BULK REGISTRATION CO-MARKETING AGREEMENT
AGREEMENT
FILED AS EXHIBIT 10.32 TO FORM 10-K
FILED
FOR
YEAR ENDED DECEMBER 31, 2007
This
BULK
REGISTRATION CO-MARKETING AGREEMENT is made and entered into as of December
20,
2007 (the “Effective Date”) by and between Tralliance Corporation, a New York
corporation (“Tralliance”) and Labigroup Holdings, LLC (f/k/a Labitrav, LLC), a
Florida limited liability company (“Labigroup”). Tralliance and Labigroup are
individually referred to herein as a “Party” and collectively as the
“Parties”.
RECITALS:
WHEREAS,
Tralliance is the registry for and is engaged in the business of the marketing
and management of the top-level domain name “.travel” intended for use on the
world wide web or the Internet; and
WHEREAS,
Labigroup is a company that has expertise in the business of creating,
developing, hosting, optimizing, marketing, and managing multiple domain names
and websites for profit; and
WHEREAS,
Tralliance desires to rapidly build a base of “.travel” domain name registered
users and to promote active use of such domain name under a Bulk Purchasing
Program; and
WHEREAS,
Labigroup desires to purchase large blocks of “.travel” domain names under
Tralliance’s Bulk Purchasing Program and to develop websites containing
contextually relevant information about the domains on which they reside for
the
purpose of generating advertising revenue from third parties; and
WHEREAS,
Labigroup has entered into a Domain Name Agreement (the “Domain Name Agreement”)
dated on or about November 1, 2007, with Names Beyond, Inc., an ICANN accredited
“.travel” registrar, which provides price discounts for bulk “.travel” domain
name purchases; and
WHEREAS,
the
Parties wish to enter into a mutually beneficial cost and revenue sharing
arrangement, upon the terms, covenants and conditions set forth
below.
NOW,
THEREFORE,
in
consideration of the mutual promises, benefits and covenants contained herein
and for other good and valuable consideration, the receipt, adequacy and
sufficiency are hereby acknowledged, the Parties, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS.
1.1. “Affiliates”
shall mean, with respect to a specified Person, any other Person that, directly
or indirectly, Controls, is under common Control with, or is Controlled by
such
specified Person.
1.2. “Agreement”
means this Bulk Registration Co-Marketing Agreement.
1.3. “Control”
and its derivatives shall mean legal, beneficial or equitable ownership,
directly or indirectly, of more than fifty percent (50%) of the outstanding
voting capital stock (or other ownership interest, if not a corporation) of
an
entity, or actual managerial or operational control over such
entity.
1.4. “Event
of
Default” means any of the following: (a) any representation or warranty made by
either Party in the Agreement that proves to have been incorrect when made;
(b)
a material breach of the Agreement by either Party, which breach is not cured
within fifteen (15) days after written notice of breach to the breaching Party;
or (c) any situation in which either Party commits a material breach of the
Agreement that is not capable of being cured within ten (10) days and fails
to
(i) proceed promptly and diligently to correct the breach, (ii) develop within
fifteen (15) days following written notice of breach a complete plan for curing
the breach, and (iii) cure the breach within fifteen (15) days of written notice
thereof.
1.5. “ICANN”
means the Internet Corporation for Assigned Names and Numbers.
1.6. “Intellectual
Property” means all intellectual property rights, including by way of
explanation, but not by limitation, those statutory or common law rights in
and
relating to copyrights, patents, trademarks, trade secrets, moral rights, or
any
similar rights.
1.7. “Quarter”
means for the calendar quarter ending December 31, 2007 and for all calendar
quarters thereafter during the term of this Agreement.
1.8. “Registration”
or “Registered” shall mean the initial registration of a “.travel” domain
name.
1.9. “Renewal”
or “Renewed” shall mean the re-registration of a “.travel” domain
name.
| 1.10. |
“Term”
means the period set forth in Section
4.1.
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| 1.11. |
“Transaction”
shall be defined as either a Registration and/or Renewal of a “.travel”
domain name.
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2. OBLIGATIONS.
2.1. Registrar.
All
Registrations or Renewals of a “.travel” domain name by Labigroup during the
Term of the Agreement shall be purchased through an ICANN Accredited Registrar,
under the terms and conditions of the Bulk Purchasing Program.
2.2. Initial
Period.
Commencing
on or after the Effective Date and by no later than September 30, 2008 (“Initial
Period”), Labigroup shall purchase a minimum of *** Registrations (“Initial
Period Registration Minimum”). In purchasing the Initial Period Registration
Minimum, Labigroup shall be permitted to purchase Registrations in blocks of
***
Registrations. For each Registration above the Initial Period Registration
Minimum during the Initial Period, Labigroup shall be permitted to purchase
additional Registrations in blocks of *** Registrations in exchange for the
pricing set forth in Section 3.1.b.3 below.
2.3. Remainder
of Initial Term.
Commencing October 1, 2008 and during the remainder of the Initial Term,
Labigroup must purchase a minimum of *** Transactions per annum (“Yearly
Transaction Minimum”). In purchasing the Yearly Transaction Minimum each year,
Labigroup shall be permitted to purchase Transactions in blocks of ***
Transactions. For each Transaction above the Yearly Transaction Minimum each
year, Labigroup shall be permitted to purchase additional Transactions in blocks
of *** Transactions in exchange for the pricing set forth in Section 3.1.b.3
below.
2.4. Renewal
Periods.
During
both the First Renewal Term or the Second Renewal Term, if applicable, Labigroup
must purchase a minimum of *** Transactions per annum. In purchasing the Yearly
Transaction Minimum each year, Labigroup shall be permitted to purchase
Transactions in blocks of *** Transactions. For each Transaction above the
Yearly Transaction Minimum each year, Labigroup shall be permitted to purchase
additional Transactions in blocks of *** Transactions in exchange for the
pricing set forth in Sections 3.1.c.2 and 3.1.d.2 (as applicable).
2.5. General
Rules.
(a) No
Carry Over.
In the
event that Labigroup purchases Registrations or Transactions in excess of the
applicable annual minimums established in Sections 2.2, 2.3 and 2.4 above,
such
excess Registrations or Transactions shall not apply toward succeeding years’
minimum requirements.
(b) All
Registrations and/or Renewals shall be for periods of one (1) year.
Registrations and/or Renewals in excess of one (1) year shall not be permitted
under this Agreement.
2.6. Quarterly
Report.
No less
than 45 days after the end of a quarter a Quarter, Labigroup shall provide
to
Tralliance (i) a list of all “.travel” Transactions under this Agreement during
that quarter, and (ii) a report summarizing the Total Revenue and Gross Profit
derived by Labigroup from the sale of advertising on all websites developed
for
any “.travel” domain name Registered or Renewed under this Agreement during that
quarter by thirty (30) after the end of each quarter.
2.7. Live
Sites Requirement.
Labigroup shall ensure that by no later than September 30, 2008, at least ***
(***) “.travel” websites are launched. “.travel” web sites will contain
contextually relevant information about the domains on which they reside.
Websites will take on many recognizable forms such as blog, directories, news
and events and many others. The websites will let users research travel to
and
from specific countries, regions and areas, as well bring them up to date on
current events in those areas. Failure to obtain a minimum of *** new “live”
“.travel” websites shall be considered an Event of Default as defined
herein.
3. FEES,
PAYMENTS AND AUDITS.
3.1. Fees
(a) Set-up
Fee.
Labigroup shall pay to Tralliance an initial set-up fee of $37,500.
(b) Initial
Term Fees.
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3.1.b.1.
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Immediately
upon execution of this Agreement, Labigroup shall pay to Tralliance
$225,000. Such payment shall cover the Initial Period Registration
Minimum
as well as the Yearly Transaction Minimum for the annual period from
October 1, 2008 to September 30,
2009.
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3.1.b.2.
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By
no later than October 15, 2008, Labigroup shall pay to Tralliance
$112,500
to cover the Yearly Transaction Minimum for the final year of the
Initial
Term.
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3.1.b.3.
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For
each (i) Registration above the Initial Period Registration Minimum
made
during the Initial Term, or (ii) each Transaction above the Yearly
Transaction Minimum during each subsequent remaining year of the
Initial
Term, Labigroup shall pay to Tralliance *** per Registration or
Transaction (as applicable) purchased by Labigroup by no later than
fourteen
(14) days from the date of Tralliance’s
invoice.
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(c)
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First
Renewal Term.
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3.1.c.1.
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In
the event that Labigroup elects a First Renewal Term as described
in
Section 4.1 below, Labigroup shall pay to Tralliance a total of (i)
$300,000 by no later than October 15, 2010 and an additional (ii)
$300,000
by no later than October 15, 2011 to cover the applicable Yearly
Transaction Minimums for the two years of the First Renewal
Term.
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3.1.c.2.
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For
each Transaction above the Yearly Transaction Minimum during First
Renewal
Term, Labigroup shall pay to Tralliance *** per Transaction purchased
by
Labigroup above such minimum by no later than fourteen
(14) days from the date of Tralliance’s
invoice.
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(d)
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Second
Renewal Term.
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3.1.d.1.
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In
the event that Labigroup elects the Second Renewal Term as described
in
Section 4.1 below, Labigroup shall pay to Tralliance a total of (i)
$450,000 by no later than October 15, 2012, (ii) $450,000 by no later
than
October 15, 2013 and (iii) an additional $450,000 by no later than
October
15, 2014 to cover the applicable Yearly Transaction Minimums for
the three
(3) years of the Second Renewal
Term.
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3.1.d.2.
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For
each Transaction above the Yearly Transaction Minimum during Second
Renewal Term, Labigroup shall pay to Tralliance *** per Transaction
Year
purchased by Labigroup above such minimum by no later than fourteen
(14) days from the date of Tralliance’s
invoice.
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3.2. Other
Direct Costs.
Labigroup shall pay to Tralliance all other direct costs or fees incurred by
Tralliance as a result of Labigroup’s Registration or Renewal of a “.travel”
domain name.
3.3. Royalties.
Labigroup shall pay to Tralliance a royalty of ***% of the Gross Profit derived
by Labigroup during the Term from the sale of advertising on all websites
developed by Labigroup for any “.travel” domain name Registered or Renewed by
Labigroup under this Agreement. All royalties are due and payable to Tralliance
on a Quarterly Basis no later than 30 days after the end of each applicable
calendar quarter during the Term. For purposes of the Agreement, Gross Profit
is
defined as total Advertising Revenue less Cost of Goods Sold, all determined
on
an accrual basis in conformity with United States generally accepted accounting
principles. Cost of Goods Sold includes all website development, hosting,
optimization, maintenance, distribution and content feed, advertising interface,
and any and all costs paid to Tralliance pursuant to Sections 3.1 and 3.2 above,
but specifically excludes the cost of royalties paid or payable to Tralliance
or
any other third party.
3.4. Payment
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(a)
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All
fees are to be paid in U.S. dollars and, when paid, are non-cancelable,
non-contingent and non-refundable.
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(b)
|
In
the event an undisputed payment is not received by the due date set
forth
on an invoice, a late fee of one and one-half percent (1.5%) per
month or
the highest rate allowed under the law, whichever is lower, shall
be
assessed against overdue amounts.
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3.5. Record
Keeping.
Each
Party shall maintain complete, true and accurate records of its accounting,
business, registration and other records regarding its activities under this
Agreement in accordance with U.S. generally accepted accounting principles
and
such party’s business practices. Each Party shall retain such records during the
Term of this Agreement and for six (6) months thereafter.
3.6. Inspection.
During
the Term, and for six (6) months thereafter, each Party shall provide the other,
or its designated representative, upon written request of at least fifteen
(15)
days, and not more than twice per calendar year, access to its records during
normal business hours for the sole purpose of verifying compliance with the
terms of this Agreement.
4.1. Term.
This
Agreement shall commence on the Effective Date
and
shall continue until September 30, 2010 (“Initial Term”). This Agreement shall
automatically renew for an additional two (2) years unless Labigroup provides
4.2. Tralliance
with no less than sixty (60) days written notice prior to the end of the Initial
Term (“First Renewal Term”). Thereafter, this Agreement shall automatically
renew for an additional three (3) years unless Labigroup provides Tralliance
with no less than sixty (60) days written notice prior to the end of the First
Renewal Term (“Second Renewal Term”). Collectively, the Initial Term, First
Renewal Term and Second Renewal Term shall be referred to as the “Term”).
Thereafter, Labigroup shall have the option to renew this Agreement for
additional successive three (3) year periods on the same terms as were in effect
during the Second Renewal Term upon providing written notice to Tralliance
no
later than sixty (60) days prior to the end of the Second Renewal Term or any
succeeding renewal period.
4.3. Material
Breach.
A Party
may terminate this Agreement effective
immediately upon
an
Event of Default by the other Party.
4.4. Necessary
Requirement.
This
Agreement may be terminated in whole or in part and effective immediately,
as
necessary to comply with a requirement by ICANN or an applicable government
authority.
4.5. Insolvency.
Labigroup may immediately terminate this Agreement if Tralliance (a) ceases
to
do business in the normal course for a continuous period of at least thirty
(30)
calendar days, (b) becomes or is declared insolvent or bankrupt, (c) is the
subject of any proceeding related to its liquidation or insolvency (whether
voluntarily or involuntarily) which is not dismissed within ninety (90) calendar
days or (d) makes an assignment for the benefit of creditors.
4.6. Effect.
Termination or expiration of this Agreement refers to the termination of all
the
Parties’ respective commitments and obligations hereunder from and after the
date of termination, but does not relieve the Parties of their obligations
incurred prior to the date of termination. Unless otherwise expressly provided,
the termination or expiration of an Addendum, Exhibit or Schedule shall not
serve to terminate automatically this Agreement. Within thirty (30) days after
the expiration or termination of this Agreement, Labigroup
shall return to Tralliance
or destroy all original and copies (including partial copies) of all
Tralliance
Confidential Information in Labigroup’s possession. Within such time period,
Labigroup
shall certify in writing to Tralliance
its compliance with this provision.
4.7. Survival.
Any
provision that contemplates performance or observance subsequent to any
termination or expiration of this Agreement (in whole or in part) shall survive
any termination or expiration of the Agreement (in whole or in part, as
applicable) and continue in full force and effect.
5. INTELLECTUAL
PROPERTY.
Each
Party retains all right, title and interest in and to its respective
Intellectual Property Rights.
No
licenses will be deemed to have been granted by either Party to any of its
Intellectual Property, except as otherwise expressly authorized in this
Agreement.
6. WARRANTIES/DISCLAIMERS.
6.1. Labigroup
warrants that all information provided by Labigroup as part of the registration
process shall be complete and accurate. Labigroup also warrants that each
registration it makes is being done so in good faith and that it has no
knowledge of it infringing upon or conflicting with the legal rights of a third
party or a third party's registration, trademark or trade name. Labigroup also
warrants that the domain names being registered will not be used in connection
with any illegal activity.
6.2. TRALLIANCE
MAKES NO WARRANTY TO LABIGROUP,
CUSTOMERS, RESELLERS, OR TO ANY OTHER ENTITY, WHETHER EXPRESS, IMPLIED OR
STATUTORY, AS TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, LACK
OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, TITLE,
NONINFRINGEMENT, QUIET ENJOYMENT OR QUIET POSSESSION, OR CORRESPONDENCE TO
DESCRIPTION WITH RESPECT TO ANY CO-MARKETING PROGRAM.
7. LIMITATION
OF LIABILITY.
7.1. Intent.
The
Parties intend for each to be liable to the other only for direct damages
incurred by the non-breaching Party as a result of the breaching Party’s failure
to perform its obligations as required by this Agreement.
7.2. Restriction.
NEITHER
PARTY, NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS,
SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL,
PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO,
LOST
PROFITS, LOSS OF BUSINESS OR ANY OTHER PECUNIARY LOSS, ARISING IN ANY WAY OUT
OF
OR UNDER THIS AGREEMENT, WHETHER IN TORT, CONTRACT OR OTHERWISE, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3. Reliance.
WITHOUT
LIMITING THE FOREGOING, NEITHER PARTY, NOR ITS AFFILIATES, OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS OR ASSIGNS, SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY,
INCLUDING, FOR EXAMPLE, EITHER PARTY’S CUSTOMERS OR RESELLERS, FOR ANY DAMAGES
ARISING IN ANY WAY OUT OF ITS RELIANCE ON OR USE OF CONTENT, INFORMATION, OR
7.4. SERVICES
PROVIDED ON OR THROUGH ANY
CO-MARKETING PROGRAM OR THAT RESULT FROM OR ARE RELATED TO THE SENDING OF
UNSOLICITED E-MAIL OR MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES,
ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF
PERFORMANCE OF ANY KIND.
7.5. Exceptions.
The
limitations set forth in this Article shall not apply with respect to: (a)
fees
due and owing under this Agreement; (b) third-party claims subject to
indemnification; (c) claims arising out of a breach of Intellectual Property
obligations; or (d) claims arising out of a breach of confidentiality
obligations.
7.6. Limitation. Tralliance
liability to Labigroup
arising out of or under this Agreement, whether in contract, tort or otherwise,
shall be limited to the amounts actually paid or matched (including both
principal and interest) to Labigroup
by
Tralliance
at the time that the event resulting in liability occurs.
8. INDEMNIFICATION.
8.1. Obligation.
Each
Party shall, at its own expense, defend or, at its option, settle any claim,
suit or proceeding brought against the other, and its parents, subsidiaries,
Affiliates, officers, directors, shareholders, and members, arising from,
relating to, incurred in connection with, or based on allegations of (a) the
damage, loss or destruction of any real or tangible personal property resulting
from the negligence or willful misconduct of such Party; or (b) such Party’s
breach of its obligations hereunder. In addition, Labigroup agrees to release,
defend, indemnify and hold harmless Tralliance from and against any losses,
damages or costs, including reasonable attorney’s fees, resulting from any
claim, action, proceeding suit or demand arising out of or related to
Labigroup’s registration, renewal, transfer and/or use of the .travel domain
names. The indemnifying Party shall pay the Party seeking indemnification any
damages finally awarded or settlement amounts agreed upon as direct damages
to
the extent based upon such a claim.
8.2. Contingency.
The
indemnification obligations set forth in this Article are contingent on the
Party seeking indemnification providing the other Party with (i) prompt written
notice of a claim subject to indemnification, (ii) control over the defense
and
settlement of such a claim, and (iii) proper and full information and assistance
to settle or defend any such claim.
9. DISPUTE
RESOLUTION.
Any and
all disputes of any nature arising under or in connection with this Agreement,
including requests for specific performance, shall be resolved through binding
arbitration conducted as provided in this Section pursuant to the rules of
the
American Arbitration Association (“AAA”). The arbitration shall be conducted in
the English language and shall occur in the County of Broward, Florida, USA.
There shall be three (3) arbitrators: each party shall choose one arbitrator,
who together will select a third; if the two arbitrators are not able to agree
on a third arbitrator within fifteen (15) calendar days of the designation
of
the second arbitrator, the AAA shall choose the third. The parties shall bear
the costs of the arbitration in equal shares, subject to the right of the
arbitrators to reallocate the costs in their award as provided in the AAA rules.
The parties shall bear their own attorneys’ fees in connection with the
arbitration, and the arbitrators may not reallocate the attorneys’ fees in
conjunction with their award. The arbitrators shall render their decision within
ninety (90) calendar days of the selection of the third arbitrator. Any
litigation brought to enforce an arbitration award shall be brought in a
Commonwealth or federal court in the Xxxxxxx Xxxxxxxx xx xxx Xxxxxxxxxxxx xx
Xxxxxxx Xxxxxx, Xxxxxxx, XXX; however, the parties shall also have the right
to
enforce a judgment of such a court in any court of competent jurisdiction.
For
the purpose of aiding the arbitration and/or preserving the rights of a party
during the pendency of an arbitration, each party shall have the right to seek
temporary or preliminary injunctive relief from the arbitration panel or any
court of competent jurisdiction located in Broward County, Florida, USA, which
shall not be a waiver of this arbitration agreement.
10. MISCELLANEOUS.
10.1. Expenses.
Each
party shall be responsible for its own expenses incurred in connection with
the
performance of its obligations hereunder.
10.2. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida without regard to its principles of conflicts of
laws.
10.3. Severability.
In the
event that any provision of this Agreement shall be unenforceable or invalid
under any applicable law or be so held by applicable court decision,
such
unenforceability or invalidity shall not render this Agreement unenforceable
or
invalid as a whole, and, in such event, such provision shall be changed and
interpreted so as to best accomplish the objectives of such provision within
the
limits of applicable law or applicable court decision.
10.4. Notices.
Any
notice or other communication required or permitted to be delivered to any
party
under this Agreement shall be in writing and shall be deemed properly delivered,
given and received when delivered by hand, by registered mail (return receipt
requested), by courier or express delivery service, by e-mail (against of
receipt of confirmation of delivery) or by telecopier (against receipt of
answerback confirming delivery) during business hours to the address or
telecopier number, or e-mail address set forth beneath the name of such party
below or when delivery as
10.5. described
above is refused by the intended recipient, unless such party has given a notice
of a change of address in writing pursuant to the foregoing.
If
to
Tralliance:
Tralliance
Corporation
000
Xxxx
Xxxxxxx Xxxx., Xxxxx 0000
Xx.
Xxxxxxxxxx, XX 00000
Attention:
Xxxxxx X. Xxxxxxxx
Chief Executive Officer
Phone:
000-000-0000
Fax:
000-000-0000
If
to Labigroup:
Labigroup,
LLC
000
Xxxx
Xxxxxxx Xxxx., Xxxxx 0000
Xx.
Xxxxxxxxxx, XX 00000
Attention:
Xxxxxxx X. Xxxx
Managing Member
Phone:
000-000-0000
Fax:
000-000-0000
10.6. Labigroup
Entities.
Tralliance understands that Labigroup is entering into this Agreement to
purchase “.travel” domain names for its own benefit and for the benefit of its
current and future parent entities, subsidiaries, and/or Affiliates
(collectively, the “Labigroup Entities”). Accordingly, Tralliance agrees that
any “.travel” domain names provided by it to Labigroup hereunder will be
provided by Tralliance for the use and benefit of all Labigroup Entities, and
Tralliance further agrees that any “.travel” domain names Registered or Renewed
hereunder in the name of any Labigroup Entity will be included in any minimum
Registration, Renewal or other minimum requirements hereunder and that all
protective and remedial provisions of this Agreement may be enforced against
Tralliance by any Labigroup Entity.
10.7. Third-Party
Beneficiaries.
Except
as contemplated by Section 10.5 above, this Agreement shall not be construed
to
create any obligation by either party to any non-party to this
Agreement.
10.8. Relationship
of the Parties.
Nothing
in this Agreement shall be construed as creating an employer-employee or agency
relationship, a partnership or a joint venture between the parties.
10.9. Assignment.
Except
as contemplated by Section 10.5 above, Labigroup shall not assign or otherwise
transfer all or any portion of its rights or obligations under this Agreement
without prior written consent of Tralliance.
10.10. Force
Majeure.
Except
for the non-payment of Fees, neither party shall be liable to the other for
any
loss or damage resulting from any cause beyond its reasonable control (a “Force
Majeure Event”) including, but not limited to, insurrection or civil disorder,
war or military operations, national or local emergency, acts or omissions
of
government or other competent authority, compliance with any statutory
obligation or executive order, industrial disputes of any kind (whether or
not
involving either party's employees), fire, lightning, explosion, flood,
subsidence, weather of exceptional severity, equipment or facilities shortages
which are being experienced by providers of telecommunications services
generally, or other similar force beyond such Party’s reasonable control, and
acts or omissions of persons for whom neither party is responsible. Upon
occurrence of a Force Majeure Event and to the extent such occurrence interferes
with either party's performance of this Agreement, such party shall be excused
from performance of its obligations (other than payment obligations) during
the
first six (6) months of such interference, provided that such party uses
commercially reasonable efforts to avoid or remove such causes of nonperformance
as soon as possible.
10.11. Waivers. No
failure on the part of either party to exercise any power, right, privilege
or
remedy under this Agreement, and no delay on the part of either party in
exercising any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of such power, right, privilege or remedy; and no single
or
partial exercise or waiver of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. Neither party shall be deemed to have waived any claim
arising out of this Agreement, or any power, right, privilege or remedy under
this Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such party; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is
given.
10.12. Further
Assurances.
Each
party hereto shall execute and/or cause to be delivered to the other party
hereto such instruments and other documents, and shall take such other actions,
as such other party may reasonably request for the purpose of carrying out
or
evidencing any of the transactions contemplated by this Agreement.
10.13. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
10.14. Entire
Agreement.
This
Agreement, including any Addenda, Exhibits or Schedules hereto, completely
and exclusively state the Agreement of the Parties regarding only to the
particular subject matter contained herein, and supersede all prior agreements
and understandings, whether written or oral, with respect to the subject matter
of this Agreement. This
Agreement shall not be modified except by a subsequently dated written amendment
(e.g., Addendum) or appendix signed on behalf of Tralliance
and
Labigroup
by their
duly authorized representatives.
In
WITNESS
WHEREOF,
the
parties hereto have executed this Agreement as of the date and year set forth
above.
| Tralliance Corporation | Labigroup Holdings, LLC | ||
| By: | By: | ||
|
Name:
Xxxxxx
X. Xxxxxxxx
|
Name:
Xxxxxxx
X. Xxxx
|
||
|
Title:
Chief
Executive Officer
|
Title:
Managing
Member
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