THIS LICENSE AGREEMENT is made as of the 28th day of February, 2002 between
Synermedics, Inc., a corporation organized and existing under the laws of the
State of Georgia ("Licensor"), and InnerSpace Corporation, a corporation
organized and existing under the laws of the State of Delaware ("Licensee").
The Effective Date is February 28, 2002.
WHEREAS Licensor owns the Licensed Program and Licensed Technical
Information (each as defined below) and copyrights and other proprietary rights
relating thereto; and
WHEREAS, subject to the terms, conditions and provisions hereinafter set
forth, Licensee desires to obtain from Licensor, and Licensor desires to grant
to Licensee a nonexclusive, fully paid-up license to (i) use the Licensed
Program and Licensed Technical Information on a worldwide basis and (ii) use and
modify source code of the Licensed Program;
NOW, THERFORE in consideration of the premises and of the promises and
mutual covenants contained herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
The following terms, as used herein, shall have the following meanings:
"AFFILIATE" means, when used with references to Licensee, any Person
directly or indirectly controlling, controlled by or under common control with
Licensee. For purposes of this Agreement, 'control' means the direct or indirect
ownership of over 50% of the outstanding voting securities of a Person, or the
right to receive over 50% of the profits or earnings of a Person, or the right
to control the policy decisions of a Person.
"CONFIDENTIAL INFORMATION" means and includes (i) the source code and
object code of the Licensed Program and the related Documentation, (ii) the
Licensed Technical Information; and (iii) any other written or oral information
from which the furnishing party derives economic value, actual or potential,
from such information not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and which is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
"COPYRIGHT" means the copyrights related to the Licensed Work, including
the copyright applications and registration(s), if any, listed on Exhibit A
attached hereto and made part hereof, authorized under Title 17 of the United
States Code or under the laws of any other jurisdiction.
"CUSTOMER" means any Person who has executed a valid End User Agreement or
any other form of sublicense agreement relating to the license set forth herein.
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"DOCUMENTATION" means the explanatory and instructive materials in
hardcopy, including manuals and other printed or visually perceptible materials
that describe the use, function or operation of a computer software program.
"END USER AGREEMENT" means an agreement between Licensee and a Person
granting the right to use or benefit from any of the rights granted hereinunder.
"LICENSE FEES" shall mean the payments made by Licensee to Licensor hereunder.
"LICENSED PROGRAM" means the software program in source code, object code,
or any other form having the copyright registrations and applications for
copyright registration set forth in Exhibit A hereto and the specifications and
functionality described in Exhibit B hereto, together with (i) Modifications
thereto, (ii) all Documentation, and (iii) all derivative works based on the
foregoing.
"LICENSED TECHNICAL INFORMATION" means data furnished by Licensor that is
used to populate the database component of the Licensed Program.
"LICENSED WORK" means the Licensed Program, the Licensed Technical
Information and any derivative works, as well as all United States and foreign
Copyrights.
"MODIFICATION" of work means any and all changes including improvements,
enhancements, corrections, revisions to the work or any portion thereof, and any
derivative of or work substantially similar to any of the foregoing, made by
Licensor or the Licensee.
"PERSON" or "PERSONS" means any corporation, partnership, joint venture or
natural person.
"PROVIDER" means a natural person, licensed as a physician, a nurse
practitioner or other medical professional, that provides healthcare services to
patients on a regularly scheduled basis and bills those patients for his or her
professional services. For purposes hereof, the term, "Provider" does not mean a
nurse or other allied health professional who assists the Provider in the
delivery of healthcare services to patients but who does not xxxx those patients
for his or her professional services.
"SALE" as applied to the Licensed Work means a genuine bonafide transaction
for which consideration is received or expected for the use, lease, transfer or
any other disposition of the Licensed Work. A Sale of the Licensed Work shall be
deemed completed at the time Licensee or its sublicensee receives payment for
such Licensed Work.
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ARTICLE 2
GRANT OF LICENSE
2.1 GRANT OF LICENSE. Subject to the terms and conditions contained in this
Agreement, Licensor hereby grants to Licensee for the term of this
Agreement a fully paid up, perpetual, worldwide, nonexclusive license, with
a right to sublicense to:
(a) Host and use the Licensed Work;
(b) make copies of, and make derivative works of, the Licensed Work, for
the use of Licensee in accordance with the terms of this Agreement
including, without limitation, the confidentiality provisions
contained herein;
(c) distribute the Licensed Work in object code only;
(d) sublicense the Licensed Work in object code only to customers of
Licensee who have first executed an End User Agreement in a form that
is reasonably acceptable to Licensor;
(e) market the Licensed Work on a private label basis,
(f) use and make Modifications to the source code of the Licensed Program.
2.2 RESERVATION OF RIGHTS. Licensor reserves the right to make copies of, to
make derivative works of and to use the Licensed Work for commercial
purposes and to license the Licensed Work to third parties subject to the
terms of this Agreement.
2.3 NO RIGHTS BY IMPLICATION. No rights or licenses with respect to the
Licensee Work are granted or deemed granted hereunder or in connection
herewith, other than those rights or licenses expressly granted in this
Agreement.
ARTICLE 3
PAYMENTS
3.1 PAYMENTS. In consideration for the license granted by this Agreement,
Licensee shall pay Licensor as follows:
(a) 1,800,000 shares of Licensee's common stock, deliverable upon
execution of this Agreement;
(b) $50,000, payable not later than July 31, 2002.
3.2 ROYALITES. The obligation of Licensee to pay the Fees and Net Service
Bureau Access Fees described at Section 3.1 of that certain License
Agreement between Licensor and Licensee dated as of February 28, 2001, or
any other license fees or minimum royalties, is hereby terminated and of no
further force and effect. The terms, "Fees" and "Net Service Bureau Access
Fees" have the meaning ascribed in said Agreement.
3.3 CURRENCY, PLACE OF PAYMENT. All dollar amounts referred to in this
Agreement are expressed in United States dollars. All payments other
amounts to Licensor under this Agreement shall be made in United States
dollars in immediately available funds.
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ARTICLE 4
HOSTING, TRAINING, SUPPORT AND MAINTENANCE SERVICES
4.1 HOSTING. Licensee and its agents will assume all responsibility for hosting
the Licensed Work for the benefit of its Customers. Licensor will be under
no obligation to host the Licensed Work for the benefit of Licensee or
Licensee's Customers.
4.2 TRAINING AND IMPLEMENTATION. Licensor will provide remote technical
assistance and consultation to Licensee with respect to use of the Licensed
Work at a rate of the lesser of $800 per day or $150 per hour (billed in
increments of 15 minutes).
4.3 MAINTENANCE. Licensor will correct defects and provide Licensee with fixes
to the Licensed Work. Any assistance required to fulfill Licensor's
obligations under this Section will be provided at no additional charge
unless such assistance is found to be the result of hardware failure, user
error, neglect or negligence. Assistance required as a result of such
failure, user error, neglect or negligence will be compensated by the
Licensee at the rate of $150 per hour (billed in increments of 15 minutes).
4.4 UPGRADES. Licensor has no obligation to support the Licensed Work to assure
that it remains commercially viable and satisfies applicable regulatory and
health industry standards. However, Licensor will provide Licensee with any
and all upgrades it makes to the Licensed Work at no additional charge.
4.5 ACCESS TO LICENSED WORK. Licensee shall provide Licensor with remote access
to the installed Licensed Work and its affiliated hardware during regular
business hours, and for reasonable periods of time, for the purpose of
testing, identification of defects, and installation of any changes, fix or
upgrade. Licensor will exercise best efforts to coordinate with Licensee an
appropriate schedule to perform service and support so as to minimize the
operational impact to Licensee's operations. In appropriate circumstances,
at the sole discretion of Licensor, changes, fixes or upgrades may be
delivered through appropriate magnetic media, electronically transmitted or
delivered through a representative of Licensor.
4.6 EXCUSED PERFORMANCE. Licensor shall not be liable for any failure to
perform or delayed performance of any obligation under the Agreement if
such performance is prevented, hindered or delayed by reason of any cause
beyond the reasonable control of Licensor, including, without limitation,
any labor dispute, strike or other industrial disturbance, act of God,
flood, shortage of materials from various manufacturers, earthquakes,
hurricanes, casualty, war, act of public enemy, riot, insurrection, embargo
law, blockage, action, restriction and regulation or order of any
government, government agency or subdivision thereof.
ARTICLE 5
WARRANTY
5.1 WARRANTY. THE LICENSED WORK IS PROVIDED ON AN "AS IS" BASIS AND LICENSOR
MAKES NO REPRESENTATIONS OR WARRANTEES, EXPRESS OR IMPLIED, WITH RESPECT
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THERETO. BY WAY OF EXAMPLE BUT NOT OF LIMITATION, THE LICENSOR MAKES NO
REPRESENTATIONS OR WARRANTEES (i) OF COMMERCIAL UTILITY, (ii) OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR (iii) THAT THE USE
OF THE LICENSED WORK WILL NOT INFRINGE ANY PATENT, COPYRIGHT OR TRADEMARK
OR OTHER PROPRIETARY OR PROPERTY RIGHTS OF OTHERS. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, LICENSOR DISCLAIMS ANY WARRANTY THAT THE LICENSED WORK IS
FREE FROM THE RIGHTFUL CLAIMS OF ANY THIRD PARTY. LICENSOR SHALL NOT BE
LIABLE TO LICENSEE, LICENSEE"S SUCCESSORS OR ASSIGNS, OR ANY OTHER THIRD
PARTY WITH RESPECT TO ANY CLAIM ON ACCOUNT OF, OR ARISING FROM THE USE OF
INFORMATION IN CONNECTION WITH THE LICENSED WORK SUPPLIED HEREUNDER OR THE
USE OR LICENSE OF THE LICENSED WORK OR ANY OTHER MATERIAL OR ITEM DERIVED
THEREFROM. LICENSOR SHALL NOT BE LIABLE TO LICENSEE, OR ANY OTHER PERSON
FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OR INTERRUPTION OF BUSINESS, OR
FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND INCURRED BY
LICENSEE OR ANY OTHER PERSON WHETHER UNDER THIS AGREEMENT OR OTHERWISE,
EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
5.2 LICENSEE INDEMNIFICATION. Licensee will indemnify and hold harmless
Licensor, its, officers, agents and employees (collectively, the
"Indemnified Parties"), from and against any and all liability, loss,
damage, action, claim or expense suffered or incurred by the Indemnified
Parties (including reasonable attorney's fees) (individually, a "Liability"
and collectively, the "Liabilities") which results from or arises out of
(a) the use of the Licensed Work by Licensee, its Affiliates, assignees,
vendors or other third parties; (b) breach by Licensee of any covenant or
agreement contained in this Agreement; and (c) the successful enforcement
by an indemnified Party of its right under this Section. The
indemnification obligation under clause (a) shall be mitigated by the sole
negligence of the Indemnified Party. Without limiting the foregoing,
Licensee will indemnify and hold harmless the Indemnified Parties from and
against any Liabilities resulting from: (a) Any claim of any kind related
to the use by a third party of the Licensed Work by Licensee, its
Affiliates, assignees, or other third parties; and (b) any claim by a third
party that the Licensed work infringes or violates any patent, copyright,
trademark or other intellectual property rights of such third party.
5.3 PROCEDURES. The Indemnified Party shall promptly notify Licensee of any
claim or action giving rise to a Liability that is subject to the
provisions of this Article. Licensee shall have the right to defend any
such claim or action, at its cost and expense. Licensee shall not settle or
compromise any such claim or action in a manner that imposes any
restrictions or obligations on Licensor or grants any rights to the
Licensed Work, without Licensor's written consent, which consent shall not
be unreasonably withheld. If Licensee fails or declines to assume the
defense of any such claim or action within thirty (30) days after notice
thereof, Licensor may assume the defense of such claim or action for the
account and at the risk of Licensee, and any Liability related thereto
shall be conclusively deemed a liability of Licensee. Licensee shall pay
promptly to the Indemnified Party any Liabilities to which the foregoing
indemnify relates, as incurred. The indemnification rights of Licensor or
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other indemnified Party contained herein are in addition to all other
rights which such indemnified Party may have at law or in equity or
otherwise.
ARTICLE 6
MODIFICATION OF LICENSED WORK.
6.1 MODIFICATIONS.
(a) Licensee shall have the right to make Modifications of the Licensed
Work, including derivatives, which Modifications, and all patents,
copyrights and trademarks relating thereto, shall become the property
of Licensee from the moment of their creation, subject to the
Licensor's license rights hereunder.
(b) Licensee may from time to time release Modifications developed by
Licensor, subject to the Licensee's license rights hereunder. Licensor
will provide one copy of such Modifications to Licensee.
Notwithstanding, Licensee acknowledges and agrees that the Licensor
shall have no obligation to make Modifications of the Licensed Work.
ARTICLE 7
CONFIDENTIALITY
7.1 NONDISCLOSURE.
(a) Licensee shall maintain in confidence and shall not disclose to any
third Party (except an authorized sublicensee) the Confidential
Information received pursuant to this Agreement, without the prior
written consent of Licensor. The foregoing obligation shall not apply
to: (i) information that is known to Licensee or independently
developed by Licensee prior to the time of disclosure; (ii)
information disclosed to Licensee by a third party that has a right to
make such disclosure; (iii) information that becomes patented,
published or otherwise part of the public domain as a result of acts
by Licensor or by a third person who has the right to make such
disclosure; or (iv) information that is required to be disclosed by
order of any governmental authority or a court of competent
jurisdiction; provided that Licensee shall notify Licensor if it
believes such disclosure is required and shall use its best efforts to
obtain confidential treatment of such information by the agency or
court.
(b) Licensor shall maintain in confidence and shall not disclose to any
third Party (except an authorized sublicensee) the Confidential
Information received pursuant to this Agreement, without the prior
written consent of Licensee. The foregoing obligation shall not apply
to: (i) information that is known to Licensor or independently
developed by Licensor prior to the time of disclosure; (ii)
information disclosed to Licensor by a third party that has a right to
make such disclosure; (iii) information that becomes patented,
published or otherwise part of the public domain as a result of acts
by Licensee or by a third person who has the right to make such
disclosure; or (iv) information that is required to be disclosed by
6
order of any governmental authority or a court of competent
jurisdiction; provided that Licensor shall notify Licensee if it
believes such disclosure is required and shall use its best efforts to
obtain confidential treatment of such information by the agency or
court.
(c) The receiving party's obligations of confidentiality with respect to
Confidential Information that constitute trade secrets under the
Uniform Trade Secrets Act as adopted in the State of Georgia (or other
similar applicable law) shall run for as long as such information
remains a trade secret. The receiving party's obligations of
confidentiality with respect to Confidential Information that is not
covered under the Uniform Trade Secrets Act as adopted in the State of
Georgia (or other similar applicable law), shall run for three (3)
years from the date of termination of this Agreement.
7.2 USE OF CONFIDENTIAL INFORMATION.
(a) Licensee shall ensure that all of its employees, agents and
contractors having access to the Confidential Information of Licensor
are obligated in writing to abide by Licensee's obligations hereunder.
Licensee shall use the Confidential Information only for the purposes
contemplated under this Agreement.
(b) Licensor shall ensure that all of its employees, agents and
contractors having access to the Confidential Information of Licensee
are obligated in writing to abide by Licensor's obligations hereunder.
Licensor shall use the Confidential Information only for the purposes
contemplated under this Agreement.
7.3 INJUNCTIVE RELIEF. Because damages at law will be an inadequate remedy for
breach of any of the covenants, promises and agreements contained in this
Article 6 hereof, the aggrieved party shall be entitled to injunctive
relief in any state or federal court located within the City of Atlanta,
Georgia, including specific performance or an order enjoining the breaching
party from any threatened or actual breach of such covenants, promises or
agreements. The rights set forth in this Section shall be in addition to
any other rights which the aggrieved party may have at law or in equity.
ARTICLE 8
WARRANTIES AND REPRESENTATIONS
8.1 REPRESENTATIONS AND WARRANTIES OF LICENSOR. Licensor represents and
warrants to Licensee that
(a) Licensor is a corporation duly organized, validly existing and in good
standing under the laws of Georgia, and has all requisite corporate
power and authority to execute, deliver and perform this Agreement.
(b) This Agreement, when executed and delivered by Licensor, will be the
legal, valid and binding obligation of Licensor, enforceable against
Licensor in accordance with its terms.
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(c) The execution, delivery and performance of this Agreement by Licensor
does not conflict with, or constitute a breach or default under, (i)
the charter documents of Licensor, (ii) any law, order, judgment or
governmental rule or regulation applicable to Licensor, or (iii) any
provision of any agreement, contract, commitment or instrument to
which Licensor is a party; and the execution, delivery and performance
of this Agreement by Licensor does not require the consent, approval
or authorization of, or notice or declaration to or filing or
registration with, any governmental or regulatory authority.
(d) Licensor holds full right, title and interest in and to the Licensed
Work. To its knowledge, the Licensed Work does not infringe the
proprietary rights of any third party. Licensor has not received any
written notice that the Licensed Work infringes the proprietary rights
of any third party.
8.2 REPRESENTATIONS AND WARRANTIES OF LICENSEE. Licensee represents and
warrants to Licensor that
(a) Licensee is a corporation duly organized, validly existing and in good
standing under the laws of Delaware, and has all requisite corporate
power and authority to execute, deliver and perform this Agreement.
(b) This Agreement, when executed and delivered by Licensee, will be the
legal, valid and binding obligation of Licensee, enforceable against
Licensee in accordance with its terms.
(c) The execution, delivery and performance of this Agreement by Licensee
does not conflict with, or constitute a breach or default under, (i)
the charter documents of Licensee, (ii) any law, order, judgment or
governmental rule or regulation applicable to Licensee, or (iii) any
provision of any agreement, contract, commitment or instrument to
which Licensee is a party; and the execution, delivery and performance
of this Agreement by Licensee does not require the consent, approval
or authorization of, or notice or declaration to or filing or
registration with, any governmental or regulatory authority.
ARTICLE 9
PROPRIERARY RIGHTS AND INFRINGEMENT
9.1 RIGHTS PROTECTION.
(a) LICENSEE CONTROL. Licensee shall be responsible for and shall control
the preparation, prosecution and maintenance of all copyrights and
patent rights pertaining to the Licensed Work.
(b) LICENSOR PROSECUTION. If Licensee elects not to file, prosecute or
maintain any copyright or patent to the Licensed Work, it shall notify
Licensor at least sixty (60) days prior to taking, or not taking, any
action which would result in abandonment, withdrawal, or lapse of such
right. Licensor shall then have the right to file, prosecute or
maintain the right at its own expense and set off such expense from
the royalty payments due Licensor hereinunder.
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(c) COOPERATION. Each party shall cooperate with the other party to
execute all lawful papers and instruments and to make all rightful
oaths and declarations as may be necessary in the preparation and
prosecution of all rights referred to in this Section.
9.2 INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS; INFRINGEMENT BY THIRD PARTY.
(a) THIRD PARTY INFRINGEMENT.
(i) LICENSEE'S OBLIGATIONS. Each party will promptly notify the other
party of any infringement or possible infringement of rights
relating to the Licensed Work by a third-party. Licensee shall
have the right, but not the obligation, to prosecute such
infringement at its own expense. In such event, Licensor shall
cooperate with Licensee, at Licensee's expense. Licensee shall
not settle or compromise any such suit in a manner that imposes
any obligations or restrictions on Licensor or grants any rights
to the Licensed Work, without Licensor's written consent.
(ii) LICENSOR'S RIGHTS. If Licensee fails to prosecute such
infringement within ninety (90) days after receiving notice
thereof, Licensor shall have the right, but not the obligation,
to prosecute such infringement at its own expense. In such event,
Licensee shall cooperate with Licensor, at Licensor's expense.
(iii)RECOVERY DISTRIBUTION. Any recovery obtained by the prosecuting
party as a result of such proceeding, by settlement or otherwise,
shall be applied first to the prosecuting party, in an amount
equal to its costs and expenses of the litigation, with the
remainder to be paid to the Licensee, subject to the earned
PAYMENTS due to Licensor under Article 3 hereof.
ARTICLE 10
TERM AND TERMINATION
10.1 TERM. This Agreement and the licenses granted herein shall commence on the
Effective Date and shall continue, subject to earlier termination under
Sections 11.2 or 11.3 hereof, in perpetuity or, if a specified term is
required by law, for a period of thirty (30) years thereafter.
10.2 TERMINATION BY LICENSOR.
(a) EVENTS OF DEFAULT. Upon the occurrence of any of the events set forth
below ("Events of Default"), Licensor shall have the right to
terminate this Agreement by giving written notice of termination, such
termination being effective with the giving of such notice:
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(i) Nonpayment of any amount payable to Licensor that is continuing
then (10) calendar days after Licensor gives Licensee written
notice of such nonpayment;
(ii) breach by Licensee of any covenant (other than a payment breach
referred to in clause (i) above) or any representation or
warranty contained in this Agreement that is continuing sixty
(60) calendar days after Licensor gives Licensee written notice
of such breach; provided that if Licensee, using its best
efforts, cannot cure such breach within the flat sixty (60) days,
the cure period shall be extended by an additional sixty (60)
calendar days, the total cure period not to exceed one hundred
twenty (120) days; or
(iii)Licensee fails to comply with the terms of the license granted
under Article 2 hereof and such noncompliance is continuing
thirty (30) calendar days after Licensor gives Licensee notice of
such noncompliance;
10.3 NO WAIVER. No exercise by Licensor of any right of termination shall
constitute a waiver of any right of Licensor for recovery of any monies
then due to it hereunder or any other right or remedy Licensor may have at
law or under this Agreement.
10.4 RIGHTS AND DUTIES UPON TERMINATION. Within thirty (30) days after
termination of this Agreement, each party shall return to the other party
any Confidential Information of the other Party. Licensee also shall return
all copies of the Licensed Program in its possession that are embodied in
physical form to Licensor promptly upon the termination of this Agreement.
10.5 SUBLICENSES. Any sublicenses granted by Licensee under this Agreement and
conforming substantially to the form of End User License Agreement agreed
to by the parties shall survive termination of this Agreement in accordance
with the terms of such sublicense.
10.6 PROVISIONS SURVIVING TERMINATION. Licensee's obligation to make payments
accrued but unpaid prior to termination of this Agreement shall survive
such termination. In addition, any other provisions required to interpret
the rights and obligations of the parties arising prior to the termination
date shall survive expiration or termination of this Agreement.
ARTICLE 11
ADDITIONAL PROVISIONS
11.1 ASSIGNMENT. This Agreement may be assigned by either party upon written
notice to the nonassigning party. No assignment shall relieve Licensee of
responsibility for the performance of any obligations which have accrued
prior to such assignment.
11.2 NO WAIVER. A waiver by either party of a breach or violation of any
provision of this Agreement must be in writing in order to be effective. No
waiver will constitute or be construed as a waiver of any subsequent breach
or violation of that provision or as a waiver of any breach or violation of
any other provision of this Agreement.
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11.3 INDEPENDENT CONTRACTOR. Nothing herein shall be deemed to establish a
relationship of principal and agent between Licensor and Licensee, nor any
of their agents or employees for any purpose whatsoever. This Agreement
shall not be construed as constituting Licensor and Licensee as partners,
or as creating any other form of legal association or arrangement that
could impose liability upon one party for the act or failure to act of the
other party.
11.4 NOTICES. Any notice under this Agreement shall be sufficiently given if
sent in writing by prepaid, first class, certified or registered mail,
return receipt requested, addressed as follows:
(a) If to Licensor, to
Synermedics, Inc.
000 Xxxxxxx Xxxxxx
Xxxx 0
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
(b) If to Licensee, to:
InnerSpace Corporation
000 Xxxxx Xxxx XX
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
or to such other addresses as may be designated from time to time
by notice given in accordance with the terms of this Section.
11.5 ENTIRE AGREEMENT. This Agreement embodies the entire understanding between
the parties relating to the subject matter hereof and supersedes all prior
understandings and agreements, whether written or oral. This Agreement may
not be varied except by a written document signed by duly authorized
representatives of both parties.
11.6 SEVERABILITY. Any of the provisions of this Agreement which are determined
to be invalid or unenforceable in any jurisdiction shall be ineffective to
the extent of such invalidity or unenforceability in such jurisdiction,
without rendering invalid or unenforceable the remaining provisions hereof
or affecting the validity or unenforceability of any of the terms of this
Agreement in any other jurisdiction.
11.7 HEADINGS. Any headings and captions used in this Agreement are for
convenience of reference only and shall not affect its construction or
interpretation.
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11.8 NO THIRD PARTY BENEFITS. Nothing in this Agreement, express or implied, is
intended to confer on any person other than the parties hereto or their
permitted assigns, any benefits, rights or remedies.
11.9 GOVERNING LAW. This Agreement shall be construed, governed, interpreted and
applied in accordance with the laws of the State of Georgia, without giving
effect to conflict of law provisions.
11.10 COUNTERPARTS. This Agreement shall become binding when any one or more
counterparts hereof, individually or taken together, shall bear the
signatures of each of the parties hereto. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original as
against the party whose signature appears thereon, but all of which
together shall constitute but one and the same instrument.
11.11 FURTHER ASSURANCES. The parties shall sign such other instruments, cause
such meetings to be held and resolutions passed, exercise their vote and
influence, do and perform and cause to be done and performed such further
and other acts as things as may be reasonably necessary or desirable to
give full effect to the intent and purposes of this Agreement.
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IN WITNESS WHEREOF AND INTENDING TO BE BOUND, the parties hereto execute this
Agreement through their authorized representatives as of the date first above
written.
INNERSPACE CORPORATION
By:/s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Chief Executive Officer
SYNERMEDICS, INC.
By:/s/Xxx Xxxxxxxx
Xxx Xxxxxxxx
President
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