EXHIBIT 10.10
AGREEMENT
This Agreement is entered into this ___ day of August, 1997 between
Tangent Associates, Inc., a Florida corporation whose principal place of
business is 0000 X.X. 00 Xxxxxx, Xxxxx, Xxxxxxx ("Tangent") and Precis Smart
Card Systems whose principal place of business is ________________
_____________________________ ("Precis").
Tangent provides point of sale and inventory control systems for
food and beverage concessions. Tangent is party to an agreement (the "Kiel
Center Agreement") dated as of August ___, 1997 with ___________ ("Kiel")
which is attached hereto as Exhibit A, pursuant to which Tangent has agreed,
among other things, to upgrade the system manufactured by Tangent that is
currently installed at the Kiel Center in St. Louis, Missouri, and to supply
so-called "smart cards" to the Kiel Center for use in food and beverage
concessions. Precis designs, manufactures and sells equipment to read
information from and store information on smart cards. Tangent and Precis
desire to work together to design, manufacture and sell smart card systems
for installation at the Kiel Center (the "Kiel Center Project"), all on the
terms and conditions set forth below.
1. CERTAIN DEFINITIONS.
a. "ADVERTISING SPONSORSHIP SALES" means the revenue
generated pursuant to Section 6.3 of the Kiel Center Agreement.
b. "COLLECTOR SALES" means sales of Smart Cards by Tangent
pursuant to Section of 6.2 the Kiel Center Agreement.
c. "COLLECTOR" means the ultimate purchaser of a Smart Card
sold in a Collector Sale.
d. "HEREOF" "HEREIN" and "HEREUNDER" when used in this
Agreement shall refer to the Agreement as a whole, unless the context
otherwise requires.
e. "SMART CARD" shall mean the card containing microchip
technology permitting the storing, retrieval and restoring of information
(such as an encrypted dollar value) relating to cardholders or card use and
intended for use in the Smart Card Program.
f. "SMART CARD DESIGN" shall mean designs, drawings, and
depictions appearing on Smart Cards used in connection with the Smart Card
Program or otherwise in connection with the Agreement or the Kiel Center
Agreement, including any Third Party Intellectual Property incorporated
therein.
g. "SPECIALTY EQUIPMENT" means the Smart Card-related
equipment and software installed in connection with the Upgrade.
h. "INTELLECTUAL PROPERTY" means all trademarks, service
marks, trade dress, logos, trade names, and corporate names, together with
all translations, adaptations, derivations, and combinations thereof, all
copyrightable works and copyrights, and all mask works and all applications,
registrations, and renewals in connection therewith.
i. "THIRD PARTY INTELLECTUAL PROPERTY" means all
Intellectual Property owned by persons other than Tangent, Precis and Kiel.
j. "TANGENT INTELLECTUAL PROPERTY" means all Intellectual
Property owned by Tangent prior to the date hereof.
k. "PRECIS INTELLECTUAL PROPERTY" means all Intellectual
Property owned by Precis prior to the date hereof.
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l. "JOINT INTELLECTUAL PROPERTY" means all Intellectual
Property that may be developed jointly by the parties hereunder in connection
with the Kiel Center Project.
m. "UPGRADE" means the upgrade described in Section 2.1 of
the Kiel Center Agreement, as the Kiel Center Agreement may be amended from
time to time by Tangent and Kiel.
2. SUPPLY OF EQUIPMENT
a. Precis shall supply such Specialty Equipment as may be
needed to accomplish the Upgrade. In connection therewith, Precis shall,
among other things:
(1) Provide smart card readers (Verifone SC450) with
the appropriate programming to read and devalue cards in conjunction
with the Tangent Model 9310 POS unit;
(2) Provide 20,000 Smart Cards, programmed and
initialized with appropriate values to Kiel in discharge of Tangent's
obligations under Section 3.1 of the Kiel Center Agreement.
(3) Provide up to 50,000 Smart Cards for Collector
Sales.
(4) Provide Tangent with ten completely valued sets
of each card created with a particular Smart Card Design.
(5) Provide appropriate software for use with the
Specialty Equipment that will permit card security, database
functions, accounting functions, all as more particularly described
on Schedule 1 hereto and, in any event, sufficient for Tangent and
Kiel to provide reports and other functions as contemplated by the
Kiel Center Agreement;
(6) Provide test equipment and cards at the request
of Tangent for the purpose of assuring that the Upgraded System
functions as required; and
(7) Provide equipment necessary (in Tangent's
discretion) for sales demonstrations and trade shows and for other
sales and marketing activities.
b. Upon acceptance of delivery of the Specialty Equipment by Tangent
at the Kiel Center, title to an undivided one-half interest in such Specialty
Equipment shall pass to Tangent, free and clear of all liens and encumbrances
other than an undivided one-half interest therein retained by Precis. Precis
acknowledges and agrees that unencumbered title to all Specialty Equipment
shall pass to Kiel under certain circumstances, as provided in the Kiel
Center Agreement, and Precis agrees that it shall sell, transfer and convey
all of its right, title and interest in and to the Specialty Equipment if, in
Tangent's sole determination, passage of such title is appropriate as
provided in the Kiel Center Agreement.
3. Smart Card Design
Upon request of Tangent, Precis shall consult with Tangent
in the development of Smart Card Designs (both for use in the Smart Card
Program and with for use in marketing such cards to card Collectors),
assistance in the development of card issuing and sales strategies, and
training to Kiel management and supervisory personnel on the control and use
of the cards as a means for settling customer transactions.
4. Cost Sharing
a. Against appropriate documentation therefor, within 45
days of the end of each calendar quarter beginning with the quarter ending
December 31, 1997, Tangent shall reimburse Precis for 50% of the costs
incurred by Precis in connection with the Kiel Center Project. These costs
include, without limitation, costs of Specialty Equipment, costs of
development of software, costs of Smart Cards provided pursuant to Section
_________ (hereof, costs of installation
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of Specialty Equipment at the Kiel Center, shipping costs, and labor costs
(but not to include overhead, management labor costs, or capital
expenditures).
b. Against appropriate documentation therefor, within 45
days of the end of each calendar quarter beginning with the quarter ending
December 31, 1997, Precis shall reimburse Tangent for 50% of the costs
incurred by Tangent in connection with the Kiel Center Project. These costs
include, without limitation, costs of design, costs of installation,
consulting costs, costs to train Kiel Center personnel, costs of sales and
marketing of Collector Cards, and costs of creating Smart Card Designs (but
not to include overhead, management labor costs, or capital expenditures).
5. Revenue Sharing
Within 45 days of the end of each calendar quarter
beginning with the quarter ending December 31, 1997, and until the expiration
or earlier termination of this Agreement, Tangent shall pay to Precis a share
of revenues received by Tangent as a result of Advertising Sponsorship Sales
and Collector Sales, all in accordance with the schedule set forth on
SCHEDULE 2 hereof, less amounts remitted to the Kiel Center in accordance
with the Kiel Center Agreement.
6. Smart Card Designs/Intellectual Property Matters.
a. Any Smart Card Designs together with all United States
and foreign copyrights thereto, that are created by Tangent and do not
constitute Third Party Intellectual Property, shall be the sole and exclusive
property of Tangent, its successors and assigns. In this regard:
(1) Tangent, its successors and assigns, shall have the
sole and exclusive right to secure, register and/or otherwise perfect
all claim to copyright(s) on the Smart Card Designs in the United
States and throughout the world in its own name or in the name of its
nominee.
(2) Tangent, its successors and assigns, in their sole
discretion, shall have the absolute and exclusive right to use and/or
license, transfer or otherwise dispose of the Smart Card Designs, any
and all worldwide copyrights therein and/or copies of the Smart Card
Designs and derivative works based thereon throughout the world in any
manner whatsoever without notifying, consulting or accounting to Kiel.
(3) Precis shall execute such documents and, at the expense
of Tangent, its successors and assigns, shall take such actions as may
be reasonably requested by any of them to secure, perfect, enforce
and/or otherwise protect Tangent's right, title and interest in and to
the Smart Card Designs, including but not limited to all worldwide
copyrights in such designs.
(4) Precis does hereby expressly and knowingly relinquish
and waive any and all right(s) to claim authorship of Smart Card,
any portion thereof or any derivative work(s) based thereon.
b. Ownership of Intellectual Property.
(1) All Precis Intellectual Property and Intellectual
Property developed solely by Precis during the term of the Kiel Center
Agreement shall be owned by Precis.
(2) All Tangent Intellectual Property and Intellectual
Property developed by Tangent during the term of the Kiel Center
Agreement shall be owned by Tangent.
(3) All Joint Intellectual Property shall be [jointly owned
by the parties as tenants in common.]
c. Notwithstanding the foregoing, Precis produce for itself
ten completely valued sets of each card created with a particular Smart Card
Design. In no event shall Precis sell or distribute any Smart Cards without
Tangent's prior written consent.
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d. Precis warrants to Tangent that Precis owns or otherwise
holds all rights necessary to make, use, sell, offer for sale, advertise and
distribute products currently made, used, sold offered for sale, advertised
and distributed by Precis, free and clear from all claims, liens and
encumbrances of third parties, except for the obligations under those
agreements and licenses listed on Schedule 3 hereto.
e. Tangent warrants to Precis that Tangent owns or
otherwise holds all rights necessary to make, use, sell, offer for sale,
advertise and distribute products currently made, used, sold offered for
sale, advertised and distributed by Tangent free and clear from all claims,
liens and encumbrances of third parties, except for the obligations under
those agreements and licenses listed on Schedule 4 hereto.
7. Warranty. Each party hereto warrants that under normal use and
service its products are free from defects in design and workmanship. Each
party warrants that the products of each delivered by each for use in
connection with the Kiel Center Project will be complete and in conformity
with the products regularly supplied by each to purchasers and lessees of its
products.
8. Term and Termination. This Agreement shall be for a period of six
years from the date hereof unless sooner terminated in accordance with the
following provisions:
a. Tangent may, at its option, terminate this Agreement at
any time if the Kiel Center Agreement is terminated for any reason.
b. Tangent may terminate this Agreement:
(1) On or before _________, 19__, if Tangent is unable
to obtain licenses for Third Party Intellectual Property as provided in
Section 8.2 of the Kiel Center Agreement; or
(2) On or before __________, 1997 for any reason or for
no reason, in Tangent's sole discretion.
c. Either party may terminate this Agreement if the other
party becomes unable to pay its respective debts, becomes insolvent, and/or
if a receiver is appointed or applied for against such party, or if a
petition in bankruptcy, insolvency or corporate reorganization is filed by or
against such party and such petition is not vacated within sixty days of such
filing;
d. Either party may terminate this Agreement upon written
notice to the other that such party is unable to perform as provided
hereunder due to labor disputes, fire, casualties and accidents, acts of the
elements, acts of a public enemy, sovereign acts or regulations and any other
causes beyond the control of such party, its agents, employees or officers.
e. The provisions of Sections __ and __ shall survive the
expiration or termination of this Agreement.
9. Miscellaneous Provisions
a. ASSIGNMENT. This Agreement shall be binding upon the
parties and their respective successors and assigns. The rights and
obligations of the either may not be assigned without the prior written
consent of the other.
b. INDEMNIFICATION.
(1) Precis shall defend, indemnify and hold Tangent
harmless from and against any material liabilities, damages or losses
(other than loss of potential sales and profits), and from any
claims, suits, proceedings, demands, recoveries or expenses, in
connection with the Smart Card Program arising out of, based on, or
caused by (a) activities conducted by Precis or the failure by Precis
to conduct activities, in connection with the Kiel Center Project or
(b) the material breach of performance by Precis of any of its
obligations hereunder; provided, however, that Tangent shall make no
claims under this provision until and unless the aggregate amount
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of all such claims exceeds the amount of $____________.
(2) Tangent shall defend, indemnify and hold Precis
harmless from and against any material liabilities, damages or losses
(other than loss of potential sales and profits), and from any
claims, suits, proceedings, demands, recoveries or expenses, in
connection with the Kiel Center Project arising out of, based on, or
caused by the material breach of performance by Tangent of any of its
obligations hereunder; PROVIDED, however, that Precis shall make no
claims under this provision until and unless the aggregate amount of
all such claims exceeds the amount of $____________.
c. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITIES.
Except for its express representations, warranties and covenants contained in
this Agreement, Tangent DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT
LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, TANGENT SHALL NOT
BE LIABLE FOR LOST PROFITS, LOST BUSINESS OR ANY INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES CLAIMED BY PRECIS IN CONNECTION WITH THIS
AGREEMENT OR THE SMART CARD PROGRAM.
d. RELATIONSHIP OF THE PARTIES. The Parties hereto agree
that they are independent contractors under this Agreement, and no agency,
employment, partnership, joint venture or franchise relationship is created
or shall be deemed to be created hereunder. Neither party shall have, and
neither shall represent to have, any power, right or authority to bind the
other or to assume or create any obligation or responsibility, express or
implied, on behalf of the other party or in the other party's name, except as
herein expressly permitted.
e. CONFIDENTIALITY. Tangent and Precis acknowledge that by
reason of their relationship to each other hereunder, each will have access
to certain information and materials concerning the other's business, plans,
customers and products (including but not limited to information and
materials contained in technical data provided from time to time) which is
confidential and of substantial value to the owner, which value would be
impaired if such information were disclosed to third parties. Except for
information that (a) is, at the time of disclosure, a part of the public
domain or thereafter becomes a part of the public domain through no violation
of this Agreement; (b) was available to the receiving party on a
non-confidential basis prior to its disclosure to the other party, (c)
becomes available to the receiving party on a non-confidential basis from a
source other than the disclosing party, provided that such source is not
bound by a confidentiality agreement with the disclosing party, or (d) is
required to be disclosed in a filing required by law or by statutory
regulation, without the prior written consent of the other party, Tangent and
Precis agree that they, and their directors, officers and professional staff,
shall not use in any way, for their own account or the account of any third
party, nor disclose to any third party, any such confidential information
which is revealed to either by the other party. Each will take every
reasonable precaution to protect the confidentiality of such information. On
termination of this Agreement, there shall be no use or disclosure by either
party of any confidential information previously disclosed to such party by
the other for one year from the date of termination of this Agreement.
f. ARBITRATION.
(1) Except for any action seeking equitable relief by
one of the parties hereto for a breach by the other, any dispute,
controversy or claim arising under, out of, in connection with, or
in relation to this Agreement, or the negotiation, execution or breach
thereof, shall be determined and settled by final and binding
arbitration in Broward County, Florida, in accordance with the then
current Commercial Arbitration Rules of the American Arbitration
Association (the "Rules"), and judgment upon the award rendered by the
arbitrator may be entered in the state courts of Broward County,
Florida. The arbitration shall be conducted by a single arbitrator
selected by the parties. If the parties have not selected an
arbitrator within thirty days of written demand for arbitration by
either party, the arbitrator shall be selected by the American
Arbitration Association pursuant to the Rules. The expenses of
arbitration shall initially be shared equally by the parties, but the
share of the prevailing party shall be reimbursed by the party against
whom the award is rendered.
(2) In the event that (a) the arbitrator in an
arbitration proceeding commenced in accordance with this Section _
determines that the matter is not susceptible of arbitration or that
the relief sought is not obtainable in arbitration, (b) the laws of the
State of Florida permit a party to seek certain rights or
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remedies prior to the commencement of an arbitration proceeding, or (c)
any action seeking equitable relief is commenced by one of the parties
hereto for breach, the parties hereto agree and consent to the
exclusive jurisdiction and venue of the state courts of Broward County,
Florida or in the United States District Court for the Southern
District of Florida, for such purpose or purposes.
(3) Should any party to this Agreement institute an
arbitration proceeding as provided in this Section ____ or any other
legal action or proceeding permitted by the immediately preceding
paragraph of this Section _____, to enforce the terms, conditions and
provisions of this Agreement, or to recover damages or obtain any other
relief, including equitable relief, in connection with any matters
arising out of or in connection with this Agreement, the prevailing
party shall be entitled to all arbitration fees, arbitration and/or
court costs and reasonable attorneys' and paralegal fees and expenses,
including in any pre-arbitration or pre-trial, appellate, post- award
or post-judgment and related bankruptcy proceedings.
g. GOVERNING LAW. This Agreement is made in the State of
Florida, United States of America and shall be governed by and construed by
the internal laws of the State of Florida without regard to conflicts of laws
principles.
h. NOTICES. Any notices, consents, approvals or other
communications required or permitted under this Agreement shall be
hand-delivered or sent by U.S. Certified or Registered Mail, postage prepaid
and return receipt requested, or by express or overnight courier service, or
by facsimile (confirmed by telephone), shall be in writing and shall be
deemed given on the date of hand-delivery or confirmed receipt, or if mailed
on the third business day after dispatch, and shall be sent to the addresses
and to the attention of the persons set forth below, or to such other address
or person as a party may specify by notice:
IF TO TANGENT: COPY TO:
Tangent Associates, Inc. Holland & Knight, LLP
Attn: Xxxxx Xxxxx Attn: Xxxxxx Xxxxxxx
0000 XX 00 Xxxxxx One East Broward Boulevard
Davie, FL 33314 Fort Lauderdale, FL
Fax: 000-000-0000 Fax: 000-000-0000
IF TO PRECIS: COPY TO:
i. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of, and supersedes any prior agreements or understandings between,
the parties hereto regarding the subject matter of this Agreement, and no
amendment, alteration or waiver of this Agreement shall be valid or binding
unless made in writing and signed by both parties.
j. WAIVER. Either party's failure to insist upon strict
performance by the other of any terms or conditions herein shall not be
construed as a permanent waiver of any of the terms or conditions contained
herein.
k. SEVERABILITY. Any provision in this Agreement found to
be void, voidable or unenforceable shall not affect the validity or
enforceability of any other provision in this Agreement. In the event that
any provision of this Agreement shall be declared void, voidable or
unenforceable by a court of competent jurisdiction, said provision shall be
deemed to be amended to provide the party seeking to enforce this Agreement
the greatest protection available under law.
l. WAIVERS/RIGHTS CUMULATIVE. No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
m. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties below have executed this Agreement
as of the date first above written.
Tangent Associates, Inc.
By:___________________________________
Xxxxx Xxxxx, President
Precis Smart Card Systems
By:___________________________________
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