EXHIBIT 10.5
[PROGINET LOGO OMITTED]
DISTRIBUTOR AGREEMENT 3/23/00
--------------------------------------------------------------------------------
PROGINET CORPORATION
DISTRIBUTOR AGREEMENT
0. Recitals.................................................................3
1. Ownership................................................................3
2. Grant of Rights..........................................................3
3. Term.....................................................................3
4. Invoicing, Fees, and Payment Terms.......................................4
5. Client(s) Software License Agreements....................................5
6. Marketing Responsibilities and Other Duties of DISTRIBUTOR...............6
7. Product Supply, Staffing and Education...................................6
8. Technical Support........................................................6
9. Reports and Audit Rights.................................................6
10. Non-Compete..............................................................7
11. Warranty and Indemnity...................................................7
12. Termination..............................................................7
13. Confidentiality..........................................................7
14. Miscellaneous............................................................8
15. Signatures...............................................................9
Exhibit A Product Descriptions...........................................10
Exhibit B Trademarks of Proginet Corporation.............................10
Exhibit C Territories and Minimal Annual Quota...........................10
Exhibit D Trial License Agreement........................................11
Exhibit E Software and License Fees......................................12
Exhibit F Distributor Program Levels.....................................13
Exhibit G Distributor's Software License Agreement.......................14
Exhibit H DISTRIBUTOR Function Requirements..............................15
Exhibit I Termination Process............................................16
Exhibit J Contract Summary Form..........................................18
0. RECITALS
THIS DISTRIBUTOR AGREEMENT is made as of ------------, by and between
Proginet Corporation, a Delaware corporation, having a principal place of
business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
["PROGINET"], and ____________ a corporation organized under the laws of
------------ having a principal place of business at ------------
["DISTRIBUTOR"].
WHEREAS, PROGINET is the owner and/or lawful licensor of certain PRODUCTS,
including computer software programs, as such term is hereinafter defined;
and
NOW, THEREFORE, in consideration of the mutual promises and covenants as
herein contained, it is agreed between DISTRIBUTOR and PROGINET as follows:
1. OWNERSHIP
A. DISTRIBUTOR agrees that the PRODUCTS, as listed in EXHIBIT A,
TRADEMARKS, as listed in EXHIBIT B, and all ideas, discoveries,
inventions, programs, routines, sequences and works of authorship
embodied therein, and all copyright, trade secret, and other right,
title and interest therein, are the sole property of PROGINET, and
that by this Agreement, DISTRIBUTOR shall gain no right, title or
interest in the PRODUCTS. DISTRIBUTOR shall at all times represent
that the PRODUCTS are the property of PROGINET and that DISTRIBUTOR is
acting as an authorized DISTRIBUTOR for PROGINET.
2. GRANT OF RIGHTS
A. Subject to the provisions of this Agreement, PROGINET hereby grants to
DISTRIBUTOR the following non-exclusive, non-transferable rights in
the TERRITORY (See EXHIBIT C):
1. the right to market and offer for sale licenses of PRODUCTS from
PROGINET to CLIENT(S); 2. the right and license to use the
PRODUCTS for demonstration purposes to the CLIENT(S); and
B. The rights referred to in SECTION 2.A herein above are subject to
DISTRIBUTOR'S meeting of Minimum Annual Revenue Quotas for each
TERRITORY as specified in EXHIBIT C hereto.
C. PROGINET reserves the right to market, license, sell, install and
service the PRODUCTS for any CLIENT, either directly or through a
related person or company in the TERRITORY. DISTRIBUTOR may register a
prospect via a signed Trial License Agreement, attached as EXHIBIT D
with Proginet. That prospect will be "protected" for a period of up to
ninety (90) days.
D. Any dispute between DISTRIBUTOR and any other representative, agent or
DISTRIBUTOR of PROGINET shall be arbitrated by PROGINET, in its sole
discretion, in accordance with the written agreements between Proginet
and its DISTRIBUTOR(s), and PROGINET'S then-current marketing
policies. This relates only to DISTRIBUTOR to DISTRIBUTOR Disputes.
PROGINET'S decision regarding such dispute shall be final and binding
on the parties involved. PROGINET will establish and issue procedures
to be followed by all parties to mitigate conflict between all such
parties.
E. Any dispute, controversy or claim arising out of or in connection with
this Agreement between DISTRIBUTOR and PROGINET, or any breach
thereof, shall be settled exclusively and finally by arbitration in
accordance with the commercial arbitration rules of the American
Arbitration Association, and judgment upon such an award rendered by
the arbitrator may be entered in any court having jurisdiction
thereof. A decision of the arbitrator shall be binding and conclusive
on the parties hereto and shall not be subject to any appeal. All
limitations of liability set forth in this Agreement, shall be binding
and given full force and effect in any such arbitration. The fees and
expenses of any arbitration hereunder, including of the arbitrator,
shall be advanced equally by the parties, and each party shall be
responsible for its own attorneys' fees in connection with an
arbitration. Notwithstanding the foregoing, the parties' final
responsibility for all arbitration fees and related attorneys' fees
and expenses shall be subject to the final decision of the arbitrator.
3. TERM
A. The term of this Agreement shall be valid for an initial period of two
years from the EFFECTIVE DATE. The EFFECTIVE DATE of the contract will
be the Agreement date as depicted in the section above.
4. INVOICING, FEES, AND PAYMENT TERMS
A. PROGINET's recommended prices prevailing at the Effective Date are set
out in EXHIBIT E. The "Recommended Retail Price" ("Fees") shall be
binding upon the DISTRIBUTOR. However, the DISTRIBUTOR shall have the
right to establish a different selling price upon written approval
from PROGINET. Whether the price set with the customer is the
"Recommended Retail Price" or a price that has been pre-approved in
writing by PROGINET, the DISTRIBUTOR will receive the percentage of
the sale as defined in EXHIBIT F. Proginet receives the remaining
balance of the sale.
B. PROGINET shall provide DISTRIBUTOR from time to time with a list of
its recommended prices for the resale of the Products, Maintenance,
and other services ("Recommended Retail Prices").
C. DISTRIBUTOR will handle all invoicing of Customer, with a copy of the
invoice being sent simultaneously to the Customer and to the following
address:
Proginet Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attention: Accounts Receivable
or via FAX to ▇▇.▇▇▇.▇▇▇.▇▇▇▇
The invoice will specify that payment is to be made directly to
DISTRIBUTOR. PROGINET will ▇▇▇▇ DISTRIBUTOR the full license amount
and provide a commission credit as specified in this agreement. Once
payment is received, the DISTRIBUTOR will wire PROGINET's portion to
the following bank account:
Bank Name: CITIBANK NA
Bank Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
ABA Number: ▇▇▇▇▇▇▇▇▇
Account Number:: 234 14 118
Company Name: PROGINET CORPORATION
D. DISTRIBUTOR shall pay PROGINET within ten (10) calendar days after the
date of DISTRIBUTOR's actual receipt of payment from CLIENT(S),
customers, licensees or any other source from which PROGINET is due
monies. DISTRIBUTOR shall make all payments to PROGINET's designated
bank (as stated in 4C) via direct wire transfer in U.S. Dollars.
E. DISTRIBUTOR shall promptly notify PROGINET of all wire transfers by
FAX. Payment is due in cleared funds at PROGINET's designated bank
account.
F. In addition to any other rights belonging to PROGINET, a late fee of
18% per annum is due from DISTRIBUTOR to PROGINET for every month or
fraction thereof, for which payment is late, after the first thirty-
(30) days. If PROGINET brings any proceeding for collection of any
sums due or to enforce any provisions of the Agreement, DISTRIBUTOR
shall pay to PROGINET all expenses incurred by PROGINET in such
collection or enforcement including consul fees, and all monies that
shall be deemed and awarded in such proceedings.
G. If DISTRIBUTOR should fail to remit payment(s) due PROGINET within the
time period specified, PROGINET may, at its sole discretion, provide
DISTRIBUTOR with fifteen (15) days written notice of PROGINET's intent
to terminate this Agreement in accordance with SECTION 12 hereof.
Termination by PROGINET for failure to remit payments(s) shall not
excuse DISTRIBUTOR from its obligations to pay PROGINET the amounts
due to PROGINET.
H. Maintenance fees paid by customer shall be recognized and earned
according to the United States version of General Accepted Accounting
Practices (GAAP), and can not be recognized by either party until they
are earned. In the event of termination of this agreement, the
unearned portion of Distributor portion of the maintenance for each
customer that is held by DISTRIBUTOR must be returned to PROGINET.
I. DISTRIBUTOR shall bear all applicable taxes including but not limited
to franchise sales, use, reason, property, ad valorem, value added,
stamp or other taxies levies, customs, duties or other imposts or fees
(hereinafter collectively called ("tax") levied by the government of
the market areas, and DISTRIBUTOR shall pay any such tax directly.
DISTRIBUTOR shall reimburse PROGINET for any additional local tax paid
by Proginet. This tax clause will apply during and after termination
of this agreement whenever PROGINET must pay and/or collect a tax from
DISTRIBUTOR according to applicable law as interpreted by the revenue
authorities of the taxing unit. DISTRIBUTOR shall hold PROGINET
harmless for any taxes collected and not remitted to appropriate
taxing authorities.
J. In the event that funds are remitted by a customer in a currency other
than U.S. Dollars, the following rules apply:
1) DISTRIBUTOR must remit to PROGINET a U.S. Dollar amount that has
been converted to the specified amount in the signed contract
between the distributor, client, and Proginet, and must use an
exchange rate that falls within 30 days of the day the contract
was signed.
2) If DISTRIBUTOR fails to lock in a rate within the 30 days as
specified above, PROGINET will book the sale based on the rate on
the 30th day following the signed contract. DISTRIBUTOR is
obligated to pay the U.S. Dollar amount based on this locked
rate.
5. CLIENT(S) SOFTWARE LICENSE AGREEMENTS
A. All licenses of PRODUCTS from PROGINET to CLIENT (S) shall be pursuant
to a Software License Agreement between DISTRIBUTOR , CLIENT (S), and
Proginet. , and PROGINET will provide DISTRIBUTOR with a copy of our
standard Software License Agreement (SLA).B. PROGINET recommends that
DISTRIBUTOR use PROGINET's standard Software License Agreement (SLA).
If DISTRIBUTOR does not use PROGINET's Standard Software License
Agreement, then DISTRIBUTOR must sign an Affirmation that states that
the Software License Agreement that is signed is consistent with
PROGINET'S Standard Software License Agreement in all material aspects
as they relate to definitions, ownership, license granted, general
conditions, maintenance, services excluded, fees and payment terms,
liability/warranty, escrow of source code, remedy limitations,
non-disclosure, audit, governing law, compliance with laws,
termination, modification, serviceability, assignment notice, and
other provisions and counterparts. Similar to PROGINET's SLA, the
DISTRIBUTOR'S SLA must be a tri-party agreement that is to be signed
by the Customer, DISTRIBUTOR and PROGINET. This agreement is attached
hereto as EXHIBIT G.
As to local jurisdiction, it is agreed that the contract is in
compliance with all business and legal issues and consistent with
regional software license agreements. Any material diversion from any
of the above sections must be reflected in writing to PROGINET at the
time of license submission to PROGINET. Such license must be approved
by Proginet, in writing, for such agreement to be binding.
C. The SOFTWARE LICENSE FEES and MAINTENANCE FEES at which DISTRIBUTOR
offers the PRODUCTS for license are set forth in a price list annexed
hereto as EXHIBIT E. EXHIBIT may, at any time, be changed by PROGINET
upon thirty (30) days prior written notice to DISTRIBUTOR. Any offers
that are documented to be outstanding will be honored by PROGINET at
the early price levels.
D. PROGINET shall use its best efforts to communicate changes in its
prices, terms, conditions and/or agreement forms to DISTRIBUTOR at
least thirty (30) calendar days in advance of their becoming
effective. In promoting licenses of PRODUCTS in the TERRITORY,
DISTRIBUTOR shall quote to CLIENT (S) only the most recent terms,
conditions and agreement forms, and shall quote PROGINET'S SOFTWARE
LICENSE FEES and MAINTENANCE FEES for the PRODUCTS, separately, from
each other and from DISTRIBUTOR'S quotes for any services as may be
offered by DISTRIBUTOR to the CLIENT (S). Any offers made by
DISTRIBUTOR on the basis of then current pricing shall be binding on
Proginet for a period of ninety (90) days. Any prices which have been
approved by Proginet, that are included in the customer contract for
future upgrades will prevail over Proginet standard pricing.
E. A duplicate executed copy of each CLIENT (S) contract, shall be
promptly furnished to PROGINET by DISTRIBUTOR. DISTRIBUTOR is to
provide a copy of the executed Software License Agreement to PROGINET
within five (5) days of the date of execution.
F. A PRODUCT license shall be considered complete upon:
1. the acceptance and signature by DISTRIBUTOR and PROGINET of an
approved form Software License Agreement signed by the CLIENT;
and
2. PROGINET'S timely receipt of a copy of a fully executed Software
License Agreement; and Contract Summary Form (EXHIBIT J),
including the Distributors Affirmation Form (if applicable), and
3. either (a) PROGINET'S receipt of payment in full of the SOFTWARE
LICENSE FEES and first year's MAINTENANCE FEES or (b) PROGINET'S
written approval of a schedule of payments of such fees
specifically applicable to a particular CLIENT.
G. DISTRIBUTOR shall assist CLIENT (S) in the completion of Software
License Agreements in the standard form provided by PROGINET and shall
instruct CLIENT (S) to make all payments of SOFTWARE LICENSE FEES and
MAINTENANCE FEES directly to DISTRIBUTOR. All Software License
Agreements shall be subject to acceptance or rejection, by PROGINET,
in its sole discretion.
H. Each license granted under the Sales License Agreement authorizes the
Licensee to use a single Licensed Program in machine readable form on
a single Central Processing Unit (CPU) ("Designated CPU") or at a
single workstation ("Seat") as set forth in Schedule "A". If the
Designated CPUs cannot be used because of equipment malfunctions,
Licensee may temporarily use a Licensed Product on another CPU at the
Site. Licensee may, in case of emergency, temporarily use the Licensed
Products on other CPUs at another location, subject to prior written
notice to and written approval by Proginet. Licensee may replace or
upgrade the Designated CPU upon written notice to and approval by
Proginet, contingent upon the following paragraph.
I. If at the time a Designated CPU is replaced or upgraded, a license on
the new Designated CPU would be at a greater cost than would a license
on the original Designated CPU. The Licensee will be invoiced for the
difference between the license fee for the original Designated CPU and
the new Designated CPU.
6. MARKETING RESPONSIBILITIES AND OTHER DUTIES OF DISTRIBUTOR
A. DISTRIBUTOR shall use its best efforts to promote and support licenses
of PRODUCTS in the TERRITORY and to meet or exceed Minimum Annual
Revenue Quotas in accordance with this Agreement.
B. DISTRIBUTOR SHALL PROVIDE ALL OF THE SERVICES SPECIFIED IN EXHIBIT F
FOR THE LEVEL OF MEMBERSHIP SPECIFIED AND AGREED TO BY THE DISTRIBUTOR
AND PROGINET IN EXHIBIT F, AND AS SPECIFIED IN SECTION 4B.
7. PRODUCT SUPPLY, STAFFING AND EDUCATION
A. PROGINET will supply DISTRIBUTOR with the PRODUCTS, documentation, and
technical information by electronic media, which may include compact
discs, diskettes, tapes or other binary form.
B. PROGINET will maintain the PRODUCTS and supply DISTRIBUTOR with one
copy of the revised PRODUCTS, documentation or such materials as may
be reasonably requested by DISTRIBUTOR to enable DISTRIBUTOR to
provide LEVEL ONE (1) SUPPORT,, as defined in Section 8Ato customers
of the PRODUCTS in the TERRITORY.
8. TECHNICAL SUPPORT
A. DISTRIBUTOR will be responsible for providing LEVEL ONE (1) SUPPORT.
LEVEL ONE (1) SUPPORT includes communication directly with customers
and prospective customers, including phone calls, faxes, and
electronic mail that include questions relating to PRODUCTS
functionality, computing environment, and pre-requisite software.
DISTRIBUTOR shall be solely responsible for providing all CLIENTS in
the TERRITORY with first level technical support. DISTRIBUTOR will
collect diagnostic information from CLIENTS and prospective customers
and forward such information electronically (machine-readable format)
to PROGINET.
B. DISTRIBUTOR shall not incorporate, or authorize any other person to
incorporate, any PRODUCTS, in whole or in part, in any other computer
software PRODUCTS except with the prior written consent of PROGINET.
9. REPORTS AND AUDIT RIGHTS
A. DISTRIBUTOR shall render the following written reports to PROGINET.
1. Commencing on the first full month after the effective date of
this Agreement, during the remainder of the term of this
Agreement, DISTRIBUTOR will provide, on or before the fifth (5TH)
day of each month, a written Monthly Sales Report with information
on all sales and trial activity. A section of this report will be
dedicated to recommend PRODUCT enhancements with time parameters
based on customer usage and feedback.
2. On a quarterly basis, the DISTRIBUTOR will provide on or before
the fifth (5TH) day of the following month an analysis of the
marketplace with changes from the previous quarter as well as a
further review of sales performance within the marketplace with
prior quarterly comparisons.
10. NON-COMPETE
A. During the term of this Agreement and any extensions or renewals
hereof, DISTRIBUTOR, its principals, agents, and employees, will not
directly or indirectly engage anywhere in the TERRITORY in the
promotion, marketing, distribution, sale or licensing of, or act as
sales agent, representative or distributor of, any computer software
program or other product which competes with the PRODUCTS, or related
PRODUCTS, or authorize any other person to engage in any of such acts;
among other related PRODUCTS are expressly included IBM mainframe file
transfer and security PRODUCTS for IBM or "plug compatible" mainframe
computers, including any that use the "370," "390," "XA" or "ESA"
architectures, and Microsoft Windows NT and related PRODUCTS. This is
meant to only affect the period of this agreement. DISTRIBUTOR may
work with a competitor of Proginet's if they wish to resign as a
distributor of Proginet's Products.
B. DISTRIBUTOR shall not, without PROGINET'S prior written approval,
directly or indirectly, engage in or have a financial interest in the
production, reproduction, sale, licensing, distribution or servicing
of any software, program or product which competes directly with the
PRODUCTS.
11. WARRANTY AND INDEMNITY
A. PROGINET REPRESENTS THAT THE PRODUCTS WILL SUBSTANTIALLY CONFORM TO
ITS SPECIFICATIONS AS DESCRIBED IN THE USER MANUAL, BUT PROGINET DOES
NOT WARRANT THAT THE PRODUCTS WILL BE ERROR-FREE.
B. DISTRIBUTOR AGREES AND ACKNOWLEDGES THAT THIS IS NEITHER A CUSTOM
SOFTWARE AGREEMENT, NOR A CONTRACT TO DEVELOP SOFTWARE. PROGINET MAKES
NO OTHER WARRANTY AS TO THE DESIGN, CAPABILITY, CAPACITY OR
SUITABILITY OF ITS PRODUCTS. ANY STATEMENTS MADE BY PROGINET OR ITS
EMPLOYEES, INCLUDING BUT NOT LIMITED TO, STATEMENTS REGARDING
CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF ITS PRODUCTS SHALL
NOT BE DEEMED A WARRANTY OR REPRESENTATION BY PROGINET FOR ANY
PURPOSE, NOR GIVE RISE TO ANY LIABILITY OR OBLIGATION OF PROGINET.
PROGINET DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCTS
WILL MEET ANY LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE
PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
C. THE ONLY WARRANTIES (AND REMEDIES FOR BREACH THEREOF) MADE BY PROGINET
WITH RESPECT TO THE PRODUCTS SHALL BE THOSE MADE TO DISTRIBUTOR IN
THIS AGREEMENT AND TO CLIENT(S) IN THE AUTHORIZED FORM OF SOFTWARE
LICENSE AGREEMENT. DISTRIBUTOR SHALL NOT MAKE OR GIVE, AND SHALL
INDEMNIFY, DEFEND AND HOLD PROGINET HARMLESS AGAINST ANY LOSS,
LIABILITY OR EXPENSE (INCLUDING COSTS AND PROGINET'S REASONABLE
ATTORNEYS' FEES) ARISING OUT OF OR IN CONNECTION WITH ANY
REPRESENTATION, WARRANTY, PROMISE OR ASSURANCE MADE BY DISTRIBUTOR
WITH RESPECT TO THE PRODUCTS. PROVIDED THAT DISTRIBUTOR FULFILLS ALL
OF THE REQUIRED POLICIES AND PROCEDURES OF PROGINET, PROGINET AGREES
TO HOLD DISTRIBUTOR HARMLESS OF ANY CLAIMS FROM CUSTOMERS IF PROGINET
FAILS TO TAKE APPROPRIATE MEASURES TO FIX TECHNICAL PROBLEMS WHICH ARE
CAUSING SEVERE PRODUCTION IMPACT AND/OR BUSINESS LOSS, DESPITE
DISTRIBUTOR HAVING NOTIFIED PROGINET OFF SUCH A SITUATION, THROUGH
PROGINET'S STANDARD PROBLEM REPORTING METHODS, AND ESCALATIONS.
D. IN NO EVENT SHALL PROGINET BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES.
12. TERMINATION
A. For cause, due to breach of contract as outlined within this agreement,
either party may terminate this Agreement, by giving the other party
written notice to such effect, in which case this Agreement shall terminate
ninety (90) days from and after the date of such notice, otherwise the
Agreement shall be valid for the term described in Clause 3. Upon receipt
of the Termination Letter, the process as described in EXHIBIT I
TERMINATION PROCESS.
13. CONFIDENTIALITY
A. DISTRIBUTOR agrees that the CONFIDENTIAL INFORMATION is confidential
and may contain trade secrets belonging to or in the custody of
PROGINET.
1. DISTRIBUTOR acknowledges that the PRODUCTS are proprietary,
embody trade secrets and are not in the public domain and that
PROGINET does not, by this Agreement, convey or otherwise give up
any rights or OWNERSHIP of the PRODUCTS to DISTRIBUTOR or to
anyone else.
2. DISTRIBUTOR acknowledges that the placement of a copyright,
patent pending, patented or other similar notice within or on any
media containing CONFIDENTIAL INFORMATION does not constitute
publication or otherwise impair the confidential nature thereof.
3. DISTRIBUTOR further acknowledges that unauthorized use or
disclosure of any of the CONFIDENTIAL INFORMATION will cause
irreparable harm to PROGINET. Therefore, during the term of this
Agreement and thereafter for so long as the CONFIDENTIAL
INFORMATION is not in the public domain, through no act or
failure to act on the part of DISTRIBUTOR,
DISTRIBUTOR shall: (a) use or disclose the CONFIDENTIAL
INFORMATION only as authorized under this Agreement and only to
the extent necessary to perform its obligations hereunder; (b)
use reasonable care to prevent other parties from gaining access
to the CONFIDENTIAL INFORMATION; (c) take all reasonable steps to
prevent duplication of or unauthorized access to the CONFIDENTIAL
INFORMATION by any employee of DISTRIBUTOR or other party; (d)
under PROGINET authorization, allow its employees and/or agents
access to the CONFIDENTIAL INFORMATION only for the fulfillment
of DISTRIBUTOR'S obligations under this Agreement and, prior to
allowing such access, notify each employee and any DISTRIBUTOR
agent in writing of DISTRIBUTOR'S confidentiality obligations
arising hereunder, and (e) ensure that all copyright, patent,
trade or service confidentiality and nondisclosure labels or
notices are applied in accordance with this Agreement and are not
removed.
14. MISCELLANEOUS
A. Neither PROGINET nor DISTRIBUTOR shall, without the other party's
written consent, knowingly employ, solicit or offer employment to any
employee, agent or contractor of the other party while DISTRIBUTOR is
providing services to such other party.
B. It is expressly agreed that in the event of any breach of this
Agreement by either party hereto, the non-breaching party may not have
an adequate remedy at law and therefore, the parties agree that, in
addition to the other remedies, such aggrieved party shall be entitled
to injunctive or other equitable relief to enforce the performance
hereof.
C. Neither this Agreement nor any of DISTRIBUTOR'S rights or duties
hereunder shall be assigned or otherwise delegated or transferred by
DISTRIBUTOR without PROGINET'S prior written consent.
D. This Agreement creates no relationship of joint ventures, partners,
associates or parties hereto acting as principals. Distributor is an
agent for Proginet.
E. If any provision of this Agreement is found to be illegal, invalid or
unenforceable, such finding shall not affect the legality, validity or
enforceability of the other provisions of this Agreement.
F. This Agreement and its exhibits shall constitute the entire agreement
between the parties with respect to the subject matter hereof and
supersedes all other agreements and understandings between the parties
with respect to such subject matter.
G. This Agreement shall be governed by the laws of the State of New York,
United States of America, without giving effect to principles of
conflicts of laws.
------------------------------------------------------- -----------------------------------------------------
DISTRIBUTOR Proginet
------------------------------------------------------- -----------------------------------------------------
Proginet Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Tel: ▇▇.▇▇▇.▇▇▇.▇▇▇▇
FAX: ▇▇.▇▇▇.▇▇▇.▇▇▇▇
------------------------------------------------------- -----------------------------------------------------
With a copy to:
------------------------------------------------------- -----------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇.▇▇▇.▇▇▇▇.▇▇▇▇
Fax: ▇▇.▇▇▇.▇▇▇.▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
------------------------------------------------------- -----------------------------------------------------
15. SIGNATURES
IN WITNESS WHEREOF, PROGINET and DISTRIBUTOR each has caused this Agreement to
be executed on its behalf by its duly authorized officer.
------------------------------------------------------ ------------------------------------------------------
Agreed: Agreed:
------------------------------------------------------ ------------------------------------------------------
PROGINET CORPORATION
------------------------------------------------------ ------------------------------------------------------
------------------------------------------------------ ------------------------------------------------------
Title Title
------------------------------------------------------ ------------------------------------------------------
Date Date:
------------------------------------------------------ ------------------------------------------------------
EXHIBIT A PRODUCT DESCRIPTIONS
(1) SecurPass(TM) - a network utility that automatically synchronizes the
security passwords of Windows NT LAN users with their corresponding
mainframe passwords. This reduces the number of passwords users must
use to get access to their applications or data.
SecurPass is a security administration application, which enables
disparate information security systems to work as one. SecurPass helps
corporate security administrators, help desk staff and end users
manage the complexities of multi-platform environments. SecurPass
"harmonizes" native Microsoft Windows NT security with standard IBM
mainframe, Novell, and UNIX security systems, providing password
synchronization between different environments. SecurPass is the only
solution of its kind, which does not require code at every desktop.
SecurPass was jointly developed by Proginet and Microsoft,
guaranteeing total support and compliance with Microsoft Windows NT,
Microsoft BackOffice, and all other Microsoft components used in the
enterprise.
(2) CyberFUSION(TM) - provides secure and reliable file transfer between
internal and remote users, business partners and customers across both
corporate networks and the Internet. CyberFUSION data transmissions
combine enterprise-strength automation, remote execution,
administration, and audit with industry standard encryption and
compression.
(3) FUSION FTMS(TM)- a multi-protocol file transfer management system
designed to improve the management and cost efficiencies of
information transfer between distributed Windows NT LANs and MVS
enterprise servers.
(4) IND$File(R) Plus - IND$File(R) Plus is an IBM mainframe based software
product that allows a PC user to send and receive files to and from a
mainframe computer.
EXHIBIT B TRADEMARKS OF PROGINET CORPORATION
---------------------------- -------------------------- -------------------------- --------------------------
Proginet(TM) Fusion FTMS(TM) Net/WrkNT(TM) Net/WrkVMS(TM)
---------------------------- -------------------------- -------------------------- --------------------------
Host.FTAM(TM) Fusion SERVER(TM) Net/WrkWIN(TM) NetWrk36(TM)
---------------------------- -------------------------- -------------------------- --------------------------
FTAM.FUSION(TM) SecurPass(TM) Net/Wrk6000(R) NetWrkVISION(TM)
---------------------------- -------------------------- -------------------------- --------------------------
IND$File(R) CyberFUSION(TM) Net/Wrk HPUX(TM) Net/WrkSecure(TM)
---------------------------- -------------------------- -------------------------- --------------------------
IND$File(R) Plus Net/Wrk400(R) Net/WrkMVS(TM) Net/WrkOS2(TM)
---------------------------- -------------------------- -------------------------- --------------------------
Trademarks of Novell Inc. under license to Proginet Corporation:
---------------------------- --------------------------
Network Navigator for MVS NetWare Navigator
---------------------------- --------------------------
EXHIBIT C TERRITORIES AND MINIMAL ANNUAL QUOTA
The amount for each Minimum Annual Revenue Quota shall mean the amount
of gross U.S. dollars actually collected and deposited by PROGINET for
revenues received for new licenses of the Product during the
applicable quota year. The following Minimum Annual Revenue Quotas
shall commence on the effective date of this Agreement, and continue
for each "quota year" thereafter for the term of this Agreement as
indicated.
------------------------------------------- -------------------------------------- ------------------------------
TERRITORY YEAR ENDED MINIMUM QUOTA
------------------------------------------- -------------------------------------- ------------------------------
------------------------------------------- -------------------------------------- ------------------------------
------------------------------------------- -------------------------------------- ------------------------------
------------------------------------------- -------------------------------------- ------------------------------
EXHIBIT D TRIAL LICENSE AGREEMENT
In accordance with the delivery and installation of the Proginet Software
Product, hereinafter referred to as "Product", Proginet Corporation, hereinafter
referred to as "Licensor", and --------------------------, hereinafter referred
to as "Trial Licensee", agree to the following:
1. Trial Licensee accepts the Product shipment on ________________ for
installation and evaluation for thirty (30) days at the Site listed below and on
the Central Processing Unit(s) listed below.
2. Trial Licensee acknowledges and agrees that the Product is proprietary to
Licensor, and Trial Licensee agrees to keep any and all information relating to
the use of the Product confidential, including, but not limited to, the Product,
documentation, specifications, flow charts, and logic diagrams. Trial Licensee
further agrees that it will not copy, distribute, or disclose any information
relating to the use of the Product to anyone other than those persons who
require disclosure to carry out their responsibilities. Trial Licensee will hold
any and all information in trust and confidence, and will not use any such
information to the detriment of Licensor in any manner.
3. Licensor will not be liable for any direct, indirect, special, or
consequential damages relating to the use of the Product.
4. Upon termination of the evaluation period, Trial Licensee shall either: (a)
enter into a License Agreement for the Product; or (b) discontinue using the
Product, return the Product and any related materials to Licensor, and delete
all copies of the Product from its computer libraries.
-------------------------------------------------------------------
To be completed by trial licensee:
Trial Licensee Address:
(Company): -------------------------- -----------------------------------------------
Authorization Date
Signature Phone
---------------------------------------- -----------------------------
Name Fax
----------------------------------------- -----------------------------
Title Email
----------------------------------------- -----------------------------
Senior Date
Management
Signature Phone
----------------------------------------- -----------------------------
Name Fax
----------------------------------------- -----------------------------
Title Email
----------------------------------------- -----------------------------
Technical Date
Contact
Signature Phone
----------------------------------------- -----------------------------
Name Fax
----------------------------------------- -----------------------------
Title Email
----------------------------------------- -----------------------------
Date and Time of Installation Yes No (Trial Can Not Start Until this is received by
Proginet)
------------------------------------------- ----------- -------------------------------------------------------
Pre Installation Check list attached?
------------------------------------------- ----------- -------------------------------------------------------
EXHIBIT E SOFTWARE AND LICENSE FEES
The current Price List is attached to this document.
EXHIBIT F DISTRIBUTOR PROGRAM LEVELS
Proginet has two distributor program levels. They are defined in order to best
serve and support distributors as well as customers of Proginet Products. Each
Distributor level is to be agreed to upon signing of this agreement. All
distributor levels will be reviewed after six months.
The Program levels are as follows:
Distributor of Proginet will provide the following: 1) Lead generation, getting
potential customers that will use the software, 2) RFI/RFP Response 3) Trial
support, LEVEL ONE (1) SUPPORT, as defined in Section 8A during the trial
period, 4) Contract negotiations, getting the customer to sign the contract or
the sale. In return for these services, Distributor will receive the indicated
percentage of the purchase price of the software (excluding maintenance).
GOLD LEVEL Pure Sales Distributors participating in the Gold Program will
receive thirty five percent [35%] of the initial sales price. For this
DISTRIBUTOR will provide:
1) Lead generation, getting potential customers that will use the
software,
2) RFI/RFP Response
3) Trial support, LEVEL ONE (1) SUPPORT as defined in Section 8A during
the trial period
4) Contract negotiations, getting the customer to sign the contract for
the sale.
The on going billing, and support, will be handled directly by Proginet.
Additional interaction with the customer on the part of the distributor is
for the purposes of add-on sales, and as such come from the NLR percentage
only. There is no maintenance fee paid by Proginet to the Distributor.
PLATINUM LEVEL Front Line Support - Distributors participating in the Platinum
Program will receive fifty percent [50%] of the initial sales price. For this
DISTRIBUTOR will provide:
1) Lead generation, getting potential customers that will use the
software,
2) RFI/RFP Response
3) Trial support, LEVEL ONE (1) SUPPORTas defined in Section 8A during
the trial period
4) Contract negotiations, getting the customer to sign the contract for
the sale.
Distributors participating at this level will handle billing and Level
One-Customer Support Issues. The customer will call their Platinum
Distributor with all inquiries and issues. The Platinum Distributor will
pass all requests and/or problems onto Proginet and will keep the customer
appraised of the status of any and all issues.
The Platinum Distributor will receive fifty percent [50%] of all
maintenance received for their customers, in addition to the
predetermined
percentage of the initial sales price. Platinum level support requirements
are defined in the attached EXHIBIT H DISTRIBUTOR FUNCTION REQUIREMENTS,
steps 1 - 9.
-------------------------------------------------------------------------------------------------------------
This Distributor Agreement is being signed for a _____________________ Level Distributor.
-------------------------------------------------------------------------------------------------------------
Distributor Proginet Corporation
------------------------------------------------------- -----------------------------------------------------
------------------------------------------------------- -----------------------------------------------------
EXHIBIT G DISTRIBUTOR'S SOFTWARE LICENSE AGREEMENT
To be attached if not using Proginet's Standard Software License Agreement.
EXHIBIT H DISTRIBUTOR FUNCTION REQUIREMENTS
Step 1: An issue is reported to the DISTRIBUTOR, via any of the problem
reporting mechanisms (i.e. email, fax, phone, or web).
Step 2: A determination must be made whether this is a new call or an existing
call. If it is a new call skip to step 5, if not continue with step 3.
Step 3: If this is an existing call, the individual that was working on the
previous call should continue to work on the call, if that individual is
available. This will make it easier to pick up the call were it was last
left off. If the customer is reporting new information about the call, the
customer support engineer should search the OASIS knowledge base to see if
the new information has shed any light on the problem, and if there is
already a known problem and resolution. If not the DISTRIBUTOR should
review the customer's environment, settings and configuration to ensure
that there are no errors.
Step 4: Is issue solved. If so go to step 13. If no go to step 9.
Step 5: For issues reported via phone, the DISTRIBUTOR needs to collect the
contact information and enter it into the OASIS database in real time. If
the issue was reported via email or fax, or the web enter as much of the
information below as is known.
If the company that the individual is calling from is not in the database,
then this may be an indication that the customer does not have a support
contract with Proginet. It is the DISTRIBUTOR's responsibility to confirm
that the company is currently paying for support, or is currently trialing
the product. If the company should be receiving support the DISTRIBUTOR
should work out with the Proginet accounts receivable department the exact
details of the support contract. If this company is a trial, then
Proginet's customer support department should be provided with the
appropriate documentation of the trial (TLA and pre-install checklist).
For this step the DISTRIBUTOR should collect the following information:
1. Company
2. Contact information of the caller
3. Product in question, including the versions of all components in
question (i.e. Net/Wrk 400 3.6 and Net/Wrk NT 2.7.0.6)
4. Any PTFs applied to our software
5. Platforms including version number of the operation system
6. Protocol being used (i.e. SNA or TCP/IP)
7. Brief Description
Step 6: After inputting the information in step 5 into the OASIS database the
DISTRIBUTOR will be returned with a problem record number. For issues
reported via phone inform the customer of the number before continuing. If
the call was reported via email or fax, the DISTRIBUTOR should contact the
customer and inform them that PROGINET has received their issue and
PROGINET is working on it. When DISTRIBUTOR first makes contact with the
customer be sure to inform them of the call number.
Step 7: The DISTRIBUTOR should search the knowledge base to see if the issue
being reported is already a known problem with a resolution. If not the
DISTRIBUTOR should review the customer's environment, settings and
configuration to ensure that there are no user errors.
Step 8: Is the issue solved? If so go to step 13. If not go to step 9.
Step 9: If at this point the DISTRIBUTOR is still not able to resolve the
customer's problem , the DISTRIBUTOR will need to collect the appropriate
diagnostic information. The type of information to collect will depend on
the product, platform, and nature of the problem. If the DISTRIBUTOR is
unsure of what diagnostics to collect, consult one of the members of
Proginet's customer support team. At this point the DISTRIBUTOR should also
collect any information that will be necessary to recreate the problem
(i.e. batch jobs or parameter values specified in the interface).
Step 10: When the diagnostics collected in step 9 are received, the DISTRIBUTOR
should review them to see if they indicate any configuration problems. The
DISTRIBUTOR should contact, one of the members of Proginet's customer
support team for the resolution if the DISTRIBUTOR is unfamiliar with the
diagnostics or does not see anything.
If the customer is able to recreate the problem, the DISTRIBUTOR should
document exactly what needs to be done to recreate it and update the OASIS
database with this information. If any batch jobs or configuration files
were used in recreating the problem, these should be provided to Proginet.
Step 11: Is issue solved. If so go to step 13. If no go to step 12.
Step 12: Queue the issue to Proginet customer support team. Before you do this
you should make sure that all of the information mentioned in Step 5 as
well as what you determined from your review of the diagnostics. is clearly
documented in the OASIS database. If the problem was recreated, clearly
document all of the steps that were performed to recreate the problem,
including batch jobs that were created.
At this point the DISTRIBUTOR and Proginet have to make sure that the
following take place:
1. When the issue is queued to Proginet, that the database is updated on
the progress of the issue.
2. If additional information is required by Proginet, the DISTRIBUTOR
must work with the customer to get this additional information.
Step 13: Issue is solved: Once the customer has agreed that the issue is
resolved then the DISTRIBUTOR should update OASIS and clearly identify
that the issue has been resolved and the Customer has agreed to the
resolution. The database must be updated to clearly indicate the issue
and the resolution.
EXHIBIT I TERMINATION PROCESS
The following section will be enacted upon Termination of this Agreement by
PROGINET or DISTRIBUTOR.
1. All rights granted to DISTRIBUTOR under or pursuant to this Agreement
shall immediately cease, except as otherwise specifically provided in
this Section and DISTRIBUTOR will cease holding itself out as a
DISTRIBUTOR of the PRODUCTS. Upon the termination of this Agreement,
the parties agree to continue their cooperation and to effect an
orderly termination of their relationship. This will include
DISTRIBUTOR being allowed to pursue and conclude all business, which
was duly forecasted
before termination and is likely to be closed with in one hundred
eight (180) days of termination notification.
2. All existing software license agreements and maintenance agreements
shall be fully vested in PROGINET upon occasion of renewal, and
DISTRIBUTOR shall have no further rights therein. DISTRIBUTOR shall
provide a complete list of all customers using Proginet products,
including what products and platforms are in use. Upon PROGINET's
specific request, notify all existing CLIENT(S) and/or users of the
PRODUCTS in the TERRITORY that such CLIENT(S) and/or users agreements
run directly with PROGINET, and that all further payments and
communications should be directed to PROGINET. In addition, PROGINET
shall have the right to directly communicate such termination to all
CLIENT(S) and assume full contact with such CLIENT(S) AND PROGINET
shall have the right to contact CLIENT(S) and instruct that all
SOFTWARE LICENSE FEES and MAINTENANCE FEES should be paid directly to
PROGINET, DISTRIBUTOR shall immediately pay to PROGINET any amounts
then owing from DISTRIBUTOR to PROGINET, including any pro rata
maintenance monies that have not been earned by DISTRIBUTOR.
3. Unless otherwise agreed to in writing, or as specified above by
PROGINET, DISTRIBUTOR shall immediately, as customer servicing is
completed, return to PROGINET all of the following which, on the date
of expiration or termination, are in DISTRIBUTOR'S possession or under
its control: (i) all originals and copies of all PRODUCTS literature,
price lists, customer lists, customer license and maintenance
agreements, technical data PRODUCTS samples, drawings, designs and all
documents and electronic media containing CONFIDENTIAL INFORMATION
except those, if any, which DISTRIBUTOR is entitled to retain under
DISTRIBUTOR'S LICENSE AGREEMENT; and (ii) a complete list of the names
and addresses of all CLIENT(S) for whom DISTRIBUTOR is then supporting
any of the PRODUCTS, additionally, The maintenance payments made by
customers during the period of the distributor agreement, must be
properly apportioned for the time of support provided by each of the
parties. Under the Generally Accepted Accounting Principles (GAAP)
guidelines, maintenance is categorized as Unearned monies which are
earned for each month of covered support. Therefore the monies
recognized each month from the payment are one twelfth of the total
amount paid. By the end of the year for which maintenance is
purchased, all monies are thereby recognized.
All customer maintenance covered by the terminating agreement will be
broken out to show the amount of monies earned by each party. This
chart will then show what payments are required by the Partner to
Proginet, or by Proginet to the Partner.
Any maintenance that is not current and is late will be due and
payable to the other party upon the signing of the letter of
termination.
Payment will be made by the appropriate party within thirty days of
signing the Letter of Termination.
4. Together with the materials described above, DISTRIBUTOR shall deliver
to PROGINET a document duly executed on behalf of DISTRIBUTOR
certifying that no such materials are in DISTRIBUTOR'S possession or
under its control DISTRIBUTOR shall also deliver to PROGINET as soon
as possible any of the foregoing materials that come into
DISTRIBUTOR'S possession or under its control after the expiration or
termination of this Agreement.
5. DISTRIBUTOR shall immediately cease holding itself out as a
representative of PROGINET, shall destroy all advertising and
promotional literature, stationery and other materials within its
possession or control bearing any TRADEMARKS, and shall destroy any
and all signs or notices bearing TRADEMARKS or otherwise identifying
DISTRIBUTOR as a representative of PROGINET, the PRODUCTS or the
TELEPHONE SUPPORT.
6. Neither DISTRIBUTOR nor PROGINET is responsible for promises or lost
opportunities made to other parties that are not fulfilled as a result
of the termination of this agreement.
CONTRACT SUMMARY FORM
Effective Date of Agreement:
-----------------------------------------
Company: Address:
-------------------------- -----------------------------------------------
Product: Number of SecurPass
users (If applicable):
-------------------------- ---------------------------------
Number of Servers: CPUID's of all machines
running software:
(CyberFUSION only)
--------------------- ---------------------------------
Total Sale Amount (USD): Maintenance
Paid/Owed:
----------------------- -------------------------
Amount remitted by customer: Maintenance Period
Coverage:
----------------------- --------------------------
Amount remitted by customer in USD Proginet's Portion
(If different from above): of sale (USD):
----------------------- --------------------------
Senior Management: Phone
------------------------------
Name Fax
----------------------------------------- ------------------------------
Title Email
----------------------------------------- ------------------------------
Technical Contact: Phone
------------------------------
Name Fax
----------------------------------------- ------------------------------
Title Email
----------------------------------------- ------------------------------
Administrative Contact: Phone
------------------------------
Name Fax
----------------------------------------- ------------------------------
Title Email
----------------------------------------- ------------------------------
