Consulting Agreement - Visa USA Inc. and Catuity Inc.
CONSULTING AGREEMENT
TERM OF AGREEMENT: OCTOBER 1, 2000 THROUGH DECEMBER 31, 2001 (THE "TERM")
VISA CONTACT: LIANE REDFORD
SELLER CONTACT: JONATHAN ADAMS
SELLER TAX I.D. #: 38-3518829
This Agreement (the "Agreement") is between VISA U.S.A. INC. ("Visa"), with its
principal place of business at 900 Metro Center Boulevard, Foster City,
California 94404 (mailing address P.O. Box 8999, San Francisco, CA 94128-8999)
on the one hand and CATUITY, INC. (hereinafter "Seller"), with its principal
place of business at 2711 East Jefferson Avenue, Detroit, Michigan, 48207, on
the other.
In consideration of the mutual covenants and conditions set forth herein and in
Exhibits A, B, and C hereto, all of which are incorporated herein by reference,
Visa and Seller agree as follows:
1. Subject to the terms and conditions specified in Exhibit A hereto, Seller
shall provide Services and Visa shall pay Fees under the terms specified in
Exhibit B hereto, all as may be amended by Exhibit C hereto. From time to time,
the parties may agree on further and particular Seller Services and Visa Fees,
which Services and Fees shall be set out in Seller project description documents
("Confirmations") in the form attached hereto as Attachment 1. No Confirmation
shall be binding on the parties unless it is signed by both parties and a staff
member of Visa Business Affairs, and explicitly references this Agreement. All
Confirmations shall be governed only by the terms and conditions of this
Agreement notwithstanding any apparent terms and conditions on such
Confirmations.
2. Seller agrees to provide consulting services for Visa on the terms and
conditions set forth in this Agreement and agrees that Seller personnel are not
authorized to begin performing subsequent services for Visa until Seller has
received a Confirmation for those services, executed by Visa. This Agreement and
its Exhibits shall not be construed as making an employment offer to any
employee or contractor of Seller. No employee or agent of either party, except
for Visa Human Resources Department management and recruiters who are employees
of Visa, shall have the authority to make any agreement or representation, oral
or written, relating to employment with Visa. In addition, no representation as
to an individual's current or future assignment as a contractor to Visa shall be
effective until an Confirmation covering such assignment has been signed by
authorized representatives of both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year above.
CATUITY, INC. VISA U.S.A. INC.
("Seller") ("VISA")
By /s/ Jonathan R.E. Adams By /s/ Patrick Gauthier
--------------------------------- --------------------------------
Name Jonathan R.E. Adams Name Patrick Gauthier
------------------------------- -------------------------------
Title SVP Operations Title SVP
------------------------------ ------------------------------
Date 11/8/00 Date 11/17/00
-------------------------------- -------------------------------
<PAGE>
EXHIBIT A
TERMS AND CONDITIONS
1. DEFINITIONS
a. Confidential Information means any proprietary information,
cardholder information, merchant information, technical data, trade secrets or
know-how, research, experiments, inventions, processes, formulas, designs,
drawings, products, services, plans, customers, markets, finances, equipment,
card plastics or plates, software, source code, hardware configuration, or other
information disclosed by Visa, its Member financial institutions or other
service providers, in writing, orally, on tape or disk, or by drawings or
inspection of parts or equipment, and includes the results of services under
this Agreement, the Deliverables and any other information that reasonably
should be understood to be confidential. It includes Work Product and
Deliverables, which are hereby deemed to be the confidential information of
Visa. It does not mean information (a) already known by Seller at the time it is
disclosed as shown by written records; (b) publicly known without breach of this
Agreement; (c) received from a third party authorized to disclose it without
restriction; (d) independently developed by Seller without use of the
Confidential Information; or (e) required by law, regulation or valid court or
government order to be disclosed, if Seller first notifies Visa, so Visa may
seek a protective order.
b. Deliverables mean items Seller personnel develop or provide to Visa
under any Exhibit to this Agreement, including all Work Product.
[unused definition deleted]
c. Work Product means improvements, inventions, developments,
discoveries, mask works, ideas, processes, techniques, products, know-how and
data, whether or not subject to patent; creative works, preliminary concepts,
concept executions, and all other copyrightable material; reports, notes,
records and other documentation; preliminary and final drawings, designs,
exposed and processed film, disks of final copy, art, digital art, and/or
mechanicals; source code and other documentation that would assist in modifying,
enhancing or maintaining delivered software; and trade secrets; as well as all
their derivatives and modifications that Seller personnel make, conceive or
reduce to practice, solely or with others, while performing services in
connection with the Deliverables.
2. PERFORMANCE & COMPENSATION. Unless Visa agrees that a contractor of Seller
meets independent contractor requirements, Seller shall not provide any such
worker to perform services for Visa. This Agreement is for the personal services
of Seller and its personnel. Substitute performance for those personnel is not
acceptable without prior written consent by Visa. Visa agrees to pay Seller the
compensation set forth in a Project Description Exhibit, including pre-approved
expenses, unless the parties have agreed that Seller will include such expenses
in its fee. Seller will provide specified reports upon Visa's request. Visa
shall not be responsible for fees or expenses beyond those quoted on the Project
Description Exhibit.
3. TERMINATION. Either party may terminate this Agreement upon thirty (30) days'
prior written notice. If termination is for breach, the breaching party shall
have thirty (30) days to cure such breach. Termination shall be effective
without further notice at the end of such period if the breach has not been
cured. Visa may order Seller to immediately cease performance to prevent loss
from failure of its
<PAGE>
personnel to keep Confidential Information secure, their gross misconduct, or
Seller's insolvency .Visa may request Seller to immediately remove specific
Seller personnel from an assignment. Seller shall have ten (10) business days to
find substitute personnel acceptable to Visa. If Seller cannot provide a
suitable replacement within ten (10) business days, Visa may terminate the
relevant Exhibit or this Agreement without further obligation to Seller. Upon
termination, Visa shall pay Seller prorated fees and expenses for work
completed. Each party's duties on ownership of Work Product, confidentiality,
indemnification and warranties shall survive termination of this Agreement or
any Exhibit.
4. CONFIDENTIALITY. Seller shall use Visa's confidential information only for
the purposes of this Agreement, and shall take all reasonable precautions to
prevent unauthorized disclosure or use of it. Seller shall not make any press
release or other public disclosure of confidential information or performance of
services for Visa without prior written consent of Visa. Seller will hold all
confidential or proprietary information from third parties in the strictest
confidence, and shall use or disclose it only for performance of services
hereunder if consistent with the third party's agreement for its use. Upon
termination of this Agreement or upon demand, Seller promptly shall return to
Visa all property and confidential and proprietary information of Visa and of
third parties provided by Visa. If agreed, a Certification of Destruction may be
provided instead, with sufficient detail on items destroyed, destruction date,
and assurance that all copies also were destroyed.
5. SECURITY. Visa reserves the right to deny access to its premises, information
and systems to Seller or its personnel at any time for reasonable cause. For
access to sensitive data or systems or a Visa security badge, Seller personnel
will be subject to a background investigation, including criminal history and
consumer credit reports. Seller shall obtain its personnel's consent to such
security checks. Seller personnel shall comport themselves at all times
according to generally accepted standards of professional conduct, and according
to the Vendor Guidelines attached as Attachment 2 to the Agreement and are
incorporated herein by reference.
6. PROPRIETARY RIGHTS IN WORK PRODUCT, DELIVERABLES AND DATA
a. Nothing contained herein shall give Visa any ownership rights in any
materials or information contained in the Deliverables that was developed or
acquired by Seller prior to the performance of the services under the Exhibit
governing the Deliverables, or that is licensed by Seller from any third party,
provided that Seller lists such retained materials and information under the
Ownership Rights section of the Project Description and grants Visa a license to
such retained materials and information adequate to permit the exercise of the
rights described in subsection (c) below.
b. Excluding such retained materials and information, Seller grants to
Visa all rights to the Work Product and Deliverables, including complete,
unconditional and world- wide ownership of all intellectual property rights in
any draft or final version of material. Seller agrees to assist Visa, at Visa's
expense, in securing such worldwide rights and any intellectual property rights
relating thereto, including disclosure of all pertinent information and data and
execution of all documents needed. For copyrightable works not deemed to be
Work-Made-For-Hire, Seller shall assign such copyright to Visa and shall execute
all documents needed to evidence such assignment.
c. Notwithstanding anything to the contrary in this Agreement, Visa
shall have the right to use and disclose all Deliverables from Seller in the
normal course of business, including use for evaluation, development and
marketing of products and services by Visa. In addition, upon transfer of the
Deliverables, Seller hereby waives all right to attribution or limitation on
subsequent use or modification.
7. CONFLICTING OBLIGATIONS. No search, conversion, or placement fees shall be
payable to Seller managers, officers or
<PAGE>
personnel (including employees and contractors) for placement of any individual
as a Visa employee, contractor or consultant, if such placement resulted from
information obtained by Seller's managers, officers or personnel performing
services on Visa's premises.
8. HIRING OF THE OTHER PARTY'S PERSONNEL. Unless the parties otherwise agree in
writing, neither a party nor its personnel shall solicit for employment, hire or
engage in any capacity any employee of the other party. Visa shall have no
obligation for placement fees to any corporation of a contractor performing
services for Visa through Seller, or liability for any breach of any employment
or other agreement by such contractor, should such contractor accept employment
or contract work with Visa.
9. WARRANTIES.
a. Intellectual Property. Seller warrants that its personnel will not
knowingly use or infringe any intellectual property or other proprietary right
of a third party and that the Deliverables will be original works of its
personnel or provided under valid license from third parties. Seller further
warrants that it has not granted and will not grant any right in the
Deliverables or Work Product to a third party that would be inconsistent with
the rights granted to Visa under this Agreement.
b. Other Contracts. Seller represents and warrants that entering into
this Agreement and performance of services hereunder does not contravene the
terms of any agreement with a third party.
c. Inducements. Seller warrants that its personnel have not provided
and shall not provide any gift, gratuity, service, or other inducement to any
Visa employee or agency involved in retaining Seller's services for this
Agreement.
d. Compliance with Law and Visa Vendor Guidelines. Seller warrants that
it shall comply with all applicable laws and regulations, including, without
limitation, employment, immigration, and tax laws and regulations. Seller
warrants that all personnel performing services on Visa premises have the legal
right to work in the United States. Seller warrants that it has not
discriminated against any employee, applicant or contractor on any basis
forbidden by law. Seller warrants that it qualifies under applicable tax laws
and regulations as an independent contractor.
e. Seller Personnel Compliance. Seller warrants that all Seller
personnel who are involved in the provision of Services hereunder shall have,
prior to beginning such involvement, (i) been made aware of the terms and
conditions set out in Sections 4 through 9 of this Exhibit A, (ii) been made
aware of the Visa Vendor Guidelines; and (iii) agreed to comply with those terms
and conditions and Vendor Guidelines.
f. Performance. Seller warrants its personnel shall use reasonable care
and judgment in performing the services hereunder.
10. FINANCIAL STATEMENTS. Upon request, Seller shall provide Visa with a copy of
its most recent audited financial statements, a letter from Seller's certified
public accountant or other documentation acceptable to Visa setting out Seller's
current financial status, such documentation to be warranted by Seller to be
complete and accurate. Visa acknowledges the confidentiality of such statements,
and shall restrict access to them solely to those Visa employees with a need to
know.
11. INSURANCE. Seller shall maintain at its expense during the term of this
Agreement the following minimum insurance coverage with insurers having a BEST
rating acceptable to Visa (a) Comprehensive General Liability coverage at $1
million per occurrence and $2 million general aggregate, including coverage for
Seller's contractual liability under the Indemnification section hereunder; (b)
Workers' Compensation coverage at statutory minimums (if required by law); and
(c) Employer's Liability coverage at $1 million per occurrence (if applicable).
Upon request by Visa, Seller also shall maintain at its expense during the term
of this Agreement (d) Comprehensive Auto Liability coverage at $1 million
combined single limit; (e) Errors & Omissions coverage at $1 million per
occurrence and in the
<PAGE>
aggregate; and (f) Fidelity coverage at $1 million per occurrence and in the
aggregate. Seller shall add Visa as an additional insured to the Comprehensive
General Liability policy. Seller's insurance shall be primary, and any insurance
maintained by Visa shall be excess to and not contribute to Seller's insurance.
Every policy required under this Section shall contain the following clause: "No
reduction, cancellation or expiration of this policy shall become effective
until thirty (30) days from the date written notice is actually received by
Visa." Seller and its personnel shall not undertake any services until all
required insurance has been obtained. Seller immediately shall obtain
replacement insurance complying with these requirements upon any cancellation or
material revision of its coverage. Within thirty (30) days of execution of this
Agreement and annually thereafter, Seller shall send Certificate(s) of Insurance
confirming such coverage to Visa, Attn: Business Affairs, P.O. Box 8999, M/S:
Ml-10B, San Francisco, CA 94128-8999. Fulfillment of obligations to procure
insurance shall not otherwise relieve Seller of any liability hereunder or
modify Seller's obligations to indemnify Visa.
12. AUDIT. Seller shall allow Visa or its designated agent access during normal
business hours throughout the term of this Agreement and for six (6) months
thereafter to perform audits of Seller's facilities, operations and records on
services to Visa to determine whether Seller has complied with this Agreement.
Seller also shall provide Visa or its designated agent during normal business
hours with books, records and supporting documentation adequate to evaluate
Seller's performance.
13. INDEPENDENT CONTRACTOR. Seller is an independent contractor, and this
Agreement and its Exhibits shall not be interpreted as appointing Seller or its
personnel as agents, employees, lessees, partners, or joint venturers of Visa.
Seller and its personnel may not bind or obligate Visa without its prior written
consent. Visa shall not be liable for Seller's debts, obligations or
liabilities, including without limitation Seller's obligation to withhold social
security and income taxes for its personnel. Seller's personnel are not entitled
to any benefits generally available to Visa employees, including, without
limitation, the Visa Thrift and Retirement Plans.
14. INDEMNIFICATION
a. Seller shall indemnify and hold harmless Visa and its subsidiaries,
Member financial institutions, including Group Members, and service providers,
and their respective directors, officers, employees, agents, attorneys,
affiliates, successors, and assigns ("Indemnified Parties") from all claims,
losses, liabilities, damages, suits, actions, government procedures, taxes,
penalties or interest, associated auditing and legal expenses and other costs
incurred by Indemnified Parties, arising from Seller's or its personnel's (a)
unauthorized use of Visa or a third party's trademarks or other violation of
intellectual property rights by use of the Deliverables or Work Product; (b)
failure to comply with applicable laws or regulations; (c) failure to report all
compensation under this Agreement as income, including, without limitation,
failure to pay withholding or other taxes, resulting in determination by a
government agency that Seller is not an independent contractor; (d) failure to
pay any other debt, obligation or liability of Seller; (e) workers' compensation
claims; (f) unauthorized acts or omissions; or (g) negligent or willful causing
of bodily injury or property damage, except to the extent Visa personnel caused
such injury or damage by their negligence or misconduct.
b. Seller agrees, at its own expense, to defend or settle any claim
brought against Visa for patent, copyright, trade secret or trademark
infringement in connection with a Deliverable. Visa shall provide Seller with
prompt written notice of the claim, authority to proceed and full information
and assistance to defend or settle the claim. At its sole option and expense,
Seller may procure for Visa the right to use the Deliverable, replace the
Deliverable with a non-infringing substitute or suitably modify the Deliverable
so that it is non-infringing. Notwithstanding the foregoing, Seller assumes no
liability for infringement claims arising from (i) combination of Seller's work
with products not provided by Seller personnel, if such claim would not exist in
the absence of such combination; or (ii) modification of the Deliverable, unless
Seller's personnel made such modification.
<PAGE>
c. EXCEPT FOR DAMAGES CAUSED BY WILLFUL MISCONDUCT OF A PARTY , IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, HOWEVER CAUSED, WHETHER UNDER THEORY OF
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER- WISE, EVEN IF THE OTHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF
LIABILITY DOES NOT APPLY TO INDEMNIFICATION OWED TO THE OTHER PARTY FOR THIRD
PARTY CLAIMS.
15. GENERAL
a. Excusable Delays. Neither party shall be held responsible for delays
caused by acts beyond its control, such as acts of God or public enemies,
government acts, utility or communications delays or failures, accidents not
caused by its own negligence or fault, labor disputes, war, or failure of the
other party to provide required data. Seller shall be responsible for delays and
restrictions caused by its personnel's failure to comply with the terms of this
Agreement, resulting in exclusion from facilities or access to Confidential
Information or systems.
b. Assignment. Seller may not assign the services, or assign or
delegate its rights and obligations under this Agreement, without the prior
written consent of Visa.
c. Notice. All notices required under this Agreement shall be in
writing and shall be deemed given when delivered personally, by overnight
delivery upon written verification of receipt, by facsimile transmission upon
electronic acknowledgment of receipt, or by certified or registered mail, return
receipt requested, upon verification of receipt. Notice shall be sent to the
addresses set forth on the signature page or such other address or facsimile
number as either party may specify in writing.
d. Governing Law: Severabilitv. This Agreement shall be construed and
interpreted under the internal laws of the State of California, without giving
effect to its principles of conflict of law. If a court of competent
jurisdiction finds any provision of this Agreement invalid, illegal or
unenforceable, the remainder of the Agreement shall remain in full force and
effect.
e. Trademarks. Neither party shall place the trademarks, service marks
or trade name of the other party on materials developed under this Agreement,
without the trademark owner's prior written consent.
f. Taxes. Seller shall be responsible for and pay all taxes, however
designated, including taxes on its income, that are levied or based on this
Agreement. Visa shall have the right to require Seller to contest with the
imposing jurisdiction, at Visa's expense, any taxes or assessments that Visa
deems to have been improperly imposed on Visa.
g. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
h. Entire Agreement; Modification; Waivers. This Agreement and its
incorporated attachments constitute the entire agreement and understanding
between Visa and Seller on the subject matter. The Agreement incorporates any
additional terms and conditions contained in Project Description Exhibits,
invoices or purchase orders, provided such terms are not inconsistent with the
terms of this Agreement. No modification or waiver of this Agreement shall be
binding unless it is in writing and signed by both parties.
<PAGE>
EXHIBIT B--
ATTACHMENT 1
SELLER PROJECT DESCRIPTION ("CONFIRMATION")
This Project Description shall be attached to the Consulting Agreement dated
October 1, 2000 between VISA U.S.A. INC. ("Visa") and CATUITY, INC. ("Seller"),
Tax ID No.38-3518829 and is subject in all respects to the terms and conditions
of that agreement.
1. Seller shall provide the following Services:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
- The Services are more fully defined in Seller's proposal dated _______,
which is attached hereto and made a part hereof by reference.
2. Provision of these Services will commence on _______________________ and the
Deliverables and Work Product shall be presented to Visa no later
than ________________ .
3. Compensation:
- U.S. $ ________+- 10% in total, inclusive of fees, outside costs,
and out of pocket expenses. Any additional costs or fees will not be
reimbursed to Seller without prior written approval from Visa.
- Seller will be paid on a time and materials basis, based on fees and
costs set out in the attached rate schedule. In no event will Visa be
obligated to pay more than U.S. $______in total, inclusive of $_______
in fees, $____________ in outside costs, and $________ in out of pocket
expenses, without Visa's prior written approval of fees and costs for
such additional amounts.
4. Seller shall invoice Visa based on the following schedule: _________________
___________ Seller shall upon Visa's request, provide any reasonable receipts
or other documentation, including copies of time records. Payment Terms: Net
30 days from receipt of invoice.
5. The parties acknowledge that this Confirmation will not be binding upon Visa
unless and until it is executed by both parties and a Visa Business Affairs
staff member in the appropriate space below.
CATUITY, INC. VISA U.S.A. INC.
("Seller") ("VISA")
By________________________________ By___________________________________
Name______________________________ Name ________________________________
Title_____________________________ Title________________________________
Date______________________________ Date ________________________________
VISA BUSINESS AFFAIRS APPROVAL:
By_____________________ Date_________
<PAGE>
ATTACHMENT 2
STANDARDS OF VENDOR CONDUCT
The following guidelines should be followed by all vendors, including vendors
working on behalf of Visa while at Visa offices, traveling on behalf of Visa, or
performing work on behalf of Visa outside of Visa offices. These guidelines are
intended to clarify the most common questions about the extent of vendor
involvement in daily Visa events.
OFFICE PRIVILEGES: Generally vendors will perform their services on behalf of
Visa at their own Seller's office. Office accommodations may be provided by Visa
only when necessary for security reasons or because the use of proprietary
equipment or programs is required. If Visa does provide office accommodations,
vendors may be asked to move to different locations within Visa at any time.
Office amenities such as coffee bars, restrooms, and the cafeteria are available
to guests, including vendors, with the exception of particular occasions when
the cafeteria or a similar area has been reserved for employee functions.
Secretarial services may be made available to vendors for the purpose of
conducting Visa business only when dealing with secured or proprietary
materials. Guidelines for use of secretarial services may be established by the
vendor's Visa project supervisor .
Telephone service may be made available to vendors for the purpose of conducting
Visa business only when the vendor is required to perform services on site to
work with secured or proprietary materials. Personal telephone calls or calls
unrelated to Visa business (e.g., to other clients) must be restricted to a
minimum, and in no case should a vendor ask a secretary or receptionist to
handle personal telephone calls. Long- distance personal calls should not be
made from a Visa telephone except with the vendor's credit/calling card.
Additional telephone guidelines may be established by the vendor's Visa project
supervisor. Misuse of Visa telephones may result in immediate contract
termination.
Visa equipment and supplies may be used by vendor only when required to work
on-site with secured or proprietary materials or equipment. Personal use of any
Visa equipment, service, or supplies may be considered grounds for immediate
termination of a vendor's engagement.
SCOPE OF COMPANY PARTICIPATION: Vendors will be asked by their project manager
to attend only those meetings which relate to their contracted scope of work or
specific project. Vendors shall not attend corporate, division or department
staff meetings. When in doubt about whether or not participation in meetings is
expected or permitted, the vendor should check with the Visa project supervisor
with whom the vendor is contracting. As a rule, vendors are not included in
company-sponsored holiday or annual celebrations.
Management: The Visa project supervisor is responsible for project management,
as well as evaluation on completed work. In this regard, such supervisor will
give guidance as to the required outcome of the contracted project. It will be
up to the vendor to determine how to accomplish the desired results. If a vendor
provides one of its employees to Visa to complete a contractual arrangement, the
Visa project supervisor may provide project guidance to that employee. However,
it is the vendor Seller's responsibility to handle all issues regarding the
worker's compensation, satisfaction with Visa, assignments, time off, or Visa
personnel interactions.
GIFTS AND GRATUITIES: In order to avoid any activity that could be construed to
unduly influence judgment regarding the use of vendor resources, no gifts,
favors, gratuities, travel, entertainment, meals, or any other item or service
of any value should be offered to Visa employees by the vending Seller or its
employees or contractors.