LICENCE AGREEMENT
This Agreement made this 8th day of July, 2003.
BETWEEN:
COMMGUARD INC., a Nevada corporation having its
registered office at 50 West Liberty, Suite 880, Reno Nevada
89501
(hereinafter referred to as the "CommGuard")
OF THE FIRST PART
AND:
INFOTEC BUSINESS SYSTEMS, INC., a Nevada corpora
tion having its registered office at 50 West Liberty,
Suite 880, Reno Nevada 89501
(hereinafter referred to as the "Infotec")
OF THE SECOND PART
AND:
CTEC SECURITY SOLUTIONS INC., a Canada
corporation having its registered office at 675 West
Hastings Street, Suite 200, Vancouver B.C. V6B 1N2
(hereinafter referred to as the "CTEC")
OF THE THIRD PART
WHEREAS CTEC hold the rights in and unto the Intellectual Property and
the CommGuard Brand including the methods and practices for marketing
the Products and Services throughout the world, which it has invested
significant time and financial resources in development and which it
considers to be a valuable asset.
AND WHEREAS CTEC has incorporated CommGuard as a wholly owned
subsidiary, as agent, to represent, manage, administer and license the
CommGuard Brand on CTEC's behalf throughout the world.
AND WHEREAS Infotec wishes to enhance its product and service
offerings with CommGuard PKI technology and provide its customers and
potential customers in the United States with the Products and Services.
AND WHEREAS the parties hereto have undertaken to enter into this
Agreement pursuant to a Memorandum of Understanding dated May 7, 2003
(the Effective Date) to appoint Infotec as a CommGuard Licensee, to
sell, service and support the Products and Services in the Territory on
a non-exclusive basis and a CommGuard Trust Environment Member.
NOW THEREFORE this Agreement witnesses that in consideration of the
premises, and of the mutual covenants and agreements herein contained
and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged the parties hereto have agreed to and do
hereby agree as follows:
1. INTERPRETATION
1.01 Wherever used in this Agreement, unless the context requires
otherwise, the following terms shall have the meanings set out below:
CommGuard Brand means the trade marks, trade associations and customer
perceptions of products and services branded commguard and includes the
Products and Services, all methods and practices for marketing the
Products and Services, and all Practice Policies and Procedures set out
in support of the Products and Services.
CommGuard Standards means the standards for sales, service and support
of the Products and Services and include the standards set out in the
Practice Policies and Procedures.
Confidential Information means all trade secrets and other information
not generally known to the public, and owned by one of the parties, or
by any company affiliated to one of the parties. It includes without
limitation, all inventions, discoveries, processes, ideas, algorithms,
source code, financial information, legal, corporate, marketing,
product, research, technical, personnel, customer, supplier and other
non-public information, in whatever form or media, specifically
identified as confidential or proprietary prior to or at the time of its
disclosure, or that would generally be considered confidential or
proprietary in the industry in which the party concerned does business,
except that the following information is not Confidential Information:
(a) information that is public knowledge at the time of disclosure, (b)
information that becomes public knowledge or otherwise known to the
receiving party after such disclosure, other than by breach of a
confidentiality obligation, (c) information that was known by the
receiving party before disclosure by the disclosing party, or (d)
information that is independently developed by the receiving party
without use of the disclosing party's Confidential Information.
Cumulative Net Sales Revenue means the cumulative amount of Infotec's
Net Sales Revenue computed from the Effective Date of this Agreement or
where this Agreement is for a Renewal Term, the Effective Date of the
initial Licence Agreement granted Infotec.
Customer means any individual, corporation or other person within the
Territory, who contracts with Infotec for Products and Services.
Licence Fee means the amount determined under Section 4.01 of this
Agreement.
Licensee means Infotec and any other Licensee of the Products and
Services throughout the world.
Net Sales Revenue means all revenues, receipts, monies and the fair
market value of all other considerations, directly or indirectly
collected or received, whether by way of cash or credit or any barter,
benefit, advantage, or concession received or receivable by Infotec or
its affiliate companies from marketing, sale, lease, rental or other
commercial distribution of the Products and Services less the following:
(i) trade and quantity discounts approved by CommGuard and
actually given to the purchasers thereof;
(ii) all government taxes customs and excise, sales and value added
taxes and other charges or governmental fees of every nature or
kind (except for taxes on or measured by income); and
(iii)credit allowances or refunds given on account of returned
goods, up to a maximum of 5% of Net Sales Revenue.
Practice Policies and Procedures means the practices, policies and
procedures set out in Schedule II hereto, as established and amended
from time to time by CommGuard at its sole discretion, to govern among
other things, the sales, service and support obligations for CommGuard
branded products and services world wide.
Products and Services means those products and services set out in Schedule
I hereto, as established and amended from time to time by CommGuard in
their sole discretion, approved for sale under the CommGuard Brand .
Products and Services Pricing means the Product and Services pricing
schedules, terms and policies as established and amended from time to
time by CommGuard in its sole discretion and set out within the Practice
Policies and Procedures.
Territory means the United States of America.
1.02 The headings appearing in this Agreement have been inserted for
convenience of reference only and in no way define, limit, or enlarge
the scope or meaning of the provisions of this Agreement.
1.03 All references to any party, whether a party to this Agreement or
not, will be read with such changes in number and gender as the context
or reference requires.
1.04 The terms this Agreement, hereof, herein, hereby, hereto, and
similar terms refer to this Agreement, including the Schedules hereto
and any amendments hereto, and not to any particular Section or other
part of this Agreement. References to particular Sections are to
Sections of this Agreement unless another document is specified.
1.05 All accounting terms not defined in this Agreement will have those
meanings generally ascribed to them in accordance with generally
accepted accounting principles, consistently applied.
1.06 This Agreement shall supersede and replace any and all previous
agreements whether written or oral, expressed or implied between the
parties hereto.
2. OBLIGATIONS OF COMMGUARD
2.01 Subject to the remaining terms and conditions of this Agreement,
CommGuard shall, at its own expense:
(a) Maintain the CommGuard Brand;
(b) Identify Infotec as a provider of Products and Services
within the Territory on its web site and provide a link to
Infotec web-sites;
(c) Notify Infotec thirty (30) days in advance of effective
dates for changes to the Practice Policies and Procedures, the
Products and Services or the Product and Services Pricing.
3. OBLIGATIONS OF INFOTEC
3.01 Subject to the remaining terms and conditions of this Agreement,
Infotec shall, at its own expense:
(a) Offer and market the Products and Services to Customers
only within the Territory;
(b) Support and service the Products and Services sold to
Customers;
(c) Process and fulfill orders for Products and Services in a
timely and accurate manner and provide support and service in
accordance with CommGuard Standards and in a competent,
professional, timely and workman like manner;
(d) Answer all Customer enquiries, requests for information and
service promptly and all disputes or disagreements with
Customers in a competent, professional and timely manner;
(e) Comply with the highest standards for sales, service and
support so as to enhance the CommGuard Brand and undertake
activities related to the sales, service and support of the
Products and Services in compliance with the Practice Policies
and Procedures;
(f) Ensure that the Products and Services provided to Customers
are in compliance with the CommGuard Standards;
(g) Maintain errors and omissions insurance and other insurance
policies adequate for the nature and type of business being
conducted hereunder and provide CommGuard with proof of
insurance coverage immediately upon request;
(h) Ensure that the Products and Services visibly display
CommGuard trademarks and names and markings as prescribed by
CommGuard;
(i) Pay CTEC and CommGuard as applicable, the amounts described
in Section 4 and of this Agreement and any charges incurred by
Infotec persuant to Section 9; and
(j) Comply with applicable rules, regulations and laws
established for the jurisdictions within the Territory that
Infotec operates including but not limited to collecting and
remitting any taxes including sales tax, value added taxes or
other tax required to be paid to any regulatory authority in
association with the sale or licensing of the Products and
Services under this Agreement.
3.02 Infotec shall offer and sell the Products and Services in accordance
with the Product and Services Pricing.
3.03 Infotec shall seek approval from CommGuard for all marketing
materials, web sites, information and contracts and agreements between
itself and its Customers related to Infotec's carrying out its selling,
service and support for the Products and Services. CommGuard shall
approve or disapprove of materials submitted for review in accordance
with this Section 3.03 and Section 12.04 within five (5) days of receipt
of such materials.
3.04 Infotec shall comply, as a minimum, with the Privacy Policies set
out in Schedule III hereto established and amended from time to time by
CommGuard in its sole discretion, in its sales, support and service for
the Products and Services and in all of its dealings with Customers and
in its operations and shall comply with all privacy legislation in force
within the Territory.
3.05 Infotec shall be precluded from selling the Products and Services
where it has insufficient staff, capabilities, infrastructure or other
resources to meet its obligations set out in Section 3.01, paragraphs
(a) to (f).
4. FEES AND PAYMENT TERMS
4.01 Infotec shall pay CTEC, on or before the 15th day of each month (the
Payment Date), as a licencing fee;
(a) until such time as Infotec's Cumulative Net Sales Revenue
exceeds SEVENTY FIVE MILLION ($75,000,000) DOLLARS, TEN (10%)
PERCENT; and
(b) thereafter, SEVEN AND ONE HALF (7.5%) PERCENT,
of Infotec's Net Sales Revenue for the calendar month proceeding the
Payment Date (the Sales Month).
4.02 On the Payment Date, Infotec shall provide CTEC with a summary
accounting for the Net Sales Revenue for the Sales Month, which shall
include the total amount of all Net Sales Revenue and the calculation
used to determine the amount due to CTEC in accordance with Section
4.01.
4.03 While this Agreement remains in effect and for a period of two years
thereafter, Infotec shall keep records of its activities under this
Agreement, sufficient to enable an independent party to assess whether
it has complied with its obligations hereunder. While this Agreement
remains in effect and for a period of two years thereafter, CTEC may,
from time to time, conduct, or have conducted at its own expense, an
independent audit of these records including any related
financial/accounting records. Such audits shall occur, if at all, during
the normal business hours of the audited party, with a minimum of
disruption to the business of the audited party, and only after written
notice has been delivered to the audited party, at least fifteen
business days in advance of the audit. If an audit reveals an
underpayment or overpayment of fees under the Agreement, then the
auditing party shall submit an invoice to the audited party in the
amount of the underpayment or overpayment together with supporting
documentation for its claim, and the owing party shall pay such invoice
within ten (10) days of receipt of same.
4.04 Subject to the laws of the Province of British Columbia, interest at
the rate of TWO (2%) PERCENT shall be charged on any amount payable
under this Agreement that remains unpaid on its due date and for each
month thereafter on such amount or part of such amount until extin
guished in full. Interest charged under this paragraph shall be due and
payable immediately and shall itself attract monthly interest at the
rate of TWO (2%) PERCENT for each month such interest remains
outstanding.
5. TERM
5.01 This Agreement will be in effect for three (3) years starting on
the Effective Date (the "Initial Term"). This Agreement may be renewed
for additional three (3) year terms (each a "Renewal Term") upon payment
by Infotec to CTEC of the then applicable current fees determined by
CommGuard prior to the expiration of the Initial Term or then current
Renewal Term, unless either party gives the other party at least thirty
(30) days notice of termination before the expiration of the then
current Initial Term or Renewal Term. Notwithstanding the foregoing,
CTEC expressly reserves the right to amend the terms of this Agreement
for any Renewal Term by providing notice in the form of a written
amendment or new Agreement at least thirty (30) days prior to expiration
of the then current Initial Term or Renewal Term. This Agreement may
also be renewed for longer terms by mutual agreement of the parties.
6. TERMINATION
6.01 This Agreement may be terminated at any time by the mutual
agreement of the parties hereto.
6.02 This Agreement may be terminated by either CTEC or CommGuard without
written notice to Infotec:
(a) upon the institution by or against Infotec of insolvency,
receivership, or bankruptcy proceedings;
(b) upon any assignment for the benefit of Infotec's creditors,
or upon Infotec's ceasing to do business;
(c) in the event Infotec is unable or fails to pay any of its
debts as they fall due for a period of thirty (30) days;
(d) immediately in the event Infotec compromises the security
of the Products and Services including certificate security or
the security of the CommGuard Trust Environment;
(e) in the event Infotec is unable or unwilling or a period
longer than thirty (30) continuous calendar days to provide the
Products and Services contemplated by this Agreement; or
(f) in the event Infotec is unable or unwilling for a period
longer than five (5) continuous calendar days to service or
support the Products and Services contemplated by this
Agreement; or
(g) in the event of a breach of this Agreement by Infotec,
other than a breach by Infotec that compromises the security of
CommGuard's certification services or other systems, upon thirty
(30) days' advance written notice by CommGuard if the Infotec
fails to cure such breach within the thirty (30) day notice
period.
6.03 This Agreement may be terminated by Infotec if:
(a) there is a breach of this Agreement by either CTEC or
CommGuard, upon thirty (30) days' advance written notice by
Infotec, if CTEC or CommGuard fails to cure such breach within
the thirty (30) day notice period; or
(b) CommGuard amends or proposes to amend the Practice Policies
and Procedures, the Products and Services or Product and
Services Pricing and if Infotec believes in good faith that such
amendment materially deprives it of the benefit of this
Agreement, upon thirty (30) days advance written notice by
Infotec, if CommGuard fails to change or withdraw the amendment
or proposed amendment within the thirty (30) day notice period.
6.04 If this Agreement terminates for any reason, both parties shall work
together in good faith to transition Customers and their end users to
another Licensee and:
(a) Infotec shall return to CommGuard all brochures,
advertising materials and other materials used in the sales,
support and servicing of the Products and Services; and
(b) Infotec will remove all logos, trade names. trade marks or
other references to CTEC or CommGuard or the Intellectual
Property from its web-site, promotional and marketing materials
and cease thereafter to use or display any reverences thereto,
unless expressly approved in writing by CommGuard.
7. REPRESENTATIONS AND WARRANTIES
7.01 CTEC and CommGuard jointly represent and warrant to Infotec that
except as otherwise disclosed herein:
(a) it has the power and capacity to enter into this Agreement
and to carry out its terms to the fullest extent;
(b) it is the owner or licensee in good standing of the
Intellectual Property and the Products and Services free of
disputes or claims whatsoever and there are no actions, suits,
judgments, litigation proceedings or investigations outstanding,
pending or to the knowledge of either party threatened against
the Products and Services or the Intellectual Property, nor does
either party know or have any reasonable grounds or know of any
basis for any such actions, suits, litigation proceedings or
investigations; and
(c) the execution and delivery of this Agreement have been duly
and validly authorized by all necessary corporate action on the
part of each party, and this Agreement constitutes a legal,
valid and binding obligation of each party.
7.02 Infotec represents and warrants to CommGuard (and acknowledges that
CommGuard has relied upon such representations and warranties in
entering into this Agreement) that except as otherwise disclosed herein:
(a) it is duly organized, existing, in good standing and has
the power, authority, and capacity to enter into this Agreement
and to carry out its duties and obligations to the fullest
extent contemplated by this Agreement, all of which have been
duly and validly authorized by all requisite corporate
proceedings on the part of Infotec, and this Agreement
constitutes a legal, valid and binding obligation of Infotec
enforceable against Infotec in accordance with its terms except
as may be limited by laws of general application effecting the
rights of creditors and by general principals of equity;
(b) neither the execution nor delivery of this Agreement nor
the completion of the transactions contemplated hereby violate
any of the terms and provisions of any order, decree, statute,
by-law or regulation agreement, covenant or restriction
applicable to Infotec; and
(c) it is not a bankrupt or insolvent nor has it made any
assignment to its creditors or for the benefit of creditors and
there are no actions, suits, judgments, litigation proceedings
or investigations outstanding, pending or to the knowledge of
Infotec threatened against it, nor does Infotec know or have any
reasonable grounds or know of any basis for any such actions,
suits, litigation proceedings or investigations.
7.03 Infotec acknowledges that CTEC and CommGuard make no warranties,
except as set forth in Section 7.01, and that all Products and Services,
materials, methods, procedures and practices are provided on an as is
basis. CTEC and CommGuard hereby disclaims all warranties of any kind,
express and implied, including but not limited to the implied warranties
of merchantability and fitness for a particular purpose. CTEC and
CommGuard do not warrant that the Products and Services will meet
Infotec or its Customer's requirements or be error free.
8. INDEMNIFICATION CLAUSE
8.01 Each party hereto (the Indemnifying Party) shall defend and
indemnify the other party and its directors, officers, employees and
contractors (collectively, the Indemnified Parties) and hold the
Indemnified Parties harmless from and against any losses, costs,
damages, and fees (including reasonable attorney's fees) incurred by the
Indemnified Parties in connection with any claim or action brought by a
third party arising from:
(a) any breach by the Indemnifying Party of any warranty
or obligation under this Agreement;
(b) the Indemnifying Parties acts and omissions; or
(c) the use of any product or service provided by the
Indemnifying Party, or any other item furnished by the
Indemnifying Party to Customers or their end users.
9. ASSISTANCE
9.01 Subject to Section 9.02, CommGuard will provide or cause to be
provided to Infotec, such assistance as Infotec shall request for:
training, technical assistance, marketing assistance, attendance at
meetings with Customers and prospective Customers, attending trade shows
and other industry functions or other activities related to Infotec's
marketing and support for the Products and Services, at such rate or
rates as may be established by the parties at the time of request.
9.02 Infotec acknowledges that CommGuard has obligations to all its
Licensees, to the maintenance of the CommGuard Brand and to its
development and enhancement and, that CommGuard's time commitment to
Infotec pursuant to Section 9.01 is limited and that conflicts in time
and timing will arise from time to time, and that such conflicts shall
not constitute a breach hereunder or a non-performance of CommGuard's
obligations hereunder.
10. NON-COMPETE AND NON-SOLICITATION
10.01 In this section the following words have the following meaning:
Contracting Licensee means a non-terminated Licensee contracting for
services with a Customer.
Customer means the Customer of any Licensee of CommGuard or CTEC.
Time Period means the period of time commencing on the Effective Date of
this Agreement or any renewal thereof pursuant to Section 5 and ending
on the date that is two full calendar years following the date upon
which this Agreement or any renewal thereof pursuant to Section 5 ter
minates or is terminated.
Subsequent Period means the period of time from the termination of this
Agreement or any renewal thereof pursuant to Section 5 and ending on the
date that is two full calendar years following the date upon which this
Agreement or any renewal thereof pursuant to Section 5 terminates or is
terminated.
10.02 During the Time Period, Infotec shall not:
(a) directly or indirectly carry on, engage in or participate
in, any business that competes with the CommGuard Brand, either
alone or in partnership or jointly or in conjunction with any
other person;
(b) directly or indirectly assist (as principal, beneficiary,
director, shareholder, partner, nominee, executor, trustee,
agent, servant, employee, independent contractor, supplier,
consultant, lender, guarantor, financier or in any other
capacity whatever) any person to carry on, engage in or
participate in a business that competes with the CommGuard
Brand; or
(c) have any direct or indirect interest or concern (as
principal, beneficiary, director, shareholder, partner, nominee,
executor, trustee, agent, servant, employee, consultant,
independent contractor, supplier, creditor or in any other
capacity whatever) in or with any person, if any part of the
activities of such person consists of carrying on, engaging in
or participating in a business that competes with the CommGuard
Brand.
10.3 During the currency of this Agreement and any renewals under Section 5
for territory outside of the Territory and for the Subsequent Period
world wide, Infotec will not:
(a) directly or indirectly solicit any Customer except for the
sole benefit of the Contracting Licensee;
(b) directly or indirectly assist (be it as principal,
beneficiary, servant, director, shareholder, partner, nominee,
executor, trustee, agent, employee, independent contractor,
supplier, consultant, lender, financier or in any other capacity
whatever) any person directly or indirectly to solicit any
Customer except for the sole benefit of the Contracting
Licensee;
(c) have any direct or indirect interest or concern (be it as
principal, beneficiary, director, shareholder, partner, nominee,
executor, trustee, agent, servant, employee, consultant,
independent contractor, supplier, creditor or in any other
capacity whatever) in or with any person if any of the
activities of such person or entity consists of soliciting any
Customer, if such solicitation is directly or indirectly
intended to result in a sale of any product or service to such
Customer and is directly or indirectly competitive or
potentially competitive with any product or service then
produced by the Contracting Licensee; or
(d) on his behalf or on behalf of any person, directly or
indirectly contact customers or clients of the Company to
encourage such customers or clients to cease or restrict doing
business with the Contracting Licensee or in any way interfere
with or attempt to disrupt the Contracting Licensee's customer
and client relationships, contractual or otherwise.
10.04 During the Time Period, Infotec will not directly or indirectly
solicit or induce, or attempt to solicit or induce, or offer employment
to, any employee, independent contractor, or consultant of CTEC or
CommGuard to leave their employ or terminate services their services
thereto, except for the sole benefit of CTEC or CommGuard as the case
may be, and only with their prior written consent.
10.05 For the purposes of determinations under Section 10.02,
Infotec's incorporation of PKI technology into its products and services
shall not be considered to be a product or service or business that
competes with the CommGuard Brand.
11. CONFIDENTIALITY AND USE OF INFORMATION
11.01 Each party will treat the Confidential Information of the other
party as confidential, and with no less care than the party uses to
prevent the disclosure of its own Confidential Information of like
importance, but in no event less than reasonably diligent care. To the
extent permitted by applicable law, the receiving party shall (a) not
disclose the Confidential Information to any third party, (b) not use
the Confidential Information in any fashion except for purposes of
performing this Agreement, (c) exercise reasonable care to prevent
disclosure, and (d) notify the disclosing party of any unauthorized
disclosure or use of the Confidential Information of which the receiving
party is aware. Upon termination of this Agreement for any reason, each
party shall immediately deliver to the other party all copies of the
Confidential Information received from the other party. Each party
acknowledges that breach of this Section 11 may cause irreparable harm
to the disclosing party entitling the disclosing party to seek
injunctive relief, among other remedies.
11.02 Notwithstanding the foregoing, a party may disclose the
Confidential Information of the other party:
(a) to employees, subcontractors and others engaged in
performing the obligations of this Agreement, including those
selling and supporting the Products and Services as required to
conduct their activities, provided such employees,
subcontractors or other parties have executed a confidentiality
and non competition agreement with the disclosing party binding
them to the terms of Sections 10 and 11 hereof; and
(b) to the extent required by the order or requirement of a
court, administrative agency or other governmental body if the
party to disclose the other party's Confidential Information
does the following: (i) gives written notice of the intended
disclosure to the other party at least ten (10) days in advance
of the date of disclosure or if ten (10) days is not feasible
then as much notice as is possible under the circumstances; (ii)
upon request of the other party and at the requesting party's
expense, the party to disclose the Confidential Information
redacts portions of the Confidential Information to be disclosed
to the extent permitted by applicable law; and (iii) at the
request and expense of the party whose Confidential Information
is to be disclosed, submits a request to the court,
administrative agency or governmental body that any portions of
the Confidential Information that are identified by the other
party receive confidential treatment to the fullest extent
permitted under applicable law.
12. INTELLECTUAL PROPERTY
12.01 Infotec acknowledges that CTEC, its vendors, and/or its licensors
retain all Intellectual Property Rights in and to any patents,
copyrights, trade marks, service marks, trade secrets, ideas, concepts,
techniques, inventions, processes, or works of authorship comprising or
embodied in the Products or Services, the Practice Policies and
Procedures, and the marketing materials, web sites, technical and
support materials for the CommGuard Brand (the Intellectual Property).
12.02 Infotec may not reverse engineer, disassemble or decompile the
Products and Services.
12.03 Infotec shall not remove or destroy any trademark, copyright,
patent or any other intellectual property notices on any of the Products
and Services, materials, documentation or components related thereto.
Neither party shall acquire any rights of any kind in the other party's
trademarks, service marks, trade names, or product names.
12.04 Infotec may use the Intellectual Property, in compliance with the
Practice Policy and Procedures, in its activities related to the sale,
service and support of the Products and Services within the Territory,
subject however to CommGuard's right to firstly approve of any placement
or use of the Intellectual Property by Infotec and Infotec's
acknowledgement that such use display or other activities related to the
Intellectual Property shall not provide Infotec with rights of ownership
or use other than as expressly set out herein.
13. DISPUTE RESOLUTION
13.01 Except in respect of a claim for breach of an intellectual
property right or a breach arising out of a duty of confidentiality, any
and all disputes or disagreements connected to this Agreement shall be
resolved firstly through negotiation between the parties and if, after a
period of thirty (30) days, no resolution has been reached, thereafter
by mediation with a third party mutually agreed to by the parties. Were
after a period of mediation of sixty (60) days, a resolution to the
dispute has not been concluded, then the parties shall submit the
dispute or disagreement to arbitration under the rules of the Province
of British Columbia as may be established from time to time related to
arbitration and dispute resolution.
14. GENERAL TERMS AND CONDITIONS
14.01 Assignment Infotec acknowledges and agrees that it may not
assign, mortgage, encumber, sell or otherwise transfer, dispose or
hypothecate its interest or interests hereunder to others (the
Assignees) without the prior written consent of CTEC.
14.02 Currency For the purposes of this Agreement, all amounts
represented herein are expressed in the functional currency of the
United States of America and all references to dollar or currency
amounts shall be read as references to the currency of the United States
of America.
14.03 Headings The headings are for convenience only, and are not
intended to be full or precise descriptions of the text to which they
refer and shall not be considered part of this Agreement.
14.04 Notice Notice to either of the parties may be made and shall be
deemed delivered and received when sent by first class mail or hand
delivered to each party at the address set forth above or to such other
address or by some other means, as any party may provide Notice to all
of the other parties hereto.
14.05 Nature of Relationship The parties to this Agreement are
independent contractors. This Agreement shall not create or be
construed as creating a co-ownership, partnership, joint venture, or,
except as expressly set out herein, agency relationship between
CommGuard and Infotec. Except as expressly set out in this Agreement,
neither party shall hold itself out as having any authority to incur,
assume, or create, orally or in writing any liability, obligation or
undertaking of any kind in the name of, or on behalf of, or in any way
binding upon, the other. Each party hereto shall bear its own costs in
performing under this Agreement.
14.06 Force Majeure Except for payment and indemnity obligations
hereunder, if either of the parties becomes unable to carry out the
whole or any part of its obligations under this Agreement for any
reasons beyond its control including acts of God, acts of governmental
authorities, strikes, war, riots or any other cause of such nature
(Force Majeure Event), then the performance of the obligations of the
affected party (the Affected Party) shall be excused during the
continuance of any inability so caused, but such inability shall, as far
as possible, be remedied with all reasonable dispatch. Either party
shall give immediate notice to the other party upon becoming aware of an
Event of Force Majeure. If an Event of Force Majeure continues for a
period exceeding thirty (30) days or such other period as is mutually
agreed to by the parties, the other party may terminate this Agreement
immediately by giving the Affected Party written notice of its decision
to do so.
14.07 Enurement This Agreement shall enure to the benefit of and be
binding upon the parties hereto and their respective successors and
permitted assigns.
14.08 Entire Agreement This Agreement constitutes the entire agreement
between the parties hereto relating to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties
and there are no general or specific warranties, representations or
other agreements by or among the parties in connection with the entering
into of this Agreement or the subject matter thereof except as
specifically set forth herein.
14.09 Export Law Compliance Infotec agrees that it will not import,
export, or re-export, directly or indirectly, any commodity, including
any Certificate, or software to any country in violation of the laws and
regulations of any applicable jurisdiction. This restriction expressly
includes, but is not limited to, the export regulations of the United
States of America. Specifically, Infotec shall not download or
otherwise export or re-export any commodity or software:
(a) into any of the following countries or to nationals or
residents of any of the following countries: Cuba, Iran, Iraq, Libya,
Sudan, North Korea, or Syria, or any other country where use or
exporting of such software is prohibited under United States export laws
or regulations (Restricted Countries);
(b) to anyone on the United States Treasury Department's list of
Specially Designated Nationals or the United States Commerce
Department's Table of Denial Orders.
14.10 Jurisdiction This Agreement shall be governed by and in
construed accordance with the laws of the Province of British Columbia.
14.11 Severability If any provisions of this Agreement are held
unenforceable or invalid by a Court of competent jurisdiction, the
parties hereto acknowledge and agree that the enforceability or validity
of the remaining provisions shall not be affected thereby.
14.12 Survival Notwithstanding any enquiry or investigation by the
Purchaser, the representation and warranties of the Vendor contained in
this Agreement shall survive its closing of the transactions
contemplated by this Agreement and shall continue in full force for the
benefit of the Purchaser thereafter.
The provisions of Sections 4, 9 (with respect to fees and charges incurred
as of the effective date of termination) 7, 8, 10, 11 and 12 shall
survive the termination of this Agreement.
14.13 Time of the Essence Time shall be of the essence in this
Agreement.
IN WITNESS WHEREOF THE PARTIES have hereunto set their hands and Corporate
Seals, duly attested to be the hands of their properly authorized
officers in their behalf on the day and year first above written.
Signed for on behalf of
COMMGUARD INC.
By its authorized signatory
Per:/s/ Bram Solloway
Bram Solloway, President
Signed for on behalf of
INFOTEC BUSINESS SYSTEMS, INC.
By its authorized signatory
Per: /s/ Robert Danvers
Robert Danvers, President
Signed for on behalf of
CTEC SECURITY SOLUTIONS INC.
By its authorized signatory
Per: /s/ Bram Solloway
Bram Solloway, President