EXHIBIT 10.44
JetForm
Streamlining Business Processes(TM)
DISTRIBUTION AGREEMENT
This Distribution Agreement, effective as of August 1st, 1999, is entered into
between JetForm Corporation, a corporation incorporated under the laws of Canada
("JetForm") and Indigo Pacific Pty. Ltd., a corporation incorporated under the
laws of New South Wales, Australia ("Distributor").
DEFINITIONS
1. For the purposes of this Agreement, the following terms have the meanings set
out below:
"Agreement" shall mean this Distribution Agreement.
"Distributor Software" means software excluding all aspects of the JetForm
Software.
"Effective Date" means August 1, 1999.
"End-user" means a person who enters into a license or sub-license to use the
JetForm Software in accordance with JetForm's standard terms and conditions
which are in effect from time to time for that person's internal business
purposes and not for resale, relicensing or redistribution of any kind.
"JTSP" means JetForm Technical Support Program services set out in Schedule A as
in existence from time to time under which JetForm may offer maintenance and
support in relation to certain JetForm Software upon JetForm's standard terms
and conditions which are in effect from time to time for such services.
"JetForm Services" means the JetForm services set out in Schedule A.
"JetForm Software" means, unless otherwise specified in Schedule A, the JetForm
proprietary software listed in JetForm's then current price list, including
related user manuals distributed by JetForm with such software.
"Remarketer" shall mean any person or legal entity who is, subject to JetForm's
prior written consent which shall not be unreasonably withheld or delayed,
licensed by Distributor to sublicense the JetForm Software and JTSP services to
End-Users.
"Territory" means those countries specified in Schedule B.
GRANT OF LICENSE
2. Subject in all cases to Distributor's compliance with all terms and
conditions contained within this Agreement, JetForm grants Distributor a
restricted, non-exclusive, and non-transferable license during the term of this
Agreement:
(a) to market, promote and resell in the Territory licenses to the JetForm
Software only to End-users or Remarketers;
(b) to market, promote and resell in the Territory the JTSP services only to
End-users or Remarketers;
(c) to use the JetForm Software solely for the purposes of demonstration, user
support and training, with the right to sublicense such right to
Remarketers, provided all demonstration copies are removed by Distributor
or Remarketer from the prospective End-user's site on the same day such
copy was installed;
(d) to deliver evaluation copies of the JetForm Software to a prospective
End-user or Remarketer on a evaluation basis provided such prospect has
entered into JetForm's Software Evaluation Agreement which is in effect
from time to time, and provided further that all such evaluation copies are
removed by Distributor upon completion of the evaluation period or
forty-five (45) days from such delivery, whichever occurs first. Any
evaluation copy of the JetForm Software not removed and returned to the
Distributor at the end of such period is deemed to be licensed and license
fees with respect thereto shall be due to JetForm;
(e) notwithstanding the definition of "Territory" herein, to use the "JetForm"
name and trademark only in Australia and Singapore for the purpose of
carrying on its business as permitted under and in compliance with this
Agreement.
3. Distributor shall not have the right to use, sublicense or distribute in any
manner whatsoever the source code pertaining to the JetForm Software.
Distributor shall have no rights in or to the JetForm Software except as
specifically stated herein, and JetForm or its licensors reserves all rights not
expressly granted to Distributor.
4. (a) Distributor shall take measures satisfactory to JetForm to require all
End-users to comply with JetForm's standard terms and conditions which are in
effect from time to time for the applicable JetForm Software and/or JTSP
services. Distributor agrees to obtain from JetForm such standard terms and
conditions on a regular basis.
(b) Distributor shall take measures satisfactory to JetForm to require all
Remarketers to comply with terms and conditions which are consistent with and at
least as protective of JetForm as those contained within this Agreement and
which acknowledge that Distributor shall assume sole responsibility and
liability vis-a-vis the End-user and/or Remarketer.
5. Distributor shall not rent, lease, use, sublicense or distribute in any
manner whatsoever the JetForm Software to anyone for any other purpose except as
expressly set out herein, including without limitation, for use in connection
with a third party outsourcing facility or service, service bureau arrangement,
or permit direct manual or electronic access to anyone who infringes JetForm's
rights therein.
6. Subject to JetForm's prior written consent, which may be withheld in the sole
and absolute discretion of JetForm, Distributor shall not and shall not permit
or assist others to adapt, modify, create derivative works, recast, translate,
shorten, expand, reverse engineer, decompile or in any other manner whatsoever
disassemble or modify the JetForm Software ("Modifications"). Distributor hereby
acknowledges that all Modifications, whether or not authorized, shall be the
sole and exclusive property of JetForm and Distributor shall deliver to JetForm,
all such Modifications and an assignment of all copyright and all other
intellectual property interest in or to such Modifications and waiver of any
moral rights that the Distributor or any other person may have in same.
Distributor will use its best efforts to prevent End-users, Remarketers, and any
other persons or entities from renaming and subsequently redistributing the
JetForm Software.
7. Subject to JetForm's rights to protect the JetForm Software, including
without limitation those rights contained within this Agreement, if Distributor
learns of any breach of a sublicense that could cause any damage or harm to
JetForm or its third party licensors, Distributor shall take prompt,
commercially reasonable corrective action at its expense to remedy the breach
and obtain all other appropriate relief. In addition, Distributor shall
immediately notify JetForm in writing of any breach and any corrective action
taken. The execution of these duties by Distributor shall not preclude JetForm
from also taking corrective action. In addition, Distributor shall, where called
upon by JetForm and at JetForm's sole option, either (i) use its best efforts to
obtain such equitable relief as is necessary under the circumstances as promptly
as is reasonably possible or (ii) assign its rights under the license to JetForm
to permit JetForm to seek such equitable relief as is necessary under the
circumstances.
MARKETING
8. (a) Distributor shall at all times during the term of this Agreement devote
its best efforts to the marketing, promotion and sublicensing of the JetForm
Software and the JTSP services consistent with good business ethics and
reasonable industry standards and in a manner that will reflect favorably on
JetForm and on the goodwill and reputation of JetForm.
(b) Distributor shall comply with JetForm's current marketing guidelines, a copy
of which Distributor acknowledges it has reviewed, as updated from time to time
by JetForm.
(c) Distributor shall: (i) provide pertinent information concerning the JetForm
Software and the JTSP services to prospective End-users and/or Remarketers; (ii)
notify JetForm of and explain the circumstances surrounding any complaints
received by the Distributor concerning the JetForm Software and/or the JTSP
services; (iii) remain informed, knowledgeable and current concerning the
functions, specifications, details and advantages of the JetForm Software and
the JTSP services; (iv) not make any misleading and/or deceptive representations
with regard to JetForm and/or the JetForm Software and/or the JTSP services; (v)
not knowingly publish or employ, or cooperate in the publication or employment
of, any misleading and/or deceptive advertising material(s) with regard to
JetForm and/or the JetForm Software and/or the JTSP services; and (vi) not make
any representations, warranties or guarantees whatsoever to End-users and/or
Remarketers (prospective or otherwise), and/or any third party with respect to
the specifications, features and/or capabilities of the JetForm Software which
are inconsistent in any manner whatsoever with the published literature or
documentation distributed by JetForm with the JetForm Software.
DELIVERY
9. JetForm will deliver to Distributor the JetForm Software as ordered by
Distributor, subject to availability, within a reasonable period of time after
receipt of orders.
MAINTENANCE AND SUPPORT
10. (a) Distributor shall notify all End-users and/or Remarketers of the
availability of the JTSP services and the JetForm Services. Notwithstanding the
foregoing or anything else contained within this Agreement, Distributor shall
provide and be solely responsible for all End-user and/or Remarketer first-line
technical support including without limitation all technical support via
telephone, facsimile, e-mail or any other mode of communication from an End-user
and/or Remarketer respecting the JetForm Software. JetForm shall have no
responsibility, obligation or liability whatsoever for any Distributor Software.
Distributor shall reimburse JetForm for any travel, living or other reasonable
out-of-pocket expenses incurred by JetForm in connection with provision of any
technical support by JetForm. JetForm has the right to discontinue the
manufacture of, and/or support for, the JetForm Software at any time in its sole
discretion.
(b) Distributor shall designate one (1) employee who will function as the
technical support liaison to JetForm. JetForm shall have the right to require
Distributor (and JetForm shall have the right to require Distributor to call
upon any Remarketer) to obtain additional education and training if necessary in
JetForm's reasonable judgment to enable Distributor (or Remarketer, as
applicable) to properly discharge its duties under this Agreement.
PAYMENTS
11. Distributor agrees to pay to JetForm the fees as set forth in Schedule B.
Distributor shall pay any applicable costs of shipment of the JetForm Software
from JetForm to Distributor. All amounts for fees are payable monthly in arrears
within ninety (90) days of the end of each month in which sales occur, with the
month commencing August 1, 1999. Any amounts not paid when due hereunder shall
bear interest at the rate of 1.5% per month (which is equivalent to 18% per
annum) or the highest legal rate applicable, whichever is lower, until the
overdue amount, plus applicable interest is paid in full. Credit limits, if any,
shall be at JetForm's sole discretion from time to time.
12. Distributor shall be responsible for the payment of all duties, taxes, or
amounts due in lieu thereof, related in any way to performance under this
Agreement, exclusive only of taxes based on JetForm's net income. In the event
Distributor is required to withhold tax from any payments due to JetForm
hereunder, Distributor shall gross up any payments to be made to JetForm to
ensure that the full amount of fees due hereunder is received by JetForm.
Distributor shall bear the cost and risk of shipping and handling from JetForm's
location to the final destination, and Distributor shall reimburse JetForm for
any such costs or risks incurred by JetForm.
REPORTS AND AUDIT
13. Distributor agrees to maintain complete and accurate records (in accordance
with generally accepted accounting principles applicable in the jurisdiction set
out herein) relating to sublicensing by Distributor of the JetForm Software and
the JTSP services and to submit quarterly forecasts within thirty (30) days
prior to each quarter end as to the quantities of the JetForm Software and the
JTSP services which Distributor reasonably anticipates will be sublicensed or
otherwise provided by Distributor to End-users and Remarketers under this
Agreement in the ensuing quarter. JetForm shall have the right, annually, to
appoint an independent third party to examine and audit Distributor's premises
to ensure compliance with the terms of this Agreement. Any such audit shall be
at the expense of JetForm unless the audit reveals non-compliance by Distributor
with the terms of this Agreement, in which case the audit shall be at the
expense of Distributor.
TRADEMARKS AND COPYRIGHT NOTICE
14. Distributor disclaims any rights or interest in JetForm's intellectual
property, including without limitation the JetForm Software and JetForm
trademarks. Distributor shall not remove any JetForm copyright notices or other
designations that appear or may appear in or on the JetForm Software or any
related documentation, software, advertising, displays, media or designations.
All copies of the JetForm Software in whatever form must contain fully
reproduced copyright notices, restrictive rights legends, proprietary notices
and other notices as contained in the JetForm Software and as shown on the media
and packaging.
15. JetForm hereby grants Distributor a restricted, non-exclusive, and
non-transferable license during the term of this Agreement to reproduce the
JetForm trade names and trademarks identified in Schedule C, to be used in
accordance with the terms of this Agreement (which includes those contained in
Schedule C), and with appropriate ownership attributions as set out in Schedule
C.
16. Distributor agrees to obtain JetForm approval regarding the quality and
standards of all use and materials on which a JetForm trademark or tradename or
other designation is to be used, and JetForm may terminate this Agreement for
failure to do so. Distributor will submit all such materials to JetForm for
approval in advance.
17. Distributor may only market the JetForm Software under the name specified by
JetForm. Distributor shall refer to JetForm and the JetForm Software in any
advertising for Distributor Software.
OWNERSHIP AND CONFIDENTIALITY
18. (a) Distributor hereby acknowledges and agrees that all right, title and
interest in and to the JetForm Software, in whole or in part, in any form, and
including all patent, copyright, trademark, trade secret and all other
intellectual and industrial property rights in such JetForm Software and the
structure, sequence and organization of same, shall belong to JetForm or its
licensors and that Distributor's sole rights thereto shall be only those rights
granted by JetForm pursuant to this Agreement. Distributor acknowledges that
JetForm has and reserves the exclusive, worldwide right in perpetuity to protect
the JetForm Software.
(b) The JetForm Software includes English language and other language JetForm
Software to the extent JetForm makes such JetForm Software commercially
available. Distributor shall not translate or have translated the JetForm
Software except with JetForm's prior written consent. JetForm shall have the
right to review and to approve the quality and standard of such translated
versions. The ownership provisions contained in this Agreement in respect of
JetForm Software shall apply to the JetForm Software as translated. After
receiving JetForm's prior written consent provided for above, Distributor will
have the right to distribute such translated versions in accordance with this
Agreement, and Distributor will be reimbursed in the event JetForm desires to
distribute such translated versions. All copyright and any other proprietary
notices in a translated version shall be approved by JetForm.
19. (a) All documentation and information which is designated as confidential or
proprietary or that a reasonable person would consider from the nature of the
information and circumstances of disclosure is confidential or proprietary which
is or has been supplied by JetForm to Distributor in connection with this
Agreement ("JetForm Confidential Information") is proprietary to JetForm and
shall be held in trust and confidence for JetForm by Distributor, its employees,
agents or contractors and shall not be disclosed by Distributor or used for any
purpose other than as permitted under this Agreement, without JetForm's prior
written consent. Distributor agrees to use a reasonable degree of care (which,
in any case, will not be less than the degree of care it uses with respect to
its own information of like nature) to prevent disclosure of the JetForm
Confidential Information. JetForm Confidential Information will be returned or
destroyed by Distributor upon request by JetForm at any time, and a senior
officer of Distributor shall certify, by way of affidavit or statutory
declaration, on behalf of Distributor that all such JetForm Confidential
Information has been returned or destroyed, as applicable. This section does not
apply to Confidential Information which:
(i) is or becomes public other than through a breach of this Agreement;
(ii) is known to Distributor prior to the date of this Agreement and with
respect to which Distributor does not have any obligation of
confidentiality;
(iii) is independently developed by Distributor without any reference to
JetForm Confidential Information;
(iv) is disclosed, without obligation of confidentiality, to Distributor
by a person or entity not party to this Agreement and who is
entitled to disclose such information without breaching an
obligation of confidentiality; or
(v) is required to be disclosed by law, whether under an order of a
court or government tribunal or other legal process. Distributor
shall require each of its employees, contractors, agents,
Remarketers, and End-users having access to JetForm Confidential
Information to comply with the above terms.
(b) In recognition of the unique and proprietary nature of the JetForm
Confidential Information, it is agreed that JetForm's remedies for a breach by
Distributor of its obligations under this section shall be inadequate and
JetForm shall, in the event of such breach, be entitled to equitable relief,
including without limitation, injunctive relief and specific performance, in
addition to any other remedies provided hereunder or available at law or equity.
WARRANTIES
20. JetForm provides to Distributor only the limited warranties provided in the
JetForm End-user license for the applicable JetForm Software in effect from time
to time. In exercising its rights under this Agreement, Distributor will not
give nor make any warranties or representations on behalf of JetForm as to
quality, merchantability, fitness for a particular use or purpose or any other
features of the JetForm Software, except for the warranties set out in the
preceding sentence.
21. EXCEPT AS EXPRESSLY STATED ABOVE, THERE ARE NO WARRANTIES OR CONDITIONS,
EXPRESS OR IMPLIED, BY OPERATION OF LAW, STATUTE OR OTHERWISE, WITH RESPECT TO
THE JETFORM SOFTWARE OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER. JETFORM
DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING
BUT NOT LIMITED TO STATEMENTS REGARDING PERFORMANCE OF THE JETFORM SOFTWARE,
WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE BINDING ON JETFORM. SUBJECT
TO THE LIMITED WARRANTIES PROVIDED IN THE JETFORM END-USER LICENSE FOR THE
APPLICABLE JETFORM SOFTWARE IN EFFECT FROM TIME TO TIME, JETFORM WILL NOT BE
LIABLE FOR ANY BUG, ERROR, OMISSION, DEFECT, DEFICIENCY, OR NONCONFORMITY IN ANY
SOFTWARE INCLUDING THE JETFORM SOFTWARE. Distributor is solely responsible for
the selection of the JETFORM Software, its ability to achieve the results
intended, installation and maintenance and support of the JETFORM Software and
the results obtained by Distributor, REMARKETERS AND any End-users from USE OF
the JETFORM Software OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER.
LIMITATION OF LIABILITY
22. IN THE EVENT OF ANY CLAIM CONCERNING PERFORMANCE OR NONPERFORMANCE OF
JETFORM OR ANY CLAIM FOR BREACH OR DEFAULT BY JETFORM, DISTRIBUTOR'S EXCLUSIVE
REMEDY SHALL BE THE RECOVERY OF ITS DIRECT DAMAGES, BUT ONLY TO THE LIMIT SET
FORTH IN THIS AGREEMENT. THIS LIMITATION SHALL APPLY WHETHER OR NOT THE ALLEGED
BREACH BY JETFORM IS A BREACH OF CONDITION, OR FUNDAMENTAL TERM, OR A
FUNDAMENTAL BREACH. IN NO EVENT WILL JETFORM BE LIABLE FOR ANY INCIDENTAL,
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING
FROM LOSS OF USE, DATA OR PROFITS, DOWNTIME, GOODWILL, DAMAGE TO OR REPLACEMENT
OF EQUIPMENT OR PROPERTY, ANY COSTS OF RECOVERING, REPROGRAMMING, OR REPRODUCING
ANY PROGRAM OR DATA USED IN CONJUNCTION WITH JETFORM SOFTWARE, THE USE OR
PERFORMANCE OF THE JETFORM SOFTWARE OR OTHER JETFORM PROVIDED SERVICES OR
MATERIALS, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING BUT NOT LIMITED
TO NEGLIGENCE) OR OTHERWISE. THIS LIMITATION SHALL BE INTERPRETED TO APPLY TO
JETFORM AND ITS LICENSORS.
23. JETFORM'S AGGREGATE LIABILITY IN ANY CONNECTION WITH THIS AGREEMENT WHETHER
FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE SHALL IN NO
CIRCUMSTANCES EXCEED THE AMOUNTS PAID BY DISTRIBUTOR TO JETFORM UNDER THIS
AGREEMENT. NOTHING IN THIS AGREEMENT SHALL RESTRICT JETFORM'S LIABILITY IN a
manner which is expressly prohibited by aPPLICABLE statute or regulation.
24. Distributor hereby represents, warrants and covenants to JetForm the
following:
(a) Distributor has full power and authority to enter into this Agreement and to
perform each and every covenant and agreement herein contained;
(b) this Agreement has been duly authorized, executed and delivered by
Distributor and constitutes a valid, binding and legally enforceable agreement
of Distributor;
(c) the execution and delivery of this Agreement and the performance of the
covenants and agreements herein contained are not, in any manner or to any
extent, limited or restricted by, and are not in conflict with, any commercial
arrangements, obligations, contract, agreement or other instrument to which
Distributor is either bound or subject; and
(d) the performance of this Agreement by Distributor shall not infringe,
contravene, breach, interfere with, or harm, any rights of any other person or
entity whatsoever, including without limitation any intellectual property,
moral, confidentiality, copyright, trademark or patent rights of any nature.
INDEMNIFICATION
25. Distributor agrees to indemnify and save JetForm harmless from and against
any and all claims, demands, costs and liabilities (including without limitation
reasonable legal fees) of any kind whatsoever, arising directly or indirectly
out of the performance of software not supplied by JetForm, provision of
services and/or maintenance and support by Distributor in relation to the
JetForm Software or software not supplied by JetForm, Distributor's performance
under this Agreement (including, without limitation, any breach of
representations and warranties by Distributor to JetForm) or claims by
Distributor's End-users, Remarketers or any other persons or entities
whatsoever. Upon written notice of any action against JetForm alleging any of
the indemnified matters outlined in this section, Distributor will defend that
action at its expense and pay the costs (including without limitation reasonable
legal fees) and damages and amounts awarded (or settled, as the case may be)
against JetForm in the action, provided that Distributor shall consult with and
allow JetForm to participate in any defense and settlement negotiations.
26. If notified promptly in writing of any action or claim (and all prior
related claims) brought against Distributor alleging that Distributor's
distribution of the JetForm Software under this Agreement infringes any
registered U.S. or Canadian patent or copyright, JetForm will defend that action
at its expense and will pay the costs (including without limitation reasonable
legal fees) and damages awarded (or settled, as the case may be) against
Distributor in the action, provided that:
(i) JetForm shall have sole control of the defense of any such action and all
negotiations for its settlement or compromise;
(ii) Distributor cooperates fully with JetForm in its defense of the action;
and
(iii) JetForm shall have no liability whatsoever if the action results from the
use of the JetForm Software for purposes or in an environment for which
it was not designed, from modification of the JetForm Software by anyone
other than JetForm, or from the use of the JetForm Software in
combination with software or other products not supplied by JetForm.
JetForm, at its own expense, may, instead of defending such action or claim,
procure for Distributor the right to continue the distribution of the JetForm
Software or replace or modify the JetForm Software so that it becomes
non-infringing.
TERM AND TERMINATION
27. This Agreement is in effect for five (5) years from the Effective Date,
unless earlier terminated as permitted under this Agreement.
28. (I) This Agreement will terminate in the event of any of the following:
(a) thirty (30) days after written notice by JetForm to
Distributor if Distributor has not paid to JetForm the amount
of the fees as specified in Schedule B in accordance with the
terms of this Agreement;
(b) on the thirtieth (30th) day after one party gives the other
written notice of a breach by the other of any term or
condition of this Agreement unless the breach is cured before
that day;
(c) except as otherwise provided for in section 36 hereof, an
amalgamation, acquisition or merger of Distributor with any
person or entity who is not a party to this Agreement or
assignment of this Agreement by Distributor, unless consented
to in writing by JetForm;
(d) written notice of termination by one party after a receiver
has been appointed in respect of the whole or a substantial
part of the other's assets or a petition in bankruptcy or for
liquidation is filed by or against that other, or
(e) written notice of termination by JetForm if Distributor
becomes owned or controlled by any government or state, or
government or state agency;
(f) written notice of termination by JetForm if currency
repatriation provisions or other currency restrictions are
imposed by any government body which prevent or unduly
restrict the ability of Distributor to make any payments to
JetForm required hereunder;
(g) written notice of termination by JetForm if Distributor is
convicted of any criminal or quasi-criminal offense; or
(h) at JetForm's sole discretion, JetForm may terminate the
Agreement sixty (60) days after written notice by JetForm to
Distributor if Distributor fails to meet any of the annual
revenue quotas as specified in Schedule B.
(II) In addition, where, in JetForm's sole determination, Hugh Millikin is no
longer actively and personally involved in the business operations of the
Distributor as contemplated under this Agreement, then any and all discretionary
and volume discounts available to a Vice-President of Sales as provided for in
Exhibit B hereto shall terminate with immediate effect.
(III) In addition, JetForm may terminate the license granted to Distributor
under section 2(e) of this Agreement in the event of any of the following:
(a) upon written notice by JetForm to Distributor if, in JetForm's
sole determination, Hugh Millikin is no longer actively and
personally involved in the business operations of the
Distributor as contemplated under this Agreement;
(b) sixty (60) days after written notice by JetForm to Distributor
if Distributor fails to meet any of the annual revenue quotas
as specified in Schedule B; or
(c) ninety (90) days after written notice by JetForm to Distributor
terminating for convenience, and where JetForm so terminates
such license:
(i) in the first or second year of this Agreement, JetForm
shall pay to Distributor an amount equal to the greater
of (A) $225,000.00; and (B) $100,00.00 plus the net
annual revenue payable to JetForm under this Agreement
during the one (1) year period immediately preceding the
date of such written notice from JetForm multiplied by
1.2 less $1,500,000.00;
(ii) in the third, fourth or fifth year of this Agreement,
JetForm shall pay to Distributor an amount equal to
$100,000.00 plus the net annual revenue payable to
JetForm under this Agreement during the one (1) year
period immediately preceding the date of such written
notice from JetForm multiplied by 1.2 less
$1,500,000.00;
(iii) JetForm shall pay Distributor any such amount payable to
Distributor under this subsection of the Agreement
within ninety (90) days of the effective date of such
termination by JetForm.
29. In the event of termination or expiration of this Agreement:
(a) Distributor shall make all payments due hereunder within thirty (30) days
of such termination or expiration;
(b) All rights granted under this Agreement including without limitation those
respecting use, marketing, promotion, sublicensing and distribution of the
JetForm Software and the JTSP services, and use of the JetForm trademarks
and trade names shall immediately cease. Distributor shall promptly return
to JetForm or destroy all copies of the JetForm Software and JetForm
Confidential Information in its possession or under its control and provide
evidence satisfactory to JetForm that all such copies have been returned or
destroyed;
(c) Distributor shall refer all inquiries regarding JetForm or the JetForm
Software to JetForm and give JetForm notice thereof; and
(d) Distributor shall deliver a list of all End-users and/or Remarketers to
JetForm within thirty (30) days of termination or expiration of this
Agreement.
30. Termination hereunder shall be without prejudice to any other right or
remedy to which either party may be entitled hereunder in law. Distributor
acknowledges and agrees that it has no expectation that its business
relationship with JetForm will continue for any minimum period of years, or that
Distributor shall obtain any anticipated amount of profits by virtue of this
Agreement. The parties agree that the termination provisions herein, in terms of
both notice and default events are reasonable and agree not to contest same by
way of wrongful termination proceedings or otherwise. JetForm shall not be
liable, by reason of any termination of this Agreement, for compensation,
reimbursement or damages on account of the loss of prospective profits on
anticipated sales or on account of expenditures, investments, leases or
commitments whatsoever in connection with the business or goodwill of
Distributor.
GENERAL
31. Neither party shall be liable for failure to fulfill obligations hereunder
due to causes beyond that party's control.
32. Any notice hereunder shall be in writing, and shall be sent by return
receipt requested registered mail, confirmed facsimile or confirmed personal
delivery to recipient's address as set out below unless changed by notice under
this section:
If to JetForm: 560 Rochester Street
Ottawa, ON K1S 5K2
Canada
Attention: Vice President, Finance and
Chief Financial Officer
If to Distributor: Suite 1, Level 17
275 Alfred Street, North Sydney
NSW 2060
Australia
33. Any provision of this Agreement found to be illegal or unenforceable shall
be deemed severed, and the balance of this Agreement shall remain in full force.
34. The parties to this Agreement are independent contractors. No agency,
partnership, joint venture or similar relationship is established hereby.
Neither party has the authority to bind the other or incur any obligation on
behalf of the other. JetForm is intended by the parties hereto to be a third
party beneficiary of any and all sublicense agreements entered into according to
this Agreement by Distributor or Remarketers. JetForm shall have, and such
sublicense agreements shall likewise indicate, the right to enforce such
sublicense agreements as if JetForm were a party thereto, including without
limitation having powers of enforcement in respect of JetForm copyrights,
trademarks and all other JetForm intellectual property and JetForm Confidential
Information.
35. Neither party's right to require performance of the other party's
obligations hereunder shall be affected by any previous waiver, forbearance or
course of dealing, unless or only to the extent of any waiver given in writing.
36. Distributor shall not assign or transfer this Agreement without JetForm's
prior written consent and any attempt to do so shall be void. Notwithstanding
the foregoing, Distributor may assign this Agreement to SMS Consulting Group
Limited without JetForm's prior written consent subject to all terms and
conditions of this Agreement including without limitation those contained in
sections 28(II) and 28(III)(a). This Agreement shall survive any change of
control of JetForm whether by way of shares, merger or sale of all or
substantially all of the assets of JetForm. This Agreement will enure to the
benefit of the successors and permitted assigns of Distributor and JetForm.
37. The laws of Ontario, Canada shall apply without giving effect to the
principles of conflicts of law, and excluding that body of law applicable to
choice of law and excluding the United Nations Convention on contracts for the
International Sale of Goods. Distributor irrevocably agrees that the courts of
such jurisdiction constitute a convenient forum for any such litigation and
attorns and submits to the exclusive jurisdiction of such courts. The parties
waive trial by jury.
38. Distributor hereby agrees to comply with all applicable laws, regulations
and government orders. Distributor warrants it will do all things necessary to
comply with all applicable export laws and regulations as they apply to the
subject matter of this Agreement. Distributor shall be responsible for any visas
or permits necessary in order to allow JetForm personnel to enter the Territory
or provide services to Distributor or its customers in the Territory, if
requested by Distributor.
39. Distributor consents to publication of its name by JetForm as a distributor
of the JetForm Software and JTSP services. The details of this Agreement shall
not be disclosed by Distributor to any third party, other than employees and
advisors of JetForm or Distributor on a need to know basis, without the prior
written consent of JetForm unless required by law, and no announcement or
publication concerning this transaction shall be made by Distributor without
JetForm's prior written consent.
40. The parties agree that the provisions of Articles 3, 5, 6, 11, 12, 13, 14,
18(a), 19, 20, 21, 22, 23, 24, 25, 29 and following of this Agreement will
survive the termination or expiration of this Agreement until the parties agree
to a release of such obligations.
41. This Agreement and the attached schedules which are incorporated by
reference constitute the entire agreement between the parties concerning the
subject matter hereof and supersedes all oral or written prior statements,
representations, discussions, negotiations and agreements. This Agreement may be
amended only in writing signed by both parties. No terms and conditions or
stipulations written on Distributor's purchase order(s) or similar document(s)
will affect this Agreement even if such order(s) or document(s) is accepted by
the receiving party.
42. This Agreement may be executed and delivered by facsimile and in
counterparts, and shall be considered as original and whole if so executed and
delivered.
43. In this Agreement words importing a singular number only shall include the
plural and vice versa. The division of this Agreement into Articles and sections
and the insertion of headings are for convenient reference only, and shall
affect neither the construction nor the interpretation of this Agreement. The
terms, "hereof", "hereunder" and similar expressions refer to this Agreement and
not to any particular portion hereof and include any agreement supplemental
hereto.
44. Unless otherwise stipulated, all dollar amounts are in Australian dollars.
IN WITNESS whereof the parties have executed this Agreement.
<TABLE>
<S> <C>
JetForm Corporation Indigo Pacific Pty. Ltd.
By: By:
----------------------------------------- -----------------------------------------
name: name:
--------------------------------------- ---------------------------------------
title: title:
-------------------------------------- --------------------------------------
date: date:
--------------------------------------- ---------------------------------------
</TABLE>
<PAGE>
SCHEDULE A
JetForm Services, JTSP services and Unauthorized Products
JETFORM Services
Business Analysis
Workflow Planning
Product Integration
Application Development
Forms Design
Training (maybe delivered by third party)
Customer Support
JETFORM TECHNICAL SUPPORT PROGRAM (JTSP)
Event-based
Standard
Premium
Platinum
Custom
JETFORM PRODUCTS NOT AUTHORIZED TO SELL
N/A
<PAGE>
SCHEDULE B
Fees, Quota and Territory
FEES:
JetForm Software and JTSP services: Distributor shall pay JetForm a royalty fee
equal to 50% of the net resale price for all JetForm Software and JTSP services
sold to End-Users and Remarketers, subject to the discretionary and volume
discounts available to a Vice-President of Sales, as published from time to time
by JetForm.
JetForm Services: Project specific - to be mutually agreed between the parties.
ANNUAL Revenue Quota:
Distributor shall achieve and pay to JetForm the following net annual revenue
quotas:
1) $1,000,000.00 in the first year of the Agreement (August 1, 1999 to July
31, 2000);
2) $1,200,000.00 in the second year of the Agreement (August 1, 2000 to July
31, 2001);
3) $1,440,000.00 in the third year of the Agreement (August 1, 2001 to July
31, 2002);
4) $1,728,000.00 in the fourth year of the Agreement (August 1, 2002 to July
31, 2003); and
5) $2,070,000.00 in the fifth year of the Agreement (August 1, 2003 to July
31, 2004).
TERRITORY:
Country
Australia
Hong Kong
India
Indonesia
Malaysia
New Zealand
Philippines
Singapore
South Korea
Taiwan
Thailand
Vietnam
All other countries in the Asia-Pacific region EXCLUDING Japan and
Mainland China ("Other Countries"). JetForm shall have the right to
remove from the definition of Territory any country falling within the
definition of Other Countries upon ninety (90) days prior written notice
to Distributor.
<PAGE>
SCHEDULE C
JetForm Trademarks and Trade names
A. JetForm is a registered trademark of JetForm Corporation. All JetForm product
names and certain taglines are either registered trademarks or trademarks of
JetForm Corporation.
B. Distributor shall clearly acknowledge in its use or display of any of the
JetForm trademarks that Distributor is a licensed user of the JetForm
trademarks.
C. Distributor shall prominently display the JetForm trademarks and/or trade
names in relation to the JetForm Software and JTSP services on any advertising,
marketing, promotional, technical or other materials prepared or distributed by
Distributor subject to the following limitations:
(i) Trademarks shall be clearly identified where they first appear as a
trademark of JetForm Corporation by using the (TM) symbol in the case of
trademarks, the (R) symbol in the case of registered trademarks, and by use of
the following script: "JetForm is a registered trademark of JetForm
Corporation.", or "[name of applicable JetForm registered trademark] is a
registered trademark of JetForm Corporation.", or "JetForm [name of applicable
JetForm trademark] is a trademark of JetForm Corporation.", as applicable.
Distributor shall contact JetForm to obtain JetForm's trademark usage guidelines
which contain a full list of JetForm registered trademarks and trademarks.
Distributor may use JetForm's name and logo in its advertising, catalogs,
exhibits, public relations materials and documents covering the JetForm Software
and JTSP services, provided that all such uses shall be exact copies of
JetForm's name and logo in colour, style and other details and will be subject
to JetForm's right of prior review and approval. Distributor shall contact
JetForm to obtain JetForm's trademark usage guidelines which contain JetForm's
then current requirements related to the use of JetForm trademarks and logos.
(ii) Distributor shall follow JetForm's instructions as given to Distributor
from time to time as to the use of each JetForm trademark.
(iii) Prior to any proposed use of any JetForm trademark, Distributor shall give
JetForm written notice of exactly how Distributor proposes to use the trademark,
including drawings of all advertising copy. Such written notice shall be
delivered to JetForm at least thirty (30) days before public distribution, and
Distributor shall make whatever changes JetForm requires in the use of the
trademark before making any public distribution.
(iv) JetForm retains the right to specify and approve the quality and standards
of all materials and products on which the JetForm trademarks and/or trade names
are displayed and to inspect from time to time samples of such materials,
products and packaging used by Distributor or Remarketers. Failure of
Distributor to adhere to such standards of quality shall be grounds for JetForm
to terminate Distributor's rights to use such trademarks and/or trade names
and/or the JetForm Software or to terminate this Agreement.
(v) In any use of a JetForm trademark, such trademark shall not be combined with
any other trademark, name, appellation, or marking unless JetForm specifically
consents in writing to such combination.
(vi) JetForm may discontinue the use of any JetForm trademark or trade name at
any time and Distributor shall thereupon cease to use such trademark or trade
name.
(vii) Distributor agrees not to alter in any manner whatsoever any of the
JetForm trademarks or trade names.
(viii) Distributor shall use its best efforts to ensure compliance with these
terms by all of its Remarketers.
D. Distributor and its Remarketers shall display the JetForm trademarks and/or
trade names on the JetForm Software and on all of its materials, promotions and
dealings in connection therewith and clearly acknowledge that Distributor or its
Remarketer, as applicable, is a licensed user of the JetForm trademarks and/or
trade names.
E. Distributor agrees to report to JetForm all infringement or improper or
unauthorized use of any of the JetForm trademarks and/or trade names and to
assist JetForm in protecting such items within the Territory, however
Distributor acknowledges and agrees that only JetForm shall have the right to
bring any action in connection with such infringement.
F. Distributor further agrees to cooperate and execute all documents and further
assurances as required by JetForm to register or protect JetForm's rights in
such JetForm trademarks and/or trade names.
G. Distributor acknowledges and agrees that: (a) JetForm retains all right,
title and interest in and to the JetForm trademarks and/or trade names, and all
use thereof by the Distributor or its Remarketers shall enure to the benefit of
JetForm; and (b) neither Distributor nor End-users or Remarketers will acquire
any ownership interest in any such JetForm trademarks and/or trade names by
virtue of this Agreement, the distribution or sublicense of the JetForm Software
and/or JTSP services or any relationship with JetForm.
H. Distributor shall not at any time during or after the term of this Agreement
assert any claim or interest in or to anything which may adversely affect the
validity or enforceability of any JetForm trademark or trade name. Distributor
shall not, and no End-user nor Remarketer shall, register, seek to register, or
cause to be registered any of JetForm's trademarks or trade names without
JetForm's prior written consent, which may be withheld by JetForm in its sole
and absolute discretion. Distributor shall not display any of JetForm's
trademarks or trade names without mentioning in the same display Distributor's
trademark or trade name.
