EXHIBIT 10.15
XXXXXXXXXXXXXX.XXX
DISTRIBUTION AND MARKETING RIGHTS
AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of September 15 1999,
(the "Effective Date") by and between (i) HRONLINE, INC. (to become
XxXxxxXxxxxxxx.xxx, Inc.), a Delaware corporation with its principal offices at
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("XXX.xxx"), and (ii)
Avert, INC., a Colorado corporation with its principal offices at 301 Remington,
Ft. Xxxxxxx, XX 00000 ("Avert").
RECITALS
WHEREAS, XXX.xxx owns and manages a business on the World Wide Web at the
domain names XxXxxxXxxxxxxx.xxx and xxx.xxx, which will offer certain products
and services to businesses, and to individuals employed by or owning such
businesses;
WHEREAS, Avert provides services including background investigations and
WHEREAS, Avert and XXX.xxx would like to offer Avert's services through the
Site.
NOW THEREFORE, in consideration of the mutual covenants of the Parties and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties, intending to be legally bound, agree as
follows:
1. DEFINITIONS
1.1. "Avert Brand Marks" means the Avert name and logo(s), including all
associated artwork, graphics, and icons, trademarks, trade names, and
other Avert product or service designations.
1.2. "Avert Customer(s)" means those End Users and Subscribers who purchase
Services from Avert through the Site or the Co-Branded Pages.
1.3. "Avert User Agreement" means the then-current agreement, substantially
the same as the agreement offered to current Avert prospects and
customers, for End Users to enroll in the Avert services; provided
that XXX.xxx has determined that Avert's then-current agreement is
sufficient in form and content to adequately protect XXX.xxx's
interests and Intellectual Property Rights.
1.4. "XXX.xxx Brand Marks" means all XXX.xxx names and logos, including all
associated artwork, graphics, icons and other XXX.xxx product or
service designations.
1.5. "Co-Branded Page(s)" means those Web pages developed pursuant to this
Agreement and Hosted by Avert, containing both XXX.xxx Brand Marks and
Avert Brand Marks, which are set up for the purpose of selling the
Services under the Avert domain names. "Co-Branded Page(s)" also means
pages developed pursuant to this Agreement hosted by XXX.xxx and
contain both XXX.xxx and Avert Brand Marks.
1.6. "Confidential Information" means any trade secrets relating to either
Party's business, product or service plans, designs, costs, prices,
data, names, finances, marketing plans, business opportunities,
personnel, research development or know-how including all non-public
information embodied in, represented by, compiled or relating to
XXX.xxx or the Services, whether having existed, now existing, or to
be developed or created in the future, whether tangible or intangible,
and whether or how stored, compiled or memorialized physically,
electronically, graphically, photographically or in writing, covered
by this Agreement and acknowledged by the Parties to be valuable,
special and unique assets of the disclosing Party, the disclosure of
which may be materially damaging. "Confidential Information" shall not
include information that: (i) is or becomes generally known or
available by publication, commercial use or otherwise through no fault
of the receiving Party; (ii) is known and has been reduced to tangible
form by the receiving Party at the time of disclosure and is not
subject to restriction; (iii) is independently developed or learned by
the receiving Party; (iv) is lawfully obtained from a third party that
has the right to make such disclosure; or (v) is made generally
available by the disclosing Party without restriction on disclosure.
All Source Code shall be Confidential Information for purposes of this
Agreement.
1.7. "Content" means any and all graphics, text, video, and audio related
to the of Avert services that Avert provides to XXX.xxx for posting on
the Site.
1.8. "End User" means an individual visitor to the Site or the Co-Branded
Page(s).
1.9. "FCRA" means the Fair Credit Reporting Act as amended.
1.10."Intellectual Property Rights" means trade secrets, patents,
copyrights, trademarks, service marks, and similar rights of any type
under the laws of any governmental authority, including, without
limitation, all applications and registrations relating to patents,
copyrights, trademarks and service marks, whether presently existing
or created in the future.
1.11."Objectionable Materials" means any textual or graphical material
including without limitation the Content, the Site, or the Co-Branded
Pages, or material under the control of either party hereto referring
to the Content, the Site, or the Co-Branded Pages that: a) is
factually inaccurate, misleading, or deceptive; b) infringes any
Intellectual Property Rights of any third party; c) is libelous,
defamatory, obscene, sexually explicit or pornographic, intended to
harass or annoy, or which violates any civil or criminal laws.
1.12."Services" means all products and services and the accompanying price
list provided by Avert and listed in Schedule A.
1.13."Subscribers" means those End Users who subscribe to the XXX.xxx Site
or services.
2. GRANT OF LICENSES
2.1. Avert hereby grants and licenses to XXX.xxx the non-exclusive,
non-transferable, license to market, promote, sublicense, display,
distribute, reproduce, transmit, and create derivative works from the
Content.
2.2. During the term of this Agreement, Avert hereby grants to XXX.xxx a
non-exclusive, royalty-free, worldwide license to reproduce,
distribute, transmit, publicly perform, publicly display and digitally
perform the Avert Brand Marks in conjunction with the Site and in any
other media intended to promote or advertise the availability of the
Services via the Site.
2.3. Use of Brand Marks
2.3.1. XXX.xxx Brand Marks. For the Term, XXX.xxx grants Avert a
non-exclusive, non-transferable license to use, display, and
distribute the XXX.xxx Brand Marks solely in connection with the
use and promotion of the Services and the Site. Avert shall
ensure that any XXX.xxx Brand Marks displayed on any World Wide
Web site that Avert controls links any pages on the Site that
XXX.xxx requests. Avert acknowledges that the XXX.xxx Brand Marks
are the sole property of XXX.xxx. Nothing herein shall grant
Avert any right, title or interest in the XXX.xxx Brand Marks.
The use of the XXX.xxx Brand Marks shall inure to the benefit of
XXX.xxx. Notwithstanding the foregoing, XXX.xxx reserves the
right to approve the form and placement of the XXX.xxx Brand
Marks, such approval not to be unreasonably withheld or delayed.
2.3.2. Avert Marks. For the Term, Avert grants to XXX.xxx a
non-exclusive, non-transferable license to use, display, and
distribute the Avert Brand Marks solely in connection with the
use and promotion of the Services and the Site. XXX.xxx shall
ensure that any Avert Brand Marks displayed on the Site links to
Web sites that Avert controls, and Avert shall supply the URLs
for the Web pages to which XXX.xxx shall link. XXX.xxx
acknowledges that the Avert Brand Marks are the sole property of
Avert. Nothing herein shall grant XXX.xxx any right, title or
interest in the Avert Brand Marks. Notwithstanding the foregoing,
Avert reserves the right to approve the form and placement of the
Avert Brand Marks, such approval not to be unreasonably withheld
or delayed.
2.3.3. The use of the Avert Brand Marks shall inure to the benefit of
Avert.
3. Development, DELIVERY AND TESTING
3.1. Using the marketing materials and the relevant links to Avert pages
and servers XXX.xxx will create, provide, and support web page(s)
within the Site primarily devoted to marketing the Services,
co-branded by XXX.xxx and Avert. Such web pages are subject to the
approval of Avert, which approval shall not be unreasonably withheld.
XXX.xxx shall post Content that relates to the Services, subject to
the terms of this Agreement and to the approval of XXX.xxx, which
approval shall not be unreasonably withheld.
3.2. XXX.xxx reserves the right to remove any Content developed by Avert
pursuant to this Agreement if any such Content: (i) causes any
technical difficulties or interference with the operation or intended
functionalities of the Site; (ii) violates any of XXX.xxx's then
current terms of service, privacy policies, or other policies; (iii)
constitutes Objectionable Materials; (iv) otherwise violates any laws,
rules, or regulations of any jurisdiction.
3.3. Both parties acknowledge that the effectuation and completion of
online transactions related to the Services shall require the
integration of both parties' hardware and software. Therefore, the
parties agree to make reasonable efforts to test and integrate such
hardware and software such that online transactions can be effectuated
and completed.
4. Additional obligations of Avert
Avert shall:
4.1. Provide, develop and maintain Services for use by Avert Customers.
Avert Customers shall receive at least the same level and quality of
service and customer support as any other purchaser of any of Avert's
goods and services. Perform all sign up and set up activities for
Avert Customers hereunder within 48 hours of receipt of an Avert User
Agreement as currently offered to existing Avert prospects and
customers.
4.2. Provide and assist with development of marketing materials and sales
training materials for the Services and the Co-Branded Pages as the
parties may mutually agree.
4.3. In all cases, provide prompt customer support for the Services to
Avert Customers and to XXX.xxx via telephone and email, to a standard
reasonably consistent with the best industry practices.
4.4. Provide copies of all compliance documents in electronic format to
XXX.xxx for distribution to Avert Customers through the Site.
4.5. Inform XXX.xxx in writing within twenty-four (24) hours of changes in
the availability of the Services.
4.6. Provide reasonable assistance to XXX.xxx in integrating links and
marketing content into the XXX.xxx processing environment the Avert
OrderXpert software for processing Avert Customer orders.
4.7. Not release any data, results or information resulting from any
promotional and/or sales activity hereunder to any third party without
the prior express written permission of XXX.xxx. Avert will treat all
such information as Confidential Information.
4.8. Provide the Services, terms and prices to XXX.xxx in a fashion no less
favorable than to any other Web-based reseller of the Services
providing similar functionality and generating similar volumes of
business to Avert.
4.9. Honor, and the Content shall at all times be subject to, any
then-current XXX.xxx privacy notices and policies, terms of service,
design standards, or other policy relating to the Site.
5. Additional Obligations of XXX.XXX
XXX.XXX SHALL:
5.1. Post the Content on the Site within five (5) days of receipt, and
shall market and promote the Services.
5.2. Review, delete edit, create, update and otherwise manage the Site and
the Co-Branded Pages. Avert shall have the right, but not the duty to
review or monitor any such Co-Branded Pages and to provide editorial
and design suggestions.
5.3. Market Advantage Online memberships to its customers and clients, as
Advantage Online is currently defined by Avert. For the duration of
this agreement, XXX.xxx will be entitled to offer the services
currently packaged as Advantage Online even if Advantage Online is
re-configured to offer a lesser selection of services.
5.4. Inform Avert of problems encountered with the Services to the extent
XXX.xxx is made aware of such problems.
5.5. Inform Avert as to new co-branding opportunities and the creation of
new co-branded sites.
5.6. Present service partners that are reputable within their industry and
in no way damage or otherwise impugn the Avert brand through
association via the XXX.xxx site(s). XXX.xxx shall notify Avert about
the inclusion of new service partners at least 30 days in advance of
their placement at the XXX.xxx site.
5.7. Review and otherwise evaluate other Avert products that Avert requests
to be sold through the XXX.xxx site. These products include but are
mot limited to business background checks, drug and related testing
and other services Avert currently offers or may offer in the future.
Should XXX.xxx and Avert agree to market these products through the
XXX.xxx site, the Attached Schedule(s) that include business terms
shall be amended to include these products and the fees associated
with these products.
5.8. Make available to Avert any content in the topical area of "Human
Resources" if this content is made available on the public side of the
Avert site and if it is available or has been offered to other
partners. The provision of this content will be in the form of, but
not limited to, a "co-branded site" operated by XxXxxxXxxxxxxx.xxx and
using the look, feel and graphics of Avert for a selected number of
pages. The complete terms and conditions of the co-branded site are
found in another agreement.
6. USER DATA
6.1. XXX.xxx agrees that individually identifiable data collected via the
Site or the Co-Branded Pages unique to Avert and required as part of
the process of becoming an Avert Member is owned solely by Avert. All
other data collected via the Site for any other product or service
shall be owned by XXX.xxx, or other third parties as designated by
XXX.xxx.
6.2. XXX.xxx will not disclose any Avert-owned information to any third
party without Avert's express permission.
7. TRAINING
7.1. Avert shall, at no cost to XXX.xxx, provide XXX.xxx, in a reasonable
time frame, with initial training, training materials and technical
support to assist XXX.xxx in properly and effectively marketing and
distributing the Services and the Co-Branded Pages.
7.2. Except as otherwise noted thereon, XXX.xxx may reproduce any training
materials originated by Avert. Any such reproductions shall include
any copyright or similar proprietary notices contained in the items
being reproduced.
8. REVENUE SHARING, PAYMENTS, AND REPORTS
8.1. The Parties agree to the revenue sharing provisions set forth as
Attachment A.
8.2. XXX.xxx shall remit to Avert any payments that XXX.xxx receives
through the Site for any Services within thirty (30) days after the
end of the calendar month in which XXX.xxx receives such payments.
XXX.xxx shall provide Avert with a monthly statement detailing the
Services sold and associated payments collected via the Site.
8.3. For Customers and sales who provide payments to Avert for the
Co-Branded Pages, Avert shall remit to XXX.xxx any payments that Avert
receives through the Co-branded Pages for any Services or goods or
services of XXX.xxx within thirty (30) days after the end of the
calendar month in which Avert receives such payments. Avert shall
provide XXX.xxx with a monthly statement detailing the Services and
XXX.xxx goods and services sold and associated payments collected via
the Site.
9. ADvertising and Promotion
9.1. Approvals. Each party shall submit all advertising or promotional
material, press releases, or other publicity matters that mentions or
refers to the other party's name or brand marks to the other party for
approval, which shall not be unreasonably withheld. Notwithstanding
the foregoing, each party may identify the other party as a customer
and strategic partner (but not as an endorsement) in its advertising,
sales promotion, press releases and other publicity matters.
9.2. Names, Keywords, Metatags.
9.2.1. Starting on [the Effective Date] and for the term of this
Agreement, Avert shall include XXX.xxx's name and appropriate
keywords submitted by XXX.xxx related to XXX.xxx's business,
services and products in the links and other tags found on
Avert's publicly available World Wide Web sites available for use
by the public or by Avert strategic partners.
9.2.2. Starting on [the Effective Date] and for the term of this
Agreement, XXX.xxx shall include Avert's name and the names of
Avert Services, and appropriate keywords submitted by Avert
related to Avert's Services in the links and other tags found on
the Site.
11. REPRESENTATIONS AND WARRANTIES
11.1 XXX.xxx represents and warrants to Avert as follows:
11.1.1 XXX.xxx has all right, title, power and licenses necessary to
grant Avert all rights granted in this Agreement.
11.1.2 The Site does not infringe upon or otherwise violate any
copyright, trade secret, trademark, patent, invention, right of
privacy, known third party rights, or non-disclosure requirements
of any third party. In furtherance of these representations,
Avert's reliance thereon, and subject to Sections found below,
XXX.xxx shall indemnify and hold Avert, their officers,
directors, agents, and employees harmless against all claims,
demands, or liabilities of or to third parties arising from or in
connection with XXX.xxx's breach of its representations or
warranties hereunder. This indemnification shall includes Avert's
reasonable attorney's fees and shall survive the expiration or
termination of this Agreement.
11.1.3 The information, services and products presented at the Site
are from sources XXX.xxx considers reliable. However, XXX.xxx
shall not be liable for the truth or accuracy of the information,
products, or services. NO WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE WILL APPLY TO THE INFORMATION, PRODUCTS, OR
SERVICES THAT XXX.XXX PROVIDES AT THE SITE. These disclaimers
must be conveyed to all End Users. and in the Avert Subscriber
Agreement
11.1.4. XXX.XXX AGREES THAT IT IS SOLELY REPSONSIBLE FOR THE
TRANSMISSION OF DATA TO AND FROM THE SITE. EXCEPT AS OTHERWISE
PROVIDED=AVERT SHALL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES,
INCLUDING WITHOUT LIMITATION INDIRECT, CONSEQUENTIAL, SPECIAL,
INCIDENTAL, OR PUNITIVE DAMAGES RESULTING FROM OR CAUSED BY DATA
TRANSMISSION ERRORS OR DELAYS TO OR FROM THE SITE. IN NO EVENT
SHALL DAMAGES EXCEED THE TOTAL SUM PAID TO AVERT DURING THE SIX
MONTHS PRECEDING THE MONTH IN WHICH THE DISPUTE AROSE OR IN WHICH
AVERT WAS NOTIFIED OF THE DISPUTE, WHICHEVER IS EARLIER.
11.2. Avert represents and warrants to XXX.xxx as follows:
11.2.1 Avert has the authority to offer the Services through the Site
and any the Co-Branded Site. Avert has the all rights, title,
power, and licenses necessary to deliver the Services to Avert
Customers and to grant to XXX.xxx all rights granted in this
Agreement.
11.2.2 The Services will comply with all federal, state and local laws
and regulations, including without limitation FCRA, relating to
the Services and the Content and the Co-Branded Pages. Avert
shall provide evidence of any filings and compliance to XXX.xxx.
The Services do not currently, and will not infringe upon or
otherwise violate any copyright, trade secret, trademark, patent,
invention, proprietary information, right of privacy, or
non-disclosure rights of any third party or contain any
Objectionable Materials or otherwise in contravention of law, or
known third party rights. In furtherance of these
representations, XXX.xxx's reliance thereon, and Avert shall
indemnify and hold XXX.xxx, its corporate affiliates, and any
employee or agent thereof harmless against all claims, demands,
or liabilities of third parties arising from or in connection
with Avert's breach of any of its representations or warranties
hereunder. Avert shall control the defense of any such claims,
demands, or liabilities, and XXX.xxx shall provide reasonable
cooperation in any such defense. This indemnification shall
include XXX.xxx's reasonable attorney's fees and shall survive
the expiration or termination of this Agreement.
11.1.3 No other warranties are provided other than as contained in
this Agreement. THE CONTENT ON THE SITE AND CO-BRANDED SITES IS
FURNISHED ON AN "AS IS" BASIS. AVERT MAKES NO REPRESENTATION OR
WARRANTY OF ANY KIND REGARDING SUCH CONTENT, EXCEPT AS PROVIDED
HEREIN. AVERT SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED
WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS
FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY.
11.1.4 The parties agree that data entry, communication and storage
are subject to a possibility of human and machine errors,
omissions, delays and losses. Neither party undertakes any
liability to the other for any such errors, omissions, delays, or
losses.
12. INDEMNIFICATION
12.1 XXX.xxx. XXX.xxx shall indemnify, defend and hold harmless Avert from
any and all damages, liabilities, costs and expenses (including
reasonable attorneys' fees) incurred by Avert arising from or relating
to any third party claim, suit or proceeding alleging that the Site
infringes any third party United States trademark, patent, trade
secret, privacy, copyright or other Intellectual Property Right;
provided that Avert promptly notifies XXX.xxx in writing of any such
claim and promptly tenders full control of the defense and settlement
of any such claim to XXX.xxx at XXX.xxx's expense and with XXX.xxx's
choice of counsel. Avert shall cooperate with XXX.xxx, at XXX.xxx's
expense, in defending or settling such claims and Avert may join in
defense with counsel of its choice at its own expense.
12.2 Avert Services. Avert shall indemnify, defend and hold harmless
XXX.xxx from any and all damages, liabilities, costs and expenses
(including reasonable attorneys' fees) incurred by XXX.xxx arising
from or relating to the marketing, use, or promotion of the Services
provided hereunder. XXX.xxx shall promptly notify Avert in writing of
any such claim and promptly tender the control of the defense and
settlement of any such claim to Avert at Avert's expense and with
Avert's choice of counsel. XXX.xxx shall cooperate with Avert, at
Avert's expense, in defending or settling such claim and XXX.xxx may
join in defense with counsel of its choice at its own expense.
12.3 Mechanics of Indemnity. The indemnifying Party's obligations are
conditioned upon the indemnified Party: (i) giving the indemnifying
Party prompt written notice of any claim, action, suit or proceeding
for which the indemnified Party is seeking indemnity; (ii) granting
control of the defense and settlement to the indemnifying Party; and
(iii) reasonably cooperating with the indemnifying Party at the
indemnifying Party's expense.
13. CONFIDENTIALITY
13.1 Obligation Each Party shall not use any Confidential Information
received from the other Party except as expressly permitted under this
Agreement, and shall not disclose such Confidential Information to any
third party without the other Party's prior written consent, unless
required to do so by court order or other operation of law. Each Party
shall take reasonable measures to prevent the disclosure and
unauthorized use of Confidential Information of the other Party.
13.2 Remedies. Unauthorized use by a Party of the other Party's
Confidential Information will diminish the value of such information.
A breach of this Section 14 shall entitle the non-breaching party to
seek equitable relief to protect its interest herein, including
injunctive relief, as well as money damages.
14. TERM AND TERMINATION
14.1 Term. This Agreement shall commence upon the Effective Date and
continue for one (1) year, unless earlier terminated in accordance
with the provisions of this Agreement. Following the one-year term,
the obligations of Avert to provide the Services shall automatically
renew for another one-year term unless one Party gives the other Party
notice ninety (90) days notice before the end of the ten-current term
that it does not intend to renew this Agreement.
14.2 Termination for Cause. Either Party may terminate this Agreement upon
written notice in the event the other Party materially breaches any of
its obligations under this Agreement and fails to cure such breach
within ten (10) days from written notice.
14.3 Termination for Insolvency. Either Party may terminate this Agreement
immediately upon written notice to the other Party in the event the
other Party (i) ceases to function as a going concern or to conduct
operations in the normal course of business, or (ii) has a petition
filed by or against it under any state or federal bankruptcy or
insolvency law which petition has not been dismissed or set aside
within sixty (60) days of its filing.
14.4 Termination for Substitution of Payroll Processor. Should XXX.xxx
replace ADP as the payroll processor on its branded site, Avert may
terminate this agreement on 30 days notice.
14.5 No Liability. Except as expressly required by law, in the event of
termination of this Agreement, neither Party shall be liable to the
other Party, because of such termination, for compensation,
reimbursement or damages on account of the loss of prospective profits
or anticipated sales or on account of expenditures, inventory,
investments, leases or commitments in connection with the business or
goodwill of XXX.xxx or Avert. Termination shall not, however, relieve
either Party of obligations incurred prior to the termination.
14.6 Survival. The indemnification provisions, the confidentiality
provisions and the miscellaneous provisions shall survive termination
of this Agreement by either Party for any reason.
14.7 No Other Rights/Return of Materials. Upon termination of this
Agreement, each Party will return or destroy, at the other party's
option, all copies of the other party's Confidential Information, and
brand marks in its possession at the time of termination.
15. MISCELLANEOUS PROVISIONS
15.1 Assignment. Neither Party may assign this Agreement without the prior
express written consent of the other Party, except that XXX.xxx may
assign this Agreement to a wholly owned subsidiary or any successor in
interest to all or substantially all of the assets of XXX.xxx. Any
attempted assignment in contravention of this Section 17.1 shall be
null and void. Subject to the foregoing, this Agreement will bind and
inure to the benefit of the Parties, their respective successors and
permitted assigns.
15.2 Should XXX.xxx be acquired or otherwise become affiliated with a
payroll processor in direct competition with ADP, Avert may terminate
this contract on 30 days notice.
15.3 Waiver. No failure or delay by any Party in exercising any right,
power, or remedy under this Agreement, except as specifically provided
herein, shall operate as a waiver of any such right, power or remedy.
15.4 Governing Law; Arbitration. This Agreement shall be governed by the
laws of the State of Maryland, excluding conflict of laws provisions
and excluding the United Nations Convention on Contracts for the
International Sale of Goods. Any dispute arising out of or related to
this Agreement shall be resolved by binding arbitration in Washington,
D.C., conducted in accordance with the Commercial Rules of the
American Arbitration Association. The arbitrator shall have the power
to grant injunctive relief.
15.5 Notices. All notices, demands or consents required or permitted under
this Agreement shall be in writing sent to the parties at the
addresses set forth below. Notice shall be considered delivered and
effective when (i) personally delivered; (ii) the day following
transmission if sent by facsimile; or (iii) one (1) day after posting
when sent by registered private overnight carrier; or (iv) five (5)
days after posting when sent by certified United States mail.
15.6 Independent Contractors. The parties are independent contractors.
Neither of the Parties shall be deemed to be an employee, agent, or
legal representative of the other Party hereto for any purpose and
neither of the Parties hereto shall have any right, power or authority
to create any obligation or responsibility on behalf of the other
Party hereto.
15.7 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be unenforceable, such provision shall be
changed and interpreted so as to best accomplish its original
objectives fullest extent allowed by law. The remaining provisions of
this Agreement shall remain in full force and effect.
15.8 Complete Understanding. This Agreement, including all Schedules
attached hereto, constitutes the final, complete and exclusive
agreement between the Parties with respect to the subject matter
hereof, and supersedes any prior or contemporaneous agreements,
whether written or oral. This Agreement may be amended only in a
writing signed by both parties.
15.9 Counterpart. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument.
15.10 Section Headings. The section headings are for the convenience of the
parties and in no way alter, modify, amend, limit or restrict the
contractual obligations of the parties.
15.11 Force Majeure. Except for Avert's obligation to pay XXX.xxx or
XXX.xxx's obligation to pay Avert hereunder, neither Party shall be
liable to the other Party for any failure or delay in performance
caused by reasons beyond its reasonable control, including but not
limited to acts of nature, earthquakes, fires, strikes or shortages of
materials. 15.12 Notices to XXX.xxx shall be addressed to the
attention of:
XxXxxxXxxxxxxx.xxx, Inc.
Attention:
Facsimile:
With a copy to:
Piper & Marbury, L.L.P.
0000 Xxxxxxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Notices to Avert shall be addressed to the attention of:
AVERT, Inc.
Attention:
Xxxxxxx Xxxx
000 Xxxxxxxxx Xxx.
Xx. Xxxxxxx, XX 00000
Facsimile: 800 237 4011
with a copy to:
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
XXXXXXXXXXXXXX.XXX, INC.
By:
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Xxxxxxx Xxxxxxx
Chairman and CEO
AVERT, INC.
By:
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Name:
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Title:
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