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EXHIBIT 10.1.6
MASTER AGREEMENT
(JAWS TECHNOLOGIES INC.)
This AGREEMENT (the "Agreement") is entered into as of, (the "Agreement Date"),
between CALGARY ON-LINE ("Calgary On-Line"), with an address for purposes of
this Agreement at 302,100-4th Avenue S.W., Calgary, Alberta, T2P 3N2 ("Calgary
On-Line"), and JAWS Technologies Inc. ("JAWS"), whose principal place of
business for purposes of this Agreement is Xxxxx 000-000 0XX Xxxxxx X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0.
BACKGROUND
A. JAWS and Calgary On-Line desire to work together with the goal of
furthering the marketing of the professional services and products of JAWS.
B. JAWS desires to enhance its consulting service and product revenues
by offering services in connection with Calgary On-Line's services.
C. Calgary On-Line desires to enhance its capabilities to market and
support Calgary On-Line's in connection with the use of JAWS services.
D. JAWS and Calgary On-Line desire to formalize their relationship by
entering into this Agreement to undertake cooperative efforts in connection with
the products and services of JAWS.
NOW, THEREFORE, JAWS and Calgary On-Line agree as follows:
1. DEFINITIONS. The following capitalized terms shall have the meanings
given to them below when used in this Agreement:
"AGREEMENT DATE" shall have the meaning given to it in the introductory
paragraph of this Agreement.
"PRODUCTS" refers to all products listed in Schedule "A" and Schedule
"B" of this Agreement.
"PROPRIETARY INFORMATION" means:
(i) with respect to JAWS, the Products and all
confidential information and trade secrets contained in the
Products, including benchmark results, and any other information
of JAWS or its licensors which by its nature is generally
understood to be of a confidential nature; and
(ii) with respect to Calgary On-Line, any
information of Calgary On-Line or of any customer of Calgary
On-Line which Calgary On-Line indicates is confidential or which,
by its nature, is generally understood to be confidential
information and,
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without limiting the generality of the foregoing, includes all
customer lists and pricing information of Calgary On-Line.
Information is not Proprietary Information to the extent that it:
(A) is or becomes publicly available through no act
or failure of the receiving party; or
(B) is rightfully acquired from a third party
which, to the receiving party's knowledge, is not
obligated to keep that information confidential; or
(C) is independently developed by the receiving
party.
"SERVICES" refers to all services listed in Schedule "A" Key Management
Server Pricing and Schedule "B" Software & Services Pricing of this
agreement.
"SOFTWARE LICENSE AGREEMENT" means the encryption software license
agreement(s), as amended from time to time, to be executed by JAWS and
Calgary On-Line in connection with the Products.
2. SERVICES AND RESPONSIBILITIES OF JAWS
(a) Employee Training. JAWS will provide to Calgary On-Line
product and service training sessions at no additional charge to Calgary
On-Line. These training sessions will pertain specifically to the
products and services contracted for by Calgary On-Line. Refer to
Schedule "C" of this agreement for details regarding training sessions.
(b) Marketing Events. JAWS shall participate in and, if requested
by Calgary On-Line, assist in the organization and implementation of, the
jointly sponsored marketing events to be agreed upon by the parties as
part of the business plan referred to in Section 4 below.
(c) JAWS Coordinator. JAWS shall designate a coordinator with
appropriate authority to coordinate JAWS's activities with Calgary
On-Line and act on behalf of JAWS within the scope of this Agreement.
3. SERVICES AND RESPONSIBILITIES OF THE PARTIES. To the extent reasonable
under the circumstances and as permitted by each party's other
agreements, the parties shall undertake the following cooperative
activities with respect to identifying opportunities to promote the
Products and Services:
(a) Market Information. Each party shall regularly inform the
other party about general market developments and factors relating to the
Products in the marketplace and current projects and customer
implementations in which they are involved. This information shall be
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designated and treated as Proprietary Information of the party providing
the information.
(b) Business Plan. Each party shall furnish the other party with
appropriate information for support and planning purposes, provided that
the furnishing party may determine, in its sole discretion, the content
and availability of such information. The parties will work together to
develop a business plan for their marketing efforts in connection with
this Agreement. Each party shall use commercially reasonable efforts to
meet the goals in the business plan.
(c) Internal Notification. Each party shall inform the appropriate
personnel in its organization of the existence of this Agreement.
(d) New Product Information. Each party shall endeavor to keep the
other party appraised about new products and services relating to the
Products.
(e) Other Information. The parties shall exchange such other
information and conduct such other activities as the parties agree will
carry out the intent of this Agreement.
(f) Periodic Review. The parties shall meet at least twice a year
to review the status of their arrangement under this Agreement.
4. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
(a) Representations and Warranties. Each party hereby represents
and warrants to the other party that:
(i) Authority. It has the right and power to enter into this
Agreement.
(ii) No Violation. Entering into this Agreement does not
violate the terms and conditions of any of its other agreements
providing for cooperative marketing of products of another entity, or
any other legal obligations.
(iii) No Infringement. The products, materials and information
it provides under this Agreement to the other party do not infringe
upon or constitute a misappropriation of any copyright, trademark,
patent, trade secret or other proprietary right of any third party in
the Territory.
(b) Disclaimer of Warranty. EXCEPT AS SPECIFICALLY SET FORTH IN
THIS SECTION 5, NEITHER PARTY MAKES ANY WARRANTY TO THE OTHER PARTY,
EITHER EXPRESS, IMPLIED OR STATUTORY, NOR SHALL ANY WARRANTY ARISE BY
COURSE OF CONDUCT OR BY PERFORMANCE, CUSTOM OR USAGE IN THE TRADE,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
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5. TERM AND TERMINATION
(a) Initial Term. This Agreement shall have an initial term
commencing on the Agreement Date and continuing on perpetually, unless
terminated by either party.
(b) Termination. Each party may terminate this Agreement:
(i) In the event the other party fails to cure a material
breach of this Agreement within 30 days after receiving written
notice of that breach; or
(ii) immediately upon written notice if: (A) there is a
consolidation, merger or reorganization of the other party with or
into another corporation or entity; (B) there is a creation of a new
majority interest in, or change in majority ownership or control of,
the other party; (C) there is a sale of all or substantially all of
the assets of the other party; or (D) the other party breaches the
confidentiality provisions set forth in Section 9, below; or
(iii) upon 90 days prior written notice to the other party,
with or without cause.
(c) Effect of Termination or Expiration. Upon termination or
expiration of this Agreement, each party shall cease acting in a manner
that would suggest any continuing relationship between the parties
regarding the Products, and shall cease all display and advertising
contemplated under this Agreement. Within 30 business days after the
termination or expiration, each party shall return to the other party or
dispose of (as mutually agreed) all advertising materials and other
property, including all Proprietary Information, furnished to it by the
other party pursuant to this Agreement. Each party shall certify in
writing to the other that it has done so. Termination or expiration of
this Agreement shall not affect any obligation either party has to its
customers. The following provisions of this Agreement shall in all events
survive its termination or expiration: Section 4 (Representations,
Warranties and Disclaimers), 5 (Term and Termination), 6 (Relationship of
the Parties), 7 (Intellectual Property Rights), 8 (Confidentiality of
Proprietary Information), and 11 (General Provisions).
6. RELATIONSHIP OF PARTIES. The following provisions shall apply to the
relationship of the parties, notwithstanding any other provision of this
Agreement:
(a) Independent Companies. JAWS and Calgary On-Line are
independent companies acting for their own account, and neither party is
authorized to make any representation or commitment on behalf of the
other party. Neither party shall use the terms "joint venture",
"partner", "partnership" or similar terms to describe the relationship
between the parties under this Agreement. Any inadvertent use of such
terms shall refer to the spirit of cooperation between the parties and
shall not create a legal partnership or joint venture or any
responsibility by one party for the actions of the other, either
expressly or by implication.
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7. INTELLECTUAL PROPERTY RIGHTS
(a) TRADEMARKS, ETC. This Agreement does not authorize either
party to use or display any names, trademarks, logos or service marks of
the other party except to identify Products and Services to the extent
permitted by this Agreement. Either party may use the trademarks or other
proprietary words or symbols of the other party to properly identify the
Products or Services of the other party in correspondence and proposals
issued in the ordinary course of business to the extent such use would be
permitted by applicable law in the absence of this Agreement. Except as
described in the preceding sentence, each party shall submit to the other
party for written prepublication approval, any materials which may use or
display any name, trademark, logo or service xxxx of the other party.
8. CONFIDENTIALITY OF PROPRIETARY INFORMATION. Each party acknowledges
that, during the term of this Agreement, it will receive Proprietary
Information from the other party. Each party shall protect the
Proprietary Information of the other party with at least the same
protection and care that it customarily uses in safeguarding its own
confidential information of a similar nature, but shall use no less than
a reasonable degree of care and will not use the Propriety Information of
the other party for any purpose other than in direct connection with the
relationship described under this Agreement. Each party will disclose the
other party's Proprietary Information to its personnel only on a
need-to-know basis. Each party shall take reasonable steps to advise its
employees of the confidential nature of the other party's Proprietary
Information and their obligation to comply with the confidentiality
requirements in this Agreement. Each party will promptly notify the other
if it believes that Proprietary Information has lost its status as such.
9. FINANCIAL OBLIGATIONS.
(a) Royalties. JAWS agrees to provide Calgary On-Line with the
management and maintenance of the Key Management Server. This server will
adhere to the specifications agreed to by both parties for E-mail
encryption services. This server will be located at 000, 000-0xx Xxxxxx
X.X. Xxxxxxx, Xxxxxxx, being JAWS's principal place of business. The
parties may from time to time by mutual agreement provide other services
pursuant to this agreement for such terms and at such costs as may be
agreed by the execution of additional schedules covering such items and
such schedules shall constitute part of this agreement for all purposes
as if the provisions there of were set forth herein.
(i) Calgary On-Line will pay JAWS the royalties for the Key
Management Server, as per Schedule "A" of this agreement. These
royalties will be calculated in accordance with the table on Schedule
"A" attached. For clarity, Calgary On-Line will not be permitted to
charge to any recipient of an encrypted E-mail for the decryption of
that E-mail and there will no additional charge from JAWS to any
customer of Calgary On-Line for the decryption of such encrypted
E-mail.
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(b) Reseller. JAWS hereby appoints Calgary On-Line as a reseller
of, and grants to Calgary On-Line the right to resell as per Schedule "B"
of this agreement. For clarity the software and services as of the
agreement date are:
L5 E-MAIL ENCRYPTION SOFTWARE
L5 DATA ENCRYPTION SOFTWARE
SECURITY AUDITS
(i) Distribution. JAWS agrees to supply to Calgary On-Line
master distributable images of Software Products. JAWS further agrees to send
new master distributable images of Products within fourteen (14) days of release
of revised versions of Products. JAWS also agrees to notify Calgary On-Line
within fourteen (14) days of discontinuation of Product.
(ii) Downloads and Collection. Calgary On-Line further agrees
to make the Software Products available for download and payment from customers
via the Internet. Calgary On-Line shall make reasonable efforts to maintain the
availability of on-line delivery and payment. However, JAWS acknowledges that
periodic computer server and network failures are unavoidable and thus will not
hold Calgary On-Line liable for damages or losses incurred as a result of such
failures.
(iii) Shipping. For L5 products that are not delivered by
download via the Internet, JAWS agrees to forward all necessary customer and
shipping information to Calgary On-Line's fulfillment center after the
transaction has been approved by JAWS. Calgary On-Line is responsible for
ensuring that Product is shipped to customer according to preference and time
frame selected by Customer. In the case that Products have not been shipped to
Customer within three business days, Calgary On-Line will refund payment to
Customer.
(iv) Force Majeure. Neither party shall be liable for the
failure to perform any of its obligations under this agreement, except for
payment obligations, if such failure is caused by the occurrence of any event
beyond the reasonable control of such party, including without limitation, fire
flood, strikes, and other industrial disturbances, failure of raw materials,
suppliers, failure of transport, accidents, riots, insurrections, acts of God or
orders of governmental agencies.
(v) Audit. For all audit services JAWS agrees to forward all
necessary customer information to Calgary On-Line, and to provide sales support
as required.
(vi) Direct Sales and Distribution Sales. For the direct sales
of Products described in Schedule "B", Calgary On-Line will pay to JAWS the
price specified in Schedule "B". For services provided to service customers,
JAWS will pay Calgary On-Line the amounts
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specified in Schedule "B".
(vii) Payments and Reports. Payments shall be made on the
thirtieth (30th) day of each month, or the last day of February, for
sales of the previous month. Calgary On-Line shall provide JAWS a
monthly report detailing the Products sold and amounts collected.
(viii) Returns. If under any circumstance a payment
transaction for a Product is reversed, the net amount of the reversal
will be deducted from the amount of the payment due to JAWS. If returns
exceed sales in any given month, JAWS agrees to make payment sufficient
to cover returns. JAWS will accept the return or exchange of any
normally stocked product purchased from JAWS which is unopened for up to
30 days after the date of purchase. All Hardware Items must be returned
within fourteen (14) days. A defective Product may be exchanged for the
same title only and, in this case, the entire package (box, contents,
and product-registration card) must be included. Calgary On-Line will
also refuse payment for the distribution of Products to any Customer
that is clearly abusing the system by processing a large percentage of
returns.
(ix) Charge Backs. If a payment transaction for a Product is
reversed due to a credit card chargeback, the net amount of the reversal
will be deducted from the amount due to JAWS. A credit card chargeback
will be allowed if Calgary On-Line is bound to reverse or reimburse a
credit card payment made to Calgary On-Line because the credit card
provider directs it to do so or, as it is otherwise required by law.
(x) Records and Audits. Calgary On-Line shall keep records and
accounts in accordance with generally accepted accounting principles to
show the amount of proceeds payable to JAWS. Calgary On-Line shall keep
these records at Calgary On-Line's principal place of business. JAWS
shall have the right to conduct at its sole expense an audit of such
records by an independent auditor during regular business hours upon
five (5) days prior written notice once per calendar year to determine
Electronic Distributor's compliance with this Agreement.
10. MOST FAVORED CUSTOMER PRICING. JAWS warrants that it has not, directly
or indirectly, entered into any agreement relating to the Products and
Services which provides pricing terms which are more favorable than the
pricing terms specified in this Agreement. If JAWS has entered into any
such agreement, or in the future enters into any such agreement, which
contains pricing terms which are more favorable than the pricing terms
specified in this Agreement, then JAWS will immediately notify Calgary
On-Line and extend the same pricing terms to Calgary On-Line.
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11. GENERAL PROVISIONS
(a) Non-Solicitation. During the term of this Agreement and for a
period of 12 months thereafter, personnel of either party who have been
directly and substantially involved in the performance of such party's
obligations under this Agreement shall not knowingly directly or
indirectly solicit for employment any of the other party's personnel who
have been directly and substantively involved in the performance of this
Agreement, without the prior written consent of the other party.
(b) Notice. All notices required to be given under this Agreement
shall be in writing and will be deemed given when actually received. All
notices shall be sent to the receiving party's address as set forth
below, or to such other address that a party provides as required by this
Section 11(b).
For JAWS:
JAWS Technologies Inc.
000 000 - 0 Xxxxxx X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxx Xxxxxx, VP Sales & Channel Development
And to:
For Calgary On-Line:
Calgary On-Line
000-000-0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X0X0
Attn: Xxxxx Xxxxxx, President
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Province of Alberta, without
reference to its choice of law rules.
(d) Amendments. This Agreement may not be modified except in
writing signed by both parties.
(e) Severability. If any provision of this Agreement is held
invalid, such provision shall be deemed severed and the remaining
provisions shall be interpreted so as best to reasonably effect the
intent of the parties.
(f) Non-Assignment. Neither party may assign, transfer or delegate
this Agreement, or any of its rights or obligations under this Agreement
to any third party, other than a party
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controlling, controlled by or under control with the assigning party,
without the prior written agreement of the other party. Subject to the
above, this Agreement shall be binding upon and inure to the benefit of
the parties of this Agreement, as well as their respective permitted
successors and assigns. Any assignment permitted under this section will
not release the assignor from liability under this Agreement.
(g) Waiver. Failure by any party to enforce any of the terms or
conditions of this Agreement, in any one or more instances, shall not be
construed as a waiver of the future performance of any such terms or
conditions.
(h) Limitation on Damages. Neither party (nor any of its
licensors) shall have any liability to the other party or any third
parties for any loss of business, loss of profits, loss of data, or
computer malfunction, or any indirect, incidental, special, consequential
or punitive damages, even if such party has been appraised of the
possibility of that loss or damage.
(i) Press Release and Publicity. Neither party shall issue any
news release, public announcement, advertisement or
publicity concerning this Agreement or any matters arising
under this Agreement without the prior written approval of
the other party such approval not to be unreasonably
withheld.
IN WITNESS WHEREOF, the parties have caused this Master Agreement to be signed
by the authorized representatives as of the date first shown above.
JAWS TECHNOLOGIES INC. CALGARY ON-LINE
By: By:
---------------------------------- -----------------------------
Date: Date:
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxxxx
Title: VP Sales & Channel Development Title: President
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SCHEDULE "A"
KEY MANAGEMENT SERVER PRICING
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SERVICE PROVIDED DETAIL OF SERVICE SUBSCRIPTION
RATE
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E-MAIL ENCRYPTION DIAL UP ACCESS USERS INCLUDES:
Residential (Home Market)
Small Home Office
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1,000 subscribers $1.00/month
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1,001 - 5,000 for a total of all $0.75/month
subscribers
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5,001 - 10,000 for a total of all $0.50/month
subscribers
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10,001 + for a total of all $0.35/month
subscribers
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E-MAIL ENCRYPTION CORPORATE ACCOUNTS
By number of subscribers per
corporate account
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15 to 50 users - 1st 20 users $20.00/month
20 + users $0.50/month per
additional user
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51 to 200 users - 1st 65 users $40.00/month
65 + users $0.50/month per
additional user
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200 + users = custom quote To be determined
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SCHEDULE "B"
SOFTWARE & SERVICES PRICING
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PRODUCT NAME SUGGESTED RETAIL PRICE PRICE
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L5 E-MAIL ENCRYPTION SOFTWARE $US14.95 $US12.95
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L5 DATA ENCRYPTION
SOFTWARE - PROFESSIONAL EDITION
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- electronic downloadable file. $US49.95 $US39.95
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- retail boxed product $US49.95 $US34.95
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SERVICES PRICING - AUDITS
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- Snapshot Audit $CDN3,000.00 $CDN2,000.00
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- Full Security variable 10% finders fee
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SCHEDULE "C"
PRODUCT AND SERVICE TRAINING
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TRAINING PROVIDED DETAIL OF TRAINING LENGTH
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L5 E-MAIL ENCRYPTION Server Management N/A
Orientation - user documentation
Key Management - online help
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L5 DATA ENCRYPTION User documentation included N/A
with Software
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SERVICES Sales & Marketing One (1) day
- E-mail Encryption - audit overview
- Audits - how to position and sell audits
- how to position and sell secure E-mail
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