ADVANCED ID CORPORATION
AUTHORIZED DISTRIBUTOR AGREEMENT
This Authorized Distributor Agreement, along with any written purchase
orders ("Purchase Orders") executed hereunder (collectively, the
"Agreement") made this 6th day of January, 2004, by and between Trace
Australia Pty Ltd. (a Victoria corporation) having the principal
address of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
(hereinafter collectively called DISTRIBUTOR) and Advanced ID
Corporation (a South Dakota corporation) having a principal address at
▇▇▇▇ - ▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ #▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(hereinafter called 'AID').
WHEREAS AID manufactures supplies and/or licenses certain radio
frequency identification ("RFID") products, software (the "Software"),
equipment and services (hereinafter collectively called "PRODUCTS");
WHEREAS, Distributor desires to partner and team with AID to market,
promote and promulgate said PRODUCTS throughout the TERRITORY (as
defined) for the parties mutual benefit; and
WHEREAS, Distributor proposes and desires to use its best efforts and
resources to actively promote remarket, resell and/or sublicense said
PRODUCTS to end-users in the TERRITORY.
NOW, THEREFORE, in consideration of the terms, mutual promises and
agreements contained herein, the parties to hereby agree as follows:
Distributor License Terms
1.1 AID hereby grants, and DISTRIBUTOR accepts, a limited, non-
transferable, revocable license to resell, support and sublicense the
PRODUCTS in accordance with the terms and conditions of this Agreement
and solely within the TERRITORY. The "TERRITORY" shall consist of the
specific geographic area detailed in Appendix C attached hereto. The
TERRITORY may be revised by the agreement of both parties or by
necessity. If by necessity, changes to the definition of TERRITORY
should be effectuated by delivering a written Notice (as defined) to
that effect either by hand delivery or via mail; such Notice to be
delivered at least sixty (60) days before such revision is to take
affect.
The resale support and/or sublicensing of the PRODUCTS shall only be
done by use of a Software Sublicense and Product Sales Agreement (the
"Sales Agreement") between DISTRIBUTOR and the purchasing entity in the
TERRITORY (the "Purchaser(s)"). Such Sales Agreement to include
substantially similar terms and conditions as those detailed and
attached hereto as Appendix A, with no less protection of AID
intellectual property than is afforded thereby.
Purchase Commitments, Pricing, Marketing, Sales and Support
Purchase Commitment
The RESELLER hereby commits to purchase order and pay for, at a
minimum, the following amounts of PRODUCTS from AID in accordance with
the corresponding timelines:
To be mutually agreed upon by both parties. (U.S. $T.B.D.) of PRODUCTS
from AID before Year One (hereinafter "Contract Period One").
To be mutually agreed upon by both parties. (U.S. $T.B.D.) of PRODUCTS
from AID between Year One and Year Two (hereafter "Contract Period
Two").
To be mutually agreed upon by both parties. (U.S. $T.B.D.) of PRODUCTS
from AID between Year Two and Year Three (hereafter "Contract Period
Three").
Pricing
The DISTRIBUTOR may purchase PRODUCTS (and any required licenses
thereto) of AID at the prices and upon the terms and conditions
specified in the price lists and bulletins published by AID, which
price lists and bulletins may be revised from time to time by AID upon
notice to DISTRIBUTOR. The DISTRIBUTOR will be accorded such discounts
or terms and conditions as the parties may from time to time mutually
agree upon.
The parties agree that DISTRIBUTOR shall use Purchase Orders to
purchase PRODUCTS (and any required licenses thereto) from AID. A
Purchase Order, when signed by both parties, may contain terms and
conditions mutually agreed upon by the parties that may supersede the
terms and conditions of this Agreement for the specific sale of
PRODUCTS (and any required licenses thereto) that the Purchase Order
covers, however, Purchase Orders shall not amend this Agreement unless
expressly designed to. Unless otherwise specified in a Purchase Order,
payments thereon shall be net thirty (30) days from the invoice date,
with a two percent (2%) discount applied to all payments received
within 10 days of the invoice date.
DISTRIBUTOR shall be solely responsible for the pricing extended to,
the invoicing of and collection of payment from the Purchaser. Nothing
in this Subsection 2.2.3 shall be construed to condition payment to AID
under a Purchase Order on the payment from a Purchaser to DISTRIBUTOR.
Marketing, Sales and Support Provisions
The DISTRIBUTOR agrees to use its best efforts to promote, re-market,
resell and/or sublicense the PRODUCTS to the Purchasers in the
TERRITORY, and periodically provide AID with written progress reports
on such efforts in a format that is prescribed by and acceptable to
AID.
The DISTRIBUTOR agrees to pay all of its expenses incurred in the
performance of this Agreement, provided, however, that AID may
reimburse the DISTRIBUTOR, at AID sole discretion, for certain expenses
previously approved in writing.
AID agrees to cooperate with and assist where it can in DISTRIBUTOR'S
promotions, marketing, sales and sublicensing efforts. AID will use
commercially reasonable efforts to provide non-warranty technical
assistance by telephone, (8:00 am to 5:00 pm, United States Mountain
Time, Monday through Friday, excluding holidays) at a rate of USD $100
per hour. Additionally, AID agrees to use commercially reasonable
efforts to provide, on-site technical support at a rate of USD $100 per
hour, plus expenses.
AID agrees to provide DISTRIBUTOR with one English version of the
Operation and Set-up Manual for the PRODUCT (the "Manual"), and
DISTRIBUTOR agrees to provide for and exercise the same intellectual
property protection that AID does for its publications and shall not
remove any copyright, trademark or patent notices affixed to the Manual
by AID.
Confidential Information
Each party hereby acknowledges that it may receive confidential
information of the other party including without limitation, software,
computer programs, correspondence, copies of invoices, lists of
customers, specifications, flow charts, marketing plans, financial
information, business plans and procedures, the terms of this
Agreement, employee information, and other sensitive information
relating the other party's business under this Agreement or otherwise
(hereinafter referred to as "Confidential Information"). Confidential
Information does not include (I) information independently developed by
the recipient without reference to the other party's Confidential
Information; (ii) information in the public domain through no wrongful
act of the recipient, or (iii) information received by the recipient
from a third party who was rightfully in possession of such information
and had no obligation to refrain from disclosing it.
With respect to the other party's Confidential Information, and except
as expressly authorized herein or as required by law, the recipient
hereby agrees that during the term hereof, and at all times thereafter,
it shall not use, commercialize or disclose such Confidential
Information to any person or entity, except to its own employees having
a "need to know" and to such other recipients as the other party may
approve in writing. In no event shall either party attempt to
decompile, disassemble or reverse engineer the other party's
Confidential Information and any information discovered thereby shall
also be treated as Confidential Information belonging exclusively to
the other party. Each party shall use at least the same degree of care
in safeguarding the other party's Confidential Information as it uses
in safeguarding its own Confidential Information, but in no event shall
less than reasonable diligence and care be exercised. Upon termination
of this Agreement, each party agrees to return to the other party, all
originals and copies of such Confidential Information of the other in
their possession.
Acceptance of Orders
AID MAY UPON FIFTEEN (15) DAYS notice and in good faith, decline to
accept any order placed by DISTRIBUTOR. Additionally, AID expressly
reserves the right to discontinue the production, development, sale or
licensing of some, any or all the PRODUCTS, and, in its sole
discretion, to allocate some, any or all its' PRODUCTS during periods
of shortages.
The DISTRIBUTOR anticipates that it may incur certain extraordinary
expenses involved with its efforts to introduce AID and the PRODUCTS in
the TERRITORY. In recognition of this, AID hereby agrees that, for the
duration of this Agreement it will not directly or indirectly solicit,
or offer the PRODUCTS to any Purchaser that DISTRIBUTOR sold any
PRODUCTS to; Purchaser, for purposes of this Subsection 4.2, shall be
limited in definition to include only the division and/or business
group of the entity to which DISTRIBUTOR sold PRODUCTS.
It is expressly understood and agreed that in its performance
hereunder, the DISTRIBUTOR shall act independently of AID, and, with
the limited exception of the license to subcontract certain of the
PRODUCTS under the Sales Agreement, shall not have the power to bind
AID in any manner, nor enter into any contract by or on behalf of AID.
The DISTRIBUTOR covenants and agrees not to hold itself out as, or
represent it to be an agent or employee of AID.
5. Representations and Warranties
Representations and Warranties of AID
AID warrants that it has clear title to the PRODUCTS.
AID warrants that any hardware, as provided with the PRODUCTS, complies
with industry standards.
All AID rates and fees are exclusive of any applicable sales, uses,
value-added, or other federal, state or local taxes, or any import
duties or tariffs imposed on the subject matter or transactions under
this Agreement, and DISTRIBUTOR shall be responsible for all such
taxes, duties and tariffs, except that AID shall be responsible for any
corporate franchise taxes imposed on AID by law and for any taxes based
on its net income or gross receipts.
THE WARRANTIES AND LIMITATIONS SET FORTH IN THIS SUBSECTION 5.1
CONSTITUTES THE ONLY WARRANTIES OF AID WITH RESPECT TO ANY OF THE
PRODUCTS, THE SOFTWARE OR THEIR SUPPORT. SUCH WARRANTIES ARE IN LIEU
OF, AND AID HEREBY DISCLAIMS, ALL OTHER WARRANTIES, STATUTORY OR
OTHERWISE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. IN ADDITION, UNDER NO CIRCUMSTANCES SHALL AID BE LIABLE FOR
ANY SPECIAL, INCIDENTIAL, INDIRECT, STATUTORY, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES, OF ANY KIND WHATSOEVER, OR FOR ANY LOST PROFITS,
BUSINESS OR REVENUE, LOSS OF USE OR GOODWILL, OR OTHER LOST ECONOMIC
ADVANTAGE, ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE BREACH
HEREOF, WHETHER SUCH CLAIMS ARE BASED ON BREACH OF CONTRACT, STRICT
LIABILITY, TORT, ANY FEDERAL OR STATE STATUTORY CLAIM, OR ANY OTHER
LEGAL THEORY, EVEN IF AID KNOW, SHOULD HAVE KNOWN, OR HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION SHALL
SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT
IS DETERMINED TO HAVE FAILED ITS ESSENTIAL PURPOSE.
Representations and Warranties of DISTRIBUTOR
The DISTRIBUTOR represents and warrants that it is a Victoria
corporation, in good standing with that Country and has the necessary
governmental approvals to conduct business in the TERRITORY.
The DISTRIBUTOR represents and warrants that it is not in violation of
any order, judgment, injunction, award or decree binding upon it which
violation, individually or in the aggregate, would have a material
adverse effect to any of the terms and conditions of this Agreement.
The DISTRIBUTOR also represents and warrants that it has to the best of
its ability to date, and from hence forth shall comply, and will
continue to comply in all material respects with all international,
federal, state and local and/or foreign laws, ordinances, rules,
regulations and orders (collectively, the "Laws") applicable to the
conduct of its business or the ownership of its assets and properties,
both in the United States and in all of the sovereign nations and
territories of the TERRITORY, if any. DISTRIBUTOR further represents
and warrants that there are no outstanding citations, fines or
penalties that have been imposed or asserted against DISTRIBUTOR for
any violation or alleged violation of the above referenced Laws.
DISTRIBUTOR represents and warrants that it is (and since the date of
its formation has been) and shall continue to be in compliance with and
current in the payment of all required international, federal, state,
county, local, foreign, and other taxes, including, without limitation,
income taxes, estimated taxes, excise taxes, sales taxes, use taxes,
gross receipts taxes, franchise taxes, employment and payroll related
taxes, withholding taxes, property taxes and import and export duties,
whether or not measured in whole or in part by net income and all
deficiencies, or other additions to tax, interest and penalties
(hereinafter, "Taxes" or, individually, a "Tax"). DISTRIBUTOR does not
know of any Tax deficiency or claim for additional Taxes or interest
thereon or penalties in connection therewith, asserted or threatened to
be asserted against DISTRIBUTOR by any taxing authority. Except as
provided for in Subsection 5.1.3 DISTRIBUTOR represents and warrants
that it alone shall be responsible for all such Taxes associated with
this Agreement.
DISTRIBUTOR represents and warrants that it currently has in full force
and effect, will continue to have in full force and effect and shall
obtain when necessary all licenses, permits, franchises, orders or
approvals of any governmental entity that are required for the
operation of DISTRIBUTOR'S business and/or the use, sale and/or
licensing of the PRODUCTS as contemplated by this Agreement, with such
exceptions as would not have, individually or in the aggregate, a
material adverse effect on the terms and conditions hereof. All
personnel of DISTRIBUTOR also have material licenses, permits,
franchises, orders or approvals of any governmental entity and from any
professional organization that are required for the operation of
DISTRIBUTOR'S business and/or the use, sale and/or licensing of the
PRODUCTS as contemplated by this Agreement, with such exceptions as
would not have, individually or in the aggregate, a material adverse
effect on the terms and conditions hereof (collectively, with the items
in the previous sentence, "Permits"). Any violation based on the
absence or deficiency of a Permit, including any required by the Bureau
of Export Administration ("BXA") in the U.S. Department of Commerce,
for any of the PRODUCTS shall be the sole responsibility of the
DISTRIBUTOR.
Further, and not in preclusion of any other subsection under this
Subsection 5.2 or elsewhere, DISTRIBUTOR represents and warrants that
it will, at its own expense, comply with all applicable United States
and foreign laws and regulations applicable to DISTRIBUTOR in the
exercise of its rights and obligations under this Agreement. More
specifically, DISTRIBUTOR shall comply fully with any and all
governmental laws, statutes, ordinances, administrative orders, rules
or regulations having any and all relation to its duties under this
Agreement, and shall procure all licenses and pay all fees and other
charges required thereby. DISTRIBUTOR shall not, nor shall
DISTRISBUTOR authorize or permit its employees, agents, or otherwise
to, export or re-export any of the PRODUCTS, any of AID Confidential
Information or any of AID proprietary property in any form, in whole or
in part, to any country specified as a prohibited destination in
applicable international, federal, state and local laws, regulations
and ordinances, including the Regulations of the U.S. Department of
Commerce (including, but not limited to, the rules and regulations
governing exports of encryption technology in software as administered
by the BXA in the U.S. Department of Commerce under the Export
Administration Regulations and/or the U.S. State Department, without
first obtaining any requisite U.S. government approvals by application
made through AID. This Subsection 5.2.5 shall remain in effect beyond
the termination or expiration of this Agreement and shall apply to
DISTRIBUTOR'S successors and assigns, if any. Any violation by
DISTRIBUTOR of any governmental export, import or any of the Laws will
be considered a material breach of this Agreement.
Indemnifications
By AID
AID will indemnify, defend and hold harmless DISTRIBUTOR from all costs
and expenses (including reasonable attorneys' fees and court costs)
arising from a third party claim against DISTRIBUTOR based on an
actual:
Material breach of AID'S representations and warranties:
Acts or omissions constituting gross negligence or willful misconduct,
committed by AID.
Failure by AID to comply with applicable governmental laws and
regulations; or
Subject to Subsection 5.1.4, infringement by AID of any United States
patent, United States copyright, United States trademark, United States
trade secret or other United States intellectual property right.
This Section 6.1 shall not apply to claims arising as a result of
DISTRIBUTOR'S improper use, sale or sublicensing of AID PRODUCTS.
By DISTRIBUTOR
DISTRIBUTOR will indemnify, defend and hold harmless AID from all costs
and expenses (including reasonable attorney's fees and court costs)
arising from a third party claim against AID based on an actual or
alleged:
Failure by DISTRIBUTOR to perform its obligations under the Agreement,
unless such failure is a direct result of an action by AID;
Breach of DISTRIBUTOR'S representations and warranties;
Act or omission constituting gross negligence or willful misconduct,
committed by DISTRIBUTOR;
Failure by DISTRIBUTOR to comply with any and all applicable
governmental laws and regulations;
Infringement by DISTRIBUTOR (or any property or data provided by
DISTRIBUTOR with the PRODUCTS) of any patent, copyright, trademark,
trade secret or other intellectual property right of a third party or
parties; OR
Infringement by AID of any patent, copyright, trademark, trade secret
or other intellectual property right of a third party or parties due to
the misuse and/or improper sale or licensing of any of the PRODUCTS.
6.3 If a claim covered under this Section 6 appears likely or is
made, the party against whom the claim is made will promptly provide
the other party with Notice of such claim.
Term of Agreement and Notice of Breach
Term of Agreement
This initial term of this Agreement shall be for twelve (12) months,
and such term will automatically renew for additional twelve (12) month
periods unless one party gives Notice to the other of its intention not
to renew sixty (60) days before the expiration of the initial term or
any renewal term.
In the event of a breach of the Agreement, the non-breaching party may
terminate this Agreement by written Notice, such termination to take
affect not less than fifteen (15) days from the date of Notice unless
the breaching party cures the breach to the reasonable satisfaction of
the non-breaching party.
This Agreement may be terminated at any time, with or without cause, by
either party hereto, by written Notice given to the other party not
less than sixty (60) days prior to the effective date of such
termination.
Non-Compete
The DISTRIBUTOR agrees that during the period of this Agreement, and
for a period of two (2) years after the termination hereof, the
DISTRIBUTOR will not, directly or indirectly, market, promote,
promulgate, transmit, accept orders for, license or otherwise sell
products, services, equipment, software licenses or otherwise
manufactured and/or provided by any other third party that may be
competitive with the PRODUCTS or any commercial offering of AID.
Non-Solicitation
Except as provided under the Agreement, party shall not directly or
indirectly solicit or offer employment to, or directly or indirectly
accept services, by an employee or contractor of the other party,
during the term of the Agreement and for one (1) year thereafter,
without the prior written consent of the other party. For purposes of
the Agreement, use of general employment advertising and independent
employment agencies, if not directed at one or more of the other
party's employees, shall not constitute solicitation.
Miscellaneous
Notices
Except as separately provided for or required herein, any notice or
other communication required or permitted hereunder ("Notice") shall be
in writing and shall be delivered personally, telegraphed, telexed, and
sent by facsimile transmission with confirmation retained or sent by
certified, registered or express mail, postage prepaid. Any such
Notice shall be deemed given when so delivered personally, telegraphed,
telexed or sent by facsimile transmission with confirmation retained
or, if mailed, three days after the date of deposit with the United
States Postal Service, as follows:
If to AID to:
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, President & CEO
Address: ▇▇▇▇ - ▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ / Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to a DISTRIBUTOR:
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Tel. ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇
Entire Agreement
This Agreement (including the Appendices), any Purchase Orders executed
in connection hereto and any collateral agreements executed in
connection with the consummation of the transaction contemplated
herein, contain the entire agreement among the parties with respect to
subject matter hereof and supersedes all prior agreements, written or
oral, with respect thereto.
Waivers and Amendments: Non-Contractual Remedies; Preservation of
Remedies
This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written
instrument signed by the parties or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any waiver on the part of any party of any
such right, power or privilege, nor any single or partial exercise of
any such right, power or privilege, preclude any further exercise
thereof or the exercise of any other such right, power or privilege.
The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies that any party may otherwise have
at law or in equity except where this Agreement expressly provides
otherwise.
Force Majeure
A party shall be relieved from an obligation (other than the obligation
to make payments or an obligation relating to proprietary rights or
confidentiality) while a cause, outside of its reasonable control, and
that it cannot reasonably circumvent, prevents the performance of such
obligation.
Governing Law
This Agreement shall be governed and construed in accordance with the
laws of the state of South Dakota in the United States, exclusive of
its choice of law rules.
Binding Effect: Assignment
This Agreement shall be binding upon and inure to the benefit of the
parties of their respective successors to rights and assets, as well as
any legal representatives. This Agreement is not assignable except (i)
for DISTRIBUTOR, with prior written consent of AID, such consent not to
be unreasonably withheld; (ii) by operation of law; (iii) by AID to any
of its affiliates; or (iv) in connection with the merger, consolidation
or sale of all or substantially all of its business or assets of AID.
Counterparts
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and
the same instrument. Each counterpart may consist of a number of
copies hereof each signed by less than all, but together signed by all
of the parties hereto.
Appendices and Exhibits
The Appendices, Exhibits and any future Purchase Orders executed in
connection herewith are a part of this Agreement as if fully set
herein. All references herein to Sections, subsections, clauses,
Appendices, Exhibits and/or Purchase Orders shall be deemed references
to such parts of this Agreement, unless the context shall otherwise
require.
Headings and Severability
The headings of this Agreement are for reference only, and shall not
affect the interpretation of this Agreement. If any provision of the
Agreement is held to be unenforceable, all remaining provisions shall
remain in full force and effect.
Media Release and Public Disclosure
AID and DISTRIBUTOR agree that any public disclosure of the existence
of this Agreement and the subsequent product launches and major media
events will be made by mutual consent in writing.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the date first above written.
ADVANCED ID CORPORATION TRACE AUSTRALIA PTY LTD.
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President & CEO Title: Director
Address: ▇▇▇▇ - ▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇ Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ 3206
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Appendix A
Software Sublicense and Product Sales Agreement
This Agreement is entered into by and between Trace Australia Pty Ltd.
(Distributor) (a Victoria corporation) having a principal address of
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and
__________________________________(Customer). Customer and Distributor
agree to the following terms and conditions:
License Grant: Distributor hereby grants to Customer a perpetual, non-
transferable, non-exclusive sublicense to use the computer program and
user documentation listed in Exhibit A (the "Software"). Customer may
use the Software for the limited number of concurrent users, staff
members and servers for which it has paid the license fee set forth in
Exhibit A. If Customer needs additional copies or expended use of the
Software, Distributor will provide such at its published rate. Neither
Customer, nor any employee, agent, partner, subsidiary or parent of
Customer, may decompile, disassemble or reverse engineer the Software.
Products: Distributor will provide to Customer the products and
services listed in the Order Form (attached as Exhibit B) in such
quantities and types stated in Exhibit B (the "Products").
Deliverables: Distributor will provide Customer with one copy of the
Software and its user guide. Customer may not copy the Software or
user guide except to make one copy of the Software for backup purpose
only. Distributor will provide Customer with the number and types of
Products set forth in the Order Form.
Confidentiality:
Acknowledgment of Trade Secrets. Customer acknowledges that the
Software and Products contain valuable trade secrets and confidential
information owned by Advanced ID Corporation (AID), a U.S Corporation,
having a principal address at ▇▇▇▇ - ▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (the "Licensor"), including but not limited to
the development status of the Software and Products, the functionality
of the Software and Products, the appearance, content and flow of the
Software's screens, the method and pattern of user interaction with the
Software and Products, the content of the Software's Products'
documentation, the Products' external and internal designs and
schematics, and appearance and content of the Products.
Restrictions. Customer agrees that Customer and its employees shall
not, directly or indirectly (i) sell, lease, assign, sublicense or
otherwise transfer; (ii) duplicate, reproduce or copy; (iii) disclose,
divulge or otherwise make available to any third party; (iv) use except
as authorized by this Agreement; or (v) decompile, disassemble, reverse
engineer or otherwise analyze for any purposes the Software and/or
Products, including all trade secrets, copyrights, patents and other
confidential information therein. Customer shall take all reasonable
precautions to prevent inadvertent disclosure of the Software,
including all trade secrets, copyrights, patents and other confidential
information therein.
No Disclosure to Third Parties. Without in any way limiting Subsection
4.2, Customer specifically acknowledges and agrees that it shall not
permit any third party, nor any employee, representative or agent
thereof, that develops, markets or licenses computer programs with
functionality similar to the functionality of the Software and Products
to have access to the Software and Products or to any trade secrets,
copyrights, patents and other confidential information therein.
Equitable Remedy. Because of the unique nature of the information
under this Section 4, the Parties understand and agree that Licensor
will suffer irreparable harm in the event that Customer breaches its
obligations under this Section 4 in that monetary damage will not be
adequate to compensate Licensor for such a breach. Accordingly,
Customer agrees that Licensor and or Distributor will, in addition to
any other remedies available to it at law or equity, be entitled to
injunctive relief to enforce the terms of this Section 4 without bond,
other security, or proof of damages.
Title. Distributor has granted Customer a sublicense to use the
Software. Licensor retains ownership of all copyright, trade secret,
patent, trademark and other proprietary rights in and to the Software
and Products. If Customer is ever held or deemed to be the owner of
any copyright, trade secret, patent, trademark or other proprietary
rights in the Software or Products, then Customer hereby irrevocably
assigns to Licensor all such rights, title and interest and agrees to
execute all documents necessary to implement and confirm the letter and
intent of this Section 5.
Warranty. Distributor warrants that it has the right to sublicense the
Software and that is has clear title to the Products. NEITHER LICENSOR
NOR RESELLER MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
FOR EITHER THE SOFTWARE OR PRODUCTS.
General Provisions.
Customer may not assign its rights or obligations under this Agreement
without the Licensor's written permission. If this Agreement is
assigned, it is binding upon the successors and assigns.
Licensor or Distributor will be liable for special, indirect,
incidental or consequential damages under either a contract or tort
theory. Also, Customer may not bring a claim or cause of action
relating to the Software, Products or this Agreement once one (1) year
has passed since the claim or cause of action arose. Lastly, under no
circumstances shall Distributor's or Licensor's liability exceed the
amount of the initial fee paid by Customer for the Software and
Products under this Agreement.
This Agreement is governed by the laws of the State of South Dakota in
the United States.
If either Reseller or Customer defaults on any obligation in this
Agreement and does not cure the default within sixty (60) days after
receiving written notice from the other, the party not in default may
terminate this Agreement. In the event of termination by reason of
Customer's default, Customer will return all copies of the Software to
Distributor or the Licensor and erase any copies on Customer's
machines.
Trace Australia Pty Ltd. Customer
X /s/
__________________________________
X__________________________________
Name: _______________________________
Name_______________________________
Title_________________________________
Title________________________________
Address______________________________
Address_____________________________
_____________________________________
____________________________________
Date_________________________________
Date________________________________
Exhibit A
Software Licenses
Computer Programs:
______________Software Program _______License(s) at $_______ per
license. Total $____________
User Documentation: No
Charge.
Total Amount Due for Software:
$_____________
Exhibit B
Products and Services Order Form
Appendix B
Non-Disclosure Agreement
THIS MUTUAL NON-DISCLOSURE AGREEMENT (The "Agreement") is made as of
___________, 2003 (the "Effective Date") by and between Distributor, a
corporation organized under the laws of the State of Victoria in the
Country of Australia, (the "Company"), and Advanced ID Corporation,
with principal offices at Calgary, Alberta in the Country of Canada
(the "Benefactor").
STATEMENT OF PURPOSE. This Agreement is being executed in connection
with discussions and other exchanges of information that
representatives of the Company and the Participant have had or will
have for the purpose of evaluating the possibility of entering into a
business relationship and/or certain business transactions, for the
protection of any and all of the Benefactor's proprietary and/or
Confidential Information (as defined) and for such other purposes as
the parties may collectively agree upon in writing (the "Purpose").
This Agreement is intended to allow both the Company and the
Participant to have open discussions while affording protection against
disclosure or unauthorized use of their Confidential Information or any
and all of the Benefactor's proprietary and/or Confidential Information
(as defined).
CONFIDENTIAL INFORMATION. The Company and the Participant understand
and agree that during the term of this Agreement they may be furnished
with or otherwise have access to non-public information that the other
party or the Benefactor consider to be of a confidential, proprietary,
or trade secret nature, including but not limited to the Benefactor's
RFID-related technologies, systems, and processes, as well as other
financial, business, and technical information, equipment
specifications, locations and use, network configurations, marketing,
engineering and other plans, financial statements and projections,
customer, vendor and supplier information, research, designs, plans,
specifications, drawings, blueprints, tracings, diagrams, models,
samples, flow charts, data, computer programs, source code, software,
disks, diskettes, tapes, compilations, methods, techniques, processes,
procedures, discoveries, ideas, concepts and know-how of the
Benefactor, the Company or the Participant, whether in tangible or
intangible form, and whether stored or not stored, compiled or
memorized physically, electronically, graphically, photographically, or
in writing (collectively, the "Confidential Information"). Both the
company and the Participant agree to secure and protect the
Confidential Information of the Benefactor and the other party in
strictest confidence in a manner consistent with the maintenance of the
Benefactor's and/or the other party's rights therein, using as great a
degree of care, if not more as it uses to maintain the confidentiality
of its own confidential information of a similar nature or importance,
but in no event using less than diligent care. Neither the Company,
nor the Participant shall sell, transfer, publish, disclose, or
otherwise use or make available any portion of the Confidential
Information of the Benefactor or of the other party to third parties,
except to those of its directors, officers, employees, or attorneys who
clearly have a need-to-know the same, in furtherance of the specific
purposes of this Agreement and as expressly authorized in this
Agreement. All such disclosures shall be subject to all of the terms
and conditions of this Agreement, and the party making such disclosure
to such directors, officers, employees and/or attorneys shall be fully
responsible for ensuring the compliance of all such parties with the
terms and conditions of this Agreement. No license under any patent,
trademark, copyright or any other worldwide intellectual property or
proprietary rights laws is either granted or implied by the disclosure
or provision of any Confidential Information covered hereby, including
any and all of the information covered hereby, including any and all of
the Benefactor's proprietary and/or Confidential Information. Nothing
in this Agreement shall be deemed to obligate the Company or the
Participant to disclose any Confidential Information to the other, or
to accept any Confidential Information from the other, be it the
Benefactor's or theirs. In addition, nothing in this Agreement shall
be deemed to commit or bind the Benefactor, the Company or the
Participant to enter into any other contractual or other relationship,
or to purchase any goods or services of any of the aforementioned
parties.
NON-CONFIDENTIAL INFORMATION. Notwithstanding Section 2, Confidential
Information of any of the concerned parties shall not include
information which: (a) is, as of the time of its disclosure or
thereafter becomes part of the public domain through a source other
than the receiving party, without violation of this Agreement; (b) can
be demonstrated to be (x) rightfully known to the receiving party as of
the time of its disclosure, or (y) independently developed by the
receiving party; (c) is lawfully learned by the receiving party without
restriction from a third party who obtained the Confidential
Information other than as a result of a breach of any confidentiality
obligation; or (d) is required to be disclosed pursuant to a duly
authorized subpeona, court order, or government authority, in which
event the party subject to same shall provide prompt written notice to
the other party prior to such disclosure, so that such party may seek a
protective order or other appropriate remedy.
OWNERSHIP. The receiving party agrees that all Confidential
Information of the Benefactor and the disclosing party which comes to
the receiving party's custody or possession, is and at all times shall
be the exclusive property of the Benefactor in the case of its
Confidential Information, and the disclosing party in the case of its
Confidential Information, to be used by the receiving party only for
the specific purposes expressly authorized by this Agreement. Upon the
termination or expiration of this Agreement, or at the request of the
Benefactor or the disclosing party at any time, the receiving party
shall promptly destroy all of its copies of such Confidential
Information or return the same to the Benefactor or the disclosing
party (in accordance with the Benefactor's or the disclosing party's
instructions, whichever one may ask), and shall, within thirty (30)
days of such termination, expiration or receiving such a request,
certify in writing its compliance with the terms of this provision.
After such destruction or delivery, the receiving party shall not
retain any copies thereof, except as may be allowed under separate
agreement or as lawfully retained. No disclosure of Confidential
Information shall constitute any representation or warranty regarding
the Confidential Information; all Confidential Information is provided
"AS IS" with all faults and the Benefactor shall have any liability for
the other party's reliance thereon.
MISCELLANEOUS. This Agreement constitutes the entire agreement between
the Company and the Participant concerning the subject matter hereof
and supersedes any prior or contemporaneous agreements concerning the
subject matter hereof. The term of this Agreement shall be for a
period of two (2) years unless terminated upon written notice by the
affected party to another. The confidentiality obligations for
Confidential Information of trade secret nature shall survive the
termination or expiration of this Agreement for as long as such
Confidential Information remains a trade secret, including as it
pertains to the trade secrets and proprietary information of
Benefactor. The confidentiality obligations for all non trade secret
Confidential Information shall continue for a period of five (5) years
following termination or expiration of this Agreement. The invalidity
or unenforceability of any provision of this Agreement shall not affect
the validity or enforceability of any other provision of this
Agreement, and any invalid or unenforceable provision shall be deemed
to be amended to the minimum extent necessary to render it enforceable
under applicable law while retaining to the maximum extent possible the
intent and economic benefit of the original provision consistent with
applicable law. No delay or omission by a party in exercising any
right under this Agreement will operate as a waiver of that or any
other right. This Agreement is governed by and will be construed in
accordance with the laws of the State of South Dakota in the United
States of America without regard to conflicts of its principles. The
Company and the Participant hereby expressly submit to the jurisdiction
and venue of the appropriate federal or state courts in the State of
South Dakota in the United States of America, however, the Company and
the Participant agree that any controversy or claim arising out of or
relating to this Agreement may be brought before a court or tribunal of
competent jurisdiction in any Nation, Country, State, Commonwealth or
other locality as be required to enforce their rights or as may be
required to enforce the rights of the Benefactor, and that the
Benefactor shall have the standing in such court or tribunal to enforce
any and all of its rights with concern to any and all of the its
proprietary and/or Confidential Information, including the pursuit of
injunctive contractors and shall not be deemed to be an agent, partner,
joint venture, or franchisor-franchisee with the other or with the
Benefactor for any purpose. The Company and the Participant
acknowledge that their breach of this Agreement may cause irreparable
injury to the Benefactor or to the other party and that the Benefactor
and/or the other party may seek and obtain injunctive and other
equitable relief in a court or tribunal of competent jurisdiction
against such breach. No amendment or modification of this Agreement
shall be valid or binding on the Company or the Participant unless made
in a mutually executed writing, and no amendment or modification of
this Agreement shall be valid or binding on the Benefactor unless
executed thereby. All affected parties shall not disclose, publicize
or advertise in any manner the discussions or negotiations contemplated
by this Agreement without the prior written consent of the affected,
except as may be required by law. All notices under this Agreement
shall be in writing and sent to the address listed herein (or to such
different address as may be designated by a party by written notice to
the other party), and shall be deemed to have been delivered (a) on the
date personally delivered, (b) on the date mailed, postage prepaid by
certified mail with return receipt requested or by an internationally-
recognized express courier, or (c) when sent via facsimile and
confirmed to the parties' addresses set forth herein. Any notice to
Benefactor shall be sent to the attention of the President. This
Agreement may be executed in multiple counterparts, all of which taken
together shall constitute a single instrument. This Agreement may be
delivered by facsimile.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date and agree to be legally bound by all terms and
conditions herein, including all those benefiting the Benefactor.
TRACE AUSTRALIA PTY LTD. ADVANCED ID CORPORATION
X /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director Title: President & CEO
Address: ▇▇▇▇▇▇ ▇▇▇▇, Address: Calgary
Victoria, Australia Alberta, Canada
Date: 01/09/2004 Date: Jan. 19, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ and Exclusivity
Capitalized terms not defined herein shall have the meaning ascribed to
them in the Agreement between AID and DISTRIBUTOR.
Except as otherwise provided for herein, AID hereby grants, on an
exclusive basis, a specific country identified below as the GEOGRAPHIC
TERRITORY, the following TERRITORY to DISTRIBUTOR under this Agreement,
provided, however that such exclusivity pertains ONLY to the sale
and/or licensing of the PRODUCTS to the entities and specific uses
identified below. AID acknowledges and agrees that it is the intention
of both parties to preserve the exclusivity granted to DISTRIBUTOR.
AID agrees in good faith to use all reasonable efforts to preserve the
exclusivity granted to DISTRIBUTOR.
GEOGRAPHIC TERRITORY: The country of Australia.
The exclusivity granted above shall pertain to the following
applications specifically for livestock and inanimate objects.
Tagging livestock for feeding, inventory control, shipping/receiving,
and other related track and trace applications for raising, managing
and processing livestock for use on farms or ranches.
Tagging livestock for inventory control, shipping/receiving, and other
related track and trace applications for managing and processing
livestock for use by meatpackers, feedlots and related food-processing
firms.
Tagging inanimate objects for inventory control, shipping/receiving,
and other related track and trace applications.
Any notations, clarifications, or changes to the above shall be
designated on a mutually approved basis, shall be in writing and shall
be signed by both parties.
Terms and Conditions for Exclusivity and Contract Periods
DISTRIBUTOR shall have the exclusivity with respect to the TERRITORY as
set forth above based upon the following criteria (all figures in
$USD):
Contract Period One: DISTRIBUTOR shall have the exclusivity from a
date to be mutually agreed upon through _______________________
provided, however, that the DISTRIBUTOR:
Remits to AID a non-refundable fee of $____________________ within 30
days of signature to this agreement.
The fee of $____________________ is an advance on either/or purchase of
PRODUCT that will be credited against the commitment of one million
dollars in contract period one or for engineering services in support
of PRODUCT changes/engineering work by AID for DISTRIBUTOR. Such work
will be detailed in a separate mutually agreed "Statement of Work".
Contract Period Two: DISTRIBUTOR shall have exclusivity from
________________ through __________________ provided, however, that the
DISTRIBUTOR purchases and pays for the minimum purchased requirements
of Section 2.1.2 of the Agreement.
Contract Period Three: DISTRIBUTOR shall have exclusivity from
______________
_______________ through __________________ provided, however, that the
DISTRIBUTOR purchases and pays for the minimum purchased requirements
of section 2.1.2 of the Agreement.