Facilities Agreement - First USA Merchant Services Inc. and First Virtual Holdings Inc.
FACILITIES AGREEMENT
THIS AGREEMENT, dated as of August 14, 1996 (the "Agreement Date"), is by and
between First USA Merchant Services, Inc. (First USA") and First Virtual
Holdings, Inc. ("First Virtual").
WITNESSETH:
WHEREAS, First USA is currently (i) providing First Virtual access to certain
office space, (ii) permitting First Virtual to place a certain cabinet and
certain equipment in such space and (iii) permitting First Virtual to use
certain communication lines, equipment, furniture and services, all as described
in Section 1 of Exhibit A hereto (collectively, the "Existing Facilities") and
WHEREAS, First Virtual desires to continue to have access to and use the
Existing Facilities and to sublease from First USA a particular portion of such
space and place an additional cabinet in such space, as described in Section 2
of Exhibit A hereto (collectively, the "Additional Facilities"); and
WHEREAS, First USA is willing, on the terms and conditions set forth in this
Agreement, (i) to continue to provide and permit First Virtual's use of the
Existing Facilities and (ii) to provide and permit First Virtual's use of the
Additional facilities, (collectively, the "Facilities");
NOW THEREFORE, First USA and First Virtual agree as follows:
1. First USA shall, to the extent permitted by applicable
agreements and laws, provide and permit First Virtual's use of the Facilities,
seven (7) days a week and twenty-four (24) hours a day, all upon and subject to
the terms and conditions of this Agreement. Either party may, from time to time
upon at least (90) ninety days prior written notice to the other discontinue
First USA's provision and First Virtual's use of any or all of the Facilities
as of a date specified in such notice.
2. The Facilities shall be and remain the property of First USA
and First Virtual shall have no rights or interests therein, or in any other
space, communications lines, equipment, furniture, software, products, work,
methods, procedures, data, manuals, writings or other property of First USA,
except as described herein. First USA shall have no obligation, pursuant to
this Agreement or otherwise, to provide any property of First USA to First
Virtual other than the Facilities in accordance with this Agreement. First
Virtual shall cease all use of the Facilities (and return to First USA all
property of First USA in First Virtual's possession) upon discontinuance of
First USA's provision and First Virtual's use of particular Facilities or
termination of this Agreement as hereinafter provided.
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3. In compensation for First USA's provision and First Virtual's
use of the Facilities, First Virtual shall pay amounts as set forth in Section
3 of exhibit A hereto. Any amount payable by First Virtual pursuant to this
Agreement for which a time of payment is not otherwise specified shall be due
and payable within thirty (30) days after receipt by First Virtual of an
invoice therefor from First USA.
4. First Virtual shall use the Facilities for the sole and
exclusive purpose of operating its Internet Payment System for its business
purposes. First Virtual shall comply with all applicable laws with respect to
its use of the Facilities and its business. First Virtual shall take good care
of the Facilities and shall comply with the terms and conditions of any leases,
licenses or other agreements relating to the Facilities. First Virtual shall
comply with all of First USA's policies and procedures regarding access to and
use of the Facilities, including, without limitation, procedures for the
physical security of the Facilities.
5. First USA shall have the exclusive right, in its sole
discretion, to manage the Facilities, including, without limitation, the
establishment of appropriate priorities for use of the Facilities. First
Virtual's use of the Facilities shall be subject to First USA's scheduling of
such Facilities and determination of the availability thereof. Such scheduling
shall include, without liquidation, the scheduling of holidays, maintenance of
Facilities, modification or rearrangement of Facilities and other matters which
may impact the availability of the Facilities for use by First Virtual. First
USA reserves the right, in its sole discretion, to designate the location of
the Facilities and modify or rearrange the Facilities, from time to time, so
long as such modification or rearrangement does not materially adversely affect
First Virtual's use thereof. Except as agreed in writing by the parties
hereto, First USA shall have no obligation, and First Virtual shall have no
right, to make any improvements or changes involving the Facilities. In
providing the Facilities to First Virtual hereunder, First USA shall have no
obligation to pay any amount (other than amounts to be reimbursed by First
Virtual in accordance with this Agreement) or incur any other obligation or
liability in order to permit its provision of the Facilities. First USA
reserves the right to consent to the particular equipment and other items to be
placed in the Space (as defined in Exhibit A hereto) by First Virtual. Upon
First USA's request, First Virtual shall discontinue use of and remove
particular equipment and other items placed in the Space by First Virtual.
6. This Agreement does not restrict in any way First USA's right
to use the Facilities or to permit third parties access to and use of the
Facilities. In using the Facilities, First Virtual shall not interfere with
any such use.
7. First USA and First Virtual shall each designate an employee
as a representative (respectively, the "First USA Representative" and the
"First Virtual Representative") who shall have the authority and power to act
and make decisions on behalf of First USA and First Virtual, respectively, with
respect to this Agreement and all matters pertaining hereto. Either party may
change its designated representative at any time or from time to time by
providing notice thereof to the other. First Virtual shall make use of the
Facilities only through bona fide employees of First Virtual or through
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employees of third party vendors of First Virtual approved in writing by First
USA. First Virtual shall cause all such employees and third party vendors to
comply fully with the terms and conditions of this Agreement and, upon First
USA's request, to execute confidentiality agreements satisfactory to First USA.
First USA reserves the right to consent to First Virtual's Facilities
Representative and employees of First Virtual or its third party vendors who
shall be making use of the Facilities. Upon First USA's request, First Virtual
shall discontinue an employee's or a third party vendor's use of the
Facilities.
8. In addition to the provision of the Facilities pursuant to
this Agreement, First USA shall provide First Virtual such other space,
communications lines, equipment, furniture, services and other items, as First
Virtual may reasonably request from time to time during First USA's provision
of the Facilities pursuant to this Agreement, under mutually acceptable terms
and conditions. Any such space, communications lines, equipment, furniture,
services and other times shall be deemed part of the Facilities for purposes of
this Agreement and subject to the terms and conditions of this Agreement and
shall be paid for by First Virtual as provided in this Agreement or as
otherwise agreed by the parties.
9. Except as otherwise provided in this Agreement or as otherwise
agreed in writing by First USA and First Virtual, First USA and First Virtual
shall each be responsible for any costs and expenses it incurs in connection
with the performance of this Agreement or operation of its business.
10. First USA and First Virtual each acknowledge that, as a result
of this Agreement, each party may obtain certain confidential and/or
proprietary information of the other or of the other's affiliates or their
respective customers, including, without limitation, the terms of this
Agreement. All such information, whether obtained before or after the
Agreement Date, was and shall be maintained by the recipient party in strict
confidence and shall be used only for purposes of this Agreement and shall not
be disclosed by the recipient party its agents or employees without the other
party's prior written consent, except as may be necessary by reason of legal,
accounting or regulatory requirements beyond the reasonable control of the
recipient party. The provision of this Section 10 shall survive termination of
this Agreement for any reason.
11. Except as otherwise agreed in writing, during First USA's
provision of the Facilities pursuant to this Agreement and for (1) year
thereafter, neither First USA nor First Virtual nor any of their affiliates
shall offer employment to or employ any person employed then or within the
preceding twelve (12) months by the other or any affiliate of the other. The
provisions of this Section 11 shall survive termination of this Agreement for
any reason.
12. If either party defaults in the performance of any of its
obligations pursuant to this Agreement and if such default continues for more
than (30) thirty days after written notice specifying the default is given to
its by the other party, the other party
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may, by giving the defaulting party written notice thereof, terminate this
Agreement as of a date specified in such notice of termination.
13. First USA and First Virtual each acknowledge that the breach
of this Agreement by it cannot readily or adequately be compensated for in
damages and that the breach of any provisions hereof shall cause irreparable
injury to the other party. First USA and First Virtual each shall therefore be
entitled, in addition to all other rights or remedies it may have, in law or in
equity, to injunctive and other equitable relief to prevent any violation of
the provision of this Agreement. The provisions of this Section (13) shall
survive termination of this Agreement for any reason.
14. During the term of this Agreement, First Virtual shall procure
and maintain, at its expense, insurance as required by First USA and all other
insurance, if any, required by applicable law from time to time. All insurance
procured by First Virtual pursuant to this Agreement must be procured from an
insurer or insurers approved by First USA, which approval shall not be
unreasonably withheld. Such insurance shall name First USA as additional
insured. All liability policies shall be primary without right of contribution
from any insurance carried by First USA. First Virtual shall furnish to First
USA endorsements and certificates evidencing the coverage required above.
15. First Virtual shall defend, indemnify and hold First USA
harmless from any liability, loss, claim, action, damage, cost and expense
(including, without limitation, reasonable attorneys' fees and court costs)
arising out of (i) breach, or any allegation of a breach, by First Virtual
pursuant to this Agreement (ii) fault or negligence, or any allegation of fault
or negligence, of First Virtual, its employees or agents, (iii) First Virtual's
access to or use of the Facilities, (iv) damage to any property or injuries,
sickness or death of any person (x) caused by, or alleged to be caused by, any
work or operations performed by First Virtual or any other entity under or by
reason of this Agreement or (y) which damage, injury, sickness or death occurs
on, in or about, or is claimed to have occurred on, in or about the Facilities
or relate to, or is claimed to relate to, access to or use of the Facilities.
The provisions of this Section 15 shall survive termination of this Agreement
for any reason.
16. First Virtual hereby acknowledges that it is familiar with the
Facilities it has had the opportunity to independently examine and evaluate
the Facilities and shall continue to do so throughout the term of this
Agreement. First Virtual further acknowledges that First USA has made no
attempt to make the Facilities useful for any party other than First USA.
First USA is providing the Facilities to First Virtual hereunder as a
convenience and makes no guarantees with respect to the availability or
performance of the Facilities and shall not be liable to First Virtual or
otherwise in the event of the unavailability or failure thereof for any reason.
THEREFORE, FIRST VIRTUAL ACCEPTS THE FACILITIES "AS IS" AND FIRST USA MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT
TO THE FACILITIES OR RESULTS TO BE DERIVED FROM THE USE OF THE FACILITIES OR
ANY OTHER ITEMS
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PROVIDED OR WORK PERFORMED PURSUANT TO THIS AGREEMENT. The provisions of this
Section 16 shall survive termination of this Agreement for any reason.
17. For all claims relating to this Agreement, First Virtual's
exclusive remedy shall be injunctive and other equitable relief to prevent such
breach. As provided in Section 13 hereof, and without limiting the rights and
remedies set forth therein, in the event First Virtual is denied entry into the
Space (as defined in Exhibit A hereto) in breach of this Agreement, First
Virtual shall be entitled to injunctive and other equitable relief to prevent
any violation of the provisions of this Agreement. In no event shall First USA
have any liability for damages of any nature including, without limitation,
actual, direct, indirect, punitive, special or consequential damages or
liabilities of any kind, such as loss of revenue or loss of business. The
provisions of this Section 17 shall survive termination of this Agreement for
any reason.
18. Each party hereto shall be excused from performance pursuant to
this Agreement for any period it is prevented from performing in whole or in
part, as a result of an act of God, war, civil disturbance, court order, labor
dispute or other cause beyond its reasonable control and such nonperformance
shall not be a ground for termination or default. In the event of any disaster,
First USA shall determine, in its sole discretion, what, if any, disaster
recovery procedures shall be implemented with respect to the Facilities and
shall have no obligations with respect to disaster recovery with respect to
First Virtual's use of the Facilities. First Virtual shall be responsible, at
its expense, for any backup or other disaster recovery procedures it desires to
implement with respect to its use of the Facilities.
19. This Agreement shall be binding on First USA and First Virtual
and their respective successors and assigns, but First Virtual may not assign
this Agreement without the prior written consent of First USA.
20. No delay or omission by either party hereto to exercise any
right or power hereunder shall impair such right or power or be construed to be
a waiver thereof. The provision of this Section 20 shall survive termination
of this Agreement for any reason.
21. Upon the written request of either First USA or First Virtual,
any dispute, controversy or claim in connection with this Agreement shall be
submitted by the parties to a neutral mediator, mutually agreed upon by the
parties, for resolution. No formal proceedings for the resolution of such
dispute, controversy or claim may be commenced until either or both of the
parties conclude that amicable resolution through continued mediation of the
matter is not likely. If any legal action or other proceeding is brought for
the enforcement of this Agreement, or because of such dispute, controversy or
claim, the prevailing party shall be entitled to recover reasonable attorney's
fees and other costs incurred in that action or proceeding, in addition to any
other relief to which it may be entitled. The provisions of this Section 21
shall survive termination of this Agreement for any reason.
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22. This Agreement may be executed in several counterparts, all of
which taken together shall constitute one single agreement between First USA
and First Virtual.
23. First USA, in providing the Facilities hereunder, is acting
only as an independent contractor. First USA does not undertake by this
Agreement or otherwise to perform any obligation of First Virtual, whether
regulatory or contractual, or to assume any responsibility for First Virtual's
business or operations. First USA has the sole right to supervise, manage,
contract, direct and procure the Facilities and to perform or cause to be
performed all services to be performed hereunder.
24. If any provision of this Agreement is declared or found, by a
court of competent jurisdiction, to be illegal, unenforceable or void, then
both parties shall be relieved of all obligations arising under such provision,
but only to the extent that such provision is illegal, unenforceable or void,
and this Agreement shall be deemed amended by modifying such provision to the
extent necessary to make it enforceable while preserving its intent. If the
remainder of this Agreement is capable of substantial performance, then the
remainder of this Agreement shall not be affected by such declaration or
finding and each provision not so affected shall be enforced to the fullest
extent permitted by law.
25. All notices required or permitted to be given under this
Agreement shall he deemed given if given in writing by personal delivery or by
United States mail, registered or certified mail, return receipt requested,
postage prepaid, (i) to First USA at 1601 Elm Street, Suite 600, Dallas, Texas
75201, Attention: Ray McArdle, with a copy to 1601 Elm Street, Suite 4700,
Dallas, Texas 75201, Attention: General Counsel or (ii) to First Virtual at
11975 El Camino Real, Suite 300, San Diego, California 92130, Attention: John
Donegan, Vice President of Operations, with a copy to 11975 El Camino Real,
Suite 300, San Diego, California 92130, Attention: Philip Bane, Legal Counsel,
or, in either case, to such other address as the party to receive the notice
has designated by notice to the other party.
26. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS, OTHER THAN CHOICE OF LAW RULES, OF THE STATE OF
TEXAS.
27. This Agreement may be executed in several counterparts, each
of which shall be an original, and all of which shall constitute one and the
same instrument.
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28. This Agreement represents the entire agreement of the parties
hereto with respect to the subject matter hereof, and all prior negotiations,
understandings and agreements are merged herein. There are no understandings
or agreements relating hereto which are not fully expressed herein and no
change, waiver or discharge of this Agreement shall be valid unless in writing
and executed by the party against whom such change, waiver or discharge is
sought to be enforced.
IN WITNESS WHEREOF, the parties hereto have each executed this
Agreement.
First USA Merchant Services, Inc. First Virtual Holdings, Inc.
By: By:
----------------------- ------------------------
Title: Title: President
-------------------- --------------------
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EXHIBIT A
FACILITIES
1. The Existing Facilities consist of:
a. Access to First USA's office space located on the sixth floor
of 1601 Elm Street, Dallas, Texas, consisting of a computer room, lab and
adjoining conference rooms, and to First USA's office space located on the
seventh floor of 1601 Elm Street, Dallas, Texas, consisting of a break room, in
each case to which space First USA provided First Virtual access immediately
prior to the Agreement Date (the "Space").
b. The right to place a cabinet (containing computer equipment)
and a router, as provided by First Virtual immediately prior to the Agreement
Date, in the Space, as permitted by First USA immediately prior to the
Agreement Date.
c. Use of two (2) desks, communications lines and connector boxes
adjacent to such desks, all as provided by First USA immediately prior to the
Agreement Date, which communications lines connect such connector boxes with
the cabinet described above.
d. Use of a MCI T-1 internet communication line, as provided by
First USA immediately prior to the Agreement Date, which communication line
connects to the router described above.
e. Use of four (4) dial-up modem communication lines, as provided
by First USA immediately prior to the Agreement Date, which communication lines
run through First USA's PBX and connect to the cabinet described above.
f. Use of a fifty-six (56) KB communication line, as provided by
First USA immediately prior to the Agreement Date, which communication line
connects the data center with Electronic Data System Corporation's facility in
Westlake, Ohio.
Except as otherwise provided in this Agreement, or as otherwise agreed in
writing by the parties, First USA will furnish First Virtual the Existing
Facilities and First Virtual may use the Existing Facilities in the same manner
as existed immediately prior to the Agreement Date.
2. The Additional Facilities consist of:
a. First USA's sublease of a particular portion of the Space.
First USA hereby subleases to First Virtual, and First Virtual hereby accepts, a
portion of the Space, which shall consist of approximately sixty (60) square
feet of space
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as identified by First USA (the "Leased Premises"). First USA reserve the
right, in its sole discretion, to relocate within the Space the Leased
Premises, from time to time, so long as such relocation does not materially
adversely affect First Virtual's use thereof. As provided in Section 5 of this
Agreement, except as agreed in writing by the parties hereto, First USA shall
have no obligation, and First Virtual shall have no right, to make any
improvements or changes involving the Leased Premises. First Virtual may, at
its expense, enclose or otherwise demarcate the Leased Premises upon First
USA's written approval of such enclosure or demarcation (and, upon First USA's
request, First Virtual shall, at its expense, promptly remove such enclosure or
demarcation and return the Space to its condition prior to installation of such
enclosure or demarcation). In addition, as provided in Section 5 of this
Agreement, certain of the Facilities may be located within the Leased Premises
as designated by First USA. As provided in Section 1 of this Agreement, First
USA hereby subleases the Leased Premises to First Virtual to the extent
permitted by applicable agreements and laws and First Virtual shall be bound by
and comply with any primary leases or other agreements relating to the Lease
Premises. First USA shall have the right to access to the Leased Premises and
First Virtual shall provide First USA with keys or other items, if any,
necessary for such access. As part of the Additional Facilities, the Leased
Premises and First Virtual's access to and use thereof shall be subject to the
terms and conditions of this Agreement and either party may, upon at least
ninety (90) days prior written notice, discontinue such lease and First
Virtual's use of the Leased Premises as of a date specified in such notice,
b. The right to place a cabinet (containing computer equipment),
as provided by First Virtual, in the Space. Such cabinet and computer
equipment shall be substantially the same as the cabinet included in the
Existing Facilities.
C. The right to place a cabinet (for First Virtual's storage of
spare parts for computer equipment of First Virtual contained in the cabinets
described above), as provided by First Virtual, in a locked storage area in the
Space. Such cabinet shall not exceed six (6) feet in height, five (5) feet in
length and two (2) feet in depth.
d. Access to permit First Virtual's backup data cartridge
rotation by periodically removing First Virtual's data cartridge's used by
First Virtual with respect to the computer equipment described above and
storing such data cartridge's with a third party vendor of First Virtual at an
off-site facility.
e. First USA shall request Electronic Data Systems Corporation to
provide services reasonably requested by First Virtual and relating to First
Virtual's operations at the Space.
To the extend available, First Virtual may connect its equipment at the
Facilities to any uninterrupted power source utilized by First USA at the
Facilities.
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3. First Virtual shall pay the following:
a. For each month during the term of this Agreement, First
Virtual shall pay to First USA a monthly fee of $1,000.00. Each such monthly fee
shall be due and payable on the 10th day of the month for which such monthly fee
is payable. The monthly fee for any partial month shall be prorated on a per
diem basis. In the event any rent or other charges paid by First USA related to
the Space are increased during the term of this Agreement, First USA may, upon
written notice to First Virtual, increase such monthly fee by the same
percentage as such rent or other charges paid by First USA are increased.
b. With respect to (i) the MCI T-1 internet communications line
described above, (ii) the fifty-six (56) KB communications line described
above, (iii) services provided by Electronic Data Systems Corporation as
described above and (iv) the Facilities provided by First USA pursuant to
Section 8 of this Agreement, First Virtual shall, at First USA's option, pay or
reimburse First USA for any costs and expenses incurred in the provision
thereof.
c. There will be added to any amounts payable hereunder, and First
Virtual shall pay First USA, amounts equal to any taxes based thereon, or upon
this Agreement or the Facilities provided hereunder, or their use (including,
without limitation, state and local sales, use, privilege and excise taxes based
on gross revenues).
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