Agreement
This Agreement is made as of March 15, 2002 between Creative
Partners International LLC, a Delaware limited liability company
("CPr'), and Systems Engineering & Integration Defense
Contractors, Inc., a California Corporation C'SEIDCON').
Backgrgund:
CPI is an authorized North American distributor of certain
products of Wavetrend Technologies (Proprietary) Limited
CWavetrend"). "ProductsP means the Wavetrend products listed in
Appendix A, attached hereto,:, as modified by CPI from time to
time. CPI and SEIDCON wish to partner for the purpose, among
other things, of marketing the Wavetrend P.C. Access Control
product and the Wavetrend tags/cards/readers for the U.S.
Government Market and U.S. Government Contractors. "U.S.
Government Xxxxxx' means any U.S. federal, state, county and
local governmental authorities, U.S. military services, U.S.
government authorities and instrumentalities located overseas
and U.S. embassies and consulates as well as with the U.S.
federal, state, county and local governmental authorities and
the U.S. military services. "U.S. Government Contractore' means
any company that is engaged in providing products and/or
services to the authorities described as the U.S. Government
Market.
NOW, TBEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
1.CPI represents -and warrants that it is an authorized United
States distributor of the Products.
2.CPI agrees that for so long as this Agreement is in effect,
and subject to the terms and conditions set forth herein, CPI
will sell the Products exclusively to SEIDCON for resale to
the U.S*. Government Market and U.S. Government Contractor
Market. Notwithstanding the foregoing, if SEIDCON should fail
to meet the minimum volume targets described in Section 4 at
any time during the term of this Agreement, CPI's obligation
"to sell the Products to SEIDCON will thereafter cease to be
exclusive and CPi will thereafter be free to sell the Products
to any third party in addition to SElDdON.
3.(a) SEIDCON ag!xxxx that for so long as this Agreement is in
effect, and subject to the terms and cohditions set forth
herein, SEIDCON will order and purchase the Products
exclusively from CPI for resale to the U.S. Government Market
and U.S. Government Contractor Market.
(b) For so long as this Agreement is in effect, and subject to
the terms and conditions set forth herein, SEIDCON also may
order and purchase the Products from CPI for resale to
U.S.-based customers in the private sector; and CPI will sell
the Products to SEIDCON for resale to such customers except if
the customers are parties with which CP1 has a pre-existing
relationship, in which case CPI will not be obligated to sell
the Products to SEIDCON for resale.
(c) For the protection of both parties, all orders submitted by
SEH)CON shall be initiated by written purchase orders. No order
shall be binding upon CPI until accepted by CPI in writing. CPI
shall use its best efforts to notify SEIDCON of the acceptance
or rejection of an order and of the assigned delivery date for
accepted orders within five (5) business days after receipt of
the purchase order.
4.Wavetrend has agreed to develop a P.C. Access Control product
that is suitable for
use on the networks by the U.S. Government Market and U.S.
Government
Contractor Markei. CPI will use all reasonable efforts to
obtain firm commitments
from Wavetrend f6r (1) a network version of P.C. Access Control
product with strong
passwords for commercial sales, and (2) a U.S. Government
Market/U.S.
Governinent Contractor Market, version (for all Government
levels) that has the
features of #1 and meets Department of Defense CDoD") and other
federal
requirements for a minimum TCSEC C2 security level
implementation and, in
addition must be compliant with FIPS PUB 140-1/2 and the
government
FARS/DFARS. CPI agrees to refer all U.S. Government Market and
U.S.
Government Contractor Market clients to SEIDCON for sales,
installation, training
and maintenance of the Products. SEIDCON agrees to use all
reasonable efforts to
resell a minimum of 100,000 unitstseats per year of the PC
Access Control product
for the U.S. Government Market/U.S. Government Contractor
Market; provided that
the obligation her eunder is conditioned upon completion by
Wavetrend of a network
version of the P.~. Access Control product that is suitable for
resale to the U.S.
Government Mariet and the U.S. Government Contractor Market;
and provided
further that the start date for each year will be the date that
Wavetrend first completes
such products and each anniversary of such date thereafter. As
provided in Section 5,
if SEIDCON should fail to meet the 100,000 per year volume
target described above
at any time during', the term of this Agreement, CPI's
obligation to sell the Products to
SEIDCON will thereafter cease to be exclusive and CPI will
thereafter be free to sell
the Products to any third party in addition to SEIDCON.
5.(a) SEIDCON will not seek to purchase any Wavetrend products directly from
Wavetrend or oth~rwise interfere with CPI's relationship with
Wavetrend, and will
not seek to circumvent such relationship and CPI's rights as
Wavetrend's authorized
distributor. Notwithstanding the foregoing, SEIDCON technical
and management
personnel may interface directly with Wavetrend
technical/management personnel, to
the extent agreea~le to Wavetrend, for the purpose of technical
interface, technical
assistance and data exchange and gathering, provided that
SEIDCON may be required
by Wavetrend to execute an appropriate confidentiality
agreement prior thereto. To
the extent reasona I ble and appropriate, it is also
anticipated that SEIDCON, CPI and
Wavetrend may exchange proprietary information and data for the
purpose of
ensuring product reliability, ergo marketability (subject to
execution of appropriate
confidentiality agreements). The following shall apply in the
case of confidential
information exch~nged between SEIDCON and CPI: Each of SEIDCON
and CPI
(the "Receiving Party") will maintain in confidence and will
not use, except for the
furtherance of its'Lobligations under this Agreement, any
information received from
the other party (the "Disclosing Party") that has been
identified by the Disclosing
Party as confiden#al. The Receiving Party will be responsible
for ensuring that its employees, agents and consultants do not
disclose or make any unauthorized use of any confidential
information. The foregoing obligations of confidentiality will
not apply to the extent that the Receiving Party is required to
disclose information by law, order or regulation of a
governmental agency or a court of competent jurisdiction
(provided that the Receiving Party will inform the Disclosing
Party before making any such disclosure so that the Disclosing
Party may have an opportunity to seek appropriate protection of
such information prior to its disclosure by the Receiving Party)
or the extent that the information is in or subsequently enters
the public domain or is in or comes into the possession of the
Receiving Party from a third party source that has no obligation
of confidentiality to the Disclosing Party. All confidential
information and data shall be reasonably identified as
"confidential".
(b) SEIDCON will not seek to sell the Products to, or otherwise
interfere with CPI's relationship with, any private sector party
that is known by SEIDCON to have a preexisting relationship with
CPI. SEIDCON will be deemed to have knowledge of such a
pre-existing relationship if it is aware of or learns of such
relationship or if it is advised by CPI ofthe existence of such
relationship.
6.CPI will provid~ SEIDCON with marketing materials, product
samples, and demonstration hai.Aware, if any, which may be
available from Wavetrend for the Products. SEIDCON's use of
such materials is subject to Section 8.
7.CPI agrees to use, all reasonable efforts to seek consent from
Wavetrend to special packaging requireients using SEIDCON's
logos with the Products.
8.SEIDCON will us * e all Wavetrend intellectual property in accordance with
applicable
law and regulations and in accordance with applicable
restrictions imposed as a
matter of contract law, and will not misuse or misappropriate
any such intellectual
property. Wavetrend intellectual property may include, without
limitation,
trademarks, copyrighted material and proprietary technology,
software and hardware.
This Agreement does not grant to SEIDCON any license or right
in any Wavetrend
intellectual property.
9.Both CPI and SEIDCON will be responsible for complying with
federal, state and local laws and regulations, if any, that
are applicable respectively to each of them in connection with
ap'y sales of the Products to the U.S. Government Market and
U.S. Government Contractor Market, and in connection with any
other sales of the Products. For the avoidance of doubt, it is
understood and agreed, however, that CPI will have no
responsibility for being aware of or complying with any
federal, state or local government procurement or contracting
rules and regulations, and that SEIDCON will be the seller of
record to the U.S. Government Market and the U.S. Government
Contractor Market and that CPI will not be identified or
referenced in any communication or document provided to or
exchanged with any federal, state or local govemmenta.1
official, office, branch, division, agency or instrumentality
without the prior knowledge and prior written consent of CPL
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10. (a) SEIDCON will be solely responsible for providing all
management, marketing
and technical support and assistance, and all associated
personnel, that may be
necessary and appropriate to support the use of the Products by
its customers. CPI
will have no responsibility in this regard.
(b) Whenever CPI in its discretion considers appropriate, CPI
may direct its own private sector customers for Wavetrend
products C'CPI Customers'), who wish to contract for third party
system management software and/or third pa4 technical support
and assistance services to contact SEIIDCON. CPI does not intend
to offer any such services to CPI customers for Wavetrend
products. SEIDCON will undertake good faith discussions with
all CPI customers that have been directed to contact SEIDCON and
will, at its discretion, enter into appropriate agreements with
such CPI Customers for the provision of such software and/or
such support and assistance services. For each CPI customer that
is referred to SEIDCON by CPI and with which SEIDCON enters into
an agreement or formal arrangement for the provision of such
software and/or such support and assistance services, CPI will
be entitled to a finder's commission which shall equal 15% of
the aggregate software or service, fees received by SEBDCON from
such referred CPI Customer. SEIDCON will pay CPI its 15%
finder's commission for each such arrangement entered into by
SEIIDCON within 5 days after the end of each month that SEIDCON
receiv6s fees from such CPI Customer, based on the aggregate
fees collected by SEIDCON from such referred CPI Customer during
each such month. Notwithstanding anything to the contrary set
forth above,'there were be no finder s commission on
pdst-installation maintenance contractor services (i.e., those
situations where SEIIDCON has arranged for a third party to
provide maintenance services and which are pass-throughs from
the referred CPI Customer to SEIDCON to the third party
maintenance contractor).
11. The price schedul that is in effect for the Products under
this Agreement as of the date hereof is set forth in Appendix
A, attached hereto. SEIIDCON intends to add the Products to
SEIDONs General Services Administration (GSA) Schedule.
Pricing for products added to the GSA schedule cannot be
changed upward for the entire 5year term of the GSA schedule,
except annual Cost of Living percentage increases, as approved
by the U.S. government (and this agreement must be in writing
from the manufacturer and distributor when being submitted to
GSA for approval). CPI reserves the right I to increase its
then-published non-GSA prices at any time during the term of
this Agreement, unless a separate quotation is acquired from
CPI by SEIDCON to accommodate a non-GSA U.S. Government
Market/U. S. Government Contractor Markei bid requiring a
quote to be effective for a specified period of time. This
period of:. time shall not exceed 120 days without prior
written authorizatiorx/appro'val resulting from negotiations
between CPI and SEIDCON. In the event of a price increase, CPI
will honor orders already accepted by CPI at prices in effect
prior to ~he effective date of the price increase and
scheduled by CPI for shipment within ninety (90) days after
the effective date of the price increase. CPI will also
provide Ia new price listing to SEIDCON to replace Appendix A
of this agreement. Ordets scheduled by CPI for delivery after
ninety (90) days from the
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effective date of the price increase shall automatically be
adjusted by CP1 to reflect the new price. CPI agrees to notify
SEIDCON of any order affected by the automatic adjusting of
price in a timely manner to allow SEII)CON to confer with the
customer and ensure the cuAomer agrees to the new price and has
the opportunity to cancel the order with no liability to
SEIDCON, CPI or SEIDCON's customer. Orders accepted by CPI after
the e~ffective date of the price increase will be accepted at
the increased price. In the event of a price decrease, unshipped
orders already scheduled by CPI shall be automatically adjusted
by CPI to reflect the price decrease.
12. CP1 agrees that payment by SEEDCON for any and all shipments
ordered by SEII)CON for the U.S. Government/U.S. Government
Contractor Market will be 5 days after payment to SEIDCON.
Payment to SEIDCON will be consistent with U.S. Government
Market/U.S. Government Contractor Market schedules for payment
under applicable ' federal rules and regulations, provided
that SEIDCON will undertake in each instance to obtain the
shortest payment period available or permissible under; such
schedules. Payment by SEIDCON in all other contexts will be
net 30 days from shipment of order from South Africa, unless
otherwise negotiated, in writing, prior to shipment.
13. CPI is responsible for all insurance, freight, shipping,
tariffs, taxes, VAT and other similar costs to Xxxxxx the
goods to SEIDCON's QA facilities located at 0000 X. Xx Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx, 00000. or to another
San Diego County address, siiould SEII)CON relocate; provided,
however, if insurance, freight, shipping, tariffs, taxes, VAT
and other similar costs should increase in aggregate by more
than 10% over the costs in effects as of the Effective Date of
this Agreement, then SEEDCON will share equally (501/6/50%) in
all such excess costs over and above the 10% threshold,- and
provided, further, that SEII)CON will exercise all reasonable
efforts to seek appropriate withdrawal or modification to the
extent available or permissible under federal rules and
regulations of the prices for the Products as set forth in
applicable U.S. Government Market/U.S. Government Contractor
Market schedules. SEIDCON is responsible for all freight,
shipping, tariffs, taxes, VAT and other similar costs~ from
that point to the customer's site, unless otherwise agreed
upon between CPI and SEIDCON. In some cases, CPI and SEIDCON
may agree to drop ship directly'to the end user to alleviate
excessive shipping costs for both CPI and SEIDCON. SEII)CON
also agrees to collect, and pay, all applicable sales taxes
due from its customers.
14. CPI will endeavor. to obtain Wavetrend's agreement to
enhanced cancellation clauses based on sample ~lauses provided
to CPI by SEIDCON. Should Wavetrend agree, this agreement
shall be amended to reflect the new cancellation clause or
clauses. Prior to any such agreement by Wavetrend, or if
Wavetrend does not agree, the cancellation clause set forth
hereinbelow will apply to all SEIDCON orders. CPI UT&TAanhs
1hat SIMIUUS *vx& *lTkrNAt I'm md&-ti-mix *NN& t4trj vuowkt,
signed by a client, as a term and condition for which the
client will be responsible.
SEIDCON may ~xxxxx any order (or portion of any order) where
SEIDCON's ultimate custornei is in the U.S. Government Market or
the U.S. Government Contractor Market prior to shipment. If the
cancellation covers no more than 5,000 units of any indivildual
item covered by the order, there shall be no penalty for the
cancellation. If the cancellation covers more than 5,000 units
of any individual item covered by the order, SEIDCON will pay a
cancellation penalty of 25% of the purchase price for each unit
of each individual item that exceeds the initial 5,000 units of
each suckindividual item.
15. CPI Will assure most favored customer pricing to SEIDCON
within each distinct market segment (e.g., U.S. Government/U.
S. Government Contractor Market, private sector, etc.) - thus
CPI will not offer to sell the Products to any of its
customers within each distinct market segment at better sales
prices than the prices that CPI offers to SEIDCON for
distribution to each such market.
16. If CPI and SEIDCON agree that SEEDCON should target a
particular market or a particular Product~ and if Wavetrend
has imposed a minimum quantity requirement upon CPI for such,
market or such Product, then SEIDCON agrees that such minimum
quantity requirements may in turn be imposed by CPI on
SEII)CON.
17. The Products will be warranted to the extent of Wavetrend's
warranty coverage. The warranty of Wavetrend that is
applicable as of the date hereof is attached as Appendix B. If
~Wavetrend's warranty coverage should change from the version
attached hereto, CPI agrees to be responsible for providing
SEIDCON with a copy of Wavetrend's warranty coverage as in
effect within 10 business days from the date of release of
such changed warranty coverage to CPI by Wavetrend.
18. SEIDCON is an i~dependent contractor to CPI and nothing
herein shall be deemed to establish a relationship of
principal and agent between CPI and SEIDCON. Accordingly,
neitfier SEIDCON, nor any of its employees or agents, shall
have any right, power or a~thority to, and shall not, create
or incur any liability or obligation with respect to CPI. This
Agreement shall not be construed as constituting the parties
hereto as a parthership or as creating any other form of legal
association or arrangement that would impose liability upon
one party for the act or failure to act of the other party.
19. Neither party hereto will be liable to the other for
consequential, special or indirect losses or damages,
including without limitation loss of profits. CPI's liability
for defective product will be limited to either refund of the
purchase price or replacement of the defective product. CPI
will not be liable for a failure or delay in delivery of any
of the Products under any order that has been accepted if the
failure or delay is due to an impediment beyond CPI's control
that could not reasonably have been avoided or overcoine
(including without limitation a failure or delay by Wavetrend
in completing the production of the Products in question).
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20. (a) This Agreement shall be effective as of the date set
forth on the first page hereof (the "Effective Date), and
shall continue for an initial period of twelve (12)
consecutive mont~s, unless it terminates sooner in accordance
with the terms of this Agreement. Th~reafter, the Agreement
shall be automatically extended for consecutive renewal
periods of twelve (12) months, provided that the Agreement may
be terminated by either party after the initial period upon no
less than 90 days prior written notice. The provisions in this
Agreement regarding confidentiality and use of intellectual
property as set forth in Sections 5 and 8 will survive any
termination of this Agreement. .
(b) Either party hereto may terminate the Agreement in the event
that (x) the other party materially breaches this Agreement and
fails to cure such breach within 30 days after notice of such
breach or (y) the other party shall become a the subject of
receivership, insolvency, bankruptcy, moratorium or similar
proceedings against such party, whether voluntary or
involuntary, provided that if the proceeding is involuntary,
such party shall have 30 days to obtain the discharge of such
proceedings.
21. Should CPI, or any successor, become unable to fulfill it's
obligations hereunder to
act as a channel &tributor to SEIDCON for the Products because
CPI has become
the subject of voluntary receivership, insolvency, bankruptcy,
moratorium or similar
proceedings, or involuntary proceedings of a similar nature
that are not discharged
within 30 days aft i er being instituted, then SEIDCON shall
have the right to purchase
said products directly from Wavetrend or through another
Wavetrend-authorized
channel distributor.
22. CPI may assign this Agreement to its 100% parent, Creative
Enterprises, Inc., a Delaware corporation, or the parent of
Creative Enterprises, Inc., Creative Enterprises
International, Inc., a Nevada corporation, without the prior
consent of SEIDCON.
23. The laws of the State of Delaware will govern this
Agreement.
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24. This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an ooriginal and all of
which, when taken together, will be deemed to constitute one
and the same instrument.
IN WITNESS WHEREOF,, the parties have duly executed this
Agreement as of the date first set forth above.
SYSTEMS ENGESMERING CREATIVE PARTNERS
& INTEGRATTON DEFENSE INTERNATIONAL LLC
CONTRACTORS, INC. ,
By Creative Enterprises, Inc., the sole
member of
Creative Partners International LLC
B y: f4 By
I/ -
Name: Xxxxxx Xxxxxx Name: X. X. Xxxxxx
Title: VP - Contracts Title PP-tFTtDEAJT
Address for notices: Address for notices:
2q00 -TOCOAJ!r6-Art-,WD
L ---1 -
SEIDCON, Inc. UE3TLetr-t- V(L(A6E-,
0000 X. Xx Xxxxxx Xxxx eA - q 1 "3 6 t
Attn: Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000.
Appendix A
Wavetrend Technologies (Ply) Ltd
Seklcon Price Ust - January 2002
L-TG1OOWevetrand Domino Tog $12.50 $19.00
L-TGIOD-MS Wavetrand Domino Tag with Motion Sensor$15.50 $25.00
L-TG501Wavetrand See" Card $12.50 $19.00
L-TG501-MS Wavelvend Secure Card vAth Motion SensorW.50$25.00
L-TG501-DT Wavetrend Secure Card with Dual Technologe$12.00 $19.00
L.TG50143T.MSWave"M Secure Cord with Dual Technology & Motion Sensor*
$16.00 $25.00
L-TGBOOWavetrand And Tog $22.00 $30.00
L-TGNO-MS Wwometrend And with Motion Sensor $26.00$36.00
L-TA1OOalp for L-TG501 $0.30 $0.45
L-TA2DODouble aided fbdng tape for L-TG501 (10 per peclo $6.00$9.95
L-TA300Arti-Tarnpar Kit for L-TG501 (10 pw pack)$9.45 $14.50
L-TA400Double aided Ung tape for L-TG1OO (10 per paclo $250$3.95
L-TA500And-Tamper Kit for L-TG100 (10pwpack) $6.00 $9.95
L-TABW Double aided Ung tape for L-TG8OO (10 per pack) $6.00$9.95
L-TA700And Tamper Kit for L-TG8W (10 per pack) $9.45 $14.50
L-RX100Wavetrend Reader -TTL (vvithout artanns)$110.00 $190.00
L-RX2W Wavetrand Reader - RS485 $140.00 $220.00
L-RX3W Wavetrand PC Access Control reader - (RS-232) $39.00$60.00
L4;tA1OO Wavetrend Reader Programming Wt for L-RXIOO (Cable & SW)
$50 NIA
L-ANIOOMulti-purpose Whip Antenna (167rrm) $6.00 $11.00
L-AN200Stub Antenna (50 Ohm) $6.00 $10.50
L-AN3DOWavelrend Patch Antenrm (400 x 400 mr" $100.00 $160.00
L-CB1OOWavetrend NsWm Interface Buffer$275.00 $390.00
L-PA100Wavetrend Interface Card (M I Xxxxxxx) $120.00 $148.50
L-PA200Wavetrend Interface Unit (TTL / RS485) (Xxxx) $85.00$119.95
L-PA300Wevetrend Interface Lk* (rTL / RS485) (MaGW4 $85.00$119.95
L-SY100Wavetrend PC Access Control System (PCAC)$50.00 $99.00
L-SMOO Wave" systern interface sollwareWA NIA
Not":
I Please quote the full product clode ruTber In orders and
technical Inquiries, i.e.
2 Prim exclude VAT and are vA*d to charge vvithout notice
3 Freight and shipping - Provideg by CPI
4 Distributor / VAR supplies PE71 for dual technology card at
own oosL
Load time required after reosipt of PIERT is 8 weeks
Avvendix B
WARRANW
WAVETREND TECHNOLOGIES ffM LTD warrants the following, from the
date of final acceptance of the product by the Customer, and for
the respective initial warranty periods indicated in a detailed
schedule of products annexed to the proposal.
that no failty material or workmanship was used in the product;
that the product complies with the proposal and order, that the
performance of the product complies with, the specification
contained in the proposal and order.
If the products or any part thereof is defective during the
warranty period, WAVETREND i :HNOLOGIES (PTY) LTD shall correct
the defect, by either replacing or repairing, at its election,
any defective component at its own cost within 30 (thirty) days
or any extended period as may be agreed to in writing by the
parties. Tbe warranty period on any product or part thereof
replaced during the warranty period shall be limited to the
un-Wu-ed portion of the initial warranty period.
NotvvithsWnding the provisions of the preceding clause, the
warranty of any component of the product which has been sourced
by WAVETRMM TECHNOLOGIES (PrM LTD from a third party shall be
subject to any limitations of warranty placed on that component
by the third party The Customa win not have any claim against
WAVETREND TECHNOLOGIES (PTY) LTD in respect of any defective
component supplied by such a third party but WAVETREND
TECHNOLOGIES (PTY) LTD shall be obliged to cede any rights it
has against such third party to the Customer.
This warranty extends only insofar as the product is used
reasonably and for the purpose for which it was sold and shall
be invalidated by any repairs effected by anyone other than
WAVETREND TECHNOLOGIES (FM LID, or its appointed agent
("unauthorised repairs") to the product.
352099v4
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