AGREEMENT
This AGREEMENT establishes the terms and conditions under which
DELIVERABLES will be provided by XCENT to CLIENT. This AGREEMENT will
go into effect on the date CLIENT signs this AGREEMENT, hereinafter
referred to as the EFFECTIVE DATE, and will remain in effect until
terminated as permitted by the conditions of this AGREEMENT.
XCENT
Professional Microsystems Incorporated, D/B/A as XCENT A Pennsylvania
Corporation conducting business at:
0000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx 000, Xxxxx 0
Xxxxxxx, XX 00000
(000) 000-0000
FAX (000) 000-0000
xxx.xxxxx.xxx
CLIENT
Legal Name:
Trade Name:
(if different from Legal Name)
Mailing Address Line 1:
Line 2:
City, State, Zip:
Phone Number:
1 SCOPE OF SERVICES
A. Work Order CLIENT and XCENT agree that a WORK ORDER will initially
specify the DELIVERABLES. A valid executable WORK ORDER will contain:
1) A mutually acceptable description of DELIVERABLES to be provided
or a specific reference to a DESIGN DOCUMENT outlining the
DELIVERABLES to be provided;
2) the per man-hour billing rates in effect at time of WORK ORDER
creation;
3) estimated date(s) of completion;
4) an estimated cost;
5) a specified RETAINER amount if required; and
6) the signature of an authorized representative of the CLIENT.
CLIENT and XCENT agree that if multiple WORK ORDERs exist then each
WORK ORDER shall be considered independently in case of dispute.
Disputes arising from the conditions of one WORK ORDER shall not in any
way modify the obligations of open WORK ORDERs not under dispute.
CLIENT and XCENT agree that a WORK ORDER will be the accepted means for
defining, extending and amending work to be performed under this
AGREEMENT, and in all situations an extension of this AGREEMENT.
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B. Scope Changes CLIENT may request XCENT to perform additional work,
make changes to work in progress, and/or make changes to already
completed work. Collectively these requests represent SCOPE CHANGES.
A CLIENT may submit SCOPE CHANGES orally or in writing. CLIENT may
submit written SCOPE CHANGES by regular mail, express mail, fax, or
electronic mail. CLIENT may request changes orally from an authorized
representative of XCENT. XCENT and CLIENT agree that oral exchange of
information is subject to interpretation. If CLIENT desires to submit
requests orally, XCENT may acknowledge such requests orally. CLIENT
agrees to assume all liability for inaccuracies or incompleteness in
DELIVERABLES that are a product of oral requests. In the event that
any SCOPE CHANGE requested by CLIENT requires XCENT to modify work in
progress, or modify completed work, CLIENT agrees that CLIENT is still
under obligation to pay for all work performed prior to the SCOPE
CHANGE even if the SCOPE CHANGE necessitates discarding completed or
partially completed work. All SCOPE CHANGES accepted and acted on by
XCENT become an integral part of the WORK ORDER. As an integral part
of the WORK ORDER, SCOPE CHANGES are subject to the terms and
conditions of this AGREEMENT. CLIENT agrees that all SCOPE CHANGEs
will invalidate the estimated cost figure, and estimated delivery date
presented in the original WORK ORDER. Unless so requested by CLIENT,
XCENT will not provide a revision of this cost estimate.
C. Deliverables The WORK ORDERs and their subsequent SCOPE CHANGEs
executed as part of this AGREEMENT will describe the items, both
tangible and intangible, that the CLIENT will receive in exchange for
the COMPENSATION paid to XCENT. These items are considered the
DELIVERABLES. A DELIVERABLE may be one or more of the following or
such additional items so specified in the WORK ORDER:
1.) In all cases the DELIVERABLE always includes XCENT's time and
CLIENT agrees to accept delivery and pay as agreed for time expended
and invoiced by XCENT;
2.) Binary executables (APPLICATIONS), the product of XCENT's
software development efforts, developed under specific guidelines
provided by CLIENT for CLIENT's use;
3.) Documentation that may: describe the use of any delivered
equipment, describe the use of any delivered APPLICATIONS, describe the
development process, or describe the design process;
4.) Source code for APPLICATIONS developed by XCENT, which may be
deliverable under the terms set forth in Section 14 SOFTWARE ESCROW;
and
5.) Materials which include physical electronic hardware, software
not developed by XCENT, and other similar physical items.
D. Design Documents CLIENT agrees that the act of providing
technology services is a highly detailed and complex process. As such,
a great deal of design work may be required as part of the
DELIVERABLES. During the course of this design work XCENT may prepare
DESIGN DOCUMENTS that are submitted for CLIENT approval. DESIGN
DOCUMENTS approved by the CLIENT will become an integral part of a WORK
ORDER. DESIGN DOCUMENTS can consist of one or more of the following
items:
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1.) Written text describing the functionality and the look and feel
of the finished product,
2.) mock-ups of reports or other data output which represent the
intended appearance of the finished product,
3.) functional prototypes of the finished product, and/or
4.) any other documents that describe CLIENT's work-flow or
business process.
CLIENT agrees to assume full responsibility for assuring that all
DESIGN DOCUMENTS submitted for approval by XCENT contain all of the
desired requirements. At no time will XCENT assume responsibility for
missing requirements because of CLIENT's failure to adequately review
DESIGN DOCUMENTS .
2 CLIENT OBLIGATIONS
CLIENT and XCENT agree that CLIENT's acceptance of a WORK ORDER confers
certain obligations on the CLIENT. When accepting a WORK ORDER the
CLIENT assumes the following obligations:
1.) CLIENT must remit RETAINER monies if so specified before work
may commence.
2.) XCENT may request information from the CLIENT. Information
requested can include clarification of requirements, answers to
questions, test data, etc. CLIENT must make every reasonable effort to
deliver this information in a timely fashion to XCENT. CLIENT agrees
that XCENT will not be held accountable for any delays if it can be
demonstrated that CLIENT has not made an adequate effort to deliver
requested material in a timely fashion.
3.) XCENT may request resources from the CLIENT as necessary to
fulfill the requirements of the WORK ORDER. Resources include access
to CLIENT's facilities, personnel, and other similar items. CLIENT
must make every reasonable effort to provide access to such resources
in a timely fashion to XCENT. If CLIENT is unable to make such
resources available in such a manner then XCENT may make an appropriate
adjustment of the estimated delivery date.
3 XCENT OBLIGATIONS
XCENT represents that the necessary resources in terms of expertise are
available to meet the needs of work to be performed for CLIENT. CLIENT
understands and agrees XCENT is not exclusively servicing CLIENT's WORK
ORDERs. CLIENT understands and agrees that XCENT may need to
reprioritize resource assignments based on the immediate critical needs
of other clients-a benefit that CLIENT also enjoys.
XCENT will make every effort to finish WORK ORDER objectives by the
estimated date of completion. XCENT is obligated to inform CLIENT of
any issues that would alter or potentially affect the estimated
delivery date. CLIENT understands and agrees that a WORK ORDER's date
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of completion is an estimate and is subject to change. The date of
completion is subject to change because of staff illness, prolonged
resource shortages, SCOPE CHANGES, and other similar issues that would
delay work progress or require additional work.
XCENT will make every effort to finish WORK ORDER objectives within the
estimated cost. XCENT is obligated to inform CLIENT of any issues that
would alter or potentially affect the estimated cost. CLIENT
understands and agrees that the WORK ORDER's cost is an estimate. The
cost is subject to change because of incomplete DESIGN DOCUMENTS, SCOPE
CHANGES, and other similar issues that would require more work than
originally estimated.
4 PERIOD OF PERFORMANCE
This AGREEMENT shall remain in full force from the EFFECTIVE DATE until
terminated in writing as provided for in Section 19 TERMINATION. The
terms and conditions of Sections 10 through 16 shall remain in force
after termination in perpetuity.
5 CONTRACTUAL RELATIONSHIP
XCENT shall operate as and have the status of an independent contractor
and shall not act as or be an agent or employee of CLIENT.
6 COMPENSATION
CLIENT shall pay XCENT for DELIVERABLES provided as follows:
A. Compensation Services are provided and billed on a per man-hour
basis. Compensation rates for services are specified in each WORK
ORDER. Rates are subject to change on the anniversary of each WORK
ORDER or yearly on or about January 1st.
B. Payment XCENT shall submit to CLIENT project summaries for each
WORK ORDER and a consolidated invoice for the preceding month. Each
project summary will include a detail of hours worked, resource, task,
and rate classification. Payment for invoices are due by the 15th day
of the month of issue.
C. Default Invoices not paid by the due date are subject to late fees
in the amount of 2.0 percent monthly or 24 percent per annum. ALL
SERVICE WILL BE SUSPENDED IF INVOICES ARE NOT PAID WITHIN 30 DAYS OF
THE INVOICE DATE. XCENT WILL NOT BE CONSIDERED IN BREACH OF THIS
AGREEMENT BY SUSPENDING SERVICE. Suspension of service may include
interruption of the usability of DELIVERABLES already in CLIENT's
possession. CLIENT's only remedy to restore service and product
usability is to remit full payment. CLIENT will be considered in
DEFAULT of this agreement if balances exceed 60 days past due from
invoice date.
D. Retainer XCENT may require CLIENT to provide a RETAINER before
commencing work. The amount of the RETAINER will be determined by
XCENT. XCENT may at any time request CLIENT to provide additional
RETAINER funding based on DELIVERABLES requested by CLIENT. XCENT will
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not provide any interest or other compensation while retaining these
monies. XCENT will at its discretion apply the retainer toward each
month's invoices according to the future anticipated volume of
DELIVERABLES. In the event that CLIENT terminates service in
accordance with Section 19 TERMINATION or XCENT has satisfied all
obligations of all outstanding WORK ORDERS and SCOPE CHANGES the
balance of the RETAINER less charges for any uncompensated work to date
will be returned to the CLIENT within ten (10) business days.
E. Billing Rights CLIENT agrees to review every project summary and
invoice submitted by XCENT. Project summaries will contain detailed
information about the DELIVERABLES provided. If a problem is found
with any item, the problem must be brought to XCENT's attention within
thirty (30) days of the invoice date. XCENT will review the problem
and, if appropriate, promptly issue a credit and a revised project
summary. Problems with specific items do not absolve CLIENT from the
timely payment for other items not under examination. CLIENT's failure
to pay uncontested portions of the invoice on time will place the
CLIENT in DEFAULT.
7 AUTHORIZED REPRESENTATIVES AND NOTICES
A. CLIENT Authorized Representative CLIENT designates the following
representative to receive notices and who shall have authority to make
binding decisions on behalf of CLIENT
Name
Title
Address
Phone
Fax
Email Address
CLIENT may at any time for it's own convenience provide in writing a
list of those individuals who can function as authorized
representatives. Such a list submitted to XCENT must be signed by the
above named authorized representative. This list, upon receipt by
XCENT, will supercede any existing list, and only the names on the most
recent list will be accepted as authorize representatives.
B. XCENT Authorized Representatives XCENT designates the
representative to receive notices and who shall have authority to make
binding decisions on behalf of XCENT:
8 TAXES, SALARIES, AND FRINGE BENEFITS
XCENT shall have exclusive liability for the payment of salaries,
payroll taxes, unemployment insurance, retirement benefits, fringe
benefits, and other employment costs with respect to persons employed
by XCENT. XCENT shall not be liable for State or Municipal Sales or
Use Taxes or any Taxes levied by any government outside the United
States.
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9 LAWS AND REGULATIONS
XCENT shall comply with Federal, state, and local laws and regulations
including those relating to wages, hours, fair employment practices,
equal opportunity, anti-discrimination, safety, and working conditions.
10 INDEMNIFICATION
CLIENT shall indemnify and hold harmless XCENT from all claims of
injuries or damages to persons or property caused by XCENT in the
course of its performance under this AGREEMENT, unless such were caused
by the gross negligence of XCENT.
11 LIMITS OF LIABILITY
XCENT's liability shall be limited to fees invoiced by XCENT and paid
by CLIENT. In no event shall XCENT be liable to the CLIENT for any
indirect, incidental, punitive, exemplary, special, consequential, or
any other damages of any kind whatsoever which arise out of or relate
to this AGREEMENT in any way, which are a result of the XCENT's breach
of this AGREEMENT, which are a result of the XCENT's negligence or
gross negligence, or which arise in any other fashion.
12 WARRANTY
XCENT shall perform the services specified with the degree of skill and
care that is required by customarily accepted good and sound
professional practices at the time the work is performed. CLIENT's
sole and exclusive remedy and XCENT's only obligation to the CLIENT
under this warranty is to cause services rendered or products provided
to be altered or mended in such a way so that they conform to the
specifications agreed upon as set forth in their respective WORK
ORDERS. Not withstanding anything in this Section to the contrary,
there shall be no warranty if:
1.) the DELIVERABLES provided by XCENT have been modified, altered,
or changed by anyone other than XCENT;
2.) an error or defect is in DELIVERABLES for which warranty
service is provided by parties other than the XCENT;
3.) an error or defect in the DELIVERABLES provided by and
warranted by XCENT is shown to be caused by an error or defect in a
product or service warranted by parties other than the XCENT;
4.) there has been a change in the equipment on which XCENT's
DELIVERABLES were designed to operate;
5.) such equipment is not in good operating order or is not
installed in a suitable operating environment;
6.) any error or defect has been caused by CLIENT or any of its
agents, servants, employees, or contractors other than XCENT;
7.) CLIENT did not properly notify XCENT of any warranty claim; or
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8.) CLIENT owes XCENT any fees.
If CLIENT makes a warranty claim for functionality that is omitted
from, or inadequately or incompletely described in the DESIGN DOCUMENTS
then CLIENT agrees and grants XCENT authority in deciding if the claim
is a WARRANTY issue or if the claim represents a SCOPE CHANGE.
CLIENT agrees to pay for any time XCENT expends to identify the source
of a WARRANTY claim if XCENT discovers the origin of the error or
defect to be the responsibility of the CLIENT or a third-party,
13 OWNERSHIP OF WORKS OF AUTHORSHIP
A. Works Of Authorship For the purposes of this AGREEMENT a WORK OF
AUTHORSHIP is defined as any copyrightable materials such as documents,
software, etc, that have been supplied by XCENT to CLIENT as part of
the DELIVERABLES or that have been supplied to XCENT by CLIENT during
the course of this agreement.
B. Xcent's Prior Works Of Authorship In the course of fulfilling its
obligations to this AGREEMENT XCENT may elect to make use of previously
existing WORKS OF AUTHORSHIP. CLIENT agrees and recognizes that:
1.) All previously existing WORKS OF AUTHORSHIP supplied to CLIENT
which have been developed by XCENT outside this agreement will remain
the exclusive property of XCENT, and will remain so even after
delivery;
2.) Such WORKS OF AUTHORSHIP supplied by XCENT to CLIENT are
confidential and proprietary trade secrets of XCENT, protected by law,
and are of substantial value to XCENT, and their use and disclosure
must be carefully and continuously controlled; and
3.) Certain items supplied by XCENT to CLIENT are subject to the
Copyright Laws of the United States. CLIENT agrees to keep all
property of XCENT free and clear of all claims, liens, and
encumbrances. CLIENT shall not copy, duplicate, or furnish to others
nor shall it permit others to copy, duplicate, or furnish to others,
any version of XCENT's property. Client shall not create or attempt to
create, nor permit others to create or attempt to create any of XCENT's
property. CLIENT shall notify XCENT immediately of the unauthorized
possession, use or knowledge of any item supplied to CLIENT pursuant to
this AGREEMENT. Neither this AGREEMENT nor CLIENT's rights hereunder
shall be assigned, transferred or sublicensed. In the event CLIENT
breaches or attempts to breach any of the provisions of this Paragraph,
XCENT shall have the right, in addition to such other remedies which
may be available to it, to injunctive relief enjoining such breach or
attempt to breach, it being acknowledged that legal remedies are
inadequate. The provisions of this Paragraph shall survive the
termination of this AGREEMENT.
C. Client's Prior Works Of Authorship XCENT may need to take
possession of CLIENT'S previously existing WORKS OF AUTHORSHIP in order
to produce DELIVERABLES. Insofar as these WORKS OF AUTHORSHIP
originated with the CLIENT, the CLIENT retains full ownership of these
WORKS OF AUTHORSHIP. XCENT agrees to provide the same level of
responsible caretaking in the use of these WORKS OF AUTHORSHIP that
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CLIENT agrees to provide for XCENT'S PRIOR WORKS OF AUTHORSHIP as
stipulated in Section 13 Paragraph B.
D. Original Works Of Authorship DELIVERABLES that represent original
WORKS OF AUTHORSHIP created under this AGREEMENT are jointly owned by
both XCENT and CLIENT. No restriction is placed upon CLIENT'S right to
the proper use of these WORKS OF AUTHORSHIP except CLIENT may not
remove or modify copyright and author notices from the DELIVERABLES.
No restriction is placed upon XCENT's right to the proper use of these
WORKS OF AUTHORSHIP except as follows: 1.) XCENT may not use or divulge
any WORKS OF AUTHORSHIP to any individual, agent or other entity whose
principle business activity comes in direct competition with the
Client; 2.) XCENT may not distribute WORKS OF AUTHORSHIP for purposes
of profit, except as explicitly specified in writing and agreed to by
CLIENT. Neither CLIENT nor XCENT shall permit unauthorized use of any
WORKS OF AUTHORSHIP stemming from this AGREEMENT without prior written
permission from the other party.
E. Xcent's Retail Products CLIENT understands XCENT develops PRODUCTS
for licensing in the retail market. When determined that the inclusion
of these PRODUCTS as part of the DELIVERABLES is of mutual benefit,
CLIENT understands that the use of these PRODUCTS are covered under a
separate licensing agreement and that this AGREEMENT does not in any
way alter the terms and conditions of the PRODUCT license.
14 SOFTWARE ESCROW
For purposes of this AGREEMENT, SOURCE CODE is defined as the plaintext
components of the software development process which are submitted to a
compiler or interpreter that results in an APPLICATION, the DELIVERABLE
capable of carrying out the intended tasks on an electronic computer.
It is the normal practice of XCENT to maintain guardianship of all
SOURCE CODE produced during the course of work. In the event that any
WORK ORDER stipulates the delivery of SOURCE CODE, the XCENT sets forth
the following terms and conditions for its release:
1.) CLIENT has satisfied all outstanding financial obligations to
XCENT as identified by XCENT;
2.) CLIENT requires no further changes or improvements to the
APPLICATION(s) and XCENT has no outstanding requests to change or
improve the APPLICATION(s);
3.) The delivery of SOURCE CODE does not release CLIENT of its
obligations set forth in the AGREEMENT under the terms of Section 13
OWNERSHIP OF WORKS OF AUTHORSHIP;
4.) Any third party subsequently retained by CLIENT to work with
SOURCE CODE must stipulate in writing to the terms of Section 13
OWNERSHIP OF WORKS OF AUTHORSHIP;
5.) SOURCE CODE will be delivered to CLIENT on a suitable computer
readable media in a tamper-evident package. Breaking the seal on this
package will void any warranties XCENT granted CLIENT as part of this
AGREEMENT;
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6.) XCENT will not provide development tools, third party
libraries, and other components that were neither developed by the
XCENT under this agreement, nor specifically purchased for and billed
to the CLIENT (i.e. a DELIVERABLE). These tools such as Compilers,
Controls, and design-time DLLs (Dynamic Link Libraries) are licensed to
XCENT from third party providers for XCENT's use only and are not
redistributable except in runtime form when delivered with an
APPLICATION.
XCENT may provide libraries and/or applications that have been
developed by XCENT outside the scope of this AGREEMENT which may be
included as a necessary component of the delivered SOURCE CODE. These
libraries and/or applications will be provided only in their binary
format. The use of these supplied libraries and/or applications is
governed by the terms of Section 13 OWNERSHIP OF WORKS OF AUTHORSHIP.
15 CLIENT FURNISHED DATA
All CLIENT furnished data shall remain the exclusive property of
CLIENT. XCENT agrees that such CLIENT data will be used for no purpose
other than for work for CLIENT under this AGREEMENT. Upon conclusion
of the work, such data shall be returned to CLIENT if requested.
16 PROPRIETARY INFORMATION
Except as required in the work for CLIENT or as specifically authorized
in writing by CLIENT, XCENT shall not disclose or use at any time,
either during or subsequent to the period of this AGREEMENT, any
proprietary information disclosed by CLIENT to XCENT not in its
possession prior to the date of such disclosure or later disclosed to
it by sources entitled to do so. XCENT in providing services to CLIENT
may use its proprietary information. Wherever XCENT specifies
information to be proprietary CLIENT shall keep it confidential, use it
only for the purposes of the project for which it is provided, and not
disclose it to others without XCENT's permission.
17 FORCE MAJEURE
Should completion of any portion of the services be delayed by a Force
Majeure, the parties to this AGREEMENT shall mutually agree on the
basis upon which the services shall be continued or terminated. Force
Majeure means unforeseeable causes beyond the control of XCENT
including the following: acts of God or the public enemy, acts of the
Government of the United States or of the several States, acts of other
contractors of CLIENT, strikes, and other similar causes that would
adversely impact XCENT's ability either short or long term to complete
its obligations to the open WORK ORDERS of this AGREEMENT. CLIENT and
XCENT agree that calls for public service such as jury duty, grave
illness of either XCENT staff, an immediate family member, or death of
immediate family members meets the definition of Force Majeure provided
that CLIENT is notified within twenty-four (24) hours of the event.
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18 SUSPENSION OF WORK
CLIENT may, by notice in writing, suspend the performance of all or any
of the currently open WORK ORDERS. Upon receipt of such notice, XCENT
shall discontinue services as soon as is practicable, to the extent
specified in the notice. Unless otherwise stated in the notice, XCENT
shall continue to protect and maintain work in process and completed
work. In the event of suspension, XCENT will be reimbursed for costs
expended to date and other costs resulting from the suspension.
Suspension of any or all of the open WORK ORDERS does not release the
CLIENT from any responsibility to pay monies due for work performed
while the WORK ORDER(s) is(are) active. This includes, but is not
limited to, any work partially completed and/or hours accumulated in
research performed to satisfy the original requests of the CLIENT,
whether or not DELIVERABLES have been furnished at the time of
suspension. XCENT shall resume work, upon direction to do so by
CLIENT, as soon as is feasible but only after the XCENT has been paid
in full for the time and materials already expended. If at the time of
the continuation, XCENT's rates have changed, CLIENT shall pay for
services at the new rate.
19 TERMINATION
CLIENT may terminate any open WORK ORDER for its convenience by written
notice to XCENT. XCENT will be reimbursed for costs expended to date
and other costs resulting from the termination. Termination of any or
all of the open WORK ORDERS does not release the CLIENT from any
responsibility to pay monies due for work performed while the WORK
ORDER(s) is(are) active. This includes, but is not limited to, any
work partially completed and/or hours accumulated in research performed
to satisfy the original requests of the CLIENT, whether or not
DELIVERABLES have been furnished at the time of termination.
CLIENT may terminate this AGREEMENT for default by written notice to
XCENT:
1.) if XCENT becomes involved in bankruptcy or other legal
proceedings that in the opinion of CLIENT interfere with the
performance of services; or;
2.) if XCENT fails to perform any of the provisions of this
AGREEMENT or fails to make reasonable progress in the work, and in
either of these two circumstances does not cure such failure within a
period of ten (10) days (or such longer period as CLIENT may authorize
in writing) after receipt of notice from CLIENT specifying such
failure.
XCENT may terminate this AGREEMENT for default by written notice to the
CLIENT:
1.) CLIENT fails to perform any of the provisions of this
AGREEMENT; or
2.) the CLIENT becomes insolvent or files for bankruptcy
protection.
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Either the CLIENT or XCENT may terminate this AGREEMENT for its
convenience on thirty (30) days advance written notice to the other
party. In the event of termination of this AGREEMENT, the CLIENT shall
immediately pay XCENT in full for all time and materials already
expended by XCENT.
20 REPORTS
CLIENT shall have the right to request written reports describing
progress, cost data, and other matters pertaining to the services
beyond those project summaries provided on a monthly basis. CLIENT
shall pay XCENT's normal charges for preparation of such reports.
21 INVENTIONS
Any improvements and inventions conceived by XCENT, arising out of the
services, shall be the sole and exclusive property of XCENT.
22 FORBEARANCE
XCENT may forebear breach of any one or more of the terms of this
AGREEMENT by CLIENT. Forbearing any breach does not indicate XCENT's
intent to eliminate or relieve CLIENT, unless specified in writing, of
an obligation set forth by the terms of this agreement nor does it
remove or weaken XCENT's right to seek restitution in accordance with
this AGREEMENT for breach at any time. CLIENT may forebear breach of
any one or more of the terms of this AGREEMENT by XCENT. Forbearing
any breach does not indicate CLIENT's intent to eliminate or relieve
XCENT, unless specified in writing, of an obligation set forth by the
terms of this agreement nor does it remove or weaken CLIENT's right to
seek restitution in accordance with this AGREEMENT for breach at any
time.
23 ENFORCEABILITY
If at any time it is determined that any paragraph or portion of
paragraph is deemed unenforceable by the laws of the Commonwealth of
Pennsylvania, then only that portion of this AGREEMENT shall be
stricken with the balance of this AGREEMENT to be in full force and
effect.
24 GOVERNING LAW
This AGREEMENT will be interpreted in accordance with the laws of the
Commonwealth of Pennsylvania.
25 ARBITRATION
Any controversy or claim between XCENT and CLIENT arising out of or
relating to this AGREEMENT or the performance or breach thereof, and
any claims of negligence, gross negligence, fraud or misrepresentation
related thereto, but excluding actions for equitable or injunctive
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relief pending an arbitration award, shall be settled by arbitration in
Philadelphia, Pennsylvania, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and
judgement entered upon the award by the arbitrator may be entered in
any court having jurisdiction thereof.
26 ENTIRE AGREEMENT
This AGREEMENT constitutes the entire AGREEMENT between CLIENT and
XCENT. Any modification to it must be in writing and signed by both
parties. IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their authorized representatives.
CLIENT
Attest By
------------------------------
CLIENT's Authorized Agent
Date
------------------------------
XCENT
Attest By
------------------------------
XCENT's Authorized Agent
Date
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