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EXHIBIT 10.50
SOFTWARE LICENSE AND DEVELOPMENT AGREEMENT
BETWEEN
INTERCEPT SYSTEMS, INC.
AND
PHOENIX INTERNATIONAL LTD., INC.
DATED: DECEMBER 31, 1997
Parties:
Intercept Systems, Inc., a Georgia corporation ("Intercept")
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Phoenix International Ltd., Inc., a Florida corporation ("Phoenix")
000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
THIS LICENSE AND DEVELOPMENT AGREEMENT (this "Agreement") is
effective as of the date first set forth above by and between Phoenix and
Intercept. Phoenix has acquired certain rights from Multisoft, an Ecuador
company, in certain software and related documentation for financial
institutions for the operation and administration of automatic teller machines,
which software Phoenix has further developed and modified. Intercept desires to
further develop such software and integrate it with Intercept's existing
software programs, and to market such modified programs with Intercept's other
products. In consideration of the premises set forth above, and of the
obligations herein made and undertaken and other good and valuable
consideration, the parties hereby agree as follows:
1 DEFINITIONS
Capitalized terms used in this Agreement shall have the following definitions:
1.1 Confidential Information. Any competitively sensitive or secret business,
marketing, or technical information, disclosed by one party to the other,
including all source and object code versions of all software, and all
documentation, technical manuals, design and development documentation, and all
other non-public information relating to either party's software or business.
Notwithstanding the foregoing, Confidential Information does not include
information which (i) becomes generally available to the public other than as a
result of a disclosure by the receiving party or its representatives, (ii) was
available to a party prior to its disclosure to such party by the other party
or its representatives, provided the receiving party has no knowledge that such
information
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was obtained, directly or indirectly, from a source that was bound by a
confidentiality agreement with the disclosing party or other obligation of
secrecy to the disclosing party or its representatives, (iii) becomes available
to a party, directly or indirectly, from a source other than the other party or
its representatives, provided that such source is not bound by a
confidentiality agreement with the disclosing party, or (iv) that is
independently developed by the receiving party without reference to any
Confidential Information of the disclosing party.
1.2 Derivative Work. A work that is based upon one or more preexisting works,
such as a revision, modification, translation, abridgment, condensation,
expansion, or any other form in which such a preexisting work may be recast,
transformed, or adapted, and that, if prepared without authorization by the
owner of the preexisting work, would constitute a copyright infringement.
1.3 Documentation. The printed material relating to the Program, including all
instructional, technical and development documentation.
1.4 Enhancement. A change or addition to the Program or Documentation, that
improves its function, adds new function, or enhances its performance,
including changes, additions, modifications, new releases, new versions, error
corrections and bug fixes.
1.5 Intellectual Property Rights. All copyrights, patent, patent rights, trade
secrets, trademarks, service marks, Confidential Information, know-how and
other intellectual property rights in software or documentation owned or
claimed by any person under the laws of the United States, or any other
country.
1.6 Intercept Product. Derivative Works of the Program created by Intercept.
1.7 Program. Computer programming code, including source code (human-readable),
and object code (machine-readable), and associated procedural code, including
all current and subsequent Enhancements, as more fully described in Exhibit A.
2 LICENSE GRANT
2.1 Program License. Subject to termination pursuant to Section 5 below,
Phoenix hereby grants Intercept a non-exclusive worldwide, perpetual,
irrevocable right and license to install, use, copy, modify, adapt, translate,
and create Derivative Works of (under sublicense or otherwise) all versions of
the Program, including all source code and object code, and to authorize others
to do some or all of the foregoing subject to the limitations set forth herein.
2.2 Documentation. Subject to termination pursuant to Section 5 below, Phoenix
hereby grants Intercept a non-exclusive worldwide, perpetual, irrevocable right
and license to translate, change, modify and distribute the Documentation.
2.3 Derivative Works. As part of the above license, Intercept shall have the
right to create Derivative Works and Enhancements to the Program and
Documentation, including without limitation, converting the Program to run in
conjunction with Intercept's software, translating the Program and
Documentation into other languages as required by Intercept's business
practices, and
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modifying the Program to integrate it into Intercept's software product line.
The Program and Documentation as so modified shall be referred to herein as the
"Intercept Products". Intercept shall have an exclusive, worldwide, perpetual,
irrevocable right and license to use, install, market, license, sublicense, and
distribute the Intercept Products, and to authorize others to do some or all of
the foregoing, provided however, that Intercept may not license or provide the
source code of the Program to any third party without the written consent of
Phoenix. Intercept is authorized to use the Intercept Products and the Program
as necessary to implement, install, train, support and maintain the Intercept
Products for end-users and otherwise as necessary to exercise its rights
hereunder.
2.4 Fee. In exchange for the foregoing rights, Intercept shall pay Phoenix a
total of $350,000, due and payable within 45 days following the execution of
this Agreement.
3 PHOENIX OBLIGATIONS
3.1 Initial Deliveries. Phoenix shall deliver to Intercept one copy of the
Program (in object code and source code form) and Documentation within ten days
following the date of this Agreement.
3.2 Assistance.
(a) Phoenix will provide assistance and support to Intercept at no charge
as required by Intercept to create the Intercept Products, provided that
Intercept will pay all of Phoenix's reasonable travel and lodging expenses.
(b) Phoenix will provide additional assistance to Intercept as reasonably
requested on a time and materials basis at Phoenix's then current rates for
such assistance, plus reasonable travel and lodging expenses.
4 LIMITED WARRANTY AND LIMITATION OF LIABILITY
4.1 Warranty. Phoenix warrants that it has received the right from Multisoft to
grant all of the rights granted to Intercept in the Program, Documentation, and
all Enhancements delivered to Intercept hereunder, and that it has all rights
necessary for the grant of rights and licenses under this Agreement.
4.2 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, PHOENIX DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATING TO THE PROGRAM OR
DOCUMENTATION OR ANY USE THEREOF, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY
WHATSOEVER AS TO THE FITNESS FOR A PARTICULAR USE OR THE MERCHANTABILITY OF THE
PROGRAM OR DOCUMENTATION.
4.3 Limitation of Liability. In no event shall either party be liable to the
other for any indirect, special, incidental, or consequential damages
(including lost profits).
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5 TERMINATION; EFFECT OF TERMINATION
5.1 Agreement Termination. Phoenix may terminate the licenses granted under
this Agreement upon the material breach by Intercept of its obligations
hereunder if such breach is not cured within 30 days following notice thereof
from Phoenix.
5.2 Consequences. Upon the termination of the licenses as set forth above,
Intercept shall immediately return to Phoenix all of the software and
documentation provided by Phoenix. In such case, Intercept may retain the
Intercept Products and a license to use, modify, enhance, and distribute the
Intercept Products as necessary to continue to provide maintenance and support
for its customers who have already licensed the Intercept Products until all
such licenses have expired.
6 INDEMNIFICATION
6.1 Phoenix Indemnification. Phoenix agrees to, and does hereby, indemnify and
hold harmless Intercept from any and all claims, demands, or actions alleging
that the Program or Documentation (including any Enhancements), in the form
delivered by Phoenix, infringes or abridges any third-party Intellectual
Property Rights in violation of the warranty in Section 4.1 above.
6.2 Intercept Indemnification. Intercept agrees to, and does hereby, indemnify
and hold harmless Phoenix from any and all claims, demands, or actions from or
relating to Intercept Products, or use by customers of Intercept Products, and
based on or related to Intercept's performance, nonperformance, infringement of
third-party Intellectual Property Rights, representations or statements made,
or other actions with respect to the Intercept Products, but only to the extent
such claims, demands or actions do not arise from any act or omission of
Phoenix or from infringement of Intellectual Property Rights by the portion of
the Intercept Products provided to Intercept by Phoenix.
6.3 Conditions. The foregoing indemnities shall be contingent upon the
following: The party seeking to enforce the indemnity against the other party
shall give written notice to the other party of any claim, demand, or action
for which indemnity is sought; shall fully cooperate in the defense or
settlement of any such claim, demand, or action; and shall obtain the prior
written agreement of the indemnifying party to any settlement or proposal of
settlement.
7 CONFIDENTIALITY
7.1 Confidentiality. Both parties hereto desire to maintain the confidentiality
of the Confidential Information and are making it available only upon the terms
and conditions set forth below and they hereby agree:
(a) Not to use any portion of the Confidential Information for any purpose,
except pursuant to the rights and obligations set forth in this Agreement;
and
(b) Not to disclose any portion of the Confidential Information to any
person except the parties' respective officers, directors, employees, and
representatives who need to know such information in connection with this
letter or for the purpose of entering into a definitive agreement and who
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agree to be bound by confidentiality obligations consistent with the
provisions of this Agreement.
7.2 Exceptions. If either of the parties are requested or required (by oral
questions, interrogatories, requests for information or documents, subpoena,
civil investigative demand or similar process) to disclose any Confidential
Information of the other, the party which is subject to such request will
provide the other party with prompt notice of such request(s) so that such
other party may seek an appropriate protective order and/or waive compliance
with the provisions of this letter agreement. If, in the absence of a
protective order or the receipt of a waiver hereunder a party is nonetheless,
in the opinion of its counsel, compelled to disclose the Confidential
Information of the other party to any tribunal or else stand liable for
contempt or suffer other censure or penalty, that party may disclose such
information to such tribunal without liability hereunder.
7.3 Remedies. As money damages would not be a sufficient remedy for any breach
of this paragraph of this letter agreement the parties hereto shall be entitled
to specific performance as a remedy for any such breach. Such remedy shall not
be deemed to be the exclusive remedy for any such breach of this letter
agreement but shall be in addition to all other remedies available at law or
equity.
8 MISCELLANEOUS
8.1 Title. It is expressly understood and agreed that, as between Phoenix and
Intercept, all right, title, and interest in and to the Program and
Documentation (including any Enhancements) and any other material furnished to
Intercept under this Agreement vests solely and exclusively in the Phoenix, and
Intercept shall neither derive nor assert any title or interest in or to such
materials except for the rights of use or licenses granted under this
Agreement. Intercept shall own all changes in the Program and Documentation
made by or at the direction of Intercept, and the Derivative Works to the
extent they are different from the Program.
8.2 Status. Nothing herein shall be construed to create a partnership, joint
venture, or agency relationship between the parties hereto.
8.3 No Conflict of Interest. Intercept and Phoenix represent and warrant that
they have full power and authority to undertake the obligations set forth in
this Agreement and that they have not entered into any other agreement that
would render them incapable of satisfactorily performing their obligations
hereunder, or that would place them in a position of conflict of interest or be
inconsistent or in conflict with their obligations hereunder.
8.4 Compliance with Law. Intercept agrees that it shall comply with all
applicable laws and regulations of governmental bodies or agencies in its
performance under this Agreement.
8.5 No Assignment. Intercept represents that it is acting on its own behalf and
is not acting as an agent for or on behalf of any third party and further
agrees that it may not assign its rights or obligations under this Agreement
without the prior written consent of Phoenix, except that Intercept may assign
its rights to a successor to substantially all of its business or assets or to
any owner of 30% or more of its equity or any of its subsidiaries.
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8.6 Notices. All notices and other communications required or permitted to be
given under this Agreement shall be in writing and shall be considered
effective upon delivery when deposited with United Parcel Service, FedEx, or in
the U.S. Mail, return receipt requested, addressed to the appropriate party at
the address noted above, unless a different address shall have been designated
in writing.
8.7 No Waiver. Neither party shall by mere lapse of time, without giving
notice or taking other action hereunder, be deemed to have waived any breach by
the other party of any of the provisions of this Agreement. Further, the waiver
by either party of a particular breach of this Agreement by the other shall not
be construed or constitute a continuing waiver of such breach or of other
breaches of the same or other provisions of this Agreement.
8.8 Intercept Stock. Phoenix shall not buy or sell any of the shares of the
publicly traded stock of Intercept as long as Phoenix has access to non-public
information regarding Intercept's business or technology.
8.9 Force Majeure. Neither party shall be in default if failure to perform any
obligation hereunder is caused solely by supervening conditions beyond that
party's control, including acts of God, civil commotion, strikes, labor
disputes, and governmental demands or requirements.
8.10 Scope of Agreement; Amendment. The parties hereto acknowledge that each
has read this Agreement, understands it, and agrees to be bound by its terms.
The parties further agree that this Agreement is the complete and exclusive
statement of agreement and supersedes all proposals (oral or written),
understandings, representations, conditions, warranties, covenants, and other
communications between the parties relating hereto. This Agreement may be
amended only by a subsequent writing that specifically refers to this Agreement
and is signed by both parties, and no other act, document, usage, or custom
shall be deemed to amend this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by respective duly authorized representatives as set forth below.
INTERCEPT SYSTEMS, INC. PHOENIX INTERNATIONAL LTD., INC.
By:/s/ XX Xxxxxxx By: /s/ Xxxxxx Xxxxxxxxxx
---------------------------- -------------------------------
Signature Signature
XX Xxxxxxx Xxxxxx Xxxxxxxxxx
------------------------------- ----------------------------------
Print Name Print Name
CEO Chm. & CEO
------------------------------- ----------------------------------
Print Title Print Title
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EXHIBIT A
SOFTWARE DESCRIPTION
English version of:
Multisoft ATM Software for NT
Multisoft Voice Response System
Multisoft TranPro
each as modified by Phoenix, and including all associated drivers and ancillary
software
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