MARKETING AGREEMENT
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This Marketing Agreement (this "Agreement"), dated December 6, 2011 (the "Effective Date"),
is between Time Systems International, ('TSI") located at 000 Xxxxx Xxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000 and Eclipse Identity Recognition Corp. ("EclipseIR") located at
00000 Xxx Xxxxx Xxxxxxxxx, XXX 000, Xxx Xxxxx, Xxxxxxxxxx 00000. TSI and EclipseIR are
sometimes individually referred to as "Party" and collectively referred to as the "Parties."
WHEREAS, TSI and EclipseIR desire to establish a strategic Marketing Agreement for the
Access Control and Time and Attendance Markets whereby TSI will promote EclipseIR's
products to specifically named potential distributors, and thereafter, specifically named potential
end users in those particular Markets. This Agreement may be modified from time to time in the
form of a written instrument signed by both Parties (an "Amendment"). The terms of any
Amendment executed during this Agreement will be subject to the terms of this Agreement
unless otherwise stipulated in the Amendment.
1. SCOPE OF ACTIVITIES. The Parties will undertake the activities listed in Appendix A and
B.
2. RECORDS/AUDIT/REPORTING/TRACKING OF USERS/BILLING. The tracking of
TSI generated sales will be reported to EclipseIR by way of Purchase Orders and by copy of
TSI's billing to any distributor or end user. TSI shall maintain current, complete, and accurate
records of all customer transactions pursuant to the performance of this Agreement. At any time
during the Agreement term, EclipseIR may request and audit TSI’s invoices that reasonably
relate to the transactions contemplated by this Agreement.
3. LICENSES. EclipseIR grants to TSI a non-exclusive, non-transferable, royalty-free license to
use EclipseIR's trade names, trademarks, logos and service marks (collectively "Marks") in
connection with the performance of this Agreement. The Parties have previously entered into and
incorporate herein, a Confidentiality Agreement.
4. TERM AND TERMINATION. This Agreement will commence in force on the Effective
Date and will continue for a term of three (3) years, unless terminated earlier pursuant to the
provisions of this Agreement. By the end of year three (3), this agreement shall be extended upon
TSI achieving the Milestones in Appendix B.
a. Effect of Termination. Termination shall not relieve either Party of any obligations
incurred prior to the termination. Upon termination, TSI agrees to (i) cease all promotions of
EclipseIR's services; (ii) cease all use of EclipseIR's technology and Marks; and (iii) cease
making EclipseIR's services available in or through a website or otherwise, and upon request, to
promptly destroy or return all copies (electronic or written) of the content, technology, and any
other confidential or proprietary information in TSI's possession or control. TSI shall return the
original and all adaptations or copies of EclipseIR’s software to EclipseIR or destroy them to the
satisfaction of EclipseIR. Without limiting the foregoing in any way, the Parties agree that
following termination, EclipseIR will cease to make their products/services available directly to
the users shown in Appendix C subscribing to the product/service prior to termination. EclipseIR
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shall further offer to provide technical support solely to TSI for anyone listed in Appendix C and
any amendment thereto at an annual rate of 10% of the initial sales price.
b. Termination with Cause. Either party has a right to terminate this Agreement in its
entirety for cause by giving written notice to the other party upon (i) the institution by or against
either party of insolvency, receivership, or bankruptcy proceedings, or any other proceedings for
the settlement of such party’s debts, (ii) either party making an assignment for the benefits of any
of its creditors, or (iii) either party’s dissolution or other cessation of its then current business.
c. This section and sections 5, 6, 7, 8, 9 shall survive the termination or the expiration of
this Agreement.
5. WARRANTIES; DISCLAIMER.
a. Warranties. Each Party represents and warrants to the other that: i. It has full
corporate right and authority to enter into this Agreement and to perform the acts required of it
hereunder;
i.
The execution of this Agreement by such Party and the performance by
such Party of its obligations and duties hereunder do not and shall not violate any other
Agreement to which such Party is a Party or by which it is otherwise bound;
ii.
When executed and delivered by such Party, this Agreement shall
constitute the legal, valid and binding obligation of such Party, enforceable against such Party
according to its terms;
iii.
Such Party acknowledges that the other Party makes no representations,
warranties or Agreements related to the subject matter hereof that are not expressly specified in
this Agreement.
6. INDEMNIFICATION.
a. Duty to Indemnify. Each Party will indemnify, defend, and hold each other harmless
from any and all costs, expenses (including reasonable attorneys’ fees), losses, damages or
liabilities incurred insofar as costs, expenses, losses, damages or liabilities are based on a claim
that either Parties’ Marks infringe on any intellectual property rights of a third party.
b. Indemnification Procedures. The indemnified Party shall provide the indemnifying
Party with prompt written notice of any such claim. The indemnifying Party shall have sole
control and authority with respect to the defense and settlement of any such claim. The
indemnified Party shall cooperate fully with the indemnifying Party, at the indemnifying Party’s
sole cost and expenses, in the defense of any such claim.
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7. CONFIDENTIALITY.
a. Protection of Information. The parties acknowledge they have entered into a prior
Confidentiality Agreement which is hereby reaffirmed and made a part herein by reference
thereto. Each Party agrees to retain in confidence at all times and to require its employees,
consultants, professional representatives and agents to retain in confidence all information
disclosed by the other Party. Each Party shall only use the other’s information solely for the
purpose of performing obligations under this Agreement, and only disclose the Confidential
Information on a need-to-know basis, provided that, such Party shall be liable for the acts of any
third party who obtains the Confidential Information from such Party. Each Party shall take all
necessary precautions in handling the Confidential Information of the other party and limit
disclosures on a strict need-to-know basis. Further, the receiving Party may disclose information
to the extent ordered to be disclosed by subpoena, other legal process or requirement of law, after
first giving the disclosing Party a reasonable opportunity to contest such disclosure requirement.
EclipseIR specifically agrees that the distributors listed in Appendix C and any amendment
thereto are TSI’s exclusive and designated prospects. EclipseIR shall not have a direct business
relationship with any entity listed in Appendix C during the performance of this Agreement or
thereafter.
b. Injunction Relief. Each Party acknowledges and agrees that any use or disclosure of
Confidential Information by the Party in a manner inconsistent with the provisions of this
Agreement may cause the other Party harm which will not be compensable by monetary
damages alone and, accordingly, such other Party will, in addition to other available legal or
equitable remedies, be entitled to seek an immediate injunction restraining the disclosing Party
from committing or continuing to commit a breach. A Party may avail itself of injunctive relief
in addition and without prejudice to any other remedies available to it.
c. Survival. This Section will survive the termination or expiration of this Agreement.
8. LIMITATION OF LIABILITY. THE PARTIES AGREE THAT IN NO EVENT SHALL
TSI OR ECLIPSEIR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES OF
ANY NATURE, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE
BREACH OF THIS AGREEMENT OR ANY EXPIRATION OR TERMINATION OF THIS
AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF
CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR
OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL EITHER PARTY (I) BE LIABLE FOR LOST PROFITS
OR LOST BUSINESS OPPORTUNITIES ARISING OUT OF THE TERMINATION OF THIS
AGREEMENT; OR (II) BE LIABLE FOR DAMAGES OR ALLEGED DAMAGES
HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY,
THAT EXCEED THE AMOUNTS REQUIRED TO BE PAID BY EITHER PARTY TO THE
OTHER HEREUNDER. THE PARTIES FURTHER AGREE THAT FOR AMOUNTS
PAYABLE
UNDER SECTION
6 (INDEMNIFICATION) OR SECTION 7
(CONFIDENTIALITY) HEREUNDER, EITHER PARTY’S TOTAL LIABILITY UNDER
THIS AGREEMENT SHALL NOT EXCEED THE SUM OF $5,000. THE FOREGOING
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NOTWITHSTANDING, AS BETWEEN THE PARTIES AND ANY PARTNER AND/OR
VENDOR OF THE RESPECTIVE PARTIES, NOTHING IN THIS AGREEMENT SHALL
CONFER ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY,
CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES OF ANY NATURE
FOR ANY REASON BY THE PARTIES AGAINST SUCH PARTNER AND/OR VENDOR
USED BY THE PARTIES TO PROVIDE AND/OR SUPPORT THE PARTY’S RESPECTIVE
PRODUCTS AND/OR SERVICES.
9. MISCELLANEOUS.
a. Notices. All notices that either Party is required or may desire to serve upon the other
Party shall be in writing and addressed to the Party to be served at the respective addresses set
forth herein and shall be sent via U.S. Express Mail or private express courier service with
confirmed receipt and will be effective upon receipt at the addresses listed herein (unless the
Parties are notified in writing of a change in address, in which case notice will be sent to the new
address).
b. Entire Agreement. This Agreement constitutes the entire understanding and
agreement between the parties with respect to the transactions contemplated, and supersedes any
and all prior or contemporaneous oral or written representation, understanding, agreement or
communication between the Parties concerning the subject matter hereof. Neither Party is relying
upon any warranties, representations, assurances, nor inducements not expressly set forth herein.
c. Amendments and Severability. No amendment or modification of this Agreement,
nor any waiver of any rights, will be effective unless assented to in writing by the party to be
charged, and the waiver of any breach or default will not constitute a waiver of any other right
hereunder or any subsequent breach or default. In the event that any provision of this Agreement
should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained shall not,
in any way, be affected or impaired thereby.
d. Assignment. This Agreement shall be binding upon and inure to the benefit of each
Party’s successors and assigns. Neither Party may assign this Agreement, in whole or in part,
without the other Party’s prior written consent; provided, however, that the sale of any portion of
the assets of either Party, or any of its subsidiaries, its acquisition by merger into another
company, shall not be deemed an assignment of this Agreement by such Party. Provided further,
that the Party to be sold or acquired in accordance with the previous sentence must provide
written notice to the other Party of any such sale or acquisition within forty-five (45) calendar
days of the closing. Any attempt to assign this Agreement other than in accordance with this
provision shall be null and void.
e. Independent Contractors. The Parties to this Agreement are independent contractors.
Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have
any right, power or authority to enter into any agreement for or on behalf of, or incur any
obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be
interpreted or construed to create an association, joint venture, partnership, franchise, sales,
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representative or employment relationship between the Parties or to impose any partnership
obligation or liability upon either Party. Each Party shall bear its own costs and expenses in
performing this Agreement.
f. Governing Law. This Agreement shall be construed and interpreted in accordance to
the laws of the State of California, United States of America. Any dispute, controversy, claim, or
difference arising out of, or in connection with, or resulting from this Agreement, its application
or interpretation, or a breach thereof, which cannot be settled amicably by the parties, shall be
resolved definitively and exclusively by arbitration under the Rules of Procedure of the
American Arbitration Association (the “Rules”), then prevailing for which arbitration shall
determine location for arbitration. Arbitration shall be by a single arbitrator chosen by the parties,
provided that if the parties fail to agree and to appoint such single arbitrator Marketing
Agreement within thirty (30) calendar days after demand for arbitration, then the arbitrator shall
be chosen in accordance with the Rules. It is agreed that all documentary submissions,
presentations, and proceedings shall be in the English language. The decision of the arbitrator
shall be final and binding on the parties, and judgment upon any award rendered may be entered
in any court having jurisdiction thereof. In any arbitration arising out of or related to this
Agreement, the arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys’
fees reasonably incurred by the prevailing party in connection with the arbitration. If the
arbitrator(s) determine a party to be the prevailing party under circumstances where the
prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may
award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably
incurred by the prevailing party in connection with the arbitration.
g. Foreign Corrupt Practices Act. IN CONFORMANCE WITH THE UNITED
STATES FOREIGN CORRUPT PRACTICES ACT, TSI SHALL NOT DIRECTLY OR
INDIRECTLY MAKE AN OFFER, PAYMENT, PROMISE TO PAY, OR AUTHORIZE
PAYMENT, OR OFFER A GIFT, PROMISE TO GIVE, OR AUTHORIZE THE GIVING OF
ANYTHING OF VALUE FOR THE PURPOSE OF INFLUENCING AN ACT OR DECISION
OF AN OFFICIAL OF ANY GOVERNMENT (INCLUDING A DECISION NOT TO ACT)
OR INDUCING SUCH A PERSON TO USE HIS INFLUENCE TO AFFECT ANY SUCH
GOVERNMENTAL ACT OR DECISION IN ORDER TO ASSIST DEVELOPER IN
OBTAINING, RETAINING OR DIRECTING ANY SUCH BUSINESS.
h. Export Control Restrictions and Compliances. THE PRODUCTS AND OTHER
ECLIPSEIR SOFTWARE ARE SUBJECT TO THE UNITED STATES EXPORT LAWS AND
REGULATIONS AND OTHER LAWS AND REGULATIONS GOVERNING EXPORTS. TSI
MAY NOT DOWNLOAD THE PRODUCTS OR OTHER ECLIPSEIR SOFTWARE TO
ANOTHER COUNTRY WITHOUT COMPLYING WITH U.S. EXPORT CONTROL LAWS.
TSI SHALL BE SOLELY RESPONSIBLE FOR CLEARING THE PRODUCTS AND OTHER
ECLIPSEIR SOFTWARE FOR EXPORT AND OBTAIN ALL NECESSARY GOVERNMENT
APPROVALS, CONSENTS, LICENSES, PROPER DOCUMENTATIONS OR PERMITS IN
ORDER TO OBTAIN EXPORT LICENSES TO ENABLE TSI TO DOWNLOAD AND USE
THE PRODUCTS, SOFTWARE OR ANY APPLICATION AS IT PERTAINS TO THIS
AGREEMENT. TSI WILL BEAR ALL COSTS ASSOCIATED WITH OBTAINING SUCH
GOVERNMENT APPROVALS, CONSENTS, LICENSES OR PERMITS, CUSTOMS
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APPENDIX A
PARTY RESPONSIBILITIES & PAYMENT TERMS
Time Systems International (TSI) and Eclipse Identity Recognition Corp. (EclipseIR) agree as
follows:
1. TSI shall, within five (5) days of the signing of this Agreement provide EclipseIR with a list of
up to five (5) prospects that are focused specifically on sales within the Time and Attendance
market and/or Access Control markets for purposes of marketing EclipseIR’s Software Engines
(The Products). The names and addresses of these prospects will be delineated on Appendix C
which will be attached to and incorporated into this Agreement. EclipseIR has the right to reject
any of the five (5) prospects within (5) days of notice.
2. TSI shall be required to perform the specified requirements and milestones indicated in
Appendix B which will be attached to and incorporate into this Agreement
3. The prospects listed in Appendix C and additional prospects added to Appendix C by written
Agreement of the Parties are hereby deemed to be the exclusive prospects/distributors of TSI.
EclipseIR agrees that TSI will be the exclusive sales agent for the named prospects delineated in
Appendix C.
4. EclipseIR agrees to provide any necessary assistance in effectuating a sale of the EclipseIR’s
Facial Recognition Software Engine (“The Product”).
5. TSI agrees to market and sell the product to the distributors and to TSI designated end users
shown in Appendix C.
6. The Parties agree the cost of the product shall be $500.00 (five hundred dollars) per copy to
the designated distributors, and that TSI will pay a 25% discounted price to EclipseIR of $350.00
(three hundred fifty dollars) per copy.
7. The price to be paid for the product by distributors may, upon agreement of the Parties, be
negotiated, but in no event shall TSI’s cost per purchase be discounted by EclipseIR by less than
25% of any agreed upon price.
8. The Parties agree all purchase orders and billing to the designated distributors listed on
Appendix C will be performed by TSI.
9. Activities of Time Systems International:
In the event any distributor specifically delineated in Appendix C or as it may be amended were
to purchase EclipseIR or any of its assets, TSI shall be entitled to a broker fee of 6 1/2% of the
purchase price.
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APPENDIX B
PERFORMANCE REQUIREMENTS/MILESTONES WITH COMPLETION DATES
1. TSI shall be granted three (3) years exclusivity in the Time and Attendance Market and/or
Access Control Market.
2. Milestone 1: At the end of the third (3rd ) year, TSI must have achieved sales of at least
fifteen thousand dollars ($15,000) or EclipseIR has the right to terminate this Agreement.
3. Milestone 2: At the end of the fourth (4th) year, TSI must have achieved sales of at least one
hundred thousand dollars ($100,000) within the calendar year or EclipseIR has the right to
terminate this Agreement.
4. Milestone 3: At the end of the fifth (5th) year, TSI must have achieved sales of at least one
hundred thousand dollars ($100,000) within the calendar year. EclipseIR looks forward to
negotiate a continued relationship with TSI.
TSI and EclipseIR
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APPENDIX C
EXCLUSIVE PROSPECTS/DISTRIBUTORS OF TSI
1. Time America / Synel
2. Amano
3. Kronos
4. ADP
5. Schlage
