EXHIBIT 10.1
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Sales Agreement
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Introduction and Document Scope
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This Agreement establishes the terms and conditions of a sales
agreement for the software called NoMatterWare.
Under the existing agreement, dated May 14, 1999, all NoMatterWare
software is owned by Xxxxxxxxx Consulting Services Inc.. However, under
the agreement, the company NoMatterWare Inc. has been given exclusive
marketing rights to both the ResumesOnLine service, AND the
NoMatterWare software and service.
This agreement replaces the license agreement between Xxxxxxxxx
Consulting Services Inc. and NoMatterVVare Inc. signed and dated May
14,1999.
Sales Agreement
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This Agreement dated September 01, 1999 but effective as of May 14 1999
between:
Xxxxxxxxx Consulting Services Inc.
Xxxxx 0000 000 0xx Xxxxxx XX
Xxxxxxx Xxxxxxx
X0X 0X0
("Company")
AND
NoMatterWare Inc.
Xxxxx 000 000 0xx Xxxxxx XX
Xxxxxxx Xxxxxxx,
X0X 0X0
("Purchaser")
In consideration of the mutual promises and covenants set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1) Grant of Rights. Company hereby grants to Purchaser all rights of
ownership any and all of the Products and Services (as hereinafter
defined). In return, Purchaser relinquishes all rights to the product and
service known as ResumesOnLine.
Maintenance Defined: Maintenance is defined as any customization of the
Products sold by Company to Purchaser to accommodate the Purchaser's
business requirements.
2) Products and Services. This Agreement applies to the following products
and services (the "Products"): (a) NoMatterWare Software
For greater certainty, "NoMatterWare Software" includes all source code,
html, database structures, database content, and diagrams, that make up
the body of the product, but does not include the hardware on which the
software runs, the operating systems installed on the servers, the Cold
Fusion Engine, or the SQL Server license required to operate the database.
XXXX (Note: Paragraphs 3 and 4 are crossed out and initialed "BC" and "KT") XXXX
X X
X 3) Maintenance Fees. X
X X
X Under the terms of this agreement Purchaser agrees to contract all X
X hosting, software maintenance, programming, bug fixes, graphic artwork X
X enhancements, and component additions to Company based on the fee X
X structure laid out below: X
X X
X * A flat $15,000 per month fee based on the immediate and X
X sustained need for a minimum of 3 programming staff needed X
X to continue with the research and development of the X
X software to stay current in the industry. In the event that X
X more or less staff are required, this fee will be X
X re-negotiated. X
X X
X * A monthly software license fee of $10,000 to cover such X
X things as Server licenses, database licenses, secure X
X transaction licenses, operating system licenses, etc. X
X X
X * A monthly equipment usage fee of $10,000. In the event that X
X more equipment is required than the fee will adequately X
X cover, then a new usage fee will be agreed upon based on the X
X needs of the products and/or services and a 15% markup added X
X to the cost. X
X X
X * A $10 per month fee for each NoMatterWare customer hosted on X
X Company's Server. This fee applies only if the customer's X
X domain name is directed to Company's Server, and Company is X
X required to provide the customer with one active email X
X address. X
X X
X 4) Services Provided By Company. X
X X
X In exchange for the maintenance fees laid out in section 3, Company X
X will be retained as the exclusive Research and Development partner X
X for the NoMatterWare System. X
X Company will provide the following services: X
X X
X * Web Site hosting for the NoMatterWare Web Site, as well as the X
X web sites of any customers of NoMatterWare, at the request of X
X X
X * Database hosting for the NoMatterWare Web Site. X
X X
X * Adequate on and off site backups the NoMatterWare Web Site. X
X X
X * Adequate Internet bandwidth to handle the trafffic generated by X
X the NoMatterWare Web Site. X
X X
X * Necessary software development staff for product/service X
X enhancements, and bug fixes for the NoMatterWare software. X
X X
X * Necessary Internet Graphic Arts staff for such things as Web site X
X enhancements, template construction, and any other work on X
X NoMatterWare as required. X
X X
X * Intuitive internet-based help documentation for both X
X ResumesOnLine and NoMatterWare web sites and services. X
X X
X * Full email and network support for the company NoMatterWare Inc. X
X X
X * Complimentary hosting of up to 50 promotional web sites X
X to be allocated at NoMatterWare's discretion. X
X X
XXXX (Note: Paragraphs 3 and 4 are crossed out and initialed "BC" and "KT") XXXX
5) Sale Price.
The price of the sale is Five Hundred Thousand Dollars ($500,000)
Canadian, payable as follows:
a. $250,000.00 (Two Hundred And Fifty Thousand Dollars Canadian)
by way of promissory note due May 14, 2001 and;
b. Two Hundred And Fifty Thousand Dollars Canadian payable by
issuance of 167,500 Class 'A' shares of the purchaser
($1.OOUS/share)
6) Payment Terms.
In the case of (a), issuance of a share certificate in the name of
Xxxxxxxxx Consulting Services Inc. immediately at the time of the sale,
accompanied by a promissory note for $250,000 due on May 14, 2001.
7) Warranty On Products. Company warrants that the Products will operate
substantially in accordance with Company's documentation. Purchaser
must make any claim by Purchaser that a Product is defective within the
Inspection Period as hereinbefore provided. Company's sole obligation
in this regard will be to use reasonable efforts to, at its option and
at its own expense, correct or replace any error which Company can
recreate which significantly affects performance in accordance with the
documentation, provided the error is not caused in whole or in part by
(i) any defect in or failure to function in accordance with applicable
manufacturer's specifications of any or any portion of Purchaser's or
any person's hardware, firmware, peripheral equipment, communication
device, application, program or other software or equipment used in
connection with the Products, (ii) any modification made to the
Products by anyone other than Company, (iii) the failure of Purchaser
or any person to follow the most current instructions promulgated by
Company, from time to time, with respect to the proper use of the
Products, (iv) the negligence of Purchaser or any person, or (v) any
cause within the control of Purchaser or Purchaser's Customer.
Purchaser will provide and will ensure that Purchaser's Customer
provides Company with its full cooperation in a timely manner to allow
Company to fulfill its obligations under this section. THE FOREGOING
WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS AND
CONDITIONS, WRITTEN, ORAL, EXPRESS OR IMPLIED, IN FACT OR IN LAW
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, REPRESENTATIONS
OR CONDITIONS CONCERNING DESIGN, QUALITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR OR A GENERAL PURPOSE ALL OF WHICH ARE, TO THE EXTENT
PERMISSIBLE BY LAW, HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. COMPANY
SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR
CONSEQUENTIAL LOSSES, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH
LOSSES.
8) Additional Covenants.
(a) All end user support of NoMatterWare's customers will be
conducted by Purchaser or an agent dully assigned by Purchaser.
Company is under no obligation to provide end user support,
unless a separate agreement is reached which indicates such.
9) Software Customization. Under the terms of the support agreement,
Purchaser may require one or more modifications to NoMatterWare as
requested by NoMatterWare customers.
Such modifications can be divided into two categories:
(a) Graphic Artwork and Cosmetic Modifications - alterations to the
Products that do not require changes to the underlying source
code or business logic
Purchaser may perform any and all graphic and cosmetic modifications or
assign the performance of the modifications to a third party without
the consent of Company. The Purchaser's Customer will pay Purchaser One
Hundred Percent (100%) of any and all fees charged to the Purchaser's
Customer by Purchaser for Graphic Artwork and Cosmetic Modifications
and Company lays no claim to such fees unless Company conducts the
work, in which case such fees will be paid by Purchaser to Customer
without set off or deduction.
(b) Source Code Modifications - modifications to the programming logic
embedded in the Products. These modifications are not related to bugs,
flaws, or defects in the products in any manner.
Company will make reasonable efforts to provide the capability to
modify the Products as requested. Company will determine the estimated
cost of the proposed modifications and will provide Purchaser with a
written price estimate for the requested modifications, as well as for
any manuals and related documentation which require modification.
Company will commence work only upon receiving signed approval by
Purchaser to make the modifications.
1O) Termination of Sales Agreement. If the Purchaser, for whatever reason
fails to pay for NoMatterWare as outlined in section 5 of this
agreement, the company may terminate the sales component of the
agreement on 30 days written notice to the purchaser.
Upon termination or expiration of this agreement all rights granted
hereunder to Purchaser will forthwith revert to Company and Purchaser
shall have no further rights hereunder.
11) Termination of Support Agreement.
The occurrence of any of the following shall allow Company to terminate
the sales component of this Agreement on 30 days notice without further
obligation to Purchaser
(a) Purchaser or Company fails to perform or observe any material term,
covenant or agreement contained in this Agreement or any other
agreement it now has or hereafter enters into with Company;
(b) Purchaser or Company is reorganized as a result of financial
difficulties suffered by it;
(c) Any representation or warranty made by Purchaser or Company in
this Agreement or in any certificate, agreement, instrument or
statement contemplated hereby or made or delivered pursuant hereto
or in connection herewith proves to have been incorrect in any
material respect when made;
(d) Purchaser or Company is adjudicated a bankrupt or insolvent, or
admits in writing its inability to pay its debts as they mature, or
makes an assignment for the benefit of its creditors, or applies
for or consents to the appointment of any receiver, trustee or
similar officer for it or any substantial part of its property, or
such receiver, trustee or similar officer is appointed without the
consent of Purchaser and such appointment continues undischarged
for a period of ninety (90) days, or any judgment, writ, warrant of
attachment or execution or similar process is issued or levied
against a substantial part of the property of Purchaser and such is
not released, vacated or fully bonded within ninety (90) days after
its issue or levy;
12) Entire Agreement. The parties hereto confirm and agree that this
Agreement (including the premises and any and all Schedules hereto)
constitutes the entire and complete Agreement between them and that
this Agreement supersedes any previous oral or written communications,
negotiations, representations, understandings or agreements between the
parties with respect to the subject matter hereof. There will be no
waiver or modification of any of the terms of this Agreement unless
such waiver or modification is made in writing and signed by each of
the parties hereto.
13) Severability. Should any provision of this Agreement be illegal, void
or otherwise unenforceable such provision will be severed from the rest
of this Agreement and the rest of this Agreement will remain in full
force and effect, and be binding on the parties as though the said
provision had never been included.
14) Currency. All currency values expressed in this Agreement represent
Canadian Dollars.
15) Governing Law. This Agreement and all amendments, modification,
alterations or supplements thereto will, in all respects, be subject to
and interpreted, construed and enforced in accordance with the laws of
the Province of Alberta. Each party hereby attorns to and accepts the
exclusive jurisdiction of the courts of the Province of Alberta for all
purposes hereof.
16) Headings. Headings of the articles or sections hereof are inserted for
convenience of reference only and will not affect the construction or
interpretation of this Agreement.
17) Number and Gender. In this Agreement, words importing the singular
number only will include the plural and vice versa, and words importing
the masculine gender will include the feminine and neuter genders, and
words importing persons will include provincial or federal companies,
corporations, partnerships, syndicates, trusts and any number or
aggregate of persons, all as the context may require.
18) Neutral Interpretation. This Agreement will be interpreted neutrally
and without regard to which party drafted it and, in particular, no
rule of construction will be applied that would result in the
resolution of an ambiguity on the basis of which party drafted this
agreement.
19) Time. Time will be of the essence in this Agreement.
20) Assignment. This Agreement is not assignable by Company or Purchaser.
21) Further Assurances. Each party will at any time and from time to time
hereafter take any and all steps and execute, acknowledge and deliver
to the other party, any and all further instruments and assurances that
the other party may reasonably require for the purpose of giving full
force and effect to the provisions of this Agreement.
22) Survival. Any term, condition or provision hereof applicable after the
termination or expiry of this Agreement and the Purchasership
relationship created hereby will survive such termination or expiry and
remain in full force and effect.
23) Enurement. This Agreement will ensure to the benefit of and be binding
upon the parties hereto and their respective successors, licensees and
permitted assigns.
24) Independent Legal Advice. The parties hereby acknowledge and confirm
that each was advised by the other to obtain independent legal or other
professional advice and that by executing this Agreement each hereby
confirms that it has had the opportunity to seek independent legal or
other professional advice prior to executing this Agreement and has
either (i) obtained such legal or other professional advice, or (ii)
waived the right to obtain such independent legal or other professional
advice.
25) Counterpart. This Agreement may be executed originally or by telecopy
and may be executed in counterparts, each of which when so executed
will be deemed to be an original, and such counterparts together will
constitute one and the same instrument, which will be sufficiently
evidenced by either such original counterpart.
IN WITNESS WHEREOF the Company has duly executed this Agreement by its
authorised officers in that behalf as of the day first above written.
XXXXXXXXX CONSULTING SERVICES INC.
Per: /s/ Xxxx Xxxxxxx
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Per: Xxxx Xxxxxxx
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IN WITHESS WHEREOF the Purchaser has duly executed this Agreement by its
authorised officers in that behalf as of the day first above written.
NOMATTERWARE INC.
Per: /s/ Xxxx Xxxxxxxxx
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Per: Xxxx Xxxxxxxxx
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Exhibit 10.1 - Addendum
April 27, 2001
The following document outlines an addendum to the sales contract of the
NoMatterWare software to NoMatterWare Inc. from Xxxxxxxxx Consulting Services,
Inc.
Xxxxxxxxx Consulting and NoMatterWare have agreed to amend the contract,
Removing the right by Xxxxxxxxx to reclaim the intellectual property sold to
NoMatterWare in the event that full payment isn't made to Xxxxxxxxx on or before
May 14, 2001.
The new clause is to read as follows:
In the event that Xxxxxxxxx is not paid in full for the technology purchased by
NoMatterWare on or before May 14, 2001, any outstanding monies owed will be
subject to an interest penalty of 12% (twelve percent) per annum, compounded
annually for as long as the debt is outstanding.
Xxxxxxxxx Consulting and NoMatterWare have also agreed that Xxxxxxxxx will take
no action to collect the outstanding debt for a period of two years, after which
time Xxxxxxxxx Consulting may at their option increase the interest rate to a
maximum of 20% or use whatever means necessary as permitted by law to collect
the outstanding debt.
/s/ Xxxx Xxxxxxxxx April 27, 2001
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Per: Xxxx Xxxxxxxxx Date
President, NoMatterWare Inc.
/s/ Xxxx Xxxxxxx April 27, 2001
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Per: Xxxx Xxxxxxx Date
President, Xxxxxxxxx Consulting Services, Inc.
