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Exhibit 10.14
VERITEL CORPORATION OF AMERICA
PRIVATE LABEL OEM DISTRIBUTION AND LICENSE AGREEMENT
This Agreement ("Agreement") is made as of this 24th day of September,
1998 ("Effective Date"), by and between Veritel Corporation of America, an
Illinois corporation, with its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Veritel"), and Registry Magic
Incorporated, a Florida corporation with its principal place of business at ▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Distributor").
WHEREAS, Veritel is a leading developer, manufacturer, and distributor of
voice verification technology products and components; and
WHEREAS, Distributor is a leading developer, manufacturer, and distributor
of speech recognition technology products and services; and
WHEREAS, Distributor wishes to distribute a private label version of
Veritel's VoiceCrypt product.
NOW THEREFORE in consideration of the mutual promises, covenants, terms
and conditions set forth in this Agreement, including any appendices, and for
other good and valuable consideration the receipt, adequacy, and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1. "PRIVATE LABEL PRODUCT" means the private label version of Veritel's
VoiceCrypt product, which shall be modified and repackaged under a name chosen
by Distributor, and as further described in Section 2 of the Purchase Order of
even date herewith and attached hereto.
1.2. "DISTRIBUTION PARTNERS" means original equipment manufacturers,
resellers, system integrators, distributors, dealers, and other third parties
that acquire software products by purchase or license for resale and sublicense
to end user customers.
1.3. "END USER" means a party who uses the Private Label Products for its
own purposes as opposed to use for distribution or resale purposes.
1.4. "INTELLECTUAL PROPERTY RIGHT" means any and all rights existing from
time to time under patent law, copyright law, semiconductor chip design law,
moral rights law, trade secret law, trademark law, domain name law, unfair
competition law, and any other similar proprietary rights law, and any and all
renewals, extensions, and restorations thereof, now or hereinafter in force and
effect.
1.5. "GROSS PROFIT" means the total revenue received by Distributor for
the sale or license of Private Label Products.
1.6. "VERITEL SOFTWARE" means the executable Object Code for Software
Deliverable as defined in attached Purchase Order(s) to this Agreement.
1.7. "MINOR ENHANCEMENTS" means upgrades and features that do not result
in major functional changes or define a new purpose of use for the Veritel
Software.
1.8. "MAJOR ENHANCEMENTS" means upgrades and features that result in major
functional changes or define a new purpose of use for the Veritel Software.
1.9. "SPECIFICATIONS" means the functional performance parameters for the
Veritel Software as identified in Attachment 1 hereto.
1.10. "APPLICATION SOURCE CODE" shall mean the Source Code that defines
and controls the user interface and/or controls data input and output. It
specifically excludes Core Source Code.
1.11. "OBJECT CODE" means the machine-readable code that is used to
provide the functionality of the Veritel Software.
1.12. "SOURCE CODE" means computer programs, instructions and related
material written in a human-readable source language in form capable of serving
as the input to a compiler or assembler program, and in form capable of being
modified, supported and enhanced by programmers reasonably familiar with the
source language.
1.13. "CORE SOURCE CODE" shall mean the: (a) Code which serves the purpose
of voice recognition, (b) Code which serves the purpose of voice verification,
and/or (c) Any Code which RMI and Veritel deem to be outside the scope of this
Agreement.
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2. LICENSE GRANT
2.1. Subject to Distributor's payments hereunder and compliance with the
other terms of this Agreement, Veritel hereby grants to Distributor, and
Distributor hereby accepts, subject to the restrictions and conditions set forth
in this Agreement and any attached Purchase Order which is hereby incorporated
by reference and made a part of this Agreement, the nonassignable, nonexclusive,
nontransferable worldwide license to use the Veritel Software to create Private
Label Products, and to use, reproduce, distribute copies of, transmit,
demonstrate, publicly perform, publicly display, and market sublicenses for
Private Label Products to End Users, in object code form only provided that
Distributor may market or grant such sublicenses only directly to businesses
that are End Users or by means of the Internet to any End Users and Distributor
may not use Distribution Partners for any reason or purpose except as is
necessary in the cause of distributing software over the Internet or directly to
businesses.
2.2. Veritel may from time to time notify Distributor in writing of
countries in which Distributor may not license Private Label Products to End
Users. The initial list of such countries is set forth in the Purchase Order.
Distributor shall not grant sublicenses to any End User including the right to
use Private Label Products in such countries.
2.3. Distributor shall have only those rights in the Veritel Software that
are expressly licensed to it pursuant to this Agreement, and to the extent that
there is a conflict between the body of this Agreement and the Purchase Order,
the body of this Agreement will control.
2.4. Distributor shall also impose on each of its End Users the
substantial equivalent of the obligations and restrictions set forth in Sections
2, 3, 4, 9, and 11.4 of this Agreement.
2.5. Distributor shall indemnify Veritel and hold it harmless from and
against all Claims, (defined below) arising herefrom, to the extent caused by
the intentional misconduct or negligent actions or omissions of Distributor, the
distribution of Private Label Products, or any disclosure or transfer of any
Source Code.
2.6. At the request of Distributor, Veritel shall deliver to Distributor
certain portions or all of the Application Source Code for the Veritel Software
if both parties deem such delivery necessary to implement updates or Minor
Enhancements. Any such Application Source Code shall be licensed as, and
otherwise deemed, part of the Veritel Software for purposes of Sections 2, 4 and
9.
3. CONDITIONS OF USE
3.1. COPIES. Distributor shall be permitted to make as many copies of the
Private Label Products as may be required for its authorized uses pursuant to
this Agreement, which shall be governed by the terms of this Agreement.
3.2. SUBLICENSING. Except as expressly authorized in this Agreement,
Distributor shall not license, sublicense, or otherwise transfer the Veritel
Software or any of the rights or licenses granted herein to any third party
without the prior written permission of Veritel.
3.3. OTHER USES. Distributor shall not: (i) decompile, reverse engineer,
disassemble, or otherwise determine or attempt to determine the source code for
the Veritel Software; (ii) create any derivative works based upon Veritel
Software (other than the Private Label Products described in Section 2 of the
Purchase Order attached hereto of even date herewith); or (iii) permit or
authorize any third party to do any of the foregoing.
3.4. COPY PROTECTION. Veritel and Distributor shall agree upon a mutually
acceptable form of software based mechanism, system, or technology for the
control of the number of copies which is allowed to be made or that can operate
simultaneously. Distributor shall not defeat or attempt to defeat any such
mutually agreed mechanism, system, or technology.
3.5. ATTRIBUTION. Unless otherwise requested by Veritel in writing,
Distributor shall include Veritel's logo and marks on the Product and on all
marketing materials, advertising and packaging of the Products, as well as in
the accompanying user documentation. Veritel's logo and marks shall appear in
the size and place similar to other licensors' logos or marks, or in the absence
thereof, in a reasonable place to be determined at Distributor's discretion. All
such use of Veritel's logo or trademarks shall inure to the benefit of Veritel
and shall be in accordance with Veritel's usage and advertising policies, as
they may be modified from time to time by Veritel. Notwithstanding the
foregoing, Distributor shall give appropriate copyright credit to Veritel in a
form and location acceptable to Veritel.
4. OWNERSHIP
4.1. Title, ownership, and all Intellectual Property Rights in and to the
Veritel Software and any copies thereof, including all technical know-how, are
and shall remain the exclusive property of Veritel.
5. TAXES
5.1. The fees listed in this Agreement or any Purchase Order do not
include taxes. Except for taxes based upon the net income or revenues of
Veritel, Distributor shall be responsible for paying all taxes imposed by any
federal, state, or local government agency either based upon the Private Label
Products or their use, or any payment made by Distributor to Veritel pursuant to
this Agreement (including any sales, use, property, value-added taxes), whether
such taxes are now or hereafter imposed.
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6. INFRINGEMENT WARRANTY AND INDEMNITY
6.1. VERITEL INFRINGEMENT WARRANTY. Veritel represents and warrants that:
(i) Veritel owns all Intellectual Property Rights incorporated into or provided
with respect to the Veritel Software and that it is authorized to grant the
licenses under this Agreement; and (ii) the Veritel Software, does not infringe
any third party Intellectual Property Rights. The foregoing representation and
warranty, and any rights provided in this Section 6, are solely for the benefit
of Distributor. Distributor may make such warranties to its sublicensees as it
deems appropriate but may not under any circumstances make any warranty on
behalf of Veritel or pass Veritel's warranty through to any sublicensee.
6.2. INDEMNIFICATION BY VERITEL. Veritel shall indemnify and hold
Distributor harmless from any and all third party claims, suits, and liabilities
(including reasonable attorneys' fees and expenses) arising out of: (i) the
inaccuracy of any representation or warranty made by Veritel in this Section 6;
or (ii) any claim that the Veritel software infringes any third party
Intellectual Property Right; provided that Distributor promptly notifies Veritel
in writing of any third party claim with respect to the Veritel Software and
that Veritel shall have sole control of the defense of any such third party
intellectual property claim and all negotiations for settlement. Notwithstanding
the foregoing, Distributor shall be entitled to be represented by separate
counsel at its own expense.
6.3. NO INDEMNIFICATION OBLIGATION. Veritel shall have no liability for
any third party claim of infringement of Intellectual Property Rights based on:
(i) use of a superseded or altered release of the Veritel Software if the
alleged infringement would have been avoided by the use of a current, unaltered
release of the Veritel Software; or (ii) the combination, operation, or use of
the Veritel Software with applications, software, computer programming, system,
or technology if the alleged infringement would have been avoided by the use of
the Veritel Software without such applications, software, computer programming,
system, or technology.
6.4. OPTION TO AVOID INFRINGEMENT. In the event that, in Veritel's
opinion, any portion of the Veritel Software is likely to or does become the
subject of a third party claim alleging violation of Intellectual Property
Rights, Veritel may procure for Distributor: (i) the right to continue using the
Veritel Software; (ii) modify the Veritel Software to make it noninfringing; or
(iii) or replace the Veritel Software with a functionally equivalent (as
determined by Veritel), noninfringing replacement. If none of the foregoing
alternatives is, in Veritel's opinion, reasonably and economically available,
Veritel may terminate Distributor's right to use the Veritel Software upon
thirty (30) days' written notice to Distributor and Veritel shall refund a pro
rata portion (based on amortization over a deemed three-year life) of fees paid
by Distributor to Veritel representing the fees paid for the Veritel Software.
6.5. COMPLETE LIABILITY OF VERITEL. THIS SECTION 6 SETS FORTH THE COMPLETE
LIABILITY OF VERITEL WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY
RIGHTS AND SECTION 6.4 SETS FORTH THE EXCLUSIVE REMEDY WITH RESPECT THERETO.
6.6. DISTRIBUTOR INFRINGEMENT WARRANTY. Distributor represents and
warrants that: (i) Distributor has the capability and resources to fulfill and
perform all of its obligations under this Agreement; and (ii) any Distributor
application, software, computer programming, system, or technology with which
the Veritel Software may be connected or combined will not infringe any third
party Intellectual Property Rights, either before or after such combination.
6.7. INDEMNIFICATION BY DISTRIBUTOR. Distributor shall indemnify and hold
Veritel, its subsidiaries, affiliates, shareholders, directors, officers,
successors and assigns harmless from and against any and all third party Claims
arising out of: (i) the inaccuracy of any representation or warranty made by
Distributor in this Section 6; or (ii) any claim that the Distributor
application, software, computer programming, system, or technology into which
the Veritel Software may be incorporated infringes any third party Intellectual
Property Right; provided that Veritel promptly notifies Distributor in writing
of any such third party claim and that Distributor shall have sole control of
the defense of any such third party intellectual property claim and all
negotiations for settlement. For purposes of this Agreement "Claims" shall mean
claims, litigation, actions, suits, administrative proceedings, losses, damages,
injuries, liabilities, demands, judgments, settlements, costs and expenses
(including, but not limited to reasonable attorneys' fees and expenses),
penalties and compensatory, multiple, exemplary, and punitive damages.
Notwithstanding the foregoing, Veritel shall be entitled to be represented by
separate counsel at its own expense.
6.8. COMPLETE LIABILITY OF DISTRIBUTOR. THIS SECTION 6 SETS FORTH THE
COMPLETE LIABILITY OF DISTRIBUTOR WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS.
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7. REPRESENTATIONS AND WARRANTIES
7.1. REPRESENTATIONS AND WARRANTIES OF VERITEL.
7.1.1. SOFTWARE. Veritel warrants solely for the benefit of
Distributor that, in its unmodified state, the Veritel Software shall operate in
conformity to the Specifications relating to it. If the Veritel Software shall
fail to conform to such Specifications, Veritel shall use commercially
reasonable efforts to correct such nonconformities. If Veritel cannot make
Veritel Software operate as warranted, then Veritel shall refund to Distributor
all amounts paid for such Veritel Software and this shall be Distributor's sole
and exclusive remedy. Veritel does not represent or warrant that: (i) the
Veritel Software will meet Distributor's requirements; (ii) the Veritel Software
will operate in the combinations which Distributor may select for use; (iii) the
operation of the Veritel Software will be error-free; or (iv) any errors in the
Veritel Software will be corrected. Distributor may make such warranties to its
sublicensees as it deems appropriate but may not under any circumstances make
any warranty on behalf of Veritel or pass Veritel's warranty through to any
sublicensee.
DEFECT WARRANTY. If Veritel becomes aware of errors in the Veritel Software that
prohibit the use of the Veritel Software within the Private Label Products,
Veritel will make commercially reasonable efforts to correct such errors in a
timely manner. An error shall mean any error, problem, or defect resulting from
(1) an incorrect functioning of Code, or (2) an incorrect or incomplete
statement of diagram in Documentation, if such an error, problem, or defect
renders the Code inoperable, causes the Code to fail to meet the specifications
thereof, causes the Documentation to be inaccurate or incomplete in any material
respect, causes incorrect results, or causes incorrect functions to occur when
any such materials are used.
7.1.2. YEAR 2000. Veritel represents and warrants that the Veritel
Software will operate in conformity to the Specifications relating to it before,
on, or after, the date January 1, 2000, for purposes of Year 2000 (including
Leap Year) processing. Veritel represents that it is not aware of any way in
which such matters are relevant to the operation of the Veritel Software.
7.2. LIMITATION ON WARRANTIES. THE LIMITED WARRANTIES OF VERITEL SET FORTH
ABOVE ARE MADE FOR THE BENEFIT OF DISTRIBUTOR ONLY AND SHALL NOT EXTEND TO ANY
THIRD PARTIES. THE REMEDY DESCRIBED IN SECTION 7.1.1 IS THE SOLE AND EXCLUSIVE
REMEDY FOR BREACH OF THE LIMITED WARRANTIES SET FORTH ABOVE. EXCEPT AS PROVIDED
IN THIS SECTION 7, VERITEL MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, FROM A COURSE OF PERFORMANCE OR DEALING, TRADE
USAGE, OR OF UNINTERRUPTED OPERATION WITHOUT ERROR, INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. VERITEL MAKES NO WARRANTIES WITH REGARD TO THE RESULTS OBTAINED FROM
THE OPERATION OR USE BY DISTRIBUTOR OF THE VERITEL SOFTWARE.
7.3. VERITEL SHALL NOT BE LIABLE TO DISTRIBUTOR, OR ANY THIRD PARTY, FOR
ANY THIRD PARTY CLAIMS BASED ON CONTRACT, TORT, OR OTHER GROUNDS (INCLUDING THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) RELATED TO
THIS AGREEMENT, THE PRIVATE LABEL PRODUCTS OR ANY DEVICE, MATERIAL, OR THING TO
WHICH THE PRIVATE LABEL PRODUCTS ARE ATTACHED, OR OF WHICH ANY PRIVATE LABEL
PRODUCT IS MADE A PART, OR WITHIN WHICH ANY SUCH PRODUCT IS ENCLOSED, REGARDLESS
OF WHETHER VERITEL MAY BE WHOLLY, CONCURRENTLY, PARTLY, JOINTLY, OR SOLELY
NEGLIGENT OR OTHERWISE AT FAULT.
7.4. THE LIMITED WARRANTIES SET FORTH ABOVE SHALL NOT APPLY TO ANY
PRODUCTS THAT HAVE BEEN SUBJECTED TO IMPROPER USE OR STORAGE, USE BEYOND RATED
CONDITIONS, IMPROPER MAINTENANCE, NEGLIGENCE, OR ACCIDENT. DISTRIBUTOR SHALL
PROVIDE VERITEL ACCESS TO THE PRIVATE LABEL PRODUCTS AS TO WHICH DISTRIBUTOR
CLAIMS A PURPORTED DEFECT OR NONCONFORMANCE IN THE VERITEL SOFTWARE. UPON
REQUEST BY VERITEL, DISTRIBUTOR SHALL, AT ITS OWN RISK AND EXPENSE, PROMPTLY
RETURN SUCH PRODUCTS IN QUESTION TO VERITEL.
7.5. THE FOREGOING WARRANTIES BY VERITEL ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE VERITEL SOFTWARE OR PRIVATE
LABEL PRODUCTS PROVIDED HEREUNDER. VERITEL SHALL HAVE NO LIABILITY WHATSOEVER
FOR ANY COVER OR SET-OFF NOR FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY,
INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF VERITEL HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS PROVIDED IN SECTION
6.4 OF THIS AGREEMENT, REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS
AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, VERITEL'S LIABILITY TO DISTRIBUTOR FOR
ANY REASON AND UPON ANY CAUSE OF ACTION, WHETHER SOUNDING IN TORT, CONTRACT, OR
ANY OTHER LEGAL THEORY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY
DISTRIBUTOR TO VERITEL UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING
TWELVE (12) MONTH PERIOD.
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7.6. ALLOCATION OF RISK. DISTRIBUTOR ACKNOWLEDGES AND AGREES THAT THE FEES
CHARGED BY VERITEL IN THIS AGREEMENT REFLECT AN ALLOCATION OF RISK BETWEEN THE
PARTIES, INCLUDING, BUT NOT LIMITED TO, THE LIMITATION OF LIABILITY AND
EXCLUSIVE REMEDIES DESCRIBED IN THIS AGREEMENT. A MODIFICATION OF THE ALLOCATION
OF RISKS SET FORTH IN THIS AGREEMENT WOULD AFFECT THE FEES CHARGED BY VERITEL,
AND IN CONSIDERATION OF SUCH FEES, DISTRIBUTOR AGREES TO SUCH ALLOCATION OF
RISK.
8. SUPPORT AND MAINTENANCE
8.1. SUPPORT. Distributor shall provide first level and second level
support to its End Users and Distribution Partners. For a period of one (1) year
after the Effective Date, Veritel will provide third level support to
Distributor, provided that Distributor's support personnel have developed
reasonable competence with the Veritel Software (through training offered by
Veritel or otherwise) Veritel will provide commercially reasonable telephone and
online support for the Veritel Software to Distributor's engineering and
technical support personnel to assist in their support of Distributor's
Distribution Partners and End Users. Veritel's telephone support will be
available on standard business days, holidays excepted, from 9:00 a.m. to 5:00
p.m. Central Time.
8.1.1. First level support shall mean very basic assistance in the
use of Products.
8.1.2. Second level support shall include gathering and checking
information provided from first level support and responding to unresolved
issues for which answers may be available from alternative resources. Second
level support shall also include testing, collection of error logs and files,
and use of diagnostic tools.
8.1.3. Third level support is provided from Veritel to Distributor
in the event Distributor is unable to resolve the problem
8.2. MAINTENANCE, UPDATES AND UPGRADES. For a period of one (1) year after
the Effective Date, Veritel will provide to Distributor Minor Enhancements for
the Veritel Software. Major Enhancements may be negotiated under a separate
agreement. Licensee shall have sole responsibility for distributing any such
releases.
9. CONFIDENTIALITY
9.1. CONFIDENTIAL INFORMATION. The parties acknowledge and agree that it
may be necessary for each of them or their directors, officers, partners,
agents, or representatives to disclose or make available to each other
information and materials that are confidential or proprietary or contain
valuable trade secrets relating to their respective businesses (collectively the
"Confidential Information"), and that some such information may already have
been disclosed prior to the date of this Agreement. Prior to disclosure to the
other party, the disclosing party shall use commercially reasonable efforts to
designate all Confidential Information by marking such materials or information,
if in tangible form, with a "Confidential" or similar legend. In any event,
Veritel and Distributor agree that even if not so marked, the Veritel Software
and Private Label Products, and all other components of both that are not
readily apparent to an end-user, are Confidential Information, as are any
documentation, descriptions, and embodiments thereof.
9.2. NON-DISCLOSURE. During the term of this Agreement and any Purchase
Order accepted hereunder, and for the longer of three (3) years or the longest
time permitted by relevant law following the termination of this Agreement, each
of the parties agrees: (i) to use commercially reasonable efforts to protect the
Confidential Information of the other party from unauthorized use or disclosure
and to use at least the same degree of care with regard thereto as it uses to
protect its own Confidential Information of a like nature; (ii) to use and
reproduce the Confidential Information of the other party only as permitted
under this Agreement and only as needed to perform its duties hereunder; (iii)
except pursuant to Distributor's license to grant sublicenses hereunder, not to
disclose or otherwise permit access to the Confidential Information of the other
party to any third party without the disclosing party's prior written consent
and then only to the extent reasonably required to accomplish the intent of this
Agreement; and (iv) to ensure that its employees participating in the
performance of this Agreement are advised of the confidential nature of the
Confidential Information of the other party, that they are prohibited from using
or copying the Confidential Information of the other party for any purpose other
than performing their obligations under this Agreement, from revealing the
Confidential Information of the other party for any other purpose whatsoever,
and from taking any action prohibited to either party under this Section 9.2.
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9.3. COMPELLED DISCLOSURE. In the event that either party or any of its
directors, officers, partners, or employees is required by deposition,
interrogatory, request for documents, subpoena, civil investigative demand, or
similar process to disclose any of the Confidential Information of the other
party, such compelled party or any such person may disclose only that portion of
the Confidential Information of the other party that such party or such person
is legally required to disclose. If legally permitted, a party shall first
provide notice to the other party of any such process requiring such disclosure
upon receipt thereof in order to provide the other party with the opportunity to
petition the court or administrative body to prevent such disclosure.
9.4. EXCEPTIONS. Information will not be considered to be Confidential
Information if it: (i) is already, or otherwise becomes, publicly known by third
parties other than as a result of an act or omission of the receiving party;
(ii) is lawfully received, after disclosure hereunder, from a third party having
the right to disseminate the information to the receiving party and without
restriction on disclosure; (iii) is furnished to others by the disclosing party
without restriction on disclosure; or (iv) can be shown by the receiving party
to have been independently developed by such party without use of or reference
to the Confidential Information of the disclosing party. Furthermore, it is
understood that each party shall be free to use ideas, concepts, know-how and
techniques related to the scope of its business and practice, provided they
contain no specific or identifiable elements unique to the other party hereto or
its operations and they otherwise contain no Confidential Information of the
other party.
9.5. RETURN OF CONFIDENTIAL INFORMATION. Except as otherwise expressly
provided herein, upon termination or completion of this Agreement, the parties
shall promptly return to each other all materials that were delivered to each
party by one another with respect to such Agreement or Purchase Order,
including, but not limited to, all tangible forms of Confidential Information
and any copies thereof. Furthermore, upon the return thereof, each party shall
cause one of its officers or principals to certify to the other party in writing
that that party has complied with this Section 9.5.
9.6. INJUNCTIVE RELIEF. The parties agree that any breach by a party or
any of its directors, officers, partners, employees, agents or representatives
of any provisions of this Section 9.6 may cause immediate and irreparable injury
to the other party and that, in the event of such breach, the injured party will
be entitled to seek injunctive relief as well as any and all other remedies
available at law or in equity.
10. MARKETING SUPPORT
10.1. PRESS RELEASES. Neither Veritel nor Distributor may issue press
releases pertaining to this Agreement or Purchase Order without the written
permission of the other party.
10.2. JOINT MARKETING. When requested, and if available, Veritel will
provide, at Distributor's expense, sales marketing support to Distributor for
significant customer opportunities.
11. TERM AND TERMINATION
11.1. TERM. The term of this Agreement shall commence on the Effective
Date set forth above and shall continue for the term provided in the attached
Purchase Order.
11.2. TERMINATION BY DISTRIBUTOR. DISTRIBUTOR may terminate this Agreement
upon written notice to Veritel (a) if Veritel breaches this Agreement and fails
to correct the breach within thirty (30) days following written notice
specifying the breach; (b) if Veritel makes an assignment for the benefit of
creditors, or files a voluntary petition of bankruptcy, or seeks or consents to
any reorganization or similar relief, or is adjudicated, bankrupt or insolvent,
or has commenced against it by a third party any bankruptcy, insolvency,
reorganization or similar petition or proceeding. In the event of a sale,
transfer, or other disposition of the "control" of Veritel (which for the
purpose of this Section 11.2 shall mean effective control of the management of
Veritel) or of any substantial part of Veritel's assets, interests, business or
property, RMI must approve the transfer the rights granted under this agreement
to the third party but may not reasonably withhold this transfer. Termination
shall not relieve Distributor of its obligation to pay all license fees that
have accrued under this Agreement.
11.3. TERMINATION BY VERITEL. Veritel may terminate this Agreement upon
written notice to Distributor (a) if Distributor breaches this Agreement and
fails to correct the breach within thirty (30) days following written notice
specifying the breach; (b) if Distributor makes an assignment for the benefit of
creditors, or files a voluntary petition of bankruptcy, or seeks or consents to
any reorganization or similar relief, or is adjudicated, bankrupt or insolvent,
or has commenced against it by a third party any bankruptcy, insolvency,
reorganization or similar petition or proceeding. In the event of a sale,
transfer, or other disposition of the "control" of Registry Magic (which for the
purpose of this Section 11.3 shall mean effective control of the management of
Registry Magic or of any substantial part of Registry Magic's assets, interests,
business or property, Veritel must approve the transfer of the rights granted
under this agreement to the third party but may not reasonably withhold this
transfer.
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11.4. EFFECT OF TERMINATION. Upon termination of this Agreement: (i)
Distributor shall return all copies of the Veritel Software and immediately
cease all further licensing and distribution of Private Label Products; and (ii)
all of Veritel's warranty, support and maintenance obligations shall cease,
including without limitation Veritel's obligation to provide maintenance
releases, updates and defect support. Termination of this Agreement or any
Purchase Order shall not limit either party from pursuing any other remedies
that may be available to it, including injunctive relief, nor shall termination
relieve Distributor of its obligation to pay all license fees that have accrued
or that Distributor has agreed to pay under any Purchase Order. The parties'
obligations under Sections 3, 6, 7 and 9 shall survive termination of this
Agreement.
12. GENERAL
12.1. COMPLETE AGREEMENT. This Agreement, including any Purchase Orders
hereunder, is the complete and exclusive statement of the agreement of the
parties with respect to the subject matter hereof and supersedes and merges all
prior proposals, understandings, and agreements, whether oral or written,
between the parties with respect to the subject matter hereof. This Agreement
may not be modified except by a written instrument duly executed by the parties
hereto.
12.2. NO WAIVER. No failure to exercise, and no delay in exercising, on
the part of either party, any right, power or privilege hereunder will operate
as a waiver thereof, nor will any party's exercise of any right, power or
privilege hereunder preclude further exercise of the same right or the exercise
of any other right hereunder.
12.3. ENFORCEABILITY. If any part of this Agreement shall be adjudged by
any court of competent jurisdiction to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not be
affected or impaired thereby and shall be enforced to the maximum extent
permitted by applicable law. If any remedy set forth in this Agreement is
determined to have failed of its essential purpose, then all other provisions of
this Agreement, including the limitations of liability and exclusion of damages,
shall remain in full force and effect.
12.4. NO CONSTRUCTION AGAINST DRAFTER. If an ambiguity or question of
intent arises with respect to any provision of this Agreement, the Agreement
will be construed as if drafted jointly by the parties and no presumption or
burden of proof will arise favoring or disfavoring either party by virtue of
authorship of any of the provisions of this Agreement.
12.5. FORCE MAJEURE. Either party shall be excused from performance and
shall not be liable for any delay in whole or in part, caused by the occurrence
of any contingency beyond the reasonable control either of the excused party or
its subcontractors or suppliers. These contingencies include, but are not
limited to, war, sabotage, insurrection, riot or other act of civil
disobedience, act of public enemy, failure or delay in transportation, act of
any government or any agency or subdivision thereof affecting the terms hereof,
accident, fire, explosion, flood, severe weather or other act of God, or
shortage of labor or fuel or raw materials.
12.6. NOTICES. Any notice required or permitted hereunder to the parties
hereto will be deemed to have been duly given only if in writing to the address
of the receiving party as set forth on the initial page hereof or such other
address as may be specified by such party in a notice delivered to the other
party in accordance with this Section and delivered by: (i) certified U.S. mail,
return receipt requested, postage prepaid; (ii) nationally recognized overnight
courier, delivery charges prepaid; or (iii) by hand delivery with signed
receipt. Any notice shall be deemed delivered: (a) on the fifth (5th) business
day following deposit of such notice with the U.S. Postal Service if notice is
given in accordance with (i), above; (b) on the second (2nd) business day
following deposit of such notice with the courier if notice is given in
accordance with (ii), above; or (c) on the date of actual delivery if notice is
given in accordance with (iii), above.
12.7. GOVERNING LAW AND JURISDICTION. This Agreement shall be deemed to
have been made in, and shall be construed pursuant to the laws of, the State of
Illinois.
12.8. HEADINGS AND SUBSECTIONS. Section headings are provided for
convenience of reference and do not constitute part of this Agreement. Any
references to a particular section of this Agreement shall be deemed to include
reference to any and all subsections thereof.
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12.9. ASSIGNMENT. Neither party may assign or delegate any or all of its
rights (other than the right to receive payments) or its duties or obligations
hereunder without the consent of the other party, which consent shall not be
unreasonably withheld; provided, however, that either party may assign this
Agreement, without the need to obtain consent of the other party, a successor in
interest to substantially all of the business of that party to which this
Agreement relates. An assignee of either party authorized hereunder shall be
bound by the terms of this Agreement and shall have all of the rights and
obligations of the assigning party set forth in this Agreement. If any assignee
shall fail to agree to be bound by all of the terms and obligations of this
Agreement, then such assignment shall be deemed null and void and of no force or
effect.
12.10. NO THIRD PARTY BENEFIT. The provisions of this Agreement are for
the sole benefit of the parties hereto. This Agreement confers no rights,
benefits, or claims upon any person or entity not a party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
VERITEL CORPORATION OF AMERICA
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Vice President and CFO
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REGISTRY MAGIC INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: President and CEO
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