STRATEGIC ALLIANCE AGREEMENT
FOR THE INTEGRATION OF SAC TECHNOLOGIES FINGERPRINT TECHNOLOGY AND
BARAKA INTRACOM, INC. SOFTWARE PRODUCTS
Duly made and executed on this 28th day of January 1998, by and between:
SAC Technologies, Inc., an Edina corporation having its principal place of
business at 0000 Xxxx 00xx Xxxxxx, Xxxxx Xxxxxxxxx 00000 hereinafter referred to
as "SAC", represented by Xxxxx Xxxxx, Chief Executive Officer; and Baraka
IntraCom, Inc., a California company with its principal offices at 000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxxxxx, hereinafter referred to as "Baraka",
represented by Xxxxxxx Xxxxxx, Managing Director.
INTRODUCTION
This Strategic Alliance Agreement contains understandings between Baraka and SAC
(the "Parties"), with regard to the integration of Baraka's Video Conferencing
and Video E-mail applications, and SAC's biometric technologies, including, but
not limited to: voice, facial recognition and fingerprint for desktop
computer/network access control for Industrial, Commercial and Consumer Market
applications.
Baraka is currently developing, marketing and selling Video Conferencing and
Video E-mail software products and desires to participate with SAC in the areas
of integration and co-marketing.
SAC is currently developing, marketing and selling various fingerprint
"identification" based products and applications and has technical and business
interests in Teleconferencing Products and desires to participate with Baraka in
the areas of integration and co-marketing. SAC intends to offer to its customers
a biometric controlled Teleconferencing product, which offers the user the
option to enable any combination of incorporated biometrics.
1.0 SCOPE OF COOPERATION - Baraka and SAC's intended cooperation will include
the following:
1.1 The Parties may expand the scope of this agreement by reducing said
mutually agreed conditions to writing as an addendum of this
agreement.
1.2 GENERAL - Cooperating and sharing resources and information, on a
global basis, in the mutual and/or joint development, promotion,
marketing and sales as per below;
1.3 DEVELOPMENT
* Joint development of support for and integration for certain
SAC products with Baraka products. Providing the necessary
technical information and support to facilitate this
integration.
* Joint development of support for and integration of
Teleconferencing and SAC's technology. Providing the necessary
technical information and support to facilitate this
integration.
* Working together and sharing resources and information on the
support of new standards in order to ensure the timely support
of significant industry standards by both parties' products.
* Providing reciprocal access to each party's white papers and
technical briefs; reciprocal participation in beta testing.
1.4 MARKETING AND SALES - On a case by case basis, based on mutual
business considerations and subject to prior approval by both
parties;
* Joint participation in marketing efforts, including joint
advertising, press releases, joint participation in trade
shows, linking web sites, and other industry events, and joint
developing of marketing collateral.
* Mutual referral of relevant customer leads as determined by
the source party.
1.5 SERVICES, TRAINING & SUPPORT - Joint technical seminars for
application developers; joint "road shows" addressing the parties'
target markets; training of Baraka associates by SAC and training of
SAC associates by Baraka, providing reciprocal high priority access
to technical support resources.
2.0 Additionally, the parties have agreed to the following principals on a
case by case basis, based on mutual business considerations and subject to
prior approval by both parties;
2.1 Baraka and SAC shall participate in the out of pocket expenses
generated by the parties in relation to special/extraordinary
development, and promotional marketing and sales work done by either
party to support the requests of the counter party.
2.2 All products sold by SAC to Baraka and by Baraka to SAC shall bear
the cost of any related royalties. If the existence of other
intellectual property rights relevant to a product comes to light,
the supplying party will secure the full right to use the item
throughout the world.
3.0 TERM - The term of this agreement will be for [*] from the signature date
of the most recently signed addendum and may be mutually extended for [*]
periods thereafter.
4.0 TERRITORY - The parties shall promote, market and sell the products on a
worldwide basis for desktop computer/network access, appliance access
control and facility access control for Industrial, Commercial and
Consumer market applications. The stated Territory/Market definition does
not include any existing exclusive arrangements that the parties may have
at the time of the execution of this agreement. Such exclusive
arrangements will be defined as an Addendum to this agreement.
5.0 CONFIDENTIALITY
5.1 In order to pursue the facilitation of the cooperation between the
parties as detailed in section 1.0 to this Agreement ("Scope of
Cooperation"), the parties, having recognized that there is need to
disclose to each other confidential information, and to provide for
mutual agreements to protect such confidential information which is
to be used only for the purposes of facilitating the Scope of
Cooperation, will sign a Non Disclosure Agreement whenever judged
necessary by either party ("Xxx XXX").
5.2 Without derogating from the generality of the Agreement, this
section 5.0 shall remain in effect for a period of [*] from the
later of the signature date of the present agreement or the date of
the termination of subsequent addendum to this agreement.
6.0 INTELLECTUAL PROPERTY RIGHTS
6.1 The parties hereby agree that all the proprietary interests and/or
all intellectual property rights, owned by each party prior to
entering this Agreement, shall remain the property of that party
solely, and that in entering this Agreement or any other agreement
deriving from it, either party does not, and shall not, acquire any
rights in the other party's proprietary interests and/or all
intellectual property rights.
6.2 Each of Baraka and SAC hereby represents that they do not, in any
manner whatsoever, possess any proprietary interest in the
intellectual property rights owned by the counter party. Baraka and
SAC shall be entitled to use each others' name, trade-names and
logos only in connection with the Scope of Cooperation, and subject
to obtaining the counter party's prior written consent, such consent
not to be unreasonably withheld.
* Confidential portion has been omitted and filed separately with the Securities
and Exchange Commission
7.0 TEAM COORDINATORS - The Parties will assign a representative from each
company to assign attendees for joint project workshops as necessary.
* For Baraka - Xxxxxxx Xxxxxx
* For SAC - Xxxxx Xxxxx
8.0 GENERAL PROVISIONS
8.1 Both Baraka and SAC may make public statements as to the cooperation
contemplated in this agreement. Such public statements shall be
coordinated between the parties prior to their distribution.
8.2 This Agreement is governed only by the laws of California.
9.0 TERMS AND CONDITIONS - The parties will make payments prepaid, cash or
COD. Following credit application/approval, the parties will make payments
thirty (30) days from invoice.
9.1 SAC will pay a per copy license cost for Baraka's Video Conferencing
and Video E-mail software applications based on the number of SAC
shipments which contain Baraka's software, accordingly to the
schedule below for quantities on a cumulative basis.
Cumulative Quantity Price
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[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
9.2 SAC will purchase a minimum of [*] copies of Baraka's Software,
for a price of [*] on signing of this agreement during the first
year as follows; [*] copies on signing and [*] copies each
quarter thereafter once integration of the two companies'
technologies has been completed as per section 9.6.
9.3 The relationship between SAC and Baraka will be exclusive. SAC will
not bundle or embed another Teleconferencing Software similar to
Baraka's product with SAC's product and Baraka will not offer its
Teleconferencing product for bundling or embedding with another
Biometric Company's product similar to SAC's product. For this
clause to remain in effect SAC must purchase an annual minimum of
[*].
9.4 SAC will receive most favored nation pricing (i.e.; if Baraka's
software is available for less to another Baraka OEM or reseller
with similar volumes, then that price will be available to SAC). For
comparative purposes SAC's purchase volumes will be cumulative on an
annual basis.
9.5 In consideration, Baraka will be assigned Distributor status for
SAC's products and be entitled to Volume Purchase pricing at the
[*] level. If Baraka's purchases exceed the [*] level
then Baraka will be entitled to pricing as determined by SAC's then
current price list.
9.6 SAC will pay Baraka an integration fee of [*] to
integrate the two companies' technologies to produce the TECHNOLOGY.
Estimates of the integration costs will be provided upon exchange of
technical data and defining scope of work. Initial integration cost
may not exceed [*].
* Confidential portion has been omitted and filed separately with the Securities
and Exchange Commission
10.0 TERMINATION - This agreement shall terminate the day after the [*] of the
most recent signed addendum of this agreement or by mutual agreement
reduced to writing by the Parties hereto, if either party becomes
insolvent, or if the technology provided by either party is
non-competitive according to generally accepted industry standards. In the
event of termination the obligations of the parties will also terminate.
11.0 ASSIGNMENTS - The parties privileges, ownership or control in this
Agreement are not transferable and shall not be transferred or assigned to
any other person, firm, corporation, partnership or other business entity,
whether by operation of law or otherwise, without the other parties prior
approval. Such transfer for assignment without the prior written approval
of the other party shall be null and void and shall not be binding.
12.0 ENTIRE AGREEMENT - This Agreement, together with the Addendum's attached
constitutes the entire understanding and agreement between the parties and
supersedes any understanding, agreement or arrangements previously made or
in existence between the parties. This Agreement may not be altered,
enlarged, supplemented, abridged, modified, nor any provisions waived
except as provided in this Agreement, or by a written agreement between
SAC and Baraka that makes express reference to this Agreement, and
specifically declares it is intended as an amendment hereto.
13.0 WARRANTY-SAC and Baraka warrant their component parts of the TECHNOLOGY as
per the attached warranty.
14.0 INDEMNIFICATION:
14.1 SAC agrees to indemnify and hold Baraka harmless against all
liabilities, demands, damages, expenses, or losses arising from the
use or sale of TECHNOLOGY if such losses are occasioned by the
inclusion of SAC's component part therein. The amount of any claims
shall be limited to the total amount received by SAC from Baraka
during the previous 12 months.
14.2 Baraka agrees to indemnify and hold SAC harmless against all
liabilities, demands, damages, expenses, or losses arising from the
use or sale of TECHNOLOGY if such losses are occasioned by the
inclusion of Baraka's component part therein. The amount of any
claims shall be limited to the total amount received by Baraka from
SAC during the previous 12 months.
15.0 SAC will include Baraka's standard License agreement with the TECHNOLOGY.
16.0 EFFECTIVE DATE - This Agreement shall become effective upon execution by
both parties as of the date and year first above written, and shall
continue in force and govern all relations and transactions between the
parties until terminated and thereafter to the extent necessary to give
effective to those provision, hereof applicable following termination.
IN WITNESS WHEREOF, the Parties have caused this Alliance to be executed by
their respective authorized representatives.
For Baraka Intracom, Inc.: For SAC Technologies, Inc.:
/s/ Xxxxxxx Xxxxxx 1-30-98 /s/ Xxxxx Xxxxx 1-28-98
----------------------------------- -------------------------------
Xxxxxxx Xxxxxx Date Xxxxx Xxxxx Date
Managing Director Chief Executive Officer
* Confidential portion has been omitted and filed separately with the Securities
and Exchange Commission
WARRANTY BY BARAKA INTRACOM TO SAC TECHNOLOGIES - Software is sold subject only
to the terms and conditions of the Software License and warranty between
Baraka IntraCom and the Software End-user. Should a Software End-user make
a claim under the Software warranty, Baraka IntraCom will replace the
Software at no cost to SAC. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT
AND IN Baraka IntraCom' SOFTWARE WARRANTY TO THE ORIGINAL END-USER, THERE
ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE.
Baraka IntraCom DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. ANY WARRANTIES MADE BY Baraka IntraCom
TO SAC UNDER THIS AGREEMENT EXTEND SOLELY TO SAC. Both Software License
Agreement (Appendix C) and the Baraka IntraCom Warranty Provisions
(Appendix D) are attached and form part of this agreement.
WARRANTIES BY SAC TO ITS CUSTOMERS - SAC agrees that any warranties made to its
Customers shall be made only by SAC except for those made by Baraka
IntraCom in the Software License Agreement. SAC acknowledges and agrees
that it will make no representations to its customers with respect to any
warranty made by Baraka IntraCom except those made by Baraka IntraCom in
the Software License Agreement. SAC hereby agrees to indemnify Baraka
IntraCom for any loss due to SAC's failure to comply with its obligations
hereunder with respect to warranties.
APPENDIX C
SOFTWARE LICENCE AGREEMENT
IMPORTANT: READ CAREFULLY BEFORE OPENING SOFTWARE PACKET(S)
By opening the sealed packet(s) containing the software, you indicate your
acceptance of the following Baraka IntraCom License Agreement.
BARAKA INTRACOM, INC. LICENSE AGREEMENT
(VIDCALL32 AND CINEMAIL)
This is a legal agreement between you the end user and Baraka IntraCom, Inc. By
opening the sealed software packet(s) you are agreeing to be bound by the terms
of this agreement. If you do not agree to the terms of this agreement, promptly
return the unopened software packet(s) and the accompanying items (including
written materials and binders or other containers) to the place you obtained
them for a full refund.
1. GRANT OF LICENSE. This License Agreement permits you to use one copy of
the enclosed Baraka IntraCom software program (the "SOFTWARE") on a single
computer. The SOFTWARE is in "use" on a computer when it is loaded into
temporary memory (i.e., RAM) or installed into permanent memory (e.g. hard
disk, CD-ROM, or other storage device) of that computer. However,
installation on a network server for the sole purpose of internal
distribution shall not constitute "use" for which a separate license is
required, provided you have a separate license for each computer to which
the SOFTWARE is distributed.
2. COPYRIGHT. The SOFTWARE is owned by Baraka IntraCom or its suppliers and
is protected by United States copyright laws and international treaty
provisions. Therefore, you must treat the SOFTWARE like any other
copyrighted material (e.g. a book or musical recording) except that you
may either (a) make one copy of the SOFTWARE solely for backup or archival
purposes, or (b) transfer the SOFTWARE to a single hard disk provided you
keep the original solely for backup or archival purposes. You may not copy
the written materials accompanying the SOFTWARE.
3. OTHER RESTRICTIONS. You may not rent or lease the SOFTWARE, but you may
transfer the SOFTWARE and accompanying written materials on a permanent
basis provided you retain no copies and the recipient agrees to the terms
of this Agreement. You may not reverse engineer, decompile, or disassemble
the SOFTWARE. If the SOFTWARE is an update or has been updated, any
transfer must include the most recent update and all prior versions.
U.S. GOVERNMENT RESTRICTED RIGHTS
The SOFTWARE and documentation are provided with RESTRICTED RIGHTS. Use,
duplication, or disclosure by the Government is subject to restrictions as set
forth in subparagraph (c)(l)(ii) of The Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013 or subparagraphs (c)(l) and (2) of the
Commercial Computer Software - Restricted Rights 48 CFR 52.227-19, as
applicable. Manufacturer is Baraka IntraCom, Inc., 000 Xxxxxxxx Xxxx., #000,
Xxxxxxxx, XX 00000.
If you acquired this product in the United States, this Agreement is governed by
the laws of the State of California.
Should you have any questions concerning this Agreement, or if you desire to
contact Baraka IntraCom for any reason, please write to: Baraka IntraCom, Inc.
Customer Sales and Service, Baraka IntraCom, Inc., 000 Xxxxxxxx Xxxx., #000,
Xxxxxxxx, XX 00000, X.X.X.
APPENDIX D
BARAKA INTRACOM WARRANTY PROVISIONS
LIMITED WARRANTY
LIMITED WARRANTY. Baraka IntraCom warrants that (a) the SOFTWARE will perform
substantially in accordance with the accompanying written materials for a period
of one (1) year from the date of receipt; and (b) any hardware accompanying the
SOFTWARE will be free from defects in materials and workmanship under normal use
and service for a period of one (1) year from the date of receipt. Any implied
warranties on the SOFTWARE and hardware are limited to one (1) year and one (1)
year, respectively. Some states/jurisdictions do not allow limitations or
duration of an implied warranty, so the above limitation may not apply to you.
CUSTOMER REMEDIES. Baraka IntraCom and its suppliers' entire liability and your
exclusive remedy shall be, at Baraka IntraCom's option, either (a) return of the
price paid or (b) repair or replacement of the SOFTWARE or hardware that does
not meet Baraka IntraCom's Limited Warranty and which is returned to Baraka
IntraCom with a copy of your receipt. This limited Warranty is void if failure
of the software or hardware has resulted from accident, abuse or misapplication.
Any replacement SOFTWARE or hardware will be warranted for the remainder of the
original warranty period or thirty (30) days, whichever is longer. Outside the
United States of America, neither these remedies nor any product support
services offered by Baraka IntraCom are available without proof of purchase from
an authorized non-U.S. source.
NO OTHER WARRANTIES. To the maximum extent permitted by applicable law, Baraka
IntraCom and its suppliers disclaim all other warranties, either expressed or
implied, including, but not limited to, implied warranties of merchantability
and fitness for a particular purpose, with regard to the SOFTWARE, the
accompanying written materials, and any accompanying hardware. This limited
warranty gives you specific legal rights. You may have others, which vary from
state/jurisdiction to state/jurisdiction.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To the maximum extent permitted by
applicable law, in no event shall Baraka IntraCom or its suppliers be liable for
any damages whatsoever (including, without limitation, damages for loss of
business profits, business interruption, loss of business information, or any
pecuniary loss) arising out of the use of or inability to use this Baraka
IntraCom product, even if Baraka IntraCom has been advised of the possibility of
such damages. Because some states/jurisdictions do not allow the exclusions or
limitation of liability for consequential or incidental damages, the above
limitation may not apply to you.
