International Distribution Agreement - ZixIt Corp. and 911 Computer Co. Ltd.
INTERNATIONAL DISTRIBUTION AGREEMENT
BETWEEN
ZIXIT CORPORATION
AND
911 COMPUTER CO., LTD.
1 DEFINITIONS.
1.1 "Distributor" shall mean 911 Computer Co., Ltd., which is
incorporated under the laws of The Republic of South Korea.
1.2 "Effective Date" shall mean the date set forth on the signature
page to this Agreement.
1.3 "Eligible Customer" shall mean a business enterprise headquartered
in The Republic of South Korea or that conducts business in The Republic of
South Korea and that subscribes to use the ZixIt Software/Service for the
benefit of its employees and other agents that reside in the Territory. An
"Eligible Customer" specifically includes a person who has obtained the
ZixMail(TM) software by downloading it from a Web site hosted by Distributor or
from a compact disk obtained from Distributor.
1.4 "Protected Information" shall mean any information pertaining to
ZixIt or its affiliated, or associated companies not generally known to the
public, including but not limited to, any information, data, or other material
of ZixIt, regardless of form, whether oral or written, relating to, referring
to, or evidencing any technology, processes, designs, patent applications,
computer programs, supplier or customer lists, or any other financial or
business information of ZixIt.
1.5 "Term" shall have the meaning given in Subsection 5.1.
1.6 "Territory" shall mean The Republic of South Korea.
1.7 "ZixIt" shall mean ZixIt Corporation, a Texas corporation.
1.8 "ZixIt Software/Service" shall mean the ZixIt ZixMail(TM) secure
messaging software and related services provided by ZixIt's worldwide signature
server and other mutually agreed-upon ZixIt products and services. Other ZixIt
products and services added to this
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Agreement by the mutual agreement of the parties will be provided by ZixIt to
Distributor at the prices set forth in ZixIt's Price Schedule, which will become
Exhibit A to this Agreement. ZixIt may change any price on the Price Schedule by
giving at least 30 days' notice prior to the effectiveness of the new price.
2 APPOINTMENT; OBLIGATIONS OF DISTRIBUTOR.
2.1 Appointment. ZixIt appoints Distributor the exclusive distributor
of the ZixIt Software/Service in the Territory, subject to the pre-existing
distribution arrangements to distribute ZixIt's products as described in Exhibit
B. These pre-existing arrangements permit the other distributors to sell, market
and engage in other promotional activities (as defined below) for the ZixIt
Software/Service throughout the world. ZixIt will notify Distributor if ZixIt is
working with these other distributors in relation to a prospect located in the
Territory. ZixIt and Distributor will negotiate the compensation payable to
Distributor, if any, arising from these situations. As the exclusive
distributor, Distributor shall have the right to locate Eligible Customers in
the Territory to use the ZixIt Software/Service and to provide support relating
to the ZixIt Software/Service in the Territory. Without the prior written
approval of ZixIt in each instance, Distributor's sales efforts and contacts and
support services shall be limited to the Territory. Distributor shall not
initiate or continue any sales efforts, contacts, or support efforts with
respect to the ZixIt Software/Service outside the Territory without the prior
written approval of ZixIt in each instance. Distributor agrees to use its best
efforts to locate Eligible Customers in the Territory to use the ZixIt
Software/Service. Distributor may establish relationships with dealers,
distributors, integrators, value-added resellers and other third parties
(collectively, "Third-Party Representatives") for the promotion, sale and/or
distribution of the ZixIt Software/Service on behalf of Distributor within the
Territory, provided: (i) Distributor registers the Third-Party Representative
with ZixIt in writing and in accordance with ZixIt's then-current registration
procedures, no less than 30 days in advance of establishing such a relationship;
(ii) Distributor is solely responsible for any compensation owed to Third-Party
Representatives; (iii) Distributor is solely responsible for and shall insure
the Third-Party Representative's compliance with the terms of this Agreement;
and (iv) Distributor is solely liable for, and shall indemnify ZixIt from any
liability associated with, the actions of its Third-Party Representatives
(including any breach of this Agreement). ZixIt shall not directly or indirectly
market the ZixIt Software/Service to prospects located in the Territory, except
that ZixIt and its other distributors shall be permitted to market, promote,
license, sell and/or distribute (collectively, "promotional activities")
licenses to use the ZixIt Software/Service to any prospect for the prospect's
use anywhere in the world so long as ZixIt's promotional activities are directed
toward the prospect's operations outside of the Territory.
2.2 Contracts with Eligible Customers. Distributor will contract
directly with the Eligible Customers to provide the ZixIt Software/Service.
Distributor will include for every sale in every license and services agreement
with its customers the terms and conditions that are specified in Exhibit C
attached hereto. Additionally, Distributor will provide a customer information
sheet in the form of Exhibit D attached hereto. Distributor may suggest changes
to the English version of the license and services agreement attached as Exhibit
C for the purposes of creating a suitable version at Distributor's cost for use
in the Territory. Distributor and ZixIt will then jointly develop
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a Korean version of the form of license and services agreement to be used by
Distributor. Any further changes to the form of license and services agreement
are to be approved by ZixIt.
2.3 Provision of ZixIt Software/Service. In approximately three months
from the Effective Date, ZixIt will, at its cost, deliver a Korean language
version for ZixMail (Outlook plug-in) and for ZixMail.net. ZixIt will provide
the ZixIt Software/Service to Distributor for the benefit of the Eligible
Customers and their users. The terms and conditions attached hereto as Exhibit E
shall apply to the provision of the ZixIt Software/Service by ZixIt to
Distributor. ZixIt may change the terms and conditions by providing Distributor
a revised Exhibit E at least five days prior to the effective date of the new
terms and conditions. The provision of the ZixIt Software/Service subsequent to
such effective date shall be governed by the revised terms and conditions.
2.4 Billing; Collection of Accounts Receivable. Distributor shall be
responsible for billing to, and collecting from, its Eligible Customers for the
use of the ZixMail Software/Service. Distributor shall be obligated to pay ZixIt
the amounts owed pursuant to Subsection 3.1, regardless of whether or not
Distributor's customers actually pay Distributor.
2.5 Promotional Materials. All materials referencing the ZixIt
Software/Service distributed by Distributor shall include ZixIt's brand name and
product logos in a manner as prominent as Distributor's brand name and logos and
will include such proprietary, trademark, service mark, and patent protection
notices as ZixIt may require. All of Distributor's promotional materials,
including any English materials Distributor desires to translate at
Distributor's cost, are to be submitted to ZixIt for approval prior to use.
Distributor shall never take any action that is inconsistent with ZixIt's
proprietary rights in ZixIt's brand name and product logos. Distributor agrees
to allow ZixIt to use Distributor's logos and trademarks in ZixIt promotional
activities with respect to the ZixIt Software/Service. Distributor must use all
trade names or marks used by ZixIt to identify the ZixIt Software/Service, in
accordance with ZixIt's most current requirements, whenever identifying the
ZixIt Software/Service, however, all such marks and names shall remain the sole
and exclusive property of ZixIt. ZixIt shall have the right to identify
Distributor as a distributor of the ZixIt Software/Service in its advertising
and promotional materials.
2.6 Governmental Approvals. Distributor shall be solely responsible for
securing, and paying for, any governmental approvals required in connection with
the licensing and use of the ZixIt Software/Service in the Territory, including
import and use licenses. ZixIt shall provide reasonable technical support to
Distributor in securing these governmental approvals.
3 FEES.
3.1 Minimum Guaranteed Services Fees Payable to ZixIt. Distributor
agrees to pay to ZixIt the services fees stated in this Subsection 3.1.
Distributor shall pay to ZixIt a guaranteed minimum services fee of U.S. $2.0
Million (the "Minimum Guaranteed Services Fee"). This Minimum Guaranteed
Services Fee entitles Distributor to contract for up to 125,000 email addresses
(at U.S$16 per email address per year) during the Term. After the 125,000 email
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addresses, Distributor agrees to pay Zixit U.S $20 per email address per year,
including renewals, payable on a quarterly basis.
3.2 Furthermore, if applicable, Distributor will pay the amounts stated
in Exhibit F or in clause (b) of the third bullet dot below. The services fees
will be paid as follows:
o The first U.S. $214,285 guaranteed payment is due and payable
as follows: U.S $100,00 due no later than Tuesday, October 30,
2001. The balance of U.S $114,285 is due no later than Friday,
November 9, 2001.
o The second minimum guaranteed payment of U.S $500,005 is due
no later than Friday, January 25, 2002.
o Six quarterly guaranteed payments equal to the greater of (a)
U.S. $214,285 or (b) the product obtained by multiplying U.S.
$16 per email address per year by the number of email
addresses contracted by (including renewals) Distributor in
that quarter. The first such quarterly payment will be due on
the third month anniversary of the Effective Date and the
remaining payments will be due in accordance with the Payment
Schedule as set forth in Exhibit F attached hereto.
Distributor will pay a minimum of U.S. $1,285,710 pursuant to
this bullet dot.
3.3 Taxes; Duties; Customs Fees. Distributor shall be responsible for
payment of any fees, sales, use, gross receipts, value added, property or other
taxes, duties, or customs fees that are levied on the sale, use, import, or
license of the ZixIt Software/Service to Eligible Customers and its users,
however designated, levied, or based by any authority (except any tax based on
ZixIt's net income). Distributor shall reimburse ZixIt for such taxes, duties,
or customs fees whenever ZixIt is required by applicable law to pay them.
3.4 Payment Information.
All payments to ZixIt hereunder shall be sent via wire transfer as
follows:
Bank of America, N.A.
Dallas, Texas 75205
Federal Wire Transfer:
Routing No. 111000025
For credit to: ZixMail.com, Inc.
Account No. 4779594348
ZixIt may change its payment instructions from time-to-time by notice given as
provided herein. All monies owed under this Agreement are stated, and shall be
paid, in U.S. dollars.
3.5 Audit Rights. ZixIt shall have the right, upon at least five
business days prior written notice, to visit Distributor's facilities, during
normal business hours, and at its own expense,
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for the purpose of inspecting, reviewing, photocopying, and determining the
adequacy of Distributor's procedures for maintaining the confidentiality of
ZixIt's confidential information and to otherwise audit, monitor and ensure
compliance with the terms of this Agreement. All such audits shall be reasonable
in scope and duration. ZixIt shall maintain the confidentiality of any
information disclosed during an audit that is identified as confidential by
Distributor. If ZixIt's inspection reveals an underpayment of fees payable to
ZixIt under this Section 3 of more than five percent, then Distributor shall pay
for the costs and expenses of the audit.
4 SERVICE; MAINTENANCE. ZixIt will provide English language on-line help pages,
accessible through www.zixit.com. Also, ZixIt will provide English language
technical support via email at support@zixit.com. Distributor will be
responsible for providing all other necessary technical support to its
customers, including any assistance they may require in installing ZixMail.
ZixIt will provide to Distributor modifications and enhancements to the ZixMail
software at such time as ZixIt makes them generally available.
5 TERM AND TERMINATION.
5.1 Term. The Term of this Agreement shall extend for two years from
the Effective Date, unless terminated earlier as permitted in this Section 5
below. The Term may be renewed as mutually agreed to by the parties.
5.2 Termination By ZixIt. This Agreement may be terminated by ZixIt by
written notice to Distributor upon the happening of any of the following: (a) a
failure by Distributor to pay to ZixIt any sum due and owing within ten days
after the date payment is due; (b) Distributor licenses or attempts to license
the ZixIt Software/Service outside the Territory without ZixIt's prior written
approval; (c) Distributor violates any international treaties, trade agreements,
trade policies, export/import regulations or laws or governmental decrees or
requirements of the United States or Distributor is convicted of a criminal
offense in any court of competent jurisdiction; (d) insolvency or the
adjudication of bankruptcy or the petition for or consent to or becoming subject
to any relief under any bankruptcy, reorganization or moratorium statutes or
similar debtor relief laws by or of Distributor; (e) a breach by Distributor of
Section 7 of this Agreement; and (f) any material breach by Distributor of any
other provision of this Agreement that is not cured within 30 days after written
notice by ZixIt to Distributor specifying the alleged breach in reasonable
detail. Upon termination of this Agreement, Distributor shall cease endorsing,
promoting, marketing or otherwise distributing the ZixIt Software/Service and
shall immediately provide ZixIt with all originals and copies of the ZixIt
Software/Service, promotional materials, marketing literature, written
information, reports and ZixIt's confidential information. Distributor is not
entitled to a refund or set-off for any fees, charges or other monies paid to
ZixIt for any reason.
5.3 Termination By Distributor. This Agreement may be terminated by
Distributor by written notice to ZixIt upon the happening of any of the
following: (a) insolvency or adjudication of bankruptcy or the petition for or
consent to or becoming subject to any relief under any bankruptcy,
reorganization or moratorium statutes or similar debtor relief laws by or of
ZixIt; and
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(b) any material breach by ZixIt of this Agreement that is not cured within 30
days after written notice by Distributor to ZixIt specifying the alleged breach
in reasonable detail.
5.4 Effect on Payments. Upon the expiration or termination of this
Agreement, Distributor will pay to ZixIt all fees (including the Minimum
Guaranteed Services Fee) earned by ZixIt (pursuant to Section 3) prior to the
effective date of the expiration or termination that have not yet been paid.
6 COMPLIANCE WITH LAWS. Distributor agrees that it will comply with all
applicable laws imposed by any foreign governmental agency or foreign state or
other political subdivision in the Territory. Distributor shall also comply with
the requirements of the U.S. Foreign Corrupt Practices Act, as outlined in
Exhibit G attached hereto.
7 CONFIDENTIALITY AND USE OF PROTECTED INFORMATION.
7.1 Nondisclosure. Distributor shall keep in strict confidence any and
all Protected Information. Furthermore, Distributor shall not directly or
indirectly disclose such Protected Information or make it available for any
purpose to any person or entity other than bona-fide employees of Distributor or
its wholly-owned subsidiaries who have a legitimate "need to know." Distributor
shall also require such personnel, by written agreements with such personnel, to
keep in confidence, not disclose or make available to any other person, or use
any such Protected Information. In no event shall any disclosure of Protected
Information be made to any competitor, actual or potential, of ZixIt in any
applications market.
7.2 Exceptions. Distributor shall have no obligation under 7.1 with
respect to "Protected Information" that: (a) is or becomes part of the public
domain through no wrongful act of Distributor; (b) is or becomes known to
Distributor (from a source other than ZixIt) without the source violating any
duty to ZixIt or any confidentiality restriction on subsequent disclosure or
use; or (c) is disclosed pursuant to any judicial or governmental requirement or
order; provided that, Distributor gives ZixIt sufficient prior notice in order
to contest such requirement or order.
7.3 Use. Distributor shall not directly or indirectly use Protected
Information for its own benefit or the benefit of any third-party.
7.4 Copies; No Rights. Distributor shall reproduce Protected
Information only to the extent necessary for fulfilling its obligations under
this Agreement. All Protected Information, including copies thereof, shall
remain the property of ZixIt and shall be immediately returned to ZixIt upon the
request of ZixIt or upon any termination of this Agreement, whichever occurs
first. Neither this Agreement nor the disclosure or receipt of Protected
Information shall constitute or imply a grant of any rights, by license or
otherwise, in any Protected Information disclosed to Distributor by ZixIt.
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8 GENERAL.
8.1 Assignment. Distributor shall not without the prior written consent
of ZixIt assign or attempt to assign this Agreement or any of its rights
hereunder or delegate any of its duties hereunder. For the purposes of this
Subsection, a change in controlling ownership of Distributor shall be deemed to
be an assignment hereunder. Any attempted assignment in violation of the
preceding sentences shall be void and ineffective for all purposes. ZixIt may at
any time assign all or any part of its right to receive payments from
Distributor under this Agreement to any person. ZixIt may also assign this
Agreement to any ZixIt affiliate. Subject to the foregoing, this Agreement shall
be binding upon and inure to the benefit of the parties and their successors or
assigns. The term "affiliate" as used in this Agreement with respect to an
entity means an entity controlling, controlled by, or under common control with
such entity.
8.2 Patents; Marks. Distributor acknowledges and agrees to the validity
of all patents, trademarks, service marks, and applications therefore of ZixIt
and its affiliates. Distributor shall take no action to challenge the validity
of any patent, trademark, service mark, or applications therefor of ZixIt or its
affiliates, and ZixIt may terminate this Agreement upon notice to Distributor in
such event.
8.3 Relationship of Parties. The relationship between ZixIt and
Distributor hereunder is that of independent contractor. Nothing herein shall be
construed to constitute Distributor an agent, licensee, employee or consignee of
ZixIt, nor a partner or joint venturer with ZixIt. Neither party shall, in its
contractual relationships with third parties or otherwise, represent or imply
that any agency, licensee, employee or consignee relationship exists between the
parties or that either party is a partner or joint venturer of the other party.
ZixIt shall have no liability to Distributor's Eligible Customers or their users
in connection with their use of the ZixMail Software/Service.
8.4 Force Majeure. Neither party shall be held responsible for any
delay in performance hereunder arising out of causes beyond that party's control
and without that party's fault or negligence. Such causes may include, by way of
example and not limitation, force majeure, fire, strikes, unavailability of
parts, embargoes, governmental requirements or actions of civil or military
authorities, acts of nature or of the public enemy, inability to secure material
or transportation facilities, or acts or omissions of carriers. Notwithstanding
the foregoing, each party reserves the right to terminate this Agreement under
5.2 or 5.3, as applicable, if the other party fails to perform its obligations
hereunder due to an act of force majeure.
8.5 Limitation on Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
(INCLUDING LOSS OF PROFITS) OF ANY NATURE ARISING UNDER THIS AGREEMENT,
REGARDLESS OF WHETHER LIABILITY ARISES IN CONTRACT, TORT, STRICT LIABILITY,
BREACH OF WARRANTY, INDEMNIFICATION, OR OTHERWISE. IN ADDITION TO THE FOREGOING,
ZIXIT'S AGGREGATE LIABILITY TO DISTRIBUTOR ARISING UNDER THIS AGREEMENT OR
RELATING TO THE PROVISION OF THE ZIXMAIL SOFTWARE/SERVICE TO DISTRIBUTOR UNDER
ANY THEORY OF RECOVERY SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY
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DISTRIBUTOR TO ZIXIT UNDER THIS AGREEMENT WITHIN THE ONE-YEAR PERIOD PRECEDING
THE ASSERTION OF A CLAIM BY DISTRIBUTOR.
8.6 Governing Law; Authority. This Agreement shall be governed, by the
laws of the state of Texas (without regard to its choice of law rules). The
parties expressly exclude the applicability of the Convention on Contracts for
the International Sale of Goods. Distributor agrees to submit to the personal
jurisdiction of any court of competent subject matter jurisdiction in the state
of Texas. If there is a foreign language translation of this Agreement, the
English version shall be the governing language.
8.7 Severability; Captions. If any provision of this Agreement is
deemed to be unlawful or unenforceable, such provision shall be deemed
severable, and the other provisions shall remain in full force and effect. The
failure of either party to exercise, in any respect, any right provided for
herein shall not be deemed a waiver of that right or any other right in this
Agreement. If there is a conflict between any part of this Agreement and any
present or future law, this Agreement shall be curtailed only to the extent
necessary to bring it within the requirements of that law. The headings herein
are provided for ease of reference only and are not to be used in interpreting
the provisions of this Agreement.
8.8 Notices. All official notices, requests, demands, reports or other
communications pursuant to this Agreement shall be given by prepaid certified
mail, return receipt requested, or personally delivered to the respective
parties at the addresses set forth below:
<Table>
<S> <C>
If to: ZixIt Corporation If to: 911 Computer Co., Ltd.
2711 North Haskell Avenue Suit #214, 672, Seounggok-Dong,
Dallas, Texas 75204-2911 Ansan, Kyungki-Do, 425-836
USA Korea
Attn: Legal Department Attn: Charles Han, COO
Tel: (214) 370-2000 Tel: 82-2-5393-911
Fax: (214) 515-7385 Fax: 82-2-7049-196
Contact for technical matters:
Ted Hull-Ryde
Vice President of Product Strategy
(214) 370-2028 (phone)
(214) 370-2074 (fax)
tryde@zixit.com
Contact for business matters:
Steve Gersten
Senior Vice President of Sales & Marketing
(214) 370-2039 (phone)
(214) 370-2074 (fax)
sgersten@zixit.com
</Table>
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Such notices shall be deemed given when received by the other party.
8.9 Entire Agreement. This Agreement constitutes the complete
understanding between the parties with respect to the subject matter hereof and
supersedes all previous communications and representations or agreements,
whether written or oral, with respect to the subject matter hereof. No
modification to this Agreement will be binding upon the parties unless
acknowledged in writing by their duly authorized representatives.
8.10 Public Statements. Upon the execution of this Agreement, each
party has the right to issue a press release pertaining to this Agreement. Each
party will give the other party a reasonable opportunity to review and comment
on its press release prior to issuance.
8.11 Remedies. Distributor agrees that in the event of any threatened
or actual breach by Distributor of any of its obligations under Section 7, ZixIt
will suffer irreparable harm and that monetary damages will be inadequate to
compensate ZixIt for such breach. Accordingly, Distributor agrees that ZixIt
will, in addition to any other remedies available to it at law or in equity, be
entitled to preliminary and permanent injunctive relief to enforce any such
breach of the terms of this Agreement. Distributor further agrees that all of
its obligations under Section 7 shall survive and continue after termination of
this Agreement for any reason.
8.12 Indemnification. Each party shall indemnify, defend and hold
harmless the other and its officers, employees, directors, shareholders,
suppliers and agents, from any losses, claims, demands, actions, causes of
action, suits, costs, attorney's fees, damages, expenses, compensation,
penalties, liabilities or obligations of any kind (collectively, "Losses")
asserted by a third party that arise out of or relate to the indemnifying
party's: (i) failure to comply with applicable law or (ii) failure to comply
with the terms of this Agreement.
8.13 Further Assurances. Distributor, and the person signing on behalf
of Distributor, represents and warrants that it has the full legal capacity and
authority to enter into and perform the obligations of this Agreement without
any further approval, and that entering into this Agreement does not violate any
other obligation to which it may be subject.
8.14 Rules of Construction; Multiple Counterparts. This Agreement shall
be construed equally against the parties regardless of who is more responsible
for its preparation. This Agreement may be executed in multiple counterparts
that, together, shall be deemed a single binding agreement.
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EXECUTED the date set forth below the parties signatures, to be
effective as of October 25, 2001 (the "Effective Date").
ZIXIT CORPORATION 911 COMPUTER CO., LTD.,
By: /s/ Steven Gersten By: /s/ Senng Wook, Park
------------------------------ -----------------------------------
Name (print): Steven Gersten Name (print): Senng Wook, Park
-------------------- --------------------
Title: Sr. Vice President Title: President
--------------------------- ---------------------------
Date: 10/25/01 Date: 10/25/01
---------------------------- ----------------------------
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EXHIBIT A
PRICE SCHEDULE
A-1
<PAGE>
EXHIBIT B
PRE-EXISTING ARRANGEMENTS
ZixIt has already entered into the following distribution arrangements:
1. Entrust Technologies, Inc. (Nasdaq: ENTU), under which Entrust has the right
to incorporate ZixMail into Entrust's products, to provide users of Entrust's
digital certificates with the option of sending secure email through the
ZixMail.net service.
2. IT Factory, Inc., a leading developer of Lotus Notes applications, under
which IT Factory has the right to market ZixMail to Lotus Notes, Lotus Domino,
Microsoft Outlook and Microsoft Exchange Server users.
3. sNET Systems Corporation, the leading developer of distributed network
deception management solutions, under which sNET has the right to integrate the
use ZixMail into sNET's computer network security solutions.
4. Xenos (TSE: XNS), a leading provider of software that allows companies to
rapidly Web enable their customers' bills and statements, under which Xenos has
the right to market ZixMail.
5. Hummingbird Ltd. (Nasdaq: HUMC) (TSE:HUM), a world-leading enterprise
solutions company, under which Hummingbird has the right to offer ZixMail within
the Hummingbird Enterprise Information Portal (EIP).
6. Control Systems Inc., a provider of cost recovery products, under which
Control Systems has the right to market ZixMail to law firms and other
professional organizations as part of Control Systems' cost recovery product
suite.
7. Esker, Inc., a Lyon, France-based leader in intelligent information delivery,
under which users of Esker's Pulse(TM) product, an intelligent multi-channel
delivery solution of business-critical information, will be enabled to send
electronic documents and data securely through ZixIt's ZixMail.net(TM) secure
message portal.
8. Net2Link, LLC, a California-based provider of security and infrastructure
solutions to vertical markets, under which ZixIt will be a preferred secure
email solutions provider for Net2Link's healthcare customers.
9. Yahoo! (Nasdaq: YHOO), a leading global Internet communications, commerce,
and media company, under which Yahoo has agreed to offer the ZixMailecure email
service with the Corporate Yahoo! (http://corporate.yahoo.com) portal offering.
B-1
<PAGE>
EXHIBIT C
LICENSE AND SERVICES AGREEMENT
For the use of ZixIt Corporation Products, between Distributor
and its Customer
DISTRIBUTOR NAME:
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LICENSE NO.
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This License and Services Agreement ("Agreement") is between the Customer
identified below and 911 Computer Co., Ltd.
USE OF SOFTWARE AND SERVICE
When Distributor accepts an order, Customer and its users (collectively and
individually, as appropriate, "Customer") will have a non-exclusive license and
right, subject to the terms and conditions of this Agreement, to use the ZixIt
service ("ZixIt Service") that Customer subscribes to, the executable form of
the related ZixIt software (the "Software"), and related documentation files
("Documentation"). The Software and the Documentation are collectively referred
to as the "Licensed Materials."
CUSTOMER NAME
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BILLING ADDRESS
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CITY, STATE, ZIP/POSTAL CODE, COUNTRY
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CONTACT NAME
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CONTACT EMAIL
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CONTACT TELEPHONE CONTACT FAX
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TITLE: RESTRICTIONS
Title to the Licensed Materials and the ZixIt Service and all intellectual
property rights remains at all times with ZixIt. Customer will not remove or
destroy any proprietary markings of ZixIt. In no event will Customer de-compile,
disassemble or otherwise reverse engineer the Licensed Materials, except to the
extent that this restriction is expressly prohibited by applicable law, or
attempt to infiltrate, hack or otherwise interfere with the operation of the
ZixIt servers.
ENTIRE AGREEMENT AND MODIFICATIONS
This Agreement, including the terms and conditions and other exhibits attached
to this Agreement, represent the entire agreement between Distributor and
Customer with respect to the use of the Licensed Materials and ZixIt Service.
Customer agrees that all other agreements, proposals, purchase orders,
representations and other understandings concerning the Licensed Materials and
ZixIt Service, whether oral or written, between the parties are superseded in
their entirety. No alterations or modifications to this Agreement will be valid
unless made in writing and signed by the parties. No attachment, supplement or
exhibit to this Agreement shall be binding against Distributor unless signed by
an authorized signatory of Distributor.
EMAIL CLIENT
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DOMAIN(S) COVERED
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TERM/RENEWAL
The term of this Agreement for the Customer shall extend for ________ years (the
"Term") and shall automatically renew for such Term unless either party gives
the other party written notice of non-renewal more than 30 days prior to the end
of the Term.
(SEE NEXT PAGE FOR ADDITIONAL IMPORTANT PROVISIONS)
(License and Services Agreement - Distributor/Customer)
C-1
<PAGE>
The following terms and conditions supersede any terms and conditions that may
be included in the software installation package for the Software.
1. Limited Warranty; Infringement. Distributor warrants that the Software will
perform substantially in accordance with the specifications for a period of 90
days from delivery to Customer. If it is determined that the Software does not
operate according to such specifications, Distributor's only responsibility will
be to use its best efforts, consistent with industry standards, to cure the
defect. Distributor will defend, or, at its option, settle any action at law
against Customer based on a claim that Customer's use of the Software in
accordance with this Agreement infringes any patent, copyright or other
intellectual property right of any third party. Distributor shall not have any
duty or liability for such infringement if the infringement arises from
Customer's modification of the Software or from the use of the Software in
combination with other products or software not furnished by Distributor.
2. Technical Info. ZixMail messages optionally routed through ZixIt's mail
relays, rather than through Customer's email server, are limited to 10 Megabytes
compressed in size per message. See our on-line help pages, accessible through
www.zixit.com, for technical information about the ZixIt Service. Technical
support is available through the ZixIt Distributor from whom Customer subscribes
for the ZixIt Service.
3. Assignment. Either party may assign this Agreement to any third party,
provided that such party agrees to assume the obligations of the assigning party
hereunder.
4. Acknowledgements. The Software incorporates compression code by the Info-ZIP
group. There are no extra charges or costs due to the use of this code, and the
original compression sources are freely available from CompuServe in the IBMPRO
forum and by anonymous ftp from the Internet site
"ftp.uu.net/pub/archiving/zip". We will also, upon request, mail Customer the
full sources to the compression code that we use on a 3.5" MSDOS-format diskette
(or other appropriate medium) for the cost of mailing. Send U.S. $10.00 to us at
our address noted above, Attention: Legal Department, and reference "request for
Info-ZIP source code." Also, hash functions used in the Software are derived
from the RSA Data Security, Inc. MD-5 Message-Digest Algorithm. The Software
incorporates spell-checking code from The Sentry Spelling-Checker Engine,
copyright(c) 1999 WintertreeSoftware, Inc.
5. Export and Import Restrictions. The Licensed Materials contain encryption
technology that is controlled for export by the U.S. government. Under U.S. law,
Customer may not (and agrees not to) export, re-export, or download the Licensed
Materials (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya,
North Korea, Sudan, Syria or the Taliban-controlled areas of Afghanistan (or
other countries listed on our web site from time-to-time) or (b) to anyone on
the U.S. Treasury Department's list of Specially Designated Nationals or the
U.S. Commerce Department's Table of Denial Orders or Entity List. The Licensed
Materials may also be subject to import and/or use regulations in foreign
jurisdictions. It is the Customer's responsibility to comply with foreign laws
and regulations on encryption import, export and use.
6. DISCLAIMERS. OTHER THAN FOR A WARRANTY OF TITLE, THE LICENSED MATERIALS AND
ZIXIT SERVICE ARE PROVIDED "AS IS," "AS AVAILABLE" WITHOUT WARRANTIES OF ANY
KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER YOU NOR WE WILL BE
LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING UNDER THIS
AGREEMENT OR IN CONNECTION WITH YOUR USE OF THE LICENSED MATERIALS OR ZIXIT
SERVICE. IF A COURT DETERMINES OUR DISCLAIMER OF WARRANTY OR LIABILITY TO BE
INEFFECTIVE, IN WHOLE OR IN PART, THEN OUR AGGREGATE LIABILITY TO YOU IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL NOT
EXCEED, FOR ALL CAUSES OF ACTION THAT AROSE IN A CALENDAR YEAR, THE AMOUNTS YOU
ACTUALLY PAID TO US UNDER THIS AGREEMENT FOR SUCH CALENDAR YEAR. OUR LIMITS OF
LIABILITY APPLY REGARDLESS OF THE TYPE OF CLAIM BROUGHT, INCLUDING THOSE FOR
NEGLIGENCE.
7. Breach. If Customer breaches any term of this Agreement or if Customer
becomes insolvent or if bankruptcy or receivership proceedings are initiated by
or against Customer, Distributor shall have the right to terminate this
Agreement immediately.
8. General. This Agreement shall be governed by the laws of The Republic of
South Korea.
ZIXIT CORPORATION CUSTOMER
-------------------------------------------------------------------------------
By: By:
-------------------------------------------------------------------------------
Name (printed): Name (printed):
-------------------------------------------------------------------------------
Title: Date: Title: Date:
-------------------------------------------------------------------------------
(License and Services Agreement - Distributor/Customer)
C-2
<PAGE>
EXHIBIT D
CUSTOMER INFORMATION SHEET
DISTRIBUTOR NAME:
[DISTRIBUTOR MUST SUPPLY THIS INFORMATION TO ZIXIT]
CUSTOMER INFORMATION:
Name:
----------------------------------------------------------------------
Address:
----------------------------------------------------------------------
City, State, Zip/Postal Code, Country:
----------------------------------------
ZIXIT SERVICES: Check boxes that are applicable.
ZIXMAIL SERVICES
[ ] ZixMail Start Date:
----------------
o Number of Email Addresses:
o Term: year(s)
-----------------
o Email client
------------------------------------
o Domain(s) covered
-----------------------------------------------
Annual Corporate Key
[ ] Yes [ ] No
If "yes," customer is required to complete ZixIt "Activate/Deactivate Corporate
Key Function" form
D-1
<PAGE>
EXHIBIT E
1. ZixMail Software/Service. So long as Distributor has made the payments it is
required to make under Section 3 of the Agreement, ZixIt agrees to provide the
ZixIt Service to an Eligible Customers' employees and other agents that reside
in the Territory.
2. Disclaimer. THE SOFTWARE AND ANY SUBSEQUENT RELEASE OF THE SOFTWARE IS
PROVIDED "AS IS," AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE,
COMPLIANCE OF DATA OUTPUT WITH APPLICABLE LAW, DESIGN, QUALITY, DURABILITY,
CONTINUOUS USE, PERFORMANCE OR ERROR-FREE OPERATION (EVEN IF CREATED BY THE
INTERNATIONAL SALE OF GOODS CONVENTION) ARE DISCLAIMED IN THEIR ENTIRETY.
3. Technical Info. ZixMail messages optionally routed through ZixIt's mail
relays, rather than through and Eligible Customer's email server, are limited to
10 Megabytes compressed in size per message. See ZixIt's on-line help pages,
accessible through www.zixit.com, for technical information about the ZixMail
Service. Technical support is available via email at support@zixit.com.
4. Acknowledgements. The ZixMail Software is being provided for no charge by
ZixIt's subsidiary ZixMail Technology Company, and the Services are being
provided in exchange for the specified fees by ZixIt's subsidiary ZixMail.com,
Inc. The ZixMail Software incorporates compression code by the Info-ZIP group.
There are no extra charges or costs due to the use of this code, and the
original compression sources are freely available from CompuServe in the IBMPRO
forum and by anonymous ftp from the Internet site
"ftp.uu.net/pub/archiving/zip." ZixIt will also, upon request, mail to
Distributor the full sources to the compression code that we use on a 3.5"
MSDOS-format diskette (or other appropriate medium) for the cost of mailing.
Send 10.00 to us at our address noted above, Attention: Legal Department, and
reference "request for Info-ZIP source code." Also, hash functions used in the
ZixMail Software are derived from the RSA Data Security, Inc. MD-5
Message-Digest Algorithm. The ZixMail Software incorporates spell checking code
from The Sentry Spelling-Checker Engine, copyright(c) 1999 WintertreeSoftware,
Inc.
E-1
<PAGE>
EXHIBIT F
PAYMENT SCHEDULE
PAYMENT MINIMUM AMOUNT DUE DATE
(U.S. DOLLARS)
1 100,000 October 30, 2001
2 114,285 November 9, 2001
3 500,005 January 25, 2002
4 214,285 April 25, 2002
5 214,285 July 25, 2002
6 214,285 October 25, 2002
7 214,285 January 25, 2003
8 214,285 April 25, 2003
9 214,285 July 25, 2003
F-1
<PAGE>
EXHIBIT G
COMPLIANCE WITH LAWS
1. Compliance With U.S. Foreign Corrupt Practices Act. In connection with
performing its obligations under this Agreement, Distributor agrees that it will
not offer, pay, promise to pay, or authorize the payment of any money, or offer,
gift, promise to give, or authorize the giving of anything of value to:
(i) any foreign official, foreign political party or official thereof,
or any candidate for foreign political office for purposes of:
(a) influencing any act or decision of such official, political
party or official thereof, or candidate in his or its official capacity; or
(b) inducing such official, political party or official thereof,
or candidate to do or omit to do any act in violation of the lawful duty of such
official, party or official thereof, or candidate; or
(c) inducing such official, party or official thereof, or
candidate to use his or its influence with a foreign government or any
instrumentality thereof to affect or influence any act or decision of such
government or instrumentality.
(ii) any person, while knowing that all or a portion of such money or
thing of value will be offered, given, or promised, directly or indirectly, to
any foreign official, to any foreign political party or official thereof, or to
any candidate for foreign political office, for purposes of accomplishing the
prohibited acts in Subsection 6.1(i) above.
2. Permitted Exceptions. The above does not prohibit Distributor from:
(i) making any facilitating or expediting payment to a foreign
official, political party, or party official, the purpose of which is to
expedite or to secure the performance of a routine governmental action by such
foreign official, political party, or party official;
(ii) making a payment, gift, offer, or promise of anything of value
that is lawful under the written laws and regulations of the country of the
foreign official, political party, party official or candidate to whom such
payment, gift, offer or promise was made; or
(iii) making a payment, gift, offer, or promise of anything of value
that is a reasonable and bona fide expenditure, such as travel and lodging
expenses, incurred by or on behalf of a foreign official, political party, party
official, or candidate and is directly related to (a) the promotion,
demonstration, or explanation of ZixIt' s or Distributor's products or services
or (b) the execution or performance of a contract with a foreign government or
agency thereof.
G-1