Exhibit 10.30
Co-Marketing Agreement
concluded by and between
PROTON WORLD INTERNATIONAL S.A.
00 xxx xx Xxxxxxx, 0000 Xxxxxxxx, Xxxxxxx
of the one part,
-hereinafter referred to as "PWI" -
and
Smart Chip Technologies, Inc.
000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, XXX
- hereinafter referred to as "SCTN" -
of the other part.
Confidential Information
1. Recitals
PWI has developed and owns a Card and Application Life-Cycle
architecture (the "CALC Architecture") being a set of open platform
based tools to manage the life-cycle of the multi-applications smart
card based technology known under the name "Proton Prisma", including
personalising and dynamic downloading of applications, and the Data
File Management ("DFS") pertaining thereto, (hereafter referred to as
the "CALC Technology").
SCTN is a Software Technology Company with a patent protected loyalty
application for use in the smart card and wireless environment. The
software is designed to operate on smart cards, point-of-sale
terminals, and smart devices such as personal digital assistants. SCTN
also provides complete loyalty program management, transaction
processing, and accounting services through its LoyaltyCentral(tm)
software and back office operation.
2. Functional Scope of the Agreement
PWI and SCTN agree to cooperate on the marketing and sale of joint
solutions based on PWI's multi-application smart card based technology
know as "Proton Prisma" and SCTN's Loyalty Application as set out in
detail in this Agreement.
3. Subject of the Agreement
The cooperation between PWI and SCTN encompasses the aspects described
below:
3.1. Leads
If a third party desires to establish contact with one of the partners
("Lead"), the other party agrees to proceed as follows:
a) In cases where one of the partners is directly mentioned by name,
the other party agrees to refer the Lead immediately to the party
concerned, if possible accompanied by the following information:
see Annex 1, Lead Details (schedule of minimum information on
Leads).
b) In cases where neither of the partners is mentioned directly by
name, but where it can be reasonably deduced which partner is
intended, the Leads will be referred to the party concerned in the
same way as described in a) above.
c) Press Leads should be followed up by the party receiving them.
However, the other party must be informed immediately. The
procedure is in accordance with 3.10 below.
d) All other third party leads need not be referred to the other
party, especially in the case of associations, government agencies
or suppliers, unless the third party requests SCTN services
offered by PWI or vice versa.
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e) Beyond the information described in Annex 1, no customer
information should be exchanged with the other party in particular
no lists of customers will be shared. It is further agreed that no
information on a party's suppliers is to be exchanged with the
other party except when necessary for compliance with the terms of
this agreement or the Licensing agreement signed on October, XX
2001.
3.2. Promotional material
SCTN and PWI agree to supply each other with adequate quantities of
their promotional material, and to use the same to promote each others
products when appropriate for the sales situation. The joint
development of any combined promotional material must be agreed before
hand in writing on a case by case basis as a supplement to this
Agreement. The written agreement must include, in particular, a
provision on the allocation of the costs incurred. However, SCTN and
PWI agree to develop a sales kit and training sessions to support this
and other sales efforts.
3.3. Customer acquisition planning
PWI and SCTN intend to jointly develop a plan for the acquisition of
customers for SCTN's Loyalty applications based on Proton's
multi-application smart card technology. The customer acquisition plan
shall be in place no later than 90 days after the execution of the
contract. However, execution of the plan will commence according to the
schedule for the availability of product.
Each partner acquires a global, non-transferable, non-exclusive right
to use the finished plan or preliminary stages thereof solely in the
context of this agreement. Furthermore, neither party may pass the plan
or its preliminary stages to a competitor of the other party, or use it
in any way in connection with such a competitor. If the agreed
resources are not sufficient for completion of the plan, the parties
may agree, in writing, to make further resources available. If such an
agreement is not reached, the work on the customer acquisition plan
will be discontinued.
3.4. Sales calls
Joint calls on customers will be jointly prepared and the details of
the offer and its conditions agreed between the partners adequately in
advance of the call. Unless explicitly otherwise agreed in writing,
each partner itself bears the costs that it originates.
3.5. Joint promotional activities
It is understood by the parties that a mutually agreed to press release
describing the intent of the parties as laid out in this agreement will
be released within 5 business days after the execution of the
agreement.
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3.6. Joint business plan
PWI and SCTN will jointly develop a business plan for approaching the
multi-application smart card market segment with the Prisma based
Loyalty application described herein. The business plan shall be in
place 90 days after the execution of the agreement.
Each partner acquires a global, non-transferable, non-exclusive right
to use the finished plan or preliminary stages thereof solely in the
context of this agreement. However, neither partner may pass the plan
or its preliminary stages to a competitor of the other partner, or use
it in any way in connection with such a competitor. If the agreed
resources are not sufficient for completion of the business plan, the
partners may agree in writing to make further resources available. If
such an agreement is not reached, the work on the business plan will be
discontinued.
3.7. Development activities
3.8. Joint development activities are agreed in writing by means of a
separate development agreement on a case by case basis. Before the
execution of such a development agreement there is no obligation to
undertake development activities and no entitlement to remuneration or
payment of expenses. For the sake of clarity, the parties acknowledge
that they have signed a Licensing agreement that enables the
integration of SCTN's Loyalty solutions to the Proton Prisma
technology. This paragraph will have no effect on that agreement Mutual
support
Both parties undertake to use reasonable efforts to support each other
within the prudent limits of their commercial and operational
capabilities, except where otherwise provided under this Agreement.
Such support shall not include the disclosure of know-how or the
performance of any services for the respective other party that exceed
those specifically provided under this Agreement. Each party undertakes
to behave fairly and cooperatively towards the other party at all times
and to take fair and reasonable account of the other party's interests.
3.9. External communications
The parties agree to consult on any report or information on their
cooperative activities before its publication. An exception to this
rule is only admissible if, in the case of public relations contacts
that occur orally, e.g. interviews with the press, prior consultation
is not possible. In such a case, the party concerned may repeat
information on the cooperation that is already in the public domain.
Information that has not yet been published may not be disclosed.
3.10. Use of company name and logo
PWI consents to SCTN using the company name Proton World International
and the company logo in the form made available to it in Annex 2 for
the term of the Agreement as follows:
- the cooperation with PWI may be indicated on all promotional
materials, using the form of expression as stated in Annex 2
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- PWI company name and logo may be used on SCTN's Internet site
in the format shown in Annex 2
- Web site links
SCTN consents to PWI using SCTN's company name and logo as follows:
- Web site links
- SCTN's company name and logo may be used on PWI Internet site
in the format shown in Annex 2
- the cooperation with SCTN may be indicated on all promotional
materials, using the form of expression as stated in Annex 2
3.11. Alterations and additions
The parties are aware that in the course of their cooperation
alterations and additions to the subject of the Agreement will be
necessary in order to sustain the effectiveness and focus of the
cooperative activities. They are therefore fundamentally prepared to
discuss initiatives for alterations and additions at any time with the
other party. However, the parties are aware that the exercise of a
certain discipline in documenting the subject of the Agreement, among
other aspects, is necessary to ensure the long-term success of the
cooperation. They therefore explicitly agree that alterations and
additions to the subject of this Agreement shall not be legally binding
unless and until they have been confirmed in writing by both parties on
the same document. The text of such document shall refer to this
Partnering Agreement.
4. Non-disclosure
4.1. The parties hereto agree to treat all information in connection with
this Agreement and all other confidential information belonging to the
parties and/or affiliated organizations as confidential.
4.2. Unless explicitly otherwise agreed by the parties, "confidential
information" shall be taken to mean:
a) All and any information that one of the parties to this
Agreement has designated as confidential.
b) Lists of customers, lists of suppliers, detailed information
on customers, accounting data and information on business
plans and business activities in the fields of administration,
finance or marketing.
c) Technical specifications, drawings, descriptions, blueprints,
documents, tapes, samples etc.
4.3. The parties agree to treat such confidential information as secret and
not to use it, in whole or in part, for any purposes other than for the
fulfillment of this Agreement. The parties hereto agree not to disclose
confidential information to third parties, either by publication or in
any other form, unless both parties agree to such disclosure. Either
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party may disclose confidential information of the other party or of
the customer to its employees or affiliated companies if this is
necessary for fulfillment of this Agreement. However, this presupposes
that the employees or affiliated companies concerned have entered into
an obligation to maintain confidentiality in such a way as if they were
themselves parties to this Agreement.
4.4. The provisions of this Agreement and the resulting circumstances shall
also be treated as confidential.
4.5. This clause does not protect confidential information that
a) is or becomes publicly accessible without breach of this
Agreement,
b) one of the parties has received from third parties in a
legally permissible way without being bound by an obligation
to preserve confidentiality,
c) must be published, according to statutory or common law,
d) one of the parties can prove by means of written records that
it has developed independently,
e) has been released in writing for publication by the party to
which it belongs.
4.6. On demand, or on expiry or termination of this Agreement, each party
shall return to the other party all written documents or descriptive
materials, including drawings, blueprints, descriptions or other
papers, documents, tapes or any other medium that contains confidential
information belonging to the other party. Both parties undertake to
conclude agreements with those of their employees or other persons who
have access to confidential information belonging to the parties in
such a way that fulfillment of the provisions of this Agreement can be
ensured.
4.7. All and any original materials or documents that have been drawn up,
produced or prepared by either party as a consequence of this Agreement
are property of the party that has produced these materials or
documents. Neither party will copy, in whole or in part, any original
materials that have been developed under this Agreement by the other
party, unless this serves the purposes of this Agreement.
5. Proposals; Agreements with Third Parties
This Partnering Agreement does not constitute an adequate basis for
submitting joint or coordinated proposals or concluding joint or
coordinated agreements with customers, suppliers or other third
parties. In these cases the cooperative activity takes place solely on
the basis of separate, written agreements that must be concluded
adequately in advance of such activity.
6. Liability
6.1. Neither of the parties hereto shall be liable to the other for any
breach of obligations under this Agreement if such breach is due to
circumstances beyond its control, in particular to cases of force
majeure.
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6.2. Irrespective of the nature of the claim, each party shall only be
liable to the other for actual, provable damage or loss caused by this
party with harmful intent or by negligence. Each party's liability
towards the other party under this Agreement shall be limited to the
sum of USD 25,000. Neither party shall be liable to the other under any
circumstances for indirect or consequential damage or losses, including
loss of profit.
6.3. The above provisions comprehensively govern all legal consequences and
the entire liability of each party in connection with matters under
this Agreement, with the exception of claims based on mandatory law.
7. Termination
7.1. Either party may terminate this Agreement effective at the end of a
calendar year by giving the other party three months' prior written
notice.
7.2. The right of either party to terminate for cause remains intact. Cause
for termination may be given in the following instances:
- if one of the parties hereto has persistently failed to comply
with material obligations under this Agreement,
- if insolvency proceedings have been instituted against one of
the parties,
- if there is a material change in the ownership or management
structure of SCTN that results in a situation where SCTN is
owned or controlled by a competitor of PWI.
7.3. The provision in 4. above concerning non-disclosure shall survive
termination of this Agreement.
8. Other provisions
8.1. Unless otherwise explicitly provided in this Agreement or elsewhere,
each party itself bears the expenses that it incurs as a result of this
Partnering Agreement, e.g. costs of travel, working time, materials.
8.2. Each party acts as an independent organization and no agency,
partnership, joint venture or other joint marketing relationship is
established by this Agreement or its implementation. In particular no
joint property or joint assets and liabilities are created thereby.
8.3. If any term or provision of this Agreement is invalid, legally
ineffective or unenforceable, the validity, legal effectiveness and
enforceability of the remaining provisions shall not be affected
thereby. In such a case, the parties shall agree on a legally effective
provision that comes as close as possible to their original intentions.
The same applies analogously to any omission from the contractual
provisions.
8.4. This Agreement shall be construed in accordance with and governed by
Belgian law.
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8.5. Amendments to this Agreement shall not be effective unless agreed
explicitly in writing.
9. Annexes
Annex 1: Lead Details
Annex 2: Company Name and Logo
Signed in Brussels on _________________ Signed in California on
19th October 2001
By: By: /s/ Xxxxxxx X. Xxxxx
----------------------------------- --------------------
Xxxxxx Xxxxxxx Xxxxxxx X. Xxxxx
CEO Proton World International NV SA SVP Global Alliances
Signed in California on 19th October 2001
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx
President Proton World Americas Inc.
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Annex 1, Lead Details
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Annex 2 , Company Name and Logo
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