Exhibit 10.9
VALUE ADDED RESELLER AGREEMENT
This Value Added Reseller Agreement by and between Who? Vision Systems,
Inc., a Delaware corporation ("WVS"), and Integrated Visions, Inc., a Delaware
corporation ("Reseller") is dated as of July 9, 1998 (the "Effective Date").
1. BACKGROUND AND PURPOSE
WVS develops and sells fingerprint sensor module hardware. Reseller is in
the business of integrating fingerprint module hardware and software systems for
resale to its non-retail customers. WVS desires to retain Reseller to market the
WVS Module (as hereinafter defined) in conjunction with other software, hardware
and/or systems integration services offered by Reseller, and Reseller desires to
obtain the right to sell, deliver and install the WVS Module and the right to
license certain computer software embodied in the WVS Module from WVS for
integration into computer systems to be resold to non-retail customers. Reseller
represents to WVS that Reseller possesses experience and technical skill in the
sale, maintenance and support of fingerprint identification computer systems.
In consideration of the mutual covenants and agreements contained in this
Agreement, the parties hereby enter into and agree to be legally bound.
2. WVS Module
As used herein, the "WVS Module" is comprised of :
2.1.1 A finger sensing surface that generates an image of the
fingerprint.
2.1.2 An image sensor that can translate the fingerprint image to an
electronic signal.
2.1.3 Lens-based air gap optics that translate the image from the
finger surface to the sensor.
2.1.4 A signal processing and interface chip, that processes the
fingerprint image into a from suitable for transportation to a
PC host via USB and/or parallel port.
2.1.5 An application processing interface ("API") that runs on the PC
and allows development of PC applications that makes use of the
fingerprint module. The API will include functions for accessing
the
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fingerprint module hardware via USB and/or parallel port and
binary object code fingerprint matching software ("WVS
Software").
3. RESELLER'S DISTRIBUTION
3.1 Distribution Appointment and Rights. WVS hereby appoints Reseller and
Reseller hereby accepts such appointment, on a non-exclusive basis, as a WVS
Reseller of the WVS Module. In connection with such appointment, WVS hereby
grants Reseller the right to market, sell, deliver and install the WVS Module as
a component of and in conjunction with the sale of computer hardware, software
and/or systems of integration services to non-retail end users and to other
third party remarketers in vertical markets, to initially include the healthcare
and financial services markets ("Area of Primary Responsibility"). The intention
of this Agreement is that Reseller may only resell the WVS Module purchased
hereunder as part of a complete business solution for its non-retail customers.
Reseller shall be free to set the pricing of its products and services that
Reseller provides to its customers, including the WVS Module.
3.2 Appointment Non-Exclusive.
3.2.1 The appointment contained herein does not constitute a grant to
resell the WVS Module in any specific territory or geographic area;
however, it is understood that Reseller's sales efforts should be directed
in its Area of Primary Responsibility. WVS reserves the right to market and
solicit sales for the WVS Module directly, through other distributors and
resellers, and through any other channels of distribution at any time and
from time to time, in Reseller's Area of Primary Responsibility or
otherwise, all WVS deems desirable in its sole judgment.
3.2.2 The parties acknowledged and agree that Reseller may obtain WVS
Modules from other established distribution channels for sale to non-retail
end users and to other third party re-marketers.
3.3 Distribution Restrictions and Limitations
3.3.1 Reseller shall not resell the WVS Module as a stand-alone
product, except in specific instances expressly approved in advance in
writing by WVS.
3.3.2 Reseller acknowledges that WVS has granted other parties certain
exclusive rights for sales of the WVS Module: (i) into retail sales
channels, (ii) to manufacturers of computer hardware peripherals, (iii) to
P.C. original equipment manufacturers, and Reseller hereby agrees that it
shall not sell, directly or indirectly, in or to any of the foregoing
channels or entities except in specific instances expressly approved in
writing by WVS. Reseller also
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acknowledges that WVS has granted another party exclusive rights for the sale of
the WVS Module for the purpose of bundling or integrating the same into notebook
computers and hereby agrees that it shall refrain from such activities.
3.3.3 Reseller shall not incorporate WVS Modules into any
configuration except as expressly approved by WVS in writing, which
approval shall not be unreasonably withheld.
3.3.4 Reseller shall not disassemble, reverse engineer or modify the
WVS Module except for a modification which is expressly permitted by
separate authorization from WVS, pursuant to Section 11.1 herein. Reseller
is expressly prohibited from extracting the WVS Software from the WVS
Module or using it in any other application, system or configuration.
3.3.5 Reseller shall not resell the WVS Module into or for use in any
country outside the United States without complying with all U.S. export
control laws and regulations as well as all applicable foreign laws,
regulations and licenses. Such compliance shall be sole Reseller's
responsibility.
3.4 Method of Distribution
3.4.1 Reseller may resell the WVS Module directly through its own
sales force, through independent agents representing Reseller to end user
customers, or through distribution channels established by Reseller with
other third party integration service providers or remarketers.
4. TERM.
4.1 Term. This Agreement shall have a term of three (3) years, commencing
on the effective Date hereof, ("Initial Term") subject to automatic renewals for
additional one year terms thereafter (each a "Renewal Term") unless:
4.1.1. Reseller gives WVS written notice at least 60 days prior to the
end of the Initial Term or any Renewal Term of its intent not to renew; or
4.1.2 Reseller is in material default of any of its obligations under
this Agreement beyond any applicable grace period set forth herein as of
the end of the Initial Term or any Renewal Term; or
4.1.3 WVS gives Reseller written notice at least 60 days prior to end
of the Initial Term or any Renewal Term any one year of its intent not to
renew; or
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4.1.4 On or before September 30, 1999, and annually each September
thereafter, WVS and Reseller fail to establish in writing, and signed by
both parties the quarterly and annual minimum volume requirements for the
subsequent calendar year in the same essential format as contained in
Exhibit A 2.(a). In such case, termination shall be effective as of January
1 of the next following year;
4.2 Early Termination. This Agreement may be terminated prior to the end of
the Initial Term or any Renewal Term pursuant to Section 16 below. Any
expiration or termination shall not modify or alter the requests or obligations
of the parties which arose prior to such termination or expiration.
5. PURCHASES
5.1 Purchase Orders. Individual purchase orders of the Reseller issued to
WVS shall be effective upon acceptance thereof by WVS. If WVS does not reject in
writing a purchase order within ten (10) days of its receipt, then such purchase
order shall be deemed to have been accepted. Notwithstanding the foregoing, each
purchase order shall specifically incorporate the terms of this Agreement, and
any terms contained in a purchase order which conflict with or are inconsistent
with the terms of this Agreement shall not be valid unless specifically accepted
in writing by WVS. Purchase orders must specify the identity and volume of WVS
Modules, and the date the WVS Modules ordered thereunder should be received at
Reseller's designated location. Any change to a previously accepted purchase
order, as of the date changed, will be treated as new purchase order submitted
for acceptance unless Reseller is notified in writing otherwise by WVS. WVS
shall not be required to accept any order if Reseller is delinquent in payment
or fails to comply with the conditions relating to payment under this Agreement.
5.2 Delivery. WVS will endeavor to deliver WVS Modules on the date set
forth in the accepted purchase order, F.O.B. point of shipment. WVS will not be
liable for its failure to meet the delivery date, provided WVS uses commercially
reasonable efforts to do so. Notwithstanding the provisions of Section 6.7,
Reseller may cancel without charge or penalty its purchase order for any items
not shipped within 30 days after the requested delivery date. In the absence of
a specific written request in the purchase order regarding mode of
transportation, WVS will arrange for shipment and insurance by appropriate
carrier, the cost of which shall be reimbursed to WVS by Reseller. Delivery of
the WVS Module sold hereunder shall be made to the address set forth in
Reseller's Purchase Order. All freight transportation, and handling charges
shall be paid by Reseller.
5.3 Title and Risk of Loss. Title and risk of loss, damage or destruction
to the WVS Modules will pass to Reseller at the point of shipment specified in
the purchase order. Title to the WVS Software embodied in the WVS Module shall
remain with WVS at all times.
6. PURCHASE PRICE AND PAYMENT TERMS
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6.1 Purchase Price. The purchase price payable by Reseller for each WVS
Module shall be the lesser of:
6.1.1 The Reseller Base Price (as defined in Exhibit A attached
hereto) in effect on the date WVS accepts Reseller's purchase order, plus
the applicable xxxx-up based on the volume ordered,
[xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx]; or
6.1.2 [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx]
6.1.3 In addition, the purchase price may include the following
additional charges, if any:
6.1.3.1 [xxxxxxxxxxxxxxxxxxx]; and
6.1.3.2 [xxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx].
6.2 Proposal Pricing Concessions. WVS will consider any written proposal
for pricing concessions consistent with an identified, specific opportunity or
proposal, and Reseller's demonstrated success in similar/previous situations.
6.3 Product Modification Pricing. Reseller shall make no modifications to
the WVS Module unless authorized to do so in writing by WVS. The price and
delivery schedule for any approved modification to WVS Modules, pursuant to
Section 11 below, shall be at a price and delivery schedule to be mutually
agreed upon by Reseller and WVS. Reseller shall make no modifications to the WVS
Module unless authorized to do so in writing by WVS.
6.4 Invoices and Payment. WVS will submit an invoice for purchase price
payable with each delivery of the WVS Modules. Invoiced amounts will be due and
payable on the terms set forth in Exhibit A.
[Confidential Treatment requested for redacted portion of document]
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6.5 Taxes. Reseller shall pay all charges, duties and taxes including
federal, state, country or other local taxes however designated, levied or based
upon prices hereunder, or on the Agreement, or on the WVS Module, or on their
manufacture, sale or use or any taxes or amounts in lieu thereof or payable by
WVS with respect to the foregoing, exclusive of taxes based on WVS's net income
which shall be borne by WVS. Any personal property taxes assessable on the WVS
Module before title passes to Reseller shall be borne by WVS. Upon demand,
Reseller shall reimburse WVS or its assignees for the amount of any such taxes
or other charges which are the obligation of Reseller hereunder, regardless of
when and by whom payable. It is Reseller's sole responsibility to provide WVS
with resale or other tax exemption certificates.
6.6 Price Changes. WVS will give Reseller at least 30 days advance written
notice of the effective date of all changes to the Reseller Base Price, which
price changes, will apply to all WVS Modules ordered by Reseller under purchase
orders submitted after the effective date of the change.
6.7 Cancellations. Purchase orders or portions thereof may be canceled
within 15 days of the issuance date at no charge to Reseller.
6.8 No Set-off. Reseller shall have no right to set off any amounts against
the purchase prices payable to WVS pursuant to Section 6.1.
7. GRANT OF LICENSE
7.1 License.
7.1.1 Reseller is granted a non-exclusive license to use and
distribute the WVS Software only in conjunction with the WVS Modules
purchased under this Agreement. Reseller is granted no title or ownership
rights to the WVS Software, which rights shall remain in WVS or WVS's
suppliers as appropriate.
7.1.2 Reseller and any successor to Reseller's title in the WVS Module
shall have the right, (a) to assign this license to any party who acquires
legal title to the WVS Module, and (b) to sublicense the rights granted by
this license to any party who subsequently acquires the right to use the
WVS Module, provided that any such other party (either assignee or
sublicensee) agrees in a writing addressed to WVS to abide by the terms and
conditions of this license in full.
7.1.3 Reseller's obligations under this license shall survive the
termination of this Agreement, regardless of the cause of termination.
7.2 U.S. Government Restricted Rights Legend. The WVS Software is
commercial computer software and documentation, and will be marked with the
following legend: Use, duplication or disclosure by the U.S. Government is
subject to restrictions as set forth in subdivision (b)(3)(ii)
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and (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of
DFARS 252.227- 7013 and as set forth in FAR 52.227-19(a)-(d).
7.3 Proprietary Property. Reseller acknowledges that WVS Software
constitutes proprietary and confidential information of WVS and its licensors.
Reseller shall use reasonable care to protect the confidentiality of the WVS
Software
8. RESELLER OBLIGATIONS
8.1 End-User Agreements. In connection with Reseller's sales of the WVS
Modules to its third party reseller and remarketers, and end-user customers,
Reseller's written agreements with such parties shall include provisions for the
sublicensing of the WVS Software embodied in the WVS Modules, which sublicensing
terms and conditions shall be consistent in all respects with the WVS Software
licensing provisions set forth in this Agreement.
8.2 Marketing Efforts. Reseller shall use its best efforts to promote and
market the WVS Module. Reseller shall promote the WVS Module in accordance with
the marketing materials, documentation and other materials provided by WVS, if
any. Reseller shall not, and shall ensure that its sale representatives, agents
and third party re-marketers do not, make claims or assertions regarding the WVS
Module that are not supported by such WVS-supplied materials or verified by WVS.
8.3 Customer Installation and Training. Reseller shall be responsible for
ensuring that the systems it proposes to sell to its end user customers meet the
stated needs of the customers and that the customers have or obtain the proper
facilities and hardware/software environment to meet the operational
requirements set forth in WVS's documentation.
8.4 Sales Forecasts. Upon execution of this Agreement, Reseller shall give
WVS a six month unit sales forecast. Reseller shall update the sales forecast
every month thereafter with a rolling six month forecast. The rolling six month
sales forecast provided by Reseller shall not impose any liability on Reseller
to purchase specific quantities of WVS Modules.
8.5 Compliance with Law. Reseller shall at all times comply with all
applicable federal, state, local and foreign laws and regulations in its conduct
under this Agreement.
8.6 Insurance. During the term of this Agreement, Reseller shall maintain a
minimum of $1 million general liability insurance and provide WVS with proof of
such insurance.
9. OBLIGATIONS OF WVS
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9.1 Training. WVS may offer Reseller such training programs as WVS believes
are necessary to support the marketing or technology of the WVS Module. Charges
for this training shall be at rates established by WVS.
9.2 Technical Support. WVS shall make available reasonable amounts of
pre-sale technical and marketing assistance to Reseller as a backup to
Reseller's primary marketing efforts and to enable Reseller to integrate the WVS
Module into Reseller's products. Reseller shall pay for such services on a time
and materials basis at WVS than prevailing rates and will reimburse WVS for all
reasonable travel expenses incurred by WVS personnel in providing such services.
9.3 Order Fulfillment. WVS shall use commercially reasonable efforts to
fulfill all accepted purchase orders within the requested delivery dates, and
shall promptly notify Reseller of any known or anticipated delays.
10. CONFIDENTIALITY. Each of Reseller and WVS, and as required their consultant
and suppliers, has signed or will sign a Confidentiality Agreement which shall
apply to all confidential information supplied by either party to the other in
connection with this Agreement.
11. PROPRIETARY RIGHTS.
11.1 Modifications by Reseller. Reseller shall not, without WVS prior
written authorization, modify the WVS Module. If WVS authorizes Reseller to make
a modification, Reseller agrees to assign all of its right, title and interest
in such modification to WVS and WVS agrees to grant Reseller a non-exclusive,
worldwide, perpetual, royalty-free license to such modification for
incorporation into Reseller's products.
11.2 Modifications by WVS.
11.2.1 WVS reserves the right to change, modify or discontinue any
version of the WVS Module at any time. WVS shall provide Reseller with
written notice of all material product changes at least 90 days prior to
such change. Notwithstanding the foregoing, WVS shall remain obligated to
fulfill all accepted purchase orders placed by Reseller prior to the date
of such notice and to fulfill the purchase requirements reflected in
Reseller's then applicable six month rolling forecast as of the date of
such notice pursuant to Section 8.4.
11.2.2 Reseller may request in writing that WVS make modification(s)
to WVS Modules purchased under this Agreement. Such requested modifications
will be made at the sole discretion of WVS. If the effect of such
modifications increase (or decreases) the cost of the WVS Module, the
purchase price of the WVS Module may increase (or decrease) pursuant to
Section 6.1.3.3.
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11.3 Third Party Infringement. WVS reserves the sole and exclusive right at
its discretion to assert claims against third parties for infringement or
misappropriation of its intellectual property rights in the WVS Module.
12. LIMITED WARRANTY.
12.1 Pass Through Warranty. WVS agrees to pass through to Reseller and its
customers all product warranties that WVS receives from the manufacturers of the
WVS Modules. WVS further agrees to provide to Reseller in writing such
warranties at any time at the request of Reseller and on or about January 1 of
each year.
12.2 Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH
IN SECTION 12.1 ABOVE, WVS MAKES NO WARRANTIES OR REPRESENTATIONS TO RESELLER OR
TO ITS END-USER CUSTOMERS WITH RESPECT TO THE WVS MODULES, THE PERFORMANCE OF
THE WVS MODULES, THE DOCUMENTATION PROVIDED WITH RESPECT TO THE WVS MODULES, OR
ANY SERVICES PROVIDED HEREUNDER. WVS EXPRESSLY DISCLAIMS ANY AND ALL OTHER
WARRANTIES OF ANY KIND, CONCERNING THE WVS MODULES, DOCUMENTATION AND SERVICES,
WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER EXPRESS OR
IMPLIED WARRANTY, WHETHER ARISING IN LAW, CUSTOM, CONDUCT OR OTHERWISE.
12.3 Exclusive Remedy. Reseller's sole and exclusive remedy for warranty
claims pursuant to Section 12.1 relating to the WVS Module (other than
infringement claims pursuant to Section 13), shall be, at WVS' option, repair or
replacement of the WVS Module(s).
12.4 Neither Reseller nor its sales representatives, agents or third party
resellers or remarketers has the authority to make or bind WVS to any
affirmation, warranty, guarantee, or representation, whether written or oral,
concerning the WVS Module other than the limited warranty stated in Section
12.1.
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13. INDEMNITIES.
13.1 Infringement Indemnity.
13.1.1 Duty to Indemnify and Defend. WVS will indemnify and defend
Reseller and its permitted customers representatives, agents and third
party resellers and remarketers (the "Indemnified Parties") against all
loss, cost and expense, (including, without limitation, reasonable
attorney's fees and legal costs) arising from any third party claim that
any WVS Module furnished and used within the scope of this Agreement
infringes a patent, copyright, or trade secret right; provided that the
Indemnified Parties shall promptly, upon the Indemnified Parties (a)
promptly notifying WVS in writing of any such claim made against (b)
permitting WVS (or its licensor) to take sole control of the defense and
all related settlement negotiations; and (c) providing WVS with reasonable
assistance, information, and authority necessary to perform the above.
Failure to provide prompt notice of any claim shall not relieve WVS of its
indemnity obligation except to the extent WVS's ability to defend such
claim is materially adversely affected.
13.1.2 Limitations. WVS shall have no liability for any claim to the
extent the claim is based on the combination, operation, or use of any WVS
Module furnished under this Agreement with programs, data, equipment, or
materials not provided to Reseller by WVS if use of the WVS Module alone
would not infringe.
13.1.3 Remedies. In the event the WVS Module or a portion thereof is,
or in WVS's opinion is likely to be, held to infringe, WVS shall have the
right at its sole option and expense to (a) modify the WVS Module or
portion thereof to be noninfringing (b) replace the same with
non-infringing fingerprint module which equals or exceeds the performance
of the WVS Module being replaced or, (c) obtain for Reseller and its
permitted customers the right to continue using and sublicensing the WVS
Module. THE FOREGOING ARE WVS' SOLE AND EXCLUSIVE OBLIGATIONS, AND THE
INDEMNIFIED PARTIES SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO
INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
13.2 Distribution Indemnity. Reseller agrees to indemnify WVS against any
third party claims by third party remarketers, and end user customers of
Reseller or any other third party against WVS for loss, damage, liability, or
expense (including but not limited to reasonable attorney's fees) arising out of
any breach by Reseller of its obligations under this Agreement; provided that
WVS shall (a) promptly notify Reseller in writing of any such claim made against
WVS; (b) permit Reseller to take sole control of the defense and all related
settlement negotiations; and (c) provide Reseller with reasonable assistance,
information, and authority necessary to perform the above. Failure to provide
prompt notice of any claim shall not relieve Reseller of its indemnity
obligation except to the extent Reseller's ability to defend such claim is
materially adversely affected.
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14. LIMITATIONS OF LIABILITY.
14.1 Limitation of Liability. EXCEPT FOR THE PARTIES OBLIGATION PURSUANT TO
SECTION 10 AND SECTION 13, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
INDIRECT, SPECIAL, COVER, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
(INCLUDING LOSS OF ANTICIPATED REVENUE OR LOSS RESULTING FROM BUSINESS
DISRUPTION), OR DAMAGE TO SYSTEMS, DATA, OR PROGRAMS, EVEN IF THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES RESELLER HEREBY WAIVES SUCH DAMAGES,
EXCEPT FOR ITS LIABILITY UNDER SECTION 13.1, AND UNDER THE CONFIDENTIALITY
AGREEMENT WVS' LIABILITY FOR DIRECT DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED
100% THE AGGREGATE AMOUNTS RECEIVED BY WVS AS PURCHASE PRICE AND TECHNICAL
SUPPORT FEES UNDER THIS AGREEMENT.
14.2 Limitation on Actions. Any action arising from or in connection with
this Agreement must be brought no later than two (2) years after the cause of
action occurred, except that an action for nonpayment may be brought by WVS
within three (3) years of the date of last payment.
14.3 Failure of Essential Purpose. The parties have agreed that the
limitations specified in this Section 14 are a reasonable allocation of risk and
will survive and apply even if any limited remedy specified in this Agreement is
found to have failed of its essential purpose.
15. FORCE MAJEURE
15.1 Any delay or failure of either party to perform its obligations
hereunder shall be excused if and to the extent caused by acts of God, actions
by any governmental authority (whether valid or invalid), fires, floods,
windstorms, explosions, riots, natural disasters, wars, sabotage, labor problems
(including lockouts, strikes and slowdowns), inability to obtain power,
material, labor, equipment or transportation, court injunction or order, or
other causes beyond the reasonable control of the party affected and without its
fault or negligence; provided that written notice within (10) days of such delay
(including the anticipated duration of the delay) shall be given by the affected
party to the other party. Reseller may request that WVS, within ten (10) days of
such request , provide adequate assurances that the delay shall not exceed
thirty (30) days. If the delay lasts more than thirty (30) days or WVS does not
provide adequate assurance that the delay will cease within thirty (30) days,
Reseller may without liability to WVS, but with written notice to WVS, cancel or
modify such portion of any purchase orders affected by such delay and WVS may,
by written notice to Reseller, cancel or modify any commitment to manufacturer
and supply WVS Modules against such purchase order.
16. TERMINATION.
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16.1 Events of Termination. Either party may terminate this Agreement if:
16.1.1 the other party breaches any material term or condition of this
Agreement and fails to cure such breach within 15 days after the due date
(with respect to any payment default) or within 60 days after written
notice for any other default;
16.1.2 the other party files a voluntary petition in bankruptcy,
commences a liquidation and dissolution or voluntarily assigns its assets
for the benefit of creditors: or
16.1.3 the other party becomes the subject of an involuntary petition
in bankruptcy or any proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors which is not
dismissed within 90 days of filing.
16.2 Effect of Termination. Upon termination or expiration of this
Agreement:
16.2.1 Reseller Inventory. Reseller shall be entitled, after
termination, to continue to sell the WVS Modules to the extent reasonably
necessary to use up stocks or inventories of same held by Reseller.
However, WVS reserves the right:
16.2.1.1 to repurchase from Reseller such stock of WVS Modules in
exchange for credit or reimbursement for same;
16.2.1.2 to require Reseller to return to WVS all drawings,
models, designs and pertinent technical material which Reseller has
received from WVS, unless such materials are required for the on-going
service and maintenance commitments of Reseller.
16.2.3 Payment. Any payment obligations incurred by Reseller under
this Agreement prior to such termination shall survive termination of this
Agreement. Upon termination, all amounts due for prior product shipments
shall become immediately payable.
16.2.4 Certification. Reseller will give WVS a written certification
that it has complied with its obligations under this Section 16.2.
16.2.5 No Damages for Termination. NEITHER PARTY WILL BE LIABLE TO THE
OTHER FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL
DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN
ACCORDANCE WITH ITS TERMS. EACH OF WVS AND RESELLER WAIVES ANY RIGHT IT MAY
HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR
EXPIRATION OF THIS AGREEMENT, OTHER THAN AS EXPRESSLY PROVIDED IN THIS
AGREEMENT.
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16.3 Remedies. Should any provision of this Agreement specify a sole and
exclusive remedy, the provisions of that section shall control over this Section
16.3 as to default and remedy in any action at law or equity unless the
defaulting party shall fail to abide by such remedy. If the defaulting party
fails to perform or provide such exclusive remedy, then the other party may
exercise such further or additional remedies as may be provided in this
Agreement or as may otherwise be available at law or in equity. The exercise by
either party of any non-exclusive remedy under this Agreement will be without
prejudice to its other non-exclusive remedies under this Agreement or otherwise.
16.4 Survival. The rights and obligations of these parties contained in
Sections 6 (Purchase Price and Payment Terms), 10 (Confidentiality), 11
(Proprietary Rights), 12 (Limited Warranty) 13 (Indemnities), 14 (Limitations of
Liability), 16 (Termination), and 17.3 (Mediation) will survive the termination
or expiration of this Agreement.
17. GENERAL.
17.1 Assignment. This Agreement will bind and inure to the benefit of each
party and to each party's permitted successors and assigns. Reseller may not
assign this Agreement, without WVS' prior written consent, which shall not be
unreasonably withheld or delayed. Any attempt to assign this Agreement without
such consent will be null and void.
17.2 Governing Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of California.
17.3 Mediation. Except as set forth in Section 17.4 or relating to Section
10, any dispute arising under this Agreement shall be submitted to the following
mediation process:
17.3.1 a dispute will be reduced to writing by the account
representative of the alleging party containing a detailed description of
the dispute and all relevant facts. Such description shall be sent to the
account representative at the receiving party. The receiving party will
respond with an answer or proposed solution to the dispute within ten (10)
business days. If the parties have not reached a mutually agreed upon
resolution by the tenth (10th ) business day following the receipt of the
answer by the alleging party, then
17.3.2 all details of the dispute shall be immediately provided to the
Chief Executive Officer of each party. The CEO or his designee will
endeavor in good faith to resolve the dispute within ninety (90) days, with
each party bearing its costs relating thereto.
17.3.3 if the parties are unable to resolve the dispute pursuant to
Section 17.3.2, then the parties may utilize all available remedies
available at law or equity.
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17.4 Compliance with Law. Each party agrees to comply with all applicable
laws, rules, and regulations in connection with its activities under this
Agreement.
17.5 Severability. If any provision of this Agreement is found invalid or
unenforceable, that provision will be enforced to the maximum extent
permissible, and the other provisions of this Agreement will remain in force.
17.6 Notices. All permitted or required notices under this Agreement shall
be in writing and will be deemed given when delivered personally, when sent by
confirmed facsimile transmission, or when received if sent by certified or
registered U.S. Mail or nationally-recognized express courier, return receipt
requested, to the address shown below or as may otherwise be specified by either
party to the other in accordance with this Section 17.6.
Parties: Who? Vision Systems, Inc.
Attention: Chief Executive Officer
000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Facsimile No. 000-000-0000
Integrated Visions, Inc.
Attention: Chief Financial Officer
00000 000xx Xxxxxxx
Xxxxxxxxx, XX 00000
Facsimile No. 000-000-0000
17.7 Relationship of the Parties. The parties to this Agreement are
independent contractors. There is no relationship of partnership, joint venture,
employment, franchise, or agency between the parties. Neither party will have
the power to bind the other or incur obligations on the other's behalf without
the other's prior written consent.
17.8 Waiver. No failure of either party to exercise or enforce any of its
rights under this Agreement will act as a waiver of such rights or any other
rights. Any waiver granted under this Agreement must be in writing, executed by
the party to be charged with such waiver.
17.9 Entire Agreement. This Agreement and its exhibits and the
confidentiality agreement are the complete and exclusive agreement between the
parties with respect to the subject matter hereof, superseding and replacing any
and all prior written and oral agreements and understanding regarding such
subject matter. This Agreement may only be modified by a written document
executed by both parties.
17.10 Drafting Responsibility. Each party hereto has reviewed, commented
upon and participated in the preparation of this Agreement. In no event will any
provision of this
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Agreement be interpreted to the disadvantage of any party hereto based upon such
party's having been the draftsman of such provision.
17.11 Entirety of Agreement. Headings in this Agreement are for the purpose
of assisting the reader and do not constitute a part hereof.
17.12 Counterparts. This Agreement may be executed in counterparts, which
taken together, shall constitute one Agreement and any party hereto may execute
this Agreement by signing such counterparts.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first written above.
WHO? VISION SYSTEMS, INC. INTEGRATED VISIONS, INC.
BY: /s/ Xxxxxxxxx X. Xxxxxxxxx BY: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- -------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer Title: President
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WVS
Value Added Reseller Agreement
Exhibits
A. Contract Terms
1. Reseller Base Price
2. Minimum Volume Requirements
3. Payment Terms
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EXHIBIT A CONTRACT TERMS
1. "Reseller Base Price" shall mean [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx].
2. Minimum Volume Requirements:
(a) Reseller shall be entitled to [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxx] for as long as it purchases the minimum volume
requirements of the WVS Modules set forth below:
1998 1999
Q4 Q1 Q2 Q3 Q4
------------------------ -------------------- -------------------- ------------------- -------------------
[xxxxx] [xxxxx] [xxxxxx] [xxxxxx] [xxxxxx]
------------------------ -------------------- -------------------- ------------------- -------------------
(b) Notwithstanding as above, Reseller shall not be entitled to most
favored customer pricing if Reseller fails to make the minimum purchases set
forth above in any two consecutive quarters in 1999 and if at the end of the
second consecutive quarter Reseller has not achieved its cumulative 1999 minimum
volumes.
3. Payment Terms:
Payable within 30 days of invoice date. Late payments for WVS Modules and any
related costs or fees will be subject to a charge of 1.0% per month, or at a
rate, annualized, equal to Bank of America Reference Rate (or Prime) plus 2%,
whichever is greater.
[Confidential Treatment requested for redacted portion of document]
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