EXHIBIT 10.5
E-RESPONSES.COM DISTRIBUTION AGREEMENT
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SERVICE BUREAU ARRANGEMENT
THIS AGREEMENT is made the 28th day of September (the "Effective Date")
BETWEEN:
IVP TECHNOLOGY CORPORATION, a public corporation incorporated
pursuant to the laws of the State of Nevada
("Licensor")
- and -
E-RESPONSES.COM, a corporation incorporated pursuant to the laws of
the State of Nevada
("Distributor")
Background:
A. Distributor acts as a service bureau in making software solutions
available to the automotive and real estate / mortgage sectors.
B. Licensor has the exclusive right to license the PowerAudit suite of
software products (the "Software") and related user documentation (the
"Documentation")(collectively, the Software and the Documentation
constitute the "Work") in, among other locations, the United States of
America (the "Territory").
C. The Software is an Internet-based software tool used to transmit data
between field personnel collecting data using handheld computers (each
such handheld computer, requiring a "PowerAudit Client Licence") and a
head office server for one or more specific uses of such data (such
licence to use the server, being a "PowerAudit Server Licence" and each
such specific use of data, being, an "Applied Use"). The Software can be
used in a range of field data collection/reporting applications.
D. Distributor wishes to act, and Licensor wishes to have Distributor act, as
a service bureau on the following basis, as more particularly described in
the Agreement:
1. Distributor would make the PowerAudit Server software available from
its centrally located server on a service bureau basis to end users
("End User", as further defined in this Agreement) for a monthly
fee;
2. PowerAudit Client Licences would be granted on a month by month
basis to End Users for use in conjunction with the PowerAudit Server
software. The PowerAudit Client software would be resident on hand
held hardware which may be sold or leased by Distributor;
3. Subject to Licensor's assistance as contemplated hereunder,
Distributor would provide the maintenance, support and training
services contemplated by this Agreement (collectively, the
"Services", as more particularly described herein) to End Users.
NOW THEREFORE this Agreement witnesses that in consideration of the mutual
covenants contained herein, and for valuable consideration, mutually exchanged
and acknowledged, the Parties agree as follows:
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ARTICLE ONE
INTERPRETATION
1.1 Definitions. In this Agreement, unless the context otherwise requires, each
capitalized term shall have the meaning attributed thereto in Schedule "A".
1.2 Schedules. The following are the schedules attached to and forming part of
this Agreement:
Schedule "A" - Definitions
Schedule "B" - Software
Schedule "C" - Fees
1.3 Headings. The headings in this Agreement are for convenience of reference
only and shall not affect the construction or interpretation hereof.
1.4 Extended Meanings. Words expressed in the singular include the plural and
vice-versa and words in one gender include all genders.
1.5 Entire Agreement. This Agreement, and any agreements and other documents to
be delivered pursuant to it, constitute the entire agreement between the Parties
pertaining to the subject matter hereof and supersede all prior agreements,
understandings, negotiations and discussions, oral or written, between the
Parties. The execution of this Agreement has not been induced by, nor do either
of the Parties rely upon or regard as material, any representations, warranties,
conditions, other agreements or acknowledgements not expressly made in this
Agreement or in the agreements and other documents to be delivered pursuant
hereto.
1.6 Severability. If any provision of this Agreement, or the application
thereof, shall for any reason and to any extent be invalid or unenforceable, the
remainder of this Agreement, and (if appropriate) such provision to other
persons or circumstances, shall remain in full force and effect and be
interpreted so as best to reasonably effect the intent of the Parties.
1.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada and shall be treated, in all
respects, as an Nevadan contract. The Parties hereby irrevocably submit to the
non-exclusive jurisdiction of the Courts of Nevada.
1.8 Currency. Unless otherwise provided, all references to currency shall be in
U.S. dollars.
ARTICLE TWO
GRANT OF LICENCE AND ANCILLARY MATTERS
2.1 Non-Exclusive Licence. For use within the Territory, and subject to the
other terms and conditions of this Agreement, Licensor hereby grants Distributor
the right to act as a service bureau, on a non-exclusive basis, to the
automotive sector and real estate / mortgage sectors, on the following basis:
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1. Distributor may provide End Users with access to the executable
version of object code of the PowerAudit Server software on
Distributor's centrally located server on a service bureau basis for
a monthly fee;
2. PowerAudit Client Licences for the executable version of the object
code may be granted by Distributor on a month by month basis to End
Users for use in conjunction with the PowerAudit Server software.
The PowerAudit Client software would be resident on hand held
hardware which may be sold or leased by Distributor;
3. Subject to Licensor's assistance as contemplated hereunder,
Distributor may provide the demonstration, maintenance, support and
training services contemplated by this Agreement (collectively, the
"Services", as more particularly described herein) to End Users.
4. Prior to executing a service bureau arrangement of a similar nature
(the "Service") in the Territory with a third party for a sector to
which the Distributor has already been granted a non-exclusive
licence, Licensor shall provide Distributor thirty (30) prior
written notice (the "Notice Period") of such arrangement and hereby
grants Distributor the right notify Licensor within the Notice
Period of its intention to provide the Service on the same terms and
conditions as those negotiated with the third party service
provider.
5. Additional sectors may be added to the Distributor's non-exclusive
marketing rights at the request of the Distributor and the consent
of the Licensor acting reasonably.
2.2 Advertising and Trade Marks.
(a) Distributor agrees to, and is hereby granted a non-exclusive licence to,
advertise, promote, market and service the Software under the trademarks,
trade names or insignia (collectively, the "Licensor Marks") regularly
applied to them by Licensor, and without making reference in any way to
any other name, brand or trademark, except Distributor's own trade name
and trademarks. Distributor shall not use the Licensor Marks in any manner
likely to confuse, mislead, or deceive the public, or to be injurious or
inimical to the best interests of Licensor. All goodwill in the Licensor
Marks shall accrue to Licensor or its licensors.
(b) Licensor has the right at any time to review Distributor's use of the
Licensor Marks, and the quality of goods and services provided in respect
of the Licensor Marks, and may require Distributor to terminate any use
that does not adequately protect the Licensor Marks or if the goods or
services are not of a quality at least as high as that of Licensor's own
goods and services.
(c) Distributor agrees that, upon the termination of this Agreement for any
reason, Distributor shall immediately discontinue all such uses and
refrain from the use of any confusingly similar marks which might lead the
public to believe that Distributor continues to license the Software or
that its place of business is an authorized distribution and service
location for the Software.
(d) Distributor will be provided with access to Licensor's marketing templates
and demonstration data.
2.3 Delivery of Documentation. In respect of the Software, Licensor shall
deliver for inspection and use by Distributor (as requested from time to time
and in any event at least within ninety (90) days of its general commercial
release by Licensor):
(i) a Master Disk; and
(ii) an electronic version of all Documentation therefor in machine
readable format.
2.4 Training. Licensor shall offer a "train the trainer" two day sales and
technical training program at its location in Toronto ("Sales Training" and
"Technical Training") for two employees of Distibutor at no additional cost.
Distributor shall send a minimum of one employee to Sales Training and one
employee to Technical Training. Distributor agrees that only those of its
employees who complete Sales Training or are trained by the trainer will be
authorized to licence the Software and that only those of its employees who
complete Technical Training or are
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trained by the trainer will be authorized to service the Software. The
Distributor shall pay additional fees for travel and expenses if, at the request
of the Distributor, the training occurs outside the Licensor's Toronto location.
Distributor shall only send those employees to Sales Training that have previous
experience in the sale of technology products. Distributor shall only send those
employees to Technical Training that have a minimum of one year's experience
with Microsoft Windows NT, MS Internet Information Server, MS SQL Server, and
TCP/IP and Internet internetworking.
2.5 Ongoing Support of Software. Licensor shall provide to Distributor the
following technical support resource commitments:
(i) Licensor shall designate one or more appropriately qualified
technical support representatives (the "Designated Support
Representative") who shall be available during Licensor's normal
business hours during the term of this Agreement to respond to
technical support requests of Distributor and who shall provide and
explain work arounds (if any) for, any bug fixes and error
corrections developed by Licensor in respect of, the Software;
(ii) Distributor shall be entitled to receive from such Designated
Support Representative reasonable advice and assistance with respect
to familiarizing Distributor with the use, operation and
administration of Software; and
(iii) Licensor shall make available to Distributor ongoing general
training and technical support in respect of the Software currently
licensed and supported by Licensor as soon as reasonably practicable
upon request.
(iv) As specified in Section 2.3, Licensor shall update all Software made
available to Distributor as such updates are made available for
general commercial release.
2.6 Marketing Effort. As a distributor of Licensor, Distributor shall perform,
in a diligent and business-like manner, all representative services which may be
reasonably requested by Licensor from time to time including using its best
efforts, consistent with good business practice, to diligently and continuously
promote the use of the Software by Licensor to prospective licensees so as to
maximize Fees hereunder.
2.7 Marketing Reports and Compensation for Referrals. Distributor shall keep
Licensor reasonably apprised of its planned and completed marketing efforts,
including providing written reports to Licensor on a quarterly basis (or such
other period as Licensor may reasonably request) in such form as is reasonably
requested by Licensor from time to time. An initial marketing report of its
planned activities for the first quarter, without projections of cost or time,
shall be provided within thirty days of the Effective Date. Distributor shall
promptly refer to Licensor all licence inquiries received by Distributor outside
of Distributor's grant of appointment under Section 2.1. That being said,
Licensor shall compensate Distributor in an equitable manner for sales leads
provided by Distributor. The purpose of this Agreement is not to circumvent
revenue opportunities for Distributor through direct licensing activities by
Licensor but rather, where a sales lead prefers a licence from Licensor to an
arrangement under this Agreement, to fairly compensate Distributor for such
sales lead. Without limiting the generality of the foregoing and recognizing
that "fair compensation" and the basis on which it is to be paid are questions
of fact that may vary from referral to referral, Licensor is anxious to create a
constructive and equitable relationship with Distributor and specifically agrees
to promptly pay the Distributor a referral fee of five percent (5%) of the gross
revenue paid to the Licensor throughout the term of any agreement with an end
user introduced to the Licensor by the Distributor or, alternatively, a referral
fee of ten percent (10%) of the gross revenue paid to the Licensor throughout
the term of any agreement with an end user referred to the Licensor by the
Distributor where the Distributor provides more than the introduction and, for
example, plays an active and material role in any negotiations culminating in an
agreement between the Distributor and the referred party.
2.8 General Obligations. Both Parties shall:
(a) maintain such competent staff and otherwise commit such other resources as
are reasonably required to meet its day-to-day obligations hereunder;
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(b) comply fully with all applicable laws and regulations of all relevant
jurisdictions relative to its activities under this Agreement; and
(c) obtain and maintain such permits and approvals as are required to meet its
day-to-day obligations hereunder.
2.9 Use Pursuant to Agreement. Due to the complexities of developing computer
software products, Licensor provides only expressly limited warranties and
remedies in respect of the use of the Software by third parties. No service
bureau, arrangement, licence or maintenance and support of Software by
Distributor shall be made except in accordance with an agreement that in any
event protects Licensor's and its licensor's interests by including:
(a) a provision restricting the use of the Software to the internal business
purposes of an End User as defined in Schedule "A" hereto and not for
service bureau purposes (as opposed to the right granted to Distributor
under this Agreement to be a service bureau to End Users) ;
(b) a provision requiring the End User to take all reasonable precautions to
keep the applicable aspects of Software and any related documentation
confidential;
(c) a provision prohibiting the End User from reverse engineering, translating
or creating other versions of the software or other elements of the
Software;
(d) a provision acknowledging that ownership of the copyright and all other
Intellectual Property Rights in the Software remains exclusively with
Licensor and its licensors;
(e) a provision limiting Licensor's liability to the End User to the same or
greater extent than Licensor's current standard form of end user or
maintenance and support agreement provides;
(f) a provision only representing the performance of the Software as set forth
in the most current technical literature or specifications as made
available to Distributor by Licensor from time to time; and
(g) a provision prohibiting the End User from assigning the licence to another
entity or otherwise.
Any right to use the Software granted by Distributor which is inconsistent with
the foregoing without Licensor's prior written consent shall be at Distributor's
own risk to the extent that it results in the granting of rights, remedies or
damages in excess of what would otherwise be available to the End User under
Licensor's current standard form of end user agreement and Distributor shall
indemnify Licensor for any damages accruing to Licensor as a result of such
actions by Distributor.
Distributor, in consultation with Licensor, shall develop a standard form End
User License Agreement acceptable to Licensor for use with the Software.
Distributor may amend the End User License Agreement from time to time, provided
that Licensor approves any change before the End User License Agreement, in such
amended form, are entered into with End Users. No Person shall receive any
Software unless such Person shall have signed an End User License Agreement.
ARTICLE THREE
STANDARD REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 Acknowledgement of Distributor re: Licensor's Intellectual Property Rights.
Distributor recognizes the great value of the Software and of the goodwill
associated therewith and acknowledges that all Intellectual Property Rights
therein and goodwill pertaining thereto belongs to Licensor or its licensors and
further acknowledges that ownership of the Software therefrom and the
Intellectual Property Rights therein shall be held in the name of Licensor or
such Person as Licensor may designate. Distributor acknowledges that the
Intellectual Property Rights in any modifications to the Software or the
underlying technology or any products or services derived therefrom shall
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remain with Licensor or such Person as Licensor may designate whether or not the
work is performed by Licensor, Distributor, End User or by any other Person.
3.2 Covenants of Distributor re: Licensor's Intellectual Property Rights.
Distributor covenants to Licensor that it shall:
(a) assist and cooperate with Licensor to the extent requested by Licensor in
the protection of Licensor's or its licensor's Intellectual Property
Rights including the execution of any document, including assignment
documentation, to confirm Licensor's or its licensor's title to and
interest in the Software;
(b) take no steps either directly or indirectly to claim or dispute ownership
or the enforceability or validity of Licensor's or its licensor's
Intellectual Property Rights in the Software;
(c) promptly notify Licensor of any infringements or imitations by others of
the Software when such becomes known to Distributor;
(d) promptly notify Licensor of the failure of any End User to abide by any
and all of the terms of the relevant End User Agreement that becomes known
to Distributor;
(e) take all reasonable precautions and actions to ensure that the Software is
not marketed, distributed or otherwise made available to any Person except
in accordance with the terms of this Agreement;
(f) not reverse engineer, decompile, disassemble, the Software except as
expressly provided for in writing by Licensor; and
(g) not remove or deface any logo, notice or legend of copyright, trade marks
or trade secrets or US Government restricted rights notice from any
packaging which contains the Software
3.3 Confidentiality. Each Party covenants to the other Party that it shall keep
confidential the Confidential Information of the other Party to which such Party
obtains access to as a consequence of entering into this Agreement and that it
will take all reasonable precautions to protect such Confidential Information
from any use, disclosure or copying except as expressly authorized by this
Agreement. Each Party shall implement such procedures as the other Party may
reasonably require from time to time to improve the security of the Confidential
Information in its possession or to effectively bind its employees and
contractors to such terms. This Section shall survive the termination of the
Agreement.
3.4 Irreparable Harm. Distributor acknowledges that a breach of any of the
covenants in this Article Three shall result in immediate irreparable and
irremediable damage to Licensor. The Parties agree that, in the event of such
failure, there is no adequate remedy at law and incurring such damage shall be
entitled to relief in the way of temporary or permanent injunctions and such
other and further relief as any Court with jurisdiction may deem just and
proper.
ARTICLE FOUR
FEES AND PAYMENT TERMS
4.1 Fees. In consideration of the provision of the Deliverables, Distributor
agrees to pay Licensor those amounts set out in Schedule "C" (the "Fees").
Licensor and Distributor hereby agree to review and, when appropriate, adjust
the fees reflected in Schedule "C" on a semi-annual or such other basis as is
mutually agreeable for the specific purpose of dividing the Net Revenue received
by the Distributor in respect of its exploitation of the Software on an equal
basis as between the Licensor and Distributor.
4.2 Payment of Fees. Fees are payable based on amounts collected by Distributor.
Fees are payable monthly in U.S. dollars by Distributor by wire transfer to
Licensor's bank in o. Interest at o% is payable on Fees which have been
collected more than forty-five (45) days from the date of payment by Distributor
to Licensor. Interest begins to accrue commencing after the forty-fifth (45th)
day.
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4.3 Audit Rights. Distributor shall maintain full, true and accurate records
containing all information which may be necessary for a determination of the
amount to be paid to Licensor under the terms of this Agreement. Said records
shall be kept at Distributor's principal place of business. Said records and
supporting data shall be available for inspection, during business hours, upon
reasonable notice, by an independent certified accountant retained by Licensor,
and mutually acceptable to Distributor and Licensor which approval shall not be
unreasonably withheld, solely for the purpose of verifying the correctness of
Distributor's compliance with the payment of amounts hereunder.
ARTICLE FIVE
WARRANTIES AND INDEMNITIES
5.1 General Representations and Warranties. Licensor represents and warrants
that it has the sufficient right to grant the rights and licences granted by it
pursuant to this Agreement.
5.2 Year 2000 Warranty. Licensor represents and warrants that the Software, when
used in accordance with its associated documentation, will correctly receive,
process, and provide date data within and between the 20th and 21st centuries.
In the event if the Software fails to correctly receive, process or provide such
date data, Licensor at its expense, shall promptly repair or replace the
Software with Software of equivalent functionality and performance which meets
the foregoing standard. In no event shall Licensor be liable for failure of an
Software to correctly receive, process and provide date data where such failure
results solely from the failure of other products not otherwise provided by
Licensor to properly exchange accurate date data with the Software or as a
result of the characteristics, attributes or content of the data sets imported
into the Software.
5.3 Representations and Warranties re: Services. Licensor agrees that all
services to be provided by it hereunder shall be provided in a professional and
workmanlike manner by personnel appropriately trained in the performance of such
services.
5.4 Compliance with Applicable Law. Each Party represents and warrants that it
is not a party to, bound by or subject to any indenture, mortgage, lease,
agreement, instrument, charter or by-law provision, statute, regulation, order,
judgment, decree or law which would be violated, contravened or breached by, or
under which any default would occur as a result of the execution and delivery by
such Party of this Agreement or the performance by such Party of any of the
terms hereof.
5.5 Indemnity re: Intellectual Property Rights
(a) Licensor agrees to indemnify Distributor and hold it harmless from losses
in connection with or arising out of any claim asserted against
Distributor based upon a contention that the Software, or any portion
thereof, in the form accepted by Distributor or an End User and used
within the scope of this Agreement or the End User Agreement, as
applicable, infringes the Intellectual Property Rights of any third party
provided that:
(i) Distributor promptly notifies Licensor in writing of the claim and
of all material developments in connection with such claim and
provides all assistance otherwise reasonably requested by Licensor;
(ii) Licensor has the right to control, at its own cost, the defence and
all related settlement negotiations; and
(iii) Distributor does not pay or settle any such claim without the
express written consent of Licensor.
(b) Notwithstanding the foregoing, Licensor shall have no liability for any
claim of infringement based on use by Distributor or End User of other
than a current release of the Software as made available by Licensor to
Distributor as required pursuant to the terms of Sections 2.3 and 2.5(iv)
of this Agreement if such infringement would have been avoided by the use
of a current release of such Software, or for any claim of infringement
based on the combination of the Software by Distributor or End User with
any other product
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or service, or for any claim of infringement resulting from unauthorized use of
the Software by Distributor, or for third party elements which Licensor may
incorporate in the Software.
(c) The foregoing represents Licensor's entire liability for a claim of
Intellectual Property Rights infringement.
5.6 Limitation. EXCEPT AS OTHERWISE PROVIDED BY THIS AGREEMENT, THERE ARE NO
WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, PROVIDED BY LICENSOR WITH
OR WITH RESPECT TO THE SOFTWARE OR ANY OTHER DELIVERABLE TO BE PROVIDED BY OR ON
BEHALF OF LICENSOR HEREUNDER. THESE DISCLAIMED WARRANTIES AND CONDITIONS INCLUDE
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE SIX
LIMITATION OF LIABILITY
6.1 Limitation of Liability. The limitation of liability provisions of this
Agreement reflect an informed voluntary allocation of the risks (known and
unknown) that may exist in connection with the provision of goods and services
hereunder by Licensor and such voluntary risk allocation represents a material
part of the agreement reached between Licensor and Distributor. Should Licensor
be in breach of any obligation, Distributor agrees that Distributor's remedies
will be limited to those set forth in this Agreement.
(a) Direct Damages Only. Subject to the restrictions in this Article 6 and
subject to Distributor's election, if so entitled in law, to rescind or be
discharged from this Agreement, in the event of any breach by Licensor of
its obligations under this Agreement, including any breach of a
fundamental term or a fundamental breach, Distributor's exclusive remedy
under this or any related agreement shall be to receive actual, direct
damages up to the amount received hereunder for the provision of
Deliverables in the twelve months prior to the applicable claim being
made; less the amount of any damages already paid or to which Distributor
is or may be entitled by reason of any claim arising out of a breach
(including fundamental breach) by Licensor of this Agreement, or
otherwise, whether based in contract, tort (including negligence), or
otherwise.
(b) No Indirect Damages, etc. IN NO EVENT, WHETHER BASED IN CONTRACT, TORT OR
OTHERWISE, SHALL LICENSOR BE LIABLE FOR ANY CLAIM FOR: (A) PUNITIVE,
EXEMPLARY, OR AGGRAVATED DAMAGES; (B) DAMAGES FOR LOSS OF PROFITS OR
REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, BUSINESS INTERRUPTION, OR
LOSS OF USE OR LACK OF AVAILABILITY OF LICENSOR'S FACILITIES, INCLUDING
ITS COMPUTER RESOURCES AND ANY STORED DATA; (C) INDIRECT, CONSEQUENTIAL OR
SPECIAL DAMAGES; OR (D) CONTRIBUTION OR INDEMNITY IN RESPECT OF ANY CLAIMS
AGAINST LICENSOR OTHER THAN BY END USER.
(c) Time Limit. No action, regardless of form, may be brought by Distributor
more than 12 months after the facts giving rise to the cause of action
have occurred.
ARTICLE SEVEN
TERM AND TERMINATION
7.1 Term and Termination. The term of this Agreement shall commence on the
Effective Date and shall continue, subject to early termination in accordance
with the terms hereof, until [date] (this, being the "Initial Term").
Thereafter, the term shall be automatically extended for succeeding periods of
one (1) year (those, being "Succeeding Terms") unless terminated by either Party
by notice given not less than ninety (90) days prior to the end of the Initial
Term or any Succeeding Term, as the case may be.
7.2 Termination.
(a) This Agreement may be terminated on written notice by a Party, if the
other Party fails to perform or comply with any material term, condition
or covenant of this Agreement and does not remedy its failure
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within thirty (30) days after receiving written notice specifying the
failure and requiring that the failure be remedied.
(b) Notwithstanding Section 7.2(a), the time period for rectification of a
breach under Sections 3.1, 3.2 or 3.3 of this Agreement shall be ten (10)
days.
7.3 Effect of Termination. The Parties expressly agree that upon the termination
or expiration of this Agreement, the permitted use of the Software shall
terminate and all rights granted to Distributor hereunder shall forthwith revert
to Licensor, which shall be free to deal with them as it shall see fit and
Distributor shall:
(a) discontinue immediately all use and reproduction in any manner of
the Software;
(b) subject to Distributor's requirement to comply with all regulatory
reporting and record keeping requirements, deliver to Licensor all
Confidential Information of Licensor and same shall not be used by
Distributor thereafter for any reason whatsoever;) and
(c) each Party shall forthwith pay all sums owing to the other hereunder
or as they subsequently become due.
(d) in the event that this Agreement is terminated pursuant to the
provisions of Section 7.2 above, all revenues attributable to the
use of the Software and payable to Distributor pursuant to the terms
of a user agreement that predates the termination of this Agreement
shall continue to be received and distributed by the Distributor as
anticipated by this Agreement until the earlier of termination of
the service dependant on the Software by the End User as defined in
Schedule "A" hereto or expiration of the Software Distribution
Agreement between Licensor and the developer of the Software on May
31, 2003 or such later date as may be agreed to by the Distributor
and the developer of the Software.
7.4 Survival. Articles oand Sections oand this Section 7.4 shall survive the
termination of this Agreement as well as on any other provisions which by their
nature, ought reasonably to survive termination.
ARTICLE EIGHT
GENERAL
8.1 Notice. Any notice required or permitted to be given hereunder shall be in
writing and shall be sufficiently given if delivered in person during normal
business hours of the recipient on a business day, sent by first class mail,
postage prepaid or sent by facsimile transmission as follows:
(i) in the case of a notice to Licensor to:
Suite 300, 54 Village Centre Place,
Mississauga, Ontario,
CANADA L4Z 1V9
Attention: John Maxwell
President
(ii) in the case of a notice to Distributor to:
c/o Mark's & Devine,
Suite 2004, 23801 Calabasas Road,
Calabasas, California 91302
Attention: Steven R. Price.
C.E.O.
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and shall be conclusively deemed to have been given and to have been received on
the next Business Day following delivery in person, if so delivered, on the
third Business Day following the mailing thereof, if so mailed (excluding each
day during which there exists any interruption of postal services due to strike,
lockout or other cause), or on the day sent by facsimile transmission, if so
sent. Addresses for notice may be changed by giving notice in accordance with
the foregoing.
8.2 Independent Contractor. In giving effect to this Agreement, neither Party
shall be or be deemed an agent of the other Party for any purpose and their
relationship to each other shall be that of independent contractors. Nothing in
this Agreement shall constitute a partnership between the Parties. Neither Party
shall have the right to enter into contracts or pledge the credit of or incur
expenses of liabilities on behalf of the other Party.
8.3 Force Majeure. Except as expressly provided otherwise in this Agreement,
dates and times by which a Party is required to render performance under this
Agreement or any schedule hereto shall be postponed automatically to the extent
and for the period of time that such Party is prevented from meeting them by
reason of any cause beyond its reasonable control, provided the Party prevented
from rendering performance notifies the other Party immediately and in detail of
the commencement and nature of such cause and the probable consequences thereof,
and provided further that such Party uses its reasonable efforts to render
performance in a timely manner utilizing to such end all resources reasonably
required in the circumstances, including obtaining supplies or services from
other sources if same are reasonably available.
8.4 Amendment. No supplement, modification or waiver or termination of this
Agreement shall be binding unless executed in writing by the Party to be bound
thereby. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision (whether or not similar) nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
8.5 Assignment. The rights and obligations of Distributor under this Agreement
shall not be assigned, in whole or in part, by Distributor without the prior
consent in writing of Licensor and any purported assignment made without that
consent is void and of no effect. No assignment of this Agreement shall relieve
Distributor from any obligation under this Agreement or impose any liability
upon Licensor, unless otherwise agreed to in writing by Licensor. Licensor may
assign its rights and obligations under this Agreement to any Affiliate or to a
party purchasing the part of its business with which the subject matter of this
Agreement is related, without Distributor's prior written consent.
8.6 Further Assurances. Each Party agrees that upon the written request of any
other Party, it will do all such acts and execute all such further documents,
conveyances, deeds, assignments, transfers and the like, and will cause the
doing of all such acts and will cause the execution of all such further
documents as are within its power to cause the doing or execution of, as any
other party hereto may from time to time reasonably request be done and/or
executed as may be necessary or desirable to give effect to this Agreement.
8.7 Counterparts. This Agreement may be executed in any number of counterparts.
Each executed counterpart shall be deemed to be an original. All executed
counterparts taken together constitute the Agreement.
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IN WITNESS WHEREOF the Parties have executed this Agreement.
IVP TECHNOLOGY CORPORATION
Per:
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Name: John Maxwell
Title: President
E-RESPONSES.COM
Per:
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Name: Steven R. Price
Title: Chief Executive Officer
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SCHEDULE "A"
DEFINITIONS
In this Agreement, the following expressions shall, unless the subject matter or
context is inconsistent therewith, have the following meanings:
"Agreement" means this distribution agreement, all attached schedules and
all instruments supplemental to or in confirmation of this Agreement or
incorporated into this Agreement by reference, as any or all of the
foregoing may be amended from time to time in accordance with the
provisions of this Agreement;
"Applied Use" means the application of the Software for a specific
business activity (e.g. consumer research and sales order processing would
be two distinct applied uses);
"Business Day" means any day, other than a Saturday, Sunday, or statutory
or civic holiday in the state of Nevada, U.S.A.;
"Confidential Information" means all data and information relating to the
business and management of either Party, including the Software and other
proprietary and trade secrets, technology and accounting records to which
access is obtained hereunder by the other Party, provided, however, that
Confidential Information shall not include any data or information which:
(a) is or becomes publicly available through no fault of the other
Party;
(b) is already in the rightful possession of the other Party prior to
its receipt from the other Party;
(c) is independently developed by the other Party;
(d) is rightfully obtained by the other Party from a third party;
(e) is disclosed with the written consent of the Party whose information
it is; or
(f) is disclosed pursuant to court order or other legal compulsion;
"Deliverables" means the licences granted hereunder by Licensor and the
provision of Master Disks and related Documentation, and the provision of
Maintenance Services and other services to be provided hereunder by
Licensor;
"Documentation" means all end-user, product support, technical service and
other written instructions, information and materials for the Software
that Licensor normally provides to its end users and licensees or that
Licensor provides for, or approves for use with, the Software, including
manuals, on-line help files and electronic copies of any of the foregoing
materials;
"Effective Date" has the meaning attributed at the start of this
Agreement;
"End User" means a Person that is obtaining a licence to use the Software
for its internal use pursuant to an End User License Agreement;
"End User License Agreement" means an Object Code Licence in writing
entered into by [Licensor] with a third-party end user, and containing the
provisions required in Section 2.9;
"Fees" means amounts payable hereunder by Distributor to Licensor for the
provision of Deliverables;
"Intellectual Property Rights" means any proprietary right provided under:
(i) patent law; (ii) copyright law; (iii) trade-mark law; (iv) design
patent or industrial design law; and (v) any other statutory provision or
common law principle applicable to the Software which may provide a right
in either: (i) ideas, formulae,
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algorithms, concepts, inventions or know-how generally including trade
secret and unfair competition laws; or (ii) the expression of such ideas,
formulae, algorithms, concepts, inventions or know-how;
"Licensor Marks" has the meaning attributed thereto in Section 2.2;
"Maintenance Services" means the maintenance and support services to be
provided by Licensor under Section 2.5;
"Master Disk" means, at any time, the master disk in CD-ROM format for the
Software in object code form provided by Licensor to Distributor from time
to time in accordance with the provisions of this Agreement, which disk
shall be in form and format suitable for duplication by Distributor for
installation on appropriately configured personal computers of Distributor
and reproduction for End Users in accordance with the rights conferred on
Distributor under this Agreement;
"Net Revenue" means the gross revenue received by the Distributor in
respect of its exploitation of the Software less all operating expenses
incurred by the Distributor that are directly attributable to such
exploitation.
"Object Code Licence" has the meaning attributed thereto in the background
to this Agreement;
"Party" means Licensor or Distributor, as applicable, and "Parties" means
both of them;
"Person" means any individual, company, corporation, partnership,
government or government agency, authority or entity, howsoever designated
or constituted;
"Services" means [to be further defined];
"Software" means all versions or releases of software marketed by Licensor
under the "PowerAudit" trade-mark, in object code format, which are
generally distributed or licensed by Licensor from time to time as more
fully described in Schedule "B" attached hereto, including all
Documentation relating thereto.
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SCHEDULE "B"
SOFTWARE
Software means all software (in object code format) and Documentation which
Licensor licenses or distributes under the "PowerAudit" trade-marks from time to
time during the term of this Agreement and including:
THE FIELD CLIENT SOFTWARE
PowerAudit Client Standard
PowerAudit Client Pro
THE SERVER APPLICATIONS
PowerAudit Assignment Creator
PowerAudit Assignment Server
PowerAudit Assignment Reporter
PowerAudit Assignment Super Power Paq
The current suggested retail price for the above Software is stated above in the
description of each item of Software.
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SCHEDULE "C"
FEES
Fees payable by Distributor to Licensor will be:
20% of all gross revenues received by Distributor in respect of Server Licenses,
and
15% of all gross revenues received by Distributor in respect of "Device Module"
fees and will be based on the following pricing models:
1. Licence Fees. Licensor may from time to time set a "suggested retail
price" for software products that it provides to its distributors
generally.
In respect of a software licence for Client Software, Distributor shall
require End-Users to pay a monthly licence fee of $300.00 for each and
every handheld device upon which the End-User loads the Client Software.
In respect of a software licence for Server Software, Distributor shall
require End-Users to pay a monthly licence fee of $500.00 for one Server
Licence for each and every Applied Use of the Software.
2. Training. The fee for training any persons in addition to those
contemplated by the provisions of Section 2.4 of this Agreement shall be
$5000.00 per two-day Sales and Technical Training Session for up to six
persons.
3. Support Fees. Additional access to the IVP Support shall be purchased by
the Distributor in the form of the following packages:
a) 25 hours of Support @ $200.00 per hour
b) 50 hours of Support @ $175.00 per hour
c) 100 hours of Support @ $150.00 per hour
4. Other Service Fees. The Fee for other services will be negotiated at the
time of retainer.
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: November 13, 2000
IVP TECHNOLOGY CORPORATION
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(Registrant)
/s/ John Maxwell
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President
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