Exhibit 10.2
ALLIANCE AGREEMENT
This Alliance Agreement (Agreement) is entered into as of February 8, 2000
(Effective Date) by and between XxxxxXxxxxxxx.xxx, LLC, a Delaware limited
liability company (PEx) and Impresse Corporation, a California corporation
(Impresse).
Background
Impresse provides business-to-business e-commerce solutions for the purchasing
and production of commercial print including project specification, quoting,
proofing, production management, reporting and billing to customers in the
printing and publishing market, including book publishers, commercial printers,
in-plant printing facilities within large corporations, and quick publishers;
PEx operates an electronic forum for the buying, selling and trading of pulp,
paper and paper packaging products. Impresse and PEx see a mutually beneficial
opportunity to serve the needs of Impresse customers to obtain access to PEx
exchange information and services in connection with the paper procurement
process.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Impresse and PEx agree as follows:
1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined herein
shall have the meaning set forth below.
Affiliate means with respect to either party, any Person that, directly or
indirectly, is controlled by, controls or is under common control with such
party. For purposes of this Agreement, control means, with respect to any
Person, the direct or indirect ownership of more than fifty percent (50%) of the
voting or income interest in such Person or the possession otherwise, directly
or indirectly, of the power to direct the management or policies of such Person.
Confidential Information means all proprietary and confidential
information of a party, including, without limitation, trade secrets, technical
information, business information, sales information, customer and potential
customer lists and identities, product sales plans, sublicense agreements,
inventions, developments, discoveries, software, know-how, methods, techniques,
formulae, data, processes and other trade secrets and proprietary ideas, whether
or not protectable under patent, trademark, copyright or other intellectual
property laws provided by either party to the other party pursuant to this
Agreement in written or other tangible medium and marked as confidential, or if
disclosed orally or displayed, confirmed in writing at the time of disclosure,
except any portion thereof which: (a) is known to the receiving party, as
evidenced by the receiving party's written records, before receipt thereof under
this Agreement; (b) is disclosed to the receiving party by a third person who is
under no obligation of confidentiality to the disclosing party hereunder with
respect to such information and who otherwise has a right to make such
disclosure; (c) is or becomes generally known in the trade through no fault of
the receiving party; (d) is independently developed by the receiving party, as
evidenced by the receiving party's written records, without access to such
information; or (e) is the subject of a subpoena or other validly issued
administrative or judicial process requesting disclosure of such Confidential
Information; provided, the party that receives such order or process provide
prompt notice to the disclosing party and permits the disclosing party to
contest or narrow such request for disclosure and thereafter complies with such
subpoena or other process.
Content means the PEx Content and the Impresse Content, as the case may
be.
Force Majeure means any event beyond the control of the parties,
including, without limitation, failures of computers, computer-related
equipment, hardware or software, fire, flood, riots, strikes, epidemics, war
(declared or undeclared and including the continuance, expansion or new outbreak
of any war or conflict now in existence), embargoes and governmental actions or
decrees.
Impresse Content means the information and materials available on
Impresse's Site described on Attachment B attached hereto, including, as
applicable, text as well as graphical, video and audio information.
Impresse Sites means any Sites owned, operated or controlled by Impresse,
including the Site located at xxx.xxxxxxxx.xxx (and any successors thereto);
provided, that with respect to any "storefront" or similar derivative Sites
* Confidential Treatment Requested: material has been omitted and filed
separately with the Commission.
created by Impresse, the inclusion of such Sites as Impresse Sites for purposes
of this Agreement shall be made by Impresse, in its sole discretion.
Integration means the (a) computer object codes (machine readable format);
(b) specifications; (c) executable Application Program Interface (API) modules;
(d) API information; (e) configuration files, reference data files, help files
and spreadsheets used to maintain any reference data; (f) assembly, test,
installation and service instructions; (g) engineering, programming, service and
maintenance notes and logs; (h) technical, operating and service and maintenance
manuals; (i) hardware reference manuals; user documentation; (j) training
materials; and (k) other data, information and know-how, which is necessary and
desirable to design, manufacture, assemble, service, maintain, install, operate,
use or test the software integration between the Impresse Xxxxxxxx.xxx network
software described in Attachment B and the PEx [exchange] software described in
Attachment B, together with any additions, developments, enhancements,
improvements, updates and other changes in such software made during the term of
this Agreement.
Person means any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability company,
limited liability partnership, unincorporated organization, government (or any
agency or political subdivision thereof) or other legal entity or organization.
PEx Content means the information and materials described on Attachment B
attached hereto, including, as applicable, text as well as graphical, video and
audio information.
PEx Sites means any Sites owned, operated or controlled by PEx, including
without limitation the Site located at xxx.xxxxxxxxxxxxx.xxx (and any successors
thereto).
Site means an Internet World Wide Web site.
Trademarks means (i) the trademarks described on Attachment C, and (ii)
any other trademarks, as may be agreed upon in writing from time to time by the
parties for use by the parties in connection with the activities contemplated by
this Agreement.
Other Defined Terms. Each of the following terms have the meanings
ascribed to it in the section set forth opposite such term:
Agreement Recitals
Alliance Manager(s) Section 2.8
Change Control Document Section 2.4
Change Request Section 2.4
Effective Date Recitals
Final Specifications Section 2.1; Attachment B
Fix Period Section 2.6
Impresse Recitals
Impresse Content Section 2.7; Attachment B
Impresse Link Section 2.6
Impresse Services Section 3.1
Impresse-sourced Customer(s) Section 4.1
Indemnifying Party Section 7.3
indemnitees Section 7.3
Links Section 2.6
Losses Section 7.2
Material Nonconformity Section 2.6
Milestone Delivery Section 2.2
Milestone Requirements Section 2.2
Milestone Schedule Section 2.2; Attachment A
Net Revenue Section 4.1
PEx Recitals
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PEx Link Section 2.6
PEx Services Section 3.1
Redelivery Section 2.6
Requirements Section 2.1
Target Date Section 2.2
Test Period Section 2.5
2. INTEGRATION DEVELOPMENT
2.1 Specifications. The parties acknowledge that as of the Effective Date, the
complete specifications for the Integration have not been developed (the Final
Specifications). The objectives for the Integration include, but are not limited
to, (a) allow Impresse customers to search paper available on the PEx site, (b)
allow Impresse customers to procure paper posted on the PEx Site, (c) allow
Impresse customers to submit a request-for-quote on the PEx Site and (d) record
transactions completed on the PEx Site by Impresse-sourced Customers (as defined
below). The Integration implementing these objectives shall include at least the
functionality and performance features (the Requirements) as specified in
Attachment B. The Requirements are expected to be augmented, changed and refined
during the period commencing February 10, 2000 and ending April 1, 2000 and such
changes shall not require Change Requests (as defined in Section 2.4), except to
the extent they represent new business processes. As agreement is reached as to
detailed functional requirements and specifications and the performance
requirements, they will be specified in Attachment B.
2.2 Integration Construction. Each party will, at its own cost, will use
reasonable efforts to develop and deliver the components of the Integration
assigned to it under Attachment B by the target date set forth in Attachment B
(the Target Date). Subject to adjustment in accordance with Section 2.4, each
party will meet all Milestone Dates set forth in Attachment A (the Milestone
Schedule). On or before each Milestone Date listed in the Milestone Schedule,
each party shall complete the activities described in the Milestone Schedule
(each, a Milestone Delivery) that meet (i) the corresponding Milestone
Requirement(s) set forth opposite such Milestone Date, as well as (ii) all
Milestone Requirements for all previous Milestones (that is, the Milestone
Requirements are cumulative). Impresse will begin the Integration prior to
beginning integration efforts with any other paper procurement provider.
Impresse will also complete the Integration in accordance with the Final
Specifications prior to the completion of any integration with any other paper
procurement provider. PEx will begin the Integration prior to beginning
integration efforts with any other print purchasing and production management
provider. PEx will also complete the Integration in accordance with the Final
Specifications prior to the completion of integration with any other print
purchasing and production management provider. Notwithstanding the provisions of
this Section 2.2, it is understood and agreed that each party may simultaneously
work on other integration efforts and that the "priority" efforts specified in
the preceding two sentences will expire 7 months following the Effective Date.
2.3 Date Adjustments. PEx and Impresse each agree to perform the tasks assigned
to it in the Milestone Schedule. Each party acknowledges that delays in
performance by either party may cause delays in performance by the other party.
If either party's failure to timely meet its obligations under the Milestone
Schedule causes a material delay in the other party's performance, all dependent
Milestone Dates shall be adjusted day-for-day to account for such delay.
2.4 Change Procedures. Each party will have the right to inspect the progress of
the other party's work on the Integration at all reasonable times during the
development process and to confer with the other party to confirm compliance
with the Milestone Schedule, and each party will consult with the other party
concerning any matters that could cause a material delay in completion of the
Integration. No changes to the Milestone Schedule will be made without written
approval of the parties. Each party may request amendments to Milestone Schedule
to effect changes in the Integration. If either party wishes to make a change it
shall notify Impresse of the requested change specifying the change with
sufficient details to enable the other party to evaluate it (a Change Request).
Within five business days following the date of the receipt of a Change Request,
the receiving party shall deliver a document that: (a) assesses the impact of
the change on the schedule, and (b) incorporates a description of the requested
change (a Change Control Document). If the receiving party accepts the Change
Control Document, then the provisions of this Agreement shall be deemed amended
to incorporate such change in accordance with the Change Control Document. It is
the intent of the parties that the Milestone Schedule has been defined broadly
enough to accomplish the goals for the Integration and that within the Milestone
Schedule, no Change Requests will be required.
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2.5 Acceptance Testing. (a) Commencing upon receipt by each party of each
Milestone Delivery that is the responsibility of the other party, the receiving
party will, during the Test Period (as specified in the Milestone Schedule
opposite such Milestone Date), test the Milestone Delivery to determine whether
all applicable Milestone Requirements have been met. If one or more Milestone
Requirements are not met, the receiving party shall so notify the delivering
party, stating the problems encountered. The delivering party shall have the
time period set forth in the Milestone Schedule for the applicable Milestone
Delivery (the Fix Period) to cure the problem and to redeliver the failed
Milestone Delivery to the receiving party (a Redelivery). After receipt by the
receiving party of the Redelivery, the receiving party shall have a new Test
Period (of the same duration as the initial Test Period for such Deliverable
unless a different period of time is specified in the Milestone Schedule) to
re-examine and test the Milestone Delivery. If a Milestone Delivery is late or
if the Redelivery of a Milestone Delivery is Materially Nonconforming, the
receiving party may terminate this Agreement pursuant to Section 8.2. Material
Nonconformity or Materially Nonconforming means as to any Milestone Delivery,
Redelivery or the Integration, errors or other failure(s) to meet the applicable
Milestone Requirements that (i) are not cured within the applicable cure period
or Fix Period and (ii) in either party's (each as a receiving party) reasonable
judgment, individually or in the aggregate, materially and adversely affect the
receiving party's ability to perform the business functions that are represented
by or are within the scope of the applicable Milestone Delivery or the
Integration.
(b) The absence of notification by a receiving party within the Test
Period that one or more Milestone Requirements have not been met will not
indicate acceptance of all or any part of any Milestone Delivery, it being
understood that each party (as a receiving party) retains the right to reject
the Milestone Delivery unless, upon completion of testing of the final Milestone
Delivery, all functional and performance specifications set forth in the
Milestone Schedule have been met (Final Acceptance).
(c) It is understood and agreed that a Milestone Delivery or Redelivery
need not be error-free to have achieved any particular Milestone Requirement,
but a receiving party may rightfully reject any Milestone Delivery or Redelivery
that is Materially Nonconforming. Notwithstanding the foregoing, Final
Acceptance will not relieve the delivering party of its obligation to correct
nonconformities in accordance with this Section 2.55. Acceptance of the
Integration will not relieve either party (each as a delivering party) of its
obligation to use reasonable commercial efforts to correct all identified
nonconformities in a timely fashion.
2.6 Implementation. (a) Within [NUMBER (#)] days following acceptance of the
Integration, each party shall implement the Integration (or the relevant
components of the Integration, as the case may be) at such party's Site using
the procedure specified in the documentation for the Integration. The schedule
for the implementation and launch of the PEx Service on the Impresse Site and
the Impresse Services on the PEx Site is set forth in Attachment A.
(b) Implementation will result in the establishment of a series of
[graphic and textual] links on Impresse's Site (each, a Impresse Link), which
will establish a direct hyperlink connection from entries in Impresse's Site to
PEx's Site. PEx shall activate on the PEx Site a series of reverse links to the
Impresse Site (each, a PEx Link and together with the Impresse Link, the Links),
to allow Impresse customers who connect to the PEx Site through a Link to return
to the Impresse Site. The Links shall be rendered in the form specified in
Attachment C.
(c) PEx shall be solely responsible for the operation and maintenance of
the PEx website and for all materials that appear on the PEx Site, except for
the Impresse Content (if any). PEx will provide, install, repair, maintain and
pay for the communications, computer and peripheral equipment, services and
facilities supporting the PEx Site. Impresse will provide, install, repair,
maintain and pay for the communications, computer and peripheral equipment,
services and facilities necessary to deliver the Impresse Content to the PEx
website. Impresse shall be solely responsible for the operation and maintenance
of the Impresse Site and for all materials that appear on the Impresse Site,
except for the PEx Content. Impresse will provide, install, repair, maintain and
pay for the communications, computer and peripheral equipment, services and
facilities supporting the Impresse website. PEx will provide, install, repair,
maintain and pay for the communications, computer and peripheral equipment,
services and facilities necessary to deliver the PEx Content to the Impresse
website.
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2.7 Maintenance. (a) PEx will transmit to Impresse, in accordance with the
specifications set forth on Attachment C and the schedule set forth on
Attachment C, the PEx Content. Impresse will transmit to PEx, in accordance with
the specifications set forth on Attachment C and the schedule set forth on
Attachment C, the Impresse Content. Thereafter, each party will transmit to the
other updates of the Content provided to the other party in accordance with the
specifications and schedule set forth on Attachment C.
(b) Within 24 hours of receiving notice from PEx of errors or inaccuracies
in the PEx Content, PEx will investigate and use reasonable efforts to correct
such errors and inaccuracies using its personnel or, for Content supplied by
third parties, by referring such matter to the third party responsible for such
portion of the PEx Content. PEx's personnel will be available from Monday to
Friday from 9 AM-8 PM E.S.T., to provide technical assistance to Impresse and
the Impresse Customers concerning PEx Content.
(c) Within 24 hours of receiving notice from PEx of errors or inaccuracies
in the Impresse Content, Impresse will investigate and use reasonable efforts to
correct such errors and inaccuracies. Impresse's personnel will be available
from Monday to Friday from 9 AM to 8 PM P.S.T., to provide technical assistance
to PEx.
(d) Each party covenants that it will (i) cooperate with the other party
in order to establish and maintain the Links; and (ii) display on its Site only
those Links and branded images of the other party that are provided by the other
party, and will substitute any new reasonable images provided by other party
from time to time.
(e) Each party will be solely responsible for the development, operation
and maintenance of its Site and for all materials that appear on its Site. Such
responsibilities include, but are not limited to: (i) the technical operation of
its Site and all related equipment (including the installation, repair,
maintenance of all communications, computer and peripheral equipment, services
and facilities as may be necessary to host, maintain and provide access to such
Site and the other party's Site); (ii) the accuracy and appropriateness of
materials posted on its Site; (iii) ensuring that materials posted on its Site
do not violate any law, rule or regulation, or infringe upon the rights of any
third party (including, for example, copyright, trademarks, privacy or other
personal or proprietary rights); and (iv) ensuring that materials posted on its
Site are not libelous or otherwise illegal. Except as otherwise specified in
Sections 6.2 and 7.2, each party disclaims all liability for all such matters
with respect to the other party's Site.
2.8 Alliance Managers. Each party will designate an individual (Alliance
Manager) for the Alliance who will have the authority to represent such party in
all matters concerning such Alliance and will be responsible for coordinating
such party's responsibilities for such Alliance, including requesting and
approving changes. All Alliance-related communications that concern performance
shall be addressed to the designated Alliance Manager. If either party replaces
its Alliance Manager, that party shall promptly notify the other party of such
replacement.
3. MARKETING ARRANGEMENT.
3.1 Appointment. (a) Subject to the terms of this Agreement, PEx hereby appoints
Impresse as a provider of commercial print procurement and production management
services including project specification, quoting, proofing, production
management, reporting and billing to customers in the printing and publishing
market, including book publishers, commercial printers, in-plant printing
facilities and quick publishers for PEx customers that purchase or exchange
goods on PEx's website (Impresse Services). Impresse hereby accepts the
appointment as a provider.
(b) Subject to the terms of this Agreement, Impresse hereby appoints PEx
as a provider of electronic exchange services (including auction and reverse
auction services) for the purchase, sale or exchange of pulp, paper and paper
packaging products (PEx Services). PEx hereby accepts the appointment as a
provider.
(c) Subject to the terms set forth in this Agreement, PEx will also
provide Impresse with the opportunity to participate in joint marketing
activities and client proposal opportunities for customers in the pulp, paper
and printing industries, as PEx deems appropriate. Subject to the terms set
forth in this Agreement, Impresse will also provide PEx with the opportunity to
participate in joint marketing activities and client proposal opportunities for
customers in the paper and printing industries, as Impresse deems appropriate.
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(d) Neither party shall have the right to make commitments of any kind for
or on behalf of the other party without the prior written consent of the other
party, in each and every case.
3.2 Marketing Efforts. (a) Subject to the provisions of this Agreement, PEx and
Impresse will jointly work together to create a mutual understanding of
opportunities which are of priority interest and assist each party in focusing
their marketing efforts. The parties shall also work to identify target
customers and develop proposals for potential customers to propose a solution
encompassing Impresse Services and PEx Services.
(b) PEx, in its reasonable business discretion, may include appropriate
individuals from Impresse in PEx sales calls to printers, publishers, and other
PEx customers.
(c) PEx will promote Impresse's print purchasing and production
management services to other business-to-business e-commerce sites that are
seeking print purchasing and production management services; and will promote
Impresse as a premier partner.
(d) PEx will use reasonable efforts to help Impresse expand into other
printing and paper segments in which it currently does not operate (e.g.,
consumer packaging and containerboard packaging).
(e) Impresse will promote PEx's electronic exchange services to its
customers who produce, buy, trade or distribute paper products. PEx will be
listed first and be the primary option in allowing for paper procurement within
the areas of the Impresse Site relating to Impresse's paper procurement
services.
(f) PEx will develop and provide, with input from Impresse, marketing
material to demonstrate how paper, printing, and related customers
of Impresse can benefit from this alliance. The parties will each
pay ***** of the costs of the preparation of such marketing
materials. PEx will grant Impresse a royalty-free license to use
this material in conjunction with the transactions contemplated by
this Agreement.
(g) PEx will promote Impresse as a premier partner, by displaying logos,
links and promotional information in locations on its site similar
to other premier partners. PEx will also provide to Impresse
complementary banner advertisements for the term of this alliance.
3.3 Resources. (a) Each party shall furnish the other party at no cost
reasonable quantities of promotional materials, such as sales literature and
procedures manuals (the Services Information) in order for the other party to
promote the Impresse Services or the PEx Services, as the case may be, as
provided for in this Agreement. Except as otherwise agreed by the parties, each
party may use such Services Information without any limitation on disclosure. In
any event, each party hereby grants the other party permission to disclose
certain of the Services Information to be designated and furnished by such party
to customers without the requirement for non-disclosure agreements. Each party
represents and warrants that the Services Information as provided by it to the
other party shall be accurate in all material respects when provided, and each
party undertakes to update such of its Services Information when necessary.
(b) Impresse shall devote commercially reasonable efforts to support PEx's
promotion and sales efforts, including the following general activities: (i)
answering technical questions and providing PEx with proposal assistance and
tutorial assistance relating to the Impresse Services; (ii) supplying experts to
support detailed technical presentations and meetings relating to the Impresse
Services; (iii) providing quotations for standard and custom configurations for
the Impresse Services; and (iv) responding to phone calls from prospective
customers.
4. REVENUE ALLOCATIONS
4.1 Revenue Sharing. PEx will pay Impresse a commission equal to ***** percent
***** of PEx's Net Revenue in respect of sales of products and services to
Impresse-sourced Customers on the PEx Site. Net Revenue means fees received by
PEx from the sale of PEx Services to Impresse-sourced Customers less charges in
respect of (i) outbound shipping, packaging, credit clearing, insurance and
delivery, separately billed to the Impresse-sourced Customers or prepaid; (ii)
taxes, duties, and similar governmental charges (not including PEx's net income
tax); (iii) rebates, discounts and refunds remitted to the Impresse-sourced
Customers; and (iv) returns by the Impresse-sourced
* Confidential Treatment Requested: material has been omitted and filed
separately with the Commission.
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Customers. Impresse-sourced Customers means customers that procure paper from
the PEx Site through the Impresse Site and excludes those arriving through
general links or banner advertisements.
4.2 Payment. PEx shall make payments required under Section 4.1 not later than
[(thirty (30)] days following each March 31, June 30, September 30 and December
31 commencing on March 31, 2000 for periods in which payments are due under
Section 4.1. All payments shall be stated and paid in U.S. Dollars. Revenue
received in currencies other than U.S. Dollars, shall be converted to U.S.
Dollars using the exchange rate in effect as of the date that the payment is
received by PEx. All payments will be reduced by any applicable withholding
taxes. PEx and Impresse will cooperate to minimize, to the extent legally
permissible, the tax liabilities related to the transactions contemplated by
this Agreement; provided such cooperation shall not cause any adverse tax
consequences to be incurred by either party which would not have been incurred
under the terms and conditions as described in this Agreement. Each party shall
provide and make available to the other party any resale certificates,
information regarding out-of-state or out-of-country sales, and other exemption
certificates or information reasonably requested by the other party.
4.3 Taxes. All payments required by this Agreement are exclusive of federal,
state, local and foreign taxes, duties, tariffs, levies and similar assessments.
When applicable, such taxes shall appear as separate items on a party's invoice
or statement to the other party. Payment of such taxes or charges shall be the
responsibility of the party whose obligation it is under this Agreement to make
the payment in respect of which such taxes or charges are assessed, excluding
any taxes based upon the other party's net income or property. In lieu thereof,
a party shall provide to the other party a tax or other levy exemption
certificate acceptable to the taxing or other levying authority.
4.4 Statements. During the term of this Agreement and for a period of at least
two (2) years following any termination or expiration, PEx shall maintain
records sufficient to determine the number of Impresse-sourced Customers using
the PEx Services at the PEx Site, Net Revenue and payments due Impresse under
Section 4.1. Within forty-five (45) days following the last day of each month in
which payments are due under Section 4.1, PEx shall provide Impresse with a
report showing Net Revenue received for the most recently ended three-month
period. Such reports shall be submitted to Impresse whether or not any Net
Revenue has been received during the period. Such reports shall include at
least: (a) the number of Impresse-sourced Customers that access the PEx Services
via the Impresse Site; (b) the quantities of PEx Services sold to such
Impresse-sourced Customers on PEx's Site (or any successor site or affiliated
Site), (c) the xxxxxxxx thereon that comprise Net Revenue; (d) the calculation
of commissions thereon; and (e) the total commissions so computed and due
Impresse.
4.5 Audits. At its expense, Impresse shall have the right, not more than once in
any twelve (12) month period, to have PEx's applicable books and records audited
by an independent accountant to ascertain the accuracy of PEx statements and
payments under this Agreement; provided, that such audits shall include no more
than the current calendar year and the immediately preceding two (2) full
calendar years. Audits shall be scheduled within thirty (30) days of written
notice by Impresse to PEx, and conducted during PEx's normal business hours, in
a manner that does not unreasonably interfere with PEx's normal business
activities. If an audit discloses any underpayment by PEx, then PEx shall pay
such amount to Impresse within thirty (30) days after conclusion of the audit.
In the event that any audit discloses that the amount paid by PEx to Impresse
with respect to the audited period was less than ninety-five percent (95%) of
the amount due then PEx shall also promptly reimburse Impresse for the cost of
such audit.
5. PUBLICITY; CONFIDENTIALITY; PROPRIETARY RIGHTS; LICENSES
5.1 Publicity. (a) Except as is necessary to comply with applicable laws and
regulations or to enforce their respective rights under this Agreement, or to a
party's legal or financial advisors, and except as otherwise agreed to by the
parties in writing, the parties shall: (i) keep the material terms of this
Agreement confidential, (ii) agree upon the text and the exact timing of an
initial public announcement relating to the transactions contemplated by this
Agreement as soon as possible after the Effective Date (such agreement not to be
unreasonably withheld or delayed) and (iii) agree on the text and the timing of
any subsequent public announcements or advertising regarding this Agreement or
the transactions contemplated herein. If this Agreement is required to be filed
by either party with the Securities and Exchange Commission, such party shall
not file this Agreement with the Securities and Exchange
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Commission without first notifying the other party and seeking confidential
treatment for any provisions of this Agreement that the other party believes
would disclose trade secrets, confidential commercial or financial information
that would impair the value of the contractual rights represented by this
Agreement or provide detailed commercial and financial information to
competitors or third parties.
(b) Except as otherwise provided in Section 5.5, neither party shall use
the name of the other party or any director, officer or employee of the other
party or any adaptation thereof without the prior written approval of the other
party; provided that subject to approval of the text of any promotional
material(s) or disclosures: (i) Impresse shall have the right to promote PEx as
a preferred provider of internet exchange services for pulp, paper and paper
packaging products and its relationship with PEx as a provider of paper
procurement and production management services as set forth in this Agreement in
its marketing collateral and in customer presentations and (ii) PEx shall have
the right to promote Impresse as its preferred provider of print procurement and
production management services for PEx customers in its marketing collateral and
in customer presentations.
(c) The parties shall engage in at least one joint presentation or
demonstration of the Integration and their alliance at a suitable industry event
or trade conference selected by mutual agreement of the parties and scheduled
within twelve (12) months following the Effective Date.
5.2 Confidentiality. (a) It is contemplated that in the course of the
performance of this Agreement each party may, from time to time, disclose
Confidential Information to the other. Each party agrees to take all
reasonable steps to prevent disclosure of Confidential Information and not to
use any Confidential Information except for the limited purposes set forth in
this Agreement.
(b) All Confidential Information made available hereunder, including
copies thereof, shall be returned or destroyed upon the first to occur of (i)
termination of this Agreement or (ii) written request by the discloser.
(c) This Agreement supercedes the terms of the mutual Non-Disclosure
Agreement (NDA) executed by the parties as of November 16, 1999 with respect to
the treatment of Confidential Information received at any time on or after the
Effective Date.
5.3 Proprietary Rights. (a) This Agreement does not convey to PEx any ownership
rights in any Impresse Content, the portions of the Integration created by
Impresse or the Impresse Services or in any intellectual property rights
embodied in such Impresse Content, portions of the Integration created by
Impresse or Impresse Services by implication, estoppel or otherwise except for
the rights expressly granted under this Agreement. Title to the Impresse
Content, portions of the Integration created by Impresse and Impresse Services
and the intellectual property rights embodied in the Impresse Content, portions
of the Integration created by Impresse and Impresse Services shall at all times
remain vested in Impresse or its licensors; provided, that with respect to the
portions of the Integration for which Impresse retains title, Impresse hereby
grants and agrees to grant PEx a non-exclusive, perpetual, fully paid-up and
royalty-free license to use such portions of the Integration and intellectual
property to the extent necessary for PEx to make use of, market and distribute
the PEx Services alone or in combination with other technology and information
as part of PEx's business during the term of this Agreement.
(b) This Agreement does not convey to Impresse any ownership rights in any
PEx Content, the portions of the Integration created by PEx or the PEx Services
or in any intellectual property rights embodied in such PEx Content, portions of
the Integration created by PEx or PEx Services by implication, estoppel or
otherwise except for the rights expressly granted under this Agreement. Title to
the PEx Content, the portions of the Integration created by PEx and PEx Services
shall at all times remain vested in PEx or its licensors; provided, that with
respect to the portions of the Integration for which PEx retains title, PEx
hereby grants and agrees to grant Impresse a nonexclusive, perpetual, fully
paid-up and royalty-free license to use such portions of the Integration and
intellectual property to the extent necessary for Impresse to make use of,
market and distribute the Impresse Services alone or in combination with other
technology and information as part of Impresse's business during the term of
this Agreement.
5.4 Enabling Licenses. (a) Each party hereby grants to the other party a
worldwide, paid-up and royalty-free license to (i) market, use, reproduce and
display the portion of the Integration (if any) owned by such party to
8
potential customers and personnel and (ii) use the Integration to develop
enhancements, modifications, and derivative works of the Integration for the
purpose of (1) training personnel; and (2) providing PEx Services to PEx
customers or Impresse Services to Impresse Customers, as the case may be.
(b) PEx hereby grants to Impresse a non-exclusive, non-transferable
license to use, reproduce, display and transmit the PEx Content, solely in
connection with the development, maintenance and operation of the Impresse Site,
subject to and in accordance with the terms, conditions and provisions of this
Agreement. Impresse shall not remove any titles or any trademark, copyright or
patent notices, or any proprietary or restricted rights notices that appear on
the PEx Content.
(c) The parties shall confer regarding any updates, upgrades or new
releases they propose to make to the Integration in order to maintain
compatibility with their respective software and systems and neither party shall
implement any such update, upgrade or new release without simultaneously
implementing any revisions required with respect to the Integration. Each party
will provide the other party at no charge any such updates, upgrades or new
releases it makes to the Integration not later than thirty (30) days after it
initially implements such updates, upgrades and new releases.
5.5 Trademark License. (a) Subject to Impresse's compliance with this Section
5.5, PEx hereby grants to Impresse a fully paid up and royalty-free right and
license to use the PEx Trademarks in connection with the use of the PEx
Services during the term of this Agreement. Subject to PEx's compliance with
this Section 5.5, Impresse hereby grants to PEx a fully paid up and
royalty-free right and license to use the Impresse Trademarks in connection
with the delivery of the PEx Services during the term of this Agreement. All
right, title and interest to the Trademarks shall remain with PEx or
Impresse, as the case may be, and no other license relating thereto is
granted hereunder.
(b) Upon any expiration or termination of this Agreement, the license to
each party to use the Trademarks of the other party shall terminate, and each
party shall take all necessary action and execute and deliver to the other party
all necessary documents and instruments to remove such licensee party as a
registered user or recorded licensee of the other party's Trademarks.
(c) Each party will use reasonable efforts to notify the other in writing
promptly after obtaining knowledge of any infringements or imitations of the
other party's Trademarks by third parties.
(d) Each party reserves the right to modify its' Trademarks or substitute
alternative marks for any or all of its' Trademarks at any time upon thirty (30)
days written notice; provided, that the other party shall not be required to
incur any expense to re-xxxx or otherwise modify sales collateral to adopt such
modified, substituted or alternative marks but shall implement such marks in a
commercially reasonable manner consistent with the depletion of then existing
inventory and sales collateral.
(e) Upon request, each party shall provide the other party with a sample
of all advertising of such party that makes use of the other party's Trademarks
for purposes of permitting the other party to verify that such use of the other
party's Trademarks is consistent with the provisions of Attachment C, but the
other party's rights shall only extend to the depiction of the other party's
Trademarks in such advertising copy and not to any other content of such copy.
Neither party shall challenge, directly or indirectly, the other party's rights
in respect of such other party's Trademarks, provided, that neither party shall
waive its rights with respect to existing trademarks owned by such party. Each
party shall comply with the applicable Trademark guidelines set forth in
Attachment C.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Authorization; Enforceability. Each of Impresse and PEx represent and
warrant to the other that: (a) it is a corporation or limited liability company
duly organized, validly existing and in good standing under the laws of its
organizing jurisdiction; (b) it has all requisite power and authority to enter
into this Agreement; (c) it is duly authorized to execute and deliver this
Agreement and to perform its obligations hereunder and consummate the
transactions contemplated hereby; and (d) this Agreement is a valid and binding
obligation of such party enforceable in accordance with its terms.
9
6.2 Content; Integration Warranties. (a) Impresse represents and warrants to PEx
that it owns or has valid licenses to all copyrights, patents, trade secrets,
trademarks, and other proprietary or intellectual property rights relating to
the Impresse Content and has the right to grant to PEx the rights and licenses
purported to be granted by or pursuant to this Agreement, and has all other
rights necessary for the performance of its obligations under this Agreement.
PEx represents and warrants to Impresse that it owns or has valid licenses to
all copyrights, patents, trade secrets, trademarks, and other proprietary or
intellectual property rights relating to the PEx Content and has the right to
grant to Impresse the rights and licenses purported to be granted by or pursuant
to this Agreement, and has all other rights necessary for the performance of its
obligations under this Agreement.
(b) Each party represents and warrants that it owns or has valid licenses
to all copyrights, patents, trade secrets and other proprietary or intellectual
property rights relating to the portion of the Integration that it creates; and
has the right to grant to the other party the rights and licenses purported to
be granted by or pursuant to this Agreement with respect to the use of such
portion of the Integration.
(c) Each party represents and warrants that no software included in the
portion of the Integration created by such party shall contain any authorization
strings, time limiting codes or other instructions or codes that (i) prevent the
Impresse Services or the PEx Services from being fully functional at all times
or (ii) may be used to obtain access to the Impresse Services or the PEx
Services without PEx's or Impresse's, as the case may be, knowledge and
authorization.
6.3 Customer Warranties. (a) Impresse shall extend to each Customer that enters
into an agreement to acquire Impresse Services pursuant to this Agreement the
warranties and indemnification for its Impresse Services and services that it
generally extends to its customers. Impresse will provide each Customer that
enters into an agreement to acquire Impresse Services pursuant to this Agreement
support services that are at least as favorable as the support services Impresse
generally extends to its customers.
(b) It is understood and agreed that, as between the parties, Impresse
shall remain solely responsible to customers for the performance of the Impresse
Services and PEx shall remain solely responsible to customers for the
performance of the PEx Services.
7. RISK ALLOCATION
7.1 Limitation of Liability. EXCEPT FOR INFRINGEMENT OF THE OTHER PARTY'S
INTELLECTUAL PROPERTY RIGHTS OR BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER
SECTION 5.2 AND EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 7.2-7.3 WITH RESPECT
TO THIRD PARTY CLAIMS, THE AGGREGATE LIABILITY OF EITHER PARTY FOR DIRECT
DAMAGES ARISING OUT OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY
SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID TO EACH PARTY BY THE OTHER PARTY
AS OF THE DATE SUCH CLAIM IS FINALLY RESOLVED. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR LOST PROFITS OR SAVINGS OR FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER CAUSED,
UNDER ANY THEORY OF LIABILITY.
7.2 Infringement Indemnification. (a) Subject to the provisions of Section 7.4,
each party shall defend, indemnify and hold harmless the other party, its
subsidiaries, parent corporations, Affiliates, officers, directors, independent
contractors, partners, shareholders, employees, agents, successors and assigns
from and against any claim, suit, demand, loss, damage, expense (including
reasonable attorney's fees of indemnitee(s) and those that may be asserted by a
third party) or liability (collectively, Losses) arising from or related to an
allegation that the Impresse Content, Integration or PEx Content or PEx
Services, as the case may be, provided by such party to the other party or a
Customer pursuant to this Agreement infringe or misappropriate any intellectual
property right of any third party.
(b) In addition to its obligations under Section 7.2(a), if any Impresse
Content, Integration, PEx Content or PEx Services is held to constitute an
infringement or misappropriation of any third party's intellectual property
rights or if in the providing party's opinion, any Impresse Content,
Integration, PEx Content or PEx Services is, or is likely to
10
be held to constitute, an infringement or misappropriation, such party will at
its expense and option: (i) procure the right for the other party to continue
using the Impresse Content, Integration or PEx Content or PEx Services; (ii)
replace the Impresse Content, Integration or PEx Content or PEx Services with a
non-infringing and non-misappropriating equivalent conforming to the applicable
specifications; or (iii) modify the Impresse Content, Integration, PEx Content
or PEx Services to make it non-infringing and non-misappropriating while
conforming to the applicable specifications.
7.3 Other Claims. Subject to the provisions of Section 7.4, each of Impresse and
PEx (each, an Indemnifying Party) will defend, indemnify and hold harmless the
other party, its subsidiaries, parent corporations, affiliates, officers,
directors, partners, shareholders, employees, agents, and their successors and
assigns (collectively, the Indemnitees) from and against any Losses imposed upon
the Indemnitee(s) by any third party arising from or related to (a) personal
injury or property damage which is proximately caused by any negligence or
intentional misconduct by such Indemnifying Party (or its employees, agents or
representatives) in performing its obligations under this Agreement; (b) any
breach by the Indemnifying Party of the representations, warranties or
agreements made by it under this Agreement; or (c) the promotion, advertisement
or marketing of the Indemnitee's Content or Services by or on behalf of the
Indemnifying Party. The foregoing indemnification action shall not apply in the
event and to the extent that a court of competent jurisdiction determines that
such Losses arose as a result of any Indemnitee's negligence, intentional
misconduct or breach of this Agreement.
7.4 Procedure. To receive the benefit of indemnification under Section 7.2 or
7.3, the party seeking indemnification must promptly notify the other party in
writing of a claim or suit and provide reasonable cooperation (at the
Indemnifying Party's expense) and tender to the Indemnifying Party (and its
insurer) full authority to defend or settle the claim or suit. Neither party has
any obligation to indemnify the other party in connection with any settlement
made without the Indemnifying Party's written consent. The Indemnitee has the
right to participate at its own expense in the claim or suit and in selecting
counsel therefor. The Indemnitee shall cooperate with Indemnifying Party (and
its insurer), as reasonably requested, at Indemnifying Party's sole cost and
expense.
7.5 Insurance. Each party shall procure and maintain insurance or self-insurance
adequate to cover its obligations hereunder and which are consistent with normal
business practices of prudent companies similarly situated. It is understood
that such insurance shall not be construed to create a limit of either party's
liability with respect to its indemnification obligations under this Section 8.
Each party shall provide the other with written evidence of such insurance (or
financial information that describes the amounts available under any
self-insurance facility) upon request. Each party shall provide the other with
written notice at least fifteen (15) days prior to the cancellation, non-renewal
or material change in such insurance or self-insurance which materially
adversely affects the rights of the other party hereunder. If such party does
not obtain replacement insurance or take other measures that allow it to provide
comparable coverage within such 15-day period, the other party shall have the
right to terminate this Agreement effective at the end of such fifteen (15) day
period without notice or any additional waiting periods.
8. TERM AND TERMINATION.
8.1 Term. This Agreement shall take effect as the Effective Date and shall
remain in effect until the eighteen month anniversary of the Effective Date,
unless sooner terminated in accordance with Section 8.2 or extended in
accordance with this Section 8.1. Thereafter, this Agreement shall automatically
renew for successive 12-month terms unless either party notifies the other party
at least thirty (30) days prior to the expiration of the then current term that
it does not wish to renew this Agreement for an additional term.
8.2 Termination. Either party may terminate this Agreement at any time upon
thirty (30) days notice to the other party in the event that the other party
shall have breached any of its material obligations hereunder and shall not have
cured such default prior to the expiration of the thirty (30)-day period. In
addition, either party shall have the right to terminate this Agreement upon
thirty (30) days notice if a Force Majeure condition has prevented performance
by the other party for more than one hundred twenty (120) days. The parties may
also terminate this Agreement at any time upon mutual written agreement of the
parties.
11
8.3 Effect of Termination. (a) Upon termination (including expiration) of this
Agreement:
(i) Impresse and PEx will terminate all tasks for all effected Customers
in an orderly manner, as soon as practical or in accordance with a
schedule agreed to by PEx and Impresse to minimize disruption to
customers;
(ii) each party shall return to the other party or certify in writing to
the other party that it has destroyed all documents and other tangible
items it or its employees or agents have received or created pertaining,
referring or relating to the Confidential Information of the other party;
(iii) each party shall discontinue making any representation regarding its
status as a "Preferred Provider" for the other party and shall cease
conducting any activities with respect to the joint marketing, promotion,
sale or distribution of the PEx Services and Impresse Services;
(iv) Each party will discontinue any and all use of trade names and/or
trademarks authorized for use under this Agreement, except as necessary to
fulfill its obligations to customers in accordance with this Section 8.3;
(v) Each party will discontinue any and all use of the licenses granted
under Section 5, except as necessary to fulfill its obligations to
customers in accordance with this Section 8.3; and
(vi) each party will return to the other party or certify in writing to
the other party that it has destroyed all documents and other tangible
items it or its employees or agents have received or created pursuant to
this Agreement pertaining, referring or relating to the Confidential
Information of the other party, except that each party may retain one (1)
complete copy of Confidential Information (1) for use in accordance with
Sections 8.3(a)(i) and 8.3(v) and (2) for archival purposes to assure
compliance with this Agreement.
(b) Termination of this Agreement by either party for any reason shall not
affect the rights and obligations of the parties that accrued prior to the
effective date of termination of this Agreement or release either party from
obligations to resell or license Impresse Services made prior to the date of
termination, or affect existing licenses or purchase orders for the Impresse
Services. Notwithstanding any provision of this Agreement to the contrary, each
party may continue to exercise the rights and licenses granted hereunder to the
extent necessary to allow such party to fulfill its obligations under existing
engagement agreements or included in any proposal to a Customer that was
outstanding at the time of termination. Each party specifically:
(i) may continue to market and use the other party's Services for as long
as necessary to meet any obligations or services that the first party has
undertaken with respect to customers as of the date of termination;
(ii) shall continue to have the right to use and access the other party's
Content and Integration (including all documentation and related technical
information and support) to fulfill its obligations to customers for a
period of not more than ninety (90) days following the date of
termination.
(c) The provisions of Sections 4.5, 5.1-5.5, 6, 7, 8 and 9 shall survive
any expiration or termination of this Agreement (except that Sections 5.4-5.5
shall subsequently terminate in accordance with the provisions of Section
8.3(a)-(b)). Neither party shall be entitled to damages resulting from the
termination of this Agreement in accordance with this Section 8. Subject to the
provisions of Section 5, in no event shall either party be precluded from
developing for itself, or acquiring from third party(ies), materials and
services that are competitive with the materials and services provided by the
other party upon any expiration or termination of this Agreement.
9. GENERAL PROVISIONS.
9.1 Issue Resolution. In the event that any dispute arises relating to this
Agreement, the Representatives shall promptly meet and attempt to resolve the
dispute through good faith discussions. If the Representatives are unable to
resolve any dispute to their mutual satisfaction within thirty (30) days after
they commence discussions regarding
12
such dispute, and do not agree to extend the time for resolution of the issue at
the end of their meeting, then they may by mutual agreement: (a) escalate the
matter to higher levels in their organizations and, (b) if necessary, resort to
a mutually agreed alternative dispute resolution technique prior to resorting to
litigation. In the event that the parties resort to alternative dispute
resolution or litigation to resolve any matter, the successful or prevailing
party shall be entitled to recover its reasonable attorneys' fees and other
costs incurred in connection with such action, suit or proceeding, in addition
to any other relief to which such party may be entitled.
9.2 Governing Law. This Agreement shall be governed and construed in accordance
with the substantive laws of the Commonwealth of Massachusetts without regard
for any choice or conflict of laws rule or principle that would result in the
application of the substantive law of any other jurisdiction.
9.4 Amendment and Waiver. No provision of or right under this Agreement shall be
deemed to have been waived by any act or acquiescence on the part of either
party, its agents or employees, but only by an instrument in writing signed by
an authorized officer of each party. No waiver by either party of any breach of
this Agreement by the other party shall be effective as to any other breach,
whether of the same or any other term or condition and whether occurring before
or after the date of such waiver.
9.5 Independent Contractors. Each party represents that it is acting on its own
behalf as an independent contractor and is not acting as an agent for or on
behalf of any third party. This Agreement and the relations hereby established
by and between Impresse and PEx do not constitute a partnership, joint venture,
franchise, agency or contract of employment. Neither party is granted, and
neither party shall exercise, the right or authority to assume or create any
obligation or responsibility on behalf of or in the name of the other party or
its Affiliates.
9.6 Assignment. Neither party may assign its rights or obligations hereunder
without the prior written consent of the other party, which consent shall not be
unreasonably withheld; provided that the proposed assignee under this Section
9.6 agrees in writing to assume all of the obligations of the assignor party
under this Agreement.
9.7 Successors and Assigns. This Agreement shall bind and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
9.8 Notices. Unless otherwise provided herein, any notice, report, payment or
document to be given by one party to the other shall be in writing and shall be
deemed given when delivered personally or mailed by certified or registered
mail, postage prepaid (such mailed notice to be effective on the date which is
three (3) business days after the date of mailing), or sent by nationally
recognized overnight courier (such notice sent by courier to be effective one
business day after it is deposited with such courier), or sent by telefax (such
notice sent by telefax to be effective when sent, if confirmed by certified or
registered mail or overnight courier as aforesaid):
If to PEx:
XxxxxXxxxxxxx.xxx, LLC
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Chief Executive Officer
Phone: 000.000.0000
Fax: 000.000.0000
If to Impresse:
Impresse Corporation
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Executive Officer
Phone: 000.000.0000
Fax: 000.000.0000
or to such other place as any party may designate as to itself by written notice
to the other party.
13
9.9 Severability. In the event any provision of this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other term or
provision hereof. The parties agree that they will negotiate in good faith or
will permit a court or arbitrator to replace any provision hereof so held
invalid, illegal or unenforceable with a valid provision which is as similar as
possible in substance to the invalid, illegal or unenforceable provision.
9.10 Conflict or Inconsistency. In the event of any conflict or inconsistency
between the terms and conditions hereof and any terms or conditions set forth in
any purchase order or other document relating to the transactions contemplated
by this Agreement, the terms and conditions set forth in this Agreement shall
prevail.
9.11 Captions. Captions of the sections and subsections of this Agreement are
for reference purposes only and do not constitute terms or conditions of this
Agreement and shall not limit or affect the meaning or construction of the terms
and conditions hereof.
9.12 Word Meanings. Words such as herein, hereinafter, hereof and hereunder
refer to this Agreement as a whole and not merely to a section or paragraph in
which such words appear, unless the context otherwise requires. The singular
shall include the plural, and each masculine, feminine and neuter reference
shall include and refer also to the others, unless the context otherwise
requires.
9.13 Entire Agreement. The terms and provisions contained in this Agreement
(including the Attachments) constitute the entire understanding of the parties
with respect to the transactions and matters contemplated hereby and supersede
all previous communications, representations, agreements and understandings
relating to the subject matter hereof. No representations, inducements, promises
or agreements, whether oral or otherwise, between the parties not contained in
this Agreement or incorporated by reference in this Agreement shall be of any
force or effect. No agreement or understanding extending this Agreement or
varying its terms (including any inconsistent terms in any purchase order,
acknowledgment or similar form) shall be binding upon either party unless it is
in a writing specifically referring to this Agreement and signed by the duly
authorized representative of the applicable party.
9.14 Rules of Construction. The parties agree that they have participated
equally in the formation of this Agreement and that the language and terms of
this Agreement shall not be construed against either party by reason of the
extent to which such party or its professional advisors participated in the
preparation of this Agreement.
9.15 Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. In making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart. A facsimile
copy of this Agreement, including the signature pages hereto, shall be deemed an
original.
9.16 Force Majeure. Except as otherwise provided in this Agreement, in the event
that a delay or failure of a party to comply with any obligation, other than a
payment obligation, created by this Agreement is caused by a Force Majeure
condition, that obligation shall be suspended during the continuance of the
Force Majeure condition.
9.17 Further Assurances. Each party covenants and agrees that, subsequent to the
execution and delivery of this Agreement and without any additional
consideration, it will execute and deliver any further legal instruments and
perform any acts which are or may become reasonably necessary to effectuate the
purposes of this Agreement.
Both parties represent that they have read this Agreement, understand it, and
agree to be bound by the terms and conditions stated herein.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized officers, and have duly delivered and
executed this Agreement under seal as of the date first set forth above.
XXXXXXXXXXXXX.XXX, LLC IMPRESSE CORPORATION
By: /s/ Xxx X. Xxxxxxx By: /s/ Xxxxx E. Baitles
---------------------------- ----------------------------
Name: Xxx X. Xxxxxxx Name: Xxxxx E. Baitles
-------------------------- --------------------------
Title: VP Business Development Title: V.P. Market & Bus. Dev.
------------------------- -------------------------
Attachment A: Milestone Schedule: [to be supplied]
Attachment B: Final Specifications; Integration Software: [to be supplied]
Attachment C: Impresse Link Specifications; PEx Link Specifications; Trademarks
[attached]
15
Attachment A: Milestone Schedule:
[TO BE SUPPLIED]
Attachment B: Final Specifications; Integration Software:
[TO BE SUPPLIED]
Attachment C. Integration Final Specifications
*****
* Confidential Treatment Requested: material has been omitted and filed
separately with the Commission.
16
