EXHIBIT 10.1
MANDIFF SERVICE AGREEMENT
DATED JUNE 10, 2000
MANDIFF SERVICE AGREEMENT
This Mandiff Services Agreement (this "Agreement") is made this
10th day of June, 2000, (the "Effective Date) by and between Xxxxxxxxxx.xxx
Inc (the "Service Provider" ) and Knightrider Investments. (the "Customer").
A G R E E M E N T:
1. SERVICES TO BE RENDERED. The Service Provider will perform
Mandiff Service Consultancy for the Customer. All services provided by the
Service Provider to the Customer are defined as the "Services," any and all
resulting work product is the "Product.
2. PAYMENT OF FEES. In consideration of the Services, the Customer
shall pay Service Provider, the fees (the "Fees") more particularly described
in Exhibit A, which is attached hereto and incorporated into this Agreement.
3. INDEMNIFICATION.
(a) INDEMNIFICATION BY CUSTOMER. The Customer agrees to
indemnify, defend and hold the Service Provider, it's owners and its agents,
officers, directors, lawyers, accountants, and employees, harmless from and
against any and all losses, claims, demands, damages, liabilities, costs and
expenses, including but not limited to reasonable attorneys' fees and the
costs of any legal action arising from the Customer's use of the Services.
Such indemnification shall include, but not be limited to, claims for libel,
slander, infringement of copyright, theft of misappropriation of intellectual
property, or unauthorized use of any trademark, trade name, or service xxxx.
(b) INDEMNIFICATION BY SERVICE PROVIDER. Except as otherwise
herein provided, the Service Provider agrees to indemnify, defend and hold
the Customer and its agents, officers, directors, lawyers, and accountants
harmless from and against any and all losses, claims, demands, damages,
liabilities, costs and expenses, including but not limited to, reasonable
attorneys' fees and costs of any legal action (but excluding consequential
damages) arising from the Service Provider's gross negligence in the course
of providing the Services under this agreement. In no event will the Service
Provider be liable for lost or damaged data, loss of business, or
anticipatory profits, or any other consequential or incidental damages
resulting from the use or operation of the Services or the maintenance
thereof.
4. LIMITATION OF DAMAGES. The Service Provider will endeavor to
provide high quality Services. However, the Service Provider is not, and will
not be responsible for any consequential or incidental damages resulting from
Service Provider's Services, including, but not limited to, any interruptions
of service, regardless of whether such damages arose from Service Provider's
negligence. Although the Service Provider will endeavor to safeguard any data
provided by the Customer, the Customer agrees that it is responsible for
safeguarding its data, including maintaining backup data sets.
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5. TERMINATION OF AGREEMENT.
(a) MATERIAL BREACH. If either party is in material breach
this Agreement, the non-breaching party may serve the breaching party with a
written notice specifying the material breach and requesting the breaching
party to cure it. If the breaching party fails to cure the material breach
within ten (10) days after its receipt of the notice, the non-breaching party
may terminate this Agreement by sending a written notice of termination to
the breaching party. The termination of this Agreement shall take effect
immediately on the receipt of such notice of termination by the breaching
party.
(b) TERMINATION ABSENT A BREACH. Neither party shall have the
ability to unilaterally terminate the Agreement, except as specifically
permitted by provisions of this Agreement. A party specifically granted the
ability to terminate this Agreement for any reason not covered by subsection
(a) of this Paragraph , may exercise this right by sending the other party a
written notice stating that it is terminating the Agreement and citing the
specific paragraph and subparagraph providing the party with the ability to
terminate the Agreement. The termination of this agreement shall take effect
thirty (30) days following the other party's receipt of this notice. This
sub-paragraph shall not apply to any termination arising from a material
breach.
(c) EFFECT OF TERMINATION. On any termination of this
Agreement pursuant to this paragraph, the Service Provider may immediately
cease providing Services to the Customer, and neither party shall have any
further obligation to the other under the Agreement, provided that neither
party shall be relieved from any obligations or liabilities arising under the
Agreement prior to its termination.
6. WARRANTIES; LIMITATIONS ON LIABILITY. THE SERVICE PROVIDER MAKES
NO WARRANTY, REPRESENTATION, OR PROMISE NOT EXPRESSLY SET FORTH IN THIS
AGREEMENT. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN THE SERVICES ARE
PROVIDED "AS IS." THE SERVICE PROVIDER DISCLAIMS AND EXCLUDES ANY AND ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS OF THE SERVICES FOR
A PARTICULAR PURPOSE. THE SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES
OR RELATED MATERIALS WILL SATISFY CUSTOMER'S REQUIREMENTS OR THAT THE
SERVICES AND RELATED SERVICES WILL BE WITHOUT DEFECT OR ERROR.
7. ENTIRE AGREEMENT. This Agreement supersedes all previous
agreements between the parties, contains the entire understanding between the
parties, and may not be changed, except in writing, duly executed by each of
the parties.
8. INDEPENDENT CONTRACTOR. The Service Provider is an independent
contractor relative to the Customer and nothing contained herein shall be
deemed to create a partnership or agency relationship.
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9. ASSIGNMENT. This agreement may not be assigned without the
express written consent of the non-assigning party.
10. NOTICES. All notices required by this Agreement shall be in
writing and sent by Facsimile, Electronic Mail, Federal Express, or U.S.
Mail, Return Receipt Requested as provided below. Such notice shall be
sufficient for the purposes of this Agreement only if sent to the party's
"Address for Service" as listed below. Such Address for Service may be
changed by any party by serving notice (in compliance with the paragraph) on
the other party. No notice sent by facsimile shall be sufficient without a
confirmation receipt. No notice sent by electronic mail shall be sufficient
unless sent to an address included in the recipient's Address for Service and
acknowledged by a human-generated response.
Service Provider's Address for Service:
Address:
Watergardens, 0000, 00xx Xxxxxx
0Xx Xxxxx
Xxxxx Xxxxxx, XX 00000
XXX
Fax: 000 000 0000
E-mail: xxxxxxxx@xxxxxxxxxx.xxx
Customer's Address for Service:
Address: X.X. Xxx X0000
Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx
Fax: 000 000 0000
E-mail: None
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11. DISPUTE RESOLUTION. If a dispute or claim shall arise with
respect to any of the terms or provisions of this Agreement, then either
party may, by notice as herein provided, require that the dispute be
submitted under the Commercial Arbitration Rules of the American Arbitration
Association to an arbitrator in good standing with the American Arbitration
Association within fifteen (15) days after such notice is given. Any such
arbitrator so selected is to be mutually acceptable to both parties. If both
parties are unable to agree upon a single arbitrator, each party shall
appoint one (1) arbitrator. If either party does not appoint an arbitrator
within five (5) days after the other party has given notice of the name of
its arbitrator, the single arbitrator appointed by the party giving notice
shall be the sole arbitrator and such arbitrator's decision shall be binding
upon both parties. If two (2) arbitrators are appointed, these two (2)
arbitrators shall appoint a third arbitrator who shall proceed to resolve the
question. The written decision of the single arbitrator ultimately appointed
by or for both parties shall be binding and conclusive on the parties.
Judgment may be entered on such written decision by the single arbitrator in
any court having jurisdiction and the parties consent to the jurisdiction of
Orange County, California for this purpose. Any arbitration undertaken
pursuant to the terms of this section shall occur in Orange County,
California.
12. ATTORNEYS' FEES. In the event of any legal, equitable or
administrative action or proceeding brought by any party against another
party under this Agreement, the prevailing party shall be entitled to recover
the reasonable fees of its attorneys and any costs incurred in such action or
proceeding including costs of appeal, if any, in such amount that the court
or administrative body having jurisdiction over such action may award.
13. GOVERNING LAW. This Agreement will be construed and enforced in
accordance with, and governed by, the laws of the State of California in the
United States of America without giving effect to any conflict of laws
principles. The parties hereby consent to the personal jurisdiction of the
courts of the County of Orange, California, and waive any rights to change
venue.
14. CURRENCY DENOMINATIONS. All currency denominations are in United
States dollars.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first written above.
The Service Provider
/s/ Xxxxxx Xxxxxx
------------------------------
By: Xxxxxx Xxxxx
Its: BDM
The Customer
/s/ Xxxx X X Xxxx
------------------------------
By: Xxxx X X Xxxx
Its: President
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EXHIBIT A
FEES
In consideration of the Services, the Customer shall pay the Service
Provider, the Fees in the amount of Three Hundred Thousand Dollars ($300,000)
payable as follows: On the Effective Date of this Agreement, the Customer
will pay, by cash, cashier's check or wire transfer, Two Hundred Thousand
Dollars ($200,000.). The remaining One Hundred Thousand Dollars ($100,000.)
shall be payable to the Service Provider within ten (10) days of the
completion of the Services.
The Customer will reimburse the Service Provider for any incidental
costs and expenses, such as traveling etc, during the course of this
agreement.
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