STRATEGIC ALLIANCE AGREEMENT
Exhibit
10.1
This
Strategic Alliance Agreement (this “Agreement”), effective as of 15 April, 2009
(the “Effective Date”), is by and between Information System Associates, Inc., a
Florida Corporation whose registered office is 0000 Xxxxxxxxx 00xx Xxxxxx,
Xxxxx X, Xxxx Xxxx XX, 00000 (“ISA”) and Rubicon Software Group plc, a company
registered under the laws of England and Wales (Registered Company No. 5701810)
whose registered office is Xxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxx Xxx, Xxxxxx XX00
0XX (“Rubicon”).
Background
WHEREAS,
Rubicon desires to engage ISA as Rubicon’s exclusive agent in the United States
for the purposes of reselling Rubicon’s software and services;
WHEREAS,
ISA desires to engage Rubicon as its software development partner and to provide
various consulting services in Europe; and
WHEREAS,
ISA and Rubicon desire to enter into this Agreement for the purpose of granting
ISA the right to distribute such products and services and Rubicon to supply
such services.
NOW,
THEREFORE, the parties hereto, intending to be legally bound, hereby agree as
hereinafter set forth.
1. DEFINITIONS.
1.1 Confidential Information shall
mean all non-public information of a Party, which is disclosed to the other
Party hereunder, including, without limitation, trade secrets, technical
information, business information, sales information, marketing information,
customer-buying patterns, algorithms, 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 areas of law, and any
other information marked as “proprietary” or “confidential” at the time of
disclosure. Notwithstanding the foregoing, “Confidential Information”
shall not include any information that (a) was or has become publicly available
without restriction through no fault of the receiving Party or its employees or
agents; (b) is received without restriction from a third party that, to the best
knowledge of the receiving Party, did not have an obligation of confidentiality
to the disclosing Party; (c) was rightfully in possession of the receiving Party
without restriction prior to its disclosure by the other Party; or (d) was
independently developed by employees of the receiving Party that had no
knowledge of or access to such information, as evidenced by written records of
the receiving Party.
1.2 Contract Services shall mean
various software development and implementation services to be provided by
Rubicon as described in one or more Statement(s) of Work (“SOW”) that reference
this Agreement in a form substantially similar to that set forth in Exhibit A.
1.3 Day Rate shall mean the daily
rate at which Rubicon will provide services to ISA or ISA
Clients. The Day Rate for each type of service provided will be as
per the rate card set out in Exhibit C, such rates to be subject to annual
review by the Parties on the anniversary of this Agreement provided that such
rates may be reviewed on an ad hoc basis at any time should the Parties become
aware of specific information which impacts on the validity or feasibility of
the Day Rate.
1.4 Commission Rate shall mean the
commission rate which will be used to calculate any amount which Rubicon will
pay to ISA after the provision of Rubicon Offerings to ISA Clients as set forth
in Exhibit D, such rates to be subject to annual review by the Parties on the
anniversary of this Agreement provided that such rates may be reviewed on an ad
hoc basis at any time should the Parties become aware of specific information
which impacts on the validity or feasibility of the Commission
Rate.
1.5 Documentation shall mean the
printed and/or electronic materials relating to the Rubicon Offerings,
including, but not limited to, user’s manuals and technical manuals as may be
provided by Rubicon to ISA.
1.6 Due Diligence Services shall
have the meaning set forth in Section 3.3, below.
1.7 End User shall mean a party
that obtains a license to use the Rubicon Offerings from ISA or a customer of
ISA under the terms and conditions set forth herein.
1.8 Intellectual Property shall
mean any and all trade secrets, patents, copyrights, trademarks, service marks,
trade names, domain names, trade dress, URLs, brand features, know-how and
similar rights of any type under the laws of any applicable governmental
authority, including, without limitation, all applications and registrations
relating to any of the foregoing..
1.9 ISA Client shall mean:
(i) an entity to which Rubicon provides services pursuant to Section 3, below; and (ii) an entity
that ISA has consulted with before or during the Term regarding the provision of
goods or services.
1.10 Notice shall have the meaning
ascribed thereto in Section 11.5.
1.11 Parties shall mean ISA and
Rubicon.
1.12 Rubicon Offerings shall mean
(i) the software programs described in Exhibit B, (as may be updated
from time to time) in object code format, and including all corrections,
updates, modifications and enhancements to such software that may be provided to
ISA by Rubicon from time to time; and (ii) software development
services.
1.13 Term shall have the meaning
ascribed thereto in Section 6.1.
1.14 Share Subscription Agreement
shall mean the agreement in the agreed form between ISA and Rubicon
whereby ISA shall subscribe for shares in Rubicon.
2. ISA
RESELLER SERVICES.
2.1 Rubicon
hereby grants to ISA during the Term (as defined below) and subject to the
exclusions described in 2.4 below an exclusive,
non-transferable license in the United States to market, sell, use, display,
perform, sublicense and distribute the Rubicon Offerings, the Documentation and,
subject to Section 2.2,
any upgrades thereto, subject to the conditions set forth in this
Agreement. As used in this Section 2.1, the terms
“market,” “sale,” “sell,” “distribute,” and “sublicense” shall mean
the sale of a license having a term of at least one year to an End User pursuant
to which the End User may use, perform and display the Rubicon Offerings and the
Documentation. This license is granted to ISA for the marketing, sale
and distribution of the Rubicon Offerings and the Documentation to End Users for
their internal use only.
2.2
Rubicon hereby grants to ISA during the Term and subject to the exclusions
described in 2.4 below
an exclusive, non-transferable license in the United States to grant licenses to
use, display, perform and distribute the Rubicon Offerings and the Documentation
to other resellers, including, but not limited to, distributors, Original
Equipment Manufacturers, system integrators and Value-Added Resellers, for
further sale and distribution to End Users for their use as described above,
subject to the conditions set forth in this Agreement.
2.3 The
license grants described in Sections 2.1 and 2.2 shall include all upgrades
to the Rubicon Offerings and the Documentation. Rubicon shall promptly notify
ISA of each such upgrade to the Rubicon Offering and the Documentation which
will be available to ISA under this Agreement.
2.4 The
exclusive licenses described in Sections 2.1 and 2.2 shall not include customer
agreements, sales of Rubicon Offerings and/or Documentation which arise through
customer marketing and distribution arrangements which are in place between
Rubicon and third parties at the date hereof. Rubicon agrees not to
enter into any additional agreement to sell Rubicon Offerings or Documentation
or additional distribution arrangements with third parties in the United States
from the date hereof without the prior written approval of ISA, which approval
shall not be unreasonably withheld.
3. RUBICON
SERVICES.
3.1 Subject
to the terms and conditions of this Agreement, Rubicon shall provide the
Contract Services, as agreed between ISA to Rubicon in the relevant SOW, to
ISA’s reasonable satisfaction. The Contract Services shall be
performed at the facilities and location reasonably designated by ISA (with
appropriate agreements in place to ensure reasonable reimbursement to Rubicon of
out-of-pocket expenses). Upon written request of ISA, Rubicon shall
provide biweekly written reports describing the progress made in performing the
Contract Services since the preceding report, and the progress expected to be
made in the next succeeding period.
3.2 ISA may,
at any time, request reasonable additions, deletions, or revisions in the
Contract Services by delivering a change order to Rubicon. Upon
receipt of a change order from ISA, Rubicon shall notify ISA of any price
revisions which are associated with the change order and if ISA agree to the
revised charges, the parties shall proceed with the Contract Services as
revised. All such Contract Services shall be executed under the terms
and conditions of this Agreement and the applicable SOW (as revised by the
change order). If any change order causes an increase or decrease in
the cost of the Services to be performed or scheduled completion date or
expenses incurred or to be incurred by Rubicon, an equitable adjustment will be
made by mutual agreement.
3.3 From time
to time and as agreed between ISA and Rubicon, Rubicon shall provide due
diligence services regarding the software and other technology issues of
potential merger and acquisition, joint venture or other strategic partner
companies (a “Target Company”) that may be identified by ISA (the
“Due Diligence Services”). In connection with any such Due Diligence
Services, Rubicon agrees that it shall abide by the reasonable terms of any
third party confidentiality agreement that may be entered into by ISA with any
such Target Company on the same terms as are applicable to
ISA. Rubicon’s fees for such due diligence services (the “Due
Diligence Fees”) shall be at agreed upon rates which shall not exceed the Day
Rate. ISA agrees to reimburse Rubicon upon provision of valid
receipts for Rubicon’s reasonable out-of-pocket expenses incurred in the
provision of the Due Diligence Services.
4. COMMERCIAL
TERMS.
4.1 ISA Fees. In
consideration of the services set forth in Section 2, ISA will sell or market the
Rubicon Offerings at pre agreed list prices, and shall receive a commission on
the gross revenues paid for the Rubicon Offerings less VAT if applicable of the
Commission Rate; provided, however, that in the event that Rubicon proposes to
charge at other than the Day Rate for the software development the Parties shall
use all reasonable endeavours to agree an equitable adjustment to the Commission
Rate.
4.2 Rubicon Fees.
4.2.1 In
consideration of the Contract Services, Rubicon will receive payment as set
forth in an SOW of its undisputed invoices (or its pro rata share) that it has
submitted to ISA immediately following receipt of payment by ISA from the ISA
Client.
4.2.2 In
consideration of the Due Diligence Services, ISA shall pay to Rubicon the Due
Diligence Fees within 30 days of receipt from Rubicon of an invoice and any
previously requested supporting documentation, including time
charges.
4.2.3 In
addition to the payments set forth in sections 4.2.1 and 4.2.2, above, ISA will
pay Rubicon 30% of ISA’s profits (defined as gross revenues less costs directly
incurred in the generation of such revenues) on projects for which Rubicon has
provided Contract Services after ISA has recouped any directly attributable
start-up costs with respect to such project up to a cumulative maximum of
£100,000 of such costs associated with all such projects from the date of this
agreement.
4.3 Target
Revenues. ISA confirms that its current intention is to try
and procure that Rubicon’s total gross revenues less VAT if applicable relating
to the provision of services to ISA Clients or to clients referred to Rubicon by
ISA will exceed £1million per annum. The Parties acknowledge that any
failure by ISA to procure such revenues for Rubicon will not constitute a breach
of this Agreement and ISA will have no liability for any such failure or
otherwise in connection with this clause 4.3.
4.4 Payment terms. Each party
shall account to the other on a monthly basis in respect of all sales and
revenue received, and payments shall be made within 30 days of receipt of a
properly valid invoice.
4.5 Audits. Each Party
shall retain the financial records relating to all payments owed and/or paid
under this Agreement for a period of six years from the date such payment
obligation arose.
4.6 Purchase of Rubicon
Shares. This Agreement is conditional upon ISA and Rubicon
entering into the Share Subscription Agreement.
5. INTELLECTUAL
PROPERTY.
5.1 ISA’s Intellectual
Property. As between ISA and Rubicon, all right, title and
interest in and to Intellectual Property which is created by or provided by ISA,
including, without
limitation, as they may be part of or incorporated into any Contract Service or
otherwise used by Rubicon, all goodwill associated therewith and the copyright
and all other Intellectual Property rights inherent in or appurtenant to the
foregoing are and shall be and shall remain the sole property of
ISA. Rubicon acknowledges that neither it nor any other persons or
entities will by virtue of this Agreement acquire any ownership interest in the
Intellectual Property of ISA, or the Intellectual Property rights inherent in or
appurtenant to any of the foregoing, or any associated goodwill and that its
rights thereunder are strictly limited to those specifically granted in this
Agreement. Rubicon shall not contest ownership by ISA of any of the
foregoing. No right, license, release or other right is granted by
implication, estoppel or otherwise by ISA to Rubicon or any of Rubicon’s
affiliates except for the rights and licenses expressly granted under this
Agreement. Except for the rights and licenses expressly granted under
this Agreement, ISA reserves all rights to the Intellectual Property of ISA,
including, without limitation, translation rights, rights of modification and
rights to source code.
5.2 Works-for-hire.
5.2.1 As
regards Intellectual Property created by Rubicon, Rubicon acknowledges and
agrees that those Works, as defined below, shall belong exclusively to ISA
subject to payment in accordance with clause 4.2. Works means,
collectively, any work product (of any type), software, developments, processes,
improvements, and all works of authorship, in whole or in part, whether
patentable or not and whether copyrightable or not created as services provided
directly to ISA or on behalf of ISA by Rubicon, which (i) are conceived or made
by Rubicon, its employees, contractors, consultants or agents during the Term
and relate directly to the business in which ISA and Rubicon(during the Term by
ISA) are, had been or were proposing to be engaged in; or (ii) are conceived or
made by Rubicon, its employees, contractors, consultants or agents during or
after the Term and are made through the use of any ISA Confidential Information,
or which result from any work performed by Rubicon, its employees, contractors,
consultants or agents for ISA. It is agreed that the terms under which Rubicon
agrees to work with ISA, including the Day Rate, reflect and will reflect any
value or potential value of Intellectual Property created by Rubicon on behalf
of ISA.
5.2.2 Rubicon
shall make full and prompt disclosure to ISA of all Works as they are made
(whether or not conceived or made jointly with others). To the extent
copyrightable, all Works shall be deemed to be “works for hire” and ISA shall be
deemed to be the author thereof under the U.S. Copyright Act. With
respect to Works that do not constitute “works for hire,” Rubicon, its
employees, contractors, consultants and agents do hereby assign to ISA or its
designee all of their respective right, title and interest in and to such Works
and all related patents, patent applications, copyrights and copyright
applications and does hereby agree that these obligations are binding upon their
respective assigns, executors, administrators and other legal
representatives. Rubicon, its employees, contractors, consultants and
agents do hereby waive all claims to moral rights to the
Works. During the Term and continuing thereafter, Rubicon does hereby
agree to take all such further reasonable actions on its own behalf and with
respect to its employees, contractors, consultants and agents, including without
limitation, the execution and delivery of copyright applications, patent
applications, declarations, oaths, formal assignments, assignments of priority
rights, and powers of attorney, which ISA may deem necessary or desirable in
order to protect its rights and interests in and to the Works. If ISA
is unable, after reasonable effort, to secure any necessary signature on any
such documents, any executive officer of ISA shall be entitled as agent and
attorney-in-fact to execute such documents.
5.3 Rubicon’s Intellectual
Property. As between ISA and Rubicon, all right, title and
interest in and to the Rubicon Offerings and, subject to the provisions of
Section 5.2, any other Intellectual Property of Rubicon, including, without limitation, as
used by Rubicon or ISA hereunder, all goodwill associated therewith and the
copyright and all other Intellectual Property rights inherent in or appurtenant
to the foregoing are and shall be the sole property of
Rubicon. ISA acknowledges that, except as otherwise set
forth herein, neither it nor any other persons or entities will by virtue of
this Agreement acquire any ownership interest in such Intellectual Property, or
the Intellectual Property rights inherent in or appurtenant to any of the
foregoing, or any associated goodwill and that its rights thereunder are
strictly limited to those specifically granted in this Agreement. ISA
shall not contest ownership by Rubicon of any of the foregoing. No
license, release or other right is granted by implication, estoppel or otherwise
by Rubicon to ISA or any of ISA’s affiliates except for the rights and licenses
expressly granted under this Agreement. Except for the rights and licenses
expressly granted herein, Rubicon reserves all rights to the Rubicon Service
Offerings, including, without limitation, translation rights, rights of
modification and rights to source code.
6. TERM
AND TERMINATION; WITHDRAWAL.
6.1 Term. Unless terminated
sooner, the term of this Agreement shall begin on the Effective Date and
continue for three (3) years thereafter (the “Initial Term”) and shall
automatically renew for additional one (1) year terms on the terms and
conditions set forth herein (each a “Renewal Term” and collectively, the “Term”)
unless either party gives the other Party Notice of its intention to terminate
this Agreement ninety (90) days before the end of the Initial Term or Renewal
Term, if any.
6.2 Termination.
6.2.1 For Cause. Either
Party may serve Notice to the other Party to terminate this Agreement
immediately in the event any material breach of a material provision of this
Agreement by such other Party remains uncured 30 days in the case of a breach of
a payment obligation, or 45 days for all other material breaches, after notice
of such breach was received by such other Party.
6.2.2 For
Bankruptcy. Either Party may terminate this Agreement
immediately upon Notice to the other Party in the event the other Party (a)
permanently ceases operations, (b) becomes or is declared insolvent or bankrupt,
(c) is the subject of any proceeding related to its liquidation or insolvency
(whether voluntary or involuntary) that is not dismissed within 90 calendar days
or (d) makes an assignment for the benefit of creditors.
6.2.3 For Contesting Intellectual Property
Rights. Either Party may terminate this Agreement upon ten
Business Day’s Notice to the other Party in the event the other Party contests
or challenges to a material degree any of the other Party’s Intellectual
Property rights referred to in Sections 5.1, and 5.3,
respectively.
7. NON-COMPETITION.
7.1 During
the period beginning on the Effective Date and ending on the later of (i) the
end of the Initial Term and (ii) the date falling two years after completion of
the most recent services provided by Rubicon under clause 7 (the
“Non-Competition Period”) and in the ISA Geographic Area, as defined below,
Rubicon agrees not to in any capacity, engage or have a financial interest in
any ISA Competing Business, as defined below, or provide managerial,
supervisory, administrative, or financial services relating to any ISA Competing
Business, including making available any information or funding to any such ISA
Competing Business. Further, during the Non-Competition Period,
Rubicon shall not solicit any employee of ISA or any employee of any ISA
Client. If a court determines that the foregoing restrictions are too
broad or otherwise unreasonable under applicable law, including with respect to
time or space, the court is hereby requested and authorized by the Parties to
revise the foregoing restrictions to include the maximum restrictions allowable
under applicable law. Rubicon acknowledges, however, that the Parties
have negotiated this Section and that the time limitations, the limitation on
activities and the geographic limitations are reasonable in light of the
circumstances pertaining to ISA and this transaction. “ISA Competing Business”
means any person or entity of any type whatsoever engaged in the business of
providing data centre audit and data centre optimization
services. “ISA Geographic Area” means worldwide.
7.2 During
the period beginning on the Effective Date and ending on the later of (i) the
end of the Initial Term and (ii) the date falling two years after completion of
the most recent services provided by Rubicon under clause 7 (the
“Non-Competition Period”) and in the Rubicon Geographic Area, as defined below,
ISA agrees not to in any capacity, engage or have a financial interest in any
Rubicon Competing Business, as defined below, or provide managerial,
supervisory, administrative, or financial services relating to any Rubicon
Competing Business, including making available any information or funding to any
such Rubicon Competing Business. Further, during the Non-Competition
Period, ISA shall not solicit any employee of Rubicon or any employee of any
Rubicon Client. If a court determines that the foregoing restrictions
are too broad or otherwise unreasonable under applicable law, including with
respect to time or space, the court is hereby requested and authorized by the
Parties to revise the foregoing restrictions to include the maximum restrictions
allowable under applicable law. ISA acknowledges, however, that the
Parties have negotiated this Section and that the time limitations, the
limitation on activities and the geographic limitations are reasonable in light
of the circumstances pertaining to Rubicon and this transaction. “Rubicon
Competing Business” means any person or entity of any type whatsoever engaged in
the business of providing software development services for
clients. “Rubicon Geographic Area” means Europe.
7.3 In the
event that ISA wishes to carry out any software development work of any nature
during the Non-Competition Period, it will notify Rubicon of the same and allow
Rubicon the opportunity to pitch for such work.
8. CONFIDENTIALITY.
8.1 Confidentiality
Obligations. Except as permitted elsewhere under this
Agreement, each Party agrees (a) to take Reasonable Steps (as defined below) to
receive and maintain the Confidential Information of the other Party in
confidence, (b) to take Reasonable Steps (as defined below) not to disclose such
Confidential Information to any third parties other than with the written
consent of the disclosing Party and (c) to promptly notify the other Party upon
learning of any law, rule, regulation or court order that purports to compel
disclosure of any Confidential Information of the other Party and to reasonably
cooperate with the other Party in the exercise of the other Party’s right to
protect the confidentiality of such Confidential Information, including, but not
limited to, seeking to dispute the cause of such disclosure and/or to receive
confidential treatment for the Confidential Information disclosed as a result of
such cause. Neither Party shall use all or any part of the
Confidential Information of the other Party for any purpose other than to
perform its obligations, or the exercise of such Party’s rights and licenses,
under this Agreement. Each Party shall (i) limit access to any
Confidential Information of the other Party received by it to its employees,
contractors, consultants and agents who have a need-to-know in connection with
the performance of such Party’s obligations, or the exercise of such Party’s
rights, under this Agreement; and (ii) advise such employees, contractors,
consultants and agents of the confidential nature thereof and of the obligations
set forth in this Agreement and similarly bind them in
writing. Each Party shall be responsible for any breaches of
the obligations of confidentiality and restricted use set forth herein by any
employee, contractor, consultant or agent to whom such Party disclosed any
Confidential Information of the other Party. As used herein,
“Reasonable Steps” means using at least the same degree of care that the
receiving Party uses to protect its own Confidential Information, and, in any
event, no less than reasonable care.
8.2 Exclusions. Nothing contained
herein shall prevent a Party from disclosing Confidential Information pursuant
to any applicable law or by a governmental order, decree, regulation, rule,
process or court order; provided, however, that such Party complies with the
notice provisions of Section 8.1(c) to the extent permissible
under applicable laws, rules, regulations or court orders. Such
disclosure shall not of itself alter the status of such information hereunder
for all other purposes as Confidential Information.
8.3 Provisions of this Agreement.
Each Party agrees that the provisions of this Agreement shall be treated as
Confidential Information and that no reference shall be made thereto without the
prior written consent of the other Party (which consent shall not be
unreasonably withheld) except (a) to its accountants, banks, financing
sources, lawyers and other professional advisors, provided that such parties
undertake in writing (or are otherwise bound by rules of professional conduct)
to keep such information strictly confidential, (b) in connection with the
enforcement of this Agreement, (c) in connection with a merger, acquisition
or proposed merger or acquisition, or (d) pursuant to joint press releases
prepared in good faith or (e) as permitted under Section 8.2. The Parties
will consult with each other, in advance, with regard to the terms of all
proposed press releases, public announcements and other public statements with
respect to the transactions contemplated hereby.
8.4 Termination. Upon
termination of this Agreement, all Confidential Information shall be returned to
the disclosing Party or destroyed unless otherwise specified or permitted
elsewhere under this Agreement or as otherwise mutually agreed upon by the
Parties. The confidentiality obligations contained in this Section
8 shall survive
termination of this Agreement for a period of three years.
8.5 Injunction. Each
Party acknowledges and agrees that the provisions of this Section 8 are reasonable and
necessary to protect the other Party’s interests in its Confidential
Information, that any breach of the provisions of this Section 8 may result in
irreparable harm to such other Party, and in such event the exact amount of
damages is now and will be difficult to ascertain and the remedies at law for
any such failure would not be reasonable or adequate. Accordingly, in
the event of any breach or threatened breach of the provisions of this Section
8 by a Party hereto, the
other Party, in addition to any other relief available to it at law, in equity
or otherwise, shall be entitled to seek temporary and permanent injunctive
relief restraining the breaching Party from engaging in and/or continuing such
conduct, without the necessity of proving actual damages or posting a bond or
other security. Further, the prevailing Party in any such injunctive
action shall be entitled to payment from the other Party of the reasonable
attorneys’ fees and costs incurred in such proceeding.
9. REPRESENTATIONS
AND WARRANTIES.
9.1 By ISA. ISA hereby represents,
covenants and warrants to Rubicon that:
9.1.1 It has
the corporate power to enter into this Agreement;
9.1.2 It has
the right to perform its obligations this Agreement;
9.1.3 When
executed and delivered by it, this Agreement will constitute a legal, valid and
binding obligation of it, enforceable against it in accordance with this
Agreement’s provisions;
9.1.4 ISA shall
perform all services required to be performed by ISA under this Agreement in a
professional manner and all ISA personnel assigned to provide such services
shall be duly qualified to provide such services; and
9.1.5 While at
Rubicon’s facilities, all ISA employees, contractors, consultants and agents
shall observe and follow Rubicon’s reasonable work rules, policies and standards
as the same are communicated to ISA or such persons in writing, including,
without limitation, those rules, policies and standards of Rubicon relating to
security of and access to its facilities and to its telephone systems,
electronic mail systems and computer systems. ISA shall cooperate
with Rubicon in promptly removing from the Rubicon premises any of such persons
who violates any of the foregoing work rules, policies or standards of
Rubicon.
9.2 By Rubicon. Rubicon
hereby represents, covenants and warrants to ISA that:
9.2.1 It has
the corporate power to enter into this Agreement;
9.2.2 It has
the right to perform its obligations this Agreement;
9.2.3 When
executed and delivered by it, this Agreement will constitute a legal, valid and
binding obligation of it, enforceable against it in accordance with this
Agreement’s provisions;
9.2.4 Rubicon
shall perform all services required to be performed by Rubicon under this
Agreement in a professional manner and all Rubicon personnel assigned to provide
such services shall be duly qualified to provide such services; and
9.2.5 While at
ISA’s facilities, all Rubicon employees, contractors, consultants and agents
shall observe and follow ISA’s reasonable work rules, policies and standards as
the same are communicated to Rubicon or such persons in writing, including,
without limitation, those rules, policies and standards of ISA relating to
security of and access to its facilities and to its telephone systems,
electronic mail systems and computer systems. Rubicon shall cooperate
with ISA in promptly removing from the ISA premises any of such persons who
violates any of the foregoing work rules, policies or standards of
ISA.
10. DISCLAIMER
OF WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION.
10.1 Disclaimer of
Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
ISA AND RUBICON HEREBY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
WITH RESPECT TO ANY AND ALL ISA AND RUBICON SERVICES RESPECTIVELY, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
10.2 Limitation of
Liability. EXCEPT IN CONNECTION WITH A BREACH BY EITHER PARTY
OF SECTION 8, NEITHER
PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY,
PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT,
HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ISA SHALL NOT BE
LIABLE FOR ANY LOSS OF DATA, OR ANY INTERRUPTION OF OR DELAY IN PROVIDING THE
SERVICES. EXCEPT IN CONNECTION WITH A BREACH BY EITHER PARTY OF
SECTION 8, EACH PARTY’S
LIABILITY FOR DAMAGES HEREUNDER (OTHER THAN IN RESPECT OF ANY CLAIM FOR MONIES
DUE) SHALL NOT EXCEED £200,000.
10.3 Indemnification by
Rubicon. Rubicon shall indemnify and hold harmless ISA and its
officers, directors, employees and agents from and against any and all losses,
claims, damages, liabilities, obligations, judgments, awards, costs, expenses
(including reasonable attorneys’ fees) and disbursements, including without
limitation, the costs, expenses and disbursements, as and when incurred, of
preparing or defending any action, suit, proceeding or investigation asserted by
a third party (“Losses”), caused by, based upon, arising out of or in connection
with a claim by a third party that the Rubicon Offerings infringe a 3rd party’s
exiting intellectual property rights or due to the gross negligence,
recklessness or intentional misconduct on the part of Rubicon or its affiliates
or its officers, directors, employees, agents, consultants or
users.
10.4 Indemnification by
ISA. ISA shall indemnify and hold harmless Rubicon and its
officers, directors, employees and agents from and against any and all losses,
claims, damages, liabilities, obligations, judgments, awards, costs, expenses
(including reasonable attorneys’ fees) and disbursements, including without
limitation, the costs, expenses and disbursements, as and when incurred, of
preparing or defending any action, suit, proceeding or investigation asserted by
a third party (“Losses”), caused by, based upon, arising out of or in connection
with ISA’s role in the provision of the Rubicon Offerings or the gross
negligence, recklessness or intentional misconduct on the part of ISA or its
affiliates or its officers, directors, employees, agents, consultants or
users.
10.5 Indemnitee Obligations. Each person seeking to
be reimbursed, indemnified, defended and/or held harmless under Sections 10.3 or 10.4 (each, an “Indemnitee”)
shall (a) provide the Party obliged to indemnify such Indemnitee with prompt
written notice of any claim, suit, demand or other action for which such
Indemnitee seeks to be reimbursed, indemnified, defended or held harmless (each,
a “Claim”), which notice shall include a reasonable identification of the
alleged facts giving rise to such Claim; (b) grant such Party reasonable
authority and control over the defense and settlement of any such Claim; and (c)
reasonably cooperate with such Party and its agents in defense of any such
Claim, at such Party’s cost. Each Indemnitee shall have the right to
participate in the defense of any Claim for which such Indemnitee seeks to be
reimbursed, indemnified, defended or held harmless, by using attorneys of such
Indemnitee’s choice, at such Indemnitee’s expense. Notwithstanding
anything to the contrary herein, any settlement of a Claim for which any
Indemnitee seeks to be reimbursed, indemnified, defended or held harmless under
this Section 10 shall be
subject to the prior written approval of such Indemnitee, such approval not to
be unreasonably withheld, conditioned or delayed.
10.6 Essential Part of
Bargain. The Parties acknowledge that the disclaimers and
limitations set forth in this Section 10 are an essential element of
this Agreement between the Parties and that the Parties would not have entered
into this Agreement without such disclaimers and limitations.
11. MISCELLANEOUS.
11.1 Governing Law and
Jurisdiction. This Agreement shall be governed by and
interpreted under the laws of the State of Florida, USA,. The state and federal
courts in the jurisdiction in which Palm City, Florida is located shall have
non- exclusive jurisdiction for the purposes of adjudicating any controversy or
claim between the parties concerning any breach or alleged breach of this
Agreement or performance or nonperformance of any obligation under this
Agreement, save that the parties agree that any dispute or claim concerning
either clause 8 Confidentiality or clause 5 Intellectual Property may be raised
in any appropriate jurisdiction where the breach or alleged breach has
occurred.
11.2 No
Assignment. Neither Party shall transfer, assign or cede any
rights or delegate any obligations hereunder, in whole or in part, whether
voluntarily or by operation of law, without the prior written consent of the
other Party, which consent may be withheld at the other Party’s reasonable
business discretion; provided, however, that in connection with a merger, sale
or transfer of substantially all of the assets or stock of one of the
Parties that Party may provide for the assignee to be bound by the
terms hereof. This Agreement shall inure to the benefit of, and shall be binding
upon, the Parties and their respective successors and permitted
assigns.
11.3 Good Faith. The
Parties undertake to act in good faith, consistent with their respective rights
and obligations set forth in this Agreement.
11.4 Independent Contractors. In
connection with this Agreement, each Party is an independent contractor. This
Agreement does not, and shall not be construed to, create an employer-employee,
agency, joint venture or partnership relationship between the
Parties. Neither Party shall have any authority to act for or to bind
the other Party in any way, to alter any of the provisions of any of the other
Party’s standard forms of invoices, sales agreements, warranties or otherwise,
to warrant or to execute agreements on behalf of the other, or to represent that
it is in any way responsible for the acts, debts, liabilities or omissions of
the other Party.
11.5 Notices. All notices,
reports, payments and other communications required or permitted to be given
under this Agreement (each, a “Notice”) shall be in writing and shall be given
either by personal delivery against a signed receipt, by express delivery using
an internationally recognized express courier, or by email (with confirmation of
receipt). All Notices shall be properly addressed as follows, or to such other
addresses as may be specified in a Notice given hereunder:
If to
ISA:
with a copy to:
Attn:
Xxxxxx
Xxxxxxxx Attn:
Xxxxxx X. Xxxxx, Esq.
0000 XX
00xx
Xx., Xxxxxxx
Xxxxx & Xxxxx, P.C.
Xxxx
Xxxx, Xxxxxxx
00000 0000
Xxxxxx Xx., 0xx
Xxxxx
xxx_xxxxxxxx@xxx-xxx.xxx Phila.,
PA 19103
xxxxxx@xxxxxx.xxx
If to
Rubicon:
with a copy to:
Attn:
Xxxxxxxx
Xxxxxxx Attn:
Xxxxxx Xxxxx
Rubicon
House
Rubicon House
Guildford
Road
Guildford Road
West End,
Surrey GU24
9PW Xxxx
Xxx, Xxxxxx, XX00 0XX
A Notice
shall be deemed to be effective upon personal delivery or, if sent via overnight
delivery, upon receipt thereof. A Notice sent via email is deemed effective on
the same day (or if such day is not a Business Day, then on the next succeeding
Business Day) if the confirmation that such email was received by the other
Party is received before 5:00 p.m. prevailing Eastern time and on the next day
(or if such day is not a Business Day, then on the next succeeding Business Day)
if the confirmation that such email was received by the other Party is received
on or after 5:00 p.m. prevailing Eastern time.
11.6 Amendment or
Modification. No subsequent amendment, modification or waiver
of any of the provisions of this Agreement shall be effective unless in writing
and signed by the Parties.
11.7 Entire
Agreement. This Agreement sets out the entire agreement
between the Parties with respect to the subject matter of this Agreement and
supersedes all prior agreements, proposals, arrangements and communications,
whether oral or written, with respect to the subject matter hereof.
11.8 Severability. If
any provision of this Agreement is held by a tribunal of competent jurisdiction
to be illegal, invalid, or otherwise unenforceable in any relevant jurisdiction,
then to the fullest extent permitted by law (a) the same shall not affect the
other provisions of this Agreement, (b) such provision shall be deemed modified
to the extent necessary in the tribunal’s opinion to render such provision
enforceable, and the rights and obligations of the Parties shall be construed
and enforced accordingly, preserving to the fullest extent the intent and
agreements of the Parties set forth herein and (c) such finding of invalidity,
illegality or unenforceability shall not affect the validity, legality or
enforceability of such provision in any other relevant
jurisdiction.
11.9 No Waiver. Failure
to enforce any provision of this Agreement is not a waiver of future enforcement
of that or any other provision. No provision of this Agreement will
be deemed waived and no breach excused unless such waiver or excuse is in
writing and signed by the Party against whom enforcement of such waiver or
excuse is sought.
11.10 Survival. Sections
5, 7, 8, 10 and 11; any payment obligations of
the Parties hereunder accrued prior to the date of termination; and any other
provision herein expressly surviving termination or necessary to interpret the
rights and obligations of the Parties in connection with the termination of this
Agreement will survive the termination of this Agreement.
11.11 No Third Party Beneficiaries.
Except as set forth in Sections 10.3 and 10.4, nothing in this
Agreement is intended to confer benefits, rights or remedies unto any person or
entity other than the Parties and their permitted successors and assigns.
Without limiting the generality of the foregoing, the clients, customers,
shareholders or End Users shall not be deemed to be third party beneficiaries of
this Agreement or have any other contractual relationship with ISA by reason of
this Agreement.
11.12 Captions and
Construction. The headings appearing at the beginning of the
Sections contained in this Agreement have been inserted for identification and
reference purposes only and shall not be used to determine the construction or
interpretation of this Agreement. The nomenclature of the defined
terms in this Agreement shall only be used for the construction of this
Agreement, and are not to be used for any other purpose, including, but not
limited to, interpretation for accounting purposes. The parties acknowledge that
both ISA and Rubicon participated in the drafting of this Agreement and agree
that any rule of law or legal decision that may or would require interpretation
of any alleged ambiguities in this Agreement against the party that drafted it
has no application and is expressly waived.
11.13 Further
Assurances. Each Party shall perform such acts, execute and
deliver such instruments and documents, and do all such other things as may be
reasonably necessary to accomplish the transactions contemplated in this
Agreement.
11.14 Language. This
Agreement is in the English language only, which language shall be controlling
in all respects, and all versions hereof in any other language hereof shall be
for accommodation only and shall not be binding upon the Parties. All
communications and notices to be made or given pursuant to this Agreement shall
be in the English language. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. Unless
otherwise expressly provided, the word “including” does not limit the preceding
word or terms.
11.15 Force
Majeure. Neither Party shall be held to be in breach of this
Agreement by reason of a force majeure event, including, but not limited to, act
of God, delay in transportation, fire, flood, earthquake, storm, war, act of a
public enemy, civil commotion or any law, rule, regulation, order or other
action by any public authority or any other matter reasonably beyond a Party’s
control (a “Force Majeure Event”). To the extent failure to perform is caused by
such a force majeure event, such Party shall be excused from performance
hereunder so long as such event continues to prevent such performance, and
provided the non-performing Party takes all reasonable steps to resume full
performance.
11.16 Compliance with
Laws. Each Party shall comply with all prevailing laws, rules
and regulations and obtain all necessary approvals, consents and permits
required by the applicable agencies of the government of the jurisdictions that
apply to its activities or obligations under this Agreement.
11.17 Public
Announcements. Any public announcement or similar publicity
with respect to this Agreement or the transactions contemplated hereby shall be
issued only after consultation with the other party hereto regarding the content
of any such announcement or publicity. The parties recognize that, as
publicly traded companies, such consultations will be constrained by applicable
requirements relating to the disclosure of material information on the part of
such party under applicable securities laws.
11.18 Execution in Counterparts,
Facsimiles. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument. This Agreement shall become
binding when any one or more counterparts hereof, individually or taken
together, bear the signatures of both Parties hereto. For the
purposes hereof, a facsimile copy of this Agreement, including the signature
pages hereto, shall be deemed an original.
IN
WITNESS WHEREOF, the Parties to this Agreement by their duly authorized
representatives have executed this Agreement as of the date first written
above.
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Rubicon
Software Group plc
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By: /s/ Xxxxxx X.
Xxxxxxxx
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By /s/ Xxxxxxxx X.
Xxxxxxx:
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Name: Xxxxxx
X. Xxxxxxxx
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Name:
Xxxxxxxx X. Xxxxxxx
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Title: President
and CEO
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Title: CEO
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