EXHIBIT 10.7
SERVICES AND SOFTWARE LICENSE AGREEMENT
THIS SERVICES AND SOFTWARE LICENSE AGREEMENT ("Agreement") dated as of June 1,
2005, by and between PARAMOUNT DEVELOPMENT CORPORATION LIMITED ("Paramount") and
ASHTON WOODS USA L.L.C. ("Customer").
1. PAYMENTS
1.1 QUARTERLY FEE. In consideration for the services and license
provided herein, Customer shall pay to Paramount a fee of $600
for each Closing (as hereinafter defined) which occurred
during the Customer's previous fiscal quarter. Customer shall
pay such quarterly fee by the thirtieth day of each fiscal
quarter. If Customer fails to pay the quarterly fee by the
thirtieth day of each fiscal quarter, then in addition to the
quarterly fee, Customer shall pay a late charge on the
outstanding balance of the quarterly fee at a rate per annum
equal to eighteen percent (18%) from such thirtieth day until
such quarterly fee is paid in full. Such late charge shall be
computed on the basis of a 360-day year of twelve 30-day
months.
1.2 SUPPORTING DOCUMENTATION. By the tenth business day of each
calendar month, Customer shall provide to Paramount with a
report regarding the number of Closings during the previous
calendar month and reasonably detailed support for the
information in the report.
1.3 AUDIT RIGHTS. Paramount may from time to time during the term
of this Agreement have access to and the right to examine any
of Customer's and its Affiliates' (as hereinafter defined)
pertinent books, documents, papers, or other records to
determine if Customer is in compliance with the provisions of
Section 1.1. Such audits shall be conducted upon reasonable
notice during Customer's or its Affiliate's ordinary business
hours and be subject to appropriate provisions protecting the
confidentiality of the data. Audits shall not be conducted
more often than once every twelve (12) months.
1.4 TAXES. Customer shall promptly and directly pay, and shall
indemnify and hold Paramount harmless from, any taxes of any
jurisdiction that may be assessed or imposed on copies of the
Software, any documentation related to the Software delivered
to Customer, the license granted under this Agreement or the
services provided under this Agreement, or otherwise assessed
or imposed in connection with the transactions contemplated by
this Agreement, including, without limitation, sales, use,
excise, value added, personal property, export, import and
withholding taxes, excluding only taxes based upon Paramount's
net income and any payroll taxes related to those Paramount
employees providing services under this Agreement, and
Customer shall promptly reimburse Paramount for any such taxes
payable or collectible by Paramount. The fees and other
amounts payable by Customer to Paramount pursuant to Section 1
of this Agreement do not include such taxes.
1.5 CERTAIN REMEDIES FOR NONPAYMENT. If Customer fails to pay to
Paramount, within ten (10) days after Paramount makes written
demand therefor, any past-due amount payable under this
Agreement then, in addition to all other rights and remedies
which Paramount may have at law or in equity, Paramount may,
in its sole discretion and without further notice to Customer,
suspend performance of any or all of its obligations under
this Agreement (including its ongoing support services under
Section 4.1 and the Land Development Services (as hereinafter
defined) under Section 2.1) until all past due amounts are
paid in full.
2. LAND DEVELOPMENT SERVICES
2.1 Paramount shall provide to Customer and its Affiliates
services of Paramount's employees to assist Customer and its
Affiliates with the management and oversight of the Customer's
land development process in a manner and in substance
generally consistent with land development management services
provided by Paramount to Customer on the date hereof ("Land
Development Services"). Paramount's employees performing the
Land Development Services shall perform such services at those
locations reasonably requested by Customer and its Affiliates,
and shall report to Customer's President.
3. LIMITED LICENSE
3.1 GRANT. Paramount grants to Customer and its Affiliates a
personal, non-transferable, non-exclusive, license to use, in
accordance with this Agreement, Paramount's proprietary
software identified on Schedule A to this Agreement
("Software"), as the Software may be modified, revised and
updated from time to time, including, without limitation, in
accordance with Section 4.1(c) of this Agreement. The term of
the license granted hereunder for the proprietary software and
Documentation shall begin on the date this Agreement is
executed (the "Effective Date") and shall continue until this
Agreement is terminated in accordance with Section 8 of this
Agreement.
3.2 DESIGNATED LOCATION(s). The Software may be installed and used
only on server(s) operated by Customer or its Affiliates at
their business offices in the United States and on laptops and
hand-held devices used in Customer's and its Affiliates'
businesses (the "Designated Locations"). Furthermore, as
Paramount converts the software from a server-based program to
a web-based program hosted on Paramount's servers, Paramount
will provide Customer's and its Affiliates' employees with
access to Paramount's website in order to access the Software.
3.3 SCOPE. Customer and its Affiliates may use the Software only
in the ordinary course of their business operations and for
their own business purposes. Customer shall use the Software
only in accordance with the documentation provided by
Paramount and shall require that its Affiliates be bound by
this Agreement to the same extent as Customer.
3.4 COPIES. Customer and its Affiliates may use only the copies of
the Software and related documentation that are provided by
Paramount, except that Customer and its Affiliates may copy
the Software and documentation to the extent reasonably
necessary for routine backup and disaster recovery purposes.
4. PARAMOUNT'S OTHER OBLIGATIONS RELATED TO THE SOFTWARE
4.1 ONGOING SUPPORT SERVICES. Beginning on the Effective Date,
Paramount shall provide the following ongoing support services
to Customer and its Affiliates:
(a) Paramount shall provide to Customer and its
Affiliates, during Paramount's normal business hours,
telephone assistance regarding Customer's and its
Affiliates' proper and authorized use of the latest
release of the Software and all releases of the
Software previously provided to Customer and its
Affiliates.
(b) Paramount shall provide to Customer and its
Affiliates, during Paramount's normal business hours,
commercially reasonable efforts in solving problems
that arise in connection with Customer's and its
Affiliates' proper and authorized use of the Software
or in correcting failures of the Software to perform
in accordance with the documentation provided to
Customer and its Affiliates. Customer shall
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provide to Paramount reasonably detailed
documentation and explanation, together with
underlying data, to substantiate any such problem or
failure and to assist Paramount in its efforts to
diagnose and correct the problem or failure. If,
within a commercially reasonable time, given the
severity of the failure, Paramount and Customer or
its Affiliate have been unable to diagnose a problem
through phone support, support services shall be
provided by Paramount at the Designated Location(s)
if necessary to diagnose or resolve the problem.
(c) Paramount shall provide to Customer Paramount's
periodic modifications, revisions and updates to the
Software which Paramount incorporates into the
Software without additional charge. All
modifications, revisions and updates shall be
furnished by means of new releases of the Software
and shall be accompanied by updates to any related
documentation whenever Paramount determines that such
updates are necessary. To the extent any
modification, revision or update requires Customer or
its Affiliates to migrate data to the updated
Software, Paramount shall perform such migration at
its own expense.
4.2 CONSULTING AND OTHER SOFTWARE-RELATED SERVICES. At Customer's
or its Affiliates' reasonable request, provided that Customer
is in compliance with its payment obligations under Paragraph
1.1. Paramount shall provide to Customer and its Affiliates
consulting services, custom modification programming, support
services relating to custom modifications, assistance with
data transfers, system restarts and reinstallations, and other
specialized support services with respect to the Software, in
each case, to the extent provided at the Customer's request
for such additional reasonable fee as the parties shall agree.
These services shall be provided by Paramount at the
Designated Location(s) if and when Customer or its Affiliate
reasonably determines that on-site services are necessary.
Paramount agrees that personnel supplied for Customer and its
Affiliates consulting services will have appropriate technical
and/or business skills. Paramount's project coordinators will
periodically report the project status to Customer or its
Affiliate, as applicable, and coordinate with all other areas
of Paramount.
5. CUSTOMER'S OTHER SOFTWARE OBLIGATIONS
5.1 PROCUREMENT OF HARDWARE. Customer shall be responsible, at its
expense, for procuring, maintaining and updating the computer
hardware, systems software and other items on which the
Software will be used.
5.2 ACCESS TO FACILITIES AND EMPLOYEES. Customer and its
Affiliates shall provide to Paramount access to the Designated
Location(s) and Customer's and its Affiliates' equipment and
employees, and shall otherwise cooperate with Paramount, as
reasonably necessary for Paramount to perform its training,
support and other obligations under this Agreement. Customer
and its Affiliates shall devote all equipment, facilities,
personnel and other resources reasonably necessary to install
the Software and begin using the Software in production on a
timely basis as contemplated by this Agreement.
6. WARRANTIES AND LIMITATIONS
6.1 RIGHT TO LICENSE; NO INFRINGEMENT. Paramount warrants to
Customer that it has the full legal right to grant to Customer
the license granted under this Agreement, and that the
Software and any related documentation in the form delivered
to Customer and its Affiliates by Paramount and when properly
used for the purpose and in the manner specifically authorized
by this Agreement, do not infringe upon any United States or
Canadian patent or copyright or any trade secret or other
proprietary right of any person. Paramount shall defend,
indemnify, and hold Customer and its Affiliates harmless from
and against all costs, losses, expenses, and damages arising
from third-party claims
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related to Paramount's breach of the foregoing warranty.
Paramount shall have no liability under this Section 6.1
unless Customer gives written notice to Paramount (in
accordance with Section 9.1) within fifteen (15) days after
Customer becomes aware of any such potential infringement
claim that may be initiated against Customer or its Affiliate,
and allows Paramount to have sole control of the defense or
settlement of the claim. If Customer's or its Affiliate's use
of the Software is enjoined, then Paramount shall have the
option, at its expense, to:
(a) modify or replace all or the infringing part of the
Software so that it is no longer infringing, provided
that the Software functionality does not change in
any material adverse respect; or
(b) procure for Customer or its Affiliate the right to
continue using the infringing part of the Software.
In no event shall Paramount's total liability exceed the
limitations as described in Paragraphs 6.4 and 6.5.
6.2 EXCLUSION FOR UNAUTHORIZED ACTIONS. Paramount shall have no
liability under any provision of this Agreement with respect
to any performance problem, claim of infringement or other
matter to the extent attributable to any unauthorized or
improper use or modification of the Software, any unauthorized
combination of the Software with other software, any use of
any version of the Software other than the latest release of
the Software that is provided to Customer and its Affiliates,
or any breach of this Agreement by Customer and its
Affiliates.
6.3 FORCE MAJEURE. Paramount shall not be liable for, nor shall
Paramount be considered in breach of this Agreement due to,
any failure to perform its obligations under this Agreement as
a result of a cause beyond its control, including any act of
God or a public enemy, act of any military, civil or
regulatory authority, change in any law or regulation, fire,
flood, earthquake, storm or other like event, disruption or
outage of communications, power or other utility, or any other
cause, whether similar or dissimilar to any of the foregoing.
6.4 Disclaimer and Exclusions. EXCEPT AS EXPRESSLY STATED IN THIS
AGREEMENT, PARAMOUNT MAKES NO REPRESENTATIONS OR WARRANTIES,
ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, REGARDING THE SOFTWARE OR ANY OTHER MATTER PERTAINING
TO THIS AGREEMENT. PARAMOUNT'S TOTAL LIABILITY UNDER THIS
AGREEMENT SHALL UNDER NO CIRCUMSTANCES EXCEED THE TOTAL AMOUNT
ACTUALLY PAID BY CUSTOMER TO PARAMOUNT UNDER THIS AGREEMENT.
NOTWITHSTANDING ANY OTHER PROVISION UNDER THIS AGREEMENT,
PARAMOUNT MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR
WRITTEN, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, REGARDING
ANY THIRD PARTY HARDWARE, SOFTWARE OR SERVICES. UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY
OTHER PERSON FOR LOST REVENUES, LOST PROFITS, LOSS OF
BUSINESS, OR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY
NATURE, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT THE
POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED.
6.5 OTHER LIMITATIONS. The warranties made by Paramount in this
Agreement, and the obligations of Paramount under this
Agreement, run only to Customer and its Affiliates, but not
their customers or any other persons. Under no circumstances
shall any other
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person (other than the Customer's Affiliates) be considered a
third party beneficiary of this Agreement or otherwise
entitled to any rights or remedies under this Agreement.
Customer and its Affiliates shall have no rights or remedies
against Paramount except as specifically provided in this
Agreement. No action or claim of any type relating to this
Agreement may be brought or made by Customer or its Affiliate
more than one (1) year after Customer or its Affiliate first
has knowledge of the basis for the action or claim.
7. CONFIDENTIALITY, OWNERSHIP AND RESTRICTIVE COVENANTS
7.1 CONFIDENTIAL INFORMATION. All business information disclosed
by one party to the other in connection with this Agreement
shall be treated as confidential information unless it is or
later becomes publicly available through no fault of the other
party or it was or later is rightfully developed or obtained
by the other party from independent sources free from any duty
of confidentiality. The terms and provisions of this Agreement
as well as all negotiations, proposals and other written and
oral communications between the parties in connection herewith
shall be treated as confidential information. During the term
of this Agreement and for two (2) years following the
termination of this Agreement, each party's confidential
information shall be held in strict confidence by the other
party, using the standards generally accepted in the industry
or the same standard of care as it uses to protect its own
confidential information, whichever is greater and shall not
be used or disclosed by the other party for any purpose except
as necessary to implement or perform this Agreement, or except
as required by law provided that the other party is given a
reasonable opportunity to obtain a protective order. Without
limiting the generality of the foregoing, such confidential
information shall include Customer's and its Affiliates' data
and the details of Customer's and its Affiliates' computer
operations.
7.2 PARAMOUNT'S PROPRIETARY ITEMS. Customer acknowledges that the
Software and related documentation, the object code and the
source code for the Software, and other design features of the
Software, all ideas, methods, algorithms, formulae and
concepts used in developing or incorporated into the Software,
all future modifications, revisions, updates, releases,
refinements, improvements and enhancements of the Software,
all derivative works based upon any of the foregoing, and all
copies of the foregoing (referred to, collectively, as
"Proprietary Items") are trade secrets and proprietary
property of Paramount, having great commercial value to
Paramount. Customer acknowledges that the restrictions in this
Agreement are reasonable and necessary to protect Paramount's
legitimate business interests.
7.3 OWNERSHIP RIGHTS. All Proprietary Items provided to Customer
under this Agreement are being provided on a strictly
confidential and limited use basis. Title to all Proprietary
Items and all related patent, copyright, trademark, trade
secret, intellectual property and other ownership rights shall
remain exclusively with Paramount, except with respect to such
items that were created by Paramount specifically for or on
behalf of Customer and its Affiliates pursuant to a written
contract that vests title to such specifically created items
in Customer or its Affiliates. This Agreement is not an
agreement of sale, and no title, patent, copyright, trademark,
trade secret, intellectual property or other ownership rights
to any Proprietary Items are transferred to Customer or its
Affiliates by virtue of this Agreement. All copies of
Proprietary Items in Customer's and its Affiliates' possession
shall remain the exclusive property of Paramount and shall be
deemed to be licensed to Customer and its Affiliates during
the term of this Agreement.
7.4 DISCLOSURE RESTRICTIONS. All Proprietary Items in Customer's
or its Affiliate's possession, whether or not authorized,
shall be held in strict confidence by Customer and its
Affiliates, and Customer and its Affiliates shall take all
steps reasonably necessary to preserve the confidentiality
thereof. Customer shall not, directly or indirectly,
communicate, publish, display, loan, give or otherwise
disclose any Proprietary Item to any unauthorized person,
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or permit any unauthorized person to have access to or
possession of any Proprietary Item. Customer and its
Affiliates shall limit their use of and access to Proprietary
Items to only those of its employees, agents, and consultants
whose responsibilities require such use or access. Customer
and its Affiliates shall advise all such employees, agents,
and consultants before they receive access to or possession of
any Proprietary Items, of the confidential nature of the
Proprietary Items and require them to abide by the terms of
this Agreement. Customer and its Affiliates shall use the same
standard of care for protecting the Proprietary Items as
Customer and its Affiliates uses to prevent disclosure,
publication, or dissemination of its own proprietary
information. Customer and its Affiliates shall not be liable
for the inadvertent or accidental disclosure of Proprietary
Items if such disclosure occurs despite the exercise of the
same degree of care Customer and its Affiliates normally takes
to preserve its own such data or information.
7.5 USE RESTRICTIONS. Customer shall not do, nor shall it permit
any other person to do, any of the following:
(a) use any Proprietary Item for any purpose, at any
location or in any manner not specifically authorized
by this Agreement; or
(b) make or retain any copy of any Proprietary Item
except as specifically authorized by this Agreement;
or
(c) create or recreate the source code for the Software,
or re-engineer, reverse engineer, decompile or
disassemble the Software; or
(d) modify, adapt, translate or create derivative works
based upon the Software or Documentation, or combine
or merge any part of the Software with or into any
other software or documentation except as
contemplated by this Agreement for Customer's and its
Affiliates' own internal use; or
(e) refer to or otherwise use any Proprietary Item as
part of any effort to develop a program having any
functional attributes, visual expressions or other
features similar to those of the Software or to
compete with Paramount; or
(f) remove, erase or tamper with any copyright or other
proprietary notice printed or stamped on, affixed to,
or encoded or recorded in any Proprietary Item, or
fail to preserve all copyright and other proprietary
notices in any copy of any Proprietary Item made by
Customer; or
(g) sell, market, license, sublicense, distribute or
otherwise grant to any person, including any
outsourcer, vender, consultant or partner, any right
to use any Proprietary Item; or
(h) attempt to do any of the foregoing.
7.6 NOTICE AND REMEDY OF BREACHES. Customer shall promptly give
written notice to Paramount (in accordance with Section 9.1)
of any actual or suspected breach by Customer of any of the
provisions of this Section 7, whether or not intentional, and
Customer shall, at its expense, take all steps reasonably
requested by Paramount to prevent or remedy the breach.
7.7 ENFORCEMENT. Customer acknowledges that any breach of any of
the provisions of this Section 7 shall result in irreparable
injury to Paramount for which money damages could not
adequately compensate. If Paramount notifies Customer of a
breach in writing (in accordance with Section 9.1) and
Customer fails to cure the breach within thirty (30) days,
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then Paramount shall be entitled, in addition to all other
rights and remedies which Paramount may have at law or in
equity, to seek a decree of specific performance or to seek to
have an injunction issued by any competent court, requiring
the breach to be cured or enjoining all persons involved from
continuing the breach. The existence of any claim or cause of
action which Customer or any other person may have against
Paramount shall not constitute a defense or bar to the
enforcement of any of the provisions of this Section 7.
8. TERM AND TERMINATION
8.1 Unless terminated as provided herein, this Agreement shall be
effective from the Effective Date until the second (2nd)
anniversary of the Effective Date. This Agreement shall
automatically renew for successive one (1) year terms, unless
at least ninety (90) days prior to the second anniversary or
each succeeding one year anniversary thereafter, either party
gives the other party written notice (in accordance with
Section 9.1) of its intention not to renew this Agreement.
8.2 TERMINATION BY NONDEFAULTING PARTY. The nondefaulting party
may immediately terminate this Agreement, by giving written
notice of termination to the defaulting party (in accordance
with Section 9.1), upon the occurrence of any of the following
events:
(a) Customer fails to pay to Paramount, within thirty
(30) days after Paramount makes written demand
therefor, any past-due amount payable under this
Agreement (including interest thereon).
(b) Customer or its Affiliate breaches, in any material
respect, any of the provisions of Section 7 and fails
to cure the breach within forty five (45) days of
written notification by Paramount.
(c) Either party breaches any of its other obligations
under this Agreement and does not cure the breach
within forty five (45) days after the nondefaulting
party gives written notice to the defaulting party
(in accordance with Section 9.1) describing the
breach in reasonable detail.
(d) Either party dissolves or liquidates or otherwise
discontinues all or a significant part of its
business operations.
8.3 EFFECT OF TERMINATION. Within one (1) year after the
termination of this Agreement, whether under this Section 8 or
otherwise, Customer and its Affiliates shall discontinue all
use of the Software, Customer shall promptly return to
Paramount all copies of the Software, any related
documentation, and any other Proprietary Items then in
Customer's possession, and Customer shall give written notice
to Paramount (in accordance with Section 9.1) certifying that
all copies of the Software have been permanently deleted from
its computers. Customer shall remain liable for all payments
due to Paramount with respect to the period ending on the then
current term of the Agreement. The provisions of Section 7
shall survive any termination of this Agreement, whether under
this Section 8 or otherwise.
9. OTHER PROVISIONS
9.1 NOTICE. All notices, consents and other communications under
or regarding this Agreement shall be in writing and shall be
deemed to have been received on the earlier of the date of
actual receipt, the fifth business day after being mailed by
first class certified air mail, or the second business day
after being sent by a reputable overnight delivery service.
Any notice may be given by facsimile, provided that a signed
written original is
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sent by one of the foregoing methods within twenty-four (24)
hours thereafter. Customer's address for notices is 1080
Holcomb Bridge Road, Building 200, Suite 350, Roswell, Georgia
30076, Attention: Robert Salomon, fax: (770) 998-7494.
Paramount's address for notices is 3751 Victoria Park Avenue,
Toronto, Ontario M1W 3Z4, Attention: Seymour Joffe, fax: (416)
449-6438. Either party may change its address for notices by
giving written notice of the new address to the other party in
accordance with this Section.
9.2 DEFINED TERMS. As used in this Agreement, the following terms
have the following meanings:
(a) "Affiliate" means any corporation, firm, partnership
or other entity that directly or indirectly controls,
is controlled by or is under common control with a
party to this Agreement. As used herein, "control"
means ownership, directly or through one or more
Affiliates, of fifty percent (50%) or more of the
shares of stock entitled to vote for the election of
directors, in the case of a corporation, fifty
percent (50%) or more of the equity interests in the
case of any other type of legal entity, status as a
general partner in any partnership, manager of any
limited liability company operated under documents
providing authority for the limited liability company
manager similar to the authority of a general partner
in a partnership, or any other arrangement whereby a
party controls or has the right to control the board
of directors or equivalent governing body of a
corporation or other entity.
(b) "Change of Control" means (i) the sale of all or
substantially all of the assets of a party in one or
any related series of transactions, (ii) a merger or
consolidation of the party with any other entity,
whether or not the party is the surviving entity, if
following such merger or consolidation less than 50%
of the total voting power of the surviving entity is
held by those persons who held voting securities of
the party immediately prior to such merger or
consolidation, (iii) any other transaction or series
of related transactions, the result of which is a
change in ownership of more than 50% of the total
voting power of the party, or (iv) the entities
holding more than 50% of the total voting power of a
party engage in a transaction described in (i) -
(iii).
(c) "Closing" means the transference of the title to a
residence from the Customer or its Affiliate to the
buyer of the residence.
(d) "copy" means any paper, disk, tape, film, memory
device, or other material or object on or in which
any words, object code, source code or other symbols
are written, recorded or encoded, whether permanent
or transitory.
(e) "including" means including but not limited to.
(f) "person" means any individual, sole proprietorship,
joint venture, partnership, corporation, limited
liability company, limited liability partnership,
company, firm, bank, association, cooperative, trust,
estate, government, governmental agency, regulatory
authority, or other entity of any nature.
9.3 ASSIGNMENT. This Agreement will bind, benefit and be
enforceable by and against Paramount and Customer and, to the
extent permitted hereby, their respective successors and
assigns. Neither party shall assign this Agreement or any of
its rights hereunder, nor delegate any of its obligations
hereunder, without the other party's prior written consent.
Any Change in Control of a party, and any assignment by merger
or otherwise by operation of law, will constitute an
assignment of this Agreement by that party for the purposes of
this Section 9.3.
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9.4 RELATIONSHIP. The relationship between the parties created by
this Agreement is that of independent contractors and not
partners, joint venturers or agents and any of Paramount's
employees providing services under this Agreement shall not be
deemed to be Customer's or its Affiliates' employees.
9.5 ENTIRE UNDERSTANDING. This Agreement, which includes and
incorporates the Schedules referred to herein, states the
entire understanding between the parties with respect to its
subject matter, and supersedes all prior proposals, marketing
materials, negotiations and other written or oral
communications between the parties with respect to the subject
matter of this Agreement.
9.6 MODIFICATION AND WAIVER. No modification of this Agreement,
and no waiver of any breach of this Agreement, shall be
effective unless in writing and signed manually by an
authorized representative of the party against whom
enforcement is sought. Such assigned writing containing a
manual signature may be transmitted by electronically
confirmed facsimile telephone transmission, but no other
electronic embodiment or means of transmission (such as
electronic mail, irrespective of whether an electronic or
digital signature statute has been enacted in any relevant
jurisdiction) shall constitute either a writing or a signature
for purposes of this Section. No waiver of any breach of this
Agreement, and no course of dealing between the parties, shall
be construed as a waiver of any subsequent breach of this
Agreement.
9.7 SEVERABILITY. A determination that any provision of this
Agreement is invalid or unenforceable shall not affect the
other provisions of this Agreement.
9.8 HEADINGS. Section headings are for convenience of reference
only and shall not affect the interpretation of this
Agreement.
9.9 ARBITRATION. All disputes involving this Agreement, except
actions arising under the patent and copyright provisions of
the U.S. Code, and breaches of the provisions of Section 7,
shall be submitted to a binding arbitration by a panel of
three (3) arbitrators of the American Arbitration Association
under its rules and procedures in effect at the time of
submission. Such panel shall include only persons with
experience in the areas of information technology or computer
software licensing installation or implementation. Each party
shall choose one arbitrator, and the third arbitrator shall be
chosen by the two arbitrators selected by the parties. The
location of the arbitration hearing will be Atlanta, Georgia.
The costs of such arbitration shall be borne by the
non-prevailing party in such arbitration. The final
arbitration decision shall be enforceable by a court of
competent jurisdiction.
9.10 JURISDICTION AND PROCESS. In any court action relating to this
Agreement, (a) each of the parties irrevocably consents to the
exclusive jurisdiction and venue of the federal and state
courts located in the State of Georgia, (b) each of the
parties irrevocably consents to service of process by first
class certified mail, return receipt requested, postage
prepaid, to the address at which the party is to receive
notice in accordance with Section 9.1 and (d) the prevailing
party shall be entitled to recover its reasonable attorney's
fees (including, if applicable, charges for in-house counsel),
court costs and other legal expenses from the other.
9.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as a
sealed instrument as of the day and year first above written.
PARAMOUNT DEVELOPMENT CORPORATION
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By:
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Its:
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ASHTON WOODS USA L.L.C.
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By:
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Its:
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SCHEDULE A
TO SOFTWARE LICENSE AGREEMENT
DATED APRIL ___, 2005
SOFTWARE: Paramount's software systems which provides
homebuilders with the following functions:
1. Sales and land development
2. Warranty and calendar
3. Custom reports
4. Work orders
5. Job costing
6. Layered takeoffs
7. Options and design centers
8. Purchase orders
9. Scheduling
10. Accounting
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