Exhibit 10.40
[CONFORMED COPY]
Master Systems and Program Development Agreement
between
Infonet Services Corporation
0000 Xxxx Xxxxx Xxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000-0000
and
Infinity Logistics Corporation, 0000 Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
and
Questco, Incorporated, d/b/a Evcor Systems
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Table of Contents
1.0 DEFINITIONS .................................................. 2
2.0 WORK STATEMENT ADMINISTRATION ................................ 4
3.0 CHANGES ...................................................... 4
4.0 NOTICE OF DELAY .............................................. 5
5.0 COMPENSATION ................................................. 5
6.0 INVOICING .................................................... 5
7.0 MOST FAVORED COMMERCIAL CUSTOMER ............................. 6
8.0 EXPENSES ..................................................... 6
9.0 REPORTS ...................................................... 6
10.0 DELIVERY AND ACCEPTANCE ...................................... 6
11.0 OWNERSHIP AND RIGHTS AND LICENSE ............................. 7
12.0 AVOIDANCE OF INFRINGEMENT/INDEMNIFICATION .................... 7
13.0 CONFIDENTIAL INFORMATION ..................................... 8
14.0 AGREEMENTS WITH EMPLOYEES .................................... 8
15.0 LIMITATION OF LIABILITY ...................................... 9
16.0 REPRESENTATIONS AND WARRANTIES ............................... 9
19.0 TERM AND TERMINATION ......................................... 10
20.0 MISCELLANEOUS ................................................ 11
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EXHIBIT A - WORK STATEMENT 1 - E-WAREHOUSE PROJECT ........................
ATTACHMENT 1 - REQUIREMENTS DOCUMENT FOR E-WAREHOUSE PROJECT ............
ATTACHMENT 2 - ACCEPTANCE CRITERIA/PROCEDURES ...........................
ATTACHMENT 3 - EVCOR MAINTENANCE AND SUPPORT SERVICES ...................
EXHIBIT B - STATEMENT OF RATES ............................................
EXHIBIT C - MUTUAL NONDISCLOSURE AGREEMENT ................................
Infonet Services Corporation
Master Systems and Program Development Agreement
THIS MASTER SYSTEMS AND PROGRAM DEVELOPMENT AGREEMENT ("Agreement) is made
and entered into this 8th day of May, 2000, by and between Infonet Services
Corporation (hereinafter "Infonet"), a corporation duly authorized and existing
under the laws of the State of Delaware with offices at 0000 Xxxx Xxxxx Xxxxxx,
Xx Xxxxxxx, Xxxxxxxxxx 00000-0000, Infinity Logistics Corporation (hereinafter
"Infinity"), a corporation duly authorized and existing under the laws of the
State of Delaware with offices at 0000 Xxxxxxxx Xxxxxx, Xxxxx X, Xxxxxxx Xxxx,
Xxxxxxxxxx 00000, and Questco, Incorporated, d/b/a Evcor Systems (hereinafter
"Evcor"), a corporation duly authorized and existing under the laws of the State
of North Carolina with offices at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000. Infonet, Infinity, and Evcor are each sometimes referred to
herein as a "Party" and sometimes collectively referred to herein as the
"Parties".
WITNESSETH:
WHEREAS, Infonet desires to engage Infinity and/or Evcor pursuant to a Work
Statements to license, develop, create, test, and deliver certain Deliverables,
and Infinity and Evcor are interested in accepting such engagement, subject to
the Parties' further agreement on the scope and terms of such Work Statement;
and
WHEREAS, Infonet , Infinity , and Evcor mutually desire to set forth in this
Agreement certain terms applicable to all such engagements;
NOW, THEREFORE, Infonet , Infinity, and Evcor, intending to be legally
bound, hereby agree as follows:
1.0 DEFINITIONS
When used in this Agreement and in the Work Statement issued hereunder, the
terms listed below shall have the following meanings:
1.1 Acceptance. Infonet's Acceptance of the Deliverables, or portions
thereof, in accordance with Section 10 herein and in accordance with the Work
Statement issued hereunder.
1.2 Code. Computer programming code for the software described in the Work
Statement. If not otherwise specified, "Code" shall include Object Code, but not
Source Code.
a. Object Code. The machine-readable, compiled form of the Code
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b. Source Code. The human-readable form of the Code and related system
documentation, including all comments and any procedural code such as job
control language.
1.3 Deliverables. All Code, Documentation, hardware, and other materials
developed for or delivered to Infonet by Infinity and/or Evcor under this
Agreement and Work Statement issued hereunder.
1.4 Documentation. User manuals and other written materials that relate to
particular Code, including materials useful for design (for example, logic
manuals, flow charts, and principles of operation).
1.5 Error. Any error, problem, or defect resulting from (1) an incorrect
functioning of Code, or (2) an incorrect or incomplete statement or diagram in
Documentation, if such error, problem or defect renders the Code inoperable,
causes the Code to fail to meet the specifications thereof, causes the
Documentation to be inaccurate or incomplete in any material respect, causes
incorrect results, or causes incorrect functions to occur when any such
materials are used.
1.6 Work Statement. Exhibit A which is attached hereto and incorporated
herein by reference, and which contains the following information:
a. Includes substantially the following statement: "This is a Work
Statement under Master Systems and Program Development Agreement No _______";
b. Is signed on behalf of the Parties by their authorized
representatives; and
c. Contains the following five mandatory items:
i. Descriptions and/or specifications of the services to be
performed and the Deliverables to be delivered to Infonet (separately specifying
those to be performed by Evcor and those to be performed by Infinity).
ii. The name and address of a Administrative Coordinator and
Technical Coordinator for each of Infonet ,Infinity, and Evcor.
iii. The amount, schedule, and method of payment.
iv. The time schedule for performance and for delivery of the
Deliverables.
v. Completion and acceptance criteria for the Deliverables
vi. Such other terms and conditions as may be mutually agreed on
between the Parties.
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2.0 WORK STATEMENT ADMINISTRATION
2.1 Administrative Coordinators. The Work Statement shall state the name,
business address, and telephone number of the Administrative Coordinator of each
Party. The Administrative Coordinator of each Party designated in the Work
Statement shall be responsible for arranging all meetings, visits, and
consultations between the Parties that are of a nontechnical nature. The
Administrative Coordinators shall also be responsible for all administrative
matters such as invoices, payments, and amendments, insofar as they relate to
such Work Statement.
2.2 Technical Coordinators. The Work Statement shall state the name,
business address, and telephone number of the Technical Coordinators of each
Party. The Technical Coordinators of each Party designated in the Work
Statement shall be responsible for technical and performance matters, and
transmission and receipt of Deliverables and of technical information between
the Parties, insofar as they relate to such Work Statement.
3.0 CHANGES
3.1 Change requests that do not substantially affect the nature of
Deliverables, their performance, or their functionality, and that do not change
schedules by more than two weeks or dollar amounts by more than five (5) percent
may be requested by the Parties' Technical Coordinators. All other change
requests with respect to this Agreement, any Work Statement, or any Deliverables
must be requested by the Parties' Administrative Coordinators.
3.2 Infinity and Evcor may not decline to accept any change requests that
reduce the cost of performance, provided that an equitable adjustment in
compensation is made for the out-of-pocket costs of any performance or
preparation already undertaken. Infinity and Evcor further may not decline any
change requests that increase the cost or magnitude of performance, provided
that the changes are reasonable in scope and a commensurate increase in
compensation is determined.
3.3 Changes in any Work Statement or in any of the Deliverables under the
Work Statement shall become effective only when a written change request is
executed by authorized representatives of the Parties.
4.0 NOTICE OF DELAY
Infinity and Evcor agree to notify Infonet promptly of any factor, occurrence,
or event coming to its attention that may affect Infinity's and/or Evcor's
ability to meet the requirements of the Work Statement issued under this
Agreement, or that is likely to occasion any material delay in delivery of
Deliverables. Such notice shall be given in the event of any loss or
reassignment of key employees, threat of strike, or major equipment failure.
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5.0 COMPENSATION
5.1 Amounts and modes of payment for all services to be performed and
Deliverables shall be set forth in the Work Statement. The mode of payment
shall be as follows:
a. Fixed Price. Prices quoted by Evcor and Infinity stated in the
Work Statement and are deemed fixed prices Infonet shall pay the full amount of
the fixed price upon Infonet's Acceptance of particular Deliverables. The Work
Statement also provides for payment to be based on a fixed price for certain
services (i.e., maintenance and support services) to be rendered over a
specified period of time. Infonet shall pay the full amount of the fixed price
upon commencement of the service term and upon renewal of such service term
unless otherwise cancelled according to the terms and conditions of Attachment 3
of the Work Statement.
6.0 INVOICING
6.1 Evcor shall submit invoices to Infonet for work and/or Deliverables
at such time or times as payment becomes due under the Work Statement. Invoices
shall be net thirty (30) days and shall be addressed to Infonet's Administrative
Coordinator. Invoices shall be submitted no more frequently than stated on the
Work Statement. If Infonet fails to pay any non-disputed amount when due within
thirty (30) days from the receipt of the invoice, late charges of the lesser of
(i) one and one-half percent per month or (ii) the maximum interest rate allowed
by law shall also become payable by Infonet to Evcor. In addition, failure of
Infonet to fully pay any non-disputed invoiced amount within thirty (30) days
after the receipt of the invoice shall be deemed a material breach of this
Agreement. Infonet shall notify Evcor of any such dispute, in writing, within
thirty (30) days after the invoice date. Infonet and Evcor shall negotiate in
good faith to resolve such dispute within a period of sixty (60) days following
the invoice date.
6.2 Whenever an invoice includes charges for time and materials, the
invoice shall indicate the names, skill levels, and hours of the employees
performing the work.
6.3 Each invoice shall separately set forth travel expenses (if any)
authorized, in advance, by Infonet for reimbursement. Supporting documentation
(such as receipts for air travel, hotels, and rental cars) called for by
Infonet's standard reimbursement policies shall accompany any such invoice.
Infonet reserves the right to make travel arrangements on behalf of Evcor and
Infinity through Infonet's corporate account and discounts.
6.4 Any extraneous terms on Evcor's invoices shall be void and of no
effect.
6.5 Infinity and Evcor agree and acknowledge that all fees paid by Infonet
as stated in the Work Statement shall be paid directly to Evcor. Infonet shall
not be liable to Infinity or Evcor for any non-payment of fees due between Evcor
and Infinity. Failure of Evcor to pay fees to Infinity shall not be deemed a
breach of this Agreement and Evcor and Infinity agree to continue to provide the
products and services hereunder.
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7.0 MOST FAVORED COMMERCIAL CUSTOMER
Infinity and Evcor warrant to Infonet that the charges established under this
Agreement and the Work Statement issued hereunder shall not exceed those offered
or imposed with respect to similar services provided to other commercial
customers of Infinity and Evcor (excluding any charges pursuant to a government
service agreement). If during the term of this Agreement, either the Infinity
or Evcor offers or accepts lower charges for similar services involving other
customers under similar terms and conditions (excluding any charges pursuant to
a government service agreement), that Party shall so notify Infonet and
immediately remit to Infonet, at Infonet's sole discretion either refund or
credit, the difference between the amount of the payments theretofore made by
Infonet for such similar services and the amount that would have been payable if
such lower charges had been in effect.
8.0 EXPENSES
Except as expressly agreed otherwise by Infonet in the Work Statement, Infinity
and Evcor shall bear all of their own expenses arising from its performance of
their respective obligations under this Agreement and the Work Statement issued
hereunder, including (without limitation) facilities, work space, utilities,
management, clerical, reproduction series, supplies, and the like.
9.0 REPORTS
9.1 Monthly Reports. Infinity and Evcor agree to provide to Infonet, at
least monthly, a written report of the progress of the work required under the
Work Statement issued hereunder, any anticipated problems (resolved or
unresolved), and any indication of delay in fixed or tentative schedules.
9.2 Weekly Status Meetings. Approximately once every week, the Parties
shall meet (conference calls may be substituted upon the mutual agreement of the
Parties hereto) to discuss the status of the work required under the Work
Statement issued hereunder. Such meeting shall provide projections of the time
of completion and the status of Infinity's and/or Evcor's (as applicable)
services and Deliverables, and shall address any problems that have come to
Infinity's or Evcor's attention and Infinity's or Evcor's view as to how such
problems may be resolved.
10.0 DELIVERY AND ACCEPTANCE
Infinity and Evcor shall deliver all Deliverables, upon completion, to Infonet's
Technical Coordinator for testing and Acceptance. Infinity and Evcor shall
memorialize such delivery in a Delivery Confirmation, which sets forth the
nature and condition of the Deliverables, the medium of delivery, and the date
of delivery. Infonet's Technical Coordinator shall countersign such Delivery
Confirmation in order to indicate Infonet's receipt of the contents
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described therein, and the Delivery Confirmation shall thereupon be transmitted
to the Parties' Administrative Coordinators. Unless a different procedure for
testing and Acceptance is set forth in the Work Statement, Infonet's Technical
Coordinator shall commence Acceptance testing following Infonet's receipt of the
Deliverables. Upon completion of such testing, Infonet shall issue to
Infinity's and/or Evcor's Technical Coordinator notice of Acceptance or
rejection of the Deliverables. In the event of rejection, Infonet shall give
its reasons for rejection to Infinity and/or Evcor's Technical Coordination in
reasonable detail. Infinity and/or Evcor shall use all reasonable effort to
immediately correct any deficiencies or nonconformities and resubmit the
rejected items as promptly as possible.
11.0 OWNERSHIP AND RIGHTS AND LICENSE.
11.1 Ownership of Software. All software portions of the Deliverables
shall be owned by Infinity (e-Warehouse) or Evcor (customized portions of the e-
Warehouse Application Software). Infinity and Evcor (as applicable) shall own
all United States and international copyrights in the software portions of the
Deliverables. Infonet shall own all other Deliverables.
11.2 License. Infinity or Evcor (as applicable) hereby grant to Infonet,
its successors and assigns, the perpetual, royalty-free, worldwide, nonexclusive
right and license under any patents owned by Infinity or Evcor (as applicable),
or with respect to which Infinity or Evcor (as applicable) has a right to grant
such rights and licenses, to the extent required by Infonet to exploit the
software portions of the Deliverables and exercise its full rights in the
software portions of the Deliverables. Infonet shall install and use the
software portions of the Deliverables at the license sites stated in the Work
Statement and shall provide remote access to the software portions of the
Deliverables to all of Infonet's Subsidiaries, Affiliates, and Licensed
Companies worldwide ("Infonet").
11.3 Right to Copy. Infonet may make complete or partial copies of the
software portions of the Deliverables as needed solely for testing, archival,
and back-up purposes. Infonet shall ensure that any proprietary, copyright, or
trade secret notices contained in placed upon the software portions of the
Deliverables shall appear on any such copies.
12.0 AVOIDANCE OF INFRINGEMENT /INDEMNIFICATION
12.1 Avoidance of Infringement. In performing services under this
Agreement, Infinity and Evcor agree to avoid knowingly designing or developing
any items that infringe on one or more patents or other intellectual property
rights of any third Party. If Infinity or Evcor become aware of any such
possible infringement in the course of performing work under any Work Statement
issued hereunder, Infinity and/or Evcor shall so notify Infonet promptly in
writing.
12.2 Indemnification -Third Party Rights. Evcor and/or Infinity will
defend, at its own expense, any action brought against Infonet or Evcor and/or
Infinity that is based on a claim that the Deliverables or any part thereof
furnished hereunder infringes a patent or
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copyright of trade secret or other proprietary right of a third party and will
dispose of any claim, defend any action or other proceeding, and pay those
costs, damages, and reasonable attorney's fees incurred by Infonet which are
attributable to any such claims, but such defense and payments are conditioned
on the following: (1) Infonet promptly notified Evcor and/or Infinity in writing
of the claim, and (2) Evcor and/or Infinity shall have sole control of the
defense of any such action on such a claim and all negotiations of its
settlement or compromise. Any such settlement or compromise of material
affecting Infonet's use of the Deliverables shall only be with the consent of
Infonet. Such consent is not to be unreasonably withheld.
Should the Deliverables or any part thereof become, or in Evcor and/or
Infinity's opinion be likely to become, the subject of a claim or infringement
of a patent, copyright, or other third party proprietary right, Evcor and/or
Infinity shall, at its option and expense, either procure for Infonet the right
to continue using the Deliverables, replace or modify the same so that it
becomes non-infringing while still meeting the requirements of this Agreement,
or, after using its commercially reasonable best efforts to first accomplish the
other options, refund to Infonet the full purchase price paid for the affected
Deliverables.
In the event that any proposed settlement of compromise terms do not include
Infonet's right to continue to use the Deliverables on substantially the same
terms and conditions as set forth in this Agreement, Infonet may participate in
such negotiations at its own expense, and Infonet and Evcor and/or Infinity
shall seek to obtain such ongoing right to use. Moreover, if Evcor and/or
Infinity has failed to procure for Infonet rights substantially similar to those
under this Agreement, Infonet may, at Evcor and/or Infinity's cost and expense,
settle or compromise any such claims against it.
13.0 CONFIDENTIAL INFORMATION
13.1 Confidential Information of Infonet. From time to time the Parties
may provide their own confidential business and technical information to each
other in connection with the work to be performed by Infinity and/or Evcor under
the Work Statement issued hereunder. As such, the Parties agree to comply with
the provisions of the Mutual Nondisclosure Agreement attached hereto as Exhibit
C and incorporated herein by reference. All confidential written materials
shall be marked with the legend "Confidential. The Parties herein shall use
their best efforts to prohibit any use or disclosure of the each Party's
confidential information.
14.0 AGREEMENTS WITH EMPLOYEES
14.1 Infinity and Evcor shall obtain and maintain in effect written
agreements with each of its employees who participate in any of Infinity's and
Evcor's work under the Work Statement issued hereunder. Such agreements shall
contain terms sufficient for Infinity and Evcor to comply with all provisions of
this Agreement and to support all grants and assignments of rights and ownership
hereunder. Such agreements also shall impose an
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obligation of confidentiality on such employees with respect to Infonet`s
confidential information.
14.2 Unless the Parties agree otherwise, during the term of this Agreement
and for one-year thereafter, Infonet shall not, directly or indirectly, employ,
solicit or otherwise engage, for the purpose of employment or independent
consulting, any person who is employed or otherwise engaged as an employee,
consultant, contractor, agent, or representative (collectively, an "Agent") of
Evcor or Infinity during the terms of this Agreement.
15.0 LIMITATION OF LIABILITY
15.1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOSS OF USE, REVENUE, OR PROFIT, EVEN IF THE PARTY HAD BEEN ADVISED,
KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
16.0 REPRESENTATIONS AND WARRANTIES
16.1 Infinity and Evcor make the following representations and warranties
for the benefit of Infonet, as a present and ongoing affirmation of facts in
existence at all times when this Agreement or the Work Statement issued
hereunder is in effect:
a. No Conflict. Infinity and Evcor represent and warrant that it is
under no obligation or restriction, nor will it assume any such obligation or
restriction, that does or would in any way interfere or conflict with, or that
does or would present a conflict of interest concerning, the work to be
performed by Infinity or Evcor under this Agreement and the Work Statement
issued hereunder.
b. Ownership Rights -Infinity. Infinity represents and warrants (1)
that it is the sole author of all works employed by Infinity in preparing any
and all Deliverables; (2) that it has full and sufficient right to assign or
grant the rights and/or licenses granted in the Deliverables pursuant to this
Agreement; (3) that no Deliverables have been published under circumstances that
have caused a loss of copyright therein; and (4) that no Deliverables, infringe
any patent, copyright, trademark or other intellectual property rights
(including trade secrets), or privacy or similar rights, of any third party, nor
has any claim (whether or not embodied in an action, past or present) of such
infringement been threatened or asserted, nor is such a claim pending, against
Infinity (or, insofar as Infinity is aware, any entity from which Infinity has
obtained such rights).
c. Ownership Rights -Evcor. Evcor represents and warrants (1) that it
is the sole author of all works employed by Evcor in preparing any and all
Deliverables; (2) that it has full and sufficient right to assign or grant the
rights and/or licenses granted in the Deliverables pursuant to this Agreement;
(3) that no Deliverables have been published under
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circumstances that have caused a loss of copyright therein; and (4) that no
Deliverables infringe any patent, copyright, trademark or other intellectual
property rights (including trade secrets), or privacy or similar rights, of any
third Party, nor has any claim (whether or not embodied in an action, past or
present) of such infringement been threatened or asserted, nor is such a claim
pending, against Evcor (or, insofar as Evcor is aware, any entity from which
Evcor has obtained such rights).
d.Conformity, Performance, and Compliance. Infinity and Evcor
represent and warrants (1) that all Deliverables shall be prepared in a
workmanlike manner and with professional diligence and skill, (2) that all
Deliverables will function on the machines and with the operating systems for
which they are designed, (3) that all Deliverables will conform to the
specifications and functions set forth in the Work Statement issued hereunder,
and (4) that Infinity and Evcor will perform all work called for by the Work
Statement issued hereunder in compliance with applicable law.
17.0 INFINITY'S CONSENT TO PERFORMANCE AND GUARANTY
17.1 Infinity hereby grants its consent to Evcor and hereby authorizes
Evcor to perform Evcor's obligations under this Agreement (including, without
limitation, Evcor's configuration services relating to Infinity's e-Warehouse
software).
17.2 In the event Evcor fails to perform or is unable to perform its
obligations under this Agreement. Infonet may, at its option, engage Infinity
directly to complete performance of the services and delivery of the
Deliverables hereunder. Infonet agrees to payment of all non- disputed charges
up to the point at which Infonet notifies Evcor in writing that it shall engage
Infinity directly to complete performance of the services and delivery of the
Deliverables hereunder.
18.0 RELEASE OF SOURCE CODE
18.1 Infinity agrees to deliver the Source Code for its e-Warehouse
software to Infonet if Infinity (i) avails itself of, or is subjected to by any
third party, a proceeding in bankruptcy in which Infinity is the named debtor;
an assignment by Infinity for the benefit of its creditors; the appointment of a
receiver for Infinity; or any other proceeding involving insolvency or the
protection of or from creditors, and the same has not been discharged or
terminated without any prejudice to Infonet's rights or interests under this
Agreement within thirty (30) days; or (ii) is dissolved or ceases its ongoing
business operations. Upon receipt of such Source Code pursuant to this Section,
Infonet shall have a non-exclusive license to use such Source Code for the
limited purpose of performing any of Infinity's obligations under this
Agreement.
19.0 TERM AND TERMINATION
19.1 Term of Agreement. This Agreement shall become effective as of the
date first above written (herein known as the "Effective Date") and shall remain
in effect for a minimum of term of one (1) year. Thereafter, this Agreement
shall be subject to automatic yearly
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renewals for additional one (I) year terms, unless terminated by either Party by
written notification a minimum of ninety (90) days prior to the expiration of
the then current term.
19.2 Termination of Work Statement. Infonet may, at its sole option,
terminate the Work Statement and Agreement, or any portion thereof at any time,
upon fifteen (15) days' written notice. On receipt of notice of such
termination, Infinity and/or Evcor shall inform Infonet of the extent to which
performance has been completed through such date, and collect and deliver to
Infonet whatever work product then exists in a manner prescribed by Infonet.
Infinity and/or Evcor shall be paid for all work performed through the date of
termination, provided that such payment shall not be greater than the payment
that would have become due if the work had been completed. Except as provided
in Section 19.3, Infinity and Evcor may not terminate the Work Statement and
Agreement once Infinity and/or Evcor has entered into the Agreement and Work
Statement.
19.3 Termination for Default. This Agreement may be terminated upon thirty
(30) days written notice if either party fails to comply with any of its
material term or conditions (except dispute as referenced in Section 6.1),
however, only after the defaulting party's failure to cure same within said
thirty (30) day period.
19.4 Survival. In the event of any termination of this Agreement, Sections
11.1, 12, 13, 14, 15, and 16 hereof shall survive and continue in effect and
shall inure to the benefit of and be binding upon the Parties and their legal
representatives, heirs, successors, and assigns.
20.0 MISCELLANEOUS
20.1 Force Majeure. All Parties hereunder shall be excused from delays in
performing or from its failure to perform hereunder to the extent that such
delays or failures result from causes beyond the reasonable control of such
Party; provided, however, that in order to be excused from delay or failure to
perform, such Party must act diligently to remedy the cause of such delay or
failure.
20.2 No Agency. Infinity and Evcor, in rendering performance under the
Work Statement issued hereunder, are acting solely as independent contractors.
Infonet does not undertake by this Agreement or otherwise to perform any
obligation of Infinity or Evcor, whether by regulation or contract. In no way
is Infinity or Evcor to be construed as the agent or acting as the agent of
Infonet in any respect, any other provisions of this Agreement of the Work
Statement issued hereunder not withstanding.
20.3 Multiple Counterparts. This Agreement may be executed in several
counterparts, all of which taken together shall constitute one single Agreement
between the Parties.
20.4 Section Headings; Exhibits. The section and subsection headings used
herein are for reference and convenience only, and shall not enter into the
interpretation hereof. The
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exhibits referred to herein and attached hereto, or to be attached hereto,
including all Work Statements issued hereunder from time to time, are
incorporated herein to the same extent as if set forth in full herein.
20.5 Required Approvals. Where agreement, approval, Acceptance, or consent
by the Parties hereunder is required by any provision of this Agreement, such
action shall not be unreasonably delayed or withheld.
20.6 No Waiver. No delay or omission by the Parties hereto to exercise any
right or power occurring on any noncompliance or default by the other Party with
respect to any of the terms of this Agreement shall impair any such right or
power or be construed to be a waiver thereof. A waiver by the Parties hereto of
any of the covenants, conditions, or agreements to be performed by the another
shall not be construed to be a waiver of any succeeding breach thereof or of any
covenant, condition, or agreement herein contained. Unless stated otherwise,
all remedies provided for in this Agreement shall be cumulative and in addition
to and not in lieu of any other remedies available to the Parties at law, in
equity, or otherwise.
20.7 Notices. Any notices regarding the breach of this Agreement, as
provided for herein, shall be given in writing and transmitted by personal
delivery, prepaid first class registered or certified mail, or air courier. Such
notices shall be considered received upon the earlier of documented receipt or
five (5) business days after transmission by the sending Party. Notices should
be sent to the applicable Party at the following address; unless otherwise
advised in writing:
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Infonet Services Infinity Logistics Questco, Incorporated,
Corporation Corporation d/b/a Evcor Systems
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X.X. Xxx 0000 0000 Xxxxxxxx Xxxxxx, 0000 Xxxxxxxxx Xxxxx
0000 Xxxx Xxxxx Xxxxxx Xxxxx X
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El Segundo, CA 90245 Redwood City, CA Xxxxxxxxx, Xxxxx
00000 Xxxxxxxx 00000
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Attention: Manager, Attention: Xx. Xxxx Attention: Mr. John
Contracts and Risk Xxxxxxx Xxxx, President
Management
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20.8 No Assignment. Neither Party may, without the prior written consent of
the other Parties, assign or transfer this Agreement or any obligation incurred
hereunder, except by merger, reorganization, consolidation, or sale of all or
substantially all of such Party's assets. Any attempt to do so in contravention
of this Section shall be void and of no force and effect.
20.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
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20.10 Entire Agreement. This Agreement and the exhibits annexed hereto,
together with the Work Statement issued hereunder, constitute the entire
agreement between the Parties. No change, waiver, or discharge hereof shall be
valid unless it is in writing and is executed by the Party against whom such
change, waiver, or discharge is sought to be enforced.
IN WITNESS WHEREOF, Infonet, Infinity, and Evcor have caused this
Agreement to be signed and delivered by their duty authorized officer, all as of
the date first hereinabove written.
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Infonet Services Corporation Infinity Logistics Corporation
Signature: /s/ Signature: /s/
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Name: Akbar H. Firdoay Name: Xxxx Xxxxxxx
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Title: Vice President and Chief Title: CEO
Financial Officer, Treasurer
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Date: 05/11/00 Date: 5-9-00
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-----------------------------------------
Questco Incorporated, d/b/a Evcor
Systems Title: President
Date: 05/08/00
Signature: /s/
-----------------------------------------
Xxxx X. Xxxx
-----------------------------------------
President
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Date: 05/08/00
-----------------------------------------
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