Exhibit 10.1
PRIMARY RESELLER AGREEMENT
(DEVICE REGISTRATIONS)
(THE AMERICAS)
THIS AGREEMENT is made and effective as of the 30th day of December 2006,
BETWEEN:
MIDNET, INC.
a Delaware Corporation with an office at Suite 300 -
1055 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
("MIDNET")
AND:
FUNDAMENTAL STRATEGIES INC.
a California corporation
with an office at 00000 Xxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
("RESELLER ")
WHEREAS:
A. MidNet provides device fingerprinting services (the "MIDNET SERVICES") to
it's clients through or related to The Middle Network ("TMN");
B. MidNet desires to establish a primary Reseller to promote and sell the
MidNet services in the Americas;
C. Reseller provides sales and marketing services (the "RESELLER SERVICES") in
the Americas;
D. MidNet desires for Reseller to market and sell MidNet Services in the
Americas;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged by the Parties, the Parties covenant and agree
with each other as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS
In this agreement unless the context otherwise requires:
"AGREEMENT" means this agreement;
"ASSIGNMENT" means the transference of this Agreement by Reseller to a
third party acceptable to MidNet;
"AUTHENTICATED" means a device that can be authenticated with its
Fingerprint that has been Registered by TMN;
"CONFIDENTIAL INFORMATION" means all information which one of the
Parties will have access to or come into possession of which is
confidential and proprietary to the other Party and which is either
declared to be confidential or proprietary in nature and includes, but
is not limited to , the terms and pricing for the Products and
Services, all information contained on or accessible through the
Partner Portal, as defined hereafter, any information disclosed by any
third party which the third party is obligated to treat as
confidential or proprietary to one of the Parties hereto, trade
secrets, know-how, processes, standards, product specifications,
marketing plans and techniques, cost and financial pricing figures,
all client or customer information (including without limitation their
names, financial information, address or telephone number), all
systems software applications, all software/systems source and object
code, data, documentation, program files, flow charts, and all
operational procedures;
"DEVICE" means all (i) personal computers utilizing Microsoft
Corporation's operating systems, (ii) personal computers utilizing
Apple operating systems, (iii) personal computers utilizing Unix
operating systems, (iv) personal computers utilizing Linux operating
systems and (v) videophones utilizing embedded operating systems;
"FINGERPRINTED" means a device that has been identified by its unique
characteristics through TMN;
"PARTY" means either Reseller or MidNet as is appropriate in context
and "PARTIES" means both or either of Reseller and MidNet as is
appropriate in context;
"REGION" means the territory of the Americas (North and South America)
covered by the Agreement;
"REGISTERED" means a device that can be Authenticated as it has been
Fingerprinted and Registered with TMN;
"REGISTRATION" means the act of registering a Device with TMN;
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"THE MIDDLE NETWORK" or "TMN" means the network environment controlled
by MidNet to Fingerprint, Authenticate and Register devices, and to
transfer data in support of application services.
1.2. HEADINGS
The division of this Agreement into articles, sections, and/or
subsections and the provision of headings for all or any of them are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
1.3. USAGE
In this Agreement, unless there is something in the subject matter or
context inconsistent therewith:
(a) words importing the singular shall include the plural and vice
versa; and
(b) words importing gender shall include masculine, feminine and
neuter genders.
1.4. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
2. RELATIONSHIP OF THE PARTIES
2.1. NOT A PARTNERSHIP
This Agreement does not and shall not be construed to create a
partnership, joint venture, agency or any other business relationship
which would authorize either Party to act on behalf of the other or in
the name of the other. Each of the Parties is and will remain
completely independent of the other.
3. RESPONSIBILITIES OF THE PARTIES
3.1. DEVICE REGISTRATION RESELLER RIGHTS
3.1.1. Reseller has the right to sell up to six (6) million Device
Registrations at a price not to exceed $4 USD per Registered
Device;
3.1.2. Reseller will pay to MidNet $2 USD per Registered Device;
3.1.3. Reseller will pay to MidNet in advance for each Registered
Device;
3.1.4. Reseller will pay to MidNet one hundred thousand USD ($100,000
USD) for the right to resell Device Registrations for TMN;
3.1.5. Reseller will have the right to resell Device Registrations in
the Region (in the Americas);
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3.1.6. MidNet may sell directly to any client in the Region without
compensating Reseller prior to payment being received by MidNet
as specified in Item 3.1.4;
3.1.7. In the event that MidNet sells directly to any client in the
Region, or permits another reseller to sell directly to a
client in the Region allocated to Reseller, after receiving
payment as specified in Item 3.1.4, then MidNet will compensate
Reseller at the rate of 10% of the selling price per Device
Registration so sold within Reseller's region.
3.2. RESELLER QUOTAS
Once MidNet has approved the production version of the Uniloc Software
used to Fingerprint, Authenticate, and Register Devices through TMN,
the Reseller must meet the following quotas in order to retain the
rights specified in Item 3.1.
3.2.1. Within the first ninety (90) days 500,000 Authenticated and
Registered Devices;
3.2.2. Within the second ninety (90) days 500,000 Authenticated and
Registered Devices;
3.2.3. Within the third ninety (90) days 500,000 Authenticated and
Registered Devices;
3.2.4. Within the fourth ninety (90) days 500,000 Authenticated and
Registered Devices;
3.2.5. Within the fifth ninety (90) days 1,000,000 Authenticated and
Registered Devices;
3.2.6. Within the sixth ninety (90) days 1,000,000 Authenticated and
Registered Devices;
3.2.7. Within the seventh ninety (90) days 1,000,000 Authenticated and
Registered;
3.2.8. Within the eighth ninety (90) days 1,000,000 Authenticated and
Registered Devices.
3.3. RESELLER TERMS
Reseller will sell according to the terms specified by MidNet.
4. USE OF NAME
Neither Party will use the name of the other in any news release, public
announcement, advertisement or other form of publicity, without the prior
consent of the other Party.
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5. TERM AND TERMINATION
5.1. TERM OF THE AGREEMENT
The term of this agreement shall be three (3) years from the date of
signing.
5.2. TERMINATION FOR DEFAULT
Either Party may terminate this Agreement, effective immediately, if
the other commits a material breach of it, commits any material
fraudulent act in performing any of its obligations or makes any
material misrepresentation to the other or commits an act of
malfeasance or misfeasance in the performance of its or his duties or
is unable or unwilling to perform its obligations and duties under
this Agreement which circumstances will include, but not be limited
to:
(a) if a receiver, trustee in bankruptcy or similar officer is
appointed to take charge of any of its assets; or
(b) if it files for relief under any applicable bankruptcy laws.
5.3. TERMINATION FOR NON-PAYMENT
This Agreement will terminate immediately in the event that full
payment has not been received by MidNet within forty-five (45) days
after MidNet has approved the production version of the Uniloc
Software used to Fingerprint, Authenticate, and Register Devices
through TMN.
5.4. TERMINATION FOR NON-PERFORMANCE
This Agreement will terminate immediately in the event that the quotas
itemized in Item 3.2 are not met.
6. CONFIDENTIALITY
6.1. CONFIDENTIAL INFORMATION
Each of the Parties acknowledges that in the course of their
relationship pursuant to this Agreement, each (the "RECEIVING PARTY")
will have access to or come into possession of Confidential
Information of the other Party (the "DISCLOSING PARTY"), and that the
disclosure of such Confidential Information to third parties or to the
general public would be detrimental to the best interests and business
of the Disclosing Party.
6.2. EXCEPTIONS TO CONFIDENTIAL INFORMATION
Notwithstanding the definition of Confidential Information and the
provisions of section 6.1, "Confidential Information" does not include
information or data, which the Receiving Party can prove, is:
(a) publicly known at the time of disclosure;
(b) already known by the Receiving Party at the time it receives the
information;
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(c) provided to the Receiving Party by a third party that is not
under obligation to keep such information confidential; or
(d) independently developed by the Receiving Party without use of any
Confidential Information of the Disclosing Party.
6.3. LIMITATIONS ON USE
The Receiving Party will not, during the term of this Agreement or at
any time thereafter:
(a) disclose any Confidential Information to any person;
(b) use or exploit, directly or indirectly, the Confidential
Information for any purpose other than the proper purposes of the
Disclosing Party; or
(c) disclose for any purpose, other than those of the Disclosing
Party, the private affairs of the Disclosing Party or any other
information which the Receiving Party may acquire during the term
of the Agreement with respect to the business and affairs of the
Disclosing Party, whether acquired in the course of carrying out
the Agreement or incidentally.
6.4. REQUIRED DISCLOSURE
Notwithstanding the foregoing, the Receiving Party will be entitled to
disclose Confidential Information if required by law provided that the
Receiving Party will promptly notify the Disclosing Party, consult
with the Disclosing Party and cooperate with the Disclosing Party in
an attempt to enjoin, to resist or narrow such disclosure or to obtain
an order or other assurance that such information will be accorded
confidential treatment.
6.5. SURVIVAL OF CONFIDENTIALITY
All covenants of confidentiality herein shall survive the Term of this
Agreement by three (3) additional years counting from the date of
termination of this Agreement.
7. MISCELLANEOUS
7.1. NO WAIVER
The failure by either Party to enforce or take advantage of any of the
provisions of this Agreement shall not constitute nor be construed as
a waiver of such provisions or of the right subsequently to enforce or
take advantage of each and every such provision.
7.2. DISPUTES
The Parties will attempt to settle any claim or controversy relating
to this Agreement through consultation and negotiation in good faith
and a spirit of mutual cooperation. If those attempts fail, then a
mutually acceptable mediator, chosen by the Parties within forty-five
(45) days after written notice from one of the parties to the other,
demanding mediation, will mediate the dispute. Neither party may
unreasonably withhold consent to the selection of a mediator. The
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Parties will share the costs of the mediation equally and each shall
bear its own costs. Any dispute which the parties cannot resolve
between themselves through negotiation or mediation within ninety (90)
days after the date of the initial demand for mediation may then be
submitted to the courts for final resolution. Nothing in this
paragraph will prevent either party from resorting to judicial
proceedings if:
(a) good faith efforts to resolve the dispute under these procedures
have been unsuccessful; or
(b) interim relief from a court is necessary to prevent serious and
irreparable injury to one party or to others.
7.3. NOTICES
Any formal notice between the Parties hereto will be in writing and
may be delivered by any method, including email, provided receipt is
acknowledge by the receiving party or it may be either personally
delivered or sent by facsimile or by registered mail to the
appropriate party at the address noted for that party on the first
page of this Agreement, or such other address as may be designated by
a party in a written notice sent to the other party in accordance with
this paragraph. Any notice or other communication sent by registered
mail will be effective seven calendar days from the day that it was
sent, or if by any other method in accordance with this paragraph, the
day following its receipt.
7.4. ASSIGNMENT
7.4.1. Reseller may assign this Agreement to a third party acceptable
to MidNet
8. GENERAL
8.1. ENTIRE AGREEMENT
This Agreement and all documents contemplated by or delivered under or
in connection with this Agreement constitute the entire Agreement
between the Parties with respect to the subject matter of this
Agreement, and supersede all prior agreements, negotiations,
discussions, undertakings, representations, warranties and
understandings, whether written or oral, express or implied, statutory
or otherwise.
8.2. AMENDMENT
No amendment, supplement, or restatement or termination of any
provision of this Agreement is binding upon the Parties hereto unless
it is in writing and signed by an authorized representative of each
Party to this Agreement at the time of the amendment, supplement,
restatement or termination.
8.3. SEVERABILITY
If any provision or any portion of any provision of this Agreement
shall be held unlawful or unenforceable, the balance of such provision
and all other provisions hereof shall nonetheless in all respects
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remain binding and effective and shall be construed in full force and
effect to the extent lawfully permissible.
8.4. TIME OF ESSENCE
Time is of the essence in the performance of the terms and conditions
of this Agreement.
8.5. ENUREMENT
This Agreement enures to the benefit of and binds the Parties and
their respective heirs, executors, administrators, successors and
permitted assigns.
8.6. COUNTERPART SIGNATURE AND FACSIMILE DELIVERY
This Agreement may be executed in two or more counterparts and may be
delivered by facsimile, each of which will be deemed to be an original
and all of which will constitute one agreement, effective as of the
Effective Date.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives:
FUNDAMENTAL STRATEGIES, INC MIDNET, INC.
Per: /s/ Xxxxx X. Xxxxxx Per: /s/ Xxxx Xxxx
--------------------------------- --------------------------------
Authorized Signatory Authorized Signatory
Xxxxx X. Xxxxxx Xxxx Xxxx
--------------------------------- ------------------------------------
Title: president / CEO Title: president / CEO
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