International Reseller Agreement - ImageWare Software Inc. and Intelligence and Strategic Processes Pty. Ltd.
IMAGEWARE SOFTWARE, INC.
INTERNATIONAL RESELLER AGREEMENT
1. GENERAL TERMS
1.1 TERM OF AGREEMENT. This Agreement shall become effective on
1st January 1999, and shall remain in force for one (1) year unless
terminated or extended as provided below. Neither party is
obligated to renew this agreement.
1.2 APPOINTMENT. ImageWare Software, Inc. ("IWS") agrees to appoint
Intelligence and Strategic Processes Pty. Ltd. ("ISP") as our
exclusive RESELLER for ImageWare Software, Inc. software products
and related services (the "Software"), and ISP accept this
appointment. IWS authorizes ISP to License the Software only to end
user customers ("Customers") within Australia and New Zealand.
Other markets will be nominated on a case by case basis. ISP agrees
to transfer the Software to customers only through the use of
C.R.I.M.E.S.-Trademark- (Crime Reduction, Image Management and
Enhancement System) Software License Agreement or related
agreements.
1.3 RESELLER Representation and Covenant.
1.3.1 RESELLER represents and covenants that the Product(s)
purchased or licensed by RESELLER under this Agreement will
be resold or licensed to RESELLER's Customers only and
exclusively within a "Value-Added-Context" created by
RESELLER. A Value-Added-Context is created when one or
more of the following products and services is furnished
and/or delivered by RESELLER to the Customer along with,
and at the same time, the Product(s):
a) Pre-Sale prospect needs analysis and system
definition/configuration;
b) Turnkey computer systems;
c) RESELLER's proprietary software and hardware products
that enable the use of the Product(s);
d) RESELLER's integration of the Products(s) into the
Customer's existing computing environment.
1.3.2. RESELLER acknowledges and agrees that the prices for the
Product(s) in this Agreement are offered to the RESELLER in
consideration of the foregoing representation and covenant
being true during the term of this Agreement. Any resale of
Product(s) by RESELLER other than represented and
covenanted shall constitute a material breach of this
Agreement.
2. RESELLER RESPONSIBILITIES
It is the Reseller's responsibility under this Agreement to:
a) Comply with this Agreement;
b) Deliver to the end user Customer all software
purchased by Customer, including all media,
documentation, and related materials;
c) Make certain that every Customer understands and
accepts the Software License Agreement provided with
the Software;
d) Make certain that IWS receives a copy of the signed
contract.
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e) Work with the Customers, face to face, in a competent,
professional, and effective manner;
f) Utilize best efforts to ensure that Customers are
satisfied and able to use the Software;
g) Execute Confidentiality Agreement attached hereto as
Appendix B, and incorporated herein by this reference.
3. RELATIONSHIP
RESELLER is an independent contractor and not an IWS agent, partner, or
representative. RESELLER has no power to bind IWS, or to change or vary any
of IWS terms, conditions, warranties, or promises.
4. PRODUCTS AVAILABLE UNDER THIS AGREEMENT
IWS grants to RESELLER for the term of this agreement the right to
license product(s) identified generally as C.R.I.M.E.S. and in more
detail in the appendices. IWS may modify any product or may discontinue
the supply of any product at any time only if it is also discontinued for
all customers and distributors. IWS will use its best effort to notify
RESELLER sixty (120) days prior to such discontinuance by registered mail.
5. OWNERSHIP AND PROPRIETARY RIGHTS
RESELLER acknowledges that all right, title, and interest in the Software
is the property of IWS and its Licensors. RESELLER ACKNOWLEDGES THAT THE
SOFTWARE IS COPYRIGHTED AND THAT YOU MAY NOT REPRODUCE ANY COPIES OF THE
SOFTWARE. RESELLER is expressly prohibited from reverse engineering, or
decompiling of the Software. RESELLER may not sublicense, assign, or
transfer any of the rights relating to the use of the Software, except as
expressly permitted in writing by ImageWare Software. RESELLER
indemnifies and hold harmless IWS from and against any loss, liability,
damage, or expense (including attorney's fees) incurred by RESELLER, as a
result of any IWS breach of any of their obligations under this section,
or under applicable copyright or intellectual property law.
6. SOFTWARE RIGHTS
For Product(s) which are themselves software, or which incorporate
software in any form, and for which IWS provides software license terms
as part of the Product documentation, RESELLER must:
a) Operate and demonstrate those Product(s) only in
accordance with the software license terms;
b) Convey to RESELLER's Customers the applicable software
license terms; and
c) When applicable, obtain the Customer's signature on
software license Agreements and return the signed
license to:
ImageWare Software, Inc.
10883 Thornmint Road
San Diego, CA 92127
7. TRADEMARKS AND SERVICE MARKS
"Marks" shall mean all trademarks, service marks, tradenames, logos of other
words identifying or used in connection with the Software. RESELLER
acknowledges that all Marks are and will remain our
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exclusive property. RESELLER agrees not to use the Marks in any advertising
or in any other way, except you may use the Marks to:
a) State that RESELLER is authorized to sell the Software and/or to
provide services for the Software, as set forth in this Agreement;
and
b) Refer to the Software items by their associated Marks, provided
that such references are truthful and not misleading, and that
RESELLER clearly identifies IWS as the owners of the Marks.
8. WARRANTY AND LIMITATION ON WARRANTY
8.1 WARRANTY/LIMITATION. IWS warrant all Software licensed by RESELLER
under this Agreement in accordance with our standard written
warranties, in effect at the time of sale.
SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, RESPECTING THE SOFTWARE AND ANY SERVICES
PROVIDED BY IWS, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
IWS SHALL HAVE NO OBLIGATION TO ANY END USER UNDER ANY WARRANTY
GIVEN BY RESELLER, ITS AGENT OR ITS EMPLOYEES.
IN NO EVENT SHALL IWS BE LIABLE FOR INDIRECT, CONSEQUENTIAL OR
INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND
THE LIKE) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE
SOFTWARE, EVEN IF IWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
IN ANY EVENT, IWS LIABILITY (a) UNDER ANY PROVISION OF THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT, OR (b)
FOR ANY DAMAGES CAUSED BY SOFTWARE OR DEFECT OR FAILURE IN
SOFTWARE, OR (c) AIRING FROM A COURT OF ARBITRATION PANEL OF PROPER
JURISDICTION HOLDING ANY OF THE ABOVE WARRANTIES OR DISCLAIMERS OF
WARRANTIES INVALID, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY
RESELLER TO IWS PURSUANT TO THIS AGREEMENT AND ARISING OUT OF THE
TRANSACTIONS(S) GIVING RISE TO SUCH LIABILITY.
8.2 INDEMNITY. RESELLER agrees to indemnify IWS and to hold it harmless
from and against any loss, damage, claim or demand whatsoever
arising out of RESELLER activities, including but not limited to,
any express warranties or representations made by RESELLER, its
agents or employees, which are not part of the written warranty and
approved specification for the Software.
8.3 REMEDY FOR DEFECTIVE SOFTWARE. RESELLER remedy from IWS under this
Agreement for any breach of warranty or other claim of defect in
the software shall be limited to, at IWS selection, either a credit
to the RESELLER account of the corresponding original purchase
price of the software, or replacement of the Software with charge
for any applicable exchange fee.
8.4 NO OTHER WARRANTY. RESELLER agrees that with respect to the
Software, RESELLER will give and make no other or different
warranty or representations as to quality, merchantability,
fitness, or any other feature of the Software other than has been
made in writing by IWS in our written warranty and software
documentation.
9. PRODUCT PROMOTION AND ADVERTISING
RESELLER may use the trade names of IWS Product(s) in advertising that
promotes IWS Product(s), provided that RESELLER agrees to comply and
require its Customers to comply with
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such advertising guidelines that IWS may issue from time to time and
correct at RESELLER's own expense such materials that IWS determines to
be objectionable or misleading. RESELLER shall provide to IWS for prior
review and approval all advertising and promotional materials using such
trade names.
10. CONFIDENTIALITY
RESELLER agrees not to disclose any confidential information that you
receive from IWS, whether oral or written, or in other tangible form and
that is identified by IWS as confidential or proprietary, to any
employees who do not have a specific need to use such information, or to
any other party, without IWS's prior written consent. All employees or
other persons who receive IWS confidential information must be bound by
a written agreement not to disclose such information to any other
parties without our prior written consent.
11. COMPETITION
During the term of this agreement, RESELLER shall not distribute, sell
or license products or technology of third parties that is similar to or
competitive with the business of IWS unless authorized by IWS in
writing.
12. RENEWAL/TERMINATION OF THIS AGREEMENT
12.1 This Agreement renews:
a) if all terms and conditions are satisfactorily met by both
parties in any current year, this agreement renews for a period
of one additional year upon written consent by both parties.
12.2 This Agreement terminates:
a) ten (10) days after IWS notifies RESELLER of any material
breach of any provisions of this Agreements; unless such breach
is cured by you within ten (10) days of such notice; or
b) automatically, if RESELLER is the subject of a proceeding in
bankruptcy, placed in receivership, or enter into an
arrangement for the benefit of RESELLER'S creditors.
RESELLER may not assign this Agreement without written approval from
IWS. Such consent may not be reasonably withheld. IWS may assign this
Agreement and its interest in the Software to any party. This Agreement
shall inure to the benefit of any successor of us.
Neither party shall be liable to the other for any damages, losses or
expenses related to the termination of this Agreement. RESELLER
obligations to pay for Software delivered and to protect IWS
confidential information continues after termination for a period of 24
months.
13. PRODUCT PRICING
Product(s) purchased pursuant to this Agreement, shall as of the
effective date of the Agreement, be priced in accordance with the price
schedules in the Appendices. Product pricing is subject to revision in
accordance with the provisions of Section 13 (Price Revisions) and the
above identified Appendices of this Agreement. Pricing for specific
customer system configurations will be on a customized basis.
14. PRICE REVISIONS
14.1 IWS reserves the right to increase the Product price of any
Product upon ninety (90) days written notice to RESELLER by
registered mail. Product(s) ordered by RESELLER prior to or during
the ninety (90) day notification period will be invoiced in
accordance with the price
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schedule in effect at the time such written notice is given if
such Product(s) are to be shipped within ninety (90) days of the
date of such notice or at IWS's convenience.
14.2. Product ordered prior to or during the ninety (90) day
notification period with a specified delivery date of more than
thirty (30) days after the date of written notice or price
increase, shall be invoiced at the increased price for the product.
14.3. In the event of a price decrease, all Product(s) shipped to the
RESELLER, on or after the date of IWS's written notice to
RESELLER, will be invoiced at the decreased product price.
15. ORDERS
15.1. RESELLER shall issue purchase orders or changes to purchase orders
by facsimile transmission, telephone, or by letter followed by
written purchase orders. All forms of such orders shall state that
the order is submitted pursuant to this Agreement and indicate
product quantity, order number, price, ship to location and product
description. Every order will be governed exclusively by the terms
an condition of this Agreement and any conflicting term or
condition set forth in any order form or IWS's acknowledge form
shall have no force or effect except where mutually agreed upon in
writing.
15.2. No deliveries of Product(s) by IWS subsequent to the expiration or
termination of this Agreement shall extend or renew this Agreement
but RESELLERS's obligations to pay for Product(s) shall be
governed by the Agreement terms and conditions.
16. PAYMENT OF INVOICES AND TAXES
16.1. Subject to credit approval by IWS, any purchase order will be paid
in advance of shipment by wire transfer. In case of partial
shipments, pro-rata payments shall become due in accordance with
terms on each such shipment, or RESELLER may submit an Irrevocable
Letter of Credit to IWS for its approval. RESELLER must submit a
completed credit application, which IWS must approve for any other
terms to apply.
16.2. RESELLER must pay any applicable sales or use taxes, customs or
duties, imposed under the authority of any federal, state or local
taxing jurisdiction, so long as they are billed as a separate item
on each invoice, unless RESELLER furnishes IWS with appropriate
exemption certificates in advance of shipment.
16.3. RESELLER shall be liable for any default in payments under this
Section and shall make payment in full to IWS within ten (10) days
of receiving notice of such default, subject to the provisions of
Section 11 (Termination).
16.4. Regardless of any prior approval of credit, IWS may modify the
foregoing terms of payment by, including but not limited to,
placing the account on a letter-of-credit basis, requiring full or
partial payment in advance and suspending deliveries of Product(s)
until RESELLER provides assurance of performance reasonably
satisfactory to both parties and on mutually agreeable terms.
16.5. Shipment is FOB, San Diego California
17. RISK OF LOSS
17.1. All risk of loss for copies of the Software shall pass from us
to you at the time and place of delivery to you or the carrier for
delivery to you, whichever occurs first.
18. ARBITRATION
18.1. Any disputes between us arising under this Agreement shall be
resolved by submission to binding arbitration in accordance with
the rules of the American Arbitration Associations.
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The arbitration shall be held in San Diego, CA. The prevailing
party in the arbitration shall bear the expenses in the
arbitration preceeding, including reasonable attorney's fees,
unless the arbitration determines otherwise. Judgment upon the
award may not be entered in any court of competent jurisdiction.
19. MISCELLANEOUS
19.1. Entire Agreement. This written Agreement and any agreement
incorporated herein constitutes the entire agreement between us
with respect to the subject matters and supersedes all previous
agreements between the parties, as well as all proposals, oral and
written, and all negotiations, conversations or discussions between
the parties related to these subjects. RESELLER acknowledges that
it has not been induced to enter into this Agreement by any
representations of statements, oral or written, except those set
forth in this Agreement.
19.2. Modifications. This Agreement may not be modified, except by
written amendments signed by both parties.
19.3. Conflicts. In the event that any of the terms of this agreement
are in conflict with an applicable rule of law or statutory
provision, such terms shall be deemed stricken from this
Agreement, but shall not invalidate any other terms of this
Agreement, and the Agreement shall continue in full force and
effect.
19.4. Terms Control. The terms of this Agreement shall control any
conflicting or inconsistent standard terms or conditions on any
purchase order or invoice of either party, notwithstanding any
provision to the contrary in any such purchase order or invoice.
19.5. Notices. Notice under this Agreement shall be deemed sufficient
and effective upon receipt if given by: (a) certified mail,
postage prepaid, return receipt requested, (b) FedEx, or (c)
telefax. Notices will be addressed to the addresses set forth in
this Agreement, or such other addresses as the respective parties
may designated by like notice from time to time.
19.6. Choice of Law. This Agreement is made and executed by us in San
Diego, CA. RESELLER consents to the exercise of jurisdiction by
the court of California, in connection with any dispute arising
out of this contract which is not capable of being submitted to
arbitration. The Agreement shall be governed by and construed in
accordance with the laws of California. Any dispute submitted to
arbitration in accordance with the Agreement shall be determined
in accordance with the laws of California.
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RESELLER IMAGEWARE SOFTWARE, INC.
By: Intelligence and Strategic Processes Pty. Ltd. By:
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Name: Peter Harrington Name: /s/ Paul Devermann
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Title: CEO Title: Vice President
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Signature: /s/ Peter Harrington Signature: /s/ Paul Devermann
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Date: 1st January 1999 Date: 1/1/99
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DESCRIPTION
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SOFTWARE (1 Off)
CCS Investigative WEB Software
CCS Investigative Display Software (Full)
CCS Capture Station software
Suspect ID
Crime Lab
Vehicle ID
Video Lineup Option (OZ Only)
Face ID software, server
1-10,000 records
10,001-100,000 records
100,001-250,000 records
250,001-500,000 records
500,001-1M records
>1,000,000 $.07 per additional record up to 500,000 less 10%
$.05 per additional record up to 1,000,000 less 10%
$.04 per additional record up to 2,500,000 less 10%
$.03 per additional record up to 5,000,000 less 10%
Face ID software, client
CUSTOM SOFTWARE
Livescan Interface - File transfer (separate machines) T&M
Livescan Interface - File transfer (Single Machine dual application) T&M
Livescan Interface - Full Integrated T&M
Criminal History File Interface (COPS, LEAP, PROMIS...) T&M
National Filter Pass Through (NIST Import) T&M
Australian Conversion (field changes) T&M
Data Import from Disparit Mug Vendor T&M
> T&M
Print Formats
On-site Project Management
Remote Project Management
Installation Services - Site Survey ISP
Installation Services - Capture Station Install ISP
Installation Services - Investigative Station Install ISP
Installation Services - Custom Hardware Integration (one time fee) ISP
IWS to Train ISP - Engineer
IWS to Train ISP - Installation
IWS to Train ISP - End User
SOFTWARE (15 Plus)
CCS Investigative WEB Software
CCS Investigative Display Software (Full)
CCS Capture Station software
Suspect ID
Crime Lab
Vehicle ID
Video Lineup Option (OZ Only)
Face ID software, client
SOFTWARE (50 Plus)
CCS Investigative WEB Software
CCS Investigative Display Software (Full)
CCS Capture Station software
Suspect ID
Crime Lab
Vehicle ID
Video Lineup Option (OZ Only)
Face ID software, client
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