EXHIBIT 10.12
CRYPTO IBUTTON/TM/ SERVICE PROVIDER AGREEMENT
A membership program
This Crypto iButton Service Provider Agreement is between Dallas Semiconductor
Corporation ("DS") and the Crypto iButton Issuer (the "CiBi") whose name and
principal business address appear on the Crypto iButton Service Provider
Membership Application, incorporated by reference, identified in the Country
Annex, as those terms are defined below. The terms and conditions of this
Agreement shall apply to all business entities authorized as Crypto iButton
Issuers.
1. DEFINITIONS:
The following definitions shall apply to this Agreement, the Country Annex, the
Site Annex, the CiBi Program Guide:
A. "CRYPTO iBUTTON" shall mean a physically secure computer and it's operating
system as listed in the CiBi Program Guide.
B. "CiBi PRODUCT" shall mean the services and accompanying software and/or
hardware which the CiBi provides as an extension to the capabilities of the
Crypto iButton. The CiBi Product is identified on the Membership
Application.
C. "CRYPTO iBUTTON ISSUER" shall mean the business entity which has been
authorized to issue Crypto iButtons under this Agreement and which provide
the Services (defined below).
D. "SERVICES" shall mean the services as specified on the Membership
Application.
E. "SITES" shall mean (1) separate legal entities controlled by the CiBi or
together with the CiBi are under the common control of a third party, or
(2) the additional divisions or offices of the CiBi which are not located
at the CiBi's principal place of business. Unless otherwise provided, the
term 'CiBi' in this Agreement shall be deemed to include any Sites.
F. "EFFECTIVE DATE" shall mean the date when both parties have signed this
Agreement.
G. "CiBi PROGRAM GUIDE" shall contain the specific CiBi bylaws and privileges
of the Crypto iButton Service Provider Program. The CiBi Program Guide may,
from time to time, be subject to change at DS' sole discretion.
H. "BRANDING POLICY" shall mean the guidelines governing the use and placement
of DS and program logos. The Branding Policy shall be provided to a CiBi.
I. "AGREEMENT" shall mean this agreement between DS and the CiBi with respect
to all terms, conditions, bylaws, and privileges appearing herein, the Site
Annex (if applicable), the Country Annex, the CiBi Program Guide. The Site
Annex, the Country Annex, Branding Policy, and the CiBi Program Guide are
attached hereto and incorporated herein by reference.
J. "TERM" shall mean the period from the Effective Date to and through
December 31, 1998, and any subsequent one-year renewal terms as described
in Section 3 below.
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K. "TERRITORY" shall mean the territory specifically set forth in the Country
Annex.
L. "CiBS" shall mean the individuals who have been certified by DS, as a
Crypto iButton Specialist.
M. "ELECTRONIC ACCEPTANCE" shall mean the electronic expression of agreement
with and acceptance of any amendments to the Agreement which may occur with
each renewal term. Such electronic acceptance shall be signified by
clicking on the appropriate "AGREE" button (or such other similarly
designated button during the electronic agreement process).
N. "CRYPTO IBUTTON LICENSE AGREEMENT" shall mean the license agreement which
gives the right to use a Crypto iButton. The Program Guide contains the use
licenses: Crypto iButton Holder License, Crypto iButton Secured Computer
License and Crypto iButton Evaluation License.
O. "ISSUANCE" shall mean the confirmation that the registered individual or
entity is in possession of the Crypto iButton, has agreed to the terms of
the license and remitted payment to DS for the corresponding Issuing and
Maintenance/Support Fees under the Program Guide.
P. "ISSUER" shall mean a service provider which holds Crypto iButton under
quarantine until Issuance.
Q. "CiBi CUSTOMER" means an individual or entity that has licensed Crypto
iButton to use the Services.
R. "QUARANTINE" any Crypto iButton which the CiBi has possession prior to
Issuance.
S. "iBUTTON BOOK OF STANDARDS" shall mean the standards, characteristics and
operations, including the 1-Wire(R) interface, described in the Book of
iButton Standards.
T. "DS PRODUCT" shall mean a DS Memory iButton, Blue Dot Receptor or DS
iButton accessory.
U. "DS MATERIALS" shall mean DS Product, all related documentation, Crypto
iButton, published Policies, Guides, material supplied to CiBi.
V. "ALLOWANCE FOR APPLYING ISSUANCE FEE TO THE LICENSE" shall mean a price
reduction taken by CiBi in consideration for substantiating the agreement
to the DS Crypto iButton Licenses.
2. APPOINTMENT, OPENNESS, CONFORMITY AND PRICING.
2.1 Appointment. DS hereby appoints a service provider as a non-exclusive
Crypto iButton Issuer (CiBi) in the Territory, and the CiBi accepts such
appointment. Program membership is contingent on CiBi's continued
compliance with the bylaws of Crypto iButton Service Provider program.
2.2 Openness Standard. CiBi agrees that the Crypto iButton and the embedded
Script Interpreter or Java Virtual Machine are designed to support and
maintain multiple applications from one or more service providers. If
authorized by the CiBi Customer, other service providers may add other
applications to the Crypto iButton issued by CiBi.
2.3 Vote on Forum. CiBi will have a set number of votes on the Forum. The set
number of votes will be determined based on the number of activated Crypto
iButtons issued by each CiBi. DS shall have sole discretion on whether to
implement any actions or modifications to the bylaws.
2.4 Conformity to iButton Standards. CiBi agrees that CiBi's Products shall
comply with the iButton Book of Standards and shall include pass
conformance tests according to the Program Guide.
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2.5 Price and Fee Reductions for Issuers Only.
A. If CiBi's Products meets the Openness Standard under Section 2.2 and
the Conformity requirements under Section 2.4 and is a current member
of the service provider program, then DS will invoice 20% below the
Worldwide Price List, contained in the Program Guide, for Crypto
iButton Fees and DS Products associated with the Services.
B. If CiBi leaves from the Crypto iButton Service Provider Program for
any reason, the former CiBi may acquire the right to use a Crypto
iButton under the Crypto iButton Holder License, Crypto iButton
Secured Computer or Crypto iButton Evaluation License and remit fees
according to the Worldwide Price List without a price reduction. The
license can be transferred to a customer of a former CiBi under the
provisions allowed by the license.
C. DS may revise the Worldwide Price List and the price and fee
reduction. Nothing in this Agreement obligates DS to license or to
continue to license Crypto iButtons to CiBi.
D. CiBi agrees that its purchase of the DS Products shall be under the
terms of Dallas Semiconductor's Standard Terms and Conditions of
Quotation and Sale, which DS may revise from time to time.
3. TERM AND TERMINATION
A. Term: This Agreement shall take effect on the Effective Date and, unless
earlier terminated as provided herein, shall continue until 11:59 PM CT
December 31, 1998. This Agreement shall renew for additional terms of one
year each, provided that 1) the CiBi continues to meet any and all CiBi
obligations and requirements, including but not limited to, timely payment
of any applicable program fees hereto, and 2) the CiBi accepts and agrees
to any and all changes, if any, in the terms and conditions of this
Agreement in the manner identified in Section 17(J) below. Any renewal term
is conditioned on DS' approval. Upon expiration or earlier termination of
this Agreement, all rights and benefits granted by this Agreement shall
revert to DS and the CiBi shall immediately cease issuing Crypto iButtons
(see Section 2.5(B) for continuation of Services) (1) any Crypto iButtons
in quarantine must be returned to DS as defined in the Program Guide. (2)
if applicable, any licenses granted under the DS Internal Use Product
Program, (iv) the iButton/TM/, Crypto iButton/TM/, 1-Wire(R) and the
underlined i in a circle logo, and shall cease to represent itself as a
Crypto iButton Issuer immediately.
B. Termination: Either party shall have the right to terminate this Agreement
at any time, without cause and without the intervention of the courts, on
the delivery of thirty (30) calendar days' prior written notice. Neither
party shall be responsible to the other for any costs or damages resulting
from the termination of this Agreement (see Section 2.5(B) for continuation
of Services).
C. Termination of Sites: Upon the expiration or earlier termination of this
Agreement, all Sites authorized herein shall also be terminated.
4. CiBi SITES
Upon CiBi's request, DS may approve the Sites indicated on the Site Annex as
additional Crypto iButton Service Providers, provided that such Sites are also
located in the Territory and each individually meets the CiBi bylaws, provided
that the CiBi shall be responsible for paying the additional fees arising from
the addition of each Site. If the Site is a separate legal entity, CiBi herein
unconditionally and irrevocably guarantees the payment and performance of that
Site under the terms and conditions of this Agreement.
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5. PROGRAM PAYMENT
During the initial Term and any renewal Terms, the program fee for the
appointment as a Program Member under this Agreement shall consist of per annum
payments as follows:
A. The Crypto iButton Program Membership fee which is the amount determined by
the program fee schedule set forth in Table 1; and
B. The Site fee, which will vary depending on the number of sites, is the
amount determined by the program fee schedule set forth in Table 1.
With respect to any renewing CiBi, all program fees due under this Agreement
shall be received by DS by the date indicated in the CiBi Program Guide for the
applicable renewal Term. Any program fee payments shall be submitted to DS
without any deduction whether by set-off, counterclaim or otherwise.
6. CiBi RESPONSIBILITIES
A. Trademarks/Logos/Registered Marks: Nothing in this Agreement shall be
construed as granting the CiBi with a license to use DS' trademarks, trade
names, or logos other than in the following manner: the CiBi is a "Crypto
iButton Issuer". The specific guidelines concerning the size, placement and
use of the Crypto iButton Issuer name and logo are set forth in the Program
Guide. The CiBi shall use the appropriate trademark symbol (either "TM"
[Standard trademark] or "(R)" [Registered trademark] in a superscript
following the Product name) whenever a DS Product name is mentioned in any
advertisement, brochure, or material circulated or published in any form
whatsoever by the CiBi. The appropriate trademark symbol must be used in
conjunction with references to each CiBi Product in any of the CiBi's
circulations or publications. DS reserves the right to (1) review and
approve all DS trademark, service names, trade names and logos CiBi uses,
and (2) to amend any DS trademarks, trade names, services marks or logos
and agrees to notify the CiBi of any such amendments that are relevant to
the CiBi's business. CiBi or DS shall not, at any time, use or register any
name or Internet domain name, trademark, service xxxx, logo or symbol which
may be confusingly similar to any, trade name, trade or service xxxx, logo,
symbol, product name or Internet domain name.
B. Reporting: Upon DS' request, the CiBi shall provide sales and service
reports, using such forms as DS shall from time to time provide, and
deliver such reports to DS at the address indicated on the reporting form.
The CiBi warrants that such reports shall be true and correct to the best
of its knowledge and belief.
C. Program Membership Application and Profile: CiBi represents and warrants
that all the information on the Application form, is true and correct to
the best of its knowledge and belief, and warrants that the information
will continue to be so during the term of this Agreement unless otherwise
notified in writing by CiBi to DS. Should there be any changes in such
information during the course of this Agreement, CiBi agrees to promptly
inform DS in writing giving details of such changes.
D. Crypto iButton Specialists: The CiBi understands and agrees that it, at all
times, shall employ the number and kind of CiBSs as set forth in the CiBi
Program Guide.
E. Infringement: CiBi shall without additional costs use its reasonable and/or
best efforts to prevent the infringement of the Crypto iButton and DS
Product's Intellectual Property rights and shall use its reasonable and/or
best efforts to protect against infringement and to protect DS' right,
title and interest in and to the Crypto iButton and DS Products. CiBi shall
promptly notify DS of any infringement in the Territory of any copyright,
patent or of any trademark of DS.
F. Reverse Engineering: CiBi may not reverse engineer, decompile, disassemble,
attempt to open or tamper with the Crypto iButton or Development Tools, nor
may it authorize any CiBi Customer to do so. CiBi shall not
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remove or modify any Intellectual Property Rights notices or trademarks,
including patent or copyright notices or proprietary legends, contained on
or included in the Development Tools. Any documentation of the Services
created by CiBi which refers to the Crypto iButton must include all
applicable Intellectual Property Rights notices, including the following:
The Crypto iButton is a licensed product of Dallas Semiconductor
Corporation.
iButton/TM/, Crypto iButton/TM/, 1-Wire(R) and the underlined i in a
circle logo are trademarks of Dallas Semiconductor Corporation in the
United States and/or other countries.
G. Ownership Rights of Dallas Semiconductor. Dallas Semiconductor owns all
Intellectual Property Rights in and to the implementation of the Crypton
iButton with Java VM or Dallas O/S, Development Tools, Software ICs,
Operating System and Dallas Primary Group (collectively, referred to as "DS
Properties"). The DS Properties are protected under U.S. and international
copyright laws and by various U.S. and international patents and by other
pending patent applications. CiBi agrees that DS owns the exclusive rights
in and to such copyrights and the inventions as claimed in the issued U.S.
or foreign patents and agrees not to infringe DS' copyrights, trademarks or
patent rights in any way. CiBi agrees not to manufacture, use or design any
product that incorporates or imitates the DS Properties or the inventions
as claimed in the U.S. or foreign patents, except as authorized under this
CiBi Agreement. Each party shall reasonably assist the other party in the
protection of the other party's Intellectual Property Rights at the expense
of the requesting party.
H. Support for CiBi Products. CiBi agrees to provide to CiBi Customers,
installation and technical support services for the CiBi Products in
accordance with industry standards. CiBi shall inform DS, and no later than
it informs any third party, of any bugs, errors, breach of security, or
other technical problems with the Crypto iButton. DS may use such feedback
information without restriction.
I. Personalization: The CiBi may install applets, scripts, certificates and/or
data to the Crypto iButton during the quarantine. Upon completion of the
installation and quality assurance testing, CiBi shall place the Crypto
iButton in a properly sealed and labeled packet for Issuance as specified
in the Program Guide. The CiBi may not remove DS installed applets,
scripts, certificates and/or data.
7. DS RESPONSIBILITIES
A. DS License Grants for CiBi Internal and Marketing Use:
For CiBi internal and marketing uses only, DS hereby grants to the CiBi,
including each Site, a non-exclusive, non-transferable, royalty-free,
terminable license to use under the following conditions:
(1) The number of authorized DS Products as set forth in the CiBi Program
Guide. In all cases, installation and use of the authorized Crypto iButton
is to additional terms and conditions of a Crypto iButton License
Agreement, including but not limited to, any limitation and warranties, for
the Product, Crypto iButton, except that the authorized Crypto iButtons
shall not be transferred or assigned to any third party. DS reserves the
right to change the authorized number of DS Products to be licensed and as
may be provided through the Dallas Semiconductor Internal Use Product
Program, from time to time and in its sole discretion; and
(2) This grant of authorization for the use of the Crypto iButtons amends
the Crypto iButton License Agreements; however, the provisions of such
Crypto iButton License Agreements where unamended remain in full force and
effect.
B. Training Use Licenses: The CiBi, at its sole cost and expense, may offer
training to customers on the CiBi Product. DS hereby grants the CiBi
permission to issue the number of authorized CiBi Products set forth in the
CiBi Program Guide for the sole purpose of providing training on the CiBi
Product only. Training use of
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the CiBi Product is subject to the following conditions: (1) the CiBi shall
re-posses all CiBi Product used outside of the CiBi location upon
completion of training; (2) the CiBi may only issue the Crypto iButton for
which the CiBi conducts training classes; (3) the CiBi agrees to be bound
by the terms of the Crypto iButton License Agreement for each CiBi Product
(4) the CiBi shall strictly control use of any authorized CiBi Product in
accordance with a Crypto iButton License Agreement.
C. Marketing Support. Dallas Semiconductor shall provide the following
marketing support to CiBi.
(1) Developer's Conferences. Dallas Semiconductor shall invite CiBi
to any iButton developer forum for displaying various iButton
products that DS may host. CiBi agrees to attend at least one
iButton developer forum per year.
(2) Web-Site. Dallas Semiconductor shall include CiBi in part of its
web site at xxxx://xxx.xXxxxxx.xxx with a hyperlink to CiBi's web
site, if requested.
D. Advertising and Promotional Materials: DS may, in its sole discretion,
reference the CiBi in advertising and promotional materials in connection
with the issuance and promotion of any DS Product or Crypto iButton. Uses
of the CiBi's name include, but are not limited to: lists of the CiBis for
customer information, advertising of the Crypto iButton Service Provider
program containing the CiBi's name. When a specific advertisement or
promotion containing only the CiBi's name is planned, DS will obtain the
CiBi's written permission before such use. DS shall also obtain the CiBi's
written permission before use of any trademark or logo of the CiBi.
E. Changes in the CiBi Agreement Features: The CiBi understands that DS may
expand, change the scope or contents of, and/or delete, any benefits
offered under the Crypto iButton Service Provider program, including but
not limited to expanding, changing the scope or contents of and/or deleting
the CiBi Program Guide. In the event that DS adversely changes any program
features, and should the CiBi be dissatisfied with those changes, the CiBi
may CiBi terminate this Agreement in accordance with Section 3(B) and will
have no other recourse against DS and will not be bound by such changes,
while in the program.
F. DS agrees to defend the Crypto iButton against claims of direct
infringement when used as a standalone element provided its steel perimeter
is not violated and the software is not altered from the state the Crypto
iButton left DS.
8. LABELING.
Labeling of the DS Product or Crypto iButtons. The stainless steel case, which
defines the perimeter of the memory iButton products and the Crypto iButton, as
shown in Figure 3-1 of the iButton/TM/ Book of Standards. The case has a lower
surface for ground and an upper surface for data. The Crypto iButton from Dallas
Semiconductor has markings and trademarks physically on such ground and data
surfaces of the stainless steel perimeter. Subject to this Section 8, CiBi may
not remove, modify, or otherwise hinder the legibility of those markings. CiBi
may not interfere with or hinder the ability of a DS1402 Blue Dot Receptor to
read data from the data surface of the Crypto iButton by attaching material to
the data surface of the Crypto iButton. Material may be attached to the ground
side, for the purposes of mounting to a physical object and the ground side
markings can be covered only for this utilitarian purpose. DS will reasonably
work with CiBi to modify markings on the Crypto iButton to include its proposed
trademarks and designs; however, any revised markings on the Crypto iButton must
include the i in a circle compatibility logo, and CiBi must provide credit to DS
in its documentation in accordance with Section 6(A). No domestic nor foreign
government markings shall be covered or removed at any time.
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9. AUDIT
During the Term, DS and/or its designated representatives, shall have reasonable
access to the CiBi's pertinent books and records and shall have the right to
make authorized copies of such materials as is reasonable to verify the CiBi's
compliance with this Agreement. The DS shall conduct such audits during the
CiBi's normal business hours and, from time to time, as the XX xxxxx necessary.
11. NEW CRYPTO IBUTTONS OR DS PRODUCTS.
Notwithstanding any other provisions of this Agreement, DS may elect at any time
during the term of the Agreement to announce new DS Products and Crypto iButtons
to which the terms and conditions of this Agreement may not apply.
12. WARRANTIES/LIMITED WARRANTIES/DISCLAIMERS
A. DS WARRANTIES
YOU UNDERSTAND AND AGREE THAT THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED
WHATSOEVER INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE DS
MATERIALS UNDER THE CRYPTO iBUTTON SERVICE PROVIDER PROGRAM AGREEMENT.
B. CiBi WARRANTIES
CiBi hereby represents and warrants to DS as follows:
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(1) It warrants that all activities undertaken by it as a Crypto iButton
Service Provider, including any and all services offered or provided by it
under that designation, shall be provided with due care and skill, in
compliance with any and all applicable laws in the Territory and in a
manner which will not in any way, directly or indirectly, bring that
designation or any other designation, name or xxxx with which DS is
associated into disrepute. Without limitation to the foregoing, CiBi shall
in particular ensure that any end user complaint in respect of a CiBi
Product or service shall be dealt with in a reasonable manner. In this
regard CiBi shall be deemed to have acted reasonably in respect of any such
complaint if it responds promptly and in good faith to any such complaint
and assists DS to honor the terms and conditions of a Crypto iButton
License Agreement applicable to the DS Product or Crypto iButton which is
the subject of any such complaint.
(2) It hereby represents and warrants that the representatives of CiBi who
have signed this Agreement, or in the case of Electronic Approval, the CiBi
representatives who have signified CiBi's agreement and consent
electronically online, are the authorized representatives of CiBi duly
empowered to act on behalf of the CiBi and to legally bind the CiBi. CiBi
hereby further represents and warrants that it has reviewed thoroughly and
agrees to all components of this Agreement, including but not limited to,
the Country Annex, the Site Annex (if applicable), and the CiBi Program
Guide as it appears in the format applicable to CiBi either online at
xxxx://xxx.xXxxxxx.xxx/XxXx/ and off-line in the applicable data file
download, or on paper as applicable. In addition, CiBi represents and
warrants that all information provided herein (1) during the online and
off-line contracting process, (2) in the CiBi application, and (3) in the
Agreement is true and correct.
13. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND OTHER DAMAGES
IN NO EVENT WILL DS BE LIABLE TO YOU, YOUR COMPANY OR ANY OTHER PARTY FOR
DIRECT, INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES
ARISING FROM THE USE OF, OR INABILITY TO USE, THE DS MATERIALS OR FROM DS'S
BREACH OF THIS AGREEMENT, EVEN IF DS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
14. LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY
THE ENTIRE LIABILITY OF DS UNDER ANY PROVISION OF THIS AGREEMENT, CIBI'S
EXCLUSIVE REMEDY AGAINST DS, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY
CIBI FOR THAT UNUSED PORTION OF THE TERM OF THE CRYPTO iBUTTON SERVICE PROVIDER
MEMBERSHIP, EXCEPT FOR CLAIMS BASED ON DIRECT INFRINGEMENT OF THE CRYPTO iBUTTON
ON THE INTELLECTUAL PROPERTY OF ANOTHER PARTY.
15. U.S. GOVERNMENT RESTRICTED RIGHTS
All Products delivered to the U.S. Government other than the Department of
Defense on solicitations issued on or after December 1, 1995, shall be delivered
with commercial license rights only. All Products delivered to the Department of
Defense on solicitations issued on or after September 29, 1995, shall be
delivered with commercial license rights only. COMPANY shall be responsible for
ensuring that all Products delivered to the U.S. Government other than the
Department of Defense on solicitations issued prior to December 1, 1995, are
marked with the "Restrictive Rights" legend as set forth in FAR, 48 C.F.R.
52.227-19 (June 1987). COMPANY shall be responsible for ensuring that all
Products delivered to the Department of Defense on solicitations issued prior to
September 29, 1995, are marked with the "Restrictive Rights" legend as set forth
in FAR, 48 C.F.R. 252.227-7013 (October 1998). Manufacturer is Dallas
Semiconductor, 0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000-0000.
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16. EXPORT RESTRICTIONS
A) You may not export or reexport the DS Materials or any underlying
information or technology except in full compliance with all United States
and other applicable laws and regulations (currently including, but not
limited to the following countries Cuba, Iran, Iraq, Libya, North Korea,
Sudan and Syria).
B) You may not provide any Crypto iButton in any manner to any customer, or
end user whom CiBi or its customer knows or has reason to know will utilize
such Crypto iButton in the design, development or production of nuclear,
chemical or biological weapons, or to any end user who has been prohibited
from participating in U.S. export transactions by any federal agency of the
U.S. government.
NOTE: Cryptography technology is export-restricted by the Office of Export
Administration, United States Department of Commerce and the Office of Defense
Trade Controls and Munitions Control, United States Department of State
Certain versions of the Crypto iButton may be subject to the Arms Export Control
Act or other government export restrictions if it contains support for export-
restricted cryptography, even if the export-restricted cryptography itself is
not normally shipped with your application. For example, if your application
contains routines that call on the strong crypto capability of the iButton for
encryption, your application may be subject to the Arms Export Control Act or
other export regulations even though your application contains no actual
cryptographic code. Contact the Office of Defense Trade Controls for more
information: Office of Defense Trade Controls Bureau of Politico-Military
Xxxxxxx Xxxxxxxxxx xx Xxxxx Xxxxxxxxxx, XX 00000-0000.
17. GENERAL
A. Except as otherwise provided, all notices, authorizations, and requests in
connection with this Agreement shall be in writing, at the addresses set forth
below or to such other address as the party to receive the notice so designates
by written notice to the other.
B. This Agreement shall constitute the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior and
contemporaneous communications including all prior and current Crypto iButton
Service Provider Agreements. Except as otherwise provided herein, this Agreement
shall only be amended in writing or through the electronic display of the
amended Agreement. CiBi shall indicate acceptance of any amendments in the
manner identified in Section 17(J).
C. This Agreement shall be governed by the laws of the Territory in which CiBi
has its principal place of business. If the CiBi has its principal place of
business within the United States, this Agreement shall be governed by the laws
of the State of Texas.
D. If a particular provision of this Agreement is terminated or held by a
court of competent jurisdiction to be invalid, illegal, or unenforceable, this
Agreement shall remain in full force and effect as to the remaining provisions.
E. No waiver of any breach of any provisions of this Agreement shall
constitute a waiver of any prior, concurrent, or subsequent breach of the same
or any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
F. Neither this Agreement, nor any terms and conditions contained herein,
shall be construed as creating a partnership, joint venture, franchise or agency
relationship.
G. The CiBi agrees that it shall inform its customers that the CiBi is an
independent business from DS, and shall
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not hold itself out as an agent of DS, or attempt to bind DS to any third party
agreement.
H. Sections 6, 7F, 8, 11, 12, 13, 14, 15 and 16 shall survive the expiration
or earlier termination of this Agreement.
I. This Agreement, and any rights or obligations hereunder, shall not be
assigned, or sub-contracted by the CiBi, without DS' prior written consent.
FOR ANY NEWLY ENROLLING CiBi, TO AGREE TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO, THE SITE ANNEX (IF APPLICABLE), THE
COUNTRY ANNEX, THE CiBi PROGRAM GUIDE AND ANY OTHER APPLICABLE ANNEXES AND
ADDENDA, AN AUTHORIZED REPRESENTATIVE OF THE CiBi MUST COMPLETE ALL REQUIRED
INFORMATION AND SIGN, DATE, AND RETURN TO DS A SIGNED COPY OF THIS AGREEMENT AND
THE SITE ANNEX (IF APPLICABLE) TOGETHER WITH A PAYMENT FOR THE APPROPRIATE FEES.
J. FOR ANY RENEWING CiBi, CiBi'S ACCEPTANCE OF ANY AMENDED TERMS OF THE
AGREEMENT MAY BE INDICATED BY ELECTRONIC ACCEPTANCE AND APPROPRIATE FEES AND THE
SITE ANNEX (IF APPLICABLE). IF ELECTRONIC ACCEPTANCE IS NOT RECOGNIZED AS A
VALID MEANS OF ACCEPTANCE IN THE TERRITORY OR IF THE CAPABILITIES OF THE ONLINE
CONTRACTING PROCESS IN CiBi'S TERRITORY ARE LIMITED IN SCOPE, CiBi MUST RETURN A
SIGNED AGREEMENT, THE APPROPRIATE FEES AND THE SITE ANNEX (IF APPLICABLE) TO DS.
NOTE THAT NO BINDING AGREEMENT IS FORMED UNTIL A DS' APPOINTED
REPRESENTATIVE HAS AFFIXED THEIR SIGNATURE BELOW AND THEREBY APPROVED CiBi
AS A CRYPTO iBUTTON SERVICE PROVIDER. IN ADDITION, NOTE THAT NEITHER THE
CASHING OF THE CiBi'S CHECK, NOR ACCEPTANCE OF PAYMENT OF FEES IN ANY
MANNER WHATSOEVER, SHALL BE CONSIDERED "ACCEPTANCE" OF THESE AGREEMENTS BY
DS. DS' APPROVAL SHALL BE INDICATED BY DS' AUTHORIZED REPRESENTATIVE
AFFIXING THEIR SIGNATURE BELOW OF WHICH A COPY OF THIS, PROPERLY EXECUTED,
AGREEMENT SHALL BE SENT TO A NEW OR RENEWING CiBi.
For newly enrolling CiBis and for any renewing CiBis in a Territory which
does not recognize Electronic Acceptance, your signature below indicates
your acceptance of the terms and conditions.
K. INDEMNITY. WHEN ANY OF CiBi'S PRODUCTS ARE USED WITH ANY LICENSED CRYPTO
iBUTTON OR DS PRODUCT SOLD UNDER THIS AGREEMENT, CiBi AGREES TO DEFEND,
INDEMNIFY AND HOLD HARMLESS DS, ITS SUCCESSORS AND PARENTS, SUBSIDIARIES AND
AFFILIATES AND THEIR EMPLOYEES, OFFICERS AND DIRECTORS, FROM AND AGAINST ANY
LOSS, DAMAGE, COSTS, OR EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES), ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OF THE SERVICES OR PRODUCT
PROVIDED BY CiBi OR CiBi'S (OR ANY OF ITS AGENTS OR EMPLOYEES) ACTS OR OMISSIONS
IN CONNECTION WITH THIS AGREEMENT, EXCLUDING CLAIMS BASED ON DIRECT INFRINGEMENT
OF THE CRYPTO iBUTTON ON THE INTELLECTUAL PROPERTY OF ANOTHER PARTY.
--KEEP THIS AGREEMENT FOR YOUR RECORDS--
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COUNTRY ANNEX
CRYPTO iBUTTON SERVICE PROVIDER AGREEMENT
CiBi
The terms and conditions set forth herein are incorporated by reference into the
Crypto iButton Service Provider Agreement. To the extent any terms set forth in
this Country Annex are in conflict with the Core Terms and Conditions, the terms
set forth herein shall govern.
DALLAS SEMICONDUCTOR ENTITY:
TERRITORY:
For the purposes of this Agreement, the Territory shall be the country in which
the CiBi is located. NOTWITHSTANDING THE FOREGOING, IF AN CiBi IS A MEMBER OF
THE EUROPEAN UNION OR THE EUROPEAN FREE TRADE ASSOCIATION, ITS TERRITORY SHALL
BE DEEMED TO BE BOTH THE EUROPEAN UNION AND THE EUROPEAN FREE TRADE ASSOCIATION.
Notwithstanding the foregoing, if an CiBi is located in the United States or
Canada, its Territory shall be deemed to be both the United States and Canada.
As used herein, "United States" shall mean the continental states and Hawaii and
Alaska.
COUNTRY SPECIFIC LEGAL TERMS
1. UNITED STATES AND CANADA: The terms and conditions set forth below
shall be added and shall only apply to the Agreement in force in the United
States and Canada:
SECTION 17(J): A new subsection (J) is added to Section 17 as
follows:" It is the express wish of the parties that this Agreement
and all related documents be drawn up in English. C'est la volente
expresse des parties que la presente convention ainsi que les
documents qui s'y rattachent soient rediges en anglais."
*******
2. AUSTRALIA: The terms and conditions set forth below shall be added and
shall only apply to the Agreement in force in Australia:
SECTION 2: The following sentence is added to the end of this
Section:" It is an added condition of this Agreement that CiBi comply
at all times for the duration of this Agreement with all criteria for
the appointment of Crypto iButton Service Providers issued from time
to time by DS and in particular, without limitation, any criteria as
to net revenue flowing to DS arising out of CiBi's appointment
hereunder. Additionally, all Sites must meet those same criteria for
the appointment of Crypto iButton Service Providers."
SECTION 12 A: The following sentence is added after the second
sentence of this Section: "TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, SUBJECT TO SECTION 7 AND
11
ADDITIONALLY TO ANY PROVISION OF THIS AGREEMENT, THE LIMITED
WARRANTIES GIVEN BY DS IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU
OF ALL OTHER WARRANTIES AND CONDITIONS WHATSOEVER, WHETHER EXPRESS,
IMPLIED OR STATUTORY."
SECTION 17: A new subsection (J) is added at the end of Section 17:
Notwithstanding Sections 12A and 14 or any other provision of this
Agreement, if anything arising out of or connected with this Agreement
constitutes a supply of goods or services to a consumer, then Company
may have the benefit of certain rights or remedies pursuant to the
Trade Practices Act and similar state and territory laws in Australia,
in respect of which liability may not be excluded or restricted and
nothing in this Agreement will have the effect of so excluding or
restricting those rights or remedies. Insofar as such liability may
not be excluded, then to the maximum extent permitted by law such
liability is limited, at DS' exclusive option, in the case of
Services, either by supplying the services again or the payment of the
cost of having the services supplied again and in the case of goods,
to either (a) replacement of the goods; or (b) correction of defects
in the goods.
SECTION 17: A new subsection (J) is added at the end of Section 17:
NOTHING IN THIS AGREEMENT IS INTENDED TO PREJUDICE, OR HAVE THE EFFECT
OF PREJUDICING, ANY RIGHTS CIBI MAY HAVE UNDER AUSTRALIAN LAW OR OF
THE STATES OF AUSTRALIA WHICH CANNOT LEGALLY BE EXCLUDED OR RESTRICTED
AND THE TERMS OF THIS AGREEMENT MUST BE READ ACCORDINGLY.
*******
3. PEOPLE'S REPUBLIC OF CHINA: The terms and conditions set forth below
shall be added and shall only apply to the Agreement in force in the
People's Republic of China.
SECTION 6(A): The following language is added at the end of Section
6(A): "As more fully described in the Branding Policy, CiBi shall be
obliged to comply with all recorded formalities as a trademark
licensee under the applicable laws of the People's Republic of China."
SECTION 12: A new subsection (C) is added at the end of Section 12:
"CiBi hereby represents and warrants to DS at the time of the
execution of this Agreement and during the term of this Agreement:
(1) It is validly established as an enterprise legal person under
the laws of the People's Republic of China;
(2) It has been issued a business license which will be valid
throughout the term of this Agreement;
(3) The scope of business set forth on its business license is
consistent with the activities which it will undertake under this
Agreement;
(4) It has been established with sufficient registered capital to
assume the obligations set out under this Agreement;
(5) It has authority to directly enter into and perform foreign
economic contracts;
(6) Its legal representative or a person validly authorized in
writing by the legal representative has signed this Agreement,
and
(7) Each of the foregoing representations and warranties are true
in respect of any Affiliate which will
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provide a Site.
SECTION 17(C): The following is added between the first and second
sentences of this Section: "This Agreement will be governed by the
laws of the People's Republic of China. If a dispute arises in
connection with the interpretation or implementation of this
Agreement, either party may submit the dispute for arbitration to
Beijing Arbitration Commission (the "Arbitration Commission") for
arbitration in accordance with the rules of arbitration of such
Arbitration Commission. The place of arbitration will be Beijing, the
People's Republic of China. The arbitration proceeding shall be
conducted in English. The arbitral award will be final and binding on
both parties. If either DS or CiBi employs attorneys to enforce any
rights arising out of or relating to this Agreement, the prevailing
party will be entitled to recover reasonable costs and attorneys'
fees.
SECTION 17(D): The following is added at the end of this Section:
"Without limiting the generality of the foregoing, the parties hereby
agree that in the event of any dispute concerning the enforceability
of this Agreement, Section 3 of this Country Annex and Section 12(C)
shall be interpreted as an independent agreement between the parties."
* * * * * * *
3. INDONESIA
SECTION 3A NEW SUBSECTION (F) SHALL BE ADDED AS TO THIS SECTION:
To the extent necessary to implement the termination provisions of
this Agreement, each of the parties hereby waives any right or
obligation, it or the other party may have under any applicable law or
regulation, including without limitation Section 1266 of the
Indonesian Civil Code, to request or obtain the approval, order,
decision or judgment of any court to terminate this Agreement.
SECTION 17: The following language shall be added as subsection 17(J):
"It is the express wish of the parties that this Agreement and all
related documents be drawn up in English."
* * * * * * *
4. NEW ZEALAND: The terms and conditions set forth below shall be added
and shall only apply to the Agreement in force in New Zealand:
SECTIONS 12 AND 14: Sections 12 and 14 shall only apply to the extent
permitted by law.
A new paragraph C shall be added to Section 12:
"CiBi acknowledges that all DS Software, Services, Products and Crypto
iButtons under this agreement are provided for business purposes and
agrees that the Consumer Guarantees Act does not apply to their supply
by DS or acquisition by CiBi under this Agreement."
A new paragraph D shall be added to Section 12:
A. Where CiBi is providing DS Software, Services, Crypto iButtons or
Products (as applicable) to:
(1) a consumer acquiring them for business purposes (as that term
is defined in the Consumer Xxxxxxxxxx Xxx, 0000 ("Business
Purposes"); or
(2) a person who may, whether directly or indirectly, issue the
Crypto iButton, or sell DS Software, Services or DS Products to a
consumer acquiring them for Business Purposes;
13
it must be a term of the CiBi's contract with that person that
either the Consumer Xxxxxxxxxx Xxx, 0000 ("CGA") does not apply
in respect of the Crypto iButton, DS Software, Services or DS
Products (as applicable) or, alternatively, that person will
ensure that an agreement is entered into with the end consumer of
the Crypto iButton, DS Software, Services or DS Products (as
applicable) to the effect that the CGA does not apply in respect
of such Crypto iButtons, Software, Services or Products.
Notices. All notices, requests or other communications required
-------
or permitted to be delivered hereunder shall be in writing, by
certified mail (return receipt requested), addressed to the
contact below:
CiBi Contact: Name: Xxxx Prime DS Contact: Xxxxx X. Xxxxxx
Title: Vice President, Finance Contracts Administrator
Company: E-Stamp Corporation Dallas Semiconductor
Address: 0000 Xxxxxxx Xxx, Xxxxx 000 4401 Beltwood Parkway
City, State, Zip Code: Xxxx Xxxx XX 00000-0000 Xxxxxx, Xxxxx 00000-0000
E-mail address: xxxx.xxxxx@xxxxxx.xxx xxxxx.xxxxxx@xxxxxxx.xxx
IN WITNESS WHEREOF, both parties have caused this Agreement to be signed and
delivered by its duly authorized representative on the dates set forth below to
be effective as of the Effective Date.
Crypto iButton Service Provider (CiBi): Dallas Semiconductor Corporation (DS)
X /s/ Xxxxx X. Xxxxxx X /s/ Xxxxxxx Xxxxx
Printed Name : Xxxxx X. Xxxxxx Printed Name: Xxxxxxx Xxxxx
Title: President & CEO Title: V P Marketing
Date: 8/21/98 Date: 8-20-98
14
