LICENSE AMENDMENT AGREEMENT
This Agreement made this 25th day of September, 2003.
BETWEEN:
COMMGUARD INC., a Nevada corporation having its
registered office at 50 West Liberty, Suite 880, Reno Nevada
89501
(hereinafter referred to as "CommGuard")
OF THE FIRST PART
AND:
INFOTEC BUSINESS SYSTEMS, INC., a Nevada
corporation having its registered office at 50 West
Liberty, Suite 880, Reno Nevada 89501
(hereinafter referred to as "Infotec")
OF THE SECOND PART
AND:
CTEC SECURITY SOLUTIONS INC., a Canada cor
poration having its registered office at 675 West
Hastings Street, Suite 200, Vancouver B.C. V6B 1N2
(hereinafter referred to as "CTEC")
OF THE THIRD PART
WHEREAS the parties hereto have entered into a Licencing Agreement
dated July 8, 2003 (the License Agreement), a copy of which is included
as Appendix I hereto, which among other things provides for Infotec's
appointment as a CommGuard Licensee and a CommGuard Trust Environment
Member and sets out the terms and conditions of such license and
membership.
AND WHEREAS the parties hereto have reached agreement to expand the
territory in which Infotec may solicit and service Customers of the
Products and Services.
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. AMENDMENT TO LICENSE AGREEMENT
1.01 The parties hereto agree, subject to the terms and conditions of
this Agreement, to amend the License Agreement effective September 25,
2003 (the Amendment Effective Date) to incorporate and include therein
the changes and amendments set out in this Agreement.
2. INTERPRETATION
2.01 Terms used in this Agreement shall, unless the context requires
otherwise or the term is otherwise defined herein, have the meanings set
out in Section 1.01 of the Licensing Agreement.
2.02 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.
2.03 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.
2.04 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.
3. AMENDMENT OF DEFINITIONS
3.01 The definition of the term Territory set out in Section 1.01 of
the License Agreement shall be amended to hereafter read:
Territory means the United States of America and all other countries of
the world in which Infotec may conduct business and sell and service the
Products and Services.
3.02 The definition of the term Licensee set out in Section 1.01 of
the License Agreement shall be amended to hereafter read:
Licensee means Infotec and any other Licensee of the Products and
Services throughout the world, and for greater certainty, includes CTEC
and CommGuard.
3.03 The definitions set out in Section 1.01 of the License Agreement
shall include the following:
CommGuard Digital Certificate means digital certificates issued by
Infotec under the CommGuard brand and includes digital certificates
issued by Infotec to Customers under white label or other brands.
3.04 The definition of the term Customer set out in Section 10.01 of
the License Agreement shall be amended to hereafter read:
Customer means the Customer of any Licensee and includes any contact or
selling opportunity of any Licensee that it has identified and contacted
within a period of eighteen (18) months.
4. TRANSFER OF CUSTOMERS
4.01 The parties agree to amend the CTEC agrees to provide Infotec
with its customer list and will assist Infotec in an orderly transfer of
CTEC's Customers to Infotec.
4.01 CTEC agrees to provide Infotec with its customer list and will
assist Infotec in an orderly transfer of Customers to Infotec and such
Customers will, provided they accept the said transfer, thereafter be
considered Customers of Infotec.
4.02 For the purpose of Section 4.01, Customers shall exclude all
individuals or organizations with special relationships with CTEC; those
requiring Canadian ownership in their business relationships; and those
customers that Infotec is not otherwise permitted to do business with,
or chooses not to do business with; and for greater certainty, shall
exclude all contacts, customers or potential customers of CTEC's not
determined to be customers of the Products and Services.
4.04 The provisions of Section 10.3 of the License Agreement shall be
amended by deleting:
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, and replacing it with:
10.03 During the Time Period, Infotec shall not:
5. AMENDED LICENSE FEE
5.01 The provisions of Section 4.01 of the License Agreement shall be
amended to include the amount of $0.25 for each CommGuard Digital
Certificate issued and in force at any time during the Sales Month.
5.02 The parties agree that the License Fee determined for any calendar
month shall not exceed the amount of FIFTEEN (15%) PERCENT of Infotec's
Net Sales and Revenue for any calender month.
5.03 Infotec may request a specific reduction in the License Fee for
specific accounts, vertical markets or specific applications or product
packages in order to competitively price the Products and Services,
provided, that such request is in writing and specifies as a minimum:
the specific accounts, vertical markets or specific applications or
product packages; the specified reduction requested; an analysis of the
competitive case for the specified reduction requested; and the duration
of that such special arrangement shall persist. CTEC agrees to consider
such request reasonably and to reply within five (5) business days from
the date of receipt of such request and may approve, vary or deny such
request at its sole discretion, with or without reasons or other
explanations.
6. GENERAL TERMS AND CONDITIONS
6.01 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.
6.02 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.
6.03 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.
6.04 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.
6.05 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.
6.06 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.
6.07 Enurement This Agreement shall enure to the benefit of and be
binding upon the parties hereto and their respective successors and
permitted assigns.
6.08 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.
6.09 Jurisdiction This Agreement shall be governed by and in construed
accordance with the laws of the Province of British Columbia.
6.10 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.
6.11 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 and 5 shall survive the termination of this
Agreement.
6.12 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