[CONFIDENTIAL TREATMENT REQUESTED. CERTAIN PORTIONS OF THIS
AGREEMENT HAVE BEEN REDACTED AND FILED SEPARATELY WITH
THE COMMISSION.]
EXHIBIT 10.18
STRATEGIC ALLIANCE AGREEMENT
TERM OF AGREEMENT: 1 May 2004 through 30 April 2007 (the "Term").
TERRITORY OF AGREEMENT: Worldwide.
VISA CONTACT: XXXXXX XXXXXX
CONTACT PHONE NUMBER: [***]
CONTACT FACSIMILE NUMBER: [***]
CONTACT EMAIL: [***]
ICT CONTACT: XXXX XXXXXXXXXXX
CONTACT PHONE NUMBER: 000-000-0000
CONTACT FACSIMILE NUMBER: 000-000-0000
CONTACT EMAIL: [***]
This Agreement (the "Agreement") is between Visa International Service
Association ("Visa"), with its principal place of business at 000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx 00000 (mailing address X.X. Xxx 0000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 94128-8999) on the one hand and LensCard, Inc, doing
business as InCard Technologies ("ICT"), with its principal place of business at
00000 Xxxxxxxx Xxxxxxxxx Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, on the
other.
In view of the parties' shared interest in achieving their joint and respective
product and marketing goals by implementing the cooperative development and
marketing relationship and activities contemplated herein in support of bringing
ICT's power-enabled card technologies and associated rights (the "Service") to
Visa member financial institutions ("Members"), and in consideration of the
mutual covenants and conditions set forth herein and in Exhibits A, B, and C
hereto, all of which are incorporated herein by reference, Visa and ICT agree as
follows:
Subject to the terms and conditions specified in Exhibit A hereto, Visa will
perform the obligations specified in Exhibit B hereto and ICT will perform the
obligations specified in Exhibit C hereto.
VISA INTERNATIONAL LENSCARD, INC. DOING BUSINESS AS INCARD
SERVICE ASSOCIATION ("VISA") TECHNOLOGIES ("ICT")
By: /s/Xxxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxxxxx
-------------------------------- ------------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxx Xxxxxxxxxxx
------------------------------- ----------------------------------
Title: VP Title: CEO
------------------------------- -----------------------------------
Date: 5/26/04 Date: 5/26/04
------------------------------- -----------------------------------
*** Confidential Treatment Requested
EXHIBIT A
TERMS AND CONDITIONS
I. REPRESENTATIONS AND WARRANTIES.
A. BY BOTH PARTIES. ICT and Visa each warrant and represent that (i) it
has the power and authority to grant the rights and perform the
obligations to which it commits herein; (ii) the execution of the
Agreement by the person representing it will be sufficient to render the
Agreement binding upon it; and (iii) neither its performance hereunder nor
the exercise by the other party of rights granted by the warranting party
hereunder will violate any applicable laws or regulations, or the legal
rights of any third parties, or the terms of any other agreement to which
the warranting party is or becomes a party. Each party is separately
responsible for ensuring that its performance and grant of rights does not
constitute any such violation during the Term. No party approval of
advertising or other copy submitted by another will relieve the other's
responsibility under this Section.
B. LIMITATIONS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES
ANY REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, REGARDING SUCH PARTY AND ITS PRODUCTS AND SERVICES OR
ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AS WELL AS IMPLIED WARRANTIES ARISING
FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, VISA SPECIFICALLY DISCLAIMS ANY WARRANTY
REGARDING THE NUMBER OF PERSONS AND FINANCIAL INSTITUTIONS WHO WILL AVAIL
THEMSELVES OF ANY VISA OR ICT PRODUCT OR OFFER.
II. INTELLECTUAL PROPERTY RIGHTS, USAGE.
A. GENERALLY. Each party specifically acknowledges that the Agreement does
not confer upon such party any interest in or right to use any
Pre-Existing Intellectual Property of the other party without that other
party's prior written consent. Each party further agrees that upon
termination of the Agreement (except as may be otherwise agreed by the
parties), such party will immediately cease and discontinue all use of the
other party's Pre-Existing Intellectual Property authorized hereunder. As
used herein, "Pre-Existing Intellectual Property" means (i) a party's
service marks, trademarks and distinct brand elements (collectively
"Marks"); (ii) other information, art or design work, copy, or other
material independently developed or acquired by a party not in connection
with (or resulting from) participation in the activities contemplated in
the Agreement and for which a party holds intellectual property rights,
such as patents, copyrights, trademark, service xxxx, or trade dress
rights (or licenses of any of the foregoing), or other intellectual
property rights.
B. REVIEW. Without limiting the foregoing, all materials created by or for
a party including, without limitation, advertisements, marketing
materials, press releases, mailings, web content, and any other materials
which relate to or contain Marks or Pre-Existing Intellectual Property of
the other party will be subject to that other party's prior written
approval which will not be unreasonably withheld. Each party will allow
the other party at least five business days from receipt to review such
materials. If for any reason the reviewing party does not respond within
five business days, such materials will be deemed approved.
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C. WORK PRODUCT. With respect to all materials and activities carried out
by either or both parties hereunder, each party will have full right,
title, and interest, including all applicable copyright, trademark and
patent rights, in its own Work Product whether created in connection with
the Agreement or not. To the extent the parties cooperate to develop
and/or produce Work Product in connection with performance hereunder, they
will mutually agree in writing, prior to such development or production,
regarding which party or parties, as the case may be, will have ownership
of such Work Product or portions thereof. In the absence of any such
agreement or applicable provision hereof, applicable copyright, trademark,
or patent laws will define the parties' respective rights. As used herein,
"Work Product" means improvements, inventions, developments, discoveries,
products and data, whether or not subject to patent; creative works,
drawings, designs, copy, art and all other copyrightable material; as well
as all their derivatives and modifications that a party makes, conceives,
or reduces to practice.
No party shall, hereby or by the activities contemplated herein, gain any
rights in the other's Pre-Existing Intellectual Property, Work Product or
any derivative works therefrom, except as otherwise provided herein or
otherwise agreed to in writing.
III. CONFIDENTIALITY, PUBLICITY.
A. CONFIDENTIALITY. ICT and Visa each agree that it will not use in any
way for its own account or the account of any third party, nor will it
disclose to any third party, any Confidential Information revealed to it
by the other party. Each party will take such reasonable precautions to
protect the confidentiality of such Confidential Information as are
employed to protect the party's own information of a similar nature. As
used herein, "Confidential Information" means the terms of this Agreement
as well as all information, documents and materials provided by one party
to the other party before or during the Term relating to the Agreement,
including without limitation technical data, specifications, trade
information, customer or client lists and records, business and marketing
plans, reports and technical and marketing data. Each party will advise
its employees, subcontractors, and agents, as appropriate, of their
confidentiality obligations under the Agreement.
B. LIMITATION OF DUTY. Neither party will be under any obligation to
maintain in confidence any portion of Confidential Information which (i)
is or becomes generally known or available to the public through no act or
failure to act by the recipient; (ii) was already developed or otherwise
possessed by the recipient at the time of its receipt of such information;
(iii) is furnished to the recipient by a source other than the other
party; or (iv) is subject to compelled disclosure under a judicial or
governmental order (and then only to the extent of that order). In the
latter case, the disclosing party will immediately notify the owner of the
Confidential Information of the imminence of any such disclosure, and give
the owner an opportunity to object to such disclosure.
C. CARDHOLDER INFORMATION. Without limiting the foregoing, in the event
that, in connection herewith, ICT comes into possession of Cardholder
Information, then ICT will maintain physical, electronic and procedural
safeguards designed to (i) maintain the security and confidentiality of
such Cardholder Information; (ii) protect against any anticipated threats
or hazards to the security or integrity of such Cardholder Information;
and (iii) protect against unauthorized access to or use of such Cardholder
Information including without limitation that which could result in
substantial harm or inconvenience to Visa cardholders, and ICT will make
available to Visa reports sufficient to allow Visa to monitor ICT's
compliance with this obligation. ICT will use and disclose Cardholder
Information only in the ordinary course of
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business to carry out the purposes for which the Cardholder Information
was disclosed or obtained and shall not use or disclose the Cardholder
Information for other purposes. For the purposes of this Agreement,
"Cardholder Information" means a Visa account number, Visa transaction
information or other personally identifiable information relating to a
Visa consumer cardholder.
D. PUBLICITY. The parties will consult with one another concerning the
form and substance of any press release or other public disclosure of the
matters covered by the Agreement, and will mutually agree on the form and
substance of any such disclosure before any such disclosure is made.
Notwithstanding the foregoing or any other provision hereof, Visa's
consent shall not be required for ICT to identify Visa as a strategic ally
in ICT's presentations to actual or prospective customers, vendors and
investors.
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IV. TERM AND TERMINATION.
A. TERM. The Agreement will be effective on the first day of the Term (the
"Effective Date") and will expire upon completion of the Term. Sections
II.C, III, V, and VI will forever survive such expiration and any early
termination of the Agreement.
B. TERMINATION.
1. FOR CAUSE. Either party may terminate the Agreement in the event
of a material default by the other party on any of its
representations, warranties or obligations hereunder by the
following procedure: (i) the non-defaulting party will provide the
defaulting party with written notice specifying the particulars of
the default; (ii) if the default is not cured within 30 days after
such notice is given, the non-defaulting party may terminate the
Agreement immediately upon providing written notice to the
defaulting party.
2. INSOLVENCY. In addition, either party may terminate the Agreement
upon 30 days written notice in the event that the other party (i)
becomes bankrupt or insolvent; (ii) enters into liquidation or has a
receiver appointed; or (iii) fails to continue its relevant business
activities for a period of at least 14 days.
3. OTHER GROUNDS. ICT may terminate the Agreement in the event that
(i) Visa and its Regions fail to provide ICT with the opportunity
(at ICT's own cost) to present and demonstrate the Service to at
least 10 substantial Members, including at least one of its largest
Members in each target Region, within the first 12 months of the
Term, and (ii) such failure persists for 30 days after ICT's
provision of written notice hereunder. Visa may terminate this
Agreement in the event that (x) Visa determines in its discretion
that ICT has failed to adhere to adequate standards of quality,
timeliness, or customer service in its offering to or provision of
the Service to any Member or Region, and (y) such failure remains
uncured to Visa's reasonable satisfaction for a period of 30 days
following Visa's provision of written notice hereunder.
C. EFFECT OF TERMINATION. Upon provision of termination notice by either
party, and except to the extent the other party is actively attempting to
timely cure its default, both parties will engage in good faith
negotiations to arrange for a mutually satisfactory end to the Agreement.
V. INDEMNIFICATION LIMITATION OF LIABILITY.
A. BY BOTH PARTIES. Each party will indemnify and hold harmless the other
and the other's officers, directors, employees, agents, affiliates
(including without limitation separately incorporated Regions) member
financial institutions, successors and assigns (collectively a party's
"Indemnified Parties") from and against any damages, liabilities, losses,
government procedures, and costs (including reasonable attorneys' fees and
costs of suit) arising out of the indemnifying party's (i) failure to
comply with applicable laws and regulations; (ii) unauthorized use of the
other party's trademarks; (iii) negligence or willful misconduct in
connection with its performance of the Agreement; (iv) misrepresentation
or breach of any warranty, obligation or covenant of the Agreement; or (v)
customers' use of the indemnifying party's products or services, provided
that (x) such action, claim, or suit is promptly turned over to the
indemnifying party or its counsel for defense and/or settlement (with the
Indemnified Party's cooperation) and (y) such claim, action or suit does
not result directly from the Indemnified Party's negligence or willful
misconduct or breach of any provision of the Agreement.
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B. BY ICT. In addition, ICT will defend, indemnify, and hold harmless Visa
and its Indemnified Parties from and against any claim or liability that
arises out of any third party claim that any ICT Pre-Existing Intellectual
Property violates, infringes, or otherwise conflicts with the rights of
any other party.
C. LIMITATION. Neither party will be obligated to the other party for that
other party's indirect, special, consequential, or incidental damages
under any theory of liability, even if the party has been advised of the
possibility of such damages.
VI. MISCELLANEOUS.
A. RELATIONSHIP OF THE PARTIES. ICT and Visa are independent contractors,
and the Agreement does not create a partnership, joint venture,
employee/employer or other agency relationship between them.
B. ASSIGNMENT. The Agreement will be binding on and inure to the benefit
of each of the parties, their successors and assigns. It may not be
assigned or transferred, in whole or in part, without the written consent
of the other party. Any such assignment or transfer without consent will
be void.
C. NOTICES. All notices and other communications required to be given
under the Agreement will be in writing and will be deemed to have been
given (i) when personally delivered; (ii) one business day after delivery
(with a confirmation of successful transmission) by facsimile; (iii) when
delivered (and receipted for) by an overnight delivery service; or (iv)
three business days after mailing, postage prepaid, by certified mail,
addressed in each case to the contacts and addresses set forth on the
Agreement (in the case of notices to either party, a copy of any such
notice will also be delivered to the Legal Department, in care of the same
address), unless a different address will have been designated in writing.
D. NOTICE OF MATERIAL CHANGES. Each party agrees to provide the other with
immediate notice of (i) any material adverse changes in its operations or
finances that could affect the ability of that party to fully perform its
obligations hereunder or the quality of that party's performance
hereunder; (ii) any material changes in that party's ownership or
ownership structure; and (iii) any matters that are likely to result in
public dishonor or disgrace for that party, provided that, in each case,
the party receiving any information under this Section VI.D will treat all
such information, to the extent that it is not public information, as
Confidential Information.
E. GOVERNING LAW. The Agreement will be governed by the laws of the State
of California, without giving effect to its conflicts of law provisions.
F. APPLICABLE CURRENCY. Unless otherwise specifically provided herein, all
amounts expressed or described hereunder are in lawful currency of the
United States of America.
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G. ENTIRE AGREEMENT. The Agreement, and Exhibits A, B, and C thereto
constitute the entire agreement and understanding between Visa and ICT,
and there are no other agreements, representations, warranties or
understandings between Visa and ICT with respect to the subject matter
hereof. The Agreement cannot be modified except by a writing signed by
both parties.
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EXHIBIT B
VISA'S OBLIGATIONS
STRATEGIC ALLIANCE. Throughout the Term, Visa will cooperate with ICT to
develop, implement and enhance the strategic alliance contemplated herein (the
"Alliance"), including by working with ICT to implement Service marketing and
communications efforts aimed at achieving business goals for both parties. To
this end, Visa will perform the following obligations.
I. PROMOTIONAL ACTIVITIES. Visa will actively promote the Service to its Regions
and encourage promotion of the Service to Members, including via the following
activities:
A. SALES KIT. Visa International will develop a promotional sales kit that
showcases the Service (the "Sales Kit"). Visa shall bear all costs for
development and production of the Sales Kit. ICT shall have the right to
review and approve all artwork, marketing concepts and statements, and
other content of the Sales Kit in accordance with Section II.B. of Exhibit
A.
B. REGIONAL COORDINATION. Visa will share the Sales Kit with each of the
Visa's target Regional offices with the intent to use the core content as
required to develop a Region-specific marketing program. Subject to the
agreement of each particular Region, ICT will have the option of working
with Visa Regional offices directly on development of the marketing
program, and Visa will provide ICT with contact information for each of
the target Regional offices. ICT participation with the Regional offices
may include, but not be limited to, selecting Members within the Region to
be approached and accompanying representatives of the Regional offices to
make presentations to such Members. ICT acknowledges and agrees that at
the time of signing this Agreement, Visa had already begun to satisfy its
obligations under this Section I.B.
C. REGIONAL MEMBER PROMOTION. Visa will use reasonable efforts throughout
the Term to encourage its Regional offices (potentially together with ICT,
as contemplated above) to promote the Service to Members. This will
include Visa using commercially reasonable efforts to facilitate Alliance
and Service presentations by ICT (at ICT's own cost) to Visa's target
Regional offices within the first six months of the Term. Visa will
continue to monitor and be involved in the implementation of the
Alliance's activities on a global basis and will provide ICT with regular
feedback reports in that regard. ICT acknowledges and agrees that at the
time of signing this Agreement, Visa had already begun to satisfy its
obligations under this Section I.C.
Visa's promotional efforts contemplated herein will include, without
limitation, efforts to ensure that ICT is provided with the opportunity to
present and demonstrate (at its own cost) the Service to appropriate
Members in each of Visa's target Regions.
D. ON-LINE PROMOTIONAL ACTIVITIES. Visa will permit ICT to promote the
relationship contemplated hereunder in ICT's website and other marketing
material.
E. TRADE, INDUSTRY ACTIVITIES. Visa will consider in good faith
accommodating ICT presence and visibility in connection with Visa's
operation of or participation in industry and Member events, including
without limitation by allowing ICT to share occupancy in Visa booths and
to operate its own demonstration at Member gatherings as may be specified
in the agreed regional marketing plans.
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II. EXTERNAL COMMUNICATIONS AND PR. Visa will write and coordinate press
releases in support of the Alliance as it is implemented in various areas
of the world, subject in each case to ICT approval. Without limiting the
foregoing, this may include a launch announcement that the companies
intend to explore business and technical developments in powered card
technology and further announcements of specific sales or development
activities.
III. ALLIANCE MEETINGS. Subject to mutual agreement with respect to date,
time and location, and at Visa's cost, Visa agrees to participate, at
least twice annually, in joint Alliance planning meetings for discussing
proprietary products, concepts, plans, and for reviewing business and
Alliance results and other initiatives. Visa agrees to consider in good
faith ongoing adjustments to the Alliance activities contemplated
hereunder where justified in order to maximize the parties' mutual
benefits throughout the Term.
IV. INTRODUCTIONS. Throughout the Term, Visa will use commercially
reasonable efforts to identify appropriate potential partners and make
appropriate introductions to ICT in connection with powered card or other
agreed-upon technologies. Such efforts are in addition to the technology
alliance described in Section VI of Exhibit A. Any technology resulting
from work undertaken by ICT in cooperation with a partner introduced by
Visa shall be owned by ICT and/or such partner as they may determine. Visa
may also, at its own discretion, refer new technology solution developers
to ICT for evaluation.
V. EXCLUSIVITY. For the period beginning on [the first day of the Term and
ending on the two-year anniversary of the launch of the first Member
launch of the Service arising out of the promotional efforts contemplated
herein], Visa will not enter into a similar agreement with any other party
to develop and/or promote power-enabled cards.
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EXHIBIT C
ICT'S OBLIGATIONS
STRATEGIC ALLIANCE. Throughout the Term, ICT will cooperate with Visa to
develop, implement and enhance the Alliance, including by working with Visa to
implement Service marketing and communications efforts aimed at achieving
business goals for both parties. To this end, ICT will perform the following
obligations.
I. PROMOTIONAL ACTIVITIES. ICT will actively promote its Service as contemplated
in Exhibit B to the Agreement, including via the following activities:
A. INFORMATION UPDATES. ICT will maintain provision to Visa of complete
current information about the Service as necessary for Visa to perform its
obligations hereunder. Without limiting the foregoing, ICT will provide
Visa with the results of its U.S.-based consumer research study to support
the sales efforts contemplated herein. Visa acknowledges and agrees that
at the time of signing this Agreement, ICT had already substantially
satisfied its obligations under this Section I.AB.
B. REGIONAL AND MEMBER FOLLOW UP. ICT will cooperate reasonably with Visa
and Visa Regional personnel to conduct the marketing activities
contemplated herein. ICT will follow up on all Member leads in a timely
and professional manner and will work in good faith towards reaching
appropriate agreements with Members and providing agreed-upon products and
services to the Members thereafter.
C. CONTINUING IMPROVEMENTS. ICT will keep Visa appraised of market and
technical developments and continuously seek to identify needed technical,
promotional and communications improvements so that the parties can
continuously hone joint product development, sales and marketing
strategies.
D. TRADE, INDUSTRY ACTIVITIES. ICT will endeavor, where commercially
reasonable, to honor all Visa requests that ICT participate in industry or
Member meetings or events in connection with promotion of the Service
hereunder.
II. PROVISION OF SERVICE. ICT will use commercially reasonable efforts to ensure
that the Service is implemented hereunder with a high degree of care and
customer service focus and to the reasonable satisfaction of all Visa Regions
and Members who agree to work with ICT in connection with the Service. ICT will
continuously seek to identify and implement needed Service improvements based on
its experience hereunder. Any Member-specific development requests will be
negotiated between ICT and the Member directly.
III. TRACKING AND REPORTING. At the end of every six-month period during the
Term, ICT will provide Visa with available data on Service provision to Members
adequate to permit Visa to evaluate the performance of the parties' respective
Alliance activities.
IV. EXCLUSIVITY. For the period beginning on [the first day of the Term and
ending on the two-year anniversary of the launch of the first Member launch of
the Service arising out of the promotional efforts contemplated herein], ICT
will not offer or provide the Service in connection with any Visa
Competitor-branded payment service products or service. As used herein, "Visa
Competitor" means American Express, MasterCard, Europay, JCB, Diners Club, Xxxxx
Xxxxxxx and Discover.
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V. ALLIANCE MEETINGS. Subject to mutual agreement with respect to date, time and
location, and at ICT's cost, ICT agrees to participate, at least twice annually,
in joint Alliance planning meetings for discussing proprietary products,
concepts, plans, and for reviewing business and Alliance results and other
initiatives. ICT agrees to consider in good faith ongoing adjustments to the
Alliance activities contemplated hereunder where justified in order to maximize
the parties' mutual benefits throughout the Term.
VI. RENEWAL RIGHTS. ICT will provide Visa with a Protected Right of First
Negotiation as to (i) renewal of the Agreement on mutually agreeable terms; and
(ii) agreements similar to this one in connection with any payment
services-related device or technology that is developed or offered by ICT, on
its own or together with any third party. For the purposes of the Agreement,
"Protected Right of First Negotiation" means that, during the Term, in the event
that ICT wishes to consider entering into such an agreement, it will notify Visa
in writing and Visa will have a 90 day period in which to express its interest
or lack of interest in pursuing an agreement. In the event that Visa timely
indicates interest, the parties will negotiate in good faith towards a
definitive agreement on the relevant subject matter during the 90 day period
following (in the case of (i) above, such 90 day period will not end before the
end of the Term). During that period, ICT will not enter into discussions with
any Visa Competitor as to such subject matter. In the event that, at the end of
the 90 day negotiation period, ICT and Visa have not entered into an agreement
or memorandum of understanding on the relevant subject matter, ICT may initiate
negotiations with any third party in connection therewith.
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