LICENSE AND DISTRIBUTION AGREEMENT
This agreement ("Agreement") is made between Authoriszor Inc a company
incorporated in Delaware, USA with IRS Employer ID No. 00-0000000 of Xxxxxxx
Xxxxx, Xxxxxxxx Xx, Xxxxxxxxx XX0 0XX (AUTHORISZOR") on the one hand and
Sandford Technology Limited (STL) a company incorporated in England and Wales
with company number 4397593 with registered office at Xxxxxxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxx XXX 0XX ("STL") on the other hand.
Whereas
A. AUTHORISZOR wishes STL to perform certain exclusive support services for
and/or on behalf of AUTHORISZOR and STL wishes to perform such work; and
B. AUTHORISZOR wishes to appoint STL as the primary distributor for certain
AUTHORISZOR products
C. AUTHORISZOR and STL wish to set out the terms and conditions under which
STL shall perform such services and undertake reseller responsibilities;
and
D. AUTHORISZOR may disclose certain proprietary and/or confidential
information to STL and AUTHORISZOR wishes to protect the confidential
nature of this information and also wishes to set forth the terms under
which ownership of any work done by STL shall be regulated,
Therefore, the parties hereto agree as follows:
1 DEFINITIONS
1.1 "Derivative Works" shall mean work on the Products, such as revision,
modification, translation, abridgment, condensation, expansion or any other
form in which such Products may be recast, transformed or adapted and
which, if prepared without AUTHORISZOR's authorization as owner of the
copyright and other Intellectual Property in the products, would constitute
an infringement. Derivative Works does not include any enabling
technologies, applications or agents developed by STL which may coexist,
interoperate or integrate with the Products. STL may create Derivative
Works as specified herein.
1.2 "End Users" shall mean a licensee of STL or AUTHORISZOR that uses the
Products for its own internal business needs and not for redistribution.
1.3 "Intellectual Property Rights" shall mean all present and future copyright,
design rights (whether registered or unregistered), database rights,
semi-conduct topographical rights, trademarks (whether registered or
unregistered), patents and all other intellectual property rights of a
similar nature and any confidential information and know how in the
Intellectual Property the Products and the Derivative Works.
1.4 "Object Code" shall mean AUTHORISZOR's computer programming code in
substantially binary form, and includes header files of the type necessary
for use or interoperation with other computer programs. It is directly
executable by a computer after processing or linking, but without
compilation or assembly.
1.5 "Products" shall mean the PositivelD products specified in Schedule A as
amended from time to time.
1.6 "Source Code" as used herein shall mean AUTHORISZOR program code in
human-readable form, including but not limited to, listings, flow charts,
logic diagrams, programming notes, notebooks, source code and any related
documentation furnished therewith
1.7 "Territory" shall mean Worldwide.
2 LICENSE GRANT
2.1 Subject to the terms and conditions set forth herein, AUTHORISZOR hereby
grants to STL a worldwide exclusive right to distribute, sell and otherwise
market the Products and to license or sub-license the Products on
AUTHORISZOR's behalf in Object Code format only. Such license shall include
the right of STL to sublicense the Object Code on AUTHORISZOR's behalf to
distributors, resellers, and other third
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parties to achieve the foregoing. In addition, STL may make Source Code
available to third parties under a suitable license and confidentiality
agreement in order to facilitate development of Derivative Works.
2.2 Subject to reasonable and good faith negotiations with STL on matters such
as the total number of resellers appropriate in the market, qualifications,
margins and territory, AUTHORISZOR has the option at any time after 1 July
2003 to require that STL appoints one or more non-exclusive distributors,
or resellers introduced by AUTHORISZOR to the benefit of both parties STL
agrees that such nonexclusive distributors or resellers shall be appointed
on comparable terms to STL's other comparable distributors, and resellers.
2.3 STL shall also work with AUTHORISZOR's existing reseller base to distribute
the Products. The parties shall co-operate in an endeavour to secure a
sub-contract arrangement or the signing of a new reseller agreement with
STL
2.4 AUTHORISZOR permits STL to distribute, sell and otherwise market the
Products to customers (including but not limited to End Users, distributors
and resellers) either under AUTHORISZOR's brand or under STL's brand. Where
STL adapts AUTHORISZOR documentation for distribution under STL's own brand
in accordance with this Section 2.3, AUTHORISZOR trademarks may be replaced
but all AUTHORISZOR copyright notices shall be retained in accordance with
Section 5 hereof. For the avoidance of doubt where STL distributes, sells
and otherwise markets under STL's brand it shall not be in breach of this
Agreement (in particular the provisions of Clause 3.3 (iii)).
2.5 AUTHORISZOR shall provide STL with two master copies of each Product in
Source and Object Code form in a format suitable for use reproduction and
modification.
2.6 AUTHORISZOR hereby grants to STL a worldwide, exclusive right and license
to use and modify the Source Code of the Products and prepare Derivative
Works of the Products. License fees will also be payable by STL each time
it distributes a Derivative Work of the Products. AUTHORISZOR shall retain
all right, title and interest (including ownership of copyright) in such
Derivative Works prepared by or on behalf of STL. STL will make copies of
any new Source Code for the Derivative Work available to AUTHORISZOR on
request and whenever any new versions of the Products are released.
2.7 In the event that certain End Users and Resellers are unable or unwilling
to novate agreements for the Products or AUTHORISZOR at its option chooses
to remain primarily liable to them, AUTHORISZOR shall sub-contract the
license fees and associated services revenue for the Products to STL at
full value and STL shall provide all services detailed in this agreement to
such End Users and Resellers. The provisions of Clause 7 and Schedule A
shall apply in respect of corresponding fees pavable to AUTHORISZOR by STL
in respect of such sub-contracted license fees and services. .
3 OBLIGATIONS OF STL AS DISTRIBUTOR
3.1 AUTHORISZOR hereby appoints STL as an Authoriszor Master Distributor, on an
exclusive basis, to distribute the Products.
3.2 During the term of this Agreement, STL is authorized to use the various
trademarks and trade names owned by AUTHORISZOR in connection with its
advertising, catalogs, exhibits, public relations materials and manuals
covering the Products. Specifically, STL may at its option either trade as
Authoriszor Technology or use the brand for promotional purposes.
3.3 STL will (i) actively devote all commercially reasonable efforts to the
promotion and distribution of the Products to End Users and other
customers, (ii) establish and maintain appropriate marketing and
distribution facilities and personnel within its organization to create and
meet the demand for Products among End Users in the Territory, (hi) promote
the goodwill, name and reputation of AUTHORISZOR and the Products, and (iv)
represent Products accurately and fairly, and at all times avoid misleading
or unethical business practices.
3.4 STL has represented to AUTHORISZOR that it possesses or will acquire the
necessary capital, experience, facilities and personnel to meet its
obligations hereunder. STL will employ its own resources in performing
marketing efforts involving the Products and has or will develop the
technical capability to be familiar with the Products, thereby requiring
only a reasonable amount of technical support from AUTHORISZOR.
3.5 STL will (i) announce to its base of current and prospective End User
customers in the Territory that the Products are or will be available for
distribution by STL , (ii) distribute marketing and technical brochures in
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electronic or hard copy form as appropriate which describe the functions,
features, and operation of the Products to all of STL 's locations within
the Territory, (iii) regularly advertise the Products in a manner and with
the same frequency as STL normally employs for other products offered by
the STL , and (iv) train an agreed upon number of its personnel in the
features and functions of the Products.
3.6 STL will provide professional services to end users and resellers of the
Products.
4 OBLIGATIONS OF AUTHORISZOR
4.1 AUTHORISZOR will provide to STL a complete list of AUTHORISZOR' s existing
customer base for the Products. The parties shall co-operate in a program
for the sub-contract of existing license, support and reseller agreements
for the Products to STL and the transfer of revenues and cash payments as
appropriate.
4.2 Where possible AUTHORISZOR will transfer the full remaining value of any
existing or new contracts for the Products and associated services to STL
and also transfer the full value of web-based sales or cash transactions
where applicable either now or in the future.
4.3 AUTHORISZOR will provide applicable sales lead information, obtained by
AUTHORISZOR through its sales and marketing efforts and other business
activity, including contacts at trade shows, advertising efforts and
partnering programs, to STL regarding potential sales prospects in the
Territory.
4.4 AUTHORISZOR staff shall not be deemed to be STL personnel or agents for any
purpose. AUTHORISZOR staff shall not be entitled to the benefits of any STL
employee benefit plans or policies. STL shall not be responsible for the
payment of any workers' compensation, disability benefits, unemployment
insurance or for withholding income taxes or social security payments for
AUTHORISZOR staff. AUTHORISZOR shall be solely responsible for, and shall
duly perform, all such payment and withholding obligations.
Where requested (e.g. a large deal) and by reasonable negotiation,
AUTHORISZOR will act as prime contractor for a STL customer who is
purchasing the Products or associated services or where other services may
be delivered by AUTHORISZOR. AUTHORISZOR will also maintain the existing
agreement with ComponentSource (at no cost to AUTHORISZOR) for the benefit
of STL and immediately transfer revenues and payments at full value.
4.5 AUTHORISZOR will pay one-off fees on behalf of STL up to(pound)2,500 in
respect of legal advice on this and other agreements.
4.6 In consideration of the performance by STL of its obligations under this
Agreement and the payment by STL of (pound)1 (receipt of which is
acknowledged by AUTHORISZER), AUTHORISZER grants to STL the exclusive
option to purchase the Intellectual Property in and any right, title and
interest in and to the Products and the Derivative Works (the Option).
4.7 The Option may be exercised by STL:
4.7.1 at any time after 5.00 p.m. on 1 July 2004 and before the expiry or
termination of this Agreement; or,
4.7.2 within 60 days of the receipt by AUTHORISZER of a bona fide offer by
a third party for the Intellectual Property in and/or any right,
title and interest in the Products and the Derivative Works.
4.8 STL may exercise the Option by sending a notice in writing to AUTHORISZER
pursuant to Clause 15 of this Agreement. On the exercise of the Option,
AUTHORISZER shall become bound to sell and STL shall become bound to
complete the purchase of the Intellectual Property in and any right, title
and interest in the Products and the Derivative Works.
4.9 The price payable for the Intellectual Property in and any right, title and
interest in and to the Products and the Derivative Works following the
exercise of the Option shall be five times the licence fees (as set out in
Schedule A) paid to AUTHORISZOR during the 12 months prior to the exercise
of the option.
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4.10 AUTHORISZOR agrees and undertakes to STL that it will not during the
continuation in force of this Agreement:
4.10.1 sell or offer for sale or agree (conditionally or unconditionally)
to sell or offer for sale to any third party; or,
4.10.2 directly or indirectly solicit, initiate or respond to any approach
made with a view to selling to any third party; the Intellectual
Property in and any right, title and interest in and to the Products
and the Derivative Works without first offering the Intellectual
Property in and any right, title and interest in and to the Products
and the Derivative Works to STL and offer to STL a period of 60 days
as set out in Clause 4.7.2 to match the third party offer.
4.11 Following the exercise of the Option, AUTHORISZOR shall within 60 days (or
such other period as the parties may agree) execute such assignments and
other documents and carry out such further acts and perform such further
assurances as STL may reasonably require, to perfect the title of STL to
the Intellectual Property in and any right, title and interest in and to
the Products and the Derivative Works.
4.12 STL hereby grants AUTHORISZOR an option to purchase the whole of the share
capital of STL at any time after 3 years from the date of commencement of
the term of this agreement for the remaining term of this agreement for a
consideration calculated at three times the revenue of STL over the
immediately preceding 12 month period.
4.13 AUTHORISZOR will provide the following facilities for the use of STL in
line with Authoriszor Technology's needs when it was part of the group:
o Suitable office space and facilities free of charge for 1-2 persons
for a period of one month and thereafter at an agreed monthly rate
o Hardware, software and equipment free of charge for a period of 3
months at the end of which the hardware and software will be returned
to AUTHORISZOR, rented at an agreed monthly rate or purchased by STL
at an agreed price
o Marketing materials relevant to the Products free of charge, including
unused stock of datasheets, exhibition panels and text created and
used in promotional campaigns
o Licensing and other agreements for software, maintenance and
consultancy services; free of charge
o Use of the xxxxxxxxxxx.xxx domain and website free of charge for
promotional purposes, product download and web-purchases. AUTHORISZOR
will also use best efforts to procure for STL the option to use the
domain exclusively or acquire it free of charge should AUTHORISZOR no
longer require it.
5 General Restrictions
5.1 The Products and all associated intellectual property rights are the
property of AUTHORISZOR STL acquires no title, right or interest in the
Products or Derivative Works other than the license granted herein and the
title to the magnetic media upon which the master copy of the Products are
delivered. STL shall, at any time, and from time to time hereafter at the
request and expense of AUTHORISZOR execute all such documents and do all
such further acts as AUTHORISZOR may require in order to vest the
Intellectual Property Rights in AUTHORISZOR.
5.2 STL will not remove any trademark, logo, copyright notice or other
proprietary notice from the Products and shall be responsible for their
conservation on all copies of the Products. STL shall also accurately
reproduce, and require any third party that uses the Product to reproduce,
all proprietary notices of AUTHORISZOR on any Derivative Works.
5.3 For the purposes of dealing with the U.S. Government, the Products are
"commercial computer software" or "commercial computer software
documentation" and, absent a written agreement to the contrary, the
Government's rights with respect to such Products are limited by the terms
of this Agreement, pursuant to FAR 12.212(a) and/or DFARS 227.7202-l(a) and
successor regulations, as applicable. STL agrees, where applicable, to
ensure that notice of this classification will be included in any of STL's
dealings with the U.S. Government.
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5.4 As a condition of the licenses granted hereunder, for the duration of this
Agreement, STL hereby agrees that where AUTHORISZOR introduces STL to an
existing or potential customer, STL shall not undermine the current or
future business of AUTHORISZOR at existing and potential custom locations
by offering competing products or services.
6 SUPPORT SERVICES
6.1 As a condition of the licenses granted hereunder, STL shall provide support
to existing AUTHORISZOR customers and End Users for the Products although
AUTHORISZOR at STL's request will provide 1st and/or 2nd line support for
the Products at the fee set out in Schedule A . STL may terminate the
support of the Products no sooner than four (4) years after die Effective
Date of this Agreement. STL must give at least one years notice of
termination of support to AUTHORISZOR customers.
6.2 Subject to the provision of 1st and/or 2nd line support by AUTHORISZOR and
its responsibilities for an agreed level of service, STL shall be solely
responsible for the support and maintenance of the Products whether
licensed or sublicensed to End Users in the Territory.
7 LICENSE FEE
7.1 STL agrees to pay the license fees set forth in Schedule A. STL shall pay
AUTHORISZOR all licence fees as specified in Schedule A except for
nominated accounts for which both parties have mutually agreed in writing
that different payment terms shall apply.
7.2 STL must have an industry standard and commercially reasonable process in
place to ensure that the appropriate support and license fees have been
tracked and paid. STL will, upon the request of AUTHORISZOR, certify in
writing to AUTHORISZOR the number of enabled or registered users in use.
AUTHORISZOR will have the right, with reasonable notice, during normal
business hours, at AUTHORISZOR's sole expense, and in as non-disrupting a
manner as possible, to audit STL 's compliance with this Section. If
AUTHORISZOR reasonably believes STL has paid or may have paid insufficient
license fees, AUTHORISZOR may appoint a mutually acceptable independent
auditor to conduct an audit; if the amount of license fees due AUTHORISZOR
as determined by the independent audit is greater than five percent (5%)
more than represented by STL, STL will remit the license fees determined to
be due by the auditor and reimburse AUTHORISZOR the costs incurred for that
audit. Any amounts shown to be due to AUTHORISZOR following any audit
conducted by AUTHORISZOR shall be paid not later than fifteen (15) days
following the date the auditors' report is made available to STL and shall
include interest payments accrued at 2% above base rate during the
applicable period covered by the audit. Any and all information obtained in
the course of such audit shall be treated as Confidential Information (as
defined below) by AUTHORISZOR and the auditor. Deliberately executing, or
permitting the execution of the Products for which the appropriate license
fees have not been paid within the agreed payment terms may constitute a
violation of this Agreement. If verified by an independent auditor as
described above and if not corrected within a period of 3 months following
notification of such violation, the violation may lead to termination of
this agreement.
7.3 On request STL will provide to AUTHORISZOR quarterly reports of actual
sales and forecasts of estimated sales of the Products under this Agreement
for each quarter covered hereby. The forecasts of estimated sales will be
prepared in good faith, reasonably accurate and detailed based on die best
information, and will be transmitted by means of a mutually agreeable
method and format. Such forecasts shall serve informational purposes only
and shall not be binding on STL. Each quarterly report/forecast will be
delivered not later than the last business day of the first month of each
quarter; the report shall cover the quarter just closed and the forecast
shall cover the quarter just underway.
8 Non-Disclosure
8.1 "Confidential Information" shall mean: (i) the Source Code of the Products;
(ii) any materials or information marked as confidential (or described as
confidential at the time of oral disclosure and summarized in writing and
sent to the receiving party within thirty (30) days of disclosure, with the
appropriate markings) at the time of disclosure; and (iii) the terms of
this Agreement. "Confidential
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Information" shall not include information that: (a) is or becomes
generally known or available by publication, commercial use or otherwise
through no fault of the receiving party; (b) is demonstrably known by the
receiving party at the time of disclosure and is not subject to
restriction; (c) is independently developed or learned by the receiving
party; (d) is lawfully obtained from a third party that has the right to
make such disclosure; or (e) the disclosing party is obliged to disclose
under any court order or as may be necessary to further a cause of action
or defense, provided reasonable notice is given to the disclosing party.
8.2 Each party shall protect the other's Confidential Information from
unauthorized dissemination and use a similar degree of care that such party
uses to protect its own like information, but no lesser degree of care than
is industry standard. Neither party will use the other's Confidential
Information other than as necessary to further the purposes of this
Agreement. Neither party will disclose to third parties the other's
Confidential Information without the prior written consent of the other
party. Except as expressly provided in this Agreement, no ownership or
license rights is granted in any Confidential Information. The parties'
obligations of confidentiality under this Agreement shall not be construed
to limit either party's right to independently develop or acquire products
without use of the other party's Confidential Information. STL shall not
make or use more copies of any Confidential Information than it shall
reasonably deem necessary in connection with its permitted use thereof.
8.3 Upon expiration or termination of this Agreement, or at the earlier request
of AUTHORISZOR and/or STL , as applicable, STL shall return to AUTHORISZOR
and/or STL , and make no further use thereof, all Confidential Information
under its possession or control.
9 Term and Termination
This Agreement shall commence on 25 March 2002 and continue for an initial
period of five years unless earlier terminated as provided for herein.
After the initial period this agreement shall be automatically renewed
annually unless terminated earlier by mutual consent.
9.1 This Agreement and any license granted hereunder may be terminated by
either party (i) if either party becomes bankrupt or enters administration,
(ii)for material breach by the other party of any of the provisions of this
Agreement and such breach has not been cured within 30 days of written
notice thereof, or (iii) upon failure by the other party to pay any and all
amounts promptly when due, providing that the other party has provided
notice of such failure, has notified the other party of the consequences of
failure to pay and gives the other party not less than 3 months to remedy
the failure and that at the end of the 3 month period the overdue amounts
have not been paid.
9.2 The provisions of this Agreement which by their nature should survive,
shall survive the termination of this Agreement.
10 STL Limited Warranty
10.1 STL hereby represents and warrants that:
(a) it is fully qualified to perform the work under this Agreement;
(b) it shall perform its obligations under this Agreement in a
professional and diligent manner;
(c) any and all software and/or documentation developed by STL hereunder
shall not subject AUTHORISZOR to any third party claim of intellectual
property right infringement;
(d) that as at the date of this Agreement none of the provisions of this
Agreement or STL 's obligation to perform the obligations under this
Agreement contravenes or is in conflict with any agreements of STL
with, or obligation to, any other person, firm, corporation or
government, including, without limitation, employment agreements,
disclosure agreements or agreement for assignment of inventions.
10.2 Subject to the limitation of liability contained in Section 12 hereof, STL
agrees to indemnify AUTHORISZOR against all costs, proceedings, claims,
demands and expenses which may be incurred by AUTHORISZOR directly as a
result of any proven breach or proven negligence on the part of STL in the
performance of any of its obligations hereunder.
11 AUTHORISZOR LIMITED WARRANTY
11.1 UNLESS SPECIFIED HEREIN, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS
AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
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FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. AUTHORISZOR SPECIFICALLY
DISCLAIMS ANY WARRANTY THAT THE FUNCTIONS CONTAINED IN THE AUTHORISZOR
PRODUCTS OR THE RESULTS OF USE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT
THE OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. BECAUSE SOME
JURISDICTIONS MAY NOT ALLOW CERTAIN OF THE ABOVE EXCLUSIONS, SOME OF THE
DISCLAIMERS MAY NOT APPLY.
12 Limited Liability
12.1 EXCEPT FOR THE INTELLECTUAL PROPERTY INDEMNIFICATION SET OUT IN CLAUSE 13.1
AND INFRINGEMENTS OF AUTHORISZOR'S INTELLECTUAL PROPERTY RIGHTS, NEITHER
PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL
OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR BUSINESS
INTERRUPTION OR LOSS OF DATA) ARISING OUT OF THE USE OR INABILITY TO USE
THE AUTHORISZOR PRODUCTS OR PROJECT MATERIALS, EVEN IF FORESEEABLE OR IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY WILL BE LIABLE
FOR ANY DAMAGES RESULTING FROM PHYSICAL DAMAGE TO PROPERTY OR DEATH OR
INJURY OF ANY PERSON EXCEPT WHERE ARISING FROM THE OTHER PARTY'S NEGLIGENCE
OR WILLFUL MISCONDUCT. EXCEPT FOR LIABILITY UNDER THE INTELLECTUAL PROPERTY
INDEMNIFICATION OR INFRINGEMENT OF AUTHORISZOR'S INTELLECTUAL PROPERTY
RIGHTS, NEITHER PARTY'S LIABILITY SHALL EXCEED AN AMOUNT EQUAL TO FEES PAID
BY STL FOR THE RELEVANT PRODUCT. BECAUSE SOME JURISDICTIONS MAY NOT ALLOW
CERTAIN OF THE ABOVE EXCLUSIONS OR LIMITATIONS OF LIABILITY, SUCH
LIMITATIONS MAY NOT APPLY.
13 Intellectual Property Infringement Indemnity
13.1 Any cause of action against STL claiming that the Products infringe any
patent, copyright, trade secret, or other intellectual property rights of a
third party will be defended by AUTHORISZOR at its expense. AUTHORISZOR
will indemnify and keep STL indemnified against any costs, damages and
settlements finally awarded against or expenses reasonably incurred by STL
in such action; provided always that STL notifies AUTHORISZOR promptly in
writing of each claim and permits AUTHORISZOR to control fully the defense
and/or the settlement of such claim. STL may participate in the proceeding
at its own expense.
13.2 Without prejudice to the foregoing, should the Products become, or in
AUTHORISZOR'S reasonable opinion are likely to become, the subject of a
claim as aforesaid then AUTHORISZOR may at AUTHORISZOR'S expense either:
(i) procure for STL the right to continue using the Products; (ii) modify
the Products to be non-infringing and substantially equivalent in
functionality; or (iii) replace the Products with substantially equivalent
non-infringing material
13.3 AUTHORISZOR shall have no liability for any claim that AUTHORISZOR lacks
right, title and interest to the Products any claim of copyright or patent
infringement, based on STL's modification or combination of the Products
with non-AUTHORISZOR hardware or software, to the extent only that such
claim would have been avoided had the Products not been modified, combined
or integrated with non-AUTHORISZOR software programs.
14 Force Majeure
14.1 Neither party shall be liable for any delay in meeting or for failure to
meet any of its obligation under this Agreement due to any cause outside
its reasonable control, including, without limitation, strikes, lock-outs,
Acts of God, war, riot, malicious acts of damage, fire, acts of any
government authority, failure of the public electricity supply, failure or
delay on the part of any subcontractor beyond the subcontractor's
reasonable control.
14.2 The party wishing to claim relief by reason of any such circumstance shall
notify the other party in writing without delay on the intervention and on
the cessation thereof.
14.3 Both parties shall use all commercially reasonable endeavours to avoid the
circumstances of Force Majeure as describe in Section 14.1.
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15 Notices and Other Communications
15.1 Any notice, which expression includes any other communication whatsoever
which is made in accordance with this Agreement, shall, without prejudice
to any other method of giving it, be sufficiently given if it is sent by
fax, registered or recorded delivery first class post or by overnight
courier to the other party to the address stated at the beginning of this
Agreement or to such other address as the respective party may advise by
notice in writing from time to time. Notices shall be deemed to have been
properly given after four (4) working days of posting.
16 General
16.1 Assignment
Neither party may not assign or otherwise dispose of any rights or delegate
any obligations under this Agreement without the prior written consent of
the other party but this consent will not be unreasonably withheld.
16.2 Waiver
No delay or failure of either part}' in enforcing against the other party
any term or condition of this Agreement, and no partial exercise by either
party of any right hereunder, shall be deemed to be a waiver of any right
of that party under this Agreement.
16.3 Change Control
Following agreement of the time-table for completion of the transfer, any
changes to the time-table will be covered by Change Control. Under Change
Control, changes may be raised by either AUTHORISZOR or STL and the parties
will assess the financial implications and the effect on time-scales of the
proposed changes. Changes will only be incorporated after agreement in
writing by the authorised signatories of both parties.
16.4 Entire Agreement
The parties have read and understand this Agreement and agree that it
constitutes the complete and exclusive statement of the agreement between
each other with respect to the subject matter hereof which supersedes all
proposals, representations, understandings and prior agreements, whether
oral or written, and all other communications between them relating
thereto.
16.5 Equitable Relief
If AUTHORISZOR institutes an action or proceeding to enforce the provisions
of this Agreement, it shall be entitled, without the posting of any bond or
security, to apply for injunctive or other equitable relief from a court of
competent jurisdiction as may be necessary or appropriate to enjoin,
prevent or curtail any breach, threatened or actual, of this Agreement. The
foregoing shall be in addition to and without prejudice to such other
rights as AUTHORISZOR may have, subject to the express provisions of this
Agreement, at law or in equity.
16.6 Binding Effect
This Agreement shall inure to the benefit of and be binding upon STL and
AUTHORISZOR and their respective successors and permitted assigns and the
parties hereto do covenant and agree that they and their successors and
permitted assigns shall execute any and all instruments, releases,
assignments and consents which may reasonably be required of them by this
Agreement.
16.7 Headings
Section headings are inserted for convenience of reference only and shall
not affect the interpretation of this Agreement.
16.8 Relationship of Parties
Nothing herein shall be deemed to constitute a partnership or a joint
venture between the parties hereto, nor shall anything herein be deemed to
establish a relation of master or of agent and principal as between the
parties. STL is acting in the capacity of an independent company in
connection with this Agreement and the services to be performed hereunder.
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16.9 Validity
If any Section, part, term or provision of this Agreement, not being of a
fundamental nature be held illegal or unenforceable, the validity or
enforceability of the remainder of this Agreement shall not be affected. If
the scope of any of the provisions of the Agreement is too broad in any
respect to permit enforcement to its full extent, then the parties agree
that such provision shall be enforced to the maximum extent permitted by
law and that such provision shall be deemed to be varied accordingly.
16.10 Variation
No purported variation of this Agreement shall take effect unless made in
writing and signed by an authorised representative of each party.
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16.11 Law
This Agreement shall be governed by the laws of England and Wales and the
parties hereby submit to the jurisdiction of the English Courts.
Signed __________________________ Signed_________________________
Name __________________________ Name___________________________
Title __________________________ Title__________________________
Date __________________________ Date___________________________
For and on behalf of AUTHORISZOR For and on behalf of STL
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Schedule A
The following Products are licensed hereunder:
PositivelD and any Derivative Works
STL shall pay the following fees to AUTHORISZOR:
1. A Royalty of 25% of license revenues for the Products, reducing to 5%
after 5 years. No payments are due until any prepayment which may be
agreed is reduced to zero. Thereafter, fees are payable quarterly in
arrears at the end of the month following the quarter-end, subject to
point (2) below. Where AUTHORISZOR or any group company in its
capacity as a reseller of STL makes sales of the Products, no fees are
payable in respect of such license revenues.
2. During the initial term (5 years) of this agreement, 60% of the fees
payable to AUTHORISZOR in respect of license royalties shall be
accrued but not paid by STL. In the event that AUTHORISZOR exercises
its option to purchase STL as set out in clause 4.6 then any license
fees accrued but not paid shall be used in part satisfaction of the
consideration.
In the event that STL exercises its right to purchase the IPR of the
Products from AUTHORISZOR as set out in clause 4.6 then any license
fees accrued but not paid shall be payable at that time in addition to
the calculated purchase price.
In the event that the initial term (5 years) of this agreement expires
with neither party exercising its rights as set out in clause 4.6 then
the accrued fees due to AUTHORISZOR by STL (if any) shall be forfeit,
3. 40% of support revenues for which AUTHORISZOR is requested to and
agrees to provide 1st Line support*.
4. 70% of support revenues for which AUTHORISZOR is requested to and
agrees to provide both 1st and 2nd line support*.
5. Prepayment agreed is(pound)16k.
* to be defined separately through a service level agreement.
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12 NOTICES
12.1 Any notice required or authorised to be given under this Agreement may be
served by personal delivery or by pre-paid registered or recorded delivery
letter or by cable or telex addressed to the party in question at the
address of such party given in this Agreement or to such other addresses as
may be notified in writing for the purposes of this Agreement. Any notice
so given by personal delivery shall be deemed to have been served 48 hours
after each had been posted and any notice so given by cable or telex shall
be deemed to have been served 24 hours after it shall have been despatched.
13 PROPER LAW
This Agreement shall be governed by construed and take effect in all
respects in accordance with English law and the parties hereto hereby
submit to the exclusive jurisdiction of the High Court of Justice in
England.
14 SUPERCESSION
This Agreement shall supersede all previous Agreements whether written or
not heretobefore subsisting between the Company and the Consultant.
15 SEVERABILITY
If any part or term or provision of this Agreement not being of a
fundamental nature is held to be illegal or unenforceable the validity or
enforceability of the remainder of this Agreement shall not be affected.
IN WITNESS WHEREOF the parties hereto have entered into this Agreement the day
and year first before written.
SIGNED by )
for and on behalf of AUTHORISZOR LIMITED )
in the presence of:- )
SIGNED by )
for and on behalf of
Cat & Mouse Limited)
in the presence of: )
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Mr Xxxxxxx Xxxxxxxx
Managing Director
Sandford Technology Limited
Xxxxxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxx
XX0 0XX
9th May 2002
Dear Xxxxxxx,
re: Distribution agreement with Sandford Technology Limited
In order to clarify the operation and intent of the License and Distribution
agreement signed on 24th March 2002 between Authoriszor Ltd and your company,
the following shall apply:-
1. In the event that Authoriszor receives an offer for the IPR of the
product, Sandford will have the right to exercise its option to
purchase prior to any such offer being accepted. Authoriszor is not
obliged to accept any offer which is less than that set out in clause
4.9.2 of the agreement but will consider any such offer.
2. The definition of an insolvency event was deleted from the agreement,
although we accept that the definition now included as a hand-written
amendment in clause 9.1 does not accurately define the circumstances
in which early termination could be enforced. Our interpretation of an
event that would lead to early termination by either party is that
which was originally set out in the definitions clause 1.3.
3. The agreement provides for both parties to have certain option rights
- Authoriszor is able to purchase the share capital of Sandford, and
Sandford may purchase the IPR of the products - under certain
circumstances. It is conceivable that if Sandford did not exercise its
option in the period 1st July 2004 to 24th March 2005, but wished to
do so after 24th March 2005, a conflict could arise if Authoriszor
simultaneously wished to exercise its option. We would suggest that if
Authoriszor issued a notice to exercise its option to purchase after
24th March 2005 (3 years from the date of the agreement), then
Sandford be given 7 days to exercise its option should it so desire
before such option notice became effective.
4. We understand the importance of patent protection on the PositiveID
products, and we will continue with the patent application process for
as long as we own the IPR. In the event that we decide we can no
longer continue with the process then I suggest that we allow Sandford
to exercise its option, early if necessary, so that you are able to
take over the process and associated costs should you so desire.
I believe that the above deals with the outstanding issues.
Yours Sincerely
Xxxxxx Xxxxxx
CEO, Authoriszor Inc.
