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EXHIBIT 2.2
SOFTWARE AGREEMENT
This Software Agreement (the "Agreement") is made and entered into
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this 4th day of January, 2001 (the "Effective Date"), by and between SLMsoft.com
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Inc., a corporation formed under the laws of the Province of Ontario ("Owner")
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and The InterCept Group, Inc., a Georgia corporation ("Purchaser");
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WITNESSETH:
WHEREAS, Owner represents that Owner owns all right, title, and
interest, including copyright, in and to that certain computer program and
related documentation, and all past and current versions and releases thereof,
including those versions of 1998 and 2000, identified collectively as
SOLV/MICROSOLV, (the "Program"; for further reference, the functional
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specifications for the 1998 2000 versions of the Program are set forth in
Exhibit A attached hereto);
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WHEREAS, Owner represents that the Program contains no other software
components in which any third party may claim superior or joint ownership, nor
is the Program a derivative work of any other software programs not owned in
their entirety by Owner;
WHEREAS, Owner represents that Owner has granted rights in copies of
the Program to third parties solely through Purchaser's outsourced core banking
services and pursuant to the End-User License Agreements identified in Exhibit B
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attached hereto (the "End-User Agreements");
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WHEREAS, Owner has set forth in Exhibit C Owner's trademark in the
Program, U.S. Registration No. 2218271, and all patents, including utility
models, and patent applications anywhere in the world, and all copyright
registrations and applications anywhere in the world, that embody the Program in
whole or in part.
WHEREAS, Owner and Purchaser mutually desire to set forth in this
Agreement certain terms for their future marketing and joint ownership of the
Program;
NOW, THEREFORE, Purchaser and Owner, intending to be legally bound,
hereby agree as follows:
Definitions
"Additional Works" means all existing or later-arising enhancements,
regulatory updates, new releases, modifications, and similar derivative works of
the Program, or other developments or additions to the Program which are
incorporated in or closely integrated with the Program, prepared by, for or with
the parties (individually or jointly) or their respective agents or contractors.
"Customer-Specific Additional Work" means an Additional Work which is
subject to relicensing or disclosure restrictions imposed by a customer.
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"End-User" is a banking financial institution customer of Purchaser
and/or Owner that uses the Program for in-house or outsourced core banking data
processing services in the United States.
"Intellectual Property Rights" mean the intangible legal rights or
interests relating to the Program and evidenced by or embodied in (1) any idea,
design, concept, technique, invention, discovery, or improvement, regardless of
patentability, but including patents, patent applications, mask works, trade
secrets, and know-how; (2) any work of authorship, regardless of
copyrightability, but including copyrights and any moral rights recognized by
law; and (3) any other similar rights, in each case on a worldwide basis.
"Know How" is factual knowledge not capable of precise, separate
description but which, when used in an accumulated form, after being acquired as
the result of trial and error, gives to the one acquiring it an ability to
produce something which he or she otherwise would not have known how to produce
with the same accuracy or precision found necessary for commercial success.
References to the Program shall include all Additional Works unless
the context otherwise requires.
SECTION 1
CO-OWNERSHIP
1.1 Rights in Software. Effective beginning upon the Effective Date,
the Program (programming and documentation), including any Intellectual Property
Rights embodied by the Program or resulting from work and services performed
under this Agreement pertaining to the Program, will be jointly and undividedly
owned by Purchaser and Owner, and each party will have the independent right to
exploit such software subject to the terms and conditions of this Agreement.
Contemporaneously with the execution and delivery of this Agreement, the parties
shall execute and deliver an assignment of rights in the form attached hereto as
Exhibit D (the "Memorandum of Assignment") to effect the transfer of the joint
ownership interest to the Program contemplated by this Agreement. The rights of
each party to this Agreement with respect to the Program will not be subject to
any obligation, limitation or duty to the other party, including any duty to
share profit, provide accounting, refrain from waste, or adhere to obligations
otherwise arising from joint tenancy, unless expressly set forth herein. All
Additional Works will be considered part of the Program when and as arising and
will be jointly owned, used or otherwise exploited (individually or jointly as
further provided in this Agreement) by the parties pursuant to the terms of this
Agreement, and will be subject to the access and documentation requirements of
Section 2. Owner and Purchaser will execute any additional documents necessary
to further evidence transfer of legal title of the joint interest to the
Program. If either Owner or Purchaser acquires patent or licensing rights from a
third party with respect to the Program, the party acquiring such rights shall
extend the benefit thereof to the other party insofar as possible, and shall not
enforce such rights against the other party.
SECTION 2
DELIVERIES
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2.1 Access. It is the intent of the parties that, following the
Effective Date, each party will at all times be entitled to at least one full
set of all media and other tangible property representing or containing the
Program, including software in both object code and source code form and related
system-level documentation. Accordingly, on the Effective Date, Owner will
deliver to Purchaser, a master copy of the Program (in object code and/or source
code form, as requested) as then existing, or such portion thereof as may be
requested, and any existing system and user documentation pertaining to the
Program, including design and development specifications, if any. Such materials
will include, to the extent the same exist, the source code, system
documentation, statements of principles of operation, and schematics for the
Program, as well as any pertinent commentary or explanation, if existing, that
may be necessary to render such materials understandable and usable by a trained
computer programmer. Deliveries pursuant to this Agreement will be subject to
the confidentiality and security provisions of this Agreement. Furthermore, each
party will maintain its copies of the Program's source code within a secure
location at its place of business or within a safe deposit box maintained by a
regulated financial institution and will restrict access to the source code to
the following individuals or their successors: (i) CEO , COO, CFO, CTO or people
that they would reasonably designate, (ii) those programmers, including agents
and contractors of either party engaged for technical assistance with the
Program, requiring the source code for development of the Program, and (iii)
licensees, licensee contractors and escrow agents to whom the source code is
provided under confidentiality in instances where so required by licensing End
Users. Delivery of Additional Works will be made in similar form on a periodic
basis or when reasonably requested by either party.
2.2 Documentation Standards. Owner will establish and conform to
reasonable requirements for technical and functional documentation with respect
to the preparation and retention of Program-related software.
SECTION 3
THIRD PARTY RIGHTS AND OBLIGATIONS
3.1 Third Party Software Components. Owner represents and warrants
that except for software components that are licensed by Owner from third
parties, the Program contains no other software components in which any third
party may claim superior or joint ownership; and that the Program is not a
derivative work of any other software programs not owned in their entirety by
Owner.
3.2 End-User Agreements. Owner represents and warrants that Owner has
granted use rights in the Program in the United States to third parties solely
through Owner's outsourced core banking services and pursuant to the
nonexclusive in-house End-User Agreements. Owner represents and warrants that
except for a service bureau agreement with Advance Computer Enterprises, Inc.,
each End-User Agreement that is in effect grants the licensee thereunder solely
the nonexclusive right and license to use the Program, on a single central
processing unit; that each End-User Agreement provides only for rendering of
services (including warranty coverage, maintenance, and support) that, to the
extent required to have been performed as of the Effective Date, have been
performed in full.
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SECTION 4
MARKETING AND USE RIGHTS
4.1 Outside the United States. From the Effective Date, Owner has the
exclusive right to use, market, license, sell, distribute and otherwise exploit
the Program outside the United States, which as referenced herein includes its
Territories, including the right to create and exploit derivative works of the
Program outside the United States, directly or through its agents or affiliates.
4.2 Within the United States. From the Effective Date, except as
otherwise explicitly set forth herein, Purchaser has the exclusive right to use,
market, license, sell, distribute and otherwise exploit the Program in the
United States, including the right to create and exploit derivative works of the
Program in the United States, directly or through its agents and affiliates.
Explicit recitations of Purchaser's rights in the United States are set forth
for purposes of clarity in defining the relative scope of the party's rights and
do not limit by exclusion any other rights of Purchaser with respect to the
United States.
4.2.1 Banking Financial Institutions Greater than $1 Billion in
Assets. Owner and Purchaser will have the right to individually or jointly,
directly or through their respective agents or affiliates, market, license, sell
and distribute the Program, including the right to create and exploit derivative
works of the Program in the United States on an in-house basis to banking
financial institutions with aggregate assets of $US1 billion or more. For
purposes of this Agreement, a financial banking institution's aggregate assets
will be determined by the financial institution's balance sheet for the fiscal
year end immediately preceding the date of the agreement with such financial
institution, excluding its affiliates and controlled entities, and will not be
revised unless agreed to by the parties. Revenue from such banking financial
institutions will be divided as set forth herein in paragraph 5.4. Where Owner
initiates contact with, and is substantially responsible for the origination of
the license agreement with such banking financial institution, the license
agreement will be on a tri-party basis to include Owner, Purchaser and the
banking financial institution. Where Purchaser initiates contact with, or is
substantially responsible for the origination of the license agreement with such
banking financial institution, the license agreement will be between Purchaser
and the banking financial institution without inclusion of Owner as a party, at
Purchaser's discretion.
4.2.2 Banking Financial Institutions Less Than $1 Billion in
Assets. Purchaser will have the exclusive right to market, license, sell and
distribute the Program, including the right to create and exploit derivative
works of the Program in the United States on an in-house or out-source basis to
banking financial institutions with aggregate assets, determined as set forth in
subparagraph 4.2.1, of less than $US 1 billion.
4.2.3 Import Limitation. Owner does not have the right to
license third parties outside the United States to directly or indirectly use,
market, sell or distribute the Program in the United States or to directly or
indirectly import the Program into the United States and will explicitly exclude
such rights in licenses to such third parties.
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4.2.4. Export Limitation. Purchaser does not have the right to
license third parties in the United States to directly or indirectly use,
market, sell or distribute the Program outside the United States and will
explicitly exclude such rights in licenses to such third parties.
SECTION 5
OBLIGATIONS AND SHARING OF PROCEEDS
5.1 Maintenance and Support Requirements. Each party will be
responsible for providing to its users maintenance, bug-fixes, regulatory
updates, new releases, enhancements and any other Additional Works, provided
each party's obligation to its users may be limited to commitments actually made
in contract documentation between such party and the applicable user, and in no
event shall any user be entitled to claim either party has such an obligation or
enforce such obligation against a party unless so agreed by such party in such
documentation. With respect to any user that is a banking financial institution
in the United States having assets of $US1 Billion or more, if the non-licensing
party agrees to provide maintenance and support or other services to the
licensed customer, the non-licensing party shall be entitled to receive
compensation for those services from the licensing party or the licensed
customer, which, if not otherwise agreed, will be paid by the licensing party as
determined on a time and materials basis at the non-licensing party's then
standard hourly rates, plus any other reasonable charges.
5.2 General Software Development. Owner and Purchaser agree that each
party will, unless otherwise agreed by the parties, be solely responsible for
determining and producing Additional Works to the Program that it desires. Each
party will notify the other of any Additional Work it produces within 30 days of
completion of the same and will provide to the other party documentation
sufficient to detail the same in accordance with paragraph 2.1 hereof. The
parties will not be required to provide notice or documentation regarding
Customer-Specific Additional Work provided the restrictions are aimed to protect
the customer rather than impose limitations between the parties hereto.
5.3 Installation. Unless otherwise agreed by the parties, the party
who sells services to a banking financial institution in the United States
having assets of $US1 billion or more (as defined in subparagraph 4.2.1) will
install the Program for such financial institution, and provide related
services, including customizations related to such installation. If the other
party is requested to provide any such services, and agrees to do so, the other
party will be entitled to receive a percentage of such party's costs and
expenses arising from such installation, on a time and materials basis at such
party's then standard hourly rates, and any other reasonable charges.
5.4 Sharing of Proceeds. Software licensing fees, recurring
maintenance revenue and installation revenue received from banking financial
institutions in the United States having assets of $US1 billion or more (as
defined in subparagraph 4.2.1) will be shared 70% in favor of the party that
sells the bank and 30% in favor of the remaining party. In the event that Owner
assigns its entire assets or its entire interest in the Program to a third
party, then each of Owner's share and Purchaser's share of such licensing fees,
recurring maintenance and installation revenue under this paragraph 5.4 will be
50%. Purchaser will be entitled to all other proceeds derived from exploitation
of the Program in the United States as described in paragraph 4.2.
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Owner will be entitled to all proceeds derived from exploitation of the Program
outside the United States as described in paragraph 4.1.
5.4.1 Reporting. Each of Owner and Purchaser will report in
writing to the other as to the amount of license fees and revenue received by it
from any banking financial institution in the United States having assets of
$US1 billion or more that has licensed the Program or engaged the reporting
party to provide core banking services. Each party will report quarterly, within
30 days after the first days of each January, April, July and October, the
amount of such license fees and revenue received by it during the preceding
three (3) calendar months and will identify the banking financial institution
from which such license fees and maintenance revenue were received. Concurrently
with the report, the reporting party will pay the other party that percentage of
such license fees and maintenance revenue due the other party hereunder.
5.4.2 Auditing. Each party agrees to keep true and accurate
records, files and books of account containing data reasonably required for the
verification of reports of shared proceeds provided for by this paragraph, and
each party further agrees to permit its books and records to be examined from
time to time, but no more frequently than annually, to the extent necessary to
verify such reports, such examination to be made at the expense of the examining
party by any auditor appointed by the examining party who is acceptable to the
audited party, or by a certified public accountant appointed by the audited
party; provided that only those shared proceeds paid by the audited party to the
examining party within the two year period immediately preceding the start of
the audit, and the supporting records, files and books of account, will be
subject to audit.
SECTION 6
PROPRIETARY PROTECTION AND INDEMNIFICATION
6.1 Administrative Functions. It is recognized that, in the interest
of practicality, one party will ordinarily have the authority for protecting and
enforcing Intellectual Property Rights associated with the Program. As a result
of the division of rights within and outside the United States, the parties
agree that Owner will have the authority outside the United States to protect
and enforce Intellectual Property Rights that are effective outside the United
States and that Purchaser will have the authority within the United States to
protect and enforce Intellectual Property Rights that are effective within the
United States. Accordingly, the parties agree that Owner and Purchaser will and
may, each in its discretion and at its expense, take such action from time to
time as may be reasonable or appropriate, in its judgment, to protect and
preserve any applicable title and interest in and to the Program in its
territory, including associated Intellectual Property Rights. In that regard,
the party may, to the extent it deems reasonable or appropriate, in its
judgment, seek or invoke protection under applicable laws and regulations
respecting the registration of patents or copyrights. Any such patents or
copyrights will be obtained jointly in the name of Owner and Purchaser unless
otherwise agreed to in writing by the parties.
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6.1.1 Each party will provide assistance and information as
reasonably required by the other party to pursue protection, registration, etc.
in the United States for Intellectual Property Rights pertaining to the Program,
including Additional Works. Purchaser will provide information and assistance to
Owner as reasonably required by Owner to pursue protection, registration, etc.
outside the United States for Intellectual Property Rights pertaining to the
Program, including Additional Works.
6.2 Legal Proceedings. In furtherance of paragraph 6.1 hereof, each
of Owner and Purchaser may in its respective territory, to the extent it deems
reasonable or appropriate, in its judgment, seek to prosecute or enjoin any
infringement or interference by third parties with respect to the Program or any
associated Intellectual Property Rights in its territory. The enforcing party
will be solely entitled to determine and carry out, in its discretion, the
course of action, if any, that may be appropriate for responding to such
instances of infringement or interference, and in that regard, the enforcing
party will have no obligation to the other party regarding its decision whether
to take action or regarding any course of action the other party may recommend.
If the enforcing party declines to take such action with respect to instances of
infringement or interference in its territory, then the other party will have
the right to prosecute or enjoin such infringement or interference, except that
Owner's ability to pursue an action as the other party under this paragraph 6.2
will not survive assignment of Owner's entire assets or its entire interest in
the Program to a third party. In the event of any action by either party
pursuant to this paragraph, the party bringing the action is responsible for all
expenses related thereto and is entitled to all damages collected therefrom.
6.3 Confidentiality. Each party acknowledges that it may have access
to certain confidential information of the other party ("Confidential
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Information") concerning the other party's business, plans, technology and
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products, and other information held in confidence by the other party, including
without limitation, customer lists. Confidential Information includes, but is
not limited to, all information in tangible or intangible form that is
designated as confidential or that, under the circumstances of its disclosure,
should be considered confidential. Each party agrees that it will not use in any
way, for its own account or the account of any third party, except as expressly
permitted by, or required to achieve the purposes of, this Agreement, nor
disclose to any third party (except as required by law), any of the other
party's Confidential Information and will take at least as much care as it takes
to protect its own Confidential Information, but in no event less than
reasonable care.
6.3.1 Information will not be deemed Confidential Information
herein if such information: (1) can be demonstrated to have been known to the
receiving party prior to receipt from the disclosing party; (2) becomes known
(independently of disclosure by the disclosing party) to the receiving party,
directly or indirectly, from a source other than one having an obligation of
confidentiality with respect to the Confidential Information; (3) becomes
publicly known or otherwise ceases to be secret or confidential, except through
a breach of this Agreement by the receiving party; or (4) can be demonstrated to
have been independently developed by the receiving party. The receiving party
may disclose Confidential Information pursuant to the requirements of a
governmental agency or by operation of law, provided that it
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gives the disclosing party reasonable prior written notice sufficient to permit
the disclosing party to contest such disclosure to the agency or a court of
competent jurisdiction.
6.4 Indemnification and Contribution.
6.4.1. Purchaser will defend, indemnify, and hold harmless Owner,
its officers, agents, employees, and authorized contractors from and against any
claim, loss, damage, or expense (including court costs and attorney's fees)
arising out of, or relating to, infringement of intellectual property rights
based on the actions taken by Purchaser or employees, agents, or subcontractors
engaged by Purchaser with respect to the design and development of the Program,
including any programming, execution, revision, enhancement, modification,
translation, abridgement, condensation, expansion, or combination with any other
works. Owner agrees to notify Purchaser at such time as it is apprised of any
third-party claim and agrees to cooperate in a reasonable manner with Purchaser
with respect to the defense and disposition of such claim.
6.4.2. Owner will defend, indemnify, and hold harmless Purchaser,
its officers, agents, employees, and authorized contractors from and against any
claim, loss, damage, or expense (including court costs and attorney's fees)
arising out of, or relating to, infringement of intellectual property rights
based on the actions taken by Owner or employees, agents, or subcontractors
engaged by Owner with respect to the design and development of the Program,
including any programming, execution, revision, enhancement, modification,
translation, abridgement, condensation, expansion, or combination with any other
works. Purchaser agrees to notify Owner at such time as it is apprised of any
third-party claim and agrees to cooperate in a reasonable manner with Owner with
respect to the defense and disposition of such claim.
6.4.3. Owner will have the full right and responsibility to
defend any claims, actions, obligations, demands, assessments, penalties,
liabilities, costs, or damages against Purchaser or against Owner arising from
the malfunctioning or failure and/or lack of functionality of the Program if
originally licensed and delivered to an End-User by Owner, and Owner will be
responsible for any final, non-appealable judgment arising from any such claims,
actions, obligations, demands, assessments, penalties, liabilities, costs, or
damages levied against Purchaser or Owner, providing such claim is not asserted
by the complaining party to arise through the negligence, misrepresentation or
omission of Purchaser.
6.4.4. Purchaser will have the full right and responsibility to
defend any claims, actions, obligations, demands, assessments, penalties,
liabilities, costs, or damages against Purchaser or against Owner arising from
the malfunctioning or failure and/or lack of functionality of the Program if
originally licensed and delivered to an End-User by Purchaser, and Purchaser
will be responsible for any final, non-appealable judgment arising from any such
claims, actions, obligations, demands, assessments, penalties, liabilities,
costs, or damages levied against Purchaser or Owner, providing such claim is not
asserted by the complaining party to arise through the negligence,
misrepresentation or omission of Owner.
6.4.5. If Purchaser and Owner are or may be obligated each to the
other as a result of different actions taken by each party, or actions taken
jointly by both parties, with respect to third party claims relating to
malfunctioning or failure and/or lack of functionality of
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the Program, Owner will have the right and obligation to defend such third party
claims. Purchaser will have the right, at its sole discretion, to join such
defense. Purchaser and Owner each agree to contribute to the amount of expenses,
judgments, fines, and settlements paid or payable as a result of such third
party claims in such proportion as is appropriate to reflect (i) the relative
benefits received by Purchaser on the one hand and Owner on the other hand from
the transaction from which such third party action arose; (ii) the relative
fault of Purchaser on the one hand and of Owner on the other in connection with
the events that resulted in such expenses, judgments, fines, or settlement
amounts; and (iii) any other relevant equitable considerations. The relative
fault of each party will be determined by reference to, among other things, each
party's relative intent, knowledge, access to information, and opportunity to
correct or prevent the circumstances resulting in such expenses, judgments,
fines, or settlement amounts. Each party agrees that it would not be just and
equitable if contribution pursuant to this section were determined by pro rata
allocation or any other method of allocation that does not take account of the
foregoing equitable considerations.
6.4.6. Owner will have the full right and responsibility to
defend any claims, actions, obligations, demands, assessments, penalties,
liabilities, costs, or damages against Purchaser or against Owner arising from
Owner's exploitation of the Program outside the United States, and Owner will be
responsible for any final, non-appealable judgment arising from any such claims,
actions, obligations, demands, assessments, penalties, liabilities, costs, or
damages levied against Purchaser or Owner.
6.4.7. Other than as expressly provided in this Agreement,
neither party will in any circumstances be liable to the other party for any
loss of business or profits, or any other indirect, consequential, incidental,
punitive or similar damages whether based on breach of contract, tort (including
negligence) or otherwise, even if it has been advised of the possibility of such
damages.
SECTION 7
TERM
7.1 Period. This Agreement will remain in effect for a period ending
upon the last to expire patent or copyright embodying the Program.
7.2 Survival. In the event this Agreement is terminated for any
reason other than that set forth in paragraph 7.1, such termination will have no
effect on the joint ownership provisions of paragraphs 1.1, 5.5, 6.1, or Section
4, or the security provisions of paragraph 2.1, or the rights and obligations
set forth in Section 6, unless explicitly set forth therein.
SECTION 8
WARRANTIES AND DISCLAIMERS
8.1 No Consent and Warranty of Right to Assign Joint Ownership
Interest. Owner represents and warrants that it has legal power to extend the
rights granted by Owner to
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Purchaser in this Agreement and that it has not made and will not make any
commitments to others inconsistent with or in derogation of such rights. Owner
furthermore represents and warrants no consent, approval or withholding of
objection is required from any third party or governmental authority with
respect to the entering into or performance of this Agreement.
8.2 Ownership. Owner represents and warrants that all personnel,
including employees, agents, consultants and contractors, who have contributed
to or participated in the conception and development of the Program either (1)
have been party to a for-hire relationship with Owner that has accorded Owner
full, effective and exclusive original ownership of all tangible and intangible
property thereby arising with respect to the Program or (2) have executed
appropriate instruments of assignment in favor of Owner as assignee that have
conveyed to Owner full, effective, and exclusive ownership of all tangible and
intangible property thereby arising with respect to the Program. Each party
will, throughout the term of this Agreement and as far as is practical for it to
do so, cause its employees who are employed to do research, development, or
other inventive work to disclose to it inventions within the scope of this
Agreement and to assign to it rights in such inventions such that the other
party will receive, by virtue of this Agreement, the rights agreed to be granted
to it.
8.2.1. Ownership Representations. For the purpose of licensing,
selling, and distributing the Program in accordance with this Agreement, each of
Owner and Purchaser shall have the right to represent to banking financial
institutions that it owns the Software/Program either "jointly" or
"individually" as the case may warrant.
8.3 Infringement. Owner represents and warrants that there are no
actions, suits or proceedings, pending or threatened, which will have a material
adverse effect on Owner's ability to fulfil its obligations under this
Agreement. Owner represents and warrants that Purchaser's distribution and use
of the Program in accordance with the Agreement will not infringe any patent,
trademark, copyright or other proprietary right of any third party.
8.4 End-User Agreements. All user agreements granted by Purchaser or
Owner directed to the Program will provide that any claims, actions,
obligations, demands, assessments, penalties, liabilities, costs, or damages
brought by a user of the Program against Purchaser and/or Owner, as the case may
be, arising from or relating to the terms and conditions of the user agreement
will be limited to the actual license fee paid within the twelve month period
prior to the claim by the user to Purchaser and/or Owner. Furthermore, all user
agreements will state that Purchaser and/or Owner, as the case may be, makes no
warranties or representations, express or implied, by operation of law or
otherwise with respect to the Program or services supplied under the user
agreement and will disclaim any warranty of merchantability or fitness for a
particular purpose.
8.5 Trademarks. The parties' respective rights pertaining to
trademarks and similar matters are addressed in separate agreements. Whenever
possible, such separate agreements shall be construed to give full effect to the
rights of the parties to exploit the Program as delineated in this Agreement.
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8.6 The Program. Owner represents and warrants that the Program
conforms in all material respects to the function specifications set forth in
Exhibit A.
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SECTION 9
MISCELLANEOUS
9.1 Compliance With Laws. Each party agrees that it will comply with
all applicable laws and regulations of governmental bodies or agencies in its
performance under this Agreement. Without limiting the generality of the
foregoing, neither party will knowingly export or re-export, directly or
indirectly, any technical data (as defined by the U.S. Export Administration
Regulations) produced or provided under this Agreement, or export or re-export,
directly or indirectly, any direct product of such technical data, including
software, to a destination to which such export or re-export is restricted or
prohibited by U.S. or non-U.S. law, without obtaining prior authorization from
U.S. Department of Commerce and other competent government authorities to the
extent such laws apply.
9.2 No Agency. Nothing herein will be construed to create a
partnership, joint venture, or agency relationship between the parties hereto.
9.3 Counterparts. This Agreement may be executed in one or more
counterparts, all of which together will constitute a single Agreement.
9.4 Governing Law. The validity, construction, and performance of
this Agreement will be governed by the laws of the State of Georgia, USA.
9.5 Arbitration. In the event of any dispute, controversy, or claim
arising out of, relating to, or in connection with the subject of this
Agreement, including the breach, termination, or validity thereof, either party
may demand that such matter be submitted to final and binding arbitration to be
conducted in accordance with the Rules of Conciliation and Arbitration of the
International Chamber of Commerce, as then in effect, as modified herein or by
mutual agreement of the parties (the "Rules"). At such time as arbitration is
demanded, the parties will endeavor to select a single arbitrator to conduct the
arbitration, but if the parties cannot agree on the identity of a single
arbitrator within five days of receipt of the arbitration demand, each of them
will appoint one arbitrator, and the party-appointed arbitrators will appoint
within five days of their appointment a third arbitrator.
The arbitrator or arbitrators will forthwith determine the merits of
the claim, controversy, or dispute, and will deliver its or their decision
within 90 days of the date of receipt of the arbitration demand specifying such
remedy (including money damages) as will fully implement the intent and purposes
of this Agreement. In addition to the authority conferred on the arbitrator or
arbitrators by the Rules, the arbitrator or arbitrators will have the authority
to order such discovery and production of documents, including the deposition of
party witnesses, as it or they may deem just and equitable.
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The seat of the arbitration will be Atlanta, Georgia, and it will be
conducted in the English language, provided that either party may submit
testimony or documentary evidence in its native language and will, upon the
request of the other party, furnish a translation or interpretation in English
of any such testimony or documentary evidence. The arbitral award will be in
writing and will be final and binding on the parties. The award may include an
award of costs, including reasonably attorney's fees and disbursements. Judgment
upon the award may be entered by any court having jurisdiction thereof or having
jurisdiction over the parties or their assets.
9.6 Amendments; Waiver. This Agreement may be amended only by an
instrument in writing executed by the party against whom enforcement of the
amendment is sought. Waiver of any provision of this Agreement will not be
deemed a waiver of any other provision, and any failure to act in response to a
breach or insist on strict performance of any provision of this Agreement will
not be deemed a waiver of any such breach or of any later breach or failure to
perform any provision of this Agreement.
9.7 Notices. All notices, requests, demands, and other communications
required or permitted by this Agreement will be in writing and will be deemed to
have been duly given if sent by personal delivery, by telecopy, by express
courier service, or, if mailed, postage prepaid, first-class, certified mail,
return receipt requested, on the third day after mailing, to the following
addresses or to such other address as a party may specify to the other in
writing:
To Owner: SLMsoft.com Inc.
1 Yorkdale Road, Suite 600
Toronto, Ontario M6A 3A1
Attention: Dev Misir and Dwayne Mathers
Fax No. (416) 789-9078
With a copy to:
Gowling, Lafleur & Henderson LLP
Suite 4900
Commerce Court West
Toronto, Ontario M5L 1J3
Attention: Howie C. Wong
Fax No. (416) 862-7661
To Purchaser: The InterCept Group, Inc.
3150 Holcomb Bridge Road, Suite 200
Norcross, Georgia 30071
Attention: John Collins and Scott R.
Meyerhoff
Fax: (770) 840-2521
with a copy to:
Nelson Mullins Riley & Scarborough, L.L.P.
12
<PAGE>
First Union Building, Suite 1400
999 Peachtree Street
Atlanta, Georgia 30309
Attention: Charles D. Vaughn, Esq.
Fax: (404) 817-6224
9.8 Severability. A decision by any arbitrator or court of
competent jurisdiction invalidating or holding unenforceable any part of this
Agreement will not affect the validity and enforceability of any other part of
this Agreement.
9.9 Entire Agreement. This Agreement and the Memorandum of
Assignment are the entire agreement between the parties and supersedes all prior
discussions and agreements between the parties with respect to the matters it
addresses.
9.10 Assignment. Without the prior written consent of the other
party (which consent may be withheld with or without reason in the absolute
discretion of such other party), neither party may sell, assign, or divide its
rights under this Agreement or in the Program (including an associated
Intellectual Property Rights), except that either party will be entitled to
assign its rights hereunder as part of the sale of the entire assets of the
party or of its entire interest in the Program, subject to the terms and
conditions of this Agreement regarding such sale. In the event of such sale, the
parties expressly recognize that the rights and obligations set forth in section
4 and paragraph 5.5 of this Agreement transfer to the third party buyer.
9.11 Further Assurances. Purchaser and Owner each agrees to execute
and deliver such further instruments, and take such further actions, as may be
reasonably requested by the other party in order to evidence more fully the
rights confirmed or granted pursuant to this Agreement, provided that such
further instruments and actions will not, unless otherwise agreed, require
either party to incur any obligation in addition to the obligations undertaken
or assumed elsewhere in this Agreement.
IN WITNESS WHEREOF, Purchaser and Owner have caused this Agreement to
be signed and delivered by their duly authorized officers, all as of the date
first herein above-written.
SLMsoft.com Inc.: The InterCept Group, Inc.:
By: /s/ Dev. Misir By: /s/ Scott R. Meyerhoff
----------------- ------------------------
Name: Dev. Misir Name: Scott R. Meyerhoff
Title: EVP Title: CFO
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