STRATEGIC ALLIANCE AGREEMENT
BETWEEN
IXC COMMUNICATIONS SERVICES, INC.
AND
CYNET COMPUTER CORPORATION
Table of Contents
Strategic Alliance Agreement Terms and Conditions.............................3
Exhibit A - Contracts................................................12
Exhibit B - Alliance Project Process.................................13
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STRATEGIC ALLIANCE AGREEMENT
CYNET Computer Corporation a Corporation organized under the laws of the
State of Texas, and, having a place of business at Houston, Texas, and IXC
Communications Services, Inc. ("IXC"), a Corporation organized under the laws
of the State of Delaware and having a principal place of business at 0000
Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx, Xxxxxx, XX 00000-0000 (hereinafter "IXC"),
agree to enter into this agreement (the "Alliance Agreement") as of the date
of execution below (the "Effective Date").
1. RELATIONSHIP OBJECTIVES
This Alliance Agreement creates a framework of cooperation under which the
parties can explore potential collaborative opportunities for achieving their
respective objectives. The objectives for each party under this Alliance
Agreement are as set forth below:
1.1 IXC'S OBJECTIVES IN ENTERING INTO THIS ALLIANCE ARE TO:
(a) Implement the first, nationwide fiber optic based
network infrastructure utilizing SONET technology for the
transport of data communications traffic at wire-speed, OC-48
transmission rates.
(b) Continue to maximize the investment in IXC's
nationwide, fiber optic network infrastructure by providing
emerging technology solutions, data and Internet products and
services in the small-medium market sector.
(c) Gain market and industry recognition in the data and
Internet services arena in the small-medium market arena by
providing technically sound and profitable products and services.
(d) Become a major Value Added solutions service provider
in the small-medium market arena.
1.2 CYNET's objectives in entering into this alliance are to assist
in the overall growth of IXC's value added service offerings in
the following areas: web site and e-commerce solutions, fax and
internet messaging, list and database services.
2. EXECUTIVE SPONSOR AND MANAGEMENT TEAM
CYNET and IXC each appoint the individuals identified in Exhibit A to this
Alliance Agreement as executive sponsors responsible for monitoring the
relationship, conducting periodic briefings for each other and their teams,
and providing a defined means of communication with other senior executives.
CYNET and IXC also appoint the individual(s) identified in Exhibit A to this
Alliance Agreement as Corporate Champions responsible for the day-to-day
coordination of alliance issues.
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3. SCOPE OF ALLIANCE
The parties anticipate at the time of the execution of this Alliance
Agreement that the scope of the Alliance will include some or all of the
following joint activities and commitments. All projects will be mutually
defined according to the then current policies and practices of IXC's and
CYNET's Marketing Organization and will be the subject of alliance
discussions and ultimately of specific agreements ("Specific Agreements")
according to the process set forth in Section 4 of this Alliance Agreement.
3.1 SERVICE DEVELOPMENT. IXC is currently undergoing rapid product
definition and product development in relation to Internet, VPN, VoIP, FoIP,
and integrated services (voice, video, data, hosting, colocation, messaging,
and E-Commerce). Given this rapid product definition and product development
phase, IXC is interested in having CYNET's team work with IXC's product
management team in the following areas: product definition, product
development, product roll-out, end-to-end service development, and joint
marketing efforts.
Possible joint services include (in order of priority):
(a) IXC-CYNET SEMINAR PROGRAMS: CYNET and IXC will jointly
develop and conduct technical marketing presentations that shall
encompass CYNET's and IXC's sales and marketing objectives in an
effort to brand IXC's value added services. These technical
seminars will be targeted based on the jointly defined and
developed products and services that IXC is rolling out as its
value added services.
(b) BROADCAST FAX: CYNET and IXC will work together to
tailor and package CYNET's Broadcast Fax products and services
for distribution through IXC's Eclipse Sales channel. These
services may enhance CYNET's Broadcast Fax, List Services,
Document Graphics and Copy Writing.
(c) WEB CONTENT DEVELOPER PROGRAM: CYNET agrees to
alpha-test IXC's Web Content Developer Program. IXC's Content
Developer Program is targeted at recruiting and retaining Web
Content Developers. The goal of the Content Developers Program is
to have Content Developers place their servers in IXC collocation
facility and IXC will provide leads to the developer.
(d) Live Auction Service: IXC and CYNET may work together
to develop an interactive auction service targeted to the
existing auction houses that wish to provide live auctions on the
internet. This service will allow views to watch live auctions
and to bid on them.
(e) Interactive Multimedia: IXC and CYNET may work together
to develop and market a fully interactive multimedia solution.
This multimedia solution will include voice, fax, video and
collaborative computing.
(f) VIRTUAL ISP: IXC and CYNET may work together to market
a Virtual ISP service to CYNET's customer base. The Virtual ISP
service will allow executives the ability to quickly enter the
ISP business without the capital
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investment.
(g) MOBILE/WIRELESS DATA: IXC and CYNET may work together
to develop and market a Wireless Data Service using CYNET
wireless modern technology if commercially available.
3.2 JOINT MARKETING AND PROMOTIONAL CAMPAIGNS. The parties agree
to work together in identifying and pursuing promotional activities designed
to enhance the Alliance Agreement. These efforts may include the promotion of
the relationship by each party within their respective organizations, website
promotion, trade show collaboration, newsletter highlights, participation in
public relations activities, use of each other's trademarks or ingredient
marks (collectively "Marks") on specific targeted creative advertising
executions, and press releases and other promotions that benefit both
parties. The initial projects agreed to by the parties are as follows:
(a) JOINT PROMOTION AND PRESS RELEASES: The Parties agree
to develop a public relations plan to support IXC's service and
marketing launch. Communication content will be developed jointly
by the Parties, and will include, but not be limited to,
executive presentations by the Parties, analyst briefings, press
releases, positioning, branding and messaging. Specifically,
CYNET and IXC will develop joint press releases and
communications that communicate the following messages to the
public, subject to any legal or regulatory requirements:
- Announcement of IXC - CYNET Alliance;
- Announcement of IXC - CYNET joint product development.
(b) As part of the IXC - CYNET's Marketing Program, the
parties agree to jointly develop a program to utilize trade shows
and seminars as a vehicle for promoting IXC's products and
services. CYNET will work with IXC to implement IXC - CYNET's
Alliance Tradeshow Program targeted at the Small-Medium Business
market based on the anticipated roll-out of IXC's data and
Internet products and services. The content and location will be
mutually agreed upon by CYNET and IXC project lead.
3.3 TRAINING AND EDUCATION. The parties agree to work together in
identifying training and educational requirements to support the alliance and
to develop a Training and Education plan.
4. ALLIANCE PROJECT PROCESS
4.1 WRITTEN AGREEMENTS. The terms of projects undertaken by the
parties under Section 3.1 (Service Development) will be set forth, in
Specific Agreements which will be identified in an Addendum to this Alliance
Agreement. Each Specific Agreement will contain the applicable information
set forth in the template attached at Exhibit B.
4.2 CUSTOMER OPPORTUNITIES. The parties agree that there may be
potential customer
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opportunities whereby each party would benefit from forming a team to utilize
complimentary capabilities to obtain business in a specific customer
situation. The parties shall utilize the processes set forth in a Master
Teaming Agreement and individual Teaming Agreements.
5. COST SHARING, REIMBURSEMENT OF COSTS OR PAYMENTS BETWEEN ALLIANCE MEMBERS
PENDING SPECIFIC AGREEMENTS
All costs incurred by either party in connection with the Alliance Agreement
shall be the sole responsibility of the party incurring the costs.
6. CONFIDENTIAL INFORMATION AND PUBLICITY
6.1 NON-DISCLOSURE AND USE RESTRICTION. Except as set forth below in
paragraph 6.2, the parties agree to maintain the confidentiality of, and
refrain from using, other than for the express purpose of this Alliance
Agreement or any of the Specific Agreements, confidential or proprietary
information relating to the other party's business, including without
limitation, the contents of this Alliance Agreement, technical processes and
formulas, source codes, names, addresses and information about users and
advertisers, product designs, sales, costs and other unpublished financial
information, product plans, and marketing data; provided that to the extent
that such information is publicly known, already known by, or already in the
possession of the non-disclosing party; is independently developed by the
non-disclosing party; is thereafter rightly obtained by the non-disclosing
party, from a source other than the disclosing party; or is required to be
disclosed by law, regulation, or court order and then only after prompt prior
notification to the other party of such required disclosure; then there shall
be no restriction on the use or disclosure of such information. The
obligations of this paragraph shall be in effect during the term of this
Alliance Agreement and for two (2) years following expiration or termination
hereof.
6.2 PUBLICITY. Any marketing, advertising, promotional materials,
press releases or other public announcements regarding this Alliance
Agreement, or any of the Specific Agreements, shall not be made without prior
written consent of both parties, except as required by law, in which case the
other party shall be consulted, to the extent reasonably practicable, as to
the content and timing of such release, announcement or Statement.
7. RIGHTS IN INVENTIONS
Subject to the terms of any contract executed between IXC and CYNET pursuant
to Section 4, any inventions, discoveries or new technology ("Developments")
developed independently by one of the parties pursuant to this Agreement
shall remain the property of the originating party. Any joint Developments
shall be owned as agreed by IXC and CYNET, and no joint Development shall
commence until such a separate agreement has been executed by authorized
officials of the parties.
8. TERM AND TERMINATION
8.1. The Alliance Agreement commences on the Effective Date and will
continue in effect for three (3) years ("Term").
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8.1 (a) Either party may terminate this Alliance Agreement for any
reason or no reason and at any time by providing thirty (30) days
written notice to the other party.
(b) Either party may terminate this Alliance Agreement upon
written notice to the other party in the event of a material
breach, which remains uncured thirty (30) days after previous
written notice by the non-defaulting party.
8.2 In the event of termination of this Alliance Agreement, all
existing Alliance projects as described in Section 4 shall survive and
continue under the terms specified in each specific agreement until
expiration. Notwithstanding the above, the parties agree that in cases where
it is to the mutual benefit of both parties, Alliance project agreements can
be terminated with mutual consent. Neither party shall have any obligation to
undertake new activities or projects, and all obligations and rights of the
parties shall terminate, with the exception of Sections 6.1 (Confidential
Information) but only to the extent that section provides for survival of
termination 6.2 (Publicity), 7 (Rights in Inventions), 10.4 (Consequential
Damages Waiver) and 10.7 (Dispute Resolution) of this Alliance Agreement,
which provisions shall survive expiration or termination. Upon termination,
the parties agree to promptly return to each other all proprietary and
confidential information of the other party.
9. PURCHASE OF CYNET OR IXC PRODUCTS AND SERVICES
9.1 In the event IXC contemplates purchase of Products or Services,
and CYNET offers such products or services, then IXC shall consider in good
faith but without obligation such proposals or service offerings as CYNET
shall submit to IXC for consideration. IXC agrees, without obligation of any
kind, to consider CYNET.
9.2 In the event CYNET contemplates purchase of Products or Services,
and IXC offers such products or services, then CYNET shall consider in good
faith but without obligation such proposals or service offerings as IXC shall
submit to CYNET for consideration. CYNET agrees, without obligation of any
kind, to consider IXC.
10. GENERAL PROVISIONS
10.1 AMENDMENT. No change, amendment or modification of any provision
of this Alliance Agreement shall be valid unless set forth in a written
instrument signed by both parties.
10.2 ENTIRE AGREEMENT. This Alliance Agreement sets forth the entire
agreement and supersedes any and all prior or contemporaneous agreements and
representations, written or oral, of the parties with respect to the
transactions set forth herein except for the Memorandum of Understanding of
even date herewith. The parties acknowledge that as of the date hereof, no
binding commitments exist between the parties with respect to the subject
matter of this Alliance Agreement except as
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may be provided herein.
10.3 ASSIGNMENT. Neither this Alliance Agreement, nor any rights
hereunder in whole or in part, shall be assignable or otherwise transferable
by either party without the express written consent of the other.
10.4 CONSEQUENTIAL DAMAGES WAIVER. EXCEPT FOR A MATERIAL BREACH OF A
PARTY'S CONFIDENTIALITY OBLIGATION OR A VIOLATION OF A PARTY'S INTELLECTUAL
PROPERTY RIGHTS, NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER ANY CONTRACT, STRICT
LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT,
INCIDENTAL, DIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, LOSS OF BUSINESS OR LOSS OF
PROFIT. ALL LIABILITY UNDER THIS ALLIANCE AGREEMENT IS CUMULATIVE AND NOT PER
INCIDENT. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
10.5 CONFLICT. in the event of conflict between this Alliance
Agreement and any Statement of Work under this Alliance Agreement, the
Statement of Work shall control as to the subject matter of the Statement of
Work.
10.6 CONSTRUCTION. In the event that any provision of this Alliance
Agreement conflicts with the law under which this Alliance Agreement is to be
construed, or if any such provision is held invalid by a court with
jurisdiction over the parties to this Alliance Agreement, such provision
shall be deemed to be restated to reflect as nearly as possible the original
intentions of the parties in accordance with applicable law, and the
remainder of this Alliance Agreement shall remain in full force and effect.
10.7 DISPUTE RESOLUTION. Each party agrees that any dispute between
the parties relating to this Alliance Agreement will first be submitted in
writing to a panel of two senior executives of CYNET and IXC, who shall
promptly meet and confer in an effort to resolve such dispute through good
faith consultation and negotiation. Each party's executives shall be
identified by notice to the other party, and may be changed at any time
thereafter also by notice to the other. In the event the executives are
unable to resolve any dispute within thirty (30) days after submission to
them, either party shall be free to seek any available remedies it may have
at law or at equity.
10.8 INDEPENDENT CONTRACTORS. The parties to this Alliance Agreement
are independent contractors. Neither party is an agent, representative, or
CYNET of the other party. Neither party shall have any right, ,power, or
authority to enter into any agreement for, or on behalf of, or incur any
obligation or liability of, or to otherwise bind, the other party. This
Alliance Agreement shall not be interpreted or construed to create an
association, agency, joint venture, or Partnership
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between the parties or to impose any liability attributable to such a
relationship upon either party.
10.9 NO WAIVER. The failure of either party to insist upon or enforce
strict performance by the other party of any provision of this Alliance
Agreement, or to exercise any right under this Alliance Agreement, shall not
be construed as a waiver or relinquishment of such party's right to enforce
any such provision or right in any other instance.
10.10 NOTICE. Any notice, approval, request, authorization, direction,
or other communication under this Alliance Agreement shall be given in
writing directed to the addresses of the parties below, and shall be deemed
to have been delivered and given for all purposes: (i) on the delivery date
if delivered by electronic mail; (ii) on the delivery date if delivered
personally to the party to whom the same is directed; (iii) one (1) business
day after deposit with a commercial overnight carrier with written
verification of receipt; or (iv) five (5) business days after the mailing
date whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available to the Contact at the address of
the party to whom the same is directed.
10.11 FORCE MAJEURE. Neither party shall be deemed in violation of this
Alliance Agreement if it is prevented from performing any of the obligations
under this Alliance Agreement by reason of severe weather and stones;
earthquakes or other natural occurrences; strikes or other labor unrest;
power failures; nuclear or other civil or military emergencies; acts of
legislative, judicial, executive or administrative authorities; or any other
circumstances which are not within its reasonable control.
10.12 GOVERNING LAW. This Agreement and any action related thereto
shall be governed, controlled, interpreted and defined by and under the laws
of the State of New York and the United States, without regard to the
conflicts of laws provisions thereof. The Parties specifically disclaim the
UN Convention on Contracts for the International Sale of Goods.
IN WITNESS WHEREOF, the parties hereto have executed this Alliance
Agreement as of the date first above written.
CYNET COMPUTER CORPORATION IXC COMMUNICATIONS SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ XX Xxxxxxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxxxxxxxx
Title: Executive VP/COO Title: VP, Value Added Services
Date 8-9-99 Date 8-9-99
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EXHIBIT A
LIST OF CONTRACTS
AS OF THE EFFECTIVE DATE
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RELATIONSHIP ELEMENT CYNET IXC CONTACT
SYSTEMS CONTACT
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RELATIONSHIP MANAGEMENT
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Executive Sponsorship Xxxxxxx Xxxxx Xxxx Xxxxxxxxxx
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JOINT
IXC-CYNET PROJECTS
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Broadcast Fax Xxxx Xxxxxx Xxx Xxxxxx
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Public Relations Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxx
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Joint Marketing Campaigns Xxxxxxx Xxxxx Xxxx Xxxxx
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Joint Promotion Xxxxxxx Xxxxx Xxx Xxxxxxx
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IXC-CYNET Xxxxxxx Xxxxxxxx Xxxx Xxxxx
Seminar Program
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Tradeshows/Events Xxxxxxx Xxxxxxxx Xxxx Xxxxx
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* The contacts designated above are subject to change. Both parties will
promptly notify the other party of any changes and relevant contact
information.
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EXHIBIT B
IXC - CYNET ALLIANCE PR0JECT PROCESS
1. TYPES OF SPECIFIC AGREEMENTS. The parties may enter into Specific
Agreements, which include but are not limited product development,
marketing, services, administration and cooperative studies.
2. CONTENTS OF EACH SPECIFIC AGREEMENT. Each Specific Agreement must contain
(or incorporate as attachments or by reference).
- A reference to the Alliance Agreement;
- Designation of the names, business addresses, and telephone numbers
of the PROGRAM MANAGER of the Specific Agreements;
- Amount, schedule and method of compensation, if any;
- Identification of any development baseline, DELIVERABLES, and/or
services to be provided to either party pursuant to the Specific
Agreements and related license terms; and
- Timetable for performance and completion, including milestones,
schedules and delivery dates, where appropriate.
- In addition, when applicable or appropriate, a Specific Agreement
may contain (or incorporate as attachments or by reference) the
following or any other terms the parties may agree upon:
- Provision for written and oral progress reports by the PROGRAM
MANAGER;
- Acceptance standards for deliverables and or reports, including (1)
documentation, specifications and standards, (2) quality standards,
(3) performance specifications and (4) usability and architecture
requirements;
- A list of any equipment, components, and software to be supplied
for use in connection with the Specific Agreements;
- Any limitation on the locations of performance or storage of IXC or
CYNET confidential information;
- Specifications of the DEVELOPMENT ENVIRONMENT with which any CODE
was prepared;
- A description of the facilities, equipment, MATERIALS or resources
to be provided by IXC and/or CYNET;
- Any agreed to restriction on subcontracting;
- Resource requirements, including training and assignment of key
personnel; and
- The term of the Specific Agreements, and any other termination
provisions.
- A list of trademarks, patents, copyrights, trade secrets, and other
intellectual properties (if any) licensed by one party to the other
under the Specific Agreements, and applicable guidelines and
restrictions on any licenses granted.
- A Statement of the ownership of any intellectual property provided
by a party or created, separately or jointly by the parties, under
each Specific Agreement.
- The signatures of the parties.
3. DEFINITIONS. Unless the context clearly requires otherwise, the capitalized
terms used herein shall have the same meaning as ascribed to the terms
below.
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a. DELIVERABLES - shall mean any MATERIALS or other items which result
from performance under a Specific Agreement and which arc required
to be delivered by virtue of their description or specification in
a Specific Agreement.
b. DERIVATIVE WORK - shall mean a work which is based upon one or more
preexisting works, such as a revision, enhancement, modification,
translation, abridgment, condensation, expansion, or any other form
in which such a preexisting work may be recast, transformed, or
adapted, and which, if prepared without authorization of the owner
of the copyright in such preexisting work, would constitute
copynght infringement under United States law.
c. DEVELOPMENT ENVIRONMENT - shall mean the devices, programming,
documentation, media and other development tools, including
compilers, workbenches, tools, and higher-level or proprietary
languages, used or required by a party for the development,
maintenance and implementation of any DELIVERABLE.
d. MATERIALS - shall mean software code, documentation, other written
materials or tangible media, including machine-readable media with
software code or documentation recorded thereon, hardware, or any
combination of the foregoing.
4. PROCEDURE FOR ENTERING INTO SPECIFIC AGREEMENTS.
a. Either party may propose a Specific Agreement. The other party
shall provide a preliminary response indicating its willingness to
enter into negotiations of the Specific Agreement within 30 days.
b. Each Specific Agreement entered into under this Alliance Agreement
shall become effective only when executed by authorized
representatives of both parties. For CYNET the authorized
representative is the Vice President, Americas. For IXC, the
authorized representative is (To Be Provided).
c. Neither party is obligated hereby to the issuance or execution of
any Specific Agreement. Each Specific Agreement entered into under
this Alliance Agreement shall be construed to incorporate the
provisions of, and be governed by, this Alliance Agreement.
5. PROGRAM MANAGEMENT. Unless otherwise specified in a Specific Agreement, the
PROGRAM MANAGER shall be responsible for the design and development of
DELIVERABLES developed under a Specific Agreement and shall be responsible
for providing customer requirements and testing the DELIVERABLES. All
communications between the parties relating to technical performance and
the preparation and the delivery of DELIVERABLES under a Specific Agreement
shall take place between PROGRAM MANAGERS named in the Specific Agreements.
The additional responsibilities of the PROGRAM MANAGER with respect to the
applicable Specific Agreements are as follows:
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- Arrange meetings, visits and consultations between the parties
concerning matters related to the applicable Specific Agreements;
- Chair periodic status reviews of the applicable Specific
Agreements;
- Coordinate amendments (including documenting and signing or
initialing such amendments) to the Specific Agreements.
- Supervise submission and acceptance of all MATERIALS pursuant to
the Specific Agreements, including the delivery, testing and
acceptance of DELIVERABLES;
- Supervise the transfer of any information in accordance with the
Specific Agreements; and
- Prepare written progress reports pursuant to the provisions of the
Specific Agreements.
6. CHANGES IN COORDINATORS. Either party may replace any of the people
referenced in this Section by delivering written notice of the change to
the other party. The notice must be signed by either the responsible
executives of the party making the change, or by an authorized signatory of
that party. The notice shall set forth the name, business address and
telephone number of the replacement.
7. PROGRESS REPORTS. Unless otherwise provided in the applicable Specific
Agreements, the PROGRAM MANAGER of one party shall provide to the PROGRAM
MANAGER of the other party monthly written progress reports for such
Specific Agreements specifying the current work progress level and
identifying any problems that have been resolved and any problems that are
unresolved, along with a projected date of resolution.
The PROGRAM MANAGER shall also notify the PROGRAM MANAGER promptly in
writing of any factor, event or anticipated event that may affect the
ability to meet the requirements of any Specific Agreements, including
changes in the assignment of its key employees, strikes and labor unrest,
or unavailability of critical resources. Except as provided in the Force
Majeure provisions of this Alliance Agreement, the issuance of such a
notice shall not excuse the party from any default or performance
obligation, unless the other party consents.
8. SUBCONTRACTORS AND EMPLOYEES. Each party agrees that it will use
commercially reasonable efforts to ensure that all employees,
subcontractors or agents engaged by such party who assist with or
contribute to that party's duties, obligations or performance under any
Specific Agreements are aware of and comply with provisions of this
Alliance Agreement.
9. SEVERABILITY. Each Specific Agreement is intended to constitute an
independent and distinct agreement of the parties, notwithstanding the fact
that each shall be construed to incorporate all applicable provisions of
the Alliance Agreement. If any provisions of any contract document is held
by a court of competent jurisdiction to be contrary to law, the remaining
provisions of the contract document will remain in full force and effect
and shall be interpreted, to the extent possible, to achieve the purpose of
this Alliance Agreement and any affected Specific Agreements as originally
expressed without the invalid, illegal or unenforceable provision.
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