Faces 4.0 Production agreement between CogniScience and IQ Biometrix
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THIS AGREEMENT made the ______ day of _________________, 2002.
BETWEEN:
IQ BIOMETRIX
a corporation incorporated under and pursuant to the laws of California
(hereinafter called "IQ Biometrix")
AND
ENTREPRISES COGNISCIENCE INC.
a corporation incorporated under and pursuant to the laws of Quebec
(hereinafter called the "Contractor")
WHEREAS IQ Biometrix desires the Contractor to provide and the Contractor has
agreed to provide, in English, on the terms and conditions set out below, the
version 4.0 of Faces, (hereinafter called the "Production");
AND WHEREAS the Contractor has submitted a proposal for the Production, which is
attached to this Agreement as Schedule "A";
THE PARTIES THEREFORE AGREE AS FOLLOWS::
1. DEFINITIONS
(1) In this Agreement,
(a) "Content" means all literary, artistic and/or other
material defined as and including: intellectual
property developed or to be developed or licensed by
the Contractor or IQ Biometrics and other parties,
through sub-contracts, pursuant to the Agreement. This
may include, but is not limited to, product design and
user interfaces, program/software source code,
proprietary content, quality assurance, and program
code as specifically described in Schedule "A" attached
hereto and forming part of this Agreement;
(b) "Information" means Personal Information and any information related
to IQ Biometrix which is received or obtained in the
course of carrying out this Agreement;
(c) "Production" means the services performed and processes undertaken by
each party toward the management and development of
the Product, including but not limited to technical
knowledge and expertise for carrying out the
following related services: editorial, computer
programming, technical use of proprietary authoring
applications, artistic rendering and graphics,
multimedia production, copyright clearances,
authoring, content rights management, licensing,
validation, review, quality assurance, and other
related services as specifically described in
Schedule "A" attached hereto and forming part of
this Agreement.
2. CONTRACTOR'S WORK
(1) The Contractor shall commence work on this Production
immediately upon execution of the Agreement and reception of
first payment.
(2) The Contractor agrees to research, develop and produce the
Production to the best of the Contractor's skill, judgement,
ability and to industry standards in accordance with the
conditions set out in Schedules "A" attached hereto and
forming a part of this Agreement.
(3) The Contractor shall work collaboratively with IQ Biometrix to
ensure that the Production meets or exceeds IQ Biometrix
minimum standards of quality.
(4) The Contractor agrees that IQ Biometrix shall have, at all
reasonable times, access to the work, or any component part
hereof, that the Contractor is performing as a result of this
Agreement.
3. CONFIDENTIALITY
(1) The Contractor agrees and expressly undertakes to protect and
hold in confidence all Information furnished to the Contractor
by IQ Biometrix or by any individual in the course of carrying
out this Agreement or which becomes accessible to the
Contractor as a result of carrying out this Agreement.
(2) The Contractor acknowledges and undertakes that during the
currency of this Agreement and after the Agreement has
terminated or expired, the Contractor shall, for all third
party Personal Information collected or used by, or accessible
to, the Contractor, protect that Personal Information against
such risks as unauthorized access, collection, use, disclosure
and destruction of the Personal Information.
(3) The Contractor shall not disclose or use any Information
without the prior approval of IQ Biometrix.
4. SCHEDULE AND PAYMENT OF FEES
(1) The Contractor agrees to comply with the time lines contained
in Schedule "B", and agrees to deliver the completed
Production on or before August 30, 2002 (hereinafter
called the "Completion Date").
(2) IQ Biometrix agrees to pay the Contractor two hundred and
seventy-five thousand Canadian dollars (275 000 CDN $) to
the Production. The payment schedule is ninety-two
thousand Canadian dollars (92 000 CDN $) upon signature of
the contract, ninety-two thousand Canadian dollars
(92 000 CDN $) upon delivery of the alpha version and
ninety-one thousand Canadian dollars (91 000 CDN $) upon
delivery of the Gold CD and all related source codes.
(3) Authorization for the payments, as further described in Schedule
"B", are contingent upon and become payable upon:
(a) the submission of the completed work to IQ Biometrix,
(b) submission to and the approval of an invoice by IQ Biometrix.
(4) Except for the initial payment, the Contractor shall be paid
within thirty (30) days of the date that amounts referred to
in Schedule "B" become payable by IQ Biometrix, in accordance
with subsection (3).
(5) IQ Biometrix shall own the Production when it is fully paid for.
(6) The Contractor has the option to convert the last two
payments, or a portion of, into royalty based revenue. This
option is valid for the duration of the agreement. The royalty
agreement shall be negotiated in good faith between both
parties.
5. CONTRACTUAL WARRANTIES
(1) The Contractor agrees that the terms and provisions of
Schedule "A", the Contractor's proposal, constitute warranties
by the Contractor to IQ Biometrix.
6. COPYRIGHT
(1) All rights, including copyright, in any materials produced as
a result of this Agreement, including all master copies, all
electronic files and source code, shall remain the sole
property of IQ Biometrix. The Contractor further covenants and
agrees that it shall retain no rights, title or interest
whatsoever in the Production.
(2) IQ Biometrix reserves the right to bundle, market, and
distribute the Production, in any format and any media,
whether now known or subsequently invented, and for any mode
of delivery that currently exists or will exist in the future.
(3) IQ Biometrix acknowledges that the Contractor is the sole
owner of the software required to run the Product.
(4) The Contractor hereby grants to IQ Biometrix a license in
perpetuity to the run time of the proprietary software
required to run the Product.
(5) The Contractor warrants that the Production will not
contain any defamatory or unlawful material and will not
infringe upon or otherwise violate any copyright, including
moral rights, or similar rights which are lawfully held by
another person, corporation or organization.
(6) The Contractor may enter the Product into media festivals
with prior consent of IQ Biometrix or his designate.
7. MARKETING AND DISTRIBUTION
(1) IQ Biometrix owns the licence to market and distribute the
Product world-wide, in all formats, all media, and all
languages.
(2) IQ Biometrix may sub-license its distribution rights in
subsection (1) on any non-exclusive basis IQ Biometrix wishes,
to any person, corporation or other entity for the purpose of
commercial exploitation.
8. BANKRUPTCY AND LIQUIDATION
(1) In the event of bankruptcy or liquidation of the Contractor
for any cause anytime prior to the delivery of the Production
to IQ Biometrix, IQ Biometrix may exercise either of the
following options:
(a) IQ Biometrix may terminate this Agreement and recover
from the Contractor any amounts advanced to the
Contractor prior to the date of bankruptcy or
liquidation as the case may be. In such case,
ownership of the Production or any portion thereof
shall remain with the Contractor; or
(b) IQ Biometrix may terminate this Agreement and the
Contractor shall be deemed to be fully compensated
by the amounts paid to the Contractor under this
Agreement prior to the date of such bankruptcy or
liquidation. The Contractor agrees that the sole
and exclusive ownership of the Production including
any and all copyright therein or any portion thereof,
shall pass to IQ Biometrix as of the date of
bankruptcy or liquidation and the Contractor agrees
to deliver the production or any portion thereof to
IQ Biometrix upon demand. Upon such an occurrence,
the Contractor further covenants and agrees that it
shall retain no right, title or interest whatsoever
therein.
9. TERMINATION AND REDUCTION OF WORK
(1) This Agreement may be terminated without cause by IQ Biometrix or the
Contractor at any time upon providing the other party with
fourteen (14) days notice in writing. Upon the termination of
the Agreement, the Contractor shall immediately cease all work
and prepare a report of all work completed to date together
with an invoice for any services that may have been rendered
to the date of termination but for which no invoice has yet
been tendered. Any payment pursuant to this provision shall
constitute the final settlement for any claim, costs, or
damages that the Contractor may have as a result of receipt of
the notice of termination of the Production.
(2) IQ Biometrix may, at his discretion, notify the Contractor that the
work to be performed by the Contractor in the Production will
be reduced. IQ Biometrix and the Contractor shall meet to
determine the sums that shall be paid for the reduced
Production. In the event that a mutually agreed upon schedule
of fees for the reduced Production cannot be agreed upon, then
IQ Biometrix reserves the right to either reinstate the
original Production, or to terminate this Agreement pursuant
to subsection (1), as of the date that the notice to reduce
the Production was given.
10. AUTHORIZED REPRESENTATIVES AND ADDRESS FOR SERVICE
(1) IQ Biometrix designates Xxxx X. Xxxxx, Chief Financial
Officer, as IQ Biometrix representative in respect of this
Agreement. IQ Biometrix may appoint a new representative upon
giving written notice to the Contractor.
(2) The Contractor designates Xxxxx Xxxxxxx, Vice-President
Business Development, as the Contractor's representative in
respect of any and all approvals required to be given under
this Agreement. The Contractor may appoint a new
representative upon giving written notice to IQ Biometrix.
(3) Notices, reports and any other communications required or
permitted by this Agreement to be given and sent by one party
to another shall be in writing and shall be delivered by hand,
mailed by registered post, or by facsimile device as follows:
To IQ Biometrix at: 0000 Xxxxxx Xxxxxx Xxxxx X
Xxxxxx Xxxxxxxxxx 00000
Fax: 000-000-0000
To the Contractor at: 0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx XX X0X 0X0
Fax: (000) 000-0000
(4) A notice sent by registered post in United States shall be
deemed to have been received by the Addressee by 4:30 p.m. on
the fourth business day following the mailing thereof. If a
notice is delivered or sent by facsimile, it shall, if
delivered after 4:30 p.m., be deemed received on the next
business day. In this paragraph, "business day" means any day
except Saturday, Sunday or Statutory Holiday.
11. MISCELLANEOUS
(1) The Contractor acknowledges that the Contractor is an
independent contractor and that nothing in this Agreementshall
be construed so as to create a master and servant relationship
between IQ Biometrix and the Contractor, the Contractor's
agents, servants or employees.
(2) All information concerning either party to this Agreement
which is obtained by one of the parties in the performance of
this Agreement shall be treated as confidential and shall not
be disclosed by either party without the prior written consent
first obtained from the other party, which consent may be
arbitrarily withheld.
(3) This Agreement may not be subcontracted or assigned by the
Contractor, without the express written consent of IQ
Biometrix, which consent shall not be unreasonably withheld.
(4) A waiver of any breach of a provision hereof shall not be
binding upon a party unless the waiver is in writing and such
waiver shall not constitute a waiver of any future breach of
that provision or of this Agreement.
(5) All representations, warranties, and indemnifications, shall
survive the termination of this Agreement.
(6) Schedules "A" and "B" attached to this Agreement are deemed to
form part of this Agreement.
(7) The Contractor shall not be deemed to be in breach of this
Agreement solely by reason of any event of "force majeure" and
any date so affected shall be extended by IQ Biometrix for a
reasonable period of time. Such events of force majeure shall
include, but not be limited to, floods, earthquakes, civil
disturbance, war, embargoes, acts of God, or any other cause
wholly beyond the control of the Contractor.
(8) The Agreement constitutes the entire Agreement between IQ
Biometrix and the Contractor with respect to the Production,
and any changes and amendments or collateral agreements shall
have legal effect only if made in writing and signed by all
parties.
(9) This Agreement shall be binding upon and enure to the benefit
of IQ Biometrix and the Contractor, and to their respective
successors and permitted assigns.
(10) This Agreement shall be construed according to the laws of th
e State of California.
(11) Each party warrants that it has the authority to enter into
this agreement and that this agreement does not contravene any
law or regulation or agreement binding or affecting either
party.
(12) Time is of the essence of this agreement.
IN WITNESS WHEREOF the parties have executed this Agreement the day and year
first written above.
IQ BIOMETRIX
___________________________ ____________________________
WITNESS XXXX X. XXXXX
CHIEF FINANCIAL OFFICER
ENTERPRISES COGNISCIENCE INC.
___________________________ __________________________
WITNESS XXXXX XXXXXXX
VICE-PRESIDENT BUSINESS DEVELOPMENT
FACES 4.0
DEVELOPMENT PLAN
SCHEDULE "A"
FACES 4.0
SCHEDULE "B"
PRODUCTION AND PAYMENT SCHEDULE
Total fee payable to the Contractor for the completion of the Production is TWO
HUNDRED AND SEVENTY-FIVE THOUSAND dollars ($275,000.00) as follows:
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Deliverables Delivered on or before Payment
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(1) Executed contract June 1, 2002 92 000 $ CDN
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(2) Prototype July 15, 2002
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(3) Alpha version July 30, 2002 92 000 $ CDN
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(4) Beta version August 15, 2002
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(5) Gold CD and all
related source codes August 30, 2002 91 000 $ CDN
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The schedule is contingent on the contract being executed on the first of June
2002 and the first payment being received on the first of June 2002. Any delay
would postpone each of the deliverables for the same duration.
The schedule is also contingent on the work being done by IQ Biometrix team on
the facial element images construction or processing. Any delay in supplying all
the required facial element image files in the specified format would postpone
deliverables (3), (4) and (5) for the same duration.
All payments are contingent upon:
(1) the submission to and approval of the deliverables by IQ
Biometrix, and
(2) the submission to and the approval of the invoice by IQ
Biometrix.
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IQ Biometrix's Initials
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Contractor's Initials
