EXHIBIT 10.12
SERVICES AGREEMENT
THIS SERVICES AGREEMENT ("Services Agreement") entered into as of May 2,
2000 ("Effective Date") by and between THE WIDECOM GROUP, INC. ("WIDECOM"),
an Ontario corporation with a place of business at 00 Xxxxx Xxxx, Xxxx 00,
Xxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 and XXXXXXXXXXXXX.XXX, INC.
("XXXXXXXXXXXXX.XXX"), a Delaware corporation with a principal place of
business at 000 Xxxxxxxxx Xxxxxx, Xxxxx 0X, Xxxx Xxxxxxxx, Xxx Xxxxxx,
00000. WideCom and XxxxxxXxxxxxx.XXX shall be collectively referred to
herein as the "Parties."
WHEREAS, XxxxxxXxxxxxx.XXX desires to obtain certain Technical support
services and administrative services from WideCom and WideCom is willing to
furnish or make such services available to XxxxxxXxxxxxx.XXX; and
WHEREAS, in order to formalize the relationship between XxxxxxXxxxxxx.XXX
and WideCom, whereby WideCom provides services of the type referred to
above, XxxxxxXxxxxxx.XXX and WideCom desire to enter into this Services
Agreement.
NOW, THEREFORE, in consideration of the above and the mutual promises
contained herein, the Parties agree as follows:
1. DEFINITIONS
1.1 "Technical Services" means research, development, manufacturing and
other services related to the WideCom Technology.
1.2 "Administrative Services" shall mean general administrative services
including corporate management, human resources, finance, treasury,
MIS, and legal services.
2. SERVICES. WideCom will provide to XxxxxxXxxxxxx.XXX those particular
technical support services and administrative services (the
"Services"), as required by XxxxxxXxxxxxx.Xxx including training of
XxxxxxXxxxxxx.XXX employees and in consideration of the respective
charges set forth in the Section entitled "Charges". WideCom cannot
unilaterally terminate its obligation to provide Services to
XxxxxxXxxxxxx.XXX.
3. TERM. This Services Agreement shall continue in force until 31
December 2005, and thereafter shall be renewed automatically for
successive one-year terms during the term of the Development and
License Agreement executed by the Parties on the Effective Date (the
"Development Agreement") unless terminated sooner by mutual written
consent of the Parties or pursuant to Section 2 above or upon sixty
(60) days written notice from XxxxxxXxxxxxx.XXX to WideCom.
4. CHARGES.
XxxxxxXxxxxxx.XXX shall pay WideCom 120% of WideCom's fully burdened
cost of providing such services.
5. PERFORMANCE OF SERVICES. WideCom shall perform the Services with
substantially the same degree of care, skill and prudence customarily
exercised with respect to its own employees.
6. LIMITATION OF LIABILITY. In furnishing XxxxxxXxxxxxx.XXX with the
Services as herein provided, WideCom shall have the duties to use its
best efforts and act, and to cause its employees and agents to act,
in a reasonably prudent manner, but neither WideCom nor any of its
officers, directors or agents shall be liable to XxxxxxXxxxxxx.XXX or
its creditors or shareholders for errors of judgment or for anything
except willful misfeasance, bad faith or gross negligence in the
performance of their duties or reckless disregard of their
obligations and duties under the terms of this Services Agreement.
Neither party will be responsible for general, special, indirect,
incidental or consequential damages that the other party or any third
party may incur or experience on account of entering into or relying
on this Services Agreement.
7. ASSIGNMENT. Neither party shall assign or transfer any of its rights
or obligations under this Services Agreement without the prior
written consent of the other.
8. OTHER ACTIVITIES OF WIDECOM. XxxxxxXxxxxxx.XXX recognizes that
WideCom now renders and may continue to render management and other
services to other companies that may or may not have policies and
conduct activities similar to those of XxxxxxXxxxxxx.XXX. WideCom
shall be free to render such advice and other services, and
XxxxxxXxxxxxx.XXX hereby consents thereto. These permitted activities
do not permit WideCom to violate the exclusivity arrangement with
respect to the transfer of its technology. WideCom shall not be
required to devote full time and attention to the performance of its
duties under this Services Agreement, but shall devote only so much
of its time and attention as it prudently deems reasonable or
necessary for such purposes.
9. NOTICES. All notices, requests, demands and other communications
provided for by this Services Agreement shall be in writing
(including telecopier or similar writing) and shall be deemed to have
been given at the time of hand-delivery or when mailed in any general
or branch office of the United States Postal Service, enclosed in a
registered or certified postpaid envelope, or sent by Federal Express
or other similar overnight courier service, addressed to the address
of the Parties stated first above or to such changed address as such
party may have fixed by written notice.
10. GOVERNING LAW. This Services Agreement shall be governed by the laws
of the State of New Jersey, excluding conflicts of law principles.
11. ARBITRATION. Any actions brought to enforce any of the provisions of
this Services Agreement shall be fully and finally resolved by
binding arbitration conducted by a mutually acceptable independent
third party, under the rules of the American Arbitration Association.
12. GENERAL. This Services Agreement constitutes the entire understanding
between the Parties with respect to the subject matter hereof and
supersedes all proposals, commitments, writings, negotiations and
understandings, oral and written, and all other communications
between the Parties relating to the subject matter of this Services
Agreement.
This Services Agreement may not be amended or otherwise modified except in
writing duly executed by both Parties. A waiver by any party of any breach
or violation of this Services Agreement shall not be deemed or construed as
a waiver of any subsequent breach or violation thereof. This Services
Agreement may be executed in several counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same document. Should any part, term or condition hereof be declared
illegal or unenforceable or in conflict with any other law, the validity of
the remaining portions or provisions of this Services Agreement shall not
be affected thereby, and the illegal or unenforceable portions of this
Services Agreement shall be and hereby are redrafted to conform with
applicable laws while leaving the remaining portions of this Services
Agreement intact. No party shall be deemed to have breached this Services
Agreement or be held liable for any failure or delay in the performance of
all or any portion of its obligations under this Services Agreement if
prevented from doing so by acts of God or the public enemy, fires, floods,
storms, earthquakes, riots, strikes, lock-outs, wars and war-operations,
restraints of government power or communication line failure or by reason
of the judgment, ruling or order of any court or agency of competent
jurisdiction or change of law or regulation subsequent to the execution of
this Services Agreement. Subject to the provisions of Section 8 of this
Services Agreement, this Services Agreement is solely for the benefit of
the Parties and their respective successors and assigns. Nothing herein
shall be deemed to provide any rights to any other entity or individual.
Section headings are for convenience only and do not control or affect the
meaning or interpretation of any terms or provisions of this Services
Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Services
Agreement as of the date first above written.
XXXXXXXXXXXXX.XXX, INC. THE WIDECOM GROUP, INC.
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Xxxx X'Xxxxx Xxxxxx X. Xxxx
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