BUSINESS DEVELOPMENT AND MARKETING AGREEMENT
This
Agreement is entered into by and between SmartMetric, Inc. (hereinafter
“SmartMetric”), a corporation with offices at 00 Xxxx Xxxxxx, Xxxxx 00, Xxx
Xxxx, Xxx Xxxx 00000; and Information Spectrum, Inc., an Anteon Company
(hereinafter “ISI”), a corporation with offices at 0000 Xxxxxx Xxxxx Xxxxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 (collectively hereinafter the “Parties”).
|
1. |
Relationship
of the Parties |
1.1 The
Parties are, and shall remain, independent contractors, each responsible for its
own employees. As such, this Agreement is not intended to constitute, create,
give effect to, or otherwise recognize an agency, joint venture, partnership or
other form of business organization of any kind, and the rights and obligations
of the parties shall be only those expressly set forth herein. Unless otherwise
agreed in writing, each Party shall be responsible for its own costs incurred in
performing its duties hereunder.
| 2. | Services Provided |
| 2.1 |
ISI
shall provide marketing services under this Agreement. Specifically, ISI
shall actively seek to interest various persons and organizations
(“Customers”) in the purchase of credential cards and card production
systems incorporating SmartMetric products. |
2.2 SmartMetric
agrees to provide adequate product samples and other support as needed to
reasonably facilitate ISI’s marketing efforts.
2.3 If ISI
plans to offer SmartMetric products by submitting a formal proposal to a
Customer in response to a solicitation or anticipated solicitation
(“solicitation” or “opportunity”), the Parties agree to enter into a Teaming
Agreement before ISI submits its proposal. Such agreement shall define the
Parties’ reasonably required by SmartMetric or its customers and agreed to by
the Parties for such efforts.
| 3. | Exclusivity |
3.1 SmartMetric
agrees that ISI shall be the exclusive reseller of SmartMetric products to
agencies of the United States Government and the Government of Canada as
enumerated in Attachment A to this agreement.
3.2 For all
other customers, Government or Commercial, ISI shall be a nonexclusive reseller,
except that ISI may, from time to time, make a written request to add specific
customers to the above Attachment as exclusive to ISI. SmartMetric will approve
or deny such request within 30 days of receipt. A non-response from SmartMetric
after that period shall be deemed approval of ISI’s request. If approved,
SmartMetric agrees that ISI will be the exclusive reseller of SmartMetric
products for the customers requested, and Attachment A shall be modified to
reflect the additional exclusive ISI customer(s).
3.3 Every six
months, sales and marketing targets, goals, and activity will be reviewed along
with product developments, production and delivery schedules. The goal is to
insure that active and effective communication exists between the
parties.
3.4 SmartMetric
shall indemnify ISI and its officers, employees, and agents against liability,
including costs and attorney fees, for actual or alleged direct or contributory
infringement of, or inducement of infringe, any United States or foreign patent,
trademark or copyright, arising out of the performance of this agreement,
provided that SmartMetric is reasonably notified of such claims and
proceedings.
| 4. | ISI’s General Duties |
4.1 ISI shall
maintain a place of business in the Washington DC, Virginia or Maryland area,
including suitable meeting facilities to display and merchandise SmartMetric’s
Products.
4.2 ISI shall
appoint representatives to introduce, promote, market and sell SmartMetric’s
Products to the customers listed in Attachment “A.” Such personnel and/or
representatives shall be adequately trained by ISI. ISI shall employ sufficient
numbers of sales personnel and/or representatives properly to market
SmartMetric’s Products to the customers listed in Attachment “A.”
| 5. | Advertising Policies. |
SmartMetric
will cooperate with ISI in providing for advertising and promotion of
SmartMetric’s Product throughout ISI’s principal marketing area, and ISI agrees
to participate in, actively promote and faithfully comply with the terms and
conditions of such cooperative advertising and merchandising programs as
SmartMetric and IS may mutually establish. Nothing herein shall prevent ISI from
independently advertising and marketing SmartMetric’s Products provided the form
and content of the advertising or marketing materials are approved by
SmartMetric in advance.
ISI may
brand these products as its own or may use the SmartMetric brand at ISI’s sole
discretion.
| 6. |
Terms
of Product Sale. |
All sales
of SmartMetric’s Products of ISI and or its customers shall be made pursuant to
this Agreement at such prices and on such terms as SmartMetric shall establish
from time to time at least thirty (30) days notice. All prices are FOB
Manufacturer’s plant in the continental United States. SmartMetric agrees to
properly pack all items for shipment. Risk of loss due to damage or destruction
of SmartMetric’s Products shall be borne by ISI or its customers after delivery
to the carrier for shipment. The shipper will be selected by SmartMetric unless
ISI and or end customer requests a reasonable alternative. All orders are
subject to acceptance by SmartMetric. Except as otherwise expressly agreed by
SmartMetric and ISI in advance, this Agreement shall control all aspects of the
dealings between SmartMetric and ISI with respect to SmartMetric’s Products and
any additional or different terms in any ISI order are hereby rejected unless
mutually agreed upon in writing.
| 7. |
Products
Warranty Policies. |
Except as
otherwise agreed by the parties in writing in the event that any of
SmartMetric’s Products are proved to SmartMetric’s reasonable satisfaction to
have been defective at time of sale to ISI and or its customer, SmartMetric will
refund the original sales price of such product or, at SmartMetric’s election,
replace the defective product. SmartMetric shall provide to ISI information with
respect to SmartMetric’s limited warranty extended to the original consumer of
SmartMetric’s Products. MANUFACTURER MAKES NO OTHER WARRANTY TO DISTRIBUTOR WITH
RESPECT OT THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
| 8. |
Term
of Agreement |
8.1 Except as
otherwise set forth below, this Agreement shall expire two years after the
effective date of this Agreement unless extended by mutual agreement of the
Parties.
8.2 In the
event that a solicitation or contract award is pending with a particular
Customer at the time this Agreement would otherwise expire, for which ISI is
preparing to submit or has submitted a proposal offering SmartMetric products,
this Agreement shall continue in force with respect to that Customer for the
duration of that solicitation and any contract awarded to ISI as a result of its
proposal submission, including, in the event is awarded to ISI, any follow-on
contract that shall be issued in the future by that Customer or its successor to
ISI or a prime contractor for whom ISI is a proposed subcontractor.
8.3 This
Agreement shall automatically terminate upon the insolvency, bankruptcy,
reorganization under bankruptcy law, or assignment for the benefit of creditors
by either Party.
8.4 This
Agreement and the performance of the parties will be reviewed annually by the
parties and may be terminated by mutual agreement of the parties. In the event
that the Agreement is mutually terminated under this clause, the provisions of
Section 8.2 above will apply.
| 9. |
Representatives
of the Parties |
| 9.1 |
The
following individuals are designated representatives of the parties for
the respective matters: |
|
Information
Spectrum, Inc.
0000
Xxxxxx Xxxxx Xxxxxxxx, Xxxxx 000X
Xxxxxxxxx,
Xxxxxxxx 00000 |
Technical:
Xxx Xxxxxxxxx
Contractual:
Xxxxxxxxxxx X. Xxxxxx
Telephone:
(000) 000-0000
Fax:
(000) 000-0000 |
|
00
Xxxx Xxxxxx, Xxxxx 00
Xxx
Xxxx, Xxx Xxxx 00000 |
Technical:
Xxxxx Xxxxxxxx
Contractual:
Xxxxx Xxxxxxxx
Telephone:
(000) 000-0000
Fax:
(000) 000-0000 |
9.2 For
purposes of this Agreement, written notice shall be considered to have been
provided by either Party if sent to the above-named contractual representative
of the other Party, at the above address, via certified mail, return receipt, or
by Federal Express or other commercial courier service requiring signed
receipts.
| 10. |
Proprietary
Information |
10.1 “Proprietary
Information” is defined in the Nondisclosure Agreement entered into by the
Parties on August 6, 2003, and any such information exchanged in support of this
Agreement shall be handled pursuant to the terms of that agreement.
| 11. |
Disputes |
11.1 Any
controversy or claim arising out of or relating to this Agreement, or breach
thereof, shall be settled by amicable negotiation between the parties’
representatives to the maximum reasonable extent. In the event the parties are
unable to resolve a particular dispute following extended good faith
negotiation, either Party may submit the matter to arbitration administered by
the American Arbitration Association for arbitration under its Commercial
Arbitration Rules. Judgment on the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. The arbitration shall take
place in Fairfax County, Virginia.
| 12. |
Applicable
Law |
12.1 This
Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Virginia.
| 13. |
Assignment |
13.1 This
Agreement, and any rights or obligations hereunder, cannot be assigned or
otherwise transferred by either party in whole or in part without the express
prior written consent of the other party. Transfer of ISI’s responsibilities
hereunder to its parent company, Anteon International Corporation, or any other
affiliate of ISI, shall not be considered an assignment.
| 14. |
Severability |
14.1 In the
event that any one or more of the provisions of this Agreement is found to be
unenforceable, the enforceability of the remaining provisions shall be
unimpaired.
| 15. |
Non-Solicitation
of Employees |
15.1 During
the terms of this Agreement, neither Party shall solicit for hire any employee
of the other; nor shall they hire any employee without the express consent of
the firm from which the employee may sever himself/herself. This clause does not
preclude employees of either party from pursuing employment opportunities with
the other party on their own initiative or in response to public advertisements
published by either party.
| 16. |
Entire
Agreement |
16.1 This
Agreement constitutes the entire agreement between the parties with regard to
the marketing of SmartMetric products by ISI and supersedes all previous
understandings, agreements or representations, written or oral, between the
parties on this subject matter. This Agreement may be amended only in writing
executed by the parties hereto.
IN
WITNESS WHEREOF, the parties have executed this Agreement.
|
Information
Spectrum, Inc. | |
|
By:
/s/
Xxxxx Xxxxxxxx |
By:
/s/
Xxxxxxxxxxx X. Xxxxxx |
|
Name:
Xxxxx
Xxxxxxxx |
Name:
Xxxxxxxxxxx
X. Xxxxxx |
|
Title:
President
and CEO |
Title:
Vice
President, Contracts |
|
Date:
October
30, 2003 |
Date:
October
30, 2003 |
ATTACHMENT
A
List
of Customers Exclusive to ISI*
Department
of State (All Bureaus)
Department
of Homeland Security (All Bureaus, including, without limitation, the below
list)
Border
and Transportation Security
Customs
and Border Protection
Immigration
and Customs Enforcement
Air and
Marine Interdiction
Transportation
Security Administration
United
States Coast Guard
United
States Secret Service
Science
and Technology
Emergency
Preparedness
General
Services Administration (GSA)
Government
of Canada (All Bureaus, including, without limitation, the below
bureau))
Citizenship
and Immigration Canada
Department
of Defense, including, without limitation:
Defense
Manpower Data Center (DMDC)
U.S.
Coast Guard
U.S.
Army
U.S.
Navy
U.S.
Marine Corps
U.S. Air
Force
Defense
Logistics Agency
Department
of Commerce
Includes
any successor agencies in the event of Government restructuring or
reorganization.
Nondisclosure
Agreement
This
Agreement is entered into by and between Information Spectrum, Inc. (hereinafter
“ISI”), a corporation with offices at 0000 Xxxxxx Xxxxx Xxxxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, and SmartMetric, Inc., a corporation with offices at 00 Xxxx
Xxxxxx, Xxxxx 00, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
“SmartMetric”).
1. “Proprietary
Information” is defined as information that the disclosing party at the time of
disclosure identified in writing as Proprietary Information by means of a
proprietary or confidential legend, marking, stamp, or other positive written
notice identifying the information to be proprietary or confidential. In order
for information disclosed orally or visually by a party to this Agreement to be
considered Proprietary Information protected hereunder, the disclosing party
shall identify the information as proprietary at the time of the disclosure and,
within ten (10) days after such oral or visual disclosure, reduce the subject
matter of disclosure to writing, properly stamped with a proprietary legend,
marking, stamp or other positive written notice, and submit it to the receiving
party.
2. Proprietary
Information disclosed hereunder may be used only for mutual benefit of
SmartMetric and ISI in conducting discussions and exchanging information
relating to fingerprint biometric, biometric smartcard with fingerprint storage,
high-capacity memory cards, contact and contactless identification cards, and
the processing of information on these identification cards, and then only in
strict accordance with the terms of this Agreement.
3. It is
agreed that for a period of five (5) years following the receipt of Proprietary
Information, each party will use such information only for the purpose(s) set
out in Paragraph 2 above and shall take reasonable efforts to preserve the
confidentiality of such Proprietary Information, and prevent disclosure thereof
to third parties. Each party agrees that it will use the same reasonable efforts
to protect the other’s Proprietary Information as are used to protect its own,
but, in any event, not less than reasonable care.
4. The
obligation to protect Proprietary Information, and the liability for
unauthorized disclosure or use of Proprietary Information, shall not apply with
respect to: such information that is now available or becomes available to the
public without breach of this Agreement; information lawfully received without
restrictions from other sources, including the U.S. Government; information
published or disclosed by the disclosing party to others, including the U.S.
Government, without restriction; information developed by the receiving party
independent of and without use of the information disclosed by the disclosing
party; or information that is required to be disclosed pursuant to any law or
judicial or governmental demand, requirement or order, provided that the
receiving party shall give reasonable notice to the disclosing party of such
order to enable the disclosing party to seek legal protection of the Proprietary
Information.
5. The
parties agree that disclosures of Proprietary Information shall be restricted to
those individuals directly participating in the effort set out in Paragraph 2
who have a need to know been made aware of and consent to abide by the
restrictions contained herein concerning the disclosure and use of such
information. The receiving party agrees to provide the disclosing party a list
of those individuals to whom such disclosures have been made upon request of the
disclosing party.
6. This
Agreement shall expire two (2) years after the effective date of this Agreement,
but may be terminated earlier by either party giving thirty (30) days notice in
writing to the other party of its intention to terminate. Termination shall not,
however, affect the rights and obligations contained herein with respect to
Proprietary Information disclosed hereunder prior to termination.
7. Upon
termination or expiration of this Agreement or upon the written request of
either party at any time, each party will, within a reasonable period of time
thereafter, not to exceed thirty (30) days, return all Proprietary Information
received from the other party and copies made thereof by the receiving party
under this Agreement, or certify by written memorandum that all such Proprietary
Information has been destroyed.
8. Except as
expressly provided herein, neither the execution and delivery of this Agreement
nor the furnishing of any Proprietary Information shall be construed as granting
either expressly or by implication, estoppel or otherwise, any license under any
copyright, invention, improvement, discovery or patent, or trademark now or
hereafter owned or controlled by a party disclosing Proprietary Information
hereunder.
9. This
Agreement, and the rights and obligations hereunder, may not be transferred or
assigned by one party without the prior written approval of the other party
hereto.
10. Each
party warrants that it has the right to disclose the Proprietary Information
disclosed to the other party hereunder for the purpose set out in Paragraph 2
above.
11. Neither
party shall export, transmit or otherwise convey any Proprietary Information
disclose under this Agreement in contravention of any laws, ordinances or
regulations of the U.S. Government.
12. The laws
of the Commonwealth of Virginia shall govern this Agreement, without regard to
its conflict of law rules.
13. This
Agreement shall not be construed as a teaming, joint venture, or other such
arrangement; rather, the parties hereto expressly agree that this Agreement is
for the purpose of protection of Proprietary Information only.
14. Neither
party has an obligation to supply Proprietary Information
hereunder.
15. The
parties agree that the terms and conditions of this Agreement are reasonable and
necessary for the protection of Proprietary Information and to prevent damage or
loss to ISI and SmartMetric. Each party agrees that any breach or threatened
breach by it, of the foregoing terms and conditions, will cause irreparable
injury to the other party for which there is no adequate remedy at law.
Therefore, each party expressly agrees that the party that may be harmed shall
be entitled, in addition to any other remedies available, to injunctive or other
equitable relief to require specific performance or to prevent a breach of this
Agreement.
16. This
Agreement contains the entire understanding between the parties relative to the
protection of Proprietary Information and supersedes all prior and collateral
communications, reports, and understandings between the parties in respect
thereto. No change, modification, alteration, or addition to any provision
hereof shall be binding unless in writing and signed by authorized
representatives of both parties.
17. All
notices shall be in writing, shall bear the addresses of the parties to this
Agreement and shall be dispatched by certified or registered mail, return
receipt requested. A notice sent by facsimile shall be effective when received,
provided that it is promptly confirmed by certified or registered mail, return
receipt requested.
IN
WITNESS WHEREOF, the parties hereto have caused this Nondisclosure Agreement to
be executed as of the date and year indicated below.
INFORMATION
SPECTRUM, INC. SMARTMETRIC,
INC.
By:
/s/
Xxxxxxx X. Xxxxxxxxx By: /s/
Xxxxx Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx Name:
Xxxxx Xxxxxxxx
Title:
Executive Vice President Title:
President and CEO
Date:
August 5, 2003 Date:
August 5, 2003
