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Exhibit 10.13
BOREALIS SP AGREEMENT NUMBER 101
BOREALIS TECHNOLOGY CORPORATION
NORTH AMERICAN SOLUTION PROVIDER AGREEMENT
This North American Solution Provider Agreement (the "Agreement") is
made and entered into as of October 2, 1996, (the "Effective Date") by and
between Borealis Technology Corporation, a Delaware corporation with offices at
000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxxxx, XX 00000 ("Borealis"), and
American Technology Corporation, a Missouri corporation with offices at 0000 X.
Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxx, XX 00000-0000 ("Solution Provider").
RECITALS
A. Borealis Technology Corporation owns certain computer software
known as Arsenal Designer, Arsenal Client and Arsenal Application Server which
provides a Sales Automation development and runtime environment for the
development and execution of application programs used in connection with Sales
Automation.
B. Borealis desires to permit Provider and Solution Providers duly
authorized Implementation Agents to use such software, to develop such
application programs for Borealis and Solution Provider's customers, in
accordance with the terms and conditions of this Agreement.
NOW THEREFORE, Borealis and Solution Provider agree as follows:
1. DEFINITIONS
1.1 "Application" means a computer software program that is
developed and implemented by the Solution Provider using the Software. An
Application must consist of significant and material functionality separate
and independent of the functionality provided by the Software itself, and must
add significant commercial value independent of the Software. An Application
does not include any of the Software.
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1.2 "Arsenal Designer" means the portion of the Software that
defines and administers the Arsenal development, roll-out and system
administration environment.
1.3 "Arsenal Client" means the portion of the Software that
runs the compiled application developed with the Arsenal Designer.
1.4 "Arsenal Application Server" means the portion of the
Software that manages synchronization, roll-out and client server connections.
1.5 "Intellectual Property Rights" means patent rights,
copyright rights, trade secret rights, and any other intellectual property
rights recognized by the laws of an applicable jurisdiction.
1.6 "Software" means the Arsenal Designer, Arsenal Client,
Arsenal Application Server and other software generally made available to
customers as shown on the North American Price List and related documentation
listed on Exhibit A, including any bug fixes, modifications and updates thereto
provided by Borealis to Solution Provider or generally made available to its
customers.
1.7 "The North American Price List" means the standard list
price document generally made available to customers stating general terms and
conditions and list price for Borealis products and services attached hereto
and made a part hereof in Exhibit A.
1.8 "Products" means the software, manuals, brochures,
maintenance agreements and promotional items generally made available to
Borealis customers as shown on the North American Price List and related
documentation listed on Exhibit A.
1.9 "Implementation Agent" means a non-Solution Provider
employee that has been trained by Borealis in the implementation of Arsenal
Software. The Implementation Agent shall act as a contract employee/consultant
working for the Solution Provider. Solution Provider agrees that all
Implementation Agents will have current, signed contracts and confidentiality
agreements with Solution Provider. Solution Provider shall have complete
responsibility to maintain contractual, customer project management and
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customer interface responsibilities with all Solution Provider and/or Borealis
customers. Implementation Agents are not authorized to sell Borealis products.
2. LICENSE
2.1 Development License. Subject to the terms and conditions
of this Agreement, Borealis grants Solution Provider a non-exclusive,
non-transferable (except as specified in Section 2.2) license to use the
Software solely for the purpose of selling to Solution Provider and/or Borealis
customers and developing, demonstrating, testing, implementing, and maintaining
Applications for Borealis' and Solution Provider's end-user customers.
Solution Provider may modify the Arsenal Client and configure the Arsenal
Application Server solely as necessary to use the Software in accordance with
the license rights granted under this Section 2.1. Solution Provider may not
modify the Arsenal Designer or any Software except for the Arsenal Client.
2.2 Distribution and Software License Agreement. Subject to
the terms and conditions of this Agreement, Borealis grants Solution Provider a
non-exclusive, non-transferable license to distribute copies of the Software
ordered by Solution Provider to Solution Provider's end user customers, in
machine-readable, compiled object code format only, along with transferring the
license rights to use such copies of the Software only for such customers'
internal business purposes, only in connection with the sale or license of an
Application developed and implemented for such customer, according to the terms
of the standard Borealis North American Software License Agreement, as
attached hereto and made a part hereof in Exhibit C (the "North American
Software License Agreement"). Solution Provider acknowledges and agrees that,
prior to such transfer, Solution Provider shall obtain from such end user
customer an executed copy of the North American Software License Agreement.
For each such transfer, Solution Provider will promptly submit to Borealis an
executed North American Software License Agreement, as attached hereto and made
a part hereof in Exhibit C. Solution Provider shall have no right to
sublicense the rights granted hereunder. Solution Provider shall not
distribute or market the Software in any manner except as expressly provided in
this Section 2.2. Solution Provider specifically acknowledges and agrees that
Solution Provider shall only distribute Software to customers for use by each
such customer on computers at least forty percent (40%) of which are located in
North America, as provided in the North American Software
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License Agreement. Solution Provider agrees to use reasonable commercial
efforts to enforce violations, infringements and breaches under the North
American Software License Agreements and to inform Borealis promptly of any
known violations, infringements and breaches.
3. LICENSE RESTRICTIONS
3.1 No Unauthorized Transfers. Solution Provider will not
transfer, sublicense, sell, lease, or otherwise distribute or make available
the Software to any third party, except as expressly authorized in this
Agreement.
3.2 No Reverse Engineering. Solution Provider will not
disassemble, decompile, reverse engineer or otherwise attempt to determine the
source code or structure of the Software nor permit any third party to do so.
3.3 No Unauthorized Modifications. Solution Provider will not
modify the Software, except as expressly authorized in Section 2.1 hereof.
3.4 No Unauthorized Use. Solution Provider will not use the
Software, except as expressly authorized in Section 2.1 hereof.
3.5 No Copying. Solution Provider will not copy the Software,
except as necessary to use the Software in accordance with the license granted
under Section 2, and except for a reasonable number of copies for backup and
archival and a reasonable number of copies of customer applications required to
support a Solution Provider or Borealis customer implementation of Arsenal.
Solution Provider will reproduce any copyright notice or other proprietary
notice or legend of Borealis on each copy Solution Provider makes of the
Software.
3.6 Limited Rights. No license or other right is granted, by
implication, estoppel or otherwise, to Solution Provider, under any Intellectual
Property Rights now or hereafter owned or controlled by Borealis except for the
licenses expressly granted in Section 2. Borealis reserves all rights and
licenses to the Software not expressly granted to Solution Provider hereunder.
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4. INTELLECTUAL PROPERTY OWNERSHIP
4.1 Borealis' Rights. Borealis has and will at all times retain
sole and exclusive ownership of all Intellectual Property Rights and all other
right, title and interest worldwide in and to the Software, whether or not the
Software is incorporated in or combined with any other product.
4.2 Solution Provider's Rights. Subject to Borealis' rights in
the Software, Solution Provider has and will at all times retain sole and
exclusive ownership of all Intellectual Property Rights, and all other right,
title and interest worldwide in all modification made by Solution Provider to
the Arsenal Client as expressly authorized herein, and to any Application
developed by Solution Provider using the Software.
5. ORDERING
5.1 Orders. Solution Provider will order Products from Borealis
by purchase order. Solution Provider may order copies of the Software for use
by Solution Provider in accordance with its license rights granted under
Section 2.1 or for distribution to Borealis' and Solution Provider's end-user
customers for use in connection with such customers' use of Application
developed by Solution Provider, as authorized in Section 2.2.
5.2 Acceptance. All purchase orders shall require customer end
user information and are subject to acceptance by Borealis, at its sole
discretion. Each purchase order submitted by Solution Provider will specify
whether such copy will be used by Solution Provider or transferred to a
Solution Provider end user customer. In the latter case, Solution Provider
shall attach a completed Borealis North American Software License Agreement
with such purchase order. Any terms and conditions of any such purchase order
which are in addition to or inconsistent with the terms and conditions of this
Agreement will be deemed stricken from such purchase order.
5.3 Shipment. Orders will be shipped F.O.B. Borealis' site
freight paid. Unless specified in Solution Provider's purchase order, Borealis
will select the mode of shipment and the carrier. Borealis will use its
reasonable efforts to ship ordered products
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to the Solution Provider in accordance with delivery schedules specified in the
purchase order as accepted by Borealis. Solution Provider will be solely
responsible for shipping to Solution Provider's customers copies of Products
ordered by Solution Provider for such customers under this Agreement.
6. PAYMENTS
6.1 Prices and Payments for Products. During the term of this
Agreement, the prices for Products ordered by Solution Provider pursuant to
Section 5.1 will be determined by Borealis' then-current North American Price
List, adjusted by the Solution Provider Product discounts set forth in Exhibit
B. Borealis' prices for the Products are subject to change upon thirty (30)
days written notice to Solution Provider. Multiple user pricing is on a per
customer basis only. Customer orders cannot be combined to achieve lower per
user licensing cost. All shipping, insurance and other similar charges for
delivery of the Products to Solution Provider will be paid by the Solution
Provider.
6.2 Payment Terms. Solution Provider will make all payments to
Borealis due under this Agreement within thirty (30) days of the invoice date
of each invoice from Borealis. Any payment not paid within thirty (30) days of
the invoice date shall be subject to an interest charge, computed on the unpaid
daily balance, of the lesser of (i) one and one-half percent (1.5%) per month
and (ii) the maximum rate permitted by law. Solution Provider shall pay all of
Borealis' costs and expenses (including reasonable attorney's fees) to enforce
and preserve Borealis' rights under this Section 6.2.
6.3 Taxes. All amounts payable under this Agreement are
exclusive of all sales, use, value-added, withholding, and other taxes and
duties. Solution Provider will pay all taxes and duties assessed in connection
with this Agreement and its performance by any authority within or outside of
the U.S., except for taxes payable on Borealis' net income. Borealis will be
promptly reimbursed by Solution Provider for any and all taxes or duties that
Borealis may be required to pay in connection with this Agreement and its
performance.
7. SOLUTION PROVIDER PRICING FREEDOM. Solution Provider is and
will remain entirely free to determine its own resale prices and license fees
for the Software and Applications at its own discretion.
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8. CONFIDENTIALITY
8.1 Confidentiality Obligations. Solution Provider
acknowledges that the Software (including without limitation the source code
for the Software) and any other technical, financial or business information
disclosed by Borealis to Solution Provider ("Confidential Information")
contains valuable confidential and proprietary information and trade secrets
that belong to Borealis, and that the unauthorized use or disclosure of any
such Confidential Information would cause irreparable financial and other
damages to Borealis. Solution Provider will not disclose to any third party or
use or duplicate any Confidential Information for any purpose, except as
expressly authorized in this Agreement. Solution Provider will limit the
disclosure of Confidential Information to those employees of Solution Provider
who have a need to access Confidential Information for the performance of this
Agreement and who have executed a non-disclosure agreement consistent with the
terms of this Agreement. Solution Provider further agrees to take all
reasonable measures to maintain the confidence of all Confidential Information
in Solution Provider's possession or control, which measures will in no event
be less than the measures Solution Provider takes to protect its own
confidential and proprietary information of similar importance.
8.2 Exceptions. Confidential Information does not include
information that: (a) is now or subsequently becomes generally available to the
public through no fault or breach on the part of Solution Provider; (b)
Solution Provider can demonstrate was rightfully in its possession without an
obligation of confidentiality prior to disclosure to Solution Provider by
Borealis; (c) is independently developed by Solution Provider without use of
any Confidential Information, as evidenced by written documentation; or (d)
Solution Provider rightfully obtains from a third party, without restriction as
to use or disclosure.
8.3 Injunctive Relief. The parties acknowledge that (i) the
restrictions and obligations contained in this Section 8 are reasonable and
necessary to protect Borealis' legitimate interests, (ii) in the event of a
violation of these restrictions, remedies at law may be inadequate and such
violation may cause irreparable damages to Borealis within a short period of
time, and (iii) that Borealis will be entitled to seek injunctive relief
against each and every violation without the necessity of posting a bond.
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8.4 Licensing Agreement. All details of this Solution Provider
agreement (pricing, terms, etc.) is confidential information between Borealis
and Solution Provider.
9. MAINTENANCE AND SUPPORT
9.1 By Borealis. Except as otherwise agreed to in writing by
the parties, Borealis shall not be responsible for providing support to
Solution Provider's end-user customers in connection with such customers' use
of Applications or with such customers use of the Software. Subject to receipt
by Borealis of all payments for maintenance of the Software, Borealis will
provide Solution Provider with: (i) software updates, revisions and error
corrections for the Software in accordance with Borealis' standard maintenance
and support policies and procedures; (ii) updates and enhancements for the
Software to the extent that Borealis generally provides such updates and
enhancements to Borealis' system Solution Provider customers without separately
charging for such updates and enhancements; and (iii) access to Borealis'
"hot-line" for inquiries from Solution Provider relating to the Software on
Borealis' normal business days and access to standard product training and
implementation training.
9.2 By Solution Provider. Solution Provider acknowledges that
it is solely responsible for providing first-line technical support to its
end-user customers in connection with such customers' use of Applications and
Software, at a level consistent with generally-accepted industry standards for
such support. At a minimum, Solution Provider will: (a) provide prompt pre- and
post-sales support for Software and for all Applications developed by Solution
Provider for its customers; (b) provide installation assistance and
consultation on the use of Applications and Software; (c) timely respond to
customers' general questions concerning use of Applications and Software; and
(iv) assist customers in the diagnosis and correction of problems encountered
in using Applications and Software. Borealis reserves the right to amend the
prices charged by Borealis for such maintenance and support services if
Borealis determines in its reasonable discretion, that Solution Provider has
failed to provide maintenance and support services to Solution Provider's
end-user customers consistent with the terms and conditions set forth in
Section 9.2. In addition, Solution Provider agrees to establish Borealis
dedicated support persons
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that will be available during normal Solution Provider business hours to
support customer inquiries, questions and problems, etc. At a minimum, Solution
Provider further agrees to support customers with the call back response times
and capabilities described by Exhibit D.
10. LIMITED WARRANTY
10.1 Limited Warranty. Borealis warrants that, for a period of
one hundred eighty (180) days after shipment of the Software to Solution
Provider, such Software will substantially conform with the applicable
documentation in all material respects. Borealis does not warrant that the
operation of the Software will be uninterrupted or error free. Solution
Provider's sole remedy for any failure of the Software to conform to such
warranty shall be to notify Borealis of the problem, in which event Borealis
shall use all reasonable and diligent efforts to promptly correct such problem
or provide a workaround or replacement for such Software.
10.2 Disclaimer. THE PROVISIONS OF THIS SECTION 10 SET FORTH
SOLUTION PROVIDER'S SOLE REMEDY AND BOREALIS' SOLE LIABILITY WITH RESPECT TO
THE PERFORMANCE OF THE SOFTWARE, REGARDLESS OF WHETHER THIS REMEDY FAILS OF ITS
ESSENTIAL PURPOSE. BOREALIS HEREBY DISCLAIMS ALL OTHER WARRANTIES TO SOLUTION
PROVIDER OR ITS CUSTOMERS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING
BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT. THE EXPRESS LIMITED WARRANTY STATED
ABOVE IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF BOREALIS FOR DAMAGES
INCLUDING, BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES OCCURRING
OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCTS.
11. LIMITATIONS OF LIABILITY
11.1 General Limitation. REGARDLESS OF WHETHER ANY REMEDY SET
FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, BOREALIS SHALL NOT BE LIABLE TO
SOLUTION PROVIDER OR TO ANY THIRD PARTY FOR ANY
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LOST PROFITS, LOSS OF USE OR LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY
OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND
WHETHER UNDER THIS AGREEMENT OR OTHERWISE AND WHETHER UNDER THEORY OF CONTRACT,
TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
11.2 Overall Liability. BOREALIS' TOTAL LIABILITY UNDER THIS
AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY SOLUTION PROVIDER TO
BOREALIS FOR THE ITEM OR THE PRODUCT THAT GIVES RISE TO THE LIABILITY.
12. INDEMNIFICATION
12.1 Borealis Indemnity. Borealis shall defend, at its
expense, any claim (or suit) brought against Solution Provider alleging that
the Software furnished hereunder infringes any United States Intellectual
Property Rights (excluding patent rights) of any third party, and will pay all
costs (including reasonable attorney's fees) and damages finally awarded
against Solution Provider in any such suit, provided that Borealis is given
prompt written notice of such claim and is given information, reasonable
assistance and sole authority to defend or settle the claim. Should the
Software become, or in Borealis' opinion be likely to become, the subject of a
claim infringement, Borealis may (a) obtain for Solution Provider the right to
continue using the Software, (b) replace or modify the Software so that it
becomes non-infringing, or (c) should either of the foregoing not be reasonably
available in Borealis' reasonable judgment, terminate this Agreement without
liability and return to Solution Provider an amount calculated based on the sum
of payments made pursuant to this Agreement to Borealis during the three (3)
years prior to termination, in each case reduced on a pro-rated monthly basis
from the date of such payment.
12.2 Exceptions. Borealis will have no liability under
Section 12.1 above if the alleged infringement arises from: (a) the
combination, operation or use of the Software with programs or data not
supplied by Borealis or (b) modifications of the Software not made by Borealis.
Solution Provider will defend, at its expense, any claim
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(suit) brought against Borealis as a result of infringement or alleged
infringement covered by this section 12.2 and will pay all costs and damages
finally awarded in any such suit.
12.3 Solution Provider Indemnity. Except for Borealis'
obligations under Section 12.1, Solution Provider shall defend, at its expense,
any claim (or suit) brought against Borealis arising out of any acts, omissions
or negligence of Solution Provider, its employees or agents, in connection with
the use of the Software, and will pay all costs (including reasonable
attorney's fees) and damages finally awarded in any such suit, provided that
Solution Provider is given prompt written notice of such claims and is given
information, reasonable assistance and sole authority to defend or settle the
claim.
12.4 Exclusive Remedy. THE PROVISIONS OF THIS SECTION 12 SET
FORTH SOLUTION PROVIDER'S SOLE REMEDY AND BOREALIS' SOLE LIABILITY WITH RESPECT
TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
13. TERM AND TERMINATION
13.1 Term. This Agreement will become effective on the
Effective Date and will continue in full force and effect until December 31,
1999 (the "Initial Period"), unless terminated earlier in accordance with the
terms of this Agreement. At the end of the Initial Period, this Agreement will
automatically renew for successive one year periods ("Renewal Periods") unless
either party provides written notice to the other party, at least thirty (30)
days prior to the end of the Initial or any Renewal Period of its intent to
terminate this Agreement, in which case this Agreement shall terminate at the
end of such period.
13.2 Termination for Material Breach. Either party may
terminate this Agreement at any time if the other party commits a material
breach of any of the material terms or conditions of this Agreement and fails
to remedy such breach within thirty (30) days after receiving written notice
from the other party of such breach.
13.3 Automatic Termination. To the extent permitted by
applicable law, this Agreement will automatically terminate without notice if
either party: (a) becomes insolvent, or unable to pay its debts as they mature;
(b) makes an assignment for the benefit
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of its creditors; (c) is liquidated or dissolved; or (d) has proceedings
commenced against it (whether voluntary or involuntary) under any bankruptcy,
insolvency or debtors' relief law and, in the case of involuntary proceedings,
such proceedings are not vacated or set aside within (60) days from the date of
commencement thereof.
13.4 Termination for Convenience. Borealis shall not
terminate this agreement for convenience prior to December 31, 1999. After
December 31, 1999 Borealis may terminate this Agreement upon one hundred eighty
(180) days written notice to Solution Provider.
13.5 Effect of Termination.
(a) Upon the expiration or termination of this Agreement,
the rights and license granted to Solution Provider under this Agreement will
automatically cease and Solution Provider will immediately return to Borealis,
or at Borealis' option, to another solution provider, all of Solution Provider's
copies of the Software and all materials and other items relating to the
Software (except as specified in Section 13.5(b), below), including, without
limitation, the Confidential Information of Borealis, all portions thereof and
all copies of the same. At the Solution Providers option, Solution Provider
shall be permitted to convert consigned Software to licensed software at the
equivalent list price of said software, less the Solution Providers standard
discount in effect at the time of termination. The Solution Providers initial
consignment fee shall be applied to the purchase of said software. In addition,
Solution Provider shall immediately transfer to Borealis, or at Borealis'
option, to another solution provider, all additional materials and information
necessary to enable Borealis or another solution provider to support Solution
Provider's end-user customer's use of the Software and Applications. At
Borealis' option and upon the prior written approval of Borealis, Solution
Provider may destroy all such items instead of returning them, provided Solution
Provider gives Borealis written certification by an officer of Solution Provider
that all such items have been destroyed.
(b) Notwithstanding Section 13.5(a), upon the expiration
or termination of this Agreement, for a period not to exceed one hundred and
eighty (180) days after termination, Solution Provider shall continue to have
sole responsibility for supporting its existing end-user customers until the
transfer of all technology and information set forth in Section 13.5(a), has
been completed and Borealis or another
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solution provider is able to provide such support. During such period, Solution
Provider may receive support from Borealis in connection with such end-user
customers; provided, however, that Solution Provider pays Borealis a percentage
(to be determined by the parties) of any maintenance fees received by Solution
Provider from all such end-users who pay maintenance fees to Solution Provider.
Notwithstanding the foregoing, Solution Provider agrees that Borealis will have
the right to amend such percentage if Borealis determines, in its reasonable
discretion, that Solution Provider has failed to provide maintenance and
support services to Solution Provider's end-user customers consistent with the
terms and conditions set forth in Section 9.2.
(c) All copies of the Software transferred to Solution
Provider end-user customers shall remain subject to the End-User License
Agreements between Borealis and such end-user customers.
13.6 No Damages for Termination. Neither party will be liable
to the other for damages of any type solely as a result of terminating this
Agreement in accordance with its terms.
13.7 Survival. The rights and obligations of the parties under
Sections 4, 6, 8, 10.2, 11, 13.5, 13.6, 14 and 15 will survive the termination
or expiration of this Agreement for any reason.
14. EXPORT CONTROL. Borealis Products are not for export outside
of North America defined as Canada, Mexico and the United States. Solution
Provider agrees to comply with all export laws and restrictions and regulations
of the United States Department of Commerce or other United States or other
sovereign agency or authority, and not to export, or allow the export or
re-export of any technical data or any direct product thereof in violation of
any such restrictions, laws or regulations, or unless and until all required
licenses and authorizations are obtained to the countries specified in the
current U.S. Export Administration Regulations (or any successor supplement or
regulations). Solution Provider further agrees to provide Borealis with any and
all letters of assurance or other articles required by the United States
Department of Commerce or other United States or other sovereign agency or
authority.
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15. GENERAL TERMS
15.1 Assignment. This Agreement will bind and inure to the
benefit of each party's permitted successors and assigns. Solution Provider may
not assign, sublicense or transfer any of its rights or obligations hereunder
either in whole or in part, without the prior written consent of Borealis. Any
attempt to assign this Agreement without such consent will be null and void.
15.2 Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Nevada, except that body
of law concerning conflicts of law. The parties agree that any disputes arising
under this Agreement will be resolved in the state or federal courts located in
Reno, Nevada and the parties expressly consent to personal jurisdiction therein.
15.3 Severability. If for any reason a court of competent
jurisdiction finds any provision of this Agreement invalid or unenforceable,
that provision of the Agreement will be enforced to the maximum extent
permissible and the other provisions of this Agreement will remain in full
force and effect.
15.4 Arbitration. Any controversy or claim arising out of, or
relating to this Agreement, or the breach thereof, will be settled by binding
arbitration in English in Reno, Nevada before a single arbitrator reasonably
familiar with the technology and business pertaining to the products covered by
this Agreement, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The parties
agree that this Section 15.4 does not apply to breaches of confidentiality or
Intellectual Property Rights provisions and that either party may petition a
court of law for injunctive relief and such other rights and remedies as it may
have at law or equity against such breaches.
15.5 Force Majeure. Neither party will be responsible for any
failure or delay in its performance under this Agreement (except of payment for
money owed) due to causes beyond its reasonable control (each a "Force
Majeure"), including, but not limited to, acts of God, war, riot, embargoes,
acts of civil or military authorities, fire, floods, earthquakes, accidents,
strikes, or fuel crises, provided that the delayed party (i) gives
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prompt written notice thereof to the other party, and in any event within
fifteen (15) days of discovery thereof; and (ii) uses its reasonable efforts to
correct such failure or delay in its performance. The delayed party's time for
performance or cure under this Section 15.5 shall be extended for a period
equal to the duration of the Force Majeure.
15.6 Notices. All notices under this Agreement will be deemed
given when delivered personally, sent by confirmed facsimile transmission, sent
by certified or registered U.S. mail, return receipt requested, postage
prepaid, or sent by nationally-recognized express courier to the address listed
above or as may otherwise be specified by either party to the other in
accordance with this section.
15.7 Relationship of Parties. Solution Provider is an
independent contractor. Neither Solution Provider nor Solution Provider's
employees, consultants, contractors or agents are agents, employees, partners
or joint ventures of Borealis, nor do they have any authority to bind Borealis
by contract or otherwise to any obligation.
15.8 Waiver. No failure of either party to exercise or enforce
any of its rights under this Agreement will act as a waiver of such rights.
15.9 Entire Agreement. This Agreement and its exhibition are the
complete and exclusive agreement between the parties with respect to the subject
matter hereof, superseding and replacing any and all prior Agreements,
communications, and understandings (both written and oral), regarding such
subject matter. This Agreement may only be modified, or any rights under it
waived, by a written document executed by both parties.
15.10 Equitable Relief. Solution Provider acknowledges that any
breach of its obligations under this Agreement with respect to the Intellectual
Property Rights or Confidential Information of Borealis will cause Borealis
irreparable harm and significant
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injury which would be difficult to ascertain and which would not be compensable
by damages alone, and, therefore, that Borealis will be entitled to equitable
relief in addition to all other remedies provided by this Agreement or available
at law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the Effective Date by their duly authorized representatives.
SOLUTION PROVIDER BOREALIS
By /s/ XXXXXX XXXXX By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: President Title: Chief Operating Officer
Address: 0000 X. Xxxxxxxxxx Xxxx, Xxxxx 000 Address: 000 Xxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000-0000 Xxxxxxx Xxxxxxx, Xxxxxx 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Contact: Xxxxxx Xxxxx Contact: Xxxxxxx "Skip" King
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