Services shall set out the fees to be paid by
Licensee for the Consulting Services to be provided under such Statement
of Services. The Statement of Services will also list resources to be
provided by Licensee in order to permit Licensor (or the 724 Distribution
Company, as the case may be) to perform the Consulting Services.
Licensee acknowledges that failure to provide these resources will
adversely impact Licensor's (or the 724 Distribution Company's, as the
case may be) ability to provide the Consulting Services.
3.4 INTELLECTUAL PROPERTY RIGHTS.
(a) Unless otherwise expressly provided in the Statement of Services,
724 SRL shall own all Intellectual Property Rights in the software
and other materials directly
- 13 -
resulting from the Consulting Services (including
Customizations). In order to give effect to the above,
Licensee hereby irrevocably sells, assigns, grants and
transfers to 724 SRL all of Licensee's worldwide right, title
and interest in such Customization and all related Intellectual
Property Rights provided, however, that to the extent
Confidential Information of Licensee is incorporated in or used
in connection with such resulting software and other materials,
ownership of and all rights in such Licensee Confidential
Information shall remain with Licensee. Licensee shall further
execute any document and do all such acts that Licensor may
reasonably require to effectively carry out the intent of this
Section 3.4(a).
(b) If a Statement of Services expressly provides that Licensee shall
own all Intellectual Property Rights resulting from the Consulting
Services (including Customizations), then in order to give effect
to this Section 3.4(b), Licensor hereby irrevocably sells,
assigns, grants and transfers to Licensee all of Licensor's
worldwide right, title and interest in such Customization,
software and other materials directly resulting from Consulting
Services and all related Intellectual Property Rights.
Notwithstanding the above, if the use of such Customization is
necessary to deliver a 724 Channel (i.e., the Customization is an
Embedded Third Party Material), the Licensee shall grant to the
Licensor and/or its Affiliates an irrevocable, unrestricted,
nonexclusive, worldwide, royalty free, paid-up license under such
Intellectual Property Rights. For greater certainty, the
preceding license shall include the unrestricted rights to make,
have made, use, sell, lease or otherwise transfer any apparatus,
and to practice any method, covered by the Intellectual Property
Rights. The preceding license shall also include the right to
reproduce and to prepare derivative works from the works covered
by the Intellectual Property Rights. Such license also includes
the right to grant sub-licenses to any of the Affiliates of the
Licensor. However, nothing in this Section 3.4(b) shall be
construed to grant any license or right in any Licensee
Confidential Information.
Whether 724 SRL or Licensee owns the Intellectual Property Rights
in the software and other materials directly resulting from the
Consulting Services (including Customizations), Licensee shall be
entitled to have a period of six (6) months of exclusive
commercial use before Licensor and/or its Affiliates may offer
such software and other materials, including derivative works or
work products for use by any third party, and Licensor hereby
agrees to such exclusivity. During such six (6) months period,
Licensor shall not disclose or make available for review such
software and other materials, including derivative works or work
products to any third party. The six (6) months exclusivity period
shall begin on the date such software and other materials are made
available to Licensee for use.
The provisions of this Section 3.4 shall remain in force and effect
after the termination of this Agreement.
3.5 ACCESS TO SOURCE CODE.
- 14 -
(a) NO OTHER ACCESS. Except as provided in clause (b) hereof and in
the Source Code Escrow Agreement to be entered into in the form
attached as Exhibit D contemporaneously with the first Licensed
Affiliate Agreement, Licensee shall not be entitled to access the
source code for the Software.
(b) LIMITED ACCESS TO SOURCE CODE. If each and every one of the
following conditions (the "Access Conditions") is satisfied,
Licensee will be entitled to access and use limited portions of
the source code of the Licensed Technology (the "Source Code") in
accordance with clause (c) hereof. The Access Conditions are:
(i) Licensee is not in arrears on any non-disputed payment
due hereunder; and
(ii) Licensee has requested in writing a specific
customization (the "Customization") to the Licensed
Technology that does not involve a modification to the
core architecture of the Licensed Technology, or if it
does involve a modification to the core architecture of
the Software, the Customization involves a 724 Channel
that is not a Licensed Channel; and
(iii) neither Licensor (or its Affiliates) nor an
implementation/consulting partner of Licensor or its
Affiliates reasonably acceptable to Licensee has the
personnel, resources or willingness to complete the
Customization under reasonable commercial terms within
six months of the commencement of the project, provided,
however, Citibank shall cooperate with Licensor (or its
Affiliates) in retaining an implementation/consulting
partner of Licensor or its Affiliates on reasonable
commercial terms; and
(iv) there exists at the time of the Licensee request no
Licensor provided tool kit or utility, or commercially
available at reasonable cost tool kit or utility that
would permit Licensee's technical staff to implement the
Customization without access to the Source Code.
(c) TERMS OF SOURCE CODE ACCESS. If the Access Conditions are met,
Licensee may request, and Licensor shall deliver or cause to be
delivered to Licensee at a single premises of Citibank in the
United States or Canada (the "Licensed Premises") that portion of
the Source Code (the "Licensed Source Code") reasonably required
to develop the Customization. The following terms shall apply to
the Licensed Source Code:
(i) Licensee and/or a Contractor of Licensee will have a
limited use, temporary, non-exclusive and
non-transferable license to use the Licensed Source
Code solely to develop the Customization at the
Licensed Premises and implement the object code version
of the Customization at the Designated Site and, to the
extent the Customization includes Client Executable
Components, on Customers' devices or at Non-Competitive
Areas as required pursuant to Section 2.1. Licensee
will make no other use of the Licensed Source Code;
- 15 -
(ii) Licensee and/or a Contractor of Licensee will use the
Licensed Source Code only at the Licensed Premises and
will not remove the Licensed Source Code from the
Licensed Premises;
(iii) Licensee and/or a Contractor of Licensee will keep the
Licensed Source Code under tight security, both physical
and computer based, while at the Licensed Premises.
Physical security includes keeping hard copy of the
Licensed Source Code in a locked filing cabinet, in a
locked room, when not being used. Computer Security
includes using the Licensed Source Code only on a stand
alone computer not connected to any Licensee network or
the Internet at the time of such use;
(iv) only employees of Licensee and/or a Contractor of
Licensee will have access to the Licensed Source Code,
and each such employee, before being given access, must
sign a non-disclosure and proprietary rights ownership
agreement with Licensee and Licensor and/or its
Affiliates in a form reasonably acceptable to Licensor
and/or its Affiliates;
(v) Licensee agrees to be responsible for, and hereby agrees
to indemnify Licensor and/or its Affiliates, subject to
the provisions of Article VI, from any loss, cost, damage
or expense incurred by Licensor and/or its Affiliates as
a result of any unauthorized third party (including a
Contractor of Licensee) obtaining access to the Licensed
Source Code through the acts or omissions of Licensee.
Licensee will notify Licensor immediately if it is aware
of any unauthorized access to or use of the Licensed
Source Code;
(vi) as soon as Licensee has completed the development and
implementation of the Customization, Licensee will
promptly return to Licensor the Licensed Source Code and
all copies thereof; and
(vii) prior to delivery of the Licensed Source Code, Citibank
provides Licensor and/or its Affiliates with an
unconditional and irrevocable guarantee or its reasonable
equivalent of the obligations of Licensee under this
Section 3.5(c).
The material breach by Licensor and/or its Affiliates of this Section
3.5(c) shall be a Release Condition as defined in the Source Code Escrow
Agreement.
(d) NO SUPPORT. Unless otherwise agreed to in writing by the Parties,
Licensor or its Affiliates shall have no responsibility to provide
Licensee with maintenance, support or other services in respect of
any Customization developed by Licensee pursuant to this Section
3.5 that is not also an Embedded Third Party Material. Licensor
or its Affiliates shall also not be responsible for errors or
problems in the Licensed Technology caused by such Customization,
and to the extent Licensor or its Affiliates spends time
diagnosing or attempting to correct such errors, Licensor or its
Affiliates shall be entitled to charge extra for such services at
its then prevailing hourly rates. If Licensor or its Affiliates
do not agree to maintain and
- 16 -
support a Customization developed by Licensee pursuant to this
Section 3.5, Licensee may itself or through a Contractor of
Licensee maintain and support such Customization and will have
the limited access to the Source Code provided in this Section
3.5 solely to provide such maintenance and support, provided
Licensee agrees to use reasonable efforts to limit the number
of Contractors of Licensee under this Section 3.5(d).
(e) OTHER PROVISIONS. The Parties agree that the provisions in
Sections 2.8, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8 and 7.1 shall apply to
the Licensed Source Code.
ARTICLE IV
MAINTENANCE SERVICES
4.1 PROVISION OF MAINTENANCE SERVICES. Subject to the exclusions set out in
Section 4.2 and 4.3 and the payment by Licensee to the designated 724
Distribution Company of the relevant Maintenance Fees and other charges
provided for herein, Licensor and/or its Affiliates or their contractors,
agents, employees and representatives that have been approved by Licensee
(such approval not to be unreasonably withheld) shall provide to Licensee
the Maintenance Services described in Exhibit E in respect of the 724
Technology during the term of the license granted hereunder. Licensee
shall obtain Maintenance Services from Licensor or its Affiliates for as
long as Licensee uses the Licensed Technology.
4.2 EXCLUSIONS. Licensor shall not be required to provide Maintenance
Services:
(a) to any Person other than Licensee; and
(b) in respect of any software or technology that is not the Licensed
Technology.
4.3 THIRD PARTY MATERIALS. Licensor (and its Affiliates) shall not be
responsible for providing Maintenance Services in respect of System
Requirements and Non-Embedded Third Party Materials. However, Licensor
shall use reasonable commercial efforts to make any warranty or
maintenance services of the licensor of any Non-Embedded Third Party
Materials available to the Licensed Affiliates on reasonable commercial
terms.
ARTICLE V
FEES & PAYMENT TERMS
5.1 FEES AND CHARGES. Licensee agrees to pay to the designated 724
Distribution Company the fees set out in the Licensed Affiliate
Agreement.
5.2 TRAVEL EXPENSES AND OTHER CHARGES. If Licensee requests that staff of
Licensor or its Affiliates travel outside of Metro Toronto (or, with
respect to a 724 Distribution Company, outside a 50 mile radius from such
724 Distribution Company) for the purpose of providing services to
Licensee, Licensee shall reimburse Licensor (or provide payment
- 17 -
as Licensor may direct) for reasonable travel expenses, approved in
advance in writing, on a cost basis, including transportation, living
and communications costs, which fees and costs shall be paid by
Licensee within thirty (30) days of receipt of an invoice from
Licensor for such amounts. Licensee shall be solely responsible for
any fees or charges associated with the Content delivered by means of
the Licensed Technology.
5.3 LATE FEES. Licensee shall pay all undisputed invoices within 60 days of
the date of the invoice. Where Licensee fails to pay any amount when
due, Licensor (or the designated 724 Distribution Company as the case may
be) shall have the right, in addition to any other remedies, to charge,
and Licensee shall pay, interest on such overdue amounts at the rate of
[****] per month, compounded monthly ([****] per annum).
5.4 TAXES.
(a) In addition to all charges hereunder, Licensee shall pay to
Licensor (or the designated 724 Distribution Company) all taxes,
duties, and other such governmental assessments or charges which
may be assessed, levied or imposed in connection with this license
of the Licensed Technology, the use of the Services and any other
charges or services hereunder, except taxes based on 724's income
and capital. If Licensee pays any taxes hereunder for which 724
subsequently receives a refund, 724 shall pay such refund to
Licensee.
(b) Without limiting the generality of the foregoing, all payments by
Licensee under this Agreement shall be made free and clear of, and
without deduction for, any and all present or future taxes or
withholdings imposed on or with respect to such payments, and all
interest, penalties and other liabilities with respect thereto
(all such taxes or withholdings being hereinafter referred to as
"Amounts"). If Licensee is required by law to deduct any such
Amount from payments or in respect of any sum payable hereunder,
and remit such Amount to a relevant taxing authority:
(i) the sum payable by Licensee to Licensor (or the
designated 724 Distribution Company) shall be increased
as may be necessary so that after making all required
deductions (including deductions applicable to additional
sums payable under this Section 5.4(b)(i)), Licensor (or
the designated 724 Distribution Company) receives an
amount equal to the sum it would have received had no
deduction been made;
(ii) Licensee shall make such deductions;
(iii) Licensee shall pay and remit the full amount deducted to
the relevant taxation authority in accordance with
applicable law; and
(iv) within 30 days after the date of payment or remittance of
Amounts to the relevant taxation authority referred to in
Section 5.4(b)(iii), Licensee will furnish to Licensor
(or the designated 724 Distribution Company) the
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 18 -
original or a certified copy of any receipt furnished
by the relevant taxing authority evidencing payment
thereof.
5.5 CITIBANK LICENSE FEE MINIMUMS. Citibank or an Affiliate shall pay to
Licensor certain minimum amounts ("License Fee Minimums") in respect of
License Fees to be earned (and not necessarily collected) pursuant to
Licensed Affiliate Agreements entered into by the designated 724
Distribution Company and Licensed Affiliates. The License Fee Minimums
shall be paid to Licensor in accordance with the terms of Exhibit A
attached hereto. Licensor and its Affiliates covenant and agree that
they shall: (i) exert commercially reasonable efforts to enter into
Licensed Affiliate Agreements; (ii) act in a commercially reasonable
manner in the negotiation and execution of all Licensed Affiliate
Agreements, provided that all license fees in respect thereof shall be
determined by the Parties to the Licensed Affiliate Agreement each in
their absolute discretion; and (iii) provide the resource requirements
set forth in Exhibit C.
5.6 CITIBANK CONSULTING SERVICES. Licensor shall pay to Citibank and
Citibank shall provide to Licensor and its Affiliates the resources and
services set out in Exhibit C-1 attached hereto in accordance with the
terms and conditions set out therein.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES OF LICENSOR. Licensor represents and
warrants to Licensee as set out in the following Subsections of this
Section 6.1 and acknowledges that Licensee is relying upon such
representations and warranties.
(a) CORPORATE MATTERS.
(i) Licensor is a corporation duly amalgamated, organized,
validly existing and in good standing under the laws of
the State of Delaware. No proceedings have been taken or
authorized by Licensor or by any other Person with
respect to the bankruptcy, insolvency, liquidation,
dissolution or winding-up of Licensor or with respect to
any merger, consolidation, arrangement or reorganization
relating to Licensor.
(ii) Licensor and/or its Affiliates have all necessary right
and authority to execute and deliver, and to observe and
perform its covenants and obligations under, this
Agreement. Licensor has taken all corporate action
necessary to authorize the execution and delivery of, and
the observance and performance of its covenants and
obligations under this Agreement.
(iii) This Agreement has been duly executed and delivered by
Licensor and constitutes a valid and legally binding
obligation of Licensor enforceable against Licensor in
accordance with its terms.
- 19 -
(iv) Licensor has all necessary corporate power and authority
to own or lease its assets and to carry on its business
as now and heretofore carried on. Licensor has conducted
and is conducting its business in compliance with
applicable law in all material respects. Licensor
possesses all governmental licenses material to the
conduct of its business and the ownership of its assets,
such governmental licenses are in full force and effect,
are not in default, and there are no proceedings in
progress or pending or, to its knowledge, threatened,
which may result in revocation, cancellation, suspension
or any adverse modification of any of such licenses.
(v) None of the execution and delivery of, or the observance
and performance by Licensor of any covenant or obligation
under this Agreement contravenes or results in, or will
contravene or result in, a violation of or a default
under (with or without the giving of notice or lapse of
time, or both) or in the acceleration of any obligation
under any applicable law, under the articles, by-laws,
directors' or shareholders' resolutions of Licensor or
under any agreement, lease, note, bond, indenture, deed
of trust, mortgage, security document, obligation or
instrument to which Licensor is a party or by which it is
bound.
(b) OWNERSHIP. Licensor and/or its Affiliates either own or license
the Intellectual Property Rights in the 724 Technology and has the
right to grant the licenses in Section 2.1 hereof.
(c) INFRINGEMENT. To the knowledge of Licensor there is no:
(i) claim of adverse ownership or invalidity or other
opposition to or conflict with ownership of the patents,
copyright, trade marks or trade secrets forming part of
the 724 Technology by Licensor and/or its Affiliates or
the manner it is used in respect of the business of
Licensor and/or its Affiliates, nor are there any such
claims with respect to any other Intellectual Property
Right forming part of the 724 Technology; or
(ii) pending or threatened suit, proceeding, claim, demand,
action or investigation of any nature or kind against
Licensor and/or its Affiliates relating to the 724
Technology or the manner it is used in respect of its
business; or
(iii) claim or circumstance of which Licensor and/or its
Affiliates has received notice (formal or informal) or is
otherwise aware that:
(1) any products, software or services manufactured,
produced, used, marketed, licensed or sold by
Licensor or its Affiliates; or
(2) any process, method, packaging, advertising, or
material that Licensor or its Affiliates employs in
the manufacture, production,
- 20 -
use, marketing, licensing or sale of any such
product, software or service; or
(3) the use of any of the 724 Technology,
breaches, violates, infringes or interferes with any
rights of any Person or requires payment for the use of
any patent, copyright, trade xxxx or trade secret,
know-how or technology of another Person or any other
Intellectual Property Right of any Person.
(d) NO CONFLICTING AGREEMENTS. Licensor or its Affiliates is not
under and will not assume any contractual or legally enforceable
obligation that conflicts with its obligations or the rights
granted in this Agreement.
(e) VIRUS WARRANTY. Licensor warrants that it will use all
commercially reasonable efforts to ensure that all 724 Technology
or any material component thereof delivered to Licensee is, at the
time of shipment to Licensee, free of any known computer software
viruses.
(f) DISABLING DEVICES. The 724 Technology does not contain any back
door, time bomb, worm, Trojan horse, software lock, drop-dead
device or other software routine designed to disable the 724
Technology or any material component thereof or damage, alter,
erase, harm or impair access to Licensee's data, systems or
software.
(g) SOFTWARE WARRANTY. Provided that all System Requirements are
adhered to by Licensee, Licensor warrants that for a period of
[****] after the delivery of the Licensed Technology to
Licensee (the "Warranty Period"), the Software and software
components of the Licensed Technology, will work in accordance
with the Specifications set out in Exhibit B in all material
respects. Licensee's sole remedy, and Licensor's sole
liability, for a breach of this warranty not constituting a
breach of any other warranty or provision of this Agreement, is
to have Licensor at Licensor's expense promptly correct any
non-conformities in such software reported during the Warranty
Period by Licensee to Licensor in accordance with the response
times set out in Exhibit E.
(h) THIRD PARTY MATERIALS. Licensor and/or its Affiliates has all
rights necessary to include the Embedded Third Party Materials in
the Licensed Technology delivered to Licensee hereunder and to
permit use of such Embedded Third Party Materials by Licensee as
provided herein. Licensor and/or its Affiliates has all rights
necessary to use Non-Embedded Third Party Materials in connection
with the Licensed Technology delivered to Licensee hereunder.
6.2 REPRESENTATIONS AND WARRANTIES OF CITIBANK. Citibank represents and
warrants to Licensor as set out in the following Subsections of this
Section 6.2 and acknowledges that Licensor is relying upon such
representations and warranties.
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 21 -
(a) Citibank is a corporation duly amalgamated, organized, validly
existing and in good standing under the laws of Delaware. No
proceedings have been taken or authorized by Citibank or by any
other Person with respect to the bankruptcy, insolvency,
liquidation, dissolution or winding-up of Citibank or with respect
to any merger, consolidation, arrangement or reorganization
relating to Citibank.
(b) Citibank and/or its Affiliates have all necessary right and
authority to execute and deliver, and to observe and perform its
covenants and obligations under, this Agreement. Citibank has
taken all corporate action necessary to authorize the execution
and delivery of, and the observance and performance of its
covenants and obligations under this Agreement.
(c) This Agreement has been duly executed and delivered by Citibank
and constitutes a valid and legally binding obligation of Citibank
enforceable against Citibank in accordance with its terms.
(d) Citibank has all necessary corporate power and authority to own or
lease its assets and to carry on its business as now and
heretofore carried on. Citibank has conducted and is conducting
its business in compliance with applicable law in all material
respects. Citibank possesses all governmental licenses material
to the conduct of its business and the ownership of its assets,
such governmental licenses are in full force and effect, are not
in default, and there are no proceedings in progress or pending
or, to its knowledge, threatened, which may result in revocation,
cancellation, suspension or any adverse modification of any of
such licenses.
(e) None of the execution and delivery of, or the observance and
performance by Citibank of any covenant or obligation under this
Agreement contravenes or results in, or will contravene or result
in, a violation of or a default under (with or without the giving
of notice or lapse of time, or both) or in the acceleration of any
obligation under any applicable law, under the articles, by-laws,
directors' or shareholders' resolutions of Citibank or under any
agreement, lease, note, bond, indenture, deed of trust, mortgage,
security document, obligation or instrument to which Citibank is a
party or by which it is bound.
6.3 EXCLUSION OF OTHER WARRANTIES. Except as otherwise expressly stated
herein, there are no express or implied warranties or conditions in
relation to any Licensed Technology, documentation, services or products
that are the subject matter of this Agreement, including any implied
warranties or conditions of merchantable quality or fitness for a
particular purpose and those otherwise arising by statute or otherwise in
law, or from a course of dealing or usage of trade.
6.4 LIMITATION OF LIABILITY. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, IN NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOSS OF
PROFITS, LOSS OF BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS,
OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND WHATSOEVER, NOR SHALL
EITHER PARTY BE LIABLE TO THE OTHER
- 22 -
FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT
INCLUDING IN CONNECTION WITH USE (OR INABILITY TO USE) OR PERFORMANCE
OF THE LICENSED TECHNOLOGY, DOCUMENTATION, SERVICES OR PRODUCTS THAT
ARE THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF ADVISED OF THE
POSSIBILITY OF SAME AND REGARDLESS OF THE CAUSE OF ACTION (INCLUDING
BREACH OF CONTRACT, INCLUDING MATERIAL BREACH, AND NEGLIGENCE).
LICENSOR SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST LICENSEE BY ANY THIRD
PARTIES, INCLUDING CUSTOMERS EXCEPT WHERE SUCH CLAIM ARISES OUT OF OR IS
CAUSED BY THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR CRIMINAL ACT OF
LICENSOR AND/OR ITS AFFILIATES, SUBJECT TO THESE DAMAGES LIMITATIONS.
LICENSOR DOES NOT WARRANT THAT THE BUSINESS RESULTS OBTAINED FROM THE USE
OF THE LICENSED TECHNOLOGY WILL BE APPROPRIATE OR ADEQUATE FOR LICENSEE.
LICENSOR SHALL NOT HAVE ANY LIABILITY WITH RESPECT TO SYSTEM REQUIREMENTS
AND NON-EMBEDDED THIRD PARTY MATERIALS OTHER THAN AS SPECIFIED IN
SUBSECTIONS 6.1(H), WHETHER OR NOT SUCH MATERIALS ARE INCLUDED IN THE
LICENSED TECHNOLOGY.
THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION 6.4, SHALL APPLY TO
ALL AFFILIATES OF LICENSOR THAT PROVIDE SOFTWARE OR SERVICES PURSUANT TO
THIS AGREEMENT.
6.5 LIMITATION OF DIRECT DAMAGES. Except for Sections 6.6, 6.7 and 6.8,
respectively, the liability of Licensor (and its Affiliates) and Licensee
hereunder will be limited to direct damages.
Licensor's and its Affiliates' liability for direct damages, if any,
whether based on negligence, breach of contract (whether or not a
material breach), warranty or other legal theory, will not exceed an
amount equal to:
(a) if the liability arises from the Consulting Services performed by
Licensor or an Affiliate under a Statement of Services, [****];
and
(b) for any other liability, [****] immediately prior to the event
giving rise to the liability;
(c) provided however, Licensee shall not be entitled to claim damages
under more than one of Sections 6.5(a) and 6.5(b) hereof for any
given event of liability.
Licensee's liability for direct damages, if any, whether based on
negligence, breach of contract (including material breach), warranty or
other legal theory will not exceed an
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 23 -
amount equal to [****] immediately prior to the event giving rise
to liability.
6.6 EXCLUSIONS FROM LIMITATIONS. The Parties agree that the limitations in
Sections 6.4 and 6.5 shall not apply to the following:
(a) (a) any claim by Licensor against Licensee for payment of
license fees, maintenance fees and consulting fees, so long as
such claims are limited to the amount of the Consulting Fees
pursuant to Section 3.3, Maintenance Fees pursuant to Section 4.1
and fees pursuant to Article V other than Section 5.5 due Licensor
and/or its Affiliates from any Licensee;
(b) any claim by Licensor against Citibank for payment of any fees
payable to Licensor so long as such claims are limited to the
amount of the fees calculated pursuant to Section 5.5 due Licensor
and/or its Affiliates from Citibank;
(c) any claim by Licensor against Licensee for a breach of Sections
2.1, 2.3 and/or 2.4 so long as Licensor's financial claim is
limited to the amount Licensor would have otherwise charged the
unauthorized third party on whose behalf the Licensed Technology
is used or copied based on Licensor's then prevailing rates for
customers of comparable size and circumstances; and
(d) any claim under Sections [****], provided that each Party's
total liability for damages, if any, arising out of a breach
of Sections [****] (individually) shall not exceed [****].
6.7 INDEMNITY BY LICENSOR. Notwithstanding the limitations in Sections 6.4
and 6.5, other than for claims arising out of the gross negligence,
willful misconduct or criminal act of Licensee, or its agents or
employees, Licensor and/or 724 Solutions will hold harmless, defend and
indemnify Licensee and each of its employees, officers, directors and
agents from and against any claims, lawsuits, or demands of third parties
that the Licensed Technology infringes any patent, copyright, trade
secret or trade-xxxx right of any Person or any breach by Licensor, its
Affiliates, agents or employees, of Section 3.4 hereof, and Licensor
and/or 724 Solutions will pay resulting costs, damages and reasonable
legal fees finally awarded by a court (or related settlement costs),
provided that:
(a) Licensee promptly notifies Licensor in writing of the claim;
(b) Licensee co-operates at Licensor and/or 724 Solutions' expense
with Licensor in the defense of such claim;
(c) Licensor (or one or more of its Affiliates) has sole control of
the defense and all related settlement negotiations provided that
Licensor and/or its Affiliates conducts the defense or settlement
negotiations diligently and that any such settlement has no
material adverse effect on Licensee. Notwithstanding the
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 24 -
above, Licensee shall have the right to its own counsel and the
ability to participate in the defense;
(d) Licensee has no authority to settle any claim on behalf of
Licensor and/or its Affiliates; and
(e) in the event of a patent infringement claim, the Licensed
Technology is a material part of the claim.
If Licensor does not inform Licensee within ten (10) business days after
receipt of notice of any such claim of its decision to defend and of the
identity of counsel retained for the defense, Licensee may retain counsel
and conduct the defense of the claim as it may in its discretion deem
proper, at Licensor's or 724 Solution's cost and expense. In effecting
the settlement of the claim, Licensee shall act in good faith, shall
consult with Licensor and shall enter into only such settlement as
Licensor approves (which approval shall not be unreasonably withheld and
which shall be implied if Licensor does not respond within ten (10)
calendar days after Licensee notifies Licensor of the proposed
settlement).
If such claim has occurred, or in Licensor's opinion is likely to
occur, Licensee agrees to permit Licensor at Licensor's option and
expense, either to procure for Licensee the right to continue using
the Licensed Technology or to replace or modify the same so that it
becomes non-infringing without loss of functionality and providing the
Licensed Technology as replaced or modified remains in compliance with
Exhibit B. If neither of the foregoing alternatives is available to
Licensor on reasonable commercial terms, Licensor may terminate this
Agreement and Licensee's use of the Licensed Technology, provided
Licensor refunds to Licensee an amount equal to (i) the license fees
paid by Licensee to Licensor hereunder less (ii) an amount equal to 4%
of such fees for each month between the date Licensor delivered the
Licensed Technology and the termination date.
Licensor shall have no obligation to defend Licensee or to pay costs,
damages or legal fees for any claim based upon:
(i) versions of the Licensed Technology that have been
altered or modified solely by Licensee without the
assistance of Licensor and/or its Affiliates if such
infringement would have been avoided by the use of the
unaltered version thereof; or
(ii) the combination, operation or use of any Licensed
Technology with non-Licensed Technology other than
Embedded Third Party Materials if such infringement would
have been avoided but for such combination, operation or
use; or
(iii) use of Customizations developed pursuant to a Statement
of Services, unless Licensor makes such Customizations
generally available to licensees as provided herein.
- 25 -
6.8 INDEMNIFICATION BY LICENSEE. Notwithstanding the limitations in Sections
6.4 and 6.5, other than (i) for claims arising out of the gross
negligence, willful misconduct or criminal act of, or any breach of
Section 3.4 hereof by Licensor and/or its Affiliates, agents or employees
or (ii) any claims, lawsuits, or demands that the Licensed Technology
infringes any patent, copyright, trade secret or trade-xxxx right of any
Person, Licensee will hold harmless, defend and indemnify Licensor and/or
its Affiliates, and each of their employees, officers, directors, agents,
licensees and customers from and against any claims, lawsuits, or demands
of third parties that directly arise from the use of the Licensed
Technology, Content or the Licensee Services by Licensee or its
Customers, or any non-payment of taxes required under Section 5.4 hereof,
or any breach by Licensee, its agents or employees of Section 3.4 hereof,
provided that:
(a) Licensor and/or its Affiliates provide prompt written notice of
the claim to Licensee;
(b) Licensor and/or its Affiliates co-operates at Licensee's expense
with Licensee in the defense of such claim;
(c) Licensor and/or its Affiliates affords Licensee sole control of
the defense and all related settlement negotiations, provided
Licensee conducts the defense or settlement negotiations
diligently and that any proposed settlement has no material
adverse effect on Licensor and/or its Affiliates; and
(d) Licensor and/or its Affiliates do not attempt to settle any claim
on behalf of Licensee.
If Licensee does not inform Licensor within ten (10) business days after
receipt of notice of any such claim of its decision to defend and of the
identity of counsel retained for the defense, Licensor may retain counsel
and conduct the defense of the claim as it may in its discretion deem
proper, at Licensee's cost and expense. In effecting the settlement of
the claim, Licensor shall act in good faith, shall consult with Licensee
and shall enter into only such settlement as Licensee approves (which
approval shall not be unreasonably withheld and which shall be implied if
Licensee does not respond within ten (10) calendar days after Licensor
notifies Licensee of the proposed settlement).
The provisions of this Article VI other than Section 6.1 shall remain in
force and effect after the termination of this Agreement.
ARTICLE VII
CONFIDENTIALITY AND NON-SOLICITATION
7.1 CONFIDENTIAL INFORMATION. Each party who receives Confidential
Information (referred to in this Section 7.1 as the "Receiving Party") of
the other Party (referred to in this Section 7.1 as the "Disclosing
Party") shall hold such Confidential Information in trust and confidence
for and on behalf of the Disclosing Party and shall not, except as
expressly authorized hereunder or in writing by the Disclosing Party,
use, copy or
- 26 -
disclose to any third party any Confidential Information so
received. Each Receiving Party shall take appropriate action by
instruction, agreement or otherwise to ensure that its directors,
officers, employees, consultants and agents are required to keep
confidential all Confidential Information of the Disclosing Party which
is disclosed to or comes into the possession of any of them. The
Receiving Party agrees to obtain from any independent contractor, agent
or other Person to whom disclosure of the Disclosing Party's Confidential
Information is made in carrying out such purposes, a written covenant not
to further disclose or make use of any of the Disclosing Party's
Confidential Information in any manner whatsoever. Licensee agrees it
will not permit those consultants or agents to have access to
Confidential Information of Licensor and its Affiliates where such
parties are Competitors of Licensor and/or its Affiliates.
7.2 NON-SOLICITATION OF EMPLOYEES. During the term of this Agreement and
the [****] period thereafter, neither Licensor or its Affiliates nor
any business group within Licensee that works directly with Licensor
or its Affiliates (referred to as "OBLIGEE" for the purposes of this
Section 7.2) nor any of their Affiliates shall either individually or
in partnership or in conjunction in any way with any person or
persons, whether as principal, agent, consultant, shareholder,
guarantor, creditor or in any other manner whatsoever actively solicit
or endeavor to entice away from the other Obligee or its Affiliates,
any person employed or retained as a full time consultant by the other
Obligee or its Affiliates at the date that this Agreement is
terminated for any reason, or who was so employed or retained at any
time during the previous one year period or interfere in any way with
the employment or other relationship between any such person and the
other Obligee and its Affiliates. The provisions of this Section 7.2
shall not apply if any one of the events listed in Section 8.4
(Business Termination) occurs, and shall not apply to newspaper and
any other generally available recruiting activities conducted by an
Obligee provided that the Obligee does not expressly address any such
recruiting activities at an employee of the other Obligee.
7.3 SECURITY. Licensor and its Affiliates acknowledge that the Licensed
Technology will comply with the security policies delivered to
Licensor on the date hereof (the "Security Standards"), which Security
Policies may be amended by Citibank from time to time with 90 days
written notice to Licensor. [****]
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 27 -
7.4 PRIVACY. Licensor and its Affiliates, in the provision of Consulting
Services or Maintenance Services, shall comply with Citibank's privacy
policies delivered to Licensor on the date hereof (the "Privacy
Policies") which Privacy Policies may be amended by Citibank from time
to time with 90 days written notice to Licensor. Furthermore, to
Licensor's and/or its Affiliates' best knowledge, the Licensed
Technology, in its normal usage, does not violate such Privacy
Policies. [****] As between Licensor and its Affiliates and
Licensee, the Parties agree that all Customer data and data related
thereto is owned by Licensee.
The provisions of this Article VII shall remain in force and effect after
the termination of this Agreement.
ARTICLE VIII
TERM AND TERMINATION
8.1 TERM. The term of this Master Technology License Agreement (the "Term")
shall be five (5) years unless terminated earlier in accordance with the
provisions of this Agreement. In the event of such early termination,
any Licensed Affiliate Agreement, including the provisions of this
Agreement incorporated therein, shall remain in effect as between the
Parties to such Licensed Affiliate Agreement.
8.2 TERMINATION FOR NON-PAYMENT. Provided that Licensor has not materially
breached any of the provisions of this Agreement, Licensee's failure to
pay any properly payable amounts due hereunder within sixty (60) written
days after receipt of written notice from Licensor that such amounts are
due and owing, shall be a material breach of this Agreement, and, at
Licensor's option, this Agreement and all licenses hereunder shall
terminate at any time after such sixty (60) day period.
8.3 TERMINATION FOR DEFAULT. In addition to any other rights or remedies
hereunder, either party may terminate this Agreement for any other
material breach by the other party of this Agreement or any provisions
hereof not cured within sixty (60) days after receipt of notice from the
non-defaulting party.
8.4 BUSINESS TERMINATION. In addition to any other rights or remedies
hereunder, either Party may terminate this Agreement immediately by
giving written notice to the other Party where the other Party: (i) makes
any general assignment for the benefit of creditors or otherwise enters
into any composition or arrangement with its creditors; (ii) is unable
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 28 -
to pay its debts as they mature; (iii) has a receiver and/or manager
appointed over its assets or an application is made to do so; (iv)
becomes bankrupt or insolvent or commits an act of bankruptcy or takes or
attempts to take advantage of any law or statute for the relief of
bankrupt or insolvent debtors; (v) commences or becomes subject to any
process that might result in its bankruptcy or liquidation; (vi) has a
resolution or a petition filed or an order made for its winding up; or
(vii) ceases to carry on business. Any such occurrence by Licensor shall
be a Release Condition as defined in the Source Code Escrow Agreement.
8.5 TERMINATION ON CEASING TO BE AN AFFILIATE. If Licensee ceases to be an
Affiliate of Citibank, then all rights granted pursuant to this Agreement
will continue only for a period of twelve (12) months with respect to
such Licensee. After such time, all rights granted pursuant to that
Licensed Affiliate Agreement shall automatically terminate, unless,
Licensor consents in writing to the assignment of the Licensed Affiliate
Agreement and the assignee assumes and agrees to be bound by all of the
provisions of this Agreement as set forth in Section 9.3. In the event
of an authorized assignment pursuant to this Section 8.5, the rights
granted pursuant to the Licensed Affiliate Agreement shall only be used
by the resulting entity in respect of the type of business and Customers
of the assignor immediately prior to the authorized assignment. If the
assignee wishes to utilize the Licensed Technology for a different type
of business or Customers, it must obtain its own license for the Licensed
Technology.
8.6 EFFECT OF TERMINATION.
(a) If Licensor terminates this Agreement pursuant to this Article
VIII, Licensee shall immediately commence procedures to remove
and cease to use of the Licensed Technology. Licensee shall
finally terminate all such use and shall return the Licensed
Technology and all copies thereof and documentation relating
thereto, to Licensor no later than 180 days from the date of
such termination. Notwithstanding, Licensor acknowledges that
in the event that it terminates this Agreement in accordance
with the provisions of this Article VIII, then it shall assist
Licensee to remove the Licensed Technology and Licensee's
related applications and shall, as is reasonable in the
circumstances, provide Licensee with a reasonable amount of
time to effect such removal and return. A senior officer of
Licensee shall provide Licensor with a signed certificate
within 10 days after the termination date attesting that all
software and materials have been returned to Licensor and that
Licensee has no such material in its possession or under its
control. For greater certainty, termination of this Agreement
in respect of one Licensee will not result in termination
against any other Licensee.
(b) If Licensee terminates this Agreement in accordance with this
Article VIII or Section 9.1, then Licensee shall be permitted to
continue to use the Licensed Technology for a period of nine (9)
months from the date of notice of such termination. All of the
rights and obligations of the parties under this Agreement shall
continue during such notice period. Licensee shall, during such
time, do
- 29 -
such acts and things as are reasonably necessary to facilitate
the termination of use and removal of the Licensed Technology
within the nine (9) month period.
ARTICLE IX
GENERAL
9.1 EXCUSABLE DELAYS. Dates and times by which Licensor or Licensee is
required to render performance (other than dates and times for payment of
money) hereunder shall be postponed automatically to the extent and for
the period of time that Licensor or Licensee, as the case may be, is
prevented from meeting them by reason of any causes beyond its reasonable
control, provided the Party prevented from rendering performance notifies
the other Party immediately and in detail of the commencement and nature
of such a cause, and provided further that such Party uses its reasonable
efforts to render performance in a timely manner utilizing to such end
all resources reasonably required in the circumstances, including
obtaining supplies or services from other sources if same are reasonably
available. Notwithstanding the foregoing, if any event beyond the
reasonable control of Licensor delays the performance of Licensor for
more than thirty (30) consecutive days, Licensee will be entitled to
terminate this Agreement and the provisions of Section 8.6(b) shall
apply.
9.2 NOTICES. Any notice, consent, determination or other communication
(herein a "Notice") required or permitted to be given or made hereunder
shall be in writing and shall be well and sufficiently given or made if:
(a) delivered in person during normal business hours on a Business Day
and left with the addressee at the address set forth below; or
(b) sent by any electronic means of sending messages, including
facsimile transmission, which produces a paper record ("Electronic
Transmission") during normal business hours on a Business Day,
charges prepaid and confirmed by prepaid first class mail:
TO LICENSOR, AT: WITH A COPY TO:
---------------- ---------------
1 Market, Xxxxxxx Tower 724 Solutions
San Francisco, California 0000 Xxxxx Xxxxxx,
00000, XXX Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxxxxxx, Attention: General Counsel
Director
- 30 -
TO LICENSEE, AT: WITH A COPY TO:
---------------- ---------------
Citibank Citibank
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx New York, New York
10043 10043
Attention: Xxxx Xxxxx Attention: e-Citi General
Counsel,
Facsimile: 212-793-3051 Facsimile: 000-000-0000
or to such other address or telecopier number to the attention of
such other individuals as any Party may from time to time notify
the others in accordance with this Section 9.2. Any Notice so
given or made shall be deemed to have been given or made on the
day of delivery if delivered as aforesaid (with a receipt or date
stamp) or on the Business Day immediately following the day of
Electronic Transmission.
9.3 ASSIGNMENT AND INUREMENT. Licensee may not assign any rights or benefits
under this Agreement to any Person without the prior written consent of
Licensor, provided that Licensee may assign this Agreement to the Person
that purchases or otherwise acquires all or substantially all of the
assets of Licensee so long as (i) such purchaser is not a Person whose
principal business is the commercial development, marketing or licensing
of commercial products that are competitive with the Licensed Technology,
(ii) Licensee does not retain any of the Licensed Technology, and (iii)
the purchaser agrees in writing with Licensor in advance of the
assignment to assume the obligations under this Agreement and to the
further restriction that the Licensed Technology will after the
assignment be used only in respect of the business acquired by the
purchaser from Licensee and that any further or additional use of the
Licensed Technology will require the payment of additional license fees.
If Licensee purchases or otherwise acquires all or substantially all of
the assets of another Person, the Licensed Technology shall only be used
by the Licensee in respect of the type of business (and its Customers)
that was operated by Licensee immediately prior thereto, and such other
business unit, if it wishes to utilize the Licensed Technology for a
different type of business, must obtain its own license for the Licensed
Technology. Subject to the foregoing, this Agreement shall inure to the
benefit of and be binding upon the Parties and their respective
successors and permitted assigns.
9.4 REMEDIES CUMULATIVE. The rights and remedies of the Parties under this
Agreement are cumulative and in addition to and not in substitution for
any rights or remedies provided by law.
9.5 COUNTERPARTS. This Agreement may be executed and delivered in several
counterparts and by each of the Parties on the same or separate
counterparts, each of which when so executed and delivered shall be
deemed to be an original and such counterparts together shall constitute
one and the same instrument and shall be effective as of the date hereof.
- 31 -
9.6 WAIVER OF RIGHTS. Any waiver of, or consent to depart from, the
requirements of any provision of this Agreement shall be effective only
if it is in writing and signed by the Party giving it, and only in the
specific instance and for the specific purpose for which it has been
given. No failure on the part of any Party to exercise, and no delay in
exercising, any right under this Agreement shall operate as a waiver of
such right. No single or partial exercise of any such right shall
preclude any other or further exercise of such right or the exercise of
any other right.
9.7 CURRENCY. Except as otherwise expressly provided in this Agreement, all
dollar amounts referred to in this Agreement are stated in the lawful
currency of the United States.
9.8 RELATIONSHIP OF PARTIES. This is an arms-length agreement between
separate legal entities and neither is the agent or employee of the other
for any purpose whatsoever. The Parties do not intend to create a
partnership or joint venture between themselves. Neither Party shall
have the right to bind the other to any agreement with a Person or to
incur any obligation or liability on behalf of the other Party.
9.9 DISPUTE RESOLUTION. The following procedure will be adhered to in all
disputes arising under this Agreement which the Parties cannot resolve
informally. The aggrieved Party shall notify the other Party in writing
of the nature of the dispute with as much detail as possible about the
deficient performance of the other Party. The project managers shall
meet (in person or by telephone) within seven (7) days after the date of
the written notification to reach an agreement about the nature of the
deficiency and the corrective action to be taken by the respective
Parties. The project managers shall each produce a report about the
nature of the dispute in detail to their respective management. If the
project managers are unable to agree on corrective action, senior
managers of the Parties having authority to resolve the dispute without
the further consent of any other person ("Management") shall meet or
otherwise act to facilitate an agreement within fourteen (14) days of the
date of the written notification. If Management cannot resolve the
dispute or agree upon a written plan of corrective action to do so within
seven (7) days after their initial meeting or other action, or if the
agreed-upon completion dates in the written plan of corrective action are
exceeded, either Party may request arbitration as provided for in this
Agreement. Except as otherwise specifically provided, neither Party
shall initiate arbitration or other legal action against the other Party
unless and until this dispute resolution procedure has been employed or
waived.
9.10 ARBITRATION. Provided that the Parties have first attempted to resolve
the dispute pursuant to Section 9.9, either Party may submit any dispute
between the Parties arising from or relating to this Agreement, including
any failure to agree on a matter requiring agreement, (but not any
dispute relating to the ownership of Intellectual Property Rights or the
improper disclosure or use of the 724 Technology), to arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association ("AAA"). The arbitration will be before a single
arbitrator selected by the New York office of the AAA. The arbitration
shall be in the English language. The arbitration shall take place in
Toronto, or in such other city agreed to by Licensor and Licensee.
- 32 -
9.11 ATTORNEYS FEES. If a legal action or arbitration proceeding is commenced
in connection with any dispute under this Agreement, the prevailing
party, as determined by the final decision of a court or arbitrators from
which no appeal can be taken, shall be entitled to attorneys' fees
actually incurred, costs and necessary disbursements incurred in
connection with such action or proceeding.
TO WITNESS their agreement, the Persons below have duly executed this Agreement
on the date first written above.
724 SOLUTIONS CORP. CITICORP STRATEGIC
TECHNOLOGY CORPORATION
By: /s/ X. XXXXXXXX By: /s/ XXXXXX X. XXXXX
-------------------- ------------------------
Name: X. XXXXXXXX Name: XXXXXX X. XXXXX
Title: President and Secretary Title: Vice President
EXHIBIT A
CITIBANK FEE PAYMENTS
Chart
Minimum
Worldwide
Annual
Licensor
Revenue to be
Worldwide Earned during
Number Worldwide the Previous Maximum Minimum
Users of Number of Year from Citibank Fee Citibank Fee
Licensed Licensed Licensed Payment Payment
Year Technology Affiliates Affiliates * (annualized) (annualized)
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
2 [****] [****] [****] [****]
------------------------------------------------------------------------------------------------------------------------------
3 [****] [****] [****] [****] [****]
------------------------------------------------------------------------------------------------------------------------------
4 [****] [****] [****] [****] [****]
------------------------------------------------------------------------------------------------------------------------------
5 [****] [****] [****] [****] [****]
------------------------------------------------------------------------------------------------------------------------------
*These numbers refer to all amounts earned by Licensor and its Affiliates
as determined by United States GAAP regardless of whether such earned
amounts constitute license fees, maintenance fees or otherwise and
whether or not collected. Furthermore, the Minimum Worldwide Annual
Licensor Revenue Earned from Licensed Affiliates amount is for purposes
of calculating any Citibank fee due, and not a guarantee or projection of
actual minimum revenues to be earned by Licensor.
1. Citibank shall pay to Licensor, during each of the first 5 years during
which this Master License Agreement remains in effect, fees in the
amounts calculated as set forth below.
2. The Citibank Fee Payment for Year 1 shall be [****]. The Citibank
Fee Payment for each of Years 2 through 5 shall be determined as follows:
(a) If at the beginning of the year:
(i) the Worldwide Number of Users of Licensed Technology is
greater than or equal to the number appearing in Column 1
(corresponding to the year in question) of the Chart set
forth above (the "Chart"); and
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 2 -
(ii) the Worldwide Number of Licensed Affiliates is greater
than or equal to the number appearing in Column 2
(corresponding to the year in question)of the Chart; and
(iii) the Worldwide Annual Licensor Revenue Earned from
Licensed Affiliates during the previous year by Licensor
is greater than or equal to the number appearing in
Column 3 (corresponding to the year in question) of the
Chart
then the Citibank Fee Payment for that year shall be the number
appearing in Column 4 (corresponding to the year in question) of
the Chart.
(b) If at the beginning of the year:
(i) the Worldwide Number of Users of Licensed Technology is
greater than or equal to the number appearing in Column 1
(corresponding to the year in question) of the Chart; and
(ii) the Worldwide Number of Licensed Affiliates is greater
than or equal to the number appearing in Column 2
(corresponding to the year in question) of the Chart; and
(iii) the Worldwide Annual Licensor Revenue Earned from
Licensed Affiliates during the previous year is less than
the number appearing in Column 3 (corresponding to the
year in question) of the Chart
then the Citibank Fee Payment for that year shall be the number
appearing in Column 4 (corresponding to the year in question) of
the Chart reduced by one half (1/2) of the amount by which the
number appearing in Column 3 (corresponding to the year in
question) of the Chart exceeds the amount of Worldwide Annual
Licensor Revenue Earned during the previous year.
(c) In any other combination of events, the Citibank Fee Payment for
that year shall be the number appearing in Column 5 (corresponding
to the year in question) of the Chart.
3. PAYMENT TERMS FOR CITIBANK FEE PAYMENTS.
(a) Year 1 begins, upon execution of this Master License Agreement, on
the date first written above. Commencing thereon, payment for Year 1
shall be made in quarterly installments of [****]. At the end of each
quarter of Year 1, Licensor shall provide Citibank with (I) copies of
each of the Licensed Affiliate Agreements entered into during such
quarter; and (II) an accounting of the total amount of revenue, whether
license fees, maintenance fees or otherwise, that Licensor has earned
from ALL Licensed Affiliates. No later than thirty (30) days after the
end of Year 1, Licensor shall refund to Citibank the amount (up to a
maximum of [****]), if any, by which the total amount of revenue,
whether license fees, maintenance fees or otherwise, that Licensor has
earned from ALL Licensed Affiliates during Year 1 exceeds [****],
plus interest thereon at LIBOR for the last day of Year 1.
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 3 -
(b) Commencing with Year 2, at the end of each quarter of years 2-5 (but
on the second to the last day of the quarter with respect to each year's
fourth quarter), Licensor shall provide Citibank with (I) copies of each
of the Licensed Affiliate Agreements entered into during such quarter;
and (II) an accounting of the total amount of revenue, whether license
fees, maintenance fees or otherwise, that Licensor has earned from ALL
Licensed Affiliates. No later than the last day of each of years 0-0,
Xxxxxxxx shall pay to Licensor the amount, if any, by which the Worldwide
Annual Licensor Revenue Earned during such year is less than the annual
Citibank Fee Payment as calculated pursuant to Section 2 above.
(c) Computation of Number of Users. In computing the number of Users for
the purposes of Citibank Fee Payments, a Customer shall have had access
to the Licensed Technology and have utilized the Licensed Technology
through a Licensed Channel at least two times in a particular calendar
month in order to be considered to be a User. Furthermore, a Customer of
a Licensed Affiliate will be deemed to be one User regardless of the
numbers of services that the Customer receives through the Licensed
Technology located at the Licensed Affiliate's Designated Site.
EXHIBIT B
FUNCTIONAL AND PERFORMANCE SPECIFICATIONS
OF THE SOFTWARE
The Licensed Technology consists of the 724 Solutions Financial Services
Platform (the "724 FSP"). This Exhibit states the functional and performance
specifications (the "Specifications") of the 724 FSP.
INTRODUCTION.
724 FSP is a software platform which enables financial institutions to
deliver their products and services (including banking, brokerage, [****],
financial services and e-commerce) packaged with other content (including
news, weather, horoscopes, sports, stock portfolio trackers) securely,
remotely and electronically in real time via any device connected to a
network (including the Internet, cable and satellite TV networks, cellular
networks, LANs, wired telephone networks).
724 FSP enables such capability by interfacing with financial institutions'
host and core processing systems through a middleware platform layer running
a common financial exchange protocol (including OFX, or the Integrion GOLD
messaging standard) as well as interfacing with certain content providers
using an agreed protocol (including XML).
724 FSP stores a "persona" for each of the financial institutions' customers
(which for the purposes of this Exhibit shall be referred to as the "User")
which contains their preferences. The information gathered by 724 FSP on
behalf of the User from the financial institution and the content providers
is then packaged and delivered to the device the User is using at that
particular time via the network to which the User is connected. 724 FSP
packages the information, formats it in a manner that best fits the device
being used by the User (including screen format, menu layering, font size and
device core functionality) and which can be transmitted to the User's device
via the network to which the device is connected (using an appropriate API
and protocol for transmission).
724 FSP enables the User to request certain information or initiate certain
transactions from/with the financial institution or content provider,
converting between formats, protocols and APIs in the process as described
above.
724 FSP can "push" information (including Content) to Users based upon User
configurable criteria (including stock alerts, and [****]), "pull"
information on demand (including balance of account, stock portfolio balance
and transaction journal) or execute transactions and receive confirmation (if
the financial institution sends such confirmation).
The 724 FSP is designed upon the architecture shown in Figure 1 and consists
of the components described below:
Channels: Customers can use to access the rest of the 724 FSP.
Core Services: Licensor services that operate the 724 FSP.
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 2 -
Content Services: Licensor services that manage the retrieval and delivery
of information between the content provider and the Customer.
Content Providers: Third parties that provide the information and
transactional services.
Network Communications: Communications languages and protocols supported by
the 724 FSP.
Security: Policies, controls, procedures and mechanisms for protecting the
privacy and information assets of all Users and content providers with
respect to the 724 FSP.
CHANNELS.
Channels currently include: digitally enabled wireless telephones using a
xxxxx.xxx browser, pc channel, html channel and PalmPilot connected
organizers versions 3.02 OS and higher excluding Palm VII.devices.
Additional channels in the future may include [****].
CORE SERVICES.
The Core Services provide the ability to create a 724 FSP logon and to manage
a User profile. The Core Services include the following:
1. 724 FSP AppCenter. The 724 FSP AppCenter provides the Inprise AppCenter
for managing distributed applications.
2. Administration Service. The Administration Service provides the
capability to manage and store the configuration settings for the 724
FSP.
3. Authentication Service. The Authentication Service provides the
capability to manage user identifications and passwords for the 724 FSP.
The Authentication Service will ensure that all 724 FSP passwords comply
with criteria defined by Licensee or Citibank.
4. Channel Service. The Channel Service manages the User's request.
5. Profile Service. The Profile Service manages User profiles for
preferences including watchlists and other third party content.
6. Protocol Gateway Service. The Protocol Gateway Service batches and
routes customer requests and compiles a detailed log entry for each
request.
7. Session Service. The Session Service provides network persistence,
which allows the selected state to be maintained, based upon specific
transactions or for a specific time duration.
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 3 -
CONTENT SERVICES
Content Services enable the 724 FSP to deliver information from types of Content
Providers to Users. The Content Services include the following:
1. [****]
2. [****]
3. [****]
4. [****]
5. [****]
6. [****]
7. [****]
8. [****]
FINANCIAL INSTITUTION FUNCTIONALITY.
The 724 FSP provides the interfaces and transport means required to deliver
information from financial institutions to the Client Devices. The
functionality includes the following 724 Modules:
1. Banking. Banking shall include at minimum the following services.
Accounts - allows the User to create a banking relationship on the 724
FSP, designate a banking relationship as their main relationship,
[****].
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 4 -
2. Brokerage. Brokerage shall include at minimum the following services.
[****].
CONTENT FUNCTIONALITY.
The 724 FSP provides the interfaces and transport required to deliver
information from Content Providers to the Client Devices. The functionality
includes the following:
1. Notification and Lifestyle Services. Notification and Lifestyle
Services may include but are not limited to the following:
2. [****]
3. [****]
4. [****]
5. [****]
6. [****]
7. [****]
8. [****]
9. [****]
All Lifestyle Services and information from public stock exchanges shall be
procured solely by Licensee or its Affiliates.
FINANCIAL INSTITUTION AND CONTENT PROVIDER INTERFACES.
1. Interface to Banking and Brokerage Providers. The 724 FSP provides an
interface to Banking, Brokerage, Insurance Financial Services and
E-commerce providers based upon open industry standards. In addition
to other industry standard interfaces, the 724 FSP shall support an
OFX interface to Banking and Brokerage Content Providers. This
interface shall support [****] with the following provisions: i) the
724 FSP OFX interface does not require crash recovery facilities,
transaction management, or data synchronization of multiple clients.
ii) the 724 FSP OFX interface includes several OFX extensions defined
by Licensor. These extensions begin with the [****] prefix. A
complete
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 5 -
list of the OFX messages supported by the 724 FSP OFX interface
is included in Tables 1.1, 1.2, and 1.3.
2. Interface to Notification Service and Lifestyle Content Providers. The
724 FSP supports interfaces to Notification and Lifestyle Content
Providers based upon open industry standards.
3. Interface to Client Devices. The 724 FSP provides the interfaces
necessary to deliver the Content Provider Services to the Client
Devices.
SECURITY AND PRIVACY. In accordance with Sections 7.3 and 7.4, the 724 FSP
will use best efforts to comply with all of the policies, controls and
procedures defined by Citibank's or its Affiliates' Corporate Information
Security Organization and other divisions, from time to time, for protecting
the privacy and information assets of Users.
724 FSP DEPLOYMENT.
System Requirements. The 724 FSP can be deployed using the System
Requirements specified by Licensor from time to time. The System
Requirements shall state the number of simultaneous User sessions that can be
supported by the 724 FSP Platform with a particular configuration.
PERFORMANCE SPECIFICATIONS.
The 724 FSP shall be capable of [****].
The 724 FSP shall process data [****].
The 724 FSP shall be readily scaleable to support more Users [****].
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 1 -
TABLE 1.1 OFX MESSAGE INTERFACE - BANKING & BROKERAGE
(MANDATORY MESSAGES)
[****]
TABLE 1.2 OFX MESSAGE INTERFACE - BANKING
[****]
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 2 -
TABLE 1.3 OFX MESSAGE INTERFACE - BROKERAGE
[****]
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
EXHIBIT C
RESOURCE COMMITMENTS OF LICENSOR
Licensor and/or 724 Solutions will commit the following resources for the
purpose of assisting the evaluation and implementation of the Licensed
Technology by Citibank and its Affiliates:
(a) Client Executive: A minimum of one fulltime resource will be
assigned to Citibank with the responsibility to introduce the 724
Technology to each Affiliates of Citibank interested in licensing
the 724 Technology and/or is referred to Licensor by Citibank
officers and employees. The Client Executive will have access to
resources from Licensor and its Affiliates that are necessary in
order for the Affiliate to evaluate the technology and understand
how the technology will be implemented and add value to their
specific operation. The Client Executive will commit to providing
information and/or presentations to support the evaluation
process in a timely manner. In addition the Client Executive
will be responsible for finalizing the Affiliate Agreement and
thereafter managing the relationship between the Affiliate and
Licensor and its Affiliates to ensure that the terms of the
Affiliate Agreement are met.
(b) Program Director: A minimum of one fulltime resource will be
assigned to Citibank with the responsibility to coordinate and
manage implementation projects throughout Citibank in a manner
that leverages the best practices that have been developed from
one implementation to the next. The Program Director will have
access to resources of Licensor and its Affiliates and partners
necessary to implement the 724 Technology as quickly and
effectively as possible.
(c) VP Customer Services: The Customer Service organization will be
staffed to provide necessary support to the Affiliates of
Citibank with respect to hours of operation and geographic points
of presence.
(d) EVP Field Operations: On a mutually agreed upon schedule or as
required basis, the Field Operations EVP and the appropriate
executives from eCiti will review progress being made with
respect to number of Affiliates that are implementing the
Technology as well as the volume of customers using the
Technology in each Affiliate and throughout the total
organization. Areas of improvement will be identified and action
steps executed to ensure continuous improvement in both the
numbers of Affiliates and the total volume of Users.
EXHIBIT C-1
CITIBANK CONSULTING SERVICES AND PAYMENTS BY LICENSOR
1. CONSULTING SERVICES TO BE PROVIDED BY CITIBANK. From the date of
execution of this Agreement and for one (1) year thereafter, Citibank
will provide certain consulting services ("Citi Consulting Services") to
Licensor and its Affiliates including, but not limited to, the
following:
(a) the promotion of the Licensed Technology as the standard wireless
financial services platform for all Affiliates of Citibank;
(b) assistance in the ongoing work between Licensee and its
Affiliates technical personnel and the Citibank Affiliates
information technology function for the purpose of facilitating
adoption and implementation of the Licensed Technology by
Affiliates of Citibank;
(c) advisory services relating to third party technology providers,
Content providers, device manufacturers and other similar
services in connection with the implementation of the Licensed
Technology by Affiliates of Citibank; and
(d) advisory services in connection with the negotiation and
execution of Licensed Affiliate Agreements.
In no event shall Citibank Consulting Services include the development or
conveyance to Licensor of any Intellectual Property Rights.
2. RESOURCES TO BE PROVIDED BY CITIBANK. Citibank will provide the
following resources (Citi Consulting Resources") in order to carry out
the Citi Consulting Services:
(a) As requested by Licensor and/or its Affiliates, subject to a
maximum of two days per week, the e-Citi Vice President, Access
Devices and Distribution Technologies.
(b) Vice President level project management resources as requested by
Licensor and/or its Affiliates, subject to a maximum of 40 man
hours per week.
(c) Director level technical resources as requested by Licensor
and/or its Affiliates, subject to a maximum of 40 man hours per
week.
3. PAYMENT OF FEES FOR CITI CONSULTING SERVICES. Licensor will pay to
Citibank an aggregate of $[****], payable $[****] quarterly in
arrears, plus $[****] for each Licensed Affiliate Agreement executed
during the first year of the Master Technology License Agreement (the
Citi Consulting Fee") in consideration for the Citi Consulting Services
to be provided hereunder. Citibank shall be required to provide
quarterly report statements to Licensor setting out the resources
allocated and projects undertaken during the quarter. In the event that
Citibank has not provided the Citi Consulting Services and Citi
Consulting Resources in
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 2 -
accordance with Sections 1 and 2 of this Exhibit C-1, then Citibank's
sole liability shall be to, and Citibank shall, within 30 days of
the end of such quarter, repay to Licensor the Citi Consulting Fee in
respect of such quarter. Such repayment shall be Licensor's sole remedy
for failure by Citibank to provide the Citi Consulting Services and Citi
Consulting Resources, and such failure shall not constitute a breach of
this Master Technology License Agreement by Citibank.
EXHIBIT D
FORM OF SOURCE CODE ESCROW AGREEMENT
Account Number ______________________
This Agreement is effective __________________, 1999 among DSI Technology Escrow
Services, Inc. ("DSI"), 724 Solutions Inc. ("Depositor") and Citibank
("Preferred Beneficiary"), who collectively may be referred to in this Agreement
as "the parties."
A. Depositor and Preferred Beneficiary have entered or will enter into a
license agreement regarding certain proprietary technology (the "Licensed
Technology") of Depositor (referred to in this Agreement as the "License
Agreement").
B. Depositor desires to avoid disclosure of its proprietary technology
except under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is important
to Preferred Beneficiary in the conduct of a portion of its business and,
therefore, Preferred Beneficiary needs access to the proprietary technology
under certain limited circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with
DSI to provide for the retention, administration and controlled access of the
proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the License
Agreement pursuant to 00 Xxxxxx Xxxxxx [Bankruptcy] Code, Section 365(n).
NOW THEREFORE, in consideration of the mutual promises contained herein, the
parties hereto agree as follows:
ARTICLE 1 -- DEPOSITS
1.1 OBLIGATION TO MAKE DEPOSIT. Within thirty (30) days of the signing of
this Agreement by the parties, Depositor shall deliver to DSI the proprietary
technology and other materials ("Deposit Materials") identified on an Exhibit A.
If Exhibit A is applicable, it is to be prepared and signed by Depositor and
Preferred Beneficiary. DSI shall have no obligation with respect to the
preparation, signing or delivery of Exhibit A.
1.2 IDENTIFICATION OF TANGIBLE MEDIA. Prior to the delivery of the Deposit
Materials to DSI, Depositor shall conspicuously label for identification each
document, magnetic tape, disk, or other tangible media upon which the Deposit
Materials are written or stored. Additionally, Depositor shall complete Exhibit
B to this Agreement by listing each such tangible media by the item label
description, the type of media and the quantity. The Exhibit B must be signed
by
- 2 -
Depositor and delivered to DSI with the Deposit Materials. Unless and until
Depositor makes the initial deposit with DSI, DSI shall have no obligation with
respect to this Agreement, except the obligation to notify the parties regarding
the status of the deposit account as required in Section 2.2 below.
1.3 DEPOSIT INSPECTION. When DSI receives the Deposit Materials and the
Exhibit B, DSI will conduct a deposit inspection by visually matching the
labeling of the tangible media containing the Deposit Materials to the item
descriptions and quantity listed on the Exhibit B. In addition to the deposit
inspection, Preferred Beneficiary may elect to cause a verification of the
Deposit Materials in accordance with Section 1.6 below.
1.4 ACCEPTANCE OF DEPOSIT. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item descriptions
and quantity on Exhibit B, DSI will date and sign the Exhibit B and mail a copy
thereof to Depositor and Preferred Beneficiary. If DSI determines that the
labeling does not match the item descriptions or quantity on the Exhibit B, DSI
will (a) note the discrepancies in writing on the Exhibit B; (b) date and sign
the Exhibit B with the exceptions noted; and (c) mail a copy of the Exhibit B to
Depositor and Preferred Beneficiary. DSI's acceptance of the deposit occurs
upon the signing of the Exhibit B by DSI. Delivery of the signed Exhibit B to
Preferred Beneficiary is Preferred Beneficiary's notice that the Deposit
Materials have been received and accepted by DSI.
1.5 DEPOSITOR'S REPRESENTATIONS. Depositor represents as follows:
a. Depositor lawfully possesses or has sufficient rights in all of
the Deposit Materials deposited with DSI;
b. With respect to all of the Deposit Materials, Depositor has the
right and authority to grant to DSI and Preferred Beneficiary the
rights as provided in this Agreement or in the License Agreement;
c. The Deposit Materials consist of the proprietary technology and
other materials identified either in the License Agreement or
Exhibit A, as the case may be; and
d. The Deposit Materials are readable and useable in their current
form or, if the Deposit Materials are encrypted, the decryption
tools and decryption keys have also been deposited.
1.6 VERIFICATION. Preferred Beneficiary shall have the right, at Preferred
Beneficiary's expense, to cause DSI to perform a verification of any Deposit
Materials to verify that the Deposit Materials are executable on the appropriate
computer and are capable of compiling the object code of the Licensed
Technology. Only DSI may perform the verification and such verification shall
take place either at DSI's site or Depositor's site, and not a Preferred
Beneficiary's site. Only staff of DSI (and if requested by DSI, staff of
Depositor) shall be in attendance for any such verification. DSI shall provide
Preferred Beneficiary with a certificate attesting to the results of the
verification process. The verification right in this Section 1.6 may be
exercised only once in respect of each version of the Deposit Materials.
- 3 -
1.7 DEPOSIT UPDATES. Unless otherwise provided by the License Agreement,
Depositor shall update the Deposit Materials within 60 days of delivery to
Preferred Beneficiary of a new Upgrade of the Licensed Technology under the
License Agreement. Such updates will be added to the existing deposit. All
deposit updates shall be listed on a new Exhibit B and the new Exhibit B shall
be signed by Depositor. Each Exhibit B will be held and maintained separately
within the escrow account. An independent record will be created which will
document the activity for each Exhibit B. The processing of all deposit updates
shall be in accordance with Sections 1.2 through 1.6 above. All references in
this Agreement to the Deposit Materials shall include the initial Deposit
Materials and any updates.
1.8 REMOVAL OF DEPOSIT MATERIALS. The Deposit Materials may be removed
and/or exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 CONFIDENTIALITY. DSI shall maintain the Deposit Materials in a secure,
environmentally safe, locked facility which is accessible only to authorized
representatives of DSI. DSI shall have the obligation to reasonably protect the
confidentiality of the Deposit Materials. Except as provided in this Agreement,
DSI shall not disclose, transfer, make available, or use the Deposit Materials.
DSI shall not disclose the content of this Agreement to any third party. If DSI
receives a subpoena or other order of a court or other judicial tribunal
pertaining to the disclosure or release of the Deposit Materials, DSI will
immediately notify the parties to this Agreement. It shall be the
responsibility of Depositor and/or Preferred Beneficiary to challenge any such
order; provided, however, that DSI does not waive its rights to present its
position with respect to any such order. DSI will not be required to disobey
any court or other judicial tribunal order. (See Section 7.5 below for notices
of requested orders.)
2.2 STATUS REPORTS. DSI will issue to Depositor and Preferred Beneficiary a
report profiling the account history at least semi-annually. DSI may provide
copies of the account history pertaining to this Agreement upon the request of
any party to this Agreement.
2.3 AUDIT RIGHTS. During the term of this Agreement, Depositor and Preferred
Beneficiary shall each have the right to inspect the written records of DSI
pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice. For greater certainty,
the audit rights in this Section 2.3 do not permit Preferred Beneficiary to have
access to the Deposit Materials.
ARTICLE 3 -- GRANT OF RIGHTS TO DSI
3.1 RIGHT TO MAKE COPIES. DSI shall have the right to make copies of the
Deposit Materials as reasonably necessary to perform this Agreement. DSI shall
copy all copyright, nondisclosure, and other proprietary notices and titles
contained on the Deposit Materials onto any copies made
- 4 -
by DSI. With all Deposit Materials submitted to DSI, Depositor shall provide
any and all instructions as may be necessary to duplicate the Deposit
Materials including but not limited to the hardware and/or software needed.
3.2 RIGHT TO TRANSFER UPON RELEASE. Depositor hereby grants to DSI the right
to transfer the Deposit Materials to Preferred Beneficiary upon any release of
the Deposit Materials for use by Preferred Beneficiary in accordance with
Section 4.5. Except upon such a release or as otherwise provided in this
Agreement, DSI shall not transfer the Deposit Materials.
ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 RELEASE CONDITION. As used in this Agreement, "Release Condition" shall
mean any of the following:
a. Depositor ceases to carry on its business due to its winding up,
bankruptcy or liquidation; or
b. Depositor is in material breach of its obligations to provide the
services set out in paragraph (i) under "Performance Levels" in
Exhibit "F" of the License Agreement in respect of a Level 1
problem and such breach is not remedied within 30 days after
written notice of the breach is given to Depositor by Preferred
Beneficiary; or
c. Depositor is in material breach of any of its obligations set out
in the License Agreement where such breach is explicitly
identified as a Release Condition and such breach is not remedied
within 30 days after written notice of the breach is given to
Depositor by Preferred Beneficiary.
4.2 FILING FOR RELEASE. If Preferred Beneficiary believes in good faith that
the Release Condition has occurred, Preferred Beneficiary may provide to DSI
written notice of the occurrence of the Release Condition and a request for the
release of the Deposit Materials. Upon receipt of such notice, DSI shall
provide a copy of the notice to Depositor by the means required under Section
8.2.
4.3 CONTRARY INSTRUCTIONS. Depositor shall have fifteen (15) business days
from the date of receipt of the notice referred to in Section 4.2 to deliver to
DSI Contrary Instructions. "Contrary Instructions" shall mean the written
representation by Depositor that the Release Condition has not occurred or has
been cured. Upon receipt of Contrary Instructions, DSI shall send a copy to
Preferred Beneficiary by the means required under Section 8.2. Additionally,
DSI shall notify both Depositor and Preferred Beneficiary that there is a
dispute to be resolved pursuant to the Dispute Resolution section (Section 7.3)
of this Agreement. Subject to Section 5.2, DSI will continue to store the
Deposit Materials without release pending (a) joint instructions from Depositor
and Preferred Beneficiary; (b) resolution pursuant to the Dispute Resolution
provisions; or (c) order of a court.
- 5 -
4.4 RELEASE OF DEPOSIT. If DSI does not receive Contrary Instructions from
the Depositor within the time period specified in Section 4.3, DSI is authorized
to release the Deposit Materials to the Preferred Beneficiary or, if more than
one beneficiary is registered to the deposit, to release a copy of the Deposit
Materials to the Preferred Beneficiary. However, DSI is entitled to receive any
fees due DSI before making the release. Any copying expense in excess of $300
will be chargeable to Preferred Beneficiary. DSI's obligations to maintain the
Deposit Materials will terminate upon the release of the Deposit Materials held
by DSI.
4.5 RIGHT TO USE FOLLOWING RELEASE. Upon release of the Deposit Materials in
accordance with this Article 4:
a. Preferred Beneficiary shall have and Depositor hereby grants to
Preferred Beneficiary a non-exclusive, non-transferable license
for Preferred Beneficiary to use the Deposit Materials solely at
the Designated Site and only for the purposes of supporting the
use by Preferred Beneficiary and its Authorized Affiliates of the
Licensed Technology in accordance with the License Agreement and
this Section 4.5. Any modifications to the Licensed Technology
developed by the Preferred Beneficiary ("Modifications") as part
of correcting errors in the Licensed Technology which are compiled
into binary form by the Preferred Beneficiary or otherwise used in
a production environment shall be deemed for all purposes to be
part of the Licensed Technology and shall be used and treated as
such by Preferred Beneficiary strictly in accordance with the
License Agreement. Depositor shall not be responsible for any
Modifications, or the compatibility of any Licensed Technology,
equipment or service with such Modifications, or for support or
maintenance of the Modifications, or for errors caused to the base
Licensed Technology caused by the Modifications. Preferred
Beneficiary acknowledges that the Deposit Materials constitute
confidential, trade secret and very valuable information of
Depositor, which information Preferred Beneficiary agrees not to
access, use or copy other than in accordance with the terms of
this Article 4.5 and the License Agreement.
b. Preferred Beneficiary agrees that the Deposit Materials and the
Modifications shall be deemed to be Confidential Information of
Depositor and treated as and included as part of the Licensed
Technology, and Preferred Beneficiary's obligations and
Depositor's rights with respect to Confidential Information and
the Licensed Technology under the License Agreement shall apply in
all respects to the Deposit Materials and the Modifications except
as otherwise expressly set out in this Article 4.5.
c. Preferred Beneficiary shall:
i. use its utmost care to ensure that the persons
authorized hereunder to have access to the Deposit
Materials keep the Deposit Materials secret and
confidential;
- 6 -
ii. not release or make any use of the Deposit Materials
available to any person other than to employees and
authorized contractors of Preferred Beneficiary working
at the Designated Site with a need for access to enable
Preferred Beneficiary to exercise its rights under this
Article 4.5;
iii. instruct all such employees and authorized contractors of
Preferred Beneficiary to keep the Deposit Materials
confidential and have all such persons execute the form
of proprietary rights protection agreement attached
hereto as Exhibit D at the time such person is given
access to the Deposit Materials;
iv. not copy the Deposit Materials other than as reasonably
required for the purposes set out in Section 4.5(a);
v. inform and provide Depositor with copies of, and all
documentation for, all Modifications at the time such
Modification is put into production by Preferred
Beneficiary;
vi. not provide any Competitor of 724 Solutions with access
to the Deposit Materials;
vii. not use the Deposit Materials to expand the scope of use
of the Licensed Technology beyond the Licensed Modules
and Licensed Channels referred to in the License
Agreement; and
viii. not use the Deposit Materials to develop any
modifications, enhancements or additions to the Licensed
Technology except such as are required to correct errors
in the Licensed Technology.
ARTICLE 5 -- TERM AND TERMINATION
5.1 TERM OF AGREEMENT. The initial term of this Agreement is for a period
of one year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) Depositor and Preferred Beneficiary jointly
instruct DSI in writing that the Agreement is terminated; or (b) the
Agreement is terminated by DSI for nonpayment in accordance with Section 5.2;
or (c) the Agreement is terminated pursuant to Section 5.3. If the Deposit
Materials are subject to another escrow agreement with DSI, DSI reserves the
right, after the initial one year term, to adjust the anniversary date of
this Agreement to match the then prevailing anniversary date of such other
escrow arrangements.
5.2 TERMINATION FOR NONPAYMENT. In the event of the nonpayment of fees owed
to DSI, DSI shall provide written notice of delinquency to all parties to this
Agreement. Any party to this Agreement shall have the right to make the payment
to DSI to cure the default. If the past due payment is not received in full by
DSI within one month of the date of such notice, then DSI shall have the right
to terminate this Agreement at any time thereafter by sending written notice
- 7 -
of termination to all parties. DSI shall have no obligation to take any
action under this Agreement so long as any payment due to DSI remains unpaid.
5.3 DISPOSITION OF DEPOSIT MATERIALS UPON TERMINATION. Upon termination of
this Agreement, DSI shall destroy, return, or otherwise deliver the Deposit
Materials in accordance with Depositor's instructions. If there are no
instructions, DSI may, at its sole discretion, destroy the Deposit Materials or
return them to Depositor. DSI shall have no obligation to return or destroy the
Deposit Materials if the Deposit Materials are subject to another escrow
agreement with DSI.
5.4 SURVIVAL OF TERMS FOLLOWING TERMINATION. Upon termination of this
Agreement, the following provisions of this Agreement shall survive:
a. The obligations of confidentiality with respect to the Deposit
Materials;
b. The rights granted in the sections entitled Right to Transfer Upon
Release (Section 3.2) and Right to Use Following Release (Section
4.5), if a release of the Deposit Materials has occurred prior to
termination;
c. The obligation to pay DSI any fees and expenses due;
d. The provisions of Article 7; and
e. Any provisions in this Agreement which specifically state they
survive the termination or expiration of this Agreement.
ARTICLE 6 -- DSI'S FEES
6.1 FEE SCHEDULE. DSI is entitled to be paid its standard fees and expenses
applicable to the services provided. Preferred Beneficiary is obligated to pay
all such fees and expenses associated with this Agreement. DSI shall notify the
Preferred Beneficiary at least 90 days prior to any increase in fees. For any
service not listed on DSI's standard fee schedule, DSI will provide a quote
prior to rendering the service, if requested.
6.2 PAYMENT TERMS. DSI shall not be required to perform any service unless
the payment for such service and any outstanding balances owed to DSI are paid
in full by Preferred Beneficiary. Fees are due upon receipt of a signed
contract or receipt of the Deposit Materials whichever is earliest. If
invoiced fees are not paid, DSI may terminate this Agreement in accordance
with Section 5.2. Late fees on past due amounts shall accrue interest at the
rate of one and one-half percent per month (18% per annum) from the date of the
invoice.
ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 RIGHT TO RELY ON INSTRUCTIONS. DSI may act in reliance upon any
instruction, instrument, or signature reasonably believed by DSI to be genuine,
and received from the parties' designated contacts set out in Exhibit C, or if
the designated contact is no longer employed by the party in
- 8 -
that capacity, a representative of the party of the same or greater title or
authority. DSI may assume that any written notice, request, or instruction
received from the respective designated contact is authorized by the party
sending it. DSI shall not be responsible for failure to act as a result of
causes beyond the reasonable control of DSI.
7.2 INDEMNIFICATION. DSI shall be responsible to perform its obligations
under this Agreement and to act in a reasonable and prudent manner with
regard to this escrow arrangement. Provided DSI has acted in the manner
stated in the preceding sentence, Depositor and Preferred Beneficiary each
agree to indemnify, defend and hold harmless DSI from any and all claims,
actions, damages, arbitration fees and expenses, costs, attorney's fees and
other liabilities incurred by DSI relating in any way to this escrow
arrangement.
7.3 DISPUTE RESOLUTION. Any dispute relating to or arising from this
Agreement shall be resolved by arbitration under the Commercial Rules of the
American Arbitration Association. Unless otherwise agreed by Depositor and
Preferred Beneficiary, arbitration will take place in New York, NY. Any
court having jurisdiction over the matter may enter judgment on the award of
the arbitrator(s).
7.4 CONTROLLING LAW. This Agreement is to be governed and construed in
accordance with the laws of the State of New York, without regard to its
conflict of law provisions.
7.5 NOTICE OF REQUESTED ORDER. If any party intends to obtain an order
from the arbitrator or any court of competent jurisdiction which may direct
DSI to take, or refrain from taking any action, that party shall:
a. Give DSI at least two business days' prior notice of the hearing;
b. Include in any such order that, as a precondition to DSI's
obligation, DSI be paid in full by the Preferred Beneficiary for
any past due fees and be paid for the reasonable value of the
services to be rendered pursuant to such order; and
c. Ensure that DSI not be required to deliver the original (as
opposed to a copy) of the Deposit Materials if DSI may need to
retain the original in its possession to fulfill any of its other
duties.
ARTICLE 8 -- GENERAL PROVISIONS
8.1 ENTIRE AGREEMENT. This Agreement, which includes the Exhibits
described herein, embodies the entire understanding among the parties with
respect to its subject matter and supersedes all previous communications,
representations or understandings, either oral or written. DSI is not a party
to the License Agreement between Depositor and Preferred Beneficiary and has
no knowledge of any of the terms or provisions of any such License Agreement.
DSI's only obligations to Depositor or Preferred Beneficiary are as set
forth in this Agreement. No amendment or modification of this Agreement shall
be valid or binding unless signed by all the parties hereto, except that
Exhibit A need not be signed by DSI, Exhibit B need not be signed by
Preferred Beneficiary and Exhibit C need not be signed.
- 9 -
8.2 NOTICES. All notices, invoices, payments, deposits and other
documents and communications shall be given to the parties at the addresses
specified in the attached Exhibit C. It shall be the responsibility of the
parties to notify each other as provided in this Section in the event of a
change of address. The parties shall have the right to rely on the last known
address of the other parties. Unless otherwise provided in this Agreement,
all notices under Article 4 or related to Section 7.3 shall be delivered by
overnight courier delivery by a nationally recognized courier company
(currently including Federal Express and UPS).
8.3 SEVERABILITY. In the event any provision of this Agreement is found
to be invalid, voidable or unenforceable, the parties agree that unless it
materially affects the entire intent and purpose of this Agreement, such
invalidity, voidability or unenforceability shall affect neither the validity
of this Agreement nor the remaining provisions herein, and the provision in
question shall be deemed to be replaced with a valid and enforceable
provision most closely reflecting the intent and purpose of the original
provision.
8.4 NON-ASSIGNMENT. DSI shall not be entitled to assign this Agreement
without the prior written consent of Depositor and Preferred Beneficiary.
Preferred Beneficiary may not assign this Agreement without the prior written
consent of Depositor and DSI, provided that Preferred Beneficiary, without
such consent, may assign this Agreement to an entity to whom Preferred
Beneficiary is permitted to assign its rights under the License Agreement in
accordance with the terms of the License Agreement. This Agreement shall be
binding upon and shall inure to the benefit of the successors and permitted
assigns of the parties. However, DSI shall have no obligation in performing
this Agreement to recognize any successor or assign of Depositor or Preferred
Beneficiary unless DSI receives clear, authoritative and conclusive written
evidence of the change of parties.
8.5 DEFINITIONS. Capitalized terms not otherwise defined herein shall be
given the meaning ascribed to them in the License Agreement.
8.6 REGULATIONS. Depositor and Preferred Beneficiary are responsible for
and warrant compliance with all applicable laws, rules and regulations,
including but not limited to customs laws, import, export, and re-export laws
and government regulations of any country from or to which the Deposit
Materials may be delivered in accordance with the provisions of this
Agreement.
724 Solutions Inc.
Depositor Preferred Beneficiary
By:____________________________ By:____________________________
Name:__________________________ Name:__________________________
Title:_________________________ Title:_________________________
Date:__________________________ Date:__________________________
- 10 -
DSI Technology Escrow Services, Inc.
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
Date:___________________________________________
- 11 -
EXHIBIT A
TO THE FORM OF SOURCE CODE ESCROW AGREEMENT
MATERIALS TO BE DEPOSITED
Account Number ______________________
Depositor represents to Preferred Beneficiary that Deposit Materials
delivered to DSI shall consist of the following:
[describe Source Code; exclusive of source code for Third Party Materials; list
tools, development environment, custom libraries, dll's etc.]
724 Solutions Inc.
Depositor Preferred Beneficiary
By:____________________________ By:____________________________
Name:__________________________ Name:__________________________
Title:_________________________ Title:_________________________
Date:__________________________ Date:__________________________
- 12 -
EXHIBIT B
TO THE FORM OF SOURCE CODE ESCROW AGREEMENT
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name________________________________________________________
Account Number________________________________________________________________
Product Name____________________________________Version_______________________
(PRODUCT NAME WILL APPEAR ON ACCOUNT HISTORY REPORT)
DEPOSIT MATERIAL DESCRIPTION:
Quantity Media Type & Size Label Description of Each Separate Item
(PLEASE USE OTHER SIDE IF ADDITIONAL SPACE IS NEEDED)
________ Disk 3.5" or ____
________ DAT tape ____mm
________ CD-ROM
________ Data cartridge tape ____
________ TK 70 or ____ tape
________ Magnetic tape ____
________ Documentation
________ Other ____________________
PRODUCT DESCRIPTION:
Operating System______________________________________________________________
Hardware Platform_____________________________________________________________
DEPOSIT COPYING INFORMATION:
Is the media encrypted? Yes / No If yes, please include any passwords and the
decryption tools.
Encryption tool name___________________________________ Version_______________
Hardware required_____________________________________________________________
Software required_____________________________________________________________
I certify for DEPOSITOR that the DSI has inspected and accepted the above
above described Deposit Materials materials (ANY EXCEPTIONS ARE NOTED
have been transmitted to DSI: ABOVE):
Signature________________________ Signature________________________
Print Name_______________________ Print Name_______________________
Date_____________________________ Date Accepted____________________
Exhibit B#_______________________
Send materials to: DSI, 0000 Xxx Xxxx Xxxxx, #000, Xxx Xxxxx, XX 00000
(000) 000-0000
- 13 -
EXHIBIT C
TO THE FORM OF SOURCE CODE ESCROW AGREEMENT
DESIGNATED CONTACT
Account Number ______________________
Notices, deposit material returns and
communications to Depositor
should be addressed to:
Company Name: _______________________
Address:_____________________________
_____________________________
_____________________________
Designated Contact:__________________
Telephone:___________________________
Facsimile:___________________________
Notices and communications to Invoices to Preferred Beneficiary
Preferred Beneficiary should be should be addressed to:
addressed to:
Company Name:________________________ ____________________________________
Address:_____________________________ ____________________________________
_____________________________ ____________________________________
_____________________________ ____________________________________
Designated Contact:__________________ Designated Contact:_________________
Telephone:___________________________ ____________________________________
Facsimile:___________________________ P.O.#, IF REQUIRED:_________________
Notices from Depositor or Preferred Beneficiary to change its respective
designated contact must be given in writing to all the other parties by the
designated contact or an authorized employee of Depositor or Preferred
Beneficiary.
Contracts, Deposit Materials and Invoice inquiries and fee remittances
notices to to DSI should be addressed to:
DSI should be addressed to:
DSI DSI
Contract Administration Accounts Receivable
Xxxxx 000 Xxxxx 0000
0000 Xxx Xxxx Xxxxx 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000 (000) 000-0000
Facsimile: (000) 000-0000 (000) 000-0000
Date:________________________________
EXHIBIT E
SOFTWARE MAINTENANCE AND SUPPORT SERVICES
("Maintenance Services")
Licensor (or the designated 724 Distribution Company) will provide the following
"Maintenance Services" in connection with the maintenance and support of the
most recent version the software within the Licensed Technology and the most
recent prior Major Release:
(a) UPDATES: Licensor shall provide Updates and Upgrades to the
Licensed Technology whenever Licensor and/or its Affiliates
provides them to its other customers generally or, with respect to
a Customization, to a Licensee.
(b) TELEPHONE SUPPORT: Licensor or an Affiliate (the "Support
Services Provider") will maintain a "Service Desk" to provide
Licensee with a single point of contact for all questions and
problems regarding the Licensed Technology, and the repair of any
errors in the Licensed Technology.
(c) LICENSEE REQUESTS TO REPAIR ERRORS: Support Services Provider
will review requests to repair errors in the Licensed Technology
at no charge to Licensee. If it is determined that such request
is a request for an improvement, then the request will be treated
as a request for Consulting Services. If however such request is a
request to fix an error, then Support Services Provider shall
repair such error in accordance with the terms of this Schedule at
no additional charge to Licensee.
(d) SINGLE POINT OF CONTACT: At Licensee's request, Support Services
Provider will assign (or will cause an Affiliate to assign) to
Licensee a product expert, on a billable basis in accordance with
the terms hereof, to provide a single point of contact for
Licensee for the purposes of technical support issues relating to
the Licensed Technology.
Licensor shall offer and make available to Licensee each production version
of the Licensed Technology and any customizations, modifications or
enhancements as it is released generally. Licensor reserves the right not to
support any version of the Licensed Technology that is older than the most
recent prior production version of the Licensed Technology or any
customizations, modifications or enhancements made by any Person other than
Support Services Provider (or its authorized agents or subcontractors)
provided that Licensor or its Affiliates will support each version of the
Licensed Technology for at least [****] after it is delivered to Licensee.
Notwithstanding the foregoing, Licensor and/or its Affiliate will continue to
satisfy its maintenance obligations hereunder whether or not Licensee chooses
to adopt any particular Non-Embedded Third Party Materials.
SERVICE DESK
(a) LOCATION: Support Services Provider will establish and maintain a
Service Desk at its offices (or as determined by Licensor from
time to time).
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 2 -
(b) BASIC SERVICES: Support Services Provider will provide the
following basic Service Desk services:
(i) call and electronic mail answering and dispatch;
(ii) problem management including trouble ticketing and
call logging;
(iii) problem resolution; and
(iv) maintenance of website providing electronic support
via the Internet.
(c) SERVICE HOURS: The 724 Service Desk will be available to receive
calls from Licensee during normal business hours in any
jurisdiction receiving Licensed Technology, during Business Days
("Normal Service Hours"). Beeper support by a single 724
Solutions staff member will be available from 5:00 p.m. to 8:00
p.m. (Toronto Time) ("Extended Service Hours"), provided however
that response times shall be double that of response times during
Normal Service Hours. Normal Service Hours and Extended Service
Hours are referred to as "Service Hours".
(d) ON-SITE SUPPORT: Support Services Provider will provide on-site
support services for Licensee:
(i) for any Level 1 Priority failure (as defined below) in
the event that Support Services Provider cannot correct a
failure of the Licensed Technology by telephone or
electronically; and
(ii) if Licensee otherwise requests on-site support, Support
Services Provider, shall provide the support.
provided, however, that Licensee shall:
(iii) reimburse Support Services Provider for reasonable travel
expenses incurred by Support Services Provider and
approved by Licensee in advance on an actual cost basis,
including transportation, living and communications
costs, which fees and costs shall be paid by Licensee
within 45 days of receipt of an invoice accompanied by
supporting documentation including receipts from Support
Services Provider for such amounts in connection with
such on-site service and all applicable taxes, duties and
similar charges which are not recoverable by way of
credit, refund, rebate, offset or other reimbursement;
and
(iv) if it is determined that the problem was not caused
solely by failure of the Licensed Technology, reimburse
Support Services Provider for all labour costs, at
Support Services Provider's normal Consulting Services
rates.
- 3 -
SERVICE DESK PROCEDURES AND CORRECTION OF ERRORS
(a) RESPONSE TIME FOR SERVICE DESK: For all Licensee calls reported
during Service Hours, a Customer Service Representative of Support
Services Provider shall determine if the question can be answered
or problem resolved immediately over the telephone; however, if
this is not possible, the Customer Service Representative will:
(i) assign the priority code (listed below under "Priority
Codes") to the call that Licensee requests; and
(ii) attend to each service call in the order of the priority
codes and date of receipt of the call.
(b) EMERGENCY PROCEDURES AFTER SERVICE HOURS: In the case of an
emergency after Service Hours, Licensee shall first attempt to
reach the Customer Service Representative of Support Services
Provider assigned to Licensee and failing this, Licensee may
contact the persons listed on Support Services Provider's then-
current emergency contact list. Support Services Provider will
deliver the emergency contact list to Licensee's contact person
promptly after the date of this Agreement and after making any
change to the list, but in no case less frequently than
semi-annually.
PRIORITY CODES
The level of service and order of priority shall be determined by the priority
codes assigned by Licensee. If 724 receives a telephone support call for a
lower priority service request, service for such item will be scheduled after
all higher priority service calls have been addressed.
For the purposes of this Section entitled "Priority Codes":
(a) "Core Services" means any material function of that part of the
Licensed Technology which does not reside on a client device
(including PC, wireless telephone, set top box, etc.), and which,
if such function became Unavailable (as defined below), would
cause all, or substantially all of the Secondary Services (as
defined below), to be Unavailable;
(b) "Secondary Services" means any material function of the Licensed
Technology that provides a Customer of Licensee with access to a
group of host services (including services like news, quotes,
weather, horoscopes, etc., and client device software such as PC,
wireless telephone, set top box, etc.) offered by Licensee to its
Customers.
(c) "Unavailable" means that all, or substantially all of, the
material functionality of either a Core Service or a Secondary
Service, as the case may be, is unavailable to Licensee and/or
Customers, or is so severely hampered that regular processing
cannot take place.
- 4 -
The priority codes that may be assigned to a call are:
(i) LEVEL 1: An error, defect or problem that has caused either (i)
one or more Core Services to be Unavailable, (ii) two or more
Secondary Services to be Unavailable; or a security issue that
materially affects the integrity of any Core Services or Secondary
Services, or (iii) a material number of Customers are unable to
access information over a Licensed Channel.
(ii) LEVEL 2: An error, defect or problem has only caused a Secondary
Service to be Unavailable; or a security issue that does not
qualify as a Level 1 priority.
(iii) LEVEL 3: An error, defect or problem that does not qualify as
either a Level 1 or Level 2 priority.
PERFORMANCE LEVELS
Licensor agrees to respond to each service call as follows:
(i) LEVEL 1: Support Services Provider will assign an Incident
Manager and respond to Licensee within [****], and use its
commercially reasonable efforts, working diligently, to repair
the error, defect or problem within [****] from receipt of the
service call. If such error, defect or problem is not resolved
within [****] of receipt or is not likely to be resolved within
[****] of receipt, Support Services Provider's qualified staff
will work with Licensee personnel continuously, either at
Support Services Provider's location, or, at Licensee's
request, at any Licensee location. Reasonable travel,
accommodation and living expenses (having regard to the urgency
and short time frames) will be the responsibility of Licensee
if travel is requested by Licensee.
(ii) LEVEL 2: Support Services Provider will assign an Incident
Manager and respond to Licensee within [****], and use its
commercially reasonable efforts, working diligently during
Service Hours, to repair the error, defect or problem. At
Licensee's request, and subject to availability of Support
Services Provider's resources, Support Services Provider will
dispatch one or more resources to the location designated by
Licensee in order to resolve the matter. Reasonable travel,
accommodation and living expenses (having regard to the urgency
and short time frames) will be the responsibility of Licensee.
(iii) LEVEL 3: Support Services Provider will respond within [****]
and to the extent technically possible, repair same within
[****] days or, at the option of Support Services Provider, with
the next major release of the Licensed Technology, provided
that same does not turn into a Level 1 or Level 2 error.
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
- 5 -
ESCALATION PROCEDURE
(a) SETTING PRIORITY CODES:
(i) As provided in paragraph (a)(i) of the Section entitled
"Service Desk Procedures and Correction of Errors",
[****] and Support Services Provider shall handle the
call on the basis of that priority code.
(ii) After the services are provided, [****] Support
Services Provider's Vice-President in charge of
Maintenance and Support Services may so inform
Licensee's contact person in writing, explaining, by
reference to the definition in the Section entitled
"Priority Code", why the facts of the call did not
correspond to the priority code Licensee assigned.
Support Services Provider may then invoice Licensee at
the time and materials rates (as set out in Schedule B
to the Licensed Affiliate Agreement) for Services
rendered in connection with such call.
Support Services Provider will responded promptly to all such requests
for escalations.
EXCLUSIONS
Maintenance Services will only be included with Consulting Services as set out
in the Statement of Services and as otherwise specified in Section 3.10 to this
Agreement.
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
EXHIBIT F
LICENSED AFFILIATE AGREEMENT
THIS AGREEMENT is made the ________ day of ______________, 0000
X X X X X X X:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
("DESIGNATED LICENSOR")
- AND -
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
("CITIBANK AFFILIATE")
BACKGROUND:
1. 724 Solutions Corp. (the "Licensor") has entered into a Master Technology
License Agreement including Exhibits thereto (the "Master Agreement")
with Citicorp Strategic Technology Corporation, ("Citibank") dated
December 29, 1999 pursuant to which Licensor has agreed to license or to
direct one of its Affiliates offer to license the Licensed Technology and
provide or arrange for the provision of other services to Citibank or
Affiliates of Citibank that execute a Licensed Affiliate Agreement; and
2. Citibank Affiliate is an Affiliate of Citibank which wishes to license
the Licensed Technology.
IN CONSIDERATION of the promises, the mutual covenants contained herein and
other good and valuable consideration, (the receipt and sufficiency of which are
hereby acknowledged), the parties hereto agree as follows:
1. DEFINITIONS. In this Agreement, capitalized words not otherwise defined
herein shall be given the meaning ascribed to them in the Master Agreement.
2. STRUCTURE. This Licensed Affiliate Agreement (and the Schedules attached
hereto) is a separate agreement that exists between the Parties hereto, the
terms of which consist exclusively
- 2 -
of the terms and conditions of the Master Agreement specified therein as are
applicable to Licensees (other than those specifically excluded below, those
additional or amending terms set forth below and the Schedules, if any,
attached hereto). All references in the Master Agreement to Schedules
attached to a Licensed Affiliate Agreement, if any, shall be interpreted as
references to the Schedules attached to this Licensed Affiliate Agreement.
In the event there is any inconsistency between the terms of this Licensed
Affiliate Agreement and the terms of the Master Agreement, the terms of this
Licensed Affiliate Agreement shall prevail to the extent of any such
inconsistency.
3. LICENSED TECHNOLOGY
(a) LICENSED MODULES
(b) DELIVERY DATE FOR LICENSED TECHNOLOGY
(c) DESIGNATED SITE
4. TERM
5. LICENSE FEES
6. MAINTENANCE FEES
7. ADDRESS FOR SERVICE. The address for service of each of the parties is
as follows:
___________________________
___________________________
___________________________
Facsimile:
Attention:
TO WITNESS their agreement, the Parties have duly executed this Agreement on the
date first written above.
[DESIGNATED LICENSOR] [CITIBANK AFFILIATE]
By:__________________________ By:___________________________
Name: Name:
Title: Title
