SOFTWARE DEVELOPMENT, EXCLUSIVE LICENSE RELATIONSHIP AND JOINT MARKETING
AGREEMENT
THIS SOFTWARE DEVELOPMENT, EXCLUSIVE LICENSE RELATIONSHIP AND JOINT
MARKETING AGREEMENT (the "Agreement") is made and entered this 4th day of May,
2001, by and between EAUTOCLAIMS, INC., a Nevada Corporation ("EAUTOCLAIMS"),
and XXXXX.XXX, INC., a Nevada corporation ("XXXXX.XXX").
WHEREAS, EAUTOCLAIMS has developed a business-to-business Internet
infrastructure that utilizes the Internet to streamline and lower the overall
cost of automotive repairs paid by insurance companies and on corporately owned
fleet vehicles.
WHEREAS, XXXXX.XXX is in the business of designing, producing, and
maintaining Internet web sites and the software to implement and operate such
web sites and continues to develop and maintain a marketplace under the uniform
resource locator xxxx://xxx.xxxxx.xxx.
WHEREAS, EAUTOCLAIMS seeks to establish a exclusive relationship with
XXXXX.XXX's marketplace on the worldwide web for the procurement of automotive
collision parts to automotive body shops and otherwise; and
WHEREAS, EAUTOCLAIMS seeks to have XXXXX.XXX's design team
develop a new look for two of EAUTOCLAIMS' sites under the uniform resource
locator xxxx://xxx.xxxxxxxxxxx.xxx and xxxx://xxx.xxxxxxxxxxxxx.xxx.
WHEREAS, XXXXX.XXX desires to grant to EAUTOCLAIMS, and EAUTOCLAIMS
desires to obtain from XXXXX.XXX, an exclusive license to access, market and
sell XXXXX.XXX's software programs and any enhancements thereto together with
all associated rights and intellectual property pursuant to the terms of this
Agreement; and
WHEREAS, EAUTOCLAIMS desires to grant to XXXXX.XXX, and XXXXX.XXX
desires to obtain from EAUTOCLAIMS, an exclusive license to act as the OEM and
Aftermarket parts procurement company of record for all associated mechanical,
collision and accessory parts, which may be purchased by EAUTOCLAIMS, its body
shops, and insurance companies whom utilize its services and/or software; and
WHEREAS, EAUTOCLAIMS wishes to hire XXXXX.XXX to develop, create, test,
and deliver a software program called Raptor; and
WHEREAS, XXXXX.XXX has developed graphical reporting software called
Xxxxxxxxxx.xxx and EAUTOCLAIMS desires to purchase XXXXX.XXX's rights to
Xxxxxxxxxx.xxx software.
WHEREAS, EAUTOCLAIMS and XXXXX.XXX wish to develop a relationship
pursuant to which each will sell the services offered by the other, pursuant to
the terms and conditions described below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements of the parties set forth herein, XXXXX.XXX and EAUTOCLAIMS hereby
agree as follows:
1. Definitions.
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a. "Software Programs" shall mean XXXXX.XXX's proprietary
software programs known as "Raptor" and "Reallyknow",
including and all related source code, trade secrets,
designs, formulations, know-how, technology, processes, data
files, algorithims, coding sheets, routines, sub-routines,
assemblers, enhancements, updates, modifications,
engineering notes and drawings, specifications, flow charts,
technical manuals, patents, copyrights, trademarks and all
other intellectual property related to, or necessary to
exercise all rights with respect to, said Raptor and
ReallyKnow software programs, excluding any and all hardware
related to Software Programs such as servers, workstations,
kiosks, card readers, card formatters, printers, network
hardware, third party operating systems, third party
algorithms or third party licenses associated with the
Software Programs. Software Programs does not include
TradeMotion, StoreFront or any other software program owned
by or licensed to XXXXX.XXX.
b. "Effective Date" shall mean the date on which the first
deposit was made by EAUTOCLAIMS with XXXXX.XXX, which was
March 23, 2001.
c. "Storefront" "TradeMotion Storefront" and/or "TradeMotion
products" shall mean the XXXXX.XXX proprietary software
program used by Original Equipment Manufacturer (OEM) parts
suppliers and aftermarket parts suppliers to access the
XXXXX.XXX TradeMotion SupplyChain.
d. "Raptor" shall mean the software product to be developed by
XXXXX.XXX to permit the transfer of digital data between
collision industry professionals in need of automotive parts
and supplier members of the XXXXX.XXX system.
2. Software Purchase
a. Software Programs. XXXXX.XXX agrees to sell and EAUTOCLAIMS
agrees to purchase the Software Programs ReallyKnow and
Raptor and all of the intellectual property rights
associated therewith.
b. Suitability for Immediate Use. EAUTOCLAIMS acknowledges that
the Raptor software program has not been developed.
c. Raptor Development. XXXXX.XXX shall be solely responsible
for the development of the Raptor software program, except
that EAUTOCLAIMS agrees to provide all of the data necessary
to develop Raptor to XXXXX.XXX. XXXXX.XXX shall deliver
Raptor, in a final, installation-ready form ready for use by
EAUTOCLAIMS users within one hundred twenty (120) days of
the delivery to Xxxxx.xxx of the technical specifications
for the Raptor Software Program. During the development
process, XXXXX.XXX shall demonstrate completed reasonable
customizations from time to time as reasonably requested by
EAUTOCLAIMS.
d. Intellectual Property Rights to ReallyKnow. XXXXX.XXX shall
convey to EAUTOCLAIMS all right, title, and interest in and
to all work and materials relating to the ReallyKnow
Software Program including the copyright, trade secret
rights, and all other right, title, and interest therein,
and consisting of all existing source code, object code,
documentation, flow charts, design documents, and record and
file layouts relating thereto, and all trademarks, service
marks, logos, trade dress and universal resource locators
associated therewith, if any. This exclusive conveyance
shall include, but is not limited to, the rights to publish,
reproduce, transmit, adapt, prepare derivative works, sell,
or otherwise make use of the software (including all
subsequent additions, revisions, supplements to, and
versions of the software and derivatives, regardless of
length or nature) throughout the world, in any form or
medium and in any language, and to license or otherwise
transfer to others the rights commensurate herewith in
connection with the software.
e. Intellectual Property Rights to Raptor. EAUTOCLAIMS
acknowledges that the Raptor Software Program shall be a
derivative work of the TradeMotion software program owned by
XXXXX.XXX. EAUTOCLAIMS acknowledges that XXXXX.XXX is the
exclusive owner of all intellectual property rights
associated with TradeMotion and nothing in this Agreement
shall be construed to transfer any such rights to
EAUTOCLAIMS. Notwithstanding the foregoing, XXXXX.XXX shall
convey to EAUTOCLAIMS all right, title, and interest in and
to all new and original work and materials relating to the
Raptor Software Program not currently included in the
TradeMotion software program, including the copyright,
patent, trade secret rights, and all other right, title, and
interest therein, and consisting of all existing source
code, object code, documentation, flow charts, design
documents, and record and file layouts relating thereto, and
all trademarks, service marks, logos, trade dress and
universal resource locators associated therewith, if any.
This exclusive conveyance shall include, but is not limited
to, the rights to publish, reproduce, transmit, adapt,
prepare derivative works, sell, or otherwise make use of the
software (including all subsequent additions, revisions,
supplements to, and versions of the software and
derivatives, regardless of length or nature) throughout the
world, in any form or medium and in any language, and to
license or otherwise transfer to others the rights
commensurate herewith in connection with the software.
3. Exclusive Rights to Access, Market and Sell.
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a. TradeMotion Products. XXXXX.XXX grants to EAUTOCLAIMS the
right to market and sell XXXXX.XXX TradeMotion Products in
accordance with the XXXXX.XXX Software Dealer Agreement
attached hereto as Exhibit A and incorporated herein. Said
Software Dealer Agreement shall include the right to include
TradeMotion StoreFront as part of the "EAUTOCLAIMS
Management System." The sales of all TradeMotion products
shall be invoiced by and through XXXXX.XXX.
b. EAUTOCLAIMS Software Products. EAUTOCLAIMS grants to
XXXXX.XXX the right to market and sell EAUTOCLAIMS Products
in accordance with the EAUTOCLAIMS Software Dealer Agreement
attached hereto as Exhibit B and incorporated herein. The
sales of all EAUTOCLAIMS products shall be invoiced by and
through EAUTOCLAIMS.
c. Fulfillment Procedures. The Parties hereto agree to
cooperate in the development of reasonable fulfillment and
implementation procedures related to the respective products
of the parties.
d. Exclusivity of TradeMotion Products. Except as provided
herein and during the term hereof, the rights of EAUTOCLAIMS
to market and sell TradeMotion products shall be exclusive,
except that XXXXX.XXX may also market and sell TradeMotion
products directly to car dealerships and/or automotive
manufacturers.
e. Exclusivity of EAUTOCLAIMS Products. Except as provided
herein and during the term hereof, the rights of XXXXX.XXX
to market and sell EAUTOCLAIMS products shall be exclusive,
except that EAUTOCLAIMS may also market and sell EAUTOCLAIMS
products.
f. Exclusive Access to Claims Area Procurement System.
XXXXX.XXX grants to EAUTOCLAIMS the exclusive right to
access the XXXXX.XXX "Claims Area Procurement System," known
as CAPS. EAUTOCLAIMS may access the CAPS system for the
purpose of marketing and offering CAPS and similar products
to prospective customers and users. XXXXX.XXX shall not
allow any third party including, but not limited to, any
competitor of EAUTOCLAIMS or any other claims organization,
to access the CAPS system, or any similar products, for the
purpose of marketing and allowing use thereof and access
thereto, without the prior written consent of EAUTOCLAIMS,
during the term of this agreement. Nothing herein shall
prohibit XXXXX.XXX from directly accessing, marketing and
otherwise selling the CAPS system.
g. Exclusive Procurement Rights. EAUTOCLAIMS grants and awards
to XXXXX.XXX the exclusive right to procure all automotive
collision and mechanical parts and accessories for both
on-line and off-line sales in connection with all claims
filed with EAUTOCLAIMS. EAUTOCLAIMS shall not partner,
market or recommend the use of another company, whether or
not the company may be internet-based, for the procurement
of automotive parts during the term of this Agreement.
h. Breach of Exclusivity. The Parties acknowledge that a breach
or threatened breach of the exclusivity of the right to
access, market and/or sell products granted in this
Agreement will result in immediate and irreparable harm to
the party receiving that exclusive right, entitling the
party receiving that right to immediate injunctive relief.
The parties further acknowledge that injunctive relief is in
addition to all other remedies at law or in equity available
to the receiving party.
i. Liquidated Damages. The parties agree that the amount of
damages which would be sustained by a party for a breach of
their exclusive rights to market and sell products are
substantial, but not reasonably ascertainable at this time.
It is therefore agreed to by the parties, that the amount of
five million dollars is a fair and proper amount of
liquidated damages. The liability as herein set forth is
fixed as liquidated damages and not as a penalty and this
liability shall be complete and exclusive.
4. Consideration.
--------------
a. ReallyKnow. In consideration for the purchase of the
ReallyKnow Software Program, EAUTOCLAIMS shall pay to
XXXXX.XXX a total of Three Hundred Thousand Dollars
($300,000.00), payable as follows:
1. $5,000 on March 23, 2001; and
2. $45,000 on April 11, 2001; and
3. $50,000 on April 23, 2001; and
4. $50,000 on May 8, 2001; and
5. $50,000 on May 22, 2001; and
6. $50,000 on June 5, 2001; and
7. $50,000 on June 19, 2001.
b. Raptor. In consideration for the purchase of the Raptor
Software Program, EAUTOCLAIMS shall pay to XXXXX.XXX a total
of Sixty Thousand Dollars ($60,000.00), payable as follows:
1. $5,000 on March 23, 2001; and
2. $5,000 on April 11, 2001; and
3. $10,000 on April 23, 2001; and
4. $10,000 on May 8, 2001; and
5. $10,000 on May 22, 2001; and
6. $10,000 on June 5, 2001; and
7. $10,000 on June 19, 2001.
c. TradeMotion Products. For the right to market and sell any
and all TradeMotion products, EAUTOCLAIMS shall pay to
XXXXX.XXX the following:
1. Seventy percent (70%) of all setup and
subscription fees paid to XXXXX.XXX for each
dealership enrolled to receive any TradeMotion
Products; and
2. Fifty percent (50%) of the gross revenue actually
received by XXXXX.XXX generated by all
transactions for the procurement of parts
purchased by EAUTOCLAIMS directly or through
dealerships enrolled by EAUTOCLAIMS; and
3. The amounts paid by EAUTOCLAIMS to XXXXX.XXX
pursuant to Sections 4(c)(1) and 4(c)(2) herein
shall be a minimum of Twenty-Five Thousand Dollars
($25,000.00) per month for the first Calendar
Month for which payment are due. The minimum
amount due shall increase two thousand dollars
($2,000.00) each successive calendar month until
the amount shall reach thirty-five thousand
dollars ($35,000.00), after which it shall remain
at that amount for the remaining term of this
Agreement.
d. EAUTOCLAIMS Software Products. For the sale and placement of
any and all EAUTOCLAIMS Software products by XXXXX.XXX,
EAUTOCLAIMS shall pay to XXXXX.XXX as follows:
1. Thirty percent (30%) of all setup and subscription
fees paid to EAUTOCLAIMS for each dealership
enrolled to receive any EAUTOCLAIMS Products; and
2. Fifty percent (50%) of the gross revenue actually
received by EAUTOCLAIMS generated by all
transactions through dealerships enrolled by
XXXXX.XXX.
e. Settlement. Payments to the respective parties pursuant to
this section shall be made by wire transfer not later than
the last business day of the calendar month following the
calendar month in which funds generated by the transaction
were actually received. Payments to either party hereto not
made when due, shall bear interest, compounded monthly at a
rate of one percent (1%) per month, or the highest rate then
lawful, whichever is lower, from the date the payment was
due until it is received by the party due such payment
f. Accounting. For purposes of validating payments made and
paid for under this Agreement, each party reserves the
right, at its own expense, to inspect the invoice, financial
records and/or any other documents that reveal revenues
generated by the products described in Section 3 herein.
Each party shall make available such documents during normal
hours of business, and for at least 2 years following the
termination of this Agreement.
5. Customizations of Software Programs; Installation; Technical Services.
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a. Installation of Software Programs. As part of its
consideration herein and with no further costs to
EAUTOCLAIMS, XXXXX.XXX shall install the Software Programs
on EAUTOCLAIMS' computer systems and shall tests to insure
the Software Program operate in accordance with the
technical specifications attached hereto as Exhibit C.
Installation shall be completed by XXXXX.XXX no later than
six (6) months from the Effective Date of this Agreement.
b. Customization of Raptor Software Program. As part of its
consideration herein and with no further costs to
EAUTOCLAIMS, XXXXX.XXX shall configure the Client version of
the Raptor Software Program within the EAUTOCLAIMS computer
system to be available for download to EAUTOCLAIMS' body
shops Members.
c. Technical Services. As part of its consideration
herein and with no further costs to EAUTOCLAIMS,
for the first six months after the Effective Date
of this Agreement, XXXXX.XXX shall provide
technical services to (a) update and re-code
EAUTOCLAIMS' website in accordance with reasonable
specifications and design requirements provided by
EAUTOCLAIMS, and (b) develop a new website named
XXXXXXXXXXXXX.XXX under the direction and control
of EAUTOCLAIMS in accordance with reasonable
specifications and design requirements provided by
EAUTOCLAIMS.
6. Term of Agreement; Termination.
------------------------------
a. Term. The term of this Agreement shall be five (5) years,
beginning on the Effective Date hereof, unless terminated by
either party for "cause," as defined herein.
b. Termination for Cause. Either party hereto may terminate
this Agreement for "cause," such cause being limited to any
uncured material breach by the other party of its
obligations under this Agreement, including but not limited
to any party filing for bankruptcy or being adjudicated
insolvent.
c. Notice of Cause/Breach. The Notice of Cause/Breach shall
describe such breach or cause in such particularity as to
provide the receiving party with reasonable notice of the
alleged breach or cause.
d. Cure of Cause/Breach. The party receiving Notice of
Cause/Breach shall have thirty (30) days from the receipt of
notice of Cause/Breach to cure the alleged Cause/Breach or
otherwise reasonable dispute such alleged Cause/Breach
exists.
e. Bankruptcy by XXXXX.XXX. In the event of XXXXX.XXX's
bankruptcy, insolvency, or other inability to host the
TradeMotion system, upon reasonable notice, XXXXX.XXX shall
make its best efforts to permit EAUTOCLAIMS to utilize a
third party internet host, determined by EAUTOCLAIMS, to
host TradeMotion until such time as XXXXX.XXX has the
ability to host the TradeMotion system.
7. Intellectual Property and other Confidential Information.
---------------------------------------------------------
a. Nondisclosure of Intellectual Property and Other
Confidential Information. The parties hereto acknowledge and
recognize that, in connection with the performance of their
duties and obligations hereunder, each has and will have
access to certain intellectual property and other
confidential information of the other, including, but not
limited to, the identity of clients, the identity of
prospective clients, the existence of negotiations with
prospective clients of the parties, all drawings, records,
sketches, models, financial information, customer
information, trade secrets, product development, software,
source codes and micro codes (hereinafter referred to as the
"Confidential Information"). The parties hereto hereby
acknowledge that the maintenance of the confidentiality of
the Confidential Information and restrictions on the use of
the Confidential Information is essential to the parties
hereto. The parties hereto shall not, at any time, whether
during the term of this Agreement or after the termination
hereof for any reason whatsoever, divulge or reveal any of
the Confidential Information to any person, party or entity,
directly or indirectly. In addition, the parties hereto
shall not utilize any of the Confidential Information for
either of their respective benefit, for the benefit of any
subsequent employer or competitor of such party. The parties
hereto shall maintain the Confidential Information in strict
confidence and shall not copy, duplicate or otherwise
reproduce, in whole or in part, such Confidential
Information, except as necessary for such party to perform
services pursuant to this Agreement. Upon the termination
hereof each party hereto shall immediately surrender to the
other any and all memoranda, records, files or other
documents and any other materials (including photocopies or
other reproductions) relating to the Confidential
Information. The parties hereto shall indemnify and hold the
other harmless from any loss, damage, expense, cost or
liability arising out of any unauthorized use or disclosure
of the Confidential Information. Both parties agree that
they will not disclose the fact that they have entered into
or terminated this Agreement, nor any provisions hereof, or
use the other's name, trademarks or service marks in
connection with any advertising or promotional activity
unless the other gives its prior written consent to such
disclosure or use of its name in each instance. The parties
will develop a joint communique or press release to be
released after approval of this Agreement. The provisions of
this Section shall survive the termination of this
Agreement.
b. Use of XXXXX.XXX Intellectual Property. The parties hereto
acknowledge that XXXXX.XXX is granting a non-transferable
restricted license to EAUTOCLAIMS for the use of TradeMotion
products. EAUTOCLAIMS acknowledges that XXXXX.XXX
exclusively owns all TradeMotion product intellectual
property. XXXXX.XXX licenses EAUTOCLAIMS to utilize
TradeMotion products for the sole purpose of displaying the
products offered for sale by XXXXX.XXX and EAUTOCLAIMS on
each of their respective private websites. XXXXX.XXX shall
retain all ownership of and right to utilize all TradeMotion
products, and all related software and technology in
connection with XXXXX.XXX's own business. EAUTOCLAIMS agrees
that it will not challenge the ownership, title and/or
rights of XXXXX.XXX related to any TradeMotion product.
EAUTOCLAIMS shall not at any time acquire any ownership
rights to such property by virtue of any of its duties or
rights described in this Agreement. EAUTOCLAIMS shall not
disclose any information associated with any property or
information owned or controlled by XXXXX.XXX to any third
parties without the written consent of XXXXX.XXX, except
with respect to the presentation of the functionality of
such property for the purpose of the sale of services
generally sold by EAUTOCLAIMS.
c. Non-Pirating of Software. The parties shall not reverse
engineer, decompile, disassemble or otherwise attempt to
derive the Source Code/Microcode of any software delivered
by either party in Object Code form from the others. Nothing
in this Agreement shall otherwise prevent EAUTOCLAIMS from
independently developing its own unique system and source
code to perform similar functions as those contemplated for
Raptor. Neither party shall remove or modify any notices or
legends contained in or placed upon any technological,
software or other property of either of the parties hereto
without the express written consent of such consenting
party.
d. Work for Hire. All results of the services performed by
XXXXX.XXX in the development of the Raptor Software Program
and the customization of the ReallyKnow Software Program
hereunder, in any form, shall be work for hire. EAUTOCLAIMS
shall own the exclusive, entire right, title and interest in
and to any such developments or improvements.
e. Survivability. The provisions of this Section shall survive
the termination of this Agreement.
8. Release. Each party hereto releases the other from any liability
associated with any inaccuracies or errors in the information
furnished by the furnishing party which was unintentional and not
reasonably obvious to the producing party.
9. Injunctive Relief. The parties hereto acknowledge that (i) each would
be irreparably harmed as a result of a breach by the other of the
provisions of this Agreement, (ii) no amount of money would adequately
compensate the non-breaching party for such harm, and (iii) it would
be difficult, if not impossible, to calculate the monetary damages
which might accrue to the non-breaching party as a result of such
breach. The breaching party therefore agrees that in the event of any
breach or contemplated breach of the terms or provisions of this
Agreement, the non-breaching party shall be entitled to obtain an
injunction or similar equitable relief against the breaching party
from any court of competent jurisdiction in order to enforce the
provisions hereof. Notwithstanding the foregoing, the non-breaching
party shall also be entitled to obtain monetary damages to the extent
calculable as a result of the breach by the breaching party of the
provisions of this Agreement.
10. Indemnity. Each party hereto ("Indemnitor") shall indemnify, defend
and hold harmless the other party hereto, its officers, directors,
employees, agents, shareholders, others (collectively "Indemnitee")
against and in respect of any and all claims, settlements, demands,
losses, costs, expenses, obligations, liabilities, damages,
recoveries, and deficiencies, including interest, penalties and
reasonable attorneys' fees and disbursements (including, but not
limited to, any attorneys' fees and disbursements incident to any
appeals), that Indemnitee may incur or suffer which arise, result
from, or relate to either (i) any breach of or failure by the
Indemnitor to perform any of its duties and/or responsibilities
described in this Agreement or other instrument furnished or to be
furnished by the Indemnitor under this Agreement, (ii) any action (or
failure to act) of Indemnitor, including, without limitation,
noncompliance with any local, federal and state statutes, rules and
regulations, or (iii) any transfer to third parties or
misappropriations of any proprietary information of Indemnitee.
Indemnitor shall promptly notify Indemnitee of the existence of any
claim, demand or other matter to which the Indemnitee's
indemnification obligations would apply, and shall give Indemnitee a
reasonable opportunity to defend the same at Indemnitor's expense and
with counsel of Indemnitee's selection; provided that Indemnitee shall
at all times also have the right to fully participate in the defense
at its expense. If Indemnitor shall, within five (5) days after such
notice, fail to initiate such a defense, Indemnitee shall have the
right, but not the obligation, to undertake the defense of, and to
compromise or settle the claim or other matter on behalf, for the
account, and at the risk of the Indemnitor.
11. Survival. The terms, conditions, obligations and covenants of this
Agreement shall survive its execution by the parties hereto and the
execution of all contracts hereafter entered into between the parties
hereto except to the extent that such transactions and contracts may
be inconsistent with this Agreement.
12. Title to Software Programs. XXXXX.XXX has good and marketable title to
the Software Programs, free and clear of restrictions or conditions on
the licensing or assignment thereof, and free and clear of mortgages,
liens, pledges, charges, encumbrances, equities, claims, covenants,
conditions or restrictions of any kind whatsoever, except for the lien
granted to EAUTOCLAIMS and attached hereto as Exhibit D. XXXXX.XXX has
granted no licenses or rights of any kind to third parties relating to
any of the Software Programs.
13. Litigation. There are (i) no actions, proceedings or investigations
pending or, to the best knowledge of XXXXX.XXX after due inquiry,
threatened, or verdicts or judgments entered against XXXXX.XXX or any
officer thereof, before any court or before any administrative agency
or officer, the existence of which would materially detract from the
value of the Software Programs to EAUTOCLAIMS, or (ii) to the best
knowledge of XXXXX.XXX, no violations by XXXXX.XXX of any foreign,
state or local laws, regulations or orders which would materially
detract from the value of the Software Programs to EAUTOCLAIMS.
14. No Infringement. XXXXX.XXX represents and warrants that the Software
Programs do not infringe upon or violate any United States or foreign
patent, copyright, trademark or trade secret of any third party.
15. Full Disclosure. All information relating to the Software Programs has
been or will be delivered to EAUTOCLAIMS. XXXXX.XXX warrants that the
specifications to be delivered to EAUTOCLAIMS are in sufficient detail
to enable EAUTOCLAIMS to use and maintain the Software Programs.
16. Warranty. XXXXX.XXX warrants that the Software Programs conform to,
and will operate in accordance with, the written specifications and
documentation provided to EAUTOCLAIMS hereunder and are free from
material defects. In the event the Software Programs do not operate in
accordance with said specifications or contain material defects,
XXXXX.XXX shall promptly provide technical services at no charge to
EAUTOCLAIMS in order to correct such operational problems or material
defects.
17. Limitation of Liability. EXCEPT AS SET FORTH ABOVE, XXXXX.XXX MAKES NO
REPRESENTATION OF ANY KIND REGARDING THE SOFTWARE PROGRAMS, AND
SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR
ANY PARTICULAR PURPOSE AND ANY WARRANTY OF MERCHANTABILITY.
18. Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, and
venue for any legal proceeding or action at law arising out of or
construing this Agreement shall lie in the state courts of Pinellas
County, Florida, for judicial acceptance of award and an order of
acceptance as the case may be.
19. Attorney's Fees and Costs. In the event a dispute arises between the
parties hereto and suit is instituted, the prevailing party in such
litigation shall be entitled to recover reasonable attorney's fees and
other costs and expenses from the non-prevailing party, whether
incurred at the trial level or in any appellate proceeding.
20. Severability. If any provision of this Agreement shall be declared
invalid or unenforceable by a court of competent jurisdiction, the
invalidity or unenforceability of such provision shall not affect the
other provisions hereof, and this Agreement shall be construed and
enforced in all respects as if such invalid or unenforceable provision
was omitted.
21. Completeness of Agreement. All understandings and agreements heretofore
made between the parties hereto with respect to the subject matter of
this Agreement are merged into this document which alone fully and
completely expresses their agreement. No change or modification may be
made to this Agreement except by instrument in writing duly executed by
the parties hereto with the same formalities as this document.
22. Notices. Any and all notices or other communications provided for
herein shall be given in writing and shall be (i) delivered by hand, or
(ii) delivered through the United States mail, postage prepaid,
certified or registered, return receipt requested, or (iii) delivered
through Federal Express, Express Mail, Airborne, Xxxxx or other
expedited mail or courier service which provides proof of delivery,
addressed as follows:
If to XXXXX.XXX: XXXXX.XXX, Inc.
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, President
With copy to: Xxxxx Xxxxxxx & Associates
000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
If to EAUTOCLAIMS: EAUTOCLAIMS, Inc.
2708 U.S. Alternate 00 Xxxxx
Xxxxx 000
Xxxx Xxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx, President
With a copy to: Johnson, Blakely, Xxxx & Xxxxx, P.A.
Clearwater Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-
Attention: Xxxx Xxxxxx,
Legal Counsel
Any party may, from time to time, give notice to the other party of
some other address to which notices or other communications to such
party shall be sent, in which event, notices or other communications
to such party shall be sent to such address. Any notice or other
communication shall be deemed to have been given and received
hereunder as of the date the same is actually hand delivered or, if
mailed, when deposited in the United States mail, postage prepaid,
registered or certified, return receipt requested.
23. Assignment. Neither party hereto may assign its rights or obligations
hereunder without the prior written consent of the other party hereto.
In the event of a sale of the business of either party hereto to a
third party (whether by sale of all or a majority of its issued and
outstanding shares of stock, by merger or reorganization, or by a sale
of all or substantially all of its assets), then the covenants and
provisions contained herein shall be assigned by such party to such
third party purchaser without the prior written consent of the other
party.
24. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the respective parties hereto, their heirs, legal
representatives, successors and permitted assigns.
25. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and all of which shall
constitute but one and the same instrument.
26. Bankruptcy and Source Code Escrow. In the event a petition for
involuntary bankruptcy is filed against XXXXX.XXX and is not dismissed
within thirty (30) days, or upon XXXXX.XXX filing a voluntary petition
under any section of the United States Bankruptcy Code ("Code"), the
following terms shall apply (i) EAUTOCLAIMS may exercise, and
XXXXX.XXX agrees not to contest EAUTOCLAIMS' exercise of, any rights
that may be available to creditors under the Code, including, without
limitation, any rights EAUTOCLAIMS may have under Section 365(n)
thereof; or (ii) EAUTOCLAIMS may contract directly with current and
former employees and consultants of XXXXX.XXX for technical services
notwithstanding the provisions of any non-competition agreements or
other contractual restrictions that may be in effect with respect to
such individuals, but limited to the Software Programs as herein
defined; or (iii) Third parties selected by EAUTOCLAIMS may assume and
perform any of XXXXX.XXX's warranty and service obligations under this
Agreement without violating any of the terms and conditions of this
Agreement and XXXXX.XXX waives any infringement claims it may have
with respect to the work product of such third parties; and (iv)
EAUTOCLAIMS may obtain a copy of the Source Code as set forth below.
Upon execution of this Agreement by both parties, XXXXX.XXX shall
place one complete copy of the source code for the Software Programs
and for CAPS ("Source Code") in escrow with a third-party escrow agent
selected by EAUTOCLAIMS. The parties shall execute an escrow agreement
with the escrow agent which shall provide, among other things, that
the Source Code shall be released to EAUTOCLAIMS without charge upon
(i) a bankruptcy event as set forth above; (ii) the sale of XXXXX.XXX
to, or the merger of XXXXX.XXX with, any entity other than
EAUTOCLAIMS; (iii) any change in control of XXXXX.XXX, except if
control is obtained by EAUTOCLAIMS; or (iv) the failure to pay
applicable escrow charges to the escrow agent. Applicable charges for
escrowing the source code shall be the responsibility of XXXXX.XXX.
27. Captions. The captions appearing in this Agreement are inserted only
as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any provisions of this Agreement or in
any way affect this Agreement.
28. Waiver. Any failure by either party to enforce any of the provisions
of this Agreement shall not constitute a waiver and shall not preclude
either party from requiring strict compliance at any future time.
29. Time. Time is of the essence in all matters pertaining to this
Agreement.
30. Force Majeure. Neither party shall be responsible for delays or
failures on performance resulting from acts beyond the control of such
party. Such acts shall include but not be limited to acts of God,
strikes, lockouts, riots, acts of war, epidemics, government
regulations superimposed after the fact, fire, communication line
failures, power failures, earthquakes or other disasters.
31. Drafting. The fact that one of the parties hereto may have drafted or
structured any provision hereof shall not be considered in construing
the particular provision either in favor of, or against, such party.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the first date written above.
XXXXX.XXX, INC. EAUTOCLAIMS, INC.
By: By:
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Print Name: Print Name:
-------------------------------- --------------------------------
Its: Its:
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EXHIBIT A
TradeMotion Products Dealer Agreement
EXHIBIT B
EAUTOCLAIMS Products Dealer Agreement
EXHIBIT C
Technical Specifications for Software Programs
EXHIBIT D
EAUTOCLAIMS lien on Software Programs
MTC/ej/241778
