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EXHIBIT 10.13
TECHNICAL SUPPORT AGREEMENT
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This Technical Support Agreement (the "Agreement") is made and entered
into this 15th day of May, 1995, by and between DHI COMPUTING SERVICE, INC., a
Utah corporation ("DHI") and XXXXXXX & ASSOCIATES, INC. (d/b/a "System One"), a
Colorado corporation ("System One").
DHI and System One have entered into a License Agreement (the "License
Agreement") on this date pursuant to which DHI has granted to System One a
perpetual, restrictive and nonexclusive license to use the DHI Systems Software,
the DHI Financial Software Modules, and the DHI FTI Software, as defined in the
License Agreement, in the health care industry. System One desires to obtain
from DHI certain technical support services with respect thereto.
In consideration of the mutual covenants contained herein and other
valuable consideration, the adequacy and receipt of which is hereby mutually
acknowledged, the parties hereto agree as follows:
1. Definitions. The term "Software" in this Agreement means the DHI
Systems Software, the DHI Financial Software Modules, and the DHI FTI Software,
as defined in the License Agreement, and includes, without limitation, all error
corrections, new releases, and associated materials provided by DHI to System
One pursuant to this Agreement. The term "Software" in this Agreement
specifically excludes the Part (d) Components, as defined in the License
Agreement, except to the extent part of the DHI Systems Software, the DHI
Financial Software Modules, or the DHI FTI Software. The term "Documentation"
means the portion of the Software which includes the related printed or tangible
materials, such as, but not limited to, flow charts, logic diagrams, listings,
and user documentation. The terms "DHI Systems Software," "DHI Financial
Software Modules," and "DHI FTI Software," also have the same meanings as in the
License Agreement.
2. Support Services. During the term of this Agreement, DHI agrees,
except as otherwise stated in this Agreement, to provide the following technical
support services to System One:
(a) DHI agrees to use prompt and commercially reasonable
efforts to correct verifiable and reproducible errors in the Software
which are reported to DHI by System One in accordance with DHI's
standard reporting procedures as outlined in Exhibit A. For purposes
of this Agreement, the term "error" means any failure of the Software
to function on compatible computer equipment (as defined by DHI from
time to time) substantially as provided in DHI's then current
Documentation for the Software. The correction of errors shall involve
either a software modification or addition that, when made or added to
the Software, makes them capable of functioning on compatible computer
equipment substantially as provided in
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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DHI's user documentation, or a procedure or routine that, when
observed in the regular operation of the Software, eliminates the
practical adverse effect on System One of the error. A breach of
warranty may be eliminated by revising the Documentation to conform
with the Software only if to do so will not materially and adversely
affect the functions of the Software for System One. DHI shall have no
responsibility under this Agreement with respect to errors in any
version of the Software other than the most recent release thereof made
available by DHI to System One pursuant to Section 2(d) (or the
release of the Software delivered pursuant to the License Agreement, if
no release has been made pursuant to Section 2(d) of this Agreement),
provided that DHI shall continue to support a prior release for a
reasonable period sufficient to allow System One to implement the most
recent release, but not to exceed 120 days.
DHI's obligations under this Section 2(a) are conditioned
upon proper use of the Software and shall not apply if System One makes
or permits any modification or alteration therein which is not approved
by DHI in writing, or deviates from the operating procedures therefor
which are suggested by DHI, or if an error results in whole or in part
from any neglect, accident or misuse by System One or its employees or
agents, or from any computer equipment failure or failure to maintain a
proper operating environment for the computer equipment, or from any
error in the operating programs which are not part of the Software. If
DHI performs services to correct an error and it is mutually determined
that the error resulted in whole or in part from circumstances
described in the preceding sentence, DHI shall have the option to
charge System One a reasonable fee for such service in addition to the
fee provided for in Section 6 herein, which fee shall be based on DHI's
then standard rates for personnel, computer usage, travel and other
costs.
(b) DHI shall be available to provide reasonable 24 hour a day
telephone assistance to System One in problem diagnosis and resolution
with respect to System One's use of the Software. DHI shall, at its
expense, maintain an 800 number for this purpose. On Sundays and on
Federal and State holidays, DHI's response may be slower to the
extent it utilizes an answering service or paging device. The telephone
support service to be provided by DHI shall not be a substitute for
proper training of System One's employees. Except in emergency
situations, all telephone communications by System One shall be made by
System One's representative designated by it from time to time pursuant
to Section 13 herein.
(c) At the request of System One from time to time, DHI shall
maintain dial-up communication capability with one central computer of
System One with which the Software is
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being used, and System one shall also maintain dial-up communication
capability with DHI's computer facilities. Alternatively, at System
One's option, a dedicated telephone line shall be utilized to
maintain communication. System One shall pay all telephone charges
incurred by it or DHI in connection with such dial-up or dedicated
line communications. (In conjunction with the execution of this
Agreement, the parties are entering into a Lease Agreement (the
"Lease") pursuant to which System One will occupy space at DHI's
principal offices in Provo, Utah, and pursuant to which System one
will be entitled to certain usage of the central processing equipment
of DHI located at those facilities. The dial-up capability
contemplated by this part (c) will be for a central computer of
System One which is in addition to the central processing equipment
of DHI which will be available to System One during the term of the
Lease.)
(d) DHI may, from time to time, issue new releases of the
Software for its own use or to customers generally, containing error
corrections and minor or major enhancements. DHI shall provide System
One with a copy of any such releases, except: (i) with respect to the
DHI Financial Software Modules, any new applications of such modules
(as contrasted to minor or major enhancements of applications
existing at the date of this Agreement), and (ii) as provided in
section 4 herein with respect to the DHI FTI Software. Copies of any
new releases to be provided by DHI shall be provided to System One
within forty-five (45) days after DHI commences use thereof in the
ordinary course of its business (not including testing) or at the
same time that DHI provides copies thereof to customers generally.
(e) With respect to new releases provided to System One
pursuant to this Agreement, DHI shall provide object code, source
code, and user documentation.
(f) DHI shall maintain a trained staff capable of rendering
the services set forth in this Agreement.
3. DHI Financial Software Modules. There are five (5) DHI Financial
Software Modules: General Ledger, Fixed Assets, Accounts Payable, Payroll,
and Materials Management. DHI will provide technical support to System One
pursuant to this Agreement with respect to the General Ledger Module and the
Fixed Assets Module.
The Accounts Payable Module, the Payroll Module, and the Materials
Management Module (collectively the "HPS Related Modules") have historically
been supported by DHI in conjunction with its HPS Division, and, notwithstanding
anything in this Agreement to the contrary, the support obligations of DHI under
this Agreement will not extend to the HPS Related Modules. However,, if at any
time DHI does issue new releases of the HPS Related Modules containing error
corrections and minor or major
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enhancements (but not new applications), DHI shall provide System One with a
copy of any such releases as contemplated in Section 2(d) herein.
System One agrees to provide to DHI technical support (corresponding to
the technical support which DHI is to provide to System One with respect to the
General Ledger Module and the Fixed Assets Module) with respect to the HPS
Related Modules and, in conjunction therewith, will provide DHI with copies of
new releases of the HPS Related Modules containing error corrections and minor
or major enhancements (but not now applications) which System One provides to
its customers generally.
Pursuant to Section 8 herein, additional technical support services
with respect to the DHI Financial System Modules may be provided by either party
to the other. The parties may negotiate some method of offsetting the charges
for such services, with the party owing the most to pay the balance from time to
time as may be agreed upon.
Either party shall have the right for any reason whatever, upon ninety
(90) days advance written notice to the other party, to terminate this Agreement
with respect to the DHI Financial System Modules.
4. DHI FTI Software. Notwithstanding anything in this Agreement to the
contrary: (a) the support obligation of DHI with respect to the DHI FTI Software
applies only to the modules or classes thereof which are generally available to
customers of DHI prior to the date of this Agreement (the "existing modules or
classes" which are the modules and classes described in the description of the
DHI FTI Software which is attached as Exhibit C to the License Agreement), and
(b) System One shall not be entitled to any modules or classes of DHI FTI
Software which are currently under development (which, for this purpose, do not
include the existing modules or classes as described in part (a) above) or which
are hereafter developed by DHI, whether or not such modules or classes of DHI
FTI Software are otherwise released by DHI as minor or major enhancements to the
existing modules or classes.
5. Term The term of this Agreement shall be for a period of two years
from the date of this Agreement with respect to the DHI Financial System
Modules, and the DHI FTI Software, except as it may be earlier terminated with
respect to the DHI Financial System Modules pursuant to Section 3 herein.
The term of this Agreement with respect to the DHI Systems Software
shall continue until terminated pursuant to Section 7 herein.
6. Fees. For the technical support services to be provided by DHI under
this Agreement, System One agrees to pay to DHI a
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monthly fee in the amount of $[*], subject to adjustment as hereinafter
provided.
At the beginning of the second year of the term and at the beginning of
each additional year of the term, the fee shall be increased by a percentage
equal to the sum of: (a) [*], (b) [*]. The "percentage increase in CPI-U during
the immediately preceding year" means the percentage increase in the CPI-U (the
Consumer Price Index--U.S. City Average For All Items For All Urban Consumers
(1982-84=100) published by the Bureau of Labor Statistics of the United States
Department of Commerce) between the last full calendar month prior to the
commencement of such immediately preceding year and the last full calendar month
in such immediately preceding year. (If the CPI-U is at any time no longer
published, then another index reasonably selected by DHI shall be substituted
for the CPI-U.) The monthly fee shall be due and payable in advance, on or
before the first day of the month to which it relates.
In addition to the foregoing fee, System One shall pay the following
expenses reasonably incurred by any employees of DHI who travel at the request
of System One (other than to the premises leased by System One pursuant to the
Lease) in connection with the performance by DHI of its services under this
Agreement: economy class, round trip air fare or its equivalent; first class,
single occupancy hotel or motel accommodations; reasonable out-of-pocket meal
expenses; and reasonable out-of-pocket local transportation expenses for taxi
and/or automobile rental service. System One shall reimburse DHI for any such
expenses within 30 days after receipt of a correct invoice therefor. DHI may
submit an invoice at any time for any part or all of such fees to the extent
the services to be provided for such fees have been rendered. If an invoice is
deemed incorrect, System One must notify DHI within five working days of
receipt; otherwise, such invoice shall be deemed correct.
7. Termination. This Agreement may be terminated as follows:
(a) This Agreement may be terminated by DHI on any anniversary
of this Agreement (but not earlier than the fourth anniversary) in the
event DHI no longer uses the DHI Systems Software in the ordinary
course of its business or no longer provides technical support services
for the DHI Systems Software to customers.
(b) This Agreement may be terminated by System One on any
anniversary of this Agreement (but not earlier than the second
anniversary) for any reason whatever, provided that at least ninety
(90) days prior written notice is given to DHI.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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(c) This Agreement may be terminated by DHI on any
anniversary of this Agreement (but not earlier than the seventh
anniversary) for any reason whatever, provided that at least 180 days
prior written notice is given to System One.
(d) This Agreement may be terminated by either party upon
material default by the other party in the performance of its
obligations and failure of such other party to correct such default
within 15 days after written notice thereof (or if such default, other
than a default in the payment of money owed, cannot reasonably be
corrected within such 15 days, then failure of such other party to
commence corrective steps within such 15 day period and diligently to
pursue such steps to completion).
8. Additional Services. Upon written request from System One from time
to time, but subject to specific agreement by DHI in each instance, DHI shall
use commercially reasonable efforts to perform additional technical support
services which System One may reasonably need in addition to those otherwise
provided for in this Agreement. Additional technical support services not
otherwise covered by this Agreement would include, without limitation, the
following: (a) installation of the Software on equipment of Customers, (b) any
modifications to the Software requested by System One except to correct errors
pursuant to Section 2(a) herein, (c) application program support services except
with respect to the DHI Financial Software Modules and the DHI FTI Software, and
(d) network control transition services. System One agrees, within 30 days after
receipt of an invoice, to pay reasonable charges for such additional services,
which shall be based on DHI's then standard rates for personnel, computer usage,
travel and other costs.
9. Cooperation. System One agrees to cooperate with DHI in the
performance by DHI of its obligations under this Agreement.
10. Ownership. Title to, ownership of and all proprietary rights in the
Software and the Documentation are reserved to and will at all times remain with
DHI, and System One acknowledges that, except for the License provided for and
defined in the License Agreement, it has and will have no right or interest
therein regardless of whether System One, its employees or agents, may have
contributed to the conception or development thereof or paid DHI for its
services in connection therewith. System One shall from time to time take any
further action and execute and deliver any further instruments, including
documents of assignment or acknowledgment, that DHI may reasonably request in
establishing and perfecting its ownership rights in the Software and the
Documentation.
11. Protection of Proprietary Rights. System One recognizes and agrees
that the Software and the Documentation: (a) are considered and will be
considered by DHI to contain trade secrets,
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(b) are and will be furnished to System One in confidence, and (c) contain and
will contain proprietary and confidential information of DHI. The placement of a
copyright notice on any portion of the Software or Documentation will not be
construed to mean that such portion has been published and will not derogate
from any claim that such portion is a trade secret or contains proprietary and
confidential information. System One agrees to hold the Software and
Documentation in confidence and to take all reasonable precautions to safeguard
the confidentiality thereof. System One shall keep all copyright notices and
proprietary legends on the Software and Documentation and all copies thereof.
System One will take appropriate action by instruction, agreement or
otherwise, with any persons permitted access to any portion of the Software or
Documentation, including, without limitation, any sublicensees, to inform them
of the trade secret, proprietary and confidential nature of the Software and
Documentation, and to obtain their compliance with the terms of this Section.
System One will be liable for noncompliance by agents and sublicensees to the
same extent as it would be liable for noncompliance by its employees.
System One will insure, prior to disposing of any media, that any
materials relating to the Software or Documentation have been erased or
otherwise destroyed.
The provisions of this Section shall survive any termination of this
Agreement or the License granted under the License Agreement. Notwithstanding
anything in this Section to the contrary, System One shall have no obligation of
confidentiality with respect to any portion of the Software or the Documentation
which (i) is now, or hereafter becomes, through no act or failure to act on the
part of System One, generally known or available to the public, or (ii) is
required to be disclosed by System One by judicial action after notice to DHI
and after all reasonably available legal remedies to maintain the
confidentiality thereof have been exhausted.
12. DHI Representatives. DHI agrees that it shall from time to time
designate one or more individuals (but not more than three (3)) who will be the
primary contacts on behalf of DHI with System One.
13. System One Representatives. System One agrees that it shall from
time to time designate qualified individual(s) (but not more than three (3)) who
will have the responsibilities herein described. All communications on behalf
of System One with respect to this Agreement and the interaction of DHI and
System One with respect thereto shall be made by such designated individual(s).
The qualified individual(s) designated by System One must have the skills
required to respond to operational questions from System One data processing
customers in the use of the Software, and System One agrees to have such
individual(s) respond to such questions and
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to work out the underlying problems to the extent possible for the purpose of
minimizing the involvement otherwise required by DHI.
14. Patent and Copyright Indemnity. DHI will, at its expense, defend
System One against any claim made against System One during the period of time
beginning eighteen (18) months after the date of this Agreement (which is when
the License Agreement no longer applies to infringement claims) and ending on
the date of the termination of the term of this Agreement with respect to any
portion of the Software (i.e., the DHI Software, the DHI Financial Software
Modules, or the DHI FTI Software), in which claim it is alleged that such
portion of the Software as used within the scope of the License granted to
System One pursuant to the License Agreement infringes a U. S. patent,
copyright, or trade secret belonging to any third party, and DHI will pay all
costs, damages, and attorneys' fees that a court finally awards against System
One as a result of such claim provided that:
(a) System One promptly notifies DHI in writing of any such
claim, and
(b) System One allows DHI to control, and fully cooperates
with DHI in, the defense and all related settlement negotiations.
If such a claim of infringement has occurred, or in DHI's judgment is likely to
occur, System One agrees to allow DHI, at DHI's option and expense, to procure
the right for System One to continue using the potentially infringing Software
or to replace or modify it so that it becomes non-infringing. If none of the
foregoing alternatives is available on terms which are reasonable in DHI's
judgment, then DHI shall have the right to terminate the license of the
potentially infringing Software upon 60 days prior written notice to System One,
in which event DHI shall refund to System One the amount of the fees paid by
System One to DHI pursuant to this Agreement during the two (2) year period
prior to the date on which such claim against System One was made (or a
proportionately smaller amount if only part of the Software is potentially
infringing). Notwithstanding anything herein to the contrary, DHI shall have no
liability for any infringement claim which results in any way from any
modification or alteration of the Software or any part thereof which is not made
by DHI pursuant to this Agreement.
This Section states DHI's entire obligation to System One, regarding
infringement or the like.
15. Taxes. System one agrees to pay when due (or reimburse DHI for) all
sales, use and other taxes, including penalties and interest (but only to the
extent such penalties and interest are not attributable to any delay by DHI in
invoicing System One for such sales, use and other taxes), which DHI is at any
time obligated to pay or collect in connection with this Agreement or
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the License of the Software or the other transactions contemplated by this
Agreement, except any taxes based on DHI's net income.
16. Disclaimer of Warranties. DHI MAKES NO REPRESENTATIONS OR
WARRANTIES UNDER THIS AGREEMENT WITH RESPECT TO THE SOFTWARE OR, EXCEPT AS SET
FORTH HEREIN, WITH RESPECT TO THE SERVICES TO BE RENDERED BY DHI HEREUNDER,
WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
17. Limitation of Damages; Exclusions of Damages. THE TOTAL LIABILITY
OF DHI FOR ANY AND ALL CLAIMS IN ANY WAY RELATED TO THIS AGREEMENT, AND ANY
PERFORMANCE OR NONPERFORMANCE BY DHI HEREUNDER, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL IN NO EVENT
EXCEED THE TOTAL FEES AND CHARGES PAID TO DHI BY SYSTEM ONE WITHIN THE SIX MONTH
PERIOD PRIOR TO THE ASSERTION OF ANY SUCH CLAIM. THIS LIMITATION OF LIABILITY
WILL NOT APPLY TO CLAIMS UNDER SECTION 14 HEREIN RELATED TO PATENT AND COPYRIGHT
INDEMNITY.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL DHI BE LIABLE TO SYSTEM ONE OR TO ANY SUBLICENSEE OR TO ANY OTHER THIRD
PARTY FOR ANY LOST PROFITS, LOST SAVINGS OR OTHER CONSEQUENTIAL DAMAGES, OR FOR
ANY INCIDENTAL OR SPECIAL DAMAGES, EVEN IF DHI HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY SYSTEM ONE BASED UPON ANY CLAIM
BY ANY OTHER PARTY AGAINST SYSTEM ONE.
18. Third Party Claims. System One agrees to indemnify and hold DHI
harmless from any and all claims, losses and damages asserted against DHI by any
employee or agent of System One, or by any patient of System One's customers, or
any affiliate, or any other person or entity who may be affected by System One's
or System One's customers' use of the Software, except for claims in which it is
alleged that the Software or Documentation infringe a U.S. patent, copyright or
trade secret belonging to any third party.
19. Delay in Performance. DHI shall not be responsible for any failure
to perform due to causes beyond DHI's control, including, but not limited to,
labor disputes, strikes, acts of God, fire, storm, water, delays in
transportation, power failure, communication line failure and governmental
actions. Any delay beyond DHI's control shall be excused and the period of
performance extended as may be necessary to enable DHI to perform after the
cause of delay has been removed.
20. Confidential Information of System One. DHI agrees to take all
reasonable steps to assure that it does not use or copy System One's
confidential information unless such use or copying is approved by, and is for
the benefit of, System One.
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Each party hereto will take all reasonable steps to assure that the
confidential information of the other party shall not be disclosed by it to
others, in whole or in part, without the prior written permission of the other
party. Such prohibition on disclosures shall not apply to disclosures by either
party to its employees and agents, provided such disclosures are reasonably
necessary to the actions to be taken by such party pursuant to this Agreement,
and provided further that such party takes all reasonable steps to ensure that
such information is not disclosed by such employees in contravention of this
Agreement. The obligations of System One in this Section 20 are in addition to
the obligations of System One under Section 11 herein relating to the protection
of proprietary rights.
21. Notices. All notices given under this Agreement shall be in writing
and shall be given by personal delivery, United States mail, or United States
express mail or other established express delivery service (such as Federal
Express), postage or delivery charge prepaid, addressed to the parties as
follows:
DHI: DHI Computing Service, Inc.
Attention: Chief Executive Officer
0000 Xxxx 000 Xxxxx
Xxxxx, Xxxx 00000
System One: Xxxxxxx & Associates, Inc.
Attention: Contract Administrator
0000 Xxxxxx Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Notice shall be considered received on the date of actual receipt, in the event
of personal delivery, or on the date of first attempted delivery, in the event
of United States mail or United States express mail or other established express
delivery service. Either party, upon notice to the other, may change the address
for future notices, as long as the changed address is one to which notices may
be delivered in the manner contemplated by this section.
22. Governing Law; Limitation on Actions. This Agreement is entered
into in the State of Utah and in all respects shall be construed, interpreted,
and governed by the laws of the State of Utah, without regard to conflicts of
law principles. No claim or action arising out of this Agreement may be asserted
by either party more than two years after the cause of action has arisen.
23. Entire Agreement; Interpretation; Modification. This Agreement,
together with its exhibits, which exhibits are part of this Agreement, sets
forth the entire agreement and understanding of the parties with respect to
subject matter hereof, and supersedes all prior agreements, written or oral,
between the parties. The provisions of this Agreement shall be construed as a
whole and not strictly for or against either party. The section
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headings in this Agreement are included only for purposes of convenient
reference, and they shall not affect the interpretation of this Agreement. This
Agreement may not be amended or modified except by a written instrument signed
by both parties.
24. Late Payments. If any payment owed by System One to DHI is not paid
when due, DHI, at its option, may charge System One interest on such past due
amount at the rate of one and one-half percent (1.5%) per month, or the maximum
rate permitted by applicable law, whichever is less.
25. Effect of Invalid or Unenforceable Provision. This Agreement, to
the extent possible, shall be construed so as to give validity to all the
provisions hereof. Any provision of this Agreement found to be invalid or
unenforceable shall not affect the validity or enforceability of any other
provision of this Agreement, and each provision of this Agreement shall be
enforced to the fullest extent permitted by applicable law. However, if removal
of a provision would frustrate the contractual intent of the parties, such
removal shall be cause for termination.
26. Arbitration. If a dispute cannot be resolved to the parties' mutual
satisfaction, the dispute shall be resolved through binding arbitration. It is
the intent of the parties that the arbitration be structured in such a way as to
minimize costs and delay. The arbitration shall be conducted pursuant to the
rules of commercial arbitration of the American Arbitration Association (AAA),
with the following stipulations or exceptions:
(a) The arbitration hearing shall be held before a single
arbitrator if DHI and System One agree upon a single arbitrator. If DHI
and System One cannot agree upon a single arbitrator, then each shall
select an arbitrator, and those arbitrators shall select a third
arbitrator. If they are unable to agree upon a third arbitrator within
15 days, the third arbitrator shall be selected as provided in the AAA
rules. Each arbitrator shall have knowledge of healthcare electronic
data processing practices.
(b) Each party's presentation at the arbitration hearing shall
be limited to 14 hours, and the hearing shall be completed within ten
(10) business days.
(c) The arbitration decision shall be rendered not later than
thirty (30) days after the final day of the hearing and shall be
judicially enforceable, non-appealable and binding.
(d) Summaries of any expert testimony, along with copies of
all documents to be submitted as exhibits, shall be exchanged at least
ten (10) business days before arbitration under procedures set up by
the arbitrator(s).
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(e) Except as otherwise specified herein, there shall be no
discovery or dispositive motion practice except as may be permitted by
the arbitrator(s), who may authorize only such discovery as is shown to
be necessary to insure a fair hearing. No discovery or motions
permitted by the arbitrators shall in any way alter the time limits
specified herein.
(f) Arbitration costs, arbitrators' fees, and attorneys' fees
and costs shall be allocated between the parties by the arbitrator(s).
(g) The arbitration shall occur in Phoenix, Arizona.
(h) In no event may the arbitrator(s) award punitive damages.
27. Binding Effect; Condition on Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties, their successors and
assigns. System One may not assign its rights under this Agreement unless, in
conjunction therewith, the assignee agrees for the benefit of DHI to assume
System One's obligations under this Agreement, including, without limitation,
System One's obligations under Section 11 herein relating to the protection of
proprietary rights. No such assignment shall release System One of its
obligations under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement.
DHI COMPUTING SERVICE, INC.,
a Utah corporation
By: /s/ [ILLEGIBLE]
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Its: [ILLEGIBLE]
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XXXXXXX & ASSOCIATES, INC.,
a Colorado corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: President & CEO
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