EXHIBIT 10.21
SOURCE CODE ESCROW AGREEMENT
THIS AGREEMENT is made effective this 15th day of April, 2003
AMONG:
IMAGIS TECHNOLOGIES INC., a British Columbia company with its office
at 1670 - 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0
("Imagis")
AND:
XXXXX XXXXXXXX, businessman, of 1300 - 0000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, X.X. X0X 0X0
("Xxxxxxxx")
AND:
LML&S SERVICES INC., a British Columbia company with its registered
office at 1500 - 0000 Xxxx Xxxxxxx Xxxxxx, X.X. Xxx 00000, Xxxxxxxxx,
X.X. X0X 0X0
("Escrow Agent")
WHEREAS:
(A) Pursuant to an amended and restated loan agreement between Imagis and
Xxxxxxxx dated April 15, 2003 (the "Amended and Restated Loan Agreement"),
Xxxxxxxx has agreed to lend a maximum credit amount of Cdn. $500,000 to Imagis
to assist in its cash flow management and general working capital;
(B) Pursuant to a general security agreement between Imagis and Xxxxxxxx dated
April 15, 2003 (the "General Security Agreement"), Imagis has agreed to grant
security over all its present and after-acquired persona property and an
uncrystalized floating charge on land subject only to permitted encumbrances as
set out therein; and
(C) As a condition of entering into the Amended and Restated Loan Agreement,
Xxxxxxxx requires that Imagis deposit certain source codes, together with the
licence agreement dated April 15, 2003 (the "Licence Agreement") with the Escrow
Agent, to be held and released in accordance with the terms of this Agreement;
WITNESSES that in consideration of the mutual covenants and agreements contained
in this Agreement and in the Amended and Restated Loan Agreement, the Parties
agree as follows:
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PART 1
DEFINITIONS, INTERPRETATION AND SCHEDULES
Definitions
1.1 In this Agreement, except as otherwise expressly provided or as the context
otherwise requires,
(a) "Agreement" means this Escrow Agreement and the schedules attached
hereto, as may be supplemented or amended from time to time and in effect;
(b) "Amended and Restated Loan Agreement" has the meaning ascribed to it in
Recital A;
(c) "Business Day" means a day that is not a Saturday, Sunday or statutory
holiday in Vancouver, British Columbia;
(d) "Claim" has the meaning ascribed to it in ss.3.7;
(e) "Deposit Notice" has the meaning ascribed to it in ss.2.5;
(f) "Dispute" has the meaning ascribed to it in ss.5.1;
(g) "Effective Date" means the effective date of this Agreement being the
date first above written;
(h) "Executive Officer" has the meaning ascribed to it in ss.5.2;
(i) "Force Majeure" means any event or occurrence beyond the reasonable
control of a Party which prevents such Party from performing its
obligations under this Agreement including an act of God, government order,
strike, lockout or other industrial disturbance, war, terrorist act,
blockade, insurrection, riot, earthquake, typhoon, hurricane, flood or
other natural disaster;
(j) "General Security Agreement" has the meaning ascribed to it in Recital
(B);
(k) "Liabilities" has the meaning ascribed to it in ss.3.7;
(l) "Licence Agreement" has the meaning ascribed to it in Recital (C);
(m) "Notice" has the meaning ascribed to it in ss.6.2;
(n) "Party" means a Person that is a party to this Agreement;
(o) "Person" means any individual, company, body corporate, firm, limited
or unlimited liability company, partnership, syndicate, joint venture,
society, association, trust, unincorporated organisation or government
authority, or any trustee, executor, administrator or other legal
representative thereof;
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(p) "Rules" has the meaning ascribed to it in ss.5.4;
(q) "Source Codes" means all source codes described in Schedule A and all
Updates;
(r) "Tangible Media" means any document, magnetic tape, disk or other
physical medium containing the Source Codes; and
(s) "Update" means any modification, update, enhancement, change, deletion
or new release of the Source Codes made by the Licensor.
Interpretation
1.2 In this Agreement, except as otherwise expressly provided,
(a) the headings are for convenience only and do not form a part of this
Agreement and are not intended to interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof;
(b) whenever required by context, a word importing the masculine gender
includes the feminine or neuter gender and a word in the singular includes
the plural and vice versa;
(c) a reference to a Part means a Part of this Agreement and the symbol
"ss." followed by a number or letter or some combination of numbers and
letters refers to the provision of this Agreement so designated and the
words "hereof", "hereto", "herein" and "hereunder" refer to the entirety of
this Agreement rather than any particular Part or section;
(d) a reference to a statute includes all regulations made pursuant
thereto, all amendments to the statute or regulations in force from time to
time and any statute or regulations that supplement or supersede such
statute or regulations;
(e) a reference to a corporate entity includes any successor to that
entity;
(f) a reference to currency means Canadian currency;
(g) a reference to "approval", "authorization", "notice" or "consent" means
written approval, authorization, notice or consent not to be unreasonably
withheld or delayed;
(h) the words "including" and "include", when following a general statement
or term, are not to be construed as limiting the general statement or term
to any specific item or matter set forth or to similar items or matters,
but rather as permitting the general statement or term to refer to all
other items or matters that could reasonably fall within its broadest
possible scope; and
(i) an accounting term not otherwise defined herein has the meaning
assigned to it, and every calculation to be made hereunder is to be made,
in accordance with Canadian Generally Accepted Accounting Principles,
applied on a consistent basis.
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Schedules
1.3 Schedule A attached to this Agreement is incorporated into this Agreement by
reference and forms a part hereof:
PART 2
ESTABLISHMENT OF ESCROW
Appointment of Escrow Agent
2.1 Imagis and Xxxxxxxx hereby appoint the Escrow Agent to act as escrow agent,
and the Escrow Agent agrees to such appointment, on the terms and conditions set
forth in this Agreement. Imagis and Xxxxxxxx acknowledge that the Escrow Agent
has not, as of the date of signing this Agreement, reviewed any other agreement
related hereto other than the Amended and Restated Loan Agreement, the Licence
Agreement and this Agreement. Imagis and Xxxxxxxx will jointly cause copies of
any other relevant agreement to be delivered to the Escrow Agent immediately
following the execution and delivery of this Agreement.
Initial Deposit to Escrow
2.2 Concurrently with the execution and delivery of this Agreement, Imagis will
deposit with the Escrow Agent one copy of each of the Source Codes together with
the Licence Agreement. Unless and until Imagis makes such initial deposit with
the Escrow Agent, the Escrow Agent will have no obligation under this Agreement.
Additional Deposits to Escrow
2.3 Upon the commercial release of an Update, Imagis will promptly deposit with
the Escrow Agent one copy of each the updated version of the Source Codes that
incorporates such Update identifying the source code which is replaced thereby.
Upon receipt of such updated Source Codes, the Escrow Agent will return or
destroy the previously held version of the Source Codes.
Identification of Deposits
2.4 Prior to delivering each deposit of the Source Codes to the Escrow Agent,
Imagis will conspicuously label for identification each Tangible Media to be
deposited with the Escrow Agent.
Notification of Deposits
2.5 Together with each deposit of the Source Codes to the Escrow Agent, Imagis
will deliver to the Escrow Agent and Xxxxxxxx a written statement ("Deposit
Notice") describing each item and the quantity of such item being deposited to
escrow and certifying that each such item has been inspected by Imagis and is
complete and accurate.
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Inspection and Acceptance of Deposits
2.6 Upon receipt of a deposit of the Source Codes, the Escrow Agent will conduct
a deposit inspection by visually matching the labelling of the Tangible Media to
the item descriptions and quantity listed in the Deposit Notice. The Escrow
Agent will note any discrepancies between the labelling of the Tangible Media
and the item descriptions or quantity on the Deposit Notice, date and sign the
Deposit Notice and deliver a copy thereof to Imagis and Xxxxxxxx. Imagis and
Xxxxxxxx will be solely responsible for remedying or addressing any such
discrepancies with respect to any deposit of the Source Codes. The Escrow
Agent's acceptance of a deposit of the Source Codes occurs upon its signing of
the respective Deposit Notice.
Verification of Deposits
2.7 Other than the inspection referred to in ss.2.6, the Escrow Agent will have
no obligation to verify the completeness, accuracy, sufficiency, correctness,
genuineness, validity or quality of the deposited Source Codes. Xxxxxxxx will
have the right, at any time during the term of this Agreement and at his sole
expense, to have any deposit of the Source Codes verified by an independent
third party. Xxxxxxxx will notify Imagis and the Escrow Agent of any such
request for verification, which must be conducted at the Escrow Agent's
premises, and Imagis will have the right to be present at the verification.
Title to Source Codes
2.8 The Parties acknowledge and agree that title to the Source Codes will remain
at all times with Imagis.
No Encumbrance
2.9 Under no circumstance will Xxxxxxxx or Imagis be entitled to make any claim
for, or otherwise request a release of, the Source Codes or the Licence
Agreement from escrow for any reason other than as expressly set forth herein,
the Amended and Restated Loan Agreement and the General Security Agreement and
each of Imagis and Xxxxxxxx hereby waives and disclaims any rights it may
otherwise have under statute, at law or in equity to any lien, charge,
encumbrance or setoff in respect of the escrowed Source Codes and Licence
Agreement for any reason, cause or circumstance.
Restriction
2.10 The Source Codes will not be sold, assigned, hypothecated, alienated,
released from escrow, transferred within escrow or dealt with in any manner
whatsoever except pursuant to the terms and conditions of this Agreement or as
agreed to in writing by each Party.
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PART 3
ESCROW AGENT
Source Codes Held in Escrow
3.1 The Source Codes and the Licence Agreement deposited with the Escrow Agent
will be held in escrow by the Escrow Agent. Except as provided in this
Agreement, the Escrow Agent will not disclose, make available, release or use
the Source Codes or the Licence Agreement.
Legal Requirement to Disclose
3.2 If the Escrow Agent is required by applicable law, regulation or legal
process to disclose, make available or release the Source Codes or the Licence
Agreement, the Escrow Agent will immediately notify Imagis and Xxxxxxxx unless
prohibited by law. The Escrow Agent will not be required to disobey any such
requirement. It will be the responsibility of Imagis and Xxxxxxxx to challenge
any such requirement; provided, however, that the Escrow Agent does not waive
its rights to present its position with respect to any such requirement.
Right to Copy Deposited Materials
3.3 The Escrow Agent, at Imagis' and Nazerali's expense, may copy the Source
Codes held in escrow as reasonably necessary to comply with the terms and
conditions of this Agreement. The Escrow Agent will duplicate all copyright,
nondisclosure and other proprietary notices and titles contained on the Tangible
Media onto any copies made by the Escrow Agent. Imagis will provide all
instructions necessary to duplicate the Source Codes, including the hardware and
software required, together with each deposit of the Source Codes to the Escrow
Agent.
Terms and Conditions
3.4 The Escrow Agent accepts its duties and obligations under this Agreement on
the following terms and conditions:
(a) the Escrow Agent will not be responsible or liable in any manner
whatsoever for the completeness, accuracy, sufficiency, correctness,
genuineness or validity of any of the Source Codes or other item deposited
with it (other than ensuring that documents required by this Agreement to
be signed have been signed, but provided that the Escrow Agent shall be
entitled to assume the genuineness of all signatures);
(b) the Escrow Agent may rely upon any notice, request, statement, waiver,
consent, receipt, certificate or any paper or document furnished to it, and
executed with or without seal by either of Imagis or Xxxxxxxx or any other
Person, not only as to its due execution and the validity and effectiveness
of its provisions but also as to the truth and acceptability of any
information therein contained, and the Escrow Agent will not be required to
determine the authenticity of signatures or the power and authority of any
signatory to execute any document;
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(c) the Escrow Agent may engage such professional advisers and legal
counsel as it determines to be necessary or advisable in order to fulfil
its obligations under this Agreement;
(d) the Escrow Agent will not be required to make any determination or
decision with respect to the validity of any claim made by any Party or of
any denial thereof but will be entitled to rely conclusively on the terms
hereof and the Amended and Restated Loan Agreement and the documents
tendered to it in accordance with the terms hereof and the Amended and
Restated Loan Agreement;
(e) the duties and obligations of the Escrow Agent hereunder are purely
ministerial in nature and the Escrow Agent will not be liable for any error
of judgement, or for any act done or step taken or omitted by it in good
faith, or for any mistake of fact or law, or for anything which it may do
or refrain from doing in connection herewith, except for its own
negligence, wilful default or dishonesty;
(f) upon the Escrow Agent's delivery of the Source Codes and the Licence
Agreement to Imagis or Xxxxxxxx in accordance with the provisions of this
Escrow Agreement, the Escrow Agent will be automatically and immediately
released from all duties and obligations under this Agreement to any Party
and to any other Person with respect to any of the Source Codes or the
Licence Agreement held in escrow under this Agreement;
(g) the Escrow Agent may, if the Escrow Agent deems it necessary or
desirable, seek advice and directions from the Supreme Court of British
Columbia with respect to its duties and obligations hereunder; and
(h) the duties and obligations of the Escrow Agent hereunder will at all
times be subject to the orders or directions of a court of competent
jurisdiction in the Province of British Columbia.
Consents and Waivers
3.5 Escrow Agent will have no duties except as expressly set forth herein, and
will not be bound by any notice of a claim or demand with respect thereto, or
any waiver, modification, amendment, termination or rescission of this
Agreement, unless received by it in writing, and executed by both Imagis and
Xxxxxxxx, and, if Escrow Agent's duties, obligations or liabilities herein are
affected, unless it gives its written consent thereto.
Interpleader
3.6 The Escrow Agent may, at any time, give notice to Imagis and Xxxxxxxx that
the Escrow Agent is terminating its duties and obligations hereunder, and
(a) at any time more than 30 days after it gives such notice; and
(b) before Imagis and Xxxxxxxx jointly direct the Escrow Agent as to
delivery of the Source Codes and the Licence Agreement in its possession to
some other Person,
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may deliver the Source Codes and the Licence Agreement in its possession to
the Supreme Court of British Columbia by way of interpleader and will
thereupon be released of its duties and obligations hereunder. Imagis and
Xxxxxxxx agree that in no event will the Escrow Agent be held liable for
any failure to deliver all or a portion of the Source Codes and the Licence
Agreement during the period referred to in ss.3.6(a).
Indemnity
3.7 Imagis and Xxxxxxxx will jointly and severally indemnify and save harmless
the Escrow Agent from and against any and all actions, suits, investigations,
proceedings or claims of every kind (each a "Claim") and any and all expenses,
losses, damages or liabilities, including reasonable attorney's fees and charges
incidental thereto (collectively "Liabilities") as and when incurred or
sustained, and the reasonable fees and expenses incurred by Escrow Agent in
investigating or defending a Claim to which it may become subject or otherwise
involved in any capacity insofar as such Claims or Liabilities arise out of or
are based, directly or indirectly, upon the Escrow Agent's performance of its
duties and obligations hereunder, except to the extent that the Escrow Agent is
guilty of negligence, wilful default or dishonesty in the performance of such
duties and obligations.
Fees and Expenses
3.8 Imagis will reimburse the Escrow Agent of any and all fees and expenses
incurred in connection with the performance of its duties hereunder, including
but not limited to fees and expenses incurred pursuant to ss.3.6.
Escrow Agent's Counsel
3.9 Each of the parties confirms that it is aware that the Escrow Agent is a
corporation that is controlled and directed by Lang Xxxxxxxx which acts as
counsel to Imagis. The Escrow Agent may retain Lang Xxxxxxxx as counsel in the
event of any dispute hereunder.
PART 4
RELEASE FROM ESCROW
Release of Source Codes and Licence Agreement
4.1 Subject to ss.3.2, the Escrow Agent will only release the Source Codes and
the Licence Agreement held by it in escrow to Xxxxxxxx and discharge its
obligations hereunder if
(a) Imagis delivers a notice to the Escrow Agent instructing the Escrow
Agent to release the Source Codes and the Licence Agreement to Xxxxxxxx, or
(b) Xxxxxxxx delivers a notice to the Escrow Agent
(i) requesting the Escrow Agent to release the Source Codes and the
Licence Agreement to Xxxxxxxx,
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(ii) undertaking that the Source Codes released by the Escrow Agent to
Xxxxxxxx will be used only as permitted under the terms and conditions
of the Licence Agreement, and
(iii) certifying that Xxxxxxxx is not in breach of any of its
obligations under the Amended and Restated Loan Agreement and that one
or more of the following circumstances exists and specifying the
particulars of such circumstances:
(A) pursuant to the terms and conditions of the Amended and
Restated Loan Agreement, Xxxxxxxx is entitled to receive the
Source Codes and the Licence Agreement held in escrow by the
Escrow Agent;
(B) an order has been made or a resolution has been passed or a
petition has been filed by Imagis for its liquidation,
dissolution or winding-up;
(C) an execution, sequestration or any other process of any court
has become enforceable against Imagis or any distress or
analogous process has been levied upon any material part of its
property, assets or undertaking and the process has not been
stayed or otherwise suspended by a court of competent
jurisdiction within 30 days and has had, or could have, a
material adverse effect on the business or condition, financial
or otherwise, of Imagis;
(D) Imagis has committed an act of bankruptcy, made an assignment
or bulk sale of its assets, been adjudged or declared bankrupt or
made an assignment for the benefit of creditors, consented to a
proposal or similar action under any bankruptcy or insolvency
legislation applicable to it, commenced any other proceeding
relating to it under any reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute
of any jurisdiction whether now or hereafter in effect, or
consented to any such proceeding; or
(E) a custodian, liquidator, receiver, receiver and manager,
receiver-manager, trustee or any other Person with similar powers
has been appointed for Imagis or in respect of any material part
of its property or assets and has not been discharged within 30
days after the appointment and before any action has been taken
in respect of such property or assets that has, or will,
materially affect the rights of the parties thereto.
Delivery Pursuant to Imagis Request
4.2 Upon receipt of the notice described in ss.4.1(a), the Escrow Agent will,
within 10 days, deliver the Source Codes and the Licence Agreement held by it in
escrow to Xxxxxxxx in accordance with such notice.
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Imagis Notice
4.3 Upon receipt of the notice described in ss.4.1(b), the Escrow Agent will,
within 10 days, deliver a copy of such notice to Imagis. Imagis will, within 20
days after the date it receives a copy of such notice from the Escrow Agent,
notify both the Escrow Agent and Xxxxxxxx of
(a) Imagis' consent to the release of the Source Codes and the Licence
Agreement to Xxxxxxxx, or
(b) Imagis' objection to the release of the Source Codes and the Licence
Agreement to Xxxxxxxx, specifying the particulars of such objection,
provided, however, that if Imagis fails to deliver any such notice to the Escrow
Agent and Xxxxxxxx within the stipulated time period, Imagis will be deemed to
have consented to the release of the Source Codes and the Licence Agreement to
Xxxxxxxx.
Delivery Pursuant to Imagis Consent
4.4 Upon receipt of the notice described in ss.4.3(a) or Imagis being deemed to
have consented to the release of the Source Codes and the Licence Agreement to
Xxxxxxxx as described in ss.4.3, the Escrow Agent will, within 10 days, deliver
the Source Codes and the Licence Agreement held by it in escrow to Xxxxxxxx.
Imagis Objection
4.5 Upon receipt of the notice described in ss.4.3(b), Imagis and Xxxxxxxx will
settle the matter in accordance with Part 5 and the Escrow Agent will continue
to hold the Source Codes and the Licence Agreement in escrow until otherwise
directed by a written direction executed by both Imagis and Xxxxxxxx or by an
award or decision of an arbitrator pursuant to ss.5.4. Imagis may, at any time
either during or prior to the commencement of settlement procedures pursuant to
Part 5, notify the Escrow Agent that Imagis has withdrawn its objection notice
described in ss.4.3(b). Upon receipt of such withdrawal notice the Escrow Agent
will, within 10 days, deliver the Source Codes and the Licence Agreement held by
it in escrow to Xxxxxxxx.
Joint Direction
4.6 Notwithstanding any other provision of this Part 4, but subject to an
applicable award or decision of an arbitrator pursuant to ss.5.4, the Escrow
Agent may act in accordance with a written direction executed by both Imagis and
Xxxxxxxx amending the procedures set forth in this Part 4 or the Escrow Agent's
duties under this Agreement.
Right to Use Following Release
4.7 Upon release of the Source Codes and the Licence Agreement pursuant to
ss.4.4 and ss.4.5, Xxxxxxxx will have the right to use the Source Codes in
accordance with the Licence Agreement.
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Export Restrictions
4.8 Imagis and Xxxxxxxx are jointly and severally responsible for and warrant
compliance with all applicable laws, rules and regulations, including but not
limited to customs laws, import, export, and re-export laws and government
regulations of any country from or to which the Source Codes may be delivered or
released in accordance with the provisions of this Agreement.
PART 5
DISPUTE RESOLUTION
Initiation of Process
5.1 If, at any time, there is a dispute, controversy or claim (each a "Dispute")
between Imagis and Xxxxxxxx with respect to any matter arising out of or
relating to this Agreement, including a matter described in ss.4.5, then the
Party that wishes to initiate a resolution of the Dispute must give notice to
the other Party outlining the nature of the Dispute and the resolution proposed
by the claimant and requiring that such Dispute be resolved pursuant to this
Part 5.
Referral to Executive Officers
5.2 If notice is given pursuant to ss.5.1, Imagis and Xxxxxxxx will each
designate one of its senior officers (each an "Executive Officer") forthwith to
undertake good faith discussions with the other Party with a view to settling
the Dispute.
Officers' Decision Binding
5.3 A resolution reached by such Executive Officers and communicated by them in
writing to each Party will be binding on the Parties and will be implemented.
Submission to Arbitration
5.4 If a Dispute is not resolved between Imagis and Xxxxxxxx within 30 days (or
such longer period as is agreed to by such Parties in writing) after the date of
the notice pursuant to ss.5.1, at any time during the six months immediately
following the expiration of such 30 day (or longer) period, both Imagis and
Xxxxxxxx will be entitled to refer the Dispute to arbitration by a single
arbitrator in accordance with the domestic arbitration rules of the British
Columbia International Commercial Arbitration Centre (the "Rules") as modified
by the provisions herein.
Place of Arbitration
5.5 The arbitration will take place in the English language in Vancouver,
British Columbia.
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Acceptance and Implementation
5.6 Each Party will accept as final and binding and proceed in good faith
diligently to implement the award or decision of the arbitrator.
Legal Proceedings
5.7 A legal proceeding commenced by a Party in respect of an issue or Dispute
that may be arbitrated under this Agreement
(a) will be stayed until the time during which an arbitration may be
initiated has expired or, if an arbitration is initiated, a decision on the
arbitration is delivered or the arbitration process has otherwise ended,
and
(b) will be discontinued following the award or decision of the arbitrator
on the arbitration unless the award or decision concludes the arbitration
and the Dispute remains unresolved.
PART 6
GENERAL PROVISIONS
Governing Law
6.1 This Agreement will be exclusively governed by, and interpreted and
construed in accordance with, the laws prevailing in the Province of British
Columbia and the Parties irrevocably and unconditionally attorn to the exclusive
jurisdiction of the courts of British Columbia and all courts having appellate
jurisdiction thereover.
Notice
6.2 Every notice, request, demand or direction (each a "Notice") to be given
pursuant to this Agreement must be in writing and must be delivered by hand
(e.g. Federal Express or other reputable courier service) or sent by facsimile
transmission or other similar form of written transmission by electronic means,
in each case addressed as follows:
(a) If to Imagis, at:
Imagis Technologies Inc.
0000 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Telecopier: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxx, CFO
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(b) If to Xxxxxxxx, at:
c/o IPM International Portfolio Management Inc.
0000 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Telecopier: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
(c) If to the Escrow Agent, at:
LML&S Services Inc.
1500 - 0000 Xxxx Xxxxxxx Xxxxxx
X.X. Xxx 00000 Xxxxxxxxx, X. X., Xxxxxx
X0X 0X0
Telecopier: (000) 000-0000
Attention: Xxx Xxxxxx
or to such other address or transmission receiving station in British Columbia
as specified by a Party by Notice to the other Parties. Any Notice delivered by
hand or sent by facsimile transmission will be deemed conclusively to have been
effectively given on the day Notice was delivered or sent as aforesaid if it was
delivered or sent on a day that was a Business Day at the place of the intended
recipient, or on the next day that is a Business Day at such place if it was
delivered or sent on a day that was not a Business Day at such place.
Time of Essence
6.3 Time is of the essence in the performance of each obligation under this
Agreement.
Termination and Discharge of Escrow Agent
6.4 This Agreement will terminate and the Escrow Agent will be discharged of its
obligations in any of the following circumstances:
(a) the Source Codes and the Licence Agreement are properly released in
accordance with Part 4;
(b) this Agreement is terminated by the Escrow Agent underss.3.6 or
jointly, by Imagis and Xxxxxxxx and the Source Codes and the Licence
Agreement, if any, are safely in the hands of the new appointee; or
(c) the destruction or corruption of the Source Codes, if any, as a result
of Force Majeure.
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Force Majeure
6.5 No Party will be liable to any other Party for default or delay in the
performance of its obligations under this Agreement to the extent such default
or delay is caused by an occurrence of Force Majeure.
Entire Agreement
6.6 This Agreement, the Licence Agreement and the Amended and Restated Loan
Agreement constitute the entire agreement between Imagis and Xxxxxxxx, and
supersedes every previous agreement, communication, expectation, negotiation,
representation or understanding, whether oral or written, express or implied,
statutory or otherwise among the Parties, with respect to the subject matter of
this Agreement. The Escrow Agent is not a party to, and is not bound by, any
provisions which may be evidenced by, or arise out of, any agreement other than
as set forth in the express provisions of this Agreement.
Waiver and Consent
6.7 No delay or failure by a Party to exercise any of its rights under this
Agreement constitutes a waiver of any such right. No consent or waiver, express
or implied, by a Party to, or of any breach or default by another Party of, any
or all of its obligations under this Agreement will,
(a) be valid unless it is in writing and stated to be a consent or waiver
pursuant to this ss.6.7,
(b) be relied upon as a consent to or waiver of any other breach or default
of the same or any other obligation,
(c) constitute a general waiver under this Agreement, or
(d) eliminate or modify the need for a specific consent or waiver pursuant
to this ss.6.7 in any other or subsequent instance.
Severability
6.8 If any provision of this Agreement is at any time unenforceable or invalid
for any reason, it will be severable from the remainder of this Agreement and,
in its application at that time, this Agreement will be construed as though such
provision was not contained herein and the remainder will continue in full force
and effect and be construed as if this Agreement had been executed without the
invalid or unenforceable provision.
Amendments
6.9 This Agreement may not be amended except in writing signed by each Party.
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Further Assurances
6.10 Each Party will execute and deliver such further agreements and other
documents and do such further acts and things as another Party reasonably
requests to evidence, carry out or give full force and effect to the intent of
this Agreement.
No Agency
6.11 Each Party is an independent contractor and nothing herein will, or will be
deemed to, create any employer/employee, agency, partnership or joint venture
relationship among the Parties or to give any Party any right or authority to
act as the agent of, assume or create any obligation on behalf of or to pledge
the credit of any other Party.
Assignment
6.12 This Agreement and the individual rights and obligations hereunder may not
be transferred or assigned in whole or in part by any Party, whether by
contract, operation of law or otherwise, without the consent of each other
Party, and any purported transfer or assignment without such consent will be
null and void. Nothing in this ss.6.12 will be deemed to limit or restrict the
Escrow Agent's rights under ss.3.6.
Enurement
6.13 This Agreement and the provisions hereof will enure to the benefit of and
be binding upon the Parties and their respective successors and permitted
assigns.
Survival
6.14 All rights and obligations of the Parties occurring before the effective
date of termination of this Agreement and all rights and obligations expressly
stated to continue after, or accrue as a result of, the termination of this
Agreement are separate and distinct rights and obligations binding on the
Parties, will survive its termination and will continue in full force and effect
and nothing herein will affect the enforceability of such provisions. For
greater certainty, the premature termination of this Agreement will not affect
the rights and obligations of any Party under ss.2.9, ss.2.10, ss.3.7, ss.3.6
and Part 6.
- 16 -
Counterparts
6.15 This Agreement may be executed in any number of counterparts, in original
form or by facsimile, each of which will together, for all purposes, constitute
one and the same instrument, binding on the Parties, and each of which will
together be deemed to be an original, notwithstanding that each Party is not a
signatory to the same counterpart.
IN WITNESS WHEREOF this Agreement has been executed by the Parties as of the
Effective Date.
Signed, Sealed and Delivered by XXXXX )
XXXXXXXX in the presence of: )
)
Signed "Xxx Xxxxxxx" )
------------------------------------ ) Signed "Xxxxx Xxxxxxxx"
Witness (Signature) ) -----------------------------------
) XXXXX XXXXXXXX
Xxx Xxxxxxx )
------------------------------------ )
Name (please print) )
)
0000 Xxxxxxx Xxxxx Xxxxx )
------------------------------------ )
Address )
)
Surrey, B.C. )
------------------------------------ )
City, Province )
)
Businessman )
------------------------------------ )
Occupation )
IMAGIS TECHNOLOGIES INC.
Per: Signed "Xxxxx Xxxxx"
----------------------------
Authorized Signatory
LML&S SERVICES INC.
Per: Signed "Xxxxx Xxxx"
----------------------------
Authorized Signatory
SCHEDULE A
to
ESCROW AGREEMENT
Source Codes
1. The source codes pertaining to all software originally engineered by
Imagis, including but without limiting the generality of the foregoing, the
software known as:
(a) Computerized Arrest and Booking Systems ("CABS"); and
(b) Image Detection and Biometric Facial Recognition Software ("ID-2000").
2. The source codes pertaining to the Intacta code.
