IDENTICA CORP. USA, INC FORM OF RESELLER AGREEMENT
IDENTICA
CORP. USA, INC
FORM
OF RESELLER AGREEMENT
This
Agreement is made this _____day
of
_________
between
Identica Corp. USA, Inc. (“Identica”) and Company name (“Reseller”)
TERMS
AND CONDITIONS
WHEREAS
Identica has exclusive rights to sell the Products within the Territory;
and
WHEREAS
Identica wishes to grant the Reseller a non-exclusive right to resell the
Products in the Territory (see “Schedule B”) under the terms and conditions
defined herein; and
WHEREAS
Reseller wishes to accept such right as a non-exclusive reseller;
NOW
THEREFORE in consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
Article
1. Definitions
In
this
Agreement except where the context otherwise requires, the following terms
and
expressions shall have the meanings respectively defined as
follows:
| 1.1 |
“Products”
shall mean those products described and listed in Schedule A.
|
| 1.2 |
“Territory”
means those areas identified in Schedule B.
|
| 1.3 |
“Manufacturer”
The
vascular pattern reader is made by Tech-Sphere Co. Ltd in Seoul Korea.
The
“smart card” card reader/writer control unit (Identica Universal
Controller) is manufactured by Identica Holdings
Corporation.
|
Article
2. Appointment and Acceptance
|
2.1
|
During
the term of this Agreement and subject to the terms and conditions
set
forth hereinafter, Identica hereby appoints Reseller as a non-exclusive
reseller to resell the Products in the Territory, and Reseller accepts
such appointment.
|
|
2.2
|
Reseller
shall not purchase, import, export, sell, distribute, advertise or
otherwise deal in the Territory with any other products which utilize
vascular technology to verify identity.
|
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
1
| 2.3 |
Reseller
shall not allow any individual and/or entity to sell, lease or otherwise
deal with the Products outside the Territory, unless Reseller has
the
prior written consent of Identica or a separate agreement has been
entered
into between Identica and Reseller that allows such selling, leasing
or
dealing with Products outside the
Territory.
|
| 2.4 |
Reseller
shall not be permitted to modify, customize, reconfigure or reverse
engineer the Products in any way other than modification of the any
computer based graphical user
interface.
|
Article
3. Orders and Shipments
| 3.1 |
Each
order placed by Reseller shall clearly describe the quantity and
type of Products required, and shall include all necessary instructions
for packaging, invoicing and shipping. The orders shall not be binding
unless and until they are accepted by Identica who shall be required
to
provide written notice to Reseller of its acceptance or rejection
of any
order within ten (10) days of receipt of such order. Identica will
make
its best efforts to accept all orders submitted by Reseller.
|
| 3.2 |
All
Products will be shipped to Reseller FOB Identica’s warehouse. Reseller
shall arrange shipping and insurance for each shipment and shall
be
responsible for all costs and expenses associated therewith. If Reseller
requests that Identica arrange for shipping and insurance of the
Products
then Identica shall obtain Reseller’s approval of shipping and insurance
costs prior to shipment and shall invoice Reseller for any costs
incurred.
Identica will not be responsible, in any form, for delayed shipments
once
they have left Identica’s
facilities.
|
Article
4. Price and Payment
The
price
of all Products sold to Reseller as well as payment terms shall be determined
in
accordance with Schedule C.
Article
5. Purchase of Demonstration Units
Reseller
agrees to purchase demonstration units as specified in Schedule D.
Article
6. Marketing
and Technical Assistance
| 6.1 |
Identica
shall
provide Reseller with materials that may be used by Reseller for
marketing
and promotion of the Products including, without limitation, brochures,
catalogs and specification sheets.
|
| 6.2 |
Identica
shall provide technical training to technicians of the Reseller as
specified in Schedule E.
|
| 6.3 |
Identica
shall supply all required technical and engineering information to
Reseller such as will allow Reseller to maintain and perform after-sale
service and maintenance on the
Products
|
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
2
Article
7. Spare Parts
Reseller
shall maintain a sufficient inventory of the spare parts in order to allow
it to
meet its service requirements with respect to the Products. Identica and
Reseller shall agree on the particular spare parts that are required for this
purpose.
Article
8. Product Warranty
| 8.1 |
Identica
shall warrant
that the Products will be free from defects in workmanship and materials,
under normal use, for one year from the date of original purchase
by end
users from Reseller. If any Product or part thereof is found to be
defective in any way or does not operate in compliance with the relevant
specifications, Reseller shall return to Identica such Product or
part
thereof together with a full written description of the defect. Identica
shall reimburse Reseller for any shipping costs cost so incurred
and shall
ship to Reseller at Identica’s expense a replacement Product or part
thereof. Identica shall have no liability or obligation in connection
with
such Product or part thereof other than the obligation to replace
such
Product or part thereof.
|
| 8.2 |
Manufacturer’s
warranty pursuant to Article 8.1 does not extend to any Product defect
caused by (1) incorrect installation or placement of Products not
conforming to the Product specifications, (2) misuse, neglect, abuse
or
accidental damage caused by Reseller or its customers, (3) improper
repair, alteration or modification of any Product by Reseller or
its
customers, or (4) use in violation of instructions furnished by Identica
or the manufacturer of the Product.
|
Article
9. Forecasts and Reports
Reseller
shall provide forecasts of its product requirements and reports of its sales
activities as detailed in Schedule F.
Article
10.
Proprietary Rights
| 10.1 |
Reseller
acknowledges that Identica or the manufacturer of the Products is
the
owner of any and all intellectual property with respect to the Products,
including, without limitation, trademarks, trade names, designs,
copyrights, know-how and patents used on or for, or otherwise embodied
in
the Products ("Proprietary Rights"). Nothing in this Agreement shall
be
deemed to transfer any right, title or interest in the Proprietary
Rights
to Reseller. Upon termination of this Agreement for any reason, Reseller
shall cease presenting itself as a reseller of the Products and cease
using any of the Proprietary
Rights.
|
| 10.2 |
Reseller
shall not alter, deface, remove, cover or mutilate in any manner
the
trademarks, serial or model numbers, brand names of the Products
or the
manufacturer’s name attached or affixed to any of the
Products.
|
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
3
| 10.3 |
In
all of its sales and marketing activities in the Territory as well
as in
all marketing materials, brochures and catalogs Reseller shall clearly
identify the manufacturer as the original manufacturer of the Products.
Reseller shall obtain prior written approval from Identica (including
electronic mail as a valid approval method) for any and all marketing
materials designed and prepared by Reseller for the marketing and
distribution of the Products.
|
| 10.4 |
Reseller
shall immediately report to Identica any infringement or improper
or
unauthorized use of Manufacturer’s Proprietary Rights in the Territory
which come to Reseller’s attention.
|
Article
11. Status of Reseller
| 11.1 |
This
Agreement shall not be deemed in any way to create the relationship
of
principal and agent between Identica and Reseller; and under no
circumstances shall Reseller be considered to be the agent of Identica.
Reseller shall not act or attempt to act, or present itself, explicitly
or
implicitly, as an agent of Identica. Reseller shall not in any manner
assume or make, or attempt to assume or make, any obligation, liability,
representation, warranty or guarantee on behalf of, or in the name
of
Identica.
|
| 11.2 |
Reseller
shall at all times comply with all applicable laws, regulations,
and
orders of any government of the Territory or political subdivisions
thereof relating to or in any way affecting this Agreement and Reseller's
performance hereunder, including obtaining of any required licenses,
permits or approvals to perform Reseller’s obligations under this
Agreement.
|
| 11.3 |
Reseller
shall not disclose to any third party, without the prior written
consent
of Identica, or use for any purpose other than the performance of
its
obligations under this Agreement, any confidential information concerning
the Products or information concerning the business affairs of Identica
or
the contents of this Agreement (including, but not limited to, prices,
discounts, terms and conditions) which it receives directly or indirectly
from Identica, or which it acquires or develops in the course of
its
transactions with Identica.
|
| 11.4 |
Reseller
agrees that it shall at no time communicate directly with the manufacturer
of the Products and shall deal only with Identica in connection with
any
matter arising out of this
Agreement.
|
Article
12.
Term
This
Agreement shall become effective upon signing and shall continue for
an
indefinite period unless terminated on 90 days written notice by either party
hereto or earlier as provided in Article 13.
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
4
Article
13. Termination
| 13.1 |
In
the event that either of the parties to this agreement commits a
material
default or breach any of the provisions of this Agreement the other
party
shall have the right to terminate this Agreement by giving thirty
(30)
days written notice, provided, however, that if within thirty (30)
days
after receipt of said notice the defaulting or breaching party cures
the
said default or breach, then said termination notice shall be
cancelled.
|
| 13.2 |
Notwithstanding
Article 13.1, Identica shall have the right to terminate this Agreement
upon immediate written notice upon the occurrence of any one of the
following:
|
|
(a)
|
Reseller
is declared bankrupt or insolvent, or is managed by a receiver, assignee
or trustee, whether by voluntary act of the said party or otherwise;
|
|
(b)
|
Reseller
assigns or attempts to assign this Agreement or any rights hereunder
without the written consent of Identica, such consent not to be
unreasonably withheld;
|
|
(c)
|
Reseller
ceases to function as a going concern or to conduct its operations
in the
normal course of business.
|
|
(d)
|
Reseller
is acquired by, or acquires, in whole or in part, a manufacturer
or
distributor of products which in the reasonable judgment of Identica
competes to a material extent with the
Products.
|
| 13.3 |
Upon
termination of this Agreement pursuant to Article 13.2 Reseller shall
immediately return all Products in its possession to Identica for
a full
credit and any amounts still owed to Identica by Reseller shall become
immediately due and payable. Any amounts owed to Reseller will be
paid
within 30 days of termination.
|
Article
14. Force Majeure
| 14.1 |
Neither
party shall be liable to the other party for nonperformance or delay
in
performance of any of its obligations under the Agreement due to
war,
revolution, riot, strike or other labor dispute, fire, flood, acts
of
government or any other causes reasonably beyond its control. Upon
the
occurrence of such condition the party that is unable to perform
its
obligations under this Agreement due to the occurrence of such force
majeure condition shall immediately notify the other party thereof.
Immediately after such conditions are removed or cured, such notifying
party shall perform its obligation promptly unless such force majeure
conditions made such performance permanently
impossible.
|
Article
15.
Governing Law
This
Agreement shall be interpreted and governed by the laws of the State of Florida,
USA.
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
5
Article
16. Jurisdiction
With
respect to any judicial proceeding, without limitation, any claim, litigation
and hearing, arising out of this Agreement, the parties shall submit to the
exclusive jurisdiction of the courts
of
the State of Florida, USA.
Article
17.
Miscellaneous Provisions
17.1
Notices
Any
notice required or permitted shall be in writing, and may be given by personal
service, registered mail, or facsimile. The other party shall confirm the
receipt of such notice in writing by personal service, registered mail, or
facsimile. Notices and confirmations should be addressed to the parties hereto
as follows;
17.2
Entire Agreement and Amendments
This
Agreement constitutes the entire understanding of Identica and Reseller with
respect to the subject matter hereof. No amendment, modification or alteration
of any term of this Agreement shall be binding on either party unless the same
shall be made in writing and executed by or on behalf of the parties
hereto.
17.3
No Assignment and Succession.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors. No assignment of this Agreement by Reseller
shall be valid without the prior written consent of Identica.
17.4
Waiver
All
waivers hereunder must be in writing, and the failure of any party at any time
to require the other party's performance of any obligations under this Agreement
shall not affect the right of such party to require subsequently the performance
of the obligation of such the other party. Any waiver of any breach of any
provision of this Agreement shall not be construed as a waiver of any continuing
or succeeding breach of such provision or a waiver or modification of the
provision.
17.5
Severability
If
any
one or more of the provisions contained in this Agreement shall be declared
invalid, illegal or unenforceable in any respect under any applicable law,
in
whole or in part, the validity, legality and enforceability of the remaining
provision or portion of a provision shall not in any way be affected and be
valid and enforceable. In such case the parties hereto oblige themselves to
reach the intended purpose of the invalid provision by a new, valid and legal
stipulation.
17.6
Headings.
The
section headings herein are intended for purpose of convenience only and any
shall not affect the construction or interpretation of any of the provisions
of
this Agreement.
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
6
17.7
Facsimile delivery
The
parties may sign and deliver this Agreement by facsimile transmission. Each
party agrees that the delivery of the Agreement by facsimile shall have the
same
force and effect as delivery of original signatures and that each party may
use
such facsimile signatures as evidence of the execution and delivery of the
Agreement by all parties to the same extent that an original signature could
be
used.
17.8
Indemnification
Reseller
hereby agrees to indemnify, defend and hold harmless Identica, its directors,
officers, employees and agents from and against all losses incurred by Identica,
its directors, officers, employees and agents based upon, arising out of or
otherwise incurred in respect of any breach by Reseller of its obligations
under
this Agreement.
17.9
Survival
Articles
8.1, 8.2, 10.1, 10.2, 11.3, 13.3, 15, 16 and 17.8 shall survive the termination
of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective duly authorized officers.
RESELLER: ‘”RESELLER’S
FORMAL NAME”
Per:
___________________________________
Name:
Title:
………………………………………….......
Address:
…………………………………………
………………………………………....................
Phone
#:
…………………………………………
Fax
#:
…………………………………………....
Email:
……………………………………………
IDENTICA
CORP USA, Inc.
Per:
Name:
▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
7
SCHEDULE
A
PRODUCTS
The
products to be supplied to Reseller under this Agreement are biometric products,
software, hardware and custom development services which utilize hand vascular
patterns to verify the identity of persons as listed below:
Techsphere
Scanners and Bundles:
VP-II
S
VP-II
S
UC-2 Bundle
VP-II
S
UC-2 Integrated Proximity Reader Bundle
VP-II
M Networking Components:
Internal
Module
T-Module
UC-2
IONcontrol
Software:
IONcontrol
Basic
IONcontrol
Professional
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
8
SCHEDULE
B
TERRITORY
The
Territory shall be limited to the following: USA
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
9
SCHEDULE
C
PRICING
|
PRODUCT
DESCRIPTION
|
SUGGESTED
LIST
PRICE
|
MINIMUM
SALES
PRICE
|
VOLUME
|
LEVELS
|
CUMULATIVE
|
SALES
|
|
|
*
|
*
|
*
|
*
|
||||
|
Techsphere
Scanners
|
|||||||
|
VP-II
S
|
*
|
*
|
*
|
*
|
*
|
*
|
|
|
VP-II
S UC- Bundle
|
*
|
*
|
*
|
*
|
*
|
*
|
|
|
VP-II
S Proximity Bundle
|
*
|
*
|
*
|
*
|
*
|
*
|
|
|
Networking
Components
|
|||||||
|
Internal
Module
|
*
|
*
|
*
|
*
|
*
|
*
|
|
|
T-Module
|
*
|
*
|
*
|
*
|
*
|
*
|
|
|
UC-2
|
*
|
*
|
*
|
*
|
*
|
*
|
|
|
IONcontrol
Software
|
|||||||
|
IONcontrol
Basic
|
*
|
*
|
*
|
*
|
*
|
*
|
|
|
IONcontrol
Professional
|
*
|
*
|
*
|
*
|
*
|
*
|
|
|
EFFECTIVE:
JULY 5, 2006
|
|||||||
|
PRIVATE
and CONFIDENTIAL
|
|||||||
2.
Payment Terms
Reseller
shall pay 50% of the total purchase price for any order upon delivery. The
balance of the purchase price will be due within 30 days after date of
delivery.
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
10
SCHEDULE
D
INITIAL
ORDER AND PURCHASE OF DEMONSTRATION UNITS
Reseller
shall purchase a minimum of One VP-II S UC-2 Integrated Proximity Reader Bundle
with wireless and case within [*] days of the signing of this Agreement to
be
used for demonstration and training purposes * to the applicable Reseller Price
listed in Schedule C.
“RESELLER”
and Identica will determine the joint marketing commitments required to promote
Identica’s products effectively:
i) Press
Releases.
ii) Seminars
and Conferences.
iii) Web
Sites presence and cross links.
iv) Internal
Sales and Technical presentations and training.
v) Development
of Business, Sales Plans and Forecasts and ongoing review
process.
vi) Appropriate
literature.
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
11
SCHEDULE
E
TRAINING
OF RESELLER’S PERSONNEL
Identica
shall provide technical [and sales] to Reseller’s
personnel either at Identica’s
or
Reseller’s
facilities, such training to include the provision of all required instruction
and information with respect to the features, operation, installation,
maintenance and servicing of the Products. Training will be provided free of
charge at Identica facilities in Toronto, Canada for up to 6 employees of
reseller.
Reseller
will pay all travel, hotel, meal and associated costs should training be
provided at Resellers premises or any location other than Identica
facilities.
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
12
SCHEDULE
F
FORECASTS
AND REPORTS
|
1.
|
Within
[90]
days of the execution of this Agreement Reseller shall provide to
Identica
a forecast of the volume of products it expects to sell by quarter
during
the following [12]
months and shall thereafter update such forecast on a quarterly
basis.
|
|
2.
|
Reseller
shall provide quarterly reports to Identica regarding general market
conditions in the Territory, Product sales, Product inventory and
such
other information as Identica may reasonably
request.
|
| 3. |
In
order to avoid any channel conflict with other resellers of Distributor
in
the Territory Reseller shall communicate/register all qualified
sales
opportunities in the Territory with Identica, addressed to the
attention
of VP Sales and Marketing.
|
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
13
SCHEDULE
G
PRODUCT
MAINTENANCE PROVISIONS
If
the
Agreement is to include provision for an “ongoing/extended maintenance/warranty
contract” and./or “technology obsolescence replacement contract” then this will
be negotiated and referred to in Schedule G
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
14
SCHEDULE
H
LEASING
PROGRAM
Not
applicable.
IDENTICA
CORP. USA, INC. - Confidential Initials____,_____
15