MASTER ENGINEERING SERVICES AGREEMENT
This Master Engineering Services Agreement ("Agreement") is made and
entered into this 3rd day of February, 2004 (the "Effective Date") by and
between (i) CDEX, Inc., a Nevada corporation with its principal place of
business at 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 ("CDEX"),
and (ii) Systems 2000, Inc., an Nevada corporation with its principal place of
business at 00000 Xxxxx 00xx Xxxxx, Xxxxx 0, Xxxxxxxx, Xxxxxxx 00000
("Company"), who, intending to be legally bound, agree as follows:
1. INTRODUCTION
1.1. CDEX wishes to develop and market one or more products, each based on
its proprietary chemical detection technology, that require further development,
refinement and/or testing in preparation for manufacturing production, and
Company has the capacity to, and can provide design, prototyping and testing
services as well as a suite of related services for products of the type CDEX
wishes to bring to market.
1.2. The parties wish to enter into this Agreement to specify the terms
under which Company will provide such design, prototyping, testing services
and/or other complementary services for CDEX's prospective product(s), and under
which CDEX will pay for the services it engages Company to provide.
2. SERVICES
2.1. DESCRIPTION OF SERVICES. Company will provide to CDEX the services
more specifically described in one or more statements of work ("Statements of
Work") issued from time to time under this Agreement in accordance with the
procedure set forth in Section 2.2 below (the "Services"). The Services may
include, without limitation, the following types of services: (a) non-recurring
engineering services, including but not limited to product design, creation and
modification of bills of materials, engineering drawing packages, work
instructions, manufacturing specifications, fabrication documents and drawings,
and survey documents; (b) prototyping services, including but not limited to
development and testing of product prototypes; and (c) other related design and
manufacturing services tailored to meet CDEX's needs.
2.2. STATEMENTS OF WORK. CDEX may, from time to time, request Company to
provide Services to CDEX pursuant to this Agreement. To request Services, CDEX
will prepare and submit to Company a Statement of Work describing the scope of
the requested Services, the schedule requirements, the required deliverables,
applicable rates and other charges, whether such work will be performed on a
time and materials basis, fixed price basis, or some other basis, and such other
details as are reasonably required for Company to perform the requested
Services. Each Statement of Work shall become effective when executed by
authorized representatives of each party. Notwithstanding the preceding, the
parties hereby approve the initial Statement of Work set forth in EXHIBIT A-1.
Subsequent Statements of Work shall be included in this Agreement as Exhitits
X-0, X-0, etc.
2.3. GOVERNING TERMS. Once executed by both parties, each Statement of
Work shall become effective and shall be governed by the terms of this Agreement
and the terms in such Statement of Work. In the event of a conflict or ambiguity
between the terms of this Agreement and the terms of any Statement of Work, the
terms of the Statement of Work shall control, but only with respect to that
Statement of Work. CDEX shall have no obligation or liability to Company as a
result of any work performed by Company (i) prior to the effective date of a
Statement of Work, or (ii) outside the scope of work specified in the Statement
of Work, without CDEX's prior written approval.
2.4. ACCEPTANCE. All Services shall be subject to acceptance by CDEX,
based on its reasonable satisfaction and approval of such Services. In addition,
to the extent any Statement of Work provides for Company to prepare any
deliverables for CDEX ("Deliverables"), such Deliverables shall be subject to
the following acceptance procedures. During the initial phase of any such
Statement of Work, the parties will develop and mutually agree in writing upon
the acceptance tests and/or other acceptance criteria ("Acceptance Criteria")
that will be used to determine whether the Deliverables to be provided under
such Statement of Work are acceptable to CDEX. Company shall submit each
Deliverable to CDEX when it has been completed, along with written notification
to CDEX that such Deliverable is ready for acceptance testing. CDEX shall have a
reasonable time after receipt of such notice to inspect and test the Deliverable
to determine whether it meets the applicable Acceptance Criteria. Upon
completion of such inspection and testing, CDEX shall notify Company of any
defects in the Deliverable which have been identified. Company shall have a
reasonable period of time in light of the work scope thereafter to correct such
defects and to resubmit the corrected Deliverable to CDEX for further acceptance
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testing. In this regard, both parties understand and agree that the corrections
of the defects must be made expeditiously and not in the normal course of work
of the Company. The foregoing procedure shall be repeated as necessary until all
such defects have been corrected, at which point CDEX shall accept the
Deliverable in writing. Notwithstanding the preceding, if Company fails to
correct all defects in any Deliverable within two such correction cycles, CDEX
may terminate the affected Statement of Work for cause by written notice to
Company and pursue remedies available to it under law and equity.
2.5. CHANGE ORDERS. The parties acknowledge and agree that the services
required by CDEX may be subject to change at any time and from time to time.
CDEX may request changes to any Statement of Work prepared in accordance with
SECTION 2.2 in writing, and Company shall promptly advise CDEX of the time
within which the requested change can be implemented and any change in price
and/or the scheduled completion dates for the Services. Any such change must be
mutually agreed upon in writing by the parties before it shall become effective.
Company shall thereupon implement the mutually agreed upon changes to the
Statement of Work.
3. PAYMENTS
3.1. SERVICE CHARGES. In consideration for Company's performance of the
Services, CDEX shall pay to Company the amounts set forth in the applicable
Statement of Work, as follows: For work performed on a time and materials basis,
CDEX will pay Company for such work on a monthly basis, based on the terms set
forth in the applicable Statement of Work. For work performed on a fixed price
basis, upon Company's successful completion of each payment milestone set forth
in the applicable Statement of Work, CDEX shall be obligated to pay to Company
the associated milestone payment amount as set forth in such Statement of Work.
3.2. TAXES. All amounts payable in accordance with SECTIONS 3.1 are
exclusive of all federal, state, municipal or other governmental excise, sales,
value-added, and use taxes (but excluding any tax based on the net income of
Company) now in force or enacted in the future and, accordingly, the amount of
all payments hereunder is subject to an increase equal to the amount of any such
tax that Company may be required to collect or pay in connection with this
Agreement.
3.3. PAYMENT TERMS. Company shall invoice CDEX for all amounts due in
accordance with this SECTION 3, and CDEX shall remit all payments to Company
within thirty (30) days after the date of CDEX's acceptance of Company's
invoice, such acceptace to be based on Company meeting the invoicing
requirements set forth in this Agreement and the Statement of Work, such
acceptance which shall not be unreasonably withheld. In addition to information
routinely contained in Invoices, each Invoice must (1) allocate all costs to
milestones or work scope items/tasks, (2) provide the running financial status
against budget of each such milestone or work scope item/task, (3) include
reasonable supporting back up for all expenditures over $25.00 and (4) provide
detailed hourly time records broken down by milestone or work scope item for
individuals working on the project. At the start of each project, Company shall
contact CDEX to obtain its policies regarding invoicing, accounting support, and
acceptable expense costs (e.g., mileage). Absent written agreement otherwise,
Company shall comply with those policies.
4. INTELLECTUAL PROPERTY
4.1. DEFINITION. "Intellectual Property" shall mean (i) all patents,
copyrights, technology, business methods, techniques, know-how, processes, trade
secrets, inventions, proprietary data, formulae, computer software,
documentation, creative works of authorship, and research and development data,
(ii) all trademarks, trade names, service marks and service names, (iii) all
registrations, applications, recordings, licenses and common-law rights relating
thereto, all rights to xxx at law or in equity for any infringement or other
impairment thereto, including the right to receive all proceeds and damages
therefrom, and all rights to obtain renewals, continuations, divisions or other
extensions of legal protections pertaining thereto, and (iv) all other United
States, state and foreign intellectual property.
4.2. CDEX INTELLECTUAL PROPERTY. CDEX shall own all right, title and
interest in and to any of its pre-existing and independently developed
Intellectual Property ("CDEX Intellectual Property").
4.3. COMPANY INTELLECTUAL PROPERTY. Company shall own all right, title and
interest in and to any of its pre-existing and independently developed
Intellectual Property ("Company Intellectual Property").
4.4. DEVELOPED MATERIALS. CDEX shall own all right, title and interest in
and to any Intellectual Property developed by Company in connection with its
performance of this Agreement ("Developed Materials"), and all such Developed
Materials shall be deemed to be "works made for hire" under the U.S. Copyright
laws. To
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the extent that any such Developed Materials are not deemed to be "works made
for hire", then Company hereby assigns to CDEX all right, title and interest in
and to any such Developed Materials. Company hereby agrees to execute any
documents or instruments reasonably necessary to enable CDEX to secure or
perfect any proprietary rights that are assigned to CDEX hereby. CDEX hereby
grants to Company, during the term of each applicable Statement of Work, a
nonexclusive, non-transferable, paid up license in any CDEX Intellectual
Property and Developed Materials, in either case, to the extent necessary to
enable Company to perform its obligations under such Statement of Work.
4.5. INDEMNIFICATION BY COMPANY. Company shall indemnify and defend CDEX
against, and otherwise hold CDEX harmless from, any and all costs, liabilities,
damages, losses and expenses (including reasonable attorneys' fees) arising out
of any claim that any Developed Materials or any Company Intellectual Property,
or the use thereof, infringes any patent, copyright, trade secret or other
proprietary right of any third party.
4.6. INDEMNIFICATION BY CDEX. CDEX shall indemnify and defend Company
against, and otherwise hold Company harmless from, any and all costs,
liabilities, damages, losses and expenses (including reasonable attorneys' fees)
arising out of any claim that any CDEX Intellectual Property, or the use
thereof, infringes any patent, copyright, trade secret or other proprietary
right of any third party.
4.7. CONDITIONS TO INDEMNIFICATION. Each party's obligations under this
SECTION 4 are conditioned upon (a) receipt by the indemnifying party of prompt
written notification from the party claiming indemnification of any claim to
which this indemnification may apply (provided that failure to provide prompt
notification shall only excuse the indemnifying party to the extent it is
materially prejudiced thereby), and (b) cooperation by the indemnified party, at
the indemnifying party's request and expense, with efforts to defend or settle
the claim. The indemnifying party shall have sole control of the defense and
settlement efforts subject to the indemnified party's right to participate
therein at its own expense.
5. CONFIDENTIAL INFORMATION
That certain Non-Disclosure and Confidentiality Agreement between the
parties dated as of the Effective Date of this Agreement and contained herein as
Exhibit B (the "NDA") will govern any and all Confidential Information (as
defined therein) that are exchanged between the parties pursuant to this
Agreement, and such NDA shall be deemed to be an integral part of this
Agreement. It should be noted that upon execution of the NDA contained as
Exhibit B, all previous NDA's between the parties are terminated.
6. TERM AND TERMINATION
6.1. TERM. The term of this Agreement shall commence upon the Effective
Date and shall remain in effect until terminated in accordance with SECTION 6.2
OR 6.3.
6.2. TERMINATION FOR CAUSE. Either party may terminate any Statement of
Work issued hereunder, or this Agreement in its entirety (including all
Statements of Work then currently in effect), in the event that the other party
has not performed any material obligation or has otherwise breached any material
term of such Statement of Work or of this Agreement upon the expiration of
thirty (30) days (or any longer cure period authorized by the nonbreaching party
with respect to any individual breach) after receipt of written notice thereof
if the breach has not then been cured.
6.3. TERMINATION WITHOUT CAUSE. CDEX may terminate any Statement of Work
or this Agreement in its entirety (including all Statements of Work then
currently in effect) for its convenience at any time upon thirty (30) days'
prior written notice to Company. In the event of any such termination, Company
shall cease all Services on the effective date of termination, and CDEX shall
remain obligated to pay Company for Services rendered prior to the effective
date of termination, but such termination shall otherwise be without liability.
6.4. EFFECT OF TERMINATION. Within thirty (30) days after termination of
this Agreement, the receiving party shall promptly return to the disclosing
party or destroy (at the disclosing party's election) all Confidential
Information of the disclosing party then currently in the receiving party's
possession. Within thirty (30) days after termination of this Agreement, Company
shall promptly deliver to CDEX all CDEX Intellectual Property and all Developed
Materials then currently in Company's possession, whether or not such materials
have been completed.
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7. WARRANTY
7.1. SERVICES. Company warrants that all Services provided under this
Agreement shall be performed in a professional and workmanlike manner,
consistent with prevailing industry best practices. Company shall, at its
expense, re-perform any Services that are not performed in compliance with such
warranty.
7.2. DELIVERABLES. Company warrants that, for a period of ninety (90) days
following the date of CDEX's acceptance thereof, each Deliverable provided under
this Agreement shall perform in accordance with its applicable specifications
and shall be free from defects in material and workmanship as a result of
negligence in Company's work. Company shall, at its expense, repair or replace
any Deliverable that is non-conforming as a result of Company's negligence
brought to its attention within the applicable warranty period.
7.3. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN SECTION 7
ABOVE, NEITHER PARTY MAKES ANY WARRANTY TO THE OTHER PARTY OF ANY KIND, EXPRESS
OR IMPLIED, IN RELATION TO THIS AGREEMENT OR ITS SUBJECT MATTER, AND EACH PARTY
EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR OTHERWISE.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOSS OF
PROFITS OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES
INCURRED BY THE OTHER PARTY AND ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT FOR ANY CAUSE OF ACTION OF ANY KIND, WHETHER BASED UPON BREACH OF
CONTRACT OR TORT (INCLUDING NEGLIGENCE), EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY'S
TOTAL LIABILITY TO THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT FOR ANY CAUSE OF ACTION OF ANY KIND, WHETHER BASED UPON BREACH OF
CONTRACT OR TORT (INCLUDING NEGLIGENCE) EXCEED THE TOTAL AMOUNTS CDEX OWES TO
COMPANY FOR WORK DONE BASED ON THIS AGREEMENT.
9. GENERAL PROVISIONS
9.1. ASSIGNMENT. Neither this Agreement nor any rights granted hereby may
be assigned by either party (by operation of law or otherwise) without the prior
written consent of the other party. Notwithstanding the preceding, CDEX may
assign its rights and obligations under this Agreement without such consent to
an affiliate of CDEX or to any successor in interest of CDEX arising through any
merger, acquisition, combination, reorganization or sale of all or substantially
all of the assets or business of CDEX. Any attempt by either party to assign any
rights, duties or obligations without the requisite consent of the other party
shall be void and without force or effect.
9.2. MODIFICATION. This Agreement can only be modified by a written
amendment duly signed by persons authorized to sign agreements on behalf of
Company and of CDEX respectively, and any variation from the terms and
conditions of this Agreement in any oral or written notification given by either
party shall be of no force or effect.
9.3. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
9.4. RELATIONSHIP OF THE PARTIES. For purposes of this Agreement, CDEX and
Company will be and shall act as independent contractors, and neither party is
authorized to act as an agent, partner or joint venturer of the other party for
any reason. Neither party by virtue of this Agreement shall have any right,
power, or authority to act or create any obligation, express or implied, on
behalf of the other party.
9.5. EXPORT. Each party and its employees and agents shall comply fully
with all applicable laws, rules and regulations, including, but not limited to,
the United States Export Administration Act, any regulations promulgated
thereunder by the U.S. Department of Treasury's Office of Foreign Assets
Control, or the U.S. Department of Commerce's Bureau of Export Administration,
and any other regulations of the U.S. Government, relating to the export or
reexport of items relevant to this Agreement including any related technical
data.
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9.6. NOTICES. All notices, except as stated below with respect to Section
6, shall be in writing and shall be deemed to be delivered when deposited with a
recognized courier service, or when sent by facsimile transmission promptly
confirmed by return transmission. With respect to Section 6, Notice is deemed to
be delivered upon actual receipt by the other party. All notices shall be
directed to CDEX or Company at the respective addresses first set forth above or
to such other address as either party may, from time to time, designate by
notice to the other party.
9.7. GOVERNING LAW. This Agreement, and any and all claims (whether in
contract, tort or otherwise) that may arise out of or in connection with this
Agreement, and the Services will be governed by the laws of the State of
Maryland, excluding its conflicts of law principles.
9.8. NO COMPETE. Company acknowledges and agrees that CDEX may disclose to
Company in connection with the Services details regarding CDEX's proprietary
information which are highly sensitive, and that it will be difficult if not
impossible to determine whether such disclosure may lead to unauthorized use.
Consequently, Company hereby agrees that, for a period of three years from
completion of any Statement of Work issued under this Agreement, Company agrees
not to offer, sell or otherwise commercialize any fluorescence-based product or
technology, or any service utilizing any fluorescence-based product or
technology that, in any such case, are competitive with CDEX's
fluorescence-based products, technology or services.
9.9. FORCE MAJEURE. Neither party shall be liable for any damages or
penalty for any delay in performance of, or failure to perform, any obligation
hereunder or for failure to give the other party prior notice thereof when such
delay or failure is due to the elements, acts of God, delays in transportation,
governmental acts, or other causes beyond that party's reasonable control.
9.10. NO WAIVERS. No express or implied waiver by either party of any
event of default hereunder shall in any way be, or be construed as, a waiver of
any future or subsequent event of default.
9.11. SURVIVAL. The respective rights and obligations of the parties under
Sections 4, 5, 6.4, 7, 8, 9.3, 9.4, 9.6, 9.7, 9.9, 9.10, 9.11, 9.12, and 9.13
shall survive the termination of this Agreement.
9.12. TITLES AND CAPTIONS. Titles and captions contained in this Agreement
are inserted for convenience or reference only, shall not be deemed to be a part
of this Agreement for any other purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
9.13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.14. ENTIRE AGREEMENT. The parties acknowledge that this Agreement
(including the NDA), together with any Attachment hereto that is executed by
both parties, sets forth the final, complete, exclusive and integrated
understanding of the parties which supersedes all proposals or prior agreements,
oral or written, and all other prior communications between the parties relating
to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CDEX, INC. (CDEX) SYSTEMS 2000, INC. (COMPANY)
By: _____________________________ By: _____________________________
Title: __________________________ Title:___________________________
Date: ___________________________ Date:____________________________
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EXHIBIT B
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (the "Agreement"), made
effective as of January 26, 2004 (the "Effective Date"), by and between
CDEX Inc., a Nevada corporation (the "Company"), and Systems 2000, Inc.,
an Arizona corporation (the "Consultant").
WHEREAS, there exist certain confidential and proprietary information and
intellectual property rights which are important to the success of the
Company, and as an express condition for the Company's agreement to
discuss with Consultant items of mutual interest and to provide Company
with access to the said confidential and proprietary information and
intellectual property rights, the Consultant has agreed that it would keep
confidential and not disclose the Company's said confidential and
proprietary information and intellectual property rights, and would
execute this confidentiality and non-disclosure agreement to that effect.
NOW, THEREFORE, in consideration of the above, the rights and obligations
set forth herein, and other valuable considerations, the receipt and
sufficiency of which the parties hereby acknowledge, the parties hereby
agree as follows:
1. CONFIDENTIAL INFORMATION. The term "Confidential Information" as used
herein means trade secrets, confidential business or commercial
information, customer lists, vendor lists, technical information,
know-how, inventions, patents, discoveries (whether or not patentable),
copyrights, trademarks, service marks, techniques, data, systems, methods,
processes, improvements, developments, enhancements, and modifications,
and other proprietary rights, whether oral or written, or in recorded
form, tangible or intangible, that are from time to time owned or
possessed by or on behalf of the Company or any entity related by
ownership to the Company.
2. NO LICENSE. All Confidential Information disclosed to the Consultant, or
which is or may be available to the Consultant, shall be held in trust and
confidence by the Consultant for the Company. No interest or license of
any right respecting the Confidential Information, other than as expressly
set out herein, is granted to the Consultant under this Agreement by
implication or otherwise.
3. THE PURPOSE. The Consultant shall not use the Confidential Information in
any manner except as is reasonably required for the performance of the
Services Agreement between Consultant and CDEX dated January 26, 2004.
Such use shall be referred to herein as the "Purpose".
4. PROTECTION OF CONFIDENTIAL INFORMATION. The Consultant shall use his or
her best faith efforts to protect the Company's interest in the
Confidential Information and to keep it confidential, using a standard of
care no less than the degree of care that the Consultant would reasonably
be expected to employ for its own similar confidential information. In
particular, the Consultant shall not, directly or indirectly, disclose,
allow access to, transmit or transfer the Confidential Information to a
third party without the Company's prior written consent. Moreover, except
as necessary for the work being performed by the Consultant and its
employees, the Confidential Information shall not be copied, reproduced in
any form or stored in a retrieval system or database by the Consultant
without the prior written consent of the Company. The Consultant shall
promptly notify the Company of any unauthorized disclosure, release, or
transfer of the Confidential Information and shall provide reasonable
assistance to terminate such unauthorized use or disclosure.
5. RETURN OF CONFIDENTIAL INFORMATION. The Consultant shall, upon request of
the Company immediately return to the Company or destroy, as the Company
shall select, the Confidential Information and all copies thereof in any
form whatsoever under the possession, power or control of the Consultant.
Upon request, the Consultant shall provide the Company with a destruction
certificate.
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6. EXCEPTIONS. The obligations of the Consultant under Sections 1, 2, 3, 4,
and 5 herein shall not apply to Confidential Information which is required
to be disclosed by an order of a governmental agency, legislative body or
court of competent jurisdiction (provided that the receiving party
provides the disclosing party with immediate notice of such request or
requirement), or which at the time of disclosure is, or thereafter
becomes, available to the trade or the public without restriction other
than through the fault, negligence, or other acts of the Consultant. The
Consultant understands that public availability, or the availability from
a third party, of the individual parts of the Confidential Information
does not release his obligation of confidence for Confidential Information
that is not already publicly available.
7. VIOLATION OF AGREEMENT. Any violation or attempted violation of any
provision of this Agreement by the Consultant is an unauthorized use of
the Confidential Information and shall be deemed to be a material breach
of this Agreement. The Consultant hereby agrees to indemnify, defend and
hold harmless the Company from any and all claims, losses, actions,
injuries, damages, fines, penalties, or other liabilities, including but
not limited to loss of profits and other economic losses, attorneys' fees
and court costs, resulting from or related to the breach of this Agreement
by the Consultant. Without prejudice to the rights and remedies otherwise
available, the Company shall be entitled to equitable relief, such as for
an injunction or specific performance, without the need to post any bond
or surety, if the Consultant should breach or threaten to breach any of
the provisions of this Agreement. In the event that any enforcement action
is taken by either party hereunder, including filing an action in court or
in arbitration, the prevailing party shall be entitled to recover from the
losing party its costs and expenses, including its reasonable attorneys'
fees and court costs.
8. TERM. The term of this Agreement shall commence as of the Effective Date
and shall continue until five (5) years after the termination of the
related Engineering Services Agreement associated with this Agreement.
9. ARBITRATION. Any failure to perform, controversy or claim arising out of
or relating to this Agreement or the breach, termination or validity
thereof, other than an action by the Company for injunctive relief or
specific performance, shall be determined exclusively by arbitration in
accordance with the rules of the American Arbitration Association for
arbitrating commercial matters. The arbitration shall be held in
Washington, D.C., the surrounding metropolitan area of Maryland, or such
other location as the parties shall mutually agree. The arbitrators shall
base their award on applicable Maryland law and judicial precedent, and
shall accompany their award with written findings of fact and conclusions
of law. All expenses and fees of the arbitrator and expenses for hearing
facilities, stenographers, including attorneys' fees and the costs of
expert witnesses, and other expenses of the arbitrators shall be borne by
the prevailing party; provided, however, that the arbitrators may allocate
a portion of such expenses to the other party if the arbitrators believe
such a measure is justified by the conduct of the parties during the
arbitration.
10. MISCELLANEOUS. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof. There are no
representations, warranties, terms, conditions, undertakings or collateral
agreements, express, implied or statutory, between the parties respecting
the subject matter hereof other than as expressly set forth in this
Agreement. The Section and subsection headings contained in this Agreement
are inserted for convenience of reference only, shall not be deemed to be
a part of this Agreement for any purpose, and shall not in any way define
or affect the meaning, construction or scope of any of the provisions
hereof.
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IN WITNESS WHEREOF, the Consultant and the Company have executed this
Non-Disclosure and Confidentiality Agreement as set forth below as of the date
given above.
CDEX-INC.
By: ________________________________________(SEAL)
________________________________________
Printed Name
SYSTEMS 2000, INC.
By: ________________________________________(SEAL)
________________________________________
Printed Name
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