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EXHIBIT 10.2
CONFIDENTIAL TREATMENT
REQUESTED
PHOENIX INTERNATIONAL LTD., INC.
COOPERATIVE MARKETING AGREEMENT
Marketing Partner: International Turnkey Systems Date: March 26, 1997
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(X) Corporation ( ) Partnership
( ) Limited Partnership ( ) Limited Liability Company
Country/State of Organization: Kuwait
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Address: x/x X.X. Xxx 00000
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Xxxxx, 00000 Xxxxxx
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Attention: Senior Marketing Manager
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Fax:
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This COOPERATIVE AGREEMENT (this "Agreement") is entered into as of
the date first set forth above by and between Phoenix International Ltd., Inc.
a Florida corporation ("Phoenix"), and the party first identified above as the
Marketing Partner ("Marketing Partner"). The parties hereto, intending to be
legally bound, agree as follows:
1. APPOINTMENT. Subject to the terms and conditions of this Agreement,
the Marketing Partner hereby agrees to enter into a cooperative
marketing relationship with Phoenix as set forth in the relationship
addendum(a) attached hereto and listed below (the "Addenda") :
Relationship Addendum - Marketing Partner
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Training and Support Addendum
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2. DEFINITIONS. As used in this Agreement or Exhibits or Addenda
attached hereto, capitalized terms shall have the following meanings:
2.1 Annual Price List means the price list attached hereto as
Exhibit C, as reviewed and amended by the parties as set forth in
Section 5 below.
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2.2 Confidential Information means any business, technical or
other information furnished by Phoenix to the Marketing Partner or
disclosed to the Marketing Partner as a result of examination or
inspection of Phoenix's facilities or product prototypes.
Confidential Information shall in all cases include all object and
source code, development level documentation, and technical
information regarding the Software and all marketing and product
development information provided by Phoenix. Information which is
disclosed orally will be deemed to be Confidential Information
provided that it is identified as confidential at the time of
disclosure.
2.3 Documentation means the documentation associated with the
Software as produced and provided by Phoenix to the Marketing Partner
with the Software.
2.4 Eligible Prospect means a retail bank organized and doing
business exclusively in the Territory.
2.5 End Users means customers presented to Phoenix by the
Marketing Partner who license the Software under an End User License.
2.6 End User License means the form of agreement or agreements
applicable to the license of the Software as provided by Phoenix to
the Marketing Partner from time to time. All End User Licenses shall
be in English and governed by the law of choice of Phoenix.
2.7 Intellectual Property Rights means all copyrights and design
rights, whether registered or unregistered, patents, patent
applications, patent registration rights, know-how, trade secrets,
Confidential Information, and other intellectual property related to
or arising in the Software or Documentation, including all applicable
architecture, designs, modules, routines, programming, command
structures, interfaces, and any Modifications thereto.
2.8 Maintenance means making Modifications to the Software to
correct verifiable and reproducible errors reported to Phoenix and
includes all error correction, maintenance and emergency releases and
other modifications required as a result of changes made by Phoenix
which directly affect any of the Software.
2.9 Modification means a work which is based upon one or more
preexisting works, such as a revision, modification, translation,
abridgment, condensation, expansion, or any other form in which such
preexisting works may be recast, transformed, or adapted, and shall
include any work that incorporates or is combined with such a
preexisting work or any portion thereof.
2.10 Modify means, with respect to any of the Software, to make a
Modification.
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2.11 New Release means a release of any of the Software to
introduce changes or additions to the Software for purposes of error
correction or enhancement of functionality, performance, or features.
2.12 Related Expenses mean all reasonable travel, meal, lodging and
other living expenses and all expenses for materials or equipment
incurred by Phoenix in the provisions of services or otherwise in the
performance of its duties hereunder.
2.13 Support means the provision of relevant assistance in the form
of telephone assistance and consultation, personnel, and materials for
the implementation and continued use of the Software, including any
Modification which Phoenix offers as an addition to, replacement for,
or option with such Software under this Agreement.
2.14 Software means the Phoenix software set forth in Exhibit A
attached hereto, as such Exhibit may be amended from time to time in
writing.
2.15 Territory means the regions set forth on Exhibit B, as such
regions exist as of the date of this Agreement.
2.16 Trademarks means the trademarks, service marks and trade names
used by Phoenix in connection with its software, products and
services, whether registered or unregistered.
3. LICENSE.
3.1 License Grant. Subject to the terms of this Agreement, and
only as appropriate under the applicable Relationship Addendum(s),
Phoenix hereby grants to the Marketing Partner the following revocable
rights and licenses to use the Software at ITS premises in Kuwait:
(a) To use the Software as reasonably required to fulfill
its obligations and exercise its rights under this Agreement
and in accordance with the Relationship Addendum(s);
(b) Subject to completion of sufficient training as
applicable and as required by Phoenix from time to time, to
use the Software for back up, demonstrations, and evaluations
involving Eligible Prospects; and
(c) To use the Trademarks relating to the Software,
provided, however, that such use shall be subject to
reasonable advertising and promotion guidelines which Phoenix
may provide from time to time. Phoenix reserves the right to
disallow any use of the Trademarks which would in any way, in
Phoenix's opinion, harm the validity or value of the
Trademarks.
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3.2 Restrictions. The Marketing Partner shall not:
(a) Copy, adapt, modify or reproduce the Software in any
manner whatsoever except as reasonably necessary for
demonstration, marketing, backup and archival purposes or as
otherwise permitted in attached Addenda;
(b) Provide the Software to any third party except
pursuant to a fully executed End User License;
(c) Use the Software in production for the benefit of any
third party, except as otherwise allowed in a Relationship
Addendum attached hereto or as otherwise provided by written
agreement signed by both parties; or
(d) Use the Software or Documentation or any Confidential
Information that it may acquire in connection with this
Agreement to develop, have developed, support, or invest in,
directly or indirectly, the development of any product which
has, entirely or partially, the same functions as any of the
Software or which would be in direct or indirect competition
with any of the Software, or to sell competing products or
services.
4. TERM
4.1 Term and Renewal. This Agreement shall become effective on
the date first set forth above and shall continue for an initial
period of three (3) years, beginning on the date first set forth
above. This Agreement shall automatically renew thereafter for
subsequent one year periods, unless and until terminated by either
party, in its discretion, by written notice at least thirty days prior
to the end of the then current term. Phoenix may terminate this
Agreement at any time on at least thirty (30) days' prior written
notice if the Marketing Partner materially breaches its obligations
hereunder, incurs a conflict of interest of significant impact, or
fails to devote reasonable effort to the license of the Software to
End Users. Notwithstanding the termination of this Agreement, Phoenix
shall continue to be entitled to any fees earned prior to and after
such termination.
4.2 Survival. Notwithstanding termination of this Agreement for
any reason, Sections 10 (Title to Intellectual Property), 11
(Confidentiality) and 14 (General) shall continue to have effect as
shall any other provisions which by their nature or necessary
implication ought or were intended to continue to have effect, and End
User Licenses of customers already granted prior to the date of such
termination shall continue to be valid.
4.3 Actions Upon Termination. Upon termination the Marketing
Partner shall:
(a) promptly cease to use, license, market or promote
the Software;
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(b) return all copies of the Software in the possession
of the Marketing Partner to Phoenix and shall cease using the
same for any purpose whatsoever except as otherwise expressly
allowed herein or in Addenda hereto;
(c) for a period of six (6) months following termination,
refer to Phoenix all prospective customers and all inquiries
received by it relating to the Software;
(d) return and deliver or cause to be returned and
delivered to Phoenix all memoranda, notes, reports, documents
or media relating to or containing Confidential Information,
including any copies or extracts thereof;
(e) certify its compliance with this Section upon the
written request of Phoenix.
5. ANNUAL PRICE LIST. Attached hereto as Exhibit C is the current
Phoenix Annual Price List which contains the license and maintenance
fees for the Software and Phoenix's professional service fees for the
Territory (the "Annual Price List"). The parties shall review and
adjust the Annual Price List annually to reflect changes in expenses,
business environment, and other factors as reasonable or necessary.
If the parties cannot reach agreement on changes to the Annual Price
List, final authority to set the Annual Price List shall reside with
Phoenix.
6. OBLIGATIONS OF THE MARKETING PARTNER
6.1 Customer Contacts. During the term of this Agreement, the
Marketing Partner will work exclusively with Phoenix with respect to
any business opportunity presented to the Marketing Partner by Phoenix
or obtained by the Marketing Partner as a result of the working
relationship of the Marketing Partner with Phoenix.
6.2 Qualified Resources and Personnel. The Marketing Partner
shall employ suitably qualified and trained personnel in order to
perform its obligations hereunder, and under any End User License,
support, or other agreement with an End User related to the Software.
The Marketing Partner shall at its own expense obtain, license, and
maintain the hardware, network, software, database management systems,
and telecommunications resources necessary for the proper operation of
the Software in accordance with the Phoenix International Network
Design & Equipment Standards, as amended from time to time, along with
such other resources as Phoenix may reasonably require from time to
time for the operation of the Software, conduction of sales
demonstrations and evaluations, and for the provision by Phoenix of
Support or Maintenance hereunder. Phoenix may approve alternate
hardware, software, or telecommunications configurations at its sole
discretion upon the request of Marketing Partner.
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6.3 End User Vendor Selection. Marketing Partner will allow each
End User to select the hardware system it will use with the Software,
subject only to certification of compatibility by Phoenix, and
Marketing Partner will facilitate the procurement and support of such
system. If requested or required by End Users and/or determined by
Phoenix to be necessary or advisable, Marketing Partner and Phoenix
will work in conjunction with third parties (selected by End User of
otherwise) who will provide services to the End User, including
without limitation systems integration, software development and
modification, consulting, implementation, support and/or maintenance
services.
6.4 End User Compliance. The Marketing Partner shall inform
Phoenix of all known breaches by End Users of their agreements with
Phoenix or the Marketing Partner.
6.5 Notices, Logos and Marks. The Marketing Partner shall not
alter, erase or obscure any notices, legends, or trademarks or alter
any indications of ownership such as copyright, serial number or any
other designations or security provisions featured on copies of the
Software and Documentation, and shall include all such features on all
copies of the Software and Documentation made by the Marketing
Partner.
6.6 Copies of Materials. The Marketing Partner shall send to
Phoenix copies of all advertising, marketing and product material
related to the Software created or to be used by the Marketing
Partner.
6.7 Legal Compliance. The Marketing Partner shall insure
compliance with all laws, including without limitation tax, import,
and export laws, governing the conduct of business in the Territory or
in any country in which the Marketing Partner operates or markets or
sells the Software. Marketing Partner shall indemnify and hold
Phoenix harmless from and against any and all claims, losses or
damages arising out of or related to Marketing Partner's failure to
comply with any law.
7. PHOENIX'S OBLIGATIONS
7.1 Copies of the Software. Phoenix shall provide the Marketing
Partner with a reasonable number of copies of the Software and
Documentation as necessary for the Marketing Partner to fulfill its
obligations and exercise its rights hereunder. All Software and
Documentation shall be provided in English.
7.2 Maintenance and Support. Phoenix shall provide the following
services related to the Software during the Term of this Agreement:
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(a) Support. Phoenix shall provide Support and
Maintenance to the Marketing Partner for the then current
release and the immediately preceding release of the Software
which have been provided to the Marketing Partner. In order to
assist in the provision of Maintenance, the Marketing Partner
shall notify Phoenix promptly following the discovery of any
defect in the Software, and upon the request of Phoenix, the
Marketing Partner shall submit to Phoenix a listing of output
and any other data that Phoenix may require in order to
reproduce the error and the operating conditions under which
the error occurred or was discovered.
(b) Upgrades. Phoenix shall provide the Marketing
Partner with a copy of each New Release of the Software as
Phoenix may from time to time issue to its customers
generally. Phoenix shall provide reasonable telephone support
to assist in the installation and operation of each New
Release. For any particular New Release to operate properly,
the Marketing Partner must have installed all prior New
Releases.
(c) Telephone Support. Phoenix shall maintain a
telephone support line during hours to be designated by
Phoenix from time to time, which in any case shall cover at
least 8:30 a.m. to 5:30 p.m. Monday through Friday, Orlando,
Florida time. Support in response to questions which are
outside the intended scope of this Agreement may be subject to
an additional charge.
7.3 Exceptions. The following matters are not covered by
Maintenance or Support under this Agreement:
(a) Any problem resulting from the misuse, improper use,
or damage of any of the Software;
(b) Any problem caused by modifications made to the
Software other than those made by Phoenix; or
(c) Any problem resulting from the use of the Software
with software, hardware, network resources, or other operating
environments not approved in writing by Phoenix.
Phoenix may, at its discretion, provide support for any
problems caused by any of the foregoing, subject to payment of
additional fees for such services. If during the provision of
Support or Maintenance, Phoenix determines that a problem is
caused by any of the foregoing, Phoenix may charge additional
fees for the diagnostic work which was required to make such
determination.
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CONFIDENTIAL TREATMENT REQUESTED - XXXXX
7.4 Expenses for Maintenance and Support. The Marketing Partner
shall pay 50% of Phoenix's fees for Support and Maintenance as set
forth in the Annual Price List plus 100% of Related Expenses incurred
in the provision of Maintenance or Support.
8. TRAINING. Phoenix shall provide training and assistance to the
personnel of Marketing Partner as reasonably requested upon at least
30 days prior written notice, or such shorter period as may be
accommodated by Phoenix at its discretion. All such training shall be
done by Phoenix at XXXXXXX set forth in the Annual Price List plus
XXXXXXXX for such training. Sales and training materials will be
provided upon request at Phoenix's cost for such materials.
9. WARRANTY.
9.1 Limited Warranty. Phoenix warrants to the Marketing Partner
that the Software will, for a period of ninety (90) days after
delivery, perform substantially in conformance with Documentation (the
"Limited Warranty"). Phoenix makes no warranty that all
nonconformities or defects have been or can be eliminated from the
Software or that operation of the Software will be uninterrupted or
error free. This Limited Warranty shall not apply to (i)
Modifications made to the Software other than those made by Phoenix,
(ii) to Software damaged due to accident, abuse or neglect, or (iii)
to Software used with hardware or operating environments other than
those approved in writing by Phoenix.
9.2 Exclusive Remedy. The Marketing Partner's sole and exclusive
remedy for breach of the above Limited Warranty shall be, at the
option of Phoenix, repair or replacement of the relevant Software.
Any replacement Software shall be covered under the Limited Warranty
for the remainder of the original warranty period, or for thirty (30)
days after receipt, whichever is longer.
9.3 DISCLAIMER. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, THE
SOFTWARE IS LICENSED TO THE MARKETING PARTNER "AS IS," AND PHOENIX
DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER
ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION)
ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
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9.4 LIMITATION OF LIABILITY AND DAMAGES. PHOENIX' LIABILITY FOR
ANY AND ALL DAMAGES SHALL BE LIMITED TO THE EXCLUSIVE REMEDY SET FORTH
ABOVE. NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTERRUPTION OF
BUSINESS, OR ANY OTHER MONETARY LOSS, ARISING OUT OF THE USE OR
INABILITY TO USE THE SOFTWARE, OR FOR MISSTATEMENTS, MISTAKES OR
OMISSIONS IN THE DOCUMENTATION, EVEN IF SUCH PARTY HAS BEEN APPRISED
OF THE POSSIBILITY OF SUCH DAMAGES.
9.5 Limitation on Actions. No action, regardless of form, arising
out of this Agreement or the transactions contemplated hereunder may
be brought more than two (2) years after the cause of the action has
accrued.
9.6 Independent responsibility. Neither party shall be
responsible to any customer or End User for the quality of service or
performance of products furnished by the other party. Each party is
solely responsible for establishing the prices of its own products,
services and associated deliverables.
10. INDEMNIFICATION BY PHOENIX.
10.1 Infringement of Intellectual Property Rights. If a third
party claims that the Software infringes any patent, copyright, trade
secret, or similar Intellectual Property Rights, Phoenix shall (as
long as the Marketing Partner is not in default under this Agreement
or any other agreement with Phoenix) indemnify and defend the
Marketing Partner against such claim at Phoenix's expense, provided
that the Marketing Partner promptly notifies Phoenix in writing of any
such claim, allows Phoenix to control all negotiations and litigation
related thereto, and cooperates with Phoenix in the defense and
disposition of such claim, including any related settlement
negotiations.
10.2 Limitations. If such a claim is made or appears possible,
Phoenix may, at its option, (i) secure for the Marketing Partner the
right to continue to use the Software, or (ii) modify or replace the
Software so it is non-infringing. Phoenix has no obligation hereunder
for any claim based on a modified version of the Software which has
not been approved by Phoenix, or for any combination, operation or use
of the Software with a non-approved operating environment or with any
program, product, data or apparatus not approved in writing by
Phoenix. Phoenix shall have no obligation hereunder for any claim
based on theories of law that are not substantially equivalent to
laws, treaties and conventions applicable to U.S. patents, copyrights,
trade secrets, and similar intellectual property rights. THIS SECTION
12 STATES PHOENIX' ENTIRE OBLIGATION TO THE MARKETING PARTNER WITH
RESPECT TO MATTERS OF TITLE OR ANY CLAIM OF INFRINGEMENT THEREOF.
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11. TITLE TO INTELLECTUAL PROPERTY. All right title and interest in and
to all copies of the Software and Documentation and all Intellectual
Property Rights pertaining thereto shall vest exclusively with
Phoenix, including the Intellectual Property Rights in all
Modifications and other related works created by or for Phoenix, the
Marketing Partner, or any End User, including their personnel and
permitted agents or contractors. To the extent rights in
Modifications and all Intellectual Property Rights therein do not
automatically and fully vest exclusively in Phoenix, the Marketing
Partner agrees to and hereby does assign to Phoenix all such rights,
and shall execute all such other agreements as Phoenix may require to
effect such assignment. To the extent Modifications are produced by or
under the supervision of the Marketing Partner with the approval of
Phoenix, Phoenix hereby grants to the Marketing Partner a
non-transferable, and royalty free license to reproduce, license and
distribute such Modifications, but only to the extent they are
marketed and licensed or sold to End Users for use solely with duly
licensed versions of the Software pursuant to End User Licenses in
effect with Phoenix.
12. CONFIDENTIALITY
12.1 Non-Disclosure. Except as otherwise provided herein or as
allowed by the prior written consent of Phoenix, for the term of this
Agreement and for a period of three (3) years following the
termination of this Agreement, the Marketing Partner shall (a)
receive all Confidential Information in strict confidence, (b) use
the same degree of care which it uses to protect its own confidential
information to maintain the confidentiality and secrecy thereof, (c)
disclose the Confidential Information, and permit the Confidential
Information to be disclosed, only to employees of the Marketing
Partner who need access to the Confidential Information to carry out
the terms and intent of this Agreement, and (d) use the Confidential
Information only in furtherance of its rights and obligations set
forth in this Agreement. Both parties shall keep confidential the
terms and conditions of this Agreement, but not its existence, and all
other information which is designated in writing as confidential by
one party to the other. Notwithstanding the foregoing, the Marketing
Partner may make such disclosures as may be required by order of a
court of competent jurisdiction, administrative agency or other
government body, or by law rule or regulation, provided, however, that
to the extent possible, the Marketing Partner gives Phoenix prior
written notice of such requirement and assists Phoenix in its efforts
to oppose such requirement.
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12.2 Exclusions. Confidential Information shall not include any
information (a) which at the time of disclosure to the Marketing
Partner is in the public domain or thereafter enters the public domain
for reasons not attributable to any act or omission of the Marketing
Partner in breach of its obligations hereunder, (b) which the
Marketing Partner can show was in the possession of the Marketing
Partner prior to the disclosure thereof to the Marketing Partner by
Phoenix, or (c) which the Marketing Partner can show is acquired by
the Marketing Partner from an independent third party who does not
thereby breach an obligation of confidence to Phoenix and who
discloses it in good faith.
13. EXPORTS. The Marketing Partner may not export the Software outside of
the Territory nor contact any prospective End User outside of the
Territory without Phoenix's prior written approval, which may be
granted or withheld in Phoenix' sole discretion.
14. EMPLOYEES. During the term of this Agreement and for a period of
twelve (12) months thereafter, neither party will directly or
indirectly solicit for employment or employ any employee of the other
without the prior written consent of the other.
15. GENERAL
15.1 No Authority to Bind the Other Party. The parties to this
Agreement are independent contractors and, except as provided in this
Agreement or otherwise in a writing signed by both parties, neither
party is authorized to act on behalf of the other or to bind the
other. This Agreement does not establish any relationship of agency,
partnership, or joint venture. Each party shall bear responsibility
for its own employees, including terms of employment, wages, hours,
tax withholding, required insurance, and daily direction and control.
Except as otherwise set forth in an Addendum, the relationship created
hereunder is non-exclusive as to each party.
15.2 Successors and Assigns. Except as otherwise provided in this
Agreement, neither party may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other
party. Any such attempted assignment without such prior written
consent shall be void and of no force and effect. This Agreement
shall inure to the benefit of and shall be binding upon the permitted
successors and assigns of the parties hereto.
15.3 Governing Law; Jurisdiction. The construction and
interpretation of, and the rights and obligations of the parties
pursuant to this Agreement shall be governed by the laws of the State
of Florida, USA, and the federal laws of the United States.
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15.4 Force Majeure. Neither party shall be liable for any failure
of or delay in the performance of this Agreement for the period that
such failure or delay is due to acts of God, public enemy, civil war,
strikes or labor disputes, or any other cause beyond the parties'
reasonable control. Each party agrees to notify the other party
promptly of the occurrence of any such cause and to carry out this
Agreement as promptly as practicable after such cause has terminated.
15.5 Severability. In the event that any part of this Agreement is
declared by any court or other judicial or administrative body to be
null, void or unenforceable, such provision shall survive to the
extent it is not so declared, and all of the other provisions of this
Agreement shall remain in full force and effect.
15.6 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be
deemed to have been duly given: (i) on the date of service if served
personally on the party to whom notice is to be given; (ii) on the day
of transmission if sent via facsimile transmission to the facsimile
number given below, and telephonic confirmation of receipt is obtained
promptly after completion of transmission; (iii) on the second day
after delivery to FedEx or similar overnight courier or the Express
Mail service maintained by the United States Postal Service; or (iv)
upon receipt if sent otherwise. Notices shall be addressed to the
applicable party as set forth below unless an alternate address has
been provided in writing in conformance with this provision:
If to Phoenix:
Phoenix International Ltd., Inc.
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
If to the Marketing Partner, at the address first set forth above.
15.7 Amendments; Waivers. This Agreement may be amended or
modified, and any of the terms, covenants, representations, warranties
or conditions hereof may be waived, only by a written instrument
executed by the parties hereto, or in the case of a waiver, by the
party waiving compliance. Any waiver by any party of a condition, or
of the breach of any provision, term, covenant, representation or
warranty contained in this Agreement, in any one or more instances,
shall not be deemed to be nor construed as furthering or continuing
waiver of any such condition, or of the breach of any other provision,
term, covenant, representation or warranty of this Agreement.
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15.8 Public Announcements. Neither party shall make any press
release or public announcement concerning this transaction without the
prior written approval of the other party unless a press release or
public amendment is required by law or by regulations binding upon any
of the parties of their affiliates, in which case, the disclosing
party agrees to give the non-disclosing party prior notice and an
opportunity to comment on the proposed disclosure.
15.9 Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the
transactions contemplated hereby and supersedes and replaces all prior
and contemporaneous agreements and understandings, oral or written,
with regard to such transactions. All schedules and addenda hereto
and any documents and instruments delivered pursuant to any provision
hereof are expressly made a part of this Agreement as fully as though
completely set forth herein. The rights of the parties are only as
set forth herein, and there are and shall be no implied rights or
obligations whatsoever.
15.10 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but both of which shall
constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
Phoenix International Ltd., Inc.: Marketing Partner:
By: /s/ Xxxxxx Xxxxxxxxxx By:/s/ Khalid Alfarkh
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Signature Signature
Xxxxxx Xxxxxxxxxx Khalid Alfarkh Name
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(Print) Name (Print)
Chairman & CEO Sr. Marketing Manager
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Title Title
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CONFIDENTIAL TREATMENT REQUESTED - XXXXX
TRAINING AND SUPPORT ADDENDUM
Marketing Partner: Date:
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This Addendum provides additional terms defining the relationship between the
Marketing Partner and Phoenix. The terms and conditions contained herein are
in addition to those contained in the applicable Cooperative Marketing
Agreement. If any terms contained herein are inconsistent with the terms of
the Cooperative Marketing Agreement, this Addendum shall control.
1. Training and Certification. Phoenix shall provide training to
Marketing Partner's personnel in the support of the Software. Upon
satisfactory completion of such training, Phoenix shall certify certain of the
Marketing Partner's personnel to provide support of the Software to End Users.
Marketing Partner's personnel shall be trained and certified to provide XXXXX
support at a minimum by the XXX anniversary of the date of this Addendum. Upon
agreement of the parties, further training and certification for higher levels
of support may be obtained. The Marketing Partner shall pay Phoenix for all
training and certification at XXXXXX for such services as set forth in the
Annual Price List plus XXXXXXX. Training materials shall be provided at
Phoenix's cost.
2. Right to Support. Once the Marketing Partner's personnel have
completed the requisite training and have been certified for support of the
Software by Phoenix, the Marketing Partner may provide the level of support for
the Software for which it has been certified, under the direction and
supervision of certified personnel. Marketing Partner shall provide all such
support in a workmanlike manner consistent with Phoenix's professional
standards.
3. Additional License. Once the training has been completed, the
Marketing Partner shall have the additional right and license to use the
Software for the purpose of providing support to End Users as set forth herein.
4. Maintenance and Support. The Marketing Partner may enter into Support
Agreements with End Users who choose to receive support from the Marketing
Partner at the level for which the Marketing Partner has been certified. Each
such Support Agreement shall be in a form approved by Phoenix from time to
time. If, at any time, the Marketing Partner materially fails to provide
support under an agreement with an End User, Phoenix shall assume the Marketing
Partner's responsibilities under such agreement, and the marketing Partner
shall assign the agreement to Phoenix and forward to Phoenix all maintenance
and support fees received from such End User for the period for which Phoenix
assumes maintenance and support obligations, including fees received prior to
the assignment.
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5. Termination. Upon termination of the Cooperative Marketing Agreement,
the Marketing Partner may continue to provide support to End Users for the
remaining term of support agreements then in effect between Marketing Partner
and End Users, but only so long as the Marketing Partner continues to satisfy
its obligations to End Users under such agreements and has and continues to pay
all amounts due to Phoenix of whatever nature.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
Phoenix Marketing Partner
By: /s/ Xxxxxx Xxxxxxxxxx By: /s/ Khalid Alfarkh
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Signature Signature
Xxxxxx Xxxxxxxxxx Khalid Alfarkh
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Name (Print) Name (Print)
Chairman & CEO Sr. Marketing Manager
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Title Title
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CONFIDENTIAL TREATMENT REQUESTED - XXXXX
RELATIONSHIP ADDENDUM
MARKETING PARTNER
Marketing Partner: Date:
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This Addendum provides additional terms defining the relationship between the
Marketing Partner and Phoenix. The terms and conditions contained herein are
in addition to those contained in the applicable Cooperative Agreement. If any
terms contained herein are inconsistent with the terms of the Cooperative
Agreement, this Addendum shall control.
1. Marketing. Phoenix hereby grants to the Marketing Partner the
exclusive right and license, subject to the restrictions set forth
herein or in Exhibit B, to market the Software to Eligible Prospects
within the Territory. Marketing Partner shall use its best efforts to
identify and introduce Eligible Prospects to Phoenix and to
demonstrate the Software to such Eligible Prospects. The Marketing
Partner may market the Software outside the Territory only as set
forth herein.
2. End User Licenses. Each End User shall be required to enter into an
End User License directly with Phoenix. Prior to delivery of the
software to any End User, the Marketing Partner shall present an End
User License to each potential customer, shall cause all End Users to
execute an End User License, and shall forward each executed End User
License to Phoenix for acceptance and execution.
2.1 Copies of Software and Documentation. Marketing Partner shall
be responsible for delivering the requisite number of copies of the
Software and Documentation to each End User as set forth in valid End
User Licenses.
3. Collection of Fees. Marketing Partner shall be responsible for
invoicing and collecting all fees due from End Users within the
Territory. Amounts due Phoenix shall be paid promptly as set forth
herein and will be secured by an irrevocable letter of credit upon
signing of each End User License.
4. Fees.
4.1 Marketing Partner License Fee. The Marketing Partner shall
pay to Phoenix a license fee of XXXXX in each year of this Agreement,
payable in XXXXXXXX installments beginning on March 31, 1997.
Beginning in the second year of this Agreement, the annual license fee
shall be XXXXXXXXXX in the Territory who has executed an End User
License, paid all applicable license fees for the Software in the
prior year, and for which Phoenix received its royalties as se forth
herein on a timely basis, until the annual license fee reaches XXXXXX.
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CONFIDENTIAL TREATMENT REQUESTED - XXXXX
4.2 End User Fees.
(a) Amount. All End User license and maintenance fees
shall conform to the Annual Price List. Unapproved discounts
from the Annual Price List shall cause Marketing Partner's
marketing rights within the Territory to become non-exclusive.
(b) Base and Branch License Fee Royalties. Marketing
Partner shall pay to Phoenix the following percentage of all
base and branch license fees due from each End User within the
Territory:
(i) XXXXXXXXXX per the Annual Price List in
Exhibit C for each of the first XXX End Users
(ii) XXXXXXXXXXX per the Annual Price List in
Exhibit C for each subsequent End User
Marketing Partner shall forward to Phoenix XXXXXXXXXX due for
each End User within 60 business days following execution of
each End User License, and the XXXXXXXXXXXXXXXX due for each
End User within 150 days following the execution of each End
User License.
4.3 Maintenance Fee Royalties.
(a) Fees. The Marketing Partner shall pay to Phoenix the
following percentage of all Maintenance Fees due from each End
User:
(i) XXXXXXXXXXXXXXXX from the XXXXX.
(ii) XXXXXXXXXXXXXXXXX from the XXXXXXXX or the
second year's Maintenance Fee from the
XXXXXXXXX, whichever comes first.
(iii) XXXXXXXXXXXXXXXXXXXXX for all End Users.
(b) Payment. All maintenance fee royalties shall be paid
to Phoenix within 60 days after such fees are due from each
End User.
4.4 Professional Services and Development Fees. Professional
Services and Development work includes installation, conversion,
training, Modification, implementation, and consulting services.
Phoenix shall invoice Marketing Partner for Professional Services and
Development work performed by Phoenix for End Users. Marketing
Partner shall pay to Phoenix its fees for such work as set forth in
the Annual Price List plus all Related Expenses within 60 days after
invoice from Phoenix.
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CONFIDENTIAL TREATMENT REQUESTED - XXXXX
The Marketing Partner shall be responsible for billing and collecting
such fees and expenses from End Users, and may xxxx such services and
expenses at a higher rate and keep all amounts collected in excess of
amounts due Phoenix.
4.5 Hardware and Network Fees. The Marketing Partner shall keep
XXXXXXXXXXX services provided to End Users other than as set forth
above. Marketing Partner shall consult with Phoenix for certification
of all hardware and network products sold to End Users for use with
the Software.
5. Islamic Banking Product.
5.1 Development. Phoenix and Marketing Partner shall mutually
develop and program a banking product for Islamic banks based on the
Software.
5.2 Marketing and Fees. Sales of the Islamic Banking Product
within the Territory and fees therefrom shall be governed by the
royalty arrangement set forth above. Marketing Partner may also market
the Islamic Banking Product outside of the territory, subject to the
prior written approval of Phoenix on a case by case basis. Phoenix
and the Marketing Partner shall XXXXXXXXXXXXXXXXX from license of the
Islamic Banking Product by the Marketing Partner outside of the
Territory. All other terms, including payment terms shall be the same
as within the Territory. For all licenses of the Islamic Banking
Product by Phoenix or through Phoenix's other marketing channels
within the initial 7 year term of this Agreement, Phoenix shall
forward to the Marketing Partner XXXXXXXXXXXXXX received by Phoenix.
6. Complementary Products and Services. The Marketing Partner may
provide to End Users complementary products and services as certified
by Phoenix for provision to End Users with the Software. Such
products and services shall be provided pursuant to an agreement
between the End User and the Marketing Partner. Phoenix shall have the
right and opportunity to approve all such agreements, which approval
shall not be unreasonably withheld. The Marketing Partner may request
that such products and services be included in the End User License.
Phoenix will use its best efforts to include such products and
services in End User Licenses. Such products and services shall be
provided on reasonable terms and conditions no less favorable than the
terms and conditions under which the Marketing Partner offers similar
products and services to its other customers.
7. Support. If Marketing Partner has completed a Training and Support
Addendum and completed the requisite training and certification
requirements set forth therein, Marketing Partner may provide Support
to End Users. Subject to receipt of its share of the Maintenance Fees
as set forth herein, Phoenix shall provide that Support required by
End Users and not provided by Marketing Partner. If further support
is required by any
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CONFIDENTIAL TREATMENT REQUESTED - XXXXX
End User, Phoenix shall provide such support and the Marketing Partner
shall pay Phoenix the fees set forth in the Annual Price List for such
support, plus Related expenses.
8. Implementation. If the Marketing Partner has executed a Training and
Implementation Addendum and complied with the terms therein, then the
Marketing Partner may implement the software sold as a result of the
Marketing Partner's efforts. All Software not implemented by the
Marketing Partner shall be implemented by or at the direction of
Phoenix. Phoenix shall supply the Marketing Partner with one copy of
the Software and Documentation on the appropriate electronic media for
implementation for each fully executed End User License presented to
Phoenix along with Phoenix's XXXXXXXXXXXX for such End User.
9. Personnel and Training. The Marketing Partner shall assign a minimum
of one sales executive to focus exclusively on sales of the Software
in the Territory. Phoenix shall train such executive in the use of
the Software at Phoenix' offices in Orlando Florida at no cost.
10. Customization and Enhancement of the Software. Marketing Partner will
maintain a minimum of XXXXXXXXXX and XXXXXXXXXXX resource to assist
with sales support, implementation planning, requirements definition
and localization/customization specification and design work as soon
as possible, and in any case no later than the vendor of choice stage
with the first potential End User. Localization work to be provided
by Marketing Partner will consist of, at a minimum, translation of the
Software and Documentation in Arabic, support for the production of an
Islamic Banking Product, custom 3rd party interfaces, and government
regulatory support. ITS shall fund all such development work, either
independently, or passed through to End Users. The Marketing Partner
shall engage resources as necessary to meet the implementation
deadlines of the first End User. All rights in all modifications,
derivatives, and additions to the Software shall be owned by Phoenix
as set forth in the Cooperative Marketing Agreement. Assistance
provided by Phoenix for customization and enhancement work shall be
paid by the Marketing Partner XXXXXXXXXXXX set forth in the Annual
Price List, plus Related Expenses. If Marketing Partner requires
access to Phoenix Source Code to complete such Customization and
Enhancement, such access shall not be unreasonably withheld by
Phoenix.
11. Sales Assistance. Xxxxxx 0000, Xxxxxxx shall assign XXXXXXXXX to
Marketing Partner on an "as needed, as available" basis for sales
support without charge, except that the Marketing Partner shall pay
all of XXXXXXXXXX Related Expenses. In subsequent years, such sales
assistance shall be paid by the Marketing Partner at
XXXXXXXXXXXXXXXXXXX personnel set forth in the Annual Price List,
XXXXXXXXXX.
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CONFIDENTIAL TREATMENT REQUESTED - XXXXX
12. Source Code. Phoenix shall license source code for the Software to End
Users when required by such End Users. A one time fee shall be
charged for license of the source code equal to
XXXXXXXXXXXXXXXXXXXXXXXXX for such End User, which amount shall be
paid directly to Phoenix in its entirety.
13. Best Practices. Marketing Partner and its personnel shall adopt and
follow Phoenix Best Practices including its standards, processes and
procedures in all functional support areas, as such are provided to
Marketing Partner by Phoenix from time to time.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
Phoenix Marketing Partner
By: /s/ Xxxxxx Xxxxxxxxxx By: /s/ Khalid Alfarkh
------------------------------- --------------------------
Signature Signature
Xxxxxx Xxxxxxxxxx Khalid Alfarkh
---------------------------------- -----------------------------
Name (Print) Name (Print)
Chairman & CEO Sr. Marketing Manager
---------------------------------- -----------------------------
Title Title
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EXHIBIT A
SOFTWARE
Means the object code version of the software generally referred to as the
"Phoenix Banking System", and does not include the required database management
system nor any other third party applications or systems software.
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EXHIBIT B
TERRITORY
The Territory shall be as follows:
1) Bahrain
2) Egypt
3) Kuwait
4) Lebanon
5) Oman
6) Qatar
7) Saudi Arabia
8) UAE
The territory shall be exclusive as long as the Marketing Partner meets the
following sales minimums:
Year Sales Minimum
---- -------------
1 XXXXX
2 XXXXX
3 XXXXX
Sales Minimums shall be calculated as the total of XXXXXXXXXXXXXXX paid by each
customer within each year. If the Marketing Partner fails to meet the above
minimums in any 12 month period, Phoenix may terminate the exclusivity of this
Agreement by written notice to the Marketing Partner, and the Territory shall
then be non-exclusive.
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CONFIDENTIAL TREATMENT REQUESTED - XXXXX
EXHIBIT C
CONFIDENTIAL
NOT FOR DISTRIBUTION
MIDDLE EAST ANNUAL PRICE LIST (US DOLLARS)
PHOENIX RETAIL BANKING SYSTEM
1. LICENSE FEES:
A. Base License (one Server) $ XXXX
B. Remote Branch License
Branches
--------
XXXXX XXX
XXXXX $ XXX
XXXXX $ XXX
XXXXX $ XXX
XXXXX $ XXX
XXXXX $ XXX
C. Virtual Branch License (per 10,000 customer accounts) $ XXX
2. IMPLEMENTATION FEES (PLUS TRAVEL & LIVING EXPENSES)
A. Requirements Review/Analysis XXX
B. Conversion and Installation XXX
C. Training XXX
D. Enhancements and Modifications XXX
3. ANNUAL CUSTOMER AND SOFTWARE SUPPORT FEES: XXX
(PLUS TRAVEL & LIVING EXPENSES) per annum.
4. PROFESSIONAL SERVICES PER DAY RATES (PLUS RELATED EXPENSES)
Rates
-------------
Senior Manager $ XXX
Project Management/Trainer $ XXX
Implementation/ Development Professional $ XXX
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5. THE COMPONENTS OF THE SOFTWARE AND DOCUMENTATION
Customer & Product Controls
Administrative Controls
Customer Processing
Deposit Processing
Loan Processing
Teller Processing
Nightly Processing
General Ledger Administration & Maintenance
Executive Information System
Data Dictionary: Deposits
Data Dictionary: Loans
Data Dictionary: Customer Information
Report Dictionary
Budgeting
Multi-Currency Module
THE SOFTWARE SPECIFICATIONS ARE LOCATED IN THE LICENSED DOCUMENTATION.
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