EXHIBIT 10.21
Mutual Release Agreement
This Mutual Release Agreement, made and entered into this 7 day of
November, 2000, by and between Viador, Inc., a California corporation with
its principal business office located at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx, XXX ("Viador"), and Viador GmbH, a German limited liability
company, with its principal business office located at Xxxx-Xxxxxxxxxx
Xxxxxxx 00, 00000 Xxxxxxxxx, Xxxxxxx; Xxxxx & Xxxxxxx GmbH located at Xxxxxx
Xxxxx0x 000, 00000 Xxxxxxxx, Xxxxxxx (HRB 2784); Xxxxx, Xxxxx; Nina und Xxx
Webersinke GbR, represented by Xxxxx, Xxxxxx, Nina and Xxx Webershilce,
located at Xxxxxxxx 00, 00000 Xxxxxxxxxx, Xxxxxxx; Sirippel
Beteiligungsgesellschaft mbH, located at Xxxxxxxx 0, 00000 Xxxxxxx, Xxxxxxx
(collectively "Distributor").
WITNESSETH:
WHEREAS, Viador and Viador GmbH are parties to that certain Software
Marketing and Distribution Agreement (the "Software Distribution Agreement"),
under the terms of which Viador appointed Viador GmbIi as its distributor of
Viador Software products in Germany; and
WHEREAS, the parties now wish to cancel the Software Distribution
Agreement, and to grant to each other mutual releases of all claims and
obligations each may have against the other.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions set forth herein, the parties to this Agreement do
agree as follows:
Article 1: Cancellation of Software Distribution A~recment
a. Effective inunediately upon the payment by Viador to Viador GmbH
of the consideration provided for in Article 4(a) hereof ("Effective Date"),
the Software Distribution Agreement shall be, and hereby is, cancelled.
Thereafter, neither party hereto shall have any rights or obligations
whatsoever under the Software Distribution Agreement, expect as specifically
provided herein.
b. Without limiting the generality of Article 1(a) hereof; upon
cancellation of the Software Disiributiori Agreement, Distributor shall not:
(i) use any marketing materials, technical information or other matsrials
furnished by Viador to Distributor, or any other materials that refer to
Viador or any of Viador's Software products, for any purpose whatsoever; or
(ii) represent to any other person, firm, corporation or other entity that
Distributor has any rights whatsoever under the Software Distribution
Agreement. Within seven (7) days after the Effective Date, Distributor shall
return to Viador, or destroy, as Viador shall direct in writing, all copies
of all documents and other materials in Distributor's possession that contain
or embody any of Viadofs Confidential Information.
Article 2: Release of Claims
a. As used herein, "Claims" shall mean any and all manner of action
or actions, cause or causes of action, in law or in equity, suits,
liabilities, obligations, debts, contracts, liens, invoices, agreements,
promises, liabilities, claims, demands, damages, losses, costs or expenses,
of any nature whatsoever, known or unknown, fixed or contingent, which a
party has as of the Effective Date by reason of any matter, including without
limitation any claims arising out of, based upon, or that relate in any way
to the Software Distribution Agreement, as well as any matters, causes or
things whatsoever that were, or have been, or could in any way have been
alleged in connection with and/or in regard to any dispute arising out of
such matters.
b. Except as specifically provided in Article 2(d) hereof,
effective imme~iiately upon the Effective Date, each party to this Agreement,
on its own behalf and on behalf of its shareholders, officers, directors,
employees, subsidiaries, successors and assigns hereby waives, releases and
discharges the other party hereto, and
all of that other party's shareholders, officer, directors, employees,
subsidiaries, successors and assigns, from any 2nd all Claims, obligations,
rights and actions that each party may have against the other.
- C. Without limiting the generality of Article 2(a) hereof;
Distributor hereby acknowledges that the consideration payable to Distributor
by Viador under Article 4(a) of this Agreement is in lieu of any and all
other compensation whatsoever, and Distributor hereby waives any claim to any
compensation, reimbursement, indemnification or damages whatsoever by virtue
of the cancellation of the Software Distribution Agreement
d. Each party hereby acknowledges and agrees that the release of
Claims, as set forth in Article 2(a) and 2(b) hereof, covers all Claims,
known and unknown, foreseen and unforeseen, which have accrued as of the
Effective Date. Without limiting the generality of this Article 2(c), each
party hereby waives the benefits of California Civil Code section 1542, which
reads as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known to him must have materially
affected his settlement with the debtor.
Notwithstanding the mutual release of claims, as set forth in
Article 2(a) and 2 (b) hereof; nothing in this Agreement shall be construed
to release either party from its duty of confidentiality with respect to the
other party's confidential information, as set forth in the Software
Distribution Agreement.
3. Rights in Trademarks, Trade Names and Corporate Names
a. Immediately upon execution of this Agreement, Distributor shall
cease all use of the "Viador" trademark and trade name, and shall not
thereafter use the "Viador" trademark or trade name, or any confusingly
similar trademark or trade name, for any purpose whatsoever.
b. Distributor hereby disclaims any right, title or interest in or
to the "Viador" trademark and trade name, and, to the extent that Distributor
has, or hereafter acquires, any right, title or interest in or to the
"Viador" trademark or trade name, Distributor shall, and hereby does, assign,
transfer and convey all such rights, title and interests to Viador.
Distributor shall execute and deliver all documents and other instruments
reasonably requested by Viador to assign, transfer and convey all of
Distributor's rights, if any, in and to the "Viador" trademark and trade
name.
c. Within ninety (90) days after the date of execution of this
Agreement, Viador GmbH shall change its corporate name so as to delete any
reference to "Viador" from that corporate name. Viador shall reimburse Viador
GmbH for all notarial fees, legal and registration fees incurred by Viador
GmbH in connection with the change of Viador GmbH's corporate name under this
Article 3(c); Viador will pay a lump sum of $4,000, which Viador Gmbh agrees
and stipulates covers all the above fees and which will be provided together
but on top of the paym~nt of $142,000; Viador shall not be required to pay
any additional fees above the $4,000.
d. Distributor hereby assigns, transfers and conveys all its rights,
title and interest in and to any all Intem~t domain names that include the
Viador name including without limitation "xxx.xxxxxx.xx." Distributor shall,
within seven (7) days of the Effective Date, take all reasonable actions to
fhcilitate the foregoing assignment and transfer of such domain names with
the applicable domain name registration administrators including without
limitation the execution and filing of all assignment and transfer
documentation of such administrators. Viador shall be solely responsible for
any and all fees charged by such domain name registration administrators.
Article 4: Consideration
a. In consideration for the cancellation of the Software
Distribution Agreement and the other rights granted by Distributor to Viador
hereunder, Viador shall pay to Viador GmbH the sum of Xxx Xxxxxxx Xxxxx-Xxx
Xxxxxxxx Xxxxxx Xxxxxx Dollars (US$142,000.00) (the "Consideration"). -
Mutual ReleaseAgreement(11.03.00) 2
b. Viador shall pay to Viador GmbH the this amount of the
Consideration, together with any and all ~mounts reimbursable by Viador under
Article 3(c) hereof, within thirty (30) days after the date of execution of
this Agreement. All amounts payabie by Viador to Viador GnibH shall be paid in
United States Dollars, in immediately available funds to the Viador GxnbH
account at the Kreissparkasse in Boeblingen, with the following SWIFT code: via
XXXXXXXXXXX 1626469.
c. Distributor hereby acknowledges and agrees that the Consideration
payable by Viador under Article 4(a) hereof constitutes the sole compensation
payab'e by Viador hereunder, and, except as provided in Article 3(c) with
respect to reimbursement of Viador GmbH's notarial fees and registration fees,
Viador shall have no other payment obligations to Distributor hereunder
whatsoever.
d. Viador hereby acknowledges and agrees that Distributor shall have
no obligation to pay any money, to make any loans, or provide any othcr
consideration whatsoever to Viador, except as specifically provided in this
Agreement.
a. Nothing in this Agreement shall be construed to prohibit or
restrict Viador from contacting, offering or supplying any products or
services, or otherwise engaging in any business transaction whatsoever with any
existing or prospective customer of Distributor; provided, however, that
Distributor shall have no obligation whatsoever hereunder to furnish any
customer lists, prospect databases or contact information to Viador.
b. For a period twelve (12) months after the date of Cxecution of
this Agreement, Distributor shall perform such consulting services for Viador
as Viador shall request, and as Distributor shall accept, in writing. Viador
shall be solely responsible for any arid all expenses incurred by Distributor,
plus a service charge of 35% to cover local GmbN costs, in connection with the
performance of such consulting services for Viador under this Article 5(b);
provided, however, that all such expenses shall be approved in advance by
Viador. Any additiorial fecs to be charged by Distributor to Viador for such
services shall be set Out and agreed upon in a signed writing between the
parties. (e.g. one consultant will be charged with $ 1.000 plus travel expenses
for all other items the real cost plus 35% service charge)
Article 6: General Provisions
a. Further Actions: Each party shall take all actions, and shall
execute and deliver all documents and other instruments reasonably requested by
the other party hereto, in order to achieve the objectives of this Agreement,
including, but not limited to, the release of claims, as provided in Article 2
hereof.
b. Representations and Warranties: Each party represents and warrants
that: (i) it is duly authorized to execute, deliver and perform this Agreement;
(II) it has read this Agreement and fully understands the terms and conditions
hereof, (iii) it has had the opportunity to consult with legal counselof its
own choice as to the legal impli~ations hereof~ and (iv) this Agreement is the
result of good faith negotiations between the parties, and shall not be
coistrued as an admission of any liability by any party under the Software
Distribution Agreement.
e. Notices: All notices and other communications between the parties
under this Agreement shall be sent by international air courier, or by
facsimile with a confirmation copy sent by international air courier, addressed
as follows;
Viador, Inc. Viador GmbH
0000 Xxxxxxxxxx Xxxx Xxxx-Xxxxxxxxxx Xxxxxxx 00
Mountain View, CA 71034 Boblingen, Germany
USA
By:.
Name
:
Titl
e:
Date
d:
Viador
QrnbH -
By:
By:
Name
:
Titl
e:
Date
d;
Any notice or other communication given in accordance with this Article
6(c) shall be deemed received: (1) if sent by international air
courier, seven (7) days after the date of dispatch; and (ii) !f sent by
facsimile, twenty-four (24) hours after the time and date of
transmission.
d. Governing Law and xxxx~ute Resolution: This Agreement
shall be governed by, and interpreted in accordance with, the laws of
the State of California, U.S.A., excluding conflicts of laws rules. Any
dispute between the parties arising out of, or relating to, the
validity, performance, interpretation or consmiction of this Agreement
shall be submitted to the exclusive jurisdiction of the courts,
including the United States District Courts, in California. Distributor
hereby irrevocably consents to the personal jurisdiction of the courts
in California for the resolution of all disputes hereunder.
e. Successors and Assigns: This Agreement shall be binding
upon, and shall inure to the benefit of, the parties' respective
successors and assigns.
t Counterparts: This Agreement may be executed in several
counterparts,. each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
~. Headings: The subject headings of this Agreement are
included for purposes of convenience only, and shall not affect the
construction or interpretation of any provision hereof.
h. Entire Agreement and Amendments: This Agreement
con5titutes the entire agreement between the parties, and supersedes
all prior agreements, understandings and other communications between
the parties with respect to the subject matter hereof. No modification
or amendment to this Agreement shall be binding upon the parties hereto
unless in writing and executed by the duly authorized representatives
of each of the parties.
TN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective dujy authorized representatives.
Viador, Inc.
