EXHIBIT 5.5
SERVICE SUPPLY AGREEMENT
THIS AGREEMENT entered into as of June 8, 1998 (Effective Date) between
StorageTek Canada, Inc., having its principal place of business at 0000 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxx and Reconnaissance International Ltd., a
company under the laws of the British Virgin Islands, concerns the provision of
remote data management services by StorageTek to RIL and End-Users.
WITNESSES THAT IN CONSIDERATION of $10 now paid by RIL to StorageTek, the
receipt and sufficiency of which StorageTek hereby acknowledges, the parties
hereby covenants and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions. In this Agreement the following words and phrases have the
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following meanings:
a) "End-User" means any customer of RIL and RIL's Business who uses the
Services.
b) "RIL" means Reconnaissance International Ltd. and any of its agents or
licensees which sign the Adhesion Agreement set out as Schedule E.
c) "RIL's Business" means the business of providing remote data backup,
data restoration services, and hardware replacement of notebook
computers to End-Users.
d) "Service Fees" means fees payable to StorageTek determined in
accordance with Schedule A to this Agreement, which amounts do not
include any Taxes.
e) "Services" means the supply of remote data management services and the
provision of the StorageTek Software to RIL and End-Users, as more
particularly described in Schedule B to this Agreement.
f) "StorageTek" means StorageTek Canada, Inc.
g) "StorageTek Software" means the software listed and described in
Schedule C to this Agreement.
h) "Taxes" means all federal, provincial or local sales, use, goods and
services or other taxes, customs duties, or similar tariffs and fees
which StorageTek may be required to pay or collect upon the delivery
of the Services, but does not include any income taxes payable by
StorageTek.
1.2 Term. The term of this Agreement shall commence on the Effective Date and
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shall expire on the second anniversary of the Effective Data unless
terminated earlier in accordance with Article 4 (Termination) of the
Agreement; provided, however, that the term of this Agreement will
automatically extend for successive twelve-month periods after the second
anniversary of the Effective Date unless either of the parties notifies the
other party in writing at least three months prior to such date, or the end
of any twelve-month extension period, as the case may be, that this
Agreement will not be so extended.
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1.3 Amendment. No modification, change or amendment to this Agreement, nor any
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waiver of any rights in respect hereto, shall be made by either party
unless agreed to in writing by the other party. The waiver of one breach of
default hereunder shall not constitute the waiver of any subsequent breach
or default.
1.4 Relationship of Parties. The relationship of StorageTek and RIL established
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by this Agreement is that of independent contractors, and nothing contained
in this Agreement shall be construed to (a) give either party the power to
direct and control day-to-day activities of the other or (b) constitute the
parties as partners, joint ventures, co-owners or otherwise as participants
in a joint or common undertaking. RIL, its agents and employees are not the
representatives of StorageTek for any purpose except as expressly set forth
in this Agreement, and they have no power or authority as agent, employee
or in any other capacity to represent, act for, bind or otherwise create or
assume any obligation on behalf of StorageTek for any purpose whatsoever.
In all matters relating to this Agreement, neither RIL nor its employees,
or agents are, or shall act as, employees of StorageTek within the meaning
or application of any laws of any country or other jurisdiction covering
unemployment insurance, old-age benefit, social security, workers'
compensation or industrial accidents or under any other laws or regulations
which may impute any obligations or liabilities to StorageTek by reason of
an employment obligation. All financial obligations associated with RIL
business are the sole responsibility of RIL. All collection of invoices or
other Agreements between RIL and its End-Users are RIL exclusive
responsibility and shall have no effect on RIL obligations under this
Agreement. RIL shall be solely responsible for, and shall indemnify and
hold StorageTek harmless from any and all claims by others, costs and
damages (including the attorneys' fees at trial and on appeal) arising out
of the acts of any RIL employees, servants, or agents.
1.5 Entire Agreement. This Agreement constitutes the entire agreement between
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the parties with respect to the matters addressed herein and supersedes all
prior or contemporaneous understandings or agreements, written or oral,
regarding such subject matter. No amendment to or modification of this
Agreement will be binding unless in writing and signed by a duly authorized
representative of StorageTek and RIL.
1.6 Controlling Law and Severability. This Agreement shall be governed by and
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construed in accordance with the laws of the Province of Ontario. If for
any reason a court of competent jurisdiction finds any provision of this
Agreement or portion thereof, to be unenforceable, that provision of the
Agreement shall be enforced to the maximum extent permissible so as to
effect the intent of the parties, and the remainder of this Agreement shall
continue in full force and effect.
1.7 Force Majeure. Neither party shall be responsible for any failure to
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perform (other than payment obligations) due to unforeseen circumstances or
to causes beyond a party's control, including but not limited to acts of
God, war, riot, embargoes, acts of civil or military authorities, fire,
floods, accidents, strikes, or shortages of transportation, facilities,
fuel, energy, labour or materials. In the event of any such delay,
StorageTek may defer the delivery date of orders for Services for a period
equal to the time of such delay.
1.8 Section Headings. The section headings contained herein are for reference
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only
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and shall not be considered substantive parts of this Agreement. The use of
the singular or plural form shall include the other form and the use of the
masculine, feminine or neuter gender shall include the other genders.
1.9 Schedules. The following schedules are attached to and form an integral
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part of this Agreement:
Schedule A Service Fees
Schedule B Services
Schedule C Software
Schedule D End-User License
Schedule E Licensee Adhesion
ARTICLE 2
APPOINTMENT OF STORAGETEK AS SUPPLIER
2.1 Appointment. RIL hereby appoints StorageTek as its non-exclusive supplier
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for the Services and StorageTek covenants to supply the Services and the
StorageTek Software throughout the term of this Agreement, for the purposes
of RIL's business in accordance with this Agreement and all Schedules
attached hereto.
2.2 Non-Competition by StorageTek. StorageTek covenants with RIL that during
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the term of this Agreement StorageTek will not compete, directly or
indirectly, with RIL with respect to RIL's Business as outlined in this
Agreement. StorageTek will not provide the Services to persons with the
expressed intent to compete with RIL with respect to RIL's Business.
StorageTek will notify RIL, in writing, immediately upon learning of any
person whom will be competing with RIL with respect to RIL's Business.
2.3 Service Fees. RIL will pay the Service Fees to StorageTek monthly in
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arrears. RIL shall pay StorageTek for Services in Canadian dollars within
30 days from the date of invoice by StorageTek. StorageTek will provide,
monthly, a master invoice which will include a list of all End-User
accounts for the previous month. RIL will pay all Taxes properly due in
respect of the Services.
2.4 Minimum Annual Service Fee Requirements. RIL will ensure that the total
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amount of Service Fees paid to StorageTek during each calendar year is
equal to or exceeds the minimum annual service fee requirement set out in
Schedule A (the "Minimum Annual Service Fee Requirements").
2.5 Late Payment Penalty. If any amount payable or to be remitted with respect
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to Service Fees is not paid when due, interest shall accrue and be paid on
such amount, calculated for each day from such due date until such amount
is paid in full, at a rate per annum equal to twelve percent (12%). Such
interest shall be paid on demand, both before and after default, demand and
judgement, with interest on overdue interest at the same rate. All
calculations of interest under this Agreement shall be paid daily, based on
monthly compounding, on the basis of a 365 or 366 day year, as applicable.
2.6 Price Protection. As of each anniversary of the Effective Date StorageTek
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may
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increase the Service Fees for the following 12 month period provided that
StorageTek will have given RIL:
a) in the event of a proposed increase up to 15% over the level of the
Service Fee for the preceding 12 month period, at least 30 days prior
written notice; and
b) in the event of a proposed increase more than 15% over the level of the
Service Fee for the preceding 12 month period, at least 90 days prior
written notice.
2.7 Provision of Information. StorageTek shall, at its own cost, provide RIL
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with (a) information regarding changes and innovations in the performance,
serviceability, use and application of all Services and StorageTek Software
and (b) data, product brochures and manuals in support of the Services and
StorageTek Software.
2.8 Training. StorageTek shall, at its own cost, provide RIL with training in
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the use of the Services for that number of persons annually chosen by RIL
and agreed upon in writing by both parties, provided RIL pays all salaries,
travel and other out-of-pocket expenses of RIL personnel taking part in
such training. StorageTek shall make all of its training materials
available to RIL.
2.9 Support by StorageTek. StorageTek shall provide telephone support services
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to RIL and End-Users for the Services. StorageTek's support telephone
number will be available 24 hours each day, including weekends and
holidays. StorageTek will respond to RIL and End-Users in accordance with
StorageTek's normal business practices of providing such services to its
customers.
2.10 Response Time. StorageTek will respond within a reasonable time by
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electronic mail, facsimile or telephone to any question received from RIL
concerning resolution of software problems. If the problem is not resolved
within one business day, StorageTek will confirm escalation of the problem
situation and nominate a contact for RIL at StorageTek.
2.11 Reports. StorageTek will provide RIL with written reports showing:
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a) detailed monthly usage by each End-User;
b) daily exception report indicating those End-Users who have not properly
accessed the Services or for which other discrepancies have been
identified; and
c) a weekly new End-User report indicating each new End-User.
2.12 Association of End-Users with RIL Agents. RIL will notify StorageTek of
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every RIL Agent (as that term is defined in Schedule E) who has primary
responsibility for any End-User and the names of such End-Users. RIL shall
ensure that no RIL Agent or Licensee will provide any of the Services to
End Users until such Agent or Licensee has signed and delivered to
StorageTek an Adhesion Agreement in the form set out as Schedule E.
ARTICLE 3
IP ISSUES, CONFIDENTIALITY AND LIMITATION OF LIABILITY
3.1 License to StorageTek Software. StorageTek hereby grants to RIL a royalty-
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free, non-exclusive, personal, non-transferable, non-assignable, limited
license to reproduce, license, sublicense or otherwise distribute, and have
reproduced,
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licensed, sublicensed or otherwise distributed, to and by third parties,
object code versions of the StorageTek Software to be used by End-Users in
connection with the Services. RIL agrees to provide the StorageTek Software
to End-Users only in accordance with the End-User License set out as
Schedule D to this Agreement.
3.2 Ownership. Except as expressly licensed to RIL in section 3.1, StorageTek
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retains all right, title and interest in and to the StorageTek Software.
Except as expressly granted in this Agreement, RIL shall have no other
rights in the StorageTek Software and under no circumstances will anything
in this Agreement be construed as granting, by implication, estoppel or
otherwise, a license to any StorageTek technology other than the StorageTek
Software.
3.3 Ownership of StorageTek Software. The StorageTek Software shall be and
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remain the property of StorageTek or third parties from whom StorageTek has
obtained a licensing right. The StorageTek Software constitutes StorageTek
trade secrets and confidential information (hereinafter "Confidential
Information") of StorageTek and its licensors. RIL shall not make
Confidential Information available in any form to any person other than RIL
employees whose job performance requires such access and to End-Users in
strict accord with this Agreement. RIL shall take appropriate action to
protect the confidentiality of and to ensure that any person permitted
access to the Confidential Information does not provide or disclose it to
others. This subsection shall survive the termination of this Agreement.
3.4 No Rights in Marks. Except as otherwise stated in this Agreement, RIL
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obtains no rights in relation to StorageTek's trademarks and has no right
to sublicense the use or give any third party any consent to use or
register a name or xxxx. StorageTek obtains no rights in relation to RIL's
Business, name or any of its trademarks and has no right to sublicense the
use or give any third party any consent to use or register a name or xxxx.
3.5 Right to use Name. RIL and StorageTek shall each be entitled during the
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Term without charge to use the name and trademarks of the other party in
its advertising, promotions, marketing documents, sales information and
similar materials (in physical or electronic media) for the limited purpose
only of disclosing to the public that StorageTek provides the Services,
provided that each party will advise the other in advance before using any
such name or trademarks and give the other party an opportunity to review
the manner in which they will be used, it being recognized that each party
is entitled to control the manner in which its name and trademarks are
used.
3.6 No Authority. Neither RIL nor StorageTek shall act in any manner that would
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expose the other party to any liability, nor pledge nor purport to pledge
credit of the other party. Neither will, unless agreed to by the other
party, describe itself as associated with the other party in
correspondence, commercial documents and on any name place or sign on its
premises which describes or relates to the Services or RIL's Business.
3.7 Confidentiality. Each party acknowledges that by reason of its relationship
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with the other under this Agreement it will have access to certain
information and materials concerning the other party and its affiliates and
their business, plans, End-Users and services which are confidential and of
substantial value to each party, and which value would be impaired if such
information were disclosed to
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third parties. Each party agrees that it shall not disclose or use in any
way for its own account or the account of any third party or disclose to an
employee who has no need to know or any third party any such confidential
information, which is revealed to it by the other party or any of its
subsidiaries. Each party will take every reasonable precaution to protect
the confidentiality of such information. In the event of termination of the
Agreement, there shall be no use or disclosure by either party of any
confidential information of the other or any of its subsidiaries, and the
provisions of this Section shall survive termination or expiration for any
reason.
3.8 Limited Rights. This license does not entitle RIL or any End-User to
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receipt or use of the source code for the StorageTek Software.
3.9 Claims. RIL will notify StorageTek in writing of any claim or proceeding
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involving the Services within 10 calendar days after RIL learns of such
claim or proceeding. RIL will report promptly to StorageTek all claimed or
suspected defects in the Services.
3.10 Defense of Claims. StorageTek shall, at its option and expense, defend or
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settle any action brought against RIL alleging that any StorageTek Software
infringes a Canadian patent or copyright. StorageTek will pay any costs and
damages finally awarded against RIL that are attributable to such claim,
provided that RIL (a) notifies StorageTek upon discovery of such claim or
action, in writing, (b) provides StorageTek all reasonable information and
assistance to settle or defend the action, and (c) grants StorageTek sole
authority and control of the defence or settlement of the action.
3.11 StorageTek Options. In lieu of the provisions of section 3.10, if an
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infringement claim is made, or in StorageTek's opinion is likely to be
made, StorageTek may at its option and expense either (a) replace or modify
the infringing StorageTek Software or other protected intellectual
property, so that it becomes non-infringing or (b) procure for RIL and End-
Users the right to continue using the infringing intellectual property.
3.12 Use With Other Software. StorageTek shall have no liability if the alleged
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infringement is based upon (a) the combination of the StorageTek Software
with any product not furnished by StorageTek to RIL, (b) the modification
of the StorageTek Software other than by StorageTek, (c) the use of the
StorageTek Software as part of any infringing process, or (d) the use of
other than a current unaltered release of the StorageTek Software.
3.13 LIMITATION OF LIABILITY. STORAGETEK'S ENTIRE LIABILITY UNDER THIS
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AGREEMENT SHALL BE LIMITED TO THE "EFFECTIVE LIMIT OF LIABILITY", TOGETHER
WITH RIL'S COSTS IF RIL SHOULD BE REQUIRED TO RESPOND TO ANY ALLEGED CLAIM
OR SUIT. THIS SECTION STATES STORAGETEK'S ENTIRE LIABILITY AND THE SOLE AND
EXCLUSIVE REMEDY OF RIL WITH RESPECT TO ALLEGED INFRINGEMENT BY ANY
SOFTWARE PROVIDED BY STORAGETEK OR ITS LICENSORS.
3.14 Waiver of Claims against Suppliers. Neither StorageTek nor any of its
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suppliers including any data centre operators or storage service utility
centre operators is assuming any responsibility or liability under this
Agreement for any damage to or any alteration, loss or destruction of the
information or data of third parties including RIL or the End-Users. RIL
hereby waives and will require that each
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End-User waive all claims against facility operators or storage service
utility centre operators based on or arising from or in connection with any
of the Services, whether such claims arise by negligence, willful
misconduct or otherwise.
3.15 StorageTek Indemnity. RIL shall indemnify StorageTek (including reasonable
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solicitors' fees and costs of litigation at trial and appeal) against and
hold StorageTek harmless from, any and all claims by any other party
resulting from RIL's acts, omissions or misrepresentations.
3.16 Software Representation. StorageTek warrants to RIL that the StorageTek
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Software, when installed in accordance with StorageTek's installation
instructions, will not fail to execute their programming instructions due
to defects in material and workmanship in the media and will substantially
conform to the specifications in the applicable user manual that
accompanies shipment of the StorageTek Software for a period of 90 days
after receipt. StorageTek does not warrant that the StorageTek Software
will meet RIL's requirements or that operation of the StorageTek Software
will be uninterrupted or error free. For all defects reported to StorageTek
within the warranty period, the liability of StorageTek is limited to
responding to RIL software problem reports according to StorageTek's
standard assistance practices. This warranty shall not be valid if the
StorageTek Software has been subjected to abuse, misuse, accident,
alteration, neglect, unauthorized repair, unauthorized installation or
exposed to conditions beyond the manufacturer's environmental, power or
operating constraints.
3.17 NO OTHER WARRANTIES. EXCEPT AS PROVIDED IN THIS SECTION, STORAGETEK MAKES
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NO WARRANTIES, EXPRESS OR IMPLIED, TO RIL WITH RESPECT TO THE STORAGETEK
SOFTWARE INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL STORAGETEK BE LIABLE FOR
CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY NATURE, AND
STORAGETEK'S LIABILITY ON ANY CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED
WITH, OR RESULTING FROM THIS AGREEMENT, SHALL IN NO CASE EXCEED THE
"EFFECTIVE LIMIT OF LIABILITY". STORAGETEK SHALL NOT BE LIABLE TO RIL FOR
DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON
ACCOUNT OF THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH THIS
AGREEMENT.
3.18 Effective Limit of Liability. In this Agreement, "Effective Limit of
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Liability" means with respect to claims arising in each twelve month period
commencing on an anniversary of the Effective Data (each a "Services
Year"), the amount by which: (x) three times the average monthly amount
paid by RIL to StorageTek for Services under this agreement in the prior
Services Year (for the purposes of this Section 3.17, the period commencing
on the Effective Date and ending on the day prior to the first anniversary
of the Effective Date will be deemed to be a prior "Services Year") exceeds
(y) the total of all amounts paid by StorageTek in respect of claims
arising prior to the Services Year.
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ARTICLE 4
TERMINATION
4.1 Option to Terminate with Cause. Either party to this Agreement shall be
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entitled, at its sole option, to terminate this Agreement by notice in
writing if the other party (the "Breaching Party") commits any material
breach of its obligations under this Agreement which is not remedied within
30 days after written notice has been given to the Breaching Party.
Material breaches shall include, but not be limited to:
a) any act of the Breaching Party that impairs the goodwill associated
with the business of the other party;
b) failure by StorageTek to provide the Services or the StorageTek
Software to RIL or any End-Users;
c) failure by RIL to pay Services Fees when due or to meet its Minimum
Annual Service Fee Requirements; or
d) any breach by the other party of the confidentiality or non-competition
provisions in this Agreement.
e) any supply or use by an RIL Agent or Licensee of the Services without
having signed and delivered to StorageTek an Adhesion Agreement in
the form set out as Schedule E.
4.2 Option to Terminate without Cause. StorageTek shall be entitled, at its
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sole option, to terminate this Agreement by notice in writing on 60 days
written notice if RIL undergoes material changes in its business.
StorageTek will cooperate fully with RIL and any third party (the
"Successor") that RIL may appoint to replace StorageTek in providing the
Services by uploading all electronic files, End-User information, data and
other material to RIL or the Successor to ensure that the Successor is able
to continue to provide the Services with a minimum of interruption or loss
of files. Material changes in business shall include:
a) a significant change in the business practices, methods and strategy
employed by RIL with specific reference to the Services;
b) use by RIL of a competitor of StorageTek's to provide the Services
without first providing StorageTek an opportunity to meet pricing,
service and quality standards of the competitor and other factors
that RIL may specify as material in the circumstances.
4.3 Other Termination. This Agreement may be terminated by a party immediately
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if any proceeding in bankruptcy, insolvency, liquidation or other law for
the relief of debtors, including the appointment of any receiver or trustee
or assignment for the benefit of creditors, shall be instituted by or
against the other party, if the other party is liquidated or dissolved, or
if the other party attempts to assign this Agreement or any rights
hereunder without prior written consent of the terminating party. RIL may
at its option terminate this Agreement on 3060 days written notice to
StorageTek if RIL receives notice of a proposed increase in the Service Fee
pursuant to section 2.6.
ARTICLE 5
MISCELLANEOUS PROVISIONS
5.1 Notices. Any notice or report required or permitted by this Agreement shall
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be deemed given if delivered personally and signed as being received or if
sent by
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either party to the other by facsimile, or registered or certified airmail,
postage prepaid, return receipt requested, addressed to the other party at
its principal business address or at such other address as to which such
party shall give notice hereunder. If by registered or certified mail,
delivery shall be deemed effective three days after deposit with postal
authorities.
5.2 StorageTek Address. Notices to StorageTek should be addressed to:
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Xxxxx X. XxXxxxxx
StorageTek Canada Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx X0X 0X0
Telephone: (000) 000-0000
Fax: (000) 000-0000
5.3 RIL Address. Notices to RIL should be addressed to:
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Xxxx Xxxxxxxx
Reconnaissance International Ltd.
Suite C-1, 0000 Xxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Telephone: (000) 000-0000
Fax: (000) 000-0000
5.4 Assignment and Enurement. Neither party may assign this Agreement nor any
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rights hereunder without the prior written consent of the other party
except to any of its associated or affiliated companies. Subject to the
foregoing, this Agreement shall bind and inure to the benefit of the
respective parties hereto and their respective successors, and permitted
assignees.
5.5 Authority to Execute. The individuals executing this Agreement for each
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party represent and warrant that he or she has been duly authorized to
execute this Agreement on behalf of the party.
IN WITNESS WHERE OF StorageTek and RIL have executed this Agreement as of the
date first above written.
STORAGETEK CANADA INC. RECONNAISSANCE INTERNATIONAL LTD.
Per:__________________ Per:_____________________________
Authorized Signatory Authorized Signatory
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SCHEDULE A
SERVICE FEES (CANADIAN CURRENCY)
Workstation Back-up Fee Schedule
No. of Monthly End-Users Discount from List Price for
All End-Users
1 - 1,999 26%
2,000 - 4,999 28%
5,000 - 9,999 31%
10,000 - 20,999 35%
21,000+ 40%
The current list price for workstation back-up services is $25.00 per
workstation per month.
Server Back-up Fee Schedule
Monthly GBytes Consumed Discount from List Price
1 - 299 26%
300 - 699 28%
700 - 999 31%
1,000 - 1,999 35%
2,000+ 40%
The current list price for server back-up services is $35.00 per GByte per
month. A one time deposit of $10,000 shall be paid by RIL. In exchange for this
deposit, StorageTek Canada will provide the above identified services, at no
additional cost, until such time as the then accumulative value of discounted
services provided is equal to the amount of the deposit. If this Agreement is
terminated for any reason before the full amount of the deposit is so applied,
StorageTek will return the balance to RIL without deduction or setoff.
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SCHEDULE B
DEFINITION OF "SERVICES"
StorageTek will provide to RIL a turnkey solution for remote data backup and
data restoration. This will include software (herein referred to as "StorageTek
Software") for use by RIL's end-users to perform remote data backup. StorageTek
will provide the StorageTek Software to RIL for unlimited, worldwide, royalty
free distribution to End-Users.
In addition to the StorageTek Software, StorageTek will manage a backup data
center where End-Users will connect over the Internet using the StorageTek
Software and store their data. StorageTek will take reasonable precautions to
insure that the data stored at this data center is fully secure and protected
against accidental or intentional loss, damage or corruption. To insure data
reliability and redundancy of service, StorageTek will maintain a minimum of two
data centers; the StorageTek Software will transparently connect to the
appropriate data center.
StorageTek will provide a fully automated mechanism for RIL to create CD-ROM's
of End-Users' backups for the exclusive use of restoring that information on a
replacement notebook or shipping the CD-ROM to the End-Users.
StorageTek will provide 24-hour support to RIL for both the StorageTek Software
and the CD-ROM creation process.
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SCHEDULE C
DEFINITION OF "SOFTWARE"
The Software provided by StorageTek shall consist of client applications in
binary format for the sole purpose of backing up end-user data files to
authorized StorageTek storage facilities. The client application will be
compatible with Windows '95 and Windows NT. The software does not consist of
source code or other non-binary elements of the client application.
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SCHEDULE E
ADHESION AGREEMENT
WHEREAS:
The undersigned (the "RIL Agent") will or has been provided access to and use
and benefit of the Services and the StorageTek Software provided by StorageTek
Canada, Inc. ("StorageTek") to Reconnaissance International Ltd. ("RIL")
pursuant to a service supply agreement (the "Service Supply Agreement") dated
________________ between StorageTek and RIL.
The RIL Agent is a party referred to in clause 1.1(b) of the Service Supply
Agreement and has agreed to execute this Agreement and be bound by the terms
thereof.
Any term or phrase with initial capital letters not defined herein shall have
the meaning ascribed to it in the Service Supply Agreement.
NOW THEREFORE for good and adequate consideration, the sufficiency of which is
hereby acknowledged, the RIL Agent hereby covenants with StorageTek as follows:
1) The RIL Agent guarantees that RIL will pay to StorageTek the Service Fees
due from time to time by RIL in respect of all Services and use of the
StorageTek Software for End-Users for which the RIL Agent has primary
responsibility and the RIL Agent will indemnify and save StorageTek harmless
from all losses suffered by StorageTek as a result of non-payment of such
Service Fees by RIL.
2) The RIL Agent will notify StorageTek of every End-User for which the RIL
Agent has primary responsibility.
3) The RIL Agent hereby accepts and agrees to be bound by all limitations and
obligations of RIL under the Service Supply Agreement with respect to the
Services and the StorageTek Software.
4) StorageTek is not required to exhaust its recourse against RIL or others
before being entitled to payment from the RIL Agent under this Adhesion
Agreement.
5) The RIL Agent acknowledges that it has received and reviewed a copy of the
Service Supply Agreement and further acknowledges the provisions of the
Service Supply Agreement.
6) This Adhesion Agreement may not be assigned by the RIL Agent without the
consent of StorageTek and RIL.
7) This Adhesion Agreement shall be governed by and construed and interpreted
in accordance with the laws of the Province of Ontario and the laws of
Canada applicable therein.
8) Notices under the Service Supply Agreement shall be given to the RIL Agent
at the following address and facsimile number:
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IN WITNESS WHEREOF the RIL Agent has executed this Agreement as of the date
first below written.
TYPE NAME OF RIL AGENT HERE
Per: ________________________________________________
Authorized Signatory
Dated: ________________________________________________
-14-
