Exhibit 10.24
JOINT SOFTWARE DEVELOPMENT AGREEMENT
This JOINT SOFTWARE DEVELOPMENT AGREEMENT (the "Agreement") is made and entered
into this ____ day of ___________, 2004 by and between ROCKY MOUNTAIN SUPPORT
SERVICES, INC., an Arizona corporation ("RMSS") and PROPERTY INSIGHT, LLC, a
California limited liability company ("PI"). Each of RMSS and PI shall
hereinafter be referred to as a "Party" and, collectively, as the "Parties".
WHEREAS: RMSS has been developing software known between the Parties as Property
Insight 2 ("PI2") for purposes of accessing Title Plant Data Bases (defined
below), in which effort it has spent $4.6 million (the "Stipulated Cost") to
date;
WHEREAS: PI and RMSS are willing and prepared to have PI complete the
development work on PI2 on the terms included herein;
NOW THEREFORE THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURPOSE
1.1 The objective of the cooperative efforts described herein is the
timely completion of development of PI2 in accord with agreed
functional specifications as set forth in Exhibit 1.1 hereto, as may
be modified solely by agreement of the Parties from time to time
(the "Specifications".) Any modification to the Specifications may
be conditioned upon a fairly related adjustment of the Target Date
(defined below). (For purposes of this Agreement, the Parties
contemplate that RMSS will put PI2 in production after all
development work has been Completed and not on a milestone by
milestone basis. If the Parties later agree that some, but not all,
of PI2 should be Acceptance Tested and put into production, then the
Parties will negotiate and enter into an amendment to this Agreement
describing their respective rights and obligations with respect to
that portion of PI2 put into production and that portion of code
that is still left to be completed relative to use in its own
internal business and use by its customers. For the avoidance of
doubt, this language is not intended to create a claim in PI if this
Agreement is resolved without Tender or Delivery of a Complete PI2,
and RMSS puts all or any part of the deliverables into production
use.)
2. DEFINITIONS
2.1 The following terms shall have the meanings ascribed to them below
for purposes of this Agreement:
2.1.1 "Acceptance Test" shall mean the schedule, tests and trials
agreed between the Parties, whether or not specific, or with
respect to specific data sets, or over specific durations,
designed to determine compliance of PI2, as Tendered, with the
Specifications, conducted in an agreed systems test
environment, at a mutually agreed time and place in the
presence of both Parties upon reasonable notice by the
proponent Party to the other, all as described in Exhibit
2.1.1 hereto.
2.1.2 "Complete" when applied to PI2, shall mean PI2 in a state of
completion capable of satisfying the Acceptance Test
(regardless of whether the test has been run).
2.1.3 "Delivered" when applied to PI2, shall mean that PI shall have
Tendered to RMSS for Acceptance Testing a Complete PI2
product, together with all related Documentation.
2.1.4 "Documentation" shall mean machine readable, annotated source
or comparable fundamental code for such work product, user and
operator manuals as and to the extent created for internal
use, and a machine readable copy of proprietary tool sets, and
identification of third party tool sets, used in its creation.
2.1.5 "Malicious Code" shall mean any virus, Trojan horse, worm, or
other code within the deliverable software designed to permit
unauthorized access, to disable, erase, encrypt, modify or
otherwise harm software, hardware or data, or to perform any
other similar actions, which functionality is not disclosed to
the recipient.
2.1.6 "Target Date" is the date agreed for PI2 to be Tendered by PI
to RMSS, and is initially agreed to be [____________].
2.1.7 "Tender" shall mean a purported delivery by PI of PI2 to RMSS,
together with all related Documentation and PI's written
statement that PI2 is Complete.
2.1.8 "Title Plant Data Base" means a collection of data, images,
and/or indices, including indices of land records and copies
of official records and other materials and databases,
relating to a particular geographic area, stored or pointers
to which are stored in electronic form for computerized search
and retrieval.
3. CONTRIBUTIONS TO THE COOPERATIVE EFFORT
3.1 RMSS shall make available to PI a complete and accurate copy of its
work product generated to date in its effort to create PI2 together
with all related Documentation (the "RMSS Deliverable") for the sole
purpose of enabling PI to further develop the RMSS Deliverable so as
to create PI2. The RMSS Deliverable is agreed to have a value equal
to the Stipulated Cost. For the
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avoidance of doubt, RMSS is not hereby contributing to PI or
publishing any trade secret content of such disclosure.
3.2 PI shall make available sufficient competent and experienced
software development resources, including project management, having
requisite skills to complete PI2 by the Target Date in accordance
with the Specifications, and shall apply those resources until PI2
is Complete and Delivered. As a further contribution, PI shall track
its development costs and expenses, and monthly, until PI2 is
Complete and Delivered (or the earlier termination of this
Agreement), provide a written breakdown of such costs and expenses
incurred in the PI2 development process and an estimate of its
progress toward completion (as a percentage) to RMSS.
3.3 From time to time, upon RMSS' request, PI shall provide RMSS with
reasonable onsite and/or remote access to PI's internal testing of
PI2 prior to Tender ("Pre-Tender Testing") and with copies of data,
results, and associated reports and materials from Pre-Tender
Testing. RMSS shall use reasonable efforts to communicate to PI any
noncompliance with Specifications that RMSS may identify in its
observance of Pre-Tender Testing or related data, results, reports
and materials.
4. TITLE IN PI2 PENDING COMPLETION
4.1 Pending satisfaction of conditions herein to any contrary allocation
of title in the PI work product generated hereunder (for example,
under Sections 5.2, 5.5, 7 and 8 hereof), all such work product, as
it is created, shall be the property of RMSS as a work-for-hire (as
such term is used in the US Copyright Act, as amended from time to
time) and, to the extent that any property interest in such work
product is not thereby the creation and property of RMSS, PI hereby
makes a continuing assignment of same to RMSS. PI shall execute such
documents and take such other actions as RMSS may reasonably request
from time to time to perfect, record or otherwise memorialize RMSS'
ownership of any such work product at RMSS' expense.
5. TERMINATION OF THE AGREEMENT; DISPOSITION OF PRODUCT
5.1 This Agreement shall terminate, absent an agreed extension, upon the
earlier of:
5.1.1 when PI2 is Complete and Delivered;
5.1.2 upon written agreement of the Parties;
5.1.3 upon no less than thirty days' notice by RMSS to PI at any
time, or by PI to RMSS at any time after its costs and
expenses of development equal or exceed $4.6 million.
5.2 In the event of termination pursuant to 5.1.1, subject to the
"Conveyance Conditions" hereinafter defined, each Party shall
thereafter possess an undivided half ownership interest in and to
the joint and/or integrated work product of PI2
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(comprising the RMSS Deliverable and the PI work product), without a
duty of accounting, and with a right to exploit same in any manner
it may choose. In such event, RMSS shall execute such documents and
take such other actions as PI may reasonably request from time to
time to perfect, record or otherwise memorialize PI's undivided
ownership of PI2 at PI's expense.
5.3 In the event of termination pursuant to 5.1.2, the agreement to
terminate shall include, in writing, the terms on which each of the
Parties may use or access the joint work product, related notes,
annotations, and any other related products, tools or information.
5.4 In the event of termination by PI pursuant to 5.1.3, PI shall return
to RMSS all whole or partial copies of the RMSS Deliverable
delivered to it, and of PI's subsequently generated work product in
furtherance of development of PI2, together with all related
Documentation; PI shall certify that it retains no copies thereof,
and it shall retain no right of use of any nature therein.
5.5 In the event of termination by RMSS pursuant to 5.1.3 and subject to
the Conveyance Conditions, PI shall return to RMSS the RMSS
Deliverable provided to it, and a copy of its subsequently generated
work product (in a machine readable format in common use at the
time) in furtherance of development of PI2, together with all
related Documentation, but PI may retain such copies of its joint
and/or integrated work product as it may desire, and an undivided
half ownership interest in and to such joint and/or integrated work
product to such date (comprising the RMSS Deliverable and the PI
work product), without a duty of accounting, and with a right to
exploit same in any manner it may choose. In such event, RMSS shall
execute such documents and take such other actions as PI may
reasonably request from time to time to perfect, record or otherwise
memorialize PI's undivided ownership of PI2 at PI's expense.
6. CONVEYANCE CONDITIONS.
6.1 The following Conveyance Conditions are conditions precedent to PI
taking any proprietary interest in the Complete PI2:
6.1.1 If PI shall complete PI2 at a documented development cost to
PI below the Stipulated Cost, then PI shall have paid to RMSS
the difference between PI's documented development costs and
the Stipulated Cost.
6.1.2 If PI2 is Tendered later than the Target Date, it shall pay to
RMSS, as liquidated damages and not as a penalty, the amount
set forth in Exhibit 6.1.2, per day, from the date following
the Target Date until the date PI2 is Tendered Complete
(notwithstanding that Acceptance may follow by some time) as
RMSS' sole and exclusive remedy for late Tender.
6.1.3 PI shall certify to RMSS that all designed functionality in
the Complete PI2 product has been disclosed in Documentation
provided by PI to RMSS with the delivered PI2 product.
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7. TENDER; DEFECTS
7.1 If PI has Tendered PI2, and RMSS agrees in writing that PI2 is
Complete, this Agreement shall be terminated pursuant to Section
5.1.1 with all attendant consequences under Section 5.2.
7.2 In the event that RMSS challenges PI's Tender under Section 7.3 or
8.3, if RMSS puts the joint and/or integrated work product of PI
into production before the time to pursue dispute resolution has
expired or pending completion of the dispute resolution process
then, without further formality, PI shall be deemed granted a
license to use the same work product (as used by RMSS) in
production. Such license shall be solely for PI's internal purposes
(which may nonetheless be for the benefit of third parties),
provided that upon any resolution adverse to its interests
hereunder, PI shall conform its use to the outcomes dictated
hereunder or pursuant hereto. If PI puts the joint work into
production pursuant to this Section 7.2, notwithstanding anything to
the contrary herein, it may subsequently re-Tender work product to
RMSS hereunder only once.
7.3 At any time during the period specified in Schedule 2.1.1 for RMSS
to complete Acceptance Testing, following RMSS' receipt of PI's
Tender (assuming reasonable cooperation of PI in the conduct of
testing), RMSS may challenge PI's Tender with respect to whether PI2
is Complete by written notice to PI to such effect. If a challenge
is pursued to the point of issuance of an arbitral decision, and PI
is subsequently determined to be incorrect, then RMSS shall hold
exclusive ownership in PI's work product so delivered to RMSS, and
PI shall have no further interest or right of use therein.
7.4 For the avoidance of doubt, at any time prior to the issuance of an
arbitral decision under the dispute resolution process hereunder,
(a) PI may further develop and modify PI2 and re-Tender PI2 to RMSS
in order to Complete PI2 (but Tender shall thereafter be dated as of
the date of re-Tender), and (b) RMSS may exercise its right of
termination pursuant to Section 5.1.3. If PI re-Tenders, the Parties
agree to immediately dismiss or suspend the dispute resolution
process (if begun) and, if applicable, the arbitration, and the
Acceptance Testing process shall begin again so that termination may
be achieved under Section 5.1.1 with all attendant consequences. If
PI re-Tenders a second or subsequent time, PI shall promptly
reimburse RMSS, against statement, for its out-of-pocket costs
incurred in pursuing the dispute resolution processes with respect
to prior Tenders to the date of such re-Tender. If RMSS exercises
its right of termination pursuant to Section 5.1.3 during the
pendency of dispute resolution processes for a challenge under
Section 7.3, then RMSS shall promptly reimburse PI, against
statement, for its out-of-pocket costs incurred in pursuing such
dispute resolution processes to the date of such termination.
7.5 Alternatively, if RMSS timely pursues dispute resolution hereunder
to the point of issuance of an arbitral decision and is subsequently
determined to be incorrect, then it shall pay to PI twice PI's
development costs for all work performed under
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this Agreement, from the date hereof to the date of the successful
Tender. Each Party shall thereafter possess an undivided half
ownership interest in and to the joint work product of PI2
comprising the RMSS Deliverable and the work product developed by PI
under this Agreement, without a duty of accounting, and with a right
to exploit same in any manner it may choose. Under all events
described in this subsection, each Party shall execute such
documents and take such other actions as the other may reasonably
request from time to time to perfect, record or otherwise
memorialize such other Party's undivided ownership thereof at such
other Party's expense.
8. CLAIMED IMPOSSIBILITY
8.1 Notwithstanding anything to the contrary herein, after PI has made
good faith reasonable efforts to Complete PI2, PI may state in
writing to RMSS that PI2 is not capable of being made Complete, in
which case PI shall, within fifteen days, (a) provide all of its
development work product to RMSS for assessment, (b) certify to RMSS
PI's development costs to date and the completeness of the foregoing
delivery, and (c) cooperate with RMSS in any testing thereof (with
each Party bearing its own costs therefor).
8.2 If RMSS agrees in writing as to PI's assertion of impossibility, the
Agreement shall be deemed terminated by PI pursuant to Section 5.1.3
with all attendant consequences.
8.3 At any time for six months following RMSS' receipt of PI's delivery
of work product and certification pursuant to Section 8.1(a) and
(b), (assuming reasonable cooperation of PI in the conduct of
testing), RMSS may challenge PI's Tender with respect to whether PI2
is impossible to Complete under the dispute resolution process. If
that challenge is pursued to the point of issuance of an arbitral
decision, and RMSS is subsequently determined to be incorrect, then
it shall pay to PI twice PI's documented development costs for all
work performed under this Agreement, from the date hereof to the
date of PI's notice to RMSS of impossibility, and each Party shall
thereafter enjoy an undivided half ownership interest in and to the
joint work product comprising the RMSS Deliverable and the work
product developed by PI under this Agreement, without a duty of
accounting, and with a right to exploit same in any manner it may
choose. Under all events described in this subsection, each Party
shall execute such documents and take such other actions as the
other may reasonably request from time to time to perfect, record or
otherwise memorialize such other Party's undivided ownership thereof
at such other Party's expense.
8.4 For the avoidance of doubt, at any time prior to the issuance of an
arbitral decision under the dispute resolution process hereunder,
(a) PI may further develop and modify PI2 and re-Tender PI2 to RMSS
in order to Complete PI2 (but Tender shall thereafter be dated as of
the date of re-Tender), and (b) RMSS may exercise its right of
termination pursuant to Section 5.1.3. If PI re-Tenders, the Parties
agree to immediately dismiss or suspend the dispute resolution
process
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(if begun) and, if applicable, the arbitration, and the Acceptance
Testing process shall begin again so that termination may be
achieved under Section 5.1.1 with all attendant consequences. If PI
re-Tenders a second or subsequent time, PI shall promptly reimburse
RMSS, against statement, for its out-of-pocket costs incurred in
pursuing the dispute resolution process with respect to prior
Tenders to the date of re-Tender. If RMSS exercises its right of
termination pursuant to Section 5.1.3 during the pendency of dispute
resolution processes for a challenge under Section 8.3, then RMSS
shall promptly reimburse PI, against statement, for its
out-of-pocket costs incurred in pursuing such dispute resolution
processes to the date of such termination.
8.5 Alternatively, if RMSS timely pursues dispute resolution hereunder
to the point of issuance of an arbitral decision, and is ultimately
determined to be correct, then RMSS shall hold exclusive ownership
in PI's work product so delivered to RMSS, and PI shall have no
further interest or right of use therein.
9. EARN-OUT CONTINGENCY
9.1 If PI expends an amount equal to the Stipulated Cost for development
toward PI2, it may then elect to solicit from RMSS, by notice, RMSS'
written agreement to equally share PI's incremental costs and
expenses of further development on the terms herein or on negotiated
terms to be reflected in such agreement. If, following RMSS' receipt
of notice requesting agreement to share future development costs
(and otherwise to continue on the terms herein), RMSS rejects the
proposal, this Agreement shall be deemed terminated by RMSS under
Section 5.1.3 with all attendant consequences under Section 5.5, If
RMSS is willing to pay half of the incremental development costs
going forward but PI is not willing to proceed on the terms herein,
then this Agreement shall be deemed terminated by PI under Section
5.1.3 with all attendant consequences under Section 5.4. (If the
Parties agree to proceed upon revised terms, such terms shall
apply.)
9.2 Notwithstanding the agreement of the Parties to share development
costs in excess of the Stipulated Cost pursuant to Section 9.1, PI
may subsequently exercise rights under Sections 7 and 8.
10. REPRESENTATIONS AND WARRANTIES
10.1 Each Party represents and warrants to the other that (i) it has the
corporate power and authority to execute, deliver and perform this
Agreement, (ii) it has and will have sufficient right, title and
interest in and to its deliverables hereunder to permit the uses and
make the conveyances and assignments herein contemplated, and (iii)
its work product will be delivered or transmitted to the other free
of Malicious Code.
10.2 EXCEPT AS SPECIFIED IN THIS AGREEMENT, RMSS MAKES NO WARRANTIES WITH
RESPECT TO THE RMSS DELIVERABLE AND PI MAKES NO WARRANTY WITH
RESPECT TO ITS WORK PRODUCT, AND EACH
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EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A SPECIFIC PURPOSE.
11. LIMITATION OF LIABILITY
11.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER TO THE OTHER FOR
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. EXCEPT AS
ARISING FROM GROSS NEGLIGENCE OR WILFULL MISCONDUCT, OR PURSUANT TO
THE INDEMNITY AND HOLD HARMLESS UNDERTAKING HEREIN, PI SHALL HAVE NO
LIABILITY IN EXCESS OF THE DIFFERENCE BETWEEN THE DOCUMENTED COST OF
WORK PRODUCT DEVELOPMENT HEREUNDER AND THE STIPULATED COST (AND RMSS
SHALL HAVE NO FURTHER LIABILITY).
12. INDEMNITY; DEFENSE OF CLAIMS
12.1 Each Party shall indemnify and hold harmless the other Party, its
directors, officers and employees, from any and all losses,
liabilities, damages, judgments and claims, and all related costs
and expenses (including reasonable legal fees and disbursements and
costs of investigation, litigation, settlement, judgment, interest
and penalties) incurred by any of them in connection with, by reason
of, or arising out of, in whole or in part, and whether or not
subject to litigation, for (i) breach or failure of any
representation or warranty contained in Section 10 of this
Agreement; (ii) any act of gross negligence or willful omission, and
(iii) any claim alleging infringement within the United States of
third party intellectual property rights (including trade secret
misappropriation) by the indemnifying Party's contributions (i.e.,
the RMSS Deliverable or the PI work product, as applicable.)
12.2 A Party intending to assert its indemnity right hereunder (the
"Indemnified Party") shall promptly notify the other (the
"Indemnifying Party") of any indemnifiable claim and shall provide
the Indemnifying Party with all available evidence to enable the
Indemnifying Party to defend such claim. The Indemnifying Party
shall have the sole and exclusive right to select counsel and shall
pay all expenses of the defense, including, without limitation,
attorneys' fees and court costs. If necessary, the Indemnified Party
shall join as a party to the suit, but shall be under no obligation
to participate except to the extent that such participation is
required as a result of being a named party to the suit. The
Indemnified Party shall offer reasonable assistance to the
Indemnifying Party in connection therewith at no charge to the
Indemnifying Party except for reimbursement of reasonable
out-of-pocket expenses incurred by the Indemnified Party in
rendering such assistance. The Indemnified Party shall have the
right to participate and be represented in any such suit by its own
counsel at its own expense. The Indemnifying Party shall not settle
any such suit if such settlement would have an adverse effect on the
rights of the Indemnified Party without
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obtaining the prior written consent of the Indemnified Party, which
consent shall not be unreasonably withheld. It is the intention of
the Parties that, in the event that the Indemnifying Party
wrongfully denies its indemnification obligations hereunder, and the
Indemnified Party is required to enforce the Indemnifying Party's
obligation hereunder, then the Indemnified Party shall be entitled
to recover its reasonable attorneys' fees and costs incurred in such
process.
13. CONFIDENTIALITY
13.1 The RMSS Deliverable is the confidential and proprietary property of
RMSS unless and until PI2 is Complete and Delivered but, if and when
jointly owned by PI and RMSS, shall be treated as follows: either
Party may disclose the RMSS Deliverable to customers and potential
customers under written obligations of nondisclosure comparable to
those herein, but PI shall be relieved of any such duty upon RMSS'
intentional disclosure of the RMSS Deliverable without requirement
of a duty of nondisclosure (or upon RMSS' unintentional disclosure
without efforts at cure), to the extent of such disclosure. RMSS
shall make reasonable efforts to notify PI of the disclosure of the
RMSS Deliverable under the foregoing condition and to specify the
extent of such disclosure.
13.2 All information shared between the Parties by reason of this
relationship, whether belonging to a Party hereunder or not, shall
be deemed, as between the Parties, the property of (i) the Party
disclosing same to the other or (ii) the Party for whom such
information was collected, purchased, accessed, or otherwise
compiled. Notwithstanding the foregoing, Confidential Information
(defined below) within a deliverable shall be the property of the
Party owning the deliverable.
13.3 For the avoidance of doubt, as used herein, the term "Confidential
Information" shall comprise any and all information (of any nature,
however conveyed, stored or transmitted, relating to the business
operations of either of the Parties, or their customers or vendors.
13.4 Each Party agrees that Confidential Information of the other Party
shall be treated as confidential and shall not be disclosed except
as permitted herein. Each Party agrees to take affirmative
appropriate steps to ensure that such Confidential Information is
not disclosed to third parties except as may be permitted herein.
13.5 Disclosure of Confidential Information by a receiving Party shall be
permitted, upon notice to the prospective recipient of its
confidential nature, to competent regulators of a receiving Party,
and to its counsel and auditors having fiduciary duties of
confidentiality. Any other disclosure may be made only pursuant to
written consent of the corresponding disclosing Party.
13.6 Except to the extent comprising "nonpublic personal information" (as
defined in Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (15 U.S.C. Section
6801, et seq.), Confidential Information shall not be construed to
include information which is (i) known to the receiving Party at the
time of disclosure, (ii) independently
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developed by the receiving Party, (iii) or becomes public knowledge
or known within the industry without breach by the receiving Party,
(iv) disclosed to the receiving Party by another person reasonably
believed not to be bound by an obligation of confidentiality, or (v)
generally disclosed by the disclosing Party without limitation on
further disclosure.
14. EXCLUSIVITY
14.1 The Parties agree that, during the term of this Agreement, this
Agreement shall be the exclusive arrangement for the development of
PI2 (or any product that has specifications substantially similar to
the Specifications) for use by either Party in its business.
15. NOTICES.
15.1 Except as otherwise provided under this Agreement, all notices,
demands or requests or other communications required or permitted to
be given or delivered under this Agreement shall be in writing and
shall be deemed to have been duly given when received by the
designated recipient. Written notice may be delivered in person or
sent via reputable courier service and addressed as set forth below:
If to RMSS: Rocky Mountain Support Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
with a copy to: Fidelity National Financial, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
If to SoftPro: Property Insight, LLC
-------------------------------------
-------------------------------------
-------------------------------------
Attn:
with a copy to: Fidelity National Information Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
15.2 The address to which such notices, demands, requests, elections or
other communications are to be given by either Party may be changed
by written notice given by such Party to the other Party pursuant to
this Section.
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16. GOVERNING LAW; RESOLUTION OF DISPUTES
16.1 This Agreement shall be governed by, and construed in accordance
with, the laws of Florida. Subject to Sections 16.2-16.7, the
Parties hereby submit to the personal jurisdiction of the state and
federal courts in the State of Florida for the purpose of
adjudication of all matters arising hereunder or relating hereto
which may be the subject of litigation between the Parties.
16.2 If, prior to the termination of this Agreement, a dispute arises
between RMSS and PI with respect to the terms and conditions of this
Agreement, or any subject matter governed by this Agreement, such
dispute shall be settled as set forth in Sections 16.2-16.7 of this
Section 16.
16.3 The Parties shall escalate and negotiate, in good faith, any claim
or dispute that has not been satisfactorily resolved between the
Parties at the level where the issue is discovered and has immediate
impact. Escalation shall be by written notice to the other Party and
to the movant's president. Such president (or his or her designee)
shall attempt to resolve such a dispute within twenty (20) days of
the initial communication between them on the topic of the dispute
(which may be by notice). The location, format, frequency, duration
and termination of these discussions shall be left to the discretion
of the representatives involved. If such Parties do not resolve the
underlying dispute within such twenty (20) day period, then either
Party may notify the other in writing that the dispute is to be
elevated to binding arbitration.
16.4 All discussions and correspondence among the representatives for
purposes of these negotiations shall be treated as Confidential
Information developed for purposes of settlement, exempt from
discovery and production, which shall not be admissible in any
subsequent proceedings between the Parties. Documents identified in
or provided with such communications, which are not prepared for
purposes of the negotiations, are not so exempted and may, if
otherwise admissible, be admitted in evidence in such subsequent
proceeding.
16.5 Either Party may request arbitration by giving the other Party
written notice to such effect, which notice shall describe, in
reasonable detail, the nature of the dispute, controversy or claim.
Such arbitration shall be governed by the then current version of
the Commercial Arbitration Rules and Mediation Procedures of the
American Arbitration Association. The Arbitration will be conducted
in Jacksonville, Florida in front of one mutually agreed upon
arbitrator.
16.6 Each Party shall bear its own fees, costs and expenses of the
arbitration and its own legal expenses, attorneys' fees and costs of
all experts and witnesses. Unless the award provides otherwise, the
fees and expenses of the arbitration procedures, including the fees
of the arbitrator or arbitrators, will be shared equally by the
Parties.
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16.7 Any award rendered pursuant to such arbitration shall be final,
conclusive and binding upon the Parties, and any judgment thereon
may be entered and enforced in any court of competent jurisdiction.
17. REMEDIES AT LAW; EQUITABLE REMEDIES
17.1 Each of the Parties acknowledges and agrees that the
confidentiality, exclusivity and conveyance covenants contained
herein are necessary and reasonable for the protection of the
interests of the Parties and breach thereof cannot be fully
addressed by money damages. As to breach of such covenants, each
Party hereby waives (i) the defense to equitable claims of the
adequacy of money damages and (ii) any requirement that the other
Party post a bond (except as a condition for ex parte relief).
18. FORCE MAJEURE
18.1 Neither Party shall be held liable for any delay or failure in
performance of any part of this Agreement from any cause beyond its
reasonable control and without its fault or negligence, including,
but not limited to, acts of God, acts of civil or military
authority, embargoes, epidemics, war, terrorist acts, riots,
insurrections, fires, explosions, earthquakes, nuclear accidents,
floods, strikes, terrorism and power blackouts. Upon the occurrence
of a condition described in this Article that prevents any
performance due hereunder, the Party unable to perform shall give
written notice to the other, and the Parties shall promptly confer,
in good faith, to agree upon equitable, reasonable action to
minimize the impact, on both Parties, of such conditions.
19. MISCELLANEOUS TERMS
19.1 This Agreement represents the entire agreement between the Parties
related to the joint development of PI2 and may be amended only by a
writing executed by the Parties.
19.2 Headings used herein are for the convenience of the Parties and
shall not be deemed part of the Agreement or used in its
construction.
19.3 This Agreement may not be assigned by either of the Parties without
the prior written consent of the other Party. This Agreement is
binding on the successors and permitted assigns of each Party.
19.4 Nothing herein is intended to create, and shall not be asserted or
construed to create, a joint venture, partnership or agency of any
nature between the Parties. Except as specifically set forth herein,
each Party assumes sole and full responsibility for its acts and the
acts of its directors, officers, employees, agents and affiliates.
Neither Party has any authority to make commitments or enter into
contracts on behalf of, bind, or otherwise obligate the other Party
in any manner whatsoever except as specifically set forth herein.
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as
of the date first written above.
ROCKY MOUNTAIN SUPPORT SERVICES, INC. PROPERTY INSIGHT, LLC
By: By:
-------------------------------- --------------------------------
Print: Print:
----------------------------- -----------------------------
Title/Capacity: Title/Capacity:
-------------------- --------------------
Date: Date:
------------------------------ ------------------------------
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