FORM OF
FIRST AMENDMENT OF EXCLUSIVE DISTRIBUTOR AGREEMENT
THIS FIRST AMENDMENT OF EXCLUSIVE DISTRIBUTOR AGREEMENT (this "Amendment")
is made this 29th of September, 1996 to be effective as of June 28, 1996
by and among FORECROSS CORPORATION, a California corporation ("Licensor"),
Gardner Solution 2000, LLC, a California LLC ("Distributor"), and [****]
("[****]").
RECITALS
A. WHEREAS, Licensor and Distributor entered into a written "Exclusive
Distributor Agreement" on June 28, 1996 (the "Original Written Agreement");
B. WHEREAS, Licensor and Distributor have determined that the Original Written
Agreement did not and does not accurately reflect the economic substance of
the agreement between the parties in that it failed to provide for (i) the
detailed allocation of the consideration paid by Distributor, (ii) the
security for certain of the payments to be made by Distributor, and (iii)
the license of the Products given by Licensor to Distributor for
Distributor's internal use and for demonstration to potential end users.
C. WHEREAS, Licensor and Distributor desire to amend the Original Written
Agreement so as to accurately reflect the substance of the agreement
between the parties and to make other technical corrections.
D. WHEREAS, [****] desires to assist Distributor, an entity of which is
a [****] owner, in securing the Distributor's obligation to make
certain payments to the Licensor as provided herein.
THEREFORE, in consideration of their mutual continued performance under the
Original Written Agreement, the Licensor and Distributor agree, and in
consideration for continued performance by Licensor, which performance will
benefit [****] through his ownership of Distributor, [****] agrees, as
follows:
AGREEMENT
1. Licensor and Distributor agree to amend and restate Section 3.3 of the
Original Written Agreement (all further Section references shall be to the
Original Written Agreement unless otherwise stated) in its entirety and so
that as amended, Section 3.3 reads in full as follows:
"3.3 In consideration of the appointment by Licensor of Distributor as
the exclusive Distributor and in further consideration of support,
licenses, training and other promises contained herein, Distributor shall
pay Licensor cash fees as follows:
1. [***] as a one-time non-refundable fee for the license granted
pursuant to Section 4.3 herein;
2. [***] as a one-time non-refundable fee for exclusivity for a
period of one year starting on June 28, 1996 (the date of
"Commencement");
3. [***] as a one-time non-refundable fee for technical and sales
training and support for a period on one year starting on
the date of Commencement; and
4. [***] per year as a non-refundable annual fee for software
maintenance and enhancements in each of the ten years
starting on the date of Commencement."
2. Licensor and Distributor agree to add a new Section 3.4 to read in full as
follows:
"3.4 The fees described in Section 3.3 will be payable as follows:
1. The [***] in one-time non-refundable fees described in
paragraph (1) of Section 3.3 above shall be due and
payable upon execution of the Agreement.
2. The [***] in one-time non-refundable fees described in
paragraphs (2), (3) and (4) of Section 3.3 above shall
be due and payable before the expiration date of one
year from the date of Commencement.
3. Licensor and Distributor agree to add and [****] consents to such
addition and agrees to be bound by a new Section 3.5 to read in full as
follows:
"3.5 The fees described in paragraphs (2), (3) and (4) of Section
3.3 will be secured by that certain [****] shares of the
Licensor's outstanding common stock in the name of
[****] on the books and records of the Licensor (the
"Security Shares") as follows:
1. Distributor and [****] shall cause the original
share certificate or certificates evidencing the Security
Shares to be delivered to Licensor immediately upon
execution of this Amendment.
2. The Security Shares shall be held by Licensor as a general
and continuing collateral security (the "Security") for
the payment, fulfillment and performance of all
indebtedness of Distributor described in paragraphs (2),
(3) and (4) of Section 3.3 above (the "Secured
Obligation").
3. In the event the Distributor (i) fails to pay any or all
of the Security Obligation prior to the expiration of the
one year period beginning on the date of Commencement and
(ii) after receiving notice of such failure does not
remedy any such failure within a period of ten (10) days
(hereinafter a "Default"), the Licensor shall be
entitiled:
(a) to sell at public or private sale, lease, or therwise
realize upon, deal with or dispose of the Security
Shares, or any of them, in any manner allowed by
Section 9504 of the California Commercial Code, and
(b) to exercise any other rights, powers and remedies
available to Licensor at law, in equity, or
by statutory enactment.
4. When the Security Obligation is completely satisfied,
fulfilled and performed, the Security Shares shall be
released and delivered to [****], free and clear of the
Security.
5. [****] shall have the authority, until Default, to exercise
and enjoy all voting rights attaching to the Security
Shares or any of them and any distributions made on the
Security Shares shall be delivered to the Licensor
hereunder as addtional security on the same terms as the
Security Shares.
6. With reference to the security interest hereinabove
refereed to, the Distributor and [****] hereby acknowledge
and agree that:
(a) value was given by Licensor to Distributor and thereby
to [****]
(b) [****] has rights in the Security Shares; and
(c) [****] intends, and acknowledges Licensor's intention
that such security interest shall attach upon the
execution and delivery by [****] of this Agreement.
7. This Security shall not limit or affect Licensor's legal
or equitable remedies for breach of any obligations under
this Agreement or any other Agreement. Notwithstanding
any security interest granted herein, Licensor may
proceed against the Security Shares and/or Distributor for
breach of the Secured Obligations."
4. [****] represents and warrants to Licensor that as of the date of
Commencement and through and including the date of execution of this
Amendment, [****] owns all right, title and interest in the Security
Shares free and clear of any third party security interest, lien or
representations and warranties in connection with this Amendment.
5. Licensor and Distributor agree to add a new Section 3.6 to read in full as
follows:
"3.6 Distributor shall not during the term of this Agreement
represent or offer to represent or market, sell or
distribute, in the Territory, computer software products
that compete directly with the Products."
6. Licensor and Distributor agree that notwithstanding the language of the
amendment to the Original Written Agreement made by Section 3 immediately
above, the tender and delivery of the therein defined "Security Shares" on
the date of the execution of this Amendment shall be deemed to be a tender
and delivery of the Security Shares as of June 28, 1996.
7. Licensor and Distributor agree to add a new Section 4.3 to read in full as
follows:
"4.3 Licensor hereby grants to Distributor for its internal use and
for demonstration to potential end users, ONE nonexclusive,
non-assignable, non-transferable license to use the Products, subject
to the terms and conditions specified in and pursuant to a license
agreement between Licensor and Distributor in substantially the form
as attached hereto as Exhibit "A." Notwithstanding anything contained
in such Exhibit "A" to the contrary, the Distributor shall not make
or distribute to third parties copies of the Products nor allow such
Products to be used for the benefit of any other party except in
connection with the demonstration of the Products."
8. Licensor and Distributor agree to add a new Exhibit "A" to the Original
Written Agreement in a form identical to that Exhibit "A" attached hereto.
9. Licensor and Distributor agree to amend and restate the first sentence of
Section 6.3 in its entirety and so that as amended, the first sentence of
Section 6.3 reads in full as follows:
"Distributor shall be responsible for its own expenses and costs in
fulfilling its duties under this Agreement, including without limitation
office rent, salaries and commissions of office help and sales people in
its employ, license, taxes, insurance, automotive costs, transportation and
living expenses."
10. Licensor and Distributor agree to delete the reference to "paragraph 7.2"
in the penultimate clause of Section 10 and replace it so such reference
reads in full as "paragraph 6.3".
11. Licensor and Distributor agree (i) that this Amendment and the Original
Written Agreement shall together constitute one agreement which is the
complete exclusive statement thereof between the parties and (ii) that
together they supersede and merge all prior proposals and understandings
and all other agreements, whether oral or written, between the parties
relating to the subject matter hereof. To the extent the Original Written
Agreement is not modified or
amended by this Amendment, it is by this reference, expressly incorporated
herein as if set forth in full. Neither the Amendment nor the Original
Written Agreement may be modified or altered except by written instrument
duly executed by the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the date set forth above.
GARDNER SOLUTION 2000, LLC FORECROSS CORPORATION
a Delarare LLC a California corporation
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(authorized signature) (authorized signature)
AS TO SECTIONS 3 AND 4 ONLY:
- - -----------------------------
[****]
FORM OF
EXCLUSIVE DISTRIBUTOR AGREEMENT
THIS EXCLUSIVE DISTRIBUTOR AGREEMENT (this "Agreement") by and between Forecross
Corporation (hereinafter "Licensor"), a California corporation having its
principal offices at 90 New Montgomery Street, San Francisco, CA 94105; and
Gardner Solution 2000, L.L.C. (hereinafter "Distributor"), a Delaware Limited
Liability Company having its principal offices at [***] is entered into this
28th day of June, 1996:
WHEREAS, Licensor is the owner of certain computer programs and methodology
together with all upgrades, improvements and enhancements defined herein as the
"Products" and "Services", which Products and Services are used to assist
customers in making their computer applications capable of correctly processing
dates in the year 2000 and beyond ("Year 2000") ;
WHEREAS, Distributor has special knowledge concerning the general business needs
of prospects in the "Territory" defined herein and familiarity with a number of
such prospects;
WHEREAS, Licensor wishes to appoint Distributor as its exclusive marketing
representative for the solicitation of license agreements and service agreements
relating to the Products and Services, and authorize Distributor to provide
certain services relating to such marketing efforts; and
WHEREAS, Distributor is willing to accept such appointment and to undertake to
provide such services under the terms of this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. SCOPE
The Products and Services covered by this Agreement are Licensor's Complete/2000
automated conversion software products, related services and methodologies and
consist of computer programs, any updates thereto and conversion services
offered generally to end-users by Licensor under the terms and conditions of its
then current license agreement. Licensor offers enhancement and error-correction
services with respect to the Products under the terms and conditions of service
agreements created for each end-user.
2. APPOINTMENT OF DISTRIBUTOR
Subject to the terms and conditions hereof, Licensor hereby designates and
appoints Distributor, for the term of this Agreement, as its exclusive marketing
agent and representative for the solicitation of license agreements and service
agreements related to the Products and Services from, and the delivery of such
Services to end-users in the Territory. Distributor hereby accepts such
designation and appointment.
3. DUTIES OF DISTRIBUTOR
3.1 Distributor agrees, for the term of this Agreement, that it shall
promote and market the Products to prospective end-users by:
1. Identifying prospects within the Territory that may benefit
from use of the Products and Services
2. Contacting prospects and conducting sales presentations of
the Products and Services
3. Performing systems analysis of the end-users'
applications and providing to Licensor information to
assist Licensor in preparing proposals to prospects
4. Assisting Licensor in preparing and obtaining the prospects'
execution of license agreements and service agreements
5. Forwarding executed license agreements and service
agreements to Licensor.
6. Serving as a point of contact for necessary communications
between end-users and Licensor with respect to the Products
and Services
7. Providing on-site Services and support, including project
management, working with customer to create date selection
and expansion rules, installing and turning over to customer
the data expansion programs and converted application
programs
8. Performing all obligations of Distributor under accepted
service agreements
9. Providing account management
3.2 Distributor shall use its best efforts to generate Year 2000
business acceptable to Licensor. Distributor shall diligently and
continuously sell, distribute and promote the Products and Services
and shall make and maintain adequate arrangements for the
distribution of Products and Services. Distributor shall report
to Licensor about Distributor's marketing activities and shall
provide forecasts to Licensor as may be reasonably requested.
3.3 Distributor agrees that, in consideration of the appointment by
Licensor of Distributor as the exclusive Distributor for the Products
and Services in the Territory, Distributor shall pay Licensor a
license fee of [****] as follows: [****] immediately upon
signing of this Agreement ("Commencement"), and [****] within thirty
(30) days after Commencement. Additionally, Distributor shall not
during the term of this Agreement represent or offer to represent or
market, sell or distribute, in the Territory, computer software
products that compete directly with the Products. In the event that
the [****] payment is not made within [****] of Commencement,
Distributor shall forfeit the prior payment and this agreement
shall terminate.
4. LICENSE AGREEMENTS AND SERVICE AGREEMENTS
4.1 Distributor shall have the authority to solicit the signature of
end-users on Licensor's license agreements and service agreements which
have been jointly prepared by Licensor and Distributor for end-users.
Distributor has and shall exercise no authority to make any alterations
in such agreements or to execute or accept such agreements on behalf of
Licensor. Distributor shall inform all end-users that such agreements
must be forwarded to Licensor for acceptance and execution by Licensor
in order for such agreement to be binding on Licensor.
4.2 Distributor has and may exercise no authority to make statements or
representations concerning the Products that exceed or are inconsistent
with the marketing materials and technical specifications provided to
Distributor by Licensor. Distributor has and may exercise no authority
to bind Licensor to any undertaking or performance with respect to the
Products. Licensor has and may exercise no authority to make statements
or representations concerning the Distributor which exceed or are
inconsistent with this Agreement. Licensor has and may exercise no
authority to bind Distributor to any undertaking or performance with
respect to the Products or Services, other than as mutually agreed by
Licensor and Distributor in writing in Licensor's service agreement for
an end-user. Notwithstanding the foregoing, in the event that a
prospective end-user contacts Licensor to request Products or Services
and Distributor elects not
to pursue the prospective end-user, Licensor shall be free to
negotiate independently with the end-user for the provision of
Products or Services.
5. UNDERTAKING OF LICENSOR
Licensor shall:
1. Use best efforts to promote the Products including with national
and local advertising as it deems appropriate.
2. Provide to Distributor's technical and sales staff technical and
sales training with respect to the Products and Services, to
consist of one two-week training course offered at Licensor's
field training center or at Distributor's facilities. Licensor
shall provide such training at its own cost, but Distributor
shall be responsible for travel and living expenses incurred by
its employees.
3. Provide reasonable quantities of marketing materials, including
descriptive brochures and promotional materials suitable for
unrestricted distribution, and licenses and other contractual
documents.
4. Evaluate the qualifications of prospective end-users solicited by
Distributor. Licensor may condition acceptance of license
agreements and service agreements on an end-users' payment in
advance of all or part of applicable license fees and service
fees.
5. Perform all obligations of Licensor under accepted license
agreements and service agreements.
6. Invoice and collect amounts payable under each license agreement
and service agreement accepted by Licensor.
7. Provide Product development, enhancement, and product problem
resolution as Licensor deems appropriate, but in all events
sufficient to enable Licensor and Distributor to perform their
obligations under accepted license agreements and service
agreements.
8. Provide migration factory management and operations.
9. Provide Products and Services in a manner which does not lead to
added delays, costs or expenses to Distributor
10. Use its best efforts to increase Product and Service capacity,
and improve the quality of its Products and Services
11. Licensor shall use its best efforts, consistent with its past
practices, to protect all of its intellectual property rights,
including without limitation trade secrets, know-how, patents,
copyrights and trademarks, and take strict precautions to protect
the confidential and proprietary status of all current and future
information relating to the Products and Services.
6. COMPENSATION
6.1 Until Distributor has received [****] in fees under this
Agreement, Distributor shall receive a fee equal to [****] percent
of the revenue actually collected by Licensor under license
agreements and service agreements solicited by Distributor and
accepted by Licensor. Thereafter, Distributor shall receive a fee
equal to [****] percent of the revenue actually collected by
Licensor under license agreements and service agreements solicited
by Distributor and accepted by Licensor. At Licensor's expense,
Distributor agrees to reasonably cooperate with Licensor and
reasonably assist in the collection of accounts receivable under
license agreements
and service agreements forwarded to Licensor by Distributor, provided
however that Distributor shall not be required to commence or
prosecute any litigation in connection with any such collection
assistance. Payment of Distributor's compensation shall be made by
Licensor within [****] days after receipt of revenues by
Licensor. Payment shall be accompanied by a detailed accounting of the
basis for such payment, identifying the source and amount of
applicable revenues so received by Licensor.
6.2 Distributor shall have the right, at its sole expense, to examine
the books and records of Licensor to verify Licensor's calculation of
the compensation due to Distributor. Such examinations may be made no
more frequently than once every six months and may cover only the
prior two years books and records. All such examinations shall be
conducted by a certified public accountant upon not less than two
business days prior written notice to Licensor, during Licensor's
regular business hours.
6.3 Distributor shall be responsible for its own expenses and costs in
fulfilling it duties under this Agreement, including without
limitation office rent, salaries and commissions of office help and
sales people in its employ, licenses, taxes, insurance, automotive
costs, transportation and living expenses. Distributor shall supply
appropriate commercial and general liability insurance needed to
fulfill its duties under this Agreement. Distributor indemnifies and
holds harmless Licensor from any claims, costs, losses or damages,
including attorneys' fees, resulting from workers' compensation
claims, or other claims of or relating to Distributor's employees.
7. TERRITORY
The territory of this Agreement shall be the states of [****]. Other than
[****] ownership, of all multi-territory end-users will be determined by
Licensor. Any disputes arising out of this paragraph will be settled solely
by Licensor.
8. TERM AND TERMINATION
8.1 The term of this Agreement shall commence upon the date of
execution of this Agreement and shall continue for [****] years
thereafter unless sooner terminated in accordance with the
provisions hereof. This Agreement may be thereafter extended only by
written instrument executed by both parties.
8.2 Licensor may terminate this Agreement upon written notice to
Distributor in the event of the breach of any material obligation
hereunder by Distributor that is not cured by Distributor after receipt
from Licensor of [****] written notice calling attention to
such breach and demanding cure thereof. In the event of such
termination for cause, Licensor's sole obligation to Distributor shall
be to pay compensation accrued for revenues collected prior to the date
of termination.
8.3 Distributor may terminate this Agreement upon written notice to
Licensor in the event of the breach of any material obligation
hereunder by Licensor that is not cured by Licensor after receipt from
Distributor of [****] written notice calling attention to
such breach and demanding cure thereof. In the event of such
termination for cause, Licensor's obligation to Distributor shall be to
pay compensation accrued for revenues collected prior to the date of
termination.
8.4 Upon termination of this Agreement for any reason, Distributor
shall within [****] of such termination return to Licensor
all copies of the Products, including demonstration copies, and all
copies of technical materials, brochures, marketing materials, and the
like. Distributor shall further provide to Licensor copies of
Distributor's prospect files and end-user correspondence files.
Upon the termination of this Agreement for any reason, Distributor shall
immediately cease using all trademarks, services marks, software and
documentation of Licensor.
9. INDEMNITIES
9.1 Licensor hereby indemnifies Distributor from and against any and
all claims, demands, or actions arising out of any material breach by
Licensor of any of the terms of any license agreements or service
agreements.
9.2 Distributor hereby indemnifies Licensor from and against any and
all claims, demands, or actions arising out of Distributor's activities
or performance outside the express authorization provided Distributor
under this Agreement or any license agreements or service agreements or
any breach of Distributor's obligations hereunder.
9.3 The indemnities contained in this Section 10 shall be conditioned
upon the indemnifying party's receiving (1) prompt written notice of
any claims, demands, or actions for which indemnity is sought; (2)
cooperation in the defense by the party seeking indemnity; and (3)
control of the defense and/or settlement of such claim, demand, or
action as to which indemnity is sought.
10. LIMITATIONS OF LIABILITY
In no event shall either party hereto be entitled to special, indirect, or
consequential damages, including lost profits, for breach of this Agreement.
Remedies shall be limited to claims for amounts due hereunder, for
indemnification as provided for herein or for actual damages resulting from any
such breach. However, the foregoing limitation of remedies shall not apply to
any action by Licensor for infringement of any intellectual property right by
Distributor; any action based on or with respect to unauthorized publication,
disclosure, or use of Confidential Information or trade secrets of Licensor; or
any claim pursuant to paragraph 7.2 (employee claims) of this Agreement; or any
action based on Licensor's rights in copyrights, trademarks, or trade names or
other proprietary rights in the Products.
11. TRADEMARK
Except for purposes of identification of Products, no right, title, interest, or
license in or to any trademark or service mark of Licensor is granted to
Distributor under this Agreement. Distributor may on its business cards state
that Distributor is an authorized distributor for the licensing of the Products
of Licensor. Distributor shall not contest the validity of such marks or
Licensor's exclusive ownership of them. During the term of this Agreement,
Distributor shall not adopt, use, or register, whether as a corporate name,
trademark, service mark or other indication of origin, any such marks, or any
word or mark confusingly similar to them in any jurisdiction.
12. ENHANCEMENTS AND DISCOVERIES
If Distributor makes any discoveries, devices or other tangible or intangible
improvement relating to Products or Services, Distributor shall immediately
disclose same to Licensor, and hereby assigns all rights, title and interest in
same to Licensor. Distributor shall secure assignment agreements with its
employees to ensure that same can be assigned to Licensor.
13. CONFIDENTIALITY
"Confidential Information" shall mean any information disclosed by Licensor to
Distributor, in writing, orally, by inspection of tangible objects or by
inspection of source code, object code or operation of any Product, including
without limitation, any product, technical, manufacturing, process, marketing,
financial, business or other information, ideas or know-how.
Confidential Information may also include information disclosed to Licensor by
third parties. Confidential Information shall not include information which: (i)
was generally known and available in the public domain at the time it was
disclosed, or becomes generally known and available in the public domain through
no fault of the receiving party, its employees, agents, successors or assigns;
(ii) was known to the Distributor at the time of the disclosure; (iii) was
independently developed by Distributor without the use of or reliance on any
Confidential Information, as shown by written records contemporaneously with
such independent development; (iv) becomes known to Distributor from a third
party who has no obligation of confidentiality to the Licensor.
Distributor shall not disclose Confidential Information to any third party
unless authorized in advance in writing, except (i) to potential and actual
end-users of the Products and Services in connection with Distributor's
marketing of the Products and Services and performance of its duties and
obligations under this Agreement, (ii) in response to a subpoena or other legal
process, and (iii) as may otherwise be required by applicable law. Distributor
shall not disclose Confidential Information to its employees, except on a "need
to know" basis where such disclosure is necessary and required to exercise it
rights and perform its obligations under this Agreement. Distributor shall not
disclose Confidential Information to any employee of Distributor unless such
employee has signed a non-use and non-disclosure agreement in content at least
as protective as the provisions hereof, prior to any disclosure of Confidential
Information to such employee. Distributor shall take reasonable measures to
protect the secrecy of and avoid disclosure and unauthorized use of the
Confidential Information. Without limiting the foregoing, Distributor shall take
at least those measures that it takes to protect its own most highly
confidential information. Distributor shall not reverse engineer, disassemble or
decompile any prototypes, software or other tangible objects which embody the
Confidential Information and which are provided to Distributor hereunder.
Distributor shall immediately notify Licensor in the event of any unauthorized
use or disclosure of the Confidential Information. This obligation in this
paragraph shall survive the expiration or termination of this Agreement for any
reason.
Upon termination of this Agreement for any reason, Distributor shall promptly
return all Confidential Information received from Licensor.
14. NO FRANCHISE
Neither this Agreement, nor any terms and conditions contained herein, shall be
construed as creating a partnership, joint venture or agency relationship or as
granting a franchise as defined in 16 CFR Section 436.2(a), or applicable state
law. The price and payment described in this Agreement shall be construed as a
royalty fee for the rights granted in this Agreement, and not as a franchise
fee.
15. UCC
LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER
ORAL OR
WRITTEN, WHETHER EXPRESS OR IMPLIED, OR ARISING BY STATUTE, CUSTOM, COURSE
OF DEALING OR TRADE USAGE, WITH RESPECT TO THE PRODUCTS OR SERVICES, OR
OTHERWISE IN CONNECTION WITH THIS AGREEMENT. LICENSOR SPECIFICALLY
DISCLAIMS
ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTIBILITY,
SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL
WARRANTIES OF
NON-INFRINGEMENT.
16. STATUS OF DISTRIBUTOR'S PERSONNEL
Distributor shall be responsible for the wages, hours, and conditions of
employment of Distributor's personnel during the term of and under this
Agreement. Nothing herein shall be construed as implying that employees of
Distributor are employees of Licensor.
17. NOTICES
All notices, demands, or consents required or permitted under this Agreement
shall be in writing and shall be delivered personally or sent by certified or
registered mail, postage prepaid, to the appropriate party at the address set
forth in the first paragraph of this Agreement or at such other address as shall
be given by either party to the other in writing.
18. CHOICE OF LAW
This Agreement shall be deemed to be made in the State of California and in all
respects shall be interpreted, construed, and governed by and in accordance with
the laws of the State of California. The venue for any law suits involving
disputes under this Agreement shall be in the Northern District of California or
the County of San Francisco. The prevailing party in any such dispute shall be
entitled to recover its costs and reasonable attorneys' fees.
19. WAIVER OF RIGHTS
The waiver by either party of any term or provision of this Agreement shall not
be deemed to constitute a continuing waiver thereof nor of any further or
additional rights such party may hold under this Agreement.
20. NO ASSIGNMENT; ENFORCEABILITY
This Agreement is personal to Distributor and is not assignable without the
prior written consent of Licensor. Any attempt to assign, transfer, or
subcontract any of the rights, duties, or obligations of this Agreement without
such consent is void. If any provision or provisions of this Agreement shall be
held to be invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
21. ARBITRATION
Any controversy or claim arising out of, in connection with or relating to this
Agreement, or the formation or breach hereof shall be resolved by binding
arbitration pursuant to the rules then in effect of the American Arbitration
Association and the State of California, with the cost thereof shared equally by
the parties; the venue of any arbitration or litigation relating to any such
controversy or claim shall be San Francisco, California, and the parties consent
to the jurisdiction of any court therein. In the event of litigation or
arbitration between the parties concerning this Agreement, the prevailing party
shall be entitled to its reasonable attorneys' fees.
22. COMPLETE AGREEMENT
The parties agree that this Agreement is the complete and exclusive statement
thereof between the parties and that it supersedes and merges all prior
proposals and understandings and all other agreements, whether oral or written,
between the parties relating to the subject matter hereof. This Agreement may
not be modified or altered except by a written instrument duly executed by the
parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as
set forth below.
GARDNER SOLUTION 2000, L.L.C. FORECROSS CORPORATION
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(authorized signature) (authorized signature)
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(name) (name)
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(title) (title)
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(date) (date)