Exhibit
10.39
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made, entered into, and effective as of May 19, 2019 (the “Effective Date”),
by and between Cipherloc Corporation a Texas Corporation, with its principal place of business located at 825 Main Street, Suite
100 Buda, TX 78610 (“Company”), and Gino J. Mauriello, CPA an individual located at 6469 Almaden Expressway, Suite
80-129, San Jose, CA 95120, (“Employee”) (individually, a “Party”; collectively, the “Parties”).
RECITALS
WHEREAS,
Company desires to employ Employee, and Employee desires to be employed as Chief Financial Officer, and;
WHEREAS,
Company desires to have an employment agreement with Employee as its Chief Financial Officer, subject to the terms and conditions
of this Agreement, and;
NOW,
THEREFORE,
in consideration of the mutual covenants and conditions contained herein, the Parties hereto hereby agree as follows:
AGREEMENT
1.
Term of Employment.
a.
Specified Period.
Company hereby employs Employee and Employee accepts employment with Company for a period of three years
beginning on May 19, 2019 and terminating on May 17, 2022.
b.
Renewal.
This Agreement is subject to automatic renewal upon the same terms and conditions as set forth herein, unless
either this Agreement is terminated pursuant to Section 8 hereof or a Party gives written notice to the other Party of its intent
to terminate, at least 30 days prior to expiration of the then-current term.
c.
Employment Term Defined.
“Employment term” refers to the entire period of employment of Employee by Company,
whether for the period provided above, or whether terminated earlier as hereinafter provided or extended by mutual agreement between
Company and Employee.
2.
Duties and Obligations of Employee
.
Employee
shall serve as Chief Financial Officer and shall report to the President. Employee may work from his home office. Employee shall
faithfully and diligently perform all services and duties as may be requested and required of Employee by the President. Employee
shall devote such time and attention on an exclusive basis to oversee the Company’s Financial and Accounting operations.
Employee at all times during the employment term shall strictly adhere to and obey all policies, rules and regulations established
from time to time governing the conduct of employees of the Company.
3.
Exclusivity, Non-Disclosure
.
a.
Devotion to Company Business.
Employee agrees to perform Employee’s services efficiently and to the best of Employee’s
ability. Employee agrees throughout the term of this Agreement to devote his time, energy and skill to the business of the Company
and to the promotion of the best interests of the Company.
b.
Trade Secrets.
Employee agrees that he shall not at any time, either during or subsequent to his employment term, unless
expressly consented to in writing by Company, either directly or indirectly use or disclose to any person or entity any confidential
information of any kind, nature or description concerning any matters affecting or relating to the business of Company, including,
but not limited to, information concerning the customers of Company, Company’s marketing methods, compensation paid to employees,
independent contractors or suppliers and other terms of their employment or contractual relationships, financial and business
records, know-how, or any other information concerning the business of Company, its manner of operations, or other data of any
kind, nature or description. Employee agrees that the above information and items are important, material and confidential trade
secrets and these affect the successful conduct of Company’s business and its goodwill.
c.
Inventions and Patents
. Employee agrees to disclose and to assign immediately to the Company, or to any persons designated
by the Company, or at the Company’s option, any of the Company’s successors or assigns, all inventions or improvements
which are or were made, conceived or reduced to practice by Employee, whether acting independently or with others, during the
course of Employee’s employment with the Company, and which (i) were made, conceived of or first reduced to practice in
the performance of any duties assigned to or undertaken by the Employee as an employee of the Company; or (ii) were made, conceived
of or first reduced to practice with the use of the Company’s time, material, facilities or funds.
d.
Third Party Information.
Employee recognizes that the Company has received and, in the future, will receive from third
parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality
of such information and to use it only for certain limited purposes. Employee agrees to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary
in carrying out Employee’s work for the Company consistent with the Company’s agreement with such third party.
e.
Conflicting Employment.
Employee agrees that, during the term of his employment with the Company, Employee will devote
his full time and efforts to the Company, and he will not engage in any other employment, occupation or consulting activity that
conflict with Employee’s obligations to the Company without written consent of the Company.
f.
Solicitation of Employees.
By executing this Employment Agreement Employee agrees that for a period of eighteen (18) months
immediately following the termination of Employee’s relationship with the Company for any reason, whether with or without
good cause or for any or no cause, at the option either of the Company or Employee, with or without notice, Employee will not
hire any employees of the Company and will not, either directly or indirectly, solicit, induce, recruit or encourage any of the
Company’s employees to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage
or take away employees of the Company, either for Employee or for any other person or entity.
g.
Noncompetition Covenants
. Employee further agrees that during the period of employment by the Company and for a period
of two (2) years thereafter, regardless of the reason for the termination of such employment, Employee will not, directly or indirectly,
whether alone or as a partner, joint venture, officer, director, consultant, employee, independent contractor or stockholder of
any company or business organization, engage in any business activity and/or accept employment with any person or entity, which
is or may be directly or indirectly in competition with the products or services being marketed, promoted, distributed, developed,
planned, sold or otherwise provided by the Company. The ownership by Employee of not more than one percent of the shares of capital
stock of any corporation having a class of equity securities traded on a national securities exchange shall not be deemed, in
and of itself, to violate this section.
4.
Compensation
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a.
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Salary.
Subject to the termination of this Agreement
as provided herein, Company shall compensate Employee for his services hereunder at an annual salary of $250,000.00 and payable
in accordance with the Company’s practices, less normal payroll deductions, and prorated for the actual employment term.
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b.
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Salary Increases; Bonuses.
Employee shall receive
such annual increases in salary and such additional compensation as may be determined by the Board of Directors of the Company
in its sole discretion. Such salary increases and/or additional compensation shall be paid to Employee on the anniversary date
of this Agreement during the Employment Term, and at such other times as may be determined by the Board of Directors. Bonuses
shall not exceed $50,000.
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c.
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Stock
. Common stock shall be granted to Employee
pursuant to the 2019 Stock Option/Stock Issuance Plan and the value of the common stock granted/issued shall not exceed the Employee’s
annual Salary.
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5.
Employee Incentives.
Employee shall be entitled to receive incentives including profit sharing, and any other incentive
plans that the Company has or will make available to similarly situated employees.
6.
Employee Benefits.
a.
Vacation
. Employee will be entitled, during each employment year, to 120 hours of paid time off (PTO) for vacation and
sick leave up to a maximum number of hours equivalent to one year of hours available for accrual (120 hours). Employee may be
absent from his employment for PTO only at such times as may be convenient to Company and Employee. Once the maximum number of
hours is reached, all further accruals will cease. PTO accruals will recommence after time off is taken and the balance of accrued
hours is less than the maximum number of hours.
b.
Medical Coverage.
Company agrees to include Employee in the coverage of its medical and dental insurance plan.
c.
Plan Participation
. Employee shall be entitled to participate in or to receive benefits under all of Company’s employee
benefit plans made available by Company or in the future to similarly situated employees, subject to the terms, conditions and
overall administration of such plans, including but not limited to 401(k) plans, IRA plans, E.R.I.S.A Plans, any other retirement
or benefit plans that the Company has made available to similarly situated employees.
7.
Business Expenses.
Employee
will be required to incur travel, meals, entertainment and other business expenses on behalf of the Company in the performance
of Employee’s duties hereunder. Company will reimburse Employee for all such reasonable business expenses incurred by Employee
in connection with Company’s business upon presentation of receipts or other acceptable documentation of the expenditures.
In compensating Employee for expenses, the ordinary and usual business guidelines and documentation requirements shall be adhered
to by Company and Employee.
8.
Termination of Employment.
(1)
Termination for Cause
. For purposes of this Agreement, “Cause” shall mean the occurrence of any one of the
following events:
(a)
Employee’s material breach of any provision of this Agreement or of Executive Employee Confidentiality, Non-Competition
and Invention Assignment Agreement of even date herewith, entered into by and between the Company and Employee, which breach is
not cured within ten days after the Company provides Employee with written notice of the nature and existence of such material
breach;
(b)
Employee’s willful refusal to obey written directions of Employee’s supervisor of the Company (so long as such directions
do not involve illegal or immoral or otherwise improper acts), which refusal continues for a period of five business days after
notice to Employee by the Company, and which notice references such refusal and this Section 8.
(c)
Employee’s failure to perform Employee’s duties and responsibilities with diligence and in accordance with the productivity
and quality requirements of the Company, which failure continues for a period of ten business days after written notice to Employee
by the Company of Employee’s failure to perform; provided, however, that if Employee has been provided written notice pursuant
to this Section 8 on two separate occasions during the Initial Term, any subsequent failure by Employee to perform Employee’s
duties and responsibilities in accordance with the Company’s requirements shall constitute Cause and the Company shall not
be required to provide any written notice or opportunity for Employee to correct Employee’s performance prior to a termination
of Employee’s employment by the Company;
(d)
Employee’s repeated refusal to comply with Company written policies or requirements which are adopted by the Board
of Directors from time to time and which apply to Employee’s responsibilities;
(e)
Employee’s action, or failure to act, in violation of any provision of the Company’s standard employee
guidelines, including but not limited to any policy concerning sexual harassment, substance abuse, as such policies may be in
effect from time to time, if such violation of the Company’s policy would generally result in the termination of
employment of a Company employee;
(f)
Fraud or dishonesty by Employee, in the good faith opinion of the Board of Directors of the Company; or
(g)
If Employee is convicted or admits to the commission of a criminal offense or act of moral turpitude that constitutes a felony
in the jurisdiction in which the offense is committed.
(h)
The notice of termination required by this section shall specify the ground for the termination and shall be supported by a statement
of all relevant facts.
(2).
Termination Upon Death or Disability.
i.
Death
. This Agreement shall be terminated immediately upon the death of Employee.
ii.
Disability
. Company reserves the right to terminate this Agreement if, due to illness or injury, either physical or mental,
Employee is unable to perform Employee’s customary duties as an employee of Company, unless reasonable accommodation can
be made to allow Employee to continue working, for more than 30 days in the aggregate out of a period of 12 consecutive months.
The disability shall be determined by a certification from a physician. Such a termination shall be effected by giving ten days’
written notice of termination to Employee. Termination pursuant to this provision shall not prejudice Employee’s rights
to receive disability insurance payments or the continued compensation pursuant to this Agreement.
iii.
Without cause.
Termination under this section for either death or disability shall not be considered “for cause”
for the purposes of this Agreement.
(3).
Effect of Merger, Change of Control, Transfer of Assets, or Dissolution.
Without the prior written consent of Employee,
this Agreement shall not be terminated by any voluntary or involuntary dissolution of Company resulting from a merger, change
of control (greater than the transfer of 45% of voting securities or consolidation in which Company is not the consolidated or
surviving corporation), or a transfer of all or substantially all of the assets of Company. In the event of any such merger, change
of control or consolidation or transfer of assets, Employee’s rights, benefits, and obligations hereunder shall be assigned
to the surviving or resulting corporation or the transferee of Company’s assets, unless Employee agrees otherwise.
(4).
Payment on Termination
. If Company terminates this Agreement “without cause,” it shall pay “Severance
Benefits” to the Employee. Severance Benefits shall mean, for purposes of this Agreement, a cash payment equal to the aggregate
compensation payable to the Employee during the remaining term of this Agreement, including all salary, commissions, bonuses and
other compensation. In the case of termination under section (8)(3), Severance Benefits will be, at a minimum, the value of Employee’s
then annual salary.
(5).
Termination by Employee
.
i.
Without Cause.
Employee may terminate this Agreement without cause upon 30 days’ prior written notice to Company.
ii.
With Cause.
Employee may terminate this Agreement immediately with cause, in which event Employee shall receive the Payment
on Termination in accordance with Section 8(4) herein. For the purposes of this Agreement, “cause” for termination
by Employee shall be a breach of any material covenant or obligation hereunder; or the termination of this Agreement without the
prior written consent of Employee due to the voluntary or involuntary dissolution of the Company, any merger or consolidation
in which the Company is not the surviving or resulting corporation, or any transfer of all or subsequently all of the assets of
Company.
9.
General Provisions.
a.
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Parties hereto their respective devisees,
legatees, heirs, legal representatives, successors, and permitted assigns. The preceding sentence shall not affect any restriction
on assignment set forth elsewhere in this Agreement.
b.
Notices.
Any notice, request, instruction, or other document required by the terms of this Agreement, or deemed by any
of the Parties hereto to be desirable, to be given to any other party hereto shall be in writing and shall be given by personal
delivery, overnight delivery, mailed by registered or certified mail, postage prepaid, with return receipt requested, or sent
by facsimile/electronic transmission to the addresses of the Parties as follows:
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To
Company:
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Cipherloc
Corporation
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825
Main Street, Suite 100
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Buda,
TX 78610
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Email:mdgl@Cipherloc.net
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Attn:
President
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To
Employee:
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Gino
J. Mauriello
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1607
East Windmill Lane
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Las
Vegas, NV 89123
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Email:
gino@ginotax.com
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The
persons and addresses set forth above may be changed from time to time by a notice sent as aforesaid. If notice is given by personal
delivery or overnight delivery in accordance with the provisions of this Section, such notice shall be conclusively deemed given
at the time of such delivery provided a receipt is obtained from the recipient. If notice is given by mail in accordance with
the provisions of this Section, such notice shall be conclusively deemed given upon receipt and delivery or refusal. If notice
is given by facsimile/electronic transmission in accordance with the provisions of this Section, such notice shall be conclusively
deemed given at the time of delivery if during business hours and if not during business hours, at the next business day after
delivery, provided a confirmation is obtained by the sender.
c.
Sums Due Deceased Employee.
If Employee dies prior to the expiration of the employment term, any sums that may be due him
from Company under this Agreement as of the date of death shall be paid to Employee’s executors, administrators, heirs,
personal representatives, successors, and assigns.
d.
Assignment
. Subject to all other provisions of this Agreement, any attempt to assign or transfer this Agreement or any
of the rights conferred hereby, by judicial process or otherwise, to any person, firm, Company, or corporation without the prior
written consent of the other Party, shall be invalid, and may, at the option of such other Party, result in an incurable event
of default resulting in termination of this Agreement and all rights hereby conferred.
e.
Choice of Law
. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance
with the laws of the State of Texas including all matters of construction, validity, performance, and enforcement and without
giving effect to the principles of conflict of laws.
f.
Jurisdiction
. The parties submit to the jurisdiction of the Courts of the State of Texas or a Federal Court impaneled in
the State of Texas for the resolution of all legal disputes arising under the terms of this Agreement.
g.
Indemnification
. Company shall indemnify, defend and hold Employee harmless, to the fullest extent permitted by law, for
all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest,
penalties and reasonable attorney’s fees that Employee shall incur or suffer that arise from, result from or relate to the
discharge of Employee’s duties under this Agreement. Company shall maintain adequate insurance for this purpose or shall
advance Employee any expenses incurred in defending any such proceeding or claim to the maximum extent permitted by law.
h.
Entire Agreement
. Except as provided herein, this Agreement, including exhibits, contains the entire agreement of the Parties,
and supersedes all existing negotiations, representations, or agreements and all other oral, written, or other communications
between them concerning the subject matter of this Agreement. There are no representations, agreements, arrangements, or understandings,
oral or written, between and among the Parties hereto relating to the subject matter of this Agreement that are not fully expressed
herein.
i.
Severability
. If any provision hereof is held to be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable. This Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, and the remaining provisions hereof shall remain in full
force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance wherefrom. Furthermore,
in lieu of such illegal, invalid or unenforceable provision there shall be added automatically by the Company as a part hereof
a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and legal, valid and enforceable.
j.
Captions
. The captions in this Agreement are inserted only as a matter of convenience and for reference and shall not be
deemed to define, limit, enlarge, or describe the scope of this Agreement or the relationship of the Parties, and shall not affect
this Agreement or the construction of any provisions herein.
k.
Modification
. No change, modification, addition, or amendment to this Agreement shall be valid unless in writing and signed
by all Parties hereto.
l.
Attorneys’ Fees
. In the event any Party hereto shall commence legal proceedings against the other to enforce the terms
hereof, or to declare rights hereunder, as the result of a breach of any covenant or condition of this Agreement, the prevailing
Party in any such proceeding shall be entitled to recover from the losing Party its costs of suit, including reasonable attorneys’
fees, as may be fixed by the court.
m.
Taxes
. Any income taxes required to be paid in connection with the payments due hereunder, shall be borne by the Party
required to make such payment. Any withholding taxes in the nature of a tax on income shall be deducted from payments due, and
the Party required to withhold such tax shall furnish to the Party receiving such payment all documentation necessary to prove
the proper amount to withhold of such taxes and to prove payment to the tax authority of such required withholding.
n.
Not for the Benefit of Creditors or Third Parties
. The provisions of this Agreement are intended only for the regulation
of relations among the Parties. This Agreement is not intended for the benefit of creditors of the Parties or other third Parties
and no rights are granted to creditors of the Parties or other third Parties under this Agreement. Under no circumstances shall
any third party, who is a minor, be deemed to have accepted, adopted, or acted in reliance upon this Agreement.
o.
Counterparts
. This Agreement may be executed in several counterparts and it shall not be necessary for each Party to execute
each of such counterparts, but when all of the parties have executed and delivered one of such counterparts, the counterparts,
when taken together, shall be deemed to constitute one and the same instrument, enforceable against each Party in accordance with
its terms.
p.
Facsimile Signatures
. The parties hereto agree that this Agreement may be executed by facsimile signatures and such signatures
shall be deemed originals. The parties further agree that within ten days following the execution of this Agreement, they shall
exchange original signature pages.
IN
WITNESS WHEREOF,
the Parties hereto have caused this Agreement to be duly executed as of the Effective Date.
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COMPANY:
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Cipherloc
Corporation, a Texas Corporation
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/s/
Michael De La Garza
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By:
Michael De La Garza
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Its:
President/CEO
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EMPLOYEE:
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Gino
J. Mauriello
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/s/
Gino J. Mauriello
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By:
Gino J. Mauriello
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Exhibit
10.40
RESELLER
AGREEMENT
This
Reseller Agreement (the “Agreement”) is made and entered into as of this 30th day of May 2019, by and between Cipherloc
Corporation a Texas corporation, located at 825 Main Street, Suite 100, Buda, TX 78610 (“the Company”), and Quality
Health Care International LLC, a Nevada limited liability company located at 192 Hanna Court, Mesquite, NV 89027 and its affiliate
(individually, a “Party” and collectively, the “Parties”).
WHEREAS
,
Cipherloc desires to appoint Reseller as a reseller for the Products (as defined below) on an exclusive basis as to the customers
as set forth in Schedule A; and
WHEREAS
,
Reseller desires to be appointed to distribute and resell such Products either on a standalone basis or in conjunction with Services
(as defined below); and
NOW,
THEREFORE
, in consideration of the mutual covenants and agreements contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Reseller hereby agree as follows.
1.
DEFINITIONS
In
addition to the terms defined throughout this Agreement, the following definitions shall also apply:
1.1
“
Change of Control
” means the merger, consolidation or the sale of an entity to an unrelated third party,
whether by (a) sale of securities (by the entity or its securities holders) which results in the securities holders of the entity
immediately prior to such sale owning less than fifty percent (50%) of the voting securities of the entity immediately after such
sale, or (b) sale of all or substantially all of the entity’s assets.
1.2
“
Effective Date
” means the date this Agreement is countersigned by an authorized representative of Cipherloc.
1.3
“
End User
” means anyone that is granted a right, license or sublicense to use the Products by or through
Reseller solely for such End User’s internal business purposes and that cannot resell, lease, sublicense or otherwise distribute
the Software to any other party.
1.4
“
EULA
” means Cipherloc’s form end user license agreement provided by Cipherloc with the Software
Products to Reseller and subject to revision by Cipherloc from time to time. Where the EULA is provided embedded in the Software,
a hard copy is available upon written request to Cipherloc.
1.5
“
Demonstration Software
” means free, limited-time versions of Products, including Software, which Cipherloc
may provide as the Parties mutually agree.
1.6
“
Documentation
” means the documentation, manuals and other materials provided by Cipherloc to Reseller
that relate to the Products, whether in printed form, electronic form, posted on Cipherloc’s website, available on-line
or in any other format.
1.7
“
Intellectual Property Rights
” means all rights related to all information and know-how (whether or not
confidential), trade secrets, works of authorship (whether or not copyrightable), patents, copyrights, trademarks, trade names,
applications for any of the foregoing, ideas or concepts (whether or not patentable), or improvements, modifications or additions
to any of the above, including, in the case of Cipherloc and its licensors, the Products.
1.8
“
Maintenance and Support Services
” means those maintenance and support services provided by Cipherloc to
End Users, including but not limited to basic, standard product support provided by Cipherloc pursuant to the Cipherloc Support
Terms, which may be modified, in Cipherloc’s sole discretion from time to time effective immediately upon posting to the
Cipherloc’s website) and product support services provided by Cipherloc to End Users pursuant to an Cipherloc Professional
Services Agreement.
1.9
“
Products
” means Software Licensing Agreements for its newly developed software known as CipherLoc Platform,
Cipherloc Shield, Cipherloc SMS, Cipherloc SDK, Maintenance and Support Services, Documentation, and other materials and services
made available by Cipherloc to Reseller pursuant to this Agreement and shall initially mean the Products specified on Schedule
A. The Products available under this Agreement may be amended at any time by Cipherloc upon prior written notice to and agreement
with Reseller.
1.10
“
Services
” means professional consulting, services to be offered to End Users in conjunction with the Products,
including but not limited to Maintenance and Support Services.
1.11
“
Software
” means the software applications packages and all future derivations, upgrades and revisions
thereto, in executable object code only, that are made commercially available by Cipherloc to its End Users in general releases
from time to time.
1.12
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Territory
” means the geographic areas specified on
Schedule A
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2.
GRANT OF LICENSE
2.1
Reseller License
.
Subject to the terms and conditions of this Agreement, Cipherloc grants to Reseller during the Term
an exclusive, non-transferable right and license to market and distribute the Products, alone or in combination with Services
offered by either Cipherloc or Reseller, directly to End Users for use solely within the Territory. Services to be provided directly
by Reseller to End User in conjunction with the Products will be the subject of independent offerings by Reseller alone and will
be governed solely by the terms and conditions of separate agreements entered into between Reseller and the End User. For Services
provided directly by Cipherloc to End User, including but not limited to Maintenance and Support Services, the End User may be
required, in Cipherloc’s sole discretion, to enter into an agreement directly with Cipherloc only, Reseller only, or both
Cipherloc and Reseller. Reseller agrees to abide by Cipherloc’s direction on such End User contracting requirements for
Services to be provided directly by Cipherloc to End User, provided such direction has been given in writing by Cipherloc to Reseller
(which direction may be modified, in Cipherloc’s sole discretion and Reseller’s agreement, from time to time effective
immediately upon receipt by Reseller.
2.2
Limitations on Distribution License
.
Reseller will have no rights to the Products except as set forth in this Agreement
or a separate, written license agreement signed by Cipherloc. Reseller will not authorize or appoint any reseller, dealers, agents,
representatives, sub-distributors, original equipment manufacturers, value-added resellers, systems integrators, or other third
parties to market or distribute the Products without the prior written consent of Cipherloc. Reseller will have no rights to source
code to the Software. Reseller will not cause or permit the recompilation, disassembly, reverse engineering or other decoding
of the Products. Reseller will not replicate, produce, copy, or modify the Products (including any Demonstration Software), except
as provided for in this Agreement or, if applicable, the EULA.
2.3
License Enforcement
.
Reseller shall use its best efforts to assist Cipherloc in the protection of Cipherloc’s
legal rights relating to the Products, including without limitation, providing prompt written notice to Cipherloc of any known
violations or breaches of any EULA and any infringement by third parties of Cipherloc’s Intellectual Property Rights. Reseller
shall use its best efforts to cooperate with Cipherloc in any action by Cipherloc alleging any actual or threatened violation
of Cipherloc’s Intellectual Property Rights.
3.
PRODUCT ORDERS, SUPPLY, SHIPMENT AND CANCELLATION
3.1
Acceptance by Cipherloc
.
All orders placed with Cipherloc for Products shall be subject to acceptance by Cipherloc,
in its sole discretion, at its principal place of business. All orders for Products must have a confirming purchase order number
from Reseller.
3.2
Scope
.
The terms of this Agreement shall govern all purchase orders relating to the Products. The terms contained in
succession documents which shall include, without limitation, acknowledgements, invoices or purchase orders, and the terms of
any prior agreements between Cipherloc and Reseller related to the subject matter of this Agreement, are hereby superseded by
the terms of this Agreement and any terms contained in such documents that are additional to or inconsistent with this Agreement
shall have no force or effect, unless specifically agreed to in a writing signed by Cipherloc after the Effective Date.
3.3
Cancellation or Delay by Cipherloc
.
If Reseller fails to comply with any material term or condition of this Agreement,
Cipherloc reserves the right to cancel or delay shipment of any order placed by Reseller and accepted by Cipherloc. Cipherloc
will notify Reseller within five (5) days of receipt of a purchase order if it is unable to meet Reseller requested delivery date
and provide Reseller with the delivery date or dates on which Cipherloc will be able to deliver the Products ordered; provided,
however, Cipherloc shall not be liable, other than through its negligence, for any damages to Reseller or to any other person
for Cipherloc’s delay in delivery or error in filling orders.
3.4
Shipment
.
All Products will be delivered to the destination designated on Reseller’s purchase order. Unless
otherwise directed by Reseller in its purchase order, Cipherloc shall select a common carrier. Costs for shipment shall be added
to the invoice as a separate line item and paid by Reseller.
3.5
Export Restrictions
.
Reseller acknowledges that all Products are subject to the export control laws and regulations
of the United States, and any amendments thereto. Reseller confirms that it will not export or re-export the Products, any technical
data received under or in connection with this Agreement, or any direct Product (including processes and services) produced by
the use of any such technical data, directly or indirectly, to (i) any countries that are subject to United States export or (ii)
to any End User whom Reseller knows or has reason to know will utilize them in the design, development or production of nuclear,
chemical or biological weapons. In addition, if Cipherloc informs Reseller that, or Reseller knows or has reason to know that,
any Product contains encryption or other capabilities subject to the International Traffic in Arms Regulations (ITAR) set forth
at 22 C.F.R. section 120
et seq
., Reseller shall not export such Product in violation of ITAR.
3.6
Modifications to or Discontinuation of Products
.
Cipherloc may, at any time and in its sole discretion, discontinue
distribution of or modify any or all Products or versions of Products, or discontinue support, maintenance, or the provision of
new versions, updates, or corrections for any Product or version of a Product without liability. Cipherloc agrees to give Reseller
at least ninety (90) days prior notice of any Product that Cipherloc will be discontinuing. Such notice may be given by Cipherloc
in any form or manner, including but not limited to posting on Cipherloc’s website, delivery of an email or other written
notification.
4.
PRICES AND PAYMENTS
4.1
Resellers Price
.
Reseller shall receive the pricing discounts on the Products as specified in
Schedule A
, using
the Cipherloc published Price List in effect at the time of the order. Prices or discounts specified on
Schedule A
and
the Price List are subject to change upon ninety (90) days advance written notice of any change that results in a price increase.
Any increase in price to Reseller shall only be effective for orders received after expiration of the ninety (90) days advance
written notice. Decreases in price shall be effective immediately upon the date of the notice.
4.2
Discounts
. Should
Schedule A
or the Price List contain volume discount provisions, Reseller covenants that it
will not seek to circumvent such provisions by entering into cooperative buying agreements with other customers of Cipherloc.
4.3
Resale Product Prices
.
The prices for the Products listed in the Price List are suggested list prices. The parties
acknowledge that Reseller shall be free to resell the Products at its own prices. No Cipherloc representative has the authority
to require or suggest that Reseller charge a particular resale price for the Products which it purchases hereunder.
4.4
Payment
.
Unless otherwise agreed to by Cipherloc in writing, all payments shall be in U.S. currency. Payment for Products
shall be due and paid net thirty (30) days from the date of delivery and receipt of an invoice from Cipherloc. A late payment
charge of the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by law shall be charged upon unpaid
balances past due by more than thirty (30) days.
4.5
Taxes
.
Reseller is responsible for payment of any and all applicable taxes, other than Cipherloc’s net income
taxes relating to the Products and this Agreement. Orders are subject to applicable sales, use and/or other such taxes unless
a resale certificate is on file with Cipherloc. In the event Cipherloc is required to pay any applicable taxes with respect to
any order made pursuant to this Agreement, Reseller shall pay any such taxes, as included on the invoice.
4.6
Expense Advances.
Cipherloc has advanced $416,000 to the Reseller to assist in establishing the necessary technical
staff, office and employees to successfully sell the Products in the Territory. The expense advances shall be reimbursed by Reseller
from Reseller’s initial gross receipts, generated through the sale of the Products, until fully repaid pursuant to a Promissory
Note attached as Exhibit A.
4.7
Audits
.
Reseller agrees to allow Cipherloc to examine such books, records and accounts at Reseller’s site to
verify Reseller’s reports on the amount of payments made to Cipherloc under this Agreement. Such audits will be conducted
monthly until the Expense Advances have been repaid in full. Thereafter on an annual basis upon fifteen (15) days prior written
notice and shall occur during normal business hours. The cost of the audit shall be borne by Cipherloc unless the audit results
reveals an underpayment of five-percent (5%) or more of the total amounts due to Cipherloc during the audited period, in which
case the cost of such audit shall be paid by Reseller.
5.
SERVICES, MARKETING AND OTHER REQUIREMENTS
5.1
Applicability of Product
.
Cipherloc shall have no liability for recommendations or misrepresentations made by Reseller
to End Users and Reseller assumes responsibility for the selection and recommendation of the Products to achieve the desired results
and business purposes of End Users.
5.2
End User
.
Should an End User request that Cipherloc intervene on such End User’s behalf with Reseller concerning
Reseller’s provision of Services, Cipherloc and Reseller agree to use their commercially reasonable efforts to resolve
such End User’s problems. Neither Cipherloc nor Reseller shall have any obligation to expend any expense or perform any
services under this
Section 5.2
unless otherwise agreed by the parties in a separate written agreement. End Users are not
third party beneficiaries of this
Section 5.2
.
5.3
Training
.
Reseller shall promptly complete all training requirements as set forth in
Schedule B
. Unless otherwise
specified in writing by Cipherloc, all training shall be web based. If Cipherloc agrees to conduct training other than web-based
training, Reseller shall pay Cipherloc all ancillary expenses associated with such training, including but not limited to, Cipherloc’s
travel expenses.
5.4
Marketing
.
Reseller shall use its best efforts to promote and market the Products. Reseller shall provide sufficient
qualified staff to carry out its obligation to actively market and solicit sales of Products. Reseller will include a representative
listing of all Products in applicable catalogs and published price lists. Reseller will display and demonstrate appropriately
configured Products. Within the time period specified on
Schedule B
, Reseller shall have at least the number of employees
specified on
Schedule B
trained to demonstrate each Product.
5.5
Marketing Practices
.
At Cipherloc’s sole discretion, Cipherloc may provide Reseller with reasonable quantities
(or master copies) of Cipherloc’s standard advertising and promotional materials, pricing information and technical data
related to the Products (“Marketing Materials”). Reseller shall (a) perform its duties in a manner that will preserve
the reputation and promote the goodwill, name and interests of Cipherloc and the Products; (b) avoid deceptive, misleading or
unethical practices that are or might be detrimental to Cipherloc, the Products or the public including, but not limited to, disparagement
of Cipherloc or the Products; (c) make no false or misleading representation with respect to the Products or Cipherloc; (d) not
publish or use any misleading or deceptive advertising material; and (e) make no representations with respect to the Products
or Cipherloc that are inconsistent with the Documentation, Marketing Materials and other literature distributed by Cipherloc,
including all warranties, disclaimers, and support policies contained in such Documentation, Marketing Materials and other literature.
In the event Reseller E, its officers, directors, agents or employees make any representation other than as permitted under this
Agreement, Reseller agrees to indemnify Cipherloc as provided in Section 8.2. Except as otherwise provided herein, neither Cipherloc
nor Reseller will publish, or cause or permit to be published, any advertising, press release or other material that refers in
any way to the other party or the Products without the prior written permission of the other party
;
provided, however that
Cipherloc may use Reseller’s name and may disclose that Reseller is a reseller of the Products in Cipherloc advertising,
promotions and similar public disclosures.
5.6
Program Requirements.
Reseller acknowledges and agrees that Cipherloc may, at its sole discretion, discontinue or change
at any time the Cipherloc Reseller program requirements (collectively, the “Program Requirements”), including without
limitation adoption of separate policies and procedures containing Program Requirements. Cipherloc may notify Reseller of such
changes by mail, by e-mail or by posting information on Cipherloc’s website. Such changes shall become effective thirty
(30) days after Cipherloc’s providing such notice to Reseller and shall be automatically incorporated by reference into
this Agreement. Notwithstanding the foregoing, should Cipherloc material change the Program Requirements, Reseller shall have
the right during the thirty (30) day prior notice period for such material change to immediately terminate this Agreement upon
written notice to Cipherloc.
6.
PRODUCT SUPPORT
6.1
Product Performance
.
Cipherloc will use its commercially reasonable efforts to make the Products perform substantially
in accordance with the product description set forth in the relevant Documentation that accompanies the Products, as it may exist
from time to time. However, Reseller acknowledges that inevitably some errors may exist in the Products, and the presence of such
errors and Cipherloc’s failure to correct such errors shall not be a breach of this provision.
6.2
Reseller Technical Support
.
Only Reseller engineers that have received training per
Schedule B
will be given
access to Cipherloc’s standard technical support telephone line, along with access authorization for standard technical
support. Cipherloc may provide on-site technical support, on a case-by-case basis, at Cipherloc’s then-current fees or for
a fee mutually agreed to by Cipherloc and Reseller.
6.3
Discontinued Products
.
Cipherloc shall support withdrawn or discontinued versions of its Software for a period of at
least six (6) months after its announced withdrawal or discontinuation. Communications between Cipherloc and Reseller regarding
withdrawn or discontinued Software are considered Confidential Information under Section 11.1 and are subject to the terms of
this Agreement.
6.4
Maintenance Services.
Cipherloc shall provide Software Maintenance and Services for the Products directly to End Users
so long as such End Users subscribe to Maintenance and Support Services and are in compliance with the applicable terms and conditions
for such Maintenance and Support Services.
6.5
Web and Phone Support for Demonstration Software.
During the Term, Cipherloc shall provide for the Demonstration Software
(i) Web-based support, consisting of information on the most current release of the Demonstration Software through Cipherloc’s
web site, including all available solutions and corrections for reported problems that are replicated and diagnosed by Cipherloc
as defects in the Software.
6.6
Product Errors and Omissions—Notification
.
Reseller shall identify and promptly inform Cipherloc of any design
or programming errors or omissions in the Products sold of which it becomes aware and consult with Cipherloc regarding necessary
corrections and/or modifications. Such notification shall occur through Cipherloc’s web site.
7.
INTELLECTUAL PROPERTY RIGHTS
7.1
Intellectual Property Rights
. Reseller acknowledges that the Products and all related Intellectual Property Rights
are owned by Cipherloc and that this Agreement grants no ownership rights to Reseller.
7.2
Limited Trademark License
. At Cipherloc’s sole discretion, Cipherloc may grant to Reseller during the Term a
non-exclusive, non-transferable, limited license to use in the Territory Cipherloc’s name, logo and other trademarks used
by Cipherloc with respect to the Products (the “Trademarks”) solely in connection with the promotion of the Products
and solely as pre-approved in writing by Cipherloc. Upon expiration or termination of this Agreement, Reseller agrees to cease
all display, advertising and use of any Trademarks.
7.3
Copyright; Trademark; Proprietary Notices
.
Reseller agrees to maintain and preserve any copyright notices, trademark
notices or any confidential or proprietary legends on all Products (including Demonstration Software).
8.
INDEMNIFICATION
8.1
Mutual Indemnification — Violations of Law
.
Each party shall perform its duties in compliance with all applicable
laws and shall hold the other party harmless and indemnify the other party for, from and against any loss, claim, damage, liability,
or expense, including reasonable attorney’s fees, arising from any violation of law by such party.
8.2
Reseller Indemnification — Breach of Agreement
.
Reseller will defend and indemnify Cipherloc for, from and against,
and hold Cipherloc and its officers, directors and employees harmless from, any and all losses, claims, damages, liabilities and
expenses, including reasonable attorney fees and costs of litigation, resulting from (i) any improper acts or omissions by Reseller
relating to its activities in connection with this Agreement, (ii) any breach by Reseller of any of its obligations under this
Agreement, (iii) any violation of the Foreign Corrupt Practices Act (FCPA) including its accounting provisions, and (iv) any misrepresentations
relating to Cipherloc, the Products, or this Agreement.
8.3
Cipherloc Indemnification – Infringement
.
Cipherloc agrees, for as long as copies of the Products sold by Reseller
are in use by End Users licensed by Cipherloc through Reseller, to indemnify and hold Reseller and its officers, directors and
employees harmless for, from and against any loss, claim, damage, liability, expense, or cost, including reasonable attorneys’
fees, arising out of any claim, demand, or suit to the extent a Product violates any copyright, patent, trade secret, trademark,
or proprietary right existing under the laws of the United States or any state or territory thereof (“
Claim
”);
provided that such indemnity shall not apply if (i) the violation arises out of use of the Products in combination or in connection
with other products or components, and such violation would not have existed from use of the Products on a stand-alone basis,
(ii) the violation arises out of modifications made to the Products other than by Cipherloc, (iii) Reseller’s failure to
implement enhancements as required by Cipherloc. Cipherloc shall have no obligation to Reseller to defend or satisfy any Claims
made against Reseller that arise from the use, marketing, licensing or disposition of the Products by Reseller that is not expressly
authorized by this Agreement. In the event any such Claim is brought or threatened, Cipherloc may, at its sole option and expense:
(i) procure for Reseller the right to continue use of the Product or infringing part thereof; and/or (ii) modify or amend the
Product or infringing part, or replace the Product or infringing part with other software or product having substantially the
same or better capabilities. If neither of the foregoing is commercially practicable, Cipherloc may terminate this Agreement with
respect to the infringing part of the Product, whereupon Cipherloc shall refund a pro rata portion of the fees (based on a useful
life equal to three (3) years) paid by Reseller for the infringing Product. If Cipherloc supplies a non-infringing update or version
of the Product, Reseller shall promptly supply the same to its End Users and install the same at its End User locations. If, in
its judgment, Cipherloc deems that, due to the Claim or for any other reason, it is not in Cipherloc’s interest to continue
distributing the Products, Cipherloc, without breaching this Agreement, may terminate the distribution of any or all of the Products.
THE REMEDIES SET FORTH IN THIS SECTION 8.3 SHALL BE Reseller’s SOLE AND EXCLUSIVE REMEDIES IN THE EVENT OF AN INFRINGEMENT
CLAIM RELATING TO THE PRODUCTS.
8.4
Indemnification Conditions
.
The indemnification obligation in Sections 8.3 and 8.4 shall be effective only if (1) the
party seeking indemnification (the “Indemnified Party”) gives prompt notice of the Claim and permits, and gives the
party providing the indemnification (the “Indemnifying Party”) the sole authority, to control the defense and settlement,
if any, and (2) Indemnified Party cooperates in the defense of the Claim by giving such assistance and information as the Indemnifying
Party may require to settle or oppose such Claims. The Indemnifying Party shall have the exclusive right to defend any such Claims
and make settlements thereof at its own discretion, and the Indemnified Party may not settle or compromise such Claims, action
or allegation, except with the prior written consent of Indemnifying Party.
9.
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
9.1
Compliance with Laws
.
Reseller represents and agrees that it will not conduct business under this Agreement in any
jurisdiction without first obtaining all approvals required in such jurisdiction. The appointment of Reseller as a reseller under
this Agreement shall not become effective with respect to any jurisdiction unless and until all government or trade association
approvals required by the laws of such jurisdictions have been issued, and Reseller shall cease all sales and marketing of the
Products in any jurisdiction for which Cipherloc provides written notice that (i) sales of the Products in that jurisdiction are
prohibited or restricted under the export control laws or regulations of the United States; or (ii) in Cipherloc’s reasonable
opinion that jurisdiction does not provide adequate and effective protection for Cipherloc’s confidential information, trademarks
and/or other Intellectual Property Rights. In addition, Reseller agrees not to take any actions to register as a dealer or distributor
in a jurisdiction where the effect of such registration would be to either grant Reseller exclusive distribution rights in such
jurisdiction with respect to the Products or otherwise substantially impede the ability of Cipherloc or any other business Reseller
of Cipherloc to act legally as a dealer or distributor in such jurisdiction. If the laws of a particular jurisdiction effectively
prohibit the ability of Cipherloc to have more than one of its business resellers to distribute Products in such jurisdiction,
Reseller acknowledges and agrees that the choice of which business reseller to use in such jurisdiction will belong solely to
Cipherloc and that Cipherloc may appoint a business reseller to act exclusively on its behalf in such jurisdiction without breaching
any provisions of this Agreement.
9.2
Defective Materials — Limited Warranty Policy
.
Cipherloc warrants that the media upon which the Products are
delivered by Cipherloc pursuant to this Agreement shall be free from defects in material and workmanship at the time of purchase
and that Cipherloc will replace any such media found to be defective, provided such defect is reported to Cipherloc within thirty
(30) days of delivery of the Product to Reseller or the End User, as the case may be. At the option of Cipherloc, the defective
media (including the original distribution program media) must be returned to Cipherloc in its entirety or destroyed by Reseller.
In the case of destruction, Reseller must execute and deliver to Cipherloc a “destruction certificate”, in a form
and substance acceptable to Cipherloc, certifying that the defective media has been destroyed. Returned Products will be replaced
at no charge, including shipping charges, within ten (10) days of its receipt by Cipherloc. Cipherloc further warrants to Reseller
that the Products shall perform substantially in accordance with the product description set forth in the relevant Documentation
that accompanies the Products, as it may exist from time to time. Cipherloc does not warrant that the Products shall operate in
combination with other software selected by Reseller or End User, or that the Products shall operate uninterrupted or free of
errors. If the Products do not perform as warranted, Reseller’s sole and exclusive remedy shall be as follows: Cipherloc
shall undertake commercially reasonable efforts to correct the Products, and if after undertaking such commercially reasonable
efforts, Cipherloc determines that it is unable to correct the Product, Cipherloc shall refund to Reseller an amount equal to
a pro rata portion of the fees paid by Reseller for the non-conforming Product based on a useful life of three (3) years. The
limited warranties in this
Section 9.2
are made to and for the benefit of Reseller only and are conditioned upon Reseller
E’s use of the Products in accordance with the terms of this Agreement, the Documentation and other reasonable instructions
provided by Cipherloc. These limited warranties shall not apply to Products to the extent that a Product error occurs because
of and would not have occurred but for: (i) modifications made to the Product (other than those provided by Cipherloc under this
Agreement or through product support); (ii) the End User’s failure to implement bug fixes, error corrections and enhancements
as required by Cipherloc; (iii) use of the Products in connection with any computer equipment or devices not specified in the
Documentation or otherwise not approved in writing by Cipherloc; or (iv) installation or use of the Products contrary to the specifications
and directions contained in the Documentation or other reasonable instructions of Cipherloc. No employee, agent, representative
or affiliate of Cipherloc has authority to bind Cipherloc to any oral representations or warranty concerning the Products. Any
written representation or warranty not expressly contained in this Agreement is not authorized and is unenforceable. No amendment
to this Agreement altering or adding a representation or warranty shall be effective unless set forth in a writing executed by
an authorized representative of Cipherloc.
9.3
Disclaimer of Warranty
.
EXCEPT FOR THE LIMITED WARRANTIES PROVIDED ABOVE IN SECTION 9.2, THE PRODUCTS ARE PROVIDED
“AS-IS” AND CIPHERLOC MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO
THE PRODUCTS OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO RESELLER UNDER THIS AGREEMENT. TO THE FULLEST EXTENT ALLOWED
BY LAW, CIPHERLOC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A
PARTICULAR PURPOSE (EVEN IF CIPHERLOC HAS BEEN INFORMED OF SUCH PURPOSE).
10.
LIMITATIONS OF LIABILITY
10.1
Limitation of Liability
. EXCEPT FOR EACH PARTY’S OBLIGATIONS UNDER SECTION 11 (CONFIDENTIAL INFORMATION), IN
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS
OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS) WHETHER IN CONTRACT, TORT, STRICT
LIABILITY OR OTHERWISE, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT BE CONSTRUED TO LIMIT LICENSEE’S LIABILITY FOR PAYMENT FOR ALL
COPIES OF THE LICENSED SOFTWARE MADE BY OR ON BEHALF OF LICENSEE OR FOR INFRINGEMENT OR MISUSE OF CIPHERLOC’S PROPRIETARY
RIGHTS OR CONFIDENTIAL INFORMATION.
IN
NO EVENT SHALL CIPHERLOC’S TOTAL LIABILITY (WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER FORM OF LIABILITY) UNDER THIS
AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID OR DUE FOR PAYMENT BY RESELLER FOR THE SPECIFIC PRODUCTS WHICH ARE THE SUBJECT OF THE
CLAIM.
TO
THE EXTENT THAT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE
LIMITATION MAY NOT APPLY AND IN SUCH JURISDICTIONS THE LIABILITY OF EITHER PARTY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED
BY LAW. THE PARTIES AGREE THAT THE ABOVE WARRANTIES AND LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK AMONG THE PARTIES
AND THE PRICE OF THE PRODUCT.
10.2
Time Period
.
No action, regardless of form, may be brought against a party by the other party more than two (2) years
after the claim has arisen.
10.3
Exclusive Remedies
.
THE REMEDIES PROVIDED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE REMEDIES OF THE PARTIES AND
SHALL APPLY NOTWITHSTANDING FAILURE OF THEIR ESSENTIAL PURPOSE.
11.
CONFIDENTIAL INFORMATION
11.1
Non-Disclosure
.
Each party acknowledges that it may receive Confidential Information from the other party. “
Confidential
Information
” means any information, technical data or know-how, including, without limitation, that which relates to
computer software programs or documentation, specifications, source code, object code, research, inventions, processes, designs,
drawings, engineering, products, services, customers, sales leads, markets or finances of the disclosing party which is identified
as confidential at the time of disclosure. Confidential Information shall be treated as confidential if it is disclosed in documentary
or tangible form marked “Confidential” or, in the case of disclosures made orally or by visual inspection, identified
as “Confidential” at the time of disclosure. Each party agrees that all Confidential Information of the other party
shall be held in strict confidence and shall not be disclosed or used without the express prior written consent of the other party.
The receiving party shall exercise at least the same degree of care, but not less than reasonable care, to safeguard the Confidential
Information of the disclosing party as the receiving party would exercise to safeguard similar information of its own. The receiving
party shall not disclose the disclosing party’s Confidential Information, or any part or parts thereof, to any of its employees,
agents, or contractors except on a “need to know” basis. Confidential Information shall not include any information
(i) already in the possession of the receiving party; (ii) received without an obligation of confidentiality; (iii) independently
developed by the receiving party without use of the disclosing party’s Confidential Information; (iv) in the public domain;
(v) authorized for disclosure by the disclosing party; (vi) disclosed by order of law or court order; or (vii) released without
restriction by the disclosing party.
11.2
Protected Period.
The obligations set forth in this
Section 11
shall continue for a period of two (2) years
after termination of this Agreement.
12.
TERM AND TERMINATION
12.1
Term
.
The term of this Agreement (“
Term
”) shall commence on the Effective Date for an initial period
of five (5) years unless otherwise earlier terminated by either party as provided herein. Thereafter, the Term shall automatically
renew and be extended for successive five (5) year periods unless either party shall have provided the other with written notice,
at least sixty (60) days before the relevant anniversary of the Effective Date, of its election not to have the Term renew past
such anniversary date.
12.2
Termination by Cipherloc
. Cipherloc may terminate this Agreement immediately upon written notice to Reseller if Reseller
(a) breaches or fails to comply with any of the terms or conditions of this Agreement, (b) fails to maintain a satisfactory credit
rating or financial condition or if Cipherloc reasonably concludes that, for any reason, Reseller is or will become unable to
discharge its obligations hereunder, or (c) breaches or fails to comply with any of the terms or conditions of Cipherloc’s
Certification Process.
12.3
Termination by Reseller
. Without prejudice to rights set forth in Section 12.2, Reseller may terminate this Agreement
upon 90 written notice to Cipherloc in the event of (a) liquidation or insolvency of the Cipherloc, (b) the appointment of a receiver
or similar officer for Cipherloc, (c) assignment by Cipherloc for the benefit of creditors, or (d) the filing of a petition in
bankruptcy by or against Cipherloc or any similar petition under the insolvency laws of any jurisdiction, which in the case of
a filing against Cipherloc is not dismissed in sixty (60) days.
12.4
Liability
. Termination of this Agreement pursuant to Section 12.2 or Section 12.3 shall not release the other party
from any liability for any breach of this Agreement.
12.5
Rights and Duties on Termination or Expiration
.
12.5.1
Payment of Amounts Due
.
Termination or expiration of this Agreement shall not relieve either party of the obligation
to pay any amount due to the other that accrued prior to the time of the termination or expiration. Further, Reseller agrees to
pay Cipherloc, as they come due, all support fees and other service or support revenues relating to Products that are owed to
Cipherloc, including those accrued or received by Reseller after termination or expiration.
12.5.2
Termination of Licenses
.
Upon termination or expiration of this Agreement, the distribution license and all related
licenses and rights granted to Reseller hereunder, including, but not limited to, the Demonstration Software license and limited
trademark license shall terminate immediately and Reseller shall make no further use of all or any part of the Products, Demonstration
Software, Cipherloc Trademarks, or Cipherloc Confidential Information. Reseller shall (a) immediately cease any public statements
or representations that it is an authorized Cipherloc Reseller or that it is in any way associated with Cipherloc and (b) immediately
return to Cipherloc all Demonstration Software and Cipherloc Confidential Information.
12.5.3
Survival
.
All obligations of the parties which expressly or by their nature survive the expiration or termination of
this Agreement, including the parties’ limitation of liability, indemnity and confidentiality obligations shall continue
in full force and effect until they are satisfied in full or by their nature expire.
12.5.4
Continued Use of Licensed Software
.
Upon termination or expiration of this Agreement, any End User who previously purchased
the Product from RESELLER shall have the continuing right to use the Product in accordance with the terms and conditions of the
applicable EULAs, which shall survive termination or expiration of this Agreement. Cipherloc shall continue to fulfill orders
for the Products to End Users submitted prior to the date of termination, provided that Reseller pre-pays in full such orders.
13.
GENERAL PROVISIONS
13.1
No Joint Venture.
It is expressly understood that the parties are acting as independent contractors hereunder and not
as an agent or representative of the other. This Agreement does not constitute a joint venture. Neither party shall enter into
any contract or commitment on behalf of the other.
13.2
Force Majeure
. Neither party shall be held responsible for any reasonable delay or failure in performance hereunder
(except with respect to the obligation to make payments hereunder) caused by fires, strikes, embargoes, acts of nature, or other
causes beyond their reasonable control.
13.3
Notice
.
All notices or other communications required or permitted hereunder shall be in writing and shall be deemed
to have been duly given either when delivered personally, by confirmed facsimile transmission, or five (5) days after being placed,
properly addressed to the addresses set forth above with first class, postage prepaid, return receipt requested, in the United
States mail, or sent by registered airmail, properly addressed to the addresses set forth above, postage prepaid and return receipt
requested. Notice of change of address shall be given by written notice in the manner detailed in this Section.
13.4
Entire Agreement
.
This Agreement and the Schedules and Exhibits hereto constitute the entire understanding between
the parties hereto with respect to the subject matter hereof and supersede any and all prior agreements and understandings between
the parties hereto with respect to the subject matter hereof, including, without limitation, any warranties, representations,
or agreements between Reseller and Cipherloc not set forth in this Agreement.
13.5
Modification.
This Agreement may be supplemented, amended, or modified only by the mutual agreement of each party and
shall only be effective if in a writing signed by each party.
13.6
Assignment
.
This Agreement, the licenses granted, and the parties’ rights and obligations hereunder may not be
assigned by either party, including as part of a Change of Control transaction, except with the express written consent of the
other party, which consent shall not be unreasonably withheld. Any purported assignment not in compliance with the foregoing shall
be null and void and of no effect; provided, however, that Cipherloc may assign this Agreement without Reseller’s prior
written approval when in connection with a Change of Control transaction. Notwithstanding the foregoing, this Agreement shall
be binding upon and inure to the benefit of the parties and its respective heirs, personal representatives, successors and assigns.
13.7
Severability.
This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Any headings
contained herein are for convenience only and shall not affect the construction hereof. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all such counterparts shall constitute one instrument. If any
provision or part thereof of this Agreement is stricken in accordance with the provisions of this Section, then this stricken
provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor
to the stricken provision as is legally possible.
13.8
Governing Law
.
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas
without regard to principles of conflicts of law.
13.9
Costs and Attorney Fees.
The prevailing party shall be entitled to recover, in addition to any other remedy, its reasonable
attorney fees, court costs, costs of investigation, expert fees and other related expenses incurred in connection with any enforcement
of rights under this Agreement.
13.10
Waiver
.
The failure or delay of any party to exercise any right or option arising out of a breach of this Agreement
shall not be deemed a waiver of any right or option with respect to any subsequent or different breach, or the continuance of
any existing breach, after demand for strict performance.
13.11
Representation on Authority of Parties/Signatories.
Each person signing this Agreement represents and warrants that
he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants
to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder
have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance
with its terms.
13.12
Injunctive Relief
.
The parties recognize that a remedy at law for a breach of the provisions of this Agreement relating
to Confidential Information, or use of Cipherlocs’ trademarks, copyrights, and other Intellectual Property Rights, will
not be adequate for the parties’ protection, and accordingly the non-breaching party shall have the right to obtain, in
addition to any other relief and remedies available to it, injunctive relief to enforce the provisions of this Agreement.
13.13
Ambiguities.
Each party and its counsel have had the opportunity to participate fully in the review and revision of
this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not
apply in interpreting this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly
for or against any party.
13.14
Mutual Non-solicitation of Employees
.
During the term of this Agreement and for a period of one (1) year following
termination of this Agreement, neither Cipherloc nor Reseller (nor any of their respective subsidiaries), without the prior written
consent of the other party, shall directly or indirectly solicit for employment or employ any employee of the other party with
whom it has worked during the performance of this Agreement. However, this restriction shall not prohibit a party from carrying
on and hiring employees of the other party who have responded to general industry solicitations in trade journals, through head-hunters
and the like
.
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above.
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Cipherloc Corporation
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Quality Health Care International
LLC
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By
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/s/
Michael De La Garza
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By
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/s/
Roberta Kale
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Michael
De La Garza
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Roberta
Kale
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President/CEO
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President/CEO
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Schedule
A
Products:
All
products listed on the Price List
Territory:
United
States and Territories
Other
countries made be added from time to time as mutually agreed by the parties
Customers:
All
licensed Healthcare Providers in the United States and Territories which includes hospitals, ambulatory services companies, public
and private education entities providing health education and training, healthcare insurance companies, government healthcare
provides such as the Center for Medicare Administration (CMA), Veteran’s Administration and Indian Health Services, home
health providers, pharmaceutical companies and distributors, and durable medical providers.
Demonstration
Software:
During
the Term, Cipherloc may develop and provide Reseller with Demonstration Software. Subject to the terms and conditions of this
Agreement and the applicable EULAs, during the Term Cipherloc grants Reseller a non-exclusive, non-transferable right and license
to use any such Demonstration Software with potential Reseller customers in the Territory for evaluation, demonstration, marketing,
promotional activities, and compatibility testing and analysis.
Additional
Cipherloc Termination Right for Failing to Meet Annual Revenue Goal
Should
Reseller fail to purchase a minimum of $1,000,000 of Cipherloc Products on an annual basis measured initially from the twenty
four month period from the Effective Date, Cipherloc shall have the right to terminate this Agreement effectively immediately
upon written notice to Reseller. For avoidance of doubt, the parties agree that Reseller’s failure to meet this minimum
annual revenue goal is not a breach of the Agreement.
RESELLER’S
Discount for Products:
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Fifteen
percent (15%) discount from the Cipherloc Price List for any new perpetual software licenses or the first year of a subscription
software license.
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Twenty-Five
(25%) discount from the Cipherloc Price List for any new perpetual software licenses or the first year of a subscription software
license for approved Registered Opportunities.
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Maintenance
and support services, Cipherloc professional services and hardware purchased in conjunction with Software listed above:
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Five
percent (5%) discount from the Cipherloc Price List for any new perpetual software licenses or the first year of a subscription
software license.
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●
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Renewal
of software subscription licenses or support and maintenance agreements sold beyond the first year of the sale of a perpetual
software license:
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○
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Five
percent (5%) discount from the Cipherloc Price List for any new perpetual software licenses or the first year of a subscription
software license.
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RESELLER’S
Discount for Products to End Users on Pass-Through Sales:
Five
(5%) discount from the Cipherloc Price List.
“Pass-Through
Sales” is defined as a sale whereby Reseller is acting as a fulfillment Reseller for the End User at the request of the
End User or Cipherloc and is not significantly involved in the selling process.
Schedule
B
Training
Cipherloc
will schedule training for Reseller within ninety (90) days of the Effective Date and, during this time period, Reseller agrees
to have two sales personnel and two technical personnel complete a total of 4 hours of web-based training on Cipherloc Products.
Exhibit
A
PROMISSORY
NOTE
FOR
VALUE RECEIVED, Quality Health Care International, LLC, a Nevada limited liability company located at 192 Hanna Court, Mesquite,
NV 89027 (“Debtor”) promises to pay to the order of Cipherloc Corporation a Texas corporation, located at 825 Main
Street, Suite 100, Buda, TX 78610 (Creditor), or such other place and person as Creditor may from time to time designate in writing,
in lawful money of the United States of America, the principal sum of Four Hundred Sixteen Thousand dollars ($416,000.00) together
with interest commencing the e first year anniversary of this Note on the unpaid principal balance at the rate of four percent
(4%) per year on or before May 29, 2021.
Payments.
Payments shall be made by Debtor pursuant to a certain Reseller Agreement entered between the Debtor and Creditor on May 30,
2019. In said Agreement the Debtor is the Reseller and the Creditor is Cipherloc Corporation
Debtor
will pay to Creditor all outstanding indebtedness evidenced by this Note (including any unpaid principal and any accrued and unpaid
interest) on or before May 29, 2021 on or before the first of the following to occur:
(a)
any sale, assignment or transfer of all or any substantial portion of the assets of Debtor or any of its affiliates;
(b)
any sale, assignment or transfer of a majority of the issued and outstanding shares of any class of stock or other equity interests
of Debtor or any of its affiliates;
(c)
any merger, consolidation, recapitalization or reorganization of Debtor or any of its affiliates;
(d)
receipt by Debtor or any of its affiliates of One Million Dollars ($1,000,000.00) or more in connection with any financing (debt
or equity), strategic alliance, joint venture, licensing or other transaction or series of related transactions; or
(e)
Creditor’s demand for payment given at any time on or after May 29, 2021.
Debtor
shall have the right to prepay the principal balance due under this Note in whole or in part (together with all accrued and unpaid
interest) at any time without penalty.
Business/Commercial
Purpose.
Debtor hereby represents and warrants to Creditor that this Note arises exclusively for business or commercial purposes,
and that this Note does not arise from any personal, family or household purposes.
Governing
Law; Jurisdiction and Venue.
This Note shall be governed by and construed and enforced in accordance with the laws of the
State of Arizona, without regard to its conflicts of law principles to the contrary. Debtor consents to the jurisdiction and venue
in the state and federal courts situated in Maricopa County, Arizona for any action relating to this Note.
Miscellaneous.
Debtor and all endorsers, sureties, accommodation parties, and all persons liable or to become liable on this Note, and each
of them, hereby severally waive diligence, demand, presentment for payment, notice of nonpayment, notice of dishonor, protest
and notice of protest, and specifically consent to and waive notice of any renewals or extensions of this Note or any part of
the whole of the debt evidenced by this Note, whether made to or in favor of Debtor or any other person or persons, and further
agree that any such action by Creditor shall not affect the liability of Debtor or any persons liable or to become liable on this
Note. Such consent shall not alter or diminish the liability of any person or the enforceability of this Note. Each and every
party signing or endorsing this Note binds itself as a principal and not as a surety. No waiver or modification of this Note shall
be effective unless it is express, in writing and signed by the party against whom enforcement of the waiver or modification is
sought. Any failure of the parties to comply with any obligation, agreement or condition contained in this Note may be expressly
waived in writing by the other party, but such waiver or failure to insist upon strict compliance shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure. The terms and conditions of this Note shall inure to the benefit
of and be binding upon the respective successors, assigns, heir and legal representatives of the parties.
DATED
as of the day and year first above written.
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Debtor:
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Quality
Health Care International, LLC
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By:
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/s/
Roberta Kale
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Roberta
Kale, President/CEO
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