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EXHIBIT 10.20
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement (this "Agreement"), dated and
effective as of February 7, 2000 (the "Effective Date"), is by and between
Optimum Logistics Ltd. ("Optimum") and XxxXxxxx.xxx, Inc. ("CheMatch") (Optimum
and CheMatch each sometimes a "Party" and collectively, the "Parties").
W I T N E S S E T H:
WHEREAS, CheMatch offers news and information relevant to the chemical
industry and owns and operates an internet-based exchange service (the "CheMatch
System") through which users can execute negotiated trades of bulk petrochemical
products; and
WHEREAS, Optimum has created and operates an internet-based logistics
operating system (the "TransLink System") through which users can procure
transportation and other logistics services for simple and complex shipments of
bulk chemicals from a variety of service providers, as well as manage and
monitor such shipments through all phases of the supply chain; and
WHEREAS, Optimum intends to expand the multicarrier and multimodal
functionality of the TransLink System to provide users with a broader selection
of logistics service providers in order to support customer requirements; and
WHEREAS, Optimum and CheMatch believe that the services offered to their
respective users through Optimum's TransLink System and CheMatch's CheMatch
System are complimentary; and
WHEREAS, Optimum and CheMatch believe that each could expand its user
base by electronically linking and integrating the TransLink System and CheMatch
System internet access sites and cross-promoting use of their respective
services to their respective existing and future users; and
WHEREAS, Optimum and CheMatch desire to form a strategic alliance to
integrate the TransLink System and CheMatch System internet access sites and to
cross-promote the use of their respective services to their respective existing
and future users on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Optimum and CheMatch agree as
follows:
1. STRATEGIC ALLIANCE
(a) Alliance. Subject to, and in accordance with, the terms and
conditions of this Agreement, Optimum and CheMatch hereby establish a strategic
alliance (the "Alliance")
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pursuant to which each agrees to exclusively promote the other in its normal
marketing activities as the preferred provider of the services offered by the
other as further described in Section 5(a), and to establish on a non-exclusive
basis revenue-sharing arrangements and click-through system integration between
their respective websites, all as more fully set forth herein.
(b) Alliance Liaisons. Optimum and CheMatch will each appoint one (1)
person to serve as its Alliance liaison (the "Alliance Liaisons"). The Alliance
Liaisons will serve as contact persons for their respective Parties with respect
to matters relating to the Alliance and will manage the relationship established
between the Parties by this Agreement. Either Party may at any time and in its
sole discretion, remove its respective Alliance Liaison and appoint a different
person to that position. Upon appointment of a new Alliance Liaison, the Party
making such appointment shall notify the other Party of such appointment in
writing within five (5) business days. The initial Alliance Liaisons are as
follows:
For Optimum:
Xxxxxxx X. Xxxxxxxx
Optimum Logistics Ltd.
0000 X. Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
Fax Number: (000) 000-0000
Email Address: xxx@xxxxx.xxx
For CheMatch:
Xxx Xxxxx
XxxXxxxx.xxx, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
Fax Number: (000) 000-0000
Email Address: xxxxxx@xxxxxxxx.xxx
(c) Quarterly Meetings. The executive officers, their designee or
Alliance Liaisons of Optimum and CheMatch will meet on a quarterly basis to
review and discuss Alliance operations, performance, marketing and strategy,
including, but not limited to, the milestone dates set forth in Section 6 of
this Agreement and the Standards (as defined in Section 6) and the entities to
be listed on Exhibit B and Exhibit C. Unless otherwise agreed to by both
Parties, the first such quarterly meeting shall be held in April, 2000, with
subsequent meetings to be held each July, October, January and April thereafter
during the Term (as defined in Section 2 below) of this Agreement. Such meetings
shall be held on a date and at a time and location to be agreed upon by the
Parties not less than ten (10) business days before each meeting. At each such
meeting, the Parties shall appoint one (1) person to keep and prepare minutes of
the proceedings, which minutes shall reflect all agreements reached and all
actions taken or directed to be taken by the Parties at such meeting. Within
five (5) business days after the conclusion of each such
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meeting, the Party responsible for preparing the minutes of such meeting shall
circulate a draft of such minutes to the other Party for review and comment. The
Parties shall then work together in good faith to revise such minutes to their
mutual satisfaction. Upon completion of such revisions, each Party shall execute
two (2) copies of such minutes, retain one of such executed copies for its
records and deliver the other to the other Party. No agreement reached or action
taken or directed to be taken at any such meeting shall be binding on the
Parties unless the minutes of such meeting have been executed by both Parties.
2. TERM
(a) Initial Term. Unless earlier terminated in accordance with the
provisions of Section 12 hereof, the initial term of this Agreement (the
"Initial Term") is three (3) years, commencing on the Effective Date and
extending through the third (3rd) anniversary of that date, after which this
Agreement shall terminate unless extended pursuant to Section 2(b) below (the
Initial Term together with all such extensions, the "Term").
(b) Extension of Initial Term.
(i) On or before the first anniversary of the Effective Date, the
Parties shall attempt in good faith to develop a mutually agreeable set
of performance criteria to be achieved by the Parties under this
Agreement by specified dates, which performance criteria and dates shall
be attached hereto as Exhibit A. Exhibit A shall set forth the
performance criteria that must be met in order to extend the Initial
Term for one (1) year following the three-year period specified in
Section 2(a) above. In the event that such performance criteria are met
by both Parties on or before the dates set forth therein, the Initial
Term shall be automatically extended for an additional one (1) year
period. Thereafter, the Term shall be automatically extended for
successive one (1) year periods unless either Party provides the other
written notice of its desire not to extend the Term at least one hundred
twenty (120) days prior to the then-scheduled termination thereof.
(ii) In the event that one or more of the performance criteria
set forth on Exhibit A have not been achieved on or before the
applicable date or dates set forth therein by either Party but the
Parties nevertheless desire to extend the Initial Term, the Parties may
do so by executing a written amendment to this Agreement extending the
Initial Term not less than ninety (90) days prior to then-scheduled
termination thereof.
(iii) In the event that the Parties are unable to agree on the
set of performance criteria and dates to be attached hereto as Exhibit A
on or before the first anniversary of the Effective Date, the Initial
Term and this Agreement shall terminate on the date that is six (6)
months after the first anniversary of the Effective Date, unless
otherwise agreed in writing by the Parties at least ninety (90) days
prior to such date.
3. EQUITY INVESTMENT
(a) CheMatch Investment in Optimum. If, during the Initial Term of this
Agreement, Optimum conducts a private offering of any of its securities, whether
debt or equity, for an
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aggregate amount of at least five million dollars ($5,000,000), and such
offering is extended to investors other than, or in addition to, financial
institutions, venture capital funds, private equity funds, affiliates of Optimum
and employees of Optimum (such investors hereinafter, "Strategic Investors"),
Optimum shall offer CheMatch the opportunity to invest at least one million
dollars ($1,000,000) in the first such offering (but not in any subsequent
offering) made by Optimum during the Initial Term on the same financial terms
offered to other Strategic Investors in such offering; provided, however, that
CheMatch's participation in such offering shall be limited to a maximum of ten
percent (10%) of such offering, unless Optimum otherwise agrees in writing.
(b) Investment in Competitors. During the Initial Term, neither Party
shall make any investment of any kind, whether debt, equity or convertible to
equity, in any direct competitor of the other Party.
(c) Competing Systems. During the Term, neither Party, nor any of their
respective affiliates, shall build, establish, offer or maintain a system that
would constitute a "direct competitor" of the other Party.
(d) "Direct Competitors". For purposes of this Agreement, "direct
competitor" of CheMatch shall include all internet based trading platforms for
electronic trading of bulk petrochemicals and polymers among third parties, and
"direct competitor" of Optimum shall include all integrated logistics operations
and tracking systems for bulk liquid shipments.
4. REVENUE SHARING
(a) TransLink Participants. During the Term of this Agreement, each time
an entity represented by a registered user of the TransLink System (each such
entity and all of its affiliates collectively, a "TransLink Participant")
obtains a spot contract with a firm price for transportation via one or more
modes (including tanker, barge or tank container) as to a product, subject to
customary terms and conditions ( a "Freight Fixture"), through use of the
TransLink System and such TransLink Participant subsequently utilizes a
hyperlink connection or other electronic means of direct data or information
exchange established between the TransLink System and the CheMatch System
pursuant to this Agreement to access the CheMatch System and execute a trade as
to such product using the CheMatch System that is to be completed using the
transportation secured by such Freight Fixture, CheMatch shall pay Optimum
twenty percent (20%) of the total commission revenue earned by CheMatch from
such TransLink Participant in respect of such product trade, regardless of
whether such TransLink Participant is a buyer or a seller in such product trade;
provided, however, that the maximum amount payable by CheMatch to Optimum under
this Section 4(a) during any one contract year during the Term of this Agreement
shall be five million dollars ($5,000,000). Once the maximum yearly payment of
five million dollars ($5,000,000) by CheMatch to Optimum has been reached for a
particular contract year, CheMatch shall have no further payment obligations to
Optimum under this Section 4(a) during such contract year; provided, however,
that all other terms and conditions of this Agreement shall remain in full force
and effect. All amounts payable under this Section 4(a) shall be due and payable
monthly in arrears. Payments due under this Section 4(a) for each month during
which this Agreement remains in effect shall be due and payable on or before the
twentieth (20th) day of the next succeeding month.
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(b) CheMatch Participants. During the Term of this Agreement, each time
an entity represented by a registered user of the CheMatch System (each such
entity and all of its affiliates collectively, a "CheMatch Participant")
executes a trade as to a product, whether as buyer or seller, through use of the
CheMatch System and such CheMatch Participant subsequently utilizes a hyperlink
connection or other electronic means of direct data or information exchange
established between the CheMatch System and the TransLink System pursuant to
this Agreement to access the TransLink System and obtain a Freight Fixture for
the fulfillment of such product trade using the TransLink System, Optimum shall
pay CheMatch twenty percent (20%) of the total commission or other transaction
fee revenues, if any, earned by Optimum in respect of a Freight Fixture related
directly to the fulfillment of such product trade and obtained through use of
the TransLink System; provided, however, that the maximum amount payable by
Optimum to CheMatch under this Section 4(b) during any one contract year during
the Term of this Agreement shall be five million dollars ($5,000,000). Once the
maximum yearly payment of five million dollars ($5,000,000) by Optimum to
CheMatch has been reached for a particular contract year, Optimum shall have no
further payment obligations to CheMatch under this Section 4(b) during such
contract year; provided, however, that all other terms and conditions of this
Agreement shall remain in full force and effect. All amounts payable under this
Section 4(b) shall be due and payable monthly in arrears. Payments due under
this Section 4(b) for each month during which this Agreement remains in effect
shall be due and payable on or before the twentieth (20th) day of the next
succeeding month.
(c) Verification. For purposes of verifying the amounts payable by the
Parties to each other under this Section 4, each Party shall have the right to
retain an outside firm to audit and evaluate the payments and payment
obligations of the other Party for any contract year or part thereof during
which this Agreement is in effect, and if, in a Party's sole discretion and at
its own cost, it elects to do so, such Party shall notify the other Party
thereof in writing within one hundred twenty (120) days of the end of such
contract year. The other Party shall allow such firm to have reasonable access
to its books and records and shall cause its independent accountants to make
their work papers relating to such payments and payment obligations reasonably
available to such firm; provided, however, that such outside firm shall first
execute a confidentiality agreement in a form reasonably satisfactory to such
other Party pursuant to which such outside firm agrees to limit its use of the
information contained in the books and records of such other Party and the work
papers of such other Party's independent accountants to the conduct of such
audit and evaluation and to refrain from disclosing any such information to any
third party except as may be required by law. If a Party fails to deliver such
notice within such period, the payments made by the other Party during such
contract year shall be deemed to have been finally accepted by such Party as
payment in full of all payment obligations of the other Party under Section 4(a)
or (b), as applicable, for such contract year.
(d) Disputes. If, as a result of the analysis of an outside firm, a
Party (the "Challenging Party") wishes to challenge the payments or payment
obligations of the other Party (the "Non-Challenging Party") required by Section
4(a) or (b), as applicable, or any of the information upon which they are based,
then the Challenging Party shall make its challenge by providing the
Non-Challenging Party written notice (the "Challenge Notice"), which Challenge
Notice shall set forth in reasonable detail the basis for the challenge. Both
Parties shall use their
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reasonable best efforts to resolve matters raised in the Challenge Notice, but
if the Parties cannot resolve their dispute within ten (10) days after receipt
of the Challenge Notice by the Non-Challenging Party, the challenge described in
such Challenge Notice shall be preserved for subsequent resolution, as described
below, by the Parties or by one of the eight largest accounting firms in the
United States that has not issued an audit report with respect to the financial
statements for either Party during the then-preceding two (2) years and is not
then under current engagement to perform audit work by either Party (the
"Independent Accountants"). The Challenging Party shall, at any time after the
expiration of such ten-day period, provide the Non-Challenging Party with the
opportunity to choose one (1) out of not less than two (2) accounting firms
designated by the Challenging Party that could qualify as Independent
Accountants. The Non-Challenging Party will have five (5) days to select one of
the firms so designated, and such firm shall be the Independent Accountants.
Failing such selection, the Challenging Party will designate one of the firms it
proposed to be the Independent Accountants. Both Parties shall execute such
reasonable and customary engagement letters as the Independent Accountants may
request. In any event, the Parties may mutually agree to select any accounting
firm to be the Independent Accountants.
Within ten (10) days after the appointment of the Independent
Accountants, each Party shall submit to the other and to the Independent
Accountants in writing its position with respect to the challenge set forth in
the Challenge Notice and its proposed resolution of the dispute, together with
such supporting documentation as they deem necessary. Within thirty (30) days
after receiving such position statements, the Independent Accountants shall
select one of the two proposed resolutions to the dispute (but not itself
propose another resolution) that it determines, in its sole discretion, to be
the most reasonable proposal in light of the provisions of this Agreement. Such
selection shall be final and binding on both Parties. The fees and expenses of
the Independent Accountants shall be borne by the Party whose proposal is not
selected. Both Parties jointly and severally exculpate and release the
Independent Accountants from any liability with respect to any decision or
judgment that the Independent Accountants may take or commit during the course
of their activities described above.
(e) "Contract Year". For purposes of this Agreement, "contract year"
shall mean a period beginning on the Effective Date or any anniversary thereof
and extending through the day immediately preceding the next succeeding
anniversary of the Effective Date.
5. JOINT MARKETING
(a) Cross-Promotion. The Parties hereby agree to cooperate in good faith
to promote the Alliance and the use of their respective services offered through
the TransLink System and the CheMatch System by third parties. To that end,
Optimum will prominently display on the TransLink System website (the "TransLink
Site") hyperlinks to the CheMatch System website, which is currently located at
XXX.XXXXXXXX.XXX (the "CheMatch Site"), which hyperlinks shall conform to the
requirements set forth in the Standards (as defined in Subsection 6(a)(i)).
Likewise, CheMatch will prominently display on the CheMatch Site hyperlinks to
the TransLink Site, which hyperlinks shall conform to the requirements set forth
in the Standards. Additionally, Optimum shall exclusively promote CheMatch as
the preferred Independent Trading Platform (as defined below) for electronic
trading of bulk petrochemicals
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among third parties in substantially all of Optimum's promotional materials,
sales calls and other promotions in connection with the TransLink System which
refer to such trading platforms, and CheMatch shall exclusively promote Optimum
as the preferred provider of integrated logistics services for bulk liquid
petrochemical shipments in substantially all of CheMatch's promotional
materials, sales calls and other promotions in connection with the CheMatch
System which refer to such integrated logistics services. Each Party shall
obtain the written approval of the other Party prior to releasing any sales or
promotional materials or other publicity concerning the alliance, the terms of
this Agreement or the other Party's service offerings, which approval shall not
be unreasonably withheld. For the purposes of this Agreement, Independent
Trading Platform shall mean a trading platform which is not (i) jointly or
solely operated by any of the top ten (10) petrochemical companies; (ii) offered
under the brand name of any of the top ten (10) petrochemical companies; or
(iii) jointly or solely operated by any of the top ten (10) consumers or
producers of petrochemicals. The determination of a company's rank shall be made
on the basis of the consolidated international revenue of the company for the
last fiscal year.
(b) Optimum Strategic Prospects. The Parties agree that Exhibit B
contains a list of entities with whom CheMatch currently has an ongoing
commercial relationship and with whom Optimum would like to develop a regular
commercial relationship (each an "Optimum Strategic Prospect"). CheMatch agrees
to make good faith efforts to assist Optimum in establishing such a commercial
relationship with the Optimum Strategic Prospects. For each Optimum Strategic
Prospect which CheMatch successfully refers to Optimum prior to the expiration
of Exhibit B as provided below, such referral to be conclusively presumed by the
execution of a signed services contract with respect to the use of the TransLink
System between Optimum and such Optimum Strategic Prospect, Optimum shall pay
CheMatch twenty percent (20%) of the gross revenue earned and actually received
from such Optimum Strategic Prospect under such contract for one (1) year
following the execution of such contract. Notwithstanding any other provision of
this Agreement, Exhibit B shall expire and be of no further force or effect on
the first anniversary of the Effective Date unless otherwise agreed in writing
prior to such expiration date; provided, however, that, upon expiration of
Exhibit B, Optimum's payment obligations under this Section 5(b) in respect of
any Optimum Strategic Prospects successfully referred to Optimum by CheMatch (as
evidenced by the execution of a signed services contract with respect to the use
of the TransLink System between Optimum and such Optimum Strategic Prospect)
prior to such expiration date shall survive such expiration of Exhibit B; and
provided, further, that all other provisions of this Agreement shall remain in
full force and effect following such expiration of Exhibit B.
(c) CheMatch Strategic Prospects. The Parties agree that Exhibit C
contains a list of entities with whom Optimum currently has an ongoing
commercial relationship and with whom CheMatch would like to develop a regular
commercial relationship (each a "CheMatch Strategic Prospect"). Optimum agrees
to make good faith efforts to assist CheMatch in establishing such a commercial
relationship with the CheMatch Strategic Prospects. For each CheMatch Strategic
Prospect which Optimum successfully refers to CheMatch prior to the expiration
of Exhibit C as provided below, such referral to be conclusively presumed by the
execution of a signed services contract with respect to the use of the CheMatch
System between CheMatch and such CheMatch Strategic Prospect, CheMatch shall pay
Optimum twenty percent (20%) of the gross revenue
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earned and actually received from such CheMatch Strategic Prospect under such
contract for one (1) year following the execution of such contract.
Notwithstanding any other provision of this Agreement, Exhibit C shall expire
and be of no further force or effect on the first anniversary of the Effective
Date unless otherwise agreed in writing prior to such expiration date; provided,
however, that, upon expiration of Exhibit C, CheMatch's payment obligations
under this Section 5(c) in respect of any CheMatch Strategic Prospects
successfully referred to CheMatch by Optimum (as evidenced by the execution of a
signed services contract with respect to the use of the CheMatch System between
CheMatch and such CheMatch Strategic Prospect) prior to such expiration date
shall survive such expiration of Exhibit C; and provided, further, that all
other provisions of this Agreement shall remain in full force and effect
following such expiration of Exhibit C.
6. SYSTEMS INTEGRATION
(a) Site Establishment.
(i) On or before April 30, 2000, Optimum shall have established
the TransLink Site on a host server under Optimum's control, which site
shall substantially conform to the requirements for websites set forth
on Exhibit D attached hereto (the "Standards"), be accessible to all
TransLink Participants and CheMatch Participants and be fully
operational for all of its intended purposes, including, but not limited
to, providing CheMatch Participants the services set forth in Section
6(c) below; provided, however, that the services set forth in
Subsections 6(c)(vii) and (viii) need not be available to TransLink
Participants or CheMatch Participants until August 31, 2000.
(ii) On or before April 30, 2000, CheMatch shall have established
the CheMatch Site on a host server under CheMatch's control, which site
shall substantially conform to the requirements for websites set forth
in the Standards, be accessible to all CheMatch Participants and
TransLink Participants and be fully operational for all of its intended
purposes, including, but not limited to, providing TransLink
Participants the services set forth in Section 6(d) below.
(b) Site Linking.
(i) On or before May 15, 2000, the TransLink Site shall be linked
to the CheMatch Site by means of a hyperlink which uses the CheMatch
logo as the activation point and which shall be located on the Home
page, all pages on which strategic alliances or partnerships are
described, if any, the log-on page if different from the Home page, the
splash page if different from the Home page, and the tool bar in the
"Shipments View" (as defined in the Standards) of the TransLink Site.
Such hyperlink shall conform to the hyperlink requirements set forth in
the Standards and enable TransLink Participants to access the CheMatch
Site by clicking on the CheMatch logo; provided, however, that once a
TransLink Participant has reached the CheMatch Site, either directly, or
through use of the hyperlink from the TransLink Site, such TransLink
Participant shall only have access to the services available on the
CheMatch System and set forth in Section 6(d) below if such TransLink
Participant is authorized to use the CheMatch System pursuant
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to a user agreement executed between CheMatch and such TransLink
Participant (each such TransLink Participant, an "Authorized TransLink
Participant").
(ii) On or before May 15, 2000, the CheMatch Site shall be linked
to the TransLink Site by means of a hyperlink which uses the TransLink
logo as the activation point and which shall be located on the Home
page, all pages on which strategic alliances or partnerships are
described, if any, the log-on page if different from the Home page, the
splash page if different from the Home page, and the tool bar of the
[name of page where CheMatch Participants conduct trades] of the
CheMatch Site. Such hyperlink shall conform to hyperlink requirements
set forth in the Standards and enable CheMatch Participants to access
the TransLink Site by clicking on the TransLink logo; provided, however,
that once a CheMatch Participant has reached the TransLink Site, either
directly, or through use of the hyperlink from the CheMatch Site, such
CheMatch Participant shall only have access to the services available on
the TransLink System and set forth in Section 6(c) below if such
CheMatch Participant is authorized to use the TransLink System pursuant
to a user agreement executed between Optimum and such CheMatch
Participant (each such CheMatch Participant, an "Authorized CheMatch
Participant").
(c) Optimum Services. Optimum will offer to Authorized CheMatch
Participants the services set forth below in Subsections 6(c)(i)-(vi) on and
after April 30, 2000 and the services set forth below in Subsections 6(c)(vii)
and (viii) on and after August 31, 2000:
(i) Nominations for transportation, storage or other services to
be provided to Authorized CheMatch Participants by service providers
under pre-existing contracts between Authorized CheMatch Participants
and such service providers;
(ii) Customs brokering and related documentation;
(iii) Freight forwarding and related documentation;
(iv) Cargo surveying and related documentation;
(v) Terminaling and/or storage of bulk liquids;
(vi) Inventory management and tracking;
(vii) Freight Fixtures for bulk multimodal transportation
(including transportation by parcel tanker, product tanker, tank
container, rail car or barge) of liquids traded by Authorized CheMatch
Participants, regardless of whether such Authorized CheMatch
Participants have traded such liquids on the CheMatch System; and
(viii) Indications of freight costs for bulk multimodal
transportation (including transportation by parcel tanker, product
tanker, tank container, rail car or barge) of liquids traded by
Authorized CheMatch Participants.
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Authorized CheMatch Participants will have access to the same services
provided via the TransLink System to other TransLink users regardless of whether
they enter the TransLink Site via a hyperlink from the CheMatch Site or directly
from any other web location. Optimum shall retain sole discretion with respect
to the establishment of pricing policies and terms and conditions of use of the
TransLink System; provided, however, that Optimum shall apply all such pricing
policies and terms and conditions of use to Authorized CheMatch Participants
without regard to whether they enter the TransLink Site via a hyperlink from the
CheMatch Site or directly. Notwithstanding the foregoing or any other provision
of this Agreement, Optimum may (but shall not be obligated to) offer pricing or
terms and conditions of use to Authorized CheMatch Participants which are more
favorable than those offered to other TransLink users.
The Standards set forth how the services listed in Subsections
6(c)(i)-(viii) shall be accessed by Authorized CheMatch Participants who elect
to enter the TransLink Site via a hyperlink from the CheMatch Site, including
access pathways.
(d) CheMatch Services. CheMatch will offer the following services to
Authorized TransLink Participants through the CheMatch Site, whether accessed
directly or through the hyperlink from the TransLink Site:
(i) Third party electronic trading of all products traded on the
CheMatch System;
(ii) Except as prohibited by contractual agreements with
information and/or content providers, news services, at fees no less
favorable than those customarily charged to CheMatch news service
customers; and
Authorized TransLink Participants will have access to the same services
provided via the CheMatch System to other CheMatch users regardless of whether
they enter the CheMatch Site via a hyperlink from the TransLink Site or directly
from any other web location. CheMatch shall retain sole discretion with respect
to the establishment of pricing policies and terms and conditions of use of the
CheMatch System; provided, however, that CheMatch shall apply all such pricing
policies and terms and conditions of use to Authorized TransLink Participants
without regard to whether they enter the CheMatch Site via a hyperlink from the
TransLink Site or directly. Notwithstanding the foregoing or any other provision
of this Agreement, CheMatch may (but shall not be obligated to) offer pricing or
terms and conditions of use to Authorized TransLink Participants which are more
favorable than those offered to other CheMatch users.
The Standards set forth how such services shall be accessed by
Authorized TransLink Participants who elect to enter the CheMatch site via a
hyperlink from the TransLink Site, including access pathways.
(e) Site Maintenance, Data Back-up and Disaster Recovery. Commencing on
May 15, 2000, and continuing thereafter so long as this Agreement remains in
effect, the Parties shall maintain their respective websites, including data
back-up and disaster recovery systems, in accordance with the maintenance
procedures and requirements set forth in the Standards.
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(f) Costs. Each of the Parties shall pay all of their own costs and
expenses incurred in connection with this Agreement and adapting and linking
their respective systems and websites to those of the other, including, but not
limited to, costs and expenses incurred for computer hardware or software,
whether purchased from third parties or developed internally, system or website
development or modifications, consulting services, marketing materials or
services and legal services.
7. DATA SHARING
(a) Data. For purposes of this Agreement, "Data" shall mean all
information related to a Party's customers, prospective customers, website users
and their activities on such Party's website.
(b) Data Sharing and Ownership. Each Party shall own and shall be
entitled to use and otherwise exploit, in its sole discretion, all Data which
such Party has acquired (i) independently of the other Party, and (ii) without
breach of any confidentiality agreement or other obligation of secrecy owed by
such Party or any other person or entity to the other Party. Neither Party
grants any rights or interest it may have in its Data to the other Party, and
neither Party is obligated to share with the other Party any of its Data or
other information, other than as expressly provided in this Agreement. Each
Party hereby grants a nonexclusive, nontransferable license to the other Party
to use for the other Party's internal business operations such of its Data that
is transmitted to the other Party through any program or function that enables
Data to be shared as contemplated by the Standards as the other Party has not
already independently acquired without breach of any confidentiality agreement
or other obligation of secrecy owed by the other Party or any other person or
entity to the originating Party.
(c) Limits on Data Collection Devices. Unless otherwise mutually agreed
in writing, neither Party shall include or permit to be used any mechanism,
program, "bot," "cookie," "spider" or other device which enables the collection
of Data or other information during or with respect to a customer visit to or
activities on the other Party's website.
8. REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties of Both Parties. As an inducement to
the other to enter into this Agreement, each Party represents and warrants to
the other the following:
(i) Organization, Corporate Power, Etc. Each Party (A) is duly
organized, validly existing and in good standing in the case of Optimum,
under the laws of Bermuda, under which it is chartered, and, in the case
of CheMatch, under the laws of the state Delaware, under which it is
incorporated, (B) has the corporate power and authority to carry on its
business as it is now being conducted, and (C) is, or shall be at the
Effective Date, duly licensed or qualified to do business in each
jurisdiction in which the nature of the business conducted by it makes
such licensing or qualification necessary;
(ii) Authority of Parties. Each Party has full power and
authority to execute, deliver and perform this Agreement. The execution,
delivery and performance of this
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Agreement has been duly authorized and approved by all necessary
corporate action on the part of both Parties and does not require any
further authorization or consent on the part of either Party;
(iii) Binding Obligation. This Agreement has been duly executed
and delivered by each Party and constitutes the valid and binding
obligation of each Party, enforceable against each Party in accordance
with its respective terms (except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship and other laws relating to or affecting creditors'
rights generally and by general equity principles);
(iv) No Litigation To each Party's respective knowledge, there
are no lawsuits, claims, suits, proceedings or investigations pending or
threatened against it which question the legality or propriety of the
transactions contemplated by this Agreement;
(v) Consents and Approvals No consent, approval, authorization,
action or order of, or declaration, filing or registration with, or
notice to, any court, administrative agency, governmental body or other
third party is required to be made or obtained by either Party in
connection with the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or the performance
of either Party's obligations hereunder;
(vi) Intellectual Property. Each of the Parties either owns or
has sufficient rights in its respective intellectual property,
including, without limitation, copyrights, trademarks, design rights,
know-how and patents, to be used in the performance of its respective
obligations under this Agreement;
(vii) Year 2000. All systems, equipment, software and other items
used by either Party in carrying out its respective obligations under
this Agreement (including any related data or interfaces) shall be "Year
2000 Compliant." "Year 2000 Compliant" means that a device shall be able
to accurately process date data (including, but not limited to,
calculating, comparing, and sequencing) from, into, and between the
twentieth (20th) and twenty-first (21st) centuries, including leap year
calculations;
(viii) Statements True and Correct. The representations and
warranties of the Parties in this Agreement are true and correct in all
material respects.
(b) Disclaimer of All Other Warranties. THE WARRANTIES MADE BY THE
PARTIES IN THIS SECTION 8 ARE IN LIEU OF, AND EACH PARTY FOR ITSELF DISCLAIMS
ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR
IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO INFORMATION, INFORMATIONAL CONTENT,
ITS SERVICES, OR ITS RESPECTIVE WEBSITE, INCLUDING ANY AND ALL IMPLIED
WARRANTIES OR CONDITIONS OF QUALITY, SUITABILITY, TITLE, NONINFRINGEMENT,
MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER
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OR NOT THE WARRANTING PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS
OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW,
BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING.
9. CONFIDENTIALITY
(a) Obligations of Parties. Each Party understands and acknowledges that
so long as this Agreement remains in effect, the Parties will have access to
certain Confidential Information (as defined in Section 9(b) below) concerning
their respective businesses that is a valuable and unique asset of the
respective Parties upon which their respective businesses are dependent. To
insure the continued secrecy of this Confidential Information, and in
consideration of the services provided to each other hereunder, each Party
agrees not to disclose such information of the other Party or permit such
information of the other Party to be disclosed to any third party while this
Agreement remains in effect or at any time thereafter, without the prior written
consent of the other Party. Each Party further understands and acknowledges that
if this Agreement is terminated for any reason, neither Party shall take or
retain, without prior written authorization from the other Party, originals or
copies of any records, papers, programs, computer software, documents, fee
books, files, or any other matter of whatever nature which is, contains or may
facilitate access to Confidential Information. The Parties agree that there
shall be a rebuttable presumption that a Party's disclosure to a third party of
Confidential Information of the other Party will not result in irreparable
damage or harm to such other Party and that monetary damages will be adequate to
compensate such other Party for any damage or harm resulting from such
disclosure. Any Party who seeks injunctive or other equitable relief against the
other Party in respect of any disclosure of the Party's Confidential Information
to a third party by such other Party shall be required to prove, by clear and
convincing evidence, that such disclosure will result in irreparable damage or
harm to the Party and that monetary damages will not be adequate to compensate
the Party for any damage or harm resulting from such disclosure. Subject to
Section 9(c) below, a Party may only disclose Confidential Information when
disclosure by such Party is required under applicable law or by a valid subpoena
or other court or governmental order, decree, regulation or rule; provided,
however, that if disclosure is required under this provision, such Party shall
advise the other Party of the requirement to disclose Confidential Information
prior to such disclosure and as soon as reasonably practicable after such Party
becomes aware of such required disclosure or aware that an action has been taken
seeking such disclosure unless such notice is legally prohibited; and provided
further, that upon the request of the other Party, such Party agrees to
reasonably cooperate with and at the expense of the other Party in any
reasonable and lawful actions which the other Party takes to resist such
disclosure, limit the information to be disclosed or limit the extent to which
the information so disclosed may be used or made available to third parties.
(b) "Confidential Information". For purposes of this Agreement and
except as provided in Section 9(c) below, "Confidential Information" shall
include, without limitation, any and all secrets or confidential technology,
intellectual property rights, proprietary information, customer or supplier
lists, trade secrets, records, notes, memoranda, Data (as defined in Section
7(a) above), ideas, processes, methods, techniques, systems, formulas, patent
applications, models, devices, programs, computer software, writings, research,
personnel information,
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customer or supplier information, plans or any other information of whatever
nature in the possession or control of a Party that is not generally known or
available to members of the general public, including any copies, worksheets, or
extracts from any of the above.
(c) Exceptions. The term "Confidential Information" of a Party shall not
include any information which (i) is or becomes generally available to and known
by the public (other than as a result of an impermissible disclosure directly or
indirectly by the other Party), (ii) is or becomes available to the other Party
on a non-confidential basis from a source other than the Party, provided, that
such source is not and was not bound by a confidentiality agreement with, or
other obligation of secrecy to, the Party, or (iii) has been or is hereafter
independently acquired by the other Party without violating any confidentiality
agreement with, or other obligation to, the Party.
10. INDEMNITY
(a) Indemnification by Optimum.
(i) Optimum shall indemnify, defend and hold CheMatch and the
CheMatch Indemnified Parties (as defined in Subsection 10(a)(ii) below)
harmless from and against, and in respect of, any and all claims by, and
liabilities to, third parties including governmental entities
("Third-Party Claims") asserted against or incurred by, and any and all
expenses (including all reasonable fees and expenses of counsel, travel
costs and other out-of-pocket costs) in connection with pending or
threatened litigation or other proceedings regarding such Third-Party
Claims ("Expenses") incurred by, CheMatch or any of the CheMatch
Indemnified Parties that arise out of or relate to:
(A) any actual or alleged patent, copyright or trademark
or other intellectual property right infringement, or
misappropriation or violation of any other proprietary right (an
"Infringement"), to the extent that the Infringement directly
relates to content, products or functions provided by Optimum and
not to any Third Party Claims directly relating to jointly
approved content, designs or specifications or to content,
specifications or designs solely prepared by CheMatch;
(B) any material breach of any representation, warranty or
obligation under this Agreement by Optimum, not materially
contributed to by CheMatch; or
(C) use of the TransLink Site or the TransLink System by
any third party.
(ii) The "CheMatch Indemnified Parties" shall mean and include:
(A) CheMatch's affiliates;
(B) the respective directors, officers, agents and
employees of and counsel to CheMatch and its affiliates;
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(C) each other person, if any, controlling CheMatch or any
of its affiliates; and
(D) the successors, assigns, heirs and personal
representatives of any of the foregoing.
(iii) Expenses shall be reimbursed when and as incurred promptly
upon submission of statements to Optimum by CheMatch or any of the
CheMatch Indemnified Parties.
(b) Indemnification by CheMatch.
(i) CheMatch shall indemnify, defend and hold Optimum and the
Optimum Indemnified Parties (as defined in Subsection 10(b)(ii) below)
harmless from and against, and in respect of, any and all Third-Party
Claims asserted against or incurred by, and any and all Expenses
incurred by, Optimum or any of the Optimum Indemnified Parties that
arise out of or relate to:
(A) any actual or alleged patent, copyright or trademark
or other intellectual property right infringement, or
misappropriation or violation of any other proprietary right (an
"Infringement"), to the extent that the Infringement directly
relates to content, products or functions provided by CheMatch
and not to any Third Party Claims directly relating to jointly
approved content, designs or specifications or to content,
specifications or designs solely prepared by Optimum;
(B) any material breach of any representation, warranty or
obligation under this Agreement by CheMatch, not materially
contributed to by Optimum; or
(C) use of the CheMatch Site or the CheMatch System by any
third party.
(ii) The "Optimum Indemnified Parties" shall mean and include:
(A) Optimum's affiliates;
(B) the respective directors, officers, agents and
employees of and counsel to Optimum and its affiliates;
(C) each other person, if any, controlling Optimum or any
of its affiliates; and
(D) the successors, assigns, heirs and personal
representatives of any of the foregoing.
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(iii) Expenses shall be reimbursed when and as incurred promptly
upon submission of statements to CheMatch by Optimum or any of the
Optimum Indemnified Parties.
(c) Cross Indemnification In respect of any intellectual property that
the Parties agree shall be jointly owned, each Party shall indemnify and hold
the other, the Optimum Indemnified Parties and the CheMatch Indemnified Parties
harmless from and against, and in respect of, any Third-Party Claims asserted
against or incurred by, and any and all Expenses incurred by either Party or any
of the Optimum Indemnified Parties and the CheMatch Indemnified Parties that
arise out of or relate to any Infringement to the extent that each Party shall
bear its pro-rata share, based on the percentage of ownership of the
intellectual property which is the subject of controversy, of the costs related
to any such Third Party Claim.
(d) Notice of Claims for Indemnification. If any third party shall make
any written claim or commence any arbitration proceeding or suit against any one
or more of Optimum or the Optimum Indemnified Parties or CheMatch or the
CheMatch Indemnified Parties (each an "Indemnified Person") with respect to
which an Indemnified Person intends to make a claim for indemnification against
Optimum under Section 10(a), or against CheMatch under Section 10(b) (as the
case may be, the "Indemnifying Party"), the Indemnified Person shall promptly
(but in no event more than ten (10) days after learning of such claim) give
written notice to the Indemnifying Party of such Third-Party Claim and the
provisions of Sections 10(e) and (f) shall apply; provided, however, that any
failure to provide the foregoing notice on a timely basis shall not relieve the
Indemnifying Party of its obligations hereunder except to the extent that it is
prejudiced or otherwise damaged thereby.
(e) Control of Proceedings.
(i) the Indemnifying Party shall have twenty (20) business days
after receipt of the notice referred to in Section 10(d) to notify the
Indemnified Person that it elects to conduct and control the defense of
such claim, proceeding or suit. If the Indemnifying Party does not give
the foregoing notice, the Indemnified Person shall have the right to
defend, contest, settle or compromise such claim, proceeding or suit in
the exercise of its exclusive discretion, subject to the provisions of
Section 10(f), and the Indemnifying Party shall, upon request from any
Indemnified Person, promptly pay to such Indemnified Person in
accordance with the other terms of this Section 10 the amount of any
Third-Party Claim resulting from the Indemnifying Person's liability to
the third-party claimant and all related Expenses.
(ii) If the Indemnifying Party gives the foregoing notice, it
shall have the right to undertake, conduct and control, through counsel
reasonably acceptable to the Indemnified Person, and at the Indemnifying
Party's sole expense, the conduct and settlement of such claim,
proceeding or suit, and the Indemnified Person shall cooperate with the
Indemnifying Party in connection therewith; provided, however, that
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(A) the Indemnifying Party shall not thereby permit any
lien, encumbrance or other adverse legal or equitable charge to
thereafter attach to any asset of the Indemnified Person;
(B) the Indemnifying Party shall not thereby permit any
injunction against the Indemnified Person, except for injunctions
that prohibit continuing Infringements;
(C) the Indemnifying Party shall permit the Indemnified
Person and counsel chosen by the Indemnified Person and
reasonably acceptable to the Indemnifying Party to monitor such
conduct or settlement and shall provide the Indemnified Person
and such counsel with such information regarding such claim,
proceeding or suit as either of them may reasonably request
(which request may be general or specific), but the fees and
expenses of such counsel shall be borne by the Indemnified
Person, unless (1) the Indemnifying Party and the Indemnified
Person shall have mutually agreed to the retention of such
counsel, or (2) the named parties to any such claim, proceeding
or suit include the Indemnified Person and the Indemnifying
Party, and in the reasonable opinion of counsel to the
Indemnified Person, representation of both parties by the same
counsel would be inappropriate due to actual or likely conflicts
of interest between the Indemnified Person and the Indemnifying
Party, in either of which cases the reasonable fees and
disbursements of counsel for such Indemnified Person shall be
reimbursed by the Indemnifying Party to the Indemnified Person if
the Indemnifying Party is ultimately held liable, or if the
Indemnifying Party is able to recover such fees and disbursements
where the Indemnified Party is not so able.
(iii) In no event shall the Indemnifying Party, without the prior
written consent of the Indemnified Person, settle or comprise any claim
or consent to the entry of any judgment that does not include as an
unconditional term thereof the giving by the claimant or the plaintiff
to the Indemnified Person a release from all liability (or covenant not
to xxx) in respect of such claim.
(iv) If the Indemnifying Party shall not have undertaken the
conduct and control of the defense of any claim, suit or proceeding as
provided above, the Indemnifying Party shall nevertheless be entitled
through counsel chosen by the Indemnifying Party and reasonably
acceptable to the Indemnified Person to monitor the conduct or
settlement of such claim by the Indemnified Person, and the Indemnified
Person shall provide the Indemnifying Party and such counsel with such
information regarding such action or suit as either of them may
reasonably request (which request may be general or specific), but all
costs and Expenses incurred in connection with such monitoring shall be
borne by the Indemnifying Party, unless the Indemnified Party is able to
recover such costs and Expenses where the Indemnifying Party is not so
able.
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(f) Settlement of Third-Party Claims by the Indemnified Person.
(i) Provided that the Indemnifying Party is contesting a claim,
suit or proceeding in good faith, the Indemnified Person shall not pay
or settle any such claim, proceeding or suit. Notwithstanding the
foregoing, the Indemnified Person shall have the right to pay or settle
any such claim, proceeding or suit while the Indemnifying Party is
contesting such claim, proceeding or suit in good faith; provided,
however, that in such event, the Indemnified Person shall waive any
right to indemnity therefor by the Indemnifying Party, and no amount in
respect thereof shall be claimed as a Third-Party Claim or Expense under
this Section 10.
(ii) If the Indemnifying Party shall not have undertaken the
conduct and control of the defense of any claim, suit or proceeding as
provided above, the Indemnified Person, on not less than thirty (30)
days prior written notice to the Indemnifying Party, may make settlement
(including payment in full) of such claim, and such settlement shall be
binding upon the Indemnified Person and the Indemnifying Party, unless
within such 30-day period the Indemnifying Party shall have requested
the Indemnified Person to contest such claim at the expense of the
Indemnifying Party. In such event, the Indemnified Person shall promptly
comply with such request, and the Indemnifying Party shall have the
right to direct the defense of such claim or any litigation based
thereon subject to all of the conditions of this Section 10.
Notwithstanding anything in this Section 10 to the contrary, if the
Indemnified Person advises the Indemnifying Party that it has determined
to make settlement of a claim, the Indemnified Person shall have the
right to do so at its own cost and expense, without any requirement to
contest such claim at the request of the Indemnifying Party, but without
any right under the provisions of this Section 10 for indemnification by
the Indemnifying Party.
(iii) In no event shall the Indemnified Party pay or settle any
such claim, proceeding or suit on terms that:
(A) permit any lien, encumbrance or other adverse legal or
equitable charge to thereafter attach to any asset of the
Indemnifying Party; or
(B) permit any injunction against the Indemnifying Party,
except for injunctions that prohibit continuing Infringements.
(g) Further Requirements for Indemnification Except as may be expressly
provided otherwise in this Agreement, no Indemnifying Party shall be required to
defend or indemnify any Indemnified Person for any Third-Party Claims or
Expenses, to the extent that such Third-Party Claims or Expenses are finally
adjudged to have been caused by the negligence, gross negligence, or willful
misconduct of the Indemnified Person. Each Party agrees to cooperate with the
defense of a Third Party Claim and to take such actions as the Indemnifying
Party may reasonably request in order to reduce or eliminate exposure to a Third
Party Claim.
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11. LIMITATION OF LIABILITY; NO THIRD PARTY BENEFICIARIES
(a) Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, STATUTORY OR CONSEQUENTIAL
DAMAGES OR ANY MULTIPLE OF ACTUAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THAT PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
(b) No Third Party Beneficiaries. This Agreement does not confer upon
any person, and nothing expressed or referred to in this Agreement shall be
construed to give any person, other than the Parties to this Agreement, any
legal or equitable right, remedy, or claim under or with respect to this
Agreement or any provision of this Agreement, except and only to the extent
provided in Section 10 to the Optimum Indemnified Parties and the CheMatch
Indemnified Parties. This Agreement and all of its provisions and conditions are
otherwise for the sole and exclusive benefit of the Parties hereto and their
respective successors and assigns.
(c) Neither Party accepts any liability for or arising out of the
services offered or provided by the other Party.
12. TERMINATION
(a) By Agreement. This Agreement may be terminated at any time by the
written agreement of the Parties.
(b) Breach. This Agreement may be terminated by either Party upon thirty
(30) days written notice to the other in the event of a material breach of any
material provision of this Agreement which remains uncured at the expiration of
such thirty (30) days; provided, however, that only the non-breaching Party
shall have the right to terminate this Agreement under this Section 12(b); and
provided, further, that the failure of a Party to meet its obligations set forth
in Section 6 of this Agreement or in the Standards by the dates set forth
therein shall not constitute a material breach of a material provision of this
Agreement so long as such Party is diligently pursuing and continues to
diligently pursue fulfillment of such obligations.
13. INTELLECTUAL PROPERTY RIGHTS
(a) CheMatch hereby grants a non-exclusive, non-transferable, worldwide
license to Optimum to use CheMatch's trade names, logos and trademarks solely
for purposes of effecting the transactions contemplated by this Agreement,
subject to the prior written approval of CheMatch, which approval shall not be
unreasonably withheld or delayed. CheMatch may revoke this license by giving ten
(10) days written notice of revocation to Optimum. Optimum hereby grants a
non-exclusive, non-transferable, worldwide license to CheMatch to use Optimum's
trade names, logos and trademarks solely for purposes of effecting the
transactions contemplated by this Agreement, subject to the prior written
approval of Optimum, which approval shall not be unreasonably withheld or
delayed. Optimum may revoke this license by giving ten (10) days written notice
of revocation to CheMatch. Notwithstanding the foregoing,
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neither Party may use the other Party's marks in any manner that might be deemed
to create a unitary composite xxxx.
(b) Other than as expressly set forth in this Agreement, CheMatch shall
have no right to use the marks, trade names or other proprietary rights of
Optimum without the prior written approval of Optimum. Other than as expressly
set forth in this Agreement, Optimum shall have no right to use the marks, trade
names or other proprietary rights of CheMatch without the prior written approval
of CheMatch.
14. PUBLICITY
Neither Party shall make, without the approval of the other, any press
release or other public announcement concerning the Alliance or the transactions
contemplated by this Agreement, except to the extent that a Party is obligated
by law or the rules of any stock exchange to make such a press release or
announcement. In such case, the other Party shall be advised thereof, and the
Parties shall use their best efforts to cause a mutually agreeable release or
announcement to be issued. For the avoidance of doubt, the foregoing shall not
preclude communications or disclosures necessary to implement the provisions of
this Agreement or to comply with accounting and Securities and Exchange
Commission disclosure obligations.
15. GOVERNING LAW; JURISDICTION
(a) Governing Law. This Agreement shall be governed by, and in
accordance with, the internal laws of the State of New York, without giving
effect to the conflict of laws principles thereof.
(b) Jurisdiction. Each Party agrees (i) that any action, dispute or
proceeding relating to this Agreement shall be brought in the state district
courts of Xxxxxx County, Texas and freely submits to the jurisdiction of the
state district courts of Xxxxxx County, Texas, (ii) that it freely waives any
right to, and will not, oppose any such action or proceeding in the state
district courts of Xxxxxx County, Texas on the basis that the jurisdiction is
not a convenient forum, and (iii) not to oppose the enforcement against it in
any other jurisdiction of any judgement or order properly obtained from such a
Texas court.
16. NOTICES
All notices or other communications provided for or permitted to be
given under this Agreement shall be in writing and shall be given either by
depositing such writing in the United States mail, addressed to the recipient,
postage paid, and registered or certified with return receipt requested, by
delivering such writing to the recipient in person or by nationally recognized
courier. All notices or other communications to be sent to a Party under this
Agreement shall be sent to or made at the following addresses, or such other
address as the Parties may specify by notice to each other from time to time in
accordance herewith:
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If to Optimum, at the following address:
Optimum Logistics Ltd.
Attention: Xxxxxxx X. Xxxxxxxx
0000 X. Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
with a copy to:
Xxxxxx X. Xxxxx
Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
If to CheMatch, at the following address:
XxxXxxxx.xxx, Inc.
Attention: Xxx XxXxxxxxx
0000 Xxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
with a copy to:
Xxx Xxxxx
XxxXxxxx.xxx, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
A notice or other communication given under this Agreement shall be
effective upon receipt by the person to whom such notice was sent.
17. ARBITRATION
Except for disputes relating to the provisions of Section 4 of this
Agreement or to issues of proprietary rights, including, but not limited to,
intellectual property and confidentiality, any dispute not resolved by amicable
resolution will be governed exclusively and finally by arbitration. Such
arbitration will be conducted by the American Arbitration Association ("AAA") in
New York and will be initiated and conducted in accordance with the Commercial
Arbitration Rules ("Commercial Rules") of the AAA, including the AAA
Supplementary Procedures for Large Complex Commercial Disputes ("Complex
Procedures"), as such rules will be in effect on the date of delivery of a
demand for arbitration ("Demand"), except to the extent that such rules are
inconsistent with the provisions set forth herein. Notwithstanding the
foregoing, the Parties may agree in good faith that the Complex Procedures will
not apply in order to promote the efficient arbitration of disputes where the
nature of the dispute, including without limitation the amount in controversy,
does not justify the application of such procedures. The arbitration panel will
consist of three (3) arbitrators. Each Party will name an arbitrator
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within ten (10) days after the delivery of the Demand. The third arbitrator,
selected by the first two, will be a neutral participant, with no prior working
relationship with either Party. The arbitration shall be conducted on
consecutive business days until completed unless all Parties agree otherwise,
and the arbitrators shall use their best efforts to expedite the arbitration so
that the entire arbitration shall be completed within six (6) months of the
delivery of the Demand. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and
not state law, will be used to determine whether a dispute hereunder can be
resolved by arbitration. The Federal Rules of Evidence will apply in toto. The
arbitrators may enter a default decision against any Party who fails to
participate in the arbitration proceedings. The arbitrators shall have the
authority to award compensatory damages only and shall have no authority to
award incidental, consequential, exemplary or punitive damages. The award
rendered by the arbitrators will be final, binding and non-appealable, and
judgment upon such award may be entered by any court of competent jurisdiction.
18. MISCELLANEOUS
(a) No Partnership; Independent Contractors. Nothing contained in this
Agreement is intended or shall be construed to create any partnership, joint
venture, or association between the Parties, and any inferences to the contrary
are hereby expressly negated. The relationship of the Parties is and shall at
all times be solely that of independent contractors. No agency, employment or
any fiduciary relationship is created by this Agreement. Although the Parties
will, inter alia, link their websites, cross-promote their services and pay each
other a percentage of certain revenues under this Agreement, the Parties intend
that the Alliance formed by this Agreement is only in the nature of a referral
or broker arrangement. Neither Party shall do anything that has the effect of
creating an obligation by the other Party to a third party.
(b) Assignment. Neither this Agreement, nor any rights or obligations
arising from it, may be assigned, delegated, transferred or subcontracted by
either Party without the express written consent of the other, which will not be
unreasonably withheld or delayed. Notwithstanding the foregoing, either Party
may assign, delegate, transfer or sub-contract any of its rights or obligations
arising under this Agreement to an affiliate without obtaining the other's
express written consent; provided, however, that no such assignment, transfer,
delegation or sub-contract shall relieve such Party of its obligations under
this Agreement.
(c) Force Majeure. Neither Party shall be liable for damages and costs
to the other Party arising out of delays or failures to perform its obligations
under this Agreement if such delays or failures result from causes beyond its
reasonable control. Notice of any such delays or failures and explanation of
their causes must be given to the other within five (5) days of the occurrence.
(d) Entire Agreement. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the Parties, and there are no
warranties, representations or other agreements between the Parties in
connection with the subject matter hereof except as specifically set forth
herein or contemplated hereby. Except as otherwise provided herein, no
supplement, modification or waiver of this
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Agreement shall be binding unless it shall be specifically designated to be a
supplement, modification or waiver of this Agreement and shall be executed in
writing by both of the Parties.
(e) Waiver. No failure on the part of a Party hereto to exercise, and no
delay in its exercise of, any right, power or privilege hereunder shall operate
as a waiver thereof. No single or partial exercise by a Party of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
(f) Headings. The use of headings in this Agreement is for convenience
only and shall not affect the construction or interpretation of this Agreement.
(g) Exhibits. Each Exhibit referred to in this Agreement is a part of,
and hereby incorporated into, this Agreement. Any reference to "this Agreement"
shall be deemed to include the Exhibits hereto.
(h) Severability. If one or more of the provisions of this Agreement are
at any time found to be invalid by a court, tribunal or other forum of competent
jurisdiction, or otherwise rendered unenforceable, such decision shall not have
the effect of invalidating or voiding the remainder of this Agreement. This
Agreement shall be deemed amended by modifying or severing such provisions as
necessary to render it valid, legal and enforceable while preserving its intent,
or if that is not possible, by substituting another provision that is valid,
legal and enforceable which materially effectuates the Parties' intent. Any such
invalid or unenforceable provision or provisions shall be severable from this
Agreement, so that the validity or enforceability of the remaining provisions of
this Agreement, or the validity of the provision(s) in question in any other
jurisdiction, shall not be affected thereby.
(i) Bankruptcy. Each Party must notify the other if it becomes insolvent
or enters into any bankruptcy or insolvency proceedings.
(j) Survival. The provisions of Sections 7, 9 and 10 shall survive the
termination of this Agreement for whatever reason, subject to any applicable
statute of limitations and subject to any provisions contained in such sections.
(SIGNATURE PAGE FOLLOWS)
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EXECUTED to be effective as of the date first above written.
"OPTIMUM"
OPTIMUM LOGISTICS, LTD.
By: /s/ XXXXXX XXXXXXXXX
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
-------------------------------------
Title: Chief Executive Officer
------------------------------------
Date: February 7, 2000
------------------------------------
"CHEMATCH"
XXXXXXXX.XXX, INC.
By: /s/ XXXX X. XXXXXXXXXX
---------------------------------------
Name: Xxxx X. XxXxxxxxxx
-------------------------------------
Title: Chairman, President and Chief
Executive Officer
------------------------------------
Date: February 7, 2000
------------------------------------
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