ASP SOFTWARE PRODUCTS
DISTRIBUTION AND LICENSE AGREEMENT
DATED for reference the 1st day of January 2001.
BETWEEN:
SIDEWARE INTERNATIONAL SRL, organized
pursuant to the laws of Barbados, and
having an office at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇, Barbados, West Indies
("Sideware")
OF THE FIRST PART;
AND:
SIDEWARE CORP., a company incorporated
pursuant to the laws of the State of
Washington, U.S.A., and having an office at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇.▇.▇.
(the "Distributor")
OF THE SECOND PART;
WHEREAS:
A. The parties wish to replace the Distribution and License
Agreement dated September 1, 2000 with this Agreement to reflect
product changes and developments made by Sideware.
B. Sideware has developed computer software described in Schedule
"A" hereto (the "Software") which allows an application
service provider (ASP) to facilitate real-time communication,
support and services between the ASP's customers and internet
users;
C. Sideware has appointed the Distributor, and the Distributor has
agreed, to market and distribute the Software in the 50 United
States, the District of Columbia, and Puerto Rico (the
"Authorized Area") on the terms and conditions contained
herein.
D. Sideware has agreed to license the Software to the Distributor
for the purpose of the Distributor hosting the Software for its
customers in the Authorized Area;
IN CONSIDERATION of the mutual promises and covenants contained
herein, the parties record their agreement as follows:
1.0 GRANT OF RIGHTS
Sales and Distribution Rights
1.1 Subject to the terms of this Agreement, Sideware hereby grants to
the Distributor a non-exclusive right to sell and distribute the
Software in the Authorized Area to ASPs, value-added resellers, and
subdistributors for the Term of this Agreement, as defined herein.
1.2 Notwithstanding paragraph 1.1, the Distributor shall have the
right to sell and distribute the Software outside the Authorized Area
provided that Sideware has consented in writing to each such sale.
1.3 Sideware shall deliver to the Distributor copies of the Software
for sale and distribution in accordance with section 3.0 herein.
Sideware shall provide to the Distributor evaluation copies of the
Software free of charge for a limited time period following which the
copies must be returned or purchased.
1.4 Software Changes - Sideware may make changes to the Software as
Sideware deems necessary or advisable without advance notice to
Distributor, except that Sideware shall give the Distributor at least
thirty (30) days written notice before discontinuing the sale or
distribution of the Software pursuant to this Agreement.
License to Use
1.5 Sideware hereby agrees to license the Software to the Distributor
on the terms of the Software License Agreement. The Distributor will
pay Sideware for this license in accordance with the prices specified
in Schedule "B" hereto.
2.0 TERM
2.1 Term - The Term of this Agreement shall commence January 1, 2001,
and subject to earlier termination in accordance with this Agreement,
shall expire on December 31, 2002. The Term shall automatically be
renewed for one (1) year periods thereafter unless either party gives
notice to the other party, at least sixty (60) days before the end of
the then current year period, of its desire to let the Agreement
expire at the end of such year period (the "Term").
3.0 PURCHASE ORDERS
3.1 The Distributor shall order copies of the Software from Sideware
by issuance of a written purchase order to Sideware or Sideware's
manufacturing representative. Each purchase order shall state
components of the Software required, a requested shipment date, the
method of shipment, and the location to which each unit of Software
should be shipped.
3.2 Sideware will use its best efforts to meet the requested shipment
date in the Distributor's purchase order, but will not be liable to
the Distributor or to any other person if it fails to meet the
requested shipment date. Orders without a requested shipment date
will be processed for shipment according to Sideware's then current
shipping schedule.
3.3 Shipping charges shall be paid by the Distributor and will be
shown separately on Sideware invoices.
4.0 SOFTWARE PRICES
4.1 Software Prices - The prices payable by the Distributor for the
Software are set out in Schedule "B" hereto. All prices are quoted
F.O.B. Sideware's shipping points, exclusive of taxes, shipping, and
insurance charges, which shall all be the Distributor's costs.
4.2 Changes to Software Prices - Distributor hereby acknowledges that
Sideware may change the prices for the Software contained in Schedule
"B" by giving written notice to the Distributor no less than thirty
(30) days prior to the effective date of such changes. Any such
written notice given by Sideware shall set forth the new effective
date and shall be attached hereto as an amended Schedule "B".
4.3 If any change in the suggested list price and Distributor's
Discount results in a higher price to the Distributor, Sideware agrees
to honour the previous lower price for purchase orders based on the
Distributor's outstanding quotations to customers executed within
ninety (90) days of the price change. The Distributor will provide a
list of outstanding proposals within ten (10) working days of
receiving notice of the change.
4.4 Resale Prices - The Distributor is free to determine its own
resale prices for the Software.
4.5 Taxes and Duties - The prices listed in Schedule "B" are
exclusive of all applicable taxes and duties. The Distributor shall
pay all taxes and duties associated with the sale and delivery of the
Software, exclusive of taxes based on Sideware's income. If claiming
tax exemption, the Distributor must provide Sideware with valid tax
exemption certificates.
4.6 Payment Terms - Payment to Sideware for delivered copies of the
Software shall be made no later than thirty (30) days after the
invoice date.
4.7 No Withholding or Set-off - The Distributor shall not withhold
any amount due and owing pursuant to this Agreement either on the
basis that the Distributor disputes some issue in respect of, or its
obligations under, this Agreement, or as a set-off of obligations
which are allegedly owing to the Distributor by Sideware.
4.8 Currency - All payments due hereunder to Sideware shall be made
in United States currency by wire transfer drawn on a United States
bank, unless otherwise specified by Sideware.
5.0 RECORDS
5.1 Access to Records - During the Term and for one (1) year
following the termination of this Agreement, the Distributor shall
keep at its principal place of business full, accurate and complete
records and books of account relating to the Software, and shall make
them available for examination, inspection and audit at all reasonable
times by Sideware or duly authorized independent accountants
designated by Sideware. Sideware and the accountants shall also be
entitled to investigate generally all the business transactions
carried on by the Distributor relating to this Agreement, to call for
all vouchers supporting the account documentation, including orders
received, work sheets, invoices, bank account documentation, and all
other relevant documents, and to make notes and copies of any
information.
6.0 END USER LICENSE AGREEMENTS
6.1 All copies of the Software purchased by the Distributor shall be
subject to the Software License Agreement provided by Sideware to the
Distributor from time to time, including any modifications or
amendments thereof (the "Software License Agreement"). The
Distributor shall not install, nor permit any of its resellers to
install, a copy of the Software until the ASP purchasing the Software
has agreed to the terms of the Software License Agreement. The
Distributor shall utilize the latest version of the Software License
Agreement when selling the Software directly to ASPs or otherwise
require the resellers to utilize the latest version. The intention of
the parties is that the Distributor acquires each copy of the Software
on the terms set out in the Software License Agreement. Distributor
and Distributor's resellers may modify the Software License Agreement
on reselling the Software to an ASP to include additional software
products or services being supplied by the Distributor or
Distributor's resellers to the ASP, and to restrict the rights under
the License Agreement granted by Sideware.
7.0 SUBDISTRIBUTION AGREEMENTS
7.1 Appointment of Subdistributors - The Distributor may appoint
subdistributors of the Software provided that such subdistributors
enter into the subdistributor agreement provided by Sideware to the
Distributor with respect to the marketing, sale, installation and
integration of the Software (the "Subdistributor Agreement").
Sideware reserves the right to change the Subdistributor Agreement
from time to time, and the Distributor shall utilize the latest
version of such agreement when appointing subdistributors.
8.0 DISTRIBUTOR'S RESPONSIBILITIES
8.1 Installation, Integration and Training - The Distributor will be
responsible for the installation and integration of all copies of
Software the Distributor sells. The Distributor shall further provide
training to its subdistributors regarding the installation,
integration and use of the Software.
8.2 Maintenance and Support - The Distributor will be responsible for
operating telephone and Internet support systems to provide
maintenance and support to all purchasers of the Software. The
Distributor and Sideware will consult from time to time on the scope
and content of the support systems to be provided by the Distributor.
8.3 Notwithstanding the above, Distributor may subcontract the
provision of maintenance and support to purchasers of the Software.
8.4 Fees - The Distributor may, at its discretion, determine the fees
to be charged with respect to the installation, integration, training,
maintenance and support services provided by the Distributor.
8.5 Marketing - The Distributor will use its best efforts to actively
promote, market and sell the Software in the Authorized Area. From
time to time as requested by Sideware, the Distributor will meet with
Sideware for review and consultation regarding the Distributor's
marketing plans and activities. For purposes of such review, the
Distributor will make available to Sideware such information
concerning the Distributor's marketing plans and activities as
Sideware may reasonably request.
8.6 Sales Literature - The Distributor shall be responsible for
developing and producing its own literature for the promotion and
marketing of the Software, however, Sideware will provide samples of
its sales literature to the Distributor at no charge. The Distributor
may purchase Sideware's sales literature at Sideware's cost.
8.7 The Distributor agrees to conduct its marketing and sales of the
Software in a manner that reflects favourably on the Software and on
the reputation and good will of Sideware.
9.0 INTELLECTUAL PROPERTY RIGHTS
9.1 For the purposes of this section 9.0, "Sideware" means Sideware
International SRL and Sideware Systems Inc.
9.2 Ownership of Software - The Distributor acknowledges that all
title and intellectual property rights, copyright, moral rights, and
patent rights in and to the Software (including but not limited to any
images, photographs, animation, video, audio, music, text and
"applets" incorporated into the Software, and all written materials
relating to the Software) are owned or licensed by Sideware. Nothing
in this Agreement shall constitute a grant, transfer, or assignment to
the Distributor of any of the foregoing rights.
9.3 The Distributor warrants that neither it nor any of its employees
will knowingly convert to their own use or to the use of any other
party any industrial secrets or trade secrets owned or licensed by
Sideware in relation to the Software.
9.4 The Distributor acknowledges that Sideware would be irreparably
harmed by any breach of the Distributor's covenants in this section
9.0 and accordingly, would be entitled to equitable and injunctive
relief. The Distributor also acknowledges that Sideware has developed
and uses valuable technical and non-technical information and trade
secrets in the Software. The Distributor will use its best efforts
not to effect or permit the removal or alteration of any trade names
or marks, warning labels, serial numbers or other similar markings
affixed to the Software.
9.5 The Distributor shall not disclose, and shall keep confidential,
all confidential and proprietary information provided by Sideware or
relating to the Software. This provision shall not apply to
information which (i) is or becomes part of the public domain through
no act or omission of the Distributor, (ii) the Distributor receives
from a third party acting without any obligation or restriction of
confidentiality in favour of Sideware, (iii) Sideware releases from
confidential treatment by written consent, or (iv) the Distributor is
required by any applicable law or court order to disclose. The
provisions of this clause shall survive the termination of this
Agreement.
10.0 WARRANTIES
10.1 Sideware's warranties with respect to the Software are limited to
the warranties set out in the Software License Agreement issued by
Sideware. Except as expressly set out below, Sideware makes no
separate warranty to the Distributor.
10.2 Sideware warrants to the Distributor that Sideware has all right,
title, ownership interest and/or marketing rights necessary to provide
the Software to the Distributor.
10.3 THE WARRANTIES AND COVENANTS SET FORTH ABOVE ARE COMPLETE AND ARE
IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS,
EXPRESS OR IMPLIED BY STATUTE, USAGE, CUSTOM OF THE TRADE OR
OTHERWISE. NOTWITHSTANDING ANY OTHER OR PRIOR STATEMENT, WRITTEN OR
ORAL, SIDEWARE MAKES NO OTHER WARRANTIES REGARDING THE SOFTWARE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SIDEWARE EXPRESSLY
DISCLAIMS WARRANTIES OR REPRESENTATIONS OF WORKMANSHIP,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF NEGLIGENCE,
DURABILITY, ACCURACY OR COMPLETENESS OR RESPONSES, LACK OF VIRUSES,
THAT THE SOFTWARE WILL MEET ANY OF A CUSTOMER'S NEEDS, OR THAT THE
SOFTWARE WILL OPERATE ERROR FREE.
11.0 INDEMNIFICATION
11.1 Indemnification by Distributor - The Distributor shall indemnify
and hold harmless Sideware, its shareholders, officers, directors or
agents against any and all losses which they may suffer or incur in
connection with any claim arising out of, as a result of, or relating
in any manner whatsoever to the Distributor's breach of any covenant,
representation or warranty contained in this Agreement.
11.2 The foregoing indemnity shall be contingent upon the following:
(a) Sideware shall give prompt written notice to the Distributor
for any claim, demand, or action for which indemnity is
sought;
(b) Sideware shall fully co-operate in the defence or settlement
of any such claim, demand or action and shall make no
admission without the Distributor's consent; and
(c) Sideware shall obtain the prior written agreement of the
Distributor to any settlement or proposal of settlement
which agreement shall not be unreasonably withheld,
providing such settlement or proposal does not conflict with
the terms of this section.
12.0 DAMAGES AND LIABILITY
12.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES
AGREE THAT IN NO EVENT SHALL SIDEWARE BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING,
BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR
OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR
LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH
OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR
OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE
OF OR INABILITY TO USE PRODUCTS PURCHASED UNDER THIS AGREEMENT, EVEN
IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY OF SIDEWARE, AND
EVEN IF SIDEWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL SIDEWARE'S TOTAL LIABILITY, IN DAMAGES OR OTHERWISE,
EXCEED THE AMOUNTS ACTUALLY RECEIVED BY SIDEWARE FOR SELLING THE
PRODUCTS. NO ACTION REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH PRODUCTS SOLD BY SIDEWARE MAY BE BROUGHT BY THE
DISTRIBUTOR MORE THAN TWO (2) YEARS AFTER THE CAUSE OF AN ACTION HAS
ACCRUED OR SUCH SHORTER STATUTORY PERIOD AS MAY BE APPLICABLE.
13.0 TERMINATION
13.1 Termination Upon Notice - Sideware may terminate this Agreement
forthwith upon written notice to the Distributor if:
(a) the Distributor is in breach of, or attempts to breach, any
of its obligations under this Agreement;
(b) the Distributor is in breach of any of its representations
and warranties under this Agreement;
(c) the Distributor has failed to protect the confidentiality
and proprietary rights of Sideware, or has otherwise failed
to take reasonable steps to protect such confidentiality and
proprietary rights as required herein; and/or
(d) the Distributor is unable to pay its debts when due or is
insolvent, is ordered or adjudged to be a bankrupt, is
placed in the hands of a receiver, enters into any scheme or
composition with its creditors, is dissolved, liquidated or
wound up, makes an assignment for the benefit of its
creditors or takes the benefit of any statutory protection
for its debts.
13.2 Termination for Convenience - Either of the parties may in its
sole discretion terminate this Agreement at any time without cause on
sixty (60) days written notice to the other party, such termination to
become effective at the conclusion of such sixty (60) day period.
13.3 Consequences of Termination or Expiration - In the event of the
termination or expiration of this Agreement, the Distributor shall
have no further rights except those expressly granted by this section.
Upon termination or expiration of this Agreement, the Distributor
shall:
(a) cease all marketing, sale and distribution of the Software;
(b) at Sideware's option and at the Distributor's expense,
deliver to Sideware all of the Software held by the
Distributor for resale;
(c) refrained from stating or implying that the Distributor is
authorized to market, sell and distribute the Software;
(d) pay all amounts invoiced by Sideware notwithstanding that
such amounts may not yet be due to Sideware; and
(e) at Sideware's request, execute all such documents and do
such further acts and things which are necessary to assign
and transfer the Distributor's rights and obligations in any
and all agreements with ASPs and resellers, relating to the
Software to Sideware.
14.0 GENERAL
14.1 Notice - Any notice required or permitted to be given under this
Agreement shall be deemed to have been well and sufficiently given
only if delivered at the address of the other party herein before set
forth or to such other address as the other party may direct in
writing.
14.2 Modification - No amendment to or modification of this Agreement
shall be effective unless set forth in writing and signed by both
Sideware and the Distributor.
14.3 Further Assurances - The parties shall execute all such further
documents and do such further acts and things as are necessary or
convenient to carry out the full intent of this Agreement.
14.4 Successors and Assigns - This Agreement shall be binding upon and
shall enure to the benefit of the parties hereto, their successors and
permitted assigns.
14.5 Waiver - No waiver by either party of any default hereunder shall
be deemed as a waiver of any prior or subsequent default of the same
or other provisions of this Agreement.
14.6 Severability - If any provision hereof is held invalid or
unenforceable by a court of competent jurisdiction, such invalidity
shall not affect the validity or operation of any other provision and
such invalid provision shall be deemed to be severed from the
Agreement.
14.7 Assignability - The rights granted hereunder to the Distributor
may not be assigned by any act of the Distributor or by operation of
law without the consent of Sideware, such consent may be arbitrarily
withheld.
14.8 Governing Law - This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by,
the laws of the United States.
14.9 Entire Agreement - This Agreement constitutes the entire
understanding of the parties, and revokes and supersedes all prior
agreements between the parties and is intended as a final expression
of their agreement.
IN WITNESS WHEREOF the parties hereto have recorded their
agreement on the above terms, intending the Agreement to be effective
from January 1, 2001.
SIDEWARE INTERNATIONAL SRL SIDEWARE CORP.
Per: Per:
"signed" "signed"
----------------------------- -----------------------------
Authorized Signatory Authorized Sigantory
Dated: , 2001 Dated: , 2001
Schedule "A"
The Software
The Software is the Enterprise Interaction Suite (EIS) version 3.0 and
subsequent updates and new versions sold as an application service
provider product which consists of (a) instructions and statements in
machine-readable object code for the modules purchased, and (b) all
user manuals, handbooks, and other written materials relating to (a)
above.
Schedule "B"
Software Prices as of January 1, 2001
(all amounts in U.S. Dollars)
Enterprises Interaction Suite (EIS)
1. Collaboration, per copy U.S. $6,400
2. E-mail Resolution, per copy U.S. $2,560
3. Telephony, per copy U.S. $1,920
4. CSR Modules, per copy U.S. $200
Prices for updates and new versions to be announced.
3. If at any time after the commencement of this Agreement, either
of the parties undertakes a transfer pricing study with respect
to the Software Price and the results of the study indicate that
the Software Price should be adjusted to comply with the arm's
length requirement for "transactions" between related parties
(the "Proposed Adjustments"), the other party may agree to make
the Proposed Adjustments or reject the Proposed Adjustments
stating its reasons for rejecting the Proposed Adjustments.
After considering the other party's reasons for rejecting the
Proposed Adjustments, if any, the first party may propose Amended
Proposed Adjustments or obtain the opinion of an independent
third party expert on the matter. The other party shall:
(a) accept the Amended Proposed Adjustments; or
(b) reach some other agreement on the adjustments to the
Software Price within forty-five (45) days of receiving the
Amended Proposed Adjustments; or
(c) accept the opinion of the third party independent expert.
4. Where the Software Price is adjusted pursuant to paragraphs 2 or
3, the parties will make whatever payments or refunds are
required to fully implement the terms of the adjustment.
5. Each of the parties shall bear their own costs with respect to
any actions taken by a party under this section relating to
Software Price adjustment.