EXHIBIT 10.2
DETTO TECHNOLOGIES CORPORATION
TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement (the "AGREEMENT") is entered into by and
between Detto Technologies Corporation, a Washington corporation located at
00000 XX 00xx Xxxxxx, Xxxxx 00, Xxxxxxxx, XX 00000 ("DETTO"), and Alista, Inc.,
a Washington corporation located at 00000 XX 00xx Xxxxxx, Xxxxx 00, Xxxxxxxx, XX
00000 ("ALISTA"), and is effective as of June 28, 2004(the "EFFECTIVE DATE").
RECITALS
A. Detto is the owner of certain software that assists computer users from
transferring the contents of a hard disk from one computer to another.
B. Alista wishes to enter the business of providing similar software to users in
the Enterprise Market (as defined below).
C. Detto wishes to provide Alista , and Alista wishes to receive from Detto, a
license to use such software under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and
agreements herein contained, the parties hereto do hereby agree as follows:
AGREEMENT
1. DEFINITIONS.
1.1 "ALISTA MODIFICATIONS" means modifications to or new versions of the Core
Code or Detto Modifications made by or for Alista under this Agreement,
including, without limitation: (a) changes to Source Code and Object Code
and documentation for the Core Code, (b) for patentable or patented
material, any improvement thereon; and (c) for material that is protected
by trade secret, any new material derived from such existing trade secret
material, including new material that may be protected by copyright,
patent and/or trade secret.
1.2 "CONFIDENTIAL INFORMATION" means all nonpublic information that a party
designates as confidential at the time of the disclosure or that, based on
the nature of the information or circumstances surrounding its disclosure,
the receiving party should in good faith treat as confidential.
Confidential Information does not include information that the Receiving
Party can demonstrate: (i) was generally known to the public at the time
disclosed by the Disclosing Party; (ii) became generally known to the
public other than through a breach of this Agreement by the Receiving
Party after the time of disclosure to the Receiving Party by the
Disclosing Party; (iii) was in the Receiving Party's possession free of
any obligation of confidentiality at the time of disclosure to the
Receiving Party by the Disclosing Party; (iv) was rightfully received by
the Receiving Party from a third party that was free of any obligation of
confidentiality after disclosure by the Disclosing Party to the Receiving
Party; or (v) was independently developed by the Receiving Party without
reference to or use of Confidential Information disclosed by the
Disclosing Party.
1.3 "CORE CODE" means Detto's software product known as "Intellimover 4.0," as
delivered by Detto to Alista under this Agreement.
1.4 "DETTO MODIFICATIONS" shall mean modifications made by or for Detto the
Core Code or Alista Modifications under this Agreement, including, without
limitation: (a) changes to Source Code and Object Code and documentation
for the Core Code, (b) for patentable or patented material, any
improvement thereon; and (c) for material that is protected by trade
secret, any new material derived from such existing trade secret material,
including new material that may be protected by copyright, patent and/or
trade secret.
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1.5 "DISCLOSING PARTY" means either Detto or Alista when such party is
disclosing Confidential Information to the other party under this
Agreement.
1.6 "ENTERPRISE MARKET" means the market for the sale of the Enterprise
Version, as such market is defined in Exhibit A, which may be updated from
time to time upon the mutual agreement of the parties.
1.7 "ENTERPRISE VERSION" means a version of the Software that Alista creates
under this Agreement, which version will consist of the Core Code (or
portions thereof) and Alista Modifications.
1.8 "EVENT OF DEFAULT" means any of the following events: (i) a party becomes
insolvent or is unable to pay its debts as they mature, or makes an
assignment for the benefit of creditors; (ii) a petition under any
foreign, state or United States federal bankruptcy act, receivership
statute, or the like, as they now exist, or as they may be amended, is
filed by a party; or (iii) such a petition is filed by any third party, or
an involuntary petition is not resolved favorably to such party within
sixty (60) days after the petition is filed.
1.9 "NON-ENTERPRISE MARKET" means any market except for the Enterprise Market.
1.10 "OBJECT CODE" means machine-executable computer software code in binary
form.
1.11 "RECEIVING PARTY" means either Detto or Alista when such party is
receiving Confidential Information from the other party under this
Agreement.
1.12 "SOURCE CODE" means computer software code in human-readable, high-level
language form which, when compiled or assembled, becomes the Object Code
of a software program. Source Code includes all other design documents,
including without limitation, logic diagrams, flow charts, and developer
comments concerning the relevant software code.
2. DELIVERY OF CORE CODE AND MODIFICATIONS; UPDATES; ONGOING DISCUSSIONS.
2.1 Delivery of Core Code. Within [ten (10)] days after the Effective Date,
Detto will deliver to Alista the Core Code in Source Code and Object Code
formats. The Core Code will be deemed accepted by Alista upon receipt by
Alista.
2.2 Delivery of Modifications. During the Term, Detto will deliver to
Alista all Detto Modifications created during the previous calendar
quarter within fifteen (15) days after such Detto Modifications pass
all final tests Detto performs for such code. During the Term, Alista
will deliver to Detto all Alista Modifications created during the
previous calendar quarter within fifteen (15) days after such Alista
Modifications pass all final tests Alista performs for such code.
2.3 Updates. During the Term, Detto will update and modify the Core Code as
necessary to ensure that the Core Code remains compatible with the latest
versions of all commercially available software products with which the
Core Code is intended for use, as further described in Exhibit B. Such
updates and modifications will be deemed Alista Modifications.
2.4 Ongoing Discussions. During the Term, and at least quarterly, the parties
will meet together to discuss improvements, enhancements, or other
modifications such party intends to make to the Core Code and future
versions of the Core Code.
3. ASSIGNMENT / LICENSES / OWNERSHIP.
3.1 License of Core Code to Alista. Detto hereby grants to Alista, under all
Detto's intellectual property and proprietary rights, the following
worldwide, exclusive (including as to Detto, but only with regard to the
Enterprise Market), royalty-free, fully-paid-up license to: (1) make, use,
copy, modify, create derivative works, (2) publicly perform or display,
import, broadcast, transmit, distribute, license, offer to sell, and sell,
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rent, lease or lend copies of the Core Code (and derivative works
thereof), and (3) sublicense to third parties the foregoing rights,
including the right to sublicense to further third parties; provided,
however, that Detto grants these rights to Alista solely for the purpose
of exercising such rights in the course of exploiting the Core Code and
Alista Modifications in the Enterprise Market.
3.2 Modifications.
(a) Ownership of Detto Modifications. Detto shall be the owner of and
retain all right, title, and interest in and to any and all Detto
Modifications.
(b) Ownership of Alista Modifications. Alista shall be the owner of and
retain all right, title, and interest in and to any and all Alista
Modifications.
(c) License of Detto Modifications to Alista. Detto hereby grants to
Alista, under all Detto's intellectual property and proprietary
rights, the following worldwide, exclusive (including as to Detto,
but only with regard to the Enterprise Market), royalty-free,
fully-paid-up license to: (1) make, use, copy, modify, create
derivative works, (2) publicly perform or display, import,
broadcast, transmit, distribute, license, offer to sell, and sell,
rent, lease or lend copies of the Detto Modifications (and
derivative works thereof), and (3) sublicense to third parties the
foregoing rights, including the right to sublicense to further third
parties; provided, however, that Detto grants these rights to Alista
solely for the purpose of exercising such rights in the course of
exploiting the Detto Modifications in the Enterprise Market.
(d) License of Alista Modifications to Detto. Alista hereby grants to
Detto, under all Alista's intellectual property and proprietary
rights, the following worldwide, exclusive (including as to Alista,
but only with regard to the non-Enterprise Market), royalty-free,
fully-paid-up license to: (1) make, use, copy, modify, create
derivative works, (2) publicly perform or display, import,
broadcast, transmit, distribute, license, offer to sell, and sell,
rent, lease or lend copies of the Alista Modifications (and
derivative works thereof), and (3) sublicense to third parties the
foregoing rights, including the right to sublicense to further third
parties; provided, however, that Alista grants these rights to Detto
solely for the purpose of exercising such rights in the course of
exploiting the Alista Modifications in the non-Enterprise Market.
3.3 Restrictions on Disclosure of Source Code. Notwithstanding anything else
in this Section 3, neither party will disclose to a third party, without
the prior approval of the other party, the Core Code, Alista
Modifications, or Detto Modifications.
4. COMPENSATION.
As complete and final consideration for the licenses granted hereunder, Alista
will provide compensation to Detto as set forth in Exhibit C.
5. CONFIDENTIALITY.
5.1 Use and Disclosure of Confidential Information. The Receiving Party will
not use any of the Disclosing Party's Confidential Information except to
achieve the objectives of this Agreement. The Receiving Party will not
disclose, give access to, or distribute any of the Disclosing Party's
Confidential Information to any third party, without the prior written
consent of the Disclosing Party. The Receiving Party will take reasonable
security precautions (at least as protective as the precautions it takes
to preserve its own Confidential Information of a similar nature) to keep
the Disclosing Party's Confidential Information confidential.
5.2 Feedback. Either party may from time to time provide suggestions, comments
or other feedback ("FEEDBACK") to the other party with respect to
Confidential Information disclosed to it by the other party. Both parties
agree that notwithstanding anything to the contrary this Agreement, all
Feedback is and shall be entirely voluntary and shall not, absent separate
written agreement, constitute Confidential Information or create any
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confidentiality obligation for the receiving party. Each party shall be
free to use, implement and disclose such Feedback as it sees fit, entirely
without obligation of any kind to the other party, with the sole exception
that the party receiving Feedback will not disclose that the other party
provided such Feedback except with prior written consent. The parties will
discuss in good faith potential cooperation in the event either of them
reasonably believes that it may be possible to protect intellectual
property rights (e.g., patent rights) in any Feedback arising under this
Agreement, and such discussions will include a good faith determination of
how to formalize ownership and license rights in such Feedback consistent
with the intent of this paragraph.
5.3 No Implied Rights. By disclosing Confidential Information to the Receiving
Party, the Disclosing Party does not grant any express or implied rights
to the Receiving Party to or under any of the Disclosing Party's (or any
third party's) patents, copyrights, or trademarks.
5.4 Independent Development. The parties acknowledge that each of them may
currently, or in the future, be developing information internally, or
receiving information from third parties, that is similar to the other
party's Confidential Information.
5.5 Ownership Rights. Both parties agree that each has and shall retain
ownership rights to its own Confidential Information and that upon
completion or termination of this Agreement, and request from the
Disclosing Party, the Receiving Party shall return the Disclosing Party's
Confidential Information regardless of the media in which it is stored.
6. WARRANTIES AND REPRESENTATIONS.
6.1 By Alista. Alista hereby represents and warrants that it has full and
exclusive right and power to enter into and perform according to the terms
of this Agreement, and that such performance shall not violate any other
agreement or applicable law.
6.2 By Detto. Detto hereby represents and warrants that it has full and
exclusive right and power to enter into and perform according to the terms
of this Agreement, and that such performance shall not violate any other
agreement or applicable law.
6.3 NO OTHER WARRANTIES. EXCEPT FOR THOSE WARRANTIES EXPRESSLY PROVIDED IN
THIS SECTION 6, EACH PARTY, ON BEHALF OF ITSELF AND ITS SUPPLIERS, AND
WITH RESPECT TO THE OTHER PARTY AND ALL OTHER PERSONS OF EVERY NATURE
WHATSOEVER, DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO
ANY MATTER WHATSOEVER RELATING TO THIS AGREEMENT, INCLUDING THE CORE CODE
AND ANY OTHER INFORMATION OR MATERIALS EXCHANGED BETWEEN THE PARTIES,
INCLUDING BUT NOT LIMITED TO ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OF REASONABLE CARE
OR WORKMANLIKE EFFORT, OF RESULTS, OF LACK OF NEGLIGENCE, OF A LACK OF
VIRUSES, OR OF ACCURACY OR COMPLETENESS OF RESPONSES, ALL WITH REGARD TO
THE CORE CODE AND ANY OTHER INFORMATION OR MATERIALS EXCHANGED BETWEEN THE
PARTIES. THERE IS NO WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION,
CORRESPONDENCE TO DESCRIPTION, AUTHORITY, OR NONINFRINGEMENT WITH RESPECT
TO THE CORE CODE AND ANY OTHER INFORMATION OR MATERIALS EXCHANGED BETWEEN
THE PARTIES.
7. LIMITATION OF LIABILITY.
EXCEPT FOR BREACHES OF SECTION 5, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR
LOST PROFITS, LOST REVENUES, BUSINESS INTERRUPTION OR CONSEQUENTIAL, INCIDENTAL
DAMAGES OR PUNITIVE DAMAGES. THE FOREGOING LIMITATIONS ARE APPLICABLE
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
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8. TERM/TERMINATION. [XXXX--WE SHOULD DISCUSS IN MORE DETAIL THE OUTCOMES
THAT YOU WISH TO HAVE IF THERE IS A TERMINATION. THE CURRENT DRAFT WOULD
ESSENTIALLY GIVE THE OTHER PARTY THE FREEDOM TO USE THE SOFTWARE WITHOUT
CONDITIONS, BUT THE NON-TERMINATING PARTY WOULD STILL BE RESTRICTED BY
THEIR LICENSES.]
8.1 Term. This Agreement will be effective as of the Effective Date, and will
continue in perpetuity, unless terminated as provided for under this
Agreement.
8.2 Termination by Detto.
(a) Termination by Detto for Cause. Detto may terminate this Agreement
immediately upon written notice at any time if Alista: (i) is in
breach of any warranty, term or condition of this Agreement and has
failed to cure that breach within thirty (30) days after written
notice thereof; (ii) fails to distribute the Enterprise Version in
the Enterprise Market by June 30, 2005; (iii) ceases to market the
Enterprise Version in the Enterprise Market for a period of twelve
(12) months; (iv) experiences an Event of Default; or (v) fails to
update the Core Code as required under Section 2.3 at any time prior
to July 1, 2007.
(b) Effect of Termination by Detto. Upon termination of this Agreement
by Detto:
(i) Section 3.1 shall be deleted in its entirety and replaced with
the following:
"3.1 License of Core Code to Alista. Detto hereby grants to
Alista, under all Detto's intellectual property and
proprietary rights, the following worldwide, non-exclusive,
royalty-free, fully-paid-up license to: (1) make, use, copy,
modify, create derivative works, (2) publicly perform or
display, import, broadcast, transmit, distribute, license,
offer to sell, and sell, rent, lease or lend copies of the
Core Code (and derivative works thereof), and (3) sublicense
to third parties the foregoing rights, including the right to
sublicense to further third parties; provided, however, that
Detto grants these rights to Alista solely for the purpose of
exercising such rights in the course of exploiting the Core
Code and Alista Modifications in the Enterprise Market."
(ii) Section 3.2(c) shall be deleted in its entirety and replaced
with the following:
"(c) License of Detto Modifications to Alista. Detto hereby
grants to Alista, under all Detto's intellectual property and
proprietary rights, the following worldwide, non-exclusive,
royalty-free, fully-paid-up license to: (1) make, use, copy,
modify, create derivative works, (2) publicly perform or
display, import, broadcast, transmit, distribute, license,
offer to sell, and sell, rent, lease or lend copies of the
Detto Modifications (and derivative works thereof) delivered
to Alista during the term of this Agreement, and (3)
sublicense to third parties the foregoing rights, including
the right to sublicense to further third parties; provided,
however, that Detto grants these rights to Alista solely for
the purpose of exercising such rights in the course of
exploiting the Detto Modifications in the Enterprise Market."
(iii)Section 3.2(d) shall be deleted in its entirety and replaced
with the following:
"(d) License of Alista Modifications to Detto. Alista hereby
grants to Detto, under all Alista's intellectual property and
proprietary rights, the following worldwide, exclusive,
royalty-free, fully-paid-up license to: (1) make, use, copy,
modify, create derivative works, (2) publicly perform or
display, import, broadcast, transmit, distribute, license,
offer to sell, and sell, rent, lease or lend copies of the
Alista Modifications (and derivative works thereof) delivered
to Detto during the term of this Agreement, and (3) sublicense
to third parties the foregoing rights, including the right to
sublicense to further third parties."
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(iv) If Detto terminates this Agreement for Alista's failure to
update the Core Code as required under Section 2.3, then
within ten (10) days after termination Alista will pay to
Detto One Hundred Thousand Dollars (US$100,000.00) per year
remaining from the date of termination to July 1, 2007, which
amount shall be prorated on a monthly basis for any partial
years.
(v) The following Sections shall survive and remain in effect: 1,
3 (as amended), 5, 6, 7, 8.2, and 9.
8.3 Termination by Alista.
(a) Termination by Alista for Cause. Alista may terminate this Agreement
immediately upon written notice at any time if Detto (i) is in
breach of any warranty, term or condition of this Agreement and has
failed to cure that breach within ninety (90) days after written
notice thereof; or (ii) experiences an Event of Default (as defined
in Section 8.2(a).
(b) Effect of Termination by Alista for Cause. Upon termination of this
Agreement by Alista pursuant to Section 8.3(a):
(i) Section 3.2(c) shall be deleted in its entirety and replaced
with the following:
"(c) License of Detto Modifications to Alista. Detto hereby
grants to Alista, under all Detto's intellectual property and
proprietary rights, the following worldwide, exclusive
(including as to Detto, but only with regard to the Enterprise
Market), royalty-free, fully-paid-up license to: (1) make,
use, copy, modify, create derivative works, (2) publicly
perform or display, import, broadcast, transmit, distribute,
license, offer to sell, and sell, rent, lease or lend copies
of the Detto Modifications (and derivative works thereof)
delivered to Alista during term of this Agreement, and (3)
sublicense to third parties the foregoing rights, including
the right to sublicense to further third parties; provided,
however, that Detto grants these rights to Alista solely for
the purpose of exercising such rights in the course of
exploiting the Detto Modifications in the Enterprise Market.
(d) License of Alista Modifications to Detto. Alista hereby grants
to Detto, under all Alista's intellectual property and
proprietary rights, the following worldwide, exclusive
(including as to Alista, but only with regard to the
non-Enterprise Market), royalty-free, fully-paid-up license
to: (1) make, use, copy, modify, create derivative works, (2)
publicly perform or display, import, broadcast, transmit,
distribute, license, offer to sell, and sell, rent, lease or
lend copies of the Alista Modifications (and derivative works
thereof) delivered to Detto during term of this Agreement, and
(3) sublicense to third parties the foregoing rights,
including the right to sublicense to further third parties;
provided, however, that Alista grants these rights to Detto
solely for the purpose of exercising such rights in the course
of exploiting the Alista Modifications in the non-Enterprise
Market.
(ii) The following Sections shall survive and remain in effect: 1,
3 (as amended), 5, 6, 7, 8.2, and 9.
(c) Termination by Alista without Cause. Alista may terminate this
Agreement at any time without cause upon thirty (30) days' prior
written notice to Alista.
(d) Effect of Termination by Alista without Cause. Upon termination of
this Agreement by Alista pursuant to Section 8.3(c):
(i) Section 3.1 shall be deleted in its entirety and replaced with
the following:
"3.1 License of Core Code to Alista. Detto hereby grants to
Alista, under all Detto's intellectual property and
proprietary rights, the following worldwide, non-exclusive,
royalty-free, fully-paid-up license to: (1) make, use, copy,
modify, create derivative works, (2) publicly perform or
display, import, broadcast, transmit, distribute, license,
offer to sell, and sell, rent, lease or lend copies of the
Core Code (and derivative works thereof), and (3) sublicense
to third parties the foregoing rights, including the right to
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sublicense to further third parties; provided, however, that
Detto grants these rights to Alista solely for the purpose of
exercising such rights in the course of exploiting the Core
Code and Alista Modifications in the Enterprise Market.
(iii)Section 3.2(c) shall be deleted in its entirety and replaced
with the following:
"(c) License of Detto Modifications to Alista. Detto hereby
grants to Alista, under all Detto's intellectual property and
proprietary rights, the following worldwide, nonexclusive,
royalty-free, fully-paid-up license to: (1) make, use, copy,
modify, create derivative works, (2) publicly perform or
display, import, broadcast, transmit, distribute, license,
offer to sell, and sell, rent, lease or lend copies of the
Detto Modifications (and derivative works thereof) delivered
to Alista during the term of this Agreement, and (3)
sublicense to third parties the foregoing rights, including
the right to sublicense to further third parties; provided,
however, that Detto grants these rights to Alista solely for
the purpose of exercising such rights in the course of
exploiting the Detto Modifications in the Enterprise Market.
(iv) Section 3.2(d) shall be deleted in its entirety and replaced
with the following:
"(d) License of Alista Modifications to Detto. Alista hereby
grants to Detto, under all Alista's intellectual property and
proprietary rights, the following worldwide, exclusive
(including as to Detto), royalty-free, fully-paid-up license
to: (1) make, use, copy, modify, create derivative works, (2)
publicly perform or display, import, broadcast, transmit,
distribute, license, offer to sell, and sell, rent, lease or
lend copies of the Alista Modifications (and derivative works
thereof) delivered to Detto during the term of this Agreement,
and (3) sublicense to third parties the foregoing rights,
including the right to sublicense to further third parties."
(v) Within ten (10) days after the date of termination, Alista
will pay to Detto One Hundred Thousand Dollars (US$100,000.00)
per year remaining from the date of termination to July 1,
2007, which amount shall be prorated on a monthly basis for
any partial years.
(vi) The following Sections shall survive and remain in effect: 1,
3 (as amended), 5, 6, 7, 8.2, and 9.
8.4 Effect of Termination. Upon the termination of this Agreement, each party
will return all originals, copies, reproductions and summaries of the
other party's Confidential Information or at the Disclosing Party's option
and request, destroy the same and provide written certification by an
officer of destruction to the Disclosing Party.
9. GENERAL.
9.1 Relationship of the Parties. Each party in performance of this Agreement
is acting as an independent contractor to the other party and has no
authority to act on behalf of the other party except as expressly provided
in this Agreement. No partnership, joint venture, employment, agency,
franchise, or other form of agreement or relationship is intended.
9.2 Notices. Except as otherwise specified in this Agreement, all notices and
other communications required under this Agreement ("NOTICES") must be
given in a non-electronic record, sent as designated below with costs
prepaid, and will be effective when received by personal delivery, by
next-business-day delivery service with delivery tracking, by registered
or certified mail with return receipt requested, or by facsimile
transmission with receipt confirmed by printed confirmation report. Each
party designates the following for receipt of Notices. This designation
may be changed by providing Notice pursuant to this provision, and each
party agrees to keep its Notice information current:
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FOR NOTICES:
To Detto: To Alista:
Attention: Attention:
---------------------------- ------------------------------
Detto Technologies ---------------------------------------
00000 XX 00xx Xxxxxx, Xxxxx 00 ---------------------------------------
Xxxxxxxx, XX 00000 ---------------------------------------
Fax: Fax:
--------------------------------- ------------------------------------
Copy to: Copy to:
------------------------------ --------------------------------
Fax: Fax:
---------------------------------- ------------------------------------
9.3 Choice of Law; Attorneys' Fees. This Agreement will be governed by and
construed in accordance with the laws of the State of Washington as such
laws apply to contracts performed within Washington by its residents. Any
dispute arising under, in connection with, or incident to this Agreement
or concerning its interpretation will be resolved exclusively in the state
or federal courts located in King County, Washington, and Alista
irrevocably consents to the exercise of jurisdiction by said courts over
Alista. In such a dispute, legal process may be served upon either party
in the same manner as provided in this Agreement for delivery of
non-electronic notices. In any action or suit to enforce any right or
remedy under this Agreement or to interpret any provision of this
Agreement, the prevailing party shall be entitled to recover its costs,
including reasonable attorneys' fees.
9.4 Assignment. Neither party may assign this Agreement or its rights and/or
obligations under this Agreement without the other party's prior written
consent, which will not be unreasonably withheld. Any attempted assignment
of this Agreement or all or part of its rights and/or obligations under
this Agreement without the non-assigning party's prior written consent
shall be void.
9.5 Severability. If a court of competent jurisdiction holds any term,
covenant or restriction of this Agreement to be illegal, invalid or
unenforceable, in whole or in part, the remaining terms, covenants and
provisions will remain in full force and effect and will in no way be
affected, impaired or invalidated. If any provision in this Agreement is
determined to be unenforceable in equity because of its scope, duration,
geographical area or other factor, then the court making that
determination will have the power to reduce or limit such scope, duration,
area or other factor, and such provision will be then enforceable in
equity in its reduced or limited form.
9.6 Waiver. No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent, or subsequent breach of the
same or any other provision hereof, and no waiver shall be effective
unless made in writing and signed by an authorized representative of the
waiving party.
9.7 Headings. The section headings used in this Agreement are for convenience
only and the parties do not intend that they be used in interpreting this
Agreement.
9.8 Entire Agreement. This Agreement is not an offer by Detto and it is not
effective until signed by both parties. This Agreement, including the
Exhibits attached hereto which are incorporated by this reference,
constitutes the entire agreement between the parties with respect to the
subject matter hereof and merges all prior and contemporaneous
communications and proposals, whether electronic, oral or written, between
the parties with respect to such subject matter. This Agreement may not be
modified except by a written agreement dated subsequent to the date of
this Agreement and signed on behalf of Detto and Alista by their
respective duly authorized representatives.
9.9 Authority of Signatory. If Alista is a corporation or other legal entity,
the individual executing this Agreement hereby warrants that he or she is
duly authorized to execute this Agreement on behalf of said corporation or
other legal entity and to fully bind said corporation or other legal
entity to all of the terms and conditions set forth above.
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DETTO TECHNOLOGIES CORPORATION ALISTA
By___________________________________ _______________________________________
(Sign) (Sign)
------------------------------------- ---------------------------------------
Name(Print) Name(Print)
------------------------------------- ---------------------------------------
Title Title
------------------------------------- ---------------------------------------
Date Date
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