OneSoft Corporation has omitted from this Exhibit 10.26 portions of this
Agreement for which OneSoft Corporation has requested confidential treatment
from the Securities and Exchange Commission. The portions of the Agreement for
which confidential treatment have been requested have been filed separately with
the Securities and Exchange Commission. Such omitted portions have been marked
with an asterisk.
EXHIBIT 10.26
ONESOFT SERVICES AGREEMENT
Number: *****
This OneSoft Services Agreement (this "Services Agreement") is entered into
as of September 14,1999 by and between OneSoft Corporation, a Delaware
corporation having an office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("ONESOFT"), and ▇▇▇▇▇▇▇▇ Publishing, Inc. having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CUSTOMER").
Per Paragraph 16 herein, this Services Agreement may be modified or amended
only by means of a writing executed by both parties.
The parties hereby agree as follows:
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1. DEFINITIONS
(a) "Agreement" means this Services Agreement together with each Scope of
Work and each Change Order, attached to this Services Agreement and executed by
both parties' duly authorized representatives.
(b) "Change Order" means a document in either paper or electronic form
(e.g., e-mail that can be reasonably dated, traced and/or otherwise identified)
that originates from a representative of CUSTOMER, and is accepted by ONESOFT,
authorizing additional services or changes to services under a Scope of Work.
(c) "Data" means data, software, content and other information including,
but not limited to, writings, designs, specifications, reproductions, pictures,
drawings, or other graphical representations, and any works of a similar nature.
(d) "Managed Services" means reoccurring services for which a monthly fee is
charged.
(e) "Objects" means ONESOFT's proprietary reusable software code.
(f) "Scope of Work" means a document attached to this Services Agreement
that describes Services to be provided by ONESOFT (and any additional related
terms and conditions) under this Services Agreement.
(g) "Services" means services to be provided by ONESOFT in accordance with
the Agreement, as specified in Scope(s) of Work and Change Orders.
(h) "Software Product" means any software developed, licensed or delivered
by ONESOFT .
(i) "Tools" means ONESOFT's proprietary information and know-how used at any
time by ONESOFT in the conduct of its business, including without limitation,
technical information, designs, templates, software modules, processes,
methodologies, systems used to create computer programs or software, procedures,
code books, computer programs, plans, or any other similar information including
improvements, modifications or developments thereto.
2. SERVICES, FEES AND GENERAL PAYMENT TERMS
(a) CUSTOMER hereby retains ONESOFT to provide Services in accordance with
the Agreement, as specified on Scope(s) of Work or Change Order(s).
(b) ONESOFT shall use commercially reasonable efforts to perform Services in
a workmanlike manner, in conformity with the professional standards for
comparable services in the industry.
(c) Except as otherwise provided herein or therein, either party may
terminate a Scope of Work or a Change Order, at any time, with or without cause,
by giving thirty (30) days prior written notice to the other party; provided,
however, that, in any event, ONESOFT shall be paid in full for all Services it
performs before termination. CUSTOMER may only terminate a Scope of Work for
Managed Services, without cause, upon its payment of a termination fee in an
amount equal to all fees that would be due, but for the termination, during the
six (6) months after the date of termination. Either party may terminate the
portions of a Scope of Work or a Change Order, that relate to one or more
particular Software Product licenses, immediately upon the termination of such
licenses.
(d) Services under a Scope of Work for Managed Services on a month-to-month
basis shall have an initial term of twelve (12) months from the date such
Services commence, and shall be renewed automatically on a month to month basis,
at ONESOFT's then current rates, until a party provides the other party at least
ninety (90) days advance notice to the contrary.
(e) Except as otherwise provided in a Scope of Work or Change Order,
CUSTOMER shall pay ONESOFT its then-current published rates for Services
provided, as such rates may be adjusted from time to time. All ONESOFT rates are
exclusive of any applicable sales, use, value-added, or other federal, state or
local taxes, or any import duties or tariffs imposed on the subject matter or
transactions under this Agreement, and CUSTOMER shall be responsible for all
such taxes, duties and tariffs, except that ONESOFT shall be responsible for any
corporate franchise
ONESOFT CONFIDENTIAL
taxes imposed on ONESOFT by law and for any taxes based on its net income or
gross receipts.
(f) CUSTOMER agrees to pre-pay the ************ fees for which a monthly fee
is charged ("Managed Services") and to pre-pay a retainer in the amount of
******* of the estimated fees with respect to any other Services. Except as
otherwise provided above or in a Product Schedule or Services Schedule, ONESOFT
shall invoice CUSTOMER for payments due under the Agreement on a monthly basis.
Each ONESOFT invoice shall be due ********** days from the date of invoice.
CUSTOMER acknowledges and agrees that under the terms of the Agreement, no
CUSTOMER purchase order ("PO") is required for the payment of ONESOFT invoices
by CUSTOMER. In the event that a PO is required by CUSTOMER for its internal
processes, (i) CUSTOMER shall issue such PO in a timely manner such that ONESOFT
invoices may be issued and paid in accordance with the provisions of the
Agreement and any failure by CUSTOMER to do so shall not excuse CUSTOMER from
its obligations under the Agreement; and (ii) any terms stated on a PO shall not
apply for purposes of the Agreement and the PO shall be deemed merely to
indicate CUSTOMER's authorization of the Agreement in accordance solely with the
provisions of the Agreement.
(g) CUSTOMER shall pay in full all travel expenses incurred by ONESOFT that
result from providing services to CUSTOMER under the Agreement in geographic
locations other than at a OneSoft facility, subject to CUSTOMER's approval,
which shall not be unreasonably withheld or delayed.
(h) CUSTOMER shall notify ONESOFT of any dispute regarding an invoice within
******** days of the date of invoice. If CUSTOMER fails to notify ONESOFT of any
dispute with respect to an invoice within such ******* period, CUSTOMER shall be
deemed to have accepted the invoice in its entirety. CUSTOMER shall have such
******* day period to resolve the dispute or make payment in full of all amounts
so disputed. ONESOFT shall work with CUSTOMER in good faith to resolve
CUSTOMER's dispute in a timely manner. CUSTOMER shall not have any right to
withhold or setoff any amounts due ONESOFT.
(i) If CUSTOMER fails to pay any ONESOFT invoice in full by the due date,
and if such failure remains uncured ******** days after notice to CUSTOMER by
ONESOFT, ONESOFT may suspend all or any part of its services to CUSTOMER until
payment is received, or, at its discretion, terminate Services in whole or part.
ONESOFT shall incur no liability to CUSTOMER if ONESOFT so suspends or
terminates its services. ONESOFT also reserves the right to charge interest of
****** per month on all amounts past due, and to assert appropriate liens to
ensure payment.
(j) In the event that ONESOFT is substantially the prevailing party in an
action to collect any sum due under the Agreement, ONESOFT shall be entitled to
recover its related costs and expenses (including without limitation reasonable
attornys' fees and court costs) from CUSTOMER.
(k) In the event that CUSTOMER is substantially the prevailing party in an
action to collect any sum due under the Agreement, CUSTOMER shall be entitled to
recover its related costs and expenses (including without limitation reasonable
attorneys' fees and court costs) from ONESOFT.
3. CONFIDENTIAL INFORMATION
(a) Each party acknowledges that it may be the recipient of confidential
information ("Confidential Information") of the other party including, without
limitation, software, computer programs, object code, source code, database
schemas, specifications, flow charts, marketing plans, financial information,
business plans and procedures, the terms of the Agreement, ONESOFT's [Client[?]]
Guide, employee information, and other information that the receiving party may
reasonably understand, from legends, the nature of such information or the
circumstances of its disclosure, to be confidential. Confidential Information
does not include (i) information independently developed by the recipient
without reference to the other party's Confidential Information; (ii)
information in the public domain through no wrongful act of the recipient, or
(iii) information received by the recipient from a third party who was
rightfully in possession of such information and had no obligation to refrain
from disclosing it.
(b) Except as expressly authorized in the Agreement, or as required by law,
the party that is the recipient of Confidential Information of the other party
agrees that during the term hereof, and at all times thereafter, it shall not
use, commercialize or disclose such Confidential Information to any person or
entity, except to its own employees having a need to know and to such other
recipients as the other party may approve in writing. Each party shall use at
least the same degree of care in safeguarding the other party's Confidential
Information as it uses in safeguarding its own Confidential Information, but in
no event shall less than reasonable care be exercised.
(c) All Confidential Information of ONESOFT disclosed to CUSTOMER shall
remain the exclusive property of ONESOFT. All Confidential Information of
CUSTOMER disclosed to ONESOFT shall remain the exclusive property of CUSTOMER.
(d) Each party agrees that it will not remove any proprietary, trademark,
copyright, confidentiality, patent or other intellectual property notice or
marking from an original or any copy of any software, documentation, display,
media or other materials or Confidential Information, delivered or disclosed to
such party, by the other party or under the Agreement.
(e) CUSTOMER agrees that is shall not (nor shall it permit anyone else to)
decompile, disassemble, or modify any software delivered or disclosed to
CUSTOMER by ONESOFT or separate any such software into components or its
component files, or recreate, or attempt to determine the makeup of any such
software. CUSTOMER agrees that all information discovered through any failure to
comply with the next preceding sentence is and shall at all times remain the
exclusive property and Confidential Information of ONESOFT.
(f) In the event that a party is required by law or judicial or
administrative process to disclose Confidential Information of the other party,
such party shall use all reasonable efforts to promptly notify the other party
and allow the party a reasonable opportunity to oppose disclosure. In addition,
a party shall furnish only the portion of the Confidential Information that it
is legally required to disclose and shall use all reasonable efforts to obtain
reliable assurances that confidential treatment will be accorded the
Confidential Information.
4. INTELLECTUAL PROPERTY
ONESOFT CONFIDENTIAL
2
(a) Except as expressly set forth in Section 4(c), nothing in the Agreement
shall be deemed to authorize the CUSTOMER to use any copyright, name, trademark,
service ▇▇▇▇, or patent or other intellectual property right of ONESOFT.
(b) Except as expressly provided in Section 4(c), CLIENT does not acquire
any right or license in ONESOFT's Software Products, Tools or Objects. ONESOFT's
Data, Software Products, Tools and Objects, including all originals and all
copies thereof, regardless of form, are and shall remain the sole and exclusive
property of ONESOFT and shall be deemed its Confidential Information. All
software or modifications (whether or not specially ordered by CLIENT),
developed by ONESOFT, any discoveries made, improvements, adaptations, or
developments by ONESOFT (whether or not at CLIENT's request pursuant to the
Agreement), are and shall remain, the exclusive property of ONESOFT. CUSTOMER
acknowledges that any underlying technology, know-how, or process used in
connection with ONESOFT's Data, Software Products, Tools, or Objects, remains
exclusively the intellectual property of ONESOFT, and certain of the same are
protected by patents or patents pending.
(c) CLIENT shall have a non-exclusive, irrevocable license to use (and to
modify for such use), for internal purposes only (and not (i) on a service
bureau basis or (ii) as an application services provider), any custom
application originally developed for CLIENT under this Agreement, as an
integrated product, for so long as CLIENT has a license to use all Software
Products, Tools and/or Objects necessary to operate the custom application. This
Section 3(c) does not constitute a license to use such Software Products, Tools
and/or Objects, which CLIENT must separately license from ONESOFT as necessary
to use the custom application. CLIENT may not unbundle from the integrated
product any part of the custom application, Software Products, Tools and/or
Objects, apart from use as an integral part of the integrated product.
(d) Nothing in this Agreement shall be deemed to limit ONESOFT's rights to
develop and market functionally comparable products or deliverables based on the
same general concepts, techniques and routines used in connection with any
custom application.
(e) CLIENT acknowledges and agrees that, except as otherwise specified in
this Agreement, ONESOFT is and shall at all times remain the exclusive owner of
all software upon which, and from which, all ONESOFT Managed Services are
provided hereunder.
(f) CLIENT represents and warrants that (A) all Data and other materials
delivered to ONESOFT by CLIENT, and ONESOFT's use thereof in connection with
transactions contemplated under the Agreement, does not and shall not, infringe
any copyright, trademark, trade secret, patent or other intellectual property
right, (B) that CLIENT has the right to use, disclose, publish, translate,
reproduce, and deliver all such Data and other materials, and (C) ONESOFT has
the right to use, disclose, publish, translate, reproduce and deliver all such
Data and other materials in accordance with the Agreement. CLIENT shall
indemnify and hold harmless ONESOFT, its directors, officers, employees and
agents, against any and all losses, liabilities, costs and expenses (including
reasonable attorneys' fees and court costs), arising out of or related to any
claim that Data or other materials, or use, disclosure, publication, translation
or reproduction thereof, infringes a copyright, trademark, trade secret, patent
or other intellectual property right.
(g) With respect to any Data or other materials supplied by CLIENT, ONESOFT
is hereby granted the nonexclusive irrevocable right and license to use the same
in connection with providing Services hereunder. Except as specified in the
preceding sentence, ONESOFT is acquiring no rights in, or title to, the Data or
other materials supplied by CLIENT hereunder.
5. PUBLIC RELATIONS
(a) Either party, after review and consent of the other party (such consent
not to be unreasonably withheld), may issue a press release, regarding this
Agreement, for which the other party agrees to provide a supporting quote. After
review and consent of the other party (such consent not to be unreasonably
withheld), either party may disclose its relationship with the other in its
promotional, advertising, and marketing materials and may use the other party's
standard graphics, logos, imagery, and its name and URL in its promotional,
advertising and marketing materials. CUSTOMER agrees to serve as a reference for
potential press, analysts and prospective customers, when requested by ONESOFT.
ONESOFT may, in its sole discretion, elect to provide CUSTOMER with ownership
graphics and any associated hypertext links, that shall be placed on the web
pages that include functionality of a ONESOFT software product, subject to
CUSTOMER's approval, which shall not be unreasonably withheld or delayed.
6. DISCLAIMER OF WARRANTY AND LIMITATIONS ON LIABILITY
(A) ONESOFT MAKES NO WARRANTY EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS ALL
WARRANTIES EXPRESS OR IMPLIED, WITH RESPECT TO SERVICES OR THE RESULTS OBTAINED
FROM ONESOFT'S WORK, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) UNDER NO CIRCUMSTANCES SHALL ONESOFT BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, STATUTORY, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES,
OF ANY KIND WHATSOEVER, OR FOR ANY LOST PROFITS, BUSINESS OR REVENUE, LOSS OF
USE OR GOODWILL, OR OTHER LOST ECONOMIC ADVANTAGE, ARISING OUT OF OR RELATED TO
THE AGREEMENT OR THE BREACH HEREOF, WHETHER SUCH CLAIMS ARE BASED ON BREACH OF
CONTRACT, STRICT LIABILITY, TORT, ANY FEDERAL OR STATE STATUTORY CLAIM, OR ANY
OTHER LEGAL THEORY, EVEN IF ONESOFT KNEW, SHOULD HAVE KNOWN, OR HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. tHE FOREGOING LIMITATION SHALL SURVIVE AND
APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS DETERMINED TO
HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(c) EXCEPT FOR ONESOFT'S LIABILITY FOR INFRINGEMENT CLAIMS UNDER SECTION
8(a)(iv) OR FOR THE BREACH OF ITS OBLIGATIONS UNDER SECTION 3, THE TOTAL
AGGREGATE LIABILITY OF ONESOFT FOR DAMAGES UNDER THE AGREEMENT SHALL BE LIMITED
TO THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THE AGREEMENT; PROVIDED HOWEVER
THAT, IN ANY EVENT ONESOFT'S LIABILITY FOR DAMAGES RELATING TO ONESOFT
ONESOFT CONFIDENTIAL
3
SERVICES SHALL BE LIMITED TO THE LESSER OF: THE TOTAL AGGREGATE FEES RECEIVED BY
ONESOFT FROM CUSTOMER FOR SERVICES ONESOFT PROVIDED DURING THE THREE (3)
CALENDAR MONTHS PRECEDING THE TIME CUSTOMER'S CLAIM AROSE, OR THE TOTAL
AGGREGATE FEES RECEIVED BY ONESOFT FROM CUSTOMER FOR SERVICES ONESOFT PROVIDED
WITH RESPECT TO THE SCOPE OF WORK UNDER WHICH THE CUSTOMER'S CLAIM AROSE, DURING
THE TWELVE (12) CALENDAR MONTHS PRECEDING THE TIME CUSTOMER'S CLAIM AROSE.
7. AUDIT
CUSTOMER agrees to maintain complete and accurate records containing all
data reasonably required for verification of its compliance with the terms of
the Agreement.
8. INDEMNIFICATION
(a) Except to the extent ONESOFT has acted at CUSTOMER's direction or in
accordance with CUSTOMER's specifications, ONESOFT will indemnify, defend and
hold harmless CUSTOMER from all costs and expenses (including reasonable
attorneys' fees and court costs) arising from a third party claim against
CUSTOMER based on an actual or alleged:
(i) Breach of ONESOFT's representations and warranties;
(ii) Acts or omissions constituting gross negligence or willful
misconduct, committed by ONESOFT;
(iii) Failure by ONESOFT to comply with applicable governmental laws and
regulations; or
(iv) Subject to Section 8(c), Infringement by ONESOFT of United States
patents, United States copyrights, United States trademarks, United States trade
secrets or other United States intellectual property rights.
This Section 8(a) shall not apply to claims arising as a result of CUSTOMER's
improper use of ONESOFT work products or services.
(b) CUSTOMER will indemnify, defend and hold harmless ONESOFT from all costs
and expenses (including reasonable attorneys' fees and court costs) arising from
a third party claim against ONESOFT based on an actual or alleged:
(i) Breach by CUSTOMER of Section 3, 4, 7, 10(b), 17 or 18 of this
Services Agreement;
(ii) Breach of any of CUSTOMER's representations and warranties;
(iii) Act or omission constituting negligence or willful misconduct,
committed by CUSTOMER;
(iv) Infringement by CUSTOMER (or any property or data provided by
CUSTOMER) of any patent, copyright, trademark, trade secret or other
intellectual property right.
(c) If a claim covered under this Section 8 appears likely or is made, the
party against whom the claim is made (hereinafter referred to as the
"Indemnitee") will promptly provide the other party (hereinafter referred to as
the "Indemnitor") with notice of such claim. If a claim for infringement is
made, ONESOFT may elect to avoid the infringement by:
(i) Obtaining the necessary rights for CUSTOMER to continue to use the
intellectual property at issue; or
(ii) Modifying the intellectual property at issue at its expense; or
(iii) Terminating this Services Agreement, applicable Services
Schedule(s), and/or Scope(s) of Work, and equitably adjusting charges under the
Agreement.
9. INJUNCTIVE RELIEF
The parties acknowledge that monetary damages will not be an adequate remedy
if a party breaches its obligations under Sections 3 or 4 or 7 or 10(b) of this
Services Agreement, or Section 3 of any Services Schedule, and such breach will
result in irreparable harm. The parties therefore agree that, in the event of
any such breach, the non-breaching party shall be entitled to appropriate
mandatory or prohibitory injunctive relief against the breaching party, in
addition to any other remedies at law, in equity or under the Agreement. A party
substantially prevailing in an action for injunctive relief under this Section 9
shall be entitled to recover its costs and expenses for obtaining such relief
(including without limitation reasonable attorneys' fees and court costs) from
the other party.
10. TERMINATION
(a) Except as otherwise provided in the Agreement, either party may
terminate the Agreement or any Services Schedule, and/or any related licenses
granted hereunder or thereunder, by giving the other party written notice to
that effect, effective on the date of receipt of such notice, if:
(i) The other party enters into liquidation, whether or not voluntarily,
or a receiver is appointed to all or any material part of its assets, or the
other party becomes bankrupt or insolvent or enters into any arrangement with
its creditors, or takes or suffers any similar action in consequence of debt or
becomes unable to pay its debts as they become due; or
(ii) The other party materially breaches the Agreement and fails to cure
such breach within ten (10) days of delivery to the breaching party of written
notice of such breach.
(b) If a license granted by ONESOFT to CUSTOMER is terminated for any
reason, CUSTOMER shall, on the effective date of such termination, cease using
any and all of the subject matter of the license and CUSTOMER shall promptly
deliver to ONESOFT all originals and all copies of any and all of such subject
matter and any related documentation.
11. FORCE MAJEURE
A party shall be relieved from an obligation (other than the obligation to
make payments or an obligation under Section 3 or 10(b)) while a cause, outside
of its reasonable control, and that it cannot reasonably circumvent, prevents
the performance of such obligation.
12. RELATIONSHIP OF THE PARTIES; CONTENT
ONESOFT CONFIDENTIAL
4
(a) Nothing in the Agreement shall be construed as making either party an
agent of the other party, and neither party shall have the power to bind the
other party or to contract in the name of, or create a liability against, the
other party. Neither party shall be responsible for the acts or defaults of the
other party or any of the other party's employees or agents. The parties are
independent contractors with respect to all matters arising under the Agreement.
Nothing in the Agreement shall be deemed to establish a partnership, joint
venture, association or employment relationship between the parties. With
respect to its employees, a party shall remain responsible, and shall indemnify
and hold harmless the other party, for the withholding and payment of all
federal, state and local personal income, wage, earnings, occupation, social
security, worker's compensation, unemployment, sickness and disability insurance
taxes, payroll levies, or employee benefit obligations.
(b) To the extent ONESOFT is providing Managed Services hereunder, and has
actual control over systems or facilities, ONESOFT agrees to use commercially
reasonable security consistent with industry practices. The parties acknowledge
that the Internet is neither owned nor controlled by any one entity and that one
or more third parties may gain access to ONESOFT systems. Electronic mail and
other transmissions passing through ONESOFT systems or over the Internet are not
secure, and ONESOFT cannot guarantee the security or privacy of any of the
information or communications passing through ONESOFT systems from or onto the
Internet. ONESOFT shall use commercially reasonable efforts consistent with
those in the industry to maintain the integrity of CUSTOMER's systems. EXCEPT
FOR CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF ONESOFT, In
no event will ONESOFT be liable for any loss or damage caused by a breach of
security. ONESOFT will not intentionally monitor or disclose any private
electronic communications, except to the extent necessary to identify or resolve
system problems or as otherwise permitted or required by law. ONESOFT does,
however, reserve the right to monitor transmissions, other than private
electronic communications, as necessary to provide the services hereunder and
otherwise to protect the rights and property of ONESOFT. Notwithstanding the
foregoing, ONESOFT does not assume any liability for any action or inaction with
respect to such communication or content posted or provided by an authorized or
unauthorized third party. ONESOFT is a distributor and not a publisher of
CUSTOMER's data or any other content provided by CUSTOMER or others (including
end users). Because communication of data and other content over the Internet
occurs in real time, ONESOFT cannot, and does not intend to, screen, police,
edit, or monitor communications and content. If ONESOFT is notified of any
content that allegedly violates its [Client[?]] Guide, Email Authorized Use
Policies, and/or is otherwise unlawful, ONESOFT may investigate and remove or
request the removal of such content as it deems appropriate in good faith and in
its sole discretion. In no event will ONESOFT be liable for any loss or damage
caused by a user's reliance on any data or other content obtained through
ONESOFT.
13. FURTHER ASSURANCES
The parties agree to do all such things and to execute such further
documents as may reasonably be required to give full effect to the Agreement.
14. WAIVER
No waiver of any part of the Agreement shall be effective unless made in
writing by the waiving party. No waiver of any breach of the Agreement shall
constitute a waiver of any other breach of the same, or any other provision, of
the Agreement.
15. ENTIRE AGREEMENT AND CONSTRUCTION
The Agreement constitutes an initial agreement between the parties with
respect to the specific subject matter hereof. The parties agree that there are
no other representations or warranties relating to the subject matter of the
Agreement. Headings are included in the Agreement for convenience only and shall
not affect the meaning or construction of the Agreement's provisions.
16. AMENDMENT
The Agreement may be modified or amended only by means of a writing executed
by both parties (but not by means of a PO).
17. ASSIGNIBILITY AND RESALE
Rights under the Agreement shall not be assigned, sublicensed, encumbered by
security interest, or otherwise transferred or resold by either party (whether
by operation of law or otherwise) without the prior written consent of the
other, and any purported assignment, sublicense, encumbrance or other transfer
of such rights, in violation of the Agreement, shall be void. An amalgamation,
acquisition, or merger of a party by or with any person or entity who is not a
party to the Agreement shall be treated as an assignment of the Agreement that
is subject to the provisions of the next preceding sentence if the other party
determines in its sole discretion, that such person or entity (a) is a
competitor of it or (b) has a financial condition that is materially inferior to
original party's.
18. COMPLIANCE WITH LAWS
CUSTOMER shall carry out the obligations contemplated by the Agreement and
shall otherwise deal with the subject matter hereof in compliance with all
applicable laws, rules and regulations, of all governmental authorities,
including, without limitation, any applicable legal restrictions on exports, and
shall, at its own expense, obtain all permits and licenses required in
connection with the subject matter hereof. Without limiting the foregoing,
CUSTOMER agrees that it shall comply fully with all applicable export and import
laws, rules and regulations of the United States and other jurisdictions so that
nothing provided by ONESOFT under the Agreement is either (a) exported or
imported, whether directly or indirectly, in violation of such laws, rules or
regulations; or (b) used for any illegal purpose, including without limitation
the proliferation of nuclear, chemical or biological weapons.
19. SUCCESSORS AND ASSIGNS
The Agreement shall inure to the benefit of, and be binding upon the
parties, their successors and permitted assigns.
20. SEVERABILITY
If any provision of the Agreement is held to be unenforceable, all remaining
provisions shall remain in full force and effect.
ONESOFT CONFIDENTIAL
5
21. GENERAL PROVISIONS
(a) A party shall not directly or indirectly solicit or offer employment to,
or directly or indirectly accept services, by an employee or contractor of the
other party, during the term of the Agreement and for one (1) year thereafter,
without the prior written consent of the other party. For purposes of the
Agreement, use of general employment advertising and independent employment
agencies, if not directed at one or more of the other party's employees, shall
not constitute solicitation.
(b) Each party (i) agrees to inform the other party of any information made
available to the other party that is classified or restricted data, (ii) if
given such information and so informed, agrees to comply with the security
requirements imposed by any state or local government, or by the United States
Government, and (iii) if given such information and so informed, agrees return
all copies of such information upon request.
(c) Each party warrants and represents that its entering into and performing
its obligations under the Agreement does not conflict with any contractual or
other obligation of such party or create any conflict of interest prohibited by
the U.S. Government or any other governmental authority, and that it shall
promptly notify the other party if any such conflict arises during the term of
the Agreement.
(d) Each party shall maintain commercially reasonable and adequate insurance
protection covering its respective activities hereunder, including coverage for
statutory workers' compensation, comprehensive general liability for bodily
injury and tangible property damage, as well as adequate coverage for vehicles.
Each party shall indemnify and hold the other harmless from and against any and
all liability for bodily injury, death and tangible property damage resulting
from the acts or omissions of the indemnifying party(or its officers, agents,
employees or representatives acting within the scope of their work).
(e) Sections 1, 2(c) through (j) and, 3 through 23 shall survive the
expiration or termination of the Agreement.
22. ENFORCEMENT
(a) The Agreement shall be governed by and construed in accordance with the
law of the Commonwealth of Virginia, applied without regard to its law of
conflicts.
(b) Subject to Section 22(c), any controversy or claim arising out of or
relating to the Agreement for which the value of the claim at issue is less than
$*********, shall be resolved by arbitration on accordance with the Commercial
Arbitration Rules and supplementary procedures for international commerce
arbitrations of the American Arbitration Association, except that (1) the
parties shall be entitled to reasonable document and deposition discovery from
each other limited to the matters in dispute and (2) the arbitrator shall
prepare a statement of findings of fact and conclusions of law and deliver the
statement to the Parties with respect to which the Parties shall be bound by the
findings of fact, but a Party may appeal issues of law (or application of law to
the facts) to any court of competent jurisdiction. Otherwise, judgment upon the
award rendered by the arbitrator may be entered in any court of competent
jurisdiction. The arbitration proceeding shall be conducted by a single
arbitrator selected by agreement of the parties but if the parties do not agree
on such selection then the arbitration proceeding shall be conducted by a panel
of three arbitrators. The arbitration shall be held in the Washington, D.C.
metropolitan area.
(c) Either party may seek from any court of competent jurisdiction,
injunctive and other equitable relief.
23. NOTICES
(a) Any notice or other communication to the parties shall be sent to the
contact points identified below or at such other places as they may from time to
time specify by notice in writing to the other party. Any such notice or other
communication shall be in writing and shall be given by delivery to the
designated party of the addressee by pre-paid courier or facsimile with
confirmation. Any such notice or other communication shall be deemed to have
been given when the designated party of the addressee receives such notice.
(b) Point of Contact addresses are as follows:
For ONESOFT: (Technical)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
OneSoft Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
For ONESOFT: (Contract and Admin.)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
OneSoft Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
For CUSTOMER: (Technical)
For CUSTOMER: (Contractual and Admin.)
IN WITNESS WHEREOF, the parties have caused this Services Agreement to be
executed by their duly authorized representatives as of the date first written
above.
OneSoft Corporation ▇▇▇▇▇▇▇▇ Publishing
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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ONESOFT CONFIDENTIAL
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. Name: ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------- ---------------------------
Title: Corporate Counsel Title: Sr. V.P.
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ONESOFT CONFIDENTIAL
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