JOINT VENTURE TECHNOLOGY AGREEMENT
THIS JOINT VENTURE TECHNOLOGY AGREEMENT (hereinafter the "Agreement") is
made and entered into as of the _____ day of _________, 1999,
BETWEEN: XML - GLOBAL TECHNOLOGIES, INC., a Colorado corporation having
a place of business at 0000 Xxxx Xxxxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000 (hereinafter "XML-Global")
AND: GNOSIS INC., a Maryland corporation having offices at 00000
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000 (hereinafter
"Gnosis")
AND: XXXXX X. X. XXXXXX, a businessman having a place of business at
00000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000
(hereinafter "Xxxxxx")
WHEREAS, Gnosis and Xxxxxx have developed certain Technology (as defined
herein);
WHEREAS, XML-Global owns one hundred percent of the common stock of
DataXchg, Inc., a Delaware corporation having a business address at
____________________________________ ("DataXchg, Inc.");
WHEREAS, upon the terms and subject to the conditions set forth herein,
the parties wish to further enhance and market the Technology under a joint
venture by having the Technology transferred to DataXchg, Inc. and having
certain shares in DataXchg, Inc. transferred to Xxxxxx; and
WHEREAS, the parties wish to set out in writing the terms and conditions
of their agreements and understandings in respect of such venture;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of
which are conclusively acknowledged by each party, the parties hereby agree as
follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions. Whenever used in this Agreement, unless the context
clearly requires otherwise, the following words and phrases shall have the
following meaning:
"Assignments" means the Assignment instruments set forth in Schedule
"B" attached hereto.
"Business" means any and all commercial and non-commercial
activities and products of each and both of Xxxxxx and Gnosis pertaining to
business-to-business ("B2B") solutions, EDI, or XML/EDI solutions, including,
without limitation, all activities and products pertaining to the software
known as "Xchg" and the e-Business solutions known as "BizTokens".
"Closing Date" has the meaning set forth in Section 2.2 of this
Agreement.
"Consulting Agreement" has the meaning set forth in Section 2.3.2 of
this Agreement.
"Encumbrance" means any claim, lien, pledge, option, charge,
easement, security interest, right-of-way, encumbrance, mortgage, defects of
title, restrictions or other right.
"Intellectual Property Rights" means all copyrights, design rights,
trademark rights and service xxxx rights and goodwill associated therewith,
patent rights, and trade secrets and confidential information (including,
without limitation, inventions, technical data, and methodologies), whether
registered or unregistered, and all applications for registration of any of
the foregoing, and all rights to file such applications, which may subsist
anywhere in the world.
"License Agreement" has the meaning set forth in Section 2.5 of this
Agreement.
"Operative Documents" means the Consulting Agreement, the
Assignments and the License Agreement attached hereto.
"Person" means any person, limited liability company, partnership,
trust, corporation, business, group, government body or agency, or other
entity.
"Technology" means all of the Intellectual Property Rights and
underlying technology owned, developed, or conceived of by Xxxxxx, Gnosis or
both Xxxxxx and Gnosis in relation to the Business, including, without
limitation, all materials, software (including source codes, object codes,
executable codes, scripts and databases) including all software relating to
U.S. Patent No. 5,909,570 and all software known as "Xchg" and "BizTokens",
database schemas, documentation, development plans, design notes, test plans,
test criteria, test suites, implementation plans, data conversion plans, and
system support plans.
ARTICLE 2
TECHNOLOGY AND SHARE TRANSFER
2.1 TRANSFER. On the basis of the representations, warranties,
covenants and agreements and subject to the satisfaction or waiver of the
conditions set forth herein, Xxxxxx and Gnosis agree to and will sell,
transfer, assign and deliver to DataXchg, Inc. all legal and beneficial right,
title and interest in and to the Technology free and clear of all Encumbrances
(collectively, the "Tech Transfer"), and XML-Global agrees to and will sell,
transfer, assign and deliver to Xxxxxx certain Shares in DataXchg, Inc.
representing on the Closing Date sixty percent (60%) of all outstanding shares
of common stock of DataXchg, Inc. (the "Share Transfer"). Xxxxxx and Gnosis
jointly and severally acknowledge that the Share Transfer to Xxxxxx is fair
and reasonable consideration for the Tech Transfer by Xxxxxx and Gnosis.
2.2 TIME AND PLACE OF CLOSING. The closing of the Tech Transfer and the
Share Transfer (the "Closing") shall take place at the offices of
_______________________ on November ___, 1999 or at such other location and on
such other date as is mutually agreed to by XML-Global, Xxxxxx and Gnosis (the
date and time on which the Closing actually occurs is the "Closing Date").
2.3 PERFORMANCE BY GNOSIS AND XXXXXX. On or before the Closing Date (or
on or before such other date that the parties agree to in writing), Xxxxxx and
Gnosis shall ensure that all of the following terms are fulfilled:
2.3.1 Gnosis and Xxxxxx shall duly execute and deliver the
Assignments to DataXchg, Inc..
2.3.2 Xxxxxx, and DataXchg, Inc. shall have entered into a
Consulting Agreement in the form of Schedule "C" (the "Consulting Agreement")
which shall have been duly executed by such parties and shall be in full force
and effect.
2.3.3 All of the terms, covenants, agreements and conditions of
this Agreement to be complied with, performed or satisfied by Gnosis and/or
Xxxxxx on or before the Closing Date shall be duly complied with, performed
and satisfied on or before the Closing Date.
2.4 PERFORMANCE BY XML-GLOBAL. On or before the Closing Date (or on or
before such other date that the parties agree to in writing), XML-Global shall
ensure that all of the following terms are fulfilled:
2.4.1 XML-Global shall have transferred and delivered to Xxxxxx
Shares in DataXchg, Inc. representing on the Closing Date sixty percent (60%)
of all outstanding shares of common stock of DataXchg, Inc..
2.4.2 All of the terms, covenants, agreements and conditions of
this Agreement to be complied with, performed or satisfied by XML-Global on or
before the Closing Date shall be duly complied with, performed and satisfied
on or before the Closing Date.
2.5 LICENSE. Once the Technology is transferred to DataXchg, Inc. by way
of the Assignments in Section 2.3.1, the parties agree that DataXchg, Inc.
shall grant XML-Global a license pursuant to a License Agreement in the form
of Schedule "D" attached hereto (hereinafter the "License Agreement"). The
parties shall execute all necessary documents, take all necessary steps and
provide all necessary assistance to enable and ensure that DataXchg, Inc. duly
executes and delivers the License Agreement to XML-Global and provides XML-
Global with full access to the Technology and improvements and modifications
thereto.
2.6 COMMERCIALISATION. The parties agree that DataXchg, Inc. shall
further develop and commercialise the Technology in conjunction with XML-
Global in accordance with the License Agreement. The parties agree that
DataXchg, Inc. shall provide XML-Global with guidance on and assist in
determining the development paths for the Technology. A royalty from the
sales generated by XML-Global from commercialising products based on the
Technology shall be paid to DataXchg, Inc. pursuant to the License Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF XXXXXX AND GNOSIS
Xxxxxx and Gnosis jointly and severally represent and warrant to XML-
Global as follows:
3.1 ORGANIZATION. Gnosis is a corporation duly organized, validly
existing and in good standing under the laws of Maryland and is authorized to
do business in all jurisdictions where such authorization is necessary.
3.2 POWER AND AUTHORITY. Gnosis and Xxxxxx have the power, capacity and
authority to own, license, make, use and sell the Technology, to conduct the
Business as presently conducted.
3.3 GNOSIS - AUTHORITY FOR AGREEMENT. The execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been authorized by all requisite corporate action on
the part of Gnosis. Gnosis has full corporate power, authority, and legal
right to enter into this Agreement and each other Operative Document to which
it is a party and to consummate the transactions contemplated hereby and
thereby. This Agreement and each other Operative Document to which Gnosis is
a party has been duly executed and delivered by Gnosis and is a legal, valid
and binding obligation of Gnosis, enforceable against Gnosis in accordance
with its terms.
3.4 XXXXXX - AUTHORITY FOR AGREEMENT. Xxxxxx has full and absolute
legal right, capacity, power, and authority to enter into this Agreement and
each other Operative Document to which he is a party, all of which, when
executed and delivered by Xxxxxx as contemplated hereby, will be the legal,
valid and binding obligation of Xxxxxx, enforceable against Xxxxxx in
accordance with their terms.
3.5 NO VIOLATION TO RESULT. The execution, delivery, and performance of
this Agreement and each other Operative Document to which either of Gnosis and
Xxxxxx is a party, and the consummation of the transactions contemplated
hereby and thereby: (i) are not in violation or breach of, do not conflict
with or constitute a default under, and will not accelerate or permit the
acceleration of the performance required by, any of the terms of the Articles
of Incorporation of Gnosis or any contract to which Gnosis or Xxxxxx is a
party or which affects Gnosis or Xxxxxx; (ii) will not be an event which,
after notice or lapse of time or both, will result in any such violation,
breach, conflict, default or acceleration; (iii) will not result in a
violation under any law, judgment, decree, order, rule, regulation, permit or
other legal requirement of any Government or Regulatory Authority, court or
arbitration tribunal whether federal, state, provincial, municipal or local
(within the U.S., Canada or otherwise) at law or in equity, and applicable to
Gnosis or Xxxxxx; and (iv) will not result in the creation or imposition of
any Encumbrances in favor of any Person upon any of the Technology.
3.6 INTELLECTUAL PROPERTY.
3.6.1 Schedule "A" contains a complete and accurate list of (i)
all registered and unregistered Intellectual Property Rights owned, conceived
of or applied for by either or both of Gnosis and Xxxxxx relating to the
Business; and (ii) all computer software owned, conceived of or developed by
either or both of Gnosis and Xxxxxx relating to the Business. Schedule "A"
also contains a complete and accurate list of all licenses and other rights
granted by any of Gnosis and Xxxxxx to any third party with respect to any
Intellectual Property Rights relating to the Business, and all licenses and
other rights granted by any third party to any of Gnosis and Xxxxxx with
respect to any Intellectual Property Rights relating to the Business. Gnosis
and Xxxxxx own all right, title and interest to, or have the right to use
pursuant to a valid license, all Intellectual Property Rights necessary for
the operation of the Business of Gnosis and Xxxxxx as presently conducted,
free and clear of all Encumbrances. The loss or expiration of any
Intellectual Property Rights or related group of Intellectual Property Rights
owned or used by Gnosis and Xxxxxx has not had and would not reasonably be
expected to have an adverse effect on the conduct of the Business, and no such
loss or expiration is threatened, pending or reasonable. Gnosis and Xxxxxx
have taken all necessary and desirable actions to maintain and protect the
Intellectual Property Rights which they own.
3.6.2 Except as set forth in Schedule "A", (i) Gnosis and Xxxxxx
own all right, title and interest in and to all of the Technology free and
clear of all Encumbrances, (ii) there have been no claims made against Gnosis
or Xxxxxx asserting the invalidity, misuse, or unenforceability of any such
Technology, and there are no grounds for same, (iii) each and both of Gnosis
and Xxxxxx have not received any notices of, and are not aware of any facts
which indicate a likelihood of, any infringement or misappropriation by, or
conflict with, any third party with respect to such Technology (including,
without limitation, any demand or request that Gnosis or Xxxxxx license any
rights from a third party), (iv) to the best of Gnosis' and Webbers'
knowledge, the conduct of the Business has not infringed, misappropriated or
conflicted with and does not infringe, misappropriate or conflict with any
Intellectual Property Rights of other Persons, (v) to the best of Gnosis's and
Webbers' knowledge, the Intellectual Property Rights owned by or licensed to
Gnosis and/or Xxxxxx have not been infringed, misappropriated or conflicted by
other Persons.
3.6.3 To the best of Gnosis' and Webbers' knowledge, none of the
employees of Gnosis is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to any
judgment, decree or order of any court or administrative agency, that would
conflict with the Business.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF XML-GLOBAL
XML-Global represents and warrants to Gnosis and Xxxxxx as follows:
4.1 ORGANIZATION. XML-Global is a corporation duly organized, validly
existing and in good standing under the laws of Colorado and is authorized to
do business in all jurisdictions where such authorization is necessary.
4.2 AUTHORITY FOR AGREEMENT. XML-Global has full corporate power,
authority, and legal right to enter into this Agreement and each other
Operative Document to which it is a party and to consummate the transactions
contemplated hereby and thereby. This Agreement and each other Operative
Document to which XML-Global is a party has been duly executed and delivered
by XML-Global and is a legal, valid and binding obligation of XML-Global,
enforceable against XML-Global in accordance with its terms.
4.3 NO VIOLATION TO RESULT. The execution, delivery, and performance of
this Agreement and each other Operative Document to which XML-Global is a
party, and the consummation of the transactions contemplated hereby and
thereby: (i) are not in violation or breach of, do not conflict with or
constitute a default under, and will not accelerate or permit the acceleration
of the performance required by, any of the terms of the Articles of
Incorporation of XML-Global or any contract to which XML-Global is a party or
which affects XML-Global; (ii) will not be an event which, after notice or
lapse of time or both, will result in any such violation, breach, conflict,
default or acceleration; and (iii) will not result in a violation under any
law, judgment, decree, order, rule, regulation, permit or other legal
requirement of any Government or Regulatory Authority, court or arbitration
tribunal whether federal, state, provincial, municipal or local (within the
U.S., Canada or otherwise) at law or in equity, and applicable to XML-Global.
ARTICLE 5
MISCELLANEOUS
5.1 SURVIVAL. The representations, warranties, covenants and agreements
of Gnosis and Xxxxxx contained in this Agreement will terminate on the fifth
anniversary of the Closing Date with respect to the provisions in Sections 3.1
to 3.6 and 4.1 to 4.3. This Section 5.1 shall not limit in any covenant or
agreement of the parties which by its terms contemplates performance after the
Closing Date, which shall survive for the respective periods specified in such
covenant or agreement.
5.2 SCHEDULES. This Agreement includes the following schedules which
are incorporated into and form an integral part of this Agreement: (a)
Schedule "A" entitled "Technology"; (b) Schedule "B" entitled "Assignments";
(c) Schedule "C" entitled "Consulting Agreement"; (d) Schedule "D" entitled
"License Agreement".
5.3 NOTICES. Any notice required or permitted to be given under this
Agreement shall be made in writing and shall be deemed to have been given if
it is in writing and is delivered in person, sent by same day or overnight
courier, or mailed by certified or registered mail, return receipt requested,
postage prepaid, addressed to the party at its address set forth first above
or at such other address as such party may subsequently furnish to the other
party by notice hereunder. Notices will be deemed effective on the date of
delivery in the case of personal delivery, or two (2) business days after
mailing or courier pickup.
5.4 GOVERNING LAW. This Agreement shall be construed, enforced,
performed and in all respects governed by and in accordance with the laws of
the State of Delaware. The parties hereto submit and attorn to the exclusive
jurisdiction of the courts of the State of Delaware.
5.5 WAIVER. No waiver by any party of any term or condition of this
Agreement or any breach thereof shall be made effective unless made in writing
and signed by the party purporting to give the waiver. No waiver by any party
of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term
or condition of this Agreement on any future occasion.
5.6 SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable shall be deemed automatically amended so that it is
enforceable to the maximum extent permissible under the laws of that
jurisdiction without invalidating the remaining provisions hereof.
5.7 SPECIFIC ENFORCEMENT. Each party acknowledges that money damages
would be inadequate for any breach of the provisions of this Agreement. Upon
a breach or threatened breach of the terms, covenants or conditions of this
Agreement by any of the parties hereto, the other parties shall, in addition
to all other remedies, be entitled to a temporary or permanent injunction,
without showing any actual damage, or a decree for specific performance, in
accordance with the provisions hereof.
5.8 FURTHER ASSURANCES. Each of the parties shall execute all further
documents and instruments and do all further and other things as may be
necessary to implement and carry out the terms of this Agreement.
5.9 NON-MERGER. Except as otherwise expressly provided in this
Agreement, the covenants, representations and warranties contained herein
shall not merge with and shall survive the Closing in accordance with the
express terms of this Agreement and shall continue in full force and effect.
The Closing shall not prejudice any right of one party against any other party
in respect of anything done or omitted under this Agreement or in any respect
of any right to damages or other remedies.
5.10 SUCCESSORS, ASSIGNS AND THIRD PARTIES. This Agreement shall inure
to the benefit of and be binding upon the parties and their respective
successors and permitted assigns. Gnosis and Xxxxxx may not make any
assignment of this Agreement or any interest herein without the prior written
consent of XML-Global. This Agreement may be assigned by XML-Global to a
third party with the prior written consent of Xxxxxx. Xxxxxx shall not
assign, transfer, or sell any of the Shares that form part of the Share
Transfer (the "Xxxxxx Shares"), any right, title or interest in the Xxxxxx
Shares, or subject any of the Xxxxxx Shares to any Encumbrances, without the
prior written consent of XML-Global.
5.11 INDEPENDENT PARTIES. The relationship between XML-Global the other
parties is that of independent contractors. Gnosis, Xxxxxx and its agents
have no authority to bind XML-Global in any way.
5.12 FACSIMILE TRANSMISSION. The parties agree that this Agreement may
be entered into by a party by means of facsimile transmission and, in such an
event, the same shall constitute a legal and binding obligation in the same
manner as if an originally executed version hereof had been delivered by such
party to the other party.
5.13 HEADINGS AND PLURALS. The headings herein have been inserted as a
matter of convenience only and in no way define, limit or enlarge the scope or
meaning of this Agreement or any of its provisions. Unless the context
clearly indicates otherwise, where appropriate the singular shall include the
plural and vice versa, to the extent necessary to give the terms defined
herein and/or the terms otherwise used in this Agreement their proper
meanings.
5.14 ENTIRE AGREEMENT. This Agreement and those documents expressly
referred to herein embody the entire agreement and understanding between the
parties concerning the subject matter hereof and supersede all prior
understandings, communications and agreements between the parties, written or
oral, with respect to the subject matter hereof, and all past courses of
dealing or industry custom. This Agreement may only be amended, supplemented
or modified in a written instrument duly executed by or on behalf of each
party hereto. Time is of the essence in this Agreement and for each and every
term and condition hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed.
GNOSIS, INC. XML-GLOBAL TECHNOLOGIES, INC.
a Maryland corporation a Colorado corporation
By:_____________________________ By:_____________________________
(Authorized Signatory) (Authorized Signatory)
Name: __________________________ Name: __________________________
Title:__________________________ Title:__________________________
Date:___________________________ Date:___________________________
________________________________
XXXXX X.X. XXXXXX
Date:___________________________
SCHEDULE "A"
TECHNOLOGY
1. Patent Rights and Patentable Inventions
---------------------------------------
United States Patent No. 5,909,570, issued June 1, 1999
Title: TEMPLATE MAPPING SYSTEM FOR DATA TRANSLATION
Inventors: Xxxxx X.X. Xxxxxx
2. Software
--------
All software relating to U.S. Patent No. 5,909,570 and all components,
data, algorithms and inventions relating to software known as "Xchg" and
"BizTokens", including, without limitation, all source codes, object
codes, executable codes, databases, scripts, data and documentation
(collectively, the "Software and Documentation").
3. Copyrights
----------
All copyrights in the Software and Documentation.
Copyright Registrations: None applied for.
4. License Rights
--------------
Licenses obtained by either Xxxxxx or Gnosis from third parties: None.
5. Contracts
---------
Contracts that Xxxxxx and/or Gnosis have entered into where either is
using, providing or implementing any of the Software and Documentation or
the inventions covered in U.S. Patent No. 5,909,570: None.
SCHEDULE "B"
ASSIGNMENT
WHEREAS, GNOSIS INC., a Maryland corporation having offices at 00000
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000 (hereinafter "Gnosis") and
XXXXX X.X. XXXXXX, a businessman having an address at 0000 Xxxxxxxxxx Xxx.,
Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter "Xxxxxx") own all legal and beneficial
right, title and interest in and to the Technology (as defined below), and
whereas Gnosis and Xxxxxx (collectively referred to hereinafter as
"Assignors"), have agreed to transfer all such right, title and interest to:
DataXchg, Inc., a Delaware corporation having a business address of
_____________________________________________________ (hereinafter the
"Assignee")
NOW THEREFORE, in consideration of One U.S. Dollar (USD $1.00) and other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the Assignors, the Assignors hereby irrevocably assign,
sell, transfer and grant to the Assignee, and all of the Assignee's successors
and assigns, all right, title, benefit and interest in and to the Technology.
The Assignors shall, at the Assignee's request, promptly assist with and
execute all necessary applications, declarations, verifications, responses,
submissions, assignments and such further documents, and provide such other
acts and assistance, without charge to the Assignee but at the Assignee's
expense, to enable the Assignee or the Assignee's nominees to apply for,
acquire, prosecute, perfect, enforce and/or maintain any and all right, title
and interest in and to the Technology in any and all countries.
For the foregoing, the following terms have the following meaning:
(a) "Technology" means all of the Intellectual Property Rights and
underlying technology owned, developed, or conceived of by Xxxxxx, Gnosis or
both Xxxxxx and Gnosis in relation to the Business, including, without
limitation, all software (including source codes, object codes, executable
codes, scripts, and databases) including all software relating to U.S. Patent
No. 5,909,570 and all software known as "Xchg" and "BizTokens", database
schemas, documentation, development plans, design notes, test plans, test
criteria, test suites, implementation plans, data conversion plans, system
support plans.
(b) "Intellectual Property Rights" means all copyrights, design rights,
trademark and service xxxx rights (and goodwill associated therewith), patent
rights, and trade secrets and confidential information (including, without
limitation, inventions, technical data, and methodologies), whether registered
or unregistered, and all applications for registration of any of the
foregoing, and all rights to file such applications, which may subsist
anywhere in the world.
(c) "Business" means any and all commercial and non-commercial
activities and products of each and both of Xxxxxx and Gnosis pertaining to
business-to-business ("B2B") solutions, EDI, or XML/EDI solutions, including,
without limitation, all activities and products pertaining to the software
known as "Xchg" and the e-Business solutions known as "BizTokens" and
"BizCodes".
IN WITNESS WHEREOF, the Assignors has caused this assignment to be duly
executed.
SIGNED AT
----------------------------------------------------
(City and State)
by GNOSIS INC. this ______ day of _____________________, 1999.
------------------------------------
(Authorized Signatory)
Name:
-------------------------------
Title:
------------------------------
WITNESS:
Signature:
------------------------------------
Name:
------------------------------------
Address:
------------------------------------
------------------------------------
SIGNED AT
-------------------------------------------------------
(City and State)
by XXXXX X.X. XXXXXX this _______ day of _______________________, 1999.
-------------------------------------
Xxxxx X.X. Xxxxxx
WITNESS:
Signature:
---------------------------------------
Name:
---------------------------------------
Address:
---------------------------------------
---------------------------------------
ASSIGNMENT
In consideration of One U.S. Dollar (USD $1.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, I the undersigned, whose full name and post office address is:
XXXXX X.X. XXXXXX, a businessman having an address at 0000 Xxxxxxxxxx Xxx.,
Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter the "Assignor"), do hereby sell,
assign, and transfer to: DataXchg, Inc., a Delaware corporation having a
business address of _______________________________________ (hereinafter the
"Assignee") and to the Assignee's successors and assigns, all legal and
beneficial right, title and interest, for all countries throughout the world,
in and to certain inventions relating to: TEMPLATE MAPPING SYSTEM FOR DATA
TRANSLATION set forth in United States Patent No. 5,909,570 (issued June 1,
1999) for which I, the Assignor, am the sole inventor and owner, and I, the
Assignor do hereby sell, assign, and transfer all right, title and interest in
and to any and all letters patent that may be granted for said inventions.
The Assignor further agrees and undertakes to promptly cooperate with and
execute all necessary applications, declarations, verifications, responses,
submissions, assignments and such further documents, and provide such other
acts and assistance, without charge to the Assignee but at the Assignee's
expense, to enable the Assignee or the Assignee's nominees to apply for,
acquire, prosecute, perfect, enforce and/or maintain any and all right, title
and interest in and to letters patent for said inventions in any and all
countries.
IN WITNESS WHEREOF, the Assignor has caused this assignment to be duly
executed.
SIGNED AT
-------------------------------------------------------
(City and State)
by XXXXX X.X. XXXXXX this _____ day of _________________, 1999.
---------------------------------------
Xxxxx X.X. Xxxxxx
WITNESS:
Signature:
-----------------------------
Name:
-----------------------------
Address:
----------------------------
----------------------------
SCHEDULE "C"
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into as
of this ____ day of ___________, 1999 by and between (i) DataXchg, Inc., a
Delaware corporation having a business address of
___________________________________ (the "Company") and (ii) Xxxxx X.X.
Xxxxxx, a businessman having an address of 0000 Xxxxxxxxxx Xxx., Xxxxxxxxx,
Xxxxxxxx 00000 (the "Consultant").
WHEREAS, pursuant to that certain Joint Venture Technology Agreement (the
"JV Technology Agreement") of even date herewith by and among XML-Global
Technologies, Inc. ("XML-Global"), Gnosis Inc. ("Gnosis") and the Consultant,
the Consultant and Gnosis agreed to transfer the Technology (as defined in the
JV Technology Agreement) to the Company, and XML-Global agreed to transfer to
the Consultant common stock shares in the Company representing sixty percent
(60%) of all outstanding common stock shares of the Company on the Closing
Date of the JV Technology Agreement;
WHEREAS, it is a condition of the closing of the JV Technology Agreement
that the Company and the Consultant enter into this Agreement;
WHEREAS, the Company desires to engage the Consultant to perform certain
duties as shall be assigned to the Consultant by the officers of the Company
from time to time;
WHEREAS, the Consultant desires to be engaged by the Company;
WHEREAS, the Company and the Consultant wish to set out in writing the
terms and conditions of their agreements and understandings in respect of such
engagement; and
WHEREAS, capitalized terms used but not otherwise defined herein shall
have the meaning specified in the JV Technology Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. ENGAGEMENT. The Consultant shall undertake and assume the
responsibility of performing for the Company such duties as shall be assigned
from time to time to the Consultant by the officers of the Company. The
Consultant covenants and agrees that, at all times during the term of this
Agreement, the Consultant shall devote such amount of the Consultant's time as
shall be required for the Consultant to perform promptly, efficiently and
professionally the duties assigned to the Consultant by the officers of the
Company. The Consultant covenants and agrees not to directly or indirectly
engage or participate in any activities at any time during the term of this
Agreement in conflict with the best interests of the Company.
2. TERM. The term of this Agreement shall, subject to earlier
termination in accordance with the terms herein, be for five years commencing
as of the date hereof (the "Term").
3. COMPENSATION. During the Term hereof, as and for compensation for
the services to be rendered for or on behalf of the Company by the Consultant
hereunder, and subject to compliance by the Consultant with all of the
Consultant's representations, covenants and agreements set forth in this
Agreement, the Company shall pay the Consultant for expenses incurred pursuant
to Section 4. Neither party shall charge the other party for services rendered
under this Agreement. During the Term, the Company shall not be obligated,
under any circumstances, to pay for, or keep in effect, any hospitalization,
health, life or other insurance for the benefit of the Consultant.
4. EXPENSES INCURRED. During the Term, the Company shall pay or
promptly reimburse the Consultant for all reasonable travel, telephone and
other business expenses paid or incurred by the Consultant in connection with
the performance of the Consultant's duties hereunder (which expenses must be
pre-approved by the Company), upon presentation of expense statements or other
reasonable evidence of expenses.
5. NONCOMPETITION. The Consultant covenants and agrees that during the
period commencing as of the date hereof and ending on such date which is two
(2) years following the expiration of the Term hereof (the "Covenant Period"),
the Consultant shall not engage in or carry on, directly or indirectly, either
for himself, through a relative or as a member of a partnership or as an
executive, employee, officer, or director of a corporation (other than the
Company or a subsidiary or affiliate of the Company) or as an agent, associate
or consultant of any person, partnership or corporation (other than the
Company or a subsidiary or affiliate of the Company) any business in XML/EDI
or business-to-business (B2B) e-commerce solutions without the Company's
express written consent which the Company will not withhold unless there
exists a reasonable expectation of competitive harm.
6. NON-DISCLOSURE OF INFORMATION.
6.1 For the purposes of this Agreement, "Confidential Information"
means all trade secrets and confidential information pertaining to the
Company's business, including, without limitation, any and all formulae, data,
algorithms, processes, techniques, developments, research, designs, technical
information, business information, documentation in any form or media,
drawings, diagrams, software (including source codes, object codes,
executables, databases, scripts, test data and test results), works in
progress, and any other information, whether in oral, written, graphic,
electronic, optical, or digital form, or any other form, that (i) is in the
Company's possession or is used in the business of the Company, and (ii)
derives actual or potential value from not being generally known or
ascertainable.
6.2 The Consultant acknowledges that in the course of the
Consultant's services to the Company, the Consultant shall or may be making
use of, having access to and/or adding to Confidential Information which is of
a special and unique nature and value to the Company. The Consultant
covenants and agrees that the Consultant shall not, except with the prior
written consent of the Company, at any time during the Consultant's engagement
or following the termination or non-renewal of the Consultant's engagement by
the Company hereunder, for any reason whatsoever, directly or indirectly,
disclose, report, publish, transfer, make available, or use, for any purpose
whatsoever, any of such Confidential Information. Disclosure of any such
Confidential Information of the Company shall not be prohibited if required by
law. The Consultant shall notify the Company promptly of any legal proceeding
that would require disclosure of any Confidential Information so that the
Company may seek an appropriate protective order prior to such disclosure.
7. DEVELOPMENTS. The Consultant covenants and agrees to promptly and
fully disclose to the Company all inventions, discoveries, designs,
developments, modifications, improvements, derivative works, computer programs
in any form, databases, scripts, electronic documents, algorithms, trade
secrets, products, methods, and other items in any form that the Consultant,
solely or jointly, conceives, modifies, enhances, develops or reduces to
practice during the Term, whether or not developed in whole or in part prior
to the execution of this Agreement or outside of Company time, which:
7.1 relate to the Consultant's activities for the Company;
7.2 are suggested by the Consultant's services for which he is
engaged;
7.3 are related, directly or indirectly, to the business, research
or development of the Company; or
7.4 arise as a result of using the resources, facilities,
proprietary information or Confidential Information of the Company,
(collectively, the "Works").
8. ACKNOWLEDGEMENT AND ASSIGNMENT. The Consultant acknowledges that all
Works are works made in the course of or as a result of the Consultant's
services to the Company. The Consultant shall hold in trust for the sole
benefit of the Company, and shall assign and hereby assigns exclusively and
completely to the Company all of the Consultant's legal and beneficial right,
title and interest in and to all Works which involve any contribution from the
Consultant and all Intellectual Property Rights in such Works. The Consultant
hereby waives and shall waive any and all moral rights arising in the Works
and all copyrights therein.
9. ASSISTANCE TO COMPANY. The Consultant shall, at the Company's
request, assist with and execute all necessary instruments, applications,
declarations, verifications, responses, submissions, assignments and do all
other things reasonably requested by the Company, without charge to the
Company but at the Company's expense, to enable the Company or the Company's
nominees to apply for, acquire, prosecute, perfect, enforce and/or maintain
any and all right, title and interest in and to the Works and all Intellectual
Property Rights therein in any country.
10. WORK MADE FOR HIRE. If any one or more of the Works are protectable
by copyright and in any way to fall within the definition of "work made for
hire", as such term is defined in 17 U.S.C. Section101, such Works shall be
considered a "work made for hire", the copyright of which shall be owned
solely, completely and exclusively by the Company. If any one or more of the
Works are entitled to copyright protection and are not considered to be
included in the categories of works covered by the "work made for hire"
definition contained in 17 U.S.C. Section 101, the Consultant shall, by virtue
of this Agreement, assign and transfer completely and exclusively the
copyright in such Works to the Company.
11. RETURN OF MATERIALS. All notes, data, tapes, diskettes, reference
items, sketches, drawings, memoranda, papers, documents, manuals, software
tools, computer-readable codes in any form, records, and other materials in
any form and on any media, in any way relating to any of the information
disclosed, generated or obtained pursuant to this Agreement (including,
without limitation, any Confidential Information or Works) or pursuant to any
Company activities shall belong exclusively to the Company (collectively, the
"Company Materials") and the Consultant agrees to turn over to the Company all
originals and copies of such Company Materials in the Consultant's possession
or control at the request of the Company or, in the absence of such a request,
upon the termination of the Consultant's engagement with the Company.
12. NON-SOLICITATION. Except if Consultant is acting solely for the
benefit of the Company and the Company's best interests, the Consultant will
not, while engaged with the Company and for a period of two (2) years
thereafter, solicit or attempt to solicit business for any reason, directly or
indirectly, from any customer or client of the Company or any affiliate or
subsidiary of the Company.
13. NON-HIRING. While engaged with the Company and for a period of two
(2) years thereafter, the Consultant will not induce or attempt to influence
directly or indirectly any employee of the Company to terminate his or her
employment with the Company or to work for the Consultant or any other person
or entity.
14. REASONABLENESS OF RESTRICTIONS. THE CONSULTANT HAS CAREFULLY READ
AND CONSIDERED THE PROVISIONS OF SECTIONS 5, 12, 13 AND 15 HEREOF AND, HAVING
DONE SO, AGREES THAT THE RESTRICTIONS SET FORTH ARE FAIR AND REASONABLE AND
ARE REASONABLY REQUIRED FOR THE PROTECTION OF THE INTERESTS OF THE COMPANY,
AND ITS OFFICERS, DIRECTORS, STOCKHOLDERS AND EMPLOYEES.
15. SEVERABILITY. If, in any legal proceeding, the court or tribunal
refuses to enforce all of the separate covenants contained in Sections 5, 12,
and 13 of this Agreement because the time limit is excessive, it is expressly
understood and agreed between the parties hereto that for the purposes of such
proceeding such time limit shall be deemed reduced to the extent necessary to
permit enforcement of such covenants. If, in any legal proceeding, the court
or tribunal refuses to enforce all of the covenants contained in Sections 5,
12, and 13 because they are more extensive (whether as to geographic area,
scope of business or otherwise) than necessary to protect the business and
goodwill of the Company, it is expressly understood and agreed between the
parties hereto that for purposes of such proceeding the geographic area, scope
of business or other aspect shall be deemed reduced to the extent necessary to
permit enforcement of such covenants.
16. TERMINATION. This Agreement may only be terminated by a party in
accordance with the express terms hereof. Either party may terminate this
Agreement with written notice of termination if the other party is in breach
of any covenant hereunder on its part and such other party fails to cure the
breach within sixty (60) days of receiving written notice to cure such breach.
Termination under this Section shall be effective from the date written notice
is delivered to such other party or the date specified in the written notice
of termination, whichever is later. Upon termination of this Agreement, the
Consultant shall return to the Company all Company Materials and shall cease
all use of such Company Materials, Works and Confidential Information.
17. SURVIVAL. In the event of termination or expiration of this
Agreement for any reason, Sections 6, 9, 11, and 16 together with all
provisions of this Agreement necessary the interpretation and enforcement of
same (to the extent such provisions are necessary for such interpretation
and/or enforcement) shall survive this Agreement. Neither party shall be
liable to the other for damages of any sort resulting solely from such party
terminating this Agreement in accordance with its terms. This Section 17
shall not limit in any covenant or agreement of the parties which by its terms
contemplates performance after termination, which shall survive for the
respective periods specified in such covenant or agreement.
18. NOTICES. Any notice required or permitted to be given under this
Agreement shall be made in writing and shall be deemed to have been given if
it is in writing and is delivered in person, sent by same day or overnight
courier, or mailed by certified or registered mail, return receipt requested,
postage prepaid, addressed to the party at its address set forth first above
or at such other address as such party may subsequently furnish to the other
party by notice hereunder. Notices will be deemed effective on the date of
delivery in the case of personal delivery, or two (2) business days after
mailing or courier pickup.
19. GOVERNING LAW. This Agreement shall be construed, enforced,
performed and in all respects governed by and in accordance with the laws of
the State of Delaware. The parties hereto submit and attorn to the exclusive
jurisdiction of the courts of the State of Delaware.
20. SEVERABILITY. Subject to Section 15, any provision of this
Agreement which is prohibited or unenforceable shall be deemed automatically
amended so that it is enforceable to the maximum extent permissible under the
laws of that jurisdiction without invalidating the remaining provisions
hereof.
21. SPECIFIC ENFORCEMENT. Each party acknowledges that money damages
would be inadequate for any breach of the provisions of this Agreement. Upon
a breach or threatened breach of the terms, covenants or conditions of this
Agreement by any of the parties hereto, the other parties shall, in addition
to all other remedies, be entitled to a temporary or permanent injunction,
without showing any actual damage, or a decree for specific performance, in
accordance with the provisions hereof.
23. FURTHER ASSURANCES. Each of the parties shall execute all further
documents and instruments and do all further and other things as may be
necessary to implement and carry out the terms of this Agreement.
24. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the parties and their respective successors and
permitted assigns. The Consultant may not make any assignment of this
Agreement or any interest herein without the prior written consent of the
Company. The Company may assign its interests hereunder without the prior
written consent of the Consultant.
25. INDEPENDENT PARTIES. The relationship between the Consultant and the
Company is that of independent contractors, and not that of an
agent/principal, employee/employer, or co-venturers. In addition, it is
understood and agreed by the parties hereto that the Consultant shall not be
treated as an employee for U.S. federal, state and local tax purposes. The
Consultant hereby represents and warrants to the Company that the Consultant
is an independent contractor for U.S. federal, state and local tax purposes.
The Consultant covenants and agrees to pay any and all U.S. federal, state and
local taxes required to be paid by an independent contractor.
26. HEADINGS AND PLURALS. The headings herein have been inserted as a
matter of convenience only and in no way define, limit or enlarge the scope or
meaning of this Agreement or any of its provisions. Unless the context
clearly indicates otherwise, where appropriate the singular shall include the
plural and vice versa, to the extent necessary to give the terms defined
herein and/or the terms otherwise used in this Agreement their proper
meanings.
27. FACSIMILE TRANSMISSION. The parties agree that this Agreement may
be entered into by a party by means of facsimile transmission and, in such an
event, the same shall constitute a legal and binding obligation in the same
manner as if an originally executed version hereof had been delivered by such
party to the other party.
28. ENTIRE AGREEMENT. This Agreement and those documents expressly
referred to herein embody the entire agreement and understanding between the
parties concerning the engagement of the Consultant's services which are the
subject matter hereof and supersede all prior understandings, communications
and agreements between the parties, written or oral, with respect to the
subject matter hereof, and all past courses of dealing or industry custom.
This Agreement may only be amended, supplemented or modified in a written
instrument duly executed by or on behalf of each party hereto. Time is of the
essence in this Agreement and for each and every term and condition hereof.
No waiver by any party of any term or condition of this Agreement or any
breach thereof shall be made effective unless made in writing and signed by
the party purporting to give the waiver. No waiver by any party of any term
or condition of this Agreement, in any one or more instances, shall be deemed
to be or construed as a waiver of the same or any other term or condition of
this Agreement on any future occasion.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed.
DATAXCHG, INC.
a Delaware corporation
By:______________________________ _________________________________
(Authorized Signatory) XXXXX X.X. XXXXXX
Name:____________________________ Date:________________________
Title:___________________________
Date:____________________________
SCHEDULE "D"
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is made and entered into as of
this ____ day of ____________, 1999 by and between (i) DataXchg, Inc., a
Delaware corporation having a business address of ______________________ (the
"Licensor") and (ii) XML-Global Technologies, Inc., a Colorado corporation a
Colorado corporation having a place of business at 0000 Xxxx Xxxxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 (the "Licensee").
WHEREAS, pursuant to that certain Joint Venture Technology Agreement (the
"JV Technology Agreement") of even date herewith by and among XML-Global
Technologies, Inc. ("XML-Global"), Gnosis Inc. ("Gnosis") and Xxxxx X.X.
Xxxxxx ("Xxxxxx"), Xxxxxx and Gnosis agreed to transfer the Technology (as
defined in the JV Technology Agreement) to Licensor, and Licensee agreed to
transfer to Xxxxxx common stock shares in the Licensor representing sixty
percent (60%) of all outstanding common stock shares of the Licensor on the
Closing Date of the JV Technology Agreement;
WHEREAS, it is a condition of the closing of the JV Technology Agreement
that Licensor and Licensee enter into this Agreement;
WHEREAS, Licensor desires to grant Licensee a license to the Technology;
WHEREAS, Licensee desires a license to the Technology from Licensor;
WHEREAS, Licensor and Licensee wish to set out in writing the terms and
conditions of their agreements and understandings in respect of such license;
and
WHEREAS, capitalized terms used but not otherwise defined herein shall
have the meaning specified in the JV Technology Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, unless the context
clearly requires otherwise, the following words and phrases shall have the
following meaning:
"Improvements" means any improvements, modifications, or
enhancements to the Technology.
"License Fees" means all amounts paid to Licensee pursuant to the
grant of sublicenses by Licensee with respect to sublicensing the right to
make or sell Products.
"Net Sales" means Licensee's gross revenues received from the sale
or license of software, less taxes, royalties payable to other than the
Licensor, shipping charges, quantity trade discounts and returns.
"Products" means any product(s) that is covered by one or more valid
claims in any patent wholly owned by Licensor, any software program(s)
developed or owned by Licensor and implemented using any of the Technology or
any Improvements, or any software products created in collaboration between
the parties.
2. GRANT. Licensor hereby grants Licensee a sole, perpetual, world-
wide, exclusive license to make, use and sublicense the Technology and any
Improvements thereto, and to make, use and sell products based on the
Technology and any Improvements thereto (collectively, the "License"). The
parties agree that the Licensee shall have the sole right to make, use, sell
and distribute products created or owned by Licensor or created in
collaboration between the parties.
2.1 SOURCE CODE. The parties agree that the Licensor and the
Licensee will not distribute the source code for the "Xchg" and "BizTokens"
software or any jointly developed product, and may only license such source
code with the prior written agreement of both parties.
2.2 ACCESS. Licensee will have full access to the source code for
the "Xchg" and "BizTalk" software, and may subsequently modify, extend,
rewrite and adapt such software as it sees fit for the requirements of the
Licensee's products.
3.1. LICENSOR ROYALTY. In consideration of the licenses granted
hereunder, Licensee agrees to pay Licensor a royalty (the "Licensor Royalty")
equal to:
3.1.1 Twenty percent (20%) of the Net Sales earned by Licensee,
for sales comprising a combination of (1) the sale or license of Products and
(2) any of the Licensee's suite of products, including software licensed from
third parties.
3.1.2 Eighty percent (80%) of the Net Sales earned by Licensee,
for sales composed solely of the sale or license of Products,.
3.2. VERSIONS OFFERED. Only limited evaluation Products may be used for
marketing and promotional purposes. Fully enabled versions of Products will
only be available to customers who have purchased licenses to use such
Products.
4. SALES TAXES. The amounts payable to Licensor and Licensee pursuant
to this Agreement are exclusive of any applicable sales taxes and the payor
(whether Licensor or Licensee) shall be responsible for payment of such taxes.
5. ROYALTY PAYMENTS. The Licensor Royalty and the Licensee Royalty
shall be calculated on a semi-annual calendar basis (the "Royalty Period") and
shall be payable no later than thirty (30) calendar days after the termination
of the preceding half calendar year, i.e. no later than twenty nine (29)
calendar days from the first day of July, and January of each year. For the
purposes of determining Royalty Periods, the first semi-annual calendar period
hereunder shall be an extended period commencing on the date hereof and ending
on July 30, 2000.
6. LICENSOR'S REPRESENTATIONS. Licensor covenants, represents and
warrants to Licensee as follows:
6.1 Licensor is a corporation duly organized, validly existing and
in good standing under the laws of the State of Maryland and is authorized to
do business in all jurisdictions where such authorization is necessary.
6.2 Licensor has full corporate power, authority, and legal right
to enter into this Agreement and this Agreement has been duly executed and
delivered by Licensor to Licensee and is a legal, valid and binding obligation
of Licensor, enforceable against Licensor in accordance with its terms.
6.3 Licensor is the sole owner of the Technology and has all legal
and beneficial title to the Technology free and clear of all encumbrances.
6.4 Licensor will use its best efforts to maintain all existing
patents and patent applications that Licensor owns in respect of the
Technology, at no charge to Licensee.
6.5 Licensor will, at the request of Licensee, continue to
undertake research and development to improve the Products and Technology.
6.6 Licensor will work with Licensee to develop the Technology and
will provide Licensee with guidance on technical matters at Licensee's
request.
6.7 Licensor will not assert, against Licensor, any claim that the
use or sublicense of any Technology or any manufacture, use, sale or
sublicense of any products relating to the Technology in accordance with this
Agreement infringes or violates any intellectual property rights of Licensor
now or hereafter existing.
7. LICENSEE'S REPRESENTATIONS. Licensee covenants, represents and
warrants to Licensor as follows:
7.1 Licensee is a corporation duly organized, validly existing and
in good standing under the laws of Colorado and is authorized to do business
in all jurisdictions where such authorization is necessary.
7.2 Licensee has full corporate power, authority, and legal right
to enter into this Agreement and this Agreement has been duly executed and
delivered by Licensee to Licensor and is a legal, valid and binding obligation
of Licensee, enforceable against Licensee in accordance with its terms.
7.3 Licensee shall make reasonable efforts to market and sell
Products based on the Technology and made available by Licensor.
8. PATENT PROTECTION. Licensor retains ownership over the Technology
licensed hereunder and the ability to file additional patent applications and
copyright applications in its developments, which shall form part of the
License. Licensor will, at the Licensee's written request, use its best
efforts to apply for and obtain registered patent and/or copyright protection
for the Technology and/or any Improvements thereto developed or owned by
Licensor. Where Licensee provides a written request that Licensor obtain such
protection or a written request that Licensee participate in such patent
and/or copyright protection, Licensee will pay for the cost of such efforts,
and may obtain reimbursement from Licensor for up to half of such costs.
Licensor hereby grants to Licensee a sole, perpetual, world-wide, exclusive
license to use the Improvements developed or owned by Licensor, to make, use
and sell products based on the Improvements and to sublicense same.
8.1 DEVELOPMENTS BY THE PARTIES. Any developments that the parties
jointly develop will be jointly owned and subject to the royalty provisions of
Section 3.1 and 3.2. Each party must notify the other party of any intentions
to file any patent applications or copyright applications on such joint
developments at least thirty calendar days before making such filings, and
provide the other party with the opportunity to participate and benefit
equally in the rights sought in such applications and registrations and
patents issuing therefrom.
9. CONFIDENTIALITY. Each party hereby acknowledges that trade secrets
and confidential information contained herein or obtained hereby or otherwise
disclosed to the other party have been disclosed or made available in the
strictest confidence and, accordingly, each party hereby covenants and agrees
with the other that they will not disclose or use such information except in
order to fulfill the terms of this Agreement. This Section 9 shall survive
for three (3) years following any termination of this Agreement.
10. TERM AND TERMINATION. This Agreement shall continue until
terminated in accordance with this Section 10. Either party may terminate
this Agreement with written notice of termination if the other party is in
breach of any covenant hereunder on its part and such other party fails to
cure the breach within sixty (60) days of receiving written notice to cure
such breach. Termination under this Section shall be effective from the date
written notice is delivered to such other party or the date specified in the
written notice of termination, whichever is later. Neither party shall be
liable to the other for damages of any sort resulting solely from such party
terminating this Agreement in accordance with its terms.
11. NOTICES. Any notice required or permitted to be given under this
Agreement shall be made in writing and shall be deemed to have been given if
it is in writing and is delivered in person, sent by same day or overnight
courier, or mailed by certified or registered mail, return receipt requested,
postage prepaid, addressed to the party at its address set forth first above
or at such other address as such party may subsequently furnish to the other
party by notice hereunder. Notices will be deemed effective on the date of
delivery in the case of personal delivery, or two (2) business days after
mailing or courier pickup.
12. GOVERNING LAW. This Agreement shall be construed, enforced,
performed and in all respects governed by and in accordance with the laws of
Delaware. The parties hereto submit and attorn to the exclusive jurisdiction
of the courts of the Delaware.
13. WAIVER. No waiver by any party of any term or condition of this
Agreement or any breach thereof shall be made effective unless made in writing
and signed by the party purporting to give the waiver. No waiver by any party
of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term
or condition of this Agreement on any future occasion.
14. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable shall be deemed automatically amended so that it is
enforceable to the maximum extent permissible under the laws of that
jurisdiction without invalidating the remaining provisions hereof.
15. SPECIFIC ENFORCEMENT. Each party acknowledges that money damages
would be inadequate for any breach of the provisions of this Agreement. Upon
a breach or threatened breach of the terms, covenants or conditions of this
Agreement by any of the parties hereto, the other parties shall, in addition
to all other remedies, be entitled to a temporary or permanent injunction,
without showing any actual damage, or a decree for specific performance, in
accordance with the provisions hereof.
16. ARBITRATION. Any unresolved dispute arising out of or in connection
with this Agreement or any breach thereof shall be referred to and finally
resolved by arbitration under the rules of the American Arbitration
Association ("AAA") then in effect. Unless the parties otherwise agree in
writing, all arbitration proceedings hereunder shall be conducted by a three
(3) person arbitration panel, with one arbitrator selected by Xxxxxx, one
arbitrator selected by XML-Global and a third arbitrator selected the by the
two arbitrators selected by Xxxxxx and XML-Global. If XML-Global or Xxxxxx
fails to appoint its arbitrator within sixty (60) days after receipt of notice
of the appointment by the other of its arbitrator, or if the arbitrators fail
to appoint a third, then the third arbitrator shall be appointed by the AAA.
All arbitrators shall be neutral, independent, disinterested, unbiased
arbitrators, bound by the Rules of Ethics of the ABA or AAA for neutral
arbitrators, and none shall have ex parte communications with parties. Each
arbitration shall be conducted at a location selected by the arbitrators or,
if no location can be agreed to by the arbitrators, at a location selected by
the AAA. In each arbitration: (a) on any issue where the relevant information
is in the possession of one party and another party has the burden of proof,
the party having the information shall yield such discovery as is appropriate
to ensure a fair determination of the issue; (b) oral discovery depositions,
interrogatories and requests for admissions, as well as examinations of
witnesses by the parties and the arbitrators shall be permitted; (c) a written
transcript of all hearings shall be made and furnished to the parties at a
cost borne equally amongst the parties; (d) evidence, arguments and
submissions shall be held in confidence by the parties, their counsel and the
arbitrators; and (e) the parties agree that exclusion of evidence by the
arbitrators on the grounds of irrelevance, redundance, or prejudice beyond its
probative value shall not be grounds of failure to confirm and enforce an
award arising from such arbitration. The arbitrators shall not have the
authority to add to, detract from, or modify any provision hereof nor to award
punitive damages to any injured party. A decision by a majority of the
arbitration panel shall be final and binding. It is agreed by the parties
that the arbitrators shall render an award in any arbitration within sixty
(60) days of the close of evidence or any post-evidence briefing argument.
The language of any arbitration shall be English. The prevailing party in any
arbitration or legal action arising out of or related to this Agreement shall
be entitled, in addition to any other rights and remedies it may have, to
reimbursement for its expenses incurred in such arbitration or action,
including court costs and reasonable lawyer's fees. Judgment may be entered
on the arbitrators' award in any court having jurisdiction. Notwithstanding
the foregoing, the parties shall be entitled to seek injunctive or other
equitable relief from any court of competent jurisdiction, without the need to
resort to arbitration.
17. FURTHER ASSURANCES. Each of the parties shall execute all further
documents and instruments and do all further and other things as may be
necessary to implement and carry out the terms of this Agreement.
18. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the parties and their respective successors and
permitted assigns. Neither party may assign its interests hereunder without
the prior written consent of the other party.
19. INDEPENDENT PARTIES. The relationship between the parties is that of
independent contractors.
20. HEADINGS AND PLURALS. The headings herein have been inserted as a
matter of convenience only and in no way define, limit or enlarge the scope or
meaning of this Agreement or any of its provisions. Unless the context
clearly indicates otherwise, where appropriate the singular shall include the
plural and vice versa, to the extent necessary to give the terms defined
herein and/or the terms otherwise used in this Agreement their proper
meanings.
21. FACSIMILE TRANSMISSION. The parties agree that this Agreement may
be entered into by a party by means of facsimile transmission and, in such an
event, the same shall constitute a legal and binding obligation in the same
manner as if an originally executed version hereof had been delivered by such
party to the other party.
22. ENTIRE AGREEMENT. This Agreement and those documents expressly
referred to herein embody the entire agreement and understanding between the
parties concerning the subject matter hereof and supersede all prior
understandings, communications and agreements between the parties, written or
oral, with respect to the subject matter hereof, and all past courses of
dealing or industry custom. This Agreement may only be amended, supplemented
or modified in a written instrument duly executed by or on behalf of each
party hereto. Time is of the essence in this Agreement and for each and every
term and condition hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed.
DATAXCHG, INC. XML-GLOBAL TECHNOLOGIES, INC.
a Delaware corporation a Colorado corporation
By:_______________________________ By:_____________________________
(Authorized Signatory) (Authorized Signatory)
Name:_____________________________ Name: __________________________
Title:____________________________ Title:__________________________
Date:_____________________________ Date:___________________________
