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EXCLUSIVE DISTRIBUTOR AGREEMENT
EXCLUSIVE DISTRIBUTOR AGREEMENT ("Agreement") dated as of December 31 .
1993 by and between IMRS OPERATIONS INC. d/b/a IMRS INC., a Delaware
corporation with its principal place of business at 777 Long Ridge Road.
Stamford. Connecticut 06902. U.S.A. (hereinafter referred to as "Developer")
and Consultores de Integracion de Sistemas S.A. de C.V. a Mexican company with
its principal place of business at Marsella 17. Cot. Juarez. Mexico. D.F. 06600
(hereinafter referred to as "Distributor").
WHEREAS, Developer has developed certain computer programs and related
documentation more particularly described in Schedule A attached hereto (the
"Products") and desires to grant distributor the right to market and distribute
the Products in Mexico; and
WHEREAS, Distributor is in the business of marketing and distributing
computer-related products and desires to have Developer grant to it the right
to market and distribute the Products in Mexico.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, the parties hereto agree as
follows: acknowledge.
1. LICENSE
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1.1 Exclusive Distribution License
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Upon the terms and subject to the conditions of this Agreement,
Developer hereby grants to Distributor an exclusive, non-transferrable right
and license to market and distribute the Products in Mexico (the "Territory").
Distributor shall distribute the Products to existing and potential customers
of Developer located in the Territory (the "End-Users") who enter into an
End-User License Agreement (as hereinafter defined). Except for certain modules
of the Maintenance Version (as hereinafter defined) provided by Developer
solely, to Distributor hereunder, the Products shall be in executable object
code form only and Distributor shall have no other right to the source code of
such Products. The Products distributed to End-Users shall be in executable
object code form only. Distributor shall not modify, translate, decompile, nor
create or attempt to create, by reverse engineering or otherwise, the source
code from the object code of the Products supplied hereunder, or adapt the
Products in any way or for use to create a derivative work. Distributor may
not, and may not permit End-Users to use, reproduce, sublicense. distribute or
dispose of the Products, in whole or in part, except as expressIy permitted
under this Agreement.
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1.2 The Territory.
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Distributor may market and distribute the Products soleIy within
Mexico. Distributor shall not have the right to establish third-party
agreements for the license, sale, installation and/or support of the Products
in the Territory or elsewhere, without the prior written approval of Developer,
which approval may be withheld for any reason.
1.3 License of the Products to End-Users: Other Responsibilities
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of Distributor.
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(a) In connection with Distributor's license and distribution of the
Products to End-Users, Distributor will have End-Users execute an IMRS Software
License Agreement in the form attached hereto as Schedule B (the "End-User
License Agreement"). Distributor may not negotiate the terms of the End-User
License Agreement with any prospective End-User or agree to any conflicting,
different or additional terms from those set forth in the End- User License
Agreement without Developer's prior written consent. Developer shall have no
liability to Distributor in the event any prospective End-User refuses to agree
to enter into an End-User License Agreement.
(b) Distributor will at all times during the term hereof use all
reasonable efforts to promote and increase sales of Products throughout the
Territory, and will work diligently to obtain orders for Products. Developer
shall, during the term hereof, adopt such policies, strategies, prices,
customer license terms and conditions, and decisions which will reasonably
support Distributor in promoting and increasing sales of Products throughout
the Territory and shall respond to Distributor as soon as reasonably
practicable with respect to the foregoing.
(c) Distributor will promote the sale of Products throughout the
Territory to End-Users by means of personal visits, presentations, and
correspondence with such End-Users.
(d) Distributor hereby acknowledges that prompt, courteous and
professional service of all End-Users and the fostering and maintenance of of
good relations with End-Users is of paramount importance to Developer, and
Distributor hereby agrees to use reasonable efforts to so serve End-Users and
promote such relations with End-Users. Distributor shall call upon End-Users
regulary, provide assistance and information to End- Users as requested by
End-Users or Developer, serve as liaison between End-Users and Developer, and
comply with such policies and procedures as Developer may from time to time
communicate to Distributor.
(e) Distributor shall take all necessary steps to ensure that it and
all of its sales personnel are fully familiar with the Products, Developer's
then-current suggested price list, and applicable Developer policies and
procedures.
(f) Distributor shall attend such sales meetings for, among other
things,
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training and education as Developer shall reasonably require. Developer shall
be responsible for the reasonable cost of any travel or lodging for attendance
at such meetings outside of the Territory required by Developer.
(g) All payments by End-Users for Products shall be made directly to
Distributor, and Distributor shall so advise Developer of the End-Users to whom
sales are made.
(h) Distributor will not incur or create any liability on behalf of
Developer or in any way pledge or purport to pledge the credit of Developer.
(i) Distributor will use reasonable efforts to help Developer to:
(i) implement the sales strategy and marketing strategy for Developer in the
Territory' (ii) prepare any market survey or other marketing or sales report
reasonably requested by Developer from time to time: (iii) inquire as to the
financial situation of End-Users and collect any outstanding bills from
End-Users; and (iv) inform Developer promptly of commercial, financial,
technical or other information which would be of interest to Developer,
including but not limited to foreseeable developments regarding End-Users'
needs of Distributor becomes aware.
(j) Distributor will observe all directions and instructions given
by Developer in relation to Developer's commercial policy, delivery and payment
terms and the distribution of Products, and, in the absence of any such
directions or instructions in relation to any particular matter, will act in
such manner as Distributor reasonably considers to be most beneficial to the
best interests of Developer. Notwithstanding the foregoing, Distributor shall
be free to fix the price for each end-user license which shall be marketed
within the Territory.
(k) Distributor will observe and take all necessary or appropriate
steps to observe the standards and technical specifications applicable to
Developer's business as may be communicated from time to time by Developer to
Distributor.
(l) Developer shall be the sole source of all copies of the Products
or their components distributed by Distributor under the terms of this
Agreement. Furthermore, Developer's and the Product names shall appear on the
initial screen in all cases. Distributor may mark all such products and
materials with its own names or logos to indicate that the Distributor is a
marketer of the Products, provided that any such label or lettering is no
larger in size than that used for the name and logo of Developer.
1.4 Product Changes
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Developer retains the right, in its sole discretion, to upgrade or
modily the Products from time to time. In addition, upon thirty (30) days prior
wrritten notice to Distributor, Developer may add or delete Products from
Schedule A. Upon receipt of any
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such notice of any upgrade or modification, or upon the expiration of the
notice period set forth above for additions or deletions to Schedule A,
Distributor shall cease to market and distribute earlier versions of the
Products and/or Products deleted from Schedule A.
1.5 License to Use Trademark and Trade Name.
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Any and all trademarks and trade names which Developer uses in
connection with the license granted hereunder are and shall remain the
exclusive property of Developer. Nothing contained in this Agreement shall be
deemed to give Distributor any right, title or interest in any trademark or
trade name of Developer relating to the Products. Subject to notice from
Developer in writing which modifies or cancels such authorization, during the
term of this Agreement, Distributor may use at no charge the trademarks and
trade names specified by Developer in writing for normal advertising and
promotion of Products.
2. PRICE. PAYMENT AND SHIPMENT.
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2.1 Price.
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Distributor shall. in its sole discretion, establish software license
fees, lease fees, installation fees, ongoing support and maintenance fees and
license renewal fees for the Products (collectively, the "Prices"). Developer's
current suggested Prices for each Product are set forth in Schedule C.
Developer may increase or decrease the Prices for any or all Products upon
written notice to Distributor.
2.2. Orders, Payment and Shipment.
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Upon Developer's receipt of a written order from Distributor (each an
"Order") together with a copy of an executed End-User License Agreement,
Developer will ship to Distributor the designated quantities of the Products.
At Distributor's expense, the Products shall be shipped by Developer to
Distributor F.O.B. origin, freight pre-paid, with risk of loss to pass to
Distributor upon delivery of the Products by Developer to a common carrier. The
terms and conditions of this Agreement shall apply to all Orders submitted to
Developer by Distributor and supersede any different or additional terms on any
Distributor Order form. Orders issued by Distributor to Developer are solely
for the purpose of requesting delivery dates and quantities. All Orders shall
be subject to acceptance by Developer. Developer shall use reasonable efforts
to deliver accepted Orders but shall not be liable for any damages to
Distributor or to any third party caused by Developer's delay or error in
filling, or failure to fill, any Orders for any reason. Developer shall have no
obligation to accept any Order. Except as otherwise provided herein, all fees
and expenses payable hereunder which Developer issues an invoice to Distributor
shall be due and payablc thirty (30) days from the date of the invoice. A late
payment charge of the lesser of one and one-half percent (1.5%) per month or
the highest interest rate allowed by applicable law shall be charged upon all
unpaid amounts due hereunder for more than thirty (30) days. Distributor shall
reimburse Developer for any out-of-pocket expenses incurred at Distributor's
request.
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including, without limitation, telephone, shipping, insurance and
travel-related expenses. Notwithstanding the above, upon notice to
Distributor, Developer may ship the Software directly to Distributor's customer
2.3 Reporting; Royalties.
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Distributor shall submit Quarterly Sales and Royalty Reports and make
payments to Developer as provided herein. All royalties paid to Developer shall
be based upon Developer's list prices in U.S. Dollars, except as otherwise
agreed by Developer.
Software license fees, ongoing maintenance fees and license renewal
fees associated with new Software license agreements for Product sites in the
Territory, shall be allocated and distributed as follows:
Gross Software Revenue Generated % to Distributor
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US$0 - $399,999 30%
US$400,000 - $999,999 40%
US$1,O00,000 + 50%
However, the foregoing allocation of such fees associated with new Software
license agreements involving a headquarter Product or other site license
situated outside of the Territory may be subject to reduced percentages
to Distributor due to royalties owed to other IMRS entities, affiliates, or
distributors located within the Territory in which such licensee is
headquartered, who may have also participated in the sale. Each such situation
will be evaluated individually and a final decision on the royalty due will be
based upon each party's relative contribution and will be made in IMRS's sole
discretion.
Installation, consulting, training and support fees associated with the
Produicts are due and payable to the party performing the services.
Distributor will submit a report to Developer accurately identifying
the Software license fees, maintenance fees, and any other fees set forth
above, at the earliest possible time, but in no event later than ten (10) days,
following the end of each calendar month. Payment by Distributor of the
applicable royalty fees to Developer shall accompany the report; provided
however, that Developer shall have the reasonable right to inspect
Distributor's books from time to time during the term hereof and for a one (1)
year period after the termination of this Agreement for purposes of verifying
the royalties payable to Developer. In addition, Distributor shall report the
acquisition of each new client for the Software system to Developer within ten
(10) days of accepting the order.
2.4 Inspection and Acceptance.
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Distributor shall inspect all Products immediately upon delivery and
shall, within seven (7) calendar days, give written notice to the common
carrier and Developer of any claim for damages or shortages. Distributor shall
give written notice to Developer within thirty (30) calendar days of delivery
in the event that any Product does not conform with the terms of this
Agreement. If Distributor fails to give any such notice, the Products shall be
deemed accepted for all purposes of this Agreement.
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2.5 Taxes.
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In addition to the Prices and other fees payable hereunder, Distributor
shall record and pay any federal, state, local or other duties, withholding and
excise taxes, now or hereafter applied on the sale, transportation, import,
export, licensing or use of the Products including sales tax, value added tax
or similar tax. Any taxes imposed by federal, state or any local government or
any amount in lieu thereof, including interest and penalties thereon, paid or
payable at any time by Developer in connection with Developer's license to
Distributor, exclusive of taxes based on Developer's net income, shall be borne
by Distributor.
Distributor shall co-operate with and assist Developer, as reasonably
necessary, to obtain United States tax credits for any duties or taxes
described in this Section 2.5 which may be credited to and/or recovered by
Developer and applied by Developer to reduce its United States tax liability.
In the event Developer obtains any such tax credits, Developer shall notify
Distributor of the amount thereof and Distributor shall be entitled to apply
such amount against future amounts payable by Distributor to Developer
hereunder.
3. MAINTENANCE AND SUPPORT.
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3.1 Distributor Support.
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Distributor shall remain solely responsible for all installation,
maintenance, consulting and support services to the End-Users with regard to
the Products. Developer agrees to deliver to Distributor together with the
first Order delivered to Distributor a maintenance version of such Products
which shall include certain modules of the software Products in source code
form (the "Maintenance Version"). The Maintenance Version shall be used solely
by Distributor's personnel providing installation, maintenance, consulting or
support services to End-Users and shall only be used at Distributor's site. As
mutually agreeable, Developer or Distributor may each provide local support to
the sites of multi-location clients, each on behalf of the other where the
provisions of such support will enhance the quality of support provided to the
client. Such services will be provided at the local billing rate or such
alternative billing rate as shall be agreed between the parties. The party
providing the support shall receive all revenues arising therefrom unless
otherwise agreed. Furthermore, it is understood that travel expenses, if any,
are to be borne by the client utilizing the support services or by the party
providing the services. Distributor's failure to use or maintain the
confidentiality of the Maintenance Version pursuant to the terms of this
Agreement shall be deemed a material breach of this Agreement.
3.2 Audit Rights.
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Distributor shall maintain accurate books and records of all End-User
License Agreements granted for the Products in the Tcrritory, the End-Users
receiving maintenance, consulting and support services, and the Developer
Support Fees payable under this
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Agreement. Upon reasonable notice to Distributor, Distributor shall make such
books and records available to Developer, at Distributor's place of business
during normal business hours, to audit the payments being made by Distributor
hereunder.
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3.3 End-User Training and Developer Consulting Services.
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Distributor shall be solely responsible for the training of End-Users.
Developer shall be available at its then current standard rates to provide
training, special enhancements, customization and other special work or
services to either Distributor or End-Users.
4. CONFIDENTIALITY AND PROPRIETARY RIGHTS.
4.1 Confidentiality.
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Distributor acknowledges that in the course of dealings between the
parties, Distributor may acquire information about Developer, its business
activities and operations, its technical information and trade secrets,
including but not limited to the Products, all of which are highly confidential
and proprietary to Developer (the "Confidential Information"). Confidential
Information shall not include information generally available to or known by
the public, or information independently developed outside the scope of this
Agreement. Distributor shall hold all such Confidential Information in strict
confidence and shall not reveal or use the same except pursuant to a court
order or upon request of Developer. The Confidential Information shall be
safeguarded with at least as great a degree of care as Distributor uses to
safeguard its own most confidential materials or data relating to its own
business, but in no event less than a reasonable degree of care.
4.2 Proprietary Rights.
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Distributor acknowledges and agrees that the Products, and all copies
thereof, constitute valuable trade secrets of Developer and/or proprietary and
confidential information of Developer and title thereto remains in Developer.
Ownership of all applicable copyrights, trade secrets, patents and other
intellectual property rights in the Products are and shall remain vested in
Developer. All other aspects of the Products, including without limitation,
algorithms, models, programs, methods of processing, design and structure of
individual programs and their interaction and programming techniques employed
therein shall remain the sole and exclusive property of Developer and shall not
be sold, revealed, disclosed or otherwise communicated, directly or indirectly,
by Distributor to any person, company or entitv whatsoever other than as
expressly set forth herein. The copyright notice and restricted rights legends
contained in the Products shall appear on all tapes, diskettes and other
tangible media distributed by Distributor.
4.3 Specific Remedies.
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If Distributor commits a breach of any of the provisions of Sections
4.1 or 4.2 above, Developer shall have, in addition to all other rights in law
and equity, (a) the right to have such provisions specifically enforced by any
court having equity jurisdiction, it being acknowledged and and agreed that any
such breach will cause irreparable injury to Developer and
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that money damages will not provide an adequate remedy, and (b) the right to
require Distributor to account for and pay to Developer all compensation,
profits, monies or other tangible benefits (collectively "Benefits") derived
or received as the result of any transactions constituting a breach of any of
the provisions of this Article 4, and Distributor hereby agrees to account for
and pay such Benefits.
4.4 Covenant Not to Compete.
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During the term of this Agreement and for a period of one (1) year
after the termination hereof for any reason, Distributor will not market, or
attempt to market, a computer program which competes in any way with the
Products in the areas of consolidation, financial information, financial
transaction processing, reporting, data collection, or modeling, including but
not limited to the use of personal computers, nor which competes with any
modification, alteration or enhancement to the Products which is developed
during the term of this Agreement.
5. LIMITED WARRANTY.
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5.1 Limited Warranty.
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For ninety (90) days after delivery of a Product to Distributor,
Developer warrants that media upon which the Products are delivered shall be of
good quality and workmanship. Upon written notice from Distributor of defective
media for a Product, Developer shall use reasonable efforts to promptly provide
replacement media.
5.2 Disclaimer of Warranties.
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EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, THE PRODUCTS
ARE PROVIDED "AS IS". DEVELOPER SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS OR DEFECTS IN
THE TAPE, DISKETTE OR OTHER TANGIBLE MEDIA AND DOCUMENTATION, OPERATION OF THE
PRODUCTS, AND ANY PARTICULAR APPLICATION OR USE OF THE PRODUCTS.
6. LIMITATION OF LIABILITY.
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IN NO EVENT SHALL DEVELOPER BE LIABLE FOR ANY LOSS OF PROFIT OR ANY
OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF ACTION ARISING OUT
OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING
FROM MALFUNCTION OR DEFECTS IN THE PRODUCTS. DEVELOPER'S MAXIMUM
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LIABILITY HEREUNDER IS EXPRESSLY LIMITED TO THE AMOUNT PAID UNDER THIS
AGREEMENT BY DISTRIBUTOR TO DEVELOPER WITHIN THE SIX (6) MONTH PERIOD
IMMEDIATELY PRECEDING THE CAUSE GIVING RISE TO THE CLAIM.
7. DISTRIBUTOR OBLIGATIONS.
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7.1 Marketing Efforts.
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Distributor agrees to use its best efforts to promote the sale of the
Products in the Territory. Distributor agrees to permit Developer to review all
of Distributor's promotion and advertising material for the Products prior to
use. Distributor shall not use and shall withdraw and retract any promotion or
advertising that Developer finds unsuitable, or is in breach of the terms of
this Agreement.
7.2 Prohibited Practices.
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Distributor may not make any contracts or commitments on behalf of
Developer nor make any warranties or other representations regarding the
Products other than those authorized herein or by Developer in a separate
writing.
7.3 Export Notice.
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Distributor agrees to provide Developer with reasonable advance notice
of each country to which it intends to export the Products. Prior to exporting
to a foreign country for the first time, Distributor shall provide Developer
with a reasonable opportunity to file such proprietary rights notices,
applications, and other documents as Developer determines to be reasonably
necessary to protect in such country the proprietary rights associated with the
Products. Distributor agrees at Developer's expense to cooperate with Developer
in the protection of such proprietary rights in each country to which it
exports the Products.
7.4 Compliance with Laws.
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Distributor agrees to comply with all applicable laws and regulations,
both foreign and domestic, in its performance under this Agreement, including,
but not limited to, domestic and foreign export/import laws and regulations.
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8. TERMS AND TERMINATION.
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8.1 Term.
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This Agreement shall have an initial term of one (1) year from the date
first above written (the "Initial Term"), and shall thereafter automatically
renew for successive one (1) year periods (each a "Renewal Term"), unless
earlier terminated in accordance with the terms of this Agreement. Either party
may cancel this Agreement effective on the last day of the Initial Term, or any
Renewal Term, by serving written notice of such termination on the other party
at least ninety (90) days prior to the end of the Initial Term or any Renewal
Term as the case may be. Notwithstanding anything to the contrary contained
herein, Developer may cancel this Agreement effective on the last day of the
sixth (6th) calendar month of the Initial Term if the total Gross Software
Revenue during the Initial Term does not exceed US $100,000 by such date, such
cancellation to be effected by written notice delivered to Distributor not
later than the last day of the ninth (9th) calendar month of the Initial Month.
8.2 Developer Termination.
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This Agreement may be terminated immediately by Developer under any of
the following conditions:
(a) if one of the parties shall be declared insolvent or bankrupt:
(b) if a petition is filed in any court to declare one of the
parties bankrupt or for a reorganization under the Backruptcy Code or any
similar statute and such petition is not dismissed in ninety (90) days or if a
Trustee in Bankruptcy or a Receiver or similar entity is appointed for one of
the parties;
(c) if Distributor does not pay Developer within thirty (30) days
from the date that any payments are due hereunder;
(d) if Distributor breaches the provisions of Sections 4.1 or 4.2 of
this Agreement; or
(e) if Distributor otherwise materialIy breaches the terms of this
Agreement, and such breach is not cured within thirty (30) days after written
notice of such breach is given by Developer.
8.3 Duties Upon Termination.
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(a) Provided termination is not a result of a material breach of
Sections 4.1 or 4.2, the parties agree to continue their cooperation in order
to effect an orderly termination of their relationship. Distributor may
continue running the Maintenance Version
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solely for purposes of providing maintenance to End-Users granted licenses
pursuant to an End-User License Agreement prior to termination. Upon
termination, Distributor shall have no right to order or receive any additional
copies of the Products and all of Distributor's rights and licenses granted
hereunder shall immediately cease. Within thirty (30) days of termination,
Distributor shall return all copies of any promotional materials, marketing
literature, written information and reports pertaining to the Products that
have been supplied by Developer.
(b) Upon termination of this Agreement for any reason, Distributor
shall forthwith return all documentation and materials relating thereto to
Developer. Termination of this Agreement shall not relieve Distributor of any
financial obligations to Developer which remain unsettled at the date of
termination, nor of the terms relating to proprietary rights. trade secrets, or
non compete restrictions; provided, further, that if this Agreement is
terminated for any reason, Developer shall have the option, but not the
obligation to assume any or all of Distributor's third party agreements
(including End-User Agreements) relating to the Products and to receive any and
all fees therefrom.
9. INDEMNIFICATION.
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9.1 Copyright Indemnification.
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Developer shall indemnify, defend and hold Distributor harmless from
any claims, demands, liabilities or expenses, including reasonable attorneys'
fees, directly resulting from any infringement or violation of any copyright
with respect to the Products, as so awarded by a final judgment against
Distributor by a court of competent jurisdiction that the Products infringe
any third party's copyright, Developer shall, in its sole discretion:
(a) procure for Distributor the right to continue to use, distribute
and sell the Products at no additional expense to Distributor;
(b) provide Distributor with a non-infringing version of the
Products with substantially similar functionality, or
(c) notify Distributor that the Products are being withdrawn from
the market and immediately terminate this Agreement.
9.2 Cooperation by Distributor.
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Notwithstanding Section 9.1 of this Agreement, Developer is under no
obligation to indemnify and hold Distributor harmless unless:
(a) Developer shall have been promptly notified of the
suit, action, proceeding or claim by Distributor and furnished by Distributor
with a copy of each communication, notice or other action relating to said
suit, action, proceeding or claim:
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(b) Developer shall have the right to assume sole authority to
conduct the trial or settlement of such suit, action, proceeding or claim or
any negotiations related thereto at Developer's expense: and
(c) Distributor shall provide reasonable information and assistance
requested by Developer in connection with such claim or suit.
9.3 Distributor Indemnification.
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Distributor shall indemnify, defend and hold Developer harmless from
any claims, demands, liability or expenses, including reasonable attorneys'
fees, incurred by Developer as a result of any claim or proceeding against
Developer arising out of or based upon (i) the combination, operation or use of
the Products with any hardware, products, programs or data not supplied or
approved in writing by Developer, if such infringement would have been avoided
but for such combination, operation or use or (ii) modification of the Products
by Distributor or End-Users.
10. GENERAL.
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10.1 Force Majeure.
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Neither party shall be liable or deemed to be in default for any delay
or failure in performance (other than the payment of money) under this
Agreement or interruption of service resulting directly or indirectly from
acts of God, or any causes beyond the reasonable control of such party.
10.2 Jurisdiction and Venue.
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This Agreement shall be governed by and construed in accordance with
laws of the State of Connecticut, U.S.A. Jurisdiction for litigation of any
dispute, controversy or claim arising out of or in connection with this
Agreement, or the breach thereof shall be only in the Federal or the State
court with competent jurisdiction located in Stamford, Connecticut.
10.3 Entire Agreement.
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This Agreement, including the Schedules attached hereto, constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all previous proposals, both oral and written,
negotiations, representations, commitments, writings and all other
communications between the parties. This Agreement may not be modified except
by a writing signed by a duly authorized representative of each of the parties.
10.4 Independent Contractors.
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It is expressly agreed that Developer and Distributor are acting
hereunder as independent contractors and under no circumstances shall any of
the employees of one party be deemed the employees of the other for any
purpose. This Agreement shall not be construed as authority for either party to
act for the other party in any agency or other capacity, or to make commitments
of any kind for the account of or on behalf of the other except to the extent
and for the purposes provided for herein.
10.5 Assignment.
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This Agreement is not assignable by either party hereto without the
consent of the other, except that this Agreement shall be assignable by
Developer to an affiliated entity or upon the sale of the right to license and
sublicense the Products to the purchaser of said right. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns.
10.6 Severability and Waiver.
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If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, such determination shall
not affect the validity or enforceability of any other part or provision of
this Agreement. No waiver by any party of any breach of any provisions hereof
shall constitute a waiver unless made in writing signed by the party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
a duly authorized representative as of the date set forth above.
DISTRIBUTOR: DEVELOPER:
CONSULTORES DE INTEGRACION IMRS OPERATIONS INC. d/b/a
DE SISTEMAS, S.A. de C.V. IMRS INC.
By /s/ GUILLERMO NIETO CRUZ By: /s/ LUCY RICCIARDI
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Name: Guillermo Nieto Cruz Name: Lucy Ricciardi
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Title: Administrador Title: Vice President and CFO
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