****CERTAIN PORTIONS OF THIS EXHIBIT 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.
EXHIBIT 10.8
TECHNOLOGY LICENSE AGREEMENT
THIS AGREEMENT is made the 1st day of June, 1999.
B E T W E E N
724 SOLUTIONS INC., a corporation incorporated under the laws of
Ontario, having its principal place of business at 0000 Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 ("724")
-AND-
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, a national
banking association, having an office at 000 Xxxxx Xxxxxx, Xxx
Xxxxxxxxx, XX, X.X.X., 00000 ("BOFA")
BACKGROUND:
1. 724 is in the business of designing, developing and marketing
Internet-based electronic banking applications over a variety of access
platforms.
2. Pursuant to a letter of intent entered into by 724 and BofA, dated as of
December 21, 1998, 724 had agreed to license to BofA certain technology
developed by 724 as at the date of this Agreement and during the period
commencing on the date hereof, until February 1, 2000 (the "First
Anniversary") (such technology being, the "1999 Technology"), in return
for a specified license fee (the "1999 License Fee"). 724 granted a
further option to BofA to license the technology developed by 724 during
the one year period commencing on the First Anniversary (the "2000
Technology") for a further license fee that is equal to the 1999 License
Fee (the "2000 License Fee"). Thereafter, BofA would be entitled to
license certain technology developed by 724 during each subsequent year
for an additional fee per year.
3. 724 and Bank of America Corporation ("BAC"), an affiliate of BofA, have
entered into a subscription agreement, dated as of the date hereof (the
"Subscription Agreement"), pursuant to which BAC has agreed to subscribe
for certain shares of 724 as of the date hereof, and certain additional
shares on the First Anniversary. BofA has agreed to license both the
1999 Technology and the 2000 Technology, and to pay both of the 1999
License Fee and the 2000 License Fee (collectively, the "License Fee"),
all in accordance with the terms and conditions of this Agreement.
IN CONSIDERATION of the premises, the mutual covenants contained herein and
other good and valuable consideration (the receipt and sufficiency of which are
hereby irrevocably acknowledged), the parties hereto agree as follows:
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ARTICLE I
INTERPRETATION
1.1 DEFINITIONS. In this Agreement, the following expressions shall have the
following meanings:
"1999 DEVELOPMENT PLAN" means the 1999 technology development plan for
724 determined by the Parties and attached hereto as Schedule "B";
"2000 DEVELOPMENT PLAN" means the 2000 technology development plan for
724 to be determined by the Parties in accordance with Section 2.13
hereof, the principal milestones of which are outlined in Schedule "C"
hereof;
"2000 SHARES" means the 270,895 common shares of 724 to be issued to BAC
(or its assignee in accordance with the Subscription Agreement) as at the
First Anniversary;
"AFFILIATE" has the following meaning:
(a) one body corporate shall be considered Affiliated with another
body corporate if, but only if, one of them is the subsidiary of
the other or both are subsidiaries of the same body corporate or
each of them is controlled by the same person;
(b) a body corporate shall be considered to be controlled by a person
or by two or more bodies corporate if, but only if:
(i) voting securities of the first-mentioned body corporate
carrying more than 50% of the votes for the election of
directors are held, other than by way of security only, by
or for the benefit of such other bodies corporate; and
(ii) the votes carried by such securities are sufficient, if
exercised, to elect a majority of the board of directors of
the first-mentioned body corporate;
(c) a body corporate shall be considered a subsidiary of another body
corporate if, but only if:
(i) it is controlled by:
(I) that other body corporate, or
(II) that other body corporate and one or more bodies
corporate each of which is controlled by that other
body corporate, or
(III) two or more bodies corporate each of which is
controlled by that other body corporate; or
(ii) it is a subsidiary of a body corporate that is a subsidiary
of that other body corporate;
"AGREEMENT" means this Agreement, all schedules attached hereto and any
agreement or schedule supplementing or amending this Agreement. The
words "hereto," "herein,"
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"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;
"ALLIANCE ANNIVERSARY" has the meaning ascribed to it in Section 2.3;
"ASSOCIATE", where used to indicate a relationship with any person,
means,
(a) any body corporate of which the person beneficially owns,
directly or indirectly, voting securities carrying more than 10
per cent of the voting rights attached to all voting securities
of the body corporate for the time being outstanding,
(b) any partner of that person,
(c) any trust or estate in which the person has a substantial
beneficial interest or as to which the person serves as trustee
or in a similar capacity;
(d) any relative of the person, including the person's spouse, where
the relative has the same home as the person; or
(e) any relative of the spouse of the person where the relative has
the same home as the person;
"BOFA FUNDED IMPROVEMENT" has the meaning ascribed to it in Section 2.9;
"BOFA GROUP" has the meaning ascribed to it in Section 4.3.1;
"BUSINESS" means the business of 724, being the business of designing,
developing, marketing, licensing and supporting Internet-based electronic
banking and e-commerce applications over a variety of access platforms,
which is carried on by 724 in North America and may be carried on in
other jurisdictions from time to time;
"BUSINESS DAY" means any day other than a Saturday, Sunday or holiday
observed by Bank of Montreal or BofA;
"CLAIM" means any claim, demand, action, cause of action, damage, loss,
liability, cost or expense (including reasonable professional fees and
disbursements as finally awarded) which may be paid, sustained, suffered
or incurred directly by a Person who asserts a right of compensation,
contribution or indemnity (a "Claimant") or which may be made or brought
against the Claimant by another Person;
"COMPETITOR" means any person or entity which, directly or indirectly
through any Affiliate or Associate of such person or entity: (i) carries
on the Business; and (ii) competes materially with 724 as determined by
the Board of Directors of 724 acting reasonably;
"CONFIDENTIAL INFORMATION" means all information marked as confidential,
or identified as confidential if delivered orally and, in any case,
disclosed by or on behalf of either
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Party or their respective Affiliates or subsidiaries (the "DISCLOSING
PARTY") to the other (the "RECIPIENT") or coming to the attention of
the Recipient, its Affiliates, subsidiaries or other controlled
entities or their respective employees, officers, directors, agents or
advisors (collectively, the "RECIPIENT GROUP"), together with,
regardless of the manner of disclosure and whether or not it was
marked or identified as confidential, the source code version of the
Licensed Technology (including all physical and electronic
manifestations thereof), the Specified Confidential Information, BofA
Funded Improvements that are Derivative Works, Third Party Materials
and BofA's customer information. Confidential Information does not
include any of the following items: (i) information which at the time
of its disclosure is publicly available otherwise than as a result of
disclosures in breach of a duty or obligation in favour of the
Disclosing Party or its Affiliates and through no fault of the
Recipient Group; (ii) information which, after disclosure hereunder,
is released to the public by the Disclosing Party without restriction
or otherwise properly becomes part of the public domain through no
fault of the Recipient Group or any other Person who, to the knowledge
of the Recipient after exercising due diligence, owed a duty of
confidentiality to the Disclosing Party or its Affiliates (but only
after it is released or otherwise becomes part of the public domain);
(iii) information which the Recipient can demonstrate was in the
possession of a member of the Recipient Group at the time of
disclosure and which was not acquired by such Person directly or
indirectly under any obligation of confidence or from a Person who, to
the knowledge of the Recipient after exercising due diligence, owed an
obligation of confidentiality with regard to such information (for the
purposes of subsections (ii) and (iii) information shall also be
treated as confidential after the Disclosing Party shall have
demonstrated to the Recipient that, notwithstanding its due diligence
at the time of disclosure, the source of the information was in fact
under a duty of confidentiality with respect to such information - the
Recipient Group shall not be liable for having acted in good faith
that such information was not confidential until the Recipient is so
informed); and (iv) information which the Recipient can demonstrate
was independently developed by any member of the Recipient Group
without any use of, or reference to, the Confidential Information of
the Disclosing Party;
"CONTINUING ALLIANCE" has the meaning ascribed to it Subsection 2.3;
"CONTINUING ALLIANCE FEE" means $****;
"CPI" means the Consumer Price Index (All Items) as published by the
United States Department of Commerce Bureau of Labor Statistics, or any
successor index thereto;
"CUSTOMER OF BOFA" means a retail or other "end user" financial services
customer of BofA and/or of one of its Affiliates; for purposes of this
definition, a retail or other "end user" is an individual consumer who
accesses the financial services and other products provided by BofA or of
its Affiliates using the Licensed Technology or an employer which
procures access using the Licensed Technology to such financial services
and other products for its employees for their personal consumption and
for use in their employer's business (provided that such business is an
"end user");
"DELIVERABLES" means the 724 Technology as it exists on the date hereof,
and each additional deliverable listed in the 1999 Development Plan and
the 2000 Development
[****]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.
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Plan, as they may be revised by the Parties from time to time in
accordance with the provisions of this Agreement;
"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;
"ETA" means the EXCISE TAX ACT (Canada);
"IMPROVEMENT" has the meaning ascribed to it in Section 2.9;
"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" includes: (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 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;
"LICENSE FEE" is $**** million;
"LICENSE FEE HOLDBACK" means ****% of the License Fee;
"LICENSED TECHNOLOGY" means: (i) all of the Deliverables; (ii) all other
724 Technology developed by 724 prior to the Second Anniversary; and
(iii) all other 724 Technology delivered to BofA in accordance with the
provisions of Section 2.3, together with all (a) Updates and Upgrades
delivered to BofA in accordance with this Agreement or the Maintenance
and Support Agreement; (b) Improvements delivered in accordance with this
Agreement which are not BofA Funded Improvements; and (c) BofA Funded
Improvements which are Derivative Works;
"MAINTENANCE AND SUPPORT AGREEMENT" means the software maintenance and
support agreement between the Parties dated as of the date hereof, the
form of which is attached hereto as Schedule "D";
"ORST" means retail sales tax and other amounts payable pursuant to the
ORSTA;
"ORSTA" means the RETAIL SALES TAX ACT (Ontario);
"PARTY" means either 724 or BofA and "PARTIES" means both of them;
[****]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.
-6-
"PERSON" shall be broadly interpreted and includes an individual,
corporation, partnership, joint venture, trust, association,
unincorporated organization or any other entity recognized by law;
"SECOND ANNIVERSARY" means February 1, 2001;
"724 CHANNEL" means any one of the home banking channels developed or to
be developed by 724 which may include: mobile channels (E.G. WAP wireless
phones, palm pilot, WinCE palm-sized PCs), a PC plug-in, game consoles
and set-top boxes;
"724 TECHNOLOGY" means the Intellectual Property Rights and the Technical
Information relating to the 724 Channels developed by or for 724 that are
provided to or intended to be provided to 724's customers generally and
expressly excludes confidential or proprietary enhancements and
modifications of or for 724's other customers, as determined by 724, but
shall include the Deliverables;
"SPECIFIED CONFIDENTIAL INFORMATION" means all of 724's computer
programs, code, algorithms, user manuals, programmer instructions,
programmer materials, development notes, schematics, architectural
diagrams and drawings, patent applications, 724's product and marketing
plans and strategies, forecasts, financial plans, business models and
business plans, customers, customer lists, financial statements and
projections, tax returns, non-public product pricing, materials presented
to members of the board of directors of 724 or to the shareholders of
724, names and expertise of employees (when such name or expertise is
disclosed by or on behalf of one Party to the other), the terms of this
Agreement and any Technical Information or proprietary business
information disclosed, made available, or otherwise obtained on 724's
premises;
"SUBSCRIPTION AGREEMENT" means the subscription agreement between 724 and
BAC dated as of the date hereof;
"TAX RATE" means, at any given time, the combined Canadian federal and
Ontario provincial corporate tax rate applicable to non-manufacturing and
processing active business income earned by a corporation which is not a
Canadian controlled private corporation, including any applicable
surtaxes;
"TECHNICAL INFORMATION" means all right, title and interest in and to all
technical know-how of 724 including:
(i) all information of a scientific, technical or business nature
whether in oral, written, graphic, machine readable, electronic
or physical form; and
(ii) all patterns, plans, designs, research data, research plans,
trade secrets and other proprietary know-how, processes,
formulas, drawings, technology, computer software and related
manuals, unpatented blue prints, flow sheets, equipment and parts
lists, instructions, manuals, records and procedures;
"THIRD PARTY MATERIALS" means any software, documentation, technology,
Intellectual Property Rights and other materials which are not owned by
724 but delivered to BofA
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hereunder together with the Licensed Technology or incorporated in the
Licensed Technology;
"UPDATE" means a set of procedures or new program code that 724
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 (the determination of
whether a version or release is an Update or Upgrade in accordance with
this and the following definition shall be made by 724 in good faith);
"UPGRADE" means a new version or release of 724 Technology that 724 makes
generally available to its customers to improve the functionality of, or
add functional capabilities to, the Licensed Technology or to support
additional 724 Channels.
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. The Parties agree that this Agreement, the Maintenance
and Support Agreement and the Subscription Agreement constitute the
complete and exclusive statement of the terms and conditions between them
covering the performance thereof and cannot be altered, amended or
modified except in writing executed by the Parties to be bound thereby.
Each of the Parties acknowledge that it has not been induced to enter
into this Agreement by any representations and it has not relied on any
representations, warranties or conditions not specifically stated herein
or in the Subscription Agreement or the Maintenance and Support
Agreement.
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 California 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
California contract. The Parties submit to the non-exclusive
jurisdiction of the courts of the Province of Ontario or California. 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. The Parties expressly exclude the
application of the United Nations Convention on Contracts for the
International Sale of Goods.
1.7 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 of America.
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1.8 COMPUTATION OF TIME. When calculating the period of time within which or
following which any act is required or permitted to be done, notice given
or step taken pursuant to this Agreement, the date which is the reference
date in calculating such period shall be excluded. If the last day of
such period is a non-Business Day, the period in question shall end on
the next following Business Day.
1.9 SCHEDULES. The following Schedules are incorporated into and form part
of this Agreement:
Schedule "A" Arbitration Rules of Procedure
Schedule "B" 1999 Development Plan
Schedule "C" Principal Milestones of the 2000 Development Plan
Schedule "D" Form of Maintenance and Support Agreement
ARTICLE II
GRANT OF LICENSE
2.1 GRANT OF LICENSE. Subject to the terms and conditions hereof, 724 grants
to BofA a non-exclusive, non-transferable, fully paid-up, royalty-free,
irrevocable, worldwide, perpetual license:
(a) USE OF LICENSED TECHNOLOGY BY BOFA AND ITS AFFILIATES: to use,
modify, enhance, amend and/or change the Licensed Technology
required to modify, enhance, amend, change, maintain, implement,
correct, update and support the 724 Channels and create
Derivative Works thereof for its own internal use and the
internal use of Affiliates of BofA (only for so long as they
remain Affiliates); and
(b) USE BY CUSTOMERS OF BOFA AND ITS AFFILIATES: to sublicense and
distribute only the client executable version of the Licensed
Technology as modified or amended, including any Derivative
Works, to Customers of BofA and Customers of Affiliates of BofA
(with respect to particular Customers, only for so long as the
relevant Affiliate of BofA remains an Affiliate) but only for
their own personal display and use in connection with the banking
business of BofA and its Affiliates.
Provided however, that the license hereby granted shall not extend to any
use by, or disclosure to, Affiliates of BofA or any other Person
contemplated by this Section 2.1 which is, directly or indirectly, (or
who is a director, officer, employee or agent of) a Competitor unless
such company or other entity is wholly-owned, directly or indirectly, by
Bank of America Corporation. Provided, however, that notwithstanding the
immediately preceding sentence, BofA shall be entitled to license
Customers of BofA or of its Affiliates who are Competitors to use the
client-executable version of the Licensed Technology (i.e. manifestations
of the Licensed Technology intended for use by the end-user and not
including the Source Code or those components of Specified Confidential
Information not reasonably necessary for BofA's Customer to use the
Licensed
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Technology in the manner contemplated by this Section 2.1) so long as
BofA obtains for 724's benefit the agreement contemplated in Sections
2.1, 2.2 and 2.6.
Subject to the foregoing, 724 grants BofA the right to authorize other
Persons to carry out any of the foregoing permitted uses in this Section
2.1 on behalf of BofA, provided that BofA shall cause such other Person
to not further disclose or make use (unless such other Person is merely a
Customer of BofA or of its Affiliates, in which case BofA need merely
cause such Customer to agree to not further disclose or make use) of the
Licensed Technology or the Confidential Information of 724 in any manner
whatsoever except for and on behalf of BofA as provided in this Section.
BofA shall cooperate with 724 in enforcing its rights against such
Persons specified above, including: (a) making 724 a third party
beneficiary in any agreement that grants the authority to a third party
in accordance with this Section 2.1; (b) taking such action as is
reasonably necessary to enforce BofA's agreements with such Persons; and
(c) promptly notifying 724 upon becoming aware of any breach by any such
Person of any right of 724 hereunder or otherwise, including any
infringement of 724's Intellectual Property Rights or any unauthorized
disclosure or use of 724's Confidential Information.
BofA hereby covenants and agrees to indemnify and hold harmless 724 in
respect of all losses (including loss of profit or revenue), costs,
damages, liabilities, obligations and expenses incurred or sustained
(together with the amount of all taxes thereon, including as provided in
Section 3.3) in the event that any Person (unless such Person is merely a
Customer) contemplated by this Section 2.1 uses or discloses 724's
Confidential Information contrary to the terms hereof. With respect to
Persons who are merely Customers of BofA or of its Affiliates, BofA shall
similarly indemnify and hold harmless 724 unless it obtained for 724's
benefit the agreements contemplated in Sections 2.1, 2.2 and 2.6 and it
has not made available to such Customer any 724 Technology, Third Party
Materials or BofA Funded Improvements which are Derivative Works contrary
to the terms hereof. For the purposes of Article IV, a claim for any
such indemnity shall be a "Breach of Confidentiality Claim".
2.1.1 CLARIFICATION OF PERMITTED USE. For greater certainty, it is the
intent of the parties that, while BofA may subcontract to third
parties certain permitted functions involving the Licensed
Technology in accordance with the provisions of Section 2.1, the
third parties shall only be entitled to use and/or disclose the
Licensed Technology and 724's Confidential information for the
benefit of BofA or its Affiliates and not for their own internal
use or in their own businesses. BofA acknowledges and agrees
that the parties intend that the practical effect of Section 2.1
shall be that the benefit of use of the Licensed Technology and
724's Confidential Information in accordance with the terms
hereof shall only extend to BofA and its Affiliates. Therefore,
the reference to a prohibition on the operation of a "service
bureau" in Section 2.2 is meant to confirm that BofA and its
Affiliates shall not have a license to use or disclose the
Licensed Technology or 724's Confidential Information for the
benefit of a third party, since that would deny 724 the right and
opportunity to negotiate a separate license fee with the third
party. Therefor, the License hereby granted shall not be
construed so as to permit any third party other than Affiliates
of BofA (and then only to the extent provided above) to receive,
copy, review, use or benefit from the Licensed Technology or
724's Confidential Information. The third party users referred
to
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in Section 2.1 are merely to be performing functions for BofA
that it could have done itself in accordance with the license
terms. Provided, however, that notwithstanding the foregoing,
and for greater certainty, the licenses granted herein include
the right to sublicense a business Customer to use the
client-executable version of the Licensed Technology for its
own internal "end user" business purposes.
2.2 RESTRICTIONS ON USE. BofA shall: (a) not transfer, assign, lease,
export, grant a sublicense of, or otherwise make available, the Licensed
Technology or the license contained herein or 724's Confidential
Information to any Person except as and when authorized to do so herein;
(b) not use the Licensed Technology or 724's Confidential Information
except as authorized herein; (c) not use the Licensed Technology or 724's
Confidential Information to act as a service bureau, in whole or in part,
for any other Person; (d) take such precautions with respect to the
Licensed Technology and 724's Confidential Information as BofA would
otherwise take to protect its own proprietary software or hardware or
information from unauthorized use or disclosure. BofA shall cause each
of its Affiliates, independent contractors, permitted sublicensees of the
Licensed Technology, Customers of BofA and Customers of BofA's Affiliates
who are granted the right to use the Licensed Technology and each of the
other Persons contemplated by Section 3.1 to agree to comply with the
above restrictions (provided that, for Customers, the provisions of
clause (d) above shall refer instead to such precautions as such
Customers would take with respect to their own Intellectual Property, but
not less than a reasonable standard of care).
BofA shall include (and shall cause its Affiliates to include)
counterpart restrictions which are substantially the same as the
restrictions set forth in the preceding clauses (a) through (d), in each
license, services or other agreement of BofA or its Affiliates concerning
the Licensed Technology or concerning services or products using or
incorporating the Licensed Technology. BofA shall cooperate with 724 in
enforcing the above-mentioned restrictions against its Affiliates,
independent contractors, permitted sublicensees of the Licensed
Technology and Customers of BofA who are granted the right to use the
Licensed Technology and the other Persons contemplated by Section 3.1 or
any other person obtaining access through BofA, directly or indirectly,
to the 724 Technology or to 724's Confidential Information, including:
(i) making 724 a third party beneficiary in any agreement that grants the
authority to a third party to use the Licensed Technology or 724's
Confidential Information; (ii) taking such action as is reasonably
necessary to enforce BofA's agreements with such Persons; and
(iii) promptly notifying 724 upon becoming aware of any breach by any
such Person of any right of 724 hereunder or otherwise, including any
infringement of 724's Intellectual Property Rights and any unauthorized
disclosure or use of 724's Confidential Information.
2.3 SCOPE OF LICENSED TECHNOLOGY: In addition to the items specified in the
definition of "LICENSED TECHNOLOGY" appearing in Section 1.1 of this
Agreement, "LICENSED TECHNOLOGY" shall include the following:
2.3.1 CONTINUING ALLIANCE BEYOND SECOND ANNIVERSARY. If BofA pays the
full amount of the License Fee, and BAC (or such other Affiliate
of BAC as shall be permitted by the Subscription Agreement)
subscribes for and pays to 724 the full subscription price for
the 2000 Shares in accordance with the terms and
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conditions of the Subscription Agreement, it may elect prior
to the Second Anniversary, and at each anniversary thereafter,
to continue as a development partner with 724 for an
additional year and thereby to license additional 724
Technology (the "CONTINUING ALLIANCE" and each anniversary
after the Second Anniversary during the Continuing Alliance is
referred to as an "ALLIANCE ANNIVERSARY") in consideration of
the Continuing Alliance Fee, adjusted once annually at 724's
option for increases in the CPI during the prior 12 month
period. No earlier than 90 days prior to the Second
Anniversary and prior to each Alliance Anniversary thereafter,
724 shall invoice BofA for the Continuing Alliance Fee on
terms which are net 60 days. If BofA does not remit payment
within 60 days after receipt of any particular invoice, BofA
shall be deemed to have elected not to enter into or extend
(as the case may be) the Continuing Alliance beyond the Second
Anniversary or beyond the day before the Alliance Anniversary
which is the first day of the Continuing Alliance period in
respect of which such invoice was prepared (as the case may
be). Under the Continuing Alliance, BofA shall license
additional 724 Technology so that the Licensed Technology
shall include, in addition to all 724 Technology previously
licensed hereunder, all 724 Technology developed by 724 up to
the end of the Continuing Alliance.
BofA's right to continue the Continuing Alliance terminates as of
the close of business on the last day of the last 12-month period
that the Continuing Alliance was in effect; provided that BofA
may reinstate the Continuing Alliance at any time during the two
year period after such alliance was terminated, by paying the
Continuing Alliance Fee for all prior periods for which it has
not been paid, with interest calculated in accordance with
Section 4.4. For greater certainty, BofA may reinstate the
Continuing Alliance after it has been terminated only one time.
2.3.2 SECOND ANNIVERSARY. If BofA pays the full amount of the License
Fee, and BAC (or such Affiliate of BAC as shall be permitted by
the Subscription Agreement) subscribes for and pays to 724 the
full subscription price for the 2000 Shares in accordance with
the terms and conditions of the Subscription Agreement, but does
not elect, or is deemed (pursuant to Section 2.3) not to have
elected, to enter into the Continuing Alliance as at the Second
Anniversary, the Licensed Technology shall include, in addition
to all components previously licensed hereunder, all 724
Technology developed up to the Second Anniversary and the first
version of each 724 Channel that is significantly completed as at
the Second Anniversary.
2.3.3 PREFERRED CUSTOMER OPTION BEYOND SECOND ANNIVERSARY. If BofA
pays the full amount of the License Fee, and BAC (or such
Affiliate of BAC as shall be permitted by the Subscription
Agreement) subscribes for and pays to 724 the full subscription
price for the 2000 Shares in accordance with the terms and
conditions of the Subscription Agreement, but BofA either does
not elect, or is deemed (pursuant to Section 2.3) not to have
elected, to enter into or extend the Continuing Alliance, BofA
may, from time to time on or prior to the fourth anniversary of
the end of the Continuing Alliance (or, if the Continuing
Alliance was not entered into, then on or prior to February 1,
2005, obtain a license for additional 724 Technology, and, upon
BofA's payment of all applicable license fees, the Licensed
Technology shall include, in addition to all components
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previously licensed hereunder such Upgrades and new 724
Technology developed and made generally available to 724's
customers in respect of which such additional license fees have
been paid. 724 shall determine the license fees for said
Upgrades and new 724 Technology based on its list prices (no
discount from standard rates) and the other terms of such license
shall be the same for BofA as apply to 724's customers,
generally, except that BofA shall be entitled to a source-code
(rather than object code, which is expected to be the general
case) license.
2.4 BOFA COMMITMENT. BofA acknowledges and agrees that it has committed to
working with 724 towards achieving the Deliverables, and unconditionally
agrees to pay the non-refundable License Fee in accordance with the terms
of Section 3.1 hereof, unless this Agreement terminates in accordance
with Section 6.1 (Business Termination). Notwithstanding the forgoing,
the License Fee Holdback which is attributed to the acceptance of the
Deliverables shall be subject to the terms and conditions of Section 2.14
(Acceptance).
2.5 MAINTENANCE AND SUPPORT AGREEMENT. 724 will provide maintenance and
support services in respect of the Licensed Technology in accordance with
the Maintenance and Support Agreement, the form of which is attached
hereto as Schedule "D". The Services (as such term is defined in the
Maintenance and Support Agreement) will commence, and 724 may invoice the
Maintenance Fee, only after the first 724 Channel is delivered to (as
contemplated in Section 2.16 hereof) and accepted by BofA in accordance
with the acceptance testing procedure in Section 2.14 hereof.
2.6 CUSTOMER AND AFFILIATES LICENSE AGREEMENTS. Where BofA enters into a
sublicense pursuant to Section 2.1 hereof, BofA shall enter into license
agreements with Customers of BofA and Affiliates of BofA in a form
satisfactory to 724, acting reasonably, that: (i) protects the
Confidential Information of 724; (ii) restricts the use of the Licensed
Technology by the Affiliates, Customers of BofA and Customers of
Affiliates of BofA solely to that set out in Section 2.1(b);
(iii) restricts the number of copies of the relevant Licensed Technology
to that number of copies reasonably required for their own use and for
backup purposes, provided that all copyright notices and any other
proprietary notices are included; (iv) forbids the decompiling,
disassembly and reverse engineering of the Licensed Technology;
(v) requires that the Affiliates, Customers of BofA and Customers of
Affiliates of BofA comply with all export laws in respect of the Licensed
Technology; (vi) disclaims any liability on the part of 724 for damages,
liabilities, costs or expenses incurred or sustained by the Affiliates,
Customers of BofA and Customers of Affiliates of BofA in connection with,
or by virtue of, the use of the Licensed Technology; (vii) makes 724 a
third party beneficiary of such agreements for the purposes of giving 724
the benefit of such waivers and liabilities as well as the right to
protect the Intellectual Property Rights in the Licensed Technology and
the confidentiality and use of its Confidential Information; and (viii)
contains terms and conditions prescribed by third party licensors of
Third Party Materials that are delivered with or incorporated in the
Licensed Technology. BofA will provide the initial form of license
agreement referred to herein and, after 724 provides its approval, only
amendments thereto adverse to the interests of 724 or otherwise material
shall require further approval of 724. Terms and conditions that apply
to Third Party Materials may have to be approved by the third party
licensors of such materials. BofA shall cooperate with 724 and the
licensor of any Third
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Party Materials in enforcing their rights against the Affiliates,
Customers of BofA and Customers of Affiliates of BofA, including: (a)
taking such action as is reasonably necessary to enforce BofA's and its
Affiliates' agreements with such Persons; and (b) promptly notifying 724
upon becoming aware of any breach by any such Person of any right of 724
(whether provided for herein or otherwise) or of a licensor of Third
Party Materials, including any infringement of any Intellectual Property
Rights and any unauthorized disclosure or use of Confidential
Information.
Notwithstanding any provision of this Agreement to the contrary, the
parties acknowledge and agree that any agreement for 724's benefit that
is required to be obtained by BofA from persons who are merely its
Customers or merely Customers of Affiliates may be obtained in electronic
form (i.e. "click-through", "click-wrap" or "web-wrap") provided that:
(i) the agreements by or on behalf of BofA and/or its Affiliates
with such Customers concerning the products or services
incorporating or using the Licensed Technology are similarly
in electronic format; and
(ii) 724 is given the right to review and approve the form and
content of the portion of such electronic agreements relevant
to the Licensed Technology, such approval not to be
unreasonably withheld or delayed.
2.7 PROVISION OF LICENSED TECHNOLOGY AND BOFA FUNDED IMPROVEMENTS. Upon
request by BofA, 724 shall provide to BofA the following Licensed
Technology and BofA Funded Improvements:
(a) the source code version of any software included in the Licensed
Technology and BofA Funded Improvements, excluding any Third
Party Materials, in machine-readable form on machine-readable
storage. When compiled, such source code version will produce
the object code version of the software; and
(b) all applicable documentation and other explanatory materials in
724's possession, including any programmer's notes, technical or
otherwise, for the Licensed Technology and BofA Funded
Improvements, excluding Third Party Materials, as may be
reasonably required by BofA, that a competent computer programmer
possessing ordinary skills and experience would need to further
develop, maintain and operate the Licensed Technology or BofA
Funded Improvements, as the case may be, without further recourse
to 724 including, but not necessarily limited to, general
flow-charts, input and output layouts, field descriptions,
volumes and sort sequence, data dictionary, file layouts,
processing requirements and calculation formula and the details
of all algorithms.
Unless otherwise agreed between the Parties, 724 agrees to deliver to
BofA the then current version of the Licensed Technology (excluding Third
Party Materials that 724 does not have the right to distribute),
including the source code version of the Licensed Technology (excluding
Third Party Materials that 724 does not have the right to distribute) and
the corresponding object code version, upon BofA's reasonable request but
no less frequently than annually. In addition, 724 agrees to include
with such delivery a list of all Third Party Materials and Intellectual
Property Rights licensed by
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724 which are included in the Licensed Technology, other than general
software development tools.
2.8 OWNERSHIP OF LICENSED TECHNOLOGY AND RELATED INTELLECTUAL PROPERTY
RIGHTS. BofA acknowledges and agrees that the Licensed Technology and
all Intellectual Property Rights therein and 724's Confidential
Information are and shall at all times remain the exclusive property of
724 and its Affiliates and Subsidiaries and that no rights, title or
ownership interest of any kind whatsoever in the Intellectual Property
Rights therein, or any portion of same, except for the right to use as
specifically provided in Section 2.1 hereof, shall pass to BofA, its
Affiliates, Customers of BofA and Customers of Affiliates of BofA or any
other Person. 724 acknowledges and agrees that BofA shall have all
right, title and interest in and to any software or technology that BofA
independently develops to work with the Licensed Technology, provided
such software or technology does not constitute a Derivative Work and
provided that such software or technology does not infringe 724's
Intellectual Property. BofA shall reproduce all copyright and other
Intellectual Property Rights notices of 724, and the licensors of Third
Party Materials, with each copy of the Licensed Technology made by BofA
or products and services incorporating or using or accompanied by the
Licensed Technology and/or Third Party Materials.
2.9 BOFA REQUESTED IMPROVEMENTS. From time to time, BofA may request and/or
fund certain additional functionality (each is referred to as an
"IMPROVEMENT"). If BofA makes such a request, 724 will use commercially
reasonable efforts to accommodate BofA and may, at its option, charge
BofA either on a time and materials or project fee basis for the
development of such Improvements.
If BofA funds any Improvement (a "BOFA FUNDED IMPROVEMENT"), then:
(a) if such BofA Funded Improvement is a Derivative Work, 724 shall
own the Derivative Work, together with all Intellectual Property
Rights therein, and 724 hereby grants BofA a perpetual,
fully-paid, irrevocable, exclusive world-wide license to use,
reproduce, sublicense, market, perform, display and prepare
derivative works therefrom; and
(b) if such BofA Funded Improvement is not a Derivative Work, BofA
shall own the BofA Funded Improvement, and 724 hereby assigns to
BofA all of its right, title and interest therein, together with
all Intellectual Property Rights therein.
If 724 (either at the time of the initial request by BofA for the
Improvement or thereafter) determines that a BofA Funded Improvement
could be exploited by 724 in connection with its business and/or could be
licensed to one or more customers of 724, then 724 and BofA will
negotiate, acting in good faith, an agreement on mutually agreeable,
commercially reasonable terms pursuant to which BofA will:
(a) if the BofA Funded Improvement is a Derivative Work, waive the
exclusivity of the license by 724 to BofA of the BofA Funded
Improvement, or
(b) if the BofA Funded Improvement is not a Derivative Work, grant to
724 the right to exploit the BofA Funded Improvement.
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None of the fees stated in Section 3 of this Agreement or which are
stated in the Maintenance and Support Agreement are "BofA funding" within
the meaning of this Section 2.9.
2.10 WAIVER OF MORAL RIGHTS. 724 agrees to use commercially reasonable
efforts to cause any employee, permitted subcontractor or any other
person under 724's control who was involved in the development of the
Licensed Technology and BofA Funded Improvements, in such form as is
satisfactory to BofA, acting reasonably, to irrevocably waive in favour
of 724 any and all moral rights arising under the COPYRIGHT ACT (Canada)
as amended (or any successor legislation of similar force and effect) or
similar legislation in other applicable jurisdictions or at common law
that such individual, as author, has with respect to any copyrighted
works prepared by such individual that are included in the Licensed
Technology or BofA Funded Improvements.
2.11 THIRD PARTY MATERIALS. BofA acknowledges that certain Third Party
Materials may be required in order to develop, compile, use or operate
the Licensed Technology and BofA Funded Improvements, and agrees as
follows:
(a) BofA agrees that 724 may include Third Party Materials in the
Licensed Technology or BofA Funded Improvements with BofA's
consent (not to be unreasonably withheld or delayed) and at
BofA's expense, on terms agreeable to BofA, acting reasonably, if
required in connection with the development of or use of the
Licensed Technology or BofA Funded Improvements, as the case may
be;
(b) BofA shall cooperate with 724 to obtain the necessary licenses or
rights to use Third Party Materials used with the Licensed
Technology or BofA Funded Improvements, or included therein,
provided however that BofA will release 724 from any performance
or other obligations that 724 is unable to comply with as result
of BofA's election not to directly acquire a license or right to
use any Third Party Materials; and
(c) BofA shall: (i) comply with; (ii) cause its Affiliates, agents,
independent contractors and other Persons given access to the
Licensed Technology to comply with; (iii) use commercially
reasonable efforts to cause the Customers of BofA and the
Customers of its Affiliates, to comply with; and (iv) cooperate
with 724 and third party licensors by including in agreements
with its Affiliates, Customers of BofA and Customers of its
Affiliates and permitted sublicensees of the Licensed Technology
and BofA Funded Improvements and all other Persons given access
to the Licensed Technology, all terms and conditions specified by
each third party licensor relating to its Third Party Materials,
including restrictions on use of the Third Party Materials and
payment of any license, maintenance or other amounts (including
applicable taxes) specified by such third party licensor. BofA
will cooperate with 724 and the relevant third party licensors in
enforcing the rights of such licensors of Third Party Materials.
2.12 COMPLIANCE WITH LAWS. BofA understands that the Licensed Technology,
BofA Funded Improvements and Third Party Materials 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 the Licensed Technology, BofA Funded Improvements
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and Third Party Materials outside the United States of America and Canada
may be highly regulated. BofA shall fully comply, and cause its
Affiliates and permitted sublicensees of the Licensed Technology, BofA
Funded Improvements and Third Party Materials and all other Persons
(other than Persons who are merely Customers of BofA or of its
Affiliates) given access to the Licensed Technology to comply (or, in the
case of persons who are merely Customers of BofA or of its Affiliates, to
agree to comply) with all applicable export control and other relevant
laws and regulations of any applicable jurisdiction that apply to the
Licensed Technology and BofA Funded Improvements, including any Third
Party Materials that are used with the Licensed Technology and BofA
Funded Improvements. If any such Affiliate or other Person (other than
Persons who are merely Customers of BofA or of its Affiliates) fails to
comply with such laws, BofA shall fully indemnify and save harmless 724
in connection with any loss (including loss of profits) cost, expense,
damage or liability sustained, suffered or incurred in connection
therewith. Provided, however, that BofA will provide a similar indemnity
to 724 in the event that it fails to obtain for 724 from any particular
Customer restrictions required by this Section 2.12 as part of the type
of agreement contemplated by Sections 2.1, 2.2 and 2.6 or if BofA or its
Affiliates discloses, distributes or makes available to the Customers the
source code or any other component of the Licensed Technology that is
part of 724's Confidential Information. For the purposes of Article IV,
a claim for any such indemnity shall be a "724 Third Party Claim".
2.13 TECHNOLOGY DEVELOPMENT PLANS. Each of the Parties agrees that the 1999
Technology Plan (a copy of which is attached as Schedule "B" hereto)
specifies the initial set of Deliverables and the performance
specifications, delivery dates and the prorata portion of the License Fee
Holdback attributable to each Deliverable. The Parties shall use their
commercially reasonable efforts to work together to develop, by no later
than the First Anniversary, a mutually agreeable 2000 Technology Plan
(including the Deliverables generally described in Schedule "C" hereto),
which will specify the Deliverables to be delivered prior to the Second
Anniversary, including the functional and performance specifications,
delivery dates and the prorata portion of the License Fee Holdback
attributable to each such Deliverable, and which, when settled in final
form and initialled by the parties, shall be attached hereto and made a
part hereof a replacement for Schedule "C". The aggregate of the prorata
amounts of the License Fee Holdback attributable to each of the 1999
Development Plan and the 2000 Development Plan shall be one half of the
total License Fee Holdback. The Parties will develop mutually agreed
detailed functional and performance specifications for each subsequent
Improvement. The specifications shall be the basis for the Acceptance
Tests called for in Section 2.14.
The Parties acknowledge that the Parties' development plans and
performance requirements are subject to change from time to time, and, in
order to accommodate such changes, the Parties shall work together in the
event that the change in their development plans or performance
requirements results in a required change in either the 1999 Technology
Plan or the 2000 Technology Plan. If a Party wishes to change a
Deliverable, or the scheduled delivery date for such Deliverable, it
shall promptly notify the other Party of such change. The Parties shall
then work together, acting reasonably, to make mutually agreeable changes
to the relevant technology plan, and shall reapportion the prorata
License Fee Holdback among the remaining Deliverables in the relevant
technology development plan. If any such change accelerates the delivery
date of a Deliverable or results in a significant change in the scope,
requirements or amount of
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effort required to be expended by 724, 724 will be permitted, upon BofA's
prior written consent, to charge BofA on either a time and materials
basis at 724's then standard current rates (the current rates are
specified in Schedule "A" to the Maintenance and Support Agreement) or a
fixed price project fee.
The Parties further acknowledge that there may be certain factors beyond
the control of 724 that could frustrate the development, delivery or
testing of any Deliverable (a "Dependency"), including interoperability
issues arising in BofA's systems and third party facilities providers'
systems. If a Dependency causes a Deliverable to be delayed, the Parties
will work together in good faith to complete the Deliverable as soon as
practicably possible (subject to any extra charges that may result and be
paid in accordance with the immediately preceding paragraph). The
Parties shall, in the event of any such delay, negotiate in good faith an
amendment to the 1999 Development Plan and/or the 2000 Development Plan
for the purpose of developing new or additional Deliverables against
which to apply the License Fee Holdback amount allocated to the
Deliverable that was frustrated. In the event that no such agreement is
reached by the Parties acting reasonably and in good faith, BofA shall
not be obligated to pay the License Fee Holdback amount in question.
2.14 ACCEPTANCE TESTING.
2.14.1 Each Deliverable and BofA Funded Improvement or any Upgrade or
Update delivered hereunder (for purposes of this Section 2.14
only, collectively referred to as a "Deliverable") will be
subjected to acceptance testing by BofA during an Acceptance Test
Period consisting of not more than 60 days from the date of
delivery of the Deliverable to BofA. "Acceptance Test" means a
test which can reliably and consistently confirm that a
Deliverable substantially meets the functional and performance
specification (a "Specification") prepared in accordance with
Section 2.13. In this regard, BofA shall, in conjunction with
724, establish a "Test Plan" to take place during the particular
Acceptance test Period, which Test Plan involves numerous test
runs or other verification of the Deliverable. BofA covenants
and agrees to use commercially reasonable efforts to notify 724
of Critical or Major defects (as contemplated in Section 2.14.4)
as early as possible throughout the Acceptance Test Period and
shall use commercially reasonable efforts to complete as much of
the Test Plan for the particular Acceptance Test in order that
724 obtain as much information concerning the status of the
Deliverable as possible from the particular Acceptance Test. An
Acceptance Test Period shall be considered to be completed when
the Test Plan for the particular Acceptance Test Period has been
completed or the Test Plan has had to be abandoned as a result of
Critical or Major (as defined below) errors which make further
testing of the Deliverable meaningless or which would yield
unreliable test results.
2.14.2 A Deliverable will be "accepted" if BofA provides written notice
that the Deliverable has passed the Acceptance Test, or will be
deemed to have been "accepted" if:
(a) BofA does not notify 724 within the initial or, if applicable,
any subsequent Acceptance Test Period that it does not accept the
Deliverable;
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(b) BofA does not notify 724 during the Acceptance Test Period of
defects or problems constituting non-compliance of the
Deliverable with its Specification; or
(c) BofA uses the Deliverable for commercial production purposes or
otherwise uses the Deliverable on other than a "testing" basis
for a period of five Business Days.
2.14.3 Acceptance will be effective on the earliest of: (i) the date
upon which 724 receives notice of acceptance; (ii) the last day
of the Acceptance Test Period (provided that notice of the
failure of the Acceptance Test or of defects or problems has not
been delivered prior to the end of the Acceptance Test Period)
and (iii) the fifth Business Day after the day upon which BofA
first uses the Deliverable for commercial production purposes or
otherwise uses the Deliverable on other than a "testing" basis;
and that day will be deemed to be the "Acceptance Date".
2.14.4 If all or part of the Acceptance Test indicates that the
Deliverable does not comply with its Specification, BofA will
notify 724 of the particular failure and will, acting reasonably,
classify the defects or problems encountered as follows:
(a) CRITICAL - a failure substantially preventing the useful
operation of the Deliverable;
(b) MAJOR - a failure which does not preclude the useful
operation of the Deliverable, but substantially reduces its
effectiveness or which materially and adversely affects the
performance or functionality of the Deliverable from the
perspective of the Customer; or
(c) MINOR - a defect or problem other than a Critical or Major
problem.
2.14.5 Upon receipt of notification of a Critical or Major problem, 724
will use commercially reasonable efforts to correct such Critical
or Major problem (in conjunction with all other Critical or Major
problems identified by the particular Acceptance Test) within the
time period determined jointly by BofA and 724, acting reasonably
and having regard to the nature of such Critical or Major
problem(s). Under no circumstances will such correction period
extend beyond 30 days from the end of the particular Acceptance
Test Period.
When the Critical and Major defects identified by a particular
Acceptance Test have been corrected, (or if the aforesaid 30 day
period has expired and certain of such defects remain to be
corrected, then, in any event), 724 will notify BofA of the state
of the corrections and BofA may conduct another Acceptance Test
with respect to those components of the Deliverable that 724
considers have been sufficiently corrected to justify a further
Acceptance Test at that time for a period of up to 60 days,
provided that BofA shall use its reasonable efforts to complete
the Test Plan for that further Acceptance Test as soon as
possible. BofA covenants and agrees to use commercially
reasonable efforts to notify 724 of Critical or Major defects as
early as possible throughout such further Acceptance Test Period.
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2.14.6 In the event of a Minor problem, BofA will continue the
Acceptance Test, provided that 724 will use commercially
reasonable efforts to correct such Minor problem promptly upon
receipt of notification of such Minor problem.
2.14.7 If the particular Deliverable has not been accepted or deemed to
be accepted after the conclusion of four Acceptance Test Periods
for that Deliverable (or if 724 has indicated that it cannot
remedy a particular Critical or Major problem identified during
the third Acceptance Test Period for that Deliverable within 30
days of the end of such third Acceptance Test Period), BofA will
notify 724 of that failure (and the nature thereof) and may
exercise one of the following options (which shall constitute its
sole remedy):
(a) OPTION ONE: Repeat the process described in Section
2.14.5; or
(b) OPTION TWO:
(i) except as provided in Section 2.14.7(b)(ii), BofA
shall not be required to pay that part of the
License Fee Holdback, if any, allocated to the
particular Deliverable in accordance with Schedule
"B" and Schedule "C" hereto; and
(ii) in respect of any BofA Funded Improvements or any
Upgrade, to reject the Deliverable, in which case
BofA shall not be required to pay for such
Deliverable and shall receive a refund of all
amounts specifically paid to 724 in respect of the
rejected Deliverable; 724 shall retain all rights in
the rejected Deliverable and no right, title or
interest therein shall transfer to BofA.
2.14.8 724's services for correcting defects or problems in a
Deliverable identified during the Acceptance Test Period shall be
provided free of charge, subject to BofA paying any additional
amount for changes in Deliverables, as specified in Section 2.13.
2.14.9 Notwithstanding anything to the contrary in this Section, 724 is
not responsible for the failure of any BofA or third party
software or system (other than Third Party Materials) to
integrate with any Deliverable or the Deliverable's ability to be
incorporated therein, provided that Deliverable complies in all
material respects with the interface specifications relating
thereto.
2.14.10 Where failure of any underlying communications infrastructure,
Third Party Material, or a third party obligation is impeding the
Acceptance Test, either Party may designate the Acceptance Test
as "on hold" pending corrections thereof; provided, however, that
if such failure could be remedied by one of the Parties using
their commercially reasonable efforts, then such Party shall not
be entitled to put such Acceptance Test procedure "on hold".
2.15 PROJECT MANAGEMENT. Each of the Parties agrees to designate a project
manager from their respective companies who shall have the authority to
bind the Party that he/she represents, with respect to the matters
indicated in the immediately following sentence, and who shall have the
authority to consent to any action on behalf of the Party that
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he/she represents; with respect to the matters indicated in the
immediately following sentence, provided, however, that the project
manager shall not have the authority to waive any rights of the Parties
herein or at law or to effect any amendment to the terms hereof or to
make any determination or concession as to ownership of Intellectual
Property Rights. These individuals will, in accordance with the spirit
of this Agreement, use reasonable efforts in co-ordinating the continuing
development of objectives, related scheduling and resource allocation in
respect of the development and provision of the Deliverables under the
1999 Development Plan and the 2000 Development Plan and jointly
supervise the Acceptance Testing process. All notices required to be
delivered hereunder shall be copied to the project managers.
2.16 DELIVERY. Any and all supplies of property made pursuant to this
Agreement shall be delivered or made available to BofA and Affiliates of
BofA outside of Canada. Any provision of tangible personal property
pursuant to this Agreement shall be made f.o.b. the premises of BofA, the
United States of America. Any other provision of property made pursuant
to this Agreement shall be upon the transfer to the system of and receipt
by BofA or the Affiliate of BofA, in each case outside of Canada. BofA
shall have the right to require delivery by means of electronic
transmission subject to the following provisions:
(i) BofA shall provide and designate to 724 a secure and FTP site for
the transmission; and
(ii) BofA shall assume full responsibility for any interception,
breach of confidentiality, theft or other unauthorized disclosure
or use of 724's Confidential Information arising or resulting
from such electronic transmission, provided that 724
substantially complies with the reasonable information security
specifications for the transmission that BofA proposes.
ARTICLE III
FEES & PAYMENT TERMS
3.1 FEES AND CHARGES. BofA agrees to pay the following charges as follows:
(a) LICENSE FEE. The License Fee shall be paid as follows:
(i) $***** on execution of this Agreement;
(ii) $***** on February 1, 2000;
(iii) $***** on each of June 1, 1999, July 1, 1999,
October 1, 1999, April 1, 2000, July 1, 2000, and
October 1, 2000; and
the balance of the License fee, being the License Fee Holdback,
shall be paid, at the times and in the amounts specified in the
1999 Development Plan and the 2000 Development Plan, upon
acceptance, or deemed acceptance, of the Deliverables referred to
therein.
[****]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.
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(b) CONTINUING ALLIANCE FEE. BofA shall pay the Continuing Alliance
Fee in accordance with the terms and conditions specified in
Section 2.3 hereof if it elects to commence or extend the
Continuing Alliance.
(c) PREFERRED CUSTOMER LICENSE FEE. BofA shall pay the license fee
in accordance with the terms and conditions specified in Section
2.3.3 hereof if BofA exercises its right at any time to license
additional technology from 724 as part of the Licensed Technology
in accordance with the terms and conditions of such Section.
(d) THIRD PARTY MATERIALS. BofA shall pay all amounts due to 724
and/or licensors of Third Party Materials that are included in or
used with the Licensed Technology that BofA consents to in
accordance with Section 2.11 hereof.
(e) TRAVEL AND COMMUNICATION EXPENSES. If BofA requests that 724
provide, or if 724 acting reasonably determines it advisable to
provide, services at any location outside of Metropolitan
Toronto, BofA shall reimburse 724 for all reasonable travel
expenses (including all reasonable communications,
transportation, lodging, meal and other out of pocket expenses)
incurred by 724, at 724's cost (including the amount of all
taxes, imposts, levies, duties or similar charges for which 724
is not entitled under the relevant legislation to currently claim
a credit, rebate, refund, set-off or other recovery). All
charges payable under this subparagraph (e) shall be invoiced
monthly for expenses incurred by 724 in the prior one month
period and shall be payable net 30 days from the date of the
invoice.
3.2 INVOICES. Unless otherwise specified under this Agreement, 724 shall
invoice BofA for any amount payable hereunder no earlier than 30 days in
advance of the date that such payment is due. The terms of each such
invoice shall be net 30 days.
3.3 TAXES.
3.3.1 In addition to any and all fees, levies, imposts, reimbursements,
expenses and other charges hereunder, BofA shall pay to 724 all
taxes, duties, levies, imposts and other such assessments or
charges which may be assessed, levied or imposed, payable or
remittable pursuant to the relevant tax legislation in connection
with this license of the Licensed Technology or the sublicenses
contemplated herein and any other fees, levies, imposts and other
charges in connection with any other supply, provision, or other
transfer contemplated by this Agreement (for the purposes of this
Section 3.3, collectively referred to as "TRANSFER TAXES"),
except taxes on 724's income or capital, and any reference to a
payment by BofA, an Affiliate or sublicensee thereof or other
Person to or for the benefit of 724 hereunder shall be read to
include the payment of any and all such Transfer Taxes.
3.3.2 Without limiting the generality of the foregoing, all payments by
BofA under this Agreement (excluding payments of Transfer Taxes)
shall be made free and clear of, and without deduction for, any
and all present or future taxes, levies, imposts, deductions,
charges or withholdings imposed on or with respect to such
payments, and all interest, penalties and other liabilities with
respect thereto (all such taxes,
-22-
levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Amounts"). If
BofA 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 shall be increased by BofA as may be
necessary so that after making all required deductions
(including deductions applicable to additional sums
payable under this Section 3.3.2(i)), 724 receives an
amount equal to the sum it would have received had no
deduction been made;
(ii) BofA shall make such deductions;
(iii) BofA 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 referred to in the preceding paragraph to the
relevant taxation authority, BofA will furnish to 724
the original or a certified copy of any receipt furnished
by the relevant taxing authority evidencing payment
thereof.
3.3.3 For greater certainty, no such additional amount shall be payable
by BofA to the extent (but only to the extent) that no deduction,
or withholding from the payment to 724 is required by the
applicable tax legislation. For example, it is the parties'
understanding that where 724 otherwise becomes liable for the
payment of U.S. income taxes on a particular payment pursuant to
this Agreement by reason of it having a sufficient connection to
a U.S. taxing jurisdiction for such U.S. jurisdiction to impose
domestic U.S. tax on such payment (such as by 724 maintaining a
permanent establishment in the U.S. to which the income arising
pursuant to this Agreement is allocated or effectively connected
for U.S. tax purposes) other than a connection based merely on
the entitlement of 724 to the payments to be made under this
Agreement and the Maintenance and Support Agreement, then no
deduction or withholding requirement would be imposed by U.S.
taxation legislation.
3.3.4 In this regard, the parties acknowledge and agree that BofA will
be obligated to withhold from payments to 724 and remit to the
applicable U.S. taxation authorities amounts in respect of U.S.
tax levied on the payments to 724, and therefore would be
obligated to pay the additional amounts contemplated by Section
3.3.2, unless certain certificates, documents or other evidence
are delivered to BofA by 724, as required by the Internal Revenue
Code or Treasury Regulations issued pursuant thereto, including,
without limitation, Internal Revenue Service Form W-8ECI, Form
W-8BEN (see. e.g. Item 10 in Part II) and any other certificate
or statement of exemption required by Treasury Regulation
Sections 1.1441-1(e) and 1.1441-4(a) or Section 1.1441-6(b) or
any subsequent version thereof, property completed and duly
executed by 724 establishing that the payment is: (i) not subject
to withholding under the Internal Revenue Code because such
payment is effectively connected with the conduct by 724 of a
trade or business in the United States; or (ii) totally exempt
from United States tax
-23-
under a provision of an applicable tax treaty. For greater
certainty, this provision shall not be construed so as to shift
the burden of sales, use, excise, VAT and similar taxes from
BofA to 724, even if 724 carries on business in the United
States or maintains a U.S. permanent establishment.
3.3.5 724 covenants and agrees to act in good faith in connection with
requests by BofA for information and certificates or other
written statements (as contemplated above) reasonably required by
it in order to determine whether it has an obligation with
respect to any payment hereunder to deduct or withhold amounts
for purposes of remitting them to the relevant taxation
authorities and, therefore, an associated obligation to pay the
additional amounts contemplated by Section 3.3.2 above.
Specifically, 724 covenants and agrees that if it is able to
truthfully and in good conscience deliver the required statements
or certificates obviating the need for BofA to deduct or withhold
amounts from the payments contemplated hereunder, it shall do so
upon request by BofA and on a timely basis having regard to
BofA's statutory obligations.
3.3.6 Without duplication of the payments to be made pursuant to
Sections 3.3.7 and 3.3.8, in the event that 724 shall be entitled
to receive from the applicable U.S. taxation authorities a refund
of tax paid or payable by it (a "Tax Refund") with respect to or
calculated with reference to the deduction or withholding giving
rise to the payment of the additional amount as contemplated
above in Section 3.3.2(i), 724 shall use reasonable efforts to
obtain the Tax Refund, to the extent it can do so without
prejudice to the retention of the amount of such Tax Refund, and,
upon receipt of such Tax Refund, pay or cause to be paid to BofA
such amount as 724 shall have concluded, acting reasonably, to be
the after-tax value to it of the Tax Refund which is attributable
to the relevant deduction, withholding or tax payable.
3.3.7 In addition, subject to Section 3.3.8 and without duplication of
the payments to be made pursuant to Section 3.3.6, if 724 shall
obtain the benefit of a tax credit from the applicable Canadian
or United States tax authorities with respect to amounts deducted
or withheld by BofA from payments due hereunder and remitted on
behalf of 724 to the applicable U.S. taxation authority (and in
respect of which 724 shall have received the additional amount
contemplated by Section 3.3.2(i)), then, upon receipt of the
benefit of the tax credit (through offsetting tax liability or
through refund), 724 shall, subject to Section 3.3.8, pay or
cause to be paid to BofA such amount as 724 shall have concluded,
acting reasonably, to be the after-tax value to it of the tax
credit which is attributable to the relevant deduction,
withholding or tax, to reimburse BofA for all or a portion of the
additional amount that had been paid to 724.
3.3.8 In particular, if 724 shall receive the benefit of a foreign tax
credit under its Canadian federal or provincial income tax
returns in respect of an amount withheld or deducted at source by
BofA and remitted to the applicable U.S. taxation authority, the
procedure outlined in Section 3.3.7 shall be applicable provided,
however, that the amount of the tax credit shall first be
applied:
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(i) to reimburse 724 for the additional Canadian (including
federal and provincial) income and other taxes (or loss
of tax shelter - such as the reduction of non-capital
tax loss carryforwards or utilization of tax credits
otherwise available to shelter other current or future
income) that it incurred in respect of the taxation of
additional amounts paid pursuant to Section 3.3.2(i) as
part of 724's world-wide income. For these purposes, the
amount of additional tax burden incurred by 724 shall be
deemed to be that amount equal to the product obtained
when the Tax Rate is multiplied by the aggregate sum of
such additional amounts received or receivable by 724 for
all taxation periods (or parts thereof) during the term
of this Agreement up to the day on which the calculation
is being made; and
(ii) the balance of any such tax credit shall be applied as a
refund to BofA in accordance with the provisions of
Section 3.3.7 MUTATIS MUTANDIS. For greater certainty,
however, tax credits and tax refunds shall be allocated
solely to the particular deduction/withholding by BofA
and the additional amounts paid by BofA pursuant to
Section 3.3.2(i) to which they relate.
3.3.9 Both parties covenant and agree to file or re-file, as
applicable, all relevant tax returns and information returns
necessary to reflect such payment by 724 to BofA as a full or
partial refund, as the case may be, of the additional Amount
previously received by 724.
3.3.10 In the event that a particular taxation authority having
jurisdiction shall object, assess, reassess or appeal a position
taken by the parties and should such position be upheld or
appeals by the relevant party abandoned, the parties undertake to
readjust the payments between them, acting reasonably and in good
faith.
3.3.11 If BofA reasonably believes that 724 is entitled to a Tax Refund
as described in Section 3.3.6 or a tax credit as described in
Section 3.3.7 in respect of which 724 has not applied, claimed or
deducted in computing its income, or if 724 has so applied for,
claimed or deducted, such application, claim or deduction has
been denied by the relevant taxing authority, then 724 agrees to
(upon receipt of written notice from BofA as to its reasonable
belief): (A) apply for, claim or deduct such amount not yet
applied for, claimed or deducted, if applicable; or (B) object
and, if necessary, appeal such denial (where permitted under the
relevant tax legislation) and pursue such objection and appeal in
good faith provided: (i) that neither applying for, claiming or
deducting the Tax Refund or tax credit, or objecting or appealing
the denial of the Tax Refund or tax credit shall in 724's view,
materially prejudice 724's past, present or future tax position;
and (ii) BofA agrees that such objection and appeals shall be at
its sole cost and expense, including all legal and accounting
fees and disbursements and other out-of-pocket costs arising as a
result of objecting or appealing the denial of the Tax Refund or
tax credit.
3.3.12 Provided however, that notwithstanding anything contained herein
to the contrary, 724 shall be entitled to arrange its tax affairs
in whatever manner it thinks fit and shall not be required to
disclose to BofA any information regarding its tax affairs or tax
calculations (except that BofA shall be entitled to review 724's
tax returns
-25-
for purposes of verifying the parties' respective rights and
obligations pursuant to this Section 3.3).
3.4 LATE FEES. If BofA fails to make payment of the amounts payable to
724 in accordance with Section 3.1 and Section 3.3 above or any other
amount payable pursuant to this Agreement or any of the sublicenses
contemplated herein, or any portion or portions thereof, BofA shall
pay interest to 724 on such overdue amount in the same currency as
such overdue payment is payable both before and after demand, default,
and judgment until actual payment in full at a rate per annum equal to
***** percent (****%) calculated on a three hundred and sixty-five (365)
day year and payable daily in arrears with interest on overdue
interest at the same said rate.
3.5 REPRESENTATIONS AND WARRANTIES OF BOFA. Both now and on a continuing
basis, BofA represents and warrants to 724 and acknowledges that 724 is
relying upon the following representations and warranties:
(a) BofA is a non-resident of Canada as that term is defined in the
ETA and the INCOME TAX ACT (Canada);
(b) BofA is not registered pursuant to subdivision d of Part IX of
the ETA;
(c) BAC is a non-resident of Canada as that term is defined in the
ETA and the INCOME TAX ACT (Canada); and
(d) BAC is not registered pursuant to subdivision d of Part IX of the
ETA.
BofA covenants and agrees to forthwith provide 724 notice of any change
that may affect these representations and warranties.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND INDEMNITIES
4.1 REPRESENTATIONS AND WARRANTIES OF 724. 724 represents and warrants to
BofA as set out in the following Subsections of this Section, both as at
the date hereof and on a continuing basis, and acknowledges that BofA is
relying upon such representations and warranties in entering into this
Agreement. 724 shall, as soon as practicable following it becoming aware
of any fact, matter or event arising after the date hereof which results
in any of the following representations becoming incorrect in a material
respect, provide notice of same to BofA.
4.1.1 OWNERSHIP. Except in respect of the Third Party Materials, 724
is the owner or licensor of the Intellectual Property Rights in
the Licensed Technology and has the right to grant the licenses
in Section 2.1 hereof.
4.1.2 THIRD PARTY MATERIALS. Unless 724 notifies BofA that it must
obtain a separate license to use Third Party Materials and/or pay
a license fee or otherwise comply with specified requirements
imposed on 724 by the third party owner or licensor of the Third
Party Materials, 724 has obtained all licenses, clearances,
assignments and waivers in respect of any and all the Third Party
Materials 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.
-26-
associated Intellectual Property Rights (other than patent
rights) constituting part of or distributed by 724 with the
Licensed Technology necessary (other than patent rights) to
permit BofA to use the Licensed Technology in the manner
contemplated by this Agreement.
4.1.3 INFRINGEMENTS BY 724. Except in respect of any Third Party
Materials,
(i) the Licensed Technology does not infringe on any
Intellectual Property Rights, other than patent rights,
of any third party;
(ii) there is no pending or, to 724's knowledge, threatened
suit, proceeding, claim, demand, action or investigation
of any nature or kind against 724 relating to the
Licensed Technology or the manner it is used in respect
of its business; and
(iii) there is no claim of which 724 has received notice
(formal or informal) or is otherwise aware that any
products, software or services manufactured, produced,
used or sold by 724 in connection with the Licensed
Technology, or any process, method, packaging,
advertising, or material that 724 employs in the
manufacture, marketing, licensing or sale of any such
product, software or service in connection with the
Licensed Technology, or the use of any of the Licensed
Technology in the manner contemplated by this Agreement
breaches, violates, infringes or interferes with any
rights of any Person or requires payment for the use of
any copyright, trade xxxx or trade secret, know-how or
technology of another Person or any other Intellectual
Property Right of any Person.
4.1.4 NO CONFLICTING AGREEMENTS. 724 is not under and will not assume
any contractual obligation that conflicts with its obligations or
the rights granted in this Agreement.
4.1.5 VIRUS WARRANTY. Except in respect of Third Party Materials, 724
warrants that it will use all commercially reasonable efforts to
ensure that all Licensed Technology and BofA Funded Improvements
delivered to BofA are, at the time of shipment, free of any known
computer software viruses.
4.1.6 DISABLING DEVICES. Except in respect of Third Party Materials,
neither the Licensed Technology nor the BofA Funded Improvements
contain any back door, time bomb, worm, Trojan horse, software
lock, drop-dead device or other software routine designed to
disable the Licensed Technology or any BofA Funded Improvement
or damage, alter, erase or harm BofA's data, systems or software.
724 will use commercially reasonable efforts to have included a similar
provision in each custom license agreement with any provider of Third
Party Materials.
-27-
4.2 YEAR 2000 COMPLIANCE.
(i) 724 represents and warrants that the Licensed Technology
and BofA Funded Improvements will be in Year 2000
Compliance, provided that all Third Party Materials are
also in Year 2000 Compliance.
(ii) "YEAR 2000 COMPLIANCE" means before, during and after
January 1, 2000:
(a) all dates receivable by the Licensed Technology and BofA Funded
Improvements (input data) will require a century indicator, all
dates produced by the Licensed Technology and BofA Funded
Improvements (output or results) will include a century
indicator;
(b) date calculations involving either a single century or multiple
centuries will neither cause an abnormal ending nor generate
incorrect results;
(c) when sorting by date, all records will be sorted in accurate
sequence; and when the date is used as a key, records will be
read and written in accurate sequence;
(d) leap years will be determined by the following standard:
(I) if the year is evenly divisible by 4, it is a leap year,
except for years ending in 00; and
(II) a year ending in 00 is a leap year if it is evenly
divisible by 400; and
(e) in the case of hardware/equipment, the clock and calendar will
advance correctly to year 2000 and beyond without intervention.
(iii) Before delivery of the Licensed Technology and BofA Funded
Improvements to BofA, 724 will:
(a) work with the group within BofA that is responsible
for testing Year 2000 Compliance to test whether the
Licensed Technology and BofA Funded Improvements are
in Year 2000 Compliance in accordance with BofA's
standards and procedures relating to such tests; and
(b) provide BofA with a copy of any compliance testing
results promptly upon the request of BofA.
(iv) 724 shall, upon receipt of notice from BofA referenced in
paragraph (v) in this Section 4.2 or when 724 otherwise
becomes aware of a condition or event that would evidence a
breach of the representation and warranty given by 724 in
paragraph (i) of this Section 4.2, use its best efforts to
promptly repair and correct the Licensed Technology and
BofA Funded Improvements, and deliver such repair or
correction to BofA, in order to make the Licensed
Technology and BofA Funded Improvements be in Year 2000
Compliance, except that 724's obligation to repair and
correct
-28-
any Third Party Materials included in the Licensed
Technology and BofA Funded Improvements that is not in
Year 2000 Compliance is limited to 724 using commercially
reasonable efforts to work with the supplier of the Third
Party Material to cause such supplier to make such Third
Party Material be in Year 2000 Compliance. If 724 is
unable to cause a third party to make its Third Party
Material in Year 2000 Compliance, 724 will have the option
to replace such Third Party Material.
(v) BofA shall promptly notify 724 of any conditions or events
that would evidence a breach of the representation and
warranty given by 724 in paragraph (i) of this Section 4.2
and provide its reasonable assistance to 724 in order to
permit 724 to meet its obligation under paragraph (iv) of
this Section 4.2.
(vi) Time shall be of the essence for the performance of each
Party's obligations under this Section 4.2.
(vii) The obligations of repair and correction contained in this
Section 4.2 shall be the sole remedies of BofA or its
Affiliates in connection with 724's obligations contained
in this Section 4.2.
4.3 CONTRACTUAL RESPONSIBILITY AND INDEMNIFICATION OBLIGATIONS OF 724 IN
FAVOUR OF BOFA.
4.3.1 DIRECT DAMAGES. 724 covenants and agrees to pay, be liable for,
compensate and save harmless each of BofA, its Affiliates and
their respective directors, officers, employees and agents
(except for Persons who are merely Customers of BofA or of an
Affiliate of BofA, unless an indemnification obligation is
specifically provided for herein) (collectively, the "BOFA
GROUP") from and against any Claim in respect of, as a result of,
or arising out of, the following matters (a "DIRECT CLAIM"):
(i) any non-fulfillment or non-performance of any covenant or
agreement by 724 (or those for whom it is responsible
herein or at law) contained in this Agreement or in any
other agreement, certificate, document or instrument given
pursuant to this Agreement (collectively, the "ANCILLARY
DOCUMENTS"); and
(ii) any inaccuracy in or breach of any representation or
warranty of 724 contained in this Agreement or in any
Ancillary Document.
Provided, however, that the Direct Claims which may be asserted
by the BofA Group pursuant to this Section 4.3.1 shall not
include any Claim which originates from any Person who is not
itself a member of the BofA Group (a "BOFA THIRD PARTY CLAIM"),
which BofA Third Party Claims are the subject matter of
Section 4.3.2 hereof; and provided further that the Direct Claims
contemplated by this Section 4.3.1 shall also not include any
Claims which constitute an IP Infringement Claim (as defined in
and which are the subject matter of Section 4.3.3 hereof).
-29-
For greater certainty, the provisions of this Section 4.3.1 are
not to be construed as in any way limiting the remedies available
to BofA in the event of a breach of this Agreement on the part of
724, but rather a restatement of 724's responsibility in this
regard and a confirmation of non-parties entitled to the benefit
of 724's covenants and representations.
With respect to any Claim pursuant to this Section 4.3.1, 724
shall have a right to mitigate its damage and cure any such Claim
in accordance with the provisions of Section 4.6.4 MUTATIS
MUTANDIS and no Claim may be advanced by BofA in connection with
the subject matter of this Section until 724 shall have had a
reasonable opportunity to so mitigate its damages or cure the
subject matter of the Claim.
4.3.2 INDIRECT DAMAGES. 724 covenants and agrees to be liable for,
compensate, indemnify and save harmless each member of the BofA
Group from and against the following BofA Third Party Claims
(except to the extent that the substance of any such BofA Third
Party Claim is an IP Infringement Claim, in which event the Claim
shall be governed by the provisions of Section 4.3.3 hereof):
(i) Claims made by Affiliates of BofA, Customers of BofA and
Customers of BofA's Affiliates against BofA or a member
of the BofA Group, provided that the direct and
proximate cause of the Claim (as established in a final
and non-appealable judgement of a court having
jurisdiction in the matter) is the Gross Negligence
(which the parties deem to mean, "the want of even scant
care or an extreme departure from the ordinary standard
of conduct"), recklessness or willful misconduct of 724
or its directors, officers, employees and independent
contractors in the performance of 724's obligations
herein. For greater certainty and as provided below,
the maximum aggregate liability of 724 pursuant to
Sections 4.3.1 and 4.3.2 during the entire term of this
Agreement (and whether made in one or more Claims) shall
be the lesser of: (I) $****; and (II) the aggregate
amount of license fees previously received by 724 from
BofA pursuant to the terms of this Agreement.
4.3.3 IP INFRINGEMENT CLAIMS. 724 covenants and agrees to be liable
for, compensate, indemnify and save harmless the BofA Group from
and against any Claim in respect of, as a result of, or arising
out of, the Licensed Technology or any of the BofA Funded
Improvements infringing, or being alleged to infringe, any
Intellectual Property Right of any Person (an "IP Infringement
Claim").
With respect to any Claim pursuant to this Section 4.3.3, 724
shall have a right to mitigate its damage and cure any such Claim
in accordance with the provisions of Section 4.6.4, MUTATIS
MUTANDIS, and no Claim may be advanced by BofA in connection with
the subject matter of this Section until 724 shall have had a
reasonable opportunity to so mitigate its damages or cure the
subject matter of the Claim.
[****]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.
-30-
4.4 CONTRACTUAL RESPONSIBILITY AND INDEMNIFICATION OBLIGATIONS OF BOFA TO 724
4.4.1 DIRECT DAMAGES. BofA covenants and agrees to pay, be liable for,
compensate and save harmless 724, its Affiliates and their
respective directors, officers, employees and agents
(collectively, the "724 Group") from and against any Claim which
they may pay, sustain, suffer or incur in respect of, as a result
of or arising out of the following matters:
(i) any non-fulfillment or non-performance of any covenant or
agreement by BofA (or those for whom it is responsible
herein or at law) contained in this Agreement or in any
Ancillary Document; and
(ii) any inaccuracy or breach of any representation or warranty
of BofA contained in this Agreement or in any Ancillary
Document.
Provided, however, that the Direct Claims which may be asserted
by the 724 Group pursuant to this Section 4.4.1 shall not include
any Claim which originates from any Person who is not itself a
member of the 724 Group (a "724 THIRD PARTY CLAIM"), which 724
Third Party Claims are the subject matter of Section 4.4.2
hereof; and provided further that the Direct Claims contemplated
by this Section 4.4.1 shall also not include any Claims which
constitute a Breach of Confidentiality Claim (as defined in and
which are the subject matter of Section 4.4.3 hereof).
For greater certainty, the provisions of this Section 4.4.1 are
not to be construed as in any way limiting the remedies available
to 724 in the event of a breach of this Agreement on the part of
BofA, but rather constitutes a restatement of BofA's
responsibility in this regard and a confirmation of non-parties
entitled to the benefit of BofA's covenants and representations.
4.4.2 INDIRECT DAMAGES. BofA covenants and agrees to be liable for,
compensate, indemnify and save harmless each member of the 724
Group from and against any Claim in respect of, as a result of,
or arising out of the following 724 Third Party Claims (except to
the extent that the substance of any such 724 Third Party Claim
is a Breach of Confidentiality Claim, in which event the Claim
shall be governed by the provisions of Section 4.4.3 hereof):
(i) Claims made by Affiliates of BofA, Customers of BofA,
Customers of BofA's Affiliates (together with their
respective directors, officers, employees, agents and
independent contractors) and any other Person given access
to or otherwise obtaining or using the Licensed Technology
or the BofA Funded Improvements by or through BofA, its
Affiliates or those Persons contemplated by Section 2.1 or
otherwise by or through Persons for whom BofA or its
Affiliates are responsible pursuant to this Agreement or at
law (collectively with BofA and its directors, officers,
employees, agents and independent contractors, the "BOFA
LICENSEES") which relate in any way to this Agreement, the
Licensed Technology, the BofA Funded Improvements, the 724
Confidential Information and specifically including those
BofA Third Party Claims referred to in
-31-
Section 4.3.2 above to the extent that the amount
thereof exceeds the liability of 724 in respect thereof,
if any, as provided herein;
(ii) Claims made by third party licensors of the Third Party
Materials in connection with the BofA Licensees' use,
sublicensing, copying, infringement, disclosure or other
involvement with the Third Party Materials, to the extent
that such Claims relate to a breach of the Intellectual
Property Rights of such third party licensors or a failure
to comply with the provisions of (or the agreements
contemplated by) Sections 2.6, 2.11 or 3.1(d) of this
Agreement;
(iii) Claims made by or on behalf of a governmental authority or
entity in connection with the obligation to pay the taxes
and other charges contemplated by Section 3.3; and
(iv) Claims involving the failure by a BofA Licensee to comply
with the provisions of Section 2.12 hereof or Claims
involving a failure by BofA or its Affiliates or a BofA
Licensee to comply with the provisions of Section 3.5 and
Section 7.6 hereof, with the effect that 724 shall have
failed or be alleged to have failed to collect and remit
applicable sales, use, excise, commodity or other taxes
(including goods and services tax and ORST).
4.4.3 BREACH OF CONFIDENTIALITY CLAIMS. BofA covenants and agrees to
be liable for, compensate, indemnify and save harmless the 724
Group from and against any Claim in respect of, as a result of,
or arising out of any of the following matters (collectively, the
"BREACH OF CONFIDENTIALITY CLAIMS"):
(i) any failure by a BofA Licensee (except for Persons who are
merely Customers of BofA or of an Affiliate of BofA, unless
an indemnification obligation is specifically provided for
herein) or a member of the BofA Group to comply with, or
other breach of the provisions of, this Agreement or any
Ancillary Document concerning or in connection with the
permitted/prohibited use or prohibited copying, disclosure
or dissemination or other use or involvement with 724's
Confidential Information, the Licensed Technology, the BofA
Funded Improvements or 724's Intellectual Property Rights;
(ii) any infringement by a BofA Licensee (except for Persons who
are merely Customers of BofA or of an Affiliate of BofA,
unless an indemnification obligation is specifically
provided for herein) or a member of the BofA Group of 724's
Intellectual Property Rights or any failure by such Persons
to take the positive step of notifying 724 promptly after
their becoming aware of an infringement of 724's
Intellectual Property Rights, as provided in this
Agreement; and
(iii) any failure by a member of the BofA Group to obtain for the
benefit of 724 the contractual rights as against Persons
not a party to this Agreement that are contemplated by
Sections 2.1, 2.2 and 2.6 hereof or any failure by
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BofA or its Affiliates to assist 724 in the enforcement
of such rights as contemplated in such provisions.
For greater certainty, notwithstanding any provision of this
Agreement to the contrary, this Agreement shall not be construed
so as to limit in any way the remedies available to 724 at law or
pursuant to statute in connection with the subject matter of a
Breach of Confidentiality Claim.
4.5 LIMITATION OF LIABILITY FOR THE BENEFIT OF BOFA
The provisions of this Section 4.5 shall be construed to apply generally
to all Claims under or in respect of this Agreement by or on behalf of
the 724 Group and not only pursuant to the provisions of Article IV. For
greater certainty, no Claim for breach of the representations, warranties
or covenants herein may be brought by any member of the 724 Group at law
generally if such claim would be prohibited by this Agreement and, in
particular, by this Section 4.5.
4.5.1 LIMITATION ON DIRECT DAMAGE CLAIMS. The aggregate liability of
BofA (whether in one or more Claims and inclusive of all Claims
made or reserved for throughout the entire term of this
Agreement) pursuant to this Agreement for actual and direct
damages incurred by members of the 724 Group as provided in
Section 4.4.1 shall not exceed the sum of: (I) $****; plus
(II) the portion of the License Fee Holdback paid or payable
hereunder prior to, at the time of, or after the Claim is made,
with the exception of the following obligations, which shall
apply without limit and shall not be counted against such
monetary limit:
(i) the obligation to pay the fees and expenses contemplated by
Sections 2.3 and 3.1;
(ii) the obligation to pay the taxes and similar charges
contemplated by Section 3.3;
(iii) the obligation to pay the late fees contemplated by Section
3.4;
(iv) the obligation to pay the attorneys fees contemplated by
Section 5.4;
(v) 724 Third Party Claims; and
(vi) Breach of Confidentiality Claims.
4.5.2 LIMITATION ON CONSEQUENTIAL DAMAGES. Notwithstanding any other
provision of this Agreement, with the exception of 724 Third
Party Claims and Breach of Confidentiality Claims (for each of
which BofA shall, subject to Section 4.3.2, be responsible
without limitation), in no circumstances shall BofA be liable to
724 for loss of profits, loss of revenue, failure to realize
expected savings, loss of use or lack of availability of
facilities (including computer resources and any stored data), or
other commercial or economic loss of any kind whatsoever; nor
shall BofA be liable to 724 for any indirect, special,
consequential, punitive, exemplary or aggravated damages whether
or not arising out of or in connection with the use
[****]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.
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(or inability to use) or performance of the Licensed
Technology, BofA Funded Improvements, documentation, services
or products that are the subject matter of this Agreement,
even if advised of the possibility of same.
4.6 LIMITATIONS FOR THE BENEFIT OF 724
The provisions of this Section 4.6 shall be construed to apply generally
to all Claims under or in respect of this Agreement by or on behalf of
the BofA Group and not only pursuant to the provisions of Article 4. For
greater certainty, no claim for breach of the representations, warranties
or covenants herein may be brought by any member of the BofA Group at law
generally if such Claim would be prohibited by this Agreement and, in
particular, by this Section 4.6.
4.6.1 LIMITATION ON DIRECT DAMAGE CLAIMS. The aggregate liability of
724 pursuant to this Agreement (whether in one or more Claims and
inclusive of all Claims made or reserved for throughout the
entire term of this Agreement) for actual and direct damages
incurred by members of the BofA Group as provided in Sections
4.3.1 and 4.3.2 shall not exceed the amount by which: (I) the
lesser of $**** and the aggregate amount of license fees
previously received by 724 pursuant to the terms hereof; exceeds
(II) the aggregate amount of Claims previously paid or reserved
for pursuant to Sections 4.3.1 and 4.3.2 (whether in one or more
Claims and inclusive of all Claims made or reserved for
throughout the entire term of this Agreement), with the exception
of the following obligations, which shall apply without limit and
which shall not be counted against the aforementioned monetary
limit:
(i) IP Infringement Claims; and
(ii) the right to retain all or part of the License Fee Holdback
or to claim a refund for certain fees, all as provided in
Section 2.14.7.
4.6.2 LIMITATION ON INDIRECT AND CONSEQUENTIAL DAMAGES.
Notwithstanding any other provision of this Agreement, with
the exception of: (I) BofA Third Party Claims (which, together
with Claims by members of the BofA Group pursuant to Section
4.3.1 are limited to an aggregate amount not to exceed the
lesser of $**** and the aggregate amount of license fees
received by 724 herein); and (II) IP Infringement Claims (for
which 724 shall be responsible without limitation), in no
circumstances shall 724 be liable to any member of the BofA
Group or any BofA Licensee for loss of profits, loss of
revenue, failure to realize expected savings, loss of use or
lack of availability of facilities (including computer
resources and any stored data), or other commercial or
economic loss of any kind whatsoever; nor shall 724 be liable
to any member of the BofA Group or BofA Licensee for any
indirect, special, consequential, punitive, exemplary or
aggravated damages whether or not arising out of or in
connection with use (or inability to use) or performance of
the Licensed Technology, BofA Funded Improvements,
documentation, services or products that are the subject
matter of this Agreement, even if advised of the possibility
of same.
[****]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.
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4.6.3 PRODUCT WARRANTIES/ACCEPTANCE TESTING. BofA expressly
acknowledges and agrees that the use and operation of any
Licensed Technology, BofA Funded Improvements, documentation,
services or products that are the subject matter of this
agreement, and the results obtained from such use and operation,
are at the sole and exclusive risk of BofA, its Affiliates and
its Customers and that, notwithstanding anything herein to the
contrary (but subject to the provisions of Section 4.3.2, in the
case of Gross Negligence, recklessness and willful misconduct,
and then only to the extent of the specific limitation of
liability contained herein), 724 assumes no liability or
responsibility with respect to any reliance upon the results
obtained, by BofA, its Affiliates and its Customers or any third
party. BofA acknowledges that, although 724 will use
commercially reasonable efforts in its software development
business to avoid programming errors, 724 does not represent and
warrant that the operation of the Licensed Technology or BofA
Funded Improvements will be error free or that the operation of
the Licensed Technology will not be interrupted by reason of
defect therein. BofA acknowledges and agrees that the Acceptance
Testing process (and the related License Fee Holdbacks)
constitute its sole remedy in this regard and, further, that any
programming errors not caught by the Acceptance Testing process
are solely the risk of BofA, except as provided in Section 4.3.2.
However, 724 has covenanted and agreed, pursuant to, and in
accordance with, the Maintenance and Support Agreement, to
(during the term of such Agreement) correct any defects and make
any modifications which are necessary to cause the Licensed
Technology to conform in all material respects to the
Specifications.)
4.6.4 MITIGATION OF DAMAGES/ABILITY TO CURE RE IP INFRINGEMENT CLAIMS.
If any Licensed Technology, BofA Funded Improvement or other
Deliverable of 724 becomes, or in 724's reasonable opinion is
likely to become, the subject of an IP Infringement Claim, 724
may, at its option and expense: (i) obtain the right for the BofA
Group to continue using the Licensed Technology, BofA Funded
Improvement or other Deliverable in accordance with this
Agreement; or (ii) replace or modify the Licensed Technology,
BofA Funded Improvement or other Deliverable so that it becomes
non-infringing, provided that any such replacement or modified
Licensed Technology, BofA Funded Improvement or other Deliverable
offers the functions that are required by this Agreement to be
provided by the Licensed Technology, BofA Funded Improvement or
other Deliverable being replaced.
BofA covenants and agrees to use commercially reasonable efforts
to work with and assist 724 in obtaining, replacing or modifying
the Licensed Technology so as to have a fully compliant version
thereof on the market as soon as possible and having regard to
724's need to minimize liability to the third party claimant.
4.7 GENERAL ACKNOWLEDGEMENTS FOR THE BENEFIT OF BOTH BOFA AND 724. 724 and
BofA expressly acknowledge and agree that the limitation of liability
provisions of this Agreement reflect an informed voluntary allocation of
the risks (known and unknown) that may exist in connection with the
provision of the goods and services hereunder by 724, including the
performance of the development and delivery of the Licensed Technology
and the BofA Funded Improvements as provided herein, and that such
voluntary risk allocation represents a material part of the Agreement
reached between
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724 and BofA. Except for Breach of Confidentiality Claims, if a
matter is dealt with in this Agreement, no Party shall be obligated or
liable beyond the limits set forth in this Agreement regardless of the
legal basis (contract, tort, or otherwise) for the claim.
4.8 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, BofA FUNDED IMPROVEMENTS,
DOCUMENTATION, SERVICES OR PRODUCTS THAT ARE THE SUBJECT MATTER OF THIS
AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE
AND THOSE OTHERWISE ARISING BY STATUTE (INCLUDING PURSUANT TO THE SALE OF
GOODS ACT (ONTARIO) OR THE CALIFORNIA UNIFORM COMMERCIAL CODE OR
OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
4.9 MATTERS RELATING TO THIRD PARTY MATERIALS AND THE LICENSORS THEREOF.
Notwithstanding anything to the contrary herein contained, 724 shall not
be responsible or liable for any loss, liability, damage, cost or expense
incurred by BofA, its Affiliates or any BofA Licensee as a result of or
in connection with, the use, disclosure, publication or other involvement
with the Third Party Materials (with the exception of the required
integration, as described in Section 2.14.9).
If BofA, or any Affiliate thereof or any BofA Licensee becomes subject to
a claim that the use of the Third Party Materials which have been
sublicensed from 724 infringe any Intellectual Property Right of any
Person, 724 shall exercise any contractual rights of indemnification that
may have been given to it by the third party licensor of the Third Party
Materials for its own benefit and the benefit of BofA, its Affiliates and
the other BofA Licensees, as the case may be, to the extent allowable at
law and/or pursuant to the provisions of the indemnification covenant.
The cost associated with such action (including professional fees and
disbursements, together with applicable taxes, shall be shared PRO RATA
by the Persons (including 724) which shall receive the proceeds from such
indemnification.
4.10 PROCEDURE FOR INDEMNIFICATION FOR DIRECT CLAIMS. In the event of the
assertion of a Claim pursuant to Sections 4.3.1 or 4.4.1, the dispute
resolution procedures of Sections 7.1 and 7.2 shall be applicable.
4.11 PROCEDURE FOR INDEMNIFICATION FOR OTHER CLAIMS. In the event of a BofA
Third party claim or a 724 Third Party Claim, the dispute resolution
procedures of Sections 7.1 and 7.2 shall be applicable. As regards the
third party claimants, the following additional procedures shall be
applicable. The Indemnified Party shall notify the Indemnifying Party in
writing as soon as is reasonably practicable after being informed in
writing that facts exist which may result in a Third Party Claim and in
respect of which a right of indemnification given pursuant to Sections
4.3.2, 4.3.3, 4.4.2 or 4.4.3 may apply. The Indemnifying Party shall
have the right to elect, by written notice delivered to the Indemnified
Party within 10 days of receipt by the Indemnifying Party of the notice
from the Indemnified Party in respect of the Third Party Claim (30 days
in respect of a Claim in respect of taxes or similar charges), at the
sole expense of the Indemnifying Party, to
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participate in or assume control of the negotiation, settlement or
defence of the Third Party Claim, provided that:
(i) such will be done at all times in a diligent and bona fide
matter;
(ii) the Indemnifying Party acknowledges in writing its
obligation to indemnify the Indemnified Party in accordance
with the terms of this Agreement in respect of that Third
Party Claim; and
(iii) the Indemnifying Party shall pay all reasonable
out-of-pocket expenses incurred by the Indemnified Party as
a result of such participation or assumption.
If the Indemnifying Party elects to assume such control, the Indemnified
Party shall cooperate with the Indemnifying Party and its counsel and
shall have the right to participate in the negotiation, settlement or
defence of such Third Party Claim at its own expense. If the Indemnifying
Party does not elect to assume control of the defence of the Third Party
Claim for any reason or, having elected to assume such control,
thereafter fails to proceed with the settlement or defence of any such
Third Party Claim, the Indemnified Party shall be entitled to assume such
control and its reasonable expenses incurred in defending the Claim shall
be reimbursed by the Indemnifying Party. The Indemnifying Party shall
cooperate where necessary with the Indemnified Party and its counsel in
connection with any Third Party Claim where control of the negotiation,
settlement or defence of the Third Party Claim has been assumed by the
Indemnified Party and the Indemnifying Party shall be bound by the
results obtained by the Indemnified Party with respect to such Third
Party Claim. If the Indemnifying Party does not elect to assume control
because it declines to grant the acknowledgement described in
sub-paragraph (ii) above, in good faith, on the basis that it disputes
its obligation, the basis for indemnification or the extent of its
liability, the Indemnifying Party shall nonetheless have the right to
participate in the negotiation, settlement or defence of such Third Party
Claim at its sole expense.
4.12 ADDITIONAL RULES AND PROCEDURES CONCERNING INDEMNIFICATION CLAIMS. The
obligation of the parties to indemnify each other pursuant to this
Article IV shall also be subject to the following:
4.12.1 If any Third Party Claim is of a nature such that the Indemnified
Party is required by applicable law to make a payment to any
Person (a "Third Party") with respect to such Third Party Claim
before the completion of settlement negotiations or related legal
proceedings, the Indemnified Party may make such payment and the
Indemnifying Party shall, forthwith after demand by the
Indemnified Party, reimburse the Indemnified Party for any such
payment. If the amount of any liability under the Third Party
Claim in respect of which such a payment was made, as finally
determined, is less than the amount which was paid by the
Indemnifying Party to the Indemnified Party, the Indemnified
Party shall, forthwith after receipt of the difference from the
Third Party, pay such difference to the Indemnifying Party
(together with any interest that may have been received by the
Indemnified Party from the Third Party in connection with such
refund);
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4.12.2 Except in the circumstances contemplated by Section 4.12.1 above,
and whether or not the Indemnifying Party assumes control of the
negotiation, settlement or defence of any Third Party Claim, the
Indemnified Party shall not settle or compromise any Third Party
Claim except with the prior written consent of the Indemnifying
Party (which consent shall not be unreasonably withheld). A
failure by the Indemnifying Party to respond in writing to a
written request by the Indemnified Party for consent for a period
of five Business Days or more, shall be deemed a consent by the
Indemnifying Party to such request;
4.12.3 The Indemnifying Party and the Indemnified Party shall, in
connection with any Third Party Claim, provide each other on an
ongoing basis with all information which may be relevant to the
other's liability hereunder and shall supply copies of all
relevant documentation promptly as they become available (and the
reasonable expenses of the Indemnified Party related to the
compilation of such information and provision of copies of
documentation shall be forthwith reimbursed by the Indemnifying
Party);
4.12.4 Notwithstanding Section 4.12.1, the Indemnifying Party shall not
settle any Third Party Claim or conduct any related legal or
administrative proceeding in a manner which would, in the opinion
of the Indemnified Party, acting reasonably, have a material
adverse impact on the Indemnified Party;
4.12.5 The right of an Indemnified Party to indemnification hereunder
shall not be prejudiced by the failure of the Indemnified Party
to meet the notice requirements provided for in this Article IV
except to the extent that the delay in notification is the direct
cause of an increase of cost or expense incurred by the
Indemnifying Party or the direct cause of a loss of an effective
defence available to the Indemnifying Party and then only to the
extent of such increased cost or expense or the provable damages
caused by the loss of such available defence;
4.12.6 The Indemnified Party agrees to treat any indemnification payment
made pursuant to this Agreement (including, in particular,
Article IV) in the most tax effective manner available to the
Indemnifying Party, which the Indemnifying Party may specify,
provided that the Indemnified Party will not be prejudiced (as
determined in the sole discretion of the Indemnified Party,
acting in good faith and after consulting with its professional
advisors) by any such treatment; and
4.12.7 BofA acknowledges and agrees that any indemnification payment to
be made pursuant to this Agreement (including, in particular,
Article IV) shall constitute an adjustment to the license fees
payable pursuant to Section 3.1 of this Agreement and the parties
shall, within a reasonable time of the payment or settlement by
set-off of the indemnification payment in question, file all
amendments to their current or past income tax returns as may be
necessary to reflect the adjustment.
4.13 TRANSFER TAXES. If the parties acting reasonably determine that any
payment (the "Payment") made pursuant to this Article IV is subject to
goods and services tax ("GST") or harmonized sales tax ("HST") pursuant
to the ETA or is deemed by the ETA to be inclusive of GST, HST or Ontario
retail sales tax ("ORST") pursuant to the ORSTA or is deemed by the ORSTA
to be inclusive of ORST (or if any sales, excise or other similar
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tax or statutory charge is applicable under the relevant tax
legislation(including pursuant to the laws of Canada or the United
States or any political subdivision thereof) to such Payment), the
amount of the Payment shall be increased by the amount of all such
applicable taxes to the extent necessary to compensate the Indemnified
Party for any net GST, HST, ORST or similar tax cost not recoverable
as input tax credit, refund, rebate, offset or similar tax recoveries.
4.14 OTHER PARTIES TO BE INDEMNIFIED. To the extent that any member of the
BofA Group or the 724 Group not a party hereto is stated as the
beneficiary of the representations, warranties, covenants and indemnities
herein, the parties acknowledge and agree that BofA (in the case of the
BofA Group) and 724 (in the case of the 724 Group) is contracting for
such representations, warranties, covenants and indemnities on behalf of
and as agent and trustee for such other persons.
4.15 INTEREST. The provisions of Section 3.4 shall apply MUTATIS MUTANDIS to
any payments to be made pursuant to this Article IV.
ARTICLE V
CONFIDENTIALITY AND NON-SOLICITATION
5.1 CONFIDENTIAL INFORMATION. Each Party who receives Confidential
Information (referred to in this section as the "Receiving Party") of the
other Party or its Affiliates (referred to in this Section 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 disclose to any third party any Confidential
Information so received. Each Receiving Party shall take appropriate
action using commercially reasonable efforts (and, in any event, that are
no less than the efforts used to protect its own Confidential
Information) by instruction, agreement or otherwise to ensure that the
Receiving Party, its Affiliates and shareholders, and each of their
directors, officers, employees, consultants, agents and customers 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 or other Person to whom disclosure of the Disclosing Party's
Confidential Information is made in carrying out such purposes, a
covenant not to further disclose or make use of any of the Disclosing
Party's Confidential Information in any manner whatsoever. For greater
certainty, the provisions of this Section shall survive any termination
of this Agreement for any reason whatsoever.
5.2 ELECTRONIC DISTRIBUTION. 724 acknowledges that BofA may distribute the
Licensed Technology through the Internet or related communications
systems. Given the open nature and public accessibility of these
systems, BofA's obligations with respect to confidentiality of the
Licensed Technology are to take commercially reasonable precautions to
protect the confidentiality of the Licensed Technology distributed
through these systems. The Parties agree to work together to address the
issue of confidentiality of the Licensed Technology which is provided
over the Internet.
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5.3 NON-SOLICITATION OF EMPLOYEES. During the term of this Agreement and the
one year period thereafter, or such shorter period ending one year after
BofA shall no longer be in the Continuing Alliance and shall not be
further exercising the Preferred Customer Option (as provided in Section
2.3) neither 724 nor any business group within BofA that works directly
with 724 (referred to as "OBLIGEE" for the purposes of this Section)
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 endeavour 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 5.3 shall not
apply if any one of the events listed in Section 6.1 (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.
5.4 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 court or arbitrators, shall be entitled to
attorneys' fees actually incurred, costs and necessary disbursements
incurred in connection with such action or proceeding, including any
applicable taxes thereon.
ARTICLE VI
TERMINATION
6.1 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; (ii) has a receiver
and/or manager appointed over its assets (unless such appointment is
being contested in good faith by appropriate proceedings); (iii) 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; (iv) has a court order made for its
winding-up (unless such order is being appealed in good faith by
effective proceedings which result in at least a temporary stay of such
order); or (v) ceases to carry on business.
6.2 SURVIVAL OF LICENSE. If a voluntary petition is commenced by 724 under
the United States Bankruptcy Code (Title 11, U.S. Code, referred to
hereafter as the "Code") or a similar statute of another jurisdiction,
724 becomes bankrupt, any substantial part of 724's property becomes
subject to any levy, seizure, assignment, application or sale for or by
any creditor or governmental agency or a receiver should be appointed for
724 (in each case provided that 724 is not contesting such proceedings in
good faith), 724 shall deliver to BofA, promptly after Bank's request, a
copy of the most recent version of the Licensed Technology, including the
source code for such version, and all compilers and assemblers that 724
has the right to deliver, along with the names, addresses and telephone
numbers of the licensors of all Third Party Materials. The parties agree
that all
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software delivered pursuant to this Agreement and the documentation
therefor constitute "intellectual property" under Section 101 of the
Code (11 U.S.C. Section 101). 724 agrees that if it, as a
debtor-in-possession, or if a trustee in bankruptcy for 724, in a case
under the Code, rejects this Agreement, BofA may elect to retain its
rights under this Agreement as provided in Section 365(n) of the Code.
BofA, and any intellectual property rights, licenses or assignments from
724 of which BofA may have the benefit, shall receive the full
protection granted to BofA by applicable bankruptcy or receivership law,
regardless of the jurisdiction in which 724 files a petition or goes
into receivership.
ARTICLE VII
GENERAL
7.1 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 days after the date of the
written notification, to attempt 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 managements. 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 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 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 unless and until this dispute resolution procedure has been
employed or waived.
7.2 ARBITRATION. Either Party shall 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 or the improper disclosure or use
of the source code version of the Licensed Technology) to arbitration in
accordance with the provisions of Schedule "A" hereto.
7.3 EXCUSABLE DELAYS. Dates and times by which 724 or BofA is required to
render performance hereunder shall be postponed automatically to the
extent and for the period of time that 724 or BofA, 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 than 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.
7.4 TIME. Time is of the essence of each provision of this Agreement.
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7.5 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 or by commercial courier 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 724, AT:
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxxxxxx
WITH A COPY TO:
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx, BankAmerica Project Manager
TO BOFA, AT:
Bank of America NT&SA
Interactive Banking Division Administration #10308
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Executive Vice-President
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WITH A COPY TO:
Bank of America
Office of the General Counsel
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Associate General Counsel
AND WITH A COPY TO:
Bank of America NT&SA
Interactive Banking Division
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx
00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Vice-President, Interactive
Banking Product Development 3690, 724 Solutions Project
Manager
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. Any Notice so given or made shall be
deemed to have been given or made on the day of delivery if delivered as
aforesaid or on the Business Day immediately following the day of
Electronic Transmission.
7.6 ASSIGNMENT AND ENUREMENT. No Party may assign any rights or benefits
under this Agreement to any Person without the prior written consent of
the other Party. Notwithstanding the foregoing, a Party may assign this
Agreement to an Affiliate provided that such Affiliate remains an
Affiliate of the assigning Party and the original parties hereto remain
liable as principal covenantor and provided, further, that no assignment
may be made to an Affiliate which is a Competitor unless such Affiliate
is wholly-owned, directly or indirectly, by Bank of America Corporation.
Provided, further, that BofA may not assign this Agreement to any Person
that: (a) is not a non-resident of Canada as that term is defined in the
ETA; or (b) is registered pursuant to subdivision d of Part IX of the
ETA. In the event that an Affiliate of BofA has been assigned this
Agreement and such Affiliate ceases to be an Affiliate of BofA, such
Affiliate shall, and BofA shall cause such Affiliate to, immediately
reassign this Agreement to an Affiliate of BofA. Subject to the
foregoing, this Agreement shall enure to the benefit of and be binding
upon the Parties and their respective heirs, personal representatives,
successors (including any successor by reason of amalgamation or
statutory arrangement of any Party) and permitted assigns. In all such
circumstances, the assignor shall remain liable hereunder as principal
debtor notwithstanding such assignment.
-43-
7.7 FURTHER ASSURANCES. Each Party shall do such acts and shall execute such
further documents, conveyances, deeds, assignments, transfers and the
like, and will cause the doing of such acts and will cause the execution
of such further documents as are within its power as any other Party may
in writing at any time and from time to time reasonably request be done
and or executed, in order to give full effect to the provisions of this
Agreement.
7.8 EXPENSES. Except as provided in Section 5.4, each Party shall pay all
expenses it incurs in authorizing, preparing, executing and performing
this Agreement and the transactions contemplated hereunder, including all
fees and expenses of its legal counsel, bankers, investment bankers,
brokers, accountants or other representatives or consultants.
7.9 REMEDIES CUMULATIVE. Subject to Section 4.7, 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.
7.10 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.
7.11 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.
7.12 RELATIONSHIP OF PARTIES. This is an 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.
TO WITNESS their agreement, the Parties have duly executed this Agreement on
the date first written above.
724 SOLUTIONS INC. BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
PER: /s/ Xxxxxxxxxxx Xxxxxxxx PER: /s/ Xxxxxxx XxXxxx
------------------------------ ----------------------------
NAME: XXXXXXXXXXX X. XXXXXXXX NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT TITLE: EXECUTIVE VICE PRESIDENT
DATE: June 1, 1999
PER: /s/ Xxxxxx Xxxxxx
-----------------------------
NAME: XXXXXX XXXXXX
TITLE: VICE PRESIDENT
DATE: June 1, 1999
EXECUTION COPY
SCHEDULE "A"
ARBITRATION RULES OF PROCEDURE
1.0 DISPUTES COVERED BY THESE RULES. The disputes to be covered by the
provisions of these Rules of Procedures (the "Rules") are those disputes
referred to in section 7.1 of the Agreement to which this Schedule "A" is
attached and which arise out of or relate to or are in connection with any of
the formation, interpretation, application, operation, and enforcement of the
Agreement.
1.1 EXCLUSIVE JURISDICTION. Subject to the provisions of Article 1.6
(Governing Law), it shall be a condition precedent to the bringing of any legal
proceedings with respect to the disputes referred to in Section 7.2
(Arbitration), that the settlement procedure provided for in these Rules shall
have been followed and completed.
1.2 APPOINTMENT OF ARBITRATION BOARD
(a) If any Party wishes to have any matter under this Agreement
arbitrated in accordance with the provisions of this Agreement,
it shall give notice ("Arbitration Notice") to the other Party
specifying particulars of the matter or matters in dispute and
proposing the name of its nominee.
(b) Arbitration shall be carried out by an Arbitration Board of three
persons. If the Parties agree in writing, the Arbitration Board
may be composed of a single arbitrator.
(c) The Parties will attempt in good faith to agree to a mutually
acceptable qualified Arbitration Board, that is willing to act,
but if the Parties are unable to do so within 15 days of the
giving of the Arbitration Notice, either Party may request the
applicable courts of the Province of Ontario to do so. Either
Party may request that such courts, before making such
appointment, consult with the President of the Computer Law
Association as to the identity of suitable nominees as
Arbitration Board.
(d) No member of the Arbitration Board may be a director, officer, an
employee or shareholder of either Party or of any affiliate or
associate of that Party or any associate of any such director,
officer, employee or shareholder or any other person who has a
direct financial interest in such Party or in any associate or
affiliate of such Party or of a director, officer, employee, or
shareholder of such Party or who has a direct financial interest
in the matter in dispute. The terms "associate" and "affiliate"
shall have the respective meanings ascribed to such terms by the
BUSINESS CORPORATIONS ACT (Ontario) on the date hereof.
(e) The expenses of the Arbitration Board shall be borne equally by
the Parties.
1.3 QUALIFICATIONS OF ARBITRATION BOARD. The Arbitration Board shall consist
of three individuals, one of which shall have not less than 10 years experience
as a licensed practicing lawyer, and one of which shall have not less than 10
years experience in or with the computer software industry. If the Arbitration
Board consists of only one person, as agreed by the Parties, then the sole
arbitrator shall have not less than 10 years experience in or with the computer
-2-
software industry and must have acted as an arbitrator or mediator within the
previous 5 years. Without limiting the generality of the foregoing, the
Arbitration Board shall be at arm's length from both Parties and no member of
the Arbitration Board shall be a member of the audit or legal firm or firms
who advise either Party, nor shall he/she be a person who is otherwise
regularly retained by such Parties.
1.4 SUBMISSION OF WRITTEN STATEMENTS
(a) Within 20 days of the appointment of the Arbitration Board, the
Party initiating the arbitration (the "Claimant") shall send the
other Party (the "Respondent") a Statement of Claim setting out
in sufficient detail the facts and any contentions of law on
which it relies, and the relief that it claims.
(b) Within 20 days of the receipt of the Statement of Claim, the
Respondent shall send the Claimant a Statement of Defence stating
in sufficient detail which of the facts and contentions of law in
the Statement of Claim it admits or denies, on what grounds, and
on what other facts and contentions of law he relies.
(c) Within 20 days of receipt of the Statement of Defence, the
Claimant may send the Respondent a Statement of Reply.
(d) All Statements of Claim, Defence and Reply shall be accompanied
by copies (or, if they are especially voluminous, lists) of all
essential documents on which the Party concerned relies and which
have not previously been submitted by any Party, and (where
practicable) by any relevant samples.
(e) After submission of all the Statements, the Arbitration Board
will give directions for the further conduct of the arbitration.
1.5 MEETINGS AND HEARINGS
(a) The arbitration shall take place in the Municipality of
Metropolitan Toronto, Ontario or in such other place as the
Claimant and the Respondent shall agree upon in writing. The
arbitration shall be conducted in English unless otherwise agreed
by such Parties and the Arbitration Board. Subject to any
adjournments which the Arbitration Board allows, the final
hearing will be continued on successive working days until it is
concluded.
(b) All meetings and hearings will be in private unless the Parties
otherwise agree.
(c) Any Party may be represented at any meetings or hearings by legal
counsel.
(d) Each Party may examine, cross-examine and re-examine all
witnesses at the arbitration.
1.6 POWERS OF ARBITRATOR. By submitting a dispute to settlement under these
Rules, the Parties shall be taken to have conferred on the Arbitration Board the
following jurisdiction and powers, to be exercised by the Arbitration Board so
far as the relevant law allows, and in its absolute and unfettered discretion,
if the Arbitration Board shall judge it to be expedient for the
-3-
purpose of ensuring the just, expeditious, economical and final determination
of the dispute. The Arbitration Board shall have jurisdiction to:
(a) determine any question of fact and law (including, in particular,
responsibility for the direct claims and the indemnification
claims provided for in the Agreement, as well as the quantum and
nature of the damages, loss, liability, expense or other subject
matter of the claim);
(b) determine any question as to its own jurisdiction;
(c) determine any question of good faith, dishonesty or fraud arising
in the dispute;
(d) order any Party to furnish such further details of the Party's
case, in fact or in law, as it may require;
(e) proceed notwithstanding the failure or refusal of any Party to
comply with these Rules or with its orders or directions, or to
attend any meeting or hearing, but only after giving that Party
written notice that it intends to do so;
(f) order the Parties to produce to the Arbitration Board, and to
each other for inspection, and to supply copies of, any documents
in their possession or power which it determines to be relevant.
Notwithstanding the foregoing, the Arbitration Board shall allow
discovery only to the extent of a single request for production
of documents; oral depositions or other discovery requests shall
not be permitted unless the Arbitration Board finds and informs
the Parties that denial of such requests would be manifestly
unjust;
(g) receive and take into account such written or oral evidence as it
shall determine to be relevant, whether or not strictly
admissible in law;
(h) hold meetings and hearings (at which the Parties may be
represented by legal counsel) and consider written and oral
evidence and make his/her award (including any interim award
considered necessary by the Arbitration Board, and the final
award) in Ontario, and, with the concurrence of the Parties
thereto, elsewhere; and
(i) make any other interim or final orders which it considers to be
appropriate in all the circumstances for any of the above
purposes.
In addition, the Arbitration Board shall have such further jurisdiction
and powers as may be allowed to it by the INTERNATIONAL COMMERCIAL
ARBITRATIONS ACT (Ontario), the Agreement, the specific submission
referred to herein, the Rules of the Institute and the arbitral laws of
any place in which it holds hearings or in which witnesses attend, and of
any place in which it gives any directions or makes any orders or any
award.
1.7 THE AWARD. The Arbitration Board shall include in its award an order as
to the payment of the costs of the proceedings and reasonable counsel fees
(including all applicable taxes under the relevant tax legislation), and,
subject to the discretion of the Arbitration Board, costs will follow success
unless, in the opinion of the Arbitration Board, there is a compelling reason to
depart from such result. Any Party ordered to pay costs may avail itself of any
procedure for the
-4-
taxing of costs, provided, however, that the Parties specifically agreed that
the officer taxing such costs need not be bound by any statutory scale of
costs.
The Arbitration Board will make its decision in writing and, unless the Parties
otherwise agree, the Arbitration Board's reasons will be set out in the award.
The Arbitration Board will send such award to the Parties as soon as practicable
after the conclusion of the proceedings. The award shall be final and binding
on the Parties and shall not be subject to any appeal or review procedure
whatsoever, provided that the Arbitration Board followed the Rules in good
faith. The Arbitration Board shall reconsider its findings once at the request
and expense of a Party, but in such event shall limit the Parties to a single
memorandum stating any relevant new evidence, points and authorities, unless
doing so would be manifestly unjust.
1.8 ACCESS TO COURTS FOR ENFORCEMENT AND INTERIM REMEDIES. The Parties
consent to the award of the Arbitration Board being entered in any Court having
jurisdiction for the purposes of enforcement. In addition, if it appears to any
Party that the Arbitration Board lacks the power to give effective interim
relief, either Party may apply to any appropriate Court for such relief.
1.9 CONFIDENTIALITY. All meetings and hearings of or by the Arbitration
Board shall be in private. All matters in dispute, all claims, submissions,
evidence and findings, and the award itself (collectively, the "Information")
shall be kept confidential by the Arbitration Board, and no information
regarding any of the foregoing will be released to any third Party or otherwise
made public without the written consent of both Parties, except as otherwise
contemplated herein and except for information which is not Confidential
Information.
CERTAIN PORTIONS OF THIS EXHIBIT 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.
SCHEDULE B
BANK OF AMERICA -- TECHNOLOGY LICENSE AGREEMENT
BANK OF AMERICA INITIAL LAUNCH
Bank of America intends to leverage the existing 724 Solutions
functionality to provide online banking services on the channels noted below.
As the functionality and channels are expanded by 724 Solutions, BofA expects
to implement these improvements, as they become available later in 1999.
DELIVERABLES (1)
The implementation approach for the first deliverable is to reuse
existing 724 Solutions functionality and limit the scope of changes to
presentation and data differences. The scope of changes will be identified by
724 Solutions, working in conjunction with BofA, and delivered to BofA as
indicated below.
DELIVERABLE RESPONSIBLE PARTY DUE DATE
--------------------------------------- ---------------------------------- --------
Detailed Functional Specification 724 Solutions with input from BofA ****
Detailed Customer Service Specification 724 Solutions with input from BofA ****
724 Solutions Project Team 724 Solutions ****
Interface Specification 724 Solutions with input from BofA ****
Client and Mid-Tier Software with 724 Solutions ****
Supporting Documentation
CHANNELS (1)
In support of the initial 1999 launch of 724 Solutions' technology for
Bank of America, 724 Solutions will deliver supported functionality to the
following channels/devices:
- ****
- ****
- ****
- ****
One-way notification will also be supported to a range of devices,
including (but not necessarily limited to) ****.
SUPPORTED FUNCTIONALITY (1)
The scope of functionality is based on the Bank of Montreal function set
for their initial launch. Additional functionality may be implemented as
indicated below.
[****]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.
B-1
**** CERTAIN PORTIONS OF THIS EXHIBIT 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.
724 SOLUTIONS 1999 DEVELOPMENT SCHEDULE
The functionality agreed to with the Bank of America for their initial
launch is described in the following table(1):
FUNCTIONAL AREA FUNCTION EXCLUSIONS
--------------- -------- ----------
Sign-up and **** ****
Sign-on
Banking ****
**** ****
**** **** ****
------------------------------
(1) Functionality implemented on a particular device or channel is subject to
the capabilities of the device or channel. Note that not all function is
available on all channels because of their restricted form factors and/or
usability concerns (a "--" in the table indicates that the function is
supported in all channels).
****
[****] 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.
B-2
FUNCTIONAL AREA FUNCTION EXCLUSIONS
--------------- -------- ----------
**** ****
**** **** ****
**** **** ****
****
****
Profile and **** ****
Persona
**** ****
**** --
****
Alerts **** ****
**** ****
Call Center **** ****
Support
**** ****
**** ****
------------------------------
****
[****] 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.
B-3
DELIVERABLES (2)
724 Solutions is planning a second release in 1999 (Bonus Pack) of
additional functions and enhancements based on feedback from the Bank of
Montreal and Bank of America product launches. The Bonus Pack scope will be
identified by 724 Solutions, working in conjunction with BofA and BMO, and
delivered to BofA as indicated below.
DELIVERABLE RESPONSIBLE PARTY DUE DATE
----------- ----------------- --------
Detailed Functional Specification........................... 724 Solutions ****
Client and Mid-Tier Software with Supporting 724 Solutions ****
Documentation.............................................
WEIGHTING OF DELIVERABLES FOR ACCEPTANCE TESTING HOLDBACK
Deliverable (1) Weighting: ****
Deliverable (2) Weighting: ****
SUMMARY
Other opportunities may be identified to leverage existing Bank of America
content and tools.
The content and timing of DELIVERABLES (1) + (2) are subject to change as
agreed by Bank of America and 724 Solutions.
[****] 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.
B-4
SCHEDULE "C"
PRINCIPAL MILESTONES OF THE 2000 DEVELOPMENT PLAN
724 SOLUTIONS 2000 DEVELOPMENT AND R&D SCHEDULE
BANK OF AMERICA POST LAUNCH AND R&D
724 Solutions will extend the functionality implemented in the first
launch of 1999 in conjunction with conducting joint R&D with the Bank of
America, with the expectation that some of these efforts will result in new
releases commencing in the year 2000.
The priority assigned to the content of these releases, the direction
expected of R&D efforts, and the timing of both will be agreed to jointly by
724 Solutions and the Bank of America. Many of the items scoped by these
deliverables are forward-looking and are subject to:
- Market readiness (installed base and deployed infrastructure)
- Technology readiness; technologies on which the deliverables are
dependent must be sufficiently mature and generally available
The next two sections describe areas which 724 Solutions considers to be
important both from its own analyses as well as from feedback received during
introductory meetings already held between 724 Solutions and the Bank of
America.
DELIVERABLES (1)
This section describes the scope of the first deliverables of 724
Solutions' technology for the Bank of America in the year 2000. The date for
publication of - and agreement to - a functional specification addressing
these deliverables is TBD. The date of final delivery of the deliverables by
724 Solutions to the Bank of America is also TBD.
CHANNELS (1)
This first set of year 2000 deliverables will be targeted to support
functionality for the following channels/devices:
- ****
- ****
- ****
MODEL BANK ALIGNMENT
724 Solutions, under the direction of Bank of America, will develop a
product integration strategy to support the efforts of the Bank of America in
the area of its Model Bank. This strategy will require effort from both Bank
of America and the 724 Solutions implementation team. This will include:
- Interface with GCIF and Customer Profile as appropriate
- Interface with Contact History
- Access ID directory integration (PKI and PMI implications)
- Process integration (how will our solution support the re-engineered
Model Bank processes, and the people that constitute them)
FUNCTIONALITY (1)
The Bank of America has indicated that the scope of these deliverables
should include the following areas:
FUNCTIONAL AREA FUNCTION
--------------- --------
Sign-up and Sign-on Inter-FI authentication
General FI aggregation
Enhanced Network-based PFM capability
Banking Bank account statment closing
****
Lifestyle The suite of lifestyle content supported by 724
Solutions' technology will be expanded.
Candidates may include (and are not necessarily
limited to)
****
Profile and Persona Persona and profile maintenance
****
Alerts ****
Call Center Support Enrollment
The functionality will be delivered on CD in the form of object code
with supporting documentation.
DELIVERABLES (2)
This section describes the scope of the deliverables of 724 Solutions'
technology in the year 2000 subsequent to delivery of the first 2000
deliverables.
CHANNELS (2)
This second drop of 724 Solutions' technology deliverables will be
targeted to support functionality for the following channels/devices:
- *****
Further investigation of technology(s) required to support **** may also
be undertaken.
Strategy for providing support for legacy channels will be developed.
FUNCTIONALITY (1)
Each of the following areas is a candidate for the second release of
functionality in the year 2000 of the Bank of America:
FUNCTIONAL AREA FUNCTION
--------------- --------
Sign-up and Sign-on ****
General ****
Brokerage ****
Brokerage - Extended ****
Lifestyle The suite of lifestyle content supported by 724
Solutions' technology will continue to be expanded
Profile and Persona ****
Alerts ****
The functionality will be delivered on CD in the form of object code
with supporting documentation.
WEIGHTING OF DELIVERABLES FOR ACCEPTANCE TESTING HOLDBACK
Deliverable (1) Weighting: 50%
Deliverable (2) Weighting: 50%
The content and timing of DELIVERABLES(1) + (2) are
subject to change as agreed by Bank America and 724 Solutions.
[****]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.
C-1
