Software License Agreement

EXHIBIT 10.2


SOFTWARE LICENSE AGREEMENT


THIS SOFTWARE LICENSE AGREEMENT (this "Agreement") is entered into as of December 10, 1996, between Integrated Payment Systems Inc., a Delaware corporation ("IPS"), and MoneyGram Payment Systems, Inc., a Delaware corporation (the "Company").


WHEREAS, IPS, First Data Technologies, Inc., a Delaware corporation ("FDT"), and the Company are parties to the Operations Agreement dated as of the date hereof (the "Operations Agreement"), pursuant to which IPS and FDT will provide, inter alia, certain data processing services to the Company; and


WHEREAS, IPS wishes to grant to the Company a license to use the Utility Software (as hereafter defined) on the terms and conditions set forth herein.


NOW, THEREFORE, in consideration of the premises and mutual covenants, representations, conditions and agreements hereafter expressed, the Parties (as hereafter defined) agree as follows:


1. Definitions. In this Agreement, unless the context shall otherwise require, the capitalized terms used herein shall have the respective meanings specified or referred to in this Section 1. Each agreement referred to in this Agreement shall mean such agreement as amended, supplemented and modified from time to time to the extent permitted by the applicable provisions thereof and hereof. Each definition in this Agreement includes the singular and the plural, and reference to the neuter gender includes the masculine and feminine where appropriate. References to any statute or regulations means such statute or regulations as amended at the time and include any successor legislation or regulations. The headings to the sections hereof are for convenience of reference and shall not affect the meaning or interpretation of this Agreement. Except as otherwise stated, reference to Sections and Exhibits means the Sections and Exhibits of this Agreement. The Exhibits are hereby incorporated by reference into and shall be deemed a part of this Agreement. Unless the context clearly indicates otherwise, the word "including" means "including but not limited to".


"Affiliate" means, with respect to any Person, any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person;


provided, however, that IPS and its Affiliates shall not be deemed Affiliates of the Company and the Company and its Affiliates shall not be deemed Affiliates of IPS.


"Agreement" shall have the meaning set forth in the first paragraph hereof.


"Business" means the Consumer Money Wire Transfer Services marketed under the name "MoneyGram"(SM) and the sales and distribution of a "MoneyGram" phonecard.


"Company" shall have the meaning set forth in the first paragraph of this Agreement.


"Consequential Damages" means any liability, Loss, Expense or damage, whether in an action arising out of breach of warranty, breach of contract, delay, negligence, theory of tort, strict liability or other legal or equitable theory, for indirect, special, reliance, incidental, punitive or consequential damages or commercial loss, injury or damage, including loss of revenues, profits or use of capital or production.


"Consumer Money Wire Transfer Services" means the service of transferring the right to money using computer or telephone lines, or any technology now existing or later developed, from one person to a different person through a MoneyGram Agent and the services marketed under the phrases "Express Payment" and "Cash Advance."


"Contribution Agreement" means the Contribution Agreement dated as of the date hereof among the Company, IPS and First Data Corporation, a Delaware corporation.


"Costs" means all direct costs, expenses and charges plus all indirect costs, expenses and charges, excluding allocations of overhead.


"Data Processing Services" means the data processing services provided by IPS and its Affiliates to the Company under the Operations Agreement.


"Dispute" means any and all disputes, controversies or claims between the Parties arising from or in connection with this Agreement or the relationship of the Parties whether based on contract, tort, common law, equity, statute, regulation, order or otherwise.


"Expenses" means any and all reasonable expenses incurred in connection with investigating, defending or asserting


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any claim, action, suit or proceeding incident to any matter indemnified against hereunder (including court filing fees, court costs, witness fees and reasonable fees and disbursements of legal counsel, investigators, expert witnesses, accountants and other professionals).


"FDT" shall have the meaning set forth in the first recital to this Agreement.


"Force Majeure Event" shall have the meaning specified in Section 10(c).


"Governmental Body" means any foreign, federal, state, local or other governmental authority or regulatory body.


"Intellectual Property" means any United States patent, trademark, service mark, trade dress, logo, trade name, copyright, mask work, trade secret, confidential information, publicity and privacy rights or other similar or related property right.


"IPS" shall have the meaning set forth in the first paragraph of this Agreement.


"Losses" means any and all losses, Costs, obligations, liabilities, settlement payments, awards, judgments, fines, penalties, damages, deficiencies or other charges.


"MoneyGram Agent" means a Person that has contracted with Travel Related Services, IPS or the Company, as the case may be, to provide the Consumer Money Wire Transfer Services provided by the Business.


"MoneyGram Application Software" shall have the meaning set forth in the Contribution Agreement.


"Operations Agreement" shall have the meaning set forth in the first recital to this Agreement.


"Party" means a party to this Agreement and its permitted successors and assigns.


"Person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or Governmental Body.


"PC MoneyGram Application Software" shall have the meaning set forth in the Contribution Agreement.


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"Services" shall have the meaning set forth in Section 5(a).


"Travel Related Services" means American Express Travel Related Services Company, Inc., a New York corporation.


"Utility Software" means that certain software owned by or licensed to IPS or its Affiliates used in the Business, together with the documentation (if any) relating thereto as described in Exhibit A.


2. License Grant.


(a) Utility Software. IPS hereby grants to the Company a perpetual, irrevocable, worldwide, nonexclusive, royalty-free license to use the Utility Software in the Business or for any other purpose. The foregoing license shall include the right to assign, transfer and modify the Utility Software and to distribute, license or sublicense derivative works incorporating the Utility Software.


(b) Reservation. All right, title and interest in and to the Utility Software, other than those rights expressly granted herein, shall remain in IPS and its licensors.


(c) Assignment. The Company may assign any of its rights under this Agreement (whether by operation of law or otherwise), including the license granted pursuant to this Section 2, in accordance with the provisions of Section 10(e).


(d) Company Covenants. The Company hereby agrees that it will use reasonable efforts to cause any licensee, sublicensee or assignee with respect to the Utility Software licensed to the Company pursuant to this Agreement to comply with the terms and conditions of this Agreement.


3. Delivery of Software.


(a) Initial Delivery. Within 90 days of the Parties' execution of this Agreement, IPS shall deliver to the Company the Utility Software (including the source code, object code, JCLs and existing documentation) in the form and format set forth in Exhibit B.


(b) Final Delivery. Upon (i) the termination of all of the Data Processing Services, whether as a result of the termination of the Operations Agreement, in whole or in


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part, and (ii) the Parties having executed and delivered an amendment to
Exhibit A, in form and substance reasonably acceptable to each Party, which
amendment shall set forth a description of the Utility Software as of the
date of such amendment, IPS shall deliver t ...