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EXHIBIT 10.3
STRATEGIC ALLIANCE AGREEMENT
THIS STRATEGIC ALLIANCE AGREEMENT ("Agreement") is made and entered
into with the effective date of December 11, 1997 ("Effective Date") by and
between CONTEGO, L.L.C., an Arizona limited liability company ("CONTEGO"), and
GRIDNET INTERNATIONAL, INC., a Delaware Corporation ("GI"). CONTEGO and GI are
at times individually referred to as "Party" or collectively as "Parties".
RECITALS
A. CONTEGO owns a license to sublicense the use of and to provide
services regarding certain public key infrastructure technology ("PKI
Technology").
B. GI owns and operates a communications network and additional
associated hardware and software ("System") which together form the basis for
GI's "Virtual Private Network" service offerings.
C. The Parties desire to enter into an agreement allowing GI to
integrate certain aspects of CONTEGO's PKI Technology into its System, as
described in the attached Exhibit A ("Trusted Domain Service Integration
Overview"), for purposes of providing a new premium authentication service
("Service")
D. The Parties further desire that, for the term of the Agreement,
CONTEGO shall be the exclusive supplier of public key infrastructure
authentication technology offered by or through GI within or in connection with
the System and, except as provided herein, GI and its affiliated companies shall
be the only network operating, primarily in the U.S. through which the Service
will be offered.
E. GI shall market and sell the Service to existing and new users of
the System
F. CONTEGO will, in cooperation with GI, market and sell the Service to
new and existing users of the System through direct and indirect sales channels.
COVENANTS
In consideration of the foregoing, Recitals and the mutual promises,
terms, provisions, conditions, and covenants contained in this Agreement, the
Parties agree as follows:
1. DEFINITIONS.
(a) TRUSTED DOMAIN CLIENT APPLICATION - means the object code
version of The client application developed by Contego used by end-users of the
Service which provides all end-user interfaces for use of the Service and
interfaces with the Trusted Domain Server to effect a cryptographically
authenticated logon of the end-user to the Service.
(b) TRUSTED DOMAIN SERVER - means the object code version of the
server application licensed to GI for integration into the GI System for
provision of the Service which
[*]Material marked throughout this exhibit with an asterisk has been omitted
pursuant to a request for confidential treatment. This material has been
filed separately with the Securities and Exchange Commission.
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supports the cryptographic authentication logon dialog with the Trusted Domain
Client Application.
(c) TECHNOLOGY - means those portions of CONTEGO's PKI Technology
which will be integrated into the System, which is limited to the Trusted Domain
Client Application and the Trusted Domain Server.
2. TERM. This Agreement enters into force on December 11, 1997
("Effective Date"). The term of this Agreement shall be for a period of five (5)
years, commencing on the Effective Date ("Initial Term") and shall thereafter
automatically extend for consecutive periods of five (5) years each ("Extension
Periods"), without terminating. unless either Party gives written notice of
intent not to extend at least ninety (90) days before the end of the then
current Initial Term or at least one hundred eighty (180) days before the end of
a then current Extension Period.
3. UNDERTAKINGS.
(a) BEST EFFORTS. GI shall use best efforts to market, advertise,
and sell the Service to Customers, as defined in Section 2(c) hereof, pursuant
to the terms of this Agreement. Such efforts shall be at GI's expense, except as
otherwise provided in this Agreement or in a subsequent writing executed by both
Parties. For purposes of providing appropriate descriptions of the Service and
Technology, GI shall coordinate the content of its marketing, advertising, and
selling activities regarding the Service or any part thereof with CONTEGO.
(b) HARDWARE AND SOFTWARE. GI will provide, maintain and operate all
System hardware and software including all hardware necessary to support the
operation of the Trusted Domain Server. GI will also provide for the normal
day-to-day operation of the Trusted Domain Server in a manner constant with that
which GI sets for other critical network components within the System. GI will
provide additional hardware as required in order to meet the Trusted Domain
Server processing requirements as transaction volume increases. In the event
that operation of the Trusted Domain Server requires any specialized hardware,
this hardware will be provided for by CONTEGO. GI will also provide all
modifications to GI's existing System software necessary in order to support the
Service.
CONTEGO will provide, maintain and operate all hardware and
software necessary to operate the CONTEGO certification authority in support of
the Service offering. CONTEGO will provide additional hardware as required in
order to meet the certification authority processing requirements as transaction
volume increases. CONTEGO will provide all Trusted Domain Server software as
well as all enhancements to this application as may be required from
time-to-time pursuant to the terms of the license as defined in section 4 (a).
(c) SERVICE AGREEMENTS. GI shall enter into agreements with
Customers for the provision of the Service and shall distribute Trusted Domain
Client Application that is to be provided to GI by CONTEGO to Customers entering
into a Service agreement. The provision of Service to Customers shall be under
use of the contract and license terms to be mutually agreed by the Parties and
to be attached hereto as Exhibit C (for Customers and end users subscribing,
through them) and D (for resellers of the Service) except as provided in 4(c).
GI shall refer Cus-
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tomers to CONTEGO for purposes of obtaining encryption keys and certificates in
order to activate the Service. CONTEGO's provision of the encryption keys and
certificates shall be subject to an agreement with the Customer to be provided
by CONTEGO and CONTEGO shall be entitled to charge additional fees under such
agreement. GI shall convey detailed information regarding all Service agreements
to CONTEGO in writing within seven (7)-days of execution, and shall include the
Customer's name, mailing address, date of the agreement, list price of service
sold, volume discount schedule offered, and Customer number. GI warrants that
all agreements conveyed to CONTEGO are by parties qualifying as lawful
recipients of the Service under U.S. law, including without limitation, export
regulations, and as customers of the System under contractual arrangements with
GI ("Customers").
(d) PAYMENT. In consideration of CONTEGO's efforts regarding the
Service pursuant to this Agreement, GI shall remit to CONTEGO a certain
percentage of gross proceeds received by GI from the Customers using the
Service. As the price GI charges the Customer for usage decreases in accordance
with a discount schedule, the dollars CONTEGO will receive from the bundled
service shall also decrease; provided, however that the amount to be paid to
CONTEGO shall not decrease below a minimum dollar amount to be mutually agreed
upon by the parties. CONTEGO shall have the right to change the percentage of
its fee as it deems necessary so long as GI is given notice sixty (60) days in
advance of the change. Such change shall be applicable with regard to receipts
from those Customers signing up for the Service after the sixty (60) day period
and for new end users of existing Customers signing up for the Service after the
sixty (60) day period. GI will remit payment to CONTEGO within ten business days
of receipt of payment from a customer using, the service. Payment shall be
remitted together with the accounting to be provided pursuant to Subsection (e).
(e) ACCOUNTING. GI shall submit on or before the 15th day of each
month a combined account of all Service use during the previous calendar month,
listing Customer number, name and address of the Customer, and usage of each
Customer account, and payment remitted to CONTEGO as to each Customer account in
digital format. CONTEGO shall, upon request, be provided with reasonable
documentation as to Customer accounts involving the Service.
(f) AUDIT.
(i) GI shall maintain complete, clear and accurate records of
all revenue related to the Service (the "Revenue Records"). GI shall retain
originals or copies of all correspondence related to origination of such sales
or revenues. GI will retain its Revenue Records for a period of not less than
three (3) years from the date of their preparation.
(ii) CONTEGO shall have the right to have an inspection and
audit of the Revenue conducted by independent certified public accountants (or
by a mutually agreeable party) (the "Auditor"), which inspection and audit shall
be conducted during regular business hours at the offices of GI and in such a
manner as not to interfere with GI's normal activities. The Auditor may be
required to sign a confidentiality agreement in a form containing terms and
conditions customarily found in such agreements. CONTEGO shall be responsible
for the fees and costs of the Auditor. If such audit shows that any of the GI's
reports understated the actual amounts due to CONTEGO by more than five percent
(5%), then GI shall pay to CONTEGO all
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reasonable costs and expenses which may be incurred by CONTEGO in conducting
such audit and collecting such underpayment.
(g) CUSTOMER ASSISTANCE.
(i) CONTEGO is responsible, at its expense, for provision of
"second level technical assistance" for GI and GI's wholesale customers in
support of the Service provided pursuant to this Agreement. This support will be
provided during CONTEGO's normal business hours. For the purposes of this
agreement. "Second level technical support" is limited to assistance in the
resolution of product "bugs" or technical issues which could not be resolved by
appropriately trained first level technical support personnel.
(ii) GI and/or GI's customers shall be responsible, at their
expense, for first level customer support and Service inquiries. For the
purposes of this agreement, "first level customer support" will include all
end-user registration and installation assistance, as well as end user
assistance for all normal product education and operation. First level customer
support will also include registration authority operational responsibility in
support of Customers. CONTEGO will license GI and GI's customers for the
registration authority application for an initial setup charge and monthly
license fee to be set by CONTEGO.
(iii) CONTEGO reserves the right to offer "first level support"
services on a contract basis to GI and other Service Customers.
(h) LITERATURE AND MATERIALS. CONTEGO will furnish GI at no charge
with reasonable quantities of non-proprietary sales aids, Technology briefs,
brochures and similar literature and materials normally made available at no
charge with respect to CONTEGO Technology. However, GI shall incorporate
information regarding the Service into its Customer literature and materials and
its web sites at GI's cost. CONTEGO manuals and other materials will be
available to GI at CONTEGO's cost. The Parties shall mutually agree upon the
content and planning of press releases announcing the Service.
(i) TRAINING AND ASSISTANCE. CONTEGO will provide GI with initial
familiarization and sales training, with respect to the Service, at no charge
for up to a maximum of three (3) such training sessions to be held at a location
reasonably designated by GI. CONTEGO will provide GI with additional sales
training upon GI's request and GI agrees to reimburse CONTEGO for the cost of
such training. CONTEGO shall have the option to participate, at its cost, in
trade shows attended by GI.
4. LICENSE.
(a) GRANT. For the term of this Agreement and subject to its
provisions, CONTEGO grants to GI and GI accepts, non-exclusively, a) the right
to contract for the use of the Service by existing and new Customers, (b) the
license to use certain software and hardware provided by CONTEGO for purposes of
integration of the Trusted Domain Server into the System and its utilization
pursuant to the terms of this Agreement, (c) the right to reproduce and
distribute copies of the Trusted Domain Client Application solely pursuant to
the end user agreement to be added to the Agreement as Exhibit C and solely to
Customers, (d) to use the Trusted Domain Server, solely internally for the
purpose of providing the Service on the System,
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(e) to sublicense resellers (pursuant to the reseller agreement to be added to
this Agreement as Exhibit Do to reproduce and distribute the Trusted Domain
Client Application solely to Customers and (a the right to use CONTEGO's
trademarks identified in Exhibit B hereto for such purposes.
(b) EXCLUSIONS. No other right or license is granted by CONTEGO to
GI. either express or implied. GI agrees to integrate the Technology into and
market the Service as part of the System in the regular course of its business
and to obtain use of the Technology from CONTEGO under this Agreement solely for
incorporation into its System. Any Technology integrated shall remain the sole
property of CONTEGO and GI does not acquire any rights in the Technology as a
consequence of such integration into its System, except for the license
expressly granted herein. GI shall not sell, distribute, lease, or otherwise
directly or indirectly provide the Service to any other party than Customers,
unless CONTEGO has given prior written permission. The rights stated in
Subsection (a) are nondivisible, nonassignable, and non-sublicensable, except as
expressly provided in such Subsection (a). GI shall not use CONTEGO's trademarks
in any manner not specifically authorized by this Agreement. No license is
granted hereunder for publicity purposes, in combination with other products or
services, as gifts or giveaways, as premiums used for the purpose of
publicizing, promoting, or increasing sales of any other products or services,
or in connection with any similar method of merchandising, except with prior
written permission obtained from CONTEGO. CONTEGO retains all rights not
expressly and exclusively conveyed to GI hereunder, and, except as expressly
stated herein, CONTEGO may use or grant licenses to others. The appointment
contained herein does not constitute a grant of any specific territory or
geographic area.
(c) RESERVED MARKETING RIGHTS. CONTEGO reserves the right to market
and solicit sales of any aspect of PKI Technology and the Service directly,
through other distributors, and through any other channel of distribution at any
time and from time to time in CONTEGO's business or otherwise as in CONTEGO's
sole judgment CONTEGO deems desirable, and GI will not be entitled to any
commission, discount or any other compensation with respect to or on account of
such sale. CONTEGO shall further have the right to sell any other PKI Technology
related product, or service that is not integrated into the System, directly to
Customers and GI shall not be entitled to any compensation for such direct
sales. In case GI wishes to itself engage in sales of such services and
products, the Parties shall in good faith negotiate and execute a separate
agreement regarding the terms thereof.
5. MOST FAVORED TREATMENT. Notwithstanding anything in this Agreement
to the contrary, during the term of the Agreement, with the exception of EQUANT,
CONTEGO shall not integrate its Technology into the network system of any other
network provider operating primarily in the U.S. Further, GI shall be
automatically availed the most favorable wholesale price terms CONTEGO maintains
with any other party, for comparable quality and volume of service, if such
terms are more favorable than provided in this Agreement. For the term of this
Agreement, GI shall not sell, market, endorse, recommend or integrate into its
System any other authentication using any type of PKI technology and CONTEGO
shall be the sole provider of digital keys and certificates to GI and/or its
Customers.
6. TAXES. GI shall be solely responsible for and pay all federal,
state, county, local and other government taxes, duties, or excise taxes, in
connection with the sale, licensing, or use
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of the Service. Without limitation, GI shall receive and remit all applicable
transaction and sales tax regarding the provision of the Service to Customers.
7. CUSTOMER WARRANTY. GI will enclose, as part of every Service
agreement, a limited warranty to be prepared by the Parties and to be included
in Exhibit C and D ("Warranty"). Such Warranty shall not require any duties of
CONTEGO in excess of the warranty provided in Section 7 hereof. GI and CONTEGO
agree to fulfill their respective responsibilities under the Warranty. The
Parties agree that the Warranty furnished by GI is the only warranty to be made
with respect to Customers or third parties.
8. WARRANTY TO GI. CONTEGO warrants that, during the term of
contractual authorization by CONTEGO to use the software and Service, the
software and Service will, during normal use within the operating environment
designated in documentation provided by CONTEGO ("Documentation"), substantially
conform to the functions detailed in the Documentation. CONTEGO does not warrant
(a) that the software or Service is error-free, (b) use of the software or
Service will be uninterrupted, (c) the software or Service will meet GI's
requirements or be fit for any particular purpose required by GI other than as
set out in the Documentation, (d) the software or Service will operate in
combination by any means and in any form with any computer hardware or software
not documented for such use in the Documentation, or not specifically approved
in writing for such use by CONTEGO, or (e) the software or Service will provide
any function or adequately perform in any operating environment not designated
in the Documentation. CONTEGO may at its sole option correct, replace, or
discontinue the defective software or Service or defective portions thereof and
the night to have CONTEGO exercise that option shall be the only recourse under
this warranty. THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY. THERE SHALL BE
NO OTHER WARRANTIES EXPRESS OR IMPLIED REGARDING THE SERVICE, INCLUDING
WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE OR
NONINFRINGEMENT OF THIRD PARTY RIGHTS.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL CONTEGO BE LIABLE FOR ANY
LOSS, EXPENSE, OR DAMAGE, DIRECTLY OR INDIRECTLY, BASED ON CLAIMS BY GI OR GI'S
CUSTOMERS, OR ANY THIRD PERSON, ARISING FROM THE USE OR INABILITY TO USE THE
SERVICE FOR ANY PURPOSE, OR FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
10. CHANGES TO TECHNOLOGY. CONTEGO shall have the right to change the
design and/or specification of the PKI Technology, the Trusted Domain Service
Software, the Trusted Domain Client Application, or hardware at any time.
CONTEGO shall have the right to decrease the number and types of Technology
available hereunder or to discontinue the availability of any or all such
Technology without liability to CONTEGO upon sixty (60) days prior written
notice to GI.
11. TRADEMARKS. GI agrees that it will properly identify CONTEGO's
trademarks on all Service related materials and end-user applications referring
thereto. GI shall add a "TM" to each and every use of the trademarks. However,
GI shall not affix or use CONTEGO's trademarks or a "TM" without CONTEGO's prior
written approval, nor shall GI use any other
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trademark or trade name in connection with the Service without CONTEGO's prior
written approval, nor shall GI use any part or modification of CONTEGO's name,
other trademarks, trade dress, or similar rights, without CONTEGO's prior
written approval. Should, during the term, in CONTEGO's sole discretion, the
need arise to replace any of the trademarks or trade names by another trademark
or trade name of CONTEGO to be licensed under this Agreement, GI will, at the
expense of CONTEGO, cooperate and do such acts as are reasonably requested by
CONTEGO to assist such replacement, including but not limited to the
modification of this Agreement to reflect the replacement. In addition, CONTEGO
may, at any time increase or decrease the number of trademarks or trade names,
or otherwise change the trademarks or trade names licensed under this Agreement
by written notice.
12. COPYRIGHTS. GI agrees that it shall not at any time during or after
the term of this Agreement claim any title to any trade secret. proprietary or
confidential information, copyright, patent, or other intellectual property
right CONTEGO or CONTEGO's licensor has in the Service or the Technology, and
title therein shall remain exclusively in CONTEGO and/or CONTEGO's licensor. GI
furthermore agrees that it does not, and shall not at any time during or after
the term of this Agreement claim any title to any programs, methods of
processing, the specific design, screen formats, and structure or interaction
employed as to the Service, Technology, adaptations of Technology, or any part
thereof, and those rights shall remain exclusively in CONTEGO and/or CONTEGO's
licensor. GI shall reproduce and include CONTEGO's copyright and/or trade secret
notices on all copies and adaptations in any form of the Service.
13. TRANSFER OF RIGHTS. In case GI obtains a title or right in
violation of Sections 11 or 12, GI shall at any time during or after the term of
this Agreement promptly do such acts and execute, acknowledge, and deliver all
documents that may be necessary or desirable, in the sole discretion of CONTEGO,
to obtain, maintain, protect, and/or vest in CONTEGO and/or CONTEGO's licensor
the entire right, title, and interest in connection with the rights affected.
14. TERMINATION. Each Party may terminate this Agreement upon the
occurrence of any of the following events:
(a) INSOLVENCY. Except as may be prohibited by the bankruptcy laws
of the United States, in the event of the other Party's insolvency or its
inability to pay debts as they become due, or the filing of a voluntary or
involuntary bankruptcy proceeding by or against such other Party, or the
appointment of a receiver or assignee for the benefit of such other Party's
creditors.
(b) BREACH. A party fails to perform any substantial obligation
herein to be performed on its part, unless such breach is cured within twenty
(20) days following written notice by the other Party.
15. WINDING DOWN. Upon expiration or termination:
(a) All rights granted to GI under this Agreement shall
automatically revert to CONTEGO and GI shall execute any and all documents
required by CONTEGO to evidence the automatic reversion.
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(b) GI shall, without delay, return to CONTEGO all software,
hardware, and any other materials and documentation provided by or on behalf of
CONTEGO relating to the Service. GI shall cease to order, sell or market the
Service or any part thereof. GI agrees to make no use of CONTEGO's trademarks
whatsoever, including, without limitation, regarding the Service or in
advertising, publicity, promotional or display materials, and GI shall, in
CONTEGO's discretion, either deliver to CONTEGO all patterns, proofs, and any
materials that reproduce the trademarks or give to CONTEGO satisfactory proof of
their destruction.
(c) All sublicenses to Customers shall be assigned to CONTEGO
16. INDEMNIFICATION, HOLD HARMLESS.
(a) CONTEGO INDEMNITY. CONTEGO agrees to defend, indemnify and hold
GI harmless against any and all damages, costs, liabilities, expenses and
settlement amounts incurred in connection with any suit, claim, or action by any
third party, arising prior to termination of this Agreement, alleging that, as
of the Effective Date of this Agreement, the Trusted Domain Client Application
or the Trusted Domain Server (the "Software") infringes any U.S. patent or
copyright or trade secret enforceable in the U.S. The foregoing indemnity
obligation shall not extend to any claims of infringement arising out of or
related to (i) a modification of the Software by anyone other than CONTEGO; (ii)
a combination of the Software with any third party software or hardware where
such combination is the cause of such infringement, including without
limitation, the System; or (iii) the use of a version of the Software other than
the then-current version if infringement would have been avoided with the use of
the then-current version. CONTEGO's obligation to indemnify hereunder is subject
to GI (i) giving CONTEGO prompt written notice of any such claim; (ii) giving
CONTEGO sole control over the defense and settlement of any such claim; (iii)
providing full cooperation for the defense of any such claim, at CONTEGO's
expense; and (iv) not entering into any settlement or compromise of any such
claim without CONTEGO's prior written approval. In the event the Software is
held or are believed by CONTEGO to infringe any third party rights, CONTEGO may,
at its sole option and expense, elect to (i) modify infringing Software so that
they are non-infringing; (ii) replace the infringing Software with
non-infringing Software which are functionally equivalent or superior in
performance; (iii) obtain a license to continue to use the Software, as
applicable, as provided hereunder; or (iv) terminate the license for the
infringing Software. THE RIGHTS GRANTED TO GI UNDER THIS SECTION SHALL BE GI'S
SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED THIRD PARTY INFRINGEMENT OF ANY
PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHTS.
(b) GI INDEMNITY. GI agrees to defend, indemnify and hold CONTEGO
harmless against any and all damages, costs, liabilities., expenses and
settlement amounts incurred in connection with any suit, claim, or action by any
third party (i) alleging that the System infringes any copyright, patent,
trademark, trade secret or other proprietary right or (11) against CONTEGO as a
result of (a) the distribution of the Software; (b) negligence,
misrepresentation, error or omission on the part of GI or its representatives
relating or concerning the Software or the Trusted Domain Service; or (c) GI's
breach of its obligations under Section 19 ("Export"). GI's obligation to
indemnify CONTEGO pursuant to this paragraph is subject to CONTEGO giving GI
prompt written notice of any such claim; (ii) giving GI sole control over the
defense and settlement of any such claim; (ill) providing full cooperation for
the defense of any such
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claim, at GI's expense; and (iv) not entering into any settlement or compromise
of any such claim without GI's prior written approval. THE RIGHTS GRANTED TO
CONTEGO UNDER THIS SECTION SHALL BE CONTEGO'S SOLE AND EXCLUSIVE REMEDY FOR ANY
ALLEGED THIRD PARTY INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER
PROPRIETARY RIGHTS.
17. INFORMATION. The Parties shall provide each other with all
information reasonably needed for carrying out their obligations under the
Agreement, and shall promptly answer any reasonable request for information made
by the other Party. Without limitation, GI shall exercise due diligence to keep
CONTEGO informed about GI's and Customers' activities, market conditions and the
state of competition.
18. LEGAL COMPLIANCE. It shall be GI's sole responsibility to conform
its marketing and sale of the Service with the laws, regulations, and standards
applicable. Without limitation, GI's shall provide, at its expense, all required
permits for applying the Service to its System. Except as stated herein, the
Parties will comply with all laws, regulations and other legal requirements that
apply to them under this Agreement, including tax regulations.
19. EXPORT. GI acknowledges that the laws and regulations of the United
States and Australia restrict the export and re-export of certain commodities
and technologies of the respective country's origin, including cryptographic
software, in any medium. GI agrees that it will not knowingly, without prior
authorization if required, export or re-export restricted technologies, either
directly or through resellers, in any medium without the appropriate United
States and/or foreign government licenses. GI further warrants that it shall not
engage in any acts or omissions causing or constituting a violation of licensing
agreements between CONTEGO and its licensor or the RSA licenses applicable to
CONTEGO as these agreements and licenses are disclosed to GI from time to time.
20. CONFIDENTIALITY. GI shall keep the non-public descriptions,
specifications, and plans relating to the Service and its underlying technology
confidential and as a trade secret. The Parties further agree to keep all
non-public information related to the business of each other, including but not
limited to CONTEGO's PKI Technology, the Technology, the Service, and technology
sources, the Parties' strategies, planning information, marketing, existing and
potential customers. financial information, and any other non-public records
(all of the above collectively "Confidential Information") confidential and
agree not to disseminate or allow dissemination of any such Confidential
Information to third parties during and after the term of this Agreement, except
as may be required by law or as reasonable to exercise a Party's rights and
duties under this Agreement under similar confidentiality requirements. The
Parties understand that dissemination of the Confidential Information would be
detrimental to the other, and that the Confidential Information is the exclusive
property of the other. The Parties agree that they shall not, at any time,
directly or indirectly furnish or divulge any Confidential Information to any
person or entity, or use Confidential Information in any way, except to the
extent necessary for the fulfillment of this Agreement or its purposes. Upon
termination of this Agreement, the Parties shall immediately return to each
other all Confidential Information belonging to the other, including., but not
limited to, computer readable disks or tapes, originals and copies of any of any
drawings, documents, records, reports, notes, memoranda, customer lists, plans,
and any other document containing Confidential Information. The confidentiality
clause contained in this Sec-
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tion is reasonable and necessary to protect the legitimate interests of the
Parties and any violation thereof will result in an irreparable injury to the
other Party. The Parties agree that in the event of any violation of this
Section by one Party, the other shall be entitled to injunctive relief and
damages, which remedies shall be cumulative and in addition to any other rights
or remedies to which such other shall be entitled.
21. GENERAL PROVISIONS.
(a) NOTICES. All notices, requests, demands and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given to a Party only if the
notice is faxed to such Party's telefax. number set forth below and delivered by
second day delivery, addressed as set forth below. Notwithstanding the above,
the notice shall be effective at the time the fax transmission is received:
To CONTEGO: (000) 000-0000 To GI: (000) 000-0000
Any Party may change its address or fax number by giving notice of such changes
in conformity with the provisions of this Subsection for the giving of notice.
(b) WAIVER. No waiver of any provision of this Agreement shall be
valid unless it is in writing and signed by the Party against whom or which it
is sought to be enforced. No waiver of any provision of this Agreement at any
time shall be deemed a waiver of any other provisions of this Agreement at such
time or of the same provision at any other time.
(c) INDEPENDENT PARTIES. CONTEGO and GI are independent parties.
Nothing herein shall be construed to make GI an agent, employee, franchisee,
joint venturer, partner or legal representative of CONTEGO. Except as otherwise
provided in this Agreement, GI will neither have nor represent itself to have
any authority to act on CONTEGO's behalf and may not assume any obligation of
any kind, implied or expressed on behalf of CONTEGO. In no event shall this
Agreement confer any right or benefit onto any person or entity that is not a
Party to this Agreement.
(d) FORCE MAJEURE. Neither Party will be liable for any failure or
delay in performing an obligation under this Agreement that is due to causes
beyond its reasonable control, including but not limited to governmental acts or
omissions, laws or regulations, failure to obtain or maintain government
licenses or licensing agreements with third parties for any reason, defaults or
breaches of contract by third parties, natural catastrophes, acts of war, labor
strikes or difficulties. If any of these causes continue or are reasonably to be
expected to continue to prevent or delay performance for more than 90 days, a
Party shall have the right to terminate this Agreement.
(e) SURVIVAL. The provisions of Sections 3(d) (as to payment
obligations), 3 (e)(as to accounting obligations), 4(b), 6, 8, 10 through 12,
and 14 through 21 shall survive the termination of the Agreement.
(f) GOVERNING LAW. This Agreement shall be construed pursuant to
the laws of the United States and the State of California.
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(g) MODIFICATION; AMENDMENT. No modification or amendment of this
Agreement shall be binding unless it is in writing and signed by all of the
Parties hereto.
(h) ASSIGNMENT OF AGREEMENT. Except as stated herein, this
Agreement or any part thereof shall not be assignable without the other Party's
written approval. Any attempt to do so without the other Party's approval shall
be void. Notwithstanding the above, the Parties shall have the right to assign
this Agreement without any prior approval to any successor pursuant to a merger
or consolidation of a Party or the sale of all or substantially all of a Party's
business assets, provided that such successor undertakes to fulfill all
obligations of the assigning Party under this Agreement. Additionally, a Party
shall have the right to assign this Agreement or delegate its obligations
hereunder to any affiliate, provided that the assigning Party guarantees the
obligations to be performed by such affiliate. For purposes of this Agreement,
the term "affiliate" shall mean any corporation or business entity controlled
by, controlling, or under common control with such Party. This Agreement shall
be binding upon and inure to the benefit of the Parties' successors and assigns
to the extent assignment is permitted under this Subsection.
(i) ENTIRE AGREEMENT OF PARTIES. This Agreement contains the entire
agreement and understanding among the Parties hereto with respect to the subject
matter hereof, and supersedes all prior agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
(j) ARBITRATION.
(i) General. Any dispute arising, out of or in connection with
the present Agreement shall be finally settled by compulsory arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"), as modified or supplemented under this Section; provided,
however, that in the event of any such controversy or claim, (I) neither Party
will initiate arbitration within the first thirty (30) days after the aggrieved
Party first notifies the other Party of the controversy or claim and (ii) during
such 30-day period, the chief executive officers or designated representatives
of both Parties shall convene in San Francisco, California, U.S.A. to endeavor
in good faith to amicably resolve the controversy or claim.
(ii) Proceeding. To initiate arbitration, either Party shall
file the appropriate notice at the Regional Office of the AAA in San Francisco,
California, U.S.A. The arbitration proceeding will take place during a period
not exceeding two (2) days by telephonic conference call, and will consist of
one (1) arbitrator appointed by the AAA. Any communication between a Party and
the arbitrator will be directed to the AAA for transmittal to the arbitrator.
The Parties expressly agree that the arbitrator will be empowered to (1) issue
an interim order or award and (ii) grant injunctive relief.
(iii) Award. The arbitration award shall be the exclusive
remedy of the Parties for all claims, counterclaims, issues or accountings
presented or plead to the arbitrator. The award will (i) be granted and paid in
U.S. Dollars exclusive of any tax, deduction or offset and (ii) include interest
from the date of breach or other violation of the Agreement until the
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award is fully paid, computed at four percent (4%) over the then current prime
rate provided by Bank of America. Judgment upon the arbitration award may be
entered in any court that has jurisdiction thereof. Any additional costs, fees
or expenses incurred in enforcing the arbitration award will be charged against
the Party that resists its enforcement.
(k) REMEDIES. The rights and remedies provided for in this
Agreement shall not be mutually exclusive, nor shall they be exclusive of any
other remedies.
(l) ATTORNEY FEES. In the event of any adversarial proceeding
between the Parties with respect to this Agreement or the transaction
contemplated by this Agreement, the prevailing Party shall be entitled to
reasonable attorney's fees, expenses, and costs incurred therein from the other
Party.
(m) SEVERABILITY. If any provision of this Agreement is declared
void or unenforceable or contrary to mandatory law, such provision shall be
deemed severed from this Agreement to the extent affected and this Agreement
shall otherwise remain in full force and effect and shall be construed to effect
the objectives stated in this Agreement to the largest extent permissible by
law. However, if a Party reasonably deems a provision severed essential to this
Agreement, that Party shall have the right to terminate this Agreement.
(n) AUTHORITY TO BIND. Each person executing this Agreement hereby
warrants that the person has full and legal authority to execute this Agreement
for and on behalf of the respective Parties and to bind such Parties.
(o) JOINT RESPONSIBILITY. Each Party is willing to and does assume
joint responsibility for the form and composition of each and all the contents
of this Agreement, and further agrees that this Agreement and its Exhibits shall
be interpreted as though each of the Parties participated equally in the
composition of this Agreement, its Exhibits, and each and every part thereof.
(p) UNITED STATES GOVERNMENT. The Trusted Domain Client Application
and the Trusted Domain Server are "commercial computer software", as such term
is used in 48 C.F.R. 12.212 of the Federal Acquisition Regulations ("FAR") and
its successors and 48 C.F.R. through 227.7202-4 (June 1995) of The Department of
Defense FAR Supplement and its successors. All U. S. Government customers
acquire the Trusted Domain Client Application only with the rights set forth in
The applicable end user agreement.
(q) CAPTIONS. The captions of Sections and Subsections contained in
this Agreement are for convenience of reference only, and they neither form a
part of this Agreement nor are they to be used in the construction or
interpretation hereof
(r) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and if executed in counterpart by all required Parties, each
executed copy shall be deemed an original, but all counterparts together shall
constitute one and the same agreement.
(s) TIME IS OF THE ESSENCE. In the performance of any and all of
the terms, covenants, provisions, warranties, and conditions of this Agreement,
time is of the essence.
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IN WITNESS WHEREOF, the Parties have executed this Agreement the day,
month and year set forth beneath their signatures below.
CONTEGO, L.L.C. GRIDNET INTERNATIONAL
Date: 12/12/97 Date: 12/11/97
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxx Xxxxxx
-------------------------------- --------------------------------
as its authorized representative as its authorized representative
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EXHIBIT A
"Trusted Domain Service" Integration Overview
The following is a high-level overview of how the Contego network authentication
is currently intended to be Integrated into the existing GridNet System to
enable the provision of the "Service". This design may change for any number of
reasons, and is provided here only for information purposes.
Existing Components:
NETWORK ACCESS SERVER - This is the dial-up entry point for clients attempting
to access the GridNet VPN. The Access Server manages various widely used client
authentication authorization protocols such as CHAP and PAP, and communicates
with back-end Authentication Servers using both TACACS and RADIUS. It's worth
noting that GridNet must support a heterogeneous mix of vendors for this
component including; CISCO. Ascend Communication and possibly others.
BABY - This system serves primarily as a front end to the Tandem Security
Servers. By implementing an efficient (proprietary) protocol between the BABY
and the Tandems, GridNet can realize performance efficiencies, but for all
practical purposes, this box is transparent to our implementation.
TANDEM SECURITY SERVER - This is the system which is responsible for managing
user databases as well as authentication, authorization and accounting for all
network usage. This system directs the Access Server as to who to allow on the
network, where to let them go, and what to allow them to do. All permissions are
based on the customer's and end-user's profiles, maintained in the local
database. There are multiple Tandems distributed at the GridNet supernodes
providing redundancy and fail-over to assure continuous availability. The user
databases are updated in near real-time.
GRIDNET NETWORK ACCESS CONTROL (GNAT) - This system's primary role is one of IP
address translation, which is the foundation of the GridNet VPN scheme. Once an
address translation is configured into it (which is done at log-on time), all
packets have their IP addresses translated as they pass through the GNAT.
NEW COMPONENTS:
TRUSTED DOMAIN CLIENT APPLICATION - This is the Contego specific Win95
application which will interface to the Windows WIN32 API which will support a
PPP server connection to the GridNet network and interface with the Trusted
Domain Server. The TD-Client provides the end-user interface and will perform a
two-phase logon to the GridNet - first, a simple PAP or CHAP logon, which if
successful will then complete a second cryptographically authenticated logon
through the Trusted Domain Server.
TRUSTED DOMAIN SERVER - This is a server application built on top of SECURserver
or SECURuser. This server will perform the second cryptographically
authenticated logon dialog with the
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Trusted Domain Client Application using a proprietary protocol. It will also
communicate with the GNAT to set up, and change, IP address translations for the
sessions it has authenticated.
SERVICE ID - The Service ID is a designator [*] the UserID which is assigned to
each user configured in the GridNet User Database. The Service ID is [*]. This
Service ID is used by the GNAT to determine what IP address or range of IP
addresses a user will be granted access to within a specific VPN. A single user
may have multiple Service ID's.
The following diagram is provided as a reference for the authentication and
authorization sequence to follow:
[DIAGRAM - [*]]
1. The Trusted Domain Client Application will initiate the logon request,
requiring the user to enter their user ID, [*] and password. From the
user's perspective this is no different than what is done today. This
service identifier information [*] file delivered to the end user when
they are registered for the "Trusted Domain" (TD) Service. The Contego
client application will retrieve this information from the file when
the certificate is imported.
2. The Access Server will support the existing authentication protocols
(e.g. PAP, CHAP) [*], and will request user authorization [*].
3 Based upon the service identifier, [*] and will respond to the
Contego client, assigning a [*] IP address to the client
application.
4. The [*] sends [*] with [*] address and [*] addresses as parameters [*].
The [*] address will be the [*] address assigned to the client
application. This tells [*] from a client with the specified IP
address. The [*] address is the address [*] to the client within the
VPN once the client has been authenticated by the [*] Server. In
addition, [*] a service to this session that will only allow the new
user to access the [*] of the [*] Server.
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5. Upon receipt of the [*], the Contego client will initiate a [*]. This
is [*] the Contego client application with no additional input required
by the user. This application request will be routed to [*] which has a
[*]. This is the [*] application [*] at this point.
6. The [*] responds to the client application [*].
7. The [*] application [*] and [*] the [*] with the user's [*] and sends
it [*] to the [*].
8. The [*] verifies the [*] from the [*].
If the [*] is [*]:
The [*] sends [*] to [*] with the [*] for this [*] along with the [*] with a [*]
to the front of the [*].
IF THE [*] IS [*]:
The [*] sends [*] to [*] with [*] and [*].
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